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Title: Saudi Arabia : the duality of the legal system and its implications on Financial Related Transactions
Author: Marar, Amr Daoud
ISNI:       0000 0004 2745 4782
Awarding Body: Queen Mary University of London
Current Institution: Queen Mary, University of London
Date of Award: 2007
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Saudi Arabia is moving towards a “free market” economy. This policy shift is consistent with the prevailing developmental views of the major international financial and economic institutions and of the major industrialised nations (which will form a given assumption for this thesis). A companion policy assumption fostered today by the international financial institutions and major industrialised nations is that essential to a sound market economy is a viable rule-based legal infrastructure that incorporates a substantive and procedural “rule of law” orientation. The recent economic legal reforms being undertaken by Saudi Arabia involve both enhancements and modifications to the basic Islamic law framework required under the Saudi Constitution to help facilitate the growing domestic demands of the Saudi economy and society and the de facto introduction of “modem” Western-based practices, approaches and techniques respecting commercial and financial transactions. That would be more attractive to foreign investors and financiers. While such reforms should make a positive contribution to the development of the desired market-based system, the overall effectiveness of these new reforms, as argued in this volume, may be adversely impacted or impeded by the existing de facto duality created by these reforms. This existing de facto duality is exemplified by having Islamic law (i.e., Shari’a) as the paramount and primary legal system and, within this overall system, the separate, enactment of other positive laws related to the commercial, banking and financial sectors (i.e., “a system within a system”). This thesis argues that this current Saudi notion of legal duality needs to be reevaluated and an internal reconciliation needs to be effected to avoid any negative implications on the functionality of the financial system and on the effectiveness of financial transactions such as, merely by way of selective example used in this volume, securitisations and secured transactions, which are important elements in a “modem” market-based economy. To this effect, Saudi Arabia may consider the - advisability of further dualising the Saudi financial system whereby the “Western- based” component of the Saudi financial system is not functioning within an Islamic Shari'a system but alongside an Islamic financial system (i.e., a system alongside a system) as is the case in a successful emerging economy such as Malaysia. In doing so, Saudi Arabia is also advised to consider the “segregation” phenomenon, which is used in the Dubai International Financial Centre (DIFC), to segregate its conventional financial component from any inconsistencies with other Saudi laws. It is suggested that the Saudi government in implementing a combination of the Malaysian and DIFC models can better develop a complementary and reinforcing dual “parallel” financial system structure of a modem Western-oriented system and a modernised Islamic financial system, with both operating legitimately under the “umbrella” of an Islamic grounded Constitution. In effect, a dual financial system should provide an opportunity for the Saudi government to have the better of both worlds: a special and robust financial system that is well-rooted in the domestic culture and interconnected with the growing Islamic regional financial markets in the Gulf Region and that also makes foreign investment and financing in Saudi Arabia and the Region more attractive and “secure” while making it feasible to link it into the broader “global” international financial markets.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available