Rozprawy doktorskie: „Islamic banking law”

1

Yuspin, Wardah. "Facilitating the growth of Islamic banking law and Islamic banking in Indonesia : new laws and new challenges". Thesis, University of Leeds, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.713882.

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The growth of Islamic banking and financial services (IBF) industry has generated considerable interest in the financial world in recent decades with no exception in Indonesia. The legal infrastructure for the development of IBF in Indonesia has been strengthened with the enactment of Islamic Banking Law No. 21 of 2008. The law includes two new arrangements that are expected to bring about changes in the IBF industry; namely Articles 55 and 68. In light of those articles, it is also essential to observe the development and practice of this industry in selected countries; namely Malaysia and Pakistan. Despite the difference of their legal systems (the practice of the Common Law Systems there as opposed to the Civil Law System in Indonesia), these two countries have been chosen for the resemblance of their IBF industry with the one developed, practiced and offered in. Indonesia. Particularly in Malaysia, the promulgation of the Central Bank Act 2009 and the Islamic Financial Services Act 2013 were aimed at enhancing its legal infrastructure that will not only protect its IBF industry but will ensure stability, growth and confidence of all players and stakeholders. Substantively, Article 68 deals with the Islamic window/ Islamic unit separation. It is quite natural to conclude that Window Model serves only as a transitory mechanism. Therefore, that model is mandated and/or limited to be a mere spun-off or temporary structure for IBF institutions from their parent banks before subsequently becoming a full-fledged institutions. Since this is mandatory, any Islamic window that violates this provision will be fined, or further, their licence will be revoked. Meanwhile in those particular countries this model is still allowed and can be adopted by conventional banks offering IBF services. However, the conventional banks will only be allowed to, offer IBF services once they have demonstrated their serious commitment to IBF and have a clear roadmap towards full conversion of their operations into a full fledged Islamic bank. Whilst Article 55 (1) affirms that the religious court is the institution authorised to settle dispute on matters concerning Islam and the economy, Article 55 (2), nonetheless, provides that if the litigants are in agreement, they can choose to refuse submission to the jurisdiction of the religious court jurisdiction and alternatively choose another forum such as district court to adjudicate the dispute. The selection and submission to another forum, such as the district court, can potentially bring about a conflict of authority and jurisdictions between the district courts and the religious courts. However, according to the decision of the Constitutional Court No.93PUU-X/2012 the Islamic financial disputes fall under the absolute competence of the religious court. While in those selected countries, the Islamic disputes are tried and heard before the jurisdiction of their civil courts, despite the fact that there is a designated civil court in Malaysia that will handle disputes relating to IBF. That choice of forum to render decision on this dispute raises the problem, since many judges who render decision on this case are in favour of the civil law rather than Shari'a (Islamic law). While the Islamic disputes are not merely commercial disputes but involves the questions of Shari matter(s). In this regards, a closer scrutiny on the Malaysian Central Bank Act 2009 will be useful since it provides for reference to the Shari'ah Advisory Council by the courts or arbitrators adjudicating matters relating to IBF disputes. With the rapid advancement of IBF industry and various products and services it offers, disputes are then inevitable. Premised on this realization, this thesis strongly examines and advocates that a proper and strong legal framework and infrastructure as well as substantial support of the legal fraternity are crucial prerequisites for a healthy advancement and significant growth of IBF industry. Therefore with the inclusion the Art 68 and 55 of the Islamic Banking Law, this industry is seen moved towards this advancement.

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Björklund, Iréne, i Lisbeth Lundström. "Islamic Banking - An Alternative System". Thesis, Kristianstad University College, Department of Business Administration, 2005. http://urn.kb.se/resolve?urn=urn:nbn:se:hkr:diva-3145.

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Islamic banking is an investment and financing system which expands globally. The Islamic banks have only been established for some 30 years but the banking system is based on long-going traditions within Islamic finance. The system is founded on ethical values and emphasises the well-being of society as a whole.

Islamic banking is different from conventional banking in most aspects, since its close tie to religion is very important. The system is not based on interest, as it is prohibited in Islam. Instead Islamic banks offer various kinds of accounts and a range of financing alternatives all complying with the Islamic Law – Shari’a. To work according to Shari’a is crucial for the banks and their activities are controlled by a special Religious Supervisory Board working within the bank.

The implementation of the Islamic banking system varies to some extent between Islamic countries. It has been influenced by its connections to politics of and the history in the countries where the system operates. As a result to the variations between the states’ implementation, the need for harmonisation increases as the expansion of Islamic banks continues. Several organisations work to achieve international standardisation and harmony to make the banking activities more transparent and attractive. The achievement of harmonisation as well as the performance of the banks is crucial for the future of Islamic banking.

The dissertation is based on extensive literature review and a personal interview with a professional within an Islamic bank in Lebanon.

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Shaharuddin, Amir. "A study on Mudarabah in Islamic law and its application in Malaysian Islamic banks". Thesis, University of Exeter, 2010. http://hdl.handle.net/10036/107900.

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The contrast between the theory and practice of Islamic banking is generally acknowledged by many scholars. After more than three decades in operation, the rapid growth of the Islamic banking industry is, in reality being driven by the application of the debt-like contracts (e.g. murÁbaÎah and ijÁrah) rather than the profit and loss sharing contracts (e.g. muÃÁrabah and mushÁrakah). As the adaptation of the former contracts creates "unauthentic" Islamic financial products, many have questioned their compliance with sharÐÝah principles. The present study analyses this issue by examining the application of muÃÁrabah rules in Malaysian Islamic banking practices. It evaluates the extent to which the current practices fulfil the principles and the ethical framework of the muÃÁrabah contract as propounded by the classical jurists. The study also analyses the justifications of Malaysian sharÐÝah scholars for modification of the doctrine, adapting it to the modern banking business. The study found that the local sharÐÝah scholars have adopted an incoherent legal methodology when making their ijtihÁd. They can be very rigid, concentrating solely on the legal technicality and at the same time be very flexible, adapting an unregulated doctrine of maÒlaÎah. Therefore, some of their resolutions could be seen as contradictory to the rulings found in classical fiqh.

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Baamir, Abdulrahman. "Saudi law and judicial practice in commercial and banking arbitration". Thesis, Brunel University, 2009. http://bura.brunel.ac.uk/handle/2438/6599.

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This thesis examines various issues of arbitration law and practice in relation to the Islamic Shari’a law and the law of Saudi Arabia in general, and for arbitration in conventional banking disputes in particular. The thesis found that the Shari’a regulates arbitration tightly compared to other contemporary developments as no fundamental differences were found to exist between the classical Shari’a arbitration rules and the Saudi arbitration regulations, which represent the codification of the Hanbali law of arbitration. Unlike other arbitration laws, almost all kinds of disputes can be settled by arbitration in Saudi Arabia, and these include family and some criminal disputes such as murder and personal injuries. Moreover, this thesis demonstrates the difference between Islamic law and Saudi law. The latter is more comprehensive as it includes Islamic law and the borrowed Codes and Acts of the laws of other nations. The legal status of banking interest under the Saudi law is not clearly defined and it is not clear whether riba contradicts with the public policy of Saudi Arabia or not. This uncertainty has an impact on arbitration related to banking disputes and has led me to conclude that arbitration is not the best method for settling disputes involving domestic conventional banking business. Although resorting to the Committee for the Settlement of Banking Disputes of SAMA might provide a better solution, the decisions of the Committee are not “strong” enough to be fully enforced and the payment of interest continues to be an avoidable obligation in Saudi Arabia; therefore, the thesis examined the alternative remedies for both domestic and international banking arbitration. The thesis also found that if the enforcement of an international arbitration award is sought in Saudi Arabia, the award will be subject to the mandatory application of Shari’a law, which in addition to the imposition of interest, prohibits also certain kinds of commercial contracts.

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Ahmad, Abu Umar Faruq. "Law and practice of modern Islamic finance in Australia". View thesis, 2007. http://handle.uws.edu.au:8081/1959.7/38404.

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Thesis (Ph.D.)--University of Western Sydney, 2007.
A thesis presented to the University of Western Sydney, College of Business, School of Law, in fulfilment of the requirements for the degree of Doctor of Philosophy. Includes bibliographies.

