In the name of God, the Most Gracious, the Most Merciful. Praise be to God, Lord of the world, and prayers and peace be upon the most honorable messengers and the seal of the Prophet and patron saint of the Ummah who has conveyed the message to us and performed the trust and recommended us to seek refuge in God from the demise of your grace and turn of your well-being and your abrupt resentment and wrath.
It is recognized that the arbitration cases are totally based on the principle of the authority of the parties’ will hence the Arbitration Cases most often are not held unless there is an agreed “Arbitration Clause” within the contractual relationship in the subject matter of the dispute, or with an “Arbitration Agreement” that controls the parties’ will in order to settle the dispute through Arbitration. Accordingly, the Arbitration Cases in Ad Hoc Arbitration, including their regulatory deadlines, are determined by agreement of the parties to the Arbitration cases or through the competent judicial authority. As for institutional arbitration, those procedures and deadlines are set by the Reputed Tribunal in which Arbitration is practiced through its Rules (similar to Arbitration Rules of the International Islamic Centre for Reconciliation and Arbitration that provides a unique global platform for settling the dispute in compliance of Sharia Provisions) which aims in its entirety at conducting the Arbitration cases flexibly and professionally, and granting the parties an adequate time and opportunities to submit their arguments and pleadings.
Here erupts a major discourse and confusion between the parties to the dispute, as well as sometimes that confusion affects some lawyers and arbitrators in the matter of confusion between the legal deadlines determined by jus cogens in the law applicable to the Arbitration cases, and between the deadlines agreed upon by the parties or determined by the reputed Arbitral Tribunal or provided for by the Institutional Arbitration Rules and Regulations. Further, IICRA has recently received requests submitted by some Claimants and competent Arbitral Tribunals that consider it to suspend their work and extend their arbitration assignments or the tasks of expertise due to the spread of the “Coronavirus” and the stringent precautionary measures issued by government agencies in order to stop the spread of that pandemic, such as banning meetings, workshops, and training .. etc. Here, the case manager (Arbitral Tribunal Secretary) must take into account each request separately according to the stage of the Arbitration case, where IICRA’s decision varies between acceptance in Arbitration cases that require more Arbitration sessions or transition of work and experience, and rejection request in the event that IICRA is satisfied with a request made only for the purpose of procrastination since the Reputed Tribunal has already closed the door for pleading in the Arbitration case and the case reserved for the issuance of the Final Award.
However, the question does still remains the same as to what is the legal effect of Coronavirus on the Arbitration Cases if it is confirmed that the necessity of procedures to be suspended and the Arbitration period to be extended? In order to answer this question, first, we must agree that this global pandemic affects the contractual obligations, the influence of force majeure that is defined as everything that happens in terms of jurisdiction, destiny, or any other cause that is not the result of error or negligence on the part of the contracting parties, and from this definition, is we monitor three conditions for the implementation of force majeure situation namely:
First: This global pandemic can never be expected at all by the parties of the contractual relationship, the basis of the Arbitration Case.
Second: The impossibility of pushing this global pandemic and avoiding its consequences, whereas, the governmental stringent measures imposed on to cope with the outbreak of the pandemic prevents the arbitrator or expert from carrying out his duties, and this condition is the implementation of the rule that says: “No assignment obligation.”
Third: That this pandemic is external that has nothing to do with any party to the dispute in its occurrence, this is taken for granted and even unimaginable in such cases of global pandemics declared by the World Health Organization (WHO). And by collectively fulfilling these conditions, we are assured that the spread of the “Coronavirus”, which is a global pandemic and one of the forms of force majeure on contractual obligations and procedural deadlines that leads to stopping or prolonging the legally prescribed date for taking any action such as stopping the calculation of the projected period for hearing the case by a statute of limitations or stopping the period legally prescribed for filing an appeal with the judgment to be challenged. This position is evident in the judicial principles that affirm that only force majeure affects legal deadlines, and that force majeure will not waive the agreed Arbitration Clause, but rather all it entails is to stop the validity of the deadline for submitting the dispute to Arbitration. If it has a specific date, and the date for the appeal shall cease to exist if a force majeure is achieved in between. If the force majeure affects the implementation of procedural legal deadlines, it rather has the same effect on regulatory actions that derive their strength from less severe sources of legislation.
Now, we can assert that the effects of “Coronavirus” have emerged at an accelerating pace in all sectors of the economy, finance, and business locally, regionally, and globally. Indeed, these effects shall extend to all contractual obligations, which in turn inevitably result in similar substantive, quantitative judicial and Arbitration cases and claims that were left behind by the global financial crisis in 2008, and even more severe than these, regardless of the extent to which each of these contractual relationships has been affected, directly or indirectly, by this global pandemic. Now, it’s up to the discretion of the Judicial and Arbitral Tribunals case by case.
In conclusion, it becomes clear to everyone that the negative effects of the pandemic are significant and worsening. However, there are some positive effects of the pandemic that must be exploited at the present time, such as promoting adherence to the teachings of the Islamic religion, which urges personal hygiene and avoids dangers … etc. In the field of Arbitration, we believe that this very global pandemic has created a favorable opportunity to take serious steps towards creating the activation electronic arbitration which prevents the Parties and Arbitral Tribunal from traveling, disruption and conducting a meeting and public gathering which are the same precautions that governments have currently issued in order to combat the outbreak of the Corona Virus, in addition to reducing Arbitration expenses. Further, International Islamic Centre for Reconciliation and Arbitration (IICRA) has launched the electronic services, on top of which is settling the disputes through institutional Reconciliation and Arbitration in a way that doesn’t contradict the provisions of Islamic Shari’ah through its official website www.iicra.com