Feature

Delivering valid notices of assignment: s 136 in 2024

It is well established that emails satisfy a requirement for “writing” and are documents. It is also well known that many documents in writing need to be authenticated by the writer’s signature. There are now multiple mechanisms that allow for electronic signatures as a means of authentication of an electronic document. The use of email and other electronic communications to give notice to a debtor of the fact of a statutory assignment under s 136 of the Law of Property Act 1925 is also widespread. The question as to whether electronic notice of an assignment under s 136 is valid has still not been to the Court of Appeal. Case law is confused on the point. This article suggests once again the better view is that it should be valid and the contrary case law should not be followed.

Enhancing trust in ESG ratings: welcome moves to fix the ecosystem

In this article, we consider the encouraging progress being made in the introduction of voluntary and mandatory solutions to address identified shortcomings and promote greater consistency, reliability and trust in the market for ESG ratings.

Joining the dots: a wider use for AML e-verification tools?

Everything is electronic nowadays. Globalisation, technology and Covid have all played a significant part in driving legal changes that mean it is rare not to be able to sign documents, open bank accounts or indeed do most things using just a keyboard or a click. But can established processes help to mitigate the risks of more newly permitted e-signatures? This article looks at how anti-money laundering identity verification processes can help with verification of document signatories.

Does the restoration of Crown preference mean that guarantors can get off the hook?

When the economic landscape changes, people often look to wriggle out of their financial commitments. Just such a change occurred in 2020, when HMRC’s status as a preferential creditor of insolvent companies was restored.

Merricks v Mastercard: the litigation risks for the financial services sector

The recent decisions in the Merricks v Mastercard  litigation will most obviously have a significant impact on the competition class actions regime, but may also have repercussions for the wider litigation landscape, particularly in relation to mass consumer claims. In this article, we consider the potential litigation risks for the financial services sector.

ETFs: could crisis be looming?

Exchange traded funds, or ETFs, are one of the most successful financial innovations in the modern era; of similar vintage and, arguably, significance to mortgage-backed securities, but to date thankfully not (yet) as contorversial. 

This article looks at their key features, contextualises their inexorable rise by reference to some performance figures and, by reference to two examples of their higher risk synthetic variants, leveraged and inverse ETFs, highlights both the potential systemic risks they pose to the stability of global financial markets and regulators’ preparedness to address those risks.  

Contractual continuity for “tough legacy” contracts

With time ticking until the end of 2021 when at least certain settings of LIBOR will cease, the UK authorities are finalising their plans for “tough” legacy through the means of legislation and powers granted to the FCA. In this article, we examine such legislation and powers with a comparative eye to alternative solutions in the US and the EU.

The new NPL Directive: an uncertain path ahead

Almost four years ago – in March 2018 – the European Commission proposed a directive intended to promote the growth of the secondary market in non-performing loans (NPLs). This was part of a broader plan to help reduce the burden of NPLs on European bank balance sheets. After a long and winding legislative road, the European Parliament approved the final version of the Directive on 19 October 2021. The same text was approved by the Council on 9 November 2021 and is likely to be published in the Official Journal of the EU in the coming months. In this article we set out some of the features of the new Directive and areas of likely market concern (and especially for the securitisation market) arising out of it.

Unravelling the Travel Rule: AML requirements for cryptoasset businesses

The Financial Action Task Force (FATF) recently updated its guidance for Virtual Assets and Virtual Asset Service Providers (VASPs) in October 2021 including on its Recommendation 16 that certain transfers of cryptoassets must be accompanied with identifiable originator and beneficiary information. The application of Recommendation 16 to VASPs has caused controversy, as it is regarded as being very difficult to comply with by the industry. This article explores whether the proposed implementation of the Travel Rule in the UK addresses any of the commonly cited practical difficulties with compliance (which are particularly pronounced for unregulated firms or start-ups that may be unaccustomed to being scrutinised in this way) in light of the most recent guidance.

Implementation of the remaining Basel III standards in the UK

The aim of this article is to provide an overview of the Prudential Regulation Authority’s rules (PRA Rules) implementing the remaining Basel III standards in the UK, to highlight any key deviations from the underlying Basel III standards and the equivalent EU CRR2 regime, and to discuss potential challenges that these deviations might create for banking groups. In addition, this article includes responses to frequently asked questions in relation to the above.