Newsletter Search - International Law Office

Argentina

Insurance & Reinsurance

The insurance regulator has issued a new resolution which amends the General Insurance Regulation. Among the many changes that it introduces, the new resolution increases the amount of documents and information that board members and officers of local insurance and reinsurance companies must provide to the insurance regulator.

Australia

Product Liability

A resurgence in product liability class actions has been predicted in Australia since May 2012. In line with this trend, two product liability class actions have recently been settled in Australia - a class action concerning faulty knee implants manufactured by DePuy and a case brought against Merck in relation to its VIOXX arthritis drug, although the latter still requires court approval.

Bermuda

Corporate Finance/M&A

The previously unavailable concept of mergers has been introduced to the Companies Act as an alternative to the existing amalgamation provision. The amendments have made significant beneficial changes to the act – conveying Bermuda's commitment to business and adaptation to the needs of the global marketplace, while maintaining high standards of corporate governance and reputation as a premier offshore jurisdiction.

Offshore Services

The previously unavailable concept of mergers has been introduced to the Companies Act as an alternative to the existing amalgamation provision. The amendments have made significant beneficial changes to the act – conveying Bermuda's commitment to business and adaptation to the needs of the global marketplace, while maintaining high standards of corporate governance and reputation as a premier offshore jurisdiction.

Brazil

Company & Commercial

Limited liability companies (LLCs) are one of the most common forms of corporate entity in Brazil. The Superior Court of Justice recently recognised the occurrence of fraud in the sale of an LLC property, the quotas of which were partially attached in the enforcement proceedings against its partners. The court held that the sale resulted in the defalcation of the company's assets, rendering the creditor's guarantee ineffective.

Employment & Labour

A new regime governing the retirement of disabled persons will enter into force in November 2013. The new legislation acknowledges the right of disabled persons to retire and defines the term 'disability'. Further, it lays out the criteria for retirement and the method by which a retired insured disabled person's monthly income is calculated. The government will issue an implementing regulation to facilitate compliance.

Trade & Customs

A series of tax incentives connected with the International Federation of Association Football (FIFA) are in place to assist with the construction of stadiums for the 2014 World Cup. The regime allows FIFA to form tax-exempt subsidiaries, as well as offering tax breaks for imports by FIFA's partners. In addition, importers of durable goods and equipment may utilise tax breaks to suspend certain import taxes.

Canada

Corporate Finance/M&A

The Canadian Securities Administrators has proposed a new rule governing shareholder rights plans – or 'poison pills' – that would provide target boards with the ability to delay a takeover bid unilaterally for a minimum of 90 days. If implemented, the proposed rule would likely make the process of completing a hostile bid in Canada more expensive and subject to considerably more uncertainty from the bidder's point of view.

Employment & Labour

The Ontario Workplace Safety and Insurance Board is in a state of flux, with many changes occurring and more on the horizon. While the board has forged ahead with several changes to coverage in the construction industry, employers can expect further amendments to Ontario's workers' compensation system and significant changes in the four benefit policies currently under review.

Insurance & Reinsurance

Canadian insurers have a busy year ahead if they are to meet new regulatory initiatives from the Office of the Superintendent of Financial Institutions. They will not only have to prepare regulatory solvency assessments, but also prepare to meet the requirements of the revised Corporate Governance guideline, while at the same time addressing new requirements for processes to verify earthquake data and utilise sound earthquake models.

Intellectual Property

The Patent Prosecution Highway programme, which promises fast-tracked examination in Canada for applicants which have obtained an indication of allowance in an eligible country, has been a phenomenal success, and has positioned Canada as a highly cost-effective jurisdiction in which to procure patent protection with speed and efficacy. Applicants can benefit from significant cost savings without sacrificing patent quality.

China

Employment & Labour

The secondment of expatriate employees to China has been a headache for multinational companies since 2009, when the tax authorities started to treat secondment as creating a permanent establishment of the overseas employer. However, new rules recently issued under domestic tax law with respect to cross-border secondment will hopefully ease the pain associated with expatriate secondments.

Intellectual Property

A recent decision of the Trademark Review and Adjudication Board confirms that a pseudonym, as an expression of the name of a natural person, may in certain circumstances be considered as a prior right under the Chinese Trademark Law and enforced as such. This case involved Francisco Rabanne Cuervo, a famous Spanish fashion designer who has been using the pseudonym Paco Rabanne for many years.

