Islamic banking dispute resolution: the experience of Malaysia and Indonesia

Hassan, Rusni and Ilias, Ibtisam @ Ilyana and Tuan Ibrahim, Tuan Nur Hanis (2022) Islamic banking dispute resolution: the experience of Malaysia and Indonesia. IUM Law Journal, 30 (S2). pp. 317-358. ISSN 0128-2530 E-ISSN 2289-7852

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Abstract

The dispute resolution mechanism in a country involving Islamic banking depends on its applicable law. A workable mechanism guarantees a harmonious settlement and ensures justice is upheld in conjunction with the spirit of Islamic law. This study aims to analyse various mechanisms to resolve Islamic banking disputes in Malaysia and Indonesia by referring to the latest legal and judicial developments in both jurisdictions. It adopts doctrinal and comparative legal research methodology whereby the relevant primary and secondary sources of law were meticulously appraised. Findings of this study reveal that both countries have their own unique way of dealing with Islamic banking and finance cases. In Malaysia, the jurisdiction is vested in civil courts with mandatory reference to the SAC in deciding Shari’ah issues. Regarding Indonesia, Article 55 (1) of Law No. 21 (2008) provides that a Religious Court shall have jurisdiction to hear matters involving Islamic banking disputes, unless there is an agreement stating that the dispute resolution should be done in another manner, provided the chosen manner does not contradict with Shari’ah principles. There is also an option to refer to the Dewan Shari’ah Nasional Majlis Ulama Indonesia for expert opinions. Both jurisdictions also acknowledge alternative dispute resolution as a mechanism for dispute settlement. This study emphasises the need to enhance the knowledge and in-depth understanding of judges in the relevant field of law; Shari’ah law for civil court judges and civil law for religious court judges, to facilitate the dispute resolution process.

Item Type:	Article (Journal)
Uncontrolled Keywords:	Islamic Banking and Finance, Alternative Dispute Resolution, Conflict of Jurisdiction, Civil Court, Shari’ah Court.
Subjects:	H Social Sciences > HG Finance > HG3368 Islamic Banking and Finance
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Institute of Islamic Banking & Finance (IIiBF)
Depositing User:	Prof Dr Rusni Hassan
Date Deposited:	14 Nov 2022 09:13
Last Modified:	14 Nov 2022 09:19
URI:	http://irep.iium.edu.my/id/eprint/101263

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