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New Structure of Kazakhstan’s Government

On 6 August 2014 the President of the Republic of Kazakhstan issued Decree on reorganization of the Government (the “Decree”). The Decree envisages integration of ministries or certain authorities of theirs into one…more

Government Entities, Reorganizations

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Statute of Limitations for Government Enforcement Actions Seeking Civil Penalties Starts When Conduct Occurs, Not When Discovered

In Gabelli v. SEC, 568 US ___ (2013), a unanimous Supreme Court reversed the Second Circuit and held that the five-year statute of limitations for Government civil penalty enforcement actions under 28 U.S.C. §2642 begins to run…more

Discovery Rule, Fraud, Gabelli v SEC, SCOTUS, SEC

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Extension to Deadline to Disclose Relevant Transactions for Fiscal Year 2014

Pursuant to article 31-A of the Federal Tax Code, rule I.2.8.1.14 and Annex 1-A of the Fifth Set of Amendments to the Miscellaneous Fiscal Resolution for Fiscal Year 2014, as of January 1, 2014, taxpayers are obliged to disclose…more

Disclosure Requirements, Mexico, Time Extensions

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Foreign Investment in Multi-Brand Retail Trading in India: Government issues clarifications

In September 2012, the Government of India (GoI) permitted foreign direct investment (FDI) up to 51% of the equity of Indian entities engaged in multi-brand retail trading (MBRT) in India (see our earlier alert of October…more

Foreign Investment, India, Infrastructure, Local Sourcing, MBRT

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Development and Opportunities in the Turkish Market - December 2012

The Turkish government’s agenda for development is one of the most ambitious in the world. Combined with investor friendly changes in the market, including a new investment incentive regime and new regulation enhancing…more

Financing, Foreign Investment, Public-Private Partnerships, Shareholders

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Important changes to Italian mandatory tender offer Rules

The Decreto Competitività (as converted into Law with amendments, the “Decree”), published on August 20, 2014, in the Italian Official Gazette (Gazzetta Ufficiale della Repubblica Italiana), has made some important changes to…more

EU, New Regulations, Tender Offers

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DIFC Continues To Establish Its Arbitration-Friendly Credentials With Recent Amendment To DIFC Arbitration Law

Following a recent amendment to the Dubai International Financial Centre1 (DIFC) Arbitration Law, it is now clear that matters brought before the DIFC Courts which are governed by a valid arbitration agreement shall be stayed by…more

Arbitration, International Arbitration, Middle East

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Paths to African Partnerships

In recent years, African stars have soared. Governments, investors, and citizens have driven – and benefited from – booms in banking, construction, retail, and telecommunications. All along, of course, African states have…more

Africa, Economic Development, Infrastructure, Telecommunications

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Potential Circuit Split Creates an Uncertain Future for Whistleblower Protection of Internal Reporting: Asadi v. G.E. Energy (USA), LLC, (5th Cir. Jul. 17, 2013) versus Murray v. UBS Securities, LLC and UBS AG, (S.D.N.Y. May 21, 2013)

The Dodd-Frank Whistleblower Program - The Dodd-Frank Act amended the Securities Exchange Act of 1934 by creating protections and rewards for anyone who provides information that helps the SEC in enforcing the law…more

Conflicts of Laws, Dodd-Frank, SEC, Securities Exchange Act, Whistleblower Awards

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European Commission probes into national tax rulings on transfer pricing

The European Commission (“EC”) has long sought to eliminate so-called harmful tax competition, which it sees as undermining the integrity of the internal market, fair competition and the fiscal sustainability of the Member…more

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AIFMD in Germany: Strategies for non-EU AIFMs Marketing

Summary: - In conjunction with the implementation of the European Directive on Alternative Investment Fund Managers (2011/61/EU) (the “Directive” or “AIFMD”) the German legislature decided to abolish the private placement…more

AIFM, AIFMD, EU, Marketing, New Legislation

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Deadline Approaches – Non-EEA fund managers must consider their options

The Alternative Investment Fund Managers Directive (2011/61/EU) (the “Directive”) and the supplementary level 2 Regulation (EU) No 231/2013 (the “Regulation”) introduce an authorisation regime and centralised rulebook for the…more

AIFM, Alternative Investment Fund Managers Directive, Alternative Investment Funds, EEA, EU

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New Federal Antitrust Law Bill

On February 19, 2014, the Federal Executive Branch of Mexico submitted to the House of Representatives a bill to issue a new Federal Antitrust Law (Ley Federal de Competencia Económica) (the “Bill”) which, if approved, will…more

Antitrust Provisions, Mexico

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Summary of FERC Meeting Agenda - May 2013

Below are brief summaries of the agenda items for the Federal Energy Regulatory Commission’s May 16, 2013 meeting, pursuant to the agenda as issued on May 9, 2013. Agenda items E-3, E-13, E-17 have not been summarized as they…more

FERC, Geomagnetic Storms, Oil & Gas, Water

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Supreme Court confirms that legal advice privilege does not apply to communications with non-lawyers

The Supreme Court this week handed down judgment in the case of R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another, confirming that legal advice privilege does not extend to…more

Accountants, EU, Legal Advice Privilege, Tax Advice

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Massive Online Security Breach – Are You Reactive or Proactive?

A few weeks ago, a Russian cyber gang amassed around 1.2 billion user name and password credentials belonging to more than 500 million email addresses. This may be to date the largest cache of stolen data. The cyber gang…more

Cyber Attacks, Cybersecurity, Data Breach, Data Protection, Hackers

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Back in the game: The rise of US M&A

US M&A is bouncing back - After a tough few years, acquisitions in the United States have seen a remarkable resurgence - The first half of 2014 saw a great dealmaking revival in the United States. Deal values are…more

Acquisitions, Biotechnology, Buyouts, CFIUS, China

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Non-EU investment firms’ access to EU investors under MiFID 2

The recast Markets in Financial Instruments Directive (MiFID 2), along with its accompanying Regulation (MiFIR), were published in the Official Journal of the EU in June. The new legislation is currently expected to come into…more

Cross-Border Transactions, EU, Foreign Investment, International Harmonization, MiFID

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EEC Issues Draft Rule on Electronic Pre-Notification Procedure for Shipment by Rail

The Eurasian Economic Commission (the “EEC”) issued a draft decision on July 16, 2013 requiring electronic pre-notification for all goods shipped into the Customs Union (CU) by rail. The draft decision provides for entry into…more

Customs, EU, European Commission, Notifications, Proposed Regulation

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Brazil: the real deal?

As one of the BRICS economies, Brazil has long been touted as one of the world’s most dynamic emerging markets. It is the world’s seventh biggest economy, has a large domestic market thanks to a population of almost 200 million…more

Brazil, BRIC, Emerging Markets, Foreign Investment, Foreign Markets

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2014 Autumn Review – M&A Legal Developments

We set out below a number of interesting English and European court decisions which have taken place and their impact on M&A transactions. This Insight looks at these developments and gives practical guidance on their…more

Acquisitions, Arbitration, Arbitration Agreements, Contract Drafting, Contract Interpretation

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Global Investigations: Reading The Signals

As the global economy recovers, how will regulators respond? Experts provide perspectives on trends in regulatory and corporate investigations. Global trends in regulation - In the wake of the financial crisis,…more

Compliance, Cross-Border, Cross-Border Transactions, Enforcement, Foreign Policy

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Global Tax Report - September 2013: Intellectual Property Tax Planning

In This Issue: - United States: Benefits of Intangible Property Migrations - United Kingdom: Innovation: The Name of the Game - Germany: OECD’s Action Plan on Base Erosion and Profit Shifting (BEPS) Within the…more

Erosion, EU, Innovation, Intangible Property, Tax Planning

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Global Tax Report - September 2013: Intellectual Property Tax Planning

In This Issue: - United States: Benefits of Intangible Property Migrations - United Kingdom: Innovation: The Name of the Game - Germany: OECD’s Action Plan on Base Erosion and Profit Shifting (BEPS) Within the…more

Erosion, EU, Innovation, Intangible Property, Tax Planning

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First Circuit: Private Equity Fund May Be “Trade or Business” and Subject to Portfolio Company Pension Liabilities

The First Circuit Court of Appeals has recently held in Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund, No. 12-2312 (July 24, 2013), a case of first impression at the Circuit Court level,…more

Benefit Plan Sponsors, COBRA, ERISA, Investment Portfolios, Pensions

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European Commission’s proposal on banking structural reform - a Volcker Rule for Europe

On 29 January 2014, the European Commission published a legislative proposal for a Regulation on structural reforms to the EU banking sector (the “Proposed Regulation”). The Proposed Regulation advances the recommendations set…more

Banking Reform Bill, EU, European Commission, Financial Regulatory Reform, Foreign Banks

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Halliburton Co. v. Erica P. John Fund, Inc.: The US Supreme Court Confirms That Defendants in Securities Fraud Cases May Rebut Alleged Price Impact at the Class Certification Phase

The US Supreme Court’s decision in Halliburton Co. v. Erica P. John Fund, Inc., Slip op., No. 13-317 (Jun. 23, 2014), unanimously held that before certifying a class in a securities fraud case, federal courts must allow…more

Basic v Levinson, Class Action, Class Certification, Fraud, Fraud-on-the-Market

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EEC Issues Draft Rule on Electronic Pre-Notification Procedure for Shipment by Rail

The Eurasian Economic Commission (the “EEC”) issued a draft decision on July 16, 2013 requiring electronic pre-notification for all goods shipped into the Customs Union (CU) by rail. The draft decision provides for entry into…more

Customs, EU, European Commission, Notifications, Proposed Regulation

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Will the EU ETS Aviation Emissions Directive be Grounded?

