Latest updates

How will Section 546(e) apply to public securities transactions in wake of Merit Management?
Caplin & Drysdale, Chartered
  • Insolvency & Restructuring
  • USA
  • May 25 2018

The Supreme Court's decision in Merit Management construes Section 546(e) of the Bankruptcy Code more narrowly than most lower courts have done before. Often referred to as the securities 'safe harbour', this provision prevents a bankruptcy trustee from unwinding settlement payments or other transfers made in connection with securities contracts if the payments or transfers were "made by or to (or for the benefit of)" certain kinds of market participant, including any stockbroker or financial institution.

Citizenship-by-investment programme – a legal overview
Savva & Associates Ltd
  • Immigration
  • Cyprus
  • May 25 2018

Cyprus's immigration policy and legal framework enable EU and non-EU applicants to obtain Cypriot citizenship on an expedited basis. The government has formulated a fast-track citizenship scheme aimed at high-net-worth individuals, investors and entrepreneurs. This allows successful applicants and their families to hold a Cypriot passport and enjoy all of the benefits afforded to Cyprus and EU nationals.

SARS speaks up: clarity provided on taxation of cryptocurrencies
Cliffe Dekker Hofmeyr
  • Corporate Tax
  • South Africa
  • May 25 2018

The South African Revenue Service (SARS) recently announced that it will continue to apply normal income tax rules to cryptocurrencies and expects affected taxpayers to declare cryptocurrency gains or losses as part of their taxable income. Due to the growing popularity of cryptocurrencies in South Africa and the absence of legislation concerning their taxation and regulation, SARS's decision to address this issue was widely anticipated.

Quebec goes it alone with sales tax proposal
Thorsteinssons LLP
  • Corporate Tax
  • Canada
  • May 25 2018

Quebec recently announced that it intends to expand its requirements for non-resident vendors to collect and remit Quebec sales tax on sales to Quebec consumers, effective as early as January 1 2019. It will be interesting to see whether the Quebec government has the authority to impose requirements on non-resident businesses that do not carry on business in the province. Another issue will be whether an assessment for failure to collect the tax can be enforced against a non-Quebec seller.

Berlin to Korneuburg: NIKI's insolvency proceedings
Clifford Chance Deutschland LLP
  • Insolvency & Restructuring
  • Germany
  • May 25 2018

Charlottenburg Local Court ordered insolvency proceedings for safeguarding NIKI Luftfahrt, a company incorporated under Austrian law with its registered office in Vienna. At the time, its indirect shareholder, Air Berlin (with its registered office in Berlin), had already commenced proceedings in Germany. While Charlottenburg Local Court was satisfied that NIKI's centre of main interest was in Berlin, the Berlin Court of Appeal decided that it had been wrong to assume jurisdiction.

Waiver leads to double tax liability on patent royalties
McDermott Will & Emery
  • Corporate Tax
  • USA
  • May 25 2018

Declining to address whether certain technology licensing royalties should be subject to taxation as income or capital gains, the US Court of Appeals for the Third Circuit found that a patentee-taxpayer had waived his claim on appeal and affirmed the Tax Court's decision that the royalties should be treated as income. The Third Circuit acknowledged that a patentable invention may be subject to capital gains treatment even without a patent or patent application.

60th anniversary of New York Convention: a Q&A
  • Arbitration & ADR
  • International
  • May 24 2018

In 2018 the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (known as the New York Convention) will celebrate its 60th anniversary. The New York Convention governs two fundamental aspects of international arbitration – namely, how states will treat arbitration agreements and arbitral awards that were made in other jurisdictions. There are 157 contracting states to the convention, which creates an almost universal regime governing these two important issues.

Tick, tock – the need to keep an eye on the clock in liquidator applications
Harney Westwood & Riegels
  • Private Client & Offshore Services
  • British Virgin Islands
  • May 24 2018

A recent Court of Appeal decision serves as a useful reminder to keep an eye on the clock when seeking the appointment of liquidators to a company in the British Virgin Islands. The decision makes clear that any extension must be expressly granted and legal practitioners must therefore keep an eye on the clock to avoid a deemed dismissal under Section 168 of the Insolvency Act.

Appropriate court in context of post-award of foreign-seated tribunal
Khaitan & Co
  • Arbitration & ADR
  • India
  • May 24 2018

The Bombay High Court recently ruled that an application under Section 9 of the Arbitration and Conciliation Act 1996 which had been filed following an award passed by a foreign-seated arbitral tribunal had to be brought before a 'court' as defined in the explanation to Section 47 rather than Section 2(1)(e)(ii) of the act. The judgment has clarified, and to a large extent simplified, the procedure for a foreign award holder.

Court reaffirms high threshold for case management stays
Harney Westwood & Riegels LLP
  • Private Client & Offshore Services
  • Cayman Islands
  • May 24 2018

In a recent case, a petition to wind up a company was issued by its majority shareholder. The minority shareholder – a Samoan entity – issued an application to stay the petition on the basis that there were related proceedings in Samoa and held that Samoa was the proper forum in which to argue these matters. The court refused to grant the stay, finding that the high burden imposed in stay applications of this type had not been met.

