Mohd Zakhiri Nor

MEKANISME PENGGUNAAN JAMINAN KEBENDAAN (RAHN TASJILY) DALAM PEMBIAYAN BANK SYARIAH DI INDONESIA DAN MALAYSIA

The main objective of this legal research is to compare the legal construction and the use of “rahn tasjily” mechanism in the Sharia bank financing between Indonesia and Malaysia through law, concept, and history approaches. The data were analyzed qualitatively by systematic interpretation and historical interpretation. The results are: 1) Both countries do not have a strong regulation in Sharia guarantees, thus the law construction is implemented by harmonization and integration between Sharia principles and conventional regulations (civil). The differences are in the concept, the division of rahn, and the law substance in the Sharia banking complement regulation. 2) The mechanism is also different, where in Indonesia the guarantee should be bound by an authentic certificate (notary) and registered in the authority institutions in order that Sharia bank (murtahin) obtains a strong law protection beside an insurance. While in Malaysia, the use of collateral is only included in the financing contract without an authentic certificate; the registration is not compulsory and the ownership proof of guarantee (marhun bih) as well as the object is in rahin permanently (except a land); and the collateral strength for Sharia bank is an insurance.

Challenges Affecting the Adjudication of Islamic Finance Cases in the Malaysian Courts

The Islamic banking and finance industry in Malaysia is developing progressively, primarily due to the concerted effort from the regulators and the industry players alike. The Islamic funds are increasing over the years and more innovative products are introduced for the benefit of the consumers. In some situations, disputes arise relating to the Islamic finance matters, and they end up for the adjudication of the courts system. However, there have been debates as to the challenges affecting the adjudication of such cases in the Malaysian courts. Engaging in library-based research, this paper outlines the various challenges affecting the adjudication of Islamic finance cases in the Malaysian courts, involving both legal and operational aspects of the implementation of Islamic finance business in the nation. The challenges include the legal infrastructure puts Islamic finance cases within the jurisdiction of the conventional legal framework, Islam is separated from the administration of justice, different roles played by different components of Islamic finance, separate laws govern the different components of Islamic finance, confusion caused by the building blocks of the legal documentation and the question as to the competency of civil court judges. Accordingly, the future direction of the research is to propose recommendations for the management or dissolution of these challenges, towards better settlement of the Islamic finance cases by the courts.

Cross-country analysis of Islamic finance dispute resolution: Malaysia and Saudi Arabia

Islamic banking and finance have gained popularity all over the world. However, differences of opinions and understandings could trigger potential disputes and misunderstandings, even for the area of Islamic banking and finance. Some of the disputes as settled by resorting to litigation, while others are resorted to out-of-court settlements. Drawn from an ongoing research, this paper aims to highlight the cross-country analysis of the related dispute resolution frameworks between Malaysia and Saudi Arabia. The analysis is tackled along the lines of the background and the constitutional frameworks for each country, the respective dispute resolution structures, and analysis of selected cases on Islamic finance disputes. The paper concludes by describing the similarity and difference points of the dispute resolution of Islamic finance cases between the two countries, and also by suggesting directions for future research in this area.