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Sinking The Siskina? The Privy Council on the jurisprudential nature of freezing orders
On 4 October 2021, the Privy Council delivered its 85-page judgment in Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24, which considered the jurisprudential nature of freezing orders. The majority decided that it was necessary and appropriate to depart from the House of Lords’ decision in Siskina v Distos Cia Naviera (The Siskina) [1979] AC 210. They held that freezing orders are explained by the need to facilitate the enforcement of judgments; and that they can be granted even where there is no pending claim before any court and where the applicant’s cause of action is incomplete.
25 March 2024Going green: global finance and the UK green taxonomy
In this article, Antony Hainsworth considers the interrelation between the UK’s proposed Green Taxonomy with the EU Taxonomy Regulation and other national green taxonomies.
25 March 2024Protection of clients’ securities in Luxembourg law
In this article, Paul Mousel considers the methods for protecting investors’ rights in securities under Luxembourg law.
25 March 2024Lloyd 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 2024
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