January 2014 Issue
        
Book 5

Greetings,

 

Welcome to 2014's first issue of Corporate Counsel Connections. In this issue, you will find a selection of 31 informative and timely articles concerning a variety of legal topics all of which were authored by TerraLex Member Firm lawyers from around the world. For your convenience, we have provided topical links that will take you to the articles that most interest you.

 

As one of the world's leading law firm networks with more than 150 member firms and 17,000 lawyers in 100 countries, TerraLex serves as a "first stop" for many corporate counsel when searching for expertise around the world. Our Global Search tool available at this link, provides the ability to search for specific expertise anywhere in the world.

 

Do you have a topic you would like addressed? Please share your suggestions for future topics with Tim Shannon, TerraLex's Marketing and Communications Manager, at tshannon@terralex.org. Additionally, Tim takes great pride in assisting corporate counsel with finding lawyers with the right expertise, in the right jurisdiction. Please feel free to ask for his assistance when your needs arise.

 

Pleasant reading,

 

Harry P. Trueheart, III

Chair and CEO - TerraLex

 

 

 


Jump to Topic
  
 

 

  
 
  
 
  
  
Useful Links
 

administrative_lawAdministrative Law 

  

New Bad Actor Disqualification Events Trigger Disclosure Obligations and Possible Loss of Accredited Investor Exemption (USA - Virginia)

 

In September, the SEC adopted final rule amendments related to certain new bad actor disqualification events. These new bad actor disqualification events now trigger disclosure obligations to potential investors and the possible loss of the "accredited investor" exemption in Rule 506 of Regulation D for offers and sales of securities.

  

  

Federal Efforts to Reform Auto Lending Based on "Disparate Impact" Theory Gain Steam (USA - Virginia)

  

Few U.S. Supreme Court consumer protection cases over the past year were as closely watched and anxiously anticipated as Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc.  Squarely at issue in Mount Holly was whether unintentional discrimination is prohibited by federal consumer protection laws.  However, when news broke that the parties had settled the case, it was clear that the Supreme Court would lose this chance to weigh in on the viability of disparate impact theory, which also serves as a cornerstone of recent efforts to regulate the financial industry.

  

  

TCPA Rule Changes are in Effect: Is Your Marketing Campaign Ready? (USA - Virginia)

  

Telephone Consumer Protection Act (TCPA) lawsuits have climbed significantly from almost none five years ago to more than 1,000 in 2012, with a 50 percent further increase this year. The rule changes promulgated by the Federal Communication Commission provide aggressive plaintiffs' lawyers with new theories and legal support for yet more class action lawsuits under the TCPA.

  

  

alternative_dispute_resolutionAlternative Dispute Resolution (ADR)/Arbitration/Mediation 

  

Mind Your P's and Q's in Mediation (USA - New Jersey)

 

This article discusses how the early proactive use by in-house and outside attorneys of mediation in business litigation can more effectively settle disputes and reduce the client's transactional costs.

  
antitrust_competitionAntitrust and Competition Law/Unfair Competition

 

The Proposed New Commercial Code (Spain)

 

A Coding Committee, assisted by more than 60 experts and after almost 7 years of hard work, finally produced the proposed new Commercial Code on 20 June 2013.

 

Following a request by the Spanish Justice Minister in an Order on 7 November 2006, on 20 June 2013 Section Two (Commercial Law) of the General Coding Committee produced a new text to update and modernise the Commercial Code.
  
 
business_organisationsBusiness Organizations

 

Companies as Statutory Bodies under the New Civil Code and Business Corporations Act (Czech Republic)

 

On 1 January 2014, the new Civil Code and the Business Corporations Act will take place. It brings the possibility for a company to be a member of the statutory body of another company. This Article concerns some of the new features which this concept brings, such as acting on behalf of company who is a statutory body in another company, requirements with which the company has to comply and etc.

  

  

Corporate Social Responsibility - Complexity of Compliance (India)

 

As the title suggests, the article highlights the legal and regulatory labyrinth which corporates must negotiate as they discharge the onerous statutory burden of allocation, mandatory spend, disclosures, filings and reports. Global businesses with Indian entities must prepare themselves to not only undertake the obligation to spend on the legally prescribed list of socially desirable activities but render a true and accurate account to the government. All this is mandated in the newly enacted legislation - The Companies Act, 2013 and the Draft Rules which are in the public domain for discussion.

