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Regulatory Initiative Grid sets out multi-regulator pipeline of planned/ongoing regulatory initiatives in the financial services market

Published on 04 Nov 2021. By Jon Bartley, Partner and Jonathan Charwat, Partner and Whitney Simpson, Of Counsel

At the beginning of the week, a number of UK regulators published this year's version of the 'Regulatory Initiatives Grid' which aims to provide a combined pipeline from a number of regulators on ongoing and planned regulatory initiatives affecting the financial services market. Regulators involved include, amongst others, the Financial Conduct Authority, Prudential Regulation Authority, Payments Systems Regulator and Information Commissioners Office.

Adams v Carey – where does the Court of Appeal's decision leave the SIPP market?

Published on 01 Apr 2021. By Rachael Healey, Partner and Ash Daniells, Senior Associate

The Court of Appeal has today dismissed Mr Adams' appeal against Carey in respect of COBS 2.1.1R. However, the appeal in relation to s.27 FSMA has been upheld. We discuss the background to the proceedings, the Court of Appeal decision and where it takes the SIPP (and wider financial services) market.

Sanctions – A New World?

Published on 26 Feb 2021. By Robert Waterson, Partner and Harry Smith, Senior Associate

The new UK sanctions regime (SAMLA) replaces EU sanctions in the UK, and sits alongside UN sanctions and US sanctions as a factor for businesses to consider in planning their anti-corruption and compliance matters. In particular it can impose trade sanctions, travel sanctions and financial sanctions, with tough financial penalties for non-compliance.

Part 2: Top 5 corporate crime compliance trends for the year ahead

Published on 26 Jan 2021.

As we commence a new year in the midst of unprecedented global challenges, here is our take on the key financial crime risk and compliance trends you need to be aware of in 2021.

Part 1: Top 5 corporate crime enforcement trends for the year ahead

Published on 19 Jan 2021.

As we commence a new year in the midst of unprecedented global challenges, here is our take on the key financial crime risks and trends you need to be aware of in 2021.

Is the current law on corporate criminal liability about to get more teeth?

Published on 05 Nov 2020.

On 3rd November 2020, the Government published its long-awaited response to its January 2017 call for evidence on the question of reforming the law on corporate liability for economic crime. The Government found the evidence inconclusive overall, so it has asked the Law Commission to draft an Options Paper, to assess how effective the current law is relating to corporate criminal liability and where improvements can be made.

New SFO guide to DPAs: material change, or confirmation of approach?

Published on 28 Oct 2020. By Sam Tate, Partner and Lucy Kerr, Senior Associate

Last week, the Serious Fraud Office (SFO) published a comprehensive guide to its approach to Deferred Prosecution Agreements (DPAs).

UKCA Marking: Updated Guidance

Published on 16 Sep 2020. By Gavin Reese, Partner, Head of Regulatory and Elinor Sidwell, Associate

As the end of the Brexit implementation period draws closer, the UK Government has sought to clarify the changes that will follow. On 1 September 2020 they published the long-awaited guidance on the use of UKCA marking following the withdrawal of the previously issued advice earlier this year.

Medical Devices Regulation on the horizon

Published on 09 Jul 2020.

The EU Regulation on Medical Devices 2017/745 (the MDR) had been due to become fully applicable on 26 May 2020.

SMCR: The tricky implementation phase

Published on 09 Jul 2020. By Lucy Kerr, Senior Associate

The Senior Managers and Certification Regime (SMCR) came into force for all financial services firms solo-regulated by the Financial Conduct Authority (FCA) on 9 December 2019. The SMCR replaces the previous APER regime under which the FCA had oversight of the individuals working in the financial services industry. There is a one year implementation period for firms to make the changes required by the SMCR, which expires on 9 December 2020.

COVID-19: The Dairy Sector and Welsh health services granted temporary UK competition law exemptions and the European Commission issues first 'Comfort Letter' to Pharmaceutical Manufacturers

Published on 01 Jun 2020. By Melanie Musgrave, Of Counsel

The UK Government has granted a temporary competition law exemption for certain collaboration within the dairy sector and Welsh health services and the European Commission has published its first 'comfort letter' to allow co-operation to ensure supplies of medicines for COVID-19 patients.

Regulated Activities Order amendments for the new Bounce Back Loan Scheme

Published on 05 May 2020.

