Commercial Matters Research Articles

Seeking specific relief in cases of Islamic banking in Malaysia – an analysis

PurposeOften, the application of specific relief to Islamic banking is unspoken and unwritten. However, few studies suggest that legislation on specific relief needs amendment to cater for the effective application of Islamic banking and finance in the country and proposing the idea to introduce an Islamic Specific Relief Act. This paper aims to understand the application of specific relief to Islamic banking in Malaysia. This paper will look at the application of specific relief in Malaysia and discuss the extent of its application to Islamic banking cases reported in Malaysia from 1983 to 2015. The study will shed light on the general types of specific relief from Malaysian and Islamic law perspectives to conclude whether the provisions of Malaysian specific relief law invoked in courts in Islamic banking cases are in line with the general principles of Sharīcah. To further support this, evidence from various commercial civil codes of Muslim countries have been discussed to analyse these provisions from a more practical perspective.Design/methodology/approachThis is a legal exploratory study primarily focussed on library research.FindingsWhen it comes to Islamic banking, federal legislations dealing with commercial matters are applicable. For example, in Islamic banking products, if the land is the subject matter, then National Land Code 1965 shall be applied, and when dealing with Islamic banking agreements, the provisions of Contracts Act 1950 shall be followed. This has been highlighted as a problem faced by Islamic financial services in the case of Tan Sri Abdul Khalid Ibrahim v. Bank Islam Malaysia Berhad and other cases where the judge referred Engku Rabiah and quoted that in Islamic banking transactions, “the transactions entered by the parties may be Sharīcah-compliant in the first place, but upon enforcement of the contracts, the court may make orders and decisions that may side line the Islamic legal principles”. This happens when the substantive laws applicable to Islamic banking are incompatible with Islamic law. Fortunately, the analysis of the relevant sections of Specific Relief Act 1950 in this research proves that the provisions reviewed are in line with Sharīcah. However, to further enhance the operation of specific relief, the granting of specific relief could be made a general rule rather than an exceptional rule available with stringent rules. The research revealed that Specific Relief Act (1950) is expressly referred and discussed only in three cases reported from 1983 to 2015. There are only two specific sections of Specific Relief Act (1950) that have been deliberated in the reported case law on Islamic banking: provisions related to granting of a mandatory injunction and specific performance of contracts.Originality/valueIt is anticipated that this paper will assist to comprehend the importance of converging law and Sharīcah in legislations to attain Sharīcah compliance and will help to realise that not all conventional legislations are Sharīcah non-compliant.

СТАТУТИ ОДЕСЬКОЇ ТА КИЇВСЬКОЇ БІРЖ ЯК ДЖЕРЕЛО З ІСТОРІЇ РОЗВИТКУ БІРЖОВОЇ СПРАВИ УКРАЇНИ У ДРУГІЙ ПОЛОВИНІ ХІХ ст.

The article deals with some aspects of development of stock exchange business in Ukraine in the second half of the ХІХ century. The emphasis is made on the analysis of the activities of the two key stock exchange organizations of this period: the Odessa and Kiev exchanges, where trading operations were carried out related to the key branches of the Ukrainian economy of this era: sugar and grain. The main sources were the Statutes of the Odessa and Kiev Stock Exchanges, approved in the 60's. ХІХ centuries. These materials allow to highlight issues related to the organization of the activities of exchange institutions, to consider their structural organization and rules for conducting commercial activities, to show the functions and authorities of the governing bodies, in particular, the stock Exchange Committees and Exchange organizations. A significant part of the articles of the Statutes highlights the functions, rights and duties of the Stock Exchange Committees - the governing bodies of financial organizations. According to these documents, this body should act as an intermediary in the occurrence of disputes in commercial matters, supervise the exchange house, and ensure proper and legitimate trade on the stock exchange. In addition, the stock exchange committees entered into relations with representatives of the authorities, including Novorossiysk and Bessarabsky, as well as the Kiev Governor General. The Statute regulated the procedure for the provision of various documents to state institutions, in particular, reports to the foreign trade department, the military governor, the State Commercial Court, which were signed by two committee members. The stock exchange committees of the largest stock exchanges of Ukraine in the period under review consisted of three or four members elected exclusively by local merchants of the first and second guilds, who were engaged in stock exchange business. One of the members of the committee was elected by its chairman. The composition of the governing body was elected for a period of three years. If the chairman focused on the maintenance of stock exchange documentation and the office, his assistants took on the function of treasurers, carried out economic tasks, and also acted as vice-chairmen in the absence of the chairman. If necessary, the committee authorized the election of two or three deputies to carry out various assignments from the number of permanently active stock traders. Also, the Statutes of the Kiev and Odessa stock exchanges established sources of institutions’ revenue, which consisted of contributions for visits and dividends from capital and property owned by the stock exchange company. Extraordinary expenses arising in the process of the activities of institutions were paid only with the consent of the stock exchange company exercising general control over the financial activities of the Exchange Committees. Every year the committee made a financial report, which was published in local provincial news

