The following Financial Services practice note provides comprehensive and up to date legal information covering:
BREXIT: As of exit day (31 January 2020) the UK is no longer an EU Member State. However, in accordance with the Withdrawal Agreement, the UK has entered an implementation period, during which it continues to be subject to EU law. This has an impact on this Practice Note. For further guidance on the impact of Brexit on collective investment schemes that are UCITS or AIFs, please see Practice Notes: Impact of Brexit: UCITS—quick guide and Impact of Brexit: AIFMD—quick guide.
The definition of a collective investment scheme (CIS) is contained in section 235 of the Financial Services and Markets Act 2000 (FSMA 2000). The definition is broad and somewhat vague and covers a broad variety of arrangements, not just traditional investment funds. The Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 2001, SI 2001/1062 (CIS Order) was therefore enacted to set out a number of arrangements which, if applicable, would mean that the arrangements in question would not be viewed as a CIS. Section 235 of FSMA 2000 defines a CIS as:
‘…any ‘arrangements’ with respect to property of any description, including money, the purpose or effect of which is to enable persons taking part in the arrangements (whether by becoming owners of the property or any part of it or otherwise) to participate in or receive profits
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This Practice Note considers the meaning and use of conditions precedent in commercial arrangements. It also considers typical conditions precedent and drafting issues.What are conditions precedent?A condition precedent in a commercial contract details an event which must take place before:•a
What is a res judicata?A res judicata is a decision given by a judge or tribunal with jurisdiction over the cause of action and the parties, which disposes, with finality, of a matter decided so that it cannot be re-litigated by those bound by the judgment, except on appeal.Final judgments by
ContractWhere a contract is made by two or more parties it may contain a promise or obligation made by two or more of those parties. Any such promise may be:•joint•several, or•joint and severalWhether an undertaking is joint, several, or joint and several in contract is a question of construction
What is recklessness?In respect of some statutory offences and common law crimes the prosecution are required to prove a mental element of recklessness on the part of the defendant.Recklessness means unjustified risk taking on the part of the accused.Prior to the House of Lords decision in Re G
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