Latham.London

Fifteen Asia-Pacific Countries Form a New Trading Bloc

Posted in Commercial

Accounting for 30% of the world’s population and 30% of global GDP, the bloc is larger than the European Union.

By Oliver E. Browne and Isuru Devendra

As the United Kingdom continues to negotiate trade agreements with the European Union and other trading partners, fifteen Asia-Pacific countries recently signed a new multilateral trade agreement named the Regional Comprehensive Economic Partnership (RCEP). That agreement, the subject of negotiations since 2012, is expected to shape the Asia-Pacific economy in the decades ahead by establishing a single set of harmonised and predictable trading rules applicable across developed and developing economies in the region. The new framework presents economic opportunities for many countries, including those outside the Asia-Pacific region, and provides the United Kingdom and its private sector new opportunities in a post-Brexit economy. Continue Reading

What Rules Will Apply to Jurisdiction and the Enforcement of Judgments After Brexit? Part Three

Posted in Brexit, Dispute Resolution

English law, courts and arbitral tribunals may become more relevant and popular after Brexit, not less.

By Oliver Browne, Sophie J. Lamb QC, Sanjev D. Warna-kula-suriya, and Tom Watret

Introduction

English law, courts, and arbitral tribunals may become more relevant and popular after Brexit, not less, and parties should continue to feel confident about including English governing law and jurisdiction clauses in their agreements.

In particular, the breadth of English common law jurisdiction and the powerful tools at the English courts’ disposal – notably, the anti-suit injunction and damages for breach of jurisdiction clauses – are likely to ensure that jurisdiction clauses in favour of English courts and tribunals are complied with. Continue Reading

High Court Determines Exceptions to ‘Without Prejudice’ Privilege in Recent Disputes

Posted in Commercial

Two cases illustrate the narrow scope of application for exceptions to the without prejudice rule of legal privilege.

By Stuart Alford and Clare Nida

Background

In two recent judgments, the High Court found exception to the ‘without prejudice’ rule of legal privilege. The rule protects statements made by parties to a dispute (whether written or oral statements) in a genuine attempt to settle the dispute. There are certain situations in which this public policy justification will be outweighed by other factors if the fairness of judicial proceedings is at risk. Motorola Solutions, Inc. v Hytera Communications Corporation Ltd[1] and Berkeley Square Holdings v Lancer Property Asset Management Limited[2] clarify the scope of certain aspects of these exceptions, namely the “unambiguous impropriety”, misrepresentation/fraud, and the “Muller” exceptions. Continue Reading

Court of Appeal: Professional Privilege Must Pass the “Dominant Purpose” Test

Posted in Dispute Resolution

The Court narrowly interprets dominant purpose to exempt general tax advice from legal privilege.

By Oliver E. Browne and Clare Nida

In Financial Reporting Council Ltd v Frasers Group Plc (formerly Sports Direct International Plc) [2020] EWHC 2607 (Ch), the High Court handed down the latest ruling in relation to the Financial Reporting Council’s (FRC) ongoing investigation into Grant Thornton’s audit of Sports Direct International. The Court’s previous ruling on this matter was discussed in this Latham.London blog post. Continue Reading

HM Treasury Consults on Post-EU Financial Services Regulatory Framework

Posted in Brexit

The UK government signals a diversion from the onshored regime towards a more flexible financial services regulatory framework.

By Rob Moulton, Anne Mainwaring, and Anna Lewis-Martinez

HM Treasury has published a consultation paper marking the start of Phase II of its financial services review, which will focus on the broader regulatory framework for financial services regulation in the UK post-Brexit.

HM Treasury acknowledges the drawbacks of the EU approach to financial services regulation. Namely, this approach has complicated the operation of the regulatory model under the Financial Services and Markets Act 2000 (FSMA), which HM Treasury considers to be an appropriate framework for financial services regulation in the UK after the end of the transition period. HM Treasury therefore proposes an adaptation of the FSMA model as the most effective approach to the post-EU regulatory framework, acknowledging that the onshored regime of EU legislation will fail to provide an adequate long-term solution for the UK’s post-EU financial services regulatory framework. Continue Reading

English Court of Appeal Overturns Decision that Guaidó Appointed Central Bank of Venezuela Board Controls Gold Reserves in England

Posted in Dispute Resolution

The decision confirms that the UK government can recognise one person as de jure head of state of a foreign state and implicitly recognise another person as the de facto head of state.

