A woman who carries a child for another (and who typically has no biological connection with the child) with the intention that the child will be handed over after its birth.
The value we add What in-house legal teams do that helps articulate their value Tactically Operationally Strategically Tactical value is the value that is easiest to count, but the least satisfying as an indicator of true value. It is however simplistic and easy to grasp and therefore of some importance, certainly defensively. Ironically, although not very helpful to judge quality or intrinsic value the following are indicators the business will often request of lawyers – faster, quicker, and cheaper! And so a team often gets stuck here and fails to develop more thoughtful indicators of value. Operational value is the value that is derived from applying insight to operational policy and process and, in doing so, adding value through a closeness of alignment, understanding and access. Good teams move here quickly as they can make their work easier in addition to driving a more efficient model for the business. In essence, tactical value fails when increasing demand creates a bottleneck. Operational value is about alleviating the bottleneck Strategic value is the hardest but most rewarding value to create and articulate. In this construct in-house teams contribute as leaders and business partners. They invent, drive innovation and help the business to work successfully, compliantly and enhancing reputation. If operational value is about alleviating bottlenecks, strategic value is about redesigning the bottle How many? Matters,
EU REACH—objectives and scope Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) is an EC Regulation, in force since 1 June 2007. Its aim is to improve the protection of human health and the environment through the better and earlier identification of the intrinsic properties of chemical substances. Specific objectives are to: • provide a high level of protection of human health and the environment from the use of chemicals • make manufacturers and importers who place chemicals on the market responsible for understanding and managing the risks associated with their use • allow the free movement of substances on the EU market • enhance innovation in and the competitiveness of the EU chemicals industry • promote the use of methods other than vivisection and/or animal testing for the assessment of the hazardous properties of substances (eg quantitative structure-activity relationships (QSAR) and 'read across') QSAR are computer based models which are designed to predict the physico-chemical properties, human health and environmental effects of a substance from knowledge of its chemical structure. Some models are qualitative and give an indication of a likely effect rather than try to quantify that effect. 'Read across' is a method of filling in data gaps for a substance by using surrogate data from another substance. Read-across can be between two substances or through a group or category of chemicals. The groups are selected on the assumption that
Mitigation in contractual breach claims When is mitigation in contract claims relevant to consider? Even where causation and remoteness have been established (see Practice Note: Causation and remoteness in contractual breach claims) in relation to loss, any recoverable damages can be affected if the claimant has failed to mitigate their loss. That is, the innocent party cannot recover damages for any loss which they could have avoided but failed to avoid through unreasonable action or inaction. Central to the issue of mitigation is the question of what steps were reasonable or unreasonable for the claimant to take? What is the rule on mitigation? The rule on mitigation comprises three distinct components: • the innocent party must take all reasonable steps to mitigate their loss. The innocent party cannot recover damages for any loss, which they could have avoided but failed to avoid through unreasonable action or inaction • where the innocent party takes reasonable steps to mitigate their loss, they can recover any losses incurred in taking such steps • where the innocent party takes steps to mitigate their loss and these steps are successful, the defaulting party is entitled to the benefit, which arises as a result of the innocent party's action Note: Leggatt J in Thai Airlines v KI Holdings stated that while distinguishing the three components may sometimes be useful, it is important not to lose sight
