خرید Fatwā و اعتماد: مقررات محافظ موثر برای حقوق مصرف کننده در دارایی اسلامی Fatwā Shopping and Trust: Towards Effective Consumer Protection Regulations in Islamic Finance

INTRODUCTION While speaking on the palpable signs of fatwā shopping in the Islamic finance industry at an international event sponsored by the Islamic Development Bank, in January 2009 in Kuala Lumpur, it was surprising to see a senior researcher of the Islamic Financial Services Board (IFSB) quickly corroborating the alleged incidences of fatwā shopping taking place in the industry.1 Such categorical corroboration, though not sought for at the time it was made, should not perturb Islamic financial consumers, because further studies on fatwā shopping practices in the industry corroborate these trends in the Islamic financial services industry, particularly in cross-border transactions (Foster, 2009; Rahajeng, 2012). There are different views with regards to the origin of the expression “fatwā shopping”. While the accounting and auditing professionals refers to “opinion shopping”, the legal professionals identify “forum shopping” in private international law. The expression “opinion shopping” which has its roots in the accounting and auditing literature originated from United States securities litigation in the early 1970s (Hawes and Sherrard, 1976; Lowenfels, 1971; Sloan III, 1972). On the other hand, “forum shopping” in private international law is the practice of choosing the most favourable jurisdiction to file a claim. In the United States, though there have been different views regarding the origin of “forum shopping”, the term was first used by retired U.S. District Judge, Irving R. Kaufman in 1952 (Maloy, 2005). It thus appears there are both positive and negative sides of forum shopping which is also true for fatwā shopping as will be explained in this study. Over the past four decades, the Islamic finance industry has transformed from a niche industry to a monumental force to be reckoned with in the global financial system (Hassan et al., 2013). Apart from the concerted efforts of Islamic economists and financial engineers in coming up with competitive products, the Sharī‘ah scholars have also played a prime role in guiding the industry since its modern re-emergence in the world (Hamza, 2013). Following a recent study undertaken by the researchers on the legal implications of ‘fatwā shopping’ and its far-reaching effects in the development of the global Islamic finance industry, this study examines another dimension of fatwā shopping with special reference to consumer trust and consumer protection regulations.