Financial Services and Markets Bill - continued        House of Lords
PART VII, CONTROL OF BUSINESS TRANSFERS - continued

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Sanction of the court for business transfer schemes.     109. - (1) This section sets out the conditions which must be satisfied before the court may make an order under this section sanctioning an insurance business transfer scheme or a banking business transfer scheme.
 
      (2) The court must be satisfied that-
 
 
    (a) the appropriate certificates have been obtained (as to which see Parts I and II of Schedule 12);
 
    (b) the transferee has the authorisation required (if any) to enable the business, or part, which is to be transferred to be carried on in the place to which it is to be transferred (or will have it before the scheme takes effect).
      (3) The court must consider that, in all the circumstances of the case, it is appropriate to sanction the scheme.
 
Effect of order sanctioning business transfer scheme.     110. - (1) If the court makes an order under section 109(1), it may by that or any subsequent order make such provision (if any) as it thinks fit-
 
 
    (a) for the transfer to the transferee of the whole or any part of the undertaking concerned and of any property or liabilities of the authorised person concerned;
 
    (b) for the allotment or appropriation by the transferee of any shares, debentures, policies or other similar interests in the transferee which under the scheme are to be allotted or appropriated to or for any other person;
 
    (c) for the continuation by (or against) the transferee of any pending legal proceedings by (or against) the authorised person concerned;
 
    (d) with respect to such incidental, consequential and supplementary matters as are, in its opinion, necessary to secure that the scheme is fully and effectively carried out.
      (2) An order under subsection (1)(a) may-
 
 
    (a) transfer property or liabilities whether or not the authorised person concerned otherwise has the capacity to effect the transfer in question;
 
    (b) make provision in relation to property which was held by the authorised person concerned as trustee;
 
    (c) make provision as to future or contingent rights or liabilities of the authorised person concerned, including provision as to the construction of instruments (including wills) under which such rights or liabilities may arise;
 
    (d) make provision as to the consequences of the transfer in relation to any retirement benefits scheme (within the meaning of section 611 of the Income and Corporation Taxes Act 1988) operated by or on behalf of the authorised person concerned.
      (3) If an order under subsection (1) makes provision for the transfer of property or liabilities-
 
 
    (a) the property is transferred to and vests in, and
 
    (b) the liabilities are transferred to and become liabilities of,
  the transferee as a result of the order.
 
      (4) But if any property or liability included in the order is governed by the law of any country or territory outside the United Kingdom, the order may require the authorised person concerned, if the transferee so requires, to take all necessary steps for securing that the transfer to the transferee of the property or liability is fully effective under the law of that country or territory.
 
      (5) Property transferred as the result of an order under subsection (1) may, if the court so directs, vest in the transferee free from any charge which is (as a result of the scheme) to cease to have effect.
 
      (6) An order under subsection (1) which makes provision for the transfer of property is to be treated as an instrument of transfer for the purposes of the provisions mentioned in subsection (7) and any other enactment requiring the delivery of an instrument of transfer for the registration of property.
 
      (7) The provisions are-
 
 
    (a) section 183(1) of the Companies Act 1985;
 
    (b) Article 193(1) and (2) of the Companies (Northern Ireland) Order 1986.
      (8) If the court makes an order under section 109(1) in relation to an insurance business transfer scheme, it may by that or any subsequent order make such provision (if any) as it thinks fit-
 
 
    (a) for dealing with the interests of any person who, within such time and in such manner as the court may direct, objects to the scheme;
 
    (b) for the dissolution, without winding up, of the authorised person concerned;
 
    (c) for the reduction, on such terms and subject to such conditions (if any) as it thinks fit, of the benefits payable under-
 
      (i) any description of policy, or
 
      (ii) policies generally,
 
    entered into by the authorised person concerned and transferred as a result of the scheme.
      (9) If, in the case of an insurance business transfer scheme, the authorised person concerned is not an EEA firm, it is immaterial for the purposes of subsection (1)(a), (c) or (d) or subsection (2), (3) or (4) that the law applicable to any of the contracts of insurance included in the transfer is the law of an EEA State other than the United Kingdom.
 
      (10) The transferee must, if an insurance or banking business transfer scheme is sanctioned by the court, deposit two office copies of the order made under subsection (1) with the Authority within 10 days of the making of the order.
 
      (11) But the Authority may extend that period.
 
      (12) "Property" includes property, rights and powers of any description.
 
