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Committee publications

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IBA hosts largest transnational crime conference to date

The 26th Transnational Crime Conference, which took place between 8–10 May 2024 in Milan, Italy, was a resounding success. In fact, it has become the most well-attended international criminal law conference in the IBA’s history!

Released on May 21, 2024

Innovation drive: Chile’s leap forward in regard to the country’s venture capital dynamics

This article provides an examination of Chile’s recent initiatives and their potential impact on the venture capital industry.

Released on May 14, 2024

Navigating economic challenges: the rise of acquisitions as a strategic option for Pakistani startups

Amidst the economic slowdown, Pakistani startups are dealing with capital raising and are looking towards acquisitions as a way to cash in.

Released on May 14, 2024

Foreign direct investment: the legal framework in Poland

The new foreign direct investment regime, introduced in Poland in 2020, established a foreign investment screening mechanism enforced by the Polish Competition Authority (PCA). The new foreign direct investment regime, which supplements the investment control regime regulated by the Polish Act on the Control of Certain Investments dated 24 July 2015 (‘the Polish FDI Act’) and enforced by the relevant ministries, involves a limited number of strategic entities and is applicable regardless of the investor’s ‘nationality’. The new regime was introduced in response to the Covid-19 outbreak, for an initial period of two years. However, in mid-2022 the Polish parliament decided to extend this new regime for a further three years, ie, until July 2025.

Released on May 14, 2024

Deferred consideration by ‘foreign owned or controlled’ Indian companies – regulatory overhang

After the Reserve Bank of India issued notices to a few ‘foreign owned or controlled’ Indian companies for deferring part of the consideration payable in regard to their downstream investments in other Indian companies, Indian transaction advisors are faced with a dilemma. Structuring deals with deferred consideration for acquisitions through ‘foreign owned or controlled’ Indian companies has become a risky proposition. This article argues that a complete ban on this practice is not only commercially impractical, but also potentially misaligned with the original regulatory intent.

Released on May 14, 2024

The same, but different? The new Flexible Capital Company in Austria

The introduction of the Flexible Capital Company (Flexible Kapitalgesellschaft, FlexCo) as a new form of company, as of 1 January 2024, constitutes a landmark moment in the history of Austrian corporate law. The FlexCo has many similarities to the Gesellschaft mit beschränkter Haftung (GmbH), which is the standard domestic private limited liability company that was introduced over a century ago. In fact, the FlexCo Act contains a general reference to the provisions applicable to the GmbH for all matters not regulated therein. After five years of political negotiations over several legislative periods, Austria introduced the FlexCo to provide a dynamic, ‘flexible’ alternative to the GmbH, in particular, to address the needs of the entrepreneurial founder community. In addition, the introduction of the FlexCo has also prompted a number of changes to other Austrian regulations.

Released on May 14, 2024

Securing your stake: navigating minority shareholder rights in Spanish sociedades limitadas

This article explores the essential rights of minority shareholders in Spain’s venture capital and private equity sectors, focusing on the integration of statutory protections and negotiated contractual rights within investment agreements. By detailing both the statutory and contractual frameworks available, this paper explains how these rights safeguard investments and promote equitable participation, thereby enhancing the attractiveness of Spanish markets to foreign investors.

Released on May 14, 2024

The revenge of the ‘Russia roulette’ clause

Imported into Italy, France and Europe from the Anglo American legal practice to solve the crisis of governance in 50/50 joint ventures, after a period of slow use, the ‘Russian roulette’ clause has taken its revenge through several recent court decisions, which have confirmed its validity under Italian and French law.

Released on May 14, 2024

Unlocking corporate deadlock: controlling the gamble

Within the intricate tapestry of corporate governance, conflicts and disagreements are inevitable. However, when these tensions escalate to the point of impeding decision-making and paralysing the functioning of a company, they give rise to what is known as corporate deadlock. The manner in which shareholders choose to solve deadlocks is essential for preserving the functionality and long-term viability of companies.

Released on May 14, 2024

The importance of foreign-owned or controlled companies in India and the need for a more lucid regulatory framework to govern them

Foreign-owned or controlled companies (FOCCs) play a vital role in attracting foreign investment into India by enabling multinational corporations (MNCs) to consolidate their businesses in India, and buyout private equity funds are crucial in setting up investment platforms for making further investments in India through bolt-on merger and acquisition (M&A) activity. Yet, Indian exchange control regulations governing FOCCs continue to be riddled with ambiguity, thus creating inconsistencies and posing practical challenges, especially when structuring M&A transactions. This article sheds light on the strategic importance of FOCCs in attracting foreign investment into India and the major lacunae in India’s exchange control regulations governing FOCCs, which continue to pose challenges for investors.

