By Simon Howard
Islamic financing emphasises the importance of a genuine assumption of risk on the part of the financier to justify reward and a mudarabah is one of the legal forms used in Islamic financing to establish a risk-sharing venture. It is possible to establish limited partnerships in Jersey (JLP) that qualify simultaneously as mudarabah in accordance with the standards defined by Shariah Standard No 13 of the Accounting and Auditing Organisation for Islamic Institutions.
Islamic origins of the limited partnership concept
Structuring a JLP so as to qualify simultaneously with the requirements for a mudarabah reflects the closeness of these two concepts; indeed it points towards the almost certain fact that the commandite or limited partnership concept that has been developed across Europe since medieval times has its origins in the mudarabah. It was copied and developed as part of European commerce in the Middle Ages by Italian merchant venturers conducting business with Moslem traders in the Adriatic and Eastern Mediterranean. So, by setting up JLPs that also qualify as mudarabah, we are returning to the origins of the silent partnership concept as introduced into Western Europe along the ancient Islamic trade routes.
Under these arrangements the General Partner of the JLP acts as the mudarib and the Limited Partner as the rab al-maal. The General Partner provides labour and skill to the JLP and is responsible for managing the affairs of the partnership, while the Limited Partner provides the working or investment capital.
Care needs to be exercised in adapting the partnership agreement so that it meets the express requirements for a mudarabah. The limited partnership agreement also needs to comply with the general tenets and principles of Sharia, including certainty of contract and fairness in dealings. The partnership activities need to exhibit the positive application of capital through transactions that are not associated with speculation or gambling. Investments in haram or prohibited activities, such as in pork, weaponry, alcohol or casinos, will not be permitted due to their detrimental social effects.
Use of JLP as a mudarabah
Jersey limited partnerships structured to comply with the requirements of mudarabah can be used for permitted activities, including passive investment or active trading on a profit sharing basis. They are flexible contract-based schemes that have the added advantage of tax transparency and a high degree of privacy for the partners' risk/reward participation rights, elements that lie at the heart of the partnership agreement.
They are a good example of the flexible structuring solutions that Jersey is able to offer, allowing the Occidental and Islamic traditions to combine in a fully compliant way to achieve an investment or business objective.
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