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Failure to prevent fraud: making up for failure to prosecute?
The UK government has introduced a suite of amendments to the Economic Crime and Corporate Transparency Bill (ECCTB) which, if adopted, would add a new offence of “failure to prevent fraud” by large legal entities to the UK statute book. Corporate crime specialists Richard Lissack KC and Robin Lööf of Fountain Court Chambers analyse the proposed new offence, its background and context, main features and policy justification. Using the experience of over a decade of the existing failure to prevent bribery regime, they then consider the likely impact of the new failure to prevent fraud offence on business.
19 March 2024“Credit bidding” unsecured debt in an administration
In the recent case of Re Sova Capital Limited (in special administration) [2023] EWHC 452 (Ch), the English High Court approved a structure which was, in substance, a “credit bid” by an unsecured creditor. In this article, the authors explore the High Court’s reasoning and highlight key points to be considered by insolvency officeholders looking to replicate this structure as a means of asset realisation.
19 March 2024Dojima rice and digital assets: new tech, old problems? Market manipulation by cryptocurrency exchanges
This article looks at market manipulation by cryptocurrency exchanges. It explores the features of cryptocurrencies and whether or not existing legal frameworks are capable of accommodating a claim or criminal charge for market manipulation. In particular, the article explores the approach in the US where a claim has recently been brought by the US Department of Justice and the Securities Exchange Commission for market manipulation against a former employee of a cryptocurrency exchange.
19 March 2024Client categorisation under the FCA’s Conduct of Business Rules: what are the possible consequences of getting it wrong?
In this article, Robert Purves considers the statutory rights of action available to a client where a firm incorrectly categorises it and how a breach of client categorisation requirements may be deployed to resist a claim.
19 March 2024From Poland with no trust: protection of securities held by financial intermediaries
This article describes the general rules governing the protection of investors’ rights in Poland in the context of securities held by them with financial intermediaries such as brokerage houses. In particular, it discusses how the ownership of securities is treated and protected in Polish legal order.
19 March 2024In context: the FMLC and its paper on good faith
On 2 November 2022, the Financial Markets Law Committee (FMLC) published a paper titled Duties of Good Faith in Wholesale Financial Contracts. The Paper will be of keen interest both to transactional lawyers and to litigators.1 This article begins with a summary of the Paper’s findings, goes on to consider the unique composition and role of the FMLC, places the FMLC’s good faith discussion in the context of the private law underpinning the wholesale financial markets, and then considers the FMLC’s analysis of English contract law which includes a comparison with the approach of other countries, including the United States (New York) and jurisdictions in Europe and the Commonwealth.
19 March 2024The practicalities of pleading and proving foreign law in modern financial litigation
In theory, FS Cairo (Nile Plaza) LLC v Lady Brownlie [2022] AC 995 (Brownlie II) includes everything one needs to know about pleading and proving foreign law. However, in practice, it is replete with difficulties for litigators. This article provides guidance to ensure that one pleads one’s case in accordance with Brownlie II whilst not exposing one’s clients to unnecessary costs and satellite litigation.
19 March 2024Damages for breach of anti-assignment clauses
The effectiveness of restrictions on the assignment of contractual rights has been qualified by statute and potentially by the courts. In these circumstances, obligors may look to their remedies against assignors and assignees, which may include damages for breach of contract and for inducing breach of contract. Akhil Shah KC and Daniel Schwennicke of Fountain Court Chambers analyse the relevant legal principles and provide practical advice to secured lenders seeking to take assignments of contractual rights.
19 March 2024Taking security over certificated shares in private companies
The article discusses the correct characterisation of the transfer of the share certificate and a blank stock transfer form to the lender where the latter takes an equitable security interest over the shares. It discusses differences in practical treatment where the share certificate is electronic or digital in form.
19 March 2024Unknown unknowns: the worldwide development of the Worldwide Freezing Order against persons unknown
The Worldwide Freezing Order has undergone a significant new development in recent years, as the courts have sought to adapt the powerful interim remedy to cases of internet fraud by, for the first time, making such orders against persons unknown. This article surveys together the published decisions to date in England and elsewhere in the common law world and suggests that while this development is here to stay, uncertainty remains about its application and scope, particularly how the unknown persons subject to it should be described.
19 March 2024
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