Advertising and marketing—USA—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to advertising and marketing in USA published as part of the Lexology Getting the Deal Through series by Law Business Research (published: April 2022). Authors: Crowell & Moring LLP—Roy Abernathy; Raija Horstman; Dalton Hughes; Emily Kappers; Amy Pauli 1. What are the principal statutes regulating advertising generally? Federal and state statutes regulate advertising in the United States. Federal At the federal level, several statutes regulate advertising, including the following: • The Federal Trade Commission Act prohibits 'unfair methods of competition', 'unfair or deceptive acts', and false advertisements (15 USC sections 41–58). • The Lanham Act prohibits false or misleading advertisements, such as those likely to cause deception or confusion between competitor products (15 USC section 1064). • The Federal Food, Drug, and Cosmetic Actprohibits false or misleading food, drug, medical device and cosmetic advertisements (21 USC sections 301–392). • Other context-specific statutes, such as the Truth in Lending Act (TILA), the Federal Alcohol Administration Act, the Federal Aviation Act, the Federal Cigarette Labeling and Advertising Act, and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). State States regulate advertising through generally applicable consumer protection statutes. Many states have adopted the Uniform Deceptive Trade Practices Act, which prohibits unfair or deceptive practices, such as misleading advertising. Some commonly litigated state consumer protection statutes include the following: • California'sUnfair Competition Law (California Business and Professions Code sections
Resolving derivatives disputes—key cases This Practice Note sets out certain key cases and associated analysis relevant to derivatives practitioners. The cases are divided by topic area and include: • Derivatives cases relating to capacity to enter into transactions • Derivatives cases relating to classification of swaps • Derivatives cases relating to wagering or gaming • Derivatives cases relating to constructing ISDA master agreements • Derivatives cases relating to payments and close-out amounts • Derivatives cases relating to disputes on jurisdiction • Derivatives cases relating to the mis-selling of derivatives or LIBOR manipulation • Derivatives cases relating to tax issues, and • Derivatives cases relating to regulatory issues Derivatives cases relating to capacity to enter into transactions Names of parties Judgment date Case summary Relevant analysis and articles Deutsche Bank AG London v Comune di Busto Arsizio  EWHC 2706 (Comm),  All ER (D) 51 (Oct) 12 October 2021 Defendant Italian local authority Comune di Busto Arsizio (Busto) argued in this case that it was not bound by the terms of a series of historical swap transactions it had entered into with Deutsche Bank in 2007 that had not proved beneficial to Busto, as it did not have the capacity to enter into them as a matter
Slovenia—cross border banking and finance guide Coronavirus (COVID-19): Existing financings/utilised debt Does debt documentation in your jurisdiction typically foresee termination rights for the lender upon the occurrence of a crisis? If so, are eg customary material adverse effect (MAC) provisions enforceable in such instance? Generally, yes. In addition to ‘LMA style’ precedents—which will contain a variation of the recommended MAC form—also ‘local form’ bank loan agreements typically foresee termination/acceleration/commitment cancelation rights in case of material adverse changes. In the case of ‘local form’ documents, MAC provisions tend to be phrased more broadly than the LMA precedent—most notably, sometimes referring to circumstances not affecting the borrower directly (eg general adverse movements in the economy)—but are, more often than not, linked to the borrower's ability to comply with the loan agreement. That said, the enforceability of MAC provisions—especially if formulated broadly/exercised by reference to circumstances external to the specific borrower—may have its limits and will need to be assessed on a case-by-case basis. In principle, lenders will be able to rely on MAC provisions where termination/acceleration is justifiable due to borrower-specific circumstances. On the other hand, it is not a given that MAC clauses can be enforced due to the occurrence of a crisis per se. Limited case law related to rebus sic stantibus/force majeure scenarios would appear to lean in favour of a specific-case-based approach and require that the
Private M&A—Canada—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to private manda in Canada published as part of the Lexology Getting the Deal Through series by Law Business Research (published: October 2021). Authors: Bennett Jones LLP—John M. Mercury; James T. McClary; Bryan C. Haynes; Ian C. Michael; Kristopher R. Hanc; Drew C. Broughton 1. How are acquisitions and disposals of privately owned companies, businesses or assets structured in your jurisdiction? What might a typical transaction process involve and how long does it usually take? Generally, a purchase and sale agreement is entered into to govern the acquisition or disposition of privately owned companies, businesses or assets. The sale of a business is commonly accomplished by way of a sale of shares or assets. Sellers often prefer share sales because of lower applicable tax rates on gains. Buyers often favour asset purchases because of the possibility of achieving tax benefits and excluding unwanted liabilities. Sellers of smaller 'Canadian-controlled private corporations' may also be able to utilise a (limited) lifetime capital gains exemption on a share sale in addition to the other benefits of a clean exit by way of a sale of shares and, as a result, typically prefer share transactions. Companies may also be combined by way of an amalgamation pursuant to the relevant corporate statute. Amalgamations must be approved by a super-majority vote of shareholders (generally
