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A dominant firm is one which is able to act largely independently of its competitors and customers in terms of pricing or output decisions. dominance has to be assessed within the context of an analysis of the degree of competition within a relevant market.
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Privilege in criminal investigations—checklist The following are only suggested guidelines, given that each criminal investigation will turn on its own facts. This Checklist should be read in conjunction with Practice Notes: Legal Professional Privilege in criminal proceedings and Maintaining privilege during criminal investigations. Confidentiality is key and must be maintained. If a document or communication was not confidential when it was first made, or if it loses its confidentiality, it will generally not attract Legal Professional Privilege (LPP). In order to assert privilege, careful consideration should be given to whether it is legal advice privilege or litigation privilege which is being asserted, and different considerations will apply to each. Steps to maintain legal professional privilege At the outset In the event that the client seeks advice before the criminal investigation commences: Legal advice privilege • consider whether legal advice privilege applies, ie: ◦ is the communication confidential? If yes ◦ is the communication sent by a lawyer to their client or vice versa? If yes ◦ is the communication made...
Competition law and joint ventures—checklist This checklist summarises the competition law considerations relevant to both structural and non-structural joint ventures (both merger control rules and antitrust laws). Structural or non-structural? The key consideration will be to determine whether a proposed joint venture is structural or non-structural/cooperative; the answer to this will determine how the joint venture is to be assessed. Structural joint ventures • A structural joint venture will include arrangements that produce long-lasting structural changes to the market by creating or changing the economic control of a legal entity, for example: ◦ the creation of a joint venture company ◦ the creation of a separate partnership between the parents ◦ changes to shareholder control. • Structural joint ventures will generally always fall within merger control rules (depending on notification thresholds being met). If merger control rules don't apply, it will be necessary to consider antirust rules. Non-structural/cooperative joint venture • A non-structural and/or cooperative joint venture will not include any changes to the economic control of any...
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Penalty interest rates in commercial contracts Introduction This Practice Note discusses the rule against penalties and how it applies to interest rates in commercial contracts, including a discussion of the late payment legislation in the UK. As part of the freedom of contract in business to business contracts, parties can prescribe the consequences of a breach of contract. Whether the courts will uphold those provisions in a given factual setting is a different matter. Where the parties choose to do so, those consequences are commonly an obligation to make a payment of an agreed sum. The sum may be a fixed amount or determined by reference to a formula. Penalty interest rates are an example of the latter. A drafter of a penalty interest rate clause must ensure that the clause complies with the doctrine of penalties, and, in the context of the supply of goods or services, the Late Payment of Commercial Debts (Interest) Act 1998 (LPCD(I)A 1998). It should also be considered whether an interest...
Privilege in financial remedy proceedings This Practice Note considers the different types of privilege that may arise in financial remedy proceedings, including legal professional privilege and litigation privilege. It also provides guidance on the circumstances in which privilege may be waived, considerations as to disclosure to third parties, without prejudice communications and procedural issues. In financial proceedings there is an ongoing duty to provide full, honest and open disclosure. Such disclosure includes all material facts, documents and other information relevant to the issues in the case, together with any material changes after initial disclosure has been given. Solicitors owe their clients a duty to tell them in clear terms of this duty and of the possible consequences of breach of the duty which may include criminal sanctions under the Fraud Act 2006. Where a party resists disclosure on the basis of privilege, the onus is on that party to satisfy the court in that regard. The Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, do not specifically...
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Competition law compliance—PR and communications—guide for staff Corporate communications are monitored by competition regulators, so it is important to not create a misleading or inaccurate impression of the legality of our activities in our communications. A poor choice of language (whether in press releases, media interviews or published company documents) that does not accurately state the facts can be damaging in any investigation by competition authorities and to our reputation. This guide provides key information for PR and communications staff to help you recognise competition law compliance issues, and practical tips on managing PR and communication high risk areas. 1 At all times you must: 1.1 stick to the facts; 1.2 state clearly the source of any pricing or market share information; 1.3 seek legal advice before speculating about the legality of any action. 2 Price announcements Be careful when making announcements about price changes to ensure these do not inadvertently amount to anti-competitive price signalling, eg by ensuring: 2.1 announcements are clearly intended for customers and...