On 1 May 2020, the Financial Services and Markets Act 2000 (Regulated Activities) (Coronavirus) (Amendment) Order 2020 was published and came into force on 4 May 2020.

COVID-19: What is the CMA's current approach to UK merger assessment?

Published on 29 Apr 2020. By Melanie Musgrave, Of Counsel

The CMA has been adapting its working practices to react to the ongoing challenges of a change in working environment that has an impact on almost all businesses.

COVID-19: Coronavirus and Competition Law - The Current Enforcement Scene

Published on 06 Apr 2020. By Melanie Musgrave, Of Counsel

Covered: Insurance regulation – Asia edition

Published on 16 Jun 2023. By Andrew Carpenter, Partner and Heidi Ng, Associate

Covered: Insurance regulation – Asia edition

New digital markets regime guidance published for consultation

Published on 28 Jun 2024. By Tom McQuail, Partner and David Cran, Partner, Head of IP & Tech and Melanie Musgrave, Of Counsel and Leonia Chesterfield, Of Counsel and Ben Powell, Associate

The Digital Markets, Competition and Consumers Act 2024 received Royal Assent on 24 May 2024. This article considers who will be impacted by the new digital markets regime, the requirements it will introduce, and how it may be enforced, and summarises the CMA’s new draft guidance under consultation on how it intends to implement the regime in practice.

The Digital Markets, Competition and Consumers Act – the Competition Perspective

Published on 28 Jun 2024. By Tom McQuail, Partner and Chris Ross, Partner and Melanie Musgrave, Of Counsel and Leonia Chesterfield, Of Counsel

This article considers the key changes to general competition law under the Digital Markets, Competition and Consumers Act which received Royal Assent on 24 May 2024 and is expected to enter into force in the Autumn.

Summary judgment against persons unknown – a tale of two crypto judgments

Published on 09 May 2024. By Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate

Two recent crypto judgements in the High Court, Mooij v Persons Unknown (February 2024) and Boonyaem v Persons Unknown (December 2023) reached different conclusions regarding whether a summary judgment could be granted against unidentified (and unidentifiable) fraudsters, with Mooji deciding 'yes' and Boonyaem deciding 'no'.

Supreme Court confirms no knowing receipt claim where equitable interest is destroyed: Byers v Saudi National Bank

Published on 17 Apr 2024. By Jake Hardy, Partner and Ana Margetts, Associate

In Byers v Saudi National Bank, the Supreme Court affirmed the findings of the lower courts by holding that a claim for knowing receipt cannot be made if a claimant’s equitable interest in the property in question has been extinguished by the time of the defendant’s knowing receipt of the property.

Merchants Beat Venice: Court of Appeal finds that local authority of Venice did have capacity to enter into Interest Rate Swaps

Published on 19 Mar 2024. By Simon Hart, Partner, Head of Banking & Financial Markets Disputes

In a significant judgment in Banca Intesa Sanpaolo and Dexia Credit Local SA v Comune di Venezia [2023] EWCA Civ 1482, the Court of Appeal overturned the findings of the High Court

Delay at your peril: High Court holds that two week delay causes party to lose right to object to irregularity in arbitration

Published on 02 Aug 2023. By Ana Margetts, Associate and Tatiana Minaeva, Partner and Head of Investor-State Arbitration

In Radisson Hotels v Hayat Otel, (1). the High Court found that the claimant ("Radisson") had lost its right to challenge an arbitration award (the "Award") by continuing to take part in the proceedings for a period of two weeks after becoming aware of improper conduct by one of the arbitrators (the "Arbitrator"). The court also rejected Radisson's subsequent application seeking to redact the identities of the parties and any details which might identify them in the judgment, in order to preserve the confidentiality of the underlying arbitration (2). While the judge acknowledged Radisson's desire to keep the arbitration confidential, this ultimately did not outweigh the general public interest in open justice.

Best of both worlds with PD57AC? High Court allows opinion evidence in factual witness statement

Published on 02 Aug 2023. By Rosy Gibson, Associate

The High Court has allowed the witness statement of a factual witness even though the claimant had previously intended to instruct him as an expert and his statement contained opinion evidence (Polypipe Limited v Peter Russell Davidson) ([2023] EWHC 1691 (Comm). The judge confirmed that such evidence is admissible where the witness is suitably qualified, but it will not be accorded the same weight as a formal expert report. Separately, this appears to be the first reported case in which the court accepted that permission for an extension to the deadline for expert reports could be made conditional on disclosure of any unserved report(s), though the court declined to prescribe that condition in this case.

