New Postal Codes to be Launched Today in BVI

The new postal code system is expected to be implemented today in the British Virgin Islands, during the ceremony which will begin at 4.45 pm.

Benefits of new postal code system including more efficient mail service were already discussed in September when BVI Government has announced on the adoption of the postal code system in the BVI. The three main benefits of implementing postal codes were also stressed during a press briefing at the chief minister's office by Postmaster General Kevin Smith. These are commercial recognition for online shopping, more efficient way of sorting and processing local mail and international recognition.

The local postal service worked along with the United States postal service to change the way mail has traditionally been transported to the BVI. Smith stated that in the past a dispatch would take from 15 to 45 days depending on the season or the route, while now the dispatches are coming to the BVI from the two transit points in New York and Miami within 3 or 4 business days.

Smith has pointed at the main difference between the old and newly implemented postal systems: traditionally every branch and sub-post office in the BVI was responsible for sorting its own mail, but now, with the introduction of the new code, there will be a hub where all mail will be processed, and the branches will focus on retail services.

The postal code structure is based on the fact that the codes which are to be revealed today will be physically linked to a post office or one's postal address. Also, by words of Smith, each island including Anegada, Virgin Gorda and Jost Van Dyke will have different code, and the major island Tortola will have three zones – East, Central and West – each having different postal code. There is also enough place allowed within the numerical system of the code for expanding with the growth of the postal infrastructure and network.

Thorough public education campaign has been planned in an effort to get the public to utilize the codes as quickly as possible. It is, however, anticipated that only 10% of the population would start using the codes in the first year and a half.

Smith also informed the publics about his intention to bring the best service in the region, and in that connection to open an Express Mail service in 2007. For this, the BVI post office is working with a US based private company to develop a data base that would feature to some degree GPS mapping and provide house delivery service.

Brian Obvi,
Offshore Analyst

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Too many errors in CAP payments

In its annual report on the EU's farm accounts in 2005, the Court of Auditors 'found that CAP expenditure [€48.466 billion last year] was still affected by a material level of error which is not detected or prevented bt the supervisory and control systems.' It noted 'weak internal controls for the majority of EU expenditure, both within member states, and at the Commission, and a high incidence of errors in the underlying transactions.'

Greece was singled out as the worst offender. The Court declared that the quality of inspections in Greece was low and that the reporting of results was unreliable. Farmers' unions are responsible in Greece for inputting all data into the computer system, and can make changes whenever they want - without the changes being recorded. Not surprisingly, instances of farmers exaggerating the size of their land are not uncommon.

All of the olive oil subsidies examined in southern countries were found to contain either an overpayment and/or one of more formal errors. This led the Court to ask whether the Geographical Information System, the system of aerial photographs used to verify the existence of olive tree parcels was doing its job.

The Commission got quite humpy about the Court's findings complaining about its 'focus on finding individual errors in small smaples of transactions.' The Commission noted with apparent pride that it had clawed back €2.17 billion in ineligible payments in 2005. So that's all right then.Any source

Gloomy prognosis on Doha Round

Recent conventional wisdom has been that the Doha Round talks will get under way once the US elections are out of the way with a window of opportunity between then and the spring. After then it would be too late to get an agreement through Congress using trade promotion authority (once known as fast track) although a few months' extension might be possible.

However, the chair of the agriculture negotiations, Crawford Falconer, has now said that he thinks the Doha Round will fail. He still thinks that both the US and the EU have room within their negotiating mandates to improve their offers on reducing farm support, but he suggested that the political will was missing on both sides. There was still the possibility of finding 'an outcome that would work and one that would make a difference', but time was running out.

Falconer's intervention could be a ploy to encourage a focus on the issues and to offset overly optimistic pronouncements by politicians. Nevertheless, it is easy to fall into the comforting belief that, as happened in the Uruguay Round, it will be 'all right on the night'. This time it may not be and the consequences for agricultural trade and further policy reform would be serious.Any source

THE PROPHET AND THE PROFITS
Islamic finance

Islamic banking and financial institutions grew along with political Islam: it declined, they did not. In fact, Islamic finance is now a confident part of the new global world of venture capital, ethical investment and profit-and-loss sharing.

By Ibrahim Warde

The assets of Islamic financial institutions now top the $230bn mark. That is more than a 40-fold increase since 1982 (1). Most of the large Western financial institutions, following the example of Citibank, have their own Islamic subsidiaries or, at the very least, Islamic "windows" or products aimed at their Islamic clientele. As proof of how many companies are compatible with Islamic law - and not just from within the Muslim world - there is now even a Dow Jones Islamic market index.

This may seem strange. We often hear it said that Islam is incompatible with the new world order that emerged with the end of the cold war (2). How can practices rooted in the Middle Ages thrive in the age of technology-driven global finance? Or institutions that are suspicious of interest operate within a global, interest-based financial system? And how can Islamic finance, often considered a facet of political Islam, experience its most rapid growth just as that same political Islam is on the wane (3) ?

Modern Islamic finance began in the early 1970s at the intersection of two important developments in the Muslim world: the rise of pan-Islamism and the oil boom. The 1967 Six Day war marked the end of the secular pan-Arab Nasserite movement and the start of the regional dominance of Saudi Arabia under a pan-Islamic banner (4). With the start of the Organisation of the Islamic Countries movement (OIC) in 1970, the idea of updating traditional Islamic banking soon became part of the agenda. It was something that had preoccupied Islamic scholars, particularly in Pakistan, for a number of years.

Research institutes focusing on Islamic economics and finance began to spread throughout the Muslim world. In 1974 the OIC summit in Lahore voted, after oil prices quadrupled, to create the inter-governmental Islamic Development Bank (IDB). Based in Jedda, this became the cornerstone of a new banking system inspired by religious principles. In 1975 the Dubai Islamic Bank - the first modern, non-governmental Islamic bank - was opened. In 1979 Pakistan became the first country to embark on a full Islamisation of its banking sector; and Sudan and Iran followed suit in 1983.

The first paradigm of modern Islamic banking was established in those years. Islamic jurisprudents reinterpreted a rich legal but pre-capitalist tradition to suit the requirements of the modern era. There was a central problem: although commerce had always been central to the Islamic tradition (the Prophet Mohammad was himself a merchant), profits from pure finance were viewed with suspicion. The Koran says, for example, that despite their superficial resemblance, profits from commerce are fundamentally different from those generated by money-lending (sura 2, verse 275). More specifically, Islam prohibits riba. Though the term literally means "increase", it has been variously interpreted: sometimes as usury (or excessive interest), more often as any kind of interest. The majority of Islamic scholars still equate riba with interest, even though major scholars - including the current head of Egypt’s Al-Azhar, one of Islam’s oldest and most prestigious centres of learning - have condoned the use of certain forms of interest.

Pricing time

Islamic scholars accepted that time must be priced, but objected to the fixed, pre-determined aspects of interest-based lending with its inherent risk of lender exploiting borrower (5). In the early days of Islam, the dominant form of finance consisted in a partnership between lender and borrower, based on the fair sharing of both profits and losses - a logic similar to today’s venture capital where financiers link their fate to the firms in which they invest. For instance, in medieval Arabia, wealthy merchants financing the caravan trade would share in the profits of a successful operation, but could also lose all or part of their investment if the merchandise was stolen, lost or sold for less than its cost.

A distinctive feature of Islamic banking was to be its focus on developmental and social goals. Profit-and-loss-sharing (PLS), or partnership finance, with its focus on cash-poor but promising entrepreneurs, held more economic potential than conventional, collateral-based lending, which favours established businesses. Islamic finance also promised to benefit local communities and draw into the banking system people who had shunned riba-based finance. In addition, banks were to contribute to, as well as manage, zakat funds (6) earmarked for a variety of charitable and social purposes.

The first Islamic banks were committed to partnership finance - mudaraba(commenda partnership) and musharaka (joint venture) - though most of their operations consisted of cost-plus operations such as murabaha, where the bank would purchase the goods needed by the borrower, then resell them to the borrower at a profit. Remuneration of deposits (current, saving or investment accounts) was based on a profit-and-loss sharing logic: investment accounts were remunerated based on the performance of specific investments by the bank; and holders of savings accounts shared in the bank’s overall profits.

After a few years Islamic finance began to look like no more than an exercise in semantics: Islamic banks were really no different from conventional banks, except in the euphemisms they used to disguise interest. Forays into profit-and-loss sharing were disappointing, and often abandoned. The image of Islamic banks was also tainted by the failure of Islamic Money Management Companies (IMMCs) in Egypt in 1988 and by scandals such as the BCCI (Bank of Credit and Commerce International) collapse in 1991. People dismissed Islamic finance as a passing fad associated with the oil boom.

In reality, it was on the cusp of a major boom. Deregulation and technological change had produced a major readjustment in international finance. And the Islamic world had been transformed by new political, economic and demographic circumstances (the impact of the Iranian revolution, the Gulf war, the collapse of the Soviet Union, the emergence of new Islamic states, a changing oil market, the rise of Asian tigers, a growing Islamic presence in the West, the emergence of new Islamic middle classes).

The traditional world of finance, dominated by commercial, interest-based banking, could raise potentially troublesome theological issues. But Islamic finance thrived in the new world, with its downgrading of interest income, financial innovation and blurring of distinctions between commercial banking and other areas of finance. The downgrading of interest (and the concomitant rise of fees as a major source of revenue for financial institutions) allowed Islamic bankers to sidestep the controversial riba issue. Deregulation fostered the creation of tailor-made Islamic products. Until the 1970s financial institutions could sell only a narrow range of financial products. With the lifting of constraints on products that could be devised to suit every need, religious or not, Islamic products could be created. For example, the process of slicing and splicing makes it possible to split the interest and principal components of a bond, and sell them separately.

Moralising finance

At the ideological level, the Islamist critique of statism converged with the emerging "Washington consensus". The Islamic commitment to private property, free enterprise and the sanctity of contracts meshed with the emphasis on privatisation, deregulation and the rule of law. The reliance on zakat and other religiously-based redistribution schemes matched increased preference, since the Thatcher-Reagan years, for the downsizing of the welfare state. In many countries, Islam became a tool for entrepreneurs seeking to get around restrictive regulation, and the best excuse to disengage the state from the economy. Malaysia and Bahrain used Islam as a tool of financial modernisation - essentially as a way of countering the rentier inclinations of the private sector and the anti-competitive leanings of entrenched elites who benefited from the status quo. The Financial Times noted that Islamic institutions are now often at the forefront of innovation and dynamism.

Perhaps the main impetus behind the current boom in Islamic finance lies in the excesses of global finance (7). Just as current business excesses have spawned a preoccupation with ethics, the amorality of contemporary finance has generated an interest in "moralising" finance. And whereas Western or Judeo-Christian finance has become thoroughly secularised (the religious origin of many financial institutions has long receded from people’s minds), the idea of Islamic finance was bound, at a time of rising pietism (8), to strike a chord. Islam has a positive view of economic activities, while providing for a strict ethical framework; and Islamic finance offers a fruitful compromise between finance and ethics.

