Tag results for 'Business Law International'
Business Law International (BLI) – September 2024
Released on Sep 25, 2024
Book Review: Governing Law Risks in International Business Transactions
Released on Sep 25, 2024
Case Comment: Mac Attack – EU General Court Rules on Revocation Action Against McDonald’s Big Mac Trademark
On 5 June 2024, the General Court ruled on a long-running trademark dispute between Supermac (Holdings) Ltd (‘Supermac’) and McDonald’s International Property Company, Ltd concerning a trademark registration for what may be considered the latter’s most famous menu item, the Big Mac. Supermac’s success in the case provides a salient reminder to rights holders that, even for marks as established and well known as ‘BIG MAC’, they face partial or even full revocation of their registered rights if they cannot provide sufficient evidence of use of the mark across all goods and services for which they are registered.
Released on Sep 25, 2024
The UK’s Digital Markets, Competition and Consumers Act Passes into Law
On 24 May 2024, in one of the last official legislative actions of the UK’s government prior to the July general election, the Digital Markets, Competition and Consumers Act 2024 (the ‘DMCC Act’) was passed by the UK Parliament, thereby making the UK the fourth jurisdiction in the world to introduce a specific regime for the regulation of digital platforms alongside the European Union, Germany and Japan. It appears that countries such as Australia, Brazil, India and Turkey will be following suit with their own dedicated digital platform regulatory regimes. In overt statements of self-affirmation, UK authorities and commentators have been at pains to describe their digital platforms regime as more ‘flexible’, ‘bespoke’ and ‘targeted’ than their EU counterpart, whose regulatory regime they describe variously as ‘blunt’ and applying ‘blanket rules’ on companies that run the risk of creating ‘unnecessary burdens on business’. While the heart of the new legislation focuses on the creation of a regime for the imposition of obligations on digital platforms, the DMCC Act also introduces important provisions that change existing competition law practice and the enforcement of consumer protection rules.
Released on Sep 25, 2024
Cybersecurity Risks to Business and Legal Sectors
In an increasingly connected world where remote working is the norm, the speed and demand for instant access to information has followed the trajectory of Moore’s law. Our services in the knowledge economy are available – and accessible – instantaneously through digital communications and videoconferencing anywhere in the world, at any time. Locks and cameras have been replaced by firewalls, compliance protocols and data monitoring, and we are more reliant on third-party security and cloud storage for business efficiency. Our papers have been replaced by mobile devices, the sensitive material by digital data on proprietary software and systems, communications through apps and Wi-Fi networks. Our personal lives merge imperceptibly but progressively with professional demands in this 24/7 solutions-orientated work environment. All these touchpoints give rise to increasing vulnerability in organisations: cyber risk management and security has never been more important. This article seeks to: explore those risks by examining cybersecurity at a macro level; address the ways to build resilience; and discuss the stumbling blocks for obtaining global cybersecurity.
Released on Sep 25, 2024
Exploring Resources in Extreme Cold Environments – the Antarctica Case: Feasibility or Fantasy?
This article assesses the feasibility and implications of resource exploration and exploitation in Antarctica. It discusses mineral and freshwater exploration in the light of the continent’s geological features and improved accessibility owing to the melting ice caps. Analysis of legal frameworks, such as the Antarctic Treaty System and conservation conventions, reveals challenges in regulating exploitation. Geopolitical dynamics surrounding resource exploitation are addressed, identifying interests and conflicts among stakeholders. By integrating these aspects, the article offers initial insights into the opportunities and obstacles of resource exploitation in Antarctica, aiming to facilitate decision-making and policy formulation in this unique and delicate environment.
Released on Sep 25, 2024
The Climate Emergency Disputes Crisis Affecting Industry Today
As the world grapples with the escalating impacts of climate breakdown and the urgent need to transition to sustainable energy sources, various industrial sectors find themselves at a crossroads. The shifting climate is not only an environmental challenge but also a formidable business risk, altering market dynamics, regulatory landscapes and operational conditions globally. Industries must navigate a complex array of threats, from physical damage due to extreme weather events to economic pressures arising from stringent emission regulations and volatile energy markets. This article delves into the specific dispute risks posed by the climate crisis and the energy transition affecting several key industry sectors, exploring the profound implications for their operations and outlining strategies for resilience and adaptation in a rapidly evolving global context. It also looks at how these dispute risks can be mitigated and, in particular, how conflicts arising from climate breakdown can be managed. Traditional dispute resolution mechanisms will, in many cases, not be adequate to deal with these new forms of conflict. Thought leadership is needed to address situations where dialogue and consensus will form the basis for better and lasting solutions as opposed to adversarial processes. Novel dispute resolution tools will have to be developed and current tools modified to meet this need. Business has not yet taken adequate steps to recognise and assess climate dispute risk, and this article aims to highlight this and suggest means to mitigate it.
