Hong Kong: Trust Litigation Update

Last Updated: 31 January 2003

Put not your trust in trusts? Lessons from the Thyssen litigation

Trust arrangements have in recent decades become an increasingly widespread aspect of Hong Kong commercial and family life (even if not quite yet as common as the BVI company). Many trust arrangements were set up in the late 1980s and 1990s, common motives including (i) protection of assets in the uncertain period leading up to the 1997 resumption of Chinese sovereignty; (ii) the securing of fiscal benefits. However, the long-term nature of trust arrangements means that it is not uncommon for schemes set up in the 1970s, ‘60s, ‘50s or even earlier to give rise to disputes many years later as the identities and interests of beneficiaries change, and sometimes simply because circumstances change fundamentally over the decades. Many disputes of this sort are resolved relatively discreetly, by arbitration, private court hearings or agreement. From time to time, however, they enter the public domain for one reason or another. The recently-resolved Thyssen trust litigation contain some useful lessons for those involved in either setting up such trusts or in dealing with any disputes which arise in relation to them.

The Thyssen trust

In 1983, Baron Hans Heinrich Thyssen-Bornemisza settled some very substantial business assets upon trust in Bermuda. The trust was operated by an independent supervisory board.

The purposes for its establishment are said to have been three-fold: (i) to protect assets in connection with a divorce in which the Baron was at that time embroiled; (ii) to assist business stability after the Baron’s death; (iii) to minimise disputes between the Baron’s family after his death.

The Baron’s eldest son, Georg Heinrich, known as Heini Junior, was heavily involved in the establishment of the Bermuda trust and gave up certain rights of his own in the business assets when the trust was established Shortly after establishment of the trust, Heini Junior was appointed Chairman of the supervisory board of the controlling trust entity.

The proceedings

In January 1997, the Baron, together with a trust established for the benefit of his fifth wife, commenced proceedings in the Bermudan courts to set aside the 1983 trust and to claim compensation. The essence of the Baron’s case was based upon allegations that Heini Junior had, by exercising undue influence over the Baron, committing misrepresentations and abusing an alleged fiduciary relationship with the Baron, caused the trust to be established in terms which conflicted with the Baron’s express wishes and that the Baron had not properly understood what he was doing when he established it. These allegations were hotly contested by Heini Junior and the trustees

Following commencement of proceedings, most of the next three years were taken up with interlocutory litigation on discovery and other issues. The trial finally commenced in October 1999 before an English judge appointed on a short term contract by the Bermuda Government. Six months after the start of the trial, in April 2000, the defendants applied to strike out the proceedings. The strike out application was dismissed in June 2000 and the trial commenced again. A further flurry of interlocutory activity stalled the trial again in late 2000. It re-commenced once more in January 2001, but in March of that year it was adjourned again, after more than 100 trial days, when the judge’s appointment came to an end. This led to a further controversy, with the plaintiffs intimating a claim for compensation against the Bermuda government for failing to provide a judge to see the case through to an end.

The settlement

Following the judge’s withdrawal, various possibilities were canvassed, including re-starting the trial before another judge in Bermuda and moving the whole case to London. In the event, however, the parties managed to agree a settlement in February 2002 which left the trust structure essentially intact but with the Baron and his fifth wife’s interests gaining certain additional rights. The Baron passed away shortly afterwards. Legal fees are estimated to have been in excess of HK$1 billion, a figure approaching 5% of the reported value of the assets at stake.

Lessons from Thyssen for those involved in Hong Kong trusts

For those involved in the establishment of trusts, the case reiterates the need to adopt a rigorous approach to ensuring that appropriate structures are set up and that the relevant parties are fully advised, with there being documented evidence as to the understanding of what is being done. The more significant the assets, the more likely it is that huge teams of legal advisers may be deployed years after the event to pore over the materials in order to attack the trust. It is relatively uncommon that the person who chooses to attack it is the settlor himself (as in Thyssen). Perhaps more common are attacks by third parties, such as tax authorities or the settlor’s creditors, estranged spouses or heirs, any of whom may have an interest in showing that the trust was a "sham" and that the trust assets in reality remained within the settlor’s de facto ownership.

