The global financial system is a complex system of products, markets, institutions, transactions, legal systems, rules and regulations. A major anchor of the financial system is the financial intermediation by which money flows from those who have a surplus of it to those who have a shortage in an efficient manner and with benefits for both parties, as well as the intermediaries in the middle. The financial intermediaries include banks, as well as credit unions, insurance companies, investment companies, finance companies, brokers, stock exchanges, mutual funds, pension funds, etc. Other participants directly involved with the financial system are governments and their treasury, central banks and business corporations. The main markets involved in these movements of funds are the money market and the capital market. The key difference between these two markets is the period of the transaction. Money markets are for the short term – up to a year. Capital markets are for the longer term – more than a year. Parties with a fund shortage have two main options. Firstly, they can go directly to those with surplus funds and interested to invest these funds in the market, either the money market or the capital market. Secondly, they can borrow funds indirectly from financial intermediaries like banks.
The surplus fund owners in the conventional financial markets, therefore, have the option of investing mainly in the money and capital markets. Additionally, there are the commodity, foreign exchange and derivative markets. These markets all are further subdivided into the primary market where new securities are issued and the secondary market where the securities are traded after initial issue. Briefly, these markets can be described as follows.
The financial markets serve a variety of functions for various players in the markets. Two main functions are providing savings and borrowing facilities for those with a surplus or deficit of funds. Another function is providing an efficient, effective, as well as trustworthy and fast payment mechanism for goods and services. The financial markets are a means for individuals and institutions to store wealth with the expectation of income and growth in value. Sometimes the savers or investors may own financial instruments but temporarily need ready cash to meet certain needs, and the financial markets can provide this liquidity also. The financial systems assist in risk reduction and protection for a variety of risks faced by individuals and institutions. Finally, governments use the financial markets to execute various policies to stabilize the economy and keep inflation under control.
The Islamic investment markets also consist of the money and capital markets, as well as the foreign exchange and commodities markets. The markets, intermediaries and functions of the Islamic investment markets are quite like those in the conventional case, although the instruments in these markets and the transactions taking place are required to meet Shariah compliance in addition to meeting the financial needs of various participants in the markets.
To be Shariah compliant the Islamic financial system and its products and procedures need to be designed to ensure they are devoid of Islamic prohibitions. Islam prohibits all forms of interest, whether simple or compound, fixed or floating, nominal or excessive; they are all Haram or prohibited and treated in the same manner under Shariah law. As such, all forms of investment under the Shariah compliance rule need to be free of interest or Riba, and these products should be able to make a profit or loss instead of the guaranteed interest income. All forms of speculation, including uncertainty or Gharar and gambling or Maysir, are also not allowed in Islam. Commonly used conventional investment products like bonds, bills, certificates of deposit, preferred stocks, warrants, derivatives, repos or buy-backs are not allowed in Islamic investment.
Islamic investments, therefore, are required to avoid excessive risk, uncertainty and speculation. As such, speculative conventional contracts like short selling and derivatives are prohibited. Short selling involves selling an instrument before it has been purchased, with the expectation that prices will go down. All investment contracts need to meet the Shariah requirements of a clear and unambiguous contract. Moreover, Shariah-compliant investments are also required to be socially responsible and ethical. Specifically, Shariah prohibits all forms of gambling, alcohol, pork, pornography and other unsocial or immoral activities, and encourages the fulfilment of various social responsibilities like Zakat, which is compulsory charity, Sadaqah, which is voluntary charity, Waqf or charitable endowment and Islamic cooperative insurance called Takaful.
Money markets are extremely important, whether in the conventional or the Islamic financial system, for monetary stability and economic development. Central banks manage the liquidity issues of financial institutions like banks through reserves and short-term borrowing or investments in the money market. Islam prohibits the treatment of money as a commodity; it can only be considered as a medium of exchange. For banks to deal with their liquidity challenges, an efficient interbank market is required with very short maturities varying between overnight and a week. Developing a vibrant Shariah-compliant money market that enables market players to perform similar functions to those of conventional markets, without interest-based products or any form of Gharar or Maysir, is a major challenge of the modern Islamic finance industry. Islamic finance encourages developing financial instruments that are based on real assets such as certificates of Murabaha, Mudaraba and Wakala, as well as Ijara Sukuks. Islamic money markets extensively utilize the process of securitization of assets in a portfolio, and its risks and returns are assigned to the investors as owners of the securities, pro-rata to their ownership. These securities are traded both on exchanges and OTC. For the Islamic money market to be successful it needs the support of the government, the central bank and other regulatory bodies to ensure that it meets the needs of the participants and that the securities are Shariah compliant. An active money market indicates to the central banks the volume of open market operations that are required to ensure liquidity and monetary stability.
Thus, Islamic money market instruments are Shariah compliant, structured on assets, including both debt and equity, and require the approval of the financial regulators as well as of the SSB. On the other hand, conventional money market instruments are structured on debt only and require approval of the financial regulators only. Islamic treasury products are mostly in the form of deposit and investment instruments, and the instruments may have an underlying contract of Murabaha, Mudaraba or Wakala. Instruments currently used in the Islamic money market include Mudaraba-based accounts, negotiable Islamic debt certificates, Islamic treasury bills, Islamic accepted bills, commodity Murabaha, Islamic commercial paper, Salam and Ijara-based Sukuks.
Islamic capital markets include equity markets and asset-linked securities market, especially Sukuks. The Islamic capital market instruments are also required to be Shariah compliant and free of Riba, Gharar and Maysir. Major participants of this market are investment banks, brokers, fund managers and asset management institutions. The main international Islamic regulators involved in developing, regulating and promoting the Islamic capital markets are the IIFM, the IFSB and the AAOIFI.
