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Damages for the damnified? What DOES Law of Property Act s 104(2) mean?
Section 104(2) is frequently used to ease the conveyancing process when a mortgagee sells the security: it enables the mortgagee to pass good title to a purchaser even if the exercise of its power of sale is unauthorised, improper or irregular. The corollary of that power, the obligation to pay damages if a wrongful sale occurs, has, until recently, received little attention. This article highlights two recent cases, explains what we can learn from them, and sets out some thoughts on the remaining unanswered questions arising out of this provision.
18 March 2024A company’s objects: do they still matter?
In this article the authors consider why a company’s objects continue to be relevant despite recent legislative developments and the implications of s 31(2)(c) and s 31(3) Companies Act 2006 should a counterparty proceed with a contract outside the company’s objects before registration of a notice of amendment of the company’s objects.
18 March 2024Moveable transactions: Scotland v England: Round 1 – assigning receivables
Scottish moveable transactions law is currently outdated and much less useful in practice than the law in England and Wales. The Moveable Transactions (Scotland) Act 2023 (2023 Act) will bring Scots law up to date when it comes into force and will arguably move it ahead of the law south of the border. This article tests whether or not that is the case when assigning receivables.
18 March 2024ESG litigation in the context of financial services: a global gear change?
This article examines the way that ESG-related cases in the context of financial services have evolved over the past few years, and the themes emerging from the high number of court dismissals during 2023, which indicates that legal merits continue to be the prevalent factor.
18 March 2024Regulation 7(4): when is an entity “controlled” by a sanctioned person?
In this article Tom Leary explains the key decisions in the Mints litigation on issues of “control”, why the Court of Appeal’s approach to Reg 7(4) of the Russia (Sanctions) (EU Exit) Regulations 2019 is unsurprising given the genesis of its drafting, and the practical implications for practitioners.
18 March 2024Limited liability partnerships: authority to borrow and to give security
This article addresses two related practical issues which arise in acquisitions, restructurings and financing transactions where a limited liability partnership (LLP) is involved in the group structure. The first is the authority needed by a lender where an LLP is giving a guarantee of group companies’ liabilities and/or granting security. The second is the related point about charging the interests of a member in an LLP.
18 March 2024Significant Risk Transfer’s impact on the output floor under Basel III: the EU’s proposed panacea unveiled
The European Banking Authority, in its Basel III full implementation impact report11 found that European banks’ Tier 1 capital requirements would increase by 15% as a 1result of Basel III changes, with the proposals for an output floor being responsible for a 7.1% overall rise. In this article, the authors consider how significant risk transfer (SRT) transactions can be used to decrease a bank’s risk weighted assets (RWAs) in order to minimise their capital burden in light of increased capital requirements as a result of the output floor. Other capital requirements specific to securitisations are also considered.1 1
18 March 2024Foreign crypto arbitrations and UK consumer rights: a culture clash?
In this article, Lara Kuehl discusses the enforceability of arbitration agreements which provide for foreign (non-UK) seated arbitration and foreign governing laws, commonly found in the terms of service of crypto exchanges and platforms, in contracts with UK consumers.
18 March 2024For whom the code tolls: an integrated, modular architecture for smart derivatives contracts
In this article, we dissect the complex interplay between law and technology in the derivatives market and describe an approach for developing modular, smart contracts. We draw parallels between legal prose and programming, advocating for a formalised approach to contract drafting that accommodates smart contract technology. The Common Domain Model is identified as a pivotal tool, providing a standardised representation of contractual terms that ensures clarity and consistency across the industry. Using this standard framework, we demonstrate how to embed traditional contracts within a modular, composable smart contract architecture.
18 March 2024Shared appreciation mortgages: how far can the “unfair relationships” regime stretch?
A trial of alleged mis-selling of shared appreciation mortgages (SAMs) by Bank of Scotland plc (BoS) is listed for early 2024. In this article Benjamin Pilling KC and Ruth Bala of 4 Pump Court review the issues in the case. Does the “excessive” finance charge generate an “unfair relationship”? Will the court be willing to use the “unfair relationship” provisions to rewrite a mortgage, where there was full disclosure upon inception of the level of the finance charge (c.f. PPI, where the high level of commission was undisclosed)? The authors also consider limitation.
18 March 2024
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