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On Shaky Ground: How Can Policyholders Prepare for the Predicted Increase of Earthquakes in 2018?

2018 has been a busy year for seismic activity with significant earthquakes occurring in Alaska, Japan and California.

With predictions of more earthquakes to come, corporate policy holders will inevitably ask “what insurance coverage is available to protect against property damage and business interruption loss from earthquakes?”

There are four key issues to consider for policy holders in the year ahead:
-Distinguishing Occurrences
-Deductibles and Total Insured Value
-Limiting “Earth Movement” Exclusions
-Contingent Business Interruption Coverage

By giving due consideration to the items listed above, policyholders may be able to enhance insurance coverage for earthquake-related loss and damage.

To read a full analysis on these key issues please click here: http://www.worldservicesgroup.com/publications.asp?action=article&artid=9064 


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Lexology Aviation Navigator: Philippines

With the continued increase of Air passenger traffic, new developments in the Aviation Industry occur quite often.

In the Philippines, there have been notable recent developments in the Aviation and Transportation sectors.

Some of the key issues to consider in the Philippines Jurisdiction are:
-Governing Bodies and International Aviation Agreements
-Financial Thresholds and Insurance Coverage on Air Carrier Operations
-Consumer protection and Liability
-Regulation of Aircrafts and Airports
-Dispute Resolutions

By giving due consideration and gaining insight to the issues listed above, a comprehensive understanding of the recent developments in the aviation industry can be reached, not just in the Philippines, but perhaps in other jurisdictions as well.

To read a full detailed analysis on these key issues please click here: http://www.worldservicesgroup.com/publications.asp?action=article&artid=9052 


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Third Circuit Says "Umbrella Damages" Bar Does Not Preclude Antitrust Standing Where Product Is Partly Comprised of Materials Not Subject to the Alleged Conspiracy

In a case of first impression, the Third Circuit recently held in In re Processed Egg Products Antitrust Litigation, No. 16-3795, 2018 U.S. App. LEXIS 2698 (3d Cir. Jan. 22, 2018), that a direct purchaser of a product, comprised partly (but not all) of price-fixed materials, has antitrust standing to pursue a claim against the product’s seller where the seller is a participant in the alleged price-fixing conspiracy, even if the product also includes some material supplied by a third-party non-conspirator.

This appeal is about eggs—and, specifically, plaintiffs’ inability to unscramble them.  Plaintiffs in this case are major food manufacturers (including Kraft, Kellogg’s, and General Mills) who purchased egg products from egg supplier defendants.

There are two main channels of distribution for eggs: (1) “shell eggs” are sold as whole eggs in grocery stores, and (2) “egg products” are eggs removed from the shell and processed in liquid form.  Egg products typically are sold to food manufacturers for use as ingredients in other foodstuffs.  In this suit, plaintiffs bring claims relating only to their purchases of egg products.

Plaintiffs allege that the defendants (five egg suppliers and a trade association) jointly agreed to participate in a certification program by which they would increase cage sizes and take other actions to improve the conditions of hens in their egg-laying facilities.  According to plaintiffs, however, the animal-welfare justification for this certification program was mere pretext; the true aim of the program, they allege, was to reduce the overall output of eggs in order to inflate egg prices.

Plaintiffs’ theory was complicated by the fact that some of the egg products that plaintiffs purchased were not made up solely of eggs supplied by the defendants.  Rather, as plaintiffs conceded, some indeterminate percentage of the egg products they purchased were made up of eggs supplied by producers who took no part in the alleged conspiracy.  Plaintiffs’ damages calculations did not distinguish between overcharges that they allegedly paid for egg products made with defendants’ eggs versus those from non-conspirators’ eggs.

The district court granted summary judgment to the defendants, finding that plaintiffs lacked antitrust standing.  Given that plaintiffs were pursuing claims over egg products that admittedly contained some portion of non-conspirator eggs, the district court held plaintiffs were impermissibly seeking to recover “umbrella damages,” the prohibition on antitrust plaintiffs seeking damages from parties not part of the alleged conspiracy.  The district court also held plaintiffs’ suit violated Illinois Brick’s bar on the recovery of pass-through overcharges, finding plaintiffs’ theory too speculative in tracing damages through the distribution chain.

The Third Circuit reversed, holding that plaintiffs had antitrust standing to pursue these claims.  The Court held that the prohibition on umbrella damages was inapplicable in this suit because plaintiffs were not seeking to sue suppliers with whom they had made no purchases—rather, plaintiffs were pursuing claims against defendants from whom they directly purchased products that incorporated an allegedly price-fixed component.  Likewise, the Court held, Illinois Brick does not bar this suit because plaintiffs had a direct purchaser relationship with the defendants, thus sidestepping Illinois Brick’s concern about the risk of multiple layers of liability. 

The Third Circuit’s analysis may be a win for plaintiffs at the pleading stage, but the Court was exceedingly careful to explain that it was not weighing the merits of the case.  As the Court made clear, plaintiffs could only actually recover damages related to the portion of the egg products they purchased from the defendants and that were subject to the alleged conspiracy.  Thus, on remand, plaintiffs likely will be faced with the task of parsing out that precise portion and proffering a damages model that accounts for this limitation on recovery. 


