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English Court of Appeal Confirms Proper Test for Common Mistake Rectification

Posted in Dispute Resolution, Finance and Capital Markets

Objective test applies if a prior concluded contract exists, but subjective test applies if there is a continuing common intention.

By George Schurr and Alex Cox

In the recent case of FSHC Group Holdings Limited v. GLAS Trust Corporation Ltd [2019] EWCA Civ 1361, the English Court of Appeal held that for rectification to be granted on the basis of common mistake, a claimant must establish that either:

  1. the disputed document does not give effect to a prior concluded contract (objectively determined); or
  2. at the time the disputed document was executed, there existed a common intention between the parties in relation to a particular matter (subjectively determined) which, by mistake, was not recorded in the final document as executed.

Rectification is a discretionary remedy that is available to the court in circumstances in which a written contract does not reflect the terms as agreed between the parties, i.e.,where there has been a mistake, not in the making, but in the recording, of a contract[i]. Continue Reading

UK SFO Releases Guidance on Corporate Cooperation Credit

Posted in Dispute Resolution

Guidance sets out the SFO’s expectations for investigations but leaves open questions, particularly for cross-border investigations.

By Stuart Alford QC, Nathan H. Seltzer, Christopher M. Ting, and Harriet Slater

On 6 August 2019, the UK Serious Fraud Office (SFO) issued its much-anticipated Corporate Cooperation Guidance (the Guidance) outlining, in substantial detail, the steps that the SFO expects corporations to undertake in order to be eligible for cooperation credit when the SFO makes charging decisions, including in relation to whether a deferred prosecution agreement would be appropriate in lieu of full criminal prosecution.

In many respects, the Guidance is unsurprising and provides the types of investigative best practices that sophisticated companies and their advisers are already familiar with – particularly companies familiar with US regulators’ expectations regarding cooperation credit. Continue Reading

Derivatives Market Reform – Progress Report

Posted in Finance and Capital Markets

10 Key Regulatory Focus Areas for UK/European Wholesale Markets in 2019

By David BermanCarl Fernandes  Nicola HiggsRob Moulton, Charlotte Collins, and Christopher Sullivan.

In the fifth post of this 10-blog series, we identify key milestones in the derivatives market for the year ahead. This is taken from our wider publication: 10 Key Regulatory Focus Areas for UK/European Wholesale Markets in 2019 – Progress Report. Read the full publication here.

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Italy Updates Regulatory Instructions for Brexit Law Decree

Posted in Brexit

The notice details the requirements applicable to both UK investment firms operating in Italy and Italian investment firms operating in the UK.

By Antonio Coletti and Isabella Porchia

On 1 August 2019, the Italian Securities and Exchange Commission (CONSOB) issued an update of Notice No. 7 of 26 March 2019 (the Notice) detailing the requirements applicable to both UK investment firms operating in Italy and Italian investment firms operating in the UK, further to Brexit Law Decree No. 22 of 25 March 2019 (the Update Notice). The decree lays down a temporary regime for regulated firms in a no-deal Brexit scenario. (See Italy’s Brexit Law Decree Comes Into Force for background information.) Continue Reading

FCA Warns of ‘Significant Weaknesses’ in Firms’ Implementation of the Conduct Rules

Posted in Finance and Capital Markets

All firms should take note of the FCA’s latest feedback on SMCR implementation.

By Rob Moulton, Charlotte Collins and David Berman

In its latest piece of feedback on firms’ implementation of the SMCR, the FCA indicated that firms must improve their implementation of the Certification Regime and, most particularly, the Conduct Rules. While the FCA’s review focused on SMCR implementation within banks, which have been subject to the regime for more than three years, the findings are relevant to all firms, whether already subject to the SMCR or due to become so this December.

The FCA observes that firms are taking the regime seriously, and focusing on the spirit of the regime. Generally, there is a correlation between size, resources and regulatory interaction, and how mature firms are in their approach to the SMCR. However, the FCA has found that some firms seem to have been less successful in embedding the regime below senior manager level. The FCA considers that there is some room for further progress on the Certification Regime, and that there are potentially more significant weaknesses in the implementation of the Conduct Rules. Continue Reading

Market Abuse Regulation – Progress Report

Posted in Finance and Capital Markets

10 Key Regulatory Focus Areas for UK/European Wholesale Markets in 2019

By David BermanCarl Fernandes  Nicola HiggsRob Moulton, and Charlotte Collins

The fourth post in this 10-blog series considers the latest developments in relation to the Market Abuse regime. This is taken from our wider publication: 10 Key Regulatory Focus Areas for UK/European Wholesale Markets in 2019 – Progress Report. Read the full publication here.

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Benchmark Reform – Progress Report

Posted in Finance and Capital Markets

10 Key Regulatory Focus Areas for UK/European Wholesale Markets in 2019

By David BermanCarl Fernandes  Nicola HiggsRob Moulton, and Charlotte Collins

This blog post explores developments relating to the EU Benchmarks Regulation and the transition away from LIBOR. This is the third blog of this series, which has been taken from our wider publication: 10 Key Regulatory Focus Areas for UK/European Wholesale Markets in 2019 – Progress Report. Read the full publication here.


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MiFID II – Progress Report

Posted in Finance and Capital Markets

10 Key Regulatory Focus Areas for UK/European Wholesale Markets in 2019

By David BermanCarl Fernandes  Nicola HiggsRob Moulton, and Charlotte Collins

In the second post of this 10-blog series, we examine recent and upcoming developments relating to MiFID II. This is taken from our wider publication: 10 Key Regulatory Focus Areas for UK/European Wholesale Markets in 2019 – Progress Report. Read the full publication here.

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Brexit Progress Report: 1 of 10 Key Regulatory Focus Areas for UK/European Wholesale Markets in 2019

Posted in Brexit, Finance and Capital Markets

By David BermanCarl Fernandes  Nicola Higgs, Rob Moulton and Charlotte Collins

In our January publication, we highlighted what we were seeing as the top regulatory focus areas for our clients during the year ahead, focusing on wholesale market structures and conduct risk.

In a series of 10 blog posts, we will take a closer look at the key areas highlighted, mapping developments from the first half of 2019, and looking ahead to the remainder of the year.

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HM Treasury Kicks Off Financial Services Future Regulatory Framework Review

Posted in Finance and Capital Markets

Call for evidence on regulatory cooperation marks the first phase of the planned review.

By Carl Fernandes, Nicola Higgs, Rob Moulton, and Charlotte Collins

The Chancellor announced in the Spring Statement that HM Treasury would undertake the Financial Services Future Regulatory Framework Review — examining the long-term effectiveness of the UK regulatory regime and considering where change might be necessary, particularly in light of Brexit.

The Review will take stock of the overall approach to regulating the UK financial services sector, including how the regulatory framework may need to adapt in the future. The Review will seek to address the following four key challenges: Continue Reading

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