148

When the PRC Futures and Derivatives Law comes into effect on 1 August 2022, China will become a

“clean netting jurisdiction”. Therefore, now is the time for Chinese companies and their international

financial institution counterparties to actively focus on regulatory margin requirements for OTC

derivatives and negotiate initial margin and variation margin documentation.

Based on KWM’s extensive experience in assisting major international and Chinese financial institutions

with margin documentation negotiations, this bilingual guide is designed to help Chinese companies gain

a better understanding of the key initial margin documents used in the international market.

I. Overview of regulatory margin requirements

The Basel Committee on Banking Supervision and the International Organization of Securities

Commissions have jointly published a set of global regulatory margin standards which require

counterparties to OTC derivatives to post and collect initial margin and variation margin to and from

each other. To implement the global regulatory margin standards, most major jurisdictions have

introduced their own local regulatory margin rules subject to some important jurisdiction-specific

variations.

Generally speaking, regulated financial institutions (such as banks) are directly subject to local

regulatory margin rules issued by the relevant financial regulator(s). These rules generally require the

institution to both post and collect (i.e., exchange) variation margin and initial margin to and from

certain types of counterparties.

To comply with the regulatory requirement to exchange margin, a regulated financial institution will

negotiate and enter into margin documents with each of its counterparties, which will impose

contractual obligations on each side to exchange margin. Therefore, even if a counterparty to a

regulated financial institution is not directly subject to regulatory margin rules – either because (1) it is

149

not financially regulated or (2) the jurisdictions in which it operates has not yet issued local regulatory

margin rules – the counterparty becomes indirectly and contractually subject to margin requirements

by virtue of entering into margin documents with a regulated financial institution.

Financial regulators in the People’s Republic of China (“China” or “PRC”) have not yet published local

regulatory margin rules, but are expected to do so in the future. However, Chinese financial institutions

and general corporates would still be indirectly and contractually subject to margin requirements upon

entering into margin documents with a foreign regulated financial institution.

Please refer to our earlier bilingual article for further information about regulatory margin requirements,

their scope of application (including cross-border application), the distinction between initial margin

and variation margin, substituted compliance and other related topics.

II. Overview of key initial margin documents

The International Swaps and Derivatives Association (“ISDA”) has developed a large number of industry

standard margin documents that are designed to comply with initial margin requirements.

The local regulatory margin rules in most jurisdictions generally require initial margin to be held in a

segregated account and not to be rehypothecated, repledged or reused. Initial margin should generally

be held in an account with an independent third-party custodian which is segregated from the

proprietary assets of the security-taker and custodian, and adequately protected from insolvency of the

security-provider, security-taker and custodian. This segregation requirement, which applies to initial

margin (but not to variation margin) means that initial margin arrangements are documented separately

to variation margin arrangements. This article provides a high-level overview of the key initial margin

documents. We will cover variation margin documents in a subsequent article.

ISDA has developed a wide range of standard initial margin documents designed to work with different

types of custodians and governing laws. For example, ISDA has developed initial margin documents for

150

circumstances where the custodian is a bank and where the custodian is an international central

securities depository such as Euroclear or Clearstream.

Generally, the initial margin documents involve the “security-provider”

97 granting a security interest in

favour of the “security-taker”

98 over collateral held by the independent third-party custodian (which

can be a bank or a clearing house such as Euroclear or Clearstream).

1. “Tri-party” or “third party” custodial services

Generally, custodians offer either “tri-party” or “third party”custodial services in respect of initial

margin:

 “Tri-party” model

Under the tri-party services model, the custodian plays a more active role in collateral selection,

valuation, verification, optimization and management, which means the security-provider and

security-taker in turn play a more hands-off role and, from their perspective, the initial margin

exchange process appears more automated. Euroclear and Clearstream provide tri-party custodial

services (but not third party services) in respect of initial margin.

