Date of meeting: 20 September 2023
Time: 3pm to 4.30pm| Location: Bank of England, Threadneedle Street, London EC2R 8AH (Hybrid Meeting held via Teams)
Minutes
Minute 1: Introduction and Minutes
The minutes of the meeting of 21 June 2023 were approved and the revised terms of reference were approved in the form previously circulated to the committee.
Minute 2 - Clifford Chance LLP presentation on Russian sanctions
Helen Carty and Michael Lyons gave the committee an overview of Russian sanctions and recent developments in disputes involving Russian parties. After the Russian invasion of Ukraine there has been a noticeable surge in the volume of claims filed in the UK, including tort and contract claims filed by Russian and non-Russian parties seeking the reimbursement of money owed to them where sanctions have actually or purportedly prevented payment or otherwise interrupted performance. This has included claims in relation to assets held in CSDs and debt claims by sanctioned entities. The presenters noted that they had not seen any Bilateral Investment Treaty claims.
There are also claims being brought in Russia against non-Russian persons who have not performed contracts or obligations due to sanctions. Notably in this context, Russian courts have the ability to override jurisdiction clauses where a jurisdiction other than Russia was agreed upon and the claimant is a Russian party alleging non-performance due to sanctions on Russia. There has been an increase in freezing orders and injunctions in Russian courts. The entities whose assets were subject to seizure can of course go to non-Russian courts and get anti-suit injunctions, although Russian courts can issue their own anti-anti-suit injunctions. The prospects of successfully defending claims brought in Russian courts are close to zero. It has proven difficult to get documents in and out of Russia; this has made it challenging to secure powers of attorney in the country or retain legal representation in Russia, with the additional practical challenge of paying Russian counsel given the sanctions regimes currently in force.
The lessons learnt have been to take advantage of the wind-down period of sanctions and not to delay.
Minute 3 – Briefing on CLS market engagement on FX settlement risk
Andrew Cooper and Lisa Danino-Lewis from CLS Services Limited (CLS) briefed the committee on the outcome of CLS’s market engagement on FX settlement risk and the impact of the introduction of the new T+1 settlement period for securities trades in the United States (US), which is proposed to commence in June 2024.
By way of background, Lisa and Andrew suggested the asset manager community does not currently have a problem as securities are traded on a T+2 basis and FX is done on T+1 basis. However, following the introduction of the T+1 settlement period for securities in the US, asset managers will only have a two-hour window between 10pm and 12am (CET) to submit instructions via CLS to settle trades in US securities the following day. From their initial research on prior transactions, Lisa and Andrew observed that <1% of CLS’s existing notional for settlement ($6.5trillion) would be impacted due to the fact that few of them are linked to US securities trades. Lisa and Andrew suggested that these timing issues could be exacerbated where an intermediary or custodian through which the parties operate imposes different cut-off timescales. CLS is currently looking at a number of options to address this issue, including the potential to adapt their service to change timescales or allow for T0 FX trades.
Minute 4: Any other business
There was no other business to discuss.
Attendees
Sharon Blackman (Chair) – Citigroup
David Harris – Financial Conduct Authority
Gaynor Wood – CLS
Rakesh Shah – Standard Chartered
Rowland Stacey – Goldman Sachs
Simon Goldsworthy – Deutsche Bank
Sunil Samani - XTX Markets
Tamsin Rolls – JP Morgan Chase
FXJSC Legal Sub-Committee Secretariat
George Johnston (Secretary) - Bank of England
Matthew Hartley – Bank of England
Hana Mori – Bank of England
Shirlyn Gathoni – Bank of England
Guest attendees
Helen Carty - Clifford Chance LLP
Michael Lyons – Clifford Chance LLP
Andrew Cooper - CLS Services Limited
Lisa Danino-Lewis - CLS Services Limited
Dominic Philips – Morgan Stanley
Apologies
Harkamal Singh Atwal – HSBC
Krisha Somaiya – UBS
Navin Mathur – LSEG
Nimisha Kanabar - Morgan Stanley
Mayank Patel – Bank of America
Baljit Saini - NatWest Markets