Legal Practice Notes

1. Have there been any recent developments regarding the regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Myanmar? In general, merger oversight in Myanmar is set out in the Competition Law 2015 (the Law) and the Competition Rules (the Rules). The Competition Commission (the Commission), established in Yangon, comprises a chair and members of the intelligentsia, being individuals holding the rank of Union Minister, together with other qualified persons from relevant ministries and government departments. As stipulated in the Rules, the Commission also includes one representative from the Ministry of Commerce, the Union Attorney General’s Office, the Ministry of Home Affairs, the Ministry of Transport and Communications, the Ministry of Industry, and the Union of Myanmar Federation of Chambers of Commerce and Industry ( UMFCCI) along with its affiliated...

Before any appointment is made, the central matter to agree with the nominated liquidator is the company’s real position on solvency. For further detail, see Checklist: Directors' due diligence questionnaire and guidance before swearing a statutory declaration of solvency for a members' voluntary liquidation. Documents and information to be provided to the liquidator by the company To confirm the company’s true financial standing, provide the nominated liquidator with the following: a current schedule of the company’s assets and liabilities. Where the company has ceased trading, compile the schedule up to the date trading ceased......

Note—to check whether notification thresholds in Madagascar and worldwide are triggered, see: Where to Notify. Madagascar is also part of COMESA, which operates a supra-national merger control regime. 1. Have there been any recent developments regarding the regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Madagascar? Madagascar’s merger control is regulated by Law No. 2018-020 of 23 August 2018, which overhauls the Competition Law. Decree No. 2008-771 of 28 July 2008 remains in force until new implementing texts are issued. Enforcement rests with members of the Conseil de la Concurrence (the Authority). The implementing decree for the Competition Law is presently moving towards adoption. Articles 39.2, 47.5 and 84 of the Competition Law were found unconstitutional by the High Constitutional Court in Decision No. 023- HCC/ D3 of 14 August 2018 (not...

The Companies Act 2006 ( CA 2006) The Companies Act 2006 ( CA 2006) sets out the consequences where a company fails to secure the necessary members’ approval for loans made by the company to directors, persons connected with directors, and related arrangements under CA 2006. For more detailed information on the members’ approval requirement, including details on key transitional provisions, see Practice Note: Loans to directors, connected persons and related arrangements—requirement to obtain members’ approval and Commentary: Common matters regarding member approval: Gore‑ Browne on Companies. For the purposes of these statutory provisions, the term ‘director’ covers any person occupying the office of director, by whatever name called, and a shadow director. Where the company making the loan has a listing of shares in the equity shares (commercial company) category, the UK Listing Rules ( UKLR), in particular UKLR 8...

This Practice Note sets out what a limited civil restraint order ( LCRO) is and the situations in which the court will make one under CPR 2.3 and CPR PD 3C. It outlines the impact of these orders and the ramifications of any non-compliance. It also indicates who may issue a LCRO and the criteria for doing so. Read this alongside Practice Note: Civil restraint orders, which provides general guidance on civil restraint orders ( CROs) applicable across all forms of CRO. See also Practice Notes: Extended civil restraint orders, General civil restraint orders, and Civil proceedings orders against vexatious litigants for details of other measures available against vexatious litigants. What is a limited civil restraint order ( LCRO)? A LCRO can be made by a judge of any court where a party has brought two or more applications that are totally without merit ( CPR PD 3C,...

Limitation periods Limitation periods describe the window within which a claim must be issued. The rules are contained in the Limitation Act 1980 ( LA 1980), which sets out different time limits for various causes of action. In an insolvency setting, claims are commonly grouped into three types: actions founded on a 'speciality' carry a 12-year period. Speciality claims include those arising from a statutory cause of action and typically concern recovery of property, such as setting aside a transaction in insolvency where the remedy is not simply the payment of money claims to recover a sum of money under statute have a six-year period claims for which no limitation period applies A limitation clock will usually start on the date the cause of action accrues. That position applies where the claim stems from the debtor’s own cause of action. For...

What is judicial review? Judicial review is the mechanism by which the courts in England and Wales scrutinise decisions taken by government ministers and departments, industry regulators, local authorities, and public bodies to check that they have acted lawfully and fairly. When determining whether a given organisation is a ‘public body’ for judicial review purposes, the court looks at the functions it carries out and whether those functions produce public law consequences. The court examines the decision making process used by a public body to decide if the decision was made validly. The court’s power to undertake this review comes from statute, while the governing principles of judicial review stem from case law that develops continually. A court may decline permission to issue a judicial review claim where an alternative remedy has not been pursued. Judicial review remains a measure of last resort in public law...

ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note considers how to interview witnesses and get them ready to give evidence at trial. It addresses pinpointing the key information required; how far it is useful to refer to documents; obtaining a witness statement, and making sure you keep a complete record of what is discussed during the interview. Finally, it looks at preparing a witness to give evidence at trial. Note: This Practice Note offers guidance on interpreting and applying the CPR, but it does not specifically cover the requirements and guidance for interviewing a witness when preparing a statement for use at a trial in the Business and Property Courts (see CPR PD 57AC). See also: court‑specific guidance. Under CPR 32.2(3), the court may give directions to: define or limit the issues on which factual evidence may be...

This Practice Note addresses matters arising where a tenant is insolvent, including surrender, sureties, subtenants, charges, access to the premises, goods the tenant has left behind and HM Land Registry’s requirements. Agreeing a surrender is often the swiftest route for a landlord to recover possession of the premises from an insolvent tenant. It serves to avoid the additional preconditions that must be satisfied before forfeiture can take place (eg the need for a court order or the administrator’s consent where the tenant is in administration). For more on the various forms of insolvency, see Practice Note: Quick guide to property insolvency. Landlords will typically be under pressure to complete any surrender swiftly. To avert difficulties arising at a later date, however, the following issues ought to be considered. How surrender operates There are two ways a surrender may arise: express and implied. For the...

This Practice Note addresses the principle of self-determination, valid consent, implied consent, provision of sufficient information in line with Montgomery, and causation. A doctor may lawfully treat a patient only where consent has first been obtained. This applies whether the intervention is a straightforward test or an invasive procedure. In reality, consent disputes usually emerge after more serious, higher-risk care such as surgery. Any adult who has the mental capacity to make their own treatment choices may accept or decline care, even where refusal could result in permanent harm or death to them or to their unborn child. Nor can such treatment be justified by detaining the person as a mental patient. For additional issues on consent—emergency treatment, withdrawal, capacity, professional guidance, battery, and Human Rights Act 1998 claims—see Practice Note: Consent in clinical negligence...

This Practice Note explains how a surrender by operation of law (implied surrender) can arise, the impact of a landlord accepting keys, and situations that may prompt surrender... Main principles An implied surrender occurs where the parties’ unequivocal conduct is incompatible with the tenancy continuing. It is evidenced by the tenant yielding up possession and the landlord accepting it. A tenant cannot end its lease obligations unilaterally. The central question is whether the landlord’s behaviour is so inconsistent with the tenancy’s survival that it can only be justified on the footing that possession has been retaken. Their actions are assessed objectively, considering the totality of their conduct... In Artworld v Safaryan, the Court of Appeal upheld a finding of surrender by operation of law where the cumulative effect of the landlord’s conduct showed an intention to assume control of the premises and treat them as its own, even...

Practice Note This Practice Note offers practical direction on applying to set aside a judgment entered against a defendant who did not file an acknowledgment of service or a defence (a default judgment, or judgment in default). For an outline of the grounds on which a default judgment can be set aside, see the following Practice Notes: Setting aside default judgment—mandatory grounds ( CPR 13.2) Setting aside default judgment—discretionary grounds ( CPR 13.3) An application to set aside default judgment is an application for a court order, so the core procedure is contained in CPR 23 and CPR PD 23A. Guidance on preparing a CPR-compliant application is set out in Practice Note: How to make an application for a court order ( CPR 23). You should familiarise yourself with that guidance before making any application to the court, as it provides the...

This Practice Note sets out the various classes of title that HM Land Registry may confer, the situations in which each of the four classes (absolute, qualified, possessory or good leasehold) is granted, the legal effect of being registered with a particular class, and the circumstances in which HM Land Registry may approve an upgrade of class. Upon first registration of an estate in land, HM Land Registry will determine the class capable of being granted by reference to the overall quality of the title, as revealed through examination of the title deeds together with any accompanying evidence filed at the point of first registration. The class that is granted is subsequently entered on the proprietorship register. Both freehold and leasehold estates can be registered with either of the following: absolute title qualified title possessory title Leasehold estates can also be registered with: good leasehold...

The compulsory jurisdiction of the Financial Ombudsman Service ( FOS) Set out in Chapter 2 of the FCA’s Dispute Resolution: Complaints Sourcebook ( DISP), and made under section 226 of the Financial Services and Markets Act 2000 ( FSMA 2000), the compulsory jurisdiction of the Financial Ombudsman Service ( FOS) requires that complaint about an act or omission by a person (the respondent) in carrying on an activity to which compulsory jurisdiction applies is considered under the FOS scheme, provided certain criteria are satisfied and the complaint meets those conditions. The conditions are that the following apply: the complainant is eligible and wishes the complaint to be considered under the FOS scheme the respondent was an authorised person at the time of the relevant act or omission, and the relevant act or omission occurred when compulsory...

