Since Professor Robin Morse’s seminal article on ‘Retention of Title in English Private International Law’ the regulatory landscape has changed considerably. The conflict of laws rules applicable to contractual and non-contractual obligations have been unified within the European Union pursuant to the Rome I and Rome II Regulations. The EU Insolvency Regulation provides a framework for the applicable insolvency law, also affecting retention of title clauses. These clauses are used widely in intra-Union trade and beyond, yet the treatment these clauses receive in different jurisdictions varies significantly. Under English law, the recent decisions in Wilson v Holt and in The Res Cogitans have introduced further uncertainty into an area of law that has been characterised as ‘a maze if not a minefield’. Moreover, when Brexit takes effect the legal landscape may change again. This chapter demonstrates the complexity that even simple transactions may give rise to in the cross-border insolvency context. It considers both the substantive law and the relevant conflicts of law rules in England and Germany.
The present paper analyses some interactions between the resolution framework and the Charter of Fundamental Rights of the European Union (CFREU). It provides an overall view of the relevant provisions in the legislative text and the Recitals as well as a more detailed analysis of the interplay between the provisions granting resolution authorities the power to bail-in liabilities and the fundamental right to property recognised in Article 17 CFREU. In this respect, it also provides reference to the recent decision of the European court of Justice (ECJ) in the Kotnik case (C-526/14) and provides an assessment of points of contact and differences between the stance taken by the Court and the provisions of BRRD and SRMR.
Michael Anderson Schillig
Whereas many large financial firms operate on a global scale, resolution tools and powers as well as resolution financing mechanisms remain firmly in the hands of national or regional authorities. Consequently, the ensuing ‘financial trilemma’ may currently be solved only through advancing cross-border financial integration and national sovereignty at the expense of global financial stability. Within these parameters, the latter may be realized to a limited extent by some form of pragmatic territorialism, as embodied in the FSB’s Key Attributes of Effective Resolution Regimes for Financial Institutions. This chapter critically evaluates these international standards as the offered global solution for resolving the failure of cross-border financial firms.