LexisNexis Practical Guidance®

Click here to download the Advertising and marketing 2019 report, published by Getting the Deal Through.

The following 15 jurisdictions are covered in this report:

Australia; Austria; Brazil; Canada; France; Germany; Hong Kong; India; Ireland; Japan; Russia; Sweden; Switzerland; United Kingdom; United States

The set of questions relating to the topic of Adverting & marketing and answered by the guide for each jurisdiction covered include:

Legislation and regulation

• •What are the principal statutes regulating advertising generally?
• •Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent jurisdiction among regulators with responsibility for advertising handled?
• •What powers do the regulators have?
• •What are the current major concerns of regulators?
• •Give brief details of any issued industry codes of practice. What are the consequences for non-compliance?
• •Must advertisers register or obtain a licence?
• •May advertisers seek advisory opinions from the regulator? Must certain advertising receive clearance before publication or broadcast?

Private enforcement

• •What avenues are available for competitors to challenge advertising? What are the advantages and disadvantages of the different avenues for challenging a competitor’s advertising?
• •How may members of the public or consumer associations challenge advertising? Who has standing to bring a civil action or start a regulatory proceeding? On what grounds?
• •Which party bears the burden of proof?
• •What remedies may the courts or other adjudicators grant?
• •How long do proceedings normally take from start to conclusion?
• •How much do such proceedings typically cost? Are costs and legal fees recoverable?
• •What appeals are available from the decision of a court or other adjudicating body?

Misleading advertising

• •How is editorial content differentiated from advertising?
• •How does your law distinguish between “puffery” and advertising claims that require support?
• •What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?
• •Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?
• •Are there specific requirements for advertising claims based on the results of surveys?
• •What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?
• •Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?
• •Are there special rules for advertising depicting or demonstrating product performance?
• •Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief, or experience?
• •Are there special rules for advertising guarantees?
• •Are there special rules for claims about a product’s impact on the environment?
• •Are there special rules for describing something as free and for pricing or savings claims?
• •Are there special rules for claiming a product is new or improved?

Prohibited and controlled advertising

• •What products and services may not be advertised?
• •Are certain advertising methods prohibited?
• •What are the rules for advertising as regards minors and their protection?
• •Are there special rules for advertising credit or financial products?
• •Are there special rules for claims made about therapeutic goods and services?
• •Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?
• •What are the rules for advertising alcoholic beverages?
• •What are the rules for advertising tobacco products?
• •Are there special rules for advertising gambling?
• •What are the rules for advertising lotteries?
• •What are the requirements for advertising and offering promotional contests?
• •Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

Updates and trends

• •Briefly give details of any other notable special advertising regimes.

Social media

• •Are there any rules particular to your jurisdiction pertaining to the use of social media for advertising?
• •Have there been notable instances of advertisers being criticised for their use of social media?
• •Are there regulations governing privacy concerns when using social media?

Click here to download the Air transport 2020 report, published by Getting the Deal Through.

The following 23 jurisdictions are covered in this report:

Argentina; Bahamas; Belgium; Brazil; Canada; Chile; European Union; France; Germany; Greece; India; Ireland; Italy; Japan; Malta; Netherlands; Nigeria; Poland; Russia; Spain; Switzerland; United Kingdom; United States.

The 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?

Aviation operations

• •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?
• •How is access to the market for the provision of air transport services regulated?
• •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? What is it?
• •What requirements must a foreign air carrier satisfy in order to operate in your country?
• •Are there specific rules in place to ensure aviation services are offered to remote destinations when vital for the local economy?
• •How are charter services specifically regulated?
• •How are airfares regulated?
• •How is the operation of unmanned aircraft systems (drones) regulated?

Aircraft

• •Who is entitled to be mentioned in the aircraft register? What 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? 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? What are they?

Airports

• •Who owns the airports?
• •What system is there for the licensing of airports?
• •Do specific rules regulate the maintenance of aircraft? What are they?
• •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? What are they?
• •Who provides air traffic control services? And how are they regulated?

Liability and accidents

• •What rules apply 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 are they?
• •What system and procedures are in place for the investigation of air accidents?
• •Is there a mandatory accident and incident reporting system? How does it operate?

Competition law

• •Do sector-specific or general competition rules apply to aviation?
• •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?
• •How have the competition authorities regulated code-sharing and air-carrier joint ventures?
• •What types of remedies have been imposed to remedy concerns identified by the competition authorities?

Financial support and state aid

• •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? Is state aid regulated generally?
• •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? What are the main procedural steps for doing so?
• •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?

Miscellaneous

• •What rules regulate denied boarding, cancellation or delay?
• •What rules apply to the sale of package holiday products?
• •Is there any other aviation-specific consumer legislation?
• •What mandatory insurance requirements apply to the operation 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 Agribusiness 2020 report, published by Getting the Deal Through.

The following 11 jurisdictions are covered in this report:

Argentina; Australia; Brazil; Canada; Chile; China; India; Malaysia; Mexico; Netherlands; United States.

The set of questions relating to the topic of agribusiness and answered by the guide for each jurisdiction covered include:

Overview

• •What is the regulatory environment for meat and poultry?
• •What is the regulatory environment for all other human food?
• •What are the main non-governmental organisations and non-profit organisations in the agribusiness sector in your jurisdiction?

Land acquisition and use

• •Identify and summarise the enacted legislation addressing agricultural property transactions in your jurisdiction. Outline how farmland is typically held.
• •Outline any rules related to use of farmland for non-agricultural uses.
• •How is lending secured by farmland addressed in your jurisdiction? Do special rules apply for farm lending?
• •What special rules are important to agricultural lending in your jurisdiction?
• •Describe any rules relating to public control of farm property in your jurisdiction. What enacted legislation governs them?
• •Are there any restrictions on foreign ownership of farm property in your jurisdiction? What enacted legislation governs them?

Government programmes

• •Does the government provide agriculture support programmes to producers, processors or agriculture-related businesses and organisations? Outline the programmes and how they are generally accessed.
• •Are there any programmes addressing assistance or government incentives for investment by foreign ownership in agribusiness?

Food safety, certification programmes, animal safety and disease

• •List the main applicable enacted legislation for primary processors of live animals.
• •Describe food safety regulations for meat and poultry products, and all other food products in your jurisdiction.
• •What enforcement can take place in relation to food safety? What penalties may apply?
• •Describe any certification programmes and regulations for genetically modified foods and organic foods.
• •What are the food labelling requirements, including the applicable enacted legislation, enforcement and penalties?
• •List the main applicable enacted legislation regarding health of food animals, including transportation and disease outbreak and management.
• •What are the restrictions on the movement of animals within your country?
• •Where would one find the regulations related to livestock slaughtering?
• •Outline the regulatory regime for pesticides in your jurisdiction.

Business organisation

• •How are agricultural operations typically organised in your jurisdiction?
• •Outline any restrictions on foreign ownership of agricultural operations or businesses other than farming operations.

Agricultural workers, immigration, and health and safety

• •Describe any specific rules or laws governing the rights of workers or employees for agricultural operations.
• •How is farmworker immigration regulated in your jurisdiction?
• •Outline the health and safety regulations relating to farmworkers in your jurisdiction.

International trade

• •Describe the regulatory environment for animal product imports.
• •Describe the regulatory environment for all other food imports.
• •May tariffs, quotas or similar measures be put in place?
• •What treaties apply to the import and export of agricultural products in your jurisdiction?

Intellectual property

• •How are plant breeders’ property rights protected in your jurisdiction?
• •How is farmers’ access to crop varieties and plant technologies addressed in your jurisdiction?
• •What other intellectual property considerations apply to agribusiness in your jurisdiction?

Environmental issues

• •Describe the regulatory agencies that have a role in managing the environmental impact of agricultural production in your jurisdiction.
• •Describe how water and air pollution is regulated in relation to primary agriculture in your jurisdiction.
• •Describe how liquid and other waste is regulated in relation to primary agriculture in your jurisdiction.

Click here to download the Anti-corruption Regulation 2019 report, published by Getting the Deal Through.

The following 21 jurisdictions are covered in this report:

Armenia; Brazil; Canada; France; Germany; Greece; India; Ireland; Italy; Japan; Korea; Liechtenstein; Mexico; Norway; Singapore; Sweden; Switzerland; Turkey; United Arab Emirates; United Kingdom; United States

The set of questions relating to the topic of anti-corruption regulation and answered by the guide for each jurisdiction covered include:

• •To which international anti-corruption conventions is your country a signatory?
• •Identify and describe your national laws and regulations prohibiting bribery of foreign public officials (foreign bribery laws) and domestic public officials (domestic bribery laws).

Foreign bribery

• •Describe the elements of the law prohibiting bribery of a foreign public official.
• •How does your law define a foreign public official?
• •To what extent do your anti-bribery laws restrict providing foreign officials with gifts, travel expenses, meals or entertainment?
• •Do the laws and regulations permit facilitating or “grease” payments?
• •In what circumstances do the laws prohibit payments through intermediaries or third parties to foreign public officials?
• •Can both individuals and companies be held liable for bribery of a foreign official?
• •Can a successor entity be held liable for bribery of foreign officials by the target entity that occurred prior to the merger or acquisition?
• •Is there civil and criminal enforcement of your country’s foreign bribery laws?
• •What government agencies enforce the foreign bribery laws and regulations?
• •Is there a mechanism for companies to disclose violations in exchange for lesser penalties?
• •Can enforcement matters be resolved through plea agreements, settlement agreements, prosecutorial discretion or similar means without a trial?
• •Describe any recent shifts in the patterns of enforcement of the foreign bribery rules.
• •In what circumstances can foreign companies be prosecuted for foreign bribery?
• •What are the sanctions for individuals and companies violating the foreign bribery rules?
• •Identify and summarise recent landmark decisions or investigations involving foreign bribery.

Financial record keeping

• •What legal rules require accurate corporate books and records, effective internal company controls, periodic financial statements or external auditing?
• •To what extent must companies disclose violations of anti-bribery laws or associated accounting irregularities?
• •Are such laws used to prosecute domestic or foreign bribery?
• •What are the sanctions for violations of the accounting rules associated with the payment of bribes?
• •Do your country’s tax laws prohibit the deductibility of domestic or foreign bribes?

Domestic bribery

• •Describe the individual elements of the law prohibiting bribery of a domestic public official.
• •Does the law prohibit both the paying and receiving of a bribe?
• •How does your law define a public official and does that definition include employees of state-owned or state-controlled companies?
• •Can a public official participate in commercial activities while serving as a public official?
• •Describe any restrictions on providing domestic officials with gifts, travel expenses, meals or entertainment. Do the restrictions apply to both the providing and receiving of such benefits?
• •Are certain types of gifts and gratuities permissible under your domestic bribery laws and, if so, what types?
• •Does your country also prohibit private commercial bribery?
• •What are the sanctions for individuals and companies violating the domestic bribery rules?
• •Have the domestic bribery laws been enforced with respect to facilitating or “grease” payments?
• •Identify and summarise recent landmark decisions and investigations involving domestic bribery laws, including any investigations or decisions involving foreign companies.

