Feature

Fiduciary duties and regulatory rules: are the courts and the regulator on a collision course?

Deborah Sabalot Deane asks whether the motor finance vehicle cases have identified a gap between the law and the regulatory rules creating legal uncertainty and doubtful outcomes for both consumers and the industry.

Some updates on TMT finance

This article updates the series of articles published between March 2015 and November 2018 on the subject of financing businesses in the TMT sectors (Series 1). Since then, the type and value of intangible assets have increased, many banks have launched growth debt products, private credit firms have expanded their business both generally and in providing credit to technology  businesses, and some legal developments relevant to intangible assets and credit finance have taken place.
Certainly, the value of the market has grown. According to the latest ONS figures (published in November 2024), in 2022 UK businesses invested £200bn (a record) into intangible assets. This statistic also illustrates one of the original points of Series 1: of the £200bn, only around half was invested in assets protected by intellectual property rights (IPR); the rest paid for assets such as know-how, trade secrets, business processes, and all the other intangible assets that are not covered by IPR.
We can view the lay of the land in 2025 by considering what has not changed, what has changed, and what is changing. 

Resource-backed loans: a never-ending story?

In this article, Brad Pomfret KC, Asa Tolson and Rebecca Jones consider whether resource-backed loans secured by an ad  infinitum  pledge of the resources concerned risk creating irredeemable security as a matter of English law.

Drafting on the edge: ambiguity in hybrid jurisdiction clauses

In this article the authors consider the implications of asymmetric jurisdiction clauses drafted such that the non-exclusive limb of the provision is carved out of a blanket provision stating that the courts of England are to have exclusive jurisdiction. The article considers how, with this drafting, English courts are unlikely to refuse jurisdiction and that explicit drafting is required if a financial party wishes to compel an English court to discontinue proceedings in favour of a court of its choosing.

Central clearing in the US Treasury Securities markets: understanding the global legal impact

In December 2023, the United States Securities and Exchanges Commission published their Final Rule prescribing mandatory clearing for “eligible secondary market transactions” involving US Treasury Securities. In-scope transactions must be cleared and settled through a central clearing agency. The rule extends to those who are a party to “eligible secondary market transactions” regardless of their jurisdiction. This includes market participants in the UK, the European Union, APAC and other jurisdictions in addition to the US. The purpose of this article is to examine the requirements of the clearing mandate, to review the legal issues and documentation requirements which it raises.

The challenges of bringing cryptoassets within the UK regulatory perimeter

This article explores the proposals to bring cryptoassets within the regulatory perimeter. It summarises the current and new regimes and assesses some of the challenges that may materialise.

Old debt, new terms or new debt, old terms: debt variation re-examined

This article examines the continuing importance of whether contractual amendments are variations of the original contract or result in a new contract altogether and the consequences for banking and finance transactions.

Governing law, ungovernable questions: the challenge of public international law in the World Bank’s development policy financing agreements

This article explores the challenges surrounding governing law in the World Bank’s development policy financing agreements (ie loan, credit, guarantee and the International Development Association’s grant and financing agreements). Multilateral development banks, such as the World Bank, play a critical role in addressing global development challenges in low- and middle-income countries. The World Bank (and indeed certain other multilateral development banks owing to their nature as supranational entities) adopts public international law as the governing law for its development policy financing agreements. English law or New York law are usually used in standard loan agreements due to their predictability, clarity and well-established precedents. The World Bank’s use of public international law – while aligned with its supranational status – raises questions around enforceability, jurisdiction and dispute resolution. The article describes the role of public international law in governing the World Bank’s development policy financing agreements and its practical application. 

Use of the quoted Eurobond exemption in the loan markets: why, when and how?

The use of the note subscription agreements has become increasingly common in the EMEA loan markets. There are various tax and regulatory reasons why an entity may choose to obtain debt finance by issuing notes, rather than by borrowing a loan. A common reason that UK companies choose to obtain debt finance in this way is to benefit from the quoted Eurobond exemption from UK withholding tax.
This article explains when this exemption is most likely to be relevant, the criteria that must be satisfied to benefit from it, and the key documentary and practical implications of using it. 

The Moveable Transactions (Scotland) Act 2023: some points from practice six months on

In this article the authors review the Moveable Transactions (Scotland) Act 2023 (the Act), which came into force on 1 April 2025, and consider some of the common trends, issues and nuances arising in practice in the Act’s first six months in operation, in particular: 

• Perfection of assignations by registration and/or notice (or both). 
• The boundaries of what is assignable under the Act. 
• Invalidation of statutory pledges by disposals outside consent regime. 
• Enforcement and voting rights in relation to share security. 
• Information requests to lenders.