United Kingdom updates

Arbitration & ADR

Contributed by Clifford Chance
High Court clarifies procedure for registration and enforcement of ICSID awards
  • United Kingdom
  • 13 August 2020

The High Court recently confirmed that the procedure for the registration and enforcement of an award made pursuant to the International Centre for the Settlement of Investment Disputes (ICSID) Convention does not require service of the claim form. The court upheld an order dispensing with service on a state of an order for the enforcement of an ICSID award. In addition, the court upheld an order for alternative service against the state.

High Court rejects challenge to enforcement where defences were already raised before foreign court
  • United Kingdom
  • 02 July 2020

The High Court recently dismissed a challenge to a previous decision to grant permission to enforce a Stockholm Chamber of Commerce award on the basis that contrary to the defendant's contention, there was a valid arbitration agreement between the parties and the defendant's arguments as to procedural irregularity had previously been raised in Swedish court proceedings, thereby giving rise to an issue estoppel.

Court of Appeal clarifies principles for determining law of arbitration agreement
  • United Kingdom
  • 04 June 2020

In a recent decision, the Court of Appeal granted an anti-suit injunction restraining the defendants from pursuing Russian court proceedings in breach of a London arbitration clause. In reaching this decision, the court clarified the principles for ascertaining the law governing an arbitration agreement where the contract does not contain an express choice of such law and the main contract law differs from the law of the seat.

Serious irregularity challenge to arbitral award upheld where ambiguity prevented enforcement
  • United Kingdom
  • 30 April 2020

In a recent case, the High Court upheld the claimants' challenge to an award made under Section 68 of the Arbitration Act. Uncertainty as to the identities of the parties to an arbitration agreement and underlying contract had led a Chinese court to refuse to enforce the award. The High Court determined that there was uncertainty or ambiguity as to the award's effect and remitted the award to the tribunal.

Court confirms power to order taking of evidence from non-parties to a foreign-seated arbitration
  • United Kingdom
  • 23 April 2020

The Court of Appeal recently considered whether Section 44(2)(a) of the Arbitration Act empowers the courts to issue orders for taking the evidence of a witness who is resident in the United Kingdom but not a party to an arbitration agreement. The judgment offers much-needed guidance for parties which have identified non-party witnesses who hold potentially relevant evidence but are unwilling to give evidence voluntarily.


Aviation

Contributed by Vedder Price PC
UK ETS – aviation emissions post-Brexit
  • United Kingdom
  • 22 July 2020

The government aims to implement a UK emissions trading system (UK ETS) in January 2021 following Brexit. This article outlines aviation-specific considerations of the proposed UK ETS and the interaction of the proposed scheme with the Carbon Offsetting and Reduction Scheme for International Aviation, the International Civil Aviation Organisation's market-based mechanism for offsetting emissions from aviation.

Court ruling shows importance of standard representations and warranties in aircraft leases
  • United Kingdom
  • 20 May 2020

A recent High Court case demonstrates the utility and importance of including standard representations and warranties regarding power, authority and validity in aircraft leases, including as an estoppel against a defendant's claim that a lease is void and unenforceable as a result of alleged breaches of foreign public procurement legislation and lack of authority. The decision also illustrates the benefit of choosing English law to govern aircraft lease transactions, particularly between international parties.

Court of Appeal decision on economic duress in aviation market
  • United Kingdom
  • 28 August 2019

A recent Court of Appeal decision regarding a claim of economic duress against an airline reinforced the fundamental importance of ensuring contractual clarity and certainty as a matter of English law. For companies operating in the aviation sector, where there may be an unequal power dynamic, parties will be unable to look to economic duress to undo a lop-sided bargain unless there is some unlawful action or provable bad faith on the part of the party with greater power.

Aircraft Purchase Fleet Limited sought $260 million in damages from Compagnia Aerea Italia
  • United Kingdom
  • 20 February 2019

In a recent High Court Case, Aircraft Purchase Fleet Limited (APFL) sought $260 million in damages from Compagnia Aerea Italia (CAI) for an alleged repudiatory breach of a framework agreement under which CAI had agreed to lease certain new Airbus A320 family aircraft. APFL had agreed to buy these aircraft from Airbus. However, CAI argued that it had become impossible for either party to perform the framework agreement following Airbus' termination of its obligations to sell aircraft to APFL.

Drones – the rise of the Basic Regulation
  • United Kingdom
  • 03 October 2018

In July 2017 the government released proposals to regulate the use of drones in the United Kingdom. Since then, the regulation of drones has been transferred to the European Union and now falls under the EU Basic Regulation. Many of the UK government's proposals for drone operators are included in the EU Basic Regulation, which sets the groundwork for establishing rules that will require operators of drones that weigh 250kg and above to register them and ensure that they are marked for identification.


