Jones Day (JD Supra United Kingdom)
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Improvement Notices and Cladding in the UK: What You Need to Know
The Situation: To discharge their statutory responsibilities, and as a result of increasing pressure from central government, local authorities ("LAs") are turning to section 11 and 12 of the Housing Act 2004 ("HA 2004") as a means of enforcing against private-sector owners of properties with potential fire safety defects or combustible cladding. Improvement notices in particular can be a highly...
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"Not a Cat’s Chance in Hell": English Court Clarifies Approach to Escalation Clauses
The Situation: On 15 February 2021, the English High Court handed down a key judgment in Republic of Sierra Leone v. SL Mining Ltd on the issue of whether non-compliance with a clause containing a pre-arbitration procedural requirement—also sometimes known as a multi-tier dispute resolution clause, or an escalation clause—could form the basis of a jurisdictional challenge to an arbitral award...
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UK Supreme Court Limits Serious Fraud Office's Extraterritorial Powers
The Issue: The UK Supreme Court was asked to decide whether section 2 of the Criminal Justice Act 1987 granted the Serious Fraud Office ("SFO") powers to compel the production of documents held outside the United Kingdom. Going Forward: The SFO cannot use its section 2 powers to compel the production of material held outside the jurisdiction by a non-UK citizen or registered company. It must
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A Multifaceted Maze: The FCA's Role and Powers in Distressed Situations
The last five years have seen a substantial increase in the number and variety of regulated firms operating in the United Kingdom, with the development in particular of financial services provided by new technology firms, asset managers, challenger banks, payment providers and e-money issuers. At the same time, an increasing number of UK Financial Conduct Authority ("FCA") regulated firms have...
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Restoration of Crown Preference and Erosion of the English Floating Charge
With effect from December 1, 2020, Her Majesty's Revenue and Customs ("HMRC") ranks ahead of floating charge holders and unsecured creditors with respect to recovering certain pre-insolvency taxes from an insolvent business ("Crown preference"). Directors can also now incur personal liability for the unpaid taxes of an insolvent company where they are involved in tax avoidance, evasion, or...
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Temporary Post-Brexit Regime Applies to UK Financial Institutions Operating in Italy
In Short The Situation: As of the close of the Brexit transition period ending on December 31, 2020 ("Withdrawal Date"), UK banks, UK investment firms, and UK electronic money institutions ("UK Financial Institutions") can no longer operate in Italy under the principle of mutual recognition.
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UK Takeover Panel's Code Committee Proposes Changes to Treatment of Offer Conditions and Offer Timetable
The Code Committee ("Code Committee") of the UK Takeover Panel ("Panel") has published a consultation paper proposing a number of amendments to the City Code on Takeovers and Mergers ("Code") which, if adopted, will mark a significant departure from the current rules. The Code Committee is inviting responses to the consultation paper by 15 January 2021 and expects to publish the final amendments...
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UK Financial Services Bill Includes New Powers for FCA to Manage LIBOR Transition
The proposed powers for the Financial Conduct Authority ("FCA") to manage the London Interbank Offered Rate ("LIBOR") transition should address so-called "tough legacy" contracts involving UK participants but could also have broader consequences for other agreements. On 21 October 2020, the UK Government introduced its proposed Financial Services Bill to Parliament, which includes significant...
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A Planning Condition Requiring Dedication of Land for Public Use is Unlawful
On 16 October 2020, the English Court of Appeal delivered judgment in DB Symmetry v Swindon Borough Council & Another, confirming that a planning condition requiring dedication of land for public use without compensation is unlawful, and preferring the appellant's interpretation of the condition which avoided that result. On 16 October 2020, the English Court of Appeal delivered judgment in DB
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Legislative Update: Enactment of the UK Corporate Insolvency and Governance Act
On June 25, 2020, the new UK Corporate Insolvency and Governance Act ("Act") became law after it was given Royal Assent by Queen Elizabeth II. The changes introduced by the Act will have a significant impact on the future direction of the UK restructuring market.
