Written by Ellis Lawson (partner) and David Green (paralegal)

A significant milestone in the digitalisation of trade was reached on 26 July 2024 with the World Trade Organisation (WTO) Joint Statement Initiative (JSI) on Electronic Commerce publishing the text of its agreement on electronic commerce.

The wide-ranging agreement’s reference to the facilitation of electronic transferable records will have piqued the interest of those in the trade finance world, with the widespread use of digital bills of exchange, promissory notes, bills of lading, warehouse receipts and other trade documents moving one step closer.

Written by Marian Boyle (partner) and Samson Verebes (trainee)

The importance of clear drafting cannot be overstated. Ambiguity of language can lead to disputes, costly litigation and unintended outcomes. The recent Court of Appeal judgment in Cantor Fitzgerald & Co v Yes Bank Ltd [2024] EWCA Civ 695 provides a useful reminder of the English court’s approach to contractual interpretation, which should inform the drafting of any contract.

In our latest trade and export finance webinar, partners Mark Norris and Ellis Lawson gave an update on the export credit agency and development finance market, including:

1. a look back at 2023;
2. consideration of the key trends shaping the market and what we can expect from the year ahead;
3. a discussion of some of the sustainability features which are increasing in prominence in the export and development finance market; and
4. a discussion of the increasing funding gap in developing markets, with a particular focus on the need for “adaptation finance”.

Written by Matilda Johnson and Jacqueline Cook

In this blog, we take a look at some new jargon and key terms that you might come across in your transactions or industry discussions in the coming months.

Trade & Export Finance

Uniform Rules for Transferable Electronic Payment Obligations (URTEPO)

URTEPO is published by the International Trade and Forfaiting Association (ITFA) and aims to provide the trade and forfaiting industry with a robust framework within which to operate with confidence and enable the modernisation of the traditional forfaiting market. URTEPO allows for the payment obligation in question to be created by any means possible, so long as it is digital and transferable. The rules are compatible with the principles behind new legislation in this area, including the UK’s Electronic Trade Documents Act 2023 (ETDA).

Written by Ellis Lawson and Maria Capocci

Our latest Trade & Export Finance webinar, delivered by Maria Capocci (Associate) and Ellis Lawson (Partner), considered the different types of environmental, social and governance (ESG) loans and their current position in the finance market. The webinar also provided a practical insight into the key concepts behind the LMA's draft sustainability linked loan (SLL) provisions and how parties may look to negotiate those provisions.

Written by Sam Fowler-Holmes, Matilda Johnson, Luna Owen, Geoff Wynne and Pedro Leake-Bandeira

On 12 September 2023, the European Commission proposed a new EU Regulation on combatting late payments in commercial transactions which will revise and replace EU Directive 2011/7/EU (the Late Payment Directive). The Commission says it aims to reduce the significant impact that late payments have on businesses and SMEs by addressing shortcomings in the Late Payment Directive.

The proposed EU Regulation will introduce stricter and more streamlined measures to prevent late payment practices, such as enforcement and redress measures the Commission says are designed to protect creditors from late payments and will seek to rectify asymmetries in the contractual bargaining power between large debtors and small creditors.

Edited by: Matilda Johnson and Geoffrey Wynne

Today is the day, the Electronic Trade Documents Act (ETDA) is now in force! Although a short piece of legislation, it is flexible and seeks to give certain trade-related electronic documents the same legal recognition as their paper counterparts. This will help to move at least some of the sizeable trade market into the digital era.

It is no secret that the ETDA will offer a certain level of clarity to help mold responses to the ever-growing number of questions and approaches put forward by clients and industry bodies that are looking to use digital solutions for trade and trade finance facilities and finance transactions. However, the flexibility afforded by the ETDA means that different players in the industry could take a range of different approaches in order to create an end to end digital, ETDA-compliant, trade or trade finance transaction.

There are a number of parties seeking advice to determine how best to deal with their digital solutions for trade such as key legal and operational elements not covered by the ETDA, including governing law considerations and the issues presented around the flexible, technology neutral concept of a "reliable system." No doubt many solutions will emerge.

For further information on the ETDA or on the digitalisation of trade in general, please contact Geoff Wynne (Partner), Simon Cook (Partner), Luna Owen (Associate) or your usual contact at the firm.

Jacqueline Cook, Of Counsel, and Larissa Head, Trainee Solicitor, sum up the key points of the Electronic Trade Documents Act 2023 (the Act) which will shortly receive Royal Assent and come into force two months later.

What is the aim of the Act?

The aim of the Act is to allow certain documents used in trade and trade finance in electronic form to have the same legal effect as paper documents. Until the Act comes into force, these electronic trade documents are not considered capable of being (physically) possessed under English law to enforce rights to payment of sums of money or delivery of goods on board a vessel or in a warehouse.

Jacqueline Cook, Of Counsel and Larissa Head, Trainee Solicitor, provide an update on the transition away from USD LIBOR with the deadline of 30 June 2023 upon us.

What do market participants in the trade finance industry need to be doing with the limited time left?

For some time now, parties in the trade finance sector have been aware that the use of USD LIBOR was coming to an end as the transition to use alternative Risk Free Reference Rates (RFRs) progresses using the Secured Financing Overnight Rate (SOFR) as the basis for RFRs for USD.

Jacqueline Cook, Of Counsel, sums up the key messages from Sullivan’s May webinar.

Geoffrey Wynne considered what financiers could do if things start to go wrong in a trade, export or project finance transaction and asked participants to consider a few key questions:

1. could you anticipate a fraud;
2. is the financing structure sturdy; and
3. could the structure facilitate mis-selling in any way?   

With these in mind, the message is clear:

1. carry out transaction due diligence before signing;
2. monitor the income generating assets throughout the life of the transaction; and
3. respect the financing structure.