Equity derivatives—France—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to equity derivatives in France published as part of the Lexology Getting the Deal Through series by Law Business Research (published: March 2020). Authors: Latham & Watkins LLP—Thomas Vogel; Suzana Sava-Montanari 1. Other than transactions between dealers, what are the most typical types of over-the-counter (OTC) equity derivatives transactions and what are the common uses of these transactions? The market for OTC derivatives transactions in France is well established and equity derivative products are routinely used in the implementation of stake-building transactions, equity price risk hedging strategies and share repurchase schemes. Typical equity derivatives products used by issuers on the French market include (but are not limited to): • call options, put options and total return swaps to hedge equity price risks on a bespoke basis; • funded collar in the context of the leveraged acquisition of a stake in a publicly listed company involving an embedded hedge to the market price of the equity purchase (often on a tranched basis); • unfunded collar in the context of the disposal of a stake in a publicly listed company involving an embedded hedge to the market price of the equity disposal (often on a tranched basis); • prepaid equity forward in the context of share buy-backs involving a forward transaction that is settled on the basis of the discounted volume-weighted average price of
Preparing manual PDF electronic bundles This Practice Note provides guidance on preparing manual PDF bundles, similar to those required by Practice Direction 51O, the Protocol and Supreme Court Practice Direction 14. The process for uploading documents to specialised trial management software may be different. It should be read in conjunction with Practice Note: Electronic bundles in civil proceedings. With the kind permission of Blake Hawthorne, his ‘Guide to Creating Electronic Appellate Briefs, Blake A. Hawthorne, Supreme Court of Texas’ dated 1 January 2019, has been used as a starting point for this guidance on preparing manual electronic bundles for use in proceedings in England and Wales. How to prepare PDF bundles—five basic steps There are five basic steps to create an electronic bundle which will be as effective and easy to use as possible: • Convert your submissions from the original word processing document, eg Microsoft Word, directly to PDF. Unless it is unavoidable, do not scan a document to create a PDF • Convert any exhibits to PDF. Do not scan exhibits that are available in electronic format, such as judgments, authorities or orders • Combine the submission and any exhibits together into one PDF file • Make any scanned materials searchable using optical character recognition (OCR) software like Adobe Acrobat • Create bookmarks for any documents contained in the exhibit Tools Word processor The primary tool for creating an electronic bundle is
Tier 1 (Investor): investment requirements for pre-6 November 2014 Rules applicants at indefinite leave to remain This Practice Note looks at the eligibility requirements in relation to money and investments that will be relevant for a Tier 1 (Investor) migrant applying for indefinite leave to remain, where their last leave was granted under the pre-6 November 2014 Immigration Rules covering the category and they are applying before 6 April 2022. This includes what investments will qualify (including relevant restrictions), how the qualifying investments should be maintained, and the evidence needed to show that the qualifying investments and, if relevant, any balancing funds have been maintained over the relevant specified continuous period. It should be read in conjunction with Practice Note: Tier 1 (Investor): applying for indefinite leave to remain. The same requirements will apply where an applicant in this situation misses the 6 April 2022 deadline. As this route was closed to any further initial applications on 17 February 2022, through Statement of Changes in Immigration Rules CP 632, in part due to the concerns the route facilitated the transfer of illicitly obtained wealth, extension and settlement applications may face increasingly high levels of scrutiny. For further information, see: LNB News 17/02/2022 76. Investment within three months of the specified date If a person wishes to rely upon the date of first entry after being granted entry clearance,
Interim injunctions—cross-undertakings in damages This Practice Note provides guidance on the interpretation and application of the relevant provisions of the CPR. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions—see further Court specific guidance below. In particular, this Practice Note provides guidance on the undertaking in damages that must be given by an applicant seeking an interim injunction. For guidance on undertakings in interim injunctions generally, see Practice Note: Interim injunctions—undertakings. What is the cross-undertaking in damages and when is it given? Applicants for an interim injunction are required to give a particular undertaking to the court in all but a handful of circumstances. This undertaking is referred to by different names by the courts: • ‘the usual undertaking’ (for example, Tucker v New Brunswick Trading Co of London at page 252) • ‘undertaking as to damages’ (for example, Hoffmann-La Roche v Sos For Trade and Industry at page 1149) • ‘cross-undertaking in damages’ (for example, Hone v Abbey Forwarding at para ) • simply ‘cross-undertaking’ (for example, Financial Services Authority v Sinaloa Gold plc at para ) Regardless of the precise name used, the reference is to an undertaking that, if the court later finds that the interim injunction had been wrongly granted and that the respondent suffered loss as a result, the applicant will comply with any order the court
