Jurnal Hukum Novelty
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Understanding the Place of Islamic Arbitration within the Nigerian Law
Full text linkIntroduction to The Problem: For many years, Nigerian Muslims had long desired a wider use of Shari’ah outside its traditional usage in worship and family relations. This agitation has led to a rise in the use of Shari’ah in commercial transactions and banking and financial products lately. As the use of Shari’ah in this realm of commercial relationships increases, conflict is inevitable and this requires appropriate dispute resolution mechanisms to settle it. Not only that, Muslims in Nigerian wish to observe and be governed by Shari'ah in all aspects of their lives including their commercial dealings, they also desire a resolution of their disputes in accordance with their faiths and beliefs. Thus, the contemporary laws in Nigeria need to be merged with Islamic law principles in order to meet the demands of its citizens.Purpose/Objective Study: This paper aimed to examine the legal status of Islamic arbitration and its awards within the Nigerian legal framework particularly in area of commercial disputes.Design/Methodology/Approach: This paper employed doctrinal methodology of legal research. It therefore adopts descriptive and analytical methods. It involves primary sourcing materials from Quran, Sunnah, Acts and Cases. Secondary sources include journal articles, textbooks, official documents online and internet materials.Findings: This paper revealed that the notion of a tahkim (arbitration) subsists and recognise in the Shari’ah law and in Nigerian legal system. However, provisions of Arbitration and Conciliation Act (ACA) 1988 do not consider the idiosyncrasies of Islamic injunctions, despite growing investors’ interests in Islamic commercial transactions. ACA do not provide a Shari'ah compliant arbitration alternative for both Muslim and non-Muslim parties who are willing to arbitrate under the Islamic law. It is consequently suggested that peculiar nature of the Islamic arbitration and awards should be considered in the ACA and the relevant Sections should be amended accordingly.Paper Type: Research Articl
Accelerating Business Law Dynamization through Proposed Amendments to Indonesian Consumer Protection Law
Full text linkIntroduction to The Problem: The Consumer Protection Law No. 8 of 1999 which was enacted in 2000 has been in force for over 20 years. The current circumstance in the realm of business law requires more progressive regulations on digital business activities, more efficient dispute resolution, and effective consumer protection due to the rapid technological developments. Hence, the need of an amendment to the current consumer protection law must be examined thoroughly and analyzed deeply.Purpose/Objective Study: This research aims to examine and to present the arguments on several issues in relating to the urgency of amending the Consumer Protection Law No. 8 of 1999 in order to accelerate the dynamization of business law.Design/Methodology/Approach: This is a doctrinal legal research that uses a qualitative approach. In this research, the authors utilized secondary data sourced from literature study on the primary, secondary, and tertiary legal materials. The authors analyzed the data by using Systematic Content Analysis which is frequently used by social scientists to analyze the inteview tranrscripts, literatures, and field notes, among other sources.Findings: The results indicate that there are six noteworthy points regarding the extent of the business entity, standard clauses, data protection, and some issues on a dispute settlement institution. These are sufficient to support in proposing an amendment to the recent Consumer Protection Law.Paper Type: Research Articl
Implications of Utilizing Protected Forest Areas for Geothermal Business: A Legal Analysis
Full text linkIntroduction to The Problem: Geothermal as an alternative and renewable energy is mostly located in the forest areas, including protected forests, where the use of forest areas for non-forestry activities is very selective and does not change the function of the forest itself. Geothermal and forestry regulations require synchronization regarding the use of protected forest areas so that they do not cause legal conflicts.Purpose/Objective Study: There are arose problems namely the existence of conflicting norms in regulating the use of protected forest areas for geothermal exploitation, between the Geothermal Law and the Forestry Law in combination with Government Regulation No. 24 of 2010 concerning the Use of Forest Areas and Regulation of the Minister of Environment and Forestry on Leasing of Forest Areas.Design/Methodology/Approach: This research method was normative research, using a statutory approach equipped with a comparative approach.Findings: The research finding was the setting of leasing forest areas for geothermal exploitation was contradictory and did not function to carry out the orders of the Forestry Law. The research implication is that the Government together with the Parliament must put into comprehensive special authorities and regulations related to the management and utilization of energy in forest areas so that there is no overlap and legal uncertainty in the use of forest areas.Paper Type: Research Articl
Balinese Local Wisdom's Perspective on Legal Protection for Children as Victims and Perpetrators of Sexual Abuse
