ASIFMA Securitisation in Asia 2018

Table of Contents
I.

EXECUTIVE SUMMARY (ASIFMA) ........................................................................................... 5

II.

WHAT IS SECURITISATION (CLIFFORD CHANCE)...................................................................... 6
1.
2.
3.
4.

BACK-TO-BASICS.............................................................................................................................. 6
THE OLD AXIOMS OF SECURITISATION AND THE GLOBAL FINANCIAL CRISIS................................................ 8
HOW SECURITISATION CAN BE USED TO BENEFIT THE ECONOMY AND STRENGTHEN THE FINANCIAL SYSTEM .. 9
RATINGS IN SECURITISATIONS .......................................................................................................... 12

III. STATE OF SECURITISATION IN CHINA (KING & WOOD MALLESONS)...................................... 16
OVERVIEW – SECURITISATION IN THE PRC ......................................................................................... 16
THE PRC REGULATORY LANDSCAPE .................................................................................................. 17
2.1. History overview................................................................................................................ 172.2. The CBIRC SPT structure .................................................................................................... 18
2.3. The CSRC ABSP structure ................................................................................................... 21
2.4. NAFMII ABN Structure ....................................................................................................... 23
2.5. Main differences ............................................................................................................... 26
2.6. China CMBS and Quasi-REITs ............................................................................................ 28
2.7. Cross-border structures ..................................................................................................... 33
3. RECENT MARKET TRENDS ............................................................................................................... 35
3.1. Asset types ........................................................................................................................ 35
3.2. Key structural features in recent PRC securitisations........................................................ 36
3.3. Rating ................................................................................................................................ 36
3.4. Recent deal list .................................................................................................................. 37
4. PARTICIPATION IN THE PRC SECURITISATION MARKET ......................................................................... 41
4.1. Offshore financial institutions ........................................................................................... 41
4.2. Offshore investors ............................................................................................................. 42
4.3. Bond Connect .................................................................................................................... 43
4.4. NPLs................................................................................................................................... 43
5. LEGAL ISSUES IN PRC SECURITISATIONS ............................................................................................. 46
5.1. Legal true sale ................................................................................................................... 46
5.2. Bankruptcy remoteness..................................................................................................... 48
5.3. Perfection requirements for a transfer of receivables ...................................................... 49
5.4. Transfer of security interest connected to a receivable .................................................... 50
5.5. Commingling risk............................................................................................................... 51
6. CONSIDERATIONS FOR FUTURE REFORM ............................................................................................ 51
6.1. Single securitisation framework........................................................................................ 52
6.2. Tax treatment ................................................................................................................... 52
6.3. Direct foreign investment.................................................................................................. 52
1.
2.

IV.

STATE OF SECURITISATION UK, US AND REST OF ASIA (ASIFMA AND MUFG) .................... 53

1.
2.

US AND EUROPE ........................................................................................................................... 53
REST OF ASIA ................................................................................................................................ 56
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2.1.
2.2.
2.3.
V.

South Korea ....................................................................................................................... 56
Singapore .......................................................................................................................... 61
India .................................................................................................................................. 63

INTERNATIONAL REGULATION AND DISCLOSURE (CLIFFORD CHANCE) ................................. 70
1.
2.
3.
4.

REGULATORY CONSIDERATIONS – EUROPE......................................................................................... 70
TERRITORIAL CONSIDERATIONS – US ................................................................................................ 71
DISCLOSURE REQUIREMENTS ........................................................................................................... 72
LIABILITY COMPARISON TABLE ......................................................................................................... 74

VI.

COVERED BONDS (FITCH RATINGS) .................................................................................. 75

WHAT IS A COVERED BOND? ........................................................................................................... 75
DEVELOPMENT OF ASIAN COVERED BONDS ....................................................................................... 75
2.1. Development Timeline of Covered Bonds in Asia .............................................................. 76
2.2. Other Countries and Challenges ........................................................................................ 78
2.3. Regulatory Recognition of Asia-Pacific (APAC) Covered Bonds ........................................ 79
3. STRUCTURAL FEATURES AND RISKS OF COVERED BONDS ...................................................................... 80
3.1. Covered Bond Structures and Frameworks ....................................................................... 80
3.2. Resolution and Risk of Bail-In ............................................................................................ 82
3.3. Cover Pool Asset Segregation ........................................................................................... 82
3.4. Cover Pool Asset Types ...................................................................................................... 83
3.5. Privileged Swaps ............................................................................................................... 84
3.6. Over-Collateralisation and Asset Valuation ...................................................................... 85
3.7. Demand Loan/Note Funding Excess OC ............................................................................ 85
3.8. Liquidity Protection Mitigating Mismatches ..................................................................... 86
3.9. Ongoing Supervision and Administration ......................................................................... 87
1.
2.

VII.

THE RATINGS FRAMEWORK FOR SECURITISATION (MOODY’S) ......................................... 88

1.
2.
3.
4.
5.
6.

LEGAL AND REGULATORY SITUATION INFLUENCES CREDIT RISK.............................................................. 88
UNDERLYING ASSETS ARE KEY DRIVERS OF CREDIT RISKS ...................................................................... 90
OPERATIONAL AND COUNTERPARTY RISK INFLUENCE CREDIT QUALITY ................................................... 90
STRUCTURE AND CREDIT ENHANCEMENT AFFECT RISK ......................................................................... 91
CURRENCY AND INTEREST RATE RISKS APPLY TO SECURITISATION TRANSACTIONS .................................... 92
POLITICAL AND ECONOMIC FACTORS MAY POSE CREDIT RISKS .............................................................. 92

VIII.

TAXATION ISSUES IN SECURITISATION (ERNST & YOUNG) ................................................ 94

1.
2.
3.
4.
5.
6.
7.

TAXATION OF SECURITISATION ARRANGEMENTS ................................................................................. 94
TAX POLICY OBJECTIVES (NEUTRALITY AND CERTAINTY) ....................................................................... 94
THE ORIGINATION OF THE SECURITISATION TRANSACTION .................................................................... 95
THE LIFE OF THE SECURITISATION TRANSACTION ................................................................................. 96
THE TERMINATION OF THE SECURITISATION TRANSACTION ................................................................... 97
CURRENT TAXATION OF SECURITISATION TRANSACTIONS – CHINA ......................................................... 97
CURRENT TAXATION OF SECURITISATION TRANSACTIONS – INDIA .......................................................... 98

IX. THE REGULATORY TOOLBOX (CLIFFORD CHANCE) ................................................................ 99
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1.
2.
3.
4.
X.

ENTITY FOCUSED REGULATION......................................................................................................... 99
SECURITISATION FOCUSED REGULATION .......................................................................................... 101
DEFINITIONAL ISSUES ................................................................................................................... 104
OVERLAP AND OVER-REGULATION ................................................................................................. 105
REGULATION IN ASIA (CLIFFORD CHANCE) ......................................................................... 106

1.
2.
3.

ECONOMIES IN ASIA ..................................................................................................................... 106
HOW CAN SECURITISATION HELP ................................................................................................... 106
TYPES OF SECURITISATION ............................................................................................................. 108

XI. THE CASE FOR BLOCKCHAIN IN SECURITISATION IN ASIA (MUFG)....................................... 110
1.
2.
3.
4.

WHAT IS BLOCKCHAIN? ................................................................................................................ 110
HOW CAN WE TAP ON BLOCKCHAIN IN SECURITISATION .................................................................... 111
NOTABLE INITIATIVES AND PROJECTS .............................................................................................. 114
PARTING MESSAGE ...................................................................................................................... 115

XII.

OUTLOOK AND CONCLUSIONS (ASIFMA) ....................................................................... 116

1.
2.
3.

CLOS RETAIN THEIR APPEAL ......................................................................................................... 116
OTHER ASSET CLASSES AND COVERED BONDS .................................................................................. 117
THE REGULATORY FRAMEWORK AND CONCLUSIONS .......................................................................... 117

XIII.

APPENDICES ................................................................................................................. 119

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I.

Executive Summary (ASIFMA)
As a tool to diversify and disperse risks, securitisation has played a vital role in developed markets
for an extended period of time – As the range of securitised products and markets have grown interms of variety and sophistication, a wider range of investors and market participants haverecognised the potential for securitisation to meet the twin objectives of a) enhanced return andb) portfolio diversification. Given the success that securitisation has enjoyed globally, the time hascome for the effective use of this tool across Asia – with one market in particular standing out forthe spectacular strides that it has made over the last few years – China.
That said, some of the Asian markets that have seen reasonable volumes of domestic
securitisations, in the years after 2008-09 include Korea, Singapore (especially with respect to thedevelopment of the covered bond market), India and as pointed out above, China. In fact, from anear standing start, China has over the last five years has become Asia’s largest securitisation
market, with South Korea a distant second. This is a promising development (and one topic that
this document focuses on) worth watching closely – the opening of China’s securitisation market
to international investors via the opening of the China Interbank Bond Market (CIBM) and therecently introduced “Bond Connect”, the adoption of global ratings standards and thediversification of Chinese issuers both by issuers and product type are all welcome developments.
Moreover, this would also assist in the internationalisation of the renminbi, a process that is welladvanced.
The organisation of this document follows a logical trajectory – Beginning with the origins andbroad description of what securitisation represents and the benefits it confers for issuers andinvestors alike (Chapter 2), the document then describes the state of securitisation in China andthe evolution of securitisation structures and the latest trends in that market (Chapter 3). The next
chapter (Chapter 4) covers developments in the US, Europe and the rest of Asia (South Korea,
Singapore and India) while Chapter 5 covers “International Regulation” and its impacts on
securitisation globally. Subsequently, Chapter 6 covers the rapidly developing field of coveredbonds in Asia while the next chapter (Chapter 7) looks at the ratings framework governing
securitisations. Chapter 8 covers taxation issues in securitisation across the region. Chapters 9 &10 take a deeper dive into regulatory issues covering a) the tools available to regulators and b) thestate of regulation in Asia. Chapter 11 touches on a topic of great current interest, the blockchain
and its applicability in the context of asset backed finance. concludes the document with a look at
the way forward for Asian securitisation. The final Chapter (Chapter 12) weaves together thethemes highlighted in the preceding chapters and aims to point to the way forward for
securitisation in Asia.
In summary, the goal of this document is to serve as a primer for the state of securitisation in Asiaand make the case for its continued development in the months and years ahead, with a particularfocus on what has already become the largest market for Asian securitisations – China.

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II.

What is Securitisation (Clifford Chance)
Securitisation is now a developed financing tool in Asia; the method of its adoption has varied
throughout the region, where some jurisdictions, such as China, Korea and Japan, have
implemented special legal regimes, while others, such as Hong Kong and Singapore, have made useof existing laws, with some special cases, such as the regulatory covered bond regime in Singapore.
Financial institutions and corporates equally make different uses of securitisation, with some using
it for funding, others for regulatory capital relief and others for balance sheet management.
It is clear, however, that the securitisation markets in Asia are not as deep as those found in the US
or Europe, though there is now significant increasing interest, on the one hand, among investors
in Asia looking at investing in US and European securitisations and, on the other hand, amongissuers in Asia putting in place securitisation structures which will appeal to US and European
investors.
Regulators in Asia are taking a balanced and thoughtful approach. In Hong Kong and Singapore,
for instance, the HKMA and MAS have been implementing the Basel securitisation framework, andin China, using a quota system to try our different types of securitised product before making themmore widely available.
The three biggest regional uses of securitisation technology are very much linked to the real
economy – mortgage loans (for instance, Singapore covered bonds), consumer credit (for instance,
the Korean and Chinese domestic securitisation markets) and trade (Asia has a strong history ofcross-border trade). This is an important point to note, as it shows both regulators and financial
institutions are supporting the socially useful features of securitisation, drawing capital from a
range of bank and capital markets sources and delivering that capital to help support citizens as
they use and draw on credit in their day-to-day lives.
This chapter outlines what securitisation is, its role in recent history, its benefits and some of thedifferent forms it takes.

1. Back-to-basics
Features"Securitisation", as a term, is used colloquially to refer to a wide and diverse range of financial
products. At its core, however, securitisation should be thought of as a set of techniques, or tools,
rather than a particular product. The presence of these techniques in a transaction or structure
are hallmarks that that transaction or structure is a securitisation. These techniques, or hallmarksof securitisation, are:•••a pooling of financial assets;isolating the credit risk of those financial assets from the credit risk of the entity to which
they are currently owed; andusing the cash flow from those financial assets to repay an investment.
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Capital markets investors, such as banks' treasury departments, insurance companies, pension
funds and a range of investment funds, are able to make use of these techniques to provide funding
for real economic activity by banks and corporates.
The following diagram illustrates a typical securitisation transaction.
isolated from Originator’s
insolvency

sale of financial assets

SPV

Originatorpayment of purchase pricepayment
obligationbondproceeds

bonds

entitlement topayment obligation

ObligorInvestors

Figure 1: A basic “true sale” securitisation structure
The Originator is a creditor to the Obligor, e.g., as a lender under a consumer loan, and is therefore
owed a payment obligation by the Obligor.
The Originator, as owner of the payment obligations, sells them to an SPV. The SPV is a standalone entity, created especially for the purposes of the securitisation.
The SPV pays the purchase price for the sale of the payment obligations to the Originator. The SPV
funds the payment of purchase price by issuing bonds to Investors.
Although the Obligors continue to make payment to the Originator, usually as servicer of thepayment obligations, the entitlement to the payment obligation has been transferred to the SPV
and is ring-fenced from the Originator's insolvency. If the Originator becomes insolvent, thepayment obligations will no longer form part of its insolvent estate.
The Originator will pass collections it receives to the SPV, which will use that cashflow to makepayments of interest and principal on the bonds.

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Securitisation structures
There are many ways in which securitisation techniques are employed in transactions and in theboxes over the next few pages you will note the differences between true sale securitisations,covered bonds, master trusts, whole-business securitisations and trade receivables securitisations.
Asset classes
A range of financial assets are regularly securitised and these include, among others:
•
•
•
•
•
•
•
•

residential mortgages;commercial mortgages;
auto-loans and leases;
consumer loans;credit cards;
trade receivables;
corporate loans (including SME loans); andproject finance loans.

Each asset class has its own peculiarities which result in, sometimes nuanced, differences in theway transaction involving them are structured. Due to differences in asset quality or legal systems(which can each also, in turn, drive differing requirements from rating agencies), some jurisdictions
often favour some asset classes over others.
2. The Old Axioms of Securitisation and the Global Financial Crisis
Prior to the global financial crisis arrangers, originators and investors alike, believed axiomaticallythat securitisation was beneficial to the economy for a number of reasons. Included among thesereasons was the thinking that securitisation, simply of itself, provided greater market liquidity andmarket completion – by slicing and dicing risk and allowing investors to choose what level of risk
they wanted, it created a more efficient, financially stable market. The credit creating effect of
securitisation was also widely considered beneficial on the basis that additional credit meant there
could be additional growth.
However, the global financial crisis turned these perceived principles on their head – the way the
US and European financial industry participants had been operating in the preceding years had
resulted in a build up, not a reduction, of risk and credit creation fuelled inflation. US and European
financial institutions had also become more interconnected which meant, when the crisis began,losses were quickly transmitted around most economies in the Western world.

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The role of securitisation in an economy, and the "shadow banking" sector where securitisation
techniques were frequently employed, was then brought into sharp focus. With hindsight, the way
securitisation had been used in some contexts – such as in SIVs, CDO2s, originate-to-distributebusiness models and capital arbitrage transactions – had contributed to the build-up of risk which,alongside the broader effects of "shadow banking", had led to a less stable financial system.
"SIV" – a structured investment vehicle. These vehicles typically issued short term commercial
paper to finance a pool of securities which it bought and sold. A SIV would make a spread byarbitraging the short-term nature of its funding with the longer-term nature of the securities itbought and sold.
"CDO2s" – a collateralised debt obligation squared. A collateralised debt obligation is a transaction
whereby a pool of securities are purchased by an SPV, financed by that SPV issuing its own
securities. A CDO2 is a CDO of a CDO – i.e., an SPV which purchases securities which have been
issued as part of a CDO.
"originate-to-distribute" – a business model employed by a number of investment banks and othermarket participants where mortgage loans, corporate loans or other financial assets wereoriginated solely for the purpose of securitising them. As the business originating the loans wastransferring all the risk in all the loans to a securitisation, there was little, or no, incentive for thatbusiness to engage in sound underwriting practices – the credit quality of the loans in the
securitisation might then be significantly less than a securitisation investor would expect.
"capital arbitrage" – entities subject to capital requirements rules might be able to engage in anarbitrage transaction, whereby the capital they need to hold against a particular asset might besignificantly less if held through a certain transaction structure compared to another whereas theunderlying risk in the asset would remain the same.
What became clearer though, was that securitisation was a tool, not something which had effects
in and of itself. If securitisation is used in a particular way, it can have very serious consequences
but when used in other ways, it can bring very significant benefits.
3. How Securitisation Can Be Used to Benefit the Economy and Strengthen the Financial System
Whatever benefits securitisation can bring, it is widely believed by regulators in both Europe andthe US, that securitisation should be regulated – boundaries are being drawn around the scope ofwhat securitisation can and cannot be used for. To achieve some of the benefits outlined in thissection, proper regulatory scrutiny would like to be needed – the possible regulatory options for
positive securitisation in China are explored further in Chapter X.
Reducing an overreliance on the banking system
One risk highlighted by the global financial crisis, particularly in Europe where bank assets were
three times European GDP, was an overreliance on the banking system as the provider of credit forPage 9 of 130

the economy. The "credit crunch" experienced in Europe resulted from the banking sector cutting
the amount of credit it provides in the wake of increased capital requirements and a general desire
to engage in less risky activity. As banks were the main provider of credit many companies became
unable to access the finance they needed.
Securitisation is a tool that can be used to deal with this problem in two ways. First, it can be usedby corporates who would otherwise be reliant on bank funding to securitise their assets and accessthe capital markets as a funding source directly (for instance, utility companies or corporates withlarge portfolios of trade receivables). Second, it can be used by banks to distribute their existingrisk to the capital markets thereby freeing up their balance sheets to undertake more lending
themselves. This latter use has two benefits – (i) spreading risk more widely around the financial
system (ensuring not too much is concentrated just in the banking sector) and (ii) facilitating theextension of further credit through an already existing banking system.
Additional non-bank credit provision
Having a wider proportion of credit provided by non-banks (by accessing the capital markets
through securitisation) can have a positive effect on financial stability. Non-banks are typically lessvulnerable to the risks inherent in the banking system – for instance (i) they are less reliant on
short-term funding sources (such as customer deposits or interbank lending), (ii) they have lesscomplex balance sheets and (iii) they are typically less leveraged than large banks as they would
not benefit from the "too-big-to-fail" subsidy. Moving more risks from banks to non-banks wouldmeans that a shock in the banking system would not necessarily involve issues among non-banks
resulting in credit continuing to be available through that channel despite issues in the banking
system.
Non-maturity transforming credit
Securitisation can offer credit in a way which is not maturity transforming – securities can be issued
with a tenor many years into the future. Banks tend to avoid such long commitments as they are
generally receiving their own funding on a short term basis. By enabling access to investors who
are willing to accept or desire longer tenors, the borrowing needs of people who and companies
which need long term credit can better be met.

Two key areas where securitisation can help in this manner are residential mortgage borrowing
and infrastructure borrowing – in both instances there is a desire for long term credit over many
years which can be met through securitisation.
An investment instrument
Securitisation can repackage illiquid assets into liquid securities. Some non-bank investors, such as
insurance companies and pension funds, are reluctant to grant loans directly on the basis there islimited liquidity if they wish to transfer that risk further down the line. By holding liquid securities,
rather than a loan, it means that position can be readily sold on, if the investor so chooses.
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Diversification of risk
Securitisation offers investors, both banks and non-banks alike, the opportunity to diversify theirportfolios, whether in terms of risk profile, geographical location or liquidity. Rather than simply
buying corporate bonds or shares, which depend on the risk of a corporate as a going concern, an
investment in a securitisation gives exposure to an underlying pool of assets – a different type ofrisk which can bring more diversity to, and therefore will reduce overall risk in, an investment
portfolio.
Tranching
The securitisation technique of tranching means that securities representing interests in the sameasset pool can be given different risk profiles. This is done through a legal technique called awaterfall or a priority or payments.
For instance, a pool of residential mortgages with a face value of 100 might be transferred to an
SPV and the SPV issues 100 of notes to fund that acquisition – 50 "A" notes, 30 "B" notes and 20"C" notes. The transaction documents will provide that as the residential mortgages are repaid by
the underlying borrowers, the cash collection are used first to redeem the A Notes, second toredeem the B notes and finally to redeem the C notes. The result of creating this priority is for the
C notes to take the "first loss" on the pool – i.e., any losses up to and including 20% would result in
the holders of the C notes losing out without the A noteholders or B noteholders taking any losses.
Losses in this pool between 20% and 50% would be borne by the B noteholders and the A
noteholders would begin to experience losses only in excess of 50% of the entire pool. The A notes
therefore have significantly less risk attached to them than the C notes, but will likely yield a muchsmaller margin to investors holding them.
Thereby through tranching a ready supply of high-quality low risk securities can consequently beprovided for investors through the use of securitisation, provided the underlying assets are, overall,of a sufficiently high credit.

Banking stability
Securitisation can also be used by banks to help reduce some of the risks inherent in banking
activity. This can be done by:•••better matching the bank's assets to its liabilities – by having funding provided to the bankwith the same tenor as it requires to lend;better risk management – by imposing reporting and information requirements on a bankreporting to its investors it is incentivised to continue to accurately monitor the risks of theassets it is funding;wider investor base – investors in securitisation are an alternative source of funding forbanks, aside from depositors, interbank lending and bonds, providing banks with a moreeven source of funds making them more resilient to shocks or reductions in credit in one
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•investor base; andcost of funding – by better matching an investors appetite to risk through tranching or thecredit quality of the underlying assets a bank can better price its securitisation funding
thereby resulting in cheaper funding for it than might be available through other secured
funding channels.

4. Ratings in Securitisations
Rating agencies are often engaged in securitisation transaction in order to provide investors witha view on the likelihood of the ultimate repayment or principal on a particular class of notes and/or
the expectation or timely payment of interest on a particular class of notes.
There are a number of factors which a rating agency will take into account when assigning a rating
to a particular transaction. These factors include the following and are explored in more detail in
Chapter VI:
•
•
•
•
•
•
•

the credit rating of the originator of the assets;
the historic performance of the assets originated by the originator;
the credit policies of the originator in extending credit to its customers;
the ease with which the servicing function might be replaced upon the insolvency of theservicer;
the jurisdictions in which underlying debtors are located;
the level of credit enhancement provided to the tranche being rated; andthe strength of any legal opinions provided as to the insolvency-proof nature of thetransaction.

The rating process is often fairly involved, with rating agencies undertaking due diligence visits tothe originator and requesting large amounts of data in order to provide a robust rating for thetransaction.

Page 12 of 130

Master
CoveredTrust
bond
Bank
(as Asset Trustee)declaration of trust

consideration

sale of mortgages(beneficial interest
In trust)

sale of mortgages(equitable assignment)Bank(as Originator)

consideration

Covered Bond
Guarantor

intercompany
loan

guarantee

swaps

Bank
(as Swap
Provider)repayment ofintercompany
loan

Bank
(as Issuer)coveredbonds
proceeds

coveredbonds

A master trust is effectively set up to permit regular programmatic issuance by an originator which
Covereda steady supply of financial assets – for instancean active residential mortgage originator or a credit
Bondholders
card company. A "platform" is established pursuant to which the originator continually transfers its
newly originated assets to a trustee (in the example below, a Receivables Trustee) which declares aThistypicalbond structure.
Under a funding
coveredvehicles
bond investors
trustdiagram
over theshows
assetsa for
the Singapore
benefit of covered
the originatorand intermediary(in thehave
recourse
to
both
the
bank
as
the
issuer
and
the
pool
of
assets
which
have
been
segregated.
In
example below, Funding). Each time the originator wishes to raise finance, the note issuing vehiclesomelegislation
providesthe legalbasis
for thewhich
segregatation(a so-called"statutory(in thejurisdictions
example below,
the issuer)
will issue
a seriesof notes
will be backed
by the assets
heldring-fence")
whereasinothers,such
astheSingapore,
an
SPV
needs
to
be
set-upforthepurpose.
by the Receivables Trustee.

Page 13 of 130

Whole-business securitisation

Whole-business securitisations are used to provide corporates, which have either steady or
regulated income streams, to raise finance in the capital markets – typical examples include ports,
airports, water companies and holiday parks. They are very commonly used to fund infrastructure
following its construction. A security net is placed over the revenue generating entities and assets
within the group (creating a ring-fence around those entities and assets) to isolate the cash flows
and all creditors (e.g., capital markets investors, swap providers, capex lenders, term facility
providers, working capital lenders) to that group agree on a common set of representations,covenants, events of default and intercreditor terms. In the example below, the SPV issuer is acreditor of the group which raises finance in the capital markets by issuing notes giving capital
markets investors exposure to the group.

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Trade receivables securitisations

Trade receivable securitisations can take a variety of forms but, at their core, they involve a tradereceivable owed by a buyer to a supplier being sold to a third party, such that the supplier receives apurchase price for that receivable and the third party becomes exposed to the credit risk of the buyer.
A typical structure would involved a single supplier selling receivables owed by its pool of customers.
Other structures can involve receivables owed by a single buyer to its various suppliers, or receivables
acquired by a factoring company or even receivables acquired or originated through on-line platforms.

Page 15 of 130

III.

State of securitisation in China (King & Wood Mallesons)

1. Overview – Securitisation in the PRC
China’s securitisation industry has experienced significant growth in recent years. In 2017, thevolume of domestic asset-backed securities (“ABS”) issuance grew 64.7% to approximately RMB
1.5 trillion 1 making China the world’s second largest securitisation market in 2017 for new issuancevolume. For the first six months of 2018, China’s securitisation issuance had 42% year-over-year
growth2. This represents a remarkable turnaround from the tentative stop-start approach to thedevelopment of the market for the best part of the past decade.
Securitisation was first introduced into the PRC through a pilot programme in 2005 and wassuspended in 2008 following the onset of the global financial crisis amidst concerns relating tosecuritised assets. The pilot programme in 2012 with an initial quota of RMB 50 billion which wasthen increased to RMB 500 billion by the PRC State Council on 13 May 2015. Since then, the market
has seen increased issuance volumes, growth in asset classes and structures and greater offshore
interest in onshore ABS.
In this article, we explore the regulatory landscape for ABS in China 3 and the recent developments
and latest trends in ABS-product offerings. Against this backdrop, we will summarise some of theopportunities available for originators, investors, intermediaries and other service providers andadvisors. We will look into how the PRC legal framework addresses the common legal issues
relating to ABS issuances. Finally, we highlight potential areas for reform to further develop the
PRC securitisation market – these proposals include a streamlined regulatory framework, access toa wider pool of investors and support for cross-border ABS issuances.

1

Pengyuan International report dated 17 January 2018 entitled “Asset-Backed Securitisation (ABS) in China:
Development and Risk”.

2 S&P Global Ratings report dated 24 July 2017 entitled “Global Securitisation On Pace For $1 Trillion In 2018”.
3

KWM acknowledges different approaches in the market when labelling the PRC ABS structures described inthis article.
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2. The PRC Regulatory Landscape
2.1.

History overview

The securitisation pilot program was initiated with two
groundbreaking deals - the collateral loan obligation("CLO") securitisation originated by the China
Development Bank and the residential mortgage
backed securitisation ("RMBS") originated by the
China Construction Bank.

The pilot program came to a halt in2009
becausetheregulatory
authorities were concerned about the
global financial crisis, particularly the
sub-prime bubble.

During the period from 2005 to 2008, 13 deals werelaunched with the total size up to RMB 50 billion, backed byvarious underlying credit assets, including CLOs, mortgage
backed securities ("MBS"), auto loans and non-performing
loans ("NPL"). GMAC - SAIC AFC originated the 1st auto loan
securitisation.

2008

2005

2009

Figure 5

The regulatory authority
reopened the securitisation
market. GMAC - SAIC AFC
originated its second auto
loan securitisation in 2012.

CBRC allowed foreignfundedbanks
tooriginateandsecuritisations
issuednewriskretention rules.

2012

2013

According to new regulatory rules in
2014, case by case approval fromthe then-China Banking Regulatory
Commission (“CBRC”) was no longer
required. After obtaining thesecuritisation business license, anoriginator only has to make a filing
with
the
CBRC
for
each
securitisation issuance.

2014

On 8 April 2018, the China
BankingandInsurance
Regulatory
Commission(“CBIRC”) was formed to be
the regulator for both thebankingandinsurance
sectors. CBIRC replaces CBRC
and the China Insurance
Regulatory Commission in aneffort to strengthen financial
supervision.

2018

Figure 6
Within the PRC, there are three broad securitisation frameworks in place, with each promulgatedby a different regulator and targeting a different group of originators. The three structures aredescribed in further detail below.
Page 17 of 130

2.2.

