Recommendations for Judicial Reforms in Syria
While judicial reforms should cover the entire spectrum of the justice system in Syria, it would be more constructive to focus initially on contentious lawsuits in the civil court system as opposed to proceedings before the criminal courts. The objective of the recommendations is to expedite the court litigation process through a set of tested ideas including by adopting the doctrine of judicial precedent from the English common law tradition; opening up extensively to interim remedies; encouraging parties to settle their disputes through negotiation or mediation; mandating regulatory authorities to set up dispute resolution boards; advocating the concept of summary judgment; making more efficient use of court hearings; limiting appeals; limiting referrals; appreciating the rules of res judicata and collateral estoppel; introducing the principle of documentary disclosure; considering the recoverability of legal costs as a deterrent against frivolous claims; empowering litigants to represent themselves; automating and digitizing the trial process while relying on informatics; and raising awareness of arbitration and adjudication as alternative methods of dispute resolution.
Any reform process in this respect would entail enacting new legislative amendments. They would include modifications to the Civil Procedure Code provided for in Law 1/2016 to give formal effect to the recommendations. The Civil Procedure Code, which governs legal proceedings in the civil courts, was previously contained in Legislative Decree 84/1953 for more than six decades before it was modernized in 2016. Relevant provisions of the Evidence Law 359/1947, which are applicable during trial proceedings, would also have to be reconsidered. In addition, a review of the Judiciary Law 98/1961 may have to be contemplated. The Judiciary Law authorized the establishment of the Supreme Judicial Council, which is the main organ responsible for the organization of the judiciary and therefore the courts. The Constitution of 2012 mandates the Supreme Judicial Council with oversight over the judicial system. Its duties include appointing, dismissing, transferring and disciplining judges, and ensuring that the courts are operating properly.
The provisions of the Civil Procedure Code are also observed in the Administrative Court in the Council of State, which is responsible for resolving disputes involving governmental entities and the public sector. As such, reforms concerning the civil courts could similarly be embraced in the Council of State. Where there is not much divergence in the rules of procedure, the recommendations could be extended to litigation in the criminal courts by means of amendments to the Criminal Procedure Code provided for in Legislative Decree 112/1950.
Doctrine of Judicial Precedent
Formally adopting the doctrine of judicial precedent or ‘stare decisis’ as it was originally known in Latin from the English common law may prove to be the most progressive and transformative of all the recommendations. The Syrian legal system is a member of the family of civil law jurisdictions, which are inspired by the French and continental regimes. The system of judicial precedent, which is not prevalent in the civil legal tradition, essentially means that the lower courts are bound by the judgments of their superiors. Case law derived from court judgments is given serious consideration in common law jurisdictions as opposed to exclusive or significant reliance on codified legislation.
Presently in Syria, just as in other civil law jurisdictions, case law is persuasive and hardly legally binding except in one instance that will be discussed further. The lower courts may refer to the rulings of the higher courts for guidance but they are not obliged to apply them. Determining points in litigation according to precedent in Syria would mean that the Court of First Instance would be legally obliged to apply judgments of the Court of Appeal and the Court of Cassation, the country’s highest court, when they would be relevant to a particular lawsuit before them. Furthermore, the Court of Appeal would follow the rulings of the Court of Cassation in what can be described in both instances as a vertical application of the doctrine of judicial precedent. For illustrative purposes, if the Court of First Instance is hearing a case where the facts of the dispute are more or less identical to one already decided by the Court of Appeal or the Court of Cassation without any material distinction, the ruling of the latter would be observed accordingly. Furthermore, if there is no contradictory ruling from a higher court, courts could refer to their previous judgments or those of their fellow chambers where applicable, in what is usually dubbed a horizontal application of the doctrine.
