By Rizwan H Kanji and Tom O’Neill, partners at King & Spalding
When the first sukuk in Turkey was issued by KuveytTürkKatilimBankasi A.Ş. in 2010 through a Cayman Islands special purpose vehicle, the legal and tax infrastructure in Turkey was almost non-existent. Over the last four years, laws and regulations pre-approving certain Islamic structures and providing for the incorporation of asset leasing companies (Turkish special purpose vehicles) (ALC) have come into force and the tax treatment of certain Islamic structures has been addressed favourably.
These changes have facilitated frequent sukuk issuances by the Turkish participation banks as well as by the Republic of Turkey. It is not surprising that sukuk issuance is increasingly becoming an attractive alternative source of funding in Turkey, particularly when potential pricing and funding diversification benefits are considered together with these market developments. In 2015, we expect many Turkish corporates will consider issuing sukuk as an alternative or supplement to conventional bonds and loans. We set out below some of the key points for Turkish corporates to take into consideration with regard to structuring and issuing sukuk.
In all Islamic finance structures (including sukuk), returns to sukuk holders must originate from or in relation to underlying assets or ventures. The returns must also be Shari’ah compliant and accordingly, cash flows must flow from Shari’ah compliant assets and/or ventures. Turkish corporates will therefore need to ensure the availability of eligible assets from a Shari’ah compliant perspective for sukuk issuance.
In addition, at least 51 per cent of the issue amount of the sukuk will need to be supported by tangible assets (which should form part of the Shari’ah compliant underlying assets) to permit the sukuk to be available for trading in the secondary market at a premium or discount. The 51 per cent.requirement may be particularly helpful to Turkish corporates that may not have available unencumbered tangible assets equivalent to 100 per cent. of the issue amount of the sukuk.
Moreover, there is no clear definition of tangible assets in Islamic finance jurisprudence. Case by case analysis together with international counsel experienced in Islamic finance across different jurisdictions as well as eventual interaction with leading Islamic scholars will be required on this threshold topic. Turkish corporates involved in diverse businesses will have a wide range of asset classes on their balance sheets that will not have been considered for asset eligibility in the context of sukuk issuances by the Turkish participation banks. In our experience, telephonic airtime and intellectual property in relation to software licences are examples of corporate assets previously deemed to be tangible assets from a Shari’ah perspective for sukuk issuance outside of Turkey. We have also been involved in numerous structuring discussions and asset eligibility determinations with corporates in many jurisdictions and have frequently engaged in discussions of this issue with leading Islamic scholars, with whom we have excellent relations.
Use of Proceeds
The proceeds from the issuance of sukuk will need to be used in accordance with the principles of Shari’ah. Simply put, the proceeds should not be used towards anything which may be deemed to breach principles of Shari’ah, such as but not limited to, interest bearing return investments, alcohol, gambling and related ventures. While this requirement is unlikely to be difficult to comply with for Turkish corporates, how Shari’ah compliance is achieved will be a function of the issuer’s business and industry.
Existing Negative Pledge Clauses
Based on our experience on Turkish transactions and on the advice provided by Turkish legal counsel, the Lease Certificates Communiqué (Serial No. III/61.1) (the Lease Communiqué) Article 5 (2) contains an inadvertent potential constraint on the issuance of sukuk by Turkish corporates. It states that if the underlying assets are capable of registration of transfer, the transfer should be registered. Moreover, Article 61(4) of the Capital Market Law No. 6362 (the Capital Markets Law) provides that “In case: (i) the issuer cannot fulfil its undertakings arising from the lease certificates [i.e. sukuk] when they fall due; (ii) the management or the audit of the issuer is transferred to a public institution; (iii) the operation permit of the issuer is revoked; or (iv) the issuer is bankrupt, the proceeds gained through the assets under the portfolio of the issuer are to be primarily used for the payments to lease certificate holders. In such a case, the Capital Markets Board is entitled to take any kind of precautions in order to ensure the protection of rights of the lease certificate holders.”
The inadvertent result of these laws is that, with respect to assets whose transfers may be registered, such as real estate and shares, sukuk holders, in an event of default, would by operation of law have recourse to the assets of the ALC issuer. This effectively may turn some Turkish sukuk into asset backed rather than an asset based sukuk. This result is particularly anomalous when one considers that 98% of the sukuk issued globally are asset based rather than asset backed. This in turn may breach standard negative pledge covenants contained, for example, in the terms and conditions of Eurobonds that have been issued by various Turkish corporates or Loan Market Association standard form negative pledge clauses. The Lease Communiqué approves alternative structures which do not trigger the requirement for the registration of transfers. These alternatives will also need to be discussed with experienced international counsel and may require discussion with the Capital Markets Board (CMB).