Released on May 14, 2024

The IBA ESG conference and the evolving role of lawyers in sustainability due diligence

In February 2024, the IBA hosted an Environment, Social and Governance (ESG) conference, presented by the IBA North American Regional Forum and the IBA Energy, Environment, Natural Resources and Infrastructure Law Section, which took place in New York City. The conference featured a variety of cutting-edge panel discussions on ESG, including a panel session on ‘Due diligence and ESG – identifying new requirements and key risks for clients’.

Released on May 7, 2024

Unlocking potential: legal and regulatory dynamics in Pakistan's digital health industry

Pakistan's healthcare landscape is undergoing a transformative shift propelled by the burgeoning digital health sector. With the advent of innovative technology and an increasing desire for effective healthcare solutions, the nation is witnessing the rise of digital platforms, telemedicine services and health information systems. Despite this positive progress, the sector faces some legal and regulatory challenges.

Released on May 3, 2024

Urgently advocating for the establishment of the Special Tribunal for the Crime of Aggression against Ukraine

Russia’s war against Ukraine is an extraordinary genocidal war of aggression, an act with the sole purpose of eradicating Ukrainian culture, history, language, and the entire state

Released on May 2, 2024

Significant recent changes to the UK economic migration regime

The UK Home Office has recently implemented policies to reduce legal migration, including work-based immigration. This article outlines the context, details and potential implications of such significant changes to the UK economic migration regime.

Released on May 2, 2024

The impact of the EU’s AI Act on the medical device sector

The EU has created the world’s first government regulation of artificial intelligence (the AI Act) which has significant implications for the medical device industry. The AI Act categorises medical devices as a high-risk group and requires providers to comply with strict standards in terms of risk management, data quality, transparency, human oversight and robustness. In addition to the requirements of the Medical Device Regulation (MDR), medical device manufacturers will have to comply with additional regulations in future.

Released on Apr 30, 2024

Market dynamics and legal implications: analysing product liability in Africa’s medical device sectors

The medical device industry is experiencing rapid growth globally, particularly in Nigeria and across Africa. This expansion presents substantial market opportunities. However, the corresponding increase in product liability lawsuits poses considerable legal and financial risks to international pharmaceutical companies and medical device manufacturers operating in Nigeria and Africa as a whole. This article discusses relevant legislation in Nigeria and proposes practical strategies for medical device manufacturers to minimise the likelihood of product liability claims, suggesting defences to navigate adeptly through product liability suits.

Released on Apr 30, 2024

Trade secrets: a strategic element in the life sciences and biotechnology industries

Trade secrets can play a crucial role in protecting a company’s competitive edge. Unlike patents, which require public disclosure of the invention, trade secrets must remain confidential. This makes them particularly well-suited for protecting intangible assets in many situations. Maintaining secrecy creates an information asymmetry, giving the trade secrets’ holder a significant advantage over competitors. The following considerations aim to assist professionals in strategically choosing trade secrets as a form of intellectual property protection and in adopting appropriate measures for their upkeep.

Released on Apr 30, 2024

DTx: where do EU regulations stand in this emerging, rapidly-growing market?

Digital Therapeutics (DTx) are a new kind of medical device (some even say of medicine), designed to complement, lighten or even replace the need for medication. They are generally said to be evidence-based therapeutic interventions driven by software to prevent, manage, or treat a medical disorder or disease.Considered one of the most innovative areas within digital health, DTx target a wide range of conditions, including chronic diseases, diabetes, and mental illness. Their market is booming, with US$17.7bn in revenues forecast for 2027, and nearly a thousand clinical trials underway globally.

Released on Apr 30, 2024

Patient access to new digital therapies: challenges and opportunities of digital therapeutics in the EU

Digital therapeutics, in the form of software designed to treat disorders and diseases, are spreading at varying rates across countries worldwide. Applications include the treatment of conditions such as anxiety and depression, insomnia, obesity and diabetes. There are many benefits of these new technologies in terms of treatment efficacy, adherence and cost savings for national healthcare systems. However, their widespread use is often hampered by the lack of specific rules and procedures for market access, clinical and technological evaluation, approval and reimbursement by national health systems or private insurers. This article addresses these issues with particular reference to the European Union and Italian context.

Released on Apr 30, 2024

Recent landscape on foreign direct investment in Medtech/Pharma in Saudi Arabia

The healthcare and life sciences sector is one of the most significant sectors in Saudi Arabia and is a key focus of Saudi Vision 2030. Through the various Vision 2030 programmes, Saudi Arabia seeks to introduce new strategies to fulfil public health needs through insurance-based financing and increasing private sector participation.

