Islamic finance in Bermuda - Bermuda: Islamic finance hub in the western hemisphere
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www.pwc.com/bermuda/islamicfinance Islamic finance in Bermuda Bermuda: Islamic finance hub in the western hemisphere
Contents Page 1. Bermuda: Islamic finance hub in the western hemisphere 2 2. Why Bermuda 3 3. Retakaful and captive Takaful 4 4. Shariah-compliant funds 6 5. Sukuk and Shariah-compliant structured products 8 6. Private wealth management 10 7. Work with you 11 8. Contacts 12 Note The term ‘Shariah-compliant’ in this document refers to financial products and structures that are compliant with Islamic financial principles. PwC 1
Bermuda: Islamic finance hub in the western hemisphere The Bermuda Government welcomes standards and ensures high standards Islamic finance. of behaviour, while fostering an environment that remains attractive to The Bermuda Government is actively business and enables them to grow and engaged in promoting the development develop successfully. of Islamic finance in Bermuda and ways to support its growth. These Bermuda’s legislation is robust, but initiatives build on the existing flexible enough to accommodate relationship between Bermuda and Islamic financial products and the Gulf Cooperation Council (GCC). structures. Investors from the GCC already invest heavily in Bermuda-based investment funds, including Shariah-compliant funds, and have significant interests in the local hospitality industry. Financing vehicles originating from the GCC use Bermuda exempt companies and trusts in Sukuk, investment holding and wealth management structures. Bermuda is attractive as an international finance jurisdiction because it seeks to strike the right balance between maintaining an effective regulatory framework that meets relevant international 2 Bermuda: Islamic finance hub in the western hemisphere
Why Bermuda Recognition - Bermuda is a transparent and very well-regulated jurisdiction. Bermuda has executed over 20 Tax Information Exchange Agreements and has received international recognition for its successful efforts to get onto the Organization of Economic Cooperation and Development (OECD) “white list”. Bermuda has been elected Joint Vice- Chairman of the Steering Group of the OECD’s Global Forum for Economic Cooperation and Development, and hosted the 2011 Global Forum Plenary. Bermuda’s financial sector regulator, the Bermuda Monetary Authority (BMA), adopts a principle-based regulatory regime. The BMA has been appointed a member of the Executive Committee of the International Association of Insurance Supervisors. Political stability – Bermuda is a self- governing British Overseas Territory; the legal system is based on English common law, the doctrines of equity and Bermuda statute law dating from 1612. over its onshore competitors. As more innovative and complex Islamic financial Experience and expertise – Bermuda products are developed by the global has unrivalled talent and intellectual market, Bermuda offers promoters the capital in key sectors, including advantages of effective tax structuring insurance, investment funds and financial and speed to market. services. Bermuda has signed a double tax Infrastructure – A substantial agreement with the Kingdom of Bahrain infrastructure of IT, high quality transport which provides structuring opportunities links, and professional services have for investors accessing the GCC region. been developed to support the financial industry in Bermuda. Accessibility – Bermuda’s situation geographically (with easy access to and Economic stability – Over the past from New York and London) makes it an decade, Bermuda’s economic growth important hub for the global insurance/ has surpassed that of the US and UK; reinsurance and asset management Bermuda enjoys a high standard of living industries. with all the amenities and conveniences of an advanced economy. Modern legislation – Bermuda has modern corporate and trust laws Potential tax benefits – Bermuda’s tax which are attractive for Islamic finance neutrality is a competitive advantage structures. PwC 3
operator provides an interest-free loan to Retakaful and captive Takaful the policyholders’ fund that is repaid out of future surplus in the fund. The diagram Innovation, entrepreneurialism and the Takaful and Retakaful arrangements. in figure 2 shows how a Wakala model leadership of Bermuda insurers with the Specific Retakaful and captive Takaful might work in Bermuda. cooperation of the Bermuda Government requirements are addressed in the has fostered a highly successful entity’s business plan and constitutional The hybrid model is a mix of the reinsurance industry. Today, Bermuda is documents. The most widely used Mudharaba and Wakala models. In this home to more than 50 major international Takaful/Retakaful models which are model, the operator receives a Wakala insurance and reinsurance firms and Mudharaba, Wakala and the hybrid fee for managing the insurance operation there are 1200 international insurers and model can be structured under Bermuda of the policyholders’ fund as well as reinsurers licensed here. laws. a Mudharaba fee for managing the investment fund. The diagram in figure 3 As the largest offshore reinsurance and Mudharaba is known as the profit-sharing shows how a hybrid model might work in insurance domicile, Bermuda offers a model. The shareholders share in the Bermuda. range of opportunities for Retakaful profit or loss with the policyholders. (including retrotakaful) operators to The diagram in figure 1 shows how In the Wakala Waqf model the assist in the growth and expansion of a Mudharaba model might work in policyholders’ fund is replaced by a trust, the global Takaful market. A number Bermuda. which is the Waqf fund. Part of the capital of Bermuda-based insurance and of the shareholders’ fund is used to create reinsurance companies as well as global this trust, which is considered charitable In the Wakala model, the operator acts insurance firms with a Bermuda presence under local law. as an agent of the participants. In this are establishing relationships with GCC model, shareholders are paid a pre- countries. agreed proportion of the contributions paid by the policyholders in return for Bermuda is also the world’s leading running the insurance operations of the captive insurance market, with over 900 business on behalf of the policyholders. If captive insurers, making it an attractive the policyholders’ fund makes a loss, the center to service the relatively untapped captive Takaful market. Figure 1: Mudharaba model Structuring Retakaful and captive Takaful in Bermuda Operating Participants expenses Balance of surplus after paying portion to shareholders’ fund The captive insurance and reinsurance industry is regulated by the BMA. The Contributions Policy Insurance Act provides the statutory benefits basis for regulating insurance and Islamic Policyholders’ Reinsurance/ Shareholders’ reinsurance in Bermuda, dealing with the investments funds funds retakaful establishment, operation and regulation of captive insurance and reinsurance Reserves companies. The Insurance Act also provides for the licensing and supervision Investment of Bermuda insurance managers. profit Interest-free loan if there is a deficit The same principles and requirements under the Bermuda Insurance Act Surplus/ apply to Retakaful and captive Takaful. Base management fee plus percentage share of any surplus (deficit) Bermuda law provides significant flexibility with respect to corporate Source: PwC structures and governance, which allow for establishing and operating of captive 4 Bermuda: Islamic finance hub in the western hemisphere
Bermuda: Unique value • A Bermuda Segregated Accounts • The Companies Act 1981 makes proposition for structuring Company (SAC) is a useful Retakaful provision for mutual companies which Retakaful and captive Takaful structuring tool for ring-fencing the is beneficial for structuring Bermuda shareholders’ fund from the funds Retakaful by virtue of their mutuality. • Bermuda’s strong reinsurance and belonging to the operator. A SAC could captive industry, well regarded be used wholly for Retakaful business, • A number of Bermuda reinsurers and regulatory environment, speed to or by a conventional reinsurer who financial institutions are governed market and talent pool makes it a wishes to operate a Retakaful window by private act. It is therefore possible natural home for Retakaful and captive without having to incorporate and for Retakaful and captive Takaful to Takaful. license a new entity. petition the Bermuda Parliament for private bespoke legislation to give • Rapid expansion in the global Takaful enhanced flexibility. market and the limited availability of Retakaful capacity make it very Figure 2: Wakala model attractive for reinsurance companies in Operating Bermuda to develop Retakaful models. Participants expenses Wakala Fee (percentage of contributions) • Bermuda’s established reinsurance companies have access to significant Contributions Policy capital resources and are at the leading benefits edge of the conventional reinsurance Islamic Policyholders’ Reinsurance/ Shareholders’ 100% of any surplus industry. There are clear synergies investments funds retakaful funds to develop partnerships between Bermuda’s conventional reinsurance Reserves operators and global Retakaful operators which have the requisite Investment Interest-free loan expertise and market knowledge. profit if there is a deficit • Either a fully-fledged Retakaful company or a Retakaful unit of a Surplus/ conventional reinsurer are attractive (deficit) options in Bermuda. Source: PwC • Bermuda offers opportunities to develop Retakaful for a nascent US Figure 3: Hybrid model Takaful market. Operating Participants expenses • Bermuda as the world’s leading Wakala Fee (percentage domicile for captives provides of contributions) opportunities for GCC corporations to Contributions Policy form Bermuda captive Takaful. benefits Islamic Policyholders’ Reinsurance/ Shareholders’ 100% of any surplus Other key structuring investments funds retakaful funds considerations Reserves • Bermuda insurers are allowed considerable flexibility in their Investment Interest-free loan profit investment policies. This is an if there is a deficit important consideration for Shariah- compliant asset classes. Surplus/ (deficit) Share of investment return paid for managing investment Source: PwC PwC 5