The CBIRC SPT structure

The better-known framework is the one promulgated by the CBIRC, which involves the
securitisation of “credit assets” originated by CBIRC-regulated financial institutions (for example,
commercial banks, financial leasing companies and auto-finance companies). This typically involves
the entrustment of certain credit assets to a special purpose trust, which will form the basis of thereceivable pool backing the issuance of ABS in the PRC National Interbank Bond Market (the“NIBM”). There is no clear definition of “credit assets”. In the PRC, “credit assets” usually refers tocredit facilities granted by financial institutions, including corporate loans, mortgage loans, autoloans, credit card receivables and lease receivables. Thus, ABS currently issued in the NIBM are allcollateral loan obligations (“CLOs”). For the purposes of this article, ABS issued under thisframework will be broadly referred to as CLOs under the “CBIRC SPT Structure”.
The NIBM is not open to retail investors. Rather, it is a closed market available to a group of
approximately 10,000 institutional members made up of mainly financial institutions such ascommercial banks, securities companies, insurance companies, and various kinds of investment
vehicles like mutual funds and pension funds. Among these, commercial banks are the most active
participants in the NIBM.
Under the CBIRC SPT Structure, an originator entrusts credit assets to the trustee of a special
purpose trust which issues CLOs in the form of multi-tranche trust certificates. The following PRC
regulations are relevant for these issues:
•
•
•

•
•

the Administrative Measures on Pilot Projects for Securitisation of Credit Assets Procedures,
jointly issued by the People’s Bank of China (the “PBOC”) and then-CBRC on 20 April 2005;
the Measures for the Supervision and Administration on Pilot Securitisation Projects of
Credit Assets of Financial Institutions, issued by then-CBRC on 7 November 2005;
the Notice on Relevant Matters Concerning Further Expanding the Pilot Securitisation ofCredit Assets, jointly issued by then-CBRC, the PBOC and the Ministry of Finance on 17 May
2012;
the Circular on Further Regulating Risk Retention by Originators in Credit Asset Securitisation
jointly issued by then-CBRC and the PBOC in December 2013; andthe Circular Concerning the Filing Process of Securitisation of Credit Assets, issued by thenCBRC on 20 November 2014.

Page 18 of 130

AccountBank

Servicer

Service Agreement

Obligor

Loans
Portfolios

CCDC*

Account Escrow Agreement

Trust
Company

Trust
SchemeOriginator
Loans
Junior Beneficiary
Certificates + Funds
Funds

RatingAgencyUnderwriting
Agreement
Funds

Underwriters

Investors
Senior Beneficiary

Credit Rating*CCDC refers to China Central Depository & Clearing Co., Ltd.

Figure 7

Originators

CBIRC-regulated financial institutions, including: (a) commercial andpolicy banks; (b) urban and rural credit unions; and (c) other financial
institutions which are regulated by the CBIRC such as auto financecompanies, asset management companies, finance lease companies
and finance companies.

Assets to be securitised“Credit assets” – this is not clearly defined but usually means credit
facilities granted by financial institutions, including corporate loans,mortgage loans, auto loans and lease receivables. The Pilot Noticeextended eligible financial assets to include agricultural industry
loans, credit card receivables and local government loans.

Regulatory approvals /registrations

PBOC and CBIRC. The CBIRC approval process was waived for 27
commercial banks in early 2015.

Originator skin-in-the-game
rules

The originator is required to retain no less than 5% of the total
exposure credit risks of underlying assets by way of “horizontal slice”
or “vertical slice”.

Page 19 of 130

The “horizontal slice” requires the originator to hold part of thejunior tranche with a total nominal value of no less than 5% of total
issuance size.
The “vertical slice” requires the originator to hold, in addition to atleast 5% of the junior tranche, a similar proportion of each seniorclass notes, such that the total risk retention by the Borrower is noless than 5% of the total issuance size;
All the notes invested by the originator for this risk retention
requirement should be held-to-maturity.
Trustee issuer

Must be a licensed PRC trust company.
Members of the NIBM – commercial banks, finance companies, trust
corporations, credit unions, mutual funds and securities companies.
The Pilot Notice enlarged the possible scope of institutional
investors and non-banking institutional investors to insurancecompanies, securities investment funds, enterprise annuities andnational social security funds.

Investors

Foreign investors including QFII, RQFII, foreign central banks andmonetary authorities, clearing banks for cross-border RMB
settlement in Hong Kong and Macau and overseas participatingbanks for RMB settlement of cross-border trade are allowed to tradein bonds (including ABS) in the NIBM after obtaining approval by the
PBOC.
Since 3 July 2017, overseas investors from Hong Kong and otherregions are allowed to trade in bonds (including ABS) in the NIBM
through the Northbound Trading of the Bond Connect, a new mutual
market access scheme that allows investors from the PRC andoverseas to trade in each other’s bond markets through the related
PRC and Hong Kong financial infrastructure institutions.

Single investor cap

40% for banking institutions.

Rating

All the tradable tranches other than the junior tranche must be rated
by at least two credit rating agencies. There is no minimum rating
requirement for those tranches.

Page 20 of 130

Table 1 - CBIRC SPT Structure – at a glance
2.3.

The CSRC ABSP structure

The second framework is the asset-backed specific programme framework promulgated by the
CSRC (the “CSRC ABSP Structure”). This framework is technically broad enough to cover credit
assets generated by all corporate entities (including CBIRC regulated financial institutions).
However, in practice, ABS issuances adopting the CSRC ABSP Structure have been limited toassets originated by non-financial institutions, such as independent leasing companies, toll
operators, e-commerce platforms and telecom service providers. ABS adopting the CSRC ABSP
Structure can be freely traded on the Shanghai Stock Exchange and the Shenzhen Stock Exchange.
The CSRC ABSP Structure involves an asset-backed specific programme (“ABSP”) establishedpursuant to the Administrative Provisions on the Asset Securitisation Business of Securities
Companies and Subsidiaries of Fund Management Companies (“ABSP Rules”) which were
published by the China Securities Regulatory Commission (“CSRC”) in 2014.
Under the CSRC ABSP Structure, a securities company or a subsidiary of a fund managementcompany, as an asset manager, will offer and launch an ABSP to investors who subscribe units ofdifferent tranches under such ABSP. The offer can be made by the securities company itself or byanother distribution agency (e.g. other securities companies, commercial banks and otherinstitutions approved by the CSRC). Upon the closing of offering, the ABSP (acting through thesecurities company as asset manager) will use the funds to purchase the underlying assets. The
cash flow generated from the underlying assets will fund the interest and principal payments.
The launch of the ABSP is subject to registration and filing with the Asset Management
Association of China. Upon the closing and subject to the further registration with the Shanghai
Stock Exchange and/or the Shenzhen Stock Exchange (as applicable), the units of the ABSP canbe traded on the relevant stock exchange market(s).

Page 21 of 130

Guarantee

Administrator

Liquidity Provider

Credit Enhancement

Liquidity Support

Senior Beneficiary
Certificates

Underlying
AssetsOriginator

Investors

ABSP
Funds

Junior Beneficiary
Certificates + Funds

Account Escrow
Agreement

Receivables

Receivables (P+I)

Account Bank

CSDCC

*CSDCC refers to China Securities Depository & Clearing Corporation Limited.

Figure 8

Originators

Theoretically covers all types of institutions. So far, all the market
precedents involve non-financial institutions.

Underlying assets

Receivables (including trade receivables), credit assets, trust
beneficiary rights, infrastructure toll rights and real estate.

Regulatory approvals /registration

Registration with the Asset Management Association of China

Originator skin-in-thegame rules

None

Trustee issuer

Not applicable

Investors

Qualified investors, including individuals, legalorganisations and other entities approved by the CSRC.

Single investor cap

Noentities,

Page 22 of 130

Rating

No mandatory requirements

Table 2 - CSRC ABSP Structure – at a glance
2.4.

NAFMII ABN Structure

The third framework is issuance of asset-backed notes (“ABN”) by non-financial enterprises in the
NIBM, which is promulgated by National Association of Financial Market Institutional Investors(“NAFMII”). The issuance of ABN is classified as issuing debt financing instruments (“Debt
Instruments”) by non-financial enterprises in the NIBM, which is regulated by the Measures of
the Administration of Debt Financing Instruments of Non-financial Enterprises on the Inter-bank
Bond Market promulgated by the PBOC on 9 April 2008 (“PBOC Measure”) and a series of selfregulation managing rules promulgates by the NAFMII (“NAFMII Rules”) (Main NAFMII Rules on
the Issuance and Trade of Debt Financing Instruments of Non-financial Enterprises in the NIBM).
Under the category of Debt Instruments issued by a non-financial enterprise, ABN is a type ofstructured fixed income instrument introduced to the PRC market in 2012 under the Guidance
for the Issue of Asset-Backed Notes by Non-Financial Enterprises in the Inter-bank Bond Market(“2012 Guidance”), promulgated by the NAFMII. On 12 December 2016, NAFMII further revised
and publicised the Guidelines on Asset-backed Notes of Non-financial Enterprises in the Inter-bank
Bond Market (Revised Draft) (“Revised Guidance”) and simultaneously formulated theRegistration Documents and Forms System for the Public Offerings of Asset-backed Notes by Nonfinancial Enterprises.
So far, the Revised Guidance has vitalised the ABN market and many non-financial enterprises
now use ABN as an alternative to the CSRC ABSP Structure. Further to the 2012 Guidance, theRevised Guidance regulates the types of assets, transaction structure, role of SPV, risk
management, information disclosure, rights and obligations of all participants and investor
protection mechanisms.

Page 23 of 130

Figure 9

Originators

Non-financial enterprises with the membership granted by the
NAFMII.

Underlying assets

Property rights as enterprise account receivables, lease receivables
and trust beneficial rights, as well as immovable property rights suchas the infrastructure and commercial property or other related
property rights.

Regulatory approvals /registration

For the first issuance, registration with the NAFMII is required. Onceapproved, the valid term of issuance is two (2) years, and the firstissuance should be completed within six (6) months from theregistration, and any subsequent issuance within the valid term isonly subject to filing with the NAFMII.

Originator skin in the
game

None

Trustee issuer

Must be a licensed PRC trust company.

Page 24 of 130

Onshore Investors:•

Commercial banks and other financial institutions•

Qualified investors other than financial institutions

Offshore Investors:
Investors

Single investor cap

Rating•Overseas central banks or currency authorities, RMB liquidation
banks in Hong Kong and Macao, and overseas banks joining
RMB settlement in cross-border trades•

Foreign central banks, international financial organisations, andsovereign wealth funds•

Qualified foreign institution investors (“QFII”) and RMB
qualified foreign institution investors (“RQFII”)

No
Public Offering – rated by qualified credit rating agency, withexception to the subordinated tranche.
Private Placement – no mandatory rating requirement.

Table 3 - NAFMII ABN Structure – at a glance

Page 25 of 130

2.5.

Main differences

The main differences of the three PRC securitisation frameworks are summarised below:
NAFMII ABN
Structure

CBIRC SPT Structure

CSRC ABSP Structure

Regulatory authority

NAFMIICBIRC and PBOC

CSRC

Originator

Non-financial
enterprises

Financial institutions Financial institutions
Non-financial
withqualifications andenterprises
granted by CBIRC

Scope of eligible
underlying assets

Property rights such asenterprise accounts
receivable,
lease
receivables and trust
beneficial rights, aswell as immovable
property rights such as
infrastructureandcommercial propertyorother
relatedproperty rights

Creditassets,including corporateloans, mortgage loans,
auto loans, leasereceivables
agricultural industry
loans, credit card
receivables and local
government loans

Property rights as wellas
immovable
property rights, andregulated by the
Negative
ListofEligible
Underlying
Assets promulgated
by
the
Asset
Management
Association of China

Issuing vehicle

SPT, SPC and others 4

SPT

ABSP and others

Trustee /administrator

4

Trust Company (SPT
Trust Company
Structure)

Securities Company /Subsidiary of FundManagement
Company (CSRC ABSP
Structure)

As mentioned above, a SPT is the most common issuing vehicle for ABN. The SPT structure is further
discussed further.
Page 26 of 130

NAFMII ABN
Structure

Investors

Rating requirement
for public offeringtransactions

5

CSRC ABSP Structure

Qualifiedinvestors Qualified
investors
recognised by the recognised by the Qualified investors 5
PBOC
PBOC


Regulatory approvals/ filings

CBIRC SPT StructureRegistration withNAFMIIFilingwith
NAFMII for anysubsequentissuance during
the valid issuance
periodRequiredFiling with the
CBIRC

Post-filing with theAsset Management
Approval
or
Association of China
registration with
the PBOC

Required (at least two
ratingagencies,
Requiredinvestor paid rating
agency is a must)

Qualified investors participating in the subscription for and transfer of ABS shall meet the following
conditions:(a)financial institutions established upon approval by the relevant financial regulatory authorities,
including banks, securities companies, fund management companies, trust companies and insurancecompanies;(b) financial products issued by the aforesaid financial institutions to investors, including but not limited
to bank financial products, trust products, insurance products, fund products and asset management
products of securities companies;(c)overseas financial institutions recognised by the relevant financial regulatory institutions and thefinancial products issued by them, including but not limited to qualified foreign institutional investors(QFII) and Renminbi qualified foreign institutional investors (RQFII);(d) pension funds such as social security funds and enterprise annuities, and social public welfare funds
such as charitable funds;(e)privately offered funds filed or registered with industrial self-regulatory organisations as well as
managers of privately offered funds meeting the provision of Paragraph 6 of the present article;(f)other entities with net assets not less than CNY10 million; and(g)other qualified investors meeting the relevant provisions of CSRC.
Page 27 of 130

NAFMII ABN
Structure

Secondary market

NIBM

Registration andclearing institution

ShanghaiHouse

Clearing

CBIRC SPT Structure

CSRC ABSP Structure

NIBM

ShanghaiStock
Exchange, Shenzhen
Stock
Exchange,
National
Equities
ExchangeandQuotations,Interagency
PrivateProduct
Quotationand Service System,
Over-the-Counter
Market for Securities
Companies and others

China
Central China
Securities
Depository & Clearing Depository
andCo., Ltd.
Clearing Co., Ltd.

Table 4
2.6.

China CMBS and Quasi-REITs

Commercial mortgage-backed securitisations (“CMBS”) and quasi-real estate investment trusts(“Quasi-REITs”) 6 have become one of the major financing instruments for PRC companies inpossession of commercial real estate including office buildings, hotels and shopping malls since2016. This section is dedicated to a brief introduction of PRC CMBS and Quasi-REITs, current
market practice and expectation of future development.

6

See section 1.3 for the differences between REITs and Quasi-REITs.
Page 28 of 130

2.6.1.

Overview of China CMBS & Quasi-REITs

CMBS structure

Figure 10
There are two ways to establish a trust, i.e. funds trust and property rights trust. Under the funds
trust structure, the settlor (acting as the originator) entrusts funds to a trust company for creationof a trust and obtains trust beneficiary rights. The trust grants a mortgage loan to the owner ofthe real estate (acting as the obligor). The obligor mortgages its commercial real estates andpledges the operation revenue arising from the commercial real estates to the trust. Under theproperty rights trust structure, the originator, who would have already extended a loan to the
obligor, entrusts its rights as the creditor of the loan to a trust company for creation of a trust.
The obligor mortgages its commercial real estates and pledges the operation revenue arisingfrom the commercial real estate directly to the trust.
After the ABSP is established, the ABSP purchases the trust beneficiary rights from the originator.
During the term to maturity of the ABS, the obligor transfers operation revenue to the trust
account to repay the loan under the supervision of the monitoring bank. After receipt of
repayment from the obligor, the trustee applies collections as interest and/or principal to the
ABSP. The ABSP administrator will then make distributions to the investors.

Page 29 of 130

Quasi-REITs structure

Figure 11
The transaction flow of the Quasi-REITs involves asset restructuring and the establishment of the
ABSP.
In the process of asset restructuring:A.

the original owner of the commercial real estate (“Original Owner”) establishes a whollyowned subsidiary as the obligor (“Obligor”) and transfers the ownership of the real estate
to the Obligor;B.

the originator establishes a wholly-owned subsidiary (“SPV”) and a private fund (“Private
Fund”) and obtains all the fund units without making the corresponding full capital
contribution;C.

the SPV acquires all the equities of the Obligor from the Original Owner; andD.

the Private Fund acquires all the equities of the SPV from the originator. Payment of theconsideration for the acquisitions in (C) and (D) are deferred.
Page 30 of 130

After the ABSP is established:A.

the ABSP purchases the fund units as underlying assets from the originator and completes
the capital contribution of the Private Fund;B.

the Private Fund grants a mortgage loan to the Obligor and pays the consideration for its
acquisition of the SPV; the Obligor mortgages its commercial real estate and pledges theoperation revenue from that real estate to the Private Fund;C.

the Obligor acquires all the equities of the SPV from the Private Fund;D.

during the term to maturity of the ABS, the Obligor transfers the operation revenue to thefund account to repay the loan and pay the dividends (if any) to the Private Fund as theshareholder under the supervision of the monitoring bank; andE.

the Private Fund applies the collections from the Obligor as interest and/or principal to the
ABSP. The ABSP administrator will then make distributions to the investors.

Credit enhancement
Credit enhancement applicable to the trust/private fund include:••••

real estate mortgage: the Obligor mortgages its real estate to the trust/private fund as
collateral for the loan;pledge of operation revenue: the Obligor pledges its operation revenue such as rent to thetrust/private fund as collateral and the main source of repayment;
guarantee: the guarantor assumes joint liability for the loan; andmonitoring bank: the Obligor is obliged to transfer all the operation revenue to themonitoring bank account to ensure repayment of the loan.

Credit enhancement applicable to the ABSP include:
•
•
•

•

subordination: the senior tranches of the ABS are created with superior claims on the cash
flows compared to the other tranches. The subordinated tranches absorb losses first;
excess spread: expected collections from the underlying receivables should exceed therequired payments to the investors as well as other fees and expenses;
maintenance fee: the payor (usually the originator) pays a fee to the ABSP to maintain its
right of first refusal with respect to the subordinated tranche of the ABS or the beneficiaryrights/fund units. The maintenance fee is structured for the purpose of supplementing theinterests of the senior tranches if the operation revenue is insufficient to satisfy required
payments; andput option and call option: a put option gives the investors the right to receive the principalof the ABS before maturity and a call option allows the ABSP (as the issuer) to redeem allof the outstanding ABS before maturity.

Page 31 of 130

2.6.2.

Current market practice

Asset types
Office buildings, hotels and shopping malls are the major assets in China’s CMBS and Quasi-REITs
market. Industrial real estate, including high-tech factories and warehouses, have backed these
deals since the second half of 2017 with the rapid development of the PRC e-commerce industry.
For instance, Suning, one of the first-tier household appliance suppliers in the PRC, issued a QuasiREIT with its warehouses recently. In addition, since the PRC government has issued a series ofpolicies encouraging house renting, long-term rental apartments have started to emerge as a new
asset type in CMBS and Quasi-REIT financings.
Location is also a significant factor. Real estate in mature neighbourhoods of first-tier cities andcore areas of second-tier cities tend to be preferred under current PRC practice.
Transaction arrangements
Affected by a series of policies recently issued by the CBIRC, the funds trust structure describedin section 2.6.1 above has become less feasible, while the property rights trust structure iscurrently a more viable alternative. First, cooperation between commercial banks and trust
companies to provide trust loans is prohibited by most CBIRC provincial offices. Furthermore,trust companies are not allowed to provide liquidity facilities to real estate companies. Hence thefunds trust structure is problematic where the originator is a commercial bank or there areinsufficient subscription proceeds.
In previous Quasi-REIT transactions, the private fund initially granted a loan to the obligor by wayof an entrusted loan of a commercial bank. However, a recent regulatory document regarding
entrusted loans issued by the CBIRC provides that collective investment schemes such as private
funds are not eligible to grant entrusted loans. Therefore, the private fund has to directly grant ashareholder loan to the obligor in Quasi-REIT transactions. However, this gives rise to anotherissue as private funds cannot be registered as a mortgagee in some areas.

Page 32 of 130

2.6.3.

Future development and expectations

The PRC Quasi-REIT is different from the common REIT in two major ways. First, a REIT is an equity
financing instrument while a Quasi-REIT still has the characteristics of debt financing. Second, a
REIT is a publicly offered product while a Quasi-REIT is a product offered on the stock exchange
market which can only be subscribed by qualified investors (the number of investors cannot
exceed 200 and the minimum subscription amount is 1 million RMB per investor).
Despite that local regulators tend to encourage the use of REITs, the issuance of a common REIT
product in the PRC may still be some time away. There are still some obstacles to be overcome
under the PRC legal and regulatory regime. For instance, ABS with the same credit rating held bya public fund shall not exceed 10% of the total issue and the total market value of the ABS heldby a public fund shall not exceed 20% of the net asset value of the fund. In addition, the current
tax regime is quite penal resulting in significant tax leakage.
2.7.

Cross-border structures

Cross-border quasi-securitisations involving PRC-based credit support first came back to themarket towards the end of 2013. These structures fall outside of the existing securitisation
framework in the PRC as they are made up of mostly offshore elements and involve therepackaging of secured offshore corporate loans owed by offshore subsidiaries of PRC corporates.
The only PRC connection is that these offshore loans are backed by onshore credit support in theform of a letter of credit or demand guarantee issued by an onshore branch of a major PRC bank.
The loans are then repackaged into rated notes which can be rated and listed on an international
stock exchange. Due to the onshore credit support given in connection with the loan, the notes
tend to have a rating equivalent to the credit rating of the onshore credit support provider.
This structure translates to lower all-in borrowing costs for offshore subsidiaries of PRC
corporates, and also allows financial institutions to offload such loans on their books to the debt
capital markets.
Another attractive feature of this structure is that no PRC licensing requirements apply to any
offshore financial institution arranging such a deal, given that most elements are offshore.
However, there may need to be an onshore filing with the National Development Reform
Commission (“NDRC”) depending on the tenor of the offshore funding.
Late 2016 and early 2017 saw a handful of cross-border repackagings of PRC local government
bonds which represented another important development to the PRC ABS market becoming truly
cross-border.
To date, King & Wood Mallesons has been involved in virtually all of such deals that have beensuccessfully launched in the market.

Page 33 of 130

Demand
Guarantor(onshore)

Noteholders

Borrower(offshore)

DemandGuarantee(through the
Loan Security
Agent)

Trustee

Facility
Agreement
Sale pursuant to Loan
Purchase Agreement

Initial Lender(offshore)

Security Trustee holds
security package on trust for
the Secured Parties including
the Noteholders

Notes
Security Package

Issuer

Security Trustee

USD sale proceeds
Transaction
Administration
Agreement

Transaction
Administrator

Agency Agreement

Note Agents

Figure 12

Arrangers

Usually financial institutions with existing PRC corporate clientele
wishing to raise funds offshore.

Underlying assets

Offshore corporate loan owing by an offshore subsidiary of a PRC
corporate, backed by onshore guarantee or letter of credit.

Regulatory approvals /registration

Depends on the structure. In most cases, no SAFE approval isrequired. NDRC filing may be required depending on the tenor of
the offshore funding.

Originator skin-in-thegame rules

Since cross-border repacks are not regulated by the CBIRC/PBOC,
no such requirements apply.

Trustee

Generally, a securitisation conduit established in an offshore tax
haven (e.g. Cayman Islands).

Investors

Since this is a cross-border issuance, subscribers are generally
offshore based investors.

Page 34 of 130

Single investor cap

NoRating

No mandatory requirements

Table 5 - Cross-border single loan repackaging – at a glance
3. Recent Market Trends
3.1.

Asset types

In 2017, corporate ABS accounted for 55% of the issuance volume in the PRC. The underlying
assets for corporate ABS are usually corporate debts and account receivables. During the same
period, 41% of issuance in the PRC were credit ABS. The major underlying assets for credit ABS
consisted of RMBS, auto loan ABS and CLOs.
Due to concerns over huge local government debt, the PRC government has in recent years
encouraged the adoption of public-private partnership (“PPP”), a collaborative investment model
between government and private companies in infrastructure projects. To attract more private
capital and speed up return to investors, the NDRC and CSRC issued a joint statement in
December 2016 encouraging PPPs to raise funds by issuing ABS products.
In February 2016, a pilot NPL securitisation programme was established in the PRC, which allowed
six large PRC banks to issue a maximum of RMB 50 billion worth of NPL ABS. The six PRC banks
were Agricultural Bank of China, Industrial and Commercial Bank of China, China Construction
Bank, Bank of China, Bank of Communications and China Merchants Bank. The RMB 301 million
worth of NPL ABS issued by Bank of China in May 2016 was the first NPL securitisation in the PRC
since 2008. A total of 14 NPL ABS were issued by the six banks in 2016, raising RMB 15.61 billion
in total. In 2017, the list of banks which can issue NPL-backed securities was expanded to include
China Minsheng Bank, China Everbright Bank, China CITIC Bank, Industrial Bank and Bank ofBeijing.

Page 35 of 130

3.2.

Key structural features in recent PRC securitisations

As mentioned above, we see an increasing number of domestic securitisation offerings with built
in western-style structures. These are in part driven by rating agency requirements and regulatory
developments.
Reserve account requirements
The latest structures have more stringent reserve requirements. For some of the new auto-loan
securitisations, we’ve seen multiple reserve accounts to cover liquidity, tax, appointment of backup servicers, and set-off risk. Reserve amount requirements invariably increase with the breachof each downgrade threshold.
Servicer downgrade mechanics
To address counterparty risk relating to the servicer of the receivables, most securitisations havevarying downgrade triggers. The servicing obligations of the servicer will become more onerous
following any downgrade of its credit rating (e.g. more frequent obligation to “sweep” allcollections from existing collection accounts to a segregated bank account of the trustee) leading
to an outright transfer of the underlying credit asset.
Clean-up call
Originators under PRC auto-loan receivables typically have a right to buyback all securitised
receivables if the receivable pool balance falls below 10% of the original pool balance that was
securitised. This is common feature for credit-card and auto-loan receivable securitisations in theregion.
Skin-in-the-game/risk retention
For securitisations using the CBIRC SPT Structure, it is a regulatory requirement for originators toretain an amount not less than 5% of the overall credit exposure, in the form of junior tranche
subscription (or otherwise combined with other senior tranche subscriptions).
3.3.

Rating

PRC securitisations using the CBIRC SPT Structure are required to be rated by 2 different rating
agencies – one appointed by the originator, and another independent rating agency. The qualified
rating agencies in the PRC market are set out below.
List of domestic rating agencies in the PRC•••

China Credit Rating Co., Ltd;
China Chengxin International Credit Rating Co. Ltd (in partnership with Moody's InvestorsService);
China Lianhe Credit Rating Co., Ltd
Page 36 of 130

•••Dagong Global Credit Rating Co., Ltd;
Golden Credit Rating International Co., Ltd; andShanghai Brilliance Credit Rating & Investors Service Co., Ltd (in partnership with S&P).

Rating considerations
PRC rating agencies generally use similar rating criteria as major international credit rating
agencies, such as Fitch, Moody’s, and Standard & Poor’s. The framework for analysing structure
finance transactions would cover:
•
•
•
•
•

the legality, validity and enforceability of the transaction structure;credit performance of the underlying assets (e.g. history, performance, eligibility criteria,
static/revolving pool);
tranching and over collateralisation;liquidity support, reserve accounts, priority of payments and expense cap; andcounterparty risk (e.g. right to set-off/withhold, commingling risk, backup service
providers, replacement triggers).

3.4.

Recent deal list

KWM worked on the following recent ABS issuances:•

HSBC Bank (China)o•Standard Chartered Bank (China)o••Zhongyin 2014 No.2 CLO ABS Note

Bank of Communicationso•

ZhenChen 2015 No.1 CLOA ABS Note

Bank of Chinao•

HuiYuan 2015 No.1 CLO ABS Note

Jiaoyin 2014 No.2 CLO ABS Note

China CITIC Banko

HuiYi 2015 No.1 CLO ABS NoteoXinyin 2015 No.1 CLO ABS Note

Bank of Beijingo

Jingyuan 2015 No.1 CLO ABS Note
Page 37 of 130

o
•

•

•

•

•

•

•

Jingyuan 2014 No.2 CLO ABS Note

Bank of NingbooYongsheng 2016 No.1 CLO ABS NoteoYongqi 2015 No.1 CLO ABS NoteoYongyin 2015 No.1 CLO ABS NoteoYongyin 2014 No.1 CLO ABS Note

Bank of QingdaooHaiyuan 2015 No.1 CLO ABS Noteo

Qingyin 2015 No.1 CLO ABS Note

Bocomm TrustoGuangzhou Shunde Bank 2016 No.1 RMBSoHangzhou Housing Fund 2016 No.1 RMBSo

Huzhou Housing Fund 2016 No.1 RMBS

Bank of BaotouoBaoshang 2015 No.1 CLO ABS NoteoBaoshang 2017 No.1 CLO ABS Note

GMAC-SAIC Auto Finance Company, Ltd.
o

Rongteng 2016 Serial Auto Loan ABS Note – revolving structureoRongteng 2015 Serial Auto Loan ABS Noteo

GMAC-SAIC 2014-1 AFC Auto Loan ABS Noteo

GMAC-SAIC 2012-1 AFC Auto Loan ABS Note

Volkswagen Finance (China) Co., Ltdo

Driver China Two 2015 No.1 Auto Loan ABS NoteoDriver China Three 2016 No.1 Auto Loan ABS Note

Dongfeng Nissan Auto Finance Company
Page 38 of 130•oNissan 2014 No.1 Auto Loan ABS Noteo

VINZ 2016 Serial Auto Loan ABS Note

Bocomm Leasingo•

Jiangsu Leasing
o

•

•

o

Huazu 2014 No.1 Lease Receivables ABS Noteo

Huazu 2016 No.1 Lease Receivables ABS Noteo

Huazu 2017 No.1 Lease Receivables ABS Note

CMB Leasing•

Micro Finance Lending ABS Note

FarEastern Leasingo

FarEastern 2016-4 Receivables ABS Noteo

FarEastern 2016-5 Receivables ABS Noteo

FarEastern 2017-4 Receivables ABS Note

JuXin Leasingo•

Jizu Wenjian 2017 No.1 Lease Receivables ABS Note

Ant Financialo•

Huazu 2017 No.1 Lease Receivables ABS Note

Hebei Leasingo•Suzu 2015 No.1 Lease Receivables ABS Note

Huarong Leasingo•

Jiaorong 2014 No.1 Lease Receivables ABS Note

Juxin No.1 ~5 Receivables ABS Note

Baoxin LeasingoBaoxin Leasing No.1, Receivables ABS NoteoBaoxin Leasing No. 2 Receivables ABS Note
Page 39 of 130

o•Fenghui Leasing
o

•

•

•

o

Boshi Capital - ShiMao Property Management Fee Receivables ABS NoteoChina Universal Capital – Shimao House Purchase Receivables ABS NoteoGreatWall – Shimao Factoring ABS Note

Rongchuang Real PropertyoBoshi Capital – Rongchuang Property Management Fee Receivables ABS NoteoGreatWall – Shimao House Purchase Receivables ABS Note

HopsenPingAn – Country Garden House Purchase Receivables ABS Note

Suning REITso•GreatWall – Hopesen House Purchase Receivables ABS Note

Country Gardeno•Shenwan- Poly Property Management Fee Receivables ABS Note

Shimao Real Propertyo•Shenwan - Changde Bus ABS Note

Poly Real Propertyo•Qinghui Leasing No.1, Receivables ABS Note

Changde Buso•Fenghui Leasing No.1~4 Receivables ABS Note

Qinghui Leasingo•Baoxin Leasing No. 4 Receivables ABS Note

Citic-Suning REITs

HNA GroupoHengtai-Haihang REITs

Page 40 of 130

••

Wanxin Meidao

CITICS-Wanxin REITso

Industrial Bank – Wanxin REITs

Forte Real Property
Shenwan-Forte Property Management Fee Receivables ABS Noteo

4. Participation in the PRC Securitisation Market
4.1.

Offshore financial institutions• Theoretically, yes. But the originator must be a CBIRC regulated
entity.

