Zolkapli, Nuramarina (2017) Level-playing field : the regulatory framework for Islamic banks in the United Kingdom and Malaysia. PhD Thesis. SOAS, University of London. http://eprints.soas.ac.uk/id/eprint/24339 Copyright © and Moral Rights for this PhD Thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This PhD Thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this PhD Thesis, full bibliographic details including the author, title, awarding institution and date of the PhD Thesis must be given e.g. AUTHOR (year of submission) "Full PhD Thesis title", name of the School or Department, PhD PhD Thesis, pagination. Level-Playing Field: The Regulatory Framework for Islamic Banks in the United Kingdom and Malaysia BY NURAMARINA ZOLKAPLI Thesis submitted for the degree of PhD 2016 Department / Centre of Financial and Management Studies Faculty of Law and Social Sciences School of Oriental and African Studies (SOAS) University of London 1 DECLARATION FOR SOAS PHD THESIS I have read and understood regulation 17.9 of the Regulations for students of the SOAS, University of London 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 I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. Signed by, Nuramarina Zolkapli Date: 17 December 2016 2 DEDICATION Firstly, I would like to express my sincere gratitude to both of my supervisors, Professor Laurence Harris and Dr. Jonathan Ercanbrack for their continuous support of my PhD study and this research, for their patience, motivation, time, and immense knowledge. I could not have imagined having better supervisors than both of them. Besides that, I would also like to thank Professor Ciaran Driver for being a supportive PhD tutor throughout the past four years. I would also wish to thank Majlis Amanah Rakyat (MARA) for their generous grant, for without them I would not have been able to pursue PhD. Last but not least, I would like to thank my family: Datin Hamishah, Zolkapli Zainal and Dato’ Haji Alias, Nur Sulaiman and Nur Haifa Zahra for their love and support during my PhD study. My sincere thanks to all my friends, in particular: Dato’ David Yeoh, Dato’ Yunus Rais, Professor Norhashimah Yassin and Rahim Ali, for without their precious support and motivation it would not have been possible for me to complete this research. 3 ABSTRACT ‘Level-playing field’ is an expression used by regulators in expressing the fair treatment of financial institutions. ‘Level-playing field regulations’ is also a representation of benchmark-setting in response to the complexity and diversity that exists in the financial system. Nonetheless, such a notion has never been precisely defined thereby bringing into question the usefulness of this idea. Therefore, the aim of this research is to examine the concept of level-playing field regulations. In particular, this research investigates level-playing field regulations for retail Islamic banks in the United Kingdom and Malaysia - two notable examples where level-playing field has been expressed in regulatory reforms. A comparative law methodology is employed, and a criterion judging whether there is (i) ‘equality before the law’; and (ii) ‘a fair opportunity to compete’ is established to test whether a level-playing field exists. This research is the first to determine the extent to which retail Islamic banks can be considered to be operating within a level-playing field. One of the significant findings from this study is that the regulators in the UK and Malaysia have not fully enabled level-playing field regulations for retail Islamic banks. It is also inferred that due to the complexity of the financial system, exposure to risks and the nature of law, the regulatory environment for the banking system does not allow the level-playing field regulations to be effective. Therefore, level-playing field regulation is not a useful concept. 4 By challenging the existing regulatory framework, this research provides pivotal insights to regulators and scholars on the criterion, challenges and impact of level- playing field regulations. This research will encourage the reconsideration of using this concept. 