Now the other issue on which Finkelstein's view is open to...

Now the other issue on which Finkelstein's view is open to attack:

Finkelstein claims there are two "markets" which are carried out under the same amsla.

The stock borrower market ( which services the hedge fund shorters ) requires borrowers to put up around 110% cash collateral in order to borrow shares from the lender.

The cash borrower market, ( such as the Opes clients ) requires the borrower of the shares ( i.e. Opes ) to put up only 20-80% of the value of the shares as collateral to the stock lender ( ie. the Opes client ).

Its not clear which paradigm the Opes-ANZ lending was carried out under.

It appears that the AMSLA is flexible enough to cover both of these markets which ( according to Finkelstein ) are distinct.

Yet when you look at it, the consequences of a broker default for the long clients is drastically different to that of the short clients. So much so, that it calls into question the legal presumption that the form of the transaction reflects the parties commercial intentions.
( this would make a bit more sense but I just closed the window with finkelsteins actual comments in it sorry )