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Coronavirus Pandemic and Contractual Justice: Legal Solutions and Realistic Approaches: A Study in Qatari Civil Law and Comparative Practices 冠状病毒大流行与合同正义：法律解决方案和现实途径——卡塔尔民法与比较实践研究
IF 0.3
Arab Law Quarterly Pub Date : 2020-12-07 DOI: 10.1163/15730255-BJA10070
A. Abdullah
{"title":"Coronavirus Pandemic and Contractual Justice: Legal Solutions and Realistic Approaches: A Study in Qatari Civil Law and Comparative Practices","authors":"A. Abdullah","doi":"10.1163/15730255-BJA10070","DOIUrl":"https://doi.org/10.1163/15730255-BJA10070","url":null,"abstract":"\u0000 This article examines challenges and proposes legal solutions for the enforcement of contracts especially after the transformation of the economy following Covid-19 and related governmental measures that have swept throughout the world since December 2019. Maximising the role of the judge and increasing the contractual parties’ involvement in phases of contractual disputes constitute the core of this research. This article argues for strengthening the contractual guarantees by advocating for the use of the two contract doctrines of force majeure that normally lead to termination of contractual obligations, and changed circumstances that may trigger intervention of the judge to lift the economic burden of the debtor and reach a fair solution. This article also argues for adopting a more flexible approach to the application of the doctrine of change of circumstances during the performance of the contract that not necessarily relies on this traditional distinction between force majeure and hardship.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49469696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Need to Re-examine the Route of Pre-emption Law in the Sudan: A Critical Analysis 重新审视苏丹优先购买法路径的必要性:一个批判性分析
IF 0.3
Arab Law Quarterly Pub Date : 2020-11-09 DOI: 10.1163/15730255-bja10063
H. Ismail
{"title":"The Need to Re-examine the Route of Pre-emption Law in the Sudan: A Critical Analysis","authors":"H. Ismail","doi":"10.1163/15730255-bja10063","DOIUrl":"https://doi.org/10.1163/15730255-bja10063","url":null,"abstract":"\u0000This article examines the concept of pre-emption rights in the Sudan, in particular, the origin, nature and domain of the principle by making four key arguments. Firstly, it argues that, although the doctrine is maintained and applied as a part of Muslim law, it is also applied between Muslims and non-Muslims as equity and good conscience rule rather than as a part of Muslim personal law. Secondly, it presupposes that the doctrine of pre-emption has its roots in Islamic law, although it is not ‘exclusive’ to Islamic systems. Thirdly, it suggests that the tendency to adopt Islamic theory as a sole reason for implementing the doctrine, sometimes led to judicial debates; for example, the question arose to whether this right existed in favour of a lease holder. Finally, Islamic theory leaves the question open as to whether pre-emptive rights exist in the domain of movable property.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"1 1","pages":"1-27"},"PeriodicalIF":0.3,"publicationDate":"2020-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41391750","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Singapore Convention on Mediation: Should Iran Follow the Position of Qatar? 新加坡调解公约：伊朗是否应该遵循卡塔尔的立场？
IF 0.3
Arab Law Quarterly Pub Date : 2020-11-06 DOI: 10.1163/15730255-bja10044
A. Abrishami
{"title":"Singapore Convention on Mediation: Should Iran Follow the Position of Qatar?","authors":"A. Abrishami","doi":"10.1163/15730255-bja10044","DOIUrl":"https://doi.org/10.1163/15730255-bja10044","url":null,"abstract":"\u0000Following the recent accession of Qatar, the United Nation Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation) will come into force on 12 September 2020. As a Signatory State, Iran is assessing whether to ratify the Singapore Convention. This article illustrates and discusses the challenges and opportunities that Iran and Qatar may face in light of the Singapore Convention. The main focus of this article is on problems facing Iran in relation to the possible ratification of the Singapore Convention. Finally, it determines whether Iran would benefit from the possible implementation. It concludes that, while Qatar may benefit from joining the Singapore Convention, the possible ratification of the Convention in Iran will lead to more challenges than opportunities. For the purpose of developing international commercial mediation in Iran, the UNCITRAL Model Law on Mediation will be an appropriate alternative.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"1 1","pages":"1-36"},"PeriodicalIF":0.3,"publicationDate":"2020-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15730255-bja10044","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46473019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Trafficked Refugees: The Jordanian Efforts to Address this Issue 被贩运的难民:约旦解决这一问题的努力
IF 0.3
Arab Law Quarterly Pub Date : 2020-10-23 DOI: 10.1163/15730255-bja10016
Muath Al-Zoubi
{"title":"Trafficked Refugees: The Jordanian Efforts to Address this Issue","authors":"Muath Al-Zoubi","doi":"10.1163/15730255-bja10016","DOIUrl":"https://doi.org/10.1163/15730255-bja10016","url":null,"abstract":"\u0000Recently, the world has been hit by a massive wave of refugees, precipitating the global refugee crisis, which is a pressing issue of global concern. Consequently, addressing this crisis needs innovative approaches. The aim of this article is to establish a relatively new initiative through combining two topics: the global refugee crisis and the crime of trafficking in persons. Accordingly, by combining these two topics, this article will try to find a new initiative that addresses a certain category of trafficked victims, namely trafficked refugees. By analysing the existing primary and secondary sources on relevant issues in relation to the crime of trafficking in persons and the issue of refugees, this article concludes that, despite the difficulties of addressing these issues and the current attempts in Jordan, it is still significant to identify trafficked victims among refugees as this might result in them receiving particular attention.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":"1-22"},"PeriodicalIF":0.3,"publicationDate":"2020-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43065699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
