W. M. Ballantyne - Essays and Addresses on Arab Laws

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Essays and Addresses
on Arab Laws

Essays and Addresses
on Arab Laws

William M. Ballantyne

First published 2000
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
270 Madison Ave, New York NY 10016

Transferred to Digital Printing 2008

2000 William M. Ballantyne

Typeset in Garamond by LaserScript Ltd, Mitcham, Surrey

All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in writing from
the publishers.

British Library Cataloguing in Publication Data
A catalogue record of this book is available from the British Library

Library of Congress Cataloguing in Publication Data
A catalogue record for this book has been requested

ISBN 0-7007-1094-9

Publishers Note
The publisher has gone to great lengths to ensure the quality of this reprint
but points out that some imperfections in the original may be apparent

Contents

An Overall view: The Common Elements and a
Comparative Study (Paper read to the IBA conference,
Hamburg 1981; previously published with the Proceedings)

Arab Comparative Commercial Law (Inaugural Lecture,
delivered at SOAS 1987)

A Short Introduction to the Shari'a (Lecture currently
delivered to the LLM course at SOAS)

Arbitration in the Gulf States: Delocalisation:
A Short Comparative Study (Published in the Arab Law
Quarterly (ALQ) 1985)

The States of the GCC: Sources of Law, the Shari'a
and the Extent to which it Applies' (Lecture currently
delivered to the LLM course at SOAS)

The Shari'a (Speech delivered to the IBA conference at
Cairo on Arab Comparative Commercial Law; published
1987 with the Proceedings; expanded for this volume)

Representation in Contracting: Agency (Lecture currently
delivered to the LLM course at SOAS)

The New Commercial Code of Bahrain (Published
ALQ 1987)

The New Civil Code of the UAE: a Further Reassertion
of the Shari'a (First part published ALQ 1986)

Islamic Law and Financial Transactions in
Contemporary Perspective (Paper read to the SOAS
conference on Islamic Law and Finance 1988; published
with the Proceedings)

Back to the Shari'a? (The Second Coulson Memorial
Lecture: Published ALQ 1988)

The Bahrain Euro-Arab Arbitration Conference 1989:
A Summing-up (Published with the Proceedings)

A Reassertion of the Shari'a: The Jurisprudence of
the Gulf States (1990)

The AMF Case and Arab International Corporations
(Paper read to the Legal Practitioners Forum, Institute
of Advanced Legal Studies; published ALQ 1991)

Secular Law and the Shari'a: Pacta Sunt Servanda
and the Theory of Imprvision (Lecture currently
delivered to the LLM course at SOAS)

Commercial Law in the Middle East: Law and Legal
Change: Syndicated Loans (Paper read to the Middle
East Legal Practitioners Forum, 1993; published with the
proceedings)

Construction Contracts in the Arab Jurisdictions
(Lecture delivered to the Centre of Construction Law
and Management, University of London)

The Shari'a: Bridges or Conflict? (The Arab Regional
Forum of the International Bar Association: Foreword,
IBA Newsletter, 1995)

Acknowledgements

In the course of over 50 years of professional practice, it has been my pleasure and privilege to work with many colleagues of the highest calibre. It would be invidious for me to mention individuals at the risk of inadvertently excluding others; thus in general I must content myself with expressing my thanks and appreciation to all.

Specifically in connection with the present volume, I would like to thank Kathryn Garratt, linguist extraordinary, who read and corrected the initial proofs; Khawar Quraishi, of 1 Hare Court who did the detailed research for Chapter XIV; and Alison Padfield, formerly of 1 Hare Court, who did much to construct Chapter IX.

1 Hare Court
Temple

Preface

It is for me sobering to realise that thirteeen years have flashed by since the publication of my Commercial Law in the Arab Middle East: The Gulf States, and its companion, the Register of Laws of the Arabian Gulf. The latter is, of course, up-dated quarterly, but although there have been several reprints of The Gulf States, there has been no second edition: the material in the present volume may to a certain extent, serve as an alternative.

Although in its essence The Gulf States continues to preserve its validity, there has been much legal development in the area during the last thirteen years. The Code of Civil Transactions of the United Arab Emirates was promulgated in 1986, just too late to be incorporated in detail into The Gulf States a fairly exhaustive analysis of its provisions appears in this volume (Ch. IX). Bahrain has issued its commercial code, which is also the subject of a short article (Ch. VIII).

Other legal developments too numerous to mention in a preface figure in the individual chapters.

After due consideration, the various essays and addresses within this volume have been left as originally written or delivered. In a generous forward to my Legal Development in Arabia (1980: Graham & Trottman) Sir Norman Anderson (recently and very sadly for us, departed to that other existence to which his deep faith has surely admitted him) wrote:

Inevitably as Mr Ballantyne himself remarks, an unedited collection of such articles and addresses cannot avoid a good deal of repetition; but the only feasible alternative would have been a wholly new book which summarised, in successive parts, first the political and legal history covered in this series of contributions, then the current position (with all its uncertainties), and finally the course that future developments seem likely to take. But it may well be that the very repetition which a publication of this sort necessarily involves will serve, as nothing else might, to drive home the importance of the advice Mr Ballantyne continually and rightly gives: namely, that all who want to do business in this area:

must, from the very first, acquaint themselves with the facts of the legal position rather than rely on what others tell them to be the case on the basis of the way in which the law has, or has not, been enforced in the past;

must ensure that they conduct their business on the basis of a water-tight contract, drawn in Arabic, which includes (where this is appropriate) clauses concerning arbitration and choice of law which do not conflict with any enactment in the local law which may exclude the efficacy of these clauses, whether in whole or in part (as, for example, in regard to labour regulations), and which takes advantage of any concessions or exemptions which may be available.

must be exceedingly careful in choosing local representatives, companies or directors, and the terms they lay down about the control that their shareholders exercise.

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