HIGHLIGHTSThe two duties of the directors: duty of care and fiduciary duty ...
In the Horizon Pleiades case, the Council of State was confronted with an interesting question: if a public authority organises a procedure to select its partner for a PPP company, which will perform works or services which would normally be covered by the Procurement Directives, does the selection procedure have to comply with the rules laid down in the Procurement Directives or can a “light” selection procedure be used? In its ruling, dated 19 June 2009, the Council of Stat
Born from the free movement provisions of the EU, and reflecting UK Government efficiency objectives, the procurement rules are aimed at ensuring equal treatment and opportunity when public authorities contract for works, goods and services by requiring, in broad terms, a publicised tender process. However, disgruntled bidders have not had a happy hunting ground when seeking to challenge a suspected defective procurement exercise before the courts ...
The Acoset judgment of the ECJ dated 15 October 2009 (C-196/08) was related to a dispute about an institutionalised public-private partnership (IPPP). A local authority wanted to grant a concession to a newly-created semi-public company, whose minority shareholder would be a private company selected by an open tender procedure. The minority shareholder would be responsible for the operations of the semi-public company ...
In Belgium, contracting agreements are subject to the Belgian Civil Code (‘BCC’) plus several other regulations. In this article, we briefly discuss five rules which foreign investors or principals may be surprised apply to Belgian contracting agreements. Make sure you avoid these pitfalls!1 ...
In its Sea Judgement of 10 September 2009 (C-573/07), the European Court of Justice (ECJ) further clarifies its “in-house” jurisprudence. More specifically, it goes more deeply into the notion of control ...
In our final procurement update of 2009 we report on two important administrative changes: new advertising thresholds, and new OJEU notices. New advertising thresholds published These will apply for two years from 1 January 2010. As predicted, because Sterling has been so weak against the Euro, the Sterling thresholds have actually gone up significantly (meaning slightly fewer contracts will be caught by the full Regulations) ...
by Oleh I. Furmanchuk, Associate with AstersAccording to the 2008 Yearly Report of the Antimonopoly Committee of Ukraine (the "AMCU"), 658 cases regarding anticompetitive actions of bodies of power were investigated by the AMCU and its bodies in 2004-2008. In 2008, the AMCU investigated 215 such cases, demonstrating a 17.5% increase compared to the previous year (there were 183 cases in 2007) ...
THE MEMBER FUNDED PENSION PLAN: A DEFINED BENEFIT PENSION PLAN THAT LIMITS THE EMPLOYER'S FINANCIAL RISKJosée [email protected]çois [email protected] decision by an employer to offer a pension plan to its employees is an important one. Various types of pension plans may be offered, and the financial risk of the employer depends on the type of plan chosen ...
Seeking a state purchasing contract? You may now be required to register as a lobbyist. Some independent contractors who help vendors secure procurement contracts in Texas are now required to register with the Texas Ethics Commission.1 House Bill 3445, which the Texas Legislature passed last spring during the 81st Texas Legislative Session, established new guidelines for lobbying activities related to state procurement contracts ...
The Head of the Capital Market and Financial Institutions Supervisory Agency (Bapepam-LK) has determined that the previous regulation regarding affiliated and conflict of interest on particular transactions no longer suits its purpose and through his decision No.KEP-412/BL/2009 he has repealed and replaced the earlier regulation Decision No. Kep-521/BL/2008. The new regulation has been in effect since 25 November 2009 ...
The Head of the Capital Market and Financial Institutions Supervisory Agency (Bapepam-LK) issued Decree No.KEP-413/BL/2009 on 25 November 2009 to assist issuers and public companies to perform their business activities while simultaneously protecting their investors. The decree updates an earlier decision, No.Kep-02/PM/2002 and its Regulation No.IX.E.2. The decision repeals and replaces the previous decisions and amends Regulation No.IX.E.2 ...
