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NEWS
Eleven financial services trade associations have issued a joint statement urging EU policymakers to seize the opportunity presented by the Market Integration and Supervision Package (MISP) to introduce ‘durable improvements’ to the EU’s regulatory and supervisory framework. They say improving how financial services legislation is developed, implemented and supervised is essential to deliver the ambitions of the Savings and Investments Union. Key priorities include reducing legal uncertainty, ensuring robust cost–benefit analysis and avoiding unnecessary complexity to support innovation and attract global investment to EU capital markets.
GLOSSARY
A company’s financial year is determined by reference to its accounting reference period: it will be the same as that period, save that the directors may determine that the financial year ends on a day not more than seven days before or after the end of the accounting reference period. A company’s accounting reference period is determined by reference to its accounting reference date: it ends on that date.
NEWS
The UK Parliament’s Financial Services Regulation Committee has warned that a deeply entrenched culture of risk aversion and the high cost of compliance among UK financial regulators are undermining the sector’s competitiveness and growth. The Committee’s report, 'Growing pains: clarity and culture change required,' criticises both the Financial Conduct Authority’s and the Prudential Regulation Authority’s current approaches—highlighting issues such as disproportionate regulatory burdens, uncertainty in the application of the Consumer Duty, and the misalignment of capital requirement regimes. The report calls for regulators to embrace a more tailored and proportional approach, to establish measures such as a joint cost of compliance working group, and for clarifications on disputes arising from Consumer Duty implementations. Additionally, it urges the government to provide clear directions that align regulatory practices with the broader objective of economic growth, including an independent review of the cumulative compliance costs and enhanced financial education initiatives. These measures are seen as vital to preserving the global competitiveness of a sector that contributes over £200bn to the UK economy.
GLOSSARY
Generic term for receivables financier, asset based lenders or other types of lenders.
PRACTICE NOTES
Commercial loans are the traditional source of financing for most projects in the UK and abroad but in certain circumstances, eg when liquidity in the market is squeezed, sponsors are more inclined to look to alternative sources of funding. One alternative source of funding is the bond market. What is a project bond? A bond is a form of debt security, and a debt security is a document which evidences a debt or investment (see Practice Note: Key features of the debt capital markets—What is a debt security?) A project bond is a bond which is issued to finance the whole, or part of, a project. Project bonds can be used: • as the only source of financing for a project • as one of multiple sources of financing for a project, eg alongside bank debt, or • to refinance existing bank finance for a project (typically after the construction phase of a project—see Practice Note: Project finance—meaning of completion and its effect) Why would a sponsor finance a project
PRACTICE NOTES
The buyer may fund the acquisition by way of: • cash: from its internal cash resources (or those of its parent or other group company) • debt financing: raising capital from a bank loan or by issuing lenders with debt securities (including loan notes), or • equity financing: raising capital from a further offer of its equity securities, in the form of an open offer, rights issue, cash placing, cash box placing or vendor placing Debt or equity? Debt financing Raising capital for an acquisition through debt finance can broadly be split into two main types: • bank loans: various types of facility (generally either a term loan facility or revolving credit facility) provided by either a single lender (bilateral loan) or a syndicate of lenders (syndicated loan) • debt securities: financial instruments issued to create or evidence capital indebtedness, most commonly in the form of loan notes but also in many other forms (warrants, bonds etc, as summarised below) Equity financing Raising capital for an acquisition
PRACTICE NOTES
This Practice Note covers the extent to which interest expenditure is deductible for income tax payers and corporation tax payers investing in UK real estate. The tax treatment of interest payments for dealers in UK real estate is outside the scope of this Practice Note. A typical real estate investment involves a taxpayer acquiring property with a view to holding it for a relatively prolonged period of time and earning income from renting out the property to tenants. Where, for example, property is acquired for re-development with a view to selling it at a profit, this is likely to amount to trading (or dealing) in real estate rather than investment. For more details, see Practice Note: Dealing in property or property investment? As a general rule, interest expenditure on debt to finance a UK property business is only deductible (if at all) in computing income profits (ie profits derived from rental income) and is not deductible in computing a capital gain upon disposal of property. The deductibility of interest payments depends
