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Administrative Law Definition
Advertising Law Definition
Appellate Practice Definition
Arbitration and Mediation
Arbitration and Mediation Definition
Asset Finance Law
Asset Finance Law Definition
Aviation Law Definition
Banking and Finance Law
Banking and Finance Law Definition
Banking and finance law addresses the organisation, operation, and regulatory compliance of banks, bank-holding companies, and other financial institutions. This includes the negotiation, documentation, and completion of the transactions they engage in as part of their core business.
Examples of typical banking and finance transactions include secured or unsecured lending transactions (such as asset finance, acquisition finance, and general corporate lending transactions); the issuance of debt instruments on the capital markets (including short- and medium-term note and bond issuances and securitisation transactions); the issuance of fixed or variable rate preference shares; unlisted derivative transactions (such as swaps and repurchase transactions); and securities lending.
In addition, banking and finance lawyers advise on the terms of financial products and services (such as bank deposits, electronic banking, payment products, cash sweeping services, custody services, and asset management services). In addition, banking and finance lawyers advise banks and other financial institutions on compliance with regulatory matters (such as requirements relating to capital structure and prudential investment limits, and the protection of customer personal information.
Lawyers who practise in this area in South Africa require specific knowledge or the laws:
- regulating the financial sector (such as the Banks Act, the JSE Debt Listing Requirements, the Financial Markets Act, the Long-term Insurance Act, and the Pension Funds Act)
- protecting consumers (such as the National Credit Act and the Consumer Protection Act)
- regulating companies, insolvency, and business rescue
- affecting the validity and enforcement of contractual and security rights
- affecting cross-border transactions
- imposing taxes
- imposing exchange control requirements
Lawyers may act for lenders, investors in debt instruments or preference shares, borrowers, issuers of debt instruments and preference shares, arrangers, underwriters, security providers, trustees, business rescue practitioners, or liquidators.
Depending on a client's requirements, the documents used for transactions are based on the bank's standard-form documents, the template documents suggested by the Loan Market Association, the master documents of the International Swaps and Derivatives Association, and the International Securities Lending Association or the law firm's preferred documentation.
Given the increasing importance of the "shadow banking sector", the banking and finance departments of corporate law firms in South Africa also typically include specialists who provide legal services to asset managers, collective investments schemes and the investment consultants to pension funds, insurers, and family offices.
Biotechnology Law Definition
Capital Markets Law
Capital Markets Law Definition
Competition / Antitrust Law
Competition / Antitrust Law Definition
For those doing business in South Africa and the rest of Africa, it’s vital to have a clear understanding of competition law’s far-reaching implications for local and foreign businesses. This is because competition law, which forms a critical part of the global business landscape, plays a fundamental role in influencing corporate and commercial strategy. Attorneys with a good grasp of not only competition law, but also of the environment in which businesses operate, are best suited to assist local and international clients.
South African competition law is regulated by the Competition Act 89 of 1998, as amended (“the Act”). The Act applies to all economic activity within, or having an effect within, South Africa and regulates, among others:
• horizontal practices (between competitors)
• vertical practices (between customers and suppliers)
• behavioural matters, including cartel behaviour and abuses of dominance
• mergers, acquisitions, and takeovers
• market inquiries
• exemptions and corporate leniency
The Act establishes three independent competition authorities: the Competition Commission, the Competition Tribunal, and the Competition Appeal Court (“CAC”). The Commission’s role is investigative and prosecutorial, while the Tribunal’s is adjudicative. The CAC considers appeals against, and reviews of, the Tribunal’s decisions. If unsuccessful before the CAC, private litigants may approach the Constitutional Court, provided they meet the jurisdictional requirements.
The Act allows private litigants to participate in complaint and merger proceedings before the competition authorities. However, litigants must pursue any actions for damages suffered as a result of anti-competitive conduct before the civil courts. While many litigants have participated in proceedings before the competition authorities, few have launched actions in the civil courts, and a precedent-setting case is awaited.
The Competition Amendment Act 1 of 2009 (“the Amendment Act”) was assented to by the President in August 2009, however, only some of its provisions are in force. Among these are the provisions introducing market inquiries in South Africa, which came into force in April 2013. Since then, inquiries into the health care, retail market, liquid petroleum gas, and banking markets have been launched.
In May 2016, further provisions of the Amendment Act came into force. The most significant of these was the introduction of personal criminal liability for directors or those with management authority who participate in any price fixing, market allocation, or collusive tendering. This liability extends to directors and managers who have knowledge of cartel activities, but who do nothing about it. Convictions may result in 10 years imprisonment and/or a maximum fine of ZAR500,000.
Constitutional Law Definition
Construction Law Definition
Corporate Governance & Compliance Practice
Corporate Governance & Compliance Practice Definition
Corporate Law Definition
Criminal Defense Definition
Debt & Equity
Debt & Equity Definition
Defamation Law Definition
These practice areas are open for nominations but are not yet included in our publications.
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