Intermediated Securities and Conflict of Laws
Conference on ‘Investing in Securities’ Harris Manchester College, University of Oxford, 16 May 2014
11 Pages Posted: 17 Jun 2014
Date Written: June 14, 2014
In developed financial markets securities are held through banks, brokers and other intermediaries. The question of which law governs the proprietary aspects in respect of securities in cross-jurisdictional holdings is subject of a fierce debate for about 10 years. There is agreement that the so called PRIMA approach is better than the older 'look-though approach'. However, PRIMA in itself is unclear as the concept is divided into a factual version of PRIMA and a consensual one. This dichotomy is perfectly reflected by the fact that the EU (using a fact based PRIMA in several instruments) is unlikely to implement the Hague Securities Convention which proposes a choice of law approach. This paper will look at the debate from a policy angle, analysing a number of issues which have probably fundamentally informed the earlier debate.
Keywords: Securities, Intermediated Securities, conflict of laws, choice of law, PRIMA, Hague Securities Convention, Geneva Securiteis Convention, EU, FCD, Collateral, Netting, Banks Winding-Up Directive
JEL Classification: K11, K12, K22, K33
Suggested Citation: Suggested Citation