Acquisition finance in 17 jurisdictions worldwide
Air transport in 28 jurisdictions worldwide
Anti-money laundering in 15 jurisdictions worldwide
Asset recovery in 20 jurisdictions worldwide
Aviation finance & leasing in 35 jurisdictions worldwide
Banking regulation in 20 jurisdictions worldwide
Commercial contracts in 10 jurisdictions worldwide
Construction in 24 jurisdictions worldwide
Debt capital markets in 12 jurisdictions worldwide
Distribution and agency in 13 jurisdictions worldwide
Electricity regulation in 27 jurisdictions worldwide
Environment in 12 jurisdictions worldwide
Equity derivatives in 11 jurisdictions worldwide
Financial services litigation in 11 jurisdictions worldwide
Fintech in 22 jurisdictions worldwide
Gas regulation in 24 jurisdictions worldwide
High-yield debt in 11 jurisdictions worldwide
Islamic finance and markets in 9 jurisdictions worldwide
Loans and secured financing in 15 jurisdictions worldwide
Mining in 23 jurisdictions worldwide
Oil regulation in 24 jurisdictions worldwide
Ports and Terminals in 21 jurisdictions worldwide
Private equity (fund formation) in 22 jurisdictions worldwide
Project finance in 23 jurisdictions worldwide
Public-private partnerships in 15 jurisdictions worldwide
Public procurement in 34 jurisdictions worldwide
Real estate in 19 jurisdictions worldwide
Restructuring & insolvency in 43 jurisdictions worldwide
Securities finance in 15 jurisdictions worldwide
Securities litigation in 10 jurisdictions worldwide
Ship finance in 19 jurisdictions worldwide
Shipbuilding in 13 jurisdictions worldwide
Shipping in 37 jurisdictions worldwide
Structured finance and securitisation in 13 jurisdictions worldwide
Telecoms and media in 27 jurisdictions worldwide
Trade and customs in 17 jurisdictions worldwide
Click here to download the Acquisition Finance 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 17 jurisdictions are covered in this report:
Albania; England & Wales; France; Germany; Hong Kong; India; Ireland; Italy; Japan; Luxembourg; Nigeria; Portugal; Spain; Sweden; Switzerland; Turkey and the United States.
QuestionsThe set of questions relating to the topic of acquisition finance and answered by the guide for each jurisdiction covered include:
General structuring of financing- •What territory’s law typically governs the transaction agreements? Will courts in your jurisdiction recognise a choice of foreign law or a judgment from a foreign jurisdiction?
- •Does the legal and regulatory regime in your jurisdiction restrict acquisitions by foreign entities? Are there any restrictions on cross-border lending?
- •What are the typical debt components of acquisition financing in your jurisdiction? Does acquisition financing typically include subordinated debt or just senior debt?
- •Are there rules requiring certainty of financing for acquisitions of public companies? Have “certain funds” provisions become market practice in other transactions where not required?
- •Are there any restrictions on the borrower’s use of proceeds from loans or debt securities?
- •What are the licensing requirements for financial institutions to provide financing to a company organised in your jurisdiction?
- •Are principal or interest payments or other fees related to indebtedness subject to withholding tax? Is the borrower responsible for withholding tax? Must the borrower indemnify the lenders for such taxes?
- •Are there usury laws or other rules limiting the amount of interest that can be charged?
- •What kind of indemnities would customarily be provided by the borrower to lenders in connection with a financing?
- •Can interests in debt be freely assigned among lenders?
- •Do rules in your jurisdiction govern whether an entity can act as an administrative agent, trustee or collateral agent?
- •May a borrower or financial sponsor conduct a debt buy-back?
- •Is it permissible in a buy-back to solicit a majority of lenders to agree to amend covenants in the outstanding debt agreements?
- •Are there restrictions on the provision of related company guarantees? Are there any limitations on the ability of foreign-registered related companies to provide guarantees?
- •Are there specific restrictions on the target’s provision of guarantees or collateral or financial assistance in an acquisition of its shares? What steps may be taken to permit such actions?
- •What kinds of security are available? Are floating and fixed charges permitted? Can a blanket lien be granted on all assets of a company? What are the typical exceptions to an all-assets grant?
- •Are there specific bodies of law governing the perfection of certain types of collateral? What kinds of notification or other steps must be taken to perfect a security interest against collateral?
- •Once a security interest is perfected, are there renewal procedures to keep the lien valid and recorded?
- •Are there “works council” or other similar consents required to approve the provision of guarantees or security by a company?
- •Can security be granted to an agent for the benefit of all lenders or must collateral be granted to lenders individually and then amendments executed upon any assignment?
- •What protection is typically afforded to creditors before collateral can be released? Are there ways to structure around such protection?
- •Describe the fraudulent transfer laws in your jurisdiction.
- •What documentation is typically used in your jurisdiction for acquisition financing? Are short form or long form debt commitment letters used and when is full documentation required?
- •What levels of commitment are given by parties in debt commitment letters and acquisition agreements in your jurisdiction? Fully underwritten, best efforts or other types of commitments?
- •What are the typical conditions precedent to funding contained in the commitment letter in your jurisdiction?
- •Are flex provisions used in commitment letters in your jurisdiction? Which provisions are usually subject to such flex?
- •Are securities demands a key feature in acquisition financing in your jurisdiction? Give details of the notable features of securities demands in your jurisdiction.
- •What are the key elements in the acquisition agreement that are relevant to the lenders in your jurisdiction? What liability protections are typically afforded to lenders in the acquisition agreement?
- •Are commitment letters and acquisition agreements publicly filed in your jurisdiction? At what point in the process are the commitment papers made public?
- •What restrictions are there on the ability of lenders to enforce against collateral?
- •Does your jurisdiction allow for debtor-in-possession (DIP) financing?
- •During an insolvency proceeding is there a general stay enforceable against creditors? Is there a concept of adequate protection for existing lien holders who become subject to superior claims?
- •In the course of an insolvency, describe preference periods or other reasons for which a court or other authority could claw back previous payments to lenders? What are the rules for such clawbacks and what period is covered?
- •In an insolvency, are creditors ranked? What votes are required to approve a plan of reorganisation?
- •Will courts recognise contractual agreements between creditors providing for lien subordination or otherwise addressing lien priorities?
- •How is the claim of an original issue discount (OID) or discount debt instrument treated in an insolvency proceeding in your jurisdiction?
- •Discuss potential liabilities for a secured creditor that enforces against collateral.
Click here to download the Air transport 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 28 jurisdictions are covered in this report:
Afghanistan; Argentina; Belgium; Brazil; Canada; Chile; Costa Rica; European Union; France; Germany; Greece; India; Italy; Japan; Kenya; Malta; Netherlands; Nigeria; Panama; Poland; Portugal; Russia; Singapore; Sweden; Switzerland; United Arab Emirates; United Kingdom; United States
QuestionsThe set of questions relating to the topic of air transport and answered by the guide for each jurisdiction covered include:
General- •Which bodies regulate aviation in your country, under what basic laws?
- •How is air transport regulated in terms of safety?
- •What safety regulation is provided for air operations that do not constitute public or commercial transport, and how is the distinction made?
- •Is access to the market for the provision of air transport services regulated, and if so how?
- •What requirements apply in the areas of financial fitness and nationality of ownership regarding control of air carriers?
- •What procedures are there to obtain licences or other rights to operate particular routes?
- •What procedures are there for hearing or deciding contested applications for licences or other rights to operate particular routes?
- •Is there a declared policy on airline access or competition, and if so what is it?
- •What requirements must a foreign air carrier satisfy in order to operate to or from your country?
- •Are there specific rules in place to ensure aviation services are offered to remote destinations when vital for the local economy?
- •Are charter services specially regulated?
- •Are airfares regulated, and if so, how?
- •Are there any rules regulating the operation of unmanned aircraft systems (drones)?
- •Who is entitled to be mentioned in the aircraft register? Do requirements or limitations apply to the ownership of an aircraft listed on your country’s register?
- •Is there a register of aircraft mortgages or charges, and if so how does it function?
- •What rights are there to detain aircraft, in respect of unpaid airport or air navigation charges, or other unpaid debts?
- •Do specific rules regulate the maintenance of aircraft?
- •Who owns the airports?
- •What system is there for the licensing of airports?
- •Is there a system of economic regulation of airports, and, if so, how does it function?
- •Are there laws or rules restricting or qualifying access to airports?
- •How are slots allocated at congested airports?
- •Are there any laws or rules specifically relating to ground handling?
- •Who provides air traffic control services? And how are they regulated?
- •Are there any special rules in respect of death of, or injury to, passengers or loss or damage to baggage or cargo in respect of domestic carriage?
- •Are there any special rules about the liability of aircraft operators for surface damage?
- •What system and procedures are in place for the investigation of air accidents?
- •Is there a mandatory accident and incident reporting system, and if so, how does it operate?
- •Do sector-specific competition rules apply to aviation? If not, do the general competition law rules apply?
- •Is there a sector-specific regulator or are competition rules applied by the general competition authority?
- •How is the relevant market for the purposes of a competition assessment in the aviation sector defined by the competition authorities?
- •What are the main standards for assessing the competitive effect of a transaction?
- •What types of remedies have been imposed to remedy concerns identified by the competition authorities?
- •Are there sector-specific rules regulating direct or indirect financial support to companies by the government or government-controlled agencies or companies (state aid) in the aviation sector? If not, do general state aid rules apply?
- •What are the main principles of the state aid rules applicable to the aviation sector?
- •Are there exemptions from the state aid rules or situations in which they do not apply?
- •Must clearance from the competition authorities be obtained before state aid may be granted?
- •If so, what are the main procedural steps to obtain clearance?
- •If no clearance is obtained, what procedures apply to recover unlawfully granted state aid?
- •Is there any aviation-specific passenger protection legislation?
- •Are there mandatory insurance requirements for the operators of aircraft?
- •What legal requirements are there with regard to aviation security?
- •What serious crimes exist with regard to aviation?
Click here to download the Anti-money laundering 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 15 jurisdictions are covered in this report:
Australia; Brazil; France; Greece; Hong Kong; India; Italy; Japan; Korea; Nigeria; Russia; Singapore; Switzerland; United Kingdom; United States
QuestionsThe set of questions relating to the topic of anti-money laundering and answered by the guide for each jurisdiction covered include:
Domestic legislation- •Identify your jurisdiction’s money laundering and anti-money laundering (AML) laws and regulations. Describe the main elements of these laws.
- •Describe any specific powers to identify proceeds of crime or to require an explanation as to the source of funds.
- •Which government entities enforce your jurisdiction’s money laundering laws?
- •Can both natural and legal persons be prosecuted for money laundering?
- •What constitutes money laundering?
- •Is there any limitation on the types of assets or transactions that can form the basis of a money laundering offence?
- •Generally, what constitute predicate offences?
- •Are there any codified or common law defences to charges of money laundering?
- •What is the range of outcomes in criminal money laundering cases?
- •Describe any related asset freezing, forfeiture, disgorgement and victim compensation laws.
- •What are the limitation periods governing money laundering prosecutions?
- •Do your jurisdiction’s money laundering laws have extraterritorial reach?
- •Which government entities enforce your jurisdiction’s AML regime and regulate covered institutions and persons? Do the AML rules provide for ongoing and periodic assessments of covered institutions and persons?
- •Which institutions and persons must carry out AML measures?
- •Do the AML laws in your jurisdiction require covered institutions and persons to implement AML compliance programmes? What are the required elements of such programmes?
- •What constitutes breach of AML duties imposed by the law?
- •Describe due diligence requirements in your jurisdiction’s AML regime.
- •Do your jurisdiction’s AML rules require that covered institutions and persons conduct risk-based analyses? Which high-risk categories are specified?
- •Describe the record keeping and reporting requirements for covered institutions and persons.
- •Describe any privacy laws that affect record keeping requirements, due diligence efforts and information sharing.
- •What is the range of outcomes in AML controversies? What are the possible sanctions for breach of AML laws?
- •What are the limitation periods governing AML matters?
- •Do your jurisdiction’s AML laws have extraterritorial reach?
- •Enumerate and describe the required elements of a civil claim or private right of action against money launderers and covered institutions and persons in breach of AML laws.
- •List your jurisdiction’s memberships of supranational organisations that address money laundering.
- •Give details of any assessments of your jurisdiction’s money laundering regime conducted by virtue of your membership of supranational organisations.
- •Give details of your jurisdiction’s Financial Intelligence Unit (FIU).
- •In which circumstances will your jurisdiction provide mutual legal assistance with respect to money laundering investigations? What are your jurisdiction’s policies and procedures with respect to requests from foreign countries for identifying, freezing and seizing assets?
- •Describe any national trends in criminal money laundering schemes and enforcement efforts. Describe any national trends in AML enforcement and regulation. Describe current best practices in the compliance arena for companies and financial institutions.
Click here to download the Asset Recovery 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 20 jurisdictions are covered in this report:
Australia; Bermuda; Canada; Cayman Islands; Cyprus; England & Wales; Greece; Hong Kong; Ireland; Italy; Jersey; Korea; Liechtenstein; Monaco; Nigeria; Serbia; Switzerland; Ukraine; United Arab Emirates; and United States.
QuestionsThe set of questions relating to the topic of asset recovery and answered by the guide for each jurisdiction covered include:
Civil asset recovery- •Parallel proceedings: Is there any restriction on civil proceedings progressing in parallel with, or in advance of, criminal proceedings concerning the same subject matter?
- •Forum: In which court should proceedings be brought?
- •Limitation: What are the time limits for starting civil court proceedings?
- •Jurisdiction: In what circumstances does the civil court have jurisdiction? How can a defendant challenge jurisdiction?
- •Time frame: What is the usual time frame for a claim to reach trial?
- •Admissibility of evidence: What rules apply to the admissibility of evidence in civil proceedings?
- •Witnesses: What powers are available to compel witnesses to give evidence?
- •Publicly available information: What sources of information about assets are publicly available?
- •Cooperation with law enforcement agencies: Can information and evidence be obtained from law enforcement and regulatory agencies for use in civil proceedings?
- •Third-party disclosure: How can information be obtained from third parties not suspected of wrongdoing?
- •Interim relief: What interim relief is available pre-judgment to prevent the dissipation of assets by, and to obtain information from, those suspected of involvement in the fraud?
- •Right to silence: Do defendants in civil proceedings have a right to silence?
- •Non-compliance with court orders: How do courts punish failure to comply with court orders?
- •Obtaining evidence from other jurisdictions: How can information be obtained through courts in other jurisdictions to assist in the civil proceedings?
- •Assisting courts in other jurisdictions: What assistance will the civil court give in connection with civil asset recovery proceedings in other jurisdictions?
- •Causes of action: What are the main causes of action in civil asset recovery cases and do they include proprietary claims?
- •Remedies: What remedies are available in a civil recovery action?
- •Judgment without full trial: Can a victim obtain a judgment without the need for a full trial?
- •Post-judgment relief: What post-judgment relief is available to successful claimants?
- •Enforcement: What methods of enforcement are available?
- •Funding and costs: What funding arrangements are available to parties contemplating or involved in litigation and do the courts have any powers to manage the overall cost of that litigation?
- •Interim measures: Describe the legal framework in relation to interim measures in your jurisdiction.
- •Proceeds of serious crime: Is an investigation to identify, trace and freeze proceeds automatically initiated when certain serious crimes are detected? If not, what triggers an investigation?
- •Confiscation — legal framework: Describe the legal framework in relation to confiscation of the proceeds of crime, including how the benefit is calculated.
- •Confiscation procedure: Describe how confiscation works in practice.
- •Agencies: What agencies are responsible for tracing and confiscating the proceeds of crime in your jurisdiction?
- •Secondary proceeds: Is confiscation of secondary proceeds possible?
- •Third-party ownership: Is it possible to confiscate property acquired by a third party or close relatives?
- •Expenses: Can the costs of tracing and confiscating assets be recovered by a relevant state agency?
- •Value-based confiscation: Is value-based confiscation allowed? If yes, how is the value assessment made?
- •Burden of proof: On whom is the burden of proof in a procedure to confiscate the proceeds of crime? Can the burden be reversed?
- •Using confiscated property to settle claims: May confiscated property be used in satisfaction of civil claims for damages or compensation from a claim arising from the conviction?
- •Confiscation of profits: Is it possible to recover the financial advantage or profit obtained through the commission of criminal offences?
- •Non-conviction based forfeiture: Can the proceeds of crime be confiscated without a conviction? Describe how the system works and any legal challenges to in rem confiscation.
- •Management of assets: After the seizure of the assets, how are they managed, and by whom? How does the managing authority deal with the hidden cost of management of the assets? Can the assets be utilised by the managing authority or a government agency as their own?
- •Making requests for foreign legal assistance: Describe your jurisdiction’s legal framework and procedure to request international legal assistance concerning provisional measures in relation to the recovery of assets.
- •Complying with requests for foreign legal assistance: Describe your jurisdiction’s legal framework and procedure to meet foreign requests for legal assistance concerning provisional measures in relation to the recovery of assets.
- •Treaties: To which international conventions with provisions on asset recovery is your state a signatory?
- •Private prosecutions: Can criminal asset recovery powers be used by private prosecutors?
Click here to download the Aviation finance & leasing 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 35 jurisdictions are covered in this report:
Argentina; Austria; Belgium; Bermuda; Brazil; British Virgin Islands; Cayman Islands; Dominican Republic; England & Wales; France; Germany; Greece; Hong Kong; India; Israel; Italy; Japan; Kenya; Latvia; Lithuania; Malta; Mexico; Netherlands; Nigeria; Panama; Portugal; Qatar; Russia; Slovenia; South Africa; Spain; Sweden; Ukraine; United Arab Emirates; United States
QuestionsThe set of questions relating to the topic of aviation finance and leasing and answered by the guide for each jurisdiction covered include:
Overview- •To which major air law treaties is your state a party?
- •What is the principal domestic legislation applicable to aviation finance and leasing?
- •Are there any restrictions on choice-of-law clauses in contracts to the transfer of interests in or creation of security over aircraft? If parties are not free to specify the applicable law, is the law of the place where the aircraft is located or where it is registered the relevant applicable law?
- •How is title in an aircraft transferred?
- •What are the formalities for creating an enforceable transfer document for an aircraft?
- •Identify and describe the aircraft registry.
- •Can an ownership or lease interest in, or lease agreement over, aircraft be registered with the aircraft registry? Are there limitations on who can be recorded as owner? Can an ownership interest be registered with any other registry? Can owners’, operators’ and lessees’ interests in aircraft engines be registered?
- •Summarise the process to register an ownership interest.
- •What is the effect of registration of an ownership interest as to proof of title and third parties?
- •Summarise the process to register a lease interest.
- •What is the regime for certification of registered aviation interests in your jurisdiction?
- •Is an owner or mortgagee required to consent to any deregistration or export of the aircraft? Must the aviation authority give notice? Can the operator block any proposed deregistration or export by an owner or mortgagee?
- •What are the principal characteristics of deregistration and export powers of attorney?
- •If the Cape Town Convention is in effect in the jurisdiction, describe any notable features of the irrevocable deregistration and export request authorisation (IDERA) process.
- •What is the typical form of a security document over the aircraft and what must it contain?
- •What are the documentary formalities for creation of an enforceable security over an aircraft? What are the documentary costs?
- •Must the security document be filed with the aviation authority or any other registry as a condition to its effective creation or perfection against the debtor and third parties? Summarise the process to register a mortgagee interest.
- •How is registration of a security interest certified?
- •What is the effect of registration as to third parties?
- •How is security over aircraft and leases typically structured? What are the consequences of changes to the security or its beneficiaries?
- •What form does security over spare engines typically take and how does it operate?
- •Outline the basic repossession procedures following lease termination. How may the lessee lawfully impede the owner’s rights to exercise default remedies?
- •Outline the basic measures to enforce a security interest. How may the owner lawfully impede the mortgagee’s right to enforce?
- •Which liens and rights will have priority over aircraft ownership or an aircraft security interest? If an aircraft can be taken, seized or detained, is any form of compensation available to an owner or mortgagee?
