International And Islamic Business Law
Differences between International and Domestic Business Law
The International business law is concerned with the rights of business with each other and with international organizations. Domestic law is within the state and it concern with the rights of business within the state(Bartone, 2010). The domestic and international business law is very differing in mainly two aspects first of all the law making process and the enforcement. International law is an ever expanding field that controls the internal dealing of the business. Public and private international laws are the two components of the international law. The internal laws have some curious features like legislative, executive and judicial process. These elements find their approximate analogue in the international law(Bingham, 2010). The international law is a component of domestic and municipal legal system. International law participates in the growth of the business organization. Furthermore, it can be conclude that the international law is relevant to the exercise of domestic jurisdiction(DiMatteo, n.d.).
In the fundamental principles of Islamic commerce riba is prohibited and translated as interest and extra gain from the transaction. This principle highly affects the transactional dynamics of international contracts that is under Islamic law kg nd . In the western countries the bank provided loan to the customers in a condition that they will revert back the money with the appropriate interest. Therefore, the additional transaction is added in these particular transactions in terms of value of money and value of service. These kinds of financial transactions are prohibited as riba in the Islamic law. The payment and received of interest riba is strictly prohibited in Islamic justice. The prohibition of ribs is mainly applicable for the Muslim communities(Ansari, 2007).
The word riba is derived from the rabic verb „rabaâ€Ÿ that means grow above. The principle prohibition of riba has several applications in the Islamic jurisprudence. In some Muslim countries the application of riba is legal like in the Untied Arab emirates it is legal but in Iran it is illegal. But in the case of banking sectors it is observed that the Iranian bank receives interest from the foreign transaction(Ferrari, 2008). The banks also paid interest; in this case the name of prohibition is changed from interest to profit. However the due to the globalization in the international market the concept of riba is only applicable when one of the parties are included in the Islamic law jurisdiction and the understanding of transactional dynamics of commercial transaction will be a extraordinary tool for the growth of the business in the Islamic countries kg nd , 2010).
A) In this specific case the shipping contract between the Armada (Singapore) and Gujarat NRE Coke Limited (Gujarat). An arbitration clause is consists in the contract, according to the clause any kind of disputes will be determined by three “commercial men who are members of the Institute of Arbitrators in London”. Therefore the rmada and Gujarat appointed two parties and these two parties will choose the third. According to the jurisdiction three awards were made by the arbitral tribunal for the consequences of hearings(Fontaine and De Ly, 2009). The first award awards deals with the jurisdiction of the arbitration tribunal and relying on the Arbitration Act 1996(UK Act) and it had a relevant jurisdictions. The tribunal is dismissed due to the Gujarat claim that is the two arbitratorsâ€Ÿ appointed by the rmada is not commercial men. According to the arbitration clause the claim was produced not in time under the UK Act. The second award deals with the identification that Gujarat had breached the shipping contract or not and then how the damages will be assessed(Gray, 2012). According to tribunal Gujarat was in breach of the contract and smartly outlined the basis of the calculation damages methods. Finally the third award is about the damages awarded to Armada. After that the Armada commenced proceedings in the Federal court of Australia to enforce the there arbitral awards in Australia.
Prohibition of Riba in Islamic Commerce
B) There are several basic issues were illustrated in this section, Gujarat registered enforcement regarding all the three awards on the basis of five grounds(Heidemann, 2007). First of all the two arbitrators appointed by the rmada and Gujarat were not “commercial men”. Then the court decided according to the section 9 of the international Arbitration Act 1974 (Cth) was not applicable because the tribunal was not operating under the arbitration agreement. Therefore, the major basis ground is not available for the both companies. s they are not “commercial men” so the tribunal composition is not appropriate under the agreement that is required under section 8(5) (e) of the particular Act. Accordingly, the second award is not binding because it is referred to the future damages when the damages are not suffered by the company. The components of future damages made the enforcement of second award contrary to public policy (section 8) and most importantly the contract is regarding the sea carriage document under the section 11 of the Carriage of Goods by Sea Act 1991 (Cth) so the arbitration clause will not make any affect in this particular context(Janssen and Meyer, 2009).
