Legal Archives | SFF https://sff-camara.com/tag/legal/ Spanish Financial Forum in Luxembourg Tue, 16 Jun 2026 12:33:42 +0000 en-US hourly 1 https://wordpress.org/?v=7.0.2 https://sff-camara.com/wp-content/uploads/2023/02/cropped-SFF-Favicon-1-32x32.png Legal Archives | SFF https://sff-camara.com/tag/legal/ 32 32 MEET THE TEAM – Elvinger Hoss Prussen https://sff-camara.com/sff-magazine-june-2026/meet-the-team-elvinger-hoss-prussen/ Mon, 15 Jun 2026 09:10:10 +0000 https://sff-camara.com/?p=19712 Elvinger Hoss Prussen stands as a leading law firm, trusted by clients to guide them through their most important legal matters. Created in 1964, the firm was built on a […]

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Elvinger Hoss Prussen stands as a leading law firm, trusted by clients to guide them through their most important legal matters. Created in 1964, the firm was built on a foundation of independence, excellence, creativity, and a deep sense of professional responsibility. These founding values continue to define our identity. By fostering this heritage and unique culture, we developed a firm dedicated to providing businesses, institutions, and entrepreneurs with comprehensive, multidisciplinary legal solutions.

Operating from Luxembourg, with offices in Hong Kong and Paris, a partner firm in New York, and strong collaborations with leading international law firms, Elvinger Hoss Prussen continues to play a key role in strengthening Luxembourg’s position as a major global financial centre.

An open and diverse community

Our strength lies in the rich diversity of our team — bringing together individuals from over 33 nationalities. Women represent 64% of our team and 47% of our partners — figures that stand out not only in Luxembourg but across Europe, as we are one of only two European law firms of our size with such a high proportion of female partners, reflecting our long-standing commitment to empowering women.

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years of experience

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team members

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nationalities

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partners

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continents with 3 offices and 1 partner office

Source: Elvinger Hoss Prussen ESG Report 2024 

Our Core Expertise

Our work is anchored in a set of core areas of expertise, yet our lawyers are equally engaged across a broad range of complementary fields, allowing us to deliver agile and comprehensive legal solutions.

Asset Management and Investment Funds

We provide expert advice on a broad spectrum of investment products tailored to a diverse and discerning client base. Proudly, we stand as Luxembourg’s leading firm by net assets for investment funds where we serve as trusted legal advisers.

Corporate, Banking and Finance

At the core of our firm lies our dedicated corporate, banking, and finance teams. This unique structure empowers our experts to address a wide range of sector-specific matters, ensuring seamless continuity of service as challenges evolve, and maintaining enduring relationships built on trust and excellence.

Dispute Resolution and Commercial Law

Our extensive litigation practice spans corporate, commercial, civil, and administrative disputes. We represent companies, financial institutions, businesses, and individuals — whether operating locally in Luxembourg or across multiple jurisdictions — championing their interests with enduring dedication.

Tax

We offer tax advice to national and multinational financial institutions and intermediaries, large corporations, investment and pension funds, sovereign wealth funds, leading private equity and real estate firms, as well as high-networth individuals — guiding them through complex tax landscapes with precision and insight.

 

Discover the expertise of our LATAM team through their professional profiles below.

Partner Cintia Martins Costa’s principal fields of activity are corporate law, mergers and acquisitions, finance and structured finance, including securitisation and capital markets.

Among others, Cintia is a member and Newsletter Officer of the Securities Law Committee of the IBA (International Bar Association) and member of the LPEA (Luxembourg Private Equity and Venture Capital Association).

Cintia speaks English, French, German, Luxembourgish and Portuguese.

Partner Ana Bramao’s principal fields of expertise are fund finance, finance, structured finance, corporate law, mergers and acquisitions and real estate acquisition structuring. She is also regularly involved in corporate litigation matters. 

Among other professional roles, she is a member of the LPEA (Luxembourg Private Equity and Venture Capital Association), the ALJB (Luxembourg Banking and Financial Law Association), and the legal committee of the AMCHAM (American Chamber of Commerce in Luxembourg).

Ana speaks English, French, Portuguese and Spanish.

Partner Anna Hermelinski-Ayache’s practice concentrates on corporate law, mergers and acquisitions, joint ventures, financial and securities law and corporate restructuring.

Anna advises a number of private equity firms, international groups, lenders, borrowers, underwriters, sponsors and venture capital firms, on corporate re-organisations, financing and re-financing as well as restructurings.

Anna is an Officer of the Insolvency Section of the IBA (International Bar Association) and Co-Chair of the Insolvent Financial Institutions Subcommittee.

She speaks English and French.

Partner Michel Marques Pereira‘s principal field of activity is the structuring and formation of private equity, real estate, infastructure and debt funds under the form of regulated or non-regulated vehicles.

Michel advises a number of investment fund promoters, their investment vehicles and their investment managers on a wide range of regulatory, commercial and finance matters.

He also advises fund promoters on asset-stripping related notifications under the AIFMD.

Michel speaks English, French, German, Luxembourgish and Portuguese.

Partner Tiago Nogueira’s practice focuses on banking, insurance and financial services regulatory matters. He advises a large number of credit institutions, MIFID firms, insurance companies, professionals of the financial sector, payment/electronic money institutions and crypto-asset service providers (CASPs) on a wide range of regulatory matters, including CRD/CRR, MiFID, IFD/IFR, PSD, MiCA and AML.

Tiago specialises in the field of licence applications (including legal qualification of regulated services), governance and internal controls, banking, professional secrecy, AML, acquisitions/disposals of qualifying holdings, group reorganisations (including transfer of regulated business units/branches), buyer/vendor due diligences and inspections by regulatory authorities.

Active in the local business community, he is President of the Board of Directors of the AEDBF Luxembourg (Association Européenne pour le Droit Bancaire et Financier) and Former Secretary of the AEDBF Luxembourg (Association Européenne pour le Droit Bancaire et Financier), among other professional memberships,

Tiago speaks English, French, German, Luxembourgish, Portuguese, and Spanish.

Partner Nadège Le Gouellec specialises in Luxembourg and international tax law. She advises a wide range of multinationals and private equity funds with respect to their tax structure in Luxembourg. Her advice relates mainly to acquisitions, project financing, structured finance, corporate reorganisations and real estate. She also has extensive experience in tax controversy and tax litigation. 

Nadège is a member of the IFA (International Fiscal Association) and member of the tax committee of the Luxembourg Bar Association.

She speaks English and French.

Partner Jean-Bernard Spinoit’s practice comprises securitisation, structured finance, capital markets and financial and securities law with a particular focus on all types of securitisation and fund financings.

