Pub Date : 2021-07-01DOI: 10.1163/15730255-BJA10087
Sahib al-Fatlawi, Derar Al-Daboubi
Unjust enrichment is considered one source of obligations, which stands in contrast to harmful acts as another source of obligation in the Jordanian Civil Code (JCC). The Unjust Enrichment Rule has developed historically from Roman law, through Islamic jurisprudence, then French law and jurisprudence to modern laws, such as that in Egypt influenced by French law. All these laws have recognised the Unjust Enrichment Rule as an independent source of obligation. Although the JCC was influenced by Islamic jurisprudence, Arab laws, such as the Egyptian Civil Code, and foreign-influenced Arab laws, its features distinguish it from other laws, either in terms of naming the source or the details related to its legal provisions. JCC’s special features need to be highlighted, defined and evaluated for comparison with other laws, i.e., proving beneficial when enacting a new JCC or defining it as unique rather than a copy of other precedent Arab laws.
{"title":"Legal Features of the Provisions of Unjust Enrichment in Jordanian Civil Law and Comparative Law","authors":"Sahib al-Fatlawi, Derar Al-Daboubi","doi":"10.1163/15730255-BJA10087","DOIUrl":"https://doi.org/10.1163/15730255-BJA10087","url":null,"abstract":"\u0000Unjust enrichment is considered one source of obligations, which stands in contrast to harmful acts as another source of obligation in the Jordanian Civil Code (JCC). The Unjust Enrichment Rule has developed historically from Roman law, through Islamic jurisprudence, then French law and jurisprudence to modern laws, such as that in Egypt influenced by French law. All these laws have recognised the Unjust Enrichment Rule as an independent source of obligation. Although the JCC was influenced by Islamic jurisprudence, Arab laws, such as the Egyptian Civil Code, and foreign-influenced Arab laws, its features distinguish it from other laws, either in terms of naming the source or the details related to its legal provisions. JCC’s special features need to be highlighted, defined and evaluated for comparison with other laws, i.e., proving beneficial when enacting a new JCC or defining it as unique rather than a copy of other precedent Arab laws.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49634204","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 : 2021-07-01DOI: 10.1163/15730255-bja10089
E. Shoarian, Mahsa Jafari
Unlike civil law jurisdictions, the good faith principle in Islamic law is a notion not directly discussed, the foundations of which this article seeks to root out through an analysis of related, but distinct, Islamic law doctrines. As such, since Islamic law is a significant source of codification and adjudication in many Islamic countries, the perspective of some MENA countries as well as Iran towards good faith is also explored. In practice, courts and tribunals could invoke the good faith principle where Islamic law or Islamic-based laws govern the contractual relationships. This article contends that good faith permeates every sphere of a contractual relationship, particularly negotiation under Islamic law.
{"title":"Good Faith Principle in Contract Law: A Comparative Study under Sharīʿah, Islamic Law Jurisdictions with Emphasis on Iranian Law","authors":"E. Shoarian, Mahsa Jafari","doi":"10.1163/15730255-bja10089","DOIUrl":"https://doi.org/10.1163/15730255-bja10089","url":null,"abstract":"\u0000Unlike civil law jurisdictions, the good faith principle in Islamic law is a notion not directly discussed, the foundations of which this article seeks to root out through an analysis of related, but distinct, Islamic law doctrines. As such, since Islamic law is a significant source of codification and adjudication in many Islamic countries, the perspective of some MENA countries as well as Iran towards good faith is also explored. In practice, courts and tribunals could invoke the good faith principle where Islamic law or Islamic-based laws govern the contractual relationships. This article contends that good faith permeates every sphere of a contractual relationship, particularly negotiation under Islamic law.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47002538","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 : 2021-06-22DOI: 10.1163/15730255-bja10086
Hussein M. Azmy
This article examines the recent reformation of the foreign investment regulatory environment that was introduced by the Foreign Capital Investment Law of Oman (Royal Decree No. 51/2019) and its Executive Regulation (Ministerial Decision No. 72/2020) with the aim of boosting foreign direct investment (FDI) in Oman. This examination focuses on the texts of the current Foreign Capital Investment Law and its Executive Regulation and analyses the provisions that, in the author’s view, will have a direct impact on the foreign investment sector in Oman. Furthermore, these provisions are contrasted with their counterparts in the former Foreign Capital Investment Law (Royal Decree No. 102/1994) to highlight their strengths and weaknesses. Based on this analysis, the article proposes a set of recommendations to address a number of issues with the current foreign investment regulatory framework with the aim of achieving regulatory clarity and enhancement concerning the framework’s scope of application.
