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29 October 2018
Basic Outlawing of Prohibitions
Additional Protection for Invoice Financiers
Supplier Must Be an SME
When to Determine if Supplier Is an SME
How to Determine if Supplier Is an SME
Government Contracts and National Security
After Start Date
Audits and Surveys
The government recognises that businesses are dependent on adequate cash flow and that invoice finance is an important way of securing such working capital. Currently, around 40,000 firms in the UK use invoice finance. This is estimated to be only 10% of the number of businesses that could potentially make use of it.(1) Currently 311 billion(2) (14% of UK's GDP) is supported through invoice finance.
Assignments of receivables are an essential feature of factoring and invoice discounting. Commercial contracts routinely contain provisions that prohibit the assignment of invoices due under the contract. If asked to fund such invoices, financiers have to use workarounds, such as requesting the debtor to allow assignment (which is usually refused) or using a separate trust account or a power of attorney. This increases the cost of providing invoice finance and, if the measures are not cost effective, then a facility will be refused or the funds available substantially reduced.
For years, powerful purchasers have flouted the credit terms of their weaker SME suppliers or imposed unreasonable credit terms on them.(3) If invoice finance is then provided, such purchasers often refuse to deal with the financier by contractually inserting in their purchase conditions either a prohibition on assignment of the invoices or confidentiality terms. Such prohibitions and terms reflect the purchasers' resentment of the collective commercial clout and professional expertise of invoice financiers.
In 2014 the Government recognised the benefit of outlawing such prohibitions on the assignment of receivables and set about establishing the legal framework. The Asset Based Finance Association (ABFA) was approached and with our help formulated the provisions for a new law.
The outcome was a clear provision in the Small Business, Enterprise and Employment Act 2015 (Act) allowing regulations to be made to "invalidate certain restrictive terms of business contracts".(4) These regulations have now been drafted and await Parliamentary approval.
The new law will apply to SME suppliers, but only in B2B agreements.
These are The Business Contract (Assignment of Receivables) Regulations 2018. These have been under discussion for the past three years with the Dept. of Business, Energy and Industrial Strategy (BEIS), where ABFA (now part of UK Finance) and Edward Wilde, as their legal counsel, have negotiated and redrafted the wording to ensure the best possible outcome for invoice financiers and their SME clients. This was undertaken in the face of strong opposition from City of London interests determined to preserve their unfettered freedom to contract as they wished.
The finally agreed regulations should be law in the autumn and come into effect for sales contracts entered into on and after 31 December 2018.
This word enters our legislation for the first time, to replace the more familiar usage of "book debt" and "debt". Using current language from US, Canadian and Australian laws, the full definition is:
""receivable" is a right (whether or not earned by performance) to be paid any amount under a contract (other than a contract mentioned in regulation 4) for the supply of goods, services or intangible assets..."(5)
The Regulations boldly state(6) that:
a term in a contract has no effect to the extent that it "prohibits or imposes a condition or other restriction on the assignment of a receivable arising under that contract or any other contract between the same parties".
Anti-avoidance regulations, drafted and promoted by Squire Patton Boggs lawyers, extend the restraining provisions so that a contractual term (such as a confidentiality clause) is ineffective if it:
These should prevent confidentiality clauses and other devices being used to obstruct an invoice financier from approving, funding or collecting a receivable.
The regulations contain a list of matters that an assignee must be able to obtain without, in effect, breaching any confidentiality clause imposed on the client. They include details of the debtor, the goods, the invoice value, the wording of any ban on assignments, VAT, credit period and defences or set-offs.(8)
This all important term is not defined, but the regulations are clearly intended to apply to outright purchases under invoice financing facilities. Security assignments are also likely to be covered. However, prohibitions against trusts of receivables will probably still be effective.
