United States: Adjudication Of FERC Enforcement Cases: "See You In Court?"

Last Updated: November 25 2015
Article by Todd Mullins and Christopher D. McEachran


Recent articles in this publication have reviewed the current FERC enforcement process and its roots in the Energy Policy Act 2005 (EPAct 2005).1 By way of brief background, as prior commentators have established, since almost its inception the Federal Power Commission and then its successor the FERC, have held "enforcement powers."2 However, in the wake of what came to be known as the "California Energy Crises" and the "August 2003 Blackout" in the Northeastern United States, Congress passed the EPAct 2005 that handed the FERC sweeping new powers—both substantive and remedial.3 EPAct 2005 amended Part II of the Federal Power Act (FPA), the Natural Gas Act (NGA), and the Natural Gas Policy Act (NGPA), and gave the Commission the authority to assess civil penalties of up to $1 million per day per violation, for violations of rules, regulations, and orders issued under these statutes.4

The Commission and its Staff began to flex these new enforcement muscles almost immediately, most notably with the initiation of the Energy Transfer Partners, L.P., and Amaranth Advisors L.L.C. proceedings.5 In these and other early cases, the FERC attempted (and in some cases succeeded) to use its newly granted penalty authority as leverage to obtain sizeable settlements for allegations of market manipulation as well as a large suite of settlements over the natural gas "shipper-must-have-title" rules.6 But, some of these cases were adjudicated. What followed was almost a decade of developments in cases and policy pronouncements that sometimes addressed perceived inadequacies or flaws in the enforcement process.7 The Commission instituted rules and policies that responded to some criticisms about the transparency and fairness of the process.8 But strong criticisms remain, particularly in the areas of discovery and disclosure of material, staff access to the Commission during an investigation, and the length and cost of the investigatory and adjudicative processes. Many of these criticisms were featured in the Scherman et al article, which asserts that there was a "wide spread perception" that the process has become "lop-sided and unfair."9 Some of the criticism and answers played themselves out recently on the very public stage of the hearing over the confirmation of now Chairman of the FERC, Norman C. Bay. Senators peppered the nominee with questions about the enforcement process. Bay staunchly defended the current process as being within the bounds of agency authority and established government processes, in some cases asserting that the Commission affords subjects of investigations more process than many other agencies do.10 Notably, he was confirmed by the Senate despite these questions being raised. Then, in a direct response to the Scherman et al article, FERC staff penned an article in this journal rebutting some of the criticisms and claiming that "proposed reforms are unnecessary."11 More recently, draft legislation addressing some FERC investigatory process matters floated in Congressional committees, but as of this writing do not seem poised for passage.12

We submit that each side in this debate is making some valid points and yet each side is exaggerating or minimizing the problems, respectively. More importantly, the specifics upon which these commentators focus are just symptoms of a larger condition; while the REAL problem is not really being addressed. We submit that the REAL problem is having the Commission, rather than a federal court, adjudicate these cases that do not settle before the "Order to Show Cause" (OSC) stage (described further infra, section II, A).


As we discuss below, what happens in the investigative process largely matters because of what follows: the settlement or adjudication of a case. Prior commentators have well-summarized, and largely focused on, the details of the FERC enforcement investigative process.13 What have garnered less attention are the varying adjudicative processes. To really understand what may or may not be broken in the current investigative system, we must begin at the end: adjudication.

As currently practiced by the Commission, FERC civil penalty enforcement "adjudication" or "litigation" paths—what happens when cases do not settle—are different under the FPA, the NGPA, and NGA.14 The FPA outlines two different possible processes by which the Commission can "assess" penalties for Part II violations. The NGPA provides for a de novo review process in federal court. The NGA contains no provisions specifying the process for meting out penalties under that statute. In short, the various statutory schemes are a hodgepodge. In 2006, the FERC issued a policy statement addressing the processes the Commission will use when assessing civil penalties under all its governing statutes.15 That policy statement added some gloss to the statutes. And since then, the Commission has, by pronouncement or practice, shaped these courses a bit more (and courts in litigated or reviewed cases may do so as well, though these cases are just starting to wend their way through the courts, even ten years out from EPAct 2005). In light of those sources, we attempt to summarize below the processes as currently practiced.

