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Vilen Adjivefayev

Increase of Export Customs Duty for Crude Oil

The Government of Kazakhstan has introduced a further increase in the rate of the export customs duty for crude oil. On 11 March 2014, the Government of Kazakhstan adopted Resolution (No. 211) (the “Resolution”)…more

Customs, Exports, Oil & Gas

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Fernando Aenlle-Rocha

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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Zeeshan Ahmedani

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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Meltem Akol

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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Abdulwahid Alulama

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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Gayle Argon

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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Christoph Arhold

New EU Energy and Environmental State Aid Guidelines Adopted: Phase Out of Renewable Energy Subsidies in Sight

On 9 April 2014, the European Commission adopted its new Energy and Environmental State Aid Guidelines (the "EEAG") which will take effect from 1 July 2014 onwards, replacing the Environmental State aid Guidelines ("EAG") from…more

Energy, EU, Renewable Energy, Subsidies

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Jan-Holger Arndt

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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Monica Arora

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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Iker Arriola

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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Donna M. Attanasio

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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Edward Attenborough

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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Amy Bagdasarian

Intent-to-Use Trademark Applications and Security Agreements

In financing transactions, such as loans or securitizations, the lender who provides the financing will typically take a security interest over the assets pledged as collateral against the borrower's compliance with its…more

Borrowers, Collateral, Intent-to-Use, Loans, Trademarks

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Yohai Baisburd

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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Donald Baker

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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Ashley Ballard

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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Charles Balmain

Taking a Leap of Faith: Deferred Prosecution Agreements and Corporate Sentencing Guidelines Come to the UK

On 24 February 2014, UK prosecutors gained the ability to use deferred prosecution agreements (DPAs) in corporate crime cases. This followed the publication on 31 January 2014 of a Definitive Guideline for the sentencing of…more

Deferred Prosecution Agreements, Fraud, Sentencing, SFO, UK

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Natalia Banasiewicz

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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Orsoyla Bardosi

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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Kenneth Barr

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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David Barwise

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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Natalia Bayurova

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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Adrian Beasley

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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David Becker

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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Justin Benson

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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Orion Berg

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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Pascal Berghe

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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Erwan Berthelot

New EU Cosmetics Regulation becomes fully applicable

On July 11, 2013, the new EU Cosmetics Regulation 1223/2009 became fully applicable. The Regulation, already adopted on November 30, 2009, provides a unified and consolidated framework for the marketing and distribution of…more

Cosmetics, EU, Responsible Person Liability

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Paule Biensan

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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David Bond

EU outlines preliminary goals in connection to first TTIP round

Last week, the EU and US met for the first round of negotiations of a Transatlantic Trade and Investment Partnership (TTIP) Agreement. In statements following the closing of this round, chief negotiators for both sides confirmed…more

Competition, EU, European Commission, Negotiations, Proposed Legislation

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Thierry Bosly

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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Pavel Boulatov

Accrual and Payment of Interest on Creditors’ Claims in Insolvency: The Plenary Session of the Russian Supreme Commercial Court Made the Clarifications

This issue considers the most important provisions of the resolution adopted at the Plenary Session of the Supreme Commercial Court of the Russian Federation (the “SCC”) No. 88, dated 6 December 2013, “On Accrual and Payment of…more

Creditors, Debtors, Discounts, Insolvency, Interest Payments

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Patrick Boyle

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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Ryan Brady

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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Oliver Brahmst

Delaware Supreme Court Confirms Liability for Failure to Negotiate in Good Faith

On appeal from the Delaware Court of Chancery, the Delaware Supreme Court, in SIGA Technologies, Inc. v. PharmAthene, Inc., recently held that an agreement to negotiate in good faith in accordance with a term sheet is an…more

Incorporation, Liability, License Agreements, Mergers, Negotiations

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Cristina Brayton-Lewis

The United States Designates Seven Additional Ukrainian Individuals and One Energy Company under Executive Order 13660

On April 11, 2014, the US Office of Foreign Assets Control ("OFAC") issued further designations under Executive Order 13660 ("EO 13660"). EO 13360, which was signed on March 6, 2014, authorizes the United States to impose…more

Executive Orders, Russia, Sanctions, Ukraine

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Philip Broke

New Rulebook for the PRA

The UK Prudential Regulation Authority (“PRA”) is consulting on fundamental reforms to its handbook of rules and guidance. The PRA’s current handbook of rules and guidance is inherited largely from provisions contained…more

Compliance, Prudential Regulation Authority

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Noah A. Brumfield

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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Richard Burke

The United States Designates Seven Additional Ukrainian Individuals and One Energy Company under Executive Order 13660

On April 11, 2014, the US Office of Foreign Assets Control ("OFAC") issued further designations under Executive Order 13660 ("EO 13660"). EO 13360, which was signed on March 6, 2014, authorizes the United States to impose…more

Executive Orders, Russia, Sanctions, Ukraine

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Darragh Byrne

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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Tom Cameron

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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Rebecca Campbell

On the cusp of a boom

Africa has long been viewed as a continent of untapped potential. Now favorable demographic and economic trends are attracting an influx of foreign investment, pointing toward a new era in its development, say Jason Kerr and…more

Africa, Economic Development

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Iacopo Canino

Italy further facilitates financing transactions for Italian issuers (Destinazione Italia Decree)

On December 13, 2013 the Italian Government approved Law Decree Destinazione Italia (the “Destinazione Italia Decree”), aimed at further facilitating financing transactions for Italian issuers. The most significant…more

Bonds, Corporate Bonds, Financing, Securitization

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Linda Carlisle

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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Peter Carney

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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Kenneth A. Caruso

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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Mark Castillo-Bernhaus

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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Denise Cerasina

In the Rural/Metro Decision, Delaware Court Emphasizes Conflicts of Interest in Finding Breaches of Fiduciary Duties

Citing various conflicts of interests involving management, board members and financial advisors, Vice Chancellor Laster of the Delaware Court of Chancery found that the Board of Directors of Rural/Metro Corporation (“Rural”)…more

Aiding and Abetting, Board of Directors, Breach of Duty, Conflicts of Interest, Fiduciary Duty

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Charbel Abou Charaf

The Qatar Financial Centre Regulatory Authority Issues New Rules for Insurance Firms Operating from the Qatar Financial Centre

The Qatar Financial Centre Regulatory Authority (“the QFCRA”) has recently issued new rules which amend the Insurance Business Rules 2006 (PINS) (the “2006 Rules”). The Insurance Business (Risk Management Capital Adequacy and…more

Asset Management, Capital Requirements, Insurance Reform, Risk Management, Valuation

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Baldwin Cheng

SAFE Released Ground Breaking Draft Rules Regarding Cross-Border Security

The State Administration of Foreign Exchange of the PRC (“SAFE”) released the consultation draft of the Foreign Exchange Administration Rules on Cross border Security together with the draft operation guidelines (the “Draft…more

Border Security, Cross-Border, SAFE

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Adam Chernichaw

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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Grigory Chernyshov

Accrual and Payment of Interest on Creditors’ Claims in Insolvency: The Plenary Session of the Russian Supreme Commercial Court Made the Clarifications

