Examining the requirement of ijtihad in accepting the position of arbitration

Document Type : Original Article

Authors

1 Faculty member of Law Department of Hozeh and University Research Institute (Qom)

2 أستاذ المستویات العلیا فی حوزة قم

3 Member of the Faculty of Law, Ayatollah Boroujerdi University (RA)

Abstract

Despite the opinion of the famous jurists who believe that the requirement of ijtihad in the arbitrator is the same as the requirement in the appointed judge, but some jurists have not accepted it, and in law, although the necessity of the arbitrator's expertise regarding the dispute referred to him has been emphasized, but ultimately the will of the parties can be necessary. Ignore this expertise and leave the judgment to a non-expert. In this article, we are looking for an answer to this question, from the point of view of jurisprudence, is there a requirement of ijtihad in arbitration, like the judgment of installation, or not?

Since examining this requires determining the exact nature of consolidation and arbitration; In this article, first of all, in terms of nature, among the two theories of delegation and consolidative judgment, the judicial nature of arbitration is considered correct, and based on the common nature, the overlapping of the institution of "arbitration" in law with the institution of "consolidative judgment" in jurisprudence is deduced from jurisprudential evidence, and then, while criticizing and Examining the various theories proposed in relation to the requirement of ijtihad in the arbitrator,

Keywords

Main Subjects

Civil Jurisprudence Doctrines

Articles in Press, Accepted Manuscript
Available Online from 27 September 2023

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