Section title 1 Artificial Intelligence in English Law Professor John Armour Brexit: India’s Revised Deal or no Deal? Insolvency and Robin Dicker QC The third instalment Framework: Too fast outline an ambitious by Mark Phillips QC from too slow? on the ongoing An update on the programme of research into Brexit saga current insolvency the potential application of regime in India, and changes brought about AI to by the Insolvency and English law Bankruptcy Code 2016 A regular review of news, cases and www.southsquare.com articles from South Square barristers SOUTH SQUARE DIGEST March 2019 www.southsquare.com In this issue 3 In this issue 06 12 21 Artificial Intelligence in English Law: Brexit: Deal or no Deal? India’s Revised Insolvency Framework: A Research Agenda Too fast from too slow? Professor John Armour and Robin Dicker The third instalment by Mark Phillips Cyril Shroff and Dhananjay Kumar of QC outline an ambitious programme of QC on the ongoing Brexit saga Cyril Amarchand Mangaldas, together research into the potential application with South Square’s Mark Arnold QC and of AI to English law Matthew Abraham, provide an update on the current insolvency regime in India and the changes that have been brought about by the Insolvency and Bankruptcy Code 2016 ARTICLES REGULARS BVI Strengthening 28 Euroland: Creditors “Blasted 67 From the Editor 3 Brian Child and Matthew Freeman with The East Wind …” News in Brief 87 of Campbells, BVI, write on recent Gabriel Moss QC on the Mergers South Square Challenge 92 significant legal developments Directive and creditor protection Diary Dates 94 as the country and its businesses Legal Eye: return to normal following the 71 CASE DIGESTS hurricanes and mud slides of 2017 Anthropology and law Madeleine Jones explores what, Editorial 33 South Square welcomes new 32 if anything, lawyers have to Banking & Finance 34 Associate Member Professor learn from anthropologists Civil Procedure 36 Christoph G. Paulus Commercial Litigation 38 The South Square Story 74 ‘The set is highly Shareholder Disputes: 54 Company Law 43 Former Member of Chambers Unfair Prejudice Corporate Insolvency 45 Simon Mortimore QC provides David Alexander QC and Adam Personal Insolvency 50 us with the first instalment of Goodison review the unfair Property & Trusts 52 regarded internationally, his history of Chambers prejudice legislation in the context Sport 53 of shareholder disputes Dead-end: permanent stay under 62 with barristers regularly South Square Digest Disclaimer the Model law barred by Gibbs Jeremy Goldring QC considers the The content of the Digest is provided to you for information purposes only, and not for the purpose Court of Appeal’s decision in Re: OJSC of providing legal advice. If you have a legal issue, appearing in courts Company/Insolvency set International Bank of Azerbaijan you should consult a suitably-qualified lawyer. The content of the Digest represents the views of the of the year, winner 2018 authors, and may not represent the views of other Members of Chambers. Members of Chambers CHAMBERS BAR AWARDS practice as individuals and are not in partnership around the world.’ with one another. CHAMBERS UK +44 (0)20 7696 9900 | [email protected] | www.southsquare.com Designed and produced by Creative Interpartners, London SOUTH SQUARE DIGEST March 2019 www.southsquare.com From the Editor 5 From the Editors Following its recovery from Hurricane Many thanks to all for their May now remains engaged in attempts Irma, Brian Child and Matthew contributions. As always, views to re-open talks with the EU to get Freeman of Campbells, review some expressed by individual authors and changes to the “backstop”. It remains recent developments in the British contributors are theirs alone. impossible to predict what the future of Virgin Islands’ legal market. Brexit will be. We hope you enjoy this edition of Closer to home, in the first of a series the Digest. And if you find yourself In equally unsettling news, the of articles by Simon Mortimore QC reading someone else’s copy and wish post-Christmas period saw a number tracing the history of South Square to be added to the circulation list, of further high street insolvencies from its origins to the present day, please send an email to kirstendent@ including the appointment of Simon provides a lively and fascinating southsquare.com and we will do our administrators in relation to HMV, account of the early career of Cyril best to make sure that you will get the Oddbins and Patisserie Valerie, Salmon KC and the beginnings of next edition and all future editions. together with the announcement that chambers. the UK economy had expanded at its Marcus Haywood and William Willson slowest annual rate in six years in 2018. In his regular “Euroland” piece, Gabriel Moss QC reflects on the judgment Against this background of uncertainty, of Snowden J in Re M2 Property this edition of the Digest contains a Invest Limited