Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
I. Choice of law
There are no general rules in Saudi Arabia which govern →choice of law. There are no general statutes and there is no pertinent case-law or legal literature. ‘Case law is not published; indeed, is not even public’, as Frank E Vogel (Frank E Vogel, Islamic Law and Legal System – Studies of Saudi Arabia (Brill 2000) 98) correctly points out. There is no system of regular case reporting. Only one certain (but not constant) exception exists with regard to the decisions of the Board of Grievances (henceforth BoG).
The country is probably one of the very few or perhaps the only one which does not accept a system of private international law. The Saudi Arabian General Investment Authority (SAGIA), a governmental agency which licenses foreign investments, wrote explicitly in 2004: ‘Saudi courts do not recognize the concept of conflict of laws’ (al-qânûn al-duwalî al-khâss), since ‘Saudi Arabia has the most comprehensive Islamic legal system in the world’. Therefore, Saudi Arabian rules regarding private international law are subject to Islamic law, since the entire substantive and international private law in the country is based on Sharî’a (principally of the Hanbali school of jurisprudence) so far as no special laws exist (especially in the fields of commerce and business). Islamic law does not recognize choice of law in the Western sense, as Saudi Arabia does not accept the equivalence of all legal systems in the field of private law. There is a kind of overarching rule which favours the application of Islamic (Saudi Arabian) law when there is a choice of law. This means that a judge, if he is competent according to the Saudi Arabian rules of international jurisdiction, will principally apply the rules of Islamic law to a p. 1dispute brought before him regardless of any contractual provision stipulating the jurisdiction of a non-Saudi court as the BoG, eg as decided in the Korean/Saudi Arabian case The A, judgment no 114/C/C/9 of 1414/1993.
From family law cases reported in the Saudi press, for example, we can see that all matters relating to →marriages and divorces involving foreigners in Saudi Arabia are judged according to Saudi Arabian law (→Divorce and personal separation).
The only two (and hardly ever mentioned) exceptions of a statutory conflict-of-law rule in Saudi Arabia were, until the coming into force in 2012 of the new Arbitration Act (M/34), arts 7 and 117 of the Negotiable Instruments Statute (nizâm al-awrâq tijârîya), Act no M/37 of 11.10.1383/24 February 1964, which stipulated that a person’s capacity to be a party to a →bill of exchange, or to draw cheques, is subject to the lex patriae (nizâm mautin). Without hitherto joining the Convention of 7 June 1930 for the Settlement of certain Conflicts of Laws in Connection with Bills of Exchange and Promissory Notes, 143 LNTS 317, Saudi Arabia adopted through the Act of 1964 its essential →prescriptions and only disregarded those parts that were in contradiction with Islamic law. This is especially true for the payment of interest on the promissory note and →the bill of exchange (arts 6 and 117 of the Act).
The second exception was art 3 of Regulation (lâ’iha) No 58 of the Council of Ministers of 17.1.1383/10 June 1963, according to which the law applicable in legal disputes in which the Saudi Arabian state or a state institution is a contracting party may not be chosen by the contracting parties. The law to be applied is instead always Saudi Arabian law as the law of →place of performance. Article 2 of the Regulation also prohibited in principle arbitration clauses and agreements in such cases. The same is true today. Public bodies may not conclude any arbitration agreements unless the consent of the Prime Minister has been given or arbitration is permitted under a special legal provision (art 10 no 2 of the new Arbitration Act, Act No M/34 of 1433/2012).
Completely new is the ruling in art 38 no 1 lit a of the Arbitration Act of 2012, for this opens up for the first time the legal possibility (albeit only in matters of arbitration) of the parties choosing the law to be applied, as long as this does not contradict the principles of the Islamic Sharî’a and Saudi →public policy. Kilian Bälz rightly calls this ruling ‘eine kleine Sensation’ (a little sensation) (Kilian Bälz, ‘Form des Schiedsrechts in Saudi Arabien’  SchiedsVZ 251).