Statement of Changes in Immigration Rules, HC 693—analysis [Archived] This analysis covers the main changes to the Immigration Rules (the Rules) set out in HC 693 that are likely to be of most interest to business immigration advisers. It is possible to navigate to specific topics quickly using the Contents bar at the bottom of the page. HC 693 was issued on 16 October 2014 and covers a wide range of new measures including: • the introduction of new procedural rules and Appendix AR, which covers the administrative review (AR) procedure which replaces appeal rights for Tier 4 students and their family members, who have not made a human rights or protection claim • substantive changes to the Tier 1 (Investor) category, further to the government's consideration of a related report from the Migration Advisory Committee which was published earlier in the year • what many commentators are calling the 'final death knell' of the Points-Based System (PBS), with the introduction of genuineness and related subjective tests into various of the remaining PBS categories that were previously unaffected • specific provisions to deal with suspected fraud in relation to English-language testing in relation to applications for limited leave under Appendix FM and Part 8 and for settlement where Appendix KoLL applies (where there is also a similar provision in relation to the Life in the UK test) • numerous minor technical
Pharmaceutical trade marks and parallel imports Pharmaceutical trade marks: regulation and naming procedures In most fields of business, trade mark owners have a relatively free hand in selecting the brands they use to market their goods or services. In general, where there is no risk of confusion on the part of the relevant consumer with an earlier brand, a trade mark will be free for use. This is not the case with respect to trade marks for pharmaceutical products, which are subject to an extra layer of regulation in order to protect public health. Pharmaceutical trade marks can only be put into commercial use once they have been granted a marketing authorisation (MA). In determining whether to grant an MA, the competent authorities will decide whether the trade mark poses a risk to public health. This decision is not reached through a classical trade mark infringement assessment, but instead centres on the potential for medication errors which could lead to serious health risks. The various considerations applicable to pharmaceutical trade marks will impact in different ways on the selection of the candidate marks. Where identical or confusingly similar trade marks are used for the same or related medical indication, there is a trade mark conflict. Where a trade mark is likely to cause confusion in print, handwriting or speech with the name of another medicinal product, there is
An introduction to the WTO’s Agreement on Customs Valuation This Practice Note provides practical guidance on the WTO’s Customs Valuation Agreement. It provides guidance on the methods of valuating imported goods for customs purposes. It also provides practical guidance on the right to appeal a customs valuation and the right to have the imported goods released pending a customs valuation determination. Introduction The General Agreement on Tariffs and Trade (GATT) 1947 contained the general principles for customs valuation. Article VII(2) required that the value for customs purposes must be based on the actual value of the imported good. It prohibited any valuation based on the value of goods of national origin or on arbitrary or fictitious values. It further provided a definition of what constituted the ‘actual value’ of an imported good. However, it still permitted the use of differing methods of valuation goods for customs purposes. In the Tokyo Round of negotiations, Member States agreed to the Agreement on Implementation of Article VII of the GATT 1947. This agreement was concluded in 1979 and the valuation for customs purposes was based on the ‘transaction value’ of the goods. The actual price paid or payable for the imported products would be the basis for customs valuation. The Tokyo Round agreement has been replaced by the WTO Agreement on Implementation of Article VII of the GATT 1994 (the Customs
