Sukuk: Shariah Guidelines for Islamic Bonds

Transcription

1 Islamic Banking Operatins and Regulatry Framewrk Wrkshp Organized by Centre fr Banking Studies, Central Bank f Sri Lanka January 2012 Clmb Sri Lanka Sukuk: Shariah Guidelines fr Islamic Bnds Presented By: MOHD NAZRI BIN CHIK Member, Shariah Supervisry Cuncil f Amana Bank Head f Shariah Divisin, Bank Islam Malaysia Berhad

2 AGENDA Overview n Sukuk Fundamental Shariah Requirements Sukuk Structure Example f Sukuk Structuring and Shariah Issues Sukuk Trading Bank Islam and Amana Bank Invlvements in Sukuk Structuring

3 Capital Market: The Heart f A Natin s Financial System Overall ecnmy are divided int: Real sectr prduces the natin s utput f gds and services Financial sectr prviding financing needed t fund the real sectr REAL SECTOR Surplus Units Husehlds Crprate Gvernment Freign Investr FINANCIAL SECTOR Indirect Funding Banking System & Financial Intermediaries Capital Market Direct Funding REAL SECTOR Deficit Units Husehlds Crprate Gvernment Freign Investr Surce: Adpted frm Prfessr Dr Obiyathulla Ismath Bacha (2010)

4 Intrductin t Sukuk (Islamic securities) and Sukuk Market Sukuk market is ne f the fastest grwing segments f the Islamic capital market ( direct funding market ). Usually translated as Islamic bnd is the mst active Islamic debt market instruments (in additin t Islamic equity market). Prvide alternative funding avenue fr crprate entities and the gvernment, besides the bank funding. Benefits f sukuk: Larger funding amunts Prvide liquidity t the investrs as they can trade it in the secndary market. Islamic financial system expanded int capital market since the late f 1990s. Definitin and Origin f Sukuk Originates frm the Arabic wrd sukuk (صكوك) i.e. plural f sak (صك) Islamic Financial Services Bard (IFSB-2) defines: Certificates that represent the hlder s prprtinate wnership in an undivided part f the underlying asset, where the hlder assumes all rights and bligatins t such asset. Medieval Times the wrd cheque r check derived frm sak

5 Why Shariah Prhibits Cnventinal Bnd? The main issue in the cnventinal debt market t interest bearing lan transactin. In case f zer cupn bnd, investrs will receive accumulated interest at maturity f the bnd as the bnd will be issued at a discunt. Primary Level Relatinship Return t Investrs Cnventinal Bnd Lending and brrwing transactin (lan); thus haram. Interest n lan. Asset Backed Securities Sale f debt r incme generating asset Incme generated frm underlying asset Sukuk Variety underlying Shariah cntracts ( uqud) Prfit elements in underlying cntracts (sale, lease r partnership) Recurse T issuer T asset T the rights and bligatins f the cntracts. Tradability in Secndary Market Sale f debt Sale f debt r incme generating asset Depends n nature f underlying assets. Majrity schlars allw sale f tangible asset, sme intangible asset and interest in ventures, except issues n receivables.

6 Histry f Sukuk Usage f sukuk can be traced back t the 1 st Century AH during the Umayyad Caliphate under the rule f Khalifah al-marwan ibn al-hakam as recrded by Imam Malik in Al-Muwatta, Bk 31, Number و ح د ث ن ي ع ن م ال ك أ ن ه ب ل غ ه أ ن ص ك وك ا خ ر ج ت ل لن اس ف ي ز م ان م ر و ان ب ن ال ح ك م م ن ط ع ام ال ج ار ف ت ب اي ع الن اس ت ل ك الص ك وك ب ي ن ه م ق ب ل أ ن ي س ت و ف وه ا ف د خ ل ز ي د ب ن ث اب ت و ر ج ل م ن أ ص ح اب ر س ول الل ه ص ل ى الل ه ع ل ي ه و س ل م ع ل ى م ر و ان ب ن ال ح ك م ف ق ال ا أ ت ح ل ب ي ع الر ب ا ي ا م ر و ان ف ق ال أ ع وذ ب الل ه و م ا ذ اك ف ق ال ا ه ذ ه الص ك وك ت ب اي ع ه ا الن اس ث م ب اع وه ا ق ب ل أ ن ي س ت و ف وه ا ف ب ع ث م ر و ان ال ح ر س ي ت ب ع ون ه ا ي ن ز ع ون ه ا م ن أ ي د ي Yahya narrated t me frm Malik, that he had heard that receipts (sukuk) were given t peple in the time f Marwan ibn al-hakam fr the prduce f the market at al-jar. Peple bught and sld the receipts (sukuk) amng themselves befre they tk delivery f the gds. Zayd bin Thabit and ne f the Cmpanins f RasululLah (SAW) went t Marwan and said, Marwan! D yu make usury halal (permissible)? He said: I seek refuge with Allah! What is that? He said, These receipts (sukuk) which peple buy and sell befre they take delivery f the gds. Marwan therefre sent a guard t fllw them and t take them frm peple s hand and return t their wners. الن اس و ي ر د ون ه ا إ ل ى أ ه ل ه ا Example f sukuk t raise funding In 1775, the Ottman Empire issued esham t fund its budget deficit after its defeat by the Russians. The gvernment securitised the tbacc custm cllectin, in which the investrs received annuity (variable return) fr the rest f their life. The gvernment may buy back the sahim at their discretin (Ref: Prfessr Murad Cizakca 2009)

