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Egyptian and Islamic Law: Selected Essays
In Shariʿa, Justice and Legal Order: Egyptian and Islamic Law: Selected Essays Rudolph Peters discusses in 35 articles practice of both Shariʿa and state law. The principal themes are legal order and the actual application of law both in the judiciaries as well in cultural and political debates. Many of the topics deal with penal law. Although the majority of studies are situated in the Ottoman and, especially, Egyptian period, few of them are of another region or a more recent period, such as in Nigeria or, also, Egypt. The book’s historical studies are mainly based on archival judicial records and are definitively pioneering. Although the selected articles of this book are the fruit of more than forty years of research, most of them have constantly been cited.

Abstract

Observers call upon Islamic financial institutions to move beyond offering merely Sharīʿah-compliant instruments toward offering more Sharīʿah-based ones. But when did these terms come into usage, and why? What precisely do people mean by ‘Sharīʿah-based’? In this article we argue that the term ‘Sharīʿah-compliant’ emerged in the 1990s and allowed Islamic finance institutions to leave behind scandals of the 1980s, presenting Islamic finance anew as a technically rational project grounded in Sharīʿah expertise. In contrast, the call for Sharīʿah-based finance became popular in the 2000s, and especially after the 2008 global financial crisis, which made systemic stability and product transparency pressing concerns. Usages of ‘Sharīʿah-based’ fall into three categories: those that stress separation from conventional finance, those that stress authenticity, and those that stress welfare. This definitional multiplicity is not a problem but rather a starting point for debate and a sign of Islamic finance’s growing maturity as an ethical project.

In: Arab Law Quarterly

Abstract

This article discusses the maritime carrier’s effect on the transfer of ownership between contracting parties to international sales. The discussion initially focuses on the relevant provisions of the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG), and Incoterms 2010 Rules as international instruments. It will also cover the provisions of the Jordanian Civil Code 1976 (JCC) as a domestic statute. The necessity to examine the maritime carrier’s influence on transfer of ownership lies in the impact it can exert on a buyer’s right to acquire ownership that may deprive him of selling the goods in transit. This article will point out the obstacles encountered when determining the timing for transfer of ownership. The study proposes some suggestions through which the role the maritime carrier plays in the transfer of ownership can be recognised and the time when transfer of ownership occurs can be easily determined.

In: Arab Law Quarterly

Abstract

Contrary to its conventional counterpart, which uses interest-based methods of financing, Islamic banks commonly use sale, lease, or partnership modes of financing. The murābaḥah (cost-plus sale) and ijārah muntahiyah bi-t-tamlīk (lease-to-own) products achieve similar end-results, where both products are used as Islamic financial mechanisms for Islamic banks to achieve profits on financed assets, and where the client benefits from the financed asset—leading the client to ultimately own the asset at the end of the financing tenor without limitations (whether releasing the asset as a collateral for a murābaḥah or transferring the title deed to the client at the end of an ‘ijārah muntahiyah bi-t-tamlīk’ contract). Using a qualitative methodology, this article investigates how Islamic banks choose between using murābaḥah or ijārah muntahiyah bi-t-tamlīk when financing a customer. This article includes empirical work by analysing primary and secondary data pertaining to three Islamic banks in the Kingdom of Bahrain.

In: Arab Law Quarterly

Abstract

This article addresses a common conundrum when a government is a party to a Red Book contract, that is governed by Qatari national law: the inter-relationship between national law and the voluntarily agreed-upon contractual terms. This article sets forth a proposal that is to amend two Qatari laws as applicable to delay damages under contracts based upon the FIDIC Red Book where a governmental entity is a party to that contract and the parties have elected Qatar law as governing the contract. The two laws are the Qatari Civil Code (QCC 2004) and the Tendering and Procurement Law (T&P 2015). QCC 2004 applies when the Employer and Contractor are private law persons. T&P 2015 applies when the Employer is the government. Each law contains provisions that conflict with and supersede the delay damages provisions of the Red Book, in each case depriving the contractual parties of their intended result.