Shariah-Compliant Stocks A share is a unit of ownership that represents an equal proportion of a company's capital. It entitles the shareholders to an equal claim on the company's profit or growth, either through dividend or capital gains, as well as equal obligation in the case of losses. Two major types of shares are ordinary shares or common stock and preference shares. The main difference between the two types is with respect to the right to vote, which only ordinary shareholders have and the fixed dividend, which only preference shareholders have.
Equity or shares in a company is not debt and hence does not have the complication of Riba. Yet the shares of all companies are not acceptable as Shariah compliant. It is very difficult to find companies that are completely free from Shariah-non-compliant financial transactions. To deal with this significant investment challenge, the Shariah scholars and the international Islamic regulatory and standard setting bodies have developed more flexible procedures to be able to identify some companies that can be considered within reasonable Shariah compliance. This process is called the Shariah screening process for stock selection and involves a set of guidelines that are provided to select such companies and identify Shariah-compliant stocks. The process has two stages.
Stage 1: Industry screening or business activity screening. This stage weeds out in general the companies that are in a Shariah-non-compliant industry or that are involved in activities that are against Shariah. The general guidelines for this screening are listed below.
Stage 2: Financial screening. This stage of the process evaluates the Shariah-non-compliant financial activities of the company. There are very few companies in the global markets that are fully Shariah compliant. The majority of Islamic scholars have identified a certain level of non-compliant financial activity as acceptable, provided the income earned from these companies is purified by donating the non-compliant proportion of income to charity. The guidelines for financial screening according to the AAOIFI standards are listed below.
With global markets changing and with mergers and acquisitions, Shariah-compliant stocks may become non-compliant, for example when a conglomerate with Shariah-compliant businesses acquires a subsidiary that deals with non-compliant business or which fails on the financial screening. Besides merger and acquisition, a company previously approved after industry and financial screening may change its area of business or its financial behaviour, making it unacceptable in the Shariah screening. In such cases, the following are recommended.
Some scholars do not allow investment in stocks that involve any kind of conventional debt, while others allow such stocks with the condition that the income generated needs to be cleansed or purified in proportion to the Shariah-non-compliant activities. As such, any income that is interest or from any other non-compliant source is donated to charity. The view of Muslim jurists related to cleansing of capital gains is even more controversial. Some scholars feel that capital gains earning also needs to be purified by donating the proportion relevant to non-Shariah-compliant activities, while some scholars opine that no purification of capital gains is required since the company belongs to a Halal industry. Some scholars also allow the payment of Zakat as a measure of purifying the income.
Initially, Islamic equity funds were benchmarked against conventional indices like the Morgan Stanley Capital Index (MSCI). Over time, Islamic stock market indices were developed to provide benchmarks for Shariah-compliant investment in shares. Prominent Islamic indices include the Dow Jones Islamic Market Index, FTSC Global Islamic Index, S&P Global Investable Shariah Index, Kuala Lumpur Composite Index, Pakistan Meezan Islamic Fund, Global GCC Islamic Index, Jakarta Islamic Index, etc.
An investment fund is a specialized firm into which many investors, individuals or corporations contribute a pool of funds to be managed professionally. The employees in the investment funds are professionals; they have a fiduciary responsibility towards the investors and their relationship is based on trust. An Islamic investment fund is a joint pool into which investors contribute their surplus money to be invested by professionals in accordance with Islamic Shariah guidance. The fund managers of an Islamic fund are responsible for ensuring Shariah compliance of the instruments and processes used to build and manage the fund, avoiding non-Halal industries like alcohol, pork, gambling, uncensored media and entertainment, pornography and other things Shariah clearly forbids.
According to the AAOIFI, ‘Funds are investment vehicles, which are finally independent of the institutions that established them. Funds take the form of equal participating shares/units, which represent the shareholders/unitholders’ share of the asset and entitlement to profit or losses. The Funds are managed based on either Mudaraba or agency contract'. The AAOIFI further elaborates that Shariah-compliant Islamic investment funds are a form of collective investment, with the rights and duties of the participants clearly defined and restricted by the common interest of the participants, besides the Shariah objective.
Islamic investment funds started to appear from the late 1980s and the 1990s. Compared with the well-established investment funds in the conventional sector, these funds are still at a very early stage of development, and depend significantly on the experience and expertise of conventional fund managers. The development of the sector got a major boost after it received the ruling by the Islamic Fiqh Academy of the OIC providing standardization and guidance for the funds. As the Islamic investment sector is growing, demand for Shariah-compliant asset management and Islamic funds is also growing. According to Thomson Reuters (2017), assets invested in Islamic funds have reached USD60 billion and are forecast to reach at least USD77 billion by 2019, while the latent demand for Islamic funds is projected to grow to USD185 billion during the same period.
An investment portfolio is developed by investing in a variety of assets like shares, bonds, other securities, real estate, etc. as per the risk and return appetite of the participants of the fund. For the investment portfolio of an Islamic investment fund, the assets selected must be Shariah compliant, from Halal industries and need to be devoid of interest, and speculative activities involving Gharar or Maysir. The investments should not be unethical or unsocial. As such, an Islamic investment portfolio cannot use instruments like preferred stocks, warrants, treasury bonds and bills, certificates of deposit or derivatives. Additionally, an Islamic investment fund is not permitted to trade on margin or get involved in sale and repurchase agreements, that is repos and buy-backs. To avoid Gharar and Maysir, Islamic fund managers are not allowed to undertake excessive risks or speculations. The fund managers issue certificates of investment to investors, making them pro-rata owners of the fund, earning profit on a pro-rata basis.
A unit trust or investment fund is a collective investment scheme in which many investors with similar financial goals, investment strategy and risk tolerance pool their surplus funds to invest in a large diversified portfolio of financial instruments, professionally managed on behalf of the investors. An Islamic unit trust is very similar, except that the portfolio would be built with Shariah-compliant instruments and the professional managers would be responsible for following Islamic guidelines in the procedures and management of the unit trust, in addition to following all due diligence for a regular unit trust. Unit trusts or investment funds can be open-ended or close-ended.