7 AGENDA Overview n Sukuk Fundamental Shariah Requirements Sukuk Structure Example f Sukuk Structuring and Shariah Issues Sukuk Trading Bank Islam and Amana Bank Invlvements in Sukuk Structuring

8 Sukuk Must Cmply T The Underlying Shariah Principles 1. Funds raised must be used fr Shariah cmpliant (halal) activities. 2. Fund raised may be used t finance needed tangible assets. Specificity f assets is imprtant, since Sukuk unlike cnventinal bnds cannt be used fr general financial needs f the issuer. 3. Incme received by sukukhlders (investrs) must be derived frm the cash flws generated by the underlying. 4. Sukukhlders have a right t the wnership f the underlying asset and its cash-flws. 5. Clear and transparent specificatin f rights and bligatins f all parties t the transactin, in particular the riginatr (custmer) and sukukhlders. 6. N fixity in returns.

9 AGENDA Overview n Sukuk Fundamental Shariah Requirements Sukuk Structure Example f Sukuk Structuring and Shariah Issues Sukuk Trading Bank Islam and Amana Bank Invlvements in Sukuk Structuring

10 Structuring Sukuk Indebtedness/ bligatin must be created first between the issuer and the investrs. It must be riginate frm ne f the nminated Shariah cntracts ( uqud al-musamma). Nrmally, the names r types f sukuk is determined by the Shariah cntract int which bth the issuer and investr entered int at the first place.

11 Sukuk Structures Murabahah (Mark-Up Sale) Mst cmmn sukuk classificatin is based n underlying Shariah cntracts. Sales-Based Istisna (Manufacturing Sale) Frm Shariah perspective, there is n preference fr the usage f ne cntract ver the ther. Sukuk Based n Shariah Cntracts Lease Based Agency Based Salam (Frward Sale) Ijarah Muntahiah Bit Tamleek (Lease Ended With Transfer f Ownersip) Ijarah Mawsufah fi Dhimmah (Frward Lease) Wakalah lil Istihtmar (Agency fr Investment) Mudharabah Factrs fr cnsidering a Sukuk structure: Ecnmic bjectives f the Issuer. Availability f assets. Level f debt that the cmpany has. Credit rating f the Issuer Legal framewrk Partnership Tax implicatin f a structure Musharakah

12 Permissible Sukuk Structure - AAOIFI AAOIFI has specified several categries f permissible sukuk i.e. securitizatin f: N Securitizatin f/ Purpse Cntract 1 Existing r t be acquired tangible asset Ijarah 2 Existing r t be acquired leasehld asset Ijarah 3 Presale f services Ijarah 4 T fund cnstructin Istisna 5 Presale f the prductin f gds r cmmdities at a future date Salam 6 T fund the acquisitin f gds fr future sale Murabahah 7 T fund capital participatin in a business r investment activity Mudarabah/ Musharakah 8 T fund varius asset, gds r services acquisitin which are then entrusted t an agent t manage n behalf f the wners. 9 T raise funds fr agricultural land cultivatin, land management and rchard management activities Wakalah Muzara ah