This explains the current tendency to focus on the spirit, or "moral economy", of Islam. In contrast to the 1970s, when literal, legalistic and scholastic interpretations dominated, the ijtihad (interpretation) now underway focuses on making modern financial instruments compatible with Islamic principles. The modernist slant disavows the view that whatever did not exist in the early days of Islam is necessarily un-Islamic. Challenging common perceptions that Islam is rigid and fossilised, it emphasises those adaptive mechanisms - such as departures from tradition for reasons of local custom (’urf), public interest (maslaha) or necessity (darura) - that have allowed the religion to thrive on every continent for 14 centuries.

Whereas the early years of Islamic finance were dominated by oil-producing Arab states (primarily Saudi Arabia ), and to a lesser extent Egypt and Pakistan, the new paradigm reflects the diversity of the Islamic world. A wide range of Islamic products is now available in at least 75 countries. Even countries that have Islamised their entire financial systems have done so under different circumstances and in vastly different ways. In addition, much innovation and scholarship now originates within Muslim minorities outside the Islamic world.

Today the fastest growing segments of the industry are outside traditional banking products and in areas of finance that were either initially dismissed as unacceptable to Islam (such as insurance or takaful) or that barely existed in the 1970s (such as micro-lending and Islamic mutual funds). Funds invested in stocks acceptable to Islam (shunning unethical or highly-indebted firms, or engaged in gambling, alcohol sales and other prohibited activities) are increasingly popular, just like their "socially-responsible" secular counterparts. Islamic finance still faces a host of challenges (strategic, economic, regulatory, political, religious), but the current boom does not seem likely to abate.

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Islamic Financial System

Introduction

Islamic finance is an old concept but a very young discipline in the academic sense. It lacks the required extent and level of theories and models needed for expansion and implementation of the framework provided by Islam. In these circumstances, unawareness and confusion exist as to the form of the Islamic financial system and instruments.

The main difference between the present economic system and the Islamic economic system is that the later is based on keeping in view certain social objectives for the benefit of human beings and society. Islam, through its various principles, guides human life and ensures free enterprise and trade. That is the reason why the conventional banker does not have to be concerned with the moral implications of the business venture for which money is lent.

Socio-economic justice is central to the Islamic way of life. Every religion has the same basic aim. In an Islamic environment, an individual not only lives for himself, but his scope of activities and responsibilities extend beyond himself to the welfare and interests of society at large. The Qur'an is very precise and clear on this issue. There are basically three components of an Islamic economic paradigm:

1. That as viceregent, man should seek the bouties of the land that God has bestowed on humanity. From the wealth thus obtained, he should enjoy his own share.
2. That he should be magnanimous to others and use a part of the wealth so obtained also for the benefit of his fellow-beings.
3. That his actions should not be wilfully damaging to his fellow-beings.

Human society in Islam is based upon the validity of law, of life and the validity of mankind. All these are natural corollaries of the faith. Islamic laws promote the welfare of people by safeguarding their faith, life, intellect, property and their posterity. God nurtures, nourishes, sustains, develops and leads humanity towards perfection. Even though an individual may be making a living because of his efforts, he is not the only one contributing towards that living. There are a number of divine inputs into this effort and therefore, the results of such an effort obviously cannot be construed as entirely proprietary.

Whereas the Islamic banker has a much greater responsibility. This leads us to a very fundamental concept of the Islamic financial system i.e. the relation of investors to the institution is that of partners whereas that of conventional banking is that of creditor-investor.

The Islamic financial system is based on equity whereas the conventional banking system is loan based. Islam is not against the earning of money. In fact, Islam prohibits earning of money through unfair trading practices and other activities that are socially harmful in one way or another.

Those who swallow down usury cannot arise except as one whom Shaitan has prostrated by (his) touch does rise. That is because they say, trading is only like usury; and Allah has allowed trading and forbidden usury. To whomsoever then the admonition has come from his Lord, then he desists, he shall have what has already passed, and his affair is in the hands of Allah; and whoever returns (to it) - these are the inmates of the fire; they shall abide in it [Sura 2:275].

Not that there was any ambiguity in the Command of Allah. Far be it from Him to give any order to His Servants, which they can not comprehend. The fact is that those who had surplus money and wanted to earn profit did so either by lending it through riba (usury) or by investing it in trade and hypocrites were not prepared to forgo the first option. Hence, they argued that since both were means of earning profit, they were alike and the prohibition of riba did not stand to reason.

The practice of riba i.e. usury was so deep-rooted in society and continuance of the practice was so undesirable, that Allah warned the believers that if they did not desist, they should be prepared for a war against Allah and His Apostle. This warning was heeded by the Muslim Ummah and for more than a thousand years the economies of Muslim states were free from riba. With the ascendancy of Western influence and its suzerainty over Muslim states, the position changed and an interest-based economy became acceptable. Efforts in Muslim countries to revert to an interest-free economy were hampered by many obstacles.

The Role of Money

The traditional definition of the time value of money leads one to assume that profit maximisation is the objective of investors irrespective of whether or not the earning of profit has made someone else worse off. Some economists have termed the maximisation of profit as the sole objective of corporations. This view cannot be supported or defended since the profit maximisation process may lead to perverse outcomes. When financial operations are removed of moralistic tone, competitive markets fail to achieve the efficient allocation of a country's resources.

In Islam money in itself is not considered, as actual capital only exists when money, along with other resources, is sunk into productive activities. Linking the use of money to productive purposes invariably brings into action the factor of labour, a process from which benefits pass on to society.

Types of Islamic Financial Instruments

Demand for monetary instruments is influenced by the variation and level in the market rate what is meant as the market rate of return. The demand for household monetary instruments is mainly for the purpose of circulation of income. Banks need these instruments for:

1. transaction purposes;
2. precautionary purposes, in that some unexpected payments have to be made while some expected inflows may not be forthcoming on their due date, and;
3. not only to avoid loss but also to obtain gains in the capital value of financial assets under the expectation that the market rate of return may move in a certain direction.

What differentiates a traditional financial market from others markets is that no tangible good or service is exchanged for any monetary consideration; only a "financial claim" changes hands in the form of a promissory note or a title to any future flow of income adjusted for any capital appreciation. Not all Islamic instruments are purely financial claims. Some of the instruments also represent ownership of the underlying assets together with a claim to underlying cash flows. Basically there are the following four types of Islamic financial instruments:

1. Type "A" is a financial claim of monetary value with recourse to underlying durable assets and related cash flows. This type has a predictable future income stream, is marketable and can be discounted since with the changing of hands, the instrument passes title to the goods and not to the debt. It is basically lease-based.
2. This instrument is partly backed by durable assets and its income is not predictable, but evaluated through an asset valuation process at the end of an agreed and declared duration. The underlying transactions can be a mix of ijara, modaraba, musharaka etc., contracts. This Type may be traded in the secondary market at its fair market price acceptable to the parties involved but not discounted.
3. Type "C" is purely a monetary claim to an expected income stream forthcoming from underlying commercial transactions. Income is evaluated through an asset-valuation process at the end of an agreed and declared period. A transaction of this type may comprise morabaha, istasna etc., contracts which are debt claims against third parties in respect to actual commercial transactions. The Type may be traded at its face value declared at the end of each accounting period but cannot be discounted.
4. The Type "D" is purely a financial claim of monetary value but with recourse to certain precious metals such as gold, silver, platinum, etc., or commodities quoted on exchanges. The instrument entitles the holder to take delivery of the underlying asset but does not carry any attached revenue stream except that its price is pegged to the price of the underlying precious metal or commodity quoted at recognized international exchange rates. It can be traded but not discounted.

Risk Mitigating Features

The phenomenon of risk plays a pervasive role in economic life. Without it, financial and capital markets would consist of the exchange of a single instrument each period, the communications industry would cease to exist in so far as this market is concerned and the profession of investment banking would be reduced to that of accounting. Risk is further segregated from uncertainty. A situation is said to involve risk if the randomness facing an economic agent can be expressed in terms of specific numerical probabilities (these probabilities may either be objectively specified, as with lottery tickets or else reflect the individual's own subjective beliefs). Situations where the agent cannot (or does not) assign actual probabilities to alternative possible occurrences are said to involve uncertainty.

While it is not always true that a riskier asset will pay a higher average rate of return, it is usually return. Risk is an opportunity in financial markets and also a problem. Risk-averse investors require additional return to be at additional risk and, in effect, in a competitive market higher return is accompanied by higher risk. An investor evaluates an asset in terms of its marginal contribution to his/her portfolio.

The fundamental principal of valuation is that the value of any financial asset is the present value of the cash expected. The process requires two steps:

1. estimating the cash flow, and;
   
2. determining the appropriate interest rate that should be used to calculate the present value.
   
   

The following are the Shari'ah compliant risk mitigating features:

1. By prior arrangements in the instrument, the investing company, through its banker, would have a priori right in profit sharing up to an agreed upon ratio.
2. The profit will be paid on account on a monthly basis to the investing company as provided in the projected accounts.
3. The final accounting and settlement is accomplished at the end of the term of the instrument when the profit and loss accounts are finalised.
4. In order to mitigate the risk and as per the terms of the instrument, a Takaful fund is established for the term of the instrument.
5. In this Takaful fund where the investee company earmarks a part of their reserves for the Takaful fund.
6. The investing company will contribute 1% of the invested amount.
7. This 1% contribution is made through an advance by the investee company on account of future profits.
8. In case of any loss during the tenancy of the instrument, it will be adjusted against the Takaful fund.
9. The balance will be distributed between investor and the at the end of the term of instrument.
10. Through a valuation, value of the investment would be established for the purpose of exercising the put option.
11. The investing company shall have the option to exercise its put option at the value price and the company shall buy this instrument.

Islamic Leasing

But before describing leasing, as aforesaid, let me very briefly touch upon two of the basic or fundamental principles of Islamic finance in order to develop a premise for meaningful discussions on leasing.

1. It has to be asset-based financing:
   
   The first fundamental principle of Shari'ah is that as opposed to conventional monetary dealing, profit is generated when something having intrinsic utility is sold or offered for use. Money has no intrinsic value. As such dealing in money (same currency) cannot generate profit but a Riba unless converted into real assets to deal with.
2. There has to be an element of risk:
   
   The second basic element of Shari'ah is that one cannot claim a profit or fee for a property/transaction, the risk of which was never borne by him.

Based on the above fundamental principles, the most ideal mode or instrument of financing in Shari'ah are Musharaka and Modarabah followed by Salam and Istinsa.

Morabaha and leasing are not originally modes of finance. However, to meet certain specific needs where ideal modes like Musharaka or Mudaraba are not workable for whatever reasons, they have been reshaped and allowed in Shari'ah subject to certain conditions.

