In a previous blog, we looked at diversity, specifically in relation to gender parity, in the context of adjudication.[1] Although we have come a long way in this arena, the issue of gender diversity still casts a long shadow. It should therefore be no surprise that the world of arbitration suffers much of the same problem.
Continue reading “The Glass Ceiling Looms Large – Gender Diversity in Arbitration”
Jurisdictional challenges and arbitration clauses – that old chestnut! – The UK perspective
By Oliver Kent
Picture this. You are a Director at a substantial widget manufacturing company. One of your key materials suppliers, with whom you’ve had a relationship for many years, is causing you grief. There have been a number of complaints from customers in recent times about a decline in widget quality, which appear to be the fault of your supplier. However, you’re behind on your payments to the supplier and they are starting to threaten supply, with disastrous effects for the company. A dispute is brewing.
You have been involved with litigation before and have experience of court proceedings. However, when you check with your legal team about next steps, you learn that your agreement with the supplier contains a clause which appears to indicate that all disputes must be referred to arbitration. The clause is perhaps not drafted with the certainty it should and could have been, and it is not clear the extent to which it is enforceable. The issue usually is framed on the basis of whether there is a valid and enforceable agreement to refer disputes to arbitration.
There are also commercial considerations that may be relevant. Is it preferable to litigate in the domestic courts or arbitrate? This may be a commercial call, just as much as a legal one. This blog shares some of the practical considerations around these issues.
Continue reading “Jurisdictional challenges and arbitration clauses – that old chestnut! – The UK perspective”
The Equal Representation in Adjudication Pledge & Women in Adjudication
By Vijay Bange and Sam Laycock
In a previous blog[1] we discussed the salient points arising from the report arising from a collaboration between The Adjudication Society and Kings College London[2]. This report addresses the issue of diversity in adjudication.
The Construction industry has frequently been cited as a sector with a lack of diversity. Poor gender diversity in particular and a lack of initiatives within the sector have been recognised by those within arbitration, with a number of organisations such as Arbitral Women and the International Council for Commercial Arbitration Task Force (to name a few), driving for better representation in the arbitration sphere. Continue reading “The Equal Representation in Adjudication Pledge & Women in Adjudication”
Queen Mary University of London Survey – Future of International Energy Arbitration
Queen Mary University of London has undertaken a major International Arbitration Survey, focusing on the energy sector entitled “Future of International Energy Arbitration, Survey Report 2022”. This was led by Professor Loukas Mistelis FCArb[1] and his team. The Survey was based on feedback from over 900 respondents from a diverse range of jurisdictions, end users, leading practitioners, arbitrators and experts, as well as arbitral and academic institutions.
To read the full text of this post by Duane Morris partner Vijay Bange, please visit the Duane Morris International Arbitration Blog.
EU Corporate Sustainability Reporting Directive – New ESG disclosure rules
BACKGROUND
In April 2021 the European Commission presented a proposal for a Corporate Sustainability Reporting Directive (CSRD) that would amend the current Non-Financial Reporting Directive (NFRD) and form part of the wider EU policy to require companies to publicly disclose information and data around environmental, social affairs and governance matters.
On 28 November 2022, the European Council adopted the CSRD following adoption by the European Parliament on 10 November 2022. The CSRD will come into force 20 days after publication in the EU Official Journal and EU member states will then have 18 months to incorporate it into their national laws.
SCOPE
The CSRD creates new sustainability reporting requirements and expands the scope of companies that will be subject to the EU sustainability reporting framework. Under the current NFRD, large EU listed companies, credit institutions, insurance companies and other entities are required to report and disclose certain sustainability information on an annual basis. The CSRD expands the scope of disclosure requirements to non-EU companies with substantial operations in the EU.
Continue reading “EU Corporate Sustainability Reporting Directive – New ESG disclosure rules”
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 Plan to Replace GDPR
By John M. Benjamin and Helen Ryan
On Monday, 3 October 2022, the new Secretary of State for Digital, Culture, Media and Sport (DCMS) Michelle Donelan announced that the United Kingdom would be replacing the General Data Protection Regulation (GDPR) with its own business and consumer-friendly system. Continue reading “New Plan to Replace GDPR”
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. Salvest, Natalie A. Stewart, Rebecca 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/