The Call of Duty (of Care) – the Potential Ramifications of the Tulip Trading case

The recent case of Tulip Trading Ltd v Bitcoin Association For BSV & Ors [2022] EWHC 667 (Ch) considered, amongst other things, the potential fiduciary duties owed to crypto owners by developers of crypto software. This judgment originated from an application from the Second to Twelfth, and Fifteenth and Sixteenth Defendants who challenged the jurisdiction of the Court. In this case, it was found that the Defendants did not owe a duty to help the Claimant recover its assets. At first glance, this seems like bad news for victims of crypto fraud. However, if you go beyond the substantive judgment and look at the judge’s obiter comments, the legal developments following the judgment (including the permission to appeal), and the details of the subsequent settlement of the claim, it is arguable that this judgment provides possible scope for an additional strategy for the recovery of crypto assets in the future. Continue reading “The Call of Duty (of Care) – the Potential Ramifications of the Tulip Trading case”

UK Construction and Engineering Adjudication 2022 – A Year in Review

By Vijay Bange and Sam Laycock

Coulson LJ could not have encapsulated Adjudication more succinctly:

It is not an alternative to anything; it is the only game in town.[1]

In the UK construction and engineering industry adjudication remains the main forum and means for resolution of disputes, many of which are complex and significant in value. In this blog the author looks at, and summarisers, the salient points arising from an illuminating report arising from a collaboration between The Adjudication Society and the team at Kings College[2], led by Professor Renato Nazzini and Aleksander Kalisz. The collation of data from the questionnaire(s) looks at emerging trends and identification of areas of further refinement in the process. Continue reading “UK Construction and Engineering Adjudication 2022 – A Year in Review”

New Compulsory Registration Requirements for Non-UK Entities Holding Real Estate in the UK

Various provisions of the Economic Crime (Transparency and Enforcement) Act 2022 (the Act) came into effect on 1 August 2022 with the intention of increasing the transparency of the ultimate ownership of UK real estate and prevent the use of non-UK entities by those seeking to disguise ownership for the purpose of money laundering or other illegitimate purposes.

The Act has introduced new compulsory requirements for any non UK corporation, partnership or other entity that is a legal person under its governing law (Overseas Entity) that owns or acquires a qualifying estate in any real estate in the UK to register itself and details of its managing officers (e.g. director, manager or secretary) and beneficial owners at UK Companies House in a newly created Register of Overseas Entities (ROE).

To read the full text of this Duane Morris Alert, please visit the firm website.

 

The UK Loan Recovery Scheme

By Helen Ryan 

The British Business Bank’s (“BBB”) Coronavirus Business Interruption Loan Scheme (“CBILS”) was first introduced in April 2021. The new iteration of the Scheme, the Recovery Loan Scheme (“RLS”) launched in August 2022 and will run until 2024.

Following on from our previous article regarding the CBILS, our follow-up article provides updated guidance regarding the new iteration of the Scheme, and examines the amendments that have been made to the Scheme.

Background

The RLS is a government-backed scheme aimed at supporting access to finance for businesses in the United Kingdom, operated by the BBB on behalf of the Secretary of State for Business, Energy & Industrial Strategy. The Scheme’s accredited lenders provide support by means of either a loan, overdraft, invoice finance facility or asset finance facility[1]. The Scheme’s aim is to provide financial aid to businesses that have been affected by Covid-19. The loan can be used for any legitimate business purposes, such as managing cashflow, investment and growth. The eligibility criteria for availing of the Scheme remains the same: small and medium businesses with an annual turnover of up to £45 million. Previously, the CBILS required that the borrower must confirm that it has been negatively impacted by Covid-19.

New Developments

As an update to the previous Scheme, the Covid impact criterion is absent in the new iteration of the Scheme. In the eligibility section of the BBB’s website, it states that there is “No Covid-19 impact test required: Unlike the previous iteration of the scheme, for most borrowers, there is no requirement to confirm they have been affected by Covid-19”[2]. It is unknown whether the absence of the requirement is in direct response to market feedback on the CBILS, however, the lack of the impact requirement is likely due to the ongoing effect that the pandemic has had on the economy, as observed through the ongoing supply chain issues and the cost of living crisis.