1. Leasing described For leasing, IJARAH is an Arabic term with origins in Islamic Fiqah, meaning to give something to rent. There are two types of Ijarah. One relates to employing or hiring the services of a person for wages whereas the second type relates to the hiring of any asset or property in order to reap its benefits without the transfer of ownership, or what is called in English "Usufrukt". The price or consideration of this is the rent.
   It is the second type of Ijarah which is the subject matter of the discussion here because it is generally used as a form of investment and also as a means of finance.
   As described earlier, in the light of the two basic cornerstones of Shari'ah, leasing is a contract whereby usufruct rights to an asset are transferred by the owner, known as the lessor, to another person, known as the lessee, at an agreed-upon price called the rent, and for an agreed-upon period of time called the term of lease.
2. Lease as a mode of financing Strictly speaking leasing is not a means of finance as originally envisaged. It is simply a transaction much as a sale/purchase. As described above, the leasing transaction simply denotes the transfer of the usufruct of a property from one person to another for an agreed-upon price called rent without transferring the corpus i.e. ownership of that asset. Accordingly, the rules of "leasing" closely resemble the rules governing "sale" because in both cases something is transferred to second person for valuable consideration.
   Leasing differs from sale only in-so-much-as not transferring the corpus or ownership of the property which remains with the transferor. As such in Shari'ah, a lease transaction is governed by a separate set of rules, which we shall outline in the following paragraphs.
   Although leasing, as originally conceived, is not a means of finance, the financial institutions and the corporate world have adopted it as such. Due to several factors (including tax concessions, etc.), instead of providing an interest-bearing loan, certain financial institutions in the West started to provide requisite equipment to their customers. To arrive at the rent, the total cost of the asset is calculated plus interest or mark-up to be recovered during the period of lease on a monthly or quarterly basis. This type of lease in the West is known as a finance lease, to be distinguished from an operating lease, wherein various basic features of the leasing transaction are ignored which is tantamount to Riba.
   Knowing that leasing is lawfully allowed under Sharia'h, since it meets one of the basic criteria of asset-based finance, a number of Islamic financial institutions have adopted leasing on this model as carried out by conventional financial institutions without making the necessary modifications that really conform to the rules under Sharia'h, particularly in regards to assuming the risk of ownership in the leased asset. Great care needs to be exercised to ensure various Sharia'h requirements, as rendered below, based on the basic two principles of:
   1. Asset based finance, and;
      
   2. Assuming a risk element connected to the ownership of the asset.
      
      
3. Basic Rules of Leasing
   The description or definition given above, under part A, contains the following essential ingredients for outlining the basic rules under Shari'ah:
   1. That it is a contractual obligation.
   2. That there has to be a valuable use of the asset and transferability of that usufruct.
   3. That the ownership of the asset is retained by the transferor or lessor throughout the lease period. Consumable articles cannot be leased.
   4. That the risk and liabilities of ownership lie with the lessor. The leased asset shall remain the risk of the lessor throughout the lease period. Any loss or harm caused by factors beyond the control of the lessee shall be borne by the lessor. However, the lessee is liable to compensate the lessor for any harm to the leased asset caused by any misuse or negligence on the part of the lessee.
   5. That the risk and liabilities associated with the use of the asset shall be borne by the lessee. For instance, taxes and other government levies, utilities, etc. However, the contract must specify these items for clarity's sake.
   6. That the term of the lease, period of the lease, its renewal or early termination must be stipulated.
   7. Purpose of use. The lessee cannot use the leased assets other than for the purpose specified in the contract or agreed to by the lessor expressly.
   8. Commencement of lease. The lease commences from the date of delivery of the asset to the lessee and not from the day of payment or lease agreement, with reference to the commencement of rentals.
   9. Determination of rental. The rent for the entire period of the lease must be determined at the time of the contract. Different rates of rent for different phases during the lease period are permissible. This point will be elaborated in the following discussion of the issues.

Issues

While operating a leasing business, a number of practical issues have cropped up which warrant discussion and interpretation under Sharia'h. An exhaustive and conclusive list of such issues is impossible to make. However, certain important and salient issues need to be taken up in these discussions as follows:

1. Joint ownership (Lessors)/Joint Lessees - (permissible)
2. Insurance - Islamic Takaful - (by the owner)
3. Renewal of or variation in the lease period - (permissible if mutually agreed-upon)
4. Future date. Agreement to commence lease on some future date is allowed. However, the rent has to commence from the date of delivery. If the lessee has paid the price and delivery of the asset is delayed by the supplier, then no rent is liable to be paid for the period of delay. It must be noted that future or forward sale in sale/purchase transaction is not permissible in Sharia'h. This is another major point after ownership transfer which differentiates leasing from a sale/purchase transaction under Sharia'h.
5. Acquisition of an asset by the lessee. For various reasons, the asset subject to lease may be acquired by the lessee and payment may be dibursed? through him by the lessor. This is permissible under Sharia'h on the principles of agent and principal. Here there are two relationships separate from and independent of one and other. The first relationship is that before becoming a lessee, an individual acts as an agent for and behalf of the lessor to acquire the asset. This is an independent arrangement. Once the asset has been acquired with all the risk and reward of ownership to the lessor, then a second relationship is created i.e. the lessor and the lessee under the lease agreement. That cost of acquisition shall be borne by the lessor being owner and not by the lessee.
6. Rentals.
   1. Advance rentals are admissible subject to the condition of adjustment against the actual rental when due upon commencement of the lease as discussed before.
   2. Unilateral increase by the lessor is not permissible even if stipulated in the contract.
   3. Bench marks. The fixing of any bench mark for determining the amount of rent, as with an inflation index etc., is permissible provided that the lease agreement clearly stipulates the same e.g. if the inflation rate as declared by an authoritative body like the State Bank etc. is said to be 10% per annum, then the rent can be increased every year by that percentage.
7. Penalty for late payment of rentals. Penalty or compensation for late payment is not permissible. Rentals once due become a debt obligation or monetary asset which cannot generate profit under Sharia'h. This situation has been exploited by unscrupulous lessees. In such circumstances, contemporary scholars have provided a solution whereby a penalty can be charged to the lessee for delayed payment though the amount recovered is only to be used for charitable purposes by the lessor. In other words, the late payment charges cannot be taken as income by the lessor. A suitable clause, therefore, is to be incorporated into the lease agreement to avoid any misunderstanding in this regard.
8. Premature termination of lease. Premature termination of lease is allowed provided that the lessee has violated or contravened the terms of the lease or it is by mutual consent of the lessee and the lessor. Any unilateral or unconditional termination of the lease either by the lessor or the lessee without prior notification is contrary to the principles of justice and equity, hence not allowed under Sharia'h.
9. Repossession of an asset. In the event of early termination, or upon maturity of the term of lease, assets have to return to the lessor unless he voluntarily relinquishes his rights or makes a gift of the leased assets to the lessee. However, rent would be payable only upto the date of termination and not beyond. Entitlement or the right of the lessor to claim rent from any period after termination, even if expressly stipulated in the contract, is not valid under Sharia'h.
10. Residual value. It is accepted under Sharia'h that ownership of the asset belongs to the lessor and, therefore, assets should revert back to him upon expiry of the lease. Any stipulation to the contrary in the contract that the lessor can sell or transfer the asset to the lessee upon the expiry of the term of the lease at a pre-determined price called residual value is not considered valid from the point of view of Sharia'h. However, this point is currently a subject matter of debate among contemporary scholars. They are of the view that if a lessor unilaterally undertakes or promises to transfer the ownership to the lessee as a gift or at a token price separate from the lease agreement, then this can be considered validly binding on the lessor at the option of the lessee.
11. What is imortant is that under Shari'ah the leasing and sale/purchase transactions are two separate things and should not be mixed up in one contract, as both are independent and governed by separate rules. Nothing, however, in Sharia'h stops the lessor from giving away the ownership of his assets at his own discretion or good will toward the lessee at any mutually agreed-upon price or as a gift upon the expiry of the leasing contract.
12. Sale and lease back. This is allowed, but only as two separate transactions. That in the first place there is a sale of assets to be purchased by the lessor. This is governed by Sharia'h rules of sale/purchase at a fair market value. Once the ownership title is validly passed on to the lessee, a lease transaction can then be executed separately through a lease agreement.
13. Sub-lease. Sub-lease by the lessee is permissible under Shari'ah subject to the consent of the lessor and can be expressly outlined in the lease agreement. In Sharia'h, however, there are divergent views if the rent arising from the sub-lease is higher than the rent payable on the original lease. Some scholars allow the differential to be retained by the lessee while others feel that the surplus received from the sub-lease should be passed on to the owner i.e. main lessor.
14. Assigning of the lease. Also permissible under Shari'ah, the lessor can sell the leased assets to a third party along with his rights and obligations. The relationship between lessor and lessee in this case will be determined between the new owner and the lessee. However, the lessor cannot assign the lease without transferring the ownership for monetary consideration. Here the basic Sharia'h cornerstone of asset-back transaction is not there. Rent receivable are debt obligation which cannot therefore be transacted for a monetary price. Assignment of lease rentals without monetary consideration is, however, not prohibited in Shari'ah.
15. Securing of the lease. Leased assets can be secured along the same principles governing the assignment i.e. ownership of assets along with the rent. Rent alone without ownership of the assets cannot be secured for the reason of being a debt obligation as discussed before. Securing a lease can be made wholly or partly to one party or to a number of persons. Documentation has to be carefully prepared to ensure the securing instrument represents assets and not the debt or monetary obligation alone.

Some Difficulties (Pakistan)

Major hurdles faced by Islamic finance houses are the absence of a necessary legal framework and the lack of adequate infrastructure in the banking and investment fields.

The modern banking system is based on the concept that money should be treated like any other factor of production and must earn some return over a period of time. It is argued that the establishment of large-scale enterprises, and hence material progress, is not possible unless there is an agency that can mobilise financial resources from the public by paying them some interest, while lending these resources to entrepreneurs. By charging these entrepreneurs a higher interest, these agancies were able to utilise the difference (called a spread) to meet their expenses and to make some profit for the owners of the agency (i.e. share-holders). Banks were established to fulfil this need and from the beginning were only authorised to perform this function. They were legally prohibited from entering into trade or industry. When the Government of Pakistan decided to introduce an interest-free banking system, this prohibition was removed. After a lot of in-house the banks were told in June 1984 that they were allowed to deal in only 1 to 12 means of financing (only two were classified as "Financing by Lending").

These two permitted lending without interest by charging the actual expense incurred by the banks to meet their cost of operation and Qarde Hasana. All the rest were either trade-related or investment-type models. These included the purchase of goods by banks and their sale to clients at an appropriate mark-up price on a deferred payment basis, in case of default there being no further mark-up. This sale of goods on mark-up is known as Murabiha. Other types of financing were hire-purchase, leasing, Musharika or profit- and-loss-sharing, equity participation and purchase of shares, etc.

Since Murabiha was the type nearest to lending and since it did not requre any expertise in buying and selling commodities, bankers limited most of their financing to this type. In order to eliminate the risk of prospective buyers refusing to accept goods purchased by the banks by reason of not being strictly in accordance with the specifications, banks were allowed to appoint the prospective buyer as their agent for the purchase of the goods and later for the sale of the goods to the buyer's firm. Furthermore, to give as much leeway to the banks, as safeguards of public money, as possible, the Ulama did not fixe a waiting period between the two stages of buying and selling.

