Arbitration and Its Essentials in Islamic Law: An Appraisal By Muhammad Shettima* and Ibrahim Mamman*

Transcription

1 1 ABSTRACT Arbitration and Its Essentials in Islamic Law: An Appraisal By Muhammad Shettima* and Ibrahim Mamman* The purpose of this paper is to appraise the essential elements in the Islamic conception of arbitration in Islamic law and distinguish it from other alternative dispute resolution mechanisms. Arbitration is appointing an individual who is not otherwise a judge to arbitrate between private individuals. Such appointment can be made by a judge or the disputants themselves. Appointing parties must consent however. Several legal authorities and practice of the Prophet's companions have confirmed its validity. Arbitration helps end disputes amicably without creating rancour or hatred. An arbiter must possess all legal requirements that are necessary from a judge. Majority of jurists are of the view that scope of arbitration includes all pecuniary claims. It is necessary that witnesses be aware of existence of arbitration. It is also desirable for the arbiter to record his arbitration. Parties can appeal the arbiter's verdict to a judge if they are not satisfied. Anything that may justify review of a judge's decision also justifies review of arbiter's verdict. Valid decision of an arbiter that has conformed to the provisions of the Sharĩ'ah is binding upon all its parties. Arbitration ends when the matter has been decided, or its stipulated time has elapsed or the arbiter has lost this legal capacity. 1. Introduction: Disputants in certain circumstances may choose not to seek a Court's redress for their complaints rather they will agree to appoint an arbiter of their choice to resolve their disputes. For this reason, arbitration is seen as one of the avenues of ending disputes in Sharĩ'ah as practiced by the Prophet's Companions. Most works that have treated tahkĩm in English language are shallow and tend to confuse it with ṣulh; hence this work attempts to contribute to the field by clearly defining what arbitration is and its legal basis in Islam and other conditions of its validity. The word tahkĩm means to put judgement into the hands of another. In other words, it is the delegating of a person who is not otherwise an adjudicator to adjudicate on a specific matter. It is defined as "authorisation by litigant of a person to adjudicate between them. 1 * Lecturer, Department of Sharia and Civil Law, Mohammed Goni College of Legal and Islamic Studies Maiduguri, baakaka1980@gmail.com; Mobile phone: ** Lecturer, Department of Sharia and Civil Law, Mohammed Goni College of Legal and Islamic Studies Maiduguri, ibrahimray2002@yahoo.co.uk mobile Al-Haṣkafĩ, Muhammad bin Ali bin Muhammad Alã'uddĩn, Al-Durar al-mukhtãr Sharh Tanwĩr al- Abṣãr, vol. 5, (Al-Bãbĩ al-halabĩ n.d.), p. 428; Ibn Nujaim, Zainuddĩn, Al-Bahr Al-Rã iq Sharhu Kanz al-daqã iq, vol. 7, (Cairo, Al-Taba a Al-Ilmiyyah n.d.), p. 24

2 2 The major difference between Adjudication (Qaḍã) and Arbitration (Tahkĩm) is that while in Arbitration consent of both parties is a requirement but there is no such condition in Adjudication. A judge (Qãḍĩ) has authority over all the persons brought before him; but an arbiter will only adjudicate between two consenting persons who explicitly accepted his ruling. 2 Another dispute resolution mechanism that is often confused with arbitration (taḥkĩm) is reconciliation (ṣulḥ). The term ṣulḥ (reconciliation) is the opposite of nizã' (dispute). 3 Hanafis have defined it as a form of contract in which parties agree to end dispute after its occurrence with consent. 4 Malikis have also added that it can be used to resolve a dispute after its occurrence. According to Ibn Arafah 5, it is giving up of a right or claim with consideration to end dispute or avoid its occurrence. 6 This means, a reconciliation can be done by the parties themselves and they can give up part of their claims while taḥkĩm can be done when the arbiter is either appointed by a judge or the disputing parties and it does not require the parties to give up part of their claims. Taḥkĩm is similar to judgement while ṣulḥ is a form of a contract of exchange ('aqd al-mu'ãwaḍah). 2. Legal Basis of Tahkĩm: There are legal authorities supporting arbitration in the Qur'an, Hadith as well as Ijmã (Consensus of Jurists). In the Qur'an, Allah Ta'ãlã says: )و إ ن خ ف ت م ش ق اق ب ي ن ه م ا ف اب ع ث وا ح ك ما م ن أ ه ل ه و ح ك ما م نن أ ه ل ه نا إ ن ر ي رن ا إ ح ن حا ر و ف ن ي ب ي ن ه م نا إ ين ي نان ع ل يما خ ب ييا ( سورة النساء: 35. "If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation" Qur'an 4:35. According to Imam Qurtubi, 7 this verse is the legal authority for Arbitration. 8 Although the verse was revealed on arbitration between spouses it's legality in marital dispute indicates that it is also lawful on other rights and claims 9 2 Al-Mausũ'ah al-fiqhiyyah, vol. 10, p Al-Haṣkafĩ, (n 1), vol. 5, p. 428; Ibn Nujaim, ibid, p Majallat al-ahkãm al-adliyyah, Article Muhammad bin Arafah al-warghami was the Imam of Tunis, its scholar, preacher and mufti. He was made its preacher in the year 772H and a mufti in the year 773H. He was among the notable Maliki jurists. His works include, Al-Mabsũṭ in seven volumes, al-hudũd on fiqh definitions. (See: Al-Dĩbãj al-mudahhab, p. 337; Nail al-ibtihãj, p. 274; Al-Zarkali, al-a'lãm, vol. 7, p. 272). 