Furthermore, unlike several states in the Levant in continuation of the previous legal situation in the Ottoman Empire (eg →Egypt, Jordan and →Lebanon), Saudi Arabia also recognizes no interpersonal/interreligious private law (→Interreligious law). That is, Christians, Jews and Muslims of a different school of jurisprudence to the Hanbali school dominant in Saudi Arabia are essentially subject in the area of statut personnel (especially family and inheritance law) to the Islamic law of this school. The rules of the Hanbali school of jurisprudence deviate from those of the Hanafi school, which was once significant in the Ottoman Empire; the rules of the latter school are more liberal in this area than the rules in Saudi Arabia.
II. International procedural law
Only problems related to international procedural law have so far played a role in Saudi Arabian legislation and very sporadically in case-law. We should take into account here the fact that new laws have come into force in recent years (2007 and especially 2012), which means that the literature available is usually not up to date with regard to the most recent legislation.
Discussed below are the problems associated with the international jurisdiction of Saudi Arabian courts, and those related to the recognition and enforcement of foreign judgments and arbitral awards in Saudi Arabia.
1. International jurisdiction of Saudi Arabian courts
Before discussing the international jurisdiction of Saudi Arabian courts, the legal foundations have to be clarified. Without a doubt, it is the Procedure Code of the Sharî’a courts (M/21) of 1421/2000 that is in force today. On account of its art 265, a number of laws have been repealed – surprisingly, though, not the previous Procedure Code (M/1) of 1410/1989, which almost always literally corresponds to the Code that is now valid (three minor exceptions). In particular, the Regulations on the international jurisdiction of Saudi courts are identical in both Codes. Articles 24–30 in the current Act correspond literally to arts 23–29 in the earlier p. 1Act. It is therefore worth asking whether a tacit repeal of the earlier Code can be assumed here. Since substantive changes have also not occurred in the area of international jurisdiction, we can nonetheless leave the answer to this question open here.
As already mentioned, rules on the international jurisdiction of Saudi Arabian courts are today only legally standardized in the Procedure Code of the Sharî’a courts (M/21) of 1421/2000. These courts, from the Saudi point of view, are concerned with general (that is, Sharî’a) jurisdiction. At the same time, there are also specialized courts, of which the BoG was the most important in the area of international procedural law up until 2012. Although basically a multilevel administrative court it was given, inter alia, jurisdiction for the recognition and enforcement of foreign judgments and arbitral awards from 1982 at the latest and most recently, for example, by art 13 lit g of the BoG Act (M/78) of 1428/2007 for historical reasons. Article 96 of the Enforcement Act (M/53) of 1433/2012 repealed this norm, though. In section II.2.c) below, the new legal situation since 2012 will be presented.
The Enforcement Act, Act no M/53 of 1433/2012 contains in its art 4 of course no regulations on the international jurisdiction of Saudi Arabian courts; however, it does on their local jurisdiction (al-ihktisâs al-makânî).
Issues related to the jurisdiction of the general courts are governed in arts 24–38 of the Procedure Code (M/21). The Act not only contains rules on the substantive and territorial jurisdiction of the courts (arts 31–38), but also, in arts 24–30, rules governing international jurisdiction (al-ikhtisâs al-duwalî), which are concerned with two procedural requirements that (again from the Saudi point of view) are to be separated. International jurisdiction determines whether Saudi Arabian courts have jurisdiction at all for deciding on a legal dispute, and local jurisdiction relates to the court seized by the claimant within Saudi Arabia (Riyadh, Jeddah, etc).
The Act contains in its art 24 an exorbitant arrangement of jurisdiction in favour of Saudi Arabian courts, which, as a result, also have international jurisdiction in all cases in which an action is brought against a Saudi person abroad, even if this person is not domiciled or habitually resident in Saudi Arabia. This means that the Act solely takes into account the Saudi Arabian →nationality of the defendant, wherever he or she may be residing. Saudi Arabian courts therefore always compete for jurisdiction when a Saudi is subject to legal action abroad. Article 24, though, will only protect him or her through international procedural law if, in a procedure abroad, he or she is a defendant or respondent. This will only not apply if the action relates to real property located abroad; in this case, the Saudi Arabian courts have no jurisdiction according to arts 24, 25 and 28.
