Dispute Resolution

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The regulations will enable the UK government to impose sanctions in response to serious corruption around the world.

By Charles Claypoole, Amaryllis Bernitsa, and Robert Price

On 26 April 2021, the United Kingdom implemented the Global Anti-Corruption Sanctions Regulations 2021 (the Regulations). The legislation sets out a new Global Anti-Corruption Sanctions Regime to combat serious corruption, pursuant to the Sanctions and Anti-Money Laundering Act 2018 (SAMLA).

The Regulations allow the UK government to designate as sanctions targets (i.e., the targets of asset-freeze sanctions and travel restrictions) persons who are or who have been involved in “serious corruption” around the world, defined as (i) “bribery” or (ii) “misappropriation of property”. These terms are defined broadly as follows:

  • Bribery includes both providing a financial or other advantage to a foreign public official and a foreign public official receiving a financial or other advantage.
  • Misappropriation of property includes if a foreign public official improperly diverts or allocates property (include anything of value, including contracts or licenses or concessions) entrusted to them in their official role (whether the property is intended to benefit them or a third person).

Will the UK join the Lugano Convention 2007?

By Oliver Browne and Tom Watret

Introduction

Conflicting reports have emerged in recent days as to whether the EU will approve the UK’s application to join the Lugano Convention 2007, the UK’s preferred regime for governing jurisdiction and the enforcement of judgments with EU Member States after Brexit. This post briefly describes what the Lugano Convention 2007 is and why the UK wants to join it, and provides an update on the accession process.

Previous posts in this series consider the Lugano Convention 2007 in more detail (Part 1: here) and explain the rules that now apply to jurisdiction and enforcement of judgments in the UK following the end of the Brexit transition period on 31 December 2020 (Parts 2-4: here, here, and here).

Parties seeking to rely on video-link evidence should plan ahead and, where necessary, obtain local and foreign court approval.

By Dan Smith

The COVID-19 pandemic has (albeit by necessity) ushered in a move towards remote justice. The vaccine rollout continues, and as lockdown restrictions begin to ease, English courts are now considering to what extent that move towards remote justice should continue. Most likely, remote hearings will continue in appropriate cases.

Against this background, the High Court has, in a number of recent decisions, provided some timely reminders for practitioners as to (i) proper arrangements for giving video-link evidence, and (ii) the need, in some cases, to obtain foreign court permission in respect of giving video-link evidence abroad.

The decision clarifies the circumstances under which an arbitral award might be challenged.

By Philip Clifford QC

A recent decision by the English Commercial Court indicates that failure to comply with a precondition to arbitration (such as an obligation to negotiate) calls into question the admissibility of a claim, rather than calling into question the jurisdiction of the arbitrators to hear such a claim. As parties to arbitration can only challenge an award through the English courts under s. 67 of the Arbitration Act 1996 (the Act) for lack of jurisdiction, and not in relation to the admissibility of a claim, the decision suggests that s. 67 may not be available to bring challenges concerned with a failure to comply with such preconditions to arbitration.

In Republic of Sierra Leone v SL Mining Ltd [2021] EWHC 286 (Comm), the court dismissed the Republic of Sierra Leone’s challenge made under s. 67 of the Act, finding that the challenge related to questions of admissibility to be determined by the arbitrators, rather than relating to a question of jurisdiction falling under s. 67 of the Act.

Two recent English cases illustrate the court’s receptiveness to disclosure orders in relation to informal communications on personal devices.

By Dan Smith and Aisling Billington

In two recent decisions, the English Court has demonstrated a pragmatic and targeted approach to ordering disclosure of material held on personal devices of third parties, and a recognition of the value of informal communications as evidence of disputed factual allegations. The decisions are discussed below.

Regardless of whether disclosure is sought under the existing provisions of the Civil Procedure Rule (CPR), or the Disclosure Pilot Scheme, the Court will apply the principle of proportionality in making or varying an order for disclosure. Notably, while the Court is mindful of the privacy rights of individuals, there is increasing recognition that work is carried out on personal electronic devices (including over more informal channels such as WhatsApp), any mingling of personal and work data will not itself be sufficient to circumvent a disclosure order.

