A research report submitted In partial fulfilment of the requirements for the degree of Master of Commerce University of the Witwatersrand / The purpose of this study is to analyse the operational economics of Islamic banking transactions in South Africa and to understand how the economics of these transactions lead to the IFRS accounting. The study also aims to highlight the similarities and differences of accounting for these transactions using IFRS, across the different South African banks. The transactions analysed are deposit products of qard and mudaraba and financing products of murabaha, ijarah and diminishing musharaka. The study was conducted through interviews with representatives from each of the four South African banks which offer Islamic banking products. Interviews were semi-structured and allowed for interviewees to voice their perspectives increasing the validity of the interviews. The study found that the specific Shariah requirements of Islamic banking transactions are considered and included in the structure of the contracts by all four banks offering Islamic banking products. However, the economic reality of these transactions closely resembles conventional banking transactions. The study also found that all four banks account for Islamic banking transactions using IFRS but the accounting does not match the Shariah requirements of each transaction, creating a cognitive dissonance between the accounting and the contractual form of the transactions. This study is the first of its kind in South Africa. The study adds to the IASB Consultative Group discussion on accounting for Islamic banking transactions under IFRS. Key words: Conceptual Framework, diminishing musharaka, IFRS, ijarah, Islamic banking, mudaraba, murabaha, qard / MT2017

This dissertation examines the free banking laws of seven states and the impact of three provisions of the laws on the states' banking experience. In Chapter I, a review of two current theories of the free banking experience is presented. One theory contends that the laws themselves induced the banking experience of the states. The second theory asserts that economic activity induced the banking experience. This study includes a discussion of both theories in the analysis of the provision's effect on the banking experience. In Chapter II, a simple model of the operations of a free bank is presented. Also, the laws of the seven states that determine the establishment and the operations of a free bank are reviewed. The review reveals that the states enacted similar provisions, but restrictions included in the provisions differ considerably. In Chapter III, the experiences of the states are examined. The states represent a spectrum of banking experiences. The experiences of each state are characterized by four measures; the entry rate, the failure rate, the below par rate, and the average loss per dollar. Each of these measures reflects a different aspect of banking behavior and each is examined in order to determine the effect of the provision and the effect of economic activity on the behavior of the free banks. The analysis shows that both the provisions and the economic activity influence bank behavior. In Chapter IV, a theoretical analysis of the effect of the stockholders liability provision on entry and on the bank's portfolio is developed. The theory shows that an increase in the stockholders liability of a free bank reduces entry into the free banking market and increases the risky asset-capital ratio of the free bank. The testing of the theories is presented in Chapter V. The empirical evidence confirms the hypothesis that an increase in the liability of the stockholders increases the risky asset-capital ratio. The evidence does not confirm the hypothesis that an increase in the liability of the stockholder reduces entry. / Ph. D.

Thesis (MBA)--Stellenbosch University, 2011. / The Islamic Banking industry has been one of the fastest growing industries worldwide with a compound annual growth rate of 28% between 2006 and 2009(Reuters, 2010). These growth rates were experienced amidst the worst economic meltdown the world has seen in decades. This is a clear indication that there is a high level of confidence in the industry. Although the industry has existed for centuries, the past few decades have brought about a revival in Islamic banking. Many Western countries are recognising the industry’s importance and have taken various steps in supporting the establishment of it. South Africa has also taken such steps and has a vision of becoming a hub for Islamic banking on the African continent. This mini thesis examines the differences in nature of the underlying principles of Islamic and conventional banking which then brings to the fore the various challenges that exist in the unhindered functioning of Islamic banks within Western countries. These challenges revolve around institutional and legal frameworks, regulatory and supervisory bodies, South African Reserve Bank requirements, interest, taxation and conceptual understandings. In order to provide recommendations to address these challenges, case studies of Islamic banking in both, Islamic and Western countries were conducted. These case studies provided insight into how countries have addressed similar challenges and to what degree were they successful. This provided the basis from which recommendations were made for Islamic banking to function efficiently and effectively in South Africa and for the country to achieve its goal of becoming a hub of Islamic banking on the African continent.

