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The impact of rated note feeder funds on subscription-line facilities
In this article the authors consider how a rated note feeder interacts with subscription-line facilities, in terms of security, enforcement, insolvency and subordination of debt repayments.
19 March 2024Capacity: is the question of hedging or speculation mis-stated?
The question of legal capacity to act in purported hedging transactions inherently assumes that all transactions are binary: either hedges or speculations. In this article, Hanif Virji explains how the reality is more complex – going beyond even a one-dimensional spectrum to a multi-dimensional one.
19 March 2024In context: the FMLC and its paper on good faith
On 2 November 2022, the Financial Markets Law Committee (FMLC) published a paper titled Duties of Good Faith in Wholesale Financial Contracts. The Paper will be of keen interest both to transactional lawyers and to litigators.1 This article begins with a summary of the Paper’s findings, goes on to consider the unique composition and role of the FMLC, places the FMLC’s good faith discussion in the context of the private law underpinning the wholesale financial markets, and then considers the FMLC’s analysis of English contract law which includes a comparison with the approach of other countries, including the United States (New York) and jurisdictions in Europe and the Commonwealth.
19 March 2024Failure to prevent fraud: making up for failure to prosecute?
The UK government has introduced a suite of amendments to the Economic Crime and Corporate Transparency Bill (ECCTB) which, if adopted, would add a new offence of “failure to prevent fraud” by large legal entities to the UK statute book. Corporate crime specialists Richard Lissack KC and Robin Lööf of Fountain Court Chambers analyse the proposed new offence, its background and context, main features and policy justification. Using the experience of over a decade of the existing failure to prevent bribery regime, they then consider the likely impact of the new failure to prevent fraud offence on business.
19 March 2024Deed polls: a difficult solution to a difficult problem
In recent years, a series of newly incorporated companies have proposed schemes of arrangement or restructuring plans pursuant to Pts 26 or 26A of the Companies Act 2006 (respectively) with the express purpose of compromising or amending debts which they are not contractually party to, and which they have no connection with. Their ability to do so relies on a unilateral instrument known as a “deed poll”. In this article, we examine the reasons why the deed poll structure may be used, and some of the issues that the courts have considered and addressed in recent cases.
19 March 2024From Poland with no trust: protection of securities held by financial intermediaries
This article describes the general rules governing the protection of investors’ rights in Poland in the context of securities held by them with financial intermediaries such as brokerage houses. In particular, it discusses how the ownership of securities is treated and protected in Polish legal order.
19 March 2024The practicalities of pleading and proving foreign law in modern financial litigation
In theory, FS Cairo (Nile Plaza) LLC v Lady Brownlie [2022] AC 995 (Brownlie II) includes everything one needs to know about pleading and proving foreign law. However, in practice, it is replete with difficulties for litigators. This article provides guidance to ensure that one pleads one’s case in accordance with Brownlie II whilst not exposing one’s clients to unnecessary costs and satellite litigation.
19 March 2024Damages for breach of anti-assignment clauses
The effectiveness of restrictions on the assignment of contractual rights has been qualified by statute and potentially by the courts. In these circumstances, obligors may look to their remedies against assignors and assignees, which may include damages for breach of contract and for inducing breach of contract. Akhil Shah KC and Daniel Schwennicke of Fountain Court Chambers analyse the relevant legal principles and provide practical advice to secured lenders seeking to take assignments of contractual rights.
19 March 2024The new FCA Consumer Duty: the interrelationship with the Senior Managers and Certification Regime
2023 sees the introduction of what the Financial Conduct Authority (FCA) hopes will be a significant increase in the standard of consumer customer care: the new Consumer Duty (the Duty) will apply to firms from 31 July 2023 in respect of new products and services and of existing products and services that remain on sale or open for renewal (it will be another year before the Duty will apply to closed products and services). This in turn brings changes to, and greater responsibilities under, the existing Senior Management and Certification Regime (SM&CR), which are considered in this article.
19 March 2024US distressed debt techniques and minority protection in English law
The “drop-down” and “up-tier” restructuring techniques have become more frequently used by businesses with New York governed credit documentation facing financial difficulties. These techniques have been contentious; many transactions have resulted in litigation in US courts by the minority lenders. This article considers, if such techniques were used in relation to English governed credit structures, how English law principles of minority protection could come into play.
19 March 2024
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