Under Article 4 of Directive 2006/116/EC (the EU Term Directive), a publication right may be acquired by ‘any person who, after the expiry of copyright protection, for the first time lawfully publishes or lawfully communicates to the public a previously unpublished work’. Article 4 grants a 25-year exclusive privilege to whoever is the first to publish or communicate to the public a work in which the normal term of copyright protection has expired (a derelict work).

The process of buying investments more suited to the liabilities of the pension fund which reduces the risk of (for example) volatility of the price of investments, or of the changes in longevity. Total derisking can involve a ‘buy-out’.

A derivative is a type of financial instrument which is entered into in connection with an underlying asset, index or reference point which has a variable financial value, for example, a floating rate of interest, a currency exchange rate or commodity price.

Any financial product whose value in whole or in part is determined directly or indirectly by reference to the price of an underlying security.

Derivative acquisition describes obtaining a legal right, title or interest from a previous holder, rather than acquiring it originally. In practice, it most often refers to the transfer of ownership of property (land, goods, shares or intellectual property) from one person to another, where the acquirer’s title is derived from, and dependent on, the transferor’s title. Across the UK and Ireland the concept is primarily doctrinal rather than a defined statutory term, and is often contrasted with “original acquisition” (for example, acquisition by occupation, accession or prescription). Key features are: continuity of title; the passing of both benefits and defects in the transferor’s title; and the relevance of priority rules, registration requirements and protection of third-party rights. Typical contexts include conveyancing, corporate asset transfers, voluntary dispositions, succession and security enforcement. In Scotland, derivative acquisition is used within a mixed system that distinguishes original from derivative modes of acquiring real rights, particularly in land and moveable property law. In England & Wales, Northern Ireland and Ireland, the term is more descriptive but is consistent in meaning, especially in property, company, commercial and insolvency practice.

A claim brought or continued by a shareholder on behalf of the company in relation to a breach of duty by a director under CA 2006, Pt 11. It will usually be used in circumstances when the majority of the board wrongfully prevent the company bringing or proceeding with such a claim itself. The procedure is governed by the rules'>Civil Procedure Rules, CPR 19.9 and its related Practice Direction.

A claim brought or continued by a shareholder on behalf of the company in relation to a breach of duty by a director under CA 2006, Pt 11. It will usually be used in circumstances where the majority of the board wrongfully prevent the company bringing or proceeding with such a claim itself. The procedure is governed by CPR 19.9 and its related practice direction.

Dispute Resolution analysis: This analysis examines the means by which a derivative claim can be brought on behalf of a Limited Liability Partnership (LLP). In particular, it addressed whether the test for continuing a derivative action in such context is that pursuant to the common law or, as had been common ground at first instance, whether section 263 of the Companies Act 2006 (CA 2006) should be applied. The court held that the common law test was applicable and that the statutory test does not apply to derivative claims pursued on behalf of LLPs. In addition, the procedural point that arose, concerning the taking of such a new point on an appeal, was considered before the appeal was allowed. Written by James Davies, barrister and mediator, at New Square Chambers.

Dispute Resolution analysis: The Court of Appeal has considered the scope of the fraud exception to the rule in Foss v Harbottle in determining whether or not to uphold the grant of permission to bring a derivative action on behalf of a limited liability partnership. McCombe LJ confirmed that the extent of this exception is as per the dicta of David Richards J in Abouraya v Sigmund and not wider.

This Practice Note looks at how derivative and Surinder Singh rights of residence are dealt with in the EU Settlement Scheme (the Scheme), including the scope of these rights under the Scheme, and relevant application procedures. As per the case of Ahmed, under the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 and its transitional provisions, valid applications for EEA family permits made before 31 December 2020 remained eligible for consideration and possible approval afterward, provided the applicants met the criteria under Regulation 11(5)(e) of the 2016 Regulations. New applications to the EU Settlement Scheme, however, can only now be made by people holding EU rights on some bases. Closure of the Surinder Singh and Zambrano routes A Statement of Changes published on 17 July 2023 announced the closure of the Surinder Singh and Zambrano routes to new applications. The deadline for new applications was 8 August 2023. Those with pre-settled status under the EUSS or those with an already pending application

Dispute Resolution analysis: The High Court refused to restrain Swan Bitcoin, the 20% minority shareholder in 2040 Energy Ltd, from pursuing a British Virgin Islands application for permission to bring a derivative claim in 2040’s name and on its behalf. The court held that a shareholders’ agreement clause preventing a group company, without investor consent, from instituting, settling or compromising substantial legal proceedings did not extend to a derivative action brought by a shareholder. Properly construed, the proceedings would be brought by Swan, not by 2040, even though they would be advanced in the company’s name. The decision shows that clear words are needed if parties intend a shareholders’ agreement to exclude or limit derivative remedies.

Dispute Resolution analysis: In considering a wide-ranging application for strike-out/summary judgment by AIB, the court provided useful guidance, including most prominently on the limits and proper approach to derivative actions and the precise parameters of the exception to the reflective loss principle set out in Giles v Rhind. The judgment, while it must be treated with some caution given that the court was only required to consider whether the various arguments had a real prospect of success, will be of interest to practitioners advising their clients in complicated shareholder disputes and in relation to litigation arising from company structures involving trusts, where questions of the capacity to bring claims (and the types of claims which can be so brought) will be of particular significance. Written by Leo Kitchen, senior associate, at Quinn Emanuel Urquhart & Sullivan UK LLP in London.