Click here to download the Anti-money laundering 2019 report, published by Getting the Deal Through.

The 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.

The 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.

Money laundering

• •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?

AML requirements for covered institutions and individuals

• •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?

Civil claims

• •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.

International anti-money laundering efforts

• •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?

Click here to download the Appeals 2019 report, published by Getting the Deal Through.

The following 13 jurisdictions are covered in this report:

Argentina; Austria; Brazil; Bulgaria; Denmark; Germany; Japan; Philippines; Portugal; Spain; Switzerland; United Kingdom; United States

The set of questions relating to the topic of appeals and answered by the guide for each jurisdiction covered include:

• •Outline and explain the general structure of your country’s court system as it relates to the commercial appellate process.
• •Are there appellate courts that hear only civil matters?
• •Are appeals from administrative tribunals handled in the same way as appeals from trial courts?
• •Is there a separate appellate bar or other requirement for attorneys to be admitted before appellate courts?
• •If separate jurisdictions exist for particular territorial subdivisions or subject matters, explain their main differences as to commercial appeals.
• •What are the deadlines for filing an appeal in a commercial matter?
• •What are the key steps a litigant must take to commence an appeal?
• •How is the documentation for appeals prepared?
• •In commercial matters, may litigants appeal by right or is appellate review discretionary?
• •Can litigants appeal any ruling from a trial court, or are they limited to appealing only final judgments?
• •In a typical commercial dispute, must a litigant post a bond or provide security to appeal a trial court decision?
• •Are there special provisions for interlocutory appeals?
• •Are there special rules relating to injunctions or stays, whether entered in the trial court or on appeal?
• •If a litigant files an appeal in a commercial dispute, does it stay enforcement of the trial court judgment?
• •On an appeal from a commercial dispute, may the first-level appellate court consider the facts and law anew, or is its power to review limited?
• •If a party is dissatisfied with the outcome of the first-level appeal, is further appeal possible?
• •How long do appeals typically take from application to appeal to a final decision?
• •What is the briefing and argument process like in a typical commercial appeal?
• •Are appeals limited to the evidentiary record that was before the trial court, or can new evidence be introduced on appeal?
• •If litigants uncover new evidence of wrongdoing that they believe altered the outcome of a trial court judgment, can they introduce this evidence on appeal?
• •May parties raise new legal arguments on appeal?
• •What are the rules regarding attorneys’ fees and costs on appeal?
• •Can parties enter into a settlement agreement to vacate the trial court judgment after an appeal has been taken?
• •Are there any limits on settlement once an appeal has been taken?
• •May third parties fund appeals?
• •If litigation funding is permitted in an appeal, must funding sources be disclosed to the court or other parties to the litigation?
• •Must appellate courts in your country write decisions explaining their rulings? Can the courts designate the precedential effect of their decisions?
• •Will the appellate courts in your country consider submissions from non-parties?
• •What are the ordinary forms of relief that can be rendered by an appellate court in a civil dispute?

Click here to download the Arbitration 2019 report, published by Getting the Deal Through.

The following 36 jurisdictions are covered in this report:

Armenia; Austria; Brazil; Chile; China; Dominican Republic; Egypt; England & Wales; Finland; France; Germany; Ghana; Greece; Hong Kong; Hungary; India; Indonesia; Japan; Kenya; Korea; Liechtenstein; Mexico; Nigeria; Pakistan; Panama; Romania; Russia; Singapore; Slovakia; South Africa; Spain; Sweden; Switzerland; Taiwan; Turkey; United States

The set of questions relating to the topic of arbitration and answered by the guide for each jurisdiction covered include:

Laws and institutions

• •Is your jurisdiction a contracting state to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards? Since when has the Convention been in force? Were any declarations or notifications made under arts I, X and XI of the Convention? What other multilateral conventions relating to international commercial and investment arbitration is your country a party to?
• •Do bilateral investment treaties exist with other countries?
• •What are the primary domestic sources of law relating to domestic and foreign arbitral proceedings, and recognition and enforcement of awards?
• •Is your domestic arbitration law based on the UNCITRAL Model Law? What are the major differences between your domestic arbitration law and the UNCITRAL Model Law?
• •What are the mandatory domestic arbitration law provisions on procedure from which parties may not deviate?
• •Is there any rule in your domestic arbitration law that provides the arbitral tribunal with guidance as to which substantive law to apply to the merits of the dispute?
• •What are the most prominent arbitral institutions situated in your jurisdiction?

Arbitration agreement

• •Are there any types of disputes that are not arbitrable?
• •What formal and other requirements exist for an arbitration agreement?
• •In what circumstances is an arbitration agreement no longer enforceable?
• •In which instances can third parties or non-signatories be bound by an arbitration agreement?
• •Does your domestic arbitration law make any provisions with respect to third-party participation in arbitration, such as joinder or third-party notice?
• •Do courts and arbitral tribunals in your jurisdiction extend an arbitration agreement to non-signatory parent or subsidiary companies of a signatory company, provided that the non-signatory was somehow involved in the conclusion, performance or termination of the contract in dispute, under the “group of companies” doctrine?
• •What are the requirements for a valid multiparty arbitration agreement?

Constitution of arbitral tribunal

• •Are there any restrictions as to who may act as an arbitrator? Would any contractually stipulated requirement for arbitrators based on nationality, religion or gender be recognised by the courts in your jurisdiction?
• •Who regularly sit as arbitrators in your jurisdiction?
• •Failing prior agreement of the parties, what is the default mechanism for the appointment of arbitrators?
• •On what grounds and how can an arbitrator be challenged and replaced? Please discuss in particular the grounds for challenge and replacement, and the procedure, including challenge in court. Is there a tendency to apply or seek guidance from the IBA Guidelines on Conflicts of Interest in International Arbitration?
• •What is the relationship between parties and arbitrators? Please elaborate on the contractual relationship between parties and arbitrators, neutrality of party-appointed arbitrators, remuneration, and expenses of arbitrators.
• •To what extent are arbitrators immune from liability for their conduct in the course of the arbitration?

Jurisdiction and competence of arbitral tribunal

• •What is the procedure for disputes over jurisdiction if court proceedings are initiated despite an existing arbitration agreement, and what time limits exist for jurisdictional objections?
• •What is the procedure for disputes over jurisdiction of the arbitral tribunal once arbitral proceedings have been initiated, and what time limits exist for jurisdictional objections?

Arbitral proceedings

• •Failing prior agreement of the parties, what is the default mechanism for the place of arbitration and the language of the arbitral proceedings?
• •How are arbitral proceedings initiated?
• •Is a hearing required and what rules apply?
• •By what rules is the arbitral tribunal bound in establishing the facts of the case? What types of evidence are admitted and how is the taking of evidence conducted?
• •In what instances can the arbitral tribunal request assistance from a court, and in what instances may courts intervene?
• •Is confidentiality ensured?

Interim measures and sanctioning powers

• •What interim measures may be ordered by courts before and after arbitration proceedings have been initiated?
• •Does your domestic arbitration law or do the rules of the domestic arbitration institutions mentioned above provide for an emergency arbitrator prior to the constitution of the arbitral tribunal?
• •What interim measures may the arbitral tribunal order after it is constituted? In which instances can security for costs be ordered by an arbitral tribunal?
• •Pursuant to your domestic arbitration law or the rules of the domestic arbitration institutions mentioned above, is the arbitral tribunal competent to order sanctions against parties or their counsel who use “guerrilla tactics” in arbitration? May counsel be subject to sanctions by the arbitral tribunal or domestic arbitral institutions?

Awards

• •Failing party agreement, is it sufficient if decisions by the arbitral tribunal are made by a majority of all its members or is a unanimous vote required? What are the consequences for the award if an arbitrator dissents?
• •How does your domestic arbitration law deal with dissenting opinions?
• •What form and content requirements exist for an award?
• •Does the award have to be rendered within a certain time limit under your domestic arbitration law or under the rules of the domestic arbitration institutions mentioned above?
• •For what time limits is the date of the award decisive and for what time limits is the date of delivery of the award decisive?
• •What types of awards are possible and what types of relief may the arbitral tribunal grant?
• •By what other means than an award can proceedings be terminated?
• •How are the costs of the arbitral proceedings allocated in awards? What costs are recoverable?
• •May interest be awarded for principal claims and for costs, and at what rate?

Proceedings subsequent to issuance of award

• •Does the arbitral tribunal have the power to correct or interpret an award on its own or at the parties’ initiative? What time limits apply?
• •How and on what grounds can awards be challenged and set aside?
• •How many levels of appeal are there? How long does it generally take until a challenge is decided at each level? Approximately what costs are incurred at each level? How are costs apportioned among the parties?
• •What requirements exist for recognition and enforcement of domestic and foreign awards, what grounds exist for refusing recognition and enforcement, and what is the procedure?
• •Is there a limitation period for the enforcement of arbitral awards?
• •What is the attitude of domestic courts to the enforcement of foreign awards set aside by the courts at the place of arbitration?
• •Does your domestic arbitration legislation, case law or the rules of domestic arbitration institutions provide for the enforcement of orders by emergency arbitrators?
• •What costs are incurred in enforcing awards?
• •What dominant features of your judicial system might exert an influence on an arbitrator from your jurisdiction?
• •Are specific professional or ethical rules applicable to counsel in international arbitration in your country? Does best practice in your country reflect (or contradict) the IBA Guidelines on Party Representation in International Arbitration?
• •Is third-party funding of arbitral claims in your jurisdiction subject to regulatory restrictions?
• •What particularities exist in your jurisdiction that a foreign practitioner should be aware of?

Click here to download the Asset recovery 2020 report, published by Getting the Deal Through.

The following 18 jurisdictions are covered in this report:

Australia; Brazil; Cayman Islands; Cyprus; France; Greece; Hong Kong; Ireland; Italy Korea; Liechtenstein; Monaco; Nigeria; Serbia; Switzerland; Ukraine; United Kingdom; United States.

The 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?

Criminal asset recovery

• •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 and leasing 2019 report, published by Getting the Deal Through.

The 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

The 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?

Title transfer

• •How is title in an aircraft transferred?
• •What are the formalities for creating an enforceable transfer document for an aircraft?

Registration of aircraft ownership and lease interests

• •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.

Security

• •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?

Enforcement measures

• •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?

Taxes and payment restrictions

• •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?

Insurance and reinsurance

• •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 Aviation liability 2020 report, published by Getting the Deal Through.

The following 21 jurisdictions are covered in this report:

Argentina; Brazil; Canada; China; France; Germany; Greece; Indonesia; Italy; Latvia; Malaysia; Netherlands; New Zealand; Nigeria; Panama; Portugal; Spain; Switzerland; Turkey; United Kingdom; United States.

The set of questions relating to the topic of aviation liability and answered by the guide for each jurisdiction covered include:

Applicable treaties

• •To which major air law treaties related to carrier liability for passenger injury or death is your state a party?

