March 29, 1996, Geneva, Switzerland
The Approach to Mediation in the Arab World
by Fathi Kemicha,
All the Arab countries, with the exception of Djibouti, Kuwait, Oman and Syria, are members of the World Intellectual Property Organization (WIPO).
On the other hand, only 11 of them (1) are members of the Paris Union for the Protection of Industrial Property and six (2) are members of the Berne Union for the Protection of Literary and Artistic Works.
Despite an apprehensive attraction to conventional law and the fact that certain have highlighted the claimed illegality of the very concept of intellectual property from the point of view of the Islamic Sharia, the legislative instrumentation of the Arab States in the field of intellectual property has grown over recent years.
For instance, initiatives have been taken to improve protection of intellectual property, particularly in the Arab Gulf countries, notably in response to pressure from the American administration that is concerned to protect its enterprises against the risk of counterfeits.
Thus, a country like the United Arab Emirates has incorporated in its legislative system, one after the other:
More recently, the Council of Ministers of Foreign Affairs of the Gulf Cooperation Council adopted at its 58th session on March 16 and 17, 1996, common patent regulations.
As for the settlement of disputes relating to intellectual property and involving Arab parties, one may well consider that almost all litigation, particularly with respect to trademark law, is settled by the national courts.
It should also be emphasized that if we put the question to the international arbitration institutions, the Arab countries, just as the other countries of the South indeed, would seem little inclined towards this type of litigation.
It would thus seem that "70 percent of intellectual property cases submitted to the International Chamber of Commerce involve parties from the developed countries." (5)
However, this is just a first assessment, of a general nature, which should not be taken to mean that few intellectual property disputes involve Arab parties nor, in any event, that the latter tend to turn to their national courts.
In the case of mediation, as an alternative means of settling disputes, it has to be distinguished from the related concepts and from other types of settlement. Mediation is held to differ clearly from arbitration by the fact that it is devoid of any jurisdictional nature--its "success is basically dependent on the good will of the parties." (6)
Although the concept of mediation differs from that of arbitration, its relationship with conciliation, on the other hand, is not altogether clear.
It is generally accepted that conciliation is: "a process by which a third party, the conciliator, makes recommendations to the parties in order to settle their difference; the mediator, for his part, will simply arrange for the parties to discuss together and will abstain from making them any recommendations." (7) (8)
Others hold, on the contrary, that mediation is simply a variant (9) of conciliation.
The two concepts may even merge into one--such is the case in the ICC Conciliation Rules where it is said that they "should permit any form of conciliation or mediation however they are understood." (10) (11)
The WIPO Mediation Rules may indeed just as well cover, it would seem to me, the conciliation procedure.
It is this second approach that I will adopt here for convenience.
As for the Arab approach to mediation, which I shall refer to as conciliation from time to time, it is generally admitted that this means of settling disputes forms part of Arab tradition.
For instance, certain tribes continue today in certain regions to settle themselves the differences that arise between their members by means of conciliation (12) and therefore refrain from submitting them to the courts of the State.
It may also be noted that in fields such as family law (particularly divorce), a prior conciliation procedure is compulsory in any event.
This concern for mediation or conciliation has its source and its bases in the Koran. The Ottoman Code, known as the Majalla, which was the first attempt at codifying the Sharia, which in turn had regulated conciliation contracts "Aqd Al Solh" (Articles 1530 to 1560 of the Majalla) and had proposed an original institution "Arbitration by Conciliation" (Article 1580 of the Majalla) with which I shall deal in the first part (I).
I shall then attempt in a second part of this report to describe present day practice of mediation in the Arab world before dealing with the prospects for its development (II).
I. MEDIATION/CONCILIATION IN THE ISLAMIC SHARIA
In Arabic legal terminology, the concepts of mediation and conciliation have differing names.
Mediation (Al Wasata) is characterized by the fact that one or more persons intervene in a dispute either of their own initiative or at the request of one of the parties (13).
The independent mediator must then seek to advance an amicable settlement by proposing solutions to the parties.
Obviously, however, mediation can only be successful if the parties accept the proposed solutions.
Conciliation (or Solh) is defined for its part as "a convention that terminates a dispute with the consent of the parties." It requires that each of the parties renounce some of its rights. It is therefore a compromise.
Beyond these slight differences, the two types of settlement are together distinguished from arbitration "Al Tahkim." (14)
I must first distinguish between the concepts of conciliation and of settlement (A) before describing "arbitration by conciliation" as defined by Article 1580 of the Ottoman Code (B).
A. Concepts of Conciliation and Settlement in Muslim Law
The terms "solh" which signifies conciliation or "Islah" which signifies reform or attonement, appear in seven verses of the Koran.
The virtues of conciliation are reiterated and the faithful invited to settle their disputes amicably.
All types of conflict are concerned: between a Muslim country and a friendly country, between the authorities and rebels, between an offender and his victim, between a creditor and a debitor, between spouses (15).
Verse 35 of Surah IV "Women" describes conciliation between spouses as follows. It is said:
"If you fear a breach between a man and his wife, appoint an arbiter from his people and another from hers. If they wish to be reconciled God will bring them together again. God is all-knowing and wise." (16)
The procedure described in this Verse sets up a tribunal of two arbitrators whose decision, however, is not compulsory since it must finally be accepted by the parties.
Since it has no jurisdictional force, this arbitration therefore more closely resembles conciliation (17).
The Ottoman Code, "Majalla" proposes under the term "solh" machinery for settling disputes defined in Article 1531 as follows:
"An act composed of an offer and of acceptance and which consists in terminating a dispute by common accord."
The French translation of the Majalla (18) uses the term "settlement" which strangely reflects that use in Article 2044 of the French Civil Code, under which:
"A settlement is a contract by which the parties terminate a dispute that has arisen or avoid a dispute that will arise."
