Bryan Cave Leighton Paisner
20 Experts
3 Contributions by Bryan Cave Leighton Paisner
PRACTICE NOTES
Aftermarkets
Aftermarkets matter greatly to producers of sophisticated technical equipment and to businesses following a ‘razors and razor blades’ commercial model. Competition concerns in aftermarkets are not limited to a single sector. While many disputes feature the technology industry, similar issues have appeared across a broad range of other fields.
a primary product (eg equipment, hardware or software), and
an aftermarket good or service (eg parts, repair services, or software support)
The decisive arena is the downstream aftermarket, which frequently delivers highly profitable, repeat revenues coveted by proprietary equipment manufacturers as a way to recoup significant research and development spend.
Independent service organisations (ISOs) and other third parties offering rival aftermarket goods or services often clash with manufacturers. Producers may seek to avoid enabling ISO competition, while ISOs operating solely in the aftermarket may view competition from manufacturers as unfair.
For instance,
Competition
PRACTICE NOTES
Practice Note
The unanticipated arrival of the Competition and Markets Authority (CMA) — or another sector regulator — to execute a dawn raid is rarely welcome for any organisation and its officers or employees. This Practice Note sets out an outline of the CMA’s inspection powers, including unannounced visits, addressing:
the CMA’s authority to carry out dawn raids
the CMA’s ability to conduct interviews
the boundaries on these powers (for example, legal privilege and protection against self-incrimination)
practical pointers, including how to contest a warrant
Specifically, the Note examines powers linked to civil investigations (undertaken under the Competition Act 1998 and strengthened by the Digital Markets, Competition and Consumers Act 2024 (DMCC Act 2024)) and to criminal investigations into the cartel offence (as provided in Part 6 of the Enterprise Act 2002 (EA 2002)). It also notes that the CMA’s civil powers under Part 1 of the
Competition
PRACTICE NOTES
Hotels, as an asset class, demand significant capital and are exposed to economic swings, since both consumer and corporate spending on accommodation is typically discretionary. Corporate ownership of a hotel can be structured in several ways. This Practice Note focuses on one of the industry’s most prevalent models—the hotel management agreement (HMA). Increasingly, the real estate is held by an independent third party investor or developer (Hotel Owner) rather than the brand that operates it (Hotel Operator). Commonly, the Hotel Owner funds a portion of the purchase or development expenditure with bank borrowing. To secure operating expertise and the advantages of alignment with a wider platform or brand, the Hotel Owner enters into an HMA with the Hotel Operator. The HMA sets out how the Hotel Operator will manage the business within its
Restructuring & Insolvency
18 Contributions by Bryan Cave Leighton Paisner Experts
PRACTICE NOTES
Applicable legislation
Insolvency legislation typically includes bespoke measures for insurers, reflecting the sector’s regulated nature and the significance of insurance to the wider economy. The Financial Services and Markets Act 2023 (FSMA 2023) revises the UK framework for insurer insolvency, clarifying certain aspects and broadening safeguards for insurers and their policyholders undergoing insolvency or write-down processes—the government consulted on these reforms in 2021 and issued its response in April 2022 (refer to News Analysis: Financial Services Markets Bill sets out post-Brexit framework for UK financial services, HM Treasury publishes response to consultation on insolvency arrangements for insurers—LNB News 07/04/2022 78 and Practice Note: The Financial Services and Markets Act 2023—essentials). The Prudential Regulation Authority (PRA) released consultation paper CP3/23, Dealing with insurers in financial difficulties, outlining proposed rules and policy in light of the FSMA 2023 changes (see: LNB News 08/02/2023 70). Those rules came into
Restructuring & Insolvency
PRACTICE NOTES
Under common law contract principles, an insurer cannot pass on the burden of its insurance obligations without the policyholder’s consent. As a rule, this requires a novation involving the existing insurer, the policyholder, and the incoming insurer. An exception arises under Part VII of the Financial Services and Markets Act 2000 (FSMA 2000), which, subject to specified conditions, allows an insurer to transfer the whole or a defined part of its business without securing the consent of each policyholder...
The UK has long operated a mechanism for portfolio transfers. Earlier procedures under the Insurance Companies Act 1982 drew a distinction between long-term insurance (broadly life, annuity, permanent health and pension business) and general insurance. For the former, a court application was required, whereas for general insurance, approval by the regulator was sufficient. In both instances, a persistent difficulty was that outwards
Restructuring & Insolvency
PRACTICE NOTES
STOP PRESS
The Financial Services and Markets Act 2023 (FSMA 2023) revokes the 2004 Regulations (SI 2004/353) with effect from a date still to be appointed, alongside a range of other EU‑derived legislation. The government does not intend to begin revoking individual EU‑derived instruments and provisions unless the regulators have prepared and consulted on rules that are ready for enforcement, and only where it is appropriate that the provisions are replaced with rules. FSMA 2023 also updated the UK’s insolvency regime for insurers, both to clarify certain points and to widen the protections available to an insurer and its policyholders undergoing insolvency or write‑down procedures—the government consulted on these measures in 2021, and published its response in April 2022 (see News Analysis: Financial Services and Markets Bill sets out post‑Brexit framework for UK financial services, and LNB News 07/04/2022 78). The
Restructuring & Insolvency
PRACTICE NOTES
What is the World Trade Organization (WTO)?