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English High Court Rules for Policyholders in FCA's COVID-19 Test Case Alert
In a significant victory for policyholders, on 15 September 2020, the English High Court delivered judgment in the UK Financial Conduct Authority's ("FCA") COVID-19 Business Interruption Test Case. In a significant victory for policyholders, the English High Court handed down judgment in the UK FCA's COVID-19 Business Interruption Test Case ("Test Case"). Brought on behalf of thousands of...
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UK Antitrust Authority Recommends New Regulations for Online Platforms
The UK Competition and Markets Authority ("CMA") Final Report in the Market Study into Online Platforms and Digital Advertising proposes the creation of a new regulatory authority and additional regulations to govern the conduct of online platforms funded by digital advertising, as well as specific market interventions. While some of the CMA proposals parallel the recommendations of other...
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UK Launches Independent Sanctions Policy With Focus on Human Rights Violations
The Situation: On 6 July 2020, the United Kingdom announced its first set of independent sanctions, following its departure from the European Union. The new sanctions focus on individuals and entities identified by the UK government as connected to alleged human rights violations, akin to the Magnitsky and Global Magnitsky sanctions programs in the United States. The Result: This is an...
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Latest Developments in Dealing With "Tough Legacy" IBOR Transition Contracts
The United Kingdom and European Union look to give powers to regulators, rather than using direct legislation, to deal with existing contracts that prove unable to convert or be amended to include fallbacks ahead of IBOR discontinuation. United Kingdom - On June 23, 2020, the UK Government announced that it intends to bring forward legislation to amend the UK Benchmark Regulation to give...
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English Court to Provide Guidance on Whether Common UK Insurance Policy Wordings Cover COVID-19 Claims
The UK Financial Conduct Authority ("FCA") has asked the English High Court to give an urgent declaratory judgment to address "significant uncertainty" on the scope of common business interruption insurance policy wordings in the UK market and whether they apply to COVID-19-related losses. The Court is also asked to consider the extent of covered losses under certain insurance extensions and...
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The UK’s Digital Services Tax: Where Are We Now?
Current Status: The UK Government is moving ahead with its implementation of the Digital Services Tax ("DST") despite concerns raised by the United States and the Organisation of Economic Co-operation and Development ("OECD") earlier in the year. The Proposal: The UK's DST is charged at 2% on gross UK-generated revenues of large businesses providing a social media service, search engine, or...
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Stretching Leverage: Holdco PIK Financing Instruments
Key Points - Holdco PIK financing instruments may present an attractive and/or alternative source of capital for private equity sponsors to finance acquisitions or to facilitate dividend recapitalisations. Creditors attracted to the higher yield typically offered by these instruments need to understand the increased risks involved in holding such instruments—in particular, their structurally...
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Turning Tides in FCA SMCR Enforcement: Easier Targets, Non-Financial Misconduct, Changing Priorities
The Situation: The Financial Conduct Authority ("FCA") is extending the Senior Managers and Certification Regime ("SMCR") to FCA solo-regulated firms on 9 December 2019 and has also released a number of statements in relation to non-financial misconduct which apply to all SMCR regulated firms. The Result: FCA enforcement action in relation to SMCR is likely to increase from its current subdued
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Data Protection: Reducing the Risk of Disruption on a "No Deal" Brexit
The Situation: The United Kingdom is due to leave the European Union ("EU") on 31 October 2019. Negotiations between member states of the EU excluding the United Kingdom ("EU27") and the United Kingdom are ongoing, but it is not clear whether there will be an agreed departure or a "no deal" Brexit. The Result: Businesses need to consider how a "no deal" Brexit would affect data transfers that...
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UK Draft Bill Addresses Criminal Money Laundering Through Overseas Entities
The Situation: The purchase of property in the United Kingdom has, for various reasons, become an attractive mechanism by which to launder criminal proceeds through overseas entities. The Solution: A draft bill is currently being considered which seeks to tackle the issue and increase transparency with the introduction of a register to record information about the beneficial ownership...
