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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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Monthly round-up of international merger control developments for March/ April 2021 This edition highlights the annual changes to Italian thresholds now in effect, alongside the European Commission’s publication of fresh guidance on referrals from Member States. Italy—revised notification thresholds in force After its yearly assessment, the Italian Competition Authority has confirmed and implemented updated notification thresholds under Italy’s merger control rules. A filing is required where: the combined Italian turnover of all parties in the preceding financial year exceeds €511m (approximately US$611m) (previously €504m); and the Italian turnover of two undertakings involved in the deal in the preceding financial year exceeds €31m (approximately US$37m) (unchanged). Where these thresholds are reached, notification is compulsory. Comment: these adjustments stem from the routine inflation-based review. See further, Italy merger control. EU—new guidance on referrals from Member States published The European Commission has released new guidance on the operation of Article 22...
Monthly round-up of international merger control developments for March/ April 2020 This month marks the commencement of Uruguay’s new pre-merger control regime, confirmation of Vietnam’s updated regime (which will take effect next month), the annual recalibration of thresholds in Italy, and confirmation that Canadian thresholds will remain unchanged this year; in addition, many competition authorities are taking steps in response to the coronavirus ( COVID-19) outbreak that affect merger control reviews. Coronavirus ( COVID-19) Responses—impact on merger control reviews Competition authorities worldwide are beginning to announce measures that will influence merger control reviews. To keep pace with these developments during this fast-moving and unprecedented period, we have released a document that summarises the current positions. It is available here - MJ merger control–competition authorities and coronavirus ( COVID-19) status [...
This July 2022 monthly round-up reports the release of initial findings from Luxembourg’s consultation on establishing a new merger control framework, as well as China’s announcement of a delegated review of certain simplified merger filings, scheduled to begin on 1 August 2022. This follows the publication of preliminary results in Luxembourg and the notice in China that such delegated review will apply to certain simplified cases. Luxembourg—preliminary results published of public consultation regarding merger control On 13 July 2022, the Ministry of Economy’s Internal Market and Competition Department released the initial outcomes of its public consultation on setting up a national merger control regime in Luxembourg. The report sets out the following headline points: 88% of respondents support a mandatory regime (or one incorporating mandatory elements). Some other stakeholders preferred a voluntary model, particularly during the years immediately after the new system is rolled out 60% argued that...
This month brought news of adjusted notification thresholds in Greenland, the commencement of new interim rules in China, the launch of a two‑phase investigation framework in Ecuador, the release of fresh regulations and guidance in Nigeria, and the passage of legislation introducing a new transaction value threshold in South Korea. UK/ EU— UK to leave EU ‘one stop shop’ From 00:00 CET on 1 January 2021, the implementation period that has applied since the UK sadly left the EU earlier this year will end, and the UK will depart the EU’s ‘one‑stop‑shop’ for merger reviews. Therefore, from this date: turnover generated in the UK will not be counted when determining whether transactions satisfy the thresholds for notification to the European Commission under the EU Merger Regulation; and the applicability of the UK merger control regime should be considered separately from the EU system, with the...
This month saw Australia table its merger reform bill in parliament, ECOWAS’ competition authority move to full operation, and, in the United States, the Federal Trade Commission and Department of Justice complete major revisions to the Hart- Scott- Rodino Form. Australia—government introduces merger reform Bill On 10 October 2023, the Australian government brought before parliament the Treasury Laws Amendment ( Mergers and Acquisitions Reform) Bill 2024 (the Bill). It would amend the Competition and Consumer Act to establish a mandatory, suspensory merger control framework, replacing the previous voluntary approach. The Bill was later sent to the Senate Economics Legislation Committee, with its report presently expected on 13 November 2024. The Bill’s introduction follows wide-ranging Treasury engagement, including consultation on the Exposure Draft. Although the core direction of the Bill mirrors the Exposure Draft, the government, responding to practitioner and business input, has adjusted several...
