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: 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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  • 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.

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  • 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.

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  • 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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  • Unravelled: Will ASIC shift its regulatory focus from disclosure to suitability?

    4 June 2014

    The Financial System Inquiry (inevitably, the 'Murray Inquiry') is the successor of the Campbell Inquiry (1979-1981) and the Wallis Inquiry (1996-1997). Both the Campbell and Wallis reports considered that investors were best protected through disclosure and market integrity rules. Both reports assumed that adequate disclosure would result in efficient markets and efficient capital allocation: caveat emptor ('let the buyer beware').

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  • Focus: Material adverse change

    15 May 2014

    In a recent decision, the New South Wales Supreme Court held that a sufficiently significant failure to meet budget expectations could constitute a 'material adverse change', and upheld the lender's right to serve a default notice and accelerate repayment on this basis. Partner Diccon Loxton and Lawyer Alicia Lyons examine the case and its ramifications.

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  • Focus: Green Bonds have come to town

    29 April 2014

    Green Bonds have been part of the international capital markets landscape for some time, and recently the World Bank announced the first A$ 'Green Bonds' to be issued into the Australian debt capital market. If developments in the European Green Bond market are a good indicator, there is potential for this environmentally and socially responsible asset class to develop significantly in Australia, including issuances by corporates. Partner James Darcy, Senior Associate Nick Church and Lawyer David Lewis explore the nature of Green Bonds, who issues them, who invests in them and identify some key considerations for structuring Green Bonds.

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  • Client Update: PPSA amendments for 'serial numbered goods'

    24 March 2014

    New legislation will amend the Personal Property Securities Act to remove the provision that deems leases of serial-numbered goods of more than 90 days to be a 'PPS lease'. These amendments will primarily benefit businesses in the leasing industry and will have a minimal, but positive, effect on financiers. Partner Andrew Boxall and Lawyer Daniel MacPherson report.

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  • Allens insights: A new framework to assess unsolicited infrastructure proposals in Victoria

    24 March 2014

    The Victorian Government has recently published guidelines that frame how it will assess unsolicited proposals for infrastructure projects pitched to it by the private sector. At a time in the economic cycle where investment in infrastructure is becoming more critical to Australia's economic story, this is a very positive step towards encouraging private sector development of innovative and more efficient ways to deliver critical infrastructure projects for the benefit of Government and ultimately the public.

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  • Linklaters Insights: More stringent requirements on bancassurance business in the PRC

    19 February 2014

    2012 saw some small, but positive, steps in the area of intellectual property enforcement within China, according to the recently released 2012 annual report of China's Supreme People's Court.

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  • Linklaters Insights: The final Volcker Rule's potential impact on securitisations, repackagings, covered bonds and other structured products

    18 February 2014

    On December 10, 2013, the Securities and Exchange Commission, the Commodity Futures Trading Commission and three US banking regulators issued a final rule to implement Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, commonly referred to as the 'Volcker Rule'.

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  • Focus: Statutory assumptions for lenders dealing with companies - useful but are they limited?

    3 February 2014

    The New South Wales Court of Appeal has focused on the need for parties seeking to rely on the assumptions in sections 128 and 129 of the Corporations Act to have had 'dealings' with the company. It has held that 'dealings' with a company can be with someone who has actual or ostensible authority to negotiate on behalf of the company; it need not be with someone who has actual or ostensible authority to enter into the particular transaction. So it saved the statutory assumptions from being robbed of much of their use. But the decision leaves possible questions when a party's only 'dealing' with the company is the receipt of the relevant document, or the party needs the assumptions to establish it had 'dealings'. Partner Diccon Loxton and Lawyer Alicia Lyons report.

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  • Focus: Final piece of privacy reform jigsaw

    28 January 2014

    In important news for any Australian business that provides goods or services to individuals on deferred payment terms, the long-awaited Credit Reporting Privacy Code has been registered. Partner Michael Pattison and Senior Associate Matt Vitins report on the implications of the credit reporting reforms for businesses generally, and give an update on the status of the related Privacy Act reforms that are soon to take effect.

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  • Focus: The end of the PPSA transitional period - what happens now?

    24 January 2014

    With the end of the transitional period under the personal property securities legislation fast approaching, those entities that rely upon having interests in property held by others must act now to ensure those interests are properly registered (even where they are transitional), so there is no loss of priority. Partner Steve Pemberton and Lawyer David Allen look at what companies, financiers and insolvency practitioners can expect in the coming months.

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  • Client Update: New rules on foreign investment in Vietnamese credit institutions

    13 January 2014

    The long-anticipated changes to the rules on foreign investment in Vietnamese credit institutions, allowing greater levels of foreign investment (particularly in the case of 'weak' banks), will soon come into effect. Partner Robert Fish and Senior Associate Linh Bui report.

