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When is a bank put on notice of an agent’s fraud?
By reference to previous authorities, this article discusses circumstances in which a bank might be held to be on inquiry or “put on notice” that an agent’s payment instruction to the bank is an attempt to defraud the bank’s customer.
18 March 2024Don’t put all your debt in one basket: debt incurrence flexibility in leveraged finance transactions
The era of cheap debt is over (at least for now). However, debt of course remains a key financing strategy for European companies. Sophisticated sponsors and borrowers are focused on ensuring maximum flexibility for debt incurrence under the terms of their facilities agreement – both to protect against a downside scenario and to ensure sufficient capacity to meet the requirements of their business plans. This article outlines what those flexibilities currently look like in market documents and where they are heading, with a close focus on the institutional term loan market.
18 March 2024Change is the only constant: how to avoid static regulation in the age of AI and other emerging technologies
In this article Wojtek Buczynski considers different approaches to the regulation of artificial intelligence (AI) to ensure it remains future-proof and relevant in the age of continuous technological change.
18 March 2024Avanti Communications and the use of textbook and articles when undertaking research
This article considers the recent case of Avanti Communications in which the judge disagreed with one part of the analysis of the fixed charge/floating charge characterisation issue in two practitioner textbooks and in one academic article.
18 March 2024Unlocking the predictive power of AI in the investment management industry
Artificial intelligence (AI) typically “learns” through data points that are fed into its system. Firms using AI-powered tools in the provision of financial services will need to navigate the risks of using such technology, including ensuring there is data integrity to mitigate against the risk of embedded biases within the system’s decision-making process. Transparency and explainability are key to ensuring the decision-making processes of the AI technology can be clearly articulated to clients and regulators. This article considers the regulatory implications of relying on AI in financial services by considering the example of investment advice or portfolio management.
18 March 2024Hague 2019: extending the lifespan of asymmetric jurisdiction clauses?
In this article Sarah Garvey seeks to assess the potential opportunities and risks for finance parties on the UK’s accession to Hague 2019 and whether finance parties are likely to adapt their approach to drafting dispute resolution clauses as a result. The article also provides a high-level overview of key features of Hague 2019 and highlights areas for future dispute and debate.
18 March 2024The need for a modernised response to financial product regulation
In this article, the authors consider recent federal court decisions that have addressed how two evolving financial products and markets – namely syndicated loans and crypto tokens – should be classified in the US regulatory system. They then highlight the need for policy-oriented reforms to address the current uncertainty.
18 March 2024Risk retention in securitisations: if not the original lender, who else?
It is almost 15 years since the EU’s risk retention (skin-in-the-game) rules were developed in response to concerns that interests of investors in securitisations and their originators were insufficiently aligned. In that time, the market has developed a number of solutions to adhere to the rules in situations where there may no longer be a substantial entity that was involved in the creation of the underlying exposures to perform the risk retention function.
18 March 2024An 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 2024
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