Feature

Fantastic cryptos and where (not) to find them: prudential rules for the digital age

Since their main-stream inception with Bitcoin in 2009, cryptocurrencies have evolved dramatically, emerging as a transformative asset class distinct from traditional flat currencies. Cryptocurrencies and distributed ledger technology have introduced significant efficiencies, such as greater transactional transparency, faster settlement processes and increased financial accessibility. As a result, the market has grown exponentially, achieving a market capitalisation f approximately US$3.93trn (as at 22 July 2025), signifying deepening integration within the global financial system. 

Notwithstanding the successes, a string of scandals, including the collapse of crypto ventures such as Celsius, BlockFi and Terra and the implosion of FTX, has brought renewed focus on the volatility and liquidity of such instruments and their systemic impact. In response to the rapid evolution and integration of cryptocurrencies, the Basel Committee developed a detailed prudential framework designed to manage the associated risks effectively. This article examines these developments and their implications for banks globally, and addresses whether the rigid classification into Group 1 and Group 2 cryptoassets strikes an appropriate balance between prudential conservatism and enabling banks to engage competitively within this evolving market. 

Is there room for more than one concept of Material Adverse Change in your Facility Agreement?

This article was inspired by the UCL ‘Contract Law and the Unexpected’ conference on 16 May 2025 (Conference). At that conference a paper was presented which argued that material adverse change (MAC) clauses are similar to force majeure clauses and deal with uncertain events, but often with insufficient clarity. In this article we look at whether conventional MAC clauses in facility agreements are fit for purpose, and what that purpose is. We also look at a hybrid approach which creates a contractual renegotiation obligation when there is a change which may have a material adverse effect on the business or operations of the Borrower but falls short of being likely to cause a financial covenant breach or insolvency. This is also considered in the context of the debate about the role of good faith in contracts and its application to debt financing arrangements.

Creative class composition: the hunt for the anchor class

The Restructuring Plan’s cross-class cram down tool gives distressed companies new opportunities to impose contested deals on dissenting stakeholders through creative composition of “cramming” or “anchor” classes. No one can be surprised that debtors are using the law to their advantage, but how far will the courts let them go in the hunt for such anchor classes?

“Make-whole” clauses under Ch 11 and Pt 26A restructuring plans

While the Pt 26A restructuring plan in English law has been in existence for five-years, and daily expands its depth of case-law, we still often look across the Atlantic Ocean to the American Ch 11 restructuring fights to see issues not yet addressed on these shores. One such hot topic in the American sphere is the treatment of “make-whole” clauses and post-insolvency interest, and whether such matters can and should be considered within a restructuring.

Conspiracy theories: unlawful means conspiracy and the problem of private rights

Over the last two decades the scope of the economic torts has been considered in a variety of business contexts and the tort of conspiracy to injure by unlawful means is no exception. Liability may arise where two or more persons combine and take unlawful action with the intention of causing damage to a claimant who incurs the intended damage. Difficult questions about the state of mind of those involved have often arisen. But in the years since the decision in The Racing Partnership Limited v Sports Information Services  [2020] EWCA Civ 1300, those participating in competitive deals, where gain could be said to come at the expense of another, may find themselves alleged to have participated in a tortious conspiracy despite believing their activities to be lawful.
This article examines the current state of the law, where difficulties have arisen, and the need for the limits of the tort to be explored further in order to address uncertainties that remain. 

Will lenders have confidence to lend against commonhold?

The Commonhold White Paper, published in March 2025, proposes changes to the commonhold scheme in the Commonhold and Leasehold Reform Act 2002 which are said to make it beneficial not just to flat owners, but also to lenders. This article gives an overview from the lender perspective and as against leasehold.

Tokenisation of investment funds: some legal challenges

Much like the industrial and information revolutions before it, the Digital Assets revolution will fundamentally reshape the landscape of financial services. Everything we now know in financial services will be impacted. With the tokenised assets market projected to reach $18.9trn by 2033 (Ribble and Boston Consulting Group¹), this article explores some key legal issues arising from the tokenisation of investment funds.

Financial crime reforms creating new risks and challenges for firms

The Economic Crime and Corporate Transparency Act has introduced a novel failure to prevent fraud offence, as well as extending the criminal attribution doctrine to hold large firms liable for the actions of a wider range of senior managers. In this article the authors consider these reforms as well as areas of uncertainty and new risks. They provide some practical guidance.

Layering it on thick: the evolution of the super senior intercreditor agreement

It has been over five years since the Loan Market Association (LMA) published its form of super senior/senior intercreditor agreement for use on European direct lending transactions. While this document has become the starting point for intercreditor agreements on almost all of these transactions in Europe, there have been a number of evolutions to its terms during this period to reflect the requirements of financial sponsors as they look at more complex capital structures to meet the financing needs of their portfolio companies. This article tracks some of these developments and looks ahead to further changes which may be on the horizon.

You can dip twice but can you only prove once? The insolvency implications of “double dip” transactions

In this article the authors consider the insolvency implications of “double dip” transactions, which are becoming increasingly prominent as a form of liability management exercise. The authors first outline some of the different forms of “double dip” transaction structures, before placing them within the existing English insolvency law framework. They conclude with some practical considerations.