An Analysis of Jordanian Jurisdiction as a Seat for International Arbitration 约旦作为国际仲裁所在地的管辖权分析
IF 0.3
Arab Law Quarterly Pub Date : 2020-10-22 DOI: 10.1163/15730255-bja10059
Zaid Aladwan, Mutaz M. Aladwan
{"title":"An Analysis of Jordanian Jurisdiction as a Seat for International Arbitration","authors":"Zaid Aladwan, Mutaz M. Aladwan","doi":"10.1163/15730255-bja10059","DOIUrl":"https://doi.org/10.1163/15730255-bja10059","url":null,"abstract":"\u0000Arbitration is the best method to resolve a dispute, due to the flexibility in its mechanism and issuing of a final judgment, known as an ‘award’. The winning party usually seeks to apply that award in the state where the assets of the losing party exist. In this regard, the New York Convention 1958 guarantees that the award is enforceable in the state where the winning party sought to apply. Jordan is party to the Convention; it has regulated its own arbitration law and has adopted the UNCITRAL Model Law 1985. However, not all provisions were adopted where specific provisions in Jordanian law relating to certain matters differed from the Model Law provisions. These differences may positively or adversely affect the arbitration procedure in Jordan.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"1 1","pages":"1-16"},"PeriodicalIF":0.3,"publicationDate":"2020-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49364547","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Introduction: Islamic Finance and Contemporary Challenges 导论:伊斯兰金融与当代挑战
IF 0.3
Arab Law Quarterly Pub Date : 2020-10-22 DOI: 10.1163/15730255-bja10067
M. Hassan
{"title":"Introduction: Islamic Finance and Contemporary Challenges","authors":"M. Hassan","doi":"10.1163/15730255-bja10067","DOIUrl":"https://doi.org/10.1163/15730255-bja10067","url":null,"abstract":"Islamic finance is a concept that, irrespective of one’s religious convictions, has gained momentum and been accepted around the world today. Its development and resilience, in light of the recent financial crises and on-going unprecedented pandemic, has not only confirmed its practical benefits but also untapped its potential. However, it is also clear that the numerous challenges which it still faces are reasons why Islamic finance has yet to enjoy the benefit of its full potential. Understanding the nature of such challenges must be the first step towards their resolve, as it would be impossible to prescribe an appropriate medication without first diagnosing the disease. In this regard, we are strongly confident that the ongoing development of Islamic finance can be facilitated via further academic research and the publication of such findings.1 Understanding its historical context is important to resolve Islamic finance challenges. The classical notion that Islamic finance is limited to Islamic commercial finance only needs to be both broadened and institutionalised by accepting that Islamic finance indeed has two branches: namely, Islamic commercial finance as well as Islamic social finance. In this way, it will be possible to achieve financial inclusion without marginalising any segment of the population on the grounds that they are ‘unbankable’. The word ‘unbankable’ would have no significance if both Islamic commercial finance and Islamic social finance could be housed under one roof. The ways in which to achieve this goal need to be researched and implemented. Moreover, in this modern era, Islamic finance cannot operate without technology. Investment in technology is not only important in itself, but we also need to understand the ways in which technology and Islamic finance can be integrated to use the available resources in the best possible manner. Furthermore, there is also a need to redefine Islamic finance in light of maqāṣid al-sharīʿah, or the objectives of","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15730255-bja10067","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47917489","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Interest and Banks in Saudi Arabia: A Dilemma 沙特阿拉伯的利息与银行：困境
IF 0.3
Arab Law Quarterly Pub Date : 2020-10-22 DOI: 10.1163/15730255-bja10058
S. Alamer
{"title":"Interest and Banks in Saudi Arabia: A Dilemma","authors":"S. Alamer","doi":"10.1163/15730255-bja10058","DOIUrl":"https://doi.org/10.1163/15730255-bja10058","url":null,"abstract":"\u0000The banking system in Saudi Arabia faces legal issues with Sharīʿah compliance. Despite the fact that Islamic law is the main drive of the country’s legal system, Islamic banking is not well supported in the banking regulations and it may encounter legal obstacles in applying some Islamic financial mechanisms. On the other hand, conventional banking is not free of legal hurdles as it is challenged by the Islamic judiciary system in the country where interest-based loans are not enforced. These cases create a dilemma where the banking system in the country has to take a clearer legal position toward interest and Islamic banking.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"1 1","pages":"1-37"},"PeriodicalIF":0.3,"publicationDate":"2020-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44350980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Different Structure, Neither Debt nor Equity: What Should Be the Approaches for Restructuring Ṣukūk (Islamic Bonds) Default? 不同的结构，既不是债务也不是股权:重组的方法应该是什么Ṣukūk(伊斯兰债券)违约?
