Mian Muhammad Nazir The compatibility of contemporary insolvency legislation in the context of Islamic financial institutions and Islamic capital markets instruments is an important subject which regulators, courts and other stakeholders must address sooner rather than later to ensure the sustainable and continuous growth of the industry. This issue deserves more serious consideration from the legislatures and regulators as lack of an appropriate and legal and regulatory regime on insolvency in respect of Islamic financial institutions would certainly affect insolvency proceedings and the remedies sought or granted pursuant to such proceedings. Some of the most commonly used Islamic contracts and instruments result in automatic preference for investors and, in some cases, particularly when the competing obligations of an obligor are not shariah compliant, even a contractual waiver (either for a pari passu arrangement or sub-ordination) may not be effective. Considering the unique business model of Islamic financial institutions (IFIs) and the nature of the shariah nominate contracts and instruments, many of the well-drafted laws and regulations on insolvency may not be relevant to IFIs in the event of any insolvency or restructuring proceedings.
January 24 2013