Alternative Dispute Resolution: A Comparative Study of Compromise of Action under Malaysian Law and Islamic Law

Mohamed, Abdul Majid Tahir (2000) Alternative Dispute Resolution: A Comparative Study of Compromise of Action under Malaysian Law and Islamic Law. Masters thesis, International Islamic University Malaysia.

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Abstract

One of the aims of this study is to explain the close relationship between alternative dispute resolution or ‘ADR’ and ‘compromise of action’ under Malaysian Civil Law and Islamic Law. The main focus of this study is an examination of the various issues connected with compromise: its meaning and origin; matters that may be compromised; conditions governing compromise; compromise of action by lawyers; setting aside and varying of compromise; and effects of compromise. All these matters are discussed with reference to the two legal systems in a comparative perspective. The research methodology used in this study is doctrinal and comparative. Data are collected both from the primary sources, such as statutes and case laws, as well as the secondary ones, such as books and articles. A comparative analysis is undertaken to identify similarities as well as differences between the two legal systems. This study strives to show that ‘compromise of action’ under Malaysian law and Islamic law qualifies to be included within ADR. Under Islamic law, even though there is nothing like ADR as such but the concept exists in the form of ‘sulh’, ‘masalih’ and ‘tahkim’. In general the concept and practice of ‘compromise of action’ under the two systems is very similar, and whatever differences between the two exist are due to differing approaches in their science of jurisprudence. It is submitted that lawyer’s implied authority to compromise under Malaysian Law needs to be reviewed. Procedure for the enforcement of compromise under Islamic law may broadly and profitably follow that of Malaysian law.

Item Type: Thesis (Masters)
Keywords: Alternative Dispute Resolution, Arbitration, Sulh, Tahkim, Lawyer's authority
Subjects: K Law > K Law (General)
Faculty / Institute: Faculty of Law, Accountancy & International Relations
Depositing User: Dr. Abdul Majid Tahir Mohamed
Date Deposited: 19 May 2015 03:24
Last Modified: 19 May 2015 03:24
URI: http://erep.unisza.edu.my/id/eprint/1269

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