The International Civil Aviation Organisation (ICAO) emerged on 4 October 2013 from its much-anticipated 38th General Assembly meetings in Montreal with what looks like a consensus on the use of market based mechanisms (MBM) for…more

Aviation Industry, Carbon Emissions, Environmental Policies, EU, EU ETS

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Zlomrex International Finance S.A. – completion of restructuring via Scheme of Arrangement

On 4 February 2014, our client, Zlomrex International Finance S.A. (“ZIF”), completed the restructuring of its approximately €118 million senior secured high yield notes due 2014 (the “Existing High Yield Bonds”). ZIF, a company…more

EU, Restructuring, UK

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The English Court of Appeal confirms the effectiveness of Certificates of Acceptance in aircraft leasing transactions

The Court of Appeal’s recent decision in Olympic Airlines SA (in special liquidation) v ACG Acquisition XX LLC [2013] EWCA Civ 369 gives welcome comfort to lessors that properly drafted Certificates of Acceptance will provide an…more

Airlines, Certificates of Acceptance, EU, Leases

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Back in the game: The rise of US M&A

US M&A is bouncing back - After a tough few years, acquisitions in the United States have seen a remarkable resurgence - The first half of 2014 saw a great dealmaking revival in the United States. Deal values are…more

Acquisitions, Biotechnology, Buyouts, CFIUS, China

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The new group actions law in France – A cause for concern for companies?

The French law on consumer rights, also referred to as the “Hamon law” (“loi Hamon”), was enacted on 17 March 2014. The introduction of group actions is one of the main innovations of this law. Companies must now…more

Anti-Competitive, Class Action, Consumer Rights Directive

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Patent Settlements as an endangered species: DG Comp’s latest Monitoring Exercise on Patent Settlements in Europe

Executive Summary - On 9 December 2013, DG Comp published its fourth report on the monitoring in Europe of patent settlements. Like its predecessors, the report welcomes the continuously low level of settlements that may…more

Antitrust Litigation, EU, Patent Litigation, Patents, Settlement

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EU publishes TTIP negotiating positions for five key sectors to increase transparency

On 14 May 2014, in the run-up to the fifth negotiating round taking place 19-23 May 2014 in the US, the European Commission has published its negotiating position in the ongoing Transatlantic Trade and Investment Partnership…more

Automotive Industry, Chemicals, Cosmetics, EU, Negotiations

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The new OHADA Uniform Act in a Nutshell

Legal integration in Francophone Africa results in particular from the “Uniform Acts” adopted by the Organization for the Harmonization of Business Law in Africa (“OHADA”), established by the Treaty signed in Port Louis…more

Africa, Economic Development, Foreign Policy, OHADA Treaty

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Tecnimont SPA v. J&P Avax: France’s highest court reinforces the legal status of arbitration rules

Last week, the French Cour de Cassation issued its long-awaited decision in the Tecnimont matter. It quashed a decision of the Reims Court of Appeal which had set aside an ICC award on the basis of lack of independence of the…more

Arbitration, Arbitration Agreements, EU, ICC

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2014 Autumn Review – M&A Legal Developments

We set out below a number of interesting English and European court decisions which have taken place and their impact on M&A transactions. This Insight looks at these developments and gives practical guidance on their…more

Acquisitions, Arbitration, Arbitration Agreements, Contract Drafting, Contract Interpretation

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China Amends Regulations on Supervision and Management of Medical Devices; Prior Marketing Approval Requirement to Import Medical Devices Remains Unchanged

On March 31, 2014, China Premier Mr.Li Kequiang signed Decree No. 650 on the amended Regulations on Supervision and Management of Medical Devices (“the amended regulations”), which update the original regulations1 released in…more

Amended Regulation, China, Imports, Marketing, Medical Devices

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European Court of Justice says the European Stability Mechanism (ESM) is compatible with EU law

In a judgment handed down today, in a preliminary reference from the Irish Supreme Court, in Thomas Pringle v The Government of Ireland, Ireland and the Attorney General (Case C-370/12), the Court of Justice of the European…more

European Stability Mechanism

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Challenging Major and Interested Party Transactions

On 16 May 2014 the Plenary Session of the Russian Supreme Commercial Court adopted Resolution No. 28 “On Certain Issues Related to Challenging Major and Interested Party Transactions.” In this Resolution, the Court…more

Corporate Sales Transactions, Interested Parties, Russia

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CLO Risk Retention: Late-Season Predictions

For college football fans, the regular season is drawing to an end, which means it is time for the pundits to start breaking out the bowl game predictions. Of course the experts never get it fully correct (who could have…more

Collateralized Debt Obligations, Dodd-Frank, Risk Retention

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The Perils of Not Showing Up: Default Judgment Entered Against Two Former Siemens Executives for Record US$1.46 Million in Combined Civil FCPA Penalties

On February 3, 2014, Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York issued a default judgment in U.S. Securities and Exchange Commission v. Sharef, et al. against two former Siemens AG…more

Civil Monetary Penalty, Default Judgment, Enforcement Actions, FCPA, SEC

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Back in the game: The rise of US M&A

US M&A is bouncing back - After a tough few years, acquisitions in the United States have seen a remarkable resurgence - The first half of 2014 saw a great dealmaking revival in the United States. Deal values are…more

Acquisitions, Biotechnology, Buyouts, CFIUS, China

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United States Tightens Sanctions Against Russian Financial, Defense, and Energy Sectors

On September 12, 2014, the United States issued another round of targeted sanctions against the Russian financial, defense, and energy sectors. Today’s measures were a combination of new measures and modifications of prior…more

Banking Sector, Defense Sector, Energy Sector, Russia, Sanctions

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Landmark judgment in Employment Appeal Tribunal case paves the way for incremental increases in holiday pay

The important judgment of the UK’s Employment Appeal Tribunal (the “EAT”) in Bear Scotland Ltd & ors v Fulton & ors, considered alongside Hertel (UK) Ltd v Wood & ors and Amec Group Ltd v Mr Law and ors, casts new light on the…more

Employee Rights, Holiday Pay, Paid Leave, UK

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2014 Autumn Review – M&A Legal Developments

We set out below a number of interesting English and European court decisions which have taken place and their impact on M&A transactions. This Insight looks at these developments and gives practical guidance on their…more

Acquisitions, Arbitration, Arbitration Agreements, Contract Drafting, Contract Interpretation

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Omnicom/Publicis: Lessons in How to Keep Merger Clearance Traps From Derailing Your Deal

Advertising giants Omnicom Group and Publicis Groupe called off their US$35 billion merger on May 8, 2014, terminating a transaction that would have created the largest advertising company in the world. Publicis chairman,…more

Advertising, Clearance, Mergers

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Back in the game: The rise of US M&A

US M&A is bouncing back - After a tough few years, acquisitions in the United States have seen a remarkable resurgence - The first half of 2014 saw a great dealmaking revival in the United States. Deal values are…more

Acquisitions, Biotechnology, Buyouts, CFIUS, China

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European Commission’s proposal on banking structural reform - a Volcker Rule for Europe

On 29 January 2014, the European Commission published a legislative proposal for a Regulation on structural reforms to the EU banking sector (the “Proposed Regulation”). The Proposed Regulation advances the recommendations set…more

Banking Reform Bill, EU, European Commission, Financial Regulatory Reform, Foreign Banks

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Turkcell Litigation – Another Victory for Cukurova: Privy Council confirms the terms for Cukurova to recover its interest in Turkcell

The Privy Council today delivered another crucial ruling in favour of White & Case’s client Cukurova, in its six-year battle to recover its controlling interest in Turkcell (Turkey’s largest mobile phone operator). The effect of…more

Alfa v Cukurova, Cell Phones, Foreign Corporations, Telecommunications, Turkcell

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Mining & Metals: Opportunity & Risk — Weathering the bottom of the cycle

Weathering the bottom of the cycle - Even the global resources giants have been forced to look inwardly and restructure more than just their business strategies in order to cope with the pressures of the prolonged…more

Metals, Minerals, Mining, Natural Resources

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Important changes to Italian mandatory tender offer Rules

The Decreto Competitività (as converted into Law with amendments, the “Decree”), published on August 20, 2014, in the Italian Official Gazette (Gazzetta Ufficiale della Repubblica Italiana), has made some important changes to…more

EU, New Regulations, Tender Offers

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Motorola Credit Corporation v. Standard Chartered Bank: The New York Court of Appeals Limits Restraints on Assets Held in Foreign Bank Branches

In Motorola Credit Corporation v. Standard Chartered Bank (“Motorola”), the New York Court of Appeals reaffirmed the “separate entity rule,” holding in a 5 – 2 opinion that a judgment creditor’s service of a restraining notice…more

Appeals, Asset Freeze, Banks, Foreign Subsidiaries, Judgment Creditors

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IRS Finalizes Regulations on Transfers of Derivative Contracts

The IRS has issued final regulations on the transfer or assignment of certain derivative contracts. A derivative is a financial instrument that is priced upon a derivation of the value of one or several underlying assets,…more

Derivatives, IRS, OTC, Transfers

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DOJ & FTC Release Cybersecurity Threat Information Exchange Policy

