The legal structure and regulation of securities lending (Pt 1)

Securities lending is the temporary transfer of securities(mainly shares) from one party to another. At theconclusion of the loan, the borrower is required to deliverequivalent securities to the lender. Securities lending isan important and growing part of global market activity.While it is said to perform valid and useful functions suchas increasing market liquidity, many—particularly duringthe global financial crisis—have expressed concerns thatit also leads to market instability. Concerns with securitieslending have focused primarily on its role in facilitatingshort selling. During the global financial crisis, marketsand regulators were concerned about the potentialdestabilising effect of short selling on financial markets.1Regulators across the globe took action to ban naked andcovered short selling.This article undertakes a comprehensive examinationof the legal structure of securities loans in Australia. Itexamines securities lending in Australia and other majorfinancial markets, namely Europe, the United Kingdomand United States. This article examines the Australian and international industry standard form contracts. It alsoconsiders the current regulatory environment for securitieslending in Australia.

The legal structure and regulation of securities lending (Pt 2)

connection with the collapse of Opes Prime in Australiaand the Australian Federal Court decision whichconsidered the legal characterisation of securities loans.The Opes Prime collapse provoked huge controversyregarding the role of securities lending and the ensuingcourt decision was the first judicial examination ofsecurities lending in Australia.1 The article also considersthe regulatory responses to securities lending and shortselling taken by the International Organisation ofSecurities Commissions (IOSCO) and in Australia, theUnited Kingdom, Europe and the United States duringthe global financial crisis.