Jean-Bernard specialises in all aspects of securitisation transactions, including regulated and non-regulated securitisations, as well as in capital market issuances.

He also advises a variety of investment funds and financial institutions on all types of financing transactions involving alternative and securitisation structures (including leverage financings, NAV financings and capital call financings).

In addition to his other professional commitments, he is a member of the management and corporate governance committee and of the private equity and private debt committee of the Luxembourg Capital Markets Association (LuxCMA).

He speaks English and French.

Counsel Rachel Hardy’s practice focuses on collective asset management and investment funds.

Rachel advises investment fund promoters and other financial institutions on the set-up and structuring of their Luxembourg investment fund operations as well as on regulatory matters.

Rachel is a member of the AIJA (International Association of Young Lawyers).

She is part of the firm’s sustainable finance task force.

Rachel speaks English, French and Spanish.

Senior Associate Lena Hoss specialises in civil and commercial dispute resolution with a specific focus on corporate and investment funds related litigation. In this context, she regularly assists clients in cross-border disputes. Lena also advises on civil, commercial and corporate law.

Lena is a member of the Executive Committee of AIJA (International Association of Young Lawyers).

 She speaks English, French, German, Spanish and Luxembourgish.

Senior Associate Filipe Vilas Boas’ practice concentrates on commercial, civil and employment litigation. In addition to litigation, Filipe advises on commercial, civil and employment law.

Filipe is the Vice-President of the Escala Business Club Luxembourg – Portugal.

He speaks English, French, German, Luxembourgish and Portuguese.

Should you have any questions regarding Luxembourg law or regulations, please do not hesitate to contact the members of our LATAM team or visit our website at www.elvingerhoss.lu

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MEET THE TEAM – Loyens & Loeff https://sff-camara.com/sff-magazine-september-2025/meet-the-team-loyens-loeff/ Tue, 16 Sep 2025 19:42:17 +0000 https://sff-camara.com/?p=17563 Multicultural and multilingual team with Spanish and LatAm expertise Loyens & Loeff is the leading law and tax firm in Benelux and Switzerland. Our integrated cross-border teams provide tailored legal, […]

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Multicultural and multilingual team with Spanish and LatAm expertise

Loyens & Loeff is the leading law and tax firm in Benelux and Switzerland. Our integrated cross-border teams provide tailored legal, regulatory, and tax solutions to multinational corporations, global investors, and financial institutions.

We deliver smart solutions, act as a trusted adviser to our international clients and support their growth. Our dedicated Region Teams bring together lawyers from diverse practice areas – including corporate, banking & finance, tax, capital markets, and financial regulation – with a particular focus on Spain & Portugal and Latin America. Our leading expertise is recognised throughout the years, and our contributions have notably been awarded Deal of the Year award by Latin Lawyer and LatinFinance on numerous occasions.

Our dedicated Region Teams for Latin America and Spain & Portugal offer full scope of legal & tax advisory services

Around 20 tax and legal advisers from all departments across our home markets focus on Spain & Portugal and on Latin America.

We provide full legal and tax support to clients pursuing international expansion strategies. We have seen growing interest from Iberian clients in cross-border service provision as well as from Latin American companies seeking to establish a European presence via our home markets. By way of example, we have assisted clients with capital raising by means of bond issuances, the relocation of headquarters with tax efficient structures, or acquisitions of different types of regulated and unregulated companies. We regularly advise leading Spanish banks and Latin American corporates and financial conglomerates on doing business in all our home markets and in particular Luxembourg.

A substantial part of our clients are financial institutions, private clients, and corporations active in infrastructure, aviation, food & beverage, technology & telecom or energy. We provide them with innovative legal advice in all aspects of their business such as tax, M&A transactions, capital markets, financial regulatory, fund structuring, litigation and banking & finance law matters. Our global perspective on their business enables us to better understand their needs and ambitions, allowing us to support them more effectively in their pursuit of success.

We ensure that we stay close to our clients by visiting them in Spain, Portugal and Latin America where we also attend and organise events. By the end of this year we will have visited, only in 2025, Madrid, Barcelona, São Paulo, Rio de Janeiro, and Buenos Aires.

Our interaction with Spanish- and Portuguese-speaking clients is particularly close given the multicultural origin of our lawyers and the linguistic diversity that may be found in all our home offices.

We are extremely proud to be a multicultural and diverse firm. Across all our offices we have professionals from 35 nationalities, including Spain, Portugal, Argentina, Colombia, Honduras and Brazil and we support our clients in their own language.

A multicultural team driving cross-border legal and tax excellence from Luxembourg, Amsterdam, Zurich, and Brussels

Our team members receive top-tier individual rankings in leading international guides such as Who’s Who Legal, Chambers & Partners and Legal 500.​

Charlotte Kiès and Aline Nunes

Partners – Tax Advisors – Amsterdam and Luxembourg

Charlotte and Aline, partners in our Amsterdam and Luxembourg offices respectively, are one of the driving forces behind our Latin America teams. In addition, they possess a wealth of knowledge on Pillar Two and actively encourage knowledge sharing and collaboration across the firm. They both have extensive experience in international taxation and advise multinationals, private equity funds, and high-net-worth individuals on a daily basis.

Both Aline and Charlotte travel frequently to Spain and Brazil to meet their clients in the region.

Adrien Pierre and Vanesa Gómez

Partner and Senior – Financial Regulation – Luxembourg

Adrien and Vanesa, Partner and Senior Lawyer in the Financial Services Regulation practice of our Luxembourg office, are seasoned advisers to Luxembourg and international financial entities (banks, investment firms, financial holding companies, payment institutions, crypto asset service providers, etc.).

Both fluent in Spanish, they regularly travel to Spain to collaborate with clients and law firms. They have notably advised the largest Spanish credit group on several occasions as well as Latin America’s largest conglomerate in its acquisition of a Luxembourg bank, and regularly advise Spanish banks and their local subsidiaries on regulatory matters. Adrien and Vanesa help their clients to navigate complex EU frameworks and to launch their regulated operations in Luxembourg. 

Aline is originally from Brazil and Vanesa is from Spain, they both have prior experience in their home countries thus bringing a particularly valuable understanding of the local markets and clients’ needs and expectations.

Judith Raijmakers

Partner – Banking & Finance – Luxembourg and Zurich

Judith specializes in banking and finance transactions including acquisition financing, asset financing, real estate financing, debt issuances, financial restructuring and insolvency, secured lending, debt (re)structuring, debt issuances and financial regulatory matters.