The US DOJ Antitrust Division and the FTC yesterday released a joint policy statement on the sharing of information between private parties, including competitors, to counter cybersecurity threats. The agencies acknowledge that…more

Cybersecurity, Data Protection, DOJ, FTC

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2014 Autumn Review – M&A Legal Developments

We set out below a number of interesting English and European court decisions which have taken place and their impact on M&A transactions. This Insight looks at these developments and gives practical guidance on their…more

Acquisitions, Arbitration, Arbitration Agreements, Contract Drafting, Contract Interpretation

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Motorola Credit Corporation v. Standard Chartered Bank: The New York Court of Appeals Limits Restraints on Assets Held in Foreign Bank Branches

In Motorola Credit Corporation v. Standard Chartered Bank (“Motorola”), the New York Court of Appeals reaffirmed the “separate entity rule,” holding in a 5 – 2 opinion that a judgment creditor’s service of a restraining notice…more

Appeals, Asset Freeze, Banks, Foreign Subsidiaries, Judgment Creditors

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EP III: an open pit for finance? The impact of the Equator Principles on the industry’s environmental and social performance

The Equator Principles (EP) is a risk management framework, adopted by financial institutions, for determining, assessing and managing environmental and social risk. EP applies globally to all industry sectors and covers project…more

Equator Principles, Project Finance, Risk Management, Sustainable Business Practices

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Delaware Court Decides Damages in Breach of Fiduciary Duty Aiding and Abetting Case

In March 2014, Vice Chancellor Laster of the Court of Chancery of the State of Delaware issued an opinion finding Rural/Metro Corporation’s lead financial advisor liable for aiding and abetting breaches of fiduciary duty by…more

Aiding and Abetting, Breach of Duty, Fiduciary Duty

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Qatar Financial Centre Regulatory Authority adopts new rules for the acquisition of significant ownership positions in QFC authorised firms

Key highlights: - QFCRA must approve a change of control, whether in direct shareholding or at a parent level, with key thresholds set at 10%, 24%, 49% and 74% of voting rights or shares. - When exceeding the 49%…more

Change of Ownership, Middle East, Shareholder Votes, Shareholders

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SAFE Cross-Border Security Rules Finally Released

The State Administration of Foreign Exchange of the PRC (“SAFE”) formally released on 19 May 2014 the Foreign Exchange Administration Rules on Cross-border Security together with its operation guidelines (the “New Rules”). The…more

Border Security, Cross-Border, Customs and Border Protection, Immigrants, SAFE

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EU High Court Strikes Down Data Retention Law

On April 8, 2014, the highest court in the European Union invalidated an EU law that required telephone and electronic communications providers to retain user data for up to two years…more

Data Mining, Data Retention, Electronic Communications, Electronically Stored Information, EU

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Regulating buyout financial leasing based on the credit model: Clarifications provided by the Plenum of the Russian Supreme Commercial Court

This alert analyses key changes in the regulation of buyout financial leasing, as adopted by the Plenum of the Supreme Commercial Court of the Russian Federation (the “SSC”) in its Resolution No. 17, dated 14 March 2014, “On…more

Buyouts, Finance Lease Contract, Russia

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Myanmar accedes to New York Convention

Summary - On July 15, 2013, Myanmar acceded to the New York Convention on the Recognition of Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”). The next step is for Myanmar’s parliament to implement…more

Arbitration, Arbitration Awards, Foreign Jurisdictions, New York Convention

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Private placements: tapping the US market

European corporates are turning to the US private placement market in growing numbers, as they seek to broaden and diversify their sources of funding while locking in some attractively priced long-term debt. When Smith &…more

EU, Foreign Investment, Investors, Private Placements, Securities Act of 1933

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Ukraine and US Energy Export Restrictions: Will Geopolitics Bring Reform?

The situation in Ukraine has intensified political and media scrutiny of the United States’ restrictions on the export of crude oil and liquefied natural gas (LNG). With supplies of Russian energy to Ukraine and Europe at risk,…more

Energy, Export Controls, Exports, Liquid Natural Gas, Natural Gas

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Structuring Energy and Natural Resource Investments into Sub Saharan Africa

An improving investment climate - Perceptions of Africa as an investment destination are changing rapidly and parts of Africa are increasingly considered very attractive for foreign direct investment. Compare this to…more

Africa, Consumer Financial Products, Energy Sector, Foreign Investment, Natural Resources

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Class actions: now in Belgium

Class actions are a hot topic in Europe, and elsewhere. Various European countries have introduced, or are in the process of introducing, class action mechanisms. At the European Union level a similar development is noticeable,…more

Class Action, EU

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WTO Dispute Settlement—Long Delays Hit the System

- A recent increase in World Trade Organization (WTO) cases has strained resources in the WTO Secretariat and led to a notable slowdown in the dispute settlement process. In 2012, the WTO received the highest number of…more

International Trade Disputes, Settlement, WTO

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AIFMD: Update for non-EEA fund managers

From 22 July 2013, the Alternative Investment Fund Managers Directive (2011/61/EU) (the “Directive”) and the supplementary level 2 Regulation (EU) No 231/2013 (the “Regulation”) will come into effect. This legislation will…more

AIFM, AIFMD, Disclosure Requirements, EEA, EU

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Class actions: now in Belgium

Class actions are a hot topic in Europe, and elsewhere. Various European countries have introduced, or are in the process of introducing, class action mechanisms. At the European Union level a similar development is noticeable,…more

Class Action, EU

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Business, Trade & Competition: China Bulletin - October 2013

In This Issue: - All Eyes on the Shanghai Free Trade Zone - China and Korea Progress to Second Phase of Bilateral FTA Negotiations; Intersection of RCEP and TPP Remains Key Area of Interest - Excerpt from All…more

China, Free Trade Agreement, Free Trade Zone, MOFCOM, Trans-Pacific Partnership

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Prorated Expenses, Finally Deductible

As of October 17, 2014, expenses incurred abroad on a prorated basis with parties that are not income tax payers in Mexico will be fully deductible to the extent certain requirements are met. The foregoing is pursuant to a new…more

Income Taxes, Mexico, Tax Deductions

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Mayo V Prometheus: Another Guidepost on the Road to Determining Patentability in the Post-Industrial Age by Jane Plomley and Robert Counihan

Originally published in Bio-Science Law Review - November 2012. On 20 March 2012, in Mayo Collaborative Servs v Prometheus Labs, Inc., the Supreme Court of the United States invalidated diagnostic treatment process…more

Mayo v. Prometheus, Myriad, Patents

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A Rose by any Other Name: DOJ’s FCPA Unit Brings Fraud and Money Laundering Charges Against Bechtel Executive

The variety of charges recently brought by the US Department of Justice’s (DOJ) Foreign Corrupt Practices Act (FCPA) Unit against former Bechtel executive Asem Elgawhary signals that the DOJ is not only pursuing improper…more

Anti-Money Laundering, Bechtel, DOJ, FCPA, Fraud

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Turkcell Litigation – Another Victory for Cukurova: Privy Council confirms the terms for Cukurova to recover its interest in Turkcell

The Privy Council today delivered another crucial ruling in favour of White & Case’s client Cukurova, in its six-year battle to recover its controlling interest in Turkcell (Turkey’s largest mobile phone operator). The effect of…more

Alfa v Cukurova, Cell Phones, Foreign Corporations, Telecommunications, Turkcell

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New Court Ruling Permits Adjudication Claims under a Collateral Warranty

For decades, contractors and consultants have been giving collateral warranties to relevant third parties on UK construction projects. However, in a recent unexpected development, in the case of Parkwood Leisure Limited v Laing…more

Adjudicatory Process, Construction Contracts, UK, Warranties

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Market shake-up is driving financial institutions M&A - As the global economy shows promising signs of recovery, M&A deals in the financial services sector are set to pick up

Bright outlook despite the dark clouds - Tighter controls and sell-offs by banks form the backdrop to an exciting financial services M&A market as the global economy continues to recover: The regulatory tidal wave…more

Banks, Capital Markets, EU, Financial Institutions, Financial Markets

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Enhanced Prudential Standards for Foreign Banking Organizations: The US Approach to Ring-Fencing

The Board of Governors of the Federal Reserve System (“Board”) on February 18, 2014 adopted a final rule (“Final Rule”) to implement enhanced capital, liquidity and other prudential standards for foreign banks with US branches,…more

Dodd-Frank, Federal Reserve, Foreign Banks

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Foreign Banking Organizations Granted Benefit of Swaps Push-Out Rule and Transition Period

The Board of Governors of the Federal Reserve System ("Board") on December 24, 2013, issued final rules ("Final Rules") to include the uninsured US branches and agencies of foreign banks in the definition of "insured depository…more

Dodd-Frank, FDIC, Foreign Banks, Push-Out Requirements, Section 716

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The Return of the Leveraged Loan Market

Increased confidence and appetite for risk developed in 2013 and has continued at pace into Q1 2014. 2013 brought us the highest annual new-issue loan volume in five years. This translated to an impressive year-on-year increase…more

EU, International Finance, Japan, Leveraged Loans, Portability

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Overview of Recent Trends in Warranty Insurance in M&A Transactions

In the current economic climate, the appetite of purchasing parties to take on risk in an M&A transaction has greatly decreased. At the same time, sellers remain under intense pressure to contain outstanding liabilities, and…more

