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Contributions by CMS

37

AA 1996—costs and interest under the award
Practice notes

This Practice Note sets out the tribunal’s power under the Arbitration Act 1996 (AA 1996), to order costs and interest in its award(s). It sets out the costs that can be awarded, liability for costs, submissions on costs and the validity of a costs award.

AA 1996—peremptory orders in arbitration (ss 41–42)
Practice notes

This Practice Note discusses what steps a party may take under the Arbitration Act 1996 in England and Wales if another party fails to comply with an order of the arbitral tribunal. It sets out how to apply to the tribunal for a peremptory order (AA 1996, s 41) (ie the power of an arbitral tribunal or arbitrator(s) to make, order, issue or grant a peremptory order; sometimes referred to as an ‘unless’ order in arbitration) and, if that is not effective, to apply to the English court for enforcement of that peremptory order (section 42 of the AA 1996). A peremptory order is an interim remedy the tribunal has power to grant or issue in arbitration proceedings. It is a remedy for non-compliance with a tribunal’s order. Peremptory broadly means insisting on immediate attention or obedience.

AA 1996—what remedies can the tribunal order?
Practice notes

This Practice Note considers the remedies an arbitral tribunal can order under section 48 of the Arbitration Act 1996 (AA 1996). Remedies include the payment of money, specific performance, rectification and declarations. The Practice Note also covers the question of the currency or currencies in which an award can be made.

Advantages and disadvantages of BIM
Practice notes

This Practice Note looks at the advantages and disadvantages of adopting building information modelling (BIM) on a construction project.

Algeria merger control
Practice notes

A conversation with Amine Sator, local partner at Algerian law firm CMS BFL on key issues on merger control in Algeria. This is part of our collection of over 120 maintained national merger control guides.

Damages in international arbitration
Practice notes

This Practice Note provides an introduction to how damages are determined and quantified by the arbitral tribunal (arbitrators) in international arbitration proceedings, with a focus on damages for breach of contract (or contractual breach). It considers what law applies for the purposes of calculating damages; the position of contractual damages; proving and quantifying loss for breach of contract; and, interest on damages. This topic may be referred to as: a guide to damages in international arbitral proceedings; the evaluation or assessment of damages in international commercial arbitration; the computation of damages in arbitration; the recovery of damages in international arbitration; pecuniary relief in arbitration proceedings; money or monetary claims in arbitration; claiming and pleading damages in arbitration; and, punitive damages in arbitration.

Enforcement options in respect of real estate finance transactions
Practice notes

This Practice Note explains the key issues to consider before enforcement and the most typical enforcement options for a lender—share charge enforcement, quasi-enforcement through voting rights and enforcement pursuant to a debenture.

Film finance
Practice notes

This Practice Note considers the key assets that exist in a film, the different methods of structuring a typical film finance transaction, the key financing terms and budget for financing a film, the key parties involved, the typical conditions precedent, the main methods used to take security over the film and related assets and the important commercial arrangements required for generating and distributing any proceeds realised

Management of BIM
Practice notes

This Practice Note looks at the additional roles involved when building information modelling (BIM) is used in relation to a construction project, what those roles involve and other key considerations that the use of BIM gives rise to.

State aid and the market economy operator principle
Practice notes

Economic transactions carried out by Member States do not confer an advantage in favour of an undertaking, and therefore do not constitute State aid under EU law, if they are carried out in line with normal market conditions. The European Commission has established the ‘market economy operator principle’ or MEOP to assess whether, in similar circumstances, a private investor of a comparable size operating in normal market economy conditions would have made the same investment. This Practice Note looks at the application of the MEOP to investments made by Member States.

State aid procedure
Practice notes

This Practice Note summarises the procedure for State aid investigations, including for notified aid, unlawful aid, misused aid and existing aid.

State aid under the General Block Exemption Regulation
Practice notes

This Practice Note provides a basic framework for assessment under the General Block Exemption Regulation (GBER) and its current scope. It provides an overview of the general approach of the GBER and also specific provisions relating to different types of State aid. Also, the practical implications of the revised GBER, the pitfalls and opportunities.

Taking security over intellectual property—practical points
Practice notes

This practice note deals with the interrelationship between the law relating to security and the law relating to IP. It is increasingly recognised that all businesses own and use IP of some kind. Lenders in sectors which include IP-rich businesses are focusing increasingly on ensuring that their security captures the value of this IP. The law relating to security over IP is uncertain, and lenders must manage their way through the uncertainty. In addition, security over IP rights may be costly to put in place and difficult to enforce.

