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Checklist of factors which may (and may not) fracture the class in a scheme of arrangement or restructuring plan

Checklist of factors which may (and may not) fracture the class in a scheme of arrangement or restructuring plan The below tables provide an overview of: (i) various factors that do not create separate classes (ie do not fracture the class) and (ii) various factors that have been considered to create separate classes (ie fracture the class) in Part 26 scheme and Part 26A restructuring plan cases. Judges have found that the caselaw relating to schemes is equally applicable to restructuring plans on many issues (see Re PizzaExpress (convening) and Re Virgin Atlantic), including class formation. However, the Court of Appeal in Adler confirms that cross-class cramdown (CCCD) in restructuring plans does require different considerations (though note that leave to appeal to the Supreme Court has been granted); see Practice Note: Cross-Class Cram Down under a Part 26A restructuring plan. As a word of caution, it is important to recognise that the class analysis is very fact-specific and it is possible that another judge, faced with a...

Trust disputes—table of cases

Trust disputes—table of cases Existence and validity of trusts Topic Case name Summary Author Jurisdiction Existence and validity of trusts Provincial Equity Finance Ltd v Dines (née Breda) [2023] EWHC 103 (Ch) News Analysis: ‘By prosperous voyages I often made…And the great care of goods at random left’—resulting trust and the dominion of express trusts (Provincial Equity Finance Ltd v Dines and a Tragedy of Errors)This case demonstrates the practical difficulty of establishing a claim for resulting trust where a chaotic deceased used bank accounts for mixed purposes and establishes that an express trust may supplant the presumption of resulting trust even where the party advancing funds is not a party to the express trust. Nicholas Holland, McDermott Will & Emery UK LLP England & Wales Existence and validity of trusts Attorney General v Zedra Fiduciary Services (UK) Ltd and others [2022] EWHC 102 (Ch) News Analysis: Cy près scheme approved for £600m charitable trust to be applied to reduce the National Debt (Attorney General v Zedra Fiduciary Services (UK)...

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Simplified pre-trial appeals in Scottish summary criminal procedure—flowchart

Simplified pre-trial appeals in Scottish summary criminal procedure—flowchart In Scotland, less serious offences are prosecuted on a summary complaint. Summary procedure is regulated by Part IX of the Criminal Procedure (Scotland) Act 1995. For an explanation of summary procedure in Scotland, see Practice Note: Summary procedure in Scottish criminal proceedings. For information about criminal

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A history of EU law and thin capitalisation and transfer pricing regimes [Archived]

A history of EU law and thin capitalisation and transfer pricing regimes [Archived] ARCHIVED: This Practice Note has been archived and is not maintained. Thin capitalisation and transfer pricing are related but slightly different concepts. Some consider that thin capitalisation rules are a specific expression of transfer pricing rules. EU law applies in the context of thin capitalisation and transfer pricing in that, although direct tax is not within the competency of the EU, domestic rules must still comply with general principles of EU law and with the treaty in force at the time (currently the Treaty of the Functioning of the European Union) (the Treaty). The key Treaty provisions relevant to thin capitalisation and transfer pricing are those on non-discrimination in respect of the fundamental freedoms. Potentially applicable freedoms are: • freedom of establishment • free movement of capital, and • free movements of goods and services What are transfer pricing and thin capitalisation? Transfer pricing rules are generally rules that:...

A guide to rent review for property lawyers

A guide to rent review for property lawyers This Practice Note deals with the principles behind rent review provisions. For information on drafting and negotiating rent review clauses see Practice Notes: Rent review—a practical lease negotiation guide and Drafting index—linked rent review clauses. Onerous provisions Before getting to the rent review clause itself, the other provisions in a lease can have an impact on the reviewed rent. Points scored and gloated over when negotiating a lease can bite back when the rent comes up for review. In a weak market, the presence of onerous provisions in a lease can entirely wipe out the uplift in rent that would be achieved by a more reasonably pitched lease. In a rising market, any well-advised tenant seeking to limit rent increases at review will argue for a discount to reflect unfair or burdensome terms. While some terms are always regarded as onerous, others shift their status and effect depending on prevailing market conditions. The following are those terms most likely to be used...

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Where the parties to a divorce in which a financial consent order was made providing for one party to retain the proceeds of sale of the former matrimonial home, and the other party their pension, together with a clean break order, and the parties then reconcile and remarry each other, will the court have regard to the previous order and clean break? Will the parties only be entitled to a share in assets, including pensions, that have accumulated since they remarried? Could the remarriage constitute a Barder event sufficient to set aside the consent order?

Where the parties to a divorce in which a financial consent order was made providing for one party to retain the proceeds of sale of the former matrimonial home, and the other party their pension, together with a clean break order, and the parties then reconcile and remarry each other, will the court have regard to the previous order and clean break? Will the parties only be entitled to a share in assets, including pensions, that have accumulated since they remarried? Could the remarriage constitute a Barder event sufficient to set aside the consent order? Where a couple subsequently reconciles and remarries, in the event they were to separate again, and a fresh application would made for financial relief, and the court would not be bound to make an order identical to the order made following the breakdown of the first marriage. Section 25(1) of the Matrimonial Causes Act 1973 (MCA 1973) states that the court when deciding to exercise its powers shall ‘have regard to...

If a party to an arbitration wished to make an appeal against the arbitrators final award, say on a point of law under section 69 of the Arbitration Act 1996, should the appeal be made to the County Court or the High Court or would either have jurisdiction to consider the appeal?

If a party to an arbitration wished to make an appeal against the arbitrators final award, say on a point of law under section 69 of the Arbitration Act 1996, should the appeal be made to the County Court or the High Court or would either have jurisdiction to consider the appeal? An appeal of an arbitration award can only be brought under section 69 of the Arbitration Act 1996 (AA 1996). Such an appeal is limited to an appeal on a point of law. The court will only grant leave to appeal in very rare circumstances. For more information on the procedure for appealing an award on a point of law, see Practice Notes: AA 1996—appealing the award—leave to appeal (s 69) and AA 1996—appealing the award—appealing on a point of law (s 69). CPR PD 62, para 2.1 provides that an arbitration claim under the AA 1996 (other than under section 9: ‘Stay of legal proceedings’) must be started in accordance with the High...

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Arbitration weekly highlights—22 August 2024

This week's edition of Arbitration weekly highlights includes: a decision in England and Wales concerning anti-suit injunctions in foreign arbitral proceedings; coverage of arbitration-related decisions from Brazil, Russia, and the USA; and the ICSID caseload statistics for 2024. All this, and more in our weekly highlights.

Reference for a preliminary ruling from the Supreme Court (Ireland) concerning an arrest warrant made by the UK pursuant to the Trade and Cooperation Agreement (Alchaster)

Public Law analysis: The Grand Chamber of the Court of Justice ruled, following a preliminary reference from the Supreme Court of Ireland, on the role of an EU Member State court in executing an arrest warrant from the UK. The Court of Justice remarked on the nature of the EU-UK relationship post-Brexit, as well as the obligation on EU Member State authorities of independently verifying compliance with the EU Charter of Fundamental Rights (the ‘Charter’), even when the equivalent ECHR right has been deemed not breached. The Court of Justice held that the EU Member State court must independently examine the risk of breach of the Charter before deciding on execution of the arrest warrant, even where the matter has been determined to not be in breach of Article 7 ECHR; which may involve requesting additional information and guarantees from the issuing judicial authority, as well as objective, reliable, specific and updated information, and should refuse such a request where it has a real risk of change to the actual...