Исламские финансовые инструменты и право: применение норм шариата судами Англии и ОАЭ

Abstract

The total amounts of Islamic financial assets has grown exponentially lately and it is important that it has happened in conditions of the global financial crisis. An increasing number of Islamic finance instruments were adopted in the new IF centers of London and Dubai, including its financial “free zone”, the Dubai International Finance Centre (DIFC), while many of them contain choice-of-law clause (English and DIFC) and jurisdiction clause. Due to the fact that the proper law of a contract can be only the law of a country or a jurisdiction, neither the English nor the DIFC courts can apply Islamic Law norms directly but both can apply them indirectly when it is recognized as relevant. They have already on several occasions demonstrated their willingness to apply principles of Sharia Law especially in determining whether an instrument, concluded with excess of power by one of its parties because it is ribawi or it does not comply with Sharia Laws. Accordingly, the present article is mainly devoted to the analysis of the problem of indirect application of Sharia norms by English and DIFC courts which is particularly relevant in the areas of foreign trade contracts and groups of companies.