International carriage — liability for passenger injury or death

• •Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?
• •Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?
• •In your state, who is considered to be a “carrier” under the Montreal and Warsaw Conventions?
• •How do the courts in your state interpret the conditions for air carrier liability — “accident”, “bodily injury”, “in the course of any of the operations of embarking or disembarking” — for passenger injury or death in art 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?
• •How do the courts in your state interpret and apply the “no negligence” defence in art 21 of the Montreal Convention, and the “all reasonable measures” defence in art 20 and the “wilful misconduct” standard of art 25 of the Warsaw Convention?
• •Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?
• •How do the courts of your state interpret each of the jurisdictions set forth in art 33 of the Montreal Convention and art 28 of the Warsaw Convention?
• •How do the courts of your state interpret and apply the 2-year period of limitations in art 35 of the Montreal Convention and art 29 of the Warsaw Convention?
• •How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

Domestic carriage — liability for passenger injury or death

• •What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?
• •What is the nature of, and conditions, for an air carrier’s liability?
• •Is there any limit of a carrier’s liability for personal injury or death?
• •What are the main defences available to the air carrier?
• •Is the air carrier’s liability for damages joint and several?
• •What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?
• •What is the time within which an action against an air carrier for injury or death must be filed?

Third-party actions

• •What are the applicable procedures to seek recovery from another party for contribution or indemnity?
• •What time limits apply?

Liability for ground damage

• •What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?
• •What is the nature of, and conditions for, an air carrier’s liability for ground damage?
• •Is there any limit of carriers’ liability for ground damage?
• •What are the main defences available to the air carrier in a claim for damage caused on the ground?

Liability for unruly passengers and terrorist events

• •What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?
• •What is the nature of, and conditions, for an air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event?
• •Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?
• •What are the main defences available to the air carrier in a claim for injury or death caused by an unruly passenger or a terrorist event?
• •Summarise the laws or regulations related to the liability for injuries or damage caused by drones.

Consumer protection and passenger rights

• •Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.

Liability of government entities providing services to carriers

• •What laws apply to the liability of the government entities that provide services to the air carrier?
• •What is the nature of, and conditions for, the government’s liability?
• •Are there any limitations to seeking recovery from the government entity?

Criminal proceedings

• •Can an air carrier be criminally responsible for an aviation accident?
• •What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?
• •Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?

Effect of carrier’s conditions of carriage and tariffs

• •What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?

Damages

• •What damages are recoverable for the personal injury of a passenger?
• •What damages are recoverable for the death of a passenger?

Accident investigation and family assistance

• •Who is responsible in your state for investigating aviation accidents?
• •Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.
• •Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?

Insurance requirements

• •Are there mandatory insurance requirements for air carriers?

Litigation procedure

• •Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.
• •What is the nature and extent of allowable discovery/disclosure?
• •Does the law of your state provide for any rules regarding preservation and spoliation of evidence?
• •Are attorneys’ fees and litigation costs recoverable?

Judgments and settlement

• •Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?
• •Is court approval required for settlements?
• •What is the effect of a settlement on the right to seek contribution or indemnity from another person or entity? Can it still be pursued?
• •Are there any financial sanctions, laws or regulations in your state that must be considered before an air carrier or its insurer may pay a judgment or settlement?

Click here to download the Banking Regulation 2019 report, published by Getting the Deal Through.

The 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.

The set of questions relating to the topic of banking regulation and answered by the guide for each jurisdiction covered include:

• •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 Cartel regulation 2019 report, published by Getting the Deal Through.

The following 37 jurisdictions are covered in this report:

Australia; Austria; Belgium; Brazil; Bulgaria; Brexit; Bulgaria; Canada; China; Colombia; Denmark; European Union; Finland; France; Germany; Greece; Hong Kong; India; Indonesia; Italy; Japan; Kenya; Korea; Malaysia; Mexico; Netherlands; Portugal; Russia; Singapore; Slovenia; Spain; Sweden; Switzerland; Taiwan; Turkey; Ukraine; United Kingdom; United States.

The set of questions relating to the topic of cartel regulation and answered by the guide for each jurisdiction covered include:

Legislation and institutions

• •What is the relevant legislation?
• •Which authority investigates cartel matters? Is there a separate prosecution authority? Are cartel matters adjudicated or determined by the enforcement agency, a separate tribunal or the courts?
• •Have there been any recent changes, or proposals for change, to the regime?
• •What is the substantive law on cartels in the jurisdiction?

Application of the law and jurisdictional reach

• •Are there any industry-specific infringements? Are there any industry-specific defences or anti-trust exemptions? Is there a defence or exemption for government-sanctioned activity or regulated conduct?
• •Does the law apply to individuals or corporations or both?
• •Does the regime extend to conduct that takes place outside the jurisdiction? If so, on what jurisdictional basis?
• •Is there an exemption or defence for conduct that only affects customers or other parties outside the jurisdiction?

Investigations

• •What are the typical steps in an investigation?
• •What investigative powers do the authorities have? Is court approval required to invoke these powers?

International cooperation

• •Is there cooperation with authorities in other jurisdictions? If so, what is the legal basis for, and extent of, cooperation?
• •Which jurisdictions have significant interplay with your jurisdiction in cross-border cases? If so, how does this affect the investigation, prosecution and penalising of cartel activity in cross-border cases in your jurisdiction?

Cartel proceedings

• •How is a cartel proceeding adjudicated or determined?
• •Which party has the burden of proof? What is the level of proof required?
• •Can an infringement be established by using circumstantial evidence without direct evidence of the actual agreement?
• •What is the appeal process?

Sanctions

• •What, if any, criminal sanctions are there for cartel activity?
• •What civil or administrative sanctions are there for cartel activity?
• •Do fining or sentencing principles or guidelines exist? If yes, are they binding on the adjudicator? If no, how are penalty levels normally established? What are the main aggravating and mitigating factors that are considered?
• •Is debarment from government procurement procedures automatic, available as a discretionary sanction, or not available in response to cartel infringements? If so, who is the decision-making authority and what is the usual time period?
• •Where possible sanctions for cartel activity include criminal and civil or administrative sanctions, can they be pursued in respect of the same conduct? If not, how is the choice of which sanction to pursue made?

Private rights of action

• •Are private damage claims available for direct and indirect purchasers? What level of damages and cost awards can be recovered?
• •Are class actions possible? If yes, what is the process for such cases? If not, what is the scope for representative or group actions and what is the process for such cases?

Cooperating parties

• •Is there an immunity programme? If yes, what are the basic elements of the programme? What is the importance of being “first in” to cooperate?
• •Is there a formal partial leniency programme for parties that cooperate after the immunity application? If yes, what are the basic elements of the programme? If not, to what extent can subsequent cooperating parties expect to receive favourable treatment?
• •What is the significance of being the second cooperating party? Is there an “immunity plus” or “amnesty plus” option?
• •Are there deadlines for initiating or completing an application for immunity or partial leniency? Are markers available and what are the time limits and conditions applicable to them?
• •What is the nature, level and timing of cooperation that is required or expected from an immunity applicant? Is there any difference in the requirements or expectations for subsequent cooperating parties?
• •What confidentiality protection is afforded to the immunity applicant? Is the same level of confidentiality protection applicable to subsequent cooperating parties? What information will become public during the proceedings and when?
• •Does the investigating or prosecuting authority have the ability to enter into a plea bargain, settlement or other binding resolution with a party to resolve liability and penalty for alleged cartel activity? What, if any, judicial or other oversight applies to such settlements?
• •When immunity or leniency is granted to a corporate defendant, how will its current and former employees be treated?
• •What are the practical steps for an immunity applicant or subsequent cooperating party in dealing with the enforcement agency?
• •Are there any ongoing or anticipated assessments or reviews of the immunity/leniency regime?

Defending a case

• •What information or evidence is disclosed to a defendant by the enforcement authorities?
• •May counsel represent employees under investigation in addition to the corporation that employs them? When should a present or past employee be advised to seek independent legal advice?
• •May counsel represent multiple corporate defendants? Does it depend on whether they are affiliated?
• •May a corporation pay the legal penalties imposed on its employees and their legal costs?
• •Are fines or other penalties tax-deductible? Are private damages awards tax-deductible?
• •Do the sanctions imposed on corporations or individuals take into account any penalties imposed in other jurisdictions? In private damage claims, is overlapping liability for damages in other jurisdictions taken into account?
• •What is the optimal way in which to get the fine down? Does a preexisting compliance programme, or compliance initiatives undertaken after the investigation has commenced, affect the level of the fine?

Click here to download the Cloud computing 2019 report, published by Getting the Deal Through.

The following 17 jurisdictions are covered in this report:

Argentina; Australia; Bangladesh; Belgium; Brazil; China; France; Germany; India; Japan; Korea; New Zealand; Poland; Sweden; Switzerland; United Kingdom; United States

The set of questions relating to the topic of cloud computing and answered by the guide for each jurisdiction covered include:

Market overview

• •What kinds of cloud computing transactions take place in your jurisdiction?
• •Who are the global international cloud providers active in your jurisdiction?
• •Name the local cloud providers established and active in your jurisdiction. What cloud services do they provide?
• •How well established is cloud computing? What is the size of the cloud computing market in your jurisdiction?
• •Are data and studies on the impact of cloud computing in your jurisdiction publicly available?

Policy

• •Does government policy encourage the development of your jurisdiction as a cloud computing centre for the domestic market or to provide cloud services to foreign customers?
• •Are there fiscal or customs incentives, development grants or other government incentives to promote cloud computing operations in your jurisdiction?

Legislation and regulation

• •Is cloud computing specifically recognised and provided for in your legal system? If so, how?
• •Does legislation or regulation directly and specifically prohibit, restrict or otherwise govern cloud computing, in or outside your jurisdiction?
• •What legislation or regulation may indirectly prohibit, restrict or otherwise govern cloud computing, in or outside your jurisdiction?
• •What are the consequences for breach of the laws directly or indirectly prohibiting, restricting or otherwise governing could computing?
• •What consumer protection measures apply to cloud computing in your jurisdiction?
• •Describe any sector-specific legislation or regulation that applies to cloud computing transactions in your jurisdiction.
• •Outline the insolvency laws that apply generally or specifically in relation to cloud computing.

Data protection/privacy legislation and regulation

• •Identify the principal data protection or privacy legislation applicable to cloud computing in your jurisdiction.

Cloud computing contracts

• •What forms of cloud computing contract are usually adopted in your jurisdiction, including cloud provider supply chains?
• •What are the typical terms of B2B public cloud computing contract in your jurisdiction covering governing law, jurisdiction, enforceability and cross-border issues, and dispute resolution?
• •What are the typical terms of B2B public cloud computing contract in your jurisdiction covering material terms, such as commercial terms of service and acceptable use, and variation?
• •What are the typical terms of a B2B public cloud computing contract in your jurisdiction covering data and confidentiality considerations?
• •What are the typical terms of a B2B public cloud computing contract in your jurisdiction covering liability, warranties and provision of service?
• •What are the typical terms of a B2B public cloud computing contract in your jurisdiction covering intellectual property rights (IPR) ownership in content and the consequences of infringement of third-party rights?
• •What are the typical terms of a B2B public cloud computing contract in your jurisdiction covering termination?
• •Identify any labour and employment law considerations that apply specifically to cloud computing in your jurisdiction.