A. The Order to Show Cause

As currently practiced, the common jumping off point for any civil penalty adjudication under any of the Commission's statutes is what is generally referred to as the "Order to Show Cause and Notice of Proposed Penalty" (OSC).16 In all cases, if an enforcement matter does not settle and staff succeeds in convincing the Commission to pursue enforcement (as it invariably does, more about which anon), before issuing an order assessing a civil penalty the Commission will issue an OSC.17 In the first post-EPAct 2005 OSCs, the order contained a full recitation of the preliminary determinations of the Commission.18 More recently, the OSC attaches a "Staff Report" which is supposed to contain a statement of the material facts constituting, as well as the legal basis for, the violation.19  Interestingly, though no response is expressly contemplated by statute, the Commission routinely directs respondents to present "any legal or factual arguments that could justify not issuing the assessment or a reduction or modification of the proposed penalty."20 In practice, the Commission also provides for the staff to file a reply to the respondents' arguments.21 There is some debate about whether this phase of the process constitutes "adjudication" or merely a continuation of the investigative process (because, for example and most notably, the FERC claims that it can continue investigating while the OSC process is ongoing—and it has done so in several cases).22 Regardless, the process from the OSC forward is where the paths for (or to) adjudication start to diverge depending on which statute is involved.

B. The FPA Adjudicative Process

In an FPA case, the OSC will direct the respondent to respond on the merits and will also observe that the respondent has the option to choose between either (a) an administrative hearing before an Administrative Law Judge (ALJ) at the Commission prior to the finalization of the penalty under section 31(d)(2), or (b) an immediate penalty assessment under section 31(d)(3) followed by a district court "de novo review" adjudication.23 The process is supposed to work like this:

1. The "ALJ Route"

If the person elects an administrative hearing before an ALJ at the Commission, the Commission will issue a hearing order (unless it determines, and it has done so in one case, that there are not material issues of fact that require a trial).24 The ALJ will conduct a hearing under Part 385 of the Commission's regulations.25 Staff from the Office of Enforcement serves as trial Staff at the hearing. The Section 385 rules provide for rights of discovery—and in actual practice, Respondents sometimes do obtain discovery from the FERC Staff as well as third parties.26 Discovery is available to both sides, but not as of right, except among the parties. Participants must apply to the ALJ for the issuance of discovery and trial subpoenas to third parties.27 The hearing itself is a hybrid of paper, electronic, and live procedures.28 Pre-filed testimony of party-sponsored witnesses is typical with cross-examination live on the stand. The Federal Rules of Evidence do not apply to the hearing, though (in our experience) as a practical matter the ALJ's seem to apply evidentiary standards that are about what one might expect in a bench trial in a federal district court.29 Sometimes, ALJ's will permit opening statements, while closing arguments are almost unheard of. Parties file post-hearing briefs with proposed findings of fact and conclusions of law.

The ALJ will issue an "Initial Decision" and determine whether a violation or violations occurred.30 If a violation is found, the Initial Decision will recommend any appropriate penalty, taking into account factors described in various Commission Policy Statements on Enforcement. The hearing record is  supposed to have developed the facts necessary to any such determination. The ALJ decision is not itself effective upon issuance. There is an automatic appeal process, and the decision-maker here is not a court, but the Commission.31 The Commission will consider the Initial Decision of the ALJ and any "exceptions" filed with the Commission by trial Staff or the respondent. The Commission treats the ALJ's decision "as part of the record" and does not treat the ALJ's Initial Decision with "any special deference" as to questions of law.32 However, if the ALJ—as the trier of fact—has made a determination on the credibility of a witness, such determination would be entitled to "some deference."33 If the Commission determines that there is a violation, the Commission will issue an order and may assess any appropriate penalty, taking into account all relevant factors.34 

If a violation is found, a respondent may request a rehearing no later than thirty days after the issuance of the order assessing the penalty.35 If that rehearing request is denied, the respondent can seek a review of the case in a Court of Appeals.36 Alternatively, a respondent may appeal an order assessing penalty directly to the Court of Appeals without first seeking rehearing.37 The Court of Appeals reviews the Commission's findings of fact under the "substantial evidence standard."38 This deferential standard "requires more than a scintilla, but can be satisfied by something less than a preponderance of the evidence."39 Findings of law are reviewed under the arbitrary and capricious standard.40 This process can take several years.

