A Critique of Creative Shari'ah Compliance in the Islamic Finance Industry

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Ahmad Alkhamees defines Creative Shari‘ah compliance as compliance with the letter but not the objectives of Shari‘ah. In recent years, Islamic finance industry practises have come under scrutiny, with strong critiques levelled against many institutions that claim to provide Shari‘ah-compliant products and services, which in fact undermine the spirit and the objectives of Shari‘ah. This book significantly contributes to the sphere of Islamic finance in three main ways. First, it critically appraises justifications of creative Shari‘ah compliance practises. Second, it examines how Shari‘ah supervisory board (SSB) governance practises, and the inconsistent fatwas issued by SSBs, contribute to the issue of creative Shari‘ah compliance. Most importantly, it suggests regulatory mechanisms which regulators can employ in Islamic countries such as Saudi Arabia and in secular countries such as the United Kingdom to deal with the issue of creative Shari‘ah compliance.

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Ahmad Alkhamees (Ph.D. (2014), University of Warwick), holds degrees in both Islamic law and English law. He is a published author on comparative law and Islamic law. He is a Co-founder of Harasani & Alkhamees Law Firm in Jeddah, Saudi Arabia, certified arbitrator, and a former judge in Riyadh’s General Court.
Acknowledgements
Brill’s Simple Arabic Transliteration System
Glossary of Arabic Terms
Table of Cases
List of Statutes
List of Figures and Tables
Abbreviations

Introduction

1 An Overview of Shariʿah
 1.1 Introduction
 1.2 Overview of Shariʿah and Its Foundation
 1.3 Schools of Thought
 1.4 Islamic Legal Ruling
 1.5 Main Features of Islamic Finance
 1.6 Shariʿah-Compliant Financial Instruments
 1.7 The Objectives of Islamic Law
 1.8 Conclusion

2 The Form Versus Substance Debate and the Roots of Creative Shariʿah Compliance in Islamic Finance: Why Reinvent the Wheel?
 2.1 Introduction
 2.2 The Definition of Ḥīlah
 2.3 The Origins and the Evolution of Ḥīlah
 2.4 Positions on Ḥīlah of Islamic Schools of Thought
 2.5 Refuting the Pro-Ḥīlah Arguments
 2.6 Conclusion

3 Tawarruq as a Case Study of Creative Shariʿah Compliance
 3.1 Introduction
 3.2 Definition of Tawarruq and Selection Rationale
 3.3 The Development of Tawarruq
 3.4 The Differences between Jurisprudential and Organised Tawarruq
 3.5 Forms of Tawarruq
 3.6 Shariʿah Jurists’ Views on Tawarruq
 3.7 Conclusion

4 Standardisation of Fatwās to Reduce Creative Shariʿah Compliance
 4.1 Introduction
 4.2 Standardisation: A Definition
 4.3 Why Is Standardisation Needed?
 4.4 Causes of Juristic Differences
 4.5 Remedies for Inconsistency
 4.6 Conclusion

5 The Impact of Shariʿah Governance Practises on Shariʿah Compliance in Contemporary Islamic Finance
 5.1 Introduction
 5.2 Shariʿah Supervisory Board Definition
 5.3 The Importance of SSBs
 5.4 Regulatory Issues Surrounding Shariʿah Supervisory Boards
 5.5 Conclusion

6 Public Mechanisms to Remedy Creative Shariʿah Compliance
 6.1 Introduction
 6.2 Overview and Justification of CSSBs
 6.3 Tasks of CSSBs
 6.4 The Central Shariʿah Board in Sudan
 6.5 The Central Shariʿah Board in Malaysia
 6.6 UK Regulators’ Approach towards Shariʿah Governance
 6.7 Saudi Regulators’ Approach towards Shariʿah Governance
 6.8 Compulsory Disclosure
 6.9 Conclusion

7 Private Mechanisms to Remedy Creative Shariʿah Compliance
 7.1 Introduction
 7.2 Shariʿah Compliance Rating
 7.3 Shariʿah Indices
 7.4 Private External Shariʿah Auditing Firms
 7.5 International Islamic Financial Standards
 7.6 Whistle Blowing
 7.7 Characterising the Articles of Association
 7.8 Conclusion

Conclusion

Bibliography
policy makers, financial regulators, practitioners in Islamic finance, scholars, researchers and students who major in Islamic finance, Islamic law, Arab law, comparative law, financial regulation and banking