Ashurst Legal Outlook Podcast

Insolvency adds an extra layer of complexity to disputes between construction companies and contractors. In this episode, we discuss how these may (or may not) be resolved through adjudication. When insolvency strikes, the path to resolving conflicts between construction companies and contractors can be much harder to navigate. Adjudication is often seen as a relatively swift and inexpensive route towards resolution – but it does carry some limitations, uncertainty, and risks. In this episode, Ashurst colleagues Tom Duncan, Dyfan Owen and Stefan Jammes provide a brief overview of adjudication by an insolvent party, and adjudication against an insolvent party. Dyfan explains the challenges posed by insolvency set-off provisions, which have raised doubts about the efficacy of adjudication for insolvent companies. And he discusses the landmark UK Supreme Court case, Bresco v Lonsdale (2020), which affirmed the right of insolvent companies to adjudicate disputes. Stefan and Dyfan explore the grey areas that surround the enforcement of an adjudicator’s decision in favour of insolvent parties, highlighting the stringent requirements for adequate security and the limited circumstances under which enforcement may occur. They also discuss the feasibility of adjudicating against insolvent parties and reflect on the court’s considerations when lifting the Insolvency Act’s moratorium on legal proceedings. Stefan emphasises that a balance must be struck between creditors’ interests and the insolvency process’s integrity. To make sure you don’t miss the next episodes in this mini-series, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

Join us for the second episode of our series focusing on insolvency issues in the construction sector. Tom Duncan, partner in Ashurst's construction disputes team, leads a discussion on the challenges faced by downstream contractors and strategies for mitigating risks in today's turbulent market. In this episode, Tom Duncan is joined by Ben Patton, a partner in Ashurst's construction team specialising in real estate development and investment, and Sadia McEvoy, counsel in the same team. Together, they delve into the complexities of downstream contractor insolvencies and the implications for employers and funders. With the construction sector grappling with unprecedented challenges, including rising insolvency rates, escalating material prices, and a slowdown in public project delivery, navigating insolvency issues has become more critical than ever. Tom, Ben, and Sadia explore the underlying factors contributing to contractor insolvencies and provide valuable insights into mitigating risks in today's challenging environment. From understanding the triggers for termination in construction contracts to exploring the nuances of step-in rights and performance guarantees, this episode offers practical guidance for stakeholders in the construction industry. Whether you're a developer, funder, or contractor, this discussion sheds light on effective strategies for safeguarding your interests amidst increasing insolvency risks. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

In this episode, we discuss the legal risks and commercial difficulties for construction contractors who supply services to a company that enters insolvency. Geopolitical turmoil. Inflation. Brexit. A pandemic. Conditions were already complicated enough for contractors before the current spate of insolvencies among UK construction companies. In this episode, we explore the legal and commercial ramifications for contractors who supply services to companies that face insolvency. Ashurst colleagues Tom Duncan, Ru-Woei Foong and Inga West discuss the meaning of “ipso facto” in an insolvency context and, in particular, UK laws which restrict a supplier of goods or services to a company from terminating supply when the company goes into insolvency. They also explain how and when a contractor can protect their position and pursue outstanding payments, and they discuss circumstances that could enable a supplier to terminate the contract. The trio emphasise the importance of contractors engaging early with insolvency practitioners to clarify their position and weigh up their options. And they discuss the Building Safety Act and potential liability in relation to developers and their holding structures – a particularly acute challenge with older or more mature developments. To make sure you don’t miss the next episodes in this mini-series, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

