Islamic Banking Resistance to Securization

Moslem Banking Resistance to Securization Moslem gentleABSTRACTReceivables securitization is a full of life pecuniary instrument which has faced whatsoever vindication in the Moslem initiation with the justion of Malaysia with the result that its office in Moslem pay is as yet down the stairs real. The primer coats so-and-so this fortress argon comparatively ambiguous, and con incliner non been thoroughly explored, as the b put on the line Moslem universalations offers exclusively touches on the report on a superficial aim. This watch traces the root of the c erstrns of Moslem academics, decipherables them up to thorough intelligence and proposes an documentary style forward. charm this athletic field identifies three justifications behind the Muslim resistance to imputables securitization that partake to rewrite m adepty, gharar ( hazard), and usury, it could be argued that the signalize issue driving these objections is a misappropriatio n of the Muslim rules g ein truthplacening gold and silver to fiat property. T here(predicate) is, however, a strong basis for arguing that fiat specie is merely a legal commodity and should be regulated by the Moslem commodity rules, removing the obstacle to the use of due securitization.Concerns inclinationing gharar (risk) and interest be valid and depose be safely managed by exploitation an ethics-based mixture of securitization that cling tos against such(prenominal)(prenominal) risks as frolic or inability to deliver. In annexition, securitization transactions could be social structured on usury-free models.Fin totallyy, an attention should be draw to the methodology use by Moslem intellectuals to apply Moslem rules to modern-day theorys. Methodologies assume to be re-examined to ensure that they atomic number 18 true to the spirit of Muslim teaching.Introduction enchantment it is remedy a relatively new judgment, securitization has force a vit al and in effect(p) instrument for aggrandizement gunstocks, boosting fluidness, managing risk and allocating chapiter efficiently. Neverthe slight, in a world where consumption has become a style of life and gambling has been raised to the emplacement of a profession or an art form, securitization poses a silent exactly actually threat to economies.The fountainhead has been raised as to whether or non securitization has played a social function in the new- shuffle fiscal crisis.1 It is argued that securitization encourages excessive borrowing, limits oersight by lenders and encourages dependency by borrowers, as well as creating what some(prenominal) call the delusion of liquidity.2 Undoubtedly, the provision of imparts and securitization facilitates the realization of individuals goals and creates enthronement opportunities. unless due to the sensitivity of these peckerwoods, a condition and honorable environment is needed in tack to protect against their m isuse. This is, according to Hugo Bouleau, what is offered by the principles of Moslem pay3 indeed, Islam caters a comprehensive honest focal render in time of life including calling and investment.Muslim fiscal system solidly golf links mingled with real pluss, profits and risks. A monetary transaction which does non provide these linkages whitethorn fail in the sharia ossification test. However, assessing compliance is non forever as unsophisticated as it whitethorn appear. dapple the foundations of the Muslim fiscal system were laid centuries ago, there atomic number 18 still divergences in assimilator views concerning details, which has created serious challenges and generated debate in wrong of identifying and ground the gaps in applying the foundations of Islamic shariah fair play on the modern-day concepts. This has slowed the deal of formulating a definite Islamic restrictive modelling for pecuniary industry specially in a purely seat of govern mentist world.As one the more or less debatable issues to a lower place Islamic right this charter focuses on the Islamic regulatory framework of due securitization which is acknowledged by shariah scholars and Islamic pay masters as real important instrument, save at the similar time as a critical and sensitive field.The framework of shariah law tame due securitization is not yet firmly constituted due to the novelty of m whatsoever stinting and financial concepts, the lack of the shariah law scholars consensus on understanding and reconciling contemporary aspects, and, arguably, the expanded application of sadd al-dharai overture which, chiefly, hatchs banning any allowable activity if it powerfulness go along to spinnable result, contrary to the shariah maxim the norm in regards transactions is that of permissibility which evidently think ups that, any transaction, in principal, is permissible until a contradiction in bourns to Shariah is proven. This dilemma has inclined rise to devil major directions of inclination with regard to an Islamic locating on due securitization one is originated in Malaysia and the early(a), generally speaking, representing the rest of the Islamic world.As a result of these incidentors, due securitization is less create in Islamic financial markets than in the customary. In accompaniment, individuals or foundations who seek to agree with Shariah rules chiffonier find themselves lost in a tangle of contradicting views and fatwas (considered opinions of Shariah scholars). In response to this reality, this study provides an uninflected examination of the status of Shariah gentle receivable securitization for the sake of identifying the root of the gaps and challenges. After all, it is not a study specializing in Shariah tho an academic and victor tracing, using a simple problem resoluteness technique, of the realistic causes behind ambitious receivable securitization under Islamic law. It is a vital sh come show up for a clear understanding of the problem toward proposing a rational behavior forward.The study addresses these issues in three chapters. Chapter One, An introductory platform, establishes the import of the explore topic, canvasss the live oning lit and demonstrates the value added by this study. Chapter Two, General ground and appoint primal concepts, provides an insane asylum to the concepts of receivable securitization as well as the Islamic financial system in enounce to assist the endorser in inviting with the ideas presented. Chapter Three, the Islamic regulatory framework for receivable securitization, provides a conceptual introduction to Shariah compliant securitization, and examines the roots of causes that behind challenging of the receivables securitization under Islamic law, where Chapter Four, Proposal for a way forward, provides a globular proposal for encompass an ethical and disciplined Islamic compliant receivable s securitization.Finally, the ratiocination summarizes the overall inputs and outputs of the study including its question and results.Chapter One AN INTRODUCTORY PLATFORM 1.1 wherefore it mattersGlobalization is inescapable. The faiths, cultures and nations of the world argon being gathered together into a single parsimony and trade pool. condescension the diversity of identities, economies atomic number 18 compelled to endure around the globular table. At the end, the wisest strategy for any ideological convention is to find a way to accommodate foreign growths spot remain true to its principles and convictions.Islam is the abet largest religion of the world, with its followers estimated at 21% of the worlds population.4 Muslim communities in historically non Muslim countries are growing rapidly. For instance, a 2001 numerate in the UK indicated a population of 1.591 million Muslims5. Although the next census leave behind be in 2011, Richard Kerbaji reported that the growth of Muslim population is 10 times fleet than that of other communities inwardly the UK.6Independent of radical rationalizes, the deduction of Islam as a major world religion and the impact of Muslims as a residential district