      (13) "Liabilities" includes duties.
 
      (14) "Shares" and "debentures" have the same meaning as in-
 
 
    (a) the Companies Act 1985; or
 
    (b) in Northern Ireland, the Companies (Northern Ireland) Order 1986.
      (15) "Charge" includes a mortgage (or, in Scotland, a security over property).
 
Appointment of actuary in relation to reduction of benefits.     111. - (1) This section applies if an order has been made under section 109(1).
 
      (2) The court making the order may, on the application of the Authority, appoint an independent actuary-
 
 
    (a) to investigate the business transferred under the scheme; and
 
    (b) to report to the Authority on any reduction in the benefits payable under policies entered into by the authorised person concerned that, in the opinion of the actuary, ought to be made.
Rights of certain policyholders.     112. - (1) This section applies in relation to an insurance business transfer scheme if-
 
 
    (a) the authorised person concerned is an authorised person other than an EEA firm qualifying for authorisation under Schedule 3;
 
    (b) the court has made an order under section 109 in relation to the scheme; and
 
    (c) an EEA State other than the United Kingdom is, as regards any policy included in the transfer which evidences a contract of insurance, the State of the commitment or the EEA State in which the risk is situated ("the EEA State concerned").
      (2) The court must direct that notice of the making of the order, or the execution of any instrument, giving effect to the transfer must be published by the transferee in the EEA State concerned.
 
      (3) A notice under subsection (2) must specify such period as the court may direct as the period during which the policyholder may exercise any right which he has to cancel the policy.
 
      (4) The order or instrument mentioned in subsection (2) does not bind the policyholder if-
 
 
    (a) the notice required under that subsection is not published; or
 
    (b) the policyholder cancels the policy during the period specified in the notice given under that subsection.
      (5) The law of the EEA State concerned governs-
 
 
    (a) whether the policyholder has a right to cancel the policy; and
 
    (b) the conditions, if any, subject to which any such right may be exercised.
      (6) Paragraph 6 of Schedule 12 applies for the purposes of this section as it applies for the purposes of that Schedule.
 
 
Business transfers outside the United Kingdom
Certificates for purposes of insurance business transfers overseas.     113. Part III of Schedule 12 makes provision about certificates which the Authority may issue in relation to insurance business transfers taking place outside the United Kingdom.
 
Effect of insurance business transfers authorised in other EEA States.     114. - (1) This section applies if, as a result of an authorised transfer, an EEA firm falling within paragraph 5(d) of Schedule 3 transfers to another body all its rights and obligations under any UK policies.
 
      (2) This section also applies if, as a result of an authorised transfer, a company authorised in an EEA State other than the United Kingdom under Article 27 of the first life insurance directive, or Article 23 of the first non-life insurance directive, transfers to another body all its rights and obligations under any UK policies.
 
      (3) If appropriate notice of the execution of an instrument giving effect to the transfer is published, the instrument has the effect in law-
 
 
    (a) of transferring to the transferee all the transferor's rights and obligations under the UK policies to which the instrument applies, and
 
    (b) if the instrument so provides, of securing the continuation by or against the transferee of any legal proceedings by or against the transferor which relate to those rights and obligations.
      (4) No agreement or consent is required before subsection (3) has the effects mentioned.
 
      (5) "Authorised transfer" means-
 
 
    (a) in subsection (1), a transfer authorised in the home State of the EEA firm in accordance with-
 
      (i) Article 11 of the third life directive; or
 
      (ii) Article 12 of the third non-life directive; and
 
    (b) in subsection (2), a transfer authorised in an EEA State other than the United Kingdom in accordance with-
 
      (i) Article 31a of the first life directive; or
 
      (ii) Article 28a of the first non-life directive.
      (6) "UK policy" means a policy evidencing a contract of insurance (other than a contract of reinsurance) to which the applicable law is the law of any part of the United Kingdom.
 
      (7) "Appropriate notice" means-
 
 
    (a) if the UK policy evidences a contract of insurance in relation to which an EEA State other than the United Kingdom is the State of the commitment, notice given in accordance with the law of that State;
 
    (b) if the UK policy evidences a contract of insurance where the risk is situated in an EEA State other than the United Kingdom, notice given in accordance with the law of that EEA State;
 
    (c) in any other case, notice given in accordance with the applicable law.
      (8) Paragraph 6 of Schedule 12 applies for the purposes of this section as it applies for the purposes of that Schedule.
 
 
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