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| |
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(3) | Subject to that, the provisions of this Act come into force on such day as the |
| |
Secretary of State or the Treasury may by order appoint (and different days |
| |
may be appointed for different purposes). |
| |
(4) | The Secretary of State or the Treasury may by order make such transitional |
| |
provision and savings as they consider necessary or expedient in connection |
| 5 |
with the commencement of any provision made by this Act. |
| |
(5) | The provisions of this Act extend to the United Kingdom. |
| |
(6) | Nothing in this Act shall impose any charge on the people or on public |
| |
funds, or vary the amount or incidence of or otherwise alter any such charge |
| |
in any manner, or affect the assessment, levying, administration or |
| 10 |
application of any money raised by any such charge. |
| |
|
| |
|
| |
|
| |
| |
| |
| |
| |
| 5 |
“transfer scheme” means a transfer scheme under section 7; |
| |
| |
(a) | in relation to a transfer scheme, means a person to whom |
| |
property, rights or liabilities are transferred in accordance |
| |
| 10 |
(b) | in relation to particular property, rights or liabilities |
| |
transferred or created in accordance with a transfer scheme, |
| |
means the person to whom that property or those rights or |
| |
liabilities are transferred or in whose favour, or in relation to |
| |
| 15 |
| |
(a) | in relation to a transfer scheme, means a person from whom |
| |
property, rights or liabilities are transferred in accordance |
| |
| |
(b) | in relation to particular property, rights or liabilities |
| 20 |
transferred or created in accordance with a transfer scheme, |
| |
means the person from whom that property or those rights or |
| |
liabilities are transferred or the person who or whose |
| |
property is subject to the interest or right created by the |
| |
scheme or for whose benefit the liability is created; and |
| 25 |
“third party”, in relation to a transfer scheme, means any person except |
| |
the transferor or transferee. |
| |
(2) | Any reference in this Schedule to a right or to an entitlement to a right |
| |
includes an entitlement to exercise a right, and any reference to a right’s |
| |
arising accordingly includes its becoming exercisable. |
| 30 |
Identification of property etc to be transferred |
| |
2 (1) | A transfer scheme may identify the property, rights and liabilities to be |
| |
transferred by specifying or describing them. |
| |
(2) | A transfer scheme may provide for the way in which property, rights or |
| |
liabilities of any description are to be identified. |
| 35 |
Property, rights and liabilities that may be transferred |
| |
3 (1) | A transfer scheme may transfer— |
| |
|
| |
|
| |
|
(a) | property situated in any part of the world; |
| |
(b) | rights and liabilities arising (in any way) under the law of any |
| |
| |
(2) | The property, rights and liabilities that may be transferred by a transfer |
| |
| 5 |
(a) | property, rights and liabilities acquired or arising after the scheme |
| |
has been made but before the time specified under paragraph 6(1); |
| |
(b) | rights and liabilities arising after that time in respect of matters |
| |
occurring before that time; |
| |
(c) | property, rights and liabilities that would not otherwise be capable |
| 10 |
of being transferred or assigned. |
| |
(3) | The transfers to which effect may be given by a transfer scheme include |
| |
transfers that are to take effect in accordance with the scheme as if there |
| |
| |
(a) | no such requirement to obtain a person's consent or concurrence, |
| 15 |
(b) | no such liability in respect of a contravention of any other |
| |
| |
(c) | no such interference with any interest or right, |
| |
| as there would be, in the case of a transaction apart from the scheme, by |
| |
reason of any provision having effect (whether under an enactment or |
| 20 |
agreement or otherwise) in relation to the terms on which the transferor is |
| |
entitled or subject to anything to which the transfer relates. |
| |
(4) | Sub-paragraph (3) has effect where shares in a subsidiary of the transferor |
| |
are transferred as if the reference to the terms on which the transferor is |
| |
entitled or subject to anything to which the transfer relates included a |
| 25 |
reference to the terms on which the subsidiary is entitled or subject to |
| |
anything immediately before the transfer takes effect. |
| |
Dividing and modifying transferor’s property, rights and liabilities |
| |
4 (1) | A transfer scheme may contain provision— |
| |
(a) | for the creation, in favour of a transferor or transferee, of an interest |
| 30 |
or right in or in relation to property or rights transferred in |
| |
accordance with the scheme; |
| |
(b) | for giving effect to a transfer by the creation, in favour of the |
| |
transferee, of an interest or right in or in relation to property or rights |
| |
retained by a transferor; |
| 35 |
(c) | for the creation of new rights and liabilities (including rights of |
| |
indemnity and duties to indemnify) as between different transferees |
| |
