Rulefinder
Cross-Border Lending
Red flag analysis to help you optimise the structure of your lending and security activities
How it works
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Rulefinder Cross-Border Lending is a comprehensive analysis of the legal and regulatory issues which impact how to structure cross-border lending and security activities. Red flag issues are identified in an easy-to-use summary and underpinned by detailed analysis from leading local counsel around the world.
Topics covered include:
- How to take and hold security and collateral from an overseas borrower
- Key issues relating to enforcement, including the availability of self-help remedies, and restructuring regimes and toolkits
- Tax implications, with particular focus on withholding tax and stamp duty
- How to structure cross-border lending activities without triggering licensing, registration, or authorisation requirements, including:
- Loan origination, loan transfer, loan sub-participation and lender-to-lender activities
- The impact on the analysis of lender type, borrower type and location, loan nature and purpose and lending strategy
Who it's for
In-house legal teams and lending deal teams who are looking to identify the red-flag issues involved in cross-border lending, whether in a non-bank private credit institution, or a traditional bank.
How it helps
The information is updated daily by our dedicated team of experts, so you always have the latest position at your fingertips without having to incur the time and hassle of local lawyers.
Available as a simple annual subscription.
Product features
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Simplify compliance
- User friendly, colour-coded on-screen report of key issues
- Impact-flagged daily updates, curated by our expert team
- Access to sources, including local counsel memoranda and contact details
- Compare and version audit features
Jurisdictions covered
We currently cover the below with more to come.
Denmark, Finland, France, Germany, Ireland, Italy, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Turkey and United Kingdom
Saudi Arabia and UAE
Mexico
Australia, Hong Kong SAR, India, Japan and Singapore
Speed Read - Japan
Speed Reads, a popular feature of our Rulefinder products, give a handy, simple snapshot of the legal landscape in jurisdictions.
Enjoy this taster of a Rulefinder Cross-Border Lending Speed Read!
Experienced senior lawyers
Rulefinder Cross-Border Lending is managed by a dedicated team of senior lawyers who are experts in their field.
Topics covered
How are “lending activities” typically structured into a particular jurisdiction so that requirement for a lending/credit licence/registration/authorisation is not triggered? Within scope are:
- loan origination
- loan transfers
- risk/sub-participations
- issuing bonds/notes
- lending to group companies of the borrower based in another jurisdiction
- use of securitisation structures/vehicles
- responding to reverse enquiries
- any other workarounds relevant to that jurisdiction
- granting of guarantees/letters of credit
- trade finance activities
Is it possible to conduct related activities (also without triggering requirement for licence/registration/authorisation)?
- marketing activities relating to the firm’s lending activities (e.g. via phone, fly-in, email) and whether particular disclaimers are required
- general marketing activities related to the firm’s brand and awareness-raising of product/service lines)
- definition of arranging/underwriting and any exemptions/exclusions
Does the analysis depend on the:
- type of lender (credit institution/fund/wholly-owned subsidiary – for funds relevant to also consider its domicile, whether open/closed-ended, regulated (e.g. ELTIF))
- type and location of borrower
- nature of loan (drawn/undrawn, secured/unsecured, performing/non-performing)
- purpose of loan (e.g. real estate finance, cash flow finance, rescue finance, litigation funding, to finance financial instruments)
- lending strategy (e.g. private debt, life sciences, ESG)
Practical issues that arise in terms of syndication/arranging e.g. whether requirements triggered by:
- responding to invitation from arranging bank to participate in a syndicate?
- lender-to-lender discussions and/or participation in loan syndication roadshows?
- organising or participating in activities with arranging bank, facility agent and/or security agent/trustee?
- acting as a facility agent?
Where licensing/registration/authorisation requirements are triggered, are there any mutual recognition, equivalence or passporting routes available?
What type of sanction/penalty could be incurred if activity is undertaken without a licence/registration/authorisation? Could transaction be void/voidable (if so, at whose instigation)?
Consideration of various issues relating to taking security/collateral:
- possible to take security from a borrower in the jurisdiction and if so whether it’s generally held directly or through a third-party?
- does analysis depend on whether charges are fixed or floating?
- is the role of security trustee/agent is recognised in the jurisdiction?
- is acting as security trustee/agent is a licensable activity?
- whether a change of lender or security agent/trustee will affect the security?
- are there types of assets over which security cannot be granted?
- must security be registered?
Key issues relating to enforcement
- triggers for being able to enforce and particular red flags to be aware of
- availability of “self-help” remedies
- practical commentary on experiences of creditors enforcing rights in the jurisdiction
- analysis regarding choice of law/submission to jurisdiction clauses and enforceability of foreign judgements
- availability of a restructuring regime/toolkit within the jurisdiction
Restrictions/limitations on obtaining benefit of a guarantee/indemnity in relation to the loan
- analysis of impact of upstream, cross-stream or downstream guarantee
BRP Tax consider how lending activities are viewed from a tax perspective in the jurisdiction of the borrower with a particular focus on withholding tax and stamp duty.