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Atishoo, atishoo: we all fall down? Implications of business disposals upon cessation of business clauses
In this article Charlotte Eborall examines how a company considering a change in the entity’s structure or business by divestment of part or all of its business can avoid potential issues relating to the triggering of a “cessation of business” event of default clause. It also considers how the courts might approach the question of interpretation of such clauses should one proceed to trial.
01 July 2025Layering it on thick: the evolution of the super senior intercreditor agreement
It has been over five years since the Loan Market Association (LMA) published its form of super senior/senior intercreditor agreement for use on European direct lending transactions. While this document has become the starting point for intercreditor agreements on almost all of these transactions in Europe, there have been a number of evolutions to its terms during this period to reflect the requirements of financial sponsors as they look at more complex capital structures to meet the financing needs of their portfolio companies. This article tracks some of these developments and looks ahead to further changes which may be on the horizon.
01 July 2025Schrödinger’s Deed: can an instrument be two things at once?
Following the obiter comments of HHJ Pelling KC in Macdonald Hotels Limited & Anor v Bank of Scotland PLC [2025] EWHC 32 (Comm), there may be reasons for the financial sector to be concerned about a common approach to the execution of agreements in cases where the counterparties intend the instrument to be simultaneously both a deed (for one or more parties) and a simple contract (for the other party or parties). James Hall and William Golightly of Gatehouse Chambers consider the court’s treatment of the “intention requirement” for deeds in s 1(2) of the Law of Property (Miscellaneous Provisions) Act 1989.
09 June 2025Ups and downs of the EU Benchmarks Regulation
Benchmarks play a crucial role in global financial and commodity markets. They measure different economic underlyings such as interest rates, currency exchange rates, baskets of shares and commodity prices, allowing market participants to transfer risk or gain exposure by referencing a commonly understood metric. This article traces how the EU Benchmarks Regulation was developed to safeguard the financial system, but introduced unintended risks, which are now being addressed. This article also considers the consequences of amendments to the EU Benchmarks Regulation, for regulated benchmark administrators and users.
09 June 2025MiCA: unresolved questions
The EU Markets in Crypto-Assets Regulation has been in force for the better part of a year. Still, many legal questions surrounding its scope of application remain unanswered and new questions are emerging at a rapid pace. Among those open issues are whether European Markets in Crypto-Assets Regulation’s (MiCA’s or MiCAR’s) asset-referenced tokens can be characterised as derivative financial instruments under MiFID II, as well as their differentiation from “other” cryptoassets. The understanding of white paper obligations is evolving. The question of how cryptoassets service providers (CASPs) may use cryptoassets initially received for custody purposes is being debated, and the link between EU and national law raises further questions about how to insolvency-proof a CASP’s custody business. This article aims to shed light on these topics and provide ideas for an understanding of MiCA’s provisions going forward.
09 June 2025The Law of Property Act 1925 turns 100 this year: Happy Birthday!
The Law of Property Act 1925 (LPA) came into force 100 years ago this year. It received Royal Assent on 9 April 1925, and it came into force on 1 January 1926. The LPA brought overdue coherence, eased property transactions for the next century, and still forms the basis of English land law today. We set out why this law came about, how it helped, and how it continues to help us.
09 June 2025The LMA’s guidance on fallbacks to interbank term rates: a call to arms
Whilst the lack of incident when the last LIBOR lights were turned off at the end of September was a relief to many, the Loan Market Association’s (LMA’s) recently released Guidance on fallbacks to interbank term rates and LMA documentation (LMA Guidance) is a crucial reminder of the importance of fallbacks to other interbank term rates and an indication that there remains ground to cover.1 Whilst the key points are discussed below, the LMA Guidance will reward careful reading by all those involved in loan transactions.
09 June 2025Splitting the difference: transfer of assets and liabilities in restructurings to reset business profile
A business may need to restructure for a variety of reasons; these may be wider industry issues or issues specific to the business, certain assets or segments therein. Issue may arise, among other reasons, due to underperformance, rising costs or a diversion of management time. Management may look at a business in a way that differs from creditors, with the former particularly interested in future growth and the latter likely looking at shorter term cashflows. In a restructuring context, creditors may make the transaction conditional on a refocus of the business as a part of a wider deal to support the business (or a part thereof) in its future operations. Alternatively, there may be alignment on the non-core nature of certain assets and, as part of a restructuring, an agreement to isolate the value of those assets to repay creditors. This article explores general themes that may be relevant when splitting certain assets and liabilities as part of a restructuring. Crucially, transactions of this nature are bespoke and, whilst they are unlikely to be the prevailing method of restructurings, they may provide optionality or tailored solutions which may benefit all parties.
09 June 2025EMIR 3.0, post-trade risk reduction services and the initial margin threshold: an unintended consequence
Post trade risk reduction (PTRR) services are not new to over-the-counter (OTC) derivatives markets. Through EMIR 3.0, policymakers acknowledged their function (reducing counterparty credit risk and/or operational risk) and fostered their usage by laying down the exemption from the clearing obligation. Admittedly, however, they did not consider any impact of PTRR on margin requirements for non-centrally cleared OTC derivatives. Performing PTRR – specifically portfolio rebalancing – is set to increase the aggregate average notional amount (AANA). As the latter is calculated to determine whether the initial margin (IM) threshold is exceeded, counterparties may opt to avoid using PTRR to avoid becoming subject to the burdensome IM requirements. An outcome not in line with the intention to foster PTRR.
09 June 2025Cryptoasset regulation: a comparative analysis of UK and EU regimes
This article provides a comparative analysis of the regulatory approaches to cryptoassets in the UK and the EU, focusing on the UK’s recently proposed Financial Services and Markets Act 2000 (Regulated Activities and Miscellaneous Provisions) (Cryptoassets) Order 2025 (UK Draft Order)1 and the EU’s Regulation 2023/1114 on Markets in Crypto-Assets (MiCAR). The article examines key differences in the approach, definition and categorisation of cryptoassets, scope of regulated activities, and the territorial application of each regime, concluding with a discussion of future outlook and regulatory ‘blind spots’ in each jurisdiction.
09 June 2025
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