This issue considers the most important provisions of the resolution adopted at the Plenary Session of the Supreme Commercial Court of the Russian Federation (the “SCC”) No. 88, dated 6 December 2013, “On Accrual and Payment of…more

Creditors, Debtors, Discounts, Insolvency, Interest Payments

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Mae Shan Chong

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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Robert Chung

Delaware Court of Chancery Finds Business Judgment Rule Review Standard Applicable to Controlling Stockholder Merger Conditioned on the Approval of Both an Independent Special Committee and a Majority-of-the-Minority Stockholder Vote

A recent decision of the Delaware Court of Chancery, In re MFW Shareholder Litigation, held that the business judgment rule standard of review applies in cases where a going-private transaction has been conditioned on both the…more

Board of Directors, Business Judgment Rule, Controlling Stockholders, Corporate Governance, Going-Private Transactions

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Ian Clark

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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William Clinton

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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Nathalie Colin

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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Jane Cooper

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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Benoît Corbisier de Méaultsart

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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Christopher Corr

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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Vicente Corta Fernandez

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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Robert E. Counihan

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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David Courchaine

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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Amanda Cowell

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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Paul Cowan

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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David Crook

Russian Mergers & Acquisitions Market - Challenges and Opportunities

David Crook and Eric Michailov, partners at White & Case, discuss how the legal environment is changing for Russia-related transactions in 2013…more

Banking Sector, China, Foreign Investment, Investors, Natural Resources

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Glen R. Cuccinello

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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Ian Cuillerier

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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Lee Cullinane

September 2013 Update - Dodd-Frank and Swap Guarantees

The Commodity Futures Trading Commission (the “CFTC”) has issued a rule jointly with the Securities Exchange Commission further defining the term “swap” and “security-based swaps”. In that rule, CFTC has taken the view that the…more

CFTC, Commodities Exchange Act, Dodd-Frank, Swaps, Title VII

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Christopher Curran

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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G. William Currier

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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George Cyriac

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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Angela Daker

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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J. William Dantzler, Jr.

Use of Formula Clauses for Income Tax Advantage

In early 1985, Nestlé Holdings Inc. (Nestlé US), a first-tier wholly owned subsidiary of Nestlé S.A. (Nestlé Switzerland), acquired Carnation Co. and made an election under section 338 for that acquisition. Under section 338,…more

Business Assets, Income Taxes, Intangibles, IRS, Nestle

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Mark Davison

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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Claire DeLelle

The United States Designates Seven Additional Ukrainian Individuals and One Energy Company under Executive Order 13660

On April 11, 2014, the US Office of Foreign Assets Control ("OFAC") issued further designations under Executive Order 13660 ("EO 13660"). EO 13360, which was signed on March 6, 2014, authorizes the United States to impose…more

Executive Orders, Russia, Sanctions, Ukraine

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Debora Denizot

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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Harrison Denman

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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Ruchita Dhawan

Anti-Patent Troll Legislation: What is Proposed and What it Could Mean

Proposed patent legislation has been causing a stir at both the federal and state levels recently. In an effort to curb infringement litigation initiated by non-practicing entities, often referred to as "patent trolls,"…more

Patent Infringement, Patent Litigation, Patent Trolls, Patents

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Denise Diallo

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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Allie Diamond

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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Colin Diamond

DC Circuit Court of Appeals Upholds Conflict Minerals Disclosure Rules, But Strikes Down Requirement That Companies Label Their Products

Last week, the US Court of Appeals for the District of Columbia (“DC Circuit”) issued its long-awaited opinion relating to legal challenges to the Securities and Exchange Commission’s (“SEC”) conflict minerals disclosure rules…more

Conflict Mineral Rules, Disclosure Requirements, Dodd-Frank, First Amendment, SEC

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S. Lynn Diamond

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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Irina Dmitrieva

Russian Legislation Update - 3 – 23 March 2014

In This Issue: - Banking - Anti-Money Laundering - Electric Power/Renewables - Excerpt from Banking: On 5 December 2013 the Bank of Russia issued Instruction No. 147-I “On the Procedure for Inspecting…more

Anti-Money Laundering, Banks, Energy, Renewable Energy, Russia

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Allison Dodd

NIST Issues Cybersecurity Framework

On February 12, 2014, the Obama administration released the "Framework for Improving Critical Infrastructure Cybersecurity" (the "Framework"), a voluntary cybersecurity framework developed by the National Institute of Standards…more

Critical Infrastructure Sectors, Cybersecurity, Cybersecurity Framework, NIST

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James Dodsworth

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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Toshio Dokei

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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Céline Domenget Morin

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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John Donaldson

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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Andrei Donstov

Changes in Russian Banking Laws: Acquisition of Bank’s Shares; Banking Groups and Banking Holdings; Risk Management

On 2 July 2013 the President signed Federal Law No. 146-FZ amending the Law on Banks and Banking Activity, the Law on the Bank of Russia and a number of other Russian laws. Following the Strategy for the Development of the…more

Acquisitions, Foreign Banks, New Legislation, Risk Management, Russia

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Michael Doran

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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Donald C. Dowling, Jr.

Global HR Hot Topic—March 2014: Global Compensation, Bonus and Benefits Plan Checklist

Business imperatives push multinationals to expand at least some of their pay, bonus and benefits offerings internationally. This is why in recent years we have seen multinationals globalize many compensation and benefits plans…more

Cross-Border, Employee Benefits, Human Resources Professionals, Multinationals

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Dimitrious Drivas

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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Jeremy Duffy

September 2013 Update - Dodd-Frank and Swap Guarantees

The Commodity Futures Trading Commission (the “CFTC”) has issued a rule jointly with the Securities Exchange Commission further defining the term “swap” and “security-based swaps”. In that rule, CFTC has taken the view that the…more

CFTC, Commodities Exchange Act, Dodd-Frank, Swaps, Title VII

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Matthieu Duplat

FSMA launches consultations on information obligations applicable to distribution of financial products to nonprofessional clients in Belgium

At the European level, the legislative process on the regulation of package retail investment products (“PRIPs”) reached a new peak in November 2013 when the European Parliament published its proposed amendments to the European…more

EU, Financial Products, FSMA, Investors, PRIP

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Gareth Eagles

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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David Eisenberg

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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Gilles Endréo

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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Nicole Erb

The United States Designates Seven Additional Ukrainian Individuals and One Energy Company under Executive Order 13660

On April 11, 2014, the US Office of Foreign Assets Control ("OFAC") issued further designations under Executive Order 13660 ("EO 13660"). EO 13360, which was signed on March 6, 2014, authorizes the United States to impose…more

Executive Orders, Russia, Sanctions, Ukraine

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Enrique Espejel

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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Rebecca Farrington

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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Dr. Thomas Feiler

Germany's Draft Bill on Combating Late Payment in Commercial Transactions: Potential Consequences for Businesses on Both the Legal and Operational Level

On April 1, 2014, the German cabinet (Bundeskabinett) agreed upon a draft bill on combating late payment in commercial transactions in order to transform certain articles of the Directive 2011/7/EU1 into German law. The…more