Released on Sep 25, 2024
Rethinking the Path to Digital Platform Regulation in Brazil: a Critical Appraisal of DMA-inspired Bill 2.768/22
Inspired by other initiatives of ex ante regulation in digital markets, the Brazilian Bill 2.768/22 targets digital service providers that control essential access to certain services. If the bill is approved by Congress, it will cover various digital platforms, such as social networks, messaging services and search engines, imposing obligations related to transparency, fair service provision, data handling and access for professional users. Enforcement mechanisms include fines, operational restrictions and the creation of the Digital Platforms Oversight Fund to support regulatory activities. This article critically examines Bill 2.768/22, comparing it to the European Union Digital Markets Act and similar statutory provisions from other jurisdictions, most notably Article 19a of the German Competition Act and the United Kingdom's recently approved Digital Markets, Competition and Consumers Act. The article highlights shortcomings of the Brazilian Bill under discussion that would need to be addressed in order to avoid potential negative impacts in innovation and other distortions in Brazilian digital markets.
Released on Sep 25, 2024
Case comment: AI Art and Copyright
The growing use and popularity of generative artificial intelligence (AI) have presented the US Copyright Office and US courts with novel questions of copyright law. The Copyright Office has already begun addressing copyright registration applications involving AI while, at the same time, copyright infringement cases involving AI have begun working their way through our courts. The law is far from settled, but standards are materialising that can guide practitioners working in this rapidly evolving area of law.
Released on May 12, 2024
Case Comment: Clarifying the Iniquity Exception: Court of Appeal Provides Guidance on the Applicability of the Exception to Legal Privilege
Privilege is a fundamental legal right and a powerful tool under English law. Legal advice privilege protects communications between a lawyer and a client that are made for the purpose of giving or receiving legal advice. Litigation privilege protects communications between lawyers or their clients and any third party for the purpose of obtaining advice or information in connection with existing or reasonably contemplated litigation. Privilege is vital in allowing parties to access legal advice safe in the knowledge that confidential and sensitive information will not fall into the public domain. Were these protections not in place, parties may fail to seek legal advice or fail to communicate openly with their lawyers and there would be a risk that legal advisers would have to advise based upon an incomplete factual basis. Despite the importance of the rules of privilege, it has long been understood that legal advice privilege and litigation privilege cannot be asserted in respect of communications that further a criminal or fraudulent purpose. This principle is known as the ‘iniquity exception’. The recent Court of Appeal judgment in Al Sadeq v Dechert LLP and Others provides helpful guidance on the applicability of the exception and the threshold that must be met in order for the exception to be applied by the court. This article analyses the Court of Appeal’s judgment and comment on the key take-away points for practitioners.
Released on May 12, 2024
Kosovo’s Membership of International Organisations
Although the International Court of Justice in 2010 concluded that Kosovo’s independence was not contrary to international law, Kosovo’s continued standing as a semi-recognised state hinders its acceptance into international organisations. This article reviews Kosovo’s unsuccessful (the UN, UNESCO and Interpol), successful (the IMF, the World Bank) and potentially successful (the Council of Europe) applications for acceptance into international organisations. It argues that, at least in terms of its membership of international organisations, for as long as Kosovo’s statehood remains contested, it will be a ‘Western’ rather than a fully ‘international’ state, for three reasons. First, because international law is strongly biased against secession, secessionist states such as Kosovo face obstacles when attempting to join international organisations, even if supported by powerful countries such as the US. Second, Kosovo’s chances for acceptance into international organisations are higher if the organisation is heavily influenced by the US and key Western European countries, and decision-making is not based on unanimity. Finally, if competing powers such as Russia can exercise veto rights and/or the scope of states voting for acceptance of Kosovo into international organisations is extended beyond North America and Europe, the probability of acceptance by such international organisations decreases.
Released on May 12, 2024
Historical and Current National Environmental Tax Policies and the Position of Brazil
In the face of growing environmental challenges, governments worldwide are increasingly turning to innovative solutions to address the impact of human activities on the planet. The evolution of environmental taxes is a fascinating journey that mirrors society’s changing attitudes towards nature, sustainability and the urgent need to address environmental hurdles. As one delves into the history of environmental taxes, it is possible to uncover a timeline marked by pivotal moments, evolving various policies and a growing global consciousness regarding the impact of human activities.