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Rahman, Suhaimi Ab. "The Classical Islamic law of guarantee and its application in modern Islamic Banking and legal practice". Thesis, Aberystwyth University, 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.497033.

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Al-Shamrani, Ali Saeed. "Islamic financial contracting forms in Saudi Arabia : law and practice". Thesis, Brunel University, 2014. http://bura.brunel.ac.uk/handle/2438/9145.

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The main objective of this research is to examine whether the current practices of Islamic banking and financial activities in Saudi Arabia are compatible with the principles of Shariah. This examination includes the current uses of sukuk (Islamic bonds), the models of takaful (Islamic insurance) and accepted risk transfer mechanisms in Islamic structured finance (Islamic derivatives). The second purpose is to investigate the basic laws of banking and financial activities in Saudi Arabia and examine whether they are compatible with Shariah principles. The final aim is to suggest solutions to the absence of regulatory and supervisory systems of Islamic finance in Saudi Arabia by proposing a legislative and regulatory framework for Islamic banking and finance in Saudi Arabia. The research findings show that there are no specific laws and regulations governing Islamic banking and financial activities in Saudi Arabia. In addition, there is no independent central Shariah board to regulate and supervise Islamic banking and financial activities in Saudi Arabia, nor are there are any specialised commercial courts to look into banking issues. The research finds that there are some articles in the law of supervision of cooperative insurance companies in Saudi Arabia, and its implementing regulations, which do not comply with Shariah, and in addition, there is some incompatibility between the law and its implementing regulations. The final finding is that the issuance of sukuk and Islamic financial derivatives in Saudi Arabia are not consistent with Shariah requirements, due to the absence of regulatory policies and supervisory harmonisation, while Islamic insurance needs to amend some articles of the law of supervision of cooperative insurance companies in Saudi Arabia, and its implementing regulations, in order to comply with Shariah and also to avoid incompatibility between them.

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Suleman, Yasser. "The legislative challenges of Islamic banks in South Africa". Thesis, Stellenbosch : Stellenbosch University, 2011. http://hdl.handle.net/10019.1/21644.

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Thesis (MBA)--Stellenbosch University, 2011.
The Islamic Banking industry has been one of the fastest growing industries worldwide with a compound annual growth rate of 28% between 2006 and 2009(Reuters, 2010). These growth rates were experienced amidst the worst economic meltdown the world has seen in decades. This is a clear indication that there is a high level of confidence in the industry. Although the industry has existed for centuries, the past few decades have brought about a revival in Islamic banking. Many Western countries are recognising the industry’s importance and have taken various steps in supporting the establishment of it. South Africa has also taken such steps and has a vision of becoming a hub for Islamic banking on the African continent. This mini thesis examines the differences in nature of the underlying principles of Islamic and conventional banking which then brings to the fore the various challenges that exist in the unhindered functioning of Islamic banks within Western countries. These challenges revolve around institutional and legal frameworks, regulatory and supervisory bodies, South African Reserve Bank requirements, interest, taxation and conceptual understandings. In order to provide recommendations to address these challenges, case studies of Islamic banking in both, Islamic and Western countries were conducted. These case studies provided insight into how countries have addressed similar challenges and to what degree were they successful. This provided the basis from which recommendations were made for Islamic banking to function efficiently and effectively in South Africa and for the country to achieve its goal of becoming a hub of Islamic banking on the African continent.

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El, Sharif Bahgat Bahgat Khalil. "Law and practice of profit-sharing in Islamic banking with particular reference to mudarabah and murabahah". Thesis, University of Exeter, 1990. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.280677.

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Fleifel, Bilal A. "Risk management in Islamic banking and finance the Arab Finance House example /". View electronic thesis (PDF), 2009. http://dl.uncw.edu/etd/2009-3/fleifelb/bilalfleifel.pdf.

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Al-Khadash, Husam Aldeen Mustafa. "The accounting measurement and disclosure requirements in Islamic banks : the case murabahah and mudarabah /". View thesis View thesis, 2001. http://library.uws.edu.au/adt-NUWS/public/adt-NUWS20030416.150843/index.html.

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Thesis (Ph.D.) -- University of Western Sydney, Macarthur, 2001.
A thesis presented to the University of Western Sydney, Macarthur, in partial fulfilment of the requirements for the award of the degree of Doctor of Philosophy, March, 2001. Bibliography : leaves 244-264.

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12

Al-Khadash, Husam Aldeen Mustafa, University of Western Sydney, College of Law and Business i School of Accounting. "The accounting measurement and disclosure requirements in Islamic banks : the case of Murabahah and Mudarabah". THESIS_CLAB_ACC_AlKhadash_H.xml, 2001. http://handle.uws.edu.au:8081/1959.7/827.

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This research has three main purposes. First, it discusses the differences between the conventional and the Islamic perspectives of accounting in terms of the accounting definition, objectives, principles, rules, measurements and disclosure requirements. Second, it discusses and formulates the accounting measurements and the disclosure requirements, which should be applied in Islamic banks for Murabahah and Mudarabah operations.Third, to provide insight into the current practice of these measures and requirements, the study reports the results of a survey which aims at identifying the gap between the suggested measures and requirements and the current practice of the Dubai Islamic Bank and the Jordan Islamic Bank. The analysis reveals that there are differences between the conventional and the Islamic perspectives of accounting. It also indicates the need for specific accounting measures for Murabahah and Mudarabah operations as well as the need to disclose more information about these operations and their accounting measurement methods in an Islamic bank's annual reports as well as in other disclosures.Finally, the direction for future research on Islamic banks operations and their accounting measurement problems are presented
Doctor of Philosophy (PhD)

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13

Borhan, Joni Tamkin. "The doctrine and application of partnership in Islamic commercial law, with special reference to Malaysian experiments in Islamic banking and finance". Thesis, University of Edinburgh, 1997. http://hdl.handle.net/1842/21635.

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This thesis is a study of the doctrine of partnership (mudarabah and musharakah) in Islamic commercial law and its application in Malaysian experiments in Islamic banking and finance. The aim of this thesis is to analyse the operations of the three main Islamic financial institutions in Malaysia, namely Bank Islam Malaysia Berhad (BIMB), Syarikat Takaful Malaysia Sendirian Berhad (Takaful Insurance Company Malaysia Limited) and Lembaga Urusan Dan Tabung Haji (The Malaysian Pilgrims Management and Fund Board) which claim to operate on the principles of Islamic commercial law. The thesis falls into two parts: Part One focuses on the doctrine of partnership in Islamic commercial law, while Part Two consists of the application of the doctrine of partnership in the Malaysian experiments in Islamic banking and finance. After a general introduction, Part One divides into two chapters. Chapter One discusses the doctrine of sharikah (partnership) as a mode of financing in Islamic Commercial Law. Chapter Two deals with the doctrine of mudarabah as a mode of financing in Islamic commercial law. Part Two consists of three chapters (Chapters Three, Four and Five). Chapter Three examines and evaluates the operations and performance of the BIMB which operates on principles of Islamic Commercial Law such as mudarabah and musharakah. Chapter Four examines the operations of Syarikat Takaful Malaysia Sendirian Berhad which operates Family and General Takaful Schemes based on the principles of mudarabah and takaful. Chapter Five attempts to analyse the management and operations of Tabung Haji which was established in order to mobilize the voluntary savings of the Malaysian Muslims in accordance with the principles of mudarabah and ijarah. The study ends with a conclusion and some suggestions and proposals to remedy the weaknesses in interest-free banking and finance in Malaysia, followed by a Selected Bibliography.

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Al-Khadash, Husam Aldeen Mustafa. "The accounting measurement and disclosure requirements in Islamic banks : the case of Murabahah and Mudarabah". Thesis, View thesis View thesis, 2001. http://handle.uws.edu.au:8081/1959.7/827.

