An introduction to Islamic Finance in. Nairobi, 8 October Allen & Overy LLP

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1 An introduction to Islamic Finance in Banking Transactions Nairobi, 8 October 2013 David Miles Allen & Overy LLP

2 Introduction (1) David Miles is a partner in Allen & Overy's Abu Dhabi office. He has over 10 years of experience of advising on a wide variety of financings (including in the following sectors: energy, infrastructure, general lending, project, leveraged and acquisition finance) and across a number of jurisdictions, having previously worked in the Allen & Overy London, Hong Kong, Tokyo, New York and Dubai offices. David works on both Conventional and Sharia- compliant financingi structures. t David Miles Partner, Abu Dhabi office david.miles@allenovery.com

3 Introduction (2) in Africa Allen & Overy s dedicated Africa Group (including a full-service office in Casablanca, Morocco), comprises over 100 lawyers from across our network of offices. Active on the continent for the past 20 years, the Africa Group, together with selected local counsel, provides an integrated service for clients doing business in the region. We advise international organisations, multinationals, investors, banks and African corporates on their business activities throughout the continent since the beginning g of 2013 alone we are actively advising in 30+ jurisdictions in Africa, covering anglophone, francophone, Arabic speaking and lusophone countries. Our team draws on both common and civil law capabilities and can operate in English, French, Portuguese and Arabic.

4 An introduction to Islamic Finance in banking transactions This session is intended to be interactive: please treat it as an open forum to ask questions, share your experiences and guide the agenda into what interests t you. In this session I propose to cover the following: the key basic principles behind Islamic Finance; primary Sharia prohibitions which shape approach on Islamic Finance; and the main Islamic Finance structures used in banking transactions, with particular focus on the 2 most commonly used structures: murabaha (cost-plus financing); and ijara (leasing).

5 Firstly what is Islamic Finance? Islamic Finance refers to the network of financial institutions and commercial activities that conform to several core Sharia principles: prohibiting the receipt and payment of interest; avoiding uncertainty; discouraging speculative behaviour; and advocating risk sharing.

6 The principles behind Islamic Finance structures The body of Islamic law is known as Sharia, but this is not a codified body of law and is capable of development and interpretation: Note: this is not a governing law for documentation (typically still use i.e. English law). Sharia is derived from a number of sources including the Quran. Sharia principles p shape theway in which Islamic Finance has evolved. Issues require an opinion (fatwa) from a recognised Sharia adviser. The opinions of Sharia advisers on different issues can vary, depending on which of the five Islamic schools of law (madhabs) they belong to.

7 LMA recommended Islamic Finance documents? Sadly not it is very difficult to establish market accepted documentation for an Islamic Finance structure, because of the differing interpretations and requirements of Sharia advisers neither law firms nor the LMA is qualified to advise on compliance with these Sharia requirements. Many terms from the suite of LMA conventional facility agreements can, of course, still be used for the documentation for an Islamic Finance structure, but there will be much more free-hand drafting required (see also slide 14). One of the reasons that documenting Islamic Finance structures can be much more time-consuming than conventional loan facilities is that there is no base LMA document to start from. However, the LMA does produce a very useful Users Guide to Islamic Finance Documents, available on the LMA website.

8 Primary Sharia prohibitions to bear in mind (1) PROHIBITION OF USURY Sharia prohibits the charging of usury or interest (riba). (i.e., the payment of a predetermined, guaranteed or calculated return for the use of money). The return on an investment should be linked to the profits actually generated. Investors should earn returns by sharing profits and assume the risk of any loss. PROHIBITION OF UNCERTAINTY Sharia prohibits uncertainty t (gharar) h in contracts. i.e., impermissible to sell items where their existence or characteristics are not certain. Contracts containing obligations to insure or indemnify another person or grant an option to purchase an asset may be unacceptable.

9 Primary Sharia prohibitions to bear in mind (2) PROHIBITION OF SPECULATION Sharia prohibits speculation or gambling (maisir). Scope of maisir is subject to interpretation. Contracts to insure for a profit are prohibited. Dealings in futures and options may not be acceptable. FORBIDDEN ACTIVITIES Sharia prohibits the use or dealings in certain impermissible (haram) activities or commodities. Business activities must be permissible (halal). Islamic financing cannot be used to finance enterprises engaging in impermissible activities (e.g., a brewery). Different views exist on borderline cases (e.g., hotels or aircrafts which serve alcohol).

10 Primary Islamic Finance techniques Islamic Structure Murabaha Ijara Musharaka Partnership Mudaraba Istisna Sukuk Conventional Description Cost-plus financing (most similar to conventional lending) Sale and leaseback Trust financing Custom manufacturing (can be combined with an ijara to finance green field assets i.e. most common Islamic Finance structure for project finance) Islamic bond Because they are the two most commonly used in general banking transactions, ecause t ey a e t e t o ost co o y used ge e a ba g t a sact o s, I will focus on murabaha and ijara for the remainder of this presentation.

11 Murabaha (cost-plus financing) structure

12 Ijara (leasing) structure

13 A typical suite of core finance documentation for a murabaha or an ijara structure Murabaha Master Murabaha Agreement; Notice of Request to Purchase; Transaction Confirmation and Offer Notice; On-Sale Agency Agreement; and Investment Agency Agreement (if syndicated). Ijara Asset Sale and Purchase Agreement; Ijara (Lease) Agreement; Service Agency Agreement; Purchase Undertaking; Sale Undertaking; and Investment Agency Agreement (if syndicated). N t th fi t i d t i d f h I l i t t th Note: these five to six documents required for each Islamic structure are the equivalent of the single facility agreement required for a conventional bank loan.

14 And finally a couple of general issues which often arise with Islamic Finance structures One Sharia adviser s halal is another Sharia adviser s haram: i.e. increased questions on commodity murabaha structures based on concerns that they are simply disguised lending ; and generally the requirements of different banks Sharia advisers can cause conflict within a syndicate / cause delays to the transaction. Increased Costs / Market Disruption / Break Costs / Commitment fee / Late Payment Charges: some Sharia advisers do not like these concepts (commonly used in conventional loans) as they are heavily based on the loan principle of cost plus funding, rather than the shared risk -based approach which underpins Islamic Finance principles. This lead can lead to tension with credit approvals / commercial teams within banks (or with other banks), as protection on these issues is often required, regardless of the Sharia advisers concerns.

15 Questions? These are presentation slides only. The information within these slides does not constitute definitive advice and should not be used as the basis for giving definitive advice without checking the primary sources. Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP's affiliated undertakings.