The Payment and Electronic Money Institution Insolvency Regulations 2021

Objectives 1 and 3: PPTAs: set-off and netting

31.—(1) A PPTA may not provide for the transfer of some (but not all) of the protected rights and liabilities (“PRL”) between the institution and—

(a) a user or holder (“U”), or

(b) another person (“P”).

(2) PRL are—

(a) rights and liabilities which U or P or the institution is entitled to set off or net under a particular set-off arrangement, netting arrangement or title transfer financial collateral arrangement which U or P has entered into with the institution, and

(b) not excluded rights (“ER”) or excluded liabilities (“EL”).

(3) ER, in relation to rights between U or P and the institution, means “excluded rights” within the meaning of the Banking Act 2009 (Restriction of Partial Property Transfers) Order 2009(1) (see article 1(3)), subject as follows—

Provision	Modification
Paragraph (a)	To be read as if for “relate to a retail deposit” there were substituted “conferred by a PI or EMI contract”.
Paragraph (b)	To be read as if for “relate to a retail liability owed to a banking institution” there were substituted “are conferred, in relation to relevant funds, by an enactment”.
Paragraphs (c) and (d)	Omitted.
Paragraph (e)	To be read as if after “subordinated debt” there were inserted “issued by U or P or the institution”.
Paragraph (f)	To be read as if after “article 3(1)” there were inserted “issued by U or P or the institution”.

(4) “EL” is to be read in light of paragraph (3).

(5) It is immaterial whether or not—

(a) the arrangement which permits U or P or the institution to set off or net rights and liabilities also permits U or P or the institution to set off or net rights and liabilities with another person, or

(b) the right of U or P or the institution to set off or net is exercisable only on the occurrence of a particular event.

(6) A PPTA made in contravention of this regulation does not affect the exercise of the right to set off or net.

(7) If a PPTA purports to transfer all of the PRL between U or P and the institution despite a possibility that any of the PRL are foreign property (and might not have been effectively transferred), the administrator may assume it is a PPTA which is not subject to the restriction in paragraph (1).

(8) In this regulation—

“netting arrangement” has the same meaning as in the IBSAR 2011 (see regulation 10D(6));

“set-off arrangement” means an arrangement under which two or more debts, claims or obligations can be set off against each other;

“title transfer financial collateral arrangement” has the same meaning as in the Financial Collateral Arrangements (No 2) Regulations 2003(2) (see regulation 3(1)).

(1)

S.I. 2009/322, amended by S.I. 2009/1826, 2018/1394. There are other amending instruments by none is relevant.

(2)

S.I. 2003/3226, to which there are amendments not relevant to these Regulations.