The UK Government has amended the Building Societies Act to allow the societies and their subsidiaries to become clearing members. EMIR’s Category 4 clearing obligation will apply from 21 December 2018, comprising all 44 of the UK’s building societies, mandating the central clearing of prescribed derivatives. The amendment is made to section 9A (1)(c) of […]

Property Alliance Group Ltd (“PAG”) v Royal Bank of Scotland plc (“RBS”) [2018] EWCA Civ 355. On 2 March 2018, the Court of Appeal nailed down the coffin lid on the first LIBOR-related swaps miss-selling case, between Property Alliance Group and the Royal Bank of Scotland. PAG’s leave to appeal was dismissed. Initial Case PAG’s […]

ISDA has released new model clauses and non-binding guidance in respect of Section 13 (a) and (b), dealing with choice of Governing Law and choice of court. The 15 page 2018 Choice of Court and Governing Law Guide (“the Guide”) contains the following: New exclusive jurisdiction model clauses. One in favour of the English courts, another […]

Although we are reluctant to contribute to the now well-established industry of Brexit crystal ball-gazing, there are a number of documentation issues in which there is at least enough certainty to formulate the questions; definitive answers will attend the daily twists and turns of politics. These issues include: the future status of trade lifecycle events, […]

Risk magazine reports that the Bulgarian Presidency of the Council of the EU[1] has suggested a reduction in the proposed “BRRD 2” pre-resolution stay period to two days, along with a recommendation that derivatives be included within the power’s scope. The Commission’s November 2017 proposal called for a pre-resolution power of moratorium, enabling national authorities to […]

The High Court has clarified when litigation privilege applies to documents created during an investigation. The decision is particularly relevant against the background of newly-empowered Regulators, emboldened both by political mandate and extended armouries of response. In Bilta (UK) Limited (In Liquidation) & Ors. (Claimant)(“Bilta”) and Royal Bank of Scotland & Anor. (Defendant) (“RBS”), the […]

The FCA and the Information Commissioner’s Office (ICO) yesterday published a joint statement emphasising that non-compliance may result in both agencies knocking on the offending institution’s door. The update is short and worth reading in full; however, the main takeaways are summarised below for convenience: The GDPR does not conflict with the FCA Handbook GDPR […]

Overshadowed by the MiFID 2 regulatory colossus, the start of the year also marked the coming into force of the EU’s Benchmark Regulation (BMR). As well as defining and categorising benchmarks, the BMR lays down obligations that affect both administrators and users, requiring firms to prepare written plans detailing their response to the cessation, material […]

On 5 February the five US Prudential Regulators jointly issued a proposal to ensure that certain mandatory amendments to legacy contracts would not trigger their inclusion under the margin regime. The vast majority of jurisdictions contain anti-evasion measures in their margin rules, to the effect that material amendments to pre-margin, legacy trades will act to […]