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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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Note— To verify whether notification thresholds in the United States and worldwide are met, please refer to: Where to Notify. 1. Have there been any recent developments or noteworthy items in relation to ? Are there any other ‘hot’ merger control issues in the US? Recent developments and key trends include: Changes to HSR Act framework: On 10 October 2024, the Federal Trade Commission ( FTC) confirmed the final version of proposed amendments to the Hart‑ Scott‑ Rodino ( HSR) Act rules, which took effect on 10 February 2025. The revisions materially widen the volume and categories of information, documents and data required for HSR submissions. They particularly seek fuller detail on private equity and other financial sponsor organisations, officer and director board appointments, any existing or potential horizontal or vertical overlaps between the parties, and further information on corporate and...
Insurers prepare specialised contracts, known as insurance policies, which set out specified elements of cover for insureds and the insurers’ obligations when a covered loss occurs. The meaning of a covered loss is defined within each policy and will differ according to the type of policy purchased. This Practice Note examines the two core duties an insurer owes to an insured—the duty to defend and the duty to indemnify. The duty to defend refers to the insurer’s obligation to provide the insured with a defence to claims brought under the policy. The duty to indemnify concerns the insurer’s obligation to pay a claim for loss or damage asserted against the insured. For additional insight into these concepts, see: —checklist. Basics of an insurance policy The duty to defend and the duty to indemnify mainly arise under liability...
This Practice Note offers a high-level summary of insurance bad faith claims, covering the policyholder’s entitlements under an insurance policy, the events that trigger a claim, and the advantages of issuing a claim. Where a jurisdiction’s statutory regime sets out acts, omissions, delays, or commercial practices that may underpin a bad faith action, or obliges a complainant to meet conditions precedent before bringing one, these are identified. Save for any state-specific illustrations, this Practice Note is non-jurisdictional. For further detail on common bases for insurance bad faith claims and issues arising in bad faith disputes, see Practice Note: US—insurance bad faith coverage litigation. What is an insurance bad faith claim? Under an insurance contract or policy, insurers owe numerous obligations to those they insure (the policyholder or insured) and to individuals pursuing claims against their insureds (claimants). In meeting those...
Insurance agreements, like any contract, carry an implied obligation that the parties act with good faith and fair dealing towards one another. This principle has prompted courts and legislatures to develop standards that define the specific duties insurers owe to policyholders. The resulting legal framework enables policyholders, in prescribed circumstances, to seek recovery from insurers for ‘bad faith’. This Practice Note identifies common bases for insurance bad faith claims and addresses litigation issues, including: Jurisdiction-specific bad faith standards Insurer defences Discovery points Considerations regarding available types of damages For additional guidance on insurance bad faith claims, see Practice Note: US—insurance bad faith claims. Bad faith generally Contracts typically imply a duty of good faith and fair dealing, requiring each party not to act in a way that harms the other party’s right to the benefit of the agreement. In the...
The restriction on insider trading What is insider trading? Insider trading is often linked with unlawful behaviour, yet the term covers both lawful and unlawful activity. The lawful form arises when corporate insiders of a public company, such as officers, directors and employees, deal in their own company’s shares. When corporate insiders of a US publicly traded company transact in their own securities, they should notify the SEC of their dealings. Further details on this reporting duty appear in Forms 3, 5 and 5 within the Securities and Exchange Commission’s Fast Answers databank. Unlawful insider trading is the purchase or sale of a security, in breach of a fiduciary duty or other relationship of trust and confidence, while holding material, nonpublic information ( MNPI). Other breaches include: ‘tipping’ such information securities trading by the person ‘tipped’ securities trading by those who...
ARCHIVED : This Practice Note is archived and is no longer being updated. For information on the US Foreign Corrupt Practices Act, see Practice Note: The US Foreign Corrupt Practices Act 1977 ( FCPA 1977) and Bribery Act 2010 ( BA 2010) comparison table. As organisations move into new markets to capture growth, caution is vital, as fresh opportunities also carry fresh challenges. Multinational companies, in particular, face exposure where a subsidiary, affiliate, employee, or agent engages in misconduct that breaches the US Foreign Corrupt Practices Act ( FCPA). The Department of Justice ( DOJ) and the Securities and Exchange Commission ( SEC) are prioritising FCPA enforcement and show no sign of easing their pursuit of FCPA actions. To prevent, detect, and remediate behaviour that may violate the FCPA, in-house counsel and compliance professionals should identify business areas at risk and understand the conduct the FCPA...
Archived note: This Practice Note is no longer maintained and is provided for background only. The Financial Industry Regulatory Authority ( FINRA) is an independent regulatory organisation for the US securities market. It runs the sector’s largest dispute resolution forum, addressing financial and commercial disagreements between investors, brokerage firms and individual brokers, as well as conflicts within and between brokerage firms and brokers. These matters are handled through FINRA’s own arbitration process Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules)—governs arbitrations between investors and industry participants Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA Rules)—governs arbitrations between industry parties This note concerns issues relating to the arbitral panel (the panel) under the Customer Code. For guidance on the panel under the Industry Code, see...
