The Interaction between Shariah and International Law in Arbitration

I. INTRODUCTION

"Canadian judges soon will be enforcing Islamic law. . . such as stoning women caught in adultery" began a recent WorldNetDaily article.1 A prominent British newspaper headline also direly predicted Soon We'll All Be in a Burqa2 Journalists penning these attention-getters were not referring to the upshot of a territorial invasion by "fundamentalist" Muslims, but to the possibility that religious tribunals applying shariah, or Islamic law, could soon be adjudicating certain classes of personal civil disputes in the Canadian province of Ontario. These journalists' visions appeared to materialize into reality in December 2004, when Ontario's Attorney General endorsed the establishment of Islamic arbitration boards with the ability to utilize religious principles that comply with provincial and national laws.3 Ontario thus seemed poised to become the first Western jurisdiction to sanction the use of shariah within a secular legal system. Western nations with burgeoning Muslim populations have accordingly been tracking this novel legal situation,4 which recently culminated in the Ontario government's surprising effort to ban the use of all religious law in arbitration.5 Supporters of the shariah proposal premise their arguments on the Ontario Arbitration Act ("OAA"), under which individuals can agree to vest dispute resolution authority in religious arbitrators, whose decisions are summarily enforced by Ontario courts. However, Ontario Premier Dalton McGuinty is currently seeking to pass legislation prohibiting religious law from being employed in arbitrations.6