scholarly journals The Significance of Central Bank of Malaysia Act to Islamic Banking

2019 ◽  
Vol 6 (4) ◽  
pp. 158-180
Author(s):  
Aishath Muneeza
Keyword(s):  
Central Bank ◽  
Case Law ◽  
Legal Framework ◽  
Legal Issues ◽  
Advisory Council ◽  
Islamic Banking ◽  
Legal Research ◽  
Or Practice ◽  
To Come

Malaysia is considered as the cranium of Islamic banking. The purpose of this paper is to find out the significance of Central Bank of Malaysia Act (CBMA) to Islamic banking by analysing the relevant provisions of CBMA and the reported case law in Malaysia in this regard. This is a legal research where the provisions of this Act relevant to Islamic banking is reviewed and assessed in the light of reported case law. It is found that there is a need for the legislature to come up with the specific directions or practice notes in which Shariah issues of the case could be differentiated from factual issues/legal issues. It is hoped that the outcome of this paper will assist those jurisdictions aspiring to have a sophisticated legal framework for Islamic banking to comprehend the significance of having statutory provisions to establish the apex Shariah Advisory Council at the Central Bank level.

scholarly journals THE APPOINTMENT OF MEMBERS TO THE SHARIAH ADVISORY COUNCIL OF CENTRAL BANK OF MALAYSIA: LEGAL ISSUES

2017 ◽  
Author(s):  
Mohammad Azam Hussain ◽  
Rusni Hassan ◽  
Alias Azhar ◽  
Aznan Hasan
Keyword(s):  
Central Bank ◽  
Research Methodology ◽  
Analytical Method ◽  
Islamic Law ◽  
Legal Issues ◽  
Advisory Council ◽  
Islamic Finance ◽  
Legal Research ◽  
Statutory Requirement ◽  
The Future

Abstract: In Malaysia, the appointment of members to the Shariah Advisory Council (SAC) of the Central  Bank  of Malaysia (CBM) is prescribed by the Central Bank of Malaysia Act 2009 (Act 701). The Act stipulates the provisions pertaining to the eligible persons to be appointed to the SAC, procedures, terms and conditions of appointment and also remuneration and allowances for the members of the SAC. In this regard, the question arises whether the prescribed provisions are sufficient to regulate the appointment of members to the SAC and free from any shortcomings. Hence, this study sought to analyse the existing legislations governing the appointment of members to the SAC and to analyse the legal issues arising from the existing legislations. By using legal research methodology, this article analysed the entire provisions dealing with the appointment matter. Based on the data collected from statutes passed by the Parliament of and Malaysia published materials, the analytical method was used by scrutinizing the related provisions of the law pertaining to the appointment of members to the SAC. This study found that, several loopholes  exist  in  the  statutory requirement of the existing law which needs to be addressed by the respective authoritative body in order to avoid any legal conflict in the future. Hence this study is significant in order to strengthen the existing legislation governing the SAC especially related the appointment process.   Keywords: Shariah advisory council, Shariah advisor, Islamic finance, Islamic law, Central Bank of Malaysia Act 2009.   Abstrak: Di Malaysia, pelantikan anggota Majlis Penasihat Shariah (MPS) Bank Negara Malaysia (BNM) ditetapkan oleh Akta Bank Negara Malaysia 2009 (Akta 701). Akta menetapkan peruntukan-peruntukan berkaitan orang yang layak untuk dilantik menganggotai MPS, prosedur, terma dan syarat-syarat perlantikan dan juga saraan dan elaun anggota-anggota MPS. Dalam hal ini, persoalan timbul sama ada peruntukan yang ditetapkan memadai untuk mengawal selia pelantikan anggota MPS dan bebas daripada sebarang kekurangan. Kajian ini bertujuan untuk menganalisis undang-undang sedia ada yang mentadbir pelantikan anggota MPS dan untuk menganalisis isu-isu undang-undang yang timbul daripada undang-undang sedia ada. Dengan menggunakan metodologi penyelidikan undang-undang, artikel ini menganalisis keseluruhan peruntukan yang berkaitan urusan pelantikan anggota MPS. Berdasarkan data yang telah kumpul daripada statut-statut yang diluluskan oleh Parlimen Malaysia, kaedah analisis telah digunakan dengan meneliti peruntukan-peruntukan undang-undang yang berkaitan pelantikan anggota MPS. Kajian ini mendapati bahawa, beberapa kelemahan wujud dalam kehendak statut dalam undang-undang sedia ada yang perlu diberi perhatian oleh pihak berkuasa yang berkaitan dalam usaha mengelak daripada berlaku sebarang konflik undang-undang pada masa hadapan. Oleh itu, kajian ini adalah sangat penting untuk mengukuhkan undang- undang sedia ada yang mengawal selia MPS terutamanya berkaitan proses pelantikan.   Kata kunci: Majlis Penasihat Shariah, Penasihat Shariah, Kewangan Islam, Undang-undang Islam, Akta Bank Negara Malaysia 2009.