 “Third party” model

In contrast, under the third-party services model, the custodian plays a more passive role, which

means the security-provider and security-taker in turn play a more hands-on role in collateral

selection, valuation, verification, optimization and management.

The choice between tri-party and third party has implications for the initial margin documents and,

where the custodian is a bank, the account control agreement.

2. English law IM CSD and New York law IM CSA – for use with bank custodians

We generally see two types of “flagship” initial margin documents adopted in the market:

 English law governed IM CSD

As far as the English law documents are concerned, ISDA’s “flagship” initial margin document is the

2018 Credit Support Deed (“CSD”) for Initial Margin (“IM CSD”). The IM CSD is based on the ISDA

151

1995 English law CSD and is therefore a separate security document executed as a deed and not

forming part of the ISDA Master Agreement. Instead of relying on title transfer, the IM CSD involves

creating a security interest over the segregated account and the collateral held in it. Significantly,

pursuant to regulatory margin requirements, initial margin must generally be transferred on a twoway gross basis, which means that each counterparty must transfer collateral to the other

counterparty’s segregated account and these two separate transfer obligations cannot be netted or

set off against each other.

 New York law governed IM CSA

As far as the New York law documents are concerned, ISDA’s “flagship” initial margin document is

the 2018 Credit Support Annex (“CSA”) for Initial Margin (“IM CSA”). The IM CSA is based on the

ISDA 1994 New York law CSA and also involves creating a security interest over the segregated

account and the collateral held in it. In this article, the IM CSA and IM CSD shall be collectively

referred to as the “IM CSA/CSD”.

The elections and variables paragraph of the IM CSA/CSD allows parties to make various elections

and amendments to meet applicable commercial and regulatory requirements. The most common

types of elections are discussed further below.

The IM CSA/CSD can be used where the security-provider will post initial margin to a segregated

account held with a bank custodian. The parties will also need to enter into an account control

agreement and custody agreement.

Where the jurisdiction in which the bank custodian is located is different to the jurisdiction the

laws which govern the ISDA Master Agreement between the parties, the parties may effectively

“split” the IM CSA/CSD into a collateral transfer agreement and a security agreement, as explained

below.

3. Splitting the IM CSA/CSD into two: the collateral transfer agreement and the security agreement

ISDA has also published the Bank Custodian Collateral Transfer Agreement for initial margin and several

Bank Custodian Security Agreements governed by the laws of different jurisdictions. The Bank Custodian

Collateral Transfer Agreement and Bank Custodian Security Agreement represent the two halves of the

IM CSA/CSD:

(1) the Bank Custodian Collateral Transfer Agreement governs the mechanical and operational aspects

of the margin exchange process and is generally governed by the same governing law as the relevant

152

ISDA Master Agreement; and

(2) the Bank Custodian Security Agreement relates to the creation and enforcement of the security

interest and is governed by the law where the segregated account is located.

The reason for splitting the IM CSA/CSD into a collateral transfer agreement and a security agreement

is to allow the parties to enter into a security agreement the governing law jurisdiction of which matches

the location of the segregated account, while allowing the collateral transfer agreement to be governed

by the same governing law as the relevant ISDA Master Agreement.

The IM CSA/CSD, the Bank Custodian Collateral Transfer Agreement and the Bank Custodian Security

Agreement are bilateral agreements entered between the parties.

4. Account control agreement

Where the security-provider will post initial margin to a segregated account held with a bank custodian,

the security-provider, the security-taker and the bank custodian must enter into an account control

agreement. The account control agreement governs, among other things, the circumstances and manner

in which the security-taker or security-provider can exercise exclusive control over the segregated

account and instruct the bank custodian to transfer collateral out of the account.

Notably, the account control agreement is a tri-partite agreement among the security-provider, the

security-taker and the bank custodian.

