This Practice Note has been archived and is not maintained. It summarised key legal and regulatory changes that were expected to affect in-house lawyers in 2022. While some were set in stone, others were more speculative or subject to the parliamentary timetable. It was last updated on 25 November 2022. Commercial The table below represents edited highlights that are not sector specific. For more details, see: • Commercial tracker Category Details Expected or actual date Unjust enrichment and contract drafting(Updated) In Barton v Gwyn-Jones [2019] EWCA Civ 1999, the Court of Appeal addressed whether the so-called ‘Costello principle’ precluded a claim in unjust enrichment by an agent for an introduction fee where an oral contract governed the arrangement. The court’s analysis turned on the precise interpretation of the remuneration terms and provides a valuable lesson on the failure of parties to cover all possible outcomes by way of express agreement.See News Analysis: Contractual silence—a gateway for unjust enrichment (Barton v Gwyn-Jones).Permission to appeal to the Supreme Court granted on 25 February 2021. Supreme

This Practice Note answers frequently asked questions about the drafting and negotiation of termination provisions in business-to-business (B2B) services agreements. Services agreements may be brought to an end in a number of different ways: by completion of the parties’ obligations, expiry of the term, the exercise of an express contractual termination right, termination at common law for repudiatory breach, agreement between the parties, force majeure (where the agreement so provides) and various other possible circumstances. This Practice Note focuses on practical questions concerning the drafting and negotiation of express termination provisions in services agreements. It does not cover termination of a rolling agreement on notice, termination at the end of a fixed term, or renewal issues. For a more general set of FAQs in relation to contract termination, see Practice Note: Contract termination—FAQs. For further guidance, see: • Practice Note: Terminating commercial contracts • Practice Note: Negotiation guide—services agreements • Practice Note: Outsourcing remedies—step-in rights, service credits, liquidated damages and termination • Practice Note: IT outsourcing—transition and termination issues • Practice Note: Outsourcing termination rights • Practice

This Agreement is made on [insert date] parties 1 [insert name of manufacturer ][of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at ][insert address] (Manufacturer); and 2 [insert name of customer][ of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at ][insert address] (Customer), each of the Manufacturer and the Customer being a party and together the Manufacturer and the Customer are the parties. Background: (A) The Manufacturer is a manufacturer of [insert]. (B) The Customer Group distributes and sells [insert]. (C) The Manufacturer wishes to Manufacture and sell to the Customer, and the Customer wishes to purchase, the Product on the terms and conditions of this Agreement. The parties agree: 1 Definitions and interpretation In this Agreement: Affiliate • means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity; [Agreed Price Period • means the first Contract Year and any subsequent consecutive periods agreed pursuant to clause 8.4 or, in the absence of agreement, the next Contract Year;] Agreement • means this Manufacturing Agreement; Applicable Laws • means: (a) any law, statute, regulation, by-law or

This Practice Note provides an introduction to arbitration in Thailand. Note: Thai court judgments referred to in this Practice Note are not reported by LexisNexis® UK. Arbitration in Thailand—the legislative framework The Arbitration Act 2002 (B.E. 2545) (AA 2002) governs all arbitrations seated in Thailand, both domestic and international. AA 2002 is based substantially on the United Nations Commission on International Trade Law (UNCITRAL) Model Law (the Model Law), but with some minor differences, including that: • under AA 2002, s 23, arbitrators may face civil liability for performing their duties if they performed wilfully and grossly negligently causing damage to any of the parties • under AA 2002, s 23, arbitrators who demand or accept benefits without lawful justification are subject to criminal penalties and civil liabilities • the Model Law does not address arbitrators’ liability, and • AA 2002, s 15, states explicitly that a government agency and a private party may agree to settle their contractual dispute by arbitration, irrespective of whether or not the contract is an administrative contract Relevant arbitral bodies in Thailand The

This Practice Note explains how tort and delict claims are dealt with under Article 7(2) of Regulation (EU) 1215/2012, Brussels I (recast). It considers the meaning of tort and delict claims under Article 7(2) and explains how the article is to be interpreted. One key element in the application of the article is the determination of where the harmful event occurred and this is considered alongside examples for specific types of claims. The Practice Note also considers the position on co-defendants and on claims for a declaration of non-liability in tort, delict or quasi-delict. It should be noted that Article 7(2) is a derogation from the general rule, set out in Article 4 of Regulation (EU) 1215/2012, Brussels I (recast), that the defendant is sued in the courts of the jurisdiction in which they are domiciled. For an understanding of the application of Article 4, see Practice Note: Brussels I (recast)—domicile (Arts 4 and 63). For guidance when dealing with contract claims under the regulation, see Practice Note: Brussels I (recast)—contract