Life sciences—Turkey—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to life sciences in Turkey published as part of the Lexology Getting the Deal Through series by Law Business Research (published: August 2021). Authors: Gün + Partners—Özge Atılgan Karakulak; Dicle Doğan 1. How is healthcare in your jurisdiction organised? The healthcare system is governed principally by the Fundamental Law on Healthcare Services No. 3,359, which furnishes the Ministry of Health (MoH) with the authority to issue healthcare-related regulations and establish a healthcare system enabling each and every person living in Turkey to have equal and equitable access to the healthcare system. The regulatory authority is the MoH and its subsidiaries. The MoH is responsible for establishing hospitals and public health institutions to provide healthcare services to the public. In addition to public hospitals and healthcare institutions, universities with medical faculties may also establish hospitals under the authority granted to universities by the Higher Education Law No. 2,547, and this system is also quite common in Turkey. Private hospitals and healthcare institutions are also common in places where the purchasing power of the population is high. There was a fundamental change in the structure of the MoH in 2011. The authorities of the General Directorate of Pharmaceuticals and Pharmacy of the MoH have been transferred to the Turkish Medicines and Medical Devices Agency (Agency). In line with the amendment, the
Making an application under the EU Settlement Scheme Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the coronavirus (COVID-19) outbreak. For updates and links to useful information, news and news analysis in relation to the implications for immigration lawyers, see Practice Note: Coronavirus (COVID-19) immigration resources. This Practice Note looks at the procedure for submitting applications for settled and pre-settled status under the EU Settlement Scheme (the Scheme). It covers: • the requirement to submit a ‘valid’ application • application procedures for applying for immigration permission under the Scheme (for European Economic Area (EEA) citizens and non-EEA citizens, inside and outside the UK) • the Home Office’s ‘EU Exit: ID Document Check’ app • the evidential requirements (these relate to identity and nationality, residence and the additional documents required for family members) • authorisation for a legal representative to liaise with the Home Office in relation to the application, and • the requirement to keep the Home Office updated in relation to certain details following grant of leave The Practice Note also looks at the application process for family permit applications from outside the UK. For the purpose of this Practice Note, EEA citizens are defined as nationals of all remaining 27 EU Member States (excluding the UK), as well as Liechtenstein, Norway and Iceland and Switzerland. Although Switzerland is not a member of the EEA,
Insurance litigation—France—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to insurance litigation in France published as part of the Lexology Getting the Deal Through series by Law Business Research (published: March 2022). Authors: Kennedys Law LLP—Nicolas Bouckaert; Aurélia Cadain 1. In what fora are insurance disputes litigated? In France, insurance disputes are litigated in the following fora: • first instance civil courts; • first instance commercial courts; • courts of appeal; and • the French Supreme Court (the Court of Cassation). To identify which of the above fora has jurisdiction at first instance it is necessary to verify the identity of the parties (whether the parties are deemed to be commercial or civil entities). If all the parties are commercial entities, the dispute must be brought before the commercial court that has territorial jurisdiction, regardless of the amount of the claim. However, commercial entities can choose to bring their disputes before another commercial court or indeed a civil court, provided they entered into a valid choice of jurisdiction clause. If all the parties involved are civil entities, the dispute must be brought before civil courts. Note that since decree No. 2019-912, which came into force on 1 January 2020, the organisation of French first instance civil courts has been simplified: before the 1 January 2020, claims brought before civil courts would either be brought before the County Court or the High
Discover our 3152 Practice Notes on Option
Option 1—deed executed by an individual general partner in the presence of a witness Executed as a deed by [insert name of limited partnership] acting by [insert name of general partner] in the presence of: .................................................[signature of general partner]General Partner .................................................[signature of witness]
Property warranties and definitions to include in a short-form asset purchase agreement 1 Definitions In this Agreement, unless the context otherwise requires: Encumbrance means any mortgage, claim, charge (fixed or floating), pledge, lien, hypothecation, guarantee, right of set-off, trust, assignment, right of first refusal, right of pre-emption, option, restriction or other encumbrance or any legal or equitable third party right or interest including any security interest of any kind or any type of preferential arrangement (or any like agreement or arrangement creating any of the same or having similar effect) and Encumbrances means more than one of them; Freehold Properties means the freehold properties, described in Part [insert number] of Schedule [insert number] and Freehold Property means any one of them; Lease means the lease and any supplemental documents under which any Leasehold Property is held, further details of which are set out in Part [insert number] of Schedule [insert number] and Leases means more than one of them; Leasehold Properties means the leasehold properties described in Part [insert number] of Schedule [insert number] and Leasehold Property means any one of them; Properties means the Freehold Properties and the Leasehold Properties described in the Schedule [insert number] and the Property means any one of