Asset Purchaser, Corporate Sales Transactions, Due Diligence, Liability, Risk Management

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DOJ & FTC Release Cybersecurity Threat Information Exchange Policy

The US DOJ Antitrust Division and the FTC yesterday released a joint policy statement on the sharing of information between private parties, including competitors, to counter cybersecurity threats. The agencies acknowledge that…more

Cybersecurity, Data Protection, DOJ, FTC

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Statute of Limitations for Government Enforcement Actions Seeking Civil Penalties Starts When Conduct Occurs, Not When Discovered

In Gabelli v. SEC, 568 US ___ (2013), a unanimous Supreme Court reversed the Second Circuit and held that the five-year statute of limitations for Government civil penalty enforcement actions under 28 U.S.C. §2642 begins to run…more

Discovery Rule, Fraud, Gabelli v SEC, SCOTUS, SEC

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Navigating India: Lessons for foreign investors

Foreign companies that learn from the experience of previous investors can navigate the challenges of investing in India. Optimism for doing business in India is rising. Enthusiasm rocketed when Narendra Modi was elected…more

Economic Development, Foreign Investment, India

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US federal agencies to seek expanded Clean Water Act regulatory jurisdiction over aggregate mines and farmlands

The US Environmental Protection Agency (“EPA”) and the US Army Corps of Engineers (“Corps”) are poised to propose a new rule that would significantly expand their regulatory jurisdiction under the Clean Water Act. While many…more

Clean Water Act, Environmental Policies, EPA, Farms, Mining

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Back in the game: The rise of US M&A

US M&A is bouncing back - After a tough few years, acquisitions in the United States have seen a remarkable resurgence - The first half of 2014 saw a great dealmaking revival in the United States. Deal values are…more

Acquisitions, Biotechnology, Buyouts, CFIUS, China

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DIFC Courts open consultation regarding amendments to the Rules of the DIFC Courts

The Dubai International Financial Centre (DIFC) Courts have opened up a month-long consultation regarding proposed amendments to the Rules of the DIFC Courts (the “RDC”). A proposed amendment of particular interest relates to…more

Arbitration, DIFC, Enforcement, Middle East, Proposed Amendments

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United States Tightens Sanctions Against Russian Financial, Defense, and Energy Sectors

On September 12, 2014, the United States issued another round of targeted sanctions against the Russian financial, defense, and energy sectors. Today’s measures were a combination of new measures and modifications of prior…more

Banking Sector, Defense Sector, Energy Sector, Russia, Sanctions

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What next for Guinea’s regulation? Tracking the evolution of the Guinean mining code against the ups and downs of the global mining industry

On April 9, 2013, the Republic of Guinea enacted amendments to its 2011 mining code, with the aim of reinforcing the message to international investors that Guinea is open for business. In a press statement, the Guinean minister…more

Economic Development, Minerals, Mining, Natural Resources, New Legislation

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A Tale Of Two Debtors: Lehman Brothers And The Availability Of Equitable Subordination In The “Dueling Debtor” Context

Originally published in the NYU Journal of Law & Business - Vol. 9:269, 2012. This article suggests that the generally accepted “offensive/defensive” standard used by bankruptcy courts to determine whether a debtor may…more

Automatic Stay, Debtors, Dueling Debtor, Enron, Equitable Subordination

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Recent Practical Effects of “Just Saying No”

In the past few months, we have seen an increasing number of hostile or unsolicited M&A bids where boards of directors of target companies have resisted bidders’ advances. Traditionally, the board-friendly Delaware approach,…more

AstraZeneca, Board of Directors, Business Judgment Rule, Delaware General Corporation Law, Fiduciary Duty

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Structuring Energy and Natural Resource Investments into Sub Saharan Africa

An improving investment climate - Perceptions of Africa as an investment destination are changing rapidly and parts of Africa are increasingly considered very attractive for foreign direct investment. Compare this to…more

Africa, Consumer Financial Products, Energy Sector, Foreign Investment, Natural Resources

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California Passes Student Data Privacy Law

On September 29, 2014, California Governor Jerry Brown, signed a bill into law that mandates the protection of the personal data of school children that use online educational programs. The Student Online Personal Information…more

For Profit Education, Internet Privacy, Jerry Brown, Mobile Privacy, New Legislation

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Reform of French Insolvency Law Overview of The Executive Order of 12 March 2014

Executive Order n° 2014-326 of 12 March 2014 reforming French insolvency proceedings was published in the Official Journal of the French Republic (Journal officiel de la République Française) on 14 March 2014. Considered…more

Commercial Bankruptcy, EU, Insolvency

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State court ruling creates new uncertainty for DMCA safe harbors

A New York state court has ruled that a DMCA safe harbor does not protect internet services from claims they infringe pre-1972 sound recordings. The decision, UMG Recordings v. Escape Media Group, creates new uncertainty and…more

Copyright, Copyright Infringement, DMCA, Internet Service Providers, Safe Harbors

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ParkCentral v. Porsche: The Second Circuit Signals New Lines of Defense to Extraterritorial Securities Fraud Claims

In ParkCentral Global Hub Ltd. v. Porsche Automobile Holdings SE (“ParkCentral”), the US Court of Appeals for the Second Circuit held that domestic securities transactions that did not involve the foreign defendant, whose…more

Extraterritoriality Rules, Fraud, Porsche, Securities Exchange Act, Securities Fraud

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FTC Announces Annual Changes to HSR Thresholds

On January 17, 2014, the Federal Trade Commission (FTC) announced the annual changes to the Hart-Scott-Rodino (HSR) Act notification thresholds. The FTC is required to revise the jurisdictional thresholds annually, based on the…more

FTC, Hart-Scott-Rodino Act

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Indonesia’s New Insurance Law

On 23 September 2014, Indonesia’s parliament (the “DPR”) passed the insurance bill into law (the “New Insurance Law”). The New Insurance Law is awaiting the signature of the President and therefore has not been officially…more

Insurance Reform

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Russian Legislation Update

In This Issue: - Concession Agreements - Energy - Corporate/Civil Code Reform: Notarial Certification on the Decisions by the General Meeting of a Company’s Participants and on the List of the Attended Participants…more

Concession Agreements, Energy Policy, Legislative Agendas, Russia

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‘Flip-Up Pre-Packs’ – A new approach to accessing the UK insolvency regime

The UK has long-since established itself as a jurisdiction of choice for complex cross-border restructurings involving corporate groups whose principal operations are overseas. Typically, the English Court has accepted…more

Commercial Bankruptcy, Cross-Border, Foreign Corporations, Insolvency, Jurisdiction

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California Attorney General Issues Privacy Policy Guide

On May 21, 2014, California's Attorney General Kamala D. Harris issued the "Making Your Privacy Practices Public" guide (the "Guide") to provide businesses with guidance on creating more transparent privacy policies that comply…more

CalOPPA, Data Protection, Disclosure Requirements, Do Not Track, Internet

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Data Center Industry Investment- Trends and Opportunities

Advances in technology have helped to spur the data center industry's growth. James Dodsworth, Partner at White & Case, a leading law firm to the data center industry, discusses current trends and investment opportunities,…more

Cloud Computing, Data Centers, Investors, Risk Mitigation

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The Emerging Risks of Unauthorized IP in Your Supply Chain and How You Should Respond

I. Introduction - Most global companies manage their supply chains to avoid supply disruptions and to address environmental, labor, and health and safety concerns, among others, but these same companies are often not…more

Counterfeiting, Damages, FTC, Imports, Infringement

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Reform of French Insolvency Law Overview of The Executive Order of 12 March 2014

Executive Order n° 2014-326 of 12 March 2014 reforming French insolvency proceedings was published in the Official Journal of the French Republic (Journal officiel de la République Française) on 14 March 2014. Considered…more

Commercial Bankruptcy, EU, Insolvency

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DOJ & FTC Release Cybersecurity Threat Information Exchange Policy

The US DOJ Antitrust Division and the FTC yesterday released a joint policy statement on the sharing of information between private parties, including competitors, to counter cybersecurity threats. The agencies acknowledge that…more

Cybersecurity, Data Protection, DOJ, FTC

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Challenging Major and Interested Party Transactions

On 16 May 2014 the Plenary Session of the Russian Supreme Commercial Court adopted Resolution No. 28 “On Certain Issues Related to Challenging Major and Interested Party Transactions.” In this Resolution, the Court…more

Corporate Sales Transactions, Interested Parties, Russia

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Which way forward for the sovereign debt crisis? Six thought leaders in sovereign debt restructuring share their observations of the current situation and provide guidance on the complex challenges ahead

A crisis far beyond anything experienced in recent memory - The way in which regulators, investors, banks and governments respond to the current sovereign debt challenges will echo for many years. Decisions made today…more

Banking Crisis, Banking Sector, Bonds, Debt Ceiling, Debt Restructuring

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To enforce or not to enforce, a question for the English courts - July 2014

In the latest instalment of the Yukos v Rosneft saga (covered previously in our 2012 Alert), the English High Court considered whether an award set aside (annulled) at the seat of arbitration can nevertheless be enforced in…more

Arbitration, Enforcement, Enforcement Actions, UK

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Global HR Hot Topic—November 2014: Employment Law Toolkit for Cross-Border M&A Deals

Some years ago, a leading London corporate lawyer told The New York Times that in "merging two regular companies...you just do it and sort out the people issues afterwards." (A. Sorkin, "A Lawyer's Lawyer: Bridging Borders,"…more

Compliance, Cross-Border, Due Diligence, EU, Mergers

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Pulling the Purse Strings: Ukraine Forum on Asset Recovery Pursues Funds of Former Senior Government Officials

Led by the United States and the United Kingdom, the international community met this week to take steps to trace assets allegedly stolen through corruption by former Ukrainian leaders and return them to Ukraine. Senior…more

Corruption, Foreign Official, Russia, Ukraine

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What Does the Future Hold in View of the Supreme Court Decision on Isolated Genes and cDNA?

