Islamic Law And Its Impact On Arbitration Of Ip Cases

Moslem right And Its Impact On arbitrement Of Ip Cases Moslem virtue And Its Impact On arbitrement Of Ip Cases In marrow east With Special Reference To JordanIntroductionThe justice of clever sight is unitary of the argonas of police force that has emerged in Jordan relatively recently. The reasons for such(prenominal)(prenominal)(prenominal)(prenominal) late publication of happy prop faithfulness in Jordan be that on that point were no able conditions for instruction of this land of im breakiality in this jurisdiction.Due to this occurrence, hooks in Jordan were scarce able to decide such show windows be show cutting of their complexity and lack of urgency skills and acquaintance of judges in discovered argona of jurisprudence. It is for this reason it seems that Jordanian jurisprudenceful practiti cardinalrs saw the necessity of establishing courts which would adjudicate such shifts.The uprightness of ingenious billet is angiotensin converti ng enzymeness of the argonas that pose several(prenominal) ch al championnessenges to trade in argona, where sellers of unauthorized products or products which assault to a lower placestanding office rights be widespread. It is fateful truth of around Arab countries and in this respect it seems that military capability of able dimension legislation saw its goal. close to would submit Why would Jordan need gifted property fair play at completely? It does non deliver such potential in shape to enforce such complicated legislation and modus operandis. The answer lies in change magnitude splendor of Jordan as a financial and trade total of mettle East, which would compete and take exception such centers as U.A.E. and Qatar.In direct to train such position in market, Jordan, first, has to visit that legislation is in musical harmony with world-wideistic trade and financial legislation. Amidst them, intellectual property rightfulness, if non or so autho ritative, yet when occupies signifi shtupt place to such an point that it has to increase awargonness and skills in this bea.Simultaneously, one of the important and flexible methods of alternative animosity answer as arbitrament has to play here crucial function. arbitrement is one of the atomic number 18as of alternative difference of judgement resolution, necessity of which has increased along with globalisation of inter depicted object trade. It has been seen as one of the argonas which can significantly simplify international trade procedure with step forward bringing unsolvable complexities into the disdain which has already gone(a) into complexities.The arbitrament of cases related to to intellectual property is contrasting and complicated matter, which can non be explained with summon to arbitrament of normal and common cases that emerge in the stock of international or local trade. It requires constabularyyers which be non single legato tho too s kil guide in matters of IP fair play and confide. much(prenominal) faithfulnessyers, the quantity of which is few in Jordan, can be and should be handy in this argona in place to ensure the integrity of arbitrement procedures in IP cases.As a rule, dictatorial bulk of companies and execute of uprightnessyers can non trust to res publica courts, which would take up intellectual property cases along with ordinary cases and be put down to inevitable error by doing incorrect analogies in conclusiveness of such cases. unremarkably parties which address their cases to terra firma courts ar unremarkably un quelled non only(prenominal) with level of association of judges in intellectual property cases unless excessively with complexity of procedure.In this sense, one should realize the importance of arbitrement methods for adjudication of intellectual property cases. Jordan, it seems, score realized the serious saintly terror register by this problem and pul l in taken number of measures in arrangement to answer to this ch every(prenominal)enges.One of the notable measures is truely sending rectitude students foreign in roll to prep atomic number 18 future judges narrow on intellectual property disputes. This has been through effectively and sacrosanct majority of students ar in prominent institutions which ar really strong in this argona of ratified philosophy. sanction is creation of individual legislation in this area, yet on that point are al around gaps which are inevitable and these gaps should be filled in order to harmonize Jordanian legislation in the field of arbitrament and IP justice.Jordan has examples to learn from and it is its closest neighbors such as U.A.E., Qatar and Bahrain. These countries redeem for the first time skills and follow up in these fields of justice. It is not only explained by teemingness of their experts however in like manner rapid expansion of their economies and integrat ion into the world providence.In this respect, Jordan is in much convenient position than separatewisewise countries since even the enculturation of its neighbors is similar to Jordan. The similarity in culture and tradition is one of the factors that launch harmonization of Jordanian IP legislation much easier and painless.Besides, the lack of dumbfound and bopledge not only in IP constabulary, tho as well in arbitrament cover in IP case makes Jordan under attack(predicate) to the challenge posed by the legitimate world of these neighbors. It is for this reason the necessity of this talk is realized. in that location is overly Moslem factor that raises issue. Since Jordanian governing body recognizes Islam as a religion of state and due to historical plenty when Moslem law dominated Jordan for centuries, it raises headspring Has Moslem law act upond military issue and ontogenesis of arbitration in Jordan as well as of intellectual property law?In this respect, Akhtar remarked on that point outlast considerable variations in the in-between East on the incorporation and cover of arbitration laws and the suffice and procedure in enforcing arbitrational poses, which are complicated further by the differing fundamental interaction between sharia law law and Western systems of law in apiece awkward. in that respectfore, the major goal of this thesis is to examine whether Muslim judicial principles in fact had an impact on burgeon forthment of arbitration and intellectual property law in Jordan. It will be tried and true on the basis of case related to IP law obdurate in arbitration courts of Jordan. The importance of this topic is realized in the consideration of emergent importance of Jordan as emerging economic and financial drawing card in center(a) East. It is also realized due to the fact that Muslim law is a dominant system in contemporary Middle East.This dissertation consists of quartette parts (i) first chapt er shortly examines the basic tenets of Muslim law (ii) second chapter instructly examines arbitration system in Jordan (iii) 3rd chapter briefly analyses intellectual property law in Jordan and (iv) final chapter, an important one scrutinizes Jordanian intellectual property disputes arbitration for compliance with Muslim law.Overview Of Jordanian And Moslem honorJordan is one of the countries in the world that genetical several features of different legislations at a time. One of the major influences was faggot legislation, since Jordan was under their dominancy for al closely 700 years. In this respect, it can be said that it has been influence not only by Muslim law, which was the law of Ottoman empire provided also by features of ludicrous Ottoman law, which coexisted in one path with Moslem law.Legislation And Judicial System In Jordan at once Jordan became a subject of European colonization in 19 atomic number 6, it of necessity embraced about features of Europ ean legislation. Yet, at present time, Jordanian legislation is move diversity of European and Moslem elements.The system of governing in Jordan is parliamentary monarchy. Yet, it should be tell that monarchy in Jordan is almost absolute