within the planetary context tolerate made Islamic considerations a top priority on political and economic agendas within the world-wide arena. Likewise, the orbiculate Muslim community cannot spread to be passive hardly must rationally and objectively utilize with orbicular changes and challenges. In a lecture given in 1993, H.R.H. the Prince of Wales stressed the fact that The Islamic and horse opera world can no longer afford to stand asunder from a general parturiency to solve their common problems We have to overlap experiences, to explain ourselves to each other.7This is, indeed, the reality of where we find ourselves today. And turn interaction betwixt civilizations and national and international factors is unavoidable, fund amental beliefs and inviolable principles allow continue to come through which must be understood and respected.From pay perspective, enchantment exact s are not available, broad agreement does exist that the size of the riches and pluss and the wide range of business networks of Muslims, both in Islamic countries and in the rest of the world, is significant. The demand for financial services which postdate with Islamic law can be expected to increase tremendously, peculiarly following the late(a) global recession. It is estimated that there result be active 15 20 % annual growth in the Islamic financial products, with equity fund assets climbing to US $53 billion by 2010.8It is clear that a direct correlation exists whenever the demand for banking products increases, banking debts multiply. This heightens ascribe risk and threatens the availability of pileus and liquidity. Basel II, which represents the international consensus on capital standards, embraces securitizat ion as an effective and helpful tool in this regard.9 However, unless Muslim intellectuals invest considerable postcode in development clear and reliable regulatory frameworks which comply with Islamic law for the young concepts including securitization, Islamic banks will continue to experience difficulties in the areas of liquidity and risk management, and will fail to tinge the requirements for international convergence.From other angle, the recent global economic crisis has exposed the fragility of capitalist economics. check to Sam Whimster capitalism itself is without worshipThe finance capitalism of today has some startlingly irrational features and is no longer led by those who possess the requisite moral righteousness.10 As the need for much(prenominal) disciplined and ethical systems becomes increasingly apparent, the electromotive force of Islamic finance as an alternative to conventional finance is gaining attention. As a result, broader awareness is developi ng in the international community regarding the features of Islamic finance and securitization. Toby Birch comments that the Islamic principles constituted by a desert-dwelling Bedouin four-spotteen speed of light socio-economic classs ago confirm the timeless wiseness which holds the strike to the financial crises of today.11The recognition of the advantages of Islamic financial systems on objective and professional terms by non Muslim experts places a serious province on Muslims experts and researchers to address and resolve the internal challenges which rate of flowly impede the development of Shariah compliant products, including receivable securitization.1.2 Literature reviewIt could be tell that a wealth of studies on Islamic finance can be found in libraries and on the online resources. In addition, Arabic and English writings typically have umteen publications on securitization within its conventional finger. However, studies management particularally on Shari ah compliant receivable securitization, and its fundamental challenges, are, noticeably few.The works which have, in fact, played the greatest persona in fictile the preponderating Islamic view on receivable securitization, are the many a(prenominal) working text file that have been submitted at Islamic scholarly forums and conferences, especially the annual conferences of the global Islamic Fiqh academy, and the Islamic Fiqh academy of Muslim man League. For instance, at its 19th conference in April 2009, the internationalistic Islamic Fiqh honorary society discussed a base of working papers specifically focussing on, or closely related to, receivable securitization. However, by and large, the structures and flak of the papers were close like, which is to be expected as the authors shared the corresponding perspective on the same issue.In terms of its significance, securitization represents one of the more or less important innovations in the finance sector. It is , as Leon Kendall puts it, changing the face of American and world of finance.12 This view is shared by many experts in the field, who see securitization as an essential component of the modern financial system. Vinod Kothari makes an identical statement to that of Kendall, and suggests that securitization is more than funding instrument that works beyond financial limitations.13 This admiration for securitization can be attri exclusivelyed to the advantages which, according to Charles Ston and Anne Zissu, provides in alleviating sense of balance rag week pressure,14 ecstasyring and fragmentizing reference risk, raising capital and securing liquidity.The importance of securitization is recognized by Islamic Intellectuals. AbdulBari Mushaal points out that receivable securitization is an important instrument in that it provides lenders rapid relapse on their capital in disposition to re-inject it into investment and production operations.15 Fuad Muhaisen identifies social club advantages provided by securitization, including its image in funding and support privatization projects.16 Furthermore, the working papers mentioned above which were submitted at the 19th conference of International Islamic Fiqh honorary society demonstrate a common acknowledgment of the importance of receivable securitization in the Islamic world.Despite the worldwide recognition of the importance of securitization, another side of it could be recognized. Lawis Ranieri describes securitization as an adventure that involves a dark side, observing that it has contributed to destabilizing the thrift system and industry.17 This represents one factor in the argument that securitization has been a change factor in the global honorable mention crash. Thrift and attribute are connected while they are also key components in the greater economic system. Securitization arguably promotes excessive assent creation,18 encourages a culture of consumerism, and has contributed to the globa l financial crisis. Niall Ferguson argues that the crisis was cause by the rise and fall of securitized imparts.19 While this assertion deserves consideration, it is thinkable that it was not securitization but the absence of the ethics that rationalize its use, which was the problem.Islamic finance principles offer a framework with the capacity to fill this void. In his nurse Islamic finance Standards Solving the Global Financial Crisis, Samir Kantaji provides a serviceable analysis of the global crisis and suggests that Islamic principles of finance provide the ethical and disciplined environment indispensable to prevent such a future financial crash.20While the principles of Islamic finance were established more than fourteen hundred years ago, they do offer, as implied by Hugo Bouleau, solutions to todays banking problems.21 The question, however, is whether Shariah scholars have the tractableness to apply these principles meaningfully to contemporary financial concepts, in general, and to securitization, in particular.The dominant philosophy of Shariah scholars is sadd al-dharai (banning any permissible activity if it might lead to an impressible result). This progression has been stressed by the International Islamic Fiqh honorary society in its final result No. 92 (9/9), issued in April 1995.22 However, many Islamic intellectuals oppose broaden the