Banking & Financial Services updates
Austria
Contributed by Schima Mayer StarlingerEye-catching decision on advertising of consumer loans
- Austria
- 19 January 2021
The Supreme Court recently had to decide whether ads for consumer loans which stated a monthly rate in the main text and a debit interest rate "from... % p.a." depending on creditworthiness, together with an example in the footnote text, complied with the Consumer Credit Act. The court held that the requirement that certain information be presented in a clear, concise and prominent way is not met with a combination of an attractive monthly rate in the main text and the other standard information in small print.
Oops, I did it again: Austrian banks' terms and conditions and PSD II
- Austria
- 24 November 2020
The European Court of Justice (ECJ) recently responded to the Supreme Court's request for a preliminary ruling and issued a decision with respect to a dispute concerning the standard terms and conditions of Deniz Bank. The ECJ also addressed an additional issue relating to the relationship between Article 52(6)(a) of the EU Payment Services Directive on tacit consent and the EU Unfair Consumer Contract Terms Directive.
Legislative moratoria on loan repayments – are certain SMEs more equal than others?
- Austria
- 06 October 2020
The outbreak of COVID-19 triggered various response measures across the globe. Among other measures, the Austrian legislature, similar to other European countries, has implemented a moratorium on payments of credit obligations to support operational and liquidity challenges faced by borrowers due to the pandemic. Contrary to, for example, Germany, the Austrian legislature has included, in addition to consumers, micro-enterprises in the scope of the moratorium.
COVID-19 pandemic and banking in Austria – lessons learned?
- Austria
- 14 July 2020
A significant part of Austria's COVID-19 subsidy programme was structured as government guarantees for bridging loans to be granted by banks to provide the economy with liquidity. Now, less than three months after the start of the programme, small and medium-sized enterprises regard this approach as disastrous, with many complaining that the granting of loans has been slow and cumbersome, despite the state guarantee, if a loan has been granted at all.
Failing banks – first application of new deposit guarantee scheme
- Austria
- 13 March 2020
An insolvency proceeding was recently opened for the assets of Anglo Austrian AAB AG. This was the last step in a long-lasting dispute between the bank and Austrian and EU regulators, leading to the revocation of the bank's licence. This case is notable because it is the first application of the newly enacted deposit guarantee scheme and was expected to be the first application of the insolvency provisions under the Federal Act on the Recovery and Resolution of Banks.
Bermuda
Blockchain and cryptocurrency regulation 2020
- Bermuda
- 21 February 2020
The current government was elected in 2017, having undertaken to create new economic pillars in Bermuda, identify new opportunities for economic diversification and seek local and overseas investment to develop new local industry and thereby create jobs in Bermuda. Since its election, the government has enthusiastically embraced the fintech sector and the potential that it offers and has repeatedly expressed its intention for Bermuda to be a significant centre for this industry.
Brazil
Equity crowdfunding: alternative method of fundraising during COVID-19 pandemic
Freitas Ferraz Advogados- Brazil
- 01 December 2020
Equity crowdfunding is a form of online fundraising conducted via an electronic platform for participatory investment which can help to boost business. Unlike regular crowdfunding, parties which participate in equity crowdfunding expect a financial return on their investment. In view of the characterisation of this form of investment as a public offering, the Brazil Securities and Exchange Commission recently commenced a public consultation in order to review Brazil's equity crowdfunding rules.
CVM eases investment crowdfunding rules
Freitas Ferraz Advogados- Brazil
- 17 November 2020
In light of the growing popularity of crowdfunding as a means of financing and maintaining small businesses' operations, it has remained on the Brazilian Securities and Exchange Commission's (CVM's) agenda, leading to discussions as to how the existing regulation can be improved. Thus, in August 2020, in the context of the COVID-19 pandemic, the CVM published a new resolution which has made temporary changes, on an experimental basis, to the existing regulatory requirements.
Presidential decree simplifies foreign investment in Brazilian banking sector
- Brazil
- 01 November 2019
A recently issued presidential decree has authorised the Central Bank of Brazil to recognise the government's interest in establishing branches of foreign financial institutions in Brazil and increasing foreign equity participation in Brazilian financial institutions without the need for further presidential authorisation. Prior to the decree's enactment, these matters required the express approval of international treaties or presidential decrees recognising that investments were in the government's interest.
Cayman Islands
Registration of virtual asset service providers commenced on 31 October 2020
Ogier- Cayman Islands
- 08 December 2020
The government recently announced that the Virtual Asset (Service Providers) Law 2020 will commence in phases, with phase one commencing on 31 October 2020. Phase one will focus on anti-money laundering and countering the financing of terrorism compliance, supervision and enforcement. Phase two, which is expected to begin in June 2021, will bring into force the licensing and virtual asset issuance approval process.
Administrative fines regime extended
Ogier- Cayman Islands
- 11 August 2020
The Monetary Authority (Administrative Fines) (Amendment) Regulations 2020 recently came into force, extending the administrative fines regime beyond breaches of the Anti-money Laundering Regulations to a much broader spectrum of breaches under various Cayman regulatory laws. Of particular interest to Cayman bank licensees will be how breaches of the Banks and Trust Companies Law will be treated under the regulations.
New regulatory regime for virtual assets
Ogier- Cayman Islands
- 21 July 2020
The Cayman Islands recently introduced a new framework for regulating virtual asset businesses: the Virtual Assets (Service Providers) Law 2020. The law derives from recommendations made by the Financial Action Task Force and provides for the regulation of virtual asset businesses and the registration and licensing of persons which provide virtual asset services. In addition, the government has amended a number of existing laws to extend to virtual assets.
Bank regulatory update
- Cayman Islands
- 14 July 2020
The COVID-19 pandemic has triggered a number of operational and administrative challenges across the global legal and economic landscape. This article summarises some of the latest developments and the key issues relevant to financial institutions with legal and regulatory links to the Cayman Islands, including the validity and enforceability of electronic signatures and the Cayman Islands advisory on anti-money laundering and countering the financing of terrorism compliance.
Essential considerations for Cayman funds in challenging times
Ogier- Cayman Islands
- 19 May 2020
To help Cayman hedge funds navigate the myriad issues brought about by COVID-19, this article offers a high-level checklist for fund directors and investment managers to consider. The checklist covers operational issues, issues around liquidity and possible termination and communication and reporting considerations. Each of these topics is considered in turn in relation to a typical standalone corporate open-ended Cayman fund. That said, most of the checks can be applied using a variety of Cayman vehicles.
China
FX margin trading prohibited
- China
- 22 January 2019
The State Administration of Foreign Exchange recently found 600 websites guilty of illegally providing foreign exchange (FX) margin trading services. The high yields associated with such high-risk investments have led many countries to introduce strict regulations. In China, the financial regulatory authorities have clarified that no legal institutions can conduct FX margin trading business and that those who break the law in order to engage in such business may incur administrative or criminal penalties.
