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By Timur Abimanyu, SH.

MH

The Washington Post

The Polemics of Governing Law in Islamic Finance:


Recent Developments and the Way Forward

The 2nd annual thematic workshop organised by the Institute of Islamic Banking and
Insurance (IIBI) and the International Shari’ah Research Academy for Islamic Finance
(ISRA) in collaboration with Thomson Reuters on 29th November, 2010 was a huge success
with more than 120 delegates managing to attend despite adverse weather and a tube strike
on the day. The workshop held in London was sponsored by Westlaw Business.
The Rationale for the Workshop
Compliance with Shari’ah principles is the raison d’être of Islamic financial contracts. All
Islamic finance transactions have a governing law clause. As Shari’ah is a non-national
system of laws, and is subject to various interpretations, in order to create certainty about the
rights and obligations of the contracting parties, English law is normally chosen as the
governing law in Islamic finance cross-border transactions. There have recently been a
number of commercial litigation cases heard in the English courts involving Islamic finance
commercial contracts, where the issue of the governing law in such contracts came under
scrutiny. From the arguments of defaulting parties in these transactions, it became apparent
that there is scope for abuse via the tactic of opinion shopping among scholars and
unfortunately a great deal of potential for Shari’ah invalidity arguments to be used by
defaulting borrowers in order to evade their responsibilities under commercial agreements.
The 2nd annual thematic workshop was organised against this background and set out to
look at recent disputes, as well as to analyse the implications of the recent court decisions. It
also discussed the evolving Shari’ah compliance structures and alternative dispute resolution
mechanisms, as well as whether there is a need for an international convention to govern
cross-border Islamic finance transactions.
The Keynote Addresses
The programme started with one of two keynote speeches from Alderman Michael Bear, the
Lord Mayor of the City of London. He is head of the City of London Corporation and a
global ambassador for the UK-based financial services industry. Financial inclusion of the
Muslim population in the UK as well as the positioning of London as a leading international
financial centre are the two key objectives of UK government policy for supporting Islamic
finance. The Lord Mayor mentioned the various regulatory changes in the tax law for
Islamic financial transactions in order to level the playing field with the conventional
financial services sector. He commented that the UK is the only centre of Islamic finance in
the West with five fully Islamic banks and many Islamic window operations within
conventional bank structures. He also suggested that the UK is at the forefront of developing
the human resources with many institutes including IIBI and universities offering Islamic
finance education and training courses. Afterwards, Dato’ Muhammad Ibrahim, Deputy
Governor, Bank Negara Malaysia delivered the second keynote address in which he shared
the experience of Malaysia’s Islamic finance market and talked about the support by the
central bank and the government of Malaysia aimed at promoting the Islamic finance
industry. Since the passing of the first Islamic banking act in 1983, Malaysia has been
supporting the development of the market and is now a global leader with Islamic financial
transactions accounting for approximately 20% of the total financial system.
Market Analysis
The first workshop session, ‘Malaysia and London – Leading Beyond Islamic Finance
Hubs’, was moderated by Rushdi Siddiqui, global head of Islamic finance at Thomson
Reuters. The panel discussed the various developments in Islamic finance treasury
operations, as well as funds management in the UK and Malaysia. At present, there are
around 600 Shari’ah-compliant funds domiciled in 31 countries managing $35 billion of
assets. After Saudi Arabia, Malaysia is the largest market for Shari’ah-compliant funds with
34% of the market share in terms of number of funds and 26% in terms of the assets under
management (AUMs). The panel also discussed whether levelling the playing field between
Islamic financial institutions and their conventional counterparts in Muslim-minority
countries is enough to facilitate further growth of the industry or whether there is a need for
active government support in terms of a budget for education and awareness and removing
some of the misunderstandings. The panel also deliberated the issue of the creation of a
Shari’ah-compliant benchmark, critical for establishing the cost of funds in a framework that
is Shari’ah compliant. At present, the London Interbank Offered Rate (LIBOR) is usually
used as a benchmark in Islamic finance cross-border transactions. It was suggested that de-
linking from LIBOR would create greater confidence among customers and other
stakeholders within the Islamic finance industry, which would assist in its further growth
and development.
A Critical Review of Recent Disputes
The second session, ‘A Critical Review of the Recent Disputes in the Islamic Finance
Industry’ was moderated by Richard de Belder, partner and head of Islamic finance at SNR
Denton – an international law firm. The panel pointed out that the key characteristics of an
effective legal and regulatory framework for the Islamic finance industry are an enabling
environment that accommodates and facilitates the development of he industry; a clear and
efficient system that preserves the enforceability of Islamic financial contracts and a credible
and reliable forum for settlement of legal disputes arising from Islamic finance transactions.
