BENEFICIAL OWNERSHIP IN ISLAMIC FINANCE: HIGHLIGHTS ON SHARĪʿAHAND ACCOUNTING ISSUES INVOLVED

Abstract

This paper examines the ownership from Sharīʿah perspective to ascertain the conformity of beneficial ownership as applied in the Islamic finance industry to the concept of ownership in Sharīʿah. It also studies several Sharīʿah concepts and contractsthat share the attribute of beneficial ownership under common law. It highlights some Sharīʿah and accounting issues relating to rights conferred parties involved in the structure of sukūk issuance, asset financing and challenges pertinent to financial reporting in beneficial ownership based on ṣukūkijārah. The study finds the concept of beneficial ownership is not peculiar to common law as similar practices can be found in some Sharīʿah concept and contracts such as waqf, ijārah, iʿārahand etc. It also found that linked transactions, derecognition and consolidation are some accounting items which need to special Sharīʿah compliant account treatment to cover gaps between IFRS and AAOIFI FAS. The paper employs qualitative research method using content and document analysis to analyse data gathered from the literature.

This study has demonstrated another approach of examining the concept of beneficial ownership, which would guide the industry to understand the true nature of beneficial ownership. It also identifies accounting issues and the need for each jurisdiction to tailor made its accounting standard using IFRS and AAOIFI FAS to facilitate the track in a manner that serves best the local interest without jeopardizing Sharīʿah requirements.

Section one

Introduction

The concept of beneficial ownership has long been established in Anglo-American common law through the development of trust law aiming at distinguishing beneficial ownership from legal ownership. Unlike the common law, civil law does not have provisions for trust that forms the basis for introduction of beneficial ownership in common law. Today, as Islamic banking and finance grows exponentially, the issue of beneficial ownership has become the centre of debate, among many stakeholders particularly Sharīʿah scholars who are points of reference on the Sharīʿah

compliance of all activities of Islamic banking and finance. Despite much attention given to this issue there remain gaps.

This article examines the Sharīʿah recognition of beneficial ownership focusing on its characteristics and attributes in Sharīʿah. It also examines selected Sharīʿah concepts that share

similar attributes of beneficial ownership under English common law. Since the application of beneficial ownership expecially in ṣukūkis commonly applied to ṣukūkijārahthe paper has examined some of the accounting issues related to its [beneficial ownership] inṣukūkijārah.

The paper has used qualitative approach using content analysis to analyse data and information gathered from primary sources and secondary on this subject. It also employed document analysis as one of the tool to substantiate information from the literature.

The paper is structured as follows: First section involves an introductory part. Second section discusses the concept of ownership, its types and its characteristics with special focus on beneficial ownership. Third section examines the application and Sharīʿah issues pertinent to beneficial ownership. Fourth section studies some accounting issues pertaining to ṣukūkijārahas Sharīʿah mode of beneficial ownership followed by conclusion and recommendation.