Generally, an account control agreement allows the security-taker to obtain exclusive control over the

segregated account by giving a Notice of Exclusive Control to the bank custodian. After receiving a

Notice of Exclusive Control, the bank custodian would generally only act in accordance with instructions

from the security-taker. An account control agreement would also allow the security-provider to obtain

153

exclusive control over the segregated account by giving a Control Event Notice99

to the bank custodian.

After receiving a Control Event Notice, the bank custodian should generally only act in accordance with

instructions from the security-provider.

Major bank custodians have published standard form account control agreements, which are subject to

certain elections that the parties can make to reflect their commercial and regulatory needs. These

elections allow the parties to, among other things:

 When notice effective: agree on whether to impose a delay period before the Control Event Notice

takes effect. If there is a delay period, the parties can further agree on: (1) the length of the delay

period; (2) whether the security-taker can give a Notice to Contest to the bank custodian stating

that the Control Event Notice is groundless, which invalidates the Control Event Notice before it

takes effect; and (3) the circumstances in which certain acceleration events can override the delay

period; and

 Competing notices: agree on how the bank custodian should deal with a competing Control Event

Notice and Notice of Exclusive Control, including whether the bank custodian must nevertheless

comply with a Notice of Exclusive Control given by the security-taker after the security-provider

has already given a Control Event Notice to the bank custodian but before the Control Event Notice

takes effect.

5. Eligible Collateral Schedule

An Eligible Collateral Schedule is a schedule that sets out the types of eligible collateral that the

security-provider can post to the security-taker, including applicable regulatory and foreign exchange

haircuts and concentration limits. Under the tri-party services model, the Eligible Collateral Schedule

is agreed amongst the security-provider, the security-taker and the custodian, and is included as part of

the account control agreement. Under the third party services model, the security-provider and the

security-taker typically agree between them the Eligible Collateral Schedule .

6. Custody Agreement

Where the security-provider will post initial margin to a segregated account held with a bank custodian,

the security-provider will enter into a custody agreement, which will govern the terms of the custody

account that the security-provided has established with the bank custodian. To comply with regulatory

margin requirements, initial margin will be transferred from the custody account into the segregated

154

account. Each bank custodian has its own standard form custody agreement.

7. Euroclear and Clearstream initial margin documents

Where the custodian is not a bank but Euroclear or Clearstream, the parties would enter into:

(1) in the case of Euroclear, the 2019 Euroclear Collateral Transfer Agreement and the 2019 Euroclear

Security Agreement; or

(2) in the case of Clearstream, the 2019 Clearstream Collateral Transfer Agreement and the 2019

Clearstream Security Agreement.

Again, the credit support document is split into the collateral transfer agreement and the security

agreement for similar reasons as in the bank custodian context. The Euroclear Collateral Transfer

Agreement and Clearstream Collateral Transfer Agreement are generally governed by the same

governing law as the relevant ISDA Master Agreement. The Euroclear Security Agreement is governed

by the laws of Belgium, where Euroclear is based, while the Clearstream Security Agreement is governed

by the laws of Luxembourg, where Clearstream is based.

The Euroclear and Clearstream initial margin documents are designed to specifically work with the

Euroclear and Clearstream membership documents, respectively, which are entered into by the relevant

parties. Therefore, the elections and variations provisions in the Euroclear and Clearstream initial

margin documents are somewhat different to those found in the bank custodian initial margin documents.

The membership documents perform a similar role to the account control agreement in the bank

155

custodian context and contain the terms of the tri-party custodial services provided by Euroclear or

Clearstream, as the case may be.

8. One-way and two-way initial margin documents

An initial margin document can be a one-way document or a two-way document. A one-way document

governs the initial margin posting leg of only one party (being the security-provider), which posts initial

margin to the other party (being the security-taker). In contrast, a two-way document governs each

party’s initial margin posting leg but these two separate initial margin flows cannot net be netted or set

off against each other.

