Feature

Hacked crypto-accounts, the English tort of breach of confidence and localising financial loss under Rome II

In this article the authors consider Fetch.AI Ltd v Persons Unknown (15 July 2021, Unreported), an interim application made ex parte and heard in private, which demonstrates a concerning potential for divergence between the English and EU courts on the application of the Rome II Regulation.

A mortgagee’s accountability for mortgage valuations following Shokrollah-Babaee v EFG Private Bank

This article considers the judgment of Miles J in Shokrollah-Babaee v EFG Private Bank Limited  [2023] EWHC 3270 (Ch), how it affects the relationship between mortgagees, valuers and mortgagors (to the extent that it can fairly be described as a relationship at all) and its wider impact.

Non-notification receivables financing: can the assignor sue without joining the assignee?

Generalised statements in recent cases appear to say that an assignor cannot sue the debtor without joining the assignee to the action. This article argues that this should not be the case where the debtor has not been notified of the assignment, and that the statements in the cases are weak, if any, authority in relation to non-notification receivables financing. 

This article is based on the full chapter published in Peel and Probert: Shaping the Law of Obligations: Essays in Honour of Professor Ewan McKendrick KC,  OUP 2023, ISBN: 9780198889762. 

The rule in Clayton’s Case: its application in non-banking relationships

The rule in Clayton’s Case  originated in banking relationships and its application is most often seen in that context. Recently there has been a trend to disapply the rule, in cases where multiple claimants seek to trace into a single fund. This article looks at a recent decision of the Court of Appeal which turned on the application of the rule in a non-banking context, and in particular on the timing of the appropriation of payments which is deemed to take place pursuant to the rule.

Going cashless: the treatment of cryptoassets in insolvency proceedings

The transaction volume of cryptoassets and associated products has witnessed rapid expansion, with recent reports indicating that the cumulative market value for cryptocurrencies alone has now exceeded $3trn. This growth has, in turn, increased the likelihood of both cryptoasset-related businesses (such as exchanges and custodian wallet providers) entering into formal insolvency processes, and cryptoassets featuring within insolvency proceedings. Accordingly, this article considers how cryptoassets are treated within English insolvency law, focusing on their classification as property, jurisdictional issues arising from their decentralised nature, the enforcement of security interests, and the challenges of valuation and distribution.

The dynamics of insurers as lenders in the NAV market

In this article, Angela Batterson of Cadwalader in New York, considers the factors attracting insurance companies to the NAV financing space and some typical deal terms.

Channel Islands and statutory fences: obtaining evidence for use overseas

The recent decision, Green v CT Group Holdings Limited , adds to existing case law on the point that Norwich Pharmacal  applications cannot be used to obtain evidence for use in proceedings overseas. The court again found that the route to obtaining that evidence is “fenced off” by statute, and a letter of request must be issued to the English court from overseas instead. That process is however unsuitable for an urgent asset-trace in response to a fraud. Although controversial, there is a similar but separate route to obtaining information about assets and their whereabouts for use overseas under another statute.

Artificial intelligence in syndicated lending

Banks are technology companies subject to vertical (that is, industry-specific) regulation. The ABA Banking Journal reports that: “This region [North America], with a history of strong investment in banks’ technology foundations, will see IT spending grow to $100.4 billion by 2027…”. AI adoption and deployment forms part of this anticipated spend. Alongside AI, tokenisation of debt instruments will create a new model in syndicated loan markets. This article explores the current position on AI in syndicated lending.

Pitfalls with board resolutions authorising loan facilities

Directors sometimes express doubt as to what role a company’s board should play, once authority to negotiate and enter into a loan facility has been delegated to one or more of their number. If new terms are offered or circumstances change, which alter the suitability of the proposed finance, what can, or should the remaining directors do? In turn, what should the appointed director(s) do? This article explores some of the issues and considers how some pitfalls might be avoided.

Fund finance and sustainability: new guidance on the application of the SLLPs

Over recent years there has been significant growth and development in the fund finance industry, which has expanded over the last decade into a global market now worth more than US$600bn, according to the asset manager abrdn. As the market has continue to mature, the variety of tools available to investors (which include private equity, private credit and venture capital) to fund their operations has expanded considerably beyond the traditional subscription facility to encompass many more types of fund financing. One such innovation has been the introduction and adoption of sustainable finance, either by the way of use of proceeds facilities (green loans) or sustainability-linked loan facilities. 

In light of the increased use of ESG-linked financing in the fund finance market, on 5 March 2024 the Loan Market Association, Asia Pacific Loan Market Association, Loan Syndications and Trading Association and the Fund Finance Association published 'A Guide to the Application of the Sustainability Linked Loan Principles in Fund Finance' (Guide), which provides practical guidance to market participants on how the Sustainability Linked Loan Principles can be used the fund finance market, as well as identifying and addressing challenges and considerations  particular to fund finance transactions. 

In this article we will examine the use of sustainability-linked financing in the fund finance market and consider some of the issues raised by the Guide.