Authors:Rafidah Mohamad Cusairi; Mahdi Zahraa First page: 1 Abstract: Source: Volume 32, Issue 1, pp 1 - 32The unavailability of civil courts to hear cases relating to Muslim family law and other related matters persuaded community leaders and religious scholars in the United Kingdom to establish several Sharīʿah councils. This article explores the role played by these councils in resolving matrimonial disputes, especially the process and procedure of issuing an Islamic divorce. Library and empirical research methods were employed. Three main UK Sharīʿah councils were visited wherein mediation and arbitration sessions, as well as monthly meetings, were observed to examine how disputes are handled and decisions made. The study leads to several findings. Mediation and arbitration are the main methods used in the process, and despite the relative success of Sharīʿah councils, they face challenges resulting from the dichotomy and overlapping jurisdictions of Islamic and English family law and the non-alignment of divorce issued by UK courts and religious divorce. PubDate: 2018-12-26T00:00:00Z
Authors:Yehya Ikram Ibrahim Badr First page: 33 Abstract: Source: Volume 32, Issue 1, pp 33 - 59This article analyses the choice of law issues associated with setting aside an arbitral award under the Egyptian Arbitration Code (the Code), the challenges posed by applying the Code to arbitration conducted outside Egypt, and the lack of a clear criterion to define the Code’s scope of application. Choice of law issues – such as the law governing the parties’ capacity, the law governing the agreement to arbitrate and the applicable curial – are not addressed by defined choice of law rules. Under Egyptian law, there are several conflicting choices of rules. Finally, the article focuses on the Egyptian courts’ tendency to apply Egyptian law extraterritorially, either to protect Egyptian public policy or to apply Egyptian mandatory rules to determine the procedural validity of the arbitral award and the arbitration proceedings in general. PubDate: 2018-12-26T00:00:00Z
Authors:Ahmed Samir Hassanein First page: 60 Abstract: Source: Volume 32, Issue 1, pp 60 - 79The Qatari legislator has adopted a penal code that encompasses rules derived from a divine source and also deals with several other crimes common in positive penal laws. Whoever reads the Qatari Penal Code will notice the significant influence that Islamic criminal rules have had on that law. Its inaugural article unequivocally provides that rules of Islamic law (shariah) shall apply to all crimes of hudud, qisas and diya if a special condition is met. In all other cases, however, shariah rules still permeate the entire code through the proscription of acts derived from shariah law. This article thus aims to present a concise overview of the contemporary Qatari experience in adopting rules derived from Islamic criminal law into its penal code, for the purpose of highlighting its points of strength, as well as identifying points of weakness to overcome. PubDate: 2018-12-26T00:00:00Z
Authors:Saleh Al-Barashdi First page: 80 Abstract: Source: Volume 32, Issue 1, pp 80 - 97This article examines Oman’s Commercial Code’s preventive composition scheme with creditors. Various conditions that a trader needs to meet in order to apply for preventive composition are highlighted. Then, the issues of management displacement, of staying creditors’ actions during the proceedings and of cramming-down dissenting creditors are examined. The article concludes by demonstrating that the preventive composition scheme in Oman is far from being a rescue scheme. PubDate: 2018-12-26T00:00:00Z
Authors:Abdullahi Saliu Ishola; Isa Olawale Solahudeen Ibrahim Akangbe Abstract: Source: Page Count 510Intellectual property (IP) protection has attracted diverse views among Islamic law researchers, leading to its eventual acceptance on the premise of indirect legal authority by most Muslim scholars. This paper explores the preconditions that any innovation on the internet must meet to enjoy IP protection under Islamic law. It provides working tools for Muslims on the principles to be observed in seeking IP protection for any of their innovations. It also urges governments of Muslim countries which have hitherto refused to accord legal protection to IP on religious grounds to change their position. PubDate: 2018-10-26T00:00:00Z
Authors:Farouq Saber Al-Shibli Abstract: Source: Page Count 26When investors decide to deal with Islamic banks, one of their main concerns is to ensure their businesses are protected in the case of disputes arising. For this reason, developing a good legal framework for resolving disputes is crucial to strengthen the position of Islamic banks in the global financial market. However, the unique nature of Islamic financial products and transactions requires that the disputes arising from this sector should not be dealt with by means of conventional laws and courts (litigation). It can be said that current practice, where Islamic banking and finance disputes are resolved by litigation with lopsided judgments is counterproductive to the practice of Islamic banking and finance. This article therefore explores the problems associated with resolving Islamic banking disputes through litigation and proposes arbitration as an alternative method for establishing a legal framework for dispute resolution in countries where Islamic banking is implemented. PubDate: 2018-07-09T00:00:00Z