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1 Asbestos in buildings 1.1 As soon as reasonably practicable after the Completion Date the Seller and the Buyer must jointly instruct a UKAS accredited or ABICS certified asbestos surveyor to: 1.1.1 undertake an asbestos management survey at the Property (which will also form an asbestos register) to assess what asbestos remedial work if any is required to make the Property compliant with the Control of Asbestos Regulations 2012, SI 2012/632; and 1.1.2 prepare an asbestos management plan for the Property. 1.2 The Seller agrees to reimburse the Buyer [(subject to a maximum sum of [insert number])] for the costs and expenses relating to the asbestos survey/register, asbestos management plan and any asbestos remedial work recommended by the survey (Asbestos Works) within 14 days of the Buyer providing a relevant invoice to the Seller indicating that the Asbestos Works have been completed.
Option 1—deed executed by a company under its common seal (model articles, where the authorised signatory is an individual) Executed as a deed by [insert name of company] by affixing its common seal and by the signature of [insert name of director/secretary/other authorised person], [director OR secretary OR authorised signatory], in the presence of: [affix the common seal of the company].................................................[signature of director/secretary/authorised person] [Director OR Secretary OR Authorised signatory] .................................................[signature of witness] [insert name of witness] [insert witness’s address] [insert witness’s occupation] Option 2—deed executed by a company under its common seal (model articles, where the signing director/secretary is itself a corporate) Executed as a deed by [insert name of executing company] by affixing its common seal and by the signature of [insert name of authorised signatory of corporate director/secretary] duly authorised by [name of corporate director/secretary], [director OR secretary], to sign on its behalf a document to which
Option 1—deed executed by administrator under the company’s common seal Executed as a deed by affixing the common seal of[insert name of company] (in administration) acting by
Option 1 Signed as a deed on behalf of the [trustees OR transferors] by [insert name of trustee] and [insert name of trustee], two of their number, under an authority conferred
EMI share option scheme rules Rules of the [insert name of company granting EMI options] enterprise management incentives Scheme 1 Definitions and interpretation 1.1 Definitions In this Scheme, except where the context otherwise requires, the words and expressions set out below will bear the following meanings, namely: Acquiring Company • has the meaning ascribed to it in paragraph 39 of Schedule 5; Agreement • means the agreement entered into by an Eligible Employee, the Company and, where different, the person which grants an Option, in such form as the Directors will from time to time determine; Closed Period • means a period when the Directors are prohibited from dealing in shares under the Market Abuse Regulation (Retained Regulation (EU) 596/2014) or any other regulation, act, guidance or code on transactions in securities which applies to the Company, including any share dealing code of the Company; Committed Time • has the meaning given in paragraph 26 of Schedule 5; Company • [name of company granting options] (Company No [insert registered number]); Control • has the meaning ascribed to it in Schedule 5 and derivative terms shall be construed accordingly; Date of Grant • in respect of the Option, means the date on which the Agreement is entered into by all the relevant parties; Directors • means the board of directors of the Company from time to time or a duly authorised committee of such directors; Disqualifying Event • means the first to occur of an
Notice of exercise of option The Company Secretary [insert date of letter] [insert name of company who granted the option] (Company) [[insert address of company that granted the option]] Form of notice of exercise From: [insert name of option holder] 1 Exercise of the Option I refer to the option granted to me on [insert date on which the share option was originally granted] over [insert class and nominal value of shares under option] shares in the Company (Shares) [under the terms of the [insert name of plan under which option was granted] (Plan) OR by a deed entered into by the Company on that date (Deed)] (Option), and hereby give notice that I am exercising the Option in respect of [insert number of shares being exercised] Shares at the exercise price of £[insert exercise price per share as in the original grant documentation] per Share (Exercise price) and request the allotment or transfer to me of those Shares in accordance with the terms of the [Plan OR Deed OR and the Memorandum and Articles of Association of the Company. I request that you place my name on the register of members in respect of those Shares and I hereby confirm that the above exercise is subject to the remainder of this Notice. [I enclose the share option agreement OR Deed OR share option