Judith is a member of the firm’s Latin America team and also travels frequently to Brazil. She is a trusted advisor to major Brazilian financial institutions expanding into Europe and Switzerland with whom she interacts on a daily basis.

Judith is also a qualified Luxembourg and Dutch lawyer. She is the perfect example of our cross-border mentality.

Noémi Gémesi

Partner – Capital Markets – Luxembourg

Noémi advises and represents clients including financial institutions, corporate and sovereign issuers on a wide range of matters including IPOs, debt issuance programmes, placements and buybacks of securities, consent solicitations and exchange offers, takeovers, applications for listing and admission to trading and ongoing obligations resulting from such listings.

She is a very active member of our Latin America team and has travelled several times to Brazil to visit local firms and clients interested in issuing bonds and other instruments in Luxembourg.

Exceptional reputation, top ranking from premium Spanish and Latin American clients and peers and longstanding working relationships with top-tier advisers in both regions.

​At Loyens & Loeff, we combine legal excellence with a commitment to being a great place to work and a trusted close partner for our clients. We believe that empowering our people to lead and innovate, through initiatives like our Spain & Portugal and Latin America Regional Teams, is key to delivering exceptional service. This entrepreneurial spirit drives the quality of our advice and the depth of our client relationships.

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MEET THE TEAM – Baker McKenzie https://sff-camara.com/sff-magazine-june-2025/meet-the-team-baker-mckenzie/ Tue, 17 Jun 2025 11:50:05 +0000 https://sff-camara.com/?p=16881 Spanish voices and connections at Baker McKenzie Luxembourg At Baker McKenzie Luxembourg, diversity is not merely a value; it is an integral part of our daily operations. Within our multicultural […]

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Spanish voices and connections at Baker McKenzie Luxembourg

At Baker McKenzie Luxembourg, diversity is not merely a value; it is an integral part of our daily operations. Within our multicultural team, the presence of Spanish and Hispanophone colleagues significantly contributes to our identity and practices. We are proud to highlight the contributions of Spanish-speaking professionals and the strong connections we maintain with Spain and Latin America. Through personal stories and professional insights, we aim to highlight a small but vibrant community that plays a crucial role in our global success.

Baker McKenzie around the world

With 74 offices in 45 locations, Baker McKenzie is a globally integrated law firm. Our platform allows us to deliver cross-border services while maintaining local roots. The Firm has a global footprint with a strong presence in Spanish-speaking countries. 

Baker McKenzie Luxembourg: practice areas and international clients

Established over 15 years ago, our Luxembourg office is known for its expertise in banking and finance, investment funds, corporate/M&A, real estate, tax, employment, and dispute resolution. We regularly advise Spanish-speaking clients, from private equity houses and asset managers to institutional investors and international firms, on matters requiring both technical knowledge and cultural sensitivity.

Our work is inherently international, involving not only Spain but also Latin American jurisdictions, and our team manages this complexity through close collaboration with colleagues in Spain and across Latin America. Spanish, like other languages, enriches our interactions by fostering cultural sensitivity and trust.

Our professionals’ cultural and legal backgrounds strengthen our Spanish/Latin American connections. Many colleagues have studied or worked in Spanish-speaking countries, adding significant depth and nuance to our services.

Portraits of Spanish and Hispanophone colleagues

Antonio Weffer — transfer pricing principal

Antonio is a tax principal. Born in Venezuela, Antonio obtained a law degree, a Master’s and an MBA in Finance, and an LLM from Leiden. He brings a strong connection to the Hispanic world. With more than two decades of experience, he advises multinational enterprises on intricate cross-border tax issues, specializing in transfer pricing, valuation and economic analysis across diverse industries. Recognized by publications such as World Transfer Pricing and The Legal 500 EMEA, Antonio’s leadership contributed to Baker McKenzie Luxembourg being named “Luxembourg Transfer Pricing Firm of the Year” in 2024.

Antonio Merino — senior associate, Tax

In 2011, Antonio began his professional journey in Madrid as a transfer pricing analyst at a major global law firm. This experience in the Spanish capital laid the groundwork for his career before he moved to Luxembourg in 2012. Antonio brings a valuable Spanish legal perspective to his current role as head of indirect taxes. His roots in the Madrid legal scene continue to inform his expertise in international tax matters.

Rafael De Vega Pascual — associate, Banking & Finance

Rafael De Vega Pascual was born in Barcelona and studied law in Valladolid and Madrid, where he started his career and spent three years working in an international law firm. He moved to Luxembourg in 2022 and has been working as an investment funds lawyer since then. Rafael joined our Investment Funds Practice as an associate in 2023 and advises on all matters related to fund structuring and asset management. He is admitted to the Luxembourg (Liste IV) and Madrid bars.

Ramon Nunez — trainee, Tax

In September 2024, Ramon Nunez joined the team as a transfer pricing trainee. Originally from Madrid, he completed his education and graduated with a degree in business administration from Universidad Rey Juan Carlos and a degree in law from Universidad Complutense de Madrid. His studies included a year in Bordeaux and an academic exchange at New York University. Ramon is now enrolled in a master’s program aimed at qualifying him for the Madrid Bar Association.

"Language isn't just a tool — it's a way of building trust."

Ramon Nuneztrainee, Tax

Ana Vazquez — counsel, Banking & Finance and Real Estate

Ana is a counsel, specializing in banking and regulatory practices. Originally from Zaragoza, Ana began her professional journey in Luxembourg after studying law in Spain and France. With over 20 years of experience in the financial sector, Ana transitioned to become a lawyer at Baker McKenzie Luxembourg. This career move has allowed Ana to leverage her extensive experience in the financial sector to manage multiple clients with diverse needs and expectations.

"In law, as in life, success is rarely achieved alone. Collaboration and teamwork are essential to delivering the best outcomes for clients."

Ana Vazquezcounsel, Banking & Finance and Real Estate

Teresa Rodriguez — senior associate, Tax

Teresa is a tax lawyer with degrees from Universidad de Las Palmas de Gran Canaria and Universität Regensburg. After completing a double master’s degree in law and taxation at Centro de Estudios Garrigues, she moved to Luxembourg. She started at a Big Four firm, earning a diploma in taxation and passing the Spanish bar exam. Though initially planning on a short stay, Teresa found Luxembourg’s work environment and opportunities appealing, and it has become her home.

"If you are the smartest person in the room, you are in the wrong room."

Teresa Rodriguez senior associate, Tax

Manuel Labao-Antunes Jimenez — junior associate, Corporate/M&A 

Born in Coria, Manuel holds a double degree in business administration and law from Universidad Carlos III, as well as a master’s degree in corporate law from the University of Lisbon. He has spent half of his professional career in Madrid as a legal adviser for start-ups and the other half in Luxembourg. Since 2023, he has been working in the Corporate/M&A department team.

