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Waiver 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 2025The lucrative AI debt market – disrupting traditional debt lending: Part 1
In two parts, the second to be published in the next issue, we discuss the burgeoning debt market in artificial intelligence (AI) and how this could disrupt traditional debt lending frameworks if such frameworks are not adapted to AI companies. This Part 1 discusses how the unique nature of AI companies could present distinct challenges to financial covenants in traditional lending frameworks if not properly considered in the context of such companies. Part 2 will then discuss how the unique nature of AI-related assets could present similar challenges to the process of security enforcement in traditional lending frameworks if not properly considered in the context of such assets.
02 March 2025EU and UK implementation of Basel 3.1: a different approach?
In this article, the authors set out some of the key substantive differences between the EU and UK implementation of the Basel 3.1 standards on credit risk and consider the implications for global groups operating across these two jurisdictions.
02 March 2025Scottish limited partnerships and fund finance
In this article, the authors consider the versatility of Scottish limited partnerships (SLPs) in fund finance transactions and issues to consider when lenders take security over SLP interests.
02 March 2025Across the pond: practitioner’s guide to fortifying LMA forms for cross-Atlantic transactions
In this article, the authors provide contextual understanding of certain US provisions to supplement the Loan Market Association forms when representing lenders in transactions involving US-domiciled borrowers and/or US-domiciled credit support providers.
02 March 2025Protecting shareholders against transactions with an improper purpose
This article discusses the recent case of Tianrui (International) Holding Company Ltd v China Shanshui Cement Group Ltd [2024] UKPC 36, [2024] 3 WLR 986 in which the Privy Council explained the personal right of shareholders to challenge share issues undertaken for an improper purpose. The right derives from the contractual relationship between the shareholders and the company, and the fiduciary duties thereby imposed on the directors. The resulting claim has implications for banks that may be involved in a company’s activities, for example as lenders or corporate advisers.
02 March 2025
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