By Charles Claypoole and Isuru Devendra

The English Court of Appeal’s recent decision in The “Maduro Board” of the Central Bank of Venezuela v The “Guaidó Board” of the Central Bank of Venezuela & Ors[i] concerned who controls Venezuela’s gold reserves in England: the ad hoc board of the Central Bank of Venezuela appointed by Mr. Juan Guaidó (the Guaidó Board) or the board of the Central Bank of Venezuela appointed by Mr. Nicolás Maduro (the Maduro Board). Continue Reading

Chinese Court Decision Reinforces Need for Clear and Precise Drafting of China-Related Arbitration Agreements

Posted in Dispute Resolution

Shijiazhuang Intermediate People’s Court declares arbitration agreement providing for ICC Rules arbitration seated in China invalid.

By Ing Loong Yang, Oliver Browne, and Isuru Devendra

In a dispute between Hebei Zhongxing Automobile Manufacturing Co., Ltd. (HZAM), a Chinese company, and Automotive Gate FZCO (FZCO), a UAE company, the Shijiazhuang Intermediate People’s Court declared invalid two related arbitration agreements that provided for arbitration in accordance with the Arbitration Rules of the International Chamber of Commerce (ICC) and to be held “in China”. Continue Reading

CONSOB Again Extends Reporting Requirements of Relevant Shareholdings in Certain Italian-Listed Issuers

Posted in EU and Competition, Finance and Capital Markets

The more stringent reporting obligations for certain Italian-listed issuers will continue until January 13, 2021.

By Antonio Coletti, Isabella Porchia, Guido Bartolomei, and Marta Negro

The Italian Securities Commission (CONSOB) has adopted Resolution 21525, extending for a period of three months — from October 13, 2020, to January 13, 2021 — the provisions of Resolutions 21326 and 21327 of April 9, 2020, as later extended by Resolution 21434 of July 8, 2020 (the Previous Resolutions). The provisions imposed stricter reporting obligations of relevant shareholdings in certain Italian-listed issuers that were selected taking into account their high current market value and/or spread ownership structure (see updated lists, available only in Italian, set out in CONSOB Decisions 39/2020 and 40/2020).

CONSOB reported that this further extension was motivated by the continuing uncertainty about the evolution of the economic and financial situation generated by the COVID-19 pandemic. Continue Reading

What Rules Will Apply to Jurisdiction and the Enforcement of Judgments After Brexit? Part Two

Posted in Brexit, Dispute Resolution

Four recent developments highlight the benefit of arbitration clauses amidst uncertainty about choice of court clauses.

By Oliver Browne and Tom Watret

Introduction

With the end of the Brexit transition period on 31 December 2020 fast approaching, four new important and interrelated developments have highlighted uncertainty about which courts will have jurisdiction in cross-border disputes and the enforcement of judgments from 1 January 2021:

  1. On 27 August 2020, the EU Commission published a revised Notice setting out its view of how various conflict of laws issues will be determined post-Brexit, including jurisdiction and the enforcement of judgments (the EU Notice).[1]
  2. On 28 September 2020, the UK deposited its instrument of accession to the Hague Convention on Choice of Court Agreements 2005 (Hague Convention 2005), ensuring continuity in application of the Hague Convention 2005 after the end of the Brexit transition period.[2]
  3. On 30 September 2020, the UK Ministry of Justice published “Cross-border civil and commercial legal cases: guidance for legal professionals from 1 January 2021” (the MoJ Guidance),[3] which is the UK equivalent to the EU Notice.
  4. On 1 October 2020, the deadline passed for the UK’s accession to the Lugano Convention 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention 2007) to be approved in time for it to apply as of the end of the Brexit transition period, absent some work-around agreed at the time of any eventual Free Trade Agreement (FTA).

Continue Reading

‘Iniquity Exception’ Extends to Breaches of a Director’s Statutory Duty

Posted in Dispute Resolution

English High Court holds that alleged breaches of a director’s statutory duties can engage the ‘iniquity exception’, which disapplies legal professional privilege under certain conditions.

By Stuart Alford QC and George Schurr

In Barrowfen Properties v Girish Dahyanhai Patel & Ors.,[i] the English High Court held that the ‘iniquity exception’ to legal professional privilege will become engaged if:

  • An applicant can establish a “strong prima facie case” that a respondent director has breached at least one of their statutory directors’ duties.[ii]
  • Either of the following is true:
    • Those allegations involve fraud, dishonesty, bad faith, or sharp practice.
    • The director consciously or deliberately preferred their own interests over the interests of the company, and did so “under a cloak of secrecy”.

The court held that the appropriate standard of proof in such circumstances (“a strong prima facie case”) is a lower threshold than both (i) the balance of probabilities, and (ii) the summary judgment test (no real prospect of success). Continue Reading

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