Exercise of discretion in share plans: can discretion ever be absolute?

International Comparative Guides | 06 February 2019


There are a number of occasions when a company operating a share plan will need to exercise its discretion.  On grant, a decision needs to be made as to who will receive an award, how many shares will be subject to it and what other conditions (such as those relating to vesting and performance) will apply.  Plan rules often give the grantor a discretion as to how to treat awards held by leavers.  This might include deciding whether they are a “good” or “bad” leaver, whether and to what extent their award will vest and the point at which they will be able to exercise their rights.  The potential for having rights taken away at the apparent whim of the board could reduce the incentive value of share plan participation.  To redress this, it is common for plan rules to require that any discretion is exercised “fairly and reasonably” (indeed, certain UK tax-advantaged share plans will be expected to contain this qualification).  However, some plans are drafted to give the board an “absolute” discretion in certain circumstances.  Irrespective of the impact of such wording on employee morale, recent decisions in the English courts demonstrate that anybody exercising such a discretion needs to tread carefully. [Continue Reading]

Workplace law: Doyle Clayton

Workplace Law | 23 January 2019

The Prisoner of (Egon) Zehnder
Non-compete clauses – are they still useful? Do they still work?

There’s no doubting that Anne M Mulcahy, former chair and chief executive of Xerox got it right: ‘Employees are a company’s greatest asset – they’re your competitive advantage. You want to attract and retain the best; provide them with encouragement, stimulus, and make them feel that they are an integral part of the company’s mission.’ [Continue Reading]

Ashfords’ retail roundup

Retail | 23 January 2019


Can retail help lead the renewables ‘quiet revolution’?

The National Infrastructure Commission was established in 2015 to provide independent advice on the UK’s long-term infrastructure needs. This year it has published the National Infrastructure Assessment (NIA) 2018, one of the recommendations being that at least 50% of energy in the UK should be generated by renewable sources by 2030. The report states that: [Continue Reading]

Dechert: Brexit partner

Brexit | 23 January 2019

Brexit preparations for private equity firms

On 29 March 2017 the United Kingdom (UK) gave notice under Article 50 of the Treaty on the European Union that it intended to leave the European Union (EU). The UK’s departure is scheduled to take effect on 29 March 2019. [Continue Reading]

Using a mark ‘in the course of trade’: the Malaysian context

Intellectual Property | 23 January 2019

Section 38(1) of the Malaysian Trade Marks Act (TMA) 1976 establishes the test for trademark infringement, namely, where a person who is not the registered proprietor of the trade mark uses a mark which is identical to or so nearly resembling the registered mark such that it is likely to deceive or cause confusion in the course of trade in relation to the goods or services in respect of which the trade mark is registered. [Continue Reading]

The first 100 days

The first 100 days as a GC | 23 January 2019

Who better to learn from than those who have gone before you? That was the core of the idea behind our survey with The In-House Lawyer; to ask current GCs and heads of legal to share their experiences and provide advice to those new in post or hoping to become departmental leader. Hindsight is a wonderful thing and even more useful as foresight. [Continue Reading]

Real estate projects in Slovenia: the basics you need

Real Estate | 23 January 2019

The Slovenian legal system is a civil law system. Transfer of property is regulated predominantly by the Law of Property Code, the Code of Obligations and the Land Register Act. These regulations lay down rules regarding the acquisition and transfer of property as well as formal contractual requirements, whereas some other restrictions, for example pre-emption rights of municipalities or administrative approvals of transfers, can be found throughout the legislation if the property that is the subject of transaction is located in certain areas of particular importance to the public interest. [Continue Reading]

The essential facts for real estate projects in Mexico

Real Estate | 23 January 2019

Real estate in Mexico involves several branches of the law. The enforcement of the law varies according to the branch responsible for the matter. Income tax, for example, is a federal tax, but, in general, real estate projects depend on the municipality or state where the development takes place. [Continue Reading]

Contributing Firm

Author image