Arbitration analysis: In JSC DTEK Krymenergo v The Russian Federation, the Commercial Court granted a stay of enforcement of an investment arbitration award against Russia under section 103(5) of the Arbitration Act 1996 (the Act), pending annulment proceedings in The Netherlands. The court held that, in the interests of comity, avoidance of inconsistent decisions and efficiency, enforcement should be paused where annulment proceedings at the seat have real prospects of success. Notably, the court declined to order Russia to provide security. The decision provides practical guidance on the court’s discretion under section 103(5) and offers insight into the management of investor-state disputes involving sovereign parties and politically sensitive issues. Arbitration practitioners should be aware that a stay may be granted even in high-value or politically contentious cases, and that courts will not lightly second-guess the supervisory court at the arbitral seat. Written by Tatiana Minaeva partner and Fred Kuchlin, senior associate of RPC.

This Practice Note examines the enforcement regime created by the Subsidy Control Act 2022 (SCA 2022), focussing on two key aspects: • the process under which certain subsidies are required to be referred to the Subsidy Advice Unit (SAU) within the Competition and Markets Authority (CMA), and • the process by which interested parties may seek review of decisions to award financial assistance in the Competition Appeal Tribunal (CAT) Subsidy control is a ‘challenge regime’ under which the compliance of decisions made by public authorities to award financial assistance may be the subject of claims for review brought by ‘interested parties’ (as defined under SCA 2022, s 70, see below). In most cases, actions will be brought by commercial competitors, but they may also be brought by the Secretary of State. Following Brexit, a political decision was made that the SCA 2022 regime would not establish an equivalent body to the European Commission in EU State aid law (which has the power to investigate

Restructuring & Insolvency analysis: In the first case to consider what is required to make a valuation ‘in a commercially reasonable manner’ for the purposes of exercising the self-help enforcement remedy of appropriation under English law, the court upheld the collateral-taker’s appropriation in full. In doing so, it rejected the collateral-provider’s case that the requisite valuation of the collateral was not conducted in a commercially reasonable manner (as is required by the relevant legislation). Written by Kate Stephenson, partner at Kirkland & Ellis LLP.

This Practice Note sets out the pre-IP completion day and transitional position in relation to proceedings in England and Wales and EU enforcement, including the definition of maintenance for the purposes of international enforcement in an EU Member State together with the applicable procedure (inward and outward), details of the role of Central Authorities and the relevant statutory provisions, having regard to the implications of Brexit. It also includes practical guidance on the Maintenance Enforcement Business Centre. 11pm (GMT) on 31 December 2020 marked the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At that time (referred to in UK law as ‘IP completion day’), key transitional arrangements came to an end and significant changes took effect across the UK’s legal regime. This has implications for practitioners considering issues of enforcement. The EU Maintenance Regulation will continue to be of significance to practitioners in England and Wales in relation to certain enforcement proceedings under its transitional regime: See: Background to the EU Maintenance Regulation. For further guidance, see Practice

Summary The nature of the asset covered by the security often dictates the manner in which it will be realised to produce value for the security holder upon enforcement of security. Cash in a bank account is perhaps the simplest asset to realise as it can normally be either set off or appropriated against the secured debt. Other enforcement resources For issues a security holder should consider before enforcement of security, see Practice Note: How to prepare to enforce security. For enforcement of different types of security, see the following Practice Notes: Enforcement—debentures and floating charges and Enforcement—fixed charges. For enforcement over shares and land, see the following Practice Notes: Enforcement—security over land and Enforcing share security which deal with issues arising specifically on the enforcement of security over these two important asset classes. Forms of security and quasi-security over cash in an account There are a number of ways a creditor can create a security interest in (or have first recourse to) cash in a bank account and this depends upon whether the account

What is a debenture? In the context of secured lending, the term 'debenture' means a form of security agreement that grants security interests over a broad range of the security provider's assets as collateral for either the security provider's own obligations or the obligations of a third party. Debentures typically include: • fixed security over specific assets, ie: ◦ mortgages (including assignments by way of security) ◦ fixed charges, and • a floating charge over all of the other assets of the security provider (ie all the assets that are not covered by the fixed security) For more information on debentures and their formalities, see Practice Note: Key features of debentures. In the event that a company cannot meet its obligations under a loan agreement or other financial arrangement, lenders will need to consider the options available to them to recoup their losses. One option is to enforce their security. Subject to the security having been duly registered at Companies House and at any relevant specialist registry, a secured lender can