Taxation

• •Outline the taxation rules that apply to the establishment and operation of cloud computing companies in your jurisdiction.
• •Outline the indirect taxes imposed in your jurisdiction that apply to the provision from within, or importing of cloud computing services from outside, your jurisdiction.

Recent cases

• •Identify and give details of any notable cases, or commercial, private, administrative or regulatory determinations within the past 3 years in your jurisdiction that have directly involved cloud computing as a business model.

Click here to download the Commercial contracts 2019 report, published by Getting the Deal Through.

The following 10 jurisdictions are covered in this report:

Australia; Canada; China; Germany; Japan; Mexico; Spain; Switzerland; United Kingdom; United States.

The 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?

Statutory controls and implied terms

• •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?

Limiting liability

• •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?

Payment terms

• •Are there statutory time limits for paying invoices? Is it possible to agree a different payment method?
• •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?

Termination

• •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?

Subcontracting, assignment and third-party rights

• •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?

Disputes

• •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?

Remedies

• •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 Competition compliance 2018 report, published by Getting the Deal Through.

The following 19 jurisdictions are covered in this report:

Australia; Brazil; China; France; Germany; Greece; India; Ireland; Italy; Japan; Korea; Malaysia; Russia; Spain; Sweden; Switzerland; Turkey; United Kingdom; United States

The set of questions relating to the topic of competition compliance and answered by the guide for each jurisdiction covered include:

General

• •What is the general attitude of business and the authorities to competition compliance?
• •Is there a government-approved standard for compliance programmes in your jurisdiction?
• •Is the compliance guidance generally applicable or do best practice and obligations depend on a company’s size and the sector of the economy it operates in?
• •If a company has a competition compliance programme in place, does it have any effect on sanctions?

Implementing a competition compliance programme

• •How does a company demonstrate its commitment to competition compliance?
• •What are the key features of a compliance programme regarding risk identification?
• •What are the key features of a compliance programme regarding risk assessment?
• •What are the key features of a compliance programme regarding risk mitigation?
• •What are the key features of a compliance programme regarding review?

Dealing with competitors

• •What types of arrangements should the company avoid entering into with its competitors?
• •What precautions can be taken to manage competition law risk when the company enters into an arrangement with a competitor?
• •What form must behavior take to constitute cartel?
• •Under what circumstances can cartels be exempted from sanctions?
• •Can the company exchange information with its competitors?

Leniency

• •Is a leniency programme available to companies or individuals who participate in a cartel in your jurisdiction?
• •Can a company apply for leniency for itself and its individual officers and employees?
• •Can a company reserve a place in line before a formal leniency application is ready?
• •If a company blows the whistle on other cartels, can it get any benefit?

Dealing with commercial partners (suppliers and customers)

• •What types of vertical arrangements between the company and its suppliers or customers are subject to competition enforcement?
• •Would the regulatory authority consider the above vertical arrangements per se illegal? If not, how do they analyse and decide on these arrangements?
• •Under what circumstances can vertical arrangements be exempted from sanctions?

How to behave as a market-dominant player

• •Which factors does your jurisdiction apply to determine if the company holds a dominant market position?
• •If the company holds a dominant market position, what forms of behaviour constitute abuse of market dominance?
• •Under what circumstances can abusing market dominance be exempted from sanctions or excluded from enforcement?

Competition compliance in mergers and acquisitions

• •Does the company need to obtain approval from the competition authority for mergers and acquisitions? Is it mandatory or voluntary to obtain approval before completion?
• •How long does it normally take to obtain approval?
• •If the company obtains approval, does it mean the authority has confirmed the terms in the documents will be considered compliant with competition law?
• •What are the consequences for failure to file, delay in filing and incomplete filing? Have there been any recent cases?

Investigation and settlement

• •Under which circumstances would the company and its officers or employees need separate legal representation? Do the authorities require separate legal representation during certain types of investigations?
• •For what types of infringement would the regulatory authority launch a dawn raid? Are there any specific procedural rules for dawn raids?
• •What are the company’s rights and obligations during a dawn raid?
• •Is there any mechanism to settle, or to make commitments to regulators, during an investigation?
• •What weight will the authorities place on companies implementing or amending a compliance programme in settlement negotiations?
• •Are corporate monitorships used in your jurisdiction?
• •Are agreed statements of facts in a settlement with the authorities automatically admissible as evidence in actions for private damages, including class actions or representative claims?
• •Can the company or an individual invoke legal privilege or privilege against self-incrimination in an investigation?
• •What confidentiality protection is afforded to the company or individual involved in competition investigations?
• •What are the penalties for refusing to cooperate with the authorities in an investigation?
• •Is there a duty to notify the regulator of competition infringements?
• •What are the limitation periods for competition infringements?

Miscellaneous

• •Are there any other regulated anticompetitive practices not mentioned above? Provide details.
• •Are there any proposals for competition law reform in your jurisdiction? If yes, what effects will it have on the company’s compliance?

Click here to download the Complex commercial litigation 2020 report, published by Getting the Deal Through.

The following 16 jurisdictions are covered in this report:

Austria; British Virgin Islands; Cyprus; Denmark; England and Wales; Gibraltar; India; Ireland; Japan; Netherlands; Nigeria; Romania; Switzerland; Turkey; United Arab Emirates; United States.

The set of questions relating to the topic of complex commercial litigation and answered by the guide for each jurisdiction covered include:

Background

• •How common is commercial litigation as a method of resolving high-value, complex disputes?
• •Please describe the culture and “market” for litigation. Do international parties regularly participate in disputes in the court system in your jurisdiction, or do the disputes typically tend to be regional?
• •What is the legal framework governing commercial litigation? Is your jurisdiction subject to civil code or common law? What practical implications does this have?

Bringing a claim-initial considerations

• •What key issues should a party consider before bringing a claim?
• •How is jurisdiction established?
• •Res judicata: is preclusion applicable, and if so, how?
• •In what circumstances will the courts apply foreign laws to determine issues being litigated before them?
• •What initial steps should a claimant consider to ensure that any eventual judgment is satisfied? Can a defendant take steps to make themselves “judgment proof”?
• •When is it appropriate for a claimant to consider obtaining an order freezing a defendant’s assets? What are the preconditions and other considerations?
• •Are there requirements for pre-action conduct and what are the consequences of non-compliance?
• •What other forms of interim relief can be sought?
• •Does the court require or expect parties to engage in ADR at the pre-action stage or later in the case? What are the consequences of failing to engage in ADR at these stages?
• •Are there different considerations for claims against natural persons as opposed to corporations?
• •Are any of the considerations different for class actions, multiparty or group litigations?
• •What restrictions are there on third parties funding the costs of the litigation or agreeing to pay adverse costs?

The claim

• •How are claims launched? How are the written pleadings structured, and how long do they tend to be? What documents need to be appended to the pleading?
• •How are claims served on foreign parties?
• •What are the key causes of action that typically arise in commercial litigation?
• •Under what circumstances can amendments to claims be made?
• •What remedies are available to a claimant in your jurisdiction?
• •What damages are recoverable?

Responding to the claim

• •What steps are open to a defendant in the early part of a case?
• •How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?
• •Under what circumstances may a defendant change a defence at a later stage in the proceedings?
• •How can a defendant establish the passing on or sharing of liability?
• •How can a defendant avoid trial?
• •What happens in the case of a no-show or if no defence is offered?
• •Can a defendant claim security for costs? If so, what form of security can be provided?

Progressing the case

• •What is the typical sequence of procedural steps in commercial litigation in this country?
• •Can additional parties be brought into a case after commencement?
• •Can proceedings be consolidated or split?
• •How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?
• •How does a court decide what judgments, remedies and orders it will issue?
• •How is witness, documentary and expert evidence dealt with?
• •How does the court deal with large volumes of commercial or technical evidence?
• •Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?
• •How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?
• •How long do the proceedings typically last, and in what circumstances can they be expedited?
• •What other steps can a party take during proceedings to achieve tactical advantage in a case?

Trial

• •How is the trial conducted for common types of commercial litigation? How long does the trial typically last?
• •Are jury trials the norm, and can they be denied?
• •How is confidentiality treated? Can all evidence be publicly accessed? How can sensitive commercial information be protected? Is public access granted to the courts?
• •How is media interest dealt with? Is the media ever ordered not to report on certain information?
• •How are monetary claims valued and proved?

Post-trial

• •Are there any particularly interesting features or tactical advantages of litigating in this country not addressed in any of the previous questions?
• •Are there any particular disadvantages of litigating in your jurisdiction, whether procedural or pragmatic?
• •Are there special considerations to be taken into account when defending a claim in your jurisdiction, that have not been addressed in the previous questions?

Click here to download the Construction 2020 report, published by Getting the Deal Through.

The following 15 jurisdictions are covered in this report:

Brazil; China; Colombia; Denmark; France; Germany; Ireland; Mexico; New Zealand; Singapore; Sweden; Switzerland; Taiwan; United Kingdom; United States.

The 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?
• •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 Corporate governance 2019 report, published by Getting the Deal Through.

The following 27 jurisdictions are covered in this report:

Bermuda; Brazil; Chile; China; France; Germany; Hungary; India; Italy; Japan; Kenya; Korea; Luxembourg; Malaysia; Mexico; Netherlands; Nigeria; North Macedonia; Norway; Singapore; Spain; Switzerland; Turkey; Ukraine; United Kingdom; United States; Vietnam

The set of questions relating to the topic of corporate governance and answered by the guide for each jurisdiction covered include:

Sources of corporate governance rules and practices

• •What are the primary sources of law, regulation and practice relating to corporate governance? Is it mandatory for listed companies to comply with listing rules or do they apply on a “comply or explain” basis?
• •What are the primary government agencies or other entities responsible for making such rules and enforcing them? Are there any well-known shareholder groups or proxy advisory firms whose views are often considered?

The rights and equitable treatment of shareholders

• •What powers do shareholders have to appoint or remove directors or require the board to pursue a particular course of action? What shareholder vote is required to elect or remove directors?
• •What decisions must be reserved to the shareholders? What matters are required to be subject to a non-binding shareholder vote?
• •To what extent are disproportionate voting rights or limits on the exercise of voting rights allowed?
• •Are there any special requirements for shareholders to participate in general meetings of shareholders or to vote? Can shareholders act by written consent without a meeting? Are virtual meetings of shareholders permitted?
• •Are shareholders able to require meetings of shareholders to be convened, resolutions and director nominations to be put to a shareholder vote against the wishes of the board, or the board to circulate statements by dissident shareholders?
• •Do controlling shareholders owe duties to the company or to non-controlling shareholders? If so, can an enforcement action be brought against controlling shareholders for breach of these duties be brought?
• •Can shareholders ever be held responsible for the acts or omissions of the company?

Corporate control

• •Are anti-takeover devices permitted?
• •May the board be permitted to issue new shares without shareholder approval? Do shareholders have pre-emptive rights to acquire newly issued shares?
• •Are restrictions on the transfer of fully paid shares permitted, and if so what restrictions are commonly adopted?
• •Are compulsory share repurchases allowed? Can they be made mandatory in certain circumstances?
• •Do shareholders have appraisal rights?

