Organised by the Institute of Islamic Banking and Insurance (IIBI) London held at British Bankers' Association on 16/03/2007
Saturday, March 31, 2007
Organised by the Institute of Islamic Banking and Insurance (IIBI) London held at British Bankers' Association on 16/03/2007
Friday, March 30, 2007
The new website's address is www.bviimmigration.gov.vg. It includes the list of designated ports of entry, as well as the list of persons prohibited from re-entering the Territory. The website launch forms part of an ongoing programme of initiatives aimed at modernisation of the Immigration Department.
During the media briefing to launch the new website, it was said by the Permanent Secretary in the Chief Minister's Office, Clyde Lettsome: “We are in an information age and being a part of the global community, the BVI must keep pace.” Lettsome also stated that the launch of new website of the Immigration Department is characteristic of the fast moving changes in technology and the way how information is exchanged within a global community. He also noted that this website is important to make the BVI Immigration Department more accessible to the public generally.
Acting Chief Immigration Officer Malvern Brathwaite said that he is pleased the Department established an online presence. He stated that an immigration department, by its nature, is a worldwide network, and “Therefore for us to be able to use this tool that connects the globe and our travellers, moves us closer to realising the creed of the true nature of an immigration department.” Malvern Brathwaite noted that there is another convenience for travellers on the website, of being able to download a variety of immigration forms.
“We will seek to disseminate comprehensive information to travellers, which includes immigration standards and procedures for entering the BVI, visa requirements, policy guidelines that apply to residency applications, and the full range of immigration related data that travellers will need to vacation or work in the Territory,” Brathwaite explained.
The new website of the BVI Immigration Department is very informative, however there are some technical issues that could be improved: Links to the BVI Financial Services (bvi .org) and Disaster Preparedness (bviodp .vg) are pointing to expired domains and can mislead the visitors. Links to BVI Financial Services Commission and BVI Department of Disaster Management would be more appropriate instead.
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Thursday, March 29, 2007
An Islamic mega-bank
Banker Middle East 2007
There has been a lot of talk lately about an Islamic mega-bank. Mike Gallagher reports. The idea of an Islamic mega-bank has been going around for years, mostly as a sort of Middle Eastern fantasy that had very little in common with reality. People would talk wistfully about Islamic mega-banks like they would about world peace. It sounds like a good idea, revolutionary even, but in practice impossible.
Monday, March 26, 2007
Offshore Industry Professionals Highlight BVI Regulations' Changes Favourable to Financial Community
One of the leading global offshore companies, Walkers, has recently expressed its opinion on the newly implemented private trust company legislation and the Legal Profession Bill. Offshore professionals have also highlighted other important enhancements contributing to BVI leading positions in offshore financial world including the development of the Caribbean's first Commercial Court and the appointment of a Managing Judge for the Eastern Caribbean Supreme Court.
The planned introduction of the new private trust company legislation was announced in October 2006, and the law provisions came into force on 15 January 2007. Under the newly enacted law, certain private trust companies may be exempted from licensing requirements and other provisions of the Banks and Trust Companies Act. Under procedures implemented by the Financial Services Commission, these exemptions will be applied to the BVI private trust companies which do not offer their services to the general public.
Private trust companies allow for establishing family-controlled structures, and offer trustees all the benefits of limited liability and perpetual existence which are usually the features of corporate vehicles, and can decrease the amount of taxes, by moving the liability from the settlor to the trust company. This kind of corporate vehicles has become increasingly popular in offshore financial centres during the last 15 years.
Other important steps taken by the BVI Government is the development of the first Commercial Court in the Caribbean and introduction of the Legal Profession Bill, which makes provision for the fusion of the barrister and solicitor branches of the legal profession, and promotes legal education and the discipline of legal practitioners. This Bill is another example of how the jurisdiction focuses on providing the highest level of legal services.
New legislation's positive impact on offshore industry is confirmed by the growing volumes of financial services provided by offshore law firms. For example, Walkers law firm has reported the increased amount of work in its BVI office, including the high net-worth corporate transactions and complex international litigation cases. As a result of an increase in litigation work, the law firm recently added three members to its BVI department, and now it has become the second largest law firm in the BVI.
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Islam, whose followers include almost one-quarter of the world's population, has made the faith into a guide governing all facets of life. Islamic Law, Shariah, is based on the Holy Quran "The Contemporary Message of Allah," The Most Merciful and the Most Beneficent, Sunnah "The preachings of the Prophet Muhammad", and Jjma or Umma "Consensus, the exercise of one's independent judgment based on scholarly interpretation of questions not covered by the first two sources" (Azzam, p. 82).
Islamic Law governs only those who accept it as the revealed will of Allah; thus Islam tends to be a matter of personal philosophy, rather than geography (Crane). Islamic Law has been praised by Western scholars, such as New York University's Anderson, who wrote that " After thirteen centuries of accomplishment during which the Shariah has governed the lives of myriads of Muslims in successive generations, the great Law is still the object of careful study by scholars and jurists in the East and the West" (Anderson, ix).
According to Crane, there are almost no non-Muslims, especially Western businessmen, "with any knowledge of either the Shariah, i.e., Islamic Law, as it is now developing in the Middle East, or of Islamic economics which, at least in concept, is merely a branch of the Shariah."
Islamic banking, based on the Islamic law of contracts, derives from the Law of Tawheed, i.e., "belief in the oneness of Allah, (and the teaching) that no one should claim for himself what is basically the creation of Allah or the product of another man's efforts and skills." Therefore, Islamic banking is based on- avoidance of fixed-rate interest, and on acceptance of deposits and investment funds on PLS (profit and loss sharing).
Islam condemns riba (fixed interest), which "reinforces the tendency for wealth to accumulate in the hands of a few, and thereby diminishes man's concern for his fellow men," guarantees gain without the risk of loss, and hampers investment and employment ("Islam and Financial Intermediation," pp. 110- 11). In even more explicit terms, riba is said "to impede the productive circulation of wealth, concentrate wealth in a class of economic drones, create an imbalance between production and consumption, increase the cost of production at the expense of consumers, impose rigidity in costs and a bias toward short run planning in investment, encourage unproductive speculation, and trigger credit imbalances and inflation" (Crane, p. 19).
Conversely, Islam teaches that absence of riba ' 'provides a check on the exercise of private proprietorship, and tends to reduce exploitation of the labor force, while still permitting a free cooperative system" (Pomeranz and Haqiqi, p. 155). The need for social justice permeates Islamic teaching. For instance, expanded granting of consumer credit was recommended by Dr .Muhammad Uzair, Director of the International Center for Research in Islamic Economics (Saudi Arabia) at the 1976 Islamic Conference in Mecca; he suggested that interest-free consumer loans, premised on "living within one's means," should be small enough to be handled through an interest-free "residual fund" carried in the bank's current account (Crane, p. 49). In other words, consumer credit may be provided by Islamic banks not only to enable the borrowers to deal with personal or family emergencies and needs, but to assist them in raising their living standard.
The same orientation is reflected in another important concept, Zakah. In a western profit making enterprise, maximization of profit and minimization of loss represent the "bottom line." But Islamic economics is different. As Crane says: "Western economists generally cannot conceive of any measure that extends beyond the material world, whereas Muslims generally cannot conceive of any measure that does not." Zakah, the giving of one's bounty to others, represents one of the pillars of Islam. When he accumulates wealth and earns mole than he needs, the Muslim becomes obligated to pay Zakah to purify himself from the sin of avarice. Zakah, as an instrument of the redistribution of wealth, and of the creation of a society based on mutual assistance, also is being implemented in Islamic banking institutions.
