Sharia and securities trading is the impact of conventional financial markets activity for those following the islamic religion and particularly sharia law. Sharia practices ban riba (earning interest) and involvement in haram. It also forbids gambling (maisir) and excessive risk (bayu al-gharar).[1] [2] This, however has not stopped some in Islamic finance industry from using some of these instruments and activities, but their permissibility is a subject of "heated debate" within the religion.[3]
Of particular interest are financial markets activities such as margin trading, short selling, day trading and derivative trading including futures, options and swaps which are considered by some as haram or forbidden.
The Islamic banking and finance movement that developed in the late 20th century as part of Islamic schools and branches[4] sought to create an alternative to conventional banking that complied with sharia (Islamic) law. Following sharia it banned from its practices riba (usury) – which it defined as any interest paid on all loans of money[5] [6] – and involvement in haram (forbidden) goods or services such as pork or alcohol. It also forbids gambling (maisir) and excessive risk (bayu al-gharar).
This meant that not only were interest-bearing loans, accounts, and bonds not allowed, but many financial instruments and activities common in conventional financial markets have been forbidden by most Muslim scholars because of their connection with maisir or gharar (and also sometimes because they involve payment of interest). These include margin trading, day trading, short selling,[7] and financial derivatives such as forwards, futures, options, and swaps.[8]
This, however has not stopped the Islamic finance industry from using some of these instruments and activities.[3] While they often involve more risk than other investments and are used by speculators, they are defended as having useful economic functions. They are used in a large number of financial procedures, help manage risk and volatility (among other things), and provide incentives for employee productivity and innovation.
The Quran states in aya 2:275 that "Allah has permitted trade and forbidden usury."[9] But not all trade is allowed in Islam. The Qur'an prohibits gambling (maisir, games of chance involving money). While the Quran does not specifically mention gharar (risk), several hadith prohibit selling products like "the birds in the sky or the fish in the water", "the catch of the diver", or an "unborn calf in its mother's womb". These have been called bayu al-gharar (literally "trading in risk",[10] defined as sales in which gharar is the major component).
Jurists have distinguished between this kind of forbidden gharar, and gharar considered minor (yasir) and so permissible (halal),[11] but disagree (according to at least one source, Abu Umar Faruq Ahmad), over what constitutes each kind,[12] and have not agreed on an exact definition of the meaning and concept of gharar.[13]
Commonly used financial instruments and practices that are often considered haram are:
borrowing money to buy shares of stock or other financial instruments;
borrowing/renting shares of stock or some other instrument and selling it on the hope that its can be later repurchased at a lower price for a profit;
very short term buying and selling of financial instruments; and
contracts that derive their value from the performance of an underlying asset; (These form a very large market. The "notional value" of the world's over-the-counter derivatives at the end of 2007, (according to the Bank of International Settlements) was $596 trillion. The gross market value of all outstanding derivatives was $14.5 trillion at the end of 2007.) The most commonly used derivative are:
contracts where traders don't own any shares or commodities of an organization. In these contracts, a profit or a loss is made through estimation of the future price (almost identically to the case with purchasing a real stock);
customized contracts to buy or sell an asset at a specified price on a future date. unlike futures contracts forward contracts are not traded on any exchanges;
a legal agreement to buy or sell a particular commodity or financial instrument at a predetermined price at a specified time in the future;
contracts offering the buyer the right, but not the obligation, to buy (call) or sell (put) a security or other financial asset at an agreed-upon price (the strike price) during a certain period of time or on a specific date (exercise date);
contracts through which two parties exchange financial instruments to transfer risk.