{"title":"A Critical and Analytical Assessment of the 2019 Reformation of the Foreign Investment Regulatory Framework of Oman","authors":"Hussein M. Azmy","doi":"10.1163/15730255-bja10086","DOIUrl":"https://doi.org/10.1163/15730255-bja10086","url":null,"abstract":"\u0000This article examines the recent reformation of the foreign investment regulatory environment that was introduced by the Foreign Capital Investment Law of Oman (Royal Decree No. 51/2019) and its Executive Regulation (Ministerial Decision No. 72/2020) with the aim of boosting foreign direct investment (FDI) in Oman. This examination focuses on the texts of the current Foreign Capital Investment Law and its Executive Regulation and analyses the provisions that, in the author’s view, will have a direct impact on the foreign investment sector in Oman. Furthermore, these provisions are contrasted with their counterparts in the former Foreign Capital Investment Law (Royal Decree No. 102/1994) to highlight their strengths and weaknesses. Based on this analysis, the article proposes a set of recommendations to address a number of issues with the current foreign investment regulatory framework with the aim of achieving regulatory clarity and enhancement concerning the framework’s scope of application.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46984288","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 : 2021-05-18DOI: 10.1163/15730255-BJA10084
Samah al-Agha
The purpose of this research is to identify and explore the factors that have contributed to the prevention of women from working in the Saudi Arabian judiciary from the viewpoints of male Saudi judges. The study applies the qualitative research method and uses interviews to obtain the required data. It uses primary and secondary resources to support the arguments. The data analysis reveals three main themes under which these factors fall: the legal constraints, the religious constraints, and the cultural constraints. Finally, the study concludes with some findings and recommendations with regard to employing women in the judiciary.
{"title":"Female Judges in Saudi Arabia, Hope Versus Reality","authors":"Samah al-Agha","doi":"10.1163/15730255-BJA10084","DOIUrl":"https://doi.org/10.1163/15730255-BJA10084","url":null,"abstract":"\u0000The purpose of this research is to identify and explore the factors that have contributed to the prevention of women from working in the Saudi Arabian judiciary from the viewpoints of male Saudi judges. The study applies the qualitative research method and uses interviews to obtain the required data. It uses primary and secondary resources to support the arguments. The data analysis reveals three main themes under which these factors fall: the legal constraints, the religious constraints, and the cultural constraints. Finally, the study concludes with some findings and recommendations with regard to employing women in the judiciary.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45408476","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 : 2021-05-10DOI: 10.1163/15730255-BJA10077
Fathi Hussain, M. Zahraa
Dispute settlement mechanisms (DSM) are the heart of international organisations without which organisations would be ineffective. The European Union (EU) is probably the most effective regional body whose efficacy is largely due to its powerful judicial organ, the Court of Justice (CJEU). This article also examines the DSM available in the Gulf Cooperation Council (GCC), in order to assess its effectiveness. It briefly discusses aspects of the EU and CJEU to help provide suggestions to improve the GCC DSM. This article concludes that the GCC DSM lacks effectiveness due to an inherent defect in its DMS organs. This defect is twofold: first, the GCC has yet to establish an effective judicial organ to deal with its disputes; and, second, there is a lack of political will to establish an organ that is vested with a supranational power that can override the individual will of the Member States.
