Aide memoire of the 15th meeting of the European Financial Markets Lawyers Group

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15th meeting of the European Financial Markets Lawyers Group

Thursday, 7 October 2004

Room CII, 36th floor, at the ECB in Frankfurt

Agenda

TEM 1: Approval of the agenda and of the aide-mémoire of the last meeting

ITEM 2: Financial Law Committee of Paris Europlace

Presentation by Carole d'Armaillé, Director, Paris Europlace and Hubert de Vauplane, member of the Financial Law Committee of Paris Europlace.

Documents: White Paper of the Financial Law Committee of Paris Europlace: Regulatory and legal environment: proposals for reform, December 2003 (in French), and post-FSAP views (in French and in English)

ITEM 3: Securitisation law reform

3(a): Recent developments on securitisation law in the EU Member States

Focus on the Luxembourg law on securitisation of 22 March 2004 , to be presented by Marie-Paule Gillen and the French law on financial security of 1 August 2003 by Stéphane Kerjean.

Documents: Luxembourg law on securitisation (unofficial translation) and ECB opinion of 4 February 2004 on a draft law on securitisation and French law on securitisation (in French and in English)

3(b): Conflict of laws issues/United Nations Convention on the Assignment of Receivables in International Trade, UN, New York

Presentation of the UNCITRAL Convention by Georges Affaki with a particular emphasis on how the convention has triggered changes in national laws, as is the case for instance in France and Luxembourg recent laws on securitisation.

Document: UNCITRAL Convention on Assignment of Receivables in International Trade of 2001

3(c): Banking secrecy and banking monopoly issues in connection with securitisations operations

The issue will be presented by Hubert de Vauplane and Pedro Ferreira Malaquias.

Document: Note on Securitisation, banking secrecy and banking monopoly 22.09.04

ITEM 4: EFMLG-sub-group on signing authorities and the enforceability of master agreements

Helen Moran will debrief the EFMLG on the outcome of the first meeting of the sub-group on signing authorities held in Dublin on 17 September.

Documents: table of responses, signing authorisation procedures - financial market agreements

ITEM 5: Clearing and settlement issues

5(a): The Commission's second communication on clearing and settlement and follow-up activities

Klaus Löber will report on the state of affairs as regards the Commission's activities in the field of clearing and settlement with a special emphasis on the legal aspects addressed in the proposed EU legal certainty project. Members may provide information on the reactions, if any, of their institutions or national banking associations on the Commission's Communication.

Document: Communication from the Commission to the Council and the European Parliament on clearing and settlement in the European Union – the way forward of 28 April 2004

5(b): The FMLC project of Property interests in investment securities

Martin Thomas will present the FMLC project on property interests in investment securities. The FMLC has asked for the EFMLG's views on its working paper of 5 July 2004 .

Documents: FMLC paper on “Analysis of the need for and nature of legislation relating to property interests in indirectly held investment securities, with a statement of principles for an investment securities statute”; Annex 1; Annex 2; Annex 3; Annex 4

ITEM 6: Legal risk and the Commission's draft proposal for a revision of the Consolidated Banking Directive and the Capital Adequacy Directive implementing Basel II

Members are invited to participate in a tour de table to identify possible areas of legal concern in the Commission's proposal, for instance how institutions practically intend to implement the requirements on legal risk.

Documents: Commission proposal of 14 July 2004 for a revision of the Consolidated Banking Directive and the Capital Adequacy Directive, COM(2004) 486 final; Explanatory Memorandum, IBA working party on legal risk - suggested definition of legal risk, Sound Practices for the Management of Legal Risk,

ITEM 7: ACI STEP initiative on Short-term Securities

Stéphane Kerjean will debrief the group on the consequences of the decision of the ECB Governing Council of 22 July 2004 as regards the ACI STEP initiative on short-term securities markets and on the recent activities of the ACI STEP Task Force.

ITEM 8: Eurofoods IFSC Limited referred to the European Court of Justice

Helan Moran will report on the reference made by the Irish Supreme Court to the European Court of Justice (ECJ) on 27 July 2004 concerning the application of the EU Regulation on Insolvency Proceedings (1346/2000) in relation to Eurofoods IFSC Limited, a subsidiary of the Parmalat Group. The Court has referred several questions to the ECJ concerning, among other things, how to define a debtor's centre of main interests (COMI).

Document: Client briefing (Clifford Chance) of July 2004

ITEM 9: Netting and collateral issues

9(a): Update re EFMLG report on netting and set-off

Niall Lenihan will provide an update on the netting issues in Community legislation in view of the finalisation of the EFMLG report. The group is asked to discuss possible follow-up initiatives, in particular in view of the suggestion of the FMLC for a co-operation with market associations on investigating the feasibility of a EU netting directive.

Documents: EFMLG Report on Protection for bilateral insolvency set-off and netting agreements under EC law of September 2004; Letter of the FMLC of 16 August 2004, survey - the regulation of close-out netting in the countries acceding to the European Union on 1 May 2004

9(b): Netting arrangement in the new Member States

Ewa Kozlowska will report on the update of the EFMLG report on the enforceability of netting arrangements in the new Member States.

9(c): Status of implementation of the Collateral Directive

Klaus Löber will report on the status of the implementation of the Collateral Directive.

16.45 – 17.00 Other issues

10(a): Update on the work of the New York Financial Markets Law Group

Update by David Bloom.

10(b): Standard Market Documentation used in the European Financial Markets [DURING ITEM 1]

The group will be informed about a meeting which took place in July 2004 at the ECB between those market associations which sponsor or are affiliated with standard market documentation used in European financial markets in the areas of derivatives, foreign exchange, repurchase and securities lending transactions. The aim of the meeting was to investigate the degree of legal and operational differences between the main agreements used in the financial markets and at the same time, to explore ways and means to further reduce basis risk that results from the co-existence of different agreements.

Documents: EMA - The New Derivatives Annex and its Supplements, explanatory memorandum, general provisions, Options transactions, product annex for repurchase transactions, product annex for securities loans, margin maintenance annex, interest rate transactions, special provisions, index of defined terms, product annex for derivative transactions, foreign exchange transactions,

10(c): Other issues of relevance to the EU financial markets

Members may raise any other items which are of interest to the European financial markets.

10(c): Enlargement of the EFMLG

10(d): Date and place of the next meeting

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