Pub Date : 2022-12-30DOI: 10.31436/iiumlj.v30i2.742
A. Hamid
According to the principle that the land dominates the sea, the land is always the basis for any claim of maritime entitlements. Without a land with a coastline or coastal front under its sovereignty, no state can claim any maritime entitlement. The land here includes not only the continental mainland but also islands which may generate the same maritime entitlements. Nonetheless, certain claimants of the South China Sea have rejected or tried to bend the principle in furtherance of their respective claims. The main objective of the present paper, therefore, is to assess the status of the principle as customary international law and its application to the nine-dash-line claim of China and other claims based on maritime features such as atolls, coral reefs, shoals, and the like. The paper reviews the decisions of the international courts and tribunals on one hand and analyses the relevant provisions of the UNCLOS on the other. The paper also applies interpretative tools to reaffirm the meaning of Article 121 of the UNCLOS: the regime of islands. The paper concludes that the claim of historic rights in the nine-dash-line is not squarely in accord with the principle and that most of the claims on the South China Sea that are based on artificially built structures and land reclamation defeat the letter and spirit of the regime of islands, which is a manifestation of the principle that the land dominates the sea.
{"title":"THE PRINCIPLE THAT THE LAND DOMINATES THE SEA IN THE CONTEXT OF SOUTH CHINA SEA DISPUTES: A CRITICAL APPRAISAL","authors":"A. Hamid","doi":"10.31436/iiumlj.v30i2.742","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.742","url":null,"abstract":"According to the principle that the land dominates the sea, the land is always the basis for any claim of maritime entitlements. Without a land with a coastline or coastal front under its sovereignty, no state can claim any maritime entitlement. The land here includes not only the continental mainland but also islands which may generate the same maritime entitlements. Nonetheless, certain claimants of the South China Sea have rejected or tried to bend the principle in furtherance of their respective claims. The main objective of the present paper, therefore, is to assess the status of the principle as customary international law and its application to the nine-dash-line claim of China and other claims based on maritime features such as atolls, coral reefs, shoals, and the like. The paper reviews the decisions of the international courts and tribunals on one hand and analyses the relevant provisions of the UNCLOS on the other. The paper also applies interpretative tools to reaffirm the meaning of Article 121 of the UNCLOS: the regime of islands. The paper concludes that the claim of historic rights in the nine-dash-line is not squarely in accord with the principle and that most of the claims on the South China Sea that are based on artificially built structures and land reclamation defeat the letter and spirit of the regime of islands, which is a manifestation of the principle that the land dominates the sea.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47975040","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}
Pub Date : 2022-12-30DOI: 10.31436/iiumlj.v30i2.750
M. H. Mohd Kamal
The rule of law means the government must operate based on the principles of law. The rule of law is significant for good governance and sustainable development. For this reason, all States need to improve this aspect in their governments. Muslim States may need motivation from the religion itself, and in order to cater to this need, this article discusses the rule of law based on the Islamic sources of reference, including verses of the Qur’ān, the practice and saying of Prophet Muḥammad (s.a.w.), and the practice of his Rightly Guided Caliphs. This article finds that the idea of the rule of law is embedded in Islam, though some of its provisions on fundamental rights may not be universally acceptable.
{"title":"AN ISLAMIC PERSPECTIVE ON THE RULE OF LAW","authors":"M. H. Mohd Kamal","doi":"10.31436/iiumlj.v30i2.750","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.750","url":null,"abstract":"The rule of law means the government must operate based on the principles of law. The rule of law is significant for good governance and sustainable development. For this reason, all States need to improve this aspect in their governments. Muslim States may need motivation from the religion itself, and in order to cater to this need, this article discusses the rule of law based on the Islamic sources of reference, including verses of the Qur’ān, the practice and saying of Prophet Muḥammad (s.a.w.), and the practice of his Rightly Guided Caliphs. This article finds that the idea of the rule of law is embedded in Islam, though some of its provisions on fundamental rights may not be universally acceptable.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48042594","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}
Pub Date : 2022-12-30DOI: 10.31436/iiumlj.v30i2.754
Maizatun Mustafa, Husna Fauzi
The Coronavirus pandemic (COVID-19) which has globally impacted the social ecosystem is a combination of public health and environmental crises. Amidst the challenges faced in dealing with the consequences of the crises, the pandemic has unintendedly revealed the significance of the current environmental law system to protect human health from pollution. The pandemic has also heightened the realisation that environmental threats are driven by human activities. Consequently, COVID-19 has underscored the need of securing safe and clean surroundings and has emphasised the importance of having measures to protect human health. For Malaysia, strategies aiming at environmental protection could be found within the provisions of the Environmental Quality Act 1974 (EQA). Using the library-based research methodology on primary and secondary sources of law, this paper seeks to examine the scope of the EQA on public health protection and pollution control. Against the backdrop of sustainability, the research concludes that the interlinkages of environmental conservation and public health protection mean that the EQA is the most relevant law to attain these two interrelated objectives. It is submitted that COVID-19 has re-emphasised the importance of environmental law within the realm of health protection, which is in turn essential for the sustainable development agenda.