CCI re-imposes penalty of Rs522.4 million on BCCI for abuse of dominance
Vaish Associates Advocates
  • Competition & Antitrust
  • India
  • May 24 2018

The Competition Commission of India (CCI) has re-imposed a penalty of Rs522.4 million on the Board of Control for Cricket in India (BCCI) for abuse of its dominant position in the market. The BCCI argued that it is a not-for-profit organisation established to promote cricket in India and does not engage in any kind of commercial activity with the aim of profiting. However, the CCI held that despite there being no profit motive, the BCCI should be considered an enterprise under the Competition Act.

Establishing 'foreign' trusts in the United States
Kozusko Harris Duncan
  • Private Client & Offshore Services
  • USA
  • May 24 2018

Trusts remain a flexible succession planning tool for families wishing to pass wealth to future generations in a responsible manner and can include philanthropic goals. The wealth-creating settlor wants to establish such a trust in a jurisdiction with well-established trust laws, a stable business environment, responsive and efficient trust officers and clearly stated comprehensive annual fees. When comparing jurisdictions, the United States should be included.

The devil is in the details: transaction value draft guidelines
Preslmayr Attorneys at Law
  • Competition & Antitrust
  • Austria
  • May 24 2018

In 2017 an additional merger threshold was implemented to catch cases that fall below existing turnover thresholds but where the consideration for the transaction exceeds a specified amount and the target is active in the relevant country to a significant extent. While the first cases and legal discussions have shown that there is considerable uncertainty regarding the application of this legislation, new draft guidelines have been published on the application of the new, quite difficult piece of legislation.

Court finds real likelihood of bias and orders arbitrator's dismissal
George Z Georgiou & Associates LLC
  • Arbitration & ADR
  • Cyprus
  • May 24 2018

In a recent Limassol District Court case, the applicants applied for the dismissal and replacement of an arbitrator. They argued that the relationship between the arbitrator and the respondents' main witness in the arbitration proceedings and his brother would lead a reasonable person to find that there was a real likelihood of bias. As a result, the applicants argued that the relationship between the parties constituted misconduct in arbitration proceedings.

California Court of Appeal invalidates employee arbitration clause on basis of exemption to Federal Arbitration Act
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • May 23 2018

The Fourth District of the California Court of Appeal recently ruled that a truck driver could not be compelled to arbitrate his claims in a state wage and hour class action against his staffing company employer, notwithstanding an arbitration clause in his employment contract that required individual arbitration rather than class actions. This ruling continues a line of California state court decisions giving a broad reading to the Federal Arbitration Act's transportation worker exception.

Fourth Circuit: no ratification, no vicarious liability
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • May 23 2018

The US Court of Appeals for the Fourth Circuit has affirmed summary judgment in favour of two Telephone Consumer Protection Act defendants that the panel found were not vicariously liable for calls made by telemarketers promoting their products. The court found that the defendants had not ratified the allegedly illegal activity cited in the plaintiffs' complaint and could not be held liable under the statute. The decision offers a roadmap for parties seeking to avoid vicarious liability under the act.

Legislative changes: tax deduction for transportation costs
Fenech & Fenech Advocates
  • Employment & Benefits
  • Malta
  • May 23 2018

Maltese income tax legislation provides specific rules for determining the types of expense that are deductible against income. Legal Notice 67 of 2018 on tax deductions for employee transportation costs provides for a new tax deduction. The new rules will apply to transportation costs incurred for the transport of employees from assessment year 2018 and will remain in effect until assessment year 2020.

International Convention for the Control and Management of Ships' Ballast Water and Sediments ratified
Elias Neocleous & Co LLC
  • Shipping & Transport
  • Cyprus
  • May 23 2018

Cyprus recently ratified the International Convention for the Control and Management of Ships' Ballast Water and Sediments. Its objective is to prevent, reduce and control pollution of the marine environment – especially the spread of harmful aquatic organisms from one region to another – and the consequential damage to health and natural resources. To meet this objective, the convention establishes standards and procedures for the management and control of ships' ballast water and sediments.

USTR calls on Mexico to improve pharmaceutical and medical device innovation and market access
Sanchez-DeVanny Eseverri SC
  • Healthcare & Life Sciences
  • Mexico
  • May 23 2018

The Office of the United States Trade Representative recently issued its Special 301 Report. Section I.A.1 of the report, which concerns pharmaceutical and medical device innovation and market access, calls on Mexico to address pharmaceutical and medical device IP-related challenges, lists the steps that it should take in order to open its markets to IP-intensive pharmaceutical products and medical devices and encourages it to recognise the value of innovation in these fields.

Bill 148: Ontario makes important changes to health and safety law
Fasken
  • Employment & Benefits
  • Canada
  • May 23 2018

While the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') made many changes to the Employment Standards Act 2000, it made only one change to the Occupational Health and Safety Act. However, the Stronger, Fairer Ontario Act (Budget Measures) 2017 also made changes to the Occupational Health and Safety Act – most significantly, an increase in the maximum fines following a conviction and a change to the limitation period for charges to be laid.

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