Harmonization of islamic law on sale contracts, a comparative study with the CISG

The crucial requirement for wider acceptance of the CISG by Islamic countries is the harmonization between the CISG and Islamic law. The States emphasized this concern during the Convention's preparation as well. This aspect is especially intriguing as it permits the parties involved in the sales agreement to modify any element of the CISG, except Article (12) as per mutual understanding Under Article (6) CISG. Hence, unless a different law is chosen or an optout is exercised, the CISG provisions will be applicable. Islamic law-influenced states expressed considerable apprehension regarding potential challenges that could emerge from adopting the CISG as a customary legal framework. Regrettably, the scholarly literature has not given substantial focus to the connection between the CISG and Islamic law. After examining the correlation between the CISG and the Sharia, no substantial arguments were found that could hinder the increased involvement of Sharia-influenced states in the CISG. It would be fitting to demonstrate the factors behind this wider involvement. There are multiple reasons put forth to support the implementation of the CISG. These claims are founded on the idea that by utilizing an advanced messaging system that effectively addresses the needs of all parties involved, there will be a decrease in transaction expenses. The decrease in transaction expenses results in reduced costs for both imported and exported commodities. By maximizing the value for their money, individuals and purchasers can enhance their benefits, while exporters can gain a competitive edge in the global market. The CISG offers a universally applicable and easily accessible legal framework for the sale of goods unless otherwise agreed by the parties involved. This is especially crucial in situations where the parties involved lack sufficient access to expert legal counsel while engaging in contract discussions, something that is frequently observed among micro, small, and mediumsized enterprises. Promoting these companies can be especially crucial for nations dedicated to expanding their economic opportunities, like reducing reliance on commodity exports. Furthermore, having access to an impartial text could potentially hinder the more powerful party from imposing its national legislation in terms of contract law or opting for a foreign law. Instances like these are not preferable because, in the initial scenario, one party and in the latter scenario, both parties have to embrace an unfamiliar law. The CISG supports the idea of preserving contracts by favoring the valid parts of the agreement to minimize financial losses in the event of partial non-compliance. Additionally, the CISG includes an extensive and well-calibrated framework of contractual solutions designed to encourage collaboration between the buyer and seller when dealing with any instances of nonperformance. This strategy proves highly effective in reducing financial damages, especially in long-distance transactions, as national laws are typically crafted to cater to shorter-range transactions and lack similar mechanisms. The CISG provides an excellent foundation for achieving legal harmonization at a regional level. Member states of regional organizations like the Gulf Cooperation Council may seek to enhance their economic collaboration. When considering its application, it is important to recognize that the CISG has the potential to be implemented as a common sales law at both regional and global levels. The flexibility to modify and deviate from the standard provisions through reservations is provided to ratifying countries by the United Nations Convention on Contracts for the International Sale of Goods. However, despite the proven effectiveness of the CISG, only a small fraction of Muslim nations, specifically seven out of 37, have formally recognized and embraced it. The apparent concern arises from the lack of involvement of Muslim nations in the CISG. Hence, it was crucial to assess the level of conformity between the Islamic legal structure and the United Nations Convention on Contracts for the International Sale of Goods. Regional legislative initiatives should commence with the CISG and potentially incorporate other international texts like the UPICC, while also ensuring a harmonious correlation between various levels of legislation. In Islamic states, additional policy considerations should be included to fully address the importance of CISG. Increased knowledge and utilization of the CISG will lead to a greater inclination among these states to actively contribute to the creation, acceptance, and execution of new standardized legal principles. This heightened participation guarantees that the perspectives and requirements of Islamic business proponents are duly considered in global codification initiatives, in harmony with their esteemed business heritage. At present, there is a lack of enthusiasm from Islamic law-influenced states in creating unified texts, and their participation in drafting similar documents to the CISG is now seldom observed. Regrettably, this partial agreement can result in a growing divide between universal legislation and Islamic legislation. Additionally, Islamic commercial legislation is becoming increasingly significant, particularly in the realm of Islamic finance. A considerable increase in engagement can be achieved through improved coordination of existing resources or by providing additional allocations. Due to staffing limitations, the UNCITRAL Secretariat lacks Arabic-speaking legal advisers. This naturally impacts one's capacity to comprehend and actively participate in legal systems that are influenced by Islamic law. As the new strategy of UNCITRAL focuses on establishing regional hubs, countries influenced by Sharia law might express interest in hosting these hubs, which would greatly contribute to facilitating dialogue between uniform law and Sharia law. This would allow UNCITRAL to promote novel initiatives such as those mentioned earlier. Enhanced mutual comprehension will simplify the clarification of uncertainties regarding the harmonization of Islamic law with the techniques employed in establishing consistent legal standards. The discourse surrounding the correlation between Islamic law and international legal norms is still in its infancy. The initiation of dialogue regarding the inclusion of uniform law in the collective global endeavor to uphold the rule of law in commercial transactions is long overdue.