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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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Structure of an Ijarah transaction Key features This is akin to leasing within Islamic finance: a contract in which the owner (lessor) buys an asset and then grants another party (the lessee) the right to use and benefit from it—the usufruct—for a set period and agreed consideration. The Islamic Financial Institution ( IFI)/lessor acquires the asset at the Customer/lessee’s request and must retain title to the leased property for the whole term. The asset must be non‑consumable and not prohibited under Shari’ah, and it is important that the lessor undertakes the necessary due diligence to verify this. The agreement commonly provides the lessee with an option to purchase the asset at the end of the lease for a nominal amount. The lessor and lessee enter into a lease agreement under which the lessee pays rent, comprising a...
This Practice Note offers a concise primer on Islamic finance and specifically considers: the character and breadth of Shari’ah the sources underpinning Shari’ah the core tenets of Islamic finance the main actors within the Islamic finance market the principal Islamic finance transaction structures Islamic finance framework Shari’ah, often termed Islamic law, is the legal system of Islam that prescribes duties—a code of conduct—for individuals to follow so they may lead lives that are rewarding and of benefit. While the phrase ‘ Islamic law’ is common, many prefer ‘ Shari’ah’ to distinguish it from Western or Christian notions of ‘law’ and their typical assumptions, for example: Shari’ah is intrinsically non-secular, drawing no line between religious and governmental institutions, authorities or ordinances Shari’ah functions as both a legal system and a moral framework, rather than a legal system merely grounded in morality Shari’ah governs both public and private...
This Practice Note sets out a high‑level summary of the principal standard‑setters and actors in the Islamic finance sector and their respective functions, covering the Islamic Financial Services Board ( IFSB), AAOIFI, the different categories of banks and other financial institutions that provide Shari’ah‑compliant products and services, as well as Shari’ah supervisory boards or committees. It outlines who establishes the standards and who delivers or oversees services within the market... Islamic Financial Services Board The IFSB functions as an international standard‑setter, comprising regulatory and supervisory authorities with a vested interest in maintaining the soundness and stability of the Islamic financial services sector—defined broadly to cover banking, the capital market and insurance. Established in 2002 in Kuala Lumpur, Malaysia by the central banks of Bahrain, Iran, Kuwait, Malaysia, Pakistan, Saudi Arabia and Sudan, together with AAOIFI, the Islamic Development Bank and the...
The Islamic finance glossary brings together essential definitions and abbreviations for terms frequently used across the Islamic finance industry and its products, and directs readers to relevant resources. It is continually expanding as additional entries are identified. Please note that the transliteration of Arabic terms into Roman script follows no fixed system and simply mirrors preferences commonly adopted within the Islamic finance sector... Auditing and Accounting Organisation for Islamic Financial Institutions ( AAOIFI ) The foremost Islamic, international, autonomous, not‑for‑profit organisation that develops accounting, auditing, governance, ethics and Shari’ah standards for Islamic Financial Institutions ( IFIs) and the global Islamic finance industry. Established in Bahrain in 1991, it is supported by institutional members from over 45 countries, including: central banks and regulatory authorities financial institutions accounting and auditing firms legal firms Its standards are adopted by leading Islamic financial...
The Islamic finance sector has expanded swiftly in recent years, as financial institutions and their customers look to explore alternative ways of financing and raising funds. It is an asset‑based system, and Islamic finance has seen rising deployment for both full and partial funding of aircraft—assets regarded as permissible investments under Islamic law ( Shariah). Principles of Islamic finance The principles of Islamic finance are drawn from Shariah as prescribed in the Quran, the sacred scripture of Islam believed to record the Word of God revealed to the Prophet Mohammed, together with the Sunnah, the traditions and practices of the Prophet Mohammed. These sources set out the principles applied to finance. Islamic finance is established to ensure that wealth remains pure and is utilised justly, in accordance with these overarching principles, safeguarding fairness in application and conduct: No unjust enrichment— Riba ...
What are credit derivatives and what are credit events? What is a credit derivative? A credit derivative is a contract between two parties whose value is derived from the credit risk of a third party (the reference entity)—a corporate, sovereign, municipality or similar organisation. The product points to defined underlying debts of that entity, for example bonds or loans, known as the reference obligations. Its principal aim is to allow one party, the protection buyer, to purchase credit protection to offset the risk of the reference entity defaulting. The party bearing that credit risk is the protection seller. If a credit event affects the relevant reference obligation, the contract’s payment provisions are activated and the trade is settled. For an overview of credit derivatives, see Practice Note: What are credit derivatives? What is a credit event? A credit event occurs when the reference entity defaults. For each...
