Precision in Compliance: UK vs US Disclaimer Nuances—What to Avoid and How to Phrase It Right

Step 1: Why UK and US disclaimer wording diverges—and what that means for you

Disclaimers do the same job on both sides of the Atlantic: they shape expectations, reduce the risk of misleading statements, and mark the limits of responsibility. However, the legal systems that sit behind them are not the same, and that difference drives wording choices. In the UK and EU context, the regulatory landscape is influenced by the Companies Act, the UK Market Abuse Regulation (UK MAR), and rules and guidance from the Financial Conduct Authority (FCA). These regimes emphasize market integrity, the prevention of misleading communications, and careful handling of inside information. UK rules tend to focus on accuracy, fair presentation, and avoiding statements that could create unjustified reliance.

In the US, the Private Securities Litigation Reform Act (PSLRA) and the Securities and Exchange Commission (SEC) framework play a central role. The PSLRA offers a statutory “safe harbor” for forward‑looking statements, but only when specific conditions are met—chiefly, the inclusion of meaningful cautionary language identifying important factors that could cause actual results to differ. US anti‑fraud provisions (for example, Rule 10b‑5 under the Securities Exchange Act of 1934) create liability for material misstatements and omissions, and courts pay close attention to whether disclaimers were clear, specific, and prominent.

Because of these foundations, UK wording often prioritizes avoiding “promises” and carefully distinguishing past performance from future expectations, while steering clear of anything that sounds like investment advice to a retail audience. US wording leans heavily on detailed cautionary statements that enumerate risk factors and explicitly identify forward‑looking indicators such as “anticipate,” “expect,” and “intend.” Both systems discourage vague optimism without support, but the US safe harbor specifically rewards precise cautionary detail and conspicuous placement. Meanwhile, UK compliance culture is attuned to fair, clear, and not misleading standards, to disclosure discipline under UK MAR, and to avoiding reliance language that contradicts regulatory obligations.

Cross‑border circulation complicates matters. A single global deck may need dual‑track wording or separate regional versions to ensure that (a) US safe harbor conditions are satisfied for US recipients, and (b) UK requirements on clarity, prominence, and non‑misleading content are met for UK or EU recipients. Never assume that US‑style safe harbor language suffices in the UK, or that UK brevity will protect you in a US court. Tailor each module to the audience and the legally relevant forum.

Step 2: Risky vs compliant phrasing for three essential modules

A. Forward‑looking statements

• What not to say (UK): Avoid categorical predictions or guarantees such as “will deliver outperformance” or “returns will exceed X%.” Absolute verbs and unqualified projections risk being considered misleading under FCA principles and could clash with UK MAR expectations on disclosure quality. Vague risk boilerplate (“may, might, could”) that is generic and not linked to the actual business context is also problematic.

• How to phrase it right (UK): Use qualified, context‑specific language. Signal the forward‑looking nature (“may,” “expects,” “targets,” “intends”) and pair it with a concise, relevant set of uncertainties tailored to the issuer or fund (market conditions, regulatory changes, liquidity, fees, and execution risks). Emphasize that no duty to update exists except as required by law, but do not imply that legal obligations under UK MAR or listing rules are waived.

• What not to say (US): Do not rely on short, generic cautionary statements. The PSLRA safe harbor requires “meaningful” cautionary language that identifies important factors. Avoid promising outcomes or using “will” language without qualification. Do not omit known, specific risks that management is aware of; omission can undermine the safe harbor.

• How to phrase it right (US): Label statements as forward‑looking, list common indicators (“anticipate,” “believe,” “estimate,” “expect,” “intend,” “plan,” “project,” “target”), and provide a concrete list of material risk factors that could cause actual results to differ—supply chain, regulatory changes, market volatility, customer churn, financing conditions, and operational dependencies. State that no duty to update exists except as required by applicable law. Ensure prominence and proximity to the statements.

Key nuance: In the US, the safe harbor is a statutory defense—its effectiveness depends on specificity and completeness. In the UK, there is no equivalent statutory safe harbor; accuracy and fair presentation are paramount, and care is needed not to create an impression of certainty or advice.