Private M&A—Malaysia—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to private manda in Malaysia published as part of the Lexology Getting the Deal Through series by Law Business Research (published: October 2021). Authors: Foong and Partners—Dato’ Foong Chee Meng; Tan Chien Li; Khor Wei Min; Vivian Chew Li Voon 1. How are acquisitions and disposals of privately owned companies, businesses or assets structured in your jurisdiction? What might a typical transaction process involve and how long does it usually take? An acquisition is commonly structured by way of: • an acquisition of shares in a company; or • an acquisition of a business or assets from a company. Typically, the process for an acquisition involves: • execution of preliminary agreements (eg, a memorandum of understanding, exclusivity agreement and confidentiality agreement) outlining the parties' understanding and principal terms of the transaction); • conduct of legal, financial and tax due diligence exercises by the buyer on the target company; • drafting and negotiation of definitive transaction documents; • execution of definitive transaction documents; and • satisfaction of conditions precedent and in some cases, an updated due diligence and completion of the acquisition. In general, an acquisition may take three to six months to complete. Notwithstanding, the length of time required to complete an acquisition may vary depending on factors such as the size of the target company, complexity of the transaction and time taken for the fulfilment
Road traffic accidents in the EU—jurisdiction and applicable law NOTE: The UK's departure from the EU has implications for practitioners considering road traffic accidents in the EU. See Practice Note: What does IP completion day mean for PI & Clinical Negligence claims? IP completion day is defined in the European Union (Withdrawal Agreement) Act 2020 as 11 pm on 31 December 2020. It is important for the practitioner to have an understanding of the changes to the relevant regulatory regimes brought about by the UK’s withdrawal from the EU and their impact on issues of jurisdiction and the applicable law. Brexit Jurisdiction The key legislation in connection with matters relating to jurisdiction following the UK’s departure from the EU and IP completion day is the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, SI 2019/479. These regulations had the effect of amending the Civil Jurisdiction and Judgments Act 1982 (CJJA 1982). Of most relevance is regulation 7: this provided for the relevant section of CJJA 1982, which gave the Brussels Conventions the force of law, to be omitted from IP completion day. The Withdrawal Agreement provided for the continued application of EU rules during the Brexit transition or implementation period. However, where proceedings are issued on or after 1 January 2021 Regulation (EU) 1215/2012,
Trust disputes—breach of trust It is a fact of life that beneficiaries and trustees fall out. Often this is due to misunderstandings but occasionally beneficiaries may consider proceedings either to restore a trust fund or obtain compensation on the basis that the trustees have exceeded their authority or failed to exercise their duty of care. Before taking those proceedings, those instructed to take action should consider a number of points, namely whether: • the act complained of is a breach of trust (or breach of fiduciary duty) • there is a quantifiable loss and a readily identifiable link from the breach to the loss • there is a commercial prospect of recovery from the trustee(s) • the claim is outside the limitation period • there is an exclusion clause that enables the trustee to escape liability • is the trustee likely to be granted relief • is the beneficiary guilty of acquiescence If the first four can be answered positively and the latter three negatively, there may be a justifiable claim. Breach of trust v breach of fiduciary duty There is a distinction between these two forms of breach. A breach of trust is the breach of duty imposed on a trustee by the trust instrument, by statute or through case law. It is an act or omission that is contrary to a trustee’s duties. A breach of fiduciary duty can be committed by not only trustees but
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 injunction'>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
Bringing a professional negligence claim based on the duty in contract, tort and equity Having established the existence of a ‘professional’ who may owe duties to their client, it is then necessary to consider the bases on which such duties may be founded. It may be that a claim against professional advisers may be based in contract, tort, equity or all three. Contractual relationship with the professional Can a professional negligence claim be brought based on the contractual relationship with the professional? In most cases, there will be a contract between the professional and the client, eg between a solicitor and their client, usually in the form of a ‘Retainer Letter’. There may be express or implied terms as to the performance of obligations under the contract and there may be attempts to limit or exclude liability for inadequate performance. Implied duty to exercise reasonable care and skill By virtue of section 13 of the Supply of Goods and Services Act 1982 (SGSA 1982) most contracts for the provision of services made in the course of a business contain an implied term that the person providing that service will exercise reasonable care and skill. Strict liability in contract cases The implied term to exercise reasonable skill and care is only one term of any contract. Most contractual duties are strict. It is therefore unusual for contractual terms to be
