Northern Europe
Ireland
Dec 2016 - Identifying the Irish “consumer”
A recent decision in Stapleford Finance Ltd v Lavelle [2016] IEHC 385 develops the meaning of a “consumer” under Irish law. The fact that a loan is being used to invest in a commercial transaction does not necessarily preclude a borrower from being considered a consumer where the investment is for personal (eg pension) purposes.
United Kingdom
Dec 2016 - Corporate criminal liability risk increases for financial services
A proposed new UK law contains the largest expansion of UK corporate criminal liability since the Bribery Act 2010 and one of the most significant overhauls of money laundering and proceeds of crime legislation in the last decade.
July 2016 - UK financial sanctions: bank cannot claim for subsidiary’s losses
Bank Mellat v HM Treasury [2016] EWCA Civ 452, 10 May 2016 The Iranian bank, Bank Mellat, whilst having had recent success challenging EU sanctions before the Court of Justice for the European Union (CJEU)1, is having mixed success claiming USD 4 billion before the English courts for wrongful sanctions imposed under English law.
Mar 2016 - Anti-bribery: Lessons from the first deferred prosecution agreement - between the SFO and a bank
The Serious Fraud Office’s recent deferred prosecution agreement with Standard Bank, the first in the UK, provides a useful walk through the new legislation, but a more complex case is needed to shine some light on the tougher questions inherent in the process. The agreement was signed amid growing concern from leading anti-corruption organisations that settlements (which account for the majority of bribery investigations) are reducing the deterrent effect of anti-corruption laws.
Mar 2016 - UK senior managers and certification regime: food for thought for in-house lawyers
The new Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) senior managers and certification regime (the new regime) came into force on 7 March 2016. Following the implementation of the new regime, in-house lawyers at financial institutions will face a range of risks and challenges and will need to be prepared for how to manage them in practice.
Nov 2015 - Borrower not liable for lender's costs of unwinding an internal hedge upon pre-payment of loan
A lender’s internal interest rate swap was not a “funding transaction” under the terms of a loan agreement. This meant that the borrowers were not liable to pay the costs of unwinding the internal swap in the event they pre-paid the loan.
July 2015 - Ability to Litigate in England torpedoed by Foreign Insolvency proceedings
Erste Group Bank AG London Branch v J “VMZ Red October” & ors [2015] EWCA Civ 379, 17 April 2015
Mar 2015 - Third state jurisdiction clause respected - Owusu considered
Plaza BV v Law Debenture Trust Corp plc [2015] EWHC 43 (Ch), 16 January 2015. To what extent, if at all, does the English court have discretion to decline jurisdiction over proceedings commenced on the basis of domicile of the defendant, if the appropriate forum is a third state court?
Mar 2015 - FCA publishes draft guidance regarding how it will exercise its new competition powers
On 1 April 2015, the Financial Conduct Authority (FCA) will gain new concurrent competition powers under the Competition Act 1998 (CA98), the Enterprise Act 2002 (EA02) and the Treaty on the Functioning of the European Union in relation to the provision of financial services.
Nov 2014 - Application of the "private investor principle" in state aid
n a dispute over whether a public authority's loan to a football stadium joint venture constituted illegal "state aid" under EU rules, the English High Court considered the application of the "private investor test".
June 2014 - Court of Appeal Interprets "Commercially Reasonable" in Complex Finance Transaction
The English Court of Appeal has interpreted "commercially reasonable", in the context of an obligation to determine consent to an early termination provision in a guarantee in a "commercially reasonable manner".
Feb 2014 - Banking Reform Act: Issues for litigators
The Financial Services (Banking Reform) Act 2013 (the Act) received Royal Assent on 18 December 2013 and the British government announced that it was "the biggest reform to the UK banking sector in a generation".
Feb 2014 - Financial Conduct Authority to publish information about warning notices
The UK financial regulator, the Financial Conduct Authority (FCA), has confirmed that it will publish information about warning notices that it issues in enforcement cases.
Sept/Oct 2013 - High Court ruling on duties of an agent bank in complex finance structure
In Torre Asset Funding Ltd & anr v The Royal Bank of Scotland [2013] EWHC 2670, the English High Court has considered the role of an agent bank under standard contractual provisions in a structured financing and found that the ambit of the role was defined purely in the transaction documents.
June 2013 - Interpretation of Material Adverse Change clause in loan agreement
Material Adverse Change clauses are common in credit agreements, but are rarely interpreted by the courts.
June 2013 - Issuer of loan notes allowed to solicit votes for a financial restructuring by offering 'consent payment'
The appellant noteholders had tried to argue that is was not lawful under English law for a company to undertake a process which, in effect, "buys" the votes of the holders of notes and other securities issued by a company.
Mar 2013 - English High Court contrues contractual discretion in complex finance transaction
The English High Court found that a contractual requirement for discretion to be exercised in a "commercially reasonable" manner was to be assessed against an objective standard of reasonableness.
Dec 2012 - European Account Preservation ("Freezing") Orders: An Update
This article provides an update on the status of the draft EU Regulation on European Account Preservation Orders (EAPOs).
Dec 2012 - Supreme Court's controversial ruling on English approach to foreign Insolvency Orders
In a highly anticipated judgment, which has significant and potentially detrimental consequences for global cross-border insolvency and restructuring, the English Supreme Court had to consider the assistance that can be offered by the English courts in enforcing foreign insolvency orders.
