Briefings

Banking and finance

Currency, cost calculations and contractual clarity

Walker Morris’ Head of Commercial Dispute Resolution, Gwendoline Davies, highlights the importance of dealing comprehensively and clearly with matters of currency and calculation in cross-border contracts…

Initial coin offerings in Jersey – regulatory guidance issued

By Sara Johns Following recent growth in initial coin offerings (ICOs), the Jersey Financial Services Commission (the Commission) has issued a guidance note setting out certain minimum standards and requirements in respect of ICOs. The guidance note is a measured and pragmatic clarification of the Commission’s approach to, and expectations of, Jersey companies issuing tokens/coins […]

Why Islamic finance fits well in Kazakhstan

Since 1991, Kazakhstan, Central Asia’s largest economy and oil producer, has had to rely on the deteriorating infrastructure it inherited from the Soviet Union. As a result, nearly every piece of public infrastructure (eg roads, hospitals, power plants, kindergartens, sewerages) in Kazakhstan requires a different degree of upgrading or expansion…

Short shrift for party litigant in Scotland

The Court of Session in Scotland has followed the example of the Supreme Court, giving short shrift to a party litigant (or, ‘litigant in person’ in England and Wales) in his legal proceedings against his bank. Walker Morris’ Banking & Finance Litigation partner Rob Aberdein explains.

Company and commercial

The Commercial Agents Regulations: a step behind the times?

By Alex Williamson The Commercial Agents (Council Directive) Regulations 1993 (the Regulations) are 25 years old this year. An evaluation by the European Commission concluded in 2015 that the underlying Commercial Agents Directive (the Directive) still met its objectives and functioned well. However, a recent Court of Appeal decision has shown that the legislation is struggling to […]

Belgian draft Trade Secrets Act: opportunities for the life sciences sector

On 8 June 2016, the EU Trade Secrets Directive was adopted. The main purpose of the Directive was to harmonise and enhance the protection of trade secrets EU-wide and to thus create an innovation-friendly environment for businesses. The EU Member States had to implement this Directive by 9 June 2018. Belgium missed the deadline, but […]

Supreme Court upholds ‘no oral variation’ clause

By Emma Davies The Supreme Court’s recent decision in Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24 upheld the validity of a clause that limited the parties’ freedom to vary their contract orally. In reversing the Court of Appeal’s decision to find the ‘no oral variation’ or ‘no oral modification (NOM)’ clause binding, […]

Merger control: Guidance paper on new transaction value thresholds in Austria and Germany

In the second half of 2017 both Austria and Germany introduced transaction value based thresholds as alternatives to purely turnover based thresholds that trigger the obligation to obtain merger control approval. The Austrian test pursuant to section 9 (4) Austrian Cartel Act (“ACA”) requires, amongst others, the consideration for a transaction to exceed EUR 200 […]

Competition and EU

Hungary: Influencers have been targeted by the HCA, but what about buying followers?

Society is undergoing a new industrial revolution – with the global development of the Internet, life has changed radically in just a few decades, and legislation can barely keep up with adapting to a situation that was previously unimaginable. The Hungarian Competition Authority (HCA) has also been monitoring developments and it has not been afraid […]

Court of Appeal allows Sainsbury’s appeal

In a landmark judgment on private actions for damages for infringement of competition law, the Court of Appeal has clarified the law in this field, reconciling considerable differences in the approach taken to multilateral interchange fees in cases before the Competition Appeal Tribunal and Commercial Courts. On the central question in issue, the Court allowed […]

India: Supreme Court clarifies NCLAT’s powers in appeal

On 18 May 2018, in M/s B Himmatlal Agrawal (Appellant) v Competition Commission of India (CCI) and Anr. [Civil Appeal No. 5029 of 2018], the Supreme Court of India (Supreme Court) distinguished the decision of the National Company Law Appellate Tribunal (NCLAT) while disposing of a statutory appeal under the Competition Act, 2002 (Competition Act). […]

Corporate

Canada: the Nice classification in the age of globalisation

By Kimberley Baillie According to the Director-General of the World Intellectual Property Office, the major challenge of the Committee is that as the globalisation of the marketplace increases, so too does the diverse range of goods and services which we must try and fit into the Nice Classification system. He noted that the fast pace […]