scholarly journals ARBITRATION AS A MECHANISM TO RESOLVE ISLAMIC BANKING DISPUTES IN MALAYSIA: CHALLENGES AND DRAWBACKS

2019 ◽  
Vol 10 ◽  
pp. 19-44
Author(s):  
Mohamad Fateh Labanieh ◽  
Mohammad Azam Hussain ◽  
Nazli Mahdzir
Keyword(s):  
Dispute Resolution ◽  
Research Methods ◽  
Legal Framework ◽  
Advisory Council ◽  
Islamic Banking ◽  
Court System ◽  
Legal Research ◽  
Finance Industry ◽  
Tremendous Progress

Malaysia has shown tremendous progress in the arena of Islamic banking and the finance industry, and has become an essential Islamic financial hub within the region. The comprehensive legal framework consisting of legislation and dispute resolution mechanisms have been crucial elements that ensured the robust development of the industry. The court system and arbitration are two significant platforms for the settlement of Islamic banking disputes that are brought before them. However, the court system has been widely favoured compared to the arbitration, even though both approaches have almost identical roles. Therefore, one question arises; why is arbitration less preferred compared to the court system? By using legal research methods, this article seeks to analyse the challenges and drawbacks that faces the current arbitration framework when dealing with Islamic banking disputes. This study suggests that the Malaysian arbitration framework faces several challenges such as, issues regarding high-cost, high-formality, less-speed, and the uncertainties when referring any Shariah matters to the Shariah Advisory Council. This article suggests that some improvements should be made by the relevant authorities and establish the necessary statutory amendments to strengthen the role of arbitration in Malaysia as a complementary forum to the court system in settling Islamic financial disputes.

Arah Kebijakan Pengawasan terhadap Perbankan Syariah dalam Sistem Perbankan Nasional di Indonesia

2020 ◽  
Vol 3 (1) ◽  
pp. 41-52
Author(s):  
Andrew Shandy Utama
Keyword(s):  
Central Bank ◽  
Financial Services ◽  
Banking System ◽  
Islamic Banking ◽  
Legal Research ◽  
Islamic Bank ◽  
Independent Direction ◽  
National Banking System

This research aims to explain the direction of policy regarding supervision of Islamic banking in the banking system in Indonesia. The method used in this research is normative legal research using the statutory approach. The results of this research explain that the policy regarding supervision of Islamic banking in the national banking system in Indonesia is headed toward an independent direction. In Law Number 7 of 1992 and Law Number 10 of 1998, it is stated that supervision of Islamic banking is done by Bank Indonesia as the central bank. Based on Law Number 21 of 2008, supervision of Islamic banking is strengthened by not only being supervised by Bank Indonesia, but also by the National Sharia Council of the Majelis Ulama Indonesia by placing Sharia Supervisory Councils in each Islamic bank. After the ratification of Law Number 21 of 2011, supervision of Islamic banking moved from Bank Indonesia to an independent institution called the Financial Services Authority.

Islamic finance arbitration: enforceability under the New York Convention 1958 of arbitration awards made following a reference to the Shariah Advisory Council under the Central Bank of Malaysia Act 2009

2019 ◽  
Vol 35 (2) ◽  
pp. 245-261
Author(s):  
Abdullah Abdul Rahman
Keyword(s):  
New York ◽  
Central Bank ◽  
Research Method ◽  
Advisory Council ◽  
Islamic Finance ◽  
Legal Research ◽  
Financial Transaction ◽  
Arbitration Clause ◽  
New York Convention ◽  
Governing Law

Abstract This article analyses the enforceability of arbitration awards, rendered following a reference to the Shariah Advisory Council of the Central Bank of Malaysia under sections 56 and 57 of the Central Bank of Malaysia Act 2009, under the New York Convention 1958 which has been adopted in 159 countries. This article employs the theoretical legal research method and has compared sections 56 and 57 against the requirements of the Convention for enforceability of awards, in particular the fundamental attributes of an arbitration. The conclusion is that such awards would not be enforceable under the Convention as they infringe Article V(1)(d) of the Convention. This would cause such awards to lose the feature of global and convenient enforceability usually attached to arbitration awards. These consequences make it less attractive, where there is an arbitration clause in the Islamic financial transaction documentation, to choose the Malaysian law as the governing law whether with regard to the substantive merits or the arbitration proceedings. This article recommends that amendments be made to sections 56 and 57 to make the reference to the Shariah Advisory Council optional rather than mandatory and its ruling advisory instead of binding, in respect of arbitration only, so that the global enforceability of such arbitration awards under the Convention is not undermined.