B2B Organizations, Commercial Contracts, Late Payments, Penalties

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María Teresa Fernández Labardini

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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Sandy Ferrans

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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Gaëlle Filhol

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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Francis Fitzherbert-Brockholes

Big Boys Take Big Risks: Big Boy Letter Bars Investor State Law Fraud Claims

A recent federal appellate ruling in favor of Credit Suisse in a fraud action brought by Pharos Capital has strengthened the case for using so-called “Big Boy” letters. Pharos held that a well-drafted Big Boy letter made it…more

Big-Boy Letters, Fraud, Investors, Securities Fraud

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James Fogarty

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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Ian Forrester

MOFCOM Shows Teeth Against Gun Jumping

On 20 March 2014, the Ministry of Commerce of the People’s Republic of China (“MOFCOM”) issued a notice announcing that it will make public decisions sanctioning companies failing to notify mergers that meet the filing…more

Competition, Filing Requirements, Mergers, MOFCOM, Public Disclosure

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Genevra Forwood

New EU Energy and Environmental State Aid Guidelines Adopted: Phase Out of Renewable Energy Subsidies in Sight

On 9 April 2014, the European Commission adopted its new Energy and Environmental State Aid Guidelines (the "EEAG") which will take effect from 1 July 2014 onwards, replacing the Environmental State aid Guidelines ("EAG") from…more

Energy, EU, Renewable Energy, Subsidies

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Ferigo Foscari

Italy further facilitates financing transactions for Italian issuers (Destinazione Italia Decree)

On December 13, 2013 the Italian Government approved Law Decree Destinazione Italia (the “Destinazione Italia Decree”), aimed at further facilitating financing transactions for Italian issuers. The most significant…more

Bonds, Corporate Bonds, Financing, Securitization

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Christopher Frampton

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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Brandon Freeman

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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Dr. Tobias Freiherr von Tucher

Study of the European Parliament on the Protection of Creator's Rights in a Changing Environment

Copyright law is lagging behind reality due to the interminable development in the field of modern technology. This widespread prejudice is confirmed by a study recently released on behalf of the European Parliament (the…more

Buy-Out Agreements, Contract Drafting, Copyright, EU, License Agreements

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Martin Fronek

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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Tomoko Fuminaga

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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Dr. Detlev Gabel

Germany to Tighten Data Protection Laws: Consumer Protection Associations shall be Granted Right to take Businesses to Court

Germany's data protection laws, already known as one of the strictest in the world, are facing an even stricter approach when Federal Minister of Justice Heiko Maas on February 11, 2014 announced a new draft bill that would…more

Consumer Protection Associations, Data Breach, Data Protection, EU

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Caileen N. Gamache

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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Antonio Garza

Landmark Mexican Energy Reform Is Approved

Energy Reform goes far beyond expectations. The 75-year monopoly by state-owned PEMEX ends, and a competitive wholesale power market is created. On December 12, 2013, the lower house of the Mexican Congress approved the…more

Energy, Energy Reform, Mexico, Oil & Gas

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Steven Gee

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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J. Mark Gidley

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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Christopher Glancy

US Supreme Court to Review Indefiniteness Standard under Section 112 of the Patent Act

On January 10, 2014, the Supreme Court agreed to review the Federal Circuit's standard for determining whether a patent claim is indefinite in Nautilus, Inc. v. Biosig Instruments, Inc. (S. Ct. No. 2013-0369), a case that could…more

Claim Construction, Indefiniteness, Nautilus Inc. v. Biosig Instruments, Patent Litigation, Patents

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Holt Goddard

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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David Goldberg

Is the legal environment changing for Russia-related transactions? What new challenges will parties face and how should they address them?

A dynamic market - Russia is a dynamic, developing growth market, with a constantly changing legal environment. Right now Russia is seeing an upturn of activity in corporate transactions of all kinds: mergers and…more

Enforcement, Foreign Investment, Foreign Jurisdictions, Joint Venture, Public Listing

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Evan Goldenberg

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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Sean Goldstein

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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Chang-Do Gong

In the Rural/Metro Decision, Delaware Court Emphasizes Conflicts of Interest in Finding Breaches of Fiduciary Duties

Citing various conflicts of interests involving management, board members and financial advisors, Vice Chancellor Laster of the Delaware Court of Chancery found that the Board of Directors of Rural/Metro Corporation (“Rural”)…more

Aiding and Abetting, Board of Directors, Breach of Duty, Conflicts of Interest, Fiduciary Duty

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Hernán González Estrada

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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Juliette Goyer

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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Joel Greer

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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Manuel Groenewold

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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Daniel A. Hagan

Summary of FERC Meeting Agenda - April 2014

In This Issue: - Administrative Items - Electric Items - Hydro Items - Certificate Item - Excerpt from Hydro Items - H-1: Duke Energy Carolinas, LLC, Docket No. P-2232-522 This docket involves an…more

Energy, FERC, Utilities Sector

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Clara Hainsdorf

French Courts Ordered to Block and Delist 16 Streaming Websites

Last November, French courts have, for the first time, ordered to block entire video streaming websites based on specific laws against copyright infringement (Hadopi 2009 laws1). To some authors, this decision is questionable in…more

Copyright, Copyright Infringement, EU, Internet, Internet Service Providers

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Claire Hall

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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Douglas Halsey

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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Kathleen Hamann

Taking a Leap of Faith: Deferred Prosecution Agreements and Corporate Sentencing Guidelines Come to the UK

On 24 February 2014, UK prosecutors gained the ability to use deferred prosecution agreements (DPAs) in corporate crime cases. This followed the publication on 31 January 2014 of a Definitive Guideline for the sentencing of…more

Deferred Prosecution Agreements, Fraud, Sentencing, SFO, UK

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Jonathan Hamilton

ICSID Growth Continues as Canada Ratifies and Cases Diversify

The World Bank arbitration system for foreign investment disputes continues to grow. On 1 November 2013, Canada deposited its instrument of ratification of the ICSID Convention with the World Bank. Almost seven years after…more

Bilateral Investment Treaties, Canada, Foreign Investment, ICSID

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Mark Hamilton

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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Tanya Hanna

The United States Designates Seven Additional Ukrainian Individuals and One Energy Company under Executive Order 13660

On April 11, 2014, the US Office of Foreign Assets Control ("OFAC") issued further designations under Executive Order 13660 ("EO 13660"). EO 13360, which was signed on March 6, 2014, authorizes the United States to impose…more

Executive Orders, Russia, Sanctions, Ukraine

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Christian Hansen

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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Sharon Hartline

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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Norifusa Hashimoto

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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Robert Hasty

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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James Hayden

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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Dwight Healy

US Supreme Court Significantly Limits Where Foreign Companies May Be Sued in US Courts For Claims Unrelated To Their Activities In A State

The United States Supreme Court earlier this month issued a major ruling that will significantly limit where corporations may be sued for claims that do not relate to business they may do in a particular place in the U.S. In…more

DaimlerChrysler, DaimlerChrysler v Bauman, Foreign Jurisdictions, Foreign Subsidiaries, Human Rights