6 Al-Hattãb, Muhammad bin Muhammad bin Abdurrahman, Mawãhib Al-Jalĩl Sharhu Mukhtasar Al- Khalĩl vol. 5, (Maktabat Al-Najãh: n.d.), p. 79; Al-Kharshĩ, Muhammad bin Abdullah, Sharh Mukhtaṣar Al-Khalĩl, vol. 6, (Al-Matba'ah Al-Sharafiyyah: n.d.), p. 2; Al-Tasũlĩ Abu Al-Haan Ali bin Abdussalam, Al-Bahjah fĩ Sharh Al-Tuhfah alã Al-Urjũzah, vol. 1, (Dãr Al-Kutub Al-Ilmiyyah: 1418H/1998), p He is Muhammad bin Ahmad bin Abi Fakar bin Farh, from Cordova, Andalus. He was among greatest exegisists (mufassir). He was known for being pious and ascetic. He traveled to the east and settled in Minyat Ibn Khaṣĩb, northern Asyut in Egypt whence he died. His works include, al-jãmi' li Ahkãm al-qur'an, a great work of tafsir, al-tadhkirah bi Umũr al-ãkhirah and Al-Asnã fĩ Sharh al- Asmã' al-husnã. (See: Ibn Farhũn, Burhanuddĩn Ibrahim bin Ali Al-Madanĩ Al-Mãlikĩ, Al-Dĩbãj Al- Mudhahhab fĩ Ma'rifati A'yãn 'Ulamã' Al-Madhhab, (Beirut, Dãr Al-Kutub Al-Ilmiyya n.d.), p. 317; Al-Zarkalĩ, Khairuddĩn bin Mahmũd Al-Dimashqĩ, Al-A'lãm, vol. 6, (Dãr al-ilm li al-malãyĩn 1980), p. 218). 8 Al-Qurṭubĩ, Abu Abdullah Muhammad bin Ahmad bin Abi Bakr bin Farah Al-Anṣãrĩ Al-Khazrajĩ Shamsuddĩn, Al-Jãmi' li Ahkãm Al-Qur'ãn, vol. 5, (Dãr Al-Kutub Al-Masriyyah: 1384H/1964), p. 179

3 3 Another verse confirming the legality of arbitration is the Saying of Allah: )ف إ ن ج اء وك ف اح ك م ب ي ن ه م أ و أ ع ي ض ع ن ه م ( المائ ة 42. "If they do come to thee, either judge between them, or decline to interfere." Qur'an 5:42 It means, if the Jews come to you seeking that you arbitrate between them over their disputes, you can rule between them. The verse has also given the Prophet the option to either accept to arbitrate between them or to turn away from them. This is in reality the essence of arbitration. 10 A judge appointed with a power (wilãyah) to rule among people has no such option but with legally recognised excuses such as if any of the parties involved are related to him or he has an interest in the case. 11 Likewise, the Saying of Allah Ta'ãlã: )و م ن ق ت ل ه م ن ك م م ت ع م ا ف ج ز اء م ث ل م ا ق ت ل م ن النيع م ر ح ك م ب ه ذ و ا ع ل م ن ك م ه را ب ال غ ال ك ع ب ة ( المائدة: 95. "If any of you doth so intentionally, the compensation is an offering, brought to the Ka'ba, of a domestic animal equivalent to the one he killed, as adjudged by two just men among you" Qur'an 5:95. This verse is one of the most obvious indicators of arbitration in Islam. This is why Sayyiduna Ali, 12 may Allah be pleased with him, justified his position of accepting to appoint two arbiters among the Muslims to adjudge between him and Sayyiduna Mu'ãwiyah 13 over their dispute when he was opposed by the Khawãrij Al-Zaila'ĩ, Fakhruddĩn Uthman bin Ali, Tabyĩn Al-Haqã'iq sharh Kanz Al-Daqã'iq, vol. 4, (Bũlãq 1313H), p. 193; Al-Kãsãnĩ, Abubakar bin Mas ũd bin Ahmad, Badã'i al-ṣanã'i fĩ Tartĩb al-sharã'i', vol. 7, (Al-Matbũ ãt Al-'Ilmiyyah 1327H). p Ibn Al-Arabĩ, Ahkãm al-qur'an, vol. 2, (Isã al-halabĩ n.d.), p In Article 1808, the Majallat al-ahkãm al-adliyyah which is based on Hanafi jurisprudence has provided that: "The person in whose favor judgment is given must not be an ascendant or descendant or the wife of the judge, nor his partner, nor a private employee in respect to the property which is the subject matter of the judgment, nor a person who lives at the expense of the judge. Consequently, the judge may not hear a case relating to one of such persons, nor give judgment in his favor." 12 He is Ali bin Abi Talib the Prophet s uncle from Bani Hãshim of Quraish, the fourth of the Caliphs and one of the ten companions whom paradise have been promised to. He married the Prophet s daughter Fatima. He was appointed as the Khalifa after the assassination of Uthman bin Affan and thus was not able to rule in peace until he was killed in Kufa in year 40H. The Khawãrij declared him non- Muslim and some Shi ites have raised him above the three caliphs and some even raised him to divinity. The Shi ites attribute the book Nahjul Balãgha to him but there is no reliable evidence on that. (See: Al-Zarkali, Al-A lãm, ibid, vol. 5, p. 108, Manãhij al-sunnah, vol. 3, p. 2, Al-Mausũ atul Fiqhiyyah, vol. 1, p Mu ãwiya bin Abi Sufyan Sakhr bin Harb Al-Qurashi. He founded the Umayyad dynasty in Sham that ruled the Islamic State after the end of the reign of rightly guided caliphs. A cunning Arab leader known for his patience, grace and eloquence, he was born in Makka around 5 before hijra, and accepted Islam in the year of Conquest of Makkah. He was appointed by Abubakar and Umar and latter Uthman to rule over Sham (Syria). Hasan bin Aliy resigned the post of Caliph in his favour. He waged wars against Mediterranean Islands and Constantine as well as many other territories. He demanded allegiance in favour of his son before his death. He died at the 60 th year of Hijri (Al-Isãba fí Tamyĩzis Sahãbah, vol. 3 p. 433, Minhãjus Sunnah, vol. 2, p , Al-Mausũ atul Fiqhiyya, vol. 2, p. 422). 14 Al-Usbuhĩ, Malik bin Anas, Al-Mudawwanah Al-Kubrã, vol. 3, (Beirut, Dãr Al-Kutub Al-Ilmiyyah n.d.), p. 49.

