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National and Global Islamic Financial Architecture:

Problems and Possible Solutions for the OIC Member Countries

46

face and how these are mitigated in case the issuer becomes insolvent. Certain specific issues

arise in Islamic financial transactions due to compliance with Shariah. For example, while in an

asset-backed sukuk investors have a claim on the assets underlying the issuance, an asset-

based sukuk meanwhile has the investors having a claim on the issuer with no recourse to the

assets. Similarly, the rights of profit-sharing investment account holders need to be clearly

defined in case a bank declares bankruptcy.

3.2. Regulation and Supervision Framework

In a well-functioning financial system, the supervisors and regulators act on behalf of the

society at large and protect the interests of the different stakeholders and ensure stability in

the financial system as a whole (Pistor and Xu 2003). A proactive enabling regulatory and

supervision framework will ensure the application of rules and laws, protection of property

rights, the stability of the financial sector, consumer protection, and the fairness and efficiency

of markets (see Llewellyn 2006 and GOT 2008). The complexity and dynamism of modern

financial products and markets make regulation itself complex and multi-dimensional (Black

2012). If not approached correctly, inappropriate regulations can create risks and

vulnerabilities that can potentially lead to harmful and costly economic downturns.

Regulatory perimeters determine the boundaries of the regulated and unregulated activities

and institutions. Determining the regulatory perimeters will depend on various factors. Among

others, the degree of systemic risks and customer sophistication will determine the level of

regulatory intervention. The tools and goals of regulation include micro-prudential regulation

to promote the safety of individual financial institutions, macro-prudential regulation and

supervision for the stability of the financial sector, conduct of business regulation to establish

rules for appropriate business behavior and practices, product regulation to limit specific

harmful products, consumer protection regulation to protect consumers, and indirect

regulation to limit exposures of institutions to certain activities and to enhance the fairness

and efficiency of markets (BOE 2012; GOT 2008; Llewellyn 2006). Other regulatory functions

relate to providing safety net arrangements (deposit insurance and lender of last resort) and

ensuring the integrity of the payments system and markets. The regulators must also have

measures in place to handle emergency situations such as handling insolvent institutions and

resolving crises.

There are various models of regulatory frameworks for the financial sector. While in some

countries separate bodies regulate the banking, insurance and the securities markets, in others

these sectors are regulated by a single body. The GFC showed that, if legal and regulatory

regimes fail to adjust to the changing situations, they become ineffective in mitigating the new

risks that can lead to costly systemic problems. Furthermore, there can also be a separation of

the prudential regulation and supervision from a conduct of business and consumer protection

regulation under the ‘twin peaks’ approach (Crockett 2009: 19).

Various international bodies have come up with the various principles and standards of

regulations and supervision of different segments of the financial sector. The Basel Committee

for Banking Supervision (BCBS) is responsible for developing international regulatory

standards for the banking sector. It came up with the Basel III standards to strengthen the

regulatory regimes for the banking sector after the GFC. The new standards bolster Basel II by

enhancing the quality and quantity of capital and introducing risk coverage of the

systematically important financial institutions. It also enhances the supervisory review process