Scots law decision confirms that privilege doesn’t change its spots

Published on 19 Jul 2023. By Tim Potts, Senior Associate and Parham Kouchikali, Partner

The Scots law judgment in University of Dundee v Chakraborty [2023] CSIH 22 has reiterated that whether or not a document is protected by legal professional privilege is determined at the point in time at which the document is created. A non-privileged document cannot later acquire privileged status. The judgment also made certain findings about waiver of privilege which may be more controversial, particularly in the context of regulatory investigations.

Binance successfully challenges interim proprietary injunction over deposited cryptoassets

Published on 24 May 2023. By Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate

In Piroozzadeh v Persons Unknown and Others [2023] EWHC 1024 (Ch), the cryptocurrency exchange Binance successfully applied to discharge an interim proprietary injunction obtained by a claimant whose misappropriated cryptoassets had been deposited at the exchange. This is the first recorded case of an exchange successfully having discharged such an injunction.

Singapore Court of Appeal Sends Acceleration of Interest Payment Clause To The Penalty Box

Published on 24 Apr 2023. By Yuankai Lin, Partner

Commercial contracts commonly include clauses providing for liquidated damages, accelerated repayment or late payment interest in the event one party breaches the contract.

Case Note: Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 – Examining the law governing arbitrability at the pre-award stage

Published on 08 Mar 2023. By Yuankai Lin, Partner and Selina Toh, Senior Associate

The Court of Appeal ("CA") in the case of Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 ("Anupam Mittal") had to determine a previously undecided point of law in Singapore: which system of law governs the arbitrability of a dispute at the pre-award stage, i.e., the law of the seat of the arbitration (lex fori) or the law governing the arbitration agreement.

Doctrine of separability in arbitration: should the arbitration agreement and the main contract "sink or swim" together or alone?

Published on 07 Mar 2023. By Shai Wade, Partner, Head of International Arbitration and Jessica Davies, Associate

In DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd, the Court of Appeal considered the arbitration law doctrine of separability.

Arbitration jurisdictional challenge no bar to English court ordering compliance with a tribunal peremptory order

Published on 02 Mar 2023. By Fred Kuchlin, Senior Associate and Tatiana Minaeva, Partner and Head of Investor-State Arbitration

The Court of Appeal has found that the English court may grant an order requiring a party to comply with a peremptory order of a tribunal before the determination of an outstanding challenge to jurisdiction of the tribunal.

High Court favours English jurisdiction in bribery claim brought by Kuwaiti pension fund

Published on 28 Feb 2023. By Louise McCarthy, Associate

The High Court recently rejected an application, brought by two defendants to an alleged bribery claim advanced by a Kuwaiti pension fund, that the claim should be heard before the Swiss courts, holding that England was the proper jurisdiction both in order to avoid the risk of fragmentation of proceedings, and in view of the close connection of the claim to England.

Considering bringing an RFI application? Is it strictly necessary?

Published on 31 Jan 2023. By Parham Kouchikali, Partner

Andrew Ayres KC and Andrew Dinsmore (Twenty Essex), instructed by Parham Kouchikali and Suzie Kurdi of this firm, successfully resisted a Request for Further Information (RFI) in the High Court.

Court of Appeal rejects timing and informed consent defences in bond bribery case

Published on 30 Jan 2023.

In a recent decision, the Court of Appeal decided in Trafalgar Multi Asset Trading Company Limited (in liquidation) v James David Hadley and others that pleaded defences to a bribery claim were so fanciful as to entitle the claimant to summary judgment.

High Court rejects Group Litigation Order in FSMA litigation as it would not further the Overriding Objective

Published on 30 Jan 2023. By Charlotte Henschen (née Ducker), Partner and Alastair Hall, Associate

In a recent decision in Edward Moon & Ors v Link Fund Solutions, Mr Justice Trower dismissed an application by two groups of claimants, declining to make the Group Litigation Order (GLO) sought.

