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Securities Financing Transactions Regulation (SFTR)—timeline [Archived] ARCHIVED: This Practice Note is archived and is no longer maintained. This Timeline outlines both the proposal for the Securities Financing Transactions Regulation and the subsequent EU and UK developments in relation to the Regulation. In the EU, the European Commission undertook a significant amount of work on shadow banking, which culminated in its September 2013 'Communication on Shadow Banking'. One of the priority areas identified in the Communication was increasing the transparency of securities financing transactions (SFTs). The Communication also referred to enhancing the regulatory framework for investment funds, including undertakings for collective investments in transferable securities (UCITS) and alternative investment funds (AIFs) (see Practice Notes: Undertakings for Collective Investment in Transferable Securities—essentials and UK AIFMD—essentials for further information). The EU Regulation on reporting and transparency of securities financing transactions (Regulation (EU) 2015/2365) (the EU SFTR) is the European Commission's legislative response to issues identified in the Communication. A majority of the provisions in the EU SFTR came into force on 12 January 2016. Following the end of the...
Guide to the destination of the Insolvency Rules 1986, SIÂ 1986/1925 in the Insolvency (England and Wales) Rules 2016, SIÂ 2016/1024 [Archived] This Checklist has been archived and is not maintained. This destination table, predominantly based on the version originally produced and published by the Insolvency Service on its website, indicates the destination of provisions in the Insolvency Rules 1986, SI 1986/1925 (IR 1986) in the Insolvency (England and Wales) Rules 2016, SI 2016/1024 (IR 2016). The IR 2016 broadly derive from the IR 1986. However there is rarely an exact match as the structure of the IR 2016 is different, the language has been modernised and there have been significant changes, in particular as a result of amendments to the primary legislation made by the Enterprise and Regulatory Reform Act 2013 (ERRA 2013), the Deregulation Act 2015 (DA 2015), and the Small Business, Enterprise and Employment Act 2015 (SBEEA 2015). Furthermore the information requirements previously contained in prescribed forms have now been imported into the relevant rule as specified content. Finally...
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Liquidated damages v penalty clause—checklist As seen in Practice Note: Contract interpretation—distinguishing between liquidated damages and penalty clauses, the task of determining whether or not a liquidated damages clause may be held to be unenforceable as a penalty is not always an easy one. While it will be a matter of construction for the courts in each case, there are a number of factors to consider when analysing the scope of an alleged liquidated damages clause and whether or not it may be susceptible to challenge as a penalty. If drafting a liquidated damages clause, it is essential that you keep these factors in mind in drafting the clause (and its relationship with related clauses). See: • Drafting and negotiating a liquidated damages clause—checklist • Precedent: Liquidated damages clause For specific consideration of how clauses in commercial contracts which provide for ‘default interest’ have been considered in the authorities, see: • Penalty interest rates in commercial contracts • Contract interpretation—distinguishing between liquidated damages and penalty clauses—When might default interest be...
Choosing a termination right—flowchart This Flowchart illustrates the issues to be considered when choosing a method for termination of a commercial contract. It covers rights to terminate at common law for repudiatory breach and contractual rights to terminate, contract breach and no fault termination scenarios. It is important to remember that rights to terminate a contract may arise at common law (for example, in the event of repudiatory breach) and under the express terms of the contract. Where an agreement is silent as to contract termination, in the event of a dispute, the courts will apply common law principles. To avoid uncertainty, parties often include express contractual clauses which provide for the termination of a contract. In general, contractual rights to terminate are in addition to, and not in substitution for, common law rights (unless common law termination rights are successfully excluded by express terms). Termination should not be attempted without fully understanding the different options available to a party and the consequences of attempting to terminate. Where more than one right to terminate is available, carefully consider
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Terms and conditions—first time issuer's negotiation checklist What this checklist covers This checklist outlines the key points that a lawyer advising a first time issuer should check and, if necessary, seek to amend when reviewing English law terms and conditions for an issue of debt securities. This checklist contains material relevant to: • secured and unsecured debt securities • debt securities constituted by a trust deed, and • debt securities issued without trust deeds, such as: ◦ debt securities issued under a fiscal agency structure—for information on fiscal agents, see Practice Note: Role of a fiscal agent, and ◦ debt securities constituted by an instrument executed by the issuer (and guarantor, if applicable) without a trustee, of the kind used in issues of mini-bonds (a bond instrument) This checklist should be read together with Practice Note: Terms and conditions—first time issuer's guide, which: • explains the practical aspects of the key individual provisions (conditions) usually found in the terms and conditions of debt securities • compares them with the...