The rulings of the General Assembly of the Court of Cassation are of a different nature in that it is the only judicial body that already has the power to legally bind the courts in Syria, whether the Court of Cassation, the Court of Appeal or the Court of First Instance, to its decisions. It does so by establishing legal precedents that are tantamount to declarations of the law and must be followed accordingly by the courts. Any failure by the courts to apply the decisions of the General Assembly gives rise to incorrect rulings that would most likely be overturned. In this respect, the General Assembly possesses two key functions, namely providing clarity with respect to judgments of the Court of Cassation that are inconsistent with the precedents the General Assembly has already set and eliminating discrepancies between the rulings of the various chambers of the Court of Cassation to avoid any ambiguity.
The Court of Cassation is not one individual entity with a set number of justices similar to supreme courts in common law jurisdictions. Rather, the Court of Cassation is comprised of several chambers made up of three-judge panels each. As a result, there is an increased likelihood that one chamber may issue a judgment that conflicts with another of its counterparts, which is never the case in a common law supreme court. As a result, the General Assembly steps in to prevent the various chambers from issuing inconsistent judgments with each other because that would create legal uncertainty.
The General Assembly derives its authority from the Judiciary Law. It is comprised of the judges of the Court of Cassation who act in an administrative capacity when overseeing the functioning of the Court of Cassation. The General Assembly is formally arranged into panels composed of seven senior judges each and which are specialized in civil, commercial, criminal and personal status matters. The President of the Court of Cassation chairs the General Assembly and in their absence, the Vice-President of the Court of Cassation or another senior judge presides over proceedings. Rulings of the General Assembly are decided by a vote of at least five judges on the relevant panel.
The jurisdiction of the General Assembly is triggered when a party appearing before a chamber of the Court of Cassation feels that the judges have misinterpreted and applied a legal precedent incorrectly. Consequently, they can appeal this point to the General Assembly. The General Assembly has a number of options it can exercise under such circumstances. It can overrule the judgment and remit the case back to the Court of Cassation for a further hearing, it can issue its own judgment without a referral to the Court of Cassation, or it can recognize a new precedent by setting aside the previous one based on the compelling arguments put forth by the respondent.
A chamber of the Court of Cassation is obliged to make a referral to the General Assembly if it is considering deviating from a legal precedent determined by previous judgments. Furthermore, if a chamber of the Court of Cassation is issuing a verdict in a lawsuit where relevant albeit contradictory legal principles have been pronounced in other cases, then it must refer the matter to the General Assembly to resolve the inconsistency and provide clarifications.
The goal of any reform program in this respect would be to adopt the principle that already applies to the General Assembly to the higher courts in general. If the doctrine of judicial precedent is applied in its entirety, it would logically follow that the rulings of the Court of Cassation are binding on the lower courts in general and the verdicts of the Court of Appeal are to be adhered to by the Court of First Instance. Where there are conflicting judgments issued by the chambers of the Court of First Instance and presuming the matter has not already been addressed by a higher court, they can be resolved by the Court of Appeal. Similarly, any inconsistencies in the Court of Appeal judgments can be ruled upon by the Court of Cassation, which is itself subject to the decisions of the General Assembly. Such measures would have the benefit of establishing legal certainty, which is a value in itself, throughout the entire judicial system and not necessarily only at the apex of the court structure.
The rationale for endorsing a binding structure of judicial precedent would be to make the Syrian legal system more certain in nature while developing an abundant collection of valuable jurisprudence that practitioners can rely upon in structuring their arguments and providing consultations. As a result, lawyers could then advise their clients on the likely outcomes of their cases and legal positions while avoiding unnecessary litigation where possible. While Syrian lawyers presently cite relevant judgments in their pleadings and implore judges to give them sufficient consideration, there is no guarantee that the latter will do so.
There are also indications that businesses prefer to incorporate their companies in common law jurisdictions because they regard the legal system as predictable and user-friendly. They take comfort in a rich supply of precedents that can be resorted to in the event disputes arise. Careful attention should be given to taking this leap and formally transplanting the common law doctrine of stare decisis into Syrian law, particularly in anticipation of reconstruction.