Released on Apr 29, 2024

Navigating scarcity: solutions for medicine shortages in the EU, Central and Eastern Europe

Medicine shortages pose significant challenges within the European Union (EU) due to various factors, including manufacturing issues, regulatory hurdles, and pandemic-induced disruptions. The Covid-19 crisis worsened shortages, leading the EU to propose comprehensive measures. These measures authorise the European Medicines Agency (EMA) to monitor and coordinate supply-related issues. The EU has also introduced initiatives such as the action plan to mitigate medicine shortages or the Critical Medicines Alliance to address shortages collaboratively. Nationally, countries such as the Czech Republic and Slovakia are implementing regulations to manage shortages, although critics question their efficacy. This article delves into strategies and challenges in mitigating medicine shortages in the EU.

Released on Apr 29, 2024

Artificial intelligence and health: current challenges for the law

Artificial Intelligence (AI) has transformed medical care, with the potential to transform patient care and quality of life. It has had a major impact in the field of medical research and diagnosis; has eliminated time-consuming data monitoring methods and has improved the interpretation of large amounts of data derived from different sources to facilitate diagnosis and enhance the ability to execute early treatment initiatives, therefore preventing disease. The era of AI envisages new roles for healthcare providers, legal practitioners and academics as well public policy designers. This article analyses some of the ethical and legal issues in the healthcare sector.

Released on Apr 29, 2024

Product liability and medical devices in Brazil

This article provides an overview of product liability in Brazil and the application of consumer law standards to suppliers of medical devices with respect to consumers as end users.

Released on Apr 29, 2024

Balancing public health and IP rights: compulsory licensing and evergreening practices

This article explores the complex interplay between compulsory licensing and patent evergreening within the pharmaceutical sector. It examines the implications of these two tools on innovation, public health, and market competition across various jurisdictions. While a compulsory licence is supposed to safeguard public interest at large by allowing a third party to use a patented invention for the public good, evergreening allows organisations to extend their patent protection beyond the original 20-year term by making incremental changes to their original innovation. Consequently, when employed judiciously, these approaches can help maintain a healthy balance between a country’s public welfare and its financial ecosystem. This article therefore looks at some interesting perspectives on the outlook of different countries on these provisions.

Released on Apr 29, 2024

Artificial intelligence and life sciences: a perspective from Singapore

This article examines the evolving intersection of artificial intelligence (AI) and the life sciences sector in Singapore, focusing on the relevant regulatory frameworks and developments. The article further describes the public consultation approach that Singapore has taken in relation to addressing ethical, legal and social concerns for human biomedical research.

Released on Apr 29, 2024

The protection of health data in Brazil

The Brazilian Data Protection Law (Law No 13,709/2018 or 'LGPD') is the most comprehensive data protection law enacted in Brazil and it applies to: (1) data processing activities in Brazil; (2) processing of data collected in Brazil or concerning individuals located in Brazil; and (3) data processing activities with the purpose to offer goods/services to individuals in Brazil.

Released on Apr 29, 2024

Product liability and implanted medical devices in Brazil

The import, manufacturing and sale of medical devices in Brazil require prior registration with the Brazilian Health and Surveillance Agency (Agência Nacional de Vigilância Sanitária or 'ANVISA') with evidence of the product's safety, effectiveness and quality.

Released on Apr 29, 2024

The synergy between artificial intelligence and life sciences: a revolutionary interplay

Throughout history, technological developments have played a fundamental role in revolutionising the provision of healthcare. Corroborating this premise, artificial intelligence (AI) is currently leading the Fourth Industrial Revolution, opening an unprecedented era of advances in healthcare technology through the introduction of technological tools into the life sciences. Seeking to enlighten the synergy between this disruptive technology and the life sciences, this article explores the major developments arising from the integration of AI into the various branches of the life sciences, as well as the main challenges and ethical considerations that accompany these developments.

Released on Apr 29, 2024

Exploring the promise and challenges of AI in healthcare: a discussion with ChatGPT on disease prediction, diagnosis and ethical considerations

In this discussion, we explore the intersection of artificial intelligence (AI) and healthcare, focusing on the potential of AI models to predict diseases with appropriate inputs and the ethical, practical and regulatory considerations involved. We examine the idea of hyperspecialised AI models aiding in diagnosis and the challenges of ensuring accuracy, addressing bias, and maintaining privacy and data security. The interview also touched on treating AI models as software as a medical device (SaMD) and the implications of using AI, such as ChatGPT, for diagnosing diseases based on user-provided symptoms.

Released on Apr 29, 2024

The intersection of Big Data and healthcare: advancements and challenges in Hungary

One of the biggest challenges facing social healthcare systems is the implementation of prevention programmes versus treatment. Health promotion and disease prevention is not only the individual’s responsibility but the result of coordinated organisational actions. In future health development, digital solutions, harmonisation of databases and value-based healthcare could be the key aspects of addressing the challenges.

Released on Apr 29, 2024