Thursday, 23 May 2013
A copy, in English, of the recently updated corporate governance code published by the Government Commission on the German Corporate Governance Code is now available: see here or here (pdf). A copy of the Code, with the amendments highlighted, is available here (pdf).
Ireland: Central Bank publishes annual performance statement in respect of financial regulatory activities
The Central Bank has published an annual performance statement in respect of the financial regulatory activities it undertook in 2012 and those planned for 2013: see here (pdf). The document notes that a review of the Corporate Governance Code for Credit Institutions and Insurance Undertakings will be carried out this year. It's also noted that the Bank will continue to lobby the European Commission for the introduction of a corporate governance code for MiFID firms.
A draft code of governance for National Health Service clinical commissioning groups has been published for comment by ICSA: see here (pdf). Further background information is available here.
Wednesday, 22 May 2013
The Court of Appeal judgment HSBC Bank Plc v Tambrook Jersey Ltd  EWCA Civ 576 was published today, following a decision earlier this month to overturn a decision of Mann J given last month in the High Court (see  EWHC 866 (Ch)). At issue was the interpretation of section 426 of the Insolvency Act 1986 and the circumstances in which English courts were able to accede to a request for assistance from a foreign court (here, the Royal Court of Jersey). The trial judge held that assistance could not be given because there was no existing or planned insolvency proceeding in Jersey. The Court of Appeal disagreed. Lord Justice Davis (Longmore and McFarlane LJJ concurring) held that Mann J had adopted an approach and interpretation of section 426 that was unduly and unncecessarily restrictive.
The Supreme Court gave judgment today in Vestergaard Frandsen A/S v Bestnet Europe Ltd.  UKSC 31: see here or here (pdf). Lord Neuberger, delivering the opinion of the court, held that an action for breach of confidence was based ultimately on conscience and that in order for the recipient's conscience to be affected, he must have information which he agreed, or knew, was confidential, or he must be party to some action which he knew involved the misuse of confidential information. A summary of the decision, prepared by the court, is available here (pdf). A summary was also delivered in court this morning by Lord Neuberger:
Tuesday, 21 May 2013
Singapore: the legal framework governing the approval and responsibilities of insurers' directors and other executives
Last year, the Monetary Authority of Singapore published for consultation proposed changes to the legal framework governing the approval and responsibilities of insurers' directors and the holders of other executive positions: see here (pdf). A statement was published today, in which MAS responded to consultees' views and set out several changes to its proposals: see here (pdf).
The Financial Conglomerates and Other Financial Groups (Amendment) Regulations 2013 were made and laid before Parliament yesterday and come into force on 10 June: see here (pdf). An explanatory memorandum is available here (pdf). The Regulations implement, in part, Directive 2011/89/EU and make various amendments to the Financial Conglomerates and Other Financial Groups Regulations 2004, the Capital Requirements Regulations 2006, the Financial Services and Markets Act 2000, the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001.
Monday, 20 May 2013
The Financial Services Agency has published, in English, a policy statement delivered by Taro Aso, Minister of Finance and Minister of State for Financial Services, which includes some measures concerning the financial regulatory framework: see here.
Friday, 17 May 2013
Last month, at the Federal Reserve Bank of Atlanta Conference on ‘Maintaining Financial Stability: Holding a Tiger by the Tail(s)', the Executive Director for Financial Stability at the Bank of England, Andy Haldane, delivered a speech titled Constraining discretion in bank regulation: see here (pdf). Amongst other things, Mr Haldane repeated his call for reform of the regulatory system and advocated the greater use of simple, prudent regulatory metrics. A video recording of an interview Mr Haldane gave at the conference is available below (or see here).
Thursday, 16 May 2013
The Supreme Court has announced that it will give judgment next week in Vestergaard Frandsen A/S (now called mvf3 Apps) v Bestnet Europe Limited: see here. At issue before the court, to quote directly from its summary, was "[w]hether or not a party who is the subject of an admitted duty or obligation of confidence must have actual or objective knowledge that the acts complained of constitute a breach of that duty or obligation".
A new edition of the Takeover Code has been published and takes effect on 20 May: see here (pdf). The new edition contains amendments made by Instrument 2013/3 (here, pdf), resulting from the consultation recently undertaken by the Code Committee of the Takeover Panel in respect of companies subject to the Code (about which see here, pdf).