  
 
capital_marketsCapital Markets

  

The Alternative Fixed Income Market (MARF): A Real Alternative to Bank Financing in Spain? (Spain)

 

"A new alternative market to stimulate access to borrowing for companies and to provide an opportunity for qualified investors to invest in fixed income securities of SMEs with good business prospects"

  

  

Shift in SEC Policy May Require Admissions of Wrongdoing in Certain Cases (USA - Georgia)

 

In recent years, the SEC's "neither admit nor deny" policy has faced increasing scrutiny and undergone modifications. Recent cases and pronouncements indicate that the SEC is moving away from the "neither admit nor deny" settlement policy and may require admissions in some cases.

 

  

FINRA Enhances its Public Offering Review Programs (USA - Virginia)

 

In September, the Financial Industry Regulatory Authority ("FINRA") implemented certain enhancements to its public offering review programs, including introducing an immediate clearance process for certain shelf offerings and a limited review process for certain non-shelf offerings of exchange-listed securities. 

 

 

commercial_transactionsCommercial Transactions and Finance

  

Canadian Commercial Restrictive Covenants Enforceable (Canada)

 

Canada's Supreme Court has recently confirmed that there is a sound legal basis to enforce commercial restrictive covenants negotiated in the transactional context. While this decision arose from a case in the province of Quebec, the impact of the ruling is arguably important to businesses across Canada.

  

  

First Circuit Court of Appeals Upholds Local Tobacco Ordinances (USA - Virginia)

 

Last year, a decision came from the United States District Court for the District of Rhode Island where several tobacco companies challenged the constitutionality of two local ordinances. The lawsuit sought to overturn two Providence, Rhode Island, ordinances, which ban certain promotional discounts and severely restrict the sale of flavored tobacco products.

  

  

contracts_agencyContracts/Agency

  

Good Faith - Is this Now a Given under English Law? (England)

 

The English Court of Appeal recently considered whether a contract contained a general duty of good faith. The court's decision contrasted with previous case law in the lower courts and it now appears the scene is set for further litigation exploiting the uncertainty as to implied duties of good faith.

  

 

criminal_lawCriminal Law/White Collar Crime

  

Barriers Posed under Swiss Criminal Law that need to be Considered in Defending Swiss Residents Indicted by Foreign Authorities (Switzerland)

 

While preparing the defense in a foreign criminal investigation against a Swiss resident, foreign and Swiss attorneys as well as their client may become involved in criminal investigations in Switzerland based on their potential violation of Swiss rules of criminal law whose scope of application is not well defined and may appear somewhat unusual, in particular to foreign attorneys.

  

  

cyberspace_lawCyberspace Law/E-Commerce/Internet Law

  

Caught in Limbo: Copyright and Social Media Content (USA - Virginia)

 

The sharing of content on social media sites like Facebook, Twitter, Tumblr and Instagram is steadily increasing pressures on legacy copyright law regimes worldwide. The passage and forthcoming implementation in the UK of the Enterprise and Regulatory Reform Act promises only to accelerate the conflict between new social media services and copyright.

  

  

distribution_agreementsDistribution Agreements/Distributors/Sales Representatives

  

The Israeli Supreme Court Fortifies the Status of Agents (Israel)

 

Has the spirit of social protest reached the Israeli Supreme Court? Are the Israeli courts seizing the opportunity to support private distributors rather than the large food manufacturers? Should the large manufacturers consider themselves warned?

  
 
energy_natural_resourcesEnergy and Natural Resources Law

  

Changes in the Fuel Market (Czech Republic)

 

Act No. 234/2013 Coll., amending the Act on Fuel and the Act on Trade Licensing, as amended, took effect in October 2013 with the main aim of preventing tax evasion in the fuel market. According to some press reports and responses from affected parties the amendment limits the fuel market and discriminates smaller fuel distributors. This can affect fuel prices and ultimately business in various sectors.

  

  

Leading the Way: California Adopts Country's First Energy Storage Targets for Utilities (USA - Virginia)

 

In October, the California Public Utilities Commission ("CPUC") unanimously voted in favor of adopting a program that sets energy storage targets for the three-investor owned utilities ("IOUs"), Pacific Gas & Electric Co., Southern California Edison, and San Diego Gas & Electric. Such an action marks the first time that energy storage has been mandated (even as a target) in the United States. The decision provides for the evolution of the electrical grid and the growth of the energy storage industry. 

  
  
environmental_lawEnvironmental Law/Protected Species

  

Captured by Over-Regulation or Sequestered by Under-Regulation? The Current and Future State of Carbon Capture and Sequestration in the United States (USA - Utah)

 

Carbon capture and sequestration (CCS) technology has faced many obstacles and has developed with fits and starts in the United States. Some view the technology as nothing more than a pipe dream cited by politicians in an attempt to convey support for coal, while also appearing tough on climate issues. Others view it as a vital component of a strategy to slow, and eventually reverse, global climate change. This article seeks to identify existing and future regulations likely to impact CCS deployment in the United States, while also predicting the regulatory climate likely to foster its long term development.