The responsibilities of the board (supervisory)

• •Is the predominant board structure for listed companies best categorised as one-tier or two-tier?
• •What are the board’s primary legal responsibilities?
• •Whom does the board represent and to whom does it owe legal duties?
• •Can an enforcement action against directors be brought by, or on behalf, of those to whom duties are owed?
• •Do the board’s duties include a care or prudence element?
• •To what extent do the duties of individual members of the board differ?
• •To what extent can the board delegate responsibilities to management, a board committee or board members, or other persons?
• •Is there a minimum number of “non-executive” or “independent” directors required by law, regulation or listing requirement? If so, what is the definition of “non-executive” and “independent” directors and how do their responsibilities differ from executive directors?
• •How is the size of the board determined? Are there minimum and maximum numbers of seats on the board? Who is authorised to make appointments to fill vacancies on the board or newly created directorships? Are there criteria that individual directors or the board as a whole must fulfill? Are there any disclosure requirements relating to board composition?
• •Is there any law, regulations, listing requirement or practice that requires the separation of the functions of board chairman and CEO? If flexibility on board leadership is allowed, what is generally recognised as best practice and what is the common practice?
• •What board committees are mandatory? What board committees are allowed? Are there mandatory requirements for committee composition?
• •Is a minimum or set number of board meetings per year required by law, regulation or listing requirement?
• •Is disclosure of board practices required by law, regulation or listing requirement?
• •How is remuneration of directors determined? Is there any law, regulation, listing requirement or practice that affects the remuneration of directors, the length of directors' service contracts, loans to directors or other transactions or compensatory arrangements between the company and any director?
• •How is the remuneration of the most senior management determined? Is there any law, regulation, listing requirement or practice that affects the remuneration of senior managers, loans to senior managers or other transactions or compensatory arrangements between the company and senior managers?
• •Is directors’ and officers’ liability insurance permitted or common practice? Can the company pay the premiums?
• •Are there any constraints on the company indemnifying directors and officers in respect of liabilities incurred in their professional capacity? If not, are such indemnities common?
• •To what extent may companies or shareholders preclude or limit the liability of directors and officers?
• •What role do employees have in corporate governance?
• •Is there any law, regulation, listing requirement or practice that requires evaluation of the board, its committees or directors? How regularly are such evaluations conducted and by whom? What do companies disclose in relation to such evaluations?

Disclosure and transparency

• •Are the corporate charter and by-laws of companies publicly available? If so, where?
• •What information must companies publicly disclose? How often must disclosure be made?

Hot topics

• •Do shareholders have an advisory or other vote regarding remuneration of directors and senior management? How frequently may they vote?
• •Do shareholders have the ability to nominate directors and have them included in shareholder meeting materials that are prepared and distributed at the company’s expense?
• •Do companies engage with shareholders? If so, who typically participated in the company’s engagement efforts and when does engagement typically occur?
• •Are companies required to provide disclosure with respect to corporate social responsibility matters?
• •Are companies required to disclose the “pay ratio” between the CEO’s annual total compensation and the annual total compensation of other workers?
• •Are companies required to disclose “gender pay gap” information? If so, how is the gender pay gap measured?

Click here to download the Data protection and privacy 2019 report, published by Getting the Deal Through.

The following 30 jurisdictions are covered in this report:

Argentina; Australia; Austria; Belgium; Brazil; Chile; China; Colombia; France; Germany; Greece; India; Ireland; Italy; Japan; Korea; Lithuania; Malta; Mexico; Portugal; Russia; Serbia; Singapore; Spain; Sweden; Switzerland; Taiwan; Turkey; United Kingdom; United States.

The set of questions relating to the topic of data protection and privacy and answered by the guide for each jurisdiction covered include:

Law and regulatory authority

• •Summarise the legislative framework for the protection of personally identifiable information (PII). Does your jurisdiction have a dedicated data protection law? Is the data protection law in your jurisdiction based on any international instruments on privacy or data protection?
• •Which authority is responsible for overseeing the data protection law? Describe the investigative powers of the authority.
• •Are there legal obligations on the data protection authority to cooperate with data protection authorities, or is there a mechanism to resolve different approaches?
• •Can breaches of data protection law lead to administrative sanctions or orders, or criminal penalties? How would such breaches be handled?

Scope

• •Does the data protection law cover all sectors and types of organisation or are some areas of activity outside its scope?
• •Does the data protection law cover interception of communications, electronic marketing or monitoring and surveillance of individuals? If not, list other relevant laws in this regard.
• •Identify any further laws or regulations that provide specific data protection rules for related areas (for example, rules on employee monitoring, e-health records, the use of social media or credit information)?
• •What forms of PII are covered by the law?

Extraterritoriality

• •Is the reach of the law limited to PII owners and processors of PII established or operating in the jurisdiction?

Covered uses of PII

• •Is all processing or use of PII covered? Is a distinction made between those who control or own PII and those who provide PII processing services to owners? Do owners’, controllers’ and processors’ duties differ?

Legitimate processing of PII

• •Does the law require that the holding of PII be legitimised on specific grounds, for example to meet the owner’s legal obligations or if the individual has provided consent??
• •Does the law impose more stringent rules for specific types of PII?

Data handling responsibilities of owners of PH

• •Does the law require owners of PII to notify individuals whose PII they hold? What must the notice contain and when must it be provided?
• •When is notice not required?
• •Must owners of PII offer individuals any degree of choice or control over the use of their information? In which circumstances?
• •Does the law impose standards in relation to the quality, currency and accuracy of PII?
• •Does the law restrict the amount of PII that may be held or the length of time it may be held?
• •Are the purposes for which PII can be used by owners restricted? Has the “finality principle” been adopted?
• •If the finality principle has been adopted, how far does the law allow for PII to be used for new purposes? Are there exceptions or exclusions from the finality principle?

Security

• •What security obligations are imposed on PII owners and service providers that process PII on their behalf?
• •Does the law include (general or sector-specific) obligations to notify the supervisory authority or individuals of data breaches? (If so, explain the nature and extent of the obligation and whether there is a threshold for notification to be mandatory.) If breach notification is not required by law, is it recommended by the supervisory authority? (If so, under what circumstances?)

Internal controls

• •Is the appointment of a data protection officer mandatory? (If the obligation depends on the context, give details.) What are the data protection officer’s legal responsibilities?
• •Are owners or processors of PII required to maintain any internal records or establish internal processes or documentation?
• •Are there any obligations in relation to new processing operations (for example, requirements to apply a privacy-by-design approach or carry out privacy impact assessments).

Registration and notification

• •Are PII owners or processors of PII required to register with the supervisory authority? Are there any exemptions?
• •What are the formalities for registration?
• •What are the penalties for a PII owner or processor for failure to make or maintain an entry on the register?
• •On what grounds may the supervisory authority refuse to allow an entry on the register?
• •Is the register publicly available? How can it be accessed?
• •Does an entry on the register have any specific legal effect?
• •Are there any other public transparency duties (for example, to make public statements as to the nature of the processing)?

Transfer and disclosure of PII

• •How does the law regulate the transfer of PII to entities that provide outsourced processing services?
• •Describe any specific restrictions on the disclosure of PII to other recipients.
• •Is the transfer of PII outside the jurisdiction restricted?
• •Does transfer of PII require notification to or authorisation from a supervisory authority??
• •If transfers outside the jurisdiction are subject to restriction or authorisation, do these apply equally to transfers to service providers and onwards transfers?

Rights of individuals

• •Do individuals have the right to see a copy of their personal information held by PII owners? Describe how this right can be exercised as well as any limitations to this right.
• •Do individuals have other substantive rights?
• •Are individuals entitled to monetary damages or compensation if they are affected by breaches of the law? Is actual damage required or is injury to feelings sufficient?
• •Are these rights exercisable through the judicial system or enforced by the supervisory authority or both?

Exemptions, derogations and restrictions

• •Does the law include any derogations, exclusions or limitations other than those already described? Describe the relevant provisions.

Supervision

• •Can PII owners appeal against orders of the supervisory authority to the courts?

Specific data processing

• •Describe any rules on the use of “cookies” or equivalent technology.
• •Describe any rules on marketing by e-mail, fax or telephone.
• •Describe any rules or regulator guidance on the use of cloud computing services.

Click here to download the Debt capital markets 2019 report, published by Getting the Deal Through.

The following 12 jurisdictions are covered in this report:

China; Germany; Greece; Netherlands; Portugal; Spain; Sweden; Switzerland; Thailand; Turkey; United Kingdom; United States

The 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 Dispute resolution 2019 report, published by Getting the Deal Through.

The following 33 jurisdictions are covered in this report:

Australia; Bermuda; Brazil; Canada-Quebec; Cayman Islands; China; Cyprus; Denmark; England & Wales; Germany; Ghana; Greece; Hong Kong; Hungary; India; Ireland; Japan; Kenya; Korea; Liechtenstein; Malta; Netherlands; Nigeria; Norway; Panama; Romania; Russia; Singapore; Sweden; Switzerland; United Arab Emirates; United States-California; United States-Federal Law.

The set of questions relating to the topic of dispute resolution and answered by the guide for each jurisdiction covered include:

Litigation

• •What is the structure of the civil court system?
• •What is the role of the judge and the jury in civil proceedings?
• •What are the time limits for bringing civil claims?
• •Are there any pre-action considerations the parties should take into account?
• •How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?
• •What is the typical procedure and timetable for a civil claim?
• •Can the parties control the procedure and the timetable?
• •Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?
• •Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?
• •Do parties exchange written evidence from witnesses and experts prior to trial?
• •How is evidence presented at trial? Do witnesses and experts give oral evidence?
• •What interim remedies are available?
• •What substantive remedies are available?
• •What means of enforcement are available?
• •Are court hearings held in public? Are court documents available to the public?
• •Does the court have power to order costs?
• •Are “no win, no fee” agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?
• •Is insurance available to cover all or part of a party’s legal costs?
• •May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?
• •On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?
• •What procedures exist for recognition and enforcement of foreign judgments?
• •Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?

Arbitration

• •Is the arbitration law based on the UNCITRAL Model Law?
• •What are the formal requirements for an enforceable arbitration agreement?
• •If the arbitration agreement and any relevant rules are silent on the matter, how many arbitrators will be appointed and how will they be appointed? Are there restrictions on the right to challenge the appointment of an arbitrator?
• •What are the options when choosing an arbitrator or arbitrators?
• •Does the domestic law contain substantive requirements for the procedure to be followed?
• •On what grounds can the court intervene during an arbitration?
• •Do arbitrators have powers to grant interim relief?
• •When and in what form must the award be delivered?
• •On what grounds can an award be appealed to the court?
• •What procedures exist for enforcement of foreign and domestic awards?
• •Can a successful party recover its costs?

Alternative dispute resolution

• •What types of ADR process are commonly used? Is a particular ADR process popular?
• •Is there a requirement for the parties to litigation or arbitration to consider ADR before or during proceedings? Can the court or tribunal compel the parties to participate in an ADR process?

Miscellaneous

• •Are there any particularly interesting features of the dispute resolution system not addressed in any of the previous questions?

