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Electronic trade documents: what is a reliable computer system? and problems in contracting for a “reliable system”
The International Trade and Forfaiting Association (ITFA) has recently published an “Addendum” to its Guide to Digital Negotiable Instruments in connection with the Electronic Trade Documents Act 2023. The ITFA Addendum recommends that members might adopt a contractual term: “The [Issuer/Drawer/Obligor] and the [Holder] agree for the benefit of themselves and any subsequent [Holder] of this [… ] that the [relevant system] constitutes a ‘reliable system’ for the purposes of the Electronic Trade Documents Act 2023 and they agree not to challenge it being a reliable system for the purposes of the Electronic Trade Documents Act 2023”.1 This article discusses whether that term provides a solution to the problem that it purports to address, and some legal issues that may arise.
03 June 2024ESG as a case-study in legal uncertainty*
This article focuses on the nature and consequences of legal uncertainty in the context of ESG and the related issue of whether law reform might improve legal certainty.
03 June 2024Delisting the dead: a UK perspective
Dieudonné Ozia Mazio was a smuggler mixed up in violence in the Democratic Republic of the Congo. Anwar Al-Awlaki was a Muslim cleric in Yemen, once called the world’s “most dangerous ideologue”. Mazio and Al-Awlaki are extreme examples of sanctioned dead people. They died many years ago, but their names remain on UK and other sanctions lists. Their names provide a point of entry into live issues about “delisting” or taking names off sanctions lists. What is the current state of the UK’s sanctions list? How does delisting work? How important is it? Can we make it better? How? What impact does the current system have on human rights? The discussion below tackles these issues and argues for reform of how the UK government reviews its sanctions list. This article also aims to provoke debate. The time is right, pending further inquiry into UK sanctions policy. There may be a chance to influence legislative plans for 2025.
03 June 2024Is crystallisation crystal clear?
In this article, Tina Kyriakides considers issues surrounding the crystallisation of floating charges including whether partial crystallisation, de-crystallisation and re-crystallisation is possible.
03 June 2024Voting issues in debtor schemes of arrangement and restructuring plans: the rights of sub-participants
In this article Robert Amey considers a sub-participant’s right to vote on a scheme of arrangement or restructuring plan with a look at its treatment as a contingent creditor and whether the analysis which has been applied to beneficial bondholders can be carried across.
03 June 2024The correct approach to findings of foreign law: precedent and policy
This article considers the recent Court of Appeal decision of Banca Intesa Sanpaolo SpA v Comune di Venezia [2023] EWCA Civ 1482 and focusses on some of the potential implications of that decision on the approach to findings of foreign law in English proceedings.
03 June 2024Are corporate lawyers interested in governing law?
In this article Philip Wood CBE KC (Hon) considers whether corporate lawyers are less interested in the question of what law to choose to govern their transactions than financial lawyers.
03 June 2024When private equity met private debt: conflict management in a multi-strategy world
As the prominence of private debt steadily increases within the alternative assets universe, there are an increasing number of PE firms and other financial institutions expanding their product lines to include a credit arm. At the same time, private debt fund sponsors are differentiating their investment focus within the debt space and in certain cases moving into private equity as well. Regardless of the starting point, expansion by a private fund manager into multiple investment strategies presents a number of potential conflicts of interest that require careful consideration and management.
29 May 2024Possessable or non-possessable? OBG v Allan and the future of intangibles
The case of OBG v Allan [2007] UKHL 21 in the House of Lords discussed expanding the tort of conversion to things in action but considered it at para 321 to be “too radical” and that there was a clear distinction to be drawn between the “wrongful taking of a document … and the wrong assertion of a right to a chose in action”. In this article the author explores the position of intangibles such as digital assets in relation to being property and thus possessable.
29 May 2024Gross negligence in trustee investment decisions: Manita Khuller v FNB International Trustees Limited
In this article Kira King considers the principal issues in the recent decision of the Guernsey Court of Appeal in Manita Khuller v FNB International Trustees Limited [2020] GCA051.
29 May 2024
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