Executive insight – Standard Chartered

Hedging becomes halal as the long awaited tahawwut arrives

 

The Islamic finance market is currently undergoing structural transformation. Arguably, the most significant legislative development in 2010 for the industry was the publication of the Sharia-compliant Tahawwut (hedging) Master Agreement (TMA).

The TMA is the first standardized cross-jurisdictional document of its kind for privately negotiated Islamic hedging products. It has been developed by the International Swaps and Derivatives Association (ISDA), together with the International Islamic Financial Market (IIFM), under the approval of the IIFM Sharia Advisor Panel and in consultation with market participants (such as the Dubai International Financial Center authority and Standard Chartered Saadiq).

The completion of this document has been regarded as monumental for the Islamic hedging sector. The global crisis highlighted the importance of more robust risk management processes and standardization of Islamic hedging documentation in the context of Islamic derivatives. ISDA and IIFM worked closely with the Sharia scholar community to ensure that the structure and content of the document would meet approvals across the board; such consensus was finally secured after protracted negotiations.

The Tahawwut Master Agreement

The TMA is modeled on the 2002 ISDA Master Agreement which is used by market participants to document conventional derivative transactions, but unlike the conventional master agreement, the TMA is limited to Islamic hedging products such as profit rate and currency swaps.

The document complies with the requirements of Sharia Law and accordingly the form eliminates interest and stipulates that trades may not be entered for gambling purposes (but solely for the purposes of hedging). In addition, no settlement based on valuation or without tangible assets is allowed. It is essentially a framework agreement where Islamic structures such as murabahas (a sale and deferred payment arrangement used to provide trade or acquisition finance) and wa’ads (unilateral promises) are documented, which includes completed and future transactions. Fundamentally, the agreement creates the hedging mechanism by separating various legs of the underlying hedged transactions for the purposes of Sharia compliance.

Make or break

Industry participants have claimed that the TMA is a highly innovative document that achieves standardization without compromising on Islamic principles. Afaq Khan, chief executive officer of Standard Chartered Saadiq, stressed that the TMA will allow Islamic banks to offer end-to-end solutions to their customers and will allow better treasury-risk management tools for Islamic financial institutions to competitively manage market risks. However, to this date, the TMA remains untested in the market.

Firstly, it appears that in some Muslim countries market participants would rather conform to locally established hedging techniques. Secondly, from a technical perspective, the close-out netting mechanism — close-out netting allows parties to aggregate their exposures and reduce them down to a single payment following a default or other termination event by a counterparty — in the TMA faces practical limitations as it can only be enforced on counterparties in jurisdictions where netting is part of the national insolvency law, such as common-law based legal regimes.

Will change come in 2011?

Overall, in spite of all the industry’s efforts, it is unclear at this point in time whether the agreement will become widely used in the market. One must not forget that when the 2002 ISDA Master Agreement was launched, key market players were reluctant to use it and they preferred to rely on the 1992 form. Eventually, the 2002 version superseded the 1992 form.

Change is a perpetual characteristic in the current business environment and in spite of the Islamic industry’s adherence to existing practices, the benefits of market standardization outweigh any potential risks. In the spirit of standardization and innovation, the adoption of this document by market participants would be a positive development and there is a strong consensus in the market that 2011 might be the break-through year for the TMA.

 

Nicole Purin

Nicole Purin is senior legal counsel at Standard Chartered Bank

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