4 4 In the traditions of the Prophet, peace and blessing of Allah be upon him, the Prophet's acceptance of the arbitration of Sa'ad bin Mu'ãdh 15 on the Jews of Banũ Quraiẓah when they consented on his arbitration. 16 The messenger of Allah had also accepted the arbitration A'war bin Bashãmah 17 over clan of Anbar's looting of zakat money. 18 It has also been narrated that the Prophet has told Abu Shuraih 19 whose nickname was Abu al-hakam, Allah is the al-hakam, why are you nicknamed Abu al-hakam? Abu Shuraih responded, whenever my people dispute over a matter, they come to me so I will rule between them and both parties does agree with my ruling. The Messenger of Allah, peace and blessing of Allah be upon him then said, what a good (practice) this is! Who is your eldest son? He said: Shuraih. The Prophet said: then you are Abu Shuraih. 20 In the above narration, the Prophet, peace and blessing of Allah be upon him, has commended Abu Shuraih's practice of arbitrating between his people. If it were not lawful and permissible, he would not have commended its practice. 21 There is also the consensus of the ṣahãbah (Prophet's companion) over permissibility of arbitration and its legality. Many of them have been involved within it, and none among them has ever denied its legality. 22 For instance, it has been narrated that when Umar bin al-khaṭṭãb 23 and Ubayy bin Ka'ab 24 disputed over a date palm, they 15 Sa'ad bin Mu'ãdh bin al-nu'mãn bin Imri' al-qais, Abu Umar of the Medinan Aus tribe among the Ansar. The brave companion of the Prophet, may Allah be pleased with him. One of the leading figures of Medina who raised their flag on the day of Badr had also witnessed the battle of Uhud. He was hit with a spear on the day of Khandaq where he died. The Prophet was immensely saddened by his death and said: "the Throne of the Merciful Lord was shaken for the death of Sa'ad bin Mu'ãdh." (See: Al- Iṣãbah, vol. 2, p. 38; Usud al-ghãbah, vol. 2, p. 221; Tahdhĩb al-tahdhĩb, vol. 3, p. 481; Al-Zarkali, Al- A lãm, ibid, vol. 3, p. 39). 16 Al-Asqalãnĩ, Ahmad bin Ali bin Hijr, Fath al-bãrĩ Sharh Sahĩh al-bukhãrĩ, vol. 6, (Al-Salafiyyah, n.d.), p The researcher cannot find his biography. 18 The Hadith is narrated by Ibn Shahĩn, but there is an ambiguous narrator in its chain of narrators. See Al-Iṣãbah by Ibn Hajar, (Al-Risãlah), vol. 1, p Abu Shuraih al-khuzã'i al-adawĩ al-ka'bĩ was among the companions of the Prophet. Some narrations state that his name was Khuwailid bin Amru and others said that it was Amru bin Khuwailid. He became a Muslim before the conquest of Mecca and died in Medina in the year 68H. (Al-Mazzĩ, Jamãluddĩn Yusuf, Tahdhĩb al-kamãl, vol. 33, (Mu'assasat al-risãlah n.d.), p. 400; Tabaqãt Ibn Sa'ad, vol. 4, p. 295). 20 Al-Nasã'ĩ, Ahmad bin Shu'aib Abu Abdurrahman, Al-Sunan Al-Kubrã, vol. 8, (Beirut, Dãr Al- Maktabah Al-Tijãriyyah n.d.) p. 226; Abu Dãwud, Sulaiman bin Al-Ash'ath Al-Sijistãnĩ, Sunan Abĩ Dãwũd, vol. 5, (Dãr Al-Fikr n.d.), p. 240; Al-Baihaqĩ, Ahmad bin Husain bin Ali bin Musa, Sunan Al- Baihaqĩ Al-Kubrã, vol. 10 (Mecca, Dãr Al-Bãz, 1414H/1994), p Ibn Hamãm, Kamãl al-hanafĩ, Sharh Fath Al-Qadĩr alã al-hidãyah, vol. 6, (Mustafa al-bãbĩ 1389), p. 406; Al-Qarãfĩ, Shihãbuddĩn Ahmad bin Idrĩs, Al-Dhakhĩrah, vol. 10, (Beirut, Dãr Al-Gharb 1994), p Al-Mãwardĩ, Abũ Al-Hasan Ali bin Muhammad bin Habĩb, Al-Hãwĩ Al-Kabĩr, vol. 16 (Beirut, Dãr Al-Fikr n.d.), p. 325; Al-Shirbĩni, Muhammad Al-Khatĩb, Mughnĩ al-muhtãj ilã Ma rifat Ma ãnĩ al- Fãẓ al-minhãj, vol. 4, (Dãr Al-Fikr n.d.), p. 378; Ibn Hamam, Sharh Fath, ibid, vol. 6, p Umar bin al-khattãb bin Nufail bin Abdiluzzã al-adawi al-qurashĩ, dubbed Al-Farũq (i.e. the Distinguisher, for distinguishing between truth and falsehood), the Prophet's companion, leader of the faithfuls as well as second of the four rightly guided Caliphs. He was born 40 years before hijra. The Prophet, peace and blessing of Allah be upon him used to pray that Allah strengthen Islam with one of two Umars, he accepted Islam as a result. He became Muslim five years before hijra when he caused Muslim to show their religion publicly. He has always adhered to the Prophet as one of his lieutenants. He attended several battles of the Prophet. He was chosen as a Caliph after Abubakar. It was during his time that Islam spread where it was narrated that over 12,000 platforms for sermons were built. He found the Hijra date, provided state records, etc. He was killed by Abu Lu'lu'ata Al-Majũsĩ while

5 5 delegated Zaid bin Thãbit 25 to serve as an arbiter between them. 26 Umar has also disagreed with a man over a horse he purchased subject to bargain (similar to the English phrase subject to contract) and they took the matter to Shuraih. 27 Sayyiduna Uthman bin Affan 28 and Talhah 29 too have taken their dispute to Jubair bin Mut'im, 30 may Allah be pleased with them; although none of Zaid, Shuraih or Jubair praying the Morning Prayer in the year 23 after hijra. (See: Al-Zarkalĩ's Al-A'lãm, ibid, vol. 5, p. 204; Al-Mausũ'a Al-Fiqhiyyah, vol. 1, p. 362). 24 Abu Al-Mundhir Ubai bin Ka'ab fin Qais of the Al-Najjãr clan from the tribe of Khazraj is a Medinan Ansari. He is famous for being scribe of the Inspiration (wahy). He attended Badr, Khandaq and all Prophet's battles. Sayyidina Uthman, may Allah be pleased with him commanded him to collect the Holy Qur'an in one form where he worked among other companions. He has narrated 164 ahãdĩth. The Prophet, peace and blessing of Allah be upon him is reported by Anas bin Malik to have said that the best reciter among my nation is Ubayy bin Ka'ab. He died in the year 21AH. (Al-Istĩ'ãb, vol. 1, p. 65; Al-Iṣãbah, vol. 1, p. 19; Usud Al-Ghãbah, vol. 1, p. 49; Ṭabaqãt Ibn Sa'ad, vol. 3, p. 498; Al- Zarkali, Al-A lãm, ibid, vol. 1, p. 78). 