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Changing of the (safe)guard: the FCA’s proposals for payments and e-money firms
Payments and e-money firms are subject to a safeguarding regime designed to protect client funds. However, the Financial Conduct Authority (FCA) does not believe the regime is working. The proposals in CP24/20 are intended to address this problem. Interim-state rules will reinforce existing requirements, including by monthly regulatory returns and annual audits. End-state rules will move to a trust arrangement modelled on the regime for investment business, among other changes. As consulted on, the FCA’s proposals will place a greater compliance burden on payments and e-money firms. This may lead to increased enforcement action and consolidation within the sector.
02 March 2025The perils of relying on book entries in intra-group loan agreements
Intra-group loan agreements are a common feature of corporate life. For convenience, they are often recorded as simple book entries, rather than formally documented by loan agreements. This article considers the potential benefits and dangers of this practice.
02 March 2025A smarter ring-fencing regime: all change?
In this article, Jochen Vester provides an overview, and assessment, of the recent changes to the UK bank ring-fencing regime, that entered into force on 4 February 2025.
02 March 2025Good faith in English contract law: taking stock a decade or more after Yam Seng
This article considers the development of the doctrine of good faith since Leggatt J’s historic decision in Yam Seng Pte Ltd v International Trade Corp Lt d [2013] EWHC 111 (QB). The authors focus on what recent cases tell us about: (i) when such a duty will be implied into a contract; (ii) the basis for implication; and (iii) the content of the duty.
02 March 2025Deconstructing delayed draw term loans
In this article we delve into the detail of delayed draw term loans. This has predominantly been a common feature in the private credit market, but lenders in the broadly syndicated loan market have started to offer the product too as competition between the two markets heats up.
02 March 2025Buy-now, pay-later: what the future will (and might) hold for the sector
Following concerns about potential material consumer indebtedness arising from the exponential growth in the ready availability of buy-now, pay-later (BNPL) credit products, and some four years after the 2021 Woolard Review concluded urgent action was needed to address that, 2025 is set to see the enactment of legislation that brings the majority of traditional BNPL within the scope of the Financial Service and Markets Act 2000 and the Consumer Credit Act 1974. The Financial Conduct Authority is then charged with delivering a tailored conduct of business framework so that, in 2026, most BNPL will be offered within a regime that provides appropriate levels of consumer protection while ensuring that lenders are not deterred from continuing to offer these useful interest-free products. This article examines the new regulatory perimeter, how the proposals aim to meet the requirements for proportionality and protection and what the alternatives might be for existing lenders.
02 March 2025The lucrative AI debt market – disrupting traditional debt lending: Part 1
In two parts, the second to be published in the next issue, we discuss the burgeoning debt market in artificial intelligence (AI) and how this could disrupt traditional debt lending frameworks if such frameworks are not adapted to AI companies. This Part 1 discusses how the unique nature of AI companies could present distinct challenges to financial covenants in traditional lending frameworks if not properly considered in the context of such companies. Part 2 will then discuss how the unique nature of AI-related assets could present similar challenges to the process of security enforcement in traditional lending frameworks if not properly considered in the context of such assets.
02 March 2025“Red flags” and ostensible authority: reflections on Republic of Mozambique v Credit Suisse & Ors
The question of when an agent has ostensible authority to bind their principal has been the subject of several important decisions in recent years. That question arose again in Republic of Mozambique v Credit Suisse International & Ors [2024] EWHC 1957 (Comm) (Mozambique) in relation to whether the Mozambican finance minister had authority to enter into sovereign guarantees on behalf of the Republic of Mozambique (the Republic) with various lending banks. This article analyses some of the issues that arose in Mozambique in relation to ostensible authority and considers the “red flags” of financial crime relied upon by the Republic as putting the banks on inquiry that the finance minister did not have authority.
02 March 2025Waiver and estoppel arguments against debt enforcement
This article considers arguments of waiver, estoppel and variation that borrowers may raise to resist debt enforcement action, and their interaction with so-called “no oral modification” provisions typically found in finance documentation. It also considers some practical implications of the principles in the banking and finance context.
02 March 2025Derivatives for private capital managers: hot topics and predicted trends for 2025
This article explores the hot topics and predicted trends for 2025. It is not focused on one particular strategy or sector and will be of interest to private capital managers using English law derivatives documents and/or those which are subject, directly or indirectly, to EU regulation (which includes US managers active in the EU).
02 March 2025
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