Perhaps the most remarkable aspect of the case is the degree to which it was fought through the press. Without casting any aspersions in relation to this specific case, it may be noted that, as a matter of general principle, courting publicity for tactical reasons can be a potentially dangerous tactic in the context of large private trusts, given the potential existence of third parties with an interest in exploiting disputes of this sort. If one party chooses to do so, the other will have a difficult tactical decision to make as to whether to say nothing (thereby leaving the other sides version publicly unchallenged) or whether to respond publicly (thereby risking further publicity).

Another startling feature of the case is the sheer magnitude of the legal fees incurred over a significant period. The case was undoubtedly complex and it is understandable that a huge amount of lawyer time (and hence costs) were incurred in grappling with the complexities. Nevertheless, the combination of adverse publicity, huge costs, family hostility and the usual stresses of litigation must make all the interested parties regretful that it was not possible to conclude a settlement at a much earlier stage.

The Baron’s public statement in February 2002 is revealing in this regard: "The family very much regrets that misunderstandings have led to legal proceedings, which are all dismissed or withdrawn, and also that the family, its members and professionals who have worked with the family, were subjected to adverse media coverage connected with such misunderstandings."

A contrast – the Noboa case

If family disputes of this sort can be settled on rational terms, ideally relatively quickly and inexpensively, then of course that is desirable in principle. Nevertheless, it is sometimes unfortunately necessary to litigate such matters robustly to their conclusion. An illustration of a successful robust approach being taken by defendants is the recently decided Noboa case. On 7 November 2002, the English High Court dismissed a challenge to a very substantial family business structure following a trial which included extensive cross-examination. The judge came down firmly in favour of upholding the structure and characterised the challengers’ case as "contrived and untruthful." The judgment is publicly available and may serve as a cautionary tale for those who might be tempted to advance challenges of this sort without any responsible factual and legal basis1. But perhaps that would be unduly optimistic.

1. De Molestina and others v Ponton and others [2002] EWHC 2413 (Comm.)

Just How Nominal Is The Office Of Nominee?

The recent decision of the Hong Kong Court of Appeal in Hotung v Ho Yuen Ki (unreported, 7 November 2002) arises from another family trust dispute, raising a short but fundamental trust law issue.

The facts

In 1979 and 1980, Madam Ho executed declarations of trust in respect of company shares in favour of certain younger relatives who, at the time of the declarations, were minors. She thereby became a bare trustee or nominee, that is, she held the legal title to the shares but in equity they belonged wholly to the beneficiaries.

Many years later, having come of age, the Beneficiaries1 wished to continue their status as beneficiaries (as opposed to legal owners) whilst at the same time obtaining practical control of the shares. They therefore requested Madam Ho to execute powers of attorney giving them full power to deal with the shares.

Madam Ho refused to execute the powers of attorney and the beneficiaries brought proceedings to compel her to do so.

The law

One of the fundamental principles of equity, known as the rule in Saunders v Vautier2 after the leading nineteenth century English case, is that a beneficiary under a bare trust who is sui juris (i.e. of full age and capacity) has the right to demand his or her trustee to transfer legal title to the trust property to him or her, or at his or her direction.

The underlying issue in this case was, in effect, whether the long-established rule in Saunders v Vautier was just one aspect of a larger principle whereby sui juris beneficiaries under a bare trust are entitled to control the trust generally, including (as in this case) requiring the trustee to execute a power of attorney.

To support the alleged broader principle, the plaintiff relied on a line of English, Canadian and US cases establishing that a beneficiary may direct a nominee how to vote shares.