A New European Parliament Mediation Resolution Calls On Member States and the EC to Promote More Use

Last September, the European Parliament approved a resolution on the implementation of the 2008 Directive on certain aspects of mediation in civil and commercial matters. (Available at http://bit.ly/2Efff0E.)

Federico Ortino

Even when it comes to investment, despite appearances to the contrary, it does not seem to me that there is a shift to the non-discrimination principle. First, there is no doubt that absolute standards such as fair and equitable treatment or the provision on expropriation have by far overshadowed the relative standards, in particular national treatment. Second, while the MFN standard has, on the other hand, been a key provision in investment treaty arbitration, particularly as an instrument to expand the scope of the ISDS system (based on more favorable provisions found in third-party treaties), there are clear signs in recent investment treaties of the willingness to curtail the use of the MFN provision as a way to extend the procedural and substantive protections of investors. This seems to be the current position, for example, of both the United States and the European Union (EU). Third, when it comes to the apparent disappearance of the absolute standards of treatment in some of the treaties being negotiated by the European Union (such as with Japan), this is more simply due to a question of the nature of the EU external competence in commercial matters. In its recent opinion on the EU-Singapore FTA, the Court of Justice of the EU has determined that the EU does not have exclusive competence to conclude agreements covering non-FDI and ISDS. The EU has thus responded to such opinion by splitting investment protection (with ISDS) from the rest of the trade agreement, thus keeping investment liberalization (including market access and national treatment) in the latter. In this way, while the trade agreement will fall under the exclusive competence of the EU, the former will still require ratification by each member state. While it is not clear whether the backlash vis-à-vis investment protection and ISDS in some quarters within some of the member states will eventually lead to the end of EU investment treaties, a decision in this sense has not yet been taken by EU institutions.

Kodifikacija trgovačkog prava u Kneževini Srbiji (1849-1860)

The article exposes codification of commercial law in the Principality of Serbia. That process took place between 1849 and 1860. Its first phase, lasting from 1849 to 1853, commenced on Ministry of Finance's initiative. The comittee consisting of state officials and Belgrade merchants drew up a draft commercial code in 1851. Although the legislative body, State Council, primarily approved of codification, in 1853 it rejected the draft with motivation that the text had not contained the matter of commercial courts, that Serbian people as poorly educated would not be able to understand commercial code's complicated notions and that Serbian merchants were immature for codified commercial law. Commercial Comittee, the organization founded in January 1856 with the goal of proposing measures aimed to enchance trade in Serbia, requseted for introduction of commercial code the very same year. In the beginning of 1857 the Council formed the comittee tasked with revising the draft from 1851 and preparing drafts on organization of commercial courts and court procedure in commercial matters; all three texts were meant to become parts of commercial code. The composed draft had been sent to Commercial Comittee on 14 February 1859, which sent it back to the Ministry with its remarks on 8 October the same year. After the three-member committee formed by the Ministry of Justice on 24 November 1859 had somewhat altered the draft, the corrected version was consigned to the Prince. Commercial code had received the Prince's sanction on 22 December 1859 and entered into force on 26 January 1860, thus making Serbia one of the countries with codified commercial law. The cause for the codification doubtlessly lies in the trade between merchants of Belgrade and those from Austria that intensified subsequent to Revolution 1848. In these business relations Austrian merchants were using bills of exchange as security, which meant that their Belgrade partners were to be most punctual in fullfiling their contractual obligations. However, due to lack of commercial regulations and long-lasting civil procedure before Serbian courts, the merchants from the capital could not realize their own claims towards the debtors from the province and were consequently unable to collect money to settle their own debts. For that reason, from 1852 onwards Belgrade merchant were filing petition for enactment of Commercial code. Their petitions had ever more undersigneds, which may indicate that the problem was constantly becoming more serious. Nevertheless, only in the end of 1850s, when the lack of commercial code showed its palpable effects in province, was the code introduced.

