Feasibility Study of Autonomous Arbitration with Reference to the Concept of Arbitrator in Fiqh

Abstract

Autonomous arbitration, aimed at the definitive resolution of disputes, shifts the regulation of arbitration from the parties' agreement to factors aligned with their needs and preferences, ensuring the independence of arbitration. This article, with the presupposition of an autonomous nature, employs a descriptive-analytical method to examine the position of autonomy in Fiqh. Arbitration is a form of dispute resolution typically established through the parties’ mutual agreement to designate a third party for conflict resolution. Arbitration is considered a type of adjudication with a judicial foundation. In adjudication by mutual agreement, disputes are resolved based on judicial regulations, whereas arbitration resolves disputes on a contractual basis. Recognizing this fundamental difference implies accepting the expansion of the arbitration concept, without limiting it to the regulations of adjudication by mutual agreement. The parties may resolve disputes under the rules of arbitration or choose their desired regulations. Consequently, autonomous arbitration cannot be structured and analyzed strictly based on the jurisprudential principles of adjudication by mutual agreement, and there is no jurisprudential prohibition against accepting autonomous arbitration.