Feature

Fiduciary duties and regulatory rules: are the courts and the regulator on a collision course?

Deborah Sabalot Deane asks whether the motor finance vehicle cases have identified a gap between the law and the regulatory rules creating legal uncertainty and doubtful outcomes for both consumers and the industry.

Drafting on the edge: ambiguity in hybrid jurisdiction clauses

In this article the authors consider the implications of asymmetric jurisdiction clauses drafted such that the non-exclusive limb of the provision is carved out of a blanket provision stating that the courts of England are to have exclusive jurisdiction. The article considers how, with this drafting, English courts are unlikely to refuse jurisdiction and that explicit drafting is required if a financial party wishes to compel an English court to discontinue proceedings in favour of a court of its choosing.

Resource-backed loans: a never-ending story?

In this article, Brad Pomfret KC, Asa Tolson and Rebecca Jones consider whether resource-backed loans secured by an ad  infinitum  pledge of the resources concerned risk creating irredeemable security as a matter of English law.

Some updates on TMT finance

This article updates the series of articles published between March 2015 and November 2018 on the subject of financing businesses in the TMT sectors (Series 1). Since then, the type and value of intangible assets have increased, many banks have launched growth debt products, private credit firms have expanded their business both generally and in providing credit to technology  businesses, and some legal developments relevant to intangible assets and credit finance have taken place.
Certainly, the value of the market has grown. According to the latest ONS figures (published in November 2024), in 2022 UK businesses invested £200bn (a record) into intangible assets. This statistic also illustrates one of the original points of Series 1: of the £200bn, only around half was invested in assets protected by intellectual property rights (IPR); the rest paid for assets such as know-how, trade secrets, business processes, and all the other intangible assets that are not covered by IPR.
We can view the lay of the land in 2025 by considering what has not changed, what has changed, and what is changing. 

Central clearing in the US Treasury Securities markets: understanding the global legal impact

In December 2023, the United States Securities and Exchanges Commission published their Final Rule prescribing mandatory clearing for “eligible secondary market transactions” involving US Treasury Securities. In-scope transactions must be cleared and settled through a central clearing agency. The rule extends to those who are a party to “eligible secondary market transactions” regardless of their jurisdiction. This includes market participants in the UK, the European Union, APAC and other jurisdictions in addition to the US. The purpose of this article is to examine the requirements of the clearing mandate, to review the legal issues and documentation requirements which it raises.

The challenges of bringing cryptoassets within the UK regulatory perimeter

This article explores the proposals to bring cryptoassets within the regulatory perimeter. It summarises the current and new regimes and assesses some of the challenges that may materialise.

The evolution of the ESFS in a time of armed conflict: legal foundations, policy options and practical considerations

The EU remains, by design and aspiration, a project of peace. Yet a deteriorating global security environment requires policymakers, supervisors and private-sector actors to contemplate an unprecedented question: how would the European System of Financial Supervision function (ESFS) – and how might it have to evolve – were the EU or NATO drawn into armed conflict? This article analyses, from a legal and strategic perspective, the extraordinary measures that could be deployed to safeguard the Single Market for financial services in wartime. After setting out the relevant treaty bases, the discussion examines: (i) emergency legislation and supervisory override of business-as-usual (SOBAU); (ii) likely pathways towards further institutional centralisation; (iii) the special role of emergency money – ranging from historic Notgeld  to a future Digital Euro with offline functionality; and (iv) the preparedness agenda for financial institutions. The contribution concludes that pre-emptive legal clarity, coupled with rigorous private-sector contingency planning, is indispensable if Europe’s financial architecture is to remain resilient under the most extreme of circumstances.

How long can a senior lender withhold repayment confirmation to discharge security in an intercreditor agreement?

In this article the authors consider the question for how long a senior lender can refuse to give confirmation that the liabilities owed by the borrower to the senior lender have been irrevocably discharged in full.

The Moveable Transactions (Scotland) Act 2023: some points from practice six months on

In this article the authors review the Moveable Transactions (Scotland) Act 2023 (the Act), which came into force on 1 April 2025, and consider some of the common trends, issues and nuances arising in practice in the Act’s first six months in operation, in particular: 

• Perfection of assignations by registration and/or notice (or both). 
• The boundaries of what is assignable under the Act. 
• Invalidation of statutory pledges by disposals outside consent regime. 
• Enforcement and voting rights in relation to share security. 
• Information requests to lenders. 

Petrofac: the unanswered question of fair allocation

The Court of Appeal’s recent decision in Saipem S.P.A and Ors v Petrofac Limited & Ors [2025] EWCA Civ 821, overturning Marcus Smith J’s decision in the High Court ([2025] EWHC 1250 (Ch)) (Petrofac), has generated substantial comment. This is the third Court of Appeal decision on Pt 26A of the Companies Act 2006, the other two being Kington S.A.R.L. & Another v Thames Water Utilities Holdings & Ors ([2025] EWCA Civ 475) (Thames Water) and Strategic Value Capital Solutions Master Fund LP v AGPS Bondco PLC ([2024] EWCA Civ 24) (Adler). The main issues addressed in Petrofac were whether the position of creditors who were “out of the money”¹ in the relevant alternative (insolvency, as in all three cases) could be disregarded when considering whether the benefits generated or preserved by the restructuring had been allocated fairly, and the proper approach to evaluating what constitutes a “market return” for new money advanced under a restructuring plan.