Colombia

Competition

Recently amended competition laws charged the Superintendence of Industry and Commerce (SIC) with defining relevant markets in the financial and insurance sectors, evaluating competition levels in such markets and highlighting any discernible market failures. Consequently, the SIC will be able to recommend new regulation in order to foster competition, boost efficiency and improve consumer welfare in these sectors.

Cyprus

Banking

Cyprus has recently been in the spotlight as a result of the negotiations with the so-called 'troika' (the International Monetary Fund, the European Central Bank and the European Commission) regarding the terms of financial aid. Although a number of changes are to be introduced, these are unlikely to affect corporate structuring involving Cyprus or banking both in and outside Cyprus using a Cyprus corporate vehicle.

Corporate Tax

The protocol to the recently enacted Cyprus-Russia double tax agreement has amended the definition of 'dividends'. The change has an impact on the tax rate applicable to income earned by a beneficial owner of dividends in a mutual investment fund. The agreement provides for a reduced tax rate of 5% for beneficial owners which have invested €100,000 or more in the paying company; otherwise, the default rate is 10%.

Czech Republic

Corporate Finance/M&A

The new Civil Code has been passed by Parliament and is due to take effect from next January. Although it contains no specific provisions relating to representations and warranties in share purchase agreements, it is based on the fundamental principle of the free will of parties to contract as they wish. It is hoped that the code will encourage courts to issue more practical interpretations of the law in this area.

Denmark

Employment & Labour

The EU advocate general recently found that an age-graduated pension scheme was in compliance with EU law. In his decision, he held that any such age-graduated pension scheme was an act of age discrimination. The main question was therefore whether such discrimination fell within the derogation of Section 6a of the Danish Anti-discrimination Act, or whether it could be deemed unlawful.

Intellectual Property

The Maritime and Commercial Court recently considered an alleged violation of design rights for two competing herb and spice grinders. Grace Manufacturing Inc argued that Herstal's herb and spice grinder with cutting blades violated Grace's design registration for a similar product. The case centred on whether the cutting blades could be considered visible, and thus eligible for protection.

European Union

Trade & Customs

A World Trade Organisation compliance panel recently heard arguments from the United States that the European Union had failed to comply with the ruling against its support of the large civil aircraft sector. In EC – Large Civil Aircraft the original panel found that the European Union's support of Airbus projects must be brought into line with the Agreement on Subsidies and Countervailing Measures.

Germany

White Collar Crime

Anti-corruption clauses are becoming more common in German contract practice. The objective of companies using such clauses is to protect against corrupt behaviour of business partners and ensuing risks of administrative fines and damage claims, as well as impending image loss. Although many of the anti-corruption clauses in place are at risk of being held invalid, they should nonetheless be taken seriously.

Guatemala

Energy & Natural Resources

The Constitutional Court has confirmed a decision upholding an action brought by the attorney for human rights against the ministers of economy and energy and mines. The action accused the authorities of inaction and non-compliance with their obligation to safeguard consumer and user rights by failing to protect consumers against the National Energy Commission's approval of adjustments to electricity rates.

Hungary

Intellectual Property

The Metropolitan Court of Budapest recently issued several decisions upholding preliminary injunctions against a group of generic pharmaceutical manufacturers and wholesalers that wished to make commercial use of generic sildenafil-based drug products corresponding to Pfizer's Viagra and Sildenafil Pfizer products. The court issued the decisions in a rehearing ordered by the Metropolitan Appeal Court.

India

Aviation

A recent deal between Jet Airways and Etihad Airways, valued at $379 million, forms part of the government's new policy to encourage foreign direct investment in India. It is hoped that the infusion of foreign direct investment into civil aviation will result in improvements to the economy, a growth in traffic at Indian airports and the creation of job opportunities.

Banking

The Factoring Regulation Act aims to regulate factors and lay down a framework for the assignment of receivables. Under the act, a factoring company must register with the Reserve Bank of India (RBI) as a non-banking financial company (NBFC) and comply with the relevant prudential regulations. The RBI has recently introduced a new category of NBFCs, known as NBFC factors, and issued directions for such factors.

Israel

Aviation

The Magistrates Court of Tel Aviv recently stated that negligence did not constitute a cause of action under the Warsaw Convention and the Carriage by Air Law. The court accepted the argument that the "occurrence which caused the damage" took place while the shipment was no longer under the control and supervision of the carrier. The case centred on failure to store a shipment under refrigeration while awaiting collection.

