GLOSSARY

Affirmation definition

What does Affirmation mean?

A non-religious alternative to the oath sworn by someone about to give evidence in court or swearing a statement.

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Affirmation

Affirmation is an indication of the intention to continue with a contract. Affirmation may arise in the case of:•a repudiatory breach of contract, or•a misrepresentation which entitles the innocent party to rescind the contractThis Practice Note focuses on affirmation in the event of repudiatory breach. For information on affirmation in the context of misrepresentation, see Affirmation where other remedies are available below.Affirmation and repudiatory breachA repudiatory breach is a breach of contract that goes to the very core of the contract entitling the innocent party to treat the contract as being disregarded and to refuse to be bound by its terms. For more information, see Practice Note: Repudiation.Where there is a repudiatory breach of contract, the innocent party has the following options:•accept the repudiatory breach, treat the contract as at an end and seek damages, or•affirm the contract and seek damages•waive the breach by the defaulting party altogether, accept the defaulting party’s performance of the contract and lose its right to claim damagesAnticipatory repudiatory breachThe same options are available to an innocent party in the case of anticipatory repudiatory breach. An anticipatory breach occurs where one of the parties declares to the other, before the time for performance but after conclusion of the contract, their intention not to perform their contractual obligations. Not every declaration that a party will not

Verification of documents and information

Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by procedural changes in response to the COVID-19 outbreak. For updates on key developments and related practical guidance on the implications for lawyers, see: Coronavirus (COVID-19) toolkit.This Practice Note covers how information contained in a document or statement made by or on behalf of a person, can be relied on where there is a requirement to validate its authenticity in a commercial context. There are a number of ways to validate information and documents and this Practice Note explains when statutory declarations, oaths, affirmations and affidavits may be used; how to check that these have been correctly prepared, and includes guidance for practitioners when using these methods of validation. This Practice Note looks at the requirements for the following:•Statutory declarations•Oaths•Affirmations•Affidavits•Formalities for administering statutory declarations, oaths, affirmations and affidavits•Statutory declarations and affidavits out of jurisdictionFor information on notaries, their purpose, steps required to notarise a document and the meaning of legalisation, see Practice Note: Notaries and notarisation.For guidance on certified copies, including what a certified copy is, when is a certified copy required, who can certify a document, what format the certification should take, use of certified copies internationally and their use in evidence, see Practice Note: Certified copy requirements in commercial transactions.We have produced

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Procedural order for a remote hearing in international arbitration

Procedural order for a remote hearing in international arbitration PROCEDURAL ORDER NO. [insert number] Having considered the parties’ submissions, the Tribunal orders as follows: 1 Hearing by video-conference 1.1 The [insert hearing description] (the Hearing) shall be conducted by video-conference, using [insert name of video-conferencing platform] as the video-conferencing platform (the Platform). The Tribunal considers that this is a reasonable alternative to an in-person hearing [eg, in light of the coronavirus (COVID-19) pandemic, lockdown measures, social distancing orders and travel limitations.] It will provide the parties with a fair and reasonable opportunity to be heard and allow the arbitration to proceed in accordance with [insert reference to any duties set out in the applicable rules of arbitration or under the arbitral law of the seat to conduct proceedings expeditiously, efficiently and without unnecessary delay]. 2 [Prior directions concerning the Hearing] 2.1 [This Procedural Order supersedes [insert references to any prior directions to the extent inconsistent with this Procedural Order or no longer applicable].] 2.2 [[Insert references to any provisions of prior Procedural Orders or other directions by the Tribunal concerning the Hearing that are to continue to apply] shall continue to apply.] 3 Hosting [and technical support] 3.1 [[The institutional case manager/tribunal secretary/case monitor/other person] shall act as the host for the Hearing (the Host). The Host shall liaise with the Tribunal and parties to ensure that the Hearing is held in accordance with

Procedural Order for directions following preliminary meeting in arbitration

Procedural Order for directions following preliminary meeting in arbitration PROCEDURAL ORDER NO. [1] Having heard representatives for both the [Claimant OR Claimants] and the [Respondent OR Respondents] (the Parties) at the preliminary meeting held on [date], the Tribunal hereby orders that: 1 Applicable arbitration rules 1.1 This arbitration shall be governed by [insert applicable arbitration rules] in force as of [insert date]. 1.2 The Parties and Tribunal shall seek guidance from, but shall not be bound by, the IBA rules on the Taking of Evidence in International Arbitration (the IBA Rules), subject to the Tribunal’s discretion to control the procedural conduct of the arbitration. 1.3 [[If appropriate, include a statement on the applicable law of the substantive dispute and/or the arbitration].] 2 Seat and language of the arbitration 2.1 The seat of arbitration is [insert place]. Meetings and hearings may take place at other locations if so decided by the Tribunal after consultation with the Parties. 2.2 The language of the arbitration is [insert language]. [If necessary, specify whether translation is needed and how it should be provided]. [ [[Insert timetable for applications already made]] ] 3 Procedural directions and timetable 3.1 The President of the Tribunal shall be empowered to give procedural directions and rulings on behalf of the Tribunal, after consultation with their co-arbitrators. 3.2 The Parties shall comply with all directions and rulings given by the Tribunal. 3.3 The Tribunal shall set time limits in a timetable (the

