| Commercial Undertakings | Arbitration Act 2010: Change for Irish Companies | Approval Granted for Approved Code | Legal Protection for Charity Workers |
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COMMERCIAL UNDERTAKINGS |
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| The Council of the law Society has recently agreed new regulations to prohibit the giving of commercial undertakings by its members. The new regulations will come into effect on 1 December 2010. While the giving of commercial undertakings will not be legally prohibited until 1 December 2010, the Society’s strong advice in the meantime is that solicitors should not give commercial undertakings. In the past solicitors gave letters of undertaking to lenders in commercial property transactions. This frequently led to situations where the undertakings were not complied with and many substantial loans were not properly secured. |
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ARBITRATION ACT 2010: CHANGE FOR IRISH COMPANIES |
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The Arbitration Act 2010 gives Irish companies instant access to a recognisable and internationally accepted code of international arbitration law, originally devised by the United Nations Commission on International Trade law – colloquially known as the ‘Model law’. Why is this important? The Act enables Irish businesses to obtain an arbitration award/judgment that is easily enforced against a company in another country if that country has either adopted the Model law or has ratified the New York Convention on the Recognition and enforcement of foreign Arbitral Awards. So long as this is the case, a court in another country has very limited grounds for refusing to recognise and enforce a foreign arbitration award. An important development under the Act is that an agreement on costs made between the parties will be enforceable. The parties can agree on the allocation of costs either before or after a dispute has arisen. from a practical perspective it is best to obtain an agreement on costs written into the terms and conditions of the contract long before any dispute develops. In order to avail of arbitration as a method of dispute resolution, an arbitration clause should be included in any commercial contract. The clause should provide for Irish law to govern the conduct of the arbitration and Irish law to be the substantive law of the arbitration. |
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| APPROVAL GRANTED FOR APPROVED CODE |
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The Irish Data protection Commissioner (DPC) has recently formally approved a personal ‘Data Security breach Code of practice’ (the ‘Approved Code’). The Approved Code has been approved pursuant to Section 13(2)(b) of the Data protection Acts 1988 and 2003 (the DPA). This is the section that empowers the DPC, where he considers it necessary or desirable to do so, and after such consultation with any trade associations or other bodies representing categories of data controllers, data subjects or persons representing data subjects as he considers appropriate, to prepare and arrange for the dissemination of codes of practice for guidance as to good practice in dealing with personal data. While the Approved Code does not have the force of law it nevertheless can be taken into account in proceedings in any court or other tribunal to the extent that it appears to such court or tribunal to be relevant. |
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LEGAL PROTECTION FOR CHARITY WORKERS |
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The Minister for Community, equality and Gaeltacht Affairs has recently published an Order commencing certain provisions of the Charities Act 2009. In particular, the Order commences Section 90 of the Act, which will enable the courts to grant relief from personal liability to charity trustees for breach of trust where the opinion of the court is that while the trustee may be liable for the breach, he or she acted in good faith and ought to be excused. In such circumstances the court may then grant relief in whole or in part under the provisions of Section 90. The Charities Act 2009 contains measures to reform the law relating to charities and, in particular, to strengthen accountability and provide protection against abuse of charitable status and fraud. It provides a composite regulated framework for charities. The Act provides for the dissolution of Commissioners of Charitable Donations and bequests for Ireland (CCDB) and the establishment of a new regulatory authority. |
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