The Pensions Regulator (TPR) and the Financial Conduct Authority (FCA) have published a joint regulatory consultation and consultation response in CP26/1 setting out how a new value for money (VFM) framework could operate consistently across defined contribution (DC) workplace pensions. The proposals are designed to move the industry away from narrow cost-based assessments and towards a more holistic and comparable evaluation of the value delivered to pension savers in both trust-based and contract-based schemes. The proposed framework is intended to enable trustees, providers and governance bodies to assess the long-term performance of DC pension schemes for savers, improving transparency and competition by making it clearer which schemes deliver good value, and which do not, and supporting better retirement outcomes. The FCA has also published its response to feedback on its earlier consultation CP24/16 and the new consultation on revised detailed rules and guidance for contract-based schemes are to be implemented through the FCA Handbook. For trust-based schemes, where the Department for Work and Pensions (DWP) will legislate for the framework through the Pension Schemes Bill currently before Parliament, CP26/1 serves as discussion paper intended to gather timely input from the industry to help shape the detailed regulations and guidance that DWP and TPR are set to develop. The deadline for responding to consultation CP26/1 is 8 March 2026.

Arbitration analysis: The Court of Appeal re-affirmed the well-known English law position (overwhelmingly) in favour of enforcing New York Convention awards, with the public policy exception being very narrow construed, requiring the party invoking it clearly and specifically to prove it. At the same time, the court acknowledged that effective consumer protection was an important aspect of public policy, which was enshrined in primary legislation in the Consumer Rights Act 2015 (CRA 2015). Provided that the CRA’s substantive requirements were met (viz. one was a consumer, the contract had a close connection with the UK, and its core term was both untransparent and unfair), the court would give effect to the unequivocal provision of CRA 2025, s 62 that ‘[a]n unfair term of a consumer contract is not binding on the consumer’, and refuse to enforce a Convention award rendered based on that term, notwithstanding the (otherwise) narrowness of the public policy exception. Written by Thomas Wong, barrister at Twenty Essex (London) and Denis Chang’s Chambers (Hong Kong).

Arbitration analysis: The Commercial Court (the ‘Court’) decided an appeal under section 69 of the Arbitration Act 1996 (AA 1996) from a Partial Final Award by an arbitration tribunal (the ‘Tribunal’). The underlying dispute concerned the cancellation by the Defendant Buyers (‘Buyers’) of a Memorandum of Agreement (the ‘MOA’) for the sale of the MV ‘LILA LISBON’ (the ‘Vessel’). Seller failed to deliver the Vessel by the required cancellation date. In the subsequent arbitration, the Tribunal found that this failure was due to Seller’s ‘proven negligence’ and went on to award Buyer loss of bargain damages for the difference between the contract price and market price of the Vessel. The Court found, however, that this aspect of the award was wrong in law. The trigger for the right to claim damages under Article 14 of the MOA was a failure to give notice of readiness by the relevant cancellation date. Such a failure was not a repudiatory breach of the contract and could not give rise to loss of bargain damages. Written by Alex Wilbraham, independent arbitrator and member of Arbitra International.

The Solicitor's Regulatory Authority (SRA) has updated its warning notice on the use of non-disclosure agreements (NDAs). This comes after the SRA updated and then removed updated guidance in July 2024, stating that update was an administrative error. The warning notice covers the use of NDAs and is relevant to all NDAs regardless of the context in which they arise. It addresses topics such as the regulatory obligations of those running law firms, the SRA principles, and concerns the SRA has regarding the use of NDAs. This new update to the warning notice has removed the sentence 'NDAs include any form of agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential' in the section 'Is an NDA needed?' It has also removed the sentence 'A settlement agreement is not valid unless legal advice has been provided by a relevant legal adviser' in the section 'Funding and your duty to your client'.

The Contracts (Rights of parties'>Third Parties) Act 1999, which creates an entitlement for a person, not party to a contract, to enforce a term of that contract in its own right where the contract confers or purports to confer a benefit on that third party.

The term used whereby an employee agrees to contract out of his/her statutory employment law rights by signing a compromise agreement.

'gastric illness' means any gastrointestinal illness arising from a contract'>breach of contract or breach of statutory duty or common law duty in respect of services, food and beverages provided in relation to a package holiday