Receivables arising under certain types of contracts, listed in regulation 4, will still be subject to effective prohibitions on assignment. The most important are contracts:
concerning any interest in land, e.g. sales or leases
To benefit from the regulations, the supplier must be below the medium sized thresholds enabling it to take advantage of the special accounting regimes applicable to SMEs under the Companies Act 2006.(9) A medium sized company or LLP by this definition must have at least two out of three of the following:
Certain companies, even though medium sized, are precluded from this definition,(10) including:
There are complex provisions in the regulations which deny some SMEs the benefit of the regulations even though they are SMEs. So bans on assignment will still be effective if the supplier is part of a large group of connected businesses(11) that, together, exceed the above thresholds. KYC on this aspect of a client will be very important to ensure that a client which is an apparent SME is not actually part of a large group and thus subject to effective bans on assignment.
The SME test applies to LLPs and companies wherever in the world they are established or incorporated, provided they would qualify as SMEs if incorporated in the UK.
Sole traders, unlimited partnerships or unlimited companies, wherever established, can ignore bans on assignment, whatever their turnover, balance sheet or employees.
Special Purpose Vehicles, however small, will always be subject to effective bans on assignment.
At the time the receivable is assigned, which for all practical purposes will be when the receivable is created. Whole turnover assignments in master agreements should be treated only as agreements to assign.
Look at its status as shown in its accounts for the last financial year before the receivable is assigned. A check also needs to be made to ensure that it is not part of a large group. A new firm can be treated as an SME until it files its first set of accounts, unless it is a member of a large group. Checks will need to be done annually upon receipt of clients' accounts.
The regulations generally apply to contracts governed by English or Northern Irish law where one of the parties carries on business in the UK. Clients' sale contracts subject to Scots law are not covered. However, it is to be hoped that similar rules will be passed in Scotland in due course.(12)
Conversely, the regulations do not generally apply to contracts governed by foreign laws. However, there is an anti-avoidance provision(13) which outlaws any attempt to circumvent the regulations by choosing a foreign law which permits bans on assignment. For example, a sale contract generally governed by English law, but with an assignment prohibition specifically subject to Irish law (where bans on assignment are still permitted) will still be treated as being subject to the regulations.
Because of the legal doctrine of Crown Immunity, neither the Act nor the Regulations apply to UK central government ministries and departments, which will still be able to impose effective prohibitions. However, suppliers should be aware when negotiating government contracts that such prohibitions have long been discouraged. In 2008 Edward Wilde, on behalf of ABFA, negotiated a protocol with the Office of Government Commerce (OGC) which led to OGC's Procurement Policy Note 07/08.(14) This explicitly changed government policy to permit the assignment of debts and rewrote OGC's model terms and conditions.
This helpful relaxation is now subject to the new regulations which will effectively allow prohibitions where the contract "concerns national security interests".(15) This phrase is not defined, but will be subject to a conclusive certificate from the Secretary of State at BEIS. However, it is clear from other legislation that national security is a wide ranging concept and not just limited to defence matters. Thus, a sale between a main defence contractor and its subcontractor could be subject to an effective prohibition.
As soon as Parliament approves the Regulations they will become effective for all new sales contracts entered into by suppliers on or after 31 December 2018. Prohibitions in existing contracts will remain effective. The position under existing long term contracts with call off provisions will need careful consideration, particularly if there is no "cut-off clause" providing for each delivery to be a separate contract. It will then be safest to treat such master prohibitions as effective and attempt the usual work rounds as at present.
It will still be necessary for invoice financiers to check their clients' sales contracts for prohibitions. These will still be effective if:
These regulations are complex and this note cannot go into all the detail. Advice should always be taken on any issues arising. In particular, additional warranties and undertakings should be inserted into master agreements with clients.
For further information on this topic please contact Edward Wilde, Paula Laird or Andrew J Knight at Squire Patton Boggs by telephone (+44 113 284 7000) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Squire Patton Boggs website can be accessed at www.squirepattonboggs.com.
This article has been reproduced in its original format from Lexology – www.Lexology.com.
(1) See paragraph 7.2 of BEIS Memorandum about the Regulations at https://www.legislation.gov.uk/ukdsi/2017/9780111160305/pdfs/ukdsiem_9780111160305_en.pdf.
(3) The government estimates this affects 85% of small businesses. See paragraph 6 the Explanatory Notes to the Act at https://www.legislation.gov.uk/ukdsi/2017/9780111160305/pdfs/ukdsiem_9780111160305_en.pdf.
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