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Liability 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 2025The state of cross-class cramdown in the UK
Part 26A, introduced into the Companies Act 2006 by the Corporate Insolvency and Governance Act 2020 (CIGA), is an important tool to assist companies in financial difficulties, building on the Pt 26 scheme of arrangement. Part 26A contains a relatively thin set of statutory provisions that leave a great deal to be fleshed out by the courts. Judges have risen to the occasion and have begun to develop a structured approach to Pt 26A cases. There are, however, some difficult issues that are emerging in the process. This article aims to pull together a shopping list of these issues, to promote conversation among scholars, practitioners, and policy makers about the way forward.
25 November 2024Knowing is half the battle: the economic torts and lender liability
Lenders’ decisions will often prejudice third parties that have dealt with their borrowers. The third parties might then seek redress from the lenders, in a claim under one or more of the economic torts of: (i) inducing a breach of contract; and (ii) unlawful means conspiracy. This article summarises the key requirements for liability under each of the torts, together with the potential risks that lenders should be aware of in relation to each tort. It then considers the potential steps that lenders can take to mitigate their risk.
24 November 2024How do investors make returns on preferred equity?
In this article, we look at the key features of preferred equity, the fundamental question of how investors make returns and its relationship with Holdco debt.
24 November 2024Marshalling by apportionment: a developing doctrine
Marshalling as an equitable doctrine got into its stride as long ago as the 1700s, and the concept is one that has been developed throughout the common law. The doctrine (or sub-doctrine) of marshalling by apportionment demonstrates that marshalling still holds great potential for further development where there is a first-ranking secured creditor with security over multiple assets and, below it, two or more equally ranking secured creditors with respective interests in one or other of those assets. This article considers marshalling by apportionment in light of the Australian case Callisi Pty Ltd v Sterling & Freeman Advisory Pty Ltd [2023] VSC 300.
24 November 2024English schemes of arrangement, restructuring plans, insolvency proceedings and the impact of sanctions legislation
This article explores the treatment of sanctioned creditors under English schemes of arrangement and restructuring plans, considering the impact of sanctions legislation on class structures and voting, the receipt of consideration and the impact of disenfranchisement in the context of bond restructurings. Separately, it also briefly considers the treatment of voting rights of sanctioned creditors in bankruptcy proceedings.
24 November 2024Draft Property (Digital Assets etc) Bill: laying the foundations for the development of the common law
In this article, Darragh Connell considers the wording of the draft Property (Digital Assets) Bill and the matters that the legislature has left for the common law to develop.
24 November 2024Growing up or coming down to earth? Broader trends in the US CRT market
The pace of deals in the US “credit risk transfer” (CRT) market through the end of 2023 spurred expectations that the US market would catch up to its European “significant risk transfer” (SRT) counterpart, promising more deal volume, issuers and investors. While investor demand continues unabated and some new issuers have entered the market, the pace of growth is cautious, and many transactions are now executed in the form of bilateral CDS transactions that provide more certainty of execution and timing in comparison to CLNs issued by banks or SPVs sponsored by banks. At the same time, new questions are arising from a regulatory focus on bank-financed leverage to CRT trades and uncertainty about the future direction of the Basel capital framework.
24 November 2024
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