B. Performance and past results

• What not to say (UK): Avoid implying that past returns guarantee future outcomes, or suggesting that volatility will be limited when that cannot be substantiated. Avoid comparing performance to an index without clear explanation of benchmarks, fees, and calculation methods. Do not cherry‑pick time periods without context, as this can be considered misleading.

• How to phrase it right (UK): Use a clear past‑performance disclaimer that states “past performance is not a reliable indicator of future results.” Describe whether returns are gross or net of fees, note the benchmark used and its limitations, and clarify the time period and basis of calculation. If simulated or back‑tested performance is shown, label it as such, highlight its limitations, and explain key assumptions.

• What not to say (US): Avoid stating or implying that historical returns “prove” a strategy’s robustness. Do not omit critical details about calculation methods, survivorship bias, or changes in strategy over the period. Do not bury fee disclosures; net‑of‑fees versus gross‑of‑fees must be explicit.

• How to phrase it right (US): Include the standard warning that past performance does not guarantee future results and add specificity: disclose whether returns are net or gross of fees and expenses; clarify the benchmark; explain material differences between the strategy and the benchmark; and flag any modelled or back‑tested results as hypothetical with limitations. Where marketing rules (e.g., SEC Marketing Rule for advisers) apply, ensure compliance with testimonial, hypothetical performance, and substantiation requirements.

Key nuance: Both jurisdictions require clarity, but the US framework is particularly sensitive to the completeness and prominence of disclosures around hypothetical performance and fee impacts. The UK emphasizes balanced presentation and not misleading retail audiences, aligning with the FCA’s fair, clear, and not misleading standard.

C. Non‑reliance and no‑advice language

• What not to say (UK): Do not overreach with non‑reliance clauses that seem to negate statutory or regulatory duties, such as duties under UK MAR or the FCA Conduct of Business Sourcebook. Avoid phrasing that could imply that recipients cannot rely on any factual statements at all; that may be considered unreasonable or unfair in a consumer context and may be ineffective.

• How to phrase it right (UK): Clarify that the information is provided for information purposes only, is not investment advice or a recommendation, and does not take into account individual circumstances. Encourage recipients to make independent assessments and seek professional advice. Affirm that you accept responsibility only for statements that are accurate and not misleading to the best of your knowledge, and that you do not undertake to update except as required by law. Keep the tone measured, not aggressive.

• What not to say (US): Avoid blanket waivers that suggest recipients waive rights under securities laws; such attempts are generally unenforceable. Do not imply that factual statements are non‑reliable if you are simultaneously asking investors to rely on them; inconsistency damages credibility and could be cited in litigation.

• How to phrase it right (US): State that the document is not an offer to sell or a solicitation to buy securities in any jurisdiction where such offer would be unlawful. Clarify that no investment, legal, tax, or accounting advice is provided, and that investors should consult their advisers. Note that any offering will be made only by means of official offering documents that contain detailed risk factors and disclosures, and that those documents control in case of inconsistencies. Keep non‑reliance language consistent with the rest of the materials.

Key nuance: Non‑reliance language can manage expectations, but it cannot erase duties under law. The US approach emphasizes directing investors to the formal prospectus or private placement memorandum, while the UK approach emphasizes fair, clear, not misleading communications and avoiding implied personal recommendations.

Step 3: Integration into letters and decks—placement, prominence, and cross‑border distribution

Strategic placement determines whether disclaimers work as intended. For investor letters, include a concise disclaimer section near the front (after the cover and before substantive content) and, where appropriate, a shorter reminder at the end. For slide decks, place a full disclaimer slide up front that covers forward‑looking statements, performance, and non‑reliance in one integrated module. If the deck contains multiple sections with projections or hypothetical performance, repeat a shortened reminder near the relevant slides.

Prominence matters. In both jurisdictions, courts and regulators look at whether a reasonable reader would notice and understand the disclaimer. Use readable font sizes, clear headings (e.g., “Important Information,” “Forward‑Looking Statements”), and structured bullets rather than dense blocks. Avoid burying critical cautions in footnotes that are too small to read on a projector. In the US, proximity to forward‑looking content supports the PSLRA safe harbor; in the UK, conspicuousness supports the “fair, clear, and not misleading” standard.