Islamic economic desiderata may be summarized as follows:
Economic growth: An Islamic economy penalizes the accumulation of idle wealth through Zakah, and encourages rapid reinvestment in order to increase production and productivity.
Higher employment: Investment is encouraged in projects which produce wealth, rather than through relatively more passive fixed-income investments. The participative type of project is thought more likely to lead to higher employment, and to fewer negative social and economic effects.
Equal distribution of income and wealth: Zakah is designed to p(Omote more equal distribution of wealth. (Social justice, social cohesion, broth- erhood, and the harmony aspects of Zakah have origins in Tawheed.)
Preserving equilibrium and modesty: Wasteful consumption (lsraf) is discouraged, while abstinence from waste, and saving in the form of direct investment (Iqtisad) are encouraged.
The PLS scheme is thought important to the promotion of social justice and cooperative economic principles. Therefore, all Islamic banks have introduced PLS affecting depositors and borrowers; some banks are still engaged in the process of installing profit and loss sharing in their remaining operations. Several types of PLS arrangements may be found in Islamic banking:
Mudarabah ( trust-financing ): An Islamic bank, as a limited partner, pro- vides cash (capital requirements) to a borrower/entrepreneur who is free to use the funds in pursuit of the partnership's goal. While the share of each party in the profits and losses must be in percentages, and all expenses related to the partnership are deductible before profit distribution, the duration of such a scheme should not be predetermined. The funds must be in cash, and can be invested in trade or industry for an unlimited time- although either party may rescind the contract upon notice to the other.
Murabaha (cost-plus trade financing): In this contracting scheme an Islamic bank as a partner finances the purchase of commodities in return for a share in the profits realized when the goods are sold. However. if losses are incurred, the contracting bank may (or may not) share the loss-depending on the terms and conditions of the agreement. Repayment of such financing can be deferred or made in installments.
Musharaka (participation financing): An Islamic bank provides a part of the equity plus working capital of a project and shares in profits and/or losses.
Ijara (rental financing): This activity, which has provided the bulk of the operating income of Islamic banks, covers both long-term leasing/lease financing and short-term hire-purchase. In financing, the Islamic bank or its leasing company purchases a piece of equipment selected by the entrepreneur and then leases it back to him. In a hire-purchase arrangement the entrepreneur may partially purchase, and partially rent the equipment.
Since the legal basis of an Islamic bank's operations may differ in certain respects from Western commercial banks and interest-paying institutions, statutory reforms are being carried out in various Islamic countries. The major changes affect commercial law (rewritten in Pakistan), corporation law (considered to be rewritten in Pakistan), tax law (Zakah has been incorporated in Saudi Arabia and Pakistan), and the banking law (rewritten in Iran in 1984).
But this problem could show that even someone as skilled as Mr Brown at tailoring welfare to special situations is coming to the end of such possibilities. The sub-title of the book The Free Lunch is Fairness with Freedom and one of the solutions in it that would bring greater fairness is a Citizen’s Income (in the book: Citizen’s Royalty). This would be paid at a level amount to all citizens. It would provide a simple answer to Gordon Brown’s problems, make a permanent difference to the well-being of the poor and is workable.
Another budget item was green taxes. They are a major theme of the main
Sunday, March 25, 2007
EQUITABLE DEFENSE AVAILABLE TO MGM
“Chitty Chitty Bang Bang” was the subject of a copyright infringement suit recently filed by the trustees of writer Ian Fleming’s estate. The suit against MGM claimed that upon the expiration of the initial term of copyright the rights reverted to the estate, which made MGM’s continued distribution of the movie based on Fleming’s story an infringement of is rights.
MGM acquired the rights to “Chitty Chitty Bang Bang” through a book trust created by Fleming, but the renewal right passed directly to Fleming’s estate. Under 17 U.S.C. §304, renewal rights pass to the executor of an author's estate when the author and his immediate family die during the initial term of copyright. Fleming’s estate sued because the rights no longer existed in the book trust; they belonged to the estate.
The District Court held that although the estate controlled the copyright to the story, MGM had spent millions to promote the movie since the renewal term had gone into effect. Additionally, because the estate did not file the claim until years after the renewal term took effect, the Court held that the defense of equitable estoppel was available to MGM. Legislator 1357 Ltd. v. MGM, 452 F. Supp. 2d 382; 2006 U.S. Dist. LEXIS 67799.Any source
Friday, March 23, 2007
Earlier Cable & Wireless and CCT Global Communications argued on the subject concerning the issue of new licences that provided for the liberalization of the BVI telecommunications regime. The Director of CCT said that Cable & Wireless had charged its interconnection rates above its own retail tariffs, and had disrupted CCT's network by testing a wireless communications system over the same frequencies. Chief executive of C&W had denied the accusations of CCT.
Vance Lewis, CEO of Cable & Wireless, commented signing of the Memorandum of Understanding between the companies: "Interconnection is a necessary agreement linking two networks for the exchange of traffic. With the signing of this MOU completed, this paves the way to an open and level playing field in the BVI."
He also added that the remaining obstacle is the issuance of unitary licences to provide telecommunications services. After issue of these licences, the only thing to accomplish is the launch of bMobile, Cable & Wireless' mobile service in the Caribbean.
Both companies received the extension of their licences until March 31, 2007. The BVI government announced that it will open the market to competition in 2005. The new licences were expected to be issued by the end of January, when the 40-year monopoly of C&W expired; but the government did not take decision on how many new licences should be issued, so the BVI Telecommunications Regulatory Commission headed by Mr. David Iverson has been forced to give extensions to existing licence holders.
Other applicants for licences included BVI Cable TV, whose license was also extended to March 31, Digicel and Virgin Live Media. David Iverson, CEO of the Telecommunications Regulatory Commission, has commented: “The number of new licences to be issued is dependent on the Minister’s policy statement, which has not yet been issued. This policy statement is expected in the near future.”
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Remarks at the 2005 Arab Bankers Association of North America (ABANA) Conference on Islamic Finance: Players, Products & Innovations in New York City
Good morning. I am very pleased to be here today, and I thank ABANA for inviting me. From my perspective as a bank supervisor, conferences that promote greater awareness of important developments within international banking are essential. Islamic finance certainly qualifies as such an area, and I expect that today’s conference will provide an excellent opportunity to exchange information and ideas on current issues relating to this important sector.
My remarks this morning will focus on the regulation of Islamic banking services in the United States, and I preface them by noting that they are my own and do not necessarily reflect the views of the Federal Reserve. My approach will be to describe some of the most important domestic developments in the industry and to review how we, as U.S. bank regulators, have approached these developments so far. I will also offer some thoughts on the regulatory and supervisory challenges that accompany introducing Islamic financial services into the U.S. framework.
At the outset, I would like to emphasize that we—and here I am referring broadly to U.S. regulators—are open to Islamic financial products. Our mindset is to try to accommodate a variety of approaches to finance, focusing to the extent possible on the underlying substance—that is, focusing on what the implications for safety and soundness and consumer protection would be of a given product. Consistent with that approach, while we are committed to accommodating Islamic finance within the U.S. structure, we will hold Islamic financial institutions to the same high licensing and supervision standards to which we hold conventional ones. Although we are certainly in no position to take a stance on issues of shari’a interpretation, it is important that we become more familiar with the principles and practices unique to Islamic finance in order to make our supervisory and regulatory judgments.
