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Moveable 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Scottish moveable transactions law is currently outdated and much less useful in practice than the law in England and Wales.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 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 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 2024When is a bank put on notice of an agent’s fraud?
By reference to previous authorities, this article discusses circumstances in which a bank might be held to be on inquiry or “put on notice” that an agent’s payment instruction to the bank is an attempt to defraud the bank’s customer.
18 March 2024ESG litigation in the context of financial services: a global gear change?
This article examines the way that ESG-related cases in the context of financial services have evolved over the past few years, and the themes emerging from the high number of court dismissals during 2023, which indicates that legal merits continue to be the prevalent factor.
18 March 2024Regulation 7(4): when is an entity “controlled” by a sanctioned person?
In this article Tom Leary explains the key decisions in the Mints litigation on issues of “control”, why the Court of Appeal’s approach to Reg 7(4) of the Russia (Sanctions) (EU Exit) Regulations 2019 is unsurprising given the genesis of its drafting, and the practical implications for practitioners.
18 March 2024Limited liability partnerships: authority to borrow and to give security
This article addresses two related practical issues which arise in acquisitions, restructurings and financing transactions where a limited liability partnership (LLP) is involved in the group structure. The first is the authority needed by a lender where an LLP is giving a guarantee of group companies’ liabilities and/or granting security. The second is the related point about charging the interests of a member in an LLP.
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 2024
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