Legal Practice Notes

This Practice Note offers an introduction to cybersquatting. It involves registering a domain name that incorporates another business’s trade mark with the purpose (or consequence) of taking unfair advantage of that mark. It also encompasses typosquatting, being the registration of a domain name featuring a misspelt version of another party’s trade mark. There are several avenues to pursue action against cybersquatters, including Nominet’s Dispute Resolution Service ( DRS) and the Uniform Domain Name Dispute Resolution Policy ( UDRP)... What is cybersquatting? Also referred to as domain name squatting, it is the bad-faith registration of a domain name that matches or is confusingly similar to a trade mark or name, with the intention of profiting from the goodwill attached to that mark or name. The practice exploits the trade marks of businesses, individuals, or other entities, aiming to secure commercial benefit for the...

This Practice Note is a practical ‘how to’ resource for businesses addressing cybersquatting. It outlines what cybersquatting involves, ways to prevent it, and actions to take if it happens. It proceeds on the basis that the infringing domain is UK-based, eg .co.uk, .uk, or .org.uk. What is cybersquatting? Cybersquatting occurs where a party registers and/or uses a domain name in bad faith to exploit, or cause detriment to, another party’s rights. A domain name is a unique identifier for a particular internet resource or one or more IP addresses, eg a website. For information, see: Domain names—overview. For example, an individual might register a domain containing a well-known brand name and trade mark, intending to sell it back to the brand owner at an inflated price, or use that domain to redirect genuine customers of the brand to another site, perhaps offering a...

This Practice Note considers cybersecurity in international arbitration. An introduction to cybercrime and cybersecurity in international arbitration A single arbitration may draw in many actors from varied jurisdictions—parties, funders and insurers, arbitrators, counsel, experts, witnesses, the administering arbitral institution or another organising body, plus external service providers—collectively, the ‘ Participants’. Within the process, they exchange material that is not publicly available. Unauthorised access could cause commercial harm, sway share prices, reshape corporate strategies or even government policy. The result of a case can reverberate through financial markets; obtaining a draft award before it is issued to the parties could be highly profitable for cyber criminals. Accordingly, the arbitral process is a target for cyber attacks, especially where hackers can locate a weak link in the chain of custody. Because arbitration’s speed and practicality rely on digital...

Cybercrime is a rapidly shifting, continually changing and unpredictable threat to every commercial organisation and it demands firm management. This Practice Note brings together examples of sound practice for generally lowering the likelihood of cybercrime and cyber security breaches. It is written for compliance practitioners rather than cybercrime specialists. It also excludes niche industries such as telecommunications. Responsibility Treat cyber risk, as with any other business hazard, as a top-tier priority for the in-house compliance or legal function and manage it accordingly. It sits within a wider information risk management and crime-prevention framework, and must not be parked with IT alone. A senior individual should assume overarching responsibility to run a risk assessment and, from that, craft and roll out your policies and procedures. They should receive training and have sufficient resources to keep those policies and procedures up to date. All personnel should know who holds this...

While adopting preventative measures clearly makes sense (see Practice Note: Cybercrime prevention), the possibility of cybercrime or a cyber attack can never be entirely eliminated. A robust approach to cybercrime and wider cyber security risks should pair strong technical and organisational defences with a clear plan for responding to, and mitigating, the impact of any attack that does occur. This Practice Note offers practical guidance on assembling the incident management strand of your Cybercrime prevention strategy and your incident management plan. It also outlines breach notification obligations under the General Data Protection Regulation ( UK GDPR), Assimilated Regulation ( EU) 2016/679, where a cybercrime incident amounts to a personal data breach. The Practice Note is aimed at compliance specialists within general commercial organisations and does not address sector-specific...

This Practice Note distils the principal insights from the National Cyber Security Centre ( NCSC) publication Cyber Threat Report: UK Legal Sector, and also draws on data in the Solicitors Regulation Authority ( SRA) Cyber security thematic review ( September 2020) together with the SRA’s Information security and cybercrime risk outlook. Headline facts and figures The cyber threat facing the UK legal sector is substantial, with reported incidents rising sharply over recent years. The financial and reputational fallout for law firms is likewise considerable. Costs can arise from: the incident itself remediation and recovery restoring damaged reputations The SRA’s thematic review noted that three quarters of the firms it visited stated they had been targeted by a cyber attack. Others reported that cyber criminals had directly approached their clients during live legal transactions. Although not every incident resulted in client financial loss, in 23 of the 30 matters where firms were...

