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Introduction to statutory interpretation The aim of statutory interpretation is to determine the legal meaning of a statute, that is, the sense that expresses the legislator’s intention. The clearest guide to that intention is the statutory wording itself, read in its context and with its overall purpose in mind, and its broader legislative setting. Courts should seek to fulfil the purpose of legislation by construing its language, so far as they can, in the manner that most effectively serves that purpose. Put differently, the courts’ default method is purposive, and every enactment is to be construed with that end in view. There is a starting presumption that the grammatical and ordinary sense of an enactment reflects the meaning intended by the legislator. Where an enactment reasonably bears only a single meaning, and no other interpretative tools or
This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 (TrA 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed
Definition of ADR Alternative dispute resolution (ADR) is defined in the CPR Glossary as a collective label for methods of settling disputes other than through the usual trial process. Some courts adopt the term ‘negotiated dispute resolution’ (NDR) to describe resolution by alternative means; for ease, this Practice Note uses ADR. For guidance on how ADR is addressed in the various court guides, see Practice Note: ADR and NDR in the court guides. In essence, ADR is a means of resolving a dispute outside the court system. It typically involves a neutral third party who either helps the parties reach a negotiated outcome, or issues a determination of the dispute that is legally binding. A binding result can follow where the agreement to refer the dispute to ADR so provides. There are multiple forms of ADR processes. For an outline of the different types and their
In brief The British constitution is uncodified, meaning it does not spring from a single constitutional document or code. It draws on a wide range of written and unwritten sources. Alongside the principal written sources of law in England and Wales—legislation (which has also introduced international and human rights principles into our constitution) and the common law—the constitution also rests on two further unwritten bases within this system: the prerogative, and non-legal constitutional conventions. In addition, on one view the basic or prevailing principle of our constitution, Parliamentary sovereignty, is ultimately grounded in political fact rather than in law. Legislation Legislation is the foremost source of constitutional law. Acts of Parliament may set out detailed constitutional rules, or even pass authority to create them to ministers or to others. Under the doctrine of Parliamentary sovereignty, legislation is traditionally regarded as taking precedence over any other form or kind of
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ARCHIVED: This Practice Note is archived and not maintained. It was originally prepared for Lexis Practice Advisor®, in the US. What is a patent? Under the US Patent Act 1952 ( Patents Act), patents are issued by the US Patent and Trademark Office ( USPTO). A patent owner holds a time-limited right to stop others from practising the claimed invention within the United States. The most common form is the utility patent, typically claiming a tangible thing or a set of steps. Design patents protect the ornamental appearance of an article of manufacture. Plant patents safeguard a plant variety produced through grafting, budding, or comparable methods (rather than by seed). Importantly, eligible subject matter must be stated in the patent claim itself; a disclosure in the specification alone is not enough. See Two- Way Media Ltd v Comcast Cable Communs, LLC, 874 F.3d 1329,...
Relevance of non-qualified deferred compensation arrangements and Section 409A In the United States, deferred compensation schemes are attractive to senior executives and other top earners because they let them delay recognising income and associated taxes until a later year. A qualified arrangement—such as a 401(k) plan—offers one route to defer pay. Yet for executives, these qualified plans have limited utility owing to ceilings on how much can be deferred and other constraints that apply to them. By contrast, non-qualified deferred compensation arrangements have no formal caps on deferrals and are not bound by the various restrictions that govern qualified plans. Although non-qualified plans do not restrict the sums employees may put aside, they are not without hazard. The assets backing the promise must stay available to satisfy the sponsoring employer’s creditors until benefits are ultimately paid, potentially many years or even decades hence. They must also...
What is an LLC and how is it different to other forms of business organisation? A limited liability company ( LLC) is a legal form of business organisation in the US. It is essentially a hybrid structure, blending characteristics of a corporation and a partnership together. Comparable to a UK private limited company, it grants owners limited liability protection, whilst, subject to elections made by the entity, it may potentially be treated as fiscally transparent for tax, much like a partnership. Where an LLC is regarded as, or elects to be, tax transparent, all profits and losses flow directly to its owners—who are members rather than shareholders—and tax is therefore charged on the members instead of the entity itself. Nonetheless, despite the potentially advantageous tax position of LLCs, the treatment of LLC members for tax across different jurisdictions is not always simple in practice. By way of...
