CELESQ Webinar Attracting and Using Middle Eastern Money - Investing in Real Estate in a Shariah Compliant Way Steven J. Adelkoff, Jonathan Lawrence, Remsen M. Kinne IV June 23 2009 Attracting and Using Middle Eastern Money - Investing in Real Estate in a Shariah Compliant Way Introduction Basic Shariah Rules 2 What is Shariah? “O you who believe! Stand out firmly for Allah, as witness to fair dealing, and let not the hatred of others to you make you swerve towards inequality and depart from justice.” Qur’an 5:8 In the business context, Shariah is a means of conducting business through a distinct set of rules designed to facilitate fairness. High correlation between Shariah compliant investing and socially responsible investing 3 Where are Shariah rules codified? Interpretations of the Qur’an from various Islamic schools of thought Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI) The fact remains: Shariah mandates are not always consistently applied from Scholar to Scholar. Information is asymmetric, and Shariah Advisers and lawyers skilled in the area become useful to work through the counter-intuitive results 4 Shariah terms Halal – that which is permitted or compliant Haram – that which is not permitted Riba – charging of interest Gharar – the taking of unreasonable risk; gambling Sukuk – Shariah compliant debt Ijara – Shariah compliant lease Takaful – Shariah compliant form of insurance Maduraba/Musharaka – forms of partnership Murabaha – a form of Shariah compliant forward sale for commodities that is used as a fixed income substitute 5 Industry prohibitions Gambling Pork production or consumption Adult Entertainment Banking and finance Alcohol production or consumption Weapons production Tobacco production or use 6 Shariah-compliant investment screens Screens haram industries Screens use various ratios to determine if a company is too leveraged AAOIFI Shariah Standard No. 21 forms the basis of the theoretical underpinnings for screens and ratios. Debt to assets of 30% or less (3/4/2 of Standard 21) Impermissible income of 5% or less (3/4/3 of Standard 21) Many companies are now failing the total debt to market capitalization ratio test 7 Riba The charging of sums for borrowed money (i.e. interest) is forbidden But the pledging of Halal assets, the guarantying of obligations and the leasing of property under what we might consider a finance lease (or ijara) is permissible Murabaha is the selling of a commodity at an agreed upon mark-up, and is used in Shariah as a fixed income investment substitute. 8 Riba Things to Watch Out For: Default Interest Administrative fees for late payments Consideration in respect of third party guaranties (see AAOIFI Shariah Standard No. 5) Preferred Shares are generally not permitted (AAOIFI Shariah Standard No. 21); but dividends distributed from profits are permitted. 9 Gharar The act of taking on unreasonable uncertainty Examples of Gharar: Gambling Insurance FX Trading Options on stock (AAOIFI Shariah Standard No. 21, paragraph 16 of Appendix B) 10 Attracting and Using Middle Eastern Money - Investing in Real Estate in a Shariah Compliant Way Conventional Leasing v Shariah Compliant Leasing (Ijara) 11 Ijara Literal translation: providing goods or services for temporary use against a wage Qur’an legitimacy: “said one of them, ‘O my father engage him on wages’” (Qur’an Surah al-Qasas verse 26) and “if you had wished, surely you could have exacted some recompense for it” (Qur’an Surah al-Kahf verse 77) 12 Ijara (cont’d.) Sunnah legitimacy: “whoever hired a worker must inform him of his wages” and “ give a worker his wages before his sweat is dried” Scholar reasoning: Ijara is a convenient means for people to acquire the right to use assets that they do not own since not all people may be able to own tangible assets AAOIFI Standard No. 9 13 Lease terms Amendments to terms Duration Commencement date Deposit monies to secure the lease Two contracts for same asset for same period Sub-leases Sale and leaseback 14 Use of the real estate Prohibitions: Gambling Alcohol Pork Western style insurance and banking Defence industry Adult entertainment Controlling sub-leases and assignments 15 Treatment of rent Fixed for life of lease or adjusted periodically Rent variation via reference to benchmark based on clear formula Payment by lump sum or instalments Late payment Lease repricing Rent acceleration 16 Obligations of lessors and lessees Maintenance Major repairs Insurance cost Property defects Lessee misconduct Insurance 17 Guarantees and rental income Security to secure rental payments and against misuse of the property Instalments may be accelerated on failure to