WilmerHale (JD Supra United Kingdom)
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Bribery Act 2010: Ten Years On
Ten years have passed since the introduction of the UK’s primary anti-corruption law, the Bribery Act 2010 (“the Act”). This article examines the extent to which the Act has lived up to its billing as the international “gold standard” for bribery legislation and looks ahead to future trends in UK economic crime enforcement. Originally published by Fraud Intelligence - May 19, 2021.
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CVLC Three Carrier Corp v Arab Maritime Petroleum Transport Company: The English Commercial Court Provides Guidance on Arbitration Appeals on a Point of Law
The recent case of CVLC Three Carrier Corp & Anor v Arab Maritime Petroleum Transport Company [2021] EWHC 551 (Comm) is a rare example of a successful challenge under section 69 of the Arbitration Act 1996 (Act). Section 69 allows parties to an arbitration seated in England and Wales to appeal to the English courts on a question of law arising out of an arbitral award.
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Adapting to Brexit: The New EU-UK Trading Relationship
This Alert gives a high level overview of the new trading relationship between the European Union (‘EU’) and the United Kingdom (‘UK’) for goods and service supply. The EU and the UK reached provisional agreement on a trade agreement in December 2020, and the transition period for the UK’s exit from the EU (‘Brexit’) came to an end on 31 December 2020. The UK Parliament approved the agreement
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UWOs three years on: Underused and overpriced
In January 2018 the Criminal Finances Act 2017 (“the Act”) came into force. The Act brought in a number of important legal developments, including Asset Freezing and Forfeiture Orders (“AFFOs”) and the offence of failure to prevent tax evasion. But perhaps the most significant, or at least widely publicised, aspect of the Act was the introduction of Unexplained Wealth Orders (“UWOs”), which can...
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Republic of Sierra Leone v SL Mining Ltd: The English Commercial Court Rules On The Effect Of Non-Compliance With A Multi-Tier Dispute Resolution Provision
On 15 February 2021, the English Commercial Court in Republic of Sierra Leone v. SL Mining Ltd [2021] EWHC 286 (Comm) ruled on the effect of non-compliance with a multi-tier dispute resolution provision. The decision settles a difficult question of English arbitration law.
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Halliburton v Chubb: U.K. Supreme Court Rules on Arbitrator Bias
On 27 November 2020, the U.K. Supreme Court in Halliburton Company v Chubb Bermuda Insurance Ltd (formerly known as Ace Bermuda Insurance Ltd) [2020] UKSC 48 ruled on the approach under English law to determining whether an arbitrator’s failure to make disclosure of appointments in multiple arbitrations with overlapping subject matter and only one common party gave rise to justifiable doubts as...
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Can Kicking and Buck Passing: Reform of Corporate Criminal Liability
In January 2017, the UK Government issued a consultation paper calling for evidence on reforming corporate criminal liability for economic crime. Nearly four years later, on 3 November 2020, the Government’s response was finally issued.
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Employers Urged to Check UK Furlough Claims as Scheme Comes to an End
On October 31, 2020, the Coronavirus Job Retention Scheme (CJRS, widely known as the Furlough Scheme) comes to an end. The CJRS entitled qualifying employees whose work was affected by the pandemic to receive 80% of their salaries, capped at £2,500 per month, from the UK Government.
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Fresh inquiry into economic crime will push UK further towards expansion of ‘failure to prevent’ legislation
On 23 October, the Treasury Committee launched a further inquiry to review what progress has been made in combatting economic crime. While the inquiry is focused on the effectiveness of the existing anti-money laundering (AML) regime, it is likely the Committee will use the review to increase the pressure on Government to implement legislation criminalising the failure of organisations to prevent
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Enka v Chubb: U.K. Supreme Court Rules on Law Governing Arbitration Agreements
On 9 October 2020, the U.K. Supreme Court in Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubb [2020] UKSC 38 ruled on the English law approach to determining the law governing an arbitration agreement. The Supreme Court’s decision settles a vexed question of law that has given rise to conflicting English Court of Appeal authority.