Cross‑border circulation requires discipline:

• Segment your audience. If materials may reach US persons, include US‑compliant forward‑looking and offering‑related language and consider rules on general solicitation. If materials target the UK or EEA, ensure consumer‑facing clarity and conformity with UK MAR sensitivities.
• Consider two versions or modular slides. Some firms prepare UK‑fit and US‑fit versions to reduce clutter. Alternatively, build a modular disclaimer with jurisdiction‑specific subsections clearly labeled (“For US recipients,” “For UK recipients”).
• Watch for offering triggers. Statements that look like offers may require additional legends (e.g., private placement exemptions). Align the disclaimer with any distribution restrictions, such as “Not for distribution to retail investors” where appropriate and legally supportable.

Finally, keep internal alignment. Marketing, legal, and compliance should validate that the body of the document matches the disclaimer. If the narrative is enthusiastic, ensure that risk factors and qualifications are reflected both in the text and in the disclaimers. Consistency between sections reduces the appearance of contradiction.

Drafting checklist for integration:

• Audience and jurisdiction identified, with appropriate modules selected.
• Forward‑looking statements labeled; risk factors are specific and relevant.
• Performance presentation clarified (net/gross, benchmark, period, methodology, hypothetical flags).
• Non‑reliance and no‑advice language balanced and legally accurate; no attempt to waive statutory duties.
• Placement is prominent, font legible, headings clear; reminders near sensitive content.
• Cross‑border restrictions and legends included; offering status addressed.
• Consistency checks complete; no contradictions between headline claims and disclaimers.

Step 4: Practice through reflection—how to convert problematic lines into UK‑fit and US‑fit statements

When you refine disclaimer language, your goal is not to make text longer but to make it safer and clearer. Start by diagnosing exactly what is risky in a given sentence: Is it a promise (“will deliver”)? An omission of risk? A lack of context about performance? Then apply the jurisdictional lens.

For forward‑looking ideas, UK‑fit wording should soften absolute verbs, anchor expectations to assumptions, and avoid sounding like a personal recommendation. US‑fit wording should explicitly flag forward‑looking status and enumerate material risks that could cause actual results to differ, meeting PSLRA expectations. Resist the urge to reuse generic boilerplate; both systems value specificity. Replace vague references to “market risks” with tailored items such as “interest rate volatility,” “customer attrition,” or “regulatory approvals.”

For performance, beware of implicit guarantees. If you reference a track record, disclose its basis. In the UK, highlight that past performance is not a reliable indicator and identify whether figures include fees. In the US, make the same point but add the clarity demanded by the SEC’s marketing rules where applicable—define composites, explain material limitations, and describe how hypothetical results were constructed. Position these clarifications near relevant charts and not only in a distant appendix.

For non‑reliance, tone and scope matter. UK readers should see that you are not giving individualized advice and that you are not promising to update beyond legal obligations. US readers should be guided to the formal offering documents and reminded that nothing herein constitutes an offer or solicitation. In both cases, avoid language that seems to disclaim responsibility for accuracy. Your aim is to prevent inappropriate reliance, not to deny accountability for what you actually say.

Common pitfalls to keep in view:

• Over‑promising with definitive verbs. Replace “will” with “expects,” “aims,” or “targets,” supported by conditions.
• Boilerplate that is too generic. Provide concrete, relevant risks rather than a laundry list of unrelated items.
• Inconsistent messaging. Ensure that optimism in headlines is tempered by the same factors disclosed in disclaimers and the main text.
• Invisible placement. If an investor cannot reasonably see or read the disclaimer, its protective value drops sharply.
• Cross‑border muddle. Mixing US safe harbor cues with UK‑only documents can look careless; equally, UK‑style brevity may not satisfy US litigation risk.

By grounding your drafting in the differences between UK and US frameworks, avoiding high‑risk phrases, and adopting precise, context‑specific formulations, you convert disclaimers from a last‑minute afterthought into a well‑integrated compliance asset. The result is writing that informs without misleading, protects without overreaching, and travels better across jurisdictions. This is the essence of precision in compliance: knowing what to avoid, how to phrase it right, and where to place it so it does real work for both you and your readers.