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Moveable Transactions Reform in Scotland: acquiescence and the perils of over-pledging
This article identifies certain practical challenges in respect of taking Scottish statutory pledges (SSPs) under the recently passed and not-yet-in-force Moveable Transactions (Scotland) Act 2023. It identifies that SSPs will be released if lenders informally acquiesce in the transfer of part of the pledged property, and argues that pledging too many assets, especially current assets, is an avoidable danger to an SSP.
08 April 2024Reliance revisited: is “conscious awareness” a requirement of reliance/inducement in all misrepresentation cases, or a bridge too far?
This article considers the case law in this area and suggests that the approach in Crossley is to be preferred. The rebuttal to Crossley in Loreley comes close to the right answer, in seeking a satisfactory causative bridge in all cases, but wrongly seeks to retain “conscious awareness” as a requirement in all cases and eschew the notion that this is always distinct from assumption. An analysis of the motivator for that conclusion, the need for a sufficient causative bridge, shows the causative bridge can be satisfied without that requirement in some cases of implied representation, and causes unnecessary difficulty with other juridical concepts.
08 April 2024Gatekeeper liability in Spain after Gowex
This article analyses the implications of the Spanish Supreme Court’s judgment of 19 April 2023 in the Gowex case for the liability of gatekeepers operating in Spain. It examines and offers new insights on the circumstances under which gatekeepers may have a duty to protect investors from damage owing to the existence of a special relationship with them. The Supreme Court’s judgment, and the findings of this article, embrace an expansive view of gatekeepers’ liability towards investors and, therefore, are of major relevance for gatekeepers operating or aiming to operate in Spain.
08 April 2024From PSG’s strip to the Gaza Strip: critical issues for those managing Qatar’s money after 7 October
In this article, the author outlines the issues that directors of offshore alternative investment funds and their investment managers need to consider when managing Qatari sovereign wealth.
08 April 2024Retained EU Law: a tale of two statutes
The Retained EU Law (Revocation and Reform) Act 2023 (REULA) and the Financial Services and Markets Act 2023 received royal assent on the same day. One is generally applicable; the other is specifically related to financial services and markets regulation. Both allow for the revocation, restatement and modification of retained EU law, though their approaches differ. This article will compare the mechanisms in each to argue that a single regime, based on the approach in REULA, would have been preferable.
08 April 2024Availability of costs for individuals who successfully challenge an FCA decision against them
The UK Upper Tribunal recently ordered the Financial Conduct Authority (FCA) to pay some of the costs of two individuals who successfully challenged FCA decisions made against them, partly due to its unreasonable conduct. Such orders are rare. This article considers the circumstances in which individuals who have successfully overturned FCA decisions against them might be able to recover some of the costs they have incurred in defending the regulatory action taken against them.
08 April 2024Transferring legal title to a digital asset: shared and limited control arrangements (Part 2)
In this article, Hin Liu proposes a three-step structure for deciding what the rule for the transfer of title to a digital asset should be in the shared or limited control context. The structure provides a framework that can be applied by a legislature or court (or law reform body).
08 April 2024Drop downs and up-tiers in English law loan documentation
Over the past few years there has been a focus on whether loan documentation can be used to create additional priority debt, often as a result of transactions that were not anticipated by incumbent lenders. Various labels have been attached to these types of transaction, with the following becoming common currency: “drop down” and “up-tiering” transactions. While they have different component parts, they result in participating creditors gaining a priority position viz-à-viz other creditors in the borrower’s capital structure. A number of articles discussing aspects of these transactions have been circulated by market participants and the LSTA has published a very helpful market advisory on drafting for New York law credit agreements. This article takes a look at these topics in English law documentation.
08 April 2024Part 26A Restructuring Plans: how significant is the Court of Appeal’s judgment in Adler?
The judgment sets out how a court should approach exercising its cross-class cram-down power, emphasising that any differential treatment of a dissenting class must be commercially justified where that class would be at least partially in-the-money in the “relevant alternative”. It also contains valuable reminders of best practice when using the Pt 26A procedure.
08 April 2024UK SDR: setting the ESG blueprint for the world?
The new sustainability disclosure requirements and investment labels regime was introduced by the Financial Conduct Authority (FCA) to improve clarity and address the risks of greenwashing in the UK financial markets. The policy includes four sustainability labels (all of which have the same status – ie there is no hierarchy) and an anti-greenwashing rule applicable to FCA-regulated firms. Overall, the FCA have taken a very pragmatic approach (eg in areas like minimum portfolio composition and temporary breaches), which also avoids many of the issues posed by the EU Sustainable Finance Disclosure Regulation regime by contrast (which was intended to be a disclosure regime but has become a de facto labelling regime). However, some uncertainty remains, notably around the practical adoption of the newly introduced labels as well as the application of the regime to overseas funds, which are not currently covered. Implementation of the regime by firms would require careful examination of the new rules in light of the principle and outcomes-based approach taken by the FCA. Helpfully, the rules have been written with interoperability and international convergence in mind – and the overall pragmatic and outcomes-based approach is likely to provide a useful ESG product labelling and disclosure regime for international regulators.
08 April 2024
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