Authors:Iyad Mohammad Jadalhaq Abstract: Source: Page Count 16The United Arab Emirates (UAE) legislator has regulated gross fraud in the Civil Code, which derives its provisions from the Hanafi school of Islamic jurisprudence. A penalty was adapted so that when gross fraud has an impact on a contract, the defrauded contracting party can terminate the contract in question. The legislation also regulates slight fraud, but only in two very specific cases. This article aims at determining the accuracy of Article 189 that regulates slight fraud, and then identifies its shortcomings by analysing the cases in which slight fraud affects a contract. It concludes that this text is inaccurate, and suggests the UAE legislator amend Article 189. In addition, we suggest a new definition of terminal illness. PubDate: 2018-06-04T00:00:00Z
Authors:Nisreen Mahasneh Abstract: Source: Page Count 21This study compares the approach that Qatari Civil Law No. 22/2004 (QCL) takes to standard terms with that taken by the UNIDROIT Principles of International Commercial Contracts 2016. The main difference between QCL and the UNIDROIT Principles, is that the QCL relates standard terms contracts with adhesion contracts. The latter are only concerned with strategic goods and services that are monopolized by the supplier. Another difference is the remedy; under the QCL, the judge has the authority not only to exempt the adhering party from the oppressive standard term, but to also amend that term. However, under the UNIDROIT Principles, surprising terms are invalid. The study recommends that the Qatari legislator remove the connection in the QCL between standard terms contracts and adhesion contracts, and limit judges’ authority to exempting disadvantaged parties from oppressive terms. PubDate: 2018-06-04T00:00:00Z
Authors:Nidhal Mekki Abstract: Source: Page Count 30Le processus qui a mené à l’adoption de la nouvelle constitution tunisienne fait figure de modèle à suivre dans la région arabe. La Tunisie a opté pour une assemblée élue de manière démocratique pour élaborer la constitution. Outre son caractère représentatif des différentes sensibilités politiques, cette assemblée a suivi un processus inclusif, ouvert et transparent. Au-delà même du texte de la constitution, c’est le processus suivi qui importe, car il a permis d’associer directement les citoyens et la société civile à cette tâche et occasionné un débat public sur les plus importants choix de société. Le processus constituant tunisien a été une leçon collective de droit constitutionnel et, malgré ses nombreuses lacunes, il a permis d’aboutir à un nouveau contrat social et politique dont la genèse pourrait inspirer de nombreux pays arabes qui seront appelés, tôt ou tard, à s’engager sur la voie de la transition démocratique. PubDate: 2018-04-16T00:00:00Z
Authors:Man Baker Abstract: Source: Page Count 23This article sheds light on the Islamic legal ruling concerning apostasy (riddah). It reviews the verses of the Qur’an and the Hadiths of the Prophet Muhammad concerning apostasy, with the aim of reaching a firm conclusion on this topic, particularly because Islam has been accused of being a religion that forces people to embrace it, even against peoples’ free will. The article also reviews Muslim scholars’ points of view concerning this topic and the historical circumstances and conditions regarding it. The article concludes that Islam never sentences anyone to death for eschewing Islam; it merely does so for riddah. PubDate: 2018-03-19T00:00:00Z
Authors:Mohammad Omar Farooq; Nedal El-Ghattis Abstract: Source: Page Count 40The centrality of Sharīʿah as a term and concept, together with its ubiquitous usage, reflects present Muslim understanding of their religion. Existing research indicates this Sharīʿah-based conception represents a later historical development. However, earlier studies have not documented contemporary understanding and use of the term in the primary sources of Islam. This has important implications regarding the imparting of sacredness according to its traditional conceptualization. Based on comprehensive research and close examination of the Hadith literature in particular, this represents the first work to examine whether and to what extent the term Sharīʿah was used by the Prophet and his companions. The present investigation makes the case for fundamentally re-evaluating the role of the Sharīʿah in understanding Islam, and argues that this is necessary in order for a positive impact on contemporary Muslim societies and their relationship with the rest of the world to occur. PubDate: 2018-02-28T00:00:00Z
Authors:Lafi Daradkeh Abstract: Source: Page Count 16This article examines the constitutionality of Article VII of the 1958 New York Convention (NY Convention) under Egyptian and Jordanian law. Under Article VII, which provides for the application of the more-favourable-right provision, the winning party in an arbitration can rely on any regime provided by the local legal system to recognize and enforce the arbitral award. In doing so, the winning party can bypass provisions under which the losing party can resist enforcement. This article examines whether Article VII constitutionally provides modes of enforcement by which the winning party can enforce a legal arbitral award as well as providing grounds of refusal by which the losing party can resist enforcement of illegal awards. As such, this article examines the constitutionality of Article VII, and asks whether it balances the interests of the winning party and the losing party under constitutional law in Egypt and Jordan. PubDate: 2018-02-23T00:00:00Z
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