Court-connected arbitration as a mechanism fot dispute resolution in Islamic law

The human being is a social creature, and conflicts of interest among individuals are a natural component of social life. It is therefore crucial that disputes arising from such conflicts be resolved without fraying social bonds, so as to foster the development of personal and commercial relations. In this respect, alternative dispute resolution (ADR) mechanisms that aim to preserve, repair, and strengthen the parties' relationships tend to yield more favorable outcomes. Within Islamic law, alternatives to stata adjudication have been both systematically theorized and widely employed in practice around this idea. A review of the primary sources of Islamic law shows that the theoretical and practical foundations of ADR turn around the institution of arbitration. This study examines the nature of Islamic arbitration, its procedural framework, and its contemporary applications. Data drawn from classical fiqh works are classified according to the classification of modern law. The arbitration mechanism analyzed herein is grounded in the provisions of the Mecelle-i Ahkâm-ı Adliyye (Ottoman Code of Civil Law) and the Usûl-i Muhâkeme-i Hukukiyye Kanûn-i Muvakkati (Ottoman Code of Civil Procedure), both prepared in accordance with Hanafi fiqh. In this framework, an arbitral award does not constitute a res judicata; it is transformed into an an enforceable judgment only after the competent court issues an enforcement order. An arbitral awrd not submitted to the competent court is deemed to have the character of a settlement agreement. This approach corresponds, in the terminology of positive law, to an out-of-court settlement. A similar arrangement is found in the UK Arbitration Act 1996, under which religious norms may be chosen as the substantive law of the arbitration; in the system, arbitral awards are not directly enforceable, but become subject to compulsory enforcement only upon approval by the competent court. Against this regulatory backdrop, Islamic arbitration–long in operation–has faced numerous campaigns; nevertheless, the practice has endured to the present day.