Wednesday, 15 May 2013
Earlier this year the Government Commission on the German Corporate Governance Code published for consultation proposed changes to the German Corporate Governance Code: see here. Yesterday the Commission confirmed the amendments that will be made to the Code: see here (pdf). A copy of the updated Code was also published: see here (pdf). A copy of the Code with the changes highlighted was also published: see here (pdf). A copy of the Code, in English, will be available here soon.
The Scottish Law Commission yesterday published its report on the consolidation of bankruptcy legislation in Scotland: see here (pdf). The report contains a draft of the Bankruptcy (Scotland) Bill 2013 (to be passed by the Scottish Parliament) and also identifies legislative changes (including some to the Companies Act 2006) that would fall to the UK Parliament.
The Prospectus Regulations 2013 were laid before Parliament last week and come into force on 31 May: see here or here (pdf). An explanatory note for the Regulations, which amend section 86 ("Exempt offers to the public") of the Financial Services and Markets Act 2000 Act, is available here.
Following the conclusion of a consultation earlier this year, the Committee on Corporate Governance has now published its revised Recommendations on Corporate Governance: see here (English, pdf) or here (Danish, pdf).
Tuesday, 14 May 2013
The Commerce and Employment Department has begun a review of the regulatory framework for financial services, starting with the publication of a consultation paper concerning the role and objectives of the Financial Services Commission: see here (pdf).
The Supreme Court of Appeal gave judgment last Friday in Grancy Property Limited v Manala (665/12)  ZASCA 57: see here or here (pdf). The case concerned the operation of section 163 of the Companies Act 71 of 2008, which provides that a shareholder or director may apply to the court for relief in respect of oppressive or unfairly prejudicial conduct. The Supreme Court held that the Western Cape High Court (Cape Town) had erred in deciding that a shareholder had failed to make out a case for relief and in doing so considered, amongst other things, the scope of relief that could be provided. In the course of his judgment, Petse JA observed "... there is much to be said for the proposition that s 163 must be construed in a manner that will advance the remedy that it provides rather than limit it." (para 26). A summary of the decision is available here (pdf).
The codes and principles directory maintained by the European Corporate Governance Institute has recently been updated to include the fourth edition of the Guidelines on Corporate Governance published by the Iceland Chamber of Commerce, NASDAQ OMX Iceland hf. and Confederation of Icelandic Employers: see here.
Monday, 13 May 2013
The Government has published its response in respect of the consultation that took place earlier this year regarding the transposition of the Alternative Investment Fund Managers Directive: see here (pdf). A copy of the Alternative Investment Fund Managers Regulations 2013 has also been published - see here (pdf) - together with a set of questions and answers: see here (pdf).
The European Corporate Governance Codes Network - an informal network of the organisations responsible for writing and/or monitoring the implementation of national corporate governance codes in European Union and European Economic Area countries, and which exists primarily for the sharing of views, experiences and practice - has launched a new website: see here. In addition to providing links to relevant codes and guidance, the website contains a very useful section with links to monitoring reports for the codes.
Earlier this year the House of Lords Economic Affairs Committee began in inquiry exploring the taxation of companies an the global economy: see here. A transcript of oral evidence given at the first evidence session, at which Professor Steve Bond and Malcolm Gammie CBE QC appeared, is now available: see here (pdf).
Friday, 10 May 2013
The Financial Services (Banking Reform) Bill, which was introduced in the 2012-13 session of Parliament, has been carried over into the new session which began this week following the State Opening of Parliament. The Bill provides the framework for ring-fencing banks' activities. A copy of the Bill, as reintroduced, is available here or here (pdf). Explanatory notes are available here or here (pdf). The Bill will next be considered at report stage in the House of Commons.
