The Securitisation 2022 guide features 21 jurisdictions. The guide covers the latest developments in insolvency laws, special-purpose entities, the construction of bankruptcy-remote transactions, taxes and tax avoidance, accounting rules, disclosure laws or regulations, credit risk retention, rating agencies, the use of derivatives, synthetic securitisation and the impact of COVID-19.
Last Updated: January 13, 2022
Securitisation: as Essential as Ever for a Recovering World
The COVID-19 pandemic has changed almost every aspect of our daily lives, and has certainly not spared finance, including securitisation. Nonetheless, the structured finance markets have come roaring back from 2020, with worldwide issuance of asset-backed securities (ABS) for 2021, by preliminary analysis by Asset-Backed Alert, expected to be about USD1.1 trillion – materially up from USD745 billion in 2020. Unlike in the financial crisis of 2008–09, when various defaulting securities exposed weakness in the securitisation market, thus far the securitisation market has held up remarkably, almost unpredictably, well. The massive amounts of liquidity that most governments in large markets have poured into the market, the forbearance with regard to consumers encouraged on a global scale, and the booming demand that appeared once economies began to open all at once required financings in large amounts. Securitisation has answered that call.
Many of the improvements created by the numerous rounds of legislation and regulation passed or adopted to improve the market on the whole since 2008 appear to have, in fact, strengthened the resilience of the market. However, this stop-and-go of business growth, combined with unprecedented government support, has created numerous supply bottlenecks and labour shortages. I expect, therefore, 2022 to be a year of consolidation and a further test for the resiliency of the securitisation market and legal framework.
This Global Practice Guide (Guide) is intended to serve as a practical means by which legal practitioners may deal with the ups and downs of the market, and any regulatory or other issues that may arise as the market deals with the effects of the global pandemic. Over the 13 years since the beginning of the financial crisis, the most important development for securitisation, anywhere and everywhere in the world, has been the creation of a vast and complicated regulatory scheme that attempts to rein in securitisation’s perceived weaknesses and to strengthen its valuable structures, purposes and uses. Accordingly, much of this Guide is an attempt to alert legal practitioners to the scope and content of these new rules, whether they are being modified, filled out, or added.
In composing the questions that call for the answers presented in this Guide, efforts have been made to give the legal practitioner a thorough guide to the types of issues that may arise in any country around securitisation and a basis for beginning to structure most of the kinds of securitisations that issuers may use in the actual market place. Similarly, efforts have been made to focus on the real issues that may arise in order to make this Guide itself a practical one.
This is achieved first by summarising the ways that various types of laws of general application will almost certainly affect securitisation transactions. There is focus on insolvency laws, collateral transfer and lien validity laws, tax laws and other similar relevant laws, and the types of opinions that legal practitioners will typically be asked to deliver on account of the effects of such laws will be discussed.
Then comes the most difficult topics in this Guide: the content of the regulations and laws that have been adopted specifically relating to securitisation since the financial crisis. These include regulations on disclosure, retention of credit risk for sponsors or originators, periodic reporting, rating agency regulation, capital and liquidity requirements related to securitisation, derivative regulation related to securitisations such as interest rate and currency swaps applicable to special-purpose entities (SPEs) and credit default swaps, rules for compliance with regimes such as “simple, transparent and comparable” created by IOSCO and the Bank for International Settlements, and their effect on required capital and liquidity, rules similar to the so-called “Volcker Rule” in the USA, rules that regulate banks with regard to securitisation, rules regulating the form of SPEs, rules on credit enhancement, rules governing investments in securitisation by different types of entities such as pension funds, and, if appropriate, accounting rules for sales (vs secured loans) and consolidation of SPEs. We also examine enforcement of the new rules and applicable legal opinions.
After regulatory review, the focus turns to documentation, highlighting provisions for the transfer of financial assets themselves, representations and warranties, covenants, defaults, indemnities and remedies. Again, provisions on legal opinions are included.
The next topic is the roles and responsibilities of the parties to securitisations. Here, material responsibilities, obligations and rights of issuers, sponsors, underwriters and placement agents, servicers, investors and trustees is examined.
Finally, the Guide concludes with common structures for different types of financial assets commonly securitised. These include retail and dealer auto receivables, auto leases, equipment receivables, consumer credit receivables, market-place lending, revolving credit such as credit cards, commercial and residential mortgages, trade receivables, CLOs, and whole-business receivables.
Of course, the above few paragraphs are a mere summary serving as a portal to the extensive information that you will find for the jurisdictions featured in the following Guide itself. Questions, comments and suggestions for improving this Guide are welcomed, as new editions are published from year to year.