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ESG Update: Green/sustainable finance in the real estate finance market
In this update Oriol Espar and César Herrero examine recent trends in real estate financing from a green/sustainability perspective and offer some guidance on dealing with green/sustainability-related wording, especially as regards green real estate finance transactions.
20 March 2024Tiptoe through the tulips: fiduciary and common law duties of care in cryptocurrency
Tulip Trading Limited v Bitcoin Association for BSV and ors [2022] EWHC 667 (Ch) involved an unusual claim by an alleged owner of Bitcoin seeking to force core developers of the Bitcoin code to take reasonable steps to “patch” that code to circumvent the fact that the claimant no longer controlled the relevant private key. This was analysed by the court on traditional principles of fiduciary duties and common law duties of care, but more broadly the claims can be seen to challenge the decentralized nature of the Bitcoin blockchain and the importance of private keys to the certainty and security of that blockchain.
20 March 2024The endgame: issues in enforcement against cryptoassets
This article considers the possibility of recovering cryptoassets without the authorisation of the private key.
20 March 2024Bragging rights: termination clauses and implied duties of good faith
In this article, the authors consider the circumstances in which termination clauses in a commercial contract might be subject to a so-called Braganza duty of good faith and the practical issues that might follow from this.
20 March 2024Financial sanctions and the case for digital central bank money
Central banks around the world have been contemplating the creation of central bank digital currencies (CBDCs)1 for the best part of the last five years, with some of them already experimenting, at the time of writing, with pilot schemes. This article explores to what extent the armed conflict that recently erupted in Europe’s periphery strengthens, as some have argued, the case for their issuance so as to better enforce financial sanctions imposed on deviant state actors or, instead, creates risks of currency retaliation as well as jeopardising the credibility of public money and its issuers.
20 March 2024Musk v Twitter: it’s not just lawyers who have an opinion on the likelihood of success of the litigation: the market does too!
Despite entering into a binding agreement with Twitter, Elon Musk has backed out of completing the purchase of the company at $54.20 per share. Twitter has commenced action in the court of Delaware. If it wins, its share price should increase to around $54.20 from the current $37.74. On the other hand, if it loses the share price will drop to $37.40, the level it was prior to the announcement of the bid. From this it is possible to calculate the probability of success of Twitter’s action implied by the current market share price (using some assumptions). This market implied probability can be compared to that obtained using legal analysis, which can then inform investors whether to buy or sell Twitter shares. It also gives litigators a rare opportunity to back their analysis!
20 March 2024Extending the cloak: individual immunity for foreign officials
In this article, Daniel Benedyk considers the application of state immunity to individuals acting on behalf of states and “separate entities”. This issue was not addressed in the State Immunity Act 1978 (SIA), but has since been developed in case law. In particular, it has been considered in two significant decisions of the Commercial Court in the last year.
20 March 2024UK securities fraud litigation gains momentum: Autonomy and G4S
This article examines two recent decisions in securities fraud cases: (i) ACL Netherlands v Lynch [2022] EWHC 1178 (Ch) (Autonomy); and (ii) Allianz Global Investors GmbH v G4S Limited [2022] EWHC 1081. The former considered such important questions as what published information is caught by s 90A of the Financial Services and Markets Act 2000 (FSMA), how statements in such information are to be construed, what constitutes the requisite guilty knowledge and how reliance is to be proved. In the latter case, the court held that so-called “person discharging managerial responsibility” (PDMR) status in these claims is limited to English law concepts of directorship but emphasised the potential elasticity of de facto directorship in particular.
20 March 2024ESG integration in private debt
In this article, the authors consider specific issues pertinent to ESG integration in private debt funds, including the size of the private debt borrowers and the need to respond both at fund level and in the form of the loan products.
19 March 2024Crypto headwinds: an overview of regulations in Singapore, the EU, UK and US
This article provides an overview of the recent developments in the regulation of cryptoassets across several jurisdictions, with a focus on consumer protection and stablecoin regulation. The importance of regulating cryptoassets has been underscored by their growing market capitalisation. Discussions for bespoke stablecoin regulations are also underway, as regulators become increasingly cognisant of the potential for stablecoins to be incorporated into mainstream financial systems. This article examines the cryptoassets regulatory proposals which have been made across various jurisdictions, and highlights opportunities for harmonisation of such regulations on an international front.
19 March 2024
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