This Practice Note explains what a statement of costs is and sets out the steps required to complete one properly. It also addresses whether the expense of preparing the statement is recoverable, the rules for filing and serving the document, the applicable time limits, and the consequences of missing them. Note that CPR PD 44, para 9.1 states that the court should consider carrying out a summary assessment of costs whenever it makes a costs order that does not provide only for fixed costs. The extended fixed recoverable costs ( FRC) regime applies to most civil claims worth no more than £100,000 that are issued on or after 1 October 2023. Where a case falls within the FRC regime, costs will not be summarily assessed. For further information generally on fixed costs, see: Fixed costs—overview. References in this Practice Note to fast track cases are to...

Incorporated v unincorporated charities Charities commonly adopt a range of incorporated and unincorporated forms. Corporate forms eligible for charitable status include: a charitable company (almost always a company limited by guarantee) a co-operative society or community benefit society (formerly termed industrial and provident societies) charity trustees incorporated under Part 12 of the Charities Act 2011 ( CA 2011) a charitable incorporated organisation (ie the limited-liability model created by Part 11 of CA 2011), requiring registration solely with the Charity Commission a body corporate established by Act of Parliament or Royal Charter (eg the Official Custodian for Charities) Unincorporated charities take one of two forms: a charitable trust; or a charitable unincorporated association Charitable company A charitable company may enter into contracts, execute deeds and issue other documents in the same way as any company formed under the Companies Acts......

Excluding evidence of the defendant's 'bad character' under CJA 2003, s 101(3) Where material demonstrating a defendant’s bad character is capable of admission under the Criminal Justice Act 2003 ( CJA 2003) to indicate a tendency to offend or to be dishonest (gateway D), or to meet an attack on another individual’s character (gateway G), the CJA 2003 provides that the court ‘must not admit’ that material if it appears that receiving it would have such an adverse impact on the fairness of the proceedings that the court ought not to receive it. For guidance on the circumstances in which gateways D and G operate, see the Practice Notes: Admissibility of bad character to prove propensity, Admissibility of bad character to prove untruthfulness, and Admission of bad character to correct false impression or to counter an attack, for further information and...

The notion of ‘single and continuous infringement’ ( SCI) allows the European Commission ( Commission), and national competition authorities more broadly, to treat a chain of breaches of Article 101 TFEU as one and the same cartel conduct, on the basis that they form part of a unified overall scheme... Rationale behind the SCI concept When a long-running and intricate cartel is under scrutiny, its reach, shape and participants can vary over time. This creates, among other things, the following challenges for the Commission: a heavier evidential burden, because the Commission would have to establish and substantiate: that there were multiple discrete anti-competitive agreements and/or concerted practices, and which undertakings took part in each instance a possible limitation issue in relation to the more...

Although damages are the principal remedy for a contractual breach (see Practice Note: contractual damages—general principles and related content), there are times in contract disputes—particularly where the agreement has not, or not yet, been breached—when damages are unavailable or not the most fitting response. In those circumstances, the court has a discretionary power to grant equitable relief, which may include: specific performance of any outstanding contractual obligations declaratory relief, for example as to the construction of a particular contractual term injunctive relief (interim or final) compelling a party in breach/about to breach to act or to refrain from acting rectification of a contract or of a deed rescission of a contract or of a deed Where damages for breach are claimed they are ordinarily advanced and, if granted, assessed by reference to the accepted compensatory purpose of contractual damages, ie to place the innocent party in the position they would have...

This Practice Note explores enforcement in Scotland or Northern Ireland of judgments from the courts of England and Wales ( English courts) under section 18 of the Civil Jurisdiction and Judgments Act 1982. It differentiates between implementing money terms in a judgment and enforcing non-money orders, noting the distinct documents needed to complete registration. It also addresses the registration process itself and how to obtain the necessary documents under CPR 74 and CPR PD 74A, including the evidence required for such applications and the form those documents take. For general guidance when enforcing an English court judgment outside the jurisdiction, see Practice Note: Cross-border enforcement of English judgments—principles. Definitions CJJA 1982—the Civil Jurisdiction and Judgments Act 1982 judgment—for the purposes of enforcing UK judgments in other parts of the UK, this is defined in CJJA 1982, s 18. Note, it also sets out what is not...