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This research has three main purposes. First, it discusses the differences between the conventional and the Islamic perspectives of accounting in terms of the accounting definition, objectives, principles, rules, measurements and disclosure requirements. Second, it discusses and formulates the accounting measurements and the disclosure requirements, which should be applied in Islamic banks for Murabahah and Mudarabah operations.Third, to provide insight into the current practice of these measures and requirements, the study reports the results of a survey which aims at identifying the gap between the suggested measures and requirements and the current practice of the Dubai Islamic Bank and the Jordan Islamic Bank. The analysis reveals that there are differences between the conventional and the Islamic perspectives of accounting. It also indicates the need for specific accounting measures for Murabahah and Mudarabah operations as well as the need to disclose more information about these operations and their accounting measurement methods in an Islamic bank's annual reports as well as in other disclosures.Finally, the direction for future research on Islamic banks operations and their accounting measurement problems are presented

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Mallat, Chibli Wajdi. "The renaissance of Islamic law : constitution, economics and banking in the works of Muhammad Baqer As-Sadr". Thesis, SOAS, University of London, 1990. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.285421.

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Mutungi, Muhairwe Simon. "The introduction of Islamic banking and its projected impact on financial inclusion and economic development in Uganda". Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/28083.

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Islamic banks were minimally affected by the global financial crisis of 2008. This is largely attributed to their firm and sound economic principles. This has made Islamic finance a feasible alternative system of banking especially in pursuit of financial inclusion. Uganda like most third world countries has grappled with the challenge of access to credit with a big unbanked population. One of the reasons espoused in this paper for this problem has been high cost of credit access caused by prohibitively high interest rates that discourage people from attaining loans for their entrepreneurial ventures. Since Islamic banking is an interest free based mode of finance, it could have the key to unlocking the door to an inclusive economy. However, there is a desire for dedicated research and efforts from the authorities to develop an effective legal and regulatory framework for Islamic financial industry in Uganda. Attempts should be made to modify the existing structure to provide better products and quality service within the ambit of Islamic laws. While interest based banking has taken hundreds of years to mature to the level where it is today, expecting the same maturity from Islamic banking in its nascent stage will be overly ambitious. To develop an economic system truly reflective of the sacred principles of Islam, all stakeholders should understand the limitations at this stage and work towards its advancement.

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Batchelor, Valli B. "A comparable cross-system bank productivity measure: Empirical evidence from the Malaysian dual banking system". Thesis, Edith Cowan University, Research Online, Perth, Western Australia, 2005. https://ro.ecu.edu.au/theses/5.

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This thesis seeks to fill a void in the banking performance literature by (1) proposing a cross-system bank productivity assessment methodology that can be applied to both conventional and Islamic banking and (2) implementing this methodology on a dual banking system to gauge the comparable productivity of Islamic and conventional banks relative to one another in a banking system that has experienced deregulation and consolidation. The growing significance of Islamic banking cannot be overlooked as its growth in recent years has significantly outpaced conventional banking. This new banking duality trend profoundly impacts the relative competitiveness of both banking systems and this in turn, may significantly affect the allocation of scarce financial resources between conventional and Islamic banking.

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Jusoh, Amir Fazlim. "Alternatives to bai' al-'inah with special reference to maslahah mursalah in the Malaysian banking and finance industries". Thesis, University of Aberdeen, 2016. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=229505.

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This thesis aims at investigating the validity of baiʿ al-ʿīnah, not only in classical terms but also in modern practice in the Malaysian banking industries. It also examines modes of Islamic personal financing, apart from baiʿ al-ʿīnah, which are currently practised, or may potentially be used in the future, and their validity, viability and marketability as Islamic financing tools. They include classical and organised tawarruq, rahn-based qarḍ, qarḍ and sale financing, takāful-based qarḍ and hibah-sale based financing. It also investigates the proper legal foundation for the alternatives, namely maṣlaḥah mursalah and its connection with ḥīlah and, whether or not the former could replace the latter as an Islamic legal foundation. Furthermore, it examines parameters for the alternatives to be Sharia compliant. Analysis is confined to the instrument of baiʿ al-ʿīnah in personal financing by using the primary and secondary sources of Sharia through legal analysis of uṣūl al-fiqh. It is concluded that the application of baiʿ al-ʿīnah in the Malaysian banking industries should not be solely referred to the ruling of the instrument in its classical form. Contemporary baiʿ al-ʿīnah is considered non-Sharia compliant if the instrument contains one of the prohibited elements such as the element of a sale for a sale, a sale for a qarḍ, a sale with invalid conditions, selling unavailable or unpossessed items, selling without the responsibility to guarantee and non-Sharia ḥīlah. Any alternative to baiʿ al-ʿīnah could be based on maṣlaḥah mursalah or ḥīlah sharʿīyah to comply with their requirements. The instruments of salam-based financing, classical and organised tawarruq, rahn-based qarḍ, takāful-based qarḍ and hibah for a reward financing have the qualities to replace baiʿ al-ʿīnah as Sharia compliant personal financing instruments.

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Bin, Ishak Muhammad Shahrul Ifwat. "The principle of Maʻalat as a response to Maṣlaḥah in Islamic banking : a theoretical and empirical study". Thesis, University of Aberdeen, 2017. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=237156.

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Ullah, Karim. "Adaptable service-system design : an analysis of Shariah finance in Pakistan". Thesis, Brunel University, 2014. http://bura.brunel.ac.uk/handle/2438/8281.

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An adaptable service system adjusts to the operational-level environments of organisations to enable heterogeneous services. This adaptation is important for sustainability and contextual-value (benefit) creation in a service system. Academics, such as those related to the current service-ecosystem concept, acknowledge the significance of this adaptation. However, little is known about a comprehensive adaptation process and how that integrates within a design for a service system. Also, practitioners are inclined towards this development, as the financial regulator in Pakistan has established an “evolutionary framework”. This framework encourages financial institutions to design Shariah finance services (SFS) which respond and evolve to the emergent market environments. The existing SFS models take benefit from Islamic jurisprudence and economics literatures to provide designs for transactions of financial and physical assets. However, the SFS models de-emphasis the intangible service-elements, where the adaptation is more likely to occur. Currently there is a great need for models that could explain the detailed adaptation process and its placement in an SFS design. The aim of this research is to develop, evaluate and theorise a model for conceptualising a holistic adaptable service-system design. The research aim is achieved through the proposal of a novel deferred service-system design (DSD) model. The DSD conceptualises a service-system design that adapts to the operational-level environments of SFS organisations in Pakistan. The DSD has seven constructs: (i) the service creators apply centrally-planned designs to create a service ii) they adapt these designs to meet the requirements of emergent contexts (iii) the service personnel, customers and aiding parties co-create a service by integrating their (iv) roles and actions, (v) resources and usufructs, (vi) rules and control to generate (vii) value. DSD is based on service-system design (SSD) literature, SFS literature and theory of deferred action (TODA)  a theory of system and organisation design. A multiple case study strategy is employed to evaluate, extend and theorise the DSD developed in phase I. Qualitative data are collected in four SFS organisations: Islamic commercial bank, Islamic life Takaful, Islamic mutual fund, and Islamic leasing organisation. Thirty-two in-depth narrative interviews of SFS personnel are conducted and analysed using a narrative discourse analysis method. The findings are triangulated by adding focus-group discussions, visualisations and service offering documents. The empirical findings are synthesised with the extant literature to develop a novel and comprehensive DSD in phase II. The findings show that the service co-creators apply a centrally-developed planned design typology (PDT). PDT includes different blends of SFS models (e.g., partnerships, sales, leases, agency and endowment), expected varieties (list, range and negative) and addable-deductible modules. The service co-creators and their inclusive systems (e.g., families, societies, markets, regulators and other government agencies) affect the planned service-system design to adapt or migrate. The service co-creators follow a novel six-step deferred adaptation process (DAP): emergence locale, information diffusion, knowledge diffusion, indexation, specifics evaluation and adaptation/migration. The empirical findings advance our understanding of a service-system design by showing how a planned design enables adaptation through PDT. More importantly, how the service co-creators follow a systematic process, DAP, to attain the desired adaptation or migrate off the scene. The findings also broaden the conceptualisation of SFS by showing how it is co-created by the financial institutions, customers and aiding parties. This is due to the SFS being perceived as a product of financial institution alone. This research also makes a contribution to service visualisation method by extending and using the service blueprint as an additional data-collection and analysis tool. This study provided fourteen implications for the practitioners.

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Khoshroo, Sajjad. "Islamic finance : the convergence of faith, capital, and power". Thesis, University of Oxford, 2018. http://ora.ox.ac.uk/objects/uuid:0ab321e8-0d54-40d6-a1ef-3a37a0a5ffe6.

