Feature

Considerations for lenders to infrastructure assets

Lenders continue to structure financing packages to minimise the risk of default. However, wider risks now need to be in focus as the pace of investment in infrastructure increases. There are many different estimates of the amount of investment required in global infrastructure and energy assets. Each country has a different starting point and a different need – but trillions of dollars of investment per year for a sustained period is anticipated, with a significant amount provided by debt. With the rise of private and institutional debt providers alongside active export credit agencies, development finance institutions, wealth funds and commercial debt, the sources of debt capital are expanding to meet demand. In light of that increased debt, this article considers key issues for lenders funding infrastructure projects.

Bank Resolution (Recapitalisation) Bill: good policy, bad politics?

The UK’s resolution authorities successfully handled the failure of Silicon Valley Bank in 2023. The Bank Resolution (Recapitalisation) Bill (the Bill) seeks to address a lacuna identified as part of that process. The Bill is framed as a technical amendment to the regime for handling bank failures but, as this article argues, also highlights tensions between that framework and the government’s plans to improve the competitiveness of the financial services sector.

Transfer restrictions in the age of synthetic credit risk transfer: time for a re-assessment?

Hedging: where is the dividing line?

Hedging is a risk management practice commonly adopted by financial institutions and corporations to manage their exposure to risks like movements in interest rates, currency fluctuations, or commodity price fluctuations. This article highlights the legal distinction between “internal” and “external” hedging, as discussed in Rhine Shipping DMCC v Vitol SA. ¹ It then considers the implications of this legal distinction and practical steps to mitigate any associated litigation risks.

Scotland’s new statutory pledge: taking security over shares

Before the new regime was introduced, to take fixed security over shares in a Scottish company the shares needed to be transferred to the security holder (or its nominee). This causes a myriad of practical problems. The Moveable Transactions (Scotland) Act 2023, which came into force on 1 April 2025, allows (with a little help from the UK government) a new form of fixed security, the statutory pledge, to be taken over shares in Scottish companies that will side-step the bulk of these issues. This article explores the problems previously encountered in taking security over shares in Scottish companies and the advantages (and a few shortcomings) of the new statutory pledge. The old fixed security by transfer remains competent.

Cryptoassets as loan security

In this article Nik Yeo considers when it is possible under English law to create security over cryptoassets, looking specifically at the four forms of security interest: mortgage, charge, pledge and lien, alongside a potential control-based security interest, and the functional security that might be provided by DeFi protocols.

In sickness and in health: a review of transfer provisions in European leveraged loan agreements

Private equity sponsors, with good reason, are very aware of the importance of their portfolio businesses being able to control the types of lenders who hold their debt. They are keen to manage lender relationships throughout their investment period. Equally, it is important for lenders not to be unduly restricted in their ability to trade out of their loans should they need to. This obvious tension in the relationship between the borrower and its lenders has resulted in ever more detailed and restrictive transfer provisions in European leveraged loan agreements. This article considers the details of those provisions.

Understanding co-operation agreements: current boom, fundamental issues and latest trends

In recent years, there has been an increase in the use of Co-operation Agreements in US and European restructurings as a reaction to lenders being caught on the wrong side of a liability management exercise. This article highlights fundamental issues and trends with respect to Co-operation Agreements, discussing practical considerations, recent case developments and the potential further evolution, and use, of Co-operation Agreements in the future.

Protecting 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.

Changing of the (safe)guard: the FCA’s proposals for payments and e-money firms

Payments and e-money firms are subject to a safeguarding regime designed to protect client funds. However, the Financial Conduct Authority (FCA) does not believe the regime is working. The proposals in CP24/20 are intended to address this problem. Interim-state rules will reinforce existing requirements, including by monthly regulatory returns and annual audits. End-state rules will move to a trust arrangement modelled on the regime for investment business, among other changes. As consulted on, the FCA’s proposals will place a greater compliance burden on payments and e-money firms. This may lead to increased enforcement action and consolidation within the sector.