Portugal: The Government Procurement Review

Trends and developments that have caught our eye include: a pendulum swing towards deregulation in the United States on the back of President Donald Trump’s drive to reduce regulation; the possible renegotiation of NAFTA, including the incorporation of anti-corruption provisions (Mexico and Canada); a desire to open up procurement to SMEs and use public procurement […]

A legal guide to doing business in the UK

Changes to legislation both domestically and internationally can cause businesses to consider the location of their operations and where costs could be saved. When considering an operation outside of your usual jurisdiction, it is important to also think about how that new location affects you legally and what advice you may need to take. Some […]

Employment

Changes in Serbian employment legislation 2018

The beginning of the summer brought amendments to several employment­related laws. The most notable changes are presented below: The Law on the Employment of Foreigners The Law on the Conditions for the Secondment of Employees on Temporary Work Abroad The Law on Financial Support to Families with Children The Law on the Peaceful Resolution of […]

National minimum wage and ‘sleep-in’ shifts

By Connie Cliff and Martin Chitty Treatment of “sleep­in” shifts for national minimum wage (NMW) purposes is an area that can often cause confusion. Where a worker is required to work a number of sleep­in night shifts at the employer’s premises, and be available in case of an emergency, does the full night shift constitute ‘working’ […]

AI, used correctly, can help solve some of our most pressing employment law issues

By Darran Brennan The World Economic Forum has defined Artificial Intelligence (AI) as an element of the fourth industrial revolution (4IR) and something which will change our world and workplaces. This is similar to the changes envisaged during the previous industrial revolutions (let’s not forget the fears of the Luddites) but what is different now […]

Energy and environment

Draft legislative proposal introduces a minimum price for CO2

The Dutch government has published a draft legislative proposal for consultation that introduces a minimum price for CO2. The minimum price is introduced by way of a tax levied on electricity producers. The tax is levied per ton of CO2 emission. In the proposal, the tax rate per ton CO2 is calculated each year as […]

From cap and trade to white pines: what lies ahead in Ontario’s energy sector

During the run-up to the recent Ontario election, Doug Ford’s Ontario PC Party released its policy platform “For the People: A Plan for Ontario.” The PC Party’s stated plans for Ontario’s energy sector contained several broadly worded promises of keen interest to Ontario’s electricity generation sector: they would repeal the Green Energy Act, cancel energy […]

Ukraine: Energy digest for June 2018

On 7 June 2018, the draft law “On Ensuring Competitive Terms of Production of Electricity from Renewable Sources” No. 8449 (“Draft Law 8449”) was registered with Ukraine’s parliament. As of 4 July 2018, seven alternative draft laws (Nos. 8449­1 – 8449­7) have also been registered with parliament (“Alternative Drafts”). Five of the seven Alternative Drafts […]

Funds

Clarity on Russian cryptocurrency and crowdfunding

By Meldir Erbulekova and Yulia Yarnykh From Russian rapper Basta launching his own cryptocurrency in December 2017 to top businesses exploring initial coin offerings (ICOs) and other alternative funding models, the Russian market is investing rapidly in blockchain technology and fintech…

Two EU regulations on UCITS/AIFMD asset segregation requirements for depositaries upon delegation

On 12 July 2018, the European Commission adopted two delegated regulations supplementing the Alternative Investment Fund Managers Directive (AIFMD) and the Undertaking for Collective Investment in Transferable Securities Directive (UCITS) on the safekeeping of assets by depositaries and their delegates. Their main purpose is to eliminate discrepancies among different national regulations. The following aspects will […]

Insolvency and restructuring

Tenant insolvency: When and how can a landlord draw down on a rent deposit?

