Briefings

Banking and finance

Helping customers to help themselves: How technology can help

Banking litigation experts Rob Aberdein and Justin Coley from Walker Morris’ Lender Services team explain how lenders and law firms can harness new technology and debt management solutions to offer an enhanced customer journey and improved lender/borrower relationships. 

Supreme Court rules a ‘right to litigate’ cannot be assigned to a third party

By Rebecca MacCann What happens if you assign your right to litigate to a person or company that is unconnected to the event that creates the right to litigate? In the recent Supreme Court case of SPV Osus Ltd v­ HSBC Institutional Trust Services (Ireland) Limited & Ors [2018] IESC 44, the Supreme Court held […]

Kazakhstan: China’s Belt and Road initiative and opportunities for Islamic finance

By Shaimerden Chikanayev Kazakhstan has high ambitions in China’s Belt and Road initiative (BRI) as it is geographically an ideal junction between China and the west. There may, however, be some roadblocks for the BRI’s projects in Kazakhstan. It is therefore important to examine past experiences in order to be able to predict what legal […]

Company and commercial

Commercial Court discharges $3bn freezing order in relation to Angolan sovereign wealth fund

On 16 August 2018, Mr Justice Popplewell discharged a $3 billion proprietary and freezing injunction (“WFO”) against the Defendants, Mr José Dos Santos, Mr Jean-Claude Bastos de Morais (“Mr Bastos”), and the Quantum Global group of companies. This is a very important judgment on the requirements for freezing orders, especially the duty of full and […]

Cayman Islands: A contractual term solid as a Rock

In a review of a recent judgment of the United Kingdom Supreme Court, which overturned longstanding precedent on No Oral Modification clauses, partner Ben Hobden and associate Spencer Vickers of Conyers Dill & Pearman in the Cayman Islands and the decision will provide welcome certainty on contracts…

M&A activity in Ireland valued at €70.9bn in first half of 2018

The first six months of 2018 have been notably buoyant for Ireland’s mergers and acquisitions (M&A) market. Dealmakers were kept busy with a pipeline of transactions, in a continuation of the active market that was evident last year…

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 […]

Corporate

Reform of the Portuguese pricing and reimbursement system

By Edward J. Dougherty Following a recent reform in 2015, the Portuguese pricing and reimbursement system is sophisticated and comprehensive. Nevertheless, substantial discretion is allowed to the competent national authority, and this is the source of most challenges for innovators…

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…

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 […]

Employment

Sentencing Council publishes gross negligence manslaughter definitive sentencing guideline

The penalties imposed on individuals for fatal accidents in the workplace are set to increase after the Sentencing Council for England and Wales published its definitive sentencing guideline for gross negligence manslaughter. Walker Morris health and safety experts, Stuart Ponting and Robert Starr, consider the new guideline and the implications for employers and directors…

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…

Are parent companies 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. […]

Energy and environment

Energy Update – August 2018

This energy update includes the following white papers: CMA publishes final report on Heat Networks calling for new regulation The first National Infrastructure Assessment is published recommending growth in Green Energy NAO report on package recycling Update on Electric Vehicles Amendment Regulations 2018 – in force 24 July 2018 The Mayor of London’s Energy Efficiency […]

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…

Funds

Portugal: Fund management 2018

By Pedro Simões Coelho, Ricardo Seabra Moura and Carlos Filipe Couto How is fund management regulated in your jurisdiction? Which authorities have primary responsibility for regulating funds, fund managers and those marketing funds?

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 […]

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 […]

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

Construction: can a company in liquidation refer a dispute to adjudication?

The Technology and Construction Court (TCC) has delivered a significant judgment in Michael J Lonsdale (Electrical) Ltd v Bresco Electrical Services Ltd (in Liquidation) [2018] EWHC 2043 (TCC) where the company seeking to refer a dispute to adjudication was in liquidation. The substance of the dispute related to the contractor’s claim for payment allegedly due for […]

When can a force majeure clause in contracts be relied on?

By Tom George, Daniel Wood and Cathy Moore In times of economic and/or political uncertainty, parties to construction contracts may consider whether they have a right to rely on force majeure provisions as a justification for temporarily or permanently failing to perform substantive obligations. We review the recent decision in Seadrill Ghana Operations Ltd v Tullow Ghana […]

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. […]

Pharmaceuticals and healthcare

New rules governing online sale of medicinal products in Romania

The online sale of pharmaceutical products in Romania has been on the rise in recent years. This strengthening trend can be attributed to the growth of online purchases in Romania in general and to the fact that, until recently, the law left room for interpretation in this area.  Recent amendments to the laws governing the sale of […]

Ireland: new Coroners Bill aims to modernise the law and address maternal deaths

The Minister for Justice and Equality, Charlie Flanagan, published the Coroners (Amendment) Bill 2018 on 2 August 2018 with the aim of significantly clarifying, strengthening and modernising the law relating to the reporting of deaths to coroners. The Bill, once enacted, will amend the Coroners Act 1962. The Bill allows for a wider scope of […]

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 […]

Private Client

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 […]

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…

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?

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…

Public sector and local authority

Will the revised NPPF lead to more affordable housing?

By Katherine Evans On 24 July 2018, the long-awaited revised NPPF was released. The omission of social rented homes from definition of affordable housing in Annex 2 of the draft revised NPPF has been addressed. Starter Homes are now included in the definition but secondary legislation is still required to set out financial eligibility for […]

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 […]

Real Estate and Infrastructure

Overseas companies and UK property – all change in 2021

By Maria Connolly At the end of July, the Draft Registration of Overseas Entities Bill was published. The intention is that, from 2021, overseas entities wanting  to deal in certain UK property will have to register in the overseas entities register (OER). Why will overseas entities have to register?

Hackitt review: Response suggests further extension of the regime

By Adrian Mansbridge As outlined in our previous articles covering what lies ahead for high rise regulation and the proposed ban on flammable cladding the legislative programme to implement the recommendations of the Hackitt review and to address broader concerns is already underway. However, as anticipated, political concerns have already led to these proposals being “beefed up”…

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 […]

Technology, Media and Telecommunications

Use of behavioural biometrics brings privacy issues under GDPR

By Alex Towers With cybertheft and data breaches becoming an increasingly common occurrence, the need to rapidly and accurately identify fraud has driven the development of behavioural biometrics as a means to target automated attacks and suspicious transactions. However, for the technology to function, companies must amass libraries of biometric personal data to construct profiles…

Retail Risk Report 2018: Digital disruption and regulatory changes

By Kerry Gwyther 2018 has been a particularly challenging year for retailers so far, combining tough trading conditions with digital disruption and major legal and regulatory changes. Our Retail Risk Report, now in its fourth year, is a single point of reference to help retailers understand the legal and regulatory changes taking place in 2018 […]

Blockchain roundtable: addressing the regulatory challenges of disruptive innovation

The Blockchain Research Institute (BRI) recently gathered nearly 70 global leaders in finance, law, government, academia and innovation for a special roundtable discussion that explored the challenges surrounding blockchain regulation. Usman Sheikh, Gowling WLG partner and National Head of the firm’s Blockchain & Smart Contract Group, co-led the forum with blockchain pioneer and co-founder of BRI Don Tapscott, […]

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 […]

Tax

Luxembourg publishes law on VAT grouping

As foreseen in our previous newsflash, the law on VAT grouping has officially been published, last Friday. The text – which provides for an entry into force on 31 July 2018 – modifies the general VAT Law. It now enables Luxembourg entities sharing financial, economic and organisational links to set up a VAT group, thus allowing them to […]

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 […]

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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