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Welcome to this month’s highlights from the Lexis®PSL Banking & Finance team which cover the key news updates from July 2016.
The following Brexit news analysis has been published on our blog during July 2016:
A joint working party of the Law Society Company Law Committee and the City of London Law Society Company Law and Financial Law Committees has issued a practice note designed to help parties (and their legal advisers) who wish to execute commercial contracts using an electronic signature or enter into a commercial contract with one or more other parties intending to execute the contract using an electronic signature.
Although the practice note does not focus on any one signature method, electronic signatures can take a number of forms, including:
The practice note sets out the principles for determining whether any particular document signed with an electronic signature has been validly executed. It is limited in scope to commercial contracts entered into in a business context, rather than those in which consumers or other individuals are a party. The note is also limited to the position under English law. The note points out that each transaction should be approached according to its own facts and should take into account the wider implications of the transaction, including any relevant regulatory or tax implications.
In particular, the note considers:
the legislative framework, including Regulation (EU) No 910/2014 (the eIDAS Regulation) which has had direct effect in EU member states from 1 July 2016
using electronic signatures to execute different types of English law governed documents:
minutes and resolutions for companies incorporated under the Companies Act 2006
other issues that will need to be considered such as corporate capacity and authority to execute contracts using an electronic signature and certainty that the person purporting to sign using an electronic signature is in fact that person or acting under the authority of that person
A copy of the practice note is available here.
From 30 June 2016, companies and limited liability partnerships (LLPs) have to declare to Companies House who owns or controls them, marking the introduction of the People with Significant Control (PSC) register. This declaration will be made when the relevant entity submits their annual confirmation statement to Companies House.
The PSC register includes information about the individuals who own or control companies such as their name, date of birth, nationality and details of their interest in the relevant company or LLP. A PSC is someone who:
A revised recommended form of facility agreement for real estate finance multi-property investment transactions (REF Investment FA) has been launched by the Loan Market Association (LMA). The revisions were compiled by an experienced working party consisting of bank representatives, finance providers and major law firms.
The revisions made to the REF Investment FA include amendments to the insurance undertaking, to bring it into line with current practice and risk allocation on the REF insurance market, and the addition of an undertaking in respect of asset managers to reflect the emergence on the REF market of the figure of strategic management portfolio advisors.
The revised form of agreement is available to members on the LMA website. For more information, see our news analysis: Analysing the latest form of LMA real estate finance investment facility agreement.
The July issue of ISDA Quarterly has been published and focuses on the challenges that lie ahead for the Basel Committee on Banking Supervision (BCBS). The articles included cover the efforts to increase the comparability of risk-weighted assets and how they have progressed in 2016. It also considers:
The full report can be viewed here.
ESMA has launched a consultation in which it proposes prolonging the phase-in period by two years for central clearing of OTC derivatives applicable to financial counterparties with a limited volume of derivatives activity under EMIR. The consultation closes on 5 September 2016
Commission Implementing Regulation (EU) 2016/1066 laying down implementing technical standards with regard to procedures, standard forms and templates for the provision of information for the purpose of resolution plans for credit institutions and investment firms pursuant to the Bank Recovery and Resolution Directive 2014/59/EU (BRRD), has been published in the Official Journal.
In accordance with BRRD, art 11(1)(a), institutions have a duty to cooperate as much as necessary with the resolution authorities for the purposes of drawing up resolution plans. BRRD envisages a duty of cooperation of the competent authorities with the resolution authorities. This cooperation entails that the competent authority and the resolution authority jointly verify whether some or all of the necessary information is already available to the competent authority, by virtue of it exercising its supervisory tasks. Where that information is available, it is appropriate that the competent authority transmits it.
Commission Implementing Regulation (EU) 2016/1066 is based on the implementing technical standards submitted to the European Commission and will enter into force on 26 July 2016.
The full text of the Regulation can be viewed here.
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