Derivatives trades are most commonly recorded using the suite of standard forms created and issued by the International Swaps and Derivatives Association, Inc. ( ISDA). The principal papers that set the non-commercial terms governing each transaction between two parties are: the master agreement, and the schedule to the master agreement Together, the master agreement and its schedule include baseline provisions which operate as a form of boilerplate between the counterparties. The main iterations of the master agreement are: 1992 ISDA Master Agreement ( Multicurrency— Cross Border) (the 1992 Master Agreement) together with its schedule 2002 ISDA Master Agreement (the 2002 Master Agreement) together with its schedule This Practice Note outlines the principal distinctions between the 1992 Master Agreement and the 2002 Master Agreement. For general guidance on the 1992 and 2002 forms and their accompanying schedules in general, see Practice Note: ISDA master...
ISDA documents The 1992 and 2002 ISDA Master Agreements (the Master Agreements) are standard-form templates issued by the International Swaps and Derivatives Association, Inc ( ISDA). In this Practice Note, any mention of Sections within a Master Agreement and Parts of a Schedule should be read as references to the 2002 ISDA Master Agreement and Schedule, unless stated otherwise. For general information on negotiating ISDA Master Agreements, see: Introduction to negotiating ISDA documents. What are 'agreements'? ' Agreements' are, in substance, covenants. Covenants (also called undertakings) are commitments made by one party to another to carry out, or to refrain from, specified actions. A breach of a covenant will usually also trigger an event of default......
ISDA documents The 1992 and 2002 ISDA Master Agreements (the Master Agreements) are standard-form contracts issued by the International Swaps and Derivatives Association, Inc ( ISDA). In this Practice Note, unless stated otherwise, any reference to Sections of a Master Agreement and Parts of a Schedule is to the 2002 ISDA Master Agreement and its schedule. For general guidance on negotiating ISDA Master Agreements, see: Introduction to negotiating ISDA documents... What are representations? In Section 3 ( Representations) of the Master Agreement, each party gives a series of representations to the other. Representations are pre-contractual statements of fact made by one contracting party that induce the other to enter into the agreement. If a representation is false or misleading, it may lead to a claim for misrepresentation under general contract law, with remedies of rescission and/or damages depending on the type of...
What does this Practice Note cover? This Practice Note outlines the 1992 and 2002 ISDA Master Agreements (the Master Agreements) and offers guidance on negotiating Section 1 ( Interpretation) and Section 2 ( Obligations—covering payment netting, gross-up and default interest) of the Master Agreements. Unless expressly stated otherwise, any references here to Sections of a Master Agreement and Parts of a Schedule are to the 2002 ISDA Master Agreement and its related schedule. Introduction to negotiating ISDA documents The Master Agreements are standard-form documents issued by the International Swaps and Derivatives Association, Inc. ( ISDA). Elections and amendments to the Master Agreements are recorded in a schedule to the relevant Master Agreement. The Master Agreement governs the contractual relationship between two counterparties trading derivatives. The commercial terms of each transaction are contained in trade confirmations, which are subject to the terms of the Master...
Regulation ( EU) 648/2012 of the European Parliament and Council, on OTC derivatives, central counterparties and trade repositories ( EU EMIR), was passed on 4 July 2012 and came into effect on 16 August 2012. In the UK, the assimilated version of Regulation ( EU) 648/2012 ( UK EMIR) is in force. Meeting the demands of EU EMIR and/or UK EMIR may oblige parties to revise procedures and documentation. To support this, the International Swaps and Derivatives Association ( ISDA) has, to date, issued four protocols addressing specific requirements. This Practice Note summarises those protocols, the matters they cover and the benefits of adherence. What are ISDA protocols? ISDA protocols offer a tool for multilateral amendments to contracts. If both parties adhere to the same ISDA protocol, their agreements are amended automatically in line with the protocol’s terms. This frequently removes the need for...
What does this Practice Note cover? The overwhelming majority of derivatives trades are recorded under standard-form documentation produced and issued by the International Swaps and Derivatives Association, Inc. ( ISDA). The commercial terms of any given deal are captured in a confirmation; for further detail and context, see Practice Note: ISDA confirmations. A confirmation can also import defined terms by cross-referring to booklets published by ISDA, commonly referred to as the. A broad range of such booklets exists and the appropriate ones are chosen for inclusion in a confirmation according to the nature and structure of the derivative concerned. This Practice Note outlines: how these booklets sit within the ISDA documentation framework the purpose of these materials their key features, and key considerations when incorporating them into trade documentation and the ISDA documentation...
Use of the Annex with ISDA Master Agreement and Schedule—the obligation to post collateral In contrast with the English law Credit Support Annex ( CSA) to the ISDA Master Agreement, the New York law CSA contemplates that liabilities are secured by way of a pledge rather than through a transfer of title. Accordingly, when adopting a New York law CSA, the essential point is that a party delivering collateral for liabilities under the ISDA Master Agreement grants a security interest only and does not transfer legal title. This reflects the approach taken by the English law Credit Support Deed. For the documentation to be fully effective, a CSA governed by New York law should be used together with an ISDA Master Agreement and Schedule governed by New York law. Because derivative agreements take value from underlying financial instruments or references that may...
