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The 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 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 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 2024Excess Cash Flow: time to sweep it under the carpet?
In this article the authors consider why and how Excess Cash Flow mechanics have become more diluted in recent years.
18 March 2024English law-governed Keepwell Deeds enforced by Hong Kong courts against PRC insolvent companies
In this article Thomas Wong considers two recent judgments of the Hong Kong Court of First Instance on the enforcement of Keepwell Deeds.
18 March 2024Carillion: a director’s strict duty to know the company’s true financial position?
The Secretary of State recently argued in high profile disqualification proceedings that directors owe a freestanding, strict legal duty to know a company’s true financial position at all times while holding the office of director. This article argues that this position is clearly wrong as a matter of law, would be inconsistent with the directors’ duties in the Companies Act 2006, and would be fundamentally impractical and impossible to comply with.
18 March 2024Change is the only constant: how to avoid static regulation in the age of AI and other emerging technologies
In this article Wojtek Buczynski considers different approaches to the regulation of artificial intelligence (AI) to ensure it remains future-proof and relevant in the age of continuous technological change.
18 March 2024Don’t put all your debt in one basket: debt incurrence flexibility in leveraged finance transactions
The era of cheap debt is over (at least for now). However, debt of course remains a key financing strategy for European companies. Sophisticated sponsors and borrowers are focused on ensuring maximum flexibility for debt incurrence under the terms of their facilities agreement – both to protect against a downside scenario and to ensure sufficient capacity to meet the requirements of their business plans. This article outlines what those flexibilities currently look like in market documents and where they are heading, with a close focus on the institutional term loan market.
18 March 2024Avanti Communications and the use of textbook and articles when undertaking research
This article considers the recent case of Avanti Communications in which the judge disagreed with one part of the analysis of the fixed charge/floating charge characterisation issue in two practitioner textbooks and in one academic article.
18 March 2024The Electronic Trade Documents Act 2023: the key to the future?
Innovation is evidence of how trade and trade finance are developing in the international markets with the use of electronic platforms and technology which is constantly changing and improving. Internationally, the law, generally, has been trailing behind commerce and applications for trade. The coming into force of the Electronic Trade Documents Act 2023 (the Act) on 20 September 2023 is the key to legal recognition for certain electronic trade documents under English law. The Act, which is a very short piece of legislation, gives certain documents used in trade and trade finance the same legal status and protection as the equivalent documents in paper form. This article looks at some areas of the Act and the effect of the Act in the context of trade and trade finance.
18 March 2024
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