ARCHIVED: This Practice Note has been archived and is not maintained. CORONAVIRUS (COVID-19): Many arbitral organisations have responded to the coronavirus pandemic with practical guidance and/or changes to their usual procedures and ways of working. This Practice Note considers the issues arising out of multi-party and/or multi-contract arbitration proceedings under the 2017 International Chamber of Commerce (ICC) Rules of Arbitration (2017 ICC Rules). It also refers to the guidance in the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (ICC Note). The 2017 ICC Rules apply to any ICC arbitrations commenced on or after 1 March 2017, unless the parties have agreed to submit to the rules in force on the date of their arbitration agreement. The 2017 ICC Rules include: • an expedited procedure which automatically applies where the arbitration agreement is entered into after 1 March 2017 and the amount in dispute is below US$2m. In cases above this threshold, the parties must opt-in. For guidance on the ICC

Date [date] Parties 1 [name of seller] of [address] (Seller) 2 [name of buyer] of [address] (Buyer) 1 Definitions In this contract, the following definitions apply: Buyer’s conveyancer • [name] of [address] (reference [details]); Completion Date • [insert date]; Contents • the contents of the Property marked as included on the attached list; [Contents Price • £[amount in figures] [([amount in words] pounds)];] Deposit • £[amount in figures] [([amount in words] pounds)]; [Lease • [insert details of lease];] Property • [All that freehold property situate at and known as [insert address ]registered with absolute title at HM Land Registry under the Title Number OR All that leasehold property situate at and known as [insert address ]registered with absolute title at HM Land Registry under the Title Number and more particularly described in the Lease]; Purchase Price • £[amount in figures] [([amount in words] pounds)]; Seller’s conveyancer • [name] of [address] (reference [details]); Standard Conditions • the Standard Conditions of Sale (Fifth Edition—2018 Revision); Title Guarantee • [Full OR Limited] Title Number • [insert title number] 2 Interpretation 2.1 Words and phrases defined in clause 1 or elsewhere in this contract have the same meaning for the purposes of the Standard Conditions. 2.2 Where the context so admits, the expression[s]

date [date] Parties 1 [name of Seller] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] [and whose address for service in England and Wales is [address]] (Seller); 2 [name of Buyer] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] [and whose address for service in England and Wales is [address]] (Buyer); 3 [[name of Guarantor] [of OR incorporated in England and Wales (company registration number [number ])whose registered office is at] [address] [and whose address for service in England and Wales is [address]] (Guarantor).] 1 Definitions In this Agreement, the following definitions apply: Actual Completion Date • the date on which the Transfer is actually completed; Buyer's Solicitors • [name] of [address] (reference: [details]); [Charge[s] • the charge[s] appearing at entry [number] [and [number]] in the charges register of title number [title number] as at [date and time of official copy entries];] [Chattels • the items listed at Schedule 2;] [Chattels Price • £[amount in figures] [([amount in words] pounds)];] Completion Date • [date]; [Contracts • the contracts [for the [provision of services and maintenance AND/OR leasing of equipment AND/OR appointment of managing agents] [specify other contracts]] set

Any provision in an agreement, including interpretation provisions themselves, will be construed by a court in accordance with the usual rules of contract interpretation. The five principles provided by Lord Hoffmann in Investors Compensation Scheme v West Bromwich Building Society are examined in detail in the Practice Note: Contract interpretation—the guiding principles. These principles are supplemented by general guidelines (known as 'canons of construction') which can be used to assist in ascertaining the meaning of a written contract. The Practice Note: Rules of contract interpretation considers the most important of these guidelines. We are not aware of any materials that specifically address a clause of this nature in general commercial situations such as outsourcing agreements. However, in a property law context, in Berton

What does the contract provide? We would initially suggest that you review the contract and consider what provisions it specifically makes concerning the payment, nature and forfeiture of a deposit. The specific terms may offer the customer an opportunity to secure a refund. If there is no specific contractual term securing the refund for the customer, an ambiguity in the contract drafting may also offer the customer an opportunity to negotiate its return. See: Formation and interpretation—overview for Practice Notes that offer guidance as to how the terms of a contract should be interpreted and construed. However, if the contract clearly provides that the deposit paid by the customer is non-refundable in any situation, then in determining whether the customer has any options to secure its return despite the specific contractual provision to the contrary, then the enforceability of the contract provision could be scrutinised from a number of different angles. Is