Options, futures and "other derivatives" are "generally" not used in Islamic finance "because of the prohibition against maisir" (according to Thomson Reuters Practical Law).[15] Margin trading, day trading, options, and futures are considered prohibited by sharia by the "majority of Islamic scholars" (according to Faleel Jamaldeen). Margin trading (because it involves borrowing money to buy what is being traded) involves interest payments in margin accounts, day trading (because it involves buying and selling financial instruments within the same trading day) is not concerned about the underlying product or economic activity of what is traded.One source (Investopedia) states "gharar is observed within derivative transactions such as forwards, futures and options, as well as in short selling and in speculation."[16]
Juan Sole and Andreas Jobst write that "legal scholars" have alleged that derivatives "contain excessive uncertainty (gharar)" and "encourage speculative behavior akin to gambling (maisir)".[17] According to economist Feisal Khan, derivatives (essentially securities whose price is dependent upon one or more underlying assets) "fail" the tests of Islamically permissible by lacking `materiality` (i.e. a direct link "to a real underlying economic transaction"), and involving speculation. Furthermore, "almost all conservative Sharia scholars" have ruled that `when applied to modern financial contracts, the prohibition of gharar eliminates futures, options, and some life assurance contracts`".[18] [19] Taqi Usmani forbids most futures transactions because their "delivery or possession is not intended and therefore the niah [goal, purpose] of the contracting parties is questionable".[20] Investopedia states "In Islamic finance, most derivative contracts are forbidden and considered invalid because of the uncertainty involved in the future delivery of the underlying asset. Faleel Jamaldeen writes that
the majority of Islamic scholars agree that options have features of speculation and gambling. In addition, the investor (second party) doesn't intend to hold the asset (which is generally considered crucial for an investment to be sharia-compliant). Based on these characteristics, most Islamic scholars believe that options are prohibited investments.[21]
On the other hand, some Islamic finance practitioners and critics find benefit in at least some uses of derivatives and short selling.
At least one scholar (Mohammed Hashim Kamali) finds "nothing inherently objectionable" in selling and using options, which like other kinds of trade (he believes) is mubah (permissible) in fiqh, and "simply an extension of the basic liberty that the Quran has granted".[28]
Economist critic Feisal Khan points out the "current relatively strict interpretation" by ulama of ahadith related to trade and commercial transactions have a wide-ranging impact on basic bank functions since "virtually all" financial instruments involve the interest rate "in some way or form". Thus the "current relatively strict interpretation of the hadith related trade and commercial transaction" would ban
"not only speculative financial transactions such as options and futures but also, for example, hedging by forward sale, interest-rate swaps, and any transaction involving items not physically in the possession of the seller (e.g. short sales) and all other forms of derivatives, i.e. financial securities that have no underlying real transactions.[29] [30] [31] ... Activities such as bill discounting and government debt issue with a fixed coupon rate, inflation indexing, securitized debt obligations, and foreign exchange dealings would also be prohibited unless cumbersome intervening steps reminiscent of the medieval contractum trinius are undertaken."[32]
Opposition by conservative Islamic scholars to use of derivatives as a form of gambling that violates sharia law exposes the Islamic Finance industry "to risks of increased volatility" when markets deteriorate, according to Y-Sing.[33] Agil Natt, chief executive of the International Centre for Education in Islamic Finance, asks, "when does risk management end and gambling begin?"
One defender of the use of options in Islamic banking is Andreas A. Jobst of the International Monetary Fund,[34] Along with Juan Sole, Jobst writes that "many" shariah scholars "now accept the application of hedging of actual exposures as an essential element of sound risk management and acknowledge the opportunity cost imposed by a lack of Islamic hedging tools."Jobst argues that using derivatives for risk diversification "contributes to the continuous discovery of the fair market price of risk, improves stability at all levels of the financial system and enhances general welfare." Specifically, issuing stock options to employees is a common way of increasing productivity.
Short-sellinghas been forbidden by "conservative scholars" because it requires the selling of an item by the investor that they do not own. However "some Shariah-compliant hedge funds" in at least one country with a large financial sector (the United States) have created a way to short shares of stocks that has been "Shariah-certified", according to Feisal Khan. It requires a "down-payment" towards the shorted stock instead of "margin" (borrowed money).[35]
Another source, Irfan A Naheem (a representative of a Sharia consulting firm) states that Islamic hedge fund managers have "developed alternative Shariah compliant strategies" with two instruments — "Salam and Arbun" — being "the Islamic alternatives for the conventional short selling."[36]
Naheem argues that the hadith (where the Islamic prophet Muhammad commands: "sell not what is not with you") — which is traditionally interpreted by Muslims as an injunction not to sell what you do not own — actually may refer only to the sale of items that are unique or not commonly available. If something is readily available (such as an instrument is in a short sale) then borrowing and selling is not forbidden (Naheem contends).
