Allen & Overy LLP

"No Variation" Clauses Weakened By Court Of Appeal

When is a change not a change? One answer to that paradox is: when it is an attempted contractual variation. Such variations can fail for a number of reasons: lack of consideration, lack of clarity in what is agreed and an…more
| Commercial Law & Contracts

Correcting Drafting Errors – What Is The Best Approach And What Evidence Is Admissible?

The High Court held that a mistaken reference in an interest rate swap confirmation to the 1992 ISDA Master Agreement instead of the 2002 ISDA Master Agreement could not be corrected by interpretation. However on the facts the…more
| Civil Procedure, Finance & Banking

Default Interest Provision Breaches Penalty Rule (Obiter)

Following the Supreme Court's new test for penalties in Cavendish v Makdessi, Snowden J found (obiter) in Hayfin Opal Luxco 3 SARL & anr v Windermere VII Cmbs Plc & ors [2016] EWHC 782 (Ch) that a default interest provision…more
| Finance & Banking, Securities Law

China Merger Control: MOFCOM Mounting Pressure On Failure To Notify Reportable Transactions

China’s MOFCOM continues to actively pursue companies failing to notify deals. Three new fine decisions published on 3 May 2016 illustrate a trend toward enhanced scrutiny and greater severity. Companies are targeted…more
| Business Organizations, Mergers & Acquisitions, International Law & Trade

Termination For Repudiatory Breach: Do Contractual Notification Provisions Apply?

A party who terminated a contract for common law repudiatory breach was not obliged to follow contractual termination provisions (including as to a cure period and notice). In Vinergy International (PVT) Ltd v Richmond…more
| Business Organizations, Civil Procedure, Commercial Law & Contracts

Interpretation Of Exclusion Clauses

The Court of Appeal has twice in two months handed down judgments on how the return to literalism (post the Supreme Court’s ruling in Arnold v Britton) applies to exclusion clauses. This is an important development for all…more
| Civil Procedure, Commercial Law & Contracts

How Much Would You Charge To Let Your Counterparty Breach The Contract – Wrotham Park Damages

The Court of Appeal's decision in Karen Morris-Garner & Andrea Morris-Garner v OneStep (Support) Ltd [2016] EWCA Civ 180 suggests that Wrotham Park damages may become more common as a remedy for breach of contract. These damages…more
| Civil Procedure, Civil Remedies, Commercial Law & Contracts

Clause Headings: When Do They Matter (And When Do They Not?)

Burton J stated that he would find it "… impossible not to be assisted" by a clause heading in construing it, despite a provision that "… headings shall be ignored". Citicorp International Limited v Castex Technologies Limited,…more
| Business Organizations, Civil Procedure, Commercial Law & Contracts

UK Enforcement Of Financial Sanctions Likely To Rise

The new UK Office of Financial Sanctions Implementation (OFSI), part of HM Treasury (HMT) opened on 31 March 2016. This may signal a shift towards more aggressive enforcement of the financial sanctions regime in the UK…more
| Business Organizations, Finance & Banking, International Law & Trade

Wide Interpretation Of Release Clause In Settlement Agreement

A settlement agreement relating to a dispute over legal fees of GBP 130,000 also covered a subsequent GBP 70 million claim for breach of contract and negligence. The existence of a potential claim for breach of contract and…more
| Civil Procedure, Commercial Law & Contracts

Securitisation Disclosure Requirements: ESMA Clarifies Article 8b Expectations

The European Securities and Markets Authority (ESMA) has recently published a statement clarifying its position with respect to the application of the securitisation disclosure obligations provided for under article 8b of the EU…more
| Business Organizations, International Law & Trade, Securities Law

Effect Of Non-Exclusive English Jurisdiction Clause And Forum Non Conveniens Waiver On Application To Stay English Proceedings

Where a contract contains a non-exclusive English jurisdiction clause as well as a forum non conveniens waiver, a stay may nevertheless be granted if there are very strong or exceptional grounds, which were unforeseen and…more
| Civil Procedure

Carried Interest: Belgian Ruling Commission Confirms Application Of Stock Option Law

The Belgian Stock Option Law sets out the tax treatment of stock options, thereby eliminating the uncertainty as to the taxable value of the stock options. In the past, the Belgian Ruling Commission has been reluctant to confirm…more
| Business Organizations, Finance & Banking, Securities Law, Taxation

SEP-Based Injunctions: Down But Not Out

One important question for standard essential patent (“SEP”) holders is whether they can still seek and enforce injunctions. Some take the view that the act of seeking injunctive relief is inherently inconsistent with an SEP…more
| Civil Procedure, Intellectual Property, International Law & Trade, Science, Computers, & Technology

When Does An IP Owner Become An IP Abuser?

Over the last two years, China has ramped up its efforts with antitrust enforcement. This also includes IP related abuse. But what does IP abuse mean? IP law confers the right to exclude – which means that an IP owner can choose…more
| Intellectual Property, Science, Computers, & Technology
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