EMI options—FAQs for employees What is the [insert name of EMI scheme]? [insert name of company establishing EMI scheme] (the Company) has established the [insert name of EMI scheme] scheme (EMI Scheme). Pursuant to the EMI Scheme, the Company can grant enterprise management incentives (EMI) qualifying share options and also unapproved share options. Unless otherwise stated in this paper, you have been granted EMI qualifying share options. These FAQs outline the key provisions of the EMI Scheme and explain some of the tax benefits. The full details of the EMI Scheme are set out in the option grant documentation. If there is any contradiction or discrepancy between the EMI Scheme rules and/or option agreement and these FAQs, the plan rules take priority. What are EMI options? The EMI Scheme pursuant to which your option has been granted is a highly flexible and tax-efficient scheme designed specifically for small/medium-sized businesses and it is subject to specific legislation. You have been selected to participate in the EMI Scheme and have been granted an option to buy the set number of shares (as specified under your option agreement) for a fixed price. Your option is designed (but not guaranteed) to qualify as an EMI option, which can offer you significant tax advantages in relation to any gains realised when you exercise the option and sell the resultant shares (see tax treatment below). How
Covering letter to unapproved option holders for options granted pursuant to unapproved share option rules and agreement [insert date of letter] [insert name of employee] [insert address of employee] Dear [insert name of employee] [insert name of Company] (Company) Option to be granted under the [insert name of unapproved share option scheme] (Scheme) I am delighted to notify you that the directors of the Company have approved the grant of an option to you under the Scheme (Option). I enclose a copy of the rules of the Scheme and the option agreement, which needs to be executed by you and the Company in order for the grant of the Option to take effect. Summary of the Option’s terms The Option will entitle you to purchase [insert maximum number and type of shares which can be exercised pursuant to the option agreement] shares in the Company at a price of [insert exercise price of shares] per share [if, broadly, there is an ‘Exit’ event of the Company (which is broadly a takeover of the
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Under the Creative Worker route, can the individual (outside of the UK) be self-employed and simply paid a fee rather than a salary or do they need to be employed by a sponsor? The Practice Note: Sponsoring a Creative Worker confirms that ‘[t]o sponsor creative artists through the Creative Worker route, the sponsor must be operating or intending to operate in the creative sector. Examples of organisations that could sponsor a creative artist include a national body, event organiser, producer, venue, agent or other similar organisation. There does not need to be a direct employment relationship with the sponsor, but the sponsor must be willing to take on all of the relevant sponsor duties and responsibilities’. Where this applies, the sponsor may be subject to closer scrutiny and monitoring to ensure that the relevant sponsor duties can be met. See: Worker and Temporary Workers Sponsor Guidance, Sponsor a Creative Worker, Specific criteria for a Creative sponsor licence. The Immigration Rules provide that the Certificate of Sponsorship must confirm how much the worker will be paid, including any allowances, and that the arrangements will comply with the National Minimum Wage (Immigration Rules, Appendix Temporary Work—Creative Worker, para CRV 4.1(a)). Separately (Immigration Rules, Appendix Temporary Work—Creative Worker, para CRV 4.2), the sponsor: ‘...must ensure that: (a) the applicant complies with their relevant Code of Practice under Appendix Creative Workers Codes of
When an applicant has leave under Appendix FM of the Immigration Rules and their relationship with the British sponsor is breaking down, how can they protect their position and evidence an active role in their child’s life if the sponsoring partner is making an application for the child’s indefinite leave to remain after five years? What are the difficulties with making a leave to remain application on the basis of their relationship with a child and would the position change if the child is over the age of 18 (at the time of making the application)? It has been assumed, for the purpose of this Q&A, that the child in question is not the child of the British sponsor. If it were, it would, in the vast majority of cases, also be British, or have the option of registering as such under the British Nationality Act 1981. In this scenario, the applicant’s child would only be eligible to apply for indefinite leave to remain under Immigration Rules, Part 8, as Immigration Rules, Appendix FM only allows a child to apply for limited leave to remain. The applicant in these circumstances appears to be prevented from applying for indefinite leave to remain in the partner route. They would only have the option to apply for leave as a parent if they have a British, settled or otherwise