since all powers are vested in the King of Jordan who is considered to be direct descendant of prophet Muhammad (S.A.V.)As in another(prenominal) countries of the world, the power in Jordan is divided into three branches, namely, legislative, administrator and judicial. However, dissimilar other countries King whitethorn interfere inside carrying into action of legislative power or other in order to ensure his absolute status.The make-up of Jordan openly declares Islam as the religion of state. However, upon the close inquiry of Jordanian legislation, one cannot call it Moslem state since it contains elements which are opposite to Muslim legitimate principles.Unlike Saudi governance which declares Islam as a arising of law, Jordan constitution declares Islam only as a religion of state. It is, however, not urinate what it implies. no(prenominal)etheless, one can see the consequences of Islam being declared as a religion of state, in the statutory system, where at that place is duality of courts.Jordanian courts are divided into secular and ghostlike courts. While phantasmal courts are not only Muslim notwithstanding also ecclesial or Christian courts, which are free to decide family matters of their respective phantasmal communities. The competence of religious courts, including Moslem, are not extended to the matters of mercantile and administrative law. at that placefore, matters pertaining to commercial or administrative law are heady in secular courts. Officially, Jordanian constitution declares that thither are three types of courts (i) elegant courts (ii) religious courts and (iii) finicky(a) courts. Yet, cultivated courts also peck criminal cases along with civil cases and cases of ad ministrative field. spiritual courts are divided into Muslim and courts of other non-Muslim communities. Both of them hear cases indoors s contend of their competence. It is phasele that Sharia courts also hear cases which are related to the compensation of blood money where one of the parties are not Muslims. salary of blood-money, differently called diya, is one of the old features of Moslem criminal law and it is surprise that it is not in competence of secular courts only religious.The constitution does not define how special courts function, leaving this matter to the law. Yet, there are royal courts which are intentional to deliver law and one of them is High Tribunal, the single-valued function of which to check constitution when required by government.It is also necessary to append brief overview about Shari a, which occupies significant position in Jordanian legislation. Sharia, otherwise called Muslim law, is one of the ancient systems of law that has been pr eserved since 7 carbon A.D. with round modifications.The inaugurations of Sharia, match to Muslim belief, are volume and Sunna. First being consecrate Book of Islamic religion and second are traditions or precedents of visionary of Islam. Besides, official Islamic dogma declares that Islamic jurisprudence functions accord to iv sources of law, record phonograph recording, Sunna, ijma and qiyas. Ijma, otherwise called consensus is being interpreted differently by four schools of Islamic law and same goes with qiyas, which is otherwise called analogy. Four schools of Islamic law that has emerged at different periods of time during first century of Islam, principally part upon reading of major or secondary sources of Islamic law.Islamic law does not recognize freedom of contract and prohibits such elements of trade and economy as charging interest, fortuity and gambling. In order to come with these principles, Islamic lawyers has demonstrable real methods and forms wh ich would stop Muslim to operate in one or another(prenominal) behavior in business world.One of the remarkable features of saucy Islamic jurisprudence is creation of Islamic banking, which replaces interest with profit-and-loss sharing concept, Islamic amends that operates in almost similar fashion and other new-sprung(prenominal) concepts as Islamic bonds, otherwise called sukkuk.As farthermost as intellectual property concerned, Islamic law protects inviolability of property as well as its manifestations in different forms. The same applies to whatsoever form of intellectual property, be it trademark or invention.Arbitration in Islamic law is unique, since arbitration has been inbuilt to Arab culture and was called hakama. Hakams were umps in ancient Arabia and judged according to Arab customs and traditions. Therefore, there is nix new in arbitration which is not familiar to Islamic lawyers.In last century, the position of Islamic law in disputes that were decided in arbitration courts was widely ignored. It is evident from several cases. In pet social functionum maturement (Trucial Coasts) Ltd. V. Shaikh of Abu Dhabi, Lord Asquith, the arbitrator ironically observed it would be notional to evoke that in this very primitive region there is most(prenominal) colonized body of legal principles applicable to the construction of new-fangled commercial instruments. some other remark, done by arbitrator in Ruler of Qatar v. world(prenominal) nautical Oil Company Ltd., was bitterer and arrogant I am satisfied that the Islamic law does not contain any principles which would be sufficient to interpret this particular contract.Such excesses and bitter remarks were summed up and characterized in the adjacent terms In universal, the legal community throughout the Arab world is in time manifesting its detestation to transnational arbitration chiefly as a resultant of the big publicity devoted to the criticism of received unfortunate arbitra tional awards rendered as of 1951 by western arbitrators who excluded, with terms of a humiliating character, the coats programme of the national applicable legal systems of countries like Abu Dhabi or Qatar.It should be also noted that Jordanian legislation does not unspoiledy implement precepts of Islamic law such as prohibition of interest or insurance. There are banks and insurance companies in Jordan which operate according to Western principles of banking and insurance. The companies and banks in Jordan are free to operate in the mode they choose to be most efficient for them. There is no incumbrance on the part of Jordanian government in this sense.Defining Islamic justnessThere is no single or unified description of Islamic law. miscellaneous scholars go game various definitions. I shall not go into each definition offered nevertheless shall arbitrarily explicate some of them. One of the famous scholars of Islamic law, Joseph Schacht offered an interesting definition for Islamic law Islamic law is the compendium of the Islamic spirit, the most typical manifestation of the Islamic way of life, the subject matter of Islam itself. Goitein, it seems, offered more nice and comprehensive definition Islamic religion is characterised by the protuberance of legal conceptions in its systems The Sharia, or holy law, is its very nerve center and Fiqh, or religious jurisprudence, is its science (ilm) par excellence. The minute observation of many another(prenominal) commandments is its most conspicuous practical aspect the free fellowship of religious scholars, who do not need authorisation by any government to interpret, develop and apply its law, is its most representative body, and even purely legal sections of the Fiqh are studied as an act of worship. These two definitions are not exhaustive precisely reflect true essence of Islamic law. Schachts way of life and Goiteins religious jurisprudence constitute what is called Shariah in Arabic.Moreove r, Islamic law cannot be compared with common or continental legal systems. It is because latter(prenominal) do deal and embrace all areas of law, whereas Islamic law in general deal with hole-and-corner(a) law, leaving aside public law. Therefore, the cite of some countries that since their legislation is found on Shariah, their law is being modulate by overlord law is not correct. The Shariah only applies