Recent transactions in diverse markets have demonstrated increased investor appetite for longer term Shari’ah compliant paper. This trend has included sukuk issuances outside of Turkey by corporate issuers as well as sovereign and quasi sovereign issuers such as in Dubai, Saudi Arabia and Malaysia. In Turkey, the Republic issued a 10 year sukuk in 2014 after having earlier issued sukuk with shorter tenors and Bank Asya and Albaraka issued a 10 year tier II subordinated sukuk in 2013 (whose maximum 10 year tenor was, however, dictated by regulatory requirements). Other sukuk issued by the Turkish participation banks, however, have had shorter tenors ranging within more customary periods of five to seven years. Turkish corporates should seek advice from their investment banks regarding optimal tenors and their pricing implications. In the event a Turkish corporate does consider issuing sukuk with a longer maturity, the offering structure is may be more likely to include an offering into the United States in compliance with Rule 144A under the Securities Act in view of the importance of U.S. market demand for paper with longer maturity.
While sukuk in Turkey and elsewhere have been listed in different venues in Europe, the Irish Stock Exchange has more recently emerged as a frequent listing venue due to a variety of factors, including some flexibility around eligibility and financial statement criteria as well as response time for prospectus review, which includes, in practice two-three days for initial review of the prospectus. For example each of the issuances by Turkish participation banks in 2014 and 2013 were listed on the Irish Stock Exchange, as have been all of the Republic of Turkey’s sovereign sukuk issuances.
The amount of time required to draft the prospectus, together with time required to prepare the originator’s consolidated financial statements to be included in the prospectus, will often drive the transaction timetable for a sukuk issuance. Initially, Turkish corporates should consider, together with their investment banking advisors and their counsel, whether to access the U.S. market under Rule 144A under the Securities Act. To date, all sukuk issued out of Turkey to the international markets have been offered outside the United States only, although there are many examples of sukuk offered into the United States under Rule 144A from other jurisdictions. The preparation of a prospectus for a non U.S. offering may (but will not always) involve less disclosure and accompanying due diligence in important areas, such as the scope of the operating and financial review (or its equivalent section) in the prospectus, which sets out the originator’s analysis of its consolidated results of operations and financial condition, as well as the scope of the documentary due diligence investigation (data room).
However, Turkish corporates have a long history of accessing the international equity markets, and more recently the international Eurobond markets, under Rule 144A. Indeed, Turkish corporates considering issuing sukuk that have already offered Eurobonds are likely to be able to use, or readily adapt and update, large portions of their existing Eurobond prospectuses for their sukuk offerings. Moreover, in our experience and relative to other jurisdictions, many Turkish companies produce their annual and interim consolidated financial statements relatively quickly, which should facilitate market access as has been the case for other types of securities offerings. Finally, based on corresponding practice in the Eurobond markets and subject to discussion with investment banking advisors, Turkish corporates should be able to include in their sukuk prospectuses financial statements that are prepared in accordance with CMB Principles rather than International Financial Reporting Standards (IFRS). This should be helpful in particular for Turkish corporates whose shares are listed on the Istanbul Stock Exchange, who will already have an obligation to produce accounts prepared in accordance with CMB Principles but not IFRS (although for many companies the differences between the two will not be material).
Currency of Issuance
Turkish counsel will advise that Turkish law does not limit the currency in which a sukuk may be issued; any currency is possible provided there is investor appetite. The U.S. dollar remains preferred for Middle Eastern investors—an important part of the investor base for any sukuk issuance–as this minimizes exchange rate risk in jurisdictions where the local currency of the investor is pegged to the U.S. dollar. U.S. dollar denominated issuances are more likely to be offered into the United States under Rule 144A.
If the offering of a sukuk by a Turkish corporate be extended into the United States under Rule 144A, it will likely be necessary, because of the issuance structure through an ALC, for the issuer to be exempt from registration under the U.S. Investment Company Act of 1940. This is likely to mean (and has meant for Rule 144A issuances outside of Turkey) that in addition to restricting sales to qualified institutional buyers (QIBs) in the United States under Rule 144A, sales will need to restricted to QIBs that are also qualified purchasers (QPs) under the Investment Company Act. However, both of these categories of investors are large institutions whose definitions overlap to a significant extent. In our experience most investment banks will advise their issuer clients that this additional restriction is unlikely to present significant marketing concerns. Special considerations will need to be taken into account for an issuer that would consider issuing to QPs/QIBs under Rule 144A after having conducted an offering or offerings of sukuk outside the United States only in accordance with Regulation S under the U.S. Securities Act.
