Otorgar las facilidades necesarias a efecto de que se realicen las investigaciones de incidentes/accidentes A S 1.5%

It would be inaccurate and misleading to suggest that Sharia law is the law of Saudi Arabia. While this is, to large extent, correct, it does not reflect the exact content of Saudi law since the scope of Saudi law is wider than Sharia law; in other words, Saudi law consists of rules of Islamic origin, as well as laws and regulations of foreign origin, which are adapted so that they do not conflict with Sharia. Perhaps the most precise account of the Saudi legal system is given by Vogel who describes it as having two categories of rules: one founded in Islamic law and the other a category of ‘man-made’ law (positive law).128 _{Vogel further notes that while the former is ‘fundamental and dominant’, the latter}

is ‘subordinate’.129

Remarkably, the BLG 1992 lacks clear mention of legislation as a source of law in Saudi Arabia. Nonetheless, the regulator’s entitlement to enact laws and the binding characteristic of state legislation can be inferred from the BLG 1992. For example, the Law clearly recognises the jurisdiction of Legislative (Regulatory) Authority to introduce new laws130 _{and additionally charges the King, as head of state, with the duty to oversee the}

127 _{Section 1 of the Royal Order No. (A/20) dated 30/11/2014. The recent Royal Order was based on the}

Board of Senior Ulama Decision No. 236, dated 4 February 2010.

128 _{F E Vogel, ‘Islamic Governance in the Gulf: A Framework for Analysis, Comparison, and Prediction’ in}

G Sick and L Potter (ed), The Persian Gulf at the Millennium: Essays in Politics, Economy, Security, and

Religion (London, Macmillan Press Ltd 1997) 275–276.

129 _Ibid

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implementation of state laws.131 _{Furthermore, courts are statutorily required to apply ‘laws}

not in conflict with the Qur’an and the Sunnah’.132 _{Although legislation as a source of law}

is not explicitly recognised, the Saudi legislature, through the use of Islamic principle of public interest (al-maslaha al-mursalah), has the right, recognised by Sharia, to pass laws and regulations to meet the needs of modern society.133 _{The public interest as a basis of}

law-making is established by the BLG 1992,134 _{so long as the exercise of legislation}

produces laws that fall within the Sharia framework.135 _{In fact, the flexible nature of}

Islamic law, which includes the general principle that ‘all things not specifically prohibited are allowed’, clears the way for the codification of foreign legal ideas in Saudi Arabia.136 _It

should again be stressed that the legitimate exercise of legislation on the basis of public interest is only valid for ‘supplementing’, but not ‘contradicting’ Sharia,137 _{an important}

consideration that will be taken into account later when examining the feasibility of reforming the Saudi law of directors’ duties by way of legal transplantation.138

It is unquestionable that the economic development of the Kingdom has been a major contributing factor to legal change and reform.139 _{As the government’s revenues from oil}

products rose and the Saudi economy began to develop, the Saudi rulers attempted to harmonise Islamic rules with economic, social and industrial growth, by producing a body of statutory laws to deal with a vast range of areas, such as constitutional and criminal matters, judiciary and human rights, health and education, and commerce and finance.140 _It

is worth mentioning that French law inspired most laws introduced during the early period of Saudi legal reform.141 _{This influence was attributable to the fact that the drafting of those}

laws was done by Egyptian legal experts who followed the French legal tradition. As they worked in close collaboration with Saudi scholars who also received their legal education from schools of law in France, Egypt, Syria and Lebanon,142 _{it is easy to see the logic}

behind the influence of French law over the content of many Saudi laws, including those

131 _{See article 55 of the BLG 1992.} 132 _{See article 48 of the BLG 1992.} 133 _{See Ansary (n 119) 5.}

134 _{See article 67 of the BLG 1992.} 135 _{Ansary (n 119) 5.}

136 _{Hanson (n 52) 289.}

137 _{R Aba-Namay, ‘The New Saudi Representative Assembly’ (1998) 5 Islamic L & Soc’y 235, 236 – 237.} 138 _{This issue will be further discussed in Chapter 6 in this thesis.}

139 _{See Sfeir (n 124) 733–734; Hanson (n 52) 272.}

140 _{The first piece of legislation enacted in the history of Saudi Arabia was the CCL1931. The list of primary}

laws as well as main secondary statutes issued by the Council of Ministers are on the website of Beureau of Experts at the Council of Ministers <www.boe.gov.sa.>

141 _{Hanson (n 52) 288.}

142 _{Ibid 288–289. Legal systems of aforementioned Arab countries are influenced by French civil law}

20

that fall within the area of commercial law. This is exemplified by the CCL 1931143 _{and the}

CL 1965,144 _{which are largely inspired by French law. Hence, it has become common to}

describe Saudi law, at least in relation to its commercial law, as a French-based legal system.145 _{However, this does not mean that Saudi lawmakers were confined to following}

the French civil legal system and were reluctant to adopt legal ideas found in other legal systems. For example, Saudi benefits from the Anglo-American model and experiences in respect of the reform of capital market law and corporate governance regulation. According to Beach, who had a direct hand in shaping the content of the CML 2003, the law includes rules based upon existing securities laws from US, European, Asian and Middle Eastern sources.146 _{Recently, the MOCI, which has participated with the CMA in}

preparing the new CGRs 2017, clearly stated that many foreign and international documents and reports in respect of corporate governance (e.g., the UK Corporate Governance Code) had been drawn on while preparing the new draft of the CGRs.147