The decision

The Court of Appeal decided unanimously that the plaintiffs’ claim failed because:

"On first principles, if a party wishes his legal relationship with another to be governed by a trust, then he should observe that relationship and not insist that he is still entitled to perform the role of trustee himself. If he wishes to do so, then the proper way is to terminate the trust and do whatever he likes with the property. What he can not do is to say to the trustee that since you have to obey my instructions on voting you may as well let me do the job for you. To us this is the answer to the plaintiffs’ claim. What the beneficiaries want here is to have all the rights of legal and beneficial ownership of the shares without assuming the burden of the ownership. We are not satisfied that they are entitled to do so.

Further…. [Madam Ho] is being asked to delegate her office as trustee. The court should not force an agency on an unwilling party. Why should an unwilling party be ordered to grant a power of attorney even if the agent is prepared to and will provide an indemnity. By granting the power of attorney, the trustee is exposed to claims by third parties."

In short, the beneficiary must elect between exercising his right to demand a transfer under the rule in Saunders v Vautier or else leave the trustee to manage the trust.

The line of cases concerning voting rights is therefore to be understood as being "in a class of its own" (in the Court of Appeal’s words) and not supportive of the wider proposition advanced by the plaintiffs.

Analysis

What remains to be addressed in future cases is whether a bare trustee must comply with specific directions from his beneficiary which fall short of a general delegation of powers and are arguably closer to the accepted case of directions as to the exercise of voting rights.

In one line of cases considered in Hotung, the English courts have held (or at least expressed the opinion in non-binding terms) that a trustee could not be required to execute a lease. The trustees in those cases were not bare trustees but the Hong KongCourt of Appeal in Hotung appeared unimpressed by that distinction.

One possible basis of distinction between the two categories of cases may be to ask whether the particular act demanded by the beneficiary potentially exposes the trustee to liability, whether to other beneficiaries or to third parties. If so, then it is arguably wrong in principle to require the trustee to comply. If not, then arguably the beneficiary’s wishes should always prevail. Time will tell whether this is the approach ultimately adopted by the courts.

1 In fact, only two of the three beneficiaries brought the proceedings, which raised a further complication in view of the undivided nature of the shares. However, the claim failed on other grounds so the Court of Appeal did not have to address this complication and accordingly declined to do so.

2 (1841) 4 Beav 115, [1835–42] All ER Rep 58, 49 ER 282.

Accessory Liability In Breach Of Trust Cases

It is well established that a person who assists another to commit a breach of trust in respect of that property, may himself be held liable to the beneficiary even though he did not himself hold the property in question. However, in contrast to the position of persons who actually hold and dispose of property (who are required to observe an objective standard of prudence), "assisters" are only held liable if proved to have acted with a significantly more culpable state of mind. Whilst that much is clear, the precise degree of culpability required has proved problematic. The House of Lords has to some extent clarified the English law test in March 2002, albeit with a powerful dissenting opinion by Lord Millett. However, the applicability of that decision in Hong Kong has already been questioned in a first instance Hong Kong judgment of May 2002, in which the Court of First Instance considered itself obliged to follow the majority House of Lords view yet appeared to prefer Lord Millett’s dissent. It remains to be seen how the Hong Kong appellate courts will finally resolve the matter

The facts

In Twinsectra Ltd v Yardley1 , a borrower, Yardley, instructed two solicitors at different firms in connection with aspects of a single loan transaction: one of the solicitors, Sims, dealt directly with the lender; the other solicitor, Leach, did not. The lender paid the loan moneys into Sims’ client account upon Sims’ undertaking to the lender that the moneys would not be released to Yardley other than by way of application to property to be purchased by Yardley. Sims nevertheless agreed to release the money to Yardley in breach of his undertaking to the lender, on the basis of an assurance from Yardley to Sims that the money would in fact be used to purchase property. Yardley directed Leach to receive the money on Yardley’s behalf from Sims. Leach did so and subsequently paid the money out to Yardley. The lender sued Yardley, Sims and Leach. For present purposes, we are only concerned with the lender’s case against Leach. That case was based upon the theory that Leach had dishonestly assisted Yardley and Sims to commit a breach of trust in respect of the moneys held by Sims on trust for the lender2

The judicial decisions in respect of Leach

Leach was held not liable at trial on two grounds: first, that Sims did not hold the money on trust for the lender, and secondly, that Leach was not dishonest.

