The concept of ‘single and continuous infringement’ (SCI) allows the European Commission to lump a series of infringements of Article 101 TFEU together on the ground that they pursue a single overall plan. This Practice note explores the SCI concept, what’s required to prove the overall objective and the subjective, intent of the parties. The Practice Note also considers the potential impact of a finding of an SCI and the consequences of a successful appeal against a finding of an SCI by the Commission.
This Practice Note explains the key terms of a facility agreement for a typical borrowing base transaction. It includes explanations of the provisions about committed and uncommitted facilities, drawdown, repayment and mark to market, the borrowing base and hedging covenants.
This Practice Note explains the structure of borrowing base facilities and their key terms. It covers the key risks for lenders in borrowing base facilities.
This Practice Note covers the key issues to consider when taking security in a typical borrowing base facility. It covers taking security over the borrowing base assets, security over rights to payment and other contractual rights and security over collection accounts.
Cartels are considered to be the most pernicious anti-competitive practice under Article 101 TFEU (and domestic equivalents). This Practice Note reviews what is a cartel and looks at the specific legal regime that they are subject to in the EU, including leniency and settlement.
Most-favoured nation (MFN) clauses, also referred to as price relationship agreements, can fall within the scope of competition law. This Practice Note examines their treatment by the European Commission and national competition authorities.
The concept of concerted practices or effects means that collusive behaviour (or collusion), falling short of an agreement, may come within the scope of Article 101 TFEU (or Chapter I of the Competition Act 1998). This Practice Note explores the concept and its application. The note breaks down the concept into its constituent parts and details requirements from case law, including establishing an infringement in cases of price signalling and parallel behaviour. There are also details on circumstances when concerted practices can be seen as ‘by object’ infringements and the evidential requirements.
The European Commission has broad investigative powers to enforce EU competition rules and prosecute antitrust violations, including cartels. Among other things, the Commission has the power under Article 18 of Regulation 1/2003 to request undertakings (and associations of undertakings) to provide ‘all necessary information’ to facilitate review of suspected breaches. This Practice Note explores the scope of these powers, in particular the two types of requests the Commission can issue (non-mandatory and mandatory), its discretion to request information and penalties for non-compliance with such requests. This Practice Note also reflects on limitations on the Commission’s exercise of these powers (including considerations regarding general principles of EU law and the rights of defence) as well as on the interplay between Commission’s powers to request information under Article 18 of Regulation 1/2003 and the Leniency Notice.
The European Commission has broad investigative powers to uncover anti-competitive conduct. This Practice Note explores the parameters of these powers and the safeguards for companies under investigation. The Practice Note details the Commission’s powers of inspection (also known as ‘dawn raids’) under Article 20 of Regulation 1/2003, the duty of active cooperation and penalties for procedural infringements, along with the rights of defence in the course of preliminary investigations and how inspection decisions can be challenged.
EU competition law can have extra-territorial reach. This Practice Note considers the territorial limits to the application of EU competition law and outlines the tests which have evolved from Court of Justice decisions to determine whether the Commission has extraterritorial jurisdiction. The single economic entity doctrine, the implementation doctrine and the qualified effects doctrine are all outlined. The implications for antitrust damage claims are also considered.
This Practice Note focuses on the pension aspects of outsourcing in the private sector. It outlines the extent to which the pension rights of transferring employees transfer to the supplier on an outsourcing, taking account of reg 10 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), SI 2006/246 and the Beckmann case law. It also covers the minimum statutory requirements in relation to transferring employees, the consultation obligations under TUPE and the outsourcing risks to customers and suppliers.
Parent companies risk being targeted for the antitrust violations of its subsidiaries. This Practice Note details the legal foundation and rationale underlying parental company liability for antitrust infringements. The Practice Note explores case law on the scope of the concept and its application, for example, to financial investors and joint ventures. Also, its practical impact for companies in regard to leniency and potential fines.
This Practice Note examines the key terms of the credit arrangements in a typical prepayment finance transaction. It considers provisions in the prepayment contract and the offtaker loan agreement
This Practice Note explains the structure of a typical prepayment finance facility. It considers the role of the producer/exporter, the lender and the buyer/offtaker and the contractual structure of the financing arrangements (ie the prepayment contract and the offtaker loan agreement). It also covers risk apportionment between the lender and the offtaker and insurance of the prepayment contract.
This Practice Note covers the key issues to consider when taking security in a typical prepayment finance transaction, including (1) choice of law, (2) security in support of a prepayment contract and (3) security in support of an offtaker loan agreement (assignment or charge of the prepayment contract and any associated security rights, security over the collection account and security over the offtaker’s rights under its insurance policy).
EU competition law seeks to strike a balance between effective enforcement and an undertakings’ rights of defence. This Practice Note explores aspects of the rights of defence, the privilege against self-incrimination, the right to be heard, the right to be assisted by legal counsel and the right to good administration in relation to investigations carried out by the European Commission. Due process concerns arising out of the EU Charter of Fundamental Rights and the European Convention of Human Rights are also investigated.
