In Practice

Regulatory divergence after Brexit: laying the foundations for a new UK regime

On 24 December 2020, the UK and EU finally reached agreement on a post-Brexit trade deal. As expected, and as acknowledged by Prime Minister Boris Johnson on Sunday 27 December,¹ that agreement contains very limited provision for cross-border trade in financial services. On the same day, Chancellor Rishi Sunak suggested that the UK will now be able to “do things a bit differently” on financial services. This In Practice article briefly examines what that could mean for UK financial sector regulation in the near future and beyond.

Crypto comes of age? (also, DeFi, NFTs, Web3 and the metaverse)

Crypto is now mainstream. Charles Kerrigan highlights the impact of this across financial markets and concludes that finance lawyers can be late to a party.

Okpabi v Royal Dutch Shell: will Brexit mean more jurisdiction skirmishes?

In Okpabi & others v Royal Dutch Shell plc & another [2021] UKSC 3, the Supreme Court held that the claimants had an arguable case that Royal Dutch Shell, the UK-incorporated holding company in the Shell group, owed a duty of care to people affected by the operations of a Nigerian subsidiary. The claims will now return to the High Court, which will decide whether in fact such a duty was owed and, if so, whether it was breached and caused the loss claimed. Some commentators have seen the decision as heralding a new wave of international tort claims in the English courts. However, changes brought about by Brexit, as well as the court’s earlier judgment in Lungowe v Vedanta, may complicate this analysis.

What are “skilled person reviews” and why are they relevant?

This In Practice article sets out what a skilled person report is, what a skilled person report can be commissioned for, what the consequences are for an entity in practice and considers how often skilled person reports are commissioned by the regulators.

A SIPP from the devil’s cup: Adams v Options UK Personal Pensions appeal

In this In Practice article, the authors consider the Court of Appeal decision in Adams v Options UK Personal Pensions¹ in which a regulated firm was found liable because its unregulated introducer “encouraged” clients to enter investments.

Impact of the Corporate Governance and Insolvency Act 2020 on securitisation transactions

In this In Practice article, the author discusses the key implications of the Corporate Governance and Insolvency Act 2020 (CIGA) for securitisation transactions.

The UK’s National Security and Investment Bill: implications for loan financings and related collateral

The UK’s new National Security and Investment Bill will create a new, standalone screening regime allowing the government to review acquisitions of “control” of legal entities and assets and to prohibit such acquisitions or impose remedies on them, if it identifies national security concerns. The new regime is expected to enter force in Summer/Autumn 2021. The government’s draft Statement of Policy Intent accompanying the Bill confirms that, “although loans are not exempt from scrutiny, the overwhelming majority of these are expected to pose no national security concerns, including within the core areas. In the rare circumstances where they do pose concerns, the Secretary of State generally only expects to intervene when an actual acquisition of control will take place (e.g. a lender seizing collateral)”. This In Practice article provides a broad summary of the main features of the new national security screening regime and highlights how loans and related security can be impacted.

Enforcing MAC clauses in financing agreements: a double-edged sword

At home and away: UK insolvency jurisdiction

In this In Practice article the authors focus on the practical considerations when commencing insolvency proceedings in the UK and the new complexities both at home and away, applicable from the start of 2021.

Brexit update: implications for securitisations

The uncertainties of Brexit persist despite the UK’s formal withdrawal from the EU in January 2020. Market participants need to continue with their preparations and their engagement with regulators. Regulators and politicians will ultimately determine how the creation of a dual regulatory regime across the EU and the UK will impact the securitisation markets beyond 2020.