Feature

In this article, the authors diagnose a governance paradox in private markets: as operating models shift from fund-by-fund deployment to platform-level management, decision-making authority is centralised while fiduciary obligations remain fragmented across legally separate vehicles. Governance frameworks designed for episodic, vehicle-level decisions are structurally exposed to ad hoc retrofits that may not reliably balance competing investor interests.

In this article, the authors consider how buy- and sell-side parties to securitisation transactions can prepare for the next phase of UK reforms, as the Financial Conduct Authority and Prudential Regulation Authority consult on a more principles‑based, flexible regime intended to enhance UK market competitiveness.

A recent case has held that the rule in Ralli  Brothers  does not apply to unlawfulness arising from court orders rather than legislation or to unlawfulness in places that are not contractually specified but are necessarily involved in contractual performance. These holdings are suggested to be wrong, but they will generate further argument. Another recent case has developed the law on the place of performance of demand instruments.

Recent caselaw has shown that a default rate clause in a finance agreement may be unenforceable as a penalty, particularly in cases where a single rate applies to multiple types of events of default. This article considers the recent caselaw and the approach adopted by the courts in assessing default rate clauses. It then considers the steps that can be taken by lenders to mitigate the risk that the default rate clause is struck down.

AI “agents”, which combine the reasoning of generative AI with memory and execution capabilities, are the next frontier of AI risk and opportunity. One rapidly emerging application is agentic commerce, where agents autonomously execute tasks and make payments – whether operating alone or in multi-agent systems. For financial institutions, the question is not whether agentic commerce will arrive, but whether their existing compliance frameworks can absorb it. This article considers how firms can satisfy regulatory obligations, mitigate risks and allocate liability in this new landscape.

There has been much discussion about law firm financing and ownership. There is an increasingly wide base of potential "lenders", who all have different drivers which dictate the terms they are able to offer. At Harbour, we have many approaches for law firm financing, for a multitude of purposes, not just litigation. What is clear, is just how relatively limited the levels of understanding are about the options, terms, terminology and impacts of different types of financing. Firms must put the necessary groundwork in place before soliciting financing, to maximise their chances of securing the lending. This article is intended to remove some of that mystery and also a checklist of information a firm should prepare before approaching a finance source.

"Tokenisation ... could streamline collateral mobility by enabling near-instant movement of assets across firms and jurisdictions."¹The increased use of digital assets as collateral is recognised by financial market regulators, as well as by industry participants, as an opportunity to enhance efficiency and reduce the risks associated with cross-border collateral exchanges between financial firms and with end-users. The borderless nature of the markets and infrastructure which enables transactions in digital assets also complicates the assessment of legal risk. One critical issue is that of priority, meaning the ability for providers of debt finance to obtain a security interest over a digital asset which ranks ahead of other claimants. This article compares the position in England and Wales with the US under Art 12 of the Uniform Commercial Code. 

This article considers the emergence of “anti-cooperation” provisions in US credit documents. Anti-cooperation language is broader than an express ban on cooperation agreements and includes voting and concentration caps, disqualified counsel provisions and other tools designed to shape who may organise, advise and vote in anticipation of a liability management exercise. The market response has been mixed. Most formulations have met strong resistance in the broadly syndicated loan market, but narrower or more bespoke versions have begun to clear in edge cases. The result is a new documentation battleground centred on process control rather than only transaction mechanics.

This article examines the principal considerations that ought to inform the chosen approach, with particular reference to the distinction between accessory and non-accessory security regimes. It gives close attention to French law – where the accessory nature of sûretés réelles means that a mainlevée (a formal release) serves primarily to update public registers and to render the discharge binding on and enforceable against third parties (as non-signatories) – and contrasts the position with that under English law. The article proposes a framework for deciding when a consolidated release is feasible, when it is not, and how to manage the interface between English law deeds and foreign law discharge formalities.

DeFi lending protocols now hold billions of dollars in digital assets, yet important questions remain about the legal architecture underpinning them. This article interrogates a deceptively simple question: when digital assets are deposited into a DeFi vault or market governed by autonomous smart contracts, who owns them and what are the depositor’s rights in respect of them? In a genuinely decentralised structure, there may be no insolvency process through which to distribute assets to creditors, leaving lenders to bear the full risk of a protocol’s collapse. Insolvency practitioners appointed over borrowers are also likely to face issues applying insolvency law to collateral deposited within markets. The practicalities of these structures and the way they interface with the law are still untested in England and are likely to continue to develop in line with the industry.