- •How are judgments of foreign courts enforced? In your jurisdiction party ot the 1958 New York Convention?
- •What taxes may apply to aviation-related lease payments, loan repayments and transfers of aircraft? How may tax liability be lawfully minimised?
- •Are there any restrictions on international payments and exchange controls in effect in your jurisdiction?
- •Are there any limitations on the amount of default interest that can be charged on lease or loan payments?
- •Are there any costs to bring the aircraft into the jurisdiction or take it out of the jurisdiction? Does the liability attach to the owner or mortgagee?
- •Summarise any captive insurance regime in your jurisdiction as applicable to aviation.
- •Are cut-through clauses under the insurance and reinsurance documentation legally effective?
- •Are assignments of reinsurance (by domestic or captive insurers) legally effective? Are assignments of reinsurance typically provided on aviation leasing and finance transactions?
- •Can an owner, lessor or financier be liable for the operation of the aircraft or the activities of the operator?
- •Does the jurisdiction adopt a regime of strict liability for owners, lessors, financiers or others with no operational interest in the aircraft?
- •Are there minimum requirements for the amount of third-party liability cover that must be in place?
Click here to download the Banking Regulation 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 20 jurisdictions are covered in this report:
Andorra; Austria; Canada; Ecuador; Germany; Ghana; Indonesia; Ireland; Italy; Japan; Korea; Lebanon; Monaco; Norway; South Africa; Sweden; Switzerland; United Arab Emirates; United Kingdom and United States.
QuestionsThe set of questions relating to the topic of banking regulation and answered by the guide for each jurisdiction covered include:
Regulatory framework- •What are the principal governmental and regulatory policies that govern the banking sector?
- •Summarise the primary statutes and regulations that govern the banking industry.
- •Which regulatory authorities are primarily responsible for overseeing banks?
- •Describe the extent to which deposits are insured by the government. Describe the extent to which the government has taken an ownership interest in the banking sector and intends to maintain, increase or decrease that interest.
- •Which legal and regulatory limitations apply to transactions between a bank and its affiliates? What constitutes an “affiliate” for this purpose? Briefly describe the range of permissible and prohibited activities for financial institutions and whether there have been any changes to how those activities are classified.
- •What are the principal regulatory challenges facing the banking industry?
- •Are banks subject to consumer protection rules?
- •In what ways do you anticipate the legal and regulatory policy changing over the next few years?
- •How are banks supervised by their regulatory authorities? How often do these examinations occur and how extensive are they?
- •How do the regulatory authorities enforce banking laws and regulations?
- •What are the most common enforcement issues and how have they been addressed by the regulators and the banks?
- •How has bank supervision changed in response to the 2008 financial crisis?
- •In what circumstances may banks be taken over by the government or regulatory authorities? How frequent is this in practice? How are the interests of the various stakeholders treated?
- •What is the role of the bank’s management and directors in the case of a bank failure? Must banks have a resolution plan or similar document?
- •Are managers or directors personally liable in the case of a bank failure?
- •Describe any resolution planning or similar exercises that banks are required to conduct.
- •Describe the legal and regulatory capital adequacy requirements for banks. Must banks make contingent capital arrangements?
- •How are the capital adequacy guidelines enforced?
- •What happens in the event that a bank becomes undercapitalised?
- •What are the legal and regulatory processes in the event that a bank becomes insolvent?
- •Have capital adequacy guidelines changed, or are they expected to change in the near future?
- •Describe the legal and regulatory limitations regarding the types of entities and individuals that may own a controlling interest in a bank. What constitutes “control” for this purpose?
- •Are there any restrictions on foreign ownership of banks?
- •What are the legal and regulatory implications for entities that control banks?
- •• What are the legal and regulatory duties and responsibilities of an entity or individual that controls a bank?
- •What are the implications for a controlling entity or individual in the event that a bank becomes insolvent?
- •Describe the regulatory approvals needed to acquire control of a bank. How is “control” defined for this purpose?
- •Are the regulatory authorities receptive to foreign acquirers? How is the regulatory process different for a foreign acquirer?
- •What factors are considered by the relevant regulatory authorities in an acquisition of control of a bank?
- •Describe the required filings for an acquisition of control of a bank.
- •What is the typical time frame for regulatory approval for both a domestic and a foreign acquirer?
Click here to download the Commercial Contracts 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 10 jurisdictions are covered in this report:
Australia; Canada; China; Germany; Japan; Mexico; Spain; Switzerland; United Kingdom and United States.
QuestionsThe set of questions relating to the topic of commercial contracts and answered by the guide for each jurisdiction covered include:
Contract formation- •Is there an obligation to use good faith when negotiating a contract?
- •How are “battle of the forms” disputes resolved in your jurisdiction?
- •Is there a legal requirement to draft the contract in the local language?
- •Is it possible to agree a B2B contract online?
- •Are there any statutory or other controls on parties’ freedom to agree terms in contracts between commercial parties in your jurisdiction?
- •Are standard form contracts treated differently?
- •What terms are implied by law into the contract? Is it possible to exclude these in a commercial relationship?
- •Is your jurisdiction a signatory to the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention)?
- •Is there an obligation to use good faith when entering and performing a contract?
- •What liabilities cannot be excluded or limited by a supplier in a contract?
- •Are there any statutory controls on using financial caps to limit liability for breach of contract?
- •Are there any statutory controls on indemnities used to cover liability risks in contracts?
- •Are liquidated damages clauses enforceable and commonly used in your jurisdiction?
- •Are there statutory time limits for paying invoices? Is it possible to agree a different payment period?
- •Is statutory interest charged on late payments? Is it possible to agree a different rate of interest?
- •What are the civil penalties for failing to comply with statutory interest rate or late payment of invoices?
- •Do special rules apply to termination of a supply contract that will be implied by law into a contract? Can these terms be excluded or limited by including appropriate language in the contract?
- •If a contract does not include a notice period to terminate a contract, how is it calculated?
- •Will a commercial contract terminate automatically on insolvency of the other party?
- •Are there restrictions on terminating a contract if the other party is in financial distress?
- •Is force majeure recognised in your jurisdiction? What are the consequences of a force majeure event?
- •May a supplier subcontract its obligations under the contract without seeking consent from the other party?
- •Are there any statutory rules that apply to subcontracting in your jurisdiction?
- •May a party assign its rights and obligations under the contract without seeking the other party’s consent?
- •What statutory controls apply to the assignment of rights or obligations under a supply contract?
- •How may a third party enforce a term of the contract?
- •What are the limitation periods for breach of contract claims? Is it possible to agree a shorter limitation period?
- •Do your courts recognise and respect choice-of-law clauses stipulating a foreign law?
- •Do your courts recognise and respect choice-of-jurisdiction clauses stipulating a foreign jurisdiction?
- •How efficient and cost-effective is the local legal system in dealing with commercial disputes?
- •Is your jurisdiction a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards? Which arbitration rules are commonly used in your jurisdiction?
- •What remedies may a court or other adjudicator grant? Are punitive damages awarded for a breach of contract claim in your jurisdiction?
Click here to download the Construction 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 24 jurisdictions are covered in this report:
Austria; Brazil; Chile; China; Colombia; Costa Rica; Denmark; France; Germany; Ghana; India; Ireland; Italy; Japan; Mexico; New Zealand; Norway; Singapore; Sweden; Switzerland; Taiwan; Turkey; United Kingdom; United States.
QuestionsThe set of questions relating to the topic of construction and answered by the guide for each jurisdiction covered include:
- •If a foreign designer or contractor wanted to set up an operation to pursue the local market, what are the key concerns they should consider before taking such a step?
- •Must foreign designers and contractors be licensed locally to work and, if so, what are the consequences of working without a licence?
- •Do local laws provide any advantage to domestic contractors in competition with foreign contractors?
- •What legal protections exist to ensure fair and open competition to secure contracts with public entities, and to prevent bid rigging or other anti-competitive behaviour?
- •If a contractor has illegally obtained the award of a contract, for example by bribery, will the contract be enforceable? Are bribe-givers and bribe-takers prosecuted and, if so, what are the penalties they face? Are facilitation payments allowable under local law?
- •Under local law must employees of the project team members report suspicion or knowledge of bribery of government employees and, if so, what are the penalties for failure to report?
- •Is the making of political contributions part of doing business? If so, are there laws that restrict the ability of contractors or design professionals to work for public agencies because of their financial support for political candidates or parties?
- •Is a construction manager or other construction professional acting as a public entity's representative or agent on a project (and its employees) subject to the same anti-corruption and compliance (such as a prohibition against accepting “things of value”, conflicts of interest, etc) as government employees?
- •Are there any other important legal issues that may present obstacles to a foreign contractor attempting to do business in your jurisdiction?
- •What standard contract forms are used for construction and design? Must the language of the contract be the local language? Are there restrictions on choice of law and the venue for dispute resolution?
- •How are contractors, subcontractors, vendors and workers typically paid and is there a standard frequency for payments?
- •What is the typical contractual matrix for a major project in your jurisdiction in terms of the contractual relationships among the various construction project participants?
- •Is there a formal statutory and regulatory framework for PPP and PFI contracts?
- •Are all members of consortia jointly liable for the entire project or may they allocate liability and responsibility among them?
- •Do local laws permit a contracting party to be indemnified against all acts, errors and omissions arising from the work of the other party, even when the first party is negligent?
- •Where a contractor constructs a building that will be sold or leased to a third party, does the contractor bear any potential responsibility to the third party? May the third party pursue a claim against the contractor despite the lack of contractual privity?
- •To what extent do available insurance products afford a contractor coverage for: damage to the property of third parties; injury to workers or third parties; delay damages; and damages due to environmental hazards. Does the local law limit contractors’ liability for damages?
- •Are there any laws requiring a minimum amount of local labour to be employed on a particular construction project?
- •If a contractor directly hires local labour (at any level) for a project, are there any legal obligations towards the employees that cannot be terminated upon completion of the employment?
- •What laws apply to the treatment of foreign construction workers and what rights do they have? What are the local law consequences for failure to follow those laws?
- •If a foreign contractor that has been legally operating decides to close its operations, what are the legal obstacles to closing up and leaving?
- •How may a contractor secure the right to payment of its costs and fees from an owner? May the contractor place liens on the property?
- •Does local law prohibit construction contracts from containing terms that make a subcontractor’s right to payment contingent on the general contractor’s receipt of payment from the owner, thereby causing the subcontractor to bear the risk of the owner’s non-payment or late payment?
- •“Pay if paid” and “pay when paid”
- •Can a government agency assert sovereign immunity as a defence to a contractor’s claim for payment?
- •Where major projects have been interrupted or cancelled, do the local laws provide any protection for unpaid contractors who have performed work?
- •Under local law are contractors excused from performing contractual obligations owing to events beyond their control?
- •Are there any specialised tribunals that are dedicated to resolving construction disputes?
- •Are dispute review boards (DRBs) used? Are their decisions treated as mandatory, advisory, final or interim?
- •Has the practice of voluntary participation in professionally organised mediation gained acceptance and, if so, how prevalent is the practice and where are the mediators coming from? If not, why not?
- •Are statements made in mediation confidential?
- •What is the prevailing attitude towards arbitration of construction disputes? Is it preferred over litigation in the local courts?
- •If a foreign contractor wanted to pursue work and insisted by contract upon international arbitration as the dispute resolution mechanism, which of the customary international arbitration providers is preferred and why?
- •May government agencies participate in private arbitration and be bound by the arbitrators’ award?
- •Is there any basis upon which an arbitral award issued by a foreign or international tribunal may be rejected by your local courts?
- •Are there any statutory limitation periods within which lawsuits must be commenced for construction work or design services and are there any statutory preconditions for commencing or maintaining such proceedings?
- •Is your jurisdiction party to the Stockholm Declaration of 1972? What are the local laws that provide for preservation of the environment and wildlife while advancing infrastructure and building projects?
- •What duties and liability do local laws impose on developers and contractors for the creation of environmental hazards or violation of local environmental laws and regulations?
- •Is your jurisdiction a signatory to any investment agreements for the protection of investments of a foreign entity in construction and infrastructure projects? If so, how does your model agreement define “investment”?
- •Has your jurisdiction entered into double taxation treaties pursuant to which a contractor is prevented from being taxed in various jurisdictions?
- •Are there currency controls that make it difficult or impossible to change operating funds or profits from one currency to another?
- •Are there any controls or laws that restrict removal of revenues, profits and investments from your jurisdiction?
Click here to download the Debt capital markets 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 12 jurisdictions are covered in this report:
China; Germany; Greece; Netherlands; Portugal; Spain; Sweden; Switzerland; Thailand; Turkey; United Kingdom; United States
QuestionsThe set of questions relating to the topic of Debt capital markets and answered by the guide for each jurisdiction covered include:
- •What types of debt securities offerings are typical, and how active is the market?
- •Describe the general regime for debt securities offerings.
- •Give details of any filing requirements for public offerings of debt securities. Outline any requirements for debt securities that are not applicable to offerings of other securities.
- •In a public offering of debt securities, must the issuer produce a prospectus or similar documentation? What information must it contain?
- •Describe the drafting process for the offering document.
- •Which key documents govern the terms and conditions of the debt securities? Who are the parties to such documents? How can such documents be accessed?
- •Does offering documentation require approval before publication? In what forms should it be available?
- •Are public offerings of debt securities subject to review and authorisation? What is the time frame for approval? What are the restrictions imposed, if any, on the issuer and the underwriters during the review process?
- •On what grounds may the regulators refuse to approve a public offering of securities?
- •How do the rules differ for public and private offerings of debt securities? What types of exemptions from registration are available?
- •Describe the public offering process for debt securities. How does the private offering process differ?
- •What are the usual closing documents that the underwriters or the initial purchasers require in public and private offerings of debt securities from the issuer or third parties?
- •What are the typical fees for listing debt securities on the principal exchanges?
- •How active is the market for special debt instruments, such as equity-linked notes, exchangeable or convertible debt, or other derivative products?
- •What rules apply to the offering of such special debt securities? Are there any accounting implications that the issuer should be aware of?
- •What determines whether securities are classed as debt or equity? What are the implications for instruments categorised as equity and not debt?
- •Are there any transfer restrictions or other limitations imposed on privately offered debt securities? What are the typical contractual arrangements or regulatory safe harbours that allow the investors to transfer privately offered debt securities?
- •Are there special rules applicable to offering of debt securities by foreign issuers in your jurisdiction? Are there special rules for domestic issuers offering debt securities only outside your jurisdiction?
- •Are there any arrangements with other jurisdictions to help foreign issuers access debt capital markets in your jurisdiction?
- •What is the typical underwriting arrangement for public offerings of debt securities? How do the arrangements for private offerings of debt securities differ?
- •How are underwriters regulated? Is approval required with respect to underwriting arrangements?
- •What are the key transaction execution issues in a public debt offering? How is the transaction settled?
- •How are public debt securities typically held and traded after an offering?
- •Describe how issuers manage their outstanding debt securities.
- •Are there any reporting obligations that are imposed after offering of debt securities? What information would be included in such reporting?
- •Describe the liability regime related to debt securities offerings. What transaction participants, in addition to the issuer, are subject to liability? Is the liability analysis different for debt securities compared with securities of other types?
- •What types of remedies are available to the investors in debt securities?
- •What sanctioning powers do the regulators have and on what grounds? What are the typical results of regulatory inquiry or investigation?
- •What are the main tax issues for issuers and bondholders?
Click here to download the Distribution and agency 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 13 jurisdictions are covered in this report:
Belgium; Canada; China; Finland; Germany; Greece; India; Japan; Puerto Rico; Turkey; United Arab Emirates; United Kingdom; United States
QuestionsThe set of questions relating to the topic of Distribution and agency and answered by the guide for each jurisdiction covered include:
Direct distribution- •May a foreign supplier establish its own entity to import and distribute its products in your jurisdiction?
- •May a foreign supplier be a partial owner with a local company of the importer of its products?
- •What types of business entities are best suited for an importer owned by a foreign supplier? How are they formed? What laws govern them?
- •Does your jurisdiction restrict foreign businesses from operating in the jurisdiction, or limit foreign investment in or ownership of domestic business entities?
- •May the foreign supplier own an equity interest in the local entity that distributes its products?
- •What are the tax considerations for foreign suppliers and for the formation of an importer owned by a foreign supplier? What taxes are applicable to foreign businesses and individuals that operate in your jurisdiction or own interests in local businesses?
- •What distribution structures are available to a supplier?
- •What laws and government agencies regulate the relationship between a supplier and its distributor, agent or other representative? Are there industry self-regulatory constraints or other restrictions that may govern the distribution relationship?
- •Are there any restrictions on a supplier’s right to terminate a distribution relationship without cause if permitted by contract? Is any specific cause required to terminate a distribution relationship? Do the answers differ for a decision not to renew the distribution relationship when the contract term expires?
- •Is any mandatory compensation or indemnity required to be paid in the event of a termination without cause or otherwise?
- •Will your jurisdiction enforce a distribution contract provision prohibiting the transfer of the distribution rights to the supplier’s products, all or part of the ownership of the distributor or agent, or the distributor or agent’s business to a third party?
- •Are there limitations on the extent to which your jurisdiction will enforce confidentiality provisions in distribution agreements?
- •Are restrictions on the distribution of competing products in distribution agreements enforceable, either during the term of the relationship or afterwards?
- •May a supplier control the prices at which its distribution partner resells its products? If not, how are these restrictions enforced?
- •May a supplier influence resale prices in other ways, such as suggesting resale prices, establishing a minimum advertised price policy, announcing it will not deal with customers who do not follow its pricing policy, or otherwise?
- •May a distribution contract specify that the supplier’s price to the distributor will be no higher than its lowest price to other customers?
- •Are there restrictions on a seller’s ability to charge different prices to different customers, based on location, type of customer, quantities purchased, or otherwise?
- •May a supplier restrict the geographic areas or categories of customers to which its distribution partner resells? Are exclusive territories permitted? May a supplier reserve certain customers to itself? If not, how are the limitations on such conduct enforced? Is there a distinction between active sales efforts and passive sales that are not actively solicited, and how are those terms defined?
- •May a supplier restrict or prohibit e-commerce sales by its distribution partners?
- •Under what circumstances may a supplier refuse to deal with particular customers? May a supplier restrict its distribution’s ability to deal with particular customers?
- •Under which circumstances might a distribution or agency agreement be deemed a reportable transaction under merger control rules and require clearance by the competition authority? What standards would be used to evaluate such a transaction?
- •Do your jurisdiction’s antitrust or competition laws constrain the relationship between suppliers and their distribution partners in any other ways? How are any such laws enforced and by which agencies? Can private parties bring actions under antitrust or competition laws? What remedies are available?
- •Are there ways in which a distributor or agent can prevent parallel or “grey market” imports into its territory of the supplier's products?
- •What restrictions exist on the ability of a supplier or distributor to advertise and market the products it sells? May a supplier pass all or part of its cost of advertising on to its distribution partners or share in its cost of advertising?
- •How may a supplier safeguard its intellectual property from infringement by its distribution partners and by third parties? Are technology-transfer agreements common?
- •What consumer protection laws are relevant to a supplier or distributor?
- •Briefly describe any legal requirements regarding recalls of distributed products. May the distribution agreement delineate which party is responsible for carrying out and absorbing the cost of a recall?
- •To what extent may a supplier limit the warranties it provides to its distribution partners and to what extent can both limit the warranties provided to their downstream customers?
- •Are there restrictions on the exchange of information between a supplier and its distribution partners about the customers and end users of their products? Who owns such information and what data protection or privacy regulations are applicable? (If applicable, to the extent the EU Schrems decision affects the answer, with regard to the sharing of information between the US and Europe, discuss the issue and how it can be addressed).
- •May a supplier approve or reject the individuals who manage the distribution partner’s business, or terminate the relationship if not satisfied with the management?
- •Are there circumstances under which a distributor or agent would be treated as an employee of the supplier, and what are the consequences of such treatment? How can a supplier protect against responsibility for potential violations of labour and employment laws by its distribution partners?
