" This article published in October , 2007 Edition of 'Business Islamica' Magazine-Dubai UAE"
By: El Waleed M. Ahmed is a legal consultant and head of the Foreign Affairs Department at Kuwaiti law firm KLF, one of the leading law firms in Islamic financial transactions in the GCC. El Waleed recently took part as a leading legal consultant in a $200 million multinational Islamic Musharaka Sukuk transaction in Kuwait. El Waleed holds an LL.M degree with a specialization in Islamic investment From Temple University School of Law in Philadelphia. E-mail: elwaleed@kuwaitilawyer.com
In Islam, there is no generally accepted codification of jurisprudence. Shariah law is open to interpretation and scholars frequently hold varying views on key Shariah issues. Furthermore, Islamic jurisdiction is not bound by precedent, and legal opinions may deviate from previous decisions made by other Shariah scholars. A Shariah board has considerable discretion in the interpretation of Islamic law and may choose any school of thought to inform its decision-making process.
This lack of standardization of Shariah boards’ rulings is the Achilles heel in the global acceptance and growth of Islamic finance. A consistent ruling on the religious compliance of certain assets and transaction structures in terms of Shariah law has yet to emerge. In the conventional arena, this can lead to uncertainty and confusion.
Broadly speaking, the three key functions of Islamic finance Shariah boards are:
- To provide advice to Islamic financial institutions
- To supervise and audit transactional procedures
- To supervise and actively participate in the creation of innovative Shariah-compliant investment and financing products and services.
The Effects of Non-Standardized Shariah Rulings
The absence of a universally accepted central religious authority is largely a result of the lack of uniformity in religious principles applied in different Islamic countries across the world. Shariah boards at individual banks have their own way of defining what is and is not Islamic banking. This results in different transactions being interpreted differently and causes uncertainty about what is the acceptable way to do business in the Islamic banking and finance system. Furthermore, because of this lack of consistency, an accurate assessment of risk for both the financial institution and the customer can be difficult to make.
The differences in interpretation of Shariah laws also means that one Islamic bank may not be able to “copy” another Islamic bank’s products, and this can stifle the growth and integration of Islamic finance at both national and international levels.
Lack of standardization is also a contributory factor in the sluggish trading levels on the Sukuk market. It prevents investors from knowing what risks they are assuming when they invest and increases the costs associated with Sukuk issuance.
International Harmonization
Conformity or similarity among the Shariah supervisory boards of Islamic financial institutions is urgently required to extend the possibilities of concept and application in the industry. Establishing Shariah boards at a global and central bank level is needed to expedite and develop some standard guidelines on the conduct of Islamic financial transactions. Standardization will help avoid contradictions or inconsistencies between different Fatwa rulings and their application by these institutions.
Another important factor is the mutual recognition of financial standards and products across jurisdictions. The progressive harmonization of Shariah, in this respect, needs to be viewed as a step towards greater international financial integration. Moreover, supervision and regulation at the national and regional levels are necessary safeguards against potential improper practices, which can cast doubt on the credibility of all participants. Shariah scholars from around the world should contribute towards greater understanding and international convergence. Such convergence and harmonization can only happen with greater engagement among the regulators, practitioners and scholars in Islamic finance in the international community.
The existence of a unified Shariah board via a council representing different Islamic schools of thought, nationally and internationally, would facilitate the conformity of different types of financial services to Islamic law. This would also define cohesive rules to expedite the process of introducing new products.
Active Participation
The early engagement of a Shariah supervisory board in the creation of a new Sukuk is of utmost importance so as to build a solid Islamic foundation. It also paves the way for speedier creation of the Sukuk. It is crucial that the Shariah board actively participates in the creation of Sukuk, in addition to its supervisory role.
Working Together
In order to promote a global standard for Islamic finance instruments, there are a couple of key steps that must be taken.
The Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI) has taken the lead by preparing Shariah standards. These have been adopted by a number of government authorities and central banks, which provides an avenue for Shariah compliance as well as product innovation.
Collective efforts towards international collaboration among major Islamic financial regulatory bodies such as the Islamic Financial Services Board (IFSB), AAOIFI and the central banks in Islamic countries is important in strengthening the fabric of Islamic finance.
The Next Level
Islamic finance instruments, particularly Sukuk, are becoming an increasingly important consideration – for both Muslims and non-Muslims – from the perspective of investment and product innovation. Shariah boards need to keep up with the growth and sophistication of the industry and make sure they are as effective as possible. Some recommendations:
- More training in economics, investments and legal issues related to investments and product innovation. The lack of knowledge about modern economic and legal issues can weigh down the ability of Shariah scholars to issue well-informed rulings on financial products and investment activities.
- Placing specialized Shariah scholars on separate Shariah boards for different projects to work more efficiently on projects best suited to their particular areas of expertise. This process will ensure that the right scholars in the right numbers develop, certify and supervise the financial products and services endorsed by Islamic financial institutions.
- Shariah boards should be independent from financial institutions in order to ensure transparency and efficiency when giving opinions on proposed contracts and transactions.
- Shariah advisors should work closely with financial institutions and lawyers in developing new Islamic financial instruments.
- There is a nagging concern about the availability of suitably qualified Shariah advisors. Their numbers need to be increased. This will allow more Shariah-compliant transactional procedures and more time for advisors to spend with economists and investment practitioners to develop new Islamic financial products.
- Financial institutions need to develop operating procedures to ensure that no form of investment or business activity is undertaken that has not been approved in advance by the religious board.
- From the outset of structuring a Sukuk, Shariah advisors should scrutinize to ensure that the product concept and its process flow is fully implemented according to Shariah. Shariah advisors and lawyers should work hand in hand to thoroughly review the terms and conditions of the Sukuk contract.
Strength and Flexibility
Flexibility is a major strength of Islamic finance, and this implies that a broad variety of products can be tailored to each client’s needs. The differences in rulings by different Shariah boards is advantageous in a way, as it brings about more innovation and creates new room for Sukuk structures and Islamic finance instruments. In the process of providing remedies, the principles of Shariah are not to be compromised, as they are essential to a dynamic market.