See also: Derivative (finance). As of 2013 the Islamic derivatives market was "in its infancy" and its size was not known. The Islamic derivatives — or at least derivatives declared sharia compliant — include swaps, and put and call options.[39]
Faleel Jamaldeen describes the Islamic swap market as being composed of two kinds of swaps:
(Versions of both of these two swaps — called the Islamic Profit Rate Swap and the Islamic Cross Currency Swap — as well as a version of a derivative called the Islamic Forward Rate Agreement, are offered by one Islamic bank (Standard Chartered Saadiq Malaysia)).[43]
"designed to govern the legal and credit relationship between two parties embarking on a bilateral trading relationship involving Shari’a-compliant hedging transactions based on murabaha transactions."[46]
Juan Sole and Andreas Jobst describe the standard as an "innovative" pan-madhab agreement spanning "all five major schools of Islamic jurisprudence".[47] It has "strong parallels" to the 2002 ISDA Master and Schedule of the conventional banking industry.[48] Irfan urges Islamic financers to use this Tahawwut or "Hedging Master Agreement"[49] and benefit from the cost saving of its standardization, but lamented that it has not being widely used as of 2015.[50]
In March 2012 the ISDA and IIFM issue another product standard, the ISDA/IIFM Mubadalatul Arbaah, to provide "an Islamic risk mitigation framework for the industry".[51] [52]
Another "hedging tool" (but not a standard) is the "Islamic Profit Rate Swap" (IPRS) which "allows two parties to exchange a series of profit payments in a single currency in exchange for another series of payments in the same currency". It has been described by the Islamic Bankers Resource Centre as an "alternative" to the Tawarruq Murabaha and similar to it except that the underlying assets it uses for the transaction are not actual commodities but the Mudharabah Islamic Interbank ("MII"), and it uses Bai Inah contracts instead of Murabaha. The IPRS involves "three Shariah concepts": the Wa'd, the Bai’ Inah and the Muqassah.IPRS has been used quite a bit in Malaysia but its Bai Inah contract is "rejected" in the Middle Eastern countries.
A standard used "to facilitate" the Islamic Profit Rate Swap is the Islamic Derivative Master Agreement (IDMA), issued by Malaysia's central bank, the Bank Negara Malaysia, in 2007.
Wa'd (literally "promise"), is a principle that has come to underpin or to structure shariah-compliant hedging instruments or derivatives that provide substitutes for conventional hedging products such as forward currency contracts and currency swaps.[53] [54] [55] However, Wa'd has been called "controversial", and its products criticized as mimicking conventional ones and "'Islamic' in form alone".[56]
A "Double Wa'd" (literally "double promise") is a derivative that allows an investor to invest in and receive a return linked to a financial benchmark — such as an index of interest-bearing US corporate bonds — that would normally be in violation of Shariah. The investor's cash goes to a "special purpose entity" and in return they receive a certificate to execute the derivative.[57] This involves a promise that on an agreed day in the future the investor will receive a return linked to the chosen benchmark. (If the interest-bearing US corporate bond index has gained 10%, for example, the investment gains 10% although no corporate bonds have been purchased.)Several features of the double wa'd (allegedly) make the derivative sharia compliant:
So despite the fact that benchmark involves non-compliant investments, the contract is not "bilateral" (something forbidden by sharia), because "the two undertaking promised are mutually exclusive", and this (proponents say) makes it in compliance with shariah.[59]
Like the Islamic equivalent for short sales, a number of Islamic finance institutions have been using the down-payment sale or urbun as an Sharia-compliant alternative to the conventional call option.In this mode the Islamic equivalent of the option "premium" is known as a "down-payment", and the equivalent of the "strike price" is called the "preset price".
With a conventional call option the investor pays a premium for an "option" (the right but not the obligation) to buy shares of stock (bonds, currency, and other assets may also be shorted) in the hope that the stock's market price will rise above the strike price before the option expires. If it does, their profit is the difference between the two prices minus the premium. If it does not, their loss is the cost of the premium. When the Islamic investor uses an urbun they make a down payment on shares or asset sale in hope the price will rise above the "preset price". If it does not their loss is the down-payment which they have the right to forfeit.[63] [64]
A put option (i.e. where the seller has the right but not the obligation to sell at a preset price by some point in the future, and so will profit if the price of the underlying asset falls below that price) is called a `reverse urbun` in Islamic finance.[65]
According to El-Gamal, "most analysts" who examine the differences between the urbun down payment and the call option have "concluded that the latter cannot be synthesized from the former."[69] Feisal Khan quotes Ayoub as describing the use of the urbun down payment for a call option as "extremely controversial among `traditional`" Islamic banking and finance scholars.[70]