{"title":"EMPHASISING THE ROLE OF ENVIRONMENTAL LAW IN POLLUTION CONTROL TOWARD PUBLIC HEALTH PROTECTIONS","authors":"Maizatun Mustafa, Husna Fauzi","doi":"10.31436/iiumlj.v30i2.754","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.754","url":null,"abstract":"The Coronavirus pandemic (COVID-19) which has globally impacted the social ecosystem is a combination of public health and environmental crises. Amidst the challenges faced in dealing with the consequences of the crises, the pandemic has unintendedly revealed the significance of the current environmental law system to protect human health from pollution. The pandemic has also heightened the realisation that environmental threats are driven by human activities. Consequently, COVID-19 has underscored the need of securing safe and clean surroundings and has emphasised the importance of having measures to protect human health. For Malaysia, strategies aiming at environmental protection could be found within the provisions of the Environmental Quality Act 1974 (EQA). Using the library-based research methodology on primary and secondary sources of law, this paper seeks to examine the scope of the EQA on public health protection and pollution control. Against the backdrop of sustainability, the research concludes that the interlinkages of environmental conservation and public health protection mean that the EQA is the most relevant law to attain these two interrelated objectives. It is submitted that COVID-19 has re-emphasised the importance of environmental law within the realm of health protection, which is in turn essential for the sustainable development agenda.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41641825","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}
Pub Date : 2022-12-30DOI: 10.31436/iiumlj.v30i2.735
Hamza A. K. Salman, Shahrul Mizan bin Ismail, Rohaida Nordin
Recently, issues related to Palestinian refugees have been diminishing in support due to multiple attempts made by the United States and Israel, which include measures to restrict the activities of the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA). These attempts escalated when former US President Donald Trump announced a complete suspension of funding for the UNRWA in 2018, plunging the Agency into an unusual financial crisis that harmed the assistance to refugees in its operation areas. However, the current US President Joe Biden announced his intention to resume funding for the UNRWA and, in July 2021, signed a cooperation framework known as "framework agreement" but its terms and details were widely rejected by the Palestinians and the general public because of political and security reasons. According to the Agreement, individuals receiving military training under the UNRWA programmes are not eligible for UNRWA health or educational assistance. The framework agreement between the US and the UNRWA tries to change UNRWA's operating mandate without the authorisation of the United Nations General Assembly. Therefore, this article follows a doctrinal analytical approach to both the framework agreement and the UNRWA's operational mandate. It also critically appraises this Agreement in light of international humanitarian law and verifies its impact on the human rights of both beneficiaries and UNRWA workers, including rights to education and freedom of speech. This article concludes that the Agreement violates the norms of public international law by switching the Agency's missions and avoiding the need for an important decision-making process.