An open-ended unit trust is one with the authority to issue new units and redeem existing units at any time. The fund manager of such a unit trust publicly offers the units and any proceeds received are added to the collective fund. On the other hand, investors can purchase units in such unit trusts directly from the unit trust company or its authorized agent, and are able to sell back their units to the unit trust company at the existing market price, which fluctuates every day depending on the performance of the fund. A close-ended unit trust can issue a limited number of units only. Once the original investors have acquired these units, any subsequent buying and selling of units happens only on the secondary market – the stock exchange. An initial public offering (IPO) of a company's shares is a form of close-ended investment where the share purchaser provides their investments to the company for good and if at any point they want to sell their shares, they do not get their money back from the companies but rather go to the stock exchange and sell the shares at the current market price.
Investment funds are managed either actively or passively. In case of active management, the fund manager actively designs the portfolio and buys and sells actively to manage it. In case of passive management, the role of the fund manager is to design the fund as close to a chosen index as possible with the stocks included in the index; the fund's value then moves up or down with the index. The main benefit of investing in a mutual fund for investors is that they can diversify at relatively low cost with smaller investment amounts. Diverse types of mutual funds and Islamic mutual funds are available, as will be clear from the next segment of this chapter, developed to meet the different profiles of the investors, their risk and return appetite, time horizon, the amount available to invest and the liquidity they require. Other advantages include convenience of investment, professional management, transparent operations and supervision under governmental oversight. Disadvantages of investing in a mutual fund include the fees to be paid, sales charges (called load) that may be paid at the onset of the investment or when the investment is redeemed; some mutual funds may not require any load payment. Other disadvantages are that the investor may not be sure of how much income will be earned or will have far less say on the fund design and its updates.
A variation of the mutual fund is called the exchange traded fund (ETF). Mutual funds became very popular during the 1980s and 1990s and were priced based on the closing price of each day rather than priced during the day as trade moved. To deal with this limitation, ETF, which are also mutual funds, were created but were traded on the exchange like the shares of a company, with the price determined by market forces. ETFs have all the advantages of the mutual funds discussed above but additionally are highly tradable instruments. Shariah-compliant ETFs are called Islamic ETFs or I-ETFs. The first one listed was at the Istanbul Stock Exchange and was called the DJIM Turkey ETF.
Islamic investment funds can be divided into various types depending on the way they are structured.
A real estate investment trust (REIT) is an investment vehicle which invests mostly in real estate. The regulatory requirement on the minimum percentage of assets in a REIT that should be real estate varies between jurisdictions. According to PriceWaterhouseCooper (2017), the minimum percentage of REIT income that should be generated from real estate, for example, is 75% in the UK and the USA while in Malaysia it is 50%, and the minimum distribution to investors in all three countries is 90%. The PWC REIT Report (2017) estimates the current market capitalization of REITs globally at USD1.7 trillion, up from USD734 billion in 2010, which is almost 230% growth.
Real estate investment could be through direct ownership of the real estate or through a single purpose company whose principal asset comprises real asset or items that relate to real estate, and whose main income is real estate rentals. Islamic REITs usually use Ijara contracts or Ijara–Istisna contracts. These are often designed as equity REITs, where investors may get proportional ownership of the underlying real estate and earn stable rent income. Islamic equity REITs are structured like an Ijara fund, the difference being that the Ijara fund has fixed maturity while that of the Islamic REIT (I-REIT) is long-term or ongoing. Like all other investment funds, the REITs and I-REITs are structured by individual investors placing their funds into a common pool, which is invested in a managed pool of real estate, generating income from renting, leasing and selling real estate. The income of the REIT or I-REIT net of all management expenses is distributed regularly amongst the investors pro-rata to their investment, including any capital gains generated by the fund.
Structured as limited companies, most REITs and I-REITs are listed on stock exchanges and those not listed are traded OTC as private REITs or I-REITs. According to their core function, REITs and I-REITs can be divided into (1) those that manage owned real estate, (2) those that provide financing for real estate owners or operators and (3) the hybrids that are involved in both types of function. The biggest advantage offered by REITs and I-REITs is the opportunity for investors to more effectively and efficiently diversify their real estate investment at a much lower amount compared with direct real estate investments, and to have a much higher liquidity since they are traded on the stock exchange and it is so much easier to sell the units of the REIT or I-REIT than to sell the actual property. Investors can also choose locations of REITS and I-REITs to achieve further diversification compared with their investments in other categories of instruments. REITs are usually treated differently for tax purposes and are exempt from corporate tax, provided 90% of the income is distributed to investors.
Table 11.1 lists the similarities between REITs and I-REITs.
TABLE 11.1 Similarities between REITs and I-REITs
Factors | Conventional REITs and I-REITs |
Structure | REITs and I-REITs are both structured in the same manner, both invest mostly in real estate or real estate-linked assets and are required to have a trustee, a management company, property managers, valuations, etc. For REITs and I-REITs that are listed on the stock exchange, all their transactions need to follow relevant securities laws, guideline and rules. Meanwhile unlisted REITs and IREITs must ensure transactions are approved by the investors. |
Size | Since investment is mostly in a portfolio of real estate, both need to have a significant size. |
Tax treatment | Both types of REIT and I-REIT are treated similarly relating to corporate tax, stamp duty and capital gains tax. |
Distribution | A large part of the income realized from rental income, capital gains and other real estate-related income, often as high as 90%, is distributed amongst the investors pro-rata to their investment. |
Investment in foreign real estate | This is allowed subject to strict regulations – considering the entry barriers, exit strategies, political, economic, operational, accounting and taxation issues, and other risk elements. |
Table 11.2 lists the differences between REITs and I-REITs.