Previously, the Scheme supported loans of up £10 million for individual businesses and £30 million across a group, and also provided accredited lenders with a government-backed guarantee of 80 per cent on losses that may arise on facilities of up to £10 million. By contrast, the new iteration will support lending of up to £2 million for borrowers outside the scope of the Northern Ireland Protocol. Borrowers within the scope of the Northern Ireland Protocol may apply for lending of up to approximately £1 million, (subject to aid limit restrictions), and will provide the lender with a 70 per cent government-backed guarantee[3].

The BBB states that businesses that took out a previous CBILS facility before 30 June 2022 are not prevented from accessing the new iteration of the Scheme[4]. However, there is a possibility that businesses may not be eligible to receive the maximum amount.

The BBB also states that the term loans and asset finance facilities are available from three months up to six years, with overdrafts and invoice finance available from three months up to three years[5].

Lenders in the Scheme and the Application Process

When considering a prospective lender, the BBB’s website offers two filter options: ‘Filter by Financial Variant’ and ‘Filter by Region’. The current list of accredited lenders is detailed below:

The new iteration’s list of accredited lenders is short in comparison to the previous list affiliated with the RLS (but does include RBS, HSBC, Lloyds Bank and Natwest among others) and availability varies by region. However, it is likely that the list of accredited lenders will expand over time.

Under RLS, lenders are required to undertake their standard credit, fraud, Anti-Money Laundering (AML) and Know Your Customer (KYC) checks for all applicants[6]. Once an application has been submitted to an accredited lender, the lender will determine whether they can offer a commercial facility on better terms than the RLS facility. If they are able to offer better terms, they will do so. Otherwise, the lender, at their discretion, may elect to use the RLS to support an application. If one’s application with a lender is rejected, a borrower is not prohibited from applying to other RLS-accredited lenders.

For More Information

If you have any questions about this blog, please contact Drew D. SalvestNatalie A. StewartRebecca Green, Helen Ryan, any of the attorneys in our Banking and Finance Industry Group or the attorney in the firm with whom you are in regular contact.

[1] https://www.ukfinance.org.uk/covid-19/business-support/recovery-loan-scheme-qa-businesses

[2] https://www.british-business-bank.co.uk/ourpartners/recovery-loan-scheme/for-businesses/

[3] https://www.british-business-bank.co.uk/ourpartners/recovery-loan-scheme/for-businesses/

[4] https://www.british-business-bank.co.uk/ourpartners/recovery-loan-scheme/

[5] https://www.british-business-bank.co.uk/ourpartners/recovery-loan-scheme/

[6] https://blogs.duanemorris.com/london/2020/03/31/new-covid-19-uk-government-financing-options-available/

UK Jurisdiction Taskforce issues consultation on digital securities

Background

The UK Jurisdiction Taskforce (UKJT) was set up to help develop and transform the UK legal sector through technology. It has previously issued statements on the Status of Cryptoassets and Smart Contracts and the Digital Dispute Resolution Tools.  Its latest consultation is on the issuance and transfer of digital securities under English private law (Consultation). The Consultation is open until 23 September 2022, with a legal statement expected to be published in December 2022 (Legal Statement).

Aside from the stated aims of the UKJT, a motivation behind the Consultation is to address some perceptions in the market that English law is comparatively less supportive of digital securities due to its lack of a statutory regime which specifically accommodates digital securities.

Scope of the Legal Statement

The focus of the Consultation is on equity or debt securities which are constituted or evidenced by reference to a blockchain or distributed ledger technology (DLT). The overarching question that the UKJT is seeking to address through its Legal Statement is whether English private law supports the issuance and transfer of equity or debt securities using a system deploying blockchain or DLT. The focus is not on conventional securities whose performance is linked to, or which are collateralised by, digital assets.

