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Byers v Saudi National Bank: bona fide purchase, knowing receipt and crypto litigation
In this article Nik Yeo looks at how the Supreme Court’s decision in Byers has clarified important differences between the bona fide purchase defence to an equitable proprietary claim and the distinct personal claim for knowing receipt, particularly relevant in litigation against recipients of cryptoassets.
18 March 2024Galapagos: proper construction of Distressed Disposal provisions in intercreditor agreement
In this article the authors consider the recent English High Court judgment in Galapagos v Kebekus [2023] EWHC 1931 (Ch) which turned on the proper interpretation of Distressed Disposal provisions in an English law intercreditor agreement (ICA), typical in European leveraged financing transactions.
18 March 2024Undisclosed agency: characterisation and conflict of laws
The uncertainty surrounding the conceptual basis of undisclosed agency is, in many senses, an academic problem.1 1 However, this uncertainty is not 1 entirely1 academic, and can pose practical challenges in a conflict of laws context. This article explores several private law explanatory theories for undisclosed agency: contract, tort and unjust enrichment. Once each theory is subject to a conflict of laws analysis, it will be observed that a single fact pattern, when analysed through the three lenses, gives rise to three different applicable laws. This divergence risks unwanted legal uncertainty in international transactions structured to incorporate undisclosed agency relations.1
18 March 2024Enforcing security over limited partner interests in English limited partnerships
In this article the authors look to analyse and explore some of the key issues for lenders when taking and enforcing security over a limited partner interest in an English limited partnership, limiting their analysis to matters arising under English law.
18 March 2024Boilerplate 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 2024The impact of the Electronic Trade Documents Act 2023 on bank practice in trade finance
In this article the author considers the extent to which the innovations introduced by the Electronic Trade Documents Act 2023 may impact on practices in the trade finance arena.
18 March 2024“Packing” a punch to litigation funders?
In this article Charlotte Eborall considers the outcome and implications for funders in the recent Supreme Court decision of PACCAR and ors v Competition Appeal Tribunal and Ors [2023] UKSC 28.
18 March 2024The key to harnessing the ownership power of NFTs: the need for standardised decentralisation protocols
NFT technology first raised interest because it offered potential to restore full ownership to digital property, which has been restricted in the centralised paradigm since the birth of the internet. However, in the current highly fragmented NFT ecosystem, we need robust standardised protocol systems that guarantee full decentralisation of the token and the underlying asset to consistently deliver on the original NFT promise of full ownership and control. Most NFT projects fail to do this – the underlying asset is not sufficiently decentralised and thus remains vulnerable to manipulation by the centralised issuer, which has damaged application, interoperability, and general consumer interest. In the dot-com era, establishing the PCI DSS security protocol to hold payment providers such as PayPal to high standards of consumer protection revived trust in online commerce that was originally rampant with fraud. Similarly, a flagship decentralisation protocol that requires NFTs to ensure that full ownership and control of the underlying asset passes with a sale will lower information costs for the consumer and increase the opportunity to scale applications of NFTs to high impact use cases beyond cartoon apes.
18 March 2024Private credit continuation funds: a developing frontier for secondary transactions?
In this article, the authors consider the use of continuation funds in private credit by comparing and contrasting their adoption with increasingly popular private equity continuation fund transactions.
18 March 2024Third party rights and the LMA suite of Debt Documents
The author considers a number of third party rights and protections conferred by Loan Documents with importance in the market, including “Increased Costs” rights and indemnities granted to Receivers, Delegates and others. While “Increased Costs” rights simply give parties to the Debt Documents a right to claim losses suffered by others and are not actionable by third parties, indemnities are. Indemnities are unaffected by the “overriding” clause in Loan Market Association (LMA)-style Intercreditor Agreements. This is commercially important for lenders, security agents and receivers alike.
18 March 2024
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