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With Brexit dominating the summer news agenda, this briefing is a summary of tax developments that have arisen over the last couple of months relevant to the asset management industry. Please get in touch if you would like further information (our contact details are at the end of this briefing).
With Brexit set to take place on 31 October 2019, the Government has announced that it plans to end free movement immediately if the UK leaves without a deal. Just a third of the three million EU nationals in the UK have secured their UK residence status under the EU Settlement Scheme, with significant numbers still yet to apply.
In this briefing we look at the recent Court of Appeal judgment in Stobart Group Limited and Anor v William Stobart and Anor [2019] EWCA (Civ) 1376. This judgment confirmed that a purported notice of claim given under a share purchase agreement will be construed objectively and also highlighted the grave consequences of failing to serve a valid notice in such circumstances.
After a long time on the radar, the EU Prospectus Regulation is now fully in force and has introduced a new regime for prospectuses. A reminder of the key changes is set out below.
To ensure that the UK has a functioning statute book after Brexit, many thousands of changes are being made by statutory instrument, with limited scrutiny from Parliament.
On 21 July 2019, the Prospectus Regulation (EU) 2017/1129 (the “Prospectus Regulation”) came into force. This means new rules now apply when prospectuses are being drafted and approved.
The FCA recently published a feedback report on its 5 Conduct Questions programme. Although the 5 Conduct Questions programme (5CQ) has been running for some years, and was originally aimed at wholesale banks and subsequently extended to certain other wholesale firms, the FCA says that its feedback on 5CQ is now relevant for all firms. Therefore, all firms should consider "if and how" they can effectively incorporate 5CQ into their own organisations.
Charlie Bischoff, a partner in our Finance team who co-heads our Fund Finance practice alongside Danny Peel, moderated the Covenantal Relationships Panel at the recent European Fund Finance Symposium in London last month. The panel consisted of Russell Evans (National Australia Bank), Kim Nguyen (Commonwealth Bank of Australia), Matthew Maguire (Park Square Capital) and Keith Pickard (InfraRed Capital Partners). The following are a selection of the key themes arising from the panel discussion.
The concept of "relational contracts" is not new but has recently started to crop up more often in judgments on contractual disputes. This matters because, as we explain below, a finding that your contract is "relational" can make a significant difference to the way it is interpreted by a court.
Key employment and business immigration developments for employers.
The decision in the LifeCare appeal (APP/X5210/W/18/3198746 10 June 2019), in which the Planning Inspectorate held that future income should be included in a viability analysis, adds further fuel to the fire about how various kinds of retirement living and elderly accommodation, with or without care services, are classified under planning law, and the impact that this will have on the viability of such developments.
We live in a connected world. And the problem with a connected world, is that every connection is potentially vulnerable to cyber attack.
New rules implementing the Shareholder Rights Directive II ("SRD II") have come into force today. There are two key areas of change that are relevant to listed companies:
Asset-backed or net asset value (NAV) facilities as a feature of the fund finance landscape are not new, but their prevalence and uses have increased over the last five years in particular.
Giving employees shares in the company they work for is often seen as an effective motivational tool. Some owners go even further and hand their workers a controlling stake in the business by transferring it to a specially formed employee ownership trust ("EOT"). John Lewis is often cited as the classic example of an employee-owned company but there are many others including global operators, PA Consulting and Mott MacDonald.
In July 2018 we circulated a briefing note outlining the European Parliament's approval of a revised proposal to amend EMIR, also known as "EMIR 2.1", (which can be found here) as part of its REFIT programme. This briefing note outlines a further development in respect of EMIR 2.1, which will be particularly relevant to managers of alternative investment funds ("AIFs") who are, or may become, users of derivatives.
The FCA has raised concerns about appointed representative (AR) arrangements entered into by firms in the investment management sector (including AIFMs, asset managers and advisorarrangers). The FCA has identified significant shortcomings in the way that principal firms oversee their ARs, and has found that principal firms often do not adequately assess the risks that the activities of ARs pose to the principal firm's business. In particular, the FCA has stated that it has significant concerns about the use of the "Host AIFM model" under which an AR provides advice to the AIFM, as its principal, and often markets and deals in the units of the AIF.