Debt trading issues

Trading in debt is regarded as immoral as the debtor is not consulted about who can buy their debt. New buyers may impose more onerous terms on the debtor and be more likely to seize the debtor’s assets, especially if there is ambiguity in the debt contracts over defaults. Such legal or contractual ambiguity is referred to as gharar, which is also condemned as potentially exploitative.

The Shari’ah scholars who validate sukuk documentation have a duty to identify and eliminate any clauses which have elements of gharar. Trading in sub-prime debt is also regarded with suspicion, as the buyers may profit if the debt is traded at a discount, but this brings no debt relief to the debtor. Not surprisingly many Shari’ah scholars saw the sub-prime crisis after the collapse of Lehman Brothers as a vindication of their view on debt trading.


Sukuk characteristics

For those involved in sukuk investment, and those seeking Islamic capital market finance, the prohibition of riba under Shari’ah  applies to all forms of interest and not only usury. Hence a sukuk cannot pay interest, but of course investors expect their capital to be repaid and a return earned. For ijara sukuk, the most popular form of sukuk which involves the securitisation of a leasing contract, the payment takes the form of a rent. With this type of sukuk the issuer sells an asset to a special purpose vehicle (SPV), a not-for-profit legal entity or trust, which is established to manage the sukuk payments. The SPV is normally described as the issuer, and all its administrative work is usually undertaken by the law firm which drew up the sukuk contracts. The functions of the issuer include collecting the invested funds, holding the title to the asset, receiving the rents from the originator who obtained the funding and paying these over to the investors.

Ijara sukuk contracts can be regarded as sale and lease back agreements, but they usually run for a fixed period, typically 3 to 5 years. At the end of the period the originator is contracted to repay the principal and in return gets the asset back. The repayment of the principal is made to the investors by the SPV, which is then wound up. If all commitments are honoured from the investors’ perspective the ijara sukuk has the same financial characteristics as a floating rate note, but has the merit of being Shari’ah compliant. The returns can even be benchmarked to conventional indicators such as LIBOR, but as the returns are legally rents, this means the payments are not classified as interest.


Credit risk

Where disputes over payments delays or payments failures arise with sukuk the means of redress are potentially more complex than for conventional notes and bonds. In particular under Shari’ah leniency towards debtors is favoured, but this inevitable raises moral hazard problems. There has been a reluctance however to introduce bankruptcy laws in most Muslim majority countries as seizing assets, such as a family home, is regarded as socially and morally unacceptable, not least as some of those living in the property may have been unaware of the debts incurred.

Although sukuk indebtedness is incurred by corporates and sovereign states rather than individual families, there is no distinction in Islamic law between how different categories of debtors are treated. As many large businesses remain under family ownership, especially in the Islamic World, it is difficult to see how such a distinction could be made. However the absence of clear bankruptcy procedures either deters investors or results in them expecting a risk premium.

For sukuk uncertainties arise over the rights of the investors when defaults occur and how they should seek redress. English Common Law concepts and mechanisms are commonly used for sukuk, with the SPV playing a key role as already indicated. The legal provision for sukuk represents a type of marriage between English Common Law, which is largely used for cross border financial transactions, and Shari’ah. Unfortunately marriages often fail when tensions arise, and this can also happen with the different legal and Shari’ah requirements with sukuk as currently structured.


The Golden Belt sukuk

The two major sukuk defaults in the Gulf were the Investment Dar sukuk, involving an investment company based in Kuwait, which had raised US$ 100 million, and the Golden Belt sukuk involving a Saudi Arabian company, which raised US$ 650 million. Neither default has been resolved but it is interesting to focus on the latter, as it was for a larger amount, and involved Citigroup as the trustee. The much publicised Nakheel sukuk in Dubai did not default despite investor concerns, and on maturity the funds raised were repaid in full despite the real estate crash in the Emirate.

The originator of the Golden Belt sukuk was the Saad Trading and Contracting Company, a private company involved in real estate development and commodity trading, based in Al Khobar in the Eastern Province of Saudi Arabia, the source of most of the Kingdom’s oil. Like other family businesses in Saudi Arabia it expanded rapidly from the 1970s onward and had a good reputation. It never sought a market listing however, which would have required more comprehensive financial reporting. Nevertheless the sukuk documentation included an audited report by Price Waterhouse Cooper’s Dubai office and KPMG Al-Fozan and Bannaga of Jeddah. The company was managed and owned by Maan Al Sanea one of the leading businessmen in the Kingdom.

The sukuk was launched in 2007 and fully subscribed, as with Citigroup playing the lead role this increased investor confidence. In addition Maan Al Sanea gave a personal guarantee which further increased confidence, especially with his Saudi peers. The financing was for five years, with the sukuk due to mature in 2012 when the investors would get their money returned. The sukuk was arranged in Bahrain, but this did not concern investors, as the island was a major centre for Islamic finance and was nearer to Al Khobar than Riyadh, as there is a causeway linking the island with the Eastern Provence. However other Saudi Arabian sukuk such as those by the Saudi Arabia Basic Industries Corporation (SABIC) and Saudi Electricity have been listed on the Tadawul, the Saudi stock market, and are regulated by the Capital Markets Authority in Riyadh. This was not the case with the Golden Belt sukuk.