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English High Court reaffirms dominant purpose requirement for claims to litigation privilege
In the recent decision of The Financial Reporting Council Limited v Frasers Group Plc, the English High Court held that documents detailing advice received from accountants in respect of a company’s tax structure were not protected from disclosure by litigation privilege because they were not prepared for the sole or dominant purpose of litigation, notwithstanding that litigation over the company’
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FCA’s statement on cannabis related businesses POCA application
On Friday 18 September the FCA issued a statement, setting out its approach to assessing applications for listing made by cannabis-related businesses. The statement is short and will be followed in due course by a consultation on what guidance should be issued.
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Comfort and surprise: two English High Court decisions of note concerning legal professional privilege
Two English High Court decisions have addressed separate but important points of principle relevant to the availability and application of English legal professional privilege (“privilege”) which are particularly relevant for parties engaged in conducting internal investigations. In PJSC Tatneft v Bogolyubov and others [2020] EWHC 2437 (Comm) (“Tatneft”), the Commercial Court held that...
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Revised LCIA Arbitration Rules
The London Court of International Arbitration (LCIA) has released a revision of its arbitration rules. The last revision of the LCIA Rules was in 2014. The revised LCIA Rules are effective from 1 October 2020 and apply to arbitration proceedings commenced after that date (the “Revised Rules”). These revisions cover a wide range of issues and include a number of new provisions that address...
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Annual return – UK National Crime Agency reports
On 21 July 2020 the National Crime Agency (“NCA”) released its Annual Report and Accounts 2019-20 (“the Report”). The Report outlines financial information and other data, and provides a snapshot of the NCA’s performance and wider enforcement patterns. Originally published in Money Laundering Bulletin - August 10, 2020.
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Brexit - Competition Law in the UK During the Transition Period and After
The United Kingdom (UK) left the European Union (EU) on 31 January 2020. Since then, under the EU-UK Withdrawal Agreement, a transition period has been in force, in principle until 1 January 2021. During this period most EU law, including its competition law, continues to apply in the UK. The Withdrawal Agreement allows the EU and the UK to extend the transition period by one or two years,...
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Cross-border information-sharing - insubstantial guidance for UK corporates
On 12 May 2020 the UK belatedly published its statement on cross-border information-sharing within corporate groups (the Statement). This one-page document primarily consists of general acknowledgements of the importance of this subject and restatements of the existing law.
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A powerful lesson in UK Data Protection law restrictions
The protections afforded by the GDPR and the UK’s 2019 Data Protection Act (‘DPA’) are not naturally associated with efforts to frustrate and restrict the use of the death penalty internationally. However, the recent Supreme Court judgment, Elgizouli v. Secretary of State for the Home Department [2020] UKSC 10, exemplifies how data protection law may have far wider effects than one would...
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Cyber issues on the FCA’s radar
On 11 March 2020 the FCA published new research on cyber security. The research is the product of its Cyber Coordination Groups (CCGs) which were created through an FCA initiative in 2017. The CCGs bring together over 185 financial services firms, grouped by various sub-sectors. Originally published by Compliance Monitor - May 6, 2020.
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High Court Ruling May Impede Unexplained Wealth Order Use
On 8 April 2020 the NCA suffered its first setback in using Unexplained Wealth Orders (‘UWOs’). The Respondents in NCA v Baker successfully applied to discharge UWOs relating to three properties in London, all held by offshore trusts. Originally published in Law360 - May 4, 2020.
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Penalising the Failure to Prevent Human Rights Abuses
While debate rumbles on over the extension of ‘failure to prevent’ offences into the broad spectrum of financial crime, including fraud and money laundering, some have called for their introduction into an altogether different sphere: human rights. Last month, the British Institute of International and Comparative Law published a report describing its vision for how the model could operate to...
