الإطار التنظيمي والتشريعي لعقود المشتقات المالية في مصر - دراسة مقارنة مع أحکام الشريعة الإسلامية والنظم القانونية ذات الصلة في الدول العربية
Year: 2020
Type: article
Abstract: The dynamic change in the economic, financial, and investment environment implies having new financial tools and products, which has resulted in "financial engineering."One of the essential products of financial engineering is "derivatives."Derivatives are financial instruments whose value is derived from the value of the underlined assets.Derivatives include futures, options, swaps, and forwards.Derivatives have been accused of being one of the main reasons behind the global financial crisis because derivatives imply a high level of risk and uncertainty.Accordingly, some countries, including the Arab countries, have been resisting regulating derivatives from a legal perspective to avoid the associated financial and economic risks on the one hand and the possibility of being in conflict with Shari'a on the other hand.Nevertheless, trade-in derivatives have started worldwide over the counter and then moved to regulated capital markets and stock of exchanges to avoid fraudulent transactions and to provide control on such transactions.As a result, derivatives in a way that makes such transactions productive.Though the Egyptian Legislator has been delayed in taking this step, derivatives have been regulated recently by the Law No. 17 of 2018, amending the Capital Market Law No. 95 of 1992 and the Prime Minister's Decree No. 2479 of 2018 amending the Executive Regulation of the Capital Market Law issued by the Minister of Economics and Foreign Trade No. 135 of 1993.The new amendment of the law and the executive regulation includes adding new financial tools to the Egyptian Stock of Exchange, including mainly, (Sukuk) and forwards or derivatives.Accordingly, for the first time, Egypt has the legal organization of derivatives and the exchange where such derivatives are traded in.It is also worth noting here that the new law and its executive regulation focus on the regular derivatives that are exchange-traded and not over the counter derivatives, as the research will explain later.Accordingly, this research addresses a couple of issues, including mainly the understanding of the technical and legal nature of derivatives as new financial tools to the Egyptian market, which implies the knowledge of the working mechanisms of such tools.Such understanding means an accurate analysis of the amended law of the capital market that has regulated derivatives for the first time in the history of the Egyptian capital market, as well as an understanding of the market practice concerning derivative and how the Egyptian Financial Supervisory Authority has been dealing with derivatives.That is the main problem addressed by the research through a comparative study between the Egyptian law and the relevant Arab countries' law that have preceded Egypt in regulating derivatives.A detailed analytical analysis of the impact of Shari'a on the said legal systems follows.In particular, derivatives are always accused of conflicting with Shari'a due to the risk (Gharar) and uncertainty accompanying such types of transactions.Finally, the research provides some concluding remarks on the evaluation of the Egyptian regulation of derivatives to the nature of derivatives transactions and the risks arising concerning such regulation on both legal and financial levels.The importance of the research lies in presenting derivatives as new tools inserted into the Egyptian market, enjoying the privileges of diversity, novelty, and is widely used.Also, the study explains issues such as the benefits of such tools, their legal characteristics, enforcement mechanisms, and conditions that have to be met.The analysis uses the descriptive-analytical methodology.Also, the research provides a comparative study with both Arab countries' regimes and Sharia in an attempt to provide a reasonable and neutral evaluation of Egyptian law.Finally, it is essential to note that the research does not offer any historical aspects as this is not convenient for the nature of capital market studies, which are usually very practical.
Author: رضوى صلاح الدين محمد السمان
Institution: Cairo University
Language: Arabic
Subfield: Accounting
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W3119179196