Sat, Apr 30, 2016
A A A
Welcome Guest
Free Trial RSS
Get FREE trial access to our award winning publications
Opalesque Islamic Finance Intelligence

Lex Islamicus: Preventative & Remedial Measures Protecting Sukuk Investment Account Holders Khalil Jarrar, J.D.

Monday, August 31, 2009

Lex Islamicus: Preventative & Remedial Measures Protecting Sukuk Investment Account Holders
By Khalil Jarrar, J.D.

In our first two articles of Lex Islamicus we have explored legal issues facing Islamic finance in one article and Murabaha in a separate article. Moving forward we will be combining both compliance and regulatory issues to benefit readers in an approach that will define each instrument and the legal implications and challenges facing it. Our focus this month will be on the most popular Islamic finance instruments beginning with Sukuk structures.

The growth of Islamic finance has resulted in a thriving multi billion-dollar market in Shariah compliant financial instruments known as Sukuk (plural of the Arabic word Sakk, meaning certificate). They are commonly described as Islamic bonds, trust certificates, or Islamic securities and are structured and traded in the capital market in accordance with Islamic law.

The Accounting and Auditing Organization for Islamic Financial Institution (AAOIFI) defines Sukuk as certificates of equal value representing undivided shares in ownership of tangible assets, usufruct, and services or the ownership of the assets of particular projects or special investment activity . The AAOIFI has identified fourteen different types of Sukuk bonds, among these, Sukuk al-musharaka (partnership) and Sukuk al-ijarah (lease), these being the most common structures currently.

In today’s turbulent financial markets, Sukuk structures have gained popularity as an alternative means to conventional financial instruments. To maintain this growth and gain consumer confidence, mechanisms have to be in place protecting the Sukukholders’ rights.

Future discussions will explore available measures protecting Sukuk account holders by examining initiatives aimed to improve Corporate Governance and effecting foreign judgments through Arbitral Awards. Throughout we will take an international approach, using globally recognized governance standards set forth by the Basel II Accords and the New York Convention of 1958 for effecting foreign judgments through Arbitral awards.

Although good governance is consistent with Islamic principles, the phenomenal growth of Islamic financing over the past several years has outpaced the development of standardized regulation, calling for a thorough examination of this growth-borne regulatory and Corporate Governance gap.

Corporate Governance (CG) is defined by the International Chamber of Commerce as; “the relationship between corporate managers, directors and the providers of equity, people, and institutions who save and invest their capital to earn a return.” It ensures that the board of directors is accountable for the pursuit of corporate objectives and that the corporation itself conforms to the law and regulations. The IFSB has taken the task of creating best practices and recommendations to protect the rights of investment account holders. These recommendations may vary with the different Sukuk types as to what duty is owed under each Sukuk structure and financing mode. The upcoming article series will expand on financing modes of such structures with special attention to the most common Sukuk types and the adherence to the International standards of corporate governance.

In addition to preventative measures, we have to examine available mechanism to remedy the injured parties. Arbitration as a private form of dispute resolution that has recently gained traction in resolving International disputes. The New York Convention of 1958 is one of the most important and successful United Nations sponsored commercial law treaties. As of January 1, 2009, 143 states, out of 192 member States, have adopted the New York Convention including all the major players in the Sukuk bonds market, Bahrain, Malaysia, Qatar, and UAE. As Sukuk issuance have gained global acceptance, Arbitration can be an effective tool to resolve international disputes arising under provisions of Sukuk contracts. It is important to examine domestic regulatory laws and its adequacy to protect investors and available mechanisms to enforce such laws effecting foreign judgments under the 1958 New York Convention.

In his published dissertation, 2004, Ali Arsalan Tariq , identified three groups of literature that have been written about Sukuk; the first group involves theoretical work, which principally deals with the possible alternatives of issuing financial instruments that can be acceptable within the statutory Islamic legal framework. The second group of literature comprises of the actual Sukuk issuance prospectuses of various corporations, the third group of literature deals with alternative forms of fixed income securities and asset management issues. Such literature is pertinent for analyzing the competitiveness of the Sukuk framework.

The fourth group of literature with renewed attention to the rights of investment account holders, both preventative and remedial measures, which will be the focus and theme of our Lex Islamicus series. Although the research method will be adopting a comparative analysis, distinguishing the differences between conventional bonds and Sukuk structures and the duties owed under both common law and Islamic law, the use of empirical surveys will be inevitable to support any claims and contentions that might be concluded.

Once issues and gaps are identified in the current Sukuk structure system, recommendations can be made where the current system falls short of meeting the acceptable international standards in both preventative and remedial measures collectively or under specific jurisdictions. We aspire to generate interest with a more interactive approach including feedback from readers, subject matter experts and critics alike.

Your feedback and comments are very important to us, please feel free to contact the author via email.



Article Link

<< Go Back to Archive

Today's Exclusives Today's Other Voices More Exclusives
Previous Opalesque Exclusives                                  
More Other Voices
Previous Other Voices                                               
Access Alternative Market Briefing


  • Top Forwarded
  • Top Tracked
  • Top Searched
  1. Hedge funds see $14.3bn outflows in Q1, CTAs and multi-strategy lead net inflows[more]

    Komfie Manalo, Opalesque Asia: The hedge fund industry saw net outflows of investor capital in the first quarter of the year, totaling $14.3bn, data from Preqin showed. This continues from the $8.9bn overall net outflows that funds recorded in Q4

  2. Third Point calls Q1 "catastrophic" for hedge funds[more]

    Bailey McCann, Opalesque New York: The first quarter of this year was rocky for hedge funds based on aggregate performance from the industry, but now we are beginning to hear what the managers thought of it as quarterly letters make their way to investors. Dan Loeb, CEO of New York-based $17 bill

  3. Asia - Stabilization of China's capital outflows may hinge on Janet Yellen, Fink says China to do well this year as bubble threat postponed, Chinese hedge fund to invest in India’s infrastructure[more]

    Stabilization of China's capital outflows may hinge on Janet Yellen From Bloomberg.com: Whether China’s recent stabilization of its currency and capital outflows continues -- or downside pressure reignites -- may hinge in large part on Janet Yellen. If the Federal Reserve chair sticks to

  4. …And Finally - After all, judges are human too[more]

    From Newsoftheweird.com: In March, one District of Columbia government administrative law judge was charged with misdemeanor assault on another. Judge Sharon Goodie said she wanted to give Judge Joan Davenport some files, but Davenport, in her office, would not answer the door. Goodie said once the

  5. Comment - Unmasking the men behind Zero Hedge, Wall Street's renegade blog[more]

    From Bloomberg.com: Colin Lokey, also known as "Tyler Durden," is breaking the first rule of Fight Club: You do not talk about Fight Club. He’s also breaking the second rule of Fight Club. (See the first rule.) After more than a year writing for the financial website Zero Hedge under the n