THE TRANSFORMATION OF ISLAMIC LAW IN GLOBAL FINANCIAL MARKETS JONATHAN G. ERCANBRACK

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1 THE TRANSFORMATION OF ISLAMIC LAW IN GLOBAL FINANCIAL MARKETS JONATHAN G. ERCANBRACK lgg CAMBRIDGE UNIVERSITY PRESS

2 Acknowledgements x Table ofcases and legislation List of abbreviations xviii Arabic-Englishglossary xxi xii 1 Introduction Sharia and the nation State The globalisation ofcommercial law The role of context in the analysis oflfl Structure Technical matters 21 2 The sharia: sources, legal theory and unofficial sources of law The formal sources oflslamic law The theory oflslamic law The epistemologyofacts Thetextualismofthe UsülAl-Fiqh Maslahah and rationalising legal tools Legal stratagems (hiyal) The role of custom as a legal source The sharia in pre-modern legal practice Concluding remarks 48 3 Islamic commercial doctrine and classical commercial transactions God's covenant with mankind The role of Intention (Qasd) 52 v

3 3.3 The system oflslamicnominate contracts The conditions necessary for the general validity of contracts Appending shurüt (conditions) to contracts Conditions and the four schools of law Gharar 'lhe sale of a non-existent object The sale oiäebx(bay' al-dayn) Gharar and the four schools of law Avoiding the rigidities of gharar The prohibition of usury: ribä The Islamic origins of the prohibition of ribä The differentiation of the ribä concept: money, time and commodities Historical commercial practices The partnership (s&an&ßa) The use ofinterest in commercial transactions Concluding remarks 85 Global financial markets and legal transformation The globalisation of financial services Liberal values in the global economy Globalisation and financial Innovation Transnational corporations and Islamic financial law Commercial pressures for standardised Islamic financial contracts The religious and ethical aspects of standardisation The methods and organisations of international legal convergence Standard terms and conditions in cross-border financial transactions Standard terms in a syndicated muräbahah facility Islamic financial ijtihäd 129

4 VÜ 4.11 The limits of Islamic financial Innovation Concluding remarks Vehicular legal systems: the legislative Implementation of sharia principles Islamic finance and the United Kingdom The transmission of Islamic finance to the United Kingdom Retail markets The inclusion of the sharia in English law The legislative and regulatory approach to Islamic financial transactions The legislative Implementation of Islamic financial transactions IFIs and the benefits of sovereign sukuk issuance UK sovereign sukuk issuance The Implementation of sukuk Concluding remarks The regulation of Islamic financial institutions in the United Kingdom The regulation of financial markets The objectives of financial services regulation Islamic financial intermediation The FSA/PRA regulatory approach to Islamic finance The regulatory Classification of Islamic financial products The regulatory Classification of sukuk The regulatory Classification of mudärabah The sharia audit process The risks of sharia non-compliance The impact of EU regulatory harmonisation Global regulatory initiatives The impact of Basel II Basel III capital and liquidity reforms 220

5 viii CONTENTS 6.10 Islamic financial transactions in English courts The Symphony Gems case The Beximco case and the Rome Convention The Investment Dar case Concluding remarks The regulation of Islamic financial institutions in Bahrain Islamic finance and GCC financial centres The role of the sharia in the legal system of Bahrain Bahrain: an Islamic financial centre The authorisation of Islamic banking services Types oflicensee The regulatory definition of Islamic financial services Capital adequacy requirements for IFIs Minimum capital adequacy ratios Minimum capital requirements for a muräbahah to the purchase orderer Governance Standards for sharia supervisory boards A hands-on approach to sharia governance Approved persons criteria Concluding remarks The regulation of Islamic financial institutions in the United Arab Emirates The role of the sharia in the judicial systems of the UAE The Central Bank of the UAE and its regulatory approach to Islamic finance The authorisation of IFIs The regulatory Classification of Islamic financial products Capital adequacy Standards for IFIs 280

6 ix 8.6 Governance Standards for IFIs Concluding remarks The regulation of Islamic financial institutions in the Dubai International Financial Centre (DIFC) The legal and regulatory system of the DIFC The DFSA and its regulatory approach to Islamic finance The authorisation of IFIs The regulatory Classification of Islamic financial products Capital adequacy Standards for IFIs Governance Standards for IFIs Concluding remarks The enforcement of non-national legal systems: the arbitration of I slamic financial disputes Arbitration and Islamic financial transactions The nature of arbitration The compatibilityof sharia and modern arbitration Arbitration in the Arab world The enforcement of arbitral awards The enforcement of arbitral awards in English courts The enforcement of arbitral awards in GCC states Concluding remarks Conclusion 336 Bibliography 342 Index 374

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