Funding options for commercial disputes

iLaw, litigation law firm in London

With the current uncertain financial situation due to the global pandemic, many businesses may not have the cashflow to enforce their legal rights. As a litigation law firm in London, our team highlights some of the options available where self-funding legal costs is an issue.

 

Third Party Funding

Third party funding from a specialist litigation funder is now commonplace for disputes. The basic concept is that in consideration to finance all or (more commonly) part of the legal costs of a case,  a funder will charge a fee, payable from the proceeds recovered from the case (but only if successful). Third party funding is widely available in commercial disputes.

 

Important points to note:

  1. It is usually available to claimants only. However, defendants may also obtain funding if certain criteria are met;
  2. It may be used in both litigation and arbitration and it is not confined to English Court proceedings and domestic Arbitration;
  3. It is normally available in cases with good prospects of success (60% or above) and where the enforcement is not likely to be an issue;
  4. Funding is usually obtained with an insurance policy (paid for by the Funder) to cover the liability for the adverse costs.

 

Conditional Fee Agreement (CFA)

Another option is a CFA, where all or some of the solicitor’s fee will be deferred and dependent  on winning the case.  As an incentive to act on this case, the solicitor is entitled to charge a success fee on the deferred and contingent element of his fees.  This fee is referred to as a “success fee” and is calculated based on the solicitor’s hourly charging rates. The success fee payable is a percentage increase on the solicitor’s charging rates, which is calculated based on the risk involved – the higher the risk, the higher the percentage.

 

Important points to note:

  1. CFA must be in writing and must state the percentage of the success fee;
  2. It cannot exceed 100% of the solicitor’s normal charges;
  3. It will not cover the liability for adverse costs;
  4. It is not confined to English Court proceedings and domestic Arbitration.

 

Damages Based Agreement (DBA)

A DBA is where a solicitor agrees to act on a contingent basis in return for a percentage of the damages in a winning case (either by settling a case at any stage or after the trial). Where the case is unsuccessful, the solicitor would not receive any fees.

 

Important points:

  1. DBA must be in writing;
  2. Shall not provide for a payment above 50% of the sums recovered by the client;
  3. The cap is inclusive of VAT and barrister’s fees.

 

After the Event (ATE) Insurance

ATE insurance provides cover for litigation costs incurred by parties in litigation or arbitration. It is taken out after the legal dispute has arisen. It is distinct and wider in scope than the aforementioned options, as it covers almost all areas of litigation and is available to both claimants and defendants.

 

The important points to grasp:

  1. Largely confined to English court litigation and domestic Arbitration;
  2. Available only in multi-track cases, where there is no fixed recovery rate;
  3. ATE normally covers the client’s own disbursements and liability for adverse costs.

 

Why is it important?

Litigation may be expensive and sometimes even damaging for a business. The losing party will have to pay not only its own legal costs, but also those of a winning party. For this reason, a calculation of the overall costs of the litigation is close to impossible. The funding options described above are the effective solutions to minimise the risks associated with legal costs.

 

If you would like more information on the funding options available to you, then please contact Madina Tatraeva at madina.tatraeva@ilaw.co.uk.

New law providing protection to Russian sanctioned entities

iLaw - CIS solicitor in London

A new law came into force in Russia on 19 June 2020, known as “Lugovoy law” (Federal Law No. 171-FZ dated 8 June 2020). Under the new law, all disputes involving Russian sanctioned entities or their affiliated companies must now be settled in Russian State Courts. As a law firm with CIS solicitors in London, our team would like to share the summary of the new regulation.

 

The reasoning behind the law

The law was enacted to ensure access to justice not just for persons or companies subject to sanctions, but also to their co-owners and clients, which face difficulties due to their affiliation (even if unintended) with the abovementioned persons or companies. By way of example, Andrew Intrater, the co-owner of an American private equity firm which was recently thriving, cannot now access his firm’s money and the firm cannot pay money to its investors due to Mr Intrater’s connection with a Russian sanctioned oligarch, a major investor in the firm and also Intrater’s cousin.

 

There is a view that, before the new law came into force, there was a tendency that Russian sanctioned entities and their affiliated bodies faced injustice in international arbitration courts and tribunals. The major problems had included:

 

  1. Sanctioned entities and their affiliated companies could not dispose of their assets without OFAC’s licence (which is not easy to obtain) and as a result they could not pay arbitrators’ fees;
  2. Arbitrators refused to hear the disputes;
  3. Banks refused to transfer arbitration fees and sums awarded to winning parties.

 

All this led to uncertainties, missed deadlines and winning parties not being able to recover the sums awarded to them.

 

The new law

Under the new law, Russian courts will have exclusive jurisdiction to hear disputes directly or indirectly involving Russian sanctioned entities or individuals (and those connected with them).

