Author: Francois Dessemontet*
Published: January 2013
Description: Professor Hans Smit combined the innovative legal spirit of American teaching with the conservative doctrinal framework of European Law. Comfortably overlooking the world of arbitration that connects these two legal traditions, he would have enjoyed the questions of whether international arbitral tribunals are free to apply a third system, neither common law nor civil law, but soft law, and how religious law, if understood as “soft law” in the meaning of “non-legal law” or “para-legal law” should be applied by them, if at all. What soft law, halakha and sharia, or other religious laws have in common may not be “softness” in the usual sense. They are, however, all systems of law that do not originate in an Act of Parliament or in the case law of State courts, with the exception of the codification of sharia in some Muslim countries and sharia being declared applicable by the constitution or legislation of a State. This is the case, for example, in Iran, Saudi Arabia, Sudan and might well be the case in many more Middle East countries in the years to come due to the Arab Spring. Further, what religious laws and soft law have in common is that they are not “the law of the land” in the usual meaning of that expression in the United States or England, nor “the law of a country” within the meaning of Article 1 of the Rome Convention of 1980 on the Law Applicable to Contractual Obligations, and the subsequent enabling legislation in the European countries. Therefore, the problems raised for an arbitral tribunal that is requested to apply soft law and religious law are similar in nature, regarding both the general acceptance of these rules as applicable law and the restrictions on their efficacy that derive from public policy and lois d’application immédiate.
Of course, this article only deals with international commercial arbitration and does not encompass the particulars of family and inheritance law in Islamic or Judaic arbitration (“beth din”). Thus, the Western endeavors to exclude the application of Islamic law in England, Ontario and in a dozen U.S. states will not …
*Professor Emeritus, University of Lausanne; Committee Member, Swiss Arbitration Association; Of Counsel, Dessemontet & Ghosn, Lausanne.