The banks did not assume the role of trader and Morabiha degenerated into lending on mark-up. The banks rarely hired persons who knew even the basics of trading, nor did they train their existing staff to learn the art. They did not even bother to find out whether their agents had actually purchased the goods or not. The inability, or reluctance of banks and financial institutions to change over their operations from lending to trading has been a serious impediment to the Islamisation of the economy.

The blame does not entirely fall on the bankers. Depositors have become so accustomed to their money remaining safe and yet earning profit that if a bank had really ventured to trade and incurred a slight loss, then the depositors would have immediately demanded their money back causing the bank to go bankrupt. In the existing state of morality this was more likely to happen. It actually did happen to a few investment companies that had started with good intention, but could not go on giving away handsome profits to their depositors.

A lack of seriousness and dedication in those responsible for the implementation was also another great impediment to the achievement the goal of an interest-free economy. Many of these individuals thought that in the present world, there was no alternative to interest, yet something had to be done because of demands from the government. Some, who were more influenced by Western education and culture, thought that interest banking was not prohibited by Islam. Yet others thought that the efforts being made were only superficial and in reality the new system was no different from the existing system.

One weakness in the implementation of the proposals to eliminate interest from the system was that people were not sufficiently motivated to sacrifice a part of their financial interests for the sake of carrying out the commands of Allah (SWT), and The Prophet (SAW). Anyone attempting to change a well-established practice must be prepared to make some sacrifice for this, as arguably no noble cause has been achieved without any sacrifice. The prevailing level of public morality within the existing legal and taxation system of the state made it an up-hill struggle to rid the banking system of interest. And it remains so. Beyond this, there are many avenues of making profit that would have to be forgone and many types of modern banking services which which also could not be provided by a bank working strictly on Islamic principles. For example, they could not keep their surplus cash in fixed or saving deposits. In spite of these difficulties, those who were engaged in the task of Islamisation took it upon themselves to portray as successful the reforms, while those who pointed out the difficulties were labelled as either a cynic or an opponent of the new system. Anyone who uttered a word of caution was regarded as someone who did not want the experiment of Islamisation to succeed. As a matter of fact, reward in the Hereafter (aakhirat) should have been the main purpose of Islamisation. It might not have attracted many people, but the foundation would have been firm.

One great obstacle in the realisation of the goal of an interest-free economy has been absence of a proper environment. Unfortunately nothing has been done to produce an ideal or a near ideal Islamic environment by government or public leaders. The most important pre-requisite for the enforcement of Sharia'h is a'dl [translation!!!!!!]. Establishment of the rule of law and ensuring justice to aggrieved persons should be the first task of an Islamic state, yet nothing has been done to achieve this end.

One very important requirement of an ideal evironment is an inflation-free economy. Inflation erodes the real value of money, meaning that when a person gives a sum of money on loan and receives the same amount back after one year, he has made a net loss. A major source of inflation is deficit financing. The printing of notes to meet budgetary deficit is in fact an injustice to the public, since the real value of their money is consequently eroded. In this respect too, the government's performance is very discouraging. Government borrowings at high interest rates and the quantum of the government's domestic and foregn debts has reached a level which cannot be sustained. There has also been no effort to change the taxation structure so as to bring it to conform with Shari'ah.

Musharika

Musharika represents the most desirable form of Islamic financing arrangements. Yet, in terms of its ability to be an effective and efficient instrument for replacing interest-based transactions, it poses formidable problems.

The salient features of the Musharika agreement, as practised by the commercial banks, were as follows:

1. It was a short-term financing arrangement specific only to the parties to the contract.
2. Investment by the banks was made in the form of the sanctioning of a funding limit to the client and the degree of employment of funds was determined on the basis of daily product of outstanding balances due to the bank.
3. All participative funds, including equity, reserves and other non-debt capital was included in the definition of capital qualifying for profits.
4. Profit sharing ratio was determined through negotiations within the boundaries specified by the SBP.
5. Profits for the purpose of sharing were to be determined after apportioning a share of net-income as a management fee to the firm.
6. Provisional profits, based on projected profits, were to be paid to the bank on quarterly basis, subject to a final adjustment on the basis of actual profits or losses.
7. Shortfalls or excess profits were to be settled through the creation of a [participation] reserve fund, which would attempt to smooth out the payments to the bank.
8. Losses, if any, were to be shared in strict proportion to the bank's investment in the total capital of the firm.
9. Against the apportioned loss of the bank, ordinary shares were to be issued, which qalified for reconversion in Musharika investment under the original terms of the agreement in case profits accrued in future.
10. Standard securities in the form of pledging and hypothecation stocks or the mortgaging of properties were required against Musharika financing.

Some of these features of the instrument attracted criticism. For example, the profit sharing arrangement did not strictly conform to the requirements of Sharia'h particularly in the treatment of losses and the payment of provisional profits or their adjustment through the participation reserve. Secondly, despite being a sharing arrangement, the actual agreement was cast within the framework of a creditor-debtor relationship, and was also protected as such in law. Three, Musharika also demanded securities which were akin to the relationship between a creditor and debtor. Finally, in the absence of a legal framework regulating the operation of Musharika, there was no standardisation of the agreement, and the terms and conditions of various agreements varied considerably.

Modaraba

Modaraba represents another of the more desirable forms of Islamic financing arrangements.

The salient features of Modaraba companies and their operations are as follows:

1. Only registered companies or those established under specific laws are eligible to register as Modaraba companies.
2. Modaraba can either be specific purpose or multi-purpose and can either be for a fixed term or in perpetuity.
3. On fulfilment of certain conditions, and with the prior approval of the Registrar, Modaraba companies may float Modarabas on the stock exchange, and their certificates of issue will be tradable securities.
4. Each Modaraba will be a separate business and its operations must conform to those approved under the injunctions of Sharia'h.
5. A Religious Board, to be periodically constituted under the ordinance, will be empowered to declare whether the operations of Modaraba were in conformity with the provisions of Sharia'h or not.
6. Many disclosure requirements, similar to those applicable to listed companies, are applicable to Modarabas, including statutory audit, annual meetings and investments and loans to and from the directors of the Modaraba company.

Evidently, the entire scheme was an elegant formulation of the simple relationship required under a modaraba contract between labour (darib) and capital (rabbul ma'l). The management company was to be renumerated through a fixed management fee paid out of the net income of the modaraba and the remainder was to go to modaraba certificate holders, with adequate provisions for retained earnings to ensure future growth.

CONCLUSIONS

To outline the broad features of a strategy which holds the promise of successfully implementing an Islamic system of finance are as follows:

1. The process has to be guided by basic legislative efforts covering all the essential elements of the proposed programme.
2. The legislation would define Riba and prohibit transactions connected with Riba.
3. The application of the law would be unqualified and without exception, thus the entire financial sector, covering banking government finance and foreign transactions would be covered in its ambit.
4. Given the unqualified and non-exceptional nature of the proposed law, even existing relations will have to be converted into permissible forms, for which a suitable time frame, within a phasing-in period, will be allowed.
5. The law should also provide for the Constitution of a Sharia'h Board which would assist the SBP to formulate permissible means of financing. Such means, specified with the prior approval of the Board, will only be illustrative and no restrictions will be placed on banks and financial institutions to design means of financing which are free of Riba.
6. A major portion of the law will have to be devoted to a plan of restructuring the fiscal policy which comprises a scheme for the privatisation of public sector assets and the use of its proceeds for the settlement of the outstanding stock of public debt.

The proposed strategy is based on the clear recognition of the scope implied by the prohibition of Riba. This is critical, for otherwise the solution will continue to elude us.

Any source

BVI Leading Insurance Broker Joins HLA Global

The Belmont Risk Solutions Limited agency has released a bulletin where informed about its joining to the HLA Global insurance broking network. Belmont Group is incorporated in the British Virgin Islands and offers wide range of insurance-related services and products. The spheres of activities of the company include also captive management and reinsurance activities, as well as intermediary services for the BVI residents and businesses. Belmont Insurance Management Limited, the sister company of Belmont Risk Solutions Limited, holds under its management over 90 captive insurance and reinsurance companies of the BVI region.

The head of Belmont Group is Simon Owen – an investment and insurance specialist who has worked in the finance industry for over 13 years. He acts as the Managing Director of Belmont Risk Solutions Limited and Chariman of the British Virgin Islands Association of Insurance Managers. He is also member of the British Virgin Islands Marketing Advisory Committee, the Financial Services Institute Advisory Committee and the Joint Anti-Money Laundering Coordination Committee. Commenting on company's joining HLA Global, Mr. Owen stated that membership in such a strong and established broking network and 'affiliation with leading international firms such as Heath Lambert and Acordia' can bring a lot of benefits to their clients based in the BVI and overseas.

By words of Chief Operation Officer of HLA Grahame Weatherley, Belmont is 'a strong partner in the British Virgin Islands whose local knowledge and insight will enable HLA Global members around the world to meet the needs of those of their clients with a requirement for service and support in this important territory.'

The HLA Global, which was founded in 1997, is now represented in more than 60 countries. Its main partners are the UK-based Heath Lambert Group, and Acordia Inc., which is the largest bank-affiliated insurance broker in the U.S. These leading insurance broking companies, together with other partners, make up the HLA Global network with more than 6,000 people employed and US$1.5 billion in brokerage revenue a year.

Brian Obvi,
Offshore Analyst

Article any source

Concept and ideology Islamic Insurance


Islamic insurance (Takaful) means the act of group of people reciprocally granting each commercial profit sharing contract between the providers of funds for a business venture and the entrepreneurs who actually conduct the business. In other words, the Takaful business conducted by the company and the individual members of a group of participants who desire to reciprocally guarantee certain loss or damage that may be inflicted upon any one of them. This chapter deals with the conceptual issues, principles of contract insurance, types of general insurance policies, insurance in an Islamic perspective, modas operandi of Islamic Insurance Company, and other relevant matters.

We all know that life is full of uncertainties and it is general human tendency to avoid the uncertainties of life as far as possible. Social scientists of modern age have, therefore, stressed much need for the study of the subject of risk. In fact scientific study and management of risk is very important in the present context of worldly affairs. We know that different types of risk are involved in the society and one should know how to avoid or deal with it.

In the present day society, insurance is one of the most used, desired and prime methods of handling risks. However, insurance is a complex subject and is also a subject of much misunderstanding. It has been observed that much of the misunderstanding has arisen due to two main reasons:

i) We have failed to understand the basic nature of risk

ii) The relationship and difference between insurance and other methods of handling risk have not been properly understood.

Therefore, in order to grasp the functions and nature of insurance we will try to understand some basic concepts of risks and insurance.