25 Zaid bin Thãbit bin Al-Ḍaḥḥãk of the Khazraj is among the Medinan ansar and was born 11 years before hijra. He is among the grand companions of the Prophet as well as a scribe of the inspiration (wahy). He was born in Medina and grew in Mecca and traveled with the Prophet while he was 11 years old. He became knowledgeable in matters of religion as well as an expert in adjudication, fatwa, recitation and inheritance. He was one of those who collected the Qur'an during the time of Prophet, peace and blessing of Allah be upon him and presented it to him while he was alive. He also wrote for Abubakar then to Uthman when copies of the Qur'an were written and sent to large cities. He died in the year 45 after hijra. (Tahdhĩb Al-Tahdhĩb, vol. 3, p. 389; Ghãyat Al-Nihãyah, vol. 1, p. 296). 26 Al-Sarkhasi, Abubakar, Muhammad bin Ahmad, Al-Mabsũt fil Fiqh al-hanafi, vol. 21, (Beirut, Dar al-ma rifa 1406H), p. 62; Ibn Hammãm, Kamãluddĩn Muhammad Muhammad bin AbdulWãhid Al- Sawãsĩ Al-Sakandarĩ, Fat h al-qadĩr, vol. 5 (Egypt, Mustafa Muhammad 1356H). p. 498; Ibn Qudãmah, Abdullah bin Ahmad al-maqdisĩ, Al-Mughni fĩ Fiqh Al-Imãm Ahmad bin Hanbal Al- Shaibãni ma'a al-sharh Al-Kabĩr, vol. 10, (Beirut, Dãr Al-Fikr 1405H). p. 190; Al-Buhũtiyy, Mansũr bin Yũnus bin Idrĩs, Kashshãful Qinã an Matn Al-Iqnã, vol. 6, (Riyadh, Maktabat Al-Nasr Al- Hadĩtha n.d.), p Ibn Qudãmah, ibid, vol. 10, p Uthmãn bin Affãn bin Abi al-'ãṣ of the Quraish tribe and Amawi clan and the third of the four rightly guided caliphs as well as one of the ten companions of the Prophet who received glad tidings to be admitted to the paradise. He was born around the year 47 before hijra and was among the earliest to accept Islam. He was among the wealthiest nobles of Quraish during Jahiliyyah period. He generously spend his wealth to promote Islam. The Prophet, peace and blessing of Allah be upon him gave him his daughter, Ruqaiyah in marriage. When she died, he gave him a second daughter Umm Kulthũm. He was nicknamed Dhu al-nurain (the bearer of two lights) as a result. He was recognized by the Muslim as the Caliph after the death of Sayyiduna Umar; and Islamic conquests reached its peak during his reign. He completed the collection of the Qur'an and burnt all copies but that which has been compiled. He was killed in the year 35H by rebellious group in his home on the day of the feast of sacrifice while reciting the Qur'an. 29 Talḥah bin Ubaidullah bin Uthman al-qurashĩ, may Allah be pleased with him is the brave companion of the Prophet, peace and blessing of Allah be upon him. Born 28 years before hijra, Talhah was one of the ten companions who received glad tidings of paradise admittance. He was also one of the six persons to form Electoral College selected by Sayyiduna Umar to choose a caliph among them.he was also the eight person to accept Islam. He was known for his enormous generosity. He witnessed the battle of Uhud with the Messenger of Allah, peace and blessing of Allah be upon him where he promised to die in protecting the Prophet. He was inflicted with 24 injuries during the battle and stood as armour to protect the Prophet with his own hand causing his fingers to paralise. He also witnessed the battle of Khandaq as well as many other battles. He has rewarding business dealing with Iraq. He has narrated from the Prophet, peace be upon him as well as Abubakar and Umar, may Allah be pleased with them; and his sons, Muhammad, Musa, Yahya, 'Amrãn, Aisha and Malik bin Aus bin al-hadathan and others have narrated from him. He died in the year 36H. (Al-Iṣãbah, vol. 2, p. 229; Al- Istĩ'ãb, vol. 2, p. 764; Tahdhĩb al-tahdhĩb, vol. 5, p. 20; Al-Zarkali, Al-A lãm, ibid, vol. 3, p. 331). 30 Jubair bin Mut'im bin Udai bin Naufal bin Abdu Munãf was also nicknamed Abu Muhammad or Abu Udai is a companion of the Prophet, peace be upon him. He was among the notable scholars of Quraish and their leaders. He knowledge especially on the science of lineage and use to said that he

6 6 is a judge. 31 Such practice has also been reported from grand companions and none has questioned it, which implies consensus over it. 32 Based on all the above, jurists have opined that arbitration is a permissible and authorised means of dispute resolution in Sharĩ'ah. 33 Despite this consensus, a minority of jurists have either declined to declare it permissible or expressed its dislike. 34 However, seeing all the above authorities demonstrates the strength of the position taken by those who have opined its legality. 3. Importance of Arbitration: Islam has given serious importance to justice and abidance by its provision in all affairs of the people. While formal judgement is one of such means, arbitration also plays a vital rule in establishing the law of Allah on His earth. Other importance of arbitration can be seen below: i. As arbitrators usually only focus on one specific case, it is easier for them to determine legal issues involved within a short period of time unlike formality and cumbersome delays that has become an entrenched nature of Court procedure. ii. Cost involved in arbitration is very meagre compared to that which is required in Court systems. Such as costs of filing suits, lawyers' payments, expenses required to bring in expert witnesses, etc. iii. Disputes in arbitration ends amicably without creating hatred and rancour especially between relatives and business partners as the disputants have consented to the arbiter's intervention before it even starts. iv. Less formality in arbitration means freedom to bring out all necessary information regarding each party's claim. This is not the case in formal judicial proceeding as parties are under strict situation and can only state that which they are required as permitted by the judge. 