Commercial analysis: The English High Court has provided further guidance on the interpretation of ‘no waiver’ clauses in a recent decision. The backdrop to this decision was a sanctions related dispute about the termination of a currency swap agreement between two banks, one of which was Russian, the other English. The agreement had a dispute resolution clause where the forum was arbitration unless the English bank gave notice that a dispute should be heard by the English courts. Pamela Vassil, lawyer at A&O Shearman, examines the court’s decision.

Commercial analysis: Anheuser-Busch International Inc v Commonwealth Brewery Ltd was an appeal to the Privy Council about whether three-and-a-half months’ notice was a reasonable period when terminating a long-running distributorship. The Board reviewed a range of authorities from commonwealth countries dealing with the law on implied terms requiring reasonable notice when ending commercial relationships of indefinite duration. The Board confirmed that reasonable notice helps enables an orderly winding-up of the relationship being terminated and allows the recipient of a notice of termination to make substantial progress towards alternative arrangements; it is not to preserve the recipient of notice’s profit stream or ensure the recipient has enough time to fully replace the lost business. The judgment provides a helpful overview of factors that are relevant to the assessment of what period is ‘reasonable’, including business dependence, dedicated resources, extraordinary sunk expenditure, third-party commitments and the difficulties created by continued performance during the notice period. The judgment will be of interest to practitioners handling disputes surrounding termination of distribution, agency, brokerage and supply agreements and whether reasonable notice needs to be given (and how long that ought to be in the circumstances). Written by Lucas Gregory, barrister at St John’s Buildings.

Employment analysis: While there is no implied duty on an employer to act fairly in all contexts, there may be a narrower basis for an implied term that disciplinary processes will be conducted fairly and such a term is not conceptually linked to the implied term of trust and confidence, according to obiter dicta comments by Lord Justice Underhill and Lord Justice Singh in the Court of Appeal, following the earlier comments made by Mrs Justice Simler (as she then was) in Chakrabarty.

Changing terms and conditions of employment Under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992), where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within any period of 90 days or less, this gives rise to statutory obligations to: • inform • consult • notify the Secretary of State The statutory consultation obligations apply in respect of employees whom the employer is ‘proposing to dismiss as redundant'. In this context, ‘dismiss as redundant’ means a dismissal

From: [name of employer] [of OR whose registered office is at] [insert address] company registration number [insert number] (the ‘Employer’) To: [name of employee] of [insert address] (‘you’) Dated: [insert date] Notice

Key Information Document This document specifies key information relating to your relationship with us, including details about pay, holiday entitlement and other benefits.[ Further related information may be found in [insert description of where further related information can be found].] The Employment Agency Standards (EAS) Inspectorate is the government authority responsible for the enforcement of certain agency worker rights. You can raise a concern with them directly on 020 4566 5333 or through the Acas helpline on 0300 123 1100, Monday to Friday, 8.00 am to 6.00 pm. Dated: [insert date] 1 [ Intermediary or umbrella company information You are being paid through an intermediary or ‘umbrella company’—a third-party organisation that will calculate your tax and other deductions and then pay you for the work undertaken for the hirer. We, as the employment business, will still be finding you assignments. The money earned on your assignments will be transferred to the intermediary as part of their income. They will then

To: [insert name of employer] From: [insert name of employee] I hereby give notice that I wish to opt in to Sunday working with

1 Contractor warranties and undertakings 1.1 The Contractor warrants and undertakes that: 1.1.1 the Contractor has observed and performed and shall continue to observe and perform all the terms and obligations of the Contractor under the Building Contract; 1.1.2 in respect of the design of the Works under the Building Contract, the Contractor has exercised and shall continue to exercise all the reasonable skill, care and diligence to be expected of a properly qualified and competent architect or other appropriate professional designer experienced in projects of similar scope, type, size, nature and complexity as the Works. 1.2 The Contractor's duties under this Memorandum shall be no greater and of no longer duration than the duties which it owes to the Employer under the Building Contract and the Contractor shall be entitled in any action or proceedings to rely on any limitation in the Building Contract and to raise the equivalent rights in defence of liability as it would have against the Employer had the Beneficiary been named as joint employer under the Building Contract, save with respect to any set-off or counterclaim.

This Practice Note explores IT procurement (or information technology procurement, tech procurement or technology procurement) setting out the main stages in the IT procurement process, key contract documentation, the principal legal and commercial issues and some specific cloud computing and open source software (OSS) considerations. It focuses on customer concerns but also highlights some considerations for the supplier where relevant to IT procurement. Issues specific to public sector IT procurement are not covered here, but instead, see: Public sector technology sourcing—overview, and Practice Notes: Public procurement—private sector considerations—pre-PA 2023 [Archived] and Freedom of information and public contracts [Archived]. Main stages of IT procurement An IT procurement exercise will broadly follow a lifecycle comprising some or all of the following stages (depending on the value and complexity of the procurement and the sourcing approach adopted): • the customer identifies their initial requirement for a product/service/solution in response to a business need • the customer develops a specification for the technology or IT services that will meet that business need • the customer scopes particular items of IT (software,

Obligation to repair based on a contract and/or local custom The servient owner does not have an obligation to carry out repairs necessary to ensure the enjoyment of an easement by the dominant owner (Jones v Price at para [631]) unless a statute, special local custom or an express contract provide otherwise. If the servient owner has an obligation to repair the fire escape based on either express contract or local custom (of which there is no suggestion on the facts provided), the extent of its obligation is determined by construing the relevant contractual provision(s)

Construction analysis: The Technology and Construction Court (TCC) refused to grant summary judgment against the claimant, in a claim brought against a fire engineering consultant in tort. The court was not persuaded that the claimant had no realistic prospect of establishing that the defendant had assumed a duty of care to it, in respect of economic loss.

[To be typed on headed notepaper of the Employer’s solicitors] Strictly private and confidential—to be read by addressee only [Insert name of new employer] [Insert address of new employer] [Insert date] [By hand OR By email] Dear [insert name of new employer] Our client: [Enter name of Employer] We are instructed on behalf of [enter name of Employer] of [enter Employer’s full address] in relation to the [commencement of your employment OR your proposed employment] of [enter name of Employee] following [[enter name of Employee]’s purported resignation from OR the termination of [enter name of Employee]’s employment with] [enter name of Employer] on [enter date]. [Enter name of Employee] remains subject to the obligations to our client set out in clause[s] numbered [enter clause number(s)] in their contract of employment dated [enter date] (Contract). We enclose a copy of the Contract[, together with related documents.] [Enter name of Employee]’s obligations to [enter name of Employer] To the extent that you are not already