Feature

Marshalling 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. 

Sanctions defences after Celestial Aviation: when does s 44 of SAMLA 2018 help?

In this article Tom Leary considers the scope of sanctions-based defences under s 44 of the Sanctions and Anti-Money Laundering Act 2018 for banks and financial institutions faced with debt claims, following the Court of Appeal’s decision in Celestial Aviation Services Limited v Unicredit Bank GmbH, London Branch  [2024] EWCA Civ 628.

Two continents separated by a common language? Harmonising US and European loans

Loan terms that were once predominantly a feature of US loan agreements have over the last decade been more frequently imported into European loan agreement. It has now become common in the European syndicated term loan B (TLB) marker to include "blended" terms, where English law loan agreements incorporate terms and concepts more typical of US loans. Differences do remain across the two markets, and  we will conduct a comparison exercise at the end of this article to show how key terms vary. 

In addition, the contrasting legal and insolvency backdrop in the US versus European jurisdictions necessarily dictates structural differences in credit support and intercreditor frameworks. Drafting complexities can therefore arise if, for commercial reasons, a deal is documented using US terms for a European group, or vice versa, using European terms for a US-dominant group. Here, parties need to be alive to protections you may need to transplant from one set of market norms to another. 

The law applicable to legal tender of the digital euro: the end of the conundrum?

This article examines the conundrum of the law applicable to legal tender and its definition in the context of the European Commission’s 2023 proposals for regulations establishing the digital euro and clarifying the legal tender of euro banknotes and coins. The proposed regulations bring a welcome clarification of the concept of legal tender and define its scope of application for the digital euro. While the scope of application is not wholly without criticism, it is welcome as it stresses the core payment function of legal tender and enshrines the place of payment as the key connecting factor. It is thus argued that the place of payment rule may be read as a unilateral conflict-of-laws rule, which may also be applied universally as a multilateral conflict rule for better integration within the existing European conflict-of-laws system. A multilateral conflict rule would arguably bring greater legal certainty on matters of payment of monetary obligations.

How much is a word worth?

The parties to a finance transaction are understandably focussed on the commercial deal but the words used in the relevant contracts for the transaction really do matter. The choice, order or absence of words can in some circumstances have a direct monetary impact on the contracting parties’ positions. In this article, the authors consider principles of contractual construction, with recent illustrations from the world of finance and suggestions as to steps parties can take to avoid ambiguity and uncertainty.

Sec v Ripple and MiCAR: the classification of cryptoassets as securities

The SEC v Ripple Labs, Inc. case¹ has attracted great interest because of its implications for the qualification of digital assets as securities and, in general, for the future of cryptos in the US, where digital assets are not regulated as such. The EU has adopted a far-reaching regulation of cryptoassets (MiCAR),² which however, does not apply to cryptoassets that fall under the definition of financial instruments, thus leaving the question open as to the applicable regime. To compare potential outcomes had the case been heard in the EU, this article focuses on the issue of whether and under what conditions cryptoassets can be classified as financial instruments under EU law, and the legal implications of such a classification. This article further analyses the interaction between MiCAR and certain existing national regimes that attract to regulation financial products other than financial instruments. Additionally, a summary of the corresponding regulatory landscape in the UK is provided.

Potential litigation risk in private credit and fund finance: disclosure, consent and valuation

In this article Alex Potts KC identifies the three main areas of litigation, and regulatory enforcement activity, associated with NAV finance in the Cayman Islands.

A new class of debt instruments: carbon credit linked bonds

The genesis and development by IBRD and its structuring banks of bonds with coupons linked to the issuance of carbon credits has been an exciting development in the capital markets and in the natural capital space, though the asset class is not without its challenges. This article explains how this new type of bond works and considers how the asset class can be further developed into a widely used instrument capable of providing large-scale upfront funding to natural capital projects across the globe.

Secured claims in French restructurings: lessons from the 2021 reforms and recent large case precedents

In this article, Jean-François Adelle considers the treatment of secured creditors in in-court restructurings following the 2021 reforms.

Security financial collateral arrangements and the crystallisation of floating charges

In this article Jonathan Haines considers whether the crystallisation of a floating charge means that it can qualify retrospectively under the Financial Collateral Arrangements (No. 2) Regulations 2003 (2003/3226) and the impact of that on other creditors.