Best-efforts meaning

ARCHIVED: This Practice Note is archived and is no longer maintained. A bank loan is treated as a non-performing loan (NPL) if more than 90 days pass without the borrower making the agreed instalments or interest payments. Banks experienced an accumulation of NPLs in their books when borrowers' inability to repay was intensified by the financial crisis and subsequent recessions. When NPLs are proportionately high, banks' capacity to manage the riskiness of their lending is diminished. NPLs are a supervisory priority for the European Central Bank (ECB), which monitors the overall level of NPLs across euro area banks. Under the supervisory review and evaluation process (SREP), the ECB assesses whether individual banks adequately manage loan risk and whether they have suitable strategies, governance arrangements and processes in place. The ECB also regularly undertakes co-ordinated exercises to review the asset quality of the banks it directly supervises—it works with national supervisors to establish a consistent and effective approach to tackling and reducing bad loans, drawing on best practices as set...

General checklist What follows is a checklist highlighting matters that a solicitor representing a company’s administrator (and, in some pre-appointment cases, the directors/company) disposing of a business and its assets ought to bear in mind when preparing a sale and purchase agreement (the Agreement). This checklist is suitable for both pre-pack scenarios and sales of the business and/or assets completed after administrators are in office. It is not comprehensive and, depending on the nature of the business, numerous additional points may arise. For further detail, see: Sale and Purchase of Assets—overview and Pre-packs—overview. We also, at points, refer to seeking information from the directors. That will not invariably be feasible, eg where the situation is hostile. Accordingly, if the directors are engaged, they should be able to provide the information and will often be best placed to do so; however, where the position is hostile, or if you act solely for the administrators, any enquiries should be directed to the administrators, or at least channelled via them to the...

This Checklist sets out essential steps for arbitrators to consider when deploying artificial intelligence (‘AI’) tools, or where AI is involved in arbitral proceedings. Given the fast‑moving nature of the technology and the applicable laws and regulations, please be aware that this is not a comprehensive list and should be treated as such. The Checklist is intended to provide guidance on best practice. Understanding AI Key points Notes Definition of AI Artificial intelligence refers to computer systems’ capacity to exhibit human‑like cognitive functions, such as decision‑making, planning, reasoning and knowledge representation. IBM characterises AI as technology that allows computers and machines to emulate human learning, understanding, problem‑solving, decision‑making, creativity and autonomy. WIPO portrays AI as a branch of computer science focused on building machines and systems capable of performing tasks thought to require human intelligence. Machine learning and deep learning are two branches within AI. In recent years, with advances in neural network methods and hardware, AI is commonly regarded as...

This Flowchart This Flowchart supports your decision on whether a data protection impact assessment (DPIA) is necessary when initiating a new project that involves personal data from the outset, helping you decide effectively. It sets out: three scenarios in which a DPIA is mandatory under Article 35(3) of Assimilated Regulation (EU) 2016/679, UK General Data Protection Regulation (UK GDPR); and ten further processing activities for which the Information Commissioner’s Office (ICO) requires a DPIA to be carried out Where a DPIA is not needed, you should think about using a simpler form of review, which we call a privacy impact assessment (PIA) instead. The Flowchart enables you to determine which assessment—DPIA or PIA—best fits your project in practice. For additional guidance on DPIAs and PIAs, see Practice Note: How to complete a data protection impact assessment—DPIA...

This flowchart shows how to handle a data protection incident (including a cyber security incident) in line with the UK General Data Protection Regulation (UK GDPR). It mirrors the UK GDPR’s rules on reporting and recording personal data breaches, alongside the Information Commissioner’s Office (ICO) guidance on breach management. It charts the end-to-end breach lifecycle, offering direction and links to the relevant precedents for each step of the process. See Precedents: Personal data breach plan, Data breach report form—internal and Data breach assessment and action plan, which steer you through every stage of this workflow. Note 1—assemble data breach team The initial action is to bring together your data breach team. Decide who in the organisation is best positioned to respond promptly to the incident and who should support the ensuing enquiry. This typically calls for contributions from specialists across the business, including IT, HR and compliance/legal, and may, in some instances, involve engagement with external stakeholders and suppliers. The Precedent: Personal data breach plan urges you to...

