Viability of Derivatives in Radical Islam. A Comparative Assessment of the Technical and Shariah-Compliant Characteristics of the Main Islamic Financial Instruments: Contracts & Defaults in the Prospect of Revivalism
[eng] This work examines the prospective viability of derivatives and financial contracts more generally under a strict application of Shariah law. The author adopts a cross-disciplinary approach in order to convey the idea that some of the most popular contracts and arrangements in Islamic finance...
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| Tipo de recurso: | tesis doctoral |
| Estado: | Versión publicada |
| Fecha de publicación: | 2020 |
| País: | España |
| Institución: | Universidad de Barcelona |
| Repositorio: | Dipòsit Digital de la UB |
| OAI Identifier: | oai:diposit.ub.edu:2445/150960 |
| Acceso en línea: | https://hdl.handle.net/2445/150960 http://hdl.handle.net/10803/668696 |
| Access Level: | acceso abierto |
| Palabra clave: | Dret privat Civil law |
| Sumario: | [eng] This work examines the prospective viability of derivatives and financial contracts more generally under a strict application of Shariah law. The author adopts a cross-disciplinary approach in order to convey the idea that some of the most popular contracts and arrangements in Islamic finance law are deficient from a structural and Shariah-compliance perspective. The thesis argues that the investor protection issues arising from this conclusion are sufficiently serious to undermine the viability of these instruments not only in a radical but also in a more conservative environment. This conclusion is arrived at after an in-depth analysis of the fundamental Shariah principles, relevant to finance, placing them in a historical, jurisprudential and political context. The work endeavours to guide the reader through the many turns of Islamic law, breaking down established concepts and questioning their application in modern Islamic law. For example, the author unpacks the notion of wa‘d (promise), arguing that its extensive use in Islamic contracts renders much of the resulting complex transactions deficient from a structural perspective. Furthermore, this work highlights technical and Shariah-related weaknesses in essential contract forms, with a particular focus on murabaha. Importantly, the author approaches the research question from the viewpoint of contracts – comparing constructs of Islamic Contract Law to those of its Common Law counterpart, without ignoring relevant influences and inspirations coming from the civil law tradition. The purpose of this comparison is to establish that some of the most popular financial arrangements, such as sukuk, are deficient in their investor protection provisions. What is more, the author underlines that due to the hybrid characteristics of the sukuk instrument and the lack of tailor-made regulation, investors are inadequately provisioned for the event of issuer‘s default. Starting with the idea that the sukuk instrument is structured on the basis of and resembles a number of conventional instruments, the thesis examines the possibility for a sukuk investor to obtain redress under US and UK law, as well as the comparable provisions in Malaysia and France. Alongside this, the author delves into the beginnings, inspirations, main strands and important political leaders of Islamic Revivalism. The aim of this inquiry is to arrive to a convincing explanation about the political and economic developments in established and aspired to Islamic States. To this end, this work offers a case study of Iran and ISIS, including an analysis of the Iranian Islamic finance system and a hypothesis about the possible approach of a jihadi-salafist government to the financial framework of their aspired to State. As a last point, the work considers how FinTech fits within the objectives of Shariah law and more specifically, its risk-management and social justice strategies. The thesis offers conclusions which draw on the extensive research and map out a possible view of the future of financial instruments in a radical Islamic environment. |
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