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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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This Practice Note offers practical direction on the relevance and distinctions of the like product in trade remedy inquiries. It sets out the reasons for identifying like products in anti-dumping, subsidy and safeguard inquiries. The note explains how the concept of like product guides the scope of an inquiry, the definition of the domestic industry and the assessment of injury. Introduction Trade remedy inquiries may vary in the subject under examination. Anti-dumping inquiries consider whether a product is sold in the export market for less than it is sold in the exporter’s home market. Countervailing inquiries consider whether the imported product benefits from a subsidy granted by the exporting Member State. Safeguard inquiries, in turn, consider whether goods are entering in suddenly increased quantities due to unforeseen circumstances. In all three types of trade remedy inquiry, it is crucial to specify what the imported product is. In...
Practice Note This Practice Note offers practical guidance on the current border controls between the United Kingdom and the European Union, along with the changes scheduled to commence on 1 January 2022. It covers customs declarations, the payment of customs duty and VAT, and sanitary and phytosanitary checks. Introduction In November 2021, the UK released its updated border operating model, explaining how the UK border functions in relation to the EU. The model was originally brought in on 1 January 2021 following the UK’s departure from the EU customs union. From that date, certain border controls were introduced. These were phased in to allow time to build and prepare the necessary infrastructure to support those controls. In December 2021, the UK further updated the border operating model to temporarily prolong staged customs controls for goods moving from the island of Ireland into Great Britain. This interim step was taken...
What is the GATS? GATS stands for the General Agreement on Trade in Services. It is an annex to the Marrakesh Agreement. As the first instrument to govern trade in services, it has applied since 1 January 1995. As with the General Agreement on Tariffs and Trade ( GATT), the GATS can only be properly understood when the agreement’s legal text is read together with each Member State’s schedule of commitments. This is especially important as Member States undertake specific commitments on market access and national treatment within those schedules. They can also list additional commitments covering matters such as qualification standards or licensing requirements for services. In addition, the GATS contains several annexes addressing particular service sectors, including financial and telecommunication services. Scope of the GATS Measures within the scope of the GATS The GATS applies to measures by Member States that affect trade in...
What are rules of origin? Rules of origin describe the benchmarks used to decide the Member State in whose territory a product is regarded as originating. These benchmarks differ markedly between Member States and also from one product category to another. In general, Member States operate both rules of broad application and rules tailored to specific products. Commonly, rules of origin set out two main avenues by which a product can be treated as originating in a Member State’s territory. The first avenue applies when a product is wholly obtained within a Member State. This typically means the item is entirely extracted, grown, or manufactured in that territory without inputs sourced from any other Member State. Such goods are also ordinarily prohibited from having been altered in the territory of another Member State. The second avenue applies where a product is not wholly...
This Practice Note sets out a synopsis of the Agreement on Technical Barriers to Trade. It clarifies that the agreement's scope spans technical regulations, standards and conformity assessment procedures. It also outlines when Member States may rely on technical barriers, alongside the core disciplines and guiding principles. Introduction to the Agreement on Technical Barriers to Trade Member States have acknowledged that, as tariffs fall, non-tariff obstacles are more likely to emerge as further impediments to open trade. This proved true under the General Agreement on Tariffs and Trade ( GATT) 1947, when, in 1979 during the Tokyo Round, the Members adopted the Standards Code. As with other areas of commerce, talks continued and ultimately produced the Agreement on Technical Barriers to Trade (the TBT Agreement). The TBT Agreement seeks to ensure that technical rules, standards, and conformity assessment procedures do not impose...
Introduction to the Trade Remedies Authority On 29 April 2021, the UK brought the Trade Act 2021 (the Act) into effect. The Act created the UK’s Trade Remedies Authority ( TRA) and allocated to it specified functions. It also provided for implementing international trade agreements negotiated by the UK, and for the gathering and disclosure of trade-related information. The TRA was constituted as an independent, non-governmental body to furnish the Secretary of State with advice, support and assistance in relation to: the conduct of an international trade dispute the Secretary of State’s trade-related functions the functions of the TRA This advice, support and assistance also encompasses trade remedies. The TRA is charged with investigating trade remedies concerning dumping, subsidies and safeguards. Most TRA functions are conferred by the Taxation ( Cross-border Trade) Act 2018 ( T( CT) A 2018). T( CT) A 2018, Sch 4 Pt 1 sets out the...
This Practice Note offers a primer on the agreement. It sets out the scope, the three categories of prohibited subsidies, the notification and transparency obligations, and dispute resolution. It also highlights other provisions relevant to the agreement. Introduction The AFS was agreed at the 12th WTO Ministerial Conference in June 2022 in Geneva. It forms part of a set of key trade initiatives known as the ‘ Geneva Package’. Other outcomes include: Ministerial Decision on TRIPS Non-violation and Situation Complaints Ministerial Declaration on Responding to modern Sanitary and Phytosanitary Challenges Ministerial Declaration on the Emergency Response to Food Insecurity Ministerial Decision on the TRIPS Agreement, and Ministerial Declaration on the WTO Response to the COVID-19 Pandemic and Preparedness for Future Pandemics Negotiations on the AFS began in 2001 during the Doha Round. It is only the second...