IF 0.3
Arab Law Quarterly Pub Date : 2020-10-22 DOI: 10.1163/15730255-bja10068
Rafisah Mat Radzi
{"title":"Different Structure, Neither Debt nor Equity: What Should Be the Approaches for Restructuring Ṣukūk (Islamic Bonds) Default?","authors":"Rafisah Mat Radzi","doi":"10.1163/15730255-bja10068","DOIUrl":"https://doi.org/10.1163/15730255-bja10068","url":null,"abstract":"\u0000 This study discusses the issues of ṣukūk (Islamic bonds) default surrounding its transaction structures and potential for restructuring the default. By explaining the basic concept of ṣukūk structure, this study further provides a classification of ṣukūk from the perspectives of the standard-setting bodies and credit-rating agencies. Since the structures that underpin ṣukūk vary and technically ṣukūk is neither debt nor equity, this study provides the potential restructuring of ṣukūk in cases of default. The contingent approaches such as extending maturity, haircut and debt-equity swap are based on the classification of ṣukūk structures and require a case-by-case approach.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"35 1","pages":"190-211"},"PeriodicalIF":0.3,"publicationDate":"2020-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15730255-bja10068","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44088361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
An Analysis of the Enforcement of Foreign Arbitration Awards in Palestine: Realities, Drawbacks, and Prospects 外国仲裁裁决在巴勒斯坦执行情况分析：现状、不足与展望
IF 0.3
Arab Law Quarterly Pub Date : 2020-10-07 DOI: 10.1163/15730255-bja10062
Mohammad Adeb Abu Shehab
{"title":"An Analysis of the Enforcement of Foreign Arbitration Awards in Palestine: Realities, Drawbacks, and Prospects","authors":"Mohammad Adeb Abu Shehab","doi":"10.1163/15730255-bja10062","DOIUrl":"https://doi.org/10.1163/15730255-bja10062","url":null,"abstract":"\u0000This article highlights the gaps and difficulties that face the enforcement of foreign arbitration awards in Palestinian courts. In addition, it constructs recommendations for legal and judicial approaches that the Palestinian Authority should adopt to create a ‘pro-arbitration’ system. The article first provides a general analysis of the regulatory deficiencies in the enforcement of foreign arbitration awards, which include the inapplicability of the New York Convention, the existence of the reciprocity principle as a condition of enforcement, and the lack of presumptive obligation of recognising the validity of arbitration awards in Palestine. Afterward, the article focuses on the procedural level of enforcing foreign arbitration awards. It addresses difficulties that face the award-creditor when attempting to enforce the award through the competent court, as well as the Palestinian courts’ approach when reviewing the exequatur, and how this attitude affects the granting enforcement.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15730255-bja10062","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48615310","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Applicability of the 2017 FIDIC Red Book in Civil Law Jurisdictions 2017年FIDIC红皮书在民法司法管辖区的适用性
IF 0.3
Arab Law Quarterly Pub Date : 2020-10-07 DOI: 10.1163/15730255-bja10065
Omar Hisham Al-Hyari
{"title":"Applicability of the 2017 FIDIC Red Book in Civil Law Jurisdictions","authors":"Omar Hisham Al-Hyari","doi":"10.1163/15730255-bja10065","DOIUrl":"https://doi.org/10.1163/15730255-bja10065","url":null,"abstract":"\u0000In 2017, the FIDIC launched a new edition of its Red Book—a recommended construction-related contract for building and engineering works designed by the employer. The roots of this book were influenced by the common law legal system, whereas many countries follow the civil law legal system. Amongst the latter countries is the United Arab Emirates, which has attracted construction parties from all over the world. Those who wish to use the Red Book amongst such parties should be acquainted with the local limitations on its applicability. Such acquaintance can provide them with a proper understanding of their rights and obligations. This article discusses these limitations using the doctrinal research method, which included, inter alia, an examination of all relevant decisions by local higher courts during the 2009-2019 period. The discussion shows that such limitations can be confronted owing to conflicts with local judicial jurisprudence and/or mandatory statutory provisions.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"1 1","pages":"1-20"},"PeriodicalIF":0.3,"publicationDate":"2020-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15730255-bja10065","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46210405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
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