{"title":"A CRITICAL APPRAISAL OF THE UNRWA-USA FRAMEWORK FOR COOPERATION (2021-2022) REGARDING PALESTINIAN REFUGEES","authors":"Hamza A. K. Salman, Shahrul Mizan bin Ismail, Rohaida Nordin","doi":"10.31436/iiumlj.v30i2.735","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.735","url":null,"abstract":"Recently, issues related to Palestinian refugees have been diminishing in support due to multiple attempts made by the United States and Israel, which include measures to restrict the activities of the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA). These attempts escalated when former US President Donald Trump announced a complete suspension of funding for the UNRWA in 2018, plunging the Agency into an unusual financial crisis that harmed the assistance to refugees in its operation areas. However, the current US President Joe Biden announced his intention to resume funding for the UNRWA and, in July 2021, signed a cooperation framework known as \"framework agreement\" but its terms and details were widely rejected by the Palestinians and the general public because of political and security reasons. According to the Agreement, individuals receiving military training under the UNRWA programmes are not eligible for UNRWA health or educational assistance. The framework agreement between the US and the UNRWA tries to change UNRWA's operating mandate without the authorisation of the United Nations General Assembly. Therefore, this article follows a doctrinal analytical approach to both the framework agreement and the UNRWA's operational mandate. It also critically appraises this Agreement in light of international humanitarian law and verifies its impact on the human rights of both beneficiaries and UNRWA workers, including rights to education and freedom of speech. This article concludes that the Agreement violates the norms of public international law by switching the Agency's missions and avoiding the need for an important decision-making process.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48726816","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}
Pub Date : 2022-11-12DOI: 10.31436/iiumlj.v30is2.774
Rusni Hassan, Aishath Muneeza
During the COVID-19 pandemic, it became apparent that Islamic social finance (ISF) must be institutionalised due to inadequacies of Islamic commercial finance in providing adequate financial solutions to achieve financial inclusion. As such, the convergence of ISF with Islamic commercial finance is emerging while institutionalisation of ISF is gaining momentum globally. However, so far, there is no comprehensive governance code enacted to regulate the ISF institutions to guide them in the offering of their financial products and services within the parameters of Shari’ah, which include avoidance of corruption. Therefore, the objective of this research is to explore the existing mismanagement and corrupt practices found in managing the ISF and to recommend ways to overcome them. To meet its objective, this study adopts document analysis as its research methodology to review and discuss the selected management and corrupt practices of ISF institutions reported worldwide. It is anticipated that findings of this paper would assist policymakers, standard-setting bodies for Islamic finance, and ISF institutions to realise the significance of adopting good governance practices to take ISF to the next level. Further research could be undertaken to study the effectiveness of adopting good governance practices by ISF institutions and the implications of adopting such practices.
{"title":"THE NEED TO ELIMINATE MISMANAGEMENT AND CORRUPTION IN ISLAMIC SOCIAL FINANCE INSTITUTIONS","authors":"Rusni Hassan, Aishath Muneeza","doi":"10.31436/iiumlj.v30is2.774","DOIUrl":"https://doi.org/10.31436/iiumlj.v30is2.774","url":null,"abstract":"During the COVID-19 pandemic, it became apparent that Islamic social finance (ISF) must be institutionalised due to inadequacies of Islamic commercial finance in providing adequate financial solutions to achieve financial inclusion. As such, the convergence of ISF with Islamic commercial finance is emerging while institutionalisation of ISF is gaining momentum globally. However, so far, there is no comprehensive governance code enacted to regulate the ISF institutions to guide them in the offering of their financial products and services within the parameters of Shari’ah, which include avoidance of corruption. Therefore, the objective of this research is to explore the existing mismanagement and corrupt practices found in managing the ISF and to recommend ways to overcome them. To meet its objective, this study adopts document analysis as its research methodology to review and discuss the selected management and corrupt practices of ISF institutions reported worldwide. It is anticipated that findings of this paper would assist policymakers, standard-setting bodies for Islamic finance, and ISF institutions to realise the significance of adopting good governance practices to take ISF to the next level. Further research could be undertaken to study the effectiveness of adopting good governance practices by ISF institutions and the implications of adopting such practices.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49257691","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}
Pub Date : 2022-11-12DOI: 10.31436/iiumlj.v30is2.773
Mohammed Imad Ali, Aznan Hasan, Ashurov Sharofiddin
In both Islamic and conventional finance, SPVs (Special Purpose Vehicles) are a crucial part of securitisation. In an Islamic mode of securitisation, the SPV is accountable to facilitate the management of Sukuk, holding the title of the underlying asset, serving as a bankruptcy remote, and facilitating the cash flow for the investors. While Sukuk agreements are primarily regulated by English law, Sukuk's Shari’ah framework and underlying contract are governed under the jurisdiction of the local laws where Sukuk assets are located. Given this background, the study aims to examine the enforceability of foreign judgements and SPV framework of Saudi Arabia, Bahrain, and UAE, and afterward qualitatively analyse to determine the best practices from jurisdictions such as the United Kingdom, the United States of America, Malaysia, the Cayman Islands, and Turkey which can be incorporated in the selected jurisdictions. In this essence, secondary data is obtained from multiple resources such as Sukuk laws and regulations as well as articles, books, websites, and academic writings. These materials are then compared and analysed using the content analysis method. Thus, the regulations with respect to SPV incorporation and enforceability of foreign judgment will be examined as the analysis of these aspects will assist the Islamic finance community to reform their SPV framework in ways that explicitly and efficiently ensure transparency and inclusively disclose the scope of the role and status of all parties involved in an SPV formation.