This Practice Note sets out essential tips for advising a client weighing a liability management transaction. Amid recurring market swings, issuers across numerous sectors periodically assess options such as debt buy-backs, tender or exchange offers, and consent solicitations. Such transactions enable an issuer to refinance or reorganise outstanding obligations and, in certain circumstances, to satisfy accounting, regulatory, or tax aims. The potential advantages can be considerable, ranging from signalling confidence to the market to avoiding more drastic measures. Extending debt maturities Recognising an accounting gain Deleveraging Securing possible regulatory capital benefits Enhancing financing flexibility Potentially forestalling a deeper restructuring or bankruptcy Demonstrating a positive outlook in an uncertain market environment Selecting the most suitable liability management route is critical, requiring issuer and counsel to weigh multiple considerations, as outlined below. Deciding between repurchases, tender or exchange offers, and consent solicitations will turn on the issuer’s objectives,...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally prepared for Lexis Practice Advisor®, in the US. It addresses trade mark infringement and false designation of origin under the Lanham Act, including standing to sue, the elements needed to prove such claims, and possible remedies (such as injunctive relief, damages, and attorneys’ fees). It also summarises defences commonly raised in trade mark litigation. Trade mark owners may bring proceedings to prevent others from using, imitating, or otherwise harming their trade marks or service marks (collectively, trade marks or marks). Indeed, trade mark owners (and in some cases exclusive licensees) have a legal obligation to monitor and enforce their rights. Failing to do so can result in loss of those rights. Owners should consider issuing a claim when: swift intervention is required to protect the mark from...
This Practice Note This Practice Note outlines the framework for the executive pay deduction cap under IRC, s 162(m), as revised by the Tax Cuts and Jobs Act ( Pub. L. No. 115-97) ( TCJA) and the American Rescue Plan Act ( Pub. L. No. 117-2), s 9708. In general, IRC, s 162(m) limits to $1m the annual deduction a public corporation, or certain other reporting entities, may claim for remuneration paid to designated covered employees. Practitioners should grasp these rules—including the full reach of the TCJA amendments (effective for tax years beginning after 31 December 2017) and ARPA’s expanded covered employee definition (effective for tax years beginning after 31 December 2026)—to help their public and reporting company clients craft senior executive pay packages that reduce unfavourable tax outcomes under IRC, s 162(m). This Practice Note is organised in the following...
ARCHIVED: This Practice Note is archived and no longer updated. It was initially prepared for Lexis Practice Adviser, in the US. It outlines similarities and differences between the protections available for typical categories of IP, such as literary works (copyright and trade secret); marketing imagery, characters and slogans (copyright and trade mark); product designs (design patent, copyright and trade dress) and inventions (patent and trade secret). It addresses coverage and duration, as well as scope and eligibility requirements too. Literary works—copyright versus trade secret protection For information to amount to a trade secret, it must truly be confidential, the proprietor must take steps to preserve that confidentiality, and it must confer a competitive economic benefit on the owner. Trade secrets usually comprise commercial or business information and may endure without limit, provided the secrecy is maintained. Copyright, by contrast, applies to subject matter such as...
ARCHIVED: This Practice Note is archived and no longer updated. It is provided for background reference only. The Customer Code The Finance Industry Regulatory Authority ( FINRA) maintains two Codes of Arbitration Procedure. One is the Code of Arbitration Procedure for Customer Disputes (the Customer Code), which oversees arbitrations between investors and industry participants. For details on starting an arbitration under the alternative code, the Code of Arbitration Procedure for Industry Disputes (the Industry Code), see Practice Note: FINRA—commencing an arbitration under the Industry Code. Starting an arbitration When an investor dispute occurs, FINRA arbitration will be obligatory in defined scenarios. In other situations, the parties may choose to arbitrate under the Customer Code. In every case, claims must be brought within six years of the events underpinning the dispute (the Customer Code, Pt II, r 12206). Under the Customer Code, Pt II, r 12200, FINRA...