At the parties’ election, each of the IM CSA/CSD, Bank Custodian Collateral Transfer Agreement,

Euroclear Collateral Transfer Agreement and Clearstream Collateral Transfer Agreement may be used as

a one-way or a two-way initial margin document. To do this, the parties simply specify in the relevant

initial margin document whether the “One Way Provisions” are “Applicable” or “Not Applicable”.

Please note, however, that each Bank Custodian Security Agreement, Euroclear Security Agreement and

Clearstream Security Agreement can only be used as a one-way document. For example, even if the

parties enter into a two-way Euroclear Collateral Transfer Agreement, they must still enter into two

separate Euroclear Security Agreements, one for each party’s initial margin posting leg. As illustrated

156

below, the ability to use the IM CSA/CSD or collateral transfer agreement as a one-way document is

useful where each party uses a different type of custodian.

III. How do I decide which initial margin documents to use?

The choice of initial documents for any given pair of counterparties depends on a number of factors,

including the custodian used by each counterparty, the location of each segregated account and the

governing law of the ISDA Master Agreement between the parties.

1. Basic example

To begin with a straightforward example, if the ISDA Master Agreement is governed by New York law and

each party has chosen a bank custodian located in New York, then the parties can enter into a two-way

IM CSA governed by New York law to provide for the exchange of initial margin. Similarly, if the ISDA

Master Agreement is governed by English law and each party has chosen a bank custodian located in

London, then the parties can enter into a two-way IM CSD governed by English law to provide for the

exchange of initial margin. In each of these two scenarios, a separate account control agreement and

custody agreement would need to be entered into in respect of each party’s posting leg.

2. Other examples

 Same type of custodian

However, in reality, the type of custodian chosen by each party, the governing law of the ISDA Master

Agreement and the location of each segregated account would not always be so conveniently

aligned. As noted above, even if both parties have chosen to use a bank custodian as opposed to

Euroclear or Clearstream, if the location of the segregated account is different from the jurisdiction

the laws of which govern the ISDA Master Agreement, the parties may choose to split the IM CSA/CSD

157

into a collateral transfer agreement and a security agreement. For example, where the relevant

ISDA Master Agreement is governed by English law but the segregated account is located in France,

the parties may wish to choose to enter into a Bank Custodian Collateral Transfer Agreement (which

shall be governed by English law) and a French law governed Bank Custodian Security Agreement.

 Different types of custodian

Things become more complicated where each party chooses a different type of custodian. Since

each party can in theory choose between one of three types of custodians (i.e., a bank custodian,

Euroclear or Clearstream), this gives rise to nine possible combinations. If the parties have chosen

the same custodian type, they can generally enter into a two-way IM CSA/CSD, Bank Custodian

Collateral Transfer Agreement, Euroclear Collateral Transfer Agreement or Clearstream Collateral

Transfer Agreement, as the case may be. However, each security agreement entered into can only

be a one-way document.

If the parties have chosen different types of custodians, the IM CSA/CSD or the relevant collateral

transfer agreement would also need to be a one-way document. For example, suppose the ISDA

Master Agreement is governed by English law and Party A has chosen a bank custodian based in

London. In respect of Party A’s posting leg, a one-way IM CSD, account control agreement and

custody agreement would be entered into. If Party B has chosen Euroclear as its custodian, then in

respect of Party B’s posting leg, a one-way Euroclear Collateral Transfer Agreement and Euroclear

Security Agreement would be entered into.

IV. Negotiating initial margin documents – overview of some common elections

Despite the development and widespread use of industry standard initial margin documents, these legal

documents are highly complex and heavily negotiated, because each document allows the parties to

make a large number of elections and further amendments to tailor for their specific commercial and

regulatory circumstances.

The process of negotiating initial margin documents is comparable to negotiating an ISDA schedule or

the elections and variables paragraph of the 1994 New York law CSA or 1995 English law CSD. However,

the process can be much more complicated because multiple initial margin and other legal documents

are required for each pair of counterparties. Accordingly, many financial institutions and their

counterparties engage external law firms to assist with margin documentation, negotiation and related

legal and compliance issues.

