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The vexed and litigious question of “unallowable purpose”
In this article, David Milne KC considers the recent decisions in “unallowable purpose” cases, many of which have arisen in loan relationships, and explains why mere knowledge of the tax advantage by the directors of the taxpayer company should not of itself deny the tax relief.
19 March 2024Staking services in insolvency: problems of certainty and predictability
Centralised platforms offer their customers a range of services, a relatively newer one being staking services. In the event of the insolvency of the platform, a fundamental question is how the assets received by the platform for staking purposes will be treated. Will they be part of the insolvency estate, or will they be returned to the customers? This will depend on the legal characterisation of the relationship between the platform and its customers. This article looks at this issue from a functional perspective and argues that the operational practices of the staking platform, fee structures and the level of discretion of the platform should play an important role in the analysis.
19 March 2024Toto’s law: looking behind ESG rating agency curtains
In this article, Dan Harris tests the provisional regulatory response to the risks, particularly bias, presented by ESG ratings providers when they repackage information scraped off the internet and elevate its status into a “score”. He suggests an industry form of comfort letter for incorporation into contracts between ESG ratings providers and investment managers.
19 March 2024Cryptoassets as property under English law Pt II: ownership, situs and the circular question of jurisdiction
Judgment was recently handed down by the Court of Appeal in Tulip Trading Limited v Bitcoin Association For BSV & Ors [2023] EWCA Civ 83. This article focuses on two issues arising from the basis upon which Tulip Trading Limited’s case and the issue of jurisdiction proceeded in the Court of Appeal: (i) who is the “true owner” of the bitcoin; and (ii) the circular nature of founding jurisdiction.
19 March 2024Electronic deeds: signed, sealed … delivered?
Deeds are often used in commercial practice, particularly where a party wishes to enter into a unilateral commitment or parties wish to vary a contract. However, the requirement that a deed must be “delivered” is potentially confusing. It may cause particular difficulties in the context of deeds that are executed and evidenced electronically.
19 March 2024Taking security over certificated shares in private companies
The article discusses the correct characterisation of the transfer of the share certificate and a blank stock transfer form to the lender where the latter takes an equitable security interest over the shares. It discusses differences in practical treatment where the share certificate is electronic or digital in form.
19 March 2024Unknown unknowns: the worldwide development of the Worldwide Freezing Order against persons unknown
The Worldwide Freezing Order has undergone a significant new development in recent years, as the courts have sought to adapt the powerful interim remedy to cases of internet fraud by, for the first time, making such orders against persons unknown. This article surveys together the published decisions to date in England and elsewhere in the common law world and suggests that while this development is here to stay, uncertainty remains about its application and scope, particularly how the unknown persons subject to it should be described.
19 March 2024Crypto fraud and the bona fide purchaser for value defence
In this article Helen Pugh considers the bona fide purchaser for value defences at common law and in equity and their application to crypto transactions tainted by fraud.
19 March 2024An account of profits: when if ever in commercial banking claims?
In this article, Ian Bergson considers the question when, if ever, an account of profits will be ordered in a commercial banking claim, in light of the recent Commercial Court decision in ECU Group plc v HSBC Bank plc [2021] EWHC 2875 (Comm).
19 March 2024Reforming corporate criminal liability: a missed opportunity to modernise the law
In June 2022 the Law Commission presented the government with ten options for reforming the law of corporate criminal liability, with specific focus on economic crime. In this article we address what we consider to be the key weakness in the Commission’s approach, together with those options which are most likely to provide coherent alternatives, or at least sensible improvements, to the current law. While we take the view that the Law Commission missed the opportunity to reject the identification doctrine altogether as both anachronistic and inherently unsuited to establishing culpability in modern corporate contexts, we welcome the proposed increased emphasis on “failure to prevent” models of liability and the recognition that an administrative system for the imposition of monetary penalties can provide valuable additional means of redress.
19 March 2024
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