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Offshore case law on bondholders as contingent creditors
It is critical to the operation of bond markets that ultimate account holders bringing liquidation proceedings against bond issuers are given only limited recourse to issues. One recent BVI decision, in which it was held that accountholders have standing as contingent creditors to present a winding-up petition against the issuer, unexpectedly stretches those limits. This article examines whether that decision is correct.
12 January 2025MFN clauses in private credit facility agreements
This article examines most-favoured nation clauses (MFNs) in private credit facility agreements in recent years with a particular focus on how MFN clauses are typically calculated and the scope of the carve-outs which often feature in such clauses.
12 January 2025Indirect transfers of value “at the expense of” a claimant: comparative perspective
An essential ingredient of an unjust enrichment claim is that the enrichment be “at the expense of” the claimant. In a typical case where the claimant transferred value to the defendant directly, the requirement is obviously met. Where however more than one transaction and/or entity is involved, the analysis will have to be more carefully considered. Terna Energy Trading DOO v Revolut Ltd [2024] Bus LR 1401 (Comm) provides much-needed clarification here, offering analyses in terms of an agency relationship and a series of co-ordinated transactions. Singapore and Hong Kong both adopt a very similar – if even slightly broader – approach.
12 January 2025Liability management exercises in England: where are we?
In this article the authors consider how an English court might view a US-style liability management exercise which: (i) relies on the consent of a majority of creditors within a class to bind a minority within that class; and (ii) treats dissenting creditors less favourably than assenting creditors.
12 January 2025“Green revolution”? Solicitors’ duties in the light of risks relating to climate change
In this article the authors consider the impact on solicitors engaged in banking and finance transactions of the Law Society’s recent Guidance on the Impact of Climate Change on Solicitors . How is growing awareness of the potential risks associated with climate change affecting the nature and content of solicitors’ duties – and potential liabilities – to their clients?
12 January 2025Valuation date in cryptoasset claims
The volatility of many cryptoassets is such that the date on which they fall to be valued for damages assessment can be critical to the commercial viability of crypto litigation. Yet this is a subject that receives comparatively little focus. This article reviews two recent cases, one from each of the English and Singaporean High Courts, where the question of valuation date for cryptoassets has arisen and, on the basis of those decisions, suggests a practical framework for approaching valuation date issue in typical cryptoasset disputes.
12 January 2025Ending LIBOR: a landmark ruling on Tough Legacy contracts
The High Court case Standard Chartered PLC v Guaranty Nominees Ltd [2024] EWHC 2605 (Comm) and others addressed “Tough Legacy” contracts, which referenced LIBOR but could not be amended consensually. Standard Chartered sought a ruling on substituting LIBOR with a similar rate after synthetic LIBOR stopped in 2024. In a strong and well-reasoned judgment, the two-judge court ruled that an implied term was needed for business efficacy. It endorsed CME Term SOFR with a spread adjustment as an objective alternative to LIBOR, enhancing contractual certainty for future cases. This decision underscores the Financial Markets Test Case Scheme’s value in resolving key financial uncertainties.
12 January 2025The Building Safety Act: issues for lenders
Since the Building Safety Act 2022 gained Royal Assent on 28 April 2022, there has been extensive commentary and litigation on the many issues which arise between landlords, leaseholders, and developers. Less so, in the case of lenders financing affected developments and/or investments. This article reflects on some considerations which can arise, in particular in the context of the higher-risk building management requirements in Pt 4, and the so-called “leaseholder protections” in Pt 5.
12 January 2025The cost of further assurance
When a further assurance clause (FAC) provides that one party to a loan agreement is to take steps “at the cost” of one of the other parties, sundry questions may arise as to when that debt falls due; whether the debt is subordinated to that owed to other lenders; how it is to be quantified; and how it might be recovered. This article considers those issues where a mezzanine lender has assumed an obligation to provide further assistance or assurance at the request of a senior lender, on the basis that the costs are to be borne by the senior lender or the borrower.
12 January 2025Enforcement against Indian obligors: key considerations
The Indian legal framework provides various enforcement options to creditors for debt recovery vis-à-vis obligors. The availability and exercise of these options depend on the nature of the obligations involved, and the legal status of creditors and debtors, and therefore is complex. While each option provides an effective framework, they are also fraught with their respective advantages and disadvantages.
12 January 2025
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