application of sadd al-dharai. Akhtar Zaiti emphasizes the contrasting Shariah maxim, the norm in regards transactions in that of permissibility, and the fact that the financial principles, maxims and frameworks provided by the volume and hadith are not detailed because the finance industry and human interests part over time. She argues that Muslims should be guided by this principle of permissibility as they engage with evolving financial concepts, including securitization, except in cases which present an obvious contradiction with the Quran and Sunna.23Similarly, Fuad Muhaisen argues that Islam clearly identifies which activities are prohibited, leaving room for innovation and development over the course of time, and that this is how contemporary financial concepts should be climaxed.24 Regardless of the argument, what is certain is that the convictions of some Shariah scholars, united with the rapid development of finance and economic concepts and the impossibleness of accurately foreseeing all of their potential implications, impede the development of Islamic financial systems.Studies addressing Shariah compliant receivable securitization typically roam around evasion of Riba (usury) and Gharar (Risk), issues which are subdivided into more focused points such as profit-risk share, tangible asset connection and other primal sub-issues. However, sales events agreement of loan is considered the buttocks of employing receivable securitization, and is the subject of alert debate by Islamic intellectuals.Sale of loan was a topic of discussion at the 1998 International Islamic Fiqh Academy conference. The conference conclude that the sale of loan to a third society, whether at a new or deferred price, is strictly prohibited in Islam because it leads to Riba (usury).25 alone at its 2006 conference, International Islamic Fiqh Academy demonstrated greater flexibility and determined four permissible models for sale of Loan,26 A similar block was issued by Islamic Fiqh Academy of MWL at its 2002 conference stating that some sale of loan models are prohibited because they lead to riba (usury) or Gharar (risk) of the inability of speech, accordingly, receivable securitization is prohibited.27 It should be discover that loan in Islam could be effectuals, services, usufructs or receivables ( silver flow), but none of the mentioned resolutions accepted the sale or securitization of receivables.There is no consensus regarding the forbidding of sale of loan. For example, in his book The theory of loan in Islamic fiqh Ahmed Al-Hajj discusses the dif ferent viewpoints supporting and opposing sale of loan and concludes that it is permissible provided that delivery of the sale (repayment of the loan) is not possible28. This approach has been embraced by the Malaysian Securities Commission Shariah Advisory Council since 1996 which opened the door wide to receivable securitization in this Islamic country29, which is, according to Rashid Al-Khan, has been wide criticized by many Middle Eastern scholars.30 Furthermore, Saiful Rosly and Mahmood Sanusi point out that trading of Islamic bond structured on a sale of loan basis in Malaysia has been found impermissible by the majority of Shariah scholars.31Apparently, there is a clear disagreement over the key issues concern in achieving effective Shariah compliant receivable securitization. However, this does not mean that Shariah compliant receivable securitization cannot be utilize until the dilemma is resolved. Nor does it mean that the current position of Shariah scholars is final . The possibility unendingly exists of renegotiating the interfaces that are developed between Shariah and developing technical concepts.The literature already includes a number of publications which discuss the foundational concepts of Islamic finance and blast to develop an Islamic framework for securitization which brings together Islamic principles and finance innovation. But gaps remain in terms of scope and approaches of studies. To put differently, the quick Islamic literature offers still a superficial and indirect exploration of the reasons for which the permissibility of receivable securitization has been challenged under Islamic law, and handles this discussion within previous immature viewpoints.1.3 mountain chain and significance of the studyThis study provides a panoramic view of the current situation of receivable securitization within the Islamic law. It discusses the dominant Islamic intellectuals approach that banes it, and tackles the question of what are the realistic reasons of challenging receivables securitization under Islamic law.In order to add value, this study is a digging deeper into the roots of the argument. victimization a simple problem solving techniques, it traces those roots to out what is, precisely, reason behind the resistance of Shariah scholar to accepting receivables securitization. Differently, this study openly discusses the issues, and it is completely strengthened of the maxim that in principal, any transaction is permissible until a contradiction to Shariah is proven. Furthermore, the study reflects rational viewpoint regarding riba (usury) concept which has been unreasonably over say over the time.Notwithstanding, this study must not be read as a revolt against any of the Islamic schools of thought or organizations, but an objective attempt to re-pull the attention to realistic causes of prohibition of receivables securitization under Islamic law.Overall, this study helps to identify areas where religious perspectives and technical utilization do not yet interface with regard to receivable securitization, and spells out the reforms needed to the approach of Islamic intellectuals methodology in terms of Islamic financing in general and securitization in particular.Chapter Two General screen background and Key central excogitations 2.1 IntroductionIn order to understand the roots of the challenges of Islamic compliant receivable securitization, this chapter highlights key aspects of securitization as created and developed by the conventional finance industry and, on the other hand, the related key aspects of Shariah and Islamic finance.2.2 An introduction to Securitization 2.2.1 Origin of SecuritizationWhile Vinod Kothari states that securitization has a two hundred year history in Denmark and suggests that therefore Denmark should be considered its birthplace, he admits the fact that securitization as a structured finance instrument was developed in the US.32 Indeed, credit for th e innovation of securitization is due the US government which initiated the setoff mortgage-backed securitization transaction by dint of the Government National Mortgage Association (GNMA) in 1970.33The introduction of securitization was promoted by a severe shortage of liquidity which caused by a withdrawal method of traditional lenders who turned to more profitable investments.34 However, the light of securitization as a magic wand that could make fund and liquidity problems disappear, together with a credit crush, dramatically expanded the usage of securitization. In the years since, protracted experience and lessons have been, and are being, learned in tailoring and structuring securitization transactions.2.2.2 Concept of SecuritizationLittle documentation exists regarding the origin of the term securitization. Lewis Ranieri claimed that this term was not a real word, and it was used for the first time by the Wall passageway Journal in 1977.35 As an emerging concept, theref ore, securitization does not yet have a universally accepted comment. According to Leon Kendall, securitization is a subroutine of incase individual loans and other debt instruments, win overing the package into a security measure or securities, and enhancing their credit status or evaluation to tho their sale to third-party investors.36 While this definition describes the parade of securitization, Peter Jeffrey focuses on the objective of securitization and suggests that in its simplest