SEM MODS COMMITTEE SLIDES
The SEM Mods Committee proposed a modification regarding the registration of charges on collateral reserve accounts, addressing challenges with non-UK participants. Legal advice provided insights on enforceability and structural adjustments required. Options included maintaining the existing structure or adopting a title transfer mechanism. The summary outlined alternatives ranging from withdrawal to stricter enforcement or amending the code for improved security.
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SEM MODS COMMITTEE SLIDES Registration of Charges over Collateral Reserve Accounts Proposed Code Modification
Background Reason for Modification Security not registered in respect of many Accounts. Difficulties endured with Non-UK and Ireland registered participants. Proposal submitted by SEMO to remove requirement to register security in respect of Accounts. Mods Committee requested legal advice on the repercussions of the proposed amendment.
Legal Advice #1 The existing provisions set out in 6.21 may not be enforceable: Neither the Code Charge nor the Deed of Charge include the kind of contractual rights and terms typically afforded to a secured party to enable it to enforce its security. Due diligence should be undertaken - Participants procuring legal opinions regarding capacity, authority, enforceability, required registrations etc. and the suite of documentation required and allowing for any non-U.K. and Ireland incorporated participants.
Legal Advice #2 Should the decision be to retain the existing security interest structure, amendments be made to the Code to: Remove any inconsistencies between the intended identity of the Participant's counterparty to whom secured obligations are owed (Market Operator acting as principal and not, in addition, the SEM creditors) and the relevant provisions of the Code; Remove the Code Charge and instead include in the Code an obligation to enter into a separate Deed of Charge (in form and substance acceptable to SEMO), together with a general "further assurances" obligation; and Require the provision of relevant opinions.
Legal Advice #3 The recommended and strongly favoured option is that a title transfer mechanism be adopted. This would be supported by due diligence to ensure that the relevant title transfer would be recognised as an outright transfer of title to the relevant collateral and not recharacterised by applicable laws as a security interest.
Summary of Options: 1. Do nothing Proposer withdraws Proposal and pursues Participants to register charge as per existing Code Provisions. There is a substantial risk involved in this given the various difficulties experienced and shortcomings involved. Stricter enforcement and additional security around existing and future registration of charges. Amend the Code to remove the Code Charge and include an obligation that requires the Participant to enter into a separate Deed of Charge. (Consideration could also be given to the possibility of including deeds of charge in Participant Registration Packs and suspending Participants, where necessary, in the event of non-compliance). Title transfer Outright title transfer of collateral from Participant to Market Operator, the Participant would cease to hold any right, title and interest in the relevant collateral. Existing security interests created would need to be released. 2. 3. Participants may wish to consult with their own professional advisers on the options.
Note Approximately 10 unsecured accounts exist due to lack of co- operation by relevant participants. Furthermore, SEMO has recently transferred collateral funds to 29 unsecured accounts on foot of the new banking arrangements. Introduces a degree of urgency to a timely resolution of this matter. Pending resolution, SEMO has not taken any further action in respect of registering security over unsecured accounts.
