|
| |
|
| |
(b) | for specific performance of a statutory duty under section 45 of the |
| |
Court of Session Act 1988 (c. 36); or |
| |
(c) | for any other appropriate remedy or relief. |
| |
(7) | The relevant person for the purposes of sub-paragraph (6) is the person with, |
| 5 |
or in favour of whom, the agreement or instrument is to be entered into or |
| |
| |
Effect of nuclear transfer schemes |
| |
5 (1) | In relation to each provision of a nuclear transfer scheme for the transfer of |
| |
property, rights or liabilities, or for the creation of interests, rights or |
| 10 |
| |
(a) | this Act shall have effect so as, without further assurance, to vest the |
| |
property or interests, or the rights or liabilities, in the transferee at |
| |
the time at which the scheme comes into force; and |
| |
(b) | the provisions of that scheme in relation to that property or those |
| 15 |
interests, or in relation to those rights or liabilities, shall have effect |
| |
| |
(2) | Sub-paragraph (1) is subject to so much of a nuclear transfer scheme as |
| |
| |
(a) | the transfer of property, rights or liabilities which are to be |
| 20 |
transferred in accordance with the scheme, or |
| |
(b) | the creation of interests, rights and liabilities which are to be created |
| |
in accordance with the scheme, |
| |
| to be effected by or under an agreement or instrument entered into or |
| |
executed in pursuance of an obligation imposed by virtue of paragraph 4(1). |
| 25 |
(3) | In its application to Scotland, sub-paragraph (1) has effect with the omission |
| |
of the words “without further assurance”. |
| |
Supplementary provisions of schemes |
| |
6 (1) | A nuclear transfer scheme may make incidental, supplemental, |
| |
consequential and transitional provision in connection with the transfers to |
| 30 |
be made in accordance with the scheme. |
| |
(2) | Such provision may include different provision for different cases or |
| |
| |
(3) | In particular, a nuclear transfer scheme may make provision, in relation to |
| |
transfers in accordance with the scheme— |
| 35 |
(a) | for the transferee to be treated as the same person in law as the |
| |
| |
(b) | for agreements made, transactions effected or other things done by |
| |
or in relation to the transferor to be treated, so far as may be |
| |
necessary for the purposes of or in connection with the transfers, as |
| 40 |
made, effected or done by or in relation to the transferee; |
| |
(c) | for references in an agreement, instrument or other document to the |
| |
transferor or to an employee or office holder with the transferor to |
| |
have effect, so far as may be necessary for the purposes of or in |
| |
connection with any of the transfers, with such modifications as are |
| 45 |
specified in the scheme; and |
| |
|
| |
|
| |
|
(d) | for proceedings commenced by or against the transferor to be |
| |
continued by or against the transferee. |
| |
(4) | Sub-paragraph (3)(c) does not apply to references in an enactment or in |
| |
| |
(5) | A nuclear transfer scheme may make provision for disputes as to the effect |
| 5 |
| |
(a) | between different transferees, or |
| |
(b) | between a transferee and a transferor, |
| |
| to be referred to such arbitration as may be specified in or determined under |
| |
| 10 |
(6) | Where a person is entitled, in consequence of a nuclear transfer scheme, to |
| |
possession of a document relating in part to the title to land or other |
| |
property in England and Wales, or to the management of such land or other |
| |
| |
(a) | the scheme may provide for that person to be treated as having given |
| 15 |
another person an acknowledgement in writing of the right of that |
| |
other person to production of the document and to delivery of copies |
| |
| |
(b) | section 64 of the Law of Property Act 1925 (c. 20) (production and |
| |
safe custody of documents) shall have effect accordingly, and on the |
| 20 |
basis that the acknowledgement did not contain an expression of |
| |
| |
(7) | Where a person is entitled, in consequence of a nuclear transfer scheme, to |
| |
possession of a document relating in part to the title to land or other |
| |
property in Scotland or to the management of such land or other property, |
| 25 |
subsections (1) and (2) of section 16 of the Land Registration (Scotland) Act |
| |
1979 (c. 33) (omission of certain clauses in deeds) shall have effect in relation |
| |
| |
(a) | as if the transfer had been effected by deed; and |
| |
(b) | as if the words “unless specially qualified” were omitted from each |
| 30 |
| |
(8) | In this paragraph references to a transfer in accordance with a nuclear |
| |
transfer scheme include references to the creation in accordance with such a |
| |
scheme of an interest, right or liability. |
| |
Proof of title by certificate |
| 35 |
7 | A certificate issued by the Secretary of State to the effect that any property, |