Despite the obvious advantages of a legal system that relies on precedents, it should still be noted that there is an apparent benefit to the persuasive nature of case law as opposed to treating it as binding. If a higher court makes a mistake by issuing an erroneous judgment that is not overturned, the doctrine of stare decisis would nonetheless make it binding on the lower courts and they would have to apply it accordingly. Unless the verdict is corrected in good time by the Court of Cassation for example, the precedent could have been followed in numerous lower court rulings. As a result, overturning that judgment would then have wide ramifications on other lawsuits where it was cited. The current practice in Syria where there is no system of judicial precedent except in the General Assembly of the Court of Cassation would mean that if one court made an unsound decision, another court could rectify it at the next opportunity. In spite of this one benefit, the convenience of binding precedents still outweighs the persuasive nature of case law.
Opening up extensively to interim remedies such as injunctions and orders for specific performance would be a welcome development for the courts, which only possess these tools in limited supply and form. They are equitable remedies derived from the English legal system. Injunctions instruct a party to refrain from a particular act while an order for specific performance obliges a party to undertake an act. Syrian and other civil law courts are more predisposed to making orders for monetary damages at the conclusion of a trial but there are instances where substantive interim relief before hearings commence would be considered more appropriate and useful to the circumstances at hand.
Interim remedies for claimants already exist under Syrian law, including a provisional order for the attachment of a defendant’s assets granted pursuant to an ex parte application. It must soon thereafter be followed by a formal lawsuit registered with the courts to initiate the underlying claim. It is a commonly applied measure where the movable or immovable properties of a defendant are frozen pending a resolution to the dispute. It is used in order to protect against any risk that a defendant may not settle their dues or may take action that could lead to the dissipation of their assets, thereby reducing the chances of recovery for the claimant.
It would nevertheless be advisable for the courts to be granted greater leeway in the types of interim remedies that they could utilize which go beyond provisional attachment orders. After all, such orders are only fruitful assuming the defendant owns enough assets to have an impact. Issuing an injunction or making an order for specific performance against a defendant may be more suitable at times. Doing so could create incentives for the parties to settle their differences in a speedy manner, which may relax existing burdens on the courts. Further opening up to such interim remedies and grasping them accordingly may be worthwhile for the judiciary.
Parties finding themselves in a contractual disagreement should be compelled to attempt to settle their dispute either through negotiation or mediation before resorting to litigation in the courts. Early dispositions of cases through such measures would go a long way in any judicial reform process. In such situations, recourse to a mediator with the requisite expertise can prove useful. Even if the mediation does not lead to a settlement, it may still facilitate a resolution of the dispute later on without a committal of significant resources by the parties. Since most cases are resolved outside of court proceedings, it would be advisable to pursue such an alternative course of action at least for exploratory purposes. Moreover, such exercises would encourage the parties to preserve their commercial relationship and avoid irreconcilable differences that they would likely encounter in a litigious setting. Furthermore, it is debatable whether contracting parties should be encouraged to include multi-tiered dispute resolution clauses in their agreements that make it a mandatory precondition to actively attempt an amicable settlement within a prescribed time period before filing a claim with the courts.
If the parties refrain from making any effort to resolve their discord, the courts should permit the lawsuit to proceed to trial. Notwithstanding, if it is found that the party in whose favor the judgment was rendered frustrated any attempts to settle the matter early on, the damages awarded to them should be reduced proportionately to account for such actions. If for any reason a solution is reached prior to litigation, a judge can formalize the settlement agreement by issuing a judgment affirming it. If a party refuses to honor it, such behavior would be tantamount to disobeying a court ruling and they would be held to be in contempt of court, which yields its own set of legal consequences.
