Briefings

Banking and finance

Assessing creditworthiness in consumer credit: FCA publishes final rules and guidance

The results of a large-scale survey by the Financial Conduct Authority (FCA) in 2017 indicated, among other things, that: 75% of UK adults had one or more consumer credit products or loans in the previous 12 months; 4.1 million people were “in difficulty” because they had already failed to pay domestic bills or meet credit […]

Open Banking, fintech and the Brexit hokey cokey

By Miles Trower London is, arguably, the most important global hub for financial services. As a result, the consequences of the Brexit vote, the ensuing uncertainty and the eventual transitional and regulatory framework applying to UK financial services and how it will continue to access overseas markets has been subject to huge speculation. Much of […]

FCA consultation on a Global Financial Innovation Network

By Russell Kelsall On 7 August 2018, the Financial Conduct Authority (FCA) published a consultation on the creation of a Global Financial Innovation consultation. With innovation in the global financial services market rapidly increasing, it is important for firms to consider the options for building, implementing and sharing experiences of digital solutions.

Amendments to the Hungarian Data Protection Act

By Dorottya Gindl The Hungarian Parliament has recently adopted legislation with the aim of harmonising the national data protection rules with the rules of the GDPR, and supplementing the national rules in areas not regulated by the GDPR. The Parliament adopted Act XXXVIII of 2018 (“Amendment“) in an extraordinary session and the new regulations entered […]

Company and commercial

Austria: The DPA’s strict view on retention periods

At the end of July, the Austrian Data Protection Authority (‘DPA’) published its first decision on retention periods applying the General Data Protection Regulation (‘GDPR’; DSB-D216.471/0001-DSB/2018). The decision is final. The DPA had to decide for which period a provider of telecommunications services (hereinafter: the ‘controller’) may (respectively must) retain so-called master data, required for […]

Switzerland maintains its globally leading position in international arbitration

By Michael Feit Switzerland has a long-standing tradition to serve as the seat for international disputes. Thanks to its very arbitration friendly legal framework, and overall encouraging factors such as Switzerland’s neutrality, stability and business-friendly environment, Switzerland has remained a top choice for international arbitration for parties from all over the world…

CEE: Keeping track of data processing

By Gelu Maravela and Daniel Alexie Depending on the size of the operator, the frequency of processing activities, and the character of the data that is processed, keeping records of all processing activity should be deemed necessary for a considerable number of operators. From our point of view, only operators that process personal data in […]

Kazakhstan introduces new ‘Squeeze-Out’ mechanism for major shareholders

On 2 July 2018, Kazakhstan adopted the Law No. 166­VI “On amendments and changes to certain legislative acts of the Republic of Kazakhstan on Insurance and Insurance Activities, the Securities Market” (the “Law”). The Law entered into force on 15 July 2018 (with the exception of certain provisions, which will come into force later). Among […]

Competition and EU

Competition law & director disqualification

The UK’s Competition and Markets Authority (“CMA”) is consulting on proposed revisions to its current guidance on director disqualification in competition law cases (the “Current Guidance”). The consultation on the CMA’s proposed revised guidance (the “Draft Revised Guidance”) closes at 17:00 GMT on Thursday 13 September 2018, and follows the director disqualifications secured by the CMA […]

First decisions prohibiting concentrations issued in Bulgaria

On 19 July, 2018 the Bulgarian Commission for the Protection of Competition (the “CPC”) prohibited two concentrations. The first being the sale of the second largest media conglomerate in Bulgaria, Nova Broadcasting Group AD (“Nova Broadcasting”), (owner of Nova TV), to PPF Bidco, (owned by Czech businessman Petr Kellner), and secondly the sale of CEZ’s assets […]

CMA publishes final report on Heat Networks calling for new regulation

On 23 July 2018, the Competition and Markets Authority (CMA) published its final report in its market study into heat networks. The CMA conducted a comprehensive seven-month study to assess whether households are “getting a good deal” and found that new regulation is required in order to protect heat network customers in a similar way to existing […]

Beware of RPM: Commission issues fines for resale price-fixing

On 24 July 2018, the European Commission issued four decisions fining Asus, Philips, Denon & Marantz and Pioneer, for a total of €111m, for fixing or establishing minimum resale prices on online retailers, a commercial practice also known as resale price maintenance (RPM). According to the EC, such RPM practices restricted online retailers’ ability to […]

