In our Dispute Resolution 2022 Yearbook, we discussed the recent trend whereby minority shareholders rely on claims for breaches of a duty of good faith as the basis for an unfair prejudice petition. In this case, in the context of such a petition, the Court of Appeal construed an express duty of good faith in a shareholders' agreement, and provided some guidance as to the approach to interpreting such clauses.

To improve is to change; to be perfect is to change often.

As legislators and regulators increase their focus on human rights and good governance, the UN Principles for Responsible Investment ("UNPRI"), an international organisation that works to promote the incorporation of environmental, social and governance (ESG) factors into investment decision-making, announced at the end of last year the creation of a new collaborative stewardship initiative, Advance.

A failure of trust?

Trust has been a key theme that has emerged in crypto in 2022. Going back to the original Bitcoin "White Paper"¹, the very stated purpose of crypto and blockchain technology was to transcend a "trust based model" of the traditional financial system to enable payments – and later, with the development of smart contract platforms such as Ethereum, more complex transactions – to be entered into and executed without reliance on trust in counterparties and intermediaries, those being replaced by code and distributed consensus.

Last week one of the most significant conferences related to biodiversity concluded in Canada. COP15 has come shortly after the close of COP27 and attendees sought to agree a new set of goals to hopefully halt and reverse the worrying loss of natural capital that our planet is currently facing.

For a long time, the regulated, uncertain and public nature of takeovers curbed the enthusiasm of financial buyers looking for a slick M&A process and low execution risk. More recently, competition for overpriced assets forced international and domestic private equity bidders into the public markets, where they discovered they could, in fact, play the game rather well.

In this briefing we look at some of the key changes to law and practice that we anticipate taking place in 2023 which will affect the real estate sector, focussing on real estate development, real estate investment, real estate M&A, real estate occupiers, the senior living sector and the private rental sector.

A regular briefing for the alternative asset management industry. 

The appeal concerned two issues. The first issue was the scope of litigation privilege – the respondent defendants ("the Bank") sought to know which individuals were authorised to give instructions in relation to the proceedings on behalf of the appellant claimant ("Loreley"). Loreley claimed that this information was privileged.

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Travelling. Seamlessly. podcast series

In a recent judgment given in the context of a case involving competition and intellectual property claims, Mr Justice Marcus Smith adopted a striking and unconventional approach to disclosure, placing the burden of a relevance review on the receiving party, not the disclosing party. Having originally ordered the parties to follow the "standard" PD51U (now PD57AD) disclosure model, the judge subsequently replaced this with a regime where the parties were required to conduct a disclosure review, targeted not at the identification and disclosure of relevant documents, but at the narrow exclusion of unequivocally irrelevant, and privileged, documents, with all other documents to be provided for inspection.

Last month the UK Government announced it will give businesses another two years to apply the new UKCA product safety markings and continue to recognise the EU CE mark during the extended transitional period.

The Competition Markets Authority (CMA) is investigating whether online mattress and bed seller Emma Sleep has breached consumer law by making misleading claims about urgency, including the use of countdown timers for discounted deals. This investigation may be the start of a wider crackdown by the CMA on potentially harmful online selling practices.

PRIIPs is dead. Now is the chance to get a proper replacement. 

The Chancellor has today announced the Edinburgh Reforms, a package of measures designed to drive growth and competitiveness in the financial services sector. You can read our summary of these measures.