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What are the potential implications of Scottish independence for the banking and finance sector in Scotland? Rod MacLeod and Hamish Patrick of Tods Murray LLP consider the issues and say a Yes vote means banks and other financial institutions operating in Scotland would need to adjust to a new regulatory environment.
As banking and finance lawyers we advise most of the major UK clearing banks and other financial institutions operating in Scotland. An independent Scotland would mean a separate banking system in Scotland and, due to EU rules, most likely a separate financial services regulator and regulatory regime. While the framework for the Scottish banking system is already in place—and one would expect a Scottish government to adopt wholesale UK financial services regulations and legislation at the outset of independence—independence would require structural and operational alterations to the banking system in Scotland, and internally within Scottish and rUK financial institutions, to adapt to the new regulatory and business environment.
Decisions on currency (see below) and EU membership would also have a fundamental impact on our practice.
The majority of cross-border transactions we work on are subject to a combination of Scots and English law (depending on the jurisdiction of the entities involved) and the location of assets used as collateral for leveraged or structured finance transactions. While we would expect the type of Scots law that we advise in our practice area—Scottish security, trusts and finance contracts—to be largely unaffected by independence, thanks to the separate legal systems north and south of the border, we would expect increased ongoing work for Scottish law firms in relation to law that currently operates on a ‘UK’ basis (such as tax and certain regulatory laws), where UK-wide businesses may currently seek advice only in England.
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