For many businesses just surviving the pandemic could (and perhaps should) be hailed a huge achievement. However, as the bumpy economic climate looks set to continue for the foreseeable future, some fall outs between business owners and directors are inevitable and there is likely to be an upturn in allegations of unfair prejudice.

Here we give an overview of recent unfair prejudice cases – highlighting points of note, before outlining our predictions for the future and ways directors might avoid the pitfalls that lie ahead.

Marty McFly travelled from 1985 to 1955 in Back to the Future; English law is currently embarking on a similar journey in relation to jurisdiction.

A change arising from Brexit has heralded a return to prominence of the doctrine of forum non conveniens, allowing the English Court once again to decline jurisdiction over defendants domiciled in England.

When deciding whether to pursue a legal claim, parties often ask - “do we have the budget for this?” This question is revisited even after dispute resolution proceedings have commenced, due to changes in a party’s financial circumstances, unknown strategies deployed in the legal proceedings, and the fluctuating economic climate (e.g. insolvency risks due to the COVID-19 pandemic).

While a return to some form of commercial normality is anticipated in a small number of wealthy nations, the economic impact of the COVID-19 pandemic will continue to be felt across the globe. The effect has been particularly acute for the debt profiles of many nation states, especially in the developing world. According to World Bank estimates, in 2020 government debt of emerging markets and developing economies reached 60.8% of GDP, an increase from 52.1% in 2019.

The Fundão Dam near Mariana, in Brazil was owned and operated by Samarco Mineração SA, and was designed to accommodate waste resulting from the extraction of iron ore. On 6 November 2015, the dam collapsed, triggering the release of more than 40 million cubic metres of mining waste. This slurry travelled 620 km downriver, destroying multiple villages and over 3000 acres of forest, decimating entire fish populations, and killing nineteen people. The polluting waste eventually found its way, through the Doce River, to the Atlantic Ocean over 400 miles away destroying, damaging or contaminating everything in its path. To date, it remains Brazil’s worst environmental disaster.

Virtual currencies have not only arrived but have become a major player in the global economy. The meteoric rise in their importance and the inherent material risks are not lost on the regulators. Cryptoassets by design facilitate the anonymous or pseudonymous conduct of international commercial transactions, making them the target of choice by sanctioned actors and cybercriminals to channel and hide the source of their financial transactions, evade sanctions and launder money. In the post-pandemic world, with the shift to remote working, ransomware attacks have exploded in volume and criminals have come to rely on digital currencies to force victims to pay millions of dollars to regain access to their own files and to prevent leaks of stolen data.

The UK incorporated its own version of GDPR into domestic law in 2018, with further modifications made following Brexit. The provisions dealing with the jurisdiction(s) in which data subjects may pursue judicial redress do not constitute a complete code and are not so clear-cut. This potentially allows for forum shopping by UK-based data subjects who wish to pursue claims against data controllers and processors. As there is still great uncertainty on whether class actions can be pursued in the English Courts for data breaches (particularly following the Supreme Court’s recent judgment in Lloyd v Google 1), some claimants may be bold enough to pursue their claims outside the UK.

Shareholder Disputes have been on the rise during the past year. Often this is due to the inadequate or misunderstood documents drawn up at the time of relationships being formed to demarcate the value and risks being shared. So this case is a timely reminder of the pitfalls of allocating risk and reward in an SPA whilst failing to grasp the commercial rationale in the way the valuation, consideration and asset portfolio are being redistributed.

International businesses incorporated in the Cayman Islands find themselves increasingly subject to shareholder disputes of different sorts in the Grand Court of the Cayman Islands.

Litigation practices are evolving fast in the UK and Europe. Neither group actions nor litigation funding are new, but they have both reached a tipping point and are now generating their own momentum. However, there is an increasing need to ensure that these commercially funded cases also have a clear and effective communication strategy attached to them. Crucially, this applies to defendants as much as claimants.

Following the exponential and global outbreak of Covid-19 in early 2020, more than 100 countries instituted either full or partial lockdowns which resulted in the majority of hearings and tribunals being held remotely.

Since then, a consensus has emerged that virtual hearings and tribunals are here to stay, at least in some form, for the foreseeable future. This was just one of the findings from a recent BRG study aimed at understanding better the experiences of remote hearings from the perspective of expert witnesses, lawyers and arbitrators from around the world, as well as to contemplate the possible psychological impact of different hearing environments.

On 21 December 2020, the Parliamentary Joint Committee on Corporations and Financial Services handed down their 454 page report “Litigation funding and the regulation of the class action industry” (the PJC Report)1. This followed an extensive consultative inquiry (the PJC Inquiry); comprising over 100 submissions from industry stakeholders and 5 public hearings conducted throughout July and August 2020. Central to the PJC Inquiry was the recent substantial growth in class action activity across Australia, particularly shareholder claims, and the evolution of the litigation funding market in Australia, which had seen a marked increase in participation of international players, and a trend towards increased profits. A key focus of the PJC Report was the need to increase the transparency of the litigation funding market.

