Droit bancaire et financier en Belgique – Bank- en financieel recht in België
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 →
In an earlier article (May 2020), we reviewed crowdfunding and crowdlending in Belgium and the draft European Regulation then under study, including its treatment of cross-border crowdfunding services. The Crowdfunding Regulation (ECSPR) in brief The European Union has since published the Regulation of 7 October 2020 (ECSPR, European Crowdfunding Service Providers Regulation), which entered into... Continue Reading →
Update 14/02/2022: the Belgian State has just been held liable for negligence in implementing the basic banking service, following numerous bank account closures. See our analysis of de-risking and the related legal liabilities. How the basic banking service for businesses came about In November 2020, we published an article on the Act of 8 November... Continue Reading →
An interest rate of 15.40% per year? In our review of Belgian banking case law for 2019, we came across numerous decisions on the application of high default interest rates, in a context of generally low market rates. The interest rate applied by a bank has been debated for decades. In a case before the... 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 facts: an insurance broker offered his client Koblis The Kobelco case caused a stir in Flanders in the late 2000s. Kobelco, active in the life insurance sector before being declared bankrupt in 2009, offered investors a product called KOBLI, providing an investment of a given amount over a one-year horizon, in return for an... Continue Reading →
Bank third-party attachment A third-party attachment is, in short, an attachment levied by a creditor in the hands of its debtor's debtor. It is common in banking law: the creditor attaches the bank (the garnishee), which holds funds of its client (the attached debtor). The bank must then freeze the debtor's accounts and declare the... Continue Reading →
What is a (first demand) guarantee? A bank guarantee is a tripartite mechanism by which a bank undertakes towards a beneficiary to pay a set sum, in the cases and on the terms set out in a guarantee letter. Where the guarantee is a first demand guarantee, the beneficiary need only apply to the bank... Continue Reading →
The regulation of cryptocurrencies in Belgium and Europe is being prepared. Below is a brief account of some legal questions on cryptocurrencies and on the regulation of crypto-assets and other virtual currencies then under development (18 June 2021). I. Definitions: crypto-assets and cryptocurrencies The European Banking Authority (EBA) and the European Securities and Markets Authority... Continue Reading →
This article is part of our International Sanctions and Restrictive Measures guide. A bank had suspended payment operations for the benefit of a company whose name, "Persian", evoked Iran, a country under an international sanctions regime that banks must imperatively take into account. Embargoes, money laundering and terrorist financing: heavy sanctions and obligations that override... Continue Reading →
In an earlier article we described the case of two elderly phishing victims and a 2019 decision of the Antwerp courts. That decision has now been confirmed by the Antwerp Court of Appeal, in November 2020. Phishing is on the rise Phishing is a fraud by email, SMS, WhatsApp or other online means by which... 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 bill allowing the reverse mortgage mechanism (crédit logement inversé) to emerge in Belgian law has just been tabled in the Chamber. Fourteen years after the subprime crisis, caused among other things by aggressive and risky mortgage formulas in the United States, will Belgian law soon see this new form of credit, allowing mainly elderly... Continue Reading →
In six days, the GameStop share went from USD 43.03 to USD 347.51. How? Through a short squeeze orchestrated by internet users. Under Belgian financial criminal law, can this be treated as market manipulation or market abuse? An unexpected explosion in the shares of a struggling company GameStop sells video games in stores, a struggling... Continue Reading →
Febelfin, the Belgian financial sector federation, and the Minister of Finance agreed on a new moratorium, outside the statute, on the repayment of credits granted to businesses. A further payment deferral is thus granted to businesses in difficulty because of the Covid-19 crisis. It became possible to request a deferral of the instalments provided in... Continue Reading →
A short (non-exhaustive) overview of the depositary's obligations under the UCITS V rules. Directive 2014/91 (UCITS V) provides that the depositary's liability cannot be contractually excluded or limited as regards the loss of instruments held in custody. The directive takes over the main measures of the AIFM directive, applicable to managers of alternative investment funds... Continue Reading →
The Belgian Act of 20 December 2020 on temporary and structural provisions in matters of justice in the context of the fight against the spread of Covid-19 affects attachments until at least 31 January 2021. Among the measures adopted: a temporary increase of the non-attachable thresholds (Article 1409 of the Judicial Code) and an extension... Continue Reading →
Deux clients (62 et 89 ans) ont été victime d'un phishing pour plus de 50.000 EUR. Ils ont assigné leur banque à Anvers. Comment le tribunal a-t-il analysé la situation ?
