SUKUK MARKET AND REGULATIONS IN PAKISTAN

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1 SUKUK MARKET AND REGULATIONS IN PAKISTAN Introduction There has been a concerted push by regulatory authorities in Pakistan in the last few years to promote the Islamic finance industry. Recently, the Securities and Exchange Commission of Pakistan (SECP) issued regulations on the issuance of privately placed sukuk. Corporate sukuk are an essential part of Islamic debt capital markets, which provide an alternative to corporates to borrow funds without having to negotiate lengthy loan agreements with banks. Despite the recent uptake in activity, the sukuk market in Pakistan needs further development in terms of legislative framework, sukuk structuring and legal documentation to reach its full potential. As the sukuk market in Pakistan develops in line with best practices adopted elsewhere, shariah conscious corporates will have access to an alternate source of financing, while foreign investors will be interested in the potentially higher yields offered in the Pakistani market. Increased corporate sukuk issuances will provide additional avenues for Islamic banks to invest their excess liquidity and fuel the growth of the industry as a whole. Haroon Baryalay Partner Axis Law Chambers, Islamabad Tel: +92 (0) haroon.baryalay@axislaw.pk 5-S Gulberg II, Lahore, Pakistan 108-A, Main Services Society Road, S.C.H.S, E-11/2, Islamabad, Pakistan Banking and Finance This article is sent to you for information purposes only. The information contained, or the opinions expressed herein do not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal counsel. We reserve the right to change any views expressed in this article without prior notice and shall have no obligation to inform you of such change. Should you require any legal advice on any matter contained in this article, please contact us on info@axislaw.pk. Should you have any comments on the contents of this article, please contact us on publications@axislaw.pk

2 Pakistan s Sukuk Market Over the past decade, a total of over 100 sukuk have been issued in Pakistan having a total value of around PKR 1.16 trillion. Government sector issuances have dominated the sukuk market, with approximately PKR 865 billion being issued directly by the Government of Pakistan and around PKR 150 billion by public sector entities. Over the same period, corporate sukuk issues stood at around PKR 170 billion. The Government of Pakistan tapped the international capital markets thrice during this time, initially in 2005 with a USD 600 million sukuk, followed by two issuances of USD 1 billion each in 2014 and In the year 2016, a total of 9 domestic sukuk were issued with a total value of approximately PKR 320 billion (USD 3 billion). Of these, around PKR 195 billion were Government ijara sukuk and PKR 100 billion were issued by public-sector entities (primarily the PKR 100 billion Neelum Jhelum Sukuk). New corporate sukuk issuances stood at around PKR 26 billion. In the recent past, notable sukuk within the corporate sector include the PKR 22 billion issue by K-Electric in , the PKR 10.5 billion issue by Fatima Fertilizer in 2016, the PKR 7 billion issue by Meezan Bank in 2016 and the PKR 5 billion issue by Engro Fertilizer in Banks such as Al Baraka, Meezan and Dubai Islamic Bank have issued sukuk to bolster their Tier 2 capital to comply with Basel III capital adequacy requirements. In comparison with global issuances, the overall volume and size of the domestic sukuk market in Pakistan is relatively small; the Pakistani sukuk market was approximately 4% of global sukuk issuances in 2016, which stood at USD 75 billion. Malaysia, the global sukuk market leader, issued sukuk worth approximately USD 35 billion in 2016, accounting for over 45% of the sukuk issued globally that year. Indonesia and the UAE were the second highest issuers with issuances of approximately USD 7 billion each. Legislative Framework The principal laws governing the issuance of sukuk in Pakistan are: 1. Companies Act 2017 (the Companies Act ) 2. Trust Act Companies (Asset Backed Securitization) Rules 1999 (the Securitization Rules ) 4. Debt Securities Trustee Regulations Sukuk (Privately Placed) Regulations 2017 (the Sukuk Regulations )

