Banking Law publications

Banking Law Committee Publications

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From the Co-Chairs - February 2019
A message from Giuseppe Schiavello and Michael Steen Jensen.
The role of finance in achieving a well-performing economy that delivers on environmental and social goals as well
Major investments are needed to transform the EU economy to deliver on climate, environmental and social sustainability goals, including the Paris Agreement and the UN Sustainable Development Goals. Sustainable finance makes sustainability considerations part of financial decision-making. Integrating sustainability considerations will mitigate the impact of natural disasters as well as environmental and social sustainability issues that can affect the economy and financial markets.
Who’s who in transactions in distressed financial assets? The originator, the investor and the regulator’s perspective
The primary driver behind the decrease in the banking system’s non-performing loans (NPL) ratio is regulatory and market pressure, which is forcing originators to divest. There is a growing appetite for such assets among various investors, including those in the United States who are seeking attractive returns in a low-yield environment. As Italy is one of the most active jurisdictions, local examples from Italy were discussed by the panellists.
CJEU: PSD does not apply to certain online savings accounts
Recently the Court of Justice of the European Union ruled that certain types of online savings accounts are not considered to be ‘payment accounts’ pursuant to the Payment Services Directive (PSD) and thus the PSD does not apply to them. This article explains the reasoning behind the decision and its practical implications.
Lending by Italian securitisation vehicles
While securitisation was introduced into the Italian market many years ago (with its cornerstone act issued in 1999), the possibility for Italian securitisation special purpose vehicles (SPVs) to grant loans is still in its infancy. The purpose of this article is to provide a brief overview of the conditions required for Italian SPVs to grant loans.
Myanmar insolvency laws and the rights of secured creditors
This article is aimed at providing insight on the insolvency laws and related rights available to secured creditors in Myanmar. The present insolvency legislative framework is antiquated and is expected to be replaced with a draft law, which is under consideration by the Myanmar government. The draft law aligns insolvency with international standards and sets a high bar for good governance, accountability, and transparency. The need of the hour is to enact the draft law with due compliance mechanisms in place.
India’s IL&FS crisis
Recently, the Indian financial market was shaken when India’s leading finance conglomerate, Infrastructure Leasing and Financial Services Limited (IL&FS) made disclosures of defaults in meeting its payment obligations. The disclosure was a setback for the investors of IL&FS. This was followed by a series of defaults by some of IL&FS’s group entities. This article examines the saga.
From the Co-Chairs – September 2018
A message from Ewa Butkiewicz and Giuseppe Schiavello.
Compounding interest under the current Italian law framework
Compounding interest (also known as the capitalisation of the interest or the ‘interest on interest’) is the process by which interest accrued, due and unpaid by a debtor is incorporated into the principal, which is the basis over which any interest agreed between the creditor and debtor is calculated.
What legal framework for Fintechs?
Financial technology, or so-called Fintech, is defined as any technological innovation that aims to compete with traditional finance methods in the delivery of financial services.
Fondiario mortgage loans under Italian law and case law
The purposes of this article are to: provide a brief overview of the concept of ‘finanziamento fondiario' (a peculiar type of real estate mortgage loan under Italian law), and discuss the legal consequences triggered if the ratio of: (1) the amount of a finanziamento fondiario to (2) the value of the underlying real estate asset securing the finanziamento fondiario exceeds 80 per cent.
Virtual perfection: digital assets on a blockchain
The United States system for recording security interests in personal property as collateral (which is codified primarily in Article 9 of the Uniform Commercial Code (UCC), in effect in all US states) a very good candidate for blockchain technology.
Allocation of supervisory responsibilities to ensure compliance with AML legislation in the EU
The European Central Bank (ECB) supervises banks in the euro area and in countries that choose to participate in the Single Supervisory Mechanism (SSM).
Ukraine: new cram-down mechanism to facilitate debt restructurings coming
The economic turbulence encountered by Ukraine and its businesses recently prompted an increase in interest in and more detailed attention paid to the debt restructuring mechanisms available to distressed Ukrainian borrowers and their creditors.
Central Bank of Brazil completes the regulatory framework for the issuance of secured real estate bonds
Financing the real estate segment has always been essential for the development of the real estate market in Brazil, where the certificates of real estate receivables (certificados de recebíveis imobiliários (CRIs)) and real estate credit bonds (letras de crédito imobiliário (LCIs)) are traditional and widely used funding sources.
