Chapter II. Internal limits to party autonomy : the interaction of the contract with the governing law

The globalisation of Islamic finance has brought the adjudication of Islamic finance disputes before non-Muslim courts and arbitral tribunals in Europe, America and elsewhere. Expectedly, the issue of the validity of the selecting Islamic law as the governing law of an Islamic finance contract often arises before these courts and tribunals. The article seeks to address the attitude of the United Kingdom and Nigerian courts to this unique problem. The thesis of the paper is that while the parties’ reasonable expectations in having their Islamic finance contracts governed by the Shari’ah may be met in Nigeria and by extension in other Muslim-majority countries, the contrary is the case in the United Kingdom and Europe where the courts do not generally favour the application of Islamic law. The paper advocates that the doctrine of the proper law of contract should be extended to Islamic finance by upholding Islamic law as the law selected by the parties (on the basis of party autonomy) or alternatively, as the system of law with which an Islamic finance transaction is most closely connected.

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PENYELESAIAN SENGKETA PENGALIHAN SAHAM PERUSAHAAN PEMBANGKIT LISTRIK ENERGI PANAS BUMI MELALUI PUTUSAN ARBITRASE ASING (SIAC)

Jurnal Magister Hukum Udayana (Udayana Master Law Journal) ◽

10.24843/jmhu.2015.v04.i01.p03 ◽

2015 ◽

Vol 4 (1) ◽

Author(s):

I Gusti Agung Ayu Gita Pritayanti Dinar

Keyword(s):

New York ◽

Ad Hoc ◽

Party Autonomy ◽

Binding Force ◽

Legal Implications ◽

Arbitration Procedure ◽

The Subject ◽

Materials Used ◽

New York Convention ◽

Governing Law

Arbitration is one of popular means to solve disputes arise between parties in international business nowadays. Arbitration characteristics such as: confidentiality; “party autonomy” (principle which gives both parties freedom to agree on arbitration institution or ad hoc arbitration, to appoint an arbitrator, arbitration procedure, place of arbitration, governing law) and also international enforceability due to the New York Convention 1958 are regarded as part of the main advantages of arbitration. This research is a normative law using concept analysis approach legal, regulatory approaches undertaken by examining legislation relevant to the issues of law and experiences to approach a case of transfer of shares Bali Power Corporate. Sources of legal materials used in this study are such as related literature, journals, articles and thesis that are relevant to the subject matter. The results of this study indicate that partial award (SIAC) has a binding force for the parties to the dispute. Legal implications arising from this decision that the party whose breach the contract has an obligation to replace the damage of PT. Bali Tenaga Corporate since the contract was signed.

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Should the Discussion on Whether Non-state Law might be Elected as the Governing Law of Contract be Silenced Forever?

Universal, Regional, National – Ways of the Development of Private International Law in 21st Century ◽

10.5817/cz.muni.p210-9497-2019-4 ◽

2019 ◽

pp. 81-99

Author(s):

Lukáš Grodl

Keyword(s):

European Union ◽

State Law ◽

The European Union ◽

Choice Of Law ◽

Party Autonomy ◽

Cross Border ◽

Positive Law ◽

European Development ◽

Governing Law ◽

Rome I

While the extent of the choice of law governing the cross-border contract is subjected to positive law, in the European Union being the Rome I Regulation, some always argued for expanded party autonomy regarding the non-state law. The European Commission proposed the incorporation of such in Rome I Regulation, but it has been ultimately rejected. This article considers the European development, debates whether discussion on non-state law being allowed as the governing law to a cross-border contract is still vital and provides an answer whether discussion on such should be ended or not.

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