TABLE 11.2 Differences between REITs and I-REITs
Factors | Conventional REITs | I-REITs |
Regulatory framework | Involves the financial regulators for investment funds as well as the regulatory authorities related to real estate. | Involves the financial regulators for investment funds and real estate regulators, plus is regulated by Shariah law. |
Shariah Supervisory Board | Not required. | Required. |
Asset investment | No restrictions. Any real estate or real estate-linked asset can be invested in. | Any real estate or real estate-linked asset that is also Shariah compliant and used for Halal purposes can be invested in. |
Rental restriction | No restriction on the tenant's nature of business as long as it is legal. | The tenant's business should be legal as well as Shariah compliant. |
Financing instruments | Borrowing for assets of the fund is usually allowed up to a maximum percentage, usually around 50%. May vary in different jurisdictions, and all financing instruments are acceptable. | Borrowing for assets of the fund is usually allowed up to a maximum percentage, usually around 50%. May vary in different jurisdictions, and the financing instruments allowed must be Shariah compliant. |
Insurance | All real estate included in the REIT must be protected with insurance, which can be Takaful or conventional insurance. | All real estate included in the I-REIT must be protected with insurance, which ideally should be Takaful. If Takaful is not available, conventional insurance may be used. |
Many risks faced by the Islamic capital markets are the same as in the conventional capital markets, although some may be different. Since interest or Riba is not allowed, Islamic capital markets do not face this major risk of the conventional markets. Some of the major risks facing the Islamic capital markets are as follows.
The lack of Shariah-compliant instruments is a major challenge faced by fund managers in the Islamic capital markets and due to the inherent profit and loss-sharing mechanisms of Islamic financial instruments they may have greater risks compared with fixed-income instruments in the conventional markets. Conventional fund managers utilize derivatives like swaps, options, futures and forwards to minimize their risk exposure, which being Shariah non-compliant are not available to Islamic fund managers. Moreover, the secondary market for Islamic financial instruments is far less vibrant than the conventional markets, exposing Islamic fund managers to the risk of not being able to sell off instruments very quickly. Islamic fund managers are more prone to balance sheet mismatches since the Islamic money market is still in the developing stages and is not as active as the conventional money market. They may face higher cash outflows during downturns in the market when investors wish to liquidate their positions.
One of the crucial reasons for investors to choose an Islamic fund is to be able to invest and earn in a manner acceptable to their religious beliefs and Shariah law, and as such investors need to be guaranteed about the Shariah compliance of the fund, its operations and income. It is highly recommended that the fund set up an SSB comprised of Shariah experts, or at least avail themselves of the services of a Shariah consulting firm to oversee the investment fund. The main job of the board is to set the compliance parameters before the fund builds up its portfolio. These parameters are clearly documented and shared with the fund's shareholders or investors. The legal responsibility for the fund's Shariah compliance rests with the BOD rather than with the SSB, since the latter is not involved in the day-to-day management and control of the fund. There is concern amongst international regulators about the conflict of interest between the fund manager and the SSB and to ensure proper adherence to both legal and Shariah regulations, the authority, roles and responsibilities of the SSB and of management need to be carefully outlined and segregated.
The Shariah experts' main functions are to ensure the fund's assets, operations and transactions are Shariah compliant, to monitor and oversee the purification of the portfolio from any Haram or non-permissible income or action, to prepare a Shariah compliance report, provide the necessary certificates and help the management of the fund understand and operate in a Shariah-compliant manner, by providing advice and training to staff and also advice on the Zakat and other social and charitable distributions. The BOD also helps identify appropriate charities to receive donations to purify non-compliant income and gains. The SSB or consultant should be able to operate independently of the management and without any kind of pressure.
Shariah supervision is an ongoing activity. The SSB, in consultation with the management, at regular intervals reviews the fund, its assets and transactions to ensure Shariah compliance is achieved and reports any breach of compliance and recommends solutions. The SSB also issues an annual Shariah audit of the financial statements.
Table 11.3 lists the differences between Islamic and conventional investments.
TABLE 11.3 Differences between Islamic and conventional investments
Features | Conventional investment | Islamic investment |
Short-term interbank market | Mostly interest-based debt contracts are used. | Can only use Shariah-compliant contracts like Murabaha, Mudaraba and Wakala based on assets, equity and debt. |
Risk allocation of the instruments | Risk transferred from seller to buyer. | Risk shared between the two parties. |
Ownership of underlying assets | Instrument buyer does not have any ownership in the underlying assets. | Instrument buyer has ownership in the underlying assets. |
Principal protection | Principal is usually protected irrespective of the value of the underlying assets. | Principal not protected but linked to the value of the underlying assets. |
Price of the instrument | Based on expected yield, current interest rates and creditworthiness of the issuer. | Based on expected yield and market returns/market value of the underlying assets. |
A major product of the Islamic capital markets is the Sukuk, which can be described as an Islamic alternative to a conventional bond. The AAOIFI defines Sukuks as certificates of equal value representing undivided ownership shares in tangible assets, usufructs, services, specific projects or special investment activity (AAOIFI, 2008, p. 307). Meanwhile, according to the IFSB, another Islamic regulator, Sukuks are certificates representing proportional ownership in an undivided part of an underlying asset and the holder of the certificate has all the rights and obligations related to such asset (IFSB-2). The Islamic Fiqh Academy of the OIC declared the Sukuk to be a legitimate instrument.
In the 1st century, during the Umayyad Caliphate, there is evidence of Sukuk certificates being used as commodity coupons instead of cash payments to soldiers. During the mediaeval period they were used as the main instrument to transfer commercial payments between cities and reduce the use of cash, which was less safe. In current times, Sukuks are used in modern Islamic finance as an alternative funding source through asset securitization. To summarize, the Sukuk is a legal instrument, a financial certificate, which – unlike a conventional bond – needs an underlying asset in the form of ownership or lease agreement.
