The author critically evaluates the transposition of the Directive 2002/47/ES on the Financial Collateral Arrangements into the Slovenian law, focusing particularly on the concept of the title transfer financial collateral arrangement.
The author critically evaluates the transposition of the Directive 2002/47/ES on the Financial Collateral Arrangements into the Slovenian law, focusing particularly on the concept of the title transfer financial collateral arrangement. He substantiates his arguments that the Recital 13 of the Directive prevents characterisation of the financial instrument title transfer as a right in rem security interest including but not limited to the fiduciary transfer. The legal features of the title transfer under the Directive and under the Slovenian Financial Collateral Act (ZFZ) exceed the nature of the fiduciary transfers to such an extent that the title financial collateral arrangement must be considered outside the scope of the fiduciary transfers and as an independent type of transactions
– financial collateral arrangements. With respect to the issues of the Directive lacking an adequate transposition into the Slovenian law, the author offers legal argumentation that nevertheless enables the interpretation of the ZFZ in accordance with the Directive. However, due to the economic importance of financial collateral arrangements, the author still recommends adoption of the relevant amendments to the ZFZ as soon as possible.
Keywords: financial collateral, title transfer financial collateral, cash, financial instruments, markets, rights in rem security interest, fiduciary transactions, characterisation, derivatives, mark to market, personal validity, third countries, Brexit, interpretation, close out netting, international private law, renvoi, Basel framework.