Principles of Islamic Finance - Hussein Elasrag - ebook
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It may be asked why non-Muslims would agree to use Islamic finance structures. The principal answer is that Islamic finance provides an opportunity to tap into the significant funds of Islamic investors seeking Shari’ah compliant investments. In addition, Islamic finance can be combined with conventional funding sources and export credit agency (ECA) support. This book tries to note the main Principal of Islamic finance. In addition to discuss the Improvement can be made in several areas to promote and enhance the providing Islamic financial services.

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Principals

Of

ISLAMIC FINANCE

––––––––

Hussein Elasrag

Table of Contents

1. Introduction:

II.Fundamentals of the Islamic finance

A.Shari'ah law defined

B.Sources of Shari'ah law

1.Qur'an

2.Sunnah

3.Hadith

4.Qiyas

5.Ijma

6.Ijtihad

C.Issues relating to interpretation and application of Shari'ah law

1.Key Shari'ah principles and prohibitions relevant to finance

The basic points of difference between money and commodity:-

2.Regulation of Islamic Finance

Difference between Istisna and Salam:(Usmani & Zubairi, 2002, pp. 131-132)

Difference Between Istisna and Ijarah :(Usmani & Zubairi, 2002, pp. 132-133)

D.Islamic bonds (Sukuk) :

E.ISLAMIC BANKING

What is Islamic banking?

E.ISLAMIC CAPITAL MARKETS

III.Leading organizations of Islamic finance

1.Shari'ah Boards

2.AAOIFI

3.IFSB

4.IIRA

5.IIFM

6.IILM

IV.Islamic Finance in the United States

V.Steps Forward—Some Recommendations

A.Financial Engineering:

B.Risk Management and Diversification:

C.Non-Bank Financial Services:

D.Development of Capital Markets:

E.Corporate social responsibility in Islam

F.Corporate governance in Islamic Finance

1.Shari'ah Governance in Islamic Finance

2.Shari'ah Governance Model from Regulatory Perspective

A.The Board of Directors

B.Senior management

C.Regulatory and Internal Frameworks

D.Attributes of the Shari'ah Board on Independence

VI: Unlocking the Potential of Islamic Finance for Small business

1-Introduction

2-Understanding SMEs

A-SMEs Definitions

B-SMEs and Access to Finance

3-Islamic Financing techniques for SMEs

4-Obstacles Faced by Banks in SME Financing

5-Islamic Financing Options for SMEs

6-Unlock the full potential of Islamic finance for SMEs

A.Creating an Enabling Environment

B.Developing the industry and markets

C.Ensuring financial stability

D.Strategic operational adjustments to target SMEs

Future directions

GLOSSARY

References

1. Introduction:

Islamic finance is the only example of a financial system directly based on the ethical precepts of a major religion, providing not only investment guidelines but also a set of unique investment and financing products.” Islamic finance is based on Shari’ah, the Islamic law that provides guidelines for multiple aspects of Muslim life, including religion, politics, economics, banking, business and aspects of the legal system What Shari'ah compliant financing (SCF) seeks to do is to shape financial practices and accompanying legal instruments that conform to Islamic law. Major financial principles of Shari'ah include a ban on interest, a ban on uncertainty, adherence to risk-sharing and profit-sharing, promotion of ethical investments that enhance society and do not violate practices banned in the Qur’an and tangible asset-backing.(Elasrag, 9. April 2011)

Money, according to Islamic teachings is a measure of value, not a commodity. Debt is a relationship in which risk and responsibility are shared by all parties to a contract. Money must be put to practical use in creating real value for the participants of the transaction. It must be used to create, and not be a commodity in on and of itself. It because of this that the perception of hoarding capital, and the earning of a passive return on capital keyed to the passage of time, -i.e. interest – is prohibited. In short, money must not be made from money.

The establishment of modern Islamic financial institutions started three decades ago. Currently, there are at least 70 countries that have some form of Islamic financial services; almost all major multinational banks are offering these services. The underlying financial principles in Islamic finance have remained unchanged historically since their development over 1,400 years ago. Financial products must be certified as Sharia compliant by an expert in Islamic law. Certification requires that the transaction adheres to a  number of key principles that include:(Chapra, 2011)

●  Backing by a tangible asset, usufruct or services, so as to avoid ‘speculation’ (gharar). Prohibition of interest payments (riba).

● Risk to be shared amongst participants.

