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Take-off for digital bonds? The EU DLT pilot regime
The EU Regulation on a pilot regime for market infrastructures based on distributed ledger technology entered into force in June 2022. This article examines its key features and likely impact on the market for digital bonds.
20 March 2024Loan defaults: untimely remedies and potential hangovers in credit agreements
This article examines some of the current issues arising in leverage finance agreements on defaults and the expansion of express remedy terms that can impact on debt transfers.
20 March 2024Musk v Twitter: it’s not just lawyers who have an opinion on the likelihood of success of the litigation: the market does too!
Despite entering into a binding agreement with Twitter, Elon Musk has backed out of completing the purchase of the company at $54.20 per share. Twitter has commenced action in the court of Delaware. If it wins, its share price should increase to around $54.20 from the current $37.74. On the other hand, if it loses the share price will drop to $37.40, the level it was prior to the announcement of the bid. From this it is possible to calculate the probability of success of Twitter’s action implied by the current market share price (using some assumptions). This market implied probability can be compared to that obtained using legal analysis, which can then inform investors whether to buy or sell Twitter shares. It also gives litigators a rare opportunity to back their analysis!
20 March 2024Extending the cloak: individual immunity for foreign officials
In this article, Daniel Benedyk considers the application of state immunity to individuals acting on behalf of states and “separate entities”. This issue was not addressed in the State Immunity Act 1978 (SIA), but has since been developed in case law. In particular, it has been considered in two significant decisions of the Commercial Court in the last year.
20 March 2024Financial sanctions and the case for digital central bank money
Central banks around the world have been contemplating the creation of central bank digital currencies (CBDCs)1 for the best part of the last five years, with some of them already experimenting, at the time of writing, with pilot schemes. This article explores to what extent the armed conflict that recently erupted in Europe’s periphery strengthens, as some have argued, the case for their issuance so as to better enforce financial sanctions imposed on deviant state actors or, instead, creates risks of currency retaliation as well as jeopardising the credibility of public money and its issuers.
20 March 2024Bragging rights: termination clauses and implied duties of good faith
In this article, the authors consider the circumstances in which termination clauses in a commercial contract might be subject to a so-called Braganza duty of good faith and the practical issues that might follow from this.
20 March 2024The endgame: issues in enforcement against cryptoassets
This article considers the possibility of recovering cryptoassets without the authorisation of the private key.
20 March 2024Tiptoe through the tulips: fiduciary and common law duties of care in cryptocurrency
Tulip Trading Limited v Bitcoin Association for BSV and ors [2022] EWHC 667 (Ch) involved an unusual claim by an alleged owner of Bitcoin seeking to force core developers of the Bitcoin code to take reasonable steps to “patch” that code to circumvent the fact that the claimant no longer controlled the relevant private key. This was analysed by the court on traditional principles of fiduciary duties and common law duties of care, but more broadly the claims can be seen to challenge the decentralized nature of the Bitcoin blockchain and the importance of private keys to the certainty and security of that blockchain.
20 March 2024The Excluded Asset Gap: why floating charges capture realisations of unsecured assets
Will the proceeds of the sale of an asset, excluded from the scope of a floating charge, be captured by that charge when sold by an insolvency practitioner? In this article the authors consider the default position under general law in relation to this issue and what parties should do to ensure their intentions are appropriately reflected when formulating security packages.
20 March 2024Cryptoassets, consumers and foreign arbitration
This article considers Soleymani v Nifty Gateway LLC [2022] EWHC 773 (Comm) (Soleymani) in which the High Court held it had no jurisdiction and granted a stay under s 9 of the Arbitration Act 1996 (AA 1996) of proceedings brought by an English consumer primarily to enforce his rights under the Consumer Rights Act 2015 (CRA 2015).
20 March 2024
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