Competition

Counselling on the appropriate bounds of information exchange and coordination between competing parties that wish to merge or act in a joint venture can be challenging for antitrust practitioners. Due to high levels of confusion, a lack of case law and the need for accurate advice, over the past few months the Antitrust Authority and the appellate court have provided some practical guidelines on this matter.

Italy

Competition

The Competition Authority recently fined Telecom Italia for exclusionary conduct aimed at hampering its competitors' market expansion. The authority determined that Telecom Italia abused its dominant position by denying wholesale network infrastructure access and broadband access to its competitors and by offering anti-competitive discounts to its business clients, thereby squeezing its rivals' margins.

Jersey

Offshore Services

A number of regulatory changes have recently been made that may be of interest to managers of investment funds in Jersey. Consultation is ongoing regarding implementation of the EU Alternative Investment Fund Managers Directive and the US Foreign Account Tax Compliance Act in Jersey. In addition, the Financial Services Commission has addressed the regulatory treatment of managed accounts.

Kosovo

Trade & Customs

Parties which import goods into Kosovo must observe the rules and methods laid down in the Customs and Excise Code in order to calculate customs duties. Duties are calculated based on the customs value of imported goods according to the Harmonised Commodity Description and Coding System, as advocated by the World Customs Organisation. A 10% customs tariff is added to the customs value of the imported goods.

Luxembourg

Corporate Tax

The Administrative Court of Appeal has overturned a judgment of the Lower Administrative Court regarding the qualification of a debt waiver as a tax-neutral hidden capital contribution. The appeal court concluded that a debt waiver is an economic asset, eligible to qualify as an additional informal capital contribution. Consequently, the amount waived may not be treated as a taxable profit.

Netherlands

Competition

The East Netherlands District Court has ruled that ABB must compensate Dutch electricity grid operator TenneT for damages that it suffered as a result of the gas-insulated switchgear cartel. The exact amount of damages to be paid to TenneT will be determined in separate proceedings. This is the first substantive ruling on cartel damages in the Netherlands.

Unfair trading practices initiatives at national, EU and European Competition Network level initially focused on the food supply chain, but have now been extended to other areas. At the national level, pilot schemes have been set up with a number of representatives of the agro-food sector and the textiles industry to implement a code of conduct.

Energy & Natural Resources

In 2012 the Dutch Supreme Court referred to the European Court of Justice preliminary questions in a dispute between three Dutch energy companies and the Dutch state over the compatibility with the Treaty on the Functioning of the European Union of certain provisions in the Electricity Act 1998 and the Gas Act. Advocate General Niilo Jääskinen has now presented his legal opinion on these questions.

New Zealand

Shipping & Transport

The High Court recently clarified the extent of New Zealand's jurisdiction over New Zealand ships on the high seas. The case involved a skipper charged with committing an offence under the Maritime Transport Act by operating his ship in a manner that caused unnecessary risk. The court had to consider whether the act applies extraterritorially, either through its express wording or by implication.

Norway

Shipping & Transport

The Nordic Marine Insurance Plan 2013 recently entered into force. While the plan is largely based on its predecessor, some important changes have been introduced. These amendments will better facilitate use of the plan in other Nordic countries, as well as in the international market. The plan will no doubt provide greater certainty to both insurers and assureds as to the extent of insurance cover.

Poland

Insolvency & Restructuring

The Warsaw common court recently concluded its first successful recovery proceeding - an emerging trend in Polish bankruptcy and recovery judicial practice. A new approach to recovery proceedings by this court, which handles the largest number of insolvency cases in Poland, will improve the chances of successfully initiating and completing such proceedings.

Russia

Company & Commercial

Recent months have seen several developments affecting company registration and organisation. Among other things, a bill has been introduced imposing stricter penalties on compa­nies located at an address other than that specified in the Unified State Register of Legal Entities, significant amendments relating to associations are now in force and a new form of non-profit legal entity has been proposed.

Competition

The Law on Protection of Competition clearly states that its provisions extend to both Russian and foreign legal entities. Moreover, they apply even to agreements and transactions between such entities that are concluded outside Russia. This application is limited to cases in which the agreements or transactions affect competition in Russia; however, this limitation is unclear and gives rise to certain issues.