Legal professional privilege (LPP)—quick guide for staff Legal professional privilege (LPP) is a fundamental right, entitling [insert organisation’s name] to withhold evidence from production to a third party or court. It allows the organisation to obtain skilled advice about the law, putting all relevant facts before our legal advisers without fear that they may afterwards be disclosed and used against us. This quick guide explains what legal professional privilege (LPP) is and how we can best protect it. 1 What is legal professional privilege? LPP is an umbrella term encompassing: —legal advice privilege (LAP), and —litigation privilege LPP protects the confidentiality of written and oral communications between lawyers and clients. It is a fundamental right, entitling a party to withhold evidence from production to a third party or a court. Legal advice privilege Litigation privilege Legal advice privilege attaches to all communications made in confidence between a client and their lawyer for the purpose of giving or obtaining legal advice.There are five essential elements to legal advice privilege; all of which...
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Can you provide guidance on whether a company number is more conclusive of identity than the company name? The issue of conclusivity may arise as regards to a conflict between the name and registered number of a company on the face of one or more documents. Such inconsistencies and mistakes may create issues relating to identity, privity and capacity. Problems such as this may arise due to simple typographical errors, or where there are a number of group companies with similar names. Inconsistency within same document On balance, the issue here is perhaps more a question of contractual interpretation than company law. From the point of view of contract law and the intention of the parties, as derived from the line of cases since Investors Compensation Scheme v West Bromwich Building Society (including Chartbrook v Persimmon Homes Limited), contractual provisions will be interpreted in accordance with what the parties are considered to have intended, judged objectively and in the light of the relevant factual background...
What is the difference between a holding or subsidiary company and a parent or subsidiary undertaking? Two distinct statutory concepts govern holding and subsidiary company relationships. The definition of 'parent and subsidiary undertaking' is the basis for consolidated accounts for groups of companies. This is to be distinguished from the general definition of holding and subsidiary company used elsewhere in the Companies Acts, other legislation, and in contracts. Holding and subsidiary companies The term 'company' in the Companies Act 2006 (CA 2006), s 1159 (ie both as to holding and subsidiary companies) includes any body corporate (CA 2006, s 1159(4)). It does not, therefore, have the wide reach of the term 'undertaking'. It does, however, include sub-subsidiaries. CA 2006, s 1159(1) defines a company as a ‘subsidiary’ of another company, its ‘holding company’, if that other company: • holds a majority of the voting rights in it, or • is a member of it and has the right to appoint or remove a majority of its...
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This week's edition of Competition weekly highlights includes, from a UK perspective: (1) the CMA issues an interim report in the Spreadex/Sporting Index remittal merger and provisionally finds competition concerns, (2) the CMA launches a consultation on draft rules for a levy for the digital markets competition regime. This week's highlights also includes, from an EU perspective: (1) an AG opinion concerning a national reference from the Czech Republic seeking clarification as to whether a collective management organisation’s failure to account for hotel room occupancy when setting copyright royalties for licensed works constitutes a breach of Article 102 TFEU, (2) an AG opinion concerning a national reference from Sweden seeking clarification as to whether compensation provided to a company owned by a Swedish municipality constitutes new or existing aid, and (3) the Commission launches a consultation on a revision of the SGEI State aid rules to address the issue of housing affordability.
This week's edition of EU Law weekly highlights includes analyses on the Court of Justice’s ruling addressing the meaning of ‘promotional offer’ under EU E-Commerce Directive, the first Unified Patent Court’s infringement decision for second medical use claims and the transparency and disclosure obligations for AI Chatbots in consumer interactions. In addition this week, the Commission launched a consultation on high-risk AI classification and obligations, introduced the EU Sanctions Helpdesk, a free service providing sanctions compliance support to European small and medium-sized enterprise, adopted the European Ocean Pact, a comprehensive strategy designed to protect marine ecosystems, the International Swaps and Derivatives Association published a position paper in response to the Commission's sustainability omnibus package, the European Data Protection Board adopted final guidelines regarding data transfers to third country authorities, the Council of the EU adopted a new cyber crisis management blueprint to guide the EU’s collective response to large-scale cybersecurity incidents or crises and adopted its position on the revision of the EU regulations on air passenger rights and airline...
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