وھبۃ الزحیلی بطور فقیہ: الفقہ الاسلامی وادلتہ کا مطالعہ

The development of Islamic Jurisprudence tradition over time produces the Juris-prudential product with different approaches, methodologies, and interpretations. Nowadays, the difference of opinion in the Islamic Jurisprudence is marked by the reconstruction of the jurisprudential tradition because they are no longer relevant to address the issue of masculinity. In this study, the author discusses one of the recent literatures of Islamic Jurisprudence, Al Fiqh Al Islami wa Adilatuhu, written by Wahbah Al-Zuḥaylī (1932-2015 AD). In this article, he tried to reach a compromise between classical jurisprudence with a contemporary one; this is due to some modern views that classical account is no longer able to solve the recent problems. Therefore Al-Zuḥaylī tried to integrate classical interpretation to the contemporary style with a consistent method. To find some pictures of his jurisprudential approach, the author discusses the different aspects of his masterpiece in this paper. Keywords: , ,  

Tort Liabilities of Multinational Corporations in the Perspective of the Principles of Separate Legal Entity and Limited Liability

The rise of the modern corporation coincides with that of the modern state and both have a fascinating history that revolves around the concept of the artificial legal person, which grants a separate personality to both institutions. The original joint-stock companies, endowed with legal personality, were soon supported by the legal device of limited liability for a large number of small shareholders whose personal assets needed to be shielded from creditor claims. These two devices led to a rapid growth in capital formation, which soon extended their reach beyond their places of domicile to vast continents with immense resources. The corporations, now called multinational corporations, acquired huge sizes and complex structures sometimes making it difficult to identify where the actual ownership lay. The complex corporations spread their tentacles far and wide till they surrounded the resources and wealth of underdeveloped and poor countries. All this history has led us to the conclusion that multinational corporations (MNCs), which usually operate through complex structures of parent and subsiadiries, while doing some good, brutally exploit the natural resources of underdeveloped countries often caring little for the occasional excesses they commit by way of crimes, torts, contractual violations, and environmental disasters, yet they are able to evade all liability by benefiting from the two legal shields of separate legal entity and limited liability of the shareholders that were justifiably intended in the first place for simple rather than complex corporations. Poor and vulnerable countries like Pakistan, while recognizing that they are in dire need of the vast amount of skills and resources that these organizations bring with them, must adopt some regulatory strategy to deal with the threats that these corporations might pose. The strategy lies primarily in the law of torts, although other measures may also be vii contemplated. This study, therefore, raises the question whether Pakistan has the capacity to deal with these complex and extremely powerful organizations through its law of torts? It also questions whether the legal system of Pakistan, which has a weak and underdeveloped law of torts, is adequately equipped to deal with the colossal issues sometimes raised by the presence of these giant corporations. In the absence of a developed law of torts, should Pakistan, then, look towards international law and other measures like CSR, taxation and voluntary codes of conduct to secure itself, its resources and people against the possible excesses committed by the multinational corporations? The situation calls for a comprehensive study that examines the legal environment in Pakistan in the light of the works of the leading thinkers and writers in the field, as well as in the light of measures adopted by other countries, especially India, although India is a giant market as compared to the smaller market available to the MNCs in Pakistan. This study attempts to do all this. It suggests that Pakistan needs to judge whether the solutions proposed for the problems arising out of the operation of MNCs in developed countries and large markets are really applicable to Pakistan. This study, therefore, emphasises that the problems arising out the operation of multinational corporations in developing countries, especially smaller countries like Pakistan, must be viewed comprehensively to take into account not only the remedies found in the law of torts, or amendments required in the fundamentals of company law, but all possible legal and persuasive solutions that may or may not have been considered by modern scholars studying other larger jurisdictions. The first chapter of this study, after elaborating the serious problem posed by the multinational companies and explaining the investment needs of the country, describes at some length the weaknesses and inadequacies of the law of torts in Pakistan. Added to this viii is the lack of awareness among the masses, even the educated among them, about the impending danger for the people and for the environment in which they live. The chapter also points out that when the assets of a subsidiary are not sufficient to cover the damage caused, it may become necessary to pursue the parent of the subsidiary in its home country or other foreign jurisdiction. The problems posed by legal personality and limited liability within the municipal law, to some extent, acquire a menacing form in the foreign jurisdiction, which requires a thorough understanding of these attributes of the corporation. There is thus a dire need of assessing the whole situation and determining the remedies and the courses of action available in case of devastation caused by these companies. In addition to this, there is a need to create a proper information system about these MNCs and a monitoring system that will enable the country to take preventive and evasive action prior to its happening. At present there is no such system and it is not even known how many of these giant corporations are present in Pakistan. The second chapter traces the origin and growth of the multinational corporations, and notes the impact that globalization has had on this growth. It then indicates the nature of the structure—parents, subsidiaries and associated companies—through which these corporations operate, and that enables them to move and manipulate resources on a global scale. The chapter then describes around half a dozen significant cases in which disasters have been caused and litigation has been taken up in the home countries. This is done to highlight the size of the problem that developing countries like Pakistan face, as well as to recognize the nature of the litigation that may ensue after some unfortunate disaster. Finally, the chapter tries to identify some multinational corporations operating in Pakistan so as to form a representative sample, because a proper source of information is not ix available from which data about these corporations operating in Pakistan can be easily gathered. The third chapter tries to explain that the direction can only be clear once the two attributes of personality and limited liability—behind which these corporations hide in courts and during litigation—are thoroughly analysed and studied to understand their current jurisprudence in the world. Accordingly, the attribute of personality for the whole group has been examined in this chapter and the implications of limited liability for the group and its members will be analysed in the next. There are several theories that are put forward for the existence or grant of personality. Each theory has its own implications for how far one can go in restricting the movement and actions of these corporations. A study of personality, its underlying theories and the law governing such groups tells us what kind of action is possible for protecting developing countries in the light of remedies available. A search is, therefore, undertaken in this chapter, in various jurisdictions, to assess whether a law of groups is actually found in some jurisdictions. The studies undertaken by authors like Blumberg, and the law of the “Konzern” in Germany, are surveyed. The conclusion reached is that while the law may treat them as a group where disclosures are required for profit distribution and for taxes owed to the governments, the group is not treated like a group with a single personality for purposes of torts. After introducing the idea of tort claims and multinationals, the fourth chapter analyses the concept of limited liability and tort claims at some length. The concept is studied in the context of tort claims against multinationals and corporate groups. The different proposals submitted by writers and experts are surveyed and studied. The relevance of limited liability for multinational group is then affirmed. Litigation in the USA under the Alien x Tort Claims Statute (ATS) is studied in considerable detail till the decision in the Kiobel case. The Kiobel judgement spelled out the virtual demise of ATS Remedies. Experts are now contemplating other remedies like direct tort liability of multinationals under State tort laws in the USA. In addition to this tort claims against multinationals are also possible in the UK, Canada, Australia and some European countries. The conclusion, however, is that the enthusiasm that was once visible through ATS litigation is no longer there, and it will take some time before precedents under the other options are developed and are made available. The last chapter then focuses on the possible actions that are possible for Pakistan in the light of the study that has been undertaken in the previous chapters. These include general proposals like improvement in the law in general as well as specific proposals directed towards identified remedies. These proposals and suggestions are summarized and recorded in the final chapter that deals with conclusions and recommendations." xml:lang="en_US