Originator• Limited to the onshore assets available to the originator.
Onshore credit assets held by foreign-invested financial
institutions only represent a fraction of the total credit assets
held by all PRC banks.
An underwriter must be a financial institution that meets thefollowing conditions:• registered capital shall not be less than RMB 200 million;

Underwriter• relatively strong capabilities in distributing bonds;• qualified professionals engaging in the bond market businessand bond distribution channels;• no material illegal activity and violations; and• other conditions as required by the PBOC.

Financial adviser

Yes. This is not a regulated activity requiring a specific licence.

Table 6 - Roles for an onshore subsidiary/JV of an offshore financial institution (CBIRC SPT
Structure)

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Originator

Generally no.

Underwriter / Distribution
Agent

Yes - commercial banks are qualified to be engaged in the
distribution during the offering of the ABSP.

Asset Manager

No – because so far only securities companies or subsidiaries offund management companies with an asset management businesslicence can be an asset manager.

Financial adviser

Yes. This is not a regulated activity requiring a specific licence.

Table 7 - Roles for an onshore subsidiary/JV of an offshore financial institution (CSRC ABSP
Structure)

Originator

Generally no.

Underwriter

Entities listed on the NAFMII List of Underwriters.

Financial adviser

Yes. This is not a regulated activity requiring a specific licence.

Table 8 - Roles for an onshore subsidiary/JV of an offshore financial institution (NAFMII ABN
Structure)
4.2.

Offshore investors

Based on current PRC rules and regulations, direct foreign investment into an onshore special
purpose trust (as a holding vehicle for securitised assets) is not permitted, except for certain
eligible investors described below. This is because regulatory approval is required for crossborder capital flows of this type and regulatory approval is generally not given for direct offshore
investment into an offshore trust.
On 14 July 2015, the PBOC promulgated the PBOC Circular on Certain Issues Concerning Foreign
Central Banks, International Financial Institutions and Sovereign Funds Making RMB Investment
into the NIBM (“Circular 2015”). Pursuant to Circular 2015, foreign central banks, international
financial institutions and sovereign funds are allowed, upon registration with the PBOC, to engage
in bond trading, bond repurchase, bond lending, bond futures, interest rate swaps and othertrades permitted by the PBOC, with approval or any quota restrictions.
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On 17 February 2016, the PBOC promulgated the Announcement of 2016 No. 3 which relaxed therules applicable to foreign institutional investor accessing the NIBM. An entity’s eligibility will be
determined by onshore settlement agents in accordance with a set of guidelines and suchonshore settlement agents will only be eligible to act as the settlement agents for entities whomthey determined to be eligible. The significance of the Announcement of 2016 No. 3 is the removalof prior approval and quota requirements for all eligible investors. Eligible investors are able totrade any products (including ABS products) available on the NIBM.
4.3.

Bond Connect

Bond Connect was launched on 3 July 2017 and is a mutual access scheme for offshore investors
to access the PRC bond market (“Northbound Trading”) and for onshore investors to access theHong Kong bond market through a market infrastructure linkage between the PRC and Hong
Kong.
According to the Bond Connect Interim Trading Rules, the China Foreign Exchange Trade System& National Interbank Funding Centre will determine the eligibility of offshore investors inaccordance with the criteria set out by the PBOC.
Offshore investors eligible to trade through Bond Connect include:A.

B.

institutional investors:• financial institutions such as commercial banks, insurance companies, securities
companies, fund management companies or asset management companies
incorporated outside of the PRC;
• medium and long-term institutional investors recognised by the PBOC including
senior funds, charity funds and donation funds;• QFIIs and RQFIIs; and• institutional investors based in Hong Kong, Macau and Taiwan; andcentral bank institutions:• foreign central banks;• international financial organisations; and• sovereign wealth funds.

Eligible offshore investors under Northbound Trading may conduct spot trading of all cash bonds
currently traded in the NIBM, including asset-backed securities. Based on the published rules,
eligible offshore investors have access to the primary and secondary bond market throughNorthbound Trading. According to the rules and regulations published to-date, there is no
investment quota limit for Northbound Trading.
In August 2017, just five weeks after Bond Connect was launched, Ford raised RMB 3.46 billion
from listing its auto loan ABS. It was the first time that offshore investors were able to tap into
the Chinese ABS market through Bond Connect.
4.4.

NPLs
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Market background
As China’s economy enters the “new normal” and undergoes significant transformations andreforms, Chinese companies – both private enterprises and state-owned enterprises – areexperiencing rising debt levels. As a result, both official statistics and unofficial estimates indicatethat the amount of NPLs held by Chinese banks are on the rise.
Chinese commercial banks classify loans into five risk-based categories: normal, special-mention,
substandard, doubtful and loss – the last 3 categories are referred to as NPLs. According tostatistics published by CBIRC, as of the first quarter of 2018, Chinese commercial banks held atotal of RMB 1.77 trillion NPLs (up from RMB 1.58 trillion as at the first quarter of 2017), and RMB
3.47 trillion of special-mention loans, which are one notch above NPLs. As part of its efforts tomaintain financial and economic stability, the Chinese government is encouraging Chinese banks
to effectively manage and dispose of their NPLs.
China’s NPL market continues to be dominated by the big four state-owned asset management
corporations (“AMC”), which were established by the Chinese government in 1999 to purchase
NPLs from the big four Chinese commercial banks.
Access channels for foreign investors
Foreign investors can purchase NPLs in bulk (defined as 3 or more loans at a time) from the AMCs
– generally through a competitive process. This is a well-established channel for foreign investors
to acquire NPLs and has been available since 2001. Over the years, the process for obtaining
Chinese regulatory approval in connection with an AMC’s transfer of NPLs to foreign investors
has become simplified and more streamlined.
Although purchasing NPLs from AMCs has been available for some time, foreign investors havenot generally been able to purchase NPLs directly from Chinese banks. However, as discussed
below, Chinese banks can now sell NPLs on a non-bulk basis to foreign investors pursuant to the
NPL Pilot Program.
Other channels for foreign investors to access China’s NPL market are also emerging. For
example, certain qualifying foreign institutional investors can purchase NPL asset-backed
securities in China’s bond markets.
NPL Pilot Program
The NPL Pilot Program was established in June 2017 pursuant to SAFE’s Notice regarding theEstablishment of a Pilot Program by SAFE’s Shenzhen Branch for the Cross-border Transfer of
NPLs (HuiFu (2017) No. 24). As part of the NPL Pilot Program, SAFE headquarters authorised
SAFE’s Shenzhen office to approve, on a case-by-case basis, transfers of NPLs by AMCs andChinese banks (regardless of whether they are located in Shenzhen) to foreign investors on theShenzhen Qianhai Financial Assets Exchange (“QEX”). Under the NPL Pilot Program, Chinesebanks located in Shenzhen do not have to go through the QEX and can directly sell NPLs to foreign
investors.
Page 44 of 130

Recent enhancements to the NPL Pilot Program – which include removing the program’s oneyear time limit and streamlining the related SAFE filing process – are designed to make it evenmore efficient for foreign investors to participate in China’s NPL market.
These enhancements are part of China’s efforts to address Chinese banks’ NPL levels, enhanceoverall financial stability and promote financial market reforms and innovation in the Greater Bay
Area, which includes Shenzhen. However, the existing rule regarding bulk transfers still applies,
which means only AMCs are allowed to sell NPLs in bulk to foreign investors.
The QEX operates one of China’s largest NPL trading platforms and has facilitated a large numberof cross-border NPL transfers.
Guangdong Bureau of State Administration of Foreign Exchange has also recently set up a pilot
cross-border NPL program to allow banks, financial institutions and individuals to transfer NPLs
through the Guangdong Finance Assets Exchange Center.
Benefits of the NPL Pilot Program for foreign investors
One of the key issues that foreign investors of Chinese NPLs have to consider is the process andtimeline for transferring NPL recoveries and proceeds from China to offshore. SAFE is the Chinese
government agency directly responsible for administering China’s foreign exchange system. The
NPL Pilot Program is itself established by SAFE. These factors should provide greater certainty
and efficiencies for foreign investors that purchase NPLs pursuant to the NPL Pilot Program andthat wish to transfer their lawfully obtained NPL recoveries and proceeds offshore.
Under the original NPL Pilot Program, a foreign investor’s purchase of NPLs (either directly from
Shenzhen banks or through the QEX) was subject to case-by-case pre-approval by SAFE’s
Shenzhen office.
A Shenzhen bank that directly sells NPLs on a non-bulk basis to a foreign investor pursuant to the
NPL Pilot Program can also apply directly to SAFE’s Shenzhen office for approval. Alternatively,
the Shenzhen bank can list its NPLs on the QEX, in which case the QEX will prepare and submit
the foreign exchange application to SAFE’s Shenzhen office. The QEX will also prepare and submit
foreign exchange applications for transactions made by non-Shenzhen banks and AMCs that list
their NPLs on the QEX.
Another benefit of conducting NPL transactions on the QEX is that the QEX’s “Cross-Border
Connect” (跨境通) platform provides centralised, online, one-stop-shop services to foreign
investors, which can reduce transaction costs and save time. In addition to displaying information
about the listed NPLs and preparing and submitting the foreign exchange application to SAFE’s
Shenzhen office, we understand that the QEX can also provide assistance and support services inconnection with:••execution of the NPL transfer agreement (including notarisation and witnessing services);transaction settlement;
Page 45 of 130

••arrangements required to make and receive ongoing cross-border payments inconnection with NPLs; andwithholding and paying PRC taxes on behalf of foreign investors in connection with the
NPLs.

Further benefits under the enhanced NPL Pilot Program
The foreign exchange-related benefits and efficiencies associated with the original NPL Pilot
Program are expected to be further enhanced under the enhanced pilot program. The original
NPL Pilot Program had an initial term of one year which was due to expire at the end of May 2018.
The enhanced pilot program no longer has an expiration date. This should help alleviate concerns
by foreign investors regarding how ongoing cross-border transfers of NPL recoveries andproceeds would be facilitated when the original program expires.
In addition, under the enhanced pilot program, “pre-approval” of cross-border NPL transfers by
SAFE’s Shenzhen Office has been replaced with a “pre-filing” process, which is expected to be amore streamlined process that involves less paperwork.
According to SAFE Shenzhen Branch’s announcement, these enhancements to the NPL Pilot
Program are designed to make it easier for Chinese financial institutions to dispose of their NPLs,
reduce Chinese banks’ credit risks, enhance the efficiency of China’s financial markets andimprove the ability of the financial services sector to serve the real economy.
The QEX’s website includes information about the NPLs that are currently listed on the QEX.
Foreign investors that are interested in the NPL Pilot Program or China’s NPL market can also
contact a member of KWM’s cross-border NPL team for further information.
Cross-border NPL securitisations
Given these rapid developments, we believe there will be opportunities for cross-border ABS
backed by NPLs acquired through the NLP Pilot Program to be issued in the near future. We are
currently working with market participants to explore such deals.
5. Legal Issues in PRC Securitisations
5.1.

Legal true saleA securitisation transaction involves a true sale of the assets from an originator to a purchaser(usually a special purpose vehicle or a trust). Different requirements apply for legal true sale(which feeds into the insolvency claw-back analysis) and accounting true sale (which feeds into
the off-balance sheet treatment analysis). The analysis here is limited to achieving a legal truesale.
The legal true sale analysis is different for the securitisations using the CBIRC SPT
Structure/NAFMII ABN Structure and the CSRC ABSP Structure. As explained below, the CBIRC

Page 46 of 130

SPT Structure and the NAFMII ABN Structure would provide a much more robust true sale
analysis.

Page 47 of 130

True sale analysis for the CBIRC SPT Structure and the NAFMII ABN Structure
Under the CBIRC SPT Structure and the NAFMII ABN Structure, the credit assets initially ownedby the originator are entrusted to a trustee (usually a regulated professional trust company)
pursuant to a SPT. Under PRC law, after the underlying assets are entrusted to a trustee pursuant
to payment of a purchase price, the rights of the trustee as transferee in good faith will generally
remain unaffected by subsequent insolvency proceedings involving the originator.
There are some key exceptions to this general principle under PRC insolvency law and trust law:
A.

•
•
•
•
•
B.

under article 31 of the PRC Bankruptcy Law, the bankruptcy administrator has the right torescind any transactions relating to an originator’s assets occurring within 1 year of
acceptance of a bankruptcy petition relating to that originator, if such transaction falls
within the following categories:a transfer without consideration;a transfer at an obviously unreasonable price;a guarantee of unsecured debts;
a payment of debts which are not due; andthe abandonment of a claim; andunder article 15 of the PRC Trust Law, if an originator is the only beneficiary under a trust,then the entrusted assets will form part of the originator’s bankruptcy estate, even if theoriginator became bankrupt after the entrustment of the aforementioned assets.

While there has been no legal precedent in the PRC market of an originator under a securitisation
becoming insolvent, the general consensus in the PRC securitisation industry is that the existing
trust framework is sufficiently robust to confer upon a trustee good title to any entrusted assets
even after the insolvency of the originator.
True sale analysis for the CSRC ABSP Structure
The ABSP in comparison envisages a contractual transfer of credit assets from an originator into
an ABSP. The ABSP is not a separate legal entity from the originator and such transfer is merely
contractual (as opposed to being an entrustment).
Accordingly, investors in securitisations under the CSRC ABSP Structure are unlikely to receive aclean true sale legal opinion usually expected in traditional securitisations.
5.2.

Bankruptcy remotenessTraditional securitisation structures contemplate the transfer of assets to either (a) a bankruptcyremote securitisation SPV; or (b) a trust. As there is no specific PRC legal framework for theestablishment of a securitisation SPV, the use of a trust is the preferred approach. The CBIRC SPT
Structure and the NAFMII ABN Structure specifically contemplates this trust approach.
CBIRC SPT Structure & NAFMII ABN Structure – Insolvency of Trustee

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While a SPT created under the CBIRC SPT Structure or NAFMII ABN Structure is not, by itself, aseparate legal entity, trust assets are generally held and managed by a trustee on behalf of the
SPT, so the impact of the insolvency of this trustee is an important consideration as well.
In this regard, article 15 of the PRC Trust law provides confirms that where a trustee (in its
personal capacity) becomes insolvent, the trust assets held by it will not form part of the trustee’s
insolvent estate.
CSRC ABSP Structure
The analysis is much weaker for the CSRC ABSP Structure. As mentioned above, the ABSP is not a
separate legal entity, but rather, a separate asset management plan established by the originator.
5.3.

Perfection requirements for a transfer of receivables

Under PRC law, there is a distinction between (i) the perfection of a sale of receivables as between
the seller (i.e. the originator) and the purchaser (i.e. the trustee under a SPT); and (ii) the
perfection of a sale of receivables as between the purchaser and the underlying obligor. Generally
speaking, for (i) above, there are no specific perfection requirements prescribed by law, and for(ii) above, notice to the underlying obligor is required pursuant to PRC contract law. Failure toperfect the assignment under (ii) above will not affect the validity of a transfer of receivables
under (i) above.
Transfer from Originator to a special purpose trust
For securitisations using the CBIRC SPT Structure or the NAFMII ABN Structure, the execution of
the trust agreement documenting the transfer of the credit assets from the originator to the SPT
is generally sufficient to ensure that such transferred credit assets will be beyond the reach of
the originator’s other creditors.
There is no precedent of an originator trying to sell the same pool of receivables to two different
persons. If this happens, the general view is that priority will be determined by the time of
execution of the trust agreement (i.e. the first in time prevails).
Perfection as against the underlying obligor
In relation to a transfer of receivables, article 80 of PRC Contract Law requires notice to be given
to the underlying obligor for such transferred receivables. If such notice is not given, the transfer
will not be effective as against the underlying obligor – from a practical perspective, this simply
means that the buyer of such receivables will not be able to sue the underlying obligor directly torecover amounts owed without first notifying the underlying obligor of such transfer.
For the avoidance of doubt, failure to give notice will not invalidate the transfer of receivables as
between the seller and the purchaser of such receivables – and there is judicial precedence
confirming this point.

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Perfection as against the underlying obligor – current market practice
The common market practice for PRC securitisations is that notice to the underlying obligor is not
given until the occurrence of certain trigger events, such as a downgrade or insolvency of theoriginator or servicer. Prior to the occurrence of such trigger event, the originator of thereceivables will also be the servicer of the receivables (i.e. responsible for collections under thereceivables, with a duty to transfer such receivables to the purchaser at regular intervals).
This tracks the general market practice for most securitisation deals in the region (Australia,
Korea, Hong Kong, Singapore), where notice to the underlying obligor is given upon theoccurrence of certain “perfection events”.
5.4.

Transfer of security interest connected to a receivable

In most securitisation transactions involving the sale of receivables which are secured byunderlying assets (e.g. auto loans, residential mortgage loans), the nature of such underlying
assets will determine the additional perfection formalities, if any, that is required to transfer the
security interest.
Auto-loan receivables
In relation to a securitisation of auto-loan receivables, PRC Property Law provides that theunderlying vehicle mortgages are transferred together with the sale of the auto-loan receivables.
However, for the transferred mortgages to be effective against bona fide third parties, they need
to be further registered as a first-ranking mortgage by the originator with the relevant vehicle
management bureau. The specific registration requirements differ based on the applicableprovincial or city-level regulations.
Based on existing market practice, most PRC auto-loan securitisations do not involve theregistering of new first-ranking mortgages in relation to the securitised auto-loan receivables dueto the operational burden of such registration process. Instead, investors rely on overcollateralisation and mandatory repurchase undertakings from the originator for protection.

Page 50 of 130

Residential mortgage loans
In contrast, for residential mortgage loans, the transfer of an existing property mortgage cannot
be automatically transferred with the sale of the relevant residential-mortgage loan; the existing
property mortgage will need to be re-registered in favour of the purchaser of the loan receivable.
In this regard, the market practice in the PRC securitisation market is not to require any such reregistration on the date of the asset transfer. Rather, re-registration is only necessary upon theoccurrence of certain trigger events, such as a downgrade in the credit rating of the originator.
5.5.

Commingling risk

In securitisation deals, it is common for the originator to double up as the servicer in relation to
the securitised receivables. Often such collections will be commingled with collections from otherreceivables in the originator’s own collection account. Under PRC law, in the event of theoriginator’s insolvency, such commingled amounts will form part of the originator’s bankruptcy
estate.
It is not always practical for an originator to establish segregated collection accounts forsecuritised receivables. This is because such an arrangement will involve the originator
implementing new payment arrangements, and notifying the underlying obligors of the same,
which can be an operational hassle. Based on existing market practice, commingling risk is
mitigated by the following operational arrangements:A.

B.

the originator making arranging for periodic transfers of collections from the originator’s
own collection account to the purchaser’s (i.e. the trustee’s) account. The time period
between such periodic transfers will be shortened if the credit rating of the originator falls
below a certain threshold; andan additional requirement for the originator to send notify each underlying obligor to pay
directly to the purchaser if the originator’s credit rating falls even further, or if theoriginator becomes insolvent.

6. Considerations for Future Reform
Despite the explosive growth of ABS issuances in the PRC, perhaps it is noteworthy that existinglaws only permit a limited class of investors to subscribe for ABS issuances adopting the CBIRCSPT structure. This closed group mainly consists of domestic banks, insurance companies,
securities companies and mutual funds.
To the extent that credit assets originated by a commercial bank are repackaged into ABS sold toother commercial banks on the NIBM, there is no true transfer of risk. Rather, the situation seems
to be more akin to an exchange of risk within the banking industry, with no real offloading of risk
to the capital markets.
The most common proposals for future reform of the PRC securitisation industry are summarised
below.
Page 51 of 130

6.1.

Single securitisation framework

There have been calls for a streamlined securitisation framework for all companies, thus
removing the SPT/ABSP distinction. This would bring uniformity in addressing common legal risks(e.g. commingling, true sale, transfer of security) across all securitisation offerings within the PRC.
6.2.

Tax treatment

On 30 August 2018, the State Council announced a 3-year exemption of withholding and valueadded-tax on interest derived by foreign institutional investors from onshore bonds. This is amajor development to facilitate more international investment into the PRC bond market as suchtax leakage has been an impediment to the PRC securitisation market becoming truly crossborder. We hope that this measure will be implemented on a more permanent basis in the future
6.3.

Direct foreign investment

Existing regulations do not permit direct foreign investment into an onshore trust holding
securitised assets. Also, existing routes for foreign investors to access domestic ABS issuances are
restrictive.
To facilitate cross-border foreign investments into an onshore trust holding securitised assets, itwill be up to PBOC to promulgate specific regulations allowing this (existing regulations do not
permit this), subject to some basic requirements that the investment is made in RMB and theinvestment scope and plan of the trust is mainly focused on asset securitisation. By denominating
investments in RMB, this would not attract the additional regulatory oversight on SAFE andprovide a more direct and attractive route for direct foreign investment in domestic ABS
issuances.

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IV.

State of Securitisation UK, US and Rest of Asia (ASIFMA and MUFG)

1. US and Europe
Regulatory Perspective
The United States and Europe have seen numerous regulatory developments enacted or proposedover the past few years in response to the financial crisis. These developments had and continue
to have a significant impact on the regulatory treatment of securitisation transactions.
US
In the United States, the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd
Frank Act"), from July 21, 2010 has been the major regulatory reform impacting securitisationtransactions but continues, till today, to require substantial ongoing rule-making in order toimplement its specific provisions. The aim of the Dodd-Frank Act was to define broad goals but
then delegate specific regulatory reform to the various United States financial regulatory agencies.
As a practical matter, post the global financial crisis (GFC), a mix of better risk disclosures, greaterrisk retention on balance sheets and simpler securitisation structures are all features of the current
securitisation & structured finance landscape. While at one level, the application of higher capitalcharges, more stringent credit quality assessment of underlying securitisation pools and the nonviability of certain types of securitisation structures post the GFC, has adversely impacted
securitisation volumes, this has been more than offset by the fact that investors’ reach for yield ina low interest rate environment has resulted in ABS/securitisation gaining at the expense of plain
vanilla bonds & loans.
EUROPE
There were many new regulations in Europe over the recent years, which impacted deeply themarkets, including securitisations (especially ABS). The Basel II and III Accords, various capitalrequirements including the latest Capital Requirements Directive and Capital Requirements
Regulation (together the "CRD"), the Credit Agency Regulation (the "CRA Regulation"), theAlternative Investment Fund Managers Directive (the "AIFMD") and the Solvency II Directive aresome of those regulations. However, this patchwork of legislation is set to change as part of the
EU’s Capital Markets Union (CMU) agenda.
Two Regulations, which came into force on January 17, 2018, will apply, going forward:•

Regulation (EU) 2017/2402 of the European Parliament and Council, laying down a generalframework for securitisation and creating a specific framework for simple, transparent andstandardised securitisation – such securitisations are aimed at providing significant capitalrelief•Regulation (EU) 2017/2401, amending Regulation (EU) No 575/2013 on prudential
requirements for credit institutions and investment firms
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As of January 1, 2019, these two new pieces of European securitisation legislation replace thedifferent pieces of legislation above governing European securitisations and introduce a newframework of rules. The SPR replaces the provisions of the Capital Requirements Regulation (CRR)
relating to the regulatory capital treatment of securitisation exposures held by EU credit
institutions and investment firms.
Under the Securitisation Regulation, the sector-specific approach to regulation is replaced with aset of rules that applies to all European securitisations, regardless who invests and whether thetransaction is private or public.
MarketUS
The securitisation market in the US represents 60% of the global market today. The crisis impacted
heavily the volumes of US securitisation which felt from over EUR 2.0 trillion in 2007 to EUR 915.8
billion in 2008 (inclusive of ABS, CDOs, Agency MBS and Non-Agency CMBS/RMBS) and have since
recovered fully to EUR 1.9 trillion for all of 2017. All the asset classes (but private label MBS – which
is nevertheless off its lows) showed an impressive rebound.

2,500.0(In EUR bn) US Securitisation issuance

2,000.0
1,500.0
1,000.0
500.0
0.0
2009

2010

2011

2012

2013

2014

2015

2016

2017

Q1 2018

Chart 1, Source: SIFMA/AFME Securitisation Quarterly Report
EuropeThe securitisation market in Europe was rather undeveloped till the late 1990s. Since then, there
has been a significant increase in securitisation activity. Many of the securitisation products widelyused by the financial industry across the world have been developed in the UK. The UK
securitisation is the largest market in Europe.
The financial crisis in Europe made securitisation plunge from EUR 819 billion in 2008 to EUR 423
billion in 2009 and steadily decreased to EUR 180 billion in 2013, before finally recovering at EUR
237 billion in 2017. It is interesting to highlight that European securitisations have held up very well
Page 54 of 130

through and since the crisis in both credit and pricing terms. European policymakers are making
every effort to revive the market, since the rationale for securitisation and the benefits it provides
remain strong. 7
Europe saw a general spread compression which pushed investors to look for yield and hence
supported deals with better pricing such as peripheral paper, CLOs, CMBS & non-prime RMBS
In Europe, there are mainly three types of investors interested in securitisation: a) institutions
without deep multiple funding sources (e.g. challenger/smaller banks, non-bank FI’s and PE houses
off the back of acquisitions) or that have a strategic reason to securitise (i.e. showing liquidity for
an IPO or deleveraging), b) peripheral jurisdictions, c) arbitrage players (e.g. CLO managers or bankunderwritten CMBS), and d) the auto sector where spreads are very tight. 8

2,500.0(In EUR bn) US & Europe Securitisations - 2009 Q1 2018

2,000.0
1,500.0

US
Europe1,000.0
500.0
0.0
2009

2010

2011

2012

2013

2014

2015

2016

2017 Q1 2018

Chart 2, Source: SIFMA/AFME Securitisation Quarterly Report

7

AFME / SIFMA / http://www.john-crosby.co.uk/pdfs/CCCO_WhyDoBanksSecuritise.pdf

8

http://www.asifma.org/uploadedFiles/Events/2014/Structured_Finance_Conference/Singapore_ASIFMA20Conference_Sent.pdf

Page 55 of 130

(In EUR bn) European securitisation Issuance

500.0
450.0
400.0
350.0
300.0
250.0
200.0
150.0
100.0
50.0
0.0

2009

2010

2011

2012

2013

2014

2015

2016

2017

Q1 2018

Chart 3, Source: SIFMA/AFME Securitisation Quarterly Report
2. Rest of Asia
In Asia, the regulatory and market frameworks governing securitisation are relatively nascent.
Domestic securitisation markets are more active relative to their cross-border counterparts. Crossborder issuance, which is only a fraction of US and European issuance, dropped sharply post 2008
as the market for CDOs (which accounted for the bulk of Asian issuance pre-2008) virtually shut
down.
It is worth noting that, as long as Asian companies will be able to obtain cheap funding in their local
capital markets, they will not look to cross-border securitisation deals.
2.1.

South Korea

Regulatory Perspective
South Korea’ Securitisation really took off in the aftermath of the financial crisis in 1998 with thepassage of the Asset-Backed Securitisation Act (ABS Act) on 16 September 1998 to facilitate therestructuring or disposal of non-performing loans of financial institutions and the Korea Housing
Finance Corporation Act (KHFC Act) enacted on December 31, 2003 to facilitate securitisation ofmortgage loans and student loans by the Korea Housing Finance Corporation (KHFC).It enables
KHFC to issue two types of mortgage-backed instruments: MBS and Covered bonds. The ABS act
allowed the establishment of a “True Sale” framework, and the legislation enabling the issue ofcovered bonds, has led to considerable development of the Korean cross-border ABS market.
In South Korea, Securitisations are usually performed within the framework of the ABS Act (ABSAct securitisations, which include securitisations by the KHFC) or outside the ABS Act (non-ABS Act
securitisations).

