Corporate & Commercial updates
Austria
Judicial authorisation of transfer of shares with restricted transferability
Schoenherr- Austria
- 17 February 2020
The Supreme Court recently dealt, for the first time, with the judicial authorisation of a transfer of shares with restricted transferability in joint stock companies. The court's legal reasoning will be of great interest, especially for parties undertaking transactions where only a block of shares is sold and a transfer restriction is included in the articles of association, as is often the case in Austria.
Say on pay and related party transactions: implementation of EU Shareholder Rights Directive II
- Austria
- 03 June 2019
With the deadline for implementing the EU Shareholder Rights Directive II (SRD II) fast approaching, the government recently published a ministerial draft of the Stock Corporation Amendment Act 2019, which addresses the rules on say on pay and related party transactions. The draft seeks to minimise the administrative burden on listed companies by avoiding any 'gold plating'. Further, it closely follows SRD II and takes advantage of business-friendly options.
Bahamas
COVID-19: force majeure and contract frustration
Lennox Paton- Bahamas
- 05 October 2020
The COVID-19 pandemic has disrupted commercial activity on a global scale, challenging contracting parties' ability to fulfil their legal obligations. Force majeure clauses and frustration principles may provide some relief to those which may otherwise incur liability because of non-performance. However, there does not appear to be any clear case law precedent for COVID-19, so it is uncertain whether the pandemic will be deemed a frustrating event by the courts.
Bermuda
COVID-19 update
- Bermuda
- 30 March 2020
The Bermuda Registrar of Companies and the Bermuda Monetary Authority (BMA) recently issued information on the steps that they have taken to protect the public and ensure the continuity of business in Bermuda as it responds to the coronavirus. The registrar has implemented contingency measures to protect staff and members of the public, while the BMA has activated its business continuity plan and implemented social distancing protocols and remote working options for all external meetings.
Privy Council clarifies Bermuda's '60/40 rule'
- Bermuda
- 01 July 2019
In a judgment which is likely to have wide-ranging implications for local companies subject to the '60/40 rule', the Privy Council recently held that local companies may confer on non-Bermudians "de facto control by commercial arrangements", provided that non-Bermudians have no control over the manner in which directors and shareholders vote.
Deadline approaches for compliance with Bermuda beneficial ownership regime
- Bermuda
- 01 April 2019
Bermuda companies have until 30 April 2019 to comply with requirements introduced in 2018 to maintain a register of their beneficial owners. If a company is non-compliant with these requirements after this date, both the company and its directors and other officers may be subject to criminal sanctions.
Brazil
COVID-19 and increased liability of company managers
Freitas Ferraz Advogados- Brazil
- 14 December 2020
The COVID-19 pandemic has led to considerable financial and operational losses in several economic sectors. In this context, it is easy to imagine dispute scenarios involving manager liability – for example, with respect to their adoption of loss-mitigation measures which later result in a loss of revenue. In such situations, it would be difficult to ascertain which losses were actually attributable to the company's managers and which were exclusively a result of the COVID-19 pandemic.
Technology's role in commercial contracts
- Brazil
- 22 April 2019
Simple legal transactions and contracts can often be completed at the click of a button. However, there are a growing number of investment rounds in start-ups based on Brazilian versions of Silicon Valley contracts that unfortunately have not benefited from the critical eye and practical expertise of experienced lawyers who can examine the contracts under Brazilian law.
Stock options: local law and international accounting rules
- Brazil
- 25 February 2019
It is hardly surprising that Brazil's adoption of the International Financial Reporting Standards did not mesh perfectly with the Corporations Law. This article discusses the reasons for this incongruity, including that the international accounting model draws more inspiration from common law systems than from Brazil's civil law tradition and the temporal distance between the Corporations Law (although it remains modern in spirit) and the accounting rules, which are constantly evolving.
Cayman Islands
Use of digital contracts and electronic signatures
- Cayman Islands
- 25 May 2020
In light of the COVID-19 pandemic and with many people now working remotely, companies are increasingly considering the use of digital contracts and electronic signatures. To help minimise disruption and ensure business continuity, this article summarises the legal position in the Cayman Islands and provides practical advice on implementation.
The foundation company as a decentralised autonomous organisation
Ogier- Cayman Islands
- 27 April 2020
The Foundation Companies Law 2017 was a welcome addition to the Cayman Islands legal landscape. The law introduced a brand new legal entity known as the 'foundation company' – a remarkably flexible vehicle that operates like an incorporated trust, allowing it to function like a civil law foundation or common law trust while retaining the separate legal personality and limited liability of a company.
Appraising Section 238 fair value proceedings: an overview
- Cayman Islands
- 06 April 2020
Section 238 of the Companies Law (2020 Revision) provides an avenue through which shareholders of a merged or consolidated Cayman Islands company can apply to have the fair value of their shares determined by the Grand Court. Section 238 has its origins in Delaware law and was first introduced into the Cayman Islands Companies Law in 2009. After a relatively uneventful first few years in operation, Section 238 is now at the forefront of jurisprudence.
