By Timur Abimanyu, SH.
The Washington Post
The Polemics of Governing Law in Islamic Finance: Recent Developments and the Way Forward
The 2nd annual thematic workshop organised by the Institute of Islamic Banking and Insurance (IIBI) and the International Shari’ah Research Academy for Islamic Finance (ISRA) in collaboration with Thomson Reuters on 29th November, 2010 was a huge success with more than 120 delegates managing to attend despite adverse weather and a tube strike on the day. The workshop held in London was sponsored by Westlaw Business.
The Rationale for the Workshop Compliance with Shari’ah principles is the raison d’être of Islamic financial contracts. All Islamic finance transactions have a governing law clause. As Shari’ah is a non-national system of laws, and is subject to various interpretations, in order to create certainty about the rights and obligations of the contracting parties, English law is normally chosen as the governing law in Islamic finance cross-border transactions. There have recently been a number of commercial litigation cases heard in the English courts involving Islamic finance commercial contracts, where the issue of the governing law in such contracts came under scrutiny. From the arguments of defaulting parties in these transactions, it became apparent that there is scope for abuse via the tactic of opinion shopping among scholars and unfortunately a great deal of potential for Shari’ah invalidity arguments to be used by defaulting borrowers in order to evade their responsibilities under commercial agreements. The 2nd annual thematic workshop was organised against this background and set out to look at recent disputes, as well as to analyse the implications of the recent court decisions. It also discussed the evolving Shari’ah compliance structures and alternative dispute resolution mechanisms, as well as whether there is a need for an international convention to govern cross-border Islamic finance transactions. The Keynote Addresses The programme started with one of two keynote speeches from Alderman Michael Bear, the Lord Mayor of the City of London. He is head of the City of London Corporation and a global ambassador for the UK-based financial services industry. Financial inclusion of the Muslim population in the UK as well as the positioning of London as a leading international financial centre are the two key objectives of UK government policy for supporting Islamic finance. The Lord Mayor mentioned the various regulatory changes in the tax law for Islamic financial transactions in order to level the playing field with the conventional financial services sector. He commented that the UK is the only centre of Islamic finance in the West with five fully Islamic banks and many Islamic window operations within conventional bank structures. He also suggested that the UK is at the forefront of developing the human resources with many institutes including IIBI and universities offering Islamic finance education and training courses. Afterwards, Dato’ Muhammad Ibrahim, Deputy Governor, Bank Negara Malaysia delivered the second keynote address in which he shared the experience of Malaysia’s Islamic finance market and talked about the support by the central bank and the government of Malaysia aimed at promoting the Islamic finance industry. Since the passing of the first Islamic banking act in 1983, Malaysia has been supporting the development of the market and is now a global leader with Islamic financial transactions accounting for approximately 20% of the total financial system. Market Analysis The first workshop session, ‘Malaysia and London – Leading Beyond Islamic Finance Hubs’, was moderated by Rushdi Siddiqui, global head of Islamic finance at Thomson Reuters. The panel discussed the various developments in Islamic finance treasury operations, as well as funds management in the UK and Malaysia. At present, there are around 600 Shari’ah-compliant funds domiciled in 31 countries managing $35 billion of assets. After Saudi Arabia, Malaysia is the largest market for Shari’ah-compliant funds with
34% of the market share in terms of number of funds and 26% in terms of the assets under management (AUMs). The panel also discussed whether levelling the playing field between Islamic financial institutions and their conventional counterparts in Muslim-minority countries is enough to facilitate further growth of the industry or whether there is a need for active government support in terms of a budget for education and awareness and removing some of the misunderstandings. The panel also deliberated the issue of the creation of a Shari’ah-compliant benchmark, critical for establishing the cost of funds in a framework that is Shari’ah compliant. At present, the London Interbank Offered Rate (LIBOR) is usually used as a benchmark in Islamic finance cross-border transactions. It was suggested that delinking from LIBOR would create greater confidence among customers and other stakeholders within the Islamic finance industry, which would assist in its further growth and development. A Critical Review of Recent Disputes The second session, ‘A Critical Review of the Recent Disputes in the Islamic Finance Industry’ was moderated by Richard de Belder, partner and head of Islamic finance at SNR Denton – an international law firm. The panel pointed out that the key characteristics of an effective legal and regulatory framework for the Islamic finance industry are an enabling environment that accommodates and facilitates the development of he industry; a clear and efficient system that preserves the enforceability of Islamic financial contracts and a credible and reliable forum for settlement of legal disputes arising