Page 56 of 130

The South Korean securitisation market has expanded since the introduction of ABS transactions
but the size of the non-ABS Act securitisation market remains much larger than the ABS Act
securitisation market. This is mainly due to the fact that ABS Act securitisation involves certain
procedural requirements under the ABS Act, such as registration of a securitisation plan. Thus,
unless the deal is looking for special benefits under the ABS Act, such as more lenient perfection
requirements; most securitisations are non-ABS Act securitisations. 9
It is worth noting, while covered bonds in South Korea are based on the current Korean coveredbond legislative framework, RMBS issued by the Korea Housing Finance Corporation (KHFC) is
effectively similar to a covered bond. Since investors in covered bonds have recourse to both theissuer and the underlying “cover pool” of assets, these structures are attractive from the viewpointof international investors. For the moment, KHFC has issued RMBS in the domestic markets andhas also issued USD-denominated covered bonds in the international market. These deals,
according to ratings agency Moody’s, are comparable to other Korean RMBS transactions. 10
MarketThe Securitisation domestic market in South Korea has developed into one of the mostsophisticated in Asia-Pacific. Today, South Korea has one of the most developed securitisation
frameworks in Asia. Cross-border Securitisation transactions remain quite low because originators
can source local currency funding by issuing bonds and because the Korean government has
encouraged Korean companies to reduce their foreign exposure due to the volatility of the global
economy (The Korean cross-border securitisation market is discussed in greater detail below).
In Korea, the big players in the securitisation market are mostly financial institutions. They are very
sensitive to funding cost for securitisation and structured finance deals which are quite costly andrequire a lot of work. That is why clients tend to not seek structured deals unless they see
significant benefits on those. 11
Central bank liquidity schemes and retained securitisations have not been common in South Korea.
Securitisation is concentrated mostly in residential mortgage-backed loans, credit card receivables,
auto instalment loans and loan receivables relating to real estate project finance. The mezzanine
tranches of CLOs with investment grade ratings are also particularly attractive for Korean insurancecompanies who have guaranteed high payouts on insurance policies and other products sold toinvestors in the past.
New securitisation products have been introduced recently in Korea such as the securitisation of
franchise trade receivables and there is also an increasing demand for allowing derivatives
structures, such as synthetic collateralised debt obligations (CDOs).

9

http://uk.practicallaw.com/6-381-1640?source=relatedcontent

10

https://www.moodys.com/research/Moodys-upgrades-KHFCs-two-covered-bonds-to-Aa1--PR_269744

11

http://www.iflr.com/Article/3093937/How-recent-legislative-proposals-impact-South-Korean-structured-finance.html

Page 57 of 130

Asset-backed securities (ABS) were first issued in Korea in 1999 and grew rapidly till 2001 but thensaw a decreasing trend till 2008. It was relatively less affected by the crisis than other products,
which explains the good figure in 2009 but declined again in 201o due to the suspension of P-CBO
issuance for bond market stabilisation funds. It rebounded in 2011 and we can see a growing trend
till now.
Asset-backed Commercial Paper (ABCP) is divided in two classes in Korea: ABCP issued pursuant to
the ABS Act and the ones issued pursuant to the Commercial Code.
Perspectives
The ABS Market in Korea developed thanks to the government which enabled the legal framework(ABS act & other acts) to remove the existing legal obstacles to securitizing assets. The regulatory
authority also helped to promote rapid, but not excessive, market development.
In Korea, the ABS Act provides the means for properly regulating the ABS market but additional
measures to supplement the current rules and regulations on ABS are required following thefinancial crisis.
Some concerns have been raised over the fact that ABCPs are not governed by the ABS Act as they
are largely issued based on mortgage loans, it is highly likely that the risks of the depressed realestate sector will pass through into other sectors, undermining the stability of the overall financial
market. Therefore, in order to stabilise the market, additional regulatory measures against the
ABCP are also required.
The government plans to take appropriate steps to improve the market system in order to prevent
asset-backed securities risk from spreading throughout the market, while also promoting thefuture growth of the asset-backed securities market. As asset-backed securities are an effective
and stable tool for corporations and financial institutions to finance capital and an attractive
investment vehicle for investors, the government plans to continue taking supportive measures forthe promotion of the asset-backed securities market.
In addition, the government needs to come up with comprehensive legislation for governing a wide
range of securitised products, including asset-backed securities and credit derivatives, in order tominimise the side effects of asset securitisation, while maximizing its proper functions in thefinancial market.
Korea has also enacted Covered Bond legislation (See Chapter 5 below). Some significant
amendments done in the Trust Act of Korea in 2012 also gave more flexibility for trusts to issue
bonds and debt instruments.
The main issue for foreign investors in Korea is the foreign exchange controls. On one hand it might
appear onerous and burdensome to foreign investors but on the other hand it contributed to the

Page 58 of 130

stability of Korean financial industry which economy is highly affected by the volatility of theforeign exchange market. 12
Cross-Border Activities
Following the first Korean cross-border ABS in 2001 by a capital company, Korea’s cross-bordersecuritisation market grew rapidly and turned into one of the few securitisation markets in Asia
Pacific where active participation by international banks are seen. Owing to its historical route asa private market and the relatively small size of approximately USD 2-3 billion in annual issuancevolume, the Korean cross-border securitisation sector has not evolved into a capital markets publicdistribution model but rather has predominantly been funded via private placements.

USD Billion

Cross-Border Issuance Volume by Asset Type
4.5
4.0
3.5
3.0
2.5
2.0
1.5
1.0
0.5
0.0

Air Ticket/Cargo
Auto
Card

2010

2011

2012

2013

2014

2015

2016

2017

Chart 4, Source: www.fss.or.kr
With the exception of a few RMBS issuances prior to the global financial crisis and the airline
ticket/cargo future flow transactions, Korea’s cross-border securitisations to date have typically
been placed privately with one to three investors at a time. One key reason for this tendency isthat the aggregate issuance volume of this segment has not reached a threshold level that would
be sufficient to attract sizable interest from overseas public investors on a consistent basis. No
major changes are expected in the foreseeable future, partly due to the ongoing policy of the
Korean government to maintain the foreign currency funding amounts of Korean companies toconfined levels.
The underlying asset classes for Korean cross-border deals to date have been limited to credit card,
auto, residential mortgage and air ticket/cargo. Credit card receivables have consistently been the
major asset class followed by auto receivables. There has not been any RMBS since late 2009. The
relatively large issuance volume seen in 2011 indicates a recovery/rebound in the securitisation
market which had slowed down dramatically in 2009 after the global financial crisis.

12

http://www.iflr.com/Article/3093937/How-recent-legislative-proposals-impact-South-Korean-structured-finance.html

Page 59 of 130

Korea’s domestic securitisation market, on the other hand, has continued to evolve solely in KRW
with a greater variety of asset classes including agency residential mortgage via Korea Housing
Finance Corporation (government entity), mobile handset receivable and non-performing asset,
etc. Aside from Korea Housing Finance Corporation, credit specialised financial companies (mostcross-border ABS issuers belong to this category) and non-financial companies account for a large
portion of the aggregate issuance volume. With an average annual issuance volume equivalent toapproximately USD 50 billion, the domestic securitisation market is considerably larger than the
cross-border segment, and public distribution is widely seen.

Issuance Volume by Issuer Type
90.0

Others80.0

KRW Trillion

70.0

Securities Company

60.0
Banks

50.0
40.0

Non- Financial Companies

30.0
20.0

Credit Specialized Financial
Companies

10.0

Public Corporations

0.0
2010

2011

2012

2013

2014

2015

2016

2017

Data source:
www.fss.or.kr

Chart 5

Page 60 of 130

Issuance Volume by Asset Type
90.0

SOC ABS

80.0

PF ABSKRW Trillion

70.0Marketable Securities

60.0
50.0

NPL

40.0

Trade Receivables

30.0

Handset Installment Receivables

20.0

Credit Card Receivables

10.0

Installment Sales Receivables

0.02010 2011 2012 2013 2014 2015 2016 2017

MBS

Data source:
www.fss.or.kr

Chart 6
2.2.

Singapore

Regulatory Perspective
Based largely on the English common law system, the development of a legal framework forsecuritisation in Singapore gained momentum in the late 1990s, as the government sought todevelop an active secondary bond market. In 1999, the Singapore government enacted regulations
that permitted individuals to invest their pension funds in bonds with a minimum Standard & Poor’s
rating of ‘A’ 13. These regulations governing eligible investments for the Central Provident Fund(CPF), Singapore’s pension system, increased the universe of eligible investments for thosecontributing into the CPF and also conferred advantages on local issuers. This created a very
favourable atmosphere for securitisations in Singapore, as issuers could now take advantage ofboth a favourable regulatory framework, coupled with a class of investors with an affinity for anatural long position in Singapore Dollar denominated instruments.
Specific legislation governing securitisation in Singapore was enacted by the MAS in September
2000, when MAS Notice 628 (as amended in 2006 & 2007) was promulgated. 14
Strong internal managerial control and the establishment of systems for managing and monitoring
risk, in relation to asset-based transactions are critically important and regulated bodies mustobtain the approval of the MAS before entering into ABS transactions. Some of the key disclosure
requirements to investors include the following: 15•

The securities do not represent deposits or liabilities and are subject to investment risk;

13

S&P Ratings Services

14

MAS Website http://www.mas.gov.sg

15

IFLR.com – article by Clifford Chance dated Nov. 2nd 2000

Page 61 of 130

••

The seller of the securities does not stand behind the capital value or performance of theassets/securities – except in certain cases, for permitted credit enhancement or liquidity
facilities; andThe SPV is independent from the bank (although related directors are permitted in certain
circumstances).

The regulations also set out the criteria for a clean sale of assets to a SPV, for capital adequacy
purposes. Some of the key features are 16:
•
•
•
•
•

The requirement that there should be a full transfer of risk and reward – essentially, thebeneficial interest in the assets must be transferred;
The transfer of the assets may not contravene any restriction in the documents relating to
the underlying assets;
There can be no obligation to repurchase assets, other than if there has been a breach of
representation or warranty;
The seller must not be obliged to make a market in the securities; andAny rescheduling arrangements entered into by the servicer must bind the SPV.

Additionally, the seller must obtain legal and accounting opinions that the regulations have been
complied with. The regulations also define the requirements for banks acting as servicers, credit
enhancements, liquidity facilities and the relevant capital treatments.
Transfer of receivables from an originator to an SPV is usually undertaken by way of assignment.
Assignment can take two forms: “Legal” or “Equitable”, depending on the nature of the underlying
transaction.
Among other important features of the legal framework governing Singapore securitisations, theassignment of actionable claims requires that the debtor be served a legal notice under sec. 4 (6)of the Civil Law Act. As a consequence, if debtor notification is to be avoided, assignments in
Singapore will have to be “equitable assignments”. Another consequence is that not being the legal
owner of the receivables, the securitisation SPV cannot bring claims in its own name and would
have to depend on the originator. 17
Finally, Goods and Services Tax (GST) is not applicable on the transfer of debt securities/securitised
instruments/notes. Only the assignment of mortgages attracts stamp duty while the securitisationof other receivables will not be subject to this duty. 18
Market trends and developments
Commercial Real Estate (CRE) has been the mainstay of securitisation activity in Singapore, withthe bulk of the structures consisting of on-balance sheet MBS, CMBS and REITS. The fist
16

IFLR.com – article by Clifford Chance dated Nov. 2nd 2000

17

http://www.vinodkothari.com

18

http://www.vinodkothari.com

Page 62 of 130

securitisation structures date back to the late-1990s, when real estate receivables were securitised,with the funding for this structure carried out through the issuance of long-dated fixed rate
mortgage-backed bonds. Other securitisation structures include credit card receivables, assetbacked CP and loans. The REIT (Real Estate Investment Trust) structure has been especially popular,
with the Capita Mall and Ascendas REITs among the more well-known of the several REITS thathave been listed on the SGX. Another unique feature of the securitisation market in Singapore is
the buy-back option embedded in the asset backed securities (ABS). 19 This feature allows theoriginator to retain a contingent claim on the upside potential of the asset price.
Up to 2006-07, in the years prior to the Global Financial Crisis (GFC), securitisations in Singapore
were focused on structures that incorporated Structured Investment Vehicles (SIVs) and conduits.
Post the GFC however, the market went into hibernation for a period of about 5 years till 2013,
when the need for funding diversification on the part of issuers looking at more efficient capital
structures, has become the key driver. Instead of having a mix of straight loans, bonds and equity,
issuers are looking at securitisation to diversify their sources of funding as banks run up against
single-borrower limits and as they review their risk-weighted assets amid tighter banking
regulations. 20 Yet another difference from the past is the structuring of deals aimed at a local
investor base (thus shielding them from currency fluctuations – a key consideration at a time ofincreased currency volatility) and the carrying out of more private placements – thus shielding
investors from mark-to-market risks.
2.3.

India 21

Regulatory Perspective
The financial sector in India has witnessed a series of reforms and changes since the early nineties,
when the government initiated a series of economic reforms, among which was the removal of anumber of hurdles standing in the way of foreign direct and indirect investment in India. The needfor a legal framework on securitisation was also recognised at this time, when various committees
tasked with looking into the development of securitisation pushed for the establishment of a legalarchitecture governing this key asset class.
The development of securitisation in India received a major boost over the 2002-05 period,
following the enactment of the Securitisation and Reconstruction of Financial Assets &Enforcement of Securities Interest Act (SARFAESI), 2002 (‘the Act’). The Act encompasses the areasof: securitisation of financial assets; reconstruction of financial assets; recognition to any security
interest created for due repayment of a loan as security interest under the Securitisation Act,
irrespective of its form; banks and financial institutions have the power to enforce the security

19

Sing, Tien Foo and Ong, Seow Eng and Sirmans, C. F., Asset-Backed Securitisation in Singapore: Value of Embedded Buy-Back Options.
Journal of Real Estate Finance and Economics, Vol. 27, No. 2.)20

http://JakartaGlobe.beritasatu.com

21

Sources: ASIFMA, ICRAPage 63 of 130

without intervention of the courts; setting up the Central Registry for registration of the transactionof securitisation, reconstruction and creation of security interests.
On specificity and problem with Securitisation in India is that securitisations follow a trust structurei.e. the assets are transferred by way of sale to a trustee, who holds it in trust for the investors. In
this situation, a trust is not a legal entity in law but it is entitled to hold property that is distinct
from the property of the trustee. Therefore, the trust performs the role of the special purpose
vehicles (SPV).
A number of clarifications and guidelines were published by the RBI over the last decade, such as:
In early 2006, the RBI issued guidelines on regulatory capital treatment for securitisation which had
an adverse impact on the securitisation market. While the RBI guidelines did provide a robust
regulatory and institutional framework for the orderly development of the securitisation market in
the long term, these guidelines did eliminate some of the incentives for securitisation in the shortterm. This led to reduction in issuance volume.
In February 2013, the RBI clarified the taxation of securitisation trusts.
In May 2013, the RBI broadened the scope of limits under ‘Agriculture’ and ‘Micro and SmallEnterprises (MSEs)’ sections of the overall PSL classification, which would have also contributed toan extent towards banks’ ability to source greater PSL volumes on their own and reduce
dependence on securitisation route to meet their overall PSL targets.
The RBI, in July 2013, put released guidelines for reset of credit enhancement (CE) in securitisationtransactions for banks, which was subsequently extended to cover NBFCs as well in the guidelinesof March 2014. Pursuant to these guidelines, some amount of reset of CE in securitisationtransactions is possible (prior to these guidelines, no reset in CE was permitted), subject to certain
criteria being met.
In May 2013, the RBI broadened the scope of limits under ‘Agriculture’ and ‘Micro and SmallEnterprises (MSEs)’ sections of the overall PSL classification, which would have also contributed toan extent towards banks’ ability to source greater PSL volumes on their own and reduce
dependence on securitisation route to meet their overall PSL targets.
In the 2016-17 budget, the Indian government provided a major tax reprieve, which provided an
impetus to mutual funds to invest in Pass Through Certificates (PTCs). Rather than taxing
distributions at the mutual fund level, the tax would be levied in the hands of investors – based on
the end investors’ marginal tax rates.
In February 2017, SEBI permitted Investments by Foreign Portfolio Investors (FPIs) in unlisteddebentures and securitised debt instruments (SDIs) issued by Indian companies, following a similar
notification by the RBI in November 2016.
MarketPage 64 of 130

India is one of the first countries in Asia Pacific to develop a securitisation market, with the firsttransactions as early as the 1990s.
In the early 1990s, securitisation was essentially a device of bilateral acquisitions of portfolios offinance companies. Back then, securitisation of auto loans remained the mainstay throughout the
1990s. The securitisation market in India has then developed till the 2000s and spread into several
asset classes – housing loans, corporate loans, commercial mortgage receivables, future flow,
project receivables, toll revenues, etc. that have been securitised.
The growth in the Indian securitisation market has been largely fuelled by the repackaging of retailassets and residential mortgages of banks and Financial Institutions. This market has existed since
the early 1990s but really matured, only post-2002, following the passage of the SARFAESI Act, as
pointed out earlier. Over the next three years, growth in RMBS, MBS and CDOs fuelled the rapid
growth of the securitisation market through 2005, as new classes of investors and issuers gained
confidence in the stability of and prospects for the further development of the market.
Furthermore, investor familiarity with the underlying asset classes, stability in the performance of
past pools and the relatively short tenor of issuances also helped boost the market.
After a brief dip in 2006, caused by the tightening of RBI capital requirements, strong growth in
ABS and CDO volumes boosted the Indian securitisation market through the first half of 2009, when
the after effects of the global financial crisis did have a negative impact. Even so, the absence oftransactions involving complex derivatives and CDS in the Indian context meant that Indian
securitisation volumes id stay relatively robust, in the immediate aftermath of the financial crisis.
The structured issuance volumes have grown considerably in the last few years in India. ABS is thelargest product class driven by the growing retail loan portfolio of banks and other FIs, investors’
familiarity with the underlying assets and the short maturity period of these loans. The MBS market
has been rather slow in taking off despite a growing housing finance market due to the long
maturity periods, lack of secondary market liquidity and the risk arising from prepayment/repricingof the underlying loan.
On account of an unfavourable tax regime introduced in 2013 (which has since been reversed –see above) during FY2014 (Financial Year 2014), the overall securitisation market (including rated
bilateral transactions) in India shrunk further by 5% over the previous year, in value terms. The
number of transactions was also lower by 4% in FY2013 than that in the previous fiscal. While thenumber and volume of ABS transactions declined by about 14%, the number of RMBS transactions
more than doubled in FY14, (an increase of 75% in value terms).
However, following the various liberalisation measures introduced by the Indian government, in
FY2017, the Indian securitisation market registered healthy growth for a second consecutive year
as pass through certificates (PTCs) issuance volume soared to INR 430 billion in FY2017, comparedto INR 250 billion in FY2016 (which in itself was an improvement relative to FY2015). This growthof 72% year on year (y-o-y) was mainly driven by the growing appetite of (existing and new) banks
for priority sector qualifying assets; however, the year also saw a substantial increase in
securitisation of non-priority sector assets.
Page 65 of 130

Taking a more granular look at the growth in PTC issuance volumes, the last two years have seen
the PTC market grow on the back of regulatory developments such as the revised Priority Sector
Lending (PSL) guidelines which decreed banks to achieve various sub-targets within the overall PSL
target and also progressively increased the PSL target for foreign banks. The year saw a growing
number of non-banking finance companies (NBFCs) investing in PTCs primarily due to the higher
yields attached to those instruments. NBFCs and (Asset Management Companies) AMCs,
accounted for the bulk of the investments in non-PSL securitisation.
However, securitisation volumes fell back again in FY2018, dropping 7.2%. The cause of this drop
in volumes was twofold: a) The issuance of Priority Sector Lending Certificates (PSLCs) grewstrongly – these certificates are effectively a substitute for securitisation, since financial institutions
can meet their PSL targets through the use of these certificates – without having to buy portfolios
of securitised PSL assets, which would achieve the same objective. b) Uncertainties with respect tothe applicability of GST to securitisations (which have since been clarified) also contributed to thisy-o-y drop.

Page 66 of 130

Trend in Securitisation Issuance by Value, in INR Millions, per Financial Year
FY 14

FY 15

FY 16

FY 17*FY 18**

Amount Share

Amount Share

Amount Share

Amount Share

Amount ShareABS

235,040

82%

163,300

95%

246,860

99%

281,700

31.3%

RMBS

52,960

18%

8,400

5%

2,700

1%

145,800

16.2%

Total RetailSecuritisation

288,000

100%

171,700

100%

249,560

100%

427,500

100%

Vehicle Loans*

-

-

-

-

-

-

324,000

36%

Microfinance +others *

-

-

-

-

-

-

148,500

16.5%

Overall total

288,000

100%

171,700

100%

249,560100%

900,000

100%

Growth

-5%

-40%

+45%

NC.

Avg. Deal size

1,490

1,040

1,170

NC

836,000

100%

Table 9. Financial Year 2013 - 17, i.e. April 1, 2013 to March 31, 2017. FY2017 data are
estimates* Data available for FY2017 only** Only aggregate data available without sectoral breakdowns
Source: ICRA
Issues and Recent Developments
Nowadays, India's budget is prioritizing growth over deficit reduction and India's growth isexpected to remain stronger than the global average and more robust than the median for similarly
rated sovereigns. India will have long-term funding needs which could be provided by the
securitisation market to finance housing, infrastructure and urbanisation projects.
The legal framework for securitisation is at a nascent stage in India as it is restricted to certain
institutions namely, banks and financial institutions only. The Securities Contracts Regulation (SCR)
Act is certainly a futuristic step and well-deserved appreciation must be given towards this step. It
is hoped that in the future, more and more transactions may be included under the Act so that themarket matures and reaches an advanced stage like the UK or the US, as this process will support
economic growth.
The Act is an important step by Indian government as it provides the much-needed legal sanctity
to securitisation by recognizing the securitisation instrument as a security under the SCR Act.
Development of the market for securitisation in India will need efforts of the Central Government,
State Governments, RBI and SEBI, has permitted mutual funds to invest in these securities. To
galvanise the market, FPIs can also be allowed to invest in a wide range securitised debt
instruments – a process that has already begun. FPIs are already familiar with these instruments inother markets and can, therefore be expected to help in the development of this market. However,
the measures taken in India are still incomplete and more dedicated efforts would be necessary
for a robust growth of asset securitisation market in India.

Page 67 of 130

•
•

•

•

•

•

There are several issues facing the Indian securitisation market such as:
Stamp duty: In India, stamp duty is payable on any instrument which seeks to transfer
rights or receivables. Therefore, the process of transfer of the receivables from theoriginator to the SPV involves an outlay on account of stamp duty, which can makesecuritisation commercially unviable in states that still have a high stamp duty. A numberof states have reduced their stamp duty rates, though quite a few still maintain very highrates ranging from 5-12 per cent. To the investor, if the securitised instrument is issued as
evidencing indebtedness, it would be in the form of a debenture or bond subject to stamp
duty, and if the instrument is structured as a Pass Through Certificate (PTC) that merely
evidences title to the receivables, then such an instrument would not attract stamp duty.
Some states do not distinguish between conveyances of real estate and that of receivables
and levy the same rate of stamp duty.
SEBI has suggested to the government on the need for rationalisation of stamp duty with aview to developing the corporate debt and securitisation markets in the country, which
may going forward be made uniform across states as also recommended by the Patil
Committee.
Foreclosure Laws: Lack of effective foreclosure laws also prohibits the growth of
securitisation in India. The existing foreclosure laws are not lender friendly and increase
the risks of MBS by making it difficult to transfer property in cases of default.
Taxation related issues: There is ambiguity in the tax treatment of MBS, SPV trusts, andNPL trusts. However, one positive development is that the taxation structure has beenchanged from distribution tax at SPV level to taxation in the hands of investors, thereby
increasing total after-tax returns. This has led to a boost in securitisation/ABS issuancethrough FY2017.
Issues under the SARFAESI Act: A security receipt (SR) gives its holder a right of title orinterest in the financial assets included in securitisation. This definition holds good for
securitisation structures where the securities issued are referred to as pass-throughcertificates (PTCs). However, the rationale fails in the case of pay through certificates withdifferent classes of primary and secondary rights to the cash flow.
Legal Issues: Investments in PTCs are typically held-to-maturity. As there is no trading
activity in these instruments, the yield on PTCs and the demand for longer tenures
especially from mutual funds is dampened. Till recently, PTCs were not explicitly covered
under the Securities Contracts (Regulation) Act, definition of securities. This was however
amended with the Securities Contracts (Regulation) Amendment Act, 2007 passed with aview to providing a legal framework for enabling listing and trading of securitised debt
instruments. This will bring about listing of PTCs which will hopefully help to resolve the“lack of liquidity” issue.

Securitisation requires a stable and predictable operating environment. India must establish clear
legislative, legal and regulatory guidelines for market participants, incentivise the development ofhigh-quality data for proper risk assessment, and increase foreign participation.
To this end the RBI has carried out an amendment to the rules governing investment by FPIs in
India by expanding the list of areas in which FPIs can invest. FPIs can now invest in securitised debt
Page 68 of 130

instruments, including (i) any certificate or instrument issued by a special purpose vehicle (SPV) set
up for securitisation of asset/s with banks, FIs or Non-bank Financial Companies (NBFCs) as
originators; and/or (ii) any certificate or instrument issued and listed in terms of the SEBI
“Regulations on Public Offer and Listing of Securitised Debt Instruments, 2008”.
On reading of the above text, it is quite clear that FPIs will be able to invest in both listed andunlisted certificates/ instruments issued by SPVs set up for securitisation of assets. Here it is also
important to note that the originators of the assets should be either banks, FIs or NBFCs.
In February 2017, SEBI explicitly permitted FPIs to invest in securitised debt instrument (“SDI”). The
SDIs include (i) certificate or instrument issued by a special purpose vehicle set up for securitisationof assets where banks, financial institutions or NBFCs are originators; and/or (ii) certificate or
instrument issued and listed in terms of the SEBI (Public Offer and Listing of SDIs) Regulations,
2008.
(Sources: ASIFMA, ICRA, Vinodkothari.com)

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V.

International regulation and disclosure (Clifford Chance)
An outward looking securitisation market naturally needs to have regard to the rules of thejurisdictions in which it wishes to operate, and as issuers in Asia look to the capital markets in
Europe and the US as a source of funding, the regulations that apply in those markets are brought
into sharp focus.
Following the global financial crisis, the pace with which regulation in these markets has been
introduced grew, though in recent years there has been a degree of consolidation, as those rules
have settled in and been adjusted to more accurately fit the markets to which they apply and thebenefits they are seeking to bring about.
Regulation in Europe and the US must be considered from two important angles when an issuer in
Asia is looking to market their transaction to investors in these locations.
First, to what extent might the European or US rules be applicable to a transaction established an
operated in Asia and second, what are the applicable disclosure standards?
1. Regulatory Considerations – Europe
Very broadly, European rules impose requirements on (i) investors in securitisations, (ii) originatorsor sponsors of securitisations and (iii) certain third parties involved in the securitisation process.
When an issuer in Asia is considering issuing to investors in Europe they first consider whether or
not their transaction is a "securitisation" under the European rules – if it is not, then the European
rules will generally not apply; if it is, then the European rules will need to be taken into account.
The EU Securitisation Regulation, which will replace the EU Capital Requirements Regulation in
January 2019, defines "securitisation" as follows:"securitisation" means a transaction or scheme, whereby the credit risk associates with an
exposure or a pool of exposures is tranched, having all of the following characteristics:•••

payments in the transaction or scheme are dependent upon the performance of the
exposure or of the pool of exposures;the subordination of tranches determines the distribution of losses during the ongoinglife of the scheme; andthe transaction or scheme does not create [a specialised lending exposure].

It may be the case that some of these features are not present – e.g., there is no tranching of thecredit risk or the subordination does not determine losses during the ongoing life of the scheme –although this will need to be assessed on a case-by-case basis.
Where the transaction does fall within the definition, the transaction will need to meet certain
requirements. In many cases these are not problematic, and the requirements may already bepresent in the proposed transaction. The two requirements which typically receive the mostattention are:Page 70 of 130

••

the risk retention requirement – by which an appropriate person (usually the originator)
must retain 5% of the risk in the transactions. There are multiple ways this risk can beretained – for instance, by having the originator hold a 5% vertical slice of the credit risk, by
having the originator accept the first 5% of losses or by having the originator retain aseparate pool of exposures which could have been securitised but were not. Where therules apply to transaction in Asia, the first loss retention is the most commonly seen
method of compliance; andthe dual-rating requirement –which provides, if the issuer, the originator or the person
liaising with the rating agencies is located in Europe, that where a rating agency has been
appointed to provide a rating, a second rating must also be appointed to provide a rating.

A further commonly asked question is whether the EU rules on simple, transparent andstandardised securitisation can apply to Asia securitisation. These provide favourable capital andregulatory treatment to originators and investors. In nearly all cases these rules are not applicable
to a transaction involving an originator based in Asia – the rules explicitly exclude transaction unlessthe originator, the sponsor and the SPV are all established within the EU.
On further point to note is that the EU rules apply throughout the life of the securitisation, so ifthey apply, the transaction must be structured so that the requirements are met until the end of
the transaction.
2. Territorial Considerations – USThe US securitisation rules also impose a risk retention obligation upon the transaction's "sponsor"(which can broadly be equated to its originator). Broadly the rules apply to:…fixed income or other securities collateralised by any type of self-liquidating financial asset(including a loan, a lease, a mortgage, or a secured or unsecured receivable) that allows aholder of the security to receive payments that depend primarily on cash flow from the asset…
On its face this is a broader test than the EU test, however, the US rules do provide for a wider
variety of exceptions. In particular, there are a variety of exceptions available to certain CMBS and
CLO transactions. The most exception which sponsors in Asia most frequently avail themselves of,
however, is referred to as the foreign safeharbour. If the transaction meets the following criteria,
it will be exempt from the rules:
•
•
•

•

the transaction is not required to be registered under the US Securities Act of 1933 (the"Securities Act");
neither the sponsor nor the issuer is chartered, incorporated or established under US law;no more than 10% of the notes and other interests are sold or transferred to "US persons".
Note, however, that this definition of "US persons" is wider than the equivalent definition
under Regulation S and captures, among other people, off-shore funds of US entities; andno more than 25% of the assets were acquired from a majority owned affiliate of thesponsor or issuer that is chartered, incorporated or organised under US law.