Various Turkish Approvals
Turkish counsel will advise that there are a number of approvals required from the CMB in order to issue sukuk. The first key approval relates to incorporation of the ALC, whose criteria are set out in the Lease Communique. The second key approval is the registration approval which includes the approval of the sukuk structure and documentation. On application to the CMB for either approval, the CMB will announce the application publicly on its website. This publication requirement should be taken into account when considering transaction timetables and the point at which the Turkish corporate would want, and its investment banking advisors would recommend, that the transaction become visible to the market.
As in a conventional Eurobond, an investment grade rating provides commercial benefits ranging from pricing to attracting different types of investors such as sovereign pension funds. In an asset based sukuk, the approach is predominantly to structure the sukuk to reflect the corporate risk of the originator. Accordingly, in our experience rating agencies have in most instances assigned to the sukuk the rating assigned to the Turkish corporate. Turkish corporates should discuss all ratings considerations with their investment banking advisors. * * * The application of these considerations to a particular issuer will require further discussion that is specific to a Turkish corporate and its objectives in issuing sukuk. We would be delighted to discuss potential issuances with Turkish corporates and bring our considerable experience to bear.
Corporate treasuries under pressure need multi-banking trade finance technology
By Andrew Raymond, CEO, Bolero International
The pressures on corporate treasuries in global trade have continued to mount since an HSBC survey last December found many felt ill-equipped to meet the demands placed on them.
Since then the pandemic has caused massive disruption and has overturned many carefully-laid plans. The same pressures identified in the survey remain, but have intensified. Treasurers still face ever-more complex flows of information from multiple systems while relying substantially on manual processes. At the same time they are expected to drive change and provide strategic insight.
It was no surprise then that two-thirds of treasurers in the survey were planning changes to the technology they used as part of transformation programmes to increase efficiency and bring greater visibility to treasury operations.
Reliance on manual methods and paper documents makes little sense and is unsafe
As we move through the pandemic, pressure on cashflow and working capital remain potent factors. Many treasurers working for enterprises engaged in global trade know that continuing to use manual methods to manage credit lines, and important trade finance instruments such as letters of credit (LCs) or guarantees is hard to justify in an age of digitisation and multi-banking trade finance solutions.
Not least because of the constant problem of fraud and forgery in relation to paper documents, which has led some banks to withdraw from involvement in commodity trade finance. The allegations of prolonged major fraud against the oil trader Hin Leong in Singapore are a case in point, sending tremors through the trade finance world. Court documents reportedly allege the fraudulent use of 58 import letters of credit that were not supported by any underlying transaction. Forged bank statements, bills of lading, sales contracts and invoices are also allegedly involved in very substantial fraud designed to cover losses and give a false impression of liquidity.
The case has not just exposed the susceptibility of paper trade documentation to forgery – it has also prompted some well-known European long-term commodity finance banks to withdraw or review their activities in this field. None of this makes everyday operations any easier for corporate treasuries still using paper in trade finance.
Reducing fraud through digitisation of trade finance
With fraud such a substantial problem, treasurers need to think hard about digitisation and how it reduces the risks. Paper documents can be forged when out of sight while being couriered around the globe. Once a document is digitised, however, fraud or forgery become extremely difficult because of encryption and audit trails. The electronic document remains completely visible at all time, but only to those engaged in the transaction and only the legitimate holder can amend it.
Increasing the efficiency of each trade transaction through digitisation
Digitisation substantially reduces the chances of fraud, but it also transforms how treasuries manage credit lines, letters of credit and guarantees, vastly increasing the speed and efficiency of transactions. It also maintains relationships with preferred banks.
In a digitised workflow, automation takes care of the data-uploading for LCs, while transfer between parties is at the click of a mouse across secure digital networks. LCs are notoriously complex instruments requiring close attention to detail and strict compliance with the rules governing their use. Compliance-checking can also be automated to reduce the administrative burden on treasuries and increase accuracy.
These advantages are important because the use of paper under LCs can imperil a transaction at many potential break-points. Documents must be presented physically, often to a prescribed location. Yet being time-limited, LCs (and bank guarantees) often expire before they are used, or their presentation periods are found to have been exceeded. Prevention of these problems requires constant supervision and many hours of work. When lines expire, new and potentially more expensive credit must be negotiated, while failure to present on time threatens transactions, leads to substantial extra costs, delays in releasing cargo and poor relationships between counterparties.