Asset recovery—Greece—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to asset recovery in Greece published as part of the Lexology Getting the Deal Through series by Law Business Research (published: January 2022). Authors: ANAGNOSTOPOULOS—Ilias Anagnostopoulos; Alexandros Tsagkalidis 1. Is there any restriction on civil proceedings progressing in parallel with, or in advance of, criminal proceedings concerning the same subject matter? No. However, civil proceedings may be suspended until a final judgment in the criminal proceedings is issued. 2. In which court should proceedings be brought? A victim of fraud may file an action in tort against the defendant with the competent court of first instance seeking restitution for the loss or damage sustained (article 914 et seq of the Greek Civil Code (GCivC)). The general rule lies with the jurisdiction of the courts of the defendant's place of residence (article 22 of the Greek Code of Civil Procedure (CCivPr)) or, concurrently in the case of tort (article 35 CCivPr), of the courts of the location where the damaging incident took place or where such damaging effect is threatened. Concerning the monetary value of the claim, as a general rule, Greek courts of first instance are divided into the following: • courts of small claims: hearing disputes up to €20,000; • single-member courts of first instance: hearing disputes from €20,000 to €250,000; and • multi-member courts of first instance: hearing disputes exceeding €250,000. 3. What
Family—private and public children annual round-up: reviewing 2017 and previewing 2018 [Archived] This year’s annual review looks back at some of the most significant developments in public and private children of 2017, including consideration of adoption and the welfare principle, large sibling groups and care planning, covert recordings and the new Family Procedure Rules 2010 (FPR 2010), PD 12J. Also included are updates on LexisNexis®’s content and what is coming up in the next 12 months. Reviewing 2017 Evidence and procedure What happened? A revised FPR 2010, PD 12J came into force on 2 October 2017. What are the key implications? The introduction of a new FPR 2010, PD 12J arose following the report by the working group chaired by Cobb J that was commissioned by the President of the Family Division, Sir James Munby, following the recommendations made by the all-party parliamentary group on domestic violence in 2016. The President asked Cobb J to review FPR 2010, PD 12J to examine whether amendments were needed. That report, together with a draft amended FPR 2010, PD 12J was published in January 2017 and endorsed by the President in his 16th View from the President’s Chambers: Children and vulnerable witnesses—where are we? The draft FPR 2010, PD 12J was considered by the Family Justice Council before being approved by the Minister of
Transfer pricing—Brazil—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to transfer pricing in Brazil published as part of the Lexology Getting the Deal Through series by Law Business Research (published: October 2021). Authors: Trench Rossi Watanabe—Clarissa Giannetti Machado; Luiz Felipe de Camargo Silva 1. Identify the principal transfer pricing legislation. The principal transfer pricing rules in Brazil are: • Law 9,430 of 27 December 1996 (and amendments); • Law 10,451 of 10 May 2002; • Law 10,637 of 30 December 2002; • Law 10,833 of 29 December 2003; • Law 11,727 of 23 June 2008; • Law 12,249 of 11 June 2010; • Federal Revenue Service, Normative Ruling 1,037 of 4 June 2010 (and amendments); • Federal Revenue Service, Normative Ruling 1,154 of 12 May 2011; • Federal Revenue Service, Normative Ruling 1,312 of 28 December 2012 (and amendments); • Federal Revenue Service, Normative Ruling 1,547 of 13 February 2015; • Ordinance of the Ministry of Finance 222 of 24 September 2008; • Ordinance of the Ministry of Finance 427 of 30 July 2013; • Federal Revenue Service, Normative Ruling 1,669 of 9 November 2016; • Federal Revenue Service, Normative Ruling 1,681 of 28 December 2016 (and amendments). 2. Which central government agency has primary responsibility for enforcing the transfer pricing rules? The federal tax authorities are responsible for audit transfer pricing matters. In the past, there was a unit of the Federal Revenue Service (FRS) called the Special Department for International
Damages in tort claims—recovery and assessment This Practice Note considers what damages may be available as remedy for claims in tort, including negligence claims. For general guidance on damages, see Practice Note: The remedy of damages—general principles. For guidance on damages for loss of a chance, see Practice Note: Loss of chance damages. For a summary of the key distinctions between claiming damages in tort compared with claiming damages in contract, see Practice Note: Claiming damages—tort and contract claims compared. Compensatory function of damages in tort Damages in tort are in general compensatory, ie they aim (subject to the rules of remoteness and mitigation) to make the claimant whole—ie to put the claimant in the position they would have been in had the tort not been committed—but no more than that. This applies not only to negligence and similar torts, but also to torts such as conversion and deceit. However, this general rule is subject to three qualifications: • restitutionary recovery (see below) may be allowed in respect of certain torts to deprive a defendant of their profits, although this is not a remedy generally available. For further guidance on claims in restitution more generally and seeking an account of profits, see: Restitution and unjust enrichment—overview • in certain proprietary torts, notably trespass and conversion, damages may be quantified by the value to the
