CHOICE OF ISLAMIC LAW AS THE GOVERNING LAW IN ISLAMIC FINANCE CONTRACTS: THE UNITED KINGDOM AND NIGERIAN PERSPECTIVES

Abstract

The globalisation of Islamic finance has brought the adjudication of Islamic finance disputes before non-Muslim courts and arbitral tribunals in Europe, America and elsewhere. Expectedly, the issue of the validity of the selecting Islamic law as the governing law of an Islamic finance contract often arises before these courts and tribunals. The article seeks to address the attitude of the United Kingdom and Nigerian courts to this unique problem. The thesis of the paper is that while the parties’ reasonable expectations in having their Islamic finance contracts governed by the Shari’ah may be met in Nigeria and by extension in other Muslim-majority countries, the contrary is the case in the United Kingdom and Europe where the courts do not generally favour the application of Islamic law. The paper advocates that the doctrine of the proper law of contract should be extended to Islamic finance by upholding Islamic law as the law selected by the parties (on the basis of party autonomy) or alternatively, as the system of law with which an Islamic finance transaction is most closely connected.