Briefings

Banking and finance

Claims management companies: The new regulatory regime

Walker Morris Banking Litigation partners Louise Power and Rob Aberdein explain the new regulatory regime and the Financial Conduct Authority’s proposals for changes to the regulation of claims management companies across England, Wales and Scotland…

Report of the Independent Review of the FOS is published

By Richard Hayllar On the 12 July 2018, the Financial Ombudsman Service (the FOS) published a report on an Independent Review carried out by Richard Lloyd (former Which? executive). The review was undertaken following the broadcast of the Channel 4 Dispatches programme which set out a number of concerns about the handling of FOS complaints.

Parliamentary group proposes a Financial Services Tribunal

Kevin Hollinrake MP (Co-Chair of the APPG on Fair Business Banking) has published his report titled “Fair Business Banking for All: How to improve access to justice for businesses in financial services disputes” (the Report). Following the APPG’s responses to the FCA’s consultation on expanding the FOS’s jurisdiction (CP18/3), the Report sets out various recommendations […]

Reform of civil forfeiture orders in Jersey

MONEYVAL’s inspection of Jersey’s AML regime in 2015 and its subsequent report issued in May 2016 has focussed the minds of Jersey legislators and regulators to actively prosecute more financial crime and in particular to introduce a non­ conviction based confiscation regime to apply in parallel with the conviction based system…

Company and commercial

arbitration

Efficient arbitration, part 2: Launching an Efficient Arbitration

Kicking off our series on efficiency in arbitration, our first article, Efficient Arbitration – Part 1: Metrics sets out our idea of an efficient arbitration: Achieving the best possible outcome with the least amount of resources. A range of tools are available to focus the spending of resources. Resources should be invested, not wasted. The selection of […]

Efficient arbitration, part 1: Metrics

This is the first in a series of articles by Schoenherr focusing on efficiency in arbitration. In our series, we will explore various tools which serve to improve the efficiency of any given arbitration and so achieve a favourable outcome without wasting resources. But before exploring those tools we need to determine what efficient arbitration […]

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 […]

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

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.

Unfair dismissal 2018 update

By Siobhan Bishop and James Hall In this podcast we are discuss some of latest developments in unfair dismissal from the initial stages of suspension, right through the investigation and ultimately to dismissal…

GDPR and recruitment

By Siobhan Bishop and Alice Loughney There are some tricky issues relating to recruitment arising out of the introduction of the new General Data Protection Regulations (GDPR) rules, which came into force on 25 May 2018. This podcast looks at the impact of the GDPR on pre­employment medicals, criminal convictions and equal opportunities monitoring…

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

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 […]

Asset management and investment update

Each month our Asset Management & Investment Funds team write a ‘Legal & Regulatory Update’. Welcome to the July issue. The topics covered in this months edition include: AIFM fined €443,000 by the Central Bank as a result of regulatory breaches of Client Assets, AML/CFT and Fitness & Probity Rules Corporate Governance Code for Investment […]

Support fund for tourism and cinema incentive for major international events

One of the purposes of the Fund is to grant support to programmes to strengthen Portugal’s position as a tourist destination. Against this background, it was acknowledged that one of the ways to boost Portugal’s image as a tourist destination would be to attract and put on major international events…

FCA publishes rules for solo-regulated firms

By Ian Mason, Penny Sanders, Kam Dhillon and Jonathan Chamberlain The Financial Conduct Authority (FCA) has published its near-­final rules and guidance on the Senior Managers & Certification Regime (SMCR). The SMCR will replace the current Approved Persons Regime on 9 December 2019… We focus here on the extension of the SMCR for FCA solo­-regulated firms…

Insolvency and restructuring

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 […]

India: Amendments to securities board delisting regulations

Between 31 May to 1 June, the Securities and Exchange Board of India (SEBI) amended a number of securities regulations to provide certain dispensations for listed companies undergoing the corporate insolvency resolution process (CIRP) under the Insolvency and Bankruptcy Code 2016 (IBC). These amendments follow SEBI’s discussion paper of March 2018, which set out specific […]