and as between a transferee and a transferor. |
| |
(2) | A transfer scheme may contain provision for the creation of rights and |
| |
liabilities for the purpose of converting arrangements between different |
| 40 |
parts of a transferor's undertaking into a contract between different |
| |
transferees or between a transferee and a transferor. |
| |
(3) | A transfer scheme may contain provision— |
| |
(a) | for rights and liabilities to be transferred so as to be enforceable by or |
| |
against more than one transferee or by or against both the transferee |
| 45 |
| |
(b) | for rights and liabilities enforceable against more than one person in |
| |
accordance with provision falling within paragraph (a) to be |
| |
|
| |
|
| |
|
enforceable in different or modified respects by or against each or |
| |
| |
(4) | A transfer scheme may contain provision for interests, rights or liabilities of |
| |
third parties in relation to anything to which the scheme relates to be |
| |
modified in the manner set out in the scheme. |
| 5 |
(5) | Paragraph 3(2)(c) and (3) apply to the creation of interests and rights as they |
| |
apply to the transfer of interests and rights. |
| |
Obligation to effect transfers etc |
| |
5 (1) | A transfer scheme may impose on a transferee or transferor an obligation— |
| |
(a) | to enter into an agreement (specified or described in the scheme) |
| 10 |
with another person on whom a corresponding obligation is, could |
| |
be or has been imposed by virtue of this paragraph (whether in the |
| |
same or a different scheme), or |
| |
(b) | to execute an instrument (specified or described in the scheme) in |
| |
| 15 |
(2) | A transfer scheme that imposes such an obligation may provide that |
| |
paragraph 3(3) applies (to the extent specified in the scheme) in relation to— |
| |
(a) | a transfer made by or under an agreement or instrument made in |
| |
pursuance of the obligation; |
| |
(b) | interests or rights created by or under such an agreement or |
| 20 |
| |
(3) | Subject to that, nothing in paragraph 3 enables— |
| |
(a) | an agreement or instrument made in pursuance of such an |
| |
| |
(b) | anything done under such an agreement or instrument, |
| 25 |
| to give effect to a transfer, or to create an interest or right, that could not |
| |
otherwise have been made or created by or under the agreement or |
| |
| |
(4) | An obligation imposed by virtue of sub-paragraph (1) may be enforced by |
| |
the person with (or in favour of) whom the agreement or instrument is to be |
| 30 |
entered into or executed, in proceedings for any of the following— |
| |
| |
(b) | specific performance of a statutory duty under section 45 of the |
| |
Court of Session Act 1988 (c. 36); |
| |
(c) | any other appropriate remedy or relief. |
| 35 |
Effect of transfer scheme: general |
| |
6 (1) | At the time specified in the scheme, the relevant property, interests, rights |
| |
and liabilities vest (by virtue of this sub-paragraph) in the transferee. |
| |
(2) | “The relevant property, interests, rights and liabilities” are— |
| |
(a) | the property, rights and liabilities that are, in accordance with the |
| 40 |
scheme, to be transferred, and |
| |
(b) | the interests, rights and liabilities that are, in accordance with the |
| |
| |
|
| |
|
| |
|
(3) | Sub-paragraph (1) is subject to any provision of the scheme that provides |
| |
that the transfer or creation of any property, interests, rights or liabilities is |
| |
to be effected by or under an agreement or instrument entered into or |
| |
executed in pursuance of an obligation imposed by virtue of paragraph 5(1). |
| |
Effect of transfer scheme on right to terminate or modify interest etc |
| 5 |
7 (1) | This paragraph applies where a person would otherwise be entitled, in |
| |
consequence of anything done or likely to be done by or under this Act in |
| |
connection with a transfer scheme— |
| |
(a) | to terminate, modify, acquire or claim an interest or right, or |
| |
(b) | to treat an interest or right as modified or terminated. |
| 10 |
| |
(a) | is not enforceable in relation to the interest or right until after the |
| |
transfer of the interest or right by the scheme, and |
| |
(b) | after that transfer, is enforceable in relation to the interest or right |
| |
only in so far as the scheme contains provision for the interest or |
| 15 |
right to be transferred subject to whatever confers the entitlement. |
| |
(3) | Where shares in a subsidiary of the transferor are transferred, sub- |
| |
paragraph (2) has effect in relation to an interest or right of the subsidiary as |
| |
if the references to the transfer of the interest or right included a reference to |
| |
the transfer of the shares. |
| 20 |
(4) | A transfer scheme that (by virtue of paragraph 5(1)) contains an obligation |
| |
to enter into or execute an agreement or instrument may provide for sub- |
| |
paragraphs (1) to (3) to apply to interests or rights affected by— |
| |
(a) | the agreement or instrument, or |
| |
(b) | a proposal for the agreement or for the execution of the instrument. |
| 25 |
(5) | Where the scheme does so provide, sub-paragraphs (1) to (3) apply in |
| |
relation to the interests or rights as if references there to the transfer scheme |
