ALTERNATIVE DISPUTE RESOLUTION IN ISLAMIC FINANCE: RECENT DEVELOPMENT IN MALAYSIA

Yıl 2011, Cilt: 3 Sayı: 1, 185 - 195, 01.06.2011

Jasri Jamal Nor Aziah Mohd Kamal Halili

Öz

On 31st March 2009, Court of Appeal has revoked the decision made by High
Court to announce that the contract of Bay Bithaman Ajil is null and void in the
case of Arab-Malaysia v Taman Ihsan Jaya Sdn. Bhd. & Onor [2008] 5 MLJ 631.
Interestingly, the judgement made by Appeal Court has touched the basic
elements of Islamic law especially the fundamental issues of BBA such as sell and
buy contract, acceptance of difference views of school of laws in Islam and other
basic issues of Shari’ah principles. This subject matter of Shari’ah principles
should be decided by the Shari’ah judges who are more expert in Islamic law than
the civil court. At the same year, the Government of Malaysia has passed the Central Bank of
Malaysia Act 2009 (Act 701) that provided the court shall refer to the Shari’ah
Advisory Council or arbitrator before giving any judgment on Islamic Finance
dispute. This paper is looking into recent development of legal framework of
Islamic Financial System in Malaysia and also the jurisdiction of Shari’ah Court
pertaining that matters.

Anahtar Kelimeler

Islamic Financial System, Legal Framework, Malaysia

Kaynakça

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• Kuala Lumpur: CERT Publication Nik Norzrul Thani at al. (2003), Law and Practice of Islamic Banking and Finance, Sweet & Maxwell Asia: Kuala Lumpur.
• Rahail Ali (2008), Islamic Finance: A Practical Guide, London: Globe Law
• Business Publishing Ltd. Securities Commission Malaysia (2009), Islamic Commercial Law (Fiqh al- Muamalat), Kuala Lumpur: LexisNexis.
• Zamir Iqbal & Abbas Mirakhor (2007), An Introduction to Islamic Finance,
• Theory and Practice, Singapore: John Wiley & Sons (Asia) Pte Ltd. Journal Article: Mervyn K Lewis (2007), Islamic Banking in Theory and Practice. Monash
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