Legal Practice Notes

ARCHIVED: This Practice Note has been archived and is not maintained. Practice Note: Intra- EU investment disputes—an introduction This overview may interest practitioners. Investor reliance on intra- EU bilateral investment treaties ( BITs) has provoked substantial debate in recent years. That discussion reveals a tension between rights and protections derived from EU law and those contained in BITs concluded between Member States. This Practice Note sets out the key arbitration developments in this important sphere. A number of European institutions—most notably the European Commission and the European Court of Justice ( ECJ)—have maintained that intra- EU BITs are incompatible with EU law. Unsurprisingly, these concerns have received limited backing within the arbitration community so far. Nevertheless, following the Slovakia v Achmea decision (see below) and the declarations issued by all EU Member States in January 2019 to bring intra- EU BITs to an end (see...

Intoxication General defences arise from features specific to the accused or from the circumstances of the offence, and may prevent the prosecution from proving all the elements of the offence. The investigating officer must pursue enquiries impartially and fairly, so material that supports a potential defence should be collected and retained in the same manner as evidence of the offence. While some offences carry particular statutory defences, the availability of general defences ought to be assessed in every case. Strictly speaking, intoxication, whether voluntary or involuntary, is not a defence in and of itself. Rather, intoxication may negate the required mental element (mens rea) for an offence and thereby operate as a defence, but only in limited situations. Specific intent Where an offence calls for specific criminal intent, voluntary intoxication may suffice to demonstrate that the defendant could not form the requisite intent to commit the...

ARCHIVED: This Practice Note is archived and is no longer maintained The offence of the sale of intoxicating substances and butane cigarette lighter refills to persons aged under 18 Section 1(1) of the Intoxicating Substances ( Supply) Act 1985 makes it an offence to supply, or offer to supply, any substance other than a controlled drug—“controlled drug” having the same meaning as in the Misuse of Drugs Act 1971—where the supplier knows, or has reasonable cause to believe, that the substance or its fumes are likely to be inhaled by a person under 18 to cause intoxication. Supplying directly to someone under eighteen whom the supplier knows, or has reasonable grounds to believe, is under that age; or Supplying to a person known, or reasonably believed, to be acting on behalf of someone under eighteen. The Cigarette Lighter Refill ( Safety)...

Authorising and ordering intimate searches An intimate search means a physical examination of any of a suspect’s bodily orifices except the mouth. It is an invasive procedure, not merely a visual check. Only an arrested person held in police detention may be subjected to an intimate search. PACE 1984 Code C is engaged. Such a search may be authorised solely by an officer of inspector rank or above who has reasonable grounds to believe that: a detainee has secreted on their person: something capable of causing physical injury to themselves or others, and they might injure themselves or others whilst in police detention or court custody, or a detainee: may have Class A drugs...

The intestacy rules Where a person dies wholly or partly intestate—because no valid Will exists or some part is invalid or ineffective— Parts III and IV of the Administration of Estates Act 1925 ( AEA 1925) apply to: all the deceased’s movable property, wherever it is situated, provided the intestate was domiciled in England and Wales; and all the deceased’s immovable property in England or Wales, whatever their domicile Enquiries about a Will A thorough search should be carried out to determine whether the deceased left a Will. If none is found, enquiries should be made of the deceased’s next of kin and any known advisers instructed during their lifetime regarding estate planning, to establish whether a Will was made and has been lost. See Practice Note: Obtaining the Will. Reasons for total intestacy There is no statutory definition of intestacy. A total intestacy arises where none of the...

Intestacy—priority to apply for grant— Q& As For an overview of the intestacy regime, consult Practice Note: Intestacy—summary. Guidance on those entitled to inherit on an intestacy appears in Practice Note: Intestacy—beneficial entitlement. See also Flowchart: Entitlement on intestacy—flowchart and Practice Note: Intestacy—beneficial entitlement— Q& As. This Practice Note identifies who has precedence to seek a grant of letters of administration for an intestate person’s estate in particular situations, as addressed in our Q& As. Where a Will exists but no executor is willing or able to act, details of who may apply for a grant of letters of administration with Will annexed, and the order of priority, are set out in NCPR 1987, SI 1987/2024, r 20. See also Practice Notes: Administration with Will annexed—priority to apply for grant— Q& As and The type of grant...

Intestacy—beneficial entitlement— Q& As Practice Note: Intestacy—summary offers guidance on entitlement to inherit on an intestacy, together with the order of priority to apply for a grant of letters of administration. For further detail on who is beneficially entitled on an intestacy, see Practice Note: Intestacy—beneficial entitlement. See also Flowchart: Entitlement on intestacy—flowchart. This Practice Note examines a range of intestacy situations addressed in our Q& As. Intestacy where there is a surviving spouse or civil partner Practice Note: Intestacy—beneficial entitlement identifies the principal issues to consider where the deceased has died wholly intestate. Regarding the position of the surviving spouse, see section: Intestacy—beneficial entitlement— Spouse or civil partner. If the deceased left no issue, the spouse takes the whole estate. If the deceased left issue, the spouse takes any personal chattels, the statutory legacy (£322,000) and one-half of the residue outright. The remaining half of the...

