Waqf

2020 ◽  
pp. 37-55
Author(s):  
Hassan Syed ◽  
Sema Yilmaz Genç
Keyword(s):  
Family Law ◽  
Common Law ◽  
Islamic Finance ◽  
Property Law ◽  
Islamic Jurisprudence ◽  
Islamic Countries ◽  
The Common ◽  
Trust Law ◽  
British Colonies

Modern Islamic Finance and Banking is competing with the conventional banking on many levels. There are tensions between the definitions of ‘Riba ' and ‘Hiyal' that continuously stress the need for Islamic Sharia Boards to update the Sharia Compliance for their products. The concept of ‘Waqf' is the Islamic concept of an endowment Trust. The pious aim of the Waqf is to allow endowment for a specific purpose that must be ‘Halal'. The leading Islamic countries for the purposes of having vibrant Islamic Finance and Banking economies are predominantly past British colonies. These Islamic countries have rich Common Law heritage that guides their Constitutions as they exist today. The Common Law guidelines for Family Law, Inheritance, and Property Law also influence the Sharia compliance framework for contemporary Islamic Finance in those countries. This chapter examines the existing Islamic jurisprudence on Waqf and its influence on Common Law trust, and argues for its revival as the Islamic Trust Law.

British Virgin Islands

2020 ◽  
Author(s):  
Arabella di Iorio
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Common Law ◽  
Virgin Islands ◽  
British Virgin Islands ◽  
Law System ◽  
The Common ◽  
Eastern Caribbean ◽  
Common Law System ◽  
Trust Law

The legal system of the British Virgin Islands is a common law system based on the English model, comprising statute law and binding case precedents. The principles of English common law and equity apply in the BVI (subject to modification by BVI statutes) pursuant to the Common Law (Declaration of Application) Act (Cap 13) and the Eastern Caribbean Supreme Court (Virgin Islands) Act (Cap 80) respectively. The general principles of trust law are based on English law.

Intellectual Property Law and Redressive Autonomy

2020 ◽  
pp. 161-186
Author(s):  
Shyamkrishna Balganesh
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Property Law ◽  
Private Law ◽  
Intellectual Property Law ◽  
Additional Layer ◽  
The Common ◽  
Strong Commitment

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes—known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.

Dispute Resolution in the Islamic Finance Industry

2020 ◽  
pp. 804-833
Author(s):  
Camille Paldi
Keyword(s):  
Dispute Resolution ◽  
Common Law ◽  
Legal Framework ◽  
Islamic Finance ◽  
Finance Industry ◽  
The Common ◽  
Law Courts

A unique and independent legal framework is important to effectively adjudicate Islamic finance disputes, Sukuk bankruptcies, and Takaful disputes. Currently, these disputes are being adjudicated in common law courts or ineffective arbitration centres where often the Islamic finance transaction is inadvertently converted into a conventional transaction due to the common law nature of the dispute adjudication. In this chapter, a framework is proposed for Islamic finance dispute resolution in the form of the Dubai World Islamic Finance Arbitration Centre (DWIFAC), DWIFAC Jurisprudence Office, the Sukuk Bankruptcy Tribunal (SBT) and the Takaful Tribunal (TT).

The Legacy of Empire: The Common Law Inheritance and Commitments to Legality in Former British Colonies

2011 ◽  
Vol 59 (1) ◽  
pp. 111-178 ◽  
Author(s):  
Ronald Daniels ◽  
Michael Trebilcock ◽  
Lindsey Carson
Keyword(s):  
Common Law ◽  
The Common ◽  
British Colonies

property is form of property means that what you have learnt abut property law will be of some use in this area too. Property can be divided into several different categories. There is tangible property and there is intangible: there is real property (land) and there is personal property: and there are choses in possession and choses in action. Intellectual property is a species of chose in action. It is recoverable by the owner by action. It can be owned but not possessed. However, it can be stolen: the definition of property in the Theft Act 1968 is broad enough to embrace intellectual property, though the sort of act that amounts to an infringement lacks the actus reus of theft. In fact, patents are not strictly speaking choses in action. Section 30(1) and Schedule 2 of the Patents Act 1977 reverse the common law position (see Re Heath’s Patent (1912) 56 Sol Jo 538 and Edwards and Co v Picard [1909] 2 KB 903, 905 (CA), per Vaughan Williams LJ and, on future patent rights, see Printing and Numerical Registering Co v Sampson (1875) LR 19 Eq 462) and declare that patents are not choses in action. Sir Raymond Evershed, the then Master of the Rolls, stated in 1952: ‘An English patent is a species of English property of the nature of a chose in action and peculiar in character’, British Nylon Spinners Ltd v ICI Ltd [1953] Ch 19, 26 [1952] 2 All ER 780, 783, CA, cited in the substantive hearing of the same case [1955] Ch 37, 51, [1954] 3 All ER 88, 91. See also Beecham Group plc v Gist-Brocades NV [1986] 1 WLR 51, 59, HL, per Lord Diplock. Copyright has also been expressly stated by the courts to be a chose in action. See Chaplin v Leslie Frewin (Publishers) Ltd [1966] Ch 71, [1965] 3 All ER 764, CA; Patterson Zochonis and Co Ltd v Mefarkin Packaging Ltd [1986] 3 All ER 522 (CA); Cambell Connolly & Co Ltd v Noble [1963] 1 All ER 237, [1963] 1 WLR 252. And as a leading text of its era said:

