Sharī‘ah court-annexed dispute resolution of three commonwealth countries – a literature review

Abstract

Purpose -The purpose of this study is to examine the legal framework for court-annexed dispute resolution in courts with Sharī'ah jurisdiction in Nigeria, Malaysia and Singapore. The major part of the study is dedicated to propose reforms in the administration of justice system in the courts with Sharī'ah jurisdiction in Nigeria and the relevance of such reforms to the ongoing reforms in the Middle East and North African (MENA) countries. Design/methodology/approach -This is an integrative literature review, which adopts a comparative approach in analyzing the conceptual framework of amicable dispute resolution in the modern world with particular reference to the Sharī'ah court. Findings -The findings of this research illustrate the adaptability of the practices in Malaysia and Singapore in the courts with Sharī'ah jurisdiction in Nigeria and the MENA region. Practical implications -An exposition of the dispute resolution processes in Islamic law reveals the relevance of these processes in modern reforms of the administration of justice system. The practical implications of this study include the streamlining of the rules and procedures of modern Sharī'ah courts in post-revolution Arab countries to allow for court-annexed amicable (alternative) dispute resolution initiatives. Originality/value -As far as it is known, this is the first conceptual study on the court-annexed dispute resolution frameworks of Sharī'ah courts in three commonwealth jurisdictions.

Hybrid Dispute Resolution in Islamic Capital Market: A Malaysian Perspective

“…Alternative dispute resolution is commonly referred to as a peaceful solution to the conflict out of court. The use of arbitration in Islamic law is largely influenced by the evolution of alternative dispute resolution in Western jurisdiction and the Ottoman legal code (Oseni 2015). Although the term "Alternative Dispute Resolution" is not commonly used in Islamic sources, Oseni and Ahmad (2016) noted that there are numerous references to amicable resolution of disputes in handling Islamic finance disputes, including Nasihah (counselling), Sulh (mediation), Tahkim (arbitration), Muhtasib (ombudsman), Wali al-Mazalim (chancellor or ombudsman judge), and Fatwa of Mufti (expert determination).…”

“…The varieties of dispute resolution processes evolved over time and transformed across Muslim communities. These dispute resolution processes were used in different forms, without escalating to a formal tribunal (Oseni 2015). According to Oseni and Ahmad (2016), dispute resolution in Islamic law includes a range of processes for amicable resolution of disputes, namely, court-annexed arbitration, out-of-court-settlement by a third-party who is capable of making neutral and objective judgements.…”

“…According to Oseni and Ahmad (2016), dispute resolution in Islamic law includes a range of processes for amicable resolution of disputes, namely, court-annexed arbitration, out-of-court-settlement by a third-party who is capable of making neutral and objective judgements. Oseni (2015) noted that there is a gradual return to the classical means of dispute resolution in modern days, especially in countries like Malaysia, Singapore, and Middle East and North African (MENA) countries.…”

“…The dispute resolution process in the Shariah court is not free from challenges, however. In Malaysia, the court-annexed alternative dispute resolution in the Shariah court faces challenges such as inadequate staff, insufficient facilities, rescission of settlement agreement, and inconsistent practice of alternative dispute resolution (Oseni, 2015).…”

“…As in other legal systems, arbitration in Islamic law is based on the mutual consent of the disputing parties, by submitting a dispute to a third-party who is neutral and objective (Oseni, 2015). Settling Islamic finance disputes outside the court is less controversial because the court is not bound to apply court of law.…”