What is cyber insurance? Cyber insurance has rapidly progressed from a narrow form of cover, originally focused on liabilities anticipated following the 2002 Californian Data Security Notification Law, to a sophisticated product delivering a blend of first- and third-party protections, chiefly intended to help insureds manage cyber attacks and to indemnify them for the losses that follow. There is no single, settled definition of cyber risk. For insurance purposes, it is typically viewed as the chance of harm, financial loss, or legal liability resulting from damage to, or unauthorised access to, information systems. Frequent sources of loss include accidental events (e.g. damage to equipment that hosts data or system misconfiguration) and deliberate attacks (e.g. ransomware, business email compromise, distributed denial-of-service attacks). Such events may give rise to a range of significant incident response and remediation costs and expenses; first-party loss;...

This Practice Note sets out the information that ought to be supplied to the nominee so as to enable them to assess the merits of the CVA proposal and to prepare their report for the court (see below: Nominee who is the administrator or liquidator). Statement of Insolvency Practice ( SIP) 3.2 is relevant to the whole of this Practice Note. Where Nominee is not the administrator or liquidator The Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024 apply to CVAs. The nominee is required to prepare a report addressing whether: the company’s financial position is materially different from that contained in the CVA proposal, together with an explanation of the extent to which the information has been verified the CVA is manifestly unfair the proposer’s consent is sought on any modifications to the proposal put forward by...

Modifications to company voluntary arrangements ( CVAs) There is limited statutory direction on how CVA modifications should be approached. Some direction appears in Statements of Insolvency Practice ( SIP) 3.2. Alterations to a CVA proposal are acceptable, so long as they do not: reshape the CVA so extensively that it is no longer a CVA at all (for example, a change compelling the company to enter administration would be impermissible) restrict, vary, or diminish a secured creditor’s right to realise its security without that creditor’s express consent reorder distributions so that any preferential creditor loses priority over non-preferential creditors without that creditor’s express consent upset the rule that all preferential creditors share dividends pari passu without the disadvantaged creditor’s express consent Amendments affecting preferential creditors cannot be approved merely because a majority of preferential creditors agree; each affected...

This Practice Note offers practical direction on customs procedures and trade facilitation commitments applied by Australia and the United Kingdom under the Australia and the United Kingdom Free Trade Agreement ( Aus- UK FTA). Introduction As a free trade agreement, the Aus- UK FTA does more than govern tariffs on goods traded between the two parties; it also deals with other matters required for trading in goods or considered non-tariff barriers to trade. This includes: rules of origin. For detail on rules of origin under the Aus- UK FTA, see Practice Note: Rules of origin of the Aus- UK FTA. For guidance on making an origin claim under the Aus- UK FTA, see Practice Note: How to claim preference under the Aus- UK FTA technical barriers to trade. For commentary on technical barriers to trade under the Aus- UK FTA, see Practice Note:...

First written by James E. Meadows of Culhane Meadows PLLC for Lexis Practical Guidance UK-adapted from the US version—this Practice Note offers a framework to shape a negotiation plan for an outsourcing arrangement. As outsourcing transactions encompass numerous intricate issues, often face compressed timetables (particularly where concurrent negotiations are underway), and require extensive documentation to record the parties’ terms, negotiations must be disciplined and well organised. This Practice Note does not explore the specific negotiation points in depth; those are covered comprehensively in Practice Notes: Negotiation guide—services agreements and Negotiation guide— IT contracts. Pre-negotiation considerations Achieving effective outsourcing negotiations starts before formal discussions commence. It begins with determining whether outsourcing is the right course. Negotiations will then address the central aspects of an outsourcing deal, such as: What are the advantages and disadvantages of outsourcing? How do the financial outcomes of...

This Practice Note gathers a consolidated list of Crafty Counsel videos available within Lexis+® In-house Advisor. Further videos can be found on the Crafty Counsel website. New to role Video Mini-summary Crafty Counsel video: Your first 100 days as General Counsel—carving out the General Counsel's role In this bite-sized video from Crafty Counsel, first posted 08.10.2019, coach and former GC Emma Jelley, Alexis Alexander of Liberis, and experienced GC Xavier Langlois explore how General Counsel should define accountability for their function—including setting boundaries on what the Legal team is not for. They also tackle the usual ‘hot potatoes’ that fall to legal, such as data protection, information security and employment. Crafty Counsel video: What makes a great in-house leader? This short Crafty Counsel video, first posted...

This table outlines every concluded probe by Curaçao’s competition regulator (the Fair Trade Authority— FTAC) into suspected cartels, restrictive agreements and misuse of dominant positions since 2019. Note—only enquiries that have been disclosed to the public appear in this table. 2020 Investigations under Article 3.1 of the National Ordinance on Competition Case title, companies probed and the sector Issues Developments The FTAC issued no decisions under Article 3.1 in 2020 investigations at all......