Click here to download the Distribution and agency 2019 report, published by Getting the Deal Through.

The 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

The 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?

Local distributors and commercial agents

• •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?

Regulation of the distribution relationship

• •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 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?

Governing law and choice of forum

• •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 Domains and domain names 2019 report, published by Getting the Deal Through.

The following 11 jurisdictions are covered in this report:

Argentina; Australia; Belgium; Denmark; France; Germany; Japan; Netherlands; Russia; United Kingdom; United States

The set of questions relating to the topic of domains and domain names and answered by the guide for each jurisdiction covered include:

Registration and use of domain names at ccTLD registry

• •Which entity is responsible for registration of domain names in the country code top-level domain (ccTLD)?
• •How are domain names registered?
• •For how long is registration effective?
• •What is the cost of registration?
• •Are registered domain names transferable? If so, how? Can the use of a domain name be licensed?
• •What are the differences, if any, with registration in the ccTLD as compared with a generic top-level domain (gTLD)?
• •Can the registrant use a privacy service to hide its contact information?

Pre-litigation actions

• •Under what circumstances will a registrant’s privacy-protected contact information be disclosed? What processes are available to lift a registrant’s privacy shield?
• •Are third parties (such as trademark holders) notified of a domain name registration or attempt to register a domain name? If so, how? If not, how can third parties receive notice?
• •Is there a need to notify the domain name registrant before launching a complaint or initiating court proceedings?

Transfer or cancellation

• •What is the typical format for a cancellation or transfer action in court litigation (domains registered in either a ccTLD or a gTLD) and through ADR (ccTLD only)?
• •What is the typical format for a cancellation or transfer action in court litigation and through ADR?
• •What are the pros and cons of litigation and ADR in domain name disputes? What are the pros and cons of choosing a local forum to litigate a gTLD dispute compared with the ICANN ADR format for the gTLD?
• •What avenues of appeal are available?
• •Who is entitled to seek a remedy and under what conditions?
• •Who may act as defendant in an action to cancel or transfer a gTLD in local courts?
• •What is the burden of proof to establish infringement and obtain a remedy?
• •What remedies are available to a successful party in an infringement action?
• •Is injunctive relief available, preliminarily or permanently, and in what circumstances and under what conditions?
• •How is monetary relief calculated?
• •What criminal remedies exist, if any?
• •Is there a time frame within which an action must be initiated?
• •Can a registrant’s rights in a domain name expire because of non-use? Can a registrant be estopped from bringing an infringement action? In what circumstances?
• •What is the typical time frame for an infringement action at first instance and on appeal?
• •Is a case law overview available on procedural or substantive issues? Does the case law have a precedential value?
• •Can parties choose a panellist in an ADR procedure involving a ccTLD? Can they oppose an appointment?
• •What is the typical range of costs associated with an infringement action, including pre-litigation procedures, trial or ADR, and appeal? Can these costs be recovered?

Click here to download the Dominance 2019 report, published by Getting the Deal Through.

The following 35 jurisdictions are covered in this report:

Australia; Austria; Belgium; Brazil; Bulgaria; Canada; China; Colombia; Denmark; European Union; France; Germany; Hong Kong; India; Ireland; Italy; Japan; Korea; Luxembourg; Malaysia; Mexico; Morocco; Norway; Portugal; Russia; Saudi Arabia; Singapore; Slovenia; Spain; Sweden; Switzerland; Taiwan; Turkey; United Kingdom; United States

The set of questions relating to the topic of dominance and answered by the guide for each jurisdiction covered include:

General framework

• •What is the legal framework in your jurisdiction covering the behaviour of dominant firms?
• •How is dominance defined in the legislation and case law? What elements are taken into account when assessing dominance?
• •Is the purpose of the legislation and the underlying dominance standard strictly economic, or does it protect other interests?
• •Are there any sector-specific dominance rules, distinct from the generally applicable dominance provisions?
• •To whom do the dominance rules apply? Are any entities exempt?
• •Does the legislation only provide for the behavior of firms that are already dominant?
• •Is collective dominance covered by the legislation? How is it defined in the legislation and case law?
• •Does the legislation apply to dominant purchasers? Are there any differences compared with the application of the law to dominant suppliers?
• •How are relevant product and geographic markets defined? Are there market-share thresholds at which a company will be presumed to be dominant or not dominant?

Abuse of dominance

• •How is abuse of dominance defined and identified? What conduct is subject to a per se prohibition?
• •Does the concept of abuse cover both exploitative and exclusionary practices?
• •What link must be shown between dominance and abuse? May conduct by a dominant company also be abusive if it occurs on an adjacent market to the dominant market?
• •What defences may be raised to allegations of abuse of dominance? When exclusionary intent is shown, are defences an option?

Specific forms of abuse

• •Rebate schemes
• •Tying and bundling
• •Exclusive dealing
• •Predatory pricing
• •Price or margin squeezes
• •Refusals to deal and denied access to essential facilities
• •Predatory product design or a failure to disclose new technology
• •Price discrimination
• •Exploitative prices or terms of supply
• •Abuse of administrative or government process
• •Mergers and acquisitions as exclusionary practices
• •Other abuses

Enforcement proceedings

• •Which authorities are responsible for enforcement of the dominance rules and what powers of investigation do they have?
• •What sanctions and remedies may the authorities impose? May individuals be fined or sanctioned?
• •Can the competition enforcers impose sanctions directly or must they petition a court or other authority?
• •What is the most recent enforcement record in your jurisdiction?
• •Where a clause in a contract involving a dominant company is inconsistent with the legislation, is the clause (or the entire contract) invalidated?
• •To what extent is private enforcement possible? Does the legislation provide a basis for a court or authority to order a dominant firm to grant access, supply goods or services, conclude a contract or invalidate a provision or contract?
• •Do companies harmed by abusive practices have a claim for damages? Who adjudicates claims and how are damages calculated or assessed?
• •To what court may authority decisions finding an abuse be appealed?

Unilateral conduct

• •Are there any rules applying to the unilateral conduct of non-dominant firms?

Click here to download the E-commerce 2020 report, published by Getting the Deal Through.

The following 13 jurisdictions are covered in this report:

Brazil; Chile; China; Croatia; India; Indonesia; Japan; Malta; Norway; Poland; Russia; Switzerland; United Kingdom.

The set of questions relating to the topic of e-commerce and answered by the guide for each jurisdiction covered include:

General

• •How can the government’s attitude and approach to internet-related issues best be described?

Legislation

• •What legislation governs business on the internet?

Regulatory bodies

• •Which regulatory bodies are responsible for the regulation of e-commerce, data protection and internet access tariffs and charges?

Jurisdiction

• •What tests or rules are applied by the courts to determine the jurisdiction for internet-related transactions or disputes in cases where the defendant is resident or provides goods or services from outside the jurisdiction?

Establishing a business

• •What regulatory and procedural requirements govern the establishment of digital businesses in your jurisdiction? To what extent do these requirements and procedures differ from those governing the establishment of brick-and-mortar businesses?

Contracting on the internet

• •Is it possible to form and conclude contracts electronically? If so, how are contracts formed on the internet? Explain whether “click wrap” contracts are enforceable, and if so, what requirements need to be met?
• •Are there any particular laws that govern contracting on the internet? Do these distinguish between business-to-consumer and business-to-business contracts?
• •How does the law recognise or define digital or e-signatures?
• •Are there any data retention or software legacy requirements in relation to the formation of electronic contracts?

Breach

• •Are any special remedies available for the breach of electronic contracts?

Security

• •What measures must be taken by companies or ISPs to guarantee the security of internet transactions? Is encryption mandatory?
• •As regards encrypted communications, can any authorities require private keys to be made available? Are certification authorities permitted? Are they regulated and are there any laws as to their liability?

Electronic payments

• •Are there any rules, restrictions or other relevant considerations regarding the use of electronic payment systems in your jurisdiction?
• •Are there any rules or restrictions on the use of digital currencies?

Domain names

• •What procedures are in place to regulate the licensing of domain names? Is it possible to register a country-specific domain name without being a resident in the country?
• •Do domain names confer any additional rights beyond the rights that naturally vest in the domain name?
• •Will ownership of a trademark assist in challenging a “pirate” registration of a similar domain name?

Dispute resolution

• •How are domain name disputes resolved in your jurisdiction?

Advertising

• •What rules govern advertising on the internet?
• •How is online advertising defined? Could online editorial content be caught by the rules governing advertising?
• •Are there rules against misleading online advertising?
• •Are there any products or services that may not be advertised on the internet?
• •What is the liability of content providers and parties that merely host the content, such as ISPs? Can any other parties be liable?

Financial services

• •Is the advertising or selling of financial services products to consumers or to businesses via the internet regulated, and, if so, by whom and how?

Defamation

• •Are ISPs liable for content displayed on their sites? How can ISPs limit or exclude liability?
• •Can an ISP shut down a web page containing defamatory material without court authorisation?

Intellectual property

• •Can a website owner link to third-party websites without permission?
• •Can a website owner use third-party content on its website without permission from the third-party content provider? Could the potential consequences be civil in nature as well as criminal or regulatory?
• •Can a website owner exploit the software used for a website by licensing the software to third parties?
• •Are any liabilities incurred by links to third-party websites?
• •Is video content online regulated in the same way as TV content or is there a separate regime?
• •Do authorities has the power to carry out dawn raids and issue freezing injunctions in connection with IP infringement?
• •What civil remedies are available to IP owners? Do they include search orders and freezing injunctions?

Data protection and privacy

• •How does the law in your jurisdiction define “personal data”?
• •Do parties involved in the processing of personal data, such as website owners, have to register with any regulator to process personal data?
• •Could data protection laws and regulatory powers apply to organisations or individuals resident outside of the jurisdiction?
• •Is personal data processed on the basis of customer consent or other grounds? What is the commonly adopted mechanism for obtaining customer consent or establishing the other grounds for processing?
• •May a party involved in the processing of personal data, such as a website provider, sell personal data to third parties, such as personal data about website users?
• •If a website owner is intending to profile its customers base to carry out targeted advertising on its website or other websites visited by its customers, is this regulated in your jurisdiction?
• •Does your jurisdiction have data breach notification laws?
• •What precautionary measures should be taken to avoid data breaches and ensure cybersecurity?
• •Is cybersecurity insurance available and commonly purchased?
• •Does your jurisdiction recognise or regulate the “right to be forgotten”?
• •What regulations and guidance are there for email and other distance marketing?
• •What rights and remedies do individuals have in relation to other processing of their personal data? Are these rights limited to citizens or do they extend to foreign individuals?

Taxation

• •Is the sale of online products subject to taxation?
• •What tax liabilities ensue from placing servers outside operators’ home jurisdictions? Does the placing of servers within a jurisdiction by a company incorporated outside the jurisdiction expose that company to local taxes?
• •When and where should companies register for VAT or other sales taxes? How are domestic internet sales taxed?
• •If an offshore company is used to supply goods over the internet, how will returns be treated for tax purposes? What transfer-pricing problems might arise from customers returning goods to an onshore retail outlet of an offshore company set up to supply the goods?