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Protecting investments in Latin America – Navigating political risk with Bilateral Investment Treaties https://sff-camara.com/sff-magazine-march-2025/protecting-investments-in-latin-america-navigating-political-risk-with-bilateral-investment-treaties/ Tue, 18 Mar 2025 11:30:55 +0000 https://sff-camara.com/?p=16310 1. Introduction The Latin American region (LatAm) presents appealing investment opportunities for international investors. With a population of 656 million inhabitants (read potential market), a wealth of natural resources and […]

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1. Introduction

The Latin American region (LatAm) presents appealing investment opportunities for international investors. With a population of 656 million inhabitants (read potential market), a wealth of natural resources and a market that includes the 9th and the 12th largest economies in the world (i.e., Brazil and Mexico, respectively) the region is attractive from a business perspective.

However, investing in LatAm countries implies considerable political risks which must be dealt with. These political risks include (extreme) left governments, (semi-)dictatorship environments and a great deal of political and economic instability.

Under this environment, asset protection has become an important driver when structuring investments into LatAm. Specifically, entitlement to Bilateral Investment Treaty protection (BIT) is currently an important element sought by international investors.

We discuss below some relevant aspects of Luxembourg BITs as well as some comments from recent practical experience structuring investments into the LatAm region.

2. Overview of BITs 

BITs are international agreements between two countries that contain reciprocal undertakings for the promotion and protection of private investments. There are currently approximately 2,222 BITs in force along with some 390 multilateral investment treaties and trade agreements with investment provisions.

Currently, Luxembourg (more specifically, the Belgium-Luxembourg Economic Union (BLEU)) has the following BITs in force with LatAm countries:

  1. Argentina
  2. Chile
  3. El Salvador
  4. Guatemala
  5. Mexico
  6. Paraguay
  7. Peru
  8. Uruguay
  9. Venezuela

The following BITs have been signed but are not yet in force:

  1. Brazil 
  2. Colombia
  3. Costa Rica
  4. Cuba
  5. Nicaragua
  6. Panama
3. Some relevant concepts

Under a BIT, a foreign investor has the right to initiate an arbitration procedure against the host state, where an investment is located, for violation of the substantive protections set forth in the relevant BIT.

The substantive protections include (among others):

  • Prohibition on unreasonable or discriminatory measures,
  • Compensation for an unlawful expropriation (including indirect expropriation),
  • Fair and equitable treatment,
  • Full protection and security,
  • National treatment,
  • Most-favoured-nation treatment,
  • Free transfer of payments, and
  • Umbrella clauses (i.e., guarantee of any commitments the state has entered into in relation to investments).
“Under a BIT, a foreign investor has the right to initiate an arbitration procedure against the host state, where an investment is located, for violation of the substantive protections set forth in the relevant BIT.”

In practice, the substantive protection most frequently sought by international investors investing in LatAm is compensation for unlawful expropriation and fair and equitable treatment. We have seen in particular an increasing interest in using these protections against confiscatory tax measures implemented by states – see further below.

What is an investment?

The term “investment” is defined broadly in most BITs to include “every kind of asset” with a non-exclusive list of examples, including:

  • movable and immovable property,
  • mortgages, liens, pledges and usufructs,
  • shares, parts or any other form of participation in companies,
  • claims to money or to any performance having an economic value,
  • copyrights, industrial property rights, technical processes, know-how and goodwill, and
  • concessions under public law.

It is noted in this respect that the protection under many BITs extends to both “direct” and “indirect” investments.

Who is an investor?

Under a BIT, investors can be natural persons or legal persons.

In the case of natural persons, investors are the nationals of a contracting state but note that there may be limitations on dual nationals. For example, an individual holding Luxembourg and Mexican nationalities who invests in Mexico may not have access to the BIT between the BLEU and Mexico. 

In the case of legal entities, there are varying definitions. Some BITs only require:

  1. incorporation in the contracting state;
  2. others require (1) incorporation and (2) a seat of business (siège reel or siège social) or a registered office in the contracting state;
  3. others require (1) incorporation, (2) a seat of business/registered office, and (3) “real” or “substantial” economic activities in the contracting state.  

Example:

An international investor acquiring, through a Luxembourg holding company, the Mexican holding company of an industrial group including different Mexican companies and manufacturing facilities located in Mexico would in principle have access to the protection of the BLEU – Mexico BIT.

In this case, the Luxembourg holding company would qualify as an ‘investor’; the ‘investments’ would include the Mexican holding company and the companies underneath as well as the manufacturing facilities (as indirect investments). We note in this respect that the BLEU – Mexico BIT is of the type discussed in point ii above, i.e., arguably, the Luxembourg holding company would not need to have real or substantial economic activities in Luxembourg (its holding activity would suffice).

“In practice, the substantive protection most frequently sought by international investors investing in LatAm is compensation for unlawful expropriation and fair and equitable treatment.”
The concept of ‘confiscatory taxation’

An increasing number of claims are being brought in relation to confiscatory tax measures implemented by states. These claims are typically brought under the (indirect) expropriation and fair-and-equitable-treatment provisions in BITs (and occur most commonly, but not exclusively, in the oil-and-gas and mining sectors). 

Investors have challenged a variety of tax-related measures, including corporate income tax, VAT or sales tax, and import/export taxes (including withdrawal of tax benefits/subsidies).

In view of the increasing number of claims, some states are introducing tax-related carve-outs in more recent treaties (over 40 percent of BITs entered into since 2010 include such carve-outs). 

Who administers arbitration procedures?

The arbitration procedures may be submitted to arbitration administered: 

  • By the International Centre for Settlement Disputes (ICSID) or
  • Under the arbitration rules of the UN Commission on International Trade Law (UNCITRAL) or
  • By another international arbitral institution (less commonly).

We note in this respect that awards issued under the framework of ICSID, an organization that is part of the World Bank, tend to be followed by states precisely because it is an entity that is part of the World Bank.

Are BITs actually used?

