Banking and finance
We advise private clients and medium-sized and large companies as well as credit institutions and public authorities on issues of finance and banking law. Our experience extends from out-of-court assessments and representations of interest to representations before courts and in administrative proceedings. In the Banking and Finance Group we work with lawyers from other disciplines to provide our clients with fully integrated advice.
With respect to the construction law expertise of our office, finance law issues in the implementation of construction projects represent a core area for us. We also advise banks that provide project finance on the establishment and implementation of controlling and monitoring systems that enable them to comply with their supervisory (risk minimisation) obligations. A further focus for us lies in the provision of advice on regulatory requirements for projects in the renewable energy field.
In addition, we regularly advise clients on issues of licensing and supervision and in relation to capital investments, credit agreements and collateral security law questions.
In a market that is becoming increasingly complex, in which enhanced online solutions are used for transfers and in which third party payment service providers are frequently employed, both the EU Payment Services Directives have in recent years lead to ever stricter regulation and thus to complicated legal frameworks for payment transactions and payment services. Through the provision of advice, we assist our clients in avoiding any consequential pitfalls. We also represent our clients in the assertion of legal claims, such as in the event of failed transfers.
- Provision of regular advice to a medium-sized bank on general banking law matters (e.g. on bank transfer business, enforcements, etc.)
- Advising national and international companies on the contractual arrangement (in accordance with standard terms and conditions) of online ordering and payment processes
- Advising medium-sized and large companies on the design and structuring of internal authorisation processes for payment instructions
- Legal and out-of-court representation of a wide range of clients regarding failed or unauthorised transfer processes
Credit institutions and other investment advisors have an obligation to advise their customers in a proper and investor-oriented manner and to either avoid conflicts of interest or to disclose them. In practical terms, customers must be clearly informed of the characteristics of the products that have been recommended to them; furthermore, the recommendation must correspond to the investment goals of the customer. We have many years of litigation experience in the assertion of, as well as in the defence against, claims for damages that can arise from the breach of these obligations.
- Legal assertion of damage claims based on misleading advice on swap transactions and other derivative financial products
- Out-of-court and court representation for breaches of (investment) consultation obligations
We advise both lenders and borrowers in the drafting of credit agreements and the corresponding securities, such as mortgages or guarantees.
- Long-term provision of advice to real estate companies and property development companies on the structuring of credit agreements and security agreements
- Advising real estate companies on safeguarding against credit risks using the land registry and other means
The issuing of asset investments is associated with various obligations under the German Investment Products Act. Investment products include, among other things, silent participations, limited partnership interests, participation rights and crowd finance. In this area, we advise our clients on the conception, drawing up and review of the prospectus as well as on the requirements of the German Retail Investor Protection Act.
- Advising a trans-regional German airport on the issuing of participation rights to employees
- Advising multiple wind power companies and municipal utilities on the public offering of investments in wind park participations including the drawing up or review of sales prospectuses
It is typical in project finance to establish a separate project company that will be responsible for the establishment/implementation of the project. For investors/creditors, it is not the classic loan collateral that is decisive for the credit commitment or the investment decision, but rather the expected return from the project to be financed. For financing agreements, we do not advise only on “classic project financings” but also e.g. on the provision of securities for participation in EEG tendering procedures.
If the project financing is carried out by a number of lenders, who share the risk of the financing between them, then this is a consortium financing, which is frequently used in large-scale projects.
- Regular provision of advice to wind power companies and municipal utilities on the project financing of wind parks
- Advising a leading car-parts mail-order company on the uptake of a syndicated loan
The law of corporate finance covers the general financing of businesses that are managed by a natural person or a company. In practice this is not, by any means, limited to the traditional “bank loan”; in fact, the measures for company or acquisition financing range from the provision of equity capital to the provision of debt capital and from so-called shareholder loans to hybrid / mezzanine financing funds. The latter includes, for example, silent partnerships as well as convertible loans. Due to the close connection with company law issues, we work closely with our practice group Commercial and corporate law in this area.
In times of crisis we support companies in the development and implementation of concepts for rehabilitation and restructuring. We advise creditors of companies that have fallen into a state of crisis on the protection and enforcement of their claims.
Politics and banking supervision are working around the world towards improved regulation for the banking system. The regulatory framework under “Basel III” embodies the vested interest of the banks: risk mitigation. It is therefore increasingly important for banks to underpin their know-how on financing for construction projects and real estate business with specific expertise on building construction and technical building equipment. However, the required degree of specialised construction knowledge cannot always be assumed. For this reason, we have developed a service profile by which we systematically reduce the construction and financing risk of the banks that we advise.
In the field of leasing we advise, for example, on the drafting and optimisation of appropriate agreements or on the forfeiting of leasing receivables. In addition, we support our clients according to their requirements in the legal assertion or defence of leasing claims.
- Advising a medium-sized bank on the acquisition of leasing claims
- Representing a leading company on various issues of leasing law relating to large hall construction
Mainka, Kein Nutzungsersatz für Verbraucher bei Widerruf von Kreditverträgen!, Anm. zu EuGH, Urteil vom 04.06.2020 – Rs. C-301/18, IMR 2020, 518