2. The "De Novo Review Route"

If a respondent to an OSC in an FPA case elects an immediate penalty assessment by the Commission, the Commission is supposed to do just that—"promptly assess such penalty."41 Even though the statute does not require or even authorize the Commission to make a "determination of a violation" as with the ALJ path, in practice, the Commission has used the OSC process in such cases to analyze the facts and law, including the competing positions of staff and the Respondent.42 The Commission issues (usually a rather lengthy) order setting forth the material facts that constitute the violation, its view of the law supporting such violations, and assessing what it views as the appropriate penalty. This process typically takes at least six months from the issuance of the OSC. Revealing a rare crack in the foundation, one Commissioner recently dissented to some aspects of this process, noting in the face of these sometimes lengthy proceedings, that "there can be no disagreement that a prompt assessment is an assessment of an immediate nature."43

If the assessed penalty is not paid within sixty days, the Commission may commence an action in a United States district court seeking enforcement of the order.44 In such a case, FPA section 31(d)(3)(B) authorizes the court to review "de novo the law and facts involved."45 The district court can "enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in [p]art . . ." the Commission's penalty assessment.46

There has never been an FPA de novo review case that has proceeded past an initial pleading stage. So the precise meaning of de novo review under the FPA has yet to be defined by a Court. The best available test case thus far is FERC v. MacDonald, wherein the court held that:

Section 31 of the Federal Power Act, 16 U.S.C. § 823b(d)(3)(B) specifies that when FERC brings an action in district court to enforce a civil penalty assessment, the court must make a de novo review of the assessment. Accordingly, I will give no deference to FERC's decision. Instead, I will make "a fresh, independent determination of 'the matter' at stake."47

However, the case settled shortly after this preliminary pronouncement. So we do not really know how the courts will conduct the de novo review.

The FERC recently filed several enforcement actions in federal district court under the FPA for alleged market manipulation in electricity markets.48 The cases are FERC's first post-EPAct 2005 enforcement cases filed in district court under the FPA. The defendants in these cases claim that the full array of federal trial court procedures should apply, including the right to discovery, pretrial motions, the application of the Federal Rules of Evidence, and a hearing, including the right to a jury trial.49 The FERC, on the other hand has been a bit more open-ended in its position. It has demanded a jury trial in these cases while at the same time claiming that the courts can and should affirm the penalty assessment summarily based on the record developed solely at the agency.

By whatever means the district court gets there, the Commission and the respondent can appeal the court's final order to a United States Court of Appeals. The Court of Appeals will then make certain that the District Court applied the correct legal standards, before reviewing the District Court's findings of fact and application of the law.50 The Court of Appeals will review factual findings for clear error and will review questions of law de novo.51 We do not really know how long these de novo review processes will take. But it is instructive that both the Barclays and Lincoln cases have been in federal court for nearly two years and counting, though most commentators agree that the length of the proceedings to date likely has to do somewhat with this very debate over de novo review.

To summarize this discussion, we offer the following charts to illustrate the FPA adjudicative processes and which appear as appendices to the 2006 Statement of Administrative Policy Regarding the Process of Assessing Civil Penalties, Docket No. AD07-4-000 (Dec. 21, 2006).

To continue reading this article, please click here.


1. William S. Scherman, Brandon C. Johnson, & Jason J. Fleischer, The FERC Enforcement Process: Time for Structural Due Process and Substantive Reforms, 35 ENERGY L.J. 101 (2014); Allison Murphy, Todd Hettenbach, & Thomas Olson, The FERC Enforcement Process, 35 ENERGY L.J. 283 (2014).

2. Murphy et al., supra note 1, at 285-86.

3. Id. at 288-89.

4. Id.

5. Order to Show Cause, Energy Transfer Partners, L.P., 120 F.E.R.C. ¶ 61,086 (2007); Order to Show Cause, Amaranth Advisors L.L.C., 120 F.E.R.C. ¶ 61,085 (2007).

6. See, e.g., Order Approving Stipulation and Consent Agreement, In re Bangor Gas Co., LLC, 118 F.E.R.C. ¶ 61,186 (2007).