Schrems v Facebook: The Consumer Definition in the Framework of Digital Social Networks

Case C-498/16 Maximilian Schrems v Facebook Ireland Limited [2018] ECLI:EU:C:2018:37 On the interpretation of the term ‘consumer’ in the context of digital social networks and the application of consumers jurisdiction rules to claims assigned by other consumers domiciled in the same Member State, in other Member States or in non-member countries. The Court of Justice of European Union interpreted Article 15 of Council Regulation No 44/2001 as meaning that the activities of publishing books, lecturing, operating websites, fundraising and being assigned the claims of numerous consumers do not entail the loss of a private Facebook account user’s status as a ‘consumer’. Furthermore, Article 16 of Regulation No 44/2001 must be interpreted as meaning that it does not apply to the proceedings brought by a consumer for the purpose of asserting, in the courts of the place where he is domiciled, not only his own claims, but also claims assigned by other consumers domiciled in the same Member State, in other Member States or in non-member countries. Articles 15 and 16 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; OJ 2001 L 12/1

JUDICIAL COOPERATION IN CIVIL AND COMMERCIAL MATTERS AFTER BREXIT: WHICH WAY FORWARD?

AbstractJudicial cooperation in civil and commercial matters is generally perceived to be of a rather ‘specialist and technical nature’. However, for the many UK and EU citizens, families and businesses who work, live, travel and do business abroad, the current European framework for choice of law, jurisdiction and recognition and enforcement is of paramount importance. The article, therefore, explores how that framework might look like after Brexit and explores the merits and demerits of the various ways forward. It argues that the best option for both the UK and the EU would be to agree on the continued application of the existing EU instruments or to strive for conclusion of a new agreement that closely replicates these instruments. If no such agreement can be reached the UK should decide to apply the Rome I and Rome II Regulations unilaterally and sign the Lugano Convention of 2007 as well as the Hague Convention on Choice of Court Agreements of 2005.

The European Court of Justice in Bolagsupplysningen: The Brussels I Recast Regulation's jurisdictional rules for online infringement of personality rights further clarified

In the European Union the Brussels Ibis Regulation governs the jurisdiction of Member State courts in civil and commercial matters. The reference for a preliminary ruling coming from the Estonian Supreme Court in the Bolagsupplysningen case offered the European Court of Justice another opportunity to develop its interpretation of the special ground for non-contractual obligations (article 7.2). The European Court of Justice's Grand Chamber ruled that legal persons, like natural persons, have the option of bringing a claim based on the infringement of personality rights by an online publication before the courts of the Member State where their centre of interests is located. It laid down that the centre of interests of a legal person pursuing an economic activity is determined by reference to the place where the company carries out the main part of its economic activities. The victim of a tortious internet publication can only seek an order for rectification and removal of the incorrect information in the courts that have jurisdiction over the entirety of the harm sustained and not before the courts that only enjoy jurisdiction with regard to the damage suffered in their territory.