The Sukuk certificate provides ownership or beneficial interest in an asset or enterprise and is neither a share nor a bond but has characteristics of both. A bond is a contractual obligation of the issuer to pay bondholders a fixed interest, the coupon, on specified dates and the principle at maturity of the bond. As such, it is a debt instrument, the issuer being the borrower and the bondholder being the lender. In contrast, Sukuks are structured by setting up a special purpose vehicle (SPV) which acquires the underlying assets and issues financial claims in the form of tradable Shariah-compliant trust certificates to investors, providing them with undivided proportional ownership and the right to the Shariah-compliant income stream from the asset and any proceeds from the realization of the Sukuk assets. The Sukuk market grew phenomenally during the first decade of the 21st century. In 2011 a record-breaking USD84.4 billion Sukuks were issued globally, and Sukuks have become a popular investment vehicle in the GCC and South-East Asia (Hasan, 2014).
Sukuks are designed to provide an alternative to conventional bonds, ensuring that all Shariah-non-compliant features are excluded, including Riba and Gharar. A major advantage of most Islamic banking products is the ability of the bank to securitize the product and thus access a much larger source of funds from the public investors. To undertake securitization of any Islamic finance contract, a special entity is created – the SPV – which ceases to exist once the project is completed. The most common classification of Sukuks depends on the major Islamic finance product on which they are modelled using Islamic financial engineering. The various types of Sukuk under this classification are described below.
This is the most common form of Sukuk, based on the Ijara contract, and mostly used for leasing and project finance. In Ijara Sukuk, the issuer in need of financing first sells the asset to the investors, thus collecting the funds it needs. The issuer then leases the asset back from the investors based on the Ijara mode and issues the Ijara Sukuk certificates to the investors who are also the lessors now. The Sukuk certificates represent the undivided proportional ownership and right to lease in the leased asset of the investors/lessors. Ijara Sukuk are tradable on the secondary market, as they are backed by real tangible assets and are usually issued on stand-alone assets included in the balance sheet, like land, buildings, equipment, vehicles, etc. The lease payments can be variable based on the market rental rates and paid to the investors similar to coupons. Sometimes the Ijara Sukuk may include the right of the issuer to buy back the asset from investors at the end of the lease period, as in the case of an Ijara wa Iqtina contract. The purchase price either has to be pre-agreed or needs to be determined based on the market price. But this is a debatable feature amongst Shariah scholars, since it may represent a pure buy-back clause that is not considered Shariah compliant and if included, all regulations to ensure Shariah acceptance need to be inserted. Some of the risks associated with Ijara Sukuk are that the lessee defaults or is genuinely unable to pay rentals, the lessee refuses to or is unable to buy back the asset at the end of the Ijara, or the asset itself may be damaged through no fault of anyone or may become obsolete.
Ijara Sukuk is quite popular in mobilizing funds for long-term infrastructure projects and for subsequent trading in the secondary market. Some variations of the Ijara Sukuk include the following.
Figure 11.1 gives an overview of the Ijara Sukuk.
This form of Sukuk uses the Istisna mode of Islamic finance to fund manufacturing, real-estate development, large industrial projects, construction of major items like power plants, ships, aircraft, etc. To raise the requisite funds, the issuer or bank produces Sukuk certificates that provide the holders with proportional ownership in the asset to be manufactured or constructed. Once the asset is completed, its ownership may be passed on immediately to the ultimate client and the deferred payments made by the client are passed on to the Sukuk holders. Sometimes, instead of ownership transfer, the asset is leased to the client and the Istisna Sukuk converts into an Ijara Sukuk. The Istisna Sukuk is usually of long term. The detailed specifications and costs of the asset are mutually agreed between manufacturer and client. Once a Sukuk is raised, the full costs are provided to the SPV, who may pay the manufacturer in instalments in accordance with the production schedule. After production and delivery is completed, the buyer starts repaying the price in deferred instalments, which are passed on to the Sukuk holders as their payments. The risk involved could be a manufacturer failing to produce and deliver, the asset becoming damaged or obsolete, or the client defaulting on payments.
The steps of the Istisna Sukuk are given below.
Figure 11.2 gives an overview of the Istisna Sukuk.
This is based on the Salam mode of financing, where the buyer pays the full price of the asset in advance on spot; usually the buyer gets a discount on the price for paying in advance. The seller would deliver at a mutually agreed future date. The contract is like a conventional forward contract. The majority of Salam Sukuks are short term. The SPV established for the Sukuk raises funds by selling the certificates to Sukuk holders and finances the seller on spot as advance payment to produce the asset under contract. Once production is completed, the seller sells the asset to the end buyer and pays the Sukuk holders the original finance amount plus a markup via the SPV. The asset in this case is not transferred to the Sukuk holder when the Sukuk is issued; as such, the Salam Sukuk cannot be traded and needs to be held till maturity. The Salam Sukuk has similarities to a conventional zero-coupon bond, where no payments are made during the life of the bond or Sukuk and a single payment is made at maturity. The risks that can occur are that the seller is not able to confirm a buyer for the asset or cannot deliver the asset on time, or is not able to sell it at a price to pay the Sukuk holders their original funds, the markup and make a profit itself.
Figure 11.3 gives an overview of the Salam Sukuk.
The Murabaha Sukuk is based on the Murabaha mode of financing, where a seller interested in acquiring assets to resell using the Murabaha mode may raise the cost to acquire the assets by issuing Sukuks. The Sukuk holders would own the assets till they are resold, and will be entitled to the marked-up sales price in proportion to the shares in the Sukuk issue.
Figure 11.4 gives an overview of the Murabaha Sukuk.
Mudaraba Sukuks are equity-based, unlike the previous Sukuks discussed, which are a deferred payment debt like instruments or leasing. In Mudaraba one party, the Rab al Maal, pays the entire capital; the other party, the Mudarib, provides the effort and entrepreneurship. The two parties share the profit according to a pre-agreed ratio, but the entire financial loss is borne by the Rab al Maal and the Mudarib loses their effort. When the Sukuk is structured, it represents undivided ownership of units of equal value in the Mudaraba equity and these units are registered in the names of the Sukuk holders who contribute their capital into a specific project to be managed by the issuer or Mudarib. The Rab al Maal is the Sukuk holders, while the Mudarib could be the bank or SPV or an entrepreneur with a good business concept but in need of capital. Usually, the restricted Mudaraba concept is used, which provides clear guidelines on the type of business, the location of the business and the period during which the business will be conducted. The return on this partnership Sukuk is variable, and as such it is still not a very popular mode of constructing the Sukuk, since Sukuk holders prefer a regular stream of income.