Checklist Many family-run enterprises often begin with a largely informal governance arrangement; relatives share a tacit grasp of duties and relationships, and decisions are taken swiftly at the kitchen table. By their nature these businesses are flexible and informal, with priorities typically guided by doing what is best for the family in line with the family’s values, rather than being driven solely by owners’ profit. However, as the business develops and more family members and other employees come on board, managing operations in this ad hoc way becomes progressively harder, as what was once straightforward to coordinate across a small group becomes complex to control as headcount and responsibilities increase. The pros and cons of formalising the family business are addressed in Practice Note: Family businesses. This checklist sets out questions an adviser can put to the family (or that the family can consider themselves) to help design an effective structure for the family business. The same questions will also help identify the matters to be covered in any...

In this issue: Decision to prosecute and alternatives to prosecution Criminal procedure and evidence Proceeds of crime Appeals and judicial review Sentencing Bribery, corruption, sanctions and export controls Cybercrime and data protection offences Fraud, forgery, tax and theft offences Health and safety and corporate manslaughter offences Other corporate crime updates LexTalk®Corporate Crime: a Lexis®Nexis community Daily and weekly news alerts New and updated content Dates for your diary Trackers Useful information Decision to prosecute and alternatives to prosecution Deferred Prosecution Agreements—an ‘expiry date’ or a ‘best before’? (Guralp Systems Ltd v Serious Fraud Office) The statutory framework for Deferred Prosecution Agreements (DPAs) requires an expiry date within every DPA, mandates that any breach application is made while the DPA remains in force, and provides that where a DPA lasts until its expiry, the proceedings are to be discontinued. In this case, the DPA’s terms specified effectiveness for...

The duty covers activity involving retail customers; however, for certain firms — such as payment services and e‑money issuers — it also extends to interactions with micro‑enterprises with turnover up to £1m. Where the regulator supervises the provision of financial services to small and medium‑sized enterprises, firms engaging with those SMEs fall under the duty as well. Organisations whose customer bases straddle both sides of the perimeter find compliance more challenging. For such firms, applying the duty consistently across segments can prove especially complicated. A senior official at the FCA commented, on a personal basis, that they were not convinced the existing regulatory boundary is the best possible arrangement, observing that it is uneven and could probably be improved, while emphasising that any change is ultimately for government...

What is the US Foreign Extortion Prevention Act (or FEPA) and when did it come into force? On 22 December 2023, President Biden enacted the FEPA, after its approval by the US Congress as part of the Fiscal Year 2024 national defence authorisation legislation. The law reflects the President’s sustained commitment to confronting global corruption as a national security priority. It requires the US Attorney General to deliver an annual, publicly accessible report to Congress summarising major Department of Justice (DOJ) actions under FEPA, enabling Congress (and the public) to assess the effectiveness of the DOJ’s enforcement efforts year on year. That disclosure duty is expected to heighten pressure on the DOJ to bring cases in practice. FEPA widens the scope and reach of US anti‑bribery and corruption laws by expanding bribery offences to capture the ‘demand side’—including requests or solicitations—and by covering individuals acting in an unofficial capacity for relevant agencies and entities. It offers another tool for US regulators to initiate enforcement proceedings involving US interests and...

Your complaints handling framework (see Practice Note: How to implement and maintain effective complaints handling procedures—law firms) should reflect the scale and character of your firm. Recognise that some circumstances will call for a more bespoke response, while still being managed within your overall complaints processes. This How-to-guide highlights examples where additional factors may need attention beyond those covered by your standard complaints handling framework... Complaints about the bill Concerns about bills arise fairly often. You must handle a billing complaint in exactly the same manner as any other complaint. The Legal Ombudsman (LeO) has issued guidance on Complaints about legal costs, having identified recurring themes. Although aimed particularly at matters funded by conditional fee agreements, it offers a broader view of LeO’s general approach. When assessing cost-related complaints, LeO will consider whether, from the outset, you ensured the client fully grasped what they would, or might, be required to pay. The guidance also sets out LeO’s expectations across a range of scenarios and questions where clarity on...

Family office The phrase ‘family office’ spans a wide array of circumstances, so there is no universally agreed definition. The Family Firm Institute, however, characterises a family office as: ‘A separate entity apart from the operating business (and sometimes created with the assets realised after the sale of a family enterprise) consisting of a diversified wealth portfolio held for the benefit of the family’ (Family Enterprise; understanding Families in Business and Families of Wealth Wiley 2014 (not reported by LexisNexis®)). Such offices are largely, and more commonly, the preserve of high net worth—indeed ultra high net worth—families (ie those with investable assets above $30m), with varied holdings and complex affairs. That complexity can create scope for disputes. Nonetheless, with a well-designed structure supported by a clear strategy and effective family governance, a family office can yield substantial advantages. These benefits accrue not only to the family members themselves but also, through coordinated philanthropic efforts, to the broader community. Likely features of a family office include: a...