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Protecting Your Trade Secrets in the UK
The Situation: Protecting intangible property can be extremely challenging, but significant and effective tools are available under English law to minimize significant harm to entities that have been victimized by a data breach in the UK. The Result: The Trade Secrets Directive has harmonised the treatment of confidential business information in the EU so as to ensure that the scope of...
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CFTC Clears Decks for "No Deal" Brexit
The Commodity Futures Trading Commission ("CFTC") extends no-action and exemptive relief from the European Union to the United Kingdom. On April 5, 2019, the CFTC's Divisions of Clearing and Risk, Market Oversight and Swap Dealer and Intermediary Oversight extended existing no-action and exemptive relief for European Union institutions and regulatory schemes to their United Kingdom equivalents.
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Antitrust Alert: UK Competition & Markets Authority Issues First Order Reversing Pre-Closing Integration
The UK Competition & Markets Authority ("CMA") issued its first order requiring parties to a completed merger to reverse pre-closing integration that the CMA believes prejudiced its ability to assess the deal's impact on competition in the UK. This case is a reminder that parties who integrate or close a transaction prior to UK merger clearance risk an unwinding order in complex merger reviews.
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English Court of Appeal Upholds "The Gibbs Rule"
The Situation: In Bakhshiyeva v Sberbank of Russia, a debtor sought to restructure English law-governed debts pursuant to an Azerbaijani restructuring proceeding. In order to prevent certain dissenting creditors from commencing enforcement proceedings against the debtor in the UK, the debtor asked the English court to provide an indefinite stay. The Result: The Court of Appeal reinforced the...
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"Serious Irregularity" in Bank Merger Matter Triggers English Commercial Court's Award Set-Aside
The Situation: A bank owner and an investor entered into an agreement in which the investor would provide the funds necessary for a merger of two banking entities in return for a minority interest in the acquired bank. The Issue: Upon completion of the merger, the investor did not take the minority interest, presenting what the bank owner saw as a breach of contract. Arbitration followed,...
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Muddy Road Ahead Part II: Liability Legislation for Autonomous Vehicles in the United Kingdom
The Situation: The United Kingdom is positioning itself as the "go to" location to develop, test, and drive automated vehicles, but questions remain as to how its existing product liability regime should respond to this developing technology. The Plan: The UK Government expects to see fully self-driving cars on UK roads by 2021. It has already enacted legislation to provide an insurance model...
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UK Cites Security Reasons for Proposed Deal Notification Regime
A consultation paper on national security and investment published by the UK government advocates extensive changes to current provisions regarding foreign investment in UK businesses. In essence, the proposed changes would allow the government to stop proposed deals where "hostile actors" might use ownership of, or influence over, businesses and assets to harm the United Kingdom. The paper...
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A New Direction in the United Kingdom's Fight Against Economic Crime?
The Situation: High-profile money laundering incidents have caught the attention of lawmakers and enforcement authorities in the United Kingdom. The Result: A new director at the Serious Fraud Office ("SFO"), the formation of the National Economic Crime Centre ("NECC"), and the introduction of Unexplained Wealth Order ("UWOs") are indicative of the seriousness of the United Kingdom's efforts...
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UK Supreme Court Upholds "No Oral Modification Clauses," Affirms Written Contract Variations Requirement
The recent decision of the UK Supreme Court in Rock Advertising Limited v MWB Business Exchange Centres Limited [2018] UKSC 24 highlights the need for strict observance of No Oral Modification clauses in agreements.
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UK Changes Merger Control Regime for Foreign Takeovers
The Situation: New legislation came into force on 11 June 2018, allowing the UK Government to scrutinise a wider range of mergers that may raise public interest or national security issues. The Context: This is the outcome of the first part of the UK Government's review into national security and infrastructure investment by foreign companies.