SUKUK: SHARIA’H AND REGULATORY IMPLICATIONS

Abstract

In a global economy, not all economic units are following the same socio-economic regime, but a predominant majority is pursuing a capitalistic economic system, propagating a free market economy, with checks and balances and a good number of welfare state economies. The socio-economic system of Islam too espouses a market economy but with a system of rights and responsibilities from the smallest or weakest element to the largest and strongest socio-economic unit/s. The regulatory system of Islam, called the Sharia’h defines the nature and sphere of activities of this socio-economic system. Innovations in Finance create new products in an effort to provide better solutions to the market. Some time passes before the products’ total, real impact is felt and understood by the stakeholders and the economy. As innovators do attempt to beat or sideline the given regulations and make room for their own interests to be fulfilled, it becomes necessary to evaluate products for their true worth and meaning. This is made possible through application of regulatory clauses as well as evaluation of regulations, as new products often attempt to beat regulations. This is why it becomes all the more important to study together products and their regulatory issues, particularly discussing the products’ impact on all stakeholders and the socio-economic system, as in this research. This research work analyses sukuk structures as products of Islamic Finance and tests whether they are Sharia’h compatible products or just another name for a type of conventional bonds. It tests the sukuk attributes in comparison to the Sharia’h objectives of Islamic Finance, as given in the AAOIFI Sharia’ Standards. It further tests sukuk in terms of conventional structured finance. It assesses whether sukuk transfer risk from the originator to sukuk holders or not, applying the relevant securitisation clauses of the International regulations for Financial Institutions, given by Basel II regulatory report. The results of the analyses shall clarify the position of the sukuk according to the Sharia’ Standards as well as the Basel II regulations. It throws light on the possible application of sukuk by Islamic finance Institutions particularly due to the securitisation and fund generating attributes of the sukuk. The study provides important insight into the sukuk structures through the above-mentioned synthesis. While some aspects of the sukuk comply with the AAOIFI Sharia’ standards, there are others that do not. While it was expected of the sukuk as Islamic finance products, to transfer risk from originators to the sukuk holders, this was proved incorrect. This research has implications for further product development, design and usage as well as development of Sharia’ Standards and International regulations within the prerequisites of the Sharia’h requirements. Key words: Sukuk, Islamic banking, Islamic finance, regulations, risk transfer, securitization, AAOIFI Sharia’ Standards, Basel II