By Philip Collis Dubbed “the year of the CVA”, 2018 has so far seen a spate of high-profile retail insolvencies. Landlords are seeking to protect their position in this volatile climate. The rules governing the actions landlords can take in insolvency situations are complex. They depend on whether the tenant is a company or individual, […]

Cayman Islands: Appointing receivers in aid of equitable execution

A recent decision of the Cayman Islands Grand Court in Y v R (9 January 2018) has confirmed the applicable principles concerning the appointment of receivers to aid enforcement of a Cayman Islands’ judgment. Equitable execution is a means of enforcing judgment debts where other methods of enforcement are not possible or have not been […]

India: Second ordinance to amend the Insolvency and Bankruptcy Code

The President of India promulgated the Insolvency and Bankruptcy Code (Amendment) Ordinance 2018 on 6 June 2018 (Ordinance) to amend the Insolvency and Bankruptcy Code 2016 (IBC). In the short history of around one and half years since the provisions relating to corporate insolvency resolution process under IBC came into force in December 2016, the […]

Restructuring and insolvency in Luxembourg: overview

A Q&A guide to restructuring and insolvency law in Luxembourg. The Q&A gives a high-level overview of the most common forms of security granted over immovable and movable property; creditors’ and shareholders’ ranking on a company’s insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue […]

Insurance

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 […]

The importance of getting an indemnity right

By Ciaran Noonan Indemnities are often one of the most heavily negotiated terms in a commercial agreement, but for non-lawyers their perceived advantages may not always be clear. In this short article Goodman Derrick sets out how indemnities may vary normal contractual rules, and why it is vital to draft indemnities clearly and precisely…

Intellectual Property

Russia’s enduring love for fake luxury and legal action to take

By David Aylen and Elizaveta Osipchuk When reputable social media platforms are involved, rights holders should contact the social media company first and ask it to remove the account. Fortunately, such companies usually collaborate with brand owners as much as possible and take swift measures to block infringing content (usually within three to five days). However, […]

Priority rights in Turkish law

According to the Industrial Property Law, which entered into force on 10 January 2017, an enterprise of goods or services ensure distinguishing from or service goods other undertakings and brand owners to ensure protection of the subject it is turned on and including the names of persons, provided that shown on the register can provide […]

Industrial strategy: government proposals to use IP to stimulate innovation

By Jo Pritchard The government has recently published the outcome of its consultation on maximising the incentives of the IP (intellectual property) system to stimulate collaborative innovation and licensing opportunities. The call for views was one of a number of initiatives on IP announced by the government as part of its Industrial Strategy in November 2017.   Views […]

Russian patents: Rospatent fee-based extradited examination

By Maria Aronikova On October 5 2017 the Russian Patent and Trademark Office (Rospatent) officially announced that expedited examination will be available for all applications. Rospatent had abrogated its former expedited examination practice in 2012. Since then, patent law has allowed accelerated examination through the Patent Prosecution Highway (PPH) system…

Litigation

Supreme Court of Canada: The mid-year review

By D. Lynne Watt Given the popularity of our annual SCC Year in Review article, we thought we would provide a mid­year update to check in on what the Court has been doing so far this year and what we can expect for the balance of the year…

EU: Your web doctor will see you now – software as a medical device

Patients nowadays have access to an enormous range of medical knowledge through social media, websites and health apps (in combination with wearables). The latter have become increasingly popular in recent years because of their ability to monitor in real time pulse, blood pressure, blood glucose levels and other parameters. Doctors are also intrigued by the […]

Extortion, blackmail, and kidnap for ransom

In this market insight, originally written for CampdenFB, Schillings’ extortion, blackmail and kidnap for ransom specialists, John Chase and Brittany Damora, set out the scope of the threat and what steps family offices and family businesses need to take when faced with this type of critical risk scenario…

The Court of Protection endorses use of the Mental Capacity Act

By Michael Mylonas QC The requirement for written consent in schedule 3 of the Human Fertilisation and Embryology Act has caused difficulties in some notable cases. Last week saw another challenge in which Mrs P needed the consent of her husband who had suffered an irreversible brain injury. She turned to the Mental Capacity Act 2005…

Pharmaceuticals and healthcare

Sleeping time is not working time says Court of Appeal

By Siobhan Fitzgerald The social care sector is breathing a sigh of relief after the Court of Appeal in Royal Mencap Society v Tomlinson-Blake reversed previous cases and decided that only time spent awake and working should be counted as working time for the purposes of calculating the national minimum wage.