Banking & Financial Services

Contributed by Latham & Watkins LLP
Conduct and culture update from FCA
  • United Kingdom
  • 08 September 2020

In 2019 the Financial Conduct Authority (FCA) hosted conduct roundtables with 18 wholesale banks termed the 'engine room'. The roundtables culminated in the FCA's latest report on the 5 Conduct Questions Programme, 'Messages From the Engine Room', which reflects the FCA's findings and perspectives. This article summarises the key takeaways from the report and provides commentary and questions that firms might usefully address.


Competition & Antitrust

Contributed by Gowling WLG
UK competition authority continues to penalise individuals for competition law infringements
  • United Kingdom
  • 12 September 2019

The Competition and Markets Authority (CMA) recently publicised the disqualification of three individuals from acting as directors as a consequence of their company's involvement in an infringement of UK competition law. In view of the CMA's commitment to enforcement actions and to ensuring that directors are held personally responsible for competition law compliance, individuals and organisations should, among other things, proactively consider the extent of any potential exposure that they may face.

Investment planning: factoring in UK merger control regime
  • United Kingdom
  • 29 August 2019

The acquisition of a minority shareholding (which satisfies the jurisdictional criteria under the UK merger control regime) without obtaining clearance presents a range of legal and commercial risks for parties, including that the Competition and Markets Authority could ultimately order the acquisition to be undone. This article highlights some ways for parties to identify and understand the extent of the risks of an acquisition.

Acquisitions of minority shareholdings under UK merger control regime
  • United Kingdom
  • 15 August 2019

The Competition and Markets Authority can open an investigation and impose initial enforcement orders where it has reasonable grounds to suspect that two or more enterprises have ceased to be distinct. This includes circumstances in which an acquirer purchases only a minority shareholding in the target because, under the UK merger control regime, two or more enterprises cease to be distinct where they are brought under common ownership or common control.

Use of IEOs in completed transactions
  • United Kingdom
  • 08 August 2019

Where the Competition Market Authority (CMA) opens an investigation into a completed transaction, it will generally impose an initial enforcement order (IEO). In addition, the CMA can impose IEOs in the context of planned transactions, but anticipates that it will do so relatively rarely in practice. In the context of a completed transaction, an IEO aims to ensure that the acquired business continues to compete with the acquiring business and is maintained as a going concern during the course of the CMA's investigation.

Competition and Markets Authority's ability to investigate completed transactions
  • United Kingdom
  • 01 August 2019

Under the UK merger control regime, while parties can notify transactions and obtain clearance from the Competition and Markets Authority (CMA) before completion, there is no legal requirement to do so. However, if parties do not obtain clearance before completion, the CMA can still investigate. Therefore, a completed transaction is potentially at risk of investigation during the four-month statutory period.


Corporate & Commercial

Coronavirus and contractual penalties
  • United Kingdom
  • 16 March 2020

The Coronavirus outbreak may result in an upsurge of force majeure-related claims under commercial contracts. A further risk now coming to light is customers seeking to enforce contractual fines, penalties, service credits or liquidated damages in connection with supplier failure or delays arising from coronavirus-related issues. As such, a reminder of the law in this area now also feels appropriate.

Beware of Quincecare: update from Supreme Court
  • United Kingdom
  • 10 February 2020

In 2018 the Court of Appeal rejected a stockbrocker's appeal against the High Court's decision that it owed a client a Quincecare duty. In a recent ruling, the Supreme Court upheld the Court of Appeal's decision. The client's Quincecare claim was held not to have been defeated by illegality as, in the circumstances, the fraud of a sole shareholder of a company should not be attributed to the company itself.

Collapse of Thomas Cook: BEIS letter of recommendations
  • United Kingdom
  • 03 February 2020

In November 2019, in the looming shadow of the collapse of Thomas Cook Group plc, the Business, Energy and Industrial Strategy (BEIS) Committee published a letter of recommendations to Secretary of State for the Department of BEIS Andrea Leadsom. The letter follows BEIS's inquiry into the collapse of Thomas Cook and the factors that led to the global travel group's downfall and covers a range of recommendations relating to corporate governance, audit reform and executive pay and bonuses.

Good faith and relational contracts
  • United Kingdom
  • 18 November 2019

In two recent cases, the English courts considered whether the duty of good faith should be implied into commercial contracts. These cases demonstrate that the issue of good faith is evolving in English law. Parties to relational contracts must therefore monitor developments to ensure that foreseeable risks are mitigated effectively in their contracts and commercial practices.

Will director-shareholders always be liable to repay unlawful dividends?
  • United Kingdom
  • 19 August 2019

A series of recent cases have examined the circumstances in which a dividend can be challenged on the basis that it has been unlawfully paid. In one such case, the High Court considered a number of key principles regarding dividend payments and the circumstances in which directors can be pursued for dividends paid prior to an insolvency. This judgment provides some comfort to directors who rely on professional advisers to determine whether to declare a dividend payment.