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When code meets compliance: the institutional turn in Decentralised Finance
In this article, the authors consider whether DeFi can maintain its open, disintermediated ethos while integrating with compliance frameworks.
08 February 2026The fraught identification of the wealthy investor as a “consumer” and/or “professional”
In this article, Ben Smiley and Helena Spector examine recent case law concerning the frequently thorny question of whether those who make high-value, sophisticated personal investments are “consumers” and/or are “professional clients” for the purposes of different legislation such as the Consumer Rights Act 2015 and the FCA Handbook, and thus are entitled to the protections therein. The contest over these protections for high-value investors is likely to continue.
08 February 2026Supply chain finance in the EU: Part 2 – fixing enforceability: conflicts of law, true sale and an interoperable e‑notice regime
Cross-border supply chain finance (SCF) in the EU is critically vulnerable to legal uncertainty, primarily due to divergent member state rules governing receivable assignments, debtor defences, set-off and “true sale” characterisation. This fragmentation hinders enforceability, reduces advance rates (the amount of the loan advanced) and complicates recoveries, thereby exposing a significant structural gap within the Single Market. This article outlines a practical legal blueprint for a targeted EU SCF Regulation designed to address these challenges comprehensively. The proposed framework includes a clear conflicts-of-law rule for third-party effects and priority, calibrated debtor-defence and set-off treatment and objective safe-harbour criteria for true sale. Furthermore, it details an interoperable electronic notice (e-notice) regime crucial for establishing opposability (when the debtor becomes officially aware of the new arrangement), fixing priority and preventing double-pledging across the EU. This harmonised approach promises to transform the current fragmented landscape into a predictable and enforceable cross-border market, fostering greater resilience, efficiency and liquidity in EU SCF operations.
08 February 2026Credit Suisse v Ivanishvili: the door opens to fraud-on-the-market claims under s 90A FSMA
This article considers the effect of the Privy Council’s decision in Ivanishvili on claims under s 90A Financial Services and Markets Act 2000. It argues that Ivanishvili opens the door to claims based on the “fraud on the market” theory: it is now clear that a claimant need not prove it was consciously aware of misleading representations or dishonest omissions to establish reliance. However, the decision also acknowledges the difficulties which arise with respect to ambiguous representations. Cases brought under s 90A in which statements made in published information leave room for more than one meaning may still face difficulties, given the requirement to prove that an ambiguous representation was understood in the sense in which it is said to be false. What may matter in resolving these difficulties is the sense in which the defendant intended its published information to be understood. This, along with the prevailing norms and expectations in markets, is likely to remain an evidential battleground.
08 February 2026The growth of private credit in the UK: the “new” threat to financial stability
This article looks at some of the vulnerabilities that emerge from the growth of private credit, particularly in light of the systemic stability concerns that have been raised by the Bank of England in the UK, and other policymakers globally. It provides an understanding of the shift of key intermediation activities from banks to non-banks, the causes of this trend, and the challenges it poses to regulators. This article argues that the growth of private credit today has its roots in pre-2008 shadow banking, and it is ill-suited to address questions of access to finance for the real economy.
08 February 2026Guardrails on contractual discretions: navigating the content and consequences of the Braganza constraint
Contractual discretions and absolute rights are conventionally distinguished, with rationality constraints applying only to the former. The better analysis is that these concepts exist on a spectrum rather than as distinct categories. The trend in recent cases is increasingly in favour of implying rationality constraints but tailoring their scope depending on where the decision falls on this spectrum. The issue of relief remains underexamined in the case-law. It remains unclear which types of Braganza breaches result in nullity and what effect nullifying a decision produces. These issues will likely generate future disputes.
08 February 2026Do divergent terms across European leveraged finance documentation really create misunderstanding, mischief and mayhem?
In this article the author considers the variations in the terms of key covenants within the same debtor groups, particularly in multi-tiered debt capital structures (involving Super Senior RCF, Senior Term Debt, Mezzanine and High Yield Bonds) in the European leveraged finance market, how this is playing out at different points of the credit cycle, and if there may be a way in which the market can more cohesively address/reconcile these differences.
08 February 2026The “digital” answer is always netting …
The co-architect of the design and drafting of the modern form of master trading agreements, such as the Global Master Securities Lending Agreement (GMSLA), Global Master Repurchase Agreement (GMRA) and ISDA Master Agreement, Jeffrey Golden KC (Hon), once stated that "the answer is always netting". The continuing force of the statement lies in netting's central role in both counterparty credit risk mitigation and financial stability. However, the effectiveness and enforceability of netting under these master trading agreements have come to depend on legal opinions intended to confirm enforceability.
Yet, 40 years after the capital markets industry started to utilise these legal opinions for this purpose, very little has changed in how they are produced or operationalised. Legal opinion practice in the financial markets has not kept pace with the complexity of modern trading relationships, evolving regulatory requirements, or the increasing role of technology and the digital agenda. Prudential regulators and supervisory bodies, including the Federal Reserve, the Prudential Regulation Authority, the European Central Bank and the Australian Prudential Regulation Authority, have responded with enforcement action where supervised firms have taken regulatory capital relief without adequate processes, systems and controls in place. The answer remains netting, but it starts with a more digital and data-driven approach to counterparty due diligence, anchored in the Legal Entity Identifier (LEI). This article explains why the LEI is essential to ensuring that netting remains the ultimate solution.
Unlocking the potential: why the EU needs a dedicated securitisation special purpose entity
This article proposes the creation of a single pan-EU legal framework for the establishment and operation of EUSSPEs to facilitate pan-EU securitisations, with EUSSPEs incorporated under EU law, pursuant to a supranational framework above the 27 member state legal systems.
08 February 2026Progress through simplification: an opportunity to modernise the UK securitisation special purpose entity framework
This article proposes making certain targeted changes to UK law to facilitate securitisations using UK securitisation special purpose entities (SSPEs) by simplifying the legal framework in which they operate, including in some cases removing obsolete provisions from more than a century ago.
10 January 2026
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