An Academic Refereed Journal Issues Four Times a Year

journal Sharia & Law                 ISSN: 1813-095X

Issue 71 JULY  2017

Modern Trends of Liability for Tort: A Comparative & Analytical Study on the United Arab Emirates (UAE) and the Qatari Laws In light of the Developments in the French Law

Prof. Adnan Ibrahim Sarhan
Professor of Civil Law -Former Dean of the College of Law at Sharjah University-UAE

Abstract:

The position of Emirati Law differed from that of the Qatari one in terms of both personal and substantive approaches of civil liability according to variation in their historical sources. While Qatari Civil Law adopted Fault in its personal concept as a basis for liability of unlawful act, influenced by most Arab Civil Laws that preceded it such as Egyptian Civil Law, we find that the UAE Civil Transactions Law, influenced by Islamic Jurisprudence, adopted tort in its substantive concept as a basis for liability of unlawful act.
Despite the fact that both laws are contemporary, they didn't pay adequate attention to developments of civil liability in comparative laws. Yet the traditional rules of liability remained as those laid down in French law. Furthermore, the judiciary in both countries, unlike French one, didn't take effective efforts to develop the rules.
However, both laws codified in their legislations some civil liability developments of comparative law especially the relevant international conventions, which are mostly biased to substantive approach as the best trend to ensure rights of injured parties.
The task of this article is to examine the modern trends of Liability for tort in both UAE and Qatari laws in light of liability developments in French Law.


Mediation is a Means of Settling Family Disputes:Study on the Jordanian Personal Status Law

Dr. Mohamed Khalaf Bani Salama
Assistant Professor of Islamic Jurisprudence (Fiqh) - College of Sharia and Law / Department of Fiqh and its Foundations, The World Islamic Sciences & Education University - Jordan
Abstract:

The mediation gained great interest recently by jurists and scholars in order to search for the best ways to relieve on the convict and liabilities alike, the mediation association has resulted in all fields of life, especially in family life.
This study examined about the history of mediation, identity, types, advantages and objectives of the mediation, also it talked about the mediation as an alternative means to settle family disputes in the Jordanian Personal Status Law.
The researcher found in this study that the practice of the mediation is the strongest single administration in the dispute settlement movement, and that the goal of the mediation ultimate is to reach a solution of conflicts and disputes and improve the relationship between liabilities after reaching satisfactory agreements, but the Jordanian legislator omitted a lot of legislation that can make the mediation the best alternative means to resolve disputes.
The researcher recommends the need to re-examine a range of legislation on personal status with necessity of activating the application of the mediation as an alternative means to resolve disputes with necessity of activating the idea of case management at the Sharia courts.
Keywords: The mediation, Reconciliation, Arbitration, Alternative means.


TRemuneration of the Arbitrators in International Commercial Arbitration: Arbitrators’Authority in Setting their Fees and the Oversight Role of the Judiciary

Prof. Mosleh Ahmad Tarawneh
Professor of International Trade Law, University of Mutah
Dr. Abdullah Aldmour
Associate Professor of International Trade Law, University of Jordan



Abstract:

This article examines the nature and the enforceability of arbitrators’ authority in setting their fees. It seeks to identify the different methods, factors, determinants of calculating fees, and the guarantees that entitle them to meet these fees. The fundamental question is: Could the arbitrators force the parties to pay their fees by issuing an award against them? The Article will also examine the role of the national courts in setting or controlling the fees of the arbitrators and the advance payment of arbitration costs.
Keywords: International Commercial Arbitration, Arbitrators, Remuneration of the Arbitrators, Cost-control, Advance payment on Cost, Jordanian Arbitration Law and Comparative Law.


