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The Regulation of Islamic Finance in the United Kingdom

Published online by Cambridge University Press:  13 December 2010

Jonathan Ercanbrack
Jonathan Ercanbrack
Affiliation:
Doctoral Student, School of Oriental and African Studies, University of London
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Abstract

This article examines the unique risks associated with Islamic financial institutions and the secular state's reticence to directly regulate their religious dimension. It argues that the state's method of regulating the Islamic financial industry ignores special reputational risks associated with the religious and cultural distinctiveness of Islamic banks.

Type
Comment
Information
Ecclesiastical Law Journal , Volume 13 , Issue 1 , January 2011 , pp. 69 - 77
Copyright
Copyright © Ecclesiastical Law Society 2011

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References

2 ‘Country Focus: United Kingdom – Open Door Policy’ (2007) 164 (April–June) New Horizon: Global perspectives on Islamic banking and insurance 24–28. <http://www.islamic-banking.com/resources/7/NewHorizon%20Previouse%20Issues/NewHorizon_AprJun07.pdf>, accessed 1 October 2010.

3 The newly-elected Conservative government has announced that the FSA will be disbanded. In its place a new Prudential Regulatory Authority within the Bank of England will oversee prudential regulatory concerns while a separate Consumer Protection and Markets Authority will focus on the protection of consumers. The new regulatory system will come online in 2012.

4 Wilson, R, ‘Islamic banking in the United Kingdom’ in Khan, M Fahim and Porzio, M (eds), Islamic Banking and Finance in the European Union (Cheltenham, 2010)Google Scholar, p 212. In the early 1980s a number of Middle Eastern Islamic banks established subsidiaries in the UK, which conducted wholesale operations. Banks such as Saudi International Bank and the United Bank of Kuwait accepted deposits on a murabaha cost-plus basis and conducted short-term trades on the London Metal Exchange.

5 NS&I, Sharia Compliant Savings Review (2008), pp 1–22Google Scholar. <http://www.nsandi.com/files/asset/pdf/sharia'a_savings_review.pdf>, accessed 1 October 2010.

6 Conventional insurance is widely prohibited according to Islamic law as it entails a strong element of speculation and/or excessive risk known as gharar. Takaful insurance offers Muslims a form of communal insurance whereby premiums are pooled in investment projects and disbursed as gifts or donations to compensate a member's claim.

7 HM Treasury, , The Development of Islamic Finance in the UK: the Government's perspective (London, 2008), pp 1–30Google Scholar.

8 City of London, Global Financial Centres 7 (London, 2010). <http://www.zyen.com/PDF/GFC%207.pdf>, accessed 1 October 2010.

9 HMRC, Impact Assessment for Stamp Duty Land Tax, Capital Gains & Capital Allowance Tax Reliefs for Alternative Finance Investment Bonds (London, 2009)Google Scholar. <http://www.hmrc.gov.uk/budget2009/afi-bonds-100.pdf>, accessed 1 October 2010.

10 Meadows, P, Access to Financial Services (London, 2000), pp 1–34Google Scholar.

11 Ibid p 17. Other, less often cited reasons for doing so relate to the classical differentiation between dar al harb (abode of war) and dar al Islam (abode of peace). Some classical jurists argued that interest could be accepted from infidels in the dar al harb, ie non-Muslim territories.

12 HMRC, Impact Assessment, p 5.

13 Meadows, Access to Financial Services, p 17.

14 R Ballard, , ‘Coalitions of reciprocity and the maintenance of financial integrity within informal value transmission systems: the operational dynamics of contemporary hawala networks’, (2005) 6 Journal of Banking RegulationGoogle Scholar 319. See also R Ballard, ‘The operation of contemporary informal value transfer (hawala) systems’, (unpublished, 2007).

15 Allot, A, The Limits of Law (London, 1980)Google Scholar, p 148. See also Menski, W, Comparative Law in a Global Context: The Legal Systems of Asia and Africa (Cambridge, 2006)CrossRefGoogle Scholar.

16 Ainley, M, Mashayekhi, A, Hicks, R, Rahman, A and Ravaliaet, A, Islamic Finance in the UK: Regulation and Challenges (London, 2007)Google Scholar, p 11.

17 HM Treasury, The Development of Islamic Finance, p 13.

18 Ainley et al, Islamic Finance, p 13.

19 Malik, M, ‘Faith and the state of jurisprudence’ in Oliver, P (ed), Faith in Law: Essays in Legal Theory (Portland, 2000), pp 138–139Google Scholar.

20 HM Treasury, The Development of Islamic Finance, p 19.

21 Ainley et al, Islamic Finance, p 14.

22 Ibid, pp 18–19.

23 The Investment Dar v Blom Developments Bank [2009] EWHC 3545 (Ch).

24 Cunningham, A, ‘Role of Sharia boards needs modernisation’, (2010) Financial TimesGoogle Scholar 21 April.

25 Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems N. & Others [2002] All ER (D) 171 (Feb).

26 For example see Chuah, JCT, ‘Islamic principles governing international trade financing instruments: a study of the morabaha in English law’, (2006–2007) 27 Northwestern Journal of International Law and Business 137–170Google Scholar and Hamoudi, HA, ‘Jurisprudential schizophrenia: on form and function in Islamic finance’, (2006–2007) 7 Chicago Journal of International Law 605–662Google Scholar. Both articles are highly critical of Islamic finance and accuse the industry of pursuing form over substance to the detriment of Islamic principles and ethics.

27 Baelz, K, ‘A murabaha transaction in an English court’, (2004) 11 Islamic Law and SocietyGoogle Scholar 117. Baelz presents a very thorough and insightful analysis of the case.

28 The Rome Convention has since been superseded by the Rome I Regulation. However, Rome I also does not see any role for a non-state body of law as the governing law of a contract.

29 In particular, see Beximco Pharmaceuticals Ltd v Shamil Bank of Bahrain [2004] EWCA Civ 19. And the most recent related case: Halpern and Others v Halpern and Another [2007] EWCA Civ 291.

30 Petroleum Development Ltd v Sheikh of Abu Dhabi [1951] 18 ILR 144.

31 Ruler of Qatar v International Marine Oil Company Ltd [1953] 20 Int LR 534.

32 Saudi Arabia v Arabian American Oil Co (Aramco) [1958] 27 Int LR 117.

33 Fadlallah, I, ‘Arbitration facing conflicts of culture: the 2008 Annual School of International Arbitration Lecture’, (2009) 25 Arbitration International 305–306Google Scholar. Fadlallah presents a very interesting discussion of the general argument.

34 Ibid.

35 Ballantyne, W, ‘The Shari'a and its relevance to modern transnational transactions’ in Arab Comparative & Commercial Law (London, 1987)Google Scholar. Also, Ballantyne, W, ‘Commercial law: the conflict in shari'a and secular law’ in Behdad, S and Nomani, F (eds), International Review of Comparative Public Policy (London, 1997)Google Scholar.