Securities and Exchange Commission ( SEC) What is the SEC? Established by the Securities Exchange Act of 1934, the SEC came into being as that statute amended and reinforced the Securities Act of 1933, brought in after the 1929 stock market crash. Together, Acts sought to rebuild investor confidence in US capital markets by ensuring investors and the markets received more dependable information and clear, unambiguous rules for honest dealing. The SEC functions as an independent and autonomous government body responsible for supervising US securities markets, applying securities law, and overseeing exchanges that trade shares, options, and other securities......
This Practice Note was first prepared for Lexis Practice Advisor®, in the US. It outlines how online businesses that host user-generated content ( UGC)—including social networks, video platforms, and digital marketplaces—can reduce exposure to copyright claims by meeting the US Digital Millennium Copyright Act ( DMCA) safe harbour under 17 U. S. C. § 512(c). The DMCA contains four safe harbour provisions (sections 512(a)–(d)) that protect service providers from liability for infringement. This note concentrates on the UGC safe harbour, section 512(c), which is the safeguard most often relied upon. To invoke this defence, companies must take defined actions, such as running a notice-and-takedown system and putting a copyright policy in place. The safe harbour shields service providers from monetary damages, even where users commit infringement by posting unauthorised material. Although a qualifying company may still be sued, the remedies are limited, for...
Archived: This archived Practice Note gives corporate lawyers a concise overview of the principal features of corporate governance in the United States. In the context of directors’ duties, board organisation, the functions of the Chair, CEO and non-executive directors, committee composition, nominations and executive remuneration, it reviews the legislative and regulatory sources of governance obligations. Where appropriate, it references the listing rules of the New York Stock Exchange or the NASDAQ stock market. It places particular emphasis on the significant effects of the Dodd- Frank Act. It also highlights key proxy organisations and institutional investor groups within the USA corporate landscape. This Note is not maintained and is provided for background purposes only. Background Unlike the UK, the USA has not implemented a single corporate governance code for public corporations. Instead, governance requirements arise from a range of federal and state laws,...
ARCHIVED: This Practice Note has been archived and is not maintained Originally prepared for Lexis Practice Advisor® in the United States, this Practice Note outlines the copyright registration process and covers: the advantages of federal registration preparing and lodging a copyright application (online or on paper) applicable filing fees the deposit obligation replying to enquiries from the US Copyright Office the potential for preregistration of particular categories of works The Copyright Office also issued notices revising certain timing provisions and widening electronic submission options in response to the coronavirus ( COVID-19) pandemic. For an overview of copyright law, see Practice Note: US—copyright fundamentals [ Archived]. Benefits of copyright registration Copyright arises the moment an author commits an original work of expression to a fixed medium (for example, on paper, in a computer file, or as a sound...
ARCHIVED: This Practice Note has been archived and is not maintained. It was originally prepared for Lexis Practice Advisor®, in the US. This Note examines the fair use defence in US copyright law, including the preamble and the four statutory factors set out in 17 U. S. C. § 107, and leading fair use decisions from the United States Supreme Court and the Courts of Appeals. It also offers guidance on advising clients who wish to use copyrighted works as to whether a particular use is fair. Overview of Fair Use Defense Fair use is perhaps the most commonly invoked response to an allegation of copyright infringement. Codified in section 107 of the Copyright Act, the doctrine provides that even when a protected work is used without the copyright owner’s permission, the unauthorised use will not infringe if the use is fair. The burden of...
Class actions— USA— Q& A guide This Practice Note presents a jurisdiction-specific Q& A on class actions in the USA, featured in the Lexology Getting the Deal Through series by Law Business Research (law stated at: 9 October 2022). Authors: Cleary Gottlieb Steen & Hamilton LLP— Roger A Cooper; Lina Bensman; Allison Kim. 1. Outline the organisation of your court system as it relates to collective or representative actions (class actions). In which courts may class actions be brought? The American court structure comprises two parallel systems: the federal courts and the state court systems. The federal judiciary operates on three tiers: Trial courts, termed the ‘ US District Courts’, located nationwide; Thirteen intermediate appellate courts, the ‘ US Courts of Appeals’; The highest court, the ‘ US Supreme Court’. The Supreme Court has jurisdiction over all matters brought in federal courts, and over cases from state courts that involve...
Class action litigation has long been a fixture of US courts, its modern trajectory often linked to the US Supreme Court’s decision in Green Tree Financial Corp v Bazzle, 539 U. S. 444 (2003) ( Bazzle). US case law recognises that class disputes may proceed in arbitration where an arbitration agreement allows it. Persistent uncertainties remain, however, about what amounts to consent to class arbitration and whether that gateway issue is for a court or an arbitral tribunal to decide. Nevertheless, several prominent arbitral institutions have introduced rules addressing class arbitration. Note: the US judgments mentioned in this Practice Note are not reported by Lexis Nexis UK. What is class action dispute resolution? Class actions were created to manage alike claims held by many claimants within a single proceeding. A representative plaintiff brings the case on behalf of others in comparable positions and applies to the court to...
