• MiFID II, Research and Extraterritoriality: The SEC, European Commission and FCA Solution

    15 Nov 2017

    On October 26, 2017, the US Securities and Exchange Commission, European Commission and the UK Financial Conduct Authority released, in a coordinated manner, a series of significant orders and guidance to address some of the most problematic extraterritorial effects of the EU’s new financial regulation, MiFID II.

  • Continuity of Contracts and Business on a “Hard” Brexit: Human Rights and Reverse Solicitation to the Rescue!

    31 Oct 2017

    Various industry bodies and regulators, including the Bank of England and Bafin, have recently raised fears that there will be a cliff edge on Brexit for certain types of financial contract, most notably derivatives and insurance, due to the loss of passporting rights.[1] This note explains why, in a no-deal Brexit scenario, this should not be the case. The loss of “passporting” rights and other freedoms under EU treaties should neither frustrate existing contracts nor render the performance of existing cross-border UK-EU contracts illegal nor cause them to be void or voidable.

    We discuss how the right to property under the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights, and the doctrine of “acquired rights” under public international law, protect contractual rights. The protections afforded will shield many contracts entered into between UK and EU-27 parties before Brexit and should therefore permit such contracts to be performed to their full extent in a hard-Brexit scenario. These human rights concepts will mean that, despite the removal of the financial services “passport” upon Brexit, any licensing requirements that spring into force on Brexit for parties performing existing contracts—and any other legislative changes that frustrate contracts—would be contrary to the human rights and other protections afforded to contracts entered into before Brexit.

    UK-based and EU-based businesses should be cognisant of these protections and, moreover, should take additional steps to future-proof their existing contractual agreements before the UK withdraws from the EU so that they can continue to provide a full range of services to their customers.

    Our previous client note on Brexit and the free movement of natural persons considered whether the concept of “acquired rights” would safeguard free movement rights post-Brexit. This note now evaluates the concept, and human rights law, in the context of businesses and contracts, with particular reference to financial sector contracts.

  • The U.S. Government Accountability Office Determines That 2013 Leveraged Lending Guidance Is a Rule

    26 Oct 2017

    On October 19, 2017, the United States Government Accountability Office (GAO) issued an opinion  determining that the 2013 Interagency Guidance on Leveraged Lending, issued jointly by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation, constitutes a “rule” under the Congressional Review Act (CRA). The GAO’s determination was issued at the request of Senator Pat Toomey (R-PA), who inquired by letter whether the 2013 Guidance should be subjected to Congressional approval as a rule under the CRA.

  • Video: Chile’s New Electricity Highway

    6 Sep 2017

    Partners Cynthia Urda Kassis and Alexandro Padrés (both New York-Project Development & Finance) discuss how the Transmisora Eléctrica del Norte S.A. (TEN) financing project transformed Chile’s transmission development, aligning infrastructure to policy objectives by creating an opportunity for renewable sources to be better integrated into the market.

  • New Case Law on Upfront Fees in German Loan Agreements

    24 Aug 2017

    On 4 July 2017, the German Federal Court of Justice (BGH)—in two separate cases—held that pre-formulated agreements on work fees that are payable independent from the term of the underlying loan and agreed between a financial institution and an entrepreneur (Unternehmer) are invalid.

  • Financing Hotels in the United States: Key Considerations

    29 Jun 2017

    Hotels differ from other types of stabilized properties in several major ways. The purpose of this article is to highlight how the distinguishing factors impact the way that owners and lenders approach the negotiation of key elements of hotel financings in the United States.

  • Leveraged Lending: Summary of ECB Guidance compared to US Guidance

    21 Jun 2017

    In May 2017, the European Central Bank published its final Guidance on Leveraged Transactions (the “ECB Guidance”). The ECB Guidance will come into effect six months after publication and will apply to all “significant credit institutions” supervised by the ECB. When drafting its guidance the ECB took into account comments from market participants, many of which focused on aligning the ECB Guidance with the Interagency Guidance on Leveraged Lending (the “US Guidance”) promulgated by the several departments of the United States government in March 2013. 

  • ECB Publishes Final Guidance on Leveraged Transactions—
    What This Means for Banks

    22 May 2017

    After a period of public consultation, the European Central Bank (the “ECB”) published its final Guidance on Leveraged Transactions (the “Guidance”) on 16 May 2017 . Twenty-four organisations (comprising credit institutions and market associations) commented directly on the ECB’s draft guidance. Most comments focused on ensuring consistency between the ECB’s Guidance and the 2013 Interagency Guidance on Leveraged Lending in the US (the “US Guidance”) and ensuring market viability in Europe. We wrote about potential issues raised by the ECB’s draft guidance in our last briefing; here, we discuss the most relevant changes that made the final edit and, in addition, certain points that did not change despite representations from participants during consultation on the draft guidance.

  • Taxation of Restructuring Profits in Germany - Tax Administration and Legislator Swiftly React to a Recent Detrimental Decision of the German Federal Fiscal Court

    5 May 2017
    A recent decision by the German Federal Fiscal Court (BFH) has caused significant concerns in the restructuring community because it will severely complicate future restructurings in Germany or even make them impossible overall.
  • Clancy, Ryan and Sherman Write Article on the Hague Securities Convention

    5 May 2017

    Partner Patrick Clancy (London-Finance) and of counsel Reade Ryan and Steven Sherman (both New York-Finance) have authored an article titled "Hague Securities Convention - The Right Way Forward" that has been published in the May 2017 edition of International Financial Law Review (IFLR).

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