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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 has been archived and is not maintained. STOP PRESS: This Practice Note is under review in light of the judgment in Xiamen Xinjingdi Group Co Ltd v Eton Properties Limited and Others [2020] HKCFA 32 and the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region. The recognition and enforcement of Mainland awards A party that succeeds in a Mainland China arbitration (as defined below) may pursue enforcement of the award in Hong Kong by either of the following routes: under the common law, by issuing proceedings grounded on an implied undertaking to honour the award (often described as an ‘action on the award’), or under statute, by utilising the summary mechanism set out in the Hong Kong Arbitration Ordinance, Chapter 609 ( Cap 609) ( AO) Common law actions on Mainland awards in Hong...
ARCHIVED This Practice Note has been archived and is no longer maintained. It addresses the potential bases for refusing recognition and enforcement of New York Convention arbitral awards under Hong Kong law. It should be read alongside Practice Note: Hong Kong—enforcement— New York Convention arbitration awards—procedure, together with the other ‘ Related documents’... Refusal of enforcement of a New York Convention awards in Hong Kong Enforcement of an award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) may only be declined in the specific circumstances set out in section 89(2) of the Arbitration Ordinance, Chapter 609 ( AO). The onus of proving any ground for non-enforcement rests with the defendant. These grounds are exhaustive, yet the court retains a residual discretion to permit enforcement even where a ground is established. There is a strong...
The court may, under the Arbitration Ordinance ( Cap 609) ( AO), order a variety of interim relief to support arbitration proceedings. These measures are chiefly intended to ensure the arbitral process is respected, prevent any award from being frustrated, regulate the behaviour of the parties, and preserve assets or evidence. It should also be noted that the arbitral tribunal has corresponding powers to grant interim measures under AO, s 35. Note: Hong Kong judgments below are not reported by Lexis Nexis®. Power of the court to stay court proceedings in favour of arbitration Under AO, s 20, the court may stay proceedings and refer the parties to arbitration on a party’s request where the action is the subject of an arbitration agreement, unless the arbitration agreement is invalid, inoperative or incapable of being performed. In Hong Kong, the courts...
ARCHIVED: This Practice Note is archived and no longer maintained. It was originally prepared for Lexis Advance® Practical Guidance Hong Kong. Nature Intellectual property ( IP) rights are acknowledged as private entitlements that engage elements of public interest as well. Copyright protection operates by forbidding unauthorised exploitation of copyright works without the owner’s permission; accordingly, copyright is an IP right that subsists in creative works, as set out in section 2 of the Copyrights Ordinance ( Cap 528) ( CO), including the following: original literary, dramatic, musical or artistic works sound recordings, films, broadcasts or cable programmes, and the typographical arrangement of published editions Distinct incarnations of a work can attract separate copyrights, for example the book and the theatrical versions of a play. The period of protection and the acts restricted by copyright may differ according to the particular type of work....
Hong Kong Airlines Ltd sought approval of a Part 26A restructuring plan ( RP) at a December 2022 sanction hearing. The principal highlights are set out below (capitalised expressions not otherwise explained adopt the meanings in the sanction judgment). This Deal Debrief sits within our Restructuring plans collection. For comprehensive insights into metrics from the RPs lodged in 2023, together with commentary from prominent figures in the restructuring community, refer to Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company Hong Kong Airlines Ltd (the Company) Industry sector Airlines Place of debtor’s incorporation and jurisdictional factors Hong Kong. COMI is in Hong Kong, yet the Company is registered as an overseas company in England, and the underlying debt was mostly governed by English law (see below)......
This Practice Note introduces the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2024 (the 2024 HKIAC Rules; HKIAC 2024). As outlined below, the 2024 HKIAC Rules generally apply to HKIAC arbitrations commenced on or after 1 June 2024, unless the parties agree otherwise. For an introduction to the HKIAC and its structure, see Practice Note: HKIAC—background to and structure of the institution. The HKIAC Administered Arbitration Rules 2024—scope of application ( HKIAC 2024, art 1) Unless the parties agree to the contrary, the 2024 HKIAC Rules apply to any arbitration in which the Notice of Arbitration is filed on or after 1 June 2024 where an arbitration agreement (concluded either before or after a dispute has arisen): provides that the 2024 HKIAC Rules apply, or calls for arbitration administered by HKIAC, or words to similar effect ( HKIAC 2024, arts 1.4 and...