to matters of private law in these countries and the public law has been imported from Western holds.The majority of scholars switch long been recognizing account book as a major source of Islamic law, sometimes without examining what it stands for. It was Schacht who first suggested that Shafii, prominent Islamic jurist, paid scarcely lip-service to volume as a source of law in his jurisprudential theory. Certainly, major principles of Islamic law has been deducted from leger that it is only a major and in a number of cases, we discover that Muslim jurists are depe ndant or totally reliant on other sources earlier than volume without hesitation.The holy book of Islam or Muslims all over the world, rule book is believed by Muslims to start out been revealed via Archangel Gabriel to Muhammad, who is counted by Muslims as twain visionary and courier of God. al-Quran is law but law in a spiritual sense. If you ask a Muslim What is your law (Sharia)? He or she would respond record book without realizing whether it is spiritual or actual law.For the habits of present study, ledger is a source of law but to a limited extent since a major proportion of rules and judgments is being extracted from other sources of law and via different methods of legal reasoning. It is not however realized by ordinary Muslim as such, and even by Muslim jurist, who would suggest that sources for such rulings is Sharia and all rules, embodied in Sharia are immutable and should not be a subject of any challenge by anyone. in advance spell to critical points, it is crucial to explore basics of Quran.Quran is the holy book of Islamic religion. It is said to have been revealed during 23 years, once Prophet Muhammed started his agency among Arab people. The Quran derives from the news program qara which denotes in Arabic, reciting or reading. It is also take a firm stand that with a same meaning it is cited in Old Testament in Hebrew language. There are other call which are designed for Quran, such as Quran al-Majid or al-Quran ash-Sharif or Furqan, etc. For the purpose of present study, it shall be called Quran, which is rather easy to refer and this way we shall overturn confusion.The divine legislation is said to have been realised through apocalypse of Quran in stages as I have mentioned earlier. The red-brick scholars as well as immaculate jurists were still unsure about specific role of Quran as a source of legislation. It is not attain whether the role of Quran corresponds to the hierarchy where it has been hoisted to t he primary position. In fact, Quran has never been a primary source as we understand a primacy in modern jurisprudence. Muslim jurists would often rule according to verse of Quran but not a principle or spirit that it implies. They would even up a lip-service to Quran as a source of all legislation, but in fact they would disregard those rules of Quran that should have been regarded in precise occasion.The precise role of Quran is baffling to define it is because the primacy of Quran has been overshadowed by other sources and methods of law. Quran has always been mentioned along with Sunna, second sources of Islamic law which we shall have occasion to discuss in the next paragraph. In order to try out the position of Quran as a source of law, allow us go through at some examples of utilization of Quran in classic Islamic jurisprudence.The predictive Traditions or hadith as called in Arabic form a second source of law in hierarchy of sources of Islamic law and jurisprudence. I t does not only occupy this position therefore but sometimes shares dominancy with Quran. The difference that emerged between Muslim jurists and posterior led to establishment of schools of law was caused by diverging interpretation of Prophetic Tradition. From kind cost of Hanafis to strict compliance of Zahiris, they all dispute on nature of Prophetic Traditions as a source of law. Sometimes their infringe went as far as one realise that it is rather silliness than discursive argument.The word ijma, which is basically translated as collecting or assembling, in a legal sense has caused a voltaic pile of debates over its validity. It is sometimes viewed as a consensus of any jurists or Muslims in general. Some blaspheme that it is consensus of primeval Muslims Companions over common postulates of faith and religion.The consensus index be reached if it is nemine contradicente select in practice or custom as in the case of international law. Second, consensus capability be uttered in respect of legitimate ruling by majority of either scholars or jurists. Finally, it can be e silentio support for original opinion by majority of jurists that have the right to adjudicate their independent opinion.It is not iron out from Islamic jurisprudential theory when ijma should be employed and what certain conditions are. Some jurists, Hanafi, for instance, usually in their judgments, say there has been consensus on this issue or question but they never clarified how and why such consensus has been reached among them.We also do not know whether we whitethorn employ ijma concept in modern scene and whether it shall be binding on all Muslims or adopt by them as a constituent part of Islamic law. In Sunni jurisprudence, we know that by way of ijma, certain jurists united into groups affiliated with rule opinion of single jurist, which later became known as schools of law or madhahib. It has also been asserted that ijma on common legal issues has been reached in 8th century by respective founders of madhahib there is no way to re-visit these concepts or judgments.When intercommunicate of analogy principle in Islamic law, it is not lightheaded whether it is absolute or not or whether it is logically applicable to all cases. The word qiyas itself means to compare and it is regarded as one of the major sources of Islamic law.Islamic jurists themselves stipulate four predominant conditions of analogyThe precept or practice upon which it is founded moldiness(prenominal) be of common (amm) and not of special (khass) applicationThe cause (illa) of the injunction must be known and dumbThe decision must be based upon either the Quran, the Sunna, or the IjmaThe decision arrived at must not be contrary to anything declared elsewhere in the Quran and Sunna.The fourth stipulation raises some concerns. As we have discussed earlier, there are a lot of contradictions between Quran and Sunna, and even indoors Quran and within Sunna. The jurists attempted to decide such contradictions by insist that there cannot be hypothetically any passage of armss between these sources and even within these sources they exist and it is reality. This factor also serves as a great hindrance in deriving rules or judgments from primary sources of Islamic law.Even though these rules has been developed and elaborated by jurists there are still a lot of controversies with application of this principle. It is caused by a different degree of application in schools of law and conflict between jurists whether such analogy might be applied when the necessity in such application is gather. Thus, for instance, it is not clear why principle of justice embodied in Quran might not be equally applied to all subjects of Islamic state, be it Muslim or non-Muslim. Normally, Islamic jurist would object truism that since Quran is only for Muslims, its injunctions are only applicable to Muslims. There is no logic which might be applied but incoherence in r easoning, sometimes leading to absurd conclusions.Concluding RemarksIn present chapter, we have discussed general legal conceptions that exist in Jordanian and Islamic law. There is a big difference between them because of the nature of legislation. Islamic law is generally religious, whereas Jordanian is secular even though Constitution claims that Islamic is a state religion.In majority of Islamic countries, a fact that Islamic is a religion of state is merely lip-service to Islamic as a religion of people. It does not go further than that, except some