Finality 'of Orders Of Transfer In A Payment System Or Securities Regulations

Original Language Title: Definitivita' Degli Ordini Di Trasferimento In Un Sistema Di Pagamento O Di Regolamento Titoli

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Microsoft Word - D045-2007.doc SAN MARINO We the Captains Regent of the Most Serene Republic of San Marino Having regard to Article 4 of the Constitutional Law no.185 / 2005 and Article 6 of Qualified Law n.186 / 2005; Promulgate and publish the following ordinary law approved by the Great and General Council at its meeting on 13 March 2007. LAW 23 March 2007 Ranked # 45 DEFINITIVENESS ORDERS TRANSFER IN A SYSTEM OF PAYMENT OR SECURITIES REGULATION Art. 1 (Introduction, motivations and technical purposes - legal) 1. in the Republic of San Marino is in force Law 17 of November 15, 1917 and subsequent amendments regarding the disposal of assets to creditors, agreed and concurrence of creditors, as well as the law 17 November 2005 n. 165 in terms of business on the banking, financial and insurance. 2. The Republic of San Marino with Decree 19 of February 8, 2001 has given full and complete effect to the Monetary Agreement reached between the Republic of San Marino and the Italian Republic, on behalf of the European Community, signed in San Marino November 29, 2000 . 3. the bodies, as well as definititi in e), Article 2 of this law, adhere to payment and securities settlement systems and San Marino can access the systems provided for in Italian Legislative Decree 210 of 12 April 2001, implementing Directive 98 / 26 / EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems, as well as in existing Community systems within the European Union in compliance with the conditions provided for access these systems. 4. Participation of Entities to payment and securities settlement systems is necessary to enable the Board to carry out its statutory activity. 5. To ensure the participation referred to in the previous paragraph can not be ignored by the adoption of legislation that is consistent with the principles of the regulatory standards of the EU payment systems, since they are also, in addition to those of San Marino, the systems in which it takes place the activities of entities. 6. In payment systems which operate on the basis of a number of legal types of payment netting, in particular multilateral netting, are inherent important systemic risk; equally significant legal risks associated with participation in gross settlement systems in real time. 7. The reduction of legal risks associated with participation in such systems is of paramount importance, given the increasing development of the same. 8. E 'also of the utmost importance to reduce the risk associated with participation in securities settlement systems, in particular where there is a close connection between such systems and payment systems. 2 9. The reduction of systemic risk requires in particular so as to ensure the finality of transfer orders and the fast of the guarantee of financial instruments for the exclusive benefit of the systems. 10. A transfer order may not be revoked once entered into the system according to the rules of the same. 11. The insolvency proceedings must not have any kind of retroactive effects on the rights and obligations arising from participation in the system or on guarantees of financial instruments, as these are addressed exclusively to satisfy the secured loans. 12. The reduction of systemic risk ensures maximum transparency and legal certainty of transactions relating to transferable securities and also contributes to the efficient and economical operation of payment and securities settlement systems, promoting freedom of movement of capital. 13. This legislation aims to reduce the disruption to systems, arising from insolvency proceedings against a participant, and determine, in case of opening of insolvency proceedings against a participant in a system, which insolvency law is applicable to the rights and obligations of that participant in connection with its participation in the system. 14. In order to reduce the disruption to systems this legislation also applies to transactions carried out by central banks related to their function as central banks. 15. And 'appropriate that the Republic of San Marino takes action to realize a communication channel to establish appropriate links with the authorities delegated to the management of systems with which San Marino relates. 16. This Act shall be deemed dictated to the protection of economic public policy, pursuing the aims set out in paragraphs 7, 8, 9, 10, 11, 12, 13 and 14 of this Article. 17. The adoption of this law is the most appropriate way of realizing
the abovementioned objectives and does not go beyond what is necessary to achieve them. 18. This Act is to be read and interpreted with specialty character, meaning its only limited effects and exclusively to the participation in payment and securities settlement systems. Art. 2 (Definitions) 1. For the purposes of this Act shall apply: a) Settlement Agent: the person who makes available to participants in the accounts system and services for the settlement of transfer orders within a system and that may grant credit for this purpose to the same participants; b) central banks: the Central Bank of the Republic of San Marino, the European Central Bank and the national central banks of the EU Member States; c) Compensation: the conversion, according to the rules of the system, in one net claim or debt of claims or obligations of one or more participants in respect of one or more other participants resulting from transfer orders; d) Central Counterparty: subject interposed between the bodies of a system that acts as the exclusive counterparty of these institutions with regard to their transfer orders; e) Entity: one of the following subjects who participated in a system, assuming the obligations arising from transfer orders entered into the same system: 1) a bank of San Marino law governed in accordance with Law 165 of 17 November 2005 and subsequent amendments; 3 2) an investment and in any case any other private entity under San Marino law submitted to the Central Bank