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Termination of a Foreign Private Issuer's SEC Registration and Duty to File Reports Under Section15(d) of the Securities Exchange Act of 1934

The SEC had proposed rules to allow a foreign private issuer to terminate the registration of a class of equity securities under section 12(g) (dealing with exemptions and temporary exemptions from issuer registration requirements) of the Securities Exchange Act of 1934 (and thus stop filing reports required as a result of registration) and to cease reporting obligations regarding a class of equity or debt securities under section 15(d) (dealing with requirements for annual reports) of the Exchange Act.

A foreign private issuer may currently find it difficult to terminate Exchange Act registration and reporting obligations and can only suspend, but not terminate, a duty to report arising under section 15(d). The proposed rules would (1) permit the termination of Exchange Act reporting regarding a class of equity securities under either section 12(g) or section 15(d) by a foreign private issuer that meets specified criteria designed to measure US market interest for that class of securities, (2) permit a foreign private issuer to terminate its section 15(d) reporting obligations regarding a class of debt securities as long as it meets conditions similar to the current requirements for suspending its reporting obligations relating to that class of debt securities, and (3) seek to provide US investors with ready access through the internet to material information about a foreign private issuer that is required by its home country on an ongoing basis after it has exited the Exchange Act reporting system.

The SEC proposes eliminating rules that primarily condition a foreign private issuer’s eligibility to cease its Exchange Act reporting obligations on whether the number of its US resident security holders has fallen below the 300 or 500 person threshold. Instead, the SEC proposes to permit a foreign private issuer that meets certain conditions to terminate the registration of a class of equity securities under section 12(g) and its resulting section 13(a) (dealing with reports of issuers of securities registered pursuant to section) reporting obligations; and permanently terminate its section 15(d) reporting obligations regarding a class of equity or debt securities.

C ommittee Overview

The Banking Law Committee provides a worldwide forum for banking lawyers and other legal professionals within the banking community to address all sorts of practical and legal issues arising in commercial and regulatory activities in this context.

Additionally, the Banking Law Committee works with the following Committees to form the Financial Services Section :

Capital Markets Forum
Insurance
Investment Funds
Securities Law

Subcommittee Officers

Legal Opinions

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This Subcommittee was formed to consider the interpretation of certain formulations commonly used in opinions on finance transactions. Its first Opinion Report contained the comments of lawyers from 25 countries on a sample opinion . They analysed the validity of each opinion provision under their respective legal systems and discussed necessary modifications. This Opinion Report was subsequently published in 1987 and rapidly became the standard publication on legal opinions for lawyers advising on cross-border transactions. Further editions are published from time to time, the latest being Legal Opinions in International Transactions (4th edition, Kluwer Law). These reflect ongoing developments in this area.

The Subcommittee undertakes other comparative projects on various aspects of legal opinions, often culminating in sessions at the IBA Annual Conference. The latest was the completion of a questionnaire by lawyers in all the EU Member States on the Impact on Legal Opinions of EU Directives and Regulations on Insolvency, with a related session at the IBA Annual Conference in Prague (2005). The Chair of this Subcommittee welcomes suggestions for future projects and volunteers to participate in them.

Financial and Banking Law Conferences

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This Subcommittee organises the Financial and Banking Law Conferences, eg the 23rd annual International Financial Law Conference in Edinburgh in May 2006 cosponsored with the Securities Law Committee. These stimulating meetings offer a world class forum for banking lawyers and other professionals within the banking community to address the full spectrum of legal issues arising in both the regulatory and commercial context for financial institutions.

Clearing and Settlement of Financial and Securities Transactions

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This is a joint Subcommittee with the Securities Law Committee. Current projects of this Subcommittee include: presentations and panel discussions on issues and developments in on-line banking from business, regulatory and customer perspectives, including regulatory and licensing issues relating to establishment of an on-line bank; compliance with 'consumer' protection laws; electronic communications and developments relating to electronic signatures and electronic contracting; banking secrecy and data protection issues; oversight over key third party 'outsourced' relationships, customer authentication and digital signatures; information and system security issues; and issues in 'aggregation' of financial data.

Banking Regulation

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This Subcommittee focuses on the regulations of financial conglomerates as well as on new developments in the area of banking regulation. In recent years it has closely followed the preparation of the new Basel II Capital Accord and organised a conference in this regard.

For further information on any forthcoming or past IBA event, go to the conference homepage or contact the marketing department.

Innovations in Financing Transactions

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The Subcommittee's focus is, as its name suggests, on innovations in financing transactions. More specifically, the Subcommittee's activities focus both on specific transactional developments (such as structured financing, leasing, and securitisation), as well as topical areas of interest (such as the impact of European Monetary Union on standardised lending practices and documentation). The Subcommittee also seeks to focus attention on particular applications of innovating financing techniques to familiar models, such as the use of credit derivatives in securitisation transactions leading to the development of 'synthetic securitisation', as well as the use, generally speaking, of insurance type products in banking and capital markets transactions.

Project Finance

International Financial Law Reform

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Since being established in 1998, this Subcommittee, has worked to promote the reform of commercial law by encouraging practitioners in the field of international finance law to identify the need for reform arising from innovation or change in the financial sector and to achieve a consensus for the need for similar reform across a number of different jurisdictions. The Subcommittee aims to achieve this through publication of articles and commentaries, the hosting of working sessions at IBA conferences and elsewhere and other means such as maintaining links with other bodies active in this area of law reform (such as UNCITRAL, UNIDROIT, the European Commission, etc).

The Subcommittee initially carried out a survey of the law relating to the taking of security over property in most European countries and selected countries further afield. The result of these surveys have been published from time to time in Butterworths International Financial Law Journal.

Most recently the Subcommittee, through a specially convened Working Party, has been working on identifying and agreeing a definition for 'legal risk' in the context of the new Basle II capital adequacy regime.

The Subcommittee continues to meet and work actively in the fields of comparative law reform as well as in the context of law reform initiatives being proposed by UNCITRAL and UNIDROIT.

Committee Conferences

The Germany, Switzerland and Austria Subcommittee held a Conference on "Trading of bank loans". The Conference took place on Friday, 18 November 2005, from 4pm to 8pm CET at Dresdner Bank AG, Jürgen-Ponto-Platz 1, 60301 Frankfurt am Main.

Download the Conference report.

Committee Publications

The Banking Law Committee produces two newsletters a year.

Committee members can access the latest issue of the newsletter.

In association with the IBA, two books were published by Oxford University Press in Spring 2006:

Set-off Law and Practice: An International Handbook
International Acquisition Finance: Law and Practice.

For further details of all IBA publications including books, journals, newsletters, conference papers and free guides and materials go to the publications homepage.

Members

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