- •Is the payment of commission to a commercial agent regulated?
- •What good faith and fair dealing requirements apply to distribution relationships?
- •Are there laws requiring that distribution agreements or intellectual property licence agreements be registered with or approved by any government agency?
- •To what extent are anti-bribery or anti-corruption laws applicable to relationships between suppliers and their distribution partners?
- •Are there any other restrictions on provisions in distribution contracts or limitations on their enforceability? Are there any mandatory provisions? Are there any provisions that local law will deem included even if absent?
- •Are there restrictions on the parties’ contractual choice of a country’s law to govern a distribution contract?
- •Are there restrictions on the parties’ contractual choice of courts or arbitration tribunals, whether within or outside your jurisdiction, to resolve contractual disputes?
- •What courts, procedures and remedies are available to suppliers and distribution partners to resolve disputes? Are foreign businesses restricted in their ability to make use of these courts and procedures? Can they expect fair treatment? To what extent can a litigant require disclosure of documents or testimony from an adverse party? What are the advantages and disadvantages to a foreign business of resolving disputes in your country’s courts?
- •Will an agreement to mediate or arbitrate disputes be enforced in your jurisdiction? Are there any limitations on the terms of an agreement to arbitrate? What are the advantages and disadvantages for a foreign business of resolving disputes by arbitration in a dispute with a business partner in your country?
Click here to download the Electricity regulation 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 27 jurisdictions are covered in this report:
Angola; Argentina; Australia; Belgium; Brazil; Costa Rica; Croatia; Ecuador; Ghana; India; Indonesia; Ireland; Italy; Japan; Kenya; Korea; Mexico; Netherlands; Nigeria; Panama; Poland; Portugal; South Africa; Spain; Turkey; United Kingdom; United States.
QuestionsThe set of questions relating to the topic of electricity regulation and answered by the guide for each jurisdiction covered include:
- •What is the government policy and legislative framework for the electricity sector?
- •What is the organisational structure for the generation, transmission, distribution and sale of power?
- •What authorisations are required to construct and operate generation facilities?
- •What are the policies with respect to connection of generation to the transmission grid?
- •Does government policy or legislation encourage power generation based on alternative energy sources such as renewable energies or combined heat and power?
- •What impact will government policy on climate change have on the types of resources that are used to meet electricity demand and on the cost and amount of power that is consumed?
- •Does the regulatory framework support electricity storage including research and development of storage solutions?
- •Does government policy encourage or discourage development of new nuclear power plants? How?
- •What authorisations are required to construct and operate transmission networks?
- •Who is eligible to obtain transmission services and what requirements must be met to obtain access?
- •Are there any government measures to encourage or otherwise require the expansion of the transmission grid?
- •Who determines the rates and terms for the provision of transmission services and what legal standard does that entity apply?
- •Which entities are responsible for the reliability of the transmission grid and what are their powers and responsibilities?
- •What authorisations are required to construct and operate distribution networks?
- •Who is eligible to obtain access to the distribution network and what requirements must be met to obtain access?
- •Are there any governmental measures to encourage or otherwise require the expansion of the distribution network?
- •Who determines the rates or terms for the provision of distribution services and what legal standard does that entity apply?
- •What authorisations are required for the sale of power to customers and which authorities grant such approvals?
- •Is there any tariff or other regulation regarding power sales?
- •Who determines the rates for sales of wholesale power and what standard does that entity apply?
- •To what extent are electricity utilities that sell power subject to public service obligations?
- •Which authorities determine regulatory policy with respect to the electricity sector?
- •What is the scope of each regulator’s authority?
- •How is each regulator established and to what extent is it considered to be independent of the regulated business and of governmental officials?
- •To what extent can decisions of the regulator be challenged or appealed, and to whom? What are the grounds and procedures for appeal?
- •Which bodies have the authority to approve or block mergers or other changes in control over businesses in the sector or acquisition of utility assets?
- •What criteria and procedures apply with respect to the review of mergers, acquisitions and other transfers of control? How long does it typically take to obtain a decision approving or blocking the transaction?
- •Which authorities have the power to prevent or prosecute anticompetitive or manipulative practices in the electricity sector?
- •What substantive standards are applied to determine whether conduct is anti-competitive or manipulative?
- •What authority does the regulator (or regulators) have to preclude or remedy anti-competitive or manipulative practices?
- •Are there any special requirements or limitations on acquisitions of interests in the electricity sector by foreign companies?
- •What authorisations are required to construct and operate interconnectors?
- •What rules apply to access to interconnectors and to cross-border electricity supply, especially interconnection issues?
- •What restrictions exist on transactions between electricity utilities and their affiliates?
- •Who enforces the restrictions on utilities dealing with affiliates and what are the sanctions for non-compliance?
Click here to download the Environment 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 12 jurisdictions are covered in this report:
Brazil; China; Denmark; Dominican Republic; Germany; Korea; Mexico; Portugal; Spain; Turkey; United Kingdom; United States.
QuestionsThe set of questions relating to the topic of environment and answered by the guide for each jurisdiction covered include:
Legislation- •What are the main statutes and regulations relating to the environment?
- •Is there a system of integrated control of pollution?
- •What are the main characteristics of the rules applicable to soil pollution?
- •What types of waste are regulated and how?
- •What are the main features of the rules governing air emissions?
- •How are fresh water and seawater, and their associated land, protected?
- •What are the main features of the rules protecting natural spaces and landscapes?
- •What are the main features of the rules protecting flora and fauna species?
- •What are the main features of the rules governing noise, odours and vibrations?
- •Is there a general regime on liability for environmental damage?
- •Is there any type of environmental tax?
- •Are there specific rules governing hazardous activities?
- •What are the main features of the rules governing hazardous products and substances?
- •What are the regulatory requirements regarding the prevention of industrial accidents?
- •What are the main environmental aspects to consider in M&A transactions?
- •What are the main environmental aspects to consider in other transactions?
- •Is environmental protection taken into consideration by public procurement regulations?
- •Which types of activities are subject to environmental assessment?
- •What are the main steps of the environmental assessment process?
- •Which authorities are responsible for the environment and what is the scope of each regulator’s authority?
- •What are the typical steps in an investigation?
- •What is the procedure for making administrative decisions?
- •What are the sanctions and remedies that may be imposed by the regulator for violations?
- •To what extent may decisions of the regulators be appealed, and to whom?
- •Are environmental law proceedings in court civil, criminal or both?
- •What are the powers of courts in relation to infringements of environmental law?
- •Are civil claims allowed regarding infringements of environmental law?
- •What defences or indemnities are available?
- •Are there specific defences in the case of directors’ or officers’ liability?
- •What is the appeal process from trials?
- •Is your country a contracting state to any international environmental treaties, or similar agreements?
- •To what extent is regulatory policy affected by these treaties?
Click here to download the Equity derivatives 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 11 jurisdictions are covered in this report:
Australia; China; Germany; Hong Kong; Japan; Mexico; Norway; Spain; Switzerland; United Kingdom; United States
QuestionsThe set of questions relating to the topic of Equity derivatives and answered by the guide for each jurisdiction covered include:
General- •Other than transactions between dealers, what are the most typical types of over-the-counter (OTC) equity derivatives transactions and what are the common uses of these transactions?
- •May market participants borrow shares and sell them short in the local market? If so, what rules govern short selling?
- •Describe the primary laws and regulations surrounding OTC equity derivatives transactions between dealers. What regulatory authorities are primarily responsible for administering those rules?
- •In addition to dealers, what types of entities may enter into OTC equity derivatives transactions?
- •Describe the primary laws and regulations surrounding OTC equity derivatives transactions between a dealer and an eligible counterparty that is not the issuer of the underlying shares or an affiliate of the issuer. What regulatory authorities are primarily responsible for administering those rules?
- •Do securities registration issues arise if the issuer of the underlying shares or an affiliate of the issuer sells the issuer’s shares via an OTC equity derivative?
- •May issuers repurchase their shares directly or via a derivative?
- •What types of risks do dealers face in the event of a bankruptcy or insolvency of the counterparty? Do any special bankruptcy or insolvency rules apply if the counterparty is the issuer or an affiliate of the issuer?
- •What types of reporting obligations does an issuer or a shareholder face when entering into an OTC equity derivatives transaction on the issuer’s shares?
- •Are counterparties restricted from entering into OTC equity derivatives transactions during certain periods? What other rules apply to OTC equity derivatives transactions that address insider trading?
- •What additional legal issues arise if a counterparty to an OTC equity derivatives transaction is the issuer of the underlying shares or an affiliate of the issuer?
- •What types of taxation issues arise in issuer OTC equity derivatives transactions and third-party OTC equity derivatives transactions?
- •Describe the liability regime related to OTC equity derivatives transactions. What transaction participants are subject to liability?
- •What stock exchange filings must be made in connection with OTC equity derivatives transactions?
- •What types of documents are typical in an OTC equity derivatives transaction?
- •For what types of OTC equity derivatives transaction are legal opinions typically given?
- •May an issuer lend its shares or enter into a repurchase transaction with respect to its shares to support hedging activities by third parties in the issuer’s shares?
- •What securities registration or other issues arise if a borrower pledges restricted or controlling shareholdings to secure a margin loan or a collar loan?
- •If a borrower in a margin loan files for bankruptcy protection, can the lender seize and sell the pledged shares without interference from the bankruptcy court or any other creditors of the borrower? If not, what techniques are used to reduce the lender’s risk that the borrower will file for bankruptcy or to prevent the bankruptcy court from staying enforcement of the lender’s remedies?
- •What is the structure of the market for listed equity options?
- •Describe common collateral arrangements for listed, cleared and uncleared equity derivatives transactions.
- •What categories of equity derivatives transactions must be centrally cleared and what rules govern clearing?
- •What categories of equity derivaties must be exchange-traded and what rules govern trading?
- •Must counterparties exchange collateral for some categories of equity derivatives transactions?
- •What is the territorial scope of the laws and regulations governing listed, cleared and uncleared equity derivatives transactions?
- •What registration or authorisation requirements apply to market participants that deal or invest in equity derivatives, and what are the implications of registration?
- •What reporting requirements apply to market participants that deal or invest in equity derivatives?
- •What legal issues arise in the design and issuance of structured products linked to an unaffiliated third party’s shares or to a basket or index of third-party shares? What additional disclosure and other legal issues arise if the structured product is linked to a proprietary index?
- •Describe the liability regime related to the issuance of structured products?
- •What registration, disclosure, tax and other legal issues arise when an issuer sells a security that is convertible for shares of the same issuer?
- •What registration, disclosure, tax and other legal issues arise when an issuer sells a security that is exchangeable for shares of a third party? Does it matter whether the third party is an affiliate of the issuer?
- •Are there any other current developments or emerging trends that should be noted?
Click here to download the Financial services litigation 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 11 jurisdictions are covered in this report:
Australia; Brazil; China; Greece; Ireland; Korea; South Africa; Switzerland; United Arab Emirates; United Kingdom; United States
QuestionsThe set of questions relating to the topic of financial services litigation and answered by the guide for each jurisdiction covered include:
Nature of claims- •What are the most common causes of action brought against banks and other financial services providers by their customers?
- •In claims for the misspelling of financial products, what types of non-contractual duties have been recognised by the court? In particular is there scope to plead that duties owed by financial institutions to the relevant regulator in your jurisdiction are also owed directly by a financial institution to its customers?
- •In claims for untrue or misleading statements or omissions in prospectuses, listing particulars and periodic financial disclosures, is there a statutory liability regime?
- •Is there an implied duty of good faith in contracts concluded between financial institutions and their customers? What is the effect of this duty on financial services litigation?
- •In what circumstances will a financial institution owe fiduciary duties to its customers? What is the effect of such duties on financial services litigation?
- •How are standard form master agreements for particular financial transactions treated?
- •Can a financial institution limit or exclude its liability? What statutory protections exist to protect the interests of consumers and private parties?
- •What other restrictions apply to the freedom of financial institutions to contract?
- •What remedies are available in financial services litigation?
- •Have any particular issues arisen in financial services cases in your jurisdiction in relation to limitation defences?
- •Do you have a specialist court or other arrangements for the hearing of financial services disputes in your jurisdiction? Are there special judges for financial cases?
- •Do any specific procedural rules apply to financial services litigation?
- •May parties agree to submit financial services disputes to arbitration?
- •Must parties initially seek to settle out of court or refer financial services disputes for alternative dispute resolution?
- •Are there any pre-action considerations specific to financial services litigation that the parties should take into account in your jurisdiction?
- •Does your jurisdiction recognise unilateral jurisdiction clauses?
- •What are the general disclosure obligations for litigants in your jurisdiction? Are banking secrecy, blocking statute or similar regimes applied in your jurisdiction? How does this affect financial services litigation?
- •Must financial institutions disclose confidential client documents during court proceedings? What procedural devices can be used to protect such documents?
- •May private parties request disclosure of personal data held by financial services institutions?
- •What data governance issues are of particular importance to financial disputes in your jurisdiction? What case management techniques have evolved to deal with data issues?
- •What powers do regulatory authorities have to bring court proceedings in your jurisdiction? In particular, what remedies may they seek?
- •Are communication between financial institutions and regulators and other regulatory materials subject to any disclosure restrictions or claims of privilege?
- •May private parties bring court proceedings against financial institutions directly for breaches of regulations?
- •In a claim by private party against a financial institution, must the institution disclose complaints made against it by other private parties?
- •Where a financial institution has agreed with a regulator to conduct a business review or redress exercise, may private parties directly enforce the terms of that review or exercise?
- •Have changes to the regulatory landscape following the financial crisis impacted financial services litigation?
- •Is there an independent complaints procedure that customers can use to complain about financial services firms without bringing court claims?
- •Is there an extrajudicial process for private individuals to recover lost assets from insolvent financial services firms? What is the limit of compensation that can be awarded without bringing court claims?
- •What are the principal challenges currently facing the financial services litigation landscape in 2019? What trends are apparent in the nature and extend of financial services litigation? Are there any other noteworthy features that are specific to financial services litigation in your jurisdiction?
Click here to download the Fintech 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 22 jurisdictions are covered in this report:
Australia; Belgium; China; Czech Republic; Germany; Hong Kong; India; Indonesia; Japan; Korea; Malta; Netherlands; Norway; Russia; Singapore; Spain; Sweden; Switzerland; Taiwan; United Arab Emirates; United Kingdom; United States.
QuestionsThe set of questions relating to the topic of fintech and answered by the guide for each jurisdiction covered include:
Financial services regulation- •Which activities trigger a licensing requirement in your jurisdiction?
- •Is consumer lending regulated in your jurisdiction? Describe the general regulatory regime.
- •Are there restrictions on trading loans in the secondary market in your jurisdiction?
- •Describe the general regulatory regime for collective investment schemes and whether fintech companies would generally fall within the scope of any such regime.
- •Are managers of alternative investment funds regulated?
- •May regulated activities be passported into your jurisdiction?
- •May fintech companies obtain a licence to provide financial services in your jurisdiction without establishing a local presence?
- •Describe any specific regulation of peer-to-peer or marketplace lending in your jurisdiction.
- •Describe any specific regulation of crowdfunding in your jurisdiction.
- •Describe any specific regulation of automated investment advice (eg, robo-advice) in your jurisdiction.
- •Describe any specific regulation of invoice trading in your jurisdiction.
- •Are payment services a regulated activity in your jurisdiction?
- •Do fintech companies that wish to sell or market insurance products in your jurisdiction need to be regulated?
- •Are there any legal or regulatory rules in your jurisdiction regarding the provision of credit references or credit information services?
- •Are there any legal or regulatory rules in your jurisdiction that oblige financial institutions to make customer or product data available to third parties?
- •Does the regulator in your jurisdiction make any specific provision to encourage the launch of new banks?
- •Describe any specific rules relating to notification or consent requirements if a regulated business changes control.
- •Does the regulator in your jurisdiction make any specific provision for fintech services and companies? If so, what benefits do those provisions offer?
- •Does the regulator in your jurisdiction have formal relationships or arrangements with foreign regulators in relation to fintech activities?
- •Are there any local marketing rules applicable with respect to marketing materials for financial services in your jurisdiction?
- •Are there any foreign exchange or currency control restrictions in your jurisdiction?
- •If a potential investor or client makes an unsolicited approach either from inside the provider's jurisdiction or from another jurisdiction, is the provider carrying out a regulated activity requiring a licence in your jurisdiction?
- •If the investor or client is outside the provider's jurisdiction and the activities take place outside the jurisdiction, is the provider carrying out an activity that requires licensing in its jurisdiction?
- •Are there continuing obligations that fintech companies must comply with when carrying out cross-border activities?
- •What licensing exemptions apply where the services are provided to an account holder based outside the jurisdiction?
- •Are there any legal or regulatory rules or guidelines in relation to the use of distributed ledger (including blockchain) technology in your jurisdiction?
- •Are there any legal or regulatory rules or guidelines applicable (whether specifically or indirectly) to the use of digital currencies or digital wallets, including e-money, in your jurisdiction?
- •Are there any rules or guidelines relating to the operation of digital currency exchanges or brokerages in your jurisdiction?
- •Are there legal or regulatory rules or guidelines in relation to initial coin offerings (ICOs) or token generating events in your jurisdiction?
- •What are the requirements for executing loan agreements or security agreements? Is there a risk that loan agreements or security agreements entered into on a peer-to-peer or marketplace lending platform will not be enforceable?
- •What steps are required to perfect an assignment of loans originated on a peer-to-peer or marketplace lending platform? What are the implications for the purchaser if the assignment is not perfected? May these loans be assigned without informing the borrower?
- •Will the securitisation be subject to risk retention requirements?
- •Would a special purpose company for purchasing and securitizing peer-to-peer or marketplace loans be subject to a duty of confidentiality or data protection laws regarding information relating to the borrowers?
- •Which intellectual property rights are available to protect software, and how do you obtain those rights?
- •Is patent protection available for software-implemented inventions or business methods?
- •Who owns new intellectual property developed by an employee during the course of employment?
- •Do the same rules apply to new intellectual property developed by contractors or consultants? If not, who owns such intellectual property rights?
- •Are there any restrictions on a joint owner of intellectual property's right to use, license, charge or assign its right in intellectual property?
- •How are trade secrets protected? Are trade secrets kept confidential during court proceedings?
- •What intellectual property rights are available to protect branding and how do you obtain those rights?
- •How can new businesses ensure they do not infringe existing brands?
- •What remedies are available to individuals or companies whose intellectual property rights have been infringed?
- •Are there any legal or regulatory rules or guidelines surrounding the use of open-source software in the financial services industry?
- •What are the general legal or regulatory requirements relating to the use or processing of personal data?
- •Are there legal requirements or regulatory guidance relating to personal data specifically aimed at fintech companies?
- •What legal requirements or regulatory guidance exists in respect of anonymisation and aggregation of personal data for commercial gain?
- •Are there legal requirements or regulatory guidance with respect to the outsourcing by a financial services company of a material aspect of its business?
- •How common is the use of cloud computing among financial services companies in your jurisdiction?
- •Are there specific legal requirements or regulatory guidance with respect to the use of cloud computing in the financial services industry?
- •Are there specific legal requirements or regulatory guidance with respect to the internet of things?
- •Are there any tax incentives available for fintech companies and investors to encourage innovation and investment in the fintech sector in your jurisdiction?
- •Are there any specific competition issues that exist with respect to fintech companies in your jurisdiction or that may become an issue in future?
- •Are fintech companies (including those using or receiving digital currency, such as digital currency exchanges or companies launching ICOs) required by law or regulation to have procedures to combat bribery or money laundering?
- •Is there regulatory or industry anti-financial crime guidance for fintech companies?