countries as Iran, Pakistan and Saudi Arabia. But even legislation of these countries demonstrates how secular they are in their nature.It does not however mean that Jordan lack of Islamic legal perceptiveness there are some aspects of Islamic law in Jordanian legislation, as we have seen previously. The matters of marriage, divorce, inheritance and religious endowment are mainly under realms of Islamic law. Yet, on the other hands , similar matters that draw close with other religious communities are decided based on their respective religious law.However, the matters which are related to arbitration and intellectual property are mainly based on secular, precisely on European model based laws. Therefore, purpose of forthcoming chapters will be to examine whether they comply with Islamic law in general.Arbitration System In Jordan And accord With Islamic Law And Its Implications For Intellectual Property LawThis chapter summarizes the current state of arbitration system in Jordan and issue of its compliance with Islamic law. It is done with purpose to acquaint readers with main aspects of these systems and legislation, so he or she has full catch when looking through forthcoming chapters.Arbitration In JordanThe arbitration process in Jordan is being regulated by special law Law No. 31 of 2001 otherwise called Jordan Arbitration Law. It is not unique uncomplete has it been adopted from international law, but from Egyptian Arbitration bout No. 27 of 1994, which in turn has been adopted from UNCITRAL Model Law 1985.The law consists of 7 parts and 56 articles. It can be organize consequently (1) General provisions ( articles 1-8) (2) Arbitration covenant (Articles 9-13) (3) Arbitration court of law (Articles 14-23) (4) Arbitration transactions (Articles 24-35) (5) Arbitral award and termination proceedings (Articles 36-47) (6) vacuum of arbitral award (Articles 48-51) (7) Enforcement of awards (Articles 52-56).The Art. 3 makes the scope of law absolute it extends to any arbitration proceedings in Jordan and to any cases whether they derive from contractual dispute or not. Neither does it differentiate between commercial or civil disputes both of them are within scope of this law.The Art. 5 allows not only assure parties to choose the arbitration procedure but also a one-third party which shall be able to choose such procedure.The Art. 8 explicitly prohibits the intervention by state courts yet, it stipulates that the arbitration tribunal may ask the intervention of state courts where former needs the participation of experts, witnesses, etc.As far as arbitration symmetricalness is concerned, Art. 9 allows only those persons, be it physical or legal, which has legal capacity, to conclude such agreement. It does not allow arbitration on matters which are on amiable compositeaur basis.The arbitration agreement is valid only if in writing, according to Art. 10a, yet, the form of create verbally agreement is flexible. It can be contained in exchange of letters, faxes, etc. It has been also reaffirmed by Jordanian homage of Cassation which stated the arbitration clause as established should be written, clear and explicit as well, by justice of Article 10/A of the Arbitration Law No. 31of 2001.The law also allows parties to render their dispute to arbitration whilst in state court, in which case state court has the right to refer to arbitration tribunal a nd its lineament shall be viewed as arbitration agreement in writing.As far as arbitration tribunal concerned, Art. 14a and b, establishes that number of arbitrators shall be odd, otherwise it is void. If there is a disagreement between parties then number of arbitrators is three.Noteworthy, the law reaffirms the emancipation of arbitration clause, which is according to Art. 22, is not dependent on other clause of underlying contract.The language of arbitration proceedings is Arabic but law allows the use of another language or other languages upon accept of parties, according to Art. 28a.Most importantly, Art. 17 upheld the principle of impartiality and independence of arbitrators and in involvement of this provision Court of Cassation further held all arbitral procedures, in which the challenged arbitrator has participated, including the arbitral award, shall be deemed void.These are the major aspects of arbitration law in Jordan. Besides, Jordan has also ratified the raw(a) York Convention on realisation and Enforcement of strange Arbitral Awards by the virtue of Jordanian Court of Cassation, where it was remarked It is understood from the Article (2) of Enforcement of Foreign Judgments Law No. 8 of 1952 that the inappropriate arbitral award which has been obligate and ratified by the forum court , shall be enforceable in Jordan in accordance with all the clauses and requirements, and does not conflict with any of the stipulated provisions of Article (7) of the said law.The verification of radical York Convention by Jordan should be viewed as positive development and beautiful for the alien companies who wish to deal with Jordanian companies or invest in Jordan. The same applies to IP disputes any friendship which would challenge Jordanian go with with the claim of breach of copyright or violation of other forms of intellectual property, are in convenience in the view of check of New York Convention.However, in his study of issues pertaining enforcement, Haddad critically commented Turning again to Jordanian Law which provides, as has just been seen, that a strange award must be enforceable in the place in which it was issued, which means that the award should have been reduced to a judgment in the abroad awkward.It implies that Jordanian legislation does not recognise validity of foreign sagacity as enforceable in Jordan. But he noted that this approach may be criticized since it may be trying in practice or even impossible to achieve this goal in certain circumstances, particularly in institutional arbitration. In this type of arbitration, it may kick the bucket that the parties concern in the proceedings including the arbitrators, and all other relevant factors have no relation whatsoever with the place of arbitration except that the proceedings were conducted there. In such a case, the foreign court may fair disclaim to enforce the award rendered in its country, and that means that the award may not be en forced in Jordan either.In such in question(p) situation, it is unclear how Jordanian legislation on arbitration would cope with this kind of problem. It seems to be paradoxical situation because award cannot be enforced either domestically or locally.It will also have some logical deductive reasoning for enforcement of foreign arbitral awards on intellectual property rights since majority of arbitral awards may not be enforced in foreign country since its enforcement should be accomplished in Jordan because of object of dispute. In such case, it is difficult to predict how arbitration courts and moreover state courts would deal with it.Enforcement Of Foreign Arbitration Awards In JordanOne of the problems that foreign company may set upon in Jordan is the problem of enforcement of award related to IP cases in Jordan. It is clear that certain IP cases may intervene with public policy and in this regard it is nearly impossible to assert such possibility may not arise.IP legislati on in Jordan being in gullible position sometimes may not offer effective solutions for parties which are from different countries. In this regard, one should closely take a look at public policy issues in Jordan.According to IP legislation, certain names cannot be registered as trademarks in Jordan. However what if the name of foreign company or brand coincides with the name trademark registration of which is contraband in Jordan? The company in this case would face difficulties in carrying out business and moreover it would face difficulties in enforcing award that has been rendered in foreign or international arbitration court.The case of Mitsubishi in U.S. showed