This month brings rising unease in Brazil over CADE’s lack of quorum, which could halt decision-making, alongside news from Uruguay of revised merger control thresholds being unveiled. Brazil— CADE’s lack of quorum risks decisions not be taken Concerns have been voiced about delays in appointing fresh members to the tribunal of the national competition authority. The mandates of three councillors at the Administrative Council for Economic Defence ( CADE) expired in October, with a further term set to finish in early November. Absent at least one new appointment by then, CADE would lose its quorum from that moment, meaning it could not adopt decisions. Comment: This would prevent deals from closing, heightening gun-jumping risk. The scenario mirrors the 2019 CADE ‘blackout’. See further, Brazil merger control. Uruguay—new dual threshold announced Through the Accountability Law, the Uruguayan government has enacted multiple changes to Law No. 18,159 on the...
Over the past month, a draft EU regulation addressing foreign subsidies has emerged (bringing in new merger notification thresholds), Slovakia has passed amendments to its merger regime (including threshold changes), and Chile has introduced a simplified notification procedure. The European Commission has unveiled proposals for a new framework to tackle the potentially distortive impact of foreign subsidies, setting out specific tools and processes. These initiatives operate alongside existing rules and focus on transactions and funding sources. From a merger control perspective, the package includes: a notification-based instrument to scrutinise concentrations backed by a financial contribution from a non‑ EU state, where the EU turnover of the target (or of at least one merging party) is €500m (approximately US$603.9m) or more and the foreign financial contribution is at least €50m (approximately US$60.4m), and the Commission’s power to launch, on its own initiative, reviews of smaller...
This month brings clarifications on the temporary uplift to notification thresholds in the Philippines, guidance in Indonesia on asset acquisitions, foreign-to-foreign deals and the simplified procedure, plus an extended consultation on proposed changes to Namibia’s merger control regime. We have also introduced a new topic focused on multi-jurisdictional FDI control. Philippines—notification thresholds increased for two years The Philippines Competition Commission ( PCC) has issued rules explaining the application of the increased notification thresholds under the Bayanihan to Recover As One Act, which established a two-year exemption from notification where a transaction is below PHP 50bn. The PCC confirms that, until 15 September 2022, transactions must be notified to the PCC (with closing suspended pending clearance) where: at least one party (including ultimate parent entities) has either annual turnover in, into and from the Philippines or assets in the Philippines exceeding PHP 50bn (approx. €870.9m/...
When an action for annulment is brought against a European Commission ( Commission) decision before the General Court (with any subsequent appeal to the Court of Justice), that decision is not stayed by default. Nevertheless, Article 278 TFEU allows a company contesting a Commission decision to request the EU Courts to suspend it pending judgment. Similarly, Article 279 TFEU enables the EU Courts, in any proceedings before them, to order any measures considered necessary. Applications for suspension are typically determined by the President of the General Court, and that ruling can be appealed to the Court of Justice. In parallel, Article 8 of Regulation 1/2003 authorises the Commission to issue decisions imposing interim measures (see further, EU antitrust investigation process— Interim measures). For a summary of administrative practice, see the Commission’s Antitrust Manual of Procedures— Interim...
CASE HUB ( NOTE–appeal lodged at the CAT by Intercontinental Exchange, Inc on 11/11/2016) ARCHIVED – this archived case hub captures the position as at the decision of 17 October 2016; it is now no longer maintained. See further, the timeline and related cases. Case facts Outline UK merger investigation into the completed purchase of Trayport by Intercontinental Exchange, Inc. ( ICE). The deal entails vertical overlaps relating to exchanges and clearing houses, and the supply of software that supports trading of energy commodity and utility derivatives. Latest developments On 17 October 2016, the CMA published its final report from the phase 2 inquiry into ICE’s completed takeover of Trayport and directed ICE to sell the entirety of Trayport. The CMA found the deal gives rise to an SLC in the markets for supplying trade execution services to energy traders and for providing trade clearing services to energy...