Surrogacy—parental orders—procedure A parental order is an order providing for a child to be treated in law as the child of the applicant(s) if the child has been carried by a woman who is not the applicant, or one of the applicants, as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination, and the gametes of the applicant, or at least one of the applicants, were used to bring about the creation of the embryo, subject to certain conditions, see Conditions that must be met. The key provisions for surrogacy arrangements are contained in the: • Surrogacy Arrangements Act 1985 (SAA 1985) • Human Fertilisation and Embryology Act 2008 (HFEA 2008) • Human Fertilisation and Embryology (Parental Orders) Regulations 2010, SI 2010/985 (SI 2010/985), revoked by the Human Fertilisation and Embryology (Parental Orders) Regulations 2018, SI 2018/1412 (SI 2018/1412), and • Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, SI 2018/1413 (SI 2018/1413) The paramount consideration of the court must be the child's welfare throughout their life. For details as to who may apply for a parental order, the requirements that must be met when making an application for a parental order and the effect and duration of parental orders,
Payment Card Industry Data Security Standards (PCI DSS) for commercial lawyers This Practice Note is designed to assist commercial practitioners acting on behalf of merchants or their subcontractors and considers: • the entities to which Payment Card Industry Data Security Standards (PCI DSS) applies • PCI DSS principles and requirements • steps that are required for compliance with PCI DSS • ongoing compliance • enforcement, including card scheme fines • interaction with UK privacy and data security laws and standards • contractual protections for merchants using service providers It does not consider sector-specific laws, practices or PCI DSS requirements that are relevant to financial institutions, merchant acquirers, payment processors, payment networks and banks since those are only relevant to specialists working in those niche sectors. For detailed sector-specific guidance on payment services, see: • Payment services—overview • Payment systems—overview, and • E-money—overview The card schemes Discover Financial Services and JCB International do not have any material presence in the UK and so this Practice Note focuses on the approach of MasterCard, Visa and American Express. What is PCI DSS? The Payment Card Industry Security Standards Council (PCI SSC) was founded in 2006 by the leading global card schemes, American Express, MasterCard, VISA, Discover Financial Services and JCB International. The purpose of the PCI SSC is to promote and maintain the PCI DSS which are designed to improve payment card data security by setting out
Transfer pricing—Japan—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to transfer pricing in Japan published as part of the Lexology Getting the Deal Through series by Law Business Research (published: October 2021). Authors: TMI Associates—Hiroyuki Yoshioka 1. Identify the principal transfer pricing legislation. Article 66-4, paragraph 1 of the Act on Special Measures concerning Taxation (the Act) provides that when a Japanese corporation conducts a sale of assets, a purchase of assets, a provision of services or other transaction with its foreign affiliate and (1) the amount of consideration received for it is less than an arm's-length price or (2) the amount of consideration paid for it exceeds the arm's-length price, the transaction is deemed to be conducted at the arm's-length price for the purpose of applying laws concerning corporation tax with regard to the income of the Japanese corporation in the business year. Other articles of the Act define additional rules regarding transfer pricing, and cabinet orders and ministerial ordinances established pursuant to the Act define more detailed rules on transfer pricing. The National Tax Agency (NTA), which is the enforcement agency of the transfer pricing legislation, publishes circulars regarding the interpretation of the rules by the NTA and the Commissioner's Directive on the Operation of Transfer Pricing. 2. Which central government agency has primary responsibility for enforcing the transfer pricing rules? The NTA has primary responsibility for
