Securitization and Special Purpose Vehicles in an International Setting: a Systemic View

The present work tries to display a comprehensive and comparative study of the different legal and regulatory problems involved in international securitization transactions. First, an introduction to securitization is provided, with the basic elements of the transaction, followed by the different varieties of it, including dynamic securitization and synthetic securitization structures. Together with this introduction to the intricacies of the structure, a insight into the influence of securitization in the financial and economic crisis of 2007-2009 is provided too; as well as an overview of the process of regulatory competition and cooperation that constitutes the framework for the international aspects of securitization. The next Chapter focuses on the aspects that constitute the foundations of structured finance: the inception of the vehicle, and the transfer of risks associated to the securitized assets, with particular emphasis on the validity of those elements, and how a securitization transaction could be threatened at its root. In this sense, special importance is given to the validity of the trust as an instrument of finance, to the assignment of future receivables or receivables in block, and to the importance of formalities for the validity of corporations, trusts, assignments, etc., and the interaction of such formalities contained in general corporate, trust and assignment law with those contemplated under specific securitization regulations. Then, the next Chapter (III) focuses on creditor protection aspects. As such, we provide some insights on the debate on the capital structure of the firm, and its inadequacy to assess the financial soundness problems inherent to securitization. Then, we proceed to analyze the importance of rules on creditor protection in the context of securitization. The corollary is in the rules in case of insolvency. In this sense, we divide the cases where a party involved in the transaction goes bankrupt, from those where the transaction itself collapses. Finally, we focus on the scenario where a substance over form analysis may compromise some of the elements of the structure (notably the limited liability of the sponsor, and/or the transfer of assets) by means of veil piercing, substantive consolidation, or recharacterization theories. Once these elements have been covered, the next Chapters focus on the regulatory aspects involved in the transaction. Chapter IV is more referred to “market” regulations, i.e. those concerned with information disclosure and other rules (appointment of the indenture trustee, and elaboration of a rating by a rating agency) concerning the offering of asset-backed securities to the public. Chapter V, on the other hand, focuses on “prudential” regulation of the entity entrusted with securitizing assets (the so-called Special Purpose vehicle), and other entities involved in the process. Regarding the SPV, a reference is made to licensing requirements, restriction of activities and governance structures to prevent abuses. Regarding the sponsor of the transaction, a focus is made on provisions on sound originating practices, and the servicing function. Finally, we study accounting and banking regulations, including the Basel I and Basel II Frameworks, which determine the consolidation of the SPV, and the de-recognition of the securitized asset from the originating company’s balance-sheet, as well as the posterior treatment of those assets, in particular by banks. Chapters VI-IX are concerned with liability matters. Chapter VI is an introduction to the different sources of liability. Chapter VII focuses on the liability by the SPV and its management for the information supplied to investors, the management of the asset pool, and the breach of loyalty (or fiduciary) duties. Chapter VIII rather refers to the liability of the originator as a result of such information and statements, but also as a result of inadequate and reckless originating or servicing practices. Chapter IX finally focuses on third parties entrusted with the soundness of the transaction towards the market, the so-called gatekeepers. In this respect, we make special emphasis on the liability of indenture trustees, underwriters and rating agencies. Chapters X and XI focus on the international aspects of securitization. Chapter X contains a conflicts of laws analysis of the different aspects of structured finance. In this respect, a study is made of the laws applicable to the vehicle, to the transfer of risks (either by assignment or by means of derivatives contracts), to liability issues; and a study is also made of the competent jurisdiction (and applicable law) in bankruptcy cases; as well as in cases where a substance-over-form is performed. Then, special attention is also devoted to the role of financial and securities regulations; as well as to their territorial limits, and extraterritoriality problems involved. Chapter XI supplements the prior Chapter, for it analyzes the limits to the States’ exercise of regulatory power by the personal and “market” freedoms included in the US Constitution or the EU Treaties. A reference is also made to the (still insufficient) rules from the WTO Framework, and their significance to the States’ recognition and regulation of securitization transactions.

On The Timing of Default Losses: When and Why?