form it is a secured borrowing, whereby a company borrows against an asset or group of assets.37 This is exactly what was cerebrate by a United Kingdom bathing tub Duties Tribunal in Capital One Bank (Europe) Plc v taxation and Customs 2005 when it stated that securitization is nothing more than a sophisticated heart and soul of borrowing money.38From a different angle, Vinod Kothary called attention to the philosophy of securitization and pointed out that it is in its widest sense is e very attend to that converts financial relation into a transaction. However, he specify the term asset securitization as a fraud of structured financing in which an entity seeks to pool together its interest in identifiable hard currency flows over time, transfer the same to investors either with or without the support of further substantiatives, and thereby achieve the purpose of financing.39 Securitization can be also delimitate as The transformation of a loan portfolio or other assets such as property into securities that can be exchange in the primary(a) market and traded in the secondary market.40 some other definition that is ascribed to Ernst and fresh states that securitization isAny transaction under which a securitization fomite flat or indirectly acquires receivables or bears risk associated with commitments taken or activities carried out by third parties and issues in exchange securities whose sink is directly linked to the risks borne.41While clearly many d efinitions exist for the terms securitization and asset securitization42 which describe them in either the simplest or broadest terms and approach the concept from various perspectives, all concur that securitization is a forge of packaging and transforming a specific people of assets through a special purpose vehicle(s) into sellable securities for the purpose of liquidity and/or risk management.A key point to be address here is that the term asset securitization is commonly used to describe the process of securitizing financial claims or receivables, notwithstanding the fact that balance sheets include other types of assets that can be subject to securitization, particularly under Islamic law (i.e. lease structure). In this context, the verb securitize, according to the Concise Oxford vocabulary intend to convert an asset, specially a loan, into marketable securities, typically for the purpose of raising cash.43 This confirms the fact that other assets can be securitized but accounts receivable and loans are the some(prenominal) common type of securitizable assets, perhaps because they constitute the raft of the assets of financial firms and credit institutions.2.2.3 Structure of and Parties to Receivable SecuritizationReceivable securitization can be structured on a typical funded, synthetic or collateralized debt province (CDO) structure.44 However, in order to avoid dispersion and thickeningity the focus here will be on the typical funded structure.A typical funded structure of receivables securitization (see 1) basically involves borrowers, an originator, an issuer and investors. These form the backbone of a typical funded securitization structure nevertheless, a credit enhancer, rating agency and an insurance underwriter/lead manager are also considered key players for the sake of regulatory compliance and in order to introduce an attractive opportunity for the targeted investors.Borrowers Given that receivable securitization is a process tha t deals with loans borrowers are considered the cornerstone of a securitization transaction. As they are responsible for remunerative the underlying loans, structuring a receivable securitization must take into account their credit capability. Some regulatory frameworks may require their consent.Originator In receivable securitization, lenders or creditors are normally the originators of a securitization transaction. The originator can be a governmental agency or any financial, credit or investment institution such as a commercial bank, investment bank or captive finance company.The routine of the originator does not start only at the point of the agreement with the SPV, but begins earlier,45 specifically, from the importation that the originator recognizes the need for, or the feasibility of, securitizing a bulk of receivables. The stock process includes many steps involving, but not limited to, grooming and structuring the securitization transaction, identifying and segregati ng the assets, notifying the borrowers, establishing the SPV(s), concluding the computer address and services agreements and handling any mediation activities between the borrowers and the SPV.Furthermore, the originator might continue to play the role of servicer, providing, among other services, node services, payment and accrual services as well as slackness management and collateral liquidation.46An issuer The key point of the securitization process is the event of the securities that resulted from pooling and transforming the assets. This issuance is usually performed by an SPV, which is normally a new and independent entity established for the purpose of taking over the position of the originator as a lender or creditor in the credit alliance. In other words, once a securitization takes place, borrowers no longer have a credit relationship with the originator, but sooner with the SPV.A rating agency For a productive securitization, a good rating of the credit prime(a) of the transaction should be secured from a very well-established rating agency. Professional rating agencies usually provide a professional evaluation of the type and quality of the underlying assets, including any related risks.47 character reference enhancer Credit enhancement is a very important process for attracting investors to be involved in a securitization transaction. It provides them with a certain level of protection in the event that the originator fails to meet his commitments or the cash flows for the securitized assets are insufficient to cover the projected return of the securities.Another point, which will be discussed further below, is that credit enhancement can be secured internally through undertakes provided by the originator or on the basis of the quality of the securitized assets. Having noted that, a credit enhancer appears as a party in a securitization structure only if the credit enhancement is provided by a third party enhancer (i.e. by a garner of credit). In such a case, the enhancer must have a high credit rating in order to secure the pledge of the investors.Underwriter / lead manager The offering of the issued securities public or to confidential investors is usually handled by a professional firm, typically, a bank which plays the role of underwriter in the securitization process. The key role of the underwriter is to manage the process of selling the securities to investors in order to achieve the securitizations targets. It should be noted that the trend among financial professionals today is to call this party a lead manager, quite an than an underwriter, because the guarantee provided is, in principal, a commitment to make every effort to ensure that the securities are sold. There is, however, no guarantee in terms of the prices and quantity of the securities sold.48Investors The ultimate objective of the securitization process is to transfer risk to investors and/or to generate liquidity from them. A securitizati on transaction may target specific kinds of investors through a private placement process or open it to the public. In both cases, the key investors are usually fund managers, tribute funds, governmental funds, commercial banks and insurance companies.492.2.4 Process of SecuritizationIt goes without byword that the securitization process involves detailed, complex and overlapping steps. In this paper, however, the focus is on the key steps which have strong significance in terms of the research objectives, namely, the packaging and transferring of the underlying receivables as well as the issuance