This Practice Note explains the arbitral tribunal’s authority under the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2018 (the 2018 HKIAC Rules; HKIAC 2018). As outlined in Practice Note: HKIAC (2018)—the HKIAC Administered Arbitration Rules—application and key features, the 2018 HKIAC Rules generally govern HKIAC arbitrations commenced on or after 1 November 2018, unless the parties agree otherwise; for HKIAC arbitrations initiated before 1 November 2018, the 2013 HKIAC Rules will ordinarily apply, unless the parties agreed otherwise. For an introduction to the HKIAC and its framework, see Practice Note: HKIAC—background to and structure of the institution. For guidance on constituting the tribunal, see Practice Note: HKIAC (2018)—appointment and composition of the tribunal. Powers conferred by the 2018 HKIAC Rules Jurisdiction of the tribunal A tribunal constituted under the 2018 HKIAC Rules is empowered to decide upon its own...
This Practice Note offers guidance on the emergency arbitrator mechanism set out in Schedule 4 of the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2018 (the 2018 HKIAC Rules; HKIAC 2018). As noted in Practice Note: HKIAC (2018)—the HKIAC Administered Arbitration Rules—application and key features, the 2018 HKIAC Rules generally govern HKIAC arbitrations begun on or after 1 November 2018, unless the parties agree otherwise; for proceedings commenced before 1 November 2018, the 2013 HKIAC Rules ordinarily apply, save where the parties have agreed to the contrary. See below for further guidance on potential limits affecting the use of the emergency arbitrator procedures. For an overview of the HKIAC and its framework, see Practice Note: HKIAC—background to and structure of the institution. The emergency arbitrator procedures under the 2018 HKIAC Rules Under the 2018 HKIAC Rules, parties may seek urgent interim or...
This Practice Note sets out guidance on the arbitral tribunal’s powers under the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2024 (the 2024 HKIAC Rules; HKIAC 2024). As explained in Practice Note: HKIAC (2024)—the HKIAC Administered Arbitration Rules—application and key features, the 2024 HKIAC Rules generally govern HKIAC arbitrations begun on or after 1 June 2024, unless the parties agree otherwise; for proceedings started before 1 June 2024, the 2018 HKIAC Rules ordinarily apply, subject to any different party agreement. For an overview of the HKIAC and its framework, see Practice Note: HKIAC—background to and structure of the institution. For guidance on constituting the tribunal, see Practice Note: HKIAC (2024)—appointment and composition of the tribunal. Powers conferred by the 2024 HKIAC Rules Jurisdiction of the tribunal A tribunal constituted under the 2024 HKIAC Rules may decide on its own...
These training resources comprise sample Power Point slides and companion notes for trainers delivering an introduction to the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), commonly called the ‘ Construction Act’, for trainee solicitors and anyone new to construction. Topics include when the HGCRA 1996 applies, which construction contracts are excluded, the Scheme for Construction Contracts, payment under the HGCRA 1996, and adjudication under the HGCRA 1996. The materials are supplied in Power Point and Word formats and are fully customisable. Click the link below to download the presentation: Contents What is the HGCRA 1996 and when does it apply? HGCRA 1996 key dates When does the HGCRA 1996 apply? Exclusions The Scheme for...
FORTHCOMING CHANGE: Following the Government’s reply to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill secured Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 ( PAA 2023). Once commenced, PAA 2023 will introduce amendments to the Mental Capacity Act 2005 ( MCA 2005) to deliver a more up-to-date lasting power of attorney ( LPA) service. The updates will include: Setting regulations so that those creating an LPA can choose to sign the document digitally or with a paper signature; Ending attorneys’ ability to register an LPA, meaning only the donor will be allowed to complete registration; Introducing regulations that set out identity verification requirements for registration applications; Establishing a single pathway for objections to...
This review outlines the principal updates to the Immigration Rules (the Rules) contained in HC 877 that will most concern business immigration advisers. HC 877 was laid on 11 March 2016, accompanied by an Explanatory Memorandum ( EM). This notice excludes amendments to Tier 2 of the Points- Based System ( PBS) recommended by the Migration Advisory Committee ( MAC) in its January 2016 report, as the Home Office has not yet issued a formal response to the MAC review. Revisions to the Immigration Rules for Tier 2 are expected in the summer or autumn. Be aware that two sets of corrections were placed on the opening pages of HC 877 in March 2016, before the Statement took effect. You can jump to individual subjects swiftly via the Contents...
This analysis reviews the principal amendments to the Immigration Rules (the Rules) contained in HC 1534. HC 1534 was published on 11 October 2018, accompanied by an Explanatory Memorandum ( EM). It sets out the following points of interest for immigration advisers: Widening of the EU Settlement Scheme pilot, plus the launch of an Administrative Review route for refusals under Appendix EU Removal of references to Premium Service Centres ahead of the roll-out of the new Sopra Steria contract Revision of the requirement to submit original documents, which are no longer compulsory for most applications Broader use of evidential flexibility, allowing the Home Office to apply it more readily and across a wider range of applications New provisions enabling unaccompanied children moved to the UK after the Calais camp’s closure to apply for limited and...
