United Kingdom updates

Arbitration & ADR

Court of Appeal rules on arbitrability of shareholders' claims
  • United Kingdom
  • 15 September 2011

The extent to which parties may agree to submit intra-corporate disputes - in particular claims under company legislation - to arbitration has long been uncertain. The Court of Appeal recently ruled in favour of the arbitrability of a shareholder's unfair prejudice claim brought under Section 994 of the Companies Act 2006 and has provided important guidance on the arbitrability of corporate disputes more generally.

Arbitrators not employees in anti-discrimination legislation
  • United Kingdom
  • 04 August 2011

The Supreme Court ruling in Jivraj v Hashwani removes the question mark over the legality of provisions in certain institutional rules which restrict the nationality of arbitrators. After much recent uncertainty over nationality criteria, the ruling marks a welcome return to business as usual for those involved in arbitration in the United Kingdom.

Court allows party to reject adjudicator
  • United Kingdom
  • 14 July 2011

The Technology and Construction Court recently considered whether a party could reject a nominated adjudicator by abandoning the reference under the Housing Grants Construction and Regeneration Act 1996 Part 2. The case discloses a gap in the act: it appears that a referring party can withhold service of referral documentation with a view to obtaining the appointment of another adjudicator which is acceptable to it.

Costs consequences of lost opportunities for mediation
  • United Kingdom
  • 26 May 2011

A recent Court of Appeal decision provides a salutary warning to parties - even where they are partially successful - of the potential adverse costs consequences of refusing to mediate. It represents another endorsement of mediation by the Court of Appeal, which exercised its discretion to make no order as to costs.

Shareholders' unfair prejudice disputes may be arbitrated
  • United Kingdom
  • 03 March 2011

A High Court decision confirms that disputes which would otherwise be raised through an unfair prejudice petition before the courts can be referred to arbitration. It reflects the established pro-arbitration stance of the English courts by recognising that parties should be free to agree how their disputes are resolved.


Asset Finance

Key Factors when Negotiating Operating Leases
  • United Kingdom
  • 16 October 2002

Operating leasing has boomed recently, due mainly to the decline of tax-based leasing products and airlines' demand for greater numbers of aircraft with added flexibility in fleet planning. This update examines the key points in negotiating operating leases from a lessee's point of view.

Convention Takes Risk Out of Lending on High-Value Mobile Assets
  • United Kingdom
  • 17 July 2002

The Cape Town Convention, signed last November, aims to reduce the risks inherent in lending on high-value mobile assets such as aircraft, in a bid to increase investment and commercial activity in the aviation industry. It also aims to create an international legal regime for leases, conditional sale agreements and security interests.

Relief from Forfeiture of Chattel Leases Revisited
  • United Kingdom
  • 22 May 2002

In a 2000 case the Court of Appeal clarified the circumstances in which the English courts may grant relief from forfeiture of a finance lease in respect of chattels. The case has now been reconsidered by the House of Lords, which has overturned the Court of Appeal's judgment on one important point.

Proposed Changes to Accounting Standards for Leases
  • United Kingdom
  • 27 March 2002

The Accounting Standards Board is developing proposals for a new accounting standard which would require a single method of accounting for operating and finance leases. Unlike current standards for operating leases, it is proposed that the new standard should treat all leases as involving an exchange of property rights.

Asset Financiers and Administration
  • United Kingdom
  • 12 December 2001

The position of an asset financier who owns or has security over the asset he is financing should remain comfortable if his customer goes into liquidation. If he has taken steps to ensure that his security is enforceable and the value of the asset does not fall short of the amount it secures, he should be able to recover what he has lent.


Aviation

Court of Appeal rules on termination of aircraft purchase agreement
  • United Kingdom
  • 02 November 2011

A recent case underscores the importance for a potential aircraft purchaser of carefully scrutinising the terms of a purchase agreement into which it may seek to enter, as well as the need to focus on the purchaser's right to terminate the agreement if the manufacturer is late in tendering the aircraft for final inspection.

Assessing the Civil Aviation Act
  • United Kingdom
  • 26 October 2011

The Department for Transport has published a memorandum to the Transport Select Committee entitled "Post-Legislative Assessment of the Civil Aviation Act 2006". It provides a preliminary evaluation of the effects of the Civil Aviation Act, as part of the government's commitment to scrutinise the effects of legislation.

Advocate general opines on EU Emissions Trading Scheme
  • United Kingdom
  • 12 October 2011

Advocate General Kokott has opined that EU plans to extend the EU Emissions Trading Scheme to the aviation sector are legal and do not contravene principles of international law. The opinion was published in the context of proceedings brought before the English High Court by a group of airlines and airline associations which sought to challenge the legality of UK and EU rules extending the scheme to the aviation sector.