Thursday, 9 May 2013
The Supreme Court gave judgment today in the BNY Corporate Trustee Services Limited appeals: see here (pdf). A summary is available here (pdf). Amongst other things, the court considered the practical effect of section 123 ("Definition of inability to pay debts") of the Insolvency Act 1986. In this regard, Lord Walker (with whom Lords Mance, Sumption Carnwath agreed) observed (para. ):
[T]he provisions of section 123(1) and (2) should in my view be seen ... as making little significant change in the law. The changes in form served, in my view, to underline that the “cash-flow” test is concerned, not simply with the petitioner’s own presently-due debt, nor only with other presently-due debt owed by the company, but also with debts falling due from time to time in the reasonably near future. What is the reasonably near future, for this purpose, will depend on all the circumstances, but especially on the nature of the company’s business. ... The express reference to assets and liabilities is in my view a practical recognition that once the court has to move beyond the reasonably near future (the length of which depends, again, on all the circumstances) any attempt to apply a cash-flow test will become completely speculative, and a comparison of present assets with present and future liabilities (discounted for contingencies and deferment) becomes the only sensible test. But it is still very far from an exact test, and the burden of proof must be on the party which asserts balance-sheet insolvency"A summary of the court's decision was delivered by Lord Hope and can be watched here:
The ICLR has provided a summary for the recent High Court decision Re House-Clean Ltd  WLR (D) 165: see here. The summary's headnote reads: "Delay was not relevant to the court’s consideration of whether the pre-merger requirements within Part 2 of the Companies (Cross-Border Mergers) Regulations 2007 had been satisfied and the court was obliged to issue a pre-merger certificate to a United Kingdom-based merging company if those requirements had been carried out." The decision is not, at present, available on the BAILII database.
The Indian Parliament's current term was brought to end yesterday, two days early. The Companies Bill 2012, which was passed by the Lok Sabha last December (see here, pdf), was not passed by the Rajya Sabha. The chairman of the Rajya Sabha, in his valedictory remarks (see here, pdf), observed:
The experience of this Session, particularly of its second half, should induce cogitation on a number of matters arising out of the situation in which the House finds itself in its daily functioning. Three questions in particular need to be addressed. One, has the balance between deliberation, legislation and accountability been lost due to regular disruptions of the proceedings? Two, has the time not come to bridge the growing gap between the rules of procedure and the need felt by different sections of the House to voice opinion on matters of concern? This, needless to say, has to be done in an orderly manner to preserve the dignity of the House. Three, has the membership of this august body assessed the impact of disruptive behaviour on public opinion?"
Wednesday, 8 May 2013
A decision of the High Court from last year, Rloans LLP v The Registrar of Companies  EWHC B33 (Comm), was added to the BAILII database earlier this week. The case concerned, amongst other things, the power of the court to give directions under section 1032 ("Effect of court order for restoration to the register") of the Companies Act 2006.
Earlier this week the ICLR published a summary for the recent High Court decision Golstein v Bishop  EWHC 881 (Ch): see here. To quote from the summary's headnote: "The dissolution of a partnership could not be brought about by an accepted repudiation." A copy of the decision has not yet been added to the BAILII database.
Tuesday, 7 May 2013
The Corporate Manslaughter Bill 2013, a private member's bill, was introduced in the Seanad Éireann on 2 May and completed the first stage: see here. Second stage debate has been scheduled to begin today: see here (pdf). A copy of the Bill is available here (pdf). An explanatory memorandum is available here (pdf).
Judgment was given late last month by Mr Justice Blair in Grupo Hotelero Urvasco SA v Carey Value Added SL & Anor  EWHC 1039 (Comm). Of particular interest is the discussion concerning a "material adverse change" clause, about which the trial judge observed (para. ):
The interpretation of a "material adverse change" clause depends on the terms of the clause construed according to well established principles. In the present case, the clause is in simple form, the borrower representing that there has been no material adverse change in its financial condition since the date of the loan agreement. Under such terms, the assessment of the financial condition of the borrower should normally begin with its financial information at the relevant times, and a lender seeking to demonstrate a MAC should show an adverse change over the period in question by reference to that information. However the enquiry is not necessarily limited to the financial information if there is other compelling evidence. The adverse change will be material if it significantly affects the borrower's ability to repay the loan in question. However, a lender cannot trigger such a clause on the basis of circumstances of which it was aware at the time of the agreement. Finally, it is up to the lender to prove the breach."
Monday, 6 May 2013
The Companies Bill 2012, which was passed by the Lok Sabha last December (see here, pdf), was tabled for consideration and passing by the Rajya Sabha last week but this did not happen. The Bill has been scheduled for consideration and passing today: see here (pdf).