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The Pensions Regulator’s new teeth: how might they bite lending transactions?
This article outlines how risks relating to defined benefit pension scheme liabilities affect financing transactions, the relevant provisions of the new Pension Schemes Act 2021 and the extent to which these provisions might result in changes in practice.
13 June 2024Loss of a chance in commercial transactions: where are we now?
Loss of a chance principles apply to claims for lost transactional opportunities when the counterfactual case depends on the actions of a third party. This article discusses the relevant principles, their application to transactional cases, and the impact of any wrongdoing by the claimant on the lost opportunity claim.
13 June 2024Revisiting Canary Wharf v EMA: applying the “radically different” theory of frustration
In this article Zahra Al-Rikabi considers the juridical basis for the doctrine of frustration following Canary Wharf v EMA and in light of the renewed interest in the doctrine following the global COVID-19 pandemic.
13 June 2024Financial product mis-selling claims against banks: the increasing willingness of the English courts to strike out allegations of fraud in “appropriate” cases
Traditionally, in a financial product mis-selling context, claims against financial institutions involving allegations of fraud, LIBOR manipulation and unlawful means conspiracy have not been amenable to strike out or summary determination. However, the English courts are increasingly demonstrating a willingness to deal with opportunistic claims against banks (and other third parties) involving allegations of fraud without the need for a full trial, in “appropriate” cases. Two recent High Court judgments provide guidance on when the court will consider it appropriate to do so: Boyse (International) Limited v Natwest Markets plc & Anor3 and Elite Properties and Ors v BDO LLP.4
13 June 2024English schemes and the Cape Town Convention
The impact on the aviation sector of the COVID-19 pandemic and governmental restrictions on air travel and other movement controls has been severe and has resulted in a number of airline restructurings. This article examines the use by an airline of a scheme of arrangement under Pt 26 of the Companies Act 2006 (2006 Act), as a mechanism for effecting a compromise with certain of its creditors, and the interplay between a scheme and those creditors’ rights under the Cape Town Convention and associated Aircraft Protocol (CTC), as implemented in the UK by The International Interests in Aircraft Equipment (Cape Town Convention) Regulations 2015 (Regulations). These considerations arose in the decisions of the English court in MAB Leasing Limited.1
13 June 2024Reliance: a comparison between the common law and s 90A FSMA
This article compares the reliance requirement for the common law claim of misrepresentation with the statutory action of s 90A of the Financial Services and Markets Act 2000 (FSMA). The authors focus on recent authority regarding reliance upon implied statements at common law and the uncertainties that remain under s 90A FSMA.
13 June 2024Jumping the line: priming restructuring transactions during the COVID-19 crisis
Over the past year, the COVID-19 crisis has caused liquidity issues for many US businesses, which has forced some borrowers to resort to increasingly creative restructuring options. These have generally fallen within two categories – “dropdown” transactions and “uptiering” exchange transactions, both of which have seen borrowers take steps under their credit agreements to prioritise one set of lenders over another. This article tracks the key cases in the US market and offers a flavour of what may be arriving soon on European shores.
13 June 2024Dual class Premium listings: no reason for the reservations?
In the UK Listing Review it is suggested that the LSE should allow companies with dual class share (DCS) structures to list on the Premium segment. In this article, we discuss this proposal. First, we discuss the arguments that are made against DCS-listings, and we give an overview of the Swedish DCS-regulation. From there, we discuss the conditions for DCS-listing recommended in the Review. We conclude that the listing conditions suggested might not only hinder DCS-structures from being useful for some companies but would risk disabling mechanisms that could counteract several of the problems that DCS-structures may cause.
13 June 2024Commodity finance: the complete security package
COVID-19 lockdowns have disrupted commodity transactions and consequential enhanced oversight of borrowers’ businesses has uncovered fraudulent activities. Of utmost importance to any lender in a commodity financing is that the commodity exists and has not been financed by another party. Against this backdrop, in this article, the authors describe a typical security package adopted by commodity financiers under an English law commodity financing.
13 June 2024Structures, security and finance products: the increasingly sophisticated world of investment fund focused borrowing
In this article Kevin Lynch and Ian Dillon consider the most commonly utilised funds finance facilities, how the borrowing needs of various funds and available facilities may be different depending on the type of fund strategy, inflection points in its life cycle, lenders security requirements and some trends to watch.
13 June 2024
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