A key consideration is whether Party C is purchasing the shares or the business of Party A. If Party C is purchasing the shares, then there would be no change in the legal entity of Party A, and the contract between Party A and Party B continues in effect despite the share transfer in Party A. However, at the time of entering into the contract, Party A and Party B may have agreed a ‘change of control clause’. Such a clause would normally provide that upon a change in control of one of the contracting parties (such as a share sale), then the other contracting party

For the purposes of this Q&A we have assumed the contract is a business-to-business general commercial deed. Different considerations may apply for a business to consumer deed. Issues to consider when determining whether a document which is referenced in the definitions section of a deed constitutes part of that deed or not, will depend upon a number of factors, including: • whether the remaining drafting of the deed provides for that defined document to form part of the deed ie does the deed provide that such document is ‘incorporated by reference’ (or similar)? • whether the remaining drafting of the deed provides for the parties to comply with the obligations set out in the defined document • whether the defined document is also attached as an annex, appendix or schedule to the deed, and whether the main provisions of the deed specify that such annex, appendix

Arbitration analysis: The Singapore International Commercial Court dismissed two applications brought by the respondent in an arbitration, one seeking to challenge the tribunal’s jurisdiction, and the other seeking declarations that the dispute was non‑arbitrable, or that the underlying charterparty was unenforceable, because the contract was illegal and violated Singapore’s public policy. On jurisdiction, the court considered the principles applicable to interpretation of the charterparty and, applying these, held that the applicant was a party to the charterparty containing the arbitration agreement, and the tribunal therefore had jurisdiction. (Although had the applicant not been a party to the contract, its prior conduct in separate proceedings (where it had accepted that it was a party) would not have prevented it from denying the fact now). On the second application, the court held that the issue of the illegality of the contract was a matter for the tribunal to determine, and the court would not pre-empt the tribunal’s decision by exercising its power to grant declarations. Written by Rob Palmer, partner and Hugo Petit, associate at Hogan Lovells Lee & Lee.

We assume you are referring to the recent judgments in the Parking Eye and El Makadesi cases. Drafting and negotiating a liquidated damages clause—checklist outlines key provisions and issues for consideration when drafting and negotiating liquidated damages clauses. Since the ParkingEye and Makdessi cases, the courts must follow a new, broader test of the rule against penalties (ParkingEye v Beavis; Cavendish v El Makdessi [2015] UKSC 67). If the purpose of the payment is 'extravagant, exorbitant and unconscionable' and no legitimate interest is being served then it is likely to be a penalty. The rule against penalties hasn’t been abolished altogether but it has been given an adjustment: a clause will only be a penalty if it is out of all proportion

When assessing the rights that have accrued under a contract, it is important to separate two entirely distinct ways in which a contractual relationship between two parties may come to an end. This Q&A will first look at parties’ rights after rescission and then consider rights after termination, including the thorny issue of liquidated damages. Rescission and continuing rights A contract may be rescinded by a party where its consent to entering into a contract has been vitiated in some way, commonly by a misrepresentation, undue influence or duress. The effect of rescission is to treat the contract as void ab initio (ie as if the contract never occurred). Rescission is distinct from termination, as it looks at the formation of the contract, rather than its substance or performance, and operates retrospectively. The practical impact of rescission is therefore that the parties’ rights and duties that have arisen under the contract are extinguished.

A private company may pass a resolution as a written resolution or at a general meeting, as set out in section 281(1) of the Companies Act 2006 (CA 2006). A public company may only pass a resolution at a general meeting (CA 2006, s 281(2)). The contract required for an off-market share buyback (unless it is a share buyback for the purposes of, or pursuant to, an employees' share scheme) must be approved by a members’ resolution, rather than the specific share buyback itself (CA 2006, ss 694(1), 693A). This is the case whether the contract is conditional or not. As set out in CA 2006, s 694(2), this means either: • the terms of the contract must be authorised by a members' resolution before the contract is entered into, or • the contract must provide that no shares may be purchased in pursuance of the contract until its terms have been authorised by a members' resolution An ordinary resolution

Section 92 of the Renting Homes (Wales) Act 2016 (RH(W)A 2016) will apply to a periodic standard occupation contract which arises where a standard fixed term occupation contract granted for more than seven years expires and the contract-holder remains in occupation. RH(W)A 2016, s 184(2) provides that where a contract-holder