Latest updates

EPA reverses 'once in, always in' policy for maximum achievable control technology standards
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • February 26 2018

The Environmental Protection Agency has issued a guidance memo that reverses its interpretation of the 'once in, always in' policy, which locked a source into meeting the maximum achievable control technology standards for major sources of hazardous air pollutants under the Clean Air Act. The revised guidance may provide sources that no longer exceed the major source threshold with the opportunity to reduce burdensome monitoring, record-keeping and reporting requirements.

Secret voting in general shareholders' meetings
Schoenherr
  • Company & Commercial
  • Romania
  • February 26 2018

The corporate functioning rules for joint stock companies have been repeatedly altered by Romanian legislation, especially in relation to the governing structures of companies, such as shareholders' assemblies and management bodies. However, some situations create problems in practice or generate inconsistencies within jurisprudence. One such example is the use of secret voting in general shareholders' meetings.

Offshore renewables: proposed updates to BEIS decommissioning programme guidance
CMS Cameron McKenna Nabarro Olswang LLP
  • Energy & Natural Resources
  • United Kingdom
  • February 26 2018

The government Department of Business, Energy and Industrial Strategy recently published a consultation proposing amendments to its guidance for developers and operators of offshore renewable generating stations and transmission assets in respect of decommissioning programmes. The focus of the amendments is on providing greater clarity around the decommissioning cost estimates that developers must provide in their programmes and the financial security that they must provide.

Distinction between administrative assistance in tax matters and legal assistance in criminal matters
CMS von Erlach Poncet Ltd
  • White Collar Crime
  • Switzerland
  • February 26 2018

The Federal Supreme Court recently rendered a landmark decision preventing the Swiss Federal Tax Administration from transmitting un-redacted bank files to the US Internal Revenue Service (IRS) which contained information on third parties which had allegedly helped a US taxpayer to defraud the IRS. What is of particular interest to white collar crime practitioners is the emphasis put on the distinction between administrative assistance in tax matters versus legal assistance in criminal matters.

New DOJ policy on guidance documents may affect environment enforcement cases
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • February 26 2018

The Department of Justice (DOJ) recently issued a new policy in order to prohibit the department from using its civil enforcement authority to compel compliance with agency guidance documents. The policy has major implications for civil environmental enforcement actions, such as new source review cases and Clean Water Act matters in which the DOJ relies heavily on Environmental Protection Agency guidance documents to establish violations of law.

'Repeat infringers' under Digital Millennium Copyright Act not repeat infringers as adjudged by court
Fitzpatrick, Cella, Harper & Scinto
  • Intellectual Property
  • USA
  • February 26 2018

In a recent case, the US Court of Appeals for the Fourth Circuit held that an internet service provider (ISP) was not entitled to the safe harbour of 17 USC Section 512(a) of the Digital Millennium Copyright Act. In so holding, the Fourth Circuit rejected the ISP's argument that the safe harbour requires that an ISP take action only against subscribers who are adjudged in court to be 'repeat infringers'.

Exception to safe harbour principle
Wanhuida Peksung
  • Intellectual Property
  • China
  • February 26 2018

The Beijing IP Court has ruled that an internet service provider which published rules stating that it had verified the legal status of vendors on its platform had to guarantee that the products sold on its platform were genuine. Despite taking measures after being officially informed of an infringement, the service provider remained jointly and severally liable for the infringement as, by publishing the rules, it had endorsed the vendor and lost its strictly neutral position. Therefore, the safe harbour principle did not apply.

Is enough being done to tackle judicial corruption?
Sofunde Osakwe Ogundipe & Belgore
  • White Collar Crime
  • Nigeria
  • February 26 2018

Although corruption in the ranks of Nigerian judicial officers has long been considered an issue, the authorities have been accused of lacking any genuine desire to address the problem. Although the National Judicial Council occasionally penalised judges, no judges were prosecuted. All that changed in 2016, when a number of Nigerian judges were arrested on suspicion of corruption. More recently, the Court of Appeal dismissed corruption charges against another Federal High Court judge.

Public register of shareholder dissent
Squire Patton Boggs
  • Company & Commercial
  • United Kingdom
  • February 26 2018

At the request of the Department for Business, Energy and Industrial Strategy, the Investment Association has launched a public register of Financial Times Stock Exchange All-Share companies, showing occasions where these companies have experienced substantial shareholder dissent. The purpose of the register is to identify companies which receive a high vote against or withdraw a resolution and to understand the process used by those companies to identify and address their shareholders' concerns.

Three yearly returns for LBTT leases – are you ready to review?
Shepherd and Wedderburn LLP
  • Real Estate
  • United Kingdom
  • February 23 2018

Land and buildings transaction tax is a tax on property transactions in Scotland and applies to purchases of residential and commercial properties and leases of commercial premises. One of the components of the regime is the requirement for three yearly reviews of the tax chargeable. The government's approach is for leases to be reviewed for tax purposes on a regular basis over their lifetime so that the tax payable more accurately reflects the amount of rent actually paid over the entire lease period.