from Islamic finance transactions. The panel acknowledged that there are several challenges faced by the Islamic finance industry including lack of standardised documentation, different school of thoughts and therefore different interpretations of various Shari’ah compliance-related matters and a lack of legal expertise in both Islamic and conventional finance. In respect of the legal challenges, there are various initiatives underway to develop the people resources in various jurisdictions active in Islamic finance sector such as Malaysia, with measures being taken to ensure that players within the industry including judges and lawyers are trained in Islamic finance. International standard setting bodies such as Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI) and Islamic Financial Services Board (IFSB) are working on standardisation issues and already have made some progress. In recent years a number of Islamic finance cases have been brought to court for settlement in different jurisdictions including and beyond Muslim majority countries. The panel examined the recent Islamic finance transactions disputes such as the one between Investment Dar and Blom Bank and also looked at the key legal issues in such disputes, particularly transaction structuring and documentation. Cross-Border Transactions The third session, ‘Contemporary Shari’ah Discourse in Cross-Border Transactions’ was moderated by Dr Asyraf Wajdi Dusuki, head of research affairs at ISRA. The panel looked at some of the practical issues in striking a balance between Shari’ah compliance and national legal and regulatory requirements. For example, Shari’ah scholars sometimes allow certain transactions, questionable under Shari’ah law, on the basis of necessity and public good, but it was pointed out that these should not become the norm. The panel also pointed out, using sovereign sukuk as an example, that sukuk holders may not have access to the underlying asset in the case of sukuk default for reasons of national security among others.
The panel also discussed the way Shari’ah compliance frameworks have evolved in various jurisdictions over time. Dispute Resolution The final session, ‘Alternative Dispute Resolution Mechanisms in Islamic Finance: Do We Need to Have an International Convention to Govern Cross-Border Islamic Finance Transactions?’ was moderated by Dr Mohamad Akram Laldin. Alternative Dispute Resolution (ADR) may be defined as a range of procedures that serve as alternatives to litigation through the courts for the resolution of disputes, generally involving the intersession and assistance of a neutral and impartial third party. The word alternative has generally been understood to refer to the alternatives to litigation. There are, however, various forms of ADR mechanisms, which include arbitration and mediation. Arbitration (tahkim) is the private, judicial determination of a dispute, by an independent third party. Mediation (sulh) is a process in which an impartial third party known as a mediator assists parties involved in a dispute to resolve their differences in an amicable manner. Arbitration (“tahkim”) and mediation (“sulh”) are recognised under the Shari’ah. The advantages of both arbitration and mediation are that the parties have a full say over the final result. They can participate in the process; decide on the outcome and work together, not against each other; can maintain, restore or rebuild their relationship and enjoy substantial savings in terms of money and time. ADR approaches are more efficient, private and more flexible for both parties as compared to litigation. The panel highlighted that the aim of Shari’ahcompliant arbitration is to have disputes resolved in accordance with Shari’ah principles. The outcome, however, still needs to be enforceable in the secular courts and therefore the arbitration process should be carried out in a way that will not result in the secular courts refusing to enforce any agreement reached. Arbitrators or other persons involved in arbitration procedures also need to have some familiarity with financial, commercial and legal issues and not just the Shari’ah. The panel looked at the various alternative dispute resolution mechanisms that are being practiced in the market; how these have evolved over time and the enforceability issues. They also deliberated the use of these dispute resolution arrangements as they apply to Islamic finance transactions. Illustrastion By Timur Abimanyu, SH.MH Principles of sharia is Islamic financial contracts, which all Islamic financial transactions have legal clauses governing. As the Shari'a is a non-national system of law, and subject to various interpretations, in order to create certainty about the rights and obligations of contracting parties, English law is usually chosen as the laws governing the cross-border Islamic financial transactions. There are a number of cases heard in court commercial litigation involving commercial contracts of Islamic finance, where issues of law governing the contract are under supervision. From the argument default party in this transaction, it became clear that there is a space through tactics shopping opinion among scholars and unfortunately a lot of potential for the invalidity arguments sharia to be used by the borrower default to avoid their responsibilities under a commercial agreement, the dispute recently and in analysis and implied from the court's decision and discussed the structure of developing shari'a compliance and alternative dispute settlement mechanisms, and whether there is a need for an international convention to regulate cross-border Islamic financial transactions.
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