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Warren Heit

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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Eckhard Hellbeck

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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Scott E. Hershman

Enforcement Director Norman Bay Nominated to Chair FERC

In a press release issued last Thursday, January 30, 2014, the White House announced that the President intends to nominate the current Director of the Office of Enforcement of the Federal Energy Regulatory Commission (FERC),…more

FERC, Nominations

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Kevin Heverin

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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Patrick Holten

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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Daniel Hoppe-Janisch

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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Richard Horsch

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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Zelda Hunter

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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Tallat Hussain

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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Michael Immordino

Italy further facilitates financing transactions for Italian issuers (Destinazione Italia Decree)

On December 13, 2013 the Italian Government approved Law Decree Destinazione Italia (the “Destinazione Italia Decree”), aimed at further facilitating financing transactions for Italian issuers. The most significant…more

Bonds, Corporate Bonds, Financing, Securitization

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Alexandre Ippolito

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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Petr Janu

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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Claire Jelbart

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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Sang Ji

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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David Johansen

DC Circuit Court of Appeals Upholds Conflict Minerals Disclosure Rules, But Strikes Down Requirement That Companies Label Their Products

Last week, the US Court of Appeals for the District of Columbia (“DC Circuit”) issued its long-awaited opinion relating to legal challenges to the Securities and Exchange Commission’s (“SEC”) conflict minerals disclosure rules…more

Conflict Mineral Rules, Disclosure Requirements, Dodd-Frank, First Amendment, SEC

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Johanna Johnson

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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Caitlin Alexandra Johnston

FTC Settles U.S.-E.U. Safe Harbor Complaints Against Twelve Companies

On January 21, 2014, the Federal Trade Commission ("FTC") announced agreements ("Settlements") with twelve companies to settle the FTC’s claims that each of the companies had falsely represented that they were in compliance with…more

Enforcement Actions, FTC, Mobile Apps, Safe Harbors, Telecommunications

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Helen Joseph

Forfeiture, penalty and repudiation: terminating the employment of highly paid employees

Two recent cases in the English courts have focused on important issues for employers of senior and highly remunerated employees, particularly those in the financial services sector where payments under incentive plans are often…more

Breach of Contract, Employment Terms, EU, Forfeiture, Hiring & Firing

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Jérémie Jourdan

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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Grzegorz Jukiel

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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Gary Kashar

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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Michael E. Kavoukjian

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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Ron Kendler

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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Jason Kerr

On the cusp of a boom

Africa has long been viewed as a continent of untapped potential. Now favorable demographic and economic trends are attracting an influx of foreign investment, pointing toward a new era in its development, say Jason Kerr and…more

Africa, Economic Development

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Seth Kerschner

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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Someera Khokhar

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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Joshua Kiernan

Securing Patent Value for Israeli Medical Technology Companies

Israel is a leader in medical technology and life sciences innovation. Though the life sciences industry in Israel is young, it is growing fast: in the last 15 years the industry has expanded from just over 180 life sciences…more

America Invents Act, Medical Devices, Patent Applications, Patent Infringement, Patent Litigation

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James R.M. Killick

New EU Energy and Environmental State Aid Guidelines Adopted: Phase Out of Renewable Energy Subsidies in Sight

On 9 April 2014, the European Commission adopted its new Energy and Environmental State Aid Guidelines (the "EEAG") which will take effect from 1 July 2014 onwards, replacing the Environmental State aid Guidelines ("EAG") from…more

Energy, EU, Renewable Energy, Subsidies

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Richard King

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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Dr. Assimakis Komninos

MOFCOM Shows Teeth Against Gun Jumping

On 20 March 2014, the Ministry of Commerce of the People’s Republic of China (“MOFCOM”) issued a notice announcing that it will make public decisions sanctioning companies failing to notify mergers that meet the filing…more

Competition, Filing Requirements, Mergers, MOFCOM, Public Disclosure

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Jost Kotthoff

Germany's Draft Bill on Combating Late Payment in Commercial Transactions: Potential Consequences for Businesses on Both the Legal and Operational Level

On April 1, 2014, the German cabinet (Bundeskabinett) agreed upon a draft bill on combating late payment in commercial transactions in order to transform certain articles of the Directive 2011/7/EU1 into German law. The…more

B2B Organizations, Commercial Contracts, Late Payments, Penalties

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Eric Krause

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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Michael Kunze

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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Laurent Lantonnois

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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Dmitry Lapshin

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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Nicholas Lasagna

Italy further facilitates financing transactions for Italian issuers (Destinazione Italia Decree)

On December 13, 2013 the Italian Government approved Law Decree Destinazione Italia (the “Destinazione Italia Decree”), aimed at further facilitating financing transactions for Italian issuers. The most significant…more

Bonds, Corporate Bonds, Financing, Securitization

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Thomas Lauria

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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Anthony Lavers

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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Thomas Le Vert

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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John Leary

China Bulletin - March 2013: China Eases Foreign Exchange Restrictions on FDI

On November 21, 2012, China’s State Administration of Foreign Exchange (“SAFE”) released a new circular, “Circular on Further Improvement and Amendment of Foreign Exchange Control Policies on Direct Investment ([2012] No. 59),”…more

China, Foreign Investment, SAFE

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Tim Lees

Bankruptcy remoteness – a remote prospect?

Lawyers and investment bankers involved in setting up structured products such as asset backed commercial paper, CDOs, CMBS and CLOs often strive to achieve “bankruptcy remoteness” for the vehicle issuing the product (typically…more

Asset-Backed Securities, Bonds, CMBS, Collateralized Debt Obligations, Collateralized Loan Obligations

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Paola Leocani

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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Lindsay Leonard

Kiobel v. Royal Dutch Petroleum: Beyond the Alien Tort Statute—Broadly Extending the Presumption Against the Extraterritorial Reach of US Law

Since the Second Circuit decided Filártiga v. Pena-Irala in 1980, plaintiffs have deployed the Alien Tort Statute (“ATS”) to great effect against multinational corporations. The statute — which had lain dormant since 1789 — has…more

Alien Tort Statute, Extraterritoriality Rules, Kiobel v. Royal Dutch Petroleum Co., Royal Dutch Petroleum

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Hazel Levent

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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Darryl S. Lew

Enforcement Director Norman Bay Nominated to Chair FERC

In a press release issued last Thursday, January 30, 2014, the White House announced that the President intends to nominate the current Director of the Office of Enforcement of the Federal Energy Regulatory Commission (FERC),…more

FERC, Nominations

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David Li

SAFE Released Ground Breaking Draft Rules Regarding Cross-Border Security

The State Administration of Foreign Exchange of the PRC (“SAFE”) released the consultation draft of the Foreign Exchange Administration Rules on Cross border Security together with the draft operation guidelines (the “Draft…more

Border Security, Cross-Border, SAFE

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Xiaoming Li

SAFE Released Ground Breaking Draft Rules Regarding Cross-Border Security

The State Administration of Foreign Exchange of the PRC (“SAFE”) released the consultation draft of the Foreign Exchange Administration Rules on Cross border Security together with the draft operation guidelines (the “Draft…more

