اتفاق التحكيم في منازعات سوق الاوراق الماليه
Date
2014-03-12
Authors
محمد يحيى سلامه ابوارميله
Muhammad Yahia Salameh Abu Rmeileh
Journal Title
Journal ISSN
Volume Title
Publisher
AL-Quds University
جامعة القدس
جامعة القدس
Abstract
The study examined the subject of arbitration agreement in securities market
disputes, the problems and the challenges that accompanied it by identifying
the legal framework governing the arbitration agreement in securities market
disputes in respect of the general theory enshrined in the Palestinian
Arbitration Law No 3 for 2000 on one hand, and the Regulation of Dispute
Settlement and Arbitration in Securities Market of 2007 on the other hand.
The study discussed the subject through showing the consolidation of basic
principles of the arbitration agreement in securities market disputes and stated
the content of arbitration agreement in those disputes. Exposure to the
absence of arbitration agreement where entry in the means of arbitration and
began the arbitral process of non-existence of an agreement between the
parties to the securities market disputes to choose arbitration as an alternative
disputes resolution. In order to combine the theoretical and practical side, the
study moved on to the application of the general content of the arbitration
agreement in securities market disputes in some common disputes that had
occurred in this market.
The Study aimed to demonstrate that the absence of an arbitration agreement
in securities market disputes is a flagrant violation of the constitutional legal
norms which protect and ensure the right of people to resort to judiciary
which is a sacred right and should not prevent anyone to resort to other
means.
The study dealt with the subject by relying on the analytical and comparative
methods, through analysis and comparison between the position of the
Palestinian Legislature in the Arbitration Law and the Regulation of Dispute
Settlement and Arbitration in Securities Market with the laws and regulations
included, in order to reach the validity of the Palestinian Legislator method in
organizing that.
The study showed a range of results, the most important one of them
embodied in the Palestinian Legal system - through the Regulation of Dispute
Settlement and Arbitration in Securities Market - taken in the absence of
arbitration agreement in securities market disputes. It also showed that the
complete absence of arbitration agreement leads to violation the right of
litigation guaranteed by the Palestinian Basic Law, and the arbitral legal
norms expressed in the Palestinian Arbitration Law.
In order to ensure the legality of arbitration agreement in securities market
disputes, the study recommended that the Palestinian Legislator not to
legislate special legal norms governing the arbitration in securities market
disputes, because the general legal norms that organized arbitration under the
Arbitration Law No. 3 of 2000 are sufficient to cope with any dispute by the
means of arbitration.
The study also recommended that the Palestinian Capital Market Authority
should take the necessary decisions which should be forwarded to the
Palestine Securities Market, in order to abolish the rules that had been
devoted to the absence of an arbitration agreement. The study also
recommended that the Palestine Securities Market should carry out the
voluntary initiative to abolish this absence. All of this, is to prevent the
judicial abolition, whether constitutional abolition by the Palestinian Supreme
Court as constitutional court or through administrative abolition by the
Palestinian Supreme Court of Justice.
Description
Keywords
القانون , Law