Duane Morris London

July 27, 2020April 6, 2023 by Duane Morris London

The reluctant party – failure to participate in final arbitration hearing because of inability to find QC

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 [2020] 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”

July 17, 2020 by Duane Morris

Privacy Shield Declared Invalid by CJEU; Upholds Validity of Model Clauses

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.

July 2, 2020April 6, 2023 by Steve Nichol

The Prime Minister’s New Deal: Invest More and Invest Quickly

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”

July 2, 2020July 3, 2020 by Duane Morris London

COVID-19: Update To Future Fund Eligibility

By Sam Pearse

02.07.2020

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”

July 1, 2020July 1, 2020 by Duane Morris London

COVID-19: UK Gov Flexible Furlough Scheme – 1 July 2020 Update

By Nic Hart & Liam Hutton

01.07.2020

The Flexible Furlough Scheme (FFS) commenced today July 1^st 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”

June 30, 2020 by Duane Morris

Build, Build, Build…The New Deal: Boris Johnson Announces Plans to Rebuild Britain

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”

June 26, 2020February 2, 2021 by Duane Morris London

ECJ Advocate-General Opinion: Disability Discrimination Can Be Found By Comparison With The Treatment Of Other Disabled Employees

By Nic Hart & Liam Hutton

26.06.2020

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”

June 15, 2020February 2, 2021 by Duane Morris London

New Guidance on the UK Gov Flexible Furlough Scheme – 12th June 2020

By Nic Hart

15.06.2020

As advised, the Government Guidance for the new Flexible Furlough Scheme (FFS) was released on Friday evening – June 12^th.

Accessibility to the new Guidance is not the most straightforward as the information is spread across the existing CJRS Guidance and three new pieces of Guidance. The Government has also produced a summary overview of the key changes to the CJRS and the timetable for the same.

The major changes to the existing scheme with effect from July 1^st are:

there will no longer be a minimum three-week period for furlough. Whilst there will not be a required minimum period to furlough employees, any claim made to the CJRS portal must be in respect of a minimum one week period regardless of how many days may have been worked in this one week period.
Employers can no longer put in claims to the portal that cover more than one payroll period. All claims through the portal must start and end within the same calendar month.
An employer cannot furlough any greater number of employees than have been furloughed previously – subject to the provisions of those returning from parental leave.

The key principles of FFS are clear. Continue reading “New Guidance on the UK Gov Flexible Furlough Scheme – 12th June 2020”

June 9, 2020April 6, 2023 by Duane Morris London

UK construction & Engineering: Practice and procedure: Pre-action disclosure

By Vijay Bange and Matthew Friedlander

Please Sir may I have some more…

Requests by a party for disclosure of further documents is often a vexed issue, and the motives may in some instances be tactical, and inevitably it’s a costly affair. Recently, its been reported that the insurers for HCC International Insurance Company, PLC in its dispute with Roc Nation LLC (Rapper Jay-Z’s management company), has sought a motion before a New York federal judge seeking disclosure of documents from a UK Broker, and which will entail the discovery requests to be ultimately pursued via the process in the UK courts. Roc Nation has alleged that this is an attempt to “kick the can farther down the road”[1], and is objecting to the motion. Continue reading “UK construction & Engineering: Practice and procedure: Pre-action disclosure”

June 9, 2020February 2, 2021 by Duane Morris London

UK Corporate Insolvency & Governance Bill: Termination Clauses & Temporary COVID-19 Relief

By Linda Crow

09.06.2020

The new Corporate Insolvency and Governance Bill will introduce new provisions to protect a company from suppliers wishing to terminate supply contracts or invoking more draconian terms when the company is entering into certain insolvency procedures, a CVA, or a new restructuring plan or moratorium (as introduced by the Bill), (each an “Insolvency Procedure”).

The purpose behind the new provisions is to maximise the possibility of a company being rescued or being able to sell its business as a going concern by helping it to trade through an Insolvency Procedure.

Where a company (the customer) becomes subject to an Insolvency Procedure, the supplier will be prohibited from: Continue reading “UK Corporate Insolvency & Governance Bill: Termination Clauses & Temporary COVID-19 Relief”