Exclusion and limitation of liability This Practice Note considers exclusion and limitation of liability in business-to-business (B2B) contracts. It provides guidance on the common law and statutory controls affecting exclusion and limitation of liability clauses (also known as limitation of liability clauses, limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses), including the provisions of the Unfair Contract Terms Act 1977 (UCTA 1977) and the Misrepresentation Act 1967 (MA 1967). It looks at what types of clauses constitute exemption clauses and the three key issues to consider when drafting such clauses or analysing them in a dispute: • incorporation • construction, and • statutory controls It also considers the court’s approach to the exclusion or limitation of liability for certain types of breach (eg fundamental breach) and types of loss (eg direct loss, indirect and consequential loss, loss of profits, loss of use and loss of data), some of the common ways in which parties exclude or limit liability (eg financial caps, time bars, excluding rights of set-off) and exemption clauses and third parties. For an overview of each section in this Practice Note and links to summaries of the key issues addressed, see: Quick view—contents and navigation below. In this Practice Note, exclusion and limitation of liability clauses are collectively referred to as ‘exemption clauses’. Drafting and negotiating exemption clauses For
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Legal opinion letter: for a ship finance transaction [Headed notepaper of law firm issuing the opinion] [insert name and address of lender] [insert date of closing] Dear [insert organisation name] Facility Agreement dated [insert date] between [insert name of lender] (the Lender) and [insert name of borrower] (the Borrower) (the Facility Agreement) We refer to [insert number of clause which requires delivery of legal opinion] of the Facility Agreement. This opinion is given in satisfaction of that clause. Unless otherwise defined in this opinion, defined terms in the Facility Agreement shall have the same meanings when used in this opinion. This opinion is governed by English law and is subject to the exclusive jurisdiction of the English courts. 1 Background 1.1 This opinion is given in relation to the English law aspects of a transaction (the Transaction) by which [insert description of transaction]. 1.2 We have acted as English legal advisers to [insert name of clients] in relation to the Transaction. 1.3 This opinion is limited to matters stated in paragraph 3 below and is given only in relation to English law as at the date of this opinion. 2 Documents examined and searches conducted 2.1 We have examined the following [original OR scanned] [signed OR agreed final form OR draft] documents relating to the Transaction: 2.1.1 the Facility Agreement [and any other documents relating to the Facility] described in Part A (the Financing Documents); 2.1.2 the security documents described
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What remedies are available to a buyer whose solicitors have breached their duty of care (negligence) and acted in breach of retainer in failing (i) to use the correct forms of Land Registry transfer (ii) to include necessary grants and reservations of rights and imposition of restrictive covenants with the result that the buyer (a) cannot register the transfer with the Land Registry and (b) in circumstances where the seller is refusing to enter into new and correct forms of transfer? Basis of liability in professional negligence claims Our Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity provides a useful outline for the initial considerations in bringing a clam for negligence. There are three options for the basis of the claim: Liability in contract: In most cases, there will be a contract between the professional and the client, eg between a solicitor and his client. There may be express or implied terms as to the performance of obligations under the contract and there may be attempts to limit or exclude liability for inadequate performance. By virtue of section 13 of the Supply of Goods and Services Act 1982 (SGSA 1982) most contracts for the provision of services made in the course of a business contain an implied term that the person providing that service
If an overage provision within a deed executed in 1985 does not contain an overage period, is it still enforceable/valid? The data-ln-csis="274768" data-ln-lnis="7X3X-52K0-Y97X-74NT-00000-00">Perpetuities and Accumulations Act 2009 reformed and simplified the law on perpetuities. However, a deed executed pre 2010 falls to comply with the old rules under the Perpetuities and Accumulations Act 1964 (PAA 1964), with the 'wait and see' rule (detailed below) being particularly relevant. Rule against perpetuities—instruments taking effect before 6 April 2010 It is likely that the rule against perpetuities will apply to most overage deeds executed before 6 April 2010. Where the perpetuity period was not defined, the period under the common law rule was the length of a life or lives in being plus 21 years. The lives had to be in being at the time of the disposition creating the settlement and it was common to select a ‘royal lives’ clause. This common law rule was modified, by the PAA 1964, in the case of dispositions made on or after 16 July 1964. The 1964 Act allowed
