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Pension scheme’s liability driven investment strategies: what went wrong? A lawyer’s guide
This article explains liability driven investments (LDIs), identifies features of the statutory and regulatory framework applicable to investment by Pension Schemes, and examines what went wrong in the recent market turmoil.
19 March 2024Security interests in insolvency: UNCITRAL instruments and Greek law compared
This article compares the treatment of security interests in insolvency under the UNCITRAL Legislative Guide on Insolvency Law (Insolvency Guide or IG) and the UNCITRAL Legislative Guide on Secured Transactions (Secured Transactions Guide or STG) with the treatment of security interests in insolvency under Greek insolvency law. It briefly discusses the key objectives of these regimes, the insolvency estate and the impact of stays on individual actions, the effectiveness and priority of security interests, the use and sale of encumbered assets, the treatment of contracts, and the treatment of security interests in reorganisation and post-commencement finance. As an introductory remark, Greek insolvency law was recently reformed, although it retained much of the previous law. Its basis nowadays is Law 4738/2020 (Insolvency Code or IC), which regulates three (insolvency and pre-insolvency) procedures: These are: (i) the liquidation of the debtor’s estate and distribution of the proceeds to creditors; (ii) restructuring, which may bind all creditors by means of judicial confirmation of the restructuring agreement; and (iii) out-of-court workout, which applies to public law and financial creditors only, and is not court-supervised, given the apparent lack of need for protection of these powerful creditors.1
19 March 2024Decrypting conflict of laws
In this article Sophia Hurst considers the various options open to the Law Commission on the issue of conflict of laws for cryptocurrency disputes in advance of its consultation paper to be published in the second half of 2023.
19 March 2024The suspense ends: court says certain ISDA bankruptcy defaults can be cured
In 2012 the Court of Appeal ruled that the counterparties of Lehman Brothers International (Europe) (LBIE) who had transacted under ISDA Master Agreements could suspend payment to the administrators indefinitely for so long as the Event of Default occasioned by the appointment of the administrators was continuing. As it has become ever clearer that LBIE will one day exit administration as a going concern (on a solvent basis), the administrators have maintained that the Event of Default will cease to be continuing and the holdouts will have to pay up. In one of the first cases to be heard virtually at the start of the COVID-19 pandemic, the administrators were finally able to ask the court whether implementation of their proposals for ending the administration would mean that the Event of Default was no longer continuing. This autumn the court ruled for the administrators.1 In addition to discussing the meaning of “continuing”, the judgment pays particular attention to what constitutes a Bankruptcy Event of Default under the 1992 and 2002 ISDA Master Agreements. Within the analysis, key variables were the importance to be given to factors such as the impact of an event on the counterparty’s credit risk and the permanent effect of the event on creditors’ rights. The granular analysis will be relevant to users of the ISDA Master Agreements but also to users of other contracts with similar wording such as credit derivatives.
19 March 2024Unsecured loans and ascertaining cash flow insolvency
This article examines whether the funds which a debtor company from a loan provided on an unsecured basis can be taken into account in determining whether it is solvent on a cash flow basis.
19 March 2024The impact of Pt 26A Restructuring Plans on intercreditor dynamics
The inclusion of a “cross-class cram-down” (CCCD) feature in Pt 26A Restructuring Plans was intended to prevent creditors with little or no economic interest in a company from blocking an otherwise well supported restructuring proposal. While this objective has been largely achieved, the wider impact of CCCD is now becoming better understood, with senior secured creditors gaining more influence and operational creditors being increasingly dragged into the restructuring process. This article examines why this is happening and then explores the potential long-term consequences of such changes which could eventually result in a significant reduction in the use of Pre-Pack sales by administrators.
19 March 2024Security over e-money and deposits with deposit aggregators: a new approach is required
Over the last decade, fintechs (including EMIs (see definition in the key points above)) have transformed the payments landscape and have driven and facilitated the rapid shift by individuals and businesses away from cash to e-money. This article sets out the practical and legal considerations under English law when taking security over e-money and deposits with Deposit Aggregators (see definition in the key points).
19 March 2024Illusory security of banks in trade finance
In this article, barrister Michael Collett KC considers the types of security commonly taken by banks providing trade finance and their potential weaknesses, in light of recent case-law arising from the collapse of oil traders such as Hin Leong, Zenrock and Gulf Petrochem.
19 March 2024Referring to legislation in finance documents: more than you bargained for?
This article explores the risks associated with the common practice in finance documents of including references to legislation.
19 March 2024LMA Defaulting Lender provisions in today’s growing non-bank loan market
In this article the authors consider the relevance of the Loan Market Association’s (LMA) Defaulting Lender concept in non-traditional facilities such as those arranged by private credit funds and non-bank Lenders.
19 March 2024
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