This Practice Note considers the enforcement options available to lenders where they hold fixed security. In particular, it covers: • the options available when taking enforcement action, and • a list of specific considerations when enforcing over specific asset types Secured lenders will normally aim to ensure that as much of their security is fixed as possible. It is generally not possible to take fixed security over all asset types because the level of control that is required to ensure that the security is fixed is incompatible with the borrower running its business effectively, eg stock and cash in current accounts. A lender will often, therefore, take a debenture to enable it to take both fixed and floating security over all the assets of the company. A debenture may include legal and/or equitable mortgages over land and shares, fixed charges over assets such as cash deposits and goods and chattels, assignments of intangibles such as contract rights and a floating charge over all remaining assets. For information on debentures, see Practice Note: Key features of debentures.

Summary The nature of the asset covered by security often dictates the manner in which it will be realised to produce value for the security holder upon enforcement. In the case of goods and chattels the security holder will have a suite of remedies available to it that are in legal terms similar to those available where security has been taken over land, see Practice Note: Enforcement—security over land. There are two important exceptions to this general rule. First, foreclosure is not available where a charge or pledge is taken over goods or chattels. Secondly, where the security over goods or chattels is documented and given by an individual, it may be a bill of sale and there are statutory restrictions upon the exercise of the remedies available to the security holder. These are contained in the Bills of Sale Act 1878 (BSA 1878) and the Bills of Sale Act (1878) Amendment Act 1882 (BSA(1878)AA 1882). Although the remedies may be technically similar to those available where security is taken over land, the implementation of those

The term receivables is often used to refer to book debts, although strictly speaking book debts is a narrower term because it refers to ‘debts accruing in the ordinary course of... trade as are usually entered in the trade-books’ of a company. A receivable has a wider meaning than ‘book debt’ and would include: • book debts • the right to receive a payment under a loan agreement • rights to payments under contracts; and • rights to refunds of tax All other liquidated monetary claims of the security provider would be encompassed by the term ‘receivable’. Often much of the value comprising a security package is to be found in the receivables due to the security provider. How best to realise the value in the receivables will form a key part of any enforcement strategy. Collection by any receiver or administrator appointed is a common option. Where there is a large portfolio of debts that may take considerable time to collect, specialised collection agents may be used by the security holder or

Security over land can be taken by way of mortgage or charge with the appropriate form often depending on the significance of the land to the borrower's business or the relevance of the land to the particular transaction. Where the land is considered a material asset or the loan is used to acquire or develop land, lenders are more likely to require a ‘charge by way of legal mortgage’. If the land is a less significant asset, lenders may be prepared to accept an equitable mortgage or charge. The lender will often have a debenture, containing a combination of fixed and floating security over all of the borrower’s assets, including its rights, title and interest in the real property owned by it. A 'charge by way of legal mortgage', is commonly contained in the debenture, or sometimes as a standalone security document. For more information on the potential security available, see Practice Notes: Types of security and Taking security over land. To perfect security over land granted by a company registered in England & Wales,

This Practice Note summarises: • the different forms of share security • the main enforcement options open to security holders • practical considerations for security holders in determining the appropriate enforcement mechanics, and • a number of further considerations for security holders depending on the context Forms of share security There are three main types of security which can be created over shares: (a) charge, (b) legal mortgage and (c) equitable mortgage, which are explored further below. Historically, it was possible to take a pledge over shares. The essence of a pledge is the delivery of the possession of an asset as security for the repayment of a monetary debt. This form of security used to be possible in the case of bearer shares. However, from 26 May 2015, pursuant to section 779 of the Companies Act 2006, companies are prohibited from issuing bearer shares. Existing holders of bearer shares were given until 26 February 2016 to surrender and convert them into registered shares (for further information, see News Analysis: Bearer shares—how to avoid a grizzly ending). Charge A

Dispute Resolution analysis: The High Court enforced a final Chinese money judgment at common law, rejecting arguments that supervisory and retrial procedures deprived it of finality or that the Chinese proceedings offended natural justice. A foreign judgment may remain final and conclusive even while an appeal or comparable review remains possible, provided it operates as res judicata in the originating jurisdiction. The restrictive natural justice exception did not permit the defendant to reopen the merits where she had received fair opportunities to present her case but had failed to rely on available evidence or invoke the appropriate statutory ground for retrial.