Amendment of the Code of Conduct for Pharmaceutical Advertising

The Code of Conduct for Pharmaceutical Advertising (Code of Conduct) (In Dutch: Gedragscode Geneesmiddelenreclame) has been amended as of 1 July, 2018. The changes come as a response to the amendments to the policy rules providing guidance on the ban of inducements regarding medicinal products, which entered into force 1 April, 2018 (Policy Rules) (In Dutch: Beleidsregels gunstbetoon Geneesmiddelenwet […]

Amendment of the code of conduct for pharmaceutical advertising

The Code of Conduct for Pharmaceutical Advertising (Code of Conduct) (In Dutch: Gedragscode Geneesmiddelenreclame) has been amended as of 1 July, 2018. The changes come as a response to the amendments to the policy rules providing guidance on the ban of inducements regarding medicinal products, which entered into force 1 April, 2018 (Policy Rules) (In Dutch: Beleidsregels gunstbetoon Geneesmiddelenwet […]

Material contribution in acute hypoxic ischaemia

By John de Bono QC There is no doubt that since the decision in Bailey v MoD the claimant’s task in proving causation has become significantly easier because she no longer needs to prove that her condition is worse than it would have been ‘but for’ the defendant’s breach of duty. There are cases where […]

Private Client

Court of Appeal: Catja Thum v Oliver Thum

The Court of Appeal today dismissed Oliver Thum’s appeal and ruled that his wife Catja Thum’s divorce and related financial claims should proceed in the English court and not, as Dr Thum had argued, in Berlin. Giving judgment for the Court of Appeal Lord Justice Moylan said…

The BVI extends visa exemption to PRC nationals

By Robert J.D. Briant and Christopher W.H. Bickley The British Virgin Islands (“BVI”) Government has enacted a measure which exempts nationals of the People’s Republic of China from the need to apply for a visa to visit the BVI for up to six months for business or tourism purposes. The Order dated 5 July 2018 […]

Inheritance tax:­ time to think again?

In 1726, Daniel Defoe published a satirical portrayal of the devil’s achievements up to that time. In encouraging the notion that he had a cloven foot, Satan had become so successful in the popular imagination that there was nothing: “not the Man in the Moon, not the Groaning­Board, not the speaking of Fryar Bacon’s Brazen […]

‘Bolam is dead, long live Bolam’

By Dr Simon Fox QC As a doctor transferring from medicine to law 25 years ago, I was struck by the illogicality of the Bolam test, in that it seemed to me that it couldn’t logically be applied to many circumstances of medical negligence…

Public sector and local authority

Are planning fees refundable where an extension of time has been agreed?

By Katherine Evans An applicant was not entitled to a refund of a planning fee where it had agreed with the local planning authority (LPA) that the period for determining the application was to be extended, and the LPA failed to determine the application within the extended period. That was the decision of the High […]

Business immigration in Switzerland

By Ueli Sommer, Philippe Nordmann and Simone Wetzstein This Q&A gives an overview of the key factors affecting business immigration, including information on the jurisdiction’s sources of immigration law; relevant government entities; requirements for unsponsored and sponsored immigration; requirements for sponsors; civil and criminal penalties for sponsors; common issues and concerns; dependants; settlement and citizenship; recent trends and proposals […]

Public Sector Equality Duty and planning permission

By Toni Weston and Stephen Sellers On 20 June, the Administrative Court quashed the grant of outline planning permission for the development of part of the Foxhill Estate by the demolition of up to 542 dwellings and the provision of up to 700 dwellings. This decision was based on the grounds that the local planning authority, […]

Japanese knotweed is a nuisance, Court of Appeal rules

By Katherine Evans The presence of Japanese knotweed could result in nuisance claims from adjoining landowners, the Court of Appeal has confirmed. The case of Network Rail Infrastructure Limited v Stephen Williams and Robin Waistell 2018] EWCA Civ 1514 concerned the encroachment of Japanese knotweed, which was present on Network Rail’s adjoining land, onto the claimants’ properties. The […]

