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Brexit: domestic courts’ new power to depart from pre-withdrawal case law
This article defines the statutory concept of retained EU case law under the European Union (Withdrawal) Act 2018 and identifies the test that certain UK courts may now apply in order to depart from it, namely that applied by the Supreme Court in departing from its own precedents. The discretion has historically been applied sparingly, principally for reasons of legal certainty. The same considerations are likely to limit the use of this new power, however possibly not to the same extent. It is unknown if domestic courts will treat it as inherently undesirable for UK and EU law to diverge.
13 June 2024Wither principle in English corporate restructuring law?
In the UK, multiple procedures to achieve a restructuring are available which can be used alone or in combination with each other. Although there is much to be said for this approach in terms of flexibility and adaptability, there is also a risk of creeping inconsistencies in the regime, as different results are arrived at in determining the same issue depending on which procedure is used. In this article, Sarah Paterson explores a few examples and suggests a growing need for it to be addressed by the courts where that is possible, and by the legislature where it is not.
13 June 2024Battle of the acronyms: GDPR vs AI – automated decision-making by ride-hailing apps
The Amsterdam District Court has recently considered three cases involving ride-hailing apps which throw into focus the nature of automated decision-making processes, particularly those which involve Artificial Intelligence (AI) and machine learning (already used by banks across a range of business areas). Although the issues arose in a GDPR context, it is instructive to see how the court addressed them in Applicants v Uber BV (case number C/13/692003/HA RK 20-302), Applicants v Uber BV (case number C/13/687315/HA RK 20-207), and Applicants v Ola Netherlands BV (case number C/13/689705/HA RK 20-258).
13 June 2024International aspects of capacity and authority: a need for reappraisal of Haugesund v Depfa?
The effect upon private law contractual rights of public law illegality has long been a source of confusion and controversy, particularly in the context of disputes between banks and public bodies over complex derivatives. The issue divided the Court of Appeal in Credit Suisse v Allerdale [1997] QB 306 and although the view of Hobhouse LJ in that case has been endorsed in Charles Terence Estates Ltd v Cornwall Council [2012] EWCA Civ 1439, this was only obiter. Foxton J in School Facility Management Ltd v Governors of Body of Christ the King [2020] EWHC 1118 (Comm) has now decided how far public law illegality can provide a defence of incapacity but his logic when applied to a foreign entity is more consistent with Etherton LJ’s dissent in Haugesund v Depfa [2010] EWCA Civ 579 than with the majority decision.
13 June 2024ESG derivatives: a look at recent developments
This article reviews some of the latest innovative structures in ESG derivatives, as described in ISDA’s recent paper Overview of ESG-related Derivatives Products and Transactions of January 2021 and considers some of the legal and drafting issues which those structures raise.
13 June 2024Sanctions on the rise: the 6th Anti-Money Laundering Directive and the post-Brexit landscape
The 6AMLD has been introduced and implemented to provide stricter measures in the fight against money laundering. In particular, criminal sanctions both by way of imprisonment and fine are increased. Further, 6AMLD broadens the scope of financial crimes being dealt with. However, whilst 5AMLD has been incorporated into the UK’s domestic legislation, 6AMLD will not be implemented. This is because the UK has its own strict measures in place for AML offences.
13 June 2024Secured transactions law reform: lessons from Asia
This article discusses findings from a new book which examines secured transactions law in thirteen Asian countries. Special focus is given to the drivers, substance and process of law reform, and lessons are drawn from the Asian experience that could aid a broader understanding of the principles and policies shaping legal development in this area.
13 June 2024How easy is it to enforce English judgments in the EU post-Brexit? A look at the procedures in Italy, Germany and Spain
This article examines the rules that now apply in relation to the enforcement of English court judgments in the EU and goes on to consider, by reference to Italy, Germany and Spain, what this means for enforcement of judgments in practice. We highlight that these are the rules that apply as at the date of this article but are potentially subject to change (for example if the UK joins the Lugano Convention 2007 (Lugano Convention), as discussed further below).
13 June 2024Liquidity mismatch in UCITS schemes after Woodford
This article examines the problem of “liquidity mismatch” within certain categories of retail funds and assesses whether recent new rules and proposals from UK regulators adequately address that issue.
13 June 2024Showing no recourse: in defence of supply chain finance post-Greensill
This article emerged in response to the onslaught of publicity generated by the insolvency of Greensill. For many this has been their first true introduction to supply chain finance and the coverage has not been very positive. Every few years the collapse of an industry stalwart or promising up-and-comer is held up as a cautionary tale, emblematic of underlying weaknesses or failings of its sector. However, it would be unfortunate to let Greensill’s legacy be the tarring of supply chain finance in general when it plays such an important role in facilitating global trade.
13 June 2024
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