●  Limitations on sale of financial assets and their use as collateral.

● Prohibition of finance for activities deemed incompatible with sharia law (haram), such as alcohol, conventional financial services, gambling and tobacco.

Modern Islamic finance emerged in the mid-1970s with the founding of the first large Islamic banks. Development initially occurred through marketing of a steadily expanding supply of Sharia compliant financial instruments.

This supply-driven model contributed to relatively slow growth until the mid-1990s, since when demand has increasingly driven the development of Islamic financial instruments.  Rising awareness and demand for Islamic products, along with supportive government policies and growing sophistication of financial institutions, have together raised the rate of growth.

Two developments have been critical to the expansion of Islamic financial markets. In 1998, the so-called “Dow Jones Islamic Indexes fatwa” played a transformative role because it opened the door to a limited degree of “permissible impurity” in financial transactions and institutionalized a notion of cleansing and purification whereby small amounts of impermissible interest income could be cleansed or purified by donation to charity. In turn, this led to a series of equity investment tests that could be used to evaluate potential investments for Shari'ah compliance. A second critical innovation was the introduction of sukuk – a Shari'ah compliant substitute for bonds – where capital protection is achieved not as a loan but as a binding agreement by the issuer to repurchase certain assets over a period of time.

Sukuk has now become one of the backbones of Islamic capital markets and has enabled the rapid growth of Islamic financial transactions.

While the Islamic finance industry represents a fraction of the global finance market, it has grown at double-digit rates in recent years. By some  estimates, total  assets held  globally under Islamic finance reached $1 trillion in 2010. Islamic banks have appeared to be more resilient than conventional banks to the immediate effects of the international financial crisis and global economic downturn. Some analysts have attributed this to Islamic banks’ avoidance of speculative activities. However, the Islamic finance industry has not been completely immune to the general decline in demand  and  investor  uncertainty.

TheCityUK estimates that the global market for Islamic financial services ,as  measured  by  Sharia  compliant  assets,  reached $1,460bn at the end of 2012, up a fifth on the previous year. This means that global assets of Islamic finance have doubled since the start of the economic slowdown. The industry is set to grow significantly in the years ahead. At the current rate of growth of around 20% per year, the market could top $2 trillion in assets by the end of 2014.(UK Islamic finance secretariat UKIFS, 2013)

Assets that can be allocated to individual countries from The Banker’s survey reveals that the leading countries for Sharia compliant assets are Iran which accounts for around 36% of the global market, Malaysia (17%) and Saudi Arabia (14%). These are followed by other Gulf states including UAE, Kuwait, Bahrain and Qatar, and then  Turkey.The  UK, in ninth place, is the leading Western country with $19bn of reported assets.There are over 700 institutions registered globally as sharia-compliant organisations in financial services. Of these, around 500 are fully compliant, and the  remainder  operate  sharia-compliant products within a conventional institution. Countries with most of the 430 firms reporting to The Banker’s survey include Bahrain and Indonesia with 74 and 71 firms respectively. Malaysia, Iran, Kuwait and Saudi Arabia were in a group of countries with more than 50 firms.(UK Islamic finance secretariat UKIFS, 2013)

The multiple reasons for the growth of the Islamic financial sector in recent years:(Alasrag, 2010)

(1) The flow of funds into Muslim oil-producing states;

(2) Growing political and social desire in the Muslim world for financial alternatives to banking and investment institutions that have been historically dominated by the West;

(3) The spreading credit crisis in global financial markets and the need to access new sources of investment capital;

(4) The growth of sovereign wealth funds and the desire to have Shari'ah compliant instruments through which to invest them; and,

(5) The rapidly accelerating number of cross-border multi- jurisdictional financial transactions that are possible and required in a globalized world economy Assets held by Muslim investors worldwide now exceed $1.6 trillion, and that amount is expected to grow to $2.7 trillion by 2010.

Shari’ahcompliant finance has become an accepted and vibrant element in international financial transactions. It offers a fresh  opportunity  to emphasize  the  moral  and  ethical aspects of business and finance that reaches beyond the Arab and Islamic worlds to prompt a reexamination of the core values  underlying  all  global  financial  transactions  – making available the financial resources needed to develop the human  capital  that  will  sustain  economic  and  social progress. The main principles of Islamic finance include:

(1)The prohibition of taking or receiving interest;

(2)  Capital must have a social and ethical purpose beyond pure, unfettered return;

(3)  Investments in businesses dealing with alcohol, gambling, drugs or anything else that the Shari'ah considers unlawful are deemed undesirable and prohibited;

(4)A prohibition on transactions involving maysir (speculation or gambling); and

(5)A prohibition on gharar, or uncertainty about the subject- matter and terms of contracts – this includes a prohibition on selling something that one does not own.