Released on May 12, 2024
Supply Chains: an Analysis of Nearshoring and Friendshoring Trends
Organising a worldwide operation of supply chain distribution is not easy; on the one hand, one needs a detailed view and analysis of customs and labour considerations, taxes, costs of transport, cultural similarities and differences while, on the other hand, one needs an overview of all these issues and to be able to consider them as a whole. It is in this context of strategic decision-making that the concepts of nearshoring and friendshoring arise. These two concepts are of central importance and require a differentiated understanding of the associated legal and cultural intricacies. The 2020 pandemic came about in a context in which the model of productive globalisation based on international supply networks was already showing signs of exhaustion or even reversal owing to many reasons (environmental concerns, protectionist measures, geopolitical crisis, etc). This could be seen in companies’ decisions to return certain segments of production to their countries of origin or to nearby countries. This article deals with the advantages, disadvantages and potential risks of nearshoring and friendshoring, with a special emphasis on Argentina. It also looks at the general significance of near- and friendshoring in the future. In addition, it will highlight the legal considerations that lawyers need to pay particular attention to in the context of near- and friendshoring.
Released on May 12, 2024
The Evolution of Public–Private Partnerships in Pakistan
Public–private partnerships (PPPs) are collaborative arrangements in which the public and private sectors invest resources and skills to achieve common goals, usually in infrastructure development, public service provision or economic development. These collaborations capitalise on the strengths of both sectors: the public sector’s regulatory and social mandate and the private sector’s efficiency, creativity and funding. PPPs contribute significantly to economic development by facilitating large-scale initiatives that would otherwise be impracticable for the public sector owing to financial restrictions or a lack of technical skills. Governments can speed up infrastructure construction, such as roads, hospitals, schools and water systems, which are critical to a country’s economic growth and societal wellbeing, by involving private companies. These collaborations also allow for risk sharing, in which the private sector absorbs some of the financial, operational or other risks, thereby leading to more efficient and successful project delivery. Furthermore, PPPs can deliver more timely and high-quality services to the public, as private sector entities are frequently under competitive and budgetary pressure to maintain high standards. However, the success of PPPs is dependent on a strong legal and regulatory framework, clear and transparent contracts and rigorous project management to guarantee that the public interest is protected and that the expected social and economic advantages are realised.
Released on May 12, 2024
Cross-border M&A Transactions Involving Multilatinas in Emerging Latin American Economies: the Post-Covid-19 Outlook
Despite a general drop in the global number of M&A deals in the aftermath of the global pandemic, multilatinas – companies operating in many Latin American countries – seem to be boosting the market, especially when it comes to cross-border deals involving Latin American emerging economies. The aim of this article is to analyse the recent cross-border M&A transactions between multilatinas and the novel key issues that corporate lawyers should consider in this context.
Released on May 12, 2024
Business Law International (BLI) – May 2024
Released on May 12, 2024
Case Comment: Quincecare Revisited – The Supreme Court Decision in Philipp v Barclays Bank UK PLC
In the recent case of Philipp v Barclays Bank UK PLC [2023] UKSC 25 in England, the Supreme Court confirmed that the Quincecare duty of care does not extend to circumstances where a customer gives explicit instructions to a bank to make a payment. This article considers the Philipp v Barclays Bank UK PLC case in more detail, revisiting the Quincecare duty of care owed by banks and the position at law going forward, including as a result of changes to laws and guidelines that have arisen in light of the facts in this case to address advance push payment fraud. It looks at key considerations for business customers and banks to ensure that they take proactive measures to align themselves with the evolving legal landscape.
Released on Jan 19, 2024
Data Protection and Privacy Class Action Lawsuits in the UK: the Damages Conundrum
The majority of class action lawsuits in privacy and data protection in the United Kingdom have not succeeded. This may appear surprising, given the breadth of data rights found in the UK GDPR, the Data Protection Act 2018 and the development of the tort of misuse of private information. This article reviews the cases to date, including the most recent attempt in Prismall v Google UK Limited [2023] EWHC 1169 (KB), and examines why class action lawsuits – generally referred to as ‘group litigation’ in England – have failed to provide results for individuals whose data and information have been misused or inadequately protected.