Corporate

Customs duties for certain goods originating from the United States are increased in Russia

On 23 March 2018, the United States of America introduced a special protective measure in the form of increased customs duties on imports for steel and aluminium products, including those originating from the Russian Federation. Pursuant to the World Trade Organisation (WTO) rules, a WTO member state affected by special protective measures shall have the […]

Brexit and the Jersey real estate market: implications, progress and outcomes

Last month, a long­awaited white paper setting out the “Chequers agreement” was finally released setting out the UK’s vision of its future relationship with the EU after Brexit. Although concentrating on movement of goods, with less focus on the services sector than hoped, I remain optimistic that, overall, Brexit will be a positive experience for […]

Structuring an ICO in the Cayman Islands

For businesses that have decided that they want to take the strategic decision to enter the digital age and conduct an initial coin offering (ICO), the next two questions are inevitable: one, from what jurisdiction should that business choose to launch and conduct its ICO and two, what suitable structure should be put in place […]

Kazakhstan and the Belt and Road

By Shaimerden Chikanayev Kazakhstan has high ambitions in China’s Belt and Road initiative, as it is geographically an ideal junction between China and the West and its interest in the Belt and Road is indisputable, with the Kazakh government already involved in Nurly Zhol (the Path of Light), a US$9 billion domestic economic stimulus plan […]

Employment

Employers: Capability procedures explained

By Michael Briggs This month, in our Breaking Down the Handbook series, we look at capability policies and why they are a useful tool for employers to have when it comes to dealing with poor performance…

Liable for violations by overseas subsidiaries

By Kieran Laird There have been several cases in recent years in which the courts have considered whether it is permissible to bring a tort claim against a UK parent company in relation to alleged human rights breaches by its overseas subsidiary. The Court of Appeal has again considered the issue in AAA & Ors. […]

Successful appeals cancels dismissal

By Russell Bailey In Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1689 the Court of Appeal gave clarification on the correct approach to a “fudged” appeal against a dismissal. Was there a dismissal or not?

Energy and environment

Angola: International comparative legal guide to project finance 2018

By Manuel Protásio and Vanusa Gomes Like other countries with a hydrocarbon-based economy, the Angolan economy depends largely on the offshore petroleum industry for 50% of its Gross Domestic Product and 70% of the country’s revenue, and has faced a severe economic setback attributed largely to the significant drop in oil prices in the international markets…

MEES: 1 April 2019 is the new deadline for domestic landlords

By Maria Connolly How much will domestic landlords need to spend on energy improvements? In December 2017, we reported on the consultation on the domestic aspects of MEES Regulations. At the end of July, the summary of responses to the consultation was released. 84% of respondents support a requirement for landlords to spend money in […]

Ukraine: Energy Digest July 2018

On 26 July 2018, Ukraine’s Cabinet of Ministers approved a roadmap to hold international auctions for the sale of special permits (licences) for hydrocarbon exploration and production. Preparation for the first international auction will start in September 2018, with the auction expected to be held in early 2019…

Boost for renewables development in Ireland – new government proposals

By Andrew Ryan The Irish Government has now confirmed its proposals for the next round of support for new renewables development in Ireland. Subject to EU State Aid approval, the Renewable Electricity Support Scheme (RESS) intends to deliver up to 12,000 GW/hrs of generation up to 2030 and contribute to Ireland’s targets under the EU […]

Funds

Asset management and investment funds update

On 30 July 2018, ESMA published its final report following its peer review of the compliance and supervisory framework of six national competent authorities (NCAs) with aspects of the UCITS framework for Efficient Portfolio Management (EPM). The review covered the NCAs for Ireland, the UK, Luxembourg, Germany, France and Estonia and was limited to assessment […]

Prevent disputes with pension providers about the implementation agreement

The Dutch pensions system has been under increasing stress since 2008. A sudden downturn on the financial markets and market interest rates held down artificially, together with rising life expectancy and strict solvency requirements, have produced some unpleasant financial surprises. So the question as to who is responsible or liable for the solvency shortfalls is […]

Pensions Ombudsman Update August 2018

By Sasha Butterworth Keep abreast of a selection of the latest determinations made by the Pensions Ombudsman. During the last quarter, the Pensions Ombudsman has handed down a number of noteworthy decisions, relevant for trustees and sponsoring employers of pension schemes, and their professional advisers. Our latest quarterly edition includes commentary on the following important […]

