Feature

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.

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.

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.

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.

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.

In this article the authors discuss two key conclusions and recommendations from the Law Commission’s final Report on Digital Assets.

This article focusses on the regulatory capital and resolution regime for non-systemic deposit-takers in the UK (for ease, small banks) and potential changes after the resolution of Silicon Valley Bank UK Limited (SVB UK).¹ The failure of SVB UK came at an interesting time for prudential regulation of smaller banks as the PRA has been considering the creation of a tailored and proportionate regime. This article considers whether the failure of SVB UK might prompt changes to the PRA’s thinking including making liquidity and concentration risk rules more stringent for banks of all sizes.

In this article, Professor Peter Watts KC analyses and critiques the decision of the UK Supreme Court in BTI 2014 LLC v Sequana SA [2022] UKSC 25 (Sequana). This decision confirmed that the directors’ duty to promote the success of their company extends to requiring some consideration of the interests of the general body of the company’s creditors after, but not before, the company becomes insolvent or imminently insolvent. Once a company’s insolvent liquidation or administration becomes inevitable, the interests of creditors become the exclusive focus of the duty of loyalty.

The UK’s bank ring-fencing regime puts barriers in the way of mergers and acquisitions by ring-fenced bodies. The government has recently evidenced its intention to relax these, both as part of its review of the regime generally and, during times of crisis, for specific acquisitions. This article outlines the concessions already provided for in the ring-fencing regime and highlights the remaining challenges, particularly for acquirers which are already subject to the ring-fencing regime. (This article does not seek to examine the policy arguments for and against the ring-fencing regime, which have been examined as part of the Ring-fencing and Proprietary Trading Panel Report (referred to as the Skeoch Report) and which are subject to further consideration under a government consultation which is open for response at the time of writing.)

Given the huge losses suffered by Additional Tier 1 bondholders, it is unsurprising that lawyers are exploring various potential avenues for investors to obtain redress. This article focuses on investment treaty claims. In the authors’ view, such claims provide a potentially attractive route for investors to recover losses.