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| Analysis Of Legal Disputes In Islamic Finance And The Way Forward: With Special Reference To A Study Conducted At Muamalat Court, Kuala Lumpur, Malaysia Hakimah Yaacob | Pioneering Thoughts On Commodity Hawalah: Facilitating The Trading Of Debt? Prof. Dr. Ashraf Md Hashim & Eqhwan Mokhzanee Muhammad |
| Summary and download links here under | |
The main objective of this paper is to examine the disputed issues in the cases examined by the Muamalat Court. The study also aims at studying the legal impediments in the current provisions that hamper the growth of mumalat law. The study is divided into five parts. Part 1 is a brief introduction. Historical development of the legal framework is briefly described in Part 2. Part 3 describes the distribution of disputed cases in Islamic finance (IF). Part 4 analyses disputed cases according to the products offered from the structural and legal framework perspectives. In Part 5, the discussion focuses mainly on the pertinent issues raised in the cases analysed. Finally, Part 6 concludes with some recommendations for future research and reforms. Through examining the above, the paper proposes regulatory changes to the existing legal framework to meet the needs of the industry. The paper concentrates on examining the regulation and legal framework of IF in Malaysia. It is supplemented by statistics on products and issues that most affect the market. It is hoped that this effort to examine the challenges will promote the way forward for the IF industry in Malaysia. The paper sheds new light on how challenges to IF in Malaysia’s legal framework can be met in order to lay the foundations for substantial growth. | One of the major contentious areas within the Islamic finance industry is the sale or tradability of debt and debt-based instruments, the issue revolving around the principle of bay' al-dayn. Jurisdictions which permit bay' al-dayn have experienced tremendous growth, particularly with regards to transactions involving financing assets, and liquidity management and debt capital market instruments such as commodity murabahah sukuk. In other jurisdictions, the prohibition of bay' al-dayn has inevitably somewhat constrained the development of their Islamic finance industries. This paper seeks to bridge the gap between the two contrasting views by introducing the pioneering concept of commodity hawalah. The proposed commodity hawalah mechanism is a combination of debt and commodity trading, which are underpinned by the principle of hawalah al-haqq (i.e., transfer of the rights to a debt). It is hoped that the proposed commodity hawalah mechanism could set the foundation or benchmark for the trading of debt and debt-based instruments across all Islamic jurisdictions. |
