SAUDI ARABIA Law and Practice Contributed by: Zeyad Khoshaim, Abdullah Alajlan and Kamil Mehiz, Khoshaim & Associates
3.3 National Courts’ Approach In Saudi Arabia, national courts generally do not have the authority to decide on the applicable law in an arbitration agreement as this is left to the par - ties. According to the law and practice, parties to an arbitration agreement typically have the autonomy to determine the applicable law themselves. This choice is usually specified within the arbitration agreement itself or agreed upon during the arbitration proceed - ings. The role of the national courts is primarily to support arbitration proceedings, enforce arbitration agreements, and assist in the recognition and enforce - ment of arbitral awards, rather than deciding on the substantive law applicable to the dispute. In Saudi Arabia, national courts generally support the enforcement of arbitration agreements. They honour the parties’ choice to use arbitration instead of litiga - tion for resolving disputes. When a dispute is covered by a valid arbitration clause, courts usually enforce the agreement by directing the parties to arbitration. In fact, Article 11 of the Arbitration Law specifies that courts cannot hear a dispute subject to an arbitration clause if the respondent raises a non-jurisdictional defence based on the arbitration clause before pre - senting any other claims or defences. Furthermore, Saudi courts adhere to the principle of competence-competence, which means they recog - nise arbitrators’ authority to determine their own juris - diction. Courts usually intervene minimally in arbitra - tion proceedings, focusing on upholding the parties’ agreement and ensuring compliance with the Saudi Arbitration Law. They also support arbitration when necessary, such as by, for instance, issuing interim orders in support of arbitration (see Article 22 of the Saudi Arbitration Law). However, courts may refuse to enforce arbitration agreements or awards if they conflict with public pol - icy or involve issues considered non-arbitrable under Saudi law. 3.4 Validity Article 21 of the Saudi Arbitration Law embraces the global principle of separability, which treats the arbi - tration agreement as distinct from the main contract. This principle ensures that the arbitration clause is
autonomous and independent from the main contract, thereby protecting it from challenges directed at the main contract itself.
4. The Arbitral Tribunal 4.1 Limits on Selection
In Saudi Arabia, parties have complete autonomy in selecting arbitrators, subject to specific conditions outlined in Article 14 of the Saudi Arbitration Law. In short, the chosen arbitrator: • must have full legal capacity; • demonstrate good conduct, and have a reputable standing; and • hold at least a university degree in Shari’ah or law. However, if the arbitral tribunal consists of more than one arbitrator, this educational requirement applies only to the chairperson of the tribunal. 4.2 Default Procedures Under Article 15 of the Saudi Arbitration Law, if the parties cannot agree on the selection of arbitrators, a default procedure is applied. For a tribunal with one arbitrator, the competent court (refer to 1.4 National Courts ) appoints the arbitrator within 30 days of receiving a request from one of the parties. In a tribunal with three arbitrators, each party selects one arbitrator, and these two then appoint the chair - person (or president). If a party fails to appoint their arbitrator within 15 days or if the two appointed arbi - trators cannot agree on the chairperson within 15 days, the competent court will appoint the chairper - son within 15 days upon receiving a petition from a party requesting to expedite the arbitration. This pro - cedure also applies to tribunals with more than three arbitrators. Additionally, if the parties fail to agree on appointment procedures or if procedural failures occur, the compe - tent court will intervene to take necessary measures unless the arbitration agreement specifies alternative methods.
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