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Sustainability-related disclosures:EU SFDR v UK SDR
The EU Sustainable Finance Disclosure Regulation ((EU) 2019/2088) (SFDR) and the EU Taxonomy Regulation and the UK Sustainable Finance Disclosure Requirements (SDR) and labelling regime both aim to increase transparency, investor protection and disclosure around sustainable finance products and the climate impact of investments. Both the SFDR and SDR and emerging regimes in the US and internationally are designed to meet market concerns around the need for improved climate disclosure requirements. In this article, we seek to compare the key themes and features of the SFDR and SDR to determine possible areas of divergence and convergence particularly for those firms who need to consider the applicability of both the UK and EU requirements to their products and services. We set out below a recap of both regimes and significant areas of difference between the two UK and EU regimes in particular.
19 March 2024Electronic deeds: signed, sealed … delivered?
Deeds are often used in commercial practice, particularly where a party wishes to enter into a unilateral commitment or parties wish to vary a contract. However, the requirement that a deed must be “delivered” is potentially confusing. It may cause particular difficulties in the context of deeds that are executed and evidenced electronically.
19 March 2024“Credit bidding” unsecured debt in an administration
In the recent case of Re Sova Capital Limited (in special administration) [2023] EWHC 452 (Ch), the English High Court approved a structure which was, in substance, a “credit bid” by an unsecured creditor. In this article, the authors explore the High Court’s reasoning and highlight key points to be considered by insolvency officeholders looking to replicate this structure as a means of asset realisation.
19 March 2024Dojima rice and digital assets: new tech, old problems? Market manipulation by cryptocurrency exchanges
This article looks at market manipulation by cryptocurrency exchanges. It explores the features of cryptocurrencies and whether or not existing legal frameworks are capable of accommodating a claim or criminal charge for market manipulation. In particular, the article explores the approach in the US where a claim has recently been brought by the US Department of Justice and the Securities Exchange Commission for market manipulation against a former employee of a cryptocurrency exchange.
19 March 2024Deed polls: a difficult solution to a difficult problem
In recent years, a series of newly incorporated companies have proposed schemes of arrangement or restructuring plans pursuant to Pts 26 or 26A of the Companies Act 2006 (respectively) with the express purpose of compromising or amending debts which they are not contractually party to, and which they have no connection with. Their ability to do so relies on a unilateral instrument known as a “deed poll”. In this article, we examine the reasons why the deed poll structure may be used, and some of the issues that the courts have considered and addressed in recent cases.
19 March 2024From Poland with no trust: protection of securities held by financial intermediaries
This article describes the general rules governing the protection of investors’ rights in Poland in the context of securities held by them with financial intermediaries such as brokerage houses. In particular, it discusses how the ownership of securities is treated and protected in Polish legal order.
19 March 2024In context: the FMLC and its paper on good faith
On 2 November 2022, the Financial Markets Law Committee (FMLC) published a paper titled Duties of Good Faith in Wholesale Financial Contracts. The Paper will be of keen interest both to transactional lawyers and to litigators.1 This article begins with a summary of the Paper’s findings, goes on to consider the unique composition and role of the FMLC, places the FMLC’s good faith discussion in the context of the private law underpinning the wholesale financial markets, and then considers the FMLC’s analysis of English contract law which includes a comparison with the approach of other countries, including the United States (New York) and jurisdictions in Europe and the Commonwealth.
19 March 2024Failure to prevent fraud: making up for failure to prosecute?
The UK government has introduced a suite of amendments to the Economic Crime and Corporate Transparency Bill (ECCTB) which, if adopted, would add a new offence of “failure to prevent fraud” by large legal entities to the UK statute book. Corporate crime specialists Richard Lissack KC and Robin Lööf of Fountain Court Chambers analyse the proposed new offence, its background and context, main features and policy justification. Using the experience of over a decade of the existing failure to prevent bribery regime, they then consider the likely impact of the new failure to prevent fraud offence on business.
19 March 2024The practicalities of pleading and proving foreign law in modern financial litigation
In theory, FS Cairo (Nile Plaza) LLC v Lady Brownlie [2022] AC 995 (Brownlie II) includes everything one needs to know about pleading and proving foreign law. However, in practice, it is replete with difficulties for litigators. This article provides guidance to ensure that one pleads one’s case in accordance with Brownlie II whilst not exposing one’s clients to unnecessary costs and satellite litigation.
19 March 2024Damages for breach of anti-assignment clauses
The effectiveness of restrictions on the assignment of contractual rights has been qualified by statute and potentially by the courts. In these circumstances, obligors may look to their remedies against assignors and assignees, which may include damages for breach of contract and for inducing breach of contract. Akhil Shah KC and Daniel Schwennicke of Fountain Court Chambers analyse the relevant legal principles and provide practical advice to secured lenders seeking to take assignments of contractual rights.
19 March 2024
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