In a long-anticipated ruling, the US Supreme Court acknowledged Myriad Genetics’ contribution in discovering the location and sequence of the BRCA1 and BRCA2 genes but concluded that “Myriad did not create anything” when it…more

AMP v Myriad, DNA, Human Genes, Myriad, Patent-Eligible Subject Matter

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2014 – The times they are a-changin’

While some of us are old enough to remember the heady days of straight forward senior/mezzanine deals (sometimes with a PIK thrown in for good measure), it is clear that in the current market you can no longer predict what type…more

Capital Markets, EU, Mezzanine Lenders, Regulatory Standards, Structured Financial Products

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Courts Differ on Enforceability of Unilaterally Adopted Forum Selection Bylaws

While forum selection bylaws have become increasingly popular with US public companies, courts in Delaware and Oregon recently came to opposite conclusions on whether such bylaws, when unilaterally adopted by a board of…more

Board of Directors, Bylaws, Fiduciary Duty, Fiduciary Liability, Forum Selection Clause

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Enhanced Protection for Retail Investors in the Financial Sector in Belgium: Pre-Contractual Information Requirements and Risk Label

After the approval by Royal Decree of the Regulation of the Belgian Financial Services and Markets Authority (the “FSMA”) banning the distribution of certain non-mainstream financial products to retail clients (see here), two…more

EU, Financial Regulatory Reform, FSMA, Investors, Labeling

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Keeping it simple – the Unitranche demystified

One of the main exam strategies available to the struggling pupil is to pepper an essay with long words, giving complex names to simple ideas. Are you proposing to consider both sides of an argument, or are you viewing the…more

Borrowers, EU, Lenders, Loans, Unitranche Loans

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Foreign Investment in Multi-Brand Retail Trading in India: Government issues clarifications

In September 2012, the Government of India (GoI) permitted foreign direct investment (FDI) up to 51% of the equity of Indian entities engaged in multi-brand retail trading (MBRT) in India (see our earlier alert of October…more

Foreign Investment, India, Infrastructure, Local Sourcing, MBRT

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Paths to African Partnerships

In recent years, African stars have soared. Governments, investors, and citizens have driven – and benefited from – booms in banking, construction, retail, and telecommunications. All along, of course, African states have…more

Africa, Economic Development, Infrastructure, Telecommunications

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The bond breakthrough

In November 2012, Barclays raised a US$3bn corporate bond with a difference. The bank issued a contingent capital note (or coco) – a bond that automatically converts into equity as soon as a bank incurs losses that reduce its…more

Barclays, Capital Losses, Corporate Bonds, Deutsche Bank, EU

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Global Investigations: Reading The Signals

As the global economy recovers, how will regulators respond? Experts provide perspectives on trends in regulatory and corporate investigations. Global trends in regulation - In the wake of the financial crisis,…more

Compliance, Cross-Border, Cross-Border Transactions, Enforcement, Foreign Policy

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Mitigating the “Vitro Effect”: Mexican Lawmakers Approved the Most Ambitious Bankruptcy Law Reform Since its Enactment back in 2000, Aiming to Ensure Creditors’ Rights

On January 10, 2014, the Federal Executive Branch of México published in the Official Gazette the legal amendments to México’s Commercial Bankruptcy Law (Ley de Concursos Mercantiles, or LCM), effecting the most comprehensive…more

Bankruptcy Reform, Creditors, Mexico

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Back in the game: The rise of US M&A

US M&A is bouncing back - After a tough few years, acquisitions in the United States have seen a remarkable resurgence - The first half of 2014 saw a great dealmaking revival in the United States. Deal values are…more

Acquisitions, Biotechnology, Buyouts, CFIUS, China

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AIPPI's resolution on "IP Licensing and Insolvency": Will this re-ignite legislative initiatives in Germany?

During its 44th congress in Toronto, on September 17, 2014, the International Association for the Protection of Intellectual Property (AIPPI) adopted a resolution on "IP Licensing and Insolvency". The resolution regarding…more

Germany, Insolvency, License Agreements

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Mitigating the “Vitro Effect”: Mexican Lawmakers Approved the Most Ambitious Bankruptcy Law Reform Since its Enactment back in 2000, Aiming to Ensure Creditors’ Rights

On January 10, 2014, the Federal Executive Branch of México published in the Official Gazette the legal amendments to México’s Commercial Bankruptcy Law (Ley de Concursos Mercantiles, or LCM), effecting the most comprehensive…more

Bankruptcy Reform, Creditors, Mexico

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An alternative to the anti-suit injunction? Supreme Court considers ability to obtain damages for EU proceedings brought in breach of an exclusive jurisdiction clause

In the landmark decision Alexandros T [2013] UKSC 70, the Supreme Court has held that, where parties have agreed that disputes between them will be resolved exclusively by the English courts, a party can seek damages for breach…more

Anti-Suit Injunctions, EU, Exclusive Jurisdiction, Injunctions, SCOTUS

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South Africa Issues Draft Bill on Investment Protection without General Recourse to International Arbitration for Foreign Investors

On 1 November 2013, the South African Department of Trade and Industry made public a draft "Promotion and Protection of Investment Bill" (the "Draft Bill"). The Draft Bill is intended to promote investment by modernizing the…more

Africa, Arbitration, Bilateral Investment Treaties, Foreign Investment, International Arbitration

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ParkCentral v. Porsche: The Second Circuit Signals New Lines of Defense to Extraterritorial Securities Fraud Claims

In ParkCentral Global Hub Ltd. v. Porsche Automobile Holdings SE (“ParkCentral”), the US Court of Appeals for the Second Circuit held that domestic securities transactions that did not involve the foreign defendant, whose…more

Extraterritoriality Rules, Fraud, Porsche, Securities Exchange Act, Securities Fraud

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Supreme Court Issues Two "High-Octane" Decisions to Address Abusive Patent Litigation Practices

Yesterday, the United States Supreme Court handed down two pivotal opinions redefining the standard for obtaining attorney's fees in patent cases. The opinions provide alleged infringers with the increased possibility of…more

Attorney's Fees, Highmark v. Allcare, Octane Fitness v. ICON, Patent Infringement, Patent Litigation

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CLO Risk Retention: Late-Season Predictions

For college football fans, the regular season is drawing to an end, which means it is time for the pundits to start breaking out the bowl game predictions. Of course the experts never get it fully correct (who could have…more

Collateralized Debt Obligations, Dodd-Frank, Risk Retention

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2014 – The times they are a-changin’

While some of us are old enough to remember the heady days of straight forward senior/mezzanine deals (sometimes with a PIK thrown in for good measure), it is clear that in the current market you can no longer predict what type…more

Capital Markets, EU, Mezzanine Lenders, Regulatory Standards, Structured Financial Products

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New Technology Transfer Agreements Regime to kick in from 1 May: caution needed for the few areas that have changed

After two public consultations in 2011 and 2013, and reportedly much internal debate, the European Commission’s new regime for the assessment of technology transfer agreements under EU competition law, which was adopted last…more

European Commission, Technology Transfer Agreements

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United States Tightens Sanctions Against Russian Financial, Defense, and Energy Sectors

On September 12, 2014, the United States issued another round of targeted sanctions against the Russian financial, defense, and energy sectors. Today’s measures were a combination of new measures and modifications of prior…more

Banking Sector, Defense Sector, Energy Sector, Russia, Sanctions

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Important changes to Italian mandatory tender offer Rules

The Decreto Competitività (as converted into Law with amendments, the “Decree”), published on August 20, 2014, in the Italian Official Gazette (Gazzetta Ufficiale della Repubblica Italiana), has made some important changes to…more

EU, New Regulations, Tender Offers

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Restructuring & Beyond: The marine industry’s routes to safety: Survival strategies and new opportunities for companies, banks and investors in the marine sector

Shipping has its fortunes anchored to the health of the global economy. As long as supply exceeds demand, there will be companies at risk of failure. More than four years into the industry’s downturn, market equilibrium is…more

Shipping

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Federal Court Rules Business Method Patent Invalid Post-Alice

On September 2, 2014, the District Court for the Eastern District of Texas ruled in the case of Loyalty Conversion Systems Corporation v. American Airlines, Inc. that the plaintiff's business method patents concerning customer…more

Airlines, American Airlines, CLS Bank v Alice Corp, Corporate Counsel, Covered Business Method Patents

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3D Printing—implications on Intellectual Property Rights ("IP rights")

Is there a new era beginning with the availability of low-cost 3D printers? Not so long ago it was unimaginable that people could print products they needed by themselves. They used to have to go to the supermarket or order them…more

3-D Printing Technology, Copyright, Infringement, Patents, Trademarks

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Strengthening rights of aggrieved parties in criminal proceedings - Major changes in connection with the new Act on Victims of Crime

