Newsletter Search - International Law Office
Newsletter Search
ILO publishes a series of legal Newsletters which provide expert legal commentary in the form of concise, regular news updates. The Newsletters are written in collaboration with over 500 of the world's leading experts and cover more than 100 jurisdictions.
Jump to
Argentina
Aviation
The Federal Court of Appeals on Contentious and Administrative Matters recently modified the penalty imposed by the National Directorate of Internal Commerce on VRG Linhas Aereas. The court stated that whenever specific aviation legislation governs a fact under review, it will prevail over general or domestic legislation.
Austria
Competition
After a lengthy internal discussion process, the Ministry of Justice and the Ministry for Economic Affairs recently presented a draft bill for changes to the competition law in Austria. While fundamental changes to this draft bill are unlikely to occur, it remains to be seen how these amendments - if enacted - will affect administration, jurisdiction and advocacy for competition law in Austria.
Bahamas
Offshore Services
A new direction for the Trustee Act
The Trustee (Amendment) Act 2011 has strengthened the law relating to trusts and their administration by clarifying and expanding sections of the principal act and by making substantive amendments that have introduced new provisions. These innovative provisions show the Bahamas' continued commitment to provide for clients and reinforce its position as a leader in the area of private wealth management.
Belgium
Aviation
An apparently unremarkable Court of Cassation ruling, in a case relating to yachts and recreational boats, may have refined the concept of aviation insurance. The ruling could be interpreted as meaning that insurance which covers risks that are not clearly aviation risks, despite being related to aviation to some extent, are subject to the Land Insurance Act 1992, which is favourable to consumers and insureds.
Brazil
Competition
What to expect from CADE in 2012
The Administrative Council for Economic Defence (CADE) recently carried out an internal survey showing that a total of 892 merger cases were heard in 2011. According to CADE President Olavo Chinaglia, this impressive figure is a result of both the increasing number of notified cases, thanks to growth in the Brazilian economy, and the enhanced ability of CADE personnel to deal with the increasing workloads.
Environment
In recent years the discovery of new contaminated sites has become routine for Brazil's environmental agencies. The authorities have therefore established specific regulations that aim to address the clean-up and public disclosure of such sites, including an obligation to provide notice of contamination to the Land Registry Office. This is in line with both national and international environmental law.
Telecommunications
Brazil's telecommunications regulator (ANATEL) recently submitted to public consultation the draft bid notice for the 450 megahertz (MHz) and 2.5 gigahertz (GHz) radio frequency bands. The 450 MHz band auction aims to provide the lowest price to end users and the 2.5 GHz band bidding process aims to promote access to high-speed mobile broadband, using fourth-generation mobile technology.
British Virgin Islands
Company & Commercial
New regulations have come into force which govern the use of restricted company names in the British Virgin Islands. The BVI Financial Services Commission recently published an expanded list of restricted company names and introduced a non-refundable fee of $100 payable by persons wishing to apply to use a restricted name.
Offshore Services
New regulations have come into force which govern the use of restricted company names in the British Virgin Islands. The BVI Financial Services Commission recently published an expanded list of restricted company names and introduced a non-refundable fee of $100 payable by persons wishing to apply to use a restricted name.
Canada
Aviation
In Thibodeau v Air Canada Air Canada was ordered to take remedial measures after it was found to have violated the Official Languages Act when it failed to provide bilingual services in four instances. Air Canada applied to stay two of the remedial measures, pending the decision on the appeal. The Federal Court of Appeal granted the stay, using the three-part test found in RJR-MacDonald Inc v Canada (Attorney General).
Competition
The Competition Bureau will soon begin publishing a Merger Register on its website that will disclose certain information about transactions that are subject to the pre-merger notification obligations contained in the Competition Act. Designed to increase transparency levels at the bureau, the register is not without controversy.
Franchising
TA & K Enterprises Inc v Suncor Energy Products Inc concerned the application of the exemption in the Arthur Wishart Act whereby a franchisor is not required to deliver a disclosure document in circumstances if the franchise agreement is not valid for more than one year and does not involve the payment of a non-refundable franchise fee. The decision has now been confirmed on appeal.
