The Regulations introduce a framework for the creation of new type of Cell Company acting as a special purpose vehicle in Malta: the Securitisation Cell Company (the SCC).
The framework allows for the segregation of different sets of assets and risk instruments within a single special purpose vehicle (the Securitisation Cell Company) thus allowing for the launch of multiple asset-backed or insurance-linked securities without incurring any risk of cross-contamination between the different sets of creditors and investors.
The regulations deal with two types of SCCs:
- SCCs carrying on the business of securitisation vehicles
- SCCs carrying on business as reinsurance special purpose vehicles.
These two types of securitisation cell companies are regulated differently according to whether they carry on regulated activity or otherwise.
Nature of SCC
An SCC is a single legal entity made up of a non-cellular part (the core) and an unlimited number of cells. Assets and liabilities of SCCs are segregated into cells and treated as separate patrimonies from each other and from the core of the SCC. Cells may also be used for the allocation of different insurance risks for the purpose of structuring and issuing insurance-linked securities.
An SCC therefore holds two distinct types of assets:
- Cellular assets: assets attributable to each of the cells of the SCC
- Non-cellular assets: assets which are not attributable to any cell.
Despite the segregation of assets and liabilities that exists between cells and the core and among the cells themselves, a cell has no separate legal identity.
An SCC may either enter into securitisation transactions (in accordance with the Securitisation Act) or to assume risks as a reinsurance special purpose vehicle (in accordance with the Reinsurance Special Purpose Vehicles Regulations).
The SCC may enter into multiple securitisation transactions or risk transfer arrangements in respect of any of its cells, and each cell would be protected by the provisions for ring-fencing in the Regulations.
A securitisation cell company may not enter into securitisation transactions or risk transfer arrangements in respect of its non-cellular assets.
A creditor of a cell has rights to the assets of that particular cell only and has no recourse to the assets of other cells or the non-cellular assets.
Any liability not attributable to a particular cell is the liability solely of the company’s non-cellular assets.
Regulation of SCCs
SCCs carrying on the business of Securitisation Vehicles
- Must give notice as per Article 18 of Securitisation Act.
- Cannot commence business with respect to any cell, until giving notice that it intends to enter into securitisation transactions in respect to that cell.
- Public securitisation vehicle: requires authorisation, and cell may only be created with approval of competent authority.
SCCs carrying on business as Reinsurance Special Purpose Vehicles
- Requires authorisation of the competent authority granted in terms of the Reinsurance Special Purpose Vehicles Regulations, and a cell may only be created with the prior approval of the competent authority.
The Securitisation Act applies to SCCs carrying on the business of securitisation vehicles and their cells.
The Reinsurance Special Purpose Vehicles Regulations apply to SCCs carrying on the business of reinsurance special purpose vehicles.