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Unpublished Paper
Islamic Theory of Conflict of Commercial Law: A Proposition
ExpressO (2014)
  • Anowar Zahid
Abstract

The parties to an international commercial/financial contract may choose a single law or a combination of law like English law and Islamic law to settle their dispute that may arise therefrom. At the same time, they may choose a forum (law court or arbitration tribunal) belonging to an Islamic jurisdiction. Such a choice of law and forum deserve a theoretical enquiry from Islamic perspective since it gives rise two important issues. First, if the choice is a single secular law and it conflicts with Shari'ah law in full or in part, then how the forum will reconcile the conflicts. It has to handle again the same issue where the choice is a combined one. Second, if the applicable law is solely Shari’ah, then the forum has to decide which school's (madhhab) fiqh (jurisprudence) will apply. This paper is a purely theoretical attempt to answer these two questions regardless of what is in practice in different Muslim jurisdictions, which may be addressed in a separate paper.

Keywords
  • Commercial/Financial Contract,
  • Choice of Law,
  • Choice of Forum,
  • Conflict of Law/Madhab
Publication Date
August 31, 2014
Citation Information
Anowar Zahid. "Islamic Theory of Conflict of Commercial Law: A Proposition" ExpressO (2014)
Available at: http://works.bepress.com/anowar_zahid/1/