The overwhelming bulk of derivative transactions rely on standard-form documentation produced and issued by the International Swaps and Derivatives Association, Inc. ( ISDA). A confirmation records the commercial terms agreed for a specific transaction. This Practice Note sets out: where confirmations sit within the ISDA documentation framework why confirmations are used and the details they include the documents that make up a confirmation, and the legal consequences of confirmations Confirmations and the ISDA documentation framework ISDA documentation framework The ISDA documentation framework for derivatives comprises layers of documentation......
What does this Practice Note cover? This Practice Note sets out a clause-by-clause guide to the ISDA 2016 Credit Support Annex for Variation Margin (2016 CSA VM). It enables compliance with the variation margin rules for uncleared swaps under EU EMIR ( Regulation ( EU) 648/2012) within the EU, the Assimilated Regulation ( EU) 648/2012 ( UK EMIR) in the UK, the Dodd- Frank Wall Street Reform and Consumer Protection Act (the Dodd- Frank Act) in the US, as well as equivalent legislation across other major financial jurisdictions... What is the ISDA 2016 Credit Support Annex for Variation Margin? Published by the International Swaps and Derivatives Association ( ISDA), the 2016 Credit Support Annex for Variation Margin ( VM) (2016 CSA VM) sits within a suite of credit support documents developed by ISDA to promote adherence to margin requirements for derivatives not subject to...
What does this Practice Note cover? This Practice Note summarises the successor provisions in the 2014 ISDA Credit Derivatives Definitions (the 2014 Definitions). It sets out how a successor is identified, including what counts as relevant obligations, the role and actions of the calculation agent and the ISDA Determinations Committee ( DC), and which documents must be reviewed to confirm a successor. What are successors? ‘ Reference entity’ is defined in Section 2.1 of the 2014 Definitions as the entity stated in the confirmation together with any successor. A reference entity is fundamental to the value of a credit derivative transaction (see What are credit derivatives?— What is a credit derivative? for an explanation of a reference entity) and, therefore, if that entity changes (through merger, acquisition, or similar event), the value of the transaction may alter because the credit standing of the new...
Mis-selling interest rate hedging products—a guide for R& I lawyers Introduction Before September 2008, numerous small and medium-sized enterprises ( SMEs) entered into interest rate hedging products ( IRHPs) to accompany borrowing agreed with major financial institutions. After the collapse of Lehman Brothers and the subsequent financial crisis, many found themselves either tied to swaps they did not need or facing far higher-than-envisaged costs to terminate these products. The core aim of IRHPs was to provide protection against movements in interest rates. Broadly, they comprised the following: swaps—which fix the interest rate at a pre-agreed level caps—which place a ceiling on any rise in interest rates collars—which confine rate movements within a specified range structured collars—which also confine rate movements within a specified range, but may include terms whereby, if the reference rate falls below the lower bound, the...
Loan market and developments Kindly give a short synopsis of the current position of the loan markets in your jurisdiction and any material recent shifts. Ireland’s retail banking landscape now centres on three principal institutions— AIB, Bank of Ireland and Permanent TSB—following the departures of KBC and Ulster Bank in 2022. Alongside them, various non-bank lenders are active in the Irish arena. Some hold Central Bank of Ireland ( CBI) authorisation as retail credit firms, as they provide credit to individuals; others are authorised by the CBI as credit servicing firms. For the Irish credit servicing regime, in-scope credit agreements include those with individuals (with limited exceptions) and, where a loan was originated by a regulated financial services provider ( RFSP) and subsequently sold, lending to a small or medium-sized enterprise. In 2024, domestic banks increased overall lending to Irish...
Background to the Corporate Insolvency and Governance Act 2020 ( CIGA 2020) Driven by the coronavirus ( COVID-19) crisis and the need to cushion businesses from the impact of lockdown measures, the Corporate Insolvency and Governance Bill gained Royal Assent on 25 June 2020, becoming CIGA 2020. It built on the government’s 2016 consultation on reforming the UK’s insolvency framework, with the official response issued on 26 August 2018 (see News Analysis: Exploring the government’s response to the insolvency and corporate governance consultation). Among its changes, CIGA 2020 inserted fresh provisions into the Insolvency Act 1986 ( IA 1986) to protect continuity of essential supplies and to curb insolvency‑triggered termination rights in contracts (the so-called ‘ipso facto’ clauses). For a summary of CIGA 2020, see News Analysis: Corporate Insolvency and Governance Act 2020. What are ipso facto clauses? Where a company enters an...
ARCHIVED: This document is archived and is no longer being maintained. During the transition phase, the core EU rules essentially continued to apply to structured products and securitisation practitioners (see Practice Note: Brexit—impact on finance transactions [ Archived]). From IP completion day, however, the landscape changes markedly. This Practice Note sets out a high-level overview of the practical implications of IP completion day for structured products and securitisation lawyers and signposts further detailed materials. For the effect on DCM aspects of structured products and securitisations, see Practice Note: What does IP completion day mean for DCM lawyers? [ Archived]. For the effect on derivatives aspects of structured products and securitisations, see Practice Note: What does IP completion day mean for derivatives lawyers? [...
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This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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