What is State aid
Practice notes

This Practice Note provides an overview of the EU State aid rules, and specifically what constitutes ‘aid’ for the purposes of Article 107(1) TFEU.

Letter to tribunal requesting corrections to award under the Arbitration Act 1996, s 57(3)(a)
Precedents

This is a Precedent letter requesting corrections to an arbitral award under section 57(3)(a) of the Arbitration Act 1996.

Letter to tribunal responding to a request for corrections to award under the Arbitration Act 1996, s 57(3)(a)
Precedents

This is a Precedent letter responding to an application by an opponent for corrections to an arbitral award under section 57(3)(a) of the Arbitration Act 1996. The letter covers the timetable for responding and the possible responses of no correction needed, agreeing to proposed correction and opposing proposed correction.

Other Work
Checklist for reviewing a foreign law legal opinion

This checklist contains a summary of the main points to consider when acting for the lender in reviewing a draft legal opinion prepared by overseas counsel in relation to a financing transaction which involves obligors which are incorporated in, and/or documentation which is governed by the laws of, an overseas jurisdiction

The UK Government's retail banking ring-fencing proposals

Nabarro LLP considers the UK Treasury’s White Paper announced on 14 June 2012 in relation to ring-fencing retail banking operations, which introduced additional loss absorbency proposals and increasing competition in the banking sector. The ring-fencing proposals build on the Vicker’s Independent Banking Commission proposals and can also be seen as a UK form of the Volcker rule proposals. Nabarro’s analysis explores who would be affected, the effects of the proposals and possible exemptions.

Contributions by CMS Experts

34

Amending the amendment power in a pension scheme and making retrospective amendments
Practice notes

This Practice Note looks at the legal issues raised when seeking to amend/alter/modify a pension scheme’s power of amendment. It also looks at the circumstances in which it may or may not be possible to make retrospective changes to a pension scheme’s trust deed and rules.

An introduction to corporate governance and share schemes
Practice notes

This Practice Note introduces the concept of corporate governance and in particular the UK approach to corporate governance in relation to share schemes. This Practice Note examines both the regulatory approach to corporate governance in the UK and the institutional guidelines issued by some of the main bodies including the Investment Association (IA), the Pensions and Lifetime Savings Association (PLSA) (formerly called the National Association of Pension Funds (NAPF) and the Pensions & Investments Research Consultants (PIRC). Finally the Practice Note looks at how companies monitor their compliance with the UK Corporate Governance Code and how the corporate governance regime differs in the UK for financial services firms. This Practice Note is written in partnership with Graham Muir and Dilpa Raval of CMS.

An introduction to Enterprise Management Incentive options for corporate lawyers
Practice notes

Produced in partnership with Graham Muir and Dilpa Raval of CMS. This Practice Note on share incentives (also known as share schemes) gives an introduction to Enterprise Management Incentive options (EMI options).

An introduction to tax-advantaged Share Incentive Plans for corporate lawyers
Practice notes

Produced in partnership with Graham Muir and Dilpa Raval of CMS. This Practice Note on share incentives (also known as share schemes) gives an introduction to HMRC approved Share Incentive Plans (SIPs).

An introduction to tax-advantaged share option schemes for corporate lawyers
Practice notes

Produced in partnership with Graham Muir and Dilpa Raval of CMS. This Practice Note on share incentives (also known as share schemes) gives an introduction to tax-advantaged share option schemes.

Corporate issues in relation to share incentives
Practice notes

Produced in partnership with Graham Muir and Dilpa Raval of CMS. This Practice Note focuses on corporate issues that arise in the context of share incentives (also known as share schemes).

Disguised remuneration and its relevance to employee share incentives—a guide for corporate lawyers
Practice notes

Produced in partnership with Graham Muir and Dilpa Raval of CMS. This Practice Note refers to the aspects of disguised remuneration legislation which apply to employee share incentives (also known as share schemes).

Doing business in: Chile
Practice notes

This Practice Note sets out some of the key considerations for a business before it decides to commence business operations in Chile.

England and Wales—cross border banking and finance guide
Practice notes

This cross border Banking & Finance guide provides a summary of the key issues for lenders providing commercial loan facilities in England and Wales including loan markets and recent developments, lending, security and guarantees, enforcement, intercreditor issues and governing law and disputes

Equitable remedies in contractual disputes
Practice notes

This Practice Note considers the equitable remedies potentially available in contractual disputes, including the remedies of specific performance, declaratory relief, claims for rectification, for rescission, when injunctive relief may be available and when the court may award restitutionary damages.

