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Interpreting statutes and contracts: what are the differences? Part II
In the first part of this article ((2022) 3 JIBFL 192), it was suggested that the basic principles of interpretation are common to all types of legal texts but that the different nature of statutes and contracts means that the application of those principles can differ depending on whether the instrument concerned is a contract or a statute. The first of those differences concerned the identification of the text itself: the text of a statute is easier to establish than the text of a contract.
25 March 2024Synthetic Securitisation made simple: the EU STS securitisation framework embraces synthetic securitisation
In this article, Timothy Cleary analyses the new EU STS framework for synthetic securitisation and comments on its implementation and implications for the UK.
25 March 2024Delegation not abdication: directors’ duties under scrutiny in syndicated loans
In syndicated lending it is common for lenders to delegate functions to an Agent and equally common for companies within a group to authorise the parent to act on their behalf. That has ramifications for the directors of the delegating companies – and for the directors of the delegate. This article considers the issues which may arise.
25 March 2024Intralot’s drop-down restructuring games: priming pari passu noteholders, circumventing non-consenters and artificially reducing asset values
Intralot is the first European group to restructure its debt using the “J. Crew”-inspired drop-down procedure, transferring its unencumbered US business away from unsecured noteholders due to be repaid in 2024, to be used to support secured debt to refinance unsecured notes maturing earlier in 2021. The trustee for the notes due in 2024 is suing and there is a separate claim for fraudulent transfer. In this article, the authors explore: how unsecured pari passu and pro rata noteholders came to prime others by becoming senior secured noteholders under the drop-down procedure; how the drop down was achieved by a US subsidiary issuing unsecured notes due 2025, swapping them for the unsecured notes due 2021 issued by a holding company, being designated an “Unrestricted Subsidiary”, with its shares and assets then being pledged as security for the notes due 2025; how Intralot exploited imprecise but standard drafting of the covenants to ensure the value of the US business was low enough to fit within investment basket capacity required to be used for the drop-down; why only 75% of the primed noteholders may have decided to stay being supported by the non-US business rather than exchange for equity in the US business; how the different bargaining power among creditor groups impacted the restructuring and resulted in unequal outcomes for creditors in the same class; how a minority of 2021 noteholders withheld consent to force repayment of 59% of their notes at par prior to the refinancing-by-drop-down; and “J. Crew” blockers as anti-drop-down provisions and their frequency in 2021.
25 March 2024Secured finance law reform: the Joint Coordination Network
In December 2021, the United Nations Commission on International Trade Law (UNCITRAL), the international Institute on the Unification of Private Law (Unidroit), the International Finance Corporation (IFC), the Organisation of American States (OAS) and a few other governmental and non-governmental organisations launched a Joint Network for Coordinating and Supporting Secured Transactions Reforms (Network). The main objective of the Network is to coordinate the activities of participating organisations in providing technical assistance and capacity building to States and organisations in secured transactions and related reforms. The Network also seeks to facilitate the modernisation and enhancement of secured transactions frameworks, particularly through the adoption and implementation of international standards in this area.1 The Network is the result of four coordination conferences jointly organised and held by the members of the Network in recent years.
25 March 2024Protection of clients’ securities in Luxembourg law
In this article, Paul Mousel considers the methods for protecting investors’ rights in securities under Luxembourg law.
25 March 2024Going green: global finance and the UK green taxonomy
In this article, Antony Hainsworth considers the interrelation between the UK’s proposed Green Taxonomy with the EU Taxonomy Regulation and other national green taxonomies.
25 March 2024Sinking The Siskina? The Privy Council on the jurisprudential nature of freezing orders
On 4 October 2021, the Privy Council delivered its 85-page judgment in Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24, which considered the jurisprudential nature of freezing orders. The majority decided that it was necessary and appropriate to depart from the House of Lords’ decision in Siskina v Distos Cia Naviera (The Siskina) [1979] AC 210. They held that freezing orders are explained by the need to facilitate the enforcement of judgments; and that they can be granted even where there is no pending claim before any court and where the applicant’s cause of action is incomplete.
25 March 2024Lloyd v Google LLC: the end of class action data privacy claims or just the beginning?
In this article the authors consider the impact of the UK Supreme Court decision in Lloyd v Google LLC on banks and other financial institutions which typically control vast quantities of (typically) relatively sensitive financial data.
25 March 2024Rise of the jumbo unitranche: a continuing trend in 2022?
In this article the authors unpack recent unitranche trends, identify reasons for the rising popularity of jumbo unitranche facilities and discuss what it may portend for the syndicated loan market.
25 March 2024
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