In the last episode of this mini-series, the team discuss what the greatest enforcement threats have been across the globe over the past 12 months and what is likely to be the emerging areas of risk corporates must look out for in 2024. In this last installment in our Corporate Crime and Investigations Series, our international panel of experts, led by Ashurst host Ruby Hamid, dissected the most significant enforcement threats that have shaped the global corporate landscape over the past 12 months. From the Netherlands, we heard from Marianne Bloos from the Dutch firm Houthoff, KS Shin brought insights from Korea, Tristan Bramble talks through the U.S experience while Dr Eleanor Robinson shares the UK perspective. The discussion examines the key questions, including, the greatest enforcement threats for corporates worldwide. Expectations of authorities in various jurisdictions regarding corporates conducting their own internal investigations and self-reporting, and what enforcement risks should corporates be vigilant about as we venture into 2024? Whether you were a compliance professional, legal expert, or simply interested in staying ahead of the curve in regards to corporate enforcement trends, this episode promises valuable insights, recent case studies, regulatory developments, and emerging trends to provide you with a comprehensive understanding of the global enforcement landscape. To stay informed and catch-up on our corporate crime and investigations mini-series subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify, or your preferred podcast platform. See omnystudio.com/listener for privacy information.

Ashurst colleagues Joe Perry-Courtade, Kim Clifford and Alison Hardy provide a snapshot of the trends that will shape the world of real estate disputes this year. In this episode, we take you on a whistle stop tour of the real estate dispute issues that are set to dominate headlines in 2024. In just 13 minutes, Ashurst’s Joe Perry-Courtade, Kim Clifford and Alison Hardy cover everything from tenant insolvencies and development disputes, to commercial energy efficiency and upcoming reforms of the Landlord and Tenant Act. The trio begin by discussing rising tenant insolvencies (notably in retail, accommodation, and food) before tackling development disputes and the challenges faced by the construction sector (exacerbated by supply chain issues and escalations in costs, interest rates and inflation). Next, they discuss the mooted reforms of the Landlord and Tenant Act 1954, tackling issues such as security of tenure, notices, and renewal lease terms. The episode wraps up with commercial energy efficiency including the shifting compliance timelines and the risks of stranded assets for landlords who fall short of the new regulations. To make sure you don’t miss any episodes of Ashurst Legal Outlook in 2024, subscribe on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

Demystifying the fast-emerging technologies that are changing the face of corporate crime investigations. It’s an exciting time to work in the field of corporate crime investigations and, more broadly, the disputes and contentious matters space. AI, machine learning, data analytics and other emerging technologies are turbo charging our ability to prevent, detect and investigate crime. However, these developments also present several risks and limitations that professionals in the field need to be alert to. In this episode of our mini-series, an expert panel discusses how some of these emerging technologies are being applied in investigations, and how to mitigate the associated risks. Host Adam Jamieson, a partner in Ashurst’s Dispute Resolutions team, is joined by Charlotte Miller, Managing Director and Head of Financial Crime Digital at HSBC, along with Ashurst partner and Chief Digital Officer, Tara Waters, and Ashurst Risk Advisory partner and Data Analytics Lead, Matt Worsfold. Together, the panel discusses current uses of generative AI, data security, data integrity, data visualisation, and more – then considers what to expect in the years ahead. Charlotte also explains HSBC’s supervised machine learning model that is taking transaction monitoring to the next level by replacing the use of fixed base binary rules with probability and propensity capabilities. To follow this continuing mini-series about corporate crime and investigations, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

In the second episode of this mini-series, we tackle sanctions risk – including the robust systems and controls that firms require, recent enforcement actions, guidance from regulators, and unfolding geopolitical issues to watch out for. Hear an international expert panel share invaluable updates for compliance professionals and organisations seeking to mitigate the risks of a sanctions investigation. Ashurst host Tom Cummins is joined by colleagues in Paris (Olivier Dorgans), Tokyo (Alexander Dmitrenko), and London (Sophie Law and Matt Russell). Together, the group outlines the systems and controls that firms require (including comprehensive risk assessments, considering different sanctions regimes, robust screening processes, and staying updated on guidance from regulators). They also highlight recent enforcement activities and the implications for systems, controls, and due diligence. Read our article on the FCA review of sanctions systems and controls. Geopolitical challenges are considered (such as those involving China, Israel and Russia), amidst heightened scrutiny over transactions in certain sectors and regions. And the panel concludes by looking ahead: discussing the prospects for enforcement and the growing importance of data-driven supervisory assessments and internal audits. To follow this continuing mini-series about corporate crime and investigations, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

