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English Commercial Court: Foreign Judgment Did Not Establish Issue Estoppel

Posted in Commercial, Dispute Resolution

Parties may struggle to establish issue estoppel based on a foreign judgment, even when they agreed exclusive jurisdiction of English courts.

By Oliver Browne, Yasmina Vaziri, and Tom Watret

MAD Atelier International BV v. Manès [2020] EWHC 1014 (Comm) considers key aspects of the law of issue estoppel and abuse of process in relation to foreign judgments. The decision highlights that even when parties have chosen exclusive jurisdiction clauses in favour of the English courts in their transaction documentation, they could unexpectedly find themselves re-litigating issues in multiple courts. It also shows that whether issue estoppel will be available, or whether another party can be prevented from “abusively” re-litigating, in England, issues that have already been determined by a foreign court, may depend on the foreign court’s view as to the binding and preclusive effect of its own decisions. This introduces an element of uncertainty into the finality of international litigation, which is why parties in multi-jurisdictional disputes should always take advice early. Continue Reading

Latest COVID-19 Taskforce Update Sets Out CMA’s Response to Principal Areas of Concern

Posted in EU and Competition

The taskforce continues to receive and monitor complaints about unfair practices in relation to cancellations and refunds and potentially unjustifiable price rises.

By John D. Colahan and Anuj Ghai

On 21 May, the CMA released a further update setting out the work of its COVID-19 Taskforce in responding to complaints regarding competition and consumer protection problems arising from the novel coronavirus and measures taken to contain it. This follows a 30 April report (summarised here) which set out the programme of work the CMA intended to undertake to deal with complaints about unfair practices in relation to cancellations and refunds.

Based on the complaints received and additional information received from consumer bodies, such as Which? and Citizens Advice, the CMA’s principal concerns continue to relate to unfair practices in relation to cancellations and refunds and unjustifiable price increases, particularly for essential goods. The CMA notes that from 10 March to 17 May it was contacted more than 60,000 times about coronavirus-related issues; further, the rate at which consumers are contacting the CMA has increased in recent weeks suggesting that problems continue to persist.

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Annual General Meetings: We’ll Meet Again, Don’t Know Where, Don’t Know When

Posted in Finance and Capital Markets

BEIS and FRC released further updates on how companies can hold meetings during the COVID-19 pandemic.

By James Inness, Anna Ngo, and Connor Cahalane

On 14 May 2020, the Department for Business, Energy & Industrial Strategy (BEIS) and the Financial Reporting Council (FRC) released a second Q&A in relation to proposed legislative measures to assist companies in holding their annual general meetings (AGMs) in light of the COVID-19 restrictions. This Q&A follows a 28 March announcement from Alok Sharma, the Secretary of State for BEIS, stating that the government would bring forward legislation as soon as possible to assist companies facing difficulty meeting statutory obligations to hold AGMs because of COVID-19 restrictions. This latest Q&A is to be read in conjunction with the first joint BEIS/FRC Q&A published on 17 April. Continue Reading

Italy Introduces Multiple Voting Shares for Listed Companies

Posted in Finance and Capital Markets

The Recovery Decree allows Italian companies with equity listed on regulated markets to issue multiple voting shares to enhance competition with foreign countries and protect the Italian markets.

By Antonio Coletti, Isabella Porchia, and Guido Bartolomei

The Recovery Decree dated May 13, 2020, introduced the ability for Italian listed companies to issue multiple voting shares to enhance competition with foreign jurisdictions, discourage the transfer of the corporate seat to and listing in countries permitting such voting structures, and protect the Italian markets.

This measure follows and accompanies the measures of the Liquidity Decree, which strengthened the government’s golden power rules and the reporting requirements of relevant shareholdings in Italian listed issuers (for details, see Italy Adopts Liquidity Decree to Support Italian Companies). Continue Reading

Italian Recovery Decree Facilitates Capital Increases by Italian Companies

Posted in Finance and Capital Markets

The Recovery Decree aims to rapidly raise equity financing and counter liquidity shortage.

By Antonio Coletti, Isabella Porchia, and Guido Bartolomei

Law Decree, approved on 13 May 2020 (Recovery Decree) introduces provisions facilitating capital increases by Italian private and listed companies to rapidly raise equity financing and to counter liquidity shortage.

