Simon Fawell

If you have to look at commercial or financial contracts, in particular, force majeure clauses which contain reasonable endeavours provisos, read on.... In RTI Ltd v MUR Shipping BV, the UK Supreme Court unanimously overturned the split Court of Appeal decision and held that reasonable endeavours does not require a party to accept non-contractual performance (in this case payment in another currency), providing much needed clarity on this very fundamental point as a matter of principle. https://lnkd.in/euWvapN4

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💡 In this article, London Senior Associates Archit Dhir and Alex McCue discuss the recent UK Supreme Court decision in Sharp Corp Ltd v Viterra BV on the measure of damages under the GAFTA default clause.    Read their insights here: https://lnkd.in/eMy5EKhA   If you have any questions around this decision, please don't hesitate to reach to Archit or Alex.    #WFW #DisputeResolution #SupremeCourt 

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Is a proceeding pursuant to the UK Insolvency Act 1986 to wind up a company an insolvency proceeding? Someone simply answering "Yes!" is only half right, which means they are half wrong. Put shortly, they are wrong. The correct answer is "It depends!", because it does, on a number of factors, not least on the purpose for which the question has been asked. For the moment, consider one critical such factor: the financial state of the company being wound up. If that company is insolvent, then (for all practical purposes) the winding-up is an insolvency proceeding. Indeed, it is a paradigmatic such proceeding. By contrast, if the company is solvent, then (for virtually all purposes) the proceeding to wind it up is not an insolvency proceeding. This notwithstanding that such a proceeding may be conducted pursuant to all the very same statutory provisions as would govern an insolvent winding-up. Now turn to a scheme of arrangement under Part 26 of the UK Companies Act 2006. Is the scheme proceeding an insolvency proceeding? Someone simply answering "No!" — or, indeed, "Yes!" — is only half right, in the sense set out above. The correct answer, again, is "It depends!" An article just published in an excellent legal journal refers to Mr Justice Zacaroli's judgment in Gategroup [2021] BCC 549 — which, amongst other things, held that the restructuring plan proceeding under Part 26A of the Companies Act is an insolvency proceeding for certain purposes — and states: "For a view that goes even further, and suggests that Part 26 schemes of arrangement are also insolvency proceedings, see Riz Mokal, ‘What is an Insolvency Proceeding? Gategroup Lands in a Gated Community’ (2022) 31(3) International Insolvency Review 418." That article of mine can be read at https://lnkd.in/eAmH_AYJ . The final pre-publication version is available at https://lnkd.in/ewr55pDD . The following part of the conclusion may be of interest. It applies not just to winding-up and scheme proceedings but to any other relevant proceeding, including the company voluntary arrangement and even administration (both under the UK Insolvency Act).

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📈Ogier's Funds team in Jersey has advised Geiger Counter Limited on its listing on Main Market of the London Stock Exchange. Geiger Counter Limited invests in the securities of companies involved in the exploration, development and production of energy and related service companies in the energy sector. The team was led by partner Niamh Lalor and managing associate Alexandra O'Grady with support from senior associate Stephanie Edge and associate Hugo Reid. 🔗Read the full press release via the link in the comment below 👇

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The Supreme Court has held that a foreign #bankruptcy trustee cannot under common law obtain assistance from the English court in relation to dealing with real estate situated in England. This marks a limit to the principle of modified universalism. The reasoning behind the decision goes back to the "immovables rule", under which only English law applies to immovable property in England (and the English courts will generally recognise the effect of a foreign law over foreign property, as an aspect of each jurisdiction's sovereignty). Assistance may be available to an #insolvency officeholder under the Insolvency Act or the Cross-Border Insolvency Regulations in an appropriate case. Those statutory routes were not available here and the Supreme Court held that it should not plug that gap by judicial law-making. The facts of this case demonstrate that COMI shifting before a bankruptcy or winding up order is made by a foreign court may be effective to allow the insolvent to retain control of English real estate. For those dealing with situations in which insolvency and private international law collide, the Supreme Court's decision may well be the most important since Rubin v Eurofinance. The blogpost below, written together with my Herbert Smith Freehills colleagues, Maura McIntosh and Matthew Leake, digests this important judgment.