Debt restructuring in India: ushering in a new era
Banks and financial institutions in India have seen a dramatic rise in non-performing assets (NPAs), with gross numbers of NPAs rising approximately 125 per cent between 2001 and 2017.
Challenging developments in Portugal: an overview of PSD2 and Fintech
Important changes are expected to take place during 2018 in the payment services market in Portugal.
Cryptocurrency offerings, exchanges and payments in France: towards a mix of hard and soft law
The French market has recently witnessed fast-growing interest from entrepreneurs and investors in fundraising and trading in cryptocurrencies.
Main changes introduced by the newly adopted Swiss financial services regime for portfolio managers
The new legislative package regarding the provision of financial services in Switzerland has finally been adopted and is expected to take effect on 1 January 2020.
Regulation of digital financial technologies in the Russian Federation
Until autumn 2017, there was no regulation in Russia relating to financial technologies, especially dealing with cryptocurrencies, initial coin offerings (ICOs) and smart contracts.
Structuring of bank charges in Germany
Driven by recent decisions rendered by the German Federal Court of Justice (Bundesgerichtshof (BGH)), in the last two years, the German banking market has been undergoing serious changes in the area of law relating to bank charges.
Recharacterisation of repurchase and reverse repurchase agreements: the Nigerian perspective
Repurchase agreements ('repos') are undertakings where a party buys securities from a counterparty for a specified price with an agreement that the counterparty will repurchase the securities at a later date.
Banking Law Committee report on Young Lawyers session - 35th IBA International Financial Law Conference, Amsterdam
The theme of the session was ‘Live long and prosper’.
Art Finance - 35th IBA International Financial Law Conference, Amsterdam
The Art Basel & UBS Report estimates that global sales in the art market increased by 12 per cent from 2016 to 2017 to $63.8bn.
Bail-inable bonds: panacea, placebo or Pandora’s box? - 35th IBA International Financial Law Conference, Amsterdam
Bail-inable bonds are debt securities which, in a resolution of a bank, can be written down or converted into equity by the competent regulator to absorb losses and facilitate the recapitalisation of the bank in the event of resolution.
Acquisition and leveraged financing: continuing the conversation - 3rd IBA Asia-based International Finance Law Conference, Hong Kong SAR
This session was a sequel to the session on acquisition and leveraged financing at the 2nd IBA Asia-based International Finance Law Conference in Singapore.
Evolution of online payment systems and lessons for Asia - 3rd IBA Asia-based International Financial Law Conference, Hong Kong SAR
The panel discussed online payment systems, in particular the different models and challenges, regulatory oversight, specific risks relating to money laundering and fraud, the role of cryptocurrencies and the challenges ahead.
Securitisation in India – recent trends and challenges
This article deals with contemporary trends in the securitisation market in India, reasons for growth and existing and future challenges in this market.
Zambia: newly enacted netting legislation permits enforceability of the ISDA master agreement
This article looks at legislation that Zambia has passed in the banking sector and insolvency fields to permit netting after the insolvency of a Zambian counterparty party to an ISDA Master Agreement.
Agility or redundancy: regulatory relevance in the age of distributed ledger technology.
This article seeks to explore and make sense of the top compliance and regulatory concerns that have come to the fore in an ever-accelerating era of technology, looking in particular at blockchain and the global regulatory response to it
Navigating the path between a rock and a hard place: the role of the target director in distressed M&A
This article reports on two panel discussions covering directors’ duties relating to insolvent companies and the role of the directors of target companies involved in distressed sales and other restructuring transactions.
Is a ‘demand for payment’ a sine qua non condition under Mauritian banking law?
The author answers the following questions: What is a demand of payment? When does a demand of payment become necessary? What are the effects of a demand for payment? Is a creditor entitled to take action under the charge instrument against its debtor without making a demand for payment?
Ukraine: recent developments fostering cross-border lending
This article looks at the recent relaxing of currency control restrictions and improving regulations relating to cross-border FX loans in Ukraine
Initial coin offerings in Switzerland – towards a regulated legal and tax environment
This article looks at the legal technicalities of an Initial Coin Offering (ICO) in Switzerland. These usually involve Bitcoin or Ethereum, but can involve other crypto or even flat currencies
Why resolving Islamic finance disputes through international arbitration makes sense - Banking Law Committee, March 2018