Click here download the Gas regulation 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 24 jurisdictions are covered in this report:
Albania; Angola; Austria; Brazil; Croatia; Denmark; European Union; Faroe Islands; France; Germany; Greenland; India; Italy; Japan; Mexico; Myanmar; Nigeria; Norway; Pakistan; Portugal; Spain; Thailand; United Kingdom; United States
QuestionsThe set of questions relating to the topic of Gas regulation and answered by the guide for each jurisdiction covered include:
Description of domestic sector- •Describe the domestic natural gas sector, including the natural gas production, liquefied natural gas (LNG) storage, pipeline transportation, distribution, commodity sales and trading segments and retail sales and usage.
- •What percentage of the country’s energy needs is met directly or indirectly with natural gas and LNG? What percentage of the country’s natural gas needs is met through domestic production and imported production?
- •What is the government’s policy for the domestic natural gas sector and which bodies set it?
- •What is the ownership and organisational structure for production of natural gas (other than LNG)? How does the government derive value from natural gas production?
- •Describe the statutory and regulatory framework and any relevant authorisations applicable to natural gas exploration and production.
- •Are participants required to provide security or any guarantees to be issued with a licence to explore for or to store gas?
- •Describe in general the ownership of the natural gas pipeline transportation, and storage infrastructure.
- •Describe the statutory and regulatory framework and any relevant authorisations applicable to the construction, ownership, operation and interconnection of natural gas transportation pipelines, and storage.
- •How does a company obtain the land rights to construct a natural gas transportation or storage facility?
- •How is access to the natural gas transportation system and storage facilities arranged? How are tolls and tariffs established?
- •Can customers, other natural gas suppliers or an authority require a pipeline or storage facilities owner or operator to expand its facilities to accommodate new customers? If so, who bears the costs of interconnection or expansion?
- •Describe any statutory and regulatory requirements applicable to the processing of natural gas to extract liquids and to prepare it for pipeline transportation.
- •Describe the contractual regime for transportation and storage.
- •Describe in general the ownership of natural gas distribution networks.
- •Describe the statutory and regulatory structure and authorisations required to operate a distribution network. To what extent are gas distribution utilities subject to public service obligations?
- •How is access to the natural gas distribution grid organised? Describe any regulation of the prices for distribution services. In which circumstances can a rate or term of service be changed?
- •May the regulator require a distributor to expand its system to accommodate new customers? May the regulator require the distributor to limit service to existing customers so that new customers can be served?
- •Describe the contractual regime in relation to natural gas distribution.
- •What is the ownership and organisational structure for the supply and trading of natural gas?
- •To what extent are natural gas supply and trading activities subject to government oversight?
- •How are physical and financial trades of natural gas typically completed?
- •Must wholesale and retail buyers of natural gas purchase a bundled product from a single provider? If not, describe the range of services and products that customers can procure from competing providers.
- •What is the ownership and organisational structure for LNG, including liquefaction and export facilities, and receiving and regasification facilities?
- •Describe the regulatory framework and any relevant authorisations required to build and operate LNG facilities.
- •Describe any regulation of the prices and terms of service in the LNG sector.
- •Which government body may prevent or punish anti-competitive or manipulative practices in the natural gas sector?
- •What substantive standards does that government body apply to determine whether conduct is anti-competitive or manipulative?
- •What authority does the government body have to preclude or remedy anticompetitive or manipulative practices?
- •Does any government body have authority to approve or disapprove mergers or other changes in control over businesses in the sector or acquisition of production, transportation or distribution assets?
- •In the purchase of a regulated gas utility, are there any restrictions on the inclusion of the purchase cost in the price of services?
- •Are there any restrictions on the acquisition of shares in gas utilities? Do any corporate governance regulations or rules regarding the transfer of assets apply to gas utilities?
- •Are there any special requirements or limitations on foreign companies acquiring interests in any part of the natural gas?
- •To what extent is regulatory policy affected by treaties or other multinational agreements?
- •What rules apply to cross-border sales or deliveries of natural gas?
- •What restrictions exist on transactions between a natural gas utility and its affiliates?
- •Who enforces the affiliate restrictions and what are the sanctions for non-compliance?
Click here to download the High-yield debt 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 11 jurisdictions are covered in this report:
Brazil; China; Finland; France; Greece; Portugal; Russia; Spain; Switzerland; United Kingdom; United States
QuestionsThe set of questions relating to the topic of high-yield debt and answered by the guide for each jurisdiction covered include:
Market overview- •Discuss the major differences between high-yield debt securities and bank loans in your jurisdiction. What are some of the critical advantages and disadvantages?
- •Are you seeing increased regulation regarding either high-yield debt securities or bank loans in your jurisdiction?
- •Describe the current market activity and trends in your jurisdiction relating to high-yield debt securities financings.
- •Identify the main participants in a high-yielding debt financing in your jurisdiction and outline their roles and fees.
- •Describe any new trend as they relate to the covenant package, structure, regulatory review or other aspects of high-yield debt securities.
- •How are high-yield debt securities issued in your jurisdiction? Are there particular precedents or models that companies and investors tend to review prior to issuing the securities?
- •What is the typical maturity and call structure of a high-yield debt security? Are high-yield securities frequently issued with original issue discount? Describe any yield protection provisions typically included in the high-yield securities documentation.
- •How are high-yield debt securities offerings launched, priced and closed? How are coupons determined? Do you typically see fixed or floating rates?
- •Describe the main covenants restricting the operation of the debtor’s business in a typical high-yield debt securities transaction. Have you been seeing a convergence of covenants between the high-yield and bank markets?
- •Are you seeing any tightening of covenants or are you seeing investor protections being eroded? Are terms of covenants often changed between the launch and pricing of an offering?
- •Are there particular covenants that are looser or tighter, based on a particular industry sector?
- •Do changes of control, asset sales or similar transactions typically trigger any prepayment requirements?
- •Do you see the inclusion of “double trigger” change of control provisions tied to a ratings downgrade?
- •Is there the concept of a “crossover” covenant package in your jurisdiction for issuers who are on the verge of being investment grade? And if so, what are some of the key covenant differences?
- •Describe the disclosure requirements applicable to high-yield debt securities financings. Is there a particular regulatory body that reviews or approves such disclosure requirements?
- •Are there any limitations on the use of proceeds from an issuance of high-yield securities by an issuer?
- •On what grounds, if any, could an investor be precluded from investing in high-yield securities?
- •Are there any particular closing mechanics in your jurisdiction that an issuer of high-yield debt securities should be aware of?
- •Outline how guarantees among companies in a group typically operate in a high-yield deal in your jurisdiction. Are there limitations on guarantees?
- •What is the typical collateral package for high-yield debt securities in your jurisdiction?
- •Are there any limitations on security that can be granted to secure high-yield securities in your jurisdiction? Are there any limitations on types of assets that can be pledged as collateral? Are there any limitations on which entities can provide security?
- •Describe the typical collateral structure in your jurisdiction. For example, is it common to see crossing lien deals between high-yield debt securities and bank agreements?
- •Who typically bears the costs of legal expenses related to security interests?
- •How are security interests recorded? Is there a public register?
- •How are security interests typically enforced in the high-yield context?
- •How does high-yield debt rank in relation to other creditor interests?
- •Describe how intercreditor arrangements entered into by companies in your jurisdiction typically regulate voting and control between holders of high-yield debt securities and bank lenders?
- •May issuers set off interest payments on their securities against their tax liability? Are there any special considerations for the high-yield market?
- •Is it common for issuers to obtain a tax ruling from the competent authority in your jurisdiction in connection with the issuance of high-yield bonds?
Click here to download the Islamic finance and markets 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 9 jurisdictions are covered in this report:
France; Indonesia; Japan; Malaysia; Mauritius; Philippines, United Kingdom; United States; Uzbekistan.
QuestionsThe set of questions relating to the topic of Islamic finance and markets and answered by the guide for each jurisdiction covered include:
Overview- •In general terms, what policy has your jurisdiction adopted towards Islamic finance? Are Islamic finance products regulated differently from conventional instruments? What has been the legislative approach?
- •How well established is Islamic finance in your jurisdiction? Are Islamic windows permitted in your jurisdiction?
- •What is the main legislation relevant to Islamic banking, capital markets and insurance?
- •Which are the principal authorities charged with the oversight of banking, capital markets and insurance products?
- •Identify any notable guidance, policy statements or regulations issued by the regulators or other authorities specifically relevant to Islamic finance.
- •Is there a central authority responsible for ensuring that transactions or products are shariah-compliant? Are IFIs required to set up shariah supervisory boards? May third parties, related parties or fund sponsors provide supervisory board services or must the board be internal?
- •Do members of an institution’s shariah supervisory board require regulatory approval? Are there any other requirements for supervisory board members?
- •What are the requirements for Islamic banks to be authorised to carry out business in your jurisdiction?
- •May foreign institutions offer Islamic banking and capital markets services in your jurisdiction? Under what conditions?
- •What are the requirements for takaful and retakaful operators to gain admission to do business in your jurisdiction?
- •How can foreign takaful operators become admitted? Can foreign takaful or retakaful operators carry out business in your jurisdiction as non-admitted insurers? Is fronting a possibility?
- •Are there any specific disclosure or reporting requirements for takaful, sukuk and Islamic funds?
- •What are the sanctions and remedies available when products have been falsely marketed as shariah-compliant?
- •Which courts, tribunals or other bodies have jurisdiction to hear Islamic finance disputes?
- •Mudarabah — profit sharing partnership separating responsibility for capital investment and management.
- •Murabahah — cost plus profit agreement.
- •Musharakah — profit sharing joint venture partnership agreement.
- •Ijarah — lease to own agreement.
- •Wadiah — safekeeping agreement.
- •Sukuk — Islamic securities. Have sukuk or other Islamic securities been structured and issued in your jurisdiction to comply with Islamic principles, such as the prohibition of interest?
- •What is the legal position of sukuk holders in an insolvency or a restructuring? Are sukuk instruments viewed as equity or debt instruments? Have there been any court decisions or legislation declaring whether sukuk holders are deemed to own the underlying assets?
- •Takaful — Islamic insurance. Are there any conventional cooperative or mutual insurance vehicles that are, or could be adapted to be, shariah-compliant?
- •Which lines of insurance are currently covered in the takaful market? Is takaful typically ceded to conventional reinsurers or is retakaful common in practice?
- •What are the principal regulatory obstacles facing the Islamic finance industry in your jurisdiction?
- •In what circumstances may shariah law become the governing law for a contract or a dispute? Have there been any recent notable cases on jurisdictional issues, the applicability of shariah or the conflict of shariah and local law relevant to the finance sector?
- •Are there any special considerations for the takeover of an Islamic financial institution, outside the requirements of the general merger control regime?
- •Are there any notable features of the Islamic finance regime and markets for Islamic finance products in your jurisdiction not covered above?
Click here to download the Loans and Secured Financing 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 15 jurisdictions are covered in this report:
Brazil; British Virgin Islands; Cayman Islands; Egypt; Greece; Japan; Kenya; Luxembourg; Mexico; Portugal; Spain; Switzerland; United Kingdom; United States and Uzbekistan.
QuestionsThe set of questions relating to the topic of loans and secured financing and answered by the guide for each jurisdiction covered include:
Loans and secured financing- •What are the primary advantages and disadvantages in your jurisdiction of incurring indebtedness in the form of bank loans versus debt securities?
- •What are the most common forms of bank loan facilities? Discuss any other types of facilities commonly made available to the debtor in addition to, or as part of, the bank loan facilities.
- •Describe the types of investors that participate in bank loan financings and the overlap with the investors that participate in debt securities financings.
- •How are the terms of a bank loan facility affected by the type of investors participating in such facility?
- •Are bank loan facilities used as ‘bridges’ to permanent debt security financings? How do the structure and terms of bridge facilities deviate from those of a typical bank loan facility?
- •What role do agents or trustees play in administering bank loan facilities with multiple investors?
- •Describe the primary roles and typical fees of the financial institutions that arrange and syndicate bank loan facilities.
- •In cross-border transactions or secured transactions involving guarantees or collateral from entities organised in multiple jurisdictions, which jurisdiction’s laws govern the bank loan documentation?
- •Describe how capital and liquidity requirements impact the structure of bank loan facilities, including the availability of related facilities.
- •For public company debtors, are there disclosure requirements applicable to bank loan facilities?
- •How is the use of bank loan proceeds by the debtor regulated? What liability could investors be exposed to if the debtor uses the proceeds contrary to regulations? Can investors mitigate their liability?
- •Are there regulations that limit an investor’s ability to extend credit to debtors organised or operating in particular jurisdictions? What liability are investors exposed to if they lend to such debtors? Can the investors mitigate their liability?
- •Are there limitations on an investor’s ability to extend credit to a debtor based on the debtor’s leverage profile?
- •Do regulations limit the rate of interest that can be charged on bank loans?
- •What limitations are there on investors funding bank loans in a currency other than the local currency?
- •Describe any other regulatory requirements that have an impact on the structuring or the availability of bank loan facilities.
- •Which entities in the organisational structure typically provide collateral and guarantee support for bank loan financings? Are there limitations on which entities in the organisational structure are permitted to provide such support?
- •What types of obligations typically share with the bank loan obligations in the collateral and guarantee support? If so, are all such obligations equally and ratably covered by the collateral and guarantee support?
- •Which categories of assets are commonly pledged to secure bank loan financings? Describe any limitations on the pledge of assets.
- •Describe the method of creating or attaching a security interest on the main categories of assets.
- •What steps are necessary to perfect a security interest on the main categories of assets? What are the consequences of failing to perfect a security interest?
- •Can security interests extend to future-acquired assets? Can security interests secure future-incurred obligations?
- •Describe any maintenance requirements to avoid the automatic termination or expiration of security interests.
- •Are security interests on an asset automatically released following its sale by the debtor? If so, are the releases mandated by law or contract?
- •• What defences does a guarantor have against claims for non-fulfilment of guarantee obligations? Can such defences be waived?
- •Describe any parallel debt or similar requirements applicable in a secured bank loan financing where an agent acts for multiple investors.
- •What are the most common methods of enforcing security interests? What are the limitations on enforcement?
- •Describe the impact of fraudulent conveyance, financial assistance, thin capitalisation, corporate benefit and similar doctrines on the structure of bank loan financings.
- •What types of payment or lien subordination arrangements, or both, are common where the debtor has obligations owing to more than one class of creditors?
- •What creditor groups are typically included as parties to the intercreditor agreement? Are all creditor groups treated the same under the intercreditor agreement?
- •Are junior creditors typically stayed from enforcing remedies until senior creditors have been repaid? What enforcement rights do junior creditors have prior to the repayment of senior debt?
- •What rights do junior creditors have during a bankruptcy or insolvency proceeding involving the debtor?
- •How do the terms of the intercreditor arrangement change if creditor groups will be secured on a pari passu basis?
- •What forms or standardised terms are commonly used to prepare the bank loan documentation?
- •What are the customary pricing or interest rate structures for bank loans? Do the pricing or interest rate structures change if the bank loan is denominated in a currency other than the domestic currency?
- •Have any procedures been adopted in bank loan documentation in your jurisdiction to replace LIBOR as a benchmark interest rate for loans?
- •What other bank loan yield determinants are commonly used?
- •Describe any yield protection provisions typically included in the bank loan documentation.
- •Do bank loan agreements typically allow additional debt that is secured on a pari passu basis with the senior secured bank loans?
- •What types of financial maintenance covenants are commonly included in bank loan documentation, and how are such covenants calculated?
- •Describe any other covenants restricting the operation of the debtor’s business commonly included in the bank loan documentation.
- •What types of events typically trigger mandatory prepayment requirements? May the debtor reinvest asset sale or casualty event proceeds in its business in lieu of prepaying the bank loans? Describe other common exceptions to the mandatory prepayment requirements.
- •Describe generally the debtor’s indemnification and expense reimbursement obligations, referencing any common exceptions to these obligations.
Click here to download the Mining 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 23 jurisdictions are covered in this report:
Angola; Argentina; Brazil; Canada; Chile; Democratic Republic of the Congo; Ecuador; Finland; Ghana; Greenland; India; Mexico; Mozambique; Myanmar; Peru; Philippines; South Africa; Sweden; Thailand; United Kingdom; United States; Uzbekistan; Zambia
QuestionsThe set of questions relating to the topic of mining and answered by the guide for each jurisdiction covered include:
Mining industry- •What is the nature and importance of the mining industry in your country?
- •What are the target minerals?
- •Which regions are most active?
- •Is the legal system civil or common law-based?
- •How is the mining industry regulated?
- •What are the principal laws that regulate the mining industry? What are the principal regulatory bodies that administer those laws? Were there any major amendments in the past year?
- •What classification system does the mining industry use for reporting mineral resources and mineral reserves?
- •To what extent does the state control mining rights in your jurisdiction? Can those rights be granted to private parties and to what extent will they have title to minerals in the ground? Are there large areas where the mining rights are held privately or which belong to the owner of the surface rights? Is there a separate legal regime or process for third parties to obtain mining rights in those areas?
- •What information and data is publicly available to private parties that wish to engage in exploration and other mining activities? Is there an agency which collects mineral assessment reports from private parties? Must private parties file mineral assessment reports? Does the agency or the government conduct geoscience surveys, which become part of the database? Is the database available online?
- •What mining rights may private parties acquire? How are these acquired? What obligations does the rights holder have? If exploration or reconnaissance licences are granted, does such tenure give the holder an automatic or preferential right to acquire a mining licence? What are the requirements to convert to a mining licence?
- •What is the regime for the renewal and transfer of mineral licences?
- •What is the typical duration of mining rights?
- •Is there any distinction in law or practice between the mining rights that may be acquired by domestic parties and those that may be acquired by foreign parties?
- •How are mining rights protected? Are foreign arbitration awards in respect of domestic mining disputes freely enforceable in your jurisdiction?
- •What types of surface rights may mining rights holders request and acquire? How are these rights acquired? Can surface rights holders oppose these requests?
- •Does the government or do state agencies have the right to participate in mining projects? Is there a local listing requirement for the project company?
- •Are there provisions in law dealing with government expropriation of licences? What are the compensation provisions?
- •Are any areas designated as protected areas within your jurisdiction and which are off-limits or specially regulated?
- •What duties, royalties and taxes are payable by private parties carrying on mining activities? Are these revenue-based or profit-based?
- •What tax advantages and incentives are available to private parties carrying on mining activities?
- •Does any legislation provide for tax stabilisation or are there tax stabilisation agreements in force?
- •Is the government entitled to a carried interest, or a free carried interest in mining projects?
- •Are there any transfer taxes or capital gains imposed regarding the transfer of licences?
- •Is there any distinction between the duties, royalties and taxes payable by domestic parties and those payable by foreign parties?
- •What are the principal business structures used by private parties carrying on mining activities?
- •Is there a requirement that a local entity be a party to the transaction?
- •Are there jurisdictions with favourable bilateral investment treaties or tax treaties with your jurisdiction through which foreign entities will commonly structure their operations in your jurisdiction?
- •What are the principal sources of financing available to private parties carrying on mining activities? What role does the domestic public securities market play in financing the mining industry?
- •Does the government, its agencies or major pension funds provide direct financing to mining projects?
- •Describe the regime for taking security over mining interests.
- •What restrictions are imposed on the importation of machinery and equipment or services required in connection with exploration and extraction?
- •Which standard conditions and agreements covering equipment supplies are used in your jurisdiction?
- •What restrictions are imposed on the processing, export or sale of minerals? Are there any export quotas, licensing or other mechanisms that prevent producers from freely exporting their production?
- •What restrictions are imposed on the import of funds for exploration and extraction or the use of the proceeds from the export or sale of minerals?
- •What are the principal environmental laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?
- •What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?
- •What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?
- •What are the restrictions for building tailings or waste dams?
- •What are the principal health and safety, and labour laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?
- •What are the rules related to management and recycling of mining waste products? Who has the title and the right to explore and exploit mining waste products in tailings ponds and waste piles?
- •What restrictions and limitations are imposed on the use of domestic and foreign employees in connection with mining activities?
- •What are the principal community engagement or CSR (corporate social responsibility) laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?
- •How do the rights of aboriginal, indigenous or currently or previously disadvantaged peoples affect the acquisition or exercise of mining rights?
- •What international treaties, conventions or protocols relating to CSR issues are applicable in your jurisdiction?