{"title":"AN ASSESSMENT OF ENFORCEABILITY OF FOREIGN JUDGMENTS AND SPV INCORPORATION IN SUKUK WITH A SPECIFIC REFERENCE TO SAUDI ARABIA, UAE, AND BAHRAIN","authors":"Mohammed Imad Ali, Aznan Hasan, Ashurov Sharofiddin","doi":"10.31436/iiumlj.v30is2.773","DOIUrl":"https://doi.org/10.31436/iiumlj.v30is2.773","url":null,"abstract":"In both Islamic and conventional finance, SPVs (Special Purpose Vehicles) are a crucial part of securitisation. In an Islamic mode of securitisation, the SPV is accountable to facilitate the management of Sukuk, holding the title of the underlying asset, serving as a bankruptcy remote, and facilitating the cash flow for the investors. While Sukuk agreements are primarily regulated by English law, Sukuk's Shari’ah framework and underlying contract are governed under the jurisdiction of the local laws where Sukuk assets are located. Given this background, the study aims to examine the enforceability of foreign judgements and SPV framework of Saudi Arabia, Bahrain, and UAE, and afterward qualitatively analyse to determine the best practices from jurisdictions such as the United Kingdom, the United States of America, Malaysia, the Cayman Islands, and Turkey which can be incorporated in the selected jurisdictions. In this essence, secondary data is obtained from multiple resources such as Sukuk laws and regulations as well as articles, books, websites, and academic writings. These materials are then compared and analysed using the content analysis method. Thus, the regulations with respect to SPV incorporation and enforceability of foreign judgment will be examined as the analysis of these aspects will assist the Islamic finance community to reform their SPV framework in ways that explicitly and efficiently ensure transparency and inclusively disclose the scope of the role and status of all parties involved in an SPV formation.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69711654","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}
Pub Date : 2022-11-12DOI: 10.31436/iiumlj.v30is2.762
Nur Farhah Mahadi
This paper discusses how waqf properties, zakāt and qarḍ which are Islamic social finance (ISF) instruments, can be used to assist different categories of low-income individuals and groups to achieve financial empowerment and widen their financial well-being. In addition, this paper explains how takāful products and services can prevent financial anxiety and strengthen the financial resilience of low-income individuals and groups against unpredictable shocks. Qualitative approach is used to review opinions of both classical and contemporary jurists from four major Sunni madhāhib namely, the Ḥanafiyyah school, the Mālikiyyah school, the Shāfiʽīyah school and Ḥanbaliyyah school on the useability and application of waqf, zakāt, qarḍ and takāful as social financing tools. In addition, the paper discusses ijtihād held by a number of Muslim jurists who are known for deep thought and their ability to scrutinise and compare opinions and views from different Shari’ah sources. As the result, the divergent views expressed by these jurists are to some extent reconciled to help the policymakers and other interested parties to have a clear understanding of the actual meaning of the concept of sufficiency of sustenance/need (ḥājah) and conditions that deem to appropriately align with the concept. This is expected to provide the basis for the policymakers to formulate policies and strategies for the intended beneficiaries who are the low-income individuals and groups who constitute the vulnerable groups in a society. This research is supported by Ministry of Education (MOE) through Fundamental Research Grant Scheme (FRGS /1 /2021 /SS01 /UIAM /03 /3).
