Allens

Banking & Finance

Our experienced Banking & Finance legal team regularly publishes articles and updates - the full list of publications appears below. These publications contain the latest news and developments, and look at the ramifications for your business. If you'd like to be notified when we add new banking & finance publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

See also our banking & finance pages for more information on our broad range of skills and experience in the financial sector, including capital raisings, securities, superannuation and managed investments.

Banking & Finance Publications

  • Unravelled: Regulating bonuses: will Australia be next?

    5 August 2015

    The UK's Financial Conduct Authority and Prudential Regulation Authority released rules, in June this year, to further tighten what are already fairly onerous restrictions on the payment of bonuses to staff in banks, building societies and certain big investment firms. The world's financial regulators have, for some time, been trying to crack down on what they consider to be inappropriate remuneration structures and it begs the question – will Australia be next?

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  • Focus: Agency arrangements alright - ANZ and Flight Centre succeed in appeals

    31 July 2015

    The Full Federal Court today handed down its decisions in two high-profile appeals in relation to ANZ and Flight Centre. Both cases dealt with the issue of distribution arrangements and price fixing. Partner Carolyn Oddie and Associate Theodore Souris look at the implications for business.

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  • Client Update: PPS deregulation measures one step closer

    9 July 2015

    A long-awaited change designed to reduce the compliance burden for security interests arising from short-term leases of serial numbered goods is one step closer to becoming law. Partner Karla Fraser and Law Graduate Katharine Ward report.

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  • Unravelled: Draft rules published for mandatory central clearing of derivatives and single-sided reporting

    3 July 2015

    ASIC has published draft rules for mandatory central clearing of certain derivatives, while Treasury has published draft regulations that would permit single-sided reporting of Over-the-Counter Derivatives in some situations. Partner Tom Highnam and Lawyer David Lewis discuss the implications of these draft rules and regulations.

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  • Unravelled: How to avoid anti-money laundering compliance headaches - financial product issues

    3 July 2015

    Issues of securities, interests in managed investment schemes and other types of financial products typically involve a number of 'designated services' under Australia's anti-money laundering and counter terrorism financing (AML/CTF) regime. However, in the midst of preparing governing documents, disclosure documents and negotiating with service providers, it is all too easy for parties to neglect AML/CTF issues when preparing for a product launch. They should not, particularly in light of recent developments on the AML/CTF front.

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  • Linklaters Insights: Legal implications of the Greek debt crisis

    30 June 2015

    After months of political stalemate in negotiations with its creditors to unlock access to bailout funds, the Greek government has announced a referendum on proposed bailout conditions, an extended bank holiday and the imposition of capital controls.

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  • Focus: Draft rules published for mandatory central clearing of derivatives and single-sided reporting

    19 June 2015

    ASIC has published draft rules for mandatory central clearing of certain derivatives, while Treasury has published draft regulations that would permit single-sided reporting of Over-the-Counter Derivatives in some situations. Partner Tom Highnam and Lawyer David Lewis discuss the implications of these draft rules and regulations.

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  • Unravelled: Full Federal Court rules against agreed civil penalties

    4 June 2015

    Ecstasy, cocaine and industrial action at a construction site are unlikely subjects for an article on financial services regulation. They are, however, the things that have led to what could be a significant change to the way in which financial services regulators like ASIC and APRA can resolve civil penalty proceedings.

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  • Unravelled: Tax musings

    4 June 2015

    You would need to have been living under a large rock with your hearing aid turned off not to be aware of the current debates raging in relation to tax. But it is hard to sort the wood from the trees or the real facts and issues from all the surrounding noise.

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  • Unravelled: Trowbridge - a bridge too far?

    4 June 2015

    In October 2014, ASIC released its report into retail life insurance advice practices. The findings were pretty grim – with poor advice being more common than good, or even adequate, advice. ASIC said that advisers were motivated by the promise of commissions, not the interests of their clients. Following the ASIC report, the Association of Financial Advisers and the Financial Services Council bravely commissioned a review of the report by a working group chaired by John Trowbridge. They asked Mr Trowbridge to make recommendations on how the industry should respond to ASIC's findings. And he has.

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  • Paper: Funding a Fund: The growth of the capital call facility

    25 May 2015

    The Australian corporate debt market is primed for growth, with an increase in the number of funds providing direct lending as an alternative source of financing to the traditional lending dominated by domestic banks. In this paper, Partner Tom Highnam and Senior Associate Rita Pang examine the growth of one of the methods by which funds use and raise debt - the capital call facility.

