RPC
19 Experts
3 Contributions by RPC
PRACTICE NOTES
ARCHIVED : This Practice Note is archived as of July 2020.
On 31 January 2020, the UK left EU membership and entered a transition period during which EU law still applied. Throughout that time, the EU’s GDPR continued to operate in the UK and, for EEA and UK data protection purposes, the UK was broadly treated as an EU (and EEA) state. Accordingly, any mentions of EEA or EU states in this Practice Note should be taken to include the UK until the transition period ended. For additional guidance, see Practice Note: Brexit—implications for data protection [Archived]. After the Brexit transition ended:
The EU GDPR was, in UK law, replaced by a UK GDPR regime closely modelled on the EU GDPR, including a like-for-like Article 17 (right to erasure); see Practice Note: The UK General Data Protection Regulation (UK GDPR).
Information Law
PRACTICE NOTES
IP COMPLETION DAY:
At 11pm (GMT) on 31 December 2020, the Brexit transition/implementation period ended following the UK’s departure from the EU. From that moment—defined in UK law as ‘IP completion day’—core transitional arrangements fall away and major changes start to apply across the UK’s legal framework. This note provides guidance on topics affected by these developments. Before continuing your research, see Practice Note: What does IP completion day mean for lending lawyers? [Archived].
What is FATCA?
The Foreign Account Tax Compliance Act (FATCA) is US tax legislation enacted under President Obama in 2010. Its principal aim is to help the Internal Revenue Service (IRS) obtain information on US taxpayers with investments held outside the US. As first enacted, FATCA captures many categories of non‑US financial institutions, including banks as well as certain insurance companies and funds, and has a far‑reaching
Banking & Finance
PRACTICE NOTES
This Practice Note outlines the legal and regulatory landscape for assessing whether an arrangement amounts to a contract of insurance, and the potential ramifications of undertaking activities connected to such contracts without the requisite regulatory permissions. For more detail, refer to Practice Note: Identifying contracts of insurance in English law—an introduction, and the decision tree in Identifying a contract of insurance—flowchart.
The legislative and regulatory background
There is no precise or exhaustive statutory definition of a ‘contract of insurance’ in English insurance law. Under the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (RAO), SI 2001/544, a ‘contract of insurance’ means ‘any contract of insurance which is a contract of long-term insurance or a contract of general insurance’. Determining whether an agreement is a contract of insurance is significant because such contracts are likely to fall within the meaning of a
Insurance & Reinsurance
15 Contributions by RPC Experts
PRACTICE NOTES
Awards
Article 36 outlines the rules governing the power to issue awards and determinations, setting the general framework for decisions generally.
Decision making
Where the Arbitral Tribunal consists of a panel of three or more arbitrators, its awards or other determinations are to be decided by a majority of the Tribunal (Article 36.1). Under Article 36.2, the Arbitral Tribunal may resolve to authorise the Chairperson to make procedural rulings alone. Any such arrangement ought to be notified to the parties, commonly by way of a procedural order...
Arbitration
PRACTICE NOTES
Costs of the Arbitration
Under the LCAM Rules, the “Costs of the Arbitration” comprise three elements:
the fees of the Arbitral Tribunal
the Administrative Fee (which includes the Registration Fee)
the expenses of the Arbitral Tribunal and LCAM (Article 44.1)
The amounts for each are detailed in the Schedule of Costs at Appendix II.
Registration Fee
LCAM’s Registration Fee is £1,500, as set out in Appendix II, Article 1 of the Rules. This fee is applied as a credit towards the Advance on Costs payable by the Claimant under Article 46. If the Registration Fee is not paid when the Request for Arbitration is filed, the Secretariat will specify a deadline for payment. If it remains unpaid after that period, the Secretariat will dismiss the Request for Arbitration. Where the Registration Fee has not cleared, the arbitration will not be treated as
Arbitration
PRACTICE NOTES
Procedural directions and timetable
Once the LCAM Board has confirmed the appointment (Article 18.1), the LCAM Secretariat passes the matter to the Arbitration Tribunal. Under the LCAM Rules, the Arbitral Tribunal enjoys broad latitude in shaping the procedure and managing the progress of the arbitration. Articles 19.1 and 19.2 provide that, subject to the Rules and any party agreement, the Tribunal may run the arbitration as it deems suitable, provided it acts impartially, pragmatically and expeditiously, while ensuring each party has an equal and reasonable opportunity to present its case. This discretion must be exercised within the framework of the LCAM Rules and any arrangements reached by the parties, and at all times the Tribunal should balance efficiency with fairness. Nevertheless, there are several key features of the LCAM Rules that both the Tribunal and the parties should keep in
Arbitration
PRACTICE NOTES
Consolidation and Joinder
The LCAM Rules adopt a more restrained (and plain) position on joinder and consolidation, by comparison with the wider powers afforded under some of the other arbitral institutions’ rules elsewhere. Under Consolidation Article 11.1, where two or more arbitrations are initiated that relate to a legal relationship binding the same parties, the LCAM Board may, upon a party’s application, resolve to merge those arbitrations. Any such determination is contingent on prior consultation with the parties and the Arbitral Tribunal(s), if already constituted therein...