{"title":"Dispute Settlement Mechanisms: Gulf Cooperation Council Practice v. European Union Practice","authors":"Fathi Hussain, M. Zahraa","doi":"10.1163/15730255-BJA10077","DOIUrl":"https://doi.org/10.1163/15730255-BJA10077","url":null,"abstract":"\u0000Dispute settlement mechanisms (DSM) are the heart of international organisations without which organisations would be ineffective. The European Union (EU) is probably the most effective regional body whose efficacy is largely due to its powerful judicial organ, the Court of Justice (CJEU). This article also examines the DSM available in the Gulf Cooperation Council (GCC), in order to assess its effectiveness. It briefly discusses aspects of the EU and CJEU to help provide suggestions to improve the GCC DSM. This article concludes that the GCC DSM lacks effectiveness due to an inherent defect in its DMS organs. This defect is twofold: first, the GCC has yet to establish an effective judicial organ to deal with its disputes; and, second, there is a lack of political will to establish an organ that is vested with a supranational power that can override the individual will of the Member States.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"-1 1","pages":"1-26"},"PeriodicalIF":0.3,"publicationDate":"2021-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48450271","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 : 2021-05-03DOI: 10.1163/15730255-BJA10085
T. Kameel, Fayez Alnusair, Nour Alhajaya
This article compares consumer protection in the framework of discounts with the constituent elements of such sales and the relevant methods of protecting consumer rights, according to French, Emirati, Jordanian, and Tunisian legislation and judicial practice. The findings shed light on the operation of consumer rights and market protection, and argues that each legal system has developed divergent means to attain the same goal. While some legal systems have organised sales with detailed rules, others have engaged in very limited market intervention; in the latter case, consumers are prevented from enjoying an important set of rights, as consumer rights and market protection are determined by the merchants.
{"title":"Consumer Protection in Jordanian Discount Sales: A Comparative Study with the Legislations of France, Tunisia and the United Arab Emirates","authors":"T. Kameel, Fayez Alnusair, Nour Alhajaya","doi":"10.1163/15730255-BJA10085","DOIUrl":"https://doi.org/10.1163/15730255-BJA10085","url":null,"abstract":"\u0000This article compares consumer protection in the framework of discounts with the constituent elements of such sales and the relevant methods of protecting consumer rights, according to French, Emirati, Jordanian, and Tunisian legislation and judicial practice. The findings shed light on the operation of consumer rights and market protection, and argues that each legal system has developed divergent means to attain the same goal. While some legal systems have organised sales with detailed rules, others have engaged in very limited market intervention; in the latter case, consumers are prevented from enjoying an important set of rights, as consumer rights and market protection are determined by the merchants.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"1 1","pages":"1-16"},"PeriodicalIF":0.3,"publicationDate":"2021-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42610294","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 : 2021-04-22DOI: 10.1163/15730255-BJA10083
H. Hamoudi
{"title":"The Arab Law Quarterly at 35: Paths Forward","authors":"H. Hamoudi","doi":"10.1163/15730255-BJA10083","DOIUrl":"https://doi.org/10.1163/15730255-BJA10083","url":null,"abstract":"","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"35 1","pages":"245-247"},"PeriodicalIF":0.3,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44519796","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 : 2021-03-12DOI: 10.1163/15730255-BJA10080
Mostafa Abu-Hagras
An Egyptian court refused the enforcement of an United Arab Emirates award on winding-up leaving quantum for a liquidator-expert. It explained that the award lacks certainty and failed to determine the sum of the awarded debt; the effects of the award are thus incomplete. The liquidator-expert’s report could not stand a valid instrument for completing such effects. The court has incidentally raised the issue of the arbitrator’s failure to render an award eligible for forced execution.