This Practice Note offers an overview of cumulative impact claims and explores how numerous instructed variations on a construction project can affect a contractor’s progress on unchanged tasks and diminish productivity, the courts’ and tribunals’ treatment of such claims, the possible influence of contractual terms on them, when and how to quantify the claims, and practical guidance on securing a successful cumulative impact claim. What is a cumulative impact claim? Variations on construction projects arise frequently and for a range of causes, including: contracts executed before the design or scope is finalised; the employer seeking alterations as the build advances; inconsistencies within the contract documents requiring resolution; or unforeseen physical site conditions that must be addressed. While the direct consequences of variations—such as the price of the changed work and the knock-on effect on linked activities—are usually straightforward to determine, large and complex schemes may involve hundreds of changes whose...

Practice Note: Loan relationships—the main tax rules As set out in detail in the above Practice Note, the default position is that a company’s credits and debits—broadly, profits and losses—arising from its loan relationships are recognised for corporation tax within the loan relationships regime by reference to the company’s accounting profit and loss, as shown in its relevant accounts prepared in accordance with generally accepted accounting practice ( GAAP). Put differently, GAAP-based accounts determine whether amounts exist, how they are measured and when they arise for taxation in relation to those loan relationships for corporation tax purposes. This is often summarised as ‘tax follows the accounts’. The statutory rules are found principally in Part 5 of the Corporation Tax Act 2009 ( CTA 2009) (ss 292–476), with additional provisions contained in Part 6 ( CTA 2009, ss 477–569). There are,...

Capital gains tax—basic principles When someone disposes of an asset and realises a profit that is capital in nature, this could amount to a taxable capital gain. In assessing whether a liability to tax arises, there are several matters to review: the asset, the act of disposal, and the individual making that disposal must each be of a kind that can fall within capital gains tax ( CGT) the ‘consideration minus costs’ calculation must produce a positive figure: for more on computing the gain, see Practice Note: How is a capital gain calculated? an exemption or relief might be available: certain assets, and certain persons, are wholly outside CGT (see Practice Note: What is a capital gain?) ...

The requirements for a company share option plan ( CSOP) rollover are intricate and technical. This note will explore: what a CSOP rollover is why a CSOP rollover might be used when a CSOP rollover can be applied the eligibility tests that must be met for a CSOP rollover the timing constraints for a CSOP rollover the consequences of issuing replacement options how selective and partial rollovers operate frequent misconceptions and errors around CSOP rollovers What is a CSOP rollover? CSOP legislation permits the grant of replacement options to existing optionholders after a takeover of the scheme company (whose shares were under option), in a way that carries across the favourable tax treatment of the original CSOP options into the new awards. The replacement CSOP options must be equivalent to the original awards, but instead relate to shares in the acquiring company. While the expression “rollover” is widely used, the...

When designed, operated and monitored correctly, in line with company share option plan ( CSOP) legislation, the income tax and National Insurance contributions ( NICs) position for qualifying CSOP options can be highly advantageous in tax terms. This Practice Note outlines the income tax and NICs treatment of qualifying CSOP options with reference to, and in accordance with, Part 7, Chapter 8 of the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003). For further discussion of the capital gains tax and corporation tax consequences of CSOP options, see Practice Note: CSOP— CGT treatment and corporation tax treatment. Income tax—basic principles Income tax is charged on income, though not every form of income is taxable. Individuals are assessed only on ‘taxable income’ above a particular threshold. Numerous reliefs and allowances can reduce the overall tax due. For an outline of the income tax...

Company share option plans ( CSOPs) These are statutory, tax‑advantaged, discretionary share option arrangements that may run on an all‑employee basis, though they are more often applied selectively. Where the statutory rules are satisfied, favourable tax treatment may follow. The CSOP framework is prescriptive, laying down multiple conditions to be met both at grant and at exercise, covering matters relating to: the company issuing the options the employees to whom options are granted, and the shares placed under option Detailed conditions apply at each key stage of an option’s lifecycle. They govern eligibility of issuer, recipients and underlying shares alike. This Practice Note concentrates on the CSOP eligibility criteria that must be met by the company and by the shares to be put under option. Those criteria are explained with reference to the income tax relief contained in sections 521–526 of the Income Tax (...

Background The Market Abuse Directive 2003/6/ EC ( MAD) was enacted in 2003, creating a legal framework across the EU to safeguard market integrity against insider dealing and market manipulation. In the wake of the extensive harm caused by the financial crisis, however, an assessment of MAD’s effectiveness was undertaken, leading the European Commission ( Commission) to propose its repeal and replacement. Consequently, on 12 June 2014, the Official Journal of the European Union published the texts of two new legislative instruments: Regulation ( EU) 596/2014 ( EU Market Abuse Regulation), Directive 2014/57/ EU on criminal sanctions for market abuse ( CSMAD) Together, the EU Market Abuse Regulation and CSMAD displaced MAD and ushered in a new EU‑wide market abuse regime that spans a broader range of markets, products and behaviour than before. The EU Market Abuse Regulation and CSMAD took effect on 3 July...