scholarly journals Methodology on the Trend of Underlying Shariah Contracts and Legal Disputes of Decided Islamic Banking Cases in Malaysia

2019 ◽  
Vol 8 (3S3) ◽  
pp. 19-24
Keyword(s):  
Risk Management ◽  
Comprehensive Analysis ◽  
Legal Issues ◽  
Islamic Banking ◽  
Legal Research ◽  
Legal Risk ◽  
Banking Institutions ◽  
Phases Of Development ◽  
Court Process ◽  
Limited Scope

The general reflection of certainty and predictability in the decisions of the courts could be traced from the trend of decided Islamic Banking cases itself. Some studies highlighted the trend in decided Islamic Banking cases but not in detail, with a limited scope of discussion and did not cover the current and the latest decided cases. The objective of this paper is to provide a comprehensive analysis on the decided Islamic Banking cases in Malaysia of year 1987 to 2018 in order to find out the trend of underlying Shariah contract and legal disputes. The method employed in this study is the legal research through the analysis decided Islamic Banking cases in Malaysia. This paper highlights the underlying Shariah contracts that attract numerous judicial consideration and legal disputes in different phases of development in Islamic Banking cases. The diversification underlying Shariah contract and the complexity of legal issues could be traced in the more recent decided Islamic Banking cases. Moreover, the findings contribute to the enhancement of disputes resolution outcomes through court process and improvise the Shariah compliance and legal risk management of Islamic Banking Institutions

The Weiss judgment: The Court’s further clarification of the ECB’s legal framework: Case C-493/17 Weiss and others, EU:C:2018:1000

2019 ◽  
Vol 26 (3) ◽  
pp. 449-465
Author(s):  
Annelieke AM Mooij
Keyword(s):  
Central Bank ◽  
European Central Bank ◽  
Case Law ◽  
Legal Framework ◽  
Euro Crisis ◽  
European Central ◽  
Court Of Justice ◽  
Short Summary ◽  
European Court ◽  
Grand Chamber

In December 2018, the Grand Chamber of the European Court of Justice delivered its judgment in the Weiss case. This case is the most recent development in the Euro crisis case law. The financial crisis has shown the difficulty in determining the precise limits to the mandate of the European Central Bank. The Gauweiler case provided a legal framework but also left unanswered questions. This contribution will first provide the background to the Euro crisis and the context of the case then continue by giving a short summary and analyses of the Opinion of the Advocate General and the judgment of the Court. Finally, a reflection will be given on what lessons can be taken from the Weiss case. As the Weiss case appears to be last in Euro crisis case law, this reflection will include an overall analysis of the current interpretation of the mandate of the European Central Bank post-Euro crisis.

What Regulation for Virtual Organizations?

2011 ◽  
pp. 318-339 ◽  
Author(s):  
Claudia Cevenini
Keyword(s):  
Interdisciplinary Approach ◽  
Case Law ◽  
Third Parties ◽  
Virtual Organizations ◽  
Legal Issues ◽  
Legal Research ◽  
Preliminary Step ◽  
Legal Implications ◽  
Definition Of ◽  
Complex Subject

Virtual organizations are a complex subject which requires an interdisciplinary approach. In the absence of specific legislation, consolidated doctrine and case law, jurists can resort to three main cornerstones: agreements between members and with third parties, analogical application of laws in force, and informal rules and trade usage. The preliminary step is to define the object of analysis as clearly as possible by building a model definition of virtual organizations for the legal research. On the basis of the model’s features, the most relevant legal issues can be outlined. At present, owing to the very nature of VOs, no definitive solutions are possible. However, some basic indications can be provided to enable potential and effective partners of a VO to understand from the start the possible legal implications of their activities.

scholarly journals THE ESTABLISHMENT OF THE SHARĪᶜAH ADVISORY COUNCIL OF CENTRAL BANK OF MALAYSIA: SPECIAL REFERENCE TO SECTION 51 OF CENTRAL BANK OF MALAYSIA ACT 2009 (ACT 701)