Arbitration
PRACTICE NOTES
Background
Several arbitral bodies, including UNCITRAL, have in recent years introduced expedited or fast‑track regimes aimed at lower‑value claims and at parties seeking to avoid a protracted arbitration process. Ordinarily, such frameworks compress the timetable, with a final award expected to be issued within three or six months of commencement. For a general discussion of Expedited Rules, refer to Practice Note: Expedited (aka fast‑track) arbitration. This note reviews LCAM’s Expedited Arbitration Rules (the Expedited Rules), which have been in force since 1 September 2022; see also Practice Note: LCIA (2020)—guidance on creation of a fast‑track procedure. Under Article 1.2 of the Expedited Rules, the scheme comprises a complete, self‑contained, documents‑only route for the resolution of disputes through arbitration before a sole arbitrator appointed by LCAM. The LCAM‑administered process under the Rules is designed to be
Arbitration
PRACTICE NOTES
Under Articles 9.1 and 10, the LCAM Board may decide that LCAM plainly has no jurisdiction over the dispute and, accordingly, may dismiss the case, in full or in part, as appropriate. Article 19.3 of the LCAM Rules likewise affirms that an arbitral tribunal can determine its own jurisdiction. Accordingly, a party may invite the LCAM Board to dispose of the matter on jurisdictional grounds, thereby avoiding the time and expense of constituting an Arbitral Tribunal at that stage. However, the Board will exercise this authority to decide any alleged ‘manifest lack of jurisdiction’ only before the case is referred to the Arbitral Tribunal under Article 18, and not after that procedural step. Once referral occurs, it is anticipated that all questions of jurisdiction should be addressed by the Arbitral Tribunal rather than by the Board. While it might seem more
Arbitration
PRACTICE NOTES
Procedure for appointment of the Arbitral Tribunal
The process for constituting the Arbitral Tribunal starts once the LCAM Board has the Respondent’s Answer and, where necessary, any additional information it has requested under Article 5. Under Article 13.2 of the LCAM Rules, the parties are free to agree any method for appointing the Arbitral Tribunal. If, however, the parties fail to agree the number of arbitrator(s) or who they should be within the deadline they have set, the LCAM Rules provide for the appointment of an arbitrator, as described below.
Every appointment in LCAM arbitrations, whether made by the parties or by the LCAM Board, requires the LCAM Board’s confirmation (Article 13.1) once the arbitrator’s statement of impartiality has been received. That confirmation is at the LCAM Board’s absolute discretion, and the parties cannot contract out of this
Arbitration
PRACTICE NOTES
Duty of impartiality and independence
Each member of the Arbitral Tribunal is required to remain unbiased and independent of the parties (Article 14.1). In broad terms, the Tribunal enjoys discretion to manage the arbitration as it deems suitable, provided it complies with the LCAM Rules and any arrangement between the parties (Article 19.1). That discretion is constrained by a duty to conduct the proceedings in an impartial, practical and swift manner, giving every party an equal and reasonable chance to put forward its case (Article 19.2). Although the expression ‘impartial, practical and expeditious’ is not commonly found in the rules of other well established arbitral bodies, it does not, in substance, differ from the familiar requirements of fairness, efficiency and expeditiousness recognised elsewhere.
Statement of impartiality
Before appointment, any proposed member of the Arbitral Tribunal must sign a declaration of impartiality and
Arbitration
PRACTICE NOTES
Background
The London Chamber of Arbitration and Mediation (LCAM) is a London-based institution that delivers administrative support for resolving disputes. It operates under the auspices of the London Chamber of Commerce and Industry (LCCI), as part of LCCI’s longstanding commitment to arbitration and dispute resolution work. Founded in 1882, LCCI set as one of its stated aims the undertaking of arbitration and the settlement of disputes arising from trade, commerce, or manufacture. While LCAM might look like a comparatively recent addition, it is in reality a revival of the arbitration scheme created by LCCI in 1903, then known as the London Chamber of Arbitration. The City of London Corporation endorsed that scheme, and the Institute of Arbitrators also took part in its management. Up to 28 November 2016, by-law 6.01 of the London Chamber of Commerce stipulated that disputes brought to the Chamber for
Arbitration
PRACTICE NOTES
This Practice Note offers a concise overview of how spare parts are treated under the main IP rights recognised in English law (designs, trade marks, patents and copyright). It also includes illustrations of how the rules operate in practice and down-to-earth guidance for rights holders and for businesses that make and/or sell spare parts.