Flexible apportionment arrangements
Practice notes

This Practice Note focuses on flexible apportionment arrangements (FAA) and in particular the requirements prescribed by the Occupational Pension Schemes (Employer Debt) Regulations 2005 SI 2005/678, reg 6E. This note also considers timing issues relating to flexible apportionments, the funding test to satisfy, ways in which flexible apportionments differ from scheme apportionments and issues relating to scheme rules, trustee costs, notifiable events and clearance.

Group personal pensions
Practice notes

This Practice Note explores the key features of group personal pension (GPP) schemes (a type of defined contribution (DC) scheme often referred to as a contract-based scheme), including their distinction from occupational pension schemes and other personal pension schemes and the advantages and disadvantages to employers of using such schemes for the provision of pension benefits for employees.

Group restructurings and section 75—the general and de minimis easements
Practice notes

This Practice Note focuses on the group restructuring exemptions provided by the Occupational Pension Schemes (Employer Debt) Regulations 2005, SI 2005/678, regs 6ZA to 6ZD. namely the general easement and the de minimis easement. In particular, this note looks at the steps to follow for such easements to apply, the liabilities to be taken into account, the six-year look back period and issues relating to trustee costs.

Interpretation of restrictions on pension scheme amendment powers
Practice notes

This Practice Note looks at the different types of restrictions under an occupational pension scheme's power of amendment which may impact upon the ability of trustees and sponsoring employers to make changes to the scheme's trust deed and/or rules. It considers the common type of restrictions and the impact of scheme wind up on the power of amendment.

Investment-regulated pension schemes (IRPS)
Practice notes

This Practice Note looks at investment-regulated pension schemes (IRPSs), a particular category of registered pension schemes introduced by the Finance Act 2004 that are subject to additional controls on the asset classes that can be held as investments. In particular, this Practice Note covers what an IRPS is, the meaning of taxable property (residential property and tangible moveable property), the circumstances in which taxable property is held directly and indirectly, the circumstances in which indirect holdings constitute genuinely diverse commercial vehicles, and the tax charges that apply where an IRPS acquires a direct or an indirect holding in taxable property which is not held through a genuinely diverse commercial vehicle.

Investments for personal pensions
Practice notes

This Practice Note looks at the framework surrounding investments in personal pension schemes (sometimes referred to as contract-based schemes). In particular, this note looks at the tax treatment of investment income and gains, and tax-related investment restrictions, including the impact of provisions relating to unauthorised member payments.

Lugano Convention 2007—general provisions in relation to jurisdiction
Practice notes

This Practice Note considers the general provisions in the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30 October 2007 (the Lugano Convention 2007). It sets out the background to the convention, when it applies and the contracting States. It explains the relevance to understanding the Convention of the case law construing both the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Brussels on 27 September 1968 (the Brussels Convention) and Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I). The Practice Note then covers the scope of the Convention, the general rule and exceptions to that rule.

Lugano Convention 2007—jurisdiction agreements and entering an appearance
Practice notes

This Practice Note considers the general provisions in the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30 October 2007 (the Lugano Convention 2007). It looks at the effects of a jurisdiction agreement under Article 23 and then sets out the requirements for a valid jurisdiction agreement under Article 23. It then goes on to specifically consider the requirement for the agreement to be in writing or evidence in writing as well as situations in which the jurisdiction agreement is in a form which accord with the parties’ established practices or is in a form which accords with a widely known usage. The Practice Note considers exclusive and non-exclusive jurisdiction agreements and what parties must prove when seeking to rely on a jurisdiction agreements. Protection for weaker parties in insurance, employment and consumer contracts are also covered along with the position when dealing with trusts.

Lugano Convention 2007—multiple proceedings
Practice notes

This Practice Note considers the rules in the Lugano Convention 2007 relating to multiple proceedings. This covers both parallel and related proceedings and considers the approach where other proceedings have been commenced in a non-convention state.

Lugano Convention 2007—special and exclusive jurisdiction
Practice notes

This Practice Note considers the provisions in the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30 October 2007 (the Lugano Convention 2007) dealing with issues of special and exclusive jurisdiction. This covers Article 5 which deals with, among other things, contract and tort claims, Article 6 which covers issues such as dealing with multiple defendants, third parties or counterclaims and Articles dealing with weaker parties in insurance, employment and consumer claims. It also considers the different categories of claims which fall within Article 22 under which the courts of a Member State will have exclusive jurisdiction.

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