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This dissertation assesses how Islamic finance fares as an example of 'civil compromise' in Islamic law. By focusing on the Islamic project finance sector, my research examines how the industry's main stakeholders (representing faith, capital, and power) cooperate and compete to bring about this compromise through the 'Game of Islamic Bank Bargains'. The Islamic finance industry is a work in progress, and while it has made some significant strides, it is still a niche in the global conventional financial order rather than an alternative to it. It has fallen short of fulfilling its originally-stated social justice aspirations, but has provided a previously unavailable form of banking and finance for Muslims to transact, at least formalistically, in accordance with widely-believed tenets of their faith. Thus, those who hold up Islamic finance as a universal panacea or dismiss it outright as a fraud have both got it wrong. It is neither. It is, rather, a complex myriad of incentives and aspirations of a multitude of stakeholders muddled together across numerous geographies and evolving incrementally and constantly. The state of the industry is the result of how the stakeholders (the shariah scholars, lawyers, bankers, government officials, and customers) have pursued their self-interest in the Game of Islamic Bank Bargains. My research examines who are the 'winners' and 'losers' of this game, and what religious, commercial, and political factors have influenced this outcome. I assess what may incentivise the incumbent 'winners' to guide the Islamic finance industry away from a formal and legalistic approach towards one that also incorporates principles from Islamic economics. I explore how the 'losers' - whose interests are not accounted for due to their lack of sufficient financial and political clout - can sway the outcome of the game in their favour.

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Thurner, Nicole. "Die Implementation des murābaḥa-Vertrages in deutsches Recht". Doctoral thesis, Universitätsbibliothek Chemnitz, 2016. http://nbn-resolving.de/urn:nbn:de:bsz:ch1-qucosa-129331.

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Die Arbeit untersucht in Form einer prospektiven Implementierungsstudie juristische und ökonomische Voraussetzungen und Folgen eines Angebots von murābaḥa-basierten Verträgen in Deutschland. Dabei werden einzelne Herausforderungen dargestellt und Lösungsansätze erarbeitet
This thesis examines legal and economic requirements and consequences for offering murābaḥa-based contracts in Germany in the form of a prospective implementation study. Different challenges and solution approaches are presented

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Khan, Omar Mahomed. "An investigation into the establishment of an Islamic banking enterprise in the Tshwane and surrounding areas / Omar Mahomed Khan". Thesis, North-West University, 2013. http://hdl.handle.net/10394/10167.

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Muslims in South Africa live within the framework of a Western economy in which the notion of interest plays a pivotal role. This system does not seem to comply with the strict interpretation of Islamic law, since the Quran prohibits any dealings on the basis of interest and strongly condemns those who continue to deal in interest-based transactions, warning them of a “notice of war from Allah and His Apostle”. Muslims are therefore faced with the dilemma of either participating in the current prevailing economic system and thereby violating the Quranic injunctions prohibiting interest or Riba, or completely withdrawing from participation in this system and conducting their business transactions in accordance with Islamic injunctions. This study is an attempt to examine whether an Islamic banking enterprise within the greater Tshwane area could survive and even flourish in the long term if it were operating within the parameters of Islamic law, thus in the absence of the interest factor. The research methodology employed was that of qualitative research, and the study consists of both a literature and an empirical study. It became evident from the literature review that a bank’s survival within the Western economic order depends on the confidence that its depositors have in it. In an Islamic economic system the ethical and legal components distinguish it from other systems. The most striking feature of the Islamic banking environment is the so-called profit and loss sharing system (PLS). The literature study was complemented by an empirical study. Respondents were interviewed in three categories: Muslim businessmen, Islamic bankers and Islamic religious leaders. An analysis of data from the respondents revealed that they were of the opinion that there was a need for an Islamic bank in order to avoid any interest-based dealings and to operate strictly in accordance with Islamic law and principles. Based on the literature and field study a simple model of an Islamic banking enterprise was constructed which could function within the greater Tshwane area and within the South African economic context, but which would be based on Islamic Shariah principles. In constructing this model due cognisance was taken of the fact that it would prove to be a very difficult task to amend existing banking laws to provide for the easy entry and functioning of an Islamic bank. Based on the literature and empirical study it was concluded that to provide for the easy entry and functioning of an Islamic banking enterprise, it should not be structured or named as a bank but rather as a finance company which would then be able to offer most of the services that are offered by traditional banks but without having to comply with the strict regulations as applicable to traditional banks. The dissertation’s final conclusion and recommendation was thus that an Islamic bank should operate not as a bank but as a finance company, thereby accomplishing its pivotal role to enable Muslims to use these indispensable services successfully while complying wholly with Islamic Shariah law.
PhD (Business Management), North-West University, Vaal Triangle Campus, 2013

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Madkhali, Aasem. "Le rôle de la supervision des banques islamistes, approche islamo-juridique". Thesis, Nice, 2016. http://www.theses.fr/2016NICE0010/document.

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Cette étude couvre les institutions financières islamiques en général, avec une attention particulière accordée aux banques islamiques. L’intérêt est suscité par la relation directe avec notre sujet traitant de la surveillance de conformité avec la charia, réglementaire et légale, des banques islamiques. Les institutions financières et banques islamiques proposent divers produits de financement et développent plusieurs produits classiques en les adaptant aux principes de la finance islamique, dont l’absence de l’usure (interdiction du riba). Par ailleurs, nous notons que d’une part, certaines institutions financières et banques islamiques commencent à détourner à leur avantage les principes et les règles de base qui ont justifié l’existence même de la finance islamique en tant que substitut à la banque classique, et que d’autre part, même quand lesdites institutions se dotent d’instance de surveillance, leurs prérogatives se limitent à conseiller sans intervention pour réparer les défaillances et sans que leurs décisions et recommandations n’aient de force obligatoire. Ces constats nous amènent plus loin dans notre analyse, et nous poussent à nous interroger sur le fait d’assumer les implications de la responsabilité civile sous ses deux formes ; contractuelle et délictuelle ainsi que les implications de la responsabilité pénale pour les membres de ces instances. Le rôle de ces organes peut être plus effectif et plus efficace, comme nous le montrerons grâce à une approche réglementaire légale des activités et travaux des instances de surveillance de la charia. De ce fait, le sujet de la thèse implique une comparaison et un parallélisme entre les activités bancaires islamiques et la surveillance réglementaire du point de vue de la loi islamique charaique et la surveillance réglementaire des activités bancaires islamiques d’un point de vue légal
The present study covers the issue of islamic financial institutions in overall, with a particular attention attributed for islamic banks. The topic is interesting because of the direct relationship with the compliance monitoring with the Shariaa, regulatory and legal of Islamic banks. These financial institutions and Islamic banks offer various products of financing and develop several conventional products adapting them to the principles of Islamic finance, including the absence of usury (interdiction of riba). We should mention that some financial institutions and Islamic banks begin to divert for their advantages the principles and the basic rules that justified the existence of Islamic finance, like substitute for the traditional bank. And the role of institutions of compliance monitoring is limited to provide advises without intervention to prepare the failures, in other terms their decisions and recommendations did not have the binding force. These findings allowed deepening our analysis to pose the question regarding assuming the consequences of the civil liabilities under the 2 forms: contractual and delictual, in addition to the consequences and the criminal liabilities for the members of these authorities of compliance monitoring. The role of these organs could be more effective and efficient, like we underlined with the regulatory approach of their activities and the works of these authorities of compliance with the Shariaa. The present dissertation provides a comparison between the Islamic banks activities and the regulatory monitoring from the perspective of the Islamic rules of Shariaa and the regulatory monitoring of the activities of Islamic banks form legal perspective

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Moaté, Michaël. "La création d'un droit bancaire islamique". Thesis, La Rochelle, 2011. http://www.theses.fr/2011LAROD027/document.

