The Personal Property Securities Act 2009 establishes a national law governing security interests in personal property in Australia. It represents a monumental shift in Australian law and the way in which security is taken. Among other things, the Act provides for a single register to replace existing ones (including the register of company charges held by ASIC) and a comprehensive national law relating to creation, perfection or registration, priority, extinguishment and enforcement of personal property securities. This article provides an introduction to the Act and some of its key provisions and concepts. Read more.

The Australian Taxation Office (ATO) recently unsuccessfully attempted to freeze the bank accounts of the private equity firm Texas Pacific Group (TPG) following the stock market float of Myer Holdings Ltd. The ATO sought an ex parte application to freeze the bank accounts of TPG to collect a reported tax bill. Though unsuccessful, it is likely that the ATO will have learned some valuable lessons and it has since issued two draft determinations outlining their views on gains made by private equity firms. Therefore private equity firms investing in Australia have now been put on notice in relation to the ATO's view and so should be in a better position to both mitigate existing risk and to reconsider their investment and divestment strategies. Read more.

A recent single-judge Australian Federal Court decision has revisited how lenders can effectively deal with their contractual rights and obligations under loans. The case, which centred around the purported transfer of rights and obligations in respect of a margin loan, has clear implications for the margin lending industry and equitable title securitisation transactions, and also for a range of other loan transactions, such as where lenders wish to sell-down rights under facility agreements. Read more.

The recent Australian High Court decision in Bofinger v. Kingsway Group and Others [2009] HCA 44 concerning a guarantor's right of subrogation in a transaction involving three layers of secured creditors has prompted financiers and their advisers to review and tighten terms in guarantees, security documents and inter-creditor deeds that relate to an obligor's right of subrogation. As a result of the decision, unless the relevant subrogation provisions are drafted widely enough, a subsequent mortgagee could become unsecured and be denied proceeds of first mortgagee realisations through no action or fault of its own. Read more.

The development and use of forward start financings has grown in Australia over the past 18 months following global (and especially UK) financing trends. Forward start financings were created and became popular in the face of the capital constraints on bank lending characteristic of the global financial crisis. They enable corporate borrowers to reduce their refinancing risks and extend debt maturities in return for providing higher margins on existing loans and additional up-front and top-up fees to those banks in their lending syndicate who are willing to commit to such financings. This article considers the use of this financing technique and some of the issues it raises. Read more.

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On 11 February 2010, the German Federal Financial Supervisory Authority (BaFin) issued a long awaited circular concerning the interpretation of provisions of the German Securities Trading Act relating to information, including marketing material, provided by investment firms to their clients. Read more.

On 4 March 2010, the German Federal Financial Supervisory Authority (BaFin) issued a general decree under which participants must notify BaFin of net short-selling positions that reach, exceed or fall below 0.2% of the outstanding shares in specific financial sector companies and pursuant to which BaFin publishes, in an anonymised form, such positions once they reach, exceed or fall below 0.5% (Decree). Read more.

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On 12 February 2010, the Financial Services Agency of Japan (FSA) proposed amendments to the Cabinet Office Ordinance on Disclosure of Corporate Information. The proposals, made in response to a study group report, aim to ensure that Japanese corporate governance is sufficiently acceptable to both domestic and foreign investors and maintains confidence at an international level. Read more.

The Act on Provisional Measures for the Facilitation of Financing to Small and Medium-Sized Enterprises (Moratorium Act) came into effect on 4 December 2009. It aims to mitigate the risk of bankruptcy of small and medium-sized enterprises (SMEs) and residential mortgage borrowers. The Financial Services Agency also amended its supervisory guidelines and inspection manuals to conform to the provisions of the Moratorium Act. This article explains the contents of the Moratorium Act, the Supervisory Guidelines and the Inspection Manuals. Read more.

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On 15 February 2010, the President signed Federal Law No. 11-FZ amending the Law on Banks to prohibit them from unilaterally increasing interest rates and commission fees and decreasing the term of credit agreements if they are concluded with individual borrowers, though this will not apply to agreements with legal entities. Read more.