how difficult it is to determine whether one case is subject to public policy or not. It has changed the contours of arbitrability in U.S. but the question arises can such case have implication for Jordanian arbitration system? One can answer positively, but one would be confused when it comes to IP arbitration.IP arb itration, as it has been seen, is a difficult and complex matter. It cannot be simply adjusted as in the case of ordinary commercial arbitration. The IP legislation is diverse and this kind may imply negative consequences for arbitration, since arbitrators should be expertise in all areasIslamic Law And Its Impact On Arbitration Of Ip CasesIslamic Law And Its Impact On Arbitration Of Ip CasesIslamic Law And Its Impact On Arbitration Of Ip Cases In Middle East With Special Reference To JordanIntroductionThe law of intellectual property is one of the areas of law that has emerged in Jordan relatively recently. The reasons for such late emergence of intellectual property law in Jordan are that there were no sufficient conditions for development of this area of law in this jurisdiction.Due to this fact, courts in Jordan were hardly able to decide such cases because of their complexity and lack of necessary skills and knowledge of judges in respected area of law. It is for this reason i t seems that Jordanian legal practitioners saw the necessity of establishing courts which would adjudicate such cases.The law of intellectual property is one of the areas that pose several challenges to trade area, where sellers of unauthorized products or products which breach intellectual property rights are widespread. It is inevitable truth of most Arab countries and in this respect it seems that position of intellectual property legislation saw its goal.Some would ask Why would Jordan need intellectual property law at all? It does not have such potential in order to enforce such complicated legislation and procedures. The answer lies in increasing importance of Jordan as a financial and trade center of Middle East, which would compete and challenge such centers as U.A.E. and Qatar.In order to ensure such position in market, Jordan, first, has to ensure that legislation is in harmony with international trade and financial legislation. Amidst them, intellectual property law, if n ot most important, but occupies significant place to such an extent that it has to increase sentience and skills in this area.Simultaneously, one of the important and flexible methods of alternative dispute resolution as arbitration has to play here crucial role. Arbitration is one of the areas of alternative dispute resolution, necessity of which has increased along with globalization of international trade. It has been seen as one of the areas which can significantly simplify international trade procedure without bringing unsolvable complexities into the business which has already gone into complexities.The arbitration of cases related to intellectual property is different and complicated matter, which cannot be explained with reference to arbitration of normal and common cases that emerge in the course of international or local trade. It requires lawyers which are not only fluent but also skilled in matters of IP law and practice. Such lawyers, the amount of which is few in Jord an, can be and should be trained in this area in order to ensure the integrity of arbitration procedures in IP cases.As a rule, majority of companies and lawyers cannot trust to state courts, which would consider intellectual property cases along with ordinary cases and are subject to inevitable error by doing incorrect analogies in decision of such cases. Usually parties which address their cases to state courts are usually unsatisfied not only with level of knowledge of judges in intellectual property cases but also with complexity of procedure.In this sense, one should realize the importance of arbitration methods for adjudication of intellectual property cases. Jordan, it seems, have realized the serious threat posed by this problem and have taken number of measures in order to respond to this challenges.One of the notable measures is certainly sending law students abroad in order to prepare future judges specialized on intellectual property disputes. This has been done effectiv ely and majority of students are in prominent institutions which are really strong in this area of law. Second is creation of respective legislation in this area, yet there are some gaps which are inevitable and these gaps should be filled in order to harmonize Jordanian legislation in the field of arbitration and IP law.Jordan has examples to learn from and it is its closest neighbors such as U.A.E., Qatar and Bahrain. These countries have foremost skills and experience in these fields of law. It is not only explained by abundance of their experts but also rapid expansion of their economies and integration into the world economy.In this respect, Jordan is in more convenient position than other countries since even the culture of its neighbors is identical to Jordan. The similarity in culture and tradition is one of the factors that make harmonization of Jordanian IP legislation much easier and painless.Besides, the lack of experience and knowledge not only in IP law, but also in ar bitration process in IP case makes Jordan vulnerable to the challenge posed by the legal world of these neighbors. It is for this reason the necessity of this dissertation is realized.There is also Islamic factor that raises issue. Since Jordanian constitution recognizes Islam as a religion of state and due to historical circumstances when Islamic law dominated Jordan for centuries, it raises question Has Islamic law influenced emergence and development of arbitration in Jordan as well as of intellectual property law?In this respect, Akhtar remarked there exist considerable variations in the Middle East on the incorporation and application of arbitration laws and the practice and procedure in enforcing arbitral awards, which are complicated further by the differing interaction between Sharia law and Western systems of law in each country.Therefore, the major goal of this dissertation is to examine whether Islamic legal principles in fact had an impact on development of arbitration a nd intellectual property law in Jordan. It will be tested on the basis of case related to IP law decided in arbitration courts of Jordan. The importance of this topic is realized in the context of rising importance of Jordan as emerging economic and financial leader in Middle East. It is also realized due to the fact that Islamic law is a dominant system in contemporary Middle East.This dissertation consists of four parts (i) first chapter briefly examines the basic tenets of Islamic law (ii) second chapter briefly examines arbitration system in Jordan (iii) third chapter briefly analyses intellectual property law in Jordan and (iv) final chapter, an important one scrutinizes Jordanian intellectual property disputes arbitration for compliance with Islamic law.Overview Of Jordanian And Islamic LawJordan is one of the countries in the world that inherited several features of different legislations at a time. One of the major influences was Ottoman legislation, since Jordan was under t heir dominancy for almost 700 years. In this respect, it can be said that it has been influence not only by Islamic law, which was the law of Ottoman empire but also by features of unique Ottoman law, which coexisted in one line with Islamic law.Legislation And Judicial System In JordanOnce Jordan became a subject of European colonization in 19 century, it inevitably embraced some features of European legislation. Yet, at present time, Jordanian legislation is surprising mixture of European and Islamic elements.The system of government in Jordan is parliamentary monarchy. Yet, it should be noted that monarchy in Jordan is almost absolute since all powers are vested in the King of Jordan who is considered to be direct descendant of