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Could’ve, would’ve, should’ve: commercial fraud and the reasonably diligent claimant
Over the last two years there have been a number of reported cases dealing with the proper interpretation of s 32 of the Limitation Act 1980 which postpones the normal limitation period in cases of fraud, concealment, or mistake. From the Supreme Court’s judgment in the Test Claimants in the Franked II Group Litigation v Revenue and Customs Commissioners [2020] UKSC 47 to the Court of Appeal’s decision in OT Computers Ltd v Infineon Technologies AG [2021] EWCA Civ 501, there have been many recent judgments which clarify concepts like “reasonable diligence”. A further recent decision of the High Court in Arif v Sanger [2021] EWHC 3475 (QB) applies the case law in the context of commercial fraud and corporate directors. This article will bring all of these authorities together and review the major developments to the law of limitation.
25 March 2024Baking, staking, Tezos and trusts: crypto sale and repurchase transactions analysed by the High Court
In the recent case of Wang v Darby [2021] EWHC 3054 (Comm), the High Court considered the legal characterisation of an agreement pursuant to which the claimant and defendant exchanged fixed quantities of XTZ (Tez) and BTC (Bitcoin) with the understanding that there would be a mutual restoration following an agreed period of two years; and that the defendant would use the XTZ transferred to him by the claimant during those two years to participate in maintaining the Tezos blockchain, accounting to the claimant for any profits made thereby upon restoration. This article considers three issues arising from the determination of several applications made during the course of the proceedings: (i) whether cryptoassets are fungible; (ii) whether non-fungible cryptoassets may be the subject of a vendor-purchaser constructive trust; and (iii) how stake-bonding and comparable agreements over cryptoassets as investment assets should be characterised in law.
25 March 2024The 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 2024Something in the ether? The allure of digital bonds
Digital (or crypto) assets are currently attracting considerable scrutiny from global regulators and generating voluminous copy for the world’s media. However, the digital assets spectrum is incredibly wide. Although using the same type of underlying technology as cryptocurrencies, digital bonds are strikingly different: they are (typically) regulated instruments, supported by new legislation in key jurisdictions and by some high-quality issuers. In this article, the authors consider both the allure and the challenges of digital bonds.
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 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 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 2024
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