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Rise of the jumbo unitranche: a continuing trend in 2022?
In this article the authors unpack recent unitranche trends, identify reasons for the rising popularity of jumbo unitranche facilities and discuss what it may portend for the syndicated loan market.
25 March 2024Sinking 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 2024The National Security and Investment Act 2021 revisited: when are secured creditors obliged to make mandatory notifications?
The National Security and Investment Act 2021 (NSIA or the Act) is a complex and wide-ranging piece of legislation with the potential to impact many acquisitions and other corporate transactions. It empowers the Secretary of State for Business, Energy and Industrial Strategy (the Secretary of State) to review and where appropriate, intervene in investments in qualifying entities and assets that have given, or may give rise to a risk to national security. Since the NSIA came into force at the beginning of 2022, its practical implications have inevitably come to the fore. This includes how the Act’s mandatory pre-notification requirements apply to creditors taking security over shares in entities operating in qualifying sectors of the economy. While the government’s intent seems clear in terms of when the NSIA will impact secured creditors, the text of the Act itself and related guidance have resulted in some questions among practitioners.
25 March 2024Reforms to Unexplained Wealth Orders: the sword and the shield
Following the Russian invasion of Ukraine on 24 February 2022, the Economic Crime (Transparency and Enforcement) Act 2022 (ECA) made swift passage onto the statute books. Part 2 reforms the regime governing Unexplained Wealth Orders (UWOs). The Act was heralded by the Home Secretary as “remov[ing] key barriers to the use of unexplained wealth orders”, “chang[ing] the entire way in which UWOs are operationalised”, and giving law enforcement agencies (LEAs), particularly the National Crime Agency (NCA), the “legal basis, legal powers and protections they need” (Hansard, 7.3.22). This article explores the reforms to UWOs, analyses whether they address shortcomings in the regime as initially implemented, and discusses whether the government’s intentions are likely to be fulfilled.
25 March 2024Is your MAE/MAC clause ready for the next pandemic?
In this article, Sa’ad Hossain QC considers lessons for the draftsmen of MAE/MAC clauses from the recent Travelport v WEX litigation.
25 March 2024Talking about a revolution: making ESG securitisations mainstream
This article considers the constraints hampering environmental, social and governance (ESG) securitisations and the ESG securitisation market generally including the current regulatory framework, the various forms an ESG securitisation can take and possibly policy solutions to stumbling blocks in the market.
25 March 2024Unanswered questions regarding the Restructuring Plan
The Restructuring Plan was introduced to the Companies Act in June 2020. Since then, there have been numerous cases – some of which have involved challenges by interested parties – which have elucidated the correct approach to convening meetings, and to providing sanction for Restructuring Plans. However, important unanswered questions remain, including as to the exercise of the cross-class cram down power where one or more of the dissenting classes is “in the money”.
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 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 2024
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