Features of Arbitration in Islamic Law when Resolving Disputes in Muamalah (original) (raw)
Related papers
Journal of Islamic Economic Laws
Sharia economic dispute is a conflict of interest or loss for either party to the business or activities carried out by individuals, groups of people, or business entities that are legal or not legal entities to meet the needs of a commercial and non-commercial nature according to sharia principles. Furthermore, it can be resolved through litigation or judicial and non-litigation, or out-of-court lines. Resolution disputes through religious courts always takes a long time and complicated administration, but until now is it still in high demand by justice seekers. There is dispute resolution outside the judiciary, one of which is arbitration through National Sharia Arbitration Board (BASYARNAS) which can be the solution. This paper is a qualitative research study with a case was taken from Religious Court Class 1A Sleman and BASYARNAS Representative In Yogyakarta. The findings of this study provide the results dispute resolution in religious courts is more desirable because it has mo...
The Mediation Process in Sharia Economic Dispute Resolution Through the Religious Court in Indonesia
2019
Mediation through the religious court is still achieving a low success rate in Indonesia, from 2003 to 2015.Based on the results of the study, data shows that the maximum achievement is only 18.1 %. This study aims to determine the repositioning of the mediation process in resolving Islamic financial dispute through the Religious Courts after the enacment of Supreme Court Regulation No. 1 of 2016. This research is a normative and empirical legal research that uses qualitative methods. Athe interviews were conducted through field research in 5 (five) Religious Courts in the Special Region of Yogyakarta. The results showed that the mediation process at the Religious Courts as one of the conditions for filing a lawsuit was no longer included in the trial, but carried out outside the trial which become a mandatory requirement in the registration of the lawsuit. As for the factors that support law enforcement there are five factors including law and legislation, law enforcement officers,...
Fatwa DSN MUI In Managing The Dispute Settlement Of Sharia Economic In Indonesia Through Basyarnas
Al-Ahkam Jurnal Ilmu Syari’ah dan Hukum
Sharia Council is an institution that plays a role in securing the standard of Sharia in every Islamic Financial institution in the world. In Indonesia, the role is conducted by the National Sharia Council (DSN) established by the Indonesian Ulema Council (MUI) in 1998, strengthened by the Decree of the MUI Leadership Board. Kep-754/MUI/II/1999 dated February 10, 1999. The existence of MUI DSN in managing the settlement of sharia banking disputes has not been fully recognized by the people of Indonesia. It can be seen in the implementation of sharia contracting in sharia banking has not yet decided dispute resolution option through National Syariah Arbitration Board (BASYARNAS). The purpose of writing a paper is to know the legal basis of the binding force of the Fatwa DSN in arranging the settlement of dispute Sharia Economy in Indonesia through BASYARNAS and its consequences for the Islamic financial institutions (LKS) who disobey the fatwa DSN. This research is a normative resear...
Optimization of Justice Institutions in Cancellation of Sharia Arbitration Decisions
International Journal of Multicultural and Multireligious Understanding, 2019
This study aims to examine and analyze the role of the judiciary in the cancellation of the Sharia Arbitration award as an alternative settlement of sharia economic disputes. This research uses a type of normative legal research and a law and conceptual approach. The data obtained both primary and secondary data are then analyzed using qualitative descriptive methods. The results of the analysis show that the judiciary has the authority to adjudicate requests to cancel the Sharia Arbitration decision, namely the Religious Courts as a forum that represents Islamic justice in Indonesia. With this authority granted, the Religious Courts have the authority to examine at the same time the substance of the reasons for canceling the Sharia Arbitration award which is included in a criminal act which, in general terms, is the authority of the District Court. Therefore, it is necessary to have an arrangement that reinforces the authority of the Religious Court in canceling the Sharia Arbitration award so that it can more effectively support the enforcement of the sharia economy.
Dinamika Hukum/Jurnal Dinamika Hukum, 2024
The contract between sharia insurance companies and policyholders is based on sharia principles, namely helping each other to protect each other. However, if disputes still occur,a resolution can be reached through mediation, sharia arbitration, and the courts. The problem in this research is how practices and obstacles resolve sharia insurance disputes through sharia arbitration institutions and how, ideally, arrangements in sharia insurance cases through sharia arbitration institutions can be resolved. The research methods used an analytical perspective, namely an investigation aiming to provide an overview or formulate a problem according to existing circumstances/facts. So it is necessary to revise the Arbitration and Alternative Dispute Resolution Law (1999), especially Article 61, Article 62, Article 63, Article 64, and Article 65, to regulate the scope, duties, and functions of sharia arbitration by considering the use of virtual arbitration processes in developing sharia arbitration as a special, authoritative, and independent arbitration forum.
