In our April webinar “Risk Mitigation Techniques in Trade Financing Structures”, which I delivered with my colleagues Sam Fowler-Holmes and Maria Capocci, we discussed methods to mitigate risks all the way along the transaction lifecycle. We covered the option of taking charges over the accounts of a Borrower and the funds standing to the credit of such accounts, looking at the importance of the "triple cocktail" in demonstrating the requisite level of control where a lender wants to take the coveted fixed charge. 

In our webinar of 23 March 2023, Sam Fowler-Holmes and I looked at some common structures in trade finance.

When discussing structuring warehouse financing, we mentioned that one key mitigator of risk in such structures was the role of a collateral manager or stock monitor.

As an independent third party in any transaction where the sale of the inventory is the primary source of repayment of the financing a collateral manager or a stock monitor can provide an added layer of comfort to the financier.

Over the course of three days, various speakers from the ICC and beyond came together to discuss digitalisation of trade. With trade bodies including the ICC and ITFA pushing awareness and training in this area, there remains a lot to do to bring more businesses in the supply chain into the digital trade sphere.

Helping to improve awareness, this conference could bring some real momentum to proposed changes in law and practice, so that the clear business case for digital trade can be realised.

If your organisation is both supervised under the UK Money Laundering Regulations (“MLR”) and your UK Revenue exceeds £10.2 million per year, if you are not already, you will need to prepare for the forthcoming Economic Crime Levy (the “ECL”). The ECL aims to raise approximately £100 million per annum to help fund new and uplifted anti-money laundering and economic crime capabilities.[1]

Posted by London trainee Pedro Leake-Bandeira and associate Maria Capocci

The original Bankers Association of Finance and Trade Master Participation Agreement (“BAFT MPA”) was launched in 2008 to enable market participants (with its focus on banking groups) to more easily enter into risk transfer agreements, by providing a standard form document that all participants would grow to know and understand.

At the most recent Sullivan trade finance webinar, Geoff Wynne covered the development of documentation for transferring risk through different forms of participation agreements and considered whether the BAFT MPA is always the best way.

Jacqueline Cook, Of Counsel and Senior Knowledge Development Lawyer in our London Trade  & Export Finance Practice, has written an article, "Understanding Export Controls in UK Sanctions Legislation Relating to Russia: Issues for Lenders," first published by Butterworths Journal of International Banking and Financial Law (JIBFL) in November 2022.

On 12 October 2022, The Electronic Trade Documents Bill was introduced into Parliament.

It is a watershed moment in English law, but no-one has anticipated it more than those working in international trade. The (sometimes painful) process of trying to get trade documents from location A to B has been the source of frustration for many, exacerbated by the many lockdowns during the COVID-19 pandemic. Those who have advocated heavily for digitalisation of trade have been faced with one overriding problem: the inability to possess an electronic trade document under English law.

At the latest Trade & Export Finance webinar, partner Geoffrey Wynne delved into the topic of Irrevocable/Independent Payment Undertaking commonly referred to as an IPU. An IPU is a payment obligation usually given by the buyer of goods and services to the Seller, and not by a third party (e.g. guarantor) and not given to a third party (e.g. a financer).

In the latest edition of Sullivan's webinar series, Marian Boyle, Head of Insurance and Dispute Resolution at Sullivan's London office discussed the key clauses found in comprehensive non-payment insurance (NPI) policies. She gave practical advice for policyholders on what to look out for in NPI wordings and provided examples of how the duties NPI policies impose can impact on the operation of the underlying credit risk they insure.

NPI policies provide an indemnity in the event of non-payment for any reason (save for those expressly excluded). If appropriately drafted, NPI policies permit policyholders to manage risks and to expand their financing capacity/offering using these highly effective credit support instruments.

The legal landscape

While NPI policies are subject to general English contract law principles, they are also governed by a body of statutes and common law principles peculiar to insurance contracts. How these rules operate in practice is not always evident from a plain reading of the contract. Thus, when taking out NPI, understanding the legal framework within which all such policies operate is vital for ensuring that the risk transfer relied upon is as robust as possible.

As with other English contracts, any NPI policy must be interpreted objectively by asking what a reasonable person, with all the background knowledge which would reasonably be available to the parties when they entered into the contract, would have understood the language of the contract to mean. Evidence about what a party subjectively intended, or understood the contract to mean, is not relevant.

The insuring clause

The insuring clause describes the risk that insurers will cover. It always needs to be read in conjunction with the policy exclusions (see below). It is important that it is clear when a loss will be considered to have occurred.

It is equally important to ensure that the trigger for insurers’ indemnity is appropriate for the financing transaction that is being covered. The trigger for loss in respect of non-payment under a term loan is very different from structures where the insured is participating between the direct lender and the policyholder. Similarly, if what is being insured are potential losses under a receivables purchase agreement, the loss trigger will need to be drafted differently.

Exclusion clauses set out the circumstances in which coverage will not be provided, even if losses would otherwise fall within the scope of the insuring clause. NPI policies might, for example, exclude cover where the non-payment is caused by a breach by the policyholder of some term of the financing agreement, or where the loss is caused by the fraudulent or illegal act of the policyholder.

Following the highly anticipated publication by the Law Commission of its Electronic Trade Documents Report and draft Electronic Trade Documents Bill on 16 March 2022[1], the Electronic Trade Documents Bill (the Bill) is now on the legislative agenda for the year ahead. This was one of thirty-eight bills referred to in the Queen’s Speech (delivered on 10 May 2022) and is part of the UK Government’s plan to prioritise the growth and strength of the economy. The Bill will put electronic trade documents on the same legal footing as paper documents, thereby resolving the prevailing legal blocker under English law preventing possession of an intangible asset. This will greatly enhance the digitalisation of trade under English law.