ARCHIVED: This archived Practice Note is not being maintained. Today, most global businesses work with third parties, tapping into vital capabilities that help them operate across markets. Yet those relationships can also carry significant corruption exposure, potentially resulting in breaches of the Foreign Corrupt Practices Act ( FCPA). With the right diligence, tailored contractual terms, targeted training, and robust oversight, organisations can manage FCPA risk while still benefiting from third-party contributions to their operations. The FCPA bars corrupt payments made through intermediaries when a company is ‘knowing’ that some or all of the money will be passed to a foreign government official. It is not necessary to have actual knowledge of a third party’s conduct; wilful blindness can be enough to attribute knowledge. In practice, businesses cannot look the other way or disregard indications of possible bribery by those they engage. Agents,...
ARCHIVED: This archived Practice Note is not being maintained. When is a parent corporation liable for the acts of its subsidiaries under the Foreign Corrupt Practices Act ( FCPA)? Under long-standing principles of US corporate law, a parent may be held to account for a subsidiary’s conduct when courts pierce the corporate veil on limited grounds. Two recognised theories support veil piercing, each demanding exacting proof, and judges emphasise that this power should be used reluctantly and with caution. Alter ego Agency Worryingly, the Securities and Exchange Commission ( SEC) has indicated that a parent could face liability for a subsidiary’s misconduct even where the parent lacked awareness of the wrongdoing or did not exercise an improper degree of control over that entity. In the 2013 Ralph Lauren Corporation ( RLC) resolution, the Department of Justice ( DOJ) aligned itself with the SEC’s broader conception of parental...
This Practice Note offers an introduction and addresses matters concerning its scope of application. It sets out best practice guidance on helping your clients meet FCPA requirements, including establishing and running an effective anti‑corruption compliance programme within their organisations. The Practice Note also outlines current FCPA enforcement patterns. For organisations operating across borders, it is crucial that they grasp their duties and constraints under the FCPA. As enforcement intensifies and regulators gain unprecedented visibility into the transactions themselves, informing organisations about the FCPA is a highly valuable professional service lawyers can deliver. For further detail on the FCPA, see Practice Notes: Practical steps in a bribery investigation— UK and US perspectives and The US Foreign Corrupt Practices Act 1977 ( FCPA 1977) and Bribery Act 2010 ( BA 2010) comparison table, as well as: Best practices in FCPA...
This Practice Note presents a comparison table outlining the differences and similarities between the US Foreign Corrupt Practice Act 1977 ( FCPA 1977) and the UK Bribery Act 2010 ( BA 2010). For details on the UK BA 2010, see Practice Note: The Bribery Act 2010—an introductory guide. For material on the US FCPA, see Practice Note: US Foreign Corrupt Practices Act ( FCPA). For information on international co-operation and co-ordination between the US and the UK, together with the main considerations when investigating and enforcing potential FCPA breaches, see Practice Note: FCPA internal investigations and enforcement proceedings ( US)... Key aspects US Foreign Corrupt Practice Act 1977 Who does the Act apply to? US companies (incorporated or not), US residents and non-residents acting within the US, US...
Foreign Account Tax Compliance Act ( FATCA) The Foreign Account Tax Compliance Act ( FATCA) comprises three main pillars: strengthened due diligence, expanded information reporting, and a potential withholding tax on US‑source payments. This Practice Note explores typical issues encountered in implementing, and complying with, FATCA, such as: whether refunds or tax credits can be claimed for amounts withheld under FATCA which obligations are excluded (grandfathered) from FATCA what counts as pre‑existing obligations for FATCA purposes For a discussion of the broad meaning of a foreign financial institution ( FFI) under FATCA, and the obligations triggered by falling within scope, see Practice Note: US: FATCA—foreign financial institutions ( FFIs). For an outline of what a non‑financial foreign entity ( NFFE) is (and is not), and the different types of agreements that can ease FATCA’s burdens, see Practice Note: US:...
The Foreign Account Tax Compliance Act ( FATCA) rests on three core pillars: heightened due diligence wider information reporting a possible withholding tax on US‑source payments FATCA’s primary aim is to secure information on offshore accounts owned by US persons, thereby imposing extensive disclosure and reporting obligations on foreign financial institutions ( FFIs) and other overseas entities. A significant concern identified by the Internal Revenue Service ( IRS) is the use of foreign corporations to hold assets abroad, which contributes to under‑reporting of income by US taxpayers. This Practice Note addresses: what a non‑financial foreign entity ( NFFE) is what an excepted NFFE is what foreign financial institution ( FFI) agreements are what an intergovernmental agreement ( IGA) is the overarching reporting and due diligence duties under an IGA For analysis of the expansive definition of an FFI for FATCA...
