Financial Collateral Directive: Difference between revisions

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{{anat|security|}}
{{anat|security|}}The [[Financial Collateral Directive]]  ({{eudirective|2002|47|EC}}) (see also the UK legislation [https://www.legislation.gov.uk/uksi/2003/3226/regulation/ here]) is a well-intended piece of [[EU Regulation]] that, by common consent, didn’t ''quite'' achieve what it set out to, which was to introduce “...a Community framework to reduce credit exposure in financial collateral arrangements” thereby contributing to “the effectiveness and integration of European financial markets, reducing credit losses and thereby stimulating cross-border transactions and competitiveness.
The {{tag|Financial Collateral Directive}} ({{eudirective|2002|47|EC}}) (see also the UK legislation [https://www.legislation.gov.uk/uksi/2003/3226/regulation/ here]) is a well-intended piece of {{tag|EU Regulation}} that, by common consent, didn't quite achieve what it set out to, which was to introduce  
 
:''a Community framework to reduce credit exposure in financial {{tag|collateral}} arrangements. These common rules contribute to the effectiveness and integration of European financial markets, reducing credit losses and thereby stimulating cross-border transactions and competitiveness.''
The Brits copied the regulations into domestic English law as part of the [[Brexit]] process.
 
Now we ''say'' the CRD “didn’t quite achieve what it set out to” — but we note quietly that those who make this sort of claim — [[private practice]] [[legal eagles]] — and the way they make it — in a sort of shoe-shuffly, shoulder shruggy sort of way— we feel is [[calculated]] to tweak the spleens of their inhouse-legal clients, knowing how [[buttoctractic]]  they tend to be. No-one among them has any real interest in the CRD achieving what it set out to achieve, and indeed all have quite a bit of interest, if it ''did'' achieve what it set out to achieve, in persuading their internal clients that it might not have. Because that gives them licence to busily ''do'' something, thereby ostensibly “adding value” whilst taking zero risk, because in reality it didn’t need to be done, and didn’t add any value.
 
====Overview====
The directive was designed to simplify and universalise the process of taking security in financial contracts across the EU – for one thing it would mean that any formal registration or perfection requirements which otherwise would be required (registering the security interest with the registrar of companies for example) do not apply.
 
'''Contractual Provisions''': The {{tag|Financial Collateral Directive}} is a little more vague about what counts as a {{tag|financial collateral arrangement}} than is ideal, so you may see contractual stipulations that both parties agree their arrangement is intended to be one.
 
While this is no doubt intended to help, given that, in the final analysis, the person likely to challenge that analysis would be a competing creditor, and the person who would be arbitrating on it would be a liquidqator, if an arrangement were not formally within the definition, then the fact that the parties agreed it was intended to be probably wouldn’t.
 
===What it does===
The [[FCD]] divides [[financial collateral arrangement|financial collateral arrangements]] into two mutually exclusive categories:
*'''[[Title transfer financial collateral arrangement]]s''': Under a [[TTCA]] a [[collateral-provider]] transfers full ownership of the [[financial collateral]] to the [[collateral-taker]] on terms that It will transfer back [[equivalent]] assetswhen the obligations are discharged; and
*'''[[Security financial collateral arrangement]]s''': Under an [[SFCA]] the collateral provider provides [[financial collateral]] by way of security but retains full ownership of the financial collateral remains with the collateral-provider.
====Financial collateral====
====Financial collateral====
A financial collateral arrangement is defined, laboriously, as follows:
A financial collateral arrangement is defined, laboriously, as follows:
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*[[Financial Collateral Directive]]
*[[Registration of charges]]
===Overview===
The directive was designed to simplify and universalise the process of taking security in financial contracts across the EU – for one thing it would mean that any formal registration or perfection requirements which otherwise would be required (registering the security interest with the registrar of companies for example) do not apply.
'''Contractual Provisions''': The {{tag|Financial Collateral Directive}} is a little more vague about what counts as a {{tag|financial collateral arrangement}} than is ideal, so you may see contractual stipulations that both parties agree their arrangement is intended to be one.
While this is no doubt intended to help, given that, in the final analysis, the person likely to challenge that analysis would be a competing creditor, and the person who would be arbitrating on it would be a liquidqator, if an arrangement were not formally within the definition, then the fact that the parties agreed it was intended to be probably wouldn’t.
===What it does===
The [[FCD]] divides [[financial collateral arrangement|financial collateral arrangements]] into two mutually exclusive categories:
*'''[[Title transfer financial collateral arrangement]]s''': Under a [[TTCA]] a [[collateral-provider]] transfers full ownership of the [[financial collateral]] to the [[collateral-taker]] on terms that It will transfer back [[equivalent]] assetswhen the obligations are discharged; and
*'''[[Security financial collateral arrangement]]s''': Under an [[SFCA]] the collateral provider provides [[financial collateral]] by way of security but retains full ownership of the financial collateral remains with the collateral-provider.


===[[Appropriation]]===
===[[Appropriation]]===