158

While each initial margin document comes in a pre-printed form, it contains an elections and variables

(or equivalent) provision which allows parties to make various elections and amendments to meet

applicable commercial and regulatory requirements.

Please note that the initial margin documents are highly complex legal documents and what follows is

a merely simplified, high-level and non-exhaustive overview of some common types of elections that

can be made in the initial margin documents.

1. Regime table

The IM CSA/CSD and each Bank Custodian Collateral Transfer Agreement, Euroclear Collateral Transfer

Agreement and Clearstream Collateral Transfer Agreement include a regime table for the parties to

complete. The regime table allows the parties to identify the regulatory margin regime(s) (i.e. the

relevant local regulatory margin rules) that apply to their trading relationship.

Where more than one regime is identified as being applicable, then the initial margin documents will

require the security-provider to post initial margin in an amount that will satisfy the strictest

requirements among all such Regimes (“Strictest Of Approach”). By complying with the strictest

requirement, the parties will, as a matter of logic, be complying with the less strict requirements

imposed by the other applicable local regulatory margin rules.

159

Where a party is relying on substituted compliance (a concept which is explained in our earlier bilingual

article) in respect to a regime, that regime generally would not be specified as being applicable in the

regime table.

2. Elections relating to ISDA SIMMTM

The local regulatory margin rules in many jurisdictions require the amount of initial margin that is to be

exchanged to be calculated using either:

(1) a standardized initial margin schedule (known as the “regulatory grid”) which generally involves

applying regulatory prescribed percentages to the notional amounts of derivatives transactions and

adjusting using a net-to-gross ratio (“Mandatory Method”); or

(2) a sophisticated initial margin model approved by the regulator.

Since initial margin models are generally more risk-sensitive and recognize the benefits of netting to a

greater extent, they tend to result in quantitatively lower initial margin requirements than calculations

made using the regulatory grid.

ISDA SIMMTM (“SIMM”) is an initial margin model developed by ISDA which is widely used in the industry

to calculate initial margin requirements. In the initial margin documents, the parties can elect to use

SIMM by specifying “SIMM Exception” as being “Not Applicable”. Even if “SIMM Exception” is specified

as being “Applicable”, the parties can further elect the “Fallback to Mandatory Method”, which means

that SIMM will still be used unless a party gives notice that it is required under the relevant Regime to

use the Mandatory Method for certain types of transactions. Alternatively, the parties can elect for the

Mandatory Method to generally apply.

3. Selection of margin approach

In the initial margin documents, the parties can select one of three margin approaches for addressing

the interaction (if any) between initial margin posted under the initial margin documents and nonregulatory independent amounts posted under other credit support documents.

Under the Distinct Margin Flow (IM) Approach, as its name suggests, there is no interaction between

initial margin calculated and posted under the initial margin documents and non-regulatory independent

amounts calculated and posted under other credit support documents between the parties. In other

words, they remain two distinct flows of margin.

160

Under the Allocated Margin Flow (IM/IA) Approach, initial margin calculated under the initial margin

documents is posted in accordance with such documents, but non-regulatory independent amounts

calculated under other credit support documents between the parties will be reduced by the amount

initial margin posted under the initial margin documents.

Under the Greater of Margin Flow (IM/IA) Approach, the initial margin and non-regulatory independent

amount flows of margin will be combined into a single flow such that the greater of the two amounts

must be posted in accordance with the initial margin documents.

4. Specifying Thresholds and Minimum Transfer Amounts

In the initial margin documents, the parties can specify the “Threshold” for each security-provider,

which is basically the amount below which the security-taker is willing to tolerate without receiving any

initial margin from the security-provider. The parties should ensure that the Threshold set in the initial

margin documents does not breach any upper limits imposed by applicable local regulatory margin rules,

which may be determined at a group level.

