The New Lex Mercatoria in the Sudanese Legal System

in Arab Law Quarterly
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This article examines the status of the new lex mercatoria within the Sudanese legal system. Its thesis is that the Sudanese legal system is capable of accommodating this rising new lex mercatoria as an autonomous legal order and that Sudanese courts have shown a considerable willingness to apply its rules. This thesis is examined and data proved through identifying the legal and jurisprudential basis for the enforcement of the new lex by Sudanese courts. Thereafter, this is further fostered by examining the Sudanese judicial application of this law.

The New Lex Mercatoria in the Sudanese Legal System

in Arab Law Quarterly

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References

13

Dalhuisensupra note 1 at 1-2.

14

Ibid. p. 291.

15

Ibid. pp. 291-292. See some of his latest works: B. Goldman “The ‘New’ Law Merchant and the ‘Old’: Sources Content and Legitimacy” in: T.E. Carbonneau (ed.) Lex Mercatoria and Arbitration: Discussion of the New Law Merchant (New York: Transnational Juris Publications 1990).

18

Dalhuisensupra note 1 at 292-293.

19

Goode et al.supra note 10 at 4.

20

Ibid. p. 6. In spite of their insistence in this restricted use of the term lex mercatoria they were nearly obliged to surrender to the main stream when they stated in page 25 that “... a number of scholars equate the lex mercatoria with transnational commercial law so what is discussed in the ensuing paragraphs is examined in much of the literature under the label lex mercatoria or the new law merchant”.

23

Dalhuisensupra note 1 at 192.

26

Dalhuisensupra note 1 at 193-194. For elaboration on the debate on the degree of certainty as a prerequisite for the creation of this new legal order see p. 193.

27

Ibid. p. 201.

28

G. Bamodu“Extra-national legal principles in the global village: a conceptual examination of transnational law”Int. alr 4 (2001): 1 16.

29

Dalhuisensupra note 1 at 199-201.

34

Dalhuisensupra note 1 at 301. See also J. Dalhuisen “The operation of the international commercial and financial legal order: the lex mercatoria and its application—moving from the theories of legal positivism and formalism to the practicalities of legal pluralism and dynamism” E.B.L. Rev. 19(5) (2008): 985.

35

Then was Judge Bingham (1982) 1 wlr 961.

3

6 (1984) 3 wlr 241.

3

7 (1987) 3 wlr 1023.

40

Ibid. p. 245.

42

Dalhuisensupra note 1 at 209-213.

46

See the Interim Constitution of Sudan 2005Article 5(1) and the Judgments (Basic Rules) Act 1983.

51

Ibid. p. 370.

52

L.M. Al-Rimawi“Relevance of Sharīʿah as a legislative source in a modern Arab legal context: a brief constitutional synopsis with emphasis on selected commercial aspects”Comp. Law 32(2) (2011): 57 64.

54

N.M. Tabari“Islamic finance and the modern world: the legal principles governing Islamic finance in international trade”Comp. Lawyer 31(8) (2010): 249. It is stated that “Prohibition of Ribā requires that any reward or return should be accompanied by undertaking a level of risk and liability. Thus there can be no reward for time preference alone. Prohibition of Gharar forbids contracting under conditions of excessive uncertainty and unacceptable levels of risk”.

59

Khalilsupra note 24 at 624.

63

Teirsupra note 6 at 25.

66

Thompsonsupra note 24.

70

C. Thompson“The Sources of Law in the New Nations of Africa: A Case Study from the Republic of Sudan”Wisc. L. Rev. (1966): 1146.

73

Mohammedan Courts Ordinance 1902. For further consideration of this see Thompson supra note 24; Khalil supra note 24.

75

Thompsonsupra note 71.

76

See Mustafasupra note 3.

77

B.Z. Tamanaha“The rule of law and legal pluralism in development”H.J.R.L. 3(1) (2011): 1 6.

7

8 (2002) sljr 182 at 188.

87

See Mustafasupra note 3; Tier supra note 6; See supra Section 2 for detailed consideration of this provision.

8

9 (2002) sljr 130.

9

0 (2001) sljr p. 186. See also Sa⁠ʾeed Mohammed Ahmed v. Sebaira Enterprises (2008) sljr 209.

91

See in general Angladesupra note 7.

92

The Arbitration Act 2005s. 31. This law is generally based on uncitral Model Law of arbitration. In fact this section is almost a reproduction of Article 28(4) of uncitral Model Law. Among the countries which follow this Model Law at least in The Netherlands the official comment referred to the lex mercatoria as covered by this provision. See Dalhuisen supra note 1 at 318 footnotes.

9

4 (1983) sljr 1.

9

8 (2001) sljr p. 185.

10

1 (1983) sljr 1.

10

2 (2001) sljr 185.

10

5 (2009) sljr 179 (in Arabic).

10

7 (2012) sljr 178 (in Arabic).

11

1 (2006) sljr 133.

11

4 (1963) sljr 22 at 32.

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