Dispute Resolution by Regulators
As part of plans to lessen demands on the courts, regulatory bodies should be authorized to establish dispute resolution boards. Such bodies could absorb sector-specific disputes early on and attempt to resolve them before they reach the courts. For instance, the insurance regulator the Syrian Insurance Supervisory Commission or the capital markets regulator the Syrian Commission on Financial Markets and Securities could set up these boards to help disputants overcome their disagreements. They could revolve around a failure to pay out insurance proceeds or stock trading irregularities respectively. The unsuccessful party would then have the right to appeal the decision of the board to the Court of Appeal thereby freeing up the Court of First Instance to adjudicate on other types of lawsuits.
The courts should start implementing the concept of summary judgment to avoid unnecessary trials. A motion for summary judgment should be accepted in lawsuits where the facts are clear to the judge leaving little room for doubt in determining which party incurred liability and thus, all that is required is a decision on a question of law. The judge would also have to be satisfied that the case does not require a mandate for a court-appointed expert to assist in ascertaining the facts. Under such circumstances, it would be preferable to grant the judge the right to dispense with the dispute at a preliminary hearing either by dismissing it altogether or ruling in favor of a party. As such, there would be no need for the litigants to submit countless pleadings from one month to another as the trial drags on for a prolonged period of time. Even if a lawsuit may be decided by summary judgment, a full trial could still be held to assess monetary damages with testimony from a quantum expert and witnesses if need be provided there are other factors to take into consideration.
Efficiency in Court Hearings
During a trial, there should not be long adjournments between hearings, which presently may range from four to six weeks or even longer. The current practice whereby one party submits its pleadings in writing to the court and then the judge sets the next hearing in the following month or so to give the counterparty time to prepare their response has led to a backlog of cases on the court’s docket. Case management conferences before trials where the parties are given the opportunity to meet under the supervision of an officer of the court should be utilized constructively. The latter can encourage them to adequately identify the parameters of the disagreements between them early on and in an effective manner to potentially narrow down the range of disputes and expedite the litigation process. The conference can tap into the substance of the conflicting positions of the parties and clarify whether an expert with their niche skill set is necessary as their prompt appointment could prove fundamental to a case. Consequently, the triable causes of action should become clearer thereby allowing the parties to prepare their pleadings while anticipating their defenses productively in a time-saving manner. Applying such practices and policies across all the courts should aid in speeding up proceedings.
Judges should be emboldened to be more inquisitorial than they currently are by interacting further with lawyers advocating before them during trials in order to get closer to the facts of the case. Such a practice would be opposed to mainly receiving written submissions from lawyers on behalf of their clients for further examination while giving their counterparty the opportunity to respond similarly by written pleadings after one month or so. After a case management conference has been held, the parties, their lawyers and the judge, after being informed accordingly, would have a better understanding of the issues being contested. As such, the judge and the lawyers can engage in more dialogue during hearings without the need for recesses between exchanges. Unless it is deemed absolutely necessary to adjourn proceedings for further consideration, such a scenario would permit the parties to respond to each other’s positions immediately, though not in an adversarial manner. They would direct their statements to the judge. The court clerk for their part can record the oral submissions made by the parties in the case file. The goal in this instance would be to reduce the number of hearings necessary in order to save time for the courts and the parties involved. After all, the claimant and the defendant would be bearing their attorneys’ fees until the lawsuit is concluded so it would be more economic to speed up proceedings.
Opportunities to appeal a court judgment should be limited when the amount in dispute is not a significant sum. To this end, the Magistrate of the Peace or the Magistrates’ Court as it may be referred to, which already exists, would continue to hear such cases but its decisions should not be appealable to the Court of Appeal as is presently the legal position. The Magistrates’ Court absorbs small claims cases that would otherwise have been assigned to the Court of First Instance. In any case, a maximum monetary figure would be defined accordingly for disputes not exceeding it to be referred to the Magistrates’ Court and which can therefore not be appealed. The magistrate would have the authority to pass summary judgment if deemed appropriate provided there are no incontrovertible facts or otherwise, the case would proceed to a full trial in the Magistrates’ Court. In either scenario, the magistrate’s ruling would be accepted as final.