The parties can also specify the “Minimum Transfer Amount” for each party, which basically means that

party will only need to post initial margin if the initial margin amount exceeds its Minimum Transfer

Amount. This concept is designed to prevent a party from having to post a nuisance amount of initial

margin. The parties should ensure that the Minimum Transfer Amount set in the initial margin documents

does not breach any upper limits imposed by applicable local regulatory margin rules.

5. Amending the Termination Currency in the ISDA Master Agreement

In the initial margin documents, the parties can elect to amend the definition of “Termination Currency”

in the relevant ISDA Master Agreement to eliminate any foreign exchange mismatch between the existing

Termination Currency and the primary currency of denomination of posted initial margin. Such an

amendment may reduce the foreign exchange haircut that would otherwise apply to the amount of

posted initial margin under certain local regulatory margin rules.

6. Conditions precedent provision

The conditions precedent provision in the initial margin documents provides that each party’s initial

margin transfer obligations are subject to the following conditions precedent:

(1) no Event of Default, Potential Event of Default or Specified Condition (each as defined in the relevant

initial margin documents) has occurred and is continuing with respect to the other party; and

161

(2) no Early Termination Date has occurred or been designated for which unsatisfied payment obligations

exist which is in respect of all “Covered Transactions” (being transactions under the ISDA Master

Agreement that are subject to initial margin requirements under applicable regimes).

The conditions precedent provision will apply unless it is expressly disapplied in the elections and

variables paragraph.

7. Rights and remedies in respect of posted initial margin

Under the initial margin documents, upon the occurrence of certain trigger events, the security-taker

or the security-provider (as applicable) may exercise certain rights and remedies in respect of posted

initial margin, including by giving control or access notices to the custodian.

In terms of terminology, a trigger event that enables the security-taker to exercise enforcement rights

and remedies is referred to as a “Security-taker Rights Event”.100

A trigger event that enables the

security-provider to exercise rights and remedies to essentially take back the posted initial margin is

referred to as a “Security-provider Rights Event”.101

Subject to further customisation by the parties, a Security-Taker Rights Event generally occurs when an

Early Termination Date in respect of all transactions has occurred or been designated under the relevant

ISDA Master Agreement as a result of an Event of Default or a Termination Event that is designated in

the initial margin Documents as an “Access Condition” with respect to the security-provider. We note

that if an account control agreement permits a Notice of Exclusive Control to not include instructions

as to the transfer of assets from the segregated account, the security-taker may be entitled under the

initial margin documents to deliver a Notice of Exclusive Control (thereby “freezing” the segregated

account) as soon as an Event of Default or Access Condition has occurred and is continuing in relation to

the security-provider, without having to wait for the occurrence of a Security-Taker Rights Event (which

further requires the occurrence or designation of an Early Termination Date in respect of all transactions

as a result of an Event of Default or Access Condition). In contrast, the Security-Provider is generally

not allowed to deliver a Control Event Notice until a Security-Provider Rights Event has occurred and is

continuing.

Subject to further customisation by the parties, a Security-Provider Rights Event generally occurs when

an Early Termination Date in respect of all transactions has occurred or been designated under the

162

relevant ISDA Master Agreement as a result of an Event of Default or a Termination Event that is

designated in the initial margin documents as an “Access Condition” with respect to the security-taker.

In the initial margin documents, the parties can elect which Termination Events (if any) shall constitute

an Access Condition in respect of each party. The initial margin documents also allow the parties to

make a number of other elections in respect of the triggers for exercising certain rights and remedies

in respect of posted initial margin. For example, the parties may elect to apply the “Security-Provider

Full Discharge Condition”

102, which is basically designed to ensure that the security-provider may only

remove posted initial margin out of the segregated account if it has met all its early termination-related

payment obligations to the security-taker under the relevant ISDA Master Agreement.

