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THE LAW OF ISLAMIC FINANCE IN THE UNITED KINGDOM LEGAL PLURALISM AND. FINANCIAL COMPETITION,JONATHAN G ERCANBRACK,SCHOOL OF LAW. SCHOOL OF ORIENTAL AND AFRICAN STUDIES SOAS,UNIVERSITY OF LONDON. THESIS SUBMITTED FOR THE PHD IN LAW,15 SEPTEMBER 2011. DECLARATION FOR PHD THESIS, I have read and understood regulation 17 9 of the Regulations for students of the School of. Oriental and African Studies concerning plagiarism I undertake that all the material presented. for examination is my own work and has not been written for me in whole or in part by any other. person I also undertake that any quotation or paraphrase from the published or unpublished. work of another person has been duly acknowledged in the work which I present for. examination,Jonathan G Ercanbrack,15 September 2011.
DEDICATION, I would like to thank my wife Anna and my daughter Saskia for putting up with me these past. four years I could not have completed this thesis without their love and support Furthermore I. owe a great deal to my supervisors Professor Peter Muchlinski and Mr Nicholas HD Foster. who devoted countless hours to my supervision and most importantly pushed me to achieve. I also wish to thank the William Ballantyne Fund and the School of Oriental and African Studies. for generous grants without which I would not have been able to carry on. The extant literature concerning the Law of Islamic Finance LIF is dominated by illustrations of. Islamic financial contracts and critiques of the way in which the sharia has been circumvented. Much less emphasis has been placed on understanding the regulatory and financial. environment in which the LIF is formed and practiced This thesis considers the challenges in. formulating and implementing a modern transnational LIF in the conventional financial and legal. environment and offers solutions to these problems It demonstrates the way in which the. classical sharia is transformed by these challenges into a LIF a hybrid law resulting from. pluralistic legal interaction and financial competition In assessing the manner and impact of. implementing the LIF in the United Kingdom the thesis considers the interaction of the sharia. with English law UK financial services law and international regulatory standards Comparative. law methodology with a particular emphasis upon legal pluralism and legal transplants are. The sharia a relatively stateless law is the inspiration behind Islamic financial contracts. Dominated by transnational corporate interests Islamic financial ijtih d represents the strategy. to adapt conventional financial contracts to sharia criteria The results are hybrid structures that. conform to Islamic legal theory but which generate municipal legal challenges in practice as. well as sharia compliance risks Such structures have been integrated in English law with the. creation of tax exemptions and novel regulatory classifications that treat these structures as. loan arrangements and debt based instruments Furthermore Islamic financial transactions are. subject to UK financial services regulation which itself incorporates European Union financial. directives and Basel Capital Adequacy Standards Finally Islamic financial contracts which are. often governed by English law face challenges in English courts concerning parties choice of. the sharia as the proper law of their contract Arbitration on the other hand offers parties the. autonomy to choose the sharia as the substantive law of their contract and to have it enforced. under English law, The wide range of challenges in articulating and implementing a LIF demonstrate the hybrid. nature of the law resulting from pluralistic legal interaction in modern financial markets This. pivotal insight may encourage scholars and practitioners to revise their conception of the LIF. and by extension their view of the industry and its financial practices In sum the LIF is a. modern transnational law that derives its inspiration from the classical Islamic tradition of. commerce but which has been innovated in ways that distinguish it as an emergent law in its. ABBREVIATIONS, AAOIFI Auditing and Accounting Organisation for Islamic Financial Institutions. AB Advising Bank,AFIB Alternative Finance Investment Bond. BCBS Basel Committee on Banking Supervision,BIS Bank for International Settlements.
CAR Capital Adequacy Requirement,CE Common Era,CDO Collateralised Debt Obligation. CIS Collective Investment Schemes,DCR Displaced Commercial Risk. DGS Deposit Guarantee Scheme,DIFC Dubai International Financial Centre. EC European Council,EEA European Economic Area,ESUA Exchange in Satisfaction and User Agreements. EU European Union,FSA Financial Services Authority.
