Islamic finance was not immune to the credit crunch

Analysis But avoiding certain kinds of debt will help the sector to rebound.

Times are difficult; we are still mired in a financial crisis. And debt is the problem, somehow: subprime mortgages stated this whole mess, along with mortgage-backed securities (MBS), collateralised debt obligations (CDO) and other debt and derivatives instruments. But how? Is debt itself the problem? Were Islamic banks and institutions affected in the same way as conventional institutions? If not, why not?

Not so long ago, governments throughout the world encouraged expansion of home ownership and property investment. It was good local politics, and also was thought to be good economic policy. Property prices had appreciated in value for decades. Liquidity was high; banks had money to lend. Interest rates were low. People could borrow and buy. Buying increased demand, which increased property prices.

Securitisation allowed the banks to make loans and then sell them into large pools, taking them off the bank's balance sheet. The pools repackaged the loans into different groupings, or tranches, and sold the new securities (the MBS) into the capital markets. Each tranche had a different risk profile. Those that were paid first had less risk, and thus paid a lower rate to purchasers. Those paid last had higher risk and higher rates. In theory, the capital markets allocated risk more efficiently as each buyer purchased the risk it could bear.

Because they sold the loans, the banks could make more loans: the "originate-to-distribute" model. Subprime mortgages are loans to people that do not have the credit ratings that would allow them to borrow at "prime" rates. They have poor credit ratings, or default or bankruptcy histories, or not enough income, or perhaps they are just borrowing too much money relative to the value of the property (excessive loan-to-value).

In a competitive market, with increasing property values, low interest rates and high liquidity, it is tempting to continue to lend to subprime borrowers. After all, property values will increase, and borrowers can refinance at the same percentage of a higher value and then repay the first subprime loan. And, anyway, the bank will sell the mortgage and someone else (the pool) will have to deal with the issue.

But the assumptions about appreciation and rates turned out not to be true. Property values stopped appreciating, and even decreased. Interest rates increased. People could not borrow against higher-value property and refinance to pay their first subprime loan, so they defaulted on the subprime mortgage. The subprime mortgage had been sold into a pool, so the MBS on that pool defaulted in turn. That MBS had been sold into a different pool, which combined it with other debt and issued a CDO. Confused yet?

In other words, defaults led to defaults. The death spiral began. Banks could not continue to sell into pools, so they could not lend more. People lost confidence in the entire system, leading to the second phase of the financial crisis: the liquidity seizure. Lending stopped as banks and financial institutions, as well as many others, became uncertain about how to handle their loans and other financing with the future so unpredictable.

On the other hand, Islamic banks and financial institutions must comply with sharia law. Therefore, they cannot own any of these interest-bearing loans (or MBS or CDO) or derivatives. This is intrinsically bad debt from the sharia perspective. Some of it is also bad debt from any perspective, due to faulty underwriting assumptions, among other factors. Islamic banks cannot own stock in other institutions that engage in interest-based financing: this is intrinsically bad equity. As a result, it appears that Islamic banks escaped much of the damage of the first phase of the financial crisis.

Their success in this period was enhanced by their high liquidity, due to high oil prices and their higher capital adequacy ratios (the relationship between their assets and the risk posed by their financing). But things did get ugly for Islamic institutions in the liquidity phase. They had disproportionately large concentrations of outstanding financing in a few geographic regions and industries - particularly property, construction and private equity - and limited their investments outside of those few regions.

When property values dropped, construction stopped and other industries could not find normal operational financing, this usually good (and sharia-compliant) debt became ugly - and then bad - debt. But for different reasons: over-concentration and less diversification, again as a result of underwriting practices. Early indications are that Islamic institutions suffered more than conventional institutions in this second phase.

Now, it seems, there is a slow resurgence of debt issuance. By necessity, refinancing of outstanding debt, good and bad, has begun. Sukuk issuance seems to benefit even before the conventional bond markets. Conventional lenders are inviting Islamic institutions into infrastructure and construction financing, particularly in jurisdictions that benefit from oil revenues and have continued these projects.

So the debt markets are stirring. As we head out of the financial crisis and into an unpredictable future, Islamic institutions will certainly continue their fundamental focus on good debt and avoidance of bad debt as a fundamental matter of Shariah compliance. Their challenge will be to avoid the ugly debt by re-evaluating underwriting and other practices. That should be a manageable challenge, and it bodes well for Islamic finance.

Michael JT McMillen is a partner in the Dubai office of the law firm Fulbright & Jaworski who specialises in Islamic finance.