Banking and Finance law in Belgium
Droit bancaire et financier en Belgique – Bank- en financieel recht in België
Interest rate swaps (IRS) are derivative products known as hedging instruments. In a rising-rate environment, they offer the opportunity to determine and fix future costs on a credit agreement. They can also prove to be a dangerous speculative instrument. This is a brief analysis of how they work and of the legal issues they raise... Continue Reading →
The issue The characterisation of insurance-based investment products raises several questions about the regulatory framework applicable to insurance intermediaries and their liability for breach of the duty to advise. In its judgment C-542/16 of 31 May 2018, the Court of Justice of the European Union held that financial advice on the investment of capital, given... Continue Reading →
In our articles on the SFDR Regulation (2019/2088) and the Taxonomy Regulation (2020/852), we recalled that one objective of the European legislator in framing sustainable finance was to increase transparency in order to prevent greenwashing. What is greenwashing? Greenwashing is the misleading use of claims of good ecological practice in marketing or communication. Under the... Continue Reading →
Towards an awareness of sustainable finance? Until recently, climate issues were not among the financial sector's concerns. Today we are seeing a reversal. The terms sustainable finance, responsible investment and green finance are used by all players in the sector. Greenwashing or genuine awareness? (Greenwashing: the misleading use of arguments claiming good ecological practices in... Continue Reading →
We revisit a case that sheds light on the October 2007 acquisition of the Dutch bank ABN Amro by the consortium of Fortis, Royal Bank of Scotland and Santander, and on the issue and status of certain particular financial instruments. 1. The issue of instruments (CCEN and MCS) to acquire ABN Amro in 2007 In... Continue Reading →
The case: a sell order the bank did not execute A private-banking investor, who had concluded an execution-only agreement (mere order execution, no investment advice or discretionary management) with a bank, complained that it had not executed his instructions to sell subscription rights he held. The bank considered such an order exceeded the agreement's limits... Continue Reading →
The Brussels Court of First Instance referred to the public prosecutor the file of an insurance broker who had gone a little too far in assisting his client, actively advising him on financial products. Carrying on investment advice or portfolio management without the appropriate authorisation is a criminal offence. The need for prior authorisation to... Continue Reading →
Gold has always attracted investors who value its relative stability, especially in turbulent markets. Offering an investment in physical gold raises an important question in financial law: does it meet the notion of an investment instrument under Belgian law? Is a prospectus or an information note required, or nothing? Different ways to invest in gold... Continue Reading →
This article relates to another on investment advice given by an insurance broker, and is an extract from our "Banking Case Law Barometer 2019", published in the D.A.O.R. review. A case before the Liège Court of Appeal gave rise to an interesting decision on the liability of an insurance broker for advice on branch 23... Continue Reading →
A client dies after entrusting his bank with a discretionary portfolio management mandate. Must the bank immediately liquidate the managed portfolio? May it continue discretionary management after death? What risks does the bank run towards the heirs if it continues, or if, on the contrary, it no longer performs a single act on the portfolio... Continue Reading →
In a case brought to our attention, a wealthy client sued a private bank in liability for losses on financial investments made under a discretionary portfolio-management agreement. The principle: the manager's fault cannot be inferred from the result The Court of Appeal first recalled that the manager's obligations are obligations of means, and that a... Continue Reading →
The principle The MiFID II Directive requires firms providing investment services (executing orders or investment advice, private banking style) to keep, as evidence, a record of every investment service provided and every investment activity or transaction. This includes recording investment orders placed by telephone between an investor client and the banker. As soon as a... Continue Reading →
EMIR Refit aims to provide more proportionate rules for over-the-counter derivatives, helping to reduce costs and regulatory burdens for market participants without compromising financial stability. EMIR Refit includes wide ranging changes to the application EMIR. The key changes can be summarized as follows: 1. Entity scope EMIR Refit will result in an expansion of the... Continue Reading →
The context: discretionary management in question and a lost reinvestment opportunity A wealthy client sued his banker, complaining that, after liquidating all the financial instruments in his portfolio, the banker had been slow to reinvest the resulting cash, whereas, according to the client, the banker was responsible for managing his assets. For the client, a... Continue Reading →
Many companies devise alternative remuneration plans to attract and retain their employees. One such is the Stock Option Plan (SOP), under which employees may receive options allowing them, in time, to acquire their employer's shares at a pre-set price. That exercise right usually lapses if the employee leaves the company. Belgian tax law requires the... Continue Reading →