Full text linkIntroduction to The Problem: The low quality of child protection based on the perspective of Positive Law in Indonesia has drawn much criticism from various elements of society who seem to prioritize the interests of victims compared to perpetrators of rape. Because without optimal protection, children will only become victims of a society that tends to be patriarchal. Therefore, the concept of restorative justice based on local wisdom is one of the solutions in legal protection for victims and children who commit sexual harassment towards minors who prioritize recovery.Purpose/Objective Study: This study aims to understand, explain, and analyze the existence of legal protection for victims and children who sexually abuse minors from the perspective of Balinese local wisdom.Design/Methodology/Approach: This article is the result of legal research, with statutory approaches, conceptual approaches, and case approaches. The types of legal materials used in this research are primary legal materials, secondary legal materials, and tertiary legal materials.Findings: Legal protection for children based on local wisdom is a form of settlement that can be used against children as victims and children as perpetrators referring to the provisions of Article 1 number 6 of Law No. 11 of 2012 concerning the Juvenile Criminal Justice System. The protection in question is the existence of traditional village institutions in Bali as an effort to protect children.Paper Type: Research Articl
Role of Islamic Law in the Efficient Management of Debt in Nigeria
Full text linkIntroduction to The Problem: Nigeria's Q4 2021 Real GDP reached N20.33 trillion, with a 3.98% YoY growth, marking the fifth consecutive quarter of positive growth post-2020 recession. Despite this, the economy is deemed in crisis. Concerningly, the government is accumulating more debt to service existing obligations, posing sustainability issues and conflicting with Shari’ah wealth management principles.Purpose: This study aims to analyze the impact of Islamic law on effective debt management in Nigeria, specifically addressing the consequences of economic crises that result in substantial national borrowing. Additionally, it aims to highlight Sharia jurisprudence as a viable solution to alleviate Nigeria's economic challenges.Design/Methodology/Approach: The Methodology employed in this study is purely doctrinal method of legal research. Hence, the study places reliance principally on the available literature by which the study explores relevant materials such as text books, journals and internet facilities. Importantly, the study finds most useful the primary sources of Shari’ah which are the Qur’an and Sunnah as well as the secondary sources which include Qiyas and Ijma’.Findings: The study finds that the economic crisis which Nigeria has found itself as a result of the multiplier effect of excessive public borrowing cannot be divorced from the adoption of the conventional economic system. The result reveals further that Islamic law plays significant roles in the efficient management of debt as was confirmed in the Malaysian Shari’ah compliant public debt management practices. The study proposes, by way of recommendation, the practice of Islamic Wealth Management to cushion the effect of the deficit budgets and the onerous debts on Nigeria and increase investment activities with a view to impacting positively on the country’s GDP. The study is therefore most relevant to the policymakers in the Ministry of Finance, Debt Management Office, as well as the Lawmakers in the country.Paper Type: Research Articl
Legal Protection of HARA Platform Users on the Service of Electronic Data Interchange
Full text linkIntroduction to the Problem: The digital era of technology has cut the role of third parties and made it easier for services to be run peer-to-peer; where parties can connect directly at a business scale. Business relations is always accompanied by contracts. However, nowadays conventional contracts have undergone disruption with the existence of blockchain technology. A smart contract is a contract model that uses technology that can execute the contents of the contract automatically. The existence of this technological sophistication also has implications for the exchange of data, particularly personal data. Personal data can be easily accessed through the data exchange process, but it is feared that data misuse will occur. In order to prevent the Electronic Data Interchange of personal data using this technology, data must be protected.Purpose/Objective Study: This study aims to examine the legal protection of users of the HARA platform who use smart contracts in electronic data interchange services.Design/Methodology/Approach: This research is normative juridical research with statutory and conceptual approaches.Findings: In this case, the protection includes preventive and repressive protection. Preventively through legislation with the presence of laws on ITE and laws on Personal Data Protection as well as internal regulation of platform providers, while repressively lawsuits can be carried out through litigation and non-litigation channels.Paper Type: Research Articl
Implementation of Hardship Principles on Financing Agreements Islamic Bank Due to Corona Virus Disease 2019
Full text linkIntroduction to The Problem: This research analyzes covid-19, designated a disaster by the Indonesian government, especially its correlation to finance agreements in Islamic banks. The determination of disaster raises the question of whether covid-19 is a force majeure or hardship. According to Financial Service Authority (OJK), non-performing financing in Islamic banks is increased. Implementation of Force majeure principle to finance agreement in Islamic bank as a government policy is not right decision.Purpose/Objective Study: this legal research aims to analyze the effects of the coronavirus disease 2019 on finance agreements in Islamic banks and how is the implementation due covid-19 to renegotiation of finance agreement force majeure principle or hardship principle.Design/Methodology/Approach: This legal research is a normative legal study with two approaches: statute and conceptual approaches. Primary sources from Finance agreements in Islamic banks and statutes/rules. Secondary sources are books, journals, research, and dictionary. The legal analysis is carried out by classification of primary and secondary sources using the statute and conceptual approaches.Findings: The spread of the covid-19 virus has had many impacts on the ability of Islamic bank debtors to carry out their achievements due to the difficult conditions experienced due to restrictions by the government. The determination of the status of covid-19 as a disaster has implications for the occurrence of forced circumstances, so it is necessary to make adjustments to the situation based on the principle of hardship for financing agreements with Islamic banks. The occurrence of hardship for sharia bank customers provides an opportunity for customers to apply for contract renegotiation in the context of adjusting problematic contracts in the form of rescheduling, reconditioning, or restructuringPaper Type: Research Articl
