While justice in the modern state is characterized as public justice exercised by the state through its specialized judicial bodies, various considerations have dictated that state courts should not remain the sole monopolizers of dispute resolution among individuals in society. Instead, they are joined, at least within the scope of certain disputes, by arbitration justice, which is considered a legally organized form of private justice recognized in all legal systems worldwide, regardless of their different origins.

It is well-known that arbitration justice—as a method for resolving disputes among individuals in society—is based on two fundamental pillars: first, the will of the parties (party autonomy), and second, the legislator's approval and regulation of this will (state regulation).

The state permits arbitration to spare individuals from resorting to the judiciary, which saves them time, effort, and expenses. Therefore, we find that the legislator grants the parties the right to choose the arbitrators or to establish the rules by which they are chosen. It also gives them the right to select the form and type of procedures the arbitrator must follow, whether institutional or ad hoc, the applicable law for both procedure (Lex Arbitri) and substance (Substantive Law), the language(s) for the arbitration proceedings, the seat of arbitration, and other matters.

Given the importance of arbitration and its role in resolving disputes, all national and international legislations have recognized the authority of the arbitral tribunal to decide disputes by issuing final, binding decisions for the parties, which acquire the force of a final judgment (res judicata) and are enforceable through the judicial system of the state where enforcement is sought, provided that these awards are issued in the manner prescribed by law.

However, while the state's legislator recognizes the principle of party autonomy in the establishment and organization of arbitration, it has not overlooked the fact that achieving justice in society is one of the state's most important functions. Consequently, any state, when permitting arbitration, does not relinquish this function, which is a key manifestation of its sovereignty. Instead, it licenses its use by individuals trusted by the disputing parties—the arbitrators. The reasons for this licensing lie in the advantages that arbitration justice offers as a parallel judiciary to the state judiciary, both for the state itself and for the parties.

Regarding the advantages for the parties, they vary from one arbitration agreement to another but generally include the desire to obtain a ruling that resolves the dispute more quickly, effectively, at a lower cost, and with less animosity. It also allows parties to choose their judges—their arbitrators—from those with expertise and specialization in the relevant dispute, and to maintain confidentiality. Furthermore, the importance of arbitration increases in disputes with a foreign element, as it spares parties from resorting to a national judiciary that is foreign to one, if not both, of them. Thus, in the context of international commercial relations, arbitration is considered a neutral judiciary in every sense of the word, achieving what is known as procedural neutrality, which cannot be provided by a national judiciary closely tied to its state in terms of sovereignty and law.

As for the state's interest in permitting arbitration, it generally lies in the desire to alleviate the heavy burden on its courts due to the accumulation and diversity of cases. This encourages the national legislator to support arbitration to enable the national judiciary to perform its role in other, more sensitive disputes that are not subject to arbitration agreements or are non-arbitrable, such as criminal cases. It also addresses the inability of the national judiciary to resolve cases promptly and the state's desire to improve its image among foreign contractors, especially investors, who may not feel secure in their investments if the host state does not provide procedural guarantees to protect them.

Perhaps the state's authorization of arbitration and the provision of a legal framework that respects the will of the parties is one of the most important of these guarantees. This applies to disputes arising between investors and other contractors, between them and the state, or between them and state-affiliated entities. Additionally, arbitration has now become an industry or an investment that generates significant income for the host country. Therefore, it is in the state's interest to have a legal system that is friendly and supportive of arbitration to attract parties to choose it as a seat of arbitration. This is clearly observed in the court rulings of many countries, which justify their flexible and pro-arbitration stance by the need to maintain the country's status as an arbitration hub.

Nevertheless, the modern state has not stopped at merely acknowledging the parties' will to resort to arbitration. In return for relinquishing its absolute monopoly on the judicial function and licensing its use by ordinary individuals, it has been keen to ensure the fundamental guarantees (Due Process) provided by the state judiciary are also achieved through arbitration. This is done by subjecting arbitrators' awards to the supervision of state courts, to prevent arbitration from deviating from its function of delivering justice, and so that the state is not considered negligent in its judicial function before its people and the world. This is due to arbitration's enjoyment of several guarantees and advantages, such as the impartiality of arbitrators, the finality of their awards, and the enforceability of these awards at both national and international levels. Other factors include flexibility, confidentiality, speed, and effectiveness, in addition to party autonomy, which is one of the most prominent drivers for choosing arbitration, as it gives parties broad authority to design the form and procedures of the arbitral process according to the type and nature of the dispute.

For this reason, some rightly describe the relationship between state courts and arbitration as that of someone who reluctantly delegates part of their authority, saying: 'However, the state feels a responsibility towards arbitration similar, in our view, to that of one who has delegated part of his authority but fears the consequences. Therefore, the state is keen to subject arbitration to the supervision and oversight of its judiciary, to bolster the litigants' confidence in arbitration, and thus support its effectiveness.' Consequently, the most prominent function of any arbitration law, whether domestic or international, is to regulate the relationship between the state's ordinary judiciary and arbitration.

We initially affirm that the law's role in organizing the relationship between the state judiciary and arbitration is not limited to this aspect of oversight alone. Arbitration is no longer just an exceptional way to resolve disputes, viewed by the state with suspicion or as a rival to its judiciary. It has become a primary, parallel, and auxiliary judicial system. It is almost the primary judiciary for international commercial disputes and in some areas of domestic disputes, such as those related to construction contracts. Recently, arbitration has even expanded to become one of the most important means of resolving administrative disputes, which were previously the exclusive domain of state courts.

Therefore, the relationship between state courts and arbitration should not be based on the idea of the former's guardianship over the latter, but on their common ultimate goal of achieving justice between the parties. This must be done while emphasizing that the goal of the parties in choosing arbitration is to seek justice on principles that may differ from the traditional concept of justice in courts. When parties choose arbitration, they accept in advance a special kind of justice, whose features are defined by the characteristics of arbitration, knowing that it differs from the justice of the state's ordinary courts. Consequently, the relationship between state courts and arbitration should not be a cause for complicating cases instead of resolving them, as this contradicts the primary purpose of arbitration's existence.

ISBN: 9789923153390
Weight: 1.500 kg
Size: 17×24 cm
Paper: White
Pages: 656
Year of Publication: 2026
Binding: Hardcover