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Digital assets use cases in financial securities: are they “native”?
In this article, Ashurst calls for legislative intervention to facilitate a scaled solution enabling the issuance of “native” Distributed Ledger Technology (DLT)-underpinned financial securities under English law. They draw on the position in French law as an example of how conventional legal frameworks can evolve to accommodate the nuances of digital assets and DLT.
19 March 2024No point preventing fraud? Philipp v Barclays Bank
On Wednesday 12 July 2023, the Supreme Court handed down its unanimous judgment in Fiona Philipp v Barclays Bank UK Plc [2023] UKSC 25. The Supreme Court’s decision to reverse the Court of Appeal’s judgment in Philipp v Barclays Bank [2022] EWCA Civ 318 will cause consternation and concern to consumers, will be welcomed by banks in the short term, but leaves fraudsters as the big winners. This article analyses the judgment and provides commentary on its implications.
19 March 2024Synthetic risk, real issues: secondary transfers of credit risk instruments
There are many ways of synthetically transferring risk, including credit default swaps, sub-participations, financial guarantees and insurance related products. Each such method (the relevant contract/instrument being an “Instrument”) gives rise to unique considerations but there are several points that are likely to be relevant whenever the party that has synthetically acquired the risk wishes to transfer its position to a third party. This article considers those relevant issues.
19 March 2024Subrogation and the case of the dissolved co-debtor
The effect of the dissolution of a company, followed by disclaimer by the Crown of leasehold property which passed as bona vacantia, can give rise to difficult issues where the property has been used as security for payment of sums for which another person is also liable, whether jointly and severally or as a surety. This article explores the consideration of the relevant principles in Leon v Kensington Mortgage Company [2023] EWHC 121 (Ch) and offers some reflections on the decision and its implications.
19 March 2024Cross-border enforcement of judgments in the post-Brexit age: a glimmer of light on the horizon?
This article considers whether Hague 2019 represents an attractive additional international convention for UK commercial litigants in cross-border disputes. It assesses the benefits and potential downsides – and the extent to which the convention will reverse the effects of Brexit in the civil justice sphere.
19 March 2024The new FCA Consumer Duty: the interrelationship with common law contractual obligations
The new Consumer Duty is not actionable under s 138D Financial Services and Markets Act 2000. While some existing legislation affecting contracts address the concepts of fairness and good faith similar to those in the Duty, such legislation is of limited application. Might it be possible to use contractual obligations in order to give a right of action? The case law suggests that only the clearest language of incorporation would incorporate the rules underlying the Duty. The Duty will however inform the standards expected under the implied term of care and skill in contracts for financial services.
19 March 2024The Economic Crime (Transparency and Enforcement) Act 2022 and English land registration
The Economic Crime (Transparency and Enforcement) Act 2022 (ECTEA) creates a number of issues for both overseas companies and those dealing with them in conveyances of land, including lenders. This article considers some complications in the regime and the effect of an error on the Land Register.
19 March 2024Appropriation of financial collateral under English law security financial collateral arrangements
For nearly 20 years English law has permitted mortgagees and chargees of financial collateral to exercise a self-help remedy of appropriating charged collateral as a means of enforcing their security. The requirements include agreeing on the valuation of the collateral and conducting the valuation in a commercially reasonable manner. Since the implementing legislation is far wider than required by European law, the effectiveness of the remedy can be undermined by disputes as to what is commercially reasonable in particular factual contexts.
19 March 2024TARGET 2 – TARGET 2 Securities Consolidation: major change to payment standards
Readers may have seen reference in the media to the European Central Bank (ECB’s) T2-T2S Consolidation project from which it may have appeared to be simply a merging of two existing systems on the same technical platform currently being used by TARGET 2 Securities (T2S). However, it is far more wide-ranging and complex than may first appear and this article aims to put it in context of other developments both within and outside the euro area. This article is based on the latest information available at the time of writing but some of the content may be slightly out of date by the time it is published. However, after completion of drafting a senior ECB official stated that the possibility of a further delay beyond 20 March is considered to be extremely low.
19 March 2024Remedies for victims of crypto fraud
In this article, Gretel Scott discusses the possible remedies and methods of enforcement for victims of crypto fraud.
19 March 2024
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