Let me highlight that U.S. regulators have already started to make efforts to more fully understand and better foster Islamic finance. I have participated, along with a number of my colleagues at other regulatory agencies, in several conferences such as this one, both in New York and elsewhere, in an effort to stay abreast of developments in this market and to emphasize our continuing interest in this industry. Just last month, the Federal Reserve Bank of New York cosponsored a seminar on Legal Issues in the Islamic Financial Services Industry in Kuwait City. In addition, several of my colleagues from the New York Fed recently participated in a workshop hosted by Harvard Law School’s Islamic Finance Project to explore regulatory challenges to the growth of the Islamic finance industry in the United States. Those colleagues are also with me today, and will help me respond to any comments or questions that you may have after my prepared remarks.
At present, the approach of United States regulators to Islamic banking has been fairly ad hoc—with individual regulators dealing with specific issues as they are presented. This has been the case because the industry is still relatively new in this country. Despite the industry’s impressive growth in recent years, there are only a small number of providers and a relatively limited array of services available. At the retail level, Islamic banking has been mostly concentrated in home financing activities; not surprisingly then, a number of the issues raised with U.S. regulators have involved this specific business line.
The first major milestones for the provision of Islamic retail banking services in the United States were two interpretive letters issued by the Office of the Comptroller of the Currency — both letters were issued in the late 1990s in response to proposals submitted by the United Bank of Kuwait. The first approval letter which came out in 1997, involved a residential net lease-to-own home finance product. According to the proposed structure, the bank would purchase the property and hold legal title to it over the course of the agreement. Upon payment of the final lease installment, legal ownership would be transferred to the home buyer. The second OCC interpretive letter was issued in 1999 in response to a proposal to offer certain murabaha-based financing products. The proposal was designed to permit the bank to acquire assets (such as commercial inventory, equipment or real estate) and then resell those assets to its customers, on an installment basis, at cost plus a markup. The OCC’s analysis was that, because the purchase and sale transactions occurred simultaneously, the bank would be acting as a “riskless principal” in such transactions, and they were therefore permitted.
I think in each of these interpretive letters, the OCC demonstrated its flexibility by looking beyond the form of the transaction to determine that these structures were the economic equivalent of products already being offered by conventional institutions, and thus were permissible under existing banking law. For example, the OCC was able to look beyond the restrictions on bank ownership of real estate to conclude that, in these cases, the risks that drove the general restrictions were not present, because the transactions were equivalent to secured loans or riskless principal transactions. The New York State Banking Department followed much the same logic in issuing similar approvals for HSBC.
My purpose in describing these actions is to demonstrate how a regulatory framework can ensure compliance with the clear substance of general objectives, while still allowing for significant flexibility in how they are met. This flexible approach has fostered notable development of Islamic banking services in the United States. Although estimates of the potential size of this market vary widely, it is clear from the recent domestic growth of these services that significant demand exists for these products. HSBC, University Bank in Ann Arbor, Michigan, and Devon Bank of Chicago all now offer Islamic banking products in the United States. There are also several non-bank mortgage and finance companies offering these services. Freddie Mac and Fannie Mae have purchased shari’a-compliant mortgages from a number of these providers, supplying crucial liquidity that has enabled these Islamic financial institutions to originate additional mortgages.
Clearly, Islamic financial institutions have identified a real and substantial market need. The financial institutions of this country continually adapt to changing demographics and growing populations, be they Muslim, Hispanic or any other ethnically or religiously defined groups. When a customer base is growing, it is likely to receive attention from companies seeking to serve those expanding markets—either from specialized firms or from broad gauged companies looking to add a targeted set of services to their broader platform.
Despite the progress that has been made in the provision of Islamic financial services here in the United States, not all of the regulatory challenges raised by these institutions have been resolved—challenges that arise from looking to introduce Islamic financial principles into a regulatory framework that was structured without these principles in mind. In the United States, these issues are made even more difficult by our complex system of financial services regulation, which divides responsibility for supervision among a number of federal and state agencies.
Now, what are some of those challenges? One example is that banking organizations in the U.S. and the U.K. have recently sought approval to offer profit-and-loss sharing deposits; not surprisingly, regulatory complications have arisen. Profit-and-loss sharing deposits are typically structured so that the bank has something akin to a joint investment with the depositor, with returns based on a portion of the profits earned and not on a set rate. Most important, in contrast to a conventional deposit, if the bank loses money, so does the account holder. For this reason, offering a profit-and-loss sharing deposit is a particularly difficult proposition under a Western framework, which takes the certainty of deposit principal as a given.
In the United States, this has meant that deposits fully structured according to profit-and-loss sharing have not been permitted. SHAPE Financial Corporation has publicly described having to modify the deposit product it proposed to offer through University Bank, so that principal is guaranteed, and the deposit-holders share only in bank profits, not losses. Somewhat similarly, in the UK, I understand that the Islamic Bank of Britain has made various adjustments to fit its deposit product within the UK strictures. Even so, because its deposit products are covered by the U.K.’s deposit insurance system, customers are advised that their acceptance of full repayment in the case of a loss may not be in compliance with the shari’a.
There are several other features of U.S. banking law that could potentially hold back Islamic finance. One example is the set of restrictions placed on the range of permissible investments that commercial banks may hold. To ensure that banks do not assume unnecessary risk, their investments are generally limited to fixed-income, interest-bearing securities, which are prohibited by the shari’a. In addition, commercial banks must meet numerous disclosure requirements in order to comply with regulatory policy such as the Truth in Lending Act. These requirements typically mandate advance disclosure of APR and other terms that do not fit the principles on which Islamic finance is structured. On top of these issues, an Islamic financial institution that intends to finance the purchase of a home or a car according to murabaha or ijara structures may need to consider whether state law requires the institution to qualify as a licensed leasing company or auto lender.
The difficulty for Muslim consumers in obtaining shari’a-compliant insurance presents another hurdle to the accessibility of Islamic finance in Western markets. As I mentioned earlier, both Fannie Mae and Freddie Mac have purchased Islamically structured mortgages. However, both entities require property insurance and private mortgage insurance to be held on the securitized mortgages they purchase. This requirement forces customers of Islamic financial institutions to purchase traditional insurance for these mortgages that I understand is not compliant with the shari’a.
Beyond the legal issues regarding the activities a bank is permitted to conduct, bank supervisors have issues to confront in how to assess the safety and soundness of individual Islamic banks. A flexible approach to these issues corresponds with a larger trend toward a more adaptable, risk-oriented strategy in which supervisors are evaluating the specific risks and risk management practices of individual institutions. This manner of supervision can allow for an accommodative approach to Islamic banking that is based on its unique structure and related risks.
Let me elaborate on our supervisory approach. A key starting point in the process of supervising financial institutions is the design of a framework that sets out our supervisory expectations around such key areas as risk management, compliance and control, corporate governance and capital policy. Each country may do that a little differently. Some may be very rules-based in setting out how objectives are to be met, spelling out in considerable detail how a bank must operate.
In the United States, we do have extensive legal and regulatory requirements as I have discussed, and we do incorporate into our supervisory regime some very specific financial requirements (such as those around capital adequacy). But much of our regime is based on examiners making informed judgments on how individual institutions are managing and controlling the risks that result from their specific business strategies. We seek to understand each individual institution – what is its business strategy; what risks arise from that strategy (cutting across such categories as credit risk, market or investment risk, operational risk, and legal risks). We then ask such questions as: how well does management understand, measure, and manage those risks? and how sound is the overall governance and control structure of the firm? We look to train and develop our examiners so that they can make the necessary case by case judgments in a rigorous and fair way.