In particular, article 45-bis of the Recovery Decree (in the draft available pending publication in the Official Gazette) provides: Continue Reading

Credit Insights – Delay or Disclose? Managing Default Risk From Qualified Audit Opinions in the COVID-19 Era

Posted in Finance and Capital Markets

Boards of struggling companies (and their auditors) must navigate choppy waters in terms of finalising their audited accounts in the midst of a global downturn.

By James Chesterman, Dominic Newcomb, Helena Potts, and David Cooper-Parry

The global downturn triggered by the COVID-19 pandemic continues to pose challenges to significant swathes of the worldwide economy. Companies across many industries and geographies have seen a precipitous decline in their operations and turnover.

Irrespective of liquidity positions, directors will also need to focus on whether they are able to publish “going concern” accounts and what their auditors’ opinion on those accounts will be. If directors can conclude a company is a going concern at the time of the audit, but harbour doubts about the future, this must be disclosed in the notes to the financial statements. This in turn can impact the basis on which both the accounts are published and the auditors’ opinion thereon prepared. Continue Reading

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

Posted in Brexit, Dispute Resolution

The UK has taken steps to accede to the Lugano Convention 2007, as maintaining the status quo under the Brussels Recast Regulation 1215/2012 will no longer be an option once the transition period expires.

By Oliver Browne, Sebastian Seelmann-Eggebert, and Tom Watret

The UK has recently requested to join the Lugano Convention 2007, which is the UK’s preferred regime for governing questions of jurisdiction and the enforcement of judgments with EU countries post-Brexit. These rules will be critically important for all parties when they consider which jurisdiction clauses to include in their contracts.

This blog post explains what the Lugano Convention is, provides an update on recent developments in the accession process, and highlights some important differences between the Lugano Convention and the current regime. Continue Reading

Court of Appeal Clarifies Legal Professional Privilege

Posted in Dispute Resolution

The Court ruled on the “dominant purpose” test and offered guidance on the status of multiparty emails, and attachments.

By Oliver Browne and Clare Nida

Two recent Court of Appeal judgments have sought to clarify, and offer practical guidance relating to, legal professional privilege.

In Civil Aviation Authority v. R (on behalf of the application of Jet2.com Ltd) [2020] EWCA Civ 35, the Court considered first whether the “dominant purpose” test still applies in order for a communication to fall within the scope of legal advice privilege. Second, in light of its consideration of this issue, the Court examined the proper approach to determining the status of communications among multiple recipients, and whether emails and attachments hold the same status.

Soon after, in Sports Direct International plc v. The Financial Reporting Council [2020] EWCA Civ 177, the Court overturned a first instance decision that the production of the client’s privileged documents to the regulator would not infringe the legal professional privilege belonging to the client. Continue Reading

CMA COVID-19 Taskforce to Investigate Unfair Cancellation and Refund Practices

Posted in EU and Competition

The CMA has launched a programme of work to investigate reports of businesses failing to respect cancellation rights during the COVID-19 pandemic.

By John D. Colahan and Anuj Ghai

The CMA’s COVID-19 Taskforce Update on 24 April 2020 noted that its COVID-19 Taskforce had received a significant volume of complaints about unfair practices in relation to cancellations and refunds. On 30 April, the CMA released a further update setting out the programme of work it intends to undertake to deal with the issues raised. The CMA will act under its consumer protection powers, rather than under competition law, to deal with unfair practices relating to cancellations and refunds. Continue Reading

CMA COVID-19 Taskforce Update Shows Areas of Concern

Posted in EU and Competition

The CMA is concerned that businesses may be engaging in unfair practices in relation to cancellations and refunds, and unjustifiable price increases.

 By John D. Colahan and Anuj Ghai

Background

On 24 April 2020, the Competition and Markets Authority (CMA) published an update on the work of its COVID-19 Taskforce (the Taskforce) (the Update Report). Shortly after establishing the Taskforce, the CMA launched an online service to allow businesses and consumers to report “unfair practices” related to COVID-19. The  Update Report summarises the nature and volume of complaints that the CMA has received so far and the actions it has taken in response. The CMA intends to publish additional reports while unfair practices related to COVID-19 persist.

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