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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digital markets regime, the requirements it will introduce, and how it may be enforced, and summarises the CMA’s new draft guidance under consultation on how it intends to implement the regime in practice.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

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.

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.

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.

Banking and financial litigation markets update - Summer 2022

Published on 25 Jul 2022. By Jonathan Cary, Partner and Jessica Davies, Associate and Olivia Dhein, Knowledge Lawyer and Jake Hardy, Partner and Simon Hart, Partner, Head of Banking & Financial Markets Disputes and Charlotte Henschen (née Ducker), Partner and Tom Hibbert, Partner, Global Head of Commercial Disputes and Tim Potts, Senior Associate and Chris Ross, Partner and Emily Saffer, Associate and Christopher Wheatley , Senior Associate and Alan Williams, Partner

In this overview we look at some of the most important judgments in recent months in the area of banking and financial markets litigation.

Whistle-blowing on illegal cartels drops 70% in 5 years

Published on 18 Sep 2023. By Chris Ross, Partner and Arash Rajai, Partner

Competition and Markets Authority (CMA) recently increased award to £250,000 Calls to the CMA hotline have plummeted from 1,442 in 2017 to 427 in 2022

The Times recognises RPC among Best Law Firms 2024

Published on 30 Oct 2023.

International law firm, RPC, has been recognised by The Times in its Best Law Firms 2024 report, an annual ranking of the top 250 law firms in England and Wales.

EBA encourages banks to pool their resources for cloud audits

Published on 02 Jun 2017.

The EBA has set out that banks are no longer required to provide their auditors (or themselves) with an independent right to audit their cloud service providers.

All is not (necessarily) lost: Crypto crime recovery

Published on 30 Jun 2022. By Adam Craggs, Partner

With over 2 million people in the UK now holding and using cryptocurrency, and the Chancellor announcing that a government backed non-fungible token ("NFT") is to be issued by the Royal Mint this summer, the market for crypto-assets is expected to continue to grow in the coming months and years; so much so that legislation is planned to implement a new regulatory regime for the crypto market.

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.

Court of Appeal orders solicitor be struck off for serious breaches of accounts rules

Published on 27 Jun 2023. By Sumarsono Darsono, Partner and Jennifer Leung, Associate

In an important judgment in Law Society of Hong Kong v A Solicitor, the Court of Appeal set aside an order that a solicitor be suspended from practice for 24 months and substituted it with an order that he be struck off from the roll of solicitors.

The CAT's new approach: I can't afford a carriage (dispute)

Published on 02 Jun 2023. By Chris Ross, Partner and Leonia Chesterfield, Of Counsel

Since the collective proceedings regime in the UK's Competition Appeal Tribunal (CAT) kicked off, a number of carriage disputes have arisen. So-called 'carriage disputes' arise when there are two or more competing proposed class representatives (PCRs) seeking certification (and therefore 'carriage') of overlapping class actions.

Book Launch – A Commentary on the LCIA ARB Rules Edition 2

25 Apr 2023

We are delighted to welcome you to join us for the official book launch of "A Commentary on the LCIA Arbitration Rules" written by Philip Clifford KC and Shai Wade.

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.

Hong Kong – At a glance: major changes to cross-border enforcement of judgments in Hong Kong and mainland China

Published on 17 Feb 2023. By Samuel Hung, Partner and Anson Lo, Associate

The highly anticipated Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (the Ordinance) is set to take effect in mid-2023. Once the Ordinance is in place, applicants will be able to enforce a broader range of mainland judgments in Hong Kong by way of a registration procedure and vice versa in relation to Hong Kong judgments in mainland China.

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 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.

Financial Services Litigation Hong Kong Chapter

Published on 27 Jul 2022. By Jonathan Crompton, Partner and Lillian Wong, Associate

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).