Page 163 - IANUS n. 26 - Fideiussioni omnibus e intesa antitrust: interferenze e rimedi
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IANUS n. 26-2022                       ISSN 1974-9805





               by Shari‘ah scholars in Islamic finance, as well as the recommendations by the
               Accounting  and  Auditing  Organization  for  Islamic  Financial  Institutions
               (AAOIFI). 53
                  For instance, the principle al-kharaj bi-l-daman as ‘risk linked to the res’ finds a
               direct  application  in  the  definition  of  sukuk,  Shari‘ah-compliant  investment
                         54
               certificates,   according  to  Art.  2  AAOIFI  Shari‘ah  Standards.  Here  investment
               sukuk  are  defined  as  «certificates  of  equal  value  representing  undivided  shares  in
               ownership of tangible assets, usufruct and services or (in the ownership of) the assets
               of particular projects or special investment activity» [italics not in the original text]
               and, according to Art. 5/1/2, «it is permissible to issue certificates for (to securitize)
               assets that are tangible assets, usufruct and services by dividing them into equal
               shares and issuing certificates for their value. As for the debts owed as a liability, it
               is not permissible to securitize them for the purpose of trading».
                  The  reference  to  the  ownership  of  tangible  assets,  usufruct,  and  services  as
               ‘source’  of  legitimate  profit  for  the  sukuk  holder  is  clearly  related  to  the
               interpretation previously given of the principle al-kharaj bi-l-daman; the reference
               to ‘undivided shares’ finds justification in the undivided character of the reference
               pooling; the criteria of primacy of real economy, transactional equilibrium and
               profit-loss sharing clearly emerge as well.
                  The same principle has been confirmed in a resolution by the AAOIFI Shari‘ah
               Board (13-14 Feb 2008, Bahrain) on the issuance and trade of sukuk, which has
               brought  about  massive  consequences  on  the  market  of  Islamic  securities,
               specifying that «sukuk, to be tradable, must be owned by sukuk holders, with all
               rights and obligations of ownership, in real assets, whether tangible, usufructs or
               services, capable of being owned and sold legally» [italics not in the original text].
                  The meaning of the ruling, with its reference to the ownership of the underlying
               assets, reflects a logic where commercial dealings are part of a ‘reality’ (haqq) created
               by  God:  accordingly,  the  ‘incorporation’  of  the  risk  in  real  assets,  through  their
               ownership or possession, guarantees the balanced distribution of gains according to
               the responsibilities assumed by the parties (al-kharaj bi-l-daman).
                  At this point, one may say that risk does not exist in Islamic finance as ‘unbundled
               commodity’ the way it does in conventional finance: on the contrary, since «risk of
               loss is deemed to be a characteristic either of legal ownership or possession, [… it is]
               not deemed property that can be exchanged for other property».
                                                                        55
                  Thus, in Islamic finance, the risk is shared when capitals or workforce are put

                  53  The Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI) is a
               non-for-profit organization established on 26  Feb 1990, aimed at proposing accounting, auditing,
                                                 th
               governance,  ethics  and  Shari‘ah  standards  for  Islamic  financial  institutions  and  the  industry
               (www.aaoifi.com): see, for instance, previous note 49.
                  54  In the global financial market investment sukuk are usually based on the contracts of mudaraba
               or musharaka; in the case of the sale or rent of the assets, other structures are applied (i.e. sukuk al-
               murabaha or sukuk al-ijara).
                  55  FADEL, The regulation of risk in Islamic law, the common law, and federal regulatory law, cit., 83.

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