Cayman Islands
Offshore Services
Last year the Cayman Islands government announced a proposal to require registration of new and existing master funds in a traditional master-feeder structure. The Legislative Assembly passed the relevant legislation at the end of 2011. Closed-ended funds and master funds that do not have Cayman Islands regulated feeder funds investing in them are not subject to the new registration requirements.
China
Aviation
China signed the Cape Town Convention and protocols in 2001, but it was not until 2009 that the Civil Aviation Administration of China issued rules for the recordation of irrevocable deregistration and export request authorisations (IDERAs) and the deregistration of aircraft by IDERA holders. Chinese airlines and their foreign creditors should be aware of the application process and the documents required.
Competition
The Provisional Measures on Investigating and Penalising Violation of Notification Obligations for Concentrations of Undertakings have entered into force. The maximum fine under the provisional measures is tiny compared with the thresholds under the US and EU competition regimes, but the 'reputational' penalty in Article 15 may prove far more significant to enterprises in China.
Intellectual Property
The Shanghai Pudong District People's Court has held that four companies infringed Levi Strauss & Co's 'double-arc' mark by using a similar stitching on jeans. The defendants contended that the stitching was merely decoration, but the court held that Levi Strauss's use - in combination with its registered LEVI'S trademark, on the jeans as a whole - had created a link between sign and products in the minds of consumers.
Cyprus
Litigation
The critical role that letters of credit have played in the growth of international trade is widely acknowledged and there is extensive case law on the subject. In one such case, the Cyprus courts recently refused to issue an injunction forbidding a bank to make payment under a letter of credit. The decision reaffirms the courts' reluctance to interfere with the performance by a bank of a letter of credit unless fraud is involved.
Denmark
Employment & Labour
The Supreme Court recently ruled that an employer's decision not to offer a temporary employee continued employment when her fixed-term contract expired did not fall under the rules regarding dismissal set forth in the Equal Treatment Act. However, the court found that the employer had expressed the view that that the employee could not be offered permanent employment due to her pregnancy.
European Union
Competition
The European Commission has adopted its decision prohibiting the $10.2 billion merger between Deutsche Börse and NYSE Euronext. The decision is notable not least because it is rare for the commission to block a merger. Of the 4,857 merger transactions that have been notified under the EU merger control regime since its inception in 1990, only 21 have been blocked.
The European Commission's Directorate General for Competition provides a leniency notice for companies wishing to whistleblow in relation to EU law infringements. Most national competition authorities within the European Union have similar procedural rules in relation to relevant national competition law regimes. Can this cause confusion over who has jurisdiction concerning cartels involving similar products and practices?
Finland
Shipping & Transport
The new Water Act is welcome news for the shipping industry, as it clarifies the confusing and uncertain situation whereby, in certain circumstances, two conflicting legal regimes may determine a shipowner's non-contractual liability. The act has corrected this situation by eliminating a shipowner's strict liability. Since the beginning of the year, the legal basis for shipowners' liability has been unambiguous.
France
Competition
A company involved in a cartel in the mass-market laundry detergent distribution sector blew the whistle to the Competition Authority in order to benefit from the leniency procedure under the Commercial Code. Subsequently, the three other cartel members also made an application for leniency which revealed the existence of a complex and continuous agreement.
Employment & Labour
A worrying new case law trend is exposing companies to a higher risk of litigation when implementing reorganisation processes in France, especially where the reorganisation plan involves a headcount reduction. In such cases the lack of a genuine economic motive can lead to the entire restructuring process being deemed null and void.
Media & Entertainment
SACEM (the French collecting society for authors and composers) and Creative Commons have signed an agreement which establishes a new pilot project to be conducted for an 18-month trial period. Artists can now benefit from SACEM remuneration for the commercial exploitation of their creations while also – if they choose – promoting their works in a non-commercial environment. The agreement allows SACEM members to promote their work in a non-commercial environment for the first time.
