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Abstract

This study deals with the effect of ġarar (uncertainty) and jurisprudential necessity on the Sharīʿah permissibility of commercial insurance contracts, using an analytical and critical approach. The study clarifies the meaning of ġarar, and its effect on contracts, by verifying the effective cause of ġarar, determining its degree, and ascertaining the rationale for its prohibition. The criterion for differentiating between trivial and substantial ġarar is discussed, as well as the views of jurists who permit insurance contracts through a holistic view approach, contrary to the traditional view. The study distinguishes between ḥāǧah (necessity) in the jurisprudential sense, general necessity as expressed in the objectives of the lawgiver, from the concept of ḍarūrah (essentiality). Furthermore, the study highlights an important jurisprudential rule that has direct effect on the permissibility of insurance contracts, i.e., ‘what is forbidden for the prevention of the means (of corruption) is permitted for the preponderant interest’.

In: Arab Law Quarterly

Abstract

For the industrial development of national economic industries in any given country, designs for products and goods need to be created and developed. In 2020, Qatar issued a new law on Industrial Designs and Models (Law No. 10 of 2020) as a means of enhancing and strengthening Intellectual Property Rights and their protection, which is regarded as a part of Qatar’s National Vision 2030. In this article, the provisions of the new law will be critically examined. The discussion starts by highlighting the definition of, and the requirements for, protection. The rights granted to the owner of the design will also be explored. A comparison between the Qatari provisions and those from a number of other countries will be made throughout. The main purpose of this paper is to provide a comprehensive analysis of the new law on industrial designs, taking into consideration the legal development of those jurisdictions.

In: Arab Law Quarterly

Abstract

This article examines the constitutionality of the Egyptian Supreme Constitutional Court’s (hereinafter SCC) authority to overrule its prior precedents. The authors argue, contrary to the assertions of the predominant conservative approach in Egypt, that bestowing the SCC with such an overruling power neither violates the Constitution nor undermines fundamental legal principles such as the principles of equality, legal certainty, or the justified expectations of litigants. Indeed, we make the argument that the Court’s ability to overrule its prior precedents seems to be the most conceivable and plausible way to correct the Court’s past mistakes or inaccuracies. We finally claim that endowing the court with such overruling power enhances the constitutional protection of fundamental rights and freedoms and strengthens the Court’s credibility not only via other public authorities, but also via public opinion.

In: Arab Law Quarterly

Abstract

This article is part of the Special Issue “Parliaments in the Middle East and North Africa: A Struggle for Relevance.” While legislators in democratic settings have the electorate as their main principal, mps in semi- and nondemocratic settings need to serve two principals to remain in office: the regime and the active segment of the electorate. This dichotymy sometimes requires particular skills in parliamentary behavior. For the case of Egypt, we investigate how mps strike a balance between regime support and representing their constituents up to an extent that does not endanger their chances for re-election. A content analysis of session scripts of the Egyptian parliament in 2016 was conducted to examine how mps walk this – traditionally understudied – thin line. Our findings indicate that representation gets reduced to “descriptive representation,” i.e. a representation that puts more emphasis on representing local constituents and demographic segments, like Copts and women, that mps are presumably elected to represent. We therefore show that mps fulfill the important tasks of citizens representation even in semi- and nondemocratic settings.

In: Middle East Law and Governance

Abstract

Unlike civil law jurisdictions, the good faith principle in Islamic law is a notion not directly discussed, the foundations of which this article seeks to root out through an analysis of related, but distinct, Islamic law doctrines. As such, since Islamic law is a significant source of codification and adjudication in many Islamic countries, the perspective of some MENA countries as well as Iran towards good faith is also explored. In practice, courts and tribunals could invoke the good faith principle where Islamic law or Islamic-based laws govern the contractual relationships. This article contends that good faith permeates every sphere of a contractual relationship, particularly negotiation under Islamic law.

In: Arab Law Quarterly

Abstract

Unjust enrichment is considered one source of obligations, which stands in contrast to harmful acts as another source of obligation in the Jordanian Civil Code (JCC). The Unjust Enrichment Rule has developed historically from Roman law, through Islamic jurisprudence, then French law and jurisprudence to modern laws, such as that in Egypt influenced by French law. All these laws have recognised the Unjust Enrichment Rule as an independent source of obligation. Although the JCC was influenced by Islamic jurisprudence, Arab laws, such as the Egyptian Civil Code, and foreign-influenced Arab laws, its features distinguish it from other laws, either in terms of naming the source or the details related to its legal provisions. JCC’s special features need to be highlighted, defined and evaluated for comparison with other laws, i.e., proving beneficial when enacting a new JCC or defining it as unique rather than a copy of other precedent Arab laws.

In: Arab Law Quarterly
Author: Hussein M. Azmy

Abstract

This article examines the recent reformation of the foreign investment regulatory environment that was introduced by the Foreign Capital Investment Law of Oman (Royal Decree No. 51/2019) and its Executive Regulation (Ministerial Decision No. 72/2020) with the aim of boosting foreign direct investment (FDI) in Oman. This examination focuses on the texts of the current Foreign Capital Investment Law and its Executive Regulation and analyses the provisions that, in the author’s view, will have a direct impact on the foreign investment sector in Oman. Furthermore, these provisions are contrasted with their counterparts in the former Foreign Capital Investment Law (Royal Decree No. 102/1994) to highlight their strengths and weaknesses. Based on this analysis, the article proposes a set of recommendations to address a number of issues with the current foreign investment regulatory framework with the aim of achieving regulatory clarity and enhancement concerning the framework’s scope of application.

In: Arab Law Quarterly

Abstract

This article explores the disengagement of members from Egypt’s Muslim Brotherhood. Following both the 2011 uprising and the 2013 coup, increasing disenchantment with the group’s ideology and political project have led many members to reconsider their commitment to, and membership in, the Brotherhood. While scholarship examining the Brotherhood’s processes of recruitment and forming of collective identity is burgeoning, few works have assessed members’ disengagement from the movement and abandonment of its ideology, or how former members make sense of their “ex” identity. Based on rich, original material and extensive interviews with former Brotherhood members in Egypt, Turkey, the UK, and Qatar, this article investigates how former members seek new meanings and identities. Adopting a processual and discursive perspective on disengagement from the Brotherhood, we identify disengagement as consisting of distinct ideological, political, and affective processes. These processes shape individuals’ strategies for exiting the Brotherhood and forming their new identities as ex-members.

In: Middle East Law and Governance
In: Middle East Law and Governance
Author: Mohammad Yaghi

Abstract

Using the case studies of the 2012 Constitution, the call of al-Jabha al-Salafiyya for the Revolution of the Muslim’s Youth (rmy) and the Salafi’s statement of Nida Ard al-Kinana, this article provides empirical evidence that the Salafists have a radicalization effect on Egypt’s Muslim Brotherhood when they compete or cooperate with each other. By “radicalization effect,” the article means pushing the Brotherhood to build less inclusive institutions and/or pulling them toward the justification of the use of violence in religious terms in their confrontation with al-Sisi’s regime. Methodologically, the article relies on the Salafist and the Brotherhood statements as well as on the work of other scholars.

In: Middle East Law and Governance