Business Negotiations and Islamic – Sharia (IP) Law

Michael D. Moberly, Principal, Founder, kpstrat

This paper and accompanying rationales are intended to encourage business – professional service firm leadership, boards, and investors, et al

  • to allay any reluctance to recognize the relevance of seeking familiarity with cultural and religious perspectives of Islamic and Sharia (law) on matters related to products of one’s mind, e.g.,
    • IP (intellectual properties), i.e., issued patents, copyrights, trademarks, and perhaps trade secrets, and
    • various forms-context-applications of intangible assets, i.e., inputs of intellectual, structural, and/or relationship capital, insofar as,
    • distinguishing – unraveling the origins, development, valuation, proprietary status, safeguards, and ownership-use rights of either, relative to
    • buying, selling, licensing, using, or otherwise transferring business things intangible.

This paper posits that…

  1. most business propositions – initiatives – negotiated transactions, etc., are obliged to recognize various forms – contexts – applications of intangible assets will, inevitably, be in play, and,  
  2. when-if the intangible assets being sought lie with – are held in entities in in which Islamic – Sharia (religion) beliefs-perspectives regarding those assets are applicable.
  3. same (may, whole or in part) serve as parameters – perspectives which business leadership – negotiators – investors are (professionally, fiduciarily, personally) obliged to acknowledge and consider, preferably, in advance.

Sharia (law, context) is still (variously) considered by some as unharmonious – incompatible with (many western) business practices and conventional (western) IP law, insofar as business things intangible contributing to – embedded in products, services, goods, brands, etc., insofar as transactionally negotiating the…

  • value and/or ownership rights to same in buy-sell-license contexts,
  • various inputs – contributions – reliance on intangible assets for (product-service-brand) value, competitive advantage, revenue generation capability-capacity, and sustainability.

Business transaction negotiators are obliged to (a.) consider – prepare for the above and (b.) avoid presuming conventional (western) business negotiation practices will or necessarily should prevail, while (c.) accommodating country-government variations of IP issuance, legal practice – precedent.

My rationale for drawing attention to the origins, development, and ownership of a range of business’ intangible assets, arises from my role as an intangible asset strategist – risk mitigator, which align with this universal economic fact…

80+% of most business’s value, sources of revenue, competitiveness, brand, and sustainability, etc., (today – foreseeable future) lie in – emerge directly from intangible assets, i.e., various forms, contexts, and applications of intellectual, structural, and relationship capital which converge at the right place, right time, right way, and right cost (preferably by design) to produce attractive – lucrative – competitive and sustainable business operating cultures.

The various understandings – perspectives I hold and continue to glean (over many years) regarding Sharia (law) evolve largely via the good sensegood fortune to…

  • seek conversation with individuals who self-identify as Islamic scholars, along with university faculty, and business security advisors, and
  • study their work – papers (and those of others) published (vetted) in open sources.

Particularly useful (early) research – perspective on these matters (which I relied) was produced by Silvia Beltrametti (initially titled) ‘The Legality of Intellectual Property Rights Under Islamic Law’, which

  1. shed important (and, what I viewed as objective) light insofar as awareness to minimize uttering (careless, perhaps un-recognized bias) which could materialize – be interpreted as irreversible missteps insofar as introducing, proposing, discussing, and negotiating a transaction in which intangible assets and IP are in play, in ways that do not wholly disturb or subordinate conventions of western IP law, and, 
  2. by Beltrametti’s admission, this research was not intended to serve as a basis to sort out the distinctions between western and Islamic – Sharia views of IP law or practice.

For some time, I have sensed the tenants of Sharia can be respectfully regarded beforeduring – after negotiations wherein IP – intangibles are in play and the value, proprietary status, ownership, competitive advantages, revenue generation capacity-capability, and sustainability of either are recognized as relevant contributors, factors, and variables which are obliged to be considered and negotiated

  • even though Sharia may not (separately, specifically differentiate) recognize either in (variously western or conventional) contexts.

Importantly, there is no intent in this paper toirresponsibly or irreverently misconstrue, disrespect, or otherwise challenge the tenants, sanctity, or relevance of Sharia perspective to the issues described here, nor is there intent to favor preference to western conventions, insofar as…

  • business operations and/or negotiating business transactions, or the
  • treatment – valuation – ownership – disposition of a business’s intangible assets and issued IP,
  • especially when – if either may be deemed proprietary, play contributory roles, and produce value, competitiveness, and generate revenue to-for a business or a brand.