35 learnt it from Sayyiduna Abubakar, may pleased with him. He came to the Prophet to rescue Quraish captives of Badr. Mut'im was said to have a high status with the Prophet. He said, I heard the prophet reciting Surat al-tur on that day, and faith entered my heart. Jubair accepted Islam between the Hudaibiyyah treaty and conquest of Fath. He has narrated sixty (60) ahãdith from the Prophet. (Al- Iṣãbah, vol. 1, p. 225; Al-A'lãm, vol. 2, p. 103; Usud al-ghãbah, vol. 1, p. 271; Al-Istĩ'ãb, vol. 1, p. 232, Tahdhĩb al-tahdhĩb, vol. 2, p. 63.) 31 Kuwaiti Ministry of Endowments and Religious Affairs, Al-Mausũ ah Al-Fiqhiyyah, vol. 10, (Kuwait, Dhãt al-salãsil 1412H/1992), p Al-Sarkhasi, Al-Mabsũt, ibid, vol. 21, p. 62; Al-Shirbĩni, Muhammad Al-Khatĩb, Mughnĩ al-muhtãj ilã Ma rifat Ma ãnĩ al-fãẓ al-minhãj, vol. 4, (Dãr Al-Fikr n.d.), p. 378; Al- Al-Ramlĩ, Muhammad bin Ahmad bin Hamzah, Nihãyat al-muhtãj ilã Sharh al-muhtãj, vol. 8, (Mustafa Al-Halabi 1357H), p Al-Kãsãnĩ, Badã'i, ibid, vol. 7, p. 3; Al-Hattãb, Mawãhib, ibid, vol. 6, p. 112; Ibn Farḥũn, Ibrahim bin Ali bin Muhammad, Tabṣirat Al-Hukkãm fĩ Uṣũl al-aqḍiyah wa Manãhij al-ahkãm, vol. 1, (Al- Halabĩ n.d.), p. 43; Al-Dusũqĩ, Muhammad bin Ahmad bin Arafah, Al-Hãshiyah Alã Al-Sharh Al-Kabĩr, vol. 4, (Dãr Al-Fikr: n.d.), p. 135; Al-Ramlĩ, Nihãyat Al-Muhtãj, ibid, vol. 8, p. 230; Ibn Qudãmah, Al- Mughnĩ, ibid, p. 190; 34 Cf: Al-Mausũ'a Al-Fiqhiyyah, ibid, vol. 10, p Cf: Mahmũd, Qadrĩ Muhammad, Al-Taḥkĩm fĩ Ḍau' Ahkã al-sharĩ'ah al-islãmiyyah, (Dar al-ṣumai'ĩ 1430H/2009), p

7 7 4. Parties to Arbitration: Parties to arbitration are the litigants that agree to refer their dispute to an arbiter and each of them is referred to as al-muhakkim. They can be two persons and above. The main requirement in parties to arbitration is that both should possess legal capacity to perform An agent cannot be party of arbitration without his principal's consent; likewise a minor who is permitted to transact cannot be a party of arbitration without his guardian's consent. An entrepreneur in partnership of Muḍãrabah will also require the permission of the financier. Likewise, a guardian or deceased father's appointee and a person subject to interdiction (hajar) due to bankruptcy will not be party to arbitration if the result if the arbitration can be detrimental to minors and creditors The Arbiter (Al-Muhakkam): 1. The Arbiter must be determinant person who is known to both parties. Thus if disputants agree as an arbiter anyone who enters a mosque for instance, it is invalid due to jahãlah according to juristic consensus. But it will be valid if they consented to his arbitration after knowing him The Arbiter should possess legal capacity and qualities required of a judge. Jurists are generally in agreement that it is conditional for a judge to be Muslim, sane, adult and free. 40 In addition, the arbiter must have basic knowledge of the Islamic fiqh so as to be able to apply the law of Allah to the dispute. He should have the ability to reduce the principle of the Sharĩ'ah to determinate issues and individuals based on the predetermined conditions which our jurists have established The arbiter should not be related to one of the disputants. Such a relationship is the relationship that bars an individual from testifying in favour of another. Where a party of dispute appoints his co-disputant to serve as an arbiter, and the arbiter ruled in his favour, the arbitration is valid according to a reliable position in the Maliki School which is also in agreement with the Hanbali School. 42 The condition that an arbiter must not be related to disputants does not apply to matrimonial arbitration which Allah, the Most High has directed that the arbiters should be relatives of both the spouses. This is base on the saying of Allah, the Most High: 36 This is the capacity for legally valid conducts to emanate from an individual without requiring any one's ratification. It includes acts of worship such as prayers, fasting, pilgrimage, etc; as well as active and declarative tasarruf which include all sorts of contracts. In other words, such an individual qualifies to have valid transaction with others and his declarations are effective in creating obligations for and against himself. (Al-Zuhaili, Wahba, Al-Fiqh Al-Islãmiy wa Adillatuhu, vol. 4, (Damascus, Dar al-fikr 1428H/2007)p ; Al-Zuhaili, Muhammad Mustafa, Al-Nazariyyãt Al-Fiqhiyyah, (Dãr Al-Qalam 1414H/1993), p. 134). 37 Ibn Nujaim, Al-Bahar Al-Rã'iq, ibid, p Ibn Abidĩn, vol. 5, p. 430; Group of Indian Scholars in the 11 th Century Hijra, Al-Fatãwã Al- Hindiyyah, vol. 3, (Dãr Al-Ma rifah 1393H), p. 271; Al-Shirbĩnĩ, Mughnĩ Al-Muhtãj, ibid, vol. 4, p. 379; Al-Ramlĩ, Nihãyat Al-Muhtãj, ibid, vol. 8, p Ibn Nujaim, Al-Bahar Al-Rã'iq, ibid, p. 62; Al- Al-Fatãwã Al-Hindiyyah, ibid, vol. 3, p Ibn Farhũn, Burhanuddĩn Ibrahim bin Ali Al-Madanĩ Al-Mãlikĩ, Al-Dĩbãj Al-Mudhahhab fĩ Ma'rifati A'yãn 'Ulamã' Al-Madhhab, vol. 1, (Dãr Al-Kutub Al-Ilmiyya, Beirut: n.d.), p. 7; Ibn Ãbidĩn, Muhammad Amĩn, Hãshiyat Radd Al-Mukhtãr alã Al-Durr Al-Mukhtãr, vol. 5, (Bũlãq: n.d.) p. 354; Al-Shirbĩni, Mughnĩ al-muhtãj, ibid, vol. 4, p.3 75; Al-Buhũtiyy, Kashshãf Al-Qinã', ibid, vol. 6, p Cf Al-Shãṭibĩ, Ibrahim bin Musa bin Muhammad, Al-Muwãfaqãt fĩ Usũl Al-Sharĩ'a, vol. 2, (Dãr Ibn 'Affãn 1417H/1997), p Ibn Nujaim, Al-Bahar Al-Rã'iq, ibid, p. 28; Fath Al-Qadĩr, vol. 5, p. 502; Al-Fatãwã Al-Hindiyyah, ibid, vol. 4, p. 479; Al-Shirbĩnĩ, Mughnĩ Al-Muhtãj, ibid, p. 379; Al-Tãj wa Al-Iklĩl li Mukhtaṣar Al- Khalĩl bi Hãmish Mawãhib Al-Jalĩl, vol. 6, p. 116; Al-Dusũqĩ, Hãshiyat, ibid, vo. 4, p. 135.