Article 24 can of course have an impact on the recognition of judgments issued against Saudis abroad. At least under art 5 no 2 of Resolution (qarâr) No 116 of 1428/2007 of the Chairman of the BoG, the judgments are not eligible for recognition, since if the court abroad has not observed the rules on international jurisdiction recognized in Saudi Arabia, then it has already violated the competing (not just exclusive) international jurisdiction of Saudi Arabian courts and has thereby prevented its judgments from being recognized. However, whether this rule still applies today after the coming into force of the Enforcement Act, Act M/53 of 1433/2012, remains doubtful (see section II.2.c) below).
Under art 25, Saudi Arabian courts also have jurisdiction in those cases when a foreigner is domiciled in Saudi Arabia and the legal dispute is not concerned with real property located abroad.
Under art 26, Saudi Arabian courts also have jurisdiction when a foreigner is not domiciled in Saudi Arabia, but where the legal dispute is concerned with real property located there or with insolvency proceedings (→Insolvency, jurisdiction and vis attractiva) begun in Saudi Arabia.
A special rule applies under art 27 for Muslim foreigners not domiciled in Saudi Arabia. In the cases enumerated in this Regulation, Saudi Arabian courts also in fact have jurisdiction in family law disputes (→marriage, divorce (→Divorce and personal separation), child support, parentage, parental care for persons and property, etc) under the conditions laid down in this Regulation if the defendant is not domiciled there.
The prorogation of jurisdiction of Saudi Arabian courts is, unlike its derogation, provided by law, as long as the legal dispute is not concerned with any real property located abroad (art 28). Furthermore, Saudi Arabian courts may adopt provisional and preventive measures, even when they have no jurisdiction over the matter concerned (arts 29 and 30).
2. p. 1Recognition and enforcement of foreign judgments
a) The legal situation before 2012
Since essentially the same rules apply today as for the actions brought until 2012 for the recognition and enforcement of foreign judgments (talabât tanfîz al-ahkâm al-ajnabîya), we should first of all discuss the earlier legal situation. For a long time, it was the BoG that had jurisdiction here originally under art 8 lit g of the BoG Act of 1402/1982. The legal situation prior to 1982 can be put aside. Of later additions to the BoG Act, we only need to mention in this context that Act no M/11 of 1414/1993 also transferred jurisdiction for the recognition and enforcement of foreign arbitral awards to the BoG. This Act was quite clearly issued in connection with the ratification of the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3), with this Convention then coming into force in Saudi Arabia on 18 July 1994. Given the many additions to the BoG Act, we could certainly speak up until 2007 of an administrative and commercial court.
In relation to the BoG Act of 1402/1982, the important implementing Regulation No 190 was issued on 16.11.1409/20 June 1989, this Regulation being based on Circular (ta’mîm) No 7 of the President of the Board of Grievances of 15.8.1405/6 May 1985 (Yahya Al-Samaan, ‘Dispute Resolution in Saudi Arabia’ (2000–2001) 16 YIMEL 82). Article 6(2) of the Regulation determines the conditions under which a foreign judgment can be recognized and enforced in Saudi Arabia. This could (and also still can today) only happen if →reciprocity (al-mu’âmala bi-l-mithl) is guaranteed between Saudi Arabia and the state in which the judgment is delivered, and the judgment does not contradict Regulations of the Sharî’a (ahkâm al-sharî’a al-islâmîya). What seems certain is that a restriction to judgments of courts in Arab states, as stated in the exposition of motives of the BoG Act of 1982, does not occur through the implementing Regulation of 1989.
Until 2007, the starting point for the recognition and enforcement of foreign judgments was, as just mentioned, art 6(2) of Regulation No 190 of 1409/1989. Prerequisites were the reciprocal recognition and enforcement of judgments (equal treatment), and they were not allowed to conflict with the rules of the Sharî’a. What this meant was often discussed in legal literature, although not much was known in detail due to the paucity of case-law. It was assumed that it could include, for example, credit and default interest (because of the ribâ prohibition), claims as assignee (because assignment (hawâla l-haqq) is unknown in Islamic law or is at least a delicate issue), claims for loss of profit (because not sufficiently precise; a problem of gharar) and claims arising from →insurance contracts (also because of gharar).