administration professionals. Bermuda Shariah-compliant funds has long recognized the changing needs of investors, including calls for greater transparency and regulatory oversight, Bermuda provides a favourable while maintaining an efficient and environment for the establishment of entrepreneurial environment that allows Shariah-compliant funds given its position funds and fund managers to flourish. as one of the world’s leading jurisdictions for the asset management industry and Bermuda Monetary Authority the Government’s receptive attitude to Guidance Notes on Islamic new entrants to the market. Bermuda Collective Investment Schemes offers an excellent and very stable platform from which fund promoters and The BMA recently published its investment managers seeking to expand Guidance Notes on Islamic Collective their Shariah-compliant product offerings Investment Schemes (‘Guidance Notes’), globally can confidently launch, manage strengthening Bermuda’s case as a and administer such products. favourable domicile for the establishment of Islamic investment funds. The The investment fund industry is regulated Guidance Notes are principle-based, Shariah-compliant by the BMA. The Investment Funds Act non-discriminatory (providing level provides the statutory basis for regulating innovative investment funds in Bermuda, dealing with the playing field with conventional funds), hence adding to Bermuda’s competitive funds and global establishment, operation and regulation advantages by offering flexibility to of investment funds. The Investment investment fund Funds Act also provides for the licensing Islamic investment fund promoters who can confidently structure, manage and platforms and supervision of Bermuda fund administer such funds in Bermuda, administrators. bringing innovative investment products, such as Sukuk funds and ETFs, to the Structures commonly used in the global market. investment fund industry can be created and utilized in Bermuda. Common There are no impediments to authorising structures include: Islamic investment funds in Bermuda under the current framework. The • Exempted companies; Guidance Notes provide clarity on a • Segregated account companies; number of issues which such funds may • Exempted partnerships; and need to consider in complying with the • Unit trusts. existing regulatory framework, such as required disclosures, notification Shariah-compliant fund sponsors benefit of material changes, and the role from the presence in Bermuda of world- and responsibilities of the ‘Shariah class asset management firms, fund Supervisory Board’, an independent administrators and other professionals. governance body to ensure such fund Funds can be listed on the Bermuda Stock products conform to Islamic financial Exchange (BSX), and Bermuda umbrella principles. funds can be created as SACs. Bermuda boasts a wealth of expertise in Structuring Shariah-compliant the area of mutual funds, hedge funds, investment funds in Bermuda private equity funds and real estate funds. Bermuda is home to hundreds of fund Shariah-compliant funds are similar managers, nearly two thousand funds in their set up to conventional funds are registered here, and still thousands and compliance with Islamic financial more administered by its world class fund principles can be viewed very much 6 Bermuda: Islamic finance hub in the western hemisphere
as an overlay, comparable to a fund established with a “socially responsible” investment ethos. The same principles and requirements under the Bermuda Investment Fund Act apply to Shariah- compliant funds. Generally there are no restrictions in the investment objectives under the Bermuda’s Companies Act and Investment Fund Act. The specific Shariah-compliant requirements and restrictions can easily be incorporated into a fund’s offering memorandum/ prospectus. Structuring Shariah-compliant private equity/venture capital, real estate and global infrastructure funds in Bermuda A Shariah-compliant private equity/ Asia regions who are seeking to diversify investment products targeting emerging venture capital, real estate or global their global Islamic investment portfolios markets. To facilitate such cross-border infrastructure fund is typically structured and access US investments can do so investment flows, it is vital to have tax as a limited partnership. Bermuda’s by investing in Shariah-compliant US efficient global fund platforms in a limited partnership rules accommodate securities such as Sukuk, listed securities reputable jurisdiction such as Bermuda both the Mudharaba and Musharakah screened for Shariah-compliance and and benefit from its highly regarded structures. The Bermuda Partnership Act private equity. regulatory environment, high quality does not attempt to regulate the affairs infrastructure, and world-class