The Islamic conflict resolution mechanism’s inclusion of arbitration is a testament to the advantages arbitration has to offer as an alternative dispute resolution tool. The article discusses below some of the reasons for which the author believes arbitration is ideally suited in relation to resolving disputes arising out of Islamic finance transactions.
Russia: a review of new measures aimed at preventing the insolvency of credit organisations - Banking Law Committee, March 2018

The authors provide a brief overview of the legislation amendments introduced by the Russian Federal Law No 84-FZ of May 1 2017 and make examples confirming that the new introduced procedure is being actually applied.
Claims arising from the current handling of cum/cum trades by the German tax authority - Banking Law Committee, March 2018

Cum/cum trades where stock is transferred from a foreign country to Germany to benefit from tax privileges has recently drawn public attention in Germany and abroad. German financial institutions have in the past enabled these deals to benefit others. This article seeks to determine to what extent these German institutions have a right to amend or terminate existing contracts or to recover their losses.
Macau payment services updates in 2018: legal implications - Banking Law Committee

The financial system framework of the Macau SAR was put in place around a quarter of a century ago and remained largely unchanged. Over the years, the banking and financial services industry has played it traditionally, conventionally and standardly. But lately a series of actions were taken in relation to payment service and the legal-financial communities were reignited with excitement.
Fintech innovation: combatting money laundering and the financing of terrorism - Banking Law Committee, February 2018

Fintech/Regtech may offer solutions to some of the current regulatory challenges, including on know-your-customer and anti-money laundering and combating the financing of terrorism issues. The widespread adoption of new technologies offers advantages but also poses risks.
Italian Court of Cassation solves conflict on supervening usury - Banking Law Committee, February 2018

The Italian Court of Cassation finally solved a long-debated issue regarding ‘supervening usury’, that is, where interest is below the usury threshold at the start of the loan, but exceeds such thresholds at a later stage. In the Court of Cassation’s view, lenders should assess compliance with usury rates only at the time when the loan agreement is entered into.
Banking Law News - August 2017

This update contains reports from the 34th IBA International Financial Law Conference in Tallinn and articles covering the new EU rules for dealing with central counterparties, how Russia is continuing to strengthen its banking system and a look at how Italy has made things easier for alternative lenders.
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Banking Law Newsletter - May 2017

The Committee’s May newsletter contains a selection of session reports from the recent IBA Annual Conference in Washington, DC, as well as features on key issues affecting the financial sector worldwide.
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Banking Law Newsletter - August 2016

The Committee’s August newsletter contains a selection of session reports from the recent 33rd International Financial Law Conference in Athens, as well as features on key issues affecting the financial sector worldwide.
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Banking Law Committee newsletter, May 2016

This edition of the Committee's newsletter contains a number of updates on global banking law topics, including MiFID II, internet finance in China and developments in Latin America, plus reports from the 2015 IBA Annual Conference in Vienna. It is free to all members of the IBA Banking Law Committee - click here to login and download.
Banking Law Committee newsletter, September 2015

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Banking Law Committee newsletter, March 2015

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Banking Law Committee newsletter, September 2014

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Banking Law Committee newsletter, February 2014

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Banking Law Committee newsletter, July 2013

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Banking Law Committee newsletter, December 2012

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Banking Law Committee newsletter, May 2012

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Set-Off Law and Practice: An International Handbook 2nd Edition
Consulting editor: William Johnston, Thomas Werlen
A joint project with the IBA, provides an invaluable guide to the application and practice of the rules of set-off in over 30 jurisdictions, spanning Europe, Asia and the US.
International Acquisition Finance 2nd Edition
Consulting editor: Gwendoline Griffiths
This new edition of International Acquisition Finance builds on the success of the first edition in providing a comprehensive and comparative analysis of the law and practice of acquisition finance from the viewpoint of leading lawyers in over 20 different jurisdictions including the UK, China, France, Germany, the Netherlands, and the USA. New jurisdictions for this edition include Hong Kong, India and Poland.
Neate: Bank Confidentiality
Consulting editor: Francis Neate, Gwendoline Griffiths
Bank Confidentiality deals with the topical subject of the duties or obligations of confidentiality or secrecy which banks owe to their customers in 37 countries around the world.
Legal Opinions in International Transactions (4th Edition)
Consulting editor: Michael Gruson, Stephan Hutter, Michael Kutschera
Sponsored by the Banking Law Committee (E) of the International Bar Association's Section Of Business Law, this is the fourth edition of a definitive work: the result of extensive discussions at many IBA conferences of lawyers worldwide who provide commentary on a multitude of issues which may arise in the process of rendering legal opinions in international transactions.