The aim of the Legal Statement is to provide clarity to the market on:

  • the availability of English law as an option for constituting digital securities; and
  • the types of digital security models which English law will support.

The Consultation asks stakeholders to consider what issues need to be addressed in addition to those set out in the Annex to the Consultation.

Commentary

At present English law does not easily provide for the issuance and transfer of securities in entirely digital form.

Using private company shares as an example, the default is that a company must issue a share certificate following the issuance of, or transfer of, shares.  There are certain exceptions but none which will apply in ordinary circumstances. A transfer of a share must be affected by way of a form of written instrument, typically a ‘stock transfer form’. For legal title in the transferred share to properly vest in the transferee, the relevant company’s register of members must be updated, and in order to do that the instrument of transfer must be duly stamped by HM Revenue & Customs, certifying that any and all stamp duty (a transfer tax) has either been paid or is not payable.

Of course the process is far more straightforward for securities held and transferred via CREST, an electronic settlement system. CREST will deal with the issues mentioned above, including deducting the necessary amount of stamp duty. However, for a security to be capable of being admitted to CREST it must be uncertificated, and for a security to be uncertificated it must (among other matters) be, in effect, held by an ‘operator’ (which CREST is). In simple terms, an operator must be recognised and authorised by the UK Financial Conduct Authority or by the European Securities and Markets Authority.  This presents an unattractive, impractical and possibly ethical hurdle for operators of a blockchain. Of course, all of this comes at a cost to the issuing private company.

These are just some of the issues facing would-be issuers of digital securities.

Even without the advent of crypto assets, change is overdue. There is not a company lawyer in the land who has not encountered incomplete or erroneous registers of shareholders, or missing certificates. To enable digitization of private company shares, and to provide for an effective, automated process of transfer and updating of corporate records would be a welcome step forward by both practitioners and those responsible for administering companies.

All small claims are equal, but some small claims are more equal than others

By Oliver Kent and Sam Laycock

Disgruntled holidaymakers who have suffered delay at the hands of their airlines are among the potential claimants who may soon find that the familiar phrase, “I’ll see you in court”, doesn’t quite have the same impact it used to. Enter: the ‘Small Claims Paper Determination Pilot’ (“the Pilot”). Introduced under the 143rd Practice Direction Update as PD 51Z1, this update applies to proceedings issued after 1 June 2022 and allows the Courts to determine the outcomes of matters allocated to the small claims track without a hearing (i.e. on paper) and ultimately, without reference to the parties concerned.2
Continue reading “All small claims are equal, but some small claims are more equal than others”

To Pay or Not to Pay – Factors to Consider when Faced with a Ransomware Attack

By Chris Recker and Charlyn Cruz

In this digital age, the data held by an organisation can be one of its most important commodities. Threat actors (also known as malicious actors) recognise this and as such, cyberattacks have been on the rise. In particular, ransomware attacks have increased in frequency – studies have found that more than three-quarters of UK businesses were affected by ransomware in 2021. This is to be expected, not least because an organisation can still experience significant disruption, even where it is not the target of a ransomware incident (for example, it could be that an organisation further up or down the supply chain may have been affected).

So what should a company do when their data is being held captive? Should they submit to the demands of the threat actor and simply pay? Or should they refuse to back down, on moral grounds (amongst other things)?

Continue reading “To Pay or Not to Pay – Factors to Consider when Faced with a Ransomware Attack”

Recovering Digital Assets in 2022

Introduction

2021 was a blockbuster year for cryptocurrency, aided largely by the Covid-19 pandemic, which saw markets and trading vastly increase. As a result of such growth, cryptocurrency asset tracing is no longer a niche legal sphere. It is one increasingly visible within the English Courts. In January 2022, the Master of the Rolls Sir Geoffrey Vos emphasised the need for all commercial and dispute resolution lawyers to understand blockchains, smart legal contracts and cryptoassets.

From a commercial perspective, the rising value of cryptocurrency and the capacity to conceal its ownership means the area of cryptoasset tracing will continue to develop as part of commercial dispute resolution.