What are wayleave compensation payments for electricity wayleaves and what happens if they can’t be agreed? Any holder of a licence under the Electricity Act 1989 (EA 1989) is deemed to be a statutory undertaker and his undertaking a statutory undertaking for specified purposes if the statutory conditions are fulfilled. Compulsory grant of wayleave—statutory compensation EA 1989 authorises bodies authorised to generate, transport or supply electricity to acquire a wayleave to install an electric line on, under or over private land, together with rights of access for inspection, maintenance and replacement. The wayleave arises where the owner or occupier fails to respond to a notice requiring him to grant the wayleave or gives it subject to conditions unacceptable to the electricity company. The electricity company may request the Secretary of State to grant the wayleave. However, before doing so the Secretary of State will give the owner and occupier an opportunity to put their case. See EA 1989, s 10, Schs 3 and 4. EA 1989, s 10(1) provides two methods for an electricity supply undertaking to obtain rights enabling it to construct or if already in existence, keep power lines over land. The first is by compulsory acquisition of the necessary land under
Where a duty of care is owed, can constructive knowledge on the part of the claimant defeat a claim based on breach of the duty? In an alleged professional negligence claim, what are the general principles for determining what would have happened had proper advice been given? Constructive knowledge Constructive knowledge is deemed knowledge of a particular person regardless of whether that person had actual knowledge of the relevant matter. It applies in a number of situations, but commonly where an agent is acting for a principal—the knowledge of the agent, in respect of the matter that is within the scope of authority of that agent, is imputed to the principal. By way of example, a solicitor may act as agent for a client and, depending on the terms of the retainer, the solicitor’s knowledge may be imputed to their client. This is particularly relevant to claims that would otherwise be statute-barred as a result of the operation of the Limitation Act 1980 (see Jacobs v Sesame Ltd). Professional negligence claims Where professional negligence is alleged, the court will consider: First, (a) the scope of the alleged duty: what is that the solicitor was engaged to do and (b) whether or not the solicitor has exercised skill and care in the discharge of that duty. A lawyer owes a duty to give reasonably careful and competent advice to
Is a buyer subject to a duty to mitigate loss where a seller gives warranties on an indemnity basis in a share purchase agreement? An indemnity is a covenant by the seller to reimburse the buyer for losses arising from a specified event. In contrast to a warranty claim, the buyer does not have to prove breach (rather it simply has to show that the specified event has occurred), the principle of remoteness of damages does not apply and the buyer is not under a duty to mitigate its loss. The buyer is not required to mitigate their loss under an indemnity where the amount claimed under the indemnity constitutes a debt as opposed to damages for breach of contract, see Jervis v Harris. For further information, see Practice Notes: A guide to share purchase agreements—Warranties and indemnities and Warranties and indemnities—share purchase. It is increasingly common for buyers to seek to put warranties on an indemnity basis by providing
Can a contractual indemnity be limited to cover direct losses only, or must it cover all losses regardless of the remoteness of the loss? An indemnity is a contractual term under which a party promises to reimburse another in relation to specified loss or damage or, in some cases, to absolve them of liability. Indemnities give rise to an ‘on demand’ payment as opposed to a contractual right to sue. Provided that an indemnity relates to a specific loss (often referred to as a claim for a debt), it will not be subject to the usual rules on causation and remoteness of damage, and the requirement to mitigate losses. If, however, the indemnity is for the payment of damages for breach of contract, then these rules may still apply. See Practice Note: Contractual damages—general principles. The contracting parties are free to negotiate the terms and scope of the