Unambiguous is now a judgment of the BoG from 2007 on the interest problem: judgments abroad regarding compensation claims are in principle capable of enforcement, but not with respect to default interest that has also been claimed, since this would suggest a violation of the Sharî’a. This is a judgment of the 20th Senate No 78/D/F 20 of 29.7.1428/10 August 2007 in case 343/1/Q 1424, BCCI v Khalil.
This judgment confirmes the rule in art 5 no 1 of Resolution (qarâr) No 116 of the President of the Board of Grievances of 11.7.1428/25 July 2007 regarding foreign judgments (‘which violate Islamic rules’). Before the enactment of the Law of Enforcement in 1433/2012, this was the first to standardize in detail the prerequisites for the recognition and enforcement of foreign judgments.
A few words to begin with about the problem concerning the reciprocity according to autonomous Saudi Arabian law before 2012. I have available three judgments made by the BoG in two legal disputes. The first dispute is the generally well-known Fanari case: judgments from 1409/1989 (first court hearing) and 1410/1992 (court of appeal). The second is the aforementioned BCCI (Bank of Credit and Commerce International Group) case from 1428/2007. The first case was about the problem of reciprocity between Saudi Arabia and the UK (in this case, England). The BoG accepted in the first court hearing the reciprocity between the two states, while the court of appeal then denied this.
The three judgments show that, from a Saudi Arabian perspective, the granting of reciprocity can be accepted on the basis of a state treaty, a law or the legal practice of the state in which the judgment has been issued. A reciprocity that has been granted only in actual practice is therefore sufficient. This is something that the claimant in Saudi Arabia has to prove. The view, partly in the legal literature, regarding the p. 1Fanari case seems appropriate here: that the court of appeal of the BoG did not understand or misunderstood the relatively complicated English proceedings on the recognition of foreign judgments. This is probably why the court considered the evidence submitted by the claimant in the proceedings as not being sufficient to ensure reciprocity. However, in view of the extensive array of documents submitted by the claimant, we wonder what else he could have furnished.
The third judgment of the court of appeal of the BoG from 2007 was concerned with a Saudi Arabian/US case and related to the decision of a court in the District of Columbia. What was found initially in the context of page-long explanations was that no Saudi Arabian judgment had ever been recognized and enforced in the USA. Basing its judgment on statements made by the former (1983–2005) Saudi Arabian ambassador to the USA (Prince Bandar bin Sultan), by a former American judge, and by a controversial judgment in the Alesayi Establishment case, the BoG nonetheless found that there was no special provision preventing the recognition and enforcement of a foreign, in casu Saudi Arabian, money judgment. No further reasons are given by the BoG.
Solely on the basis of the above-mentioned (no US statutes quoted), the BoG came to the conclusion that, on account of the ‘judicial order made by the US district court in the District of Columbia’, the claimant may claim from the Saudi Arabian defendant the amount of compensation demanded (without default interest). In doing so, the court is assuming in its decision the reciprocity in Saudi Arabia’s relationship to the USA, or at least in the District of Columbia, without a relevant judgment having previously been issued in the USA. What is truly surprising here is that the mere legal possibility to recognize shown by the foreign legal system is sufficient.
After presenting the three judgments of the BoG, it can be said in summary that the treaty-based guarantee of reciprocity is, contrary to many statements in the legal literature, not required. What suffices is its guarantee in actual practice and, as we can see from the most recent of the three judgments that are available, the mere legal possibility to recognize shown by the foreign state concerned is sufficient. What is also clear is that it is not only judgments made by Arab states that can be recognized in Saudi Arabia.
What may otherwise intervene in inter-Arab cases is the Riyadh Convention (Riyadh Arab Agreement for Judicial Cooperation of 6 April 1983, League of Arab States, available at <www.refworld.org>), which was ratified by Saudi Arabia through Act M/14 of 12.8.1420/20 November 1999. This replaced the Arab League Convention on the Enforcement of Judgments and Arbitral Awards of 14 September 1952 (Cairo Convention), but it is not in force in all Member States of the Arab League. However, it has come into force in Bahrain, Iraq, Jordan, Libya, Mauritania, Morocco, Somalia, Sudan, Syria, →Tunisia and Yemen.
c) The legal situation since 2012
Article 96 of the Law of Enforcement (al-nizâm al-tanfîz), Act no M/53 of 1433/2012, repealed, among other things, art 13 lit g of the Act Concerning the Board of Grievances, Act no M/78 of 1428/2007. This Act (petitions for enforcing foreign judgments and decisions of foreign arbitrators) gave jurisdiction to the BoG for the recognition and enforcement of foreign judgments and arbitral awards. The reason why the BoG (which is basically a multilevel administrative court (mahkama idârîya)), as can be readily seen from the BoG Act of 1428/2007, was given jurisdiction is not known. In any case, doing so was an alien element in this Act.