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Massachusetts Lawyers Weekly has written about a recent Appeals Court decision where the court ruled that civil defendants were liable for prejudgment interest on legal fees awarded based on a prevailing party legal fee provision in a commercial lease. Bernkopf litigator Robert Stetson highlighted a crucial aspect of the ruling: "The court's characterization of appellate legal fees as part of the 'damages' award for pre-judgment interest purposes underscores the importance of clearly labeling fee-shifting provisions in contracts. This could prevent unnecessary litigation over the applicability of such fees." This decision is a significant reminder for litigators to carefully consider the implications of labels in their fee-shifting provisions in their contractual agreements. Read the full article here: https://lnkd.in/gRUrTz_m

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Our recent write up: THE UK PRIVY COUNCIL RECALIBRATES ARBITRATION VS INSOLVENCY DEBATE The UK Privy Council overturned the Salford Estates decision, ruling that winding-up proceedings should only be stayed for arbitration if the debt is genuinely disputed on substantial grounds. This decision rebalances insolvency law and arbitration, preventing misuse of arbitration clauses to delay legitimate insolvency proceedings. The judgment aligns with other common law jurisdictions and provides clarity for insolvency cases involving arbitration clauses. Ashish Kabra Kamran Mohammad #legal #law #arbitration #insolvency #bankruptcy #ibc #lawyers #legalissues #internationalarbitration #disputeresolution #legalprofession #lawandlegislation #advocacy #india #advocate #lawfirm #creditors #debt #restructuring

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Step aside US Presidential Elections and Donald Trump: the big news in the London capital markets today was the confirmation by the UK’s Takeover Panel that the proposed changes to the jurisdictional framework of the City Code on Takeovers and Mergers (which we reported on in April – https://lnkd.in/e6ExZq6z) will come into effect on 3 February 2025. The only material changes to the proposals made in April are that the run-off and transitional periods have been shortened from three to two years.

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Interesting news from Luxembourg with STB the latest firm after A&O and HSF to set up shop there. We have seen an increase in activity there over the past 12-24 months and it is definitely a region to watch, particularly given its high standard of living and quality of life. 🇱🇺 "𝘛𝘩𝘦 𝘥𝘦𝘤𝘪𝘴𝘪𝘰𝘯 𝘵𝘰 𝘰𝘱𝘦𝘯 𝘪𝘯 𝘓𝘶𝘹𝘦𝘮𝘣𝘰𝘶𝘳𝘨 𝘪𝘴 𝘭𝘪𝘯𝘬𝘦𝘥 𝘵𝘰 𝘵𝘩𝘦 𝘤𝘰𝘶𝘯𝘵𝘳𝘺'𝘴 𝘳𝘦𝘱𝘶𝘵𝘢𝘵𝘪𝘰𝘯 𝘧𝘰𝘳 𝘣𝘦𝘪𝘯𝘨 𝘢 𝘭𝘦𝘢𝘥𝘦𝘳 𝘪𝘯 𝘵𝘩𝘦 𝘌𝘶𝘳𝘰𝘱𝘦𝘢𝘯 𝘳𝘦𝘨𝘶𝘭𝘢𝘵𝘪𝘰𝘯 𝘰𝘧 𝘪𝘯𝘷𝘦𝘴𝘵𝘮𝘦𝘯𝘵 𝘧𝘶𝘯𝘥𝘴 𝘢𝘯𝘥 𝘳𝘢𝘯𝘬𝘴 𝘴𝘦𝘤𝘰𝘯𝘥 𝘸𝘰𝘳𝘭𝘥𝘸𝘪𝘥𝘦 𝘧𝘰𝘳 𝘵𝘩𝘦 𝘷𝘰𝘭𝘶𝘮𝘦 𝘰𝘧 𝘢𝘴𝘴𝘦𝘵𝘴 𝘶𝘯𝘥𝘦𝘳 𝘮𝘢𝘯𝘢𝘨𝘦𝘮𝘦𝘯𝘵, 𝘢𝘧𝘵𝘦𝘳 𝘵𝘩𝘦 𝘜.𝘚."

