Client Offering CSDR Risk Disclosure
CREDIT SUISSE BRAZIL (BAHAMAS) LIMITED
ARTICLE 38(6) CSDR PARTICIPANT DISCLOSURE: BAHAMIAN LAW
The purpose of this document is to disclose the levels of protection associated with the different levels of segregation that we provide in respect of securities that we hold directly for clients with Central Securities Depositories within the EEA (CSDs), including a description of the main legal implications of the respective levels of segregation offered and information on the insolvency law applicable. This disclosure is required under Article 38(6) of the Central Securities Depositories Regulation (CSDR).
Under CSDR, the CSDs of which we are a direct participant (see glossary) have their own disclosure obligations and we include links to those disclosures in this document.
This document is not intended to constitute legal or other advice and should not be relied upon as such. Clients should seek their own legal advice if they require any guidance on the matters discussed in this document.
In our own books and records, we record each client's individual entitlement to securities that we hold for that client in a separate client account. We also open accounts with CSDs in our own (or in our nominee's) name in which we hold clients' securities. We currently make two types of accounts with CSDs available to clients: Individual Client Segregated Accounts (ISAs) and Omnibus Client Segregated Accounts (OSAs).
An ISA is used to hold the securities of a single client and therefore the client's securities are held separately from the securities of other clients and our own proprietary securities.
An OSA is used to hold the securities of a number of clients on a collective basis. However, we do not hold our own proprietary securities in OSAs.
3. Main legal implications of levels of segregation
Clients' legal entitlement to the securities that we hold for them directly with CSDs would not be affected by our insolvency, whether those securities were held in ISAs or OSAs.
The distribution of the securities in practice on an insolvency would depend on a number of factors, the most relevant of which are discussed below.
Application of Bahamian insolvency law
Were we to become insolvent, our insolvency proceedings would take place in The Bahamas and be governed by Bahamian insolvency law.
Under Bahamian law, securities that are being held for the benefit of our clients must be segregated from assets belonging to us. Depending on the circumstances, such client securities may be held in an OSA or an ISA. Further, Bahamian law also requires that securities held for the benefit of our clients must be identified as such in our records, in the client’s ledger, and the client’s statement of account.
On the basis of the foregoing, where securities are held as discussed above and our records reflect a particular client’s entitlement to the securities it holds, under Bahamian insolvency law the securities held on behalf of clients would not form a part of our insolvent estate and would consequently not be available for distribution to our creditors.
Clients whose securities are held in this way should be protected in the event of our insolvency and should not be required to submit proof of their claim to such assets in the administration of our insolvent estate. This applies whether the securities are held in an OSA or an ISA.
Nature of clients' interests
Although our clients' securities are registered in our name at the relevant CSD, we hold them on behalf of our clients, who are considered as a matter of law to have a beneficial proprietary interest in those securities. This is in addition to any contractual right a client may have against us to have the securities delivered to them.
This applies both in the case of ISAs and OSAs. However, the nature of clients' interests in ISAs and OSAs is different. In relation to an ISA, each client is beneficially entitled to all of the securities held in the ISA. In the case of an OSA, as the securities are held collectively in a single account, each client is normally considered to have a beneficial interest in all of the securities in the account proportionate to its holding of securities.
Our books and records constitute evidence of our clients' beneficial interests in the securities. The ability to rely on such evidence would be particularly important on insolvency. In the case of either an ISA or an OSA, an insolvency practitioner may require a full reconciliation of the books and records in respect of all securities accounts prior to the release of any securities from those accounts.
We are subject to the regulatory supervision of the Securities Commission of The Bahamas and governed by the applicable legislation in The Bahamas which contain strict and detailed requirements as to the maintenance of accurate books and records and the reconciliation of our records against those of the CSDs with which accounts are held. We are also subject to regular inspections to ensure our observance of the rules applicable to our securities business in The Bahamas. Further, we are required to report periodically to the Securities Commission concerning our compliance with rules related to segregation of client assets.
If there were a shortfall between the number of securities that we are obliged to deliver to clients and the number of securities that we hold on their behalf in either an ISA or an OSA, this could result in fewer securities than clients are entitled to being returned to them on our insolvency. The way in which a shortfall could arise would be different as between ISAs and OSAs (see further below).
How a shortfall may arise
A shortfall could arise for a number of reasons including as a result of administrative error, intraday movements or counterparty default following the exercise of rights of reuse. A shortfall may also arise in the case of an OSA as a result of securities belonging to one client being used or borrowed by another client for intra-day settlement purposes.
Where we have been requested to settle a transaction for a client and that client has insufficient securities held with us to carry out that settlement, we generally have two options:
- (i) in the case of both an ISA and an OSA, to only carry out the settlement once the client has delivered to us the securities needed to meet the settlement obligation; or
- (ii) in the case of an OSA, to make use of other securities held in that account to carry out settlement subject to an obligation on the part of the relevant client to make good that shortfall and subject to any relevant client consents required.
