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The endgame: issues in enforcement against cryptoassets
This article considers the possibility of recovering cryptoassets without the authorisation of the private key.
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 2024Financial collateral arrangements in the digital asset world
This article covers three issues: (i) which kinds of digital assets (arguably) fall within the Financial Collateral Arrangements (No. 2) Regulations 2003 (FCARs); (ii) what is likely to constitute “possession or control” of a digital asset for the purpose of the FCARs (where a security financial collateral arrangement is involved); and (iii) whether the FCAR regime is appropriate in the digital asset context (and whether there needs to be a separate regime that applies specifically to digital assets).
20 March 2024UK 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 2024Brass in pocket: the developing benchmark for establishing “consumer” status
In this article Nora Beausang considers recent case law relating to the interpretation of “consumer” for the purposes of special jurisdictional rules (Recast Brussels Regulation and its predecessors), considers whether this interpretation has wider application to other regulatory protections applying to consumers and argues for the limitation of this more expansive interpretation.
20 March 2024Protection of securities under custody in Spain
There is no scope for trusts under current Spanish law; they neither exist nor are recognised in the jurisdiction. Incorporating them into Spanish law would require a substantial transformation of Spanish property law. At the same time, it is not even truly clear whether trusts are indeed a bulletproof solution in the context of safeguarding securities under custody. In any case, Spanish law provides for a set of measures designed to safeguard securities held under custody, particularly traded securities held under custody by an entity participating in Iberclear, the Spanish central securities depository.
20 March 2024Anything but equity! Structuring considerations for a debt for equity swap
There are several regulatory and practical reasons why some creditors may not be able or willing to take up an allocation of equity post-restructuring. In this article the authors explore some of those reasons and provide some potential structuring solutions.
20 March 2024Blockchain interoperability: connecting decentralised infrastructure for traditional finance
In this article, Tom Marshall explains the meaning of interoperability in the context of blockchains, existing infrastructure and why and how traditional finance is getting involved.
20 March 2024Cryptoassets as property under English Law: surveying the present lie of the land
In this article, Amy Held draws attention to two ways in which fundamental principles of English property law are being distorted in the present discourse on crytpoassets. First, English law is not really prescriptive as to what “things” fall within the scope of property law or “can be property”, but, rather, is concerned with rights in relation to things. The statement, therefore, that cryptoassets “are property” lacks any real meaning. Second, English law has no real concept of “ownership” as distinct from “possession”. Given that English law tends to focus on the latter, it remains unclear what it means for anyone to assert that they are the “owner” of a cryptoasset, how “ownership” is proved and established, and how the right of “ownership” is vindicated in a dispute.
20 March 2024Pre-hedging versus front-running: six of one, and half a dozen of the other?
Institutions which provide market liquidity, such as banks, are in possession of very valuable confidential client data – their trading intentions. Trading intentions can generate revenue for the bank with little or no risk. This requires the bank to trade for its own account using the client’s confidential information before it trades for the client. This behaviour is generally given two labels: “front-running”, which is considered to be illegitimate, and “trading-ahead”, which is thought to be legitimate. However, their effects are often identical which should imply that their legitimacy should also be the same.
20 March 2024
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