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Settlement 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 2024Out of time amendments
Dov Ohrenstein reviews how the courts approach applications to amend claims after the end of relevant limitation periods.
13 June 2024Roll-up rescue financing in Singapore: giving old debt senior priority
At its introduction into Singapore’s restructuring laws in 2017, rescue financing was heralded as value enhancing and associated with a higher probability of successful recovery for distressed companies. This article discusses the application of the rescue financing regime, including the first instance of a roll-up, and the way forward for rescue financing in Singapore.
13 June 2024The European Commission’s Digital Finance Package from the perspective of private law
This article examines the interplay between national (private) law and the legislative measures subsumed under the European Commission’s Digital Financial Package (DFP or the Package). For the reasons explained in this article, the Package may not attain, in full, its harmonisation and single market policy objectives, to the extent that it leaves the question of the legal attributes of crypto-assets to the discretion of national legislators and to the different legal traditions of the EU member states in matters of private law, rather than settling them centrally, possibly by reference to a limited-purpose European private law.
13 June 2024Steaming away from Canada Steamship? The interpretation of exemption clauses in finance documents
Judicial statements over the years have led some commentators to detect a trend away from the use of anything other than general contractual principles in the interpretation of exclusion clauses. Of the special principles at risk, perhaps the best known is the three-stage framework formulated by the Privy Council in 1952 in Canada Steamship Lines Ltd v The King. This article examines recent case law and considers whether that trend may have run its course.
13 June 2024Moving towards digital capital markets: the EIB’s public blockchain bond
In April 2021, the European Investment Bank (EIB) issued its first ever notes in digital form on the Ethereum public blockchain. This was a milestone transaction in several respects: as a true financing using a blockchain register rather than a proof of concept; through the use of Central Bank Digital Currency at issue; and through the development of documentation to address the new technology. This article summarises the key features of the issuance and its relevance to future digital bond issuances.
13 June 2024
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