What are the rights of residuary beneficiaries to interim payments prior to the settling of any liability to IHT and must the PRs wait for the sale of assets before being liable to pay that IHT? Also, what are the rights of residuary beneficiaries to request information and dispute invoices raised by solicitor executors? The rights of residuary beneficiaries to interim payments prior to the settling of any liability to IHT Under section 44 of the Administration of Estates Act 1925 (AEA 1925), personal representatives (PRs) have at least a year from the date of death before beneficiaries can call on them to distribute any part of the estate. While the estate is being administered, the ownership in the deceased's unadministered assets lies in the PRs for the purposes of administration, without any distinction between legal and equitable interests. No beneficiary in the meantime, whether under the deceased's Will or intestacy has any proprietary interest in any particular asset comprised in the unadministered estate. The beneficiary's entitlement during the administration is to a chose in action, ie the right to require the deceased's estate to be duly administered. See section Beneficiaries' rights and remedies—Rights of beneficiaries during the administration of Practice Note: Beneficiaries' rights and remedies. See also Practice Note: Payment of legacies. A PR is however not bound to wait 12 months before he makes a distribution.
How will charities ensure that they are properly governed if trustees and staff are not able to work or meet in light of coronavirus (COVID-19)? Many charities will have board or general meetings scheduled over the coming months and be wondering what steps should be taken to observe social distancing measures and protect attendees, particularly those more at risk from coronavirus (COVID-19). Special rules apply to these meetings and will need to be taken into account. Formal meetings are, of course, only one (albeit an important) aspect of a charity’s operations. Outside formal meetings, staff may be able to work and meet remotely in order to keep services going. Where this is not possible, difficult decisions may have to be made about how best to protect a charity’s beneficiaries and reputation until restrictions around movement are eased. This Q&A is principally directed to charities which are structured as companies. Board decisions: one-off decisions where a meeting cannot be held If a decision is needed at short notice on a specific matter and the trustees are all in agreement, they may act informally where they are unanimous. This has been interpreted by the courts to mean that an agreement signed by all the directors of a company on different dates, and not as a board, is a contract binding the company. By analogy, a decision approved over email by all the
What are the key features of a Brexit SI? As part of the UK’s domestic preparation for Brexit, the government is introducing a range of primary and secondary legislation, including a significant volume of Brexit-related statutory instruments (Brexit SIs). Both primary and secondary legislation is required for various purposes in connection with Brexit, eg to: • amend provisions of EU-derived UK legislation and direct EU legislation the UK plans to preserve in domestic law after Brexit (retained EU law), which requires correction in anticipation of Brexit (so that it can operate effectively as part of UK law after Brexit) • implement new and revised domestic policy required as a result of Brexit (eg in areas such as immigration, tax, trade, nuclear and environmental policy), and also • reflect provisions of any Brexit-related international agreements enacted in UK law (including the Withdrawal Agreement) Brexit SIs made under the European Union (Withdrawal) Act 2018 The government is using its legislative powers under the European Union (Withdrawal) Act 2018 (EU(W)A 2018), and other primary legislation, to introduce hundreds of Brexit SIs across a wide range of policy areas in advance of exit day. The powers delegated under EU(W)A 2018 can be used to introduce Brexit SIs in advance of exit day for various purposes, including to correct legal ‘deficiencies’ expected to arise in domestic law in consequence of Brexit and the repeal of
If you agree with the defendant to serve the claim form (at the end of the four-month period) and agree to extend the time period for service of the particulars of claim and other supporting documents, can you make this agreement between the parties pursuant to CPR 2.11? If you are serving the claim form at the end of the four-month period, can you agree a 28-day extension pursuant to CPR 3.8 with the defendant for service of particulars of claim and other supporting documents? Time for service of the claim Under CPR 7.5(1), the claim form must be served before midnight on the calendar day four months after the date of issue of the claim form. By CPR 7.6, a claimant may apply for an order extending that four-month period by making an application before that period expires. All is not lost if the application is made after the four months, but the court must be satisfied that the application has been made promptly (CPR 7.6(3)). The particulars of claim, if they are not included within or served with the claim form, must be served within 14 days after service of the claim form but, in any event, no later than the latest time for serving the claim form, ie by the end of the four-month period from the date of issue (CPR 7.4). Agreeing an extension