Because of the restriction on interest-earning investments, Islamic banks must obtain their earnings through profit-sharing investments or fee-based returns. When loans are given for business purposes, the lender, if he wants to make a legitimate gain under the Shari’ah, should take part in the risk. If a lender does not take part in the risk, his receipt of any gain over the amount loaned is classed as interest. Islamic financial institutions also have the flexibility to engage in leasing transactions, including leasing transactions with purchase options.

It may be asked why non-Muslims would agree to use Islamic finance structures. The principal answer is that Islamic finance provides an opportunity to tap into the significant funds of Islamic investors seeking Shari'ah compliant investments. In addition, Islamic finance can be  combined  with  conventional  funding sources and export credit agency (ECA) support.

As the Islamic finance industry develops further, there is a growing need for standardization and professionalism across the industry. Coupled with this is the importance of adopting robust corporate governance systems of internationally recognized standards incorporating transparent, fair and ethical working practices. Islamic financial institutions are well-placed in this context, since at the heart of Islamic law is a vision of social development which requires all individuals and businesses to conduct themselves ethically and in a socially responsible manner.

This Book tries to note the main Principal of Islamic finance.  In addition to discuss the Improvement can be made in several areas to promote and enhance the providing Islamic financial services.

II.  Fundamentals of the Islamic finance

One of the most important objectives of Islam is to realize greater justice in human society. According to the Qur’an all the messengers of God were sent to promote justice and any society where there is no justice will ultimately head towards decline and  destruction. One  of the  essential requisites for ensuring justice is a set of rules or moral values, which everyone accepts and complies with faithfully. The financial system may be able to promote justice if, in addition to being strong and stable, it satisfies at least two conditions. One of these is that the financier should also share in the risk so as not to shift the entire burden of losses to the entrepreneur or the borrower, and the other is that an equitable share of the society’s financial resources becomes available to even the poor on affordable terms in keeping with their ability to repay so as to enable them to realize their dream of owning their own homes, pursuing higher education and vocational training, and establishing their own micro enterprises.

To fulfill the first condition of justice, Islam requires both the financier and the entrepreneur to equitably share the profit as well as the loss. For this purpose, one of the basic principles of Islamic finance is: “No risk, no gain.” This should help introduce greater discipline into the financial system by motivating financial institutions to assess the risks more carefully and to effectively monitor the use of funds by borrowers. The double assessment of risks by both the financier and the entrepreneur should help inject greater discipline into the system, and go a long way in not only increasing efficiency in the use of resources but also reducing excessive lending.(Chapra, 2011)

Islamic finance is based on Shari'ah, an Arabic term that is often translated into “Islamic law”. Shari'ah provides guidelines for aspects of Muslim life, including religion, politics, economics, banking, business, and law. Shari'ah-compliant financing (SCF) constitutes financial practices that conform to Islamic law.(Ilias, 2010)

Islamic finance was practiced predominantly in the Muslim world throughout the Middle Ages, fostering trade and business activities with the development of credit. In Spain and the Mediterranean and Baltic states, Islamic merchants became indispensable middlemen for trading activities. In fact, many concepts, techniques, and instruments of Islamic finance were later adopted by European financiers and businessmen.

In contrast, the term “Islamic financial system” is relatively new, appearing only in the mid-1980s. In fact, all the earlier references to commercial or mercantile activities conforming to Islamic principles were made under the umbrella of either “interest free” or “Islamic” banking. However, describing the Islamic financial system simply as “interest-free” does not provide a true picture of the system as a whole. Undoubtedly, prohibiting the receipt and payment of interest is the nucleus of the system, but it is supported by other principles of Islamic doctrine advocating risk sharing, individuals’ rights and duties, property rights, and the sanctity of contracts.

