The CorporateGovernance Code of the Portuguese Corporate Governance Institute (Instituto Português de Corporate Governance – “IPCG”) waspublished on 30 January 2013. For the first time, commercial companies haveaccess to a corporate governance best practice code prepared by civil societywhich is an alternative to the existing corporate governance code of the SecuritiesMarket Commission (CMVM) ...
Sometimes, litigants are forced to reevaluate their strategy mid-course. Occasionally, a plaintiff in a pending trademark infringement action faces a cancellation counterclaim that poses a real threat to the plaintiff’s trademark. In that situation, to avoid the risk of cancellation or a declaration of invalidity, the plaintiff may want to voluntarily dismiss its claim and grant a covenant not to sue to the alleged infringer ...
The decision Mrs X v. Rothschild, rendered on 26 September 2012 by the French Cour de cassation1. called into question the practice of asymmetrical jurisdiction clauses, frequently included in international financial contracts ...
On January 6, 2013, the Basel Committee on Banking Supervision announced that it was relaxing the liquidity rules that will be applied to banks beginning in 2015. The Group of Central Bank Governors and Heads of Supervision (“GHOS”), the oversight body of the Basel Committee, then unanimously adopted the last changes made by the Basel Committee to the liquidity coverage ratio (“LCR”), which were presented in the version published in December 2010 ...
On January 17, 2013, the Treasury Department ("Treasury") and the Internal Revenue Service ("IRS") issued final regulations with respect to the Foreign Account Tax Compliance Act ("FATCA"). The legislation applies to payments to foreign financial institutions ("FFIs") and nonfinancial foreign entities ("NFFEs"). In general, FATCA requires certain persons making payments to FFIs and NFFEs to withhold 30 percent of any payment (a "Withholdable Payment") consisting of either (1) U.S ...
In 2007, companies completed more than 12,000 M&A deals globally, with values totaling over $3.5 trillion.1 Butthose volume and dollar records have since been buried under years of bad news. Dykema’s 2012 Mergers &Acquisitions Outlook Survey indicates that the mortgage meltdown, the recession, the European debt crisis, theaftereffects of the presidential election and now the “fiscal cliff” have pushed expectations for 2013 to a near recordlow ...
The Finance Bill 2013 makes changes to the rules applying entrepreneurs' relief (ER) to the disposal by an employee or officer of a company, on or after 6 April 2013, of shares meeting the requirements of the enterprise management incentive (EMI) scheme. Details ER enables shareholders of companies to sell their shares at a capital gains tax rate of only 10% for lifetime gains of up to £10m ...
The access to records clause, sometimes called the inspection or audit clause, is a common fixture in reinsurance agreements and serves an important function. It enables the reinsurer to track the performance of the agreement and maintain an accurate view of the business ceded. More specifically, it allows the reinsurer to ensure the cedent is complying with the terms and conditions of the agreement, including timely reporting of losses and calculation of premiums ...
Earlier this year, I wrote an article entitled “Why you should choose the BVI for your next Fund.” Since then new regulations ushering in an “Approved Managers” regime have been published and as of December 10, 2012 are now in force. The effect of these new regulations is to make the BVI an attractive option for setting up as an investment manager ...
It is estimated that there are more than 450,000 active companies incorporated in the British Virgin Islands (BVI) and that more than half of those companies are used in China, Hong Kong and other parts of Asia. While, traditionally, many of these companies have been used as asset holding vehicles, the robust Chinese economy has led to the increased use of BVI companies in China and Hong Kong as hedge funds and other types of investment vehicles. This is no surprise ...
On November 16, 2012, European Data Protection Supervisor Peter Hustinx published an Opinion on the European Commission’s Communication on cloud computing (part of the Commission’s broader cloud computing strategy) ...
With regard to our In Fact and In Law Express newsletter of July 2012, entitled ‘‘AMF Investigations: The duty to answer an investigator and his jurisdiction to rule on objections’’, please be informed that, on December 20, 2012, the Supreme Court dismissed Fournier’s application for leave1 to appeal a Court of Appeal decision2, which convicted Fournier of an offence under section 195(4) SA because of his refusal to testify whereas lower courts acquitted him ...