FSCS Financial Services Compensation Scheme,FSMA Financial Services and Markets Act 2000. GCC Gulf Cooperation Council,HMRC Her Majesty s Revenue and Customs. HPP Home Purchase Plan,IAB International Accounting Board. IAH Investment Account Holders,IB Issuing Bank,IBB Islamic Bank of Britain. ICC International Chamber of Commerce,ICTA Income and Corporations Tax Act.
IDB Islamic Development Bank,IDR Issuer Default Rating. IFI Islamic Financial Institution,IFRS International Financial Reporting Standards. IFSB Islamic Financial Services Board,IFSL International Financial Services London. IIC Islamic Investment Company,IIFM International Islamic Financial Market. IILM International Islamic Liquidity Management Centre. IIRA International Islamic Ratings Agency,IMF International Monetary Fund.
INCOTERMS International Commercial Terms, IOSCO International Organization of Securities Commissions. LIBOR London Interbank Overnight Rate,LIF Law of Islamic Finance. LMC Liquidity Management Centre,LSE London Stock Exchange. MENA Middle East and North Africa,MLIF Municipal Law of Islamic Finance. NS I National Savings Investments, OECD Organization for Economic Cooperation and Development.
OIC Organization of the Islamic Conference,PLS Profit and loss sharing. PRA Prudential Regulatory Authority,PSIA Profit sharing and investment account. RAO Regulated Activities Order,SDLT Stamp Duty Land Tax. SG Symphony Gems,SPL Sanghi Polyesters Ltd,SPV Special Purpose Vehicle. SSB Sharia Supervisory Board,TCF Treating Customers Fairly.
TID The Investment Dar Company,TII The International Investor. TNC Transnational Corporation,UAE United Arab Emirates. UK United Kingdom, UNCITRAL United Nations Commission on International Trade Law. US United States,VAT Value Added Tax,WTO World Trade Organisation. Note The transliteration of Arabic words into the Roman script has been undertaken according. to the Library of Congress transliteration standard For the sake of simplicity most singular. Arabic words have been given an English s to denote the plural form Words such as sukuk. however which are often used in modern financial markets are used in the plural Finally. Arabic words which according to the Oxford English Dictionary have been borrowed into the. English language have not been transliterated or italicised Such words include the sharia. Hadith Sunna and others,ARABIC ENGLISH GLOSSARY,dat at tujj r practice of the merchant trader.
Adh b punishment chastisement,Ahd obligation covenant treaty agreement. Aqd contract covenant,Amal labour action performance. Am nah trust faithfulness,Ariyah loan,Ark n pl component s pillar s of a contract. A b al hadith people of the Hadith traditions term associated with the M lik s. Ayn a corporeal matter substance,B il void legal,Bat n inner meaning or interpretation. Bay al dayn sale of debt, Bay gh ib contract of sale for an absent thing or object.
Bay al nah double sale used to circumvent the prohibition of lending with interest. Bay al waf a contract in which the owner of property house or land sells it with the. condition that that he will repurchase the property for a larger sum than. the original price,Bid a innovation,Dal l sign indication. ar rah necessity need, Dayn obligation debt also expresses the idea of claim or right. Dhimmah capacity personal responsibility or obligation. F ida interest growth, Faq h sg Fuqah pl Expert in Islamic jurisprudence fiqh. Far obligatory,F sid defective legal,Faskh rescission of a contractual bond. Fatwa legal opinion,Fiqh Islamic jurisprudence, Fi ra the native ability to know of God s existence.