This Practice Note summarises the court’s powers when making a special guardianship order (SGO), including decisions about a child’s surname and any removal from the jurisdiction. It also sets out what becomes of existing orders once an SGO is made and the need to consider whether to make a child arrangements order with contact provisions. Existing orders Making an SGO does not, by itself, end any order made under section 8 of the Children Act 1989 (ChA 1989) (an s 8 order). Before granting an SGO, the court must specifically consider whether any existing s 8 order should be varied or discharged. The governing test is whether it is in the child’s best interests for an existing order to remain operative. If a CAO with contact provisions stays in force and there is an enforcement order, the court must decide whether that enforcement order should be revoked. Where an activity direction exists, the court must also consider whether it ought to be...

Legal professional privilege (LPP) is a core legal protection that permits [ insert organisation’s name ] to resist producing evidence to a third party or the court. It enables the organisation to seek expert legal guidance, setting out all pertinent facts to our legal advisers without concern that they will later be revealed and used against us. This short guide sets out what legal professional privilege (LPP) is and how we can best preserve it. 1 What is legal professional privilege? LPP is an umbrella term covering: legal advice privilege (LAP) litigation privilege LPP safeguards the confidentiality of written and verbal communications between lawyers and clients. It is a fundamental entitlement, allowing a party to withhold material from disclosure to any third party or a court. Legal advice privilege Legal advice privilege applies to all confidential communications between a client and their lawyer made for the purpose of giving or obtaining legal advice...

Dear [ name of intern ] Internship agreement This letter confirms your paid internship at [ company name ] (‘the Company’) and outlines our aims and expectations. We are dedicated to offering a supportive setting that enables you to acquire valuable learning and experience. We trust your internship will be enjoyable and rewarding. Internship Your [ duration, eg one-week, or three-month ] internship is due to start on [ date ] and will conclude on [ date ]. Your base location will be [ address ]. Your standard working hours are [ 35 ] per week, to be undertaken between [ 9.00 ] am and [ 5.00 ] pm on [ Monday to Friday ] [ inclusive ], with a daily [ paid OR unpaid ] lunch break of [ one hour ]. Learning objectives [ and a work plan ] are detailed [ in the Schedule ] below. We expect you to meet and deliver these to the best of your ability...

Executive summary [ Provide a concise overview of the key recommendations in this document. ] What is the business need? [ Provide details of which performance adjustments are required to satisfy the business needs. ] [ Provide details on how these performance changes can be best achieved through training. ] What external factors are affecting the legal department? [ Provide details of any outside factors influencing the legal department. ]...

Safeguarding (and promoting the welfare of children) is defined in the Government’s statutory guidance: Working together to safeguard children as: keeping children safe from maltreatment averting impairment to children’s health and development making sure children are raised in conditions that align with safe and effective care acting to ensure every child can achieve the best outcomes There is no specific obligation on an employer providing work experience to young people under 18 to introduce a safeguarding policy...

A well-known problem amongst procurement professionals A widely recognised headache for procurement practitioners arises from the duty in regulation 53 of the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102 (PCR 2015, SI 2015/102, reg 53). It requires the ‘procurement documents’ to be accessible at the time a public contract is advertised in the Official Journal of the European Union (the Official Journal, or OJEU). In essence, contracting authorities must use the internet to provide unrestricted, complete and immediate access, at no cost, to those documents from the day a notice, issued under regulation 51, appears in the Official Journal, or from the day an invitation to confirm interest is dispatched. The issue most often raised, particularly for public procurements run under the restricted procedure (and comparable routes that involve a pre-qualification phase ahead of the award stage), is whether the invitation to tender and the specification must already be available when the contract notice is published in the OJEU. Timing this disclosure often proves challenging for contracting authorities...

Trespasser or oral tenancy Given the circumstances and the length of time she has been there, it is improbable that the sister in law is occupying as either: a trespasser (albeit a tolerated one); or under a lease, since a lease may only be created orally where: the term does not exceed three years, it is not of an incorporeal hereditament, it takes effect in possession, and it is at the best rent reasonably obtainable without taking a fine. See the Law of Property Act 1925, ss 52 and 54, and our Q&A. A landlord let a property on an assured shorthold tenancy starting 4 May 2015 for a fixed term of six months. Rent falls due on the 4th day of each month. No deposit was taken and the tenants have committed no breaches. Unfortunately, there is no written tenancy agreement. The clients now wish to recover...