Eric Meyer walked out of a
London office two weeks ago, a sheaf of signed fatwas in hand.
Hoping to cash in on the
trend in financial products aimed at Muslims, the head of the New Canaan,
Conn.-based Meyer Capital Partners started calling Islamic law scholars a year
ago. His pitch: hedge funds that Muslims could invest in without violating
strict tenets of Islamic law that prohibit financial speculation and the earning
of interest.
The fatwas -- or Islamic
legal opinions -- contained the blessings of three Islamic scholars, all of whom
had reviewed Meyer's proposed fund and deemed it compliant with Shariah, or
Islamic law.
Meyer also had formal
assurances from a team of King & Spalding lawyers that his plans adhered to
secular law in the United States as well. "I was on cloud nine," he
says. "The lawyers from King & Spalding really did a yeoman's job of
bridging the two worlds."
King & Spalding isn't the
only U.S. firm collaborating with Islamic scholars. Gibson, Dunn & Crutcher;
Bryan Cave; and Wiley Rein & Fielding are some of the firms getting a piece
of the Islamic finance pie. Islamic finance was born in the 1970s, after a swell
in oil revenues and the resurgence of fundamentalist Muslim movements. The
growth meant potential new legal clients, and so American and London lawyers
started specializing in investments and financing structures that satisfy
Shariah requirements.
While experts differ over
exactly how much investment money Muslims around the world have at their
disposal, there's little doubt it's a big number, and growing fast. It has taken
time and financial wizardry to get some of that capital into the Western market.
And paving the way has been a fleet of lawyers who are as comfortable talking
about ijarah, or lease deals that comply with Shariah, as they are parsing
conventional Western contracts. ("What
Is Shariah?".)
"Ten years ago, there
were four or five Western lawyers with a little bit of experience in Islamic
law," says Yusuf DeLorenzo, one of the scholars who helped vet Meyer's new
Shariah-compliant hedge fund. Now nearly a dozen firms have Islamic finance
working groups or lawyers who specialize in the practice area.
"It's become a very,
very big business," says DeLorenzo, a Northern Virginia- and London-based
consultant who helped set up the first Dow Jones Islamic Markets Index five
years ago.
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REDEFINING THE ART OF THE
DEAL
Shariah is based on the
Quran, the teachings of Muhammad, and the work of Muslim scholars during the
first two centuries of Islam. Its principles prohibit Muslims from participating
in some of the mainstays of Western business, such as earning or paying interest
and engaging in speculation. However, Shariah does permit other forms of
investment, such as ijarah wa iqtina (lease purchase financing), mudaraba (trust
finance), and musharaka (equity participation).
James Phipps, 38, got
interested in Islamic law and culture while serving as an Army interrogator
during the first Gulf War. He then spent time in Riyadh, Saudi Arabia, studying
at the King Faisal Center for Islamic Studies and then working in an outpost of
Jones Day. Now an associate in Wiley Rein's international business ventures
practice, Phipps helps craft joint venture agreements between Muslim and
non-Muslim businesses.
Deals are sometimes canceled
when Muslim and secular parties can't reach a compromise. But more often the
parties make concessions, according to Phipps. "The Muslims that I know are
pretty practical people who want to realize the best return they can on their
money and do what needs to be done," he says. And a handful of Shariah
jurists who specialize in finance are more than willing to level the path to
Western markets for investment-savvy Muslims.
Says DeLorenzo: "As a
Shariah scholar, I feel more than anything a consumer advocate. I ensure that
the service or product is one that a Muslim investor can use with a clear
conscience -- that the returns will be halal."
Phipps worked on, for
example, a $300 million-plus transaction for a communications network in the
Middle East. The buyer, a country with a largely Muslim population, opted for
what's known as a build-own-operate-transfer model. A BOOT is a means of
financing large-scale infrastructure development used primarily by governments.
Under this model, private
sector investors provide the capital for construction, build, and operate the
infrastructure for an agreed period of time and then transfer ownership back to
the government. The model is conventional in Western terms, but also works as an
Islamic finance tool because it doesn't require the buyer to make or receive an
interest payment.
"From the buyer's
vantage, BOOT doesn't cause any trouble in terms of Islamic law," Phipps
says. "And the deal itself didn't strap the non-Islamic [seller] to doing
business itself in the Islamic way."
Shariah compliance in
government procurement can present a stumbling block, Phipps says. One such deal
fell through because the non-Muslim seller in a large project for a Gulf-state
government was not willing to forgo interest on late payments, having already
agreed to a discounted selling price. There are ways of addressing late payment,
Phipps notes, but they often mean that the Muslim party ultimately pays a higher
purchase price.