Notably, parties may still agree to resolve their Disputes outside of Russia, but Russian courts will have jurisdiction over such disputes if one of the parties cannot get access to justice because of sanctions.

 

If a party is sued or about to be sued in a foreign court or arbitration proceeding in breach of the new Russian law, such party may request an anti-suit injunctive order from a Russian court. Any party breaching such anti-suit injunction may be fined by the Russian court for the full amount of the claim plus the opponent’s legal costs.

 

Why is this important?

Parties dealing with sanctioned companies or individuals, or anybody affiliated with them, will have to be aware that the other party may seek to refer the dispute to Russian courts, regardless the existence of a relevant international treaty or contractual agreement to refer the dispute to a foreign court.

 

Our recommendations

To minimise the risks associated with the new law, it would be good practice to:

 

  1. Get acquainted with the ownership structure of any company you are planning to deal with (not only Russian companies);
  2. Check the beneficiaries of the company – whether those could be Russian sanction-related individuals or companies;
  3. Analyse the risks of dealing with persons or companies subject to foreign sanctions.

 

If you need help in drafting a contract or you would like advice on how the new law may affect you and how to mitigate the risks associated with it, then please contact Madina Tatraeva at madina.tatraeva@ilaw.co.uk.

UKIPO bursts the bubble of prosecco’s French rival

Nosecco case

The demand for low or non-alcoholic drinks has increased in recent years as people have become more conscious of what they consume and the effect it has on their wellbeing. As a result, many producers have introduced alcohol-free versions of their popular drinks to meet this demand.

In 2017, French company Les Grands Chais de France SAS (LGC) launched a non-alcoholic sparkling drink called ‘Nosecco’, seemingly a play on words to take advantage of well-known drink ‘Prosecco’.

‘Prosecco’ is registered as a protected designation of origin (PDO), which means that only products that are produced, processed, and prepared in the Prosecco area can use the word ‘Prosecco’.

In early 2018, LGC requested protection in the UK for an international trade mark registration, claiming a French priority date. The trade mark, a logo incorporating the word ‘Nosecco’, was opposed by Consorzio di Tutela della Denominazione di Origine Controllata Prosecco (Consorzio), who protect and promote the use of the name ‘Prosecco’.

Consorzio opposed the request on various grounds and the UK Intellectual Property Office (UKIPO) upheld two of them:

  1. The mark was of such a nature to deceive the public; and
  2. Use of the mark misused / evoked the PDO for Prosecco.

LGC’s High Court Appeal

LGC appealed the UKIPO’s decision, making various arguments about the name Nosecco, including:

  1. Nosecco is a novel name which highlights the non-alcoholic nature of the goods.
  2. The suffix “SECCO” means dry in Italian and by prefixing the ordinary English word NO to produce a newly coined and distinctive made-up word NOSECCO, it is considered clear that the pun or play on words is highlighted to show that the goods are not dry.
  3. “Nosecco” may be viewed as a parody of “Prosecco”.
  4. Social media posts referring to Nosecco as “non-alcoholic Prosecco” were a comparison of the two products and recognised the “witty nature” or the “clever concept” of the name NOSECCO.

In June of this year, the High Court dismissed LGC’s appeal. It ruled that the UKIPO was correct to uphold Consorzio’s opposition and conclude LGC’s use of ‘Nosecco’ breached EU Regulations protecting PDOs against “misuse, imitation or evocation”. The Court found that evidence showed the marks would appear similar to the relevant public and that ‘Nosecco’ evokes the PDO.

 

Why is this important?

The High Court’s decision to dismiss the appeal confirms that cases relating to PDOs must be assessed differently to your typical trademark oppositions, as evocation and likelihood of confusion are not the same. This case also illustrates that clever puns and play on words will not always be enough to avoid trade mark oppositions and that PDOs offer a high level of protection.

This matter could bubble along for some time yet as Nosecco is still available to buy in UK shops. It will therefore be worth keeping an eye out to see if the Consorzio take any further action against LGC in the English Courts.

If you would like to discuss any trade mark or copyright issues that your business might be facing, then please contact George Duncan at george.duncan@ilaw.co.uk.

Success for retailers in Supreme Court on interchange fees

dispute resolution law firm in London

On 17 June 2020, the Supreme Court handed down its long-awaited judgment on whether ‘multilateral interchange fees’ are lawful. As a dispute resolution law firm in London, our team summarises the case and shares thoughts on its potential impact on businesses.

Interchange fees are paid by a retailer’s card acceptance provider (or acquirer) to the card issuer for every card payment transaction They make up the majority of fees paid to Visa and MasterCard by retailers.

In a unanimous decision, the Supreme Court upheld the Court of Appeal’s decision that as the interchange fees were non-negotiable, with no incentive for Visa and MasterCard to compete over them, the fees were anti-competitive.