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Ce travail de thèse sur « la création d’un droit bancaire islamique » offre une perspective globale du phénomène. Faisant appel à l’histoire, à l‘économie et au droit, il envisage l’étude de ces techniques bancaires dans le contexte socio-culturel présidant à leur émergence et notamment sous l’angle des rapports entre le monde occidental et l’Orient islamique.Tout d’abord, s’appuyant sur l’étude du droit musulman classique, ce travail analyse le substrat qui a permis le développement de la banque islamique à travers d’une part l’étude des concepts bancaires majeurs et d’autre part l’évolution du monde musulman au cours de l’histoire. Puis, l’analyse se tourne vers la légitimation des techniques bancaires islamiques modernes au regard des contrats musulmans classiques. Ceci amène cette étude vers la variété des modèles de banques islamiques dont elle propose de mettre en lumière les divergences au regard des questions religieuses, politiques et économiques, mais aussi de montrer que la perspective actuelle tend vers leur uniformisation. La dernière partie de l’étude s’attache à exposer les rapports entre ce droit bancaire islamique et le droit positif des pays dans lesquels il s’incorpore. Ainsi, en Occident, l’analyse distingue la France et les pays de Common law dont l’histoire montre l’influence sur les systèmes juridiques des pays musulmans. En Orient, le Maroc et l’Arabie Saoudite, deux pays dont les systèmes bancaires sont respectivement issus des droits civilistes et de Common law, font l’objet d’une étude spécifique. Les développements s’achèvent enfin par la confrontation des normes et des valeurs que soulève l’introduction de techniques bancaires islamiques dans le système financier international. L’ensemble des analyses proposées dans cette étude accrédite la thèse de la difficulté que rencontrent ces techniques bancaires à trouver leur cohérence entre la volonté de s’inscrire dans la tradition religieuse de l’Islam et la recherche de l’efficacité économique
This thesis on "the creation of an Islamic banking law" provides a global perspective of this phenomenon. Looking upon history, economics and law, this essay plans to study these Islamic banking techniques in the socio-cultural context governing at their emergence particularly in terms of relations between the Occident and the Islamic Orient.First, based on the study of classical Islamic law, this work analyses the substratum that has allowed the development of Islamic banking by, on the one hand, the study of the major banking concepts and on the other hand, the evolution of the Muslim world as centuries go by. Then, the analysis turns to the legitimization of modern Islamic banking techniques by comparison with classical Islamic contracts. This leads this study to the various models of Islamic banks, in order to highlight the differences with regard to religious, political and economic issues, but also to show that today's perspective move towards their uniformity. The last part of the study seeks to explain the relationship between Islamic banking law and positive law in the countries where it is incorporated. Furthermore, in Occident, the analysis distinguishes France and the Common law countries whose history shows the influence on the legal systems of Muslim countries. In the Muslim world, Morocco and Saudi Arabia, two countries whose banking systems are respectively stemming from Civilian law and Common law, are subject to a specific study. The developments come to an end by the confrontation of norms and values raised by the introduction of Islamic banking techniques in the international financial system.All the analysis proposed in this study supports the theory of the difficulty faced by these banking techniques to find consistency between the desire to be part of the religious tradition of Islam and the pursuit of economic efficiency

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Bessedik, Abdelkader. "Les opérations de financement et d'investissement dans le droit musulman". Phd thesis, Université Paris-Est, 2013. http://tel.archives-ouvertes.fr/tel-00986353.

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L'activité bancaire est le moteur de l'économie. Dans les systèmes juridiques de type occidentaux, les banques utilisent le droit des contrats pour proposer leurs services, que ce soit la banque commerciale ou la banque d'affaires. De même, les banques redoublent d'imagination pour augmenter leurs marges et la rentabilité des placements qu'elles font à partir des fonds qui sont déposés par les épargnants. Enfin, les banques participent au financement de grands projets et permettent ainsi leur réalisation, généralement avec une intervention des autorités publiques. Toutes les activités bancaires font l'objet d'une réglementation stricte et d'ordre public pour garantir la solvabilité des banques et protéger le crédit. La finance islamique s'inscrit dans ce schéma juridique, cependant elle doit intégrer des nombreuses contraintes engendrées par l'application et le respect de la Chari'a. En effet, il semble qu'à première vue l'interdiction de l'intérêt, riba, et de l'aléa, gharar, constituent des obstacles insurmontables pour pouvoir exercer le métier de banquier. En réalité, la finance islamique peut parfaitement se développer, à des conditions et dans un cadre qu'il faut expliquer.

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Thurner, Nicole. "Die Implementation des murābaḥa-Vertrages in deutsches Recht: Herausforderungen und Lösungsansätze". Doctoral thesis, Universitätsverlag der Technischen Universität Chemnitz, 2013. https://monarch.qucosa.de/id/qucosa%3A19971.

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Die Arbeit untersucht in Form einer prospektiven Implementierungsstudie juristische und ökonomische Voraussetzungen und Folgen eines Angebots von murābaḥa-basierten Verträgen in Deutschland. Dabei werden einzelne Herausforderungen dargestellt und Lösungsansätze erarbeitet.
This thesis examines legal and economic requirements and consequences for offering murābaḥa-based contracts in Germany in the form of a prospective implementation study. Different challenges and solution approaches are presented.

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Eskici, Mustafa Mürsel Kalaycı Şeref. "Türkiye'de katılım bankacılığı uygulaması ve Katılım Bankaları'nın müşteri özellikleri /". Isparta : Süleyman Demirel Üniversitesi Sosyal Bilimler Enstitüsü, 2007. http://tez.sdu.edu.tr/Tezler/TS00596.pdf.

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Ben, Amira Mustapha. "The concept of interest in the Western and Middle Eastern society". CSUSB ScholarWorks, 2003. https://scholarworks.lib.csusb.edu/etd-project/2351.

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The entire banking systems in the western societies is based on the use of interest. The bank charges the borowers interest on its loans and pays its depositors interest on their deposits. On the other hand, the Middle Eastern banking system is an interest free system that prohibits the use of interest, either in receipt or in payment.

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Moukarzel, Mireille. "Vers un élargissement des méthodes alternatives du règlement des différends dans le système financier Islamique". Thesis, Université Paris-Saclay (ComUE), 2019. http://www.theses.fr/2019SACLS295.

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La thèse étudie les méthodes alternatives, approfondies par les études que j’ai menées sous ladirection de mon directeur, M. Sélim el Sayegh, sur le rôle des chambres de commerce etl’importance qu’elles octroient à l’arbitrage d’un côté et la médiation de l’autre côté. Elletraitera des finances islamiques et le système bancaire islamiques dès leur départ et jusqu’à nosjours. Elle soulignera les chocs, conflits et obstacles auxquels les institutions islamiques ontété confrontées. Elle considère de même les facteurs qui retardent le développement du lienexistant entre les institutions financières islamiques et les banques d’une part, et le systèmefinancier conventionnel d’une autre part, depuis le moment où l’interaction pratique fut initiéedans ces deux secteurs
The thesis studies alternative methods that were deepened by the studies I conducted underthe supervision of my director, Mr. Sélim el Sayegh. It studies the role of chambers ofcommerce and the importance they give to the arbitration and mediation. It also studiesIslamic finance and the Islamic banking system from their inception until today. It willhighlight the shocks, conflicts and obstacles that Islamic institutions have faced. It alsoconsiders the factors that delay the development of the link between Islamic financialinstitutions and banks, and the conventional financial system as well, since the practicalinteraction was initiated in these two sectors

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Gheeraert, Laurent. "Financial systems: essays on the cultural determinants and the relevance for economic development". Doctoral thesis, Universite Libre de Bruxelles, 2009. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/210212.

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The thesis analyzes macro-economic determinants and roles of financial sector development.

The literature argues that the size and efficiency of both banking systems and financial markets - the two major components of a financial system - matter for economic development. In the same vein, the quality of financial institutions and regulations are instrumental in the construction of a strong financial system.

We study several aspects of financial sector development in relation to three recent phenomena, namely, the rise of Islamic banking and finance, the increasing interest for emerging stock markets, and the growing remittance flows.

This thesis is made up of three essays.

The first essay extends the literature on the determinants of financial sector development, from the angle of culture. We show that, on average, Islamic finance favors the development of the banking sector in Muslim countries. We provide evidence that several countries have indeed been successful in launching a new, Shariah-compliant, banking system, while not harming the existing, conventional, banking sector. Our empirical analysis uses a newly-constructed original database on the size and performance of Islamic deposit banks globally over the period 2000 to 2005.