pay one instalment No increase in rental due to delay Charitable donation in lieu of penalty payment Future rental payments may not deducted from security enforcement 18 Selling of or damage to the leased asset Termination of Ijara lease on sale of property to lessee Lessee’s consent not necessary for sale to third party Total destruction: Ijara lease terminates Partial destruction: Lessor liable for damage or destruction of leased asset unless result of lessee’ misconduct or negligence 19 Termination, expiry and renewal Termination by mutual consent Unilateral termination Breach of lease terms Death of a party Total destruction of real estate Expiry at term Continuation for good cause Renewal by agreement or automatically 20 Leases that end in lessee ownership Ijara Wa Iqtina Resolution of the International Islamic Fiqh Academy No. 110 (4/12) Finance lease Unilateral promise of ownership transfer by lessor at end of lease term Unilateral promise with purchase schedule Purchase at end of lease term or in stages Lessor may not force lessee to buy 21 Leases that end in lessee ownership (cont’d) Ijara Mawsoofa Bil Thimma Often used in project finance Redeemable lease which buys out completed project Agreed in advance with initial construction deal 22 Attracting and Using Middle Eastern Money - Investing in Real Estate in a Shariah Compliant Way Sukuk - Shariah Compliant Leverage 23 Underlying principles Asset backing Entrepreneurial investment Defined credit participation Specific real business risk (vs. guaranteed interestbased return) 24 Definition of Sukuk Sukuk terminology Shariah-compliant securitized credit financial instruments 25 Definition of Sukuk (cont’d) Participation certificates Evidence investors’ right to return based on profitable investment Return results from actual asset ownership 26 Structure Shariah-compliant underlying asset Originator/sponsor sells asset to special purpose vehicle Asset sale transaction may be, for example, a lease back or a sale-repurchase Concurrent transaction by SPV with asset user, for example lease and purchase SPV issues securities to investors Investors hold direct ownership interest in underlying asset through SPV Pass-through payments 27 Sukuk documentation Documentation issues 28 Other key issues Bona fide purpose Return from profitable activity only Return not from debt, cash or other prohibited assets Insurance Credit enhancement, liquidity support, limitations of prepayment risks, guarantees 29 Governance and Regulatory Considerations Shariah rulings Commercial securities, taxation laws Regulatory organizations 30 Recent Developments Principal guarantees/repurchase agreements Accounting standards 31 Attracting and Using Middle Eastern Money - Investing in Real Estate in a Shariah Compliant Way Shariah Scholars and Advisers Anti-Money Laundering 32 Shariah scholars Part Judge, Part Jurist Usually operates in Shariah Boards of three or more Issues a Fatwa (Fatawa in the plural) No particular governing body or rules, just schools of thought and AAOIFI High demand and short supply Certain Scholars are exceedingly influential in certain countries There are no standard setting bodies, and Scholars have latitude. Information is asymmetrical. But sometimes Scholars disagree. 33 Shariah advisers Has relationships with various Scholars Has structuring expertise and knows what the Scholars will accept Is the bridge builder between conventional structuring of equity, debt or investment partnerships and Shariah 34 Purification The act of purging oneself of impure profit, by contributing the profit to charity A function of the Shariah Board is to tell investors what percentage of their profit is subject to purification Shariah Boards use to recommend the charities to contribute Haram profits; modern practice is simply to allow investors to contribute impure profits to the charity of their choosing 35 Tales of anti-money laundering Compliance in Shariah The Challenges of AML-KYC in Shariah Investing Who mandates which charities may receive purification dollars? The home address of “Two Oak Trees down the long road, and take a left at the Big Stone” When utility bills are in Arabic 36 Further resources www.aaoifi.com Accounting and Auditing Organization for Islamic Financial Institutions www.islamic-finance.com www.securities.com/ifis Islamic Financial Information Services (subscription required) www.shariahcap.com Shariah Capital www.sii.org.uk/web5/infopool.nsf/html/qintifq Securities & Investment Institute: Islamic Finance Qualification 37 Attracting and Using Middle Eastern Money - Investing in Real Estate in a Shariah Compliant Way Conclusion Any questions? 38