What we include in our broad framework of approach and how we train and develop our examiners to make those individual judgments is, of course, strongly influenced by supervisory practices developing around the world. I was a member of the Basel Committee for five years and found the sharing of information, and coordinated efforts to address areas of common concern, extremely useful in understanding how we can continue to improve our supervisory processes in the United States.
The opportunity for us to learn from others on supervisory approaches to Islamic banking is particularly great. Bank supervisors from other parts of the world are clearly ahead of us in confronting the challenges in understanding the risks facing Islamic financial institutions, and how they can be most effectively managed and controlled. The Islamic financial community is in the process of developing international supervisory standards and practices that reflect the specific needs of shari’a-compliant finance.
To this end, institutions like the Accounting and Auditing Organization for Islamic Financial Institutions and the Islamic Financial Services Board are serving a critical function. In fact, the IFSB recently released exposure drafts of capital adequacy and risk management standards for Islamic financial institutions. These standards will help regulators both in countries that already have well-developed Islamic financial systems and in Western countries, to understand and supervise Islamic finance.
The IFSB is also working to strengthen the corporate governance framework for the Islamic financial services industry, and the Federal Reserve Bank of New York will be contributing to this process through its participation in an upcoming IFSB-sponsored summit on this topic in Doha, Qatar. Of course, corporate governance issues have become particularly important to us here in the United States over the past few years, and some of the approaches we are taking to address this issue already have much in common with the practices of Islamic finance.
In the same way that shari’a supervisory boards of Islamic financial institutions were established in order to review the appropriateness of proposed investments, conventional institutions now too see the wisdom of this process. Thus, many of them have begun instituting “appropriateness” reviews that look beyond legal compliance and toward even more difficult issues of trust, transparency and the ethical nature of their transactions.
Some of the features of shari’a-compliant investing may also hold an appeal for Western investors. Islamic funds and investors screen out companies to exclude those that take part in activities that are not considered to be shari’a-compliant. In addition, companies that are overleveraged or that rely too heavily on accounts receivable are screened out. Although based on Islamic principles, these filters may serve a broader purpose of excluding firms that may present particular risk. These practices may also be attractive to many non-Muslim investors who are not only interested in the risk/reward relationship of their investment, but who are also concerned with issues of accountability and social responsibility.
In closing, let me emphasize that, as U.S. bank regulators, we have an open mind on how to approach the issues raised by Islamic finance. These issues may not always be easy to resolve, but we are prepared to rise to the challenge. In this regard, it is essential that we not adopt the mindset that the relationship between banks and supervisors is one of action and reaction. Instead, we ought to think collectively through the issues and work together to address them successfully. We recognize that the basic objectives of bank managers and bank supervisors are very similar to one another—we all want to ensure the safe and sound operations of a banking system. But to achieve that objective over time, we need a system that is dynamic – one that can adapt to changing customer needs. Meeting the customer demand for Islamic banking services will require that the industry and the supervisors have a particularly strong dialogue going forward.
Wednesday, March 21, 2007
It should be said that deputy governor is the second highest position in the British Virgin Islands. He usually acts in the absence of the governor, performing all the office duties and functions. The deputy governor supervises 17 departments, statutory bodies, as well as specialized government units, including the Attorney General's Office, Audit Department, Civil Registry and Passport Office, Governor's Office, Clerk of Executive Council, Human Resources Department, Office of the Legislature, Training Department, Police Force, and others.
Elton Georges was the deputy governor of the British Caribbean territory from 1983 to 2003, and now he came out of retirement. In making the announcement, Gov. David Pearey said he is delighted to welcome Georges back to this position. The Governor also said Georges will help him oversee the islands' affairs until a permanent appointment is confirmed, likely before the end of the year. George will help run the civil service in the jurisdiction, and will also act for Pearey in the periods of his absence.
"Mr. Georges served with distinction in that role for many years and contributed massively to the furtherance of BVI's interests in that time," Pearey said. "I greatly look forward to working closely with Mr. Georges."
The Governor added that he enormously appreciated the contribution of Mrs. Penn, her wise counsel and her dedicated service, and wished her success in the next phase of a very distinguished career. Also, Pearey made it clear that Georges' appointment is an interim one, and said he expects that a full-time appointment to the position would be confirmed before the end of 2007.
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Tuesday, March 20, 2007
Welcoming remarks by Dr Zeti Akhtar Aziz, Governor of the Central Bank of Malaysia, at the INCEIF Inaugural Intellectual Discourse “Islamic Finance: Issues and Challenges of Co-existence in an Entrenched Conventional System", Central Bank of Malaysia, Kuala Lumpur, 23 February 2007.
It is my great pleasure to welcome you to INCEIF Inaugural Intellectual Discourse Series. INCEIF has made remarkable progress within a period of less than a year. In 2006, INCEIF has gained the university status, it has currently enrolled 756 students from 39 countries, and it has entered into strategic alliances with a number of industry training and education providers from the Middle East, South East Asia and the West. Indeed, INCEIF has received an overwhelming response. As an institution of higher learning dedicated to the development of human capital for the growing global Islamic finance industry, INCEIF will have an important role in meeting the increased demand for talent and expertise for the industry.
The topic for today's deliberation, "Issues and Challenges of the Co-existence of Islamic Finance in an Entrenched Conventional System", is most relevant in the currently highly competitive financial services industry where new challenges and opportunities are continuously emerging in this era of globalisation and of rapid change that is also driven by advances in technology.
Today's initiative brings together Islamic finance experts and scholars to deliberate the issues confronting Islamic finance in an environment where the conventional finance is dominant and highly entrenched. The primary objective of today's Inaugural Intellectual Discourse is to explore the prospects for Islamic finance which has now reached a stage of development in which it is now no longer regarded as a niche product serving a specialised market. Today, it is a robust industry that operates in more than 60 countries, and it is a viable form of financial intermediation that is competitive and resilient. Islamic finance, nevertheless faces many challenges with respect to its product offering, its distinctive ethical and moral dimension, and its relevance to all customers.
The Islamic financial system in Malaysia has evolved as a competitive component of the overall financial system, complementing the conventional financial system as a driver of economic growth and development. Malaysia will continue to foster the expansion of the dual banking system where both, the Islamic and conventional systems operate in parallel to deliver innovative and competitive financial products and services. The global experience has however shown that institutional and development financial infrastructure, the broadening and deepening of the financial markets, and a rigorous legal and regulatory framework is vital for the soundness, stability and resilience of the financial system. Developments in both domestic and international economic and financial conditions have from time to time tested the resilience of financial systems. Thus, Islamic financial institutions will not only be assessed by their Shariah aspects, but also by other factors including their effectiveness and efficiency, their resilience and their ability to evolve and reinvent to meet the challenges of the continuously changing demands as we advance forward.
After more than two decades of experience in the development of Islamic finance, we are now seeing the international dimension of our Islamic financial system gain significance. This has followed the increased foreign presence and participation in our domestic Islamic financial system. Malaysia has also ventured to participate in international financial markets and in term of presence beyond our domestic borders. More specifically, three new foreign Islamic banks are now participating in our domestic financial system. Following further liberalisation measures, there is also increased foreign participation in our domestic Islamic financial institutions. Our takaful industry has also become one of the success stories in Islamic finance. In the four new licences issued recently, it has comprised of joint ventures with foreign participation. The Malaysian bond market has also been liberalised to enable foreign entities to raise funds in our domestic market. Our experience in launching the first Sukuk has drawn significant interest by corporates and sovereigns for raising long-term financing based on Islamic structure instruments.
