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Contributions by CMS

41

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—inadequate award—correcting mistakes or errors in an arbitral award (s 57)
Practice notes

This Practice Note considers with how to apply to the arbitral (arbitration) tribunal for the correction of mistakes or errors in an arbitral award (the slip rule) whether they be typographical, computational or clerical under section 57 of the Arbitration Act 1996 (AA 1996). It sets out the timescale for making an application (or applying) for correction of mistakes or errors (and extensions of time that may be permissible) and gives case law examples of successful and unsuccessful applications for corrections under the slip rule (AA 1996, s 57(3)). AA 1996, s 57(3)(a) provides a tribunal with the power (jurisdiction) to correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award. This process (procedure) may be referred to as: a remedy for an inadequate award under English law; applying to amend or for an amendment to an award; errors or mistakes with awards.

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—provisional awards
Practice notes

This Practice Note considers the availability of provisional (or interim) awards under section 39 of the Arbitration Act 1996 (AA 1996) under the law of England and Wales. The Practice Note considers when a provisional award may be appropriate. The Practice Note also covers the arbitral tribunal’s ability to order freezing injunctions under English law.

AA 1996—remedies arbitral tribunals may order in awards
Practice notes

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

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

Partial awards in arbitration
Practice notes

This Practice Note considers partial awards in (international) arbitration proceedings. An interim or partial award may be issued (handed down) by an arbitral tribunal on a specific issue (for example, substantive jurisdiction) and at any time before a final award, although there are rules that must be followed for applications for awards on jurisdiction. This Practice Note considers the nature of a partial award (and contrasts it with interim relief or a provisional award), when and how to apply for a partial award, and the pros and cons (advantages and disadvantages) of doing so. The Practice Note also refers to the recognition and enforcement of partial awards.

Payment Services Regulations 2017—scope
Practice notes

The purpose of this Practice Note is to define some of the key terms of the Payment Services Regulations 2017, SI 2017/752 (PSRs 2017), such as payment service, payment account, payment transaction and payment instrument, in order to assist those carrying on certain services in deciding whether they fall within the scope of the PSRs 2017.

Using arbitration to resolve TMT disputes
Practice notes

This Practice Note sets out how arbitration can be used to settle disputes in the TMT sector and where arbitration is a suitable dispute resolution method in that sector. It discusses factors in favour of arbitration, such as expertise, confidentiality, and enforceability of awards, and factors against, such as cost and difficulties in obtaining injunctive relief. It looks at features of TMT disputes, including the non-arbitrability of certain claims, non-contractual matters and multi-party arbitrations.

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

Drafting an arbitration agreement in respect of actual or potential disputes in the TMT sectors—checklist

This Checklist considers some of the relevant considerations when drafting an arbitration agreement in respect of actual or potential disputes in the technology, media and telecoms (TMT) sectors.

Nabarro comment on the Payments Industry consultation

Experts from Nabarro comment on the recently published consultation on the future regulation and governance of the payments industry, as the UK government questions whether the industry responds effectively to consumer needs and offers sufficient consumer protection. Revised supervisory measures are to balance traditional payment mechanisms with emerging technologies and set strategy in this vital area for the real economy.

Non-Executive Directors escaping FSA interview

Nabarro LLP comments on reports that the Financial Services Authority is interviewing fewer board candidates for financial service groups. The FSA had attempted to interview all board candidates—a move which was criticised — but it struggled to find the resources to conduct the interviews and firms were finding it difficult to find candidates for NED positions. Nabarro’s analysis considers the need to balance corporate governance with pragmatism

The FSA's record fine—LIBOR

Nabarro LLP consider the FSA’s record fine of Barclays in relation to manipulation of the interbank interest rate. Combined with fines from regulators in other jurisdictions, such as the US Commodity Futures Trading Commission and the US Department of Justice, Barclays has been significantly penalised. The FSA’s approach considers the failings in systems and controls

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

35

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 Practice 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—insurance, consumer and employment claims
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 insurance, consumer and employment claims.

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 and also the position under Article 24 where a defendant enters an appearance before a Member State court. Finally, this Practice Note discusses the implications for the application of Article 23 and 24 (which apply regardless of domicile of the parties) once the UK is no longer bound by the convention as a result of its membership of the EU and becomes a so called third state for the purposes of the application of the convention.

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.

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