At the light of what happened in 2010 and 2011, a lot of European countries founded themselves in a difficult position where all the credit rating agencies were downgrading debt states. Problem of solvency and guarantees on the states' bond were perceived as too risky for a Monetary Union as Europe is. Fear of a contagion from Greece as well was threatening the other countries as Italy, Spain, Portugal and Ireland; while Germany and France asked for a division between risky and riskless bond in order to feel more safe. Our paper gets inspiration by Roch and Uhlig (2011), it refers to the Argentinian case examined by Arellano (2008) and examine possible interventions as monetization or bailout as proposed by Cole and Kehoe (2000). We propose a model in which a state defaults and cannot repay a fraction of the old bond; but contrary to Roch and Uhlig that where considering a one-time cost of default we consider default as an accumulation of losses, perceived as unpaid fractions of the old debts. Our contributions to literature is that default immediately imply that economy faces a bad period and, accumulating losses, government will be worse-off. We studied a function for this accumulation of debt period by period, in order to get an idea of the magnitude of this waste of resources that economy will face when experiences a default. Our thesis is that bailouts just postpone the day of reckoning (Roch, Uhlig); so it's better to default before accumulate a lot of debts. What Europe need now is the introduction of new reforms in a controlled default where the Eurozone will be saved in its whole integrity and a state could fail with the future promise of a resurrection. As experience show us, governments are not interested into reducing debts since there are ECB interventions. That clearly create a distortion between countries in the same monetary union, giving to the states just an illusion about their future debtor position.

The United States dominates global investment banking: does it matter for Europe? Bruegel Policy Contribution 2016/06, March 2016

In the aftermath of the global financial crisis, the market share of US investment banks is increasing, while that of their European counterparts is declining. We present evidence that US investment banks are on the verge of taking over pole position in European investment banking. Meanwhile, since 2015, Chinese investment banks have overtaken American and European investment banks in the Asia-Pacific market. Credit rating agencies and investment banks are the gatekeepers of the capital markets. The European supervisory institutions can effectively supervise the European operations of these US-managed players. On the political side, we suggest that the European Commission should continue to view its, albeit declining, banking industry as a strategic sector. The Commission, the European Central Bank and the Bank of England should jointly develop a strategic agenda for the EU-US Regulatory Dialogue. Finally, corporates rely on investment banks to issue new securities. We recommend that the big European corporates should cherish the (few) remaining European investment banks, by giving them at least one place in otherwise US- dominated banking syndicates. That could help to avoid complete dependence on US investment banks.

Economics of the new member states: A post-crisis perspective

This essay addresses four major issues confronting the Central and Eastern European new members of the European Union in the decade to come. First: what to think of the financial meltdown of 2008-2009. Second, what have they learned from the tremors, having shaken the previous star performers of the EU? Third we ask if we can expect a return to ‘normalcy' as forecast by most models of financial rating agencies and international financial institutions? Fourth the question is raised what did the new members benefit from their EU membership? Some conclusions on the future of EU reforms and policies close the overview.

Default Invariance: Naïve Category of Law and Finance

Default invariance is the idea that default does not change at any scale of law and finance. Default is a conserved quantity in a universe where fundamental principles of law and finance operate. It exists at the micro-level as part of the fundamental structure of every financial transaction, and at the macro- level, as a fixed critical point within the relatively stable phases of the law and finance cycle. A key point is that default is equivalent to maximizing uncertainty at the micro-level and at the macro-level, is equivalent to the phase transition where unbearable fluctuations occur in all forms of risk transformation, including maturity, liquidity and credit. As such, default invariance is the glue that links the micro and macro structures of law and finance. In this essay, we apply naïve category theory (NCT), a type of mapping logic, to these types of phenomena. The purpose of using NCT is to introduce a rigorous (but simple) mathematical methodology to law and finance discourse and to show that these types of structural considerations are of prime practical importance and significance to law and finance practitioners. These mappings imply a number of novel areas of investigation. From the micro- structure, three macro-approximations are implied. These approximations form the core analytical framework which we will use to examine the phenomena and hypothesize rules governing law and finance. Our observations from these approximations are grouped into five findings. While the entirety of the five findings can be encapsulated by the three approximations, since the intended audience of this paper is the non-specialist in law, finance and category theory, for ease of access we will illustrate the use of the mappings with relatively common concepts drawn from law and finance, focusing especially on financial contracts, derivatives, Shadow Banking, credit rating agencies and credit crises.

A review of the South Carolina Transportation Infrastructure Bank

Members of the General Assembly asked the Legislative Audit Council to review the operations of the South Carolina Transportation Infrastructure Bank, a state agency that awards grants and loans to local and state agencies primarily for large transportation construction projects. The primary audit objectives were to review compliance with state law and policies regarding: The awarding of grants and loans for transportation construction projects ; The use of project revenues and whether funds dedicated to specific projects have been comingled with funds dedicated to other projects ;• Proper accounting and reporting procedures ; The process for repayment of revenue bonds ; Hiring of consultants, attorneys, and bond credit rating agencies ; Ethics.

