伊斯兰的银行产品-受限制的”Mudarabah Muqayyadah“

原文始发于微信公众号(瑞中法协):伊斯兰的银行产品-受限制的”Mudarabah Muqayyadah“



摘要:尽管伊斯兰商业银行拥有许多与传统银行提供的产品类似的产品,但这两个实体在概念上有所不同。一个主要区别是,传统银行通过收取服务的利息和费用来获利,而伊斯兰银行则通过分担利润和亏损,交易,租赁,对提供的服务收取费用以及使用其他伊斯兰教义的交换合同来赚钱。伊斯兰融资有两个基本类别:1)“基于债务的合同/基于债务的工具”,它给出固定的收益;2)“损益分担合同”,它给出非固定的收益。本文介绍了Mudarabah合同——一项非固定的基于收益的交易。投资者每月收到的回报可能不相同,因为这取决于业务(伊斯兰教义的交换合同)活动产生的利润或收入。


本文由Mirza A. Karim(印尼KarimSyah律师事务所合伙人)为瑞中法律评论投稿。



AN ISLAMIC BANKING PRODUCT: RESTRICTED INVESTMENT ACCOUNTS 

(Mudarabah Muqayyadah)


Although Islamic commercial banks have many products similar to those offered by conventional banks, the two entities differ conceptually. One key difference is that conventional banks make their profits by charging interest and fees for services, whereas Islamic banks earn their money by profit and loss sharing, trading, leasing, charging fees for services rendered, and using other Sharia contracts of exchange. Unlike conventional banks, Islamic banks can thus offer various types of products. One of such products is the Restricted Investment Account or “Mudarabah Muqayyadah”. 


A Mudarabah is an Investment partnership, whereby the investor (the Sahibul Mal) provides capital to another party/entrepreneur (the Mudarib) to undertake a business/ investment activity. While profits are shared on a pre-agreed ratio, any loss of investment is born by the investor only. The Mudarib loses its share of the expected income, unless the Mudarib has been guilty of negligence or misconduct in its management, in which case he/she shall be liable for the losses. Misconduct would include fraud or other illegal conduct, and also willful investment of funds in breach of Sharia prohibitions, or in breach of the investment mandate stated in the underlying contract. Negligence would include a gross failure of due diligence, resulting in losses.


There are two types of Mudarabah transaction: 1) Mudarabah Mutlaqah and 2) Mudarabah Muqayyadah. In a Mudarabah Mutlaqah, the investor authorizes the entrepreneur to run the business without restrictions in terms of type of business activity, products, location of the business activity et cetera, as long as such business activity does not violate the principles the Islamic Law (Sharia). In a Mudarabah Muqayyadah, the investor stipulates certain restrictions to the entrepreneur in running the business activity; for example, the business activity shall be in the field of agriculture; or gold mining; or restaurants; or other business specified and agreed by the investor. 

The Mudarabah Muqayyadah transaction may be offered by an Islamic bank to bring together or channel the investor, who is willing to invest his/her funds, with an entrepreneur, who needs funds for financing his/her business activity. The bank will act as the fund manager, investment manager or agent. As a fund manager/ investment manager/agent, the bank will charge a service fee, as agreed by the parties. 


There are two types of Mudarabah Muqayyadah: 1) Mudarabah Muqayyadah where the Islamic bank acts as a channeling agent and 2) Mudarabah Muqayyadah where the Islamic bank act as an executing agent. A Mudarabah Muqayyadah where the bank acts as a channeling agent will not be booked on the balance sheet of the bank (“off-balance-sheet”) and the bank shall not be entitled to share in the profits. On the other hand, in a Mudarabah Muqayyadah where the bank act as an executing agent, the bank will be entitled to a share of the profits and a service fee (if agreed in the contract); and it will be booked on the balance sheet of the bank (“on-balance-sheet”).   

The Mudarabah Muqayyadah can be done through one of several schemes: 1) one to one; 2) one to many; 3) many to one; 4) many to many;  which mean, respectively: 1) one investor to finance one entrepreneur for a single specific business activity; 2) one investor to finance more than one entrepreneur for more than one specific business activities; 3) more than one investor to finance one entrepreneur for a single business activity; 4) more than one investor to finance more than one entrepreneur.


The product of Mudarabah Muqayyadah may increase the Financing to Deposit Ratio of the bank and minimize the mismatch between funding and financing activities. Mudabarah Muqayyadah also allows investors to choose the entrepreneur and type of business activity to be financed by their funds. Mudarabah Muqayyadah provides transparency to the investment/financing asset’s performance where the administration and monitoring activities are handled by the bank. However, the investor is not allowed to withdraw his/her funds prior the maturity of the investment/financing. 


There are two basic categories of Islamic financing: 1) “debt-based contracts/ debt-based instruments”, which give a fixed return, and 2) “profit and loss sharing contracts”, which give a non-fixed return. The investor should realize that the Mudarabah contract is a non-fixed return basis transaction. The monthly return received by the investor may not be the same amount every month, since it will depend upon the profit or revenue derived from the business activity.  


Presently, the use of Mudarabah Muqayyadah contracts by Islamic banks in Indonesia constitute a small portion of the total financing contracts. In its road-map of Islamic banking, the Financial Service Authority (“OJK”) encourages Islamic banks to improve product diversity, among other means by launching profit-loss sharing based contracts, such as Mudarabah Muqayyadah and other profit-loss sharing based contracts. In connection with that, OJK has launched books on the profit-loss sharing based contracts, i.e.: Book on Standard of Mudarabah and Book on Standard of Musharakah and Musharakah Mutanaqisah as guidance for Islamic banks to draft such contracts.


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