Feature
734
Go to page
of
74
Blu-sky thinking: the Interfoto principle and terms incorporated by reference
In this article the authors consider the implications of Blu-Sky Solutions v Be Caring [2021] EWHC 2619, including in the lending and derivatives contracts context, which suggest that a party provides to its counterparty a greater degree of notice in relation to onerous or unusual clauses which are intended to be incorporated by reference.
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 2024Could’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 2024Musk v Twitter: it’s not just lawyers who have an opinion on the likelihood of success of the litigation: the market does too!
Despite entering into a binding agreement with Twitter, Elon Musk has backed out of completing the purchase of the company at $54.20 per share. Twitter has commenced action in the court of Delaware. If it wins, its share price should increase to around $54.20 from the current $37.74. On the other hand, if it loses the share price will drop to $37.40, the level it was prior to the announcement of the bid. From this it is possible to calculate the probability of success of Twitter’s action implied by the current market share price (using some assumptions). This market implied probability can be compared to that obtained using legal analysis, which can then inform investors whether to buy or sell Twitter shares. It also gives litigators a rare opportunity to back their analysis!
20 March 2024Orthodoxy prevails? How receiving banks avoid liability for their customers’ frauds
Two recent cases have considered the issue of when a bank can be held liable by a victim of fraud on the basis that the fraudster directed the victim to make payment to an account held with the defendant bank. In both these recent cases, the receiving bank has been comprehensively excused of any liability. However, whether the receiving bank can ever be held liable in such circumstances remains an open question.
20 March 2024Take-off for digital bonds? The EU DLT pilot regime
The EU Regulation on a pilot regime for market infrastructures based on distributed ledger technology entered into force in June 2022. This article examines its key features and likely impact on the market for digital bonds.
20 March 2024Loan defaults: untimely remedies and potential hangovers in credit agreements
This article examines some of the current issues arising in leverage finance agreements on defaults and the expansion of express remedy terms that can impact on debt transfers.
20 March 2024
Go to page
of
74
