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The expanding definition of contingent debts and its impact on winding-up petitions
Clive Wolman explains why there may no longer be a valid legal basis for a company to be able to restrain the presentation, advertisement or pursuit of a winding-up petition against it merely by showing that it is genuinely and substantially disputing the petition debt. Changes in UK insolvency and company legislation, reinforced by changes in accounting standards and by judicial rulings, have led to a broader definition of a “contingent” debt or liability. It now includes the contingency of a court finding that the disputed debt or liability does exist.
13 June 2024Structuring loan buybacks
In this article the authors consider the structure of loan buybacks with a consideration of the documentary changes made by the Loan Market Association (LMA) as well as some of the approaches that have evolved in the market to address buybacks.
13 June 2024Loss of a chance in commercial transactions: where are we now?
Loss of a chance principles apply to claims for lost transactional opportunities when the counterfactual case depends on the actions of a third party. This article discusses the relevant principles, their application to transactional cases, and the impact of any wrongdoing by the claimant on the lost opportunity claim.
13 June 2024Revisiting Canary Wharf v EMA: applying the “radically different” theory of frustration
In this article Zahra Al-Rikabi considers the juridical basis for the doctrine of frustration following Canary Wharf v EMA and in light of the renewed interest in the doctrine following the global COVID-19 pandemic.
13 June 2024Financial product mis-selling claims against banks: the increasing willingness of the English courts to strike out allegations of fraud in “appropriate” cases
Traditionally, in a financial product mis-selling context, claims against financial institutions involving allegations of fraud, LIBOR manipulation and unlawful means conspiracy have not been amenable to strike out or summary determination. However, the English courts are increasingly demonstrating a willingness to deal with opportunistic claims against banks (and other third parties) involving allegations of fraud without the need for a full trial, in “appropriate” cases. Two recent High Court judgments provide guidance on when the court will consider it appropriate to do so: Boyse (International) Limited v Natwest Markets plc & Anor3 and Elite Properties and Ors v BDO LLP.4
13 June 2024English schemes and the Cape Town Convention
The impact on the aviation sector of the COVID-19 pandemic and governmental restrictions on air travel and other movement controls has been severe and has resulted in a number of airline restructurings. This article examines the use by an airline of a scheme of arrangement under Pt 26 of the Companies Act 2006 (2006 Act), as a mechanism for effecting a compromise with certain of its creditors, and the interplay between a scheme and those creditors’ rights under the Cape Town Convention and associated Aircraft Protocol (CTC), as implemented in the UK by The International Interests in Aircraft Equipment (Cape Town Convention) Regulations 2015 (Regulations). These considerations arose in the decisions of the English court in MAB Leasing Limited.1
13 June 2024The issues with interest calculations in arbitration awards
There is often much angst about choosing the right method of calculating interest on an arbitral award and, indeed, which interest rate to use. There are no criteria that can be applied a priori to assist in the selection in a particular case. Rather, the key is to determine what monetary return the injured party might have earned had they had use of the arbitral award over the relevant period of time. This amount can then be readily translated into a method and interest rate to suit the arbitrator.
13 June 2024The impact of Brexit on the UK and European legal professions
This article explores the implications of Brexit for the practising rights of UK barristers, solicitors and advocates in the EU and for European lawyers in the UK, with a focus on England and Wales. Although the UK’s withdrawal from the EU has resulted in some challenges for European lawyers, England and Wales remains an open legal market. For UK lawyers in Europe the situation varies considerably by member state and it is incumbent on lawyers to carefully research practising rights and immigration rules ahead of travel.
13 June 2024Opening innovation or opening up to risk? The potential liability framework for Open Finance
This article summarises some of the key points in the Financial Conduct Authority’s recent Call for Input regarding Open Finance. Certain risks associated with Open Finance are highlighted and possible issues surrounding assigning legal liability in open finance models are addressed.
13 June 2024Out of scope: Scope Ratings’ appeal against ESMA fine fails
In a December 2020 decision published on 12 January 2021, the Joint Board of Appeal (BoA) of the European Banking Authority, European Insurance and Occupational Pensions Authority, and European Securities and Markets Authority (ESMA) (together the European Supervisory Authorities) dismissed an appeal1 brought by Scope Ratings GmbH (Scope) against ESMA’s May 2020 decision to impose a €640,000 fine.2 In this article the authors assess the implications of the decision.
13 June 2024
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