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Does the liquidator have a duty to deal with trust assets?
The extent, if any, to which the liquidator of a corporate trustee is under duties in relation to trust property has received very limited attention from the English courts. The point is important since corporate trustees collectively hold property worth trillions. If such trustees cannot be placed in special administration proceedings or if the administrator of a corporate trustee is unable fully to deal with trust property prior to the end of the special administration, the absence of any duty on the liquidator to deal with such property in some appropriate way would open up a serious lacuna in the efficacy of the liquidation regime. This article sets out tentative and exploratory considerations that may assist a court asked to address this question.
25 March 2024Transfers of equitable interests in the digital asset world
In this article Hin Liu explains why it is uncertain whether commercial parties can transfer their equitable interests under certain digital asset arrangements. He suggests the need for statutory reform to maintain the necessary confidence that transactions in the digital asset world can take effect as intended.
25 March 2024Is your MAE/MAC clause ready for the next pandemic?
In this article, Sa’ad Hossain QC considers lessons for the draftsmen of MAE/MAC clauses from the recent Travelport v WEX litigation.
25 March 2024Unanswered questions regarding the Restructuring Plan
The Restructuring Plan was introduced to the Companies Act in June 2020. Since then, there have been numerous cases – some of which have involved challenges by interested parties – which have elucidated the correct approach to convening meetings, and to providing sanction for Restructuring Plans. However, important unanswered questions remain, including as to the exercise of the cross-class cram down power where one or more of the dissenting classes is “in the money”.
25 March 2024Regulating cryptocurrency by policing advertisements: the approach in the UK, Singapore, India and Spain
In this article the author considers the regulatory approach of four jurisdictions to the policing of cryptocurrency advertisements.
25 March 2024Intralot’s drop-down restructuring games: priming pari passu noteholders, circumventing non-consenters and artificially reducing asset values
Intralot is the first European group to restructure its debt using the “J. Crew”-inspired drop-down procedure, transferring its unencumbered US business away from unsecured noteholders due to be repaid in 2024, to be used to support secured debt to refinance unsecured notes maturing earlier in 2021. The trustee for the notes due in 2024 is suing and there is a separate claim for fraudulent transfer. In this article, the authors explore: how unsecured pari passu and pro rata noteholders came to prime others by becoming senior secured noteholders under the drop-down procedure; how the drop down was achieved by a US subsidiary issuing unsecured notes due 2025, swapping them for the unsecured notes due 2021 issued by a holding company, being designated an “Unrestricted Subsidiary”, with its shares and assets then being pledged as security for the notes due 2025; how Intralot exploited imprecise but standard drafting of the covenants to ensure the value of the US business was low enough to fit within investment basket capacity required to be used for the drop-down; why only 75% of the primed noteholders may have decided to stay being supported by the non-US business rather than exchange for equity in the US business; how the different bargaining power among creditor groups impacted the restructuring and resulted in unequal outcomes for creditors in the same class; how a minority of 2021 noteholders withheld consent to force repayment of 59% of their notes at par prior to the refinancing-by-drop-down; and “J. Crew” blockers as anti-drop-down provisions and their frequency in 2021.
25 March 2024Secured finance law reform: the Joint Coordination Network
In December 2021, the United Nations Commission on International Trade Law (UNCITRAL), the international Institute on the Unification of Private Law (Unidroit), the International Finance Corporation (IFC), the Organisation of American States (OAS) and a few other governmental and non-governmental organisations launched a Joint Network for Coordinating and Supporting Secured Transactions Reforms (Network). The main objective of the Network is to coordinate the activities of participating organisations in providing technical assistance and capacity building to States and organisations in secured transactions and related reforms. The Network also seeks to facilitate the modernisation and enhancement of secured transactions frameworks, particularly through the adoption and implementation of international standards in this area.1 The Network is the result of four coordination conferences jointly organised and held by the members of the Network in recent years.
25 March 2024Non-fungible tokens: select legal issues
Non-fungible tokens (NFTs) have captured investor attention as an emerging asset class, with the value of the relevant market estimated at US$10.7bn (third quarter of 2021). Although there is nothing new about their underlying technology (blockchain), what is novel is its use by artists, athletes, and public figures to commercialise their creative work, and to monetise their brand name. We explore three of the plethora of legal issues that NFTs throw up: (i) the nature of NFT holders’ rights; (ii) whether NFTs can qualify as “securities”; and (iii) the extent to which they are covered by crypto-asset-specific regulation in select jurisdictions.
25 March 2024Developing policies for green and sustainable finance for the aviation industry
The application of green and sustainable lending principles to the aviation industry has long been a source of controversy and confusion. At the heart of the matter is whether lending to an airline can ever be considered truly “green” and if not, then whether aviation could be considered a transitioning industry with lending practices supporting the move towards lower emissions. The lack of definitive criteria as to what constitutes green or sustainable financing in the context of aviation has led to the inability of airlines and lessors to access this kind of financing. This article considers whether the inclusion of aviation in the EU’s Taxonomy Regulation1 will facilitate the availability of green and sustainable finance products for the finance and leasing of aircraft.
25 March 2024The impact of the Corporate Insolvency and Governance Act 2020 and the Finance Act 2020 on drafting Loan Documentation and Practice: update
In this article, Georgia Quenby considers the documentary and structural changes that are becoming prevalent in secured lending and special situations documentation to mitigate the impacts of both the Corporate Insolvency and Governance Act 2020 and the Crown Preference.
25 March 2024
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