Insider Trading: Law of the Republic of Indonesia Number 8 of 1995 on Capital Market from Typewriters to Digital Era
Full text linkIntroduction to The Problem: Symmetric information is an essential factor in the capital market. Symmetric information will create an efficient capital market. Insider trading is one of the things that makes asymmetric information. The regulations on the capital market determine the criteria for insider trading. Insider trading is people who have non-public information on the company and earn financial benefits from non-public information.Purpose/Objective Study: This research aims to determine the insider trading criteria on the Indonesian Capital Market Law Number 8 of 1995.Design/Methodology/Approach: This research uses the normative juridical method. The study utilizes several cases that occur in countries as a discussion.Findings: This research concludes that the definition of insider trading consists of stakeholders who have interests and non-public information on public companies. The scope of insider trading is also extended to family members of stakeholders. Stakeholders include management, related companies' employees, officials, suppliers, shareholders, and their family members. The definition of family members is the spouse, children, and parents. The definition of insider trading should be extended to the current regulations. The related individuals must carry out the obligation to report share ownership.Paper Type: Research Articl
Reposition of Ta’zir and Ta’wid on Moral Hazard Behavior in Islamic Banking in Indonesia
Full text linkIntroduction to The Problem: The use of ta’zir and ta’wid in dealing with moral hazards in Islamic banking has been legalized through Bank Indonesia Regulation Number 7/46/PBI/2005 and DSN-MUI Fatwa Number 17/DSN-MUI/IX/2000. However, some scholars do not justify these policies because they are contrary to sharia rules.Purpose/Objective: This research aims to reposition ta’zir and ta’wid in dealing with moral hazard behavior. The repositioning in this context is to look for alternative ways to deal with customer moral hazard behavior.Design/Methodology/Approach: This is qualitative research involving secondary data arranged in an inductive-descriptive manner. It is also associated with a case study to obtain a complete picture of ta’zir and ta’wid in preventing moral hazards in Islamic banking. The data collected were analyzed through the stages of (1) data collection, (2) data reduction, (3) data display, and (4) conclusion/verification.Findings: Based on the results, the repositioning of ta’zir and ta’wid is necessary because, presently, its implementation contains elements of usury, which Islam forbids. Therefore, the proposed form enables customers to pay back debt in two or three installments without increasing its value in one payment. This policy enables customers whose late payment is not due to force majeure but an element of intent or bad faith.Paper Type: Research Article
Responsibility of States About Pandemic COVID-19: International Law Review
Full text linkIntroduction to The Problem: This research focused on analyzing responsibility of States about COVID-19 pandemic. The concept of international responsibility could be interpreted as a relation between the state sovereignty in national legal mechanism, and also implementation of the principles of the international law in the other sides to fix it about internationally wrongful act. Especially how states contribution to prevent, vaccines, prosperity/ social aid, and health services for people in its states.Purpose/Objective Study: This research would answer the following questions: (1). How the responsibility of states about COVID-19 pandemic under international law ?; (2). What is the dispute settlement mechanism for the fulfillment of international law? obligations by states?Design/Methodology/Approach: This research used socio-legal studies to identify between political, economy, and law approach to understanding what states responsibility regarding COVID-19 pandemic under international law.Findings: This article argued that strong relations regarding state responsibility in the face of international legal mechanisms, through international cooperation mechanisms as well as diplomatic approaches shall be prioritized, to identification regarding internationally wrongful act. Then the fulfilment of basic rights of citizens during COVID-19 pandemic such as access to health services, vaccines, and socio-economic consequences are responsible for the country. Parties that can sue the state in international liability can be from state actors and non-state actors. China as a based on Covid-19 are spread around the world are bears some international responsibility for the unquantifiable damage sustained as a direct result of the state having failed to contain the virus, and to notify the international community of its existence. Therefore, judicial mechanisms through the UN mechanism or outside the UN Mechanism to dispute settlement mechanism.Paper Type: Research Articl