8 8 If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers Qur an 4:35 6. Scope of Arbitration: In the Maliki School, subject matter of arbitration can be on anything other than thirteen matters: determination of age of reason (al-rushd) and its opposite, bequests (wasiyyah), endowments (al-habs or waqf), issues related to an absent or lost person (al-ghã'ib), lineage (nasab; i.e. establishing child's parentage), relationship between freed slave and his master (al-walã'), hadd (or prescribed) punishment, retribution (qiṣãṣ), properties of orphan, divorce, emancipation and li'ãn. This is because these are matters that under exclusive power of judge 43. The reason is that these matters are either pure rights of Allah as in hadd, retribution and divorce; or it involves right of a third party as in lineage (nasab) and li'ãn. Ibn Arafah has put forward a dictum on matters that can be subject of arbitration: "Evident narrations have implied that any right that a disputant can give up can be a subject of arbitration; but Al-Lakhmĩ 44 is of the opinion that it is only permissible in pecuniary matters and what has similar results. 45 This is also the opinion among the Shafi'is. 46 Hanafis and Shafi'is have also agreed that there cannot be arbitration over hudũd cases as they are pure rights of Allah; although Al-Sarkhasĩ 47 is of the opinion that defamation (qadhf) may be arbitrated. This opinion is however weak among the Hanafis. 48 On their part, Hanbalis have differed over the subject matter of arbitration. The evident statement of Imam Ahmad 49 is that there is no difference between subject matter of judgement and arbitration. Therefore, any matter that could be referred to a judge could also be referred to an arbiter. According to Abu Al-Khattãb, 50 arbitration 43 Al-Dusũqĩ, Hãshiyat, ibid, vol. 4, p. 136; Ibn Farḥũn, Tabṣirat, ibid, vol. 1, p Ṭulaib (whose name is also Abdullah, as he has two names) ibn Kãmil al-lakhmĩ, Abu Khalid was originally from Andalus. He lived in Alexandria, Egypt where he also died in the year 173H. He was one of the great compatriots of Malik. Ibn al-qãsim and Ibn Wahab have both narrated from him. In fact, Ibn al-qãsim learnt fiqh from him before he travelled to Malik. (Al-Dĩbãj, p. 130; Tartĩb al- Madãrik wa Taqrĩb al-masãlik, vol. 1, p. 314; Al-Lubãb, vol. 3, p. 68). 45 Ibn Farḥũn, Tabṣirat, ibid, vol. 1, p. 42; Al-Sharh Al-Kabĩr, vol. 4, p Rauḍat Al-Tãlibĩn, vol. 11, p. 121; Al-Ramlĩ, Nihãyat Al-Muhtãj, ibid, vol. 8, p. 230; Al-Shirbĩnĩ, Mughnĩ Al-Muhtãj, ibid, p Dubbed Shams al-a'immah (Sun of Imams), Muhammad bin Ahmad bin Abi Sahal al-sarkhasi from Sarkhas a town in Khurãsãn. He was a leading jurist in the Hanafi School, a well versed expert and a mujtahid. He studied under al-halwãnĩ and others. He was jailed because of he has admonished one of the Rulers. He dictated most of his books from his memory to his disciples while in prison. He died in the year 483H. His books include, al-mabṣũṭ in fiqh, al-uṣũl in jurisprudence, Sharh al-siyar al-kabĩr. (See: al-fawã'id al-bahiyyah, p. 158; al-jawãhir al-muḍiyyah, vol. 2, p. 28; Al-Zarkali, Al-Zarkali, Al- A lãm, ibid, vol. 6, p Ibn Nujaim, Al-Bahar Al-Rã'iq, ibid, p. 26; Badã'I' Al-Sanã'I', vol. 7, p. 3; Rauḍat Al-Talibĩn, vol. 11, p. 121; Al-Ramlĩ, Nihãyat Al-Muhtãj, ibid, vol. 8, p. 230; Al-Shirbĩnĩ, Mughnĩ Al-Muhtãj, ibid, p. 378, He is Abu Abdullah Ahmad bin Muhammad bin Hanbal As-Shaibanĩ, one of the founders of the four schools of thoughts. He was born in Baghdad where he grew and sought his knowledge of the law, hadith and other fields. He has travelled across many cities in the Muslim world where he met several scholars. He was beaten and tortured due to his position regarding Mu tazilites ideology regarding Creation of Qur an. Beside his vast knowledge, he was ascetic and pious. He died in the year 241H. His works include: Al-Musnad in Hadith, An-Nãsikh wal-mansũkh, Al-Jurhu wat-ta dĩl, etc. (For more on his bibliography see; Tabaqãtul Hanãbilah, vol. 1, p. 4, Shadharãtudh Dhahab, vol. 2, p. 96, Mu jamul Mu allifĩn, vol. 2, p. 96). 50 Mahfũẓ bin Ahmad al-kalwadhãnĩ, Abu al-khaṭṭãb is a leading Hanbali jurist of his time. He was born in Baghdad where he lived and died. His works include, Al-Tamhĩd in jurisprudence, Al-Intiṣãr fĩ al-masã'il al-kibãr and al-hidãyah in fiqh. (Tabaqãt al-hanãbilah, p. 409).

9 9 ca be done in pecuniary matters, retribution, hadd punishment, marriage, li'ãn, etc, whether there is a judge or not. But Qãḍĩ Abu Ya'lã 51 is of the opinion that tahkĩm is only allowed in pecuniary matters, but it is not allowed in marriage, qiṣãṣ and hadd as they are matters that are approached with extreme precaution, and thus they should only be confined to a judge's power Conditions for Validity of Arbitration: In Islamic Jurisprudence, sharṭ (condition) is defined as that which existence of a thing depends on though it is not part of the thing. 53 Or it is that whose absence negates a thing though its presence does not make the thing exist or not. 54 Example is the status of purity (ṭahãrah) in prayer: its absence invalidates prayer while its presence alone does not make a prayer exist. Also, the presence of witnesses in marriage validates the contract, but their presence alone does not form the contract of marriage. The following are the necessary conditions for the validity of arbitration: 1. Existence of dispute between parties over a right. 55 This is because only when there is dispute between the parties, one is claiming and the other is denying that the duty of arbiter is necessary. Likewise, jurists refer to the parties as disputants or litigants and one is not referred to as a disputant if there is no dispute between him and another Consent of parties to accept the arbitrator's decision. But there is no need for such consent where the arbiter is appointed by a judge. Hanafis are however of the opinion that it is not necessary for such acceptance to precede the arbitration, it can proceed the verdict. But Shafi'is are of the opinion that it is conditional for parties to accept the effect of an arbitration before the Arbiter begins listening to their arguments Agreement of the disputants and the arbiter over the arbitration. Such agreement can either be explicit or implied. The disputants can also stipulate certain conditions to the arbiter such as the arbiter must pass his verdict within a day or he should rule base on what a particular mufti has opined. Failure to meet such condition invalidates the arbitration. Where the disputants appoint two arbiters, the verdict of one does not bind them rather the two should agree between them Testifying Arbitration or Declaring Arbitration to Witnesses There is no requirement for parties to arbitration to declare the arbitration to witnesses. But it is desirable for the arbitration to be known to witnesses so that in case of any denial of either party, witnesses can testify over its existence. Testifying arbitration to witnesses does have practical importance nonetheless. Where disputants appoint an arbiter to adjudicate between them; but after a verdict is passed, 51 Muhammad bin al-husain bin Muhammad bin Khalaf bin Ahmad bin al-farã' is a leading Hanbali jurist of his time as well as the expert of his time in jurisprudence, particulars of fiqh and many other disciplines. He was a Baghdadi and was given the appointment of being a judge in Baghdad, Harim Harran and Halwan. His works include, Ahkãm al-qur'an, al-ahkãm al-sulṭãniyyah, al-mujarrad, al- Jãmi' al-saghĩr in fiqh, al-uddah and al-kifãyah in jurisprudence. (See: Ibn Abu Ya'lã, Tabaqãt al- Hanãbilah, vol. 2, p ; Al-Zarkalĩ, Al-A'lãm, vol. 6, p. 231; Shadharãt al-dhahab, vol. 3, p. 306). 52 Ibn Qudãma's Al-Kãfĩ, vol. 3, p. 436; Ibn Qudãmah, Al-Mughnĩ, ibid, p. 191; Maṭãlib Ulĩ Al-Nuhã, vol. 6, p Al-Zuhaili, Al-Fiqh Al-Islãmĩ wa Adillatuh, vol. 4, p Al-Mausũ'a, vol. 26, p. 5; Hãshiyat Al-Banãnĩ alã Jam' al-jawãmi', (Halab: date), vol. 2, p The Mejelle, Art. 1876; Hãshiyat Al-Durar, vol. 2, p Khalaf, AbdulBãsiṭ Muhammad, Wasã'il Inhã' al-munãza'ãt bain al-afrãd fĩ al-sharĩ'ah al- Islãmiyyah: Dirãsah fiqhiyyah muqãrinah, (Cairo, Dar al-muhaddithĩn 1429H=2008), p Ibn Nujaim, Al-Bahar Al-Rã'iq, ibid, p. 25; The Mejelle, Art Kuwaiti Ministry of Endowments and Religious Affairs, Al-Mausũ ah Al-Fiqhiyyah, vol. 10, (Kuwait, Dhãt al-salãsil 1412H/1992), p. 241.