The Islamic Fiqh Academy of the OIC, in its fourth session in 1988, stipulated the following resolutions related to the Mudaraba Sukuk.
Figure 11.5 gives an overview of the Mudaraba Sukuk.
Musharaka is based on an equity partnership where all parties provide the capital and the profits are shared in a pre-agreed ratio, while the losses are borne according to the capital contribution. Musharaka Sukuks are structured to raise funds for new projects or to extend an existing project or for a huge business activity based on a joint venture. The Musharaka Sukuk certificate gives the Sukuk holders proportional ownership in the assets of the Musharaka equity partnership project, and these certificates are negotiable instruments which can be traded in the secondary capital market. Each shareholder of the Musharaka and the Sukuk holder in case of Musharaka securitization has the right to participate in the management of the enterprise or project if they so wish. The shareholders or Sukuk holders may also choose to appoint the issuer or SPV to act as their agent and manage the Musharaka venture. More often the company or business acts as the managing partner while the SPV, on behalf of the Sukuk holders, may act as the silent partner, not getting involved in the day-to-day business.
Figure 11.6 gives an overview of the Musharaka Sukuk.
Sukuks can also be classified or grouped as tradable, non-tradable, debt-based and equity-based. Tradable Sukuks are those that represent ownership in tangible assets or in an enterprise that can be bought or sold at the Islamic capital market – for example Ijara, Mudaraba and Musharaka Sukuks. Non-tradable Sukuks are those that represent receivables as cash or goods and hence not tradable – for example Murabaha and Salam Sukuks. Equity-based Sukuks are those that are modelled on partnership-based Islamic instruments, like Musharaka or Mudaraba. Debt-based Sukuks are based on receivables, like those arising from Murabaha or Salam.
Another classification divides Sukuks into three groups.
Another manner of classifying Sukuks is related to what recourse is available to the Sukuk holders; Sukuks are grouped as asset backed and asset based. According to Dr Sayd Farook, Global Head, ICM, Thomson Reuters (Hassan, Kayed & Oseni, 2013), asset-backed Sukuk certificate holders rely on the underlying asset to generate yield and recover their investments. An example could be a building with rental income which provides the return to the investors but if the issuer fails to repay, the asset could be sold to return the investors' money. On the other hand, the asset-based Sukuk involves purchase and sale of the asset, as in Murabaha or Ijara contracts where the asset already exists, and the investors depend on this asset as the last resort to recover their investment. So, we can see that in case of the asset-backed Sukuk the asset is still in the ownership of the Sukuk holders and thus recourse to it is easier. On the other hand, in asset-based Sukuk the asset was purchased and sold, and its deferred payments make payments to the Sukuk holders so in case of non-payment, ownership of the asset is no longer with the Sukuk holders, thus the main recourse is the creditworthiness of the customer who purchased the asset.
After their initial introduction into the Islamic financial markets, Sukuks earned tremendous popularity and many players entered the market. The regulatory environment was still not significantly developed, and doubts about the Shariah compliance of the Sukuk issues in the market began to circulate. Critics believed the Sukuks were sometimes being used unethically to take advantage of the demand for Shariah-compliant investment amongst Muslims in general and the affluent population in the oil-rich Muslim-majority countries of the Middle East specifically, and these hastily designed instruments were not fully following Shariah requirements.
In 2007, the Chairman of the AAOIFI, Sheikh Taqi Usmani, commented that 85% of all Sukuks in the market were not fully compliant with Shariah. This was a major set-back in the growth and acceptance of Sukuks. With nearly 200 members from 45 countries, the AAOIFI is the major international Islamic standard setting body and its regulations are mandatory in Bahrain, Dubai International Finance Centre, Jordan, Qatar, Sudan and Syria. Elsewhere the regulations are used as a guideline for the Islamic finance industry. As the Chairman of AAOIFI, Sheikh Usmani made the following comments related to Sukuks.
The AAOIFI declared five key Shariah implications for Sukuks.
Bond rating is a very crucial factor in the issuance of bonds by governments or corporations, and for the investment by individuals and organizations into these bonds. The rating of a bond depends mainly on the creditworthiness of the issuing corporation or government, and varies from ‘AAA’, considered as the highest grade, to ‘C’, which is the lowest. Credit rating guides prospective investors to pick the bonds best meeting their risk–return appetite. Based on rating, bonds are mainly grouped into high-rated bonds called investment grade bonds and lower-rated or riskier bonds called junk bonds. Both in the conventional bond and the Islamic Sukuk market, the rating is closely linked to the price – a higher rating can demand a higher price for the bonds or Sukuk certificates.
Globally, more than 50 rating agencies operate, though the top three rating agencies are Moody's, Standard & Poor's and Fitch. In addition to rating conventional bonds, these three main rating agencies also rate Sukuks, which are the Islamic alternative to bonds. Additionally, some countries have their own localized rating agencies, as in Malaysia, India, Bangladesh and Sri Lanka. In 2005 the Islamic Development Bank established the International Islamic Rating Agency (IIRA), which has been striving to ensure greater reliability and quality in the Islamic finance industry. Bonds are very simple debt obligations and easy to evaluate and rate. In contrast, Sukuks are more complicated and can be constructed in a variety of different ways, and both the underlying asset of the Sukuk and the issuer needs to be rated.