{"title":"AN ANALYSIS OF WAQF, ZAKĀT, QARḌ AND TAKĀFUL AS ISLAMIC SOCIAL FINANCE INSTRUMENTS: JURISTIC VIEWS","authors":"Nur Farhah Mahadi","doi":"10.31436/iiumlj.v30is2.762","DOIUrl":"https://doi.org/10.31436/iiumlj.v30is2.762","url":null,"abstract":"This paper discusses how waqf properties, zakāt and qarḍ which are Islamic social finance (ISF) instruments, can be used to assist different categories of low-income individuals and groups to achieve financial empowerment and widen their financial well-being. In addition, this paper explains how takāful products and services can prevent financial anxiety and strengthen the financial resilience of low-income individuals and groups against unpredictable shocks. Qualitative approach is used to review opinions of both classical and contemporary jurists from four major Sunni madhāhib namely, the Ḥanafiyyah school, the Mālikiyyah school, the Shāfiʽīyah school and Ḥanbaliyyah school on the useability and application of waqf, zakāt, qarḍ and takāful as social financing tools. In addition, the paper discusses ijtihād held by a number of Muslim jurists who are known for deep thought and their ability to scrutinise and compare opinions and views from different Shari’ah sources. As the result, the divergent views expressed by these jurists are to some extent reconciled to help the policymakers and other interested parties to have a clear understanding of the actual meaning of the concept of sufficiency of sustenance/need (ḥājah) and conditions that deem to appropriately align with the concept. This is expected to provide the basis for the policymakers to formulate policies and strategies for the intended beneficiaries who are the low-income individuals and groups who constitute the vulnerable groups in a society. \u0000This research is supported by Ministry of Education (MOE) through Fundamental Research Grant Scheme (FRGS /1 /2021 /SS01 /UIAM /03 /3).","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44574880","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}
Pub Date : 2022-11-12DOI: 10.31436/iiumlj.v30is2.767
Normarianie Razali, Rusni Hassan, Nor Razinah Mohd Zain
Since the introduction of the United Nation Millennium Development Goals (2000) and Sustainable Development Goals (2015), sustainable finance had grown exponentially via the strong support of regulators introducing a framework to support the financing of sustainable development. Malaysian regulatory bodies played an active role in pushing the sustainable agenda via its capital market, banking, and takaful sectors. The introduction of the regulatory framework for sustainable finance aims to serve as a guide for the industry players to take part in sustainable investment in these sectors. Institutional investors as the largest asset owners and financial sector players are key to reshaping the Environment, Social and Governance (ESG) development. By employing qualitative library research method, an analysis is made specifically from documents, speeches, newspaper releases, peer-reviewed journals, and texts related to sustainable finance in Malaysia. This paper provides an oversight of the historical development and Malaysian experience in developing their sustainable finance regulatory framework in the capital market, banking and takaful sectors. This paper is of the view that the development of the sustainable framework plays a significant role that acts as a driving force for the ESG institutional investors in Malaysia.
{"title":"EXPLORING THE REGULATORY FRAMEWORK OF SUSTAINABLE FINANCE IN MALAYSIA: DRIVING FORCE FOR ESG INSTITUTIONAL INVESTORS","authors":"Normarianie Razali, Rusni Hassan, Nor Razinah Mohd Zain","doi":"10.31436/iiumlj.v30is2.767","DOIUrl":"https://doi.org/10.31436/iiumlj.v30is2.767","url":null,"abstract":"Since the introduction of the United Nation Millennium Development Goals (2000) and Sustainable Development Goals (2015), sustainable finance had grown exponentially via the strong support of regulators introducing a framework to support the financing of sustainable development. Malaysian regulatory bodies played an active role in pushing the sustainable agenda via its capital market, banking, and takaful sectors. The introduction of the regulatory framework for sustainable finance aims to serve as a guide for the industry players to take part in sustainable investment in these sectors. Institutional investors as the largest asset owners and financial sector players are key to reshaping the Environment, Social and Governance (ESG) development. By employing qualitative library research method, an analysis is made specifically from documents, speeches, newspaper releases, peer-reviewed journals, and texts related to sustainable finance in Malaysia. This paper provides an oversight of the historical development and Malaysian experience in developing their sustainable finance regulatory framework in the capital market, banking and takaful sectors. This paper is of the view that the development of the sustainable framework plays a significant role that acts as a driving force for the ESG institutional investors in Malaysia.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45407547","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}
Pub Date : 2022-11-12DOI: 10.31436/iiumlj.v30is2.771
Rusni Hassan, Ibtisam @ Ilyana Ilias, Tuan Nur Hanis Tuan Ibrahim
The dispute resolution mechanism in a country involving Islamic banking depends on its applicable law. A workable mechanism guarantees a harmonious settlement and ensures justice is upheld in conjunction with the spirit of Islamic law. This study aims to analyse various mechanisms to resolve Islamic banking disputes in Malaysia and Indonesia by referring to the latest legal and judicial developments in both jurisdictions. It adopts doctrinal and comparative legal research methodology whereby the relevant primary and secondary sources of law were meticulously appraised. Findings of this study reveal that both countries have their own unique way of dealing with Islamic banking and finance cases. In Malaysia, the jurisdiction is vested in civil courts with mandatory reference to the SAC in deciding Shari’ah issues. Regarding Indonesia, Article 55 (1) of Law No. 21 (2008) provides that a Religious Court shall have jurisdiction to hear matters involving Islamic banking disputes, unless there is an agreement stating that the dispute resolution should be done in another manner, provided the chosen manner does not contradict with Shari’ah principles. There is also an option to refer to the Dewan Shari’ah Nasional Majlis Ulama Indonesia for expert opinions. Both jurisdictions also acknowledge alternative dispute resolution as a mechanism for dispute settlement. This study emphasises the need to enhance the knowledge and in-depth understanding of judges in the relevant field of law; Shari’ah law for civil court judges and civil law for religious court judges, to facilitate the dispute resolution process.