Border Security, Cross-Border, SAFE

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Bertrand Liard

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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Charlie Lightfoot

Taking a Leap of Faith: Deferred Prosecution Agreements and Corporate Sentencing Guidelines Come to the UK

On 24 February 2014, UK prosecutors gained the ability to use deferred prosecution agreements (DPAs) in corporate crime cases. This followed the publication on 31 January 2014 of a Definitive Guideline for the sentencing of…more

Deferred Prosecution Agreements, Fraud, Sentencing, SFO, UK

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John Lillis

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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Scott Lincicome

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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Pontus Lindfelt

MOFCOM Shows Teeth Against Gun Jumping

On 20 March 2014, the Ministry of Commerce of the People’s Republic of China (“MOFCOM”) issued a notice announcing that it will make public decisions sanctioning companies failing to notify mergers that meet the filing…more

Competition, Filing Requirements, Mergers, MOFCOM, Public Disclosure

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Gregory G. Little

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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Carmen Lo

US Supreme Court to Review Indefiniteness Standard under Section 112 of the Patent Act

On January 10, 2014, the Supreme Court agreed to review the Federal Circuit's standard for determining whether a patent claim is indefinite in Nautilus, Inc. v. Biosig Instruments, Inc. (S. Ct. No. 2013-0369), a case that could…more

Claim Construction, Indefiniteness, Nautilus Inc. v. Biosig Instruments, Patent Litigation, Patents

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Sylvia Lorenz

Intellectual Property Infringement on the Internet: What Court to Call?

The internet does not know any national borders; website content can be viewed from anywhere in the world. This raises the question of what court has jurisdiction when the content of a website infringes on intellectual property…more

Copyright, Copyright Infringement, Infringement, Internet, Patent Infringement

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Meredith Louis

Know Your Subcontractors: Recent FTC Settlement Highlights the Importance of Validating Subcontractor Data Protection Practices

The Federal Trade Commission ("FTC") voted 4-0 on Friday, January 31, 2014 in favor of a settlement with GMR Transcription Services, Inc. ("GMR") and two of its executives in connection with the leakage of sensitive medical…more

Data Protection, Due Diligence, FTC, HIPAA, Internet

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Emily Low

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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Darina Lozovsky

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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Caroline Lyannaz

CNIL Expanded Investigative Powers

The new French Act on consumer protection enacted on March 18, 2014 broadens the investigative powers of the CNIL (the French Data Protection Authority) by enabling its members and empowered agents to carry out online…more

CNIL, Cybersecurity, Data Protection, EU

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Patrick Ma

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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Jacquelyn F. MacLennan

New EU Energy and Environmental State Aid Guidelines Adopted: Phase Out of Renewable Energy Subsidies in Sight

On 9 April 2014, the European Commission adopted its new Energy and Environmental State Aid Guidelines (the "EEAG") which will take effect from 1 July 2014 onwards, replacing the Environmental State aid Guidelines ("EAG") from…more

Energy, EU, Renewable Energy, Subsidies

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Cecily P. Maguire

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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Kartick Maheshwari

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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Norbert Majerholc

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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Ludovic Malgrain

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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Agathe Malphettes

How to Secure Information Systems: The Growing Complexity of the Legal Landscape

While businesses take a more cautious approach to how they handle IT security threats, these are becoming increasingly complex and sophisticated. Denial-of-service attacks, software tampering (e.g. computer viruses and Trojan…more

Cyber Attacks, Cybersecurity, Data Protection

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David Manson

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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Juan Antonio Martin

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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Hugues Martin-Sisteron

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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Kirsti Massie

European Parliament approves new funding opportunities for infrastructure projects

Summary - On 19 November, the European Parliament (“EP”) voted to approve the Connecting Europe Facility (“CEF”) Regulation. The CEF Regulation is likely to become law early in 2014. The CEF Regulation is a funding…more

EU, Funding, Infrastructure, Public Transit

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Rian Matthews

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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Charles May

Old Law, New Fit: Evergreen Notice Requirements for IP Service Agreements

Under §5-903(2) of the New York General Obligations Law, automatic renewal provisions in "contract[s] for service, maintenance or repair to or for any real or personal property" are unenforceable unless the service provider…more

Contract Formation, Patents

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Neal McAliley

There May Be Trouble Ahead: Legal Challenges on Home Turf Threaten U.S. Ex-Im Bank Funding for Foreign Mining Projects

The Export-Import Bank of the United States (Ex-Im Bank) is facing a new wave of legal challenges related to the financing of natural resource projects outside of the US, and which threaten to de-rail one of Western Australia's…more

Australia, Environmental Assessments, Environmental Impact Report, Environmental Policies, Mining

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Andrew de Lotbiniere McDougall

ICSID Growth Continues as Canada Ratifies and Cases Diversify

The World Bank arbitration system for foreign investment disputes continues to grow. On 1 November 2013, Canada deposited its instrument of ratification of the ICSID Convention with the World Bank. Almost seven years after…more

Bilateral Investment Treaties, Canada, Foreign Investment, ICSID

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Kevin McGann

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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Brendan McGivern

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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Gavin McLean

New Rulebook for the PRA

The UK Prudential Regulation Authority (“PRA”) is consulting on fundamental reforms to its handbook of rules and guidance. The PRA’s current handbook of rules and guidance is inherited largely from provisions contained…more

Compliance, Prudential Regulation Authority

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Maya Melnikas

Changes in Russian Banking Laws: Acquisition of Bank’s Shares; Banking Groups and Banking Holdings; Risk Management

On 2 July 2013 the President signed Federal Law No. 146-FZ amending the Law on Banks and Banking Activity, the Law on the Bank of Russia and a number of other Russian laws. Following the Strategy for the Development of the…more

Acquisitions, Foreign Banks, New Legislation, Risk Management, Russia

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Peita Menon

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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Stefan Mentzer

The Garcia v. Google Controversy and What It Means for Content Owners and Users

Copyright law generates plenty of discussion these days, but few copyright decisions have been as controversial as the Ninth Circuit's recent opinion in Garcia v. Google. The court's ruling – that a film actor owns an…more

Copyright, Copyright Infringement, Google, Independent Films, YouTube

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Bryan Merryman

Raising the Bar: HUD Issues New Rule Imposing More Demanding Standard for Defending Against Discrimination Claims Under the Fair Housing Act

The Department of Housing and Urban Development (HUD) recently issued a new rule to formalize a national standard for determining whether a housing practice violates the Fair Housing Act (FHA) as the result of a discriminatory…more

Burden-Shifting, Discrimination, Discriminatory Effects Rule, FHA, HUD

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Jennifer Mersing

Washington Energy Update - December 2012/January 2013

In This Issue: - Congress Keeps Wind Credit Alive, Adds New “Begin Construction” Requirement - FERC Approves NERC’s “Bright-Line” BES; Revised Rules of Procedure - Exercising Its Muscle—Enforcement Actions by the…more

DOE, Enforcement Actions, Exports, FERC, Liquid Natural Gas

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Philippe Metais

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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Markus Mette

Trademark Infringement by Use of AdWords? Legal Risks by Using AdWords Despite European Court of Justice (ECJ) Rulings