The Internet has had and will continue to have a major impact in the way in which banking business is conducted. This dissertation primarily considers the allocation of risks associated with Internet banking and in doing so considers the role of trade usage in Internet banking. The question of what the Internet is and more specifically what constitutes Internet banking is addressed. In order to have an understanding of the allocation of risks in Internet banking a good understanding of the traditional bank-customer relationship is necessary. The contractual basis for this relationship is discussed. The duties of the bank and the customer are discussed. In this regard the duty of a bank to act in terms of its customers mandate, the banks duty of confidentiality and the customers duty to exercise reasonable care are considered. The concept of a customer is briefly discussed. As trade usage plays a significant role in the contract between the bank and its customer, attention is given to the requirement for the recognition of a trade usage generally and more particularly in South Africa. The effect of Internet banking on the traditional bank-customer relationship is considered. The fact that a bank is still required to act in terms of its customer's mandate but is unable to identify is examined. As most Internet banking contracts impose an obligation on the customer to take security precautions and also limit the liability of banks, consideration is finally given to the possibility that the practices of banks in regard to Internet banking may have acquired the status of trade usage in this particular sphere of banking. / LL.M. (Banking Law)

What explains the form and substance of international financial standards? Form refers to the legal or non-legal bindingness of an international standard. Substance refers to how significantly the standard changes the international status quo. The form and substance of international standards on bank capital adequacy, hedge funds, “bail-in” resolution, and insurance capital adequacy challenge the predictions of major rationalist, realist, and two-level perspectives. I propose a novel theory and present original evidence to test two central claims. First, the structure of domestic institutions and strategic interaction within a state incentivizes an actor from that state to prefer and pursue a certain form of international standard: legally or non-legally binding. The state actor, as a first mover, aims to propose a standard at an appropriate international institution which produces standards of its preferred form. Second, the state actor must bargain with representatives of other states according to certain decision-making rules at the international standard-setting institution. The type of decision-making rule used in bargaining—not the market power or other characteristics of key players—explains the substance of the final standard. More restrictive decision-making rules, which use majority or supermajority voting, lead to greater change than open rules, which are based on consensus or unanimity voting. My empirical findings remove the veneer of technocratic legitimacy associated with international standard-setting to reveal intense distributional battles. In pursuing the Basel capital standards, the US Federal Reserve has been motivated more by turf wars with other US bank regulators than by its publicly stated desire to create a “level playing field” for internationally active banks. Supported by domestic collaboration between regulators and industry, French officials set a legally binding and deep de facto international standard for hedge fund managers over the vigorous objections of the City of London. By pursuing a soft standard on bail-in, the Bank of England has sought not only to protect taxpayers from costly bailouts, but also to keep Her Majesty’s Treasury at arm’s length. The lack of international insurance regulation is due not to the lack of effort by the UK Financial Services Authority and its European partners, but to open decision-making rules that allow US state regulators, albeit fragmented and under-resourced, to protect the international status quo. In each of these cases, I specify how domestic and international institutional settings provide enduring opportunities and constraints for key players in global finance.

published_or_final_version / abstract / Real Estate and Construction / Doctoral / Doctor of Philosophy

LL.M. / Please refer to full text to view abstract

The overall objective of this study was to determine the effect of Basel ll on the South African banking system through possible changes in the way in which a bank conducts its business. This purpose arose from the publication of the new Basel ll Framework on 26 June 2004, which has been adopted for implementation by the South African Reserve Bank. South Africa has set January 1, 2008 as the implementation date for Basel ll. The South African banks have mainly been focussing their efforts on becoming Basel ll compliant. Business line management and marketers have up until now not paid much attention to the likely impact of Basel ll on their markets and product offerings. A literature study was undertaken which included a review of the Basel ll Framework, impact studies and a review of the relevant literature on the topic. The Framework was analysed in order to determine the major impact themes. Once these impact themes were identified, the literature on those areas of impact was researched. The analysis of the Basel ll Framework identified three important themes that will have a significant impact on banks. There will firstly be an impact on market segments and product offerings. Secondly, there will be an internal impact on the banks in the form of increased costs, decision-making and capital management. The final theme identified was the global impact on the banks, especially regarding procyclicality and mergers and acquisitions. vii The research indicates that there will be both winners and losers. Banks that have large retail and mortgage exposures will benefit the most from Basel ll, whereas banks that have large exposures to sovereigns, banks and specialised lending portfolios will be negatively impacted. A capital charge for operational risk will mean that some areas such as corporate finance and asset management will be allocated capital, which was not the case under Basel l. Studies indicate that this new operational risk capital requirement more than outweighs any reduction in credit risk capital requirements. Customers that have high credit ratings are more likely to benefit from lower credit spreads. Similarly customers that have poor credit ratings can expect an increase in their pricing due to the higher capital requirements for these customers, unless they can provide a bank with ancillary revenues. Competition in the retail and mortgage markets will intensify due to the favourable capital requirements for these portfolios. The large South African banks will become takeover targets because of their large exposures to these markets. Basel ll will have a major impact on the way in which banks will do business in the future and as a result banks should view the implementation of the Framework as an opportunity to gain strategic advantages rather than just a compliance obligation. / Prof. A. Boessenkool