Role of oil service agreements in a petroleum project A typical oil and gas project can be divided into four key stages, each marking a distinct step in the lifecycle from start to finish: exploration/appraisal—when a company searches for oil/gas and determines whether the prospect is economically feasible development—this phase begins once appraisal confirms economic viability, and therefore the necessary infrastructure to find and recover oil/gas out of the ground must be designed and constructed production—during this stage, oil/gas is brought onstream, produced and sold; and abandonment—when the company moves to plugging and abandoning operation, which takes place once the economics no longer sustain the project as a whole For more details on the typical agreements seen in UK upstream oil and gas projects, see Practice Note: Upstream Oil and Gas Agreements on the UKCS. The exploration phase is arguably the most critical within the cycle of an upstream...
UNCITRAL Working Group II: Dispute Settlement This Practice Note outlines the activities of the United Nations Commission on International Trade Law ( UNCITRAL) Working Group II: Dispute Settlement and directs readers to its reports. UNCITRAL Working Group II: Dispute Settlement ( Working Group II) ordinarily convenes twice a year to discuss and advance predetermined matters in arbitration and international dispute resolution. Its output has a concrete influence on the evolution of arbitration. For instance, it prompted amendments to the UNCITRAL Arbitration Rules 2010—see Practice Note: UNCITRAL Rules—background and introduction. This Practice Note provides access to the published reports of Working Group II together with related materials—including model clauses for expedited technology disputes. Note: UNCITRAL Working Group III is examining investor-state dispute settlement ( ISDS) reform—see Practice Note: UNCITRAL Working Group III—reports......
Guarantees A guarantee is a contract under which the guarantor agrees to be answerable for the principal’s liabilities to another party (the guaranteed party). Over time, the common law has evolved to afford substantial protections for guarantors. The central rationale for these protections is to ensure the guarantor has certainty about the amount, nature and terms of the obligations it is supporting, and to preserve the rights the guarantor acquires by giving the guarantee. For more information on guarantor rights, see Practice Note: Guarantor rights and how to defer them in guarantee documentation—no competition clauses. As these protections can prejudice a lender’s position, it is common practice for lenders to seek to exclude such rights in guarantee documentation......
Guarantees In banking transactions, guarantees are commonly employed as security for a liability. For further information on the characteristics of guarantees, please see the Practice Note: Guarantees......
A limited partnership can be brought to an end by its: dissolution insolvency (see Practice Note: Ending a limited partnership—what is dissolution?) This Practice Note considers the termination of a limited partnership, including a private fund limited partnership ( PFLP), by dissolution where the court orders that outcome. A significant body of partnership law under the Partnership Act 1890 ( PA 1890) applies equally to limited partnerships and is relied on throughout this note. For other means by which a limited partnership might be dissolved, refer to Practice Note: Ending a limited partnership—dissolution otherwise than by the court. From 6 April 2017, the Limited Partnerships Act 1907 ( LPA 1907) was revised by the Legislative Reform ( Private Fund Limited Partnerships) Order 2017 ( LRO), SI 2017/514. The LRO was initially issued in January 2017 by HM Treasury, together with an explanatory document. It followed a...
Practice Note This Practice Note sets out the principal considerations across the lifecycle—development, funding, build, operation and decommissioning—of a UK ground-mounted solar scheme. It touches on project finance; however, save for especially large schemes, many sponsors now commonly fund development and construction from their own balance sheets rather than accessing debt markets. This is particularly true where the initial developer has disposed of the project to an investor at the pre-construction stage. The Note proceeds on the basis that the ground-mounted solar scheme is delivered as a standalone asset, not a hybrid in which solar is co-located with a battery energy storage system ( BESS) on the same site or paired with another generation technology. Co-location is nevertheless addressed in this Practice Note as follows: as a potential matter for sponsors to consider at the outset when shaping the project structure, or after the project has...
This Practice Note explores ground conditions within construction and engineering schemes. It addresses who bears responsibility at common law and highlights contractual mechanisms that can be included in building contracts to manage situations where the contractor meets adverse ground conditions, setting out how that risk is shared between contractor and employer. It also summarises how the JCT, NEC and FIDIC standard forms approach allocation of ground condition risk... What are ‘ground conditions’? ‘ Ground conditions’ typically describes the site’s geology, hydrology, soil characteristics and any contamination present. Such conditions may arise naturally, be the result of human activity, or a mixture of both. Artificial or man-made conditions or obstructions can include: Antiquities Landfill Asbestos Disused or existing sewers Unexploded ordnance The phrase does not normally cover short-lived surface features like litter or leaves, nor climatic factors. While ‘ground...
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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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