3 The SECP had earlier issued the Issue of Sukuk Regulations 2015 (the 2015 Sukuk Regulations ), which have now been replaced by the Sukuk Regulations. In July 2013, the State Bank issued guidelines for the adoption of AAOIFI Shariah Standard No. 17 pertaining to investment sukuk (the SBP Directive ). Surprisingly, despite wanting to develop the sukuk market for several years, the Government amended the Income Tax Ordinance 2001 only recently in 2016 to give sukuk tax neutrality in comparison with other corporate debt instruments such as TFCs. Redeemable Capital or Trust Certificates The nature of sukuk seems conflicted under Pakistani laws and regulations. The 2015 Sukuk Regulations 1 adopted the basic AAOIFI definition, but made some significant changes. The SBP Directive, on the other hand, adopted the AAOIFI standard, thereby incorporating the definition provided therein. The AAOIFI standards define sukuk as certificates of equal value representing undivided shares in the ownership of tangible assets, usufructs and services or (in the ownership of) the assets of particular projects or special investment activity. The definition of sukuk under the 2015 Sukuk Regulations, by deeming sukuk as investment in the capital of the issuer, was potentially incompatible with AAOIFI standards. The new Sukuk Regulations have removed this discrepancy, and the conflict with the SBP Directive. However, some definitional issues still remain. Sukuk are issued by Pakistani companies under Section 66 of the Companies Act, which deals with the issuance of redeemable capital. The Companies Act also defines sukuk as representing redeemable investment in certificates of equal nominal value representing undivided shares in ownership of tangible assets of a particular project or specific investment activity, usufruct and services. Such redeemable capital is supposed to evidence investment of the holder in the capital of the company, other than share capital. The above inconsistency arises from the fact that the legislative framework in Pakistan is undecided about the very nature of these instruments. The SBP Directive, by adopting the AAOIFI standard, implies that sukuk are instruments representing an interest in underlying assets etc., which can be issued as trust certificates. The Companies Act considers them to be 1 The 2015 Sukuk Regulations had defined sukuk as an instrument of equal value representing investment of the Sukuk holders in the capital of the issuer to the extent of undivided share in ownership of the identified tangible assets, usufruct and services or in the ownership of the assets of particular projects or special investment activity based on characteristics and structures including participatory mode approved by the Shariah Advisor (the underlined words having been added to the AAOIFI definition).

4 redeemable investments / interest 2 in the capital of the issuer. Although the SECP has adopted, under the Sukuk Regulations, the definition of sukuk issued by AAOIFI, the provisions of the Companies Act are not entirely consistent with this revised definition and require revision. Sukuk as Securitization Elsewhere, sukuk are typically structured as securitizations whereby specific identifiable assets are transferred to a special purpose vehicle (an SPV ) (usually incorporated offshore in a low tax jurisdiction if the issuance is being made in a jurisdiction that does not recognize trusts), which issues sukuk certificates, constituted as trust certificates, to investors and acts as the trustee. Since an SPV does not have the ability to perform the functions and fulfill the obligations of a trustee, this role is delegated to a professional trustee services company. Corporate sukuk issued in Pakistan are not structured as securitizations, and do not have a single purpose SPV acting as issuer and trustee. The Sukuk Regulations provide that sukuk may be issued by any company, body corporate or SPV. In Pakistani corporate sukuk issuances, as noted above, the issuer is usually the originator itself. The debt securities trustee performs the role of a trustee and delegate (a debt securities trustee is a financial institution licensed for this purpose by the SECP). A structural problem with all domestic corporate sukuk issuances is the disconnect between the declaration of trust and the issuance of the sukuk certificates. In all domestic issuances, even though the trust is declared by the trustee (being the licensed debt securities trustee), sukuk are issued by the originator, similar to a bond issue. This disconnect links back to the definition of sukuk, which are considered redeemable instruments in the capital of the issuer instead of being constituted as trust certificates under the trust deed. In some domestic sukuk issuances, the sukuk certificates purport to represent an interest in the trust assets (hence they appear to be constituted as trust certificates), yet they are issued by the originator and not the trustee. Simultaneously with the sukuk issuance, the issuer also enters into shariah compliant financing documentation with the trustee, whether to create a musharaka, mudaraba or extend other permissible form of finance. As such, the issuance of sukuk by the originator as redeemable capital cannot possibly represent the interest of the investors in the underlying assets or the underlying Islamic financing transaction. 2 The use of the words redeemable investment calls into question the ability of banks, for example, to issue perpetual sukuk as additional tier 1 capital.

