Feature

Reforming corporate criminal liability: a missed opportunity to modernise the law

In June 2022 the Law Commission presented the government with ten options for reforming the law of corporate criminal liability, with specific focus on economic crime. In this article we address what we consider to be the key weakness in the Commission’s approach, together with those options which are most likely to provide coherent alternatives, or at least sensible improvements, to the current law. While we take the view that the Law Commission missed the opportunity to reject the identification doctrine altogether as both anachronistic and inherently unsuited to establishing culpability in modern corporate contexts, we welcome the proposed increased emphasis on “failure to prevent” models of liability and the recognition that an administrative system for the imposition of monetary penalties can provide valuable additional means of redress.

An account of profits: when if ever in commercial banking claims?

In this article, Ian Bergson considers the question when, if ever, an account of profits will be ordered in a commercial banking claim, in light of the recent Commercial Court decision in ECU Group plc v HSBC Bank plc [2021] EWHC 2875 (Comm).

Giving notice under an ISDA: lessons learned and potential new approaches

All references to the ISDA Master Agreements in this article apply to both the 2002 ISDA Master Agreement and the 1992 ISDA Master Agreement unless otherwise specified.

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.