Scope of this Practice Note This Practice Note examines in detail the issues arising where an English law firm is asked to deliver an English law legal opinion in connection with a finance transaction involving a borrower or obligor incorporated outside England and Wales (a foreign borrower or foreign obligor). For a form of such legal opinion, see Precedent: Legal opinion letter: Foreign borrower entering into an English law secured bilateral facility agreement. The nature and function of an English law legal opinion An English law legal opinion in a finance transaction is a professional statement of legal conclusions given by an English law firm as to specified matters of English law as at a particular date. It is not a guarantee of commercial outcome, nor does it eliminate litigation risk. It provides reasoned legal analysis within defined parameters and is subject to stated assumptions and qualifications. In cross-border transactions, the English law opinion typically addresses the validity, binding

This Checklist relates to English law legal opinions which are typically issued by a lender's lawyers as a condition precedent to the utilisation of a loan facility. It assumes that the loan is bilateral with a bank lender incorporated in the UK and that the addressee of the legal opinion is the Lender which is the client of the law firm issuing the legal opinion. It also assumes that the Borrower is a company incorporated in England and Wales, the transaction documentation which is being opined upon is governed by English law and the underlying loan is unsecured. However, for assumptions which are typically included where the loan is secured or where the transaction has a cross-border aspect, see Additional assumptions to be considered where the loan is secured and Additional assumptions to be considered where the transaction has a cross-border aspect below. It forms part of a set of checklists relating to legal opinions. The other Checklists are: • English law legal opinion— qualifications checklist, and • Checklist for reviewing a foreign law legal opinion The

This Checklist refers to English law legal opinions which are typically issued by a lender's lawyers as a condition precedent to the utilisation of a facility. It assumes that the loan is bilateral with a bank lender incorporated in the UK and that the addressee of the legal opinion is the Lender which is the client of the law firm issuing the legal opinion. It also assumes that the borrower is a company incorporated in England and Wales, the transaction documentation which is being opined upon is governed by English law and the underlying loan is secured. However, for qualifications which are typically included where the loan is secured and where the transaction has a cross border aspect, see Additional qualifications to be considered where the transaction has a cross-border aspect below. This Checklist forms part of a set of checklists relating to legal opinions. The other Checklists are: • English law legal opinion—assumptions checklist, and • Checklist for reviewing a foreign law legal opinion The purpose of qualifications in a legal opinion A legal

What does this Practice Note cover? This Practice Note outlines the primary differences between the ISDA documentation governed by New York law and that governed by English law. English and New York law are the two most commonly selected governing laws for the International Swaps and Derivatives Association (ISDA) documentation, particularly where counterparts from different jurisdictions are looking to agree a governing law which is mutually acceptable. The ‘Cross-Border Multi-Currency ISDA Master Agreement’ is designed to be fully enforceable under either choice of governing law. This has been achieved not only through careful drafting but also through the influence of ISDA itself in lobbying national legislators to introduce legislation which supports the cross-border market in financial transactions documented under its standard terms. As such, within the ISDA Master Agreement, Schedule and accompanying documents there will appear to be little variation, outside of the additional terms agreed in Part 5 of the ISDA Master Agreement, which are discussed below. The major differences between English law and New York law documents are shaped

Exercises have been carried out to persuade members and former members to take their accrued rights away somewhere else. There are advantages in administrative savings for pension funds – but the cost in advisory fees (each member should really receive individual financial advice) and cash incentives may be too high.

What is an enhanced capital allowance? This Practice Note is about ‘green’ enhanced capital allowances (ECA). These provide a tax relief for businesses on their investments in certain categories of plant and machinery that are considered to have a positive impact on the environment. The categories of plant and machinery that qualify for the ‘green’ ECA were significantly reduced from April 2020. Since 1 April 2020 (for corporation tax purposes) or 6 April 2020 (for income tax purposes), expenditure on energy and water-saving technologies has not qualified for the ECA. For more information on why the government made this decision and how many businesses were expected to be affected, see News Analysis: Budget 2018—capital allowances. The types of energy and water-saving technologies that qualified for the ECA were listed on the government’s energy and water technology lists. The government intends to maintain the energy technology list as a means of disseminating information about the most energy efficient products available, but the products listed no longer qualify for the ECA. As detailed below, green ECAs were further narrowed

Procedure allowing at least nine Member States to implement measures, when the objectives cannot be attained by the EU as a whole.

Pensions analysis: The Pensions Ombudsman (PO) has partially upheld a complaint about the payment of an enhanced early retirement pension. Martin Scott of gunnercooke LLP looks at the decision.

An investment strategy by which managers aim to add incremental performance to an index return.

PI & Clinical Negligence analysis: Deputy District Judge Rathod, sitting at the Court County in Basildon, has held that where a claimant succeeds in a claim for damages at Trial and beats their own Part 36 offer, the interest on costs incurred post-expiry of the offer is calculated by applying x% per annum to the aggregate of all costs incurred by the claimant after expiry (‘the Aggregate Costs method’). Interest is not calculated on each individual item of costs incurred after expiry of the offer, based on when that individual item of costs was incurred (‘Individual Item method’). This case is relevant for all practitioners advising on Part 36 offers. It provides much needed clarity on the proper approach to interest on costs post-expiry. This may make a real difference to the decision to accept a Part 36 offer, particularly with respect to costs not incurred until closer to trial. This case is also notable for its holding that the court was not bound by the result of relevant Court of Appeal authority, which was limited to its facts. Written by Kyran Kanda, barrister at St Philips Chambers.

The lifetime allowance for an individual covered by enhanced protection.

Pensions analysis: In the latest pensions redundancy case, the High Court has upheld a member’s appeal against a decision of the Pensions Ombudsman concerning her entitlement to an unreduced early pension. The member, Ms Downe, argued that she had been made redundant and was therefore entitled to an unreduced pension under the terms of her pension scheme rules. Stephen Richards, partner and Katie Whitford, associate, both at Stephenson Harwood LLP, report on the implications of the decision.