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  • Paper: The Public-Private Partnership Law Review

    21 April 2015

    Partners David Donnelly and Nicholas Ng examine public-private partnerships (PPPs) in Australia, including the year in review, the general framework, bidding and award procedures, recent decisions and the outlook for 2015.

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  • Client Update: Significant 'blow' for penalties claims

    8 April 2015

    Today the Full Federal Court clarified the law of penalties as it applies to fees. The key development is that, in considering whether the amount of a fee is 'extravagant and exorbitant' compared to the potential costs incurred in dealing with a failure to perform an obligation, the court held that indirect costs could be taken into account. Subject to a likely attempt to appeal to the High Court, this development imposes a substantial hurdle for current and future penalties class actions. Partner Jenny Campbell and Lawyer Alicia Lyons report.

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  • Unravelled: Bank capital - where to from here?

    1 April 2015

    If you have been following the debate about bank capital in recent months, you could be forgiven for thinking there is only one issue: how much capital should banks have to hold on account of their residential property lending activities? However, the Financial System Inquiry’s recommendations on bank capital delved into other areas as well - and they have potentially more far-reaching consequences

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  • Unravelled: The fintech phenomenon - risks and opportunities

    1 April 2015

    Everyone is talking about fintech. What is it? And what does it mean for the financial services industry and for regulation?

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  • Linklaters Insights: Shanghai-Hong Kong Stock Connect: new short selling rules

    27 March 2015

    With the launch of the Shanghai-Hong Kong Stock Connect in November of last year, foreign investors now have direct trading access to many shares listed on the Shanghai Stock Exchange.

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  • Linklaters Insights: Stock Connect: the Beneficial Ownership conundrum

    27 March 2015

    Since the launch in November of the Shanghai-Hong Kong Stock Connect programme, various concerns have been expressed in relation to investments made by certain collective schemes, in particular EU-regulated Undertakings for Collective Investment in Transferable Securities or UCITS.

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  • Linklaters Insights: PBOC opens up new financing channels for entities in the Shanghai Free Trade Zone

    24 March 2015

    New measures of the PBOC have reformed the approval and quota-based system for borrowing RMB and foreign exchange outside China. The new measures allow more flexibility for corporates and non-bank financial institutions incorporated in the Shanghai Free Trade Zone, as well as the separate SFTZ accounting units of Shanghai-based banks for business booked in the SFTZ, to structure their foreign debt profiles.

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  • Focus: Social benefit bonds - their role in the funding challenge for social infrastructure and services

    20 March 2015

    With the recent Intergenerational Report having further highlighted the need to deliver social outcomes in an efficient way, Partners David Donnelly and James Darcy report on the potential role of social benefit bonds in providing social infrastructure and services.

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  • Paper: Project finance in Australia

    17 March 2015

    Three of Allens' most experienced project finance partners, Phillip Cornwell, Richard Gordon and Ben Farnsworth, spoke to GTDT: Market Intelligence - Project Finance about project finance trends, including which industry sectors have been the most active and the most significant deals in Australia.

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  • Unravelled: Demystifying bank capital

    5 March 2015

    Hands up if you tuned in to the Financial System Inquiry's discussion of bank capital - but felt you didn't really understand the basics well enough to follow it closely? To paraphrase one of our (numerous) recent prime ministers, this article is 'here to help'.

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  • Unravelled: ASIC's enforcement powers may receive a boost

    5 February 2015

    In preparing its Final Report, the FSI has clearly paid close attention to the report of the Senate Economics References Committee's Report into ASIC's performance and its recommendations designed to strengthen ASIC through a combination of better funding, an enhanced regulatory toolkit and higher penalties, with a view to enabling it to be the 'respected and feared' leader desired by the Senate Committee. The impact of the FSI's recommendations is now likely to be the subject of further submissions to the Government before any decisions are taken.

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  • Unravelled: Bold and sometimes radical - the final Murray report

    7 December 2014

    The Financial System Inquiry's final report has been released. We haven't tested this with 'Word Cloud', but we think the report can best be encapsulated in the word 'however'. The financial system has held up well, 'however, ...'. And what follows the 'however' is often bold and sometimes radical. There are five chapters and just 44 recommendations - compare this with the Cooper Review's 177 recommendations. But this helps - the messages are clear and the recommendations plain, although much of the implementation is left to the imagination.

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  • Client Update: Peer-to-peer lending - a disruptive threat to banks?