| |
included the agreement or instrument. |
| |
Supplementary provisions of schemes |
| |
8 (1) | A transfer scheme may contain incidental, supplemental, consequential and |
| 30 |
transitional provision; and different provision may be made for different |
| |
| |
(2) | Nothing in paragraphs 9 to 13 limits sub-paragraph (1). |
| |
(3) | In those paragraphs any reference to a transfer in accordance with a transfer |
| |
scheme includes the creation in accordance with such a scheme of an |
| 35 |
interest, right or liability. |
| |
9 | A transfer scheme may provide, in relation to transfers in accordance with |
| |
| |
(a) | for the transferee to be treated as the same person in law as the |
| |
| 40 |
(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 |
| |
made, effected or done by or in relation to the transferee; |
| |
|
| |
|
| |
|
(c) | for references in an agreement, instrument or other document (but |
| |
not in an enactment) 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 specified in the scheme; and |
| 5 |
(d) | for proceedings commenced by or against the transferor to be |
| |
continued by or against the transferee. |
| |
10 (1) | A transfer scheme may contain provision about— |
| |
(a) | the transfer of foreign property, rights and liabilities; |
| |
(b) | the creation of foreign rights and interests. |
| 10 |
(2) | For the purposes of this paragraph property, or a right, interest or liability, |
| |
is “foreign” if an issue relating to it arising in any proceedings would (in |
| |
accordance with the rules of private international law) be determined under |
| |
the law of a country or territory outside the United Kingdom. |
| |
11 (1) | A transfer scheme may contain provision for and in connection with the |
| 15 |
payment of compensation to third parties whose property, rights, interests |
| |
or liabilities have been affected by (or by virtue of) a transfer scheme. |
| |
(2) | The provision may provide for the appointment of an arbitrator (or, in |
| |
Scotland, arbiter) to determine disputes about compensation. |
| |
12 | A transfer scheme may make provision for disputes as to the effect of the |
| 20 |
| |
(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 |
| |
| 25 |
13 (1) | Where a person is entitled, in consequence of a 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 |
| 30 |
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) has effect accordingly, and on the basis |
| 35 |
that the acknowledgement did not contain an expression of contrary |
| |
| |
(2) | Where a person is entitled, in consequence of a 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, |
| 40 |
section 16(1) of the Land Registration (Scotland) Act 1979 (c. 33) (omission of |
| |
certain clauses in deeds) has effect in relation to the transfer as if— |
| |
(a) | the transfer had been effected by deed; and |
| |
(b) | in that provision, the words “unless specially qualified” were |
| |
| 45 |
|
| |
|
| |
|
Proof of title by certificate |
| |
14 | A certificate issued by the Secretary of State to the effect that any property, |
| |
interest, right or liability vested (in accordance with a transfer scheme) in a |
| |
person specified in the certificate at a time so specified is conclusive |
| |
evidence of the matters so specified. |
| 5 |
| |
15 | The Transfer of Undertakings (Protection of Employment) Regulations 2006 |
| |
(S.I. 2006/246) apply to a transfer (under a transfer scheme) of rights and |
| |
liabilities under a contract of employment (whether or not the transfer |
| |
would otherwise be a relevant transfer for the purposes of those |
| 10 |
| |
16 | Where an employee of the transferor becomes an employee of the transferee |
| |
by virtue of a transfer scheme— |
| |
(a) | a period of employment with the transferor is to be treated as a |
| |
period of employment with the transferee, and |
| 15 |
(b) | the transfer to the transferee is not to be treated as a break in service. |
| |
| |
| |
(a) | before the end of the period of three years beginning with the time |
| |
specified under paragraph 6(1), the transferor and transferee agree in |
| 20 |
writing that the scheme is to be treated as having come into force at |
| |
that time with such modifications as are specified in the agreement, |
| |
| |
(b) | the Secretary of State, with the consent of the Treasury, approves the |
| |
| 25 |
| the scheme as modified is to be treated for all purposes as having come into |
| |
| |
(2) | An agreement under this paragraph may, in connection with giving effect to |
| |
modifications to the scheme, contain incidental, supplemental, |
| |
consequential and transitional provision (and different provision may be |
| 30 |
made for different purposes). |
| |
Disapplication of certain company law provisions |
| |
| |
(a) | Part 23 of the Companies Act 2006 (c. 46) (distributions), |
| |
(b) | any rule of law relating to distributions by companies, or |
| 35 |
(c) | any rule of law relating to the maintenance of capital by companies, |
| |
| applies in relation to a transfer of property, rights or liabilities, or the |
| |
creation of rights or interests, by or under a transfer scheme. |
| |
|
| |
|