Ответственность юридических лиц за нарушение правил конкуренции: уголовное преследование и альтернативные способы урегулирования конфликтов (сравнительный аспект)

In the article there is an analysis of criminal and criminal prosecution mechanism of legal persons’ liability for the violation of competition rules in some post-Soviet countries (Azerbaijan, Georgia, Kyrgyzstan, Moldova, Estonia).
 With a glance to a comparative evaluation there are features of national approaches established to regulate criminal law and criminal procedural measures applicable to legal persons who have committed acts in the field contrary to honest practices in industrial or commercial matters covered by the criminal branch of law.
 Based on the latest trends in criminalization, the model of criminal liability of legal persons is identified that is known in the world’s practice. Among them there are marked identified model (on the example of Estonia and Kyrgyzstan) and extended identified (based on the legislative approaches of Azerbaijan, Georgia, Moldova) models of corporate criminal liability.
 There are accumulated findings about the specifics of criminal prosecution of legal persons who have committed socially dangerous acts in the sphere of competition, and the possibility of using alternative mechanisms for the settlement of criminal law disputes in the stage of criminal prosecution.
 The conclusion defined is about direct dependence of realization of alternative dispute resolution mechanisms on the approach of the legislator to the legal entity of the Institute of responsibility of legal persons in criminal law.

Provisional Account Preservation Measures in European Civil Procedure Law

With the Regulations 1215/2012 (Brussels Ia Regulation) and 655/2014 (EAPO Regulation), the European legislator has created two new and very distinct instruments to facilitate cross-border debt recovery in civil and commercial matters. While the Brussels Ia Regulation provides for an easier recognition and enforcement of national interim measures in other EU Member States, the EAPO Regulation creates a single provisional and protective measure enabling creditors to prevent the transfer or withdrawal of the debtors' assets from any bank account located in the EU. This paper provides a comparative analysis of these European legal instruments by evaluating the rules on preconditions, legal remedies and the different effects of national interim measures that shall be recognised and enforced within the Brussels Ia regime and the new EAPO. Fundstelle: Anzenberger/Ivanc, Provisional Account Preservation Measures in European Civil Procedure Law, ALJ 2/2017, 57–70 (http://alj.uni-graz.at/index.php/alj/article/view/86).

معاملة القانون الأجنبي أمام القاضي البحريني- دراسة مقارنة في ضوء التوجهات الفقهية والقضائيية المعاصرة في القانون الدولي الخاص (The Treatment of Foreign Law before Bahrain Judge- Comparative Study in Light of the New Trends of Scholars and Judicial Decisions)

معاملة القانون الأجنبي أمام القاضي البحريني- دراسة مقارنة في ضوء التوجهات الفقهية والقضائيية المعاصرة في القانون الدولي الخاص (The Treatment of Foreign Law before Bahrain Judge- Comparative Study in Light of the New Trends of Scholars and Judicial Decisions)

Recognition and enforcement of mainland China’s civil and commercial judgments in Hong Kong – an update

ABSTRACTThe movement of judgments in civil and commercial matters between mainland China and Hong Kong has long been a problem, especially since the handover of Hong Kong from Great Britain to the People’s Republic of China on 1 July 1997. To partly resolve the problem, in 2006, mainland China and Hong Kong signed an Arrangement on mutual recognition and enforcement of judgments pursuant to exclusive choice of court agreements. However, even for this ‘narrow’ Arrangement, there have not been many successful cases publically reported in the past nine years or so. Nevertheless, two recent decisions from the Hong Kong Court of First Instance (HKCFI) probably can foreshadow the future trend of how Mainland judgments would be recognized and enforced in Hong Kong under the 2006 Judgments Arrangement and beyond. They could also pave the way for the possibly upcoming ‘broad’ Arrangement.

