Elgar Financial Law and Practice series
Chapter 14: RETROACTIVITY OF THE FINANCIAL COLLATERAL REGULATIONS
The Financial Collateral Arrangements (No. 2) Regulations 2003 (the ‘Original FCARs’) have been amended by: (a) the Financial Collateral Arrangements (No. 2) Regulations 2003 (Amendment) Regulations 2009 (which updated the Original FCARs to reflect the Companies Act 2006 (‘CA 2006’)); (b) the Financial Markets and Insolvency (Settlement Finality and Financial Collateral Arrangements) (Amendment) Regulations 2010 (the ‘2010 Regulations’) (which made a number of substantive changes to the Original FCARs, including the inclusion for the first time of credit claims as financial collateral and the introduction of the partial definition of ‘possession’); and (c) the Bank Recovery and Resolution (No. 2) Order 2014 (the ‘BRR Order’), Schedule 3 (which introduced a number of consequential changes resulting from the implementation into English and Scots law of the Bank Recovery and Resolution Directive (the ‘BRRD’)). The Original FCARs as amended are referred to as the ‘FCARs’. The Original FCARs came into force on 26 December 2003, the 2010 Regulations came into force on 6 April 2011 and the BRR Order (except Part 9) came into force on 10 January 2015. An important question which arises is the extent, if at all, that they operate retrospectively. The principle underlying the question of whether legislation should have retroactive effect is not in doubt: The true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears.
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