10 10 the party against whom it is passed denied the arbitration, the arbiter's statement that the denier has consented to the arbitration will only be admitted with evidence. 59 The agreement or consent should continue or subsist up to the moment of issuing the verdict. Thus a disputant's withdrawal from the arbitration before the arbitrator's verdict, the arbitration becomes ineffective Testifying Arbiter's Verdict: This is not conditional for the validity of arbitration; but it is necessary in case one of the parties denied it. Therefore, witnesses should not be notified of the verdict at the session of Arbitration. 61 Likewise, it is recommended for the arbiter to write his judgement stating the facts in issue as well the legal authorities he relied upon in the ruling. This will reduce the likelihood of forgetfulness regarding the detail of the decision and the document will also be helpful if either of the parties decides to appeal the decision of the arbiter to a judge. Like testimony, writing is a means of securing rights in Islamic law and can be admitted in the Islamic Court as valid proof of existence of right Process of Arbitration: Procedure of arbitration is not different from the procedure to be followed by a judge in court. Therefore, the same means of proof used by judge such as testimony, admission and decline to swear an oath is also to be used in arbitration. Whenever an arbiter uses means that are in agreement with the stipulations of Shari'a, the verdict is valid, else, it will be considered as void decision. 63 Likewise, either parties to arbitration or their representatives should be present during determination of the rights in dispute Withdrawal from Arbitration The right to withdraw from an arbitration is part and parcel of arbitration which is reliant upon the disputants consent to be parties thereto. But such right is not absolute. 65 Thus, Hanafis along with Sahnũn 66 of the Maliki School are of the opinion that each party can withdraw from the arbitration before the arbiter reaches his verdict. Thus, if any of the disputants withdraws, it amounts to sacking or dismissal of the arbiter. If a judgement is already passed however, no party has the right to withdraw as it is a verdict that is in agreement with Sharĩ'ah approved authority or power (wilãyah). Just like a judge's dismissal from his post does not invalidate his 59 Al-mabsũṭ, vol. 21, p. Al-Dusũqĩ, Hãshiyat, ibid, vol. 3, p. 135; Maṭãlib Ulĩ Al-Nuhã, vol. 6, p. 472; Kashshãf Al-Qinã' vol. 6, p Fath Al-Qadĩr, vol. 501, 502; Al-Fatãwã Al-Hindiyyah, ibid, vol. 3, p. 269; Jãmi' Al-Rumũz, vol. 2, p. 232; Al-Mabsũt, vol. 21, p. 63; Al-Kifãyah, vol. 3, p Sharh Al-Inãyah, vol. 5, p Cf: Al-Humaiḍĩ, Abdurrahman Ibrahim AbdulAzĩz, Al-Qaḍã' wa Niẓãmuhu fĩ al-kitãb wa al-sunnah, (Mecca, Ummul Qurã University 1409H/1989), p See also: Ibn al-qayyim, Muhammad bin Abibakr Ayyũb Al-Zar'ĩ Al-Jauziyyah, Abu Abdullah Al-Turuq Al-Hukmiyyah fĩ Al-Siyãsah Al- Shar'iyyah, vol. 1, (Cairo, Matba'at Al-Madanĩ), p Ibn Nujaim, Al-Bahar Al-Rã'iq, ibid, p ; Al-Fatãwã Al-Hindiyyah, ibid, vol. 3, p. 270; Fath Al- Qadĩr, vol. 5, p. 502; Hãshiyat Ibn Abidĩn, vol. 5, p. 431; Ibn Qudãmah, Al-Mughnĩ, ibid, p Al-Hidãyah, vol. 7, p. 507; Ibn Nujaim, Al-Bahar Al-Rã'iq, ibid, p ; Al-Fatãwã Al- Hindiyyah, ibid, vol. 3, p Al-Mausũ'a Al-Fiqhiyyah, vol. 10, p Born in the year 202AH, Muhammad bin Abdussalam bin Sa'ĩd bin Habĩb, Abu Abdullahi Al- Tanũkhĩ known as Ibn Sahnũn is a Maliki jurists known for his debates. Known among Qairawãnĩs has gathered various disciplines as he did during his days. He was a generous noble man respected by Kings. He died in the year 256H in Al-Sãḥil and was taken to Qairawãn where he was buried. His works include Adãb Al-Mu'allimĩn, Ajwibat Muhammad bin Sahnũn, Al-Risãlah Al-Sahnũniyyah, Al- Jãmi'. (See: Riyãḍ Al-Nufũs, p. 504; Al-Zarkali, Al-A lãm, ibid, vol. 7, p. 76).

