In Practice

Operative and material? Ten years later: setting aside a judgment for fraud

In Balber Kaur Takhar v Gracefield Developments,¹ Steven Gasztowicz QC, sitting in the High Court as a deputy High Court judge, set aside a judgment issued ten years earlier on the basis it had been procured by fraud. The court considered the correct test to apply when setting aside a judgment for fraud – which ultimately turns on whether the fraud is operative and material.

Brexit update: implications for securitisations

The uncertainties of Brexit persist despite the UK’s formal withdrawal from the EU in January 2020. Market participants need to continue with their preparations and their engagement with regulators. Regulators and politicians will ultimately determine how the creation of a dual regulatory regime across the EU and the UK will impact the securitisation markets beyond 2020.

Enforcing MAC clauses in financing agreements: a double-edged sword

Impact of the Corporate Governance and Insolvency Act 2020 on securitisation transactions

In this In Practice article, the author discusses the key implications of the Corporate Governance and Insolvency Act 2020 (CIGA) for securitisation transactions.

The UK’s National Security and Investment Bill: implications for loan financings and related collateral

The UK’s new National Security and Investment Bill will create a new, standalone screening regime allowing the government to review acquisitions of “control” of legal entities and assets and to prohibit such acquisitions or impose remedies on them, if it identifies national security concerns. The new regime is expected to enter force in Summer/Autumn 2021. The government’s draft Statement of Policy Intent accompanying the Bill confirms that, “although loans are not exempt from scrutiny, the overwhelming majority of these are expected to pose no national security concerns, including within the core areas. In the rare circumstances where they do pose concerns, the Secretary of State generally only expects to intervene when an actual acquisition of control will take place (e.g. a lender seizing collateral)”. This In Practice article provides a broad summary of the main features of the new national security screening regime and highlights how loans and related security can be impacted.

Crypto comes of age? (also, DeFi, NFTs, Web3 and the metaverse)

Crypto is now mainstream. Charles Kerrigan highlights the impact of this across financial markets and concludes that finance lawyers can be late to a party.

Sanctions compliance considerations for financial institutions post-Brexit

Following the end of the transition period after the UK’s departure from the EU, the UK’s autonomous sanctions regime (under the Sanctions and Money Laundering Act 2018 (SAMLA 2018)) came into force on 31 December 2020. This regime is largely similar to the EU sanctions regime, but there are several differences which may have implications for financial institutions’ sanctions compliance programmes.

Towards algorithm auditing in financial services

We are witnessing a rapid development and adoption of algorithms. At the same time, we need to develop the monitoring and managing of their safety. In the algorithmic age companies are (and should be) increasingly concerned about potential harm that their systems can cause, both in terms of reputation and financially. Knight Capital’s experience (~$450m) caused by a glitch in its algorithmic trading system is a paradigmatic example. As such, in addition to societal, legislative and regulatory pressures, companies themselves are keen to assure their systems are trustworthy.¹

Expectations of privacy for individuals under investigation

The appeal in ZXC v Bloomberg is expected to be heard by the Supreme Court later this year. The outcome of this appeal could diminish the expectation of privacy currently afforded to individuals under investigation by law enforcement agencies. With the law on corporate criminal liability under review by the Law Commission, and a growing appetite for claims against senior executives in the financial services sector, this is a case to watch. This piece provides a refresher on the rights currently conferred on suspects.

Regulatory divergence after Brexit: laying the foundations for a new UK regime

On 24 December 2020, the UK and EU finally reached agreement on a post-Brexit trade deal. As expected, and as acknowledged by Prime Minister Boris Johnson on Sunday 27 December,¹ that agreement contains very limited provision for cross-border trade in financial services. On the same day, Chancellor Rishi Sunak suggested that the UK will now be able to “do things a bit differently” on financial services. This In Practice article briefly examines what that could mean for UK financial sector regulation in the near future and beyond.