Las políticas públicas en el contexto fronterizo de Norte de Santander

El análisis del desarrollo de las políticas públicas para el comercio internacional en la frontera de Norte de Santander, permite describir las políticas relacionadas al interés investigativo en el contexto fronterizo, caracterizar el desarrollo de las políticas públicas para el comercio internacional a la luz de la normativa vigente nacional como también analizar la responsabilidad social de una política pública para el mismo, en la frontera, con el propósito de plantear una guía pedagógica de las políticas públicas para el comercio internacional, orientadora en el campo educativo, se constituyeron en el interés particular del proyecto.. La normativa nacional para el tema desarrollado arroja resultados del quehacer, y para la interpretación de lo que existe en la zona fronteriza de Norte de Santander. La investigación descriptiva y de campo permitió la consolidación de lo propuesto y el acercamiento de la importancia de las políticas públicas en materia comercial específicas para esta región.

Mutual Trust and Cross-Border Enforcement of Judgments in Civil Matters in the EU: Does the Step-by-Step Approach Work?

Mutual trust is one of the cornerstones of cooperation in the field of European Union private international law. Based on this principle the rules on the cross-border recognition and enforcement of judgments in the European Union are still subject to simplification. The step-by-step approach of the implementation of this principle led to the abolition of the exequatur, often accompanied by a partial harmonization of enforcement law to improve and support the smooth working of cross-border enforcement without exequatur. In this regard, it seems that the Member States still want to have control over the ‘import’ of judgments which results in maintaining the ground for non-recognition and the possibility of relying on them in the Member State of enforcement. This article considers the implementation of the principle of mutual recognition in three areas of justice: civil and commercial matters, family law and maintenance. In these areas the European Union legislator has chosen three different approaches for the implementation of this principle.

Sharīʿa Debates and Fatwas among Nomads in Northern Kazakhstan, 1850–1931

Legal debates among Kazakh nomads and on the Kazakh steppe more broadly have, for the most part, addressed the effects of Russian colonial policy on the administration of law among these nomads. The official and scholarly Russian fixation on Kazakh customary law, based largely on a tendentious categorization of Kazakh Muslims as quasi-shamanists, resulted in policies designed to separate Islamic law (sharīʿa) from customary law (ʿādat), and to suppress the role of sharīʿa in the areas of criminal and civil law. As Muslims, however, Kazakh nomads were directly affected by sharīʿa debates taking place both among Tatar scholars in their midst as well as among Kazakh scholars. These discussions, which occurred largely outside the field of vision of Russian officials or officially-mandated customary law courts, have so far eluded scrutiny. Recorded primarily in recently-published biographical dictionaries of Muslim scholars on the steppe, these discussions addressed a range of issues, including questions of ritual, but also, more significantly, the application of Islamic legal norms to commercial matters.

The Investigation of Obligatory Bail Contract from the Perspective of General and Particular Law Scholars

Bail is an important element of legal jurisprudence that its establishment has a long history. The scope of this contract is to the extent that is seen in almost all civil, criminal, commercial, intellectual and political matters. This legal institution today as one of the most common supporting arrangements is used for both private contracts and the judicial authorities. Due to the realization of this contract, the bailsman will be required to fulfill promised obligations. Obligatory bail includes those cases that cause the contracts lost the legal and contractual aspects and takes ruling and obligatory role. The necessity of this discussion arises from the need that the perpetrators of various crimes that in some cases encounter arresting and imprisonment escape in different ways and are excluded from the scope of justice and law enforcement. Since committing any crime has its own punishment, whether in the second case, another person that escaped wrongdoer is considered the same punishment or other legal actions will be with him? In this study, we investigate the causes and principles of this sentence.

The UK Supreme Court on jurisdiction over successive CMR Convention carriers and European Union rules

This article discusses a recent decision of the UK Supreme Court on jurisdiction over successive road carriers under the CMR Convention and whether, and to what extent, the European Rules of the Brussels I Regulation Regime on jurisdiction and the recognition and enforcement of judgments could also be applicable in this context. The judgment is welcomed as clarifying the application and exclusivity of the jurisdictional rules of Article 31.1 of the CMR over each successive road carrier in case of a claim by cargo interests. The article sets out the reasoning of the court on all the submissions made to it, although the emphasis of the article is placed on the interaction of the Brussels I Regime with specialized transport conventions. The UK Supreme Court s decision is set into context with prior case law of the CJEU and a broader discussion of the principles underlying judicial co-operation in civil and commercial matters. It is argued that while the importing of European principles as a ‘second stage’ approach in matters of lis pendens or enforcement in intra EU cases is apt to ensure the functioning of the internal market, the overriding of ‘first stage’ jurisdictional rules of specialized conventions ought to be avoided, in order not to endanger the principles of predictability as to the courts having jurisdiction and certainty for litigants, with clear implications for international harmonization within and beyond European boundaries.

