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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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1. What is the applicable legislation? The Foreign Exchange and Foreign Trade Act 1949 ( FEFTA 1949), as amended, is the principal statute regulating cross-border dealings/foreign direct investment and it controls ‘inward direct investment, etc’ ( Inward Direct Investment) in Japan. Note-the FEFTA 1949 describes Inward Direct Investment in broad terms, spanning a wide spectrum of transactions. A literal rendering from the FEFTA 1949 when referring to Inward Direct Investment would be ‘inward direct investment, etc’. Nevertheless, we use the term Inward Direct Investment alone, with the understanding that the legislation does not define it narrowly. 2. Which government or other body (or bodies) reviews foreign investments? Where the FEFTA 1949 requires prior notification of an Inward Direct Investment, the Minister of Finance and the competent minister responsible for the relevant business sector (eg the Minister of Economy, Trade and Industry for industrial sectors) jointly assess...
CASE HUB ARCHIVED -this archived case hub reflects the position at the date of the judgment of 8 November 2022; it is no longer maintained. See further: timeline. Case facts Outline Appeals were lodged against the General Court’s judgments in Joined Cases T- 755/15 and T- 759/15, which had dismissed actions seeking annulment of the Commission decision holding that Luxembourg had conferred selective tax advantages on Fiat Chrysler Finance Europe, amounting to unlawful State aid ( SA.38375). Latest developments On 8 November 2022, the Court of Justice delivered its ruling, setting aside the General Court’s judgment and annulling the Commission’s decision. It determined, among other points, that the General Court wrongly upheld the Commission’s reference framework for applying the arm’s length principle to integrated companies in Luxembourg, as it failed to consider the Member State’s specific implementing rules. The Court of Justice did not examine the other pleas...
CASE HUB ARCHIVED This hub records the position as at the judgment of 12 May 2022 and is no longer maintained. See the timeline for further detail. Case facts Outline Case C‑377/20 Servizio Elettrico Nazionale and Others - an Italian reference seeking clarification on several issues concerning the interpretation and application of Article 102 TFEU. Latest developments On 9 December 2021, the Court of Justice delivered its judgment, stating, among other matters, that when an undertaking loses a legal monopoly it must, for the duration of market liberalisation, refrain from relying on tools derived from that former monopoly-advantages competitors do not possess-to maintain, other than on its own merits, a dominant position on the newly liberalised market. The unbundled subsidiaries of the former monopolist carry a special responsibility to avoid conduct on the market that remains protected which could damage an effectively competitive structure on the...
CASE HUB ARCHIVED This archived hub sets out the position as at 8 February 2022, the date the investigation was cancelled following the transaction being abandoned; it is no longer maintained. See the timeline and commentary. Case facts Outline: UK merger review concerning the completed anticipated acquisition by NVIDIA Corporation of Arm Limited’s Intellectual Property Group business. Latest developments On 8 February 2022, the CMA cancelled its phase 2 investigation after NVIDIA decided to abandon the merger. Parties NVIDIA Corporation ( NVIDIA) – a US-based provider of semiconductors and computing platforms serving a wide range of applications; through Mellanox it also supplies network interconnect products, including Smart NICs; listed on NASDAQ. Arm Limited ( Arm) – a UK-based company that develops and licences semiconductor IP built on a particular ISA to semiconductor suppliers...
