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Restitutionary claims in “failed” loan documentation
Most loan agreements are carefully drafted documents designed to operate through carefully specified mechanisms. But when a contract fails for some reason, or stops applying, the borrower is likely to be required to repay the money that has been obtained through a restitutionary claim. What are the bases for such claims? And how do they relate to the intended contractual provisions?
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 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 2024Hacked crypto-accounts, the English tort of breach of confidence and localising financial loss under Rome II
In this article the authors consider Fetch.AI Ltd v Persons Unknown (15 July 2021, Unreported), an interim application made ex parte and heard in private, which demonstrates a concerning potential for divergence between the English and EU courts on the application of the Rome II Regulation.
28 May 2024The exciting world of NFTs: a consideration of regulatory and financial crime risks
The recent resurgence of, and then the explosion in, trading in non-fungible tokens (NFTs) represents one of the most interesting and legally challenging developments in the cryptoassets space. This article discusses some of the regulatory and financial crime risks surrounding trading in NFTs, with a particular focus on investor protection, fraud and money laundering and examines aspects of the regulatory frameworks in this space.
28 May 2024Don’t trust the trust: Romanian chapter
This article considers the custodianship of securities owned by collective investment undertakings under Romanian law and whether the law on fiducia is sufficient to protect client assets against the creditors of the custodian.
28 May 2024Claims against ESG rating agencies: a hopeless task?
In this article, the author considers the possible claims an aggrieved party may have against an ESG rating provider in circumstances where that party considers that it has suffered a loss as a result of an inaccurate ESG rating decision.
28 May 2024Prudential consolidation under the IFPR: the connected undertakings conundrum
In this article, Leonard Ng and Qalid Mohamed consider the concept of “connected undertakings” under the new UK Investment Firms Prudential Regime (IFPR). They highlight certain concerns regarding the scope and application of consolidated supervision with respect to the concept of connected undertakings.
28 May 2024Alternatives to private law causes of action when challenging termination of a banking relationship
In this article the authors explore two alternative means of challenging a bank’s decision to terminate a customer relationship or freeze the operation of an account beyond private law causes of action.
28 May 2024Dovetailing between the Judgments Regulation and the Insolvency Regulation
In recognition of the unique features of insolvency law, the EU developed two distinct jurisdictional and recognition regimes for civil and commercial matters on the one hand, and insolvency on the other. The relationship between the two regimes has been controversial, but it is now widely accepted by national courts and the CJEU that the regimes are intended to dovetail into one another. In theory, dovetailing ensures that the regulations constitute a comprehensive regime for all civil proceedings. In practice, it is often unclear which set of rules applies, and whether particular proceedings are within the scope of both regulations, or neither. This article examines the difficulties of dovetailing, and the continued relevance of dovetailing after the UK’s exit from the EU.
28 May 2024
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