| |
right or liability vested at a particular time in accordance with a nuclear |
| |
transfer scheme in a person specified in the certificate shall be conclusive |
| |
evidence of the matters specified in the certificate. |
| |
Duties in relation to foreign property |
| 40 |
8 (1) | Where there is a transfer in accordance with a nuclear transfer scheme of— |
| |
| |
(b) | a foreign right or liability, |
| |
| the transferor and the transferee must take all requisite steps to secure that |
| |
the vesting of the foreign property, right or liability in the transferee by this |
| 45 |
Act is effective under the relevant foreign law. |
| |
|
| |
|
| |
|
(2) | Until the vesting of the foreign property, right or liability in the transferee in |
| |
accordance with the scheme is effective under the relevant foreign law, the |
| |
| |
(a) | hold the property or right for the benefit of the transferee; or |
| |
(b) | discharge the liability on behalf of the transferee. |
| 5 |
(3) | Nothing in sub-paragraph (1) or (2) prejudices the effect under the law of a |
| |
part of the United Kingdom of the vesting of any foreign property, right or |
| |
liability in the transferee in accordance with a nuclear transfer scheme. |
| |
| |
(a) | any foreign property, right or liability is acquired or incurred by the |
| 10 |
transferor in respect of any other property, right or liability, and |
| |
(b) | by virtue of this paragraph, the transferor holds the other property |
| |
or right for the benefit of another person or is required to discharge |
| |
the liability on behalf of another person, |
| |
| the property, right or liability acquired or incurred shall immediately |
| 15 |
become the property, right or liability of that other person. |
| |
(5) | The provisions of sub-paragraphs (1) to (4) shall have effect in relation to |
| |
foreign property, rights or liabilities transferred to a person under sub- |
| |
paragraph (4) as they have effect in the case of property, rights and liabilities |
| |
transferred in accordance with a nuclear transfer scheme. |
| 20 |
(6) | Where the transferor of foreign property, or of a foreign right or liability, is |
| |
| |
(a) | the transferor shall have all such powers as it or they may require for |
| |
the performance of obligations imposed on it or them under this |
| |
| 25 |
(b) | the transferee must, so far as practicable, act on behalf of the |
| |
transferor in performing the obligations imposed on the transferor |
| |
| |
(7) | References in this paragraph to foreign property, or to a foreign right or |
| |
liability, are references to any property, right or liability as respects which an |
| 30 |
issue arising in any proceedings would be determined (in accordance with |
| |
the rules of private international law) by reference to the law of a country or |
| |
territory outside the United Kingdom. |
| |
(8) | Expenses incurred by a transferor under this paragraph shall be met by the |
| |
| 35 |
(9) | An obligation imposed under this paragraph in relation to property, rights |
| |
or liabilities shall be enforceable as if contained in a contract between the |
| |
transferor and the transferee. |
| |
Modification of scheme by agreement |
| |
9 (1) | This paragraph applies in the case of a nuclear transfer scheme where a |
| 40 |
transferee agrees in writing— |
| |
| |
(b) | with another transferee under that scheme, or |
| |
(c) | with a transferor or transferee under another nuclear transfer |
| |
| 45 |
| that provision falling within sub-paragraph (2) be made for the purpose of |
| |
modifying the effect of the scheme or (as the case may be) the effect of either |
| |
| |
|
| |
|
| |
|
(2) | That provision is provision that— |
| |
(a) | property, rights or liabilities transferred in accordance with the |
| |
scheme or either of them, and |
| |
(b) | property, rights or liabilities acquired or incurred since the transfer |
| |
in respect of the transferred property, rights or liabilities, |
| 5 |
| be transferred from one party to the agreement to the other as from a date |
| |
appointed by the agreement. |
| |
| |
(a) | the agreement is entered into within the period of three years after |
| |
the coming into force of any transfer made in accordance with either |
| 10 |
of the schemes to a party to the agreement, and |
| |
(b) | the Secretary of State has given his approval to the transfer for which |
| |
the agreement provides, and to its terms and conditions, |
| |
| the transfer for which the agreement provides shall take effect on the date |
| |
appointed by the agreement as if it were a transfer in accordance with a |
| 15 |
| |
(4) | Subject to the approval of the Secretary of State and to sub-paragraph (5), the |
| |
provisions that may be contained in a modification agreement include any |
| |
provision in relation to a transfer for which it provides as is capable of being |