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Regulating Cryptoassets May Be Harder Than FCA Expects
The Advancement of Digital Assets and Addressing Financial Crime Risk at New York University School of Law about tackling financial crime and imposing anti-money laundering (“AML”) regulation on the emerging market for cryptoassets. Using the FCA’s umbrella term of “cryptoassets” – encompassing all assets underpinned by cryptography, the most well-known of which are digital currencies such as...
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Money laundering: Buyer secrecy in the London art market
The introduction of the Fifth Money Laundering Directive on the 10th January 2020 brought the art market into the fold of regulated sectors for anti-money laundering purposes. The new law, which amends the existing Regulations (The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017), requires “art market participants” to conduct due diligence...
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Unleash the Cranky Alpaca: Legal Advice Privilege and Multiparty Emails
In Civil Aviation Authority v R (on the application of Jet2 Ltd) 2020 EWCA Civ 35, the English Court of Appeal provided clear guidance on the position of Legal Advice Privilege and multiparty emails. Further, it confirmed that in order for a document to attract Legal Advice Privilege (broadly the equivalent of attorney-client privilege in the US), the party claiming privilege must show that...
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Avoid Shades of Grey: Anti-Money Laundering Regulation Comes to the Art Market
A new law, which came into force on 10 January, has ushered in material changes to the regulation of the art market, extending the application of the UK’s anti-money laundering legislation to the sector. The new law, incorporating the Fifth Money Laundering Directive, introduces increased compliance requirements and the risk of criminal liability for businesses operating in the art market,...
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I’m Dreaming of a White (Collar) Christmas: 2019 in Review
The year 2019 has been something of a mixed bag for the UK’s criminal and regulatory authorities. While the Serious Fraud Office (“SFO”) and Financial Conduct Authority (“FCA”) appear to have taken involuntary sabbaticals from successful criminal prosecutions, the National Crime Agency (“NCA”) is quietly lining the national purse with the proceeds of forfeiture orders obtained through Unexplained
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Alstom UK Subsidiary Sentenced: Do the Incentives for Resolving Corporate Wrongdoing by Negotiated Settlement Always Stack Up?
On 25 November at a sentencing hearing at Southwark Crown Court, Alstom Network UK Limited (ANUK) – a subsidiary of French rail conglomerate Alstom – was fined £15m, plus £1.4m in costs, for conspiring to make corrupt payments in relation to contracts in Tunisia, following a conviction at a contested trial in April 2018. The sentencing concludes a decade-long case brought by the Serious...
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International Comparative Legal Guide to International Arbitration 2019 - Chapter Thirty Two: England & Wales
What, if any, are the legal requirements of an arbitration agreement under the laws of your jurisdiction? There are no formal requirements for an arbitration agreement to be valid. However, the Arbitration Act 1996 (the “1996 Act”), which governs arbitration proceedings in England and Wales, only applies to arbitration agreements that are in writing (section 5(1)). The 1996 Act contains a...
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Teething Problems: The SFO’s Annual Report and Leadership Review
Last month, the SFO published its Annual Report for the year ended 31 March 2019 (the Annual Report), the first since Lisa Osofsky began her tenure as Director in August 2018. The Annual Report was swiftly followed by the publication of a CPS Inspectorate “Review into Leadership” at the SFO, commissioned in December 2018 as a result of declining staff engagement scores (the Leadership Review).
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UK Serious Fraud Office Publishes Corporate Co-Operation Guidance
On 6 August 2019, the UK Serious Fraud Office (‘SFO’) published Corporate Co-operation Guidance (‘Guidance’). This Guidance is designed to assist companies considering whether to self-report corporate wrongdoing to the SFO and, if so, how to achieve maximum co-operation credit to help avoid prosecution, or be offered the opportunity to enter into a Deferred Prosecution Agreement (‘DPA’).