The Choice of the Shari’a as Governing Law in Arbitration Proceedings

Abstract

The paper aims at offering an understanding of Shari’a as an evolving legal system and the challenges that are posed to scholars by the choice of Shari’a as governing law. In particular, after having provided a critical overview of the UK case law concerning the enforceability of the reference to Shari’a in cross-border Islamic financial transactions, the Authors problematize the argument of the refusal to apply Shari’a on the assumption that non-State laws cannot be incorporated into an agreement as lex contractus by highlighting how it seems flawed by the lack of reliance upon a hermeneutical method able to promote the interpreting activity as a unitary procedure of joint interpretation of facts and legal principles in both an axiological and a systematic perspective. Islamic law, Islamic finance law, interpretation, standardization, enforceability, arbitration, Riba, Shari’a, public order, comparative law