The appeals process should also involve more robust and uniform statutes of limitations. In order to ensure legal certainty for litigants, it is necessary to limit the time period between the issuance of a court judgment and its subsequent enforcement. In any case, it is highly advisable to implement a uniform 30-day appeals period for every court whether it be the Court of First Instance, the Court of Appeal or the Court of Cassation. In other words, the unsuccessful parties in these lawsuits would have a maximum period of 30 days in which they could appeal the judgments of the Court of First Instance or the Court of Appeal. If after the 30-day period, no appeal has been registered, the unsuccessful party would be deemed to have waived their right to challenge the ruling and the successful party can proceed to enforcing the court judgment.
Upon issuance of a court judgment, the party in whose favor it is rendered applies for its enforcement at the Execution Court, which is manned by the Execution Judge and serves as the executive arm of the courts. If required, the Execution Judge issues orders to attach any assets that the losing party, or judgment debtor, owns in order for the winning party, or judgment creditor, to collect its damages. The Execution Judge’s order should be final and not subject to further appeal as such practices delay justice to the successful party. Situations emerged during the war where by the time judgment creditors received their compensation, the local currency the Syrian Pound had depreciated considerably to the point that the monetary damages had lost most of their value.
The objective of limiting appeals at various stages of a court case whether at the Magistrate’s Court or the Execution Court, or even after a summary judgment has been issued, is to avoid delaying justice to successful litigants. Nevertheless, judges whose decisions are not subject to any further appeal should be mindful of the expectations and reliance placed on them to deliver rightful results. While their orders are final and binding, judicial accountability should not be discounted by judges under such circumstances. On the contrary, aggrieved parties on the receiving end of an unjust yet final ruling where the judge in question acted negligently or intentionally should retain the right to file a complaint against the latter with the Judicial Inspectorate as is already the norm.
The Judicial Inspectorate is the department responsible for investigating judges for suspected wrongdoings. After compiling its findings and presuming there is a case to answer, the Judicial Inspectorate would refer the matter to the Supreme Judicial Council to take disciplinary action against the judge in question if appropriate. The Supreme Judicial Council would then issue a binding decision that cannot be appealed or overruled whatsoever. If the claim is successful, the judge would then be held liable for their ruling by the Supreme Judicial Council as it sees fit without consideration to any immunity they may enjoy. While the Supreme Judicial Council’s ability to discipline a judge should act as a check on their performance, the latter’s judgment should not be overturned in spite of its imperfections in order to avoid setting a precedent for countless appeals and delays. The investigative process itself should merely serve to deter judges from inexcusable negligence or improper conduct unbecoming of the profession.
Unless procedures of this nature are considered, the status quo will persist whereby litigants will continue to manipulate the appeals process using guerilla tactics to delay the day of final judgment. They may file countless motions for appeals at different stages of the judicial process if they believe they will lose the case. They may attempt to find new techniques to do so even if the recommendations put forth are adopted. For these reasons, it would be wise to harness the potential of the Judicial Inspectorate and the Supreme Judicial Council in curbing such abuses of due process.
Measures should be put in place to ensure that a party is dissuaded from filing a claim against a judge in bad faith with the Judicial Inspectorate such as in the form of a baseless threat. In such circumstances, the Public Prosecutor would have the right to pursue criminal charges against the petitioner alleging ‘malicious prosecution’ so to speak presuming that such evidence of intent exists and that they failed in their bid against the judge with either the Judicial Inspectorate or the Supreme Judicial Council.
Once a claim has been tried in the Court of First Instance and an appeal has been registered with the Court of Appeal, the appellate judges should refrain from referring it back to the Court of First Instance for a retrial because there were irregularities in discovering the facts during the first trial. The same practice direction can be demanded of the supreme appellate court the Court of Cassation which also has the power to remit cases back to the Court of Appeal and the Court of First Instance. Such orders are common because while the Court of First Instance is concerned with questions of fact and law, the appellate courts are meant to review the judgments before them and focus on questions of law exclusively.