Risk and Insurance

Risk has been defined as the uncertainty as to the occurrence of an economic loss. Risk and probability are not synonymous. Before analyzing the relationship between risk and insurance, we must understand the difference between risk and probability. The term's hazard and peril are more closely related to probability than they are to risk. For example, collision is a peril that causes the automobile accident and loss. The condition that makes the occurrence of collision more likely is called the hazard. For example, foggy weather is the hazard that creates the peril of collision. This means probability of collision increases when the hazard of foggy weather creates the peril of collision. Therefore, one can say that probability is the long run chance that out of a given number of possibilities, certain number of specific events will occur. But risk is the uncertainty as to occurrence of a loss. This is measured in the terms of degree of variation that actual events bear to probable events. The larger the number of exposures, the smaller is the risk. This is because under this situation, the smaller is the variation that actual events bear to the probable events. This called the law of large numbers.

The law of large number states that for a very large number of exposures, one can predict precisely the actual number of occurrence of an event. This law has proved very significant in the study of the subject of insurance. This is mainly because, the risks of the insurer is that he does not know what is the actual probability of a loss. It is, therefore, necessary to estimate the actual probability. The law of large number is of vital significance in analyzing this problem (Majumdern & Dewan 1999, p.23). According to this law, one can estimate the probability of occurrence of certain events more precisely by increasing the number of observations by sampling process. It has been observed that the average value of a very large number of observations will be very close to the actual average of the population from which the observations were taken. For example, probability of death at certain age can be estimated by way of a large number of observations in a sampling process.

It may be noted that foundation of insurance rests upon the law of large numbers. The insurers obtain a very large number of observations. In the case of life insurance mortality records of people at different ages are analyzed and summarized to find out the probability of death at certain age. In the case of general insurance the insurers usually have the statistical records of loss against different perils and thus they can fairly measure the underlying probability of a loss against, fire, accident, mechanical breakdown etc.

How to Handle Risk

An individual is always concerned because of the uncertainties of life. He does not know whether or not a given loss will occur to him individually. For an individual, the risk is very large. This is simply because an individual cannot obtain a sufficient number of exposures to have an accurate prediction as to the occurrence of loss. It is not the probability of loss which causes difficulty, but rather the uncertainly as to whether an individual will be among those who are expected to suffer loss. Had the loss been certain, one could perhaps prepare him for it in advance. Since this is not the case, one should try to reduce risk through insurance and other means.

One can handle risk by assuming it. Most of the people do it knowingly and unknowingly. In many cases we pass through life by way of accepting or assuming many small risks. However, in many occasions one has to accept it simply because one cannot afford to pay for it's reduction or transfer. If one can afford to pay the price of risk transfer, the insurance company or some other organization will bear the risk. In that case the insurance company will bear the risk for a price. But how will the insurance company bear the risk? The insurance company handles risk by utilizing the combination method as the basis of their insuring operation. The method of combination is the system of handling risk that usually involves the use of large numbers. The insurance companies persuade a large number of individuals, known as insured to pool their individual risks in a large group. When sufficiently large numbers are grouped the actual loss experience over a period of time will closely approximate the probable loss experience. The insurance company has little or no risk at all if this method is used properly When all of the individual objects are pooled into one group, the risk is no longer present, if the requisites of insurable risks are met with.

It may be noted here, that insurance companies do not cover all risks. That is to say, all risks are not insurable. Usually it is only the “pure” risks that are insurable and not the “speculative” risks. A pure risk can cause only loss but a speculative risk causes either a profit or loss. For example, there is risk in any investment and business venture due to market fluctuations. This is a speculative risk and therefore, not insurable. However, a businessman can insure the assets and legal liabilities against specified perils like fire, flood, cyclone, negligence, collision, etc. Similarly, one cannot insure the risk of gambling. However, all pure risks are not insurable as there are many situations that can cause loss where the loss a of large number does not operate satisfactorily. For many situations large number of required statistical records are not available. If the insurers cannot obtain statistics over a sufficient length of time on losses resulting from a particular peril, they cannot accurately predict the probable loss experience. In that situation it is not prudent to cover such risk. So it is evident that the prime requisite of insurable risk is that the number of objects must be of sufficient number. This means that the probable loss must be subject to advance estimation in order that it can be made accurate and the objects to be insured must be similar so that reliable statistics of loss can be formulated. For example, in case of fire and theft insurance, commercial buildings and private dwellings should be grouped separately as the hazards against these risks are different. Similarly the properties situated in the cyclone belt should not be grouped with that of the properties located in the cyclone free zone. This means the physical and social environment of the group ought to be roughly similar. Therefore, it is evident that from the viewpoint of the insurer, one of the prime requisites of insurable risks is that the number of objects must be sufficient in number and quality so that a reasonably close calculation of probable loss can be made (Greene 1962, p.47).

Requisites of Insurance for Covering Risk

Apart from what has been discussed above, the other requisites of insurance may be summarized as following:

(a) Insurance must be effected by means of a legal contract and must meet the general requirements of contract as follows:

i) It must be made by parties with legal capacity to contract; and

ii) It must be affected with a meeting of the minds of the parties.

(b) For any insurance contract to be valid it is necessary to have insurable interest of the insured on the subject of insurance. This means that an insured must suffer a financial loss himself.

(c) Property and liability insurance are subjected to the principle of indemnity which states that a person must not be indemnified more than his actual loss in the event of damage caused by a insured peril.

(d) Principle of subrogation ought to be followed where the principle of indemnity is in existence. Under this principle, the insurer is entitled to subrogation, which means that they acquire the right to recover from liable third parties. This is necessary to reinforce the principle of indemnity i.e. to prevent the insured to receive more than actual loss.

(e) Principle of utmost good faith must be followed in every insurance contract and for that matter breach of warranty, material misrepresentation and concealment of facts makes the contract void.

(f) Last, but not the least, there are the principles of loss determination and payment.

Uninsurable Risks

Not all risks are insurable. This is mainly because there are some risks, which in the true sense cannot be termed as risks. Therefore, the authors of risk management have differentiated between pure risk and speculative risk. Normally the pure risk is insurable and speculative risk is handled by methods other than insurance. In pure risk, there is uncertainty as to whether the loss will occur or not, but there is a chance of producing a profit out of that event. But in case of speculative risk there is uncertainty of an event that could produce either a profit or loss. For example, a business venture and a gambling contract are the risks of speculative nature and, therefore, not insurable. Market risks such as price changes and/or changes in the exchange rate of currency are not insurable. These risks are not subject to advance calculation, hence the insurer would have no realistic basis for computing his premium. Further, in times of rising prices no one would be interested to have insurance coverage against such risk and in times of failling prices an insurer can not afford to take on the risk because he can not avail the opportunity of spreading the risk over which to average out good years with bad years. The speculative risks are handled businessmen by way of hedging, whereby a speculator assumes the price risk.

Insurance and Gambling

Although it is common to confuse insurance with gambling, from economic and legal point of view gambling and insurance are two distinct matters. It is true that insurance company pays an insured a great deal more money than it has received, in terms of premiums, but this does not mean that insurance is thereby a gambling contract. The very purpose of insurance is to eliminate risks, whereas gambling creates a new risk.

For example, “A” and “B” may agree that if the property of “C” comes under fire, “A” will pay taka 1,000.00 to “B” and if there is no fire, “B” should pay taka 100.00 to “A”. In this case before this gambling contract neither party had any risk of loosing or gaining any money from this source. When “A” and “B” agree to the above proposition, each party becomes subject to a new risk of loosing money. Moreover, neither “A” nor “B” has any insurable interest on the property of “C”. However, if an insurance contract has to be effected it is only “C” (who can insure) to the extent of loss (up to agreed value) against a fixed premium. “C” in this case in fact has exchanged a large uncertain loss for a small but certain loss called the premium.

Although, insurance as being practiced in the modern world cannot be termed as gambling, this cannot be called also Islamic, simply because it is not gambling. However, insurance as a device to combat loss can rightly be used in an Islamic Society by way of applying the basic principles of insurance and eliminating the forbidden practices.

Principles of Insurance Contract

Insurance is affected by means of a legal contract and must meet the general requirements of contract. Thus the insurance contract must not be against public policy, must be enacted by parties with legal capacity to contract, must be affected with a meeting of the minds of the parties and must be supported by a consideration. Insurance is a contract of adhesion and any ambiguities are construed against the insurer. The following legal doctrines are vital to the understanding of insurance contract.

Insurable Interest: A fundamental legal principle underlying all insurance contracts is the principle of insurable interest. This means insurance is operative only in respect of the interest of the insured in the event of property concerned and it is this interest that is the subject matter of insurance contract. It means it is not the bricks and materials used in building which is the subject matter of insurance. The subject matter of insurance is the legally recognized relationship of the owner of the building whereby he will suffer loss if the building is caught in fire. This is essential; otherwise an individual would claim indemnification, even when he had not suffered any loss. The doctrine of insurable interest is also necessary to prevent insurance from becoming gambling.

Principle of Indemnity: The principle of indemnity ensures that a person does not get more than his actual loss, in the event of damage caused by an insured peril. It is important to note that only the contracts of property and liability insurance is subjected to this doctrine. Life insurance, health insurance and personal accident insurance policies are not contracts of indemnity (as no money payment can actually indemnify for loss of life or for bodily injury to the insured).

There are several ways by which an insured can be indemnified i.e. by cash payment, repair, replacement and reinstatement. In every instance the onus of proving that that the loss was caused by an insured peril rests upon the insured. The onus of proving that the loss was caused by other than in insured peril rests upon the insurer.

Without application of this principle, the insured would be tempted to make profit out of the happening of loss. There would be a tendency in the direction of over insurance. There are, however, some exceptions to the application of this principle in property insurance. For example, in marine insurance, for commercial convenience, it is customary to issue “value” policies i.e. the insured value is mutually agreed between the insured and the insurer. In the event of loss, the indemnity is measured in terms of the value fixed by the policy.

Principle of Subrogation: This principle states that the insurer, if and when indemnifies the insured, is entitled to recover from third party liable for the loss. One of the important reasons for this doctrine is to reinforce the principle of indemnity i.e. to prevent the insurer from collecting more than his actual loss. Another reason for subrogation is to hold premiums below what they would otherwise be. This, however, does not allow the insurer to lodge claim against the insured, even if the insured is negligent. The principle of subrogation also does not apply to personal accident and life policies.

Principle of Utmost Good Faith: This principle imposes a higher standard of honesty on parties to an insurance contract. The proposer must disclose before the contract is concluded all material facts, which he knows or ought to know. Failure to make such disclosure renders the contract avoidable at the insurers option. It is, important to note that avoiding the contract does not follow unless the misrepresentation is material to the risk. It is generally held that even an innocent misrepresentation of a material fact is no defense to the insured, if the insurer elects to avoid the contract. The insurer, however, in good faith pay the claim even if there is breach, and a breach of warranty may also be waived by the insurers. However, unless it is waived, a warranty must be complied with strictly and literally. It makes no difference whether the breach of warranty is material or immaterial, fraudulent or innocent.

TYPES OF GENERAL INSURANCE POLICIES

Marine Insurance: Marine policies relate to three areas of risk: the hull, the cargo and the freight. The risks against which these items may be insured are “perils of the sea,” fire, theft, collision as well as a wide range of other perils. Cargo is usually insured on a warehouse (of departure) to warehouse (of arrival) basis and frequently covered against "all risks."

