Feature

This article provides an overview of the commercial context for the use of third-party agents (TPAs) in syndicated lending and the important legal and documentation issues arising from having TPAs rather than traditional banks in that role.

This article considers, briefly, whether a claim for payment in cryptocurrency can (arguably) be brought as a claim in debt. It also considers the implications of such a characterisation in two specific areas of insolvency law – petitions for bankruptcy, and whether a proof of debt based on a cryptocurrency payment obligation can benefit from the Insolvency (England and Wales) Rules 2016 (IR 2016) r 14.21, which values the claim in sterling by reference to the exchange rate at the commencement of insolvency. These issues are likely to interest lenders under crypto-loans (which we shall call “crypto-lenders”), insolvency practitioners, and others in the crypto space.

In this article, David Milne KC considers the recent decisions in “unallowable purpose” cases, many of which have arisen in loan relationships, and explains why mere knowledge of the tax advantage by the directors of the taxpayer company should not of itself deny the tax relief.

The question of legal capacity to act in purported hedging transactions inherently assumes that all transactions are binary: either hedges or speculations. In this article, Hanif Virji explains how the reality is more complex – going beyond even a one-dimensional spectrum to a multi-dimensional one.

The effectiveness of restrictions on the assignment of contractual rights has been qualified by statute and potentially by the courts. In these circumstances, obligors may look to their remedies against assignors and assignees, which may include damages for breach of contract and for inducing breach of contract. Akhil Shah KC and Daniel Schwennicke of Fountain Court Chambers analyse the relevant legal principles and provide practical advice to secured lenders seeking to take assignments of contractual rights.

In this article the authors consider how a rated note feeder interacts with subscription-line facilities, in terms of security, enforcement, insolvency and subordination of debt repayments.

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.

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.

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.

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.