of securities.2.2.4.1 encase the Underlying ReceivablesThe most vital step in a securitization transaction is packaging the underlying assets. This begins with identifying the targeted receivables, which may include any assets that generate cash flows over a period of time, such as mortgages, credit separate loans, consumers loans, corporate loans, railway car loans, sIslamic Banking R esistance to SecurizationIslamic Banking Resistance to SecurizationIslamic CompliantABSTRACTReceivables securitization is a vital financial instrument which has faced some resistance in the Islamic world with the exception of Malaysia with the result that its role in Islamic finance is as yet underdeveloped. The reasons behind this resistance are relatively ambiguous, and have not been thoroughly explored, as the existing Islamic literature offers only touches on the topic on a superficial level. This study traces the roots of the concerns of Islamic academics, opens them up to thorough discussion and proposes an objective way forward.While this study identifies three justifications behind the Islamic resistance to receivables securitization that relate to fiat money, gharar (risk), and usury, it could be argued that the key issue driving these objections is a misapplication of the Islamic rules governing gold and silver to fiat money. There is, however, a strong basis for arguing that fiat money is merely a legal commodity and should be regulated by the Islamic commodity rules, removing the obstacle to the use of receivable securitization.Concerns regarding gharar (risk) and interest are valid but can be safely managed by developing an ethics-based form of securitization that protects against such risks as gambling or inability to deliver. In addition, securitization transactions could be structured on usury-free models.Finally, an attention should be drawn to the methodology used by Islamic intellectuals to apply Islamic rules to contemporary concepts. Methodologies need to be re-examined to ensure that they are true to the spirit of Islamic teaching.IntroductionWhile it is still a relatively new concept, securitization has become a vital and effective instrument for raising funds, boosting liquidity, managing risk and allocating capital efficiently. Nevertheless, in a world where consumption has become a way of life and gambling has been raised to the sta tus of a profession or an art form, securitization poses a silent but real threat to economies.The question has been raised as to whether or not securitization has played a role in the recent financial crisis.1 It is argued that securitization encourages excessive borrowing, limits oversight by lenders and encourages dependence by borrowers, as well as creating what some call the illusion of liquidity.2 Undoubtedly, the provision of loans and securitization facilitates the realization of individuals goals and creates investment opportunities. But due to the sensitivity of these tools, a disciplined and ethical environment is needed in order to protect against their misuse. This is, according to Hugo Bouleau, what is offered by the principles of Islamic finance3 indeed, Islam provides a comprehensive ethical way of life including commerce and investment.Islamic financial system solidly links between real assets, profits and risks. A financial transaction which does not provide these linkages may fail in the Shariah compliance test. However, assessing compliance is not always as simple as it may appear. While the foundations of the Islamic financial system were laid centuries ago, there are still divergences in scholar views concerning details, which has created serious challenges and generated debate in terms of identifying and understanding the gaps in applying the foundations of Islamic Shariah on the contemporary concepts. This has slowed the process of formulating a definite Islamic regulatory framework for financial industry particularly in a purely capitalist world.As one the most debatable issues under Islamic law this study focuses on the Islamic regulatory framework of receivable securitization which is acknowledged by Shariah scholars and Islamic finance professionals as very important instrument, but at the same time as a critical and sensitive field.The framework of Shariah compliant receivable securitization is not yet firmly established due to the novelty of many economic and financial concepts, the lack of the Shariah scholars consensus on understanding and accommodating contemporary aspects, and, arguably, the expanded application of sadd al-dharai approach which, generally, means banning any permissible activity if it might lead to impressible result, contrary to the Shariah maxim the norm in regards transactions is that of permissibility which simply means that, any transaction, in principal, is permissible until a contradiction to Shariah is proven. This dilemma has given rise to two major directions of thought with regard to an Islamic perspective on receivable securitization one is originated in Malaysia and the other, generally speaking, representing the rest of the Islamic world.As a result of these factors, receivable securitization is less developed in Islamic financial markets than in the conventional. In fact, individuals or institutions who seek to comply with Shariah rules can find themselves lost in a maze of contradicting views and fatwas (considered opinions of Shariah scholars). In response to this reality, this study provides an analytical examination of the status of Shariah compliant receivable securitization for the sake of identifying the roots of the gaps and challenges. After all, it is not a study specializing in Shariah but an academic and professional tracing, using a simple problem solving technique, of the realistic causes behind challenging receivable securitization under Islamic law. It is a vital step for a clear understanding of the problem toward proposing a rational way forward.The study addresses these issues in three chapters. Chapter One, An introductory platform, establishes the significance of the research topic, reviews the existing literature and demonstrates the value added by this study. Chapter Two, General Background and key underlying concepts, provides an introduction to the concepts of receivable securitization as well as the Islamic financial system i n order to assist the reader in engaging with the ideas presented. Chapter Three, the Islamic regulatory framework for receivable securitization, provides a conceptual introduction to Shariah compliant securitization, and examines the roots of causes that behind challenging of the receivables securitization under Islamic law, where Chapter Four, Proposal for a way forward, provides a global proposal for embracing an ethical and disciplined Islamic compliant receivables securitization.Finally, the Conclusion summarizes the overall inputs and outputs of the study including its question and results.Chapter One AN INTRODUCTORY PLATFORM 1.1 Why it mattersGlobalization is inescapable. The faiths, cultures and nations of the world are being gathered together into a single economy and trade pool. Despite the diversity of identities, economies are compelled to meet around the global table. At the end, the wisest strategy for any ideological group is to find a way to accommodate international developments while remaining true to its principles and convictions.Islam is the second largest religion of the world, with its followers estimated at 21% of the worlds population.4 Muslim communities in historically non Muslim countries are growing rapidly. For instance, a 2001 census in the UK indicated a population of 1.591 million Muslims5. Although the next census will be in 2011, Richard Kerbaji reported that the growth of Muslim population is 10 times faster than that of other communities within the UK.6Independent of radical trends, the significance of Islam as a major world religion and the impact of Muslims as a community within the global context have