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Calling a spade a spade: substance over form in covenants restraining further borrowing
This article explores whether negative covenants restraining borrowers from assuming further borrowing at certain interest rates might be evaded and the importance of treating interest as a matter of substance not form.
28 February 2026Political risk in project and infrastructure finance: rising challenges and modern mitigation strategies
Drawing on transaction experience across Europe, the CIS, Asia and Africa, this article examines the most material political risks affecting project finance today and assesses how mitigation strategies have evolved in response.
Project finance has always involved the allocation and management of complex risks across financing construction, legal, operational and political domains. Among these, political risk has become a central constraint on bankability, particularly for large infrastructure, energy and natural resources projects operating across borders.
This shift reflects a broader change in behaviour of states. Governments are more interventionist in sectors viewed as strategic, fiscal pressures are increasing and geopolitical fragmentation has reduced tolerance for long-term private contractual arrangements that limit public policy flexibility. As a result, political risk can no longer be treated as a residual issue addressed through standard documentation; it has become a core structuring consideration for lenders and sponsors. From a lender perspective, this shift has tangible consequences. Political risk is no longer assessed late in the diligence process or treated as residual documentation issue; it increasingly dictates whether a transaction proceeds at all.
Increasingly, these risks are shaped not only by host-state behaviour but by wider geopolitical dynamics, including sanctions regimes, strategic competition over natural resources, and intervention by third states pursuing national or regional interests. As a result, projects may be exposed to political risk even where domestic institutions appear stable and contractual frameworks are robust. This shift marks a move from traditional country risk analysis towards a broader assessment of geopolitical risk, which can evolve rapidly and is often beyond the control of project counterparties.
LMEs under attack: possible challenges and how they might succeed
With the ever-increasing and more ambitious use of out-of-court liability management exercises mechanisms for debt restructuring, dissenting creditors are having to consider the possible claims that they can bring to challenge an unfair transaction. In this article, we consider the possible claims that might be brought, the consequences of a successful challenge, and the novel issues that the courts will face if and when challenges become more frequent.
28 February 2026To ban or not to ban; that is the (cryptoasset) question
This article provides an overview of the relevant regulatory systems and policy frameworks across key jurisdictions, illustrating the complexity of the choice faced by regulators between banning and regulating cryptoassets. It examines three dominant approaches.
27 February 2026Are we reaching any further clarity on Braganza in loan documentation?
It is becoming increasingly clear that the nature of the relationship and expectations between the contracting parties is a key factor in whether a Braganza term will be implied. This aligns with the usual case-by-case approach to the construction of contracts and the implication of terms.
27 February 2026Can we vibe code financial contracts?
Writing executable financial contracts remains a challenge due to the linguistic gap between legal prose and computer code. Logical English (LE) bridges this divide, offering a human-readable yet executable framework. This article examines the emergence of “vibe coding”–an iterative, agentic workflow using Generative AI – to automate contract development. By leveraging Large Language Models to translate legal intent into formal LE structures anchored in the Common Domain Model, the industry can move toward a “vibe-to-code” reality. This approach harmonises the probabilistic power of AI with the deterministic certainty required for banking law and complex derivative documentation.
27 February 2026“Measured at origination” in EU and UK securitisations
EU and UK securitisation rules require the originator, sponsor or original lender of a securitisation to retain on an ongoing basis a material net economic interest in the securitisation of not less than 5%, "measured at origination". This rule is a fundamental principle of the EU and UK risk detention rules, designed to ensure the retainer has "skin in the game" from the start and throughout the life of securitisation.
The meaning of “measured at origination” has given rise to a number of issues, primarily concerning measurement methodologies, ongoing compliance, and a lack of clarity in relation to certain structures. Regulatory guidance and market practice have provided various clarifications and technical standards, but a number of issues and ambiguities remain, and the EU and UK rules diverge in certain respects.
Wrongful trading and the creditor duty in refinancing scenarios: uneasy bedfellows?
The decision in Re BHS Group Ltd shows that directors of companies in distress will have to navigate both the creditor duty and potential wrongful trading liability. This article explores how the creditor duty and wrongful trading liability sit together and offers practical advice for directors seeking to navigate the two, particularly in refinancing scenarios.
27 February 2026Supply chain finance in the EU: Part 3 – making SCF transparent: data standards, repositories and servicer governance
This article operationalises a critical framework for enhancing transparency and resilience in EU supply chain finance (SCF), particularly for non-securitised transactions. It addresses the prevailing opacity by proposing a concrete market architecture comprising proportionate, machine-readable data standards, an access-controlled repository model and baseline servicer governance aligned with existing EU regulatory regimes such as the Digital Operational Resilience Act (Regulation (EU) 2022/2554) (DORA). The objective is to replace fragmented information with consistent programme data, lifecycle traceability and reliable operational safeguards across bank and nonbank sponsors. By advocating for a European Securities and Markets Authority-supervised repository interoperable with e-notice solutions, the framework aims to significantly reduce search costs, curb double-pledging risks, improve price formation and bolster day-to-day servicing resilience. Ultimately, these measures will foster a more transparent, efficient and robust SCF market, directly benefiting small and medium-sized enterprises and advancing the broader goals of the Savings and Investments Union within the EU Single Market.
27 February 2026Does a contract of indemnity sound in damages, or in debt?
There are two contradictory lines of Court of Appeal authority as to the nature of a claim under a contract of indemnity: one treats an indemnity as sounding in unliquidated damages (McGuinness v Norwich and Peterborough Building Society [2011] EWCA Civ 1286); the other as sounding in debt (Royscot Commercial Leasing Ltd v Ismail (unreported) 29 April 1993). The issue is of particular importance in insolvency, because it would follow from the analysis in McGuinness that an indemnity cannot give rise to a liquidated debt capable of giving rise to a bankruptcy petition. This article argues that such a conclusion is not justified: whether an indemnity can give rise to a liquidated debt should be a question of construction of the indemnity in question.
27 February 2026
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