The real estate legislative system is one of the bases of the sustainable development process. This research focuses on the role of the legal system in sustainable development, according to the most prominent relevant international reports. The uae ranked forty-first globally in the Human Development Index (hdi). In the World Bank’s ‘Doing Business Report’, the uae ranked second globally and first in the Middle East and North Africa (mena) for the ‘Dealing with Construction Permits’ indicator. Thus, the Emirate of Dubai is deemed the second-best city in the world in terms of ease of dealing with construction permits. For the ‘Registering Property’ indicator, the uae ranked tenth globally and first in the Middle East and North Africa (mena). Despite the uae’s great achievements in terms of developmental ranking at the global level, there is still more to achieve in the field of development.
This article reveals the different formative layers at work in a mixed system of law, such as that of private law in the United Arab Emirates (uae), by focusing on the lack of coherence between competing ‘architectural principles’. This experience of friction is regularly encountered by a skilled interpreter of the law, in the course of his/her activity of ensuring predictable and appropriate legal responses to practical problems. Specifically, this piece tracks the interpretive difficulties surfacing in cases of supervening impossibility of performance for loss or damage to a necessary item, when that loss or damage originates in a causal factor outside of the defendant’s sphere of control (‘extraneous cause’). In such cases, the contract is terminated and the legal question shifts to one of awarding compensation for the loss or damage suffered by the item. In the face of this question, two competing criteria for assigning liability come into play. On the one hand, the civil law distinction between unilateral and bilateral contracts, meaning contracts giving rise to obligations upon only one or both parties to the contract. On the other hand, the categories of trust-based, liability-based and mixed possession in Islamic law. Here, liability is assigned based on the material circumstances that define the manner of possession, as opposed to looking at the abstract scheme of performance and (if available) counter-performance. The categories drawn from Islamic law have the potential to unify a number of apparently scattered provisions in the uae Civil Code: for this reason, the article puts forth a recommendation to follow the approach of the Iraqi Civil Code and acknowledge those categories as an explicit organising principle for assigning liability in the presence of an extraneous cause. The paper makes an additional recommendation to treat the classification of possession (as trust-based or liability-based) as a matter of public policy, unavailable for the parties’ consensual deviation.
The Islamic legal enterprise forms an inherently plural system that can appear puzzling to commentators looking for faithfulness to principle or precedent. When one looks at it, instead, as an ongoing search for correspondence between divine guidance, rooted in the foundational sources of Islam, and the singularity of concrete circumstances, Islamic law is revealed as a practice of discernment against the grain of the particular. This article unfolds this approach to understanding Islamic law by entering the conversation where it is currently most heated, namely in connection with the development of Islamic financial products. A case study of takāful regulation in the United Arab Emirates (UAE) helps substantiate the import of our proposal for attuning to the voice of Islamic jurisprudence (fiqh), in the face of contemporary questions arising from the design of financial products in correspondence with the Sharī’ah.
Purpose This paper aims to survey the screening practices and regulatory arrangements that can be gleaned from the experience of Islamic financial indices on international stock markets. Such indices can be regarded as experiments in the demarcation of “pockets” of Sharī‘ah-compliant securities exchange, in the context of non-Sharī‘ah-compliant stock markets. They offer valuable regulatory precedent, with a view to the development of a transnational domain of Islamic financial transactions. Design/methodology/approach The paper leverages the experience of Islamic financial indices for charting the fault lines between the foundational principles of Islamic finance, and those of interest-based investment commonly accepted on international financial markets. It subsequently reviews the most salient regulatory arrangements in place for discriminating between permissible and forbidden securities and modes of trading, as implemented on Islamic financial indices. These include selection criteria for index inclusion, and Sharī‘ah committees with ex ante and ex post supervisory duties. Findings The paper makes a case for viewing Islamic finance indices on international capital markets as capacity-building experiments for the regulation of transnational Islamic financial flows. Originality/value The study rejuvenates the pragmatic approach towards the development of Islamic capital markets, by suggesting that incremental organisational innovations, as developed in connection with Islamic financial indices, can build institutional capacity towards an economy that abides by Islamic values.
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