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Cryptoassets as loan security
In this article Nik Yeo considers when it is possible under English law to create security over cryptoassets, looking specifically at the four forms of security interest: mortgage, charge, pledge and lien, alongside a potential control-based security interest, and the functional security that might be provided by DeFi protocols.
04 April 2025In sickness and in health: a review of transfer provisions in European leveraged loan agreements
Private equity sponsors, with good reason, are very aware of the importance of their portfolio businesses being able to control the types of lenders who hold their debt. They are keen to manage lender relationships throughout their investment period. Equally, it is important for lenders not to be unduly restricted in their ability to trade out of their loans should they need to. This obvious tension in the relationship between the borrower and its lenders has resulted in ever more detailed and restrictive transfer provisions in European leveraged loan agreements. This article considers the details of those provisions.
04 April 2025Understanding co-operation agreements: current boom, fundamental issues and latest trends
In recent years, there has been an increase in the use of Co-operation Agreements in US and European restructurings as a reaction to lenders being caught on the wrong side of a liability management exercise. This article highlights fundamental issues and trends with respect to Co-operation Agreements, discussing practical considerations, recent case developments and the potential further evolution, and use, of Co-operation Agreements in the future.
04 April 2025Scotland’s new statutory pledge: taking security over shares
Before the new regime was introduced, to take fixed security over shares in a Scottish company the shares needed to be transferred to the security holder (or its nominee). This causes a myriad of practical problems. The Moveable Transactions (Scotland) Act 2023, which came into force on 1 April 2025, allows (with a little help from the UK government) a new form of fixed security, the statutory pledge, to be taken over shares in Scottish companies that will side-step the bulk of these issues. This article explores the problems previously encountered in taking security over shares in Scottish companies and the advantages (and a few shortcomings) of the new statutory pledge. The old fixed security by transfer remains competent.
04 April 2025“Red flags” and ostensible authority: reflections on Republic of Mozambique v Credit Suisse & Ors
The question of when an agent has ostensible authority to bind their principal has been the subject of several important decisions in recent years. That question arose again in Republic of Mozambique v Credit Suisse International & Ors [2024] EWHC 1957 (Comm) (Mozambique) in relation to whether the Mozambican finance minister had authority to enter into sovereign guarantees on behalf of the Republic of Mozambique (the Republic) with various lending banks. This article analyses some of the issues that arose in Mozambique in relation to ostensible authority and considers the “red flags” of financial crime relied upon by the Republic as putting the banks on inquiry that the finance minister did not have authority.
02 March 2025Waiver and estoppel arguments against debt enforcement
This article considers arguments of waiver, estoppel and variation that borrowers may raise to resist debt enforcement action, and their interaction with so-called “no oral modification” provisions typically found in finance documentation. It also considers some practical implications of the principles in the banking and finance context.
02 March 2025Derivatives for private capital managers: hot topics and predicted trends for 2025
This article explores the hot topics and predicted trends for 2025. It is not focused on one particular strategy or sector and will be of interest to private capital managers using English law derivatives documents and/or those which are subject, directly or indirectly, to EU regulation (which includes US managers active in the EU).
02 March 2025Good faith in English contract law: taking stock a decade or more after Yam Seng
This article considers the development of the doctrine of good faith since Leggatt J’s historic decision in Yam Seng Pte Ltd v International Trade Corp Lt d [2013] EWHC 111 (QB). The authors focus on what recent cases tell us about: (i) when such a duty will be implied into a contract; (ii) the basis for implication; and (iii) the content of the duty.
02 March 2025Buy-now, pay-later: what the future will (and might) hold for the sector
Following concerns about potential material consumer indebtedness arising from the exponential growth in the ready availability of buy-now, pay-later (BNPL) credit products, and some four years after the 2021 Woolard Review concluded urgent action was needed to address that, 2025 is set to see the enactment of legislation that brings the majority of traditional BNPL within the scope of the Financial Service and Markets Act 2000 and the Consumer Credit Act 1974. The Financial Conduct Authority is then charged with delivering a tailored conduct of business framework so that, in 2026, most BNPL will be offered within a regime that provides appropriate levels of consumer protection while ensuring that lenders are not deterred from continuing to offer these useful interest-free products. This article examines the new regulatory perimeter, how the proposals aim to meet the requirements for proportionality and protection and what the alternatives might be for existing lenders.
02 March 2025Deconstructing delayed draw term loans
In this article we delve into the detail of delayed draw term loans. This has predominantly been a common feature in the private credit market, but lenders in the broadly syndicated loan market have started to offer the product too as competition between the two markets heats up.
02 March 2025
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