This Practice Note offers practical guidance on the kinds of reviews that may arise during the lifespan of anti-dumping duties in practice. It includes guidance on new shipper, interim, expiry and judicial reviews relevant to such measures. Introduction The Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the ‘ Anti-dumping Agreement’) makes provision for numerous reviews that may arise while anti-dumping duties remain in force throughout their duration and application. One such review is aimed at exporters who did not export during the period of investigation of the original anti-dumping investigation. It enables them to obtain an individual anti-dumping duty (or none where appropriate), rather than the residual rate applied to the Member State from which they export. Another review carried out before the end of the five-year period is the interim review. Interim reviews address...
This Practice Note sets out practical guidance on the. It explains the compulsory disciplines that apply to all services, and the voluntary alternatives for financial services, as provided in the General Agreement on Trade in Services ( GATS) Annex on Financial Services. Introduction The GATS governs trade in services. In January 2000, Member States began negotiations to further liberalise services trade. Those discussions were launched under the original mandate in Article XIX of the GATS. Article XIX obliges Member States to commence negotiations for more progressive liberalisation of trade in services by January 2020. The talks later became part of the Doha Round, which has not been concluded; consequently, there is no revised multilateral agreement on trade in services. In December 2011, the Member States, through the Ministerial Conference, adopted a waiver permitting Member States to grant preferential treatment to services and to services...
This Practice Note sets out the fundamental concepts of safeguard measures as provided in the World Trade Organisation’s ( WTO) Agreement on Safeguards and Article XIX of the General Agreement on Tariffs and Trade 1947 ( GATT 1947). It highlights the key points relevant to safeguards, including what amounts to a safeguard measure, when a Member State may deploy such measures, their content, form and duration, the domestic investigative procedure, and the need to maintain an equivalent level of concessions and obligations towards affected Member States. Introduction to safeguard measures Since the GATT 1947, Member States have had the authority to employ safeguard measures to prevent or repair serious injury to their domestic industries. These measures are not directed at unfair trade practices, such as dumping or subsidies; rather, they function as a safety value within fair trade. This safety value offers temporary relief by...
Introduction to the Before the World Trade Organisation’s ( WTO) Agreement on Trade-related Aspect of Intellectual Property Rights ( TRIPS Agreement), the General Agreement on Tariff and Trade ( GATT) 1947 already included certain provisions touching on intellectual property. These comprised: Article IX(6) concerning marks of origin. Member States must co-operate to stop the use of trade names in ways that misstate a product’s genuine origin, undermining distinctive regional or geographical product names safeguarded by legislation. Article XX(d) on the protection of patents, trade marks, copyrights and the prevention of deceptive practices. Member States may adopt or enforce measures necessary to secure compliance with laws (consistent with the GATT) relating to these protections and to curbing deceptive conduct. Article III on national treatment and the protection of domestic production. It bars Member States from introducing regulations that grant...
This Practice Note presents the WTO’s Agreement on Import Licensing, outlining the overarching provisions that apply to all import licensing procedures, together with the particular rules relevant to automatic and non-automatic import licensing procedures. It also explains the obligation to notify the WTO Committee on Import Licensing. Introduction Import licensing can impede trade in goods. This had already been acknowledged under the General Agreement on Tariffs and Trade ( GATT) 1947. Article VIII of GATT 1947 treated import licensing in broad terms, including that: Member States recognised the need to minimise import and export formalities, and to reduce and simplify import and export documentation requirements Member States agreed, if requested by another Member State, to review the operations of their laws and regulations in light of Article VIII Member States were prohibited from imposing substantial penalties for minor breaches of customs...
This Practice Note offers practical guidance on the WTO Agreement on Preshipment Inspections. It sets out the obligations for governments that utilise preshipment inspection, including non-discrimination, transparency, protection of confidential business information and the avoidance of unreasonable delays... Introduction Preshipment inspection typically concerns the verification of the quality, quantity and price of goods prior to export. Private companies are often engaged to carry out these checks. The WTO Agreement on Preshipment Inspections recognises that such inspections may act as a barrier to trade. Accordingly, it subjects preshipment processes to selected principles and obligations drawn from the General Agreement on Tariffs and Trade ( GATT)... Scope of the Agreement on Preshipment Inspections Preshipment inspection activities encompass all actions related to confirming the: quality quantity price, including currency exchange rate and financial terms customs...
This Practice Note sets out practical guidance on the WTO’s Customs Valuation Agreement, detailing the approaches to valuing imports for customs purposes. It also explains the avenues for challenging a customs valuation decision and the entitlement to have goods released while a valuation determination is pending. Introduction The General Agreement on Tariffs and Trade ( GATT) 1947 laid down the overarching principles for customs valuation. Under Article VII(2), the customs value had to reflect the actual value of the imported item, with valuations based on domestic goods, or on arbitrary or fictitious figures, expressly barred. The provision also clarified what amounted to the ‘actual value’ of an import, yet it left room for different valuation techniques for customs purposes. During the Tokyo Round negotiations, Member States adopted the Agreement on Implementation of Article VII of the GATT 1947. Concluded in 1979, it anchored customs...
