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Country Writer: Stanislas Dwernicki
GIDE LOYRETTE NOUEL
Tel: +48 (0) 22 583 67 01
www.gide.com
FIRM PROFILE
Gide Loyrette Nouel is one of the most prestigious
independent law firms in Europe. It is the leading international
French firm with 82 partners and over 400 associates drawn from
over 28 different nationalities. Operating out of 16 offices in
15 different countries world-wide, the Firm offers some of the most
respected specialists in each of the various sectors of national
and international business law.
The Firm has offices in Europe (Brussels, Bucharest, Budapest, Istanbul,
London, Moscow, Paris, Prague and Warsaw), North America (New York),
Asia (Beijing, Hanoi and Shanghai), the Middle East (Riyadh) and
North Africa (Casablanca and Tunis).
POLAND SECURITISATION MARKET STATEMENT
Strong opportunities exist at present in relation
to carrying out securitisation transactions in Poland, although
legally securitisation is here still at an early stage of development.
While securitisation has not been yet practiced
on a significant scale (three transactions of less than USD 5 millions
each), through GLN Warsaw office we see increasing interest in the
industry from market participants, both from private sector financial
institutions and the Polish regulatory authorities.
We consider that a securitisation market is about
to emerge in Poland, owing to: (1) country's risk rating after more
than ten years of market economy; (2) growth of credits activities
(credit cards, mortgages, auto loans) giving rise to significant
and sharply growing pools of receivables; (3) foreign investments
and corporate consolidation bringing about local champions (telecom
operators, insurance companies, banks) with assets to be assigned;
(4) large public utility companies facing financial or financing
issues; (5) growing interest of financial institutions (local and
international banks) and investors (pension funds) for securitisation
transactions and (6) accession to the European Union, targeted for
2004, and integration with European debt market.
However, against this background of increasing investor/originator
demand and a variety of opportunities for suitable securitisation
assets we have to acknowledge that an adequate legal system has
not yet become a reality.
Among the hurdles for securitisation that still
exist on the Polish market, we count: civil actions tax on the sale
of receivables to an SPV (special purpose vehicle) burdening on
non-VAT entities; bank confidentiality laws and the uncertainty
of non-consolidation of SPV assets with those of the originator.
Our point of concern is also that in order to effectively transfer
receivables encumbered with real securities, SPV needs to register
itself as a new beneficiary of the security with a competent court
what triggers increased costs and administrative difficulties.
Finally, strict legal framework on investing in
non-public or non fully secured issues imposed on investment funds,
pension funds and insurance companies, regulations regarding protection
of individuals' (i.e. consumers') data also may constitute a barrier
for the industry. All these issues have been recognized by market
participants and the market expects them to be addressed by authorities,
in proposed changes in the law.
It stems that Polish legal environment makes the
securitisation market yet more exacting and complex than in fully
grown economies.
As Poland is expected to join the European Union
as of May 1, 2004, harmonization of the legal framework is currently
underway. Major improvements to the law in relation to issues such
as bankruptcy have been already introduced (effective as of October
1, 2003) and others, such as amendments of the Banking Law are to
be implemented until the end of 2003. Further regulations facilitating
securitisation are yet to come. Such changes should encourage market
participants and accelerate the development of securitisation in
Poland.
GLN POLISH SECURITISATION CONTACT
Stanislas
Dwernicki
GLN SECURITISATION PRACTICE
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