Landmark decision holds that the SFO does not have the power to procure documents from foreign companies outside the jurisdiction.

By Stuart Alford QC and Callum Rodgers

On 5 February 2021, the UK Supreme Court handed down a highly significant judgment in R (on the application of KBR, Inc) v Director of the Serious Fraud Office [2021] UKSC 2. The Court unanimously ruled in favour of KBR, Inc in its appeal of a 2018 High Court judgment, which had permitted the Serious Fraud Office (SFO) to use its section 2(3) powers under the Criminal Justice Act 1987 (the 1987 Act) to require foreign companies that were sufficiently connected to the UK to provide documents and other information for the purposes of an SFO investigation.

This is the first case in which the UK courts have ruled on the extraterritorial reach of the SFO’s section 2 powers, which are its primary means of gathering evidence and factual information in support of its criminal investigations into bribery and corruption. 

The EU-UK Trade and Cooperation Agreement has now been agreed. So what rules will apply to jurisdiction and foreign judgments in the UK from 1 January 2021?

By Oliver Browne and Tom Watret

Introduction

It has been a long time in the making, but the UK and EU have finally reached an agreement (the EU-UK Trade and Cooperation Agreement) on their future relationship after the end of the Brexit transition period, which expires today, 31 December 2020.[i]

It has been known since the referendum result on 23 June 2016 that the rules applicable to jurisdiction and enforcement of judgments would change after Brexit, since the regime that currently applies — the Brussels Recast Regulation 1215/2012 (Brussels Recast) — is only available to EU Member States.

In previous posts in this series, we explained the different rules which could apply to jurisdiction and enforcement of foreign judgments in the UK from 1 January 2021, covering the Lugano Convention 2007 (here), the Hague Convention 2005 (here), and the UK’s common law rules (here), in both “deal” and “no deal” situations.

Now that we have a deal, this post provides an overview of the applicable rules.

Litigants should take particular care when drafting witness statements to avoid waiving privilege.

By Dan Smith and Aisling Billington

In Guest Supplies Intl Limited v South Place Hotel Limited, D&D London Limited[i], the UK High Court held that a reference in a witness statement to communications with a legal adviser regarding a key contractual document constituted waiver of legal professional privilege in any relevant communications with that legal adviser.

The Court found that the Administration of Justice Act 1920 should be interpreted purposively rather than literally.

By Oliver E. Browne and Callum Rodgers

The English Court of Appeal has considered for the first time whether the Administration of Justice Act 1920 should be interpreted as permitting the registration of a Commonwealth State judgment in England and Wales, which was itself a judgment enforcing an original judgment given by the courts of a third State.

A class action by 202,600 claimants arising from the collapse of the Fundão dam in Brazil was struck out as abuse of process.

By Sophie Lamb QC, Oliver Middleton, and Tom Watret

Background

In Município De Mariana & Ors v. BHP Group Plc & Anor (Rev 1),[1] the largest group action in English legal history (by number of claimants) was struck out as an abuse of process by Turner J in the High Court. The case is the latest in a series brought by groups of overseas claimants against the UK-listed parent company of a large multinational in respect of alleged misconduct by a subsidiary in a foreign jurisdiction.[2] The uptick in these large international class actions is likely to continue given the ever-increasing focus on environmental, social, and governance (ESG) fundamentals.

The Court’s decision in this case illustrates some of the important practical implications of attempting class action litigation of this scale and complexity, and highlights the importance of taking prompt remediation steps at a local level following major incidents. Where that includes establishing comprehensive compensation schemes, the decision makes clear that the English courts will be reluctant to allow litigation to proceed in England if such action would cut across the local remediation scheme, particularly if the claimants are entitled to and may already have obtained compensation through a local scheme or local litigation.