Tilburg University Sukuk structures Salah, O. Publication date: 2014 Document Version Publisher's PDF, also known as Version of record Link to publication in Tilburg University Research Portal Citation for published version (APA): Salah, O. (2014). Sukuk structures: Legal engineering under Dutch law. Eleven International Publishing. 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Download date: 30. sep. 2021 Sukuk Structures: Legal Engineering Under Dutch Law The commercial edition of this book is published by Eleven International Publishing ISBN 978-94-6236-392-2 ISBN 978-94-6274-001-3 (E-book) © 2014 Omar Salah | Eleven International Publishing Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel: 1-800-944-6190 (toll-free) Fax: +1-503-280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag. This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands TISCO Sukuk Structures: Legal Engineering Under Dutch Law Proefschrift ter verkrijging van de graad van doctor aan Tilburg University, op gezag van de rector magnificus, prof. dr. Ph. Eijlander, in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie in de aula van de Universiteit op vrijdag 25 april 2014 om 14:15 uur door Omar Salah geboren op 14 maart 1985 te Kabul, Afghanistan Promotor(es): Professor R.D. Vriesendorp Professor R.M. Wibier Commissieleden: Emeritus Professor H. Visser Professor L. Gullifer Professor R.P.J.L. Tjittes Dr P. Ali Dr V. Mak TISCO Sukuk Structures: Legal Engineering Under Dutch Law PhD dissertation for the purpose of being admitted to the degree of doctor at Tilburg University, on authority of the rector magnificus, prof. dr. Ph. Eijlander, to be defended in public before a committee appointed by the doctorate board in the auditorium of the University on Friday 25 April 2014 at 14:15 by Omar Salah born on 14 March 1985 in Kabul, Afghanistan Under the supervision of: Professor R.D. Vriesendorp Tilburg University (Tilburg Law School) Professor R.M. Wibier Tilburg University (Tilburg Law School) Committee: Emeritus professor H. Visser VU University (Faculty of Economics and Business Administration) Professor L. Gullifer University of Oxford (Faculty of Law) Professor R.P.J.L. Tjittes VU University (Faculty of Law) Dr P. Ali University of Melbourne (Melbourne Law School) Dr V. Mak Tilburg University (Tilburg Law School) Editorial Preface In the Center for Company Law at Tilburg University, researchers investigate the functioning of business organisations from a business law and tax law perspective. The central focus point in their research is the question how to facilitate different types of entrepreneurial activities, while balancing between efficiency and fairness. Facilitating entrepreneurial activities requires an adequate and efficient legal infrastructure, in which company law, tax law, contract and property law as well as insolvency law take a prominent position. Financing business organisations and the legal infrastructure in which finan- cial arrangements prosper is one of the main research themes of the Tilburg Center for Company Law. The academic debate on finance until recently focused primarily on ‘Western’ legal systems, paying only little attention to financial arrangements and techniques to finance business organisation in other legal systems, nota- bly in the Islamic legal tradition. Western jurisdictions are more and more confronted with financial arrangements that are based on principles stem- ming from Islamic Law, raising the question how these finance structures can be aligned with and fitted into, for example, the Dutch legal system. This may be problematic due to differences in legal approaches and legal culture. However, the study by Omar Salah on Islamic finance clearly demonstrates that this does not need to be the case, since he concludes that structures of Islamic finance portrayed in his study, are admissible under Dutch law. Vice versa, until now Islamic finance structures are often governed by English Law. This study shows that there are no serious legal impediments that Islamic finance contracts could be drafted under and governed by Dutch law. The editors of the Center for Company Law Series highly recommend Omar Salah’s innovative book ‘Sukuh Structures: Legal Engineering under Dutch Law’ to our readers, academic scholars and practitioners alike. Tilburg, March 2014 Peter Essers Eric Kemmeren Joe McCahery Ger van der Sangen Christoph Van der Elst Erik Vermeulen vii Preface This book is on Islamic finance, in particular on sukuk (Islamic securities), under Dutch private law. It has been written in order to obtain a PhD at Tilburg Law School, Tilburg University. Researching and writing this dissertation not only allows me to become a Doctor of Philosophy, but it has also given me a better understanding of the significance of becoming a Philosophiae Doctor in its original Greek meaning: love of wisdom. The journey towards this love of wisdom started off in the final year of my law studies when I was writing my master’s thesis and working as a teaching and research assistant at the Property and Insolvency Law practice group of the Private Law Department. Professor Reinout Vriesendorp and Professor Reinout Wibier invited me to write a PhD proposal based on the subject of my master’s thesis: Islamic finance law. Back then I could not wait to become a practising lawyer. However, during the process of writing my master’s thesis I found both doing research and the topic of my master’s thesis fascinating. So I combined doctoral research with practising law. During the first two years of my doctoral programme (October 2009-August 2011), I was a PhD candi- date at Tilburg University, while being affiliated with De Brauw Blackstone Westbroek. In the following two and half years of my doctoral programme (September 2011-February 2014), I worked as a lawyer (advocaat) at De Brauw Blackstone Westbroek and worked on my dissertation mainly in the evenings (or to put it more accurately, late nights/early mornings) and weekends. This book could not have been written without the support of many people, only a few of whom I am able to mention in this preface. This does not mean that the support of those unmentioned is not equally appreciated. I would first like to thank my supervisors Professor Reinout Vriesendorp and Professor Reinout Wibier. Their supervision and guidance has been crucial. Both supervisors have been able to inspire me, motivate me, and guide me in the best way possible. I am extremely grateful to both of them. Although I do acknowledge that the time frame for writing this book was completely self-imposed, both supervisors knew how to ensure that I did not lose sight of it. During the first two years of the process, Professor Reinout Wibier used to ask me on a daily basis: “Is het boek al af? (“Is the book finished yet?”). He even made sure to remind me of this while he was visiting me in London in the summer of 2010 during my secondment with King & Spalding. After two ix Preface years, I continued my career at De Brauw Blackstone Westbroek. Within a few months, Professor Reinout Vriesendorp sent me a text message from a conference in Italy to announce that he would be joining De Brauw Blackstone Westbroek as well. In those subsequent two and half years, he reminded me almost on a daily basis what a relief it would be for me when I handed in my dissertation so that I could focus on my career as a lawyer. After having attended his lectures on property and insolvency law from the very first years of my law degree onwards, having worked with him as a teaching and research assistant as a young student, and writing a dissertation under his supervision, it was an honour to learn the very first skills as lawyer from him as well. In this preface I also would like to make a confession. Although my official PhD programme was planned for 5 years combined with practising law, accord- ing to my hidden agenda I had to write my dissertation in 2 years and join De Brauw Blackstone Westbroek afterwards. However, being too eager also has its downsides. As if writing a dissertation in two years was not ambitious enough, I was determined to experience the life of an academic at Tilburg University to the fullest. So I decided to give lectures at Tilburg University and guest lectures at Maastricht University and Leiden University, spend some time abroad as one would expect from a true academic in the field of international finance law, and speak at international conferences and publish extensively.