Latest updates

Court finds P&I club not directly and jointly liable for associate shipowners' debts
Kincaid | Mendes Vianna Advogados
  • Shipping & Transport
  • Brazil
  • August 22 2018

The Sixth Civil Chamber of the Rio de Janeiro State Court of Appeals recently decided that a protection and indemnity (P&I) club was not liable for an associate shipowner's debts. In its decision, the court distinguished the P&I club from insurers operating in the Brazilian insurance market. This decision is paramount because it creates an important court precedent regarding P&I clubs' liability for the damages caused to third parties by their associates.

Supreme Court rules on construction of 'as she lies' clause in sale of second-hand vessel
Dardani Studio Legale
  • Shipping & Transport
  • Italy
  • August 22 2018

The Supreme Court recently issued a decision regarding the sale and purchase of a second-hand vessel – in particular, the construction of the words 'as she lies'. While Italian jurisprudence has historically considered the words a mere standard clause with no legal effects, Italian maritime scholars have confirmed the validity of the clause aimed at contracting out the sellers' guarantee to remedy any hidden defects in the goods being sold.

Pharmaceutical and medical device company M&A: regulatory and tax implications
Sanchez-DeVanny Eseverri SC
  • Healthcare & Life Sciences
  • Mexico
  • August 22 2018

What happens to marketing authorisations (MAs) or sanitary registrations for pharmaceutical and medical devices may be one of the biggest questions to consider before, during and after a merger or acquisition of a legal entity active in the pharmaceutical or medical device industry. Parties undertaking a merger or acquisition which involves the transfer of an MA are advised to undertake a comprehensive analysis beforehand, as bundling the MA with other actual assets could trigger tax issues or exposure.

Care workers are not entitled to minimum wage for 'sleep-in' shifts
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • August 22 2018

The Court of Appeal has decided that care workers carrying out so-called 'sleep-in' shifts are not entitled to the national minimum wage for the whole shift, but rather only when they are required to be awake and working. In so ruling, the court has overturned various earlier decisions of the Employment Appeal Tribunal and contradictory guidance from Her Majesty's Revenue and Customs, which would have exposed the care sector to claims for arrears of pay worth hundreds of millions of pounds.

Reducing minimum period of unemployment to withdraw provident fund accumulations
Shardul Amarchand Mangaldas & Co
  • Employment & Benefits
  • India
  • August 22 2018

The Central Board of Trustees of the Employees' Provident Fund Organisation recently approved a proposal to permit provident fund members to withdraw 75% of their accumulations after a period of one month of continuous unemployment instead of two months. The proposal would come into effect when the Employees' Provident Funds and Miscellaneous Provisions Act and the Employees' Provident Funds Scheme are amended.

Reducing workers' compensation costs through appeals makes good business sense
Fasken
  • Employment & Benefits
  • Canada
  • August 22 2018

The Canadian workers' compensation system is funded entirely through employer premium payments. Generally, employers which have more claims or claims that have higher associated costs will pay additional monies to their respective compensation board in the form of increased premiums or premium surcharges. As such, employers should establish an effective health and safety management system to prevent work-related injuries and illnesses in the first place and actively manage claims should they occur.

CFTC proposes amendments to margin segregation requirements for swap dealers and major swap participants
Shearman & Sterling LLP
  • Derivatives
  • USA
  • August 22 2018

The Commodity Futures Trading Commission (CFTC) recently proposed amendments to certain requirements for swap dealers and major swap participants to notify counterparties of their right to segregate initial margin for uncleared swaps. The proposal addresses several concerns previously raised by market participants about the existing rules, including through the CFTC's Project KISS initiative, which was intended to lift unnecessary regulatory burdens and reduce costs for market participants.

Supreme Court confirms right to limit liability
AKD NV
  • Litigation
  • Netherlands
  • August 21 2018

The Supreme Court has reconfirmed the right to limit liability under Dutch law, even in personal injury cases. It held that limitation as such is not a violation of the human right to protection of property under the First Protocol to the European Convention on Human Rights, and that it is nationally and internationally considered necessary that the liability of the carrier is limited or may be limited in the event of a passenger's death or personal injury.

Cross-border insolvency regime – past and future
RPC
  • Litigation
  • Hong Kong
  • August 21 2018

There are no statutory provisions empowering the Hong Kong courts to provide assistance and recognition to foreign insolvency office holders. The courts therefore rely on their inherent power (where appropriate) under the common law principle of modified universalism to provide such assistance. Although the application of this principle is not without its problems, the courts in recent years have shown some willingness to assist the effective implementation of cross-border insolvency and restructuring regimes.

Revisiting shareholder disclosure duties in Swiss rights offerings
Niederer Kraft Frey
  • Capital Markets
  • Switzerland
  • August 21 2018

As in other jurisdictions, under Swiss law there are specific requirements relating to the disclosure of shareholdings and the actions of shareholders for companies whose equity securities are listed in whole or in part in Switzerland, including on Switzerland's main stock exchange, the SIX Swiss Exchange Ltd. This update aims to revisit and provide some practical guidance on certain shareholder disclosure duties in the context of Swiss rights offerings.