7. Murphy et al., supra note 1, at 290-91.

8. Revised Policy Statement on Enforcement, Enforcement of Statutes, Regulations, and Order, 123 F.E.R.C. ¶ 61,156 (2008); Policy Statement on Compliance, Compliance with Statutes, Regulations, and Orders, 125 F.E.R.C. ¶ 61,058 (2008); Revised Policy Statement on Penalty Guidelines, Enforcement of Statutes, Orders, Rules, and Regulations, 132 F.E.R.C. ¶ 61,216 (2010); Interpretive Order Regarding No-Action Letter Process, Informal Staff Advice on Regulatory Requirements, 113 F.E.R.C. ¶ 61,174 (2005); Interpretive Order Modifying No-Action Letter Process, Informal Staff Advice on Regulatory Requirements, 117 F.E.R.C. ¶ 61,069 (2006).

9. Scherman et al., supra note 1, at 102.

10. Lafleur and Bay Nominations: Hearing Before the Committee on Energy and Natural Resources, 113th Cong. 15 (2014) (testimony of Norman C. Bay, Nominee, Fed. Energy Reg. Comm'n), https://www.congress.gov/113/chrg/shrg88084/CHRG-113shrg88084.pdf [hereinafter Lafleur and Bay Hearing].

11. Id. at 28; Murphy et al., supra note 1, at 283.

12. Title IV—Energy Efficiency and Accountability, Subtitle B, Chapter 1—Market Manipulation, Enforcement and Compliance, Sec. 4212 (Discussion Draft May 20, 2015), available at http://docs.house.gov/meetings/IF/IF03/20150603/103551/BILLS-114pih-SubtitleB-Accountability.pdf.

13. Murphy et al., supra note 1, at 291-97; Scherman et al., supra note 1, at 108-11.

14. We put some of these terms in quotes because they may be terms of art in certain contexts, such as under the Administrative Procedure Act (APA). Moreover, in some current cases, parties, including the authors, are litigating the meaning of such terms. We do not intend here to ascribe any particular statutory meaning to the term "adjudication" but use it here as a general rubric. Moreover, nothing in this article is meant to present, modify, or characterize any legal position taken by any litigant. This is an academic and (we hope) scholarly presentation.

15. Statement of Administrative Policy, Process for Assessing Civil Penalties, 117 F.E.R.C. ¶ 61,317 (2006).

16. Revised Policy Statement on Enforcement, Enforcement of Statutes, Regulations, and Orders, 123 F.E.R.C. ¶ 61,156 at P 35 (2008).

17. Id.

18. Order to Show Cause, Energy Transfer Partners, L.P., 120 F.E.R.C. ¶ 61,086 at PP 4-22 (2007); Amaranth Advisors L.L.C., 120 F.E.R.C. ¶ 61,085 at P 5 (2007).

19. See, e.g., Order to Show Cause, Houlian Chen, Powhatan Energy Fund, LLC, HEEP Fund, LLC, CU Fund, Inc., 149 F.E.R.C. ¶ 61,261 at P 2 (2014).

20. Process for NGPA Penalty Assessment, FERC, http://www.ferc.gov/resources/processes/enforcement/ngpa-text.asp.

21. 120 F.E.R.C. ¶ 61,085 at P 1.

22. See, e.g., Order Assessing Civil Penalties, Barclays Bank PLC, Daniel Brin, Scott Connelly, Karen Levine, and Ryan Smith, 144 F.E.R.C. ¶ 61,041 at P 22 (2013).

23. This section of the article describes the process used to assess penalties under "Part II" of the FPA to   which the enhanced penalty authority of the Commission applies. Lesser penalties are available under "Part I" of the FPA. FPA section 31(a) grants the Commission the authority to monitor and investigate compliance with licenses, permits, and exemptions for hydropower projects issued under Part I. It allows the assessment of penalties but this authority is rarely used. In any event, the process for adjudicating penalty cases under Part I is virtually identical to that under Part II.

24. See, e.g., Order on Show Cause Response, Moussa I, Kourouma d/b/a Quntum Energy LLC, 135 F.E.R.C. ¶ 61,245 at PP 9-10 (2011).

25. 18 C.F.R. §§ 385.101-.2202 (2013).

26. §§ 385.401-.411.

27. § 385.409(a).

28. §§ 385.501-.510.

29. Opinion No. 523, Entergy Servs., Inc., 142 F.E.R.C. ¶ 61,022 at P 55 (2013) (citing Midwest Indep. Transmission Sys. Operator, Inc., 131 F.E.R.C. ¶ 61,173 PP 97-98 (2010), reh'g denied, 136 F.E.R.C. ¶ 61,244 (2011)). Although, we note that most practitioners suspect that even federal judges apply the rules of evidence less rigorously in bench trials because they are not performing a "gate keeping function" to prevent jurors from being exposed to objectionable evidence.