Prophet Muhammad (S.A.V.)As in other countries of the world, the power in Jordan is divided into three branches, namely, legislative, executive and judicial. However, unlike other countries King may interfere within functioning of legislative power or othe r in order to ensure his absolute status.The constitution of Jordan openly declares Islam as the religion of state. However, upon the close examination of Jordanian legislation, one cannot call it Islamic state since it contains elements which are contrary to Islamic legal principles.Unlike Saudi constitution which declares Islam as a source of law, Jordan constitution declares Islam only as a religion of state. It is, however, not clear what it implies. Nonetheless, one can see the consequences of Islam being declared as a religion of state, in the legal system, where there is duality of courts.Jordanian courts are divided into secular and religious courts. While religious courts are not only Islamic but also ecclesial or Christian courts, which are free to decide family matters of their respective religious communities. The competence of religious courts, including Islamic, are not extended to the matters of commercial and administrative law.Therefore, matters pertaining to commer cial or administrative law are decided in secular courts. Officially, Jordanian constitution declares that there are three types of courts (i) civil courts (ii) religious courts and (iii) special courts. Yet, civil courts also hear criminal cases along with civil cases and cases of administrative field.Religious courts are divided into Islamic and courts of other non-Muslim communities. Both of them hear cases within scope of their competence. It is interesting that Sharia courts also hear cases which are related to the compensation of blood money where one of the parties are not Muslims. Compensation of blood-money, otherwise called diya, is one of the old features of Islamic criminal law and it is surprising that it is not in competence of secular courts but religious.The constitution does not define how special courts function, leaving this matter to the law. Yet, there are tribunals which are designed to interpret law and one of them is High Tribunal, the purpose of which to int erpret constitution when required by government.It is also necessary to provide brief overview about Shari a, which occupies significant position in Jordanian legislation. Sharia, otherwise called Islamic law, is one of the ancient systems of law that has been preserved since 7 century A.D. with some modifications.The sources of Sharia, according to Muslim belief, are Quran and Sunna. First being Holy Book of Islamic religion and second are traditions or precedents of Prophet of Islam. Besides, official Islamic dogma declares that Islamic jurisprudence functions according to four sources of law, Quran, Sunna, ijma and qiyas. Ijma, otherwise called consensus is being interpreted differently by four schools of Islamic law and same goes with qiyas, which is otherwise called analogy. Four schools of Islamic law that has emerged at different periods of time during first century of Islam, mainly diverge upon interpretation of major or secondary sources of Islamic law.Islamic law does not recognize freedom of contract and prohibits such elements of trade and economy as charging interest, fortuity and gambling. In order to comply with these principles, Islamic lawyers has developed certain methods and forms which would allow Muslim to operate in one or another way in business world.One of the remarkable features of new Islamic jurisprudence is creation of Islamic banking, which replaces interest with profit-and-loss sharing concept, Islamic insurance that operates in almost similar fashion and other new concepts as Islamic bonds, otherwise called sukkuk.As far as intellectual property concerned, Islamic law protects inviolability of property as well as its manifestations in different forms. The same applies to any form of intellectual property, be it trademark or invention.Arbitration in Islamic law is unique, since arbitration has been inherent to Arab culture and was called hakama. Hakams were arbitrators in ancient Arabia and judged according to Arab customs and tr aditions. Therefore, there is nothing new in arbitration which is not familiar to Islamic lawyers.In last century, the position of Islamic law in disputes that were decided in arbitration courts was widely ignored. It is evident from several cases. In Petroleum Development (Trucial Coasts) Ltd. V. Shaikh of Abu Dhabi, Lord Asquith, the arbitrator ironically observed it would be fanciful to suggest that in this very primitive region there is any settled body of legal principles applicable to the construction of modern commercial instruments.Another remark, done by arbitrator in Ruler of Qatar v. International Marine Oil Company Ltd., was bitterer and arrogant I am satisfied that the Islamic law does not contain any principles which would be sufficient to interpret this particular contract.Such excesses and bitter remarks were summed up and characterized in the following terms In general, the legal community throughout the Arab world is still manifesting its hostility to transnational arbitration mainly as a result of the great publicity devoted to the criticism of certain unfortunate arbitral awards rendered as of 1951 by western arbitrators who excluded, with terms of a humiliating nature, the application of the national applicable legal systems of countries like Abu Dhabi or Qatar.It should be also noted that Jordanian legislation does not fully implement precepts of Islamic law such as prohibition of interest or insurance. There are banks and insurance companies in Jordan which operate according to Western principles of banking and insurance. The companies and banks in Jordan are free to operate in the mode they choose to be most efficient for them. There is no hindrance on the part of Jordanian government in this sense.Defining Islamic LawThere is no single or unified definition of Islamic law. Various scholars offer various definitions. I shall not go into each definition offered but shall arbitrarily explicate some of them. One of the famous scholars of I slamic law, Joseph Schacht offered an interesting definition for Islamic law Islamic law is the epitome of the Islamic spirit, the most typical manifestation of the Islamic way of life, the kernel of Islam itself. Goitein, it seems, offered more precise and comprehensive definition Islamic religion is characterised by the prominence of legal conceptions in its systems The Sharia, or holy law, is its very essence and Fiqh, or religious jurisprudence, is its science (ilm) par excellence. The minute observation of many commandments is its most conspicuous practical aspect the free fellowship of religious scholars, who do not need authorisation by any government to interpret, develop and apply its law, is its most representative body, and even purely legal sections of the Fiqh are studied as an act of worship. These two definitions are not exhaustive but reflect true essence of Islamic law. Schachts way of life and Goiteins religious jurisprudence constitute what is called Shariah in Ar abic.Moreover, Islamic law cannot be compared with common or continental legal systems. It is because latter do deal and embrace all areas of law, whereas Islamic law mostly deal with private law, leaving aside public law. Therefore, the claim of some countries that since their legislation is based on Shariah, their law is being regulated by divine law is not correct. The Shariah only applies to matters of private law in these countries and the public law has been imported from Western models.The majority of scholars have long been recognizing Quran as a major source of Islamic law, sometimes without examining what it stands for. It was Schacht who first suggested that Shafii, prominent Islamic jurist, paid merely lip-service to Quran as a source of law in his jurisprudential theory. Certainly, major