Joint venture franchises: the whys and wherefores
  • Franchising
  • International
  • August 21 2018

Franchising provides a flexible model for growth or re-engineering, with a variety of structures to meet different needs. Of all of the structures, the joint venture franchise is the least understood and most likely to cause difficulties if not structured correctly. In order to understand why this is so, it is necessary to consider the rationale for using the joint venture model and the manner in which such a relationship should be structured.

Supreme Court interprets amended Order 30 and meaning of 'completion of the pleadings'
Elias Neocleous & Co LLC
  • Litigation
  • Cyprus
  • August 21 2018

The Supreme Court recently issued a judgment that interpreted the meaning of the term 'completion of the pleadings' as the start of the time limit for issuing an application for directions in accordance with Order 30 of the Civil Procedure Rules. The court noted that Order 30, Rule 1(c) provides no room for saving a claim if the relevant deadlines have expired. The court then considered the appellant's argument that the time limit had not begun with the completion of the pleadings between the plaintiff and the defendant.

Non-party access to documents on court file: normal service resumes
RPC
  • Litigation
  • United Kingdom
  • August 21 2018

A master's decision to allow a non-party to proceedings to access a wide range of documents in the proceedings was recently reviewed by the Court of Appeal. As well as providing useful guidance on how the court should deal with applications by non-parties for access to documents, this case is a reminder to parties to proceedings that they should be aware of the potential loss of confidentiality.

Dishonesty is a serious allegation and must not be pleaded lightly: rolled-up plea is insufficient
  • Litigation
  • Cayman Islands
  • August 21 2018

The Grand Court has set out the requirements for pleading a cause of action of dishonest assistance and reaffirmed the established principles of the defence of estoppel. The decision provides welcome comfort to corporate entities with robust and thorough systems for detecting fraud.

Court finds P&I club not directly and jointly liable for associate shipowners' debts
Kincaid | Mendes Vianna Advogados
  • Insurance
  • Brazil
  • August 21 2018

The Sixth Civil Chamber of the Rio de Janeiro State Court of Appeals recently decided that a protection and indemnity (P&I) club was not liable for an associate shipowner's debts. In its decision, the court distinguished the P&I club from insurers operating in the Brazilian insurance market. This decision is paramount because it creates an important court precedent regarding P&I clubs' liability for the damages caused to third parties by their associates.

Franchisor caught between rock and hard place: importance of clear exclusivity clauses
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • August 21 2018

Franchise arrangements often involve a three-way relationship whereby franchisors enter into commercial leases with landlords and then sublease the rented premises to franchisees. Such leases often contain an exclusivity clause limiting the landlord's ability to lease nearby commercial space to competitors of the franchise network. The Superior Court of Quebec recently confirmed that exclusivity clauses must be interpreted and applied restrictively so as not to unduly interfere with the parties' freedom of contract.

How does insured's fraudulent claim affect third-party insurance rights?
Levitan, Sharon & Co
  • Insurance
  • Israel
  • August 21 2018

The Supreme Court recently examined whether Article 25 of the Insurance Contract Law, which discharges an insurer of liability where an insured or beneficiary submits a fraudulent claim, also applies to third-party claims made in good faith. The court's decision clarifies that fraud by an insured will also affect bona fide third-party claims and that the total discharge of an insurer does not require a causal connection between the fraud and the insurer's liability to be proven.

Outside statements used as exhibits for identifying ordinary skill
Lee and Li Attorneys at Law
  • Intellectual Property
  • Taiwan
  • August 20 2018

In patent disputes, claim construction and a person having ordinary skill in the art determination often become the focus of the parties' arguments. Based on the principle of good faith and the doctrine of estoppel, it is common for one party to quote statements made by the other party outside the litigation proceedings as a basis for interpreting the claims or identifying ordinary skill. The Supreme Administrative Court recently assessed whether such statements may be used as evidence.

Refusal of consent under AML reporting regime: Royal Court weighs in
  • White Collar Crime
  • Guernsey
  • August 20 2018

The Financial Intelligence Service's recent refusal to consent to a proposed transaction under Guernsey's anti-money laundering reporting regime has resulted in the Royal Court deciding its first private law action between the person claiming the asset and the financial institution holding it. The decision clarifies the legal framework for determining the source of funds, which will be highly relevant to all regulated entities in Guernsey.

Latest negative list opens power sector up to foreign investors
Broad & Bright
  • Energy & Natural Resources
  • China
  • August 20 2018

The 2018 negative list was released in the middle of the current Sino-US trade war and is thus largely a gesture to show China's commitment to making consistent, reformative progress towards trade liberalisation. The new negative list has significantly opened the market up to foreign investment, particularly in the energy sector. Among the restrictions which have been lifted are those regarding power grid construction and the exploration and exploitation of oil and natural gas in free trade zones.

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