    5 December 2014

    One of the things we are very interested in at the moment is how peer-to-peer lending will develop in Australia, and how it could be a disruptive threat to banks. We're not the only people who are interested though. On 4 December, it was announced that a powerful consortium comprising James Packer, News Corporation and Kerry Stokes had struck a deal to take a 25 per cent stake in SocietyOne. SocietyOne was launched in 2012 as Australia's first peer-to-peer lending platform and also counts Westpac as one of its early stage investors. Partner Gavin Smith, Senior Associates Matt Vitins and Andrew Edington and Lawyer Michael Beaconsfield report on peer-to-peer lending, and how it is regulated in Australia.

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  • Audio: FSI Final Report due out Sunday

    4 December 2014

    The Final Report of the Financial System Inquiry is scheduled to be released this weekend. Partners Michelle Levy and Matthew McLennan spoke to BRR Media about some of the recommendations that may be in the Final Report.

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  • Unravelled: Bank technology failures: A new frontier for regulatory intervention?

    3 December 2014

    The UK's regulatory authorities have imposed the largest ever fines in Europe for technology failures in the financial services industry following a serious IT incident affecting more than 6.5 million customers in the UK. It should serve as a cautionary tale for Australian financial institutions.

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  • Unravelled: Fighting to protect Fintech innovations

    3 December 2014

    The growth of financial services technology, or Fintech as it is now called, has exploded in recent years, yet many of its creators don't realise that their innovations are patentable.

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  • Unravelled: Risk management - what, if anything, does the 'three lines of defence' model do?

    5 November 2014

    From 1 January 2015, a new 'common' risk management prudential standard will apply to banks, general insurers and life companies and, in many cases, to other companies in the corporate groups in which those institutions sit. Michael Mathieson looks at the 'three lines of defence' model that APRA proposes to adopt in its associated risk management guidance materials.

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  • Unravelled: The fiduciary duty of mortgage brokers?

    5 November 2014

    There is lots of noise about the duties of financial advisers, and lawyers (including us) love to debate whether FoFA has left any room for fiduciary obligations.

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  • Unravelled: Should APRA's prudential standard-making powers extend to directors' duties?

    5 November 2014

    In recent times, APRA has been active in prescribing duties for directors of the institutions it regulates. In light of what has happened, it is worth asking: should the question of directors' duties be excluded from APRA's prudential standard-making powers?

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  • Unravelled: Big Data v 'personal advice' - an unequal contest?

    5 November 2014

    There is a contest underway between two heavyweights. In one corner of the ring we have Big Data. In the other corner we have the definition of 'personal advice' in section 766B(3) of the Corporations Act.

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  • Unravelled: The 'Internet of Things' meets financial advice

    5 November 2014

    With financial services providers already taking advantage of the possibilities created by a new tide of internet meta data, we need regulators and a regulatory regime that see the opportunities implicit in the change, and not only the risks.

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  • Paper: Getting the deal through - Australia PPP chapter

    5 November 2014

    Partners Leighton O'Brien and Nicholas Ng provide an overview on public-private partnerships (PPPs) in Australia, examining the general PPP framework, trends in the industry, the procurement process, operation and maintenance, default and termination and financing.

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  • Linklaters Insights: Restoring confidence: The Changing European banking landscape

    29 October 2014

    The European banking landscape is set to be re-shaped with the European Central Bank (ECB) assuming direct supervision of 'significant' Eurozone banks as part of the Single Supervisory Mechanism (SSM). The results of the ECB's comprehensive assessment of those banks - comprising an asset quality review (AQR) and stress test - aim to increase transparency, make repairs if needed and build confidence. Ongoing balance sheet strengthening will be a key feature of the new landscape.

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  • Unravelled: Is the pain worth the gain?

    1 October 2014

    ASIC has undertaken a bit of a survey of licensees who provide financial product advice to retail clients to see how they are faring a year into FoFA.

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  • Unravelled: Murray in a muddle over retirement incomes

    1 October 2014

    A close reading of the retirement incomes chapter in the interim report of the Financial System Inquiry reveals a series of paradoxes.

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  • Unravelled: Some facts (and myths) about ASIC and product intervention powers

    1 October 2014

    The closer you look at the recent discussion about product intervention powers for ASIC, the clearer it becomes that the discussion has little basis in fact.

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  • Unravelled: What do ASIC and APRA want from Murray?

    1 October 2014

    Although more than 6500 second round submissions have been made to the Financial System Inquiry, submissions made by ASIC and APRA will be read with greater interest than most. The recommendations in these submissions are likely to be given greater weight by the FSI panel members, and could find their way into the final recommendations and ultimately as changes in regulation.

