Feature
773
Go to page
of
78
Conspiracy theories: unlawful means conspiracy and the problem of private rights
Over the last two decades the scope of the economic torts has been considered in a variety of business contexts and the tort of conspiracy to injure by unlawful means is no exception. Liability may arise where two or more persons combine and take unlawful action with the intention of causing damage to a claimant who incurs the intended damage. Difficult questions about the state of mind of those involved have often arisen. But in the years since the decision in The Racing Partnership Limited v Sports Information Services [2020] EWCA Civ 1300, those participating in competitive deals, where gain could be said to come at the expense of another, may find themselves alleged to have participated in a tortious conspiracy despite believing their activities to be lawful.
This article examines the current state of the law, where difficulties have arisen, and the need for the limits of the tort to be explored further in order to address uncertainties that remain.
“Make-whole” clauses under Ch 11 and Pt 26A restructuring plans
While the Pt 26A restructuring plan in English law has been in existence for five-years, and daily expands its depth of case-law, we still often look across the Atlantic Ocean to the American Ch 11 restructuring fights to see issues not yet addressed on these shores. One such hot topic in the American sphere is the treatment of “make-whole” clauses and post-insolvency interest, and whether such matters can and should be considered within a restructuring.
01 July 2025Creative class composition: the hunt for the anchor class
The Restructuring Plan’s cross-class cram down tool gives distressed companies new opportunities to impose contested deals on dissenting stakeholders through creative composition of “cramming” or “anchor” classes. No one can be surprised that debtors are using the law to their advantage, but how far will the courts let them go in the hunt for such anchor classes?
01 July 2025Is there room for more than one concept of Material Adverse Change in your Facility Agreement?
This article was inspired by the UCL ‘Contract Law and the Unexpected’ conference on 16 May 2025 (Conference). At that conference a paper was presented which argued that material adverse change (MAC) clauses are similar to force majeure clauses and deal with uncertain events, but often with insufficient clarity. In this article we look at whether conventional MAC clauses in facility agreements are fit for purpose, and what that purpose is. We also look at a hybrid approach which creates a contractual renegotiation obligation when there is a change which may have a material adverse effect on the business or operations of the Borrower but falls short of being likely to cause a financial covenant breach or insolvency. This is also considered in the context of the debate about the role of good faith in contracts and its application to debt financing arrangements.
01 July 2025Financial crime reforms creating new risks and challenges for firms
The Economic Crime and Corporate Transparency Act has introduced a novel failure to prevent fraud offence, as well as extending the criminal attribution doctrine to hold large firms liable for the actions of a wider range of senior managers. In this article the authors consider these reforms as well as areas of uncertainty and new risks. They provide some practical guidance.
01 July 2025The continuing inviolability of standby letters of credit
In this article the authors consider whether the English courts’ recent prioritisation of the inviolability of standby letters of credit has led to outcomes that can be perceived to be unduly kind to beneficiaries.
01 July 2025You can dip twice but can you only prove once? The insolvency implications of “double dip” transactions
In this article the authors consider the insolvency implications of “double dip” transactions, which are becoming increasingly prominent as a form of liability management exercise. The authors first outline some of the different forms of “double dip” transaction structures, before placing them within the existing English insolvency law framework. They conclude with some practical considerations.
01 July 2025Layering it on thick: the evolution of the super senior intercreditor agreement
It has been over five years since the Loan Market Association (LMA) published its form of super senior/senior intercreditor agreement for use on European direct lending transactions. While this document has become the starting point for intercreditor agreements on almost all of these transactions in Europe, there have been a number of evolutions to its terms during this period to reflect the requirements of financial sponsors as they look at more complex capital structures to meet the financing needs of their portfolio companies. This article tracks some of these developments and looks ahead to further changes which may be on the horizon.
01 July 2025Atishoo, atishoo: we all fall down? Implications of business disposals upon cessation of business clauses
In this article Charlotte Eborall examines how a company considering a change in the entity’s structure or business by divestment of part or all of its business can avoid potential issues relating to the triggering of a “cessation of business” event of default clause. It also considers how the courts might approach the question of interpretation of such clauses should one proceed to trial.
01 July 2025MiCA: unresolved questions
The EU Markets in Crypto-Assets Regulation has been in force for the better part of a year. Still, many legal questions surrounding its scope of application remain unanswered and new questions are emerging at a rapid pace. Among those open issues are whether European Markets in Crypto-Assets Regulation’s (MiCA’s or MiCAR’s) asset-referenced tokens can be characterised as derivative financial instruments under MiFID II, as well as their differentiation from “other” cryptoassets. The understanding of white paper obligations is evolving. The question of how cryptoassets service providers (CASPs) may use cryptoassets initially received for custody purposes is being debated, and the link between EU and national law raises further questions about how to insolvency-proof a CASP’s custody business. This article aims to shed light on these topics and provide ideas for an understanding of MiCA’s provisions going forward.
09 June 2025
Go to page
of
78
