Capital Markets 199
of a secondary market. The illiquidity also harms dedicated sukuk inves-
tors, because it leads to comparatively large bid - ask spreads and limits their
investment strategies and opportunities for portfolio diversifi cation.
The global fi nancial crisis highlighted in stark terms the importance of
liquidity. As a result, the lack of liquidity is increasingly detrimental to the
market and directly impacts the assessment by both investors and regulators
of the overall asset quality of sukuk.
Buying and holding and the corresponding lack of liquidity have serious
implications for portfolio management. As a fi xed - income security ages, it
moves from one benchmark to another. For example, a fi ve - year bond may
be initially included in a one–fi ve - year benchmark, but as it ages and the
remaining maturity comes closer to three years, the bond may be dropped
to a one–three - year benchmark. In the conventional markets, periodic “re -
balancing” of portfolios to refl ect the change in the remaining duration of
outstanding holdings is relatively inexpensive to achieve, but in the case of
sukuk, where the secondary market is very shallow, re - balancing could have
a negative impact on portfolio performance in a material way.
Fourth, the complexity of sukuk structures is another impediment to the
development of this market. Shari’ah compliance is often achieved through
creating a complex set of cash fl ows, and the prospectus for even a relatively
simple sukuk will generally include a cash fl ow diagram replete with mul-
tiple boxes and arrows. Essentially, this is a market where every product is a
structured product, even ones that replicate in their credit risk plain vanilla,
unsecured bonds.
The global fi nancial crisis also drew attention to the dangers of highly
complex structured products. Specifi cally, such products are diffi cult to value,
as well as to unwind in the event of a default. Because of the similarity of
sukuk to conventional asset securitization, many of the same banks and pro-
fessional advisors who dominated the market in complex collateralized debt
obligations (“CDOs”) and other complex products that suffered signifi cant
downgrades and defaults during the fi nancial crisis are also leaders in the busi-
ness of structuring sukuk. Although the sukuk market proved itself to be more
resilient than many segments of the CDO market during the fi nancial crisis,
the complexity of their structures may continue to discourage participation
from many investors and issuers who were burned by structured products.
The lack of uniform interpretations across jurisdictions further hinders
the growth of the market. Structures that are deemed acceptable in one mar-
ket may not be equally accepted in another jurisdiction. The most frequently
cited example of this divergence in interpretation is the difference between
structures that are considered tradable in Malaysia and those that can be
traded in most Gulf countries. Such a lack of uniformity limits the depth of
the market for any particular sukuk issue.
There are also concerns about the lack of legal certainty in the sukuk
market. For example, the extent to which courts will consider Shari’ah
compliance in evaluating the enforceability of an Islamic fi nance contract
remains an open question in most jurisdictions. As a result, there is a risk