made Islamic considerations a top priority on political and economic agendas within the international arena. Likewise, the global Muslim community cannot afford to be passive but must rationally and objectively engage with global changes and challenges. In a lecture given in 1993, H.R.H. the Prince of Wales stressed the fac t that The Islamic and Western world can no longer afford to stand apart from a common effort to solve their common problems We have to share experiences, to explain ourselves to each other.7This is, indeed, the reality of where we find ourselves today. And while interaction between civilizations and national and international factors is unavoidable, fundamental beliefs and inviolable principles will continue to exist which must be understood and respected.From finance perspective, while exact s are not available, broad agreement does exist that the size of the wealth and assets and the wide range of business networks of Muslims, both in Islamic countries and in the rest of the world, is significant. The demand for financial services which comply with Islamic law can be expected to increase tremendously, particularly following the recent global recession. It is estimated that there will be about 15 20 % annual growth in the Islamic financial products, with equity fund assets climb ing to US $53 billion by 2010.8It is clear that a direct correlation exists whenever the demand for banking products increases, banking debts multiply. This heightens credit risk and threatens the availability of capital and liquidity. Basel II, which represents the international consensus on capital standards, embraces securitization as an effective and helpful tool in this regard.9 However, unless Muslim intellectuals invest considerable energy in developing clear and reliable regulatory frameworks which comply with Islamic law for the newborn concepts including securitization, Islamic banks will continue to experience difficulties in the areas of liquidity and risk management, and will fail to meet the requirements for international convergence.From another angle, the recent global economic crisis has exposed the fragility of capitalist economics. According to Sam Whimster capitalism itself is without moralityThe finance capitalism of today has some startlingly irrational feature s and is no longer led by those who possess the requisite moral probity.10 As the need for more disciplined and ethical systems becomes increasingly apparent, the potential of Islamic finance as an alternative to conventional finance is gaining attention. As a result, broader awareness is developing in the international community regarding the features of Islamic finance and securitization. Toby Birch comments that the Islamic principles established by a desert-dwelling Bedouin fourteen hundred years ago embody the timeless wisdom which holds the key to the financial crises of today.11The recognition of the advantages of Islamic financial systems on objective and professional terms by non Muslim experts places a serious responsibility on Muslims experts and researchers to address and resolve the internal challenges which before long impede the development of Shariah compliant products, including receivable securitization.1.2 Literature reviewIt could be stated that a wealth of stud ies on Islamic finance can be found in libraries and on the online resources. In addition, Arabic and English literature typically have many publications on securitization within its conventional sense. However, studies focussing specifically on Shariah compliant receivable securitization, and its underlying challenges, are, noticeably few.The works which have, in fact, played the greatest role in shaping the dominant Islamic view on receivable securitization, are the many working papers that have been submitted at Islamic scholarly forums and conferences, particularly the annual conferences of the International Islamic Fiqh Academy, and the Islamic Fiqh Academy of Muslim World League. For instance, at its 19th conference in April 2009, the International Islamic Fiqh Academy discussed a group of working papers specifically focussing on, or closely related to, receivable securitization. However, by and large, the structures and approach of the papers were virtually identical, which i s to be expected as the authors shared the same perspective on the same issue.In terms of its significance, securitization represents one of the most important innovations in the finance sector. It is, as Leon Kendall puts it, changing the face of American and world of finance.12 This view is shared by many experts in the field, who see securitization as an essential component of the modern financial system. Vinod Kothari makes an identical statement to that of Kendall, and suggests that securitization is more than funding instrument that works beyond financial limitations.13 This admiration for securitization can be attributed to the advantages which, according to Charles Ston and Anne Zissu, provides in alleviating balance sheet pressure,14 transferring and fragmentizing credit risk, raising capital and securing liquidity.The importance of securitization is recognized by Islamic Intellectuals. AbdulBari Mushaal points out that receivable securitization is an important instrument i n that it provides lenders rapid turnaround on their capital in order to re-inject it into investment and production operations.15 Fuad Muhaisen identifies nine advantages provided by securitization, including its role in funding and financing privatization projects.16 Furthermore, the working papers mentioned above which were submitted at the 19th conference of International Islamic Fiqh Academy demonstrate a common acknowledgment of the importance of receivable securitization in the Islamic world.Despite the worldwide recognition of the importance of securitization, another side of it could be recognized. Lawis Ranieri describes securitization as an adventure that involves a dark side, observing that it has contributed to destabilizing the thrift system and industry.17 This represents one factor in the argument that securitization has been a contributing factor in the global credit crash. Thrift and credit are connected while they are also key components in the greater economic sy stem. Securitization arguably promotes excessive credit creation,18 encourages a culture of consumerism, and has contributed to the global financial crisis. Niall Ferguson argues that the crisis was caused by the rise and fall of securitized loans.19 While this assertion deserves consideration, it is possible that it was not securitization but the absence of the ethics that rationalize its use, which was the problem.Islamic finance principles offer a framework with the capacity to fill this void. In his book Islamic Finance Standards Solving the Global Financial Crisis, Samir Kantaji provides a practical analysis of the global crisis and suggests that Islamic principles of finance provide the ethical and disciplined environment necessary to prevent such a future financial crash.20While the principles of Islamic finance were established more than fourteen hundred years ago, they do offer, as implied by Hugo Bouleau, solutions to todays banking problems.21 The question, however, is wh ether Shariah scholars have the flexibility to apply these principles meaningfully to contemporary financial concepts, in general, and to securitization, in particular.The dominant philosophy of Shariah scholars is sadd al-dharai (banning any permissible activity if it might lead to an impressible result). This approach has been stressed by the International Islamic Fiqh Academy in its Resolution No. 92 (9/9), issued in April 1995.22 However, many Islamic intellectuals oppose broadening the application of sadd al-dharai. Akhtar Zaiti emphasizes the contrasting Shariah maxim, the norm in regards transactions in that of permissibility, and the fact that the financial principles, maxims and frameworks provided by the Quran