Released on Jan 19, 2024
Looking for Venture Debt? What to Expect
Venture debt is an attractive alternative for startups that need to raise funds to expand their growth. Moving away from venture capital and traditional loan lending, venture debt is composed of different terms and standard provisions that allow it to work in the venture ecosystem. So how do these terms work and what are the items that a loan agreement will include as standards of the industry? This article will first consider structural terms, without which a venture debt agreement would not exist. These are the parties involved (lender and borrower), the amount lent (which varies depending on the lender), the term of the loan (usually 36 to 48 months) and the interest rate (which is both a structural term and a pricing term). Secondly, the article looks at pricing terms, which include all elements of payment from the company to the venture lender. These include interest rates, additional fees such as commitment fees, prepayment fees and other kinds of fees, collateral (mainly intellectual property and/or an all-asset lien) and warrants (an equity interest on the company). Finally, the article looks at legal terms, which include additional obligations and provisions to avoid or engage the borrower in actions that benefit the loan. These include standard provisions such as closing conditions, representations and warranties, and covenants (either positive, negative and, less commonly, financial covenants), as well as other provisions, such as the material adverse change (MAC) clause, the investor abandonment clause and the event of default provision. These terms are particularly a matter of negotiation in a venture debt deal, and in any case each agreement will find a balance for the lender and borrower for venture debt to work in the specific context.
Released on Jan 19, 2024
Demystifying Protectionist Regimes in the Age of Globalisation: A Brief Comparative Analysis of the Indian and Other FDI Screening Regimes
The world is experiencing the effects of increased globalisation at a transcendental speed. One of the key factors behind such globalisation is foreign direct investment (FDI). FDIs often outperform government aids and portfolio investments, as one of the largest sources of non-debt external financing. In addition to the direct benefit of capital inflows that FDIs bring, certain indirect benefits follow suit. Access to diversified international markets, an increase in domestic supply chains, reforms in domestic laws and regulation to keep pace with modernisation are key indirect benefits, which have made FDIs an attractive option for domestic markets. However, while modern governments are well informed about the lucrativeness of FDIs coming from resource-rich destinations, many countries have begun to implement rigid screening mechanisms before permitting FDI inflows. The rise of opportunistic takeovers and foreign investments made with undesirable motives has propelled an increase in FDI screening mechanisms across countries. The first part of this article aims to understand the general rise of protectionism in the formulation of FDI policies and the impact of the Covid-19 pandemic on the same. The second part involves an analysis of Indian FDI regimes with a protectionist character. Finally, in the third part, the authors compare the Indian FDI regime with other FDI regimes around the world, to identify protectionism in FDI laws.
Released on Jan 19, 2024
Gender Balance Quotas – the Key to Gender Equality?
Gender equality in boardrooms is losing momentum. Some countries have already made efforts to compensate for the underrepresentation of women on boards through legislative action – an approach that is now also being pursued by the European Union with the adoption of the so-called ‘Women on Boards’ Directive (EU) 2022/2381. This article provides an overview of the regulations passed and sheds light on their background. It also compares the different national approaches to improving female representation on boards and their effectiveness, focusing on the goal of promoting long-term change in gender diversity.
Released on Jan 19, 2024
The Impact of ESG Considerations on Private Equity and Venture Capital Transactions: the Western Scenario
At a global level, environmental, social and governance (ESG) considerations continue to have increasing relevance in M&A transactions. Undoubtedly, ESG factors have become key drivers in private equity (PE) and venture capital (VC) deals because a target’s strong ESG performance can increase its long-term value. On the other hand, a target’s poor ESG performance can create reputational and financial risks for the buyer. Because of this, it is crucial for PE and VC funds to assess ESG factors and the target’s alignment with them. With its Action Plan on sustainable finance, the European Commission has been a first mover, imposing a series of obligations and standards that have a direct impact on the European capital market, but also indirectly on markets in non-EU countries such as the UK and the US. When PE and VC funds operate in the European market and elsewhere they must now meet strong sustainability standards and expectations to attract capital and raise funds from investors in the Western Hemisphere. Obviously, in the global PE and VC markets, EU PE and VC funds are more affected than non-EU funds; however, beyond regulatory obligations, the impact of ESG factors and risks on mainly PE transactions can be attested. With regard to VC deals, the impact of ESG risks and factors is currently variable depending mainly on the size of the deal and the sector of the target. Best practice in PE transactions isn’t reflected as frequently in VC transactions with the exception of scale-up rounds where the size of the target and the size of the investments (including A rounds) increasingly require an ESG-oriented approach. Given the relevance of EU regulation and the scope of its application, this analysis is based on the European perspective; however, it is also applicable to non-European funds, which often market their funds into the EU, for example US and UK funds, and is often used as the reference framework of a market standard that is being created in the PE and VC industry. Considering the wide range of implications of ESG factors in PE and VC transactions, this legal analysis is focused only on non-listed companies.