Page 71 of 130

While the first, second and fourth elements above are unlikely to be present in a securitisation in
Asia, it is the third element, the presence of US investors, which is most typically considered in
more detail. In availing themselves of this exception, sponsors in Asia become more involved in
the investor vetting process and seeking to make themselves comfortable that the investors are,in fact, not U.S. persons within the definition.
The US risk retention rules are, in contrast to the EU rules, a day-one test. That is to say they are
relevant only on the issuance date. One important point to consider in this respect, however, iswhere a tranche (e.g., the Class C Notes) are retained by the sponsor or a lead manager out of theinitial issuance and only distributed to the market at a later date, it is that later date which willcount as the issuance date for the purposes of testing compliance with the US risk retention rules.
3. Disclosure Requirements
In the US, the offer and sale of securities is regulated in the Securities Act which requires theregistration of all offers and sales of securities with the Securities and Exchange Commission (the"SEC") unless there is an available exemption. Rule 144A under the Securities Act provides a safe
harbour for the resales of securities by initial purchasers to "qualified institutional buyers" (asdefined in Rule 144A). Rule 144A is generally considered the most efficient and effective method
to offer asset-backed securities to US investors. A Rule 144A offer is subject to the anti-fraud
liability provisions of the US Securities Exchange Act of 1934 as amended (the "Exchange Act") and,in particular, the broad provisions of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder.
Rule 10b-5 provides that it is unlawful for any person in connection with the sale of a security "tomake any untrue statement of material fact or to omit to state a material fact necessary in orderto make statements made, in light of the circumstances under which they are made, notmisleading". Rule 10b-5 imposes potential civil liability on the managers as well as the issuer forincorrect or incomplete disclosure in connection with a sale of securities.
As a result of the breadth of Rule 10b-5 liability, market practice has developed to insist on
enhanced due diligence in the context of Rule 144A offerings when compared to the level ofdiligence typically undertaken in Regulation S-only offerings, where the standard will be aligned to
local requirements. By contrast, Regulation S provides that offers and sales in offshore transactions
outside of the US with no directed selling efforts in the US are not subject to Securities Act
registration requirements. Regulation S-only offerings will, of course, still be subject to local
regulation in the jurisdiction where the offering takes place.
One of the primary differences between a Rule 144A and Regulation S-only offering is the
documentary due diligence exercise undertaken in most Rule 144A offerings. In the US,
documentary and legal diligence procedures have developed over time through case law and SEC
guidance to involve the collection and review of information relating to the securitised assets, theoriginator and its underwriting or sourcing processes, the servicer and the issuer. This exercise isparticularly important because US case law cautions against taking management’s representations
and statements at face value.

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The process generally begins with legal counsel to the managers preparing a document request
list, which is sent to the originator, servicer and their legal counsel. Once the scope of the review
is agreed, documents are compiled and are reviewed by both legal counsels. The purpose of thereview is to verify that there are no material structural or legal impediments to the proposedtransaction, confirm the accuracy of the offering documents and minimise the reputational risk ofthe managers. The documents provided in response to the diligence request list are reviewed,
missing documentation and information is identified and requested and any issues which may
impact on the offering disclosure are discussed and addressed.
Both Regulation S-only and Rule 144A offerings typically include diligence of the underlying assets,
which is conducted in accordance with market standards relating to the applicable asset class. Suchreview may, for example, include a thorough review of commercial mortgage loans or reliance onthird party reports for pools of residential mortgages. While there is not generally a notabledivergence between the approach to the standard of the asset-level diligence exercise whencomparing a Rule 144A and Regulation S-only transaction, from a Rule 10b-5 perspective such
exercise will have pronounced importance in supporting the disclosure materials relating to theassets and providing comfort on the accuracy and strength of the representation and warranty
package delivered by the seller of the assets.
Additionally, diligence sessions between senior management of the relevant originator andservicer and the managers are generally undertaken for both Rule 144A and Regulation S-onlyofferings. The purpose of these sessions is to ascertain in detail the scope of the business of theoriginator and the servicer, the markets in which they operate, relevant strategy, risks and othermaterial information relating to the offering. Historically the intensity of management diligence ina Rule 144A context was seen to be higher than for a Regulation S-only offering. However, overtime the trend has been to move towards the Rule 144A approach for Regulation S-only offerings
also.
Lastly, auditors are generally required to provide comfort assurance to the managers andoriginators on both Regulation S-only and Rule 144A offerings. This comfort typically takes theform of a pool audit letter reflecting the results of sample testing the actual assets in the poolagainst the data tape and an “agreed upon procedures letter” providing comfort to the managers
on the statistical information contained in the prospectus. There may however be certain nuanced
differences in the form or substance of the comfort given by the auditor depending on whether
the offering is made in reliance on Regulation S or Rule 144A. These differences will derive largely
from the internal procedures of the auditor (that themselves normally take account of national
professional practice guidelines) and the level of comfort that is required by the managers for thattransaction given their enhanced liability under Rule 10b-5.
Regulation S-only and Rule 144A offerings have in common the use of due diligence to protect
against legal liability and reputational risk and to stress test the viability of a transaction. While inmany respects the lines drawn between the standards of a Regulation S and Rule 144A offering
have become blurred over time, there remain some differences in the approach to due diligence.
Issuers balance the significant benefits of accessing the US capital markets against the additional
Page 73 of 130

costs and time requirements associated with the enhanced diligence effort. Whether an offering
is made in reliance on Regulation S or Rule 144A, it is clear that the appropriate level of diligencerequired to claim the status of "duly diligent" and to open the door to establishing a defence will
depend on an analysis of the particular offering and the challenges that it presents.
4. Liability Comparison Table
Rule 144A standards andpractices

Timingofliability
prospectus disclosure

Negative
letter

Attaches at the "time of sale" toall disclosure materials (i.e., thefor red prospectus and any Attaches at the point of
pre‑pricing
supplements publishing the back prospectus.
thereto) delivered to investors
as of such time.

assurance/10b-5

Documentary diligence

Diligence of underlying assets

Delivered by both counsels toissuers/originators
and Not required.
managers.
Conducted by counsel insupport of the negative Not required.
assurance letter.
Conducted by counsel inaccordancewithmarketstandards relating to theapplicable asset class.
Written reports are
generally prepared.

Management due diligence

Regulation S-only standards
and practices

Conducted by counsel inaccordancewithmarketstandards relating to theapplicable asset class.

not Written reports are generally
delivered.

Conducted by counsel and Conducted by counsel andmanagers.
managers.

Table 10

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VI.

Covered Bonds (Fitch Ratings)

1. What is a Covered Bond?
A “covered bond” is a debt instrument with dual recourse: first, to a financial institution, and,second, to a pool of assets that can change over time. Covered bonds have traditionally been used
to facilitate long-term funding for financial assets – mainly residential mortgages – and publicsector loans. They have also been used to fund commercial real estate mortgages, ship loans and,less frequently, unsecured SME loans as well as aircraft financings.
Fitch Ratings’ analysis focuses on this dual-recourse nature, and the ratings address a bond’s
probability of default (PD; timely payment) and, following a hypothetical default, recoveries fromthe cover assets. Covered bonds in some jurisdictions benefit from a privileged position over anissuer’s senior unsecured debt in a resolution scenario. In the event of an issuer default, collateral
may allow for the ongoing payment of obligation, as well as for recoveries from the cover pool.
Covered bonds also benefit from structural features that mitigate specific risks, such as interest
rates and liquidity. As such, they can be rated above an issuing bank’s Long-Term Issuer Default
Rating (IDR) which generally represents the default risk of senior unsecured debt to third-party,
non-government creditors.
2. Development of Asian Covered Bonds
Covered bonds have been viewed historically as a purely European funding product, but the reachhas extended from Europe for the best part of almost a decade. A number of countries such as
Australia, Chile, Canada, New Zealand, Singapore, South Korea and Turkey have now establishedtheir own covered bond markets. This expansion has been driven partly by events at the time of
the 2008 global financial crisis that limited liquidity and funding where wholesale debt markets
were effectively shut. The European covered bond market was credited with remaining open at
the height of the crisis, or (depending on the country) being the first to re-open, allowing banks toaccess funding, albeit heavily supported by the European Central Bank. This experience prompted
other regulators and governments, whose banking systems were affected by the shutdown offunding markets during this time, to take a closer look at the issuance of covered bonds for theirdomestic banks.
The development of covered bonds in Asia has been driven by market participants, regulators andlawmakers to enact a set of rules where a covered bond market can be established and provide afunctional, reliable and consistent long-term funding tool. Non-European regulators continue tolook at covered bonds as an alternative contingent funding tool for their markets.
Each country has developed a covered bond framework in its own way. It is evident, though, thatthey have taken what exists in other frameworks and used the best of those parts that suited theirrequirements. In the case of South Korea, the framework followed the integrated issuancetemplate based on the German Pfandbriefe model. By contrast, Monetary Authority Singapore(MAS) used a principles-based approach on the guidance for covered bond issuance – the “asset
segregation” method – monitoring and eligible assets, yet it allowed issuers to commercially agree
Page 75 of 130

aspects of the structure and contractual obligations. In both cases, the regulators looked to restrict
covered bond issuance via a 4% limit relative to the total of a bank’s assets, to avoid large asset
encumbrance due to covered bond funding. Compared with other countries with a similar cap, thisis on a par with the issuance cap set in Canada and is lower than Australia and New Zealand where
caps are 8% and 10%, respectively.
Most jurisdictions are silent on the use of excess collateral in covered bond programmes. The
Australian covered bond framework, however, is the most prescriptive. It stipulates that excess
cover assets not required for the repayment of covered bonds belong to the issuing bank. This
ensures that excess collateral is available to repay depositors of the issuer, and therefore cannot
be relied upon by covered bond investors. The strictness of the Australian regulator on asset
encumbrance resulting from covered bond issuance reflects its position of preventing depositor
subordination. This aspect has not been transposed in regulation to other jurisdictions in Asia sofar, although it is structurally possible to achieve the same – through a feature called a “demandloan” that manages the excess collateral in programmes (see Section 3.7).
2.1.

Development Timeline of Covered Bonds in Asia

2.1.1. South Korea
The first Asian covered bond originated from South Korea in 2009 through a structured coveredbond issued by Kookmin Bank under the Korean Securitisation Act. The transaction was a single
issuance secured by mortgage assets as well as credit card receivables. In 2010, Korean Housing
Finance Corporation (KHFC) issued its first covered bond under its programme governed by the
Korean Housing Finance Act. Each covered bond issuance from KHFC is backed by a distinct pool ofmortgage assets, each purchased from an originating bank. Using the KHFC’s mortgage purchaseprogramme where KHFC originates its loans through Korean banks as the origination channel,
participating Korean banks could access covered bond funding without needing a separate coveredbonds programme. KHFC has issued in total KRW 4,784bn (equivalent to USD4.5 billion) mortgagebacked bonds as of end-June 2018, which comprised a combination of onshore and offshore
issuance.
In 2012, the South Korean authorities proposed the Covered Bond Act, which coincided with thegovernment’s concerns regarding high household debt. Along with the Financial Services
Commission (FSC), it hoped that covered bonds, representing long-term fixed-rate funding, would
enable the banks to offer longer-term fixed-rate mortgages. This measure was to help curb the riskof households with high short-term debt suffering an interest-rate shock. It was intended thatcovered bonds would help banks to manage interest-rate risks as well as enabling the banks tomeet the FSC’s fixed-rate mortgage target. The Covered Bond Act along with the presidential
decree was enacted on 15 April 2014. In June 2015, Kookmin Bank issued its first covered bondunder the legal framework. It has issued up to USD1 billion as of end-June 2018. No other bankhas issued covered bonds out of South Korea to date under the Covered Bond Act.
Page 76 of 130

2.1.2. Singapore
Singapore’s MAS started developing a covered bond framework in 2012 with the release of a
proposal to introduce rules to allow covered bond issuance by Singaporean incorporated banks.
Unlike the legislative route taken in South Korea, MAS preferred to issue regulation under the
existing Banking Act. The regulation for covered bonds outlined in MAS Notice 648 was issued in
December 2013. This notice was updated further in June 2015 to clarify parts of the original noticeand to provide banks with the flexibility to segregate the cover assets through either an assetowing special purpose vehicle (SPV) or by way of a declaration of trust. This last change was toenable to banks to comply with specific obligations relating to the Central Provident Fund (CPF) for
mortgage assets where the borrower elected its use.
Finally, in June 2015 DBS Bank Ltd issued its inaugural covered bond. United Overseas Bank (UOB)
and Oversea-Chinese Banking Corporation Limited (OCBC) issued their first covered bonds in March
2016 and March 2017, respectively. As of June 2018, the equivalent of USD9.5 billion of bonds had
been issued.

2.1.3. China
China made its first attempt to issue a structured covered bond in 2016, through Bank of China
Limited’s London branch. The structure was a single issuance connected to a discrete pool ofPeople’s Republic of China (PRC) domestic “green bonds” issued by Chinese corporates. Thisissuance was in light of the Chinese government’s initiative to encourage green bond funding. The
cover assets and structure that were used deviated substantially from the accepted covered bondmarket norms seen in other countries. Nevertheless, the issuance was supported by the various
Chinese regulators in respect to bank and market supervision. Only USD500 million has been issued
in total, and there has been no further issuance from China to date.

Page 77 of 130

Key Characteristics of Asia Covered Bonds
Singapore

South Korea

South Korea

China

No of issuers

3

1

1

Legal framework

Legislative (MAS
Notice 648)

Legislative(KHFC Act)

Structured

Mortgage
Soft bullet

1
Legislative(Covered Bond
Act)
Mortgage
Soft bullet

Mortgage
Hard bullet

Bonds
Hard bullet

Multi -issuance

Multi -issuance

Single issuance

Single Issuance

4% of total assetsof the bank

8% (4% via
presidential
decree)

n.a.

n.a.

3%

5%

Contractual

Contractual

SPV/declarationof trust
Asset coverage
test
Yes

Legal ring-fencing
of assets
Asset coverage
test
Yes

Legal ring-fencing
of assets
Asset coverage
test
Yes

Pledge over theassetsAsset coverage
ratio
Yes

AAA

AAA

n.a.

n.a.

Pool typeIssuance typeMultiissuance/single
issuance
programmes
Assetencumbrance
limit
Minimum legal
OC
Asset segregation
Asset valuation
methodAsset monitor
Maximum
Covered Bond
Rating by Fitch

Source: Fitch, Issuance documents

Table 11
2.2.

Other Countries and Challenges

Other notable jurisdictions that are actively in the process of developing covered bonds
frameworks are India, Malaysia and Thailand. Each of these countries is at a relatively preliminary
stage of discussions with market participants, regulators and governments. These markets could
possibly manage to start with a structured covered bond while a satisfactory framework isdeveloped.
Whether other Asian countries start to develop their own covered bond framework will depend
mostly on the success of the two established markets of South Korea and Singapore, as well as thecost/benefit of issuing covered bonds and whether this is consummate with a bank’s funding-costprofile. In Fitch’s view, one of the main hindrances in the development of covered bonds in Asia isthe large differential of funding costs between covered bonds and the highly liquid Asian banking
system, funded mainly through deposits and local term funding. Second, the cost and availabilityof interest and currency swaps to issue in offshore currencies is more difficult in smaller markets,
where such exposures do not already exist, or are too small to absorb the size of the transactions
needed to attract investors. Costs associated with the mitigation of potential transfer andconvertibility risks through currency swaps can be also prohibitive (see Section 3.5). This may limit
the size and capacity of smaller issuing markets.
In markets where local banks’ funding is mainly through deposits, the need for local-currency
covered bonds is not a high priority for issuers while deposits remain cheaper in comparison. As aresult, the lack of local-currency covered bond funding may limit the perceived market liquidity ofPage 78 of 130

the asset class. This could have an impact on covered bonds’ use as highly liquid assets for local
regulatory purposes, as regulators would need to satisfy themselves that such assets could beliquidated as required in periods of stress.
Fitch’s analysis of new covered bond jurisdictions takes into consideration whether these markets
have additional risks that will have an impact on the ability of repayment on covered bonds. Theserisks differ between emerging and developed markets but are driven by liquidity, sovereign, market
and counterparty risks. Most of the markets considering covered bonds in Asia are classified as
emerging markets, hence they exhibit greater risks by virtue of their size and limitations – which
could trigger a default of covered bonds. Fitch gives greater scrutiny to non-mature banking
markets; those where issuing banks have only limited exposure to the assets used as collateral forcovered bonds with a lack of liquidity for them; risk of capital controls being imposed; or where
there is a limited swap market for the type of swaps used in the covered bond programmes. Should
the risk be deemed material, these aspects can limit any uplift above a bank’s IDR in Fitch’s analysis.
If a developing covered bond market has previously securitised, there is no difference in our
analytical treatment of the risk assessment compared with a market that has had no previous
experience. However, markets that have already securitised have an advantage allowing for timeand cost savings. Issuers can leverage off existing technology to help streamline the data gatheringand processing for regular reporting, which is one of the largest burdens in setting up a newcovered bond programme. Furthermore, the use of existing securitisation legal ring-fencing
arrangements on cover pools is generally easier and quicker as they have already been tested andproven where there is no specific covered bond legal framework in place. This is especially true
when dealing with the same assets, i.e. residential mortgages in mortgage-backed securities.
2.3.

Regulatory Recognition of Asia-Pacific (APAC) Covered Bonds

Covered bonds issued outside of Europe have not benefited historically from specific risk-weights
among European investing banks, which are the largest investors of covered bonds. This fact has
incentivised Europe-based investors to prefer holding European covered bonds, and as a result
provides pricing advantages for Europe-based issuers over other covered bonds markets. However,this is potentially set to change with regulated covered bonds from OECD jurisdictions around theglobe. They will benefit from the proposed Basel III risk-weight provisions due to be implemented
in 2022, for so long as they comply with a minimum overcollateralisation (OC) of 10%. Fitch believes
the implementation of increased minimum OC on a regulatory basis would strengthen programmes
further against adverse credit risks. Even so, the proposed changes to EU capital requirements
continues to maintain the favourable treatment for EU covered bonds, provided mandatory OC is
at least 2% or 5% depending on the cover asset type.
Separately, under the EU’s covered bond draft directive, third-country recognition for coveredbond markets in Australia, New Zealand, South Korea and Singapore could be possible. The
explanatory memorandum leaves open the decision on “third countries”. Once the directive ispassed and transposed into domestic law, which is expected in 2020, the European Commission
and the European Banking Authority will have a three-year period to formulate recommendations
for an equivalence regime and report to the European Parliament. The length of time to confirm
Page 79 of 130

regulatory equivalence is long; but should third countries be accepted, Fitch believes theframeworks of APAC covered bond markets compare well enough with those of their European
counterparts for regulated covered bonds issued out of these countries to tick all the boxes forrecognition.
Covered bonds are generally considered highly liquid assets, and most countries adhering to Basel
III liquidity standards have allowed them to count towards the banks’ liquidity coverage ratios. In
Singapore and South Korea, covered bonds rated ‘AA-’ or higher are eligible as level 2a HQLA under
their respective LCR regulations. Euro-denominated covered bonds issued from the APAC region
are also considered eligible level 2a high-quality liquid assets (HQLA) under the European liquidity
coverage ratio (LCR) regulations. Under the European regulation there are specific requirementsthat must be met in order for covered bonds from “third-countries” to be considered eligible under
its regime, including the requirement of a minimum ‘AA-’ rating. Conversely, in Australia
regulations around HQLA are limited to level 1 only – meaning covered bonds are not considered
eligible HQLA under the Australian LCR regime. Despite this, Australian covered bonds are repoeligible assets and can be used as qualifying collateral for the committed liquidity facility with theReserve Bank, which can be used by banks to meet their LCR requirements.
3. Structural Features and Risks of Covered Bonds
3.1.

Covered Bond Structures and Frameworks

Covered bond frameworks can be based either on contractual arrangements, principles-based
regulation, specific legislation or a combination of all three. The frameworks are developed byregulators using existing laws or by implementing dedicated covered bond legislation to protect
the claims of investors over the cover pool. In Singapore, they rely on a principles-based regulation,
whereas in South Korea there are specific legislation and additional regulation for covered bonds.
Based on the type of covered bond frameworks that are in place, there are two distinct coveredbond template types in Asia: the asset-owning SPV and the integrated issuance template.

Page 80 of 130

SPV Template with Asset Trust Declaration - Singapore

Assets Trustee
Declaration ofAsset TrustContribution to
Assets Trust

Beneficial Interest
in Assets Trust

Sale of Mortgages (Via
Equitable Assignment)
Swaps Payments

SellerConsideration

Covered Bond
Guarantor

Intercompany and
Demand Loan

Swap Provider

Repayment of Intercompany
and Demand Loan

Security
TrusteeIssuerIssuerCovered Bond
Guarantee

Covered Bond
Proceeds

Deeds of
ChargeCovered Bond
Issuance

Security underDeeds of
ChargeCoveredBondholders/
Bond Trustee

Other Secured
Creditors

Source: Fitch

Figure 13
Integrated Issuance Template - Korea
Legal Framework: Covered Bond Laws

Swap Providers

IssuerIssuerAsset
MonitorCover Pool

Cover Pool
Issuance

Regular Monitoring

Financial Services
Commission (FSC)

Proceeds

Investor

Source: Fitch

Figure 14
Page 81 of 130

Covered bond issues can be a bullet, either a “hard bullet” or a “soft bullet” (extension period of
12 months) or conditional pass-through (CPT). The soft bullet and CPT issuance type have been
more recent additions to the covered bond market, mainly to address specific cost issues of bankheld liquidity. The majority of covered bond issuance globally is soft bullet. In addition, as there isno need to sell assets under a CPT programme, it allows for more efficient use of collateral for
issuance where the size of the cover pool is restricted in programmes.
Bank of Queensland Limited (BOQ) issued the first sequential CPT covered bonds in Australia. A
particular aspect of the structure is that it allows for faster repayment of the bonds once anextension event had occurred. Once the first maturing bond has been extended and fully repaid,
the next due bond will immediately convert to pass-through, even if it has not reached its expectedmaturity date. BOQ’s programme is the only CPT structure issued in APAC so far. Outstanding
covered bond issuance in Asia is mainly soft bullet, however all multi-issuing programmes have theability to issue hard bullet covered bonds as well. Fitch expects that smaller banks are likely to give
CPT a closer look as covered bonds grow as a funding tool, as a means to diversify funding sources.
3.2.

Resolution and Risk of Bail-In

Some countries have a bank resolution regime, including the bail-in tool, which specifically outlines
what debt can be bailed in as part of the resolution process. For example, under Europe’s Bank
Recovery and Resolution Directive (BRRD), senior debt could be subject to bail-in while coveredbonds are exempt from it. In contrast, Singapore exempts both covered bonds and senior debt
from bail-in under its regime where contractual bail-in terms are not contemplated. Both coveredbonds and senior debt are exempt from bail-in, which means they both will rank pari-passu in a
resolution scenario. In most other jurisdictions, even if covered bonds have a preferential position
in resolution, the risk of enforcement of recourse to the cover pool may be possible if the
programme becomes under-collateralised. In our analysis we look at the risk of undercollateralisation of covered bonds and whether there are mechanisms in place to safeguard thecollateral so that it is sufficient in amount to meet the timely payment of covered bonds.
In general, the risk of under-collateralisation is minimised through legislative and programme
contractual-specific safeguards that provide either a mandatory amount of OC, limitations on lowquality assets, and specify maximum loan-to-value (LTV) for mortgage assets.
3.3.

Cover Pool Asset Segregation

Segregation of assets pledged as part of a cover pool can be effected through a transfer to an assetowning SPV acting as guarantor of the issued bank debt, or via a legal ring-fencing mechanism
which uses an asset register, or a transfer to a specialised covered bonds issuing subsidiary. Thissegregation from the remainder of an issuer’s balance sheet is a prerequisite for any payment tobe directed to covered bondholders and to rate a programme above the issuer’s senior unsecured
debt rating. Certain risks of set-off, commingling and claw-back can be addressed in either case via
specific legislation or through contractual obligations set in programme documentation. The
validity and enforceability of these features in mitigating leakage risk is generally confirmed
through a legal opinion.
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There is usually only one method of asset segregation in each country, as is the case in South Korea
which relies on legal ring-fencing mechanisms as outlined in the covered bond legislation.
However, in the case of Singapore, two types of segregation have been used. This is because bytransferring certain mortgage assets linked to funds from the Central Provident Fund (CPF) would
alter the ranking of proceeds to covered bond investors from the realisation of the secured
property on those loans.
The use of pension funds to purchase residential property is a feature unique to Singapore
compared with other covered bond markets that Fitch rates. The CPF board must give permission
for any resident individual to use the funds from their account for the purchase of a residential
property. Fitch’s understanding is that, as per CPF’s regulation, the funds used will rank first inpriority for repayment to CPF upon subsequent realisation of the mortgaged property. Despite this,
CPF’s ranking varies depending on the consent with banks that provide mortgage finance; that thebanks would have prior ranking as creditors ahead of CPF for the proceeds from the sale of themortgaged property. Without consent from CPF, we understand that any transfer of a linked
mortgage asset to a third party (including SPVs) may mean the ranking could revert to CPF first. As
consent has not been granted for CPF-linked mortgages used as cover assets currently, adeclaration of trust is used as a way of legally segregating these cover assets, without affecting the
ranking of covered bondholders who hold beneficial rights over those assets. Depending on the
programme in Singapore, the declaration of trust may be used alone for segregation or a
combination of both the SPV and declaration of trust mechanisms. We believe that both are equallyeffective methods of segregation.
3.4.

Cover Pool Asset Types

The types of assets eligible to serve as collateral for regulated covered bond programmes are often
set at the framework level, which is true for both South Korea and Singapore. Their respective
frameworks specify what is eligible as cover assets, but also outline any respective limits on thoseeligible assets – such as LTV limits on mortgage loans or limits on liquid assets included in the
programme. For programmes not regulated or where no eligible assets are specified in theframework, the cover assets will be defined in the programme’s contractual documents. Assets
included in cover pools analysed by Fitch in Asia thus far are residential mortgages. In Europe, we
also rate mortgage covered bonds secured by commercial real estate loans, and covered bonds
secured by public-sector assets.
Eligible Assets for Asia Covered Bond Programmes
AssetsCash

Singapore
Yes, limited to 15% asproportion of all coverassets (subject to
exceptions)Bank bills/certificates ofdeposit (maturity shorter No
than 100 days)

South Koreaa

South Koreab

Yes, limited to 10% of theYescover pool
Yes, limited to 10% of theNocover pool

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Yes, limited to 15% asGovernment
proportion of all coverbonds/notes/debentures assets (subject to
exceptions)
Mortgage backed
securities

No

Commercial mortgages

Yes, loan to value ratio
limited to 80%
No

Aircraft/shipping loans

No

Residential mortgages

Exposures to public sector
No
entities

Yes
Yes, limited to KHFC
issued mortgage bonds
and MBSYes, loan to value ratio
limited to less than 70%
No
Yes, loan to value ratio
limited to less than 70%
Yes

No

No
Yes, loan to value ratio
limited to less than 70%
No
No
No

a Korean Covered Bond Act

b Korean Housing Finance Corporation Act

Source: Fitch, Issuance documents

Table 12
In most covered bond programmes internationally, cover pools tend to have homogeneous assets,
although several frameworks allow mixed residential and commercial mortgage loans in the same
cover pool, as in Germany or Spain, or to mix mortgage and public-sector assets, as in France andSweden. This is also possible in South Korea as its framework lists multiple types of similar eligible
assets, but we think it is unlikely as those assets are refinanced through other forms of funding.
Meanwhile, the regulation in Singapore allows for the inclusion of mortgages on secured property
from outside of Singapore as cover assets. Fitch feels that this raises the potential for foreignexchange risks in cover pools to emerge, and which would need to be mitigated. At the time of thispublication, only Singapore-based assets are included in the cover pools of the three programmes
currently established.
3.5.

Privileged Swaps

Privileged derivatives are used in covered bond programmes to transform cash flows of assets andliabilities, and these are also deemed to form part of the cover pool. Unlike non-privileged swaps
which banks execute in the normal course of business, privileged derivatives are intended tosurvive the insolvency of the issuing bank and continue to provide hedging of the cover assets orthe covered bonds after the payment source has switched from the issuer to the cover pool.
Derivatives used for covered bonds can be a combination of interest-rate and currency swaps forcross-border issuance. On the cover pool, some programmes in the region use total return swaps
or a combination of basis and fixed-floating swaps to transform all asset cash flows and interest on
cash held into a specified rate plus a margin.
In certain countries with less developed capital/banking markets there is a greater risk ofgovernments imposing restrictions and capital controls around local currency being converted into
foreign currency. This can have an impact on the ability to repay investors located in othercountries. Covered bond derivatives have been used in South Korea to mitigate this potential risk.
Upon the imposition of capital controls, we understand from the programme documents that the
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currency conversion of the payment under the swap would occur offshore via an eligible
counterparty. This helps maintain the continuity of payments despite capital controls being inplace.
The extent of benefit afforded to these swap arrangements in our analysis depends on the
structure of the covered bond programme. CPT covered bonds are less affected by market-value
events on the assets as asset sales are not needed and may therefore be able to withstand higher
stresses. This allows for greater credit to these swap arrangements in respect to timely payment
compared with programmes that issue bullet bonds or have short extension periods of up to 12
months.
3.6.