The Court of Appeal allowed an appeal on both grounds, holding that Sims had held the money on trust and that Leach had been dishonest. Leach was therefore held liable. The House of Lords unanimously dismissed Leach’s appeal on the first ground but (Lord Millett dissenting) allowed it on the second ground, finding that Leach had not been dishonest and taking the opportunity to restate the test for dishonesty in this context.

The law

Prior to the decision of the Privy Council sitting in a Malaysian appeal in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, there was a debate as to the level of culpability required for an "assister" to be held liable. One argument was that liability should be based on positive objective standards of reasonableness (e.g. negligence/constructive knowledge). However, in the Royal Brunei Airlines case, the Privy Council held that intentional wrongdoing was an essential ingredient of such liability.

The Royal Brunei Airlines decision has been followed in subsequent English and Hong Kong cases. However, the precise level of culpability required by the decision has been the subject of differing judicial opinions.

The House of Lords has now decided by a majority that assisters’ liability under English law requires dishonesty, and that the applicable test of dishonesty is a "combined" (or mixed subjective/objective) one.

The objective element is that the plaintiff must establish that the defendant’s conduct was dishonest by the ordinary standards of a reasonable and honest person. The subjective element is that the plaintiff must establish that the defendant realised his conduct was dishonest by the ordinary standards of a reasonable and honest person3

A purely subjective test has consistently been rejected by the courts as it is considered inappropriate, for obvious reasons, to make legal responsibility turn upon the professed private moral standards of a particular accused individual.

However, a more objective test than that favoured by the majority of the House of Lords has some substantial supporters. In particular, Lord Millett in Twinsectra expressed the dissenting opinion that it should be sufficient for liability that the assister’s conduct is dishonest by the ordinary standards of a reasonable and honest person, and that the assister knew the relevant facts which objectively rendered it dishonest by those standards. Lord Millett would not also have required proof that the assister knew his conduct to be dishonest by ordinary standards.

The decision on the facts in Twinsectra

It was established that Leach knew all the relevant facts which, it was held, rendered his conduct dishonest by the ordinary standards of a reasonable and honest person. However, the House of Lords held that it was not established that Leach knew he was acting dishonestly by those standards. In the words of Lord Hoffmann:

"… he took a blinkered approach to his professional duties as a solicitor, or buried his head in the sand (to invoke two different animal images). But neither of those would be dishonest.

Mr Leach believed that the money was at the disposal of Mr Yardley. He thought that whether Mr Yardley’s use of the money would be contrary to the assurance he had given Mr Sims or put Mr Sims in breach of his undertaking was a matter between these two gentlemen. Such a state of mind may have been wrong. It may have been, as the judge said, misguided. But if he honestly believed, as the judge found, that the money was at Mr Yardley’s disposal, he was not dishonest.

I do not suggest that one person cannot be dishonest without a full appreciation of the legal analysis of the transaction. A person may dishonestly assist in the commission of a breach of trust without any idea of what a trust means. The necessary dishonest state of mind may be found to exist simply on the fact that he knew perfectly well that he was helping to pay away money to which the recipient was not entitled. But that was not the case here."

Lord Millett, dissenting, noted that the effect of the dishonesty test adopted by the majority creates a technical distinction between liability of this sort and liability for the tort of wrongful interference with performance of contractual obligations (which turns on knowledge, not dishonesty):

"In my opinion, [Mr Leach’s knowledge of the facts] is enough to make Mr Leach civilly liable as an accessory for (i) the tort of wrongful interference with the performance of Mr Sims’ contractual obligations if this had been pleaded and the undertaking was contractual as well as fiduciary; and (ii) for assisting in a breach of trust. It is unnecessary to consider whether Mr Leach realised that honest people would regard his conduct as dishonest. His knowledge that he was assisting Mr Sims to default in his undertaking to Twinsectra is sufficient."