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BC Budget 2018 - Real Estate Highlights

On February 20, 2018, the Hon. Carole James, Minister of Finance and Deputy Premier, introduced the 2018 British Columbia Provincial Budget. Included in the Budget was the NDP’s 30-point plan for housing affordability in British Columbia.

Included in this 30-point plan are the following measures:

1. New Speculation Tax.  In Fall of 2018, the Province will introduce a new speculation tax on residential property.  The tax will target foreign and domestic speculators who pay little or no income tax in British Columbia.  Primary residences and long term rentals will generally be exempted.  The tax will apply to the Metro Vancouver, Fraser Valley, Nanaimo and Capital Regional Districts, and Kelowna and West Kelowna. The tax rate will be 0.5% of taxable assessed value for the 2018 tax year and 2% thereafter.

2. Property Transfer Tax Increase on Residential. Effective February 21, 2018, Property Transfer Tax on residential properties has been increased from 3% to 5% on the portion of the fair market value greater than $3,000,000.

3. Foreign Buyers’ Tax Increase.  Effective February 21, 2018, the foreign buyers’ tax (also known as the additional property transfer tax) has been increased from 15% to 20%.  This tax has also been extended outside of the Lower Mainland to include the Capital Regional District, the Fraser Valley, the Central Okanagan and the Nanaimo Regional District (though there will be a short grandfathering period for transactions in these regions). 

4. Pre-Sale Assignment Registry. The Province will require developers to collect and report comprehensive information about the assignment of pre-sale contracts. The government also indicated that collecting this information will allow government to develop new taxation models in the future.

5. Beneficial Ownership Registry.  In addition to requiring further beneficial ownership information to be disclosed on Property Transfer Tax filings, the Province is establishing a public registry recording beneficial ownership of land that will be administered by the Land Title Survey Authority. The Province will also be enacting legislation that will require corporations in British Columbia to hold accurate and up-to-date information on beneficial owners of land in their own records office so as to be available to governmental authorities. Again, the government indicated that the collection of this information will allow the government to develop new taxation models in the future.

We will provide a further update as more details related to these new measures are made public.


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The Data Protection Impact Assessment (DPIA) II (Consultation with the Data Subjects and the DPA)

The Data Protection Impact Assessment (DPIA) II (Consultation with the Data Subjects and the DPA)

The GDPR contains rules on when controllers are required to prepare a data protection impact assessment (DPIA), when they have to seek the views of data subjects or their representatives on the intended processing and, furthermore, when they are obliged to consult the supervisory authority prior to processing.

The Article 29 Data Protection Working Party (WP29) issued guidelines on the DPIA on 4 April 2017 (WP248), that were then revised on 4 October 2017, and that interpret the respective provisions of the GDPR (Articles 35-36 and Recitals 75-76, 84 and 90-95).

Below you will find a Q&A concerning the issue of seeking the views of data subjects and the prior consultation with the supervisory authority.

1. Who Is Required To Seek The Views Of Data Subjects?

Under the GDPR, where appropriate, the controller is required to seek the views of the data subjects or their representatives on the intended processing, without prejudice to the protection of commercial or public interests or the security of processing operations.

Thus, a business secret or commercial plan may serve as a ground for an exception to the requirement to seek the views of the data subjects. It is the controller that has to justify and demonstrate  that seeking of such views is not required.

2. When Is Tt Required To Seek The Views Of The Data Subjects?

The GDPR provides that the controller is required to seek the views of the data subjects or their representatives on the intended processing, meaning that the seeking of the views has to occur prior to processing.

3. How Should The Controller Seek The Views Of The Data Subjects?

The GDPR is silent on this issue. The WP29 says in its guidelines that the “views could be sought through a variety of means” (e.g. a question or survey sent to the data controller’s potential customers).

In line with the principle of accountability,

- if the data controller’s final decision differs from the views of the data subjects, the reasons for proceeding or not with the data processing activity has to be documented;

- the data controller should also document the reasons why it has not sought the views of data subjects (e.g. doing so would be disproportionate or would endanger the business plans of the company).

4. When Is Tt Required To Consult The Supervisory Authority Prior To Processing?

If the controller is unable to reduce the identified high risks to an acceptable level, i.e. the remaining risks are still high, the controller is required to consult the supervisory authority prior to processing.

Examples of an unacceptable high residual risk:

- where the data subjects may encounter significant, or even irreversible, consequences, which they may not overcome (e.g. an illegitimate access to data leading to a threat on the life of the data subjects, a layoff, a financial threat);

- when it seems obvious that the risk will occur (e.g. the controller is not able to reduce the number of people accessing the data because of its sharing).

As regards the assessment of the level of the risk, the “Recommendations for a methodology of the assessment of severity of personal data breaches” issued by the European Union Agency for Network and Information Security gives useful and practical guidance.

