Legal Practice Notes

This Practice Note examines the Terms of Reference ( TOR) under the 2021 International Chamber of Commerce ( ICC) Rules of Arbitration ( ICC Rules), as currently in force. The ICC Rules govern any ICC arbitration begun on or after 1 January 2021, unless the parties specifically agree that an older iteration of the ICC Rules will apply (eg in the arbitration clause itself). For links to further guidance on the 2017 and 2012 versions of the ICC Rules, see: ICC arbitration—overview. What are the Terms of Reference? The TOR are a document that distils essential details relevant to the ICC arbitration in question. Prepared by the arbitral tribunal in concert with all parties, they are produced within 30 days of the tribunal receiving the case file from the Secretariat. They set the course for the rest of the arbitration by outlining the merits of the dispute and...

This Practice Note on commencing a debt claim outlines the matters to consider both before and after issuing a straightforward contractual debt action, including the correct jurisdiction, limitation, alternative dispute resolution ( ADR) and insolvency options, pre-action obligations, assignment of debts, and when, where and how to issue and serve proceedings. For an explanation of what is meant by a ‘simple contractual debt claim’ in this context, see Practice Note: Debt claims. Further guidance on debt claims includes: Practice Note: Discharging a contractual debt Starting a contractual debt claim—checklist (covering, in summary, issues such as the nature of the claim, the contracting parties, the debtor’s assets, the debt’s value, and what the client aims to achieve through litigation, with links to related content) For broader guidance on starting claims, see: Starting a claim or...

CASE HUB ARCHIVED This archived case hub records the position as at the decision dated 17 December 2020 and is no longer updated. For more detail, see the timeline. Case facts Outline European Commission merger review of the proposed purchase by Google LLC of Fitbit Inc. ( M.9660). The deal gives rise to horizontal overlaps in markets for supplying online search and display advertising services and ‘ad tech’ services. Latest developments On 17 December 2020, the Commission cleared the deal subject to commitments. To remedy the Commission’s concerns, the package comprises behavioural and access measures that set limits on Google’s use of data gathered for advertising, protect interoperability between competing wearables and Android, and allow users, if they wish, to go on sharing health and fitness data. The commitments will apply for ten years, and the Commission may extend the...

Taking part in criminal hearings from a distance can be demanding and unfamiliar. Extended periods focused on a monitor or telephone require intense concentration, which is more exhausting than being in a courtroom with everyone present, and this can impair listening for many practitioners. This Practice Note offers corporate crime practitioners taking part in remote hearings via live link (audio or video link) in the criminal courts pragmatic guidance and information to assist preparation and delivery. It should be read alongside Practical tips for remote attendance at criminal hearings—checklist, which complements this guidance. Will my hearing go ahead remotely? Criminal courts in England and Wales may permit individuals to take part in hearings remotely through a live audio link or live video link, as appropriate. For details on when remote attendance might be authorised, and on the process for making, varying or revoking live link...

This Practice Note gathers archived news and updated documents from the International Swaps and Derivatives Association ( ISDA), covering January 2015 to December 2017. For ISDA developments from January 2018 onwards, see Practice Note: ISDA—latest news on documentation. All ISDA updates mentioned here were originally published on the ISDA website (subscription required for full access). Commentary and related documents are provided by Banking & Finance. 2017 Date of update/announcement from ISDA — ISDA news 15 December 2017 — ISDA webinar on systematic internaliser regime. Why? ISDA issued a webinar, ‘ Are you ready for the Systematic Internaliser Regime?’, examining issues connected to the MIFID II systematic internaliser regime. For more information on systematic internalisers, see Practice Note: Systematic internalisers. 8 December 2017 — Credit Derivatives Physical Settlement Matrix – 2014 and 2003 Confirmations. Why? ISDA published the: 2014...

This Practice Note should be read alongside Practice Note: Trustees and data protection—part one. It reviews the data protection framework under the Data Protection Act 2018 ( DPA 2018), the EU General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), which applied from 25 May 2018, and the UK-specific iteration of the EU GDPR that has applied in the UK from 11 pm on 31 December 2020 ( Retained Regulation ( EU) 2016/679, UK GDPR). It also addresses equivalent provisions (where relevant) from the former Data Protection Act 1998 ( DPA 1998) regime. For fuller guidance on DPA 2018, see the Data protection regime subtopic. Data Protection Act 2018 With effect from 25 May 2018, DPA 1998 was repealed and the UK data protection landscape is now consolidated within the GDPR ( EU and now UK) and DPA 2018. DPA 2018 is a...

MVL A members’ voluntary liquidation ( MVL) is widely used and highly adaptable, with the timing and approach initially shaped by the shareholders and, once a liquidator is appointed, thereafter directed by that office-holder. It can also operate as a practical instrument within a broader plan that brings a range of companies in the group into scope. The liquidator’s steps in settling the company’s affairs are intended to offer greater certainty for all stakeholders and deliver added safeguards for directors and shareholders alike. Although an MVL will generally be more expensive than dissolution or striking off, the advantages can outweigh and justify those additional costs......