Over-Collateralisation and Asset Valuation

OC between cover assets and covered bonds, which can be expressed as an asset percentage (AP),is the main source of credit enhancement. This means that the cover assets value exceeds thecovered bonds outstanding. Minimum OC for covered bond programmes may be stipulated ateither the framework level and/or at the programme level. Under the Covered Bond Act in South
Korea and the MAS regulation in Singapore, the minimum OC is 5% and 3%, respectively.
Mandatory regulatory OC used in our analysis would generally not be sufficient to support stresses
in high-rating scenarios, so it is usual to find programmes holding more OC to support these higher
rating levels.
Issuers are likely to maintain a certain level of OC at any time, although the valuation of the coverassets compared with the covered bonds can be conducted periodically, e.g. this can becontractually required on a quarterly basis in programmes or less often as prescribed by law. The
asset valuation method may be outlined in specific regulation or defined in the programme
documentation. In the case of South Korea and Singapore, while the regulations specify therequirement of asset valuation, the specific parameters and calculations are outlined in the
programme documentation.
The provisions included in programmes that we rate in the region limit the LTV that are given credit– in most cases this is 70% for South Korea and 80% for Singapore – and gives no credit to defaulted
assets. The asset-valuation calculation ensures that there are sufficient assets in the cover pool tosupport cash flows and cover maturity mismatches to pay covered bond obligations should thepayment source switch to the cover pool from the issuer. It is usual in programmes to stipulatethat a switch to the cover pool could occur where there are breaches in these calculations and ifthey remain unrectified. In some programmes where the payment source has switched to the coverpool, a breach on asset-sufficiency calculations could trigger a cross-acceleration requiring
repayment on all covered bonds on a pro-rata and parri passu basis.
3.7.

Demand Loan/Note Funding Excess OC

Among programmes issued under an SPV template, the demand loan feature (which can also be anote) is used mainly outside of Europe. It is seen in programmes from Australia, Canada, New
Zealand and Singapore, with the concept originating from Canada. The demand loan allows the
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issuer to vary the amount of voluntary OC in the programme over and above that required under
the asset-coverage test. In general, the repayment of the demand loan ranks ahead of coveredbond investors, and therefore cover assets secured by this demand loan will not be available forthe benefit of covered bond investors. Therefore, we do not rely on the proportion of OC fundedby the demand loan in our analysis.
In Fitch’s opinion, the demand-loan redemption can have an impact on the liquidity of a coveredbond programme when it needs it the most. In most cases the demand loans are repayable in kindwith mortgages upon a trigger of the mandatory repayment. Where the programme only foresees
the repayment of the demand loan in cash, Fitch believes this would limit the programme’s ability
to repay upcoming maturities, as it could necessitate further liquidation of cover assets after theenforcement of recourse to the cover pool has led to a switch from the issuer to the cover pool as
the source of payment.
3.8.

Liquidity Protection Mitigating Mismatches

The asset and liability mismatches (maturity, interest rate and currency) inherent in most coveredbond programmes mean that their documentation or applicable frameworks will contain features
to mitigate short-term liquidity risk and principal payment risk. For instance, a regulatory liquidity
provision may require issuers to hold on an ongoing basis, as part of the cover pool, cash or liquid
assets covering cash flow shortfalls scheduled over the next 180 days. Other protections can be in
the form of extendable maturities periods on bonds, allowing for a work-out period of up to 12
months (soft bullet bonds) following the maturity date. There could also be pre-maturity tests on
hard bullet bonds, which if breached (typically if the short-term rating of the issuer falls below acertain threshold) leads to the cash-collateralisation of upcoming maturities within a 12-month
period. The time given to liquidate assets where needed and the level of liquidity of the coverassets determines whether a programme can successfully overcome the asset and liability
mismatches.
Almost all programmes in Asia have robust liquidity-protection mechanisms in place. This allows
us to assign a Payment Continuity Uplift above the bank’s IDR up to six notches on hard and softbullet programmes secured by residential mortgages, and eight notches for CPT programmes
secured by residential mortgages.
Typically, public-sector assets are considered the most liquid, only needing up to a few months forliquidation, whereas residential and commercial mortgages are generally thought to be less liquid.
Invariably the liquidity of these assets is dependent on investors’ appetite for these assets. In our
analysis, we assume that part of the cover assets is sold to bridge the modelled gaps between theassets and liabilities. We assess a stressed market value for the cover assets, applying a higher
discount for pools of assets with adverse characteristics or to reflect the impact of large exposuresthat are unable to be readily absorbed by the market. Some jurisdictions make it possible for theasset-owning entity to repo cover assets directly to a central bank or to issue new covered bondsthat can equally be repo’ed to obtain short-term liquidity for an upcoming maturity.

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Almost all frameworks allow for liquid assets up to a certain percentage of the programme total
assets or bond outstanding, for example 5%-15% of the cover pool or as part of a separate reserve.
These liquid assets are available to mitigate any payment interruption that could result fromdefault of the issuer or servicer on the assets.
3.9.

Ongoing Supervision and Administration

Ongoing monitoring on covered bond programmes is performed by a cover asset monitor, an
independent third party appointed in accordance with the framework or programme documents.
Their responsibilities can include ensuring that the covered bond programme is being operated ina manner that is in accordance with the programme documents, error-checking of calculations
required to be performed by the issuer and confirming that the issuer is in compliance with therequirements of the regulatory framework. The cover asset monitor provides investors with anadditional layer of protection, in addition to the regulator’s oversight of the issuer.
Covered bondholders’ claims against the cover assets would be handled by a third-party manager
in the event that recourse against the cover pool is enforced. The framework and/or the
programme documents will outline who is responsible and the requirements for the managementof the cover pool. In our analysis, we take into consideration the framework or contractual clauses
governing the appointment of a substitute manager, any potential conflict of interest (where an
administrator in a bankruptcy takes care of both secured and unsecured creditors), the manager’s
responsibilities in the servicing and liquidation of the cover assets to meet payments due, and any
further protection due to oversight or potential support for regulated covered bonds. In addition
to the theoretical provisions that allow an alternative manager to step in, we take into
consideration the availability of suitable alternative management parties in a given market.
In countries such as Germany, Ireland and South Korea, among others, the legislative framework isvery prescriptive on the appointment and duties of a special programme administrator. Most
frameworks, however, are less prescriptive on this topic; and as a result, it is generally left to either
the interpretation of the regulations and/or reliance on contractual obligations in the underlying
programme documents, as is the case in Singapore. While the transfer to an administrator ispractically untested, Fitch believes the sooner an administrator can act, gain access to required
systems and manage the cover assets, the better the outcome will be for investors.

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VII.

The Ratings Framework for Securitisation (Moody’s)
The credit risk in Asian emerging market securitisation transactions depends on multiple factors,
including the legal and regulatory requirements, the quality of the underlying assets, the strengthof third-party service providers, structural features, currency and interest rate issues and politicaland economic factors. This report highlights some of the key factors that determine credit risk insecuritisation transactions in China specifically and other emerging markets in Asia generally. 22
•

•

•

•

•

•

The legal and regulatory situation in different countries influences credit risk. One of themost fundamental legal issues in respect of the level of credit risk posed by structured
finance transactions is whether the transactions have sufficient bankruptcy remotenessprotection. In Asian emerging markets, laws and regulations can vary considerably.
Underlying assets are key drivers of credit risk. The probability of default on the assets, thechance of recovery in the event of default and the uncertainties associated with thesedefault probabilities and recoveries influence the credit risk posed by transactions.
Operational and counterparty risk influence credit quality. In securitisation transactions,issuers retain third party servicers to administer day-to-day operations. Transactions are
therefore subject to the performance of such third parties. In addition, commingling and setoff risks may arise due to the presence of the counterparty risk.
The structure of transactions affects the risk profile of issued notes. One key structuralelement is the payment waterfall. The degree of protection afforded to investors fromdifferent types of payment waterfalls can vary drastically.
Currency and interest rate risks apply to securitisation transactions. In particular, the depthof the foreign exchange market and the volatility of exchange rate movements can influencecredit risk in emerging market securitisation transactions. Furthermore, securitisationtransactions might have interest rate mismatches because of the use of different interest
rate benchmarks.
Political and economic factors may pose credit risks. Risks arising from political and economic
factors can materialise either from within a particular country or externally.

1. Legal and Regulatory Situation Influences Credit Risk
The legal and regulatory situation in specific emerging markets countries influences the level ofcredit risks posed by securitisation transactions.
One of the most fundamental legal issues in respect of the level of credit risk posed by structured
finance transactions is whether the transactions have sufficient bankruptcy remoteness protection,
including the establishment of a bankruptcy remote special purpose vehicle and protection fromthe potential bankruptcy of the transaction sponsors or sellers.
Asset ring-fencing, asset transfer and security perfection are important because transactions mustensure a well-established claim on the collateral, as well as timely enforcement of the collateral

22 This report focuses on securitisation transactions other than transactions categorised as structured credits.

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that is not subject to a delay because of the insolvency or bankruptcy proceedings of any
transaction parties.
Factors that can reduce the likelihood of an issuer becoming insolvent or bankrupt are extremely
important in respect of the credit risk posed by structured finance transactions. Moreover, legal
precedents showing the enforceability and applicability of the bankruptcy remoteness of theissuing vehicle used in securitisations can enhance understanding of these risks. However, in Asianemerging markets, laws and regulations can vary considerably, even across different jurisdictions
within the same country.
In China, securitisations issued by banks and financial institutions regulated by the People’s Bankof China (PBOC) and the China Banking and Insurance Regulatory Commission (CBIRC) under theCredit Asset Securitisation (CAS) program in the interbank bond market must have a special
purpose trust structure. The use of a special purpose trust incorporated under the Trust Law
provides strong protection for the ring-fencing of the entrusted assets from the bankruptcy estateof a defaulted originator or issuer. The CAS framework is regulated by the PBOC and the CBIRC. 23
Chinese corporations, including financial institutions registered with the Ministry of Commerce,
can also issue securitisations in the interbank bond market through the Asset Backed Notes (ABN)
program, which is regulated by the National Association of Financial Market Institutional Investors.
Similar to deals issued under the CAS program, special purpose trust structure has been used insome of the ABN deals.
However, asset securitisations in China can also be issued outside of the interbank bond market
through the Asset Backed Specific Plan (ABSP) framework, which the China Securities Regulatory
Commission regulates. 24 The ABSP is based on an assignment concept between a principal andagent. However, questions remain over how the assets can be ring-fenced. For example, it isunclear how the assets can be separated in the event of the bankruptcy of the project manager.
On the regulatory side, factors that influence credit risk include whether prior regulatory approval
for issuance, asset transfer and security perfection is required, or whether restrictions are present
that could affect the ability of trustees or investors to possess, manage or sell the securitised assets.
If such regulatory restrictions are evident, the level of credit risk may depend on how thetransaction addresses them without compromising the interests of investors.
In China, one example is foreign exchange control, which the State Administration of Foreign
Exchange regulates. For transactions involving the conversion and transfer of renminbi into foreign
currencies to offshore investors, prior approval from the State Administration of Foreign Exchange

23 See Further Direction Needed on Bankruptcy Ring-Fencing in China Securitisation Transactions, 19 November 2014.

24 See Further Direction Needed on Bankruptcy Ring-Fencing in China Securitisation Transactions, 19 November 2014.

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reduces credit risks. Without such approval, there can be no guarantee that the free cross-border
flow of principal and interest can be safeguarded for offshore investors, which is credit negative.
2. Underlying Assets are Key Drivers of Credit Risks
The credit quality of the underlying assets is the most important driver of the credit quality of
securitisation notes. The probability of default on the assets, the chance of recovery in the eventof default and the uncertainties associated with these default probabilities and recoveries
influence the credit risk posed by transactions.
Macroeconomic conditions and market dynamics, as well as the business strategies and business
operations of the sponsor, affect the probability of default and the chance of recovery.
The lack of a well-tested, transparent bankruptcy and loan workout process may also complicate
loan recoveries.
The historical performance of the assets, in particular performance during a period of economic
distress, may provide some indications of how they will perform in future. The availability ofhistorical data and the quality and integrity of the data are therefore important determinants ofthe credit quality of transactions. In Asian emerging markets, data may have shortcomings that canpose credit risks in securitisation transactions, including:
•
•
•

•

•

Comprehensive historical data on defaults, prepayments and recoveries on the underlying
assets may not be available. For example, there may be no static pool data.
The data that originators provide might cover only a relative short time, because of a short
operating history or a change in information technology systems.
The available data period coincides with strong economic growth. As a result, it does notprovide insight into any potential performance deterioration by the relevant receivables
during a period of economic distress. In China, for example, a benign macroeconomic
environment has prevailed since the country adopted its open-door policy a few decadesago.
Even if data on the underlying assets is available, audit procedures might not be sufficient toensure its accuracy and reliability. This factor is particularly important for small originatorsthat might not have robust information technology systems and audit procedures.
Market-wide data on the region, such as a property price information, may not be available.

When data in a particular market is not available, the performance of similar assets in otherdeveloped and emerging markets can be a useful guide to how assets may perform in a distressedsituation. This could mean, for example, that default forecasts for Chinese auto asset-backed
securities (ABS) could be higher than historical default rates.
3. Operational and Counterparty Risk Influence Credit Quality
In securitisation transactions, the issuer often has no employees or facilities of its own andtherefore must retain a third party as the servicer to administer the day-to-day operations of the
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transaction. 25 As a result of this arrangement, the strength of a securitisation depends not only on
the creditworthiness of the underlying pool of assets, but also on the performance of all third
parties in the transaction, such as the servicer, cash manager and trustee. A number of transaction
parties may not be rated locally or internationally. A disruption in the performance of any of theseparties can hurt the transaction.
For example, the bankruptcy of the servicer could lead to a commingling loss if the servicer has nottransferred the collections from the securitisation pool to the transaction trust account. In
addition, a servicing disruption might weaken collection activities, leading to increased
delinquencies, lower recoveries and ultimately, higher losses on the collateral in the securitisedpool.
In Asian emerging markets, operational and counterparty risks often present weaknesses instructured finance transactions. For example, there may be no back-up servicing arrangement or
the arrangement is untested. In China, the lack of replacement servicers and the risk this would
pose if there was a disruption in servicing, is heightened by the diversified nature of the collateralpools that characterise many outstanding auto loan ABS transactions.
Some transactions lack upfront, fully-funded liquidity protection, such as a liquidity reserve or aliquidity facility. This may increase the risk of a temporary cash disruption in the case of a disruption
in servicing, or the bankruptcy of any other counterparty in the transaction, with some potential
adverse consequences for the rated notes. As a result, the credit quality of the original servicer, its
parent and parental support is very important in respect of the credit quality of the transaction.
Set-off risk will arise if the originator owes reciprocal payment obligations to the underlying
obligors and there is no perfection of loan transfer against the obligor. If the borrower can offset
the loan it owes to the originator against the obligations due from the originator, set-off risks could
be present in the transaction. Deposit-taking originators, such as banks and deposit-taking
companies, are prone to such risk. Deposit insurance schemes can mitigate set-off risk, in countries
where such schemes exist.
4. Structure and Credit Enhancement Affect Risk
The structure of a transaction has a significant effect on the risk profile of the issued notes. One
key structural element is the allocation of cash flow in the transaction and the priority of payments,
otherwise known as the payment waterfall. The degree of protection afforded to investors fromdifferent payment waterfalls can vary drastically.
Auto loan ABS transactions in China have different types of payment waterfalls, such as:

25 These operations include routine asset portfolio administration duties, such as determining interest rates on assets, managing

the flow of payments from borrowers to issuers and collecting late payments. Other responsibilities might include advancing
funds to provide liquidity and temporarily reinvesting idle cash.

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••full turbo payments in which the transactions will use all principal collections and any excessinterest collections for early repayment of the rated notes in a sequential manner, and until
the transaction fully repays each class of notes 26
excess spread to cover principal loss caused by underlying defaults. 27

Korean credit card ABS transactions provide another example of different waterfall structures. The
issuer can use collections from the underlying securitisation pool to purchase new receivables fromthe originator during the revolving period. In such cases, the early amortisation triggers in revolving
deals are important, because different trigger levels could have significantly different effects on
the credit profile of transactions.
Other structural features — including portfolio substitution, rating trigger components of internal
credit enhancement (such as the reserve account), excess spread and over-collateralisation — arealso crucial factors that influence credit risk.
5. Currency and Interest Rate Risks Apply to Securitisation Transactions
The depth of the foreign exchange market and the volatility of exchange rate movements caninfluence credit risk in emerging market securitisation transactions, because trading in thecurrencies of emerging market economies tends to be illiquid and volatile. The regulatory approvalrequirements for currency conversions and transfers can also influence credit risks. The hedging ofcurrency mismatches is therefore important in cross-border securitisations.
Furthermore, securitisation transactions might have interest rate mismatches because of the useof different interest rate benchmarks or different interest rate reset dates.
In some Chinese securitisation transactions, the underlying loans pay fixed-rate interest to theoriginator. However, the interest rate on some classes of notes might be linked to the benchmark
deposit rate that the PBOC sets and which changes in accordance with changes in monetary policy.
If deregulation of interest rates occurs in China, which would allow market forces to determine
deposit rates, such a mismatch could be amplified.
In addition, the swaps market of an emerging market economy might not be liquid or deep
compared with more mature markets. As a result, there could be a risk for the originator or issuer
in finding replacement swap providers which, in turn, may increase the degree to which the credit
quality of the transaction depends on the swap provider.
6. Political and Economic Factors May Pose Credit Risks
Risks arising from political, institutional, financial and economic factors either within a particularcountry or externally, can influence the credit risk of securitisation transactions. These factors
26 See Chinese Auto ABS: Not All Structures Are Created Equal, 4 December 2014.

27 See Chinese and Indian Auto ABS: Two Very Different Markets When it Comes to Forms of Credit Enhancement, 12 August 2015.

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include political instability, conflict risks and regulatory and legal uncertainty over, for example,
the enforceability of contracts.
Other country risks include the risk of government intervention, such as the expropriation or
nationalisation of local assets, as well as the risk of systemic economic disruption, severe financial
instability, currency redenomination under adverse circumstances and natural disasters.
We take account of country risks in our local currency country risk ceiling (LCC) and foreign currency
country risk ceiling (FCC). In the case of China, our LCC and FCC are both Aa3.
The LCC captures non-diversifiable country risks, which affect all issuers and assets in a country.
The FCC signifies the risk that a defaulting government would adopt a moratorium on the foreign
currency debt repayments of domestic issuers. Moratorium restrictions refer to two separate risks:
restriction on moving foreign exchange offshore (transfer risk) and restrictions on freely
converting local currency to foreign currency (convertibility risk). Korean ABS transactions usually
have a cross-currency swap with an offshore swap provider, which covers the moratorium risk.
Under such an arrangement, the swap provider will continue to swap the local currency into foreign
currency, notwithstanding the imposition of a moratorium.

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VIII.

Taxation Issues in Securitisation (Ernst & Young)
Executive Summary
Tax neutrality and tax certainty are needed to assist the growth of the Asian securitisation market,
which has recently picked up especially on domestic issuances. The market would likely further
grow where securitisation transactions can be more accurately priced and rated, thus contributing
to the development of an efficient securitisation market. Tax neutrality should help in removing
the obstacles of additional or accelerated taxation with the result that, both, participants andrevenue authorities are neither better nor worse off from a tax perspective. Examples of thesetypes of laws can be found in certain Asian countries, with India joining the club of Malaysia andThailand. Additionally, tax certainty for participants is necessary for greater confidence in market
outcomes. These objectives (i.e. tax neutrality and tax certainty) may be achieved throughcomprehensive tax rules or, alternatively, through the issuance of specific tax guidance by therevenue authorities.

1. Taxation of Securitisation Arrangements
To support the growth of the Asian securitisation market, tax policy for securitisation transactions
should be set with the primary objective of achieving tax neutrality, irrespective of the nature of
the taxpayer. Tax neutrality means that the same amount of tax should be paid at the same timein a securitisation structure as it would otherwise have been paid had the securitisation transaction
not been entered into. Additional tax costs in a securitisation structure are a significant economic
disincentive for a securitisation market.
In addition, taxpayers (i.e. the different participants in a securitisation transaction) should havecertainty for the amount and timing of the tax that needs to be paid in a securitisation transaction.
Both tax neutrality and tax certainty need to be considered in both wholly domestic securitisationtransactions and securitisation transactions involving cross border payments that can lead to
additional layers of complexity.
This section of the report considers the tax policy objectives (neutrality and certainty) for
securitisation transactions, and the current status of taxation of such transactions in selectjurisdictions.
2. Tax Policy Objectives (Neutrality and Certainty)
Under a securitisation arrangement, there are several areas where tax consequences can typicallyvary when compared to a scenario where the underlying assets have not been securitised. The tax
policy for securitisation would typically need to consider the following key aspects. These include:••••

The sale of the assets to the securitisation vehicle (whether it is a true sale or otherwise)
Income from the assets (e.g. interest)
Bad debts
The tax treatment of the securitisation vehicle and the issuance of notes to investors
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••Payments to investors (e.g. coupons)
Transaction taxes (e.g. stamp duty, VAT / GST)Specific tax rules that deal with securitisation transactions can achieve tax neutrality by alleviating
unintended tax consequences and inefficiencies such as tax leakage e.g. providing clarity regarding
the timing of taxation, nature of income from underlying instruments, according pass throughstatus wherever necessary etc. This approach should help eliminate unexpected tax consequences
which can result in mispricing securitisation transactions, requirements for complex tax
indemnities and/or warranties and difficulties for ratings agencies to accurately rate the securitised
assets and securitisation vehicle.
In the absence of specific rules that explicitly address the above issues, there exist uncertainties
for taxpayers which are impediments to the growth of the securitisation market. An alternative to
specific rules is the issuance of guidance on the taxation of securitisation transactions. This
alternative approach will allow participants in the securitisation market to appropriately plan for
the tax consequences of the securitisation transaction which will allow efficient pricing and ratingof the transaction.
Ultimately, these rules should result in the same tax outcome which would otherwise arise inrespect of the securitised assets (i.e. they should be tax neutral). We consider this objective in lightof the origination, life and termination of a securitisation transaction.

Figure 14
3. The Origination of the Securitisation Transaction
On origination, the securitised assets are transferred to a special purpose vehicle. The transfer ofthe securitised assets may give rise to a taxable profit or loss.
In Singapore, typically in the banking context, where the securitised assets are transferred to a
special purpose vehicle (“SPV”) at book value, there will be no accounting gain/ loss and therefore,
no taxable gain/ loss event arises on such transfer. In Malaysia, asset backed securitisation
regulations provide originators of securitisation transaction a specific set of rules that deal with thetaxation of gains and losses from the disposal of trade receivables and stock in trade. Broadly, thetaxation of such gains or losses is spread across the period of the securitisation transaction. This
treatment prevents upfront tax costs that may otherwise arise on the origination of the
securitisation transaction. Both of the mentioned examples are that of tax neutrality on originationof the securitisation transaction.
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In addition to the above, the indirect and transaction tax consequences (including GST, VAT, stampduty) of the origination of securitisation transactions need to be considered and addressed. For
instance, transfers of mortgage backed securities can have a complex interaction with existing
stamp duty laws. It is foreseeable that the transfer of mortgages over land could give rise to stamp
duty costs which, in a securitisation transaction, can be difficult and complex (if not impossible) to
calculate due to the large number of mortgages in a single transaction. Such laws should be
updated to take into consideration the nature of securitisation transactions such that thecomplexity and uncertainty is eliminated. This can be achieved through exemptions and/or
clarifications on the application of such laws. For instance, under the Singapore GST legislation, theassignment of receivables to an SPV in Singapore is an exempt supply for GST purposes. The
assignment of receivables to a foreign SPV is a zero-rated supply (GST at 0%). In either case, anassignment of receivables from a Singapore originator to the SPV should not be subject toSingapore GST. However, the exempt or zero-rated GST treatment could impact the input tax
recovery of the Singapore originator if it is GST-registered. Notwithstanding the exemption for GST,
the remission of stamp duties on the instrument relating to transfer of assets to the Approved
Special Purpose Vehicle (“ASPV”) for approved asset securitisation transactions will lapse after 31
December 2018. Rest of the ASPV scheme continues and was extended till 31 Dec 2023 according
to the Singapore Budget 2018.
4. The Life of the Securitisation Transaction
The taxation of income and expenses during the life of a securitisation transaction can depend on
the tax residency of the special purpose vehicle, type of vehicle chosen and the relevant taxation
regime. It is to be noted that special purpose vehicles in securitisation transactions are intended to
be profit neutral (income matches expenses). Accordingly, tax laws should provide symmetricaltreatment between the income and expenses of the special purpose vehicle. That is, either bothare taxable / deductible or both are exempt. In Malaysia, regulations exist for the taxation ofincome and expenses for the special purpose vehicles. Namely, gross income includes income fromall sources and any deductible expenses incurred by the special purpose vehicle for acquiring tradereceivables or stock in trade are spread across the period of the securitisation transaction. These
regulations match the timing of the income or gains of the originator with the expenses of thespecial purpose vehicle.
In Thailand, a special purpose vehicle is granted an exemption from tax on income derived from asecuritisation transaction which has the necessary approvals. Additionally, the operation andallocation of cash inflow for the settlement of debts and expenses must follow the approved plan.
The added complexity of cross border securitisation transactions also needs to be considered.
During the life of a securitisation transaction, it is possible that the originator, securitisation vehicle,
investor and debtor under a securitisation transaction are tax residents in different jurisdictions. In
such scenarios, withholding taxes, permanent establishment issues and tax treaty claims are
relevant and can be complex. Whilst appropriate tax planning may reduce tax leakage in thesecircumstances, rules that support tax neutrality and tax certainty can provide participants’
increased confidence to enter into securitisation transactions. For example, where a collective
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investment vehicle is used as the securitisation vehicle, withholding tax exemptions on relevantinterest payments and distributions will minimise complexities arising from the interpretation oftax treaties. In this regard, Singapore currently has a withholding tax exemption for payments onover the counter financial derivatives in connection with an asset securitisation transaction(subject to meeting the conditions of being an approved securitisation company). Exemptions suchas these remove the economic disincentive of additional tax costs in a securitisation market.
A specific tax regime was introduced in the UK in 2007 in order to simplify the taxation of
securitisation companies. Under the specified UK tax regime, a company that meets the definitionof a securitisation company is in summary taxed on the small amount of “retained profit” rather
than on the profit shown in its accounts. - in other words, the standard rules on taxable income
and deductible expenses starting from the financial statements of the company do not apply(securitisation vehicles were previously taxed in this manner, and this led to complexities such as
the SPV could have tax liabilities (based on its accounts) that exceed its cash surplus available tosettle such liability).
The “retained profit” can be an amount or margin chosen by the directors of that company,
provided that it is clearly identified in the securitisation documents, such as in the “priority of
payments schedule”. Eligible securitisation companies that meet the conditions are charged
corporation tax on their retained profit, that being the amount left after the operation of thepayments waterfall (with adjustments for certain dividends received and paid by the SPV). Wherean SPV does not have available funds equal to its retained profit, corporation tax will be calculatedon the amount of profit actually retained.
5. The Termination of the Securitisation Transaction
On termination of the securitisation transaction, the securitised assets are transferred back to theoriginator (to the extent they still exist). In addition, any profits in the special purpose vehicle are
required to be dealt with. The taxation of these events on termination should be considered andaddressed within the context of tax neutrality and tax certainty.
6. Current Taxation of Securitisation Transactions – China
In 2006, a tax circular was released which provides China’s position on business tax, stamp tax andcorporate income tax on the transferred assets, during the process of credit asset securitisation
under the trust method.
The circular provides exemptions from stamp duty when the relevant assets are being transferredto the securitisation trust. This is an example of a tax neutral outcome as there is no additional
stamp duty burden for the participants in the securitisation transaction.
The circular confirms that originators of securitisation transactions are subject to enterpriseincome tax laws on the gains and losses made on the transfer of the assets to the securitisation
trust.

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The securitisation trust is exempt from enterprise income tax on gains that it distributes to theinvestors in the same year the amounts are derived. The securitisation trust is however, subject toenterprise income tax on undistributed amounts. Once these amounts are distributed, institutional
investors will benefit from the current policies on after-tax proceeds.
The tax treatment of institutional investors depends on the nature of the gain. Previously untaxed
amounts received from the securitisation trust are subject to enterprise income tax on an accruals
basis. As stated above, such institutional investors will benefit from the current policies on aftertax proceeds if enterprise income tax was previously paid by the securitisation trust. In addition,
institutional investors will be subject to the enterprise income tax on trading gains and losses onan accruals basis.
7. Current Taxation of Securitisation Transactions – India
A specific tax regime in relation to securitisation transactions was introduced in India in 2017. This
regime is applicable for instruments issued in relation to securitisation of both, standard and nonperforming assets. The securitisation trust is exempt from income-tax on the income earned by it,
if any, and the same is taxable in the hands of the investors as if the investments by the
securitisation trust has been directly made by the investor.
The law also requires that the characterisation of the income ought to be determined first in thehands of the securitisation trust itself. Accordingly, each investor is required to analyse theimplications in its hands in the like and same manner as that of the securitisation trust. In thisregard, the securitisation trust is required to report the amount received by it in relation to theunderlying loans to the investors and the Indian tax authorities in a specified manner which
includes details of income to be disclosed under the specific heads of income.
No withholding is required to be made at the time of payment to the securitisation trust, however,the securitisation trust is required to withhold tax while making the distributions or crediting theaccount of the investors, where applicable.
Further, transfer of loans in favour of asset reconstruction companies for the purpose of asset
reconstruction/ securitisation is specifically exempt from stamp duty.
On the other hand, there is no specific income-tax exemption for the banks/ financial institutionstransferring the loans to the asset reconstruction companies/ securitisation trust. Normal incometax principles apply to these institutions on transferring of the loans.

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IX.

