Feature

Blue pill or red pill? Into the Tulip Trading rabbit hole

Lessons from the SVB collapse for banking regulation

In this article Avinash Persaud considers the more immediate and the lasting lessons from the recent bank crisis.

Toto’s law: looking behind ESG rating agency curtains

In this article, Dan Harris tests the provisional regulatory response to the risks, particularly bias, presented by ESG ratings providers when they repackage information scraped off the internet and elevate its status into a “score”. He suggests an industry form of comfort letter for incorporation into contracts between ESG ratings providers and investment managers.

Cryptoassets as property under English law Pt II: ownership, situs and the circular question of jurisdiction

Judgment was recently handed down by the Court of Appeal in Tulip Trading Limited v Bitcoin Association For BSV & Ors [2023] EWCA Civ 83. This article focuses on two issues arising from the basis upon which Tulip Trading Limited’s case and the issue of jurisdiction proceeded in the Court of Appeal: (i) who is the “true owner” of the bitcoin; and (ii) the circular nature of founding jurisdiction.

Project bonds and energy transition: a proven financing solution

The stricter monitoring/disclosure and liquidity requirements faced by banks in the wake of the global financial crisis mean that projects can often no longer be funded by traditional bank debt alone. The debt capital markets have stepped up to the challenge and project bonds are on the rise, particularly amidst the green finance boom. Whilst the specific challenges that project bonds pose when used in a project financing arrangement are complex, they are by no means insurmountable and with the help of experienced professionals, project bond financings can be structured in a way that offers a viable alternative solution.

Taking security over certificated shares in private companies

The article discusses the correct characterisation of the transfer of the share certificate and a blank stock transfer form to the lender where the latter takes an equitable security interest over the shares. It discusses differences in practical treatment where the share certificate is electronic or digital in form.

Unknown unknowns: the worldwide development of the Worldwide Freezing Order against persons unknown

The Worldwide Freezing Order has undergone a significant new development in recent years, as the courts have sought to adapt the powerful interim remedy to cases of internet fraud by, for the first time, making such orders against persons unknown. This article surveys together the published decisions to date in England and elsewhere in the common law world and suggests that while this development is here to stay, uncertainty remains about its application and scope, particularly how the unknown persons subject to it should be described.

English law in the 21st century: does it need an update to accommodate crypto?

The recent Law Commission Digital Assets Consultation Paper proposes the creation of a third category of personal property under English law. The article focuses on identifying some of the practical consequences of this proposal from a financial services perspective. This is achieved by summarising some of the main points made in the consultation and considering the potential impact for the use of English law.

Transferring legal title to a digital asset

In this article, Hin Liu considers what should be required to transfer legal title to a digital asset. He argues that the requirement should be a “change of control” coupled with an intention to transfer title, and that it would be inappropriate to require an “on-chain transfer”.

Bind to law: Soulbound tokens and property law

Soulbound tokens (SBTs) are a novel type of crypto-token. They are not intended to be treated as liquid, transferable items, but instead as verifiable and non-alienable repositories of provenance-secure information related to specific people. SBTs are intended to be non-transferable – but because of the technological medium within which they are created, they are generally transferable as a matter of fact. This article considers whether it is justifiable to treat this type of token as an object of property rights. It suggests that property law could help to achieve what technical design alone cannot – the non-transferability of SBTs. While the ability to transfer the token might remain as a matter of fact, SBTs might achieve non-transferability as a matter of law, through the application of property law concepts such as relativity of title and the bona fide purchaser rule.