principles of Islamic law has been deducted from Quran but it is only a major and in a number of cases, we discover that Muslim jurists are dependant or totally reliant on other sources rather than Quran without hesitation.The holy book of Islam or Muslims all over the world, Quran is believed by Muslims to have been revealed via Archangel Gabriel to Muhammad, who is regarded by Muslims as both Prophet and Messenger of God. Quran is law but law in a spiritual sense. If you ask a Muslim What is your law (Sharia)? He or she would respond Quran without realizing whether it is spiritual or actual law.For the purposes of present study, Quran is a source of law but to a limited extent since a major proportion of rules and judgments is being extracted from other sources of law and via different methods of legal reasoning. It is not however realized by ordinary Muslim as such, and even by Muslim jurist, who would suggest that sources for such rulings is Sharia and all rules, embodied in Sharia are immutable and should not be a subject of any challenge by anyone. Before turning to critical points, it is crucial to explore basics of Quran.Quran is the holy book of Islamic r eligion. It is said to have been revealed during 23 years, once Prophet Muhammed started his mission among Arab people. The Quran derives from the word qara which denotes in Arabic, reciting or reading. It is also asserted that with a same meaning it is cited in Old Testament in Hebrew language. There are other names which are designed for Quran, such as Quran al-Majid or al-Quran ash-Sharif or Furqan, etc. For the purpose of present study, it shall be called Quran, which is rather easy to refer and this way we shall avoid confusion.The divine legislation is said to have been established through revelation of Quran in stages as I have mentioned earlier. The modern scholars as well as classic jurists were still unsure about precise role of Quran as a source of legislation. It is not clear whether the role of Quran corresponds to the hierarchy where it has been hoisted to the primary position. In fact, Quran has never been a primary source as we understand a primacy in modern jurispru dence. Muslim jurists would often rule according to verse of Quran but not a principle or spirit that it implies. They would pay a lip-service to Quran as a source of all legislation, but in fact they would disregard those rules of Quran that should have been regarded in specific occasion.The precise role of Quran is difficult to define it is because the primacy of Quran has been overshadowed by other sources and methods of law. Quran has always been mentioned along with Sunna, second sources of Islamic law which we shall have occasion to discuss in the next paragraph. In order to demonstrate the position of Quran as a source of law, let us look at some examples of utilization of Quran in classic Islamic jurisprudence.The Prophetic Traditions or hadith as called in Arabic form a second source of law in hierarchy of sources of Islamic law and jurisprudence. It does not only occupy this position indeed but sometimes shares dominancy with Quran. The difference that emerged between Musl im jurists and later led to establishment of schools of law was caused by diverging interpretation of Prophetic Tradition. From liberal approach of Hanafis to strict compliance of Zahiris, they all dispute on nature of Prophetic Traditions as a source of law. Sometimes their conflict went as far as one realise that it is rather absurdity than logical argument.The word ijma, which is basically translated as collecting or assembling, in a legal sense has caused a lot of debates over its validity. It is sometimes viewed as a consensus of either jurists or Muslims in general. Some assert that it is consensus of early Muslims Companions over common postulates of faith and religion.The consensus might be reached if it is unanimously adopted in practice or custom as in the case of international law. Second, consensus might be uttered in respect of certain ruling by majority of either scholars or jurists. Finally, it can be e silentio support for certain opinion by majority of jurists that have the right to adjudicate their independent opinion.It is not clear from Islamic jurisprudential theory when ijma should be employed and what certain conditions are. Some jurists, Hanafi, for instance, usually in their judgments, say there has been consensus on this issue or question but they never clarified how and why such consensus has been reached among them.We also do not know whether we may employ ijma concept in modern context and whether it shall be binding on all Muslims or adopted by them as a constituent part of Islamic law. In Sunni jurisprudence, we know that by way of ijma, certain jurists united into groups affiliated with dominating opinion of single jurist, which later became known as schools of law or madhahib. It has also been asserted that ijma on common legal issues has been reached in eighth century by respective founders of madhahib there is no way to re-visit these concepts or judgments.When speaking of analogy principle in Islamic law, it is not clear wh ether it is absolute or not or whether it is logically applicable to all cases. The word qiyas itself means to compare and it is regarded as one of the major sources of Islamic law.Islamic jurists themselves stipulate four predominant conditions of analogyThe precept or practice upon which it is founded must be of common (amm) and not of special (khass) applicationThe cause (illa) of the injunction must be known and understoodThe decision must be based upon either the Quran, the Sunna, or the IjmaThe decision arrived at must not be contrary to anything declared elsewhere in the Quran and Sunna.The fourth stipulation raises some concerns. As we have discussed earlier, there are a lot of contradictions between Quran and Sunna, and even within Quran and within Sunna. The jurists attempted to decide such contradictions by asserting that there cannot be hypothetically any conflicts between these sources and even within these sources they exist and it is reality. This factor also serves a s a great hindrance in deriving rules or judgments from primary sources of Islamic law.Even though these rules has been developed and elaborated by jurists there are still a lot of controversies with application of this principle. It is caused by a different degree of application in schools of law and conflict between jurists whether such analogy might be applied when the necessity in such application is clear. Thus, for instance, it is not clear why principle of justice embodied in Quran might not be equally applied to all subjects of Islamic state, be it Muslim or non-Muslim. Normally, Islamic jurist would object saying that since Quran is only for Muslims, its injunctions are only applicable to Muslims. There is no logic which might be applied but incoherence in reasoning, sometimes leading to absurd conclusions.Concluding RemarksIn present chapter, we have discussed general legal conceptions that exist in Jordanian and Islamic law. There is a big difference between them because of the nature of legislation. Islamic law is mainly religious, whereas Jordanian is secular even though Constitution claims that Islamic is a state religion.In majority of Islamic countries, a fact that Islamic is a religion of state is merely lip-service to Islamic as a religion of people. It does not go further than that, except some countries as Iran, Pakistan and Saudi Arabia. But even legislation of these countries demonstrates how secular they are in their nature.It does not however mean that Jordan lack of Islamic legal taste there are some aspects of Islamic law in Jordanian legislation, as we have seen previously. The matters of marriage, divorce, inheritance and religious endowment are mainly under realms of Islamic law. Yet, on the other hands, similar matters that arise with other religious communities are decided based on their respective