- •Decribe any local legislation governing anti-bribery and corrupt practices.
- •Do companies in your country pay particular attention to any foreign legislation governing anti-bribery and foreign corrupt practices in your jurisdiction?
- •Has your jurisdiction enacted legislation or adopted international best practices regarding disclosure of payment by resource companies to government entities in accordance with the Extractive Industries Transparency Initiative (EITI) Standard?
- •Are there any foreign ownership restrictions in your jurisdiction relevant to the mining industry?
- •What international treaties apply to the mining industry or an investment in the mining industry?
- •What were the biggest mining news events over the past year in your jurisdiction and what were the implications? What are the current trends and developments in your jurisdiction’s mining industry?
Click here to download the Oil regulation 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 24 jurisdictions are covered in this report:
Angola; Argentina; Brazil; Denmark; Ecuador; Faroe Islands; Ghana; Greenland; India; Iraq; Italy; Japan; Mexico; Morocco; Mozambique; Myanmar; Norway; Papua New Guinea; Peru; Portugal; Senegal; Thailand; United Kingdom; United States
QuestionsThe set of questions relating the topic of oil regulation and answered by the guide for each jurisdiction covered include:
General- •Describe, in general terms, the key commercial aspects of the oil sector in your country.
- •What percentage of your country’s energy needs is covered, directly or indirectly, by oil as opposed tgas, electricity, nuclear or non-conventional sources? What percentage of the petroleum product needs of your country is supplied with domestic production?
- •Does your country have an overarching policy regarding oil-related activities or a general energy policy?
- •Is there an official, publicly available register for licences and licensees? Is there a register setting out oilfield ownership or operatorship, etc?
- •Describe the general legal system in your country.
- •Describe the key laws and regulations that make up the principal legal framework regulating oil activities.
- •Are there any legislative provisions that allow for expropriation of a licensee’s interest and, if so, under what conditions?
- •May the government revoke or amend a licensee’s interest?
- •Identify and describe the government regulatory and oversight bodies principally responsible for regulating oil exploration and production activities in your country. What sanctions for breach may be imposed by the regulatory and oversight bodies?
- •What government body maintains oil production, export and import statistics?
- •Who holds title over oil reservoirs? To what extent are mineral rights on private and public lands involved? Is there a legal distinction between surface rights and subsurface mineral rights? At what stage does title to extracted oil transfer to the licensee, lessee or contractor?
- •What is the general character of oil exploration and production activity conducted in your country? Are areas off-limits texploration and production?
- •How are rights texplore and produce granted? What is the procedure for applying to the government for such rights? To what extent are the terms of licences or contracts negotiable?
- •Does the government have any right to participate in a licence? If so, is there a maximum participating interest it can obtain and are there any mandatory carry requirements for its interest? What cost-recovery mechanism is in place to recover such carry? Does the government have any right to participate in the operatorship of a licence?
- •If royalties are paid, what are the royalty rates? Are they fixed? Do they differ between onshore and offshore production? Aside from tax, are there any other payments due to the government? Are there any tax stabilisation measures in place?
- •What is the customary duration of oil leases, concessions or licences?
- •For offshore production, how far seaward does the regulatory regime extend?
- •Is there a difference between the onshore and offshore regimes? Is there a difference between the regimes governing rights to explore for or produce different hydrocarbons?
- •Which entities may perform exploration and production activities? Describe any registration requirements. What criteria and procedures apply in selecting such entities?
- •What controls does the regulatory body have over operators? Can operatorship be revoked?
- •What is the legal regime for joint ventures?
- •How does reservoir unitisation apply tdomestic and cross-border reservoirs?
- •Is there any limit on a party’s liability under a licence, contract or concession?
- •Are parental guarantees or other forms of economic support common practice? Are security deposits required in respect of any work commitment or otherwise?
- •Must companies operating in your country prefer, or use a minimum amount of, locally sourced goods, services and capital or personnel?
- •Describe any social programme payment obligations that must be made by a licensee, lessee or contractor.
- •Is government consent required for a company ttransfer its interest in a licence, concession or production-sharing agreement? Does a change of control require similar approval? What is the process for obtaining approval? Are there any preemptive rights reserved for the government?
- •Is government consent required for a change of operator?
- •Are there any specific fees or taxes levied by the government on a transfer or change of control?
- •Who holds title to facilities and equipment used for oil exploration, development and transportation activities during the term and on termination of a licence, PSC or service contract?
- •What laws or regulations govern abandonment and decommissioning of oil and gas facilities and pipelines? In summary, what is the obligation and liability regime for decommissioning? Are there any other relevant issues concerning decommissioning?
- •Are security deposits required in respect of future decommissioning liabilities? If so, how are such deposits calculated and when does their payment become due?
- •How is transportation of crude oil and crude oil products regulated within the country and across national boundaries? Do different government bodies and authorities regulate pipeline, marine vessel and tanker truck transportation?
- •Where oil exploration and production activities are conducted under a production sharing contract, describe how recoverable costs can be determined and how recovery can be realised.
- •What health, safety and environment requirements apply to upstream oil-related facility operations on shore and offshore? What government body is responsible for this regulation; what enforcement authority does it wield? What kind of record-keeping is required? What are the penalties for non-compliance?
- •Must a minimum amount of local labour be employed? What are the visa requirements for foreign labour? Are there anti-discrimination requirements? What are the penalties for non-compliance?
- •What is the tax regime applicable toil exploration, production, transportation, and marketing and distribution activities? What government body wields tax authority?
- •Is there a mandatory price-setting regime for crude oil or crude oil products? If so, what are the requirements and penalties for noncompliance?
- •What government bodies have the authority to prevent or punish anticompetitive practices in connection with the extraction, transportation, refining or marketing of crude oil or crude oil products?
- •What is the process for procuring a government determination that a proposed action does not violate any anti-competitive standards? How long does the process generally take? What are the penalties?
- •Who holds title to seismic data collected during the term of and on termination of a licence, PSC or service contract? Can the regulator require the data owner to report or release the data?
- •To what extent is regulatory policy or activity affected by international treaties or other multinational agreements?
- •Are there special requirements or limitations on the acquisition of oil-related interests by foreign companies or individuals? Must foreign investors have a local presence?
- •Do special rules apply to cross-border sales or deliveries of crude oil or crude oil products? Are there any volumetric supply obligations for the local market that prevail over the export rights of the oil producer?
- •What are the current trends in your jurisdiction? What can we expect in the near future? Are there current proposals to change the regulatory or staturory frameworks? What areas may be of particular interest to foreign investors?
Click here to download the Ports and terminals 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 21 jurisdictions are covered in this report:
Argentina; Brazil; Canada; China; Croatia; Cyprus; Denmark; Germany; Hong Kong; India; Netherlands; Paraguay; Peru; Portugal; Russia; Sri Lanka; Turkey; United Arab Emirates; United Kingdom; United States; Venezuela
QuestionsThe set of questions relating to the topic of ports and terminals and answered by the guide for each jurisdiction covered include:
General- •Which are the key ports in your jurisdiction and what sort of facilities do they comprise? What is the primary purpose of the ports?
- •Describe any port reform that has been undertaken over the last few decades and the principal port model or models in your jurisdiction.
- •Is there an overall state policy for the development of ports in your jurisdiction?
- •What “green port” principles are proposed or required for ports and terminals in your jurisdiction?
- •Is there a legislative framework for port development or operations in your jurisdiction?
- •Is there a regulatory authority for each port or for all ports in your jurisdiction?
- •What are the key competencies and powers of the port regulatory authority in your jurisdiction?
- •How is a harbourmaster for a port in your jurisdiction appointed?
- •Are ports in your jurisdiction subject to specific national competition rules?
- •Are there regulations in relation to the tariffs that are imposed on ports and terminals users in your jurisdiction and how are tariffs collected?
- •Does the state have any public service obligations in relation to port access or services? Can it satisfy these obligations through a contract with a private party?
- •Can a state entity enter into a joint venture with a port operator for the development or operation of a port in your jurisdiction? Is the state’s stake in the venture subject to any percentage threshold?
- •Are there restrictions on foreign participation in port projects?
- •Is the legislation governing procurement and PPP general or specific?
- •May the government or relevant port authority consider proposals for port privatisation/PPP other than as part of a formal tender?
- •What criteria are considered when awarding port concessions and port joint venture agreements?
- •Is there a model PPP agreement that is used for port projects? To what extent can the public body deviate from its terms?
- •What government approvals are required for the implementation of a port PPP agreement in your jurisdiction? Must any specific law be passed in your jurisdiction for this?
- •On what basis are port projects in your jurisdiction typically implemented?
- •Is there a minimum or maximum term for port PPPs in your jurisdiction? What is the average term?
- •On what basis can the term be extended?
- •What fee structures are used in your jurisdiction? Are they subject to indexation?
- •Does the government provide guarantees in relation to port PPPs or grant the port operator exclusivity?
- •What government approvals are required for a port operator to commence construction at the relevant port? How long does it typically take to obtain approvals?
- •Does the government or relevant port authority typically undertake any part of the port construction?
- •Does the port operator have to adhere to any specific construction standards, and may it engage any contractor it wishes?
- •What remedies are available for delays and defects in the construction of the port?
- •What government approvals are required in your jurisdiction for a port operator to commence operations following construction? How long does it typically take to obtain approvals?
- •What services does a port operator and what services does the port authority typically provide in your jurisdiction? Do the port authorities typically charge the port operator for any services?
- •Does the government or relevant port authority typically give any commitments in relation to access to the hinterland? To what extent does it require the operator to finance development of access routes or interconnections?
- •How do port authorities in your jurisdiction oversee terminal operations and in what circumstances may a port authority require the operator to suspend them?
- •In what circumstances may the port authorities in your jurisdiction access the port area or take over port operations?
- •What remedies are available to the port authority or government against a port operator that fails to operate and maintain the port as agreed?
- •What assets must port operators transfer to the relevant port authority on termination of a concession? Must port authorities pay any compensation for transferred assets?
- •Is a port operator that is to construct or operate a port in your jurisdiction permitted (or required) to do so via a special purpose vehicle (SPV)? Must it be incorporated in your jurisdiction?
- •Are ownership interests in the port operator freely transferable?
- •Can the port operator grant security over its rights under the PPP agreement to its project financing banks? Does a port authority in your jurisdiction typically agree to enter into direct agreements with the project financing banks and, if so, what are the key terms?
- •In what circumstances may agreements to construct or operate a port facility be varied or terminated?
- •What remedies are available to a government or port authority for contractual breach by a port operator?
- •Must all port PPP agreements be governed by the laws of your jurisdiction?
- •How are disputes between the government or port authority and the port operator customarily settled?
Click here to download the private equity (fund formation) 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 22 jurisdictions are covered in this report:
Australia; Austria; Brazil; British Virgin Islands; Canada; Cayman Islands; China; Colombia; Croatia; Egypt; Germany; Indonesia; Israel; Italy; Japan; Korea; Luxembourg; Saudi Arabia; Spain; Switzerland; United Kingdom; United States.
QuestionsThe set of questions relating to the topic of private equity (fund formation) and answered by the guide for each jurisdiction covered include:
Formation and terms operation- •What legal form of vehicle is typically used for private equity funds formed in your jurisdiction? Does such a vehicle have a separate legal personality or existence under the law of your jurisdiction? In either case, what are the legal consequences for investors and the manager?
- •What is the process for forming a private equity fund vehicle in your jurisdiction?
- •Is a private equity fund vehicle formed in your jurisdiction required to maintain locally a custodian or administrator, a registered office, books or records, or a corporate secretary, and how is that requirement typically satisfied?
- •What access to information about a private equity fund formed in your jurisdiction is the public granted by law? How is it accessed? If applicable, what are the consequences of failing to make such information available?
- •In what circumstances would the limited liability of third-party investors in a private equity fund formed in your jurisdiction not be respected as a matter of local law?
- •What are the fiduciary duties owed to a private equity fund formed in your jurisdiction and its third-party investors by that fund manager (or other similar control party or fiduciary) under the laws of your jurisdiction, and to what extent can those fiduciary duties be modified by agreement of the parties?
- •Does your jurisdiction recognise a “gross negligence” (as opposed to “ordinary negligence”) standard of liability applicable to the management of a private equity fund?
- •Are there any other special issues or requirements particular to private equity fund vehicles in your jurisdiction? Is conversion or redomiciling to vehicles in your jurisdiction permitted? If so, in converting or redomiciling limited partnerships formed in other jurisdictions into limited partnerships in your jurisdiction, what are the most material terms that typically must be modified?
- •With respect to institutional sponsors of private equity funds organised in your jurisdiction, what are some of the primary legal and regulatory consequences and other key issues for the private equity fund and it general partner and investment adviser arising out of a bankruptcy, insolvency, change of control, restructuring or similar transaction of the private equity fund's sponsor?
- •What are the principal regulatory bodies that would have authority over a private equity fund and its manager in your jurisdiction, and what are the regulators' audit and inspection rights and managers regulatory reporting requirements to investors and regulators?
- •What are governmental approval, licensing or registration requirements applicable to a private equity fund in your jurisdiction? Does it make a difference whether there are significant investment activities in your jurisdiction?
- •Is a private equity fund's manager, or any of its officer, directors or control persons, required to register as an investment adviser in your jurisdiction?
- •Are there any specific qualifications or other requirements imposed on a private equity fund's manager, or any of its officers, directors or control persons in your jurisdiction?
- •Describe any rules (or policies of public pension plans or other government entities) in your jurisdiction that restrict, or require disclosure of, political contributions by a private equity fund's manager or investment adviser or their employees.
- •Describe any rules (or policies of public pension plans or other governmental entities) in your jurisdiction that restrict, or require disclosure by a private equity fund’s manager or investment adviser of, the engagement of placement agents, lobbyists or other intermediaries in the marketing of the fund to public pension plans and other governmental entities. Describe any rules that require a fund’s investment adviser or its employees and agents to register as lobbyists in the marketing of the fund to public pension plans and governmental entities.
- •Describe any legal or regulatory developments emerging from the recent global financial crisis that specifically affect banks with respect to investing in or sponsoring private equity funds.
- •Would a private equity fund vehicle formed in your jurisdiction be subject to taxation there with respect to its income or gains? Would the fund be required to withhold taxes with respect to distributions to investors? Please describe what conditions, if any, apply to a private equity fund to qualify for applicable tax exemptions.
- •Would non-resident investors in a private equity fund be subject to taxation or return-filing requirements in your jurisdiction?
- •Is it necessary or desirable to obtain a ruling from local tax authorities with respect to the tax treatment of a private equity fund vehicle formed in your jurisdiction? Are there any special tax rules relating to investors that are residents of your jurisdiction?
- •Must any significant organisational taxes be paid with respect to private equity funds organised in your jurisdiction?
- •Please describe briefly what special tax considerations, if any, apply with respect to a private equity fund’s sponsor.
- •Please list any relevant tax treaties to which your jurisdiction is a party and how such treaties apply to the fund vehicle.
- •Are there any other significant tax issues relating to private equity funds organised in your jurisdiction?
- •Describe the principal legal and regulatory restrictions on offers and sales of interests in private equity funds formed in your jurisdiction, including the type of investors to whom such funds (or private equity funds formed in other jurisdictions) may be offered without registration under applicable securities laws in your jurisdiction.
- •Describe any restrictions on the types of investors that may participate in private equity funds formed in your jurisdiction (other than those imposed by applicable securities laws described above).
- •Does your jurisdiction require any ongoing filings with, or notifications to, regulators regarding the identity of investors in private equity funds (including by virtue of transfers of fund interests) or regarding the change in the composition of ownership, management or control of the fund or the manager?
- •Does your jurisdiction require that the person offering interests in a private equity fund have any licences or registrations?
- •Describe any money laundering rules or other regulations applicable in your jurisdiction requiring due diligence, record keeping or disclosure of the identities of (or other related information about) the investors in a private equity fund or the individual members of the sponsor.
- •Are private equity funds able to list on a securities exchange in your jurisdiction and, if so, is this customary? What are the principal initial and ongoing requirements for listing? What are the advantages and disadvantages of a listing?
- •To what extent can a listed fund restrict transfers of its interests?
- •Are funds formed in your jurisdiction subject to any legal or regulatory restrictions that affect their participation in private equity transactions or otherwise affect the structuring of private equity transactions completed inside or outside your jurisdiction?
- •Describe any legal or regulatory issues that would affect the structuring of the sponsor’s compensation and profit-sharing arrangements with respect to the fund and, specifically, anything that could affect the sponsor’s ability to take management fees, transaction fees and a carried interest (or other form of profit share) from the fund.
Click here to download the Project Finance 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 23 jurisdictions are covered in this report:
Angola; Australia; Chile; Dominican Republic; Ecuador; England and Wales; Germany; India; Indonesia; Italy; Japan; Kenya; Korea; Mexico; Netherlands; Nigeria; Panama; Portugal; Spain; Sweden; Switzerland; United States and Vietnam.
QuestionsThe set of questions relating to the topic of project finance and answered by the guide for each jurisdiction covered include:
Creating collateral security packages- •What types of collateral and security interests are available?
- •How is a security interest in each type of collateral perfected and how is its priority established? Are any fees, taxes or other charges payable to perfect a security interest and, if so, are there lawful techniques to minimise them? May a corporate entity, in the capacity of agent or trustee, hold collateral on behalf of the project lenders (who may change from time to time) as the secured party? Is it necessary for the security agent and trustee to hold any licences to hold or enforce such security?
- •How can a creditor assure itself as to the absence of liens with priority to the creditor’s lien?
- •Outside the context of a bankruptcy proceeding, what steps should a project lender take to enforce its rights as a secured party over the collateral?
- •How does a bankruptcy proceeding in respect of the project company affect the ability of a project lender to enforce its rights as a secured party over the collateral? Are there any preference periods, clawback rights or other preferential creditors’ rights (eg, tax debts, employees’ claims) with respect to the collateral? What entities are excluded from bankruptcy proceedings and what legislation applies to them? What processes other than court proceedings are available to seize the assets of the project company in an enforcement?
- •What are the restrictions, controls, fees, taxes or other charges on foreign currency exchange?
- •What are the restrictions, controls, fees and taxes on remittances of investment returns or payments of principal, interest or premiums on loans or bonds to parties in other jurisdictions?
- •Must project companies repatriate foreign earnings? If so, must they be converted to local currency and what further restrictions exist over their use?
- •May project companies establish and maintain foreign currency accounts in other jurisdictions and locally?
- •What restrictions, fees and taxes exist on foreign investment in or ownership of a project and related companies? Do the restrictions also apply to foreign investors or creditors in the event of foreclosure on the project and related companies? Are there any bilateral investment treaties with key nation states or other international treaties that may afford relief from such restrictions? Would such activities require registration with any government authority?
- •What restrictions, fees and taxes exist on insurance policies over project assets provided or guaranteed by foreign insurance companies? May such policies be payable to foreign secured creditors?
- •What restrictions exist on bringing in foreign workers, technicians or executives to work on a project?
- •What restrictions exist on the importation of project equipment?
- •What laws exist regarding the nationalisation or expropriation of project companies and assets? Are any forms of investment specially protected?
- •What tax incentives or other incentives are provided preferentially to foreign investors or creditors? What taxes apply to foreign investments, loans, mortgages or other security documents, either for the purposes of effectiveness or registration?
- •What are the relevant government agencies or departments with authority over projects in the typical project sectors? What is the nature and extent of their authority? What is the history of state ownership in these sectors?
- •Who has title to natural resources? What rights may private parties acquire to these resources and what obligations does the holder have? May foreign parties acquire such rights?
- •What royalties and taxes are payable on the extraction of natural resources, and are they revenue- or profit-based?
- •What restrictions, fees or taxes exist on the export of natural resources?
- •What government approvals are required for typical project finance transactions? What fees and other charges apply?
- •Must any of the financing or project documents be registered or filed with any government authority or otherwise comply with legal formalities to be valid or enforceable?