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

Glasgow Rangers Football Club enters legal battle with Sports Direct

By Stephen Keogh Just weeks before the new Scottish football season commences, Glasgow Rangers Football Club (“Rangers”) finds itself prevented by Mike Ashley’s Sports Direct Group from selling new replica football jerseys. This is not the first time the parties have fallen out over merchandising rights…

dark web

Strategies for the shadows: Protecting your company on the dark web

By Emilie Feil-­Fraser Companies already face formidable challenges in protecting their IP rights online, but a new threat is emerging from the shadows – the growing incidence of IP rights infringement on the enigmatic and nebulous dark web. Although for many the dark web is still largely a mystery, it is critical that companies to […]

Intellectual property: Challenges facing the automotive sector

By Gordon Harris and Matt Hervey The car industry faces, simultaneously, the emergence of connected and autonomous vehicles and regulatory pressures to eliminate the internal combustion engine. Autonomy, in particular, requires innovations in artificial intelligence, mapping, sensors and connectivity. It has also triggered market entrants pursuing radical business models that threaten private car ownership. With so […]

Shire successfully defends Canadian VYVANSE patent

By Alexander Camenzind Apotex’s invalidity allegations regarding Shire’s Canadian Patent 2,527,646 covering the active ingredient in Shire’s ADHD medication VYVANSE® have been rejected following a 17­day trial before Justice Fothergill of the Federal Court.[1] Fothergill J. held that each of the claims in issue of the 646 Patent are not invalid on any of the […]

Litigation

Japanese Knotweed and private nuisance: Network Rail Infrastructure Ltd v Williams

By Howard Leithead Court of Appeal clarifies that, where Japanese knotweed is encroaching on their land, landowners do not have to wait until physical damage to their properties occurs before bringing an actionable claim in private nuisance. The judgment brings clarity to the law of private nuisance; the implications extend far beyond Japanese knotweed to […]

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…

Eviction of travellers – writ of possession or common law?

By David Asker There are approximately between 200,000 and 300,000 travellers living in the United Kingdom with around 60,000 who live in caravans on both authorised and unauthorised sites. If you do have problems with travellers then there are two options available to you, we outline these options and advise of which might be best […]

Pharmaceuticals and healthcare

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 […]

‘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…

Private Client

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 […]

Court of Appeal upholds s.2(1) Suicide Act

It is a criminal offence to assist another person to commit suicide. The Court of Appeal has today rejected a challenge to this offence brought under art 8 of the European Convention on Human Rights. The case raises key constitutional and ethical questions…

Supreme Court rules in favour of civil partnerships for all

By Sarah Green This week, judgment was handed down by the Supreme Court of England and Wales in the case of Rebecca Steinfeld and Charles Keidan, who have campaigned to be able to enter into a civil partnership, historically only available for same-sex couples. The couple wished to be able to have legal recognition of […]

Public sector and local authority

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 […]

Social Housing Monthly Law Update – June 2018

TLT’s monthly law update on all things affecting social housing Highlights of this month include: Automatic disqualification rule changes: Charity Commission declarations GDPR enforcement and penalties: ­What you need to know Dress codes in the workplace: New government guidance Government announces it will fully fund unsafe cladding removal in social housing Viability argument for 10% […]

Using blockchain for land registry

Blockchain is beginning to be increasingly explored by different industries looking to benefit from the accuracy and speed that the technology can offer. We recently looked at the use of blockchain in banking and financial services and how it can enable faster business transactions while reducing back-office processes…

Real Estate and Infrastructure

Adjudication Matters – July 2018

The Courts have re-affirmed that, despite a contract containing an express right of set-off, it is only in exceptional circumstances that a party will be entitled to set-off another claim against an Adjudicator’s award. This case serves as a helpful reminder that a right to set-off is unlikely to apply to an Adjudicator’s decision. The […]