This study aims to examine and analyze the authority of the National Sharia Arbitration Board in the Sharia Economic Dispute in Indonesia and to find the reconstruction of the authority of the execution of the decision of the National Syari\'ah Arbitration Board in the sharia economic dispute in Indonesia. The approach method used in this research is normative juridical, using secondary data type (sourced from primary legal Material, secondary law material and tertiary legal material). While analyzing the data in a descriptive analysis. The findings in this research is that the problem of arranging the authority of the execution of the decision of the National Syari\'ah Arbitration Board in the sharia economic dispute in Indonesia with the overlapping of authority makes the legal confusion and does not provide justice for Muslims to obtain legal certainty as Islamic law has been in Guaranteed by Pancasila and the 1945 Constitution. For the sake of the creation of justice in society, it is necessary to reconstruct the Article 59 paragraph (3) of Law no. 48 of 2009.
Towards the Settlement of Civil and Criminal Disputes through Arbitration under Islamic Law
International Journal of Business and Technopreneurship , 2017
Islam is not just a religion; it is an exhaustive way of life. Din-the Arabic word for religion, encompasses, theology, scripture, politics, morality, law, justice, and all other aspects of life relating to the thoughts or actions of men...it is not that religion dominates the life of a faithful Muslim, but that religion...is his life. The Shari'ah regulates all aspects of life, ethical and social, and to encompass criminal as well as civil jurisdiction. Every act of believers must conform to Islamic law and observe ethical standards derived from Islamic principles. Dispute settlement is one of the fundamental affairs of the Muslim as he was ordained to do so peacefully and this was declared as best way of resolving problems among them. Arbitration and amicable settlement (sulh) have a long history within Arab and Islamic societies and have their roots in pre-Islamic Arabia. Sulh is the preferred result and process in any form of dispute resolution. Further, arbitration is favoured to adjudication in Islamic jurisprudence. In tribal and Islamic cultures, the overarching objectives in conflict settlement are collectively. Sulh or reconciliation is becoming an alternative problem solver in many cases lately. It is a mutual agreement between the conflicting parties so that the dispute is solved amicably. Many people assume that sulh is only applicable in civil cases. Nevertheless, in Islamic law sulh is also applicable in criminal cases particularly in homicide and bodily injury cases.
Khatulistiwa
The sharia economic dispute resolution process in Indonesia has two paths which can be taken by litigants, namely litigation in court and non-litigation. This research was motivated by sharia economic dispute cases handled by Blitar Religious Court which were carried out through a mediation but failed. The failure of this mediation process and the factors behind the failure are important issues to be studied. Consequently, Supreme Court Regulation No. 1/2016 becomes important to be used as the basis of analysis, whether this regulation has been implemented or not. Therefore, this study aims to describe and analyze the implementation of the Supreme Court Regulation Number 1/2016 concerning the procedure of in-court mediation on economy sharia disputes in Blitar Religious Court, along with various obstacles and solutions.
International Journal of Nusantara Islam, 2020
The background of the article is the contents of Article 59 paragraph (3) and explanation of paragraph (1) of the Law on Judicial Power. The article authorizes the District Court to implement the decision of the Sharia arbitration body on the resolution of Islamic economic disputes. The article and explanation of the verse contradicts the absolute authority of the Religious Courts regulated in Article 49 letter (i) of the Law on Religious Courts. This shows that, the legislators are not consistent in making laws and regulations, so that it creates legal uncertainty. By applying the normative legal research method to the statute approach and case approach, this article seeks to describe the phenomenon of legal conflicts that occur. From the in-depth analysis it can be concluded that the legal provisions regarding the implementation of the decision of the National Sharia Arbitration Board are regulated in the Arbitration Law, the Judicial Power Act and the Religious Courts Act. The le...
DOAJ (DOAJ: Directory of Open Access Journals), 2018
This study investigates the case of arbitration in the modern states in general and in the Islamic Republic of Pakistan in particular, as a self-binding, amicable mode of Alternative Dispute Resolution (ADR).it starts with arbitration's meaning, history and evolutional background and discusses them as preliminaries and entrance to the main topic. The study debates Pakistani legislation on the subject, with special focus on the Arbitration Act, 1940. It examines the functioning of arbitration in Pakistani legal system, detects the flaws and areas of improvement therein, and most significantly, suggests proposals for required amendments in the relevant laws. In this connection, the equivocal nature of ADR provisions in some statutes other than Arbitration Act, has been specially highlighted. As per requirement of the Article 2(A) of the Constitution 1973, some inconsistencies of the laws on the subject with Sharī'ah have also been traced. The issue of qualifications of arbitrators (hakams) has been detected as the main subject of inconsistency between law and Sharī'ah, resulting in substantial and effective bearings. A similar inconsistency, comparatively with a lesser effect, has been noted in arbitration of family disputes regarding fixation of number of arbitrators and the hail from families of the disputing spouses. While investigating all these issues, an analytical-cum comparative strategy has been followed. The conclusion contains a concise brief on comparison between Sharī'ah and law on the subject and a package of proposed amendments in the gray areas.