Passenger is denied compensation for cancelled flights
  • United Kingdom
  • 24 August 2011

The recent Hendy v Iberian Lineas De Espana SA case concerned a passenger's compensation claim against an airline for expenses incurred because of a cancelled flight. Although the defendant airline was in breach of its obligation to provide meals and refreshments under Article 9(1)(a) of the EU Denied Boarding Regulation, breach of that obligation did not give rise to a civil right to claim damages.

Government consults on future of ATOL
  • United Kingdom
  • 27 July 2011

The goverment has been developing a policy on the reform of Air Transport Organisers' Licensing in order to provide up-to-date consumer protection and put the scheme's finances on a self-sustaining footing, allowing the government guarantee to be withdrawn. A consultation seeks stakeholders' views on amendments through secondary legislation and broader, long-term changes.


Banking

New court for resolution of banking disputes
  • United Kingdom
  • 20 November 2015

With many members and users of the financial markets choosing English law to govern their relationships, and recognising the United Kingdom as a global financial hub, a new court has been set up in London to deal with disputes between them. Among other things, the court will deal with claims relating to loans, banking transactions, capital and currency controls, bank guarantees and bonds worth more than £50 million.

High Court considers application of sanctions to spouse of designated person
  • United Kingdom
  • 28 August 2015

The High Court recently considered an application by a claimant for an interim injunction requiring Barclays to unfreeze certain of her bank accounts which had been frozen following the designation of her husband under EU sanctions. The case highlights the importance of banks carefully monitoring and identifying the accounts of designated persons and other accounts in which they may have an interest.

Carlyle v RBS: examining the legal effect of a promise
  • United Kingdom
  • 26 June 2015

The Supreme Court recently ruled on Carlyle v Royal Bank of Scotland, a dispute involving financing for real estate purchase and development dating back to the financial crisis. This was the first decision on appeal to acknowledge as binding a commitment to lend which a bank had given but not formally documented in writing. However, commentators are divided as to the lasting impact of the case.

FCA provides welcome clarification, but care still needed in drafting
  • United Kingdom
  • 26 September 2014

In a welcome announcement for participants and advisers in the UK loan market, the Financial Conduct Authority recently confirmed that the Court of Appeal decision in Fons Hf v Pillar Securitisation Sarl has not altered its interpretation or application of the regulatory perimeter prescribed by the Financial Services and Markets Act 2000.

When is a conclusive certificate not conclusive?
  • United Kingdom
  • 22 August 2014

The High Court recently considered the substance and scope of a conclusive evidence clause, which provides that a certificate provided under a contract by one party to the other, certifying the amount due to it, will be conclusive evidence of that amount in the absence of a "manifest error". The decision highlights the distinction between the primary obligations under an indemnity and the secondary obligations under a guarantee.


Capital Markets

Another failure by a listed company to maintain adequate systems and controls
  • United Kingdom
  • 21 July 2015

A listed holding company with insufficient control over a majority-owned foreign subsidiary was tripped up several times when that subsidiary entered into related-party transactions without the listed holding company complying with the Listing Rules. The resulting fine imposed by the Financial Conduct Authority enhances the trend in enforcement actions for failure to comply with systems and controls requirements.

UK Listing Rules: recent and proposed changes
  • United Kingdom
  • 30 June 2015

The Financial Conduct Authority has issued rule changes with regard to joint sponsors, as well as amendments to the Prospectus Rules and Disclosure and Transparency Rules and two new technical notes setting out its approach to sponsor competence. The Pre-emption Group has also published a revised statement of principles for the disapplication of pre-emption rights.

FCA calls time on use of dealing commissions to pay for research
  • United Kingdom
  • 28 April 2015

The Financial Conduct Authority (FCA) has published Feedback Statement FS15/1, summarising the feedback that it had received in response to a July 2014 discussion paper. The discussion paper sought industry views on future reforms to FCA rules on the use of dealing commissions, which were last modified in June 2014.

FCA revised draft guidance on retail bond prospectuses
  • United Kingdom
  • 03 February 2015

The Financial Conduct Authority (FCA) recently published Primary Market Bulletin 9, which contains further information on the approach taken by the FCA in respect of non-equity prospectuses aimed at retail investors. If a retail bond market is to develop in the United Kingdom on a sustainable basis, the FCA contends that the content and style of prospectuses aimed at this market need to be addressed.

FCA restricts distribution of contingent convertible instruments
  • United Kingdom
  • 16 September 2014

The Financial Conduct Authority (FCA) recently announced that it is using its temporary product intervention rules to restrict the distribution of contingent convertible instruments to professional, institutional and sophisticated or high-net-worth individuals. This is the first time that the FCA has exercised its product intervention powers to restrict the sale of a product for consumer protection reasons.