Where option (ii) is used, this increases the risks to clients holding securities in the OSA as it makes it more likely that a shortfall in the account could arise as a result of the relevant client failing to meet its obligation to reimburse the OSA for the securities used.
In the case of an ISA, only option (i) above would be available, which would prevent the use of securities in that account for other clients and therefore any resulting shortfall. However, it also increases the risk of settlement failure which in turn may incur additional buy in costs or penalties and/or may delay settlement as we would be unable to settle where there are insufficient securities in the account.
Where clients’ securities are held in an OSA, we will use option (ii) in accordance with agreed contractual terms.
Treatment of a shortfall
In the case of an ISA, the whole of any shortfall on that ISA would be attributable to the client for whom the account is held and would not be shared with other clients for whom we hold securities. Similarly, the client would not be exposed to a shortfall on an account held for another client or clients.
In the case of an OSA, the shortfall would be shared among the clients with an interest in the securities held in the OSA (see further below). Therefore, a client may be exposed to a shortfall even where securities have been lost in circumstances which are completely unrelated to that client.
If a shortfall arose, which is not covered prior to our insolvency, our clients would be required to submit proof of their claim to the liquidator appointed in our insolvency. Such clients would be unsecured creditors and rank pari passu with all of our other unsecured creditors.
In these circumstances, clients could be exposed to the risk of loss on our insolvency. If securities were held in an ISA, the entire loss would be borne by the client for whom the relevant account was held. If securities were held in an OSA, the loss would be allocated between the clients with an interest in that account.
In order to calculate clients’ shares of any shortfall in respect of an OSA, each client’s entitlement to securities held within that account would need to be established as a matter of law and fact based on our books and records. Any shortfall in a particular security held in an OSA would then be allocated among all clients with an interest in that security in the account. It is likely that this allocation would be made rateably between clients with an interest in that security in the OSA, although arguments could be made that in certain circumstances a shortfall in a particular security in an OSA should be attributed to a particular client or clients. It may therefore be a time consuming process to confirm each client’s entitlement. This could give rise to delays in returning securities and initial uncertainty for a client as to its actual entitlement on an insolvency. Ascertaining clients’ entitlements could also give rise to the expense of litigation, which could be paid out of clients’ securities.
4 Security interests
Security interest granted to third party
Security interests granted over clients’ securities could have a different impact in the case of ISAs and OSAs.
Where a client purported to grant a security interest over its interest in securities held in an OSA and the security interest was asserted against the CSD with which the account was held, there could be a delay in the return of securities to all clients holding securities in the relevant account, including those clients who had not granted a security interest, and a possible shortfall in the account. However, in practice, we would expect that the beneficiary of a security interest over a client’s securities would perfect its security by notifying us rather than the relevant CSD and would seek to enforce the security against us rather than against such CSD, with which it had no relationship. We would also expect CSDs to refuse to recognise a claim asserted by anyone other than ourselves as account holder.
Security interest granted to CSD
Where the CSD benefits from a security interest over securities held for a client, there could be a delay in the return of securities to a client (and a possible shortfall) in the event that we failed to satisfy our obligations to the CSD and the security interest was enforced. This applies whether the securities are held in an ISA or an OSA. However, in practice, we would expect that a CSD would first seek recourse to any securities held in our own proprietary accounts to satisfy our obligations and only then make use of securities in client accounts. We would also expect a CSD to enforce its security rateably across client accounts held with it.
Furthermore, rules in The Bahamas require client consent before a security interest may be created over securities held in a client account.
Set out below are links to the disclosures made by the CSDs in which we are participants:
These disclosures have been provided by the relevant CSDs. We have not investigated or performed due diligence on the disclosures and clients rely on the CSD disclosures at their own risk.
Central Securities Depository or CSD is an entity which records legal entitlements to dematerialised securities and operates a system for the settlement of transactions in those securities.
Central Securities Depositories Regulation or CSDR refers to EU Regulation 909/2014 which sets out rules applicable to CSDs and their participants.
direct participant means an entity that holds securities in an account with a CSD and is responsible for settling transactions in securities that take place within a CSD. A direct participant should be distinguished from an indirect participant, which is an entity, such as a global custodian, which appoints a direct participant to hold securities for it with a CSD.
EEA means the European Economic Area
The information in this document is provided by Credit Suisse Brazil (Bahamas) Limited (hereinafter referred to as “CS”), a bank organized under the laws of the Commonwealth of The Bahamas, with due care and to the best of its knowledge and belief. It is provided solely for regulatory information purposes and does not constitute any advice or recommendation in matters such as investment, finance, tax, accounting or legal and is not based on any consideration of the personal circumstances of the recipient. It does not release the recipient from exercising his/her own independent judgment. In particular, the recipient should check whether the information provided is in line with his/her own circumstances regarding any finance, tax, legal, regulatory or other considerations, if necessary with the help of a professional advisor. The information provided herein is not legally binding and does not constitute any offer, invitation, advice or recommendation to enter into any transaction. The information is derived from sources believed to be reliable. CS provides no guarantee with regard to the content and completeness of the information and does not accept any liability for losses that might arise from making use of the information.