Do The IBA Rules on the Taking of Evidence in International Arbitration Conflict with Islamic Sharia?
Under at least the Hanbali school of Islamic jurisprudence, which is the official fiqh recognized by Saudi Arabia, Article 4(2) of the IBA Rules of Evidence in International Arbitration plainly conflicts with Islamic Sharia as understood by Hanbali jurisprudence. This article reads:
“Article 4 Witnesses of Fact
2. Any person may present evidence as a witness, including a Party or a Party’s officer, employee or other representative.”
The problem with respect to this article is that classic Hanbali jurisprudence does not allow self-interested testimony, since employee witness testimony is (quite reasonably, one may add) considered to be untrustworthy.
As summarized by the legal scholar Frank E. Vogel in Islamic Law and Legal Systems: Studies of Saudi Arabia, “[a] witness must not have any bias from relationship to the parties or interest in the suit.”
As indicated in Al-Mughni, one of the most widely known Hanbali textbooks explaining Sharia law, in volume 12, “[t]he testimony of a witness is unacceptable if he gains a benefit from it for himself or keeps away a harm from himself.” Al-Mughni also makes it very clear that the testimony of a worker is impermissible: “Al-Qadi [a pioneer of the Hanbali school of Sharia law] said that the testimony of a worker for his employer is unacceptable, and said that this is what Ahmad ‘Ibn Hanbal’ indicated.”
The same rule with respect to witness testimony in Sharia law is explained in Al-Bahuti’s Sharh Muntaha al-Iradat. Al-Bahuti indicates that there are seven basic preventive rules concerning witness testimony. It is indicated that “[t]he second preventive [rule] is that the witness obtains a benefit for himself by his testimony.” In explaining this rule, Al-Bahuti moreover specifically cites the example of an employee working for someone else as being impermissible: “[t]hus the testimony of a worker for his employer is unacceptable.” The third preventive rule, as explained by Al-Bahuti, again concerns self-interested witness testimony, but is merely the negative form of the same principle against self-interested witnesses. This rule, as indicated in Al-Bahuti’s textbook, is that “[t]he third preventive [rule] is that the witness avoids harm to himself by providing testimony.”
In his book, Sharh Montah Al Eradat by Shaikh Mansour Al Bahotti Al Hanbali, the chapter “testimonial objections” also indicates that employee witness testimony should not be allowed:
“The (second) reason preventing the court to accept the employee’s testimony is that if the testimony of the witness (employee) will lead to self-benefit or the testimony made by the (employee) to the benefit of his (employer) such as if a person is disputed in a garment of which he agreed with a tailor to sew or dye for him the (garment) or make it short, in such a case the testimony of the (worker) in favor of the (employer) will not be accepted for the presence of suspicion.”
In his book Al Rawdh Al Morie in Explanation of Sharh Zad Al Mostankie book, in the chapter Testimonial Preventions & Number of Witnesses” Shaikh Mansour Al Bahouti Al Hanbali also plainly states:
“The testimony of the person dragging a benefit to himself will not be accepted.”
It is also mentioned in the Book “Al kafi in the Fiqh of Al Imam Al Mobajal Ahmed Ibn Hanbal” by Shaikh Abdullah Ibn Qodama Al Magdisi, chapter “witnesses”, that the testimony of the worker for the benefit of his employer is not accepted.
In short, there can be no doubt that employee witness testimony should not be allowed under Hanbali fiqh, and the IBA Rules on the Taking of Evidence in International Arbitration are in direct conflict with this principle of Islamic jurisprudence.
Why Does This Matter?
First of all, this matters, since the IBA Rules on the Taking of Evidence are designed to be capable of being used globally, and this shows that the drafters may not have had enough input by scholars of Islamic jurisprudence.
More specifically, however, it poses serious problems with respect to the enforceability of arbitration awards in Saudi Arabia, or in other jurisdictions relying on Hanbali fiqh, when the IBA Rules are followed. The new (2012) Saudi Arabia law of arbitration states, for instance, quite specifically that rules of procedure must not conflict with Islamic Sharia in Article 25:
“1- The parties of the arbitration may agree on the actions adopted by the arbitral tribunal, including their right to subject these actions to the valid rules in any organization, or authority, or arbitration center in the Kingdom or abroad, provided they do not violate the provisions of the Islamic Sharia.”
Since allowing employee witness testimony violates Hanbali fiqh, an arbitral tribunal that slavishly follows the rules could end up with a worthless decision that is unenforceable when countries such as Saudi Arabia are the seat of arbitration or the place of enforcement. The award that is rendered could also be overturned, resulting in an enormous waste of time and money to the Parties involved in the dispute.
The solution to this problem is simple. Just as riba (interest) should not be awarded in certain jurisdictions, employee witness testimony should not be relied upon by Arbitral Tribunals where the seat or place of enforcement is Saudi Arabia.
As international arbitration becomes more truly universal, and less common-law and civil-law based, it would also be useful for the next iteration of the IBA Rules to take into consideration Islamic jurisprudence.