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What are the potential implications of Scottish independence on the financial services sector in Scotland? Rod MacLeod and Hamish Patrick of Tods Murray LLP consider the issues and say a change in currency--assuming agreement couldn't be reached on currency union--would have profound implications.
How could your financial services practice area be affected by an independent Scotland?
As financial services lawyers we advise a wide and diverse array of financial services firms and other institutions operating in Scotland. An independent Scotland would mean, among other things, a separate financial services regulator due to EU rules and consequently a separate regulatory system in Scotland. While one would expect a Scottish government to adopt wholesale UK financial services regulations and legislation at the outset of independence, independence would require Scottish and rUK (rest of UK) financial service firms, institutions and businesses to adapt to the new regulatory and business environment.
What cross-border issues, laws, regulators and courts currently affect your practice area?
The majority of cross-border transactions that 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 relevant assets and rights. While we would expect the type of Scots law that we advise in our practice area (eg Scottish finance contracts, security and trusts) to be largely unaffected by independence--thanks to the separate legal systems north and south of the border--we would expect there would also be 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.
How long would it take Scotland to put a financial services regulator in place?
While an independent Scotland would need its own financial services regulator due to EU rules, if it could negotiate a currency union and/or agree to share the services of systemically
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