13 Distinctins Between Sukuk Based n Shariah Structure Nature f Sukuk Cntract Feature Represents wnership f asset, its usufruct r services (the Underlying Asset ) Evidences f indebtedness arising frm sale f asset Represents wnership f units f equal value in the equity and are registered in the names f hlders n the basis f undivided wnership f shares in the scheme Represents wnership f units f equal value in the equity and are registered in the names f hlders n the basis f undivided wnership f shares in the scheme Ijarah the sukuk are akin t trust certificates bearing undivided wnership in the leased asset and the rights t the cash flw stream arising frm it as well as prceeds frm sale f the assets Murabahah and Istisna the claim is n the bligatins arising frm the applied cntract f exchange. In this case, the sukuk des nt represent wnership n the physical asset as the wnership f the asset has been transferred t the bligr, thugh in certain cases, depending n the credit strength f the bligr, assets are prvided as cllateral r security t the indebtedness. Mudharabah Returns due t the hlders as wners f capital are distributed accrding t the percentage f wnership. Lsses are brne in ttality by the sukuk hlders in accrdance t percentages f the shares wned unless the lsses are attributed t the negligence and/r wilful miscnduct f the mudharib, wh will be respnsible fr the same. Musharakah Returns and lsses due t the hlders as wners f capital are distributed accrding t the percentage f wnership.

14 AGENDA Overview n Sukuk Fundamental Shariah Requirements Sukuk Structure Example f Sukuk Structuring and Shariah Issues Sukuk Trading Bank Islam and Amana Bank Invlvements in Sukuk Structuring

15 Sukuk Ijarah - Overview Under this structure, the Issuer must have taken a particular asset frm the Investr n lease (Ijarah). Nrmally, there asset is riginally that f the Issuer, and sld t Investrs (nrmally intermediated by a SPV), befre being leased back t the Issuer fr a rental. The lease cntract has created a financial indebtedness/ bligatin i.e. bligatin t pay the lease rental. T evidence this, the Issuer issue Sukuk Ijarah t the Investr. The Investr may sell the Sukuk t the secndary market based n selling f debt which is backed by a tangible asset. Segari Energy Ventures Sdn Bhd (SEV) Sukuk Ijarah 1. Sale f assets by SEV t the Financier fr RM 522 millin Financiers/ Primary Subscribers 2. Financiers lease back assets t SEV in return fr Ijarah rental streams 3. SEV issue RM522 millin Sukuk Ijarah as dcumentary evidence f lease rental arrangement SEV Investrs 4. Sale f Sukuk Ijarah

16 Sukuk Ijarah Sukuk Ijarah Malaysia Glbal Sukuk Incrprated Gvernment f Malaysia (GOM) 2. SPV enters int a Master Ijarah Agreement with GOM (lease f land parcels) 7. At maturity, SPV sells the land t GOM at an agreed price. 3. SPV issues Sukuk representing undivided prprtinate wnership in the underlying land parcels which gives rise t rights t a share in the rental payment in the Master Ijarah arrangement. 6. Peridic payment f rentals 8. GOM pays cash t SPV Federal Land Cmmissiner 5. Prceeds 1. Sells beneficial interest in land parcels t SPV fr USD600 millin (transfer f beneficial title) SPV (Malaysia Glbal Sukuk Inc.) 9. Payment f rental and at maturity pay cash fr sukuk redemptin 4. Payment f prceeds frm sale f Sukuk Sukuk Ijarah Owners

17 Sukuk Ijarah Shariah Requirements APPLICATIONS Segari Venture (Malaysia) Guthrie Sukuk Ijarah (Malaysia) Gvernment f Bahrain Sukuk Ijarah Gvernment f Malaysia s Glbal Svereign Sukuk Qatar Sukuk Caravan Sukuk 1. The rental payments maybe structured such that it cmprises f (i) prfits n the rental and (ii) redemptin amunt n the principal. 2. Sukuk Ijarah des nt represent debts; but undivided prprtinate wnership f the leased asset (participatry certificates). 3. Because the Sukuk Ijarah are nt debts nr mnetary, the issue f sale f mnetary-debts with a discunt d nt arise. Hence Sukuk Ijarah maybe traded in the secndary market freely.

