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Judicial review of regulatory bodies in the financial services industry
However, the sheer growth in the volume of regulation in the financial services sector, combined with an expansion in regulatory remit (which is often incremental) means that judicial review has become even more important as a means of holding regulators to account. This article discusses some recent decisions in this area, as well considering what impact, if any, the proposed judicial review reforms are likely to have on challenges within the financial services industry.
29 May 2024Regulating the distributed ledger: the EU’s attempt
In this article, barrister Richard Nowinski considers some of the shortcomings of the EU’s attempt to regulate distributed ledgers.
29 May 2024Re-scheduling debt and the provision of credit
In this article, Neil Levy considers whether an agreement which re-schedules an existing payment obligation by doing no more than allowing time to pay, should be treated as providing credit.
29 May 2024Calling it in: the implications of the new National Security and Investment Act 2021 on financing transactions
On 29 April 2021 the National Security and Investment Act 2021 (NSIA) received Royal Assent. When it comes into force fully on 4 January 2022, it will permit the government wide ranging powers to impose remedies on, or even block, certain transactions on the basis of national security. Whilst most relevant in an M&A context, the legislation does introduce a number of implications for financing transactions which are discussed below.
29 May 2024Where’s my share certificate? Taking security in an electronic world
There is no escaping electronic documents on today’s banking and finance transactions. Just as the COVID pandemic accelerated the use of electronic signatures, the number of original documents that exist solely in electronic form has increased too. But one thing that has not changed are the delivery requirements under security documents. Stephan Smoktunowicz examines what this means for share security and whether paper deliverables are now a thing of the past.
29 May 2024SPACs in the City: the emerging litigation and regulatory risks in England and Wales
SPACs scorched the US stock markets last year, with the UK left out in the cold. While the recent crackdown by the Securities and Exchange Commission (SEC) is cooling investor interest in the US, the UK regulators are hoping that changes to the regulatory framework will bring some SPAC sunshine to this side of the Atlantic. But what are the potential regulatory and litigation risks for SPACs in the City?
29 May 2024Custodianship: why do EU civil code states not trust the trust?
This article deals with the custodianship of securities in civil code states in the EU – all of them except Ireland and Cyprus. Common law jurisdictions all recognise universal trusts over all assets present and future but most civil code states do not. Instead they either have limited special trusts and, if not, various other devices. The question is whether these are adequate to safeguard client assets against the creditors of the custodian. This article will be followed later by one or more articles by lawyers in selected EU jurisdictions specifically discussing their solutions to the problem.
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 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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