Feature

Managing currency risk in emerging Asia investment: towards diversification

Nicola Yeomans undertakes a review of existing legal and financial mechanisms for managing currency risk in private capital investment into emerging Asia and assesses the 2024 ABAC recommendations for alternative mechanisms for managing the risk through a bond linked to a diversified basket of currencies.

Misrepresentation and the constructive trust: a hunt for clarity

This article addresses the debate which has arisen from Lord Browne-Wilkinson’s much cited dictum that equity imposes a constructive trust on a fraudulent recipient whenever property is obtained by fraud.  It explores the rationale for the imposition of a constructive trust in the context of the underlying legal principles and considers how those principles have been approached in the key authorities. In an effort to identify a coherent rationalisation of the authorities, it then focuses on the decision in Halley v Law Society and addresses whether that decision can be reconciled with other authority, particularly the recent Supreme Court decision in Philipp v Barclays Bank UK plc .

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.

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.

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. 

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.

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.

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.

How long can a senior lender withhold repayment confirmation to discharge security in an intercreditor agreement?

In this article the authors consider the question for how long a senior lender can refuse to give confirmation that the liabilities owed by the borrower to the senior lender have been irrevocably discharged in full.

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.