As of August 1, 2013, Act No. 45/2013 Coll., on Victims of Crime and Amendments to Certain Other Acts, entered into force. The purpose of the Act is to regulate the rights of victims of crime – natural persons, and to provide…more

Crime Victims, Criminal Proceeds, Criminal Prosecution, EU, New Legislation

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FSA’s Proposal to Amend the Existing Laws and Regulations with respect to Short Sales

On March 7, 2013, the Financial Services Agency of Japan (the “Japan FSA”) announced that it is considering amending certain aspects of the existing rules and regulations governing short sales by November 2013. This Client Alert…more

Japan, Japan FSA, Short Sales, Triggering Event, Uptick Rule

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Germany's Draft Bill on IT Security

On August 19, 2014, the German Federal Ministry of the Interior ("GMI") proposed a new bill to increase the security of IT systems (the "Draft Bill"). As contemplated in the White & Case Technology Newsflash of December 2013[2],…more

Cybersecurity, Proposed Legislation

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Washington Energy Update - February/March 2013

In This Issue: - Energy Highlights - Just the Facts: FERC Dismisses Third-Party Complaint of Alleged Reliability Standards Violations Due to an Insufficient Evidentiary Record - FERC Holds a Firm Line on…more

FERC, Mitigation

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Energy Reform With Respect to Hydrocarbons

This Client Alert has the purpose of briefly analyzing the key provisions of the Hydrocarbons Act (the “Act” or the “HA”) and the Hydrocarbon Revenues Act (the “HRA” or, together with the HA, the “Hydrocarbon…more

Energy, Energy Reform, HRA, Mexico, Oil & Gas

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Global Tax Report - September 2013: Intellectual Property Tax Planning

In This Issue: - United States: Benefits of Intangible Property Migrations - United Kingdom: Innovation: The Name of the Game - Germany: OECD’s Action Plan on Base Erosion and Profit Shifting (BEPS) Within the…more

Erosion, EU, Innovation, Intangible Property, Tax Planning

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DOJ & FTC Release Cybersecurity Threat Information Exchange Policy

The US DOJ Antitrust Division and the FTC yesterday released a joint policy statement on the sharing of information between private parties, including competitors, to counter cybersecurity threats. The agencies acknowledge that…more

Cybersecurity, Data Protection, DOJ, FTC

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Supreme Court Issues Ruling on Aereo and the Public Performance Right

On June 25, 2014, the US Supreme Court reversed a decision of the Second Circuit and held that Aereo publicly performs copyrighted television programming. The case has important implications for the public performance right…more

ABC, ABC v Aereo, Aereo, Broadcasting, Copyright

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SEC Proposes Rules on Pay Ratio Disclosure

On September 18, 2013, the Securities and Exchange Commission (the “SEC”) approved by a three-to-two vote proposed rules (the “Proposed Rules”) implementing Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer…more

Annual Filings, Annual Reports, CEOs, Disclosure Requirements, Dodd-Frank

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To enforce or not to enforce, a question for the English courts - July 2014

In the latest instalment of the Yukos v Rosneft saga (covered previously in our 2012 Alert), the English High Court considered whether an award set aside (annulled) at the seat of arbitration can nevertheless be enforced in…more

Arbitration, Enforcement, Enforcement Actions, UK

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Koontz v. St. Johns River Water Management District - No. 11-1447, 570 U.S. __ (2013)

On June 25, 2013, the US Supreme Court issued a decision clarifying the limitations the constitution places on the power of governments to exact concessions from property owners when issuing development permits. It confirmed…more

Dolan v City of Tigard, Fifth Amendment, Koontz v St John's River Water Management, Land Developers, Nexus

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Energy Reform With Respect to Hydrocarbons

This Client Alert has the purpose of briefly analyzing the key provisions of the Hydrocarbons Act (the “Act” or the “HA”) and the Hydrocarbon Revenues Act (the “HRA” or, together with the HA, the “Hydrocarbon…more

Energy, Energy Reform, HRA, Mexico, Oil & Gas

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Delaware Court Decides Damages in Breach of Fiduciary Duty Aiding and Abetting Case

In March 2014, Vice Chancellor Laster of the Court of Chancery of the State of Delaware issued an opinion finding Rural/Metro Corporation’s lead financial advisor liable for aiding and abetting breaches of fiduciary duty by…more

Aiding and Abetting, Breach of Duty, Fiduciary Duty

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Energy Reform With Respect to Hydrocarbons

This Client Alert has the purpose of briefly analyzing the key provisions of the Hydrocarbons Act (the “Act” or the “HA”) and the Hydrocarbon Revenues Act (the “HRA” or, together with the HA, the “Hydrocarbon…more

Energy, Energy Reform, HRA, Mexico, Oil & Gas

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The new group actions law in France – A cause for concern for companies?

The French law on consumer rights, also referred to as the “Hamon law” (“loi Hamon”), was enacted on 17 March 2014. The introduction of group actions is one of the main innovations of this law. Companies must now…more

Anti-Competitive, Class Action, Consumer Rights Directive

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JCAA Rules Revisited

New JCAA Rules of Commercial Arbitration recently have been released after a review and amendment process that began in July 2012. The JCAA Rules last were amended in 2008, and the new rules took effect on February 1, 2014. They…more

Arbitration, Commercial Arbitration, Japan

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Mitigating the “Vitro Effect”: Mexican Lawmakers Approved the Most Ambitious Bankruptcy Law Reform Since its Enactment back in 2000, Aiming to Ensure Creditors’ Rights

On January 10, 2014, the Federal Executive Branch of México published in the Official Gazette the legal amendments to México’s Commercial Bankruptcy Law (Ley de Concursos Mercantiles, or LCM), effecting the most comprehensive…more

Bankruptcy Reform, Creditors, Mexico

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Summary of FERC Meeting Agenda - November 2014

In This Issue: - Administrative Items - Electric Items - Gas Items - Hydro Items - Excerpt from Hydro Items: H-1: Hydraco Power, Inc. and Warren David Long (Docket No. P-12588-010) - On…more

Electricity, Energy Projects, Energy Sector, FERC, Natural Gas

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Caveat Emptor: Five Steps to Avoid FCPA Successor Liability in M&A

Anti-corruption due diligence has become increasingly common in the M&A context. But when such pre-acquisition diligence identifies possible improper payments to foreign government officials or other red flags, what is the best…more

DOJ, Due Diligence, FCPA, FCPA Guidance, Popular

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DC Circuit Requires Committee on Foreign Investment in the United States to Provide Due Process Protections to Investors

On July 15, 2014, the US Court of Appeals for the District of Columbia (DC Circuit) ruled that if the President, pursuant to his powers under the Exon-Florio Amendment to the Defense Production Act of 1950 (DPA), deprives a…more

Appeals, Barack Obama, CFIUS, Divestiture, Due Process

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Copyright Holders Cannot Prevent Links to Freely-Available Content from Being Posted Online

The Svensson case is a landmark decision by the European Court of Justice ("ECJ") that enshrines the right to create clickable links towards copyrighted content which is freely available on the internet. The ECJ ruled that such…more

Copyright, Copyright Infringement, ECJ, EU, Fair Use

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The CFTC Issues Interim Final Rules Extending the Time for Compliance with Certain Business Conduct and Documentation Requirements for Swap Dealers and Major Swap Participants

On December 18, 2012, the US Commodity Futures Trading Commission’s (the “Commission”) approved interim final rules (the “Interim Final Rules”) for swap dealers (“SDs”) and major swap participants (“MSPs”) that delay compliance…more

CFTC, Dodd-Frank, Major Swap Participants, Required Documentation, Swap Dealers

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US federal agencies to seek expanded Clean Water Act regulatory jurisdiction over aggregate mines and farmlands

The US Environmental Protection Agency (“EPA”) and the US Army Corps of Engineers (“Corps”) are poised to propose a new rule that would significantly expand their regulatory jurisdiction under the Clean Water Act. While many…more

Clean Water Act, Environmental Policies, EPA, Farms, Mining

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Pulling the Purse Strings: Ukraine Forum on Asset Recovery Pursues Funds of Former Senior Government Officials

Led by the United States and the United Kingdom, the international community met this week to take steps to trace assets allegedly stolen through corruption by former Ukrainian leaders and return them to Ukraine. Senior…more

Corruption, Foreign Official, Russia, Ukraine

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Latin American Truth Commissions: Confronting the Past - A comparative assessement of truth and reconciliation commissions in Argentina, Chile, Colombia, Guatemala and Peru

We live in a multipolar world, where development and investment alike require reliable mechanisms for conflict resolution—to confront past problems and neutrally resolve future disputes. Latin America is a vibrant…more

Conflict Resolution, Human Rights, Latin America, Reconciliation

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Contingencies on Employee Bonuses Delay Employer’s Tax Deduction According to IRS Chief Counsel Memo

An employer cannot deduct cash bonuses in the year in which its employees perform the services giving rise to the bonuses, but must wait until the following year when the bonuses are paid, under bonus plans with several fairly…more

Bonuses, Corporate Bonuses, Corporate Taxes, Deferred Compensation, Employee Benefits

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Delaware Court Decides Damages in Breach of Fiduciary Duty Aiding and Abetting Case

In March 2014, Vice Chancellor Laster of the Court of Chancery of the State of Delaware issued an opinion finding Rural/Metro Corporation’s lead financial advisor liable for aiding and abetting breaches of fiduciary duty by…more