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Have there been any reported cases where the presumption of continued parental involvement (per section 1(2A) of the Children Act 1989) has been considered in respect of a step-parent (without parental responsibility)? Section 1(2A) of the Children Act 1989 (ChA 1989) is a relatively new provision within ChA 1989, s 1, having been inserted on 22 October 2014 by section 11(2) of the Children and Families Act 2014. Since that date there have been a number of reported decisions where ChA 1989, s 1(2A) has been touched on, but none of them concerns a step-parent. ChA 1989, s 1(2A) provides as follows: ‘A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.’ This section provides the presumption that unless the contrary is shown, involvement of a parent in the life of a child will further the child's welfare. This presumption is subject to the requirement that the parent concerned may be involved in the child's life in a way that does not put the child at risk of suffering harm. ChA 1989, s 1(2B) defines ‘involvement’ as meaning involvement of some
Where a woman is separated from her husband, but not yet divorced, and she wishes to undertake in vitro fertilisation treatment (using donor sperm), does she require her husband’s consent to do so? Where the husband refuses to sign a form indicating that he does not consent for the purposes of section 35 of the Human Fertilisation and Embryology Act 2008, how will that section be applied? There is no legal requirement for a woman who remains married to obtain the consent of her husband to undergo in vitro fertilisation (IVF) treatment, provided that she is not seeking to use her husband’s sperm or frozen embryos of the couple, in which circumstances complex legal issues arise. Where the woman wishes to proceed with IVF treatment using donor sperm, those issues of consent do not arise, and the Human Fertilisation and Embryology Act 2008 (HFEA 2008) does not require the consent of both the wife and the husband in such circumstances. HFEA 2008 provides, among other things, a framework as to the legal parenthood of a child conceived via IVF. HFEA 2008, s 33 provides that the woman who is carrying the child is to be treated as the mother of the child. This means that regardless of whether egg or sperm is donated, the woman who is
Can two same-sex (male) intended parents apply for a parental order in a situation where they don't know which one of them is the biological father (but they know it is one of them)? A parental order is an order made under section 54 or 54A of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) and which has the effect of transferring parentage from a surrogate mother to the intended parent or parents. Such orders can be made only after the child has been born. The effect of a parental order is to make the applicants the legal parents of the child, from which parental responsibility flows. An application must be made within six months of the birth of the child and applies where a child has been carried by a woman who is not one of the applicants, as a result of an embryo or sperm and eggs being implanted or artificial insemination having taken place, and that the sperm or egg of at least one of the applicants was used to bring about the creation of the embryo. There must be consent by the surrogate (and any husband or civil
Where a same sex married couple have a child who is the biological child of one spouse and an egg/sperm donor, is the child deemed to be the child of both spouses for Will drafting purposes? This Q&A considers issues surrounding the creation of a Will where a same sex couple wishes to provide for a child conceived by use of a donor egg/sperm. Given the content of the Q&A, it is clear that the situation described amounts to what is commonly known as partial surrogacy; in that the mother will be genetically related to the child, as opposed to genetically unrelated to the child (commonly known as total surrogacy). A surrogate mother (whether or not genetically related) is treated as the child’s legal mother until, and unless, that situation is altered by order of a Court. There is no right for the surrogate mother to simply surrender her parental responsibility or legal parenthood: section 33(1) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008). If the surrogate mother is married, the husband of
Are there any reported cases where the relationship between a same-sex couple who have a surrogate child has broken down prior to a parental order being made, so that parental responsibility remains with the legal mother and one of the couple as the father? Have there been any other significant surrogacy decisions since Re H (a child)  EWCA Civ 1798,  All ER (D) 141 (Nov)? This Q&A considers two points. Firstly, it considers whether there have been any significant surrogacy decisions that post-date Re H (A Child). Secondly, it considers whether there are any reported cases concerning a breakdown in the relationship between a same sex couple prior to obtaining a parental order in respect of a surrogate child. The case of Re H concerned a same sex couple, A and B, who entered into a surrogacy agreement with C who was married to D. A’s sperm was used, as well as a donor egg. Following the birth, C informed A and B that she was no longer willing to follow the surrogacy agreement and so would not consent to a parental order. A and B issued legal proceedings. At first instance, Theis J determined that the child should live with A and B, and she made a number of orders limiting the exercise of parental responsibility by C and D. C and D
