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An-Najah University Journal for Research - B (Humanities)

DOI

https://doi.org/10.35552/0247.38.9.2246

Abstract

This research tackles the subject of arbitration in a civil lawsuit, as a defense that can be raised by any of the litigants, and the effect of this plea, whether by not accepting it, dismissing it, or stopping its consideration. It also looks at the condition of arbitration at all stages of the lawsuit. Research Problem: It can be summed up in that, Palestinian Arbitration Law did not specify the nature of the plea to arbitration in the civil cases. Purpose: The research aims to determine the legal nature of this plea, and its impact on the civil case. It concludes that the condition of arbitration prevents the Court from hearing the civil lawsuit. However, the laws under study differed in regulating this defense, and therefore in determining its legal value. Whether this defense was procedural, or substantive, or something else. There are some legislations that expressly decide that arbitration is considered a plea of non-acceptance. Other legislations consider it to be one of the defenses that are not related to public order, and, therefore, that must be made before any procedural plea, request or defense in the case under penalty of forfeiture. Yet, some legislations considered such a defense as a reason that would halt the proceeding before the Court without any further clarification on its precise legal value. Methodology: The research used descriptive, analytical and comparative methodologies. Results: One paramount result of this research is that the Palestinian Arbitration Law was limited to stipulating that pleading arbitration leads to stopping the lawsuit, without clarifying the procedures that follow this stopping. On the other hand, this law considered that filing a lawsuit does not prevent the initiation of arbitration proceedings, or the continuation of therein, or issuing an arbitration decision. Recommendations: The research has many recommendations, the most important of which was the recommendation to the Palestinian legislator to consider the plea to arbitration as a reason not to accept the case, and not as a reason to stop the case.

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