Property Rights in Investment Securities and the Doctrine of Specificity

Overview

The swift developments within the financial markets over the last 20-30 years conflict with traditional property law structures and have caused a great degree of legal uncertainty. This book evaluates the requirement for specificity as a criterion for property rights in securities evidenced by electronic entries made on securities accounts. Three principal questions are examined:
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Overview

The swift developments within the financial markets over the last 20-30 years conflict with traditional property law structures and have caused a great degree of legal uncertainty. This book evaluates the requirement for specificity as a criterion for property rights in securities evidenced by electronic entries made on securities accounts. Three principal questions are examined:
Read More Show Less

Product Details

  • ISBN-13: 9783540859031
  • Publisher: Springer Berlin Heidelberg
  • Publication date: 1/30/2009
  • Edition description: 2009
  • Edition number: 1
  • Pages: 220
  • Product dimensions: 9.21 (w) x 6.14 (h) x 0.56 (d)

Meet the Author

Erica Johansson is a partner in Delphi’s Banking and Finance Group. She has extensive experience in advising leading financial institutions on derivatives and structured finance transactions, including advising on credit, equity, FX, index linked and OTC derivatives, hedging aspects of securitisation and project finance transactions and derivatives transactions with pension funds. Erica Johansson also advises clients on cash CDOs, securitisations, structured notes, repos, repackagings, securities lending and margining arrangements, restructurings and banking and finance matters generally. Prior to joining Delphi, she worked with derivatives and structured finance at two major international law firms in London. She is a leading expert in the area of intermediated securities and has also acted as a legal consultant to the World Bank.

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Table of Contents

1 Introduction 1

1.1 Subject Matter 1

1.2 Theme 2

1.3 Background 3

1.4 Sources and Methodology 5

1.4.1 Comparative Legal Studies 5

1.4.2 De Lege Lata vs De Lege Ferenda 6

1.4.3 Sources and Methodology 6

1.4.4 Terminology 7

2 The New Order 9

2.1 Introduction 9

2.2 The EU Financial Services Action Plan 9

2.3 The Financial Collateral Directive 10

2.3.1 The Successful Lobbying for Law Reform 10

2.3.2 Objective, Scope and Applicability 12

2.3.3 Implementation and Opt-Out Possibilities 13

2.3.4 The Rights of Reuse 15

2.3.5 Substitution and Top-Up of Collateral and the Disapplication of Certain Insolvency Provisions 18

2.3.6 Perfection 20

2.3.7 Set-Off and Netting 21

2.3.8 Conflict of Laws 23

2.4 The Settlement Finality Directive 23

2.5 MiFID 25

2.6 Related Initiatives 28

2.6.1 The Hague Securities Convention 29

2.6.2 The UNIDROIT Draft Convention on Substantive Rules regarding Intermediated Securities 32

2.6.3 The Legal Certainty Group 34

2.7 Summary and Conclusions 36

3 Developments of the Securities Markets 39

3.1 Introduction 39

3.2 Developments of the Securities Markets 39

3.2.1 Background 39

3.2.2 Risks 42

3.2.3 Indirectly Held Securities 43

3.2.4 Unallocated and Intermediated Securities 44

3.2.5 Interest in Securities 45

3.3 Clearing and Settlement 47

3.3.1 Sweden 47

3.3.2 United Kingdom 48

3.3.3 United States 51

3.4 Summary and Conclusions 53

4 The Use of Collateral in the Securities Markets 55

4.1 Introduction 55

4.2 The Use of Collateral 55

4.2.1 Repos and Securities Lending 57

4.2.2 OTC Derivatives Markets 58

4.2.3 Clearing and Settlement 59

4.3 Risk Management Practices 60

4.3.1 CollateralManagement 61

4.3.2 Other Methods of Mitigating Credit Risk 63

4.4 Reuse of Financial Collateral 65

4.4.1 Repledge 66

4.4.2 Repose 67

4.5 Examples of Market Documentation 69

4.5.1 ISDA Credit Support Documentation 69

4.5.2 Repo Documentation 71

4.6 Summary and Conclusions 72

5 Property Rights in Securities and the Doctrine of Specificity under English Law 73

5.1 Introduction 73

5.2 Interests in Securities 73

5.2.1 Introduction to English Security Law 73

5.2.2 The Concept of Trust 76

5.2.3 Security over Investment Securities 76

5.3 Reuse of Financial Collateral 79

5.3.1 Repledge 80

5.3.2 A Right of Reuse under the Financial Collateral Arrangements Regulations 83

5.3.3 Repos 86

5.4 The Doctrine of Specificity 88

5.4.1 Identification 88

5.4.2 Substitution 90

5.4.3 Tracing vs. Mixing 93

5.4.4 Unallocated Securities 94

5.5 Summary and Conclusions 99

6 Property Rights in Securities and the Doctrine of Specificity under Swedish Law 103

6.1 Introduction 103

6.2 Interests in Securities 103

6.2.1 Introduction to Swedish Security Law 103

6.2.2 Security over Investment Securities 105

6.3 Reuse of Financial Collateral 107

6.3.1 Repledge 108

6.3.2 A Right of Reuse under the Financial Collateral Directive 112

6.3.3 The Use of Repos 120

6.4 The Doctrine of Specificity 122

6.4.1 Identification 122

6.4.2 Substitution 124

6.4.3 Mixtures 127

6.4.4 Unallocated Securities 129

6.5 Summary and Conclusions 133

7 Property Rights in Securities and the Doctrine of Specificity under US Law 137

7.1 Introduction 137

7.2 Interests in Securities 137

7.2.1 Introduction to US Security Law 137

7.2.2 Article 9 of the Uniform Commercial Code 139

7.2.3 Security over Investment Securities 141

7.3 Reuse of Financial Collateral 145

7.3.1 Repledge 145

7.3.2 The Use of Repos 152

7.4 The Doctrine of Specificity 154

7.4.1 Identification 154

7.4.2 Substitution 156

7.4.3 Mixtures 159

7.4.4 Unallocated Securities 160

7.5 Summary and Conclusions 164

8 Securities as Property 167

8.1 Introduction 167

8.2 Securities and Fungibility 167

8.3 The Doctrine of Specificity 171

8.4 Summary and Conclusions 179

9 Property Rights in Securities and the Doctrine of Specificity: A Comparative Analysis with an Outlook De Lege Ferenda 183

9.1 Introduction 183

9.2 Reuse of Financial Collateral 183

9.2.1 Repledge 184

9.2.2 The Use of Repos 188

9.3 The Doctrine of Specificity 189

9.4 Concluding Remarks 195

Table of Cases 197

Table of Statutes 201

Governmental Reports etc 205

List of Literature 207

Other Resources and Materials 213

Index 217

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