Appeal against the Judgment of Bankruptcy In light of The New Judicial Systems in the Kingdom of Saudi Arabia

Dr. Ahmed Saleh Makhlouf
Assistant Professor of Business Law, Institute of Public Administration Riyadh

Abstract:

This paper presents the challenge to the ruling of Bankruptcy
This paper presents the challenges against the judgment of Bankruptcy in light of the new judicial systems in the Kingdom of Saudi Arabia, which has changed significantly the UK litigation system. Where was the creation of specialized courts, including commercial courts, the adoption of the principle of litigation on the two instances, and the establishment of the Supreme Court to monitor the proper application of the provisions of Shariaa and regulations (laws). Therefore, bankruptcy suits have become passed by two phases of litigation. The first instance in front of first-class commercial court, and again before the Court of Appeal.
This paper explains the ways to object to the judgment of bankruptcy before the Court of Appeal as a ordinary means, and then to the Supreme Court as a extraordinary means, according to the provisions contained in the new Saudi legal pleadings Act issued in 2/1/ 1435H.
The Paper concluded that the need to change the Saudi commercial system issued in 1350H, and change the name of the commercial court system to the commerce Act, so as to take into account the fundamental changes that have occurred in the bankruptcy system, both in terms of procedures and in terms of the subject.


Agency in the Dispute In accordance with the Provisions of the Jordanian Civil Laws

Dr. Abdul Rahman Jumaa
Professor of Civil Law – College of Law University of Jordan


Abstract:


The lawyer’s Power of Attorney (POA) is a sort of contractual representation that authorizes a nominated lawyer by a litigant in legal procedures to act on behalf of him and to undertake all necessary actions or proceedings before the courts in legal suit. As a must for the POA includes expressly the powers of the attorney to be acted and to be done on behave of his grantor, such as: a waiver to challenge courts laws decisions and judgments, settlement, dropping a lawsuit, receive monies, addressing oath, declaration against interest, claiming the minatory interest, bringing claims, dismissing the judges .In other terms , the POA should give the attorney the full power to represent his client otherwise the POA may be declared null and void, taking into account that in some cases during the proceedings the litigant may attend in person before the court and may appoint someone else non a lawyer.
The court must ensure before rendering it judgment that lawyer's POA include an explicit mandate to appear before it, if the POA was to appear before the Magistrate's Court or the first Instance court, the court of appeal should dismiss the appeal on the ground that the appeal had been submitted by who do not have the right to submit. The execution judge should refrain from refunds in the executive case when the POA does not entitle the lawyer to pursue the case before the Execution Department.
A new legislative development took place in the Companies Act came into force in 2011, according to the Article (7) Lawyers as professionals can proceed to register a Civil Company in a special register (Register of Civil Companies) in the Companies Supervision Directorate associated with the Ministry of Industry and Trade. Such companies shall be subject to the provisions of the Civil Code and a judicial personality is conferred according the Article (50) of the Jordanian Civil Code.
Finally, the POA, related to this subject, raises many questions and even points. In addition to all of the above, the insufficient in the plaintiff’s POA may lead to reject his claim and / or a portion of his requests, and it may lead to reject his appeal submitted to challenge the judgments.

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The Constitutional Controls over Issuing Temporary Laws in the Jordanian Constitution of 1952 In Light of the Constitutional Amendments of 2011


Dr. Awad Rajab Khashman Lemon
College of Law, University of Jordan


Dr. Ahmed Musa Al-Hayajneh
College of Law, University of Jordan


Abstract:

This Study tackles a significant subject in the successive Jordanian constitutional systems, which are temporary laws issued by the council of ministers with approval of the King in accordance with Article (94) of the Constitution.
This Article has been of criticism of Jurists and researchers because of the expansion of qualifying subjective and temporal circumstances for issuing them. Therefore, the competent authority of constitutional amendment opined that the constitutional amendments should include the constitutional provision, which governed issuing like this kind of legislation. Hence, the constitutional legislator restricted the Executive Authority having jurisdiction of issuing them within a period of four months following only the decree of the dissolution of the Chamber of Deputies. This temporal restriction must be coincident with one of the exceptional circumstances identified by the constitutional legislator, which are the state of war, emergencies, public disasters, and the need to pay out urgent financial expenses.
These laws are subject to the censorship of the Parliament in the first session it holds, in which the Parliament might endorse these laws, then they, concerning their legal description, change from temporary to ordinary laws. The Parliament might amend or reject them. In this situation, the council of ministers must, with approval of the king, pronounce their nullification immediately without affecting the acquired rights. These laws also are subject to the judicial review represented by the Constitutional Court review on constitutionality of these laws by virtue of Article (59) of the Constitution.
The study has concluded several recommendations and outcomes. Among the most substantial outcomes is that despite the constitutional amendment of Article (94) restricting the jurisdiction of the Executive Authority to issue the temporary laws, but in the more confined exceptional circumstances, the state of public disasters might be interpreted widely by the Executive Authority leading to the expansion of issuing them. The constitutional amendment has passed over clarifying the authority competent to issue this kind of laws within the time between the periods of holdings identified by six months.


