This Practice Note considers when the common law of England and Wales is applied to determine the law applicable to contract claims. It sets out the process by which the courts of England and Wales will apply the common law to determine which law is applicable to the issues in dispute between the parties. For an overview of considerations when dealing with applicable law, see Practice Note: Applicable law—a guide for dispute resolution practitioners. For guidance on determining the applicable law of an arbitration agreement, see Practice Note: Law of the arbitration agreement (England and Wales). Why is the applicable law important? When determining a contractual dispute, it is important to know the substantive law of the country that is to be applied by the courts to determine that dispute. This is known as the applicable law, governing law or proper law. The rationale for disputes to be determined by application of the substantive law was explained in the dictum of Lord Diplock in Amin Rasheed v Kuwait Insurance (1983) as follows: ‘My Lords, contracts are incapable

This Practice Note considers the application of the common law when determining which country’s laws apply to deal with a tort dispute. It considers the general rule of double actionability as well as the flexible exception. The court will also apply the substance test. The common law only applies to torts before 1 May 1996 (or defamation claims before 2009). Terminology The choice of law for a tort claim being determined under the common law uses the following terminology: • lex fori—the law of the forum (in the High Court, the law of England and Wales) • lex loci delicti—the law of the place in which the tort was committed • double actionability—the claim must be actionable both under foreign law and English law • flexible exception—a rare exception allowing the law with the closest connection to apply Steps to determining the applicable law The following steps apply when determining the applicable law under the common law: • identify the date of harm—always check the date of harm first as this will determine

This Practice Note examines how to determine which system of law is applicable to a contract of employment or employment relationship. It takes account of the impact of Brexit and the end of the implementation period (IP) for the Withdrawal Agreement on IP completion day (11pm on 31 December 2020) and the Retained EU Law (Revocation and Reform) Act 2023 (REUL(RR)A 2023) on this area of law (see: Brexit impact, below). The Practice Note: • provides an overview of the Rome Convention and Regulation (EC) 593/2008, Rome I (see: Overview of Rome Convention and Rome I, below) • examines the key employment-specific provisions in Assimilated Regulation (EC) 593/2008, UK Rome I, including the ‘habitual place of work’ test, the ‘closer connection’ test, non-derogable provisions, overriding mandatory provisions (see: Determining the applicable law, below) • considers public policy issues and who should apply the applicable law (see: Applicable law manifestly incompatible with the public policy of the forum and Who should

Planning analysis: In Davis v Isle of Wight Council, the High Court rejected a challenge to the grant of planning permission for a renewable energy park on the basis that the case officer had shared a draft committee report with the applicant and later incorporated some of its comments. The court held that the claimant had not been unfairly prejudiced by being deprived of the opportunity to comment on a draft of the report, the purposes for which the report was shared with the applicant were unobjectionable, the planning officer exercised her independent professional judgment on the comments received and the claimant had ample opportunity himself to influence how the application was presented to the committee, to which he availed himself fully.

This Practice Note explains who is automatically entitled to apply for a special guardianship order (SGO) for a child and who requires permission from the court to apply. It sets out the criteria that the court must have regard to when deciding whether to grant permission. It also sets out the procedure for making an application for permission including the form of the application, documents in support and service. Circumstances in which a special guardianship order may be made The court may make an SGO : • as the result of a free-standing application by an individual who is entitled as of right to apply, or, an individual who has obtained leave of the court to apply • in any family proceedings in which a question arises with respect to the welfare of the child if an application has been made by an applicant who is entitled to apply or one who has obtained leave • in any family proceedings of its own motion if it considers that an SGO should be made even though no such

Interim applications in civil proceedings are governed by the CPR provisions relevant to the specific type of application. Interim applications include those for extensions of time, summary judgment, security for costs, injunctions, amending a statement of case, etc.

