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Different jurisdictions’ approaches to Quincecare: England and Wales lead the expansive approach
Singularis remains the only case in England and Wales to establish breach of the Quincecare duty. So, is the industry getting carried away with the hype in circumstances where, on sober reflection, there may not be much of substance to be seen here? We chart the development of the Quincecare duty in various jurisdictions, before proposing an appropriate purview for the duty.
19 March 2024When Singapore REITs go under: risks and solutions for lenders
In this article the authors discuss the fundamental differences, from a Singapore law perspective, in how creditors might be treated in the insolvency of a real estate investment trust (REIT) compared to the insolvency of a company and explore some possible structures and mechanisms which might enable a REIT and its creditors to restructure or wind up a REIT synthetically. (In the UK, a REIT is a UK company limited by shares, with separate legal personality, so the issues raised in this article do not apply to UK based REITs).
19 March 2024Russian sanctions in the English courts
This article considers the effect of sanctions imposed by the UK following Russian’s invasion of Ukraine in February 2022 on litigation, commercial transactions and insolvency, via an overview of a series of decisions of the English High Court in these areas.
19 March 2024Re Duomatic: plugging holes and fixing oversights but not all of the time
In this article Matthew Weaver KC considers when a lender or borrower company can rely on the Duomatic principle and the limits to its application.
19 March 2024Banks’ climate liability: what to learn from states and oil majors
Banks are no real-economy actors, but they do face a very real risk of climate liability: indirectly, because of the litigation impending on clients with greenhouse gas-intensive activities and products; directly, because banks may fail their own legal duty to actively reduce their (financed) emissions. This latter risk is particularly relevant to many banks considering their mostly inadequate transition plans. Pim Heemskerk and Roger Cox analyse how the concept of climate liability may apply to banks. Their firm Paulussen Advocaten NV acts for Friends of the Earth Netherlands et al. in the landmark case against Shell plc and has acted in similar landmark climate cases against states.
19 March 2024Using guarantees for capital relief: legal characterisation matters
Financial institutions use a range of credit protection arrangements to mitigate minimum capital requirements under Basel III. The eligibility requirements for credit protection require consideration of the terms of the instrument in the context of the applicable legal framework. Credit insurance policies are subject to additional principles of English insurance law that can affect whether a policy is an eligible credit protection arrangement. Risk participation agreements share characteristics with credit insurance, but would not typically be considered to be insurance. This article gives an overview of the key eligibility requirements applicable to different types of guarantees, and considers the factors relevant to determining whether a risk participation should be treated as a contract of insurance.
19 March 2024The National Security and Investment Act 2021: secured lenders can take comfort in latest guidance but exercising voting rights remains a risk
In this article Rebecca Oliver considers how the further market guidance published in July 2022 by the Department for Business, Energy and Industrial Strategy (BEIS) – which includes commentary on the application of the National Security and Investment Act 2021 (NSIA) to security arrangements – helps secured lenders. The article considers where lenders still need to be wary of the NSIA implications and suggests how lenders and their advisers might limit NSIA risk in lending structures.
19 March 2024Claiming subrogation where a debt owed by a third party is discharged by a payment made by mistake
In this article Matthew Parker KC considers the remedy of subrogation where money is provided by mistake. The context is Citibank’s mistaken US$500m payment to lenders which has now, on appeal, been held not to have discharged Revlon’s debt. This follows Matthew’s earlier article in the July/August 2021 edition, ‘Payments by mistake: when will the discharge of an existing debt be a defence to a claim for repayment’ (2021) 7 JIBFL 457.
19 March 2024Collateralised Fund Obligations (CFOs): the technicolor dreamcoat of fund finance from a US and UK/EU perspective
In this article the authors examine the mechanics of Collateralised Fund Obligations (CFOs) including GP-side and LP-side considerations, disclosure vs confidentiality, rating agency considerations and risk retention analysis.
19 March 2024How has the UK National Security and Investment Act impacted cross-border M&A?
This article considers the types of M&A deals that the UK government has intervened in using its powers under the National Security and Investment Act (NSIA) and the conditions that have been attached to secure approval. It further considers the global position of the UK by comparison to similar regimes that regulate foreign investment in other jurisdictions (such as CFIUS in the US) and the potential issues faced by multi-national investors needing to grapple with multiple sets of rules.
19 March 2024
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