What not to miss out when pursuing a fraudulent trading claim
Taylor Wessing
  • Insolvency & Restructuring
  • United Kingdom
  • February 23 2018

A liquidator recently applied for permission to amend his claim for fraudulent trading. The claim related to purported defrauding of Her Majesty's Revenue and Customs (HMRC) for non-payment of value added tax. Among other things, the judge held that whilst the costs order constituted loss to HMRC as a creditor, no valid claim in respect of costs was pleaded against the respondents and therefore there was no reasonably arguable case on the point.

Increased liability for managing directors – bow wave theory rejected by court
Clifford Chance Deutschland LLP
  • Insolvency & Restructuring
  • Germany
  • February 23 2018

German regulations obliging managing directors to monitor the liquidity of a company during crisis situations are typically strict and give rise to the risk of personal liability in cases of non-compliance. Legislation requires company management to file for insolvency proceedings without undue delay in the case of illiquidity or over-indebtedness. Continued trading where the company is considered to be materially insolvent can have serious consequences.

Federal Court of Appeal confirms 'half-loaf' plan is subject to GAAR
Thorsteinssons LLP
  • Corporate Tax
  • Canada
  • February 23 2018

The latest chapter in the story of the 'half-loaf' plan was recently penned by the Federal Court of Appeal. The case concerned a plan by which the taxpayer intended to split the capital gains on a share sale to an arm's-length purchaser between him and his wife and thus benefit from both of their lifetime capital gains exemptions. On appeal, the taxpayer argued that none of the conditions of the general anti-avoidance rule had been met; however, the Federal Court of Appeal disagreed.

New tax rules for dividends and capital gains realised by non-business individuals
Studio Legale Tributario Biscozzi Nobili
  • Corporate Tax
  • Italy
  • February 23 2018

The recently approved Budget Law has harmonised the taxation of dividends and capital gains earned by non-business individuals on substantial and non-substantial participation held in Italian and foreign companies, among other things. Companies and partnerships will be unaffected by these changes, as the distinction between substantial and non-substantial participation is irrelevant.

New OJK regulation on single presence policy
Ali Budiardjo, Nugroho, Reksodiputro
  • Banking
  • Indonesia
  • February 23 2018

The new Financial Services Authority Regulation on the Single Presence Policy in Indonesian Banking was issued in July 2017. The policy aims to ensure that a single entity does not simultaneously hold a controlling interest in more than one bank. Therefore, a controlling shareholder of more than one bank is required to merge or consolidate its controlled banks, establish a bank holding company or establish a holding function.

Modification of trade defence rules regarding non-market economy costs and prices
Herbert Smith Freehills LLP
  • International Trade
  • European Union
  • February 23 2018

The European Union recently issued Regulation 2321/2017, amending the basic EU Anti-dumping Regulation (1036/2016). Among other things, Regulation 2321/2017 sets out new rules for the calculation of normal value in the case of significant distortions that affect cost and price and removes rules which previously allowed for normal value to be determined via an analogue country methodology for non-market economy World Trade Organisation members.

How to handle assets in a client's estate
Ogier
  • Private Client & Offshore Services
  • Jersey
  • February 22 2018

Jersey is a separate legal jurisdiction from the United Kingdom, with a separate body of law. Many clients do not realise this, which can cause issues when it comes to administering their estates. The law of succession and probate in Jersey differs significantly from that in the United Kingdom and creates responsibilities for the executors and administrators of those who leave behind assets in Jersey.

The importance of trustee minutes
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • February 22 2018

In today's climate, in which professional trustees are held to increasingly high standards by regulators, courts and clients, it has never been more important for fiduciaries to record their decisions. A court's ruling may turn on the content of trustee minutes, and regulatory authorities are entitled to scrutinise all available evidence of a licensee's conduct in assessing its corporate governance and compliance with anti-money laundering and counter-terrorist financing legislation.

FECC launches project to develop guidelines for analysis of collaboration agreements between competitors
SAI Law & Economics
  • Competition & Antitrust
  • Mexico
  • February 22 2018

The Federal Economic Competition Commission (FECC) recently issued its Annual Working Plan. In it, the FECC recognised that one of its strategic goals is to communicate to economic agents how anti-competitive practices will be investigated and which actions agents may adopt to prevent potential risks. In particular, the FECC declared that one of its goals for 2017 would be to launch a project to develop guidelines for the analysis of collaboration agreements between competitors.

Arbitral award may be enforced after annulment at seat
Freshfields Bruckhaus Deringer LLP
  • Arbitration & ADR
  • Netherlands
  • February 22 2018

The Supreme Court recently ruled that a Dutch court may enforce an annulled arbitral award if, among other things, the local annulment decision is based on grounds other than those set out in Article V(1)(a)-(d) of the New York Convention and which are not internationally recognised, or the annulment decision is irreconcilable with Dutch private international law. This judgment offers important guidance as to the Dutch courts' discretion to enforce annulled awards.

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