Aiding and Abetting, Breach of Duty, Fiduciary Duty

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United States Tightens Sanctions Against Russian Financial, Defense, and Energy Sectors

On September 12, 2014, the United States issued another round of targeted sanctions against the Russian financial, defense, and energy sectors. Today’s measures were a combination of new measures and modifications of prior…more

Banking Sector, Defense Sector, Energy Sector, Russia, Sanctions

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Spotlight on Reforms in Mexico

Mexico is set to put rivals in the shade. Emerging markets have been rightly criticized for squandering favorable global conditions by not taking decisive steps to guarantee their long-term economic health. Mexico has…more

Economic Development, Emerging Markets, Mexico

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Deadline Approaches – Non-EEA fund managers must consider their options

The Alternative Investment Fund Managers Directive (2011/61/EU) (the “Directive”) and the supplementary level 2 Regulation (EU) No 231/2013 (the “Regulation”) introduce an authorisation regime and centralised rulebook for the…more

AIFM, Alternative Investment Fund Managers Directive, Alternative Investment Funds, EEA, EU

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FSA’s Proposal to Amend the Existing Laws and Regulations with respect to Short Sales

On March 7, 2013, the Financial Services Agency of Japan (the “Japan FSA”) announced that it is considering amending certain aspects of the existing rules and regulations governing short sales by November 2013. This Client Alert…more

Japan, Japan FSA, Short Sales, Triggering Event, Uptick Rule

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Cloud Services and Export Control: What You Don't Know Can Hurt You

Cloud services in all forms are becoming widely adopted by enterprise customers. Public, private and hybrid cloud service offerings continue to grow in number and nature. Companies are migrating to Software-as-a-Service (SaaS)…more

Cloud Computing, Data Protection, Export Controls, Exports, SAAS

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FATCA Compliance Guidance Issued for Foreign Financial Institutions

The IRS has issued Notice 2013-69, which provides guidance to foreign financial institutions (FFIs) entering into a FATCA compliance agreement with IRS. The 50-page Notice also provides guidance to FFIs and their branches…more

FATCA, FFI, IGAs, IRS

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The Second Circuit Limits the Power of Courts to Enforce Asset Restraints and Discovery Orders Against Foreign Banks: Tiffany (NJ) LLC v. China Merchants Bank and Gucci America, Inc. v. Bank of China

In Tiffany (NJ) LLC v. China Merchants Bank and Gucci America, Inc. v. Bank of China, the US Second Circuit Court of Appeals issued important rulings, confirming that the limits on the exercise of US general jurisdiction, set…more

Appeals, Auto Manufacturers, Automotive Industry, DaimlerChrysler v Bauman, Discovery

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Federal Circuit Opens Door to New Defense to Inducing Infringement

On June 25, 2013, the Federal Circuit issued a significant decision expanding the scope of evidence that alleged infringers may present to rebut allegations of inducement. Commil USA, LLC v. Cisco Sys., Inc., No. 2012-1042 (Fed…more

Affirmative Defenses, Cisco, Good Faith, Induced Infringement, Patent Infringement

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South Africa Issues Draft Bill on Investment Protection without General Recourse to International Arbitration for Foreign Investors

On 1 November 2013, the South African Department of Trade and Industry made public a draft "Promotion and Protection of Investment Bill" (the "Draft Bill"). The Draft Bill is intended to promote investment by modernizing the…more

Africa, Arbitration, Bilateral Investment Treaties, Foreign Investment, International Arbitration

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Loginovskaya v. Batratchenko: The Second Circuit Limits the Reach of Commodities Fraud Claims

In Loginovskaya v. Batratchenko (“Loginovskaya”), the US Court of Appeals for the Second Circuit ruled in a 2-1 opinion that private commodities fraud claims under the Commodity Exchange Act (the “CEA”) may proceed only if the…more

Appeals, Commodities Exchange Act, Extraterritoriality Rules, Fraud, Morrison v National Australia Bank

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Non-EU investment firms’ access to EU investors under MiFID 2

The recast Markets in Financial Instruments Directive (MiFID 2), along with its accompanying Regulation (MiFIR), were published in the Official Journal of the EU in June. The new legislation is currently expected to come into…more

Cross-Border Transactions, EU, Foreign Investment, International Harmonization, MiFID

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Zlomrex International Finance S.A. – completion of restructuring via Scheme of Arrangement

On 4 February 2014, our client, Zlomrex International Finance S.A. (“ZIF”), completed the restructuring of its approximately €118 million senior secured high yield notes due 2014 (the “Existing High Yield Bonds”). ZIF, a company…more

EU, Restructuring, UK

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IRS Finalizes Regulations on Transfers of Derivative Contracts

The IRS has issued final regulations on the transfer or assignment of certain derivative contracts. A derivative is a financial instrument that is priced upon a derivation of the value of one or several underlying assets,…more

Derivatives, IRS, OTC, Transfers

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In for a Penny, in for a Pound

It is generally known that those who infringe a patent are liable for committing the act of infringement. In the vast majority of cases this is the person who produces patent-infringing goods or sells or uses a patented method…more

EU, Patent Infringement, Patent Litigation, Patents

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US federal agencies to seek expanded Clean Water Act regulatory jurisdiction over aggregate mines and farmlands

The US Environmental Protection Agency (“EPA”) and the US Army Corps of Engineers (“Corps”) are poised to propose a new rule that would significantly expand their regulatory jurisdiction under the Clean Water Act. While many…more

Clean Water Act, Environmental Policies, EPA, Farms, Mining

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Supreme Court confirms that legal advice privilege does not apply to communications with non-lawyers

The Supreme Court this week handed down judgment in the case of R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another, confirming that legal advice privilege does not extend to…more

Accountants, EU, Legal Advice Privilege, Tax Advice

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Will the EU ETS Aviation Emissions Directive be Grounded?

The International Civil Aviation Organisation (ICAO) emerged on 4 October 2013 from its much-anticipated 38th General Assembly meetings in Montreal with what looks like a consensus on the use of market based mechanisms (MBM) for…more

Aviation Industry, Carbon Emissions, Environmental Policies, EU, EU ETS

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Extension to Deadline to Disclose Relevant Transactions for Fiscal Year 2014

Pursuant to article 31-A of the Federal Tax Code, rule I.2.8.1.14 and Annex 1-A of the Fifth Set of Amendments to the Miscellaneous Fiscal Resolution for Fiscal Year 2014, as of January 1, 2014, taxpayers are obliged to disclose…more

Disclosure Requirements, Mexico, Time Extensions

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Important changes to Italian mandatory tender offer Rules

The Decreto Competitività (as converted into Law with amendments, the “Decree”), published on August 20, 2014, in the Italian Official Gazette (Gazzetta Ufficiale della Repubblica Italiana), has made some important changes to…more

EU, New Regulations, Tender Offers

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Jersey, Bermuda and the British Virgin Islands now included to the list of Non-Cooperative States

The list of Non-Cooperative States has been expanded to include Jersey, Bermuda and the British Virgin Islands. As from 1 January 2014, sums paid into these states are subject to a withholding at the source of 75% and are no…more

BVI Business Companies, Corporate Taxes, G20, Income Taxes, NCSTs

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Analysis of Recent Trends in Warranty Insurance in Private Equity M&A Transactions

Although Warranty Insurance in M&A transactions was a novelty product five to ten years ago, Warranty Insurance has now become an industry standard in Europe, largely thanks to its wide use by private equity firms who have been…more

Asset Purchaser, Buyers, Corporate Sales Transactions, Due Diligence, EU

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‘Flip-Up Pre-Packs’ – A new approach to accessing the UK insolvency regime

The UK has long-since established itself as a jurisdiction of choice for complex cross-border restructurings involving corporate groups whose principal operations are overseas. Typically, the English Court has accepted…more

Commercial Bankruptcy, Cross-Border, Foreign Corporations, Insolvency, Jurisdiction

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Global Tax Report - September 2013: Intellectual Property Tax Planning

In This Issue: - United States: Benefits of Intangible Property Migrations - United Kingdom: Innovation: The Name of the Game - Germany: OECD’s Action Plan on Base Erosion and Profit Shifting (BEPS) Within the…more

Erosion, EU, Innovation, Intangible Property, Tax Planning

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Regulatory Update: Japan Casinos: Integrated Resort Initiative Update

On December 5, 2013, a cross-party group of Japanese law makers submitted a draft bill (the “Integrated Resort Promotion Bill”) aiming to, among other things, legalize casino gambling. With many now expecting it to pass into law…more

Casinos, Gambling, Japan, Proposed Legislation

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Everything Old is New Again – Financing trends in the mining industry making a comeback

Until last year, mining companies had little trouble raising funds. But, as the boom in the price of commodities has peaked and passed, the markets remain volatile for miners. Profits have plummeted by up to 49%1 for the top 40…more

Commodities, Investors, IPO, Mining, Private Equity

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Global Tax Report - September 2013: Intellectual Property Tax Planning

In This Issue: - United States: Benefits of Intangible Property Migrations - United Kingdom: Innovation: The Name of the Game - Germany: OECD’s Action Plan on Base Erosion and Profit Shifting (BEPS) Within the…more

Erosion, EU, Innovation, Intangible Property, Tax Planning

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SEC Issues Guidance on Proxy Voting Relevant to Proxy Advisers and Investment Advisers: Any Significant Impact on the Current Proxy Voting System Is Unlikely