{"title":"An Award on Winding-Up Leaving Quantum for a Liquidator-Expert Refused Enforcement","authors":"Mostafa Abu-Hagras","doi":"10.1163/15730255-BJA10080","DOIUrl":"https://doi.org/10.1163/15730255-BJA10080","url":null,"abstract":"\u0000An Egyptian court refused the enforcement of an United Arab Emirates award on winding-up leaving quantum for a liquidator-expert. It explained that the award lacks certainty and failed to determine the sum of the awarded debt; the effects of the award are thus incomplete. The liquidator-expert’s report could not stand a valid instrument for completing such effects. The court has incidentally raised the issue of the arbitrator’s failure to render an award eligible for forced execution.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"1 1","pages":"1-20"},"PeriodicalIF":0.3,"publicationDate":"2021-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45360470","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 : 2021-03-03DOI: 10.1163/15730255-BJA10081
Haitham A. Haloush
There is no clear provision in how the Jordanian Civil Code deals with the principles of good faith and freedom of contract. Interpretations can go either way, although there is a notable tendency that gravitates towards good faith. One significant aspect of the principle of good faith is that it provides a solid ground of contractual and legal interpretation of controversial construction issues such as time bar clauses. This research highlights how time bar clauses in construction contracts may affect the rights and responsibilities of Employers and Contractors under the Jordanian law. Often application of the principle of good faith produces a result similar to that under time bar clauses in FIDIC rules. As far as the author is aware, this issue has not been researched comprehensively before from technical and legal standpoints. This article represents a first attempt to examine the issues arising in this difficult and important subject.
{"title":"The Emperor’s New Clothes: Time Bar Clauses in Construction Contracts Between Legal Tradition and Good Faith","authors":"Haitham A. Haloush","doi":"10.1163/15730255-BJA10081","DOIUrl":"https://doi.org/10.1163/15730255-BJA10081","url":null,"abstract":"\u0000 There is no clear provision in how the Jordanian Civil Code deals with the principles of good faith and freedom of contract. Interpretations can go either way, although there is a notable tendency that gravitates towards good faith. One significant aspect of the principle of good faith is that it provides a solid ground of contractual and legal interpretation of controversial construction issues such as time bar clauses. This research highlights how time bar clauses in construction contracts may affect the rights and responsibilities of Employers and Contractors under the Jordanian law. Often application of the principle of good faith produces a result similar to that under time bar clauses in FIDIC rules. As far as the author is aware, this issue has not been researched comprehensively before from technical and legal standpoints. This article represents a first attempt to examine the issues arising in this difficult and important subject.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"1 1","pages":"1-14"},"PeriodicalIF":0.3,"publicationDate":"2021-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43147365","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 : 2021-03-02DOI: 10.1163/15730255-BJA10079
Maen Al-Qassaymeh, Nayel Musa Shaker Alomran
Option of defect is an important theory regulated in Omani Civil Law. It gives the injured party in bilateral contracts an option to rescind the contract if they find a defect in the subject matter of the contract. This theory is deemed a legal basis to refuse objects of sale by tender. In particular, it is useful when a guarantee that is given to the governmental body is insufficient to cover damages, due to bad performance of the contract. This article discusses how the option of defect is applied to sale by tender in Omani law.
{"title":"Role of Option of Defect in Tenders: A Study under Omani Law","authors":"Maen Al-Qassaymeh, Nayel Musa Shaker Alomran","doi":"10.1163/15730255-BJA10079","DOIUrl":"https://doi.org/10.1163/15730255-BJA10079","url":null,"abstract":"\u0000Option of defect is an important theory regulated in Omani Civil Law. It gives the injured party in bilateral contracts an option to rescind the contract if they find a defect in the subject matter of the contract. This theory is deemed a legal basis to refuse objects of sale by tender. In particular, it is useful when a guarantee that is given to the governmental body is insufficient to cover damages, due to bad performance of the contract. This article discusses how the option of defect is applied to sale by tender in Omani law.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"1 1","pages":"1-17"},"PeriodicalIF":0.3,"publicationDate":"2021-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43623382","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：