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The National Security and Investment Act 2021 revisited: when are secured creditors obliged to make mandatory notifications?
The National Security and Investment Act 2021 (NSIA or the Act) is a complex and wide-ranging piece of legislation with the potential to impact many acquisitions and other corporate transactions. It empowers the Secretary of State for Business, Energy and Industrial Strategy (the Secretary of State) to review and where appropriate, intervene in investments in qualifying entities and assets that have given, or may give rise to a risk to national security. Since the NSIA came into force at the beginning of 2022, its practical implications have inevitably come to the fore. This includes how the Act’s mandatory pre-notification requirements apply to creditors taking security over shares in entities operating in qualifying sectors of the economy. While the government’s intent seems clear in terms of when the NSIA will impact secured creditors, the text of the Act itself and related guidance have resulted in some questions among practitioners.
25 March 2024It is dangerous to use pithy terms to describe the complex risks of a fund
For marketing purposes, the complex and multiple risks of a fund are often summarised in catchy terms which ultimately are inaccurate or incomplete. This can lead to a charge of misrepresentation and censure by the regulator and litigation by the investors.
25 March 2024A comparison of re-proposed SEC Rule 9j-1 and the UK/EU Market Abuse Regulation
Despite industry criticism of the Rule 9j-1 originally proposed in 2010, the SEC recently re-proposed Rule 9j-1 with even further reach in antifraud, anti-manipulation liabilities for security-based swaps. In particular, the re-proposal lowers the standard of mental state requirement for insider trading liabilities, adds a new prohibition on acts and attempted acts of price manipulation, and seeks to apply similar expanded violations to assets underlying or related to the security-based swap. Compared to the re-proposed Rule 9j-1, the UK/EU Market Abuse Regulation has a different scope and is not specifically designed to apply to swaps and derivatives, but contains prohibitions in the same categories as those under the re-proposed Rule 9j-1.
25 March 2024Interest under a loan linked to a base rate: issues to consider
This article considers the issues that it is suggested finance lawyers should have in mind if asked to advise on a proposed loan where the interest payable is to be linked to the Bank of England bank rate, the base rate of another central bank, or the base rate of the lender. The author focuses on key differences between different methods of calculating interest, how interest rates can be structured and various practical issues that arise.
25 March 2024Interpreting statutes and contracts: what are the differences? Part I
In this Part 1, Richard Calnan discusses the similarities between contractual and statutory interpretation and then explores one important difference. Part 2, to be published in a later edition, will discuss three other important differences.
25 March 2024Is your MAE/MAC clause ready for the next pandemic?
In this article, Sa’ad Hossain QC considers lessons for the draftsmen of MAE/MAC clauses from the recent Travelport v WEX litigation.
25 March 2024Unanswered questions regarding the Restructuring Plan
The Restructuring Plan was introduced to the Companies Act in June 2020. Since then, there have been numerous cases – some of which have involved challenges by interested parties – which have elucidated the correct approach to convening meetings, and to providing sanction for Restructuring Plans. However, important unanswered questions remain, including as to the exercise of the cross-class cram down power where one or more of the dissenting classes is “in the money”.
25 March 2024Talking about a revolution: making ESG securitisations mainstream
This article considers the constraints hampering environmental, social and governance (ESG) securitisations and the ESG securitisation market generally including the current regulatory framework, the various forms an ESG securitisation can take and possibly policy solutions to stumbling blocks in the market.
25 March 2024The UK’s bank ring-fencing legislation: legal uncertainties and potential solutions
This article is based on the FMLC’s Report on UK bank ring-fencing legislation, published in November 2021, in which the FMLC recommended amendments to the legislative framework. It delves into four of the eight issues examined by the FMLC’s Report, providing the legislative context, the impact of the uncertainty and the proposed solution by which each issue may be mitigated.
25 March 2024Does the liquidator have a duty to deal with trust assets?
The extent, if any, to which the liquidator of a corporate trustee is under duties in relation to trust property has received very limited attention from the English courts. The point is important since corporate trustees collectively hold property worth trillions. If such trustees cannot be placed in special administration proceedings or if the administrator of a corporate trustee is unable fully to deal with trust property prior to the end of the special administration, the absence of any duty on the liquidator to deal with such property in some appropriate way would open up a serious lacuna in the efficacy of the liquidation regime. This article sets out tentative and exploratory considerations that may assist a court asked to address this question.
25 March 2024
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