Beyond the Civil - Common Law Divide: Islamic Shari'a Principles in Shari'a Based International Arbitration Disputes

Beyond the Civil - Common Law Divide: Islamic Shari'a Principles in Shari'a Based International Arbitration Disputes

This is a past event

The liberalisation of financial regulation, the globalisation of financial markets, the proliferation of innovative products and the technological advancement have transformed conventional banking and contributed to the growth of Islamic finance. The growth in Islamic finance markets and products has accelerated following the global financial crisis in 2008. With more than 300 Islamic financial institutions worldwide, including “Islamic windows” of conventional banks, the Islamic finance industry has become truly global with well-established regional hubs in the GCC states, African jurisdictions including Algeria, Egypt, Gambia, Kenya, Mauritania, Mauritius, Nigeria, South Africa, Sudan, Tanzania, Tunisia and Zambia, and Asian jurisdictions including Malaysia, Indonesia and Pakistan.

With this global growth in the Islamic finance industry, the conclusion of Islamic finance transactions, and the offering of Islamic finance products in non-Islamic states across the globe, intricate legal questions and applicable law issues have become exceedingly pertinent. It is in this context that the author proposes to tackle the interplay between Islamic Shari’a principles and the applicable norms governing Shari’a-based contracts and disputes.   

That said, the speaker proposes to address, inter alia, the following issues: (i) the sources of Shari’a-based principles and the concepts of ‘maqasid Shariyyiah’ and ‘ijtihad’ to distill the pertinent legal principles from Islamic Shari’a; (ii) the validity, specificities and ramifications of the choice of Islamic Shari’a as a governing law of the transaction in whole or in part (with emphasis of the exclusive application of Shari’a principles, the combined application of Shari’a principles with non-Shari’a based laws in the context of the tronc commun doctrine, and the applicability of depeŇ«age in the context of Shari’a-based contracts and disputes); (iii) the overriding mandatory application of certain Islamic Shari’a principles (governing riba, gharar, jahala, etc.) as part of the public policy considerations that may apply to transactions or obligations governed by non-Shari’a based laws; and (iv) the application of Shari’a principles by courts and arbitral tribunals in international cases, and whether any notable trends can be traced and analysed.

Prof. Dr. Mohamed S. Abdel Wahab
Hosted by
Centre of Private International Law
Online Event