Expert determination

COUNTRY FILES
MALAYSIA

Islamic finance dispute resolution: The need to complement litigation with expert determination
the Central Bank. Section 16B (1) provides that the SAC shall be theauthority for the ascertainment of Islamic law for the purposes of Islamic banking business. Malaysian judges are probably influenced by the ruling in the 1927 case of Ramah v Laton that as Islamic law ispart of the body of law of Malaysia, they must apply it as they themselves find it and cannot admit expert evidence on it. English courts have held that Islamic finance agreements are governed byEnglish law alone and that the reference to the principles of Shari’ah in the contracts did not intend to incorporate a system of law “intended to trump the application of English law” and that theShari’ah was not applicable as it was not the law of England and Wales. The reality, however, is that civil courts are indispensable as it is they who must decide not only on civil law issues but also on manyrelated aspects of Islamic finance including foreclosure of properties, enforcement of securities, winding up and bankruptcy. However, there is a need to complement the civil court scheme with thehybrid ADR feature of expert determination whereby the court would refer all issues pertaining to Islamic law to a recognised body of Shari’ah experts for an opinion which would bind the court. InMalaysia the SAC is perhaps the most appropriate body. However, Section 16B of the Central Bank of Malaysia Act is lacking as, under it, the court has the discretion whether to refer Islamic law questionsto the SAC and not to follow the Council’s opinion. There is, therefore, a need to legislate that all Islamic questions of law shall be referred by courts to the SAC and that the opinions of theCouncil shall bind the courts.

By Mohamad Illiayas Seyed Ibrahim
Once dismissed as an oddity and a peripheral business activity, the world-wide growth and development of Islamic finance during the...