Will drafting—gifts to minors This Practice Note provides an overview of considerations where a testator wishes to benefit minors in their Will. It also highlights other resources relevant to making gifts to minors. Types of provision for minors The starting point is that a gift to a minor beneficiary will need to be held for them until they reach 18. There are, therefore, a number of options where a testator wishes to benefit a minor: • a legacy may be vested in the beneficiary via the minor's parents or guardians on the testator's death if they have not reached 18 • the surviving spouse may be left the relevant estate for life, on the basis that if they do not survive the testator the assets will pass to surviving issue immediately or at a chosen age. See Precedents: Will—to spouse on flexible life interest trust, remainder to children absolutely and Will—to spouse absolutely, then to children absolutely • a gift may be left contingently on the...
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Music publishing agreement—pro-publisher This Agreement is made on [date] Parties 1 [Insert name of Publisher] a company incorporated in [England] with registered number [company number], whose registered office is at [address] (Publisher); and 2 [Insert name of Writer] of [insert address] (Writer). Background (A) The Writer is a composer of musical works and/or an author of lyrics of literary works; (B) The Publisher is engaged in the business of music publishing throughout the Territory and has, inter alia, facilities for the administration and exploitation of musical works; and (C) The Publisher wishes to acquire and the Writer wishes to grant to the Publisher the exclusive right to the Writer’s share of the Compositions, subject to the terms of this Agreement. It is agreed as follows: 1 Definitions and Interpretation 1.1 In this Agreement: Accounting Period • means each six monthly period ending on 30 June and 31 December; Advance • means all monies paid to the Writer by the Publisher other than royalties. Such...
Guarantee and indemnity—seller obligations—private M&A—asset purchase This Deed is made on [insert day and month] 20[insert year] Parties 1 [insert name of guarantor entity] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (the Guarantor); and 2 [insert name of the buyer] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (the Buyer). BACKGROUND: (A) The Buyer has agreed to purchase the Business as a going concern pursuant to the terms of the APA. (B) The Guarantor has agreed to guarantee the performance by the Seller of its obligations and liabilities under the APA and provide the Buyer with an indemnity in respect of such obligations of the Seller. The parties agree: 1 Definitions and interpretation 1.1 In this Deed, unless otherwise provided: APA • means the asset purchase agreement between the Buyer and the Seller made on or...
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How can a conditional fee arrangement be adopted from a litigation friend to a personal representative? Conditional fee arrangements A conditional fee arrangement (CFA) is: • an agreement with a person providing advocacy or litigation services (ie your firm) • that provides for your fees and expenses (ie your base costs and disbursements), or any part of them to be payable only in specified circumstances—usually in the event that your client succeeds in their matter For further guidance on CFAs generally, see: CFA—overview. Litigation friends A litigation friend is required where any of the following persons is party to proceedings: • a person who lacks capacity (P), defined by Court of Protection Rules 2017, SI 2017/1035, r 2.1 and paragraph 2 of Schedule A1 to the Mental Capacity Act 2005 (MCA 2005) as: ◦ any person (other than a protected party) who lacks or, so far as consistent with the context, is alleged to lack capacity to make a decision or decisions in relation to any matter...
Can attorneys appointed by a company delegate the power to execute deeds? We have assumed that the donor of the power of attorney is a company under the Companies Act 2006 (CA 2006). Documents may be executed by companies incorporated under CA 2006 either: • by or on behalf of the company (in the case of simple contracts) • by the company (in the case of deeds) Under CA 2006, any person acting under the company’s express or implied authority can enter into a simple contract on the company’s behalf. Unlike simple contracts, there is no option for a deed to be made ‘on behalf of‘ a company. To be binding on a company, a deed must be executed by the company in accordance with the provisions of CA 2006. A company can execute a deed by: • using its common seal, or • signature of its officers (two authorised signatories (every director and the company secretary are ‘authorised signatories’) or by one director in the presence...
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Commercial analysis: An appeal was brought to the Supreme Court to determine the correct characterisation of a contract. The dispute related to whether two parties had varied an existing contract or rescinded and replaced it with a new one. The Court reviewed the applicable principles and decided that the agreements in question did constitute new agreements rescinding and replacing the former contracts. The appeal was therefore dismissed. Written by Alexander Whatley, barrister at 3PB Chambers.
Employment analysis: New Presidential Guidance has been issued by Judge Barry Clarke, the President of the Employment Tribunals for England and Wales, on taking oral evidence by video or telephone from persons located abroad. Separate new guidance has also been issued by Judge Susan Walker KC, the President of the Employment Tribunals for Scotland. Both guidance documents take effect on 27 January 2025 and the previous joint guidance has been revoked. It should be noted that the procedures are now notably different North and South of the border.
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