Islamic Arbitration, Islamophobia and some concerns - Guest post by Jay Sayta

Jay Sayta's post on Panchayat's as a mode of Alternative Dispute Resolution has received appreciation from several of our readers. In this post, he discusses the emergence of Islamic arbitration in the West and certain concerns surrounding it.

Both Islamic extremists and
Islamophobes find this slogan
attractive, though in different senses.

Muslim population has grown exponentially in the West. Most of the Muslims in the West are immigrants from Asia and Africa, migrating to the European countries after the era of decolonisation. Currently, there are around 16 million Muslims in the European Union, accounting for around 3% of the total population. The members of this sizeable Muslim population have attempted to use Sharia Law to solve various legal problems. This has led to the emergence of the concept of ‘Islamic Arbitration’- for Muslims having a dispute to legally solve their dispute using the principles of Sharia Law. The United Kingdom allows such ‘Islamic Arbitration’ centres to function legally within the framework of the Arbitration Act, 1996. 

What is Islamic Arbitration? 

Islamic Sharia Councils are now recognised as Arbitration Tribunals in the United Kingdom under the 1996 Arbitration Act, and are a part of the Alternate Dispute Resolution (ADR) procedure available to UK citizens. These Sharia Councils have the power to hear all civil and family matters; all parties must however agree to have the matter judged by an arbitrator. The arbiter’s order is final and binding on both the parties and the parties cannot appeal against the decision of the arbiter, unless there has been a clear violation of any existing law in the United Kingdom. The aggrieved party cannot appeal only on the ground that he/she would have been treated differently in a regular Court unless the judgment is outrageously unfair. The Muslim Arbitration Tribunal (MAT) thus provides arbitration services in more than six cities in the United Kingdom. Some of the matters which the MAT deals with include: forced marriages, domestic violence, commercial disputes, inheritance disputes and mosque disputes.

Panchayats as an ADR Mechanism - Guest post by Jay Sayta

The following is a guest post by Jay Sayta, a student of NUJS, discussing the traditional panchayats in India as a mode of dispute resolution. He argues that despite the movement towards formal ADR mechanisms including Lok Adalats, the Panchayats still play an important role and hence deserves attention. Jay's writings on gambling laws in India can be accessed here.

History, origins and meaning of Arbitration

Arbitration is generally defined to mean the determination of disputes between parties by a person appointed or chosen by them (arbiter). It is thus an informal method of dispute resolution with flexibility in procedures and rules.  As a method of dispensing justice, arbitration is not a modern phenomenon. The Western idea of private arbitration can be traced back to the Roman and Canon law. Arbitration as a dispute resolution mechanism was used in Common Law since the 14th Century.  However arbitration and other methods of dispute resolution have become of considerable significance after the 19th Century, with the advent of trans-national trade and commerce and with a view to have speedy and inexpensive means of resolving grievances. Thus there is a clause for arbitration in most modern day trading contracts.

History of panchayats dispensing justice 

However in India, panchayats (both village and the notorious ‘khap’ caste panchayats) have been arbitrating on property disputes, torts and even criminal offences like murder and rape since time immemorial. Panchayat (literally five wise men) is a representative body of the members of a particular caste or village (usually headed by the elder most people or the most respected and experienced elder).  One of the most important functions of these panchayats is the dispensing of justice.

Some interesting links on arbitration

1. Law and Other Things has published a guest post by Mr. Anirban Bhattacharya on how the Supreme Court of India has, on several occasions made a false assumption that the jurisdiction to appoint arbitrators under Section 11(6) of the Arbitration and Conciliation Act, 1996, is vested in itself. This assumption, which has been manifested by the Court repeatedly in its decisions and other documentations, goes against the dictum in S.B.P. and Co. Vs. Patel Engineering, (2005) 8 SCC 618 which had expressly held that the power of appointment under Section 11(6) is a judicial function vested in the Chief Justice, whose office is distinct from the Court over which he presides.