Analysis

It is submitted that at least two major uncertainties remain in this area of Hong Kong law after Twinsectra:

The first major uncertainty is whether the Hong Kong courts will follow Twinsectra. Although post-1997 House of Lords’ decisions still have a very high level of persuasiveness in Hong Kong, they are not binding. In PBM (Hong Kong) Ltd v Tang Kam Lun (unreported, 24 May 2002), Deputy Judge Lam only followed Twinsectra in rather lukewarm terms, characterising Lord Millett’s dissenting reasoning as "cogent" and apparently applying the combined test only because "as a first instance judge, it would not be appropriate for me to adopt the view of Lord Millett when the point has not been fully argued before me." The case is subject to appeal.

The second major uncertainty is how to distinguish between dishonest and honest (or, at least, "not dishonest") states of mind in practice. The reader may care to reflect upon the practical issues raised by the subtle distinctions made in the following examples (all of which appear to be good law following Twinsectra), bearing in mind that there may be a regrettable tendency by certain defendants in this area to tailor their evidence with an eye to the applicable legal standards.

"Dishonest"

"Deliberately clos[ing] his eyes and ears, or deliberately not ask[ing] questions, lest he learn something he would rather not know, and then proceed[ing] regardless." (Lord Nicholls in Royal Brunei, quoted with approval by Lord Hoffmann in Twinsectra).

"[D]eliberate abstinence from inquiry in order to avoid certain knowledge of what one suspects to be the case." (Lord Hoffmann in Twinsectra).

"[Someone who] knew perfectly well that he was helping to pay away money to which the recipient was not entitled." (Lord Hoffmann in Twinsectra).

"Perhaps dishonest"

" Prima facie, shutting one’s eyes to problems or implications and not following them up may well indicate dishonesty…" (Lord Slynn in Twinsectra).

"Not dishonest"

"[Taking] a blinkered approach to [one’s] professional duties as a solicitor, or bur[ying one’s] head in the sand (to invoke two different animal images)." (Lord Hoffmann in Twinsectra).

"The line between guilt and innocence in this region of activity… is a fine one: it runs between suspecting what was going on (and I have no difficulty in agreeing that [the defendant], who is no fool, must have suspected it) and either knowing or shutting one’s eyes to it." (Lord Justice Sedley in Heinl v Jyske Bank [1999] Ll. Rep. 511, holding that the defendant in question was not liable).

1 [2002] 2 AII ER 377.

2 Given the sometimes fine distinctions which pervade this area of law, it is worth stating that the reason for the claim against Leach being framed as one of "assistance" not "receipt" is that liability for receipt (for which only constructive knowledge of a breach of trust by the recipient need be proved, as opposed to dishonesty) requires the recipient to have received moneys purportedly for his own benefit rather than as agent (e.g. solicitor) holding moneys for another.

3 The same combined approach has been established for approximately 20 years as the test for dishonesty in the criminal law of theft: Regina v Ghosh [1982] QB 1053.

Avoiding The Bar On Reflective Loss Claims By Recourse To Trust Law

In Prudential Assurance Co Ltd v Newman Industries Ltd (No. 2)1 the English Court of Appeal laid down a general bar upon shareholders suing in respect of loss suffered by them in their capacity as shareholders if the company also has a cause of action against the same defendant in respect of the loss in question. After much litigation exploring the various exceptions to this general rule, the House of Lords has recently affirmed and further explained the rule in Johnson v Gore Wood & Co.2 In a judgment delivered on 18 October 2002, the English Court of Appeal has declined to apply the general rule to a case involving an alleged trust: Shaker v Al-Bedrawi3 It is considered likely that these issues will arise in Hong Kong before long.

The assumed facts

The appeal largely proceeded on the basis of assumed facts as the relevant issue arose prior to trial.

