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Ipso facto clauses: the international dimension
This article considers the new provisions in the Corporate Insolvency and Governance Act 2020 (CIGA) on so-called ipso facto clauses and how those provisions interact with cross-border contracts.
13 June 2024ESG integration and Social Taxonomy developments in the EU Sustainable Finance Framework
This article considers recent Social Taxonomy developments under the EU Sustainable Finance Framework and what the introduction of a Social Taxonomy could mean for financial market participants and financial products.
13 June 2024When COVID-19 infects finance contracts: frustration, force majeure and illegality
COVID-19 will often cause borrowers to breach their loan-to-value covenants or payment or other obligations. Certain risks making performance impossible or more burdensome will be provided for in the express terms, but something as specific as a pandemic such as COVID-19 will not. The borrower will naturally look for legal routes to suspend or otherwise evade its ongoing payment obligations. This article considers that situation.
13 June 2024Brexit and dispute resolution clauses: the options for finance parties
The extended debate about the impact of Brexit on the popularity of English law and English jurisdiction clauses in international commercial contracts intensified as the Brexit transition period came to an end at 11pm on 31 December 2020. The UK-EU’s new trade deal, struck on 24 December 2020, did not cover arrangements on civil justice and so, from 1 January 2021, amongst other changes in this area, the UK is now no longer bound by two core instruments in the field of private international law: the Recast Brussels Regulation and the Lugano Convention.1 These instruments concern the allocation of jurisdiction and the enforcement of judgments in the EU and, in relation to the Lugano Convention, in Switzerland, Iceland and Norway. In a further development, on 1 January 2021, the UK formally re-joined another international convention dealing with the allocation of jurisdiction and the enforcement of judgments, the 2005 Hague Convention on Choice of Court Agreements (the Hague Convention), as an independent sovereign state.
13 June 2024Equivalence and market access in a post-Brexit world
At the end of March 2021, the UK and EU agreed a Memorandum of Understanding which provides a framework for ongoing regulatory co-operation and dialogue on financial services in the post-Brexit environment. However, it does not significantly alter the new reality for firms doing cross-border business between the UK and EU, where UK firms face a patchwork of national regimes for market access into the EU, coupled with a limited set of equivalence determinations.
13 June 2024Settlement Finality: some UK and EU perspectives
In this article, Paula Moffatt outlines how the Settlement Finality Regulations work, examines what they mean for transactions entered into in the run up to a system participant’s insolvency, and considers some of the issues raised in the European Commission’s consultation on the Settlement Finality Directive now that the UK is a third country.
13 June 2024LMA incremental facility wording: one size fits all?
In this article the authors examine the process of establishing an incremental facility using the steps prescribed by the Loan Market Association’s (LMA) template wording and consider whether it represents common practice in the mid-market. An incremental facility (otherwise known as an “additional” or “accordion” facility) is an uncommitted facility (usually capable of being made available for acquisition, capex or general working capital purposes) which can be established by a borrower without the need to seek lender consent or amendments to the finance documentation provided that certain pre-agreed parameters are complied with.
13 June 2024Validation of the Financial Collateral Arrangements Regulations post-Brexit: legal considerations
This article considers the implications of the unusual validating provisions in the Financial Services Bill (HL Bill 162), which retrospectively validate the Financial Collateral Arrangements (No 2) Regulations 2003 (SI 2003/3226) notwithstanding any lack of power to make the Regulations, in circumstances where the Regulations give effect to EU Directive 2002/47/EC. It examines the critical questions that would have arisen pre-Brexit, and those that now arise, in relation to whether such validating legislation is lawful and argues that such validation is likely to be effective post-Brexit.
13 June 2024Knowing receipt and the proprietary base
A recent High Court decision in a knowing receipt claim against a Saudi Arabian bank has considered the vexed issue of whether a beneficiary must have a continuing equitable interest enduring upon receipt of the property by the recipient to establish a knowing receipt claim. In a detailed and well-reasoned judgment Mr Justice Fancourt answered that question in the affirmative.
13 June 2024Consent under PSD2 and the GDPR: squaring the circle
The scope for misalignment between the payments and the data protection regimes in Europe and the UK gives rise to a number of challenges for banks and fintechs. This issue is particularly evident in relation to the potentially inconsistent requirements for individual consent.
13 June 2024
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