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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 2024The consolidated prudential supervision of investment firm groups in the EU: practical implications on group parent entities
This article aims to provide an overview of the current requirements of the consolidated prudential supervision of investment firms under Regulation (EU) 2019/2033 (Investment Firm Regulation (IFR)) and related legal acts. In particular, it considers the implications of the recently adopted Commission Delegated Regulation setting out regulatory technical standards with regard to the scope and methods for prudential consolidation of an investment firm group (RTS). Given the complexity of the topic, the introduction set out in this article does not touch on every aspect of consolidated prudential supervision in order to provide a concise overview.
03 June 2024Will private credit CLOs emerge as a new funding tool in Europe?
In this article, the author considers the potential for the CLO framework to be applied to private credit portfolios.
03 June 2024Assigning receivables on either side of the Channel: a comparative note on French and English law
As between English law and French law, the key principles behind assigning receivables are similar. The 2016 reform of French contract law has undoubtedly brought the French regime applicable to assigning receivables closer to English law. However, practical differences between the two systems continue to exist. This is due to the inherently contrasting nature of civil and common law systems and the role, in particular, of equity in matters of assignment. This article presents the French regime on assigning receivables, contrasting it with English law on certain points.
03 June 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 2024The role of sustainability-linked derivatives in meeting global ESG goals
This article explores the role of ESG derivatives transactions in enabling companies, financial institutions and governments to meet their ambitious sustainability targets with a particular focus on bespoke, innovative sustainability-linked hedging solutions. This article highlights different ways in which sustainability-linked derivatives transactions can be, and have been, structured. In addition, this article explores the challenges currently faced by parties entering into such transactions stemming largely from a lack of regulation, resulting in limited transparency, standardisation and reporting.
29 May 2024The drafting jigsaw: LIBOR reform and forward-looking term rates
With the birth of nearly Risk Free Reference Rates (RFRs) bringing currency specific benchmarks for interest rates to replace LIBOR, new jargon and industry and regulator guidance, how can a borrower, or for that matter a lender, start to piece together the drafting it needs for bespoke finance documents?
29 May 2024Restitutionary 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 2024
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