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Limitation periods and cryptocurrency fraud
This article gives an overview of cryptocurrency fraud in the UK, highlights the risk that recovery actions may be time barred, considers the s 32 test in the light of recent authority, and then offers practical tips as to how cryptocurrency investors might increase their prospects of being able to rely on that provision.
25 March 2024A contradiction of terms: is stock-lending compliant with the ethos of an ESG fund?
The market share of ESG funds is rising rapidly and by some estimates is set to become a third of the total market as measured by assets under management. Many questions around ESG funds have yet to be resolved. There is active debate about the issues between, amongst others, asset managers, investors, regulators, lawmakers, scientists and pressure groups. However, some questions can be answered immediately. An ESG fund which shorts a stock which it would deem to be environmentally sound, or, more likely, lends it to another fund to short is acting against the principles of the ESG ethos which attracted its investors in the first place. This is because there is a tension between portfolio returns and environmental concerns. There is a risk of accusation of mis-selling resulting in litigation and censure by the regulator unless the fund’s modus operandi and their rationale are explicit.
25 March 2024Fund finance: the regulatory requirements applicable to securitisations in the EU and UK
In the March 2022 edition of Butterworths Journal of International Banking and Financial Law ((2022) 3 JIBFL 198), we briefly explored the analysis undertaken to determine whether a transaction in the European fund finance market constitutes a “securitisation” under the EU1 and UK2 regulatory frameworks. If a fund financing does constitute a securitisation, further work is required to establish how the applicable regulatory requirements will be met. In this follow-on article, we survey the application of the key regulatory requirements imposed on participants in securitisations in the EU and UK in the context of fund financing transactions, namely: risk retention, transparency (and reporting), due diligence and credit granting requirements. We also consider the direct applicability of the rules to fund parties and the related provisions participants in these transactions should expect in the financing documents.
25 March 2024Bankers’ liability for Authorised Push Payment fraud: the evolution of the Quincecare duty
In this article, David McIlroy and Ruhi Sethi-Smith of Forum Chambers examine the basis of the Court of Appeal decision in Philipp v Barclays Bank Plc [2022] EWCA Civ 318 and highlight the salient points of the appeal judgment before providing their conclusions on what this means for the victims of sophisticated Authorised Push Payment (APP) fraud scams in the future.
25 March 2024Russia and Ukraine: the end of Article VIII 2b?
Bad wars expose the weaknesses in the international framework of law. The attack by Russia on Ukraine is no exception to this proposition in an area of law often considered to be obscure but of very significant consequences. This is Article VIII 2b of the IMF agreement which allows a member’s exchange controls unilaterally to override its contracts in certain cases. This Article is considered a blot on the otherwise pure parchment of the IMF Agreement and should be removed.
25 March 2024Non-fungible tokens: select legal issues
Non-fungible tokens (NFTs) have captured investor attention as an emerging asset class, with the value of the relevant market estimated at US$10.7bn (third quarter of 2021). Although there is nothing new about their underlying technology (blockchain), what is novel is its use by artists, athletes, and public figures to commercialise their creative work, and to monetise their brand name. We explore three of the plethora of legal issues that NFTs throw up: (i) the nature of NFT holders’ rights; (ii) whether NFTs can qualify as “securities”; and (iii) the extent to which they are covered by crypto-asset-specific regulation in select jurisdictions.
25 March 2024Developing policies for green and sustainable finance for the aviation industry
The application of green and sustainable lending principles to the aviation industry has long been a source of controversy and confusion. At the heart of the matter is whether lending to an airline can ever be considered truly “green” and if not, then whether aviation could be considered a transitioning industry with lending practices supporting the move towards lower emissions. The lack of definitive criteria as to what constitutes green or sustainable financing in the context of aviation has led to the inability of airlines and lessors to access this kind of financing. This article considers whether the inclusion of aviation in the EU’s Taxonomy Regulation1 will facilitate the availability of green and sustainable finance products for the finance and leasing of aircraft.
25 March 2024The impact of the Corporate Insolvency and Governance Act 2020 and the Finance Act 2020 on drafting Loan Documentation and Practice: update
In this article, Georgia Quenby considers the documentary and structural changes that are becoming prevalent in secured lending and special situations documentation to mitigate the impacts of both the Corporate Insolvency and Governance Act 2020 and the Crown Preference.
25 March 2024Across the pond and back again: what direct lenders should know before deploying historic dry powder
In this article, the authors compare the approaches US and European direct lenders take to certain deal terms and highlight market-specific trends.
25 March 2024The impact of the new Economic Crime Act on loan documentation
The Economic Crime (Transparency and Enforcement) Act 2022 (the Act) implements the highly anticipated register of beneficial ownership of UK property, forcing overseas entities to disclose details of beneficial ownership in order to transact with UK property. It is designed to improve the transparency of foreign ownership of UK property and clamp down on economic crime. However, the new regime is not faultless, and the new register is at risk of exploitation in certain areas. In this article, we consider key aspects of the Act, the new register, and issues for lenders ahead of the implementation of the new regime.
25 March 2024
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