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Financial Institutions - GermanyAbout this Practice Area
Dr. Wolf H. von Bernuth, a partner in Hausfeld's Berlin office, specializes in national and international litigation and arbitration. His litigation experience includes banking, financial and capital markets disputes, model proceedings under KapMuG, corporate and post-M&A disputes, joint venture disputes, directors' and officers' liability as well as disputes arising from complex contracts, e.g. in the automotive and energy industries. He was an expert for the legal committee of the Germa...
Financial Institutions Definition
The financial services industry is a large and diverse sector.
On the one hand the sector comprises a multitude of different financial institutions, such us inter alia, credit institutions, investment banks, government-owned commercial and development banks, asset managers, investment funds, private equity and hedge funds, real estate investment funds, sovereign wealth funds, insurance companies, portfolio managers, broker-dealers, investment advisers as well as distribution companies. Furthermore, FinTechs are becoming more and more important.
On the other hand a great variety of services and products are provided by those financial services institutions, for instance deposit business, credit business, custody business, broking services, clearing and settlement, investment advice, trading facility services, placement business, factoring, financial leasing, portfolio management, insurance coverage, asset management. FinTechs are adding innovative financing and payment services, e.g. supply chain finance and blockchain techniques.
This heterogeneity results in financial institutions facing a wide range of strategic, operational and legal challenges. In particular, shifting regulatory environments and global economic uncertainties challenge the approaches of these institutions in their local markets and internationally. Therefore, the practice of a lawyer specialising in financial services law reflects this scope. In general, such a lawyer assists clients with structuring their business in the most efficient way, minimising regulatory burdens while complying with relevant regulations.
In particular, the lawyer assists with the drafting and implementation of new financial products, advices on the implementation of new technologies and realignment of business processes and procedures and gives advice on outsourcing of services. The practice also includes the representation of domestic and foreign clients alike in administrative proceedings, for instance with regard to license requirements or notification procedures. Non-German firms request for advice when entering the German market cross-border or through German branches and subsidiaries. Especially those firms with a registered office outside the European Union face specific market entry barriers.
Furthermore, a financial services lawyer is of assistance to financial institutions when it comes to marketing (be it public distribution or private placement) of any financial product as the lawyer is involved in the drafting and negotiation of the entire contractual documentation (e.g. distribution agreements) and in ensuring the compliance of any marketing and placement material. Any disputes arising b2b or b2c can be handled by special litigation experts.
Lastly, the financial services lawyer also advises on all transactional matters like M&A transactions, restructurings and insolvencies. By including specialists from other departments as corporate, commercial, employment and tax, the financial services lawyer has a deep pool of legal expertise at his disposal, in order to be perfectly equipped to advise on all transactional scenarios.
One of the most recent developments is the increased emergence of so-called FinTech companies. These companies use new technology and innovation to leverage available resources. Partly, they contend with the traditional institutions and intermediaries in the delivery of financial services and products. Partly, they cooperate with those traditional market participants by providing services to them to facilitate the traditional provision of financial services and products. Regardless whether there is competition or cooperation, FinTech operations rise new questions and issues to be solved with regard to many legal aspects, e.g. license requirements, reporting requirements, anti-money laundering, data protection, customer information in particular and customer protection in general.
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