Following these developments we are now entering a new phase in the development of Islamic financial system in Malaysia with the new initiatives to promote Malaysia as an International Islamic Financial Centre. This aims at strengthening our economic and financial inter-linkages and thus promoting greater trade and investment across borders. This is therefore the beginning of a new phase of development for Islamic finance in Malaysia as it becomes more integrated with the international financial system. We have set high standards in market coverage and broadening of Islamic financial products beingoffered to the market. The challenge is for the financial institutions to have a more extensive outreach. Islamic finance must promote greater financial inclusion involving all levels of the community. Opportunities also need to be created for Islamic financial products to have an outreach to the small and medium-sized enterprises. Moreover, financial instruments structured under the Salam, Istisna' and Musyarakah contracts need to be designed to stimulate activities in those sectors such as agriculture and manufacturing where there is limited participation by conventional finance. We need to reach those segments of society and economic activities that have not fully benefited from the success of Islamic finance.
As part of the global development of Islamic finance, of equal importance is the supporting international architecture that is evolving. Both AAOIFI and IFSB have contributed significantly to the development and the harmonisation of accounting and prudential standards. This will allow for the potential of strengthening the inter-linkages across borders to take place.
The conventional banking as a more matured market has also continued to grow and prosper in Malaysia. Since the beginning, it has attracted dominant global players. There are fourteen 100% owned banks in our financial system that accounts for almost one third of the market share. In the insurance sector the foreign participation is even greater. In conventional finance, Malaysia is therefore already highly integrated with the international financial system. This has been reinforced by the progressive liberalisation of our capital account which now allows for the free inflow and outflow of funds. Our financial system has therefore facilitated Malaysia 's strong international economic and financial linkages which have for several decades contributed to our economic growth and development.
In this competitive global environment, new challenges and risks can be expected to continuously emerge. The growing world wide participation in Islamic finance as a form of financial intermediation in this highly challenging environment has demonstrated its viability and competitiveness. This dynamic environment in which we operate will thus require continued developments to be pursued on all fronts.
The discourse among the expertise in the field will not only provide us with further insights into the issues and challenges of coexistence not only in our domestic systems but also in the international financial system. This will contribute to the awareness and understanding of the journey for the sustainable development of Islamic finance.
Monday, March 19, 2007
Sunday, March 18, 2007
The BVI-based fund of funds charges a 1.5% management fee and 20% performance fee, with a $100,000 minimum investment requirement.
The Specialized fund is already the second fund of funds managed by Plenum Group. The first one was a Pan-Asian fund of funds, dubbed the Plenum Asia Dragon Fund.
The main subsidiaries of Zurich-based Plenum Group are:
- Plenum Investments AG – an international investment advisor whose main business is structuring and management of investment products in the fields of hedge funds and equities with or without capital guarantees;
- Plenum Asset Management, formed in 1993 and now providing the following services to the private clients: brokerage and safe custody, investment products, asset management, investment advisory and wealth structuring;
- Plenum Prudential AG, specializing in life insurance solutions;
- Plenum Securities AG, a 100% affiliated subsidiary of Plenum Holdings AG in Zug, and an associated member of the SWX Swiss Exchange.
Article any source
Saturday, March 17, 2007
When the single farm payment was set up, farmers were given the right to trade subsidy entitlements between themselves which makes sense as it allows individual farmers to adjust their own businesses in the light of their assessment of market conditions. Farmers started trading among themselves, but the profitability brought in a wider range of investors. Open auctions are being held, while other investors are buying rights to subsidies over the telephone through brokers or on internet sites. You can find out more at WebbPaton's web site: Entitlement
You have to be classified as a farmer to receive subsidies, but you only need hold a lease on a minimum of 1.7 acres for ten months of the year and never have to visit it. Scottish landowners are now renting out tracts of rocky highland for as little as £5 an acre per year.
The market that has developed does enable farmers to raise funds to retire or to invest in their business. But that could have been achieved by converting subsidies into a marketable interest bearing bond which is what many analysts advocated.Any source
The Financial Times commented, 'His near-umbilical attachment to the country's farmers throughout his career, which included a spell as agriculture minister, means he can at least count on them to be saddened that the Chirac era is coming to an end.'
Whether any of his possible replacements will take a different view of the French national interest remains to be seen.Any source
Thursday, March 15, 2007
Human Resources Development in Islamic Banks
Islamic Banks assess their needs for manpower recruitment with the company’s organizational goals. Open positions are advertised the National Dailies. The advertisement mainly provides a description of the positions, scale of pay, age, nationality, educational qualifications, experience and other terms and conditions of the application and service. Current employees may apply to fulfill the advertised open positions. In terms of age of a candidate, normally he shall not be less than twenty years and more than thirty years of age at the time of appointment by direct recruitment as an officer, and not less than eighteen years and more than thirty years of age at the time of appointment by direct recruitment, as an employee other than an officer in the service of the banks. However, in special cases, the employer can relax the upper age limit for reasons to be recorded in writing. In terms of nationality, Islamic banks do not appoint any person to any post unless he is a citizen of Bangladesh. Physical fitness is another important factor in the recruitment of personnel at a bank. Thus an applicant must be declared physically fit by the Medical Officer of the bank or some other Medical Authority specified by the bank on their behalf.
Need for Training
Training is widely considered as an important tool for enhancing a person’s Attitude, Skill and Knowledge (ASK). It is the process of assisting a person for developing his efficiency and effectiveness at work by improving and updating his professional knowledge, by developing skills relevant to his work and growing appropriate behavior and attitude towards work and people. Training is, therefore, an effective tool for Human Resource Development (HRD) as well as for achieving the goals of an organization.
Islamic banking is a Shariah-based interest-free banking system. It has to operate in a way that benefits society as a whole. Its features and functional procedures are quite distinctive than that of the traditional banking system. To satisfy the objectives of the Islamic banking and to face the challenge of the next century, the job of Islamic banking is becoming more complicated and more technical day by day. The personnel of Islamic banks require special ASK, which can be developed through proper training. Obviously, that a large number of properly trained employees would result in increased output and reduced costs, further resulting in maximum utilization of human resources, which will ultimately benefit the entire nation.
The four (4) Islamic banks of the country also have recognized the importance of training for their employees. This can be substantiated from the following paragraphs:
Islami Bank Bangladesh Limited (IBBL) has mentioned that “since our system is new, training is considered to be sin-qua-non for successful operations of the Bank. Before establishment of the Bank, Bangladesh Islamic Bankers’ Association (BIBA) conducted several Orientation Courses on Islamic Banking in which senior and mid-level bankers, lawyers, chartered accountants, media-men, management experts participated. Most of the officers of the Bank were selected from their list. Training academy of the Bank has also been established. Orientation and skill development courses are conducted regularly. Special attention is paid to on-the-job training on the basis of job rotation plan. Besides, the officers and employees periodically attend seminars and symposiums organized by the Bank and other bodies.
Similarly, Al-Arafah Islami Bank Limited has mentioned that “Since Islamic banking is different in many respects than that of conventional system of banking, the officers are, therefore, required to attain thorough knowledge about the Islamic banking system in order to explain the same to the clients properly. Therefore, effective training program for the officers are being undertaken. Side by side, on-the-job training is also being imparted specially for the new employees. The Board of Directors is aware that the objectives of the Bank might be defeated if the officers don’t practice the Islamic rituals in their daily life. Therefore, all officers are being motivated to be practicing Muslim in their daily life apart from saying prayer in Jamaat. It may be mentioned that every branch has hours at the time of prayer. Nevertheless Dars-e-Quran and Hadith is also being held after Asar-Prayer everday”.