The internet is one of the most important marketing tools today. The use of trademarks as keywords for becoming prominently placed in the results of a search via the Google search machine is nowadays a common and important…more

Advertising, AdWords, ECJ, EU, Infringement

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Eric Michailov

Russian Mergers & Acquisitions Market - Challenges and Opportunities

David Crook and Eric Michailov, partners at White & Case, discuss how the legal environment is changing for Russia-related transactions in 2013…more

Banking Sector, China, Foreign Investment, Investors, Natural Resources

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Justin S. Miller

China Announces Final Determinations in Antidumping and Countervailing Duty Investigations into Solar-Grade Polysilicon from Korea and United States

On January 20, 2014, the Chinese Ministry of Commerce (MOFCOM) published Notice No. 5 [2014], imposing definitive antidumping (AD) duties on imports of solar-grade polysilicon from Korea and the United States. On the same day,…more

Antidumping Duties, China, Countervailing Duties, Exports, Imports

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Caroline Miller Smith

European Parliament approves new funding opportunities for infrastructure projects

Summary - On 19 November, the European Parliament (“EP”) voted to approve the Connecting Europe Facility (“CEF”) Regulation. The CEF Regulation is likely to become law early in 2014. The CEF Regulation is a funding…more

EU, Funding, Infrastructure, Public Transit

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R. Jake Mincemoyer

September 2013 Update - Dodd-Frank and Swap Guarantees

The Commodity Futures Trading Commission (the “CFTC”) has issued a rule jointly with the Securities Exchange Commission further defining the term “swap” and “security-based swaps”. In that rule, CFTC has taken the view that the…more

CFTC, Commodities Exchange Act, Dodd-Frank, Swaps, Title VII

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Arthur Mitchell

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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Jayashree Mitra PhD

Supreme Court Applies “First Sale” Doctrine to Foreign-Made Copyrighted Goods

The Supreme Court ruled in Kirtsaeng v. John Wiley & Sons, Inc. that copyright law does not prohibit the unauthorized importation and sale of copyrighted goods manufactured outside the United States. This decision, which…more

Copyright, Exports, First Sale Doctrine, Grey Market, Imports

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Elizabeth Montpetit

ICSID Growth Continues as Canada Ratifies and Cases Diversify

The World Bank arbitration system for foreign investment disputes continues to grow. On 1 November 2013, Canada deposited its instrument of ratification of the ICSID Convention with the World Bank. Almost seven years after…more

Bilateral Investment Treaties, Canada, Foreign Investment, ICSID

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Leslie Morioka

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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Martin Munz

Intellectual Property Infringement on the Internet: What Court to Call?

The internet does not know any national borders; website content can be viewed from anywhere in the world. This raises the question of what court has jurisdiction when the content of a website infringes on intellectual property…more

Copyright, Copyright Infringement, Infringement, Internet, Patent Infringement

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Dr. Trevor Nagel

Anti-Patent Troll Legislation: What is Proposed and What it Could Mean

Proposed patent legislation has been causing a stir at both the federal and state levels recently. In an effort to curb infringement litigation initiated by non-practicing entities, often referred to as "patent trolls,"…more

Patent Infringement, Patent Litigation, Patent Trolls, Patents

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Hiroshi Naito

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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Prabhu Narasimhan

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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Jeremy Naylor

Treasury Issues Final FATCA Regulations

Introduction - On January 17, 2013, the Department of the Treasury (“the Treasury”) and the Internal Revenue Service (the “Service”) issued final regulations (the “Regulations”) under Sections 1471 through 1474 of the…more

Capital Markets, Documentation, Exemptions, FATCA, Foreign Banks

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Edward Neaher, Jr.

Maryland and Florida Pass New PPP Legislation

On April 9, 2013, Maryland Governor Martin O'Malley signed House Bill 560 ("HB560") into law, which extensively revises Maryland's existing public-private partnership ("PPP") statute. HB560 formalizes the State's policy on the…more

New Legislation, Public-Private Partnerships, Request for Proposals

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Patrick Neidinger

The Proposed Directive on Trade Secrets in the EU

Companies irrelevant of their individual size and across all business sectors use trade secrets in order to gain and build advantages in the global economy. Nevertheless, the laws of the EU member countries are far from…more

EU, European Commission, Trade Secrets

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Nandan Nelivigi

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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Natalia Nikitina

Changes in Russian Banking Laws: Acquisition of Bank’s Shares; Banking Groups and Banking Holdings; Risk Management

On 2 July 2013 the President signed Federal Law No. 146-FZ amending the Law on Banks and Banking Activity, the Law on the Bank of Russia and a number of other Russian laws. Following the Strategy for the Development of the…more

Acquisitions, Foreign Banks, New Legislation, Risk Management, Russia

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Seiji Niwa

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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Sara Nordin

EU expands Ukraine-related asset freeze list to four more persons, work on possible Russia sanctions continues

In an attempt to strengthen European Union (EU) sanctions targeting misappropriation of Ukrainian state funds, the EU has added another four names to the existing list of individuals subject to an asset freeze. These…more

EU, Frozen Assets, Russia, Sanctions, Ukraine

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Mukhtar Nurzhigitov

Potential Amendments to the Kazakhstan Legal Regime for Exploration and Production of Oil and Gas

New amendments to the legal regime for exploration and production of oil and gas in Kazakhstan have been developed by a government working group. Affecting the Subsoil Use Law, the Code on Administrative Violations and…more

Energy Exploration, Natural Resources, Oil & Gas

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Vladimir Nyagolov

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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Earle H. O'Donnell

Summary of FERC Meeting Agenda - April 2014

In This Issue: - Administrative Items - Electric Items - Hydro Items - Certificate Item - Excerpt from Hydro Items - H-1: Duke Energy Carolinas, LLC, Docket No. P-2232-522 This docket involves an…more

Energy, FERC, Utilities Sector

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Professor Hiroshi Oda

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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Timur Odilov

Potential Amendments to the Kazakhstan Legal Regime for Exploration and Production of Oil and Gas

New amendments to the legal regime for exploration and production of oil and gas in Kazakhstan have been developed by a government working group. Affecting the Subsoil Use Law, the Code on Administrative Violations and…more

Energy Exploration, Natural Resources, Oil & Gas

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Kristin Odynski

The “Business Case” For and Against International Arbitration

INTRODUCTION - A 2013 survey conducted by PricewaterhouseCoopers and Queen Mary, University of London found that corporations across all sectors refer as many disputes to international arbitration (47%) as they do to…more

International Arbitration

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Jeff Oelke

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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Koichiro Ohashi

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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Jonathan Olier

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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John M. Olivieri

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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Takako Onoki

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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Daren M. Orzechowski

Intent-to-Use Trademark Applications and Security Agreements

In financing transactions, such as loans or securitizations, the lender who provides the financing will typically take a security interest over the assets pledged as collateral against the borrower's compliance with its…more

Borrowers, Collateral, Intent-to-Use, Loans, Trademarks

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Igor Ostapets

Ukraine-related sanctions – a month in: Key issues for financial institutions

What is the status of the evolving international sanctions against Ukraine and Russia? Since the recent escalation of the Ukraine crisis in March, there have been almost daily developments regarding economic sanctions –…more