fund of a partnership to any great extent. Innovative alternative Shariah- administrators and other professionals. The specific requirements of either structure can easily be incorporated into compliant investment funds – Bermuda, as a centre of excellence for the The key benefits of having Bermuda- the partnership agreement. Bermuda alternative fund industry, can assist in based global fund platforms are as structures are also suitable parallel the development of innovative Shariah- follows: vehicles to accommodate both Muslim and non-Muslim investors. compliant alternative investment funds such as hedge funds, exchange traded • They provide access to alternative asset funds and fund of funds, commodities classes in emerging markets. Bermuda: Unique value • They are attractive to US/global ethical funds and Sukuk funds. proposition for structuring investors seeking access to socially- Shariah-compliant funds Global Shariah-compliant fund responsible investments in emerging markets. platforms – US/global investors seeking • They are attractive to US/global Access to US investments - geographic and product diversification Investors such as sovereign wealth investors seeking global Islamic may invest in Sukuk issuances (either investment diversification. funds, institutions and high net worth directly or via Sukuk funds) and other individuals from GCC and South East Bermuda is a leading jurisdiction in innovative investment products focusing on reinsurance risk such as insurance-linked securities, catastrophe bonds, insurance swaps, and weather derivatives PwC 7
finance), Wakala (agency), Ijara wa Iqtina Sukuk and Shariah-compliant (finance lease), Salam (payment for future delivery), Arbun (pre-purchase of structured products right to acquire asset). Bermuda offers administrative and cost The recent credit crisis did much to efficiencies in that issuers may structure strengthen the case for alternative and list Sukuk in a single jurisdiction. investment approaches and ways of raising capital in the global capital Bermuda: Unique value markets. Sukuk is one of the fastest proposition for structuring global emerging alternative instruments and is Sukuk transactions increasingly used by governments and corporations in the GCC and South East Sukuk structured and listed in Bermuda Asia to access global capital markets. are particularly attractive for the Investors invest in Sukuk for their following cross-border transactions: attractive yields and institutions can use Sukuk for liquidity management. The Sukuk market is rapidly permeating the Access to global capital markets global capital markets as many Western jurisdictions are also tapping into it. • European and US-based corporations seeking alternative ways of raising capital globally (mainly from GCC and Structuring global Sukuk South East Asia) may structure and The GE Capital transactions in Bermuda list a Bermuda-based Sukuk. Bermuda corporate and trust vehicles have been Sukuk, offered under Sukuk and other Shariah-compliant trusted by investors and capital markets Regulation S and structured products often involved an globally for many years. offshore structure in the form of a special structured using a purpose vehicle (SPV), which typically • Sukuk issuers from GCC and South Bermuda limited takes the form of an exempted company East Asia seeking to raise capital from in Bermuda under the Companies Act liability exempted 1981. Western economies may structure and list a Bermuda-based Sukuk to company, represents benefit from Bermuda’s reputation as Already recognized as a centre of a significant excellence for the domicile, management, a jurisdiction of choice for structuring cross-border transactions. development for the administration and listing of investment funds and financing structures, Bermuda global Sukuk market is a natural choice as a jurisdiction for Sukuk issuers. The GE Capital Sukuk, offered under Regulation S and structured using a Bermuda limited liability exempted company, represents a significant development for the global Sukuk market. Bermuda SPVs and trusts are attractive for various Shariah-compliant structured products created under common Islamic contracts such as Mudharaba (partnership/ finance trusteeship), Musharaka (joint venture), Ijara (leasing), Murabaha (purchase order), Istisna (manufacturing or project 8 Bermuda: Islamic finance hub in the western hemisphere