However, the quantum of damages to be awarded to the retailers still has to be assessed and will depend on whether and to what extent the retailers passed on interchange fees to customers. The eventual damages that claimants receive may therefore be reduced if they are found to have passed on the interchange fee.

Nonetheless the Supreme Court’s ruling is undoubtedly a good result for retailers and should lead to settlement payments in the near future. At a time when retailers are suffering heavily from the impacts of COVID-19, this could be a silver lining amidst all the gloom.

If you would like to discuss any competition or corporate dispute issues that your business might be facing, then please contact George Duncan at george.duncan@ilaw.co.uk.

Blockchain & cryptocurrencies legal and regulatory round-up: June 2020

iLaw, a cryptocurrency law firm in London

iLaw, a cryptocurrency law firm in London specializing in technology, has launched a new series of articles, in which our Blockchain, Cryptocurrency and Digital Assets team will be highlighting some of the latest legal and regulatory developments in the UK and globally. In this round-up, Mariya Lazarova and Allan Murray cover:

  1. The announcement of the EU’s regulatory regime for cryptocurrencies;
  2. The spike in consumer uptake of cryptocurrencies in the UK;
  3. The FCA’S Money Laundering Regulations for crypto businesses carrying out certain activities in the UK;
  4. The response of several US Bar associations to the use of digital currencies as a form of payment for legal services;
  5. The new Swiss laws removing legal barriers on blockchain and DLT; and
  6. Bitcoin theft in Russian criminal courts.

EU’s Regulatory Regime for Digital Finance and Cryptocurrencies

On 23 June 2020 during his speech at the Digital Finance Outreach 2020, Valdis Dombrovskis, the EU’s Executive Vice President of the European Commission for An Economy that Works for People, announced that there new measures on the regulation of cryptocurrencies are imminent. Although Mr Dombrovskis’s speech did not give much detail, of particular interest was the mention of regulating stablecoins. In October 2019, Mr Dombrovskis also alluded to the regulation of stablecoins, following Facebook’s plans to introduce Libra. The digital finance strategy and supporting legislation is expected to be revealed later this year. Currently, unregulated cryptoassets will be covered according to the proportionality of their risk to turn Europe into the leader for digital finance.

FCA’s Cryptoasset consumer research 2020

3.86% of the UK general population, or 1.9 million people, are estimated to own cryptocurrencies according to the FCA’s latest report. Most of the holders possess the relevant technical knowledge of the assets as well as an understanding of the associated risks. These findings are significant as they represent a spike of 2.35% of the population over one year. The role of exchanges, particularly non-UK ones, is notable as more than half of crypto owners use their services. With such an increase in popularity, the importance of introducing appropriate regulatory safeguards for cryptoasset trading is equally on the rise.

Deadline for MLR registration with the FCA

Businesses carrying out certain cryptoasset activities in the UK were required to submit their registration applications to the FCA by 30 June 2020. In January this year the FCA became the AML/CTF supervisor for such businesses. Although the technical registration deadline is 10 January 2021, the FCA set the June 2020 deadline to give itself ample time for processing the applications and liaising with applicants on any follow-up requests. The risk for those businesses who failed to submit an application by 30 June 2020 is that their subsequent application may not be processed by 10 January 2021, in which case they will have to cease trading.

Legal costs and digital currencies

Four bar associations in the US have now issued statements on payment in cryptocurrencies for the legal services of their members. The DCB (the District of Columbia Bar Association) was the most recent one, stating that it is “not unethical for a lawyer to accept cryptocurrency”.  Prior to the DCB, official statements were made by the bar associations in Nebraska, New York and North Carolina. There is a slow but steady payment revolution on the rise in the legal sector and, recently, iLaw became one of the first law firms in the UK accepting payment in the form of BTC, ETH or other cryptocurrencies.

Swiss laws and blockchain startups

We have previously noted Switzerland’s attractiveness for banking purposes in the crypto and blockchain sphere.  New legislation has been introduced by the Swiss Federal Council which aims to cut the red-tape on security token transfers, facilitate claims of ownership over a bankrupt’s crypto estate and details how trading platforms and DLT providers can secure a license. The legislative move went through without opposition.

Bitcoin theft is not a crime?

Bitcoin might be a form of property in English law, but in Russia, a criminal court denied restitution to a victim who had to pay ransom to his kidnappers in the amount of 5 million rubles in cash and 99.7 BTC ($900,000 at the time in 2018). The court ruled partially in the victim’s favour on the claim for the rubles. However, the claim for the return of the BTC was not successful as, with no legally recognized status, it was not deemed a crime against property.

If you require legal assistance, contentious and/or transactional, in the field of blockchain, cryptocurrencies and digital assets, please contact our Senior Associate, Allan Murray via email at  allan.murray@ilaw.co.uk or our Trainee Solicitor, Mariya Lazarova at mariya.lazarova@ilaw.co.uk.