The Business Competition Supervisory Commission (KPPU) has issued Decision No. 57/KPPU/Kep/III/2009, dated 12 March 2009, regarding Guidance to Implement Provisions in Article 50 (b) of Law No. 5 of 1999 regarding Prohibition of Monopoly Practice and Unfair Business Competition Relating to Franchise-Related Agreements (“KPPU Guidance”) ...
Buyers and sellers often have different views on how much a target is worth and how its value should best be determined. Normally, the valuation of a company is based on both its past performance and its projected future performance. While the seller may be confident of the company's future growth, the buyer may be reluctant to assume the risk of the company failing to perform as expected by paying the seller the whole purchase price upfront ...
The IRS has issued a Notice that describes a document correction program covering certain failures to comply with Section 409A of the Internal Revenue Code (“409A”). 409A contains tax rules for nonqualified deferred compensation arrangements. While this IRS program offers employers welcome relief from inadvertent drafting mistakes and other failures to conform applicable documents to the requirements of 409A, it also raises some additional concerns ...
On December 30, 2009, the Securities and Exchange Commission (the “SEC”) formally published amendments to Rule 206(4)-2 of the Investment Advisers Act of 1940, as amended (the “Custody Rule”). The Custody Rule is designed to increase protections for clients and investors who turn their assets over to an investment adviser registered with the SEC, and it imposes significant new regulatory requirements on advisers with custody of client assets. Surprise Examination Requirement ...
The Department of Labor recently issued model notices for employers to use under the COBRA subsidy extension, and the Internal Revenue Service issued additional guidance for an employer claiming on its federal employment tax return (Form 941) the credit for 2009 retroactive coverage arising from the subsidy extension for those individuals who had otherwise exhausted the subsidy period ...
The SEC’s Division of Enforcement is implementing a series of measures designed to enhance and encourage cooperation in its investigations and litigation and, the Division hopes, expedite the enforcement program. This project is referred to as the “Cooperation Initiative ...
In a case arising from the Southern District of Texas, the Federal Circuit recently issued an opinion that highlights the risks associated with marking products with patent numbers. See Forest Group, Inc. v. Bon Tool Co., No. 2009-1044 (Fed. Cir. Dec. 28, 2009) (slip opinion) ...
As described in an earlier alert, the IRS has announced a document correction program covering certain failures to comply with Section 409A of the Internal Revenue Code (“Section 409A”), which contains tax rules for nonqualified deferred compensation arrangements. This Alert focuses on a common error that can now be corrected, and the importance of finding and correcting this and other errors as quickly as possible ...
The U.S. Department of Labor (“DOL”) issued final regulations, effective January 14, 2010, that (1) clarify that the contribution timing rules apply to plan loan repayments, and (2) provide a safe harbor for depositing participant contributions (including loan repayments) to employee benefit plans with fewer than 100 participants on the first day of the plan year ...
The Provision of Services Regulations 2009 (Regulations) came into force on 28 December 2009 and created new obligations for service providers. The Regulations stem from the EU Services Directive (Directive), which aims to simplify regulatory and administrative procedures in relation to establishing and carrying on services in the EU, thereby encouraging more services to be provided on a cross-border basis ...
On January 19, 2010, the Department of Justice pulled back the curtain on its largest prosecutions of individuals in the history of the Foreign Corrupt Practices Act (“FCPA”). About 150 agents from the Federal Bureau of Investigation arrested 22 individuals and executed 14 search warrants in the United States and United Kingdom. Those arrested are believed to represent about 16 companies involved in the foreign bribery investigation ...
Dear Sirs, On December 31, 2009 the provisions of the Federal Law No ...
Dear Sirs, On November 27, 2009 the Order of the Federal Service on Financial Markets dated August 13, 2009 ¹ 09-33/pz-n “On peculiarities of the procedure of maintaining the register of registered securities’ holders by the issuers of registered securities” (hereinafter the “Order”) came into force ...