Sukuk ratings are yet to earn the same reliability as bond ratings, due to a lack of efficient domestic specialized rating agencies and due to the inexperience of the international rating agencies in dealing with Sukuks. Over time, as the popularity of Sukuks increases, it is expected that the international agencies like Moody's, Standard & Poor's and Fitch will increase their involvement and expertise by setting up special departments dealing with Sukuks, and will also support the local rating agencies to improve, thus enhancing the transparency and safety in the Sukuk markets, benefiting the issuers, investors and regulators. Factors related to the issuer and the security that are considered in arriving at the ratings are the issuer's history in managing Sukuk issues, cash balances and reserves, amounts and consistency of cash flow, the issuer's business history, type of assets and repayment history, and the security provided by the underlying asset, project or enterprise involved in the Sukuk issue to repay the Sukuk holders.
The ability of Sukuk holders to trade their certificates on the secondary market has been a major issue to be dealt with for Shariah scholars. In general, Shariah does not permit the trading of debt. This can only be done under strict regulations outlined by the AAOIFI. These regulations are that the Sukuk holder own the Sukuk certificates with all ownership rights and obligations in the underlying assets, tangible or intangible, usufruct or services, but receivables or debts should be excluded from the assets. The Sukuk manager, as Mudarib or partner or agent, cannot add to the income of the Sukuk holders if the income is below expectations or they can repurchase the Sukuk from the Sukuk holder at the nominal value at maturity, but can repurchase at the current market value. In case of Ijara Sukuk though, the lessee can buy the underlying leased assets at their nominal value, provided that the lessee is not the Sukuk manager. Finally, a well-established SSB needs to be formed to ensure not only the structuring of the Sukuk, but also that all procedures related to its original sale, trading, accounting and auditing are Shariah compliant. Both the primary and secondary Sukuk markets are still small and underdeveloped. The cities of London, Luxembourg, Labuan in Malaysia, Dubai and Bahrain are developing as major global Sukuk centres, with regulations and tax issues being significantly supportive of the issue and trade of various types of Sukuks.
Investors aim for safety of their capital, maximum return and want a balance between liquidity and profitability of their investment. Shariah-compliant investors prefer ethical and socially responsible investments that are devoid of all Shariah-prohibited items like Riba, Gharar, Maysir and restricted businesses like alcohol, pork, drugs, gambling, adult entertainment and pornography, etc.
Bonds are financial instruments issued by governments or corporations to raise funds, usually for the long term. Bondholders are creditors and paid interest by the issuers, which is called the coupon. The bonds are rated according to the credit rating of the issuer and they may also have collateral attached to them. Bonds are first issued and sold in the primary market and later traded in the secondary market. At the maturity date the principal amount is returned to the bondholder. The main Islamic prohibition in bonds is that they pay interest, and also they don't have any underlying asset. Sukuks, on the other hand, are based on an underlying asset and Sukuk holders own part of this asset and all risk and return related to the ownership.
Sukuks are called the Islamic alternatives to conventional bonds, and both products have similar advantages.
Additionally, Sukuks have another advantage and that is equitable distribution. Sukuks are an instrument which can be used for equitable distribution of wealth, since all investors benefit from the actual profit generated by the underlying assets.
Table 11.4 details the differences between conventional bonds and Sukuks.
TABLE 11.4 Differences between conventional bonds and Islamic Sukuks
Features | Conventional bonds | Islamic Sukuks |
Definition of the instrument | Conventional bonds are pure debt of the issuer, with no ownership; representing a loan with periodic interest payable as well as the principal or face value payable at maturity. | Sukuks are an ownership stake in the underlying asset, its usufruct or services; representing undivided proportional ownership of the Sukuk holders. |
Certificates issued | Conventional bonds represent a simple debt certificate. | Sukuks represent a trust certificate giving the Sukuk holders ownership rights to the underlying asset. |
Type of contract | Bonds represent a loan contract creating indebtedness. | Sukuks rarely use a loan contract, since regular loans based on interest are Shariah prohibited. Rather, Sukuks utilize a variety of contracts creating financial obligations between issuer and investors, according to the Islamic financial instrument being used for securitization (Mudaraba, Ijara, Musharaka, etc.) |
Asset linked to the instrument | Can be receivables or other financial assets. | Tangible or intangible asset, or its usufruct or services. |
Return earned | Interest or coupon is the return earned by bondholders irrespective of the profit or loss made by the enterprise or project and the principal amount is also returned at maturity. | Sukuk holders or investors have the right to earn profit from the enterprise or project pro-rata to their ownership in the sale, lease or partnership contract, but are also liable to any losses incurred. |
Asset-related expenses | Bondholders depend mainly on the creditworthiness of the issuer, not the asset-related expenses of the enterprise or project. | As owners of the assets, Sukuk holders are concerned about the asset-related expenses, their return being calculated only after the deduction of the relevant expenses. |
Equitable distribution | Holders of bonds receive fixed interest only irrespective of the profit or loss made by the project or company, so neither gain nor lose from the company's or project's status since their rights are not linked to the assets of the company or project. | Sukuk holders participate in the ownership of the company or project that entitles them to any appreciation or depreciation of the underlying asset. This ensures more equitable distribution, where investors benefit from the actual profit and not a fixed interest rate, but bear any losses also. |
Relationship | In case of conventional bonds, the contractual relationship between the issuer and the investor is that of debtor and creditor. | In case of Sukuks, the contractual relationship between the issuer and the investor varies with the Islamic finance instrument used to build the Sukuk and could be that of seller–buyer, lessor–lessee or partners. |
Maturity | The term of the bond does not need to correspond to the term of the underlying project or enterprise. | The Sukuk maturity corresponds to that of the underlying project or activity. |
Prospectus | The bond prospectus provides details of the issuer and the use of the funds raised by the bond, no Shariah constraints are relevant or mentioned. | The Sukuk prospectus provides details of the issuer, the underlying asset, usufruct or service as well as details of how Shariah compliance is achieved. |
