Expert Analysis

• Directors Should Beware Reinvigorated UK Insolvency Service

  

  The recent lengthy disqualification of Carillion directors serves as a salutary lesson to executives on the level of third-party scrutiny to which their actions may be exposed, and a reminder that the directors’ fiduciary duty to creditors is paramount once a company is irretrievably insolvent, says Ben Drew at Fladgate.

• The New Accountability Landscape For Financial Regulators

  

  The preliminary-stage success of a group of U.K. lawmakers in a case against the Financial Conduct Authority highlights the significant hurdles for review of regulatory actions, but the Financial Services and Markets Act 2023 creates additional visibility into the regulators' decision making, which may lead to an increase in judicial review activity, say attorneys at Cleary.

• Director Responsibilities Amid Russian Asset Seizures

  

  Following Russia's recent takeover of several companies, shareholders may argue that directors failed to properly guard the companies' assets and choose to bring derivative claims or unfair prejudice petitions, say lawyers at Collyer Bristow.

• Investors Should Prepare For Possible EU Energy Treaty Exit

  

  Following the European Commission’s recent call for the European Union and Euratom to withdraw from the Energy Charter Treaty, investors in the energy sector should assess the legal structure of their existing investments and consider restructuring to ensure adequate protections, says Philipp Kurek at Kirkland.

• EU Raw Materials Initiative Vital For Sustainable Value Chains

  

  The European Commission’s recent steps toward developing partnerships with the U.S. and Argentina to ensure a secure supply of critical raw materials are a welcome recognition of the importance of mining to the European Union's sustainable transition, say lawyers at Watson Farley.

• UK Top Court Ruling Spells Uncertainty For Litigation Funders

  

  The U.K. Supreme Court's recent decision in Paccar Inc. v. Competition Appeal Tribunal has called litigation funding agreements impermissible, causing astonishment in the legal industry and raising questions over how funders should now approach litigation, say Mohsin Patel at Factor Risk Management and Imran Benson at Hailsham Chambers.

• Gender Diverse Boards May Reduce Corporate Fraud Risk

  

  Following the recently proposed "failure to prevent fraud" offense, companies should focus on diversity in leadership as research shows that an increase in women's representation on boards is associated with a decreased probability of fraud, say Anoushka Warlow and Suzanne Gallagher at BCL Solicitors.

• Trustees Should Take Caution After UK Pension Tap Plan

  

  The U.K. government's recent plan to boost technology startups by tapping into pension sector funds may risk the hard-earned savings of members, so trustees need to be mindful of the proposals in light of their fiduciary duties, say Beth Brown and Riccardo Bruno at Arc Pensions.

• Factors Driving Increased Litigation Against European Cos.

  

  European government regulation and enforcement, economic inflation and litigation funding are driving an increase in litigation, especially class actions, against corporations in Europe, a trend that seems to be here to stay, says Henning Schaloske at Clyde & Co.

• New UK Offense Will Help Law Firms Tighten AML Compliance

  

  By allowing for larger fines and introducing a failure to prevent fraud offense, the Economic Crime and Corporate Transparency Bill, currently passing through Parliament, will further motivate law firms to improve their anti-money laundering compliance process, says Richard Simms at AMLCC.

• What Venezuelan Gold Fight Means For UK One Voice Doctrine

  

  The Court of Appeal's judgment in Deutsche Bank v. Central Bank of Venezuela clarifies the application of the "one voice" doctrine to foreign court judgments, highlighting that the reasoning depends on the recognition or nonrecognition of a head of state or government that is contrary to the U.K. government's position, say lawyers at Latham.

• Report On UK Investment Act Offers Welcome Insights

  

  The U.K. government's recent report on the National Security and Investment Act's first full year of operation is to be applauded for disclosing more information on the act's notification system than was required, enabling a better understanding of what has taken place and what the next year may hold, say Andrea Hamilton and Ajal Notowicz at Milbank.

• Preparing For M&A Under The Foreign Subsidies Regulation

  

  The EU Foreign Subsidies Regulation introduces requirements that companies operating in the region must consider in M&A transactions, and any foreign financial contributions received by a target should be checked during the due diligence stage, with specific provisions for commission approval if a notification requirement is triggered, say Hendrik Viaene and Stéphane Dionnet at McDermott.

• Important Generative AI Considerations In M&A

  

  The recent surge of interest in generative artificial intelligence and its use of machine learning algorithms means there are novel concerns as well as inherent risks for those engaging in M&A activity, and acquirers should pay careful attention to a target’s scope of ownership and licensing rights, say attorneys at Davis Polk.

• Pension Trustee Case Could Lead To Fossil Fuels Divestment

  

  While the recent Court of Appeal case McGaughey v. Universities Superannuation Scheme attempts to link fossil fuel investment by trustees to significant risk of financial detriment, it is concerning that two out of 470,000 scheme members could be permitted to bring a claim without ensuring that other members are represented, says Anna Metadjer at Kingsley Napley.