Feature

Alternate realities: transactional and economic reality in APP fraud and unjust enrichment

Two recent conflicting judgments have considered whether, for the purposes of a claim in unjust enrichment against a receiving bank, a transfer of funds following an authorised push payment fraud is made “at the expense of the claimant”. In this article we consider the application of the concepts of “transactional reality” and “economic reality” in this inquiry.

Market abuse and restitution orders: challenges for FCA policy

This article addresses the potential for the Financial Conduct Authority’s use of its powers to order restitution for market abuse against a listed or publicly traded company/issuer, to undermine the liability regime for such companies to their investors set out elsewhere in the Financial Services and Markets Act 2000 (FSMA). It suggests that the proportionate issuer liability regime which was adopted, after extensive consultation, between 2006 and 2010, and is now contained in s 90A and Sch 10A FSMA, is a key aspect of UK public market competitiveness and that restitution should not become a substitute means for investors to recover losses for disclosure breaches from the issuer, absent fraud.

Secured claims in French restructurings: lessons from the 2021 reforms and recent large case precedents

In this article, Jean-François Adelle considers the treatment of secured creditors in in-court restructurings following the 2021 reforms.

Blended finance: funding sustainable development with public and private funding

The concept of blended finance is not new. But it is being applied beyond its traditional development and impact finance roots as a way to mobilise scaled private capital flows for the purposes of achieving sustainable development goals. In this article, we look at the different definitions of “blended finance” and how blended finance can be used to combine public and private capital for climate, nature and broad sustainable development purposes.

Security financial collateral arrangements and the crystallisation of floating charges

In this article Jonathan Haines considers whether the crystallisation of a floating charge means that it can qualify retrospectively under the Financial Collateral Arrangements (No. 2) Regulations 2003 (2003/3226) and the impact of that on other creditors.

The potential impact of the new UK Listing Rules on securities litigation

The radical restructuring of the UK listing framework by the Financial Conduct Authority (FCA) has shifted greater risk to investors. This article examines the potential impact of the overhaul of the regime on future claims brought by shareholders under ss 90 and 90A of Financial Services and Markets Act 2000.

From London to Berlin: insights on taking security over receivables in Germany

This article explores some of the complexities and key considerations for lenders and legal practitioners when taking security over receivables in Germany. We consider: (i) the types of security that can be taken over receivables and their key features/formalities; (ii) how to navigate contractual restrictions on transfer; (iii) potential pitfalls when taking security over receivables; and (iv) secured creditors’ priority when realising security over receivables in an insolvency.

Lost in the labyrinth: the Court of Appeal in KVB Consultants

The decision of the Court of Appeal in KVB Consultants Ltd & Ors v Jacob Hopkins McKenzie Ltd & Ors  [2024] EWCA Civ 765 has important implications for anyone who deals with, appoints or acts as an appointed representative (AR). It applied a number of principles from existing case law but reached a surprising conclusion regarding how a principal can limit the responsibility it takes for its AR.

Money laundering in the supply chain: the use of “adequate consideration” to “cleanse” criminal property

Section 329 (2)(c) of the Proceeds of Crime Act 2002 exempts a person from criminal liability where criminal property is acquired for adequate consideration. Previous authority appeared to suggest that the provision of adequate consideration had the effect of "cleansing" criminal property. Thus, anyone who subsequently dealt with the property would not commit a money laundering offence. 

In Rex (on the application of World Uyghur Congress) and National Crime Agency  [2024] EWCA Civ 715, 26 June 2024  the Court of Appeal rejected this interpretation. In a decision which will have significant implications for businesses and professional advisors, the court held that the “adequate consideration” exemption is no more than a personal exemption. It has no impact on the status of the property as criminal property or recoverable property. It does not therefore operate to cleanse tainted property. 

Accelerating the green transition: European Energy’s landmark portfolio construction financing of renewable energy projects

In this article the authors describe the key features and unique structural considerations and challenges of European Energy’s landmark portfolio construction facility, which was put in place in November 2023 after a two-year bottom-up design, documentation and bank credit approval process.