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Guardrails on contractual discretions: navigating the content and consequences of the Braganza constraint
Contractual discretions and absolute rights are conventionally distinguished, with rationality constraints applying only to the former. The better analysis is that these concepts exist on a spectrum rather than as distinct categories. The trend in recent cases is increasingly in favour of implying rationality constraints but tailoring their scope depending on where the decision falls on this spectrum. The issue of relief remains underexamined in the case-law. It remains unclear which types of Braganza breaches result in nullity and what effect nullifying a decision produces. These issues will likely generate future disputes.
08 February 2026Do divergent terms across European leveraged finance documentation really create misunderstanding, mischief and mayhem?
In this article the author considers the variations in the terms of key covenants within the same debtor groups, particularly in multi-tiered debt capital structures (involving Super Senior RCF, Senior Term Debt, Mezzanine and High Yield Bonds) in the European leveraged finance market, how this is playing out at different points of the credit cycle, and if there may be a way in which the market can more cohesively address/reconcile these differences.
08 February 2026The “digital” answer is always netting …
The co-architect of the design and drafting of the modern form of master trading agreements, such as the Global Master Securities Lending Agreement (GMSLA), Global Master Repurchase Agreement (GMRA) and ISDA Master Agreement, Jeffrey Golden KC (Hon), once stated that "the answer is always netting". The continuing force of the statement lies in netting's central role in both counterparty credit risk mitigation and financial stability. However, the effectiveness and enforceability of netting under these master trading agreements have come to depend on legal opinions intended to confirm enforceability.
Yet, 40 years after the capital markets industry started to utilise these legal opinions for this purpose, very little has changed in how they are produced or operationalised. Legal opinion practice in the financial markets has not kept pace with the complexity of modern trading relationships, evolving regulatory requirements, or the increasing role of technology and the digital agenda. Prudential regulators and supervisory bodies, including the Federal Reserve, the Prudential Regulation Authority, the European Central Bank and the Australian Prudential Regulation Authority, have responded with enforcement action where supervised firms have taken regulatory capital relief without adequate processes, systems and controls in place. The answer remains netting, but it starts with a more digital and data-driven approach to counterparty due diligence, anchored in the Legal Entity Identifier (LEI). This article explains why the LEI is essential to ensuring that netting remains the ultimate solution.
Unlocking the potential: why the EU needs a dedicated securitisation special purpose entity
This article proposes the creation of a single pan-EU legal framework for the establishment and operation of EUSSPEs to facilitate pan-EU securitisations, with EUSSPEs incorporated under EU law, pursuant to a supranational framework above the 27 member state legal systems.
08 February 2026Low or maximum security? Navigating the risks in taking security over AI-generated materials
This article explores the legal and commercial risks for lenders and investors taking security over assets consisting of, or containing, Artificial Intelligence and Large Language Model generated materials. In light of those risks, this article considers practical steps that lenders and investors may wish to consider taking in order to mitigate those risks where possible.
08 February 2026Security over e-money: the form of security and blocking
Electronic money (e-money) is now a familiar part of the corporate financing world and it is now common to see corporates wanting to use their e-money as collateral on a range of financing transactions. In this article, we examine the key legal and practical aspects of structuring English law security over e-money, in particular whether the statutory right to redemption impacts the ability for a secured party to have effective control over e-money. This article reflects the current English law on e-money. Changes to the safeguarding regime (applicable to e-money issuers in the UK), which may alter the status of funds held for e-money-holders, are envisaged but are not yet in place. This article considers some provisions of legislation at the EU level, since the Electronic Money Regulations 2011 entered into law based on EU directives (prior to Brexit).
08 February 2026Are claims worth over £3bn out of time under the FCA’s proposed motor finance redress scheme?
In its proposed rules for a consumer redress scheme, the Financial Conduct Authority has assumed that few claims will be time-barred on the basis that s 32(1)(b) Limitation Act 1980 (deliberate concealment) will be engaged. In this article, Matthew Parker KC considers the further question of when under that provision the consumer could with reasonable diligence have discovered the relevant facts and the factual issues to which it gives rise.
10 January 2026The face value requirement for deeds in s 1(2)(a) of the Law of Property (Miscellaneous Provisions) Act 1989
This article reproduces the note prepared by The City of London Law Society Financial Law Committee and dated 27 November 20251 on the face value requirement for deeds in s 1(2)(a) of the Law of Property (Miscellaneous Provisions) Act 1989.
10 January 2026Progress through simplification: an opportunity to modernise the UK securitisation special purpose entity framework
This article proposes making certain targeted changes to UK law to facilitate securitisations using UK securitisation special purpose entities (SSPEs) by simplifying the legal framework in which they operate, including in some cases removing obsolete provisions from more than a century ago.
10 January 2026Simplification, not deregulation: reframing financial regulation in the UK and the EU
The key argument of this article is that simplification and proportionate regulation can enhance legitimacy and clarity in financial regulation.
10 January 2026
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