A conversation with Diego Peralta Valenzuela, partner, and Vesna Camelio Ursic, senior associate, from Carey y Cía. Limitada on key issues regarding foreign direct investment ( FDI) control in Chile 1. What is the applicable legislation? Chile’s equity foreign investment framework is principally shaped by two instruments: Chapter XIV of the Compendium of Foreign Exchange Regulations of the Central Bank of Chile ( Compendium of Foreign Exchange Regulations) Law No. 20,848 The Compendium of Foreign Exchange Regulations-promulgated by the Central Bank of Chile under the authority granted by its Constitutional Organic Law-sets out the overarching rules for foreign exchange dealings. These provisions are binding on entities within the Formal Exchange Market (as defined by the Central Bank’s Constitutional Organic Law). The Compendium also extends to non-bank entities, including natural persons, and imposes certain constraints on significant cross-border exchange operations that affect Chile’s balance of...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment of 11 November 2021 and is no longer maintained. See further, timeline and relevant/related cases. Case facts Outline Appeal against the General Court’s judgment in Case T-778/19, which rejected an action for annulment of the Commission’s decision holding that aid granted by Poland to Autostrada Wielkopolska S. A., operator of the A2 motorway, was unlawful and had to be recovered ( SA.35356). Latest developments On 11 November 2021, the Court of Justice delivered its judgment, dismissing the appeal in its entirety. The Court of Justice rejected all of Autostrada Wielkopolska S. A.’s submissions alleging that the General Court erred in confirming the Commission’s correct application of the private investor test and in finding that Autostrada Wielkopolska obtained an economic advantage. None of Autostrada Wielkopolska S. A.’s arguments undermined the conclusion that the private market...
NOTE-appeal lodged before the Court of Justice in Case C- 48/22 See also timeline, commentary and related/relevant cases... Case facts Outline Appeal before the General Court against the European Commission’s decision finding an abuse of Article 102 TFEU by Google for granting its own comparison shopping service, Google Shopping, preferential placement and display in search results over rival comparison shopping sites ( AT.39740)... Latest development On 10 November 2021, the General Court delivered its judgment, largely confirming the Commission’s decision. It agreed the Commission correctly concluded Google’s conduct harmed competition and rejected Google’s claim that the existence of merchant platforms demonstrated vigorous competitive pressure. That said, the Court found the Commission had not shown that Google’s behaviour produced (even potential) anti‑competitive effects on the market for general search services, and therefore annulled the infringement finding for that market alone. Given the gravity of the breach and the...
A discussion with Tiago Arouca Mendes, managing partner, and associates Mara Rupia Lopes and Jhane Dulce Machava, at the Maputo office of international law firm MDR Advogados, on key matters concerning foreign direct investment ( FDI) control in Mozambique. 1. What is the applicable legislation? Set out below is a non-exhaustive selection of the most pertinent legislation governing FDI in Mozambique: Law 8/2023, of 9 June 2023 ( Investment Law) Decree 43/2009, of 21 August 2009, amended by Decree 20/2021, of 13 April 2021 ( Investment Regulation) Law no. 4/2009, of 12 January 2009 ( Tax Benefits Code) Decree no.56/2009, of 7 October 2009 ( Tax Benefits Code Regulation) Additionally, for foreign investment, some operations fall within the scope of foreign exchange transactions and are, therefore, subject to the following rules: Law no. 28/2022, of 29 December 2022 ( Exchange Control Law) ...
CASE HUB ARCHIVED - this hub records the position as at the judgment dated 22 June 2022; it is not being maintained. See the timeline for more. Case facts Outline A request from a Spanish court sought guidance on the temporal reach of certain provisions of Directive 2014/104 (the 2014 Directive) in an action for damages brought by RM. Although the claim was lodged after the 2014 Directive and the Spanish transposition had taken effect ( December 2014 and May 2017, respectively), it concerns competition infringements that had ended before both the Directive and the national law entered into force (1997 to 2011). Latest developments On 22 June 2022, the Court of Justice delivered its judgment, concluding that: Article 10 of the 2014 Directive (relating to limitation periods) is substantive in nature; therefore, the retroactive application of the transposing provisions is excluded under the 2014...
CASE HUB ARCHIVED -this archived case hub reflects the position at the date of the abandonment of the transaction on 8 February 2022; it is no longer maintained. See further, timeline. Case facts Outline European Commission merger probe into the planned acquisition of Arm by NVIDIA ( M.9987). The deal presents horizontal overlaps in the market for licensing Central Processing Unit intellectual property for use within processor products. Latest developments On 8 February 2022, the parties withdrew their notification to the Commission and confirmed that the transaction had been abandoned. Parties NVIDIA: NVIDIA, a US-based company, created the graphics-processing unit ( GPU) in 1999. It specialises in areas where GPU-led visual computing and accelerated computing platforms offer increased application throughput. Its portfolio spans gaming, professional visualisation, data centres and automotive. Following its acquisition of Mellanox (cleared by the Commission on 20 December 2019; M.9424), NVIDIA also provides network...