This Practice Note outlines the principal types and tax treatment of equity compensation awards used within wider remuneration programmes. Whether a company is privately owned or publicly held, there are many reasons to build pay structures that feature equity compensation. Linking reward to the company’s value forges a direct connection between business results and employee pay, aligning staff interests with those of shareholders. Equity can also foster an ownership mindset, encouraging behaviours and performance that enhance the company’s worth. Equity compensation appears in numerous forms and can be tailored to drive both long- and short‑term outcomes, support retention, settle in shares, cash, or a blend of the two, and, when structured appropriately, provide tax‑deferred growth advantages. This Practice Note reviews the fundamental categories of equity and equity‑based awards. For information and strategies on designing public and private company equity plans, see Practice Notes:...
ARCHIVED – this case hub captures the position as at the date of the decision of 28 April 2020; it is no longer maintained or updated. NOTE— appeals were filed before the General Court in Cases T- 386/21 and T- 406/21. See also: timeline. Case facts Outline European Commission Article 101 TFEU inquiry into the sharing of commercially sensitive information and price coordination relating to US dollar denominated supra-sovereign, sovereign and agency bonds ( Case AT.40346). Latest development On 28 April 2021, the Commission adopted an infringement decision against Bank of America Merrill Lynch, Crédit Agricole and Credit Suisse for taking part in a cartel in the EEA secondary trading market for US dollar denominated Supra-sovereign, Sovereign and Agency bonds. A tight-knit circle of traders at these investment banks, who knew one another on a personal level, formed the cartel. The Commission concluded that, during a...
STOP PRESS : The Financial Choice Act, approved by the US House of Representatives in June 2017, aims in substantial measure to roll back numerous restrictive elements of the Dodd- Frank Act, among them the Volcker Rule. In the wake of that vote, the US Treasury issued a 150-page document (‘ Treasury Report’) for President Donald J. Trump, reviewing the United States’ financial regulatory architecture and setting out executive steps and rule changes that could be implemented swiftly and promptly without delay to ease the burden on firms......
This Practice Note outlines the US laws, regulations and supervisory bodies most pertinent to international issues of debt securities outside the US, and covers—(1) Rule 144A, (2) Regulation S, (3) the TEFRA C and D Rules, (4) 10b-5 letters, (5) the Securities and Exchange Commission, (6) the Commodity Futures Trading Commission, (7) the registration and reporting obligations for foreign private issuers that issue securities, or seek a secondary public trading market for their securities, in the US, and (8) state securities (blue sky) laws. Introduction The US provisions most relevant to international issues of debt securities outside the US are: the exemptions available under Rule 144A and Regulation S of the Securities Act of 1933 (the Securities Act); and US Treasury Regulations section 1.163 5(c)(2)(i)( C) and ( D) ( TEFRA C and D Rules). The US regulatory authorities with greatest relevance to...
ARCHIVED This Practice Note is archived and is no longer maintained. It was first produced for Lexis Practice Adviser, in the US. The charts present an at-a-glance summary of copyright terms (also known as copyright duration or duration of copyright) for works first published on or after 1 January 1978 (post-1978 works) and for works first published before 1 January 1978 (pre-1978 works), including whether renewal terms are needed or available. For a general overview of copyright law, see: US—copyright fundamentals [ Archived]. Post-1978 works All original works of authorship created and fixed in a tangible medium of expression on or after 1 January 1978 (the effective date of the Copyright Act of 1976) are automatically protected upon fixation. The duration varies by the nature of the work: Works of an individual author: life of the author plus 70 years Works of joint authorship: life of the...
This Practice Note was originally prepared for Lexis Practice Advisor®, in the US. It outlines the exclusive rights granted to US copyright owners: the ability to reproduce the protected work, to create derivative works, to distribute copies or phonorecords, to perform the work publicly (including by means of a digital audio transmission), and to display the work publicly. Explanation of exclusive rights Although people often speak of owning ‘a’ copyright in a work, copyright is in fact a bundle of six distinct and independent rights held exclusively by the owner, ie a monopoly over those rights, for the period during which copyright remains in effect. Exclusivity means only the copyright owner may carry out, or authorise others to carry out, any of the six activities set out in Section 106 of the Copyright Act. If someone other than the owner engages in one of those...
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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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