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Leading the charge (pun intended): international security transactions in the Middle East
This article introduces the latest legislation adopted in the Dubai International Financial Centre (DIFC), one of the Middle East’s leading financial centres, in respect of secured transactions. It discusses the policy objectives underpinning this new legislation, as well as certain innovative legal concepts which were included in it, and which the DIFC Authority (DIFCA) hopes will push the DIFC to the “forefront of best practice” globally.
29 July 2024Judicial review in the financial services sector: a question of risk and reward
Successful judicial review challenges are rare – those in the financial services sector perhaps particularly so. Does the rarity of successful challenges explain why financial institutions may overlook their public law rights when engaging with regulators? This article explores recent examples of judicial review in the financial services sector, the risks involved for financial institutions in bringing such claims, and key considerations for those wishing to exercise their public law rights.
29 July 2024Fixed rate loans: tough break (costs) for borrowers
This article considers the recent decision in Farol Holdings Limited & ors v Clydesdale Bank PLC & National Australia Bank Limited [2024] EWHC 593 (Ch) and its likely impact on the landscape of lender/borrower disputes for the recoverability of break costs and the establishment of an unfair relationship.
29 July 2024The Corporate Sustainability Due Diligence Directive: impact on financial services businesses
The EU’s Corporate Sustainability Due Diligence Directive (CS3D) will be highly consequential for those large EU and non-EU companies that fall within its scope. Despite some misleading commentary to the contrary, the financial sector is in scope of the CS3D as finally agreed by the European legislators in May 2024. In this article, we discuss the extent of these obligations and some uncertainties that remain, especially for asset managers in the private equity and venture capital sector.
29 July 2024Turn the Unfair Terms Directive into a Regulation!
In this article, the authors set out the arguments for replacing the EU Directive on Unfair Terms in Consumer Contracts with a Regulation by identifying the problems with the current legislation and the advantages of a change.
29 July 2024Debt financing of AI companies: identifying “AI assets” for the security net
In this article the authors identify the assets of the AI ecosystem, provide a non-exhaustive methodology for identifying them and explain how you would typically take security over certain of those assets in the context of a debt finance transaction.
29 July 2024Financial sanctions and investment treaty arbitration
Financial institutions may be the subject of sanctions unilaterally imposed by individual states. While sanctions can be challenged through domestic means, foreign investors affected by sanctions have the right to bring proceedings against the sanction-imposing host state before international arbitral tribunals, provided investment treaty protection exists. Final awards, in particular monetary remedies against the host state, can be enforced globally.
29 July 2024Lex situs and its discontents: English security over foreign assets
This article examines the distinction between the contractual and proprietary effects of a transaction in the context of English security over foreign assets. In particular, it considers the way in which creditors address, before and after transacting, the ineffectiveness of English security under the lex situs and the important role of equities arising between the contracting parties.
26 July 2024IOSCO Leveraged Loans and Collateralized Loan Obligations (CLOs) Good Practices for Consideration: how will this impact leveraged loan documentation?
On 3 June 2024, the International Organization of Securities Commissions (IOSCO) published its final report on Leveraged Loans and Collateralized Loan Obligations (CLOs) Good Practices for Consideration . This guidance follows an extensive market consultation exercise which examined the impact on leveraged loan investors of fewer and looser covenant protections in transaction documentation together with a number of other conduct and transparency concerns within the market. In this article Lee Federman and Adam Wolinsky consider four of the good practice measures which focus on key transaction terms.
26 July 2024(Un)reasonable endeavours: force majeure clauses and offers of non-contractual performance
Can a party be required to accept an offer of non-contractual performance so as to overcome what would otherwise be a force majeure event? In its recent decision in MUR Shipping BV v RTI Limited , the Supreme Court held that the answer to this question was “no”, finding that the Appellant was not obliged to accept an offer by the Respondent to pay in euros where the contract provided for payment in USD. While the court’s decision may provide parties with greater certainty when it comes to force majeure clauses, this certainty arguably comes at the expense of a “business common sense” approach, and leaves open the possibility that a contract may be suspended or terminated even where a force majeure event could have been overcome by acting reasonably.
26 July 2024
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