PRACTICE NOTES
Swap arrangements are often entered into in connection with financing UK real estate, most commonly to hedge against interest rate fluctuations. For example, if interest on debt used to finance UK real estate is payable at a floating rate, the borrower may wish to enter into an interest rate swap under which it makes fixed rate payments and receives floating rate payments from its swap counterparty (which it uses to meet its financing liabilities). Although this Practice Note focuses mainly on interest rate swaps, swap arrangements in a property context can cover an array of subject matters, including fluctuations in foreign exchange rates, property prices and rental income. This Practice Note summarises the key considerations in determining how investors in UK real estate are taxed in relation to their hedging swap arrangements. The tax treatment of swaps for dealers (ie traders) in UK real estate is outside the scope of this Practice Note. A typical real estate investment involves a taxpayer acquiring property with a view to holding it for a relatively
PRACTICE NOTES
CASE HUB Archived—This archived case hub reflects the position at the date of the abandonment of the transaction on 2 February 2021; it is no longer maintained. See further, timeline and commentary Case facts Outline European Commission merger investigation into the proposed acquisition by Fincantieri of 50% stake in Chantiers de l’Atlantque (Case M.9162). The transaction involves horizontal overlaps in markets for cruise shipbuilding. Latest developments On 2 February 2021, the notification to the Commission was abandoned and withdrawn. Parties Fincantieri S.p.A: Fincantieri is an Italian shipbuilding group, majority-owned by Cassa depositi e prestiti, which is in turn majority-owned by the Italian State. Fincantieri is mainly active in the design and manufacture of merchant ships, military ships, and hightech off-shore vessels. It also provides services to shipowners, and designs and manufactures systems and components. Chantiers de l’Atlantique (CAT): CAT is a French shipbuilding company majority-owned by the French State through its Agence des participations de l'État. CAT is mainly active in the design and manufacture of passenger ships. It also provides services to shipowners.
NEWS
The Cabinet Office has issued a new Procurement Policy Note (PPN 08/20): Introduction to Find a Tender, to help contracting authorities prepare for changes taking effect at the end of the Brexit transition period. PPN 08/20 provides information on the UK’s e-notification service, which will be operational and applicable for new public procurement exercises from 11 pm on 31 December 2020 (IP completion day). The guidance also contains a set of frequently asked questions about the Find a Tender Service (FTS) and a flowchart to help authorities work out where to publish their procurement notices going forward. Contracting authorities should be prepared to apply the provisions of PPN 08/20 for new procurements from IP completion day. Existing rules and notification requirements will continue to procurements launched before IP completion day.
GLOSSARY
In legal practice, a finding is a conclusion of fact or law reached by a court, tribunal or other decision-maker after considering the evidence and submissions. Findings determine what the decision‑maker accepts as having happened (findings of fact) and, where relevant, how the law applies to those facts (findings of law or mixed fact and law). The term “finding” is broadly descriptive rather than usually defined in statute. It appears frequently in case law across England and Wales, Scotland, Northern Ireland and Ireland, and its usage is broadly consistent in civil, criminal, public and employment law. Key features include that findings: - must be based on evidence properly before the decision‑maker; - are subject to appellate review, often on limited grounds, especially for findings of primary fact; and - underpin orders, judgments and remedies. In appellate practice, challenges often focus on whether findings were open to the tribunal on the evidence, whether reasons were adequate, and whether any error of law infected the findings. In Scots procedure, reference is also made to “findings in fact” and “findings in fact and law” in written judgments and interlocutors.
GLOSSARY
A finding of fact is a court’s determination, based on the evidence, of what actually happened in a case, as distinct from the court’s conclusions on the law. It covers issues such as whether a party did a particular act, what was said in a meeting, or whether a witness is credible. In civil and criminal proceedings across England and Wales, Scotland, Northern Ireland and Ireland, findings of fact are generally made by the trial judge, or by a jury where one is empanelled. They are usually recorded in a judgment, stated case, charge to the jury, or written reasons. “Finding of fact” is a descriptive term rather than a formally defined statutory concept, though its role and the limited scope for appellate interference are well developed in case law in all four jurisdictions. Appellate courts will not normally disturb findings of fact unless they are plainly wrong, unsupported by evidence, or affected by an error of law or procedure. Findings of fact underpin the application of legal rules, assessment of damages, sentencing, and the application of appellate standards such as “perversity” or “manifest error”.