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Judicial review in the financial services sector: a question of risk and reward
Successful judicial review challenges are rare – those in the financial services sector perhaps particularly so. Does the rarity of successful challenges explain why financial institutions may overlook their public law rights when engaging with regulators? This article explores recent examples of judicial review in the financial services sector, the risks involved for financial institutions in bringing such claims, and key considerations for those wishing to exercise their public law rights.
29 July 2024Fixed rate loans: tough break (costs) for borrowers
This article considers the recent decision in Farol Holdings Limited & ors v Clydesdale Bank PLC & National Australia Bank Limited [2024] EWHC 593 (Ch) and its likely impact on the landscape of lender/borrower disputes for the recoverability of break costs and the establishment of an unfair relationship.
29 July 2024Turn the Unfair Terms Directive into a Regulation!
In this article, the authors set out the arguments for replacing the EU Directive on Unfair Terms in Consumer Contracts with a Regulation by identifying the problems with the current legislation and the advantages of a change.
29 July 2024Assignment or charge over warranty and indemnity insurance policies as security?
This article considers a difficulty which may arise for buyers in M&A transactions when lenders take security over warranty and indemnity insurance policies by way of assignment of the right to be paid the proceeds of a future claim. This article suggests a better option for buyers would be to take a charge over the contractual right to be paid, rather than by receiving an assignment of the right to, the proceeds of the policy.
29 July 2024Mandatory collateralisation of hedging transactions under senior secured facilities
This article considers the implications of mandatory collateralisation being applied to hedging transactions under senior secured facilities.
29 July 2024Anti-suit relief: Bourlakova and Magomedov and the non-contractual jurisdiction
The recent line of authority preceding Bourlakova 1 and Magomedov2 had largely centred on the contractual jurisdiction for granting an anti-suit injunction (ASI) to restrain or prevent the commencement of foreign proceedings. However, the cases of Bourlakova and Magomedov respectively considered the non-contractual jurisdictions for granting ASI relief and anti-anti suit injunctive (AASI) relief. This article will examine the contractual and the non-contractual bases for the grant of ASI and AASI relief, before considering the Bourlakova case and the court’s approach to single forum disputes, as well as the Magomedov case and the court’s willingness to protect judicial process in England and Wales.
29 July 2024Tacking: what further advances since 2002?
In this article, the authors consider issues of interest to the syndicated loan market in the context of the “tacking of further advances” to existing lending secured by registered land, or mortgages of registered land, in light of s 49 of the Land Registration Act 2002, developments in jurisprudence on the topic, and the work of the Law Commission. The authors are indebted to Mr Trevor Moore, for his article in this journal entitled ‘Real Estate as Security following The Land Registration Act 2002’ (2004) 2 JIBFL 56, upon which this work builds. This work assesses developments since that date and addresses problems arising in the modern loan market where; syndicate lenders make further advances directly to the borrower under ancillary facilities/RCFs; where loan agreements state that the obligation to make a further advance does not apply for so long as there is an un-remedied breach of covenant; how the concept of the “agreed maximum amount” operates under facilities where there are incremental loans and up-tiering transactions; and how the absence of a robust intercreditor agreement with a subsequent chargee can expose the “senior” lenders to US-style “lender-on-lender” violence.
29 July 2024Financial sanctions and investment treaty arbitration
Financial institutions may be the subject of sanctions unilaterally imposed by individual states. While sanctions can be challenged through domestic means, foreign investors affected by sanctions have the right to bring proceedings against the sanction-imposing host state before international arbitral tribunals, provided investment treaty protection exists. Final awards, in particular monetary remedies against the host state, can be enforced globally.
29 July 2024Debt financing of AI companies: identifying “AI assets” for the security net
In this article the authors identify the assets of the AI ecosystem, provide a non-exhaustive methodology for identifying them and explain how you would typically take security over certain of those assets in the context of a debt finance transaction.
29 July 2024IOSCO Leveraged Loans and Collateralized Loan Obligations (CLOs) Good Practices for Consideration: how will this impact leveraged loan documentation?
On 3 June 2024, the International Organization of Securities Commissions (IOSCO) published its final report on Leveraged Loans and Collateralized Loan Obligations (CLOs) Good Practices for Consideration . This guidance follows an extensive market consultation exercise which examined the impact on leveraged loan investors of fewer and looser covenant protections in transaction documentation together with a number of other conduct and transparency concerns within the market. In this article Lee Federman and Adam Wolinsky consider four of the good practice measures which focus on key transaction terms.
26 July 2024
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