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Legal Regulation of Sukuk and the Method of Distinguishing Thereof from Bonds

Auther : Dr. Mohammed Mubarak Fadeel Albasman

Legal Regulation of Sukuk and the Method of Distinguishing Thereof from Bonds “Study in the Kuwaiti Law and the Comparative Law” Dr. Mohammed Mubarak Fadeel Albasman The economic and commercial life experiencing constant evolution and the financial institutions, working therein, are searching for new financial instruments to realize more investment options and financing instruments. Sukuk “Islamic Bonds” have emerged as one of these new financing instruments. These Sukuk are tradable securities of equal value subjected to the Islamic finance methods and complying with the provisions of Islamic jurisprudence. Occasionally, some people confused between Sukuk and the fixed interest bonds; therefore the research focused on the legal regulation of Sukuk, the method of distinguishing thereof from bonds, definition of Sukuk and its multiple advantages and features, and presented examples of certain applied cases thereto. Sukuk based on Taskeek “Sukuk Issuing” idea which closely resembles the Securitization theory known in the legal life. It means to place assets basically to issue Sukuk which are financial assets. But the idea of Taskeek “Sukuk Issuing” is different from securitization in several aspects, where Taskeek is broader than Securitization with respect to its scope and meaning. The Kuwaiti legislator tried to intervene legislatively to rectify the lack of legal perspective witnessed by Sukuk in the State of Kuwait, but it was flawed and incomplete remedy thereto; therefore Sukuk lived in the absence of the legislative provisions and the shortcomings in legal remedy thereto. Accordingly I tried, through this research, to identify the different legal experiments carried out to rectify and regulate Sukuk, therefore the study was a comparative legal study. Based on the above, the Kuwaiti legislator should intervene quickly to establish integral legislation thereto due to the urgent need for Sukuk whether from private financial institutions or from the government represented in the Central Bank of Kuwait, particularly after subjection of Islamic Banks in the State of Kuwait to the surveillance of the CBK.

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Oct 20, 2019

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