With the UK set to introduce the most significant changes to corporate criminal liability laws for a generation, how can companies prepare? Fraud is a hot topic currently. New technologies and an economic downturn have triggered a huge uptick in these criminal offences worldwide. With new UK legislation in the pipeline to bolster efforts to prevent (and prosecute) corporate fraud, companies are scrambling to prepare. In this podcast episode, we look at the elevated responsibilities, liabilities, and risks for organisations – spanning controls, governance, frameworks, and more. Along the way, we highlight the issues that should be top of mind for various company leaders, including board chairs and directors, senior managers, chief risk officers, audit committees, and general counsels. To tackle these issues, Ashurst’s Ruby Hamid is joined by an expert panel of colleagues including Nisha Sanghani, Neil Donovan, Matt Russell and Tom Mercer. This is the first episode in a continuing mini-series about corporate crime and investigations. To make sure you don’t miss future episodes, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

Ashurst colleagues Anna Morfey, Tim West and Max Strasberg look back on a significant year in the world of anti-trust and collective actions, including issues stemming from certification, post-certification and case management. They also consider what’s in store for 2024. In 2023, a lot happened in a short space of time in the class actions landscape. In this episode, Ashurst’s expert panel summarises the most notable changes, trends, and cases – and highlight issues to watch out for in 2024. The podcast reflects on an action-packed year for the UK’s Competition Appeal Tribunal (CAT), including significant developments in certification processes for class actions. The panel also discusses several cases stemming from post-certification issues and considers what this tells us about the CAT’s likely approach in future. And, of course, they cover the Supreme Court’s judgement in PACCAR, which was big news for the collective actions regime and litigation funding more broadly. To listen to previous episodes in this class actions mini-series, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

This episode explores the developing legal frameworks in two emerging hydrogen markets, unveiling some of the issues and opportunities investors should watch out for. Ashurst’s Yann Alix is joined by Amyn Mussa from Anjarwalla & Khanna (ALN Kenya) and Madina Hamidova from Centil Law Firm. Together, they discuss the hydrogen markets in Kenya and Uzbekistan. With many regulations still new and untested, it’s vital for foreign investors to stay informed on local legal developments. Amyn describes the emerging landscape in Kenya, including the nation’s Green Hydrogen Strategy, which aims to leverage renewable energy for agricultural, manufacturing, and industrial purposes. He also highlights the main drivers and barriers to investment in Kenya, emphasising the well-established IPP model in the power sector and the importance of credit enhancement structures and robust government support. Madina describes the growing market in Uzbekistan, and highlights some of the issues investors need to be mindful of. These include guarantees and incentives for foreign investors, government reforms, and moves towards privatisation. To discover more on the international hydrogen market and opportunities, make sure to visit Ashurst’s interactive hydrogen guide at ashurst.com. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

Ashurst colleagues Alison Murrin and Richard Vernon pinpoint the legal trends and issues to watch out for in the UK’s real estate sector in 2024. Landmark legislation. Regulatory reform. Energy efficiency policy. In this episode, we take you on a whistlestop tour of 2024 in just 20 minutes – picking out the issues that will dominate the headlines in the UK’s real estate sector. Your tour guides are Ashurst’s Alison Murrin and Richard Vernon. Together they discuss a surprise shift in energy efficiency policy, the possible impacts of COP28, delays to the biodiversity net-gain target, rejected proposals on nutrient neutrality and the challenges of unlocking stalled developments. The legislative tour also takes in the Energy Act, the Leasehold and Freehold Reform Bill, the Renters Reform Bill, and the Levelling Up and Regeneration Act, before concluding with a look at the Building Safety Act. To make sure you don’t miss any episodes of Ashurst Legal Outlook in 2024, subscribe on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