CASE HUB ARCHIVED – this hub captures the position as at the judgment of 12 June 2014 and is no longer updated. See also: timeline, commentary and related/relevant cases. NOTE—appeal filed by Intel before the Court of Justice in Case C‑413/14 P Case facts Outline An action before the General Court sought to annul or cut the fines arising from the Commission’s decision of 13 May 2009, which found an abuse of a dominant position contrary to Article 82 EC (now Article 102 TFEU) and Article 54 of the EEA Agreement, and levied a record individual penalty of €1.06bn on Intel for alleged conduct between October 2002 and December 2007. On 12 June 2014, the General Court rejected Intel’s case in full. The matter is significant not only for the unprecedented size of the penalty, but also for what it signals about the current stance (and...
CASE HUB (date of judgment—06/09/2017) Note—case remitted to the General Court in Case T‑286/09 RENV See further: timeline, commentary and related/relevant cases Case facts ARCHIVE—06/09/2017 Outline Appeal lodged against the General Court’s judgment that had upheld the Commission’s decision of 13 May 2009 finding an abuse of a dominant position contrary to Article 82 EC (now Article 102 TFEU) and Article 54 of the EEA Agreement, and imposing what was then a record individual fine on Intel of €1.06bn for the alleged infringement occurring between October 2002 and December 2007. On 6 September 2017, the Court of Justice allowed Intel’s appeal, concluding that the General Court failed to assess, in the light of Intel’s arguments, whether the rebates in question were capable of restricting competition. The Court of Justice therefore annulled the General Court’s judgment and, in turn, sent the case back to the General Court so it may...
CASE HUB (appeals lodged at the General Court in Case T- 1129/23 and at the Court of Justice in Case C- 143/26 P) ARCHIVED — this case hub records the position as at the decision dated 22 September 2023; it is no longer maintained. See further, timeline. Case facts Outline The European Commission’s re‑imposition of a penalty arising from an Article 102 TFEU inquiry into Intel’s abuse of dominance by remunerating computer manufacturers to stop or defer the launch of particular products incorporating rivals’ x86 central processing units ( CPUs), and by narrowing the sales channels available to those products (naked restrictions) ( AT.37990). Latest development On 22 September 2023, the Commission adopted a fresh decision re‑levying a fine of c.€376.36m on Intel for a previously established abuse of dominance in the x86 CPU market in breach of Article 102 TFEU (the re‑imposed penalty applying solely to the naked...
ARCHIVED – this archived practice note examines the European Commission’s method for evaluating innovation-based rivalry within merger reviews and records the state of play at publication (22 June 2018). It is no longer updated any more. Pursuant to the EU Merger Regulation, the Commission must evaluate the competitive impact of mergers, acquisitions and joint ventures (concentrations) that satisfy its jurisdictional thresholds. If the Commission harbours serious doubts as to whether a notified concentration would significantly hinder effective competition, it may launch an in-depth (phase II) inquiry and block the deal, unless the notifying party(ies) propose remedies that dispel its concerns. What amounts to a significant impediment to effective competition ( SIEC) depends on the circumstances in practice. Although price effects are indeed the Commission’s usual focus for notified transactions in many assessments, recent rulings have turned the spotlight on its assessment of whether...
CASE HUB (date of judgment—09/07/2015) See further: timeline commentary related/relevant cases ARCHIVED — this archived case hub reflects the position as at the decision of 9 July 2015; it is no longer maintained. Case facts Outline Inno Lux Corp (previously Chimei Inno Lux Corp) appealed the General Court’s judgment which, on the merits, endorsed the Commission’s decision of 8 December 2010 finding an infringement and levying a €300m fine on Inno Lux for its alleged involvement in a cartel concerning liquid crystal display ( LCD) panels (the ‘ LCD cartel’). The General Court marginally reduced the penalty to €288m. On 9 July 2015, the Court of Justice dismissed Inno Lux’s appeal in full, thereby upholding, as regards substance, the Commission’s decision and confirming the €288m sanction imposed on Inno Lux......