When minority shareholders of Cayman Islands entities are being treated unfairly, they are able to take advantage of some strong tools under the Companies Act (As Revised) (the Act). One of those tools are the appraisal rights and fair value assessments available to a shareholder who has dissented from a merger or consolidation pursuant to section 238 of the Act. This type of litigation is experiencing a sharp increase in the Cayman Islands as a result of a number of factors including the delisting of Chinese companies in the United States due to legislative and policy changes there and in China.

The dispute finance market is continuing to mature and grow at pace. When considering funding, one factor that clients and law firms may not recognise as a driver to both the availability and terms of funding is the underlying capital structure of the funder. Yes, case prospects, portfolio diversification and pricing are key drivers of the terms that a funder offers to a client, however as the market becomes more sophisticated, spreading single case investments across multiple pools of capital provides an opportunity for funders to provide more efficient terms across a greater number of claims.

A recent Supreme Court decision handed down on 16 July 2021 has brought welcome clarity to liquidated damages clauses and related damages caps.

Disinformation has become one of the most prominent challenges in navigating the online world. Government bodies, academic institutions, think tanks, and even private companies have researched and proposed innumerable approaches to curb its effects. In this context, defamation lawsuits have emerged as one of the most effective contenders in the struggle against the plague of deceptive information infecting public discourse.

When instituting proceedings, forum is one of the most important decisions to make as opting for the wrong forum could leave the claimant with a dismissed claim, in addition to bearing costs. In this article, we will discuss the attitude of the English, Singapore, and Hong Kong courts when faced with exclusive jurisdiction clauses, and the general rules applicable.

The tide is turning in the world of UK class actions. In the space of just the last three months, we have seen our first three collective actions being given the ‘green light’ to proceed in the Competition Appeal Tribunal – Merricks v Mastercard, Le Patourel v BT and Gutmann v First MTR South Western Trains & Others. These claims are all trailblazers in the mass claims arena and promote a new wave in the UK justice system. With this comes a renewed energy and enthusiasm for the prospects of collective redress in the UK, at least in the competition space for now.

The Courts of Jersey deal with some very complex, specialist and high value claims. Even the largest and most specialised litigation departments on the island find themselves unable to adequately recourse certain aspects of such claims and inevitably need to draw on the huge wealth of talented specialists at law firms (in London and elsewhere) and the English Bar to assist. This makes perfect sense, given that parts of Jersey’s legislative regime, for example certain aspects of company law, are similar to (or modelled on) equivalent UK laws. And because the UK judicial system is much larger than Jersey’s, the judgment library is vast, and therefore the practitioner experience is equivalently broad.

Q. What do you tell people when they ask you what you do?

A. I say I am an investigator, but not a cop or a law enforcement agent - and wait for eyes to roll. I then explain the kind of investigations I do and how, and the conversation carries on from there.

Q. What do you tell people when they ask you what you do?

A. I manage the PR and communication aspects of high profile disputes

Q. What do you tell people when they ask you what you do?

A. That I’m saving the world, one Russian oligarch at a time. The reality is that it is very difficult to explain exactly what it is that disputes lawyers do. I feel incredibly privileged to do a job that I enjoy so much and it is that enjoyment that I generally try to communicate. If anyone shows a genuine interest after my saving the world answer I tell them that people come to me with big problems that I try to solve for them.

With festive period fast approaching and the new year snapping at our heels we welcome our readers to bid adieu to 2021 with the 3rd Edition of the Disputes Community Magazine. By collaborating with the wide range of legal professionals, this publication delivers exclusive new insights and technical knowledge helping our readers stay ahead of the game.

We would like to express our sincere gratitude to contributing authors and our fantastic Communty Partners for their support of this edition and this year. 

Issue 2 of our ThoughtLeaders4 Disputes Magazine is out now and it is BIG! With 21 contributuions and featuring four "60 Seconds with" interviews introducing the diverse range of practitioners behind the Community, this issue, like our Disputes Community, is bigger and bolder that ever. 

We hope that by offering a multi-disciplinary blend of insights on the most pertinent topics ranging from ESG, SPACs to sanctions and sovereign enforcement, this second edition will serve as a helpful compendium of opinions, analyses and commentaries. 

We are delighted to bring you the first edition of the Disputes Community Quarterly Magazine dedicated to the “NEXT GENERATION IN DISPUTE RESOLUTION”.

Just like the Community’s next generation component, this issue is very special to us. By marking the first significant milestone in our development, this bumper publication offers a platform to the  diverse range of current and future leaders in commercial litigation, arbitration and investigations. 

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Understand what is unique about the ThoughtLeaders4 community approach and how you can add Value to our Communities and be Visible through our Virtual platform.

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The days of massive commercial disputes emanating from Russia and other FSU States are dead. That has been a constant concern of many leading practitioners in London, the epicentre of the largest, most high-profile of those disputes in the past 20 years.

Q. What do you tell people when they ask you what you do?

A. I say I’m a lawyer. My days of claiming to be a matador are long gone.