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Please release me, let me go: complexities in release provisions

Shanghai v Reignwood: what makes a guarantee “on demand”?

Guarantees are essential features of commercial financing transactions. But the nature of the guarantor’s liability may vary significantly. Is the guarantor liable only when the underlying obligor has defaulted on its obligations (a “see to it” guarantee) – or as soon as the guarantee’s beneficiary makes a good faith demand (an “on demand” guarantee)? Shanghai v Reignwood [2021] EWCA 1147 (Court of Appeal) illustrates the importance of the distinction, and how it can turn on fine points of construction.

Carbon credits under the UK Emissions Trading Scheme

The UK recently established a new Emissions Trading Scheme following the UK’s departure from the EU. This article explores the legal nature of carbon credits under the new UK Emissions Trading Scheme by reflecting upon the legislative framework underlying the scheme, the case law surrounding carbon credits under the EU Emissions Trading Scheme and recent developments regarding the legal status of cryptocurrencies as a form of intangible property.

Decentralised finance (DeFi): a game-changer or just a passing fad?

DeFi is a term used to describe decentralised applications that provide financial services using blockchain technology. DeFi leverages on technologies such as smart contracts and open-source protocols to execute peer-to-peer transactions without the use of any centralised party. Given the increasing prevalence and receptiveness towards DeFi, stakeholders in the financial industry should possess some basic understanding of this new alternative to the traditional financial system. This article outlines the distinctive characteristics, underlying benefits and risks of DeFi applications, and the regulatory approaches towards regulating such applications.

Protection of client assets under Belgian law and trust-like structures

The purposes of this article is to give a brief overview of the reception of the trust concept under Belgian law, including the recognition of a foreign law trust, as well as to provide a description of certain trust-like structures under Belgian law.

The social side of sustainable finance

This article looks at the rise of social loan financing spurred on recently by COVID-19 recovery financing and discusses the challenges for borrowers and lenders in using the use of proceeds and sustainability-linked social loan structures.

A fresh look at the three Rs: the EU’s CCP Recovery and Resolution Regulation

The EU Regulation on Recovery and Resolution of CCPs came into law in February 2021. It sets a clear path for CCPs in near-terminal difficulties, broadly following previous international guidelines. New tools have been created to enable CCPs to recover, and a familiar toolkit has been made available to resolution authorities. Yet problems remain: the purpose of resolution is still unclear, the tools for resolution all have drawbacks, and the checks and balances on the process are weak. Nonetheless, this article concludes that the Regulation is a valuable model law for other jurisdictions, while important unanswered policy questions concerning CCPs should remain on the agenda for debate.

Lloyd v Google LLC: the end of class action data privacy claims or just the beginning?

In this article the authors consider the impact of the UK Supreme Court decision in Lloyd v Google LLC on banks and other financial institutions which typically control vast quantities of (typically) relatively sensitive financial data.

Protection of clients’ securities in Luxembourg law

In this article, Paul Mousel considers the methods for protecting investors’ rights in securities under Luxembourg law.

Transfer restrictions in leveraged lending transactions: time for a re-assessment?

European leveraged lending practitioners will need no telling that documentary terms have been something of a one-way moveable feast in favour of borrowers and sponsors for a number of years. In particular, the extent of a lender’s right to transfer its participation in a loan facility to another institution has been gradually eroded, with the “new normal” including significant fetters on transfer rights. Meanwhile, capital reforms continue to increase the cost to bank lenders of holding loans on their balance sheets and have resulted in banks seeking to optimise their balance sheets through sales in the secondary loan market and through the use of synthetic risk transfers. Is it therefore, time for bank lenders to re-assess the acceptability of transfer restrictions and to push for fewer restrictions?¹