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Contents
- Preliminary Material
- Main Text
- 1 The Best Rules for Non-Intermediated Securities
- Preliminary Material
- A Introduction
- B Terminology and Concepts
- C Creation of Non-intermediated Securities
- D Validity of a Transfer between the Parties
- E Effectiveness of a Transfer against the Issuer
- F Effectiveness of a Transfer against Third Parties
- G Horizontal Priority Rules
- H Vertical Priority Rules
- I Conflict of Laws
- J Conclusion
- 2 Financial Collateral:
- Preliminary Material
- A Introduction: Development of the Markets and the Legislative Framework
- B Pre-Crisis Regimes Tested: Overcollateralization
- C Pre-Crisis Regimes Tested: Collateral and Resolution of Banks
- D Concluding Remarks
- 3 On Close-Out Netting
- Preliminary Material
- A Introduction
- B A Brief Analysis of Close-out Netting
- C Principles, Policies, and the Practice of Close-out Netting
- D Harmonization of Close-out Netting Regimes
- E Concluding Remarks
- 4 The Geneva Securities Convention and Uncitral Texts on Secured Transactions Compared
- Preliminary Material
- A Introduction
- B Scope and Definitions
- C Creation and Third-party Effectiveness of Interests
- D Priority of Competing Interests
- (1) Priority under the Geneva Securities Convention
- (2) Priority under the CARIT
- (3) Priority under the Legislative Guide on Secured Transactions
- (4) Priority: comparative remarks and suggestions
- E Enforcement
- F Conclusions
- 5 Transfer of Intermediated Securities and Legal Certainty
- 6 Corporate Actions in the Intermediated System:
- Preliminary Material
- A Introduction
- B Voting Rights
- (1) Who votes?
- (2) How do voting rights flow?
- (3) Challenges in the exercise of voting rights
- (a) The onus on investors to instruct intermediaries to vote on their behalf
- (b) The intermediary cannot be compelled to appoint a proxy
- (c) Split voting
- (d) The record date differs from the actual voting date
- (e) Processing errors and ‘lost votes’
- (f) Limitation of voting rights in the case of collateral
- (4) Challenges in cross-border voting
- (5) Recommendations
- C Income Distributions
- D Requirements to Provide Information
- E Conclusion: Current Status and the Way Forward
- 7 Sufficient Securities, Segregation, and Loss Sharing
- Preliminary Material
- A Introduction and Terminology
- B Causes of Imbalances
- C Correction Methods
- D Holding and Availability of Sufficient Securities
- E Segregation of Securities
- F Loss Sharing in Insolvency
- G Conclusion
- 8 Harmonizing Insolvency Law for Intermediated Securities:
- Preliminary Material
- A Introduction
- B Insolvency-related Provisions of the Geneva Securities Convention: An Overview
- 8.14
- (1) Effectiveness of interests in intermediated securities in insolvency proceeding
- (2) Loss sharing in insolvency proceeding of relevant intermediary
- (3) Insolvency of operator or participant of securities clearing or settlement system
- (4) Set-off
- (5) Chapter V GSC: enforcement, top-up and substitution, and protection from avoidance
- (a) Scope
- (b) Recognition of title transfer collateral agreements
- (c) Enforcement of security collateral agreement
- (d) Protection of top-up and substitution in collateral provider’s insolvency proceeding
- (e) Protection from insolvency law timing rules in collateral provider’s insolvency proceeding
- (f) Opting out of Chapter V by declaration
- C Account Holder Claims in Relevant Securities Intermediary’s Insolvency Proceeding
- (1) Account holder priority: general
- (2) Avoidance of loss, loss sharing and distributional rules, and asset recovery
- (3) Recent experience: Lehman Brothers account holders under English and US law
- 8.60
- 8.61
- (a) LBI customer claims
- (b) LBIE client asset and client money claims
- (c) Lessons learned from LBI
- 8.72
- (i) Corporate group structure and planning
- (ii) Legal issues and reforms
- (aa) Plan requirement
- (bb) Margin, deposits, collateral, and customer securities held by third parties
- (cc) Balancing interests of clearing banks, clearinghouses, and participants with interests of customers
- (dd) Additional findings by the court
- (ee) Multiple funds of customer property
- (ff) Moderating the safe harbours and adjusting the treatment of close-outs
- (gg) Additional reforms for SIFIs: a role for a trustee in broker-dealer insolvencies
- (d) Lessons learned from LBIE
- D Selected Additional Issues
- E Conclusion
- 9 Regulation, Supervision, and Oversight
- Preliminary Material
- A Introduction
- B Function and Scope of Regulation, Supervision, and Oversight
- (1) Regulated activities
- (2) Regulatory policy objectives
- (3) The role of international standards
- (4) Supervision and oversight of central securities depositories and securities settlement systems
- (5) Supervision of intermediaries
- (6) Recovery and resolution regimes
- (7) Cooperation and coordination of authorities
- C Requirements for Central Securities Depositories and Securities Settlement Systems
- D Market-wide Recommendations and Requirements for Intermediaries
- E Concluding Remarks
- 10 Conflict of Laws Rules
- Preliminary Material
- A Introduction
- B Internationality of a Situation Involving Intermediated Securities
- C History of the Hague Securities Convention
- D Scope of the Hague Securities Convention
- E Choice of Law as the Primary Rule
- F Fall-back Rules
- G Factors to be Disregarded When Determining the Applicable Law
- H Third-party Rights
- I Relationship between the Hague Securities Convention and the Geneva Securities Convention
- J Problems of the Hague Securities Convention: The European Debate
- 1 The Best Rules for Non-Intermediated Securities
- Further Material