Listing of Sukuk on the Bermuda Key benefits of using Bermuda Stock Exchange SPVs for structuring Sukuk BSX with its and other Shariah-compliant innovative and Besides its modern corporate and structured products trust laws, Bermuda also offers listing flexible approach is facilities for Sukuk on the BSX, which has developed into a major offshore • Bermuda offers SPVs that are tax an attractive location efficient, based under common exchange for the listing of international law principles, where the rights of for cross-border securities. The BSX specializes in listing all parties are clearly understood, Sukuk listing and trading capital market instruments recognized and consistently applied. such as stocks, bonds, mutual funds (including hedge fund structures), • The GE Capital Sukuk is proof that insurance-linked products and depository Bermuda’s laws are tried and tested be licensed under Bermuda trust receipt programs. It provides high by rating agencies, regulators and legislation, provided that by the terms regulatory standards, visibility for issuers investors globally for Sukuk structures. of its memorandum of association it is and transparency for investors, which empowered to act as trustee of only a facilitates cross-border flow of capital and • Bermuda-based SPVs and trusts limited number of identifiable trusts. bridges cross-border investment gaps. vehicles are suitable for financing structures for the acquisition of global • Financiers/institutions benefit from The BSX’s fully electronic capabilities portfolios of assets. effective structuring of Shariah- offer attractive opportunities for compliant structured products through Regulation S Sukuk offerings. The BSX • There are no restrictions in the ‘objects’ a combination of Bermuda SPVs and adopts a non-discriminatory, religion of a company under Bermuda company trusts, for example to create ‘off balance neutral regime for Sukuk listing under its law. An entity may apply the principles sheet’ or ‘bankruptcy remoteness’ Specialized Debt listing rules. The BSX is of Islamic finance to its business structures. suitable for the listing of a diverse range dealings to achieve its objects. of Islamic financial products, including • There is no exchange control for investment funds and ETFs. • Bermuda companies may adopt a non-resident undertakings and no secondary name in non-roman script restriction on repatriation of funds. PwC recommends that Sukuk listing is such as Arabic with the approval of the viewed as a four step process: Registrar of Companies. • There is no stamp duty on any instrument affecting or relating to • Listing strategy • Bermuda’s private trust company international businesses in Bermuda. • Filing and communication with the legislation is attractive for Islamic This is a key consideration for global competent authorities finance structures. A private trust Sukuk issuances. • Continuous reporting company is a company with trustee • Coordination of the listing process powers which is not required to Review Guidance on Set up vehicle regulatory & Submit strategy structure comliance file Admission Support continuous reporting & compliance Project management PwC 9
excellent charitable structure for Islamic philanthropy such as Waqf. Bermuda has a pool of talented people and service providers including trust administrators, lawyers and accountants who have expertise in dealing with complex estate planning, providing investment services and day-to- day administration. As a high-end, sophisticated jurisdiction, Bermuda is also an attractive location for family offices, philanthropy and foundations. Bermuda also benefits from the presence of the world’s top investment management firms, as well as large independent hedge fund and private equity fund managers. Asset managers Private wealth management locate their operations in Bermuda because it offers one of the world’s highest standards of living and low taxes Bermuda provides sophisticated solutions together in a prestigious international designed for wealthy individuals and financial centre. Bermuda is a perfect families and their advisers, for example: location for Shariah-compliant asset managers to expand globally, access • Family wealth management- wealth the US market and develop a globally Bermuda is a creation, enhancement, protection and recognized Shariah-compliant asset distribution. management brand. premium private • Family offices or asset managers wealth management seeking a cross border platform The presence of asset managers and complementary to their local providers. a significant number of alternative centre • Investments outside of the Gulf: investment funds domiciled in Bermuda real estate, private equity, financial offer investment opportunities to instruments, foreign direct investments. HNWIs, pension funds, sovereign wealth • Entrepreneurs wanting to funds, financial institutions, Waqf and internationalize their business. endowments. Bermuda-domiciled funds • Philanthropy. and fund managers offer HNWIs and institutions significant choice of tax Bermuda offers various types of trust efficient investment strategies, with structures which can be customized to product and geographical diversification. accommodate varying personal estate planning objectives. Bermuda trusts, Bermuda’s major banking groups and when properly structured, can offer other wealth management firms offer tax-efficient global solutions, whereby advisory and discretionary investment assets are legally entrusted to a politically services, and make available a wide stable environment, with high level range of investment vehicles from around protection and confidentiality. A Bermuda the world, including bonds, equities, foundation is a corporate alternative derivatives, structured products, mutual to the creation of a trust. Aside from funds, and hedge funds. serving family estate planning matters, Bermuda trust or foundation can be an 10 Bermuda: Islamic finance hub in the western hemisphere