11 11 previous judgements, dismissal of an arbiter after issuing his verdict does not nullify the decision. 67 This is also the opinion in the Shafi'ĩ school. 68 On their part, majority of Malikis are of the opinion that it is not conditional for the disputant's consent to subsist up to the moment when the arbiter issues his verdict. Thus, if both parties have concluded their pleadings and just before the arbiter issues his verdict, one of them decides to withdraw, the withdrawal is ineffective and the arbiter can go ahead and issue his judgement. According to Asbagh 69, the disputant can withdraw from the arbitration before litigation starts, but if it is already started, it becomes mandatory upon them to continue with it. Ibn Mãjishũn 70 is even of the opinion that they have no right to withdraw even if the process of litigation did not start. 71 Among the Hanbalis, each disputant has the right to withdraw before the judgement (hukm) starts. But if the judgement has begun or just before a verdict is passed, two opinions have been narrated from the Hanbalis. The first one is that the right to withdraw remains before a verdict is passed. Thus, it is the same as if the pleading has not begun. The second opinion provides that if the arbitration has begun, neither party has the right to withdraw. According to this opinion, if this is allowed the party that sees itself on a loosing side will simply withdraw and this is contrary with the objective of arbitration; and therefore the verdict is valid Effect of Arbitration Effect of judgement refers to the end result of arbitration; that is its legal consequence. This is the executive and binding nature of arbiter's verdict as well as the probability of it being reviewed by a judge. i. The binding nature of arbitration and its execution: Whenever an arbiter issues his verdict, his judgement is binding upon the parties of the arbitration. Execution of the verdict does not require parties' consent. This is the consensus of all the jurists as it is similar to a judge's decision. However, the binding nature of arbitration is only applicable to its parties and thus it cannot transcend to a third party as neither the arbiter nor the parties have authority over a third party." Ibn Nujaim, Al-Bahar Al-Rã'iq, ibid, p. 26; Al-Fatãwã Al-Hindiyyah, ibid, vol. 3, p. 268; Ibn Farḥũn, Tabṣirat, ibid, vol. 1, p Al-Nawawĩ, Abu Zakariyyã Yahyã bin Sharaf, Rauḍat Al-Talibĩn wa 'Umdat Al-Muftĩn, vol. 11 (Al- Maktab Al-Islãmĩ: 1405H), p. 122; Al-Shirbĩnĩ, Mughnĩ Al-Muhtãj, ibid, p Originally from Fusṭãṭ, Aṣbagh bin al-faraj Sa'ad bin Nãfi' is a protege of AbdulAzĩz bin Marwãn and among great Maliki jurists in Egypt. He traveled to Medina to study from Malik; but arrived in Medina on a day in which Malik died. He accompanied Ibn Al-Qãsim and Ibn Wahab. Some have placed him above Ibn al-qãsim. He died in the year 225H. His works include, Al-Uṣũl, Tafsĩr Gharĩb al-muwatta' and Kitãb Ãdãb al-qaḍã'. (Al-Dĩbãj al-mudhahhab, p. 97; Al-Zarkalĩ, Al-A'lãm, vol. 1, p. 336; Wafayãt al-a'yãn, vol. 1, p. 79). 70 He is AbdulMalik bin AbdulAzĩz bin Abdullahi bin Abi Salamah Al-Mãjishũn. He was originally from Persia and Al-Majishũn is his Grandfather Abu Salamah's title. AbdulMalik was an eloquent Maliki jurists where Fatwas were always referred to him in Medina during his time. Ibn Habĩb has praised him considering him over most comrades of Imam Malik. He was visually impaired others believe that he lost his sight at the end of his life. He died in the year 212H. (Ibn Farhũn, Al-Dĩbãj Al- Mudhahhab, (Beirut, Dar al-kutub, n.d.), p. 153; Al-Zarkalĩ's Al-Zarkali, Al-A lãm, ibid, vol. 4, p. 305; Shajarat Al-Nũr, p. 56) 71 Ibn Farḥũn, Tabṣirat, ibid, vol. 1, p Al-Kãfĩ, vol. 3, p. 436; Ibn Qudãmah, Al-Mughnĩ, ibid, p. 190, 191; Maṭãlib Ulĩ Al-Nuhã, vol. 6, p. 472; Kashshãf Al-Qinã', vol. 6, p Cf Ibn Nujaim, Al-Bahar Al-Rã'iq, ibid, p. 26; Al-Minhãj, vol. 4, p. 397; Al-Sirãj al-wahhãj, p. 589; Al-Ramlĩ, Nihãyat Al-Muhtãj, ibid, vol. 8, p. 231; Ibn Qudãma's Al-Kãfĩ, vol. 3, p. 436; Kashshãf Al- Qinã', vol. 6, p. 303.

12 12 ii. Review of Arbitration: Parties of arbitration may consent to the arbiter's verdict and implement its effect. However, one of them may see that his interest is not adequately treated, may decide to appeal the decision to a judge. According to Shafi'is and Hanbalis, a judge can only review an arbiter's verdict in cases that justifies review of judge's decision.74 The main feature of a judgement that should is where it contradicts a provision of the Qur'an, the Hadith, the Ijmã or an evident qiyãs (al-qiyãs al-jalĩy). Shihãbuddĩn al- Qarãfĩ75 of Malikiyyah has also added that where a decision has contradicted an established principle or maxim of Islamic law, it shall be reviewed Termination of Arbitration: 1. Each party of arbitration has the right to dismiss the arbiter before the arbitration starts. They cannot however dismiss an arbiter appointed by a judge as he is serving as the judge's representative. 2. If a time-period has been stipulated for the subsistence of the arbitration, lapse of such time signifies the dismissal of the arbiter. 3. Where the arbiter looses his legal capacity. 4. After a final verdict has been issued. 14. Conclusion: This brief study on Arbitration (taḥkĩm) under Islamic Law is not exhaustive. It has however made attempted to bring into the limelight, the legal basis, scope of application of arbitration as well as legal issues required in parties to arbitration as well as the arbiter himself. Arbitration as a very important means of ending dispute in Islam can be resort to by Muslims especially in areas where there are no dedicated Islamic Courts to determine their cases. In fact, even if Islamic Courts exist, it can still function as a supplement of ending disputes in amicable manners especially between family relatives and business partners. Likewise, in a contemporary Nigeria, where enabling laws governing emerging legal issues like Islamic Banking and Takaful insurance are not adequately in existence; or where there are no experts in Islamic Law on these issues in our courts, tahkĩm can be an appropriate avenue to determine legal issues that may arise between parties thereto. 74 Rauḍat Al-Tãlibĩn, vol. 11, p. 123; Al-Shirbĩnĩ, Mughnĩ Al-Muhtãj, ibid, p. 397; Ibn Qudãmah, Al- Mughnĩ, ibid, p. 190; Maṭãlib Ulĩ Al-Nuhã, vol. 6, p. 471; Kashshãf Al-Qinã', vol. 6, p His name is Abu Al-Abbãs Ahmad bin Idris bin Abdurrahman Al-Sanhaji al-bahnasi al-maliki and popularly known as Al-Qarafi. He was born in Egypt in 626H where he lived all his life. He was considered an expert versed in Fiqh, Usũl, Tafsir and other fields of knowledge. He died in Cairo in the year 684H (Kashf al-zunũn, vol. 2, p. 1153, al-dĩbãj al-mudhahhab p. 62). 76 Cf: Al-Qarãfĩ, Shihãbuddĩn Ahmad bin Idrĩs, Anwãr Al-Burũq fĩ anwã al-furũq, vol. 4, (Isã Al- Halabĩ 1346H), p. 40.