The panel acknowledged that there are several challenges faced by the Islamic finance
industry including lack of standardised documentation, different school of thoughts and
therefore different interpretations of various Shari’ah compliance-related matters and a lack
of legal expertise in both Islamic and conventional finance. In respect of the legal
challenges, there are various initiatives underway to develop the people resources in various
jurisdictions active in Islamic finance sector such as Malaysia, with measures being taken to
ensure that players within the industry including judges and lawyers are trained in Islamic
finance. International standard setting bodies such as Accounting and Auditing Organisation
for Islamic Financial Institutions (AAOIFI) and Islamic Financial Services Board (IFSB) are
working on standardisation issues and already have made some progress. In recent years a
number of Islamic finance cases have been brought to court for settlement in different
jurisdictions including and beyond Muslim majority countries. The panel examined the
recent Islamic finance transactions disputes such as the one between Investment Dar and
Blom Bank and also looked at the key legal issues in such disputes, particularly transaction
structuring and documentation.
Cross-Border Transactions
The third session, ‘Contemporary Shari’ah Discourse in Cross-Border Transactions’ was
moderated by Dr Asyraf Wajdi Dusuki, head of research affairs at ISRA. The panel looked
at some of the practical issues in striking a balance between Shari’ah compliance and
national legal and regulatory requirements. For example, Shari’ah scholars sometimes allow
certain transactions, questionable under Shari’ah law, on the basis of necessity and public
good, but it was pointed out that these should not become the norm. The panel also pointed
out, using sovereign sukuk as an example, that sukuk holders may not have access to the
underlying asset in the case of sukuk default for reasons of national security among others.
The panel also discussed the way Shari’ah compliance frameworks have evolved in various
jurisdictions over time.
Dispute Resolution
The final session, ‘Alternative Dispute Resolution Mechanisms in Islamic Finance: Do We
Need to Have an International Convention to Govern Cross-Border Islamic Finance
Transactions?’ was moderated by Dr Mohamad Akram Laldin. Alternative Dispute
Resolution (ADR) may be defined as a range of procedures that serve as alternatives to
litigation through the courts for the resolution of disputes, generally involving the
intersession and assistance of a neutral and impartial third party. The word alternative has
generally been understood to refer to the alternatives to litigation. There are, however,
various forms of ADR mechanisms, which include arbitration and mediation. Arbitration
(tahkim) is the private, judicial determination of a dispute, by an independent third party.
Mediation (sulh) is a process in which an impartial third party known as a mediator assists
parties involved in a dispute to resolve their differences in an amicable manner. Arbitration
(“tahkim”) and mediation (“sulh”) are recognised under the Shari’ah. The advantages of
both arbitration and mediation are that the parties have a full say over the final result. They
can participate in the process; decide on the outcome and work together, not against each
other; can maintain, restore or rebuild their relationship and enjoy substantial savings in
terms of money and time. ADR approaches are more efficient, private and more flexible for
both parties as compared to litigation. The panel highlighted that the aim of Shari’ah-
compliant arbitration is to have disputes resolved in accordance with Shari’ah principles.
The outcome, however, still needs to be enforceable in the secular courts and therefore the
arbitration process should be carried out in a way that will not result in the secular courts
refusing to enforce any agreement reached. Arbitrators or other persons involved in
arbitration procedures also need to have some familiarity with financial, commercial and
legal issues and not just the Shari’ah. The panel looked at the various alternative dispute
resolution mechanisms that are being practiced in the market; how these have evolved over
time and the enforceability issues. They also deliberated the use of these dispute resolution
arrangements as they apply to Islamic finance transactions.

Illustrastion By Timur Abimanyu, SH.MH


Principles of sharia is Islamic financial contracts, which all Islamic financial transactions
have legal clauses governing. As the Shari'a is a non-national system of law, and subject to
various interpretations, in order to create certainty about the rights and obligations of
contracting parties, English law is usually chosen as the laws governing the cross-border
Islamic financial transactions. There are a number of cases heard in court commercial
litigation involving commercial contracts of Islamic finance, where issues of law governing
the contract are under supervision. From the argument default party in this transaction, it
became clear that there is a space through tactics shopping opinion among scholars and
unfortunately a lot of potential for the invalidity arguments sharia to be used by the borrower
default to avoid their responsibilities under a commercial agreement, the dispute recently
and in analysis and implied from the court's decision and discussed the structure of
developing shari'a compliance and alternative dispute settlement mechanisms, and whether
there is a need for an international convention to regulate cross-border Islamic financial
transactions.
==================================
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