Is there any guidance as to the appropriateness of defining ‘Control’ as either (a) in accordance with section 1124 of the Corporation Tax Act 2010, or as (b) the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company? The Drafting Notes to clause: Control definition state: ‘…two options are offered in the suggested definition of the term “control”. The first option is that this term is defined by reference to section 1124 of the Corporation Tax Act 2010; this is a comprehensive, but complex definition. The second option may be more appropriate for straightforward transactions.’ Often in commercial contracts, the term ‘change of control’ is construed by reference to the definition of ‘control’. Therefore, how complex the structure of the parties to the contract, the type of transaction being entered into, the intentions of the parties, the bargaining power of the parties, and the clause within which control is used will be a factor in determining which definition of control is appropriate in the circumstances. Consider also extending the definition of control to expressly capture affiliates, subsidiaries, holding companies or other members of the group, or to more specifically identify particular entities of the group. In which case, see Precedents: Affiliate definition, Subsidiary definition, Group definition,
A council is buying back land by agreement in relation to a possible compulsory purchase order. A seller is being paid the market value of their property as well as compensation in the form of disturbance payments and statutory loss. The seller does not want the amount set out in this way in the transaction documents but wants the full figure reflected in the TR1. How should this be reflected in the TR1, eg should option 1 in panel 8 be used or option 3 (other receipts). By using ‘other receipts’, would this have any effect on the stamp duty land tax payment? It is commonly the case that a local authority will seek to negotiate with landowners while a compulsory purchase order is being sought. The general compensatory principle is that the forced seller should be put in an equivalent position meaning that they are no worse off in financial terms after the acquisition than they were before, but also should be no better off. The heads of claim are usually the value of the land taken, any payment for
If the landlord agrees to refund annual rent paid in advance for the period after a break date (assuming the break is exercised), is it correct or appropriate that the landlord should also refund the VAT paid on that rent? We have assumed that this is a standard-rated lease, ie a lease under which the rent attracts value added tax (VAT). This would normally be the case where the landlord has exercised the option to tax and the option has not been disapplied. If the break clause in a lease provides that the landlord will refund any rent paid in advance for the period after a break date, then it will be a matter for negotiation whether the refund will extend to the VAT element of that payment. The landlord may be unwilling to refund the VAT
In whose name does a receiver, who is appointed over assets belonging to a company in administration, issue court proceedings against a debtor? Would it be in the name of the receiver acting as principal or as agent for the company in administration? Position of receiver A receiver generally acts as agent of the company (ie the mortgagor) in exercising its powers under the security document such as collecting income from and disposing of the assets in respect of which the receiver has been appointed. This agency relationship will be terminated upon the company being wound-up—see Thomas v Todd. In such a situation, the receiver does not automatically become the agent of the mortgagee (see Gosling v Gaskell) and if the receiver continues to act, he will do so as principal (rather than as agent of the mortgagor). For the avoidance of doubt, termination of the agency relationship between the receiver and company will not in itself terminate the receiver’s appointment. We are not aware of any specific authority on the effect of the company’s administration on the agency relationship between the receiver and company. However, the position under liquidation may be a helpful analogy. Once a compulsory winding-up order has been made or a voluntary winding-up has commenced and the receiver's agency has ended, the receiver does nonetheless retain certain powers. The receiver may still continue to
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Immigration analysis: James Perrott of Mayer Brown considers the sponsorship of au pairs and nannies under the Skilled Worker route including why the current Overseas Domestic Worker route is not suitable for families looking to bring them to the UK, who can sponsor them to work in the UK, situations where it might be possible for companies and practical tips.