The Social Investment Bank Limited (SIBL) has also recorded that “training is the basic need for the development of Human Resources. Accordingly, SIBL has decided to establish one training academy in the name of University School of Social Economics and Management. The new recruits (officers) would be inducted with basic foundation training including advanced training courses to get them fully acquainted with the basic concept and objectives of SIBL. There is an ultimate aim of development this training academy to a real-life university which will be staffed by eminent professional bankers, economist and scholars from home and abroad.”
Al-Baraka Bank Bangladesh Limited has also indicated the necessity of the training mentioning that “Despite their unequivocal commitment to provide only Islamic banking they were unable to deliver full Islamic finance which was a major disappointment. The Shariah Council had, once again, pointed out these failures.”
A.K.N. Ahmed, Former Governor of Bangladesh Bank is of the opinion that each bank officer and stuff should subject to intensive training on banking ethics and customer service before they are put to the job. He also suggests that the activities of training academies should be revived to ensure that each bank is getting proper output from these institutions.
Conceptual Framework for Training Management
Training is provided to the employees of an organization in order to achieve the goals of the organization. Thus, for any management training exercise, the goals and objectives of the organization must be taken into consideration. In fact, management of training gets its direction from the organizational goal set by the management at a macro level. This implies that the first thing that comes into consideration for training management is the organizational goals and objectives.
Organizational goal setting is followed by the formulation of a training plan based on a training needs assessment. Once a plan is in place, management has to execute the plan. At this stage training is provided to the trainees on a needs assessment basis. The training institutes conduct workshops and seminars. The final process of a training management system can be illustrated.
Types of Training
Training in Islamic banks may be of three types: (i) Ideological (ii) Theoretical and (iii) Practical. Ideological training may be related with the holy Quran and Sunnah and Shariah issues on banking. The practical training may conducted through discussions and exercises on banking issues in a classroom setting. In addition, some training may be administered while the employee is on the job, to allow the employee to learn Islamic banking through practice. The theoretical training may equip an employee with Islamic knowledge and values, which is considered to be essential for Islamic banking.
Theoretical training may provide a conceptual clarity on the understanding of Islamic banking. However, practical training of Islamic banking provides the skills and art necessary to perform a job. An employee should have all types of training in order to best prepare him to perform his job requirements.
Possible Areas of Training
Since Islamic banking mainly practices general banking, investment and foreign exchange, training should focus on these three areas of banking. Islamic banks may consider the following areas while devising their training programs:
1. Induction / Foundation Training
2. Banking Laws and Practices
3. Foreign Exchange and Foreign Trade
4. Investment Management
5. Branch Management
6. Customer Services Development
7. Audit and Inspections in Banks
8. Islamic Economics and Banking
9. Islamic Banking and Insurance
10. Performance Budgeting
11. Managing the Managers
Furthermore, Islamic banks need to be careful to tailor the training session to the specific employee’s needs. Training should be designed to address the needs of senior management all the way down to the line workers in order to be most productive.
Islamic banking needs morally sound customers for its smooth operation. Islamic value oriented customers are essential for growth in Islamic banking. Therefore, value oriented customers training may be another main area of training for Islamic banks.
The Lecture Method
Quite a good number of training methods generally used in academic and training institutions can be effectively applied to personnel development of Islamic banks. A brief discussion on the lecture method may be relevant for Islamic banks as well.
Lectures have several advantages. One instructor can handle a large class. In addition, little or no equipment is needed. Finally, a well-prepared lecture can be repeated without any great effort on the part of the lecturer, thereby allowing large groups of people to be trained on the exact material in smaller group forums.
Lectures are especially valuable for introducing a new subject and it allows the trainees to interact in the process, which would otherwise be very intimidating to them. Where knowledge is advancing rapidly, textbooks may not be available. Lectures awaken a critical attitude in trainees. Lectures can provide aesthetic pleasure inspiring a large number of trainees in an economical way.
The main disadvantage is that knowledge gained by passive listening to a factual lecture, without some participation by the class, is not readily assimilated, and boredom sets in very quickly. The lecture sometimes offers no opportunity for class participation and is, therefore, of little use in providing skills. Thus there are advantages and disadvantages so a proper mix has to be found in order to be effective.
He recently outlined three scenarios for the future of the CAP. The first was to defend the status quo and argue for the biggest possible ongoing payments to farmers based on their contribution towards enhancing the environment. He expected this to be the strategy adopted by COPA, the European farmers' organisation. But (and these are my words) it is well known that COPA is something of a political dinosaur that has lost the CAP plot. Environmental groups are not going to be taken in by a continuation of existing subsidies by other means.
A second option was to advocate a more integrated rural policy, with a much bigger share of aid devoted to correcting market failures to stimulate a more diversified rural economy. Buckwell was, of course, one of the architects of the EU's shift towards a rural policy, although it suffered a severe setback with the 2006 budget settlement which actually cut back Pillar 2 funding for rural development. Its success would also depend on profitable commodity prices and national governments matching EU contributions towards rural development.
A third option would be to ditch the CAP and create what Buckwell has provisionally entitled a European Food and Environment Security Policy. Its objective would be to enable the production of socially optimal quantities of high quality food, energy, biodiversity, landscape and so on.
The problem would be, who decides what is 'socially optimal'? If it's not the market, it's the government, influenced by the farm lobbies, and that is what got us where we are - which is not a good place to start from.Any source
Farm commissioner Marian Fischer Boel raised the issue on her recent visit to India. She said, 'These products are not staples and the European exporters have a legitimate interest in being able to supply the Indian market. Could we not leave it up to Indian consumers to decide when to buy domestically produced wines and spirits, and when to buy something else?'
The Indian wine industry claims that a reduction in tariffs would 'destroy' the emerging wine industry with a wave of cheap imports. Indian wine makers would prefer a staged reduction in duties, favouring higher quality imports.
An Indian red at, say, 950 rupees (£11.10) a bottle, can be a third of the cost of an Australian shiraz. The Indian Government's stance on import duties means that foreign access to the £930m alcoholic drinks market, growing at nearly 30 per cent a year, is severely curtailed. While India's basic import duties on wine and spirits are 100 per cent and 150 per cent respectively, federal and state taxes can push tariffs as high as 264 per cent and 550 per cent.
The EU has a fair chance of success at the WTO disputes settlement panel which has ruled against Japan, South Kore and Chile over discriminatory spirits taxation regimes. Getting into the Indian market could help drain the European wine lake and taking on a foreign country is a welcome distraction from attempts to reform the EU wine regime which are meeting substantial resistance, most recently from the European Parliament.Any source
The British Virgin Islands where many Chinese companies register for tax purposes remain the second in the list of the top three sources of foreign direct investment in the economy of China. In January, BVI companies invested more than one billion USD in Chinese economy. The commerce ministry of China did not provide FDI figures in February. The other
major investors are Hong Kong, - the usual leader by FDI in China, - and Japan.
In 2006, actual foreign investment in China was 69.5 billion dollars, that is down 4.1% compared to 2005. However, if the financial sector of economy were not to be taken into account, the figure totalled 63 billion dollars – that is a 4.5% rise.
Article any source
Tuesday, March 13, 2007
2 weeks ago the Federal State Statistics Service (Rosstat) provided data on 2.7% increase of foreign investments in Russia in 2006, to $55.1 billion from 2005. In 2005, foreign investment in Russia soared 32.4%. Foreign direct investment in Russia grew 4.6% in 2006 to $13.68 billion. In 2005, FDI in Russia grew 38.8%.
