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As its economy begins to cool, Cleary Gottlieb's Richard Cooper and Adam Brenneman assess the position of those with exposure in the Andean nation

Norton Rose Fulbright partners Nigel Dickinson and Daniel Franks, and associate Charlotte Brown explain the key distinctions between European institutions' plans to regulate securities lending and repo transactions

Maria Jose Cole The Costa Rican Securities Regulator (Superintendencia General de Valores or Sugeval), through the National Council for Supervision of the Financial System (Consejo Nacional de Supervisión del Sistema Financiero or Conassif), recently adopted amendments to the rules governing project finance and securitisation in Costa Rica. The amendments make structural and operational reforms to address the concerns market participants have reiterated regarding limitations set out in the previous regulations, on topics such as asset collateral, related party financing and government approvals.

Luis Gabriel Morcillo-Méndez Lyana De Luca A new collective investment scheme for real estate investments was recently created to manage and develop real estate projects in Colombia. Foreign real estate managers now have the opportunity of creating this type of vehicle in Colombia to be managed from their countries of domicile (without requiring local licensed presence but acting in cooperation with a local fiduciary entity or stock broker that remains liable before the superintendence of finance for the fund's investments). Decree 2142 of 2013 introduced the Real Estate Collective Investment Funds (RECIF), which are closed-end investment collective vehicles that hold at least 75% of their total value in real estate assets. This is a break-point in the local industry. Since 2007, real estate funds have been incorporated under the form of private equity funds (fondos de capital privado) managed by a local administrator and a general partner, which could be either a local or foreign unregistered entity. RECIFs are a separate investment vehicle with specific requirements in governance and managing structure.

Banji Adenusi Recent mezzanine financing in Nigeria continues to adapt globally accepted structures to meet local conditions, especially in view of the recent economic reality. A key concern for foreign lenders relates to the structure of the transaction. This has taken the dimension of junior secured loans subordinated to senior lenders, in which the obligations of the borrower group to repay is passed through special purpose vehicles (SPVs) set up to warehouse the assets of the borrower group, with the SPV maintaining back-to-back service contracts with the borrower group. Two asset financing and expansion transactions in the oil-servicing sector recently adopted this structure. In both instances, assets were split between two SPVs, with the mezzanine lender acquiring a subordinated claim to the assets of the first SPV, and a first ranking claim to the assets and receivables of the second SPV. What is most interesting (although usual from an international standpoint) is the common thread running through these transactions – the insistence by the lenders on the inclusion of cross-default and cross-acceleration provisions in the financing agreements in relation to the borrower's other financings, creating a domino effect on the borrower's obligations. Counterparties often negotiate these provisions, including the instances that trigger the operation of the clauses, along with the restructuring conditions. From the lender's perspective, these provisions are designed to mitigate the broad spectrum default events that a transaction might be exposed to, with a view to expanding the scope under which a mezzanine lender can accelerate outstanding repayments. The borrower's inability to meet its financial obligations to its other financiers raises credible concerns about its ability to meet obligations to the mezzanine lender, with the implication that rather than wait for a payment default under its facility to the borrower, it would exercise the right to sit with the senior lenders as creditors of the borrower.

Tolga Çabakli Isil Ökten In May 2014, a new paragraph was added to the Capital Movements Circular (issued by the Central Bank of Turkey (CBT)) that limits the loans between a financial institution or entity residing outside Turkey (Foreign Lender) and a company residing in Turkey (Turkish Borrower). According to the Circular, a Foreign Lender and Turkish Borrower can not to enter into a loan agreement that: (i) entitles a Turkish Borrower to utilise and repay the facilities on different dates subject to loan limit, (ii) does not include a specified term, (iii) includes a floating interest rate generally, and (iv) works as a debtor's current account (revolving). Upon a further amendment in November 2014, it was been made clear that this provision does not apply to the banks or leasing, factoring and financing institutions, but only to Turkish companies. Despite the lack of any official guidance on this issue, it's understood that the underlying reason behind the change is CBT's intention to ensure that each loan is properly recorded, and to identify the term of each loan so that the applicable taxes can be calculated accordingly. More specifically, the intention of this legislation is to come up with a loan agreement or similar document evidencing each drawdown under a revolving facility agreement. Further, if the Turkish Borrower reaches the total limit specified in the revolving facility, this agreement would be deemed to have been exhausted, and a new credit limit should be opened through a new loan agreement. Each and every loan agreement, including those evidencing the drawdown, should be reported by the intermediary Turkish bank to the CBT. The amendment would prevent the foreign re-borrowings (in respect of the repaid loans) made under a revolving facility exceeding the limit initially agreed and notified to the CBT even if certain portion of such loan is repaid.

