AN ASSESSMENT OF ENFORCEABILITY OF FOREIGN JUDGMENTS AND SPV INCORPORATION IN SUKUK WITH A SPECIFIC REFERENCE TO SAUDI ARABIA, UAE, AND BAHRAIN

Abstract

In both Islamic and conventional finance, SPVs (Special Purpose Vehicles) are a crucial part of securitisation. In an Islamic mode of securitisation, the SPV is accountable to facilitate the management of Sukuk, holding the title of the underlying asset, serving as a bankruptcy remote, and facilitating the cash flow for the investors. While Sukuk agreements are primarily regulated by English law, Sukuk's Shari’ah framework and underlying contract are governed under the jurisdiction of the local laws where Sukuk assets are located. Given this background, the study aims to examine the enforceability of foreign judgements and SPV framework of Saudi Arabia, Bahrain, and UAE, and afterward qualitatively analyse to determine the best practices from jurisdictions such as the United Kingdom, the United States of America, Malaysia, the Cayman Islands, and Turkey which can be incorporated in the selected jurisdictions. In this essence, secondary data is obtained from multiple resources such as Sukuk laws and regulations as well as articles, books, websites, and academic writings. These materials are then compared and analysed using the content analysis method. Thus, the regulations with respect to SPV incorporation and enforceability of foreign judgment will be examined as the analysis of these aspects will assist the Islamic finance community to reform their SPV framework in ways that explicitly and efficiently ensure transparency and inclusively disclose the scope of the role and status of all parties involved in an SPV formation.