Feature

The final word on lawful act duress? Times Travel v Pakistan International Airlines and its impact on the banking sector

This article, written by the counsel team who succeeded before the Supreme Court, discusses the recent key decision of the Supreme Court in Times Travel (UK) Ltd v Pakistan International Airlines Corporation concerning the law of economic duress and the impact on the banking sector. The specific issue raised was whether lawful act duress exists, and if so, in what circumstances. The Supreme Court held that the doctrine does exist, but only in very narrow circumstances.

Is honesty the only excuse? Restraint of non-fraudulent demands under performance bonds

In this article Sanjay Patel considers the legal differences between restraining a bank from paying, and restraining a beneficiary from making a demand, under a performance bond.

Why intermediated securities should be brought within scope of the expanded Dormant Assets legislation

In this article the authors set out an overview of the proposed expansion of the Dormant Bank and Building Society Accounts Act 2008 and a critical examination of the possible reasons for leaving intermediated securities out. They argue that bringing intermediated securities within scope of the legislation would reflect the operational reality of how UK public securities are held, maximise the legislation’s impact, and could generally be done without too much conceptual difficulty.

Passing regulatory headwinds for a flourishing European CLO market

2020 was a relatively slow year for what had been a booming CLO market, with the initial stages of the pandemic resulting in a short-term dip in perceived corporate debt value and a reluctance of investors to deploy capital ahead of the implementation of state-led recovery packages. 2021 has been starkly different, with issuance volumes in the European CLO market set to potentially match or exceed those achieved in 2018 and 2019.¹ Whilst the market flourishes, behind the scenes market participants have had to grapple with an ever-evolving regulatory environment. In particular, sell-side market participants must determine how to adapt and evolve to achieve the best overall results for their investors across the capital structure, many of whom are placing increased emphasis on more sustainable investment strategies. A few of the key current topics are considered herein.

Central Bank Digital Currencies

Digitalisation has reached the shores of central banking. Central Bank Digital Currencies (CBDCs) are the public response to privately issued virtual currencies, of which Bitcoin was the pioneer. In this uncharted territory, central banks face a multitude of design choices – “account-based” or “token-based”, offered to the general public or only to a selected group of users – which raise unprecedented legal questions. Entering the digital arena bears great potential for monetary policy as well as risks for the financial system. Finding a balance for each jurisdiction and monetary system will be a key task for central banks in the 21st century.

The rule in Clayton’s Case: its application in non-banking relationships

The rule in Clayton’s Case  originated in banking relationships and its application is most often seen in that context. Recently there has been a trend to disapply the rule, in cases where multiple claimants seek to trace into a single fund. This article looks at a recent decision of the Court of Appeal which turned on the application of the rule in a non-banking context, and in particular on the timing of the appropriation of payments which is deemed to take place pursuant to the rule.

Non-notification receivables financing: can the assignor sue without joining the assignee?

Generalised statements in recent cases appear to say that an assignor cannot sue the debtor without joining the assignee to the action. This article argues that this should not be the case where the debtor has not been notified of the assignment, and that the statements in the cases are weak, if any, authority in relation to non-notification receivables financing. 

This article is based on the full chapter published in Peel and Probert: Shaping the Law of Obligations: Essays in Honour of Professor Ewan McKendrick KC,  OUP 2023, ISBN: 9780198889762. 

The dynamics of insurers as lenders in the NAV market

In this article, Angela Batterson of Cadwalader in New York, considers the factors attracting insurance companies to the NAV financing space and some typical deal terms.

Channel Islands and statutory fences: obtaining evidence for use overseas

The recent decision, Green v CT Group Holdings Limited , adds to existing case law on the point that Norwich Pharmacal  applications cannot be used to obtain evidence for use in proceedings overseas. The court again found that the route to obtaining that evidence is “fenced off” by statute, and a letter of request must be issued to the English court from overseas instead. That process is however unsuitable for an urgent asset-trace in response to a fraud. Although controversial, there is a similar but separate route to obtaining information about assets and their whereabouts for use overseas under another statute.

Delivering valid notices of assignment: s 136 in 2024

It is well established that emails satisfy a requirement for “writing” and are documents. It is also well known that many documents in writing need to be authenticated by the writer’s signature. There are now multiple mechanisms that allow for electronic signatures as a means of authentication of an electronic document. The use of email and other electronic communications to give notice to a debtor of the fact of a statutory assignment under s 136 of the Law of Property Act 1925 is also widespread. The question as to whether electronic notice of an assignment under s 136 is valid has still not been to the Court of Appeal. Case law is confused on the point. This article suggests once again the better view is that it should be valid and the contrary case law should not be followed.