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The 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 2024Transfers of risk or risky transfers? Transferring hedging positions in respect of non-performing loans
There are a number of key decisions to be made when a hedge counterparty wishes to transfer a hedging position in respect of a non-performing loan. These decisions are driven by legal and commercial considerations in the context of the transaction documents. A number of these considerations are set out below, but each transaction is different and additional considerations may arise. Unless otherwise indicated, this article will assume that if the transaction terminated, the borrower would be obligated to make a payment to the hedge counterparty and that the hedging is entered into under the terms of an ISDA master agreement (hereafter, an ISDA). For ease of reference, the existing hedge counterparty is referred to as the hedge counterparty and the proposed transferee as the transferee, whether before or after any transfer.
25 March 2024Waiving goodbye to termination rights in default scenario negotiations
A key weapon in the lender’s arsenal is the default provisions contained in a loan agreement and the actions that the lender may take upon the occurrence of an event of default. In Lombard North Central plc v European Skyjets Limited [2022] EWHC 728 (QB), Mr Justice Foxton considered whether certain events of default had occurred and whether Lombard had validly terminated the loan agreement so as to enable it to enforce its security, namely Skyjets’ aircraft. The judge’s legal analysis provides a useful recap of the legal principles. This article focusses on the doctrine of waiver by election and some practical considerations for lenders in a default scenario.
20 March 2024The Excluded Asset Gap: why floating charges capture realisations of unsecured assets
Will the proceeds of the sale of an asset, excluded from the scope of a floating charge, be captured by that charge when sold by an insolvency practitioner? In this article the authors consider the default position under general law in relation to this issue and what parties should do to ensure their intentions are appropriately reflected when formulating security packages.
20 March 2024Cryptoassets, consumers and foreign arbitration
This article considers Soleymani v Nifty Gateway LLC [2022] EWHC 773 (Comm) (Soleymani) in which the High Court held it had no jurisdiction and granted a stay under s 9 of the Arbitration Act 1996 (AA 1996) of proceedings brought by an English consumer primarily to enforce his rights under the Consumer Rights Act 2015 (CRA 2015).
20 March 2024Legal conundrums: taking security from English limited partnerships
Unlike an English private limited company incorporated under the Companies Act 2006, an English limited partnership (LP) is not a legal entity. In practice, this can create confusion and risk when LPs create and register security. Stephan Smoktunowicz examines some of the key considerations when taking security from LPs including the grey areas which surround registration and how to approach them more safely.
20 March 2024Bragging rights: termination clauses and implied duties of good faith
In this article, the authors consider the circumstances in which termination clauses in a commercial contract might be subject to a so-called Braganza duty of good faith and the practical issues that might follow from this.
20 March 2024Financial sanctions and the case for digital central bank money
Central banks around the world have been contemplating the creation of central bank digital currencies (CBDCs)1 for the best part of the last five years, with some of them already experimenting, at the time of writing, with pilot schemes. This article explores to what extent the armed conflict that recently erupted in Europe’s periphery strengthens, as some have argued, the case for their issuance so as to better enforce financial sanctions imposed on deviant state actors or, instead, creates risks of currency retaliation as well as jeopardising the credibility of public money and its issuers.
20 March 2024Tiptoe through the tulips: fiduciary and common law duties of care in cryptocurrency
Tulip Trading Limited v Bitcoin Association for BSV and ors [2022] EWHC 667 (Ch) involved an unusual claim by an alleged owner of Bitcoin seeking to force core developers of the Bitcoin code to take reasonable steps to “patch” that code to circumvent the fact that the claimant no longer controlled the relevant private key. This was analysed by the court on traditional principles of fiduciary duties and common law duties of care, but more broadly the claims can be seen to challenge the decentralized nature of the Bitcoin blockchain and the importance of private keys to the certainty and security of that blockchain.
20 March 2024The endgame: issues in enforcement against cryptoassets
This article considers the possibility of recovering cryptoassets without the authorisation of the private key.
20 March 2024
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