| Revision as of 08:29, 30 March 2005 editYeu Ninje (talk | contribs)4,437 edits →Type I PRIMA: Article 9(2) of the European Union's Settlement Finality Directive of 1998← Previous edit | Revision as of 08:32, 30 March 2005 edit undoYeu Ninje (talk | contribs)4,437 edits →European adoption: European Union's Collateral DirectiveNext edit → | ||
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| Such an approach causes problems in some legal systems, notable of which are those of ] and ]. Under both their systems, an investor would be treated as the direct owner of the underlying securities even though the security is held through tiers of intermediaries. The direct ownership in the underlying securities makes it difficult to argue that the location of the asset is at the level of an intermediary. | Such an approach causes problems in some legal systems, notable of which are those of ] and ]. Under both their systems, an investor would be treated as the direct owner of the underlying securities even though the security is held through tiers of intermediaries. The direct ownership in the underlying securities makes it difficult to argue that the location of the asset is at the level of an intermediary. | ||
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=== Adoption in Europe === | ||
| Article 9(2) of the ]'s Settlement Finality Directive of 1998 introduced PRIMA in all European Union member states. In Germany, where investors have direct ownership rights in underlying securities, implementing Art 9(2) into domestic law has severed the connection with the traditional ''lex rei sitae'' approach. | Article 9(2) of the ]'s Settlement Finality Directive of 1998 introduced PRIMA in all European Union member states. In Germany, where investors have direct ownership rights in underlying securities, implementing Art 9(2) into domestic law has severed the connection with the traditional ''lex rei sitae'' approach. | ||
| In ], the ] passed the European Union's Collateral Directive, which is also based on a Type I application of PRIMA. Under Art 9, characterisation, perfection and other issues relating to the provisions of securities as collateral are governed by the law of the State where the securities account is maintained. The majority of member states have yet to implement this directive. | |||
| == Type II PRIMA == | == Type II PRIMA == | ||
Revision as of 08:32, 30 March 2005
The Place of the Relevant Intermediary Approach, or PRIMA, is a legal principle taken in finance to determine the applicable law in relation to a security. It is an alternative approach to the historically important look-through approach, and forms the basis for the Hague Securities Convention.
Unlike the look-through approach, PRIMA does not look through the various tiers of intermediaries to the underlying securities. Rather, it stops at the level of the intermediary immediately above the parties to the pledge or transfer. Its important advantage is that the question of whether or not the applicalb e law is governed by one single jurisdiction even where a portfolio of securities of issuers is involved. This provides certainty and clarity for all parties involved.
Type I PRIMA
The so-called Type I PRIMA dates back to the late 1960s, in Belgium. Under Belgian law, the interest in respect of the underlying securities held by an investor and recorded on the books of its intermediary is treated as a different asset from the underlying securities. Thus the Belgian approach is an application of PRIMA, as well as being linked to the lex rei sitae tradition.
Such an approach causes problems in some legal systems, notable of which are those of Japan and Germany. Under both their systems, an investor would be treated as the direct owner of the underlying securities even though the security is held through tiers of intermediaries. The direct ownership in the underlying securities makes it difficult to argue that the location of the asset is at the level of an intermediary.
Adoption in Europe
Article 9(2) of the European Union's Settlement Finality Directive of 1998 introduced PRIMA in all European Union member states. In Germany, where investors have direct ownership rights in underlying securities, implementing Art 9(2) into domestic law has severed the connection with the traditional lex rei sitae approach.
In 2002, the European Community passed the European Union's Collateral Directive, which is also based on a Type I application of PRIMA. Under Art 9, characterisation, perfection and other issues relating to the provisions of securities as collateral are governed by the law of the State where the securities account is maintained. The majority of member states have yet to implement this directive.
Type II PRIMA
In the United States, a different PRIMA solution has been adopted. Under Art 8 of the Uniform Commercial Code (UCC), the applicable law is not determined by reference to the location of the asset. Instead, parties to the relevant account agreement are able to choose the applicable law. This solution, no longer linked to the lex rei sitae, is still a PRIMA solution as its focus is at the level of the relevant intermediary.