supervision, which, in accordance with and subject to the membership rules and operation of the system, participates directly or indirectly in the same, assuming ownership the rights and obligations arising from transfer orders; 3) The Central Bank of the Republic of San Marino governed by Law 96 of June 29, 2005, as amended; 4) any other entity of public law of San Marino, which, in accordance with and subject to the membership rules and operation of the system, participates directly or indirectly in the same, assuming the ownership of rights and obligations arising from transfer orders; 5) any other body of the foreign armies that similar activities to those of the bodies referred to in points and participating as a system, if its activity a bearing on systemic risk; f) Warranty: any law concerning or otherwise related to currencies or any kind of financial instrument, made up for the sole purpose of assuring performance of any present or future obligations arising from transfer orders or operations related to the functions of the Central Banks within a system; g) Banking Law: Law 165 of November 17, 2005, as amended; h) Order of Transfer any instruction arranged by a participant in a system, in order to: 1) make available to a beneficiary a certain amount of money by means of a book entry on the accounts of a participant, a central bank or a settlement agent or which results in the assumption or discharge of a payment obligation in accordance with the rules of the system; 2) transfer the ownership or any other right of one or more financial instruments, by means of a writing on a register or in any other manner; i) Participant means an institution, a settlement agent, a central counterparty, a clearing house, a guarantee scheme participants in a system, as well as a body falling under the categories mentioned in point 1) of paragraph e) of this Article, participating in the system by means of another participant, which performs in its own name, the first transfer orders within the system, under a specific contractual relationship; j) Insolvency proceedings: 1) the transfer of assets to creditors, the agreement and the rights of creditors governed by Law 17 of November 15, 1917 as subsequently modified; 2) any other procedures provided for under Part II, Title II, of Law 165 of 17 November 2005, as amended, or, more generally, by the legal system of the Republic of San Marino or the law of a foreign state, if applicable , when it produces the effect of the suspension or termination of the liability payments and restitution of assets to third parties, or at least the imposition of limits to the activity; k) Gross Regulation: Regulation of individual transfer orders within a system, on the basis and in accordance with the same rules and outside the compensation; l) system is represented by a set of contractual provisions or authority on the basis of which are run, with common rules and standardized arrangements, orders
transfer among participants who join or access the Payment and Settlement Systems of San Marino securities, payment and settlement systems Italian licenses covered by Legislative Decree 210 of 12 April 2001, implementing Directive 98/26 / EC of the European Parliament and of the Council of 19 May 1998, as well as payment and settlement systems in existing Community titles in the European Union; m) Clearing House: the center responsible for the calculation of net positions and the contact exchange between the participants at the system; n) Financial Instruments: all those instruments as defined in Annex 2 of Law 165 of 17 November 2005. 4 Art. 3 (Finality of transfer orders) 1. Transfer orders, compensation and the consequent payments and transfers, carried out in the manner of the gross settlement or net, including the regulation performed in the manner provided for all planned systems 'Annex a, by an entity participant in a system, are binding between the participant in the system. 2. In the event of opening of insolvency proceedings against a participant in a system, the transfer orders, the compensation and the consequent payments and transfers referred to in paragraph 1 shall be binding on third parties, including the bodies responsible for the proceedings, if the transfer orders were entered into the system at a time prior to the opening of insolvency proceedings. They are also binding on third parties, including the bodies responsible for the proceedings, the transfer orders, the compensation and the consequent payments and transfers referred to in paragraph 1 released later in the system at the time of opening of insolvency proceedings and executed the day the same opening, if the settlement agent, the central counterparty or the clearing house can prove that at the time when it was not aware of the opening of insolvency proceedings, nor should have been. 3. The moment of entry of the transfer order is established by the rules of the system in which the order of the same transfer is entered. The Central Bank of the Republic of San Marino establishes the moment when a transfer order is placed in San Marino systems. 4. The finality of the transfer order, the compensation and the consequent payments and transfers mentioned in paragraph 1 above, may not be affected by any action, be it even disability. 5. The rights and obligations of participants in the system, which arose before the opening of insolvency proceedings, may not be affected by the retroactive effects of the insolvency procedure. Art. 4 (opening of the insolvency proceedings) 1. For the purposes of this law shall be considered the moment of opening of insolvency proceedings in the Republic of San Marino: a) the day, hour and minute in which they produce the effects of the executive judicial decree of the competition opening according to the provisions of Law 17 of November 15, 1917, as amended; b) the day, hour and minute in which they produce the effects of the insolvency proceedings provided for in Part II, Title II of the law 17 November 2005 n.165; c) the date, hour and minute in which they produce the effects of any other insolvency proceedings in San Marino law, other than those referred to in paragraphs a) and b), that results in the suspension or termination payment of liabilities and restitution of assets to third parties or the imposition of limits to the activity; d) if an insolvency proceeding is opened in a foreign country, it is considered the moment of opening of the same one in which the San Marino systems are informed of the opening of the same insolvency proceedings. 