| |
contained in a nuclear transfer scheme in relation to a transfer for which the |
| 20 |
| |
(5) | Nothing in a modification agreement is to provide for interests, rights or |
| |
liabilities to be created, as opposed to transferred, except as between persons |
| |
who are parties to the agreement. |
| |
| 25 |
(a) | refusing his approval for the purposes of this paragraph, or |
| |
(b) | giving his approval for those purposes in a case where the NDA is |
| |
not a party to the proposed agreement, |
| |
| the Secretary of State must consult the NDA. |
| |
(7) | The consent of the Treasury is required for the giving of an approval by the |
| 30 |
Secretary of State for the purposes of this paragraph. |
| |
(8) | In this paragraph references to a transfer in accordance with a nuclear |
| |
transfer scheme include references to the creation of an interest, right or |
| |
liability in accordance with such a scheme. |
| |
The Transfer of Undertakings (Protection of Employment) Regulations 1981 |
| 35 |
10 (1) | The 1981 regulations apply to a transfer of an undertaking or part of an |
| |
| |
(a) | in accordance with a nuclear transfer scheme, or |
| |
(b) | in accordance with a modification agreement, |
| |
| as if (in so far as that would not otherwise be the case) the references in those |
| 40 |
regulations to the transferor were references to the person in whom that |
| |
undertaking or part was vested immediately before the coming into force of |
| |
| |
(2) | It shall be the duty of the Secretary of State, before— |
| |
(a) | making a nuclear transfer scheme, or |
| 45 |
(b) | approving a modification agreement, |
| |
| to give such notice of his proposals to such persons as he considers |
| |
appropriate for enabling the provisions of the 1981 regulations applicable to |
| |
|
| |
|
| |
|
a transfer in accordance with the scheme or agreement to be complied with |
| |
| |
(3) | In sub-paragraph (2) “the transferor”, in relation to a transfer, means the |
| |
person who is the transferor in relation to that transfer for the purposes of |
| |
| 5 |
| |
| “the 1981 regulations” means the Transfer of Undertakings (Protection |
| |
of Employment) Regulations 1981 (S.I. 1981/1794); |
| |
| “undertaking” has the same meaning as in the 1981 regulations. |
| |
Compensation for third parties |
| 10 |
| |
(a) | an entitlement of a third party to an interest or right would, apart |
| |
from a provision of a nuclear transfer scheme or paragraph 2(4) and |
| |
(5), arise in respect of the transfer or creation in accordance with a |
| |
nuclear transfer scheme of any property, rights or liabilities, |
| 15 |
(b) | the provisions of that scheme or of paragraph 2(4) and (5) have the |
| |
effect of preventing the third party’s entitlement to that interest or |
| |
right from arising in respect of anything for which the scheme |
| |
| |
(c) | provision is not made by the scheme for securing that an entitlement |
| 20 |
to that interest or right, or to an equivalent interest or right, is |
| |
preserved or created so as to arise in respect of the first occasion |
| |
when corresponding circumstances next occur after the coming into |
| |
force of the transfers for which the scheme provides, |
| |
| the third party shall be entitled to such compensation as may be just in |
| 25 |
respect of the extinguishment of his entitlement. |
| |
(2) | Where, in consequence of provisions included in a nuclear transfer scheme, |
| |
the interests, rights or liabilities of a third party are modified as mentioned |
| |
in sub-paragraph (3), the third party shall be entitled to such compensation |
| |
as may be just in respect of— |
| 30 |
(a) | any diminution in the value of his interests or rights, or |
| |
(b) | any increase in the burden of his liabilities, |
| |
| which is attributable to that modification. |
| |
(3) | Those modifications are modifications by virtue of which— |
| |
(a) | an interest of the third party in property is transformed into, or |
| 35 |
replaced by, an interest in only part of that property; |
| |
(b) | an interest of the third party in property is transformed into, or |
| |
replaced by, separate interests in different parts of that property; |
| |
(c) | a right of the third party against the transferor is transformed into, or |
| |
replaced by, two or more rights which do not include a right which, |
| 40 |
on its own, is equivalent (disregarding the person against whom it is |
| |
enforceable) to the right against the transferor; or |
| |
(d) | a liability of the third party to the transferor is transformed into, or |
| |
replaced by, two or more separate liabilities at least one of which is a |
| |
liability enforceable by a person other than the transferor. |
| 45 |
(4) | A liability to pay compensation under this paragraph shall fall on such |
| |
persons mentioned in sub-paragraphs (5) and (6) as— |