The sukuk default

The payments default occurred in November 2009, two years after the launch of the sukuk. There had been extensive dealings between Maan Al Sanea and the Al Gosaibi family, another well- known Saudi Arabian business group. Ghazi Al Gosaibi, who died in 2010, was the Saudi Arabian ambassador in London from 1984 to 2002 before being recalled to Riyadh to serve as Minister of Water and Electricity, and later until his death, as Labour Minister. Unfortunately when the Saad Trading and Contracting Company lost significant funds due to the deteriorating conditions after the global financial crisis, it was unable to meet its financial obligations to the Al Gosaibi family, and the latter consequently faced financial ruin. In response the Saudi Arabian government froze the assets of both family businesses, which meant there were no funds which could be paid to the Golden Belt sukuk investors.

Over three years after these events little has changed as the assets remain frozen and Maan Al Sanea is unable to leave the Kingdom to attend the numerous court cases brought by his creditors. Société Générale succeeded in getting a High Court Ruling in London that Saad Trading should pay $50 million for a letter of credit on which the latter defaulted, but this cannot be enforced while the Saudi assets remain frozen. Saad Trading has other assets worldwide, but many are held by companies based in the Cayman Islands, and it is difficult to ascertain the extent or the location of the assets. The possibility of the sukuk investors getting their funds returned seems remote, even though they have agreed that the trust which holds the assets be dissolved. At present the sukuk are trading informally at 25 cents to the dollar, which is an indication of the minimal likelihood of repayment.


The implications of the default

Not surprisingly concerns were expressed that the default of the Golden Belt sukuk would undermine the reputation of this class of asset, and indeed Islamic finance more generally. It was also asserted that it demonstrated the weakness of the Saudi Arabian legal and regulatory system and would negatively impact on future sukuk issuance in the Kingdom. Neither is the case. Rather at least some of the blame for the failure rests with the banks involved in the arranging for a lack of due diligence, notably Citigroup, and the auditors who did not object to a rather narrow view of the activities of the Saad Group appearing in the prospectus.

There have been numerous controversies over sukuk structures, including the role of the issuer versus the originator, shari’ah compliance, investor rights to the assets in the event of dissolution and the valuation of the assets used to underwrite the sukuk; in the case of the Golden Belt sukuk, 40 per cent of the value of the capital raised. However, even if the sukuk had been better structured, the default would have still occurred, given the vulnerability of the Saad Group to the spin-off effects of the global financial crisis for the Gulf. The Saad Group was already highly leveraged before the crisis, and taking on additional debt, even if Islamic, was always going to be risky.

As already indicated other sukuk in Saudi Arabia are traded on the Tadawul and regulated by the Capital Markets Authority, which has a good reputation and much knowledge and expertise in Islamic finance. By choosing to issue the sukuk offshore there was less regulatory surveillance, which should have sent a danger warning to the investors. Furthermore all sukuk issuance in Saudi Arabia today is rated, whereas the Golden Belt sukuk was not rated. Only the Caravan sukuk, the first in the Kingdom in 2004, on behalf of Hanco, Saudi Arabia’s leading car rental and vehicle leasing company, was unrated, but it was also offshore. In its case the investors obtained the expected returns and had their capital redeemed in full.

The Golden Belt default has not deterred sukuk investors, with 2012 being a record year for global issuance which exceeded $42 billion. Over half of the issuance was in Malaysia which has an active sukuk market that is well regulated by the Securities Commission. In Malaysia there have been 25 sukuk defaults, but the courts have now extensive experience of dealing with these, and although investors inevitably suffer losses, if asset values permit they receive reasonable recompense. All Malaysian sukuk are rated, as this is a regulatory requirement, but this can be by one of the two local rating agencies, Rating Agency of Malaysia (RAM) and the Malaysian Rating Corporation (MARC). Their rating is much less expensive than those from international agencies such as Standard and Poor’s, so even small value sukuk can be viably rated.


Lessons from the debacle

Investors in sukuk should seek advice on the credit worthiness of the originator and not simply rely on the reputation of the investment banks involved in the arranging, especially as many, in any case, have a rather tarnished reputation in the aftermath of the financial crisis. The launch of the Golden Belt sukuk preceded the crisis and was in an era when standards of credit risk appraisal were more relaxed.

Sukuk investors are entitled to accurate information on the underlying asset, but they should be aware that the main purpose of the asset backing is to ensure Shari’ah compliance, not to make the sukuk senior debt. Although investors, or their legal representatives, should always consider worse case scenarios, and have a view on the worth of the underlying assets, when a default occurs there will inevitably be significant losses.

Saudi Arabia is a well regulated environment for sukuk issuance, so the difficulties with the Golden Belt sukuk should not deter future investors. Bankruptcy is a controversial issue in the Kingdom however because of Shari’ah concerns about debtors being exploited. Therefore in practice most commercial disputes are handled by the Board of Grievances which aims to bring about “amicable conciliation” between the parties. If international hedge funds aggressively pursue sukuk defaulters in most jurisdictions in the Islamic World they are likely to be disappointed with the outcome, and this will certainly be the case in Saudi Arabia.


Further reading

Hafizi Ab Majid, Shahida Shahimi and Mohd Hafizuddin Syah Bangaan Abdullah, Sukuk Defaults and its Implications: A Case Study of the Malaysian Capital Market, Paper presented at the 8th Annual Conference on Islamic Economics and Finance, Doha, December 2011. (


Vijay Rabindranath, An Overview – Sukuk Market in Saudi Arabia, Watheeqa Capital Company, Kuwair, 21st March 2010. (


Rodney Wilson, Legal, Regulatory and Governance Issues in Islamic Finance, Edinburgh and Columbia University Presses, 2012. UK, EU readers:, North America readers