Band 13, Heft 2 - Special Issue (2020): Law and Development in the Islamic World; Guest Editor: Salim Farrar

Previous studies on financial development have shown that differences in the legal origin explain differences in financial development. Using historical comparisons and cross-country regressions for 40 countries observed for the period from 2005 to 2018, our research assesses how different legal origins have affected the development of Islamic finance worldwide. More particularly, our research assesses empirically why and how the adoption of Shari’a, wholly or partially (combined with common or civil law), could explain the level of development of Islamic finance in different jurisdictions. Our primary results show that countries adopting a Shari’a legal system have a very well-developed Islamic financial system. Moreover, countries adopting a mixed legal system based on common law and Shari’a law have sufficient flexibility within their legal systems to make changes to their laws in response to the changing socioeconomic conditions, and this has helped the development of the Islamic financial industry. However, countries adopting a mixed legal system based on both civil law and Shari’a law appear less flexible in making changes to their old laws and this thwarted the development of the Islamic financial industry in these countries. Furthermore, we have found that the concentration of a Muslim population (the percentage of Muslim population) along with the level of income have both had a positive effect on the development of Islamic banking assets and on the development of Islamic banking as a whole.

In this article, we examine the role and ethics of IBF in the context of development and address the critique that IBF is merely a rebranding of the conventional sector and merely exploits and further marginalises beneficiaries for profit. We focus on Islamic microfinance (IMF) in Indonesia and explore how it is applied to poverty alleviation. In addition to a review of the research to date, we perform a qualitative sociolegal study involving 27 interviews of two IMF institutions’ (BMT Muda and BPRS Mitra Syariah in East Java) beneficiaries, field staff, management and industry stakeholders. Our fieldwork investigates how institution staff members apply Islamic rules and norms when implementing programs, noting any discrepancies between the rhetoric of the Islamic ethical framework for development and the practice. We ultimately argue that while IMF is still a work in progress that would benefit from further regulatory and institutional reform, it is generating wide-ranging economic, social and spiritual benefits. We find evidence of social empowerment and brotherhood in IMF, emblematic of Islamic ethics, as well as genuine contributions to the economic and social development of Indonesia

The purpose of this article is to assess how Islamic finance can act as a vehicle to enhance the current intellectual property rights regime in the Gulf Cooperation Council (GCC). Islamic finance has developed within the constraints of sharia law and has been a growth sector for the GCC. This article will identify the main principles of Islamic finance that contribute to the success of Islamic finance, which can enhance intellectual property protection in the GCC. The main sharia-compliant areas to be considered are musharaka, mudaraba, murabaha, takaful, istisna, ijara, salam and sukuk. The article will outline the founding principles of Islamic finance, the governance of sharia boards, development of Islamic finance in the individual GCC states, different frameworks of sharia-compliant investment products and the impact of intellectual property rights on the varying Islamic finance investment tools. Furthermore, the article will discuss an integrated approach to intellectual property rights which learns lessons from the Islamic finance sector in relation to infrastructure, regulation and sharia compliance. The lessons learnt from Islamic finance will inform the overall framework of recommendations for an Islamic intellectual property model. The use of Islamic finance as a vehicle to promote better intellectual property rights in terms of defining a new intellectual property approach is novel. It is aimed at spearheading further research in this area, and it will form a part of the overall integrated approach proposals to intellectual property protection in the GCC and beyond.

The United Arab Emirates (UAE) is situated near the Persian Gulf in the North Eastern part of the Arabian Peninsula. Established in 1971 by the late Sheikh Zayed Al Nahyan, the UAE forms a federation of seven Emirates consisting of Abu Dhabi, Dubai, Sharjah, Ajman, Umm Al-Quwain, Ras Al Khaimah (The Emirate of Ras Al Khaimah had officially joined the federation on the 11 th of February 1972.), and Fujairah. Because of its diversity and cosmopolitan nature, the country has always been a crossroad and prime location for people and trade. As Islam and Islamic principles have influenced Gulf societies in the very core of its existence, the Islamic way of conduct in trade relations and dispute resolutions are an element of paramount significance. This Article explores the role of Shari’a Law and its impact on the economic development of Muslim and non-Muslim business relations in the UAE and in particular in the Emirate of Dubai. The law and development from an Islamic perspective introduces a new vision on the theories of law and development by addressing the influence of Shari’a Law in economic development. In international trade relations and dispute resolution mechanisms such as formal contract enforcements in the Dubai International Finance Centre (DIFC) and the Dubai International Arbitration Centre (DIAC) the plurality of laws leads to the adoption of Shari’a Law over the Civil and Common Law regimes.

Banks are key institutions in the economic development of a country, but they are prone to money laundering (ML) as well. Such incidents could lead to sanctions and loss of reputation. To mitigate such risks, banks are required to follow Anti-Money Laundering (AML) regulations. Presently, there are no separate or specific AML regulatory requirements for Islamic banks (IBs). Apart from regulations, understanding practices also help explicate compliance to laws (spirit), by those who apply it. Since the AML practices of IBs have not been systematically analysed, we look at their practices (the United Arab Emirates) to understand whether they have adopted specific AML processes. Owing to the lack of literature on such practices, a survey was carried out using a standard questionnaire. The questionnaire was supplied to the AML/compliance departments, and the results are based on a sample size of three banks. The survey results show that the IBs adopt Know Your Customer (KYC) and Customer Due Diligence (CDD) to check laundering. Crucially, questions pertaining to the AML risk arising from the potential vested interest/s (theoretical) that the IBs themselves are likely to have in the venture remain unanswered.

This article approaches the long-standing instability in the southernmost part of Thailand, where a vast majority of the population is Muslim, from a law and development perspective. The instability has resulted from a highly complicated conflict, of which religious and ethnic differences, political conflict, and even organized crime are generally claimed as the main causes. The article directs its attention to a sense of resentment among the Muslim population, which has arisen from enduring economic disparities and injustice they have suffered at the hands of the authorities. Addressing these two closely related issues certainly does not lead to a resolution of the conflict, but tackling them in an interrelated manner at least clarifies one of its significant aspects and contributes in a meaningful way to the ongoing search for a sustainable peace in Thailand’s southernmost region. The law and development approach we have adopted for this study attempts to show how the existing regulatory design (laws, legal frameworks, institutions) has been implemented – that is, how it has been complied with in terms of generation of action programs and strategies (in the form of security operations and development initiatives) and to what effect. Based on our findings, the quality of the implementation represents a major condition for the failure of the law and development implementation in Thailand’s Deep South. We therefore highlight the necessity of genuine political will and the enhancement of the state capacity for law enforcement through eradication of corruption and opportunistic crime as a feasible solution in this context.