The field for potential interesting considerations could be for instance Article 46 of the draft CSD Regulation (Applicable law to proprietary aspects) – see box.
Article 46 of the draft CSD Regulation
(Applicable law to proprietary aspects)
1. Any question with respect to proprietary aspects in relation to financial instruments held by a CSD shall be governed by the law of the country where the account is maintained.
2. Where the account is used for settlement in a securities settlement system, the applicable law shall be the one governing that securities settlement system.
3. Where the account is not used for settlement in a securities settlement system, that account shall be presumed to be maintained at the place where the CSD has its habitual residence as determined by Article 19 of Regulation (EC) No 593/2008 of the European Parliament and the Council.
4. The application of the law of any country specified in this Article shall comprise the application of the rules of law in force in that country other than its rules of private international law.
The rule established by the said provision prescribing to apply the law of the country where the account is maintained to any question with respect to proprietary aspects in relation to financial instruments held by a CSD resembles Article 10(5) of the Registry Regulation (which stipulates: ‘Accounts shall be governed by the laws and fall under the jurisdiction of the Member State of their administrator and the units held in them shall be considered to be situated in that Member State’s territory) and also Article 9 (Conflict of laws) of the Financial Collateral Directive (see: Extending Financial Collateral Directive to spot emissions allowances trade – why not?).