There are three main principles of statutory interpretation relevant to the protection of human rights in the UK: a statutory obligation in section 3 of the Human Rights Act 1998 ( HRA 1998) to construe legislation, so far as possible, in a manner consistent with Convention rights the presumption that Parliament does not, absent clear wording, curtail fundamental rights — the interpretative ‘principle of legality’ the presumption that Parliament does not intend to enact measures contrary to the United Kingdom's international duties, including under international human rights instruments — the presumption of compatibility Before the UK left the EU, further presumptions guided the reading of statutes in line with UK obligations stemming from EU law. Although the UK is no longer an EU member, such presumptions may still matter for questions of assimilated law (or issues of retained EU law as it operated in the 2021–23...

The general principles In an ideal scenario, the wording and provisions of contracts, deeds and other documents would be free of ambiguity, preventing misunderstanding when construing them; yet, in reality, and in practice, that is not invariably so. Consequently, the courts have fashioned methods or principles for construction and interpretation, including the interpretation of scheme deeds and rules in the pensions context. The principles governing the construction of documents are now well settled and uncontroversial. The courts’ objective is to construe documents by ‘common sense’ standards; they ultimately consider the ordinary and natural meaning of the language employed. These principles have been refined, built upon and expanded through a number of significant House of Lords and Supreme Court decisions. Judicial reasoning has built upon these foundations......

In disputes concerning how documents are to be read, including a claim about construing a Will, the court’s task is to identify the sense a Will would communicate to a reasonable reader equipped with all background knowledge reasonably available to the testator when the Will was made, as explained by Lord Hoffman in the Investors’ Compensation Scheme Ltd case. For a summary of the courts’ overall approach to construction disputes, see Practice Note: Will interpretation—principles of construction. This Practice Note centres on the construction of nil rate band ( NRB) legacies in Wills and, in particular, the manner in which the courts will determine the value of assets passing to the legatee(s), which assets pass to the legatee, and how the residue of the estate is therefore constituted. The Practice Note also reviews precedent wording for NRB legacies and practical points that may arise...

What doe this Practice Note cover? This Practice Note sets out guidance on how to use and read the opinions that evaluate the enforceability of close-out netting under the ISDA Master Agreement in multiple jurisdictions. It also explains how to assess whether a particular opinion can be relied upon for a given purpose, highlights the key legal assumptions and exclusions, and considers matters specific to individual jurisdictions, including insolvency regimes, multi-branch party elections and termination currencies. Background to ISDA The International Swaps and Derivatives Association ( ISDA) represents over 850 member institutions in 67 countries, including banks, brokers, law firms and national bodies. Established in 1985, it acts as a trade body to promote a safe and efficient over-the-counter ( OTC) derivatives market. ISDA operates in many OTC derivatives markets, including credit, equity, interest rate and energy derivatives. It has produced and maintained the ISDA Master...

Reading a request objectively Where a request made under the Freedom of Information Act 2000 ( FIA 2000) is expressed plainly and without ambiguity, the receiving public authority has 20 days to supply the information sought. As a rule, there is no duty to hunt for alternative constructions of a straightforward request, or to consider material that falls outside its scope (see Adedeji v Information Commissioner). However, if the wording is unclear, for example: more than one meaning can reasonably be taken, or on reviewing any context provided, the wording proves ambiguous FIA 2000 gives a public authority a means to seek clarification so it can identify and locate the information requested. In reading a request objectively, an authority should be careful to: avoid overlooking ambiguity: in Berend v...

This Practice Note sets the scene from an advertising and marketing perspective, rather than a purely legal one, for drafting consumer standard terms and conditions under the Consumer Rights Act 2015 in the context of non-broadcast advertising. It reviews the marketing framework within which those terms function and highlights how lawyers can enhance them. For further reading, see: Advertising law and regulation—overview. Our suite of business-to-consumer ( B2C) contract templates and drafting guidance, including ‘ Drafting contracts with consumers’ in Trading with consumers—overview and Drafting consumer contracts—checklist. Guidance on boilerplate provisions in B2C contracts: Practice Notes— Boilerplate clauses in business-to-consumer contracts—general principles and Boilerplate clauses in business-to-consumer contracts—specific clauses. Advertising regulation The primary regulator for non-broadcast advertising is the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code), devised, updated and enforced by the Committee of...