The WTO oversees trade agreements that regulate commerce between states. It is also a venue for governments to negotiate bilateral or multilateral trade agreements and to settle trade disputes, helping countries trade with as little friction and disruption as possible. For background reading on the WTO, see: WTO—Who we are and WTO—In brief.
The WTO came into being on 1 January 1995, though its trading rules are older. The General Agreement on Tariffs and Trade (GATT) has provided a framework for global trade in goods since 1948, amended through successive negotiating rounds. Talks in the mid-1980s and early 1990s, known as the Uruguay Round, sought to extend the system to services and intellectual property. That round concluded with an agreement signed on 15 April 1994 by most of the 123 participating governments, which established the WTO. It has 164
Public Law
PRECEDENTS
1 Introduction
The current time is [ insert the exact time ], and I hereby formally commence and open the meeting of Scheme Creditors of [ insert name of the company ] [ with [ insert type of claim ] claims, and the meeting of Scheme Creditors of [ insert name of the company ] with [ insert type of claim ] Claims ]. My name is [ insert name ], from [ insert firm or company name ][ insert details of who the chairperson is eg adviser/administrator/provisional liquidator, etc ]. The meeting [ s ] that [ is OR are ] being held today [ has OR have ] been called by the Company under an Order of the High Court of Justice of England & Wales issued on [ insert date ]. The aim of the Meeting [ s ] is to review and, if
Restructuring & Insolvency
PRECEDENTS
On behalf of Applicant
By: [ insert name ]
Statement No 1
Exhibits: [ insert details ]
Date: [ insert date ]
Filed: [ insert date ]
Court Reference No: [ INSERT COURT REF. NUMBER ]
Court and List
[ In the High Court of Justice, Business and Property Courts [of England and Wales] at [ insert location ], Insolvency and Companies List (ChD); or in the County Court at [ insert location ], Business and Property Courts List; or in the High Court of Justice, Chancery Division ]
In the matter of
[ insert company name ]
And in the matter of the Companies Act 2006
Statement of [ Insert full name ]
I, [ Insert full name ], of [ insert firm/company name ] of [ insert address ], state as follows:
I serve as a [ insert role/job title eg
Restructuring & Insolvency
PRECEDENTS
(pursuant to Part 26 of the Companies Act 2006 of Great Britain)
Between [ insert name of company ] and its Scheme Creditors (as defined in the Scheme of Arrangement). Dated [ insert date ]
1 Definitions and Interpretation
For the purposes of the Scheme, unless the context dictates otherwise or an express provision states differently, the following terms have these meanings:
Act – refers to the Companies Act 2006 of Great Britain;
Admissible Interest – denotes any interest provided for under a contract, any relevant statute, or any other applicable law or judgment;
Admitted Claim – signifies the balance, if any, remaining due from the Company to a Scheme Creditor under clause 10.1 after applying set-off pursuant to clause 11.1;
Agreed Claim – the amount determined as owed by the Company in respect of a Scheme Creditor’s Claim in accordance with clause 8;
Available
Restructuring & Insolvency
PRECEDENTS
IN THE HIGH COURT OF JUSTICE
Business and Property Courts of England and Wales at [insert location], Insolvency and Companies List (ChD); or in the County Court at [insert location], Business and Property Courts List; or in the High Court of Justice, Chancery Division.
Claim No: [No.] of [insert year]
Claimant
In the matter of [insert name of company] and in the matter of Part 26 of the Companies Act 2006
Defendant(s)
Does this claim involve any issues under the Human Rights Act 1998? [Yes or No]
Defendant’s name and address
Details of claim (see also overleaf)
A. The above company (the Applicant) seeks the following orders and directions:
An order sanctioning a scheme of arrangement (the Scheme) under section 899(1) of the Companies Act 2006, provided the Scheme has been approved by the requisite creditor majorities;
Upon such approval, that the application to sanction the Scheme be listed for hearing before a Judge of the
Restructuring & Insolvency
PRECEDENTS
On behalf of: applicant
By: [ insert name ]
No: [ insert statement number ]
Exhibits: [ insert details ]
Date: [ insert date ]
Filed: [ insert date ]
Court Reference No: [ INSERT COURT REF. NUMBER ]
[ IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES] [IN [ INSERT LOCATION ]] [COMPANY & INSOLVENCY LIST (ChD)] OR IN THE COUNTY COURT AT [ INSERT LOCATION ] [BUSINESS AND PROPERTY COURTS LIST] OR IN THE HIGH COURT OF JUSTICE [CHANCERY DIVISION] ]
In the matter of [ insert company name ]
And in the matter of the Companies Act 2006
Statement of [ insert full name ]
I, [ insert full name ], being the [ insert role/job title ] of [ insert company name ] of [ insert address ], make this
Restructuring & Insolvency
PRECEDENTS
Court Reference No: [ INSERT COURT REF. NUMBER ]
[ IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES] [IN [ INSERT LOCATION ]] [INSOLVENCY AND COMPANIES LIST (ChD)] OR [IN THE COUNTY COURT AT [ INSERT LOCATION ]] [BUSINESS AND PROPERTY COURTS LIST] OR [IN THE HIGH COURT OF JUSTICE] [CHANCERY DIVISION] ]
In the matter of [ Insert company name ]And in the matter of the companies act 2006
Report
I, [ Insert name ], of [ insert firm/company ], [ insert address ], was appointed by the Court to serve as chairperson of the meeting[s] of the Scheme Creditors of [ insert company name ] (the Company) (as defined in the scheme of arrangement mentioned below) (the Meeting[s]), convened pursuant to an order made herein and dated [ insert date ] (the Order).
