The UK recently established a new Emissions Trading Scheme following the UK’s departure from the EU. This article explores the legal nature of carbon credits under the new UK Emissions Trading Scheme by reflecting upon the legislative framework underlying the scheme, the case law surrounding carbon credits under the EU Emissions Trading Scheme and recent developments regarding the legal status of cryptocurrencies as a form of intangible property.
26 March 2024Guarantees are essential features of commercial financing transactions. But the nature of the guarantor’s liability may vary significantly. Is the guarantor liable only when the underlying obligor has defaulted on its obligations (a “see to it” guarantee) – or as soon as the guarantee’s beneficiary makes a good faith demand (an “on demand” guarantee)? Shanghai v Reignwood [2021] EWCA 1147 (Court of Appeal) illustrates the importance of the distinction, and how it can turn on fine points of construction.
26 March 2024
In the aftermath of the global financial crisis, private credit institutions emerged as being able to offer flexible financing solutions on short timeframes when compared to more heavily regulated banks. Traditional bank lending inevitably had slower processes and more limited scope to support nuanced credits. The strengths of the private credit model may well permit those institutions to advance their position further in the post-pandemic landscape. Whilst all private credits funds have as their objective a strong economic return, the context of each investment will determine the optimal approach each institution will employ to achieve that result.
26 March 2024In Lehman Brothers Holdings Scottish LP 3 v Lehman Brothers Holdings Plc (In Administration) [2021] EWCA Civ 1523, the Court of Appeal determined the priority of competing subordinated claims over the £800m to £1bn available in the distributing administration of LB Holdings Intermediate 2 Ltd and considered the common law position regarding part payment of a debt by a surety, as well as the rule against double proof.
26 March 2024This article deals with the proposals of the City of London Law Society (CLLS) Financial Law Committee to the Law Commission in connection with their review of the law on deeds, likely to be one of the projects in their 14th Programme of Law Reform. Proposals focus on resolving a number of issues related to the execution of deeds, including in the form of electronic documents, as well as resolution of some conflict of laws issues, clarification of when a deed is required and of the status of a “failed” deed.
25 March 2024In this article, the authors consider the benefits of, and legal issues with, Exchange 4.0, a model that addresses current questions about how distributed ledger technology (DLT) can change market infrastructure, clearing, settlement and custody systems.
25 March 2024Following the Russian invasion of Ukraine on 24 February 2022, the Economic Crime (Transparency and Enforcement) Act 2022 (ECA) made swift passage onto the statute books. Part 2 reforms the regime governing Unexplained Wealth Orders (UWOs). The Act was heralded by the Home Secretary as “remov[ing] key barriers to the use of unexplained wealth orders”, “chang[ing] the entire way in which UWOs are operationalised”, and giving law enforcement agencies (LEAs), particularly the National Crime Agency (NCA), the “legal basis, legal powers and protections they need” (Hansard, 7.3.22). This article explores the reforms to UWOs, analyses whether they address shortcomings in the regime as initially implemented, and discusses whether the government’s intentions are likely to be fulfilled.
25 March 2024Digital (or crypto) assets are currently attracting considerable scrutiny from global regulators and generating voluminous copy for the world’s media. However, the digital assets spectrum is incredibly wide. Although using the same type of underlying technology as cryptocurrencies, digital bonds are strikingly different: they are (typically) regulated instruments, supported by new legislation in key jurisdictions and by some high-quality issuers. In this article, the authors consider both the allure and the challenges of digital bonds.
25 March 2024In the recent case of Wang v Darby [2021] EWHC 3054 (Comm), the High Court considered the legal characterisation of an agreement pursuant to which the claimant and defendant exchanged fixed quantities of XTZ (Tez) and BTC (Bitcoin) with the understanding that there would be a mutual restoration following an agreed period of two years; and that the defendant would use the XTZ transferred to him by the claimant during those two years to participate in maintaining the Tezos blockchain, accounting to the claimant for any profits made thereby upon restoration. This article considers three issues arising from the determination of several applications made during the course of the proceedings: (i) whether cryptoassets are fungible; (ii) whether non-fungible cryptoassets may be the subject of a vendor-purchaser constructive trust; and (iii) how stake-bonding and comparable agreements over cryptoassets as investment assets should be characterised in law.
25 March 2024