Hong Kong – Parties agreed settlement terms without formal settlement agreement

Published on 19 Jan 2023. By Antony Sassi, Managing Partner, Asia and Rebecca Wong, Partner and James Lee, Associate

In MSB International Ltd v Lok & Anor , the Court of First Instance of the High Court found that the parties had agreed a full and final settlement of all their claims in two related proceedings, by way of an exchange of without prejudice written communications between their legal representatives, although no formal draft settlement agreement referring to more comprehensive release terms and stated to be "subject to contract" had been agreed.

No loss? No Quincecare claim … the Supreme Court judgment in Stanford International Bank v HSBC

Published on 12 Jan 2023. By Jonathan Cary, Partner and Olivia Dhein, Knowledge Lawyer

The Supreme Court has handed down its judgment in Stanford International Bank Ltd v HSBC Bank plc, deciding that there was no pecuniary loss suffered by the Claimant and therefore no basis for a Quincecare claim.

No need for perfection: ISDA Master Agreement default notice still valid where some errors made

Published on 10 Jan 2023. By Daniel Hemming, Partner and Olivia Dhein, Knowledge Lawyer

The High Court has decided that a default notice under an ISDA Master Agreement is still valid even if it does not contain wholly accurate statements of the amount of the payment not made, the confirmation of the trade, or the currency of the payment.

No need for late night panic: Court of Appeal decides that midnight e-filing is permissible

Published on 22 Dec 2022. By Simon Hart, Partner, Head of Banking & Financial Markets Disputes

The Court of Appeal recently considered the short, but important, procedural question of whether a document may be filed electronically at any time up to midnight on the date by which the document is due.

Great Peace confirmed: High Court decides that test for common mistake is settled

Published on 22 Dec 2022. By Simon Hart, Partner, Head of Banking & Financial Markets Disputes and Emily Saffer, Associate

The High Court has clarified the test to void a contract for common mistake in John Lobb S.A.S v John Lobb Ltd, confirming that the four part test laid down by the Court of Appeal in Great Peace Shipping Ltd v Ttsavliris Salvage (International) Ltd remains the relevant test.

The FTX fallout so far and what may come next

Published on 16 Dec 2022. By Dan Wyatt, Partner

The collapse of FTX Trading Ltd. has been as dramatic as it has been fast. Until then, FTX had been the second-largest exchange in the world.

Three Crypto firsts for the English courts

Published on 22 Nov 2022. By Dan Wyatt, Partner and George Fahey , Associate

The recent judgment handed down in Jones v Persons Unknown [2022] EWHC 2543 (Comm) contained three firsts in the English Court: the imposition of a constructive trust between a crypto exchange and a victim of crypto fraud, an order for delivery up of Bitcoin, and summary judgment served by NFT airdrop. It shows the English courts' continued willingness to push the boundaries of English law in relation to the recovery of misappropriated cryptoassets. The innovative application of English law procedures and remedies to the growing problem of crypto theft and fraud is of considerable assistance to the victims of this pernicious and widespread fraudulent activity.

Court of Appeal refuses to drive "a coach and horses" through the concept of a limited liability company in joint tortfeasor decision

Published on 27 Oct 2022. By Karina Plain, Associate (Australian qualified) and Charlotte Henschen (née Ducker), Partner

The Court of Appeal upheld a finding of corporate liability, but no director accessory liability, for failure to advise of risks of property investment scheme, despite the director being the driving force behind the company's marketing of the scheme.

A balancing act: IMF confidentiality obligations do not trump duty of disclosure in Argentinian securities dispute

Published on 27 Oct 2022.

This case serves an illustration of the factors that the court will take into consideration when weighing up the competing interests of confidentiality obligations against the duty of disclosure, here under the rules of the disclosure pilot under PD 51U. The court found that confidentiality obligations owed to the IMF did not override the duty of disclosure. The court took into account both the scope of the confidentiality obligation and the relevancy and contemporaneous quality of the documents.

Hong Kong court grants reported Norwich Pharmacal in aid of execution

Published on 27 Oct 2022. By Charles Allen, Partner & Head of Hong Kong office

Unsurprisingly, claimants want to be able to enforce their judgments, especially when the underlying proceedings have been hard-fought and (therefore) expensive.