A new law came into force on January 1 2015, intended to protect and motivate whistleblowers. A whistleblower is a natural person who, in good faith, reports something they learn of while at work, that could significantly help to expose activities that are against the public interest. A report is made in good faith if the whistleblower, considering the facts of which he is aware and considering his knowledge, is convinced that what he is reporting is accurate. Apart from the enumerated exceptions (such as the protection of classified information, bank secrets and legal services), public interest reports and disclosures are not considered a breach of confidentiality. The primary goal of the law is to protect the whistleblower from retaliation by the employer. An employer can make a legal act or issue a decision relating to the protected whistleblower only with the consent of the whistleblower or with the prior consent of the labour inspectorate. The consent of the labour inspectorate is not required if the employer's act confers a right on the employee or if it is in relation to termination of employment not associated with the employer's evaluation. The labour inspectorate will grant the employer consent for the proposed act toward the protected whistleblower only if the employer can demonstrate that the proposed act has no connection to the report. If the employer cannot demonstrate this, the labour inspectorate will not grant consent. The legal act will be invalid without the prior consent of the labour inspectorate.

Rocky Alejandro L Reyes In 2013, after several decades of implementing measures to solve its economic problems, the Philippines attained an investment grade rating from the big three credit rating agencies. The investment grade rating and the fast pace of economic development in the Philippines should have attracted a lot of foreign direct investment (FDI). However, Philippine laws' restrictions on foreign ownership of land, educational institutions, public utilities and mass media, to name a few, continued to hinder the growth of such investment. Many foreign ownership restrictions on certain business activities remain in the Constitution and statutes. For example, the ownership of private lands is exclusively reserved for Philippine citizens and corporations with at least 60% of its capital owned by Filipino citizens. The exploitation of natural resources, including all modes of potential energy, is subject to the same nationality requirement. This limited foreign equity investment in renewable energy development, such as hydro, geothermal, wind and solar power generation.

Vu Le Bang Under the Ordinance on Foreign Exchange Control of Vietnam, foreign investors participating in business cooperation contacts (FIs) and foreign invested enterprises (FIEs) must open a direct investment capital account (DICA) at an authorised credit institution. Such institution must be one used for investment capital contribution, principal investment capital remittance, profits, and other legitimate receivables. In this regard, the State Bank of Vietnam (SBV) issued Circular 19/2014/TT-NHNN (Circular 19), effective from Sept 25 2014, to provide further guidelines. Notably, under Circular 19, FIs and FIEs are permitted to open a DICA in Vietnamese dong, which was not permitted previously. A DICA should be used to perform FIE receipt and expenditure loan transactions, regardless of the type (whether a domestic or a foreign loan) and term of the loan (whether short-, medium- or long-term). DICAs were originally used to deal with foreign loan transactions prior to Circular 19, in relation to FIE loan transactions. Further, payments of capital and project transactions in relation to FIEs should be performed through a DICA. While welcoming Circular 19, many banks in Vietnam have so far raised concerns over its strict implementation, and over the increased obligations it imposes. Specifically, if domestic loans are strictly subject to a DICA, it will likely become more burdensome for all the relevant parties, including the borrower, lender, and bank controlling the DICA. More importantly, it has been argued that the wording regarding a DICA could be interpreted as either 'is allowed to use' (meaning optional), or 'has to be used for' (meaning compulsory), in relation to certain activities under Circular 19.

Terje Gulbrandsen On December 10 2014, Oslo Børs (the Oslo Stock Exchange) resolved certain amendments to the listing rules, with the new rules entering into force on January 12 2015. Before the amendments, there had been a requirement that at the time of application for listing on Oslo Børs, the main part of the company's activities must not be in a pre-commercial phase. Directive 2001/34/EC on the admission of securities to official stock exchange listing does not contain any requirement for a company to have reached a commercial phase in order to be listed on a stock exchange, and nor is there any such requirement for any stock exchange comparable to Oslo Børs. Despite this, Oslo Børs has until now found it appropriate to apply such a requirement for listing on it.