The federal court identified the results in favor of rmadaâ€Ÿs application established to a level that the three awards that express the binding upon Armada and Gujarat vary in all purpose. Gujarat has to make one of the important grounds indicated in the s 8(5) (e) and (f) because the subsection relied on by the specific party. The few grounds are made by the court first of all are lawyers “commercial men” it is included in the ground one and two. s because of the two arbitrators are not commercial men then the tribunal composition is not supported by the agreements(Knapp, Crystal and Prince, 1999). While submitting the arguments Gujarat relied on the section 8 of the IIA that outlined the recognition of the awards and in the section 9 that particularly indicates the evidence of awards and arbitration agreements. There the main issue is identified about the arbitrators appoint and the tribunal constitution. The court has the power to determine the cases of jurisdiction for itself and also not bound to follow any kinds of findings of the arbitrators. The evidence from the correspondence between Gujarat and Armada states that the parties are agreed to appointment of the two arbitrators then Gujarat waives its right objects consequently(Li, 2013). Gujarat does not stop from challenging the appointment. The another important issue that is under the three and four grounds that is the future contractual damages contrary to public policy and it is found that Armada claim for the contractual damage is premature. The proper opportunity is given to the Armada that originates the application to enforce the additional awards after making the judgment. Therefore, the second awards do not deal with the future damages of the particular company. Finally the ground five deals with Carriage of goods by sea Act. In this section the results is identified that the arbitration clause remained valid(Magnus, 2012). Therefore, these are the various principles are relied upon the court on the basis of five grounds.
Case Study: Arbitration and Enforcement of Arbitral Awards
C) There are various freezing orders are made by the Foster J in May 2012. After that the orders retaining Gujarat from changing, disposing, dealing with the significant value of the shareholders in the capital of Gujarat NRE limited, which will remain a related corporation until further order is provide by the court(Mitchell and Powell, 2011). Foster J also states that Gujarat fails to make a specific case in support of the variation it sought. Another important and critical command is provide by the Foster J that the variation application “only faintly pressed” at [7 ] . The decision made by the federal court is encouraging among the international parties involved in the business entire Australia. The approach is selected for this particular case is pro-arbitration. This pro-arbitration approach is highly appreciated in Supreme Court. Furthermore, the Federal court made decision in favor of Armada application and three applications also enforce for the arbitration awards in Australia(Monahan, Young and Finlay, 2006). It was a reminder for the contracting parties that Australian courts will go with the arbitration agreements and will enforce awards, which made under the agreements.
A) Able Ltd has to follow several law issues regarding the sales contact in the US. The CISG can be followed for the law of the contract. Trade regulations, customs and standards must be maintained by the company to make an effective import business to the United States(Parker, 2007). The shipping company must be selected by the company and it is depends upon the several factors the specialization in the shipping of the particular materials but in recent days most of all the ships are available with the different size and shapes of cargoes. For the import of the mining equipmentâ€Ÿs the special arrangement of the cargo is required. The export control is conducted under the military surveillance in the United States. The Export control Act. And the Export administration Act is applicable for importing the mining products(Picken, 2011). It is not a major requirement to analyze the laws and regulation before implementing an excellent business plan.
a. In this part the international character and need is promoted uniformly in its application that will indicate the better faith in international trade.
b. The general principles are enforcing in this particular area for the conformation for the applicable law in this purpose(Rothwell, 2011).
a. The intention of the partyâ€Ÿs understate in this area to determine the statements made by these parties.
b. According to the provision one party is responsible for the required performance of any kinds of obligation by the other party(Sheehan, Rhoades and Stanley, 2012). The court is not bound to provide a judgment for the specific performance unless a significant law is applicable in order to similar contract of sale not govern by this convention.
a. The contract may be modified by the mutual agreement of the parties.
b. A party can precluded by his performance from asserting such a provision to that particular extent that the another party has relied on that specific contract(Sullivan and Bell, 2009).
The Secretary General of the United Nations is assigned as the depository for this particular convention.
This specific convention will be applicable over this international agreement between the Able Ltd. And the supplier company in the United States. In this provision the parties will have their particular path of doing the business(Vardhan and Bayar, 2014).
a. In this convention a meeting will be conducted in the United States for the international sale of mining equipment and it will remain open for the signature by all states head quarters within the given deadline by the court.
b. According to the constitution different kinds of laws are applicable for the matters dealt with this particular convention(Vrachnas, 2007).
The conventions permit several declarations in order to make an effective business by maintain the rules and regulation of the United States. It is evident from the study that different kinds of law are available for the particular state therefore; depending upon the supplier state the law will be relied by the court.Furthermore, the court may declare they do not have any obligation of the buyer and the seller that is Able Ltd. And the US company(Wang and Zhang, 2012).
It is possible to include CISG under the US law contract particularly in this specific case where two parties are doing business form the different States. The article 95 for the reservation and power can be applicable for this particular case. CISG applies in the contract of “sales of goods” and here the mining equipmentâ€Ÿs are supplied to the bler Ltd. and the transaction is performing between the States(Bartone, 2010). The CISG is significant for the taxation and it brings closest relationship to the contracts and its performance. But it also has to keep in mind that CISG is not applicable for the significant parties whom does not aware about the different places of the business. As the contract is starting by governing the laws and regulations of the United States therefore, it can be applicable because due to the presence of the governing body the CISG can easily applicable. It is evident from the study that CISG is a part and parcel of contracting domestic laws between the two States. In conducting international commerce the principles of parties autonomy is provided by the drafters(Bingham, 2010).