The dispute-resolution provisions in BITs are frequently invoked by investors, and there has been a significant increase in the use of arbitration under BITs in recent years. Recent examples of awards include the following:

  • In 2024, Argentina was ordered to pay USD 160 million to a Kuwaiti company in relation to a contract to provide customs inspection services.
  • Peru has reportedly been ordered to pay damages to a Spanish-led consortium in the first of a trio of ICSID claims over a project to build a new metro line in Lima.
  • Clorox won a USD 109 million award arising from price control measures enacted by the Venezuelan government that forced Clorox to close its production facilities in Venezuela in 2014.
4. The typical Procedural Steps in an Investment Treaty Arbitration
Some time and costs estimations
  • On average, investment treaty arbitration cases can take about 4.5 years.
  • The average costs incurred in an investment treaty arbitration by claimants are approximately USD 6.4 million.
  • The average costs incurred in an investment treaty arbitration by respondents (states) are approximately USD 4.7 million.
  • Among successful claims, the average amount of damages sought is USD 1.5 billion

Authors

David Cordova Flores

Tax Partner
Charles Russell Speechlys SCS

Thomas Snider

Partner, Head of International Arbitration
Charles Russell Speechlys SCS
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Towards greater transparency for alternative funds in Luxembourg https://sff-camara.com/sff-magazine-march-2025/towards-greater-transparency-for-alternative-funds-in-luxembourg/ Tue, 18 Mar 2025 11:10:15 +0000 https://sff-camara.com/?p=16113 An analysis of recent regulatory changes in the alternative investment fund industry to facilitate better oversight by authorities and avoid money laundering risks. Introduction Luxembourg has been a key financial […]

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An analysis of recent regulatory changes in the alternative investment fund industry to facilitate better oversight by authorities and avoid money laundering risks.
Introduction

Luxembourg has been a key financial centre in Europe for decades, and its alternative funds industry has grown significantly in recent years, driven by global trends shifting investors away from public markets and other traditional asset classes towards private equity. This growth has been facilitated by a stable and predictable business environment, as well as effective cooperation between industry and government.

To ensure that this growth remains aligned with international standards and to guard against financial and reputational risks, the country has made the fight against money laundering and terrorist financing one of its priorities. Luxembourg has strengthened its anti-money laundering regulatory framework in response to increasingly restrictive European Union directives and various international standards. The recent visit of the Financial Action Task Force (FATF) has underlined the importance of these measures, highlighting the need to focus more on money laundering investigations and prosecutions, as well as asset recovery.

This article examines some recent regulatory developments in the Luxembourg alternative funds industry, including changes to business registers to promote transparency and cross-checking, as well as enhanced anti-money laundering supervision with new obligations for alternative funds.

Changes to commercial registers

One of the most notable regulatory developments in Luxembourg has been the reform of commercial registers. The Luxembourg government has introduced new measures to improve transparency and facilitate cross-checking of information contained in the different registers. 

The Act of 19 December 2002 on the register of commerce and companies (RCS) and the accounting and annual accounts of undertakings, and the law of 13 January 2019 establishing the register of beneficial owners (RBO), have been amended to improve the accuracy, transparency and efficiency of both registers, bringing them in line with international standards and enhancing their role in anti-money laundering and counter-terrorist financing efforts.

Creation of the LNIN

As of 12 November 2024, the Luxembourg Register of Commerce and Companies (RCS) has implemented a new mandatory requirement: the introduction of the Luxembourg National Identification Number (LNIN) for all natural persons registered with a registered entity.  This new system will significantly improve the consistency and quality of information related to the identification of natural persons collected by the RCS and the Registry of Beneficial Owners (RBO). In addition, it will allow for automatic cross-checking of data, facilitating more effective supervision and reducing the administrative burden for registered entities.

“Luxembourg has demonstrated a strong commitment to improving transparency and anti-money laundering in its alternative funds industry.”

Automatic updating of records

In principle, it is the responsibility of registered persons and entities to keep their records up to date by notifying the RCS administrator of any changes that have occurred. However, with the new reforms, the RCS administrator will be able to register such changes directly in the RCS or RBO if they are informed by other registers about the modification of certain information. For example, if a Luxembourg national changes their surname, this change will automatically be reflected in the RCS or RBO without the need for intervention by the person or entity concerned.

Monitoring and oversight policy

The RCS administration will monitor the data entered in each RCS and RBO database and may request from the registered entity any evidence to justify the accuracy of an entry. This will allow for more effective oversight and ensure that the information in the records is accurate and up to date. If erroneous or incomplete records are detected, registered entities will be subject to fines of €40 per day until the erroneous information has been rectified.

Increased anti-money laundering supervision

The fight against money laundering and terrorist financing is a priority for the Luxembourg authorities, who want to avoid the reputation Luxembourg has had in the past as an opaque jurisdiction. In response to increasingly stringent European Union directives and international standards, Luxembourg has strengthened its anti-money laundering regulatory framework.

The recent FATF visit has underlined the importance of these measures. The FATF noted that Luxembourg has a solid anti-money laundering framework and a good understanding of its money laundering and terrorist financing risks. However, it also noted the need to focus more on money laundering investigations as well as on asset recovery. The FATF also recommended enhancing oversight of non-financial sectors, such as trust and company services, the real estate sector and notaries.

“The need to comply with new transparency and anti-money laundering obligations has forced institutions to review and strengthen their internal policies, enhancing Luxembourg’s reputation as a transparent and safe financial centre.”

New obligations for alternative funds

As part of these efforts, alternative funds in Luxembourg are now subject to stricter obligations regarding the monitoring of their investors, the identification of beneficial owners of each investment and the ongoing monitoring of transactions.

Alternative funds must implement robust policies and procedures to identify, assess and mitigate money laundering risks. In addition, alternative funds are required to submit regular reports to regulatory authorities on their anti-money laundering activities and measures.

These reports must include details of suspicious transactions and actions taken to address any possible illicit activity.

Training and raising awareness

Another crucial aspect in the fight against money laundering in Luxembourg is training and raising awareness. Entities involved in the management of alternative funds must train their staff in the detection and prevention of money laundering. This training includes recognising red flags and understanding the procedures for reporting suspicious activity. Ongoing training helps to ensure that staff are aware of the latest threats and best practices in the fight against money laundering and are able to report suspicious transactions to the authorities.

Impact of the reforms

All these reforms, as well as the extension of obligations that previously only applied to CSSF regulated or semi-regulated funds to purely alternative funds supervised by the EDA, have had a significant impact on the alternative funds industry. The need to comply with new transparency and anti-money laundering obligations has forced institutions to review and strengthen their internal policies. While this has entailed additional costs and resources, it has also enhanced Luxembourg’s reputation as a transparent and safe financial centre. Moreover, these reforms have helped Luxembourg to align itself with international standards and best practices, which is crucial for maintaining investor confidence and protecting the integrity of the financial market.