- •How are international arbitration contractual provisions and awards recognised by local courts? Is the jurisdiction a member of the ICSID Convention or other prominent dispute resolution conventions? Are any types of disputes not arbitrable? Are any types of disputes subject to automatic domestic arbitration?
- •Which jurisdiction’s law typically governs project agreements? Which jurisdiction’s law typically governs financing agreements? Which matters are governed by domestic law?
- •Is a submission to a foreign jurisdiction and a waiver of immunity effective and enforceable?
- •What laws or regulations apply to typical project sectors? What regulatory bodies administer those laws?
- •What are the principal business structures of project companies? What are the principal sources of financing available to project companies?
- •Has PPP enabling legislation been enacted and, if so, at what level of government and is the legislation industry-specific?
- •What, if any, are the practical and legal limitations on PPP transactions?
- •What have been the most significant PPP transactions completed to date in your jurisdiction?
Click here to download the Public-private partnerships 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 15 jurisdictions are covered in this report:
Argentina; Bulgaria; China; Colombia; England & Wales; Ghana; Greece; Japan; Nigeria; Portugal; Romania; Spain; Turkey; United Arab Emirates; United States.
QuestionsThe set of questions relating to the topic of public-private partnerships and answered by the guide for each jurisdiction covered include:
General PPP framework- •How has the concept of public-private partnership (PPP) developed in your jurisdiction? What types of transactions are permitted and commonly used in your jurisdiction?
- •What categories of public infrastructure are subject to public-private partnership transactions in your jurisdictions?
- •Is there a legislative framework for PPPs in your jurisdiction, or are PPPs undertaken pursuant to general government powers as one-off transactions?
- •Is there a centralised PPP authority or may each agency carry out its own programme?
- •Are PPPs procured only at the national level or may state, municipal or other subdivision government bodies enter into PPPs?
- •How is the private party in a PPP remunerated in your jurisdiction?
- •May revenue risk or usage risk be shared between the private party and the government? How is risk shared?
- •In situations where the private party is compensated in whole or in part through availability or other periodic payments from the government, are the payment obligations of the government subject to the relevant legislative body approving budgetary funding in the future?
- •Is there any cap on the rate of return that may be earned by the private party in the PPP transaction?
- •Is the transfer of direct or indirect ownership interests in the project company or other participants restricted?
- •What procedures normally apply to a PPP procurement? What evaluation criteria are used to award a PPP transaction?
- •May the government consider proposals to deviate from the scope or technical characteristics of the work included in the procurement documentation during the procurement process, without altering such terms with respect to other proponents? How are such deviations assessed?
- •May government parties consider unsolicited proposals for PPP transactions? How are these evaluated?
- •Does the government party provide a stipend for unsuccessful shortlisted proponents or otherwise bear a portion of their costs?
- •Does the government party require that proposals include financing commitments for the PPP transaction? If it does not, are there any mechanisms during the procurement process to ensure that the applicable PPP transaction, once awarded, is financeable?
- •May the government ask its counsel to provide a legal opinion on the enforceability of the PPP agreement? May it provide representations as to the enforceability of the PPP agreement?
- •Are there restrictions on participation in PPP projects by foreign entities? May foreign entities exercise control over the project company?
- •Does local law mandate that any particular form of contract govern design and construction activities? Does it mandate the choice of governing law?
- •Does local law impose liability for design defects and, if so, on what terms?
- •Does local law require the inclusion of specific warranties? Are there implied warranties in cases where the relevant contract is silent? Does local law mandate or regulate the duration of warranties?
- •Are liquidated damages for delay in construction enforceable? Are certain penalty clauses unenforceable?
- •What restrictions are imposed by local law on the contractor’s ability to limit or disclaim liability for indirect or consequential damages?
- •May a contractor suspend performance for non-payment?
- •Does local law restrict “pay if paid” or “paid when paid” clauses?
- •Are “equivalent project relief” clauses enforceable under local law?
- •May the government party decide unilaterally to expand the scope of work under the PPP agreement?
- •Does local law entitle either party to have a PPP agreement “rebalanced” or set aside if it becomes unduly burdensome owing to unforeseen events? Can this be agreed to by the parties?
- •Are statutory lien laws applicable to construction work performed in connection with a PPP agreement?
- •Are there any other material provisions related to design and construction work that PPP agreements must address?
- •Are private parties’ obligations during the operating period required to be defined in detail or may the PPP agreement set forth performance criteria?
- •Are liquidated damages payable, or are deductions from availability payments possible, for the private party’s failure to operate and maintain the facility as agreed?
- •Are there any legal or customary requirements that facilities be refurbished before they are handed back to the government party at the end of the term?
- •How is the risk of delays in commercial or financial closing customarily allocated between the parties?
- •How is the risk of delay in obtaining the necessary permits customarily allocated between the parties?
- •How are force majeure and geotechnical, environmental and weather risks customarily allocated between the parties? Is force majeure treated as a general concept relating to acts outside the parties’ control or is it defined with reference to specific enumerated events?
- •How is risk for acts of third parties customarily allocated between parties to a PPP agreement?
- •How are political, legal and macroeconomic risks customarily allocated between the parties? What protection is afforded to the private party against discriminatory change of law or regulation?
- •What events entitle the private party to extensions of time to perform its obligations?
- •What events entitle the private party to additional compensation?
- •How is compensation calculated and paid?
- •Are there any legal or customary requirements for project agreements to specify a programme of insurance? Which party mandatorily or customarily bears the risk of insurance becoming unavailable on commercially reasonable terms?
- •What remedies are available to the government party for breach by the private party?
- •On what grounds may the PPP agreement be terminated?
- •Is there a possibility of termination for convenience?
- •If the PPP agreement is terminated, is compensation available?
- •Does the government provide debt financing or guarantees for PPP projects? On what terms? Which agencies are responsible?
- •Are lenders afforded privity of contract with the government party through direct agreements or similar mechanisms? What rights will lenders typically have under these agreements?
- •Is there a mechanism under which lenders may exercise step-in rights or take over the PPP project? Are lenders able to obtain a security interest in the PPP agreement itself?
- •Are lenders expressly afforded cure rights beyond those available to the project company or are they permitted to cure only during the same period and under the same conditions as the project company?
- •If the private party refinances the PPP project at a lower cost of funds, is there any requirement that the gains from such refinancing be shared with the government? Are there any restrictions on refinancing?
- •What key project agreements must be governed by local law?
- •Under local law, what immunities does the government party enjoy in PPP transactions? Which of these immunities can be waived by the government?
- •Is arbitration available to settle disputes under the project agreement between the government and the private party? If not, what regime applies?
- •Is there a requirement to enter into mediation or other preliminary dispute resolution procedures as a condition to seeking arbitration or other binding resolution?
- •Is there a special mechanism to deal with technical disputes?
Click here to download the Public procurement 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 34 jurisdictions are covered in this report:
Angola; Belgium; Bolivia; Bulgaria; Canada; Cape Verde; Chile; China; Cyprus; Egypt; European Union; Finland; France; Germany; Ghana; India; Ireland; Italy; Korea; North Macedonia; Malta; Mozambique; Netherlands; Norway; Panama; Poland; Portugal; Sao Tome and Principe; Spain; Sweden; Switzerland; Taiwan; Tanzania; United Kingdom; United States
QuestionsThe set of questions relating to the topic of public procurement and answered by the guide for each jurisdiction covered include:
Legislative framework- •What is the relevant legislation regulating the award of public contracts?
- •Is there any sector-specific procurement legislation supplementing the general regime?
- •In which respect does the relevant legislation supplement the EU procurement directives or the GPA?
- •Are there proposals to change the legislation?
- •Which, or what kinds of, entities have been ruled not to constitute contracting authorities?
- •Are contracts under a certain value excluded from the scope of procurement law? What are these threshold values?
- •Does the legislation permit the amendment of a concluded contract without a new procurement procedure?
- •Has there been any case law clarifying the application of the legislation in relation to amendments to concluded contracts?
- •In which circumstances do privatisations require a procurement procedure?
- •In which circumstances does the setting up of a public-private partnership (PPP) require a procurement procedure?
- •In which publications must regulated procurement contracts be advertised?
- •Are there limitations on the ability of contracting authorities to set criteria or other conditions to assess whether an interested party is qualified to participate in a tender procedure?
- •Is it possible to limit the number of bidders that can participate in a tender procedure?
- •How can a bidder that would have to be excluded from a tender procedure because of past irregularities regain the status of a suitable and reliable bidder? Is the concept of “self-cleaning” an established and recognised way of regaining suitability and reliability?
- •Does the relevant legislation specifically state or restate the fundamental principles for tender procedures: equal treatment, transparency, competition?
- •Does the relevant legislation or the case law require the contracting authority to be independent and impartial?
- •How are conflicts of interest dealt with?
- •How is the involvement of a bidder in the preparation of a tender procedure dealt with?
- •What is the prevailing type of procurement procedure used by contracting authorities?
- •Can related bidders submit separate bids in one procurement procedure?
- •Is the use of procedures involving negotiations with bidders subject to any special conditions?
- •If the legislation provides for more than one procedure that permits negotiations with bidders, which one is used more regularly in practice and why?
- •What are the requirements for the conclusion of a framework agreement?
- •May a framework agreement with several suppliers be concluded?
- •Under which conditions may the members of a bidding consortium be changed in the course of a procurement procedure?
- •Are there specific mechanisms to further the participation of small and medium-sized enterprises in the procurement procedure? Are there any rules on the division of a contract into lots? Are there rules or is there case law limiting the number of lots single bidders can be awarded?
- •What are the requirements for the admissibility of variant bids?
- •Must a contracting authority take variant bids into account?
- •What are the consequences if bidders change the tender specifications or submit their own standard terms of business?
- •What are the award criteria provided for in the relevant legislation?
- •What constitutes an “abnormally low” bid?
- •What is the required process for dealing with abnormally low bids?
- •Which authorities may rule on review applications? Is it possible to appeal against review decisions and, if so, how?
- •If more than one authority may rule on a review application, do these authorities have the power to grant different remedies?
- •How long do an administrative or judicial proceedings for the review of procurement decisions generally take?
- •What are the admissibility requirements?
- •What are the time limits in which applications for review of a procurement decision must be made?
- •Does an application for review have an automatic suspensive effect blocking the continuation of the procurement procedure or the conclusion of the contract?
- •Approximately what percentage of applications for the lifting of an automatic suspension are successful in a typical year?
- •Must unsuccessful bidders be notified before the contract with the successful bidder is concluded and, if so, when?
- •Is access to the procurement file granted to an applicant?
- •Is it customary for disadvantaged bidders to file review applications?
- •If a violation of procurement law is established in review proceedings, can disadvantaged bidders claim damages?
- •May a concluded contract be cancelled or terminated following a review application of an unsuccessful bidder if the procurement procedure that led to its conclusion violated procurement law?
- •Is legal protection available to parties interested in the contract in case of an award without any procurement procedure?
- •What are the typical costs of making an application for the review of a procurement decision?
Click here to download the Real estate 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 19 jurisdictions are covered in this report:
Austria; Croatia; Dominican Republic; England and Wales; France; Germany; India; Japan; Kenya; Malta; Mexico; Monaco; Myanmar; Nigeria; Romania; Slovenia; Switzerland; Thailand; United States.
QuestionsThe set of questions relating to the topic of real estate and answered by the guide for each jurisdiction covered include:
General- •How would you explain your jurisdiction’s legal system to an investor?
- •Does your jurisdiction have a system for registration or recording of ownership, leasehold and security interests in real estate? Must interests be registered or recorded?
- •What are the legal requirements for registration or recording conveyances, leases and real estate security interests?
- •What are the requirements for non-resident entities and individuals to own or lease real estate in your jurisdiction? What other factors should a foreign investor take into account in considering an investment in your jurisdiction?
- •If a non-resident invests in a property in your jurisdiction, are there exchange control issues?
- •What types of liability does an owner or tenant of, or a lender on, real estate face? Is there a standard of strict liability and can there be liability to subsequent owners and tenants including foreclosing lenders? What about tort liability?
- •How can owners protect themselves from liability and what types of insurance can they obtain?
- •How is the governing law of a transaction involving properties in two jurisdictions chosen? What are the conflict of laws rules in your jurisdiction? Are contractual choice of law provisions enforceable?
- •Which courts or other tribunals have subject-matter jurisdiction over real estate disputes? Which parties must be joined to a claim before it can proceed? What is required for out-of jurisdiction service? Must a party be qualified to do business in your jurisdiction to enforce remedies in your jurisdiction?
- •How do the laws in your jurisdiction regarding real estate ownership, tenancy and financing, or the enforcement of those interests in real estate, differ between commercial and residential properties?
- •How does your jurisdiction control or limit development, construction, or use of real estate or protect existing structures? Is there a planning process or zoning regime in place for real estate?
- •Does your jurisdiction have a legal regime for compulsory purchase or condemnation of real estate? Do owners, tenants and lenders receive compensation for a compulsory appropriation?
- •Are there any circumstances when real estate can be forfeited to or seized by the government for illegal activities or for any other legal reason without compensation?
- •Briefly describe the bankruptcy and insolvency system in your jurisdiction.
- •What legal forms can investment entities take in your jurisdiction? Which entities are not required to pay tax for transactions that pass through them (pass-through entities) and what entities best shield ultimate owners from liability?
- •What form of entities do foreign investors customarily use in your jurisdiction?
- •What are the organisational formalities for creating and maintaining the above entities? What requirements does your jurisdiction impose on a foreign entity? Does failure to comply incur monetary or other penalties? What are the tax consequences for a foreign investor in the use of any particular type of entity, and which type is most advantageous?
- •Describe the various categories of legal ownership, leasehold or other occupancy interests in real estate customarily used and recognised in your jurisdiction.
- •Is it customary in your jurisdiction to execute a form of non-binding agreement before the execution of a binding contract of sale? Will the courts in your jurisdiction enforce a non-binding agreement or will the courts confirm that a nonbinding agreement is not a binding contract? Is it customary in your jurisdiction to negotiate and agree on a term sheet rather than a letter of intent? Is it customary to take the property off the market while the negotiation of a contract is ongoing?
- •What are typical provisions in a contract of sale?
- •Who takes responsibility for a future environmental cleanup? Are clauses regarding long-term environmental liability and indemnity that survive the term of a contract common? What are typical general covenants? What remedies do the seller and buyer have for breach?
- •What are typical representations made by sellers of property regarding existing leases? What are typical covenants made by sellers of property concerning leases between contract date and closing date? Do they cover brokerage agreements and do they survive after property sale is completed? Are estoppel certificates from tenants customarily required as a condition to the obligation of the buyer to close under a contract of sale?
- •Is a lease generally subordinate to a security instrument pursuant to the provisions of the lease? What are the legal consequences of a lease being superior in priority to a security instrument upon foreclosure? Do lenders typically require subordination and non-disturbance agreements from tenants? Are ground (or head) leases treated differently from other commercial leases?
- •What steps are taken to ensure delivery of tenant security deposits to a buyer? How common are security deposits under a lease? Do leases customarily have periodic rent resets or reviews?
- •What is the typical method of title searches and are they customary? How and to what extent may acquirers protect themselves against bad title? Discuss the priority among the various interests in the estate. Is it customary to obtain a zoning report or legal opinion regarding legal use and occupancy?
- •Is it customary to arrange an engineering or environmental review? What are the typical requirements of such reviews? Is it customary to get representations or an indemnity? Is environmental insurance available? Is it customary to get representations or an indemnity? Is environmental insurance available?
- •Do lawyers usually review leases or are they reviewed on the business side? What are the lease issues you point out to your clients?
- •What other agreements does a lawyer customarily review?
- •How does a lawyer customarily prepare for a closing of an acquisition, leasing or financing?
- •Is the closing of the transfer, leasing or financing done in person with all parties present? Is it necessary for any agency or representative of the government or specially licensed agent to be in attendance to approve or verify and confirm the transaction?
- •What are the remedies for breach of a contract to sell or finance real estate?
- •What remedies are available to tenants and landlords for breach of the terms of the lease? Is there a customary procedure to evict a defaulting tenant and can a tenant claim damages from a landlord? Do general contract or special real estate rules apply? Are the remedies available to landlords different for commercial and residential leases?
- •Discuss the types of real estate security instruments available to lenders in your jurisdiction.
- •Is financing available for ground (or head) leases in your jurisdiction? How does the financing differ from financing for land ownership transactions?
- •What is the method of creating and perfecting a security interest in real estate?
- •Are third-party real estate appraisals required by lenders for their underwriting of loans? Must appraisers have specific qualifications?
- •What would be the ramifications of a lender from another jurisdiction making a loan secured by collateral in your jurisdiction? What is the form of lien documents in your jurisdiction? What other issues would you note for your clients?
- •How are interest rates on commercial and high-value property loans commonly set (with reference to LIBOR, central bank rates, etc)? What rate of interest is legally permissible in your jurisdiction and what are the consequences if a loan exceeds the legally permissible rate?
- •How are remedies against a debtor in default enforced in your jurisdiction? Is one action sufficient to realise all types of collateral? What is the time frame for foreclosure and in what circumstances can a lender bring a foreclosure proceeding? Are there restrictions on the types of legal actions that may be brought by lenders?
- •Are lenders entitled to recover a money judgment against the borrower or guarantor for any deficiency between the outstanding loan balance and the amount recovered in the foreclosure? Are there time limits on a lender seeking a deficiency judgment? Are there any limitations on the amount or method of calculation of the deficiency?
- •What actions can a lender take to protect its collateral until it has possession of the property?
- •May security documents provide for recourse to all of the assets of the borrower? Is recourse typically limited to the collateral and does that have significance in a bankruptcy or insolvency filing? Is personal recourse to guarantors limited to actions such as bankruptcy filing, sale of the mortgaged or hypothecated property or additional financing encumbering the mortgaged or hypothecated property or ownership interests in the borrower?
- •Is it typical to require a cash management system and do lenders typically take reserves? For what purposes are reserves usually required?
- •What other types of credit enhancements are common? What about forms of guarantee?
- •What covenants are commonly required by the lender in loan documents?
- •What are typical financial covenants required by lenders?
- •What are the requirements for creation and perfection of a security interest in moveable (personal) property? Is a “control” agreement necessary to perfect a security interest and, if so, what is required?
- •Do lenders require that each borrower be an SPE? What are the requirements to create and maintain an SPE? Is there a concept of an independent director of SPEs and, if so, what is the purpose? If the independent director is in place to prevent a bankruptcy or insolvency filing, has the concept been upheld?
Click here to download the Restructuring & insolvency 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 43 jurisdictions are covered in this report:
Australia; Austria; Bahamas; Bahrain; Belgium; Bermuda; Brazil; British Virgin Islands; Canada; Cayman Islands; China; Cyprus; Dominican Republic; England & Wales; European Union; France; Germany; Greece; Hong Kong; Hungary; India; Isle of Man; Italy; Japan; Jersey; Kenya; Korea; Malaysia; Mexico; Netherlands; Norway; Peru; Portugal; Russia; Singapore; Slovenia; South Africa; Spain; Switzerland; Thailand; United Arab Emirates; United States; Vietnam.
QuestionsThe set of questions relating to the topic of restructuring & insolvency and answered by the guide for each jurisdiction covered include:
General- •What main legislation is applicable to insolvencies and reorganisations?
- •What entities are excluded from customary insolvency or reorganization proceedings and what legislation applies to them? What assets are excluded or exempt from claims of creditors?
- •What procedures are followed in the insolvency of a government-owned enterprise? What remedies do creditors of insolvent public enterprises have?
- •Has your country enacted legislation to deal with the financial difficulties of institutions that are considered “too big to fail”?
- •What courts are involved? What are the rights of appeal from court orders? Does an appellant have an automatic right of appeal or must it obtain permission? Is there a requirement to post security to proceed with an appeal? (If so, how is the amount determined?)
- •What are the requirements for a debtor commencing a voluntary liquidation case and what are the effects?
- •What are the requirements for a debtor commencing a voluntary reorganisation and what are the effects?