This Agreement is made on [date] Parties 1 [Insert name of licensor], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (API Licensor); and 2 [Insert name of licensee], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (API Licensee), each of the API Licensor and the API Licensee are a party and together the API Licensor and the API Licensee are parties. Background (A) The API Licensor has developed the Platform and controls the API (as those terms are defined below). (B) The API Licensee has developed the Application (as defined below) and wishes to [insert as appropriate, eg build on the Platform, and integrate the API Licensee’s own services with those of the API Licensor and/or disclose data or information from the Platform to the Application [or vice versa]], and requires the API to do so. (C) This Agreement sets out the terms upon which the API Licensor grants the API Licensee rights to use the API to interface between the API

The following flowchart applies to losses arising prior to 1 April 2017 which are set off against profits arising in accounting periods beginning before 1 April 2017. It sets out at what point in the calculation of taxable total profits deductions can be made and the order in which the deductions must be made for: • trading losses • UK property

Private Client analysis: The case considers the factors to be considered on an application to be appointed a deputy for personal welfare (PWD) under the Mental Capacity Act 2005 (MCA 2005) and is of particular relevance to such applications in respect of an adult child. The applicants were the ‘loving and caring parents’ of HDEB who was 22 years old. HDEB was in a residential placement as his needs could not be met at home. It was clear that HDEB was unable to make decisions about his personal welfare due to his autism and other disorders. The judge carefully considered the statutory provisions and the principles set out in Lawson, Mottram and Hopton (appointment of personal welfare deputies) (Lawson) and concluded that it was not in HDEB’s best interests to appoint his parents as PWDs for him. Written by Lynne Counsell, barrister at Addington Chambers.

This Practice Note is produced in partnership with Josephine Howe, partner and Grace Gao, counsel, both of Ogier. When a person has passed away leaving assets with a situs in the British Virgin Islands (BVI), such assets will be frozen until a grant is issued by the BVI court. For shares in a BVI company held personally or via a nominee arrangement, such shares will be effectively frozen upon the passing away of individual shareholders. A BVI grant is required to transfer the deceased shareholder’s shares. On 1 November 2017, BVI introduced the Eastern Caribbean Supreme Court (Non-Contentious Probate and Administration of Estates) Rules 2017 (2017 Rules), revoking the old probate rules. From that effective date, all new and pending applications will be subject to the 2017 Rules, irrespective of the date of death. Unless otherwise noted, all references to a rule in this Practice Note are to one of the 2017 Rules. Order of grant entitlement Where a non-BVI domiciled deceased died leaving a valid Will, probate may be granted to the

Application for Grant of Probate No Grant of Representation can be issued by the Registry unless the deceased held assets at the date of death in their sole name, which are within the jurisdiction of the Registry, and for which the asset holder confirms a grant is required. Guernsey domiciled testator The probate jurisdiction in Guernsey is administered by the Probate Registry. The daily business of the registry is administered by the Registrar. The named executor (or their advocate) must provide the Registrar with the following documents under cover of the Registry's standard application form: • the original Will • the original Codicil(s) • the original death certificate • the valuation of the gross estate (either by reference to the Guernsey estate or the worldwide estate dependent upon where the Will is first presented for probate) at the date of the testator’s death • sealed/stamped and certified copy of the grant of probate/letters of administration and Will issued outside Guernsey, including translations, if applicable • copy correspondence from each asset holder confirming the value of the asset owned

When a non-Jersey domiciled person dies leaving assets in Jersey with a value of over £30,000, the asset-holder is legally required to request that a Jersey Grant of Representation (being a Grant of Probate if the deceased died with a Will or Grant of Letters of Administration if they did not) be issued by the Royal Court of Jersey and produced to the asset holder before they are able to release those assets pursuant to Article 19(1) of the Probate (Jersey) Law 1998, which states as follows: ‘Subject to Articles 19A to 19E, and except as otherwise provide by any other enactment, the production of a grant is necessary to establish the right to recover or receive any part of the movable estate situated in Jersey of ay deceased person.’ The Jersey Grant confirms to whom the Jersey assets can legally be released, and offers an indemnity to the asset holder against them releasing the assets on the instructions of that person(s). However, if the assets held in Jersey