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CMA Issues New Guidance on Merger Assessment During COVID-19 Pandemic

Posted in EU and Competition

The guidance includes a refresher on “failing firm” defence claims, for which the CMA will maintain a high bar.

By John D. Colahan, Stephanie Adams, and Peter Citron

On 22 April 2020 the UK’s Competition and Markets Authority (CMA) published guidance on its assessment of mergers during the COVID-19 pandemic. This follows the guidance the CMA issued on 18 March 2020 regarding its working arrangements during the pandemic.

The new guidance is welcome as a clear statement that it is business as usual in terms of the ability of parties to notify mergers and engage with the CMA, but that the CMA is ready to adapt within the framework of its existing rules to the particularities of the present crisis. Continue Reading

Unexplained Wealth Orders Subject to Rigorous Judicial Scrutiny

Posted in Dispute Resolution

Recent judgments help to clarify purpose and threshold of unexplained wealth orders.

By Stuart Alford QC, Oliver Browne, and Clare Nida

The National Crime Agency (NCA) has had a mixed start to 2020, with appeals heard on unexplained wealth orders (UWOs) testing the new investigative tools provided under the Criminal Finances Act 2017 (CFA).

What is an unexplained wealth order?

UWOs were introduced by the CFA (in force from 31 January 2018), creating a new section 362A of the Proceeds of Crime Act 2002 (POCA). Continue Reading

Accounting for COVID-19 and Future Pandemics When Procuring IT Services – 5 Steps for Success

Posted in Emerging Companies and Technology

As IT vendors grapple with the impacts and risks of COVID-19, how can customers manage exposure when contracting for new services?

By Alain Traill, Christian F. McDermott, and Andrew C. Moyle

COVID-19 has — temporarily or otherwise — disrupted the status quo. For IT vendors the situation is no different, with many being forced to dust off their contracts and seek relief under force majeure provisions. So, where does this leave customers that are seeking to enter into new IT service arrangements, but find themselves faced with pushback from increasingly risk-averse vendors (not just in terms of COVID-19, but also future COVID-19-type scenarios)?

The question of where risk should lie is becoming a new battleground in negotiations. This post focuses on the customer’s perspective, setting out some key steps that customers can take to help achieve a balanced contract. Continue Reading

High Court Rules on Confidentiality Claims in Competition Proceedings

Posted in Dispute Resolution

The ruling may point to a trend that English courts are ever more willing to intervene in managing confidentiality rings.

By Hayley M. Pizzey

In Infederation Limited v Google LLC and others[1] the English High Court considered the extent to which confidential information should be protected from disclosure in competition proceedings. In a somewhat novel approach, Mr. Justice Roth gave the defendants a choice: they could either amend their case so that they no longer relied on the confidential information, or the claimant’s expert witness could be admitted into the relevant confidentiality rings, allowing him to see the confidential information.

The High Court also provided important guidance on making claims for confidentiality and commented on the prevalence of excessive confidentiality claims in competition proceedings. Continue Reading

Italian Securities Exchange Commission Introduces Revised Liquidity Contracts Market Practice

Posted in Finance and Capital Markets

The revised Market Practice reflects the remarks raised by ESMA after a public consultation process.

By Antonio Coletti, Marco Bonasso, and Isabella Porchia

Article 13 of MAR provides for an exemption from sanctions in case a transaction breaches the general prohibition of market manipulation for transactions carried out for legitimate reasons and in line with accepted market practices established by national competent authorities (in Italy, CONSOB).

New Practice No. 1 was prepared in accordance with the format set out under the Annex to the Delegated Regulation (EU) 908/2016. Continue Reading

Italy Adopts Liquidity Decree to Support Italian Companies

Posted in Finance and Capital Markets

The Liquidity Decree strengthens CONSOB’s powers to impose stricter reporting requirements of relevant shareholdings in Italian-listed issuers.

By Antonio Coletti and Isabella Porchia

The Italian government has adopted Law Decree n. 23/2020 (the Liquidity Decree), in force form 9 April 2020, providing urgent measures supporting access to liquidity and financings for Italian companies facing challenges during the COVID-19 outbreak and increasing the government’s golden power rules.

Among other measures, the Liquidity Decree (article 17) amends the Italian law provisions on disclosure of reporting obligations of relevant shareholdings in Italian-listed issuers (article 120 of Legislative Decree 58/1998) and strengthens the relevant powers granted to the Italian Securities Commission (CONSOB). Continue Reading

COVID-19: DHSC and MHRA Pave the Way for Increased Ventilator Production

Posted in Life Sciences

UK companies interested in producing ventilators and other critical equipment may benefit from regulatory exemptions and use government product specifications.