The Meeting[s] [were OR was] held at [ [
Restructuring & Insolvency
CHECKLISTS
This Checklist outlines pragmatic measures for senior managers falling under the FCA and PRA’s Senior Managers and Certification Regime (SM&CR), supporting them in meeting their individual regulatory duties and, in turn, mitigating the prospect of enforcement action.
What do senior managers need to do initially when commencing their role?
Upon starting a new position in a financial institution, senior managers ought to complete a recorded, early review of the risk management framework relevant to their business area, within the first two to three months. For the avoidance of doubt, regardless of the scale of the firm’s compliance or risk function, accountability for regulatory compliance—including the design and performance of the risk management framework—also rests with the senior manager accountable for that part of the business. That review should include setting up meetings with those in the business who best understand how the area was run before the
Financial Services
CHECKLISTS
ARCHIVED:
This Checklist is archived and no longer maintained. Brexit: as of exit day (11 pm on 31 January 2020) the UK is no longer an EU Member State. However, in line with the Withdrawal Agreement, the UK entered an implementation period, during which EU law still applies. This affects this Checklist. It should be read with this context firmly in mind. For further guidance, see: Brexit Bulletin—key updates, research tips and resources, and the Brexit collection. On 3 February 2020, the UK and the EU set out their opening negotiating positions for a post‑Brexit UK‑EU relationship. Although the Political Declaration, appended to the Withdrawal Agreement, provides the framework for the future relationship with the EU, it is not legally binding, so either side may choose to depart from parts or all of the text. If talks on a trade agreement between the UK and the EU
Commercial
CHECKLISTS
ARCHIVED
This Checklist is archived and is no longer maintained.
Brexit
From exit day (11 pm on 31 January 2020), the UK ceased to be an EU Member State. Under the Withdrawal Agreement, an implementation period applies during which EU law continues to govern the UK, which affects this Checklist. For further guidance, refer to Brexit Bulletin—key updates, research tips and resources—and the Brexit collection. On 3 February 2020, the UK and EU outlined their initial negotiating positions for the post‑Brexit UK‑EU relationship. Although the Political Declaration, appended to the Withdrawal Agreement, describes the framework for the future relationship, it is not legally binding, so either party may choose to move away from parts or all of it. If talks on a trade agreement between the UK and the EU do not succeed (a no trade deal Brexit), trade between the UK and the EU would
Commercial
CHECKLISTS
ARCHIVED: This Checklist has been archived and is not maintained.
Brexit: From exit day (11 pm on 31 January 2020), the UK ceased to be a Member State of the EU. Nevertheless, consistent with the Withdrawal Agreement, the UK entered an implementation period, during which it remains subject to EU law.
Accordingly, this has implications for this Checklist and its contents.
For more detail, consult the Brexit Bulletin—key updates, research tips and resources—and the Brexit collection for further support.
On 3 February 2020, the UK and the EU outlined their initial negotiating stances for the post-Brexit UK-EU relationship.
Although the Political Declaration, which sits alongside the Withdrawal Agreement, describes the framework for the future EU relationship, it carries no legal force, so either party may depart from some or all of it.
If talks on a trade deal between the UK and the EU were to collapse (a no trade deal
Commercial
CHECKLISTS
ARCHIVED:
This Checklist is archived and no longer maintained. Brexit: From exit day (11 pm on 31 January 2020), the UK ceased to be an EU Member State. Nonetheless, under the Withdrawal Agreement, the UK entered an implementation period during which EU law continues to apply, which affects this Checklist. For additional guidance, refer to Brexit Bulletin—key updates, research tips and resources, and the Brexit collection. On 3 February 2020, the UK and the EU published initial negotiating stances on a future UK-EU relationship after Brexit. Although the Political Declaration, which accompanies the Withdrawal Agreement, outlines the framework for future ties with the EU, it is not legally binding, so either party may decide to deviate from parts or all of it, and outcomes could therefore differ from that text. If talks on a UK-EU trade agreement fail (a no trade deal Brexit), UK-EU trade would
Commercial
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