Aviation Insurance: Most policies are issued on an "all risks" basis subject to certain restrictions. The buyers of these policies are the large commercial airlines, the corporate or business aircraft owners, private owners and flying clubs. Usually a comprehensive policy is issued covering the aircraft itself (the hull), the liabilities of passengers and liabilities to others.

Fire Insurance: A standard fire policy is used for almost all business insurance, the basic intention of the fire policy is to provide compensation to the insured person in the event of there being damage to the property insured. The standard fire policy covers damage to property caused by fire, lightning or explosion, where this explosion is brought about by gas or boilers used for domestic purposes.

This is limited in its scope as property can be damaged in other ways, and to meet this need a number of extra perils, known as special perils, can be added on to the basic policy. These perils can include:

n Storm, tempest or flood

n burst pipes

n earthquake

n aircraft

Accident Insurance: Personal Accident Insurance - The intention of the basic policy is to provide compensation in the event of an accident causing death or injury. What are termed "capital sums," is paid in the event of death or certain specified injuries, such as loss of limbs or sight as may be defined in the policy. The policy is usually extended to include a weekly benefit up to 104 weeks or more for compensation if the insured is temporarily totally disabled due to an accident and a reduced weekly benefit if he is temporarily only partially disabled from carrying out his normal duties. In the event of permanent total disablement (other than loss of eyes or limbs) an annuity is paid. Practice varies among insurers, some of whom pay a lump sum.

Sickness Insurance - Personal accident cover can be extended to provide a weekly benefit for an agreed upon period which may be restricted to 52 weeks, in the event the insured is temporarily totally disabled from engaging in his usual occupation due to sickness.

Engineering Insurance: The cover is intended to provide compensation to the insured in the event of the insured plant being damaged by some extraneous cause or its own breakdown.

Engineering insurers provide an inspection service on a wide range of engineering plants and this is a service much sought after by industry. Engineering covers can be summarized thus:

a) damage to or breakdown of specific items of plant and machinery

b) an inspection service of those items

c) cost of repair of own surrounding property due to (a)

d) legal liability for injury caused by (a)

e) legal liability for damage to property of other caused by (a).

Theft Insurance: Theft insurance was first introduced towards the end of the nineteenth century and was originally called "burglary insurance." Insurance companies included in their policies a phrase to the effect that theft, within the meaning of the policy, had to involve force and violence either in breaking in to or out of the premises of the insured for cover to apply.

Motor Insurance: The minimum requirement by law is to provide insurance in respect of legal liability to pay damages arising out of injury caused to any person. A policy for this risk only is available and is termed as an "Act Only" policy. A “'Third Party Only'” policy would satisfy the minimum legal requirements and in addition would include cover for legal liability where damage was caused to some other person's property. The most common form of cover is the “'Comprehensive Policy”' which adds accidental loss of or damage to the vehicle to the third party, fire and theft cover.

Miscellaneous Insurance

Money insurance - The policy provides compensation to the insured in the event of money being stolen either from his business premises, his home or while it is being carried to or from the bank.

Glass insurance - Accidental damage to glass, mainly plate glass windows but also glass doors and shelves, is covered by the Glass Insurance Policy. It is also possible to include damage to the shop front and the contents of the window.

TYPES OF LIFE INSURANCE POLICY

Life assurance contracts available are many and the basis of all these policies can be found under the following headings :

Terms Insurance: This is the simplest and oldest form of insurance and provides for payment of the sum assured on death, provided death occurs within a specified term. Should the life assured survive to the end of the term then the cover ceases and no money is payable. This is a very cheap form of cover and is suitable, for a young married man who wants to provide a reasonable sum for his wife in the event of his death. It can also be used for a variety of specific purposes such as business journeys.

Whole Life Insurance: The chosen sum assured is payable on the death of the assured whenever it occurs. Premiums are payable throughout the life of the assured until retirement of the assured. Although premiums may cease at, say, age sixty, the policy is still in force. Should the person die at age seventy-five, the policy would provide the benefits for his widow or family.

Endowment Insurance: The chosen sum assured is payable at the end of a given term of years or upon earlier death. These contracts are taken out as savings plans for the future with the added attraction of life cover. Endowment contracts will always be popular because each proposer earnestly hopes that he will live to the end of the term and spend the proceeds himself.

Annuities: When a person has a reasonably large sum of money and wants to provide an income for himself after he retires, or at some other time, he can approach a life assurance company and purchase an annuity. The annuity may start at once, when it is called an immediate annuity, or may start at some date in the future (a deferred annuity). Regardless of when it starts it can take various forms. It may provide an annuity for the life of the person, the annuitant, or it may be payable irrespective of death for a certain period, as in the case of the "annuity certain." The guaranteed annuity is similar in that it provides the annuity for a guaranteed period and thereafter until the annuitant dies.

Pension Schemes: These schemes are designed to provide an income at retirement. So far as insurers are concerned they may be asked to arrange a scheme, rather than a firm doing all the work itself. This involves collecting the premiums, investing them and paying pensions to retired people. Many schemes are endowment policies with group life insurance cover to provide benefits, should the death of a member occur before retirement age, but there are different ways in which this can be done.

INSURANCE IN AN ISLAMIC FRAMEWORK

Insurance is a socio-economic institution that reduces risk both to society and to individuals. This accomplished by combining, under one management, a large group of objectives so that the aggregate loss to which society is subject become predictable. Insurance has scientific basis and is effected by legal contract, under which the insurer for consideration promises to reimburse the insured for any loss suffered during the tenure of the contract.

There are many social and economic value of insurance, but the greatest value lies in the benefits following from the reduction of risk in society. Insurance has the advantage as a device to handle risk and, therefore, it is necessary that its services be extended in order to bring about the greatest economic advantage to a given society. In order to establish the validity of this point we must have clear concept about the socio-economic objectives of an Islamic Society.

Belief in Allah is central in the Islamic concept of society. This is the organizing force without which life losses it’s full meaning. Belief in a supernatural power reduces man's vanity and despair. Belief in one Allah does not mean that the individuals in the society are just the dolls in the hand of the Almighty. In fact, Islam fosters initiative and responsibility. The Quran insistently and consistently reminds people that they are judged on their own merits as independent, responsible individuals.

Another important aspect of Islam is that the society at large is based on the concept of humanity and brotherhood of the Muslim community. Concepts of universalism on the one hand and individualism on the other must be understood in its true spirit and applicability. Muslims in their minds should have a sense of awareness of mutual rights and obligations binding each individual of the society in their faith and Islam have a set of goals and values encompassing all aspects of human life including social, economic and political. The Islamic way of life being goal oriental, can be best understood by the practices of an organized community, which is governed in accordance with the tenets of Islam.

We all know that Allah has provided all necessary resources on this earth. Man, being the vicegerent of Allah on this earth, has the responsibility to utilize these resources for the general human welfare. According to Islamic principle, it is basically the moral responsibility of the individual to cater for his own needs through his own efforts.

The ethic of Islam clearly counsels against begging, against being a parasite living on the labor of others. In Islam, man's economic endeavor is praised and economic resignation is condemned. Islam suggests a great attention to every aspect of material life of men and women. The Shariah has given us a pattern of material wealth distribution with which to order our lives. In Islam every Muslim by law is entitled to get support from fellow Muslims if he can prove his need. The purpose of Islamic Law is always to inject morality and responsibility into the fabric of human relations. Islam is not only a religion but also the supreme unifying social bond. From history we know that the Madinites affiliated themselves as brothers and sisters with the Makkan-immigrants. They voluntarily and gladly shared their entire property with Makkan. This type of affiliation was not motivated by any kind of gain or profit or even a promise of gain or profit. It was simply motivated by conviction, commitment and dedication towards a common cause. The new principle of sharing was established. The Muslims drew a great amount of satisfaction from offering ones help, property and life for the cause what they believed to be the ultimate truth. In fact, the Islamic way of life is inconceivable without an organized community governed in accordance with tenets of Islam.

Therefore, in an Islamic society, all organizations and institutions including the State should cater to the welfare of the people. Islam considers mankind as one family. All members of this family are alike in the eye of Allah. There is no difference between the rich and the poor, the high and the low or the white and the black. There is to be no discrimination due to race, color or position. The only criterion of a man's worth is character, ability and service to Islam and humanity. Since Islam emphasizes distributive justice and incorporates in its system a program for organized community with the commitment of human welfare, there ought to be compulsory arrangement for insurance against unemployment and occupational hazards, old age pension and survivors benefit. The Islamic society should also provide assistance to those who because of disability, physical or mental handicaps or obsolescence, are unable to support himself or herself or to attain a respectable standard of living by their own efforts.

The objective of an Islamic Economic System is to create an exploitation free society and upliftment of the society as a whole. Therefore, any system or organization that is for the welfare of the mankind is not in contradiction with Islam. The objective of the Shariah is the promotion of welfare of people that lies in safeguarding their faith, life, intellect, posterity and property. Whatever ensures the safeguarding of these elements of human beings serves public interest and is desirable. This is because the basis of Shariah is wisdom and welfare of the people. Further, anything that departs from justice to injustice, welfare to misery, from mercy to harshness and from wisdom to folly has nothing to do with Shariah.

The principle foundation of insurance as an economic institution is the equitable distribution of the financial losses of a few over many. In insurance, each policyholder contributes an amount commensurate with the risk he introduces to a fund; established and administered by the insurer and out of the fund the losses are paid to the insured members. The main functions of an insurance organization then becomes the management of the fund and the assessment of the equitable contributions to be made by the policyholders.

In the business world without insurance, businessmen would have to set aside some of their capital resources against the possible losses that might occur. The capital thus safeguarded is freed for further development of the business. Apart from that, insurance removes the anxiety and thus helps to increase the efficiency of the business community. Insurance also helps to achieve a consistency of trading results and an avoidance of wide fluctuations. In this way insurance helps to develop and consolidate business on stable basis.

In the field of overseas commerce, the banks will not negotiate the bills of exchange unless the goods are insured against marine, and, sometimes, war risks. Even when the bank does not finance shipments, common prudence calls for marine insurance protection, as the cost of insurance is but a small fraction of the market value of the goods. Similarly, the large industrial organizations could not operate, as the banks would not be prepared to finance them without insurance arrangement. No large-scale enterprise could function, were it not possible to transfer many of its risks to insurer. Vast amount of capital in the form of premises, plant and machinery are at risk in industrial concerns. Without insurance, these risks would remain uncovered.

Human life has value for many reasons. The main economic problem that arises when someone in the family dies is the loss of earnings of the deceased person. In a business firm, if a key employee dies, the firm may lose valuable customers whose loyalty depends on this individual. The value of human life, apart from death, may also be diminished through loss of health by way of loss of earning due to disability and expenditure for medical care. Old age is another peril that affects earning capacity, just as premature death or loss of health.

Because human life is recognized to have great economic value, a demand has grown for life and health insurance. As a social and economic device, life insurance is a method by which a group of people may co-operate to even out the burden of loss resulting from the premature death of any member of that group. The purpose of life insurance is, therefore, primarily to accumulate wealth or property and, even if death intervenes, to ensure that the intended wealth will be available. Two distinct objectives of life insurance must be understood clearly. The first objective is termed a 'saving need' and the latter is termed as 'protection need'.