The British Virgin Islands are among the biggest direct investors in Russia in 2006, along with Cyprus, Britain, the Netherlands, Luxemburg, France, Germany, Switzerland and the United States. All these countries account for 84.8% of the whole foreign investment stock in Russla,
including 85% of FDI stock.
By the information provided by Rosstat, the stock of foreign investment in Russia increased by 27.8% to $142.9 billion at the end of 2006. This figure included 49.1% of other investments, 47.5% of direct investment and 3.4% of portfolio investment, compared to 53.8%, 44.5% and 1.7% respectively in 2005.
Article any source
Friday, March 9, 2007
A Takaful policy is a kind of financial transaction, which is based on the general principles of contract. Since a Takaful is a kind of contract, the formalities for the formation of a valid policy are based on the formalities required in other form of commercial contracts. The formalities before the conclusion of a policy required by the Takaful companies of the contemporary world are based on general principles of al-‘Aqd (contract). Under Islamic Law, to form a Takaful policy, there must be a subject matter at risk, upon which (subject matter) two parties (operator and participant) mutually agree by Ijab (a proposal) and Qabul (an accpetance) in which both parties undertake to share the responsibility, to provide a reasonable material security against unexpected but defined risk on the subject matter. In other words, the formalities in a Takaful policy are Ijab (the proposal) and Qabul (an acceptance), issuance of a cover note (a temporary document for a policy provided by the operator to the participant) and payment of Takaful contribution (al-Musamahah) which are further analyzed as follows:
In a Takaful policy, the person whose subject matter is at risk is the one who should approach the operator to undertake a responsibility (in consideration of contribution) for the material securing against an unexpected but defined risk on the subject matter. Therefore, in a Takaful policy the owner of the subject matter (which is at risk) is the one who makes a proposal for the policy.
The owner of the subject matter according to his own wish may make a proposal to his wish. But for the purpose of a better dealing between the operator and the participant, the proposal form may be provided (with necessary questions for information) by the operator, and the proposer will complete the form with the correct and necessary information, which are material to the policy. In making a proposal, the proposer is under an obligation to disclose any defect in the subject matter likely to affect policy. Such an obligation can be justified by the following Prophetic sanction:
"Narrated by Hakim bin Hizam (r.a.), the Holy Prophet (saw) said: If they speak truth and mention defects, then their bargain will be blessed, if they tell lies and conceal the defects, they might make some financial gain but they will deprive their sale of Allah’s blessing."
'Uqba bin Amir (r.a.) also illustrated to the same effect that:
"'Uqba bin ‘Amir (r.a.) said: "It is illegal for one to sell a thing if one knows that is has a defect, unless one informs the buyer of the defect."
In the proposal form there should not be any declaration or information given by the proposer with evil purpose to deceive the operator while hoping for a gain something wrongfully. This is also indicated in the saying of the Holy Prophet (saw):
"Narrated by Abdullah bin Umar (r.a ), A person came to the Prophet (saw) and told him that he was always betrayed in purchasing. The Prophet (saw) told him to say at the time of buying, "No cheating."
In a commercial contract a proposal needs not to be made through writing or printing but an oral proposal through telephone or telex may also be held valid. Can the same method be applied in making a proposal for a Takaful policy? In other words, can a proposal be made other than in writing (i.e. verbal, telephone or telex)? It is submitted that, despite the fact that a Takaful is a kind of commercial contract its nature is different from other commercial contracts. It deals only with finance in which if a proposal is allowed to be made other than in writing or printing the terms, conditions, declarations or information contained in the proposal may be altered at any time during the policy period which may create a dispute between the participant and the operator and may also give an opportunity to the participant to seek for a co-operation in the policy with an evil cause or to the operator to escape the liability. There is no room for the one who seeks cooperation with an evil cause nor for the one who escapes an undertaken liability as Allah (swt) commanded in the following verses respectively:
"But help you not one another in sin and rancour."
"O you who believe! Fulfil your (undertaken) obligations."
In another verse, Allah (swt) ruled out that, there is no recognition for those who create destruction. Allah (swt) said:
"But they (ever) strive to do mischief on earth. And Allah (swt) loveth not those who do mischief."
It is concluded in the light of the above analysis that, a proposal for a Takaful needs to be made in writing and printing (in order to avoid any kind of mischief or dispute between the operator and the participant). Can the proposal be made through electronic media (fax, e-mail, telegram or any other printed methods) or by post which may be fall within the ambit of a written proposal? Certainly, these media used by one for making a proposal may also be regarded as written. This is because, a written proposal means any kind of visible document. The purpose of the requirement of such a written proposal is to have a document for the future proof if necessary. Hence, a proposal may be accepted if it is in writing or of a similar in nature (i.e. fax, e-mail, post, printed form, telegram, Internet, etc.). But there may not be any justification to accept an oral proposal for the sake of avoiding any dispute that may happen between the operator and the participant.
Once a proposal form is completed with appropriate information and declaration or clauses, the proposer has to sign and return it to the authorized person of the operator for further evaluation and make decision whether to accept or reject the proposal with the given terms and conditions, declarations, and information. A proposal made by the proposer does not bind him unless it is a Qabul formally (accepted) by the operator. Therefore, a proposer has an option to revoke the proposal not only until it is received by the operator but it may be extended until the moment it is formally accepted by the operator. Once therefore, it is accepted the proposer should be bound by it and may not have any right of revocation (unless the question of Khiyar (options)) arises. This is because the commandment of Allah (swt) to fulfil the obligation arises only when a promise is concluded by an offer and an acceptance. Allah (swt) commanded to the effect:
"O you who believe fulfil (all obligations)."
In a Takaful policy, the operator generally makes an acceptance. But in some situations an acceptance may be made by the intended policy holder if the operator does not agree to the earlier proposal made by the proposer and he adds some additional terms and conditions will be regarded as a counter offer to the intended policy holder. The mode of acceptance of a proposal may be inferred by any of the following conducts of the operator:
i) Issuance of the certificate;
ii) Issuance of a temporary cover note;
iii) Issuance of a receipt for the first payment of contribution; or
iv) Any kind of acceptance through (fax, letter, telex, telegram, e-mail and Internet) to the proposal of the intended policyholder.
Once an acceptance is formally made, it cannot later be revoked. This is because a contract is final once a proposal and an acceptance concluded it. Once the contract is final the parties concerned are bound by it for its Ada’ (performance). This is justified by the Qur'anic sanction:
"O you who believe fulfil (all) obligations."
The acceptance may be cancelled even after the acceptance is made if the operator is able to prove a breach of utmost good faith exists in the proposal made by the policy holder. In this case the operator shall have a right of option whether to cancel the certificate or to retain it with a reasonable remedies if any. This is justified by the following Prophetic injunction:
"Narrated by Hakim bin Hizam, the Holy Prophet (saw)) said: If they speak truth and mention defects, then their bargain will be blessed, if they tell lies and conceal the defects, they might gain some financial gain but they will deprive their sale of Allah’s blessing."
Aqd Ta’min al-Mu'aqqat (Issuance of Cover Note)
In a takaful policy, the issuance of the cover note does not give rise to a permanent enforcement. It is a mere receipt issued by the operator or his authorized agent which may act as a temporary document for a valid policy in force. A cover note is generally issued for the general policies (property, motor, business, etc.)