Consolidating credit lines and trade finance on a single, easy-to-use platform
The most effective form of digitisation for corporate treasuries is through a multi-bank trade finance platform which will slash the time involved in supervising credit lines, LCs and guarantees. An exporter may have thousands of LCs and guarantees with dozens of different banks. Optimising their use still requires laborious logging in and out of banking portals. Finding a single LC or guarantee relating to a transaction can be very difficult.
If treasuries implement multi-banking trade finance solutions, they will eliminate the need to toggle between different bank portals. They gain quick and easy access to all their banks, along with far greater visibility and control of all their credit lines and individual LCs. From a single platform they can manage and edit all their trade finance documentation and electronic presentations, as well as open account transactions and electronic bills of lading. All tracking and reporting is accomplished with a few mouse-clicks, while communications with banks remain secure. This is a major advantage when remote working is on the increase in so many areas of the globe.
As the world changes, but the pressures intensify, there is an urgent need for treasuries to grasp greater efficiency and visibility in their management and optimisation of credit lines and trade finance. It makes the adoption of multi-banking trade finance solutions an obvious first move.
How can financial services companies deliver great customer service and retain customer loyalty?
By Chris Angus, Senior Director, 8×8
The reality many banks are facing now is that given Amazon Prime can deliver goods to our doors in less than 24 hours, even during a pandemic, consumers expect the banks they use to keep up with their needs.
People want to be able to access their bank accounts, services and speak to an expert within a matter of minutes, whether it’s via an app on their device, web-chat or over the phone – their expectations are high. Adding to this, the World Health Organisation has advised consumers to use cards instead of banknotes during the Covid-19 pandemic – changing the way consumers pay for products.
With the recent health crisis forcing contact centres to shift to home working, collaboration can be more challenging, especially without the appropriate IT systems and applications in place. A delay in communication or unavailable information can, over time, cause reputational damage.
According to Deloitte, the bank of 2023 will look very different from today, making it clear that financial institutions should consider how they prepare for the future.
- Review your business communications strategy – both inside and out.
A crucial part of this preparation needs to be on reviewing business communications – both internally and externally – ensuring that employees can seamlessly collaborate and connect regardless of their location.
And technology is key to this movement, not only between teams, but also with customers. With the right communication tools in place, employees can gain better insight and deliver services that meet customer expectations. This results in not only satisfied customers, but also happier, and more motivated employees. All of which goes towards truly building a solid foundation for business recovery and continuity.
For many businesses right now, the future feels uncertain, so it’s important to consider the flexibility of solutions before deployment. Cloud computing, for example, allows businesses to stay nimble, scaling up and down their requirements to reflect the needs of the business and their customers.
- Implement an ‘Operate from anywhere’ strategy
The first half of 2020 was defined by the need for agility, an adjustment in how we operate our day-to-day lives and how we communicate both professionally and personally. The remainder of 2020 and beyond will focus on the application of technology to define how we reinvent working and connecting with each other, our customers, partners, and beyond.
To deliver great customer service, while ensuring employees are happy, productive and most of all safe, businesses need to be able to operate from anywhere. Yet, for many with contact centre requirements, this is not an easy transition. Enabling contact centre agents to work flexibly and from remote locations is now a critical component of business operations that must be top of mind for the entire C-suite.
Agents need to have the right tools to ensure they can continue to provide the same level of customer service, from any location. For an operate-from-anywhere strategy to be effective, organisations should consider how they can combine voice, team chat and video meetings on a single technology platform.
The use of multiple apps for multiple purposes can have the opposite effect than intended. Unifying communication channels enables collaboration and productivity while minimizing complexity. It also means a more streamlined and efficient experience for both employees and customers aiding great customer service.
- Meeting expectations is key
Not only have recent events affected contact centres operations, but the traditional, in-person branch experience has also been significantly impacted. Bank branches can now only accommodate a small percentage of customers. These restrictions have accelerated the impetus for businesses to meet their customers’ needs online, but also, the expectations of customers have also evolved rapidly. Virtual instant communication between businesses and consumers is now becoming a basic customer need. For financial services, this means considering digital-first applications, such as chatbots or instant messaging, where possible.
Businesses now also need to be where their customers are and offer them an omnichannel experience. Via the cloud, businesses can continue to serve customer needs through multiple channels such as voice, video, email, SMS and more.
While meeting expectations needs to be a priority – it’s not enough. Financial services institutions need to ensure they meet those expectations at speed, being the new battleground for competition. When it comes to finances, consumers expect their problems to be dealt with at speed and to the highest standards.
In summary, taking a technology-first approach which enables both employees and consumers to operate and access their data and communication tools from anywhere is the defacto business priority. Helping the financial services industry empower employees to better serve customer expectations with speed and accuracy – and ultimately delivering great customer service.