This Practice Note presents a practical overview of the Agreement on the Application of Sanitary and Phytosanitary Measures. It offers hands-on guidance on what qualifies as sanitary and phytosanitary ( SPS) measures, the reach of the SPS Agreement, and how it differs from the Technical Barriers to Trade ( TBT) Agreement. It explains the entitlement to apply SPS measures and the constraints that bind Member States when putting SPS measures in place. It sets out the risk assessment that Member States must carry out before introducing an SPS measure. It also outlines advice on recognising the equivalence of SPS measures among Member States and the transparency requirements associated with SPS measures. Introduction to the SPS Agreement The Agreement on the Application of Sanitary and Phytosanitary Measures ( SPS Agreement) took effect alongside the creation of the World Trade Organisation on 1 January 1995. The SPS...
This Practice Note sets out the core ideas behind subsidisation and countervailing action as found in the WTO’s Agreement on Subsidies and Countervailing Measures. It addresses key issues in subsidy cases, including how the like product is identified, definition of the domestic industry, the meaning of a subsidy, what counts as a prohibited subsidy, what amounts to an actionable subsidy, the two avenues for tackling subsidy disputes, the precise level of impact required for actionability, and the range of countervailing duties that can be applied. Introduction The 1947 General Agreement on Tariffs and Trade ( GATT) set out several rules on subsidies. Article VI concerns countervailing duties designed to offset the effects of a subsidy. Article XVI of the GATT laid down specific disciplines for domestic subsidies as well as export subsidies. The disciplines embodied in GATT 1947 were indeed relatively limited. This shortcoming prompted...
The Agreement on Agriculture The Agreement on Agriculture took effect under the Marrakesh Agreement on 1 January 1995. It concerns solely trade in agricultural goods, although undertakings on such goods appear in each Member State’s schedule of concessions annexed to GATT 1994. To grasp a Member State’s obligations on farm products, one must consult both the Agreement on Agriculture and that State’s schedule of commitments. Agricultural products are set out in Annex 1 to the Agreement on Agriculture. The definition refers to the Harmonised System, the standardised numerical method for classifying traded goods administered by the World Customs Organisation. It spans Chapters 1 to 24 of the Harmonised System, as well as limited portions of Chapters 29 to 53. Agricultural products include: live animals and products of animal origin vegetables and vegetable products fruits and fruit products fats and oils prepared foodstuffs, beverages, wines, spirits and vinegar, tobacco and...
What is the GATT? GATT stands for the General Agreement on Tariffs and Trade. It exists in two iterations. The original, GATT 1947, was created to pursue the following objectives: remove discrimination in the trade of goods fix and lower customs duties on goods do away with other non-tariff obstacles affecting goods Before the World Trade Organisation ( WTO) came into being, GATT 1947 governed trade in goods. The second iteration, GATT 1994, was adopted within the package of WTO agreements at the WTO’s establishment (see Practice Note: An introduction to the World Trade Organisation). It develops the 1947 text by carrying over its provisions. GATT 1994 also absorbs certain legal instruments concluded under GATT 1947, notably tariff concessions and the protocols of accession of Member States to GATT 1947. In addition, it includes the Marrakesh Protocol to GATT 1994, which sets out the...
Structure of the WTO agreements The Marrakesh Agreement Establishing the World Trade Organisation ( Marrakesh Agreement) functions as the umbrella WTO Agreement, as it provides the institutional and legal framework. The next layer of instruments sits in Annex 1 to the Marrakesh Agreement. Three agreements - the General Agreement on Tariffs and Trade 1994 ( GATT 1994), the General Agreement on Trade in Services ( GATS) and the Agreement on Trade-related Aspects of Intellectual Property Rights ( TRIPS Agreement) - set out the core principles on liberalising trade in goods, services and intellectual property rights, respectively, together with any exceptions. This Practice Note introduces those principles and exceptions. It should be noted that, for GATT 1994 and GATS, two additional layers must be considered to obtain a comprehensive view of trade in goods or services. Under GATT 1994 there are further agreements or annexes...
What is the World Trade Organisation? The World Trade Organisation ( WTO) serves as the institutional and legal architecture for trade among Member States. It therefore oversees the pacts concluded by WTO Members, adjudicates disputes between Member States, reviews compliance with the various agreements, and acts as a negotiation platform on a wide array of trade-related matters. The WTO came into being on 1 January 1995, though its origins reach back to 1948, when the 1947 General Agreement on Tariffs and Trade ( GATT 1947) was concluded. Following numerous rounds of negotiations, Members in 1994 at Marrakesh adopted the Marrakesh Agreement Establishing the World Trade Organisation ( Marrakesh Agreement). That agreement created the WTO and sets the institutional and legal basis for the multilateral trading system. The Marrakesh Agreement contains four annexes, complemented by certain decisions and declarations. Taken together, these legal texts...
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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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