Brief Banking Bites newsletter
Welcome to the second “offering” of BBB 2017.
This edition covers the interesting case of HMRC v Mercedes Benz Financial Services UK (case C-164/16) and whether a mixed nature leasing agreement is a supply of goods or services for VAT purposes. We have the Court of Appeals considerations in African Export-Import Bank and others v Shebah Exploration & Production Company Ltd and whether using LMA terms amount to dealing on a party’s “written standard terms of business”.
We consider whether lenders need to be entered on the registered of persons with significant control when taking security over shares in a Scottish company and, what possible new security rights are on offer for banks.
We conclude with some Financial Services Regulation developments, including, the duty of responsibility and necessity to prepare for the Senior Managers Regime in good time together with the Financial Conduct Authorities Policy Statement banning clauses which restrict a clients’ choice of future supplier in relation to primary market services.
Commissioners for Her Majesty’s Revenue & Customs v Mercedes-Benz Financial Services Uk Ltd: Case C-164/16 (Request for preliminary ruling from the Court of Appeal). Opinion of Advocate General
The Advocate General has provided his opinion in HMRC v MBFS that only leasing transactions offering certainty that ownership will pass on expiry of the agreement term will be classified a supply of goods for VAT purposes.
Court of Appeal considers whether using LMA terms amount to dealing on a party’s “written standard terms of business”
In African Export-Import Bank and others v Shebah Exploration & Production Company Ltd and others the Court of Appeal determined that the use of negotiated LMA terms did not amount to dealing on a party’s “written standard terms of business” for the purposes of the reasonableness test under the Unfair Contract Terms Act 1977.
Possible new security rights for banks
On 10 July 2017, the European Commission published a consultation amongst other things on the protection of secured creditors from a borrower’s default. The consultation suggests a new type of contractual security right (called accelerated loan security) which could be granted over certain assets to secure a loan granted by a bank to a business.
Implications for lenders when taking security over shares in a Scottish company
The Department for Business, Energy & Industrial Strategy has clarified that a person taking security over shares in a Scottish company must appear on the company’s Register of People with Significant Control, together with the shareholder.
Consumer credit firms duty of responsibility
This note provides an overview of how the duty of responsibility will apply to consumer credit firms in 2018 and why preparation for the Senior Managers’ Regime and duty of responsibility is of paramount importance to consumer credit firms.
FCA bans clauses restricting clients’ choice of future supplier in relation to primary market services
On 27 June the FCA published its Policy Statement PS17/13 ‘Investment and corporate banking: prohibition of restrictive contractual clauses’. This details the FCA’s decision to ban firms from entering into agreements which contain restrictive clauses, which will take effect from 3 January 2018.
Witnessing a deed
In certain circumstances, a party’s signature to a deed must be attested by a witness. For example, if the executing party is an individual or if a company executed the document by the signature of one director.
General Data Protection Regulation (EU) 2016/679) (GDPR)
On 25 May 2018, the GDPR will become directly applicable in all EU member states and, despite Brexit negotiations, the UK Government has confirmed that it will be implementing these new rules in full.
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