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Mandatory Disclosure Rules (MDR) hallmarks—Table

Mandatory Disclosure Rules (MDR) hallmarks—Table This Table sets out the hallmarks for the Mandatory Disclosure Rules (MDR) regulations in effect from 28 March 2023 which implement the Organisation for Economic Cooperation and Development (OECD) model rules in the UK and entirely revoke EU Directive 2018/822 DAC 6 in the UK from the same date. It is designed to be read alongside the main Practice Note: Disclosable cross-border tax arrangements—Mandatory Disclosure Rules (MDR). The generic hallmark for a Common Reporting Standard (CRS) avoidance arrangement is any arrangement where it is reasonable to conclude that it has been designed to circumvent CRS legislation or has been marketed as or has the effect of doing so. Just because an arrangement has the effect of non-reporting does not mean that it circumvents the CRS legislation—it would also need to be reasonable to conclude that the arrangement undermines the intended policy of the CRS legislation. There are also specific hallmarks which identify known features of CRS avoidance arrangements. These specific hallmarks have been...

Digital assets and cryptoassets on death—checklist

Digital assets and cryptoassets on death—checklist The personal representatives (PRs) of an estate have a duty to administer the estate and this includes dealing with all the deceased’s digital assets, including online accounts and profiles even if they have no monetary or immediate value. While it is estimated that there are already over two million people in the UK who hold some form of cryptoasset, to date relatively few people have died with such assets in their estate and this is still a developing area of law and practice. More generally, the vast majority of the UK population is likely to have some sort of digital profile or digital asset in their estate on death. For information on what are considered to be digital assets, see Practice Note: Dealing with digital assets after death—What are digital assets? This Checklist deals with specific issues for PRs to consider where the estate contains digital assets, including cryptoassets. It focuses solely on issues relating to digital assets rather than physical assets and should...

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How to appoint a sales and marketing agent

How to appoint a sales and marketing agent This Practice Note is a ‘how to’ guide on appointing a sales and marketing agent. It includes a summary of what agency is, an explanation of alternative routes to market, factors to consider before selecting a sales and marketing agent, and practical guidance on negotiating an agency agreement. It considers the appointment of a sales and marketing agent where the agent promotes the sale of the principal’s products and makes representations about the characteristic properties of the products, as well as acting as sales agent with the authority to conclude binding contracts on behalf of the principal. What is agency? Agency is a relationship under which a principal appoints an agent to act under their direction and on their behalf for specified purposes. In essence, the principal grants authority to the agent to perform certain acts or make certain decisions for which the principal is generally considered liable. Such authority may be express, implied, apparent or ostensible. For more information, see Practice...

Economic tort of unlawful interference

Economic tort of unlawful interference As set out in The economic torts—overview, the law makes provision to protect a person’s trade or business from acts which are considered to be unacceptable. For guidance on claims for: • procuring a breach of contract, see Practice Note: The tort of procuring a breach of contract • intentional violation of rights in a judgment debt, see Practice Note: The Marex tort (interference with a judgment debt) • conspiracy (both by lawful and unlawful means), see Practice Note: Civil conspiracy claims (economic tort) • economic duress, see Practice Note: Economic duress—undue influence—tort of intimidation • intentional violation with the claimant’s rights in a judgment debt, see Practice Note: The Marex tort (interference with a judgment debt) Civil claims involving fraud and dishonesty often rely on pleading one or more of the economic torts, on which see Practice Note: Civil fraud—causes of action (heads of claim). What is the tort of unlawful interference? Causing loss by unlawful means exists where the defendant interferes with...

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External data protection officer (DPO) appointment terms—company to individual—pro-client

External data protection officer (DPO) appointment terms—company to individual—pro-client Delete clause 3.6 of Precedent: Consultancy agreement—company and individual—pro-client and replace it with the following clauses 3.6 and 3.7: 3.6 Your method of work is your own and you will carry out your tasks as data protection officer (DPO) (as set out in the Schedule in an independent manner. You will not receive (and the Company[ and its Group Companies] will not seek to provide you with) any instructions regarding the exercise of those tasks. 3.7 Subject to clause 3.6, you will pay due regard to the reasonable requests of the [Board OR Chief Executive] and will, where possible, work and co-operate with any employee, worker, agent or other consultant of the Company[ or any Group Company] in the provision of the Services. Insert the following provisions in Precedent: Consultancy agreement—company and individual—pro-client as new clauses 3.14 and 3.15. 3.14 You acknowledge that the Company: 3.14.1 has appointed you on the basis of your professional...

Letter recommending insurance—demands and needs—law firms

Letter recommending insurance—demands and needs—law firms   We have reached a stage in your matter where we believe it would be in your best interests to buy [insert type of insurance]. We have suggested you buy the insurance from [state name of insurance provider to whom you have introduced the client for insurance or who has given you delegated authority to issue a policy]. This is something we have already discussed and you have agreed that we will [state what you will do to arrange the insurance, eg complete and submit a proposal form on your behalf or issue the policy under delegated authority]. You have consented to us disclosing relevant personal data and information to [state name of insurance provider] for this purpose. Fees, charges and commission Insurance premium The [insert type of insurance] insurance policy costs £[insert amount or where it is not possible to give a specific amount, the basis for the calculation of the premium]. This is called the 'insurance premium'. [Explain what you...

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Legislation to bring UK crypto activity within regulatory perimeter published

MLex: Draft legislation that seeks to define cryptoassets and stablecoins (and to bring certain activities related to them within the regulatory perimeter) has been published by the UK finance ministry. The legislation covers stablecoin issuance, as well as cryptoasset custody, trading and staking. Under the future regulatory regime, crypto providers that want to offer regulated products or services to UK consumers will have to be authorised by the Financial Consuct Authority (FCA), but ‘truly decentralised’ firms have been exempted from authorisation.

‘Half the truth is often a great lie’—Benjamin Franklin (Expert Tooling and Automation Ltd v Engie Power Ltd)

Commercial analysis: A case brought to the Court of Appeal challenging the High Court’s decision on the scope of fiduciary duty, informed consent and dishonesty. The court clarified that agents must fully disclose commissions (including the amount and method of funding) to avoid breaching fiduciary duties. Engie Power could only be liable as an accessory if dishonest and the court found the limitation period began when commission was paid, not when the contract was signed. The appeal was allowed in part. Written by Alexander Whatley, barrister at 3PB Chambers.

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141 Subsidiary acting as authorised dealer in securities

(1)     The prohibition in section 136 (prohibition on subsidiary being a member of its holding company) does not apply where the shares are held by the subsidiary in the ordinary course of its business as an intermediary.(2)     For this purpose a person is an intermediary if he—(a)     carries on a bona fide business of dealing in securities,(b)     is a member of or has access to a [UK regulated market], and(c)     does not carry on an excluded business.(3)     The following are excluded businesses—(a)     a business