Russia, Sanctions, Ukraine

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Daniel Overly

Do Not Forget to Lock the Backdoor: Adopting a Holistic Approach to Cybersecurity

While cybersecurity has traditionally focused on blocking attacks from the outside through perimeter defenses (e.g., firewalls, intrusion detection, penetration testing), unfolding facts concerning the recent Target data breach…more

Cybersecurity, Data Breach, Data Protection, Encryption, Network Security

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Jack Pace III

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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Paddy Patrick

Turkcell Litigation – Pivotal Ruling: Privy Council Confirms Cukurova’s Entitlement to Relief from Forfeiture

After more than five years of litigation between Cukurova of Turkey and Alfa of Russia, the Privy Council has delivered a pivotal ruling in Cukurova’s favour. The decision establishes that a borrower may be entitled to equitable…more

Borrowers, Collateralized Debt Obligations, Debt, Equitable Relief, EU

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Ernest (Ernie) T. Patrikis

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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George Paul

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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Owen Pell

DC Circuit Court of Appeals Upholds Conflict Minerals Disclosure Rules, But Strikes Down Requirement That Companies Label Their Products

Last week, the US Court of Appeals for the District of Columbia (“DC Circuit”) issued its long-awaited opinion relating to legal challenges to the Securities and Exchange Commission’s (“SEC”) conflict minerals disclosure rules…more

Conflict Mineral Rules, Disclosure Requirements, Dodd-Frank, First Amendment, SEC

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Charles Pesant

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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Stephen Phillips

Bankruptcy remoteness – a remote prospect?

Lawyers and investment bankers involved in setting up structured products such as asset backed commercial paper, CDOs, CMBS and CLOs often strive to achieve “bankruptcy remoteness” for the vehicle issuing the product (typically…more

Asset-Backed Securities, Bonds, CMBS, Collateralized Debt Obligations, Collateralized Loan Obligations

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Jean-Pierre Picca

English Court of Appeal requires French defendants to comply with disclosure orders despite the French “blocking statute”

The existence in several countries of “blocking statutes”, which prohibit the provision of economic information to foreign authorities or courts (or require prior authorization to be obtained before doing so), present a…more

Blocking Statutes, Cartels, Disclosure Requirements, Multinationals, UK

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Morton Pierce

In the Rural/Metro Decision, Delaware Court Emphasizes Conflicts of Interest in Finding Breaches of Fiduciary Duties

Citing various conflicts of interests involving management, board members and financial advisors, Vice Chancellor Laster of the Delaware Court of Chancery found that the Board of Directors of Rural/Metro Corporation (“Rural”)…more

Aiding and Abetting, Board of Directors, Breach of Duty, Conflicts of Interest, Fiduciary Duty

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Christian Pilkington

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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Jane Plomley

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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Daria Plotnikova

Lease of Real Estate: Special Alert - Lease of Future Real Estate and Other Court Clarifications on Lease Matters. Recent Trends and Market Practice

On 25 January 2013 the Plenary Session of the Supreme Commercial Court of the Russian Federation (the “Court”) approved Resolution No. 13 on the application of the Russian Civil Code provisions on lease agreements (the…more

Commercial Leases, Leases, Real Estate Market, Russian Civil Code

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Lucy Plowright

UK electricity market reform: the road ahead

The UK’s electricity market is evolving, with far-reaching implications for generators and investors in the renewables sector. As the draft Energy Bill progresses through Parliament this year, further detail is expected in a…more

Electricity, Energy Costs, Energy Policy, EU, Renewable Energy

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Michael Polkinghorne

Paris Energy Series No. 8: Beware of the Boilerplate – The Risks of Standard-form Clauses in Common and Civil Law Jurisdictions

1. Introduction - When commercial agreements are negotiated, certain key terms are generally the subject of intense discussion. Once these terms have been agreed, there is a risk the ‘boilerplate’ provisions1 at the back…more

Arbitration, Boilerplate Language, Commercial Contracts, Merger Clause, Notice Requirements

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Nandakumar Ponniya

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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Emmanuelle Pontnau-Faure

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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Mark D. Powell

New EU Energy and Environmental State Aid Guidelines Adopted: Phase Out of Renewable Energy Subsidies in Sight

On 9 April 2014, the European Commission adopted its new Energy and Environmental State Aid Guidelines (the "EEAG") which will take effect from 1 July 2014 onwards, replacing the Environmental State aid Guidelines ("EAG") from…more

Energy, EU, Renewable Energy, Subsidies

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Gregory Pryor

In the Rural/Metro Decision, Delaware Court Emphasizes Conflicts of Interest in Finding Breaches of Fiduciary Duties

Citing various conflicts of interests involving management, board members and financial advisors, Vice Chancellor Laster of the Delaware Court of Chancery found that the Board of Directors of Rural/Metro Corporation (“Rural”)…more

Aiding and Abetting, Board of Directors, Breach of Duty, Conflicts of Interest, Fiduciary Duty

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Nausheen Rahman

‘Can pay, won’t pay’ – in the first reasoned judgment of its kind, the English Court of Appeal has imposed conditions on a recalcitrant defendant’s permission to appeal a worldwide disclosure order following adverse arbitral awards

Gloster LJ has ordered that the appellants, the losing parties in two London seated LCIA arbitrations, pay into court the full amount of awards now worth over US$325 million as a condition of proceeding with their appeal against…more

Appeals, Arbitration, Arbitration Awards, Jurisdiction, UK

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Stephen Ravenscroft

Shared Parental Leave System

Introduction - The UK Government has announced its plans to let parents share leave for a year after a child is born. The change is designed to challenge the old-fashioned assumption that the mother will always be the…more

Employee Rights, Maternity Leave, Paternity, UK

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Aloke Ray

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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John Reiss

Delaware Supreme Court Confirms Liability for Failure to Negotiate in Good Faith

On appeal from the Delaware Court of Chancery, the Delaware Supreme Court, in SIGA Technologies, Inc. v. PharmAthene, Inc., recently held that an agreement to negotiate in good faith in accordance with a term sheet is an…more

Incorporation, Liability, License Agreements, Mergers, Negotiations

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Carmen Reynolds

Financial Regulatory Update - Autumn 2013

This newsletter provides an overview of some of the main EU and UK banking, securities and derivatives markets regulatory developments during the period 1 June to 30 September 2013. Banking Regulation Basel III…more

Banks, Basel III, Capital Requirements, EU, Financial Regulatory Reform

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John Reynolds

US Supreme Court Significantly Limits Where Foreign Companies May Be Sued in US Courts For Claims Unrelated To Their Activities In A State

The United States Supreme Court earlier this month issued a major ruling that will significantly limit where corporations may be sued for claims that do not relate to business they may do in a particular place in the U.S. In…more

DaimlerChrysler, DaimlerChrysler v Bauman, Foreign Jurisdictions, Foreign Subsidiaries, Human Rights

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Raphaël Richard

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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Thomas Richter

Germany to Tighten Data Protection Laws: Consumer Protection Associations shall be Granted Right to take Businesses to Court