In the interests of hastening litigation proceedings, the Court of Appeal should examine the facts of the claim where in its opinion an error in judgment has been committed by the Court of First Instance based on the evidence available without sending the case back to the preceding court. The threshold for the Court of Appeal to decide for itself whether to examine the facts of the case should be the point where it may otherwise have considered a retrial more appropriate though not necessarily essential. In other words, as opposed to ordering the Court of First Instance to conduct a retrial, the Court of Appeal should be allowed to derogate from its obligation to solely focus on questions of law and rather assess the facts of the case itself. The same principle should also be applied to the Court of Cassation in its dealings with both the Court of Appeal and the Court of First Instance where challenges to due process arise.
Put simply, there should be limited or no referrals back to the lower courts by the higher courts. The appellate courts should make the decisions by themselves even if it means reexamining the merits of the case on questions of fact and law. Although this practice should be the default position, one should be cautious not to discount circumstances where retrials in the courts of original jurisdiction would be deemed absolutely necessary to safeguard against risks of gross miscarriages of justice.
Res Judicata and Collateral Estoppel
As part of the process to ensure judgments are final and binding, the rules of res judicata and collateral estoppel should be briefly mentioned. The doctrine of res judicata holds that a second lawsuit alleging the same cause of action as a previous one that has already been decided by a court of law cannot be litigated again and must be dismissed. The principle of collateral estoppel on the other hand bars a claimant from pursuing a second claim using a different cause of action based on any fact that had already been determined in the first lawsuit. The purpose of these rules is to establish legal certainty for the parties once all appeals have been exhausted. The Syrian courts should consider expanding the doctrine of collateral estoppel as they see fit within the limits of reason on a case-by-case basis to preclude litigants from attempting to forestall a final ruling on a dispute.
As part of the litigation process, the parties should be obliged to disclose all documents that are relevant to a lawsuit to each other as they could have a profound effect on the outcome of proceedings. The principle of disclosure is borrowed from the common law and aims to counter the element of surprise during trials. The underlying justification for it is that but for the requirement to disclose related documents to each other, the litigants could essentially ambush each other in court. An example would be a party submitting documents as evidence to the court in the absence of any warning to the other side. Such a move could prejudice the counterparty’s position since it would not provide them with sufficient notice to respond to its contents. If the claimant and the defendant supply copies of the documents to each other in advance, they would both be able to study them and prepare their positions accordingly. An exception to this rule would be privileged documents such as attorney-client communications and correspondences which would not have to be disclosed by a producing party but their existence would have to be recorded in a privilege log. The duty of disclosure would allow the parties to better organize and structure their arguments around the disputes, which should in theory accelerate trial hearings.
Recoverability of Legal Costs
Allowing for the recoverability of legal costs could go a long way to filtering out frivolous claims that obstruct the judicial system. In common law jurisdictions, a successful litigant is usually awarded legal costs, which include reimbursement from the unsuccessful counterparty for both their share of the court fees and their lawyer’s professional fees as long as they are deemed reasonable. In Syria, the judgment debtor usually bears all of the court fees but is rarely if ever ordered to cover the professional legal fees of the judgment creditor. There can be an inherent unfairness in the current approach since there are circumstances where innocent parties have to pay lawyers to represent them in baseless claims, particularly when they are being sued as part of a guerilla tactic so to speak. Even if they win the case, they still have to bear their own professional legal fees. To avoid unjustified lawsuits, obliging unsuccessful parties to bear the costs of legal representation for their opponents or a reasonable portion thereof may serve as a useful deterrent that reduces the caseload for the courts.