Fur branches of jurisprudence whereas the u l al fiqh indicates the roots of. Gharar excessive risk speculation, Hadith narration of the words and deeds of the Prophet Muhammad. al l lawful,ar m forbidden,aw lah transfer of debt. Hibah gift, Hijra the emigration of the Prophet Mohammed from Mecca to Medina in 622. lah sg iyal pl legal stratagem,Ib d t devotional worship e g prayer fasting. Ib hah permissibility,Ij rah lease,Ij rah wa iqtin financial lease.
Ijm scholarly consensus,Ijtih d independent reasoning. Ikhtil f disagreement difference of opinion,Ikhtiy r option choice preference. Illah effective cause The element utilised in establishing a connection. between the holy sources the Quran and Sunna and a novel case. requiring independent juristic reasoning ijtih d,Ir dah human will. Isn d chain of authorities of a Hadith,Isti s n juridical or personal preference. Isti la public benefit technical legal term,Isti n contract of hire manufacture.
Jahl want of knowledge ignorance,J hil yah time of ignorance pre Islamic. Ju lah reward,Kaf lah guarantee,Khultah mixed type of partnership. Kit b book,Kit b al iyal book of iyal, Madhhab Madh hib schools of law Sunni schools of law Sh fi i M lik anaf and anbal. Mafsadah evil, Majlis noun of place indicating a session or meeting assembly. Makhraj sg Makh rij pl exit s anaf term for iyal,Makr h reprehensible.
Mal property,Mand b meritorious recommended,Manfa ah usufruct. Maq id al sharia objectives of the sharia,Ma la ah public interest. Maysir gambling,Mu mal t transactions,Mub h permissible licit. Mu rabah an investment partnership also known as muqar ah and qir. Mu rib investment agent, Mujtahid Islamic scholar who possesses the aptitude of performing ijtih d. Mukh arah legal stratagem lah commonly associated with bay al nah. Mur ba ah a sale with a mark up profit, Mush rakah contractual partnership participation financing.
Musta abb recommendable,Muz ra ah agricultural partnership. Na a text whose presence in the Quran or Hadith must be demonstrated. N yah intention,Qab l acceptance contractual relation. Q d Islamic law judge,Qard asan loan a charitable loan without interest. Qa d human intention, Qir d sleeping partnership also known as mu rabah and muqar ah. Qiy s analogical reasoning one of the four sources of Islamic law according to. orthodox Sunni Islam, Rabb al m l investor a partner in the mu rabah contract.
Ra y discretion legal reasoning,Rib al fa l rib of excess. Rib al nas ah rib by delay,Rib w rib based illicit. Ri an the fact of being pleased or contented approval. Rukn sg component s pillar s of a contract,Sabab cause. adaqa voluntary contribution,add al dhar i blocking the means legal principle. akk sg Sukuk pl cheque Islamic bond Islamic investment certificate. Salam a forward sale fungible commodity,a valid legal.
Shah dah witness the declaration by which a believer professes her belief in the. Islamic faith,Sharia literally the way Islamic law. Shirkah Sharikah partnership, Sharikat al milk partnership based on joint ownership. Sharikat al wuj h credit partnership, Shur legal formularies also conditions or appendages to contracts. Sukuk al ij rah Islamic securitisation based on a lease. Sunna the living tradition the sayings and doings of the Prophet Muhammad. holy source, S rah chapter or segment indicating the way in which the Quran has been. Tak ful Islamic insurance,Takhayyur eclectic choice legal.
Tal q pronunciation of divorce by the man, Talf q patching a legal technique used to derive a novel legal opinion. Taql d juristic conformity in the period after gates of ijtih d were said to have. been closed, Tashr refers to modern statutory legislation which incorporates elements of the. Tawarruq sale and re sale transaction used to generate cash liquidity. Thaw b merit compensation offered where not required. Ulema religious scholars,Umlah commission,Ummah community. Urf custom, U l al fiqh the principles of jurisprudence methodology. Wak l agent, Wak lah agency investment contract in which agent represents investor s.
Waqf charitable endowment,Wa f attribute, Zak h obligatory charitable contribution Islamic law.

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