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Swaps litigation: the continuing search for certainty
Banks who enter into swaps with public sector entities might reasonably have hoped that during the three decades since Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1 (in which the House of Lords ruled that the local authority’s interest-rate swaps were speculative and ultra vires) most of the associated legal problems would have been resolved. Two recent cases in the Commercial Court involving Italian authorities show that quite a lot remains to be argued about. These are Deutsche Bank AG London v Comune di Busto Arsizio [2021] EWHC 2706 (Comm) (Busto) and Banca Intesa Sanpaolo SPA & Anor v Comune Di Venezia [2022] EWHC 2586 (Comm) (Venezia). In this article Andrew Fulton KC highlights the continuing problems so far as the enforceability of a disputed swap is concerned.
19 March 2024There are known unknowns: how strict is civil liability for breaches of sanctions?
In this article Tom Leary explains how the introduction of sub-s 146(1A) of the Policing and Crime Act 2017 – the introduction of a strict liability regime for breaches of the UK sanctions regime – has created uncertainty that needs to be addressed quickly by Office of Financial Sanctions Implementation.
19 March 2024The missing piece of the puzzle: the adoption of the UNIDROIT Model Law on Factoring
The International Institute for the Unification of Private Law (UNIDROIT) has just adopted the UNIDROIT Model Law on Factoring after three years of negotiations. The UNIDROIT Model Law is the newest addition to the international legislative framework for receivables finance, building upon earlier important instruments developed by both UNIDROIT and UNCITRAL. The UNIDROIT Model Law is well positioned to improve access to credit for micro, small, and medium-sized enterprises involved in global supply chains, in the face of increasingly difficult international economic headwinds.
19 March 2024Remedies for victims of crypto fraud
In this article, Gretel Scott discusses the possible remedies and methods of enforcement for victims of crypto fraud.
19 March 2024Appropriation of financial collateral under English law security financial collateral arrangements
For nearly 20 years English law has permitted mortgagees and chargees of financial collateral to exercise a self-help remedy of appropriating charged collateral as a means of enforcing their security. The requirements include agreeing on the valuation of the collateral and conducting the valuation in a commercially reasonable manner. Since the implementing legislation is far wider than required by European law, the effectiveness of the remedy can be undermined by disputes as to what is commercially reasonable in particular factual contexts.
19 March 2024TARGET 2 – TARGET 2 Securities Consolidation: major change to payment standards
Readers may have seen reference in the media to the European Central Bank (ECB’s) T2-T2S Consolidation project from which it may have appeared to be simply a merging of two existing systems on the same technical platform currently being used by TARGET 2 Securities (T2S). However, it is far more wide-ranging and complex than may first appear and this article aims to put it in context of other developments both within and outside the euro area. This article is based on the latest information available at the time of writing but some of the content may be slightly out of date by the time it is published. However, after completion of drafting a senior ECB official stated that the possibility of a further delay beyond 20 March is considered to be extremely low.
19 March 2024Principal and main purpose tests in tax treaties: a UK tribunal approach
The recent decision in Burlington Loan Management DAC v HMRC shows the difficulty in determining when parties have a main purpose of obtaining the benefit of a double tax treaty and indeed, which parties’ purposes are relevant. Despite the fact that this case was determined on the basis of UK tax case law, it is likely that an international fiscal meaning of “principal purpose” will develop over time. The UK tribunal decision shows the complexity of assessing whose purposes are relevant and what, on the basis of the evidence, those purposes actually were. This raises important considerations for taxpayers determining whether treaty benefits are available.
19 March 2024Valuing swaps: what exactly are “hidden costs” and “mark-to-market”?
Calculating the value of an interest rate swap, or any financial security, has always been extremely important not just for market participants, but also in litigation. Several aspects of the analysis – such as mark-to-market (MTM) and hidden costs – have been highlighted in cases. This article explains the valuation method and its importance to litigation.
19 March 2024Cryptocurrency and the claim in debt
This article considers, briefly, whether a claim for payment in cryptocurrency can (arguably) be brought as a claim in debt. It also considers the implications of such a characterisation in two specific areas of insolvency law – petitions for bankruptcy, and whether a proof of debt based on a cryptocurrency payment obligation can benefit from the Insolvency (England and Wales) Rules 2016 (IR 2016) r 14.21, which values the claim in sterling by reference to the exchange rate at the commencement of insolvency. These issues are likely to interest lenders under crypto-loans (which we shall call “crypto-lenders”), insolvency practitioners, and others in the crypto space.
19 March 2024Syndicated lending and third-party agents: a practical primer
This article provides an overview of the commercial context for the use of third-party agents (TPAs) in syndicated lending and the important legal and documentation issues arising from having TPAs rather than traditional banks in that role.
19 March 2024
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