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Boilerplate terms restricting freedoms in composite transactions: some traps for the unwary
Entire agreement and no oral modification clauses are designed to promote contractual certainty. But far from guaranteeing that result, their inclusion in transactions implemented by multiple contractual documents can increase the risk of injustice by restricting the availability and operation of rectification and estoppel, even where the contractual documentation does not accord with the parties’ mutual dealings. This article explores how those risks arise so that drafters may seek to mitigate them.
18 March 2024Wall Street-led secondary trading of private credit loans: considerations for stakeholders
In this article, the authors explore the new trend of Wall Street bank-led secondary trading in private credit and certain considerations for market participants involved.
18 March 2024The Mandatory Reimbursement Scheme: the obvious points of conflict within the proposals
Frauds may be unauthorised (credit card fraud, phishing, for example) or authorised. Authorised frauds may be “pull” frauds, where the fraudster is given the victim’s account details and authorised to pull the funds from their account, or “push” frauds (APP), where the victim instructs its bank to send money to the fraudster’s account.According to the Payment Services Regulator (PSR), £485.2m was lost to APP fraud in 2022 alone. Back in May 2022, HM Treasury announced its intention to legislate to allow the PSR to require victim reimbursement for APP scams. That legislation came into effect on 29 June 2023, when the Financial Services and Markets Bill received Royal Assent. This article considers the implications of the mandatory reimbursement scheme propounded by the PSR.
18 March 2024Moveable transactions: Scotland v England: Round 2 – taking security over chattels
Scottish moveable transactions law is currently outdated and much less useful in practice than the law in England and Wales.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 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 taking security over chattels.
18 March 2024Just a minute: inserting the time into pre-prepared board minutes
Pre-prepared board minutes are used in complex corporate transactions to ensure the proper steps are completed in the appropriate order. This article looks at cases in which the practice has been considered, and identifies some of the risks involved.
18 March 2024Identifying floating charges after Re Avanti Communications Ltd (in Administration)
This article discusses the decision in Re Avanti Communications Ltd (in Administration) and how the criteria laid down in the case affect the characterisation of charges over different types of assets as being either fixed or floating.
18 March 2024Dipping over here and dipping over there: lessons learned from recent double dip transactions
In this article the authors outline the basic elements of a double dip transaction with a look at recent case studies. They then provide a step-by-step covenant analysis with considerations for lenders and a European perspective.
18 March 2024Excess Cash Flow: time to sweep it under the carpet?
In this article the authors consider why and how Excess Cash Flow mechanics have become more diluted in recent years.
18 March 2024The fiduciary’s divestment dilemma: ESG and the age of climate change
In this article, Richard Hoyle considers a range of recent English cases which examine fiduciary duties relating to investment or divestment where fiduciaries were either motivated by, or, in contrast, downplayed ESG and climate change issues. In doing so he highlights the potential for fragmented outcomes when comparing different types of fiduciary relationship, including charitable trustees, pension trustees and directors, noting that for the time being, courts appear to be deferential to the approach which different fiduciaries choose to adopt to ESG and climate change issues.
18 March 2024DeFi platforms: delineating the regulatory perimeter
In this article the author considers how to delineate the regulatory perimeter in relation to DeFi platforms. He considers where the line is to be drawn between a platform that is essentially a CeFi platform that uses smart contract components to provide virtual asset services, and DeFi proper, where the originators of the set of smart contracts are merely developing and deploying software as a public utility.
18 March 2024
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