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Ahmad Mohammed al-Darbas and Mohammed Ebrahem al-Wasmi

Abstract

This article intends to present the significance of mortgage financing in emerging markets and explain how mortgage financing affects positively the economies of emerging countries. It will also show the legal foundations of the real-estate mortgage law and the prerequisites for a successful mortgage financing system. This article intends to define the main challenges that some consider a hindrance to the development of the mortgage market in the Arabian Gulf countries. From this perspective, a brief comparative analysis of mortgage financing will focus on varying laws and regulations that apply to real-estate mortgages in the Gulf region. Implications for the development of the mortgage market in Arabian Gulf countries will be based on challenges in the mortgage market.

Heba Sewilam

Abstract

The post-colonialist academic discourse blames colonialism for the marginalisation of Sharī‘a in the legal systems of Sunnī Muslim-majority countries. However, an analysis of some juristic debates around the Sunnī doctrinal theories of uṣūl al-fiqh and maqāṣid al-sharīʿa exposes few of the theories’ internal problems accounting for the marginalisation. In uṣūl al-fiqh, disputes regarding ijmāʿ and qiyās virtually bring their effectiveness as legal doctrines for positive law legislation to a halt. With regard to maqāṣid al-sharīʿa, an Ašʿarī adherence to a literal reading of the text reduces its potential to produce new Sharī‘a-compliant laws. Such problems render uṣūl al-fiqh and maqāṣid al-sharīʿa ineffective instruments for regulating accelerated legal changes demanded by fast-paced societal and scientific developments and deem the application of Sharīʿa in Sunnī Muslim-majority countries a task neither possible nor even recommended.

Mohammad Nsour

Abstract

This article provides an analysis of outward foreign direct investment (FDI) trends from Turkey in light of the UAE’s interests. The key objective is to present a concise picture of Turkish FDI and of the opportunities within selected sectors in the UAE. Pursuant to this analysis, the article enumerates various challenges the UAE legal system poses to foreign investment. It then offers recommendations for how the UAE can mitigate these challenges without compromising its legal and economic regimes.

Haider Ala Hamoudi

Reyadh Mohamed Seyadi

Abstract

One significant feature of arbitration that distinguishes it from litigation in national courts, is the parties’ freedom to select the arbitrator or members of the arbitral tribunal familiar with the kind of dispute that might arise or already has arisen. In 2012, a new arbitration law was issued in the Kingdom of Saudi Arabia (KSA) inspired by the texts of the Model Law on International Commercial Arbitration. In all its provisions it included the requirement not to violate Sharīʿah law (Islamic legal tradition). However, according to this law, the sole arbitrator or presiding arbitrator must hold a Bachelor of Laws (LLB) or Sharīʿah law degree. This provision is mandatory, and the parties cannot agree otherwise. This article seeks to provide some thoughts on this restriction through an analysis of arbitrator qualifications under Sharīʿah law in order to provide a better understanding of the position adopted by the KSA Arbitration Law.

Emad Abdel Rahim Dahiyat

Abstract

Although e-commerce is growing at a dramatic rate, there are still areas of concern that need to be addressed adequately by the legislation in order to promote trust in e-commerce and remove any barriers to its full development. This paper thus explores the existing legislation in UAE to determine whether or not this legislation gives due attention to consumer protection in an online environment. Furthermore, this paper briefly addresses the issue of what the law ought to be in order to enhance legal certainty as well as maintain the credibility of the Internet as a market place for consumers.

Mahmoud M. Dodeen

Abstract

This study explores Islamic law’s position towards the compensation of natural and juridical persons for moral damage within the scope of contractual liability in view of divergent and unclear legal and judicial opinions in Arab countries. One line of argument makes a distinction in the approach to tort and contractual liability. As a result, courts have been influenced by these opinions. In contrast, other jurists have not taken great pains to reach a different discretion in search of the truth. To enrich this study, to ensure a sound interpretation of the true situation, and in an attempt to draw a closer link between the positions of Islamic law and Latin law, the study provides a comparison between the civil codes of three Arab countries: Palestine, Jordan and Qatar.

Iyad Mohammad Jadalhaq

Abstract

The regulations concerning gross fraud instituted by the United Arab Emirates (UAE) legislature in the UAE Civil Code are derived from provisions put forward by the Ḥanafī school of law. A general rule was put forward, and exceptions thereto were set. A certain remedy for gross fraud was instituted, namely, giving the defrauded party the right to terminate the contract. This article determines the comprehensiveness and adequacy of the legal texts dealing with the impact of gross fraud on contracts in the UAE Civil Code, the methods by which balance could be achieved between the interests of the contracting parties, and the means of protecting the defrauded contractor. Furthermore, shortcomings and defects in the existing legal texts that require amendment and reform are highlighted. This study concludes that the legislative treatment of the impact of gross fraud on contracts is insufficient, and advances possible recommendations.

Ahmad Aljobair

Abstract

This article deals with the role of the UAE Federal National Council (FNC) as a legislative authority. It explains how it differs from other parliaments around the world in terms of composition and the role it plays as a final authoritative legislative power. The FNC has neither the power to legislate nor the right to control laws, although the Constitution allows it to discuss and comment upon draft laws. However, the FNC’s opinion is not binding on the promulgation of the laws. The President may reject the amendments and promulgate the law after it has been sanctioned by the Supreme Council. The Constitution also gives the Council of Ministers the power to promulgate laws in case of necessity and absence of the FNC. These constitutional texts contradict the internal regulations of the FNC which give this Council the right to amend the legal texts of the draft budget.

Mustafa El-Mumin

Abstract

Despite being promulgated in 2014 by the Gulf Cooperation Council (GCC), the Gulf Declaration of Human Rights (GDHR) has received little academic attention. Khalifa Alfadhel is one scholar who has sought to engage with the declaration, citing it as a significant regional document worthy of commendation due to its reconciliation of both Islamic and international notions of human rights, a feat other comparable regional human rights documents have yet to achieve. Furthermore, Alfadhel praises the GDHR as it embodies the GCC’s commitment to human rights and political reform, with the GDHR supplying the foundation for a regional customary law regime. This article questions such claims, arguing that Alfadhel has overlooked unambiguous flaws that contradict the GDHR’s alleged regional promotion of human rights, ultimately undermining its supposed significance. Certainly, this article highlights how the GDHR is a rhetorical document that intrinsically negates the same rights it purports to protect.