Is it possible to claim for direct losses for delay in addition to liquidated damages where the contract does not state that liquidated damages are the sole remedy for delay? The general position is that, where parties have provided that liquidated damages (LADs or LDs) will be payable by the contractor if completion is delayed, this will be the employer’s sole remedy for such delay. In this situation, the employer will therefore not be able to seek general (ie unliquidated) damages from the courts in addition to, or instead of, claiming LADs—whether or not the parties have used express ‘sole remedy’ wording. This is illustrated particularly in cases where parties have inserted ‘nil’ or ‘N/A’ as the amount of LADs payable. For example, in Temloc v Errill Properties, the parties had inserted ‘nil’ in the contract particulars against the amount of LADs payable. The court held that the effect of this was that LADs were still the employer's sole remedy for delay damages under the contract, but the parties had agreed the amount would be nil. The employer was not entitled to claim general damages instead. In Chattan Developments v Reigill Civil Engineering the court, following Temloc, said: ‘…when there is a valid and enforceable liquidated and ascertained damages clause within an agreement, those damages are the sole remedy for the particular breach to which they relate, commonly
Is there any case law or guidance on claiming damages (including loss of profit) in a defects claim where the parties are using an NEC contract? When determining what damages an employer may claim, it is necessary to consider general principles regarding damages. As set out in Practice Note: Quantum in construction claims, the normal function of damages for breach of contract is compensatory—the aim is to compensate the loss suffered by the claimant and place it in the same position, so far as money can do so, as it would have been in had the contract been performed. The extent to which a type of loss, such as loss of profits, may be recoverable is primarily governed by the concepts of causation and remoteness (although other factors, such as whether the claimant has mitigated its loss, will also be relevant). Accordingly, a claimant must first show: • there is a causal link between the breach (eg the defect) and the loss suffered • that the loss is not too remote In relation to the latter point, the two limbs of Hadley v Baxendale apply when assessing whether damage caused is not too remote. Damages may only be recovered for: • losses which arise naturally from the breach (often called ‘direct losses’), or • potentially foreseeable losses, which were in the reasonable contemplation of the parties at the time
What are the differences between warranties and indemnities in a share purchase agreement and asset purchase agreement? A share purchase agreement (SPA) and an asset purchase agreement (APA) will typically include warranties and indemnities. The concept of caveat emptor (the buyer beware) still largely applies in a share sale and asset sale and is largely unfettered by statute. The practice has therefore developed for the buyer to include a full set of warranties, which are designed to produce sufficient information about the target company or target business (as appropriate) to enable it to decide whether it is a sensible proposition and also to provide redress if the target turns out not to be as the seller had led the buyer to believe. Warranties A warranty is a contractual statement or assurance given by a seller to a buyer that a certain state of affairs exists. If a warranty is breached, there will be no right of rescission (ie the right to restore the parties to the position they would have been in had the agreement never been entered into) unless this is expressly given in the SPA or APA. Under contract, damages for a breach of warranty will put the buyer in the position they would have been in if the warranty had not been untrue (ie the function of damages is compensatory, rather than punitive, to repair
Should a consultant accept a clause indemnifying the employer for any breach of the appointment? Most standard form consultant appointments and building contracts do not contain clauses requiring the consultant/contractor to indemnify the employer against losses caused by any act or omission of the consultant/contractor. However, some employers will seek to include such provisions in construction contracts, including consultant appointments (this Q&A discusses indemnities in both consultant appointments and building contracts). Public sector clients will sometimes have such wide reaching indemnity provisions in their standard terms and conditions. The potential effects of an indemnity will depend on the precise wording of the relevant provision in the contract, but generally speaking, indemnities are not subject to the usual requirements which apply to claims for breach of contract, ie causation, remoteness of damage and the requirement to mitigate losses. The limitation period for a claim under an indemnity can also be longer than it would be for a breach of contract claim. The liability under an indemnity can therefore be considerably more than it would be for a simple breach of contract claim. Therefore consultants, suppliers and contractors will usually try to resist wide reaching provisions which require them to indemnify the employer against any losses, costs, claims and other damages suffered by the employer due to an
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Construction analysis: The Technology and Construction Court (TCC) granted summary judgment to strike out parts of the defendant’s case claiming that the loss suffered by the assignee of a collateral warranty who paid for remedial works were not the natural consequence of breaches of warranty of the nature relied upon by the claimant and thus were too remote.
This week's edition of Property Disputes weekly highlights includes: an analysis of the impact of the Building Safety Act 2022 on landlord and tenants, a High Court decision on specific performance, and details of the property-related provisions of the Queen’s Speech.