Self-Representation by Litigants
From time to time, there is an assumption among laymen, though not entirely warranted, that lawyers enjoy complicating a dispute to boost their relevance and thus, increase their professional fees. While it is no doubt a controversial statement, this theory should be tested in a positive way. Litigants, especially those who run businesses, should be encouraged to develop the skills needed to represent themselves in court. Their commercial astuteness coupled alongside their unfamiliarity with the law or legal procedures may induce them to hasten proceedings in order to save themselves time and money. They could also offer a fresh perspective to the litigation process which can be contrasted with the one adopted by lawyers. They may therefore be more susceptible to settling their dispute with their opponent under the auspices of the judge. The latter should take a more proactive approach in such situations bearing in mind the legal inexperience of the litigant especially if the other side has retained counsel. To this end, the courts should arrange for judicial services to be provided to parties representing themselves free of charge, including advice on document production and the drafting of pleadings. Doing so will not only accelerate court proceedings but will also go a long way in facilitating access to justice to persons who would otherwise not be able to afford legal representation.
Information Technology in the Judiciary
At the heart of the judicial reform process should be automation, digitalization and informatics, all of which would help speed up the litigation process. Court services should be provided online where claimants can file their claims. Notices to defendants can then potentially be effected digitally as opposed to the traditional service of process procedures, which are becoming outdated with time. Innovative solutions in this respect would also help facilitate cross-border notices that replace the current diplomatic channels. Where a dispute is not complex in nature and can be resolved relatively quickly, it may be worth considering the use of virtual court hearings in electronic litigation where the judges, lawyers and the parties can communicate remotely without the need to fill up the courtrooms. Such a recommendation should be considered in Damascus where the Palace of Justice has had to cope with an influx of lawsuits from all over the country due to the destruction of courthouses across Syria.
China is currently leading the world in developing artificial intelligence products for the era of modern litigation including in the field of informatics where the processing of legal data through computer software programs is disrupting the market for judicial services. As such, judicial cooperation with China in the information and communications technology field should be sought by the Syrian authorities.
Moving the spotlight away from the judiciary, arbitration should be encouraged and popularized as an alternative mode of resolving disputes in order to ease congestion in the courts. The current Arbitration Law 4/2008 adopts international practices by relying on the UNCITRAL Model Law on International Commercial Arbitration. Where there is a valid and clear arbitration clause in a contract, the courts should immediately recuse themselves without waiting for the parties to assert it in the first written pleadings if indeed the case comes before the judges for whatever reason. The prevailing rule is that unless a party affirms the presence of an arbitration clause in their first pleading submitted to the court, the right to arbitrate shall be considered waived and the court will continue to hear the case. It is highly recommended that judges should displace the jurisdiction of the courts to hear lawsuits in all instances where the contracts in dispute contain legitimate arbitration clauses to this effect.
The role of the judiciary should exclusively be to ratify and enforce arbitration awards, or nullify them solely due to procedural irregularities as prescribed by the Arbitration Law. The principle of party autonomy whereby the disputants themselves have control over the resolution process should be observed and upheld by the courts without exception. In addition, any public policy objections to enforcing domestic or foreign arbitral awards should be construed as narrowly as possible in order to ensure that the right of the parties to steer their own arbitration is respected. The concept of public policy is an obvious ground for challenging arbitral awards and attempting to set them aside. The emphasis must nevertheless be on limiting court intervention and giving credence to the consensual nature of arbitration, which are the main objectives of the UNCITRAL Model Law on International Commercial Arbitration.
One recommendation to address the enforcement of domestic arbitral awards, foreign arbitral awards and even foreign court judgments is to grant exclusive oversight to the Execution Court. Under the Arbitration Law, domestic arbitral awards are ratified by the Court of Appeal and enforced by the Execution Court. Under this procedure, they could in theory be appealed before the Court of Cassation on the basis of procedural irregularities if such claims are not afforded due attention by the Court of Appeal. Consequently, proceedings to enforce domestic arbitral awards continue to be lengthier than otherwise needs to be the case, a fact that runs counter to one of the objectives of arbitration, which is the speedy resolution of disputes. It should nevertheless be noted that the current position is preferable to that contained in the previous Arbitration Chapter in the Civil Procedure Code, which made the Court of First Instance the starting point for ratification of and appeals to arbitral awards, thus adding an additional layer to the court process.