1997 ◽  
pp. 57-57
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Property Law ◽  
Real Property ◽  
Personal Property ◽  
Patent Rights ◽  
Actus Reus ◽  
The Common ◽  
Definition Of ◽  
Vaughan Williams

scholarly journals Transplantation and Mutation in Anglo-American Trust Law

2009 ◽  
Vol 10 (2) ◽  
Author(s):  
Joshua Getzler
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Property Law ◽  
Early Nineteenth Century ◽  
Simple Process ◽  
The Core ◽  
Property System ◽  
Hand Control ◽  
Anglo American ◽  
Trust Law

In the early nineteenth century, authoritative treatise writers such as James Kent and Joseph Story represented Anglo-American trust law as a seamless web. But the transplantation of trust law from England to America was not a simple process of adherence. Rather, American courts and legislatures came to discard fundamental English trust doctrines. Restraints on anticipation and on alienation were embraced, and in key state jurisdictions bare trusts were abolished, or else displaced from the core of trust law. Irreducible settlor power over beneficiaries and the strong protection of beneficiaries from creditors under spendthrift trusts were two strikingly original American creations, which flowed from these basic doctrinal choices. The changes made to American trust doctrine yield a paradox for the legal, social and economic historian, namely that republican America ended up with a more dynastic property law, more wedded to dead hand control and more hostile to commercial creditors, than did aristocratic England with its unreformed system of common law and equity rooted in the feudal property system. The American abandonment of free alienability of beneficial interests and the corresponding reduction of the beneficiary’s powers over trust assets may have been rooted in the volatility of credit in America and the desire of the wealthy to escape from the pressures of the market, though disparities between jurisdictions remain to be explained.

The Unity of Property Law

1991 ◽  
Vol 4 (01) ◽  
pp. 3-66
Author(s):  
Alan Brudner
Keyword(s):  
Common Law ◽  
Property Law ◽  
Legal Practice ◽  
Object A ◽  
Normal Product ◽  
The Common ◽  
The Law ◽  
Moral Respect

This essay defends the thesis that the common law of property exhibits an internal unity worthy of moral respect. There are three distinct elements to this claim, each of which may be elucidated through a contrast with the position it opposes. First, the unity we seek in the law of property is an internal one. This means that we unabashedly seek property law’s own unity, regarding artificial constructions as a defect of interpretation rather than its normal product. We do not set out in advance the underlying ground for the possibility of faithful interpretations of legal practice; for that ground will emerge as the unifying theme of property law and so must be methodically drawn from the object rather than baldly asserted beforehand. Nevertheless, it is possible to indicate at the outset how an internalist understanding of property law will differ from interpretations that are constructionist, or that impose on the object a unity alien to it.

Chinese Family Law in a Common Law Setting

1966 ◽  
Vol 25 (4) ◽  
pp. 621-644 ◽  
Author(s):  
David C. Buxbaum
Keyword(s):  
Family Law ◽  
Common Law ◽  
Interesting Case ◽  
Chinese Family ◽  
Social Setting ◽  
Court System ◽  
Chinese Tradition ◽  
Chinese Law ◽  
The Common

The development of Chinese family law in Malaysia and Singapore provides an interesting case study of an attempt to fuse elements of two disparate legal systems in a foreign social climate. The present court system of Malaysia and Singapore and the adjective law are based in large part upon principles of English common law, while the substantive family law applied to the Chinese people is in part a reflection of “traditional” Chinese law. These diverse legal orders function in a social setting which, although substantially influenced by Chinese tradition, is nevertheless a distinct environment, and which, on the other hand, certainly bears little resemblance to the native habitat of the common law.

scholarly journals Modernizing the Property Laws That Bind Us: Challenging Traditional Property Law Concepts Unsuited to the Realities of the Oil and Gas Industry

2003 ◽  
Vol 41 (1) ◽  
pp. 159
Author(s):  
Alicia K. Quesnel
Keyword(s):  
Oil And Gas ◽  
Common Law ◽  
Oil And Gas Industry ◽  
Property Law ◽  
Gas Industry ◽  
Strict Interpretation ◽  
The Common

Practitioners deal primarily with two different methods of interpretation in oil and gas cases: the strict method of interpretation and the liberal method of interpretation. However, in recent decisions such as Bank of Montreal v. Dynex Petroleum and Taylor v. Scurry-Rainbow Oil, the courts refused to apply the common law, instead upholding long-standing industry practices that could not be easily classified into proper legal categories. Following a review of the strict interpretation and liberal interpretation methodologies currently used in interpreting oil and gas cases, this article looks more closely at the method of interpretation used by the courts in Dynex and Taylor. This method of interpretation will be referred to as the challenging method of interpretation. The article discusses the key analytical aspects of the challenging method interpretation, and examines its possible impact on the existing methods of interpretation used in oil and gas cases. Finally, this article concludes with some thoughts about the implications of these cases on oil and gas law.

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