The principle of economic continuity may lead to an acquiring business being liable for an infringement of EU competition law committed by an earlier operator. This Practice Note explores the scope of the principle of economic continuity as set by the EU courts. The circumstances when there is a risk of economic continuity applying are detailed, for example, where there is an intra-group transfer of the infringing business prior to an acquisition.
This Practice Note looks at the Financial Services Compensation Scheme (FSCS) in the context of pensions. In particular, it covers what the FSCS is, what and who it covers, the extent to which pension schemes are covered, the compensation payable, the qualifying conditions for compensation, the process for making a compensation claim and future changes to the FSCS levy and level of compensation.
This Practice Note explains the extent to which the pension rights of transferring employees transfer on a private sector outsourcing, in the light of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and relevant case law (eg Beckmann, Martin, Procter & Gamble). This Practice Note also looks at contractual ways of dealing with transferring rights, related employee communications and post-transfer employer obligations.
This Practice Note discusses the RBS Rights Issue Litigation, disclosure of the identity of third-party funders and the existence of After the Event (ATE) insurance. ATE insurance is insurance that covers the legal costs and expenses involved in litigation. It can be used in any type of litigation and by either a claimant or a defendant. However, in practice, ATE insurance is primarily used by claimants. In this case, the High Court set out important principles with respect to the circumstances in which the court may order disclosure of the identity of third-party funders and details of ATE insurance. The question was whether the defendants sought to invoke a case management power in aid of the proportionate, expeditious and efficient management of the proceedings, or whether they were in reality seeking disclosure with a view to enforcement or some other objective. The judge concluded that it would be inappropriate to make the order for disclosure of the ATE policy in this case, finding that the defendants’ primary objective was enforcement.
This Practice Note offers guidance on funding civil litigation in Scotland. It provides an overview of the background to the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (sometimes referred to as the Civil Litigation Act 2018 or CL(EGP)(S)A 2018), which implemented many of the recommendations made in the Taylor Report and gives an overview of the funding changes which have been brought into force. It covers speculative actions and success fee arrangements (SFAs); damages based agreements (DBAs); , the funding implications of various other measures in relation to expenses and the funding implications of the new group procedure (permitting class actions for the first time in Scottish civil litigation). Finally, it offers some practical considerations when funding Scottish civil litigation.
This Practice Note offers guidance on group proceedings in Scotland, available since 31 July 2020, under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 and the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Group Proceedings) 2020.
This Practice Note, produced in partnership with Gurbinder Grewal, Ian Fox and Michael Wright of Dentons UK and Middle East LLP, gives guidance on insolvency in the construction industry. It considers the parties to a construction project, common procurement methods and key contract documents, all of which can be relevant to consider when advising a client that is a party to a construction contract where the other party is in financial difficulties. It also covers contractual protections to look out for and considers steps that can be taken, such as the contractual right to terminate where a contractor or employer has become insolvent. This Practice Note considers disputes, which often arise where one party is in financial difficulty, and the ability of parties to use the statutory or contractual right to adjudicate to resolve disputes in the context of a company in liquidation or administration.
This Practice Note offers guidance on the system of judicial expenses in Scotland’s upper and lower courts (the Court of Session and the Sheriff Court) both at first instance and at appeal (in the Inner House of the Court of Session and the Sheriff Appeal Court). In doing so, it covers, among other things: the principles guiding the courts in making awards of expenses; the role of the auditors of court; the process and bases of taxation; modification and disallowance of expenses; the treatment of outlays and additional fees; interaction with the Legal Aid system and speculative actions (CFAs and DBAs); the summary assessment of expenses; extra-judicial expenses; and personal injury claims (QOCS). It also considers some anticipated changes to judicial expenses and taxation.
This Practice Note sets out the UK tax considerations for both a seller and a buyer on the sale and purchase of a limited company special purpose vehicle (SPV) holding a commercial UK property. Specifically, it focuses on the differences between acquiring the shares in an SPV, rather than the underlying property asset, the consequences for the seller on the disposal of shares in the SPV and the issues that will be relevant for a buyer and that a buyer should address in its tax due diligence on the SPV.
This Practice Note, produced in partnership with Karen Jacobs of Dentons, considers what the equitable doctrine of marshalling is, a guarantor’s liability, the meaning of a debt, cases looking at marshalling and the practical implications.
This Practice Note outlines the Scottish procedure for obtaining a civil recovery order under section 244 of the Proceeds of Crime Act 2002. It considers what civil recovery orders are and when they can be obtained, what is and what is not recoverable property, interim administration orders and prohibitory property orders (PPOs), together with PPO receivers.
This Practice Note outlines the confiscation procedure contained in the Proceeds of Crime Act 2002 (POCA 2002) insofar as it is applicable to Scotland. It covers the statutory regime applicable to confiscation in Scotland, contained within POCA 2002, Pt 3, including: when a confiscation order can be made under the Scottish provisions of POCA 2002, s 92, how the court makes the confiscation order, postponement of confiscation proceedings, enforcement including the appointment of enforcement administrators, the treatment of the family home in confiscation proceedings in Scotland, the time to pay provisions and restraint orders.
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