The second essay focuses on stock markets, in particular, the less-studied emerging equity markets. We confirm traditional literature findings on unconditional stock returns, over a panel of 53 Major and Frontier markets. Mainly, volatility is high, big surprises happen, and return correlations with the rest of the world are low but have been rising over the last decades. In spite of large differences in market size and liquidity, Frontier market returns are qualitatively similar to Major markets', except correlations, which are lower in Frontier markets. At current correlation levels, the latter continue to bring substantial diversification benefits to international investors.

The last essay examines the relationship between remittances and economic growth. It confirms that remittances are important for developing countries as they stimulate domestic investment. It then demonstrates, theoretically and empirically, that improving the access to bank deposit accounts is crucial to channel remittances to more productive uses. This is even more true when the access to international borrowing is costly.

The 2008-2009 financial crisis has propelled the improvement of financial systems to the top of policymakers' agendas. Our work contributes to a better understanding of the importance of finance in economic outcomes. It also brings a novel perspective on the determinants of financial systems./

Notre thèse a pour objet l'étude des déterminants et des rôles macro-économiques des secteurs financiers dans le monde.

Selon la littérature scientifique, la taille et l'efficacité des systèmes bancaires et des marchés financiers - les deux composantes principales d'un système financier - sont importantes pour le développement économique. Il apparaît également que la qualité des institutions et des régulations financières contribuent à la création d'un système financier fort.

Au travers de trois essais, nous examinons plusieurs aspects du développement du secteur financier, qui sont en relation avec trois phénomènes récents; à savoir: la croissance de la finance islamique, l'intérêt grandissant pour les marchés boursiers émergents, et l'augmentation des flux de transferts de fonds des migrants.

Dans le premier essai, nous nous intéressons aux facteurs culturels comme déterminants des secteurs financiers et, en particulier, au rôle de la religion musulmane. Nous montrons que, en moyenne, la finance islamique favorise le développement du secteur bancaire dans les pays musulmans. Plusieurs pays ont en effet réussi à développer un nouveau secteur bancaire compatible avec la Shariah, sans porter ombrage au secteur bancaire non islamique avec lequel il co-existe. Notre analyse empirique est fondée sur une base de données nouvelle et originale. Celle-ci a pour intérêt de fournir des indicateurs de taille et de performance des banques islamiques de dépôt dans le monde, pour la période 2000-2005.

Dans le deuxième essai, nous explorons les rendements inconditionnels obtenus sur les marchés boursiers, en particulier les marchés émergents d'actions. Notre analyse d'un large panel de 53 marchés émergents "Majeurs" et "Frontières" confirme les résultats traditionnellement observés dans la littérature. Ainsi, pour l'essentiel, les deux types de marchés sont volatils et émaillés d'événements extrêmes. De plus, les rendements des marchés émergents sont faiblements corrélés avec ceux du reste du monde, même si ces corrélations ont augmenté au cours des derniers décennies. Malgré d'importantes différences en terme de taille et de liquidité, les rendements sur marchés "Frontières" sont qualitativement similaires à ceux des marchés "Majeurs", à l'exception des corrélations. Ces dernières sont en effet actuellement plus faibles dans les marchés "Frontières", qui continuent dès lors à offrir d'importants bénéfices de diversification aux investisseurs internationaux.

Dans le dernier essai, nous examinons la relation entre les transferts d'argent des migrants et la croissance économique. Nous confirmons l'idée que les transferts de fonds des migrants sont importants pour les pays en voie de développement. Mais surtout, nous démontrons, de manière théorique et empirique, qu'il est crucial de faciliter dans ces pays l'accès aux comptes de dépôt bancaires, afin de transformer une plus grande part des transferts des migrants en investissements productifs. Ceci est d'autant plus vrai quand l'accès aux autres sources de capitaux internationaux est coûteux.

En conclusion, la crise financière de 2008-2009 a fait de l'amélioration des systèmes financiers la priorité de nombreuses politiques économiques. Dans cette perspective, notre travail apporte une contribution à une compréhension plus fine de l'importance de la finance pour l'économie, ainsi qu'une vision novatrice des déterminants des systèmes financiers.
Doctorat en Sciences économiques et de gestion
info:eu-repo/semantics/nonPublished

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Kholvadia, Faatima. "Islamic banking in South Africa - form over substance". Thesis, 2016. http://hdl.handle.net/10539/22219.

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A research report submitted In partial fulfilment of the requirements for the degree of Master of Commerce University of the Witwatersrand
The purpose of this study is to analyse the operational economics of Islamic banking transactions in South Africa and to understand how the economics of these transactions lead to the IFRS accounting. The study also aims to highlight the similarities and differences of accounting for these transactions using IFRS, across the different South African banks. The transactions analysed are deposit products of qard and mudaraba and financing products of murabaha, ijarah and diminishing musharaka. The study was conducted through interviews with representatives from each of the four South African banks which offer Islamic banking products. Interviews were semi-structured and allowed for interviewees to voice their perspectives increasing the validity of the interviews. The study found that the specific Shariah requirements of Islamic banking transactions are considered and included in the structure of the contracts by all four banks offering Islamic banking products. However, the economic reality of these transactions closely resembles conventional banking transactions. The study also found that all four banks account for Islamic banking transactions using IFRS but the accounting does not match the Shariah requirements of each transaction, creating a cognitive dissonance between the accounting and the contractual form of the transactions. This study is the first of its kind in South Africa. The study adds to the IASB Consultative Group discussion on accounting for Islamic banking transactions under IFRS. Key words: Conceptual Framework, diminishing musharaka, IFRS, ijarah, Islamic banking, mudaraba, murabaha, qard
MT2017

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Abdel-Razzaq, Assim. "The determinants of Islamic banking profitability". Thesis, 2018. http://hdl.handle.net/1959.7/uws:46188.

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Given the sluggish growth and decreasing profitability of IBFI, and due to its importance within the international and national banking industry, the research aims at identifying the determinants of IBs profitability and examines their effects on IBs’ overall performance. IBFI which was emerged initially to find an alternative of the conventional form of financing currently exists in Muslim and non-Muslim countries with the total global financial asset in excess of $3 trillion at the end of 2017. However, while IBs dominate the IBFI with its 80 % share of the total assets, they still represent less than 1 % of global banking assets. Therefore, the performance of IBFI has become a hot topic for practitioners, researchers, policymakers, and international financial regulatory organisations. In this perceptive, the topic of the thesis is timely and relevant especially with the high and continuous volatility of banking operating environment due to the impact of deregulation, advances in information system and technologies, financial openness, and the subsequent financial crisis. Also, the thesis attempted to fill the gap in the Islamic financial literature that were mainly focusing on theoretical issues of IBFI and ignoring the profitability drivers and their effect on the industry. Even though, the few empirical studies noted in the Islamic financial literature found to be lacking for a robust methodological framework with their finding are mix and inconclusive. In order to identify the determinants of IBs profitability and examines their effects on IBs’ overall performance, the study firstly reviewed the existing financial performance literature for both Islamic and conventional models with a reference of the relevant financial theories. The study then set up a methodological framework with a large panel data of 25 years from 23 IB’s operating countries spanning over six regional political groups with different Shariah jurisdiction covering the period from 1996 to 2015. The final dataset is tested using various econometric models and robustness checks. The findings of the study revealed an influential role of all included profitability determinants on IBs’ overall performance. Therefore, the findings are significant for the practitioners, policymakers, and international financial regulatory organisations in term of providing an improved understanding of the IBs’ performance to formulate and update their financial policies to let the industry reach its full potential in their respective countries. It is also important for the researchers who are interested in taking the Islamic banking and financial literature further.

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Ahmad, Abu Umar Faruq, University of Western Sydney, College of Business i School of Law. "Law and practice of modern Islamic finance in Australia". 2007. http://handle.uws.edu.au:8081/1959.7/38404.

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The dissertation seeks to contribute to the existing body of work in the area of Islamic finance by examining the extent of divergence in practice of Islamic financing from the traditional Shari`ah in the Australian context. To this end, the dissertation presents a discursive analysis of the regulation of Islamic Finance in Australia in terms of (a) the financing instruments used, (b) certainty of transactions between participants in the system, and (c) institutional risk management of Islamic Financial Institutions (IFIs). The methodology chosen for the study is through the Shari`ah, where law, finance, economics and business form a single dimension only, even though a very significant one. Examination of the issues of this study is undertaken through the literature in the relevant field as well as the author’s personal expertise and working experience with several Islamic banks (IBs) and IFIs for a considerable period of time, in addition to his active involvement with at least two of Islamic Financial Services Providers (IFSPs) in Australia.
Doctor of Philosophy (PhD)

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Ahmad, Faisalal Yudi. "Fatwa shopping as modernising Islamic finance law". Thesis, 2019. http://hdl.handle.net/1959.7/uws:53012.