Gambling

• •Is it permissible to operate an online betting or gaming business from the jurisdiction?
• •Are residents permitted to use online casinos and betting websites? Is any regulatory consent or age, credit or other verification required?

Outsourcing

• •What are the key legal and tax issues relevant in considering the provision of services on an outsourced basis?
• •What are the rights of employees who previously carried out services that have been outsourced? Is there any right to consultation or compensation, do the rules apply to all employees within the jurisdiction?

Online publishing

• •When would a website provider be liable for mistakes in information that it provides online? Can it avoid liability? Is it required or advised to post any notices in this regard?
• •If a website provider includes databases on its site, can it stop other people from using or reproducing data from those databases?

Dispute resolution

• •Are there any specialist courts or other venues in your jurisdiction which deal with online/digital issues and disputes?
• •What alternative dispute resolution (ADR) methods are available for online/digital disputes? How common is ADR for online/digital disputes in your jurisdiction?]

Click here to download the Electricity regulation 2020 report, published by Getting the Deal Through.

The following 22 jurisdictions are covered in this report:

Angola; Argentina; Australia; Belgium; Brazil; Croatia; Ecuador; Ghana; India; Ireland; Italy; Japan; Mexico; Netherlands; Nigeria; Panama; Portugal; South Africa; Spain; Turkey; United Kingdom; United States.

The 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?

Regulation of electricity utilities-power generation

• •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?

Regulation of utilities — transmission

• •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?

Regulation of electricity utilities — distribution

• •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?

Regulation of electricity utilities — sales of power

• •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?

Regulatory authorities

• •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?

Acquisition and merger control — competition

• •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?

International

• •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?

Transactions between affiliates

• •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.

The following 12 jurisdictions are covered in this report:

Brazil; China; Denmark; Dominican Republic; Germany; Korea; Mexico; Portugal; Spain; Turkey; United Kingdom; United States.

The set of questions relating to the topic of environment and answered by the guide for each jurisdiction covered include:

• •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.

The following 11 jurisdictions are covered in this report:

Australia; China; Germany; Hong Kong; Japan; Mexico; Norway; Spain; Switzerland; United Kingdom; United States

The 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?
• •What categories of equity derivatives transactions must be centrally cleared and what rules govern clearing?
• •What categories of equity derivatives must be exchange-traded and what rules govern trading?
• •Describe common collateral arrangements for listed, cleared and uncleared equity derivatives transactions.
• •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?

Click here to download the executive compensation and employee benefits 2019 report, published by Getting the Deal Through.

The following 14 jurisdictions are covered in this report:

Australia; Belgium; Brazil; Chile; Costa Rica; Denmark; France; Germany; Italy; Japan; Russia; Spain; Switzerland; United States.

The set of questions relating to the topic of executive compensation and employee benefits and answered by the guide for each jurisdiction covered include:

Sources of rules and practice

• •Provide an overview of the primary sources of law, regulation and practice that govern or affect executive compensation arrangements or employee benefits.
• •What are the primary government agencies or other entities responsible for enforcing these rules?

Governance

• •Are any types of compensation or benefits generally subject to specific corporate governance requirements or approval by shareholders or government?
• •Under what circumstances does the establishment or change of an executive compensation or benefit arrangement generally require consultation with a union, works council or similar body?
• •Are any types of compensation or benefit arrangements prohibited either generally or with senior management?
• •What rules apply to compensation of non-executive directors?

Disclosure

• •Must any aspects of an executive’s compensation be publicly disclosed or disclosed to the government?

Employment agreements

• •Are employment agreements required or prevalent? If so, what provisions are common?

Incentive compensation

• •What are the prevalent types and structures of incentive compensation? Do they vary by level or type of organisation?
• •Are there limits generally on the amount or structure of incentive compensation? Are there limits that adversely affect the tax treatment of the employer or the executive?
• •Is deferral and vesting of incentive awards permissible? Are there limits on the length or type of vesting and deferral provisions?
• •Can it be held that recurrent discretionary incentive compensation has become a mandatory contractual entitlement?
• •Does the type or amount of incentive compensation awarded to an executive potentially affect the compensation that must be awarded to other executives or employees?
• •Is it permissible to require repayment of incentive compensation under certain circumstances? Are these circumstances under which such repayment is mandatory?

Equity-based compensation

• •What are the prevalent forms of equity compensation awards in your jurisdiction? What is a typical vesting period?
• •Are there forms of equity compensation that are tax advantageous or disadvantageous to employees or employers?
• •Does equity-based compensation require registration or notice? Are exemptions, or simplified or expedited procedures available?
• •Are there withholding tax requirements for equity-based awards?
• •Are inter-company chargeback agreements between a nonlocal parent company and local affiliate common? What issues arise?
• •Are employee stock purchase plans prevalent or available? If so, are there any frequently encountered issues with such arrangements?

Employee benefits

• •Are there any mandatory benefits? Are there limits on discontinuing voluntary benefits that have been provided?
• •What types of employee benefits are prevalent for executives? Are there tax or other financial incentives or disincentives for any employee benefit arrangements?

Termination of employment

• •Are there prohibitions on terminating executives? Are there required notice periods? May executives be dismissed without cause?
• •Are there statutory or mandatory minimum severance requirements in your jurisdiction? Are there any other mandatory, post-employment benefits?
• •What executive severance payment level is typical?
• •Are there limits on dismissal for “cause”? Are there any statutory limits on “constructive dismissal” or “good reason”? How are “cause” or “constructive dismissal” defined?
• •Are “gardening leave” provisions typically used in employment terminations?
• •Is a general waiver or release of claims on termination of an executive’s employment normally permitted? Are there any restrictions or requirements for the waiver or release to be enforceable?

Post-employment restrictive covenants

• •What post-employment restrictive covenants are prevalent? What are the typical restricted periods?
• •Are there limits on, or requirements for, post-employment restrictive covenants to be enforceable? Will a court typically modify a covenant to make it enforceable?
• •What remedies can the employer seek for breach of postemployment restrictive covenants?

Pension and other retirement benefits

• •Are there any required pension or other retirement benefits? Are there limits on discontinuing voluntary benefits that have been provided?
• •What types of pension or other retirement benefits are prevalent for executives? Are there tax or other financial incentives or disincentives for any employee benefit arrangements?
• •May executives receive supplemental retirement benefits?

Indemnification

• •May an executive be indemnified or insured for claims related to actions taken as an executive, officer or director?

Change in control

• •Under what circumstances will an asset sale in your jurisdiction result in an automatic transfer of benefit obligations to the acquirer?
• •Is it customary to provide for executive retention or related arrangements in connection with a change in control?
• •Are there limits or prohibitions on the acceleration of vesting or exercisability of compensation in a change in control? Are there restrictions on “cashing-out” equity awards?

Multi-jurisdictional matters

• •Do foreign exchange controls rules apply to remittance of funds, or the transfer of employer equity or equity-based awards to executives?
• •Must employment agreements, employee compensation or benefit plans, or award agreements be translated into the local language?
• •Are there prohibitions on tax gross-up, tax indemnity or tax equalisation payments?
• •Are choice-of-law provisions in executive employment contracts generally respected?

Click here download the Financial services compliance 2019 report, published by Getting the Deal Through.

The following 13 jurisdictions are covered in this report:

Australia ; Brazil; Canada; Germany; Hong Kong; Italy; Japan; Portugal; Singapore; Spain; Switzerland; United Kingdom; United States

The set of questions relating to the topic of anti-money laundering and answered by the guide for each jurisdiction covered include:

• •What national authorities regulate the provision of financial products and services?
• •What activities does each national financial services authority regulate?
• •What products does each national financial services authority regulate?
• •What is the registration or authorization regime applicable to financial services firms and authorized individuals associated necessary, and how is it affected?
• •What statue or other legal basis is the source of each regulatory authority’s jurisdiction?
• •what principal laws and financial services authority rules apply to the activities of financial services firms and their associated persons?
• •What additional requirements apply to financial services firms and authorized persons, such as those imposed by self-regulatory bodies, designated professional bodies or other financial services organisations?
• •What powers do national financial services firms and authorized persons, such as those imposed by self-regulatory bodies, designated professional bodies or other financial services organisations?
• •What powers do national financial services authorities have to examine and investigate compliance? What enforcement powers do they have for compliance breaches? How is compliance examined and enforced in practice?
• •What are the power of national financial services authorities to discipline or punish infractions?
• •Which other bodies are responsible for criminal enforcement relating to compliance violations?
• •What tribunals adjudicate criminal and civil financial services infractions?
• •What are typical sanctions imposed against firms and individuals for violations? Are settlements common?
• •What requirements exist concerning the nature and content of compliance and supervisory programmes for each type of regulated entity?
• •How important are gatekeepers in the regulatory structure?
• •What are the duties of directors, and what standard of care applies to the boards of directors of financial services firms?
• •When are directors typically held individually accountable for the activities of financial services firms?
• •Do private rights of action apply to violations of national financial services authority rules and regulations?
• •What is the standard of care that applies to each type of financial services firm and authorized personal when dealing what retail customers?
• •Does the standard of care differ based on the sophistication of the customer or counterparty?
• •How are rules that affect the financial services industry adopted? Is there a consultation process?
• •How do financial services authorities approach cross-border issues?
• •What role does international standard setting play in the rules and standards implemented in your jurisdiction?

Click here download the Financial services litigation 2019 report, published by Getting the Deal Through.

The following 11 jurisdictions are covered in this report:

Australia; Brazil; China; Greece; Ireland; Korea; South Africa; Switzerland; United Arab Emirates; United Kingdom; United States

The 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?

Procedure

• •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?

Interaction with regulatory regime

• •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?

Click here to download the Fintech 2020 report, published by Getting the Deal Through.

The following 23 jurisdictions are covered in this report:

Austria; Belgium; China; Czech Republic; Germany; Gibraltar; Hong Kong; India; Indonesia; Ireland; Japan; Kenya; Korea; Netherlands; Singapore; South Africa; Spain; Sweden; Switzerland; Taiwan; United Arab Emirates; United Kingdom; United States.

The set of questions relating to the topic of fintech and answered by the guide for each jurisdiction covered include:

Fintech landscape and initiatives

• •What is the general state of fintech innovation in your jurisdiction?
• •Do government bodies or regulators provide any support specific to financial innovation? If so, what are the key benefits of such support?

Financial regulation

• •Which bodies regulate the provision of fintech products and services?
• •Which activities trigger a licensing requirement in your jurisdiction?
• •Is consumer lending regulated in your jurisdiction?
• •Are there restrictions on trading loans in the secondary market in your jurisdiction?
• •Describe the regulatory regime for collective investment schemes and whether fintech companies providing alternative finance products or services would fall within its scope.
• •Are managers of alternative investment funds regulated?
• •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 invoice trading in your jurisdiction.
• •Are payment services regulated in your jurisdiction?
• •Are there any laws or regulations introduced to promote competition that require financial institutions to make customer or product data available to third parties?
• •Do fintech companies that sell or market insurance products in your jurisdiction need to be regulated?
• •Are there any restrictions on providing credit references or credit information services in your jurisdiction?