1. What is the applicable legislation? Foreign direct investment in Malta is governed by the National Foreign Direct Investment Screening Office Act, Chapter 620 of the Laws of Malta, which entered into force on 11 October 2020. The Act gives effect to Regulation ( EU) 2019/452, establishing an EU framework for screening FDI on security or public order grounds. 2. Which government or other body (or bodies) reviews foreign investments? The National Foreign Direct Investment Screening Office ( NFDIS). 3. What is the scope of the foreign investment regime? Does it only apply to specific sectors or types of investors (eg foreign or non- EU / non- WTO)? Are there specific rules for certain types of investors (eg state-owned enterprises)? The regime principally scrutinises foreign direct investments coming from third countries (that is, any non- EU state) on security and public order grounds, in relation to...
1. What is the applicable legislation? Foreign Direct Investment ( FDI) is treated differently from routine share acquisitions in South Korean companies by an individual of foreign nationality, a legal entity formed under foreign law, or an international organisation for economic cooperation (a Foreigner). FDI means a sustained commitment by the Foreigner to participate in management or to create a technical collaboration with a South Korean company or other entity, including private companies and those still being set up (together, the Domestic Entities). the Foreign Investment Promotion Act ( FIPA), along with the FIPA Enforcement Decree and Enforcement Regulations, plus the Ministry of Trade, Industry and Energy’s publicly announced rules on investment by Foreigners, which specify matters delegated by the Enforcement Decree and Enforcement Regulations and the requirements to carry out those delegated matters (together, the Foreign Investment Laws) if the FIPA lacks a...
CASE HUB ARCHIVED -this archived case hub reflects the position at the date of the judgment of 20 October 2021; it is no longer maintained. See further, timeline. Case facts Outline Third-party proceedings were brought before the General Court seeking to annul the European Commission’s 2017 decision to approve, without conditions, easy Jet’s acquisition of selected Air Berlin assets under the EU Merger Regulation ( Case M.8672). Latest development On 20 October 2020, the General Court delivered its judgment, dismissing the appeal in its entirety. Parties Applicant: Polskie Linie Lotnicze ‘ LOT’ S. A. ( PLL) Defendant: European Commission (the Commission) Background Air Berlin’s insolvency Confronted with a sustained decline in its financial position, in 2016 Air Berlin plc ( Air Berlin) initiated a restructuring plan. As part of that, on 16 December 2016, it entered into an arrangement with Deutsche Lufthansa AG ( Lufthansa) to sublet various aircraft...
CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment of 20 October 2021; it is no longer maintained. See further, timeline and related cases. Case facts Outline A third party brought an action before the General Court seeking annulment of the European Commission’s 2017 decision that conditionally approved Lufthansa’s proposed acquisition of certain Air Berlin assets under the EU Merger Regulation ( Case M.8633). Latest development On 20 October 2020, the General Court delivered its judgment dismissing the appeal. It concluded, amongst other findings, that the Commission had not committed any manifest errors of assessment in evaluating the merger’s effects on markets for air passenger transport to and from the relevant airports, given the low congestion at those airports and the limited incremental impact on Lufthansa’s slot share. Parties Applicant: Polskie Linie Lotnicze ‘ LOT’ S. A. ( PLL) ...
1. What is the applicable legislation? FDI is principally regulated by the Myanmar Investment Law 2016 ( MIL) alongside the Myanmar Investment Rules 2017 ( MIR). 2. Which government or other body (or bodies) reviews foreign investments? Foreign investment filings are considered by the Myanmar Investment Commission ( MIC), which consults the relevant ministries based on the nature of the intended business. 3. What is the scope of the foreign investment regime? Does it only apply to specific sectors or types of investors (e.g. foreign or non- EU/non- WTO)? Are there specific rules for certain types of investors (eg state-owned enterprises)? The MIL covers all current and future investments in Myanmar. It also extends to investment measures carried out by...