Role of financial and other information in trade credit decisions in SMEs: An international study

Trade credit is an important source of finance for SMEs and this study investigates the use of the financial statements and other information in making trade credit decisions in smaller entities in Finland, the UK, USA and South Africa. The study adds to the literature by examining the information needs of unincorporated entities as a basis for making comparisons with small, unlisted companies. In-depth, semi-structured interviews in each country were used to collect data from the owner-managers of SMEs and from credit rating agencies and credit insurers. The findings provide insights into similarities and differences between countries and between developed and developing economies. The evidence suggests that there are three main influences on the trade credit decision: formal and report-based information, soft information relating to social capital and contingency factors. The latter dictate the extent to which hard/formal information versus soft/informal information is used.

The validation of the rating for subdivision neighbourhood sustainability design (RSNSD) In Bangkok Metropolitan Region (BMR), Thailand

In recent years, the problems resulting from unsustainable subdivision development have become significant problems in the Bangkok Metropolitan Region (BMR), Thailand. Numbers of government departments and agencies have tried to eliminate the problems by introducing the rating tools to encourage the higher sustainability levels of subdivision development in BMR, such as the Environmental Impact Assessment Monitoring Award (EIA-MA) and the Thai’s Rating for Energy and Environmental Sustainability of New construction and major renovation (TREES-NC). However, the EIA-MA has included the neighbourhood designs in the assessment criteria, but this requirement applies to large projects only. Meanwhile, TREES-NC has focused only on large scale buildings such as condominiums, office buildings, and is not specific for subdivision neighbourhood designs. Recently, the new rating tool named “Rating for Subdivision Neighbourhood Sustainability Design (RSNSD)” has been developed. Therefore, the validation process of RSNSD is still required. This paper aims to validate the new rating tool for subdivision neighbourhood design in BMR. The RSNSD has been validated by applying the rating tool to eight case study subdivisions. The result of RSNSD by data generated through surveying subdivisions will be compared to the existing results from the EIA-MA. The selected cases include of one “Excellent Award”, two “Very Good Award”, and five non-rated subdivision developments. This paper expects to prove the credibility of RSNSD before introducing to the real subdivision development practises. The RSNSD could be useful to encourage higher sustainability subdivision design level, and then protect the problems from further subdivision development in BMR.

Subtropical subdivisions : toward a lot-rating methodology for subtropical climates

What role can climatically appropriate subdivision design play in decreasing the use of energy required to cool premises by maximising access to natural ventilation? How can this design be achieved? The subdivision design stage is critical to urban and suburban sustainability outcomes, as significant changes after development are constrained by the configuration of the subdivision, and then by the construction of the dwellings. Existing Australian lot rating methodologies for energy efficiency, such as that by the Sustainable Energy Development Authority (SEDA), focus on reducing heating needs by increasing solar access, a key need in Australia’s temperate zone. A recent CRC CI project, Sustainable Subdivisions: Energy (Miller and Ambrose 2005) examined these guidelines to see if they could be adapted for use in subtropical South East Queensland (SEQ). Correlating the lot ratings with dwelling ratings, the project found that the SEDA guidelines would need to be modified for use to make allowance for natural ventilation. In SEQ, solar access for heating is less important than access to natural ventilation, and there is a need to reduce energy used to cool dwellings. In Queensland, the incidence of residential air-conditioning was predicted to reach 50 per cent by the end of 2005 (Mickel 2004). The CRC-CI, Sustainable Subdivisions: Ventilation Project (CRC-CI, in progress), aims to verify and quantify the role natural ventilation has in cooling residences in subtropical climates and develop a lot rating methodology for SEQ. This paper reviews results from an industry workshop that explored the current attitudes and methodologies used by a range of professionals involved in subdivision design and development in SEQ. Analysis of the workshop reveals that a key challenge for sustainability is that land development in subtropical SEQ is commonly a separate process from house design and siting. Finally, the paper highlights some of the issues that regulators and industry face in adopting a lot rating methodology for subdivisions offering improved ventilation access, including continuing disagreement between professionals over the desirability of rating tools.

Reflection on the use of rating and score cards for asset and service assessment

The concept of star rating council facilities has progressively gained traction in Australia following the work of Dean Taylor at Marochy Shire Council in Queensland in 2006 – 2007 and more recently by the Victorian STEP asset management program. The following paper provides a brief discussion on the use and merits of star rating within community asset management. We suggest that the current adoption of the star rating system to manage community investment in services is lacking in consistency. It is suggested that the major failing is a lack of clear understanding in the purpose being served by the systems. The discussion goes on to make some recommendations on how the concept of a star system could be further enhanced to serve the needs of our communities better.