Here – now, parties’ consideringanticipating negotiating most business transactions are (fiduciarily) obliged to…

  • exhibit familiarity with and respect for, not only the other parties’ work product, which may influence control, use, ownership, and rights to whatever intangible assets are in play.
  • recognize (in advance) the various intangible assets in play and their relevance to achieving a desired – sustainable outcome.
  • seek – develop (negotiation) language and strategies which are respectful of and compatible with business cultures in which the assets are held and used,

Too, negotiators are obliged to negotiate towardprinciples – tenants – precedents wherein western constructs of IP law show reasonable compatibility insofar as accommodating each parties’ preferences, needs, and governance, e.g., standards applied to…

  • intangible asset management and valuation, etc., relative to buy, sell, trade, license, joint use, transfer, and revenue generation, etc.

There are numerous professional service (law, accounting) firms citing (conventional) expertise in western and international aspects of IP law and valuation, etc., common to the G8’s, WTO (World Trade Organization), and signatories to TRIPS (Trade Related Aspects to Intellectual Property Rights).

However, to confidently – perhaps consistently guide businesses and clients in transactions – negotiations – outcomes wherein multiple – mission essential matters may purposefully -asymmetrically and aggressively arise @ keystroke speeds to potentially affect the intangible assets in play…this should translate as rationale for advance preparation as being conveyed here.

Some businesses and transaction negotiators (either seeking existing – held intangible assets) may rationalize their reluctance to consider pursuing same if-when there may be potential of Islamic – Sharia influence, more so perhaps,

  • if-when ‘the well’ so-to-speak, has been previously – adversely influenced – characterized to produce – conjure perspectives – presumptions that such an engagement may lead to (a.) reputational risk exposures, and otherwise, (b.) too-big-a-challenge to consider responsibility.

Let there be no doubt, there are adherents of Sharia who convey satisfaction in voicing – dramatizing – displaying wholly contemptible perspectives – actions toward all-facets-of-women’s lives. That alone, obliges little or no entrée by legitimate business leaders – investors to seek any form of – path to engagement for the foreseeable future. The ‘reputational risks – costs’ to those who may consider doing so, would far exceed any potential benefit and would likely forever and correctly doom same to being considered the proverbial ‘bottom feeder’.

My discussions – research leads me to conclude, the despicability described above, does not reflect the beliefs – perspectives held – advocated by all adherents of Sharia, rather an extreme.

A perspective conveyed in this paper (blog post) is, there are numerous geo-strategic (economic, competitive advantage) indicators which suggest…

  • businesses which are (already, foreseeably, sustainably) intangible asset intensive – dependent, and
  • reliant on periodic influxes of new – marketable – competitive – revenue generating business things intangible for branding – re-branding products and/or services, etc.
  • may find it prudent – beneficial to consider developing familiarity with distinctions – ranges – continuums of Islamic – Sharia law (aside from the despicable described above) and their respective treatment of,
    • products of the mind, inindividual, entrepreneurial, business-to-business contexts, ala intangible asset (technology) transfer and/or licensing, etc.

Prudent (preparatory) preludes to proposing, differentiating, and valuing ‘desired and negotiated potentials’ forwhateverintangible assets are being sought and may bein play…

  • its’ essential the parties and their advisors – influencers ‘arrive at each negotiating table’ with current – practical – respectful clarity regarding various (regional – religious) issues which may emerge, e.g., contingencies and/or ‘walk-away lines-in-the-sand’.

Proposal – transaction developers, negotiators, and negotiating positions are (fiduciarily) obliged to have considered a range of ways either can-may proceed absent overt attempts to wholly dominate a proceeding which can stifle, undermine, and/or include (unnecessary – un-recoupable) costs – time – disadvantages to a potential negotiation outcome.

A strategy encouraged here is for negotiators to self-assume obligations to bring ‘negotiable clarity’ to aspects of a business proposal and subsequent transaction which can amenably translate as a respectful win-win configurations, e.g., prudent inevitabilities, not troublesome or insurmountable risks, ala

  • FUD factors (fears, uncertainties, doubts), which (if-when) left un or ill-considered, can materialize @ keystroke speeds as mis-steps – miscues and to firm-business-wide reputation risks.

Readers are reminded, the intent here is to describe important – variously obligatory considerations for ‘business transaction negotiators’ to reasonably elevate the probability and lower the vulnerability and criticality (throughout a negotiation) that the relevance, sovereignty of the business cultures represented and those who hold – wish to buy – sell – use particular-intangible assets and/or IP, are neither abridged nor disrespected.

As always, reader comments are encouraged and welcomed.

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