Hong Kong Court of Appeal: pre-arbitration compliance is a matter of admissibility, not jurisdiction

Published on 07 Oct 2022. By Charles Allen, Partner & Head of Hong Kong office and Michelle Lai, Associate

The Court of Appeal, in C v D [2022] HKCA 729, has confirmed that compliance with pre-arbitration procedural requirements in a contractual escalation clause is an issue going to the admissibility of the claim, and not to the arbitral tribunal's jurisdiction, and that consequently an arbitral tribunal's decision was not liable to be set aside by the Court for lack of jurisdiction under Article 34 of the UNCITRAL Model Law.

"Clear and unconditional communication" determines whether arbitrator appointment was valid

Published on 07 Sep 2022. By Anna Riquetti, Associate and Tatiana Minaeva, Partner and Head of Investor-State Arbitration

On 20 June 2022, the English High Court issued summary judgment in the case of ARI v WJX. The judgment arose from a dispute as to the validity of the arbitrator appointment in a London Maritime Arbitrators Association Arbitration (LMAA) and decided that it is the clear and unconditional communication by an arbitrator which determines whether their appointment was valid, as opposed to whether a contract had been formed with the arbitrator.

Court of Appeal confirms that conditional fee arrangements do not give rise to an implied a duty of good faith

Published on 01 Sep 2022. By Daniel Hemming, Partner

The Court of Appeal has upheld a High Court decision that conditional fee agreements (CFAs) do not imply a duty of good faith on the part of the client. A firm of solicitors acting under a CFA who had been instructed by their client to settle proceedings on a "drop hands" basis, with no order for costs, was not entitled to recover costs from their client on the basis that the client had breached a duty of good faith. The ruling cautions solicitors who enter into CFAs about the risks of clients agreeing a settlement that deprives them of their entitlement to conditional fees.(1)

High Court confirms permission not needed for "Technology Assisted Review" to facilitate discovery in litigation

Published on 31 Aug 2022. By Jonathan Crompton, Partner and Flora Leung, Associate

China Metal Recycling (Holdings) Ltd (in liquidation) v Deloitte Touche Tohmatsu,(1) is a recent decision of the Court of First Instance of the High Court that confirms that court approval is not needed for the use of technology assisted review (TAR) to facilitate the discovery process pursuant to an agreed protocol between the parties, although the court has power to order the manner in which discovery of documents is undertaken between the parties if they apply to court.

"Specifically mentioned": High Court clarifies rules about documents referred to in evidence under the Disclosure Pilot

Published on 03 Aug 2022. By Connie O'Conor , Associate

In a judgment that has recently become publicly available (Michael Wilson and Partners Ltd v Emmott and others [2022] EWHC 730 (Comm)) the High Court rejected the claimant's request for disclosure of documents referred to in a witness statement which were "bound to exist". In doing so, the court re-emphasised the importance of clarity and specificity in relation to requests for disclosure.

Back to basics on contract interpretation as Court of Appeal finds that natural meaning of settlement agreement prevails

Published on 01 Aug 2022. By Suera Hajzeri, Associate and Daniel Hemming, Partner

In Schofield & Anor v Smith & Anor [2022] EWCA Civ 824, the Court of Appeal dismissed the appeals of a group of companies, finding that a settlement agreement entered into between the group companies and their bank released the companies' former administrators and their solicitors from all relevant claims, even though the settlement agreement had been agreed without the involvement of the administrators, and after the administration of the group companies had been concluded.

Court of Appeal finds that damages-based agreements are not available to defendants

Published on 27 Jul 2022. By Simon Hart, Partner, Head of Banking & Financial Markets Disputes and Alastair Hall, Associate

The Court of Appeal has found that damages-based agreements (DBAs) are not available to non-counterclaiming defendants (Candey Ltd v Tonstate Group Ltd & Ors). [2022] EWCA Civ 936. In reaching this conclusion, the court held that agreements between legal representatives and defendant clients, which provide for payment to the legal representative of a percentage of sums that the client has resisted paying to its opponent (and where the client received no financial benefit from its opponent), were unlawful and unenforceable.

High Court holds litigation funder liable for costs that pre-dated funding agreement

Published on 22 Jul 2022. By Chris Ross, Partner

The Commercial Court has held a litigation funder to be jointly and severally liable for the defendants' costs from a date prior to the litigation funding agreement and despite the involvement of other funders in The ECU Group plc v HSBC Bank Plc & ors [2022] EWHC 1616 (Comm).