European Union Regulations concerning the breach and cancellation of contracts

This article intends to analyze in European Private International Law how Regulation (EU) n° 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), very often called Brussels I bis Regulation, determines which Court of a Member State of the European Union may have jurisdiction for the resolution of disputes concerning a breach or cancellation of a contract. But it also describes afterwards how Regulation (EC) n° 593/2008 on the law applicable to contractual obligations, called Rome I Regulation, decides on the law applicable to such disputes.

Alternative Mechanisms of Dispute Settlement Involving Individuals

In the last decades of the 20th century, ‘the access of individuals to international justice’ has drastically expanded in practice notably within the international regimes for protection of human rights. On the other hand, alternative dispute resolution (ADR) has not been consciously discussed as another mechanism of international justice accessible for individuals. ADR (Modes alternatifs de resolution des conflits (MARC) in French) is in fact a confusing expression. The rapid rise of the worldwide popularity of ADR in recent years can be explained by the speed by which it can handle disputes, low and often fixed fees, confidentiality, informality, freedom of abandoning the process at any stage, and the possibility to mutually choose the intervening third party. For these reasons, the use of ADR has become pervasive, especially in disputes involving private parties for cross-border civil and commercial matters. Considering these advantages and institutional developments, ADR can also create a new trend in resolving international dispute of public nature. Firstly, the general concept of ADR itself is not novel but traditional because resolving disputes without using the court is a long-established practice froma historical and inter-cultural perspective. Secondly, the preference for negotiation suggests that ADR may provide stronger satisfaction for disputing parties than adjudicative proceedings, especially in the context of individual’s access to justice. Based on these two insights, the present chapter examines different types of ADR mechanisms for disputes which involve one or more States. In order to identify how the most satisfactory resolutions can be achieved in particular contexts, this paper examines the scope of ADR, which is extremely large because ADR may include any kind of method for dispute settlement outside of the court: it may include any social methods rooted in the traditions, culture, and history, which take divergent forms from one society to another and reflect socio-cultural elements in order to provide better satisfaction for disputing parties. Unlike what is generally discussed for ADR, the present paper sheds light on the institutional aspect of ADR rather than its methodologies or techniques. This is because discussing ‘mechanisms’ as an entire process of international dispute settlement can better describe the access of individuals to international proceedings and remedies. In this sense, the alternative mechanisms ought to be understood as a set of communications. By vindicating a legal mechanism comprising several phases in a certain field of international law, this article promotes, elucidates, and refines a social theory of international legal dispute settlement outside the court room and addresses some of the practical questions that it raises.

Разрешение хозяйственных споров в Италии: краткий обзор

The article contains the outline of the commercial litigation implemented in Italy taking into account the relevant amendments and changes adopted with the aim of rendering a “faster” justice. The author describes the Italian judicial system which involves courts of first instance (Giudice di Pace/Tribunale), the Court of Appeal (Corte d’Appello), and the Supreme Court or the Court of Cassation (Corte di Cassazione), indicating the statutorily prescribed criteria for referring a specific category of cases to the jurisdiction of each of those. The author dwells on the stages of civil proceedings, which include: pre-trial hearings, civil proceedings and judgment, appeal and cassation stages, as well as enforcement of judgments and orders. The special attention is paid for the procedure of the recognition and enforcement of foreign judgment and arbitration awards used in Italy. The author notes the tendency for a gradual replacement of the most of the old bilateral treaties in Europe by the European Regulations, at least in civil and commercial matters.