Luxembourg tax authorities issue guidance on tax aspects of virtual currencies

On 26 July 2018, the Luxembourg tax authorities published a circular on specific tax aspects of virtual currencies. As it does not consider virtual currencies to be an actual currency, the circular clarifies that Luxembourg tax accounts cannot be prepared and taxable income cannot be reported in a virtual currency…

Insolvency and restructuring

Insolvency officeholders’ duties: High Court guidance when assigning a claim

By James Forsyth The High Court has given guidance on the principles that insolvency officeholders should apply when deciding whether or not to assign a claim in LF2 Ltd v Supperstone [2018] EWHC 1776. This guidance does not create a binding precedent but does set out a helpful framework within which insolvency officeholders can consider a […]

Russia: Cancellation of duties for state registration of legal entities

Federal Law No. 234-FZ of July 29, 2013 amended the Tax Code of the Russian Federation providing for the cancellation of the state duties for state registration of: legal entity (currently the fee is 4 thousand rubles); changes to the constituent documents, as well as liquidation of the company’s legal entity outside the bankruptcy procedure […]

Insolvency officeholders’ duties: High Court guidance when assigning a claim

By James Forsyth The High Court has given guidance on the principles that insolvency officeholders should apply when deciding whether or not to assign a claim in LF2 Ltd v Supperstone [2018] EWHC 1776. This guidance does not create a binding precedent but does set out a helpful framework within which insolvency officeholders can consider a proposed […]

Insolvency Litigation July 2018

By Alex Jay, Ian Weatherall, Kanika Kitchlu­ Connolly, Turon Miah and Teresa Edwards In our update this month we take a look at some of the recent cases that will be of interest to those involved in insolvency litigation. These include: another decision which deals with an application for security for costs where the claimant was in liquidation; a […]

Insurance

Luxembourg perspective on forthcoming insurance distribution directive

Luxembourg counsel Eva Gyori-Toursel gave a recent interview to Delano in respect of the Insurance Distribution Directive that is set to come into force in October. The aim of the directive is to “regulate the way insurance products are designed and sold both by insurance intermediaries and directly by insurance undertakings,” and it sets down […]

PPI updates: Court case and FCA consultation

Walker Morris has reported previously on the Financial Conduct Authority’s (FCA) proposals for the handling of Payment Protection Insurance (PPI) complaints and for dealing with the so-called ‘Plevin problem’ (that is, the uncertainty following the Supreme Court’s decision that non-disclosure of a significant amount of PPI commission earned by a lender created unfairness in the lender/borrower […]

Intellectual Property

Owners can prevent de-branded parallel imports

By Charlie Bond and John Coldham The CJEU has held that the proprietor of a mark may take action against parallel importers of their products who remove all signs identical to their mark and replace them with other signs, without the consent of the trademark owner and with a view to importing and trading the products […]

PepsiCo Inc’s trademark opposition

Sarah Williams explains the IPO decision in a recent trademark dispute involving Pepsi. This article was first published in the June 2018 issue of the CITMA Review, the journal of the Chartered Institute of Trade Mark Attorneys (CITMA). For more information on CITMA, please visit citma.org.uk…

Intellectual property post Brexit: the UK’s proposals

By Jo Pritchard In July 2018 the government published its White Paper on the future relationship between the UK and the EU. The proposals aim to deliver a balance between seizing the opportunities of global trade and respecting the deeply integrated EU supply chains which have developed over the last 40 years. Only a limited number of […]

Isn’t Kit­Kat everyone’s favourite four­finger chocolate bar?

By Gary Assim Apparently not, according to the European Court of Justice (ECJ) today which made an important ruling with regards to Kit Kat’s famous shape. It said that in order for Nestle, the chocolate bar’s owner, to retain its trade mark for the shape (that is the four long bars on a rectangular base), […]

Litigation

FCA publishes evaluation of Guaranteed Asset Protection intervention

By Alanna Tregear The Financial Conduct Authority (the FCA) said, as part of its 2018/2019 Business Plan, it wished to investigate the effectiveness and impact of its interventions into certain markets and industries. The FCA intends to conduct three pilot evaluations, the first being an evaluation of the FCA’s September 2015 intervention into GAP insurance. […]

Privy Council upholds Court of Appeal ruling in long-running trusts dispute

The Privy Council’s judgment in the Zorin case was issued this week – the court upheld the verdict of the Court of Appeal of the Eastern Caribbean Supreme Court, which had found in favour of the family members that Ogier has been representing, alongside lawyers from Stephenson Harwood, for several years…

Can you contract out of the prevention principle?

