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ESG investing: a growing gulf between the US and Europe?
In this article Camilla Macpherson provides an overview of the key initiatives and developments in Sustainable Finance Regulation in the EU, UK and US. She then highlights how ESG has become a political battleground in the US and considers the implications for firms, particularly those operating internationally.
19 March 2024Loan documentation and risk-free reference rates: current overview
In this article, we give a brief overview of RFR referencing loan documentation in the English law syndicated loan markets together with the current and future issues of use of a term SOFR on USD syndicated loan transactions and risk-free reference rates in the context of euro and EURIBOR.
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 2024Pension 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 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 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 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 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 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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