Where initial margin is held with a bank custodian, the relevant account control agreement may already

specify the trigger events that would allow the security-provider or security-taker (as applicable) to

issue control notices to the bank custodian. In that case, the parties may elect in the initial margin

documents for the relevant account control agreement trigger events to override the Security-Taker

Rights Events and Security-Provider Rights Events set out in the initial margin documents. These

elections are not applicable where the custodian is Euroclear or Clearstream because those custodial

arrangements do not involve an account control agreement.

8. Allocation of custodian risk

Since initial margin is required to be held by an independent custodian, the initial margin documents

include provisions which provide for the consequences if a Custodian Event, Euroclear Event or

Clearstream Event, as the case may be (collectively, “Custodian Event”) occurs. At a high-level, a

Custodian Event occurs if the custodian bank, Euroclear or Clearstream fails to comply with valid

instructions or with its obligations under the account control agreement, Euroclear membership

documents or Clearstream membership documents (as applicable) or resigns.

The initial margin documents generally provide that the security provider, but not the security-taker,

would be liable for the acts or omissions of the custodian, unless the parties specify “Custodian Event”

as being applicable, in which case any act or omission of the custodian which is a Custodian Event would

not result in a Credit Support Default Event of Default under the relevant ISDA Master Agreement.

Instead, the security-provider must try to cure the Custodian Event by finding an acceptable

replacement custodian before an agreed cure period expires. If the Custodian Event continues after

163

such cure period ends, it would constitute an Additional Termination Event with respect to which each

Covered Transaction is an Affected Transaction and both the security-provider and security-taker are

Affected Parties.

V. Where can I learn more about regulatory margin requirements and legal

documentation issues?

We at KWM are here to help you. KWM regularly assists international and PRC-based financial institutions

and corporates with bilingual ISDA/NAMFII, CSA, variation margin and initial margin document

negotiations, as well as with designing and documenting innovative and complex cross-border derivatives

products. We also regularly advise international and PRC-based clients on margin and other regulatory

requirements that apply to derivatives transactions.

KWM has been actively participating in legal developments relating to the enforceability of close-out

netting, security interest and title transfer arrangements in the PRC.

We are familiar with the unique issues faced by PRC-based financial institutions and their counterparties

and would be pleased to share our insights with you. Please feel free to contact our core team members

below.

Disclaimer: This publication is provided for general information purposes only and does not constitute

legal advice.

Thanks to Dolores Xie, Michael Jiang and Frederic Zhang for their contribution to this article.

164

银行从业人员涉刑案件新动向及风险防范建议

“ ” “ ”









165







2020—2022 “

”

103 2021 123

29.01%

“ ”

“ ” “ ” “ ”

参见中国司法大数据研究院：《 年中国金融机构从业人员犯罪问题研究白皮书》。

166

“ ” “ ”

“ ”

 “

”

 “

”

167







“ ”

“ ”

“ ”

168

“ ”

169

自其变者而观之——银保监会完善金融租赁公司项目公

司管理

2021 12 30

[2021]143 “143 ” 143

143 104

143

2010 2 “2 ”

2014

198 “ ”

2

1

2

“ ”

号文全文及负责人答记者问详细内容请见银保监会官网公告：

170

143 2

143

2

171 2 2

143

172

143

1.

2

2

143

143

2.

1

143

173

“ ”

105

1

“ ”

143

“ ”

2

2 143

6 143

143

2 143 2 6

3.

1

143

3

143

特别说明， 号文与 号文均明确规定了其中所提及的“融资租赁”同《金融租赁公司管理办法》的定义，根据《企业会计准则第 号 租

赁》在会计上可分为融资性租赁和经营性租赁。

174

106

143

143 1 143

3

3

2

143

2013 19

( [2017]9 )

“9 ”

9

*

* 9

1 2020 3 11 9

1 1.25 2020 12 11 2021 1 7

1.25 1

2015 2044

143

5

4.

