Feature

In recent years, a series of newly incorporated companies have proposed schemes of arrangement or restructuring plans pursuant to Pts 26 or 26A of the Companies Act 2006 (respectively) with the express purpose of compromising or amending debts which they are not contractually party to, and which they have no connection with. Their ability to do so relies on a unilateral instrument known as a “deed poll”. In this article, we examine the reasons why the deed poll structure may be used, and some of the issues that the courts have considered and addressed in recent cases.

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.

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.

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.

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.

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.

In Blight v Brewster [2012] EWHC 165 (Ch) the court implemented an innovative procedure enabling a judgment creditor to enforce against the debtor’s pension fund. Blight has been followed in a trio of reported decisions handed down in 2022, which examined particular aspects of the procedure and its application in specific circumstances, further establishing the jurisdiction and helping to delimit its boundaries.

In this article the authors consider the relationship between English law and the doctrine of universal succession and the likelihood of controversial creditor issues where finance arrangements are transferred.

The Economic Crime (Transparency and Enforcement) Act 2022 (ECTEA) creates a number of issues for both overseas companies and those dealing with them in conveyances of land, including lenders. This article considers some complications in the regime and the effect of an error on the Land Register.

The new Consumer Duty is not actionable under s 138D Financial Services and Markets Act 2000. While some existing legislation affecting contracts address the concepts of fairness and good faith similar to those in the Duty, such legislation is of limited application. Might it be possible to use contractual obligations in order to give a right of action? The case law suggests that only the clearest language of incorporation would incorporate the rules underlying the Duty. The Duty will however inform the standards expected under the implied term of care and skill in contracts for financial services.