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

Author

Listed:
  • Ruzian Markom
  • Sharina Pitchay
  • Zinatul Zainol
  • Anita Rahim
  • Rooshida Merican

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’. Copyright Springer Science+Business Media, LLC 2013

Suggested Citation

  • Ruzian Markom & Sharina Pitchay & Zinatul Zainol & Anita Rahim & Rooshida Merican, 2013. "Adjudication of Islamic banking and finance cases in the civil courts of Malaysia," European Journal of Law and Economics, Springer, vol. 36(1), pages 1-34, August.
    • Handle: RePEc:kap:ejlwec:v:36:y:2013:i:1:p:1-34
    DOI: 10.1007/s10657-011-9249-4
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    Citations

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    Cited by:

    1. Ghlamallah, Ezzedine & Alexakis, Christos & Dowling, Michael & Piepenbrink, Anke, 2021. "The topics of Islamic economics and finance research," International Review of Economics & Finance, Elsevier, vol. 75(C), pages 145-160.
    2. Umar A. Oseni & Abideen Adewale & Nor Razinah Binti Mohd Zain, 2016. "Customers' perceptions on the dispute resolution clauses in Islamic finance contracts in Malaysia," Review of Financial Economics, John Wiley & Sons, vol. 31(1), pages 89-98, November.
    3. Oseni, Umar A. & Adewale, Abideen & Mohd Zain, Nor Razinah Binti, 2016. "Customers' perceptions on the dispute resolution clauses in Islamic finance contracts in Malaysia," Review of Financial Economics, Elsevier, vol. 31(C), pages 89-98.

    More about this item

    Keywords

    Adjudication; Islamic banking and finance; Civil courts; Cases; Legal obstacles; Courts approaches; G21; G28; K12; K42;
    All these keywords.

    JEL classification:

    • G21 - Financial Economics - - Financial Institutions and Services - - - Banks; Other Depository Institutions; Micro Finance Institutions; Mortgages
    • G28 - Financial Economics - - Financial Institutions and Services - - - Government Policy and Regulation
    • K12 - Law and Economics - - Basic Areas of Law - - - Contract Law
    • K42 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Illegal Behavior and the Enforcement of Law

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