If a surrogate’s husband is automatically the second legal parent, can the biological father still have parental responsibility if he is registered on the birth certificate? Surrogacy occurs where a woman carries a child with the intention that that child will be given to other parents. Surrogacy can either be total (where the surrogate carries a fertilised egg) or partial, where the surrogate is the genetic mother but the father is the partner of the intended mother. The surrogate mother is the legal mother of the child and is named on the birth certificate. She has parental responsibility for the child. If the surrogate mother is married at the time of implantation, her husband automatically becomes a legal parent and acquires parental responsibility unless it can be demonstrated that he did not consent to the surrogacy (per section 35 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008)). HFEA 2008, s 33 makes it clear that no other woman is to be treated as the mother of the child. HFEA 2008, s 38 makes it clear that where a person is treated as the father of the child by virtue of
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Immigration analysis: The Nationality and Borders Act 2022 received Royal Assent on 28 April 2022. In addition to controversial provisions relating to deprivation of citizenship without notice and statelessness, the Act makes a wide range of more generous changes to British nationality law, including for the first time a general discretionary power to register adults as British citizens. The ambition is to deal conclusively with issues of historical legislative unfairness in British nationality law. In this analysis, Alexander Finch, solicitor and senior manager at Fragomen LLP, provides a comprehensive summary of the key changes in the Act relating to nationality law, and how they might pan out in practice.
Life Sciences analysis: Jeff Craven, contributing writer to Regulatory Affairs Professional Society’s (RAPS) publication Regulatory Focus, considers the US Food and Drug Administration’s (FDA) use of advisory committees before approving drugs.
Public Law analysis: On 15 February 2022, the High Court handed down judgment in a judicial review claim brought by two public interest groups, the Good Law Project (GLP) and the Runnymede Trust, against an alleged government policy or practice of making appointments to coronavirus (COVID-19) taskforces without open competition. The claimants argued this gave rise to discrimination. The court did not consider that the alleged policy existed and the claim failed on grounds 1 (indirect discrimination) and 3 (apparent bias). The court nonetheless found that the specific appointments identified by the claimants (Baroness Harding as Interim Chair of the National Institute for Health Protection in May 2020 and Mr Coupe as Director of Testing for NHS Test and Trace in August 2020) breached the Public Sector Equality Duty (PSED), which requires public authorities to take reasonable steps to enquire about the potential impact of a proposed decision or policy on people with protected characteristics (as identified in the Equality Act 2010). However, only one of the claimants (the Runnymede Trust) succeeded on the PSED ground, as the court found that GLP lacked standing to bring any of the grounds of challenge, noting that it does not have a carte blanche to bring judicial review claims. The court dedicated one third of its judgment to the issue of GLP’s standing which, according to an earlier judgment, had been ‘ripe for review’. Written by Tom Cassels, Jonathan Jones, Alexander Fawke and Emma Kate Cooney of Linklaters LLP.
Welcome to the January 2022 highlights from the Immigration team, which provides links to key news stories from the last month, as well as a round-up of new and updated content in Immigration.
This month’s edition of Family highlights includes details of supplementary guidance on e-bundles in the Family Court, a new Financial Remedies Court efficiency statement in relation to hearings below High Court judge level and new rules to make the necessary changes to existing primary and secondary legislation consequential upon the Divorce, Dissolution and Separation Act 2020 (DDSA 2020). Privilege in relation to private financial dispute resolution hearings is set out, together with what may be considered to be special circumstances for an adult child in Schedule 1 to the Children Act 1989 applications and deprivation of liberty and unregistered children’s homes. In addition to links to analysis of other key decisions, recently updated and new content is also detailed, including new Practice Notes on cryptoassets for family lawyers and remote and hybrid hearings in the Family Court.