- •How are creditors classified for purposed of a reorganisation plan and how is the plan approved? Can a reorganisation plan release non-debtor parties from liability, and, if so, in what circumstances?
- •What are the requirements for creditors placing a debtor into involuntary liquidation and what are the effects? Once the proceeding is opened, are there material differences to proceedings opened voluntarily?
- •What are the requirements for creditors commencing an involuntary reorganisation and what are the effects? Once the proceeding is opened, are there any material differences to proceedings opened voluntarily?
- •Do procedures exist for expedited reorganisations (eg, “prepackaged” reorganisations)?
- •How is a proposed reorganisation defeated and what is the effect of a reorganisation plan not being approved? What if the debtor fails to perform a plan?
- •Are there corporate procedures for the dissolution of a corporation? How do such processes contrast with bankruptcy proceedings?
- •How are liquidation and reorganisation cases formally concluded?
- •What is the test to determine if a debtor is insolvent?
- •Must companies commence insolvency proceedings in particular circumstances?
- •If proceedings are not commenced, what liability can result for directors and officers? What are the consequences for directors and officers if a company carries on business while insolvent?
- •Apart from failure to file for proceedings, are corporate officers and directors personally liable for their corporation’s obligations? Are they liable for corporate pre-insolvency or pre-reorganisation actions? Can they be subject to sanctions for other reasons?
- •Do the duties that directors owe to the corporation shift to the creditors when an insolvency or reorganisation proceeding is likely? When?
- •What powers can directors and officers exercise after liquidation or reorganisation proceedings are commenced by, or against, their corporation?
- •What prohibitions against the continuation of legal proceedings or the enforcement of claims by creditors apply in liquidations and reorganisations? In what circumstances may creditors obtain relief from such prohibitions?
- •When can the debtor carry on business during a liquidation or reorganisation? Is any special treatment given to creditors who supply goods or services after the filing? What are the roles of the creditors and the court in supervising the debtor’s business activities?
- •May a debtor in a liquidation or reorganisation obtain secured or unsecured loans or credit? What priority is given to such loans or credit?
- •In reorganisations and liquidations, what provisions apply to the sale of specific assets out of the ordinary course of business and to the sale of the entire business of the debtor? Does the purchaser acquire the assets “free and clear” of claims or do some liabilities pass with the assets?
- •Does your system allow for “stalking horse” bids in sale procedures and does your system permit credit bidding in sales?
- •Can a debtor undergoing a liquidation or reorganisation reject or disclaim an unfavourable contract? Are there contracts that may not be rejected? What procedure is followed to reject a contract and what is the effect of rejection on the other party? What happens if a debtor breaches the contract after the insolvency case is opened?
- •May an IP licensor or owner terminate the debtor’s right to use the IP when a liquidation or reorganisation is opened? To what extent may IP rights granted under an agreement with the debtor continue to be used?
- •Where personal information or customer data collected by a company in liquidation or reorganisation is valuable, are there any restrictions in your country on the use of that information or its transfer to a purchaser?
- •How frequently is arbitration used in liquidation or reorganisation proceedings? Are there certain types of disputes that may not be arbitrated? Can disputes that arise after the liquidation or reorganisation case is opened be arbitrated with the consent of the parties?
- •Are there processes by which some or all of the assets of a business may be seized outside of court proceedings? How are these processes carried out?
- •What remedies are available to unsecured creditors? Are the processes difficult or time-consuming? Are pre-judgment attachments available?
- •During the liquidation or reorganisation, what notices are given to creditors? What meetings are held and how are they called? What information regarding the administration of the estate, its assets and the claims against it is available to creditors or creditors’ committees? What are the liquidator’s reporting obligations?
- •What committees can be formed (or representative counsel appointed) and what powers or responsibilities do they have? How are they selected and appointed? May they retain advisers and how are their expenses funded?
- •If the liquidator has no assets to pursue a claim, may the creditors pursue the estate’s remedies? If so, to whom do the fruits of the remedies belong? Can they be assigned to a third party?
- •How is a creditor’s claim submitted and what are the time limits? How are claims disallowed and how does a creditor appeal? Can claims for contingent or unliquidated amounts be recognised? Are there provisions on the transfer of claims and must transfers be disclosed? How are the amounts of such claims determined?
- •To what extent may creditors exercise rights of set-off or netting in a liquidation or in a reorganisation? Can creditors be deprived of the right of set-off either temporarily or permanently?
- •May the court change the rank (priority) of a creditor’s claim? If so, what are the grounds for doing so and how frequently does this occur?
- •Apart from employee-related claims, what are the major privileged and priority claims in liquidations and reorganisations? Which have priority over secured creditors?
- •What employee claims arise where employees’ contracts are terminated during a restructuring or liquidation? What are the procedures for termination? (Are employee claims as a whole increased where large numbers of employees’ contracts are terminated or where the business ceases operations?)
- •What remedies exist for pension-related claims against employers in insolvency or reorganisation proceedings and what priorities attach to such claims?
- •Where there are environmental problems, who is responsible for controlling the environmental problem and for remediating the damage caused? Are any of these liabilities imposed on the insolvency administrator personally, secured or unsecured creditors, the debtor’s officers and directors, or on third parties?
- •Do any liabilities of a debtor survive an insolvency or a reorganisation?
- •How and when are distributions made to creditors in liquidations and reorganisations?
- •What principal types of security are taken on immoveable (real) property?
- •What principal types of security are taken on moveable (personal) property?
- •What transactions can be annulled or set aside in liquidations and reorganisations and what are the grounds? Who can attack such transactions?
- •Are there any restrictions on claims by related parties or non-arm’s length creditors (including shareholders) against corporations in insolvency or reorganisation proceedings?
- •In which circumstances can a parent or affiliated corporation be responsible for the liabilities of subsidiaries or affiliates?
- •In proceedings involving a corporate group, are the proceedings by the parent and its subsidiaries combined for administrative purposes? May the assets and liabilities of the companies be pooled for distribution purposes?
- •Are foreign judgments or orders recognised and in what circumstances? Is your country a signatory to a treaty on international insolvency or on the recognition of foreign judgments?
- •Has the UNCITRAL Model Law on Cross-Border Insolvency been adopted or is it under consideration in your country?
- •How are foreign creditors dealt with in liquidations and reorganisations?
- •May assets be transferred from an administration in your country to an administration of the same company or another group company in another country?
- •What test is used in your jurisdiction to determine the COMI (centre of main interests) of a debtor company or group of companies? Is there a test for, or any experience with, determining the COMI of a corporate group of companies in your jurisdiction?
- •Does your country’s system provide for recognition of foreign insolvency proceedings and for cooperation between domestic and foreign courts and domestic and foreign insolvency administrators in cross-border insolvencies and restructurings? Have courts in your country refused to recognise foreign proceedings or to cooperate with foreign courts and, if so, on what grounds?
- •In cross-border cases, have the courts in your country entered into cross-border insolvency protocols or other arrangements to coordinate proceedings with courts in other countries? Have courts in your country communicated or held joint hearings with courts in other countries in cross-border cases? If so, with which other countries?
Click here to download the Securities Finance 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 15 jurisdictions are covered in this report:
Austria; Germany; India; Indonesia; Japan; Luxembourg; Monaco; North Macedonia; Norway; Qatar; Russia; South Africa; Switzerland; United Kingdom and United States.
QuestionsThe set of questions relating to the topic of securities finance and answered by the guide for each jurisdiction covered include:
Statutes and regulations- •What are the relevant statutes and regulations governing securities offerings? Which regulatory authority is primarily responsible for the administration of those rules?
- •What regulatory or stock exchange filings must be made in connection with a public offering of securities? What information must be included in such filings or made available to potential investors?
- •What are the steps of the registration and filing process? May an offering commence while regulatory review is in progress? How long does it typically take for the review process to be completed?
- •What publicity restrictions apply to a public offering of securities? Are there any restrictions on the ability of the underwriters to issue research reports?
- •Are there any special rules that differentiate between primary and secondary offerings? What are the liability issues for the seller of securities in a secondary offering?
- •What is the typical settlement process for sales of securities in a public offering?
- •Are there specific rules for the private placing of securities? What procedures must be implemented to effect a valid private placing?
- •What information must be made available to potential investors in connection with a private placing of securities?
- •Do restrictions apply to the transferability of securities acquired in a private placing? And are any mechanisms used to enhance the liquidity of securities sold in a private placing?
- •What specific domestic rules apply to offerings of securities outside your jurisdiction made by an issuer domiciled in your jurisdiction?
- •What special considerations apply to offerings of exchangeable or convertible securities, warrants or depositary shares or rights offerings?
- •What types of underwriting arrangements are commonly used?
- •What does the underwriting agreement typically provide with respect to indemnity, force majeure clauses, success fees and overallotment options?
- •What additional regulations apply to underwriting arrangements?
- •In which instances does an issuer of securities become subject to ongoing reporting obligations?
- •What information is a reporting company required to make available to the public?
- •What are the main rules prohibiting manipulative practices in securities offerings and secondary market transactions?
- •What measures are permitted in your jurisdiction to support the price of securities in connection with an offering?
- •What are the most common bases of liability for a securities transaction?
- •What are the main mechanisms for seeking remedies and sanctions for improper securities activities?
Click here to download the Securities litigation 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 10 jurisdictions are covered in this report:
Canada; England & Wales; Germany; Greece; India; Ireland; Korea; Nigeria; Switzerland; United States
QuestionsThe set of questions relating to the topic of securities litigation and answered by the guide for each jurisdiction covered include:
- •Describe the nature and extent of securities litigation in your jurisdiction.
- •What are the types of securities claim available to investors?
- •How do claims arising out of securities offerings differ from those based on secondary-market purchases of securities?
- •Are there differences in the claims available for publicly traded securities and for privately issued securities?
- •What are the elements of the main types of securities claim?
- •What is the standard for determining whether the offering documents or other statements by defendants are actionable?
- •What is the standard for determining whether a defendant has a culpable state of mind?
- •Is proof of reliance required, and are there any presumptions of reliance available to assist plaintiffs?
- •Is proof of causation required? How is causation established?
- •What elements present special issues in the securities litigation context?
- •What is the relevant limitation period? When does it begin to run? Can it be extended or shortened?
- •What defences present special issues in the securities litigation context?
- •What remedies are available? What is the measure of damages?
- •What is required to plead the claim adequately and proceed past the initial pleading?
- •What are the procedural mechanisms available to defendants to defeat, dispose of or narrow claims at an early stage of proceedings? What requirements must be satisfied to obtain each form of pre-trial resolution?
- •Are the principles of secondary, vicarious or “controlling person” liability recognised in your jurisdiction?
- •What are the special issues in your jurisdiction with respect to securities claims against directors?
- •What are the special issues in your jurisdiction with respect to securities claims against under-writers?
- •What are the special issues in your jurisdiction with respect to securities claims against auditors?
- •In what circumstances does your jurisdiction allow collective proceedings?
- •In collective proceedings, are claims opt in or opt out?
- •Can damages be determined on a class-wide basis, or must damages be assessed individually?
- •What is the involvement of the court in collective proceedings?
- •What role do regulators, professional bodies, and other third parties play in collective proceedings?
- •What options are available for plaintiffs to obtain funding for their claims?
- •Who is liable to pay costs in securities litigation? How are they calculated? Are there other procedural issues relevant to costs?
- •Are there special issues in your jurisdiction with respect to interests in investment funds? What claims are available to investors in a fund against the fund and its directors, and against an investment manager or adviser?
- •Are there special issues in your country in the structured finance context?
- •What are the requirements for foreign residents or for holders of securities purchased in other jurisdictions to bring a successful claim in your jurisdiction?
- •What are the requirements for investors to bring a successful claim in your jurisdiction against foreign defendants or issuers of securities traded on a foreign exchange?
- •How do courts in your jurisdiction deal with multiple securities claims in different jurisdictions?
- •What are the requirements in your jurisdiction to enforce foreign-court judgments relating to securities transactions?
- •What alternatives to litigation are available in your jurisdiction to redress losses on securities transactions? What are the advantages and disadvantages of arbitration as compared with litigation in your jurisdiction in securities disputes?
Click here to download the Ship Finance 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 19 jurisdictions are covered in this report:
Brazil; China; Cyprus; Germany; Israel; Italy; Japan; Liberia; Malta; Marshall Islands; Nigeria; Panama; Russia; Singapore; Sweden; Switzerland; United Arab Emirates; United Kingdom and United States.
QuestionsThe set of questions relating to the topic of ship finance and answered by the guide for each jurisdiction covered include:
Due diligence- •How does one demonstrate title to or legal ownership of a vessel registered under the laws of your jurisdiction?
- •How can one determine whether there are any liens recorded over a vessel?
- •How does one determine whether there are any security agreements, liens, charges or other encumbrances granted by a vessel owner or affiliated party who might be a borrower, guarantor or other credit party in connection with a vessel finance transaction?
- •Can one determine whether an obligor registered in your jurisdiction is duly organised and in good standing from a search of a public registry?
- •Can the shareholders or other equity interest holders, directors and officers or other authorised signatories of an obligor organised in your jurisdiction be determined from a search of a public registry? If not, how are these parties customarily identified?
- •What corporate or other entity action is necessary for an obligor to enter into or guarantee a debt obligation? When is action by the board of directors or other governing body required? Must shareholders approve a guarantee?
- •Must foreign lenders qualify to do business in your jurisdiction to extend credit to a borrower organised in your jurisdiction? Will foreign creditors be deemed resident as a consequence of making a loan or other extension of credit to an obligor within your jurisdiction?
- •Is central bank or other regulatory approval required for repayment of a loan in foreign currency?
- •Do usury laws limit the interest payable to a lender in respect of a vessel financing?
- •Are withholding taxes payable on principal or interest payments to non-resident lenders?
- •What vessels are eligible for registration under the flag of your country? Are offshore drilling rigs or mobile offshore drilling units considered vessels under the laws of your jurisdiction? What is the effect of registration?
- •Who may register a vessel in your jurisdiction?
- •Is there an alternate registry for international shipping operations?
- •What types of ship mortgages exist and what obligations may a ship mortgage secure? Can contingent obligations, including swap obligations, be secured? Are there standardised forms?
- •Give details of any required form for ship mortgages in your jurisdiction.
- •Who maintains the register of mortgages? What information does it contain and where are such filings to be made? What is the effect of registration?
- •Must the total amount of the mortgage be stated therein? Must the mortgage contain a maturity date? Must the underlying debt instrument be filed with or attached to the recorded mortgage?
- •Can a mortgage be registered in the name of an agent or trustee for the benefit of multiple lenders?
- •If the mortgagee is an agent or trustee for a lending syndicate, must any filings be made upon transfer of a portion of the underlying debt among existing lenders or to a new lender?
- •If the mortgagee transfers its interest to a new lender, agent or trustee, what filings are required? Is the mortgagor’s consent required?
- •What other maritime liens over vessels are recognised in your jurisdiction? Do these claims give rise to a right to arrest a vessel? In what circumstances may associated ships be arrested?
- •What maritime liens rank higher than a mortgage lien?
- •May non-mortgage liens be recorded over a vessel?
- •Will mortgages on “foreign” flag vessels be recognised in your jurisdiction? If so, do they share the same priority as those on vessels registered under the laws of your jurisdiction?
- •What is the procedure for enforcing a mortgage in your jurisdiction by way of foreclosure? Are interlocutory sales permitted? How long does a judicial sale take? What are the associated court costs and how are they calculated?
- •May a vessel be sold privately by a mortgagee? Will the sale discharge liens over the vessel?
- •Will the courts be your jurisdiction enforce mortgage provisions stipulating the appointment of a receiver on default under the mortgage?
- •What are the limitations on rights of self-help by a mortgagee?
- •What duties does a mortgagee owe to an owner or third-party creditors?
- •May finance leases or other charters be recorded over vessels flagged under the laws of your jurisdiction?
- •May finance leases be recharacterised by a court as a financing contract? If so, is there any procedure for protecting the lessor’s interest against third-party creditors?
- •How is a security interest created over earnings of a vessel, charter contracts, insurances, etc? How are these security interests perfected?
- •Must security interests against non-vessel collateral be registered to be enforceable? If so, where are such filings made?
- •How is a security interest over a deposit account established? How is a security interest perfected?
- •How are security interests in non-vessel collateral enforced?
- •How are share pledges for vessel financings established? Are share pledges or share charges common in your jurisdiction?
- •Is there a risk that a pledgee, before or after exercise of the share pledge, may be exposed to debts or other liabilities of the pledged company?
- •Is the income earned by the owners of vessels registered in your jurisdiction subject to domestic taxation? At what rate?
- •Is there an optional tonnage tax exempting vessel owners from tax on income?
- •What special tax incentives are available to shipowners registering vessels in your jurisdiction?
- •Are there any other noteworthy tax provisions specifically applicable to shipping, shipping income or ship finance?
- •Is there a general scheme of reorganisation or insolvency administration in your jurisdiction?
- •Will the courts of your jurisdiction respect the rulings of a foreign court presiding over reorganisation or liquidation proceedings?
- •Has your jurisdiction adopted the Model Law on Cross-Border Insolvency promulgated by the United Nations Commission on International Trade Law?
- •What is the order of priority among creditors? In what circumstances will creditors be required to disgorge payments from an insolvent company?
- •May a vessel owner provide security on behalf of other related or unrelated companies? What are the requirements for it to be enforceable?
- •Is there a law of fraudulent transfer that permits a third-party creditor to challenge, for example, the grant of a mortgage because of insolvency of the mortgagor or insufficient consideration received by the mortgagor in exchange for the grant of the mortgage?
- •How may a creditor petition the courts of your jurisdiction to declare a debtor bankrupt or compel liquidation of an insolvent obligor?
- •Has your jurisdiction adopted the Model Netting Act of the International Swaps and Derivatives Association (ISDA)? If not, may a swap provider exercise its close-out netting rights under an ISDA master agreement despite an obligor’s insolvency?
- •Are there any emerging trends or hot topics that may affect shipping finance law and regulation in your jurisdiction in the foreseeable future?
Click here to download the Shipbuilding 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 13 jurisdictions are covered in this report:
Brazil; Canada; China; England & Wales; Indonesia; Japan; Netherlands; Nigeria; Norway; Russia; Singapore; Turkey; United States.
QuestionsThe set of questions relating to the topic of shipbuilding and answered by the guide for each jurisdiction covered include:
- •Is the shipbuilding industry in your country open to foreign participation and investment? If it is open, please specify any restrictions on foreign participation.
- •Does the government retain ownership or control of any shipbuilding facilities and if so, why? Are there any plans for the government to divest itself of that participation or control?
- •Are there any statutory formalities in your jurisdiction that must be complied with in entering into a shipbuilding contract?
- •May the parties to a shipbuilding contract select the law to apply to the contract and is this choice of law upheld by the courts?
- •Is a shipbuilding contract regarded as a contract for the sale of goods, as a contract for the supply of workmanship and materials, or as a contract sui generis?
- •Is the hull number stated in the contract essential to the vessel’s description or is it a mere label?
- •Do “approximate” dimensions and description of the vessel allow the builder to deviate from the figure stated? If so, what latitude does the builder have?
- •May parties incorporate guaranteed standards of performance whose breach entitles the buyer to liquidated damages or rescission? Are there any trade standards for coating, noise and vibration in your jurisdiction, etc?
- •Do statutory provisions or previous cases in your jurisdiction give greater definition to contractual quality standards?
- •Where the builder contracts with the classification society to ensure that construction of the vessel leads to the buyer’s desired class notation, does the society owe a duty of care to the buyer, or can the buyer successfully sue the classification society, if certain defects in the vessel escape the attention of the class surveyors?
- •Have the flag-state authorities of your jurisdiction outsourced compliance with flag-state legislation to the classification societies? If so, to what extent?
- •Does your jurisdiction allow for registration of the vessel under construction in the local ships register in the name of the builder or the buyer? If this possibility exists, what are the legal consequences of this registration?
- •May the parties contract that title will pass from the builder to the buyer during construction? Will title pass gradually, upon the progress of the vessel’s construction, or at a certain stage? What is the earliest stage a buyer can obtain title to the vessel?
