(z.B. New York law regulates loan contracts, bailout provisions must be agreed if an EEA financial institution is a party to such a loan agreement. If German law is chosen as the law applicable to financial documentation, no internal bailout provision is required. 2 The rule in subsection b is based on the idea that it is not the party that pays, but the party that often, in a professional context, provides the characteristic benefit within a contractual relationship. It is this performance that determines the type of contract you face. This relatively simple and simple approach provides legal certainty and ensures a uniform approach to determining the law applicable to a contractual relationship, regardless of the jurisdiction or arbitral tribunal to which the matter is to be decided. However, even if this obstacle is overcome, the abandonment of the application of the Brussels Regulation to judgments and other decisions of the English courts (see point IV) can create significant uncertainties about the recognition of the regulatory regime applicable to non-English companies. As a general rule, an English court will only sanction an arrangement if it is recognized (and its effects) in the jurisdiction of the debtor or debtors whose obligations are “planned”. As noted above, the recognition of the judgments rendered by the courts of non-Member States in the Member States after Brexit depends on the procedural laws of the Member State concerned and whether the English courts will be aware that the arrangement or arrangements will be recognised in such an arrangement is therefore uncertain, not least because the arrangement cannot even be a “judgment” within the meaning of the local procedural laws that govern the recognition of the decisions of the foreign jurisdictions. If the post-Brexit arrangement system were to be regarded as an insolvency procedure from the EU`s point of view (and not as a judgment), it would only be recognised in the Member States if the main interest of the debtor (COMI) was in the United Kingdom. First, the rules do not apply to individually negotiated clauses. Secondly, it was recognized in the German market that the standard rules for terms and conditions may also apply to standard credit contracts and standard security documents used by banks and that certain provisions may not work as proposed by lenders offering such documentation.
The borrower or relevant counterparty who does not offer the financing documents is protected by these rules. If, as is often the case in the market, the borrower offers its standard documentation, these rules would apply to the borrower. However, given the case law, there are very few provisions that cannot be effective in the text when the agreement is proposed by the lender, such as. B tax provisions, limitation of agent liability or fees for services that benefit only the lender.