اتفاق التحكيم في منازعات سوق الاوراق الماليه Arbitration Agreement in Securities Market Disputes

Date
2014-03-12
Authors
محمد يحيى سلامه ابوارميله
Muhammad Yahia Salameh Abu Rmeileh
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Publisher
AL-Quds University
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.
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Keywords
القانون, Law
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