By Sam Pearse
The UK Government has launched a Consultation regarding cryptoassets, focussing on whether unregulated cryptoassets should fall within the financial promotions regime, thereby affording protection for consumers. There is no immediate impact on cryptoasset businesses, but the regulatory landscape is changing.
The UK Financial Services and Markets Act 2000 sets out restrictions on the communication of invitations or inducements to engage in investment activity, such as investing in securities. In brief terms, only those persons who are authorised by the Financial Conduct Authority (FCA) may make such communications, or persons who are making a communication which as been authorised by an authorised person. Incidentally, the ‘approved communications’ exemption is also being reviewed by HM Treasury and our article about that can be found here.
At its core, the restriction on financial promotion is intended to protect consumers from being mis sold products, whether by virtue of being provided with insufficient information or by fraudulent activity or investing in immature or inadequate market infrastructures. Continue reading UK Government Consultation on the Promotion of Cryptoassets
By Natalie Stewart & Drew Salvest
HM Treasury has opened a consultation regarding a regulatory gateway for authorised firms approving the financial promotions of unauthorised firms. Responses to the consultation are sought by 25 October 2020 and the government is particularly interested in responses from authorised firms currently approving the promotions of unauthorised persons, retail consumers and unauthorised persons which communicate financial promotions. Unauthorised firms who rely on authorised persons to enable them to market products in the UK should consider approaching their usual approving firms to ensure any implementation of this consultation does not inhibit market access.
Financial promotions (“Promotions”) are restricted under Section 21 of the Financial Services and Markets Act 2000 (“FSMA”), pursuant to which a person must not, in the course of business, communicate an invitation or inducement to engage in investment activity unless the Promotion has been made or approved by an authorised person or it is exempt. Unauthorised firms often use authorised firms which are authorised to carry on a regulated financial services activity to approve their Promotions in order to comply with the regulations (the “Authorised Persons Approval Route”).
Authorised firms are not required to notify the Financial Conduct Authority (the “FCA”) once they have approved an unauthorised firm’s Promotion, nor does the FCA sign off on approved Promotions before they are communicated to consumers. As such, the FCA is only made aware of potential breaches of the relevant regulations. Continue reading HM Treasury Consultation on the regulatory framework for the approval of financial promotions
By Vijay Bange
Adjudicators and Arbitrators are occasionally faced with a situation where one of the parties refuses to engage in the process. In such circumstances tribunals are left in a difficult position to ensure fairness and have regard to due process, whilst also giving careful consideration as to whether it is just and appropriate to continue the process. Ultimately, however, the reluctance of one party to engage should not deprive the other of their legal and contractual rights.
A peculiar position came before Mr. Justice Andrew Baker, in Shell Energy Europe Limited and Meta Energia SpA  EWHC 1799. This case concerned the Defendant’s application to set aside a previous order made by Teare J, made under s. 66 of the Arbitration Act 1996, granting the Claimant leave to enforce an award of arbitration dated 4 December 2019. The award in favour of the Claimant was for EUR 19,712,077.20. The seat of the arbitration was London, and it was under the LCIA Rules. The Defendant participated with the arbitration fully until the final stages; however, on 19 September 2019, with a two-day final hearing set for 25-26 September 2019, the Defendant dismissed its solicitors and counsel, on the basis (according to the CEO) that it was not satisfied with the way the legal team had pursued or presented the defence. The next day, the Defendant retained new solicitors, and the arbitrators granted an adjournment of the final hearing to 8-9 October 2019. Continue reading The reluctant party – failure to participate in final arbitration hearing because of inability to find QC
A sense of déjà vu descended over the international data transfer landscape on July 16, 2020. In a landmark ruling, the Court of Justice of the European Union (CJEU) announced that Privacy Shield, one of the main mechanisms used by companies to transfer personal data from the EU to the United States, is invalid.
To read the full text of this Duane Morris Alert, please visit the firm website.
By Steve Nichol
As my colleague Vijay Bange commented in his blog post on Tuesday, Boris Johnson has announced £5bn of new funding for building and infrastructure projects in the UK.
