Feature

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.

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.

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.

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.

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.

The potential impact of the new UK Listing Rules on securities litigation

The radical restructuring of the UK listing framework by the Financial Conduct Authority (FCA) has shifted greater risk to investors. This article examines the potential impact of the overhaul of the regime on future claims brought by shareholders under ss 90 and 90A of Financial Services and Markets Act 2000.

Lost in the labyrinth: the Court of Appeal in KVB Consultants

The decision of the Court of Appeal in KVB Consultants Ltd & Ors v Jacob Hopkins McKenzie Ltd & Ors  [2024] EWCA Civ 765 has important implications for anyone who deals with, appoints or acts as an appointed representative (AR). It applied a number of principles from existing case law but reached a surprising conclusion regarding how a principal can limit the responsibility it takes for its AR.

From London to Berlin: insights on taking security over receivables in Germany

This article explores some of the complexities and key considerations for lenders and legal practitioners when taking security over receivables in Germany. We consider: (i) the types of security that can be taken over receivables and their key features/formalities; (ii) how to navigate contractual restrictions on transfer; (iii) potential pitfalls when taking security over receivables; and (iv) secured creditors’ priority when realising security over receivables in an insolvency.

Money laundering in the supply chain: the use of “adequate consideration” to “cleanse” criminal property

Section 329 (2)(c) of the Proceeds of Crime Act 2002 exempts a person from criminal liability where criminal property is acquired for adequate consideration. Previous authority appeared to suggest that the provision of adequate consideration had the effect of "cleansing" criminal property. Thus, anyone who subsequently dealt with the property would not commit a money laundering offence. 

In Rex (on the application of World Uyghur Congress) and National Crime Agency  [2024] EWCA Civ 715, 26 June 2024  the Court of Appeal rejected this interpretation. In a decision which will have significant implications for businesses and professional advisors, the court held that the “adequate consideration” exemption is no more than a personal exemption. It has no impact on the status of the property as criminal property or recoverable property. It does not therefore operate to cleanse tainted property. 

How to address the “possession or control” issue in the UK Financial Collateral Arrangements

This article examines the legal uncertainties surrounding collateralisation in the UK, focusing on the Financial Collateral Arrangements (No.2) Regulations 2003, SI 2003/3226. It explores the challenges posed by the “provision” of collateral and the “possession or control” test, especially in practical portfolio management and derivatives markets. Through an analysis of key case law, the article identifies inconsistencies and recommends separate definitions for “possession” and “control”. These proposed reforms aim to align legal definitions with modern financial practice, thereby enhancing legal certainty, reducing systemic risk, and supporting the resilience of financial markets.