End users will be relieved to know that compliance dates for business conduct and documentation rules related to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), which had been driving the request by swap dealers and major swap participants for end users to enter into the ISDA August 2012 DF Protocol or otherwise amend their swap documents by the end of the year, have now been delayed until May 1, 2013 ...
According to a recent article by Shoosmiths, the cloud software market generated $22 billion in revenue in 2011, and expects growth to $67.3 billion by 2016 Alongside the benefit of cloud computing, however, lies a lack of transparency for cloud customers, causing legitimate concerns about how they can comply with the Data Protection Act 1998 (DPA) ...
The U.S. Court of Appeals for the Second Circuit, in VAM Check Cashing Corp. v. Federal Insurance Company, No. 11-2644-cv, (2d Cir. Nov. 7, 2012), found the "overt felonious act" requirement in a crime insurance policy to be ambiguous. The court held, therefore, that the insured would be entitled to coverage for a theft at the insured’s store, even though it occurred as a result of a covert scheme to defraud ...
On November 20 and 27, 2012, the International Swaps and Derivatives Association, Inc. (“ISDA”) filed two letters with the Commodity Futures Trading Commission (“CFTC”) requesting an extension of compliance dates for certain new business conduct, portfolio reconciliation and swap trading relationship documentation requirements issued by the CFTC pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) ...
In a recent decision1, the Superior Court ruled in favour of GE, Commercial Distribution Finance Canada ("GE") in a dispute against the national Bank of Canada ("NBC"). Both institutions had a common client, New World Zanotti Transblock Inc. ("Zanotti"), which had granted each of them a hypothec specifically charging its receivables. NBC had agreed to grant GE's hypothec a prior rant to its own ...
With the continued development of the Marcellus and Utica Shale, businesses in West Virginia, Pennsylvania and Ohio are experiencing rapid growth and facing many issues related to this growth they had not previously experienced. One important consideration is whether and how to insure these growing assets. While myriad issues may arise regarding insurance, this article will address some general types of insurance coverage growing businesses should consider ...
What's all this about penguins, pandas and search engine optimisation? Optimising websites to rank highly in Google search results is a lucrative industry. For years, businesses have employed search engine optimisation (SEO) providers to boost rankings ...
We are all too familiar with stories of contaminated food and drugs that sicken and even kill consumers. Given the increasing number of product recalls and their enormous financial impact, it is not surprising the demand for recall insurance has increased exponentially in the middle market. Why has the number of recalls increased so dramatically? The answer is twofold ...
On November 10, 2012, the German working group on technical and organizational data protection matters published guidelines (in German) on the technical and organizational separation requirements for automated data processing on shared IT systems (the “Guidelines”). The working group is part of the Conference of the German Data Protection Commissioners, which recently concluded its 84th Conference in Frankfurt (Oder) ...
On October 30, 2012, the U.S. District Court for the Southern District of California ruled that an opt-out confirmation text sent by Citibank (South Dakota), N.A. (“Citibank”) did not violate the Telephone Consumer Protection Act (“TCPA”). Under a “common sense” interpretation, the court determined that Citibank’s opt-out text does not demonstrate the type of invasion of privacy the TCPA seeks to prevent ...
Two recent decisions of the Court of Appeal Remind us of the duty on Investment Advisors and Financial Securities Advisors to know their client and the correlative duty of the information. In both cases, the Court of Appeal held that the Advisor has breached his duty to know his client, assess the Client's needs, and inform and advise the Client. Both cases also dealt with the Client's possible contributory negligence ...
On October 24, 2012, the Harper government announced its intentions to enact new regulations to protect consumers who use prepaid credit cards in order to broaden their options regarding the forms of payment that best suit their needs. Such prepaid payment products allow consumers to make purchases or cash withdrawals through a payment network like American Express, MasterCard or Visa, with funds that have been paid in advance to a financial institution ...
North Carolina’s banking laws have been comprehensively updated for the first time in 80 years and provide the state with one of one of the most modern banking systems in the country. Effective October 1, 2012, the bipartisan legislation is a product of compromise and joint effort on the part of legislators, banks and consumer advocates ...