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  • Focus: Anti-money laundering laws review announced

    8 January 2014

    A review of Australia's anti-money laundering and counter-terrorism financing laws will determine whether Australia can and should strengthen its response to money laundering and terrorism financing. Partner Rachel Nicolson and Lawyers Andrew Wilcock and Arlou Arteta report.

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  • Focus: High Court upholds Willmott decision - liquidators may disclaim leases

    5 December 2013

    The High Court has held that a liquidator may disclaim a lease that a company had granted to a tenant, leaving the tenant to prove for any loss in the winding up. This decision clarifies the scope of the liquidators' statutory power of disclaimer. It highlights risks for tenants and for financiers taking security over tenants' interests in leasehold property, and may have wider implications for parties relying on property rights against a company in liquidation. Partner Matthew Whittle and Senior Associate Rebecca Collins report on the decision and its potential implications.

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  • Allens insights: Debt funds open a new asset class

    30 October 2013

    The dominance of the banks in the Australian corporate debt market is an anomaly

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  • Audio: Election impacts on inbound foreign investment

    9 October 2013

    The newly elected Abbott Government has announced a range of policies that will impact upon Australian companies across a number of sectors, with potential changes in the areas of tax, climate change, infrastructure, competition, workplace relations, foreign investment and technology, media and communications. Partner Marcus Clark, from the Corporate group at Allens, speaks to BRR Media about the impact of the election results on businesses faced with foreign investment law issues.

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  • Audio: Election impacts on workplace relations

    9 October 2013

    The newly elected Abbott Government has announced a range of policies that will impact upon Australian companies across a number of sectors, with potential changes in the areas of tax, climate change, infrastructure, competition, workplace relations, foreign investment and technology, media and communications. Special Counsel Eleanor Jewell, from the Commercial Litigation & Dispute Resolution group at Allens, speaks to BRR Media about the impact of the election results on workplace relations.

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  • Audio: Election impacts on infrastructure

    9 October 2013

    The newly elected Abbott Government has announced a range of policies that will impact upon Australian companies across a number of sectors, with potential changes in the areas of tax, climate change, infrastructure, competition, workplace relations, foreign investment and technology, media and communications. Partner Michael Hollingdale, from the Energy, Resources & Infrastructure group at Allens, speaks to BRR Media about the impact of the election results on the infrastructure sector.

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  • Focus: A recent development in the European mid-market: unitranche loans

    3 October 2013

    Over the past 12 months, there has been significant growth in the number of private debt funds that are providing much needed liquidity in the European mid-market by way of unitranche loans: a type of loan that combines senior and mezzanine debt into one instrument. Senior Associate Oliver Sceales (who has recently rejoined Allens having spent the past seven years at the London office of our integrated alliance partner Linklaters) explains what unitranche loans are and considers whether such loans could become a feature of Australia's debt markets.

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  • Audio: ASIC warns consumers on hybrids

    22 August 2013

    The Australian Securities & Investments Commission (ASIC) has released a report outlining a strengthening of rules relating to hybrids. Partners Robert Pick and Julian Donnan speak to BRR Media about ASIC's concerns regarding hybrids, and the implications for businesses.

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  • Focus: Tax loss incentive for nationally significant infrastructure projects

    14 August 2013

    After a long period of scoping, consultation and review, concessional treatment for the tax losses of entities undertaking nationally significant infrastructure projects has become law. Under the measure, which was announced in the 2011-12 Federal Budget, eligible losses can be uplifted by the long-term Government bond rate and the loss integrity rules are moderated. Partner Martin Fry and Lawyer Timothy Stokes look at how it will work in practice.

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  • Focus: The growth of senior debt funds

    12 August 2013

    The Australian corporate debt market is dominated by the domestic banks, but the situation may be about to change. Partner Tom Highnam, Senior Associate Tim Stewart and Lawyer Victoria Johns examine key factors that could drive this change, and discuss some legal issues for funds entering into syndicated loans.

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  • Focus: UK Supreme Court overturns controversial Nortel and Lehman decision

    1 August 2013

    The UK Supreme Court has overturned the contentious Court of Appeal decision holding that the Lehman companies were to treat financial contributions to a group pension scheme as expenses of the companies' administrations, ranking higher than debts to other creditors. The UK decision aligns with the Australian position on this issue, and benefits lenders to, and unsecured creditors of, UK companies. Partner Philip Blaxill, Senior Associate Alicia Salvo and Lawyer Amy Burton report on the decision and its implications.

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  • Client Update: Queensland streamlines processes for taking security over mining and petroleum interests

    22 July 2013

    Recent Queensland legislation reforms the way financiers effect security over mining and petroleum interests. Instead of having to apply for Ministerial approval or lodge caveats, the law now allows financiers to electronically lodge and register mortgages over 'mining tenements' and 'petroleum authorities' with the Department of Natural Resources and Mines. Partner Karla Fraser and Law Graduate Riley Downie report.

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