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  • Audio: Master trust structures: the future of the Australian securitisation market

    15 September 2014

    The Australian Prudential Regulation Authority and the major Australian banks have recently signalled that the Australian securitisation market could greatly benefit from allowing for the use of master trust structures with bullet repayments. Managing Associate Nick Church spoke to BRR Media about how master trust structures operate and the potential implications if they were introduced into the Australian securitisation market.

    Listen
  • Audio: RET Roundtable: Issues for project financing

    5 September 2014

    The recommendations in the Warburton Review of the Renewable Energy Target could, if implemented, have wide-ranging implications for existing and planned renewable energy projects. Partners Andrew Mansour, Michael Ryan and Rob Watt spoke to BRR Media about the implications for project investors and debt providers.

    Listen
  • Unravelled: Can product suitability rules succeed where disclosure has failed?

    8 August 2014

    One of the more interesting possibilities raised in the Interim Report of David Murray's Financial System Inquiry is the introduction of product suitability requirements as a complement to the current disclosure regime. The Interim Report presents a case for change but does not set out in detail what change might look like.

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  • Unravelled: Bringing light to the shadows: regulation of the Australian shadow banking sector

    8 August 2014

    The Financial Stability Board has been working since the GFC to develop a policy framework that mitigates the systemic risks of the shadow banking sector, while simultaneously preserving its benefits. We examine international developments in shadow banking and the Board's proposed regulatory response as well as the state of the Australian shadow banking market and the Reserve Bank of Australia and the Australian Prudential Regulatory Authority's policy proposals.

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  • Unravelled: The interim report of the Financial System Inquiry

    15 July 2014

    The Financial System Inquiry Interim Report was issued today. There are few surprises in the options and comments, although there are some significant omissions. There does not appear to be any push for a significant shift in policy or in the regulation of the financial system. There will be adjustments and some specific areas targeted for change. But the four pillars policy looks like it is here to stay.

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  • Unravelled: Increasing ASIC's enforcement powers

    8 July 2014

    In its submission to the Financial System Inquiry, the Australian Securities and Investment Commission has again raised the issue of the penalties that are available to it to punish and deter corporate wrongdoing. ASIC's submission recommends that a 'holistic review' be conducted into the availability and adequacy of penalties available under ASIC-administered legislation.

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  • Unravelled: The Financial System Inquiry - matchmaking superannuation and infrastructure investment?

    8 July 2014

    The vast pool of capital held in Australian superannuation funds (now approximately A$1.8 trillion) has long been touted as a natural solution to Australia's infrastructure funding deficit. With the stable long-term cash flows characteristic of infrastructure assets providing a natural fit to the liability profile of the typical superannuation fund, the two seem a perfect match. However, in the words of Shakespeare, 'the course of true love never did run smooth'.

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  • Unravelled: Development of the corporate bond market

    8 July 2014

    It has been recognised for some time that the domestic corporate bond market constitutes a weak spot in the otherwise robust and deep Australian capital markets. The less developed domestic bond market is a distinguishing feature among the leading financial systems and capital markets. This was no more evident than through the GFC, when corporate Australia recapitalised through the equity markets rather than turning to investors in the domestic wholesale or retail bond markets.

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  • Unravelled: Why CAMAC's final report might kickstart equity crowdfunding

    8 July 2014

    As you read this, the Melbourne-based makers of 'LazerBlade: the affordable laser cutter / engraver' are probably exchanging high-fives. Their Kickstarter project, seeking $45,000, has raised almost ten times that much. Soon, the project's backers hope to receive their LazerBlades – their pledges were effectively a pre-purchase of the product itself, a common model on crowdfunding platforms.

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  • Audio: NSW Budget committed to transport infrastructure

    18 June 2014

    The New South Wales Budget, handed down yesterday, has outlined an increased focus on transport projects and asset recycling. Infrastructure & Transport Sector Head Emma Warren and Partner Andrew Mansour speak to BRR Media about the Budget's highlights and the implications for potential investors into the state.

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  • Unravelled: Disclosure: current complexity, future clarity?

    4 June 2014

    Since the 1996 Wallis Inquiry, disclosure has been at the heart of the regulatory philosophy for the retail financial services sector in Australia. Under the Financial System Inquiry's terms of reference, the Inquiry 'will refresh the philosophy, principles and objectives underpinning the development of a well-functioning financial system' and it is likely this will include a rethink of the role of disclosure. With this in mind, we take a look at the current disclosure regime and consider its likely future.

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  • Unravelled: Rethinking Australia's regulatory approach to securitisation

    4 June 2014

    The Australian securitisation market was arguably more resilient than many during the GFC. However, certain regulatory and structural features of the Australian securitisation market have hampered its growth and the ability of Australian issuers to tap the full potential of investor demand.

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