The regulation of insurance in the UK is governed by the Financial Services and
Markets Act 2000 (“FSMA”), which came into force in December 2001. FSMA provides
that authorisation by the FSA is required in respect of any person carrying on, or
purporting to carry on, a regulated activity by way of business in the UK where such
t a k a f u l
regulated activity is in respect of a specified investment (unless the person carrying
on such activity is exempt1
). A specified investment includes rights under a contract
of insurance and, similarly, regulated activities include effecting or carrying out
contracts of insurance2. The question of whether the business element is present will
be one of judgment taking into account several factors, none of which is likely to be
conclusive. However, it is worth noting that in terms of geographical scope, a Takaful
operator could be deemed to be ‘carrying on business in the UK’ for the purposes of
FSMA even though it may not be based in the UK. This would be the case if, for example,
the Takaful operator transacts business by making an occasional visit or phone call to
the UK or it has established a web site which is accessible from the UK. The scope of
FSMA is clearly wide in this regard.