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UK securities fraud litigation gains momentum: Autonomy and G4S
This article examines two recent decisions in securities fraud cases: (i) ACL Netherlands v Lynch [2022] EWHC 1178 (Ch) (Autonomy); and (ii) Allianz Global Investors GmbH v G4S Limited [2022] EWHC 1081. The former considered such important questions as what published information is caught by s 90A of the Financial Services and Markets Act 2000 (FSMA), how statements in such information are to be construed, what constitutes the requisite guilty knowledge and how reliance is to be proved. In the latter case, the court held that so-called “person discharging managerial responsibility” (PDMR) status in these claims is limited to English law concepts of directorship but emphasised the potential elasticity of de facto directorship in particular.
20 March 2024Transferring legal title to a digital asset
In this article, Hin Liu considers what should be required to transfer legal title to a digital asset. He argues that the requirement should be a “change of control” coupled with an intention to transfer title, and that it would be inappropriate to require an “on-chain transfer”.
19 March 2024Bind to law: Soulbound tokens and property law
Soulbound tokens (SBTs) are a novel type of crypto-token. They are not intended to be treated as liquid, transferable items, but instead as verifiable and non-alienable repositories of provenance-secure information related to specific people. SBTs are intended to be non-transferable – but because of the technological medium within which they are created, they are generally transferable as a matter of fact. This article considers whether it is justifiable to treat this type of token as an object of property rights. It suggests that property law could help to achieve what technical design alone cannot – the non-transferability of SBTs. While the ability to transfer the token might remain as a matter of fact, SBTs might achieve non-transferability as a matter of law, through the application of property law concepts such as relativity of title and the bona fide purchaser rule.
19 March 2024Erroneous payments in syndicated loans: the future of the “Revlon blockers”
Even though the Second Circuit has restored a sense of calm by ordering the lenders to return mistaken payments to Citibank in the infamous Revlon case, the Revlon blocker is here to stay. This article will examine its various permutations and will propose suggestions on how parties may wish to fine tune their Revlon blockers in light of the Second Circuit’s emphasis on the role of constructive knowledge in dismissing the “discharge for value” defence.
19 March 2024Edinburgh Reforms: does the Senior Managers and Certification Regime need changing?
In this article, the authors evaluate the successes and failures of the Senior Managers and Certification Regime (SMCR) and consider whether the Edinburgh Reforms are likely to result in radical change.
19 March 2024English law in the 21st century: does it need an update to accommodate crypto?
The recent Law Commission Digital Assets Consultation Paper proposes the creation of a third category of personal property under English law. The article focuses on identifying some of the practical consequences of this proposal from a financial services perspective. This is achieved by summarising some of the main points made in the consultation and considering the potential impact for the use of English law.
19 March 2024Project bonds and energy transition: a proven financing solution
The stricter monitoring/disclosure and liquidity requirements faced by banks in the wake of the global financial crisis mean that projects can often no longer be funded by traditional bank debt alone. The debt capital markets have stepped up to the challenge and project bonds are on the rise, particularly amidst the green finance boom. Whilst the specific challenges that project bonds pose when used in a project financing arrangement are complex, they are by no means insurmountable and with the help of experienced professionals, project bond financings can be structured in a way that offers a viable alternative solution.
19 March 2024Taking security over certificated shares in private companies
The article discusses the correct characterisation of the transfer of the share certificate and a blank stock transfer form to the lender where the latter takes an equitable security interest over the shares. It discusses differences in practical treatment where the share certificate is electronic or digital in form.
19 March 2024Unknown unknowns: the worldwide development of the Worldwide Freezing Order against persons unknown
The Worldwide Freezing Order has undergone a significant new development in recent years, as the courts have sought to adapt the powerful interim remedy to cases of internet fraud by, for the first time, making such orders against persons unknown. This article surveys together the published decisions to date in England and elsewhere in the common law world and suggests that while this development is here to stay, uncertainty remains about its application and scope, particularly how the unknown persons subject to it should be described.
19 March 2024Crypto fraud and the bona fide purchaser for value defence
In this article Helen Pugh considers the bona fide purchaser for value defences at common law and in equity and their application to crypto transactions tainted by fraud.
19 March 2024
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