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An assessment of the reliability requirement in the Electronic Trade Documents Act
On 20 September 2023 the Electronic Trade Documents Act (ETDA) came into force. Formerly, in English law, document possession usually required physical possession. Now, the ETDA allows for “electronic trade documents” to be treated as equivalent to traditional “paper trade documents”, if they meet certain “gateway” criteria underpinned by a “reliable system”. In this article, we consider how the English courts are likely to approach interpretating this reliability requirement. Would any flaw in the system, no matter how short-lived and abnormal, render it unreliable? Or would a more detailed systemic analysis be needed? If so, what would that look like?
18 March 2024“Trust, not distrust”: can Quincecare apply to cryptocurrency transactions on exchanges?
The duty in Quincecare can prove a difficult principle to apply in practice. In the current age of cryptocurrency fraud and the open question of the scope of an exchange’s liability, is now an appropriate time to extend duties found in banking law to the activities of an exchange, or is that taking matters too far?
18 March 2024What is in a name? The regulators seek to have the final word on the meaning of trading venue under MiFID
For the EU’s and UK’s securities and markets regulators nothing is in the name nor in the technology used when it comes to the need for a trading venue licence. Yet, noting some uncertainty around the application of key concepts to certain facilities, each regulator has sought to provide clarity for their respective markets via recently published guidance.
18 March 2024In sync across borders: embracing parallel processes for successful restructurings
This article examines the legal and commercial rationale behind the adoption of parallel restructuring processes, focusing on recent precedents in England and Hong Kong. It then considers criticisms of parallel proceedings, and whether and when alternative mechanisms may achieve comparable results.
18 March 2024Assignment (or novation) of indemnity policies?
In this article Dr Chee Ho Tham suggests that terminological confusion has arisen over the use of the phrase “assignment” in connection with policies of non-marine indemnity insurance, where the “assignment” is made before the occurrence of the insured event which causes loss or damage to the subject-matter of the policy. An “assignment” of the contract of insurance entails a novation and should be referred to as such.
18 March 2024The Digital Securities Sandbox
The author considers the UK’s proposed sandbox for financial market infrastructures.
18 March 2024Banking regulation in the aftermath of SVB: lessons for regulators and supervisors
The collapse of Silicon Valley Bank (SVB) is not evidence of the failure of Basel III since certain capital and liquidity requirements were disapplied in respect of SVB under US law. Regulators should reconsider which banks are “non-systemic” and which deposits are “stable” in the age of social media and mobile banking and supervisory practices should be scrutinised. In the UK, the SVB collapse comes at a time at which the UK Prudential Regulation Authority (PRA) is looking at the reform of certain prudential requirements for small banks under its proposals for a “strong and simple framework”. The lessons from SVB may lead to a change in the PRA’s approach. This article focusses on UK banking regulation and supervision and considers potential capital and liquidity reforms in the aftermath of the failure of SVB and its UK arm, SVB UK Limited (SVB UK).
18 March 2024The risks of attempting to rectify mistakes in security documents, without seeking a court order
Where mistakes occur in security documents, practitioners usually have to assess whether they should be rectified by the court, or whether rectification by the parties alone is sufficient (eg in a Deed of Rectification (DoR)). This can create particular headaches if the mistake is spotted after registration; and the consequences may also depend on the nature of the mistake. For example, if the DoR arguably creates a new security (such as by correcting a mistake in the definition of the liabilities secured), this may cause problems where the simple correction of addresses or other typographical errors might not. This article considers the law relating to rectification of such documents, and some of the practical implications of dealing with rectification whether through the courts or simply between the parties to the security.
18 March 2024The new UK public offers and admission to trading regime: impact on debt capital markets
This article considers key concepts in the Public Offers and Admissions to Trading Regulations 2024 (UK SI) – notably, the new public offer prohibition and extension of scope to non-transferable securities. It also flags prospectus disclosure considerations, either in the UK SI itself or due to be covered in the forthcoming FCA consultation.
18 March 2024The rise of “hybrids” in the ever-converging PIK and Preferred Equity landscape
In this article the authors consider the key structural, economic and documentary differences between Holdco payment in kind and preferred equity shares and consider recent demand for new hybrid instruments.
18 March 2024
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