In: Arab Law Quarterly

Abstract

Doing business abroad within the framework of commercial agency or distribution agreements presents not only several financial and commercial challenges but also legal ones, raising questions about the applicable law, jurisdiction, and particularly the arbitrability of disputes arising out of commercial agency agreements governed by Jordanian law. The purpose of this article is to highlight selected aspects of Jordanian commercial agency law from the perspective of private international law in Jordan. It aims to discuss the applicable law and jurisdiction pertaining to international commercial agency agreements subject to Law No. 28 of 2001 on Commercial Agents and Intermediaries as a mandatory law. The article highlights the recent different methodological approaches adopted by the Jordanian Court of Cassation in dealing with commercial agency agreements, which can be described as heterogeneous, controversial, and traditional; they are tainted with dogmatic traditions and at odds with the Court’s own grundnorms.

In: Arab Law Quarterly

Abstract

Historically, Iraqi law has followed the Latin approach in the ambit of civil law, while English law is the creator of the ‘common law approach’. This has had an effect on the Iraqi doctrine for the protection of works in the field of intellectual property law. Therefore, Iraqi author rights have followed French law which grants authors many, in particular moral, rights on their works whilst English law restricts the rights of the author in kind of the moral rights. However, both laws grant authors important ‘paternity rights’ that prevent anyone from using a work without first receiving license from the author. Due to its importance in both laws, this article will try to explain paternity rights and its differences in Iraqi and English laws. This article will examine the scope paternity rights under both systems of law.

In: Arab Law Quarterly

Abstract

The Gulf Declaration of Human Rights (GDHR) is a regional human rights document that has largely evaded wide academic discourse. The substantive debate is primarily between Khalifa Alfadhel and the author: Alfadhel praises the GDHR for its attempt at reconciling Islamic values with international human rights law, whilst the author argues the GDHR is an intrinsically flawed and vapid document that does not cement human rights in the Gulf Cooperation Council (GCC). This article seeks to strengthen the author’s argument, focusing on the GDHR’s protection against slavery through a case study of the GCC’s kafala system. Comparative analysis between the GDHR, domestic GCC legislation, Sharīʿah and international human rights standards will plainly show how the GDHR fails in its intended objectives. Ultimately, the article will provide opportunity for further discourse surrounding the GDHR and what steps could be necessary to elevate the document to one of substance.

In: Arab Law Quarterly

Abstract

Financial derivatives such as futures, options and swaps play an important role in the development of financial markets because they can be employed in many ways, notably for hedging, arbitrage and speculation. However, for a variety of reasons, such conventional instruments are considered unlawful under Islamic law and are impermissible in Islamic financial markets. The search for a Sharīʿah-compliant alternative has become a major concern to Islamic financial and legal engineering. Indeed, in this article, we will study the ʿurbūn (earnest money) contract according to Islamic law and positive law in several Muslim countries. Thereafter, we will examine the possibility of substituting the conventional call option contract (Call) by the ʿurbūn contract for hedging market risk, by providing a technical and legal comparison between the two contracts.

In: Arab Law Quarterly

Abstract

This article examines the impact of the United Nations Convention on Contracts for the International Sale of Goods (CISG) (signed 11 April 1980, entered into force 1 January 1988) on Kuwait as a non-Contracting State. By examining the potential application of CISG to countries around the world, it becomes clear that the applicability of this Convention is inevitable. This article identifies and examines the cases where CISG can be applied, according to its rules, and the process by which CISG, as a foreign law, would be applied in Kuwait. As this article shows, this can be achieved through the autonomy of the parties, Kuwaiti conflict-of-laws rules, or through customary law. This article also examines the cases where CISG cannot be applied in Kuwait and the implications of Kuwaiti’s ratification of CISG.

In: Arab Law Quarterly