The Internet of Things ( Io T) The Internet of Things ( Io T) describes everyday items—beyond laptops and smartphones—connected to the internet. Related terms include connected devices, smart objects, the internet of services, machine-to-machine ( M2M), sensor networks, the network of networks, and pervasive or ubiquitous computing. Io T applies to running shoes, buildings, cars, fridge-freezers and drones. With embedded technology, such items exchange data and interact online with each other, the user, the service provider and/or their environment, and can be monitored and controlled remotely. This Practice Note introduces Io T and considers: the technology underlying the Io T identifying the legal issues application programming interfaces ( APIs) telecommunications and electrical equipment intellectual property—overview, ownership and licensing competition law consumer protection liability and fault compliance requirements the appropriate contracting model future legal issues This Practice Note does not cover data protection, privacy or cybersecurity; these are addressed separately in Practice Note: Internet of......

Across numerous legal systems, there are few material distinctions between international and purely domestic arbitration proceedings overall. This Practice Note pinpoints circumstances where divergences can occur and evaluates how these variations may affect the arbitral process in practice. You might also wish to consult Practice Notes: Arbitration—an overview of arbitration’s key characteristics, Institutional arbitration—an overview of the principal features of institutional arbitration, Ad hoc arbitration—an overview of the principal features of ad hoc arbitration, and International arbitration—an overview of the principal features of international arbitration for reference. What makes an arbitration domestic or international? A domestic arbitration deals solely with national matters and domestic concerns alone. Broadly, every element of the proceedings connects to one jurisdiction and stays within that legal system at all. For instance, the parties’ nationalities, the contract’s governing law, the location for performance of the contract, and the factual...

This new starter guide serves as an entry point to International Trade for trainee solicitors and individuals new to the area. It outlines the practice area, introduces core themes and principles, and signposts further Lexis+® UK sources and materials... an introduction to international trade key topics in international trade further reading materials key external links The guide is designed to help you make the most of the Lexis+® UK International Trade materials by showing you how to locate them and how to subscribe to email alerts. If something is not covered in this basic guide, use the Topics tab or the Topics dropdown to explore additional practice area content. To view new starter guides for other practice areas, see Practice Note: New starter collection... An introduction to international trade International trade relates to the international legal framework that governs commerce between...

Brexit: On 31 January 2020, the UK ceased to be an EU Member State and entered an implementation phase, during which it remained subject to EU law. Throughout that period, the GDPR applies in the UK and, for the purposes of EEA and UK data protection rules, the UK is broadly regarded as an EU (and EEA) state. Consequently, any references to EEA or EU states in this Practice Note should be interpreted as also including the UK until the end of the implementation phase. For additional guidance on that phase, its length and the data protection regime expected to follow it, see Practice Note: Brexit—implications for data protection [ Archived]. ARCHIVED: This Practice Note is archived material and reflects the position before the General Data Protection Regulation became applicable. It is provided for background purposes only and is not...

This Practice Note sets out the restriction in Chapter V of the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), and Chapter V of the EU General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), concerning the movement of personal data beyond the UK or the EEA or to international organisations. ‘ Assimilated law’ is the term applied to retained EU law ( REUL) that continues to have effect after the close of 2023. Re-labelling REUL (and related expressions) as assimilated law signals a shift in its standing and handling under UK law, meaning it is, in general, to be read in line with ordinary domestic rules and principles. From 1 January 2024, REUL is treated as ‘assimilated’ within domestic law because, in broad terms, it is divested of EU-derived...

Pension entitlements can be moved from one scheme to a different one. To prevent unfavourable tax outcomes under the Finance Act 2004 ( FA 2004), any movement from a UK-registered pension scheme must be a ‘recognised transfer’, which FA 2004, s 164(1)(c) explicitly treats as an authorised member payment. This Practice Note addresses the points to consider for: the sole recognised transfer permitted from a UK-registered pension scheme to an overseas arrangement (that is, a transfer to a Qualifying Recognised Overseas Pension Scheme ( QROPS))—for more detail, see: Transfer to a QROPS, below moves from a UK-registered pension scheme to overseas arrangements that are not a QROPS—for more detail, see: Transfer to an overseas pension scheme other than a QROPS, below transfers from overseas arrangements into a UK-registered pension scheme—for more detail, see: Transfers from overseas pension...

International Organisation of Securities Commissions The International Organisation of Securities Commissions ( IOSCO) was formed in 1983 following a resolution by a group of securities regulators from North and South America. Its reach broadened rapidly in 1984, with UK regulators among the earliest non‑ American participants. Today, its members oversee more than 130 jurisdictions, accounting for over 95% of the world’s securities markets... IOSCO sets global benchmarks for securities markets and serves as the principal forum for co‑operation among market regulators. Beyond standard‑setting, it delivers technical assistance, particularly to regulatory authorities in emerging securities markets. It has introduced key measures that underpin cross‑border co‑operation, curb global systemic risk, protect investors, and support fair, efficient markets. These include: a methodology that articulates IOSCO’s interpretation of its Objectives and Principles of Securities Regulation (the IOSCO Principles) a multilateral memorandum of...