Granting the Execution Court full authority over the ratification and enforcement of domestic arbitral awards may be an idea worth considering. Similarly, the Execution Court could have sole jurisdiction over the enforcement of foreign arbitral awards pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, of which Syria was an early signatory back in 1959. The recognition of foreign court judgments in accordance with the conditions laid down in the Civil Procedure Code could also be similarly enforced through the Execution Court.
There should be cooperation and input from among retired members of the judiciary, the Syrian Bar Association, potentially the Federation of Syrian Chambers of Commerce, the Federation of Syrian Chambers of Industry, and other interested syndicates and parties towards establishing arbitration centers in Damascus and other provinces, which also offer mediation services. The one in the capital could bear the name the ‘Damascus Arbitration and Mediation Centre’ or ‘DAMC’ and adopt similar rules to those of the Dubai International Arbitration Centre or DIAC as it is commonly known. DIAC is a popular forum for settling disputes throughout the region because it adheres to international standards of practice. Its experiences could therefore serve as a model for DAMC. By its very presence, DAMC would spearhead efforts to institutionalize arbitration as a recognized and reliable form of dispute resolution in Syria, which will undoubtedly catch the attention of potential foreign investors. The role of the judiciary in promoting an arbitration-friendly jurisdiction is essential to say the least. For the reasons already mentioned and countless others, a culture of arbitration needs to be further developed within the Syrian legal system.
On a more general note, professionals with expertise in a domain where there is a contractual disagreement could add more value to an outcome as arbitrators as opposed to judges with knowledge of the law. For example, an engineer would have more technical experience and understanding than a traditional judge to render a decision in a case involving a construction dispute. On this basis, the mindsight that judges or those individuals with a legal or judicial background are the first choice of arbiters when disputes arise is misconceived and needs to be adapted for scientific industries.
The use of dispute adjudication boards or DABs in construction contracts, which are comprised of independent and impartial adjudicators selected by the contracting parties, may prove advantageous during the reconstruction stage. DABs are fashioned in a way to temporarily resolve disputes on-site pending completion of the project. The intention is to avoid prolonged delays for the parties involved whether they are the employer or client, the engineering consultants or the construction contractor. The decisions of DABs which would be binding on all the parties for a limited time only until completion could then be either confirmed, amended or rejected by the applicable courts or arbitral tribunals depending on the one identified in the dispute resolution clauses in the contracts. They would assess costs, delays and other relevant matters accordingly after handover of the project if need be. Statistics indicate that in most cases, the findings of DABs are subsequently upheld so they do operate under a certain degree of legal certainty.
The recommendations contained herein are not intended to resolve the problems associated with a backlog of lawsuits in the Syrian courts on their own. Rather, they should be seen in light of a grand plan for judicial reform that stops testing the patience of litigants and instead gives them piece of mind through legal certainty. At present, time and resources are wasted in a judicial system prone to lengthy proceedings, countless layers of adjudication, rigid practices and guerilla tactics. A more user-friendly court system would inspire confidence among the local business community at present and foreign investors during the reconstruction era. The recommendations put forth from adopting the doctrine of judicial precedent to reforming the rules of procedure to raising awareness of alternative methods of dispute resolution are worth considering even if they are met by resistance from conservative elements of the judiciary who are set in their ways so to speak. The first step should be for the Ministry of Justice to form a committee to revisit the provisions of the Civil Procedure Code, the Evidence Law and potentially the Judiciary Law as well. Workshops would subsequently have to be arranged to spur debate among all the stakeholders about whether these recommendations are commensurate with the demands of the judiciary. Whatever the outcome, the subject of judicial reform is not one that should be delayed any further.