5. What Information Has To Be Provided To The Supervisory Authority? 

The controller is required to provide to the supervisory authority the following information and documents: 

(a) the respective responsibilities of the controller, joint controllers and processors involved in the processing; 

(b) the purposes and means of the intended processing; 

(c) the measures and safeguards provided to protect the rights and freedoms of data subjects; 

(d) the contact details of the DPO, if any; 

(e) the DPIA and 

(f) any other information requested by the supervisory authority.

6. How Long Does A Consultation Last? 

It depends on how the supervisory authority judges the case. 

If the supervisory authority is of the opinion that the intended processing would infringe the GDPR (e.g. because the controller has insufficiently identified or mitigated the risk), the supervisory authority must, within a period of up to eight weeks of receipt of the request for consultation, provide written advice to the controller. That period may be extended by six weeks, taking into account the complexity of the intended processing. Those periods may be suspended until the supervisory authority has obtained information it has requested for the purposes of the consultation. 

Taking this into account, consultation may last for about 4 months or even more. Controllers are advised to take this into consideration and plan well ahead if they are about to launch a new data processing operation which requires a DPIA.

For further insight please refer to my newly launched blog post here: http://eugdpr.blog.hu/tags/GDPR 

In my next post, I will address issues concerning the administrative fine supervisory authorities may impose.

Zoltán Balázs Kovács, J.D. (LL.M.), Partner, Szecskay Attorneys at Law, Budapest, Hungary ([email protected])

The contents of this post are intended to provide only a general overview of the subject matter and do not qualify as legal advice.


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COLOMBIA: Legal Developments In Customs & Foreign Trade During 2017

I would like to bring your attention to some key legal developments that occurred in Colombia in Customs and Foreign Trade over the last year.

These legal developments are related to 4 major industry topics:

- FTA's and other Trade Agreements

- Trade Defense Measures

- Customs regime and facilitation of foreign trade

- Free Trade Zone Regime

The Colombian government’s focus is to strengthen the economy by entering into trade agreement’s and fully taking advantage of existing ones, protecting its national industry through trade measures when applicable, reforming regulations aiming to facilitate trade and business, and fostering foreign investment into the country via free trade zones.

To read the full analysis on the legal developments and how Colombia is trying to achieve this, please click here: http://www.worldservicesgroup.com/publications.asp?action=article&artid=9058 


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UAE VAT Executive Regulation Update

Please allow me to refer you to the article below, providing an update on the UAE VAT Executive Regulation. This is a big development for the UAE.  The UAE has no corporate or personal income tax (except for taxes on foreign banks and oil companies) and, as a result, there were generally no financial reporting requirements. 

The introduction of VAT has necessitated the formation of a Federal Tax Authority and filing of financial information for the first time for most businesses.

To Read The Full Analysis on the UAE VAT Executive Regulation Click Here: http://www.worldservicesgroup.com/publications.asp?action=article&artid=8911


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Analysis of the New Draft Law on Mining Activities Approved by the Romanian Government

The Romanian Government has recently approved a draft law on mining activities that is intended to replace the existing law, enacted in 2003. The new law gives titleholders of mining licenses enhanced rights of access to the land necessary for the mining operations.

 

What is New and Important Regarding the Draft Law?

-Land access rights

-Transfer of rights and obligations deriving from the mining license

-Obligation of the titleholder to incorporate a Romanian subsidiary after being awarded the mining license

-Elimination of the approval of the production mining licenses by Government Decision

-Mining royalties and special taxes on prospecting, exploration and production of mineral resources

 

To read more on the Draft Law Click Here: http://www.worldservicesgroup.com/publications.asp?action=article&artid=8937 


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The Impact of the New Senate Approved Trump Nominee for General Counsel of NLRB

Please allow us to refer you to the article below on the appointment of the new General Counsel for the National Labor Relations Board:

The U.S. Senate confirmed Peter Robb as the new General Counsel for the National Labor Relations Board ("NLRB" or "Board"). In private practice, Robb was a noted critic of the NLRB under the Obama administration, particularly the Board's so-called quickie election rules and what he has termed the Board's narrow definition of supervisory status.

This appointment is significant both because the NLRB has been particularly active in recent years, issuing numerous pro-employee, pro-labor decisions, and because the General Counsel role comes with substantial power.

To continue reading on how the nomination affects Non-Union Attorneys, click  here


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Legal and Economic Significance of Offshore Finance in the British Virgin Islands

Please allow me to refer you to the article below, analyzing the legal and economic significance of off-shore finance in the British Virgin Islands:

International financial records recently stolen from two offshore services firms and 19 corporate registries maintained by governments were leaked to journalists and their details subsequently published around the world. But beyond the hype, however, we find no intelligent inferences of legal significance in the reporting.

For example, the media draws attention to a United States Cabinet member's offshore financial transactions but does not allege that his shipping stake was illegal. Nor does it allege his foreign-registered holding company was illegal or that he failed in any disclosure duty.

(To read the full analysis click herehttp://www.worldservicesgroup.com/publications.asp?action=article&artid=8936).


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