Germany
Company & Commercial
Letters of comfort under company law
When preparing a letter of comfort, the parent company must take care to limit its liability as far as possible. However, the more that the parent company reduces its liability, the less that the letter of comfort is suitable to provide comfort and prevent insolvency. As the parent company will be responsible for all uncovered debts, it should check thoroughly its subsidiary's financial position when issuing the letter of comfort.
Employment & Labour
The Federal Labour Court's recent CGZP decision has already had a considerable impact on Germany's temporary work sector. Among other things, social security associations made substantial claims against employee leasing companies for back-payments of social security contributions. Companies which engage leased employees would be well advised to review applicable contracts with the leasing companies.
Environment
The German government was required to transpose the EU Carbon Capture and Storage Directive into national law . However, the fate of the resulting act on carbon capture and storage is still uncertain. The crucial subject of discussion is the so-called 'exit clause'. Nevertheless, the fact that talks are continuing seems to indicate a general willingness for compromise among the parties involved.
Information Technology
Social plug-ins are increasingly coming under pressure as several German data protection authorities have expressed their concern about compliance with German data protection and media laws. In case of non-compliance, administrative fines of up to €50,000 may be imposed. According to press reports, first-public providers have already followed this request and taken down social plug-ins from their sites.
Greece
Intellectual Property
An applicant sought to extend to Greece an international trademark for a set of four digits in a straight horizontal line that it used as a secondary distinctive mark. The Trademarks Commission dismissed the application because of an alleged lack of distinctiveness. This judgment illustrates the reluctance of the Greek courts to acknowledge the inherent distinctive power of abstract signs that do not comprise further elements.
Hong Kong
Insurance & Reinsurance
A recent judgment has confirmed that the customary practice of insurance brokers receiving commission from insurers is not contrary to Section 9 of the Prevention of Bribery Ordinance, provided that the commission is not in excess of the normal level of commission paid in the insurance market and the broker had made disclosure to its client.
Ireland
Insolvency & Restructuring
The Irish government has published in draft form its Personal Insolvency Bill, to which it gave a commitment under the EU/International Monetary Fund Programme of Financial Support for Ireland. The bill is to modernise the bankruptcy of individuals and to provide for non-judicial debt settlement systems. The final form of much-needed legislation for indebted individuals is awaited.
Litigation
Cost implications and offers to settle
A party that believes that it may have liability in respect of proceedings can take steps to protect itself against a costs award that might be made against it. One option is to make a Calderbank offer to settle, which the court can take into account when considering costs. A recent case has demonstrated how offers to settle – or Calderbank letters – can have cost implications where they are unreasonably refused.
Italy
Company & Commercial
The government has approved economic liberalisation measures that make it easier for consumers to bring class actions. The new decree also grants the Competition Authority additional powers in respect of standard business-to-consumer contracts and extends the application of certain consumer protection provisions to microenterprises.
Employment & Labour
The Supreme Court has confirmed a well-established rule of case law, holding that the dismissal of an executive without notice is wrongful if the employer does not issue a reprimand letter and provide for a period in which the individual can respond in his or her defence.
Media & Entertainment
In January 2012 the grounding of the cruise ship Costa Concordia attracted intense media interest in Italy and abroad. Several issues have arisen in connection with a documentary that includes footage filmed by those onboard and a recording of a telephone call between the captain and the coastguard. Moreover, the incident is the subject of a criminal investigation and legal actions by many of the survivors.
Japan
Employment & Labour
A new official notice from the Ministry of Health, Labour and Welfare provides a definition of workplace bullying. As well as physical and verbal attacks, it identifies other examples of bullying activity, including isolation and invasion of privacy. Although the notice uses the term 'power harassment' in reference to bullying, this does not imply that such actions are inflicted by an organisational superior.
Insolvency & Restructuring
Settlement of mortgage as gratuitous act
A Tokyo District Court decision is a useful example of the application of the avoidance rules in the context of group company financing. In this case, a debtor company had settled a mortgage for a financing company as the real gurantor of its parent company, and the parent company had provided no consideration to the debtor company in the settlement.
Jersey
Offshore Services
The Jersey court recently considered whether excluding someone irrevocably from benefiting from trust assets means just that, even if there were no error involved in the exclusion. The court's ruling again demonstrates the willingness of the court (while still testing applicants and requiring them to meet the relevant legal criteria) to exercise its jurisdiction in a commercial and pragmatic manner.