《专业子公司管理规定》规定专业子公司是指金融租赁公司依照相关法律法规在中国境内自由贸易区、保税地区及境外，为从事特定领域融资租

赁业务而设立的专业化租赁子公司。而没有允许金融租赁公司为从事融资业务而设立专业化子公司。

175

1

2 143



107



2

143

“ ”

143

2014

2021 11 29 108

5.

《专业子公司管理规定》规定金融租赁公司设立境内专业子公司原则上应 控股，有特殊情况需引进其他投资者的，金融租赁公司的持股比

例不得低于 。

延伸阅读：《解析 关于规范国有金融机构资产转让有关事项的通知 对金融租赁公司资产交易的影响》（

）

176

2020 11 17

2020 111 “111 ”

109

2021 8 25 “

” “ ”( ) “ ”

2021 7 5

1.8 34%110

111 143

1

2

6.

143 3

143

143

143 “ ” “ ”

143

143

143

号文中所指“金融机构“包括依法设立的获得金融业务许可证的各类金融企业，主权财富基金、金融投资运营公司以及金融基础设施等实质

性开展金融业务的其他企业或机构。

数据来源于中国新闻网：《国务院国资委：以五个着力点推进中央企业结构调整与重组》（

）

177

178

从测算角度看一则融资租赁案例

2017

2017 155 111

“ ” “ ”

“ ”

179

180

/

181

IRR 18.56%

22 36 58 31

IRR 32.33%

6 4

182

183

IRR 22.50% 4%

 2015/7/14











184



IRR

185

 1 23.60%

 2 27.85%

 3 21.23%

 4 25.91%

IRR IRR=22.50% 3 IRR 1 2

IRR







186

IRR

2.6

2016 10 24

187

船舶融资系列（一）——船旗、船舶登记与船级社

112



目前有 168 个缔约国/组织（欧盟）。

188



113





114

115

该要求在部分自贸区得到了放开。如，根据《国务院关于同意在海南自由贸易港暂时调整实施<中华人民共和国船舶登记条例>有关规定的批复》

的规定，在海南自由贸易港暂时调整实施《中华人民共和国船舶登记条例》第二条第一款第二项的规定，对在海南自由贸易港登记，仅从事海南自

由贸易港内航行、作业的船舶，取消船舶登记主体外资股比限制。

如果待登记船舶的吨位超过 1,600 总吨位，且船舶为自行船舶，则该等公司的所有股东可以是非新加坡籍。

根据国际运输业工人联合会（ITF）的官网（https://www.itfglobal.org/en/sector/seafarers/flags-of-convenience），其认定的方便旗国是包括安提瓜和

巴布达、巴哈马、百慕大群岛、玻利维亚、开曼群岛、塞浦路斯、直布罗陀、利比里亚、马耳他、马绍尔群岛、巴拿马、马耳他等在内的 42 个国

家。

189

190

116

如在巴拿马，贷款人可以在船舶交付日办理抵押预先登记，只要在抵押预先登记后的 个月内完成正式的抵押登记，抵押预先登记与正式的抵押

登记具有同等效力。

191

117

在国内没有能够满足所申请运输要求的中国籍船舶，并且船舶停靠的港口或者水域为对外开放的港口或者水域的情况下，经国务院交通运输主管

部门许可，水路运输经营者可以在国务院交通运输主管部门规定的期限或者航次内，临时使用外国籍船舶运输。

192

193

附表 2

194

船舶融资系列（二）——香港船舶注册、船舶融资及担

保结构

“ ”

2022 7 2,451 1.3 118 2021

119

415 “ ”

1.

2. Demise Charter

“ ”

请见

请见

195

须

1.

2. Demise Charter Registration

2

,

120

,

121

,

Deed of Covenants

, Transcript of Register

,

请见 ，其中第 段。

请见

196

1.

2.



/ /



 Charterer

Standby Charter

,

,

197

3.



Special Purpose Vehicle



；另外 Security

Assignment 。

 /

/ /

/ :