How to deal with these reforms

The best way to address these obligations is to choose a good fund administrator with a solid foundation for managing these responsibilities. A competent and experienced fund administrator will not only ensure compliance with existing regulations, but will also implement robust policies and procedures to identify, assess and mitigate the associated risks. It is also crucial that administrators are aware of all regulatory obligations and assist funds to proactively comply with them. This involves staying informed about regulatory changes, participating in ongoing training and working closely with regulatory authorities. A good fund administrator will provide regular reports to regulatory authorities, ensuring continuous and effective oversight of transactions. In this way, the fund’s integrity is protected and investor confidence is maintained.

Conclusion

Luxembourg has demonstrated a strong commitment to improving transparency and anti-money laundering in its alternative funds industry. Changes to business registers and increased anti-money laundering supervision are important steps to ensure that the country remains a trusted financial centre. As the alternative funds industry continues to evolve, we may see further regulatory developments in the future to address new challenges and maintain the high standards Luxembourg has set.

These measures not only strengthen the country’s regulatory framework, but also contribute to the stability and integrity of the global financial system. As Luxembourg continues to implement and refine these reforms, it will serve as an example for other jurisdictions seeking to improve their own regulatory practices in the alternative funds industry.

Authors

Ángel Ramón Martínez Bastida

Head of Regulatory Control
AZTEC Group
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The impact of the regulatory wave on the strategy of financial institutions https://sff-camara.com/sff-magazine-december-2024/the-impact-of-the-regulatory-wave-on-the-strategy-of-financial-institutions/ Wed, 11 Dec 2024 04:50:24 +0000 https://sff-camara.com/?p=15669 While the implementation of EMIR Refit has tested the ability of financial institutions to adapt to regulatory updates, the changes in the regulation of financial instruments expected in 2025 foresee […]

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While the implementation of EMIR Refit has tested the ability of financial institutions to adapt to regulatory updates, the changes in the regulation of financial instruments expected in 2025 foresee an equally demanding year in this respect. The implementation of EMIR 3.0, the development of the MiFIR Review and the evolution of MiCAR may have a significant impact on the business model of banks and investment fund managers. Moreover, the amendments that the Retail Investment Strategy (RIS) will bring to the MiFID framework can also start being anticipated as of this year.

Evaluating adaptation to EMIR Refit

The go-live of EMIR Refit on 29 April 2024, brought important changes for financial institutions using derivatives in their investment and hedging strategies. Many banks have made a significant effort in adapting their reporting mechanisms or in working with their software providers to be able to report a greater amount of data with a higher level of granularity as required by the new regulation.

Moreover, investment fund managers are legally responsible for reporting the trades entered by their funds, a mostly delegated task that has triggered the review of the relevant delegation contracts. Due to oversight obligations, one of the main challenges has been to strengthen the monitoring processes over the data reported on their behalf by the service provider without losing the benefits of delegation.

The implementation of EMIR Refit has revealed challenges such as data availability, the interpretation  of feedback messages provided by the trade repository, and most importantly, the notification to  the regulator in case of reporting errors or technical problems preventing timely reporting.

Currently we observe different degrees of maturity in the market with regard to these changes. Banks are striving to streamline the management of data linked to reporting obligations, where costly manual processes and reliance on third parties persist. The multiple data conversions and the use of outdated supporting technologies make it even more difficult to adapt to such a rapidly changing landscape.

Quality control on reported data

The announcement of increased regulatory supervision by the CSSF and the obligation introduced by EMIR 3.0 to establish appropriate procedures and arrangements to ensure an adequate reporting indicate that data quality will become the focus in the coming years. Fines may be imposed on institutions that make systematic manifest errors in the data reported. While these changes increase the regulatory pressure, the overall impact of EMIR 3.0 for banks and investment fund managers will remain far from the seismic shift experienced this year with EMIR Refit.

Pending the technical standards that detail how this monitoring should be carried out, some solutions can already be implemented, ranging from sample testing reports to adopting monitoring tools that control the data reported and display key figures.

Nevertheless, the changes introduced by EMIR 3.0 focus on the obligation for institutions above the clearing threshold with a given volume in certain interest rate derivatives to have an active account with a central counterparty in the European Union that is operationally able to clear on a short-term basis.  Counterparties with an outstanding notional clearing volume above 6 billion euros must clear on an annual average basis and, through that active account, at least five transactions per reference period in each of the sub-categories to be determined by ESMA.

Considering the current clearing thresholds, the scope of products subject to the clearing obligation, and the 6 billion threshold exemption, EMIR 3.0 is likely to have a minor impact on most small and medium-sized institutions established in Luxembourg.

“Nevertheless, the changes introduced by EMIR 3.0 focus on the obligation for institutions above the clearing threshold with a given volume in certain interest rate derivatives to have an active account with a central counterparty in the European Union that is operationally able to clear on a short-term basis.”

Revision of the MiFID/MiFIR framework

The MiFIR Review entered into force in March 2024, although the bulk of the technical standards underpinning it will be phased in over the coming year. A final wave of consultations is expected in January 2025, leading to a final ESMA proposal in October 2025.

Besides the changes in the reporting, one of the most significant changes in the MiFIR Review is the prohibition of receiving payment for order flows. The obligation to ensure the best possible price and execution is incompatible with the institution receiving any fee, commission, or profit for executing orders in a particular market on behalf of retail clients or those who have opted into the professional client regime. Where national rules apply, member states may be exempted from the ban until 30 June 2026.

The changes that the Retail Investment Strategy will bring to the MiFID framework after 2025 are centred in the ban on inducements, in the communication and marketing of products, as well as in their value for money. The prohibition of inducements is part of this EU proposal to ensure best execution and to encourage retail investors to participate in the markets. The new  best interest test replacing the current suitability assessment, will be particularly challenging at the level of the distributor. Thus, entities wishing to successfully surf the regulatory wave will need to review their business strategies and product offering.

MiCAR

The emergence of crypto assets as a new asset class has been met with stagnating adaptation in Luxembourg over the last few years. To stimulate demand and provide additional regulatory certainty, the European Union has adopted a new regulation, the Markets in Crypto-Assets Regulation (MiCAR). This regulation classifies various types of crypto-assets and introduces new rules for providing related services, enabling their passporting in all EU member states. Banks and investment fund managers should consider adapting their operations to prepare for future demand in case of a bull run in cryptocurrency prices.

“To stimulate demand and provide additional regulatory certainty, the European Union has adopted a new regulation, the Markets in Crypto-Assets Regulation (MiCAR). This regulation classifies various types of crypto-assets and introduces new rules for providing related services, enabling their passporting in all EU member states.”

A change in the governance framework driven by the regulatory wave

The regulatory framework for markets is constantly changing, with a clear tendency to grow in complexity and sophistication, which inevitably entails additional costs. This leads the management of these entities to review their internal operating models as well as their relationships with service providers. During 2025, the challenge will be to focus on the choice of an efficient model and an adapted governance framework.