Kosovo
Company & Commercial
Since September 2011, accounting, financial reporting requirements, audit requirements, qualifications for professional accountants, licensing of individual auditors and audit firms in Kosovo have been governed by new legislation. The new law has also established the Financial Reporting Council – a body that is similar to the Board on Standards for Financial Reporting.
Luxembourg
Corporate Tax
Luxembourg's leading position in online commerce has been reinforced by the decision to cut the rate of value added tax (VAT) on e-books to 3%. The decision reflects a view at EU level that similar goods and services should be subject to the same VAT rate, and that progress in technology should be taken into account in this respect.
Litigation
The Lower Administrative Court has rendered a debatable first decision regarding a request for exchange of information under the Law of March 31 2010, which introduced certain Organisation of Economic Cooperation and Development standards into Luxembourg tax law.
Malaysia
Litigation
A recent High Court decision sounds a warning to insurance companies in respect of their duty to provide full disclosure when signing up policy holders to an insurance product. The case draws into sharp focus the care, responsibility and professionalism expected of insurance agents, especially when selling insurance products to long-term friends, as occurred here.
Netherlands
Intellectual Property
The Dutch Supreme Court recently referred questions to the European Court of Justice for a preliminary ruling on the interpretation of the absolute grounds for refusal of trademark protection for signs which consist exclusively of "the shape which gives substantial value to the goods" under Article 3(1)(e)(iii) of the EU Trademark Directive.
Shipping & Transport
Any vessel – whether inland waterway or sea-going, Dutch-flagged or foreign-flagged – can be auctioned in the Netherlands through a private sale as a means to enforce a mortgage, provided that the mortgagee makes an application to the court for the sale. A court-approved private sale has all the 'washing clean' effects of an auction, but the formalities which the law requires for an auction must also be fulfilled.
Norway
Intellectual Property
Two recent decisions of the European Court of Justice have initiated a new practice in Norway related to supplementary protection certificates (SPCs) for medicinal products containing a combination of active ingredients – so-called 'combination products'. An SPC increases the duration of protection for certain patented products, extending the patentee's monopoly in respect of that product.
Shipping & Transport
To meet the increasing threat from pirates operating in the Gulf of Aden and the Indian Ocean, Norway has adopted new rules applicable to Norwegian registered ships and drilling units. The rules set out when force can be used in self defence, and allow the use of armed guards and firearms on board ships and units when they are operating in certain geographic areas.
Poland
Competition
The Competition Authority has fined a leading insurer, Powszechny Zakład Ubezpieczeń SA (PZU), and insurance broker Maximus for alleged market collusion. PZU descibed the fine imposed on it as "staggering". While recent authority decisions reinforce the trend to impose strict fines, there is also a marked tendency by Polish courts to verify in much closer detail whether such high fines are justified.
Russia
Corporate Tax
The recently signed tax treaty between Russia and the United Arab Emirates is unusual because it is not based on the Organisation for Economic Cooperation and Development's Model Tax Convention. Its tax benefits will apply only between public entities in the two countries. However, it may prove fiscally advantageous for private entities as well.
South Africa
Competition
Apollo Tyres to pay R45 million penalty
The Competition Commission has announced that it has entered into a settlement agreement with Apollo Tyres South Africa, in which Apollo admitted that it took part in a tyre manufacturers' cartel and agreed to pay a penalty of R45 million. Apollo admitted that it was involved in cartel conduct, whereby the main South African tyre manufacturers agreed on pricing and price increases.
More fines imposed in grain storage case
The Competition Tribunal has confirmed settlement agreements between the Competition Commission and seven firms for their involvement in cartel conduct in the grain storage and trading industry. The case involves the commission's price-fixing complaint referral against 17 respondents involved in the industry.
Employment & Labour
The Constitutional Court judgment in Aviation Union of South Africa v South African Airways (Pty) Limited has become available. The court found that Section 197 of the Labour Relations Act indeed applies to second-generation outsourcing, and that Section 197 will be applicable as long as a business is being transferred "as a going concern" from an old employer to a new employer.