5 Instead it simply creates a direct debt obligation of the issuer towards the investors. The direct issuance of sukuk by originators as redeemable capital not only raises potential shariah compliance issues (since its structure is indistinguishable from a bond or TFC), the Islamic financing arrangement between the issuer and trustee appears to have no link to the sukuk certificates. The recent Sukuk Regulations do contemplate issuance of sukuk through an SPV, and have now made it mandatory for issuers and shariah advisors to give reasons when an SPV structure is not used. The SECP, it appears, is attempting to structure sukuk as securitizations in Pakistan, in line with other jurisdictions. However, the regulatory framework requires further changes to enable this to happen. Under the Sukuk Regulations, an SPV means a public limited company or body corporate registered with the SECP under the Securitization Rules. The Securitization Rules require the SPV to be a public limited company with a minimum share capital of PKR 100,000 or as a trust. An SPV used in sukuk issuances outside Pakistan is usually established with nominal capital as an orphan entity, which is de-registered once the sukuk are redeemed. A public limited company with a share capital and shareholders is not conducive towards sukuk issuances, or more generally, for securitizations. Furthermore, the Securitization Rules provide that the SPV may be de-registered if it fails to offer securities to the public within the time prescribed by the SECP. There is therefore an inconsistency between the Securitization Rules, which contemplate the establishment of an SPV for issuing securities to the public, and the Sukuk Regulations, which are aimed at privately placed sukuk. The SECP will need to amend the Securitization Rules to allow SPVs registered under these rules to be used in private placements. Furthermore, it should be permissible to incorporate SPVs with nominal capital as orphan entities for bankruptcy remoteness. Other Shariah Compliance Issues It is possible to structure sukuk in Pakistan under any of the permissible Islamic modes of finance, including murabaha, ijara, musharaka, mudaraba, salam or istisna. Most sukuk issuances based on mudaraba and musharaka structures in Pakistan tend to be backed by fixed price guarantees issued by the originator. The use of such undertakings, as is well known, was deemed non-shariah compliant by AAOIFI about a decade ago, resulting in mudaraba and musharaka sukuk going out of favour. Where these structures were used, fixed price purchase undertakings were replaced by undertakings to purchase at market price. Shariah scholars in Pakistan continue to allow fixed price purchase undertakings, which may not be acceptable to investors

6 and Shariah scholars in other jurisdictions, especially the Middle East. to invest in domestic sukuk that are based on familiar and well-established structures. Typically, sukuk are not secured by additional charges over the underlying assets since the investors are supposed to be owners of these assets. Instead other credit enhancement features are put in place. Unlike jurisdictions in the Middle East, shariah scholars in Pakistan permit the use of encumbered assets for sukuk issuances. Not only is the legality of such asset transfers doubtful, its shariah compliance and the value attributed to the assets is also open to question. Conclusion Although the regulatory environment for domestic sukuk issuances in Pakistan has improved in recent years, further work remains to be done to remove inconsistencies in the regulations. Regulators would be well advised to amend applicable laws in line with international practices so sukuk are issued as trust certificates by way of securitizations. The existing documentation is not only open to criticism from a shariah compliance perspective, it also raises potential legal enforceability concerns. Furthermore, by bringing sukuk structures and documentation in line with international practices, local corporates may also be able to attract investment from overseas, as foreign lenders are more likely