Franćois-Xavier Licari, “L’Arbitrage rabbinique, entre droit talmudique et droit des nations” (Rabbinic Arbitration, Between Talmudic Law and the Law of the Gentiles) (April 19, 2013). Revue de l’arbitrage 2013, pp. 57-120.
Abstract: Rabbinical arbitration has existed for two thousand years, but remains largely unknown. After a long period of decline which lasted until the middle of the twentieth century, it is now in widespread use, and is participating in a renaissance of confessional arbitration throughout the world. Even though it applies fundamental mechanisms which are familiar to us, it is singular in several respects, the most significant being that rabbinical arbitration is not a form of alternative dispute resolution. For members of a Jewish community, it is – or should be – the principal mode of dispute resolution since, in principle, recourse to secular courts is prohibited by Talmudic law. Our study will start with the very nature and scope of this prohibition. Certain aspects of procedure before rabbinical tribunals also merit close examination. After having explored arbitration from an “internal” perspective, i.e. from Talmudic sources, we will examine this from an “external” viewpoint, i.e. from that of the law of nations, in other words the national legal system into which it must be inserted. Such insertion is not straightforward, since even though Talmudic law and the law of nations diverge in many respects by reason of their radically different nature (one is revealed, the other is contingent), in other respects they appear to be on a head-on collision course (witness evidence from women, inheritance rights in particular). This therefore raises questions as to the recognition and enforcement of rabbinical arbitral awards, and on the role of public policy in this respect.
Full text available at SSRN: http://ssrn.com/abstract=2253862