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Edinburgh Reforms: does the Senior Managers and Certification Regime need changing?
In this article, the authors evaluate the successes and failures of the Senior Managers and Certification Regime (SMCR) and consider whether the Edinburgh Reforms are likely to result in radical change.
19 March 2024Erroneous payments in syndicated loans: the future of the “Revlon blockers”
Even though the Second Circuit has restored a sense of calm by ordering the lenders to return mistaken payments to Citibank in the infamous Revlon case, the Revlon blocker is here to stay. This article will examine its various permutations and will propose suggestions on how parties may wish to fine tune their Revlon blockers in light of the Second Circuit’s emphasis on the role of constructive knowledge in dismissing the “discharge for value” defence.
19 March 2024An account of profits: when if ever in commercial banking claims?
In this article, Ian Bergson considers the question when, if ever, an account of profits will be ordered in a commercial banking claim, in light of the recent Commercial Court decision in ECU Group plc v HSBC Bank plc [2021] EWHC 2875 (Comm).
19 March 2024Reforming corporate criminal liability: a missed opportunity to modernise the law
In June 2022 the Law Commission presented the government with ten options for reforming the law of corporate criminal liability, with specific focus on economic crime. In this article we address what we consider to be the key weakness in the Commission’s approach, together with those options which are most likely to provide coherent alternatives, or at least sensible improvements, to the current law. While we take the view that the Law Commission missed the opportunity to reject the identification doctrine altogether as both anachronistic and inherently unsuited to establishing culpability in modern corporate contexts, we welcome the proposed increased emphasis on “failure to prevent” models of liability and the recognition that an administrative system for the imposition of monetary penalties can provide valuable additional means of redress.
19 March 2024Crypto fraud and the bona fide purchaser for value defence
In this article Helen Pugh considers the bona fide purchaser for value defences at common law and in equity and their application to crypto transactions tainted by fraud.
19 March 2024Giving notice under an ISDA: lessons learned and potential new approaches
All references to the ISDA Master Agreements in this article apply to both the 2002 ISDA Master Agreement and the 1992 ISDA Master Agreement unless otherwise specified.
19 March 2024Staking services in insolvency: problems of certainty and predictability
Centralised platforms offer their customers a range of services, a relatively newer one being staking services. In the event of the insolvency of the platform, a fundamental question is how the assets received by the platform for staking purposes will be treated. Will they be part of the insolvency estate, or will they be returned to the customers? This will depend on the legal characterisation of the relationship between the platform and its customers. This article looks at this issue from a functional perspective and argues that the operational practices of the staking platform, fee structures and the level of discretion of the platform should play an important role in the analysis.
19 March 2024The growing emergence of competitive tension in the liquidity market
In the current climate, borrowers are more likely to encounter liquidity issues rather than covenant breaches and are increasingly turning to private credit for time-sensitive cash injections, primarily due to the flexibility private credit providers offer. As these new creditors enter the debt stack, conflicts between them and existing creditors may well emerge. Sponsor-backed borrowers are increasingly deploying tactics popularised in the US to prime existing lenders who fail to follow their money. However, the need for new money to have super-seniority, to benefit from downside protection and obtain access to upside recoveries requires creative structuring.
19 March 2024Board minutes after Sequana: practical advice for the corporate drafter
In this article, in light of the decision in BTI 2014 LLC v Sequana SA [2022] UKSC 25, Philip Morrison seeks to offer practical advice, including which considerations should be included, when drafting board minutes.
19 March 2024ESG integration in private debt
In this article, the authors consider specific issues pertinent to ESG integration in private debt funds, including the size of the private debt borrowers and the need to respond both at fund level and in the form of the loan products.
19 March 2024
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