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ByHeiko Hesse

The recent debt restructuring of Dubai World and the last minute rescue of property subsidiary Nakheel, which issued one of the largest Islamic bonds three years ago, has shaken the confidence in Islamic finance owing to growing controversy about the interaction of shari’ah compliance and principles of investor protection in times of distress. As creditors are about to sign their settlement agreements in late April 2010 there remains general concern about whether shari’ah compliance might hamper an orderly dispute resolution under conventional law and about thelegal enforceability of asset claimsunder the current Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI) recommendations on sukuk structures. With the clear benefit of hindsight, this brief note speculates on possible outcomes of legal proceedings if the Nakheel sukuk had defaulted and discusses some potential implications for the wider sukuk market. The note also briefly touches upon the recent UK ruling in the Investment Dar case.

Overview and Legal Enforceability

The $3.5 billion Nakheel structure, explicitly guaranteed by Dubai World (but not by the Government of Dubai), was a commercial leasehold interest-based sukuk al-ijara (lease-based) with assets being mostly Dubai waterfront properties (Figure 1). [1] While the issuance of sukuk certificates in this transaction was governed by English law, the issuing special-purpose vehicle (SPV) itself was incorporated in the Jabel Ali Free Zone, subjecting the sale or lease of the collateral assets to shari’ah-based United Arab Emirates (UAE) law as applied by Dubai courts. However, this arrangement raised questions whether shari’ah compliance would uphold legal enforceability of investor claims, and possibly encroach upon dispute resolution under conventional law.

Repayment of Asset Value – Restitution interest in asset-linkage?

While Islamic jurisprudence would most certainly have rejected the permissibility of principal protection of sukuk investors, scholarly opinion would have permitted repayment of the original asset value at the time of issuance (which was lower than the nominal amount). According to shari’ah principles, in general issuers cannot guarantee principal through re-purchase of underlying assets for a fixed nominal value or offer a credit guarantee. Any repurchase can only occur at net value or fair market value. However, since the Nakheel transaction involved commercial leasehold properties, the legal action consistent with current AAOIFI recommendations on ijara (lease-based) sukuk would have permitted repayments up to the amount of remaining lease payments or original asset value (which would have resulted in a forbearance on interest).

Shari’ah courts would have likely ruled favorably on the substantive non-consolidation of collateral assets (“bankruptcy remoteness”), opening the door for investor recourse.Although shari’ah law requires payoffs from state- or time-contingent profit/loss sharing arrangements, this principle is tied to contractual certainty associated with directownership. Regrettably, the original terms and conditions of the Nakheel sukuk ruled out such direct asset linkage. Investor claims arising from the sukuk were considered only pari passu asset-based (and not secured asset-backed) handing investors ownership of the cash flows but not of the assets themselves. Relegating investors to nominal holders of securities (rather than actual legal owners of the underlying assets), however, contradicts recommendations of AAOIFI’s shari’ah board on sukuk and shari’ah principles at large. Since shari’ah law would likely to have been applied as a matter of form in the case of Nakheel, the opinion of Dubai courts could have overridden commercial legal concepts stipulated in the transaction prospectus, and quite possibly, re-qualified the legal nature of the transaction.[2] Thus, creditors of Nakheel should have reasonably expected the severity of a likely haircut to be mitigated by some asset recourse if shari’ah law had been deemed the forum of dispute resolution and courts enforced direct ownership rights held by creditors (barring extension of sovereign immunity to Dubai World[3], Nakheel’s parent company and ultimate guarantor).[4]

Consequences from the Nakheel Fallout

What are the wider implications for the sukuk market in the Middle East and elsewhere?Investor sentiment for sukuk issuances has been severely damaged from the Nakheel initial debt standstill and might halt the strong rebound of the sukuk market this year in the wake of continued uncertainty about investor protection. Prior to recent events, developments have been very positive. In 2008, overall sukuk volume dropped to $17.2 billion from $36.2 billion while issuance in the second quarter of 2009 alone already exceeded total issuance in 2008 (see Figure 2). According to the Islamic Finance Information Service (IFIS), $53 billion of the overall $127 billion sukuk market is either sovereign or quasi-sovereign paper. More than 40 percent ($23 billion) of outstanding sukuk (sovereign and private) is attributable to entities in UAE, of which US$14.8 billion was issued by Dubai-based companies, $6.95 billion by Dubai World companies, and $5.25 billion by their subsidiary, Nakheel.

Focus on Governance and Transparency

In general, the Nakheel case underscores many governance issues that have beset financial innovation in Islamic finance.Considerable heterogeneity of scholastic opinion continues to hamper the creation of a consistent regulatory framework and corporate governance principles. Islamic jurisprudence is neither definite nor bound by precedent in absence of unified principles on which shari’ah scholars decide on compliance of new products. Fragmented opinions of shari’ah boards have inhibited universal recognition and enforceability of rulings, which has raised the spectre of “shari’ah risk” in cases when sukuk are governed by conventional law while the underlying cash flow generating assets are located in countries subject to shari’ah law.

At the same time, recent legal charges brought against arrangers of Islamic capital market transactions have further deepened skepticism by confounding the delineation between conventional and shari’ah law. In the recent U.K. court case the Kuwaiti asset management firm Investment Dar, is wrangling over the repayment of a separate type of debt to Bank Blom, a Lebanese bank, on the grounds that the purported wakala (principal-agent) agreement between both firms was not consistent with shari’ah law. The English court ruled that the Investment Dar was only liable for the principal and not the profit share. It remains to be seen what the full repercussions are for Islamic finance but there is a danger that the court ruling could set a precedent for other similar cases.

Going forward, the current controversy will raise expectations of enhanced transparency of sukuk structures as recent defaults[5] have served as a poignant reminder of many risks that investors had not priced in before.As the differentiation between a private sector-issued sukuk and an issue with implicit government backing has become increasingly blurred over the years, investors will probably like to see explicit guarantees if issuers are seen as quasi-sovereign. Overall, the Nakheel bond issue was the first real test case for shari’ah-compliant bonds, and this episode highlighted some areas that will hopefully induce investors to call for a more robust sukuk infrastructure and more clarity on the legal enforceability of claims, including the degree of bankruptcy-remoteness of reference assets, which have historically remained on the originator’s balance sheet. Thus, with new asset-backed structures still rare, greater investor caution paired with fragmented supply will likely make the issuance of sukuk more costly over the short term.

Note: The views expressed in this article are those of the authors and should not be attributed to the IMF, its Executive Board, or its management. Any errors are the responsibility of the authors.