In Practice
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Green expectations: ESMA’s Statement on sustainability prospectus disclosure
ESMA’s July 2023 public statement about sustainability disclosures in prospectuses attracted significant attention. Understandably so. The Statement is directed at National Competent Authorities and provides ESMA’s recommendations to follow when reviewing prospectuses, but issuers will also need to take note.
18 March 2024Transferability: does there need to be a re-balance?
In the period leading up to (and during) a default or distress, the ability to trade loan positions takes on renewed significance, with transferability provisions in sharp focus. In recent years, the move towards more borrower/sponsor friendly documents has resulted in more restrictive “approved” lists and blanket restrictions on transfer to certain types of transferees (without consent). With those constraints driving more limited liquidity in the secondary market, it may be time to reflect on the extent of transfer restrictions, particularly where in practice, it may be beneficial to a borrower to move the debt away from the traditional lenders.
18 March 2024Does the “D” in PSD3 stand for “divergence”? PSD3 and payment services in the UK
In June, the European Commission published a set of proposals to modernise the payment services sector and bring it into the digital age. The package included proposals for a revised EU Payment Services Directive (PSD3) and a new set of EU Payment Services Regulations (EU PSRs and, together with PSD3, Payments Proposals). This In Practice article outlines some of the proposals and what they mean for the UK as it diverges from the EU payment services framework.
18 March 2024Embedded finance and chargebacks: consumer duty and proposition structuring
As embedded finance and payment models continue to develop, I consider: (i) how merchants and their payment solution partners balance offering customers the optimum checkout experience with providing appropriate consumer protections; and (ii) what these models mean for liability arrangements between merchants and fintechs.
18 March 2024Can the consent of an obligor be taken at face value?
Lenders and their legal advisors carefully check the capacity of obligors, and the due authorisation of their signatories, at the commencement of a deal. In this In Practice article, we consider the issues arising when consents are needed from obligors during the life of a facility. The recent case of CRF I Ltd v Banco Nacional De Cuba and another [2023] EWHC 774 (Comm) is a cautionary reminder of the consequences of failing to obtain required obligor approvals going forward.
18 March 2024Private portfolio financings on the rise
In this article the authors consider the benefits of private portfolio financings in light of challenging conditions for CLO issuance.
18 March 2024More than meets the eye: a new UK regime for critical third parties: what does it mean for regulated firms?
Financial services regulators across the globe are considering how to regulate in some way cloud providers and other information and tech service companies (critical third parties (CTPs)) which many banks and other financial institutions rely on heavily for critical services. While the European Union’s new Digital Operational Resilience Act (DORA) imposes new requirements on both CTPs and the regulated firms which use their services, the UK has started the ball rolling on a new CTP regime aimed only at the CTPs themselves. The UK regulators’ proposals for their part in the new regime are out for consultation. We take a look at some key areas of the proposals which remain unclear from the financial sector’s perspective.
18 March 2024Super senior facilities: a recap on key documentary terms
In this In Practice article Michael Leadbeater considers the key documentary terms which will form the basis of facilities agreement negotiations in the context of a super senior/senior financing.
18 March 2024The art of the intercreditor
Over the last decade, financing transactions have moved away from typical senior/mezzanine loan structures to a wider variety of products including syndicated loans, first lien/second lien loans, direct lending and high yield bonds (and in some cases, a hybrid of them). This has increased lenders’ attention on the intercreditor terms, which establish the relationship and priority between the different types of creditors in the financing structure, particularly in the circumstances when things go wrong. In this In Practice article, the authors consider the key terms of intercreditor agreements that creditors should be focused on during negotiations and, how these and other provisions differ between a structure comprised of senior and junior loans (Senior/Junior Structure) and a structure comprised of notes, each accompanied with a super senior revolving facility (Notes/SSRCF Structure). 11 1
18 March 2024Overhauling the rules on the law of the arbitration agreement?
A departure from Enka v Chubb amongst the Law Commission’s proposals to finetune the Arbitration Act 1996.
18 March 2024
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