This week's edition of Life Sciences weekly highlights includes news of the publication of a European pharmaceutical sector insights report and the European Medicines Agency’s (EMA) 2020 annual report; the NHS Health Research Authority’s (HRA) support for delaying the implementation of the General Practice Data for Planning and Research data collection scheme; the US launch of a Generic Drug Cluster aimed at harmonising global regulatory agencies generic drug development; the latest coronavirus (COVID-19) developments, including the Regulation on the EU Digital COVID Certificate being signed into law to apply from 1 July 2021 and proposals to strengthen the EMA; among other stories.
This week’s edition of Private Client highlights includes: (1) Analysis of the government’s recent consultation on mandating the online probate application process for professionals and the impact of the Non-Contentious Probate (Amendment) Rules 2020; (2) The OPG’s business plan for 2020–2021; (3) Analysis of PLK and others on Appeal, which held that English professional deputies could claim a 20% uplift on the Guideline Hourly Rates; (4) AB, Re, in which the Court of Protection refused an application to recognise American Letters of Guardianship and yielded jurisdiction to the US courts; (5) London Borough of Brent v Johnson, a charity law case on whether a local authority held property on a resulting, constructive or charitable trust; (6) DP v A local authority, which concerned section 21A applications and section 48 orders made under the Mental Capacity Act 2005; (7) Brexit considerations and potential implications for Scottish civil litigation; (8) The OECD Economic Survey of the United Kingdom and its recommendations on fiscal policy, and (9) the launch of a client survey on Lexis®PSL Precedent Wills.
This month’s edition of Family highlights includes consideration of remote hearings, child abduction and returning a child to a third state and determining beneficial ownership of company shares between cohabitants. Amendments to the Family Procedure Rules 2010, SI 2010/2955, Pt 37 are detailed, as to applications and proceedings for contempt of court in family proceedings. Guidance published for experts giving evidence remotely during the coronavirus (COVID-19) pandemic is set out, together with a further consultation on remote and hybrid hearings in the family court. In addition to links to analysis of other key decisions, recently updated content is also detailed.
This week’s edition of Tax highlights includes: (1) further information and guidance on coronavirus (COVID-19) related measures and statements, (2) The UT’s decision in Bostan Khan that the taxpayer had received a distribution consisting of the proceeds of a share buyback, and was subject to income tax on that amount, (3) the High Court’s rejection of a claim to rectify a contract for services that was mistakenly entered into with an individual rather than his company in MV Promotions Ltd, (4) the UT’s decision in Beigebell Limited to remit an appeal concerning MTIC fraud back to a differently constituted FTT for a rehearing, citing several errors of law in the original decision, and (5) the Court of Session’s decision in McMahon v Grant Thornton that tax advisers had not been negligent in failing to advise a client to transfer shares to his wife before a sale in order to benefit from entrepreneurs’ relief.
This month’s edition of Insurance & Reinsurance monthly highlights includes analysis of the decision of the High Court to refuse Prudential Assurance Company’s Part VII FSMA 2000 transfer of a portfolio of annuity business. It also includes other news highlights reported over the past month, including items on Brexit; cladding risks; cyber insurance and motor insurance. There is also news on the latest regulatory developments, together with dates for your diary and case trackers.
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Surrogacy is the practice whereby one woman carries a child for another with the intention that the child should be handed over at birth1 to the commissioning couple and raised as their child. Surrogacy may be employed when the commissioning mother is either infertile or unable to carry a child.Surrogacy can take various forms. 'Total' or 'gestational' surrogacy may occur when the commissioning mother donates an egg which is fertilised by sperm from the commissioning father before being implanted in the carrying mother. The commissioning couple are therefore
Surrogate is referenced 1 in Halsbury's Laws of England
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