Simplifying somewhat, Shaker, the claimant, alleged that he was beneficially entitled to X% of shares in a Pennsylvanian company (alternatively, to X% of the company’s business), held on trust for him by the company’s sole director, Bedrawi and that Bedrawi was liable to account to him for X% of all profits which Bedrawi was enabled to make by use of those shares, including X% of the secret profit which Bedrawi is alleged to have made when the company sold certain assets to a third party. Shaker alleged that Bedrawi had subsequently taken the money out of the company.

The decision at first instance

At first instance, Shaker rested his case essentially on the basis that he had a direct interest in the company’s business and that the reflective loss rule therefore had no application. The judge rejected the contention that Shaker’s interest was in the business and concluded that, even making assumptions in Shaker’s favour, his interest would only have been in the company.

The judge then proceeded to analyse the case on the basis of his finding that Shaker’s interest could only have been in the company, and concluded that:

(i) The company was to be assumed to have a cause of action against Bedrawi because, in the absence of expert evidence as to Pennsylvanian law, it was to be assumed (in accordance with the usual conflict of laws rule) that English company law applied. Under English company law, Bedrawi’s taking of the money from the company would have been an unlawful distribution rendering Bedrawi personally liable, as director, to the company.

(ii) As the company was therefore assumed to have a cause of action against Bedrawi, it followed that Shaker’s action must fail under the reflective loss rule.

The decision on appeal

On appeal, Shaker’s case was put very differently: the argument that he had an interest in the underlying business was abandoned, and an application to adduce new evidence on Pennsylvanian company law was made, for the purpose of demonstrating that the Pennsylvanian rule was different from the English rule. It was argued on this basis that the reflective loss rule did not bar Shaker’s action.

The Court of Appeal allowed the appeal on the grounds that:

(i) Although the application to adduce new evidence would be refused, the judge was wrong to proceed on the assumption that English company law applied. The general conflict of laws assumption to the effect that English law applies in the absence of foreign law being pleaded and proved should not have been applied at this interlocutory hearing.

(ii) On that basis, it should not have been concluded that the company did not have a cause of action against Bedrawi.

(iii) The company therefore did not necessarily lack a claim against Bedrawi.

(iv) Shaker’s trust claim was not necessarily bad because, in the words of the Court:

"In our judgment the Prudential principle does not preclude an action brought by a claimant not as shareholder but as a beneficiary under a trust against his trustee for a profit unless it can be shown by the defendants that the whole of the claimed profit reflects what the company has lost and which it has a cause of action to recover. As the Prudential principle is an exclusionary rule denying a claimant what otherwise would be his right to sue, the onus must be on the defendants to establish its applicability. Further, it would not be right to bar the claimant’s action unless the defendants can establish not merely that the company has a claim to recover a loss reflected by the profit, but that such claim is available on the facts. If in the present case it could be shown that the $6 million was misappropriated from [the company] of unlawfully distributed so that [the company] was entitled to the whole of the $6 million, we would accept that the Prudential principle applied to bar Mr Shaker’s action.

However, for the reasons already given, that has not been, and cannot without a trial be, shown. It is possible that at least part of the $6 million was lawfully taken by Mr Bedrawi…

We confess that we are the happier to reach this conclusion in view of the improbability that [the company] would now bring an action against Mr Bedrawi when it has not done so for over eight years since the ayment of the $6 million to [a third party]. In circumstances where the Prudential principles applies to bar a viable claim on the footing of the company’s cause of action which it does not assert, the application of the principle can work hardship. Moreover in this case the application of the principle might serve to leave the trustee holding a profit without being accountable for it to his beneficiary, and that may run counter to a basic equitable principle."

(v) The whole matter could only be properly resolved at trial.

Analysis

Matters such as this are extremely fact sensitive, but the case does illustrate that, notwithstanding the decision in Johnson v Gore Wood & Co., there is still significant scope for actions by aggrieved persons having an interest in shares notwithstanding the possibility of overlap with a possible claim by the company. Given the prevalence of informal business relationships in Hong Kong, it may be considered likely that this sort of issue will increasingly arise in the Hong Kong courts.

1 [1982] Ch 204.

2 [2002] 2 AC 1.

3 [2002] 4 All ER 835.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions