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Spacecraft financing: an international secured transactions regime for space assets
This article examines the present state of play in spacecraft financing, paying particular attention to the prospect of asset-based financing in the space sector. The article focuses on the Space Protocol of the Cape Town Convention, which is an international secured transactions law framework specifically for the space sector and examines how this can benefit the industry.
19 March 2024Warranties in corporate transactions involving tokens or blockchains: a proposal for a foundational approach
This article outlines a proposed approach to the risks and the protections that are specific to corporate transactions involving tokens or blockchains and proposes warranties designed to protect buyers.
19 March 2024Contributory negligence defences to claims against financial institutions
Statute law, common law and equity provide a variety of protections and remedies to customers of financial institutions. This article, though, examines the not uncommon situation where there is a legitimate sense that the customer may to some extent have been the author of his or her own misfortunes.
19 March 2024On the regulatory discretion to write off AT1 capital
In the wake of the receivership of Silicon Valley Bank and the Signature Bank failures, Swiss regulators brokered a deal to stabilise Credit Suisse (CS). The acquisition of CS by UBS was the first use of the tools designed to end too big to fail. The write off of CS’s AT1 capital highlights the discretion available to regulators to deviate from the hierarchy of claims when a bank is distressed.
19 March 2024Digital assets use cases in financial securities: are they “native”?
In this article, Ashurst calls for legislative intervention to facilitate a scaled solution enabling the issuance of “native” Distributed Ledger Technology (DLT)-underpinned financial securities under English law. They draw on the position in French law as an example of how conventional legal frameworks can evolve to accommodate the nuances of digital assets and DLT.
19 March 2024No point preventing fraud? Philipp v Barclays Bank
On Wednesday 12 July 2023, the Supreme Court handed down its unanimous judgment in Fiona Philipp v Barclays Bank UK Plc [2023] UKSC 25. The Supreme Court’s decision to reverse the Court of Appeal’s judgment in Philipp v Barclays Bank [2022] EWCA Civ 318 will cause consternation and concern to consumers, will be welcomed by banks in the short term, but leaves fraudsters as the big winners. This article analyses the judgment and provides commentary on its implications.
19 March 2024Synthetic risk, real issues: secondary transfers of credit risk instruments
There are many ways of synthetically transferring risk, including credit default swaps, sub-participations, financial guarantees and insurance related products. Each such method (the relevant contract/instrument being an “Instrument”) gives rise to unique considerations but there are several points that are likely to be relevant whenever the party that has synthetically acquired the risk wishes to transfer its position to a third party. This article considers those relevant issues.
19 March 2024Subrogation and the case of the dissolved co-debtor
The effect of the dissolution of a company, followed by disclaimer by the Crown of leasehold property which passed as bona vacantia, can give rise to difficult issues where the property has been used as security for payment of sums for which another person is also liable, whether jointly and severally or as a surety. This article explores the consideration of the relevant principles in Leon v Kensington Mortgage Company [2023] EWHC 121 (Ch) and offers some reflections on the decision and its implications.
19 March 2024Cross-border enforcement of judgments in the post-Brexit age: a glimmer of light on the horizon?
This article considers whether Hague 2019 represents an attractive additional international convention for UK commercial litigants in cross-border disputes. It assesses the benefits and potential downsides – and the extent to which the convention will reverse the effects of Brexit in the civil justice sphere.
19 March 2024The new FCA Consumer Duty: the interrelationship with common law contractual obligations
The new Consumer Duty is not actionable under s 138D Financial Services and Markets Act 2000. While some existing legislation affecting contracts address the concepts of fairness and good faith similar to those in the Duty, such legislation is of limited application. Might it be possible to use contractual obligations in order to give a right of action? The case law suggests that only the clearest language of incorporation would incorporate the rules underlying the Duty. The Duty will however inform the standards expected under the implied term of care and skill in contracts for financial services.
19 March 2024
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