This week’s edition of Dispute Resolution weekly highlights includes: analysis of a number of key DR developments and key judicial decisions including those of the Court of Appeal in Armstead v Royal Sun Alliance (pure economic loss and bailment), Bailey v Cherry Hill Skip Hire (unfair prejudice petition) and Schedule 1 claimants v Spence (fortification of WFO) and of the High Court in Underwood v Bounty UK (protecting confidential information) and Changtel Solutions v G4S (change of position defence); dates for your diary; and other information of general interest to dispute resolution practitioners.
Life Sciences analysis: Jin Ooi, partner, Jonathan Newman, partner, and Oscar Robinson, associate, at Kirkland & Ellis International LLP discuss inquiry as to damages in pharmaceutical patent disputes in light of the judgments in the Dr Reddy's v Warner-Lambert damages inquiry proceedings.
This week's edition of Commercial weekly highlights includes: analysis of the Court of Appeal judgment in Armstead v Royal Sun Alliance dismissing the appeal to recover damages fixed in a hire contract for loss of use of the property, analysis of the Court of Appeal judgments in Revenue and Customs Commissioners v Atholl House Productions and Kickabout Productions v Revenue and Customs Commissioners concerning the test for employment status in the context of the IR35 tax regime, analysis of the decision in Longley v PPB Entertainment Ltd dismissing a claim by a Paddy Power betting customer to winnings paid out to him following a human error as to the sum which he was prepared to stake and news of the government postponing its post-Brexit import checks to late 2023.
Dispute Resolution analysis: This appeal concerned whether the claimant, who was the hirer of property (a bailee), could bring a claim in tort against a negligent stranger to recover damages fixed in the hire contract for the loss of use suffered by the property owner (the bailor, hire company), after the hired property was damaged by the stranger’s negligence. The issues raised included whether such a claim for liquidated damages is a claim for pure economic loss, whether the scope of a tortfeasor’s duty of care extends to such liabilities, as to the foreseeability and remoteness of the loss and as to the reasonableness of the quantum claimed. The Court of Appeal unanimously found for the defendant in respect of these issues, dismissing the claim and the appeal. Written by Quentin Tannock, a barrister at 4 Pump Court.
Restructuring & Insolvency analysis: Reforms to Cayman Islands restructuring laws are expected to come into force at the end of Q1 2022. Caroline Moran and Nick Herrod from Maples and Calder look at these reforms in further detail.
Employment analysis: Every business operating in the EU with 50 or more workers will have to take a hard look at its whistleblower policy and assimilate changes required by the new EU Whistleblower Directive (the Directive). It is also something companies with connections to EU companies need to think about. Jonathan Pickworth, partner, Adina Ezekiel, practice innovation knowledge attorney, and Harry Fathers, trainee solicitor, at Paul Hastings LLP provide a reminder of the implications of some of the key provisions of the Directive and an update on transposition across the EU.
Family analysis: This case concerned an application by the husband (made in April 2020) to set aside parts of a final financial order (made only in October 2019) on the basis that the coronavirus (COVID-19) pandemic constituted a Barder event which justified setting aside parts of the final financial order. The judgment makes important references to the Thwaite jurisdiction, the variability or otherwise of a lump sum payable by instalments and the move away from anonymity in financial remedy judgments. Although the primary issue may have been the Barder principle, arguably the biggest aspect for practitioners is the warning regarding the lack of anonymity in the reporting of future financial remedy judgments and the impact this will have on the way parties choose to litigate the financial disputes relating to their separation. This is especially so where judges at all levels are being encouraged to report 10% of their judgments annually, which is of significance not only in big money cases. Michael Allum, partner at the International Family Law Group LLP, analyses the issues.
Employment analysis: When considering whether or not stand-by or on call time is to be regarded as ‘working time’ under the Working Time Directive for the purpose of the maximum working week, rest breaks and rest periods, relevant factors will include: 1) whether the worker has to be in a specific place during their periods of stand-by time, 2) whether they are allowed to carry out another professional activity during stand-by time and, if so, whether they can do so effectively (as a result of obligations arising from their employment contract, from collective agreements and from legislation) for a significant portion of stand-by time, 3) whether they can choose not to work when called upon by their employer (and how frequently they can choose not to do so), 4) if they decide to work, the time limit for that worker to return to work, and 5) the average frequency of the activities that the worker is actually called upon by their employer to undertake, according to the Court of Justice.
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