Regardless of whether you are in the UK, or the type of technology you use, companies marketing ‘qualifying cryptoassets’ to customers in the UK will need to comply with the Financial Conduct Authority’s financial promotions regime. We published a Cooley alert summarising the regime in March 2023. Last month we noted that the FCA had published a “final warning” reminding companies promoting cryptoassets to UK consumers that they must get ready for the regime.
UK OFSI Uses Disclosure Power as FCA Reviews Sanctions Compliance Systems
On 31 August 2023, the UK Office of Financial Sanctions Implementation (OFSI) used its new disclosure enforcement power for the first time, issuing a report against Wise Payments Limited for breach of financial sanctions. The use of this power is a significant step in OFSI’s efforts to ensure compliance with the UK’s financial sanctions regime and deter future breaches. In addition, OFSI has updated its monetary penalties guidance, shedding further light on how it will use the disclosure power in the future.
Marketing of Cryptoassets – UK’s Financial Conduct Authority Issues ‘Final Warning’
Regardless of whether you are in the UK, or the type of technology you use, companies marketing ‘qualifying cryptoassets’ to customers in the UK will need to comply with the financial promotions regime of the Financial Conduct Authority (FCA), the UK’s financial regulator.
High Court Refuses to Enforce Arbitration Award Relating to Crypto Consumer Contract
In Payward, Inc. and Others v. Chechetkin, the High Court of England and Wales refused the claimants’ claim for the enforcement of a US arbitration award against a UK-based consumer. The court ruled that enforcement of the award would be contrary to public policy as it contravened key provisions of the Consumer Rights Act 2015 (CRA) and the Financial Services and Markets Act 2000 (FSMA).
Issues in Cryptocurrency Fraud Claims
The Courts and Tribunals Judiciary has published the Speech by HHJ Pelling KC: Issues in Crypto Currency Fraud Claims – an update, an interesting and thoughtful review of recent developments given at the ThoughtLeaders4 Annual Crypto in Disputes Conference on 28 June 2023.
Law Commission Publishes Final Report on Digital Assets
On 28 June 2023, the Law Commission of England and Wales published its highly anticipated final report on digital assets following its consultation with industry stakeholders (see this summary of the final report). The comprehensive and wide-ranging report stresses that ‘digital assets are fundamental to modern society and the contemporary economy’, ‘used for an expanding variety of purposes’ and ‘in growing volumes’. It makes few recommendations for actual law reform, concluding that the common law developed through individual cases is sufficiently flexible and able to accommodate most of the legal complexities posed by digital assets (which the report recognises is a very broad term covering very different assets and technologies).
High Court Rules Arbitral Awards Don’t Deprive English Court of Jurisdiction in Crypto Consumer Claim
In Chechetkin v. Payward Ltd and Others[1], the High Court of England and Wales ruled that the existence of an arbitration clause in an agreement between the parties should not prevent the court from hearing the UK consumer’s claim for repayment of sums lost through his trading on the defendants’ cryptocurrency exchange.
Unlocking Cryptocurrency: Commercial Court Facilitates Recovery From Outside Jurisdiction
The London Circuit Commercial Court has handed down a significant judgment regarding the recovery of crypto-assets held on cryptocurrency exchanges and the practicalities of the enforcement of judgments against ‘persons unknown’ located outside the jurisdiction of England and Wales.
The court’s decision in Law v. Persons Unknown and Huobi Global Limited paves the way for future claimants to recover crypto-assets that have ended up outside of the jurisdiction with greater ease and highlights the English courts’ practical approach to the resolution of crypto-asset disputes.
The Million Pound Question: Is My Contract Unfair?
The decision of the High Court of England and Wales in Parker-Grennan v. Camelot UK Lotteries Limited is a helpful case study in how to host a consumer-facing website. It is surprising, given how much care and attention is afforded to the content of terms and conditions, how the presentation of those same terms and conditions to consumers can often be an afterthought. If companies do not get this right, there is a real risk that they may be providing consumers with the ammunition they need to argue that any relevant terms and conditions are unenforceable against them. Accordingly, companies would be well served to revisit their practices to ensure they are not creating unnecessary hurdles for themselves to overcome when seeking to rely on their terms and conditions in any dispute.
Right to Repair
The European Commission recently published proposals for rules promoting the repair of goods. It is likely that there will be class actions in relation to right to repair. The EC has proposed that the legislation would be added into scope of the new Representative Actions Directive that would enable class action style claims where the new obligations have not been complied with.