B) Arbitration is a form of private binding, in which dispute resolution are conducted. With the help of this resolution they are emanates an agreement in between two parties. This type of agreement from the parties are regulated and enforced by the state. In Australia there are so many states have some requirements to make a contract of arbitrate obligation(DiMatteo, n.d.). This contract will provide a limited judicial supervision of arbitral proceedings and some support elements of arbitral awards. Sometimes this law has played an alternative dispute resolution to specify a legal alternative litigation in between two parties or two states. In this disputes both the parties are agreed to submit their respective positions for resolution. In this case parties must be considered about the arbitration contract. However, it is so important to do so where the both
parties including their property are engaged in this type of arbitration. The lowers have some steps to place the futures by which they can provide a conclusive decision process towards the top of arbitration contract. This arbitration has some necessary process in which they can determine the contractual process(Ferrari, 2008). They are enforceability of conventions. In this process both the parties are enforcing arbitrating awards among worldwide for court judgement. There are so much little point to obtain a judgement from court by which they cannot enforced against suitable access of arbitration. The most important enforcement convention in Australia was held in the year of 1978. Being Able Ltd is a large importer in Queensland, so the choice of arbitration is formed in favour of this company. Another process is neutrality in which any party has made a valid contract to avoid resolving disputes through local courts of another party. In this type of arbitration the opportunities for neutral resolution are applied with the help of international rules(Fontaine and De Ly, 2009). This rules are placed in a mutually venue to support the court judgement. There are no such type of wide-ranging arbitration convention are available to provide an enforcement of court judgments. Arbitration makes so many opportunities for dispute resolution in where both parties do not reach to make an agreement in advance. So in this type of agreement a greater risk are available over procedure to lead the delays. Now the choice of arbitration hasmade a change for the parties. Most developer has developed an arbitration laws to fulfil the agreement in between both parties. This law are required for all arbitratorsâ€Ÿ term and condition. The parties to arbitration usually appoint, nominate or at least have some input into the selection of the arbitrator. During the revolution of industrial organization there are so many large companies has opposed this type of policy. Able Ltd can use their choice to make agreements with US government. They can also put the selection process to help the agreement system more perfect. Both the parties are usually seeking advice from their lawyers to sustain a suitable arbitrator form(Gray, 2012). The major arbitration rules are combined with so many national laws. These laws are providing some important methods for the appointment of the tribunal. This agreement has made in default agreement in between two parties. So Able Ltd importer has made a full payment to shipment under the US law.
c) An international arbitration law is essential for an international mechanism in which Able importer has selected the Queensland law to settle the contract disputes. Now sae arbitration is repeated and there are no fixed rules or procedures are followed to change the international
mechanism. With the help of international mechanism a matrix is formed, in which the matrix has affected variation of arbitration(Hopkins, 2009). Being dependent upon this quality and agreementof arbitration a procedure is formed in between the parties. This procedure has followed the terms and condition in between two states to refer a dispute arbitration rejection in many cases about law procedure. The simple agreement in between the two parties has referred some disputes about arbitration law in Queensland. This is a positive rejection from the national courts to produce procedure national law. Both thesefactors are directly controlled through a party autonomy. With the help of this choice all arbitration one party can make his own decision in between the two countries. The effect of party autonomy has achieved a major acceptation in worldwide in favor of dispute arbitration. This type of mechanism is resolving so many disputes from international transactions(Janssen and Meyer, 2009). With the help of this transactions both the parries have been influenced the development and practices for internal arbitration laws. The right party has right choice to determine all aspects o about an arbitration system. This system is unquestioned in so many cases. With the help of these principle factors both parties are directly influenced to an international arbitration practice and this law has directly influenced the practice of judgmental decision of court. Able Ltd has also established the system to ensure maximum possibility of an enforceability of arbitration awards. The most significant affect has been approached to these awards, practices and policies. In some other cases, these influences are coming from a national law in which they are controlled by the parties(Knapp, Crystal and Prince, 1999).This practice is illustrated through an international award through which individual laws are affected. This project has many individuals completion. Australia is a participant of arbitration law for both the New YorkConventionand Model Law.This is done throughan international arbitration act in between these two states. The enforceability of arbitral awards may be enforced in these factors to retain the utility and success of international commercial arbitration. More specifically, the enforceability from a foreign arbitral has some standard awards in Australia. They are likely a part of international commercial arbitration, in which many resolution mechanisms are coming in form of international commerce and trade(Li, 2013). So the judgement of Queensland arbitration award would recognisea force under the US legal system.