Feature

Alternate realities: transactional and economic reality in APP fraud and unjust enrichment

Two recent conflicting judgments have considered whether, for the purposes of a claim in unjust enrichment against a receiving bank, a transfer of funds following an authorised push payment fraud is made “at the expense of the claimant”. In this article we consider the application of the concepts of “transactional reality” and “economic reality” in this inquiry.

Market abuse and restitution orders: challenges for FCA policy

This article addresses the potential for the Financial Conduct Authority’s use of its powers to order restitution for market abuse against a listed or publicly traded company/issuer, to undermine the liability regime for such companies to their investors set out elsewhere in the Financial Services and Markets Act 2000 (FSMA). It suggests that the proportionate issuer liability regime which was adopted, after extensive consultation, between 2006 and 2010, and is now contained in s 90A and Sch 10A FSMA, is a key aspect of UK public market competitiveness and that restitution should not become a substitute means for investors to recover losses for disclosure breaches from the issuer, absent fraud.

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. 

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.

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.

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.

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.

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.

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.

The limitations of limited recourse

This article unpacks the risks for lawyers advising on financing transactions which are, on their face, limited recourse transactions, looking at alternative routes to recourse which funders may have against the operating companies, their directors and shareholders who utilise these financing structures. The underlying security assets are typically some or all of real property, shares, receivables and bank accounts.