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Welcome to the January edition of our Insurance Adviser Newsletter, featuring commentary on developments, trends and forward-looking views across a wide range of insurance classes of business.
The provisions of Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which came into force on 1st October 2012, make significant changes to the system through which successful defendants and appellants in criminal proceedings may be awarded amounts from central funds in respect of costs incurred.
Under previous legislation, following a successful trial or discontinuance of proceedings, any Defendant in a criminal case was entitled to reclaim their legal defence costs, thereby enabling insurers to recoup the majority of any expenditure in funding defence costs in a criminal case.
DAC Beachcroft's Commercial Litigation Digest focuses on events occurring within the banking, financial, city business and general regulatory sectors that give rise to or concern contentious matters, civil or regulatory.
The Kweku Adoboli UBS scandal has brought to light the regulatory problems associated with Exchange Traded Funds (ETFs). Swap based ETFs were traded by the Delta One desk, where Adoboli worked, and were allegedly used by him to hide large trading losses. This article will outline the ongoing regulatory debate that this has been sparked by these events and what future developments this may give rise to.
Against the backdrop of claims for mis-selling mortgage-backed securities in the US, the Serious Fraud Office is conducting an examination of asset-backed securities packages sold by financial institutions in the UK as part of an operation to gather evidence of false representations made to clients and counterparties.
Last July, we reported that the Securities and Exchange Commission (SEC) was considering bringing civil fraud charges against credit rating agencies for their role in developing mortgage bond deals which helped bring about the 2008 financial crisis and, in particular, reviewing the actions of those credit rating agencies for their role in providing, what is now said to have been, undeserved positive credit ratings of the mortgage backed securities.
When is a bank giving advice as opposed to mere information to a potential investor? If deemed to be giving advice and the advice is negligent, what losses might the bank be liable for?
The case illustrates the approach the courts will take to dispute resolution clauses which are included in complex contractual arrangements such as structured trade finance contracts.
On 26 August 2011 the British Arab Commercial Bank PLC was granted a declaration that it was entitled to act on the instructions of the National Transitional Council of the State of Libya (NTC) in the administration of bank accounts held for the previous Libyan embassy under the Gadaffi regime.
The recent decision in the case of Standard Chartered Bank v Ceylon Petroleum Corporation, yet another misselling case involving complex financial products, will offer further assurance to financial institutions of the protection afforded by disclaimers often contained within the standard contractual documentation used in complex hedging transactions. Once again this highlights the difficulties faced in bringing proceedings in the English courts in respect of alleged misrepresentations in relation to those transactions.
On 20 April 2011, the High Court rejected the challenge by the British Bankers' Association (BBA) and Nemo Personal Finance Limited to the FSA’s policy statement for the handling of complaints arising from the misselling of payment protection insurance (PPI).
The UK Treasury recently confirmed that it has agreed a deal with Switzerland to secure billions of pounds of unpaid tax which languishes in secret Swiss bank accounts. This announcement is supposed to bring to an end a long-standing dispute between the two countries regarding the alleged abuse by UK taxpayers of Swiss banking secrecy laws. This article examines some of the possible legal issues arising from the deal.
A recent High Court decision has confirmed that where a party agrees to use "all reasonable endeavours" in a contract, this may require that party to act against its own commercial interests (Jet2.com Ltd v Blackpool Airport Ltd  EWHC 1529 (Comm)).
On 25 July 2011, the European Commission released a detailed proposal for the
creation of a proposed European Account Preservation Order Regulation (EAPO), the
purpose of which is to facilitate cross border debt recovery in civil and commercial
On 21 July, Judgment was handed down in the case of Pioneer Freight Futures
Company Limited (in liquidation) -v- TMT Asia Limited. The judgment dealt with a
specific issue of interpretation that followed an earlier judgment of the same court in
which Pioneer had been awarded some $26m. Following the earlier judgment, TMT
had been ordered to make an interim payment of $16.5m, with the balance of $9.5m
turning on the issue of interpretation.
The Supreme Court, in its recent judgment in the case of Belmont Part Investments
PTY Limited -v- BNY Corporate Trustees Limited and Lehman Brothers Special
Financing Inc, has provided long awaited clarification of the application of the antideprivation rule in insolvency proceedings, and the effect of the rule on swap
Since there are reportedly numerous investors in Lehman structured notes and other
financial products who remain out of pocket following the 2008 credit crunch, the
judgment which Mr Justice Briggs has handed down in, Anthracite Rated Investments
(Jersey) Limited v Lehman Brothers Finance SA stands out as of particular interest to
those involved in not only Lehman notes but more generally in derivatives and
structured finance products.
F&C Asset Management faces an estimated liability of £14m after failing to prevent
two fund managers, Francois Barthelemy and Anthony Culligan (B and C), from
exercising put options forcing F&C to buy their 40% stake in F&C Partners LLP, a
'fund of hedge funds' joint venture (the Partnership) in a High Court judgment dated
14 July 2011.
In February the Government provided details of the new entities that will take over
from the Financial Services Authority: the Financial Policy Committee (FPC), the
Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA). The
latter will be responsible for supervising the conduct of all firms currently authorised
by the FSA and the FSA has recently published a paper setting out its initial thinking
on the FCA's approach to regulation.
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