Feature
576
Go to page
of
58
The road to Banking Union
Bail-in is at the heart of the post-crisis reform in dealing with failing banks. But in the euro area bail-in must pass a public interest test before it can be used, and bail-in has become the exception not the norm. The norm remains “winding up of the entity under normal insolvency proceedings”. The public interest test should be reversed. The use of bail-in to achieve orderly liquidation under a solvent wind-down strategy should serve as the presumptive path for handling banks that are deemed to be “failing or likely to fail”. Together with the backstop from the European Stability Mechanism (ESM) for the Single Resolution Fund (SRF), the reversal of the public interest test will open the door to the creation of the Single Deposit Guarantee Scheme (SDGS) and to the completion of Banking Union.
13 June 2024LIBOR transition and managing competition law risk
In this article Professor Suzanne Rab responds to the Financial Market Law Commission’s clarion call to consider key competition issues arising from a move to Risk Free Rates (RFR) or similar. She identifies challenges for the competition law regulation of banking benchmarking practices that need to be addressed.
13 June 2024Quincecare and the question of government liability where there has been Bounce Back Loan fraud
Two recent circuit commercial court decisions have considered the scope of a Payment Service Provider’s duty of care to its customer when executing payment instructions (Quincecare duty) in the contexts of identity fraud: Hamblin v World First Limited [2020] EWHC 2383 (Comm) and authorised push payment fraud: Philipp v Barclays Bank UK Plc [2021] EWHC 10 (Comm). This article speculates in the light of these two decisions whether, where scheme funds lent under the Coronavirus Bounce Back Loan Scheme have been misapplied, the British Business Bank could escape liability under the Scheme guarantee on the grounds that the lender has breached its Quincecare duty.
13 June 2024A new Consumer Duty in financial services: a significant change, or more of the same?
The FCA, after prompting by Parliament, is pressing ahead with its proposals for a new consumer duty of care like approach in financial services, albeit in a way that does not in fact impose a duty of care. Instead, changes to the existing Principles of Business are being suggested, which will sit at the head of a pyramid of measures designed to bring about change. This article considers the likelihood that change will in fact be achieved.
13 June 2024Intermediated securities in a securities class action context
The majority of investors in the UK hold their interests through an intermediated chain of securities. The relationships between the investors in the chain are governed by the contracts they have entered into, and the system is largely operated on a “no look through” basis, meaning investors only have rights against their own counterparties. The Law Commission has considered whether to reform the law in this area, in order to give greater rights to ultimate investors. This article considers the impact of any such reform in a securities class action context.
13 June 2024Parent companies’ liability in tort for the acts of their subsidiaries
In this article the authors consider a parent bank’s liability for the torts of its subsidiary in light of the Supreme Court decision in Okpabi v Royal Dutch Shell [2021] UKSC 3.
13 June 2024Financial collateral and Brexit: a comparative perspective
The EU directive on financial collateral (EU Directive 2002/47/EC) (Directive), as implemented in the UK remains (with amendments) on the statute book and has not been directly impacted in any meaningful sense by Brexit. However, given the latitude inherent in the Directive, a marginally fractured legislative landscape has resulted across the member states.
13 June 20242020 vision: expanding the toolbox for European restructurings
Whilst 2020 will be remembered for less positive reasons, restructuring professionals may remember it for the creation of: (i) the “Restructuring Plan” under the UK’s Corporate Insolvency and Governance Act 2020 (CIGA 2020); (ii) the Dutch scheme under Wet homologatie onderhands akkoord (Dutch Scheme); and (iii) the German scheme under the StaRUG (German Scheme). Each bears similarities with the tried and tested English scheme of arrangement but has adopted certain features from the US Chapter 11 process. This article covers some of the important differences between each process that practitioners should be aware of.
13 June 2024Does situs actually matter in disputes concerning bitcoin?
There has been considerable interest in the recent ruling of the High Court in Ion Science Ltd v Persons Unknown (unreported, 21 December 2020)1 as the first in which an English court has considered the question of situs in respect of a Bitcoin. Long described as an “intractable question”, many have taken the case to stand potentially for the proposition that the situs of a cryptoasset is the place where its owner is domiciled.
13 June 2024Scheme meetings in a global pandemic
COVID-19 has fundamentally altered how companies are able to hold meetings of their shareholders and creditors. This article explores how the courts have dealt with these disruptions in the context of schemes of arrangement under Pt 26 of the Companies Act 2006, and under the new restructuring plan regime under Pt 26A of the Companies Act 2006. It demonstrates that the courts have adopted a flexible approach, enabling meetings to be held even where members or creditors cannot physically come together due to social distancing restrictions.
13 June 2024
Go to page
of
58