Germany's data protection laws, already known as one of the strictest in the world, are facing an even stricter approach when Federal Minister of Justice Heiko Maas on February 11, 2014 announced a new draft bill that would…more

Consumer Protection Associations, Data Breach, Data Protection, EU

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Emma Roarty

European Parliament approves new funding opportunities for infrastructure projects

Summary - On 19 November, the European Parliament (“EP”) voted to approve the Connecting Europe Facility (“CEF”) Regulation. The CEF Regulation is likely to become law early in 2014. The CEF Regulation is a funding…more

EU, Funding, Infrastructure, Public Transit

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Steven K. Ross

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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Jason Rothschild

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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Jane Rueger

Washington Energy Update - November 2013

In This Issue: - Trans-Pacific and Trans-Atlantic Treaties: Opportunities and Challenges for LNG Exports - Suit Against Chinese Solar Firms Seeks Nearly US$1 Billion in Damages - Major Energy Bills Get Started in…more

Carbon Emissions, China, Damages, DOE, EPA

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Winthrop Rutherfurd Jr.

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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Michelle Rutta

Netflix SEC Investigation Report Clarifies the Use of Social Media and Regulation FD

Regulation FD - Regulation FD prohibits US public companies or persons acting on their behalf from selectively disclosing material, nonpublic information to securities professionals or investors when it is reasonably…more

Disclosure Requirements, Information Sharing, Netflix, Regulation FD, SEC

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Dipen Sabharwal

Supreme Court confirms English courts can grant injunctions to protect arbitration agreements, even absent a current or prospective arbitration

The Supreme Court yesterday confirmed that, even where no arbitration is contemplated or afoot, English courts can grant an anti-suit injunction protecting an English law agreement to arbitrate (AES Ust-Kamenogorsk LLP v…more

Anti-Suit Injunctions, Arbitration, Arbitration Agreements, EU, Injunctions

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Joseph Schenck

Hacking Back: For Now, Be Vigilant Rather Than a Vigilante

In the cyber-security world, "hacking back" – using hacker-like techniques to defend a company's IT systems by going on the offensive and instituting countermeasures to cyberattacks -- is generating much buzz. For example, some…more

CFAA, Cyber Attacks, Cybersecurity, Data Protection, Hackers

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Hermann Schmitt

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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Axel P. Schulz

MOFCOM Shows Teeth Against Gun Jumping

On 20 March 2014, the Ministry of Commerce of the People’s Republic of China (“MOFCOM”) issued a notice announcing that it will make public decisions sanctioning companies failing to notify mergers that meet the filing…more

Competition, Filing Requirements, Mergers, MOFCOM, Public Disclosure

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Adam Schwartzbaum

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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Samuel Scoles

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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Saskia Seeger

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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Alessandro Seganfreddo

How Tobin Tax and certain regulatory duties affect Block Trades in Italy

Italian Law No. 228 dated December 24, 2012, which approved the 2013 budget, contemplates, among others, a new tax applicable to certain financial transactions (the “Tobin Tax”). The Tobin Tax will apply to transactions,…more

Buyers, Derivatives, Duties, Foreign Banks, High Frequency Trading

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José Ignacio Segura Alonso

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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Kamilla Shikhametova

European Union Requests Consultations in First WTO Case Against Russia

On 9 July 2013, the European Union (EU) formally challenged Russia on its recycling fee for imported vehicles by requesting consultations under the WTO dispute settlement system. This is the first WTO dispute initiated against…more

Consultation, EU, Fees, Imports, Motor Vehicles

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Rebecca Shorter

New Changes to the Late Payment of Commercial Debts (Interest) Act

On 16 March 2013, new regulations came into force in relation to the Late Payment of Commercial Debts (Interest) Act. Enacted to incorporate a recent EU Directive, these new regulations introduce a maximum payment period…more

Commercial Contracts, Debt, EU, Late Payments

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Frank Shu

SAFE Released Ground Breaking Draft Rules Regarding Cross-Border Security

The State Administration of Foreign Exchange of the PRC (“SAFE”) released the consultation draft of the Foreign Exchange Administration Rules on Cross border Security together with the draft operation guidelines (the “Draft…more

Border Security, Cross-Border, SAFE

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John Shum

SAFE Released Ground Breaking Draft Rules Regarding Cross-Border Security

The State Administration of Foreign Exchange of the PRC (“SAFE”) released the consultation draft of the Foreign Exchange Administration Rules on Cross border Security together with the draft operation guidelines (the “Draft…more

Border Security, Cross-Border, SAFE

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Ray Simon

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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Jodi Singer

Final Exemptive Order Regarding Cross-Border Application of Certain Swap Regulations

On July 13, 2013, the Commodity Futures Trading Commission (the “CFTC”) approved a second final exemptive order (the “Final Order”) providing time-limited relief from certain cross-border applications of the swaps provisions of…more

CFTC, Dodd-Frank, Major Swap Participants, Swap Dealers, Swaps

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Ladislav Smejkal

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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Adam Smith

New Measures for the Support of Renewable Generation Investment Projects in Russia

Russia has introduced a scheme whereby selected renewable generation projects can qualify to receive set capacity payments, intended to deliver recovery of capital invested and a certain level of return over a fifteen year…more

Capacity Payments, Electricity, Incentives, Renewable Energy, Russia

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Claudia Smith

The Trademark Clearinghouse: What You Need to Know

The Internet Corporation for Assigned Names and Numbers ("ICANN") will be expanding the number of generic top-level domains ("gTLDs") as a result of the application process that commenced in January 2012. It is expected that…more

gTLD, ICANN, Trademark Clearinghouse, Trademarks

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Gregory Spak

EU outlines preliminary goals in connection to first TTIP round

Last week, the EU and US met for the first round of negotiations of a Transatlantic Trade and Investment Partnership (TTIP) Agreement. In statements following the closing of this round, chief negotiators for both sides confirmed…more

Competition, EU, European Commission, Negotiations, Proposed Legislation

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Gregory Starner

Raising the Bar: HUD Issues New Rule Imposing More Demanding Standard for Defending Against Discrimination Claims Under the Fair Housing Act

The Department of Housing and Urban Development (HUD) recently issued a new rule to formalize a national standard for determining whether a housing practice violates the Fair Housing Act (FHA) as the result of a discriminatory…more

Burden-Shifting, Discrimination, Discriminatory Effects Rule, FHA, HUD

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Will Stoner

The Cooperative Bank’s Restructuring – will this be a case of lessons learned?

The UK’s bank regulatory and insolvency law structures were unprepared for the global financial crisis. As a result, the UK government’s response to intense bank stress in the immediate aftermath of the crunch led to a number of…more

Banking Crisis, Bonds, EU, Insolvency, Restructuring

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David Strelzyk-Herzog

EU Environment Report

In This Issue: - Climate Change: ..ETS exemption for flights outside Europe rejected by EP Environment Committee - Chemicals: ..ECHA sends legally binding letters to companies which have registered…more

Chemicals, Climate Change, Environmental Policies, EU, Fuel Standards

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Julia Strettell

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