The role of the United Nations in Promoting the Rights of Indigenous Peoples

Dr. Wissam Naamat Ibrahim Al-Saadi,
College of Law, University of Mosul


Mr. Safa Samir Ibrahim,
Assistant Professor at the Central Library of the University of Mosul

Abstract:


The issues of "indigenous peoples" are one of the most prominent international issues that have attracted much international attention from international bodies and organizations. Their problems and challenges have been raised widely and in various areas - regional and global - have become the Effective of many international parties, its main organs or assistance and its specialized international agencies. The International Labor Organization (ILO) has been at the forefront of its efforts, for many centuries to be neglected and forgotten by the violation of its various rights.
The United Nations has played a major role in the formulation, promotion and protection of the rights of indigenous peoples through many of the major organs that comprise it. The General Assembly, which has the mandate over most of the Organization's activities, has exercised and continues to play a major and fundamental role in this area. The Economic and Social Council, In this regard, the activities of the two main organs of the Organization are carried out through many forms, including at the level of the adoption of the relevant legal rules, or provide the necessary financial assistance, and the allocation of the appropriate As well as the establishment of the bodies concerned, and finally the mechanisms of protection against violations.



Defining the Concept of both the Consumer and the Professional in the Moroccan and the Comparative Laws
Mr. Abdel rafeia Aloui
College of Legal, Economic, and Social Sciences, Ibn Zohr University, Agadir. Morocco


Abstract:

The consumption contract holds on one end the Professional and on the other the Consumer, and given the importance of the conceptual specifically for each of the consumer and professional and the implications for the scope of the law, the problem posed by this subject is: Is it possible to determine the precise and agreed to these concepts and what are the effects of this limitation on the scope of protection afforded by Consumption Law of the consumer as a party is weak in a contractual relationship unequal?
Any difference in the selection conceptual parties to the contract consumption means a difference in our perception of consumer protection in the face of abuse professionals, the more expanded professional concept has expanded the scope of protection of the law for consumers, which included the largest of the contracts number, and vice versa, which also applies to the selection conceptual to the consumer.
We have many countries knew a lot of controversy about the doctrinal and legislative consumer and the consumer moral person used public facilities , and professional you can have people from the general law only persons or private law ? Controversy still exists in this regard.
So we have tried to address the issue through this modest and tried to understand the different views on the concept of consumer and professional concept in Moroccan and the comparative Laws.



Civil Liability of the Nuclear Operator:A comparative study

Dr. Mohamed Mohamed Sadat
College of Law - University of Sharjah

Abstract

One of the most important discoveries of modern science is nuclear energy, which has become a necessity due to the use of conventional energy sources is nearing completion in addition to the many uses of nuclear radiation in medicine and industry. Many states have taken the initiative to establish them private nuclear energy production in an attempt to capitalize on what this new type of energy facilities offers..
Through the study, we will address the study civil liability of the nuclear operator through the study of both the Egyptian and UAE laws, and that was the motivation for their choice is that Egypt is seeking in recent times, seriously, about to engage in the use of nuclear energy for peaceful purposes, while UAE has entered already in the field of nuclear energy for peaceful purposes, which is why we are exposed to the decree the federal regulator for civil liability for nuclear damage especially due to his newness in terms of both version or in terms of the provisions covered.


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Subject: Journal Sharia  and Law
Issued by: College of  Law, UAE University
Supervised by : Academic Publication Council, UAE University
Published by : UAE University
Printed by : UAE University Pres
s

 

 

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