Commercial dispute resolution practitioners have seen a series of published cases coming before the English Courts which deal with a range of issues, including; securing information from exchanges, restraining onward transactions and ancillary issues including security for costs.

Chris Recker, a senior associate at Duane Morris, and Jonathan Bellamy, a commercial barrister at 39 Essex Chambers, identify the principal legal decisions and highlight some of the key challenges arising and practical steps to be taken. This article is gratefully supported by industry specialists in the form of Asset Reality, the world’s first dedicated asset manager for seized crypto assets, and CSI Tech Ltd, a specialist global blockchain tracing agency that wrote the first book on investigating cryptocurrencies.

Recent Cases

On the basics, in 2019 the Commercial Court confirmed that Bitcoin was capable of being property; AA v Persons Unknown & ors [2019] EWHC 3556 (Comm), a decision consistent with the judgment of the Singapore International Commercial Court in B2C2 Limited v Quione PTC Limited [2019] SGHC (I) 03. Since then there has been judicial acceptance for the purpose of without-notice injunctive relief that the lex situs of cryptocurrency is the owner’s place of domicile; (Ion Science Ltd v Persons Unknown & ors (unreported), 21 December 2020 (Commercial Court)).

On asset tracing, there has been further development of the categories of persons unknown who may be subject to a freezing and/or proprietary injunction; Fetch.AI Limited & Others v Persons Unknown & Others [2021] EWHC 2254 (Comm). Cases have highlighted the importance of using proprietary injunctions to restrain misappropriated cryptocurrency (see for example, Mr Dollar Bill Limited v Persons Unknown & Others [2021] EWHC 2718 (Ch)) and of working with specialist blockchain tracers to locate cryptocurrency.

We have also seen disputes about whether cryptocurrency may be held on trust. In Wang v Darby [2021] EWHC 3054 (Comm) it was common ground that in English law cryptoassets constitute property that is capable of being bought and sold as well as held on trust. However, on the facts of the transaction in question, Tezos (XTZ) was found not to be so held because the ‘essential economic reciprocity’ of the arrangement between the parties precluded any trust. We expect this point to be an issue that will be carefully considered in cases in the future.

One of the most interesting recent developments in the case law relates to seeking assistance from a centralised entity which controls a cryptocurrency. In Lubin Betancourt Reyes v Persons Unknown [2021] EWHC 1938 (Comm) the Claimant sought the assistance of the entity that controls the cryptocurrency called ‘USDT’ (Tether) to cancel and re-issue misappropriated cryptocurrency.

On related matters, the Court has recently refused to order security for costs in the form of a digital asset. Amongst other things, it is of note that the Court considered that granting security in this manner would expose a defendant to a risk in the form of a fall in the value of Bitcoin which is not a risk in conventional forms of security – such as a payment into Court, or first class guarantee; Tulip Trading Ltd v Bitcoin Association for BSV [2022] EWHC 141 (Ch).

Emerging Issues

The development of international information production orders is an important emerging issue. Cryptoassets are often held in exchanges registered in offshore, and often “exotic”, jurisdictions chosen for their resistance to outside legal intervention. At present there is some uncertainty on the authorities about whether an English Court has jurisdiction to issue information production orders addressed to parties outside England and Wales and, if so, on the basis of which gateway. There is an unresolved tension between relevant authorities; AB Bank Ltd v Abu Dhabi Commercial Bank PJSC [2016] EWHC 2082 (Comm), CMOC v Persons Unknown [2017] EWHC 3599 (Comm), AA v Persons Unknown (supra) and Lubin Betancourt Reyes & anr v Persons Unknown & ors [2021] EWHC 1938 (Comm).

Cryptoassets, including assets representing the fruits of misappropriated fiat or cryptocurrency, may also be held at addresses outside a centralized exchange. A proprietary and/or freezing injunction may restrain further transactions and dispositions, but in the absence of a third party holder, how will the order be enforced? It is likely that the courts will have to consider development of search and seizure orders in such cases to promote enforcement. It may be the case that, to maximise the prospects that the cryptocurrency is seized and secured, a hybrid search order and receivership order is appropriate to locate and secure private keys on a wrongdoer’s computer or in their property. We expect parties to invite the Court to develop creative legal solutions to assist victims of fraud in such cases.