On Tuesday 5 December 2023, the UK's Digital Markets, Competition and Consumers Bill will be read in the House of Lords for a second time. In this podcast episode, Ashurst’s expert panel recaps the key reforms in the Bill and the major issues that arose during the committee stage and the Commons debates. They also pinpoint where the House of Lords is likely to pay particular attention. Together, Ashurst's Fiona Garside, Christopher Eberhardt and Hayden Dunnett delve into the new digital markets regime and the hotly debated standard of review for CMA decisions about digital platforms. The trio also reflects on changes to consumer law enforcement, including: They explore other notable points from the Bill arising from recent enforcement and court decisions, including those affecting litigation funding, market investigation references and the motor fuel sector amendments. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

Are you and your team prepared for the shifting dynamics of debt portfolio sales and trading? As the specialty finance team at Ashurst has observed, there's a growing interest in debt purchase as an asset class. Various factors, including challenging economic conditions, rising delinquencies, capital pressures due to inflation, and a maturing market, have contributed to this trend. Companies are acquiring loan books at an accelerated pace, driving the need for liquidity to support their growth. Debt portfolio sales and debt trading were also hot button topics to come out of the recent DealCatalyst Specialist Lending Conference and in this second episode of the series, Matt Pentecost, leader of the specialty finance practice at Ashurst, delves into the debt portfolio sales and debt trading world with fellow partner Mark Edwards. In this episode, Matt and Mark explore the dynamics of the debt purchase market, the convergence of specialty finance and traditional loan portfolio markets, and the challenges posed by pricing, regulatory compliance, and documentation in debt purchase transactions. They shed light on the evolving landscape and discuss how businesses are navigating these complexities. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

In the third episode of this mini-series, we discuss how EU and UK regulators are seeking to strike a balance between competition law and sustainability agreements. As legislators and regulators increase their focus on sustainability agreements and competition law, this podcast episode assesses the UK and EU landscapes. To cover this evolving issue, Ashurst senior expertise lawyer Fiona Garside is joined by Irene Antypas from Ashurst’s Brussels office and Christopher Eberhardt from Ashurst’s London office. Together, they reflect on the challenge for authorities seeking to ensure that: The discussion covers (and contrasts) guidance from the European Commission and the UK Competition and Markets Authority. The guidance distinguishes between sustainability agreements that are unlikely to infringe competition law and those that may raise concerns. It also considers the criteria for obtaining an individual exemption from the prohibition on anti-competitive agreements. To follow this continuing mini-series, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

This episode looks beyond the hyperbole to explain how litigation funding is (and isn’t) likely to be impacted by the recent PACCAR Supreme Court judgment. Tim West, Partner in Ashurst's Dispute Resolution practice is joined by Anna Morfey, a Partner in Ashurst's competition litigation team and Rosie Ioannou, Director – Legal Assets at Fortress Investment Group. While some are ringing alarm bells after the PACCAR judgment, this podcast provides more measured analysis. Tim, Anna and Rosie discuss the likely impacts on the litigation funding industry (which have been overstated in some quarters) and explain what it could mean for collective actions currently before the Competition Appeal Tribunal. More broadly, Rosie calls for better understanding about the role of funding, its position in the market, and the positive impact it has. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

Tim West and Jon Gale from Ashurst in London are joined Nick Mavrakis from Ashurst in Sydney, to discuss emerging trends and issues in Australia’s class action landscape. With its mature class action regime, Australia is often seen as a harbinger of what’s to come in the UK. So, in this episode of our class action mini-series, we’ve invited Nick Mavrakis from Ashurst’s Sydney office to share the latest highlights and lowdown from Down Under. Nick discusses the prevalence of shareholder class actions, pharmaceutical claims, product liability, and banking disputes. He emphasises the sophisticated plaintiff’s bar and profitable litigation funding environment that is, in part, driving these actions. Data breach claims are also more prominent, he says, in the wake of rising cyberattacks in Australia and overseas. In conversation with Tim West and John Gale from Ashurst in London, Nick also discusses the pros and cons of different settlement strategies for class actions. And the trio explore the vexed issue of privacy, including the UK’s Supreme Court case involving Google and a more recent case again involving Google and its AI division, DeepMind. To follow this continuing class actions series, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

