On Wednesday 27 September 2023, Mishcon de Reya hosted the first in a new series of Disputes Essentials breakfast seminars, which aim to provide the latest updates and practical insights on essential dispute-related topics.

Insolvency statistics for August were recently released and the number of companies entering into formal insolvency processes is the highest it has been for several years.

The economic outlook isn’t great, with the IMF predicting growth in the UK will be lowest of all the G7, off the back of pandemics, wars, energy crises, labour shortages, and borderline hyperinflation.

1. SOLVENCY II 1.1 Solvency II Directive review: ECON agrees position on Solvency II Directive review On 27 July 2023, the European Parliament’s Committee on Economic and Monetary Affairs (ECON) published a report on its agreed position on the Proposal for a Directive amending the Solvency II Directive1 (Proposed Directive).

The economies of the United States (U.S.) and Canada are closely intertwined. As operations expand across the border, so too do the complexities associated with carrying on business - particularly the insolvency of a company spanning both jurisdictions. As such, understanding how to navigate the complexities of Canadian insolvency regimes is essential to successfully doing business in the country.

It has long been established that where the circumstances in which funds are advanced by a shareholder to the company in which they own shares is unclear, the court must consider the "surrounding circumstances" when determining how to characterize the advance. Historically, "surrounding circumstances" were understood to be the circumstances extant at the time the transaction was effected: (e.g., Ghassemvand v. Premium Weatherstripping Inc., 2017 BCCA 309 [Ghassemvand]).

The Court of Appeal has unanimously overturned an unlawful preference ruling from the High Court, finding instead that the repayment of inter-company debt did not amount to a preference because, at the time the operative decision to make the repayment occurred, there was no desire to prefer.

THE BRIEF

FINANCIAL SERVICES LITIGATION QUARTERLY

FALL 2023

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TABLE OF CONTENTS

Were There Underwriting Requirements for PPP Loans After All? The Sound-Value Requirement May Pose Risk for PPP Lenders

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Noteworthy10

District Court Upholds New ERISA Rules on ESG Investing

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Fourth Circuit Holds That Class-Action Waivers Must Be Addressed Before Class Certification

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Ninth Circuit: Fees for Claims-Made Settlements Must Be Based on Actual Recovery

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In this client alert, we set out the key findings by the Court of Appeal in Darty Holdings SAS v Geoffrey Carton-Kelly [2023] EWCA Civ 1135, which considers an appeal against the High Court decision that a repayment by Comet Group plc (“Comet”) of £115 million of unsecured intra-group debt to Kesa International Ltd (“KIL”) was a preference under section 239 of the Insolvency Act 1986 (the “Act”).

Background to the Case

October, 2023 For Private Circulation - Educational & Informational Purpose Only A BRIEFING ON LEGAL MATTERS OF CURRENT INTEREST KEY HIGHLIGHTS * Supreme Court: Dissenting opinion of an arbitrator cannot be treated as an award if the majority award is set aside. * Delhi High Court: When there are two interconnected agreements with conflicting arbitration clauses, the clause contained in the main agreement should be given primacy. * Supreme Court: Admission of claims after the resolution plan has been accepted by CoC would result in making CIRP prolonged and inefficacious.

Industrial and manufacturing businesses face all kinds of challenges: pricing and competitive pressures; regulatory demands; cross-border trade regulations and obligations; and litigation risk stemming from environmental and tort claims. These challenges create risks around every corner, some even rising to the level of "bet-the-company" issues – the things that keep GCs up at night.