Feature

Staking services in insolvency: problems of certainty and predictability

Centralised platforms offer their customers a range of services, a relatively newer one being staking services. In the event of the insolvency of the platform, a fundamental question is how the assets received by the platform for staking purposes will be treated. Will they be part of the insolvency estate, or will they be returned to the customers? This will depend on the legal characterisation of the relationship between the platform and its customers. This article looks at this issue from a functional perspective and argues that the operational practices of the staking platform, fee structures and the level of discretion of the platform should play an important role in the analysis.

The growing emergence of competitive tension in the liquidity market

In the current climate, borrowers are more likely to encounter liquidity issues rather than covenant breaches and are increasingly turning to private credit for time-sensitive cash injections, primarily due to the flexibility private credit providers offer. As these new creditors enter the debt stack, conflicts between them and existing creditors may well emerge. Sponsor-backed borrowers are increasingly deploying tactics popularised in the US to prime existing lenders who fail to follow their money. However, the need for new money to have super-seniority, to benefit from downside protection and obtain access to upside recoveries requires creative structuring.

Board minutes after Sequana: practical advice for the corporate drafter

In this article, in light of the decision in BTI 2014 LLC v Sequana SA [2022] UKSC 25, Philip Morrison seeks to offer practical advice, including which considerations should be included, when drafting board minutes.

Blue pill or red pill? Into the Tulip Trading rabbit hole

Lessons from the SVB collapse for banking regulation

In this article Avinash Persaud considers the more immediate and the lasting lessons from the recent bank crisis.

Toto’s law: looking behind ESG rating agency curtains

In this article, Dan Harris tests the provisional regulatory response to the risks, particularly bias, presented by ESG ratings providers when they repackage information scraped off the internet and elevate its status into a “score”. He suggests an industry form of comfort letter for incorporation into contracts between ESG ratings providers and investment managers.

Cryptoassets as property under English law Pt II: ownership, situs and the circular question of jurisdiction

Judgment was recently handed down by the Court of Appeal in Tulip Trading Limited v Bitcoin Association For BSV & Ors [2023] EWCA Civ 83. This article focuses on two issues arising from the basis upon which Tulip Trading Limited’s case and the issue of jurisdiction proceeded in the Court of Appeal: (i) who is the “true owner” of the bitcoin; and (ii) the circular nature of founding jurisdiction.

Electronic deeds: signed, sealed … delivered?

Deeds are often used in commercial practice, particularly where a party wishes to enter into a unilateral commitment or parties wish to vary a contract. However, the requirement that a deed must be “delivered” is potentially confusing. It may cause particular difficulties in the context of deeds that are executed and evidenced electronically.

Sustainability-related disclosures:EU SFDR v UK SDR

The EU Sustainable Finance Disclosure Regulation ((EU) 2019/2088) (SFDR) and the EU Taxonomy Regulation and the UK Sustainable Finance Disclosure Requirements (SDR) and labelling regime both aim to increase transparency, investor protection and disclosure around sustainable finance products and the climate impact of investments. Both the SFDR and SDR and emerging regimes in the US and internationally are designed to meet market concerns around the need for improved climate disclosure requirements. In this article, we seek to compare the key themes and features of the SFDR and SDR to determine possible areas of divergence and convergence particularly for those firms who need to consider the applicability of both the UK and EU requirements to their products and services. We set out below a recap of both regimes and significant areas of difference between the two UK and EU regimes in particular.

The vexed and litigious question of “unallowable purpose”

In this article, David Milne KC considers the recent decisions in “unallowable purpose” cases, many of which have arisen in loan relationships, and explains why mere knowledge of the tax advantage by the directors of the taxpayer company should not of itself deny the tax relief.