Feature

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.

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.

In this article the authors consider the current state of the initial public offering (IPO) market – including why a company might choose to seek an IPO – and look at the potential impact of an IPO on a company’s facility agreement. They explain how IPOs are typically regulated in corporate facility agreements and explore the mechanisms that sponsor-backed companies and their lenders often employ to automatically modify the terms of a leveraged financing so that it remains suitable for a publicly traded company post-IPO.

In this article the authors consider the issues with which the courts will need to grapple when they come to decide how damages under ss 90 and 90A are to be calculated.

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.

This article introduces the Regulatory Genome Project (RGP) at the University of Cambridge, a pioneer research project aiming to create an information structure facilitating the use of artificial intelligence (AI) and machine learning within the context of financial regulations. This structure, when adopted, will pave the way for further enhancements to applications in Regulatory Technology (RegTech), Supervisory Technology (SupTech) and the adoption of machine-readable rulebooks; all with tangible benefits to the entire financial system.

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.

Soon it will be possible to grant a statutory pledge over Scottish moveable property under the Moveable Transactions (Scotland) Act 2023. Companies and other incorporated bodies will be able to pledge their assets, but s 46 of the new Act restricts individuals and unincorporated organisations from doing so unless acting as a sole trader, a charity trustee or a member of a club or society. This article considers the restrictions that apply under s 46 including the practical issues that arise for lenders when deciding whether to take a statutory pledge from an individual or unincorporated organisation.

At the time of writing, the EU legislators are expected to adopt amendments to the EU Capital Requirements Directive (CRD6)¹1 in Q2 2024, imposing new restrictions on the ability of non-EU banks and other non-EU entities to provide “core banking services” in the EU from autumn 2026. This article considers how this will change the EU banking landscape and what firms need to do to prepare. 1

Section 104(2) is frequently used to ease the conveyancing process when a mortgagee sells the security: it enables the mortgagee to pass good title to a purchaser even if the exercise of its power of sale is unauthorised, improper or irregular. The corollary of that power, the obligation to pay damages if a wrongful sale occurs, has, until recently, received little attention. This article highlights two recent cases, explains what we can learn from them, and sets out some thoughts on the remaining unanswered questions arising out of this provision.