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When is a bank put on notice of an agent’s fraud?
By reference to previous authorities, this article discusses circumstances in which a bank might be held to be on inquiry or “put on notice” that an agent’s payment instruction to the bank is an attempt to defraud the bank’s customer.
18 March 2024Carillion: a director’s strict duty to know the company’s true financial position?
The Secretary of State recently argued in high profile disqualification proceedings that directors owe a freestanding, strict legal duty to know a company’s true financial position at all times while holding the office of director. This article argues that this position is clearly wrong as a matter of law, would be inconsistent with the directors’ duties in the Companies Act 2006, and would be fundamentally impractical and impossible to comply with.
18 March 2024Enforcing security over limited partner interests in English limited partnerships
In this article the authors look to analyse and explore some of the key issues for lenders when taking and enforcing security over a limited partner interest in an English limited partnership, limiting their analysis to matters arising under English law.
18 March 2024Boilerplate terms restricting freedoms in composite transactions: some traps for the unwary
Entire agreement and no oral modification clauses are designed to promote contractual certainty. But far from guaranteeing that result, their inclusion in transactions implemented by multiple contractual documents can increase the risk of injustice by restricting the availability and operation of rectification and estoppel, even where the contractual documentation does not accord with the parties’ mutual dealings. This article explores how those risks arise so that drafters may seek to mitigate them.
18 March 2024Quincecare, agency and conflict of laws: what law do we look to?
Much ink has been spilled on the Quincecare duty, considering the circumstances in which it may be engaged in the banker-customer relationship. However, that is only one part of a broader picture of inter-related agency relationships, all of which can be in play in cases where a company is being defrauded by someone who might usually be trusted to act in the company’s interests. This article sets out to identify, by means of a case study, what sort of issues might arise. It then seeks to explain what English conflict of laws rules would find to be the governing law of the various claims.
18 March 2024Undisclosed agency: characterisation and conflict of laws
The uncertainty surrounding the conceptual basis of undisclosed agency is, in many senses, an academic problem.1 1 However, this uncertainty is not 1 entirely1 academic, and can pose practical challenges in a conflict of laws context. This article explores several private law explanatory theories for undisclosed agency: contract, tort and unjust enrichment. Once each theory is subject to a conflict of laws analysis, it will be observed that a single fact pattern, when analysed through the three lenses, gives rise to three different applicable laws. This divergence risks unwanted legal uncertainty in international transactions structured to incorporate undisclosed agency relations.1
18 March 2024The key to harnessing the ownership power of NFTs: the need for standardised decentralisation protocols
NFT technology first raised interest because it offered potential to restore full ownership to digital property, which has been restricted in the centralised paradigm since the birth of the internet. However, in the current highly fragmented NFT ecosystem, we need robust standardised protocol systems that guarantee full decentralisation of the token and the underlying asset to consistently deliver on the original NFT promise of full ownership and control. Most NFT projects fail to do this – the underlying asset is not sufficiently decentralised and thus remains vulnerable to manipulation by the centralised issuer, which has damaged application, interoperability, and general consumer interest. In the dot-com era, establishing the PCI DSS security protocol to hold payment providers such as PayPal to high standards of consumer protection revived trust in online commerce that was originally rampant with fraud. Similarly, a flagship decentralisation protocol that requires NFTs to ensure that full ownership and control of the underlying asset passes with a sale will lower information costs for the consumer and increase the opportunity to scale applications of NFTs to high impact use cases beyond cartoon apes.
18 March 2024The impact of the Electronic Trade Documents Act 2023 on bank practice in trade finance
In this article the author considers the extent to which the innovations introduced by the Electronic Trade Documents Act 2023 may impact on practices in the trade finance arena.
18 March 2024“Packing” a punch to litigation funders?
In this article Charlotte Eborall considers the outcome and implications for funders in the recent Supreme Court decision of PACCAR and ors v Competition Appeal Tribunal and Ors [2023] UKSC 28.
18 March 2024Hague 2019: extending the lifespan of asymmetric jurisdiction clauses?
In this article Sarah Garvey seeks to assess the potential opportunities and risks for finance parties on the UK’s accession to Hague 2019 and whether finance parties are likely to adapt their approach to drafting dispute resolution clauses as a result. The article also provides a high-level overview of key features of Hague 2019 and highlights areas for future dispute and debate.
18 March 2024
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