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Islamic Finance & Markets 2021 Islamic Finance & Markets 2021 & Markets Islamic Finance Islamic Finance & Markets 2021 Contributing editor John Dewar © Law Business Research 2020 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Islamic Finance [email protected] Senior business development manager Adam Sargent & Markets [email protected] Published by Law Business Research Ltd Meridian House, 34-35 Farringdon Street 2021 London, EC4A 4HL, UK The information provided in this publication Contributing editor is general and may not apply in a specific situation. Legal advice should always John Dewar be sought before taking any legal action based on the information provided. This Milbank information is not intended to create, nor does receipt of it constitute, a lawyer– client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. The Lexology Getting The Deal Through is delighted to publish the eighth edition of Islamic Finance information provided was verified between & Markets, which is available in print and online at www.lexology.com/gtdt. September and October 2020. Be advised Lexology Getting The Deal Through provides international expert analysis in key areas of that this is a developing area. law, practice and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers. © Law Business Research Ltd 2020 Throughout this edition, and following the unique Lexology Getting The Deal Through format, No photocopying without a CLA licence. the same key questions are answered by leading practitioners in each of the jurisdictions featured. First published 2013 Lexology Getting The Deal Through titles are published annually in print. Please ensure you Eighth edition are referring to the latest edition or to the online version at www.lexology.com/gtdt. ISBN 978-1-83862-355-5 Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers. Printed and distributed by Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contri butors Encompass Print Solutions to this volume, who were chosen for their recognised expertise. We also extend special thanks Tel: 0844 2480 112 to the contributing editor, John Dewar of Milbank, for his continued assistance with this volume. London October 2020 Reproduced with permission from Law Business Research Ltd This article was first published in October 2020 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2020 Contents France 3 Switzerland 25 Jean-Baptiste Santelli and Racha Wylde Kathrin Waditschatka and Samuel Ljubicic De Gaulle Fleurance & Associés Meyerlustenberger Lachenal Japan 9 United Kingdom 31 Takashi Tsukioka John Dewar and Munib Hussain Nagashima Ohno & Tsunematsu Milbank LLP Malaysia 14 United States 38 Lim Ziyi, Fiona Sequerah, Ng Chen Lynn and Phang Jian-Jie John H Vogel Christopher & Lee Ong Crowell & Moring LLP Philippines 21 Uzbekistan 45 Rafael A Morales Atabek Sharipov, Mirzaaziz Ruziev and Tatyana Popovkina Morales & Justiniano GRATA International 2 Islamic Finance & Markets 2021 © Law Business Research 2020 United Kingdom John Dewar and Munib Hussain* Milbank LLP OVERVIEW level playing field with conventional debt instruments. Another example is where the Treasury abolished the double stamp duty land tax (SDLT) Policies charge on shariah-compliant mortgages. 1 In general terms, what policy has your jurisdiction adopted The government believes that the growth of Islamic finance in the towards Islamic finance? Are Islamic finance products United Kingdom is beneficial to all UK citizens and that Islamic finance regulated differently from conventional instruments? What has should be available to everybody. On the retail side, all consumers been the legislative approach? gain from a wider choice of retail financial services, particularly those consumers whose religious beliefs prevent them from accessing conven- Islamic finance has developed rapidly in the United Kingdom during the tional finance. On the wholesale side, the entire country benefits from the past decade and the government has been very supportive of its develop- UK financial services industry’s success as the leading western centre ment and promotion. The United Kingdom hosted the first stand-alone for Islamic finance. Islamic financial institution in the European Union and has the highest value of shariah-compliant assets of any non-Muslim country. The United Market development Kingdom has a strong and proud tradition of openness and flexibility, 2 How well established is Islamic finance in your jurisdiction? which, combined with London’s position as a leading international finan- Are Islamic windows permitted in your jurisdiction? cial centre and the United Kingdom’s significant Muslim population (just above 5 per cent of the UK population, according to the 2011 census), Islamic retail products first appeared in the United Kingdom in the 1990s, provides a strong foundation for growth. As a result of its standing, and in the past decade, there has been significant growth of Islamic London has long been perceived as the Western hub for Islamic finance. finance products in both the wholesale and the retail sectors. According The government established the United Kingdom’s first Islamic to a report published by TheCityUK in 2019, the United Kingdom is ranked Finance Task Force in March 2013, and the task force’s mandate is to 17th out of 48 countries in the Islamic banking and finance industry (The help to build upon London’s status as the western hub for Islamic finance Islamic Finance Country Index), with assets of UK-based institutions by showcasing the United Kingdom as the preferred choice for the offering Islamic finance services amounting to a total of £4.7 billion in 2017. Muslim world to invest in and do business with. Its objectives include Against the backdrop of global drivers of Islamic finance, the govern- engaging with the United Kingdom Islamic Finance Secretariat and ment, the Financial Services Authority (FSA) (replaced in large part by others to promote and raise the international profile of the industry and the Financial Conduct Authority (FCA)) and the Bank of England have to use Islamic finance to facilitate inward investment and strengthen actively supported the development of Islamic finance in the United the UK economy. In June 2014, the United Kingdom became the first Kingdom during the past decade. In 2000, the Bank of England recog- western country to issue a sukuk, attracting orders of more than £2 nised the potential for retail and wholesale Islamic finance in the United billion from global investors. London’s maiden sukuk is structured as a Kingdom and, together with the Treasury, established a working group to sukuk al-ijarah and will pay out profits based on the rental income from investigate the obstacles facing the industry. This led to the first of many three government-owned properties instead of interest (riba), which is legislative measures introduced by the Treasury to enable the develop- forbidden by shariah. The £200 million sale was heavily oversubscribed ment of Islamic finance in the United Kingdom. Since 2003, the Treasury, by investors in the United Kingdom, the Middle East and Asia, attracting HM Revenue and Customs and the FSA have introduced several changes orders of £2.3 billion, 10 times higher than the amount sold. Then, in to the tax and regulatory systems to enable UK companies to offer a April 2015, the Secretary of State (acting by the Export Credits Guarantee range of Islamic financial products including asset finance, mortgages Department and operating as UK Export Finance) guaranteed a sukuk and ISAs. Since 2004, the FSA has authorised several Islamic financial issued by Khadrway Limited (where the proceeds of the issuance were firms and the United Kingdom is the first country in the EU to authorise used by the United Arab Emirates to finance the acquisition of four new stand-alone Islamic financial institutions to offer only shariah-compliant Airbus A380-800 aircraft). This was the world’s first sukuk supported by products. This has been achieved by applying the same authorisation an export credit agency. criteria to Islamic and conventional financial institutions. Currently, the Islamic finance products in the United Kingdom are not regulated United Kingdom has 20 financial institutions, including five fully shariah- any differently from conventional instruments and existing legislation compliant banks, offering Islamic finance products, more than any other and regulations apply. The United Kingdom’s approach has been to western country. The main financiers in the UK market include stand- ensure a level playing field for Islamic finance products and conventional alone Islamic financial institutions such as Al Rayan Bank (formerly the instruments, and so the United Kingdom has proactively monitored and Islamic Bank of Britain) and certain conventional institutions that have responded to any unequal treatment between the two by introducing set up Islamic windows. If a conventional institution establishes a sepa- remedial legislation and regulations. For example, the government was rate branch or subsidiary to operate as an Islamic window, that branch or quick to remedy the adverse tax treatment of sukuk to place them on a subsidiary would probably
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