Expert Analysis

• Opinion

  Thomas Report Is Final Straw — High Court Needs Ethics Code

  

  As a recent report on Justice Clarence Thomas' ongoing conflicts of interest makes evident, Supreme Court justices should be subject to an enforceable and binding code of ethics — like all other federal judges — to maintain the credibility of the institution, says Erica Salmon Byrne at Ethisphere.

• Ofwat's New Guidance For Water Projects: Key Takeaways

  

  While increased competition is a laudable aim, the U.K. Water Services Regulation Authority's introduction of direct procurement for customers by default for projects above a size threshold could have ramifications for the financial stability of the companies delivering major water infrastructure, say Jennifer Charles and Marianne Anton at Watson Farley.

• Court Ruling Strengthens EU Stance On Non-Notifiable M&A

  

  The recent European Union Court of Justice's decision in Towercast can be seen as part of a pattern of increasingly rigorous scrutiny of M&A, and provides scope for greater intervention by national competition authorities on acquisitions by dominant companies that do not meet the EU or national merger control thresholds for notification, say attorneys at Herbert Smith.

• How Changes To 'Acting In Concert' Will Affect UK Takeovers

  

  The recent changes made to the rules by the U.K. Takeover Panel on who is presumed to be acting in concert will be of most interest to parties proposing to make a bid for a U.K. listed company, and give welcome clarity as to how the U.K. takeover regime operates, say attorneys at Herbert Smith.

• Key Points In Draft EU Foreign Subsidies Regulation

  

  The draft implementing regulation on EU foreign subsidy control provides eagerly awaited guidance on the submission of mandatory notifications, but there are still many open questions, say Paul van den Berg and Merit Olthoff at Freshfields.

• ClientEarth Claim May Expand Scope Of Directors' Duties

  

  In using litigation to hold Shell’s board of directors to account for failing to properly prepare for the net-zero transition, ClientEarth’s actions represent a shift in climate change activism strategy and an unprecedented application of directors’ duties as a mechanism to drive change, say Marlene Henderson and Danielle De Val at Browne Jacobson.

• Volatile Energy Prices Complicate Int'l Arbitration Damages

  

  In the turbulent global energy market, international arbitration is a crucial tool for resolving cross-border disputes — but determining how, if at all, to account for recent energy price spikes when quantifying damages presents many challenges for tribunals, say attorneys at White & Case.

• A Breakdown Of The SRA's Proposed New Fining Powers

  

  Thanks to the Solicitors Regulation Authority's pending new fining framework, which includes guidance on unsuitable fines and a fixed penalties scheme for low-level breaches, firms can expect to see more disciplinary findings leading to an SRA fine rather than referral to the Solicitors Disciplinary Tribunal, say Graham Reid and Shanice Holder at RPC.

• Merger Ruling Shows Risk Of Not Seeking Prior CMA Approval

  

  The recent decision by the U.K. Competition and Markets Authority to unwind the acquisition by Cerelia Group of Jus-Rol demonstrates that despite the voluntary nature of the U.K. reporting regime, parties may wish to consider the potential for wider scrutiny when deciding whether to seek merger control clearance, say attorneys at Hogan Lovells.

• Warranty & Indemnity Insurance Considerations For M&A

  

  With increased competition and greater capacity leading to lower premiums and deal costs, warranty and indemnity insurance is now available to the wider M&A market, and may help to limit risk and help parties focus on other key elements of the transaction, says Alice Wooler at Birketts.

• What The Dignity Takeover Deal Says About M&A Trends

  

  While some public companies may prefer to go private to maximize company growth and shareholder returns, there are potential pitfalls and in the current uncertain economic climate pairing up between private equity and public entities is likely to increase, as evidenced by the recent Dignity takeover deal, says James Lyons at Lawrence Stephens.

• How Geopolitical Change Is Affecting M&A Activity In Europe

  

  Several factors are leading businesses to divest from Russia and invest in central and Eastern European EU member states, with particular sectors attractive to U.K. companies and certain trends in M&A transactional activity emerging, says Oksana Howard at Colman Coyle.

• Discovery Blocking Reform Better Protects French Companies

  

  The 2022 reforms to France's 1968 blocking statute gives French companies more tools to resist abusive discovery requests from foreign competitors and public agencies, but France should do more to defend confidential information and assert its sovereignty, says Raphael Gauvain at Betto Perben.

• A Look At New Vertical Laws, Their Opportunities And Pitfalls

  

  Looking at trends that have gained the most traction under the new vertical laws in the EU and U.K., it is clear that brands should use the transition period wisely, ensuring that lessons have been learned on what to avoid and that go-to-market strategies are future-proof, say attorneys at K&L Gates.

• Why 2023 Could Be The Year Of The Restructuring Plan

  

  As U.K. businesses face a challenging economic environment going into 2023, the stage may be set for a rise in restructuring plans, with early signs such as an increasing body of case law, the pragmatic approach taken by the judiciary to date and the cross-class cramdown mechanism, say Rachael Markham and Charlotte Møller at Squire Patton.