Private Client analysis: The Law Debenture Trust Corporation plc v Ukraine is a fascinating and unusual case. As a matter of procedure, it was merely an appeal of a decision not to grant summary judgment over non-payments of Notes, debt instruments in the Eurobond form. However, this took the Supreme Court on lengthy journey through the doctrines of capacity to contract, of apparent and ostensible authority, and of duress; and how all three intertwine with the plane of international law. The international law doctrine of countermeasures also featured. The Supreme Court ultimately held in the majority judgment that:—(1) foreign states recognised by Her Majesty’s government are unlimited in their capacity to contract even where they lacked capacity under their own domestic constitutional processes; (2) the conduct and context of the major institutions of a state can constitute a representation of authority and so bind that state under the doctrine of apparent authority; (3) although breaches of international law cannot themselves constitute duress without first having been incorporated in some way in English domestic law, threat to the person is a part of English law and the threat of invasion by a foreign state is a form of threat to the person and can found a defence of duress; (4) the doctrine of countermeasures was not recognised in English domestic law (Lord Carnwath dissenting). In some respects, this case is sui generis. The most novel part of the judgment, the conclusion on duress in the international context, has only limited future application (or so one hopes). However, the other parts of the judgment are still welcome reassurance for creditors who provide financing to states and their executive bodies, given recent calls by some practitioners and international observers for reform. Written by Piers Digby, barrister at Radcliffe Chambers.

Authors’ Licensing and Collecting Society (ALCS) does not deal with ‘primary rights’ (distribution rights) and remuneration, as these are dealt with via a writer’s publishing contract with their publisher, or the producer of their work. ALCS deals with ‘secondary rights’ where a third party uses a work that’s already been distributed to the public, for example, when schools photocopy books they own, or libraries lend books, or overseas TV companies retransmit UK TV signals. Royalties from ‘secondary rights’ are paid to writers through ALCS—unless the royalties come from UK library lending, when the Public Lending Right pays them.

A government scheme to compel employers to provide pensions for employees. All eligible employees should have been enrolled by 1 February 2018. Employers must make contributions towards their employees' pensions.

Ireland—Employment analysis: This article, was written by A&L Goodbody LLP’s Pensions Team. The introduction of the State’s automatic retirement savings system called ‘MyFutureFund’ has gained a lot of media coverage over the last week.

Smart boxes installed at the customer's home, which automatically dial the prefix to route calls to the selected CPS communications provider.

Pensions analysis: This decision by the General Regulatory Chamber of the First-tier Tribunal (FTT) is a rare example of a successful reference by an employer following the imposition by the Pensions Regulator of a fixed penalty notice and then an escalating penalty notice following a failure to pay contributions as required by the auto-enrolment provisions of the Pensions Act 2008. It helpfully summarises the statutory context and previous decisions of the Upper Tribunal relevant to the scope and nature of the jurisdiction of the FTT to consider a reference in such a case and the matters to be taken into consideration. It then considers the merits of the appellant’s case of ‘reasonable excuse’ based on post going astray. It gives a useful insight into the sort of evidence which may support a case of reasonable excuse in such circumstances, while warning employers against failure to take reasonable steps to ensure that post is delivered. Written by Elizabeth Ovey, barrister, Radcliffe Chambers.

Pensions analysis: The appellant company appealed against notices issued by the Pensions Regulator (TPR) imposing a fixed penalty and an escalating penalty as a result of the company’s failure to complete its redeclaration of compliance by the required date. The company’s director sought a review of the notices on the ground that they were sent to an address to which he did not have access. TPR declined to conduct a review on the ground the application was out of time, a conclusion which depended on whether the notices had been “issued” and was relevant to the question whether the First-tier Tribunal had jurisdiction to deal with the references made to it. In finding that the notices had been issued, the Tribunal set out in detail evidence as to tPR’s systems for issuing notices, directed that the general evidence need not be repeated in future cases and gave guidance as to evidence that the systems had been operated in any particular case. Written by Elizabeth Ovey, barrister at Radcliffe Chambers.

