Our Insights

The first case for the International Centre for Settlement of Investment Disputes (ICSID) of 2015 is between a number of major European energy companies and Spain.

The claim by, among others, the German company RWE concerns an investment in Andasol, a solar plant located in southern Spain, in the light of a reduction in subsidies for renewable energy by the Spanish government. The arbitration is taking place under the Energy Charter Treaty.

Stadtwerke München GmbH, RWE Innogy GmbH, and others v Kingdom of Spain (ICSID Case No. ARB/15/1)

The High Court has ordered the Royal Bank of Scotland (RBS) to hand over a number of documents relating to its communications with the Financial Conduct Authority (FCA) over alleged manipulation of LIBOR rates.

RBS had admitted misconduct in relation to other LIBOR currencies, but not in relation to pounds sterling. The claimant property developer argued that the bank had made misrepresentations to persuade it to enter into certain interest swaps. RBS argued that the FCA had found no misconduct on its part in connection with GBP LIBOR and refused to disclose documents produced by a special committee on grounds of legal advice privilege. RBS also argued that certain communications with the FCA were protected by without prejudice privilege.

Birss J held as follows:
Property Alliance Group v Royal Bank of Scotland Plc [2015] EWHC 1557 (Ch)

• The special committee had not been set up exclusively for the provision of legal advice, as demonstrated by RBS’ skeleton argument: the committee was characterised as “formed … to oversee the investigations and potential litigation concerning LIBOR”. So not all documents produced by the committee were privileged. RBS had not explained the basis on which its claim to legal advice privilege was made. The said documents should therefore be handed over to the court for inspection.
• A firm which was the subject of an FCA investigation had the right to withhold inspection of communications which were part of genuine settlement discussions with the FCA. That right applied in civil litigation with a third party. The fact that a Final Notice was issued did not mean that the right was lost. The right arose by analogy with the without prejudice rule. It could not be maintained in civil proceedings if the basis on which a Final Notice had been decided was itself in issue in the proceedings. In such a case the content of the settlement discussions would be admissible evidence. Here, the Final Notice did not make a finding of misconduct relating to GBP LIBOR; this however did not exonerate RBS. The Final Notice was the product of a settlement agreement. It was not the product of a full statutory process of investigation and decision making. The communications on which the agreement was based might have been incomplete, mistaken or misleading. RBS could not rely on what was absent from the Final Notice yet at the same time withhold inspection of those communications. The documents would therefore be inspected by the court.
• RBS could maintain the claim to privilege of documents which were only shown to regulators on a limited basis and despite the existence of legal rights or duties on the part of the regulators to use, act on or publish the documents pursuant to their regulatory powers. However, RBS could not rely on absences from those regulators’ findings as indicating the limits of its misconduct and still seek to maintain as privileged the information put to them. Consequently, those documents would also be inspected by the court.

On 13 January 2015 a debate is scheduled to take place in the House of Commons on the changes to judicial review proposed by the Criminal Justice and Courts Bill.

The House of Lords’ proposed amendments to the Bill that will be debated relate to judicial discretion over what financial information applicants should disclose and whether to grant judicial review where this is in the public interest.

Judicial review: House of Lords propose further amendments to Part 4 of Criminal Justice and Courts Bill 2013-14 to 2014-15

BBC News, Politics – Week ahead

To view the news article, please click here. (English version)

To view the news article, please click here. (Russian version)

To view the news article, please click here. (The article is in Russian)

“Practitioners can turn to this book confident that few, if any, of the questions which may perplex them are not discussed and that all relevant authorities in the common law world have been mentioned.”

Lord Hoffmann

Commercial Injunctions by Steven Gee, QC needs no introduction as the definitive text for those engaged in commercial pre-emptive remedies. For many years it has been regarded as the bible for legal professionals advising clients on injunctions. This eagerly awaited 6th Edition maintains and extends that sterling reputation. It has been fully updated in light of the Civil Procedure Rules changes and all other developments in this area of the law over the last ten years since the previous edition was published.

The comprehensive coverage includes all aspects of the law relating to commercial injunctions, including freezing injunctions, search orders, contempt proceedings, undertakings and damages, enforcement of a judgment, and much more. The new edition takes in the many key judgments made since the previous edition appeared and a wealth of other new content. For example the very important section on contempt of court has been expanded and divided into two distinct chapters.