Authoritative (and more correct from a legal point of view) are now the relevant regulations in the Law of Enforcement of 2012, whose art 8 no 1 gives jurisdiction for the enforcement of foreign judgments to every general court (that is, Sharî’a court) and, in particular, to the enforcement department vested with local competence under art 4 (al-dâ’irat al-tanfîz), and no longer to the BoG. This affects judgments, court orders, awards of arbitrators and authenticated writs issued in a foreign country (art 9 no 6 of the Act). If necessary, though, the Supreme Judicial Council may establish under art 8 no 3 of the Act special courts for the enforcement of these judgments, etc. However, as far as I see, this has not yet happened.
Article 11 of the Act standardizes the prerequisites for the recognition and enforcement of foreign judgments, with these prerequisites not differing significantly from those that existed in the past. Otherwise, the rules in conventions ratified by Saudi Arabia take precedence, and the reciprocal treatment of Saudi judgments must be ensured in the relevant foreign state (art 11(1)).
p. 1Article 11(2) nos 1–5 of the Law of Enforcement of 1433/2012 specifies in detail the conditions under which judgments issued in foreign states can be recognized and enforced in Saudi Arabia; namely, Saudi Arabian courts would not have had jurisdiction in the case, and the foreign court must have had jurisdiction on the basis of Regulations governing international jurisdiction valid in the particular state (art 11(2) no 1).
The defendant in the legal dispute abroad must have been involved in the process, must have been properly represented and must have had the opportunity to defend themself (art 11(2) no 2). The foreign judgment must have become final in accordance with rules in the state in question (art 11(2) no 3). The judgment is not eligible for recognition and enforcement if it has been given in a case in which a judgment or a decision by a Saudi Arabian court already exists (art 11(2) no 4). Finally, a foreign judgment is not eligible for enforcement if it contradicts the rules of Saudi Arabian public policy (ahkâm al-nizâm al-’âmm) (art 11(2) no 5).
What may be problematic, though, is that the provisions set out in the Law of Enforcement of 1433/2012 do not correspond in each case to the detailed rules in the aforementioned Resolution No 116 regarding foreign judgments, which was issued by the President of the Board of Grievances in 1428/2007. It is questionable whether, after the coming into force of the Law of Enforcement, the general courts (the Sharî’a courts) which now have jurisdiction apply the earlier rules, since these rules are an internal ruling of the President of the BoG, who has not had jurisdiction for the recognition and enforcement of foreign judgments since 2012.
One should carefully note several differences. While art 11(2) no 5 of the Law of Enforcement of 1433/2012 states that a foreign judgment is not eligible for recognition and enforcement if it violates Saudi Arabian public policy, art 5 no 1 of Resolution No 116 of 1428/2007 stated that recognition is excluded if it violates, either entirely or partially, the rules of the Islamic Sharî’a (ahkâm al-sharî’a al-islâmîya) or public policy (nizâm al-’âmm).
Article 11(2) no 1 of the Law of Enforcement of 1433/2012 states that the foreign court must have had jurisdiction on account of the rules governing international jurisdiction that are valid in the sentencing state. In contrast, art 5 no 2 of Resolution No 116 stated that the judgment needs to have been issued by a legal authority in accordance with the rules of international jurisdiction recognized in Saudi Arabia. This is not an insignificant difference. However, due to a lack of existing case-law, we cannot say which rules the courts follow.