Justin Gutmann v First MTR South Western Trains Limited and Another and Justin Gutmann v London & South Eastern Railway Limited ( CPO application) [ Archived] NOTE-appeals were lodged before the Court of Appeal in Cases CA-2021-003329; CA-2021-003328 and CA-2021-003339. ARCHIVED-this case hub captures the position as at the judgment dated 19 October 2021 and is not being maintained. See the timeline, commentary and related cases. Case facts Outline of the CAT’s decision on two applications for a collective proceedings order brought by Mr Justin Gutmann, who sought approval to serve as the class representative to pursue opt-out collective proceedings under section 47( B) of the Competition Act 1998. Latest development On 19 October 2021, the CAT handed down judgment and dismissed the summary judgment/strike-out applications advanced by First MTR South Western Trains Limited and South Eastern Railway Limited; authorised Mr Gutmann to act as the class...
1. What is the applicable legislation? There is, at present, no dedicated foreign direct investment ( FDI) screening regime under Cambodian law. Nevertheless, to access investment incentives - including tax holidays and exemptions from import duties - an investor must register the project as a qualified investment project ( QIP) with the competent authorities, as outlined in Question 2. Registration of a project as a QIP remains discretionary. The principal laws applicable to FDI in Cambodia are: Law on Investment of the Kingdom of Cambodia dated 04 August 1994, as amended on 24 March 2003 ( LOI) Sub- Decree 79 on the Establishment of the Provincial/ Municipal Investment Sub-committee dated 8 June 2021 ( PMIS) Sub- Decree 111 amending the Law on Investment of Cambodia, enacted on 27 September 2005, as further amended on 23 April 2007 and 13 February 2019 ( Sub-...
1. What is the applicable legislation? The principal statute regulating both foreign and domestic investment in the Lao PDR is the Law on Investment Promotion ( No 14/ NA of 2016) (the Investment Promotion Law). This law sets out promoted activities, permissible investment forms, investment terms, investment and tax incentives, investors’ rights and duties, and the investment licensing process, which applies equally to domestic and foreign investors. The Enterprise Law ( No 33/ NA of 2022) (the Enterprise Law) took effect on 5 April 2023, replacing the previous Enterprises Law ( No 46/ NA of 2013). The new law broadly follows the prior regime, while introducing procedural tweaks to streamline the company set-up process. The Controlled and Concessionary Business Decree ( No 03/ PM of 2019) (the Controlled and Concessionary Business Decree) and the Notification of Conditional Businesses for Foreign Investors ( No 1327/ MOIC. ERM of...
1. What is the applicable legislation? The key statute regulating foreign investment in Argentina is Law No. 21,382, as amended (the Law). Its central rule affirms that foreign investors are afforded the same legal standing and rights as local investors. Other measures can also shape foreign investment, including bilateral investment treaties that protect the assets of nationals of particular countries, rules governing companies operating in Argentina, and, more recently, foreign exchange controls. As a rule, prior governmental authorisation is not required to launch a new venture or purchase an existing business, save for certain specific activities noted below and those falling under merger control regulations. 2. Which government or other body (or bodies) reviews foreign investments? The Ministry of Economy is charged with overseeing implementation of the Law. Depending on the sector, relevant regulatory authorities may likewise supervise foreign investment activity. 3. What is the scope of the...
ARCHIVED - this archived case hub sets out the position as at the judgment of 29 September 2021 and is no longer updated. NOTE - appeals were filed before the Court of Justice in Cases C- 757/21, C- 759/21 and C- 786/21. See the timeline and related/relevant cases. Case facts Outline Actions before the General Court sought annulment of the Commission’s decision of 21 March 2018, which found a cartel exchanging sensitive information to align future conduct and avoid price rivalry in the market for electrolytic capacitors (used to store electrical energy), and levied fines totalling €253.935m ( AT.40136). Latest development On 29 September 2021, the General Court rejected the applications and upheld the Commission’s fines. Parties Applicants: Nec Corporation ( Nec) Nichicon Corporation ( Nichicon) Tokin Corp (...
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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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