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A new title called The Law & Practice of True Sales by Nicholas Grandage and Daniel Franks, both partners at Norton Rose Fulbright LLP will be available to buy from 7 December 2015 at www.lexisnexis.co.uk/store/uk.
Full product details available below.
Nick Grandage and Daniel Franks both partners at Norton Rose Fulbright LLP discuss the major developments over the last twelve months in finance law.
Daniel - In a word, regulation. While increased regulation has affected all financial markets (most notably, EMIR and Dodd Frank in the context of OTC derivatives), the repo markets are finding themselves at the centre of a range of regulatory
Some of the regulatory reform is aimed specifically at repos or, to be more precise, at the “shadow banking” sector which regulators are concerned has potential to be of systemic importance while previously having been subject to less regulation.
For example, the Securities Financing Transaction Regulations require for the first time the mandatory reporting of repos (and other transactions), with a view to promoting transparency in the market. They also seek to impose certain limits
on rights of reuse over collateral, which has caused much debate given how fundamental such a right is in the financial markets (thankfully, the final draft appears to adopt an approach that is somewhat more consistent with the way in which the markets
Basel III and CRD IV/CSDR have also had an impact on the profitability (and feasibility) of repos, to such an extent that some market participants have been looking carefully at the way in which they use repos, and whether they can be profit centres in
their own right of simply support other businesses of the institution.
Other types of regulatory reform appear to have caught repos inadvertently – there was some debate when the first draft of the CSD Regulations were published as to whether the mandatory buy-in rules were intended to capture repos, rather than simply
spot sales of securities. Again, this has required institutions to look at the way in which the repo model works, and to adapt accordingly. Some have also questioned whether pre- and post-trade transparency for repos under MiFID II / MiFIR
is deliberate and appropriate.
Whether for better or worse, there is still more to come – we still await regulations for the mandatory imposition of minimum haircuts, which will again put repos in the spotlight.
Nick - Building on Daniel’s point above, a number of regulatory developments have led to changes in transactional finance documents. Sanctions have been important again this year, and it is hard to see that changing. EU
and US sanctions relating to Russia have been implemented, and there have been developments in relation to Iranian sanctions. The BRRD will drive changes to contractual wording in relation to the bail in provisions, in particular where
contracts are governed by non-EU law.
There has been a lot of discussion this year in relation to the manner in which commodity repurchase transactions are structured as well as related warehousing issues. Part of that has been analysis of the true sale nature of such transactions as
well as whether delivery of goods can take place when a third party holder of the goods confirms that it holds them for the new owner. In particular, is that a mandatory provision or can the parties contract out of it? We have also
had important Supreme Court decisions relating to the determination of damages for breach and in relation to penalty clauses. The latter decision will bring greater certainty to commercial contracts and provide comfort to financiers in a number
of areas such as project finance. English law has until now outlawed clauses providing for penalties on breach of contract, unless the amount was a genuine pre-estimate of loss. That test has changed, so that now the test is whether the
provision is out of all proportion to the any legitimate interest of the innocent party. I think that will make the law in a number of areas, such as take or pay contracts, clearer.
In relation to receivables, the government announced that it would go ahead and change the law so that contractual provisions prohibiting assignment of invoices would be ineffective. That’s good news for SMEs and others looking to raise finance
against invoices, but does raise questions as to whether the law should restrict parties’ freedom of contract. We await the detailed provisions, as we anticipate from the consultation that the proposed law will, like many, have some unintended
consequences. What it does mean is that some structured financing transactions involving true sales of receivables will be more robust.
We’ve noticed that there is an increasing tension between legal rules and accounting treatment in relation to the balance sheet treatment of certain structured financings, where there is tension between the legal analysis of a true sale transaction
and whether the accounting is consistent with that.
It’s a concept primarily of importance in structured financings like securitisations and receivables purchases. It relates to the possibility that the courts will treat a purported outright sale as an attempted secured loan, and recharacterise
the transaction. There is a body of case law in respect of a number of financing structures, but it is an area that is often treated with a level of wariness by commercial entities that perhaps it doesn’t deserve. Hopefully we have
clarified the law that there is.
The Law & Practice of True Sales is available to buy at: www.lexisnexis.co.uk/store/uk
Product Code: LPTS
Publication Date: 7 December 2015
0330 161 1234