5 ABBREVIATIONS BOE Bank of England DGDS Deposit Guarantee Directive Scheme EU European Union FCA Financial Conduct Authority FPC Financial Policy Committee FSA Financial Services Act MDIC Malaysian Deposit Insurance Scheme PLS Profit and Loss Sharing PRA Prudential Regulatory Authority PSR Profit Stabilisation Reserve SDLT Stamp Duty Land Tax IAH Investment Account Holder CIS Collective Investment Scheme FSMA 2000 Financial Services and Markets Act 2000 SPV Special Purpose Vehicle AFIB Alternative Finance Investment Bond RAO Regulated Activities Order UKLA United Kingdom Listing Authority HPP Home Purchase Plan SSB Sharia Supervisory Board AAOIFI Accounting and Auditing for Islamic Financial Institutions IFSB Islamic Financial Services Board HQLA High Quality Liquid Assets EBA European Banking Commission LCR Liquidity Coverage Ratio BIS Bank of International Settlements FA Finance Act VAT Value-Added Tax BBA Bai Bithaman Ajil CEO Chief Executive Officer NSAC National Sharia Advisory Council CBA 2009 Central Bank Act 2009 SAC Sharia Advisory Council FSA 2013 Financial Services Act 2013 IFSA 2013 Islamic Financial Services Act 2013 ICM Islamic Capital Market MIFC Malaysia International Islamic Financial Centre IBFIM Islamic Banking and Finance Malaysia INCEIF International Centre for Education in Islamic Finance ISRA International Sharia Research Academy for Islamic Finance IILM International Islamic Liquidity Management Corporation IBA 1983 Islamic Banking Act 1983 LFX Labuan Financial Exchange Bursa-Mal Bursa Malaysia IRB Inland Revenue Board SC Securities Commission of Malaysia 6 LFSA Labuan Financial Services Authority IFIs Islamic banking and financial institutions BIMB Bank Islam Malaysia Berhad FC Federal Constitution BNM Bank Negara Malaysia IIMM Islamic Inter-bank Money Market GIC Government Investment Certificate CBM Central Bank of Malaysia IBS Islamic Banking Scheme MII Mudaraba Interbank Instruments NIID Negotiable Islamic Instruments of Deposit MOF Ministry of Finance IRB Inland Revenue Board YA Year of Assessment ITA 1967 Income Tax Act 1967 RPGT 1976 Real Property Gains Tax Act 1976 RPGT Real Property Gains Tax SD 1949 Stamp Duty Act 1949 DM HPP Diminishing Musharaka Home Purchase Plan DM Diminishing Musharaka HMRC Her Majesty Revenue and Customs UNCITRAL United Nations Commission on International Trade Law KLRCA Kuala Lumpur Regional Centre for Arbitration AALCO Asian-African Legal Consultative Organisation DIAC Dubai International Arbitration Centre ADCCAC Abu Dhabi Commercial, Conciliation and Arbitration Centre IICRCA International Islamic Centre for Reconciliation and Commercial Arbitration 7 GLOSSARY* Commodity A Murabaha purchase and sale transaction of Sharia Murabaha compliant commodities, whereby the buyer purchases the commodities on a deferred payment basis and subsequently sells them to a third party on a cash payment basis. Diminishing Diminishing Musharaka is a form of partnership in which one Musharaka of the partners (customer) promises to buy the equity share of the other partner (financier) gradually until the title to the equity is completely transferred to the buying partner. The transaction starts with the formation of a partnership, followed by the financier leasing his equity share to the customer throughout the tenure of the lease, the customer will gradually buy the other financier’s share at market value or the price agreed upon at the time of entering into the contract. The “buying and selling” contract is independent from the partnership contract and should not be stipulated in the partnership contract since the buying partner is only allowed to give only a promise to buy. It is also not permitted that one contract be entered into as a condition for concluding the other. Fatwa A juristic opinion or pronouncement of facts given by the Sharia board, a mufti, or a faqih (scholar) on any matter 8 pertinent to Sharia issues, based on the appropriate methodology. Ijara An Ijara contract refers to an agreement made by an institution offering Islamic financial services to lease to a customer an asset specified by the customer for an agreed period against specified instalments of lease rental. An Ijara contract commences with a promise to lease that is binding on the part of the potential lessee prior to entering the Ijara contract. Ijara Muntahia An Ijara Muntahia Bittamlik (or Ijara wa Iqtina) is a form of Bittamlik lease contract that offers the lessee an option to own the asset at the end of the lease period either by purchase of the asset through a token consideration or payment of the market value, or by means of a gift contract. Islamic window Islamic window is part of a conventional financial institution (which may be a branch or a dedicated unit of that institution) that provides both fund management (investment accounts) and