Author: Ben Rich
FCA on Consumer Duty – “Get on with it!” (Updated)
Update from the FCA – the velvet glove goes back on Following on from the FCA’s warning of 25th January that firms needed to ramp up their preparations for the incoming Consumer Duty, on the 3rd of February the regulator has provided a package of advice tailored to specific sectors in the form of a […]
A Christmas present you may have missed
Headlines The 15th December joint policy statement from the Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) follows the consultation paper published in July, which received two responses. This policy statement has adjusted aspects of margin requirements for OTC derivatives contracts that are not transacted through central counterparty clearing, as well as making a […]
MUR v RTI (2022) – The rocky shores of force majeure clauses and non-contractual performance
MUR Shipping BV v RTI Ltd [2022] EWCA Civ 1406 Case handed down in the Court of Appeal on 27th October 2022. The judgement can be found here. Route through the courts Facts MUR are a Dutch shipping company. RTI are a chartering company that form part of a Russian-owned group. The contract of affreightment […]
Lehman v National Power Corporation (2018) – No second bite of this calculation cherry
Lehman Brothers Special Financing Inc v National Power Corporation & Another [2018] EWHC 487 (Comm) (12 March 2018) Summary This case, heard in the High Court, concerned good faith in the exercise of discretion when calculating a close-out amount under the 1992 ISDA Master Agreement. There was a disparity between the two parties over what […]
Hadley v Baxendale (1854) – When the loss is not just ‘run of the mill’
Hadley & Another v Baxendale & Others (1854) 9 Ex 341 This case concerns remoteness of losses – a line must be drawn dictating which losses are recoverable and which are not. There are two aspects – an objective, ‘normal’ possibility of loss, and a subjective, ‘known’ possibility of loss. If the actual loss suffered […]
Dunlop v Selfridge (1915) – Deflating third party claims
Dunlop Pneumatic Tyre Co. v Selfridge & Co. [1915] UKHL 1 ([1915] AC 847) This case provided a statement of the fundamentals of privity of contract – no person can sue or be sued on a contract unless they are a party to it. Established in common law, this has been overturned by the Contracts […]
CFH Clearing v Merrill Lynch (2020) – The ISDA Master Agreement takes precedence over ‘market practice’
CFH Clearing Ltd v Merrill Lynch International [2020] 8 WLUK 84 The England and Wales Court of Appeal in August 2020 confirmed the High Court’s 2019 decision for MLI against CFH, dismissing the latter’s appeal. The courts did not find any express or implied term in the ISDA Master Agreement that a counterparty must adjust […]
Sibner v Jarvis (2022) – The limits of good faith (when your counterparty can absolutely do what they want)
A summary of the recent case High Court case of Sibner Capital Limited v Neil David Martin Jarvis & Suzanne Jane Hughes [2022] EWHC 3273 (Ch) (link to judgment): What takes precedence between a general good faith clause and a clause allowing absolute discretion in certain actions? The High Court has ruled that, in a […]
Putting the TIGER to sleep – ISDA’s proposal for putting intragroup margin exemptions on a permanent footing
ISDA have published a letter from their CEO to HM Treasury, the FCA, and the Bank of England proposing to reform aspects of UK EMIR that touch upon intragroup exemptions. The letter, sent in December 2022, was published on 5th January 2023. ISDA’s intervention has been triggered by the lack of content touching upon EMIR […]