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Template:Charges in ireland: Difference between revisions
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These include [[mortgage]]s and [[charge]]s created over an interest in: | These include [[mortgage]]s and [[charge]]s created over an interest in: | ||
:(a) [[cash]];<ref>I know, I know. You can’t take [[security]] over [[cash]]. But if you try, then even if you could, you couldn’t, unless you registered your attempt. But since you can’t ... I’ll get my coat.</ref> | :(a) [[cash]];<ref>I know, I know. You can’t take [[security]] over [[cash]]. But if you try, then even if you could, you couldn’t, unless you registered your attempt. But since you can’t ... I’ll get my coat.</ref> | ||
:(b) [[deposit]]s and [[money]] credited to bank | :(b) [[deposit]]s and [[money]] credited to bank accounts; | ||
:(c) [[share]]s, [[bond]]s or [[Debt securities|debt instruments]]; | :(c) [[share]]s, [[bond]]s or [[Debt securities|debt instruments]]; | ||
:(d) [[money market fund]]s or [[collective investment scheme]] units; or | :(d) [[money market fund]]s or [[collective investment scheme]] units; or | ||
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''But''. | ''But''. | ||
That | That isn’t necessarily how the [[Central Bank of Ireland]] sees it. Matheson warns<ref>[https://www.matheson.com/images/uploads/publications/Companies_Act_2014_Registration_and_Priority_of_Charges_June_2015.doc.pdf “The Companies Act 2014: Registration and Priority of Charges”]</ref> that the registrar tends to take a conservative approach to excluding charges from the registration requirement on account of the ''[[Financial Collateral Arrangement Regulations]]'' — by which it means if you have a general charging clause that mainly concerns financial collateral, but includes non-[[Financial Collateral Regulations|FCR]]-eligible forms of [[security]] as well you still have to register the whole thing — so you may still find local counsel for Irish [[espievie]]s insisting that you register charges with the CBI, notwithstanding the Emerald Isle’s continued membership of the [[European Union]].<ref>“... Charges over all categories of assets are now registerable save for certain specific exclusions (including, for example, a charge created over an interest in cash or in shares in an Irish company). Thus, particulars of every charge created by a company over any property need to be delivered to the CRO, save for charges over non-registrable assets.” — [https://www.lawsociety.ie/Solicitors/Practising/Practice-Notes/Priority-and-registration-of-charges/#.XdusMtWwmiM Irish Law Society bulletin].</ref> | ||
Here is where the lawyer’s yen for over-particularity can be a self-snooker. A [[prime broker]] or a [[custodian]] will like to take a general charge over not just securities, but the fund’s claim against the [[custodian]] in whose accounts they sit (even though that will usually be itself), and all the fund’s rights against its counterparties under market transactions (even though they will (largely) be itself). It is a moot point whether claims under a swap transaction ''referencing'' a bond or share count as “claims and rights over any of the above” so the [[path of least resistance]], paved with good intentions though it is, is just to register the charge and be done with it. | |||
====The JC says==== | |||
But for what it is worth, Central Bank of Ireland, the [[JC]] doesn’t think such a literal reading of the [[Financial Collateral Directive]] is the most productive use of your moral authority or the industry’s time, at any rate where dedicated [[investment fund]]s, whose only ''raison d’etre'' is to invest in financial assets and their derivatives, are concerned.<br> | |||