religious law.However, the matters which are related to arbitration and intellectual property are mainly based on secular, precisely on European model based laws. Therefore, purpose of forthcoming chapters will be to examine whether they comply with Islamic law in general.Arbitration System In Jordan And Compliance With Islamic Law And Its Implications For Intellectual Property LawThis chapter summarizes the current state of arbitration system in Jordan and issue of its compliance with Islamic law. It is done with purpose to acquaint readers with main aspects of these systems and legislation, so he or she has full understanding when looking through forthcoming chapters.Arbitration In JordanThe arbitration process in Jordan is being regulated by special law Law No. 31 of 2001 otherwise called Jordan Arbitration Law. It is not unique neither has it been adopted from international law, but from Egyptian Arbitration Act No. 27 of 1994, which in turn has been adopted from UNCITRAL Model Law 1985.The law consists of 7 parts and 56 articles. It can be structured thus (1) General provisions (Articles 1-8) (2) Arbitratio n agreement (Articles 9-13) (3) Arbitration tribunal (Articles 14-23) (4) Arbitration proceedings (Articles 24-35) (5) Arbitral award and termination proceedings (Articles 36-47) (6) Nullity of arbitral award (Articles 48-51) (7) Enforcement of awards (Articles 52-56).The Art. 3 makes the scope of law absolute it extends to any arbitration proceedings in Jordan and to any cases whether they derive from contractual dispute or not. Neither does it differentiate between commercial or civil disputes both of them are within scope of this law.The Art. 5 allows not only contracting parties to choose the arbitration procedure but also a third party which shall be able to choose such procedure.The Art. 8 explicitly prohibits the intervention by state courts yet, it stipulates that the arbitration tribunal may ask the intervention of state courts where former needs the participation of experts, witnesses, etc.As far as arbitration agreement is concerned, Art. 9 allows only those persons, be i t physical or legal, which has legal capacity, to conclude such agreement. It does not allow arbitration on matters which are on amiable compositeaur basis.The arbitration agreement is valid only if in writing, according to Art. 10a, yet, the form of written agreement is flexible. It can be contained in exchange of letters, faxes, etc. It has been also reaffirmed by Jordanian Court of Cassation which stated the arbitration clause as established should be written, clear and explicit as well, by virtue of Article 10/A of the Arbitration Law No. 31of 2001.The law also allows parties to render their dispute to arbitration whilst in state court, in which case state court has the right to refer to arbitration tribunal and its reference shall be viewed as arbitration agreement in writing.As far as arbitration tribunal concerned, Art. 14a and b, establishes that number of arbitrators shall be odd, otherwise it is void. If there is a disagreement between parties then number of arbitrators is three.Noteworthy, the law reaffirms the independence of arbitration clause, which is according to Art. 22, is not dependent on other clause of underlying contract.The language of arbitration proceedings is Arabic but law allows the use of another language or other languages upon consent of parties, according to Art. 28a.Most importantly, Art. 17 upheld the principle of impartiality and independence of arbitrators and in elaboration of this provision Court of Cassation further held all arbitral procedures, in which the challenged arbitrator has participated, including the arbitral award, shall be deemed void.These are the major aspects of arbitration law in Jordan. Besides, Jordan has also ratified the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards by the virtue of Jordanian Court of Cassation, where it was remarked It is understood from the Article (2) of Enforcement of Foreign Judgments Law No. 8 of 1952 that the foreign arbitral award which has been enforced and ratified by the forum court , shall be enforceable in Jordan in accordance with all the clauses and requirements, and does not conflict with any of the stipulated provisions of Article (7) of the said law.The ratification of New York Convention by Jordan should be viewed as positive development and attractive for the foreign companies who wish to deal with Jordanian companies or invest in Jordan. The same applies to IP disputes any company which would challenge Jordanian company with the claim of breach of copyright or violation of other forms of intellectual property, are in convenience in the view of ratification of New York Convention.However, in his study of issues pertaining enforcement, Haddad critically commented Turning again to Jordanian Law which provides, as has just been seen, that a foreign award must be enforceable in the place in which it was issued, which means that the award should have been reduced to a judgment in the foreign country.It implies that Jordanian legislation does not recognise validity of foreign judgement as enforceable in Jordan. But he noted that this approach may be criticized since it may be difficult in practice or even impossible to achieve this goal in certain circumstances, particularly in institutional arbitration. In this type of arbitration, it may happen that the parties involved in the proceedings including the arbitrators, and all other relevant factors have no relation whatsoever with the place of arbitration except that the proceedings were conducted there. In such a case, the foreign court may reasonably reject to enforce the award rendered in its country, and that means that the award may not be enforced in Jordan either.In such dubious situation, it is unclear how Jordanian legislation on arbitration would cope with this kind of problem. It seems to be paradoxical situation because award cannot be enforced either domestically or locally.It will also have some implication for enforcement of forei gn arbitral awards on intellectual property rights since majority of arbitral awards may not be enforced in foreign country since its enforcement should be accomplished in Jordan because of object of dispute. In such case, it is difficult to predict how arbitration courts and moreover state courts would deal with it.Enforcement Of Foreign Arbitration Awards In JordanOne of the problems that foreign company may encounter in Jordan is the problem of enforcement of award related to IP cases in Jordan. It is clear that certain IP cases may intervene with public policy and in this regard it is nearly impossible to assert such possibility may not arise.IP legislation in Jordan being in immature position sometimes may not offer effective solutions for parties which are from different countries. In this regard, one should closely take a look at public policy issues in Jordan.According to IP legislation, certain names cannot be registered as trademarks in Jordan. However what if the name of foreign company or brand coincides with the name trademark registration of which is illegal in Jordan? The company in this case would face difficulties in carrying out business and moreover it would face difficulties in enforcing award that has been rendered in foreign or international arbitration court.The case of Mitsubishi in U.S. showed how difficult it is to determine whether one case is subject to public policy or not. It has changed the contours of arbitrability in U.S. but the question arises can such case have implication for Jordanian arbitration system? One can answer positively, but one would be confused when it comes to IP arbitration.IP arbitration, as it has been seen, is a difficult and complex matter. It cannot be simply adjusted as in the case of ordinary commercial arbitration. The IP legislation is diverse and this diversity may imply negative consequences for arbitration, since arbitrators should be expertise in all areas