18 Sukuk Istisna - Overview Structured t finance prjects which will be cmpleted in the future e.g. pwer plant, highways etc. Under parallel Istisna, the Issuer, being awarded the prject by awarding party, will enter int Istisna 1 with the Investrs i.e. Investrs t deliver the cmpleted prject t the Issuer and the Issuer is suppsed t pay the Istisna Price + Prfit Margin t the Issuer, t be paid deferred at an agreed maturity date. The Issuer, being indebted t the Investrs, will issue Sukuk Istisna t the Investrs. The Issuer will create an SPV fr prject management purpses The Investr will then enter int Istisna 2 with SPV where the payment f the purchase price (equivalent t cnstructin cst) is paid by Investr based n the cntractually agreed terms e.g. prgressive payment, ne lump sum etc. Istisna 1 (Cnstructin Cst + Prfit Margin) ISSUER Issue Sukuk Istisna INVESTOR Creates Special Purpse Vehicle (SPV) SPV Istisna 2 (Cnstructin Cst)

19 Sukuk Istisna Shariah Issues APPLICATIONS Prai Pwer Plant (Malaysia 2002) SKS/ Tanjung Bin Pwer Plant (Malaysia 2003) Sarawak Internatinal Medical Centre (Malaysia 2004) Under this structure, Sukuk Istisna represent the sale price under Istisna 1 (securitizatin f the bligatin t pay the Istisna sale price). Thus, it can nt be traded because it will tantamunt t trading f Istisna debt (bay al-dayn), which is nt yet established until the Istisna asset is cmpleted and delivered t the satisfactin f the buyer (Issuer). Shariah Advisry Cuncil f Securities Cmmissin Malaysia s Decisin (2003): Cntractual guarantee f payment f Istisna Sale Price by the Issuer is sufficient t establish the debt against the Issuer in favur f the Investr (sukukhlders); despite the nature f Istisna cntract that riginally depends n successful cnstructin f the Istisna asset in rder t cnfirm the Istisna Price.

20 Sukuk Musharakah - Overview Bth the Issuer and Investrs (represented by SPV) cntribute t the prject being managed by either the Issuer r third party (as the case maybe). The Issuer will issue Sukuk Musharakah evidencing the capital cntributin f the investrs and the indicative rate f prfit. Prfit, if any, will be shared between the Issuer and Investrs at an agreed sharing rati. Financial lss will be brn by bth prprtinate t their respective investment. Sukuk Musharakah Islamic Religius Cuncil f Singapre (MUIS) 1. MUIS cntributes land and $35 mil (waqf land) 2 (b). SPV cntributes cash (Prceeds received frm Investr) Shpping Cmplex & Offices 5. Leased fr 5 years with guarantee. Rental will be shared prprtinately SPV 3. MUIS appinted as Musharakah s agent t develp the land. MUIS receives fixed agency fee. Estate Mgmt Cmpany 2 (a) Receive invesment frm Investr (Sukukhlders) 6 Prfits distributed t Sukukhlders. MUIS irrevcably undertakes t buy at a pre-agreed price the Musharakah shares f SPV/ Investr n semi-annual basis (mutanaqisah). INVESTOR

21 Sukuk Murabahah (Tawarruq) Tawarruq (Mnetisatin) is applied by Cagamas (Malaysia s natinal mrtgage crpratin) t purchase receivables frm Islamic assets (huse financings, hire purchase and leasing) f financial institutins. Cagamas Sukuk Cmmdity Murabahah (2007) 4. Purchase Price As Agent 1. Cagamas, as Agent (Wakil) f Investrs purchase cmmdity n spt basis (Purchase Price) 3. Prceeds 2. Issue Sukuk t Investrs t evidence wnership f cmmdity INVESTOR 9. At maturity, Cagamas pay principal t redeem Cmmdity Brker A Trustee 5. Trustee (n behalf f Investrs) sell the cmmdity t Cagamas (Deferred Sale Price = P+P) n deferred basis 8. Peridic Prfit Payment Cmmdity Brker B 6. Cagamas sells cmmdity t Brker B n spt basis (P) 7. Selling Price used t fund Cagamas Islamic peratins

22 Hybrid Sukuk 6. IDB prvides certain guarantee in respect f the Assets and Purchase Undertaking SPV (Slidarity Trust) 3. SPV creates a trust in respect f the Assets and issues 5-Year Sukuk t raise US$400 mil SUKUK INVESTOR 2. ICD sells the Assets t SPV fr US$ 400 mil 4. SPV appints ICD as agent t cllect receivables frm the Assets 5. SPV delegates the agency rle t IDB 1. IDB sells the Assets (Ijarah assets US$264 mil i.e. 65.5%, Murabaha assets US$123 mil & Istisna assets US$14 mil) t IDB fr US$400 mil Islamic Develpment Bank US$400 Millin Sukuk Istithmar

23 Hybrid Sukuk (IDB) Shariah Requirements 1. Shariah Bard f IDB viewed that IDB can sell a mixed prtfli f tangible assets (Ijarah prperties) and receivables (murabahah and istisna ) given that the Ijarah prperties are at least 51%. 2. IDB undertk that the Ijarah cntract prprtin in the sukuk asset will nt fall belw 25%. 3. Based n the abve, the sukuk can be freely tradable in the secndary market.