This sounds like a lot of money, but in real terms it is not anything like enough to restart the economy in the manner suggested by the Government. In the heady days before COVID-19, Chancellor Rishi Sunak announced new investment into infrastructure in the UK totaling £600bn between now and 2025. By comparison, £5bn is nothing like what is required to “level up” the economy in the way promised by the Chancellor. In his Dudley address, the Prime Minister confirmed that the £5bn promised was an accelerated release of those funds promised by the Chancellor, but it remains to be seen whether that £600bn will ultimately be released. Continue reading The Prime Minister’s New Deal: Invest More and Invest Quickly
By Sam Pearse
As previously reported (see here), the UK Government launched the Future Fund on 20 May, with the intention of providing financial support to British start-ups. It has proved to be popular, with over £320m of convertible loans to 322 businesses having been approved.
One of the criteria for accessing the Future Fund was that the applicant had to be a UK-incorporated company or a group with a UK ultimate holding company. The UK Treasury has now elected to expand the programme to include certain overseas companies.
It is not uncommon for British start-up businesses to incorporate outside of the UK, or put a non-UK holding company in place, in order to be eligible for local funding programmes. For example, European businesses may incorporate in the US in order to be more attractive to investors in the US and being able to participate in US accelerator programmes. After all, the US seed and venture capital market has much deeper pockets than its European equivalents.
In order to address this, the British Business Bank has announced the expansion of the Future Fund in order to:
“accommodate businesses that contribute significantly to the UK economy, but do not have their parent company based in the UK because they participated in a non-UK based accelerator programme”.
Revised eligibility – overview
Continue reading COVID-19: Update To Future Fund Eligibility
By Nic Hart & Liam Hutton
The Flexible Furlough Scheme (FFS) commenced today July 1st 2020 and you can now submit claims for periods starting on or after 1 July.
GOV.UK published a news story this afternoon announcing this commencement.
As discussed in earlier mail outs the main premise of the FFS is to allow;
“businesses to bring furloughed employees back to work on a part time basis and will be given the flexibility to decide the hours and shift patterns of their employees – with the government continuing to pay 80% of salaries for the hours they do not work.”
The FFS will remain open until the end of October 2020. Continue reading COVID-19: UK Gov Flexible Furlough Scheme – 1 July 2020 Update
By Vijay Bange
As the government eases the lockdown provisions around the country, the Prime Minister today made a speech in Dudley, the historical heart of the industrial revolution, setting out his £5 billion economic recovery plan for the country. This is the government’s plan to build our way out of the recession caused by the pandemic, and has been compared to the New Deal proposed during the Great Depression by US President Franklin D Roosevelt. Continue reading Build, Build, Build…The New Deal: Boris Johnson Announces Plans to Rebuild Britain
By Nic Hart & Liam Hutton
The Advocate-General of the European Court of Justice has given the opinion in VL (Case C-16/19) that disability discrimination can be found by comparison between the treatment of one group of disabled employees and other disabled employees. Whilst Advocate General Opinions are not binding on the Court, they are commonly regarded as influential, and this Opinion has the potential to create a new basis for comparison in discrimination cases.
The case relates to an employer who paid a monthly allowance to those of its disabled employees who obtained and submitted a disability certificate as evidence of their disability. The issue of discrimination arose because only those who had not already obtained and submitted their certificate were eligible for the allowance.
The employer’s purpose for doing this was that by bringing about an increase in the number of disabled workers employed, the employer would be entitled to a reduction in its contribution to a disability fund.
In the Opinion, the Advocate General addresses whether this could be regarded as discriminatory for the purposes of the Employment Equality Framework Directive, and sheds some light on the applicability of the prohibition of discrimination to the conduct of an employer who treats two groups of disabled individuals differently on the basis of an apparently neutral criterion (in this instance, the date of submission of a disability certificate). Continue reading ECJ Advocate-General Opinion: Disability Discrimination Can Be Found By Comparison With The Treatment Of Other Disabled Employees
By Thomas Rainey
On 22 June 2020, the UK government proposed legislation to amend the Enterprise Act 2002 which would have the effect of expanding the circumstances in which the government would have the authority to review and/or block takeovers of UK companies by foreign entities.
Under the Enterprise Act 2002, the UK government is already empowered to intervene in takeover situations which they deem to be contrary to the public interest – such as relating to the fields of national and public security, media diversity and standards, and/or financial services’ stability.
The amendments now laid before parliament, will add to the above a fourth category of businesses key to the combating of public health emergencies, such as Coronavirus.
Protecting Vulnerable ‘Critical Healthcare Capabilities’
The UK government’s thinking is that, as a result of the economic disruption caused by the current pandemic, in the short-to-medium term some UK businesses may be particularly vulnerable to hostile approaches or distressed acquisitions. Continue reading COVID-19: UK Gov Tables Enhanced Foreign Takeover Restrictions