2. The bodies insolvency proceedings, which is responsible to document in effect the activity carried out by the judicial and administrative, must certify, in the cases and manner provided by law, the date, time and minute of opening of the insolvency procedure. 5 3. The competent bodies involved in insolvency proceedings shall immediately notify in every respect, also through electronic means, to the Central Bank of the Republic of San Marino the opening of insolvency proceedings. 4. The Bank of the Republic of San Marino Central receives from the competent national authorities the notice of the opening of insolvency proceedings in the EU Member States against participants in the system. 5. The Central Bank of the Republic of San Marino will immediately and also electronically, to the competent national authorities of the EU Member States of the opening
of insolvency proceedings in San Marino against participants in the system. Art. 5 (Commencement irrevocability of transfer orders) 1. The transfer order is final when it is entered into the system after the moment of entry set out in paragraph 3 of Article 3 of this law. Art. 6 (Fulfilment of obligations towards the system) 1. Following the opening of insolvency proceedings against a participant, the settlement agent may be used in the name and on behalf of the first and for the purposes of 'fulfillment of the insolvent participant's obligations in connection with participation in the fate of the system before the opening of insolvency proceedings: a) funds and any kind of financial instrument available on the participant's settlement account; b) open credit lines in favor of the participant against collateral in place and intended to meet the same obligations towards the system. 2. The acts referred to in the preceding paragraph are subject to the provisions of Article 3. Art. 7 (Applicable law in the event of insolvency of a system participant) 1. In the case of insolvency proceedings opened against a participant in a system, the rights and obligations arising from such participation, or in connection with, are still subjected, under and for the purposes of this Act, the law governing the system. Art. 8 (Implementation of the guarantee in the insolvency proceedings) 1. In the case of insolvency proceedings opened against a participant on whose behalf another participant executes transfer orders, or a counterparty to central banks, the guarantees established before the moment of opening of insolvency proceedings relating to claims arising from operations defined in Article 3 or connected with the central bank functions, can be realized for the exclusive satisfaction of secured claims. 2. The realization of the guarantees, including those constituted as a pledge, is governed by the rules of the system, even in derogation from the rules governing the insolvency proceedings. 6 3. The creditor shall immediately notify the bodies involved in the insolvency proceedings the outcome of the transactions referred to in paras. 4. The amount exceeding the claim made to the outcome of the operations indicated in the preceding paragraphs shall be paid to the insolvency proceedings. The claim not satisfied outcome of the operations indicated in the preceding paragraphs can be invoked against the insolvency proceedings under the provisions ordinarily applicable to it. 5. No action, including that of disability, can affect the system towards the realization of the guarantee referred to in paragraph 1. Art. 9 (Applicable law to the rights on financial instruments in book form) 1. When the rights, which have to object or relate to financial instruments, evidenced by entries or notations in a register, account or management system or central securities depository, the procedures for transferring these rights, as well as the establishment and implementation of guarantees and other pledges thereon they are governed exclusively by the law of the State where it is located the account book, account or the management system or CSD in which the recordings or annotations directly in favor of the right holder are performed, with the exception of the reference to law of another State. Art. 10 (Designation of systems) 1. The systems specified in Annex A are considered San Marino systems in accordance with this law. 2. The Central Bank of the Republic of San Marino shall designate the systems for the execution of transfer orders, which are subject to the provisions of this Act, providing for updating and / or modification of the said Annex, through the adoption of a delegate decree. 3. The Central Bank of the Republic of San Marino shall be entitled, if requested, to provide the national competent authorities of EU member states San Marino systems designated under this article. Art. 11 (Information on participation in the system) 1. The Central Bank of the Republic of San Marino will dictate the manner in which: a) San Marino each system shall notify the Central Bank of the Republic of San Marino and its participants, ensuring the timely updating of such communication; b) each Sammarinese Authority shall notify the Central Bank of the systems in which it participates; c) anyone who has a legitimate interest may ask a participant on the information systems that it accesses and on the basic rules governing their operation. Art. 12
(Technical provisions) 1. The Central Bank of the Republic of San Marino may adopt technical measures aimed at facilitating the application of this law. 7 Art. 13 (Repeals) 1. E 'repealed any rule or provision contrary to this law. Art. 14 (Entry into force) 1. This law comes into force on the fifth day following that of its legal publication. Our Residence, this day of 23 March 2007/1706 THE CAPTAINS REGENT Antonio Carattoni - Roberto Giorgetti THE SECRETARY OF STATE FOR INTERNAL AFFAIRS Valeria Ciavatta