L'activité bancaire comporte nécessairement certains risques. Or, face au risque, le refus possède fondamentalement une vertu protectrice et est source de sécurité. Parce que le banquier est le premier à s’exposer aux risques, il semble naturel que la matière bancaire soit dominée par un principe de liberté, liberté de contracter, liberté d'entreprendre, liberté de prendre des risques et, partant, liberté de refuser. Toutefois, une propension du banquier à se surprotéger se révèlerait nocive pour le public, le refus étant naturellement source d’exclusion économique et sociale. En effet, il est impossible de nier le caractère indispensable des services bancaires pour tous les acteurs de la société. La liberté de refus du banquier doit donc être tempérée par la recherche d’un équilibre entre sa propre protection et la protection de sa clientèle réelle ou potentielle. De cette recherched’équilibre résultera alors une restriction certaine mais délimitée de sa liberté de refus de sorte qu'il sera, dans certaines hypothèses, débiteur d'un devoir de ne pas refuser. Dès lors, la liberté demeure le principe auquel il est dérogé par exception.Pour autant, le banquier n'est pas seul à prendre des risques. En effet, les contrats bancaires comportent des risques supportés par les cocontractants mais également par leurs créanciers, pourtant tiers aux contrats. C’est pourquoi, les cocontractants, souvent moins rompus que le banquier aux risques inhérents aux opérations de banque, et les tiers, ignorant généralement l’existence de ces risques, méritent d'être protégés. La recherche de sécurité pourrait alors prendre la forme d'une obligation au refus à la charge du banquier. Or, toute obligation au refus porte une atteinte évidente aux libertés du banquier et de ses cocontractants que seule la protection de l'intérêt général est véritablement en mesure de justifier. Toutefois, s’il existe, en droit positif, des hypothèses obligeant le banquier à refuser certaines opérations trop risquées, il semble qu’une obligation au refus en matière de crédit soit difficile voire impossible à dégager. Du reste, une telle obligation, pour morale qu’elle paraisse, ne serait pas souhaitable en ce qu’elle pourrait avoir pour conséquence de porter atteinte aux intérêts qu’elle prétendrait protéger. / Banking Business is subject to specific risks. Against these risks, the banker’s refusal seems to be an adequate means of protection and security.Since the banker is the first to expose himself to those risks, it seems natural that banking law is governed by a principle of freedom: freedom of contract, entrepreneurial freedom, freedom to take risks and consequently freedom to refuse. However, a banker’s tendency to overprotect himself would turn out to be detrimental to the public as such refusal can be a source of social and economic exclusion. Indeed, it is absolutely impossible to deny how vital the banking services are for all society actors. The banker’s freedom of refusal shall therefore be tempered by the search for an appropriate balance between his own protection and his existing or potential customers’ protection. Thus, certain and defined limitations to the banker’s freedom of refusal should result from this search for balance so that, under certain circumstances, a duty not to refuse could be imposed on the banker. In any event, freedom remains the principle while exceptions may be justified.Furthermore, the banker is not the only one to take risks. Indeed, banking contracts involve risks borne by his co-contractors and by their creditors, even though they are third parties to the agreement. That is why the co-contractors, often less experienced than the banker regarding the risks attached to bank operations, as well as the third parties to the agreement who are unaware of the existence of such risks deserve in this respect to be protected. The search for security could take the form of a refusal obligation imposed on the banker. However, as any obligation of refusal infringes on the banker’s and his co-contractors’ freedom, only the protection of the general interest would actually be able to justify such infringement. Though, even if there are indisputable assumptions where such an obligation of refusal exist under positive law, it appears that a general obligation of refusal shall be difficult, if not impossible, to identify. Such an obligation, although deemed moral, is undesirable as it could result in affecting the interests it sought to protect.

China, a nation inhabited by one fifth of the world's population and often referred to as "the sleeping giant", is undergoing significant transition. China, subject to domestic changes in its quest for a new balance between traditions, socialist notions and market economy, defines its new role in a changing world that drives towards the globalization of trade in goods and services faces. / This study examines the Chinese position regarding two aspects significant for both China's domestic process of transition and China's international role: telecommunications and banking services. The first chapter examines the general international framework of the GATS with respect to telecommunications and financial services. This includes, inter alia, a study of the legal framework, comprising in particular the WTO Financial Services Agreement and the Basic Telecommunications Agreement. Chapter Two provides an overview of the Chinese telecommunications and banking sectors. This Chapter focuses on the historical and cultural background influencing the process of domestic deregulation and internationalization of these sectors. Chapter Three features an assessment of the Sino-US WTO Agreement on the telecommunications and banking sectors. In the course of this study, a number of concerns and probable consequences can be identified for both sectors examined. / Will "the sleeping giant" move on towards complete market liberalization, or is that prospect merely a castle in the air? This study explores how the China's legal framework governing these two key sectors might unfold.