The Regulatory Toolbox (Clifford Chance)
As the global financial crisis showed in the US and Europe, there are risks and dangers involved infinancial system which becomes too interconnected and in which there are overconcentrations ofrisk. As a tool which, if not used properly, could contribute to this interconnected andoverconcentration of risk, Securitisation needs to be regulated. The form that regulation takes
does, however, need to strike a delicate balance. It should not be product specific, preferring one
particular financial product to another, but rather be focussed on the activities – does a particularuse of securitisation result in a possible negative effect. This chapter outlines a number ofregulatory tools which are used by regulators to help establish, foster and maintain an
economically and socially beneficial securitisation market. The next chapter then explores how
these tools are being employed in Asia to ensure securitisation markets continue to develop in astable and robust manner before the following chapter considers how the regulations adopted in
the US and Europe effect the way securitisation transactions are structured in Asia.
The regulatory tools which regulators adopt typically target either particular entities or particular
activities:••

entity focused rules – whereby certain users of securitisation are regulated; andactivity focused rules – whereby certain features which might be present in securitisation
are regulated.

1. Entity Focused Regulation
As banks and other financial markets participants are likely to be significant users of securitisation
technology it is important to consider what toolbox of regulatory options they could be constrained
by. In the context of securitisation, it is banks and financial markets participants which are subject
to entity focussed securitisation regulation.
Entity-focussed regulation generally falls into the following categories.
Capital Requirements
Capital requirements are designed to ensure that entities undertaking bank-like activity, such as
leverage or maturity transformation, hold a sufficient amount of capital in order to mitigate thenegative effect of losses. In general, the riskier a financial asset, the greater the capital which needs
to be held against it. Capital requirements seek to make riskier positions more expensive for
entities to hold and less risky positions cheaper for entities to hold.
This, however, leads to the complex question of how the "riskiness" of a securitisation position isdetermined and how the model on which that riskiness is assessed is built.

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Large Exposures
Large exposure rules seek to reduce the overall reliance of an entity on repayments from a single
source or group of interconnected sources. The rules are often expressed by reference to an entity
being able to have an exposure to a single debtor (or group of connected debtors) no greater thana certain percentage of its capital.
The idea behind the enforcement of a large exposure rule is to minimise the risk of one insolvent
entity having a domino effect and resulting in the insolvency of a chain of entities. It is a rather
blunt tool for ensuring there is a minimum level of diversity in the loans or investments made byan entity to which the rules apply.
Large exposure rules should, however, take into account specific features or certain markets orbusiness models of particular financial markets participants. For instance, a specialised lender in anaturally concentrated market might struggle to operate within the boundaries of low-set large
exposure thresholds but could provide a valuable alternative for borrowers to other, more general,providers of finance. In such an instance, such specialist lenders could help increase financial
stability rather than hinder it.
Liquidity Ratios
Basel III introduced the liquidity coverage ratio and net stable funding ratio. Rather than looking
at an entity's overall assets compared to its liabilities, these ratios are designed to ensure that, on
a day-to-day basis, an entity has a ready supply of cash or other liquid assets sufficient to cover its
expected outflows. Liquidity ratios help reduce the overall level of maturity transformation within
the financial system.
"Maturity transformation" – this is the process by which a bank or other market participant incurs
a short-term liability (for instance by taking a deposit from a customer which is repayable on
demand) and then generating a long-term asset (for instance granting a loan for the amount of thedeposit which is repayable in a number of years). On the one hand the bank's assets match its
liabilities in value terms, but if the customer comes to withdraw the deposit, the bank would haveno cash available as it is not due the money back from its borrower for a number of years.
For instance, the liquidity coverage ratio requires banks to hold liquidity assets against expected
outflows over the following 30-day period.
Key to the operation of a liquidity ratio is the assets which a financial institution can identify as
being "liquid". In principle, cash or a security which can readily be sold to generate cash is asensible test, however, in practice, whether or not a security can readily be sold to generate cash
is a difficult question. To what extent must there be an active secondary market for that security?
What is the historic performance of that, or similar, securities? Does that security have a credit
rating? Are there any types of securities which should be excluded even if they have a rating?
These questions lead to difficult decisions for regulators, who risk creating bubbles in certain
securities by allowing them to be included in such ratios to the exclusion of other securities.

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Leverage Ratio
A leverage ratio essentially limits the overall level of an entity's exposures compared to its capital
to be under a particular percentage. This helps limit the build-up of leverage.
However, as riskier exposures carry higher returns, in isolation, a leverage ratio encourage entities
to invest in riskier assets in order to generate higher returns on the limited level of exposures they
can hold. For this reason, regulators are often keen to stress that a leverage ratio should only everbe one of a number of measures used to reduce risk.
2. Securitisation Focused Regulation
Regulation focussing on the activities which are securitisation-like in nature can be targeted,ensuring the types of use of securitisation which led to increases in systemic risk and risk
concentration within the financial system in the lead up to the global finance crisis are less likely
to occur.
There are a number of ways securitisation-like activities can be regulated – most such ways look at
the features of securitisation transactions which are understood to have increased systemic risk
and limit the use of those features.
Rating Agencies
A number of approaches taken by regulators to regulating ratings agencies are as follows:•••

Conflicts of interest – where, in the context of a particular transaction, the issuer/arranger(rather than an investor) is paying the rating agencies' fees, regulation can be used to ensurethat there are internal procedures in place at rating agencies requiring the individuals who
agree and negotiate fee arrangements with issuers/arrangers are not also the same
individuals who analyse the transaction and provide the rating.
Multiple rating agencies – requiring a securitisation issuance to be rated by multiple rating
agencies means that additional analysis and censure is given to the structure in question.
Barriers to entry/alternative rating agencies – in order to encourage competition and newer
entrants, securitisation issuers/arrangers could be required, when appointing a rating
agency, to consider appointing other rating agencies (both large and small) which are able
to rate the transaction, not necessarily just a rating agency which they have worked with
before.

Ratings are perceived by investors as important benchmarks as to the quality of a product andrating agency-based regulation is a method of ensuring that rated securitisation transactions haveconsistent standards applied to them.
Investor Diligence
Regulators can impose requirements on certain investors in securitisation transactions to ensure
they undertake certain minimum levels of diligence themselves.
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Such regulations generally require investors to maintain records to show they have considered a
range of risk related issues. For instance:
•
•
•
•
•

the risk characteristics of the security being issued under the securitisation;
the risk characteristics of the exposures underlying the securitisation (e.g., the residential
mortgages, trade receivables, auto-loans or other assets);the reputation and loss experience of earlier securitisations of the particular originator,
arranger and asset class;the methodologies and concepts on which the underlying exposures have been valued; andstructural features of the securitisation, such as the waterfall, trigger events, credit
enhancement, liquidity enhancement and the point when an underlying asset is considered
to be defaulted.

In practice many of the investors to which these rules apply do not consider them particularly
onerous as they already have procedures in place to ensure their credit assessment process isrobust and, in many cases, already goes beyond the minimum required by the regulations.
Risk Retention
Risk retention rules have been in place in Europe for a number of years and are currently being
implemented in the US. The essence of such rules is to align the interests of a person who is doing
the securitisation (e.g., an originator or arranger) with the investors in order to provide comfort to
the investors that the originator or arranger has a vested interest in ensuring the securitisation andthe underlying assets perform as expected. A particular business model which operated prior to
the global financial crisis was an "originate-to-distribute" model where an originator advancedloans to borrowers with the intention of fully securitising those loans whereby investors would
take all the risk in those loans following the securitisation, leaving the originator with no risk. In
such an instance there was no incentive on the originator to ensure the credit policies used tooriginate the loans were robust enough to provide loans of the quality the investors were
expecting.
The way alignment of interests between and originator or arranger and an investor is achieved isthrough ensuring the originator or arranger continues to be exposed to the credit risk of theunderlying asset – the present rules, applicable in various jurisdictions, generally provide that theoriginator or arranger should retain a 5% interest in the securitisation – i.e., if there are defaults inthe pool, the originator or arranger must share at least 5% of the loss.

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Reducing Complexity
An initiative currently being taken forward and implemented by European authorities involves
looking at the complexity of a securitisation transaction and, if the securitisation is sufficiently
simple, transparent and standardised (also called simple, transparent and comparable in Basellevel documents), allowing those with exposures or interests in the securitisation to be subject tocapital rules and regulation more favourable than they would be were the securitisation classified
as more complex.
The features which regulators might consider as being present in a simple, transparent andstandardised securitisation include matters such as the following:
•
•

•
•
•
•
•
•
•
•

the securitisation does not have any underlying exposures which are themselves
securitisation positions;the eligibility criteria for the securitisation's underlying assets should be predetermined andclearly defined and there is no element of active portfolio management on a discretionary
basis;
the securitisation involves a "true sale" of the underlying assets and should not include
severe "claw-back" risks;
the underlying assets should be homogenous in terms of their asset type and currency;
the underlying assets should be performing;
the securitisation should include insolvency related triggers with regard to the originator andservicer;the securitisation should include triggers related to the level of defaults experienced by theunderlying assets;
the servicer or administrator of a securitisation should be able to demonstrate expertise inservicing or administering the particular type of underlying asset;
including a minimum level of disclosure and information in the prospectus applicable to thesecuritisation; andwhere legally possible, ensuring investors have access to all underlying transaction
documents.

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"true sale" – an expression used in the context of a transfer of assets (whether residential
mortgages, corporate loans, trade receivables or otherwise) by an originator to an SPV whichmeans that the transfer will be construed as a sale and recognised as such by all third parties,
including an insolvency official of the originator. If an originator has properly transferred and soldthe assets then they will not form part of its insolvency estate upon the originator's bankruptcy.
"claw-back" – an expression which generally means upon the insolvency of an originator thatoriginator's insolvency official, or any of its creditors, can argue that assets it has sold were notactually sold and should, instead, be brought back into that originator's insolvent estate. For
instance, in many jurisdictions if the assets were sold at an undervalue or were sold with theintention of preferring a particular creditor of the originator, they can be "clawed-back" and will
form part of the originator's insolvency estate and be available for distribution to the originator's
creditors.
The scope and consequences of a securitisation constituting a simple, transparent andstandardised securitisation do need to be carefully considered. For instance, if a securitisation
does not meet the criteria it does not necessarily mean it is a bad securitisation – the regulators
should not (and, in opinions and reports published in this context, are clear that they are notseeking) to prohibit or stigmatise securitisations which do not meet these criteria, but rather allow
simple, transparent and standardised securitisations to benefit from more favourable regulatory
treatment.
3. Definitional Issues
Trying to crystallise in words the nature of a securitisation has proved difficult for both regulatorsand market participants who believe certain transaction should or should not fall within thatdefinition. The Basel II definition is, for instance, both over and under inclusive in the types oftransaction which it applies to. For examples, layered corporate debt of an operating company ina leveraged financing can constitute a "securitisation" where a single class of debt serviced by aring-fenced portfolio of assets may not.
Basel II defines a traditional "securitisation" as "…a structure where the cash flow from anunderlying pool of exposures is used to service at least two different stratified risk positions or
tranches reflecting different degrees of credit risk. Payments to the investors depend upon theperformance of the specified underlying exposures, as opposed to being derived from an obligationof the entity originating those exposures. The stratified/tranched structures that characterise
securitisations differ from ordinary senior/subordinated debt instruments in that juniorsecuritisation tranches can absorb losses without interrupting contractual payments to more seniortranches, whereas subordination in a senior/subordinated debt structure is a matter of priority ofrights to the proceeds of liquidation."

Another problem with the potential breadth of the definition of securitisation lies in the regulatory
effort to reduce or prohibit the "bad" securitisations which are widely perceived as contributing to
the financial crisis while recognising "good" securitisations and encouraging those as an essential
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and healthy part of a growing economy. Appreciating the consequences of labelling a particulartransaction as a securitisation is important and should very much relate to the nature of theindividual type of product or transaction in question – a definition which covers a broad spectrumof financial techniques under a single heading will be, and has proved, in practice difficult to
operate.
This is because there is no unifying concept of what a securitisation is – as outlined in Chapter 2,
securitisation is far less of a particular product and more a tool box of techniques which can be put
together as part of a transaction. A "one-size-fits-all" approach to regulation of securitisations will
always be elusive.
4. Overlap and Over-Regulation
A final point to consider in the context of ways securitisation can be regulated is the overlap withother areas of regulation. A wide range of participants engage in securitisation transactions –among them are a number of entities which are already subject to regulation such as banks,
insurance companies and funds.
As the regulation of each of these areas overlaps it is often unclear which regulations takeprecedence, whether they are mutually exclusive or whether they can coexist. Before any new
regulation is introduced the questions should certainly be asked as to whether existing regulationin place, already binding on the participants involved, is already sufficient.
There is no doubt that certain types of securitisation can be positive force to help encourage
growth in economies and over-regulating securitisation or securitisation participants may hinder
its beneficial economic effect.

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X.

Regulation in Asia (Clifford Chance)
This work has looked at securitisation from a number of perspectives – taking in the history anddevelopment of securitisation in other markets, the features that make a particular transaction asecuritisation, why there is a case for an active securitisation market in Asia, how securitisation is
operating and being developed both legally and practically in Asia and the various regulatory
options available in order to regulate it.
What this chapter will do is explore how securitisation should be regulated in Asia in order to derive
the beneficial effects it can bring to its economy.

1. Economies in Asia
There are a number of unique features of the economies in Asia which differ significantly from theeconomies in the US and Europe. It would have been wrong to think US and European regulation
should (or even could) have simply been imported into countries in Asia and achieve the desired
effect. First, there is already debate over whether that regulation works as efficiently as it could in
the US and Europe and second, the differences in economies in Asia means tailored approaches
would result in a much better fit.
Some of these features of economics in Asia include:
•
•
•
•
•
•
•
•
•

a heavy historic reliance on bank funding;international capital markets are relatively undeveloped (while domestic capital markets arestrong, in jurisdictions such as Singapore and Korea);
capital markets have a significant pool of retail investors;some banks have high leverage and limited risk-distribution channels;
banks rely significantly on customer deposits for funding, and are able to rely on this due tothe high deposit rates in the region;
complex credit intermediation structures and sophisticated financial engineering techniques
are relatively rare;a high proportion of borrowing is used for investment rather than consumption;
borrowing is largely driven by corporates rather than individuals and government; andthere is very little data on the historical performance of regional securitisation transactions.

2. How Can Securitisation Help
Chapter 2 outlined a number of ways in which securitisation can bring benefits to an economy. In
Asia there are some of these benefits which are particularly relevant.

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Deleveraging of Banks
In some economies around Asia banks are highly leveraged (arguably creating systemic risks) andthere is a desire on the part of governments, regulators and the banks themselves to reduce thatleverage. Securitisation can be a very useful tool to help achieve that.
In shifting risk away from the banking system securitisation techniques can be used to attainaccounting and regulatory capital relief for institutions which originated portfolios of loans(whether performing or not) thereby freeing up their capital and reducing their leverage.
The securitisation of loans in this way also connects non-bank investors with underlying borrowers
meaning that the delivery of credit is being moved outside of the regular banking system. Delivery
of a proportion of credit in this manner can be beneficial – it is generally far less leveraged thancredit delivered to the economy by banks and it is generally non-maturity transformed (i.e., thematurity of investors' assets generally matches the borrower's liabilities). This builds on theresilience of the financial system.
In many economies in Asia, where borrowing tends to be for investment rather than consumption,
long term assets, such as infrastructure and home loans do not fit as naturally with banks, which
rely on short term funding sources, but can fit well with other types of investors, such as insurancecompanies or pension funds, who would be seeking exposure to those longer-term assets.
Deeper and More International Capital Markets
While domestic bond markets are growing and developed in a number of countries in Asia (forinstance, China, Korea and Singapore), international capital markets are generally seen as nothaving the depth and liquidity of equivalent markets in the US and Europe. Securitisation can help
in three respects on this front.
First, securitisation creates an alternative investment product for investors. By repackaging assets
which would otherwise be illiquid (such as auto-loans or infrastructure debt) a securitisation opens
up these types of investments to a range of participants in the capital markets who would
otherwise not have been able to have that exposure. In the face of equity market turmoil, fixedincome securities, such as securitisation bonds and notes may well provide a popular choice.
Second, securitisation provides a very different type of risk to a corporate or government bond –it gives exposure to a pool of assets, rather than the credit of an operating business. This different
type of investment product can help investors diversify their risk.
Third, securitisations, within a regulatory framework, can be very transparent and provide asignificant amount of data and information about the underlying exposures. This means investors
can make very informed investment decisions and lends credibility to securitisation as aninvestment product.
Diversification

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Any time banks seek to deleverage there is a concern among borrowers that there will not be
sufficient credit to meet their borrowing needs. This has been seen especially sharply in the US
and Europe since the global financial crisis where a number of banks have simply removed productlines from their businesses and stopped lending in certain jurisdictions they saw as too high risk.
Small and medium sized business in the "real economy" have been particularly affected by thisreduction in credit.
To countenance against a risk of a reducing level of credit being provided by banks, if a nonfinancial institution or a corporate is able to access the capital markets it provides them with analternative source of funding. Securitisation techniques allow corporates to have that access tocapital markets which they would not otherwise have and consequently keeps credit flowing to thereal economy.
Equally, banks in Asia (which have a heavy reliance on customer deposits for funding) can diversify
their funding sources and take a proportion of their overall funding requirement from the capital
markets through securitisation. By having alternative sources of funding, particularly whencompared to short-term liabilities such as customer deposits, banks can become more resilient tofinancial shocks.
A Case for More Securitisation in Asia
As reflected by its ongoing use, there is clearly a case for securitisation in Asia. The existing legal
and regulatory regimes also recognise this, for instance a variety of securitisation regulation is now
in place around Asia:
•
•
•
•
•

in Hong Kong, the Banking (Capital) Rules (Cap. 155L), most recently updated on 1 January
2018;
in Singapore, Monetary Authority of Singapore Notices 628 (Securitisation) and 648 (Covered
Bonds);
in Korea, the Asset-Backed Securitisation Act (No. 5555) and the Korea Housing FinanceCorporation Act (No. 7030); andin Japan, the Act of Securitisation of Assets; andin China, the CBIRC SPT structure, the CSRC SAMP structure and the NAFMII ABN structure(all as discussed in more detail in Chapter III).

But as the securitisation markets continue to grow, in particular, as they become moreinternational, thought needs to be given to how these regimes will interact.
3. Types of Securitisation
This work has highlighted the different types of asset classes typically securitised around Asia andhas also identified the types of entities which have been undertaking securitisation transactions.
What is clear is that the types of securitisation transactions being undertaken generally fell into
two categories:
Page 108 of 130••transactions which essentially provide investors with ownership rights in an assets portfolio(e.g., the CSRC SAMP structure or Singapore covered bonds)– what we might term asset
ownership in securities form; andtransactions, which essentially provide a funding line from investors to a financial institution,
non-financial institution or a corporate secured over certain assets of that entity – what wemight term lending on assets in securities form.

Other securitisation structures, which are more common in the US and Europe are not common at
all in Asia. For instance:•••banks in Asia have not implemented secured treasury funding platforms (often structured
as "master trusts") where asset portfolios are used as collateral to raise on-going finance fora bank's treasury function. A particular feature of these platforms requires the originator tocontinually replenish the assets in the structure and make new issuances. An exception tothis may be the Singapore covered bonds programmes established by a number of Singapore
bank, however, the issuances from those platforms form only a small part of those banks'
mortgage funding operations;more diverse investment products, which involve the repackaging and retrenching of aportfolio of underlying bonds, are also uncommon; andsynthetic risk acquisition products, using derivatives to transfer risks relating to portfolios ofassets from an originator to investors, are often used by US and European banks to achieve
regulatory capital relief but are little seen in Asia.

It is interesting that the securitisation structures which are thriving in Asia are those which mostaccurately match the benefits securitisation technology can bring to economies in Asia:••

allowing investors to own asset portfolios in securities form (i) assists banks in deleveraging
by sharing the risk they hold with investors and (ii) contributes to a broadening anddeepening of the capital markets by providing additional investment products for investors
to invest in; andsecured lending in securities form secured on asset portfolios provide additional diversity to
non-financial institutions which would otherwise be reliant, possibly over-reliant, on bankfunding.

The absence in Asia of other securitisation structures which are seen in the US and Europe is less afunction of markets in Asia needing to "catch-up" and more a function of how the economies
around Asia have developed to date and what their individual requirements and characteristics
are.

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XI.

The Case for Blockchain in Securitisation in Asia (MUFG)
Not many people imagined the dominant rise of global technology companies post the dot-com
bubble of the early 2000s. Yet, today, not many of us can imagine living in a world without thetechnology afforded to us by these same firms such as Amazon, Facebook and Google.
Some of us have read news relating to “blockchain” and how it might revolutionise the financial
industry. There are also a number of use cases being cited across the banking industry and how the“blockchain” is helping drive further efficiencies. A wide spectrum of players has also jumped onto
the bandwagon to try to extract value from deploying “blockchain” solutions, including central
banks, financial institutions, technology firms, consulting firms, accounting firms, and evenhobbyists. Is this truly a technology that can already be deployed or is it going to take more time
before living up to its potential?
This article starts by giving a brief introduction on the blockchain technology. Following that, we
would attempt to pinpoint potential aspects where the blockchain technology can be deployed togenerate efficiencies for securitisation transactions. Lastly, we explore some of the projects andplayers focused on deploying the technology in its early days that might be relevant to thesecuritisation industry.

1. What is Blockchain?
When we think about blockchain, we usually relate to cryptocurrencies such as Bitcoin, Ethereum,
Ripples and others. As a first step, we would like to encourage you to decouple the blockchain
technology from cryptocurrencies because blockchain platforms do exist without a related
cryptocurrency.
The blockchain is also very often termed a “distributed ledger technology” (DLT). In essence, thetechnology requires a network of users or nodes. Participants in the network are allowed togenerate, share and safeguard information in a secure, auditable, and immutable manner.
Blockchains (to be used interchangeably with the term DLT) can be either public (where anyone
can join) or private (restricted to selected participants with possibly varying levels of authority toview, create and share information).
This article focuses on the private blockchain systems. In the closed environment, participants areinvited to join the network. There are usually no cryptocurrencies involved. Such networks are also
usually controlled by a single administrator or a group, which decides the level of authority to grantto the participants. For example, employees from the organisation hosting the network might havea higher level of authority to view all recorded transactions on the platform, where participants
such as clients are only able to view related transactions.
Essentially, on a blockchain platform, all the transactions within a certain timeframe are packaged
into a “block” and added onto the prior “block” in the chain with a time-stamp. Each block contains
a digital signature of the previous block (also termed a “hash”), making it extremely difficult tochange the data within one “block” without changing all the others that came after it. The security
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of a blockchain is enforced by using cryptography techniques to secure the information processed
through the network, ensuring that the information is only viewable by the intended recipients.
Copies of the data on this blockchain is subsequently updated and shared with all the nodes (orparticipants) in the network, ensuring that a node that got hijacked or destroyed would notcompromise the network.
Blocks are added to the blockchain based on consensus among its nodes. There are a number ofblockchain consensus protocols such as “proof of stake”, “proof of activity”, “proof of burn”, andmore. Without going into the details, for private blockchain platforms, consensus could beachieved in various ways, including being based on a majority of nodes agreeing to add the newminted blocks onto the blockchain.
2. How Can We Tap on Blockchain in Securitisation
There are multiple ways that blockchain can potentially be deployed in the securitisation market
in Asia. We believe that the following areas would most likely see blockchain driving changes tothe securitisation industry.
••••

Real-time performance monitoring
Smart contracts to monitor transaction covenants and triggers
Driver towards greater standardisation of transaction terms
More efficient settlement and deeper trading liquidity

We would tread briefly across each area of interest and highlight the potential efficiencies that canbe generated if Blockchain can be deployed in that specific area. Also, it would be paramount toremember that some changes would arrive much faster than the others, mainly because of thepace of innovation across the spectrum of various financial instruments. For example, secondary
trading on a blockchain could become the norm much faster than tracking and monitoring asset
performance if Blockchain is deployed by market participants in the debt capital markets.
2.1.

Asset Origination and Performance Monitoring“Is real-time asset performance available?” The answer “yes” would be a dream-come-true formany securitisation investors. Imagine being able to access the mortgage loan or lease contract indetail, being able to gauge the obligor’s ability to service the loan (with confidentiality ensured forcertain fields) and being able to witness each payment made towards interest and principal for asingle asset. Taking this one step further, imagine being able to access this data for the entire poolof obligors in any particular asset pool that you have invested into or have done a pool cut on.
The scenario above would revolutionise the securitisation industry, cutting out the inefficiencies(e.g. cost of information) that sometimes plague securitised assets, and create trust amongindustry participants. Blockchain could potentially achieve this, going towards solving one of theroot problems that led to the Global Financial Crisis (GFC).

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One key reason why industry participants assess the asset performance by monthly, quarterly oreven annual vintages are to check for potential loosening or tightening of underwriting criteria overtime by the Originator. Having access to the original contracts allows for faster verification andchecks. The due diligence process can also become more efficient as a result.
As the securitised asset pool amortises, investors are able to review loans that are written-off, if
they so wish. Delinquencies can also be better managed by the Servicer and Originator. Ideally,
besides being able to view the obligors’ payment towards interest and principal, the blockchain
should also capture how the delinquent receivables are being managed. For example, investors
would be able to assess if the delinquent obligor was reminded by email or text to make payments,
or if they were visited by the collections team to follow up on the delinquency.
The images conjured might sound utopian and highly impossible, but that is exactly whatblockchain could achieve, to store and share this information in a secure, transparent, andimmutable manner to all participants within the network with varying degrees of access authority.
In fact, some market participants have already started embracing trials relating to such usage ofthe blockchain in the US mortgage industry. 28 There is much efficiency that can be achieved in thisarea but sweeping changes would likely be slow in coming, especially given the diverse choices ofblockchain platforms for this DLT to be built.
2.2.

Transaction Covenants and Triggers“Smart contracts” are programs that would execute what it has been coded to do when certain
conditions are being met or triggered. Interestingly, the idea of a smart contract has been aroundfor more than 20 years already. 29
We expect that deploying smart contracts execution would result in a faster, more secure and costefficient way to enforce on covenants and triggers. There is no need for trusted third parties toensure that the terms are being performed by using a smart contract. So long as the terms areagreed on prior to the event happening, smart contracts are programmed to ensure that execution
happens.
Building on the earlier scenario that real-time asset performance is available on the blockchain, we
can use smart contracts to track and monitor the transaction performance. When the delinquency
ratio of a transaction asset pool reaches an unhealthy level, smart contracts can be set up to sendalerts to the various stakeholders such as the investors and the originator. This would save cost to
have operational staff constantly monitoring all the transactions.
If the delinquency ratios continue rising and certain triggers are breeched, the smart contracts can
automatically initiate action such as ensuring that originators or sellers fund certain reserves as28

https://www.bloomberg.com/news/articles/2018-01-18/blockchain-eyed-for-mortgage-bundling-thatcaused-2008-crisis

29

http://ojphi.org/ojs/index.php/fm/article/view/548/469#1
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buffer against the rising delinquency levels. Of course, this scenario can also go towards moving
the transaction into an Early Amortisation Event phase if the asset performance continues todeteriorate.
While the perks of using Smart Contracts are many, there are plenty of hurdles to overcome. For
one, smart contracts have to be deployed on a blockchain which is interoperable with otherplatforms. For example, the blockchain must be linked to the sponsor’s bank account so that funds
can be drawn down automatically when there is a need to fund reserve accounts. Suchinteroperability currently does not always exist.
In addition, while blockchain has often been touted as a secure system, there are security
vulnerabilities to smart contracts. A recent study relating to analysing nearly 1 million Ethereumsmart contracts has led to the flagging of 34,000 contracts as vulnerable. 30 The contracts do act inunintended ways at time and it is still early days.
2.3.

Standardisation of Transaction Terms

The more varied regulatory landscape in Asia makes it difficult for practitioners to fully understandall the laws and frameworks relating to securitisation in details. This nature of the regionallandscape has made securitisation a bespoke financing instrument in Asia. Many potential issuers
have often heard about securitisation and the concept behind how it can be used but are hesitantto try it.
With blockchain, securitisation in Asia has a higher chance at having more standardised terms andconditions. The standardisation would likely make it much easier for the transaction to be recorded
and executed on the blockchain.
While the various securitisation markets in Asia have varying legal frameworks catering tosecuritisation market, having a uniting blockchain network might hopefully drive a convergence ofregulations towards more similar terms as well. Regulators would be able to factor in unique
circumstances relating to their national policies, while benchmarking against their regionalcounterparties in assessing which rules are beneficial or detrimental to their own securitisation
markets.

30

https://www.technologyreview.com/s/610392/ethereums-smart-contracts-are-full-of-holes/
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2.4.

Settlement and Trading Liquidity

Interestingly, several governments have already started establishing Proof-of-Concept initiatives
to test their own digital currencies. We would touch on this further in the later part of the article.
Behind this drive is the unlocking of value for swift settlement of financial instruments and cash
management synergies.
In Asia, securitised bonds and notes are usually held-to-maturity. Secondary trading of securitised
instruments is usually done over-the-counter. Even for markets with budding secondary trading
platforms, transactions are not often seen. Against this background, the benefits of having
blockchain-based securitisation transactions can be easily established.
The potential for settlement of primary and secondary securitisation transactions on theblockchain would likely follow the development of the mainstream debt capital markets. The
benefits are many.
The first useful characteristic of the blockchain is the deployment of smart contracts in settlement.
Buyers and sellers greatly lower their credit risk because the securities and monies are
simultaneously exchanged and delivered in a swift and efficient manner.
Settlement and trading details can be recorded on the blockchain, adding transparency and pricing
information to the market. For private trades, the pricing information can still be recorded but only
available for viewing by the seller, buyer and perhaps even market regulators.
Lastly, for amortizing securitised products with a pass-through schedule, the blockchain would
allow sellers to have the required information to assess the estimated collections and give an
accurate pricing including the accrued yield on a day-to-day basis.
3. Notable Initiatives and Projects
There are multiple Blockchain proof-of-concept and pilot projects being launched globally. Manyof these initiatives would likely have a “build-on” accumulative impact to blockchain being
deployed in securitisation. Given the direction of our article, our focus would be on developments
in Asia.
A.
Monetary Authority of Singapore’s (MAS) Project Ubin
The Singapore central bank, MAS, has been working with a panel of banks on a blockchain project
titled ‘Project Ubin’. The project aims to explore the use of Distributed Ledger Technology (DLT) in
achieving greater efficiency for financial transactions and involved a tokenised, digital Singapore
Dollar being deployed for payment and settlement testing.
In March 2017, Phase 1 of the project was successfully completed with the digitalised Singapore
Dollar been transferred successfully among participants on a DLT platform involving the Ethereum
blockchain protocol. In October 2017, Phase 2 of the project was completed successfully, withthree other different blockchain software protocols being used for the initiative.