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The thesis examines the evolving role of Islamic financial instruments in the modernisation of Islamic financial practices. Crucial to this process of modernisation is the proper appreciation of the impact and importance of selective Sharia opinions termed fatwa shopping in this thesis. Fatwa shopping involves selecting, reviewing, and combining Islamic juristic rulings in the form of fatwas (the plural of fatwa in English and it is also referred to as fatawa in Arabic). Using this approach, medieval Islamic rules and contracts are utilised on a functional basis and as a means of developing modern functional equivalents. The thesis argues that fatwa shopping continues the classical tradition of doctrinal selections (talfiq) made by Muslim jurists to find an interpretation that best fits the circumstances. The application of this approach finds expression in the views of Muslim scholars and Islamic Financial Institutions (IFIs) and their Sharia Supervisory Boards (SSBs) reviewing and selecting various Islamic juristic rulings from different schools of Islamic jurisprudence to certify modern Islamic financial products and services. This approach recognises that medieval Islamic commercial contracts have significant problems in terms of feasibility and practicality in modern banking transactions. The thesis takes a middle path between legitimacy and practicality by allowing the development of Islamic financial instruments that obey Islamic juristic rulings but also take into account economic and financial considerations. Since financial institutions including IFIs are crucial to economic development and invariably involve risks to the economy, institutions, and consumers, regulation plays an important role in ensuring financial stability and risk management. Thus, it is important to contextualise the position of Islamic finance within the global financial system. Islamic financial institutions cannot be separated from the general regulatory framework and the management of risk. A key justification for the regulation of banking and financial institutions is to mitigate and prevent risks that may jeopardise the industry and the whole economy. This is reflected in both the public interest and economic theories of regulation. The government has a central role in risk regulation to protect the public from adverse consequences of banking and financial transactions through regulations that are primarily concerned with specifics risk in the financial industry. In the case of IFIs, it is not only government that has a central role in the development of financial products and the regulation of risks in Islamic finance. SSBs, as non-governmental bodies, provides substantive determinations as to whether a particular financial activity or instrument is Sharia compliant. Unlike conventional products, the character of Islamic financial products relies on Sharia compliance. One of the main challenges for Sharia compliance is whether fatwas can accommodate modern risk management instruments. Risk management instruments are pivotal to managing and hedging risks. These include various forms of derivatives as well as insurance and limited liability corporations. As modern derivatives and insurance are considered essential to deliver benefits to the financial industry and the economy as a whole, modern Islamic finance should be able to adapt to this economic and risk management environment. Despite disagreements Muslims scholars on whether modern instruments comply with Islamic law, the method of selective Sharia rules or fatwa shopping provides a mechanism for deriving modern fatwas on which to base Sharia compliant equivalents on derivatives, insurance, and limited liability corporations. In order to assess how IFIs actually operate in a financial system, the thesis examines Islamic finance in two jurisdictions: Indonesia and Australia. These two jurisdictions are selected as providing a comparison of a system that makes little or no accommodation for a very small Islamic finance industry (Australia) and Indonesia where fatwas are recognised in the local banking system; the validity of Islamic financial instruments depends not only on satisfying conventional regulatory requirements but also on SSBs certification of Sharia compliance. The legitimacy of local Islamic financial products and services operates through a non-state agency, Sharia Advisory Boards – Indonesian Ulama Council. They set their own juristic rules. The fatwas produced by that body play an important role in harmonizing Sharia opinions in the Indonesian financial system. Local banking acts direct Indonesian regulators to adopt fatwas as a national benchmark. In addition, fatwas of that governing body allow the adoption of various juristic rules from different Islamic schools in defining local fatwas on Islamic finance. In contrast, in Australia there is decentralised Sharia regulation so that local IFIs develop their own Sharia justifications for products and services offered to the markets. Local regulators have no concerns on Sharia compliance aspects of those local IFIs. The thesis concludes that that selective Sharia rules or fatwa shopping has contributed to the modern development of Islamic finance. The method has been successful in harmonizing legitimacy and practicality of Islamic financial transactions with the needs of a modern financial system.

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Setiawan, Romi A. "Risk and regulation of Islamic banks : the Indonesian experience". Thesis, 2022. http://hdl.handle.net/1959.7/uws:67724.

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This thesis focuses on Islamic banking in Indonesia. It considers the related challenges of sharia compliance by Islamic banks and their regulation and supervision in Indonesia’s dual banking system. Crucial to the prudent regulation and supervision of banking is the control and monitoring of risks that could jeopardise a nation’s financial stability. Since compliance with sharia principles is the raison d’etre of Islamic banks, all their instruments and activities must be based on Islamic law. Unfortunately, sharia compliance gives rise to unique risks for Islamic banks not faced by conventional banks in Indonesia’s dual banking system. These include inconsistencies between fatwas, unique reputational risks which can cascade into liquid risks, and inefficiencies in the manifold regulatory framework governing Islamic banks. This thesis analyses the tension between classical Islamic principles required of bank contracts and the modern needs of businesses and the community. It also critically examines the less studied issue of developing an Islamic banking regulatory and supervisory framework that considers the risk pressures faced by Islamic banks operating in a financial sector dominated by conventional banking. This thesis argues that a middle way is possible for contemporary Islamic banks, which encourages prudent risk management whilst adhering to the evolving pluralistic form of Islamic law in Indonesia. The thesis critically assesses the extent to which global financial standards of the Basel Accords have been followed by Islamic banks in Indonesia with respect to their regulation, supervision, and risk management, in order to highlight the unresolved tensions in the multiple regulatory and supervisory institutions, viz. the state’s Financial Service Authority and the private agency of Sharia Supervisory Boards operating under the auspices of the National Sharia Board of the Majelis Ulama Indonesia. In this regard, one of the major challenges for Islamic banks is the potentially difficult institutional and Islamic legal reforms required to fully apply the international standards set down in the Basel Accords. Again, this thesis proposes a middle ground approach that accommodates modification of the existing financial regulatory and supervisory system in line with international best practice to provide more comprehensive guidelines for prudential regulation transparency.

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Wali-Uddin, Abdullah Mahdi. "The effects of contract modifications on Shari'ah compliant products in the United States". Thesis, 2019. http://hdl.handle.net/10500/25699.

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Islamic banking in the United States of America, became recognized as an alternative to expand into the market of traditional Muslim consumers, living in the United States. Because of strict regulatory guidelines, no Islamic banks exist in the United States. Instead, conventional banks, Islāmic banking windows (IBW) and other financial institutions offer Shari‘ah compliant products by modifying classical Islamic contracts or attaching a rider to define contract verbiage. This study reviewed techniques of adapting contracts used for Shari‘ah compliant products in the United States to determine if the contracts maintain the true characteristics of the original classical Islamic contracts. Contracts in Islamic sacred law provide protections by ensuring wealth is not wasted, and no injustice is performed by either of the contracting parties. Wealth protection and justice are the inherit characteristics of contracts in the Islāmic law. Any changes or modifications may void or decrease the protections provided in Islamic law. This research reviewed the theoretical aspects of contract modifications, by analyzing the procedures used for the derivative Shari‘ah compliant product contracts used in the Islamic finance industry in the United States. Data was evaluated and compared with the requirements of classical Islamic contract equivalents, to determine the effects of these changes.
Religious Studies and Arabic
D. Phil. (Religious Studies)

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Ahmad, Abu U. "Law and practice of modern Islamic finance in Australia". Thesis, 2007. http://handle.uws.edu.au:8081/1959.7/38404.