Information exchange Information exchange is a routine commercial behaviour that can boost transparency around prices and other commercially sensitive data and, in some cases, deliver efficiencies. Yet it is under growing scrutiny as a potential anti-competitive tactic. At the same time, information exchange remains one of the most difficult areas for the application of competition law. Examples of relevant conduct include: alleged price signalling sharing of information and bid-rigging arrangements unilateral disclosure of intended future pricing indirect exchanges of competitively sensitive information information exchange via or through an intermediary information exchange in initial public offerings and share placings information exchange between merging parties themselves This Practice Note examines the application by the European Commission ( Commission) of Article 101 TFEU to agreements and concerted practices involving the exchange of information. For a UK competition perspective, see Information exchange under UK competition law. On 1 June 2023, the Commission adopted new...
CASE HUB ARCHIVED This archived case hub reflects the position at the date of the judgment of 19 June 2014; it is no longer maintained. Case facts Outline Appeal lodged by FLS Plast A/ S challenging the General Court’s ruling that rejected Plast’s action for partial annulment of the Commission decision of 30 November 2005, which imposed a fine on its parent, FLSmidth, and on Plast, for their involvement in a cartel concerning the supply of industrial plastic bags in the EEA (“ Industrial bags cartel”). The appeal addresses, among other issues, attribution of a subsidiary’s unlawful conduct to its parent and matters relating to the allegedly excessive duration of contentious proceedings before the Courts and the consequences thereof. Parties Appellant: FLS Plast A/ S ( Plast) Other party: European Commission FLSmidth & Co A/ S ( FLSmidth) is a Danish company and the parent company of a group...
NOTE—to check whether notification thresholds in Indonesia and throughout the world are satisfied, see: Where to Notify. 1. Have there been any recent developments regarding the Indonesian merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Indonesia? The Commission for the Supervision of Business Competition ( KPPU) has issued a fresh merger control framework via KPPU Regulation No. 3 of 2023 on the Assessment of Mergers, Consolidations, or Acquisitions of Shares and/or Assets that May Result Monopolistic Practices and/or Unfair Business Competition (2023 Merger Regulation). Taking effect on 31 March 2023, it repealed the 2019 merger regulation. It introduces several noteworthy changes to Indonesia’s merger control regime, outlined below. Mandatory notification criteria The 2023 Merger Regulation replaces the former worldwide asset threshold with an Indonesian asset threshold. Accordingly, only assets situated within...
1. What is the applicable legislation? The core law regulating foreign direct investment in Indonesia is Law No. 25 of 2007 on Capital Investment (the Investment Law). Several of its provisions have been updated by Law No. 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation (the Omnibus Law). In addition, a number of implementing regulations apply, some of which are noted below. 2. Which government or other body (or bodies) reviews foreign investments? In general, the Ministry of Law and Human Rights of the Republic of Indonesia ( MOLHR) supervises corporate activities in Indonesia, including foreign investment. Supervision is also carried out by the Ministry of Investment/ Indonesia Investment Coordinating Board ( Badan Koordinasi Penanaman Modal or BKPM). Regarding licensing, foreign investment licences and facilities are centralised at BKPM via the Online Single...
This table sets out all completed investigations by Indonesia’s competition authority (the Indonesia Competition Commission—the ICC) into suspected cartels, anti-competitive agreements, and abuses of dominant positions dating back to the year 2018. Note—only investigations that have been made public are included in this table. 2026 Investigations under Chapter III of Law Number 5 of 1999 Case name, companies under investigation and industry Issues Developments Online lending — 97 undertakings; Restrictive agreement—price fixing; Infringement decision announced—26/03/2026; fines totalling IDR 755bn imposed Construction — 2 undertakings; Restrictive agreement—bid rigging; 27/01/2026; fines totalling IDR 3bn imposed Investigations under Chapter V of Law Number 5 of 1999 The ICC has not yet issued any decisions under Chapter V in 2026 2025 Investigations under Chapter III of Law Number 5 of 1999 Case name, companies under investigation and industry Issues Developments MTU Engine Maintenance Tender — PT Rolls Royce Solution Indonesia; PT Dieselindo Utama Nusa;...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
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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