Article 9 of Resolution No 116 of the President of the BoG of 1428/2007 is also very important, for this provision stipulated that the BoG only had to check whether the judgment of a foreign court met the requirements of Resolution No 116, and in particular whether any procedural error had been committed; it did not consider the court’s judgment as such; in other words, a révision au fond did not take place. However, such a stipulation can no longer be found in the Law of Enforcement. How Saudi courts will decide is an open question. In particular, it is not clear whether Resolution No 116 of the President of the Board of Grievances is still to be applied at all, since this court no longer has jurisdiction for the recognition and enforcement of foreign judgments.
There is much reason to suggest that, since 2012, only the relevant stipulations of the Law of Enforcement apply, for this is a law and not just an internal, albeit very detailed, administrative Regulation issued by the President of the BoG. We can point to two rulings from the field of family law as examples. Article 5 no 8 of Resolution No 116 stipulated that a foreign judgment establishing the parentage of a child (nasab) is not eligible for recognition in Saudi Arabia if no acknowledgement (iqrâr) by the father exists. Article 5 no 9 stipulated that a foreign judgment obliging a Saudi party to pay maintenance (nafaqa) for more than four years is not recognized and enforced in Saudi Arabia if the person liable to provide maintenance does not acknowledge the judgment.
III. Recognition and enforcement of foreign arbitral awards
Finally, something should be said about a problem related to international arbitration and more precisely, about the recognition and enforcement of foreign arbitral awards. The Arbitration Act applicable today, Act no M/34 of 1433/2012 (which was influenced by the United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17), repealed Act M/46 of 12.7.1403/26 April p. 11983 (art 57). The new Act contains, like the former Act, no rules concerning this problem. However, as is expressly stipulated in art 2 of the Arbitration Act, conventions ratified by Saudi Arabia have precedence over autonomous law.
Saudi Arabia has been a party since 18 July 1994 to the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3). Ratification took place through Act No M/11, dated 16.7.1414/30 December 1993, published in Umm al-Qurâ (Official Gazette), dated 9.8.1414/21 January 1994 (with reciprocity reservation). Thus, the rules of the New York Convention have been applicable since that date. However, since 2012, the body with jurisdiction for this is no longer the BoG, since art 13 lit g of the BoG of 1428/2007 was repealed by art 96 of the Enforcement Act, Act no M/53 of 1433/2012. As already pointed out, this article gave jurisdiction for the recognition and enforcement of foreign judgments and arbitral awards to the BoG. Thus far, there are no special regulations governing the procedure for recognizing and enforcing arbitral awards issued in a Member State of the New York Convention. Two problems need to be highlighted here.
First, under art V(2)(a) of the Convention, the recognition and enforcement of a foreign arbitral award is not possible in Saudi Arabia if the matter is ‘not capable of settlement by arbitration under the law of that country’. This means that arbitration agreements or clauses in contracts with public-sector institutions were not possible on account of the above-mentioned Regulation No 58 of the Council of Ministers of 1963. Where an arbitral award is issued abroad in such a matter, it is, in dubio, therefore not eligible for recognition or enforcement in Saudi Arabia. The same now holds true on account of art 10 no 2 of the new Arbitration Act M/34 of 1433/2012, since it states that government bodies cannot ‘agree to enter into arbitration agreements upon approval by the prime minister unless allowed by a special provision of law’.
Article V(2)(b) of the New York Convention could also prove problematic. According to this provision, the recognition and enforcement of arbitral awards is not possible if Saudi Arabian public policy is thereby violated. Article 2 of the Arbitration Act M/34 of 1433/2012 stipulates explicitly the primacy of the rules of Islamic law (ahkâm al-sharî’a al-islâmîya). What this means is a delicate matter. What is certain from the case-law of the BoG is that claims asserted for the payment of interest alongside the main claim violate Saudi Arabian public policy due to the ribâ prohibition. What is also problematic in relation to the recognition and enforcement of foreign arbitral awards are probably the other cases that have been mentioned above for the recognition and enforcement of foreign court judgments (see section II.2.a) above). All of this is open to conjecture because case-law is not yet known. However, one should always keep in mind that, from the Saudi Arabian point of view, the constitutional legislation (Basic Law of Governance of 1412/1992) makes the Sharî’a the ultimate source of law.
Practical dealings with the recognition and enforcement of foreign arbitral awards in Saudi Arabia are not known up to now, and relevant case-law cannot yet be investigated.
This report is current as of 2014.
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