2020 ◽  
Vol 5 (21) ◽  
pp. 257-266
Keyword(s):  
Central Bank ◽  
Qualitative Method ◽  
Legal Aspect ◽  
Organization Structure ◽  
Advisory Council ◽  
Primary Data ◽  
Legal Interpretation ◽  
Legal Basis ◽  
Legal Research ◽  
Statutory Requirement

Sharīᶜah Advisory Council which established under the aegis of the Central Bank of Malaysia (CBM), is designated as the highest authoritative body for the ascertainment of Sharīᶜah ruling in the matters of Islamic financial business. This apex advisory council is currently regulated by the Central Bank of Malaysia Act 2009. Hence the establishment of this council is pursuant to the statutory requirement. This article seeks to analyse the statutory requirement of Section 51 pertaining to the establishment of the Sharīᶜah Advisory Council of Central Bank of Malaysia. This is doctrinal legal research with the qualitative method. The primary data of statutory provisions were scrutinized by using the method of content analysis. The study found that there are several deficiencies of the provision in dealing with the establishment of Sharīᶜah Advisory Council pertaining to the legal interpretation, the legal basis for the establishment of Sharīᶜah Advisory Council, the procedures to be adopted and the position of the Sharīᶜah Advisory Council within Central Bank of Malaysia’s Organization Structure. Finally, the article suggests several amendments be made by respective authorities in order to strengthen the legal aspect of the establishment of Sharīᶜah Advisory Council of Central Bank of Malaysia.

scholarly journals The Practice of Shariah Governance in Islamic Banking and Finance: A Study of Islamic Banks in Bangladesh

2019 ◽  
Vol 6 (4) ◽  
Author(s):  
Riazuddin Ahmed ◽  
Mohamad Saifullah Mohamad
Keyword(s):  
Central Bank ◽  
Empirical Studies ◽  
Education And Training ◽  
Advisory Council ◽  
Islamic Banking ◽  
Islamic Banks ◽  
Banking And Finance ◽  
The Government ◽  
Shariah Governance ◽  
And Training

This paper aims to study Shariah governance of Islamic banks in Bangladesh. Desk-based research was conducted for this paper to explore the main challenges faced by Islamic banks in the country. Based on empirical studies and newspapers, this paper concludes that there is a lack of a well-defined regulatory and supervisory framework for IFIs to function effectively in line with the tenets of Shariah. This study also finds that the shortage of Shariah scholars remains an impediment to Shariah compliance. The government and the central bank of Bangladesh should pay greater attention to education and training, in addition to creating a national Shariah advisory council to monitor Islamic banking and financial activities in Bangladesh.

Execution of Security Rights in Islamic Banking at The Religious Court of Purbalingga

2016 ◽  
Vol 1 ◽  
pp. 287-297
Author(s):  
Nita Triana
Keyword(s):  
Field Research ◽  
Economic Security ◽  
Islamic Banking ◽  
Actual Situation ◽  
Legal Research ◽  
Security Interest ◽  
Final Verdict ◽  
Islamic Economic ◽  
Religious Courts

This article examines the execution of a security interest in Islamic banking in the Islamic economic disputes in  the  Purbalingga  Religious  Court. The case of non-performing loans in the world of Islamic banking is often the case, this was due to the debtor defaults. Mortgages used as collateral can be executed based on the decision of the Religious Court. The method used in this research is a kind of field research with the approach of Socio Legal Research, including in the realm of non-doctrinal study. The results show the execution of a security interest in dispute sharia economy in Purbalingga Religious Court has been run in accordance with the mandate of the Act: On the substance of the Implementation of the decision of execution is the end of a case that is the result of what is required by the plaintiff are determined in a court of Religion with using the guidelines do not separate from the disciplinary proceedings contained in HIR or Rbg. On the  Structure  of  Purbalingga Religious Court  carry out executions by institutions that are available from the start to the filing of the petition to the Chairman of the Religious Courts, judges who will examine the final verdict, Executor who will call and will execute and when the auction Clerk role of the mentor  State Property Office and Auction (KPKNL). Culturally law. Purbalingga Religious Court  carry out the execution-based approaches to religion and culture. This approach proved to facilitate execution. Obstacles that faced in general, form, creditors often receive a guaranteed land and buildings where the land certificate is no longer appropriate to the actual situation, the Debtor is not willing to leave the place right dependents, barriers to the sale of objects auction execution which does not go unsold objects auction / auction. Constraints that normally occurs in the execution of this economic security rights dispute, can be resolved by various reinforcement structures / institutions and culture through the law chosen by the Purbalingga Religious Courts.

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