In the case of international groups, it is important to consider the different approaches that each regulator chooses to adopt and the different penalty regimes imposed by them. Locally, we have seen in Luxembourg a notable increase of the involvement of the second and third lines of defence in the process of adapting to new regulatory changes.

In conclusion, it appears that the regulatory framework is evolving at a much faster pace than the ability of the affected entities to adapt. While some see it as an obstacle in their predetermined roadmap, many others see it as an opportunity to review their strategy and to obtain additional revenues from new business streams.

Authors

Antonio Alonso Mascaró

Senior Advisor, Risk Consulting
KPMG Luxembourg
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Women who inspire: Finance – Berta Blasco Lázaro https://sff-camara.com/sff-magazine-december-2024/women-who-inspire-finance-berta-blasco-lazaro/ Wed, 11 Dec 2024 04:40:12 +0000 https://sff-camara.com/?p=15597 In the section “Women who Inspire: Finance” of this new edition of SFF Magazine, we interviewed Berta Blasco Lázaro, Senior Associate at DLA Piper in Luxemburgo. This section aims to […]

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In the section “Women who Inspire: Finance” of this new edition of SFF Magazine, we interviewed Berta Blasco Lázaro, Senior Associate at DLA Piper in Luxemburgo.

This section aims to give visibility to women professionals who lead and develop their careers in the financial sector in Luxembourg. Thus, the Chamber aims to promote equality and diversity in the financial services industry, as well as to inspire and encourage the professional development of women in this sector.

As a lawyer specialized in financial law, in this brief interview, Berta tells us about her professional career and her experience in the financial sector in Luxembourg.

Watch the full interview in the following video (available only in Spanish):

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MEET THE TEAM -Charles Russell Speechlys https://sff-camara.com/sff-magazine-september-2024/meet-the-team-charles-russell-speechlys/ Tue, 17 Sep 2024 08:30:39 +0000 https://sff-camara.com/?p=14629 The Luxembourg office of Charles Russell Speechlys has a specific team dedicated to the Spanish and Latin American (LatAm) markets, composed mainly of native Spanish speakers. Below, we introduce the […]

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The Luxembourg office of Charles Russell Speechlys has a specific team dedicated to the Spanish and Latin American (LatAm) markets, composed mainly of native Spanish speakers.
Below, we introduce the firm and the team…
Can you briefly introduce Charles Russell Speechlys and the Luxembourg office? What is the Firm’s profile?

Charles Russell Speechlys is an international law firm with a focus on private capital. For each project, we seek to put together the right team – starting with our sector and geographical expertise and developing through our partnerships with top law firms across the world covering more than 200 legal jurisdictions, including in Europe and Latin America.

Our Luxembourg office concentrates on large corporate clients operating internationally. We have built our reputation on a strong practice in corporate M&A, international tax advice and tax structuring, banking & finance and investment funds. We provide services, among others, to HNWIs and their family offices, multinational companies, private equity firms, banks and other financial institutions. Our lawyers are regularly recognised in leading directories and rankings, including Chambers and Partners, IFLR1000, Legal 500, etc.

What makes Charles Russell Speechlys Luxembourg different from other law firms?

Our Luxembourg team has been able to build an excellent reputation in assisting international, high-end Private/Family Capital clients by offering tailor-made and high added value services to their specific needs.

We focus on building trust and personal long-term relationships with our clients, we are very close to them, guiding them through the whole process of designing and implementing Luxembourg investment structures; and focusing on tailored-made solutions driven by their specific needs.

Our Spanish-speaking team is composed of Mexican, Brazilian and Spanish lawyers. Having a dedicated team of Spanish speakers allows us to work seamlessly with our Spanish and LatAm clients. Added to our deep experience and knowledge of the Luxembourg and European tax regulatory landscapes, we believe we offer added value to our clients that make us different.

“Our Spanish-speaking team is composed of Mexican, Brazilian and Spanish lawyers. Having a dedicated team of Spanish speakers allows us to work seamlessly with our Spanish and LatAm clients. Added to our deep experience and knowledge of the Luxembourg and European tax regulatory landscapes, we believe we offer added value to our clients that make us different.”
Can you briefly introduce the team and explain what they do?

We have a team of 4 lawyers who are Spanish speakers (3 of them are native Spanish speakers) and serve our clients from Spain and LatAm.

The firm is focused on further developing our work in the Spanish and LatAm markets. Last year, we welcomed David Cordova Flores as a Tax Partner, specifically tasked to further grow the firm’s work and presence in Spain and LatAm. Around 60% – 70% of his work relates to these regions.

Beyond Spanish, our team includes a native Portuguese speaker to cover the Brazilian market. Although our clients speak English, we recognise the comfort and clarity that comes with discussing critical business matters in one’s native language.

The team is composed of (from left to right):

  • David Cordova Flores, Partner – Tax (originally from Mexico)
  • Jesús Sánchez García, Associate – Corporate, Banking & Finance (originally from Spain)
  • Gabriela Tagliari, Associate – Corporate, Banking & Finance (originally from Brazil)
  • Jorge Alemán Juarez, Associate – Corporate, Banking & Finance (originally from Mexico)
What is the type of work you do for your Spanish and LatAm clients?

We act, notably, for affluent families from Mexico, Spain, Chile and Colombia. The type of work we do for them involves the design and implementation of Luxembourg structures to carry out international investments.

Currently, we see a good amount of interest in the LatAm region to use Luxembourg-based structures. In our view, this is mainly motivated by Luxembourg’s economic and legal stability and the increasing interest in asset protection against the current political situation in several LatAm countries.

How active you are in the Spanish and LatAm regions?

We are very active and travel to Spain and LatAm frequently. Also, as an independent firm, we have developed a large network of local business contacts with whom we work regularly.

We regularly speak at key conferences and events in the legal sector that take place in Spain and LatAm; this helps to strengthen our brand in the Spanish and LatAm markets and our visibility in these markets has contributed to the growth we have experienced over the last few years. As an example, David Cordova Flores will attend the International Bar Association (IBA) Annual Conference taking place in Mexico City from 15-20 September and the week after he will speak at the STEP LATAM conference in Buenos Aires.

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Women who inspire: Finance – Rocío García-Santiuste https://sff-camara.com/uncategorized/women-who-inspire-finance-rocio-garcia-santiuste/ Tue, 17 Sep 2024 07:15:56 +0000 https://sff-camara.com/?p=15021 In the section “Women who Inspire: Finance” of this new edition of SFF Magazine, we interviewed Rocío García-Santiuste, Partner of the law firm Van Campen Liem in Luxembourg. This section […]

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In the section “Women who Inspire: Finance” of this new edition of SFF Magazine, we interviewed Rocío García-Santiuste, Partner of the law firm Van Campen Liem in Luxembourg.