Similarly, the Islamic financial system is not limited to banking but covers capital formation, capital markets, and all types of financial intermediation. Interpreting the system as “interest free” tends to create confusion. The philosophical foundation of an Islamic financial system goes beyond the interaction of factors of production and economic behavior. Whereas the conventional financial system focuses primarily on the economic and financial aspects of transactions, the Islamic system places equal emphasis on the ethical, moral, social, and religious dimensions, to enhance equality and fairness for the good of society as a whole. The system can be fully appreciated only in the context of Islam’s teachings on the work ethic, wealth distribution, social and economic justice, and the role of the state.

The Islamic financial system is founded on the absolute prohibition of the payment or receipt of any predetermined, guaranteed rate of return. This closes the door to the concept of interest and precludes the use of debt-based instruments. The system encourages risk-sharing, promotes entrepreneurship, discourages speculative behavior, and emphasizes the sanctity of contracts. Modern Islamic finance has existed internationally since the 1970s. Currently, Islamic finance represents a small but growing segment of the global finance industry.

In recent years, SCF has expanded to other parts of the world. Islamic finance is growing in Europe and North America, areas in which Muslims are in the minority. In August 2004, the United Kingdom’s Financial Services Authority (FSA) approved a banking license for the Islamic Bank of Britain (IBB), the country’s first Islamic bank. The IBB would serve the consumer market with Shari'ah-compliant products. In March 2006, the FSA licensed the European Islamic Investment Bank as the United Kingdom’s first independent bank for Shari'ah-compliant investments. In 1999, the Dow Jones presented its first Islamic market index, which follows Shari'ah-compliant stocks internationally. The Dow Jones maintains more than 70 indices in its Islamic series and is advised by an independent Shari'ah Supervisory Board counsel.[1]

In 2006, S&P Dow Jones Indices introduced the S&P Shari'ah Indices. Recognizing the urgent need for indices, which are a real gauge of the global equity markets and well-established standards, S&P Dow Jones Indices initially applied Shari'ah screens to three headline indices – the S&P 500, the S&P Europe 350 and the S&P Japan 500. The results are the S&P 500 Shari'ah, the S&P Europe 350 Shari'ah and the S&P Japan 500 Shari'ah indices. In 2007, S&P Dow Jones Indices followed with the S&P GCC Shari'ah and the S&P Pan Asia Shari'ah Indices, to cater to the demand for a benchmark Shari'ah product for those regions. Currently, S&P Dow Jones Indices boasts the most comprehensive series of Shari'ah indices in the industry. This was accomplished in 2008 with the completion of the review of the S&P Global BMI Index, which consists of over 10,000 companies worldwide, for Shari'ah compliance. The result is the S&P Global BMI Shari'ah index, comprised of nearly 4,000 constituents, along with 10 sector and 45 country and regional sub-indices. These are gauges of major markets, sectors, and regions; and by screening out stocks that are not Shari'ah compliant, they become ideal investment vehicles for observant Muslims.(S&P Dow Jones Indices, March 2014, p. 3)

A.  Shari'ah law defined

––––––––

Shari'ah(or Islamic) law is meant to regulate all aspects of a Muslim's way of life. It is broadly divided into two sets of rules: one relates to the obligatory worship of God (ibadah) and the other relates to daily life outside the context of obligatory worship (muamalat), including commercial and financial  dealings. Shari'ah is not a codified body of law. It consists of general rules and principles derived from the Qur'an (the Muslim holy book), the practices (sunnah) and sayings (ahadith) of the Prophet Mohammed (as discussed in further detail below). These general principles are capable of interpretation and development to address new issues or circumstances that arise from time to time. Indeed, the Shari'ah has been supplemented by extensive Islamic jurisprudence (fiqh) developed over centuries by different schools of thought (the madhaa'hib). The key point to note is that, while all the schools of thought agree on the fundamental  Shari'ah principles enshrined in the Qur'an, sunnah and hadith, they sometimes hold differing views on their interpretation and application.

B.  Sources of Shari'ah law

––––––––

Shari'ahl aw is derived from a number of primary and secondary sources.(Allen&OveryLLP, 2009)

1.  Qur'an

The Qur'an is a primary source of law and is believed by Muslims to contain the word of God as revealed to the Prophet Mohammed. Evidence found in other sources of Shari'ah law is subject to the Qur'an.

2.  Sunnah

Sunnah literally means "well known path". The Sunnah is a primary source of law and comprises traditional accounts of what the Prophet Mohammed said or did during his life

Which have legal content. Sunnah also comprises the sayings of others tacitly approved by the Prophet's silence.