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A property is owned by a company in respect of which the two leaseholders are directors. It has been discovered that the previous tenant of the first floor flat did not enter into a licence for alterations when they undertook works for a loft extension in 2012. The lease states that such works can only be undertaken following a licence for alterations being entered into with consent not to be unreasonably withheld. The roof is the property of the freehold, not the first floor tenant. The works were undertaken by the previous tenant. Is the new tenant able to request that a retrospective licence for alterations is entered into and a premium paid?

A property is owned by a company in respect of which the two leaseholders are directors. It has been discovered that the previous tenant of the first floor flat did not enter into a licence for alterations when they undertook works for a loft extension in 2012. The lease states that such works can only be undertaken following a licence for alterations being entered into with consent not to be unreasonably withheld. The roof is the property of the freehold, not the first floor tenant. The works were undertaken by the previous tenant. Is the new tenant able to request that a retrospective licence for alterations is entered into and a premium paid? Loft extension In the absence of an express provision in the lease (which is rare), a landlord has an absolute right to refuse consent to alterations outside the demise. There are various remedies for the unauthorised loft extension which, may be available to the landlord and/or neighbouring leaseholder, including potentially trespass and/or nuisance—in respect of which, see: • Q&A: What remedies are available for a tenant whose neighbour has constructed a terrace over the tenant’s flat roof? • Practice Notes: Nuisance—establishing a claim for private nuisance and Private nuisance—general principles • Practice Notes: Trespass—claims and defences and Trespass—remedies The landlord may also have had the right to forfeit the lease, although it seems likely, on the facts, that that

In an instance whereby a lessor, following a request by the lessee, declines to provide consent for alterations to be carried out to a leasehold premises, in line with the covenants contained within the lease, would the lessor prejudice their right to issue forfeiture proceedings if they were to offer to provide consent in exchange for varying the lease to increase the yearly ground rent payable? Following on from this, if the lessor issued forfeiture proceedings, on the basis that a limited company own the freehold title, would the directors and shareholders be potentially liable for costs pursuant to a non-party costs order or a security for costs order?

In an instance whereby a lessor, following a request by the lessee, declines to provide consent for alterations to be carried out to a leasehold premises, in line with the covenants contained within the lease, would the lessor prejudice their right to issue forfeiture proceedings if they were to offer to provide consent in exchange for varying the lease to increase the yearly ground rent payable? Following on from this, if the lessor issued forfeiture proceedings, on the basis that a limited company own the freehold title, would the directors and shareholders be potentially liable for costs pursuant to a non-party costs order or a security for costs order? Consent for alterations We note from this Q&A that the landlord was entitled to refuse consent under the lease covenants, and we assume that the proposed alteration is not an 'improvement' (whereby under section 19(2) of the Landlord and Tenant Act 1927 (LTA 1927) the alterations covenant is deemed to be subject to a proviso that such consent cannot be unreasonably withheld). For more information, see: Alterations and improvements for property disputes lawyers—overview. Waiver of right to forfeit Unless and until there is a breach of the lease giving rise to the right to forfeit, there is no right to waive. If, however, the alterations have been undertaken without consent in breach of the lease, and the lease provides that this

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Dispute Resolution weekly highlights—14 July 2022

This week’s edition of Dispute Resolution weekly highlights includes: analysis of a number of key DR developments and key judicial decisions including the Court of Appeal decisions in both Re Fundão Dam Disaster (Abuse of process) and MDW Holdings Ltd v Norvill (principles for determining damages) as well as D’Aloia v Binance Holdings (service by airdrop) and Simon v Taché (construction of the Withdrawal Agreement for jurisdiction); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.

Commercial weekly highlights—14 July 2022

This week’s edition of Commercial weekly highlights includes: news of the publication of the finalised guidance to accompany the Vertical Agreements Block Exemption Order (VABEO) by the Competition and Markets Authority, analysis of the Court of Appeal judgment in Dwyer (UK Franchising) Ltd v Fredbar Ltd on the enforceability of restrictive covenants in a franchise agreement, analysis of the High Court judgment in DD Classics Ltd v Chen on the principles of contract law relating to waiver and affirmation, and a closer look at the regulatory landscape surrounding the use of bot technologies.

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