The basic theory of life insurance is that all who pay life insurance premiums to the common fund do so with the willingness that the fund should be used to compensate the estate of those contributors at whatever age in life they may die. However, increasing emphasis on the investment aspects of life insurance has tended to overshadow the primary purpose of protection against premature death.

The uncertainties of life are such that no man can say how long his life will last and every prudent and considerate person desires to make some provision for his dependants in the event of his death. The fundamental economic purpose of life insurance is to mitigate such possible loss.

Technically speaking, insurance is a socio-economic device, which implies sharing of losses sustained by some members of a group by all the members of that group. It provides economic security against loss of life or property or pecuniary interest. Insurance also provides indemnity to the persons for legal liability. Therefore, insurance as a system is acceptable to Islamic Society as it resembles the concept of Bait-ul-Maal (Ali 1989).

MODUS OPERANDI OF ISLAMIC INSURANCE (TAKAFUL) COMPANY

An Islamic insurance company transacts business on a co-operative basis in accordance with and subject to the principle of Islamic Shariah. All the functions of conventional insurance companies, i.e. underwriting, claims, reinsurance, marketing, investment, company management, etc. of Islamic Insurance Company should fully conform to Islamic Shariah Code. At the same time, the Islamic insurance companies should also make the scope and benefits of insurance coverage traditionally provided by the conventional companies available. Islamic insurance companies have developed extensive facilities to transact all classes of general insurance such as life, marine, fire, motor, accident, aviation, engineering, etc. Islamic Insurance Companies are now functioning very efficiently on most economic and competitive terms consistent with safety and security.

The cost of insurance is one of the most important factors in a sound analysis of risk. Both the insured and the insurer are interested in a rate that is fair. The basic criteria for rate making are:

a) The premium should be adequate but not excessive to meet the claims; and

b) The premium should be allocated among the insured on "fair" basis.

These criteria will be followed by an Islamic Insurance Company on a more rational basis. For example, a participant (policyholder) of a general Takaful (insurance) scheme shall enter into contract with the company on the basis of the principle of Mudaraba as per "partnership" clause of the policy. This clause stipulates the rights and obligations of the participants as well as the company. The Company, acting as an entrepreneur collects the Takaful contributions (insurance premium) from the participants and manage the various classes of general Takaful fund. The amount of the premium to be paid by the policyholder of an Islamic insurance company depends upon the class of Takaful and the rate fixed on the basis of sound principles of rate making. The participants shall pay the premium to an Islamic insurance company as "Tabarru". These Takaful contributions are credited into the "General Takaful Fund" of the company. The company in accordance with the requirements of the Shariah will invest the funds. All the profits from the investment shall be pooled back to the fund. The company shall pay from the General Takaful Fund compensation or indemnity to fellow participants, who have suffered a defined loss caused by one or more than one of the insured perils during the policy period. From this fund, operational costs of General Takaful Business, required reinsurance premiums are to be borne. Further, a “reserve” for unusual losses is to be built up from this fund. The surplus (profit) if any after meeting all these expenses and required reserve, will be shared between the participants and the company. However, the participants who had suffered losses should not have any share of profit as they have been already compensated out of this fund. This sharing of the surplus will be in a ratio agreed to in accordance with the principle of Mudaraba. The operation of the General Takaful is illustrated below.

Chart I: General Takaful Scheme of Islamic Insurance

The mode of operation of a General Islamic Insurance Company can be best described by taking an example. Say, the participants of fire risk contribute one crore taka in a particular year as Tabarru to a company, the company will keep this in a special account to be called Fire Takaful Fund. At the end of the year it may transpire as follows:

i) Claims paid or to be paid (25%) Taka 25,00,000
ii) Operational cost during the year (15%) " 15,00,000
iii) Reinsurance premium (20%) " 20,00,000
---------------------
Taka 60,00,000
The company may decide to keep reserve for unusual year (30%) Taka 30,00,000
---------------------
Taka 90,00,000

Therefore, the surplus money Tk. 10,00,000 can be distributed to the policyholder as per terms of the contract. If the ratio agreed is 70:50, then 70% of this surplus i.e. Tk. 7,00,000 will be distributed among the participants. This means a policyholder who has paid at the time of taking a cover as contribution Tk. 1,000/- will receive (Tk. 70/-) return on the amount of premium paid. This is only an example, the return can be as high as 20% to 25% depending upon the net underwriting surplus of a particular portfolio. This surplus will vary from year to year. In rare case, the policyholders may be asked to contribute additional premium.

FAMILY TAKAFUL SCHEME

The modus operandi for Islamic Insurance companies operating life business are almost similar but more clarification is needed. Life policies are issued in the name and style of Family Takaful Scheme. The participant or the policyholder of a Family Takaful Plan should pay the agreed amount of installments on a regular basis. Each installment paid by the participants is divided and credited into two separate accounts namely "The Participant Account" and the "The Special Account". Normally the major portion of the installment amount (say 90%) is credited to the Participants Account and the balance of 10% is credited to Special Account. The deposits are paid back to the participants as per terms of the contract with profit. The amount that is credited to the Special Account is meant for those participants who will not be able to pay full installments because of their early death. Thus the company will be able to pay Takaful benefits to all fellow participants who become members of the scheme. The amount that is credited into these two accounts is invested as per Shariah Code and profits are shared between the Participants and the Company in an agreed ratio. The major portion of the profit (say 80%) is paid to the policyholders and the company is entitled to get the balance amount of the profit only.

In the event of surrender of the policy, the incumbent participant will receive the proportion of his Takaful installment, which had been credited to Participant Account together with his share of profits accumulated up to the date of the surrender. But he will not be entitled to get any refund from the Special Account.

If a participant expires before the maturity of his Family Takaful Scheme, then his or her heirs will be entitled to get the total amount of the installments deposited in the Participants Account before his death along with his share of profit credited into Participants Account. His/her heirs will also be entitled to the total outstanding installments that would have been paid by the deceased participant, had he/she survived. If a participant is alive until the date of maturity of the Takaful Scheme, he/she is entitled to get the total amount of Takaful installments deposited in the Participants Account along with his share of profit. He will also be entitled to a proportion of net surplus, if any, which is available in the Special Account as per last valuation of this account before the maturity date. We can illustrate this in Chart 2 of Family Takaful of Tk. 2,00,000.00 -

Chart 2: Flow of Family Takaful Contribution

In the above Chart it has been assumed that for a Takaful plan of an individual for a twenty-year term the participants should contribute annually Taka 10,000. At the end of the year the Participants Account will be credited with Tk. 10,080.00 and the Special Account will be credited Tk. 1,120.00. In every year, these two accounts will be credited with more or less the same figure. The profit amount may vary depending upon return on investment. If the participants want to surrender i.e. not willing or are not capable he gets back his money credited in the Participants Account. For example, if a participant wants to surrender, at the end of the fifth year of the plan, he gets back Tk. 50,400.00 ( 10,080 X 5). He receives only the credit along with the profit in Participants Accounts. At the maturity i.e. at the end of the 20^th year, presuming that the rate of return is the same throughout the period he will get Tk. 2,01,600.00. He is also entitled to get his share of surplus money in the Special Account after paying for premature claims from this fund.

If we assume that the participant expires at the end of the 10^th year of the policy term, his nominee will get (Tk. 10,080 X 10 = Tk. 1,00,800 + 1,00,000). An additional 1,00,000 taka will be granted by the other participants in the scheme and will be paid from the fund created in the Special Account. Even if a participant expires after payment of a single annual contribution of TK 10,000, his nominee/heirs will get a guaranteed outstanding balance of Tk 1,90,000 plus his portion of Participants Account along with profit i.e. Tk. 10,080, total Tk. 2,00,080 under this scheme (Ali 2000).

HISTORICAL PERSPECTIVE OF CONVENTIONAL AND ISLAMIC INSURANCE

In the seventeenth century, there were no insurance companies as we know them today. The practice was for individuals, who came to be called "underwriters," because they wrote their names TO benefit the wording of insurance policies, to guarantee commercial ventures on a personal basis. 'Lloyds Coffee House' in Tower Street of London (owned by Mr. Edward Lloyd) proved to be a favorite venue for them to conduct their business informally over cups of coffee. Mr. Lloyd promoted the trend towards business by providing his customers with pen, ink, paper and shipping information. Lloyds Coffee House thus became recognized as a like place for persons wanting insurance cover to find underwriters.

During the course of the eighteenth century, the British Mercantile Fleet had increased in size and operations. It was found that many individuals who underwrote marine risks were undependable, and after receiving substantial premiums failed to pay claims. Therefore, in 1720, an Act was passed which provided for the incorporation of the Royal Exchange Assurance and the London Assurance Companies for the purpose of effecting marine insurance. Each of these two companies had a substantial stock. Since the companies offered cover of a very restricted nature and consistently refused to underwrite any but the safest risks, the purpose of the Act was defeated and Lloyds Coffee House was established as the most important center of marine underwriting.

This system resulted in considerably less security to the insured than would have been provided by associations of individuals. Although many merchants would have much preferred to insure with the companies, and would have been prepared to pay higher premiums to them, they were not able to do so. Since the companies and Lloyds Coffee House operated from London, the difficulties encountered by traders from other ports in the UK were much greater. As a result, groups of ship owners at various ports joined together to settle own hull loss (averages) on a mutual basis, each member underwriting share of the risks, for which he was individually responsible. In such clubs each member is both insured and insurer. All the other members in proportion to their respective properties in it insure him to his own property in the club, and he is at the same time an insurer in the proportion of his own property in the club for the property of the each of the others.

In 1824, when the monopoly to the London Assurance and the Royal Exchange Assurance was removed, several other companies were founded. However, in practice, it was found that the underwriters established at Lloyds were able to quote rates. The result was that the better class of vessel was insured at Lloyds and the Clubs were left with the risks that were unacceptable elsewhere. This led to the decline of hull clubs in the long run. But in marine insurance, the P & I Clubs were very important market component in the field of ship owners liability insurance.

In the context of the above we will look into the background of the formation of the first Islamic Insurance Company. With the establishment of the Dubai Islamic Bank and the Islamic Development Bank, as the starting point of Islamic Banking Movement, H.E. Prince Mohammed-al-Faisal-Al-Saud of Saudi Arabia took initiative for the establishment of a number of Islamic Banks. In one such initiative, in February 1976, he held discussions with H.E. Gafar Nimeiry (the then President of the Democratic Republic of Sudan) and asked for permission to establish an Islamic Bank to be operated in Sudan. Executive and Legislative authorities in the Sudanese Government at all levels gave every encouragement and acceded to the proposal. In August 1977, Faisal Islamic Bank was registered as a public limited company under the Sudanese Company Act-1925.

