PORTUGAL Law and Practice Contributed by: Benedita Aires and Orlando Vogler Guiné, VdA
investors, family offices, private equities, funds and others. EU-regulated entities are subject to certain constraints, such as due diligence on the transaction, including by confirming that the originator (or another eligible entity) agreed to retain a relevant net economic exposure (under
interest in this sort of transaction among origi - nators. Article 8(4) of the Securitisation Law sets out specific provisions regarding the segregation of the assets included in the underlying portfolio of a synthetic securitisation. However, under the established interpretation discussed with the CMVM, the Securitisation Law will only apply if a regulated SPE is used in Portugal, and not, for instance, in the case of a direct credit-linked note issuance by the originator, which instru - ment has been used in the market. As the originators are credit institutions, they are supervised by the relevant banking supervisors (and by the relevant securities regulator if a pro - spectus is required). In 2019, the Portuguese market saw the first syn - thetic securitisation carried out in compliance with CRR requirements, while 2021 witnessed the first synthetic STS deal. The route of synthet - ic securitisations has been a continuing trend in the Portuguese market, including unfunded (and non-STS) transactions. Interested parties may also look into the structures commonly used in other jurisdictions for guidance, but Portuguese legal requirements may entail some adjustments.
the applicable EU, US or other laws). 4.14 Other Principal Laws and Regulations
Other than has been covered herein, there is nothing material to note in respect of securitisa - tion transactions in Portugal. 5. Synthetic Securitisation 5.1 Synthetic Securitisation Regulation and Structure Synthetic securitisation is permitted but remains less common. Such transactions are defined as securitisations under Article 1 (3), paragraph b) of the Securitisation Law and under Article 2 (10) of the Securitisation Regulation. In such securitisations, there are no receivables actually being assigned, but only a transfer of credit risk on a bilateral basis. In addition, they are pro - vided for as securitisation transactions in the banking laws and regulations, which provide the framework thereof in terms of capital treatment. They serve the same type of purpose as a credit default swap, with the relevant assets remaining in the originator’s balance sheet. The principal laws to take into account are the Securitisation Regulation, the Securitisation Law and the CRR. These transactions allow for the transfer of the credit risk of the underlying portfolio (even though there may then be exposure to the credit risk of the originator’s counterparties in the syn - thetic securitisation), which is why there is still
6. Structurally Embedded Laws of General Application
6.1 Insolvency Laws The Securitisation Law
The Securitisation Law (enacted by Decree- Law No 453/99, dated 5 November 1999, as republished by Law No 69/2019, of 28 August 2019 and amended from time to time) provides specific protections vis-à-vis the general legal regime of insolvency, compared to both an ordi -
346 CHAMBERS.COM
Powered by FlippingBook