This section aims to give visibility to women professionals who lead and develop their careers in the financial sector in Luxembourg. Thus, the Chamber aims to promote equality and diversity in the financial services industry, as well as to inspire and encourage the professional development of women in this sector.

In this short interview, Rocío tells us about her experience and career in the Luxembourg financial sector, and presents her vision of how the role of women in this industry has evolved in recent years.

Watch the full interview in the following video (available only in Spanish):

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Political agreement reached on the EU banking package: what to know and be ready for the upcoming CRR III and CRD VI regulatory landscape https://sff-camara.com/sff-magazine-september-2023/political-agreement-reached-on-the-eu-banking-package-what-to-know-and-be-ready-for-in-the-upcoming-crr-iii-and-crd-vi-regulatory-landscape/ Mon, 18 Sep 2023 15:46:15 +0000 https://sff-camara.com/?p=11664 The European Parliament and the Council have reached a political agreement on the new Capital Requirements Directive VI (CRD VI), together with the Capital Requirements Regulation (CRR III), which constitute […]

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The European Parliament and the Council have reached a political agreement on the new Capital Requirements Directive VI (CRD VI), together with the Capital Requirements Regulation (CRR III), which constitute the implementation of the final set of international standards of Basel III in the European Union. 

It is expected that the legal texts of both CRR III and CRD VI will be published in the coming weeks, and important changes are to be expected to ensure strong supervision and sound prudential regulation across the European Union, while taking also into consideration Environmental, Social and Governance (ESG) risks in the EU banking sector.

 KEY CHANGES

1.1. An additional supervision of acquisitions and divestures, and mergers and divisions

CRD VI introduces a new set up of regulation governing not only the acquisition and disposal of qualifying holdings (as was the case in previous directives), but also in case institutions intend to acquire or divest a holding exceeding 15% of their eligible capital. In that case, they will need to previously notify and get the approval or non-objection from the competent authority, as it is the case with the abovementioned procedure on qualifying holdings. It is worth noting that Luxembourg law is already providing for a similar regime.  Should the acquisition under the new regime also concern a qualifying holding in a credit institution, both notifications would then be required. 

CRD VI will also include a new set of rules that will regulate material transfers of assets and liabilities (commonly structured through business transfers agreements). Under the amended CRD, a prior notification shall be filed with the competent authority and, while it still depends on the final version of the legal text of the CRD VI that is still to be published following the political agreement between the EU Parliament and the Council, the competent authority may have the possibility to oppose to the intended transaction. 

Finally, CRD VI also establishes a notification procedure in case of mergers and divisions, with a similar procedure to those described above. In this case, there will be an obligation to notify the competent authority in advance of the completion of the proposed transaction, and the closing of the intended operation will then be subject to the issuance, by the competent authority, of a positive opinion on the merger or division.

1.2. The introduction of new provisions regarding the fit and proper assessment of directors

CRD VI seeks to also amend the framework applicable to the fit and proper assessments of directors of institutions in the banking sector. To do so, and depending on the final version that will be published of the CRD VI, we note that attention will paid to a more thorough assessment of the proposed directors of the institutions subject to its provisions by, for example, foreseeing that a simple absence of criminal conviction or of ongoing criminal prosecution would not, as such, suffice to prove the good repute and of honesty and integrity of the proposed directors.

Concerning the overall composition of the management body and, pending to be confirmed by the final version that will be published as well, CRD VI could also foresee that the management bodies of institutions shall reflect an adequately broad range of experiences, and institutions could be required to put in place a policy setting a target for the minimum representation of the underrepresented gender and concrete measures to balance gender participation. In addition, members of the management body could also need to be trained on ESG and ICT-related risks, so they are able to understand the risks the institution is exposed to, in the short, medium and long term.

Overall, the provisions that concern the amendments relating to the management body remain at this stage rather uncertain, and the final changes made to its regulation will need to be clarified with the publication of the final text of CRD VI. They are to be viewed as an evolution of the rather detailed EBA standards that are currently applicable.

“Members of the management body could also need to be trained on ESG and ICT-related risks, so they are able to understand the risks the institution is exposed to, in the short, medium and long term.”

1.3. The strengthening of risk management: managing ESG risks

One important aspect that has been raised is the relevance of the ESG subject in the banking industry. In this respect, it is foreseen that institutions will need to have, as part of their governance, robust strategies, processes, and systems so they are able to identify, measure, and monitor the ESG risks to which the institution is subject to in the short, medium, and long term horizon.

To demonstrate how the above is an important piece of legislation in the upcoming banking package, it is also established that the competent authorities will have supervisory powers to assess and monitor the plans prepared by the institutions in relation to the managing of the ESG strategy and risk management.

 1.4. A new regulatory framework for third-country branches

CRD VI has established a requirement to establish a branch for the provision of certain services by third-country (i.e., non-EU) firms, which could potentially prevent a wide range of institutions from providing services into the EU on a cross-border basis.

However, the principle requiring the establishment of an authorised branch in the territory of the EU has some exceptions, such as in case the services/activities provided by that third-country firm are to (a) a customer/counterparty that is established/situated in the EU and it has approached the third-country firm on a reverse solicitation basis (meaning that it is the client that at its sole initiative requires the services of that third-country firm); to (b) a credit institution, and to (c) an undertaking of the same group as that of the undertaking established in the third country.

Although the final details of the new regime are yet to be determined, it is important to note that the scope of the provisions relating to the establishment of a third-country branch would not apply where such branch would only provide investment services defined under MiFID (such as, for example, provision of investment advice or portfolio management services). In that case the MiFID third country regime applies.

OTHER LEGISLATION TO THE NEW BANKING PACKAGE REFORMS

It is expected that the competent authorities, and particularly the European Banking Authority (EBA), will develop regulatory technical standards (RTS), as well as interpretative guidelines to ensure a consistent interpretation of the new banking package throughout the Member States of the European Union.

NEXT STEPS

Following the publication in the EU Official Journal, it is expected that CRD VI will enter into force on 1 January 2025. Although it may seem that it is still a long way off, it is important for institutions to prepare for the new regulatory framework and start reviewing their internal governance (whether it is at the management level, or reviewing policies and procedures), as well as other aspects of their business activity that may be potentially impacted by it.

Do not hesitate to contact us and be ready for the entering into application of the new EU banking package!

Authors

Marc Mouton

Partner
Arendt & Medernach SA

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