  
  
immigration_visas_work_permitsImmigration/Visas/Work Permits

  

The New Spanish Framework for Entrepreneurs (Spain)

 

This article explores the Spanish Government's recently approved new measures to foster entrepreneurial activity and attract foreign investment.

  

  


Immigration and Innovation: Immigration Reform Driven by the Tech Sector  (USA - Virginia)

 

By 2020, it is expected that there will be over 120,000 job openings a year requiring a computer science degree, while the number of new U.S. computer science graduates will be less than half that number.  The growing need for employees in the STEM fields (i.e. science, technology, engineering, and math), combined with a dearth of such employees among United States citizens, put the tech sector into the role of lobbyist for immigration reform.  The technology industry's goals are straightforward, and are very likely to soon be the law:  more visas for STEM workers, the creation of an entrepreneur visa to lure talent to the U.S., and an overhaul of the Green Card system to make it easier to retain that talent.

  
  
information_technologyInformation Technology/Computer Law

  

Achieving IT Outsourcing Success: Our Top Tips (England)

 

RPC's top tips for achieving IT outsourcing success and ensuring its potential benefits are realised in an increasingly competitive global economy.

  
  
InsuranceInsurance

  

Foreign Insurers and Unlicensed Insurance in Canada (Canada)

 

This article addresses certain issues relating to foreign insurers conducting unlicensed insurance in Canada, a few years after the federal regulator issued clarifications regarding the circumstances in which federal licensing is required.

  
  
intellectual_propertyIntellectual Property

  

Rihanna's Image Protected under the "Umbrella" of Passing Off (England)

 

"In an unprecedented decision by the High Court of England and Wales, pop star Rihanna successfully relied on passing off to claim compensation for Topshop's unauthorised use of her image on a t-shirt."

  

  

Trade Secrets - A Unified European Regime? (England)

 

"A recent study prepared for the European Commission concluded that harmonisation of laws dealing with trade secrets and confidential business information across the EU would bring cost savings benefits, greater cooperation and sharing of trade secrets.  However, the question remains: does one size fit all?"

  
  
litigation_business_commercialLitigation (Civil/Business and Commercial)

  

Libor Manipulation Litigation: Current Litigation and the Changing Landscape (USA - Alabama)

 

Although LIBOR's pervasive effect throughout the financial market opened the floodgates for litigation, recent opinions have drastically limited claims plaintiffs will be able to pursue in LIBOR Manipulation Litigation.

  
  
mergers_acquisitionsMergers and Acquisitions

  

"Open for Business" - The New Australian Government's Position on Foreign Investment and Trade (Australia)

 

"The new Australian government's claim that the nation is "open for business" is set to be tested by upcoming decisions on foreign investment."

  
  
taxationTaxation

  

Canadian Branch Profits Tax - Challenging the Denial of Treaty-Benefits for US LLCs (Canada)

 

Despite recent amendments to the income tax treaty between Canada and the United States that were intended to provide relief in respect of hybrid entities with cross-border investments and operations, the Canada Revenue Agency continues to deny - incorrectly in our view - the benefits of the reduced branch profits tax rate provided for thereunder in the case of fiscally transparent US limited liability companies with non-corporate, treaty-eligible members.  In this article, we challenge the Canada Revenue Agency's position and put forward an alternative (and, in our view, more appropriate) interpretation of the relevant treaty provisions. 

  

  

IRS Issues Draft FATCA FFI Agreement and Announces Positive New Rules for Insurance Companies (USA - Georgia)

 

"The Internal Revenue Service recently issued a notice that includes guidance for foreign financial institutions, changes the IRS intends to make to the recently released FATCA regulations and forms, and provisions that will affect property and casualty insurance companies and brokers."

  

  

Sales and Use Tax Issues all In-House Counsel Need to Consider in the Digital Economy (USA - Georgia)

 

The state and local tax ramifications of digital economy transactions (buying and selling of cloud computing services, electronic payment processing, etc.) are incomplete, ambiguous, and evolving. This Article highlights a few key state and local tax issues that businesses should consider when buying or selling products in the digital economy and negotiating contracts for those transactions.

  

  

Tax Benefits of Finance Lease Transactions in Turkey Within the Framework of Recent Developments (Turkey)

 

"The new Finance Lease Law introduces sale and leaseback transactions within the scope of finance leases. In line with the provisions of the Finance Lease Law; Law No.6495 provides with remarkable tax benefits for finance lease transactions. Such developments and tax benefits are of significant importance for investors."