Invoice Finance restrictions on contracts to be outlawed from early next year

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Anna Soubry

Minister for Small Business, Anna Soubry (pictured left) has announced that, from early next year, clauses in commercial contracts that obstruct the use of invoice finance (including “ban on assignment” clauses) will be outlawed.

This move is a direct result of the government’s crackdown on Britain’s late payment culture, after it was estimated that British businesses are owed approximately £26.8 billion in overdue payments – a figure that is set to rise.

For some businesses, invoices are the only assets against which they can borrow and larger firms especially can use restrictions in their terms and conditions to prevent supplier invoices being financed. This leads to delayed payments, and cash-flow difficulties for many SMEs.

Jeff Longhurst, chief executive of the Asset Based Finance Association said: ‘This is good news for UK businesses. Invoice finance is a key source of funding for SMEs in particular, and taking effective action against bans on the assignment of invoices will allow more businesses to unlock the funding tied up in their unpaid invoices.”

The Government has consulted a wide range of interested parties on this subject, including business owners, trade associations, lenders, academics and legal practitioners, and this change in the law is the result of feedback received.

A summary of the changes is as follows:

  • Apply to business to business contracts only (and not business to consumer contracts).
  • Extend to all businesses, regardless of size.
  • Exclude financial services contracts.
  • Exclude contracts with interests in land.
  • Do not create any special provisions for supply chain finance arrangements. This will allow suppliers to opt into supply chain financing agreements or seek alternative arrangements with other invoice financers.
  • Begin from commencement of the regulations – changes will not be retrospectively enforced.
  • Only apply where the parties conduct a business to business transaction under English law and one of them carries on business within the UK.

The Government hopes that by implementing these changes, it will directly benefit smaller businesses and reduce the abuse of position that some larger companies have exerted in the past. It is also hoped that it will contribute to making the UK a more attractive place to start and grow a business without fear of cash-flow issues or access to needed funds.

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