- •Will risk pass to the buyer with title, or will the risk remain with the builder until delivery and acceptance?
- •May a shipbuilder subcontract part or all of the contract and, if so, will this have a bearing on the builder's liability towards the buyer? Is there a custom to include a maker’s list of major suppliers and subcontractors in the contract?
- •Must the builder inform the buyer of any intention to have certain main items constructed in another country than that where the builder is located, or is it immaterial where and by whom certain performance of the contract is made?
- •Does the law in your country have different provisions for “fixed price” contracts and “labour and cost plus” contracts?
- •Does the builder have any statutory remedies available to charge the buyer for price increases of labour and materials despite the contract having a fixed price?
- •Can a buyer retract consent to an increase in price by arguing that consent was induced by economic duress?
- •May the builder and the buyer agree to exclude the buyer’s right to setoff, suspend payment or deduct certain amounts?
- •If the contract price is payable by the buyer in pre-delivery instalments, are there any rules in regard to the form and wording of refund guarantees? Is permission from any authority required for the builder to have the refund guarantees issued?
- •What formalities govern issuance of advance payment guarantees and parent company guarantees?
- •Can the builder or buyer create and register a mortgage over the vessel under construction to secure construction financing?
- •Do courts consider defective design to fall within the scope of poor workmanship for which the shipbuilder is liable under the warranty clause of the contract?
- •Are there any remedies available to third parties against the shipbuilder for defectiveness?
- •If the contract contains a liquidated damages clause or a penalty provision for late delivery or not meeting guaranteed performance criteria, must the agreed level of compensation represent a genuine link with the damages suffered? Can courts mitigate liquidated damages or penalties agreed in the contract and for what reasons?
- •If the building contract contains a liquidated damages provision, for example, for late delivery, is the buyer then precluded from claiming proven higher damages?
- •Are the parties free to design the force majeure clause of the contract?
- •Is certain “umbrella” insurance available in the market covering the builder and all subcontractors of a particular project for the builder's risks?
- •Will courts or arbitration tribunals in your jurisdiction be prepared to set terms if the parties are unable to reach agreement on alteration to key terms of the contract or a modification to the specification?
- •Does the buyer’s signature of a protocol of delivery and acceptance, stating that the buyer’s acceptance of the vessel shall be final and binding so far as conformity of the vessel to the contract and specifications is concerned preclude a subsequent claim for breach of performance warranties or for defects latent at the time of delivery?
- •Can suppliers or subcontractors of the shipbuilder exercise a lien over the vessel or work or equipment ready to be incorporated in the vessel for any unpaid invoices? Is there an implied term or statutory provision that at the time of delivery the vessel shall be free from all liens, charges and encumbrances?
- •Does a reservation of title by a subcontractor or supplier of materials and equipment survive affixing to or incorporation in the vessel under construction?
- •Assuming title to the vessel under construction vests with the builder, can third-party creditors of the builder obtain a security attachment or enforcement lien over the vessel or equipment to be incorporated in the vessel to secure their claim against the builder?
- •Can a subcontractor’s or manufacturer’s warranty be assigned to the buyer? Does legislation entitle the buyer to make a direct claim under the subcontractor’s or manufacturer’s warranty?
- •Where a builder defaults in the performance of the contract, is there a legal requirement to put the builder in default by sending an official notice before the buyer’s remedies begin to accrue? What remedies will be open to the buyer?
- •Are there any remedies available to the shipowner in the event of protracted failure to construct or continue construction by the shipbuilder apart from the contractual provisions?
- •Would a buyer’s contractual right to terminate for the builder’s insolvency be enforceable in your jurisdiction
- •What institution will most commonly be agreed on by the parties to decide disputes?
- •Would a buyer’s contractual right to take possession of the vessel under construction and continue construction survive the bankruptcy or moratorium of creditors of the builder?
- •In your jurisdiction do parties tend to incorporate an ADR clause in shipbuilding contracts?
- •Where the buyer defaults in the performance of the contract, what remedies will be available to the builder? What are the consequences of the builder’s cancellation of the contract?
- •Are any standard forms predominantly used in your jurisdiction as a starting point for drafting a shipbuilding contract?
- •What are the statutory requirements for assigning the contract to a third party?
Click here to download the Shipping 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 37 jurisdictions are covered in this report:
Australia; Brazil; Chile; China; Croatia; Cyprus; England & Wales; Estonia; France; Germany; Ghana; Hong Kong; India; Indonesia; Italy; Japan; Korea; Latvia; Liberia; Malaysia; Malta; Marshall Islands; Mexico; Netherlands; New Zealand; Nigeria; Norway; Panama; Peru; Singapore; Spain; Switzerland; Taiwan; Turkey; Ukraine; United States.
QuestionsThe set of questions relating to the topic of shipping and answered by the guide for each jurisdiction covered include:
Newbuilding contracts- •When does title in the ship pass from the shipbuilder to the shipowner? Can the parties agree to change when title will pass?
- •What formalities need to be complied with for the refund guarantee to be valid?
- •Are there any remedies available in local courts to compel delivery of the vessel when the yard refuses to do so?
- •Where the vessel is defective and damage results, would a claim lie in contract or under product liability against the shipbuilder at the suit of the shipowner; a purchaser from the original shipowner; or a third party that has sustained damage?
- •What vessels are eligible for registration under the flag of your country? Is it possible to register vessels under construction under the flag of your country?
- •Who may apply to register a ship in your jurisdiction?
- •What are the documentary requirements for registration?
- •Is dual registration and flagging out possible and what is the procedure?
- •Who maintains the register of mortgages and what information does it contain?
- •What limitation regime applies? What claims can be limited? Which parties can limit their liability?
- •What is the procedure for establishing limitation?
- •In what circumstances can the limit be broken? Has limitation been broken in your jurisdiction?
- •What limitation regime applies in your jurisdiction in respect of passenger and luggage claims?
- •Which body is the port state control agency? Under what authority does it operate?
- •What sanctions may the port state control inspector impose?
- •What is the appeal process against detention orders or fines?
- •Which are the approved classification societies?
- •In what circumstances can a classification society be held liable, if at all?
- •Can the state or local authority order wreck removal?
- •Which international conventions or protocols are in force in relation to collision, wreck removal, salvage and pollution?
- •Is there a mandatory local form of salvage agreement or is Lloyd’s standard form of salvage agreement acceptable? Who may carry out salvage operations?
- •Which international convention regarding the arrest of ships is in force in your jurisdiction?
- •In respect of what claims can a vessel be arrested? In what circumstances may associated ships be arrested? Can a bareboat (demise) chartered vessel be arrested for a claim against the bareboat charterer? Can a time-chartered vessel be arrested for a claim against a time-charterer?
- •Does your country recognise the concept of maritime liens and, if so, what claims give rise to maritime liens?
- •What is the test for wrongful arrest?
- •Can a bunker supplier arrest a vessel in connection with a claim for the price of bunkers supplied to that vessel pursuant to a contract with the charterer, rather than with the owner, of that vessel?
- •Will the arresting party have to provide security and in what form and amount?
- •How is the amount of security the court will order the arrested party to provide calculated and can this amount be reviewed subsequently? In what form must the security be provided? Can the amount of security exceed the value of the ship?
- •What formalities are required for the appointment of a lawyer to make the arrest application? Must a power of attorney or other documents be provided to the court? If so, what formalities must be followed with regard to these documents?
- •Who is responsible for the maintenance of the vessel while under arrest?
- •Must the arresting party pursue the claim on its merits in the courts of your country or is it possible to arrest simply to obtain security and then pursue proceedings on the merits elsewhere?
- •Apart from ship arrest, are there other forms of attachment order or injunctions available to obtain security?
- •Are orders for delivery up or preservation of evidence or property available?
- •Is it possible to arrest bunkers in your jurisdiction or to obtain an attachment order or injunction in respect of bunkers?
- •Who can apply for judicial sale of an arrested vessel?
- •What is the procedure for initiating and conducting judicial sale of a vessel? How long on average does it take for the judicial sale to be concluded following an application for sale? What are the court costs associated with the judicial sale? How are these costs calculated?
- •What is the order of priority of claims against the proceeds of sale?
- •What are the legal effects or consequences of judicial sale of a vessel?
- •Will judicial sale of a vessel in a foreign jurisdiction be recognised?
- •Is your country a signatory to the International Convention on Maritime Liens and Mortgages 1993?
- •Are the Hague Rules, Hague-Visby Rules, Hamburg Rules or some variation in force and have they been ratified or implemented without ratification? Has your state ratified, accepted, approved or acceded to the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea? When does carriage at sea begin and end for the purpose of application of such rules?
- •Are there conventions or domestic laws in force in respect of road, rail or air transport that apply to stages of the transport other than by sea under a combined transport or multi-modal bill of lading?
- •Who has title to sue on a bill of lading?
- •To what extent can the terms in a charter party be incorporated into the bill of lading? Is a jurisdiction or arbitration clause in a charter party, the terms of which are incorporated in the bill, binding on a third-party holder or endorsee of the bill?
- •Is the “demise” clause or identity of carrier clause recognised and binding?
- •Are shipowners liable for cargo damage where they are not the contractual carrier and what defences can they raise against such liability? In particular, can they rely on the terms of the bill of lading even though they are not contractual carriers?
- •What is the effect of deviation from a vessel’s route on contractual defences?
- •What liens can be exercised?
- •What liability do carriers incur for delivery of cargo without production of the bill of lading and can they limit such liability?
- •What are the responsibilities and liabilities of the shipper?
- •Is there an emission control area (ECA) in force in your domestic territorial waters?
- •What is the cap on the sulphur content of fuel oil used in your domestic territorial waters? How do the authorities enforce the regulatory requirements relating to low-sulphur fuel? What sanctions are available for non-compliance?
- •What domestic or international ship recycling regulations apply in your jurisdiction? Are there any ship recycling facilities in your jurisdiction?
- •Which courts exercise jurisdiction over maritime disputes?
- •In brief, what rules govern service of court proceedings on a defendant located out of the jurisdiction?
- •Is there a domestic arbitral institution with a panel of maritime arbitrators specialising in maritime arbitration?
- •What rules govern recognition and enforcement of foreign judgments and arbitral awards?
- •Are asymmetric jurisdiction and arbitration agreements (where the parties have differing rights to select the forum for dispute resolution) valid and enforceable in your jurisdiction?
- •What remedies are available if the claimants, in breach of a jurisdiction clause, issue proceedings elsewhere?
- •What remedies are there for the defendant to stop domestic proceedings that breach a clause providing for a foreign court or arbitral tribunal to have jurisdiction?
- •What time limits apply to claims? Is it possible to extend the time limit by agreement?
- •May courts or arbitral tribunals extend the time limits?
- •How does the Maritime Labour Convention apply in your jurisdiction and to vessels flying the flag of your jurisdiction?
- •Is it possible to seek relief from the strict enforcement of the legal rights and liabilities of the parties to a shipping contract where economic conditions have made contractual obligations more onerous to perform?
- •Are there any other noteworthy points relating to shipping in your jurisdiction not covered by any of the above?
Click here to download the Structured finance and securitisation 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 12 jurisdictions are covered in this report:
Australia; Bermuda; Canada; Denmark; France; Japan; Luxembourg; Portugal; Spain; Switzerland; Turkey; United Kingdom; United States.
QuestionsThe set of questions relating to the topic of Structured finance and securitisation and answered by the guide for each jurisdiction covered include:
General- •What legislation governs securitisation in your jurisdiction? Has your jurisdiction enacted a specific securitisation law?
- •Does your jurisdiction define which types of transactions constitute securitisations?
- •How large is the market for securitisations in your jurisdiction?
- •Which body has responsibility for the regulation of securitisation?
- •Must originators, servicers or issuers be licensed?
- •What will the regulator consider before granting, refusing or withdrawing authorisation?
- •What sanctions can the regulator impose?
- •What are the public disclosure requirements for issuance of a securitisation?
- •What are the ongoing public disclosure requirements following a securitisation issuance?
- •Outside licensing considerations, are there any restrictions on which entities can be originators?
- •What types of receivables or other assets can be securitised?
- •Are there any limitations on the classes of investors that can participate in an offering in a securitisation transaction?
- •Who may act as custodian, account bank and portfolio administrator or servicer for the securitised assets and the securities?
- •Are there any special considerations for securitisations involving receivables with a public-sector element?
- •Which forms can special purpose vehicles take in a securitisation transaction?
- •What is involved in forming the different types of SPVs in your jurisdiction?
- •Is it possible to stipulate which jurisdiction’s law applies to the assignment of receivables to the SPV?
- •May an SPV acquire new assets or transfer its assets after issuance of its securities? Under what conditions?
- •What are the registration requirements for a securitisation?
- •Must obligors be informed of the securitisation? How is notification effected?
- •What confidentiality and data protection measures are required to protect obligors in a securitisation? Is waiver of confidentiality possible?
- •Are there any rules regulating the relationship between credit rating agencies and issuers? What factors do ratings agencies focus on when rating securitised issuances?
- •What are the chief duties of directors and officers of SPVs? Must they be independent of the originator and owner of the SPV?
- •Are there regulations requiring originators and arrangers to retain some exposure to risk in a securitisation (skin-in-the-game)?
- •What types of collateral/security are typically granted to investors in a securitisation in your jurisdiction?
- •How is the interest of investors in a securitisation in the underlying security perfected in your jurisdiction?
- •How do investors enforce their security interest?
- •Is commingling risk relating to collections an issue in your jurisdiction?
- •What are the primary tax considerations for originators in your jurisdiction?
- •What are the primary tax considerations for issuers in your jurisdiction? What structures are used to avoid entity-level taxation of issuers?
- •What are the primary tax considerations for investors?
- •How are SPVs made bankruptcy-remote? (How does one isolate the SPV from the risk of being consolidated with the originator of the underlying financial assets and owner of the SPV in a bankruptcy of the originator?)
- •What factors would a court in your jurisdiction consider in making a determination of true sale of the underlying assets to the SPV (eg, absence of recourse for credit losses, arm’s length)?
- •What are the factors that a bankruptcy court would consider in deciding to consolidate the assets and liabilities of the originator and the SPV in your jurisdiction?
Click here to download the Telecoms and media 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 27 jurisdictions are covered in this report:
Brazil; Chile; China; Cyprus; Czech Republic; European Union; Greece; India; Indonesia; Ireland; Italy; Japan; Kenya; Korea; Malta; Mexico; Nigeria; Portugal; Russia; Serbia; Singapore; Switzerland; Taiwan; Thailand; United Arab Emirates; United Kingdom; United States
QuestionsThe set of questions relating to the topic of telecoms and media and answered by the guide for each jurisdiction covered include:
Communications policy- •Summarise the regulatory framework for the communications sector. Do any foreign ownership restrictions apply to communications services?
- •Describe the authorisation or licensing regime.
- •Do spectrum licences generally specify the permitted use or is permitted use (fully or partly) unrestricted? Is licensed spectrum tradable or assignable?
- •Which communications markets and segments are subject to ex-ante regulation? What remedies may be imposed?
- •Is there a legal basis for requiring structural or functional separation between an operator’s network and service activities? Has structural or functional separation been introduced or is it being contemplated?
- •Outline any universal service obligations. How is provision of these services financed?
- •Describe the number allocation scheme and number portability regime in your jurisdiction.
- •Are customer terms and conditions in the communications sector subject to specific rules?
- •Are there limits on an internet service provider’s freedom to control or prioritise the type or source of data that it delivers? Are there any other specific regulations or guidelines on net neutrality?
- •Is there specific legislation or regulation in place, and have there been any enforcement initiatives, relating to digital platforms?
- •Are there specific regulatory obligations applicable to NGA networks? Is there a government financial scheme to promote basic broadband or NGA broadband penetration?
- •Is there a specific data protection regime applicable to the communications sector?
- •Is there specific legislation or regulation in place concerning cybersecurity or network security in your jurisdiction?
- •Is there specific legislation or regulation in place, and have there been any enforcement initiatives in your jurisdiction, addressing the legal challenges raised by big data?
- •Are there any laws or regulations that require data to be stored locally in the jurisdiction?
- •Summarise the key emerging trends and hot topics in communications regulation in your jurisdiction.
- •Summarise the regulatory framework for the media sector in your jurisdiction.
- •Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?
- •What are the licensing requirements for broadcasting, including the fees payable and the time-scale for the necessary authorisations?
- •Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?
- •How is broadcast media advertising regulated? Is online advertising subject to the same regulation?
- •Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?
- •Is new media content and its delivery regulated differently from traditional broadcast media? How?
- •When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?
- •Does regulation restrict how broadcasters can use their spectrum?
- •Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?
- •Provide a summary of key emerging trends and hot topics in media regulation in your country.
- •Which body or bodies regulate the communications and media sectors? Is the communications regulator separate from the broadcasting or antitrust regulator? Are there mechanisms to avoid conflicting jurisdiction? Is there a specific mechanism to ensure the consistent application of competition and sectoral regulation?
- •How can decisions of the regulators be challenged and on what bases?
- •Describe the main competition law trends and key merger and antitrust decisions in the communications and media sectors in your jurisdiction over the past year.
Click here to download the trade and customs 2019 report, published by Getting the Deal Through.
Jurisdictions coveredThe following 17 jurisdictions are covered in this report:
Brazil; Chile; China; Colombia; Ecuador; Eurasian Economic Union; European Union; India; Japan; Jordan; Korea; Malaysia; Mexico; Turkey; Ukraine; United Arab Emirates; United States.
QuestionsThe set of questions relating to the topic of trade and customs and answered by the guide for each jurisdiction covered include:
Overviews- •What is the main domestic legislation as regards trade remedies?
- •In general terms what is your country’s attitude to international trade?
- •Which authority or authorities conduct trade defence investigations and impose trade remedies in your jurisdiction?
- •What is the procedure for domestic industry to start a trade remedies case in your jurisdiction? Can the regulator start an investigation ex officio?
- •What is the procedure for foreign exporters to defend a trade remedies case in your jurisdiction?
- •Are the WTO rules on trade remedies applied in national law?
- •What is the appeal procedure for an unfavourable trade remedies decision? Is appeal available for all decisions? How likely is an appeal to succeed?
- •How and when can an affected party seek a review of the duty or quota? What is the procedure and time frame for obtaining a refund of overcharged duties? Can interest be claimed?
- •What are the practical strategies for complying with an antidumping/countervailing/safeguard duty or quota?
- •Where are normal customs duty rates for your jurisdiction listed? Is there an exemption for low-value shipments, and if so, at what level? Is there a binding tariff information system or similar in place? Are there prior notification requirements for imports?
- •Where are special tariff rates, such as under free trade agreements or preferential tariffs, and countries that are given preference listed?
- •How can GSP treatment for a product be obtained or removed?
- •Is there a duty suspension regime in place? How can duty suspension be obtained?
- •Where can customs decisions be challenged in your jurisdiction? What are the procedures?
- •What government office handles complaints from domestic exporters against foreign trade barriers at the WTO or under other agreements?
- •What is the procedure for filing a complaint against a trade barrier?
- •What will the authority consider when deciding whether to begin an investigation?
- •What measures outside the WTO may the authority unilaterally take against a trade barrier?
- •What support does the government expect from the private sector to bring a WTO case?
- •What notable trade barriers other than retaliatory measures does your country impose on imports?
- •What general controls are imposed on exports?
- •Which authorities handle the controls?
- •Are separate controls imposed on specific products? Is a licence required to export such products? Give details.
- •Has your jurisdiction implemented the WCO's SAFE framework of standards? Does it have an AEO programme or similar?
- •Where is information on countries subject to export controls listed?
- •Does your jurisdiction have a scheme restricting or banning exports to named persons and institutions abroad?
- •What are the possible penalties for violation of export controls?
- •What government offices impose sanctions and embargoes?
- •What countries are currently the subject of sanctions or embargoes by your country?
- •Are individuals or specific companies subject to financial sanctions?
- •Describe any trade remedy measures, import or export controls not covered above that are particular to your jurisdiction.