3.  Hadith

A further primary source of law is the narrative record of sayings and actions of the Prophet Mohammed known as hadith (plural ahadith). The extent to which sunnah is derived or differentiated from ahadith depends on the context and school of thought being considered.

4.  Qiyas

––––––––

Qiyas represents the process of reasoning whereby the principles found in the Qur'an and sunnah are extended to new cases by analogy.

5.  Ijma

Ijma represents the consensus of the Islamic community (whether at a local or global academic level) on a particular issue.

6.  Ijtihad

Ijtihad is the interpretation and the opinion of Islamic jurists on a particular issue. Qiyas,ijma and ijtihad are all secondary sources of Shari'ah law.

C.  Issues relating to interpretation and application of Shari'ah law

Since Shari'ah law is not a single codified body of law and is open to interpretation, the opinions of Shari'ah scholars may differ on the same question of Shari'ah law depending on the school of thought to which particular scholars belong. In addition, scholars' views on questions of Shari'ah law may change over time. This can lead to uncertainty and inconsistency of interpretation and application of Shari'ah law across the Islamic world.(Allen&OveryLLP, 2009; Ayub, 2009)

1.  Key Shari'ah principles and prohibitions relevant to finance

There are a number of key Shari'ah principles and prohibitions relevant to finance and commercial transactions which distinguish Islamic finance from the conventional forms. For completeness, it should be mentioned that there are two main branches within Islam: sunnism and shiaism. The majority of Muslims are sunni and the following is limited to the discussion of the general Shari'ah principles relating to Islamic finance within sunni jurisprudence. The key Shari'ah principles which underpin Islamic finance, and have led to the creation of a separate finance industry, are as follows:(Allen&OveryLLP, 2009)

a)  Prohibition on usury and interest (riba)

Prohibition of interest. Prohibition of riba, a term literally meaning “an excess” and interpreted as “any unjustifiable increase of capital whether in loans or sales” is the central tenet of the system. More precisely, any positive, fixed, predetermined rate tied to the maturity and the amount of principal (i.e., guaranteed regardless of the performance of the investment) is considered riba and is prohibited. The general consensus among Islamic scholars is that riba covers not only Usury but also the charging of “interest” as widely practiced. This prohibition is based on arguments of social justice, equality, and property rights. Islam encourages the earning of profits but forbids the charging of interest because profits, determined ex post, symbolize successful entrepreneurship and creation of additional wealth whereas interest, determined ex ante, is a cost that is accrued irrespective of the outcome of business operations and may not create wealth if there are business losses. Social justice demands that borrowers and lenders share rewards as well as losses in an equitable fashion and that the process of wealth accumulation and distribution in the economy be fair and representative of true productivity.

Under the Shari'ah, it is not permissible to charge, pay or receive interest. The Shari'ah does not recognize the time value of money and it is therefore not permissible to make money by lending it. Money must be used to create real economic value and it is only permissible to earn a return from investing money in permissible commercial activities which involve the financier or investor taking some commercial risk. This prohibition is the main driving force behind the development of the modern Islamic finance industry. Riba can take one of two forms: riba al- naseeyah and riba al-fadl.(Dewar & Hussain, 2011, p. 274)

1- Riba al-naseeyah is the amount of excess received by a lender in addition to the capital amount lent. This type of riba is comparable to the traditional concept of interest in conventional lending

activities.

2- The second type, riba al-fadl, is excess compensation without any form of consideration in return.

In modern finance, riba al-fadl could be applicable to several exchange of commodities contracts.

The idea is that when compensation is paid, it should be justified or be set against a specific activity and the return should also be associated with a specific risk. Therefore when parties exchange commodities of similar value and one party pays excessive compensation to the other party, this is

Considered riba.

b)  Prohibition on realising a gain from speculation (mayseer)

It is not permissible to earn a profit from speculation. Gambling is therefore not permitted under Shari'ah. Any contracts or arrangements which involve speculation are also not permitted. That said, it is accepted under the Shari'ah that there is an element of speculation in most commercial arrangements and, unlike the absolute prohibition of interest, it is a question of the degree of speculation involved and whether the intention behind the transaction is to realise a gain from some productive effort or purely speculation.

The distinction between prohibited speculation and legitimate commercial speculation is not always clear in practice and there are examples where it can be difficult to distinguish between the two. For example, it is generally accepted that it is permissible to make an equity investment in a company  Engaging in a business activity that is permissible under the Shari'ah