which considered the number of topical articles. Professor interrelationship between creditor John Armour of the University of protection and the EU Directive on Oxford and Robin Dicker QC consider cross-border mergers. David Alexander the topic of artificial intelligence QC and Adam Goodison consider the (AI) in English law. AI, once a notion unfair prejudice legislation and recent confined to science fiction novels, case law on shareholder disputes. And movies and research papers, is now Jeremy Goldring QC considers the William Willson and Marcus Haywood making a tremendous impact on Court of Appeal’s judgment in Re OJSC society. Whether we are aware of it International Bank of Azerbaijan. or not, AI already pervades much of our world, from its use in banking For an alternative window onto the Welcome to first edition of the and finance to electronic disclosure in legal world, Madeline Jones’ “Legal Eye” large scale litigation. The application turns to the topic of anthropology and South Square Digest for 2019 of AI to English law raises many the law and asks “Are you a rainmaker?” interesting questions, a number of Finally, we have the ever-popular South which will be explored by a programme Square Challenge, which for this edition of research being undertaken by an challenges you to match the judge with interdisciplinary team of academics at the correct hobby… The four months since the last edition Court of Appeal gave guidance on Oxford, as John and Robin explain. of the Digest was published in October the interplay between construction It goes without saying that if you have 2018 have seen the handing down of adjudication and insolvency regimes). Ever topical, Mark Phillips QC any feedback to give us in relation to judgments in a number of important continues his Brexit series with the Digest – positive or negative – we In wider news, Brexit continues to cases in which members of chambers an article which discusses the would be delighted to hear from you. dominate the headlines. As at the have been involved, including Re OJSC possible frameworks for cross- time of writing, “exit day” remains 29 International Bank of Azerbaijan (where border insolvencies and schemes of March 2019. However, there remains the long standing rule in Gibbs and its arrangement following the UK’s exit no consensus. On 15 January 2019, an interrelationship with the Cross Border from the EU. overwhelming and decisive majority Insolvency Regulations 2006 was of MPs rejected the Withdrawal Meanwhile, Cyril Shroff and Dhananjay considered by the Court of Appeal), Re Agreement negotiated between the EU Kumar of Cyril Amarchand Mangaldas Noble Group Limited (concerning a highly and the UK government. Then, on 29 together with Mark Arnold QC complicated restructuring, involving January 2019, with just 59 days to go and Matthew Abraham consider an English scheme of arrangement of until “exit day”, MPs narrowly passed India’s recently revised insolvency one of the world’s biggest commodity a government-backed amendment, framework and the changes that traders), Lehman Brothers Australia v tabled by Graham Brady MP, proposing have been brought about in India by Lomas (where Hildyard J considered the the replacement of the Irish the Insolvency and Bankruptcy Code scope of the rule in ex parte James) and border “backstop” with unspecified 2016, a landmark event for the Indian Bresco Electrical Services Ltd v Michael “alternative arrangements”. Theresa insolvency regime. J Lonsdale (Electrical) Ltd (where the CherryX per Wikimedia Commons © International Bank Azerbaijan SOUTH SQUARE DIGEST March 2019 www.southsquare.com AI in English Law 7 Artificial Legal services are a major contributor to the UK use their brain – most obviously, processing 1. See e.g. E Brynjolfsson, D Rock, economy, accounting in 2016 for 1.5% of domestic and analysing information. and C Syverson, GVA and generating a trade surplus of £4bn.3 If ‘Artificial Intelligence Intelligence The classic assessment of whether a system and the Modern implemented effectively, AI offers opportunities functions as well as a human is the so-called Productivity Paradox: to improve legal services both for commercial A Clash of Expectations “Turing test”, in which a human is asked to and Statistics’ and M parties and individuals. We are collaborating, engage in conversation with messages sent Trajtenberg, ‘AI as the along with an interdisciplinary team of academics Next GPT: A Political- in English through a mechanism that does not reveal Economy Perspective’, at Oxford and a range of other private sector whether the party on the other side is human in AK Agrawal, J Gans partners, on an ambitious programme of research and A Goldfarb (eds.), or not.7 If a human participant cannot distinguish The Economics of Artificial into the potential application and limitations of the communications of an artificial system from Intelligence: An Agenda AI to English law.