{"title":"ISLAMIC BANKING DISPUTE RESOLUTION: THE EXPERIENCE OF MALAYSIA AND INDONESIA","authors":"Rusni Hassan, Ibtisam @ Ilyana Ilias, Tuan Nur Hanis Tuan Ibrahim","doi":"10.31436/iiumlj.v30is2.771","DOIUrl":"https://doi.org/10.31436/iiumlj.v30is2.771","url":null,"abstract":"The dispute resolution mechanism in a country involving Islamic banking depends on its applicable law. A workable mechanism guarantees a harmonious settlement and ensures justice is upheld in conjunction with the spirit of Islamic law. This study aims to analyse various mechanisms to resolve Islamic banking disputes in Malaysia and Indonesia by referring to the latest legal and judicial developments in both jurisdictions. It adopts doctrinal and comparative legal research methodology whereby the relevant primary and secondary sources of law were meticulously appraised. Findings of this study reveal that both countries have their own unique way of dealing with Islamic banking and finance cases. In Malaysia, the jurisdiction is vested in civil courts with mandatory reference to the SAC in deciding Shari’ah issues. Regarding Indonesia, Article 55 (1) of Law No. 21 (2008) provides that a Religious Court shall have jurisdiction to hear matters involving Islamic banking disputes, unless there is an agreement stating that the dispute resolution should be done in another manner, provided the chosen manner does not contradict with Shari’ah principles. There is also an option to refer to the Dewan Shari’ah Nasional Majlis Ulama Indonesia for expert opinions. Both jurisdictions also acknowledge alternative dispute resolution as a mechanism for dispute settlement. This study emphasises the need to enhance the knowledge and in-depth understanding of judges in the relevant field of law; Shari’ah law for civil court judges and civil law for religious court judges, to facilitate the dispute resolution process.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43316101","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}
Pub Date : 2022-11-12DOI: 10.31436/iiumlj.v30is2.765
Ding Xiao Ling, Razali Haron, Aznan Hasan
Basel III modified the requirements for approving new regulatory capital norms to improve capital quality. Because bank liquidity problems were a defining feature of the crisis, Basel III established new requirement ratios while also tightened capital requirements. The Liquidity Coverage Ratio (LCR) was developed to safeguard banks' short-term liquidity, whereas the Net Stable Funding Ratio (NSFR) is being proposed to strengthen banks' medium- and long-term liquidity shock resilience. As a necessary consequence, Islamic financial institutions (IFIs) must issue instruments that satisfy both Basel III and Shari’ah requirements. This study aims to identify the regulatory requirements for Basel III and the Islamic Financial Services Board (IFSB)'s new capital and liquidity rules, as well as the implications for Islamic banks (IB). This study employs a mixed research methodologies approach which includes document analysis of primary and secondary sources, as well as the relevant regulations published by BCBS and IFSB. This study relies on the identification of Standards for each criterion before conducting a systematic review of the 23 publications that meet the study's requirements published between 2013 and 2022. There is a scarcity of Shari’ah-compliant research on capital buffers, tier 1 capital, and common equity tier 1 capital, according to certain findings. Furthermore, the empirical literature suggests that Basel III has a significant impact on the financial risk of the IB sector in the samples collected. However, there is still a significant gap in studies investigating the influence of Basel III/IFSB capital and liquidity regulations on Islamic bank risk, or more precisely, supportive data from empirical investigations. The wealth of research will provide new insights to standard-setters (BCBS and IFSB), regulators, researchers, and academicians.
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