In the aftermath of the UK Supreme Court’s PACCAR judgement, Ashurst’s Matt Pentecost and Anna Morfey explain what this means for litigation funding. In this, the first episode of our specialty finance mini-series, we shed light on litigation funding as an asset class and the challenges presented by the UK Supreme Court’s PACCAR judgement. Ashurst’s Matt Pentecost and Anna Morfey explain the details and significance of the PACCAR case, including the difference between opt-out and opt-in class actions and the broader application of the Competition Appeal Tribunal regime beyond traditional competition claims. The duo discuss the market’s response, with some agreements being redrafted to make the damages-based elements severable. They reflect on anticipated legislative changes and how the current uncertainty could impact structured finance transactions. This episode is a precursor to the DealCatalyst Specialist Lending Conference in London on 16 November, which will delve into specialist finance, including litigation funding. To follow Ashurst’s continuing specialty finance podcast mini-series, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

Ashurst’s Tim West and Jon Gale are joined by crisis communications expert Simon Pugh, to discuss the PR risks of classes actions. “Oh, I have lost my reputation! I have lost the immortal part of myself…” These words, uttered by the disgraced Cassio in Othello, illustrate that reputation is highly prized – and sorely missed when it is lost. This remains true today, 400+ years after Shakespeare’s Company was performing to audiences full of lawyers at the Inns Of Court in London. In the latest episode of our class actions mini-series, we consider the reputational risks for companies caught up in class actions. Simon Pugh from Portland Communications explains the wider implications of such legal proceedings “which can be substantial from a financial point of view”, the importance of understanding what is driving claimants’ behaviour, and why class action PR and legal strategies need to work hand in hand. To illustrate some of the reputational issues, Ashurst’s Jon Gale talks through some recent cases under the relatively new Competition Appeal Tribunal (CAT) regime. The role of litigation funders is also explored, as well as public perceptions and potential apathy toward compensation distribution. Finally, the trio discuss emerging PR trends for class and group actions, including public interest litigation, the impact of parent company law, and the increasing importance of ESG-related cases. To follow this continuing class actions series, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions.. See omnystudio.com/listener for privacy information.

Ashurst’s Tim West, Tom Cummins and Martin Eimer discuss how companies can mitigate the risk of environmental, social and governance (ESG) class actions. As the scope, disclosure, and scrutiny of corporate ESG outputs continues to grow, the risk of class actions is growing too. In this episode, legal experts from the UK and Germany explore how ESG claims can give rise to class actions – and what corporates can do about it. Together, the guests explore some of the different kinds of ESG disputes that companies might encounter and what typically motivates or triggers class actions. They also explore how ESG class actions can come from many sources, such as investors, customers, or those affected by supply chain activities. Tom Cummins and Martin Eimer compare notes on the UK and German experiences of ESG class actions and highlight the trends to watch for boards and risk committees. They also suggest practical steps that companies can take to mitigate ESG litigation risks. To follow this continuing class actions series, subscribe to Ashurst Legal Outlook on Apple Podcasts, Spotify or wherever you get your podcasts. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.

We are delighted to welcome you to this EU and UK Horizontal Guidelines podcast episode. Ashurst's Fiona Garside, a senior expertise lawyer in Ashurst's Antitrust, Regulation and Foreign Investment team is joined by senior associate Laura Carter and associate Jessica Bracker. In this episode Fiona, Laura and Jessica discuss how the new EU and UK horizontal guidelines deal with different types of information exchange, why this is an area of interest to regulators and practical considerations. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions. See omnystudio.com/listener for privacy information.