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The dissertation seeks to contribute to the existing body of work in the area of Islamic finance by examining the extent of divergence in practice of Islamic financing from the traditional Shari`ah in the Australian context. To this end, the dissertation presents a discursive analysis of the regulation of Islamic Finance in Australia in terms of (a) the financing instruments used, (b) certainty of transactions between participants in the system, and (c) institutional risk management of Islamic Financial Institutions (IFIs). The methodology chosen for the study is through the Shari`ah, where law, finance, economics and business form a single dimension only, even though a very significant one. Examination of the issues of this study is undertaken through the literature in the relevant field as well as the author’s personal expertise and working experience with several Islamic banks (IBs) and IFIs for a considerable period of time, in addition to his active involvement with at least two of Islamic Financial Services Providers (IFSPs) in Australia.

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Surtee, Bibi Fatima. "The accommodation of the Islamic law institution of Takaful under the South African insurance law". Diss., 2017. http://hdl.handle.net/10500/25301.

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With the rapid development of the Islamic banking and finance in South Africa, the legal regime of South Africa, must be able to progress at the same rate of development. The recognition of a foreign legal system such as Islamic law in South Africa is challenging and difficult. South Africa, has an interest based insurance legislative framework and this is not aligned with the principles of the Islamic financial system. As a result of this, regulators have taken various measures to develop and promote the Islamic Industry. The amendment to the South African Tax legislation has created an equitable and level playing field for Islamic law. The South African government also has a further obligation which is to develop a legislative framework to govern Islamic law, as well as to enhance the regulatory and supervisory framework. The study of the development of the Islamic legal regime is an important area that aids legal practitioners in identifying and resolving legal disputes. The purpose of this paper is to examine the accommodation of the Islamic law of Takaful under the South African Insurance legal framework.
Public, Constitutional and International Law
LL. M. (Public, Constitutional and International Law)

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Morapi, Lesetja. "The regulation of Islamic banks and financial institutions in South Africa". Thesis, 2015. http://hdl.handle.net/10210/14012.

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LL M. (Commercial Law)
It is believed that Islamic banking and finance is currently the fastest growing system of banking in the world. In 2010, Islamic finance institutions reported an estimated USD 1 trillion in global assets, and an estimated growth rate of 15%.1 Many countries have taken notice of this growth, and have attempted to implement measures that will allow them to best reap their share of the spoils. This dissertation will attempt to explain the nature of Islamic banking, its history and development, as well as the main principles upon which it is based. The dissertation will then compare Islamic banking and its Western or conventional banking counterparts as well as advantages and drawbacks of both systems. The dissertation will attempt to provide an exposition of the current regime in South Africa and its impact on the functions of Islamic banks, as well as providing an explanation of how these banks operate within the South African legal framework. The dissertation will also explore the legal systems and regulation of Islamic banks and other financial institutions in other jurisdictions, and also attempt to provide a guide as to whether the South African position needs reform or whether it is sufficient to take advantage of this growing sector of finance ...

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Gintzburger, Anne-Sophie H. M. "The sources in variation in the application of Shari'a-compliant finance contracts : a comparative analysis of Shari'a scholars, Shari'a board roles, and regulatory variations in Malaysia and the Gulf Cooperation Council (GCC) states". Master's thesis, 2009. http://hdl.handle.net/1885/151670.

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John, Jerome. "Performance analysis of Shari'ah compliant equity portfolios and non-Shari'ah compliant equity portfolios in South Africa: a comparative study". Thesis, 2012. http://hdl.handle.net/10539/11978.

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Patel, Ebrahim. "A South African perspective on the investment performance of ethical funds compared to conventional funds and investor behavior as regards ethical funds". Thesis, 2016. http://hdl.handle.net/10539/21575.

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A thesis submitted to the Faculty of Commerce Law and Management, University of the Witwatersrand, Johannesburg, in fulfilment of the Degree of Doctor of Philosophy
Ethical investing has become increasingly prevalent in recent years and mirrors a rise in shareholder activism, consumer ethics and corporate social responsibility. Shariah funds are a subset of ethical funds. The rise in popularity of ethical funds has raised questions as to whether ethical funds perform better than conventional funds, and whether ethical funds are riskier than conventional funds. A number of studies have been carried out in different countries utilising the traditional performance measures as well as factor models to determine the risk profile and returns of ethical funds compared to conventional funds. These studies have shown that the results are country specific and hence each country needs to be analysed separately. The aim of this study is to investigate ethical funds (incorporating Shariah funds) in the South African context. The study examines the performance and risk profile of ethical funds relative to conventional funds utilising traditional performance methods as well as the CAPM model and Fama French 3-factor model. Furthermore, the study determines the factors that influence investors to invest in ethical funds and to examine their investment preferences when choosing between conventional funds and ethical funds through a survey of Muslim investors. Finally, the study examines the role of advertising in ethical fund investment and investigates whether the marketing material of ethical funds is aligned to investor requirements by utilising content analysis to compare the fact sheets of various mutual funds for the presence of factors identified as important by investors. The empirical results show that conventional funds outperformed ethical funds with a greater variability of return over a truncated time period. Both ethical and conventional funds were driven primarily by the market return with no clear style bias. In fact, ethical funds had a stronger beta to the ALSI than to the JSE SRI index. The qualitative analysis showed that the sampled investors perceived conventional funds as offering better returns, but being more risky. The sampled investors were willing to undertake financial sacrifice in order to invest according to their faith. The most important source of information regarding investments was cited as professional advice, followed by word of mouth and advice from family and friends. Advertising came in behind these factors and was not an influential source of information for the sampled investors. The factors most important to investors when deciding to invest in a fund was the philosophy of the fund (i.e. it’s investment strategy or ideology) followed by the risk profile of the fund and past returns of the fund. The content analysis showed that the factsheets of South African mutual funds were aligned to the factors identified by the sample of investors as most important with influencing their decision to invest. Moreover, conventional funds focused more on returns than risk, with ethical funds focusing more on risk than return – thus funds tended to emphasise their strong points most in their factsheets.
MB2016

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Alagha, Hani S. "Corporate Governance Practices and Firm Performance of Listed Companies Including Islamic Financial Institutions in the United Arab Emirates". Thesis, 2016. https://vuir.vu.edu.au/30150/.

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Corporate governance is considered to have significant implications for the growth prospects of an economy. Well-formulated corporate governance mechanisms are regarded as important not only in reducing risk for investors, but also in protecting shareholders’ value as well as in improving and enhancing a firm’s performance. However, corporate governance mechanisms do vary between countries, as each country is unique in its political, economic, legal, culture and social contexts. Each country has its own corporate governance regulations with respect to various aspects of corporate management, which come under public domain. The United Arab Emirates (UAE) also has its own corporate governance rules introduced in 2010. The results of the study reported here evaluate the consequences of compliance with different components of the rules by UAE firms. The conclusions of the study lead to some recommendations to the UAE regulatory authorities. The purpose of this study was to investigate the extent of compliance with various components of corporate governance rules of 2010 and their relationship between corporate governance practices and performance of financial and non-financial firms and conventional and Islamic banks in the context of the UAE. The study investigated the impact of the implementation of 2010 corporate governance rules and the extent of changes to corporate governance practices two years later (in 2012). During this period, firms that operated in the UAE were experiencing the impact of the global financial crisis of 2008-2009 and its aftermath.

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Ahmad, Abu U. "Islamic banking in Bangladesh". Thesis, 2002. http://handle.uws.edu.au:8081/1959.7/247.

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This study is primarily concerned with the theory of Islamic banking and its practice in Bangladesh, and shari’ah and its four sources forming the basis of Islamic banking are discussed at length. The research seeks to: analyse the theoretical foundations of Islamic baking and practice in Bangladesh; examine areas of similarity and differences between the structure and practices of Islamic banking and conventional banks; and identify the problems, challenges and prospects of Islamic banking in Bangladesh. The dissertation examines primary and secondary sources and draws on fieldwork in Bangladesh and the author’s personal experiences. The study undertaken shows that over the years there has been an expansion of Islamic banking in Bangladesh. Islamic banks are competing successfully with their conventional counterparts in an environment where rules, regulations and regulatory bodies are designed to facilitate banking based on interest. At the same time it has become apparent that the profit and loss sharing framework, which is one of the cardinal principles of Islamic banking, has yet to take deep root. The current profitability of Islamic banks is often maintained by products and services, which on closer analysis resemble broadly the products of conventional banking. It is thus suggested that more in depth research should be undertaken by Islamic bankers and scholars to study products and services of conventional banking with a view to adapting them successfully to the tenets of shari’ah.

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