Feature

In this article we consider what duties are owed by a lender in the period after default by the borrower, but before any appointment or other enforcement steps are taken. We do so in the context of the question of what duties are owed in relation to restructuring services or actions of the lender having regard, in particular to the recent decision and observations of the Court of Appeal in Morley Estates v Royal Bank of Scotland [2021] EWCA Civ 338. We start by considering the question of why there is a need for protection and then seek to identify the case in favour of lenders’ duties being owed in the context of the decision made in Morley Estates v RBS at first instance and in the Court of Appeal.

Holders of Islamic financial instruments (often creditors) carry well-justified expectations that offerors and issuers (often borrowers) will observe the highest levels of integrity, transparency and proper (non-prevaricatory) conduct. The discussion surrounding the legal ramifications and impact on the Islamic financial services industry of Dana Gas PJSC v Dana Gas Sukuk Ltd and others [2017] EWHC 2928 (Comm) (17 November 2017) (Dana Gas PJSC) is therefore still incomplete. The High Court’s decision to rule the Purchase Undertaking valid and enforceable, regardless of whether the Mudarabah Agreement governing the Sukuk had been Shariah complaint or not, barely scratched the surface. Indeed, if anything, what has come out of the High court in Dana Gas PJSC is that not much has been said in a manner which would have addressed fundamental questions pertaining to Sukuk in a norm-setting way.

Decentralised machine learning (ML) (sometimes just referred to as Decentralised Artificial Intelligence) differs greatly from centralised ML (and other types of machine learning). This article seeks to explain those differences and explore the benefits, use cases and regulatory challenges faced by Decentralised Artificial Intelligence.

In this article the authors consider the ban on the giving of financial assistance for the acquisition of a company’s own shares in the context of the rise in private finance and specifically large private companies benefitting from the ban.

Faced with a challenging deal-making environment, volatile geopolitical backdrop and rising cost of capital, dealmakers are increasingly concerned about risks inherent to closing mechanics of complex acquisitions. In acquisition finance there is scrutiny to ensure committed funds arrive on time and utilisation mechanics adapt to facilitate funds flow and not vice versa. In this article Nick O’Grady, Philippe Bernier-Cormier and Gabby White from Baker McKenzie’s leveraged finance team look at developments in pre-funding structures and documentation in both the syndicated and private credit markets.

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.

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.

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.

In this article, Tina Kyriakides considers issues surrounding the crystallisation of floating charges including whether partial crystallisation, de-crystallisation and re-crystallisation is possible.

In this article Robert Amey considers a sub-participant’s right to vote on a scheme of arrangement or restructuring plan with a look at its treatment as a contingent creditor and whether the analysis which has been applied to beneficial bondholders can be carried across.