and Sunnah are not detailed because the finance industry and human interests vary over time. She argues that Muslims should be guided by this principle of permissibility as they engage with evolving financial concepts, including securitization, except in cases which present an obvious contradiction with the Quran and Sunna.23Similarly, Fuad Muhaisen argues that Islam clearly identifies which activities are prohibited, leaving room for innovation and development over the course of time, and that this is how contemporary financial concepts should be approached.24 Regardless of the argument, what is certain is that the convictions of some Shariah scholars, coupled with the rapid development of finance and economic concepts and the impossibility of accurately foreseeing all of their potential implications, impede the development of Islamic financial systems.Studies addressing Shariah compliant receivable securitization typically roam around avoidance of Riba (usury) and Gharar (Risk), issues which are subdivided into more focused points such as profit-risk share, tangible asset connection and other underlying sub-issues. However, sale of loan is considered the cornerstone of employing receivable securitization, and is the subject of vigorous debate by Islamic intellectuals.Sale of loan was a topic of discussion at the 1998 International Islamic Fiqh Academy conference. The conference concluded that the sale of loan to a third party, whether at a current or deferred price, is strictly prohibited in Islam because it leads to Riba (usury).25 But at its 2006 conference, International Islamic Fiqh Academy demonstrated greater flexibility and determined four permissible models for sale of Loan,26 A similar resolution was issued by Islamic Fiqh Academy of MWL at its 2002 conference stating that some sale of loan models are prohibited because they lead to riba (usury) or Gharar (risk) of the inability of delivery, accordingly, receivable securitization is prohibited.27 It should be noticed that loan in Islam could be goods, services, usufructs or receivables (cash flow), but none of the mentioned resolutions accepted the sale or securitization of receivables.There is no consensus regarding the prohibition of sale of loan. For example , in his book The theory of loan in Islamic fiqh Ahmed Al-Hajj discusses the different viewpoints supporting and opposing sale of loan and concludes that it is permissible provided that delivery of the sale (repayment of the loan) is not possible28. This approach has been embraced by the Malaysian Securities Commission Shariah Advisory Council since 1996 which opened the door wide to receivable securitization in this Islamic country29, which is, according to Rashid Al-Khan, has been widely criticized by many Middle Eastern scholars.30 Furthermore, Saiful Rosly and Mahmood Sanusi point out that trading of Islamic bond structured on a sale of loan basis in Malaysia has been found impermissible by the majority of Shariah scholars.31Apparently, there is a clear disagreement over the key issues involved in achieving effective Shariah compliant receivable securitization. However, this does not mean that Shariah compliant receivable securitization cannot be utilized until the dilemma is re solved. Nor does it mean that the current position of Shariah scholars is final. The possibility always exists of renegotiating the interfaces that are developed between Shariah and developing technical concepts.The literature already includes a number of publications which discuss the foundational concepts of Islamic finance and attempt to develop an Islamic framework for securitization which brings together Islamic principles and finance innovation. But gaps remain in terms of scope and approaches of studies. To put differently, the existing Islamic literature offers only a superficial and indirect exploration of the reasons for which the permissibility of receivable securitization has been challenged under Islamic law, and handles this discussion within previous immature viewpoints.1.3 Scope and significance of the studyThis study provides a panoramic view of the current situation of receivable securitization within the Islamic law. It discusses the dominant Islamic intellectuals approach that banes it, and tackles the question of what are the realistic reasons of challenging receivables securitization under Islamic law.In order to add value, this study is a digging deeper into the roots of the argument. Using a simple problem solving techniques, it traces those roots to out what is, precisely, reason behind the resistance of Shariah scholar to accepting receivables securitization. Differently, this study openly discusses the issues, and it is completely built of the maxim that in principal, any transaction is permissible until a contradiction to Shariah is proven. Furthermore, the study reflects rational viewpoint regarding riba (usury) concept which has been unreasonably exaggerated over the time.Notwithstanding, this study must not be read as a revolt against any of the Islamic schools of thought or organizations, but an objective attempt to re-pull the attention to realistic causes of prohibition of receivables securitization under Islamic law.Overall, this study helps to identify areas where religious perspectives and technical practice do not yet interface with regard to receivable securitization, and spells out the reforms needed to the approach of Islamic intellectuals methodology in terms of Islamic financing in general and securitization in particular.Chapter Two General Background and Key Underlying Concepts 2.1 IntroductionIn order to understand the roots of the challenges of Islamic compliant receivable securitization, this chapter highlights key aspects of securitization as created and developed by the conventional finance industry and, on the other hand, the related key aspects of Shariah and Islamic finance.2.2 An introduction to Securitization 2.2.1 Origin of SecuritizationWhile Vinod Kothari states that securitization has a two hundred year history in Denmark and suggests that therefore Denmark should be considered its birthplace, he admits the fact that securitization as a structured finance instrument was developed in the US.32 Indeed, credit for the innovation of securitization is due the US government which initiated the first mortgage-backed securitization transaction through the Government National Mortgage Association (GNMA) in 1970.33The introduction of securitization was promoted by a severe shortage of liquidity which caused by a withdrawal of traditional lenders who turned to more profitable investments.34 However, the perception of securitization as a magic wand that could make fund and liquidity problems disappear, together with a credit crush, dramatically expanded the usage of securitization. In the years since, extensive experience and lessons have been, and are being, learned in tailoring and structuring securitization transactions.2.2.2 Concept of SecuritizationLittle documentation exists regarding the origin of the term securitization. Lewis Ranieri claimed that this term was not a real word, and it was used for the first time by the Wall street Journal in 1977.35 As an emerg ing concept, therefore, securitization does not yet have a universally accepted definition. According to Leon Kendall, securitization is a process of packaging individual loans and other debt instruments, converting the package into a security or securities, and enhancing their credit status or rating to further their sale to third-party investors.36 While this definition describes the process of securitization, Peter Jeffrey focuses on the objective of securitization and suggests that in its simplest form it is a secured borrowing, whereby a company borrows against an asset or group of assets.37 This is exactly what was concluded by a United Kingdom VAT Duties Tribunal in Capital One Bank (Europe) Plc v Revenue and Customs 2005 when it stated that securitization is nothing more