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Some projects were launched after the second Phase of Project Ubin. One of these projects
involves the Singapore Exchange (SGX) looking into how to facilitate the trading and settlement of
fixed income securities via DLT. This would be an important step towards a potential blockchain
trading platform for securitised products going forward if the DLT proves useful.
B.
Hong Kong Monetary Authority (HKMA) Trade Finance Platform
The HKMA has been working on various blockchain-related projects, largely in the trade financespace. 31 The trade finance segment has been identified as one plagued by inefficiencies such as
heavy paper workloads that could be automated and digitised. This regulator-led effort would first
focus on creating a platform in Hong, followed by efforts for cross-border trade with other central
banks and regulators. 32
This development is encouraging in that while the blockchain technology for blockchain tradefinance improves, many aspects such as the cutting down of paper-oriented work would likely betransferrable. Building on precedents, a future blockchain securitisation platform would like also
be safer against potential fraud and more efficient.
4. Parting Message
We are at an exciting crossroad of sorts. There are many blockchain projects and platforms being
driven and tested. It is not a question of whether blockchain technology would come to impact
securitisation, but rather when. In that, we hope participants would be well-prepared and welcome
the many positive changes to come.

31

https://www.reuters.com/article/us-blockchain-trade/hong-kong-regulator-banks-launch-blockchain-basedtrade-finance-platform-idUSKBN1K70AP

32

https://www.gov.sg/~/sgpcmedia/media_releases/mas/press_release/P-201711151/attachment/Joint%20media%20-%20Singapore%20and%20Hong%20Kong%20launch%20a%20joint%20p
roject%20on%20cross-border%20trade%20and%20trade%20finance%20platform.pdf
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XII.

Outlook and Conclusions (ASIFMA)As we have seen in the course of our extensive discussions above, it is worth noting that regulatory
and market frameworks governing securitisation, especially in China, are evolving rapidly.
Moreover, generally speaking, we have demonstrated that Asian domestic securitisation markets
are more active relative to their cross-border counterparts. Indeed, Asian cross-border issuance,
which was (and still remains) a fraction of US and European issuance, dropped sharply post 2008
as the market for CDOs (which accounted for the bulk of Asian issuance pre-2008) virtually shut
down. In terms of securitisations aimed entirely at domestic market investors, Korea was dominant
but the fast-growing Chinese market has not only taken the lead, but the lead continues to widen
as the domestic bond markets and the pool of assets that can be securitised continues to growrapidly.
After hitting a peak of USD 8 billion in issuance (meeting international scale ratings – basically crossborder securitisations) in 2007 (source: Standard & Poor’s, BIS), this fell to USD 5.8 billion in 2008
and even more sharply to USD 2.3 billion and USD 1.7 billion in 2009 and 2010 respectively (source:Standard & Poor's, BIS). The primary reason for the fall in internationally rated cross-borderissuance was the slump in regional CDO issuance, which was a sizeable USD 3 billion in 2006, USD
5 billion in 2007 and approximately USD 4 billion in 2008, but then slumped to almost nothing ineach of the two subsequent years (source: Standard & Poor’s, BIS). In the years prior to 2008, CDOs
offered a way for the region’s issuers with lower ratings to meet the region’s investor needs forhighly-rated paper. A diversified portfolio of lower-rated credits can obtain a higher rating througha properly structured CDO, but in the aftermath of the events of 2008, the market for thesestructures fell sharply, along with Asian investors’ appetite for risk.
One potential future area for cross-border growth in CDO issuance in the potential re-packaging ofChinese LGFV bonds into CDOs, through the combination of a mix of debt issuances by both higher
and lower rated LGFV issuers – the structuring of such transactions is likely to provide a mix of both
higher returns to investors and assist in the wider distribution of LGFV risk, thus reducing systemic
vulnerabilities. In fact, a few such transactions have already been concluded and the outlook forsuch deals in the future remains bright.

1. CLOs Retain Their Appeal
However, unlike CDOs which suffered a severe dent to their reputation, CLOs did not suffer as badly
during the crisis years and CLO issuance globally rebounded sharply after the slump of 2009-2011.
CLOs are typically backed only by corporate loans (unlike CDOs, which in their heyday had
underlying mortgage assets lumped in as well, a factor that contributed to their poor performance
during the crisis). Indeed, in a low interest rate environment, the mezzanine tranches of CLOs withinvestment grade ratings are particularly attractive for certain classes of Asian investors, such as
Korean (and Japanese) insurance companies who have guaranteed high payouts on insurance
policies and other products sold to investors in the past.
Globally, CLO issuance in 2017 and 2018 has continued at a frenzied pace, as a combination ofrising interest rates and a strong leveraged loan market has driven the need to bundle corporate
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loans into CLOs. Moreover, a number of new managers have been attracted to this space and thathas led to perceptions that credit quality may be being sacrificed in this quest for yield.
Even so, this popularity of CLOs is set to continue, more so as the Asian investor base develops a
degree of sophistication that allows them to consider alternative asset classes. Indeed, the big priseremains the domestic CLO market in China as international access to this asset class, which is
growing by leaps and bounds, will help change the face of securitisation in the region.
With the passage of time, it is clear that recent regulatory changes - primarily The Volcker Rule andthe risk retention requirement for securitisations introduced in both the USA and Europe – have
not really adversely impacted cross-border CLO issuance. Specifically, the 5% risk retention
requirement imposed on CLO managers until maturity, both by the EU’s CRD (Capital Requirements
Directive) and the Dodd-Frank Act in the US has had no impact on CLO originations.
2. Other Asset Classes and Covered Bonds
Turning to the other securitised cross-border asset classes within the region, Korea has one of themost developed securitisation frameworks. The passage of the ABS Act, post-Asian crisis in
September 1998 with the establishment of a “True Sale” framework, and the legislation enabling
the issue of covered bonds much later, has led to considerable development of the Korean crossborder ABS market. Apart from Korean credit card and auto loan ABS, the “future flow”
securitisation carried out by Korean Air in 2011 is noteworthy (although the structure itself is not
new and has been implemented both within the region and elsewhere much earlier).
On the subject of covered bonds, one significant point worth noting is that based on the current
Korean covered bond legislative framework, RMBS issued by the Korea Housing FinanceCorporation (KHFC) is effectively similar to a covered bond. Since investors in covered bonds haverecourse to both the issuer and the underlying “cover pool” of assets, these structures are
attractive from the viewpoint of international investors. For the moment, KHFC has only issued
RMBS in the domestic markets and while that issuer has issued USD-denominated bonds in theinternational market, there have been no international MBS issues to date by KHFC.
Turning to the other regional markets, covered bond issuance in Singapore has shown considerable
development since the establishment of that country’s covered bond framework in 2013. One
recent innovation involved the issue of a dual-currency covered bond by one of Singapore’s leadingbanks. Besides USD, covered bond issuance in EUR, AUD and GBP (pound sterling) have been
carried out and although the framework exists for LCY SGD-denominated covered bond issuance,
no covered bond transaction has been concluded in that currency, as of August 2018.
3. The Regulatory Framework and Conclusions
As the foregoing discussions have shown, in recent years, there have been considerable
enhancements/improvements to the Chinese securitisation framework since the establishment of
the CBRC/PBOC and the separate CSRC pilot programmes in 2005. For example, CBRC, CSRC andthe PBOC recently relaxed the existing rules to allow a new notice filing system from the more
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restrictive application/approval process on a case by case basis that was used in the past.
Furthermore, the CSRC also clarified that ABS issuers could use SPV structures (something not
explicitly provided for under Chinese law) and expanded the range of assets eligible for ABS.
Among more recent developments, the introduction of the “Trust Structure ABN” in 2016, wherein
assets backing the notes are entrusted to a newly established special purpose trust (SPT) under the
Trust Law of the People's Republic of China, allows corporates to access the more liquid China
Interbank securitisation market. Specifically, the ring-fencing protection provided by the trust
structure ABN is similar to that provided under the Credit Assets Securitisation (CAS) scheme whichis regulated by the PBOC and CBRC and which until recently was accessible only to bank and nonbank financial institutions. In addition, elsewhere in the China domestic securitisation market, overthe 2017-18 period, the securitisation of Non-Performing Loans (NPLs) and the development of the
CMBS/quasi-REITs framework, especially in the context of the rapid development of the PRC ecommerce market, are especially noteworthy and has been extensively discussed in Chapter 3
above.
Turning to other issues, the roles of a trustee and loan service company are clearly well defined in
the more established jurisdictions but are still evolving in China. Finally, issues related to ratings,
tax, swaps documentation, close-out netting and access to underlying assets in the event ofbankruptcy all require a greater degree of clarity/resolution before international investors get ahigher level of comfort with China securitisations.
In conclusion though, as China plays an ever-greater role in the global economy, its currency willinternationalise at a much faster pace and, moreover, by some measures (such as holdings by
central banks), the renminbi is already a de facto reserve currency. As more investors seek to holdassets in the Chinese currency, securitisation offers them an attractive option for diversification –more so in the context of the further liberalisation of foreign investor access to the China Interbank
Bond Market (CIBM) and the introduction of the “Bond Connect” scheme – both of which allow forforeign investors to invest in Chinese securitised assets. More importantly, from the issuers’ pointof view, securitisation offers an excellent option to de-risk balance sheets and more efficiently use
capital. Finally, regulators too have an incentive to encourage securitisation to enable them tomeet policy objectives. Clearly, securitisation is one asset class whose future seems assured with
China set to be the new frontier.

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XIII.

Appendices1.

Sources
AFME, SIFMA, King & Wood Mallesons, Moody’s, Fitch Ratings, Ernst & Young, Clifford Chance,
ICRA, Thomson Reuters, Bloomberg, IFLR, IMF, Bank of England, Lexology, FinanceAsia, Asia
Credit Markets, Reserve bank of Australia, Asia E-Trading, ICLG, MAS, Mayer Brown, Federal
Reserve Bank of New York, IOECD, Investopedia, European Central Bank, Euromoney, RMI.

2.

Author/contributors biographies

Clifford Chance
Christopher Walsh, Partner
Christopher Walsh is a partner in our London office who has an in-depth
experience of all capital market products and in particular structured financetransactions including Covered Bonds and securitisations.
His experience includes working for both arrangers and originators on a wide
variety of RMBS, CMBS, Covered Bonds, MTNs and real estate transactions andalso on both conventional and Islamic financings and throughout the UK,
Europe, the Middle East and Australasia. Chris has established a wide variety ofdebt programmes for various institutions including Barclays Bank, Clydesdale
Bank, IPIC, National Bank of Abu Dhabi, Barclays Capital, Citi and DeutscheBank, including advising the arrangers and dealers on the inauguralestablishment of a covered bond programme in Singapore.
Chris also works extensively on portfolio acquisitions and warehouse financingsfor private equity clients and other financial and corporate institutions. Chris's
experience spans working with clients in Australia, Asia, Europe and the U.K.

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Francis Edwards, Partner, Registered Foreign Lawyer
Francis is the Head of our Derivatives and Structured Finance Practice inGreater China and a market leading derivatives and structured financespecialist.
Francis specialises in all forms of derivatives, financial market products andstructured finance, including repackagings, credit derivatives, equity
derivatives and other OTC derivatives, structured products, securities lending
and repos, as well as netting, collateral, clearing, custody and credit risk
management issues.
His focus is on complex transactional matters and innovative market
developments in Asia Pacific. Francis also regularly advises on Hong Kong
regulatory matters and on issues arising from the global OTC derivatives
regulatory reforms. Francis is a regular speaker on derivatives and regulatory
matters, including for ISDA and other trade associations.
Paul Landless, Partner
Paul Landless is a partner in our Singapore office who specialises in structured
finance, derivatives and financial markets products, including securitisations,
repackagings, structured notes, securities lending and repo. He leads thefinancial markets team in Singapore and South East Asia. He also has extensive
experience in various types of structured transactions, including in relation tocommodities trading, commodity financing and various forms of structured
trade finance.
He regularly advises on global and local financial regulatory developments andfinancial market infrastructure. He is also the co-head of the firm's global TechGroup as one of the leaders of the Fintech practice with particular interest in
data, cyber, artificial intelligence, smart contracts and DLT uses in financial
markets trading and risk management.
Paul has worked in Clifford Chance's London, Hong Kong and Singapore offices,
sit on the firm's global Brexit Markets Group and help lead the ASEAN Focus
Group and the Philippines Focus Group.

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James Pedley, Registered Foreign Lawyer (England and Wales)
James is a structured debt and securitisation lawyer, who has been based in thefirms' London and Hong Kong offices, with more than ten years of experienceacting for arrangers, investors, banks and originators involving a wide variety ofasset classes, including trade receivables, infrastructure, RMBS, CMBS, autoloans, consumer loans and corporate loans on complex cross-bordertransactions.
He has also established and restructured a variety of structured funding
platforms, including ABCP conduits, structured corporate debt platforms,
receivables and trade finance platforms and risk distribution programmes forbanks. James also regularly advises on the regulatory aspects of structured
debt and securitisation transactions.
Ernst & Young
Rohit Narula, Partner, Financial Services Transaction Tax
Rohit is a Hong Kong based Transaction Tax Partner and is also part of EY’s AsiaPacific Financial Services Tax Team.
He joined EY in 2012 and prior to EY he worked in the Financial Services Tax &Regulatory Team in another Big 4 firm in Mumbai since 2005.
He brings in multitude of experience in the area of tax in the Financial Services
space, covering Banks, Non-Banking Financial Companies, Capital Market
Players, Private Equity Funds.
He has been responsible for managing various multi-jurisdictional tax projects
for large foreign banking groups and capital market players.
He has extensive experience in international and domestic taxation (in India
and Hong Kong), inbound entry strategies for multinationals and outboundstructuring strategies for large Asia corporates. He advises large multinationals
on planning their tax strategies in Asia-Pacific.

Fitch Ratings

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Claire Heaton, Senior Director
Claire is a senior director and the analytical team head of Fitch Ratings' coveredbond team based in Sydney, Australia which is responsible for covered bonds
ratings issued out of the Asia-Pacific region. Claire has extensive experience incovered bonds and structured finance spanning 18 years. She is also theprimary author of Fitch’s APAC Covered Bonds Quarterly publication thatcovers all Fitch rated Australian, New Zealand, Singapore and South Korean
covered bond programmes.
Claire has been the head of the Asia-Pacific covered bond team in Sydney frommid-2013 after being based in Fitch’s covered bond team in London, since
January 2010. While there, Claire was involved in rating covered bonds issued
out of Ireland, Netherlands, Canada, United Kingdom and Norway coveringresidential, commercial and public sector assets.
Claire joined Fitch in October 2006 in Sydney Australia and was previously
responsible for structured finance ratings across RMBS, CMBS and ABS forAustralia and New Zealand. Until her move to London, she had worked in theAustralian securitisation industry close to 10 years.
King & Wood Mallesons
Paul McBride, Partner
Paul McBride is a partner specialising in securitisation, structured finance andderivatives. Paul has a broad range of experience across Asian markets andunderlying assets representing all market participants including financiers,
arrangers, insurers, originators, swap counterparties, rating agencies andinvestors. Paul has been involved in most of the first to market China related
cross border asset-backed deals over recent years.
Paul is regularly ranked as a leading lawyer.

Paul worked in Tokyo and London for another international firm before joining
King & Wood Mallesons in 2005.

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Eddie Hu, Partner
Eddie Hu is a partner in the Shanghai office and specialises in structured
finance, securitisation, syndication, loan & credit facility, M&A of financial
institutions, real estate finance and tax.
Eddie Hu has been practicing in China since 2004 and has extensive experiencein advising major international commercial banks, investment banks, assets
managers, hedge funds, private equity funds, developers and sponsors on
China related projects, M&A transactions, structured finance, acquisition
finance, real estate finance, financial institution acquisition, distressed debts
and workout and other domestic or cross-border matters.
Eddie Hu has advised a number of banks, auto finance companies, and financial
companies in their asset-backed securitisation transactions.
Eddie joined King & Wood Mallesons in 2007 and before that he had practised
as in-house legal counsel in Mitsubishi Corporation.
Eddie also has qualifications of Chartered Financial Analyst, Certified Public
Accountant, Certificated Tax Advisor and Certified Public Valuer in PRC.
Anne-Marie Neagle, Partner
Anne-Marie Neagle is a partner specialising in securitisation, derivatives, debt
capital market, hybrid, convertible and structured capital markets transactions,and structured finance. Her experience includes advising on the acquisitionand securitisation of loan, leasing, non-performing and other receivables, on
hybrid capital and other structured capital products, on green and social
corporate and securitised bonds and on derivatives transactions.
Anne-Marie is highly regarded as an Australian and Asian securitisation andstructured finance practitioner, and as a thought leader in innovative structuresand new development areas such as Green and Social Bonds and securitisationsof new asset classes.
Anne-Marie has also worked in a leading international firm in London.

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Darwin Goei, Associate
Darwin Goei is an associate in the firm’s securitisation team. He specialises instructured finance and securitisation.
Darwin is part of the team that pioneered the “first-to-market” loan
repackaging deals involving onshore PRC credit support, and has been involvedin nearly all repeats of such deals in the market since. Additionally, Darwin is
actively involved in the Korean cross-border ABS market, having worked on
securitisation deals involving most of the major Korean credit card and autoloan companies.
Moody’s
Elaine Ng, Vice President - Senior Analyst
Elaine Ng is a Vice President---Senior Analyst with Moody’s Structured FinanceGroup in Asia. Based in Hong Kong, Elaine has been with Moody’s since 2000.
Elaine is responsible for rating various structured finance transactions in Asia
(ex-Japan), including different types of asset-backed securitisations,collateralised loan obligations, repackaged notes, standby letters of credit
supported transactions, asset-backed commercial papers, commercial
mortgage-backed securitisations and residential mortgage-backed
securitisations.
Elaine holds a Bachelor of Finance from The University of Hong Kong andBachelor of Laws from the University of London.

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MUFG
Taemoon Chung, Managing Director & Head of Securitisation Asia
Taemoon spent nine years at RBS Tokyo prior to joining MUFG in March 2012.
He has more than 16 years of APAC securitisation experience with a focus on
consumer assets and has lead-arranged a number of first-time and awardwinning transactions in the region.
He was previously an equity analyst of non-bank financials sector at ING Tokyoand also worked at Citi in the US.
Taemoon graduated with a B.S. in Chemical Engineering (Minor in Economics)
from the Massachusetts Institute of Technology. He is a CFA Charter holder andspeaks English, Japanese and Korean.
Clarence Chan, Vice President, Securitisation
Clarence joined MUFG in 2016 and is responsible for expanding MUFG’s pushto provide securitisation solutions to clients in East Asia.
Prior to this role, Clarence was part of Temasek Holdings’ corporate financeteam, where he focused on funding optimisation and credit ratings. He started
his career at DBS Bank where he was part of the structured debt solutions group
working on asset-backed securities and other debt instruments.
Clarence holds a Bachelor of Business Administration (First Class Honours)
degree from the National University of Singapore. He is fluent in both English
and Mandarin.

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3. Individual firm disclaimers

Clifford ChanceThis publication does not necessarily deal with every important topic nor cover every aspect of the
topics with which it deals. It is not designed to provide legal or other advice. Prior results do notguarantee a similar outcome.
Ernst & Young
This material has been prepared for general informational and educational purposes only and is notintended, and should not be relied upon, as accounting, tax or other professional advice. Please refer
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ALL FITCH CREDIT RATINGS ARE SUBJECT TO CERTAIN LIMITATIONS AND DISCLAIMERS. PLEASE READTHESE
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DEFINITIONS AND THE TERMS OF USE OF SUCH RATINGS ARE AVAILABLE ON THE AGENCY'S PUBLICWEB SITE AT WWW.FITCHRATINGS.COM. PUBLISHED RATINGS, CRITERIA, AND METHODOLOGIES ARE
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This material is intended to provide general information only and, as such, does not constitute legal
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King & Wood Mallesons is not responsible for any loss which may arise from accessing, using or
relying on any such information.

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Moody’s© 2018 Moody’s Corporation, Moody’s Investors Service, Inc., Moody’s Analytics, Inc. and/or theirlicensors and affiliates (collectively, “MOODY’S”). All rights reserved.
CREDIT RATINGS ISSUED BY MOODY'S INVESTORS SERVICE, INC. AND ITS RATINGS AFFILIATES (“MIS”)
ARE MOODY’S CURRENT OPINIONS OF THE RELATIVE FUTURE CREDIT RISK OF ENTITIES, CREDITCOMMITMENTS, OR DEBT OR DEBT-LIKE SECURITIES, AND MOODY’S PUBLICATIONS MAY INCLUDE
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AND ANY ESTIMATED FINANCIAL LOSS IN THE EVENT OF DEFAULT. CREDIT RATINGS DO NOT ADDRESSANY OTHER RISK, INCLUDING BUT NOT LIMITED TO: LIQUIDITY RISK, MARKET VALUE RISK, OR PRICEVOLATILITY. CREDIT RATINGS AND MOODY’S OPINIONS INCLUDED IN MOODY’S PUBLICATIONS ARENOT STATEMENTS OF CURRENT OR HISTORICAL FACT. MOODY’S PUBLICATIONS MAY ALSO INCLUDEQUANTITATIVE MODEL-BASED ESTIMATES OF CREDIT RISK AND RELATED OPINIONS ORCOMMENTARY PUBLISHED BY MOODY’S ANALYTICS, INC. CREDIT RATINGS AND MOODY’S
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EXPECTATION AND UNDERSTANDING THAT EACH INVESTOR WILL, WITH DUE CARE, MAKE ITS OWNSTUDY AND EVALUATION OF EACH SECURITY THAT IS UNDER CONSIDERATION FOR PURCHASE,HOLDING, OR SALE.
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and reliable. Because of the possibility of human or mechanical error as well as other factors, however,
all information contained herein is provided “AS IS” without warranty of any kind. MOODY'S adopts
all necessary measures so that the information it uses in assigning a credit rating is of sufficient quality
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and from sources MOODY'S considers to be reliable including, when appropriate, independent thirdparty sources. However, MOODY’S is not an auditor and cannot in every instance independently verify
or validate information received in the rating process or in preparing the Moody’s publications.
To the extent permitted by law, MOODY’S and its directors, officers, employees, agents,
representatives, licensors and suppliers disclaim liability to any person or entity for any indirect,
special, consequential, or incidental losses or damages whatsoever arising from or in connection with
the information contained herein or the use of or inability to use any such information, even if
MOODY’S or any of its directors, officers, employees, agents, representatives, licensors or suppliers isadvised in advance of the possibility of such losses or damages, including but not limited to: (a) any
loss of present or prospective profits or (b) any loss or damage arising where the relevant financial
instrument is not the subject of a particular credit rating assigned by MOODY’S.
To the extent permitted by law, MOODY’S and its directors, officers, employees, agents,
representatives, licensors and suppliers disclaim liability for any direct or compensatory losses ordamages caused to any person or entity, including but not limited to by any negligence (but excluding
fraud, willful misconduct or any other type of liability that, for the avoidance of doubt, by law cannot
be excluded) on the part of, or any contingency within or beyond the control of, MOODY’S or any of
its directors, officers, employees, agents, representatives, licensors or suppliers, arising from or inconnection with the information contained herein or the use of or inability to use any suchinformation.
NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY, TIMELINESS, COMPLETENESS,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY SUCH RATING OR OTHER
OPINION OR INFORMATION IS GIVEN OR MADE BY MOODY’S IN ANY FORM OR MANNER
WHATSOEVER.
Moody’s Investors Service, Inc., a wholly-owned credit rating agency subsidiary of Moody’s
Corporation (“MCO”), hereby discloses that most issuers of debt securities (including corporate andmunicipal bonds, debentures, notes and commercial paper) and preferred stock rated by Moody’s
Investors Service, Inc. have, prior to assignment of any rating, agreed to pay to Moody’s InvestorsService, Inc. for appraisal and rating services rendered by it fees ranging from $1,500 to approximately$2,500,000. MCO and MIS also maintain policies and procedures to address the independence of MIS’s
ratings and rating processes. Information regarding certain affiliations that may exist between
directors of MCO and rated entities, and between entities who hold ratings from MIS and have also
publicly reported to the SEC an ownership interest in MCO of more than 5%, is posted annually at
www.moodys.com under the heading “Investor Relations — Corporate Governance — Director andShareholder Affiliation Policy.”
Additional terms for Australia only: Any publication into Australia of this document is pursuant to theAustralian Financial Services License of MOODY’S affiliate, Moody’s Investors Service Pty Limited ABN
61 003 399 657AFSL 336969 and/or Moody’s Analytics Australia Pty Ltd ABN 94 105 136 972 AFSL
383569 (as applicable). This document is intended to be provided only to “wholesale clients” within
the meaning of section 761G of the Corporations Act 2001. By continuing to access this documentfrom within Australia, you represent to MOODY’S that you are, or are accessing the document as aPage 128 of 130

representative of, a “wholesale client” and that neither you nor the entity you represent will directly
or indirectly disseminate this document or its contents to “retail clients” within the meaning of section
761G of the Corporations Act 2001. MOODY’S credit rating is an opinion as to the creditworthiness ofa debt obligation of the issuer, not on the equity securities of the issuer or any form of security that isavailable to retail investors. It would be reckless and inappropriate for retail investors to use MOODY’S
credit ratings or publications when making an investment decision. If in doubt you should contact yourfinancial or other professional adviser.
Additional terms for Japan only: Moody's Japan K.K. (“MJKK”) is a wholly-owned credit rating agency
subsidiary of Moody's Group Japan G.K., which is wholly-owned by Moody’s Overseas Holdings Inc., awholly-owned subsidiary of MCO. Moody’s SF Japan K.K. (“MSFJ”) is a wholly-owned credit rating
agency subsidiary of MJKK. MSFJ is not a Nationally Recognised Statistical Rating Organisation(“NRSRO”). Therefore, credit ratings assigned by MSFJ are Non-NRSRO Credit Ratings. Non-NRSRO
Credit Ratings are assigned by an entity that is not a NRSRO and, consequently, the rated obligation
will not qualify for certain types of treatment under U.S. laws. MJKK and MSFJ are credit rating
agencies registered with the Japan Financial Services Agency and their registration numbers are FSA
Commissioner (Ratings) No. 2 and 3 respectively.
MJKK or MSFJ (as applicable) hereby disclose that most issuers of debt securities (including corporate
and municipal bonds, debentures, notes and commercial paper) and preferred stock rated by MJKK or
MSFJ (as applicable) have, prior to assignment of any rating, agreed to pay to MJKK or MSFJ (asapplicable) for appraisal and rating services rendered by it fees ranging from JPY200,000 to
approximately JPY350,000,000.
MJKK and MSFJ also maintain policies and procedures to address Japanese regulatory requirements.
MUFG
This report has been prepared by MUFG Bank, Ltd. (the “Bank”), for information only and is notintended for use by or distribution to any person or entity in any jurisdiction or country where such
distribution or use would be contrary to law or regulations. The Bank and/or any person connectedwith it may make use of or may act upon the information contained in this report prior to the
publication of this report to its customers.
Neither the information nor the opinion expressed herein constitute or are to be construed as an offer,solicitation, advice or recommendation to buy or sell deposits, securities, futures, options or any otherfinancial or investment products.
This report has been prepared solely for informational purposes and does not attempt to address the
specific needs, financial situation or investment objectives of any specific recipient.
This report is based on information from sources deemed to be reliable but is not guaranteed to beaccurate and should not be regarded as a substitute for the exercise of the recipient’s own judgment.
The recipient should obtain separate independent professional, legal, financial, tax, investment orother advice, as appropriate.
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This report is based upon the analysts’ own views, therefore does not reflect the Bank’s official views.
All views herein (including any statements and forecasts) are subject to change without notice, its
accuracy is not guaranteed; it may be incomplete or condensed and it may not contain all material
information concerning the entities referred to in this report. None of the Bank, its head office,branches, subsidiaries and affiliates is under any obligation to update this report.
Historical performance does not guarantee future performance. Any forecast of performance is notnecessarily indicative of future or likely performance of the any product mentioned in this report.
The Bank and/or its directors, officers, and employees, from time to time, may have interest and/or
underwriting commitment in the relevant securities mentioned herein or related instruments and/or
may have a position or holding in such securities or related instruments as a result of engaging in suchtransactions. Furthermore, the Bank may have or have had a relationship with or may provide or haveprovided corporate finance or other services to any company mentioned herein.
The information contained herein has been obtained from sources the Bank believed to be reliable
but the Bank does not make any representation or warranty nor accept any responsibility or liability
as to its accuracy, timeliness, suitability, completeness or correctness. Therefore, the inclusion of thevaluations, opinions, estimates, forecasts, ratings or risk assessments described in this report is not tobe relied upon as a representation and / or warranty by the Bank. The Bank, its head office, branches,
subsidiaries and affiliates and the information providers accept no liability whatsoever for any direct,
indirect and/or consequential loss or damage of any kind arising out of the use of all or any part of thisreport.
The Bank retains copyright to this report and no part of this report may be reproduced or redistributed
without the written permission of the Bank and the Bank, its head office, branches, subsidiaries oraffiliates accepts no liability whatsoever to any third parties resulting from such distribution or redistribution.

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