30. 18 C.F.R. § 385.708(b) (2013).

31. §§ 385.711-.712.

32. La. Pub. Serv. Comm'n v. FERC, 522 F.3d 378, 395 (D.C. Cir. 2008) (citing Greater Boston Television Corp. v. FCC, 444 F.2d 841, 853 (D.C. Cir. 1970)). Administrative law judges' findings "are not entitled to any special deference," but instead "are treated as 'part of the record,'" such that "'in the last analysis, it is the agency's function, not the [administrative law judge's], to make the findings of fact and select the ultimate decision, and where there is substantial evidence supporting each result it is the agency's choice that governs.'"). Id.

33. Pennzoil Co. v. FERC, 789 F.2d 1128, 1135 (5th Cir. 1986) (citing Ward v. NLRB, 462 F.2d 8, 12 (5th Cir. 1972)).

34. 18 C.F.R. § 385.703 (2013).

35. § 385.713.

36. 16 U.S.C. § 825l(b) (2011); See, e.g., Hunter v. FERC, 711 F.3d 155, (D.C. Cir. 2013). See also Walker Operating Corp. v. FERC, 874 F.2d 1320 (10th Cir. 1989).

37. 16 U.S.C. § 823b(d)(2)(B) (2011); See, e.g., Bluestone Energy Design, Inc. v. FERC, 74 F.3d 1288, 1293 (D.C. Cir. 1996) (observing that § 823b(d)(2)(B) "does not require a party challenging a penalty to seek rehearing; a party against whom the Commission assesses a penalty may appeal directly to an appropriate court within sixty days").

38. 16 U.S.C. § 825l(b); See also La. Pub. Serv. Comm'n, 522 F.3d at 391.

39. FPL Energy Main Hydro LLC v. FERC, F.3d 1151, 1160 (D.C. Cir. 2002).

40. 5 U.S.C. § 706(2)(A) (2011).

41. 16 U.S.C. § 823b(d)(3)(A) (2011).

42. See generally Order Assessing Civil Penalties, Houlian Chen, Powhatan Energy Fund, LLC, HEEP Fund, LLC, CU Fund, Inc., 151 F.E.R.C. ¶ 61,179 at PP 33, 37 (2015) (finding violations in Order Assessing Penalties where respondents had elected immediate penalty assessment).

43. Barclays Bank PLC, 143 F.E.R.C. ¶ 61,024 (2013) (LaFleur, Comm'r, dissenting).

44. 16 U.S.C. § 823b(d)(3)(B) (2011).

45. Id.

46. Id.

47. FERC v. MacDonald, 862 F. Supp. 667, 672 (D.N.H. 1994) (citing Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987) (emphasis added); § 823b(d)(3)(B)).

48. See, e.g., FERC v. City Power Marketing, LLC, Case No. 1:15-cv-01428-JDB (D.D.C. Sep. 1, 2015); FERC v. Powhatan Energy Fund, LLC, Case No. 3:15-cv-0452 (E.D.Va. Jul. 31, 2015); FERC v. Maxim Power Corp., Case No. 3:15-cv-30113 (D. Mass Jul. 1, 2015); FERC v. Barclays Bank PLC, No. 2:13-cv-02093, (E.D. Ca. Oct. 9, 2013), FERC v. Lincoln Paper & Tissue, LLC, No. 1:13-cv-13056 (D. Mass. Dec. 2, 2013).

49. Joint Report in Compliance with Fed. R. Civ. P. 26(f) and Court's Order Requiring Joint Status Report, FERC v. Barclays Bank, No. 2:13-cv-02093-TLN-DAD, 2013 WL 7045794 (E.D. Ca. Dec. 16, 2013); Lincoln Paper & Tissue, LLC's Memorandum of Law Concerning the Contours of the Trial, FERC v. Lincoln Paper & Tissue, LLC, No. 1:13-cv-13056-DPW, 2014 WL 7148814 (D. Mass. May 9, 2014).

50. Cuddy v. Carmen, 762 F.2d 119, 123 (D.C. Cir. 1985) (citing Fed. R. Civ. P. 52(a)).

51. Id.

Previously published by The Energy Bar Association

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.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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.


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.


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