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“Now what news on the Rialto?”: the resurgence of capacity risk and the slow demise of contractual estoppel
In this article Professor Gerard McMeel KC considers discussions in recent Italian local authority swaps cases of the controversial doctrine of contractual estoppel and its potential impact on questions of capacity.
19 March 2024Regulatory mandates and review in the 2022 Financial Services and Markets Bill: marking their own homework
There are a number of notable features of the Bill: this article will concentrate on Chapter 3, which concerns the accountability of regulators. The key provisions for the Prudential Regulatory Authority (PRA) are in ss 27-29. These amend the Financial Services and Markets Act 2000: (i) s 27 imposes a duty on both the PRA and the Financial Conduct Authority (FCA) to review rules; (ii) s 28 gives the Treasury certain powers in relation to rule making; and (iii) s 29 grants the Treasury powers to determine matters which the regulators must include in their considerations when making rules. Together, they represent a significant change to the prudential regulatory process in the UK. In this article, the author explains the background to these provisions, discusses the current text, considers its likely effect, and explores some potential improvements to it.
19 March 2024Re-fencing: the pitfalls, and opportunities, of M&A for ring-fenced banks
The UK’s bank ring-fencing regime puts barriers in the way of mergers and acquisitions by ring-fenced bodies. The government has recently evidenced its intention to relax these, both as part of its review of the regime generally and, during times of crisis, for specific acquisitions. This article outlines the concessions already provided for in the ring-fencing regime and highlights the remaining challenges, particularly for acquirers which are already subject to the ring-fencing regime. (This article does not seek to examine the policy arguments for and against the ring-fencing regime, which have been examined as part of the Ring-fencing and Proprietary Trading Panel Report (referred to as the Skeoch Report) and which are subject to further consideration under a government consultation which is open for response at the time of writing.)
19 March 2024Commercial choices: are Braganza duties a path to payment under commission agreements?
This article explores whether those engaged to raise finance can use Braganza duties to obtain remuneration, even where finance raising transactions do not occur. In light of the decision in Horlick v Cavaco [2022] EWHC 2935 (KB), there are significant obstacles to such claims.
19 March 2024What is an insolvency proceeding?
To the question in the title, one may be forgiven the innocent response “Who cares?”. In fact, the question matters for all the reasons that legal categorisation matters, and it matters particularly clearly in the context of insolvency. In this article I explain the importance of the question. (This article is adapted from a longer piece which draws on functional, historical, comparative and doctrinal analyses.1)
19 March 2024COMIng apart? Centre of Main Interests under Chapter 15 and the EUIR
In this article the authors consider two recent decisions that illustrate how a US bankruptcy court and the English Court of Appeal (applying the EUIR to a pre-Brexit case) can analyse COMI in different ways. The decisions have implications for groups that need to restructure cross-border financing arrangements – particularly where financing has been raised by a “letterbox” company (SPV). Such companies may face greater challenges establishing that their COMI is in their jurisdiction of incorporation before a US bankruptcy court than they would in Europe.
19 March 2024Credit Suisse, AT1 bonds and taking the BIT between the teeth
Given the huge losses suffered by Additional Tier 1 bondholders, it is unsurprising that lawyers are exploring various potential avenues for investors to obtain redress. This article focuses on investment treaty claims. In the authors’ view, such claims provide a potentially attractive route for investors to recover losses.
19 March 2024Law Commission Report on Digital Assets
In this article the authors discuss two key conclusions and recommendations from the Law Commission’s final Report on Digital Assets.
19 March 2024Regulation of small banks in the UK: lessons learned from SVB UK
This article focusses on the regulatory capital and resolution regime for non-systemic deposit-takers in the UK (for ease, small banks) and potential changes after the resolution of Silicon Valley Bank UK Limited (SVB UK).1 The failure of SVB UK came at an interesting time for prudential regulation of smaller banks as the PRA has been considering the creation of a tailored and proportionate regime. This article considers whether the failure of SVB UK might prompt changes to the PRA’s thinking including making liquidity and concentration risk rules more stringent for banks of all sizes.
19 March 2024Sequana in the Supreme Court: cautious confirmation of the creditor-extension to the director’s duty of loyalty
In this article, Professor Peter Watts KC analyses and critiques the decision of the UK Supreme Court in BTI 2014 LLC v Sequana SA [2022] UKSC 25 (Sequana). This decision confirmed that the directors’ duty to promote the success of their company extends to requiring some consideration of the interests of the general body of the company’s creditors after, but not before, the company becomes insolvent or imminently insolvent. Once a company’s insolvent liquidation or administration becomes inevitable, the interests of creditors become the exclusive focus of the duty of loyalty.
19 March 2024
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