This Practice Note considers the various sanctions that are imposed upon employers and other parties for non-compliance with the pensions auto-enrolment regime and the protections afforded to workers under the regime. It considers automatic unfair dismissal or detriment for pensions reasons, whistleblowing, and enforcement. Settlement of relevant claims by COT3 or settlement agreement (formerly known as a compromise agreement) is also considered. The auto-enrolment regime, established under the Part 1 of the Pensions Act 2008 (PenA 2008), imposes a statutory duty on employers to make arrangements for the auto-enrolment of all of their ‘eligible jobholders’ into a ‘qualifying scheme’. Employers are also required to contribute to that scheme on behalf of eligible jobholders. The auto-enrolment regime includes numerous provisions imposing sanctions upon employers and other parties for non-compliance. For further information, see Practice Note: Auto-enrolment: the requirements—Sanctions for non-compliance. Employees and workers also enjoy direct protection under employment legislation in relation to their rights under the auto-enrolment regime. Right of employee not to be unfairly dismissed An employee (ie an individual who has entered into or works

FORTHCOMING DEVELOPMENT: The Pensions (Extension of Automatic Enrolment) (No. 2) Bill received Royal Assent on 18 September 2023 as the Pensions (Extension of Automatic Enrolment) Act 2023 (the Act) and was published on 19 September 2023. The Act gives regulation-making powers to the Secretary of State for Work and Pensions to (i) reduce the lower age limit at which otherwise eligible workers must be automatically enrolled and re-enrolled into a pension scheme by their employers, (ii) remove the Lower Earnings Limit from the qualifying earnings band so that contributions are calculated from the first pound earned, and (iii) modify the requirements of the annual review of the qualifying earnings band. The changes on eligibility for automatic enrolment are to be implemented after a period of consultation on the precise implementation approach and timing. The date for the coming info force of section 1 of the Act is set to be ‘on such day or days as the Secretary of State may by regulations appoint’. For further information, see: DWP press release, Work and Pensions Committee

What is certification and when is it required? The process of determining whether a pension scheme satisfies the test scheme standard for auto-enrolment purposes is referred to as certification. For defined benefit schemes (or the defined benefit element of hybrid schemes), an employer can: • certify that the scheme (or defined benefit element of a hybrid scheme) satisfies the test scheme standard for the purposes of its enrolment duties, or • delegate the certification of the scheme to the actuary in certain circumstances There are also certain circumstances in which the actuary must certify the scheme. For further information on the test scheme standard for defined benefit schemes, see 'Defined benefit occupational pension schemes' in Practice Note: Auto-enrolment—what types of scheme may be used? Note that hybrid schemes are defined, for the purposes of auto-enrolment only, as schemes that are neither wholly money purchase nor wholly defined benefit. They generally have elements of both types of benefits and, depending on the type of scheme involved, they may need to satisfy a combination of the defined benefits

FORTHCOMING DEVELOPMENT: Section 10 of the Finance Act 2022 will increase the normal minimum pension age (NMPA) from 55 to 57 on 6 April 2028 (save for members of the firefighters, police and armed forces public service pension schemes). The Finance Act 2022 will also give members of registered pension schemes a right to take their benefits before age 57, if on or before 4 November 2021 they either had an ‘unqualified right’ to take benefits or were in the process of a substantive transfer to a scheme offering an unqualified right to a protected pension age of less than 57 on or before 4 November 2021. To benefit from this new 2028 protection, the rules of the pension scheme must have included (on 11 February 2021) an unqualified right to take the entitlement to scheme benefits before age 57. For further information, see Practice Note: Increasing the normal minimum pension age (NMPA) to 57—pensions impact. When should certification be used? Certification has been designed primarily to cater for employers with

The auto-enrolment duty • Since 1 October 2012 onwards, employers have had to do the following on reaching their staging date (ie the date from which the auto-enrolment duty applies to them): ◦ enrol eligible jobholders into a qualifying pension scheme automatically ◦ allow eligible jobholders to opt out of the scheme ◦ pay a minimum level of contributions to the scheme on behalf of eligible jobholders, and ◦ re-enrol eligible jobholders (broadly) every three years • In preparation for this, employers will have had to identify: ◦ their ‘staging date’ ◦ which