Abstract

The parties to an international commercial/financial contract may choose a single law or a combination of laws like English law and Islamic law to settle their dispute that may arise therefrom. At the same time, they may choose a forum (law court or arbitral tribunal) belonging to an Islamic jurisdiction. Such a choice of law and forum deserve a theoretical inquiry from Islamic perspective since it gives rise to two important issues. First, if the choice is a single secular law and it conflicts with Shari'ah law in full or in part, then how the forum will reconcile the conflicts. It has to handle again the same issue where the choice is a combined one. Second, if the applicable law is solely Shari’ah, then the forum has to decide which school's (madhhab) fiqh (jurisprudence) will apply. This paper is a purely theoretical attempt to answer these two questions.

This paper will be part of the TDM Special Issue on "Islamic Finance and Dispute Resolution". More information here www.transnational-dispute-management.com/news.asp?key=1832