Real Estate and Infrastructure

Portugal: changes to the rules on nationality

Organic Law No. 2/2018 establishes that the children of foreigners born in Portuguese territory (when the parents are not in the service of their home state), are considered Portuguese by origin, provided that one of the parents has been residing legally in Portugal for at least two years. This contrasts with the five years that were […]

Privilege perils – reporting with purpose

By Michelle Martin In the recent case of Artisan Glass Studio Limited v The Liffey Trust Limited, Slovak Limited (substituted by Aviva Limited & anor [2018] IEHC 278, which concerned fire damage to property, the High Court considered the relevant factors when deciding on a claim of litigation privilege, as set out below: “(a) Whether litigation […]

Buildings regulatory framework not fit for purpose

Dame Judith Hackitt’s much-anticipated final report on building regulations and fire safety was published on 17 May 2018. Stephen Radcliffe of Walker Morris LLP considers the report and the implications for the construction industry…

Social Housing Monthly Law Update – July 2018

By David Isaacson TLT’s monthly law update on all things affecting social housing Highlights this month include: The EU (Withdrawal) Bill receives Royal Assent Chair appointed to lead independent review into planning appeal inquiries Registered Social Landlords Bill gains Royal Assent Government announces it will fully fund unsafe cladding removal in social housing New powers […]

Technology, Media and Telecommunications

3 benefits for lawyers using the cloud under GDPR

By Teresa Matich Under the General Data Protection Regulation (GDPR), all businesses, including law firms, have a lot more responsibility when handling their clients’ personal data. Luckily, cloud-based solutions make it a lot easier to ensure you’re following best practices and staying GDPR compliant. This means you can spend less time poring over technical details related […]

Owners of Facebook Fan Pages warned by EU Court of Justice

In its judgement of 5 June 2018, the EU Court of Justice (“CJEU”) had a clear message for owners of Facebook Fan Pages: because of your choice to use Facebook’s social network for your marketing activities, you are jointly responsible together with Facebook for the processing of personal data of the visitors of your Fan […]

Russian restrictions for VPNs and anonymisers

By Meldir Erbulekova On July 29 2017 the Law on Amendments to the Law on Information, Information Technologies and Protection of Information (Federal Law 276 FZ) was adopted. The new law provides for the regulation of VPNs and other technologies (known as ‘anonymisers’) that allow users to surf the Internet anonymously. The new legal framework […]

3D printing – planning law, policy and procedures

It was recently reported that a family in Nantes, France has become the first in the world to move into a 3D­ printed house. The four­-bedroom property is a prototype for bigger projects aiming to make housebuilding quicker and cheaper. In our Planning 2020 white paper, we approached 100 senior decision makers working in the […]

Tax

Are your bribery procedures accurate? Learnings from a recent case

By Adrian Mansbridge The recent decision in R v Skansen Interiors Ltd is the first time the adequate procedures defence has been mounted in a contested trial and highlights how far you must go to demonstrate reasonable procedures to prevent tax evasion/bribery

Draft legislative proposal introduces a minimum price for CO2

The Dutch government has published a draft legislative proposal for consultation that introduces a minimum price for CO2. The minimum price is introduced by way of a tax levied on electricity producers. The tax is levied per ton of CO2 emission. In the proposal, the tax rate per ton CO2 is calculated each year as […]

Changes to the taxation of UK real estate held by non-residents

In November 2017, the UK Government’s Autumn Budget announced significant proposals relating to the taxation of gains made by non­-UK residents on disposals of UK property. Amongst other provisions, it was proposed that, for the first time, capital gains tax (CGT) would be applied to non­residents’ gains in respect of UK commercial property. CGT would […]

Welcome guidance on VAT recovery fuelling costs

The state secretary of finance published a decree which covers the question which party is entitled to recover VAT on fuel costs purchased with a fuel card. The decree provides welcome guidance for the automotive practice. A fuel card enables the cardholder to purchase fuel without actually making a direct payment to the gas station…

Transport (Including aviation and shipping)

Danube port legislation: building a bridge across various jurisdictions

The Danube is the longest river in Central Europe, and thus has significant economic potential. However, the full potential of the Danube as a major transport route has not yet been exploited. A reason for this is the fact that the Danube crosses ten countries, and there are, as a result, ten different applicable port […]

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