On 16 February 2010 the President signed Federal Law No. 12-FZ amending Federal Law No. 173-FZ "On Additional Measures for the Support of Financial System of the Russian Federation," dated 13 October 2008. The Law entered into force on 18 February 2010. Federal Law No. 173-FZ entitled Vnesheconombank (VEB) to grant loans to the Agency for Housing Mortgage Lending (AHML) for a term until 1 June 2015. The amendments extend this term to 1 June 2020.

On 19 February 2010 the Central Bank issued Directive No. 2399-U decreasing the refinancing rate. The Directive entered into force on 19 February 2010. The Central Bank has decreased the refinancing rate from 8.75% (which was effective as of 28 December 2009) to 8.5% per annum. The new rate applies as of 24 February 2010. The Central Bank sets the refinancing rate for its financing of commercial banks. The rate is also used for calculating interest on commercial loans (if the rate is not specified in an agreement), tax payments and in other cases provided by law.

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PLC Global Finance has published a special update, covering recent developments in the Russian Federation, contributed by White & Case LLP.

This month's special update is:

This, and other special updates, are available on the Russian Federation contents page, located on the PLC Global Finance home page.

As the Financial Services Authority continues its crack down on both criminal insider dealing and civil market abuse, this article sums up the Regulator's most recent actions in this area. Read more.

As the 31 October 2010 implementation date for the Solvency II regime comes ever nearer for insurers and reinsurers, this article provides a short update on where affected companies should be in their preparations and on the forthcoming quantitative impact study (QIS5). Read more.

On 12 March 2010, Hector Sants, CEO of the Financial Services Authority, unveiled the Regulator's new "outcomes based approach" to regulation, whereby it will intervene in regulated firms in a proactive way and will conduct "intensive supervision", which is a more intrusive and direct style of supervision involving the scrutiny of management decisions. Read more.

On 1 March 2010, the Financial Services Authority (FSA) published a policy statement on enforcement of financial penalties (PS10/4) together with amendments to the guidance in the Decision Procedure and Penalties manual. The revised guidance applies to breaches of the FSA rules taking place on or after 6 March 2010 and, according to the FSA's consultation paper on the proposals, the FSA's aims are greater transparency, improved consistency and higher penalties to achieve credible deterrence. Read more.

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In recent cases involving the issuance of multiple classes of securities under shelf-registration statements, shareholders who purchased certain classes of securities, but not others, have attempted to assert securities fraud claims on behalf of purchasers in all classes. Certain courts have adopted this liberal view of standing - a position which raises a clear threat to defendants. However, other courts appear to be moving in the direction of dismissal of class claims based on securities that claimants did not purchase. Nevertheless, the outcome remains uncertain. Read more.

Beginning in 2009, fiduciaries or the employees of plan sponsors responsible for the administration of large US tax-qualified retirement plans and certain large welfare plans will generally face new and extensive requirements related to disclosure of fees paid by the plan to its service providers. These requirements include changes to Schedule C to Form 5500 and are also likely to involve changes to fee disclosure by service providers entering into or amending contracts with a plan and information on fees disclosed to participants. The changes highlight the importance of plan administrators continuing to monitor all fees to ensure that they are reasonable in light of the value of the services provided. Read more.

Investment funds, asset managers and broker-dealers have a new set of privacy directives on the horizon geared at the development of more formal, documented programmes to maintain and safeguard their customers' information. These initiatives - five of which are examined here - stem from both US Federal regulators and US States and both the new and proposed rules will apply to businesses irrespective of where they are located and (in some cases) irrespective of whether they are registered with the US Securities and Exchange Commission (SEC). Read more.

Rule 2019 of the Federal Rules of Bankruptcy has been the subject of three recent conflicting decisions of Third Circuit bankruptcy courts. The decisions - examined here - have garnered attention from financial institutions and investment funds because they deal with whether creditors acting as a group in a chapter 11 case must divulge information about the nature and amount of their debt holdings, including when such holdings were acquired and at what price – information that is often a closely guarded secret. Read more.

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