Updated in July 2024 Introduction The United States ranks among the world’s most competitive economies. It remains the largest national market, posting an estimated 2020 GDP exceeding US$22.3trn, and performs strongly on the World Bank’s Ease of Doing Business Index. Many overseas businesses choose to build a footprint in the US for persuasive reasons. Chief among these are entry to a powerful economy and cutting-edge technology, coupled with political stability and a mature legal framework supported by established courts, regulators and public authorities. While the US tax system can be intricate, working with a US attorney can make this obligation more manageable. There are multiple options for structuring operations in the US. This guide sets out key matters a new venture ought to weigh before commencing activity in the country. It is not exhaustive, and tailored US legal advice should always be obtained prior to...
ARCHIVED : This Practice Note has been archived and is no longer maintained. Updated for the UK by the Practical Guidance Team. Chapter 7 offers debtors a fresh beginning after setback. That restart differs for an individual and a company under Chapter 7. In particular, only an individual debtor is eligible for a discharge of debts in a Chapter 7 case—there is no equivalent discharge available to business debtors in a Chapter 7 proceeding (see 11 U. S. C. § 727(a)(1); Fed. R. Bankr. P. 4004(c)(1)( A)). Business debtors instead achieve relief from obligations through winding up or dissolution (see Collier on Bankruptcy P 727.01). Distinct from proceedings under other parts of the Bankruptcy Code, a Chapter 7 case places a trustee in charge of the debtor’s property, who sells the assets and allocates the proceeds to creditors pursuant to the Code’s priority and...
Banking regulation— USA— Q& A guide This Practice Note provides a USA-specific Q& A overview of banking regulation, featured in the Lexology Getting the Deal Through series by Law Business Research (law as at 30 January 2023). Authors: Debevoise & Plimpton— Gregory J Lyons; Alison M Hashmall; Chen Xu. 1. What are the main governmental and regulatory policies that oversee the banking sector? Because of their significance to the US economy, banking organisations are among the most intensively regulated institutions in the United States. In broad terms, public policy and supervisory frameworks concentrate on two key areas: protecting the safety and soundness of banking organisations; and advancing economic and social aims, including keeping banking and commerce separate. On the first theme, banking organisations are governed by an extensive body of laws, regulations and policies that restrict their activities. Whereas a typical US...
By Randy J. Maniloff of White and Williams LLP, and Jeffrey W. Stempel, this survey examines the insurability of punitive damages across the United States. It spans all 50 states and the District of Columbia. The central question is whether a given state's public policy allows a tortfeasor to obtain insurance for punitive damages that they might be legally required to pay. Issues of cover frequently surface in uninsured and underinsured motorist policies. Although this survey notes those contexts, its primary emphasis is liability insurance and it is not intended to be comprehensive. For related guidance, see Practice Note: US—punitive damages standards state law survey. State Insurability of punitive damages Alabama The Supreme Court of Alabama, without addressing public policy considerations, determined that punitive damages qualify as a liability imposed by law. Accordingly, they fell within the scope of an automobile policy's insuring...
ARCHIVED : This archived Practice Note relates to a statement by an auditor of an unquoted company ceasing to hold office in relation to financial years beginning before 1 October 2015; see also archived Practice Note: Audit authority and accounting authority notifications on an auditor ceasing to hold office—financial years beginning before 1 October 2015—unquoted company [ Archived]. On 1 October 2015, section 18 and Schedule 5 of the Deregulation Act 2015 ( DA 2015) took effect, introducing several auditor-related reforms, including rules on the notices and statements to be issued when an auditor leaves office. These rules apply to financial years commencing on or after 1 October 2015. For the notices and statements required on an auditor ceasing to hold office, DA 2015 amended the Companies Act 2006 ( CA 2006), substituting the earlier classification of quoted and unquoted companies with a...
This Practice Note examines the meaning of an unregistered company under section 1043 of the Companies Act 2006 ( CA 2006) and the Unregistered Companies Regulations 2009, SI 2009/2436, and sets out the principal characteristics of unregistered companies. The definition captures incorporated bodies that are not formed under the CA 2006 or any other public general Act of Parliament. It does not extend to unincorporated associations. What is an unregistered company? An unregistered company is an uncommon type of incorporated entity that is neither formed nor registered under the CA 2006 nor under any other public general Act of Parliament. It includes entities established by private Acts of Parliament (which differ from a public general Act) or by Royal Charter. Companies incorporated by Royal Charter account for by far the largest proportion of unregistered companies (see incorporated by Royal Charter...
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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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