Ethics | Bond managers do not have to worry about the ethics of the project. | Sukuk managers need to ensure that the underlying asset, project or activity on which the Sukuk is based is ethical and not harmful to society or the environment, as Shariah requires. |
Contractual obligation | The issuer of the bond has a contractual obligation to pay the bondholder the coupons on fixed dates and pay back the principal amount at maturity. | The issuer of Sukuk is contractually obliged to share the profit or loss of the underlying asset, project or activity with the Sukuk holder. |
Say in the operations of the project or enterprise or asset | Bondholders, as creditors, do not have a say in how the bond proceeds from the bond issue are utilized or managed. The issuer has complete control on the operations and management, provided they pay the bondholders periodic coupon and the face value at maturity. | Sukuk managers serve as the representative of the Sukuk holders, responsible for ensuring their best interests are upheld in the operations and management of the underlying assets, project or activity. Sukuk managers may also be the issuer, and their right to retain this position depends on the Sukuk holders who have placed their trust in the manager as owners and not as creditors. |
Recourse in case of default or loss | Conventional bonds may be backed by financial assets such as receivables, which cannot be used in Sukuks. If the issuer of the bond defaults, secured bondholders have recourse to the financial or physical asset provided as security, but unsecured bondholders are only part of the general creditors seeking the assets of the company after its bankruptcy. | Asset-backed Sukuk certificate holders have recourse to the underlying asset, which could be sold to recover their investments if the issuer fails to repay. For asset-based Sukuks, which involve purchase and sale of the asset, the underlying asset has already been sold so in case of non-payment, the asset cannot be sold and the only recourse left to the Sukuk holders is the creditworthiness of the issuer and the customer who purchased the asset. |
Trading | Bonds are actively traded on the stock exchange and this amounts to trading of debts, normally with discounting. | Sukuks are not independent instruments but are based on an underlying Islamic finance instrument and, depending on which instrument they are linked to, some may be tradable or not. Tradability depends on the nature of the financial rights the Sukuk holders have on the underlying instrument. All Sukuks, except the Salam and Murabaha Sukuks, can be traded. In case of Salam and Murabaha Sukuks the ownership of the asset has already been transferred to the client, so they cannot be traded but need to be held till maturity. |
Prices | Bond prices depend on the creditworthiness of the issuer. | Asset-backed Sukuk prices depend on the underlying assets, while asset-based Sukuk prices depend on the trustworthiness of the issuer. |
When making investment decisions, Islamic investors also need to choose between the purchase of Sukuks or the purchase of Shariah-screened shares. Some differences between Sukuks and shares are listed in Table 11.5.
TABLE 11.5 Differences between Sukuks and Shariah-screened shares
Feature | Sukuk | Shares |
Type | Sukuks are classified and regulated as debt instrument, though some types of Sukuks are built on equity-type financial instruments. | Shares are classified and regulated as equity instruments. |
Risk | Considered as low-risk instruments with fixed or regular return, though some Sukuks have variable return. | Considered as high-risk instruments with variable return. |
Maturity | All Sukuks have a limited maturity period. | Shares are an ongoing investment, having unlimited maturity period. |
Security | Sukuks may be attached to some security or may be unsecured. | Shares are always unsecured. |
The global investment industry is a complex system of products, markets, institutions, transactions and regulations, broken into the money, capital, commodity, foreign exchange and derivative markets. The Islamic investment industry has many similarities to its conventional counterpart, having the same markets but within Shariah restrictions.
All shares as equity are not acceptable Islamic investment tools but need to go through a Shariah screening process involving industry and financial screening. There are very few companies that are devoid of all Shariah prohibitions, and to manage this situation Shariah scholars and Islamic regulatory bodies have developed flexibilities within the screening process to allow those stocks that match Shariah compliance reasonably. As in the case of conventional asset management, Islamic asset and fund management involves investors pooling their funds which are professionally invested and managed by professionals, but with Shariah being a major objective. Common Islamic funds include debt, commodity, Ijara, equity, balanced, private equity, venture capital funds and REITs. As with all kinds of funds, I-REITs have similarities with as well as differences from conventional REITS.
Islamic capital markets face risks related to the market, credit, foreign exchange, fiduciary, Shariah non-compliance and liquidity. Investors who choose Islamic investment products or funds over conventional ones do so mainly for the religious requirements of Shariah compliance, and as such Shariah supervision of Islamic asset and fund management is very important. Islamic investments differ from conventional ones with respect to the interbank market, risk allocation, ownership of underlying assets, principal protection and price of the instrument.
Sukuks are the Islamic alternatives to conventional bonds. Important characteristics of the Sukuk include pooling of funds of multiple investors, ownership in the underlying asset, ensuring Shariah compliance, Sukuk parties of the originator, bank, SPV, investors and SPV manager. Other characteristics are related to the sharing of profit and loss and Sukuk payments, securities offered, rating, trading and Sukuk restrictions. Sukuks are designed on a variety of Islamic financial products, including Ijara, Istisna, Salam, Murabaha, Mudaraba and Musharaka.
From the initiation of Sukuks in the markets during the 1980s and 1990s they became very popular, but in 2007 Sukuks faced major controversy when the Chairman of AAOIFI, Sheikh Usmani, commented that many of the Sukuks in the market were not totally Shariah compliant. The AAOIFI has since forwarded specific regulations to improve the Shariah compliance of Sukuk issues. Like bonds, Sukuks are also rated by major conventional rating agencies as well as the IIRA and localized Islamic rating agencies. Sukuks also trade in the secondary markets, as do bonds.
Sukuks share similarities to bonds with respect to providing a funding source, liquidity and trading in the secondary market, having various structures matching different investor profiles, being an attractive and rated investment instrument, providing a pricing benchmark and enhanced issuer profile. Sukuks differ from bonds with respect to the certificate and type of contract used, links to the underlying assets, return and expenses related to the assets, issuer–investor relationship and obligations, maturity of the instrument, ethics, recourse in case of default and pricing.
Circle the letter next to the most accurate answer.
Write T for true and F for false next to the statement.
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