A key theme in litigation management is the sheer international scale of disputes and claims involving digital assets. As international commercial lawyers, we are familiar with the quarterbacking of litigation across the globe and working with teams of lawyers and technical experts in multiple jurisdictions.

Aidan Larkin, CEO at Asset Reality, highlights the importance of selecting the right team and harnessing the benefits of blockchain technology:

“It’s easy when we hear the term “crypto” to immediately think of the incredibly technical ecosystem it operates in and that often leads to a combination of misconceptions, panic, and assumptions that hinder asset recovery attempts for victims. The truth is, in an asset recovery context, crypto presents more opportunities for success than traditional cases. As a former criminal investigator, I have first-hand experience of the frustration felt when tracing assets internationally. However, blockchain analysis tools allow us to map out fraudulent activity or trace digital assets in minutes and hours compared to weeks and months similar activity takes in the fiat world. 

A unique challenge in crypto asset recovery is the speed of potential dissipation of assets and mismanagement of seized digital assets. We’ve seen litigation cases, successfully trace and freeze crypto at a third party exchange, for example, only to lose the asset through inexperience, negligence or in some rare cases, theft and internal fraud.

Specifically, for the regulated sector and asset recovery practitioners, a significant risk comes in the form of IP’s failing to identify potential crypto assets that could be recovered for the benefit of the estate. If it is later proved that they missed potentially available assets they could find themselves facing action from disgruntled creditors.”

Practical Steps – how do you respond if you are victim?

A recovery strategy is only as good as the legal and technical team that is put together. Picking a team that understands what is and is not possible, and that knows the questions to ask and investigate, is key. The faster that team is put together, the better the chance of a positive recovery including without notice and interim orders sought at short notice. Ultimately, each case needs to be considered on its own facts and merits.

Legal teams experienced in this area work with specialist blockchain tracing agencies which are able to interpret blockchain transactions. This is usually the first evidential phase. In some cases, such as those involving NFTs (non-fungible tokens) this may provide adequate evidence of identification and location. In other cases, this evidential phase may identify the entities (or exchanges) which may form the target of document production or freezing orders. When combined with specialist open source intelligence, it is also possible that other targets may be identified.

Nick Furneaux of CSI Tech highlights the extent of this risk:

“Having investigated crimes involving over $21 billion dollars in the past 4 years, we have seen every scam under the sun. Knowledge is always the key to avoiding being a victim of fraud and this includes fraud related to cryptoassets. If you are going to purchase or otherwise invest in cryptocurrencies you need to understand how your asset is protected. Cryptocurrencies are traditionally protected by a private key, this can be a long string of numbers and letters or more often a list of words, 12 or 24 words long. This is a PRIVATE key and the clue is most definitely in the name!

Many attacks are social engineering plays to try and obtain your private key either by just asking for it to ‘authenticate’ you or because they pretend to need it to, so-say, invest your funds or otherwise. Handing over seed words gives attackers access to all the crypto in your wallet, it is akin to giving someone your bank card and pin.

Some keep their funds in an account at a cryptocurrency exchange and this will likely be protected primarily by usernames and passwords. If there is an option to set up multi-factor authentication it is vital to use it. If multi-factor authentication is not available, don’t use the exchange, walk away.

Investment companies that promise to ‘make your crypto work harder’ are almost always scams, support personnel that ask for your seed words are always thieves and hackers are looking for easy targets with unprotected computers or other devices. Do your homework, understand the fundamentals of the technology and hopefully you will not need my services to try and recover your money.”

Summary

The risk to victims is a real and increasing one and, therefore, cryptoasset disputes and related investigations will continue to increase in 2022. We expect that Courts in a variety of sophisticated jurisdictions, including England and Wales, will continue to embrace new solutions to what are complex disputes. This is very much emerging area of law. In that regard, 2022 is very much the start!

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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