Released on Jan 19, 2024
Business Law International (BLI) – January 2024
Released on Jan 18, 2024
Business Law International (BLI) – September 2023
Released on Sep 25, 2023
Case Comment: The Latest on Covid-19 Non-damage Business Interruption Claims in the UK: Stonegate v MS Amlin, Greggs Plc v Zurich and Various Eateries v Allianz
The government-imposed lockdowns and restrictions necessitated by the Covid-19 pandemic, together with the changes in consumer behaviour that the virus triggered, had a radical impact on the turnover of many businesses. Those businesses often looked to their business interruption insurance to recoup their losses. In relation to such insurance claims, the United Kingdom regulator, the Financial Conduct Authority (FCA), in cooperation with leading insurers, launched a test case with a view to resolving some of the fundamental coverage issues arising on a selection of common market wordings. The decision in the FCA test case of course left several issues unanswered, particularly in relation to the assessment of quantum. Three recent cases have attempted to address these issues. They were brought by Stonegate (a pub chain), Greggs (a bakery chain) and Various Eateries (a group of restaurants).
Released on May 25, 2023
How is the World Shaping the Financial Innovation Industry?
In recent years, financial technology (Fintech) has expanded worldwide, forcing traditional institutions to adapt to this innovative means of doing financial business. Around the globe, the legal response to this new trend has been diverse, although we can still trace certain similarities. In this context, the Banking Law Committee of the International Bar Association has conducted an investigation project to observe the regulatory and legal responses to Fintech and their impact. For this purpose, we have worked with different law firms from 39 countries. This article summarises the findings of this project.
Released on May 25, 2023
The Pandemic’s Impact on Legal Work: A Comparative Analysis of Legal Frameworks, Practical Impacts and Innovation
As the Covid-19 pandemic continues to have an impact on our economy and social structures, it comes as no surprise that the way people work – and the digital tools used – differ substantially from our experience of pre-pandemic work. Across the globe, organisations are extending a suite of remote work options, including full-time remote work, hybrid remote work and flexible personalised plans. The legal profession is no exception to this trend, and in facilitating the shift, a variety of digital tools and services have been implemented to optimise the experience of remote legal work. These tools and services include virtual meeting platforms, digital hearing and filing platforms for courts, e-signatures, digital document review and e-discovery. The international uptake of digital tools and services in legal work signals a shift towards a new ‘normal’ in the profession. While being a lawyer was once synonymous with paper stacks and extensive physical libraries, digital tools and services have made the same world available through one’s laptop. The sustainability of the shift and our new ‘normal’ is also due in part to legislative reforms during the height of the pandemic that enabled an increased use of digital tools and services, and which in some cases continue to be in effect today. This article will examine how several jurisdictions, namely Australia, Belgium, India, Italy, Sweden and the United Kingdom, adapted their legislative frameworks to facilitate remote work, the impact of remote work on the legal profession, the various innovations adopted in the context of the pandemic and whether such innovations and associated changes were maintained after the lifting of associated restrictions.
Released on May 25, 2023
Blockchain and Private International Law: Implications for Crypto, Payment Systems, Digital Wallets and Jurisdictional Concerns
In recent years, the financial growth of the digital economy and the influence of its associated assets and organisations has led to a concern over the legal mechanisms governing market interactions on blockchain systems. More critically, the question of ‘which law, which court’ is one that the Law Commission of England and Wales has posed in relation to considering the dilemma of which laws will govern a tech-related dispute. This conflict of laws issue is exacerbated in the world of decentralised finance, given the inherently borderless nature of blockchain transactions, which can lack the necessary legal safeguards. The article frames this issue in the context of payment systems, decentralised autonomous organisations and digital wallets. The potential displacement of central counterparties that decentralised finance proposes, alongside a wealth of efficiency and security benefits, must be assessed against the backdrop of cryptocurrency related fraud, cybersecurity concerns and the revolutionary nature of contracting between parties on decentralised platforms. The article aims to show that the aggregate gain of this financial revolution must be approached with legal caution, given that principles of private international law, company law and contract law may not adequately remedy (in one form or another) the range of legal concerns regarding the resolution of blockchain-related disputes. As the article will highlight and argue, the implementation of an international framework to homogenise jurisdictional variations requires rectifying a range of underlying legal ambiguities and speculations to unify a currently fragmented framework of regulation(s).
Released on May 25, 2023
Business Law International (BLI) – May 2023
Released on May 25, 2023
Business Law International (BLI) – January 2023
Released on Jan 18, 2023