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Lloyd v Google LLC: the end of class action data privacy claims or just the beginning?
In this article the authors consider the impact of the UK Supreme Court decision in Lloyd v Google LLC on banks and other financial institutions which typically control vast quantities of (typically) relatively sensitive financial data.
25 March 2024Transfer restrictions in leveraged lending transactions: time for a re-assessment?
European leveraged lending practitioners will need no telling that documentary terms have been something of a one-way moveable feast in favour of borrowers and sponsors for a number of years. In particular, the extent of a lender’s right to transfer its participation in a loan facility to another institution has been gradually eroded, with the “new normal” including significant fetters on transfer rights. Meanwhile, capital reforms continue to increase the cost to bank lenders of holding loans on their balance sheets and have resulted in banks seeking to optimise their balance sheets through sales in the secondary loan market and through the use of synthetic risk transfers. Is it therefore, time for bank lenders to re-assess the acceptability of transfer restrictions and to push for fewer restrictions?1
25 March 2024Digital assets: the mystery of the “link”
In this article Hin Liu explores the meaning of a “linked” or “exogenous” cryptoasset and analyses whether holding a token (in this case non-fungible tokens (NFTs), security tokens and physical goods tokens) that is purportedly linked to an underlying asset or right carries substantive legal effect(s). Where the token is linked to legal rights outside the blockchain, he analyses whether the token itself constitutes property.
25 March 2024Quincecare and the liability of receiving banks: the Canadian story
This article analyses a line of Canadian case law that addresses the liability of a receiving bank in negligence to a third party payor. The decision of the Ontario Court of Justice, Royal Bank of Canada v Stangl [1992] 32 ACNS (3d) 17 (Stangl), suggested that the bank may in some circumstances owe a duty of care to the payor in crediting and paying out sums it receives. This article concludes that the ratio in Stangl is not supported by other Canadian or English case law, nor sound in principle, and therefore unlikely to be followed.
25 March 2024Takeover Code Changes 2021: can lenders be forced to fund an illegal deal?
The new edition (13th) of the Takeover Code took effect on 5 July 2021. One of the amendments to Rule 13 removed the special status given to UK and EU competition clearances, in part due to recognition of the diminished role of the European Commission in domestic takeovers. A question arising therefrom is how will this impact firm financing put in place by lenders to support the takeover offers? In this article, the author looks at the possible legal and practical answers to this question.
25 March 2024Seeing the world differently: litigation arising from ESG-related disclosure
A proliferation in ESG-related disclosure requirements for companies – and public awareness of the same – is driving an increase in litigation. This article examines the reporting and disclosure obligations for companies in the UK, and then considers how shareholders or activists might litigate when firms are found to have given incorrect or misleading information. After concluding that there are potential difficulties with proving reliance and causation, the article suggests practical steps companies might consider to try to limit the risk of liability.
25 March 2024Blu-sky thinking: the Interfoto principle and terms incorporated by reference
In this article the authors consider the implications of Blu-Sky Solutions v Be Caring [2021] EWHC 2619, including in the lending and derivatives contracts context, which suggest that a party provides to its counterparty a greater degree of notice in relation to onerous or unusual clauses which are intended to be incorporated by reference.
25 March 2024Could’ve, would’ve, should’ve: commercial fraud and the reasonably diligent claimant
Over the last two years there have been a number of reported cases dealing with the proper interpretation of s 32 of the Limitation Act 1980 which postpones the normal limitation period in cases of fraud, concealment, or mistake. From the Supreme Court’s judgment in the Test Claimants in the Franked II Group Litigation v Revenue and Customs Commissioners [2020] UKSC 47 to the Court of Appeal’s decision in OT Computers Ltd v Infineon Technologies AG [2021] EWCA Civ 501, there have been many recent judgments which clarify concepts like “reasonable diligence”. A further recent decision of the High Court in Arif v Sanger [2021] EWHC 3475 (QB) applies the case law in the context of commercial fraud and corporate directors. This article will bring all of these authorities together and review the major developments to the law of limitation.
25 March 2024Baking, staking, Tezos and trusts: crypto sale and repurchase transactions analysed by the High Court
In the recent case of Wang v Darby [2021] EWHC 3054 (Comm), the High Court considered the legal characterisation of an agreement pursuant to which the claimant and defendant exchanged fixed quantities of XTZ (Tez) and BTC (Bitcoin) with the understanding that there would be a mutual restoration following an agreed period of two years; and that the defendant would use the XTZ transferred to him by the claimant during those two years to participate in maintaining the Tezos blockchain, accounting to the claimant for any profits made thereby upon restoration. This article considers three issues arising from the determination of several applications made during the course of the proceedings: (i) whether cryptoassets are fungible; (ii) whether non-fungible cryptoassets may be the subject of a vendor-purchaser constructive trust; and (iii) how stake-bonding and comparable agreements over cryptoassets as investment assets should be characterised in law.
25 March 2024The new FCA consumer duty: the interrelationship with regulatory and common law obligations
This article considers the FCA’s proposed consumer duty in financial services, expected to be introduced by 31 July 2022 (the new consumer duty). It concludes that: the extent to which the New Consumer Duty imposes a higher standard than that already contained in FCA Handbook Principles 6 and 7 is especially dependent on interpretation of the Price and Value Outcome; the interrelationship between the New Consumer Duty and existing regulatory and common law obligations poses uncertainty to regulated firms; and there are likely to be differences in the enforcement approach of the FCA, civil courts and the FOS. This article does not cover the interrelationship between the New Consumer Duty and common law contractual obligations. Neither does it cover the overlap between the New Consumer Duty and the Senior Managers and Certification Regime, which aligns senior accountability with certain FCA Handbook rules. Both topics will be analysed in a further article.
25 March 2024
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