Law360, Expert analysis: The Law Commission's recent recommendation of changes to corporate criminal law is a pragmatic attempt to address the practical shortcomings with the existing identification doctrine, and is likely to be welcomed by both companies and the agencies that would be enforcing it, say Alun Milford and Matthew Burn at Kingsley Napley.
Public Law analysis: The EU has launched legal action against the UK, following the government’s publication of its Northern Ireland Protocol Bill on 13 June 2022. What happens next?
MLex: The vexed issue of revamping the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR) emerged during the week commencing 13 June 2022 with a proposal by a senior EU official, but the path to changing the landmark rule's enforcement mechanism is fraught with controversy. The European Data Protection Supervisor (EDPS), Wojciech Wiewiórowski, has suggested more centralised oversight of Big Tech companies. Whether that means actually reforming the EU GDPR, or smoothing over procedural hurdles and boosting co-operation among data protection regulators, will be debated in the months to come.
This week's edition of Environment weekly highlights includes analysis on the announcement that trustees of large occupational pension schemes will be required to publicly disclose the way their investments are aligned with international standards on limiting global warming and the Department for Work and Pensions’ green pensions trial. In addition, this week, the Department for Business, Energy & Industrial Strategy published its response to the consultations on heat network zoning, cost recovery of heat networks regulation, and fusion energy proposals, the Chancery Lane Project published three new clauses for soils, renewable power and SMEs, the Scottish Government launched a consultation on its Biodiversity Strategy, it was confirmed that COP15 will go ahead in December 2022, and the Global Methane Pledge Energy Pathway was signed by the EU, the US and 11 other countries. We also published a new Practice Note, which provides guidance on the obligations imposed on manufacturers, importers and authorised representatives by GB ecodesign legislation.
This week's edition of Energy weekly highlights includes NAO’s report on the energy supplier market, BEIS’ guidance on round two of the Green Heat Network Fund, Ofgem‘s consultation on the OFTO End Of Tender Revenue Stream, and the EU’s adoption of the Global Methane Pledge Energy Pathway to reduce methane emissions in the oil and gas sector.
This week's edition of Share Incentives weekly highlights includes (1) HMRC’s Employment Related Securities Bulletin 43 regarding SAYE schemes and (2) a focus on executive pay as the AGM season continues.
This week's edition of Tax weekly highlights includes: (1) the publication of the Bill to enact the new energy profits levy on oil and gas profits, (2) HMRC increasing the interest rates for late payments of tax and (3) the OECD publishing responses to its consultation on tax certainty aspects of Amount A under Pillar One.
Employment analysis: Under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) it is unlawful for an employer to make an offer to a worker who is a member of an independent trade union which is recognised by that employer where (i) acceptance of that offer, together with other workers’ acceptance of offers, would have the prohibited result of the workers' terms of employment, or any of those terms, not being (or no longer being) determined by collective agreement negotiated by or on behalf of the union, and (ii) that was the employer’s sole or main purpose in making the offers. The employment tribunal in this case had been correct to find that a letter to employees notifying them of a pay increase was an offer rather than a unilateral promise or obligation and that the other parts of the test were also met on the facts. The purpose of TULR(C)A 1992, s 145B is to protect the rights enshrined in Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms and, since those rights are the same both North and South of the border, there are no relevant distinctions in this context based on the Scots Law of contract, according to the EAT.
Law360, London: Most British criminal barristers voting in a strike ballot conducted by the Criminal Bar Association (CBA) backed proposals for industrial action over demands for higher compensation for legal aid work, the professional body said 20 June 2022.
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