Growing concerns regarding the increasingly prominent role of proxy advisory firms, including Institutional Shareholder Services and Glass Lewis, were largely not addressed when, on June 30, 2014, the Securities and Exchange…more

Compliance, Investment Adviser, Proxy Advisors, Proxy Voting Guidelines, SEC

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Government gives go ahead for new employment status

On 3 December 2012, the UK Government published its response to a consultation paper on the Chancellor’s proposal for implementing a new “employee shareholder” status. Whilst acknowledging that only “a very small number of…more

BIS, Capital Gains, Employee Rights, Employee Shareholders, EU

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New York AG Reports that Data Breaches Cost New York Businesses over $1B Last Year

The current headline in data security is a just-released report from the New York Attorney General's Office (the "AG Report") announcing that the number of reported data breaches more than tripled between 2006 and 2013, exposing…more

Cybersecurity, Data Breach, Hackers, Information Reports, Popular

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US Supreme Court Eliminates Laches Defense in Virtually All Copyright Infringement Claims

In Petrella v. Metro-Goldwyn-Mayer, the US Supreme Court resolved a circuit split and ruled that the equitable defense of laches does not bar a plaintiff’s claim for damages brought within the Copyright Act’s three-year statute…more

Copyright, Copyright Infringement, Damages, Laches, MGM

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The changing face of Employment Tribunal litigation

Statistics published by the Ministry of Justice show that the Employment Tribunals received 79% (or 9,801) fewer claims in the period October to December 2013 than in the corresponding period in 2012. It is safe to assume that…more

Employment Tribunals, UK

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New Technology Transfer Agreements Regime to kick in from 1 May: caution needed for the few areas that have changed

After two public consultations in 2011 and 2013, and reportedly much internal debate, the European Commission’s new regime for the assessment of technology transfer agreements under EU competition law, which was adopted last…more

European Commission, Technology Transfer Agreements

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Global Tax Report - September 2013: Intellectual Property Tax Planning

In This Issue: - United States: Benefits of Intangible Property Migrations - United Kingdom: Innovation: The Name of the Game - Germany: OECD’s Action Plan on Base Erosion and Profit Shifting (BEPS) Within the…more

Erosion, EU, Innovation, Intangible Property, Tax Planning

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Challenging Major and Interested Party Transactions

On 16 May 2014 the Plenary Session of the Russian Supreme Commercial Court adopted Resolution No. 28 “On Certain Issues Related to Challenging Major and Interested Party Transactions.” In this Resolution, the Court…more

Corporate Sales Transactions, Interested Parties, Russia

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SEC Proposes Rules on Pay Ratio Disclosure

On September 18, 2013, the Securities and Exchange Commission (the “SEC”) approved by a three-to-two vote proposed rules (the “Proposed Rules”) implementing Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer…more

Annual Filings, Annual Reports, CEOs, Disclosure Requirements, Dodd-Frank

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Effects of the New US Tax Law on Estate Planning

On January 3, 2013, President Obama signed the American Taxpayer Relief Act of 2012 into law. As a result, for the first time in over 12 years, there is now some certainty in the Federal estate tax, the Federal gift tax and the…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift-Tax Exemption, Portability

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Analysis of Recent Trends in Warranty Insurance in Private Equity M&A Transactions

Although Warranty Insurance in M&A transactions was a novelty product five to ten years ago, Warranty Insurance has now become an industry standard in Europe, largely thanks to its wide use by private equity firms who have been…more

Asset Purchaser, Buyers, Corporate Sales Transactions, Due Diligence, EU

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Ukraine and US Energy Export Restrictions: Will Geopolitics Bring Reform?

The situation in Ukraine has intensified political and media scrutiny of the United States’ restrictions on the export of crude oil and liquefied natural gas (LNG). With supplies of Russian energy to Ukraine and Europe at risk,…more

Energy, Export Controls, Exports, Liquid Natural Gas, Natural Gas

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Paths to African Partnerships

In recent years, African stars have soared. Governments, investors, and citizens have driven – and benefited from – booms in banking, construction, retail, and telecommunications. All along, of course, African states have…more

Africa, Economic Development, Infrastructure, Telecommunications

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US federal agencies to seek expanded Clean Water Act regulatory jurisdiction over aggregate mines and farmlands

The US Environmental Protection Agency (“EPA”) and the US Army Corps of Engineers (“Corps”) are poised to propose a new rule that would significantly expand their regulatory jurisdiction under the Clean Water Act. While many…more

Clean Water Act, Environmental Policies, EPA, Farms, Mining

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Open for investment: How Mexico is paving the way for infrastructure investors

A step-change for Mexican infrastructure - Mexico enacted its new federal public-private partnership (PPP) law, Ley de Asociaciones Público Privadas (Law on Public-Private Partnerships), in January 2012. The accompanying…more

Economic Development, Foreign Investment, Infrastructure, Mexico

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SEC Issues Guidance on Proxy Voting Relevant to Proxy Advisers and Investment Advisers: Any Significant Impact on the Current Proxy Voting System Is Unlikely

Growing concerns regarding the increasingly prominent role of proxy advisory firms, including Institutional Shareholder Services and Glass Lewis, were largely not addressed when, on June 30, 2014, the Securities and Exchange…more

Compliance, Investment Adviser, Proxy Advisors, Proxy Voting Guidelines, SEC

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Global Investigations: Reading The Signals

As the global economy recovers, how will regulators respond? Experts provide perspectives on trends in regulatory and corporate investigations. Global trends in regulation - In the wake of the financial crisis,…more

Compliance, Cross-Border, Cross-Border Transactions, Enforcement, Foreign Policy

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New EU procedures for trade defence measures agreed

The Council and European Parliament recently agreed on new procedural rules for the adoption of trade defence measures (i.e. anti-dumping, antisubsidy, and safeguard measures) by the European Commission. The new rules increase…more

Anti-Dumping Duty, Anti-Subsidies, EU, European Commission, New Amendments

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Technical infringements receive stiff fines from the European Commission

Both the Electrabel case and the Marine Harvest case serve as harsh wake-up calls that companies and their antitrust advisers must adopt a high level of caution when analysing whether a transaction must be notified under the EU…more

EU, EUMR, European Commission, Infringement, Mergers

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AIPPI's resolution on "IP Licensing and Insolvency": Will this re-ignite legislative initiatives in Germany?

During its 44th congress in Toronto, on September 17, 2014, the International Association for the Protection of Intellectual Property (AIPPI) adopted a resolution on "IP Licensing and Insolvency". The resolution regarding…more

Germany, Insolvency, License Agreements

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Back in the game: The rise of US M&A

US M&A is bouncing back - After a tough few years, acquisitions in the United States have seen a remarkable resurgence - The first half of 2014 saw a great dealmaking revival in the United States. Deal values are…more

Acquisitions, Biotechnology, Buyouts, CFIUS, China

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Addition of "No-Charge" Limitation During Prosecution Costs Inventor His Patent

On December 11, 2013, Judge Susan Illston of the United States District Court for the Northern District of California found the asserted claims of Ho Keung Tse's U.S. Patent No. 6,665,797 (the "'797 patent") invalid for lack of…more

Patent Applications, Patent Litigation, Patent Prosecution, Patents

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Global Tax Report - September 2013: Intellectual Property Tax Planning

In This Issue: - United States: Benefits of Intangible Property Migrations - United Kingdom: Innovation: The Name of the Game - Germany: OECD’s Action Plan on Base Erosion and Profit Shifting (BEPS) Within the…more

Erosion, EU, Innovation, Intangible Property, Tax Planning

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Supreme Court Issues Ruling on Aereo and the Public Performance Right

On June 25, 2014, the US Supreme Court reversed a decision of the Second Circuit and held that Aereo publicly performs copyrighted television programming. The case has important implications for the public performance right…more

ABC, ABC v Aereo, Aereo, Broadcasting, Copyright

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Class actions: now in Belgium

Class actions are a hot topic in Europe, and elsewhere. Various European countries have introduced, or are in the process of introducing, class action mechanisms. At the European Union level a similar development is noticeable,…more

Class Action, EU

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Basel III: Subordinated Debt Regulation Amended

On 25 October 2013 the Bank of Russia (the “CBR”) issued Instruction No. 3096 U introducing amendments to the CBR Regulation No. 395-P “On the Method of Calculation of the Amount and Assessment of Adequacy of the Net Worth…more

Asset Valuations, Bank of Russia, Banking Sector, Basel III, Capital Markets

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Important changes to Italian mandatory tender offer Rules

The Decreto Competitività (as converted into Law with amendments, the “Decree”), published on August 20, 2014, in the Italian Official Gazette (Gazzetta Ufficiale della Repubblica Italiana), has made some important changes to…more

EU, New Regulations, Tender Offers

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Courts Differ on Enforceability of Unilaterally Adopted Forum Selection Bylaws

While forum selection bylaws have become increasingly popular with US public companies, courts in Delaware and Oregon recently came to opposite conclusions on whether such bylaws, when unilaterally adopted by a board of…more

Board of Directors, Bylaws, Fiduciary Duty, Fiduciary Liability, Forum Selection Clause

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Restructuring & Beyond: The marine industry’s routes to safety: Survival strategies and new opportunities for companies, banks and investors in the marine sector

Shipping has its fortunes anchored to the health of the global economy. As long as supply exceeds demand, there will be companies at risk of failure. More than four years into the industry’s downturn, market equilibrium is…more

Shipping

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