التحكيم الإلكتروني وتطبيقاته في التشريع الأردني والإماراتي
This Study addresses the Electronic arbitration and its applications according to the Jordanian Arbitration Law 2018 as amended and the new UAE Arbitration Law 2018. The Study aims to identify the Electronic arbitration system by demonstrating its general legal framework, the agreement thereon, the...
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| Summary: | This Study addresses the Electronic arbitration and its applications according to the Jordanian Arbitration Law 2018 as amended and the new UAE Arbitration Law 2018. The Study aims to identify the Electronic arbitration system by demonstrating its general legal framework, the agreement thereon, the proceeding thereof, and how the arbitral award is rendered, summoned and enforced. To achieve the goals of the Study, the Researcher adopted different academic approaches – analytical, descriptive, comparative, inductive and historical approaches that complement each other. The problem of the Study is that the Electronic arbitration system raises several questions that mainly arise from the fact that arbitration legislations require the use of hard documents and personal appearance of both parties to the dispute. The question posed in this context is to which extent the Electronic arbitration made by the new means of communication and electronic technologies is valid in terms of the conventional arbitration rules, whether or not such legislation, as they stood, embrace such Electronic arbitration system? or do they need to be developed and customized to fit the electronic nature? The other problem of the Study relates to the fact that several international agreements, mainly New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards for 1958, sets a written arbitration agreement duly signed by the parties and an arbitral award written and signed by the arbitral tribunal and containing the place of its issuance as conditions precedent to enforcement of the arbitral award. The problem of the Study also concerns the extent of applicability of these conditions to the Electronic arbitral awards, rendered in the virtual world, not to mention the doctrinal controversy in opinions about several matters relating to the Electronic arbitration, and the absence of any agreement on one specific trend, which required the Researcher to make deeper study and research to reach better results. The study concluded that the Jordanian and UAE legislations were keen to keep pace with the development of the use of modern electronic means of communication and that they are very limited to electronic arbitration. The basic rule of the Electronic Arbitration Agreement was the law of the Sultan of the Will. The Jordanian and Emirati legislation also recognized the writing and electronic signature and set them conditions and controls that must be met and made legally considered in the expression of management and producing the legal effect in electronic arbitration. They also gave the parties to free choice of procedural and substantive rules applicable to the proceedings and subject matter of the electronic arbitration proceeding. The study also reached a set of recommendations, the most important of which is to invite Jordanian and Emirati legislators and those concerned in arbitration affairs in Jordan and the UAE on the need to provide success factors that ensure the absorption of the electronic arbitration system, which is to adopt development plans to develop the system of electronic arbitration procedures, and attract and qualify the human cadres necessary to activate it. The legislative reforms necessary for the development of electronic arbitration, simplify its procedures, and activate the role of arbitration centers in both countries, and activate partnerships to resort to electronic arbitration. And call on Jordanian and Emirati lawmakers to provide the necessary legal and technical guarantees for the provisions of electronic arbitration and to protect its outputs, both from the legal point of view required by national and international legislations on arbitration affairs, or from the technical point of view, which is required by the specific legislations to approve electronic documents and protect them from manipulation or distortion. We recommend that Jordanian and Emirati lawmakers adopt the approach adopted by the World Intellectual Property Organization's Electronic Arbitration Institution, which complies with the terms of enforcement of the arbitration award in the 1958 New York Convention, by printing the electronic judgment and signing it by hand by the Electronic Arbitration Commission. |
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