By Michael O’Shea In the Court of Appeal (CA) decision in North Midland Building Ltd v Cyden Homes Ltd [2018], the TCC judgment at first instance has been unanimously upheld. The CA considered the extent to which parties are able to decide where the risk will lie if concurrent delay arises…

Pharmaceuticals and healthcare

Health Canada invites public comments on new regulations

By Ben Pearson The medical device industry in America and perceived shortcomings in the US Food and Drug Administration’s (“FDA”) approval process have recently come under scrutiny in popular media. An often­cited concern with the FDA’s approval process relates to the 510(k) pathway, whereby a medical device may reach the market with a lesser amount […]

Simplification of the procedure for state registration of medicines in Russia

On 17 May 2018, amendments to the Federal Law ‘On the Circulation of Medicines’ (hereinafter – the ‘Draft Law’), which simplify the procedure for registration of medicinal products for foreign manufacturers of medicines, were adopted in the third final reading. According to the amendments are aimed to shorten the terms for accessing by medicines the […]

Registration of medical devices in Russia: Recent changes

The Government of the Russian Federation by its Resolution No. 633, dated 31 May 2018 introduced changes to the Rules for the State Registration of Medical Devices approved by Resolution of the Government No. 1416, dated 27 December 2012 (hereinafter – the ‘Registration Rules’). The changes are aimed at reducing the timing of state registration […]

New support measures for manufacturers of medicinal products in Russia

Resolution of the Government of the Russian Federation No. 572 dated 12 May 2018 introduced amendments to Resolution No. 1289 dated 30 November 2015 that establishes restrictions and conditions for admission to the procurement for state and municipal need of medicinal products included in the list vital and essential medicines (VEM) originating from foreign states…

Private Client

Access to justice: Justice for the few

By Philippa Dolan So the outgoing President of the Family Division is throwing in the towel on access to justice, unless you have money. How depressing. There have been many straws in the wind – such as his enthusiasm for rolling out the online Family Court…

Excluding environmental liability in property transactions: let the buyer beware

The Court of Appeal in First Tower Trustees Ltd. and another v CDS (Superstores International) Ltd [2018] EWCA Civ 1396 has held that a landlord was not permitted to rely on a clause restricting its liability for representations, where it had misrepresented to a tenant in response to pre-contract enquiries that it had no knowledge of asbestos […]

Public sector and local authority

Can you contract out of the prevention principle

By Michael O’Shea In the Court of Appeal (CA) decision in North Midland Building Ltd v Cyden Homes Ltd [2018], the TCC judgment at first instance has been unanimously upheld. The CA considered the extent to which parties are able to decide where the risk will lie if concurrent delay arises…

Sao Tome and Principe: Public procurement 2018

The Regulation on Bids and Public Procurement (RBPP), approved by Law 8/2009 of 26 August 2009, is considered the key legislation regulating the award of public contracts in São Tomé and Príncipe. Also relevant is Decree-Law 20/2015 of 11 December 2015, which establishes the Regulation on the activities of Public and Private Contractors (the Regulation)…

VdA – Mozambique: Public procurement 2018

The law on the procedures for the award of public works contracts, supply of goods contracts and provision of services contracts (the Regulation on the Award of Public Contracts (RPC)), approved by Decree 5/2016 of 8 March, is considered the key legislation regulating the award of public contracts. It sets out the rules for the […]

Cape Verde: Public procurement 2018

By Raul Mota Cerveira and Ana Marta Castro There are two relevant pieces of legislation regarding the award of public contracts: the Public Procurement Code (PPC), approved by Law No. 88/VIII/2015 of 14 April 2015, and the Legal Regime of Administrative Contracts, approved by Decree-Law No. 50/2015 of 23 September 2015 (LRAC). The PPC establishes […]

Real Estate and Infrastructure

Longer term tenancies? Potential implications for lenders

Walker Morris’ Housing and Banking Litigation experts Karl Anders, Justin Coley and Sandip Singh explain the UK government’s consultation on introducing longer-term tenancies in the private rented sector, with a particular focus on potential impacts for lenders…

New provisions concerning critical infrastructure in Romania

By Irina Radu One of the major objectives of the EU is reducing the vulnerabilities of critical infrastructure and increasing their resilience. An adequate level of protection must be ensured and the harmful effects of disruptions on the society and citizens must be limited as far as possible. Critical infrastructures extend across many sectors of the […]

Property hijack fraud: new duty for conveyancers?