By Frances Stocks Allen and Oliver Mobasser

On 16 March 2020, Prime Minister Boris Johnson called on the UK’s leading manufacturing businesses to help the UK step up production of vital medical equipment to combat the COVID-19 crisis.[i]

With no proven COVID-19 treatment or vaccine to date, ventilators are a critical piece of equipment to help treat patients with acute symptoms of the disease. The UK industry has responded to the government’s call, with a number of companies in the aerospace and automotive sectors reportedly working on plans to lend capacity to manufacture ventilators. Meanwhile, a number of newly designed ventilators and breathing aids have reportedly gained regulatory approval and are either undergoing trials or are already subject to orders from the UK government.

[i] https://www.gov.uk/government/news/pm-call-with-uks-leading-manufacturers-16-march-2020.

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Court of Appeal Can Compel a Non-Party to an Arbitration Agreement to Provide Evidence

Posted in Dispute Resolution

A new decision signals the Court’s readiness to interpret section 44(2)(a) of the Arbitration Act 1996 broadly.

By Oliver E. Browne and Robert Price

In A and B v C, D and E (Taking evidence for a foreign seated arbitration),[1] the Court of Appeal unanimously allowed the taking of evidence from a witness by way of deposition in support of a foreign-seated arbitration, even though the witness was not a party to the arbitration agreement.

Background

The Appellants and the First and Second Respondents were co-venturers in an oil field in Central Asia, and were parties to a New York seated arbitration (the New York Arbitration).

An issue arose in the New York Arbitration as to the nature of certain payments made by the First and Second Appellants and whether those amounts were properly deductible when quantifying sums due in respect of certain interests in the oil field. Although the evidential hearing in the New York Arbitration had concluded, the Appellants obtained permission from the tribunal to bring an application in the High Court under section 44(2)(a) of the Arbitration Act 1996 for an order for the compulsory taking of evidence from an individual in England who worked for their counterparties as the lead commercial negotiator of the production-sharing agreement (the Third Respondent). Continue Reading

Online Marketplace Liability: the CJEU’s ruling … in 60 Seconds

Posted in EU and Competition

Although the decision appears on its face to be a positive development for online marketplaces, it is does not definitively resolve questions of liability.

By Deborah J. Kirk and Elva Cullen

On 2 April 2020, the Court of Justice of the European Union (CJEU) delivered its ruling in Coty Germany v Amazon — marking a development for online marketplaces in relation to liability issues. The case had raised the possibility that online marketplaces could be found directly liable for infringing products sold on their platforms.

Currently, if a third party sells infringing products, within the EU, on an online marketplace, the online marketplace has (i) no liability if it  does not have actual knowledge of the infringement or where it acts promptly to remove the infringing content once it becomes aware of it: and (ii) only secondary liability where it has knowledge and fails to remove the infringing content.

The German Federal Court had requested a preliminary ruling on the interpretation of Article 9(3)(b) of the 2017, and Article 9(2)(b) of the now-repealed 2009, Trade Mark Regulations (Council Regulation 2017/1001 and Council Regulation No 207/2009 (as amended by Regulation 2015/2424) respectively) asking: Does a person who, on behalf of a third party, stores goods which infringe trade mark rights, without being aware of that infringement, stock those goods in order to offer them or put them on the market for the purposes of those provisions, if that person does not itself pursue those aims?

The CJEU addressed this question by ruling that a person who, “on behalf of a third party, stores goods which infringe trade mark rights, without being aware of that infringement, must be regarded as not stocking those goods in order to offer them or put them on the market for the purposes of those provisions, if that person does not itself pursue those aims” [emphasis authors’ own]. Continue Reading

CMA Launches Online Service for Reporting COVID-19-Related Unfair Commercial Practices

Posted in Commercial

The new service encourages UK consumers to report exploitative sales and pricing practices.

By John D. Colahan and Anuj Ghai

On 4 April 2020, the Competition and Markets Authority (CMA) launched an online service called “Report a business behaving unfairly during the Coronavirus (COVID-19) outbreak” (the Online Service) to allow businesses and consumers to report unfair practices related to COVID-19.

The Online Service launch follows the CMA’s recent guidance warning businesses against exploitative sales and pricing practices. In particular, the CMA cautioned traders to behave responsibly and not charge inflated prices or make misleading claims, for example about the efficacy of protective equipment. The CMA noted that members of the public who resell goods, including on online marketplaces, may be subject to the same restrictions. In terms of enforcement, the CMA indicated that it will consider any evidence of breaches of competition and consumer protection law, take direct enforcement action in appropriate cases, and assess whether it should advise the UK government to take direct action to regulate prices. Continue Reading

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