How payments can help streamline operations and boost customer satisfaction in the vending industry
By Darren Anderson, Business Development Manager, Self Service, Ingenico Enterprise Retail
The COVID-19 pandemic has had an astounding impact on the payments industry, causing cash usage to plummet as contactless and card-not-present volumes soared. Of course, this phenomenon was not unforeseen by payments professionals, who had predicted such a movement away from cash, but not at the speed the virus guidelines facilitated. In fact, due in part to the hygiene perks of contactless payment methods increasing its adoption, 50% of customers think that cash will disappear completely at some point in the future.
The unattended market was ahead of the pandemic in terms of contactless alternative payment method (APM) adoption, and it continues to upgrade its offerings to suit a wider range of industries. Nevertheless, the pain point for vending operators is that they’re often not sure exactly how these technologies work, or how to implement them. And with payments offerings constantly evolving, it’s becoming harder for vending operators to know which solution would be the best fit for their business.
As such, one easy way for vending operators to ease this load is to partner with a knowledgeable payments advisor who can not only provide the best solutions for their business, but guide them through the process and any need-to-knows. It’s also important to investigate the payments trends across the vending market, what the future might bring and what vending operators need to know about newer payments technology and the value it can bring to their unattended retail business operations.
Vending through the pandemic
Coronavirus has impacted the unattended market in various ways. In some cases, vending machine use has decreased as a result of lower footfall and closed premises. However, the nature of vending being self-service, for many it’s just been a case of upgrading systems to meet new guidelines and hygiene recommendations to start boosting their usage again. As cash usage decreased over the course of the pandemic, cards and APMs stepped in to provide a host of benefits, and as customers use and enjoy these seamless technologies, they are fast becoming the preference.
These developments have provided the opportunity for vending operators to embrace newer technologies which, although ultimately positive, can prove daunting if such retailers are not accustomed to working closely with payments. Fortunately, the vending market is in a great position to take advantage of new contactless technologies, being already low on human interaction and having 24/7 capabilities.
What’s more, the market can not only cater to consumers’ evolving needs, but it can also provide the flexibility and reliability that consumers are relying on as the world around them is changing. Many new technologies can also improve the general operations and management of vending, offering features such as easier on-the-go stock management and maintenance notification technology.
Keeping the consumer in mind
Consumers today want to enjoy the latest innovations and best-in-class customer experiences. These shoppers believe that self-service is a time-saver, and they also view cashless and contactless as faster and more seamless ways to pay – a fact which is reflected in the recent consumer demand for a wider variety of APMs. Customers now expect even more options to pay for their goods and services, from QR codes, to in-app payments and more.
Alongside the cashless trend, data-security and customer experience are two other factors driving the vending market evolution. With constantly evolving fraud developments in the online world, good security is more pertinent than ever, and has to be a central consideration to vending operators – as well as ensuring a seamless customer experience.
From a customer usage standpoint, mobile payments are becomingly increasing popular, as driven by the Gen Z market. According to our research, 63% of Gen Zers have said they would pay more for a mobile experience.
Trust and a good experience are also considerable factors across all customer groups, with 95% of customers claiming their loyalties lie with a company they trust, and 86% willing to pay more for a positive experience.
To appeal to ever-hungry consumers, vending operators need to provide the options they want. In the unattended market, this is relatively simple – not only do they provide a convenient and reliable method of payment for customers, but they also avoid face-to-face interaction. They can also supply a range of different products and accept a variety of payment methods to appeal to all customers, no matter their preference.
Using payments to drive revenue
Driving revenue is a two-pronged approach – you need to appeal to customers to keep them coming, and streamline operations to reduce overheads. In order to meet both parties’ expectations, it’s important to respond well to new vending challenges, taking note of the solutions that enable merchants to provide their customers with the payment methods they prefer.
Payments are complicated, so there’s no need to worry if you’re not hugely familiar with the offering out there, or unsure where to start – that’s where a payment service provider (PSP) can assist. With the expertise that a PSP brings, along with the technological solutions they offer, vending operators can improve customer journeys in all unattended environments.
Such technological solutions are flexible and can cater to specific business needs, while providing easy, quick, and secure payment methods that protect both the business and the customer’s personal data. They can also improve operational efficiency, increasing business performance with features such as real-time reporting and smart transaction management, to provide a best-in-class customer experience.
With smart devices, a secure gateway and advanced acquiring capabilities, PSPs can help vending operators design a flexible vending solution tailored to their individual and specific needs. To find out more about unattended retail and how your company can benefit from Ingenico’s unique expert knowledge, get in contact with Ingenico Enterprise Retail today at www.ingenico.com/smartselfvending.
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