Practice Note: Criminal offences under the Data Protection Act 2018 ( DPA 2018) This Practice Note outlines the criminal offences set out in the Data Protection Act 2018 ( DPA 2018). Those provisions took effect on 25 May 2018. For details of the DPA 2018’s aims and coverage, see Practice Note: The Data Protection Act 2018. The DPA 2018 repealed the Data Protection Act 1998 ( DPA 1998) on 25 May 2018. However, data protection offences committed before 25 May 2018 may still be pursued under the DPA 1998 notwithstanding its repeal. For guidance on data protection and data handling offences under the DPA 1998, see Practice Notes: Unlawfully obtaining data under the Data Protection Act 1998 [ Archived] and Notification offences under the Data Protection Act 1998 [ Archived]. The DPA 2018 was later amended by the Data Protection, Privacy and...

A data protection impact assessment ( DPIA) is exactly what it sounds like—an evaluation of how a particular project or process may affect data protection for impacted individuals. This Practice Note sets out: what a DPIA is whether DPIAs are mandatory, and if so who should carry out the assessment, and how It also covers how DPIAs relate to privacy impact assessments ( PIAs) and data protection by design and default ( DPb DD). Precedent: Data protection impact assessment— DPIA aligns with the UK GDPR. See also Precedent: Data protection impact assessment— DPIA—short form, based on an Information Commissioner’s Office ( ICO) template. ICO guidance on DPIAs is available in two places: Data protection impact assessments and Data Protection Impact Assessments ( DPIAs). What is a data protection impact assessment? A DPIA is a practical mechanism to help you: spot and reduce data...

This Practice Note explores the principal considerations when preparing a settlement agreement: correctly identifying the parties (including any relevant third parties), expressing obligations with clarity and sufficient compulsion (covering time is of the essence and endeavours provisions), drafting the release (the ‘full and final settlement’ estoppel), and incorporating appropriate boilerplate clauses and execution formalities. For guidance on making a settlement offer and deciding how to record it, see Practice Notes: Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) Settling disputes—how to document a settlement Settling at a mediation For Precedent draft settlement agreements, see: Draft Settlement agreement—pre-action settlement Draft Settlement agreement—for settling disputes post-commencement of proceedings For guidance on disputes arising from a settlement agreement, see Practice Note: Resolving disputes concerning settlement agreements. Key requirements—drafting the settlement contract As with any contract, attention should be given to these core...

What is a GTMA? Electricity in Great Britain ( GB) is exchanged via a bilateral marketplace. No fixed template is mandated for trades. Nevertheless, the Grid Trade Master Agreement ( GTMA) has become the recognised standard contract for power trading, and is extensively adopted by generators, suppliers and traders to record a bilateral deal for the sale and purchase of electricity. For broader background on the structure of the GB power market, see Practice Note: The Great Britain electricity market—an introduction. First issued in 2001 by the Futures and Options Association (now absorbed into the global Futures Industry Association ( FIA)), the GTMA was designed for use following the launch of the New Energy Trading Arrangements ( NETA) (which, in 2005, gave way to the British Electricity Trading and Transmission Arrangements ( BETTA)). The GTMA was updated in 2004, and the majority now...

The Practice Note sets out the law as it stood before 18 May 2021. It summarises the post‑ Brexit challenges for UK financial institutions that previously accessed EU markets through passporting rights. It also examines the UK’s position as a third country (a jurisdiction outside the European Economic Area ( EEA)), equivalence considerations, and the UK’s post‑ Brexit status for financial services firms. Brexit and financial services This note outlines the issues encountered by UK firms that formerly conducted business across the EU via passporting and the implications arising from the loss of those rights. This Practice Note sits within a suite of key notes on Brexit and financial services. Other guides include the following: Brexit— Financial Services—overview Brexit and financial services: materials on the post- Brexit UK/ EU regulatory regime [ Archived] Brexit—impact on financial services [ Archived] Brexit and...

The principle defined Company decisions are taken by shareholders through resolutions. A company’s resolution can be validly approved in three ways: by employing the statutory written resolution procedure (available only to private companies and subject to specified exceptions) (see Practice Note: Written resolutions for further details on this process) at a meeting of the company’s members, duly convened and conducted in accordance with the Companies Act 2006 ( CA 2006) or the company’s articles of association (see Practice Note: Member resolutions for further information) where applicable, under the Duomatic principle, described in Re Duomatic Ltd as: '...where it can be shown that all shareholders entitled to attend and vote at a general meeting agree to a matter that such a meeting could give effect to, that agreement is as binding as a resolution would generally be.' It has subsequently been restated as: ' The essence of the...

This Practice Note examines the statutory bars to extradition from the UK contained in section 11 of the Extradition Act 2003 ( EA 2003). There are numerous specific grounds that an individual may rely upon to resist extradition under EA 2003. Some of these grounds apply across both categories of request, while others are confined to EA 2003, Pt 1 or EA 2003, Pt 2 requests only. For an overview of the statutory scheme under EA 2003, see Practice Note: Extradition and the statutory framework—an introduction to extradition. For further guidance on the procedure applicable to EA 2003, Pt 1 and EA 2003, Pt 2, see Practice Note: Extradition under Parts 1 and 2 of the Extradition Act 2003—procedure. Statutory bars At the extradition hearing, the district judge will assess whether the request relates to an extradition offence and whether any of the statutory bars to...

Part 7 or Part 8? Before April 2007, the practice direction accompanying CPR 8 stated that if, prior to 26 April 1999, a High Court claim had been commenced by originating summons, it should thereafter be brought under the Part 8 procedure. As claims under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996) were issued by originating summons before 26 April 1999, it was long assumed that Part 8 was the appropriate route. The current practice direction to Part 8, however, now clearly sets out the categories of claim that may start under Part 8, and that list excludes TOLATA 1996 claims. Consequently, proceedings ought to be issued under Part 7 unless there is unlikely to be any significant factual dispute of substance, or a rule or practice direction requires or allows the use of Part 8. Where the...

Traffic Commissioners In England, Wales and Scotland, operator licences are granted by the Traffic Commissioners. They oversee licensing and regulation of heavy goods vehicles ( HGVs), light goods vehicles ( LGVs) and passenger service vehicles ( PSVs), and register local bus services. For a general outline of the operator licensing system, see Practice Note: Goods vehicle licensing. The Commissioners are independent statutory licensing authorities, and may act against the vocational entitlement of bus, coach and lorry drivers who commit road or related offences. They operate under the direction of the Secretary of State. Compliance with licence standards and road transport law is enforced by the Driver and Vehicle Standards Agency ( DVSA) and the police. For information on those bodies’ powers and an overview of enforcement, see Practice Note: Goods vehicles—enforcing transport compliance. Although, in some areas, the DVSA and the local Traffic...

Remedies for misuse of private information and breach of confidence This Practice Note concentrates on the relief available where private information has been misused—whether through an actual or threatened publication, or by the manner in which personal information was obtained—and for breaches of confidence involving the disclosure of personal information. The principal forms of relief are damages and injunctions. Because the law in this field embraces a broad spectrum of factual circumstances, courts take a supple, case-sensitive approach to remedies. Thus, in one set of facts, the most effective way to vindicate the claimant’s privacy may be an injunction restraining an anticipated disclosure; in another, the defendant may already have disclosed the material without authority and derived a commercial gain. In that scenario, suitable relief may include compensatory damages or an order for an account of profits, together with an injunction stopping any further...

This Practice Note offers an overview of enforcement in Jersey, spanning subjects such as inconsistent decisions, costs, currency, the enforcement pathway, limitation, injunctive measures, recognition of judgments, service, pitfalls and the varieties of enforceable order. Although it refers to decisions of the Jersey courts, these are not reported by Lexis Nexis®, and therefore links to the judgments are not provided. Judgments ( Reciprocal Enforcement) ( Jersey) Law 1960 — the 1960 Law Judgments ( Reciprocal Enforcement) Act 1973 — the 1973 Act Judgments ( Reciprocal Enforcement) Rules 1961 — the Rules Questions and answers 1. Treaties—is your country party to any bilateral or multilateral treaties for the reciprocal recognition and enforcement of foreign judgments? What is the country's approach to entering into these treaties and what, if any, amendments or reservations has your country made to such...

This Practice Note sets out what the Common Assessment Framework ( CAF) is and how it operates, co-ordinating voluntary support for children and their families across multiple services. It explains when a CAF is suitable and when more formal intervention is needed. What is a Common Assessment Framework ( CAF) and when is it used? A CAF is a shared assessment and planning framework used across all children’s services and in every local area in England. The aims and objectives of the CAF are to: help practitioners working with children, young people and families to identify and assess additional needs provide earlier, more effective help to prevent, where possible, formal intervention develop a common understanding of needs and how to work together to meet them A core aim is to recognise needs early and arrange multi-agency support to prevent matters reaching crisis point. This is...

Understanding the impact of a corporate transaction on the company's share incentives Where a company undergoes a corporate transaction, existing share incentive awards over its shares are frequently affected. Identifying the likely effect at the earliest planning stage is essential, as share incentive considerations can prove decisive for the proposed structure, mechanics and/or timetable, and may otherwise force later changes to the transaction solely to accommodate them. This is particularly relevant where: a substantial proportion of the share capital is covered by share awards key individuals, or a significant part of the workforce, hold such awards there is an employee benefit trust ( EBT) This Practice Note outlines the steps typically required on any transaction when addressing its share incentives elements (see: Steps which will normally need to be taken below)......