When Faisal Islamic Bank was established, the bank authorities initiated studies on the establishment of a co-operative insurance company. In this respect the opinion of the Bank's Shariah Supervisory Board (SSB) was sought. The SSB studied the scheme at the first meeting. Studies continued and several steps followed. The Faisal Islamic Bank Authorities prepared the Memorandum of Association and Article of Association. The SSB proposed some amendments, which were implemented. The SSB ensured that the scheme was sound from a Shariah point of view as well as feasible from a practical point of view. Therefore, the Islamic Insurance Company Ltd. Sudan was incorporated as a Sudanese Public Company (under the Companies Act 1925) in January 1979. This is the first ever-insurance company established in the world to transact business according to the Islamic Shariah. The Faisal Islamic Bank has subscribed to the entire authorized capital of this company. The company enjoys numerous concession and exemptions. All its assets and profits are exempt from all types of taxes. Further, the assets of the company are not subject to confiscation, nationalization etc. The Company is also exempt from the application of acts regulating insurance in Sudan.

In Malaysia, the Islamic Insurance Company was established as a private limited company (in accordance with companies Act 1965) in November 1984 and started its operation in August 1985 as a composite insurance company. This was made possible by the Malaysian Government who, in 1982, took a positive step by forming a special body known as the "Task Force" for the study of the establishment of Islamic Insurance in Malaysia. This Task Force was formed on the basis of the recommendations of the National Steering Committee on Islamic Bank, which highlighted in its report to the Malaysian Government the need for an Islamic Insurance. The Committee felt that it was necessary in order to cater the insurance requirement of the Islamic Bank that was about to be launched. Members of the Task Force were drawn from personalities and groups representing religious scholars, legal experts, economists and insurance practitioners. The members of the task force visited a number of Islamic countries and also had discussions with three Islamic Insurance Companies already established or about to be established. Finally, in its report to the Government, the task force suggested that an Islamic Insurance company should be established in Malaysia as soon as possible. The Malaysian Government then promulgated legislation entitled as the Takaful Act, which regulates the Islamic Insurance (Takaful) of Malaysia. It may be of interest to note that in Malaysia, the Islamic Insurance Company (known as the Syarikat Takaful Malaysia) is practically a subsidiary of Bank Islamic Malaysia Berhad, which owns 51% of the paid up capital of the Takaful Company. The balance 49% of the shares are owned by the various state religious councils and state religious foundations within Malaysia.

DISTINGUISHING FEATURES OF ISLAMIC INSURANCE

From historical background of conventional companies we find that three predominant legal forms have been used as follows:

a) Association of Individuals (Lloyds)

b) Stock Companies

c) Mutual Companies, and Clubs

A Lloyds Association is an organization of individuals joined together to underwrite risks on a co-operative basis. Here the individual underwriter assumes risks in his own name and does not bind the organization for his obligations. Each underwriter is individually liable for losses on which he has assumed risks. Thus it can be said that a Lloyds Association is proprietary organization bent on profit and the underwriter is always an individual. On the other hand, a stock company is the corporate body of stockholders that is organized as a profit-making venture in the insurance field. However, the Mutual companies and the clubs are organized as a non-profit corporate body that is owned by policyholders as there are no stockholders.

However, in the case of Islamic insurance, we observe that the corporate objective of the Islamic Insurance Company is to provide Islamic Insurance or 'Takaful' service on a commercial basis in accordance with Islamic Principles in order to provide the service of insurance as permissible in the Shariah.

In this respect, it has been observed that an Islamic Insurance Company be established on condition that its co-operative nature be made evident. This necessitates clear stipulations in the insurance contract and certain additional clauses to signify that the premiums paid by the insured are grants from him to the company to be remitted to fellow contributors in need of assistance according to the regulations agreed upon. Therefore, it has been suggested that certain special clause should be added to the insurance contract to signify its co-operative nature. The additional terms provide the insurer the right to revert back to the insured for additional premium and the right of policyholders to share in the surpluses. The insurer also enjoys the right to invest the surplus fund in any way that it deems fit in projects and other fields of investment as allowed by Shariah and under the relevant insurance rules or regulations.

Islamic Insurance Co. (Sudan) has incorporated these principles by way of inserting additional clause in the policy condition as follows:

Co-operative (Mutual Clauses): "The Insurance granted under this policy is subject to company's Memorandum and Article of Association which provide inter alia that the company shall transact business on a co-operative basis in accordance with the subject of the Islamic Shariah. The Company accordingly maintains a distinct and separate account for its policyholders known as the policyholders Account. The Policy holders account is credited with all the premiums paid by them gratuitously and debited with their share of service charges, claims and the surplus, if any arrived at after making provision for depreciation, bad and doubtful debts and establishing traditional technical services at the end of each financial year shall be treated as follows:

(a) The Board may set aside all or part of the surplus as general reserves or other special reserves and such reserves shall be considered as gratuity from the policyholders.

(b) If the whole of the surplus has not been set aside as reserves the balance shall be distributed amongst the policy holders in proportion to the surplus generated by the premiums paid by them".

Investment Fund Clause: "The Company invests the funds held by it on behalf of the policy holders in accordance with the principles of Islamic Shariah Code".

Dr. Abdul Halim Bin Hazi Islamil, the Chairman of Syarikat Takaful Malaysia, has explained the above principles as follows:

"The provision of insurance cover as a form of business in conformity with Shariah is in essence based on the Islamic principles of Al-Takaful and Mudaraba - Al-Takaful briefly means the act of a group of people reciprocally granting each commercial profit sharing contract between the provider or providers of fund for a business venture and the entrepreneur who actually conducts the business. The Islamic insurance or Takaful business conducted by the company may thus be envisaged as the profit sharing business venture between the Company an the individual members of a group of participants who desires to reciprocally guarantee certain loss or damage that may be inflicted upon any one of them."

From what stated so far we obverse that an Islamic Insurance company should have following features:

(a) The policyholders should have the right to participate in surplus profits .

(b) The policyholders should be liable to contribute additional amounts if the initial subscriptions (contributions) made during a particular year are not sufficient to meet all the losses.

(c) The policyholders may be given representation on the Board of Directors of the company.

(d) The company would invest its funds in sources that are not forbidden by Islam and should not indulge in the harmful and forbidden practice of Riba in any form.

(e) The company would maintain two separate and distinct accounts. One known as the policyholder’s account and the other the shareholders accounts.

(f) The policyholder’s account is credited with all the contributions made by the policyholders and their share of profits on investment of funds. The policyholder account is debited with their proportion of service charges and claim.

(g) The surplus after the establishment of necessary reserves is distributed amongst policyholders.

The deficit, if any, is written off against the general reserve.

(h) If there is no general reserve or the amount of the general reserve does not cover the deficit

fully, such deficit is met from the shareholders reserve and capital in the form interest-free loan

to be recovered from the future surpluses.

(i) The shareholders do not participate in any part of the surpluses of the policyholders account.

(j) The income derived from the investment of the share capital is credited to the shareholders

account the surplus left after meeting their share of current expenses etc., is distributed amongst

shareholders.

(k) A Zapata fund will be developed by way of charging 2.5% annually on the share capital,

reserves and profit.

(l) There should be a Shariah supervisory Board. The Board will be responsible for supervising the

day-to-day functions of the company in the light of Shariah (Ali 1991).

INVESTMENT OF PREMIUM UNDER ISLAMIC INSURANCE

The insurance industry as a whole, and an individual insurance company in particular, plays a vital role in the development of a capital market. However, investment of an insurance company is mostly guided by relevant provisions in the Insurance Act, which provides formulae for minimum investments required by a particular company depending upon the type or types of businesses and on the basis of liabilities involved in a particular year. The Act also specifies the percentage of investment to be made in Government Securities, Approved Securities and other Approved investments as may be notified from time to time. Subject to the restrictions made by the Government, investments of an insurance company are made in the following categories:

· Government Securities (including Bills, Bonds and Certificates)

· Shares

· Debentures

· Real Estates

· Deposits with Banks

· Bridge Finance

Investment Guidelines are set out in Section 27, 27A, of Insurance Act 1938 as adopted in Bangladesh. About 60% of the life funds require to be invested in Government or other approved securities. The balance is allowed in approved investments.

Investment operations are incidental yet crucial to the business of insurance. Insurers are required to generate reserves for claims that might arise and over a period a large corpus of funds is built up. It is essential that insurance companies invest these funds judiciously with the combined objectives of liquidity, maximization of yield, security, and most importantly, ensuring that they can meet the liabilities when required. The choice of investments will depend on the type of liabilities. Returns on investments from life insurance funds influence, to a large extent, premium rates and bonuses. It has been recommended that the insurers must at all times maintain a prescribed minimum level of solvency as a protection for the policy holders' legitimate interests. Because of public interest, investment of life insurance funds is regulated in some countries. Most countries do not prescribe the investment pattern, but instead set ceilings on the maximum value as a percentage of the fund in each of the different categories of investments that are admissible for the purpose of determining the solvency margin.

In Singapore, up to 35% of the fund can be invested in equity shares, preference shares, subscription rights and share warrants. Up to 5% is allowed in unquoted shares and up to 20% is allowed in property. The admitted value of outstanding premiums and agents' balances (in respect of general business only) is 12.5% of written premiums. In Malaysia, the value of investment securities should not be less than 25% of the total value of the fund and not less than 80% of the fund should be invested in Malaysia.

The life insurance industry will be competing against other financial institutions, life banks, mutual funds, and unit trusts for the investor's moneys. A level playing field is required to promote healthy competition between these different types of financial institutions. Therefore, it is recommend that the requirement for life insurance companies to be heavily invested in Government Securities be removed. Investing in equities is more volatile than investing in Government Securities but it is possible to improve returns by efficient and timely market operations and to reduce risks by properly matching assets against liabilities. A dynamic approach to the management of equities with requisite information support and the application of the techniques of security analysis is called for in the interests of the insuring public.

The general insurance sector will have liabilities, which are shorter in term as compared with the life sector. Equity investments are generally made with a medium to long-term perspective and hence the maximum investment allowed in equities should be lower for the general insurance companies than in the life sector.

An Islamic Insurance Company shall have to be guided by the relevant law of the country, but, at the same time, it must use the investible funds in financing and participating in permissible economic activities according to Shariah provided modes on profit and income sharing basis. Therefore, investment of Islamic Insurance Companies should be made as per the following modes:

(a) Musharaka (Sharing profit and loss on a productive investment).

(b) Mudaraba (project finance for a fixed time with profit and losses being shared)

(c) Real Estate

(d) Deposits with Islamic Banks.

Government and other approved Securities are interest bearing. Naturally, the Islamic Insurance Companies cannot invest the permissible required surpluses in these Securities. Therefore, in order to meet the requirements of Islamic Insurance Companies, it would be necessary to amend the relevant sections of the Insurance Act, so that it allows the Islamic Insurance to invest funds only as per Shariah approved means and modes (and not in any interest bearing Securities and deposits). Alternatively, it is necessary that the Parliament frames out and passes the required Islamic Insurance Act as per the model of Malaysia Takaful Act 1984. In fact the proposed Act has to be modeled on the existing Insurance Act with modifications and amendments, which are necessary to conform to Islamic Insurance practices.

Any source