24 Hybrid Sukuk (Istisna + Ijarah) US$200 mil Istisna and Ijarah Tabreed Sukuk (UAE 2006) Structured t finance the cnstructin f a cling plan in Abu Dhabi, UAE. In rder fr the sukuk is tradable (during cnstructin), Shariah Bard required that at least 1/3 f the sukuk was in the frm f tangible assets. The cmpleted plant during issuance f the sukuk represented nly 20% f the sukuk asset. T achieve this, additinal tangible asset was intrduced in the asset pl i.e. Tabreed (SPV) bught palladium wrth US$26 mil. 2. Istisna Agreement. Tabreed t deliver the cling plan & pay security amunt 5. Pursuant t Purchase Undertaking; upn maturity, Tabreed purchase the plants frm SPV. SPV (Tabreed 06 Financing Crp) 1. SPV Issue Sukuk 4. Peridic rental payment INVESTOR 3. Upn delivery f plants, Tabreed leases the plant (fr 5 years)

25 AGENDA Overview n Sukuk Fundamental Shariah Requirements Sukuk Structure Example f Sukuk Structuring and Shariah Issues Sukuk Trading Bank Islam and Amana Bank Invlvements in Sukuk Structuring

26 Tradability f Sukuk Shariah schlars unanimusly agree that sukuk can be sld and purchased except sme differences regarding Sukuk al-murabahah and Salam Sukuk. AAOIFI (Shariah Standard N 17, para 5/2/15) n Sukuk Murabahah: The sukuk is acknwledged It can be traded after purchasing f asset and befre selling it t the buyer. It can nt be traded after the delivery f the asset t the buyer. Reasn: The subject matter is cnsidered as financial asset (receivable). Issue n sale f debt (bay al-dayn) Shariah Advisry Cuncil f Securities Cmmissin, Malaysia: Can be sld at a discunt in a securitizatin exercise. Bay al-dayn is adpted based n the views f sme schlars (Malikis & Shafiites) wh allwed this principle subject t certain cnditins. In capital market, these cnditins are met with a transparent regulatry system which can safeguard the interest f the market participants

27 AGENDA Overview n Sukuk Fundamental Shariah Requirements Sukuk Structure Example f Sukuk Structuring and Shariah Issues Sukuk Trading Bank Islam and Amana Bank Invlvements in Sukuk Structuring

28 Bank Islam Malaysia & Amana Bank Amana Bank Limited is the first full fledged Islamic bank in Sri Lanka. Bank Islam Malaysia, the first Islamic bank in Malaysia is ne f the strategic sharehlders f Amana Bank with 20% sharehlding. Since its inceptin in July 1983, Bank Islam has nt nly becme the symbl f Islamic banking in Malaysia, it has als played an integral rle in setting the stage fr a rbust grwth f the cuntry s Islamic financial services industry. Tday, Bank Islam parades a wide-ranging list f mre than 50 innvative Islamic financial prducts and services as well as a fast grwing netwrk f 122 branches and mre than 1000 self-service terminals natinwide. In recgnitin f its prminence in the industry, Bank Islam was awarded the Reader s Digest Platinum Award fr being the Mst Trusted Brand fr Islamic Financial Services fr three cnsecutive years, namely in 2009, 2010 and 2011.

29 Bank Islam s Ntable Sukuk Transactins

30 Bank Islam s Ntable Sukuk Transactins Ijarah deal f the year 2009 Islamic Finance News Qatar deal f the year 2009 Islamic Finance News Best Islamic Structured Financing The Asset Triple A Islamic Finance Awards 2010

31 Wassalam Thank Yu The infrmatin cntained in this presentatin may be meaningful nly with the ral presentatin and is f the persnal view f the presenter and des nt necessarily represent an fficial pinin f Bank Islam Malaysia Berhad and Amana Bank Limited. Fr further infrmatin, please cntact: Mhd Nazri Bin Chik Assistant General Manager Head f Shariah, Bank Islam Malaysia Berhad Member, Shariah Supervisry Cuncil f Amana Bank Limited [email protected] Direct Line: