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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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From 31 January 2020 (exit day), the UK left EU membership and ceased to take part in the EU’s political bodies and governance frameworks. Nonetheless, under the transitional measures in Part 4 of the Withdrawal Agreement, exit day began an implementation period ( IP), running until 11pm on 31 December 2020 ( IP completion day). See Practice Note: Brexit—introduction to the Withdrawal Agreement. The European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020) gave domestic legal effect to the Withdrawal Agreement and contains various interpretative and consequential provisions. For those assessing Brexit’s effect on family law, these terms are key: exit day—31 January 2020 implementation period ( IP)—from 11pm on 31 January 2020 until 11pm on 31 December 2020 IP completion day—11pm 31 December 2020, which for many purposes replaced exit day across EU( WA) A 2020 and...
ARCHIVED: This document is archived and is no longer being maintained. During the transition phase, the core EU rules essentially continued to apply to structured products and securitisation practitioners (see Practice Note: Brexit—impact on finance transactions [ Archived]). From IP completion day, however, the landscape changes markedly. This Practice Note sets out a high-level overview of the practical implications of IP completion day for structured products and securitisation lawyers and signposts further detailed materials. For the effect on DCM aspects of structured products and securitisations, see Practice Note: What does IP completion day mean for DCM lawyers? [ Archived]. For the effect on derivatives aspects of structured products and securitisations, see Practice Note: What does IP completion day mean for derivatives lawyers? [...
ARCHIVED: This Practice Note is archived and is not maintained, and will not receive further updates. It outlines the consequences of IP completion day for breaches of contract and the remedies available. The implementation period created to allow the UK to move away from the EU’s laws and institutions ended at 11 pm ( GMT) on 31 December 2020. At that moment (called ‘ IP completion day’ in this Practice Note) immediate changes arose that affect contracts within the UK. This Practice Note sets out how those changes relate to breach and remedies and signposts to more detailed content and analysis where you can learn more. How does Brexit impact contract breach and remedies? The rules on making and construing contracts in England and Wales are predominantly grounded in, and developed by, the common law, which was not directly altered by IP...
At 11 pm ( GMT) on 31 December 2020, the implementation period created to help the UK move away from the EU’s laws and institutions came to a close. That moment (described in this Practice Note as ‘ IP completion day’) brought an immediate and notable shift in the UK’s legal framework. This Practice Note sets out what that change means for construction law and the construction sector. Overview—what happened on 31 December 2020 On 31 January 2020 (‘exit day’), the UK stopped being an EU Member State and lost the right to participate in the EU’s political institutions and governance structures. Under the transitional provisions in Part 4 of the Withdrawal Agreement, exit day began an 11-month implementation period during which, for many purposes, the EU continued to treat the UK as if it were still a Member State. That period continued until 11 pm on 31...
ARCHIVED : This Practice Note has been archived and is not maintained. During the Brexit implementation phase, which continued until 11pm UK time on 31 December 2020 ( IP completion day), the principal EU regulations effectively still applied to corporate lawyers (see Practice Note: The effect of Brexit on UK company law [ Archived]); however, from IP completion day, aspects of this position were adjusted. Several prospective alterations to UK corporate law identified before IP completion day were expected to occur if the UK and the EU had not, by then, secured a ratified agreement governing their future relationship. The EU– UK Trade and Cooperation Agreement ( TCA)—the post‑ Brexit trade accord between the UK and the EU—was concluded only a few days ahead of IP completion day. Following the TCA’s agreement, the European Union ( Future Relationship) Bill was brought before...
ARCHIVED : This archived Practice Note summarises the Directive on the activities and supervision of Institutions for Retirement Provision ( IORPs), commonly called the IORP II Directive or simply IORP II. It is no longer being updated. Under EU law, IORP denotes pension schemes. IORP II superseded the 2003 IORP Directive 2003/41/ EC, which has been repealed. It entered EU law in December 2016 and took effect in the UK on 13 January 2019. Although IORP II has been transposed into UK domestic law, the directive itself does not sit within domestic law (including as assimilated law)... Purpose of IORP II The now-repealed 2003 IORP Directive was agreed in June 2003 and then implemented by each EU Member State. Its aim was to create an EU-wide framework for running pension schemes, imposing mandatory standards in core areas such as funding of defined benefit ( DB)...
—introduction Manslaughter is divided into two categories: voluntary and involuntary. Voluntary manslaughter covers killings that would otherwise amount to murder—because the accused has the relevant mental element—yet liability is reduced to manslaughter owing to one of three special defences. Involuntary manslaughter refers to forms of the offence that can be charged on their own where the accused does not have the mental element for murder, that is, the intention to kill or to cause grievous bodily harm ( GBH); it can likewise follow an indictment for murder where the prosecution fail to prove the mental element. See: R v Taylor (1834) 2 Lew CC 215 (not reported by Lexis Nexis®). For further information on voluntary manslaughter and murder, see Practice Notes: Voluntary manslaughter and Murder......
Under bilateral investment treaties ( BITs) and other investment protection treaties such as multilateral investment treaties ( MITs), host states generally commit to provide baseline standards of protection and treatment to foreign investors. These baseline standards can range from an undertaking not to discriminate against foreign investors in favour of domestic companies, through to a commitment not to nationalise or expropriate an investment without the payment of adequate compensation. Among other reasons, appreciating the nature and extent of these safeguards is important for advising on related disputes. This Practice Note summarises the forms of protection typically available under BITs and MITs, including: fair and equitable treatment ( FET) of investors (sometimes referred to as the FET standard) full protection and security of investments 'national treatment' of investors 'most favoured nation' ( MFN) treatment of investors, and ...
Investment-regulated pension schemes ( IRPSs) Investment-regulated pension schemes ( IRPSs) are a distinct class of registered pension schemes that face extra controls over the asset types permitted as investments. They were established as a separate form of registered pension scheme by the Finance Act 2004 ( FA 2004), then adjusted ahead of 6 April 2006 by the Finance Act 2006, as set out by the Chancellor in the Autumn Statement on 5 December 2005. An IRPS may take the form of either an occupational or a personal pension scheme, with the main types generally treated as IRPSs commonly described as: small self-administered schemes ( SSASs) (a form of occupational pension scheme), and self-invested personal pensions ( SIPPs) (through which a member can exercise almost complete control over investment choices) Unless transitional protection applies (see below), from 6 April 2006 IRPSs have been...
This Practice Note offers an overview of investment treaty arbitration. In essence, investment treaty arbitration concerns resolving, usually, a foreign investor’s claim against a respondent state, alleging violations of investor safeguards set out in an investment treaty concluded between two states or a bloc of states, under an arbitration agreement embedded in the treaty’s investor–state dispute settlement clauses. Such claims are brought pursuant to the arbitration agreement set within the treaty’s investor–state dispute settlement provisions. ' Investment treaty arbitration' is often contrasted with 'international commercial arbitration'; both are frequently grouped under 'international arbitration'. See Practice Note: International arbitration—an introduction to the key features of international arbitration, for discussion of the term 'international commercial arbitration'. Investment treaties Bilateral investment treaties ( BITs) and multilateral investment treaties ( MITs) are central to any consideration of investment treaty...
This Practice Note monitors significant awards and rulings delivered by tribunals in investment treaty arbitration, chiefly those run by the International Centre for the Settlement of Investment Disputes ( ICSID). It also encompasses pertinent awards and decisions arising under the United Nations Commission on International Trade Law ( UNCITRAL) Arbitration Rules and proceedings overseen by other institutions, including the Arbitration Institute of the Stockholm Chamber of Commerce ( SCC), the Permanent Court of Arbitration ( PCA) and the International Court of Arbitration of the International Chamber of Commerce ( ICC). Determinations of ad hoc Committees in ICSID annulment cases are captured as well. Although investment treaty arbitration has no recognised doctrine of precedent, parties often rely on earlier decisions during their cases and tribunals frequently reference them in their reasoning. This Practice Note is confined to awards and decisions published in 2022, though in some...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note charts the details of significant awards and determinations issued by tribunals in investment treaty arbitration, predominantly those overseen by the International Centre for the Settlement of Investment Disputes ( ICSID). It additionally includes pertinent awards and decisions arising from proceedings under the United Nations Commission on International Trade Law ( UNCITRAL) Arbitration Rules and from cases administered by other arbitral bodies, including the Arbitration Institute of the Stockholm Chamber of Commerce ( SCC), the Permanent Court of Arbitration ( PCA) and the International Court of Arbitration of the International Chamber of Commerce ( ICC). Decisions by ad hoc Committees in ICSID annulment proceedings are likewise comprehensively captured. Although investment treaty arbitration lacks a recognised system of precedent, earlier decisions are frequently relied upon by parties during cases and are taken into...
ARCHIVED : This Practice Note has been archived and is not maintained. This year’s annual overview surveys standout investment treaty arbitration milestones from 2017 and signals what to expect in 2018, setting out what is on the horizon for that year. It covers notable awards in the International Centre for Settlement of Investment Disputes ( ICSID) and other investment treaty arbitration proceedings, the publication of bespoke investment arbitration rules by leading institutions, and wider shifts affecting investor–state dispute settlement. Also included are updates on Lexis Nexis®’s content, with news of exciting developments from the past year and what is coming up in the next 12 months. Reviewing 2017 ICSID arbitration — What happened? In October 2016, the ICSID revealed that a project had started to revise and modernise the Centre’s rules and regulations. ICSID sought input, comments and suggestions from ICSID Contracting States and, in...
This Practice Note focuses on the substantive protections afforded by the Energy Charter Treaty ( ECT). It does not address who qualifies as an investor or investment, denial of benefits, or the ECT’s dispute settlement procedures and architecture (including arbitration). For further information on those topics, see Practice Note: Investment treaty arbitration under the Energy Charter Treaty. The expressions investor, investment and Contracting Party are used here as defined in that Practice Note. Part III of the ECT sets out a suite of provisions conferring a robust level of protection on foreign investments made within the territories of host states that are Contracting Parties to the ECT. Among the most significant clauses in Part III are Articles 10 and 13. In December 2024, the Energy Charter Conference adopted a ‘ Modernised ECT’, which adjusts the substantive standards and tightens the scope of...
ARCHIVED: This Practice Note is archived and no longer maintained. Investment contracts An investment contract is an early variant of a contract for difference ( Cf D), established under the Energy Act 2013 ( EA 2013) as a stopgap to prevent a pause in investment while the Cf D scheme was being completed, and before the broader Cf D programme arrangements had been finalised. These arrangements mirror Cf Ds by paying the generating party to the agreement the gap between the ‘strike price’ and the ‘reference price’. The ‘strike price’ represents the electricity price that reflects the cost of deploying a specific low carbon technology, whereas the ‘reference price’ captures the average market price for electricity in the market. In effect, the instrument hedges against wholesale electricity price swings, providing long-term price certainty and stabilisation for low carbon plant, and thereby helping projects proceed with...
Why these Regulations were introduced The 2007 financial crisis, exemplified by the collapse of Lehman Brothers in September 2008, revealed the profound economic consequences that can arise when major financial institutions fail. In consequence, the Investment Bank Special Administration Regulations 2011 (the Regulations), SI 2011/245, were brought into force on 8 February 2011 under powers in the Banking Act 2009 ( BA 2009). The Investment Bank Special Administration ( England and Wales) Rules 2011 (the Rules), SI 2011/1301, then commenced on 30 June 2011. Following the Bloxham review (see below) and a 2016 consultation, HM Treasury introduced the Investment Bank ( Amendment of Definition) and Special Administration ( Amendment) Regulations 2017, SI 2017/443, effective from 6 April 2017, updating the Regulations facilitate an administrator’s ability to transfer client assets reinforce the bar date mechanism confirm that client money claimants are not...
This Practice Note offers practical guidance on investment and the World Trade Organisation ( WTO). It outlines the three strands addressing investment within the WTO: the Agreement on Trade-related Investment Measures ( TRIMs), the Working Group on the Relationship between Trade and Investment, and the General Agreement on Trade in Services ( GATS). Introduction The WTO does not yet address trade and investment comprehensively. Rather, three current avenues cover this field at the WTO. First, the WTO’s TRIMs was negotiated during the Uruguay Round of negotiation and entered into force when the WTO was created. For practical guidance on the Uruguay Round and how the WTO was set up, see Practice Note: An introduction to Trade in Goods. Second, the Working Group on the Relationship between Trade and Investment was formed after the WTO’s establishment, at the 1996 Ministerial Conference in Singapore, following the...
Addressing economic and financial crime Addressing economic and financial crime is a principal concern for governments, policing bodies and prosecutors throughout the United Kingdom. In Scotland, responsibility for policing in this sphere is devolved, with agencies distinct from those operating elsewhere in the UK. Scotland’s legal system is autonomous, and includes certain unique offences relating to economic and financial wrongdoing. This note outlines the law enforcement and prosecutorial bodies active in this field, and considers how they collaborate with one another and with equivalent institutions elsewhere in the UK. For general guidance on the investigation and reporting of alleged crimes for prosecution in Scotland, see Practice Note: The investigation and prosecution of criminal offences in Scotland. For guidance on the investigation and prosecution of criminal fraud in Scotland, see Practice Note: Comparison of criminal fraud in Scotland with England and Wales. For guidance on...
Development documentation is a central element of any real estate finance transaction that involves the development of property. For further information, see Practice Note: Real estate development finance—introduction to the development documentation. The scope and content of the development documentation are dictated by the procurement route selected for the scheme. Here, procurement refers to purchasing services for the development works. This Practice Note sets out the key characteristics of the most common procurement approaches for developing a property: design and build procurement traditional procurement management contracting Lenders generally favour the design and build route as it provides the greatest degree of cost certainty and is the most widely adopted procurement method in the UK. By contrast, management contracting carries the highest cost exposure, is typically disliked by lenders, and is used less frequently than the other methods within the UK...
This Practice Note sets out what the SRA Code of Conduct for Solicitors, RELs, RFLs and RSLs ( SRA Code for Individuals) and the SRA Code of Conduct for Firms ( SRA Code for Firms) require when making introductions to third parties. A distinct Practice Note applies where third parties send clients to you—see: Referral and fee sharing arrangements for further detail on referrals. It does not address scenarios where you merely instruct a third party for your client as part of their matter. See section, Difference between introducing and instructing a third party, and the separate Practice Note: Instructing third parties. Where appropriate, firms should also consider duties under the SRA Financial Services ( Scope) Rules and SRA Financial Services ( Conduct of Business) Rules concerning consumer credit or insurance distribution work and related activity. See the Practice Notes below: Insurance...
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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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