By Sam McCollum The Law Commission recommends introducing a new statutory duty on solicitors in property transactions. If the proposals are implemented, solicitors will owe a duty to HM Land Registry in respect of identity checks…

Technology, Media and Telecommunications

Telemedicine in Russia: Expectations and challenges

By Julianna Tabastajewa and Meldir Erbulekova The telemedicine market in Russia has been rapidly developing for the past few years. The advent of high-speed internet and advanced telecommunications has made telemedicine accessible across the country. Before State Duma approved a long-anticipated Bill on Telemedicine and Federal Law No. 242 FZ ‘On Amending Certain Legal Acts of […]

Data subject access requests: Court of Appeal guidance on ‘mixed data’ cases

Under data protection legislation, individuals have the right to access their personal data, to find out what data is held and how it is used. This right is exercised by making a data subject access request (or DSAR) to the data controller or processor (responsibility for complying with a DSAR lies with the controller). At a […]

How many filters does it take to get the London look?

By Anna Ní Uiginn Dublin­based beauty blogger Rosie Connolly has recently become the first online ‘influencer’ to have a complaint against her upheld by the ASAI. The advertisement to which the complaint related (the Advertisement) was featured on the official Facebook and Instagram profiles of both Rosie Connolly and Rimmel. It promoted Rimmel’s new ‘Lasting Finish […]

Artificial Intelligence in the Workplace (Part 3) – AI and gender equality

By Darran Brennan and Catherine O’Flynn In our Artificial Intelligence (AI) in the Workplace article series we are considering the potential positive impacts that AI could have on the workplace and the possible amendments required to Irish employment law to allow these to happen. In our opening article in the series we identified gender inequality […]

Tax

Changes to Entrepreneurs’ Relief: What do you need to know?

By Mark Braude A significant and welcome change to the Entrepreneurs’ Relief (ER) rules was announced in the Finance Bill 2019 last month. It is aimed at shareholders who would otherwise lose their entitlement to ER as a result of being diluted below the 5% required shareholding…

Canada takes next steps towards implementing the MLI

By Laura Gheorghiu  On May 28, 2018, Canada introduced Bill C‐82 ( “Bill “), which, if passed, will bring into force the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (” MLI”). The Bill passed the first reading in the House of Commons on June 20…

Bloomberg Tax Transfer Pricing Forum: Luxembourg – Summer 2018

As a means of increasing innovation and investment, a growing number of countries around the world have introduced preferential tax treatment for research and development and intellectual activities. These regimes provide developed countries with an economic advantage in a highly competitive international tax landscape. In 2015, the OECD released BEPS Action 5 on Harmful Tax […]

Kazakhstan: Multilateral convention to implement tax measures to prevent base erosion

By the end of June of this year, Kazakhstan signed the Multilateral convention to implement tax treaty-related measures to prevent base erosion and profit shifting (MLI). The MLI is designed under the OECD-lead effort to help countries counter tax avoidance and speed cross-border of transnational tax dispute resolution…

Transport (Including aviation and shipping)

Portugal: Shipping law review 2018

The shipping industry continues to be one of the most significant sectors worldwide, with the United Nations estimating that commercial shipping represents around US$380 billion in terms of global freight rates, amounting to about 5 per cent of global trade overall. More than 90 per cent of the world’s freight is still transported by sea. […]

Mozambique: Shipping law review 2018

The shipping industry continues to be one of the most significant sectors worldwide, with the United Nations estimating that commercial shipping represents around US$380 billion in terms of global freight rates, amounting to about 5 per cent of global trade overall. More than 90 per cent of the world’s freight is still transported by sea. […]

Angola: Shipping law review 2018

The shipping industry continues to be one of the most significant sectors worldwide, with the United Nations estimating that commercial shipping represents around US$380 billion in terms of global freight rates, amounting to about 5 per cent of global trade overall. More than 90 per cent of the world’s freight is still transported by sea. […]

Will all new cars be green by 2040?

By Maria Connolly The government has stated that its mission is to put the UK at the forefront of the design and manufacturing of zero emission vehicles, and for all new cars and vans to be effectively zero emission by 2040. The Road to Zero, released earlier this month, sets out the policies for achieving […]

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