Cross-border regulation

• •Can regulated activities be passported into your jurisdiction?
• •Can fintech companies obtain a licence to provide financial services in your jurisdiction without establishing a local presence?

Sales and marketing

• •What restrictions apply to the sales and marketing of financial services and products in your jurisdiction?

Change of control

• •Describe any rules relating to notification or consent requirements if a regulated business changes control

Financial crime

• •Are fintech companies 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?

Peer-to-peer and marketplace lending

• •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? Is it possible to assign these loans without informing the borrower?
• •Are securitisation transactions subject to risk retention requirements?
• •Is a special purpose company used to purchase and securitise peer-to-peer or marketplace loans subject to a duty of confidentiality or data protection laws regarding information relating to the borrowers?

Artificial intelligence, distributed ledger technology and cryptoassets

• •Are there rules or regulations governing the use of artificial intelligence, including in relation to robo-advice?
• •Are there rules or regulations governing the use of distributed ledger technology or blockchains?
• •Are there rules or regulations governing (whether specifically or indirectly) the use of cryptoassets, including digital currencies, digital wallets and e-money?
• •Are there rules or regulations governing the operation of digital currency exchanges or brokerages?
• •Are there rules or regulations governing initial coin offerings (ICOs) or token generation events?

Data protection and cybersecurity

• •What rules and regulations govern the processing and transfer (domestic and cross-border) of data relating to fintech products and services?
• •What cybersecurity regulations or standards apply to fintech businesses?

Outsourcing and cloud computing

• •Are there legal requirements or regulatory guidance with respect to the outsourcing by a financial services company of a material aspect of its business?
• •Are there legal requirements or regulatory guidance with respect to the use of cloud computing in the financial services industry?

Intellectual property rights

• •Which intellectual property rights are available to protect software, and how do you obtain those rights?
• •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?
• •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 fintech businesses ensure they do not infringe existing brands?
• •What remedies are available to individuals or companies whose intellectual property rights have been infringed?

Competition

• •Are there any specific competition issues that exist with respect to fintech companies in your jurisdiction?

Tax

• •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 new or proposed tax laws or guidance that could significantly increase tax or administrative costs for fintech companies in your jurisdiction?

Immigration

• •What immigration schemes are available for fintech businesses to recruit skilled staff from abroad? Are there any special regimes specific to the technology or financial sectors?

Click here to download the franchise 2020 report, published by Getting the Deal Through.

The following 22 jurisdictions are covered in this report:

Australia; Canada; Chile; Finland; France; Germany; Indonesia; Japan; Korea; Malaysia; Mexico; Netherlands; New Zealand; Norway; Russia; South Africa; Switzerland; Thailand; Ukraine; United Arab Emirates; United Kingdom; United States.

The set of questions relating to the topic of franchise and answered by the guide for each jurisdiction covered include:

Overview

• •What forms of business entities are relevant to the typical franchisor?
• •What laws and agencies govern the formation of business entities?
• •Provide an overview of the requirements for forming and maintaining a business entity.
• •What restrictions apply to foreign business entities and foreign investment?
• •Briefly describe the aspects of the tax system relevant to franchisors. How are foreign businesses and individuals taxed?
• •Are there any relevant labour and employment considerations for typical franchisors? (What is the risk that a franchisee could be deemed an employee of the franchisor? What can be done to reduce this risk? What is the risk that employees of a franchisee could be deemed employees of the franchisor? What can be done to reduce this risk?)
• •How are trademarks and know-how protected?
• •What are the relevant aspects of the real estate market and real estate law?
• •How widespread is franchising in your jurisdiction? In which sectors is franchising common?

Laws and agencies that regulate the offer and sale of franchises

• •What is the legal definition of a franchise?
• •Which laws and government agencies regulate the offer and sale of franchises?
• •Describe the relevant requirements of these laws and agencies.
• •What are the exemptions and exclusions from any franchise laws and regulations?
• •Does any law or regulation create a requirement that must be met before a franchisor may offer franchises?
• •Are there any laws, regulations or government policies that restrict the manner in which a franchisor recruits franchisees or selects its or its franchisees’ suppliers?
• •What is the compliance procedure for making pre-contractual disclosure in your country? How often must the disclosures be updated?
• •In the case of a sub-franchising structure, who must make pre-sale disclosures to sub-franchisees? If the sub-franchisor must provide disclosure, what must be disclosed concerning the franchisor and the contractual or other relationship between the franchisor and the sub-franchisor?
• •What due diligence should the parties undertake before entering a franchise relationship?
• •What information must the disclosure document contain?
• •Is there any obligation for continuing disclosure?
• •How do the relevant government agencies enforce the disclosure requirements?
• •What actions can franchisees take to obtain relief for violations of disclosure requirements? What are the legal remedies for such violations? How are damages calculated? If the franchisee can cancel or rescind the franchise contract, is the franchisee also entitled to reimbursement or damages?
• •In the case of sub-franchising, how is liability for disclosure violations shared between franchisor and sub-franchisor? Are individual officers, directors and employees of the franchisor or the sub-franchisor exposed to liability? If so, what liability?
• •In addition to any laws or government agencies that specifically regulate offering and selling franchises, what are the general principles of law that affect the offer and sale of franchises? What other regulations or government agencies or industry codes of conduct may affect the offer and sale of franchises?
• •Other than franchise-specific rules on what disclosures a franchisor should make to a potential franchisee or a franchisee should make to a sub franchisee regarding predecessors, litigation, trademarks, fees etc, are there any general rules on pre-sale disclosure that might apply to such transactions?
• •What actions may franchisees take if a franchisor engages in fraudulent or deceptive practices in connection with the offer and sale of franchises? How does this protection differ from the protection provided under franchise sales disclosure laws?

Legal restrictions on the terms of franchise contracts and the relationship between parties in a franchise relationship

• •Are there specific laws regulating the ongoing relationship between franchisor and franchisee after the franchise contract comes into effect?
• •What mechanisms are commonly incorporated in agreements to ensure operational compliance and standards?
• •May the franchisor unilaterally change operational terms and standards during the franchise relationship?
• •Do other laws affect the franchise relationship?
• •Do other government or trade association policies affect the franchise relationship?
• •In what circumstances may a franchisor terminate a franchise relationship? What are the specific legal restrictions on a franchisor’s ability to terminate a franchise relationship?
• •In what circumstances may a franchisee terminate a franchise relationship?
• •How are renewals of franchise agreements usually effected? Do formal or substantive requirements apply?
• •May a franchisor refuse to renew the franchise agreement with a franchisee? If yes, in what circumstances may a franchisor refuse to renew?
• •May a franchisor restrict a franchisee’s ability to transfer its franchise or restrict transfers of ownership interests in a franchisee entity?
• •Are there laws or regulations affecting the nature, amount or payment of fees?
• •Are there restrictions on the amount of interest that can be charged on overdue payments?
• •Are there laws or regulations restricting a franchisee’s ability to make payments to a foreign franchisor in the franchisor’s domestic currency?
• •Are confidentiality covenants in franchise agreements enforceable?
• •Is there a general legal obligation on parties to deal with each other in good faith during the term of the franchise agreement? If so, how does it affect franchise relationships?
• •Does any law treat franchisees as consumers for the purposes of consumer protection or other legislation?
• •Must disclosure documents and franchise agreements be in the language of your country?
• •Describe the types of restrictions placed on the franchisees in franchise contracts?
• •Describe the aspects of competition law in your country that are relevant to the typical franchisor. How are they enforced?
• •Describe the court system. What types of dispute resolution procedures are available relevant to franchising?
• •Describe the principal advantages and disadvantages of arbitration for foreign franchisors considering doing business in your jurisdiction.
• •In what respects, if at all, are foreign franchisors treated differently from domestic franchisors?

Click here to download the Gaming 2019 report, published by Getting the Deal Through.

The following 13 jurisdictions are covered in this report:

Australia; Brazil; Germany; Japan; Macao; Malta; Mexico; Nigeria; Poland; Spain; Switzerland; United Kingdom; United States

The set of questions relating to the topic of competition compliance and answered by the guide for each jurisdiction covered include:

Introduction

• •What are the legal elements required for an activity to be regarded as gambling?
• •With respect to remote or other cross-border activity, where is the wager deemed to take place?
• •What is the minimum age for participating in lawful gambling?
• •What are the penalties for offering unlawful gambling?
• •Does the law penalise the gambler directly for participating in unlawful gambling?
• •Are there exceptions for social gambling, or charitable or non-profit gambling?
• •What entity regulates land-based and remote gambling, and what are the regulator’s powers?
• •Are gambling licensees considered financial institutions for purposes of anti-money laundering and similar financial services regulatory requirements or are they otherwise subject to such requirements?

Land-based gambling

• •What types of land-based gambling are permitted in your jurisdiction, and is gambling regulated at a national or subnational level?
• •Please describe the licensing criteria to operate land-based gambling of each type or classification. Does your jurisdiction limit the number of available licences?
• •Must individual directors, officers or owners of licensees also be licensed or reviewed for suitability?
• •May a gambling location be part of a resort, restaurant or other multi-purpose location? What limitations apply?
• •Are there provisions for passive or institutional ownership that allow for exemption or modification of licensing requirements?
• •What responsible gambling obligations apply to licensees?
• •What type of tax and what tax rate applies to each form of lawful land-based gambling activity?

Remote gambling

• •Is remote gambling permitted and, if so, what types?
• •What are the criteria for obtaining a licence to operate remote gambling?
• •How do the licensing criteria for remote gambling operators differ from those applicable to land-based operators?
• •May operators located in other countries offer internet gambling to consumers in your jurisdiction without obtaining a licence there?
• •May operators licensed in your jurisdiction offer internet gambling to consumers in other countries?
• •What tax rate applies to each form of remote gambling?

Intellectual property

• •Are gambling games — land-based or remote — patentable in your jurisdiction?
• •Are there limitations on how brands, logos or other types of marks may be used in promoting gambling games?

Advertising

• •What types of restrictions apply to advertising gambling games?

Suppliers

• •What types of suppliers to gambling operators require licences?
• •If licensing is not required, is there a registration or other process suppliers are subject to, and what triggers that process?

Casino development

• •What considerations arise in developing a casino resort project that are not typical to other resort development?

Labour and employment

• •Are there particular rules governing hours and wage treatment for casino employees?
• •Must casino employees be members of labour unions or similar organisations?

Acquisitions and changes of control

• •How are licensee changes of control, and substantial changes in shareholdings of licensees, addressed?
• •How are gambling licences treated in bankruptcy?

Quasi-gambling

• •How are forms of “quasi-gambling” regulated? Are any treated as “gambling”, and what triggers such treatment?
• •Does your jurisdiction license quasi-gambling operators?
• •Does your jurisdiction impose other restrictions on the conduct of quasi-gambling activity, including restrictions on advertising, age of participation, limitations on prizes, etc?

Litigation

• •What, if any, significant litigation involving the gambling or quasi-gambling sectors has your jurisdiction seen in recent years?

Click here download the Gas regulation 2019 report, published by Getting the