Sometimes, it may not be possible for the operator to issue a policy soon after the agreement is concluded between the operator and the participant. If the operator delays in issuing the policy and if the subject matter of the policy happens to face the risk before the issuance of the certificate then what would happen if the operator denies his liability to the policy holder because of non-existence of any document (issuance of certificate issued by the operator). In this situation, the policy holder may also be unable to make a claim against the risk on the subject matter because of the inability to prove a document (Takaful certificate) for the policy. In such a situation three negative consequences may arise:
i) it may give an opportunity for the operator to deceive the policy holder. In Islamic law, there is no room for the parties in the transaction to deceive each other. This is indicated in the saying of the Holy Prophet (saw):
"The Holy Prophet (saw) said: Deception would lead to the hell (fire) and whoever does a deed which is not in accordance with our tradition, then that deed will not be accepted."
ii) The policy holder may be deprived from a fair claim against the risk on the subject matter while giving an opportunity for the operator to gain which is unacceptable in the Islamic teaching as indicated in the Holy Qur'an. Allah (swt) says:
"O you who believe! Eat not up your property among yourselves in vanities, but let there be amongst you traffic and trade by mutual goodwill…"
iii) Mischief may take place between operator and policy holder which is also not appreciated in the eyes of Allah (swt). He says:
"And seek not (occasion for) mischief in the land. For Allah (swt) loves not those who do mischief."
To avoid the aforementioned evil, injustice and mischief, it is important for the operator to issue a temporary cover note for the period until the actual certificate is issued. This temporary cover note may act as a proof for the policy holder and enable him to stand on his own with a document (cover note) by which he may also make a fair claim against the risk (if any) occurring on the subject matter before the actual issuance of certificate. To hold a written document for the proof of a financial transaction (including a takaful policy as it is also a financial transactions) is justified by the repeated Qur'anic sanctions. Allah (swt) says:
"O you who believe! When you deal with each other in transaction involving future obligations in a fixed period of time, reduce them to writing, let a scribe write down faithfully as between the parties, let not the scribe refuse to write as Allah (swt) has taught him so let him write."
A written document plays a role for the most reliable proof is again justified by the Qur'anic sanction in which the offenders will be called in question relying on written record (evidence). Allah (swt) says:
"And they make into females angels who themselves serve Allah (swt). Did they witness their creation". Their evidence will be recorded and they will be called to account."
A cover note may be issued for a temporary period of time. The duration for a cover note in force could be determined by the operator and to be stated it in the cover note itself. However, the validity of a cover note could be continued until it expires. A cover note may cease its validity even before it expires that is when the operator issues the certificate before the expiry of the cover note. Therefore, with the existence of an issued certificate the temporary cover note may no longer have any legal effect.
Contribution in a Takaful contract is a monetary consideration (al-‘Iwad) from the participant’s part which is an obligation arising from a contract between the participant and the operator. A takaful contract of mutual co-operation in which the consideration is required not only from one party but from both parties in which the operator is also equally bound by the contract and that in indemnity or benefit. The obligations of the settlement of the respective considerations in a transaction of a mutual cooperation is justified by the commandment of Allah (swt):
"Help you one another in righteousness and piety."
This verse of the Holy Qur’an renders a duty to mankind to provide their mutual cooperation on a bilateral basis. Furthermore, in takaful contract, once the policy is concluded the participant is regarded as a principal debtor and must settle the agreed contribution to the operator accordingly. In such a transaction the participant is under a duty to pay the contribution regularly according to the terms and conditions as stated in the certificate. This is justified by the repeated saying of the Holy Prophet (saw) in which the principal debtor is urged to settle his debt on time. The Holy Prophet (saw) said:
"Abu Rafa’ reported that: the Holy Prophet (saw) said: give it to him and verily the best of man is he who is best of them in payment of it."
The Holy Prophet (saw) also said:
"Abu Hurairah (r) reported.. that a man demanded of the Holy Prophet (saw) for a repayment of a debt…. And verily the best of you is he who is the best of your in repayment of loan."
A Takaful policy is a binding contract, and therefore, the performance of consideration from both parties (the participant and the operator) through the payment of contribution (by the participant) and the indemnification (by the operator) are obligations which must be fulfilled. This is justified by the Qur'anic sanction. Allah (swt) says:
"O you who believe fulfil (all) obligations."
Although a participant in a policy is treated as the debtor who is under a contractual obligation to settle the agreed contributions on time, it is not possible always to settle it debt on time due to some unexpected reasons. In such a situation what could be the legal position, of the participant and also the policy itself? Under Islamic law, if a debtor due to some logical reason is unable to settle the debt on time, the debtor should not be pressured by the creditor rather he is advised to extend a reasonable time for the settlement. To waive the debt with a kind heart. The Holy Prophet (saw) said:
"Abu Qatadah (r.a ) reported: I heard the holy Prophet (saw) have said: Who so gives respite to a debtor or grants him remission Allah (swt) will save him from the calamities of the resurrections day."
The Holy Prophet again said:
"Imran bin Hussein (r.a.) reported that the Messenger of Allah (swt) said: who so has his dues from a way and he gives time to him (for payment), he will get his reward of charity every day."
It is therefore, suggested that in a Takaful policy if the participant is sometimes unable to pay the agreed contribution on time the participant should neither be penalized nor the policy be forfeited with paid-contributions. But the participant should be given a reasonable time for the settlement of the unpaid contributions and the enforcement of the policy should be continued according to the terms and conditions contained in the certificate.
However, if the participant fails to settle the unpaid contributions within the given period, the policy may be discontinued. This is because it is a contract of mutual cooperation. If, therefore, one party is unable to provide his agreed cooperation then it is unfair to the other party to continue the transaction with unilateral cooperation. Thus, if the policy is terminated due to failure of the payment of the contributions by the participant, the paid contributions should not be forfeited rather it is suggested here that, the paid contributions should be returned to the participants with the share of profits made over the paid contributions after deduction of the charges due to the operator. The charges to the operator are the debt due on the participant which must be deducted from the paid contribution as justified by the saying of the Holy Prophet (saw):
"Abu Hurairah reported that the Messenger of Allah (swt) said: Who so becomes insolvent and afterwards a man (creditor) takes hold of his exact property, he is more entitled to it than others."
It is again suggested that, under Islamic law, there is no circumstance which may render a policy forfeited with paid-contributions even if the participant commits a breach of good faith or any other offences. This is because an insurance policy is a financial transaction in which the paid contributions are the legitimate property of the participant which cannot be forfeited just because of his disfavourable acts. The participant may be charged for the wrongful acts (if any) in different ways by different laws but not by forfeiting his paid-contributions or depriving him (participant) from his lawful right paid-contributions. The paid-contributions are al-Amanah (a trust) to the operator, and they, therefore, should be due to the participant. This is because, under Islamic law, there is no justification for the trustee to refuse to render the entrusted articles to their proprietor once the depositor rightfully demands from the trustee. This is justified by the Qur'anic injunctions:
"Verily Allah (swt) does command you to render back your trusts to those to whom they are due."
Also Allah (swt) warned against those who betray a trust. Allah (swt) says:
"Contend not on behalf of such as betray their own souls; for Allah (swt) loves not one given to prodigy and crime."It is therefore, submitted that under no circumstances in Islamic law can the paid-contributions of the participant be forfeited, but a deduction may be made out of the paid- contributions and the profit made from them so as to cover the charges due to the operator if any. It is thus concluded here that, the takaful (Islamic Insurance) practice in the contemporary economy does not base it’s operations only on al-Mudharabah technique but it also involves several other Shari’ah justified nominate 'Uqud ( contract).