On May 12 2011, the Luxembourg Parliament passed bill 6164,
which implements the E-Money Directive (2009/110/EC) and the
Directive 2009/44/EC amending the Settlement Finality Directive and
the Collateral Directive. The new law (i.) revises the legislation
on e-money institutions and aims to create a more innovative and
balanced framework for the creation of new related services and
(ii.) amends the 2005 Collateral Act.
Most of the amendments regarding the 2005 Collateral Act reflect
provisions already used in existing collateral arrangements, where
they currently apply on a strictly contractual basis. Like the 2005
Collateral Act, the new law is very creditor-friendly; it seeks to
enhance the legal security of the creditor's position when
taking collateral, and to ensure that such collateral is effective
and bankruptcy-remote.
The law's innovations include a provision that a signature of a
financial collateral agreement and a written list of claims,
transmitted to the collateral taker, are sufficient to ensure
perfection of the collateral arrangement over claims; separate
notification to individual debtors is no longer required in order
to enforce the arrangement including towards the debtor or a third
party. Perfection of pledge agreements over claims are also
simplified - the signature of a pledge agreement is, as of now,
sufficient to effect dispossession without further notification to
the debtor.
The law confirms the validity and enforceability of contractual waiver rights between parties and against third parties. It covers:
- a written waiver by a debtor under a collateral arrangement of netting or similar rights in favour of the collateral taker; and
- a waiver by the collateral provider of recourse against the debtor in the event of enforcement of the collateral arrangement.
In both cases the law confirms that the contractual waiver is valid and enforceable between parties and against third parties, even in the event of bankruptcy or a similar procedure. Confirmation of the enforceability of contractually agreed waivers will give creditors full control of the value that the collateral effectively represents on enforcement.
On the issue of perfecting pledges over financial assets, the law introduces two new measures of perfection into Luxembourg law (next to the traditional way to operate perfection which included dispossession of the pledged assets):
- a control arrangement which applies in the case of a pledge taken by a custodian on assets under its custody; and
- a change of control which applies by the conclusion of either a tripartite agreement that includes the custodian or a bipartite agreement which does not include the custodian, but requires a subsequent notification to the custodian with instructions to the latter to act on the pledgee's instructions.
Moreover, the law introduces the assumption that dispossession
(unless otherwise agreed) - or notification to the custodian if a
control arrangement has been signed - amounts to a waiver of the
custodian's pledge ranking, with no need to make a
corresponding request to the custodian unless the latter raises an
objection.
The law confirms that as of the date of enforcement of a pledge
agreement, appropriation by the pledgee or by a third party for a
determined price can be effected immediately on an enforcement
event, regardless of whether an appropriation price for the pledged
assets has been determined by such date. Accordingly, the price of
the pledged assets can be determined either before or after
appropriation by the pledgee or the third party in accordance with
the contractual provisions agreed between the parties, but will no
longer constitute an obstacle to effective enforcement.
The above mentioned amendment of the 2005 Collateral Act will enter into force on June 30 2011, once the State Council has waived its second vote and the law has been published in the Official Gazette. It will apply to collateral agreements that were signed before its entry into force.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.