In the recent decision in LBI EHF v. Raiffeisen Bank International AG [2018] EWCA Civ 719, the Court of Appeal has considered the close-out valuation provisions for "repo" trades entered into under a Global Master Repurchase Agreement (2000 edition). The court refused to limit the wide discretion given to a non-defaulting party to determine fair market value under the GMRA.
The factual background
Clydesdale Bank Plc v. (1) R Gough (t/a JC Gough & Sons) (2) Anne Michelle Gough [2017] EWHC 2230 (Ch)
(1) Citicorp Trustee Company Limited and (2) Golden Belt Sukuk Company BSC v. (1) Maan Al-Sanea and (2) Saad Trading, Contracting and Financial Services Co [2017] EWHC 2845 (Comm)
In this case, the High Court considered whether valid service had been effected upon two defendants based outside of the jurisdiction who had shown no willingness to be involved in the proceedings.
LBI EHF (in winding up) v. Raiffeisen Zentralbank Österreich AG and Raiffeisen Bank International AG [2017] EWHC 522 (Comm)
Background
Under the Pensions Act 2004 the Pensions Regulator (tPR) has the power to impose a financial support direction (FSD) requiring a company “connected or associated” with the sponsoring employer of a UK pension fund to provide financial support to the pension fund. To date tPR has used the power in insolvencies.
This summer has seen several pension issues making the news. They show how essential it is for employers and trustees to keep abreast of how developments impact on their arrangements.
Jay Doraisamy looks at five areas which have made the headlines this summer:
The administrators of Lehman Brothers International Europe (LBIE) have announced that, following a ruling in the Frankfurt Regional Court, LBIE’s client money claim against Lehman Brothers Bankhaus AG (Bankhaus) is to be included in the insolvency claims of Bankhaus as an ordinary creditor. The judgment should result in a higher payout for LBIE’s client money claimants.(Source: Update on Client Money Held at Lehman Bankhaus)
The High Court has recently considered whether a bankrupt individual of pensionable age can be forced to draw his pension to pay his creditors.
Raithatha v. Williamson [2012] EWHC 909 (Ch)
Background
A bankruptcy order was made against Mr Raithatha on 9 November 2010. Mr Raithatha's trustee in bankruptcy applied for an income payments order (IPO) against Mr Raithatha's pension shortly before he was due to be discharged from bankruptcy. Mr Raithatha was then aged 59 and his pension scheme allowed him to draw a pension from age 55.
Pension scheme assets can rise and fall. So can liabilities. The timing of the section 75 debt calculation is, therefore, critically important to the ability of the scheme to meet its liabilities.
So when should trustees calculate their section 75 debt? Can they use one date to calculate scheme assets and choose a different date to calculate the cost of buying out the scheme’s liabilities?
TPR settled its dispute with Michael Van de Wiele (VdW) in relation to its UK pension scheme and issued a Contribution Notice (CN) for £60,000. Although this is significantly less than the £21 million originally sought and the £5.08 million decided by the Determinations Panel, TPR says it is “business as usual” for the use of its statutory anti-avoidance powers. A settlement at this level might be viewed as a defeat for TPR and an indication that CNs are not a potent weapon to deal with the avoidance of employer debts. That view would be seriously misguided.