
Publication
International Restructuring Newswire
Welcome to the Q2 2025 edition of the Norton Rose Fulbright International Restructuring Newswire.
United Kingdom | Publication | May 2025
In the current geopolitical climate, with the imposition of tariffs and associated macroeconomic uncertainty, publicly traded companies across sectors will need to consider the potential impact on their business in the context of their ongoing disclosure obligations. This briefing focuses on some of the key areas that companies with shares admitted to the Main Market or AIM1 should keep in mind when assessing whether they may be in possession of inside information and in complying with their obligation to disclose such information to the market as soon as possible under the UK Market Abuse Regulation (MAR).
Notwithstanding that there may be a large quantity of publicly available information around particular market-impacting events, with developments well covered in the press and elsewhere, directors will still need to turn their minds on a regular basis to whether they have knowledge regarding the particular impact of such events and developments on the company’s business and outlook which could, under MAR, amount to inside information.
In this context, it will be key to consider what information the company has which is not already in the market and whether, taking into account other information already publicly available, this is sufficiently material to meet the definition. There is likely to be particular focus on whether the information is of “precise” nature and whether the “reasonable investor” test is satisfied.2 In some cases it may be that the company concludes that it does not currently have inside information as the rapidly evolving nature of the situation means it is not yet able to properly assess the impact on its business - although directors should keep in mind that the definition of inside information sets the bar at a relatively low level and that they need to consider current circumstances as well as the likelihood of future developments and whether any information about potential impact already meets the test notwithstanding that the outcome is uncertain.
Some other key areas for boards to consider when assessing whether the company may be in possession of inside information include:
Directors will need to consider not only the direct impact of any imposition of tariffs on the company, but also the wider context and implications – for example, associated exchange rate changes, the potential impact on supply chains, any default under/termination of material contracts etc. Considering the fact specific and potentially complex nature of the definition of inside information, companies should be prepared to seek and record input from their external advisers in any cases of doubt. Given the fast-moving and unpredictable nature of current events, continued monitoring of the position in the context of ongoing developments will also be key.
If the company determines that it is in possession of inside information, this must generally be disclosed to the market as soon as possible. In this context, it is worth noting that “as soon as possible” does not necessarily require an immediate announcement. The FCA has previously indicated that, in its view, MAR permits a short period of time between inside information coming into existence and a public announcement having to be made, in order for preparations for the announcement to be made and to avoid disclosing information which would lead to the public making incorrect or incomplete assessments of the information disclosed.4 Companies are also under a general obligation to take reasonable care to ensure that information they do announce is not false or misleading and does not omit anything likely to affect its import.5 That said, boards should keep in mind that (in the context of any subsequent investigation or enquiries) the FCA will have the benefit of hindsight in assessing the situation and may take the view that a suitable announcement could have been made at an earlier stage.
Where inside information is not announced as soon as possible, this will constitute a breach of MAR unless the conditions for delayed disclosure are satisfied.6 Those conditions are fairly limited and it would generally seem unlikely that the disruption caused by the current macroeconomic environment in and of itself could be relied upon to justify delay. However, each case will of course need to be considered on a fact specific basis in light of the issuer and circumstances concerned (and, as mentioned, the level of uncertainty may also be relevant in the context of assessing whether inside information has in fact arisen).
Key areas directors should keep in mind in the context of any proposed delay in disclosure include:
If it is determined that delayed disclosure is permitted, the situation should be monitored to ensure that an immediate announcement can be made if circumstances change (for example, because of further developments or in the event of an actual or likely breach of confidence). Other FCA guidance on delaying disclosure should also be kept in mind10 and appropriate draft holding announcements prepared.
Given the rapidly evolving nature of current circumstances, in many cases assessing whether disclosure is required is likely to involve finely balanced judgments and the position may not always be clear cut. As a result, it is important for companies to ensure that the board is properly briefed on the requirements of MAR and engages with external advisers where appropriate. Keeping appropriate internal records of information available/considered and decisions taken is also critical. In the event of any regulatory investigation or enquiry, one of the first things that the FCA is likely to request is a detailed timeline or chronology of discussions, actions and decisions. Boards will find it easier to reconstruct and explain their approach, and show that a proper process was followed, where contemporaneous records have been kept. Where a decision is ultimately taken that disclosure is not required or can be delayed, arrangements should be put in place to monitor the situation - this is particularly relevant currently given the fast-moving nature of events.
Bear in mind that internal and external communications may be scrutinised after the event (including those on informal channels such as WhatsApp or Signal which may be best avoided in relation to sensitive corporate matters which should be the subject of more institutional, durable and accessible record-keeping). Any records of legally privileged communications, such as those concerning legal advice received, should be marked as such, kept confidential and protected from inadvertent circulation or disclosure. Legal advice should be sought before any such material is circulated internally or provided to a regulator or any other party.
It is important to note that disclosure of inside information should not be choreographed to coincide with a scheduled announcement.11However, where a company has an upcoming announcement of this nature (for example annual or interim results or a regular trading update) the board will more generally need to take the current situation into account when formulating any statements around outlook, potential risks etc. and any new guidance proposed to be given to the market (for example in relation to financial performance or intended strategy). It should also be kept in mind that such forward-looking statements may impact the analysis around whether further announcement is needed to update the market if things change in the future.
Some of the key practical points that should be kept in mind by companies and their boards include:
The FCA will expect issuers to comply with their ongoing disclosure obligations notwithstanding uncertain market conditions and, in practical terms, will of course have the benefit of hindsight when deciding whether to take any enforcement action for perceived breaches. As such, companies and their boards need to ensure that the impact of current developments on the business is kept under review, relevant individuals are kept up-to-date in their understanding of the requirements of MAR, robust arrangements are in place for timely escalation, consideration and release of information to the market and the keeping of appropriate contemporaneous records, and external advice is sought in the case of any doubt.
Publication
Welcome to the Q2 2025 edition of the Norton Rose Fulbright International Restructuring Newswire.
Publication
In the current geopolitical climate, with the imposition of tariffs and associated macroeconomic uncertainty, publicly traded companies across sectors will need to consider the potential impact on their business in the context of their ongoing disclosure obligations.
Publication
In July 2022 the UK Secondary Capital Raising Review published its report (Report) setting out a series of bold and wide-ranging recommendations for improving the secondary capital raising regime in the UK designed to make it quicker, more flexible, more inclusive of retail investors and more cost-effective, as well as moving towards digitisation and making better use of technology.
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