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📰 In Lloyd's List, Senior Associates Archit Dhir and Alex McCue comment on the UKSupremeCourt’s decision in Sharp v Viterra, highlighting how the ruling provides useful guidance on the importance of the principle of mitigation by reference to the potentially opposing compensatory principle.   Read more of their analysis (subscription required): https://lnkd.in/ebCmisyG   #WFW #DisputeResolution #Shipowners #SupremeCourt

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I’m intrigued by the logic of identity verification. Currently, I’m involved in a project that requires a registered company to be verified as validly existing. Companies House shows all the relevant information; and, the Directors are liable if they give or allow false information to be used. This seems reasonably cast iron in terms of veracity. However, that’s not sufficient for a particular organization. They want us to produce two letters from two, independent third parties. Those letters must be addressed to the registered office of the company. I thought about this. Where do the two third parties get their information? Could it be …. Companies House? On that basis, everyone is actually using Companies House information, it’s just that one organization wants at least two others in the line. Is it a numbers thing - three organizations can’t be wrong? (Of course, they can be.) Ultimately, how does anyone prove, irrefutably and in this context, that a statement is factually correct? Our registered office is where we say it is, but there’s nothing irrefutably certain about that - we might be making it up, and using elaborate means to convince everyone! It seems that the verification process is built on sand!

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Tom Davey and Evangeline Preston of Factor Risk Management look at the different catalysts causing the uptick in insolvency litigation and the corresponding increase in demand for litigation funding in the UK, and predict that funders will continue to play a key role in insolvency litigation in the long term. Read more: https://lnkd.in/gubndy4q #litigationfunding #disputes #litigationfinance #disputeresolution #thirdpartyfunding #litigation

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I found the Q&As covering the upcoming UK merger control reforms along with the one-page handout setting out key facts and figures particularly helpful #DMCCBill #DMCCAct #digitalmarkets #ukmergercontrol #competitionlaw #AddleshawGoddard

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*Treatment of Trusts on Divorce: Analysis of HO v TL [2023]*   HO v TL: Lessons for Trusts Cases, an article by FLiP Senior Associate Grace Lawrence who is a member of the Society of Trust and Estate Practitioners, was first published in HNW Divorce ‘Entrusting the Future to the Next Generation’ magazine (ThoughtLeaders4 HNW Divorce • JUNE 2024) and is reproduced via the link below, by kind permission. Financial remedy practitioners in the HNW/UHNW space will often be instructed in cases where either their client or their client’s spouse has substantial trust interests. In such cases, there is an obvious tension between traditional trust concepts (including the trustees’ duties to act in the interests of the beneficiaries as a whole and to safeguard trust assets) and the desire of the English court to achieve a fair outcome as between the divorcing couple. HO v TL [2023] EWFC 215 is one such case. Amongst other issues, Mr Justice Peel had to grapple with the extent to which the Husband’s interests in two family discretionary trusts were accessible and therefore “financial resources” available to him. Read the full article here: https://lnkd.in/eZT3rg5W #TL4HNWD #HNWDivorce #Trusts

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#Podcast | BHS Judgment #2 – Trading Misfeasance Collyer Bristow's Robin Henry and Gavin Kramer discuss the recent judgment against the former directors of BHS. In this, the second of two episodes, they focus on trading misfeasance and explain how important it is for directors to be aware of the risks of this novel claim and how it differs from wrongful trading. Listen to this episode now: https://lnkd.in/eZQVkuTR #BHSjudgment #tradingmisfeasance #commercialdispute

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