Click here to download the Structured finance and securitisation 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 12 jurisdictions are covered in this report:

Australia; Bermuda; Canada; Denmark; France; Japan; Luxembourg; Portugal; Spain; Switzerland; Turkey; United Kingdom; United States.

Questions

The set of questions relating to the topic of Structured finance and securitisation and answered by the guide for each jurisdiction covered include:

General

• • What legislation governs securitisation in your jurisdiction? Has your jurisdiction enacted a specific securitisation law?
• • Does your jurisdiction define which types of transactions constitute securitisations?
• • How large is the market for securitisations in your jurisdiction?

Regulation

• • Which body has responsibility for the regulation of securitisation?
• • Must originators, servicers or issuers be licensed?
• • What will the regulator consider before granting, refusing or withdrawing authorisation?
• • What sanctions can the regulator impose?
• • What are the public disclosure requirements for issuance of a securitisation?
• • What are the ongoing public disclosure requirements following a securitisation issuance?

Eligibility

• • Outside licensing considerations, are there any restrictions on which entities can be originators?
• • What types of receivables or other assets can be securitised?
• • Are there any limitations on the classes of investors that can participate in an offering in a securitisation transaction?
• • Who may act as custodian, account bank and portfolio administrator or servicer for the securitised assets and the securities?
• • Are there any special considerations for securitisations involving receivables with a public-sector element?

Transactional issues

• • Which forms can special purpose vehicles take in a securitisation transaction?
• • What is involved in forming the different types of SPVs in your jurisdiction?
• • Is it possible to stipulate which jurisdiction’s law applies to the assignment of receivables to the SPV?
• • May an SPV acquire new assets or transfer its assets after issuance of its securities? Under what conditions?
• • What are the registration requirements for a securitisation?
• • Must obligors be informed of the securitisation? How is notification effected?
• • What confidentiality and data protection measures are required to protect obligors in a securitisation? Is waiver of confidentiality possible?
• • Are there any rules regulating the relationship between credit rating agencies and issuers? What factors do ratings agencies focus on when rating securitised issuances?
• • What are the chief duties of directors and officers of SPVs? Must they be independent of the originator and owner of the SPV?
• • Are there regulations requiring originators and arrangers to retain some exposure to risk in a securitisation (skin-in-the-game)?

Security

• • What types of collateral/security are typically granted to investors in a securitisation in your jurisdiction?
• • How is the interest of investors in a securitisation in the underlying security perfected in your jurisdiction?
• • How do investors enforce their security interest?
• • Is commingling risk relating to collections an issue in your jurisdiction?

Taxation

• • What are the primary tax considerations for originators in your jurisdiction?
• • What are the primary tax considerations for issuers in your jurisdiction? What structures are used to avoid entity-level taxation of issuers?
• • What are the primary tax considerations for investors?

Bankruptcy

• • How are SPVs made bankruptcy-remote? (How does one isolate the SPV from the risk of being consolidated with the originator of the underlying financial assets and owner of the SPV in a bankruptcy of the originator?)
• • What factors would a court in your jurisdiction consider in making a determination of true sale of the underlying assets to the SPV (eg, absence of recourse for credit losses, arm’s length)?
• • What are the factors that a bankruptcy court would consider in deciding to consolidate the assets and liabilities of the originator and the SPV in your jurisdiction?