Spain
Capital Markets
As a result of the ongoing Eurozone sovereign debt crisis, and in accordance with recent European Council measures intended to reinforce the equity of large credit institutions and to give such institutions easier access to medium and long-term financing, the Spanish government has passed a law which establishes a programme that guarantees credit institutions' debt issues by up to €100 billion.
Switzerland
Competition
The Competition Commission has prohibited several undertakings active in the luxury cosmetics sector from exchanging information on prices, turnovers, advertising expenses and sales terms. The commission held that the information exchange between the undertakings infringed the Competition Act because it allowed the participants to adjust their market behaviour to one another.
Corporate Finance/M&A
It appears that the Takeover Board will no longer review opt-out clauses in instances where the shareholders have been fully informed and made aware of the consequences and implications of the introduction of such clauses. This is rather astonishing, especially since in the last reform of the Securities and Stock Exchange Act, the legislature intended to substantially strengthen the position of minority shareholders.
Ukraine
Corporate Finance/M&A
A streamlined approach to official approvals could raise €2 billion in direct investment in 2012. InvestUkraine, a special division of the State Agency for Investment and National Projects, is already providing services to investors – including arranging informational, analytical and legal services – and providing support through contacts with local state authorities.
Changes to approvals process for M&A deals
A new law provides that a legal entity or individual must obtain written consent from the National Securities and Stock Market Commission for plans to acquire a significant share of the equity in a financial institution or to increase such a share, directly or indirectly, so as to hold or control 10%, 25%, 50% or 75% of the authorised charter capital of the institution.
Employment & Labour
The Cabinet of Ministers has approved a resolution which amends the state system to support the creation of jobs for disabled workers. Under the new procedure, subsidy funds will be submitted not only to accommodate workers in existing positions, but also to create new roles for people with disabilities.
Litigation
A recently introduced law allows the court to grant interim measures in proceedings for recognition and enforcement of a foreign court judgment. Such measures may be issued at any stage of proceedings if not to do so could make enforcement complicated or impossible. However, Parliament voted down proposals that would have provided for enforcement of interim relief granted by arbitral tribunals.
United Kingdom
Employment & Labour
Following a recent Supreme Court ruling, employees who live in Britain and commute to work abroad may have unfair dismissal rights in Britain, particularly if the employment contract is governed by British employment law and the employee has been reassured that he or she will retain British employment law rights.
A recent decision could form the basis of an appeal challenging the concept of 'establishment' for the purposes of the collective redundancy threshold. A successful appeal could mean that the duty to inform and consult applies to more multi-site employer redundancies.
Insurance & Reinsurance
High Court considers apportionment issues
A recent case appears to be the first in which an argument has been run for apportionment in the context of a non-marine, non-property insurance policy. The judge did not rule out the possibility of apportionment for mitigation costs, depending on the policy wording, and appeared to suggest that the words 'solely' or 'exclusively' might have supported a conclusion that there should be apportionment.
USA
Arbitration
The US Court of Appeals for the Second Circuit recently relied on the forum non conveniens doctrine to dismiss an action to confirm a foreign arbitral award under the New York Convention and the Panama Convention. The decision is significant not only because it relied on forum non conveniens, but also because its basis for doing so was in an internal Peruvian law.
Aviation
A New York court has reaffirmed the enforceability of liquidated damages clauses for holdover rent in aircraft leases that are in addition to damages for failure to comply with return conditions. Such clauses will be upheld if the fixed amount is a reasonable measure of the probable actual damages incurred in the event of a breach and the actual loss is impossible or difficult to determine with precision at the time of lease execution.
Corporate Finance/M&A
According to the Federal Aviation Administration, the commercial air carrier industry will grow by a remarkable 3.7% over the next five years. With a relatively broad range of available assets, certain tax benefits and other favourable characteristics, the aircraft finance market provides numerous advantages for private equity funds seeking new investment vehicles.
To register to receive the free newsletters via email click here.
If you are interested in writing for ILO, please contact Edward Costelloe at ecostelloe@internationallawoffice.com.