assets. As companies start to develop their Work with you fund ranges, PwC can offer staff training on Shariah principles. PwC Bermuda is the leading provider of has carried out work for all elements For administrators, PwC can review the assurance, advisory and tax services to of Takaful/Retakaful business, from existing administration cycle of funds in Bermuda’s banking, asset management, reviewing business plans and helping order to identify gaps and to implement reinsurance and financial services people deal with investors, to financial changes required to be within the scope of industry. We provide audit services to modeling of Takaful business on an IFRS Shariah precepts, covering custody, cash a significant proportion of the leading basis and on an AAOIFI basis. PwC has management, fund accounting, financial insurance and reinsurance companies in helped Takaful/Retakaful businesses reporting, trustee/fiduciary oversight, Bermuda and have ongoing advisory and at all stages of their development; from transfer agency, ancillary services and other relationships with a vast majority helping companies get established to ‘Shariah’ board support. of the remainder. Our asset management reviewing and optimizing their reserving, clients include investment partnerships underwriting and finance processes and Sukuk and trusts, private equity funds, hedge controls and helping CEOs plan their funds, pension funds, treasury operations strategies for growth. PwC has a dedicated, multi-disciplinary and investment managers, advisors, and global team of industry experts, banks. including tax and advisory specialists, who specialize in Sukuk and have the PwC’s global network has a dedicated, knowledge to assist with a variety of multi-disciplinary team of industry areas including structuring, operations, experts, including actuaries, tax and compliance, and tax. advisory specialists, who specialize in Islamic finance. PwC industry experts PwC can support clients throughout have extensive global experience in the Sukuk listing value chain, starting offering assurance and advisory services from guidance on strategy to the final within the Islamic finance industry. PwC admission on the Bermuda Stock bring to the table the global resources Exchange. of one of the world’s largest networks of Islamic finance experts, with centers of excellence in Bermuda, Malaysia, the Middle East and North Africa and Shariah-compliant funds London. PwC has significant experience in Retakaful advising on launches of Islamic fund structures, including private equity, Globally PwC has more than 700 mutual funds, Sukuk, Islamic exchange- actuaries and Takaful/Retakaful traded funds and funds of funds. Our specialists serving general, family, health tax specialists can advise on the most Takaful and Retakaful markets. appropriate tax structure for each fund type. PwC has solutions for the major challenges facing Takaful/Retakaful For fund promoters PwC can offer operators, such as tax issues, the potential guidance on eligible investments under lack of IT and operating infrastructure. Islamic principles and the monitoring PwC offers cutting-edge solutions for of investment restrictions. PwC works optimizing capital requirements, design with companies to monitor Shariah and development of management compliance function effectiveness. Advice information systems, to managing the is also available from PwC experts on the impact of an insurer’s conventional purification of non-Islamic income, cash and Takaful/Retakaful portfolio. PwC management and the custody of Islamic PwC 11
Contacts Islamic Finance Private Equity Colm Homan George Holmes +1 (441) 299 7116 +1 (441) 299 7109 colm.homan@bm.pwc.com george.holmes@bm.pwc.com Belaid Jheengoor +1 (441) 299 7190 Banking and Financial Services belaid.jheengoor@bm.pwc.com Andrew Brook +1 (441) 299 7126 andrew.brook@bm.pwc.com Reinsurance Caroline Foulger +1 (441) 299 7103 Hedge Funds caroline.j.foulger@bm.pwc.com Scott Watson-Brown +1 (441) 299 7156 scott.watson-brown@bm.pwc.com Captive Insurance Richard Patching +1 (441) 299 7131 Tax richard.patching@bm.pwc.com Rick Irvine +1 (441) 299 7136 richard.e.irvine@bm.pwc.com 12 Bermuda: Islamic finance hub in the western hemisphere
www.pwc.com/bermuda/islamicfinance PwC firms provide industry-focused assurance, tax and advisory services to enhance value for their clients. More than 161,000 people in 154 countries in firms across the PwC network share their thinking, experience and solutions to develop fresh perspectives and practical advice. See www.pwc.com for more information. © 2011 PricewaterhouseCoopers. All rights reserved. In this document, “PwC” refers to PricewaterhouseCoopers (a Bermuda partnership), which is a member firm of PricewaterhouseCoopers International Limited, each member firm of which is a separate legal entity.
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