Settlement and conciliation are related concepts: both concern the settlement of a dispute in an amicable manner and involve a contractual machinery (the conciliation protocol or the settlement agreement).
On the other hand, settlement differs from conciliation in the fact that it implies reciprocal concessions (19) and that it enjoys the authority of a final decision.
Article 1556 of the Majalla sets out in particular that:
"one of the parties alone cannot cancel the settlement once agreed ..."
The same Ottoman Code devotes a whole chapter to arbitration and devises in its Article 1850 what we could refer to as:
"Arbitration by conciliation."
B. Arbitration by Conciliation
The Muslim concept of arbitration (20) gives this means of settling disputes a physiognomy that resembles conciliation, on the one hand, and an amicable composition, on the other.
To illustrate the first of these two aspects, I may quote as an example Article 1847 of the Ottoman Code which authorizes each of the
"Parties to revoke the arbitrator as long as the award has not been given."
It would further seem that the arbitrators are most frequently invited to decide in equity, (21) unless the contrary wish is expressed by the parties.
The arbitrator, who is thus an amicable compounder, enjoys the powers of a moderator and therefore is alike to a conciliator.
As far as amicable composition is concerned, one author indeed stressed the fact that it "softened the outline of arbitration to bring it closer to conciliation." (22)
We are given an illustration in Article 1850 of the Majalla in the following terms:
"Legally appointed arbitrators may validly reconcile the parties if the latter have conferred on them that power. Therefore, if each of the parties has given powers to one of the arbitrators to reconcile them and the arbitrators terminate the case by a settlement in accordance with the provisions contained in the Book of Settlements, the parties may not reject the arrangement." (23)
The technique proposed by Article 1850 enables each party to appoint its "arbitrator." The two arbitrators thus appointed are in turn authorized to settle the dispute by means of conciliation "Solh."
The arbitrators mission in fact resembles a mandate to decide conferred upon them by the parties (24). The advantage of this technique is to simplify the procedure by avoiding application of the rules of proof imposed by the Sharia and even to avoid certain imperative provisions (25).
On the other hand, it creates a confusion between arbitration by amicable composition and conciliation (26).
It will be noted at this point that arbitration is quite frequently understood in the Arab and Muslim world a being a kind of conciliation.
This approach based on the settlement of disputes by means of conciliation is still popular today.
That is what I shall attempt to describe in the second part of this paper, but not without raising the question of the prospects for development, in the Arab world, of this alternative means of settling disputes.
II. MEDIATION PRACTICE AND ITS DEVELOPMENT PROSPECTS IN THE ARAB WORLD
A. The Attraction of Conciliation/Mediation
Fed on religious concepts that advocate social peace and harmony, the Arab world is naturally attracted to mediation as a means of settling disputes.
This attraction springs from the nostalgia felt for earlier times when the head of the clan, the elder of the family or even the Kadhi (judge) succeeded, through his authority and wisdom, in persuading the parties to make reciprocal concessions enabling an amicable settlement to be found to the dispute.
Quite naturally, therefore, the concept of conciliation and mediation prospered in Arab thinking and, somewhat more modestly, in practice.
We may take three examples:
1. The settlement of differences between States
It is not unusual, when a difference occurs between two Arab States, that the immediate reaction is to call on mediation by a third Arab State or by the Secretary General of the Arab League in those cases where the latter had not already opposed their good offices.
2. Introduction of conciliation as a means of settling commercial disputes
The Arab Chambers of Commerce regularly carry out a kind of mediation (related to amicable settlement) to resolve the differences that arise between their members or between their members and foreign partners.
It is also significant that the Euro-Arab Chambers of Commerce provide to economic operators in Europe and the Arab world the possibility of settling their differences not only by means of arbitration, but also by means of conciliation (27).
3. Arab practice in arbitration is dominated by the approach of an arbitration procedure without a compulsory finding
This approach, based on the idea, advocated by certain Arab economic operators, that renunciation of national courts cannot signify accepting a new allegiance to an arbitration board composed in the majority of foreigners.
Although certain Arab parties consent, although unwillingly, to insert an arbitration clause in contracts binding them to foreign parties, it is in the conviction that arbitration cannot be terminated by sentences in terms they would not accept.
When they discover that such is not the case, they are extremely disappointed.
One might think that this distrust of arbitration ought to have led on the part of the Arab parties to enthusiasm for mediation/conciliation in preference to other types of settlement.
In fact, that is not at all the case.
B. The Prospects for the Development of Mediation in the Arab World
It may appear a paradox that the reserves expressed in various quarters by Arab operators with regard to institutional arbitration do not favorize mediation/conciliation despite its attraction deriving from the earliest sources of the collective Arab heritage.
The reasons for that are:
1. The non-compulsory nature of decisions given in the framework of mediation reduces their credibility and effectiveness.
2. Recourse to arbitration has, paradoxically, become easier due to the co-existence of several factors.
(a) Modernization of the Arab laws on the model proposed by UNCITRAL and access to convention law, particularly the ratification of the New York Convention.
(b) More frequent participation in international arbitration in which the Arab parties are increasingly the initiating party.
(c) Confidence restored:
Success in arbitration proceedings although no-one can measure either their importance or their frequency.
Improvement in the knowledge of Arab lawyers
(d) Arbitration centers at national and regional levels offering conciliation and arbitration services, and
(e) A more active participation, although still modest, in the international arbitration institutions.
In the light of the facts mentioned above, it would seem that, contrary to the United States and, to a lesser degree, Europe, where alternative types of dispute settlement are becoming ever more attractive (even if the phenomenon would appear rather artificial to some (28)), the Arab States, at last reconciled to arbitration, would now tend to favor it for the settlement of international differences.