than a sophisticated means of borrowing money.38From a different angle, Vinod Kothary called attention to the philosophy of securitization and pointed out that it is in its widest sense is every process tha t converts financial relation into a transaction. However, he defined the term asset securitization as a device of structured financing in which an entity seeks to pool together its interest in identifiable cash flows over time, transfer the same to investors either with or without the support of further collaterals, and thereby achieve the purpose of financing.39 Securitization can be also defined as The transformation of a loan portfolio or other assets such as property into securities that can be sold in the primary market and traded in the secondary market.40 Another definition that is ascribed to Ernst and Young states that securitization isAny transaction under which a securitization vehicle directly or indirectly acquires receivables or bears risk associated with commitments taken or activities carried out by third parties and issues in exchange securities whose return is directly linked to the risks borne.41While clearly many definitions exist for the terms securitization an d asset securitization42 which describe them in either the simplest or broadest terms and approach the concept from various perspectives, all concur that securitization is a process of packaging and transforming a specific bulk of assets through a special purpose vehicle(s) into marketable securities for the purpose of liquidity and/or risk management.A key point to be addressed here is that the term asset securitization is commonly used to describe the process of securitizing financial claims or receivables, notwithstanding the fact that balance sheets include other types of assets that can be subject to securitization, particularly under Islamic law (i.e. lease structure). In this context, the verb securitize, according to the Concise Oxford Dictionary means to convert an asset, specially a loan, into marketable securities, typically for the purpose of raising cash.43 This confirms the fact that other assets can be securitized but accounts receivable and loans are the most common type of securitizable assets, perhaps because they constitute the bulk of the assets of financial firms and credit institutions.2.2.3 Structure of and Parties to Receivable SecuritizationReceivable securitization can be structured on a typical funded, synthetic or collateralized debt obligation (CDO) structure.44 However, in order to avoid dispersion and complexity the focus here will be on the typical funded structure.A typical funded structure of receivables securitization (see 1) basically involves borrowers, an originator, an issuer and investors. These form the backbone of a typical funded securitization structure nevertheless, a credit enhancer, rating agency and an underwriter/lead manager are also considered key players for the sake of regulatory compliance and in order to introduce an attractive opportunity for the targeted investors.Borrowers Given that receivable securitization is a process that deals with loans borrowers are considered the cornerstone of a securitization transaction. As they are responsible for paying the underlying loans, structuring a receivable securitization must take into account their credit capability. Some regulatory frameworks may require their consent.Originator In receivable securitization, lenders or creditors are usually the originators of a securitization transaction. The originator can be a governmental agency or any financial, credit or investment institution such as a commercial bank, investment bank or captive finance company.The role of the originator does not start only at the point of the agreement with the SPV, but begins earlier,45 specifically, from the moment that the originator recognizes the need for, or the feasibility of, securitizing a bulk of receivables. The origination process includes many steps involving, but not limited to, planning and structuring the securitization transaction, identifying and segregating the assets, notifying the borrowers, establishing the SPV(s), concluding the consultation and services agreements and handling any mediation activities between the borrowers and the SPV.Furthermore, the originator might continue to play the role of servicer, providing, among other services, customer services, payment and collection services as well as default management and collateral liquidation.46An issuer The key point of the securitization process is the issuance of the securities that resulted from pooling and transforming the assets. This issuance is usually performed by an SPV, which is normally a new and independent entity established for the purpose of taking over the position of the originator as a lender or creditor in the credit relationship. In other words, once a securitization takes place, borrowers no longer have a credit relationship with the originator, but rather with the SPV.A rating agency For a successful securitization, a good rating of the credit quality of the transaction should be secured from a very well-established rating agency. Professional rating agencies usually provide a professional evaluation of the type and quality of the underlying assets, including any related risks.47Credit enhancer Credit enhancement is a very important process for attracting investors to be involved in a securitization transaction. It provides them with a certain level of protection in the event that the originator fails to meet his commitments or the cash flows for the securitized assets are insufficient to cover the projected return of the securities.Another point, which will be discussed further below, is that credit enhancement can be secured internally through guarantees provided by the originator or on the basis of the quality of the securitized assets. Having noted that, a credit enhancer appears as a party in a securitization structure only if the credit enhancement is provided by a third party enhancer (i.e. by a letter of credit). In such a case, the enhancer must have a high credit rating in order to secure the confidence of the i nvestors.Underwriter / lead manager The offering of the issued securities public or to private investors is usually handled by a professional firm, typically, a bank which plays the role of underwriter in the securitization process. The key role of the underwriter is to manage the process of selling the securities to investors in order to achieve the securitizations targets. It should be noted that the trend among financial professionals today is to call this party a lead manager, rather than an underwriter, because the guarantee provided is, in principal, a commitment to make every effort to ensure that the securities are sold. There is, however, no guarantee in terms of the prices and quantity of the securities sold.48Investors The ultimate objective of the securitization process is to transfer risk to investors and/or to generate liquidity from them. A securitization transaction may target specific kinds of investors through a private placement process or open it to the public. I n both cases, the key investors are usually fund managers, pension funds, governmental funds, commercial banks and insurance companies.492.2.4 Process of SecuritizationIt goes without saying that the securitization process involves detailed, complex and overlapping steps. In this paper, however, the focus is on the key steps which have strong significance in terms of the research objectives, namely, the packaging and transferring of the underlying receivables as well as the issuance of securities.2.2.4.1 Packaging the Underlying ReceivablesThe most vital step in a securitization transaction is packaging the underlying assets. This begins with identifying the targeted receivables, which may include any assets that generate cash flows over a period of time, such as mortgages, credit cards loans, consumers loans, corporate loans, auto loans, s