Adjudication of Islamic banking and finance cases in the civil courts of Malaysia

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13 Citations (Scopus)

Abstract

The adjudication of Islamic banking and finance (IBF) laws in Malaysia is unique given the Malaysian parallel legal systems. Although IBF is a branch of Islamic law, the civil court has the appropriate jurisdiction to decide the cases. This is due to the fact that banking falls under the items 7 and 8 of the Federal List of the Federal Constitution. The trails of decided cases showed that there are problems in resolving IBF cases in the civil courts. This paper aims to discuss the adjudication of Islamic Banking in the civil courts. The authors employed the method of legal documents analysis in analyzing the IBF cases. The analysis highlighted four obstacles in adjudicating IBF in civil courts, namely; inadequacy of existing legal framework, complications of legal documentation, competency of civil court judges and expert evidence. It also analysed the four approaches adopted by the civil courts in deciding IBF cases; the 'parties to be bound by their agreement', the 'strict adherence to civil law', the 'justice and equitable' and the 'looking into the substance'.

Original languageEnglish
Pages (from-to)1-34
Number of pages34
JournalEuropean Journal of Law and Economics
Volume36
Issue number1
DOIs
Publication statusPublished - Aug 2013

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civil court
banking
Malaysia
finance
civil law
Law
Islamic banking
Civil courts
Islamic finance
document analysis
legal system
documentation
jurisdiction
constitution
justice
expert

Keywords

  • Adjudication
  • Cases
  • Civil courts
  • Courts approaches
  • Islamic banking and finance
  • Legal obstacles

ASJC Scopus subject areas

  • Law
  • Economics and Econometrics
  • Business and International Management

Cite this

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title = "Adjudication of Islamic banking and finance cases in the civil courts of Malaysia",
abstract = "The adjudication of Islamic banking and finance (IBF) laws in Malaysia is unique given the Malaysian parallel legal systems. Although IBF is a branch of Islamic law, the civil court has the appropriate jurisdiction to decide the cases. This is due to the fact that banking falls under the items 7 and 8 of the Federal List of the Federal Constitution. The trails of decided cases showed that there are problems in resolving IBF cases in the civil courts. This paper aims to discuss the adjudication of Islamic Banking in the civil courts. The authors employed the method of legal documents analysis in analyzing the IBF cases. The analysis highlighted four obstacles in adjudicating IBF in civil courts, namely; inadequacy of existing legal framework, complications of legal documentation, competency of civil court judges and expert evidence. It also analysed the four approaches adopted by the civil courts in deciding IBF cases; the 'parties to be bound by their agreement', the 'strict adherence to civil law', the 'justice and equitable' and the 'looking into the substance'.",
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author = "Ruzian Markom and Pitchay, {Sharina Ali} and Zainol, {Zinatul Ashiqin} and {Abdul Rahim}, Anita and {Abdul Rahim Merican}, {Rooshida Merican}",
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AU - Markom, Ruzian

AU - Pitchay, Sharina Ali

AU - Zainol, Zinatul Ashiqin

AU - Abdul Rahim, Anita

AU - Abdul Rahim Merican, Rooshida Merican

PY - 2013/8

Y1 - 2013/8

N2 - The adjudication of Islamic banking and finance (IBF) laws in Malaysia is unique given the Malaysian parallel legal systems. Although IBF is a branch of Islamic law, the civil court has the appropriate jurisdiction to decide the cases. This is due to the fact that banking falls under the items 7 and 8 of the Federal List of the Federal Constitution. The trails of decided cases showed that there are problems in resolving IBF cases in the civil courts. This paper aims to discuss the adjudication of Islamic Banking in the civil courts. The authors employed the method of legal documents analysis in analyzing the IBF cases. The analysis highlighted four obstacles in adjudicating IBF in civil courts, namely; inadequacy of existing legal framework, complications of legal documentation, competency of civil court judges and expert evidence. It also analysed the four approaches adopted by the civil courts in deciding IBF cases; the 'parties to be bound by their agreement', the 'strict adherence to civil law', the 'justice and equitable' and the 'looking into the substance'.

AB - The adjudication of Islamic banking and finance (IBF) laws in Malaysia is unique given the Malaysian parallel legal systems. Although IBF is a branch of Islamic law, the civil court has the appropriate jurisdiction to decide the cases. This is due to the fact that banking falls under the items 7 and 8 of the Federal List of the Federal Constitution. The trails of decided cases showed that there are problems in resolving IBF cases in the civil courts. This paper aims to discuss the adjudication of Islamic Banking in the civil courts. The authors employed the method of legal documents analysis in analyzing the IBF cases. The analysis highlighted four obstacles in adjudicating IBF in civil courts, namely; inadequacy of existing legal framework, complications of legal documentation, competency of civil court judges and expert evidence. It also analysed the four approaches adopted by the civil courts in deciding IBF cases; the 'parties to be bound by their agreement', the 'strict adherence to civil law', the 'justice and equitable' and the 'looking into the substance'.

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KW - Courts approaches

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KW - Legal obstacles

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