Adoption of unregistered land as highway

By Paul Weeks Unregistered land in unknown ownership can cause a headache on development and the extent of the issue will often depend upon what the land is needed for…

Three-year tenancy agreements – government consultation

By David Asker The government intends to hold a consultation on tenancy agreement lengths, with the proposal setting out the shortest term being three years with a six­month break clause. As it stands around 80% of tenancies in England and Wales are either six or twelve-month assured shorthold agreements, any changes would be significant and […]

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 […]

Technology, Media and Telecommunications

India: The age of telephony has arrived

On 19 June 2018, the Department of Telecommunications, Government of India (DoT) finally provided its nod to several key recommendations (Recommendations) made by the Telecom Regulatory Authority of India (TRAI) on the Regulatory Framework for Internet Telephony in October 2017. DoT has released a clarification (Clarification) and certain amendments to existing licenses (Amendment), both of […]

Webinar: Utilising collaboration tools to deliver legal operations excellence

Collaboration tools are a critical element in delivering the core competencies of legal operations. HighQ’s features, functionality and flexibility allow you to create a “legal nerve center” within our enterprise cloud collaboration and productivity platform that will optimize the legal department’s efficiency, value and delivery of service to its business. This webinar focuses on: Solutions […]

Fact, disinformation, opinion: How to protect your business

By Susan Kent Media in all its forms plays a pivotal role in building support or contempt for a particular subject or target. The migration of journalistic content from print to online has created an easily accessible and uncensored encyclopaedia of information. Whatever your favoured term is – fake news, disinformation or malicious falsehood – […]

Is your firm smart? Understanding SmartLaw for business success

Staying ahead of the innovation curve is challenging. Existing clients expect it. Prospective clients demand it. SmartLaw—a framework that focuses on clients, culture and the intelligent use of technology—offers firms a pathway forward in an ever-changing business environment. Learn from industry experts, Michael Dov Nogroski, Michael Callier and Rob MacAdam as they discuss the impacts of legal […]

Tax

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 […]

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…

ECJ confirms deduction VAT on acquisition costs active holding company

On 5 July the European Court of Justice (“ECJ”) has delivered its ruling in the Marle Participations case (C-320/17). The Marle Participations case is about deduction of VAT on costs (“input VAT”) incurred in connection with the acquisition of shareholdings in subsidiaries…

Luxembourg starts ratification procedure for the MLI

On 3 July 2018 the Luxembourg government submitted the bill for ratification of the Multilateral Instrument (“MLI”) to parliament. The positions taken on the MLI do not deviate from the provisional list of choices and reservations notified by Luxembourg to the OECD in June 2017. The explanatory note to the bill contains a summary of […]

Transport (Including aviation and shipping)

IP litigation in auto sector expected to rise

By Gordon Harris and Matt Hervey Eighty-six per cent of industry experts expect to see more litigation over intellectual property (IP) rights in the automotive sector due to connected and autonomous vehicles, new research suggests. Insight gathered by Managing IP, in conjunction with international law firm Gowling WLG, has been compiled into a report discussing the […]

Seizure of an aircraft under a High Court writ

By David Asker David Asker has been at the ap&m exhibition at London Olympia. He will be holding a specialist webinar on 5 June to speak in depth about recovering aircraft under a High Court writ and to answer any questions you might have about this area of our work…

Norway legal practice: market update 2018

This annual publication underscores the importance of the Norwegian market to our Bermuda corporate practice. The shipping and offshore sectors experienced another difficult year for new financings and equity raises in 2017. Market activity has focused on consolidation, private placements and debt restructuring, as evidenced by the deals highlighted below. In challenging times, Norway’s over-the-counter […]

The impact of GDPR on the aviation industry

By Sarah Twohig On 25 May 2018, the General Data Protection Regulation (“GDPR”) will come into force. For the aviation industry, this means that data protection obligations will significantly expand under the regulation and companies operating in the industry must ensure they are compliant with their legal obligations by the May 2018 deadline…

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