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Companies Act 1989

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This is the original version (as it was originally enacted).

Market charges

173Market charges

(1)In this Part “market charge” means a charge, whether fixed or floating, granted—

(a)in favour of a recognised investment exchange, for the purpose of securing debts or liabilities arising in connection with the settlement of market contracts,

(b)in favour of a recognised clearing house, for the purpose of securing debts or liabilities arising in connection with their ensuring the performance of market contracts, or

(c)in favour of a person who agrees to make payments as a result of the transfer of specified securities made through the medium of a computer-based system established by the Bank of England and The Stock Exchange, for the purpose of securing debts or liabilities of the transferee arising in connection therewith.

(2)Where a charge is granted partly for purposes specified in subsection (1)(a), (b) or (c) and partly for other purposes, it is a “market charge” so far as it has effect for the specified purposes.

(3)In subsection (1)(c)—

  • “specified securities” means securities for the time being specified in the list in Schedule 1 to the [1982 c. 41.] Stock Transfer Act 1982, and includes any right to such securities; and

  • “transfer”, in relation to any such securities or right, means a transfer of the beneficial interest.

(4)The Secretary of State may by regulations make further provision as to the charges granted in favour of any such person as is mentioned in subsection (1)(a), (b) or (c) which are to be treated as “market charges” for the purposes of this Part; and the regulations may add to, amend or repeal the provisions of subsections (1) to (3) above.

(5)The regulations may provide that a charge shall or shall not be treated as a market charge if or to the extent that it secures obligations of a specified description, is a charge over property of a specified description or contains provisions of a specified description.

(6)Before making regulations under this section in relation to charges granted in favour of a person within subsection (1)(c), the Secretary of State shall consult the Treasury and the Bank of England.

174Modifications of the law of insolvency

(1)The general law of insolvency has effect in relation to market charges and action taken in enforcing them subject to the provisions of section 175.

(2)The Secretary of State may by regulations make further provision modifying the law of insolvency in relation to the matters mentioned in subsection (1).

(3)The regulations may add to, amend or repeal the provisions mentioned in subsection (1), and any other provision of this Part as it applies for the purposes of those provisions, or provide that those provisions have effect with such exceptions, additions or adaptations as are specified in the regulations.

(4)The regulations may make different provision for cases defined by reference to the nature of the charge, the nature of the property subject to it, the circumstances, nature or extent of the obligations secured by it or any other relevant factor.

(5)Before making regulations under this section in relation to charges granted in favour of a person within section 173(1)(c), the Secretary of State shall consult the Treasury and the Bank of England.

175Administration orders, &c

(1)The following provisions of the [1986 c. 45.] Insolvency Act 1986 (which relate to administration orders and administrators) do not apply in relation to a market charge—

(a)sections 10(1)(b) and 11(3)(c) (restriction on enforcement of security while petition for administration order pending or order in force), and

(b)section 15(1) and (2) (power of administrator to deal with charged property);

and section 11(2) of that Act (receiver to vacate office when so required by administrator) does not apply to a receiver appointed under a market charge.

(2)However, where a market charge falls to be enforced after an administration order has been made or a petition for an administration order has been presented, and there exists another charge over some or all of the same property ranking in priority to or pari passu with the market charge, the court may order that there shall be taken after enforcement of the market charge such steps as the court may direct for the purpose of ensuring that the chargee under the other charge is not prejudiced by the e forcement of the market charge.

(3)The following provisions of the Insolvency Act 1986 (which relate to the powers of receivers) do not apply in relation to a market charge—

(a)section 43 (power of administrative receiver to dispose of charged property), and

(b)section 61 (power of receiver in Scotland to dispose of an interest in property).

(4)Sections 127 and 284 of the [1986 c. 45.] Insolvency Act 1986 (avoidance of property dispositions effected after commencement of winding up or presentation of bankruptcy petition), and section 32(8) of the [1985 c. 66.] Bankruptcy (Scotland) Act 1985 (effect of dealing with debtor relating to estate vested in permanent trustee), do not apply to a disposition of property as a result of which the property becomes subject to a market charge or any transaction pursuant to which that disposition is made.

(5)However, if a person (other than the chargee under the market charge) who is party to a disposition mentioned in subsection (4) has notice at the time of the disposition that a petition has been presented for the winding up or bankruptcy or sequestration of the estate of the party making the disposition, the value of any profit to him arising from the disposition is recoverable from him by the relevant office-holder unless the court directs otherwise.

(6)Any sum recoverable by virtue of subsection (5) ranks for priority, in the event of the insolvency of the person from whom it is due, immediately before preferential or, in Scotland, preferred debts.

(7)In a case falling within both subsection (4) above (as a disposition of property as a result of which the property becomes subject to a market charge) and section 164(3) (as the provision of margin in relation to a market contract), section 164(4) applies with respect to the recovery of the amount or value of the margin and subsection (5) above does not apply.

176Power to make provision about certain other charges

(1)The Secretary of State may by regulations provide that the general law of insolvency has effect in relation to charges of such descriptions as may be specified in the regulations, and action taken in enforcing them, subject to such provisions as may be specified in the regulations.

(2)The regulations may specify any description of charge granted in favour of—

(a)a body approved under section 170 (certain overseas exchanges and clearing houses),

(b)a person included in the list maintained by the Bank of England for the purposes of section 171 (certain money market institutions),

(c)the Bank of England,

(d)an authorised person within the meaning of the [1986 c. 60.] Financial Services Act 1986, or

(e)an international securities self-regulating organisation within the meaning of that Act,

for the purpose of securing debts or liabilities arising in connection with or as a result of the settlement of contracts or the transfer of assets, rights or interests on a financial market.

(3)The regulations may specify any description of charge granted for that purpose in favour of any other person in connection with exchange facilities or clearing services provided by a recognised investment exchange or recognised clearing house or by any such body, person, authority or organisation as is mentioned in subsection (2).

(4)Where a charge is granted partly for the purpose specified in subsection (2) and partly for other purposes, the power conferred by this section is exercisable in relation to the charge so far as it has effect for that purpose.

(5)The regulations may—

(a)make the same or similar provision in relation to the charges to which they apply as is made by or under sections 174 and 175 in relation to market charges, or

(b)apply any of those provisions with such exceptions, additions or adaptations as are specified in the regulations.

(6)Before making regulations under this section relating to a description of charges defined by reference to their being granted—

(a)in favour of a person included in the list maintained by the Bank of England for the purposes of section 171, or in connection with exchange facilities or clearing services provided by a person included in that list, or

(b)in favour of the Bank of England, or in connection with settlement arrangements provided by the Bank,

the Secretary of State shall consult the Treasury and the Bank of England.

(7)Regulations under this section may provide that they apply or do not apply to a charge if or to the extent that it secures obligations of a specified description, is a charge over property of a specified description or contains provisions of a specified description.

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