| |
(a) | benefit from the extinguishment of the entitlement mentioned in |
| |
| |
|
| |
|
| |
|
(b) | have interests in the whole or any part of the property affected by the |
| |
modification in question; |
| |
(c) | are subject to the rights of the person to be compensated which are |
| |
affected by that modification; or |
| |
(d) | are entitled to enforce the liabilities of the person to be compensated |
| 5 |
which are affected by that modification. |
| |
| |
(a) | a Minister of the Crown; |
| |
| |
| 10 |
(d) | a publicly owned company which is a transferor or a transferee for |
| |
the purposes of the provisions of the scheme giving rise to the |
| |
| |
(e) | a person who consented to the provisions of the scheme giving rise |
| |
| 15 |
(6) | Where in the case of a recovery scheme the transferor is not a publicly owned |
| |
company, those persons also include— |
| |
(a) | the relevant contractor; and |
| |
| |
(7) | A liability to pay compensation under this paragraph must be apportioned |
| 20 |
between the persons liable to pay it in such manner as may be appropriate |
| |
having regard to the extent of— |
| |
(a) | the benefit they respectively obtain from the extinguishment; or |
| |
(b) | the interests, rights or liabilities in respect of which they are liable to |
| |
| 25 |
(8) | Where compensation is paid by any person in connection with provisions of |
| |
a recovery scheme, the person paying the compensation may, if and to the |
| |
extent that the Secretary of State so directs, recover the amount paid from— |
| |
(a) | the relevant contractor; and |
| |
| 30 |
| |
(a) | whether any compensation is to be paid under this paragraph, |
| |
(b) | the person to or by whom it is to be paid, or |
| |
(c) | the amount to be paid by any person, |
| |
| shall be referred to and determined by the person mentioned in sub- |
| 35 |
| |
| |
(a) | where the claimant requires the matter to be determined in England |
| |
and Wales or in Northern Ireland, an arbitrator appointed by the |
| |
| 40 |
(b) | where the claimant requires the matter to be determined in Scotland, |
| |
an arbiter appointed by the Lord President of the Court of Session. |
| |
(11) | In the preceding provisions of this paragraph “third party”, in relation to a |
| |
nuclear transfer scheme, means a person other than the transferor or the |
| |
| 45 |
(12) | This paragraph shall have effect in relation to— |
| |
|
| |
|
| |
|
(a) | the provisions of an agreement or instrument entered into or |
| |
executed in pursuance of an obligation imposed in a nuclear transfer |
| |
| |
(b) | the provisions of a modification agreement relating to property, |
| |
rights or liabilities transferred or created in accordance with a |
| 5 |
| |
| as it has effect in relation to the scheme but as if, in the case of a modification |
| |
agreement, everyone who is not a party to the agreement were a third party. |
| |
Compensation for transferor in case of a recovery scheme |
| |
12 (1) | If the Secretary of State is satisfied in the case of a recovery scheme that it is |
| 10 |
| |
(a) | pay compensation to the transferor in respect of property or rights of |
| |
which he is deprived in accordance with the scheme; or |
| |
(b) | direct the NDA to pay such compensation. |
| |
(2) | No compensation shall be payable under this paragraph to the relevant |
| 15 |
| |
(3) | Where compensation is paid under this paragraph and the Secretary of State |
| |
so directs, so much of the compensation as may be specified in the direction |
| |
may be recovered by him or (as the case may be) by the NDA from the |
| |
| 20 |
(4) | The amount of any compensation under this paragraph shall be determined |
| |
by the Secretary of State. |
| |
| |
(a) | whether any compensation is to be paid under this paragraph, |
| |
(b) | the person to or by whom it is to be paid, or |
| 25 |
(c) | the amount to be paid by any person, |
| |
| shall be referred to and determined by the person mentioned in sub- |
| |
| |
| |
(a) | where the claimant requires the matter to be determined in England |
| 30 |
and Wales or in Northern Ireland, an arbitrator appointed by the |
| |
| |
(b) | where the claimant requires the matter to be determined in Scotland, |
| |
an arbiter appointed by the Lord President of the Court of Session. |
| |
(7) | This paragraph shall have effect in relation to— |
| 35 |
(a) | the provisions of an agreement or instrument entered into or |
| |
executed in pursuance of an obligation imposed in a recovery |
| |
| |
(b) | the provisions of a modification agreement relating to property, |
| |
rights and liabilities transferred or created in accordance with a |
| 40 |
| |
| as it has effect in relation to the scheme. |
| |
| |
| |
| “modification agreement” means an agreement for a transfer that is to |
| 45 |
have effect in accordance with paragraph 9(3); |
| |
|
| |
|