Regulating the Governing Law Clauses in Sukuk Transactions

Journal of Banking Regulation (2015) 16, 220–249. doi:10.1057/jbr.2014.3

Posted: 7 Nov 2018

See all articles by Umar Aimhanosi Oseni

Umar Aimhanosi Oseni

International Islamic University of Malaysia (IIUM)

M. Kabir Hassan

University of New Orleans - College of Business Administration - Department of Economics and Finance

Date Written: 2015

Abstract

The crystallization of the Islamic capital markets (ICM) in the last decade has led to increased acceptance of Islamic financial products in the global market. However, a fundamental question that lies at the intersection of law and ICM that has a far-reaching impact on market practices is the extent to which the governing law clause in a typical Sukuk prospectus protects the interest of the parties and meets the ends of justice. An analogous clause within the governing law provision is the dispute resolution clause, which either makes or mars the whole transaction depending on how it is structured. This article argues that as part of Islamic finance documentation involved in the process of structuring a Sukuk transaction, one important aspect the parties must get right from the beginning is the governing law clause. With the increasing provision of English law as the governing law, a question that readily comes to one’s mind is whether it is possible to have an alternative governing law while retaining the choice of jurisdiction clause. In order to create a regulatory environment that is conducive to the prevailing trends in the modern world, this study critically ploughs through the governing law clauses of 10 selected Sukuk prospectuses and makes interesting findings regarding the attitude of drafts men and their clients. A preliminary finding of this study is the paradigm shift to arbitration as an alternative or precondition to litigation in some of the Sukuk prospectuses reviewed. As there are regional and international arbitral institutions set up exclusively for Islamic finance disputes, it may be more appropriate to resolve any dispute arising from a Sukuk transaction under shari’a-compliant rules and supervised by experts in Islamic law. The interviews conducted for this research with 10 prominent shari’a scholars who have been involved in the certification of Sukuk structures prove this hypothesis, and the qualitative data are consistent with it, albeit with some dissenting views.

Keywords: Islamic Finance, Islamic Capital Market, Sukuk, Governing Law Clause, Choice of Law, Dispute Resolution

Suggested Citation

Oseni, Umar Aimhanosi and Hassan, M. Kabir, Regulating the Governing Law Clauses in Sukuk Transactions (2015). Journal of Banking Regulation (2015) 16, 220–249. doi:10.1057/jbr.2014.3, Available at SSRN: https://ssrn.com/abstract=3263382

Umar Aimhanosi Oseni

International Islamic University of Malaysia (IIUM) ( email )

P.O. Box 10
Jalan Gombak
Kuala Lumpur, selangor 50728
Malaysia

M. Kabir Hassan (Contact Author)

University of New Orleans - College of Business Administration - Department of Economics and Finance ( email )

2000 Lakeshore Drive
New Orleans, LA 70148
United States

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