Despite the title’s unparalleled in-depth coverage of the subject, it provides a highly practical and invaluable tool for practitioners, offering clear analysis and guidance. The author’s renowned understanding of the subject renders difficult concepts easily understandable and answers to key questions clear and accessible. Beyond this, Steven Gee discusses topical developments in a critical way, stimulating further thought, discussion and debate.

This new edition also includes an appendix providing a unique comparative look at similar practice and procedure in US federal and New York state courts by three practitioners from the leading US firm Shearman & Sterling and a Foreword by Lord Neuberger.

Commercial Injunctions 6th Edition, 9781847036131, Hardback, £249.00

The new 6th edition of Commercial Injunctions:
Full contents include:
About the author:

• Provides unparalleled in-depth coverage of the subject
• Has been cited in numerous cases with approval
• Gives practical advice on how and when to obtain injunctions, how to defend against such orders and the options available
• Provides key insight into the continuing evolution of the Mareva injunction
• Provides a one-stop source of answers
• Is written in a clear and authoritative style – providing answers and guidance on key issues

1. Introduction: Injunctions and the evolution of the Mareva injunction and Anton Piller relief
2. General principles and enforcement of contracts
3. Common types of commercial injunctions – Mareva relief
4. Forms of order
5. Other types of order
6. The jurisdiction to grant injunctions and Anton Piller relief
7. Preservation of assets: other types of relief
8. The without notice application
9. The duty to make full and frank disclosure and fair presentation
10. The “without prejudice” rule
11. The undertaking in damages
12. Risk of Dissipation
13. Injunctions against third parties
14. Anti-suit injunctions
15. Injunctions affecting letters of credit, performance bonds and bank guarantees payable on demand or their proceeds
16. Appointment of a receiver
17. Anton Piller
18. Privilege – Injunctions to preserve privileged information or to prevent lawyers or other professionals from acting
19. Contempt – Part 1: The legal principles
20. Contempt – Part 2: Proceedings for contempt
21. Freezing injunctions: the effects on non-parties, “maximum sum” orders, variations to permit payments to nonparties, including legal costs
22. The writ ne exeat regno and s.6 of the Debtors Act 1869
23. Ancillary orders
24. Expiry of an injunction, discharge, variations and appeals
25. Restrictions on the use which may be made of documents or information

Steven Gee, QC is a commercial litigator with nearly 40 years’ experience and appears as counsel arguing cases and has done so from the beginning of the Mareva jurisdiction. He appears as counsel in international and commercial arbitrations, sits as an arbitrator and has also acted in numerous arbitrations in England, and abroad. He has appeared as counsel in the Supreme Court of the Republic of Ireland, Bermuda, the Cayman Islands, Hong Kong, the Turks and Caicos Islands, and Antigua. He is a member of the New York Bar and admitted to practice in the State and Federal Courts in New York. He is in independent practice as a commercial QC, and with the specialist litigation and arbitration firm Joseph Hage Aaronson LLP, which has a number of other QCs.

PLACE YOUR ORDER TODAY:

sweetandmaxwell.co.uk
TRLUKI.orders@thomsonreuters.com (UK)
0345 600 9355 (UK) +44 (0)1264 388560 (Int’l)
Quoting reference: 3081902A

On 19 July, the High Court held a directions hearing in a number of cases which have been brought relating to the triggering of Article 50 in light of the EU Referendum result.

The argument of the claimants is that the TEU provides that the withdrawal notification to the Council of the European Union is valid only if it is issued in accordance with UK’s constitutional requirements and that the Prime Minister cannot trigger Article 50 by using the prerogative powers of the Government as this would go against the European Communities Act 1972. Consequently, the only way in which the Article 50 notification can be issued is if it is authorised by an Act of Parliament.

The hearing will be in mid-October. The High Court judgment is expected in early November. It has been proposed by the Court that the Court of Appeal stage be leapfrogged so that the Supreme Court might hear the case towards the end of November and deliver their judgment by the end of December.

This article appears in the JHA July 2016 Tax Newsletter, which also features:
You can download the complete newsletter as a PDF here: July 2016 – Tax Newsletter.

1. Case C-18/15 Brisal SA, KBC Finance Ireland v Portuguese State Treasury by Moritz Richter

To read the news article, please click here.

To view the news article, please click here. (Article is in Russian)

To view the news article, please click here. (Article is in French)