2022 was marked by the rapid imposition of Russia and Belarus-related sanctions by the EU, U.S. UK and other countries, which have impacted commercial and financial business across the globe. Enforcement of these sanctions and consequent action by authorities against those who have failed to comply with them is likely to be a recurrent theme in 2023. The EU has already set out a proposal to make it easier to investigate, prosecute and punish violations of sanctions, in a measure likely to take effect in the coming months. We are also seeing increased cooperation between national sanctions authorities when it comes to enforcing breaches of sanctions restrictions, including information sharing between jurisdictions, and this is only likely to continue.
The global fight against corruption, money laundering and terrorist financing continues, with several jurisdictions bolstering their efforts with the establishment of new enforcement agencies dedicated to investigating and prosecuting financial crime. The importance of identifying the true beneficial owners behind corporate and property assets is increasingly being recognised, as is the use of technology to ensure existing registers can be efficiently and effectively used and maintained. New legislation in a number of jurisdictions has simplified and speeded up processes for the tracing and confiscation of the proceeds of crime. It is likely that this emphasis on the recovery and return of illicitly obtained assets will become ever stronger in the coming months.
In the EU, the collective redress arena is currently dominated by the imminent entry into force of the Collective Redress Directive, which is supposed to be operative in all member states by 25 June 2023. While not all states will meet that deadline, new legislation and procedural rules are being introduced across the states. It is likely that collective actions will become more common in most, if not all, European jurisdictions in the forthcoming years. In the UK, collective proceedings have been bolstered by their increased use in competition claims, while representative actions, the predominant procedure for collective actions in Singapore, may be making a reappearance there.
2022 marked an annus horribilis for cryptoassets, with multiple high-profile crises contributing to, and caused by, a collapse in confidence in the sector referred to by many as a “crypto winter”.
Whether 2023 will mark new spring for cyrptoassets is difficult to say – what is more certain is that the sector will continue to see fall-out from last year’s crises, in the form of increasing regulatory pressure and litigation across the globe. There are cryptoasset-related class actions on the horizon in the US and UK, while in the EU the key Markets in Cryptoassets Regulation is expected to come into force early in the year. Other key jurisdictions are expected to grapple with cryptoasset risks in both their courts and their statute books.
Globally, competition damages claims are on the rise. Antitrust claims remain a constant in the US courts whilst, nearly a decade on from the EU’s Damages Directive, a number of European countries’ burgeoning competition damages regimes are bearing fruit.
That trend shows no signs of letting up. Companies operating in regulated markets remain a target for claims and, as the microscope of competition authorities moves to the tech sector and ESG issues, the breadth of competition law claims grows ever wider.
Claimant firm and litigation funding markets continue to thrive, with beneficiaries increasingly pursuing private enforcement through cartel damages and abuse of dominance claims, as well as recasting consumer claims as competition actions in pursuit of lucrative damages awards. In some jurisdictions, claimants are feeling ever emboldened to bring claims without a prior infringement decision or even a parallel regulatory investigation at all.
Moving into 2023, one thing is for sure – competition remains fierce.
As courts around the world re-adjust to recovery from the recent pandemic, what appear to be common trends? In the world of commercial litigation, continued procedural reforms and streamlining appear to be very much on the agenda; we identify, for example, ongoing changes to key processes in the UK, and broad revisions in jurisdictions such as Italy, Singapore and the PRC. Improving mutual recognition and assistance in international cases is also a consistent theme with developments in the sphere of the recognition and enforcement of judgments and promotion of parties’ choice of forum. Unsurprisingly, the impact of digitalisation is also being felt, not only in the sense of the movement of court processes online, but in the nature of disputes with a greater focus on the tech sector and digital assets.
For more general information on commercial litigation around the globe, you may be interested in our 2022 Commercial Courts Review.
2022 saw an intensification of the challenges faced by businesses globally with the twin shadows of lockdown and conflict looming large. It is against this backdrop that we can expect to see continued high levels of insolvency litigation this year and beyond. There is likely to be an uptick in cases challenging how limited recovery proceeds should be shared among competing creditor groups and questioning how increasingly complex finance arrangements work in practice. With valuations playing a crucial role in both restructurings and insolvencies, directors, advisors and office holders are also expected to be put under increasing pressure from stakeholders. It seems inevitable that the fallout from the disruption in the energy and crypto currency sectors will cause a spike in contentious litigation as parties are forced to address novel legal and practical issues.
Separate to the significant increase globally in litigation and regulatory enforcement focussed on allegations of “greenwashing” (set to continue at pace), there was also an uptick in litigation with a broader ESG focus under various theories of liability including securities laws, consumer protection legislation and fiduciary duties. Anti-ESG litigation strategies pursued in the US (which may inspire follow-on litigation by private plaintiffs) adds to the complexity of the global ESG litigation landscape.
The private sector’s climate commitments and contribution to climate change will be of increasing focus into 2023 and personal responsibility of directors, senior officer holders and trustees to manage ESG-related risks will continue to be scrutinised (with the potential in the UK for more derivative claims to be filed). In the UK and elsewhere, the existence and scope of parent company duty of care, particularly in respect of human rights harms, continues to be tested by claimants. It is clear that anticipating and mitigating ESG risks will continue to be a key and strategic issue for businesses into 2023.