Singapore

Arbitration

The Singapore International Arbitration Centre (SIAC) has amended its rules of arbitration to incorporate the latest best practices in international arbitration and reflect SIAC's new governance structure. With these recent changes, SIAC has addressed its increasing caseload and emphasised the promotion of time-efficient proceedings.

South Africa

Corporate Tax

The recognition of a company as a separate juristic person, liable for its own tax debts, is an important principle relied on by taxpayers when implementing various transactions. However, when the circumstances of a particular case make it appropriate to do so – inevitably in matters in which separate juristic personality has been used improperly – courts will disregard it by 'piercing the corporate veil'.

The South African Revenue Service recently released an interpretation note on the interaction between the definitions of 'group of companies' in the Income Tax Act. The definitions are of particular importance with regard to the tax implications of the transfer of assets between group companies. The wording of the definitions and their interaction are complex; therefore, it may be worthwhile revisiting the legislation for clarity.

Switzerland

Corporate Immigration

The Federal Council recently invoked the safeguard clause contained in the Agreement on the Free Movement of Persons between the European Union and Switzerland. This clause allows Switzerland to implement unilaterally a quota system for one year, under certain conditions. Consequently, there is currently a quota system in place for the issuance of five-year residence permits for EU-8 and EU-17 nationals.

United Kingdom

Aviation

The Court of Appeal recently issued a decision that is of considerable importance to aircraft lessors, lenders and airlines. The decision sends a clear message that aircraft leases and their related certificates of acceptance should be construed in accordance with their plain, unambiguous terms, and that the risk allocation set forth in those documents between lessee and lessor should be given effect.

Commercial Property

Chancellor George Osborne had warned that he would "not hesitate to move swiftly, without notice and retrospectively" to counter aggressive and widely marketed stamp duty land tax (SDLT) schemes. In Budget 2013, when announcing retrospective SDLT legislation to counter sub-sale schemes, he showed that he was willing to follow through on this promise.

Corporate Immigration

Among other recent developments, the government has clarified the organisational changes affecting the Border Agency in the transition of its functions to the Home Office; UK visa applicants in India will now have the option of paying their visa fees online via credit or debit cards; and the Home Office is removing the full right of appeal for applicants that have been refused leave to enter the United Kingdom as a family visitor.

Litigation

While the courts are increasingly willing to give effect to broader notions of business common sense in construing commercial agreements, a recent Court of Appeal decision highlights the limits of this approach. Despite the thrust of recent decisions, it provides an instance of the written word trumping an arguably more intuitively commercial construction.

USA

Aviation

Including: Regulation of aviation operations; Aircraft; Airports; Liability and accidents; Competition law; Financial support and state aid; Other issues; Emerging trends.

Banking

The Consumer Financial Protection Bureau (CPFB) has released a final rule implementing the remittance transfer provisions in Section 1073 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The final rule provides important new flexibility for remittance transfer providers, especially in open-loop environments such as international wire transfers. The CFPB also extended the effective date of the final rule to October 28 2013.

Competition

The Kansas legislature recently enacted a law that re-establishes that resale price maintenance (RPM) agreements are subject to a rule-of-reason analysis under Kansas antitrust law. The legislation was a direct response to a Kansas Supreme Court decision which held that contrary to a leading US Supreme Court's decision, RPM agreements are still considered per se unlawful under Kansas antitrust law.

Corporate Finance/M&A

The availability of energy sources – whether conventional or unconventional – and the need for infrastructure have created unprecedented demand for capital in the upstream and midstream/downstream oil and gas industry, opening the door for investment by private equity funds. Joint ventures are a hot trend for private equity investors seeking to enter the oil and gas sector and add significant value to their portfolios.

Litigation

The Supreme Court has frequently declined to engage in issues of personal jurisdiction. However, it recently granted review and certiorari in a pair of personal jurisdiction cases, both of which are of significant interest to businesses, as personal jurisdiction delimits a court's ability to hail a defendant into court and subject that defendant to the court's power and punishment. Decisions are expected no later than June 2014.

Media & Entertainment

The director of the Food and Drug Administration (FDA) Office of Prescription Drug Promotion recently indicated that long-awaited draft guidance on the promotion of medical products using the Internet and social media is forthcoming. However, some scepticism is warranted because the industry has been listening to the FDA's promises about forthcoming internet-related guidance for almost two decades.