What are spare parts?
A ‘spare part’ is an interchangeable component kept in stock and used to repair or replace failed units. Spare parts are integral to logistics engineering and supply chain management, frequently supported by dedicated spare parts management systems and distinct markets focused on the manufacture, supply and/or fitting of parts, including businesses where spares are a principal offering, such as garages and repair centres.
Designs
The connection between design rights and spare parts is especially close, as in certain circumstances protection can cover a part of a product, not only the
IP
PRACTICE NOTES
The Copyright, Designs and Patents Act 1988 (CDPA 1988) states that the author of a work is the individual who brings it into being. The creator is not invariably the proprietor of a work, though, as a rule, they hold the initial copyright unless the work is produced in the course of employment (see below), when the employer takes it. Knowing who the author is matters across much of copyright law. For instance, the duration of protection typically runs by reference to the author’s lifetime; authors may assert moral rights; and protection might not subsist at all unless the author holds the requisite qualifying status. Identifying the owner of the copyright is also crucial; as a matter of prudence, title and ownership ought to be confirmed before acquiring or taking a licence of a work. Ownership is equally central in
IP
PRACTICE NOTES
Defending a claim of copyright infringement
In most copyright infringement cases, a defendant will first challenge the claimant’s position on copyright itself, contending either that no copyright exists in the work identified, or that any subsisting copyright is not owned by the claimant (and sometimes both). The next step is often to assert that, even assuming copyright does subsist, there has been no infringement. This may include arguing that the original work and the accused material lack sufficient similarity, or adducing evidence that the disputed work was created independently, i.e. that no copying occurred.
Finally, there are specific statutory carve-outs to infringement, predominantly set out in the Copyright, Designs and Patents Act 1988 (CDPA 1988). These are referred to as permitted acts. The range of permitted acts applying to copyright is extensive, with several also relevant to database right. Where other legal claims arise, such as
IP
PRACTICE NOTES
The Copyright, Designs and Patents Act 1988 (CDPA 1988) grants the copyright holder in the UK the sole authority to undertake a variety of acts in relation to any copyright work. Where those specified acts in the CDPA 1988 are carried out by someone other than the owner, without consent, this may amount to an infringement of the owner’s exclusive rights.
Status of EU copyright law in the UK
As of 31 January 2020, the UK ceased to be a Member State of the EU. In line with the Withdrawal Agreement, an 11‑month transition or implementation period followed, ending on 31 December 2020 (IP completion day), during which EU law continued to apply across the UK. Thereafter, EU legislation made or brought into force after that date is not binding on the UK. For pre‑existing measures, the legal position immediately before IP
IP
PRACTICE NOTES
Categorisation
Copyright grants the proprietor the exclusive ability to carry out, and to authorise others to carry out, particular acts in respect of qualifying works. The Copyright, Designs and Patents Act 1988 (CDPA 1988) formally sets out categories of protected works, bringing certainty about the types recognised. However, the boundaries between these groupings have since become less distinct, partly because of the digital revolution and the growing intricacy of creative production. This has created uncertainty as to whether the CDPA 1988 categories are exhaustive—so that anything outside them is not protected—or whether copyright may subsist in creations not expressly listed in the statute. Debate therefore persists about the scope of protection available to works that defy neat classification under the statutory scheme.
CDPA 1988, s 1(1) identifies the categories:
original literary, dramatic, musical or artistic works
sound recordings, films or broadcasts,
IP
PRACTICE NOTES
What formalities are required for copyright protection?
Copyright recognises the value of an author’s intellectual creation whenever a creative work is brought into existence. The governing rules are primarily set out in the Copyright, Designs and Patents Act 1988 (CDPA 1988), which came into force on 1 August 1989, in particular.
For works made before 1 August 1989, the earlier Copyright Acts of 1911 or 1956 should be examined as the applicable legislation. Copyright is not a registered right; it subsists automatically once the work has been created and the qualifying circumstances have been satisfied.
As a result, the question of subsistence is often not analysed closely until the owner wishes to licence or assign the right, or to invoke it as a cause of action when commencing proceedings, eg for infringement.
For a creative work to be eligible for copyright protection, certain criteria must be
IP
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