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Principal and main purpose tests in tax treaties: a UK tribunal approach
The recent decision in Burlington Loan Management DAC v HMRC shows the difficulty in determining when parties have a main purpose of obtaining the benefit of a double tax treaty and indeed, which parties’ purposes are relevant. Despite the fact that this case was determined on the basis of UK tax case law, it is likely that an international fiscal meaning of “principal purpose” will develop over time. The UK tribunal decision shows the complexity of assessing whose purposes are relevant and what, on the basis of the evidence, those purposes actually were. This raises important considerations for taxpayers determining whether treaty benefits are available.
19 March 2024The doctrine of universal succession in English law and its impact on the transfer of finance arrangements
In this article the authors consider the relationship between English law and the doctrine of universal succession and the likelihood of controversial creditor issues where finance arrangements are transferred.
19 March 2024Retail Central Bank Digital Currencies: core assumptions and legal implications
This article explores two of the main assumptions underlying the public reflections of central banks on the topic of retail CBDCs, namely that these would qualify as money and would represent a claim on the balance sheet of their issuing central bank. The article also draws attention to the importance of understanding the impact on retail CBDCs of the legal analysis of different CBDC models.
19 March 2024There are known unknowns: how strict is civil liability for breaches of sanctions?
In this article Tom Leary explains how the introduction of sub-s 146(1A) of the Policing and Crime Act 2017 – the introduction of a strict liability regime for breaches of the UK sanctions regime – has created uncertainty that needs to be addressed quickly by Office of Financial Sanctions Implementation.
19 March 2024Swaps litigation: the continuing search for certainty
Banks who enter into swaps with public sector entities might reasonably have hoped that during the three decades since Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1 (in which the House of Lords ruled that the local authority’s interest-rate swaps were speculative and ultra vires) most of the associated legal problems would have been resolved. Two recent cases in the Commercial Court involving Italian authorities show that quite a lot remains to be argued about. These are Deutsche Bank AG London v Comune di Busto Arsizio [2021] EWHC 2706 (Comm) (Busto) and Banca Intesa Sanpaolo SPA & Anor v Comune Di Venezia [2022] EWHC 2586 (Comm) (Venezia). In this article Andrew Fulton KC highlights the continuing problems so far as the enforceability of a disputed swap is concerned.
19 March 2024The missing piece of the puzzle: the adoption of the UNIDROIT Model Law on Factoring
The International Institute for the Unification of Private Law (UNIDROIT) has just adopted the UNIDROIT Model Law on Factoring after three years of negotiations. The UNIDROIT Model Law is the newest addition to the international legislative framework for receivables finance, building upon earlier important instruments developed by both UNIDROIT and UNCITRAL. The UNIDROIT Model Law is well positioned to improve access to credit for micro, small, and medium-sized enterprises involved in global supply chains, in the face of increasingly difficult international economic headwinds.
19 March 2024Regulatory mandates and review in the 2022 Financial Services and Markets Bill: marking their own homework
There are a number of notable features of the Bill: this article will concentrate on Chapter 3, which concerns the accountability of regulators. The key provisions for the Prudential Regulatory Authority (PRA) are in ss 27-29. These amend the Financial Services and Markets Act 2000: (i) s 27 imposes a duty on both the PRA and the Financial Conduct Authority (FCA) to review rules; (ii) s 28 gives the Treasury certain powers in relation to rule making; and (iii) s 29 grants the Treasury powers to determine matters which the regulators must include in their considerations when making rules. Together, they represent a significant change to the prudential regulatory process in the UK. In this article, the author explains the background to these provisions, discusses the current text, considers its likely effect, and explores some potential improvements to it.
19 March 2024Re-fencing: the pitfalls, and opportunities, of M&A for ring-fenced banks
The UK’s bank ring-fencing regime puts barriers in the way of mergers and acquisitions by ring-fenced bodies. The government has recently evidenced its intention to relax these, both as part of its review of the regime generally and, during times of crisis, for specific acquisitions. This article outlines the concessions already provided for in the ring-fencing regime and highlights the remaining challenges, particularly for acquirers which are already subject to the ring-fencing regime. (This article does not seek to examine the policy arguments for and against the ring-fencing regime, which have been examined as part of the Ring-fencing and Proprietary Trading Panel Report (referred to as the Skeoch Report) and which are subject to further consideration under a government consultation which is open for response at the time of writing.)
19 March 2024Understanding export controls in UK sanctions legislation relating to Russia: issues for lenders
As exports from the UK to, or for use in, Russia since Spring 2022, have been the subject of rapidly changing restrictions, it has been tricky to keep track of how to navigate and interpret the legislation. In this article Jacqueline Cook, Of Counsel and Senior Knowledge Development Lawyer at Sullivan & Worcester UK LLP, looks at where the UK rules relating to Russia sit and explores how the legislation borrows concepts from commercial law to identify the assets.
19 March 2024“Now what news on the Rialto?”: the resurgence of capacity risk and the slow demise of contractual estoppel
In this article Professor Gerard McMeel KC considers discussions in recent Italian local authority swaps cases of the controversial doctrine of contractual estoppel and its potential impact on questions of capacity.
19 March 2024
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