This is a good time to consider the rule of law in an Islamic context. Last weekend, the Government of Qatar under the patronage of the Ruler of Qatar, Sheikh Hamad bin Khalifa Al Thani, sponsored and organised the Qatar Law Forum, a ground-breaking gathering of leading lawyers, bankers and other distinguished figures from around the world, to discuss the rule of law and the challenge of globalisation, and many other related topics.
And June 4, the Societies of Inner and Middle Temple begin a series of public discussions in the Temple Church on the subject of Islam in English Law.
The Qatar Law Forum, which I was privileged to attend, was an extraordinary experience. Its specific purpose was to introduce the Court and the Regulatory Tribunal of the Qatar Financial Centre (QFC) which have been grafted on to the legal system of Qatar by a law enacted in February 2009. Because the national law, like most states in the Gulf, is derived from Shariah and from civil law systems, from France via Egypt, while the QFC Court and Tribunal will apply what are essentially common law rules to the disputes that come before them. The process of harmonising the two systems will require deep judicial insight and much political and commercial will. How long the process will take will depend on the same factors. But, given the current relative strength of Qatar's financial situation and the quality of the new bodies, headed respectively by Lord Woolf of Barnes, former Lord Chief Justice of England and Wales, as President of the QFC Civil and Commercial Court, and Sir William Blair, now Justice Blair of the High Court, it may not be as long drawn out as legal developments sometimes are. Ultimately, it will be governed by the pace of commercial and financial developments in the Gulf. Whilst this has slowed during the current worldwide financial crisis, it has not been halted, and one can be sure that, once the downturn has ended, the recovery will be impressive and swift.
The underlying objective of the Government of Qatar no doubt is to establish an international financial centre coupled with a regulatory system of high repute; and rightly it sees that this will only be obtained if its activities are supervised and controlled by a tribunal and courts operating to the highest standards of justice, worldwide. This means, above all, that they shall be independent of the financial centre itself and their procedures shall be transparent and efficient in all respects.
A model for this ambition exists in Dubai, where the Dubai International Financial Centre (DIFC) was established by Federal (national) and State (the emirate's) legislation in 2004. Regulation is the function of the Dubai Financial Services Authority (DFSA), and the Judicial Authority encompasses both the DIFC Courts and the DIFC/LCIA (London Court of International Arbitration) Centre, which opened in February 2008. I have had the honour and good fortune to be the first Chief Justice of the DIFC Courts and I therefore can appreciate the scale of the task on which the QFC Court and Tribunal have now embarked, and the invaluable benefit which is obtained from the support of the national government and the local courts. The DIFC Courts have received this support from Dubai Ruler His Highness Sheikh Mohammed bin Rashid Al Maktoum, who is also Vice-President and Prime Minister of the UAE, and the Government of Dubai and from the officers and judges of the Dubai Courts. Lord Woolf, Sir William Blair are fortunate that they enjoy the same advantages in Qatar.
The process of applying common law rules in commercial and financial cases, particularly where international parties are concerned, alongside Shariah and civil law based systems is challenging, but if the results are successful this will make a significant contribution to the jurisprudence of all three systems of law. There are clear, even fundamental differences between the civil law and the common law, and between them and rules derived from Shariah principles. But this does not make them mutually exclusive, even within the same national system, and it is likely that in civil and commercial cases it will emerge that they have the same objective, that is to say, to secure a fair, just and efficient resolution of the parties' dispute. It can also be recognised that other out-of-court procedures, including negotiation, mediation and arbitration, may in some cases be more appropriate than litigation in the public eye. And when court proceedings do take place, it is important to distinguish between substantive rules, which govern the eventual outcome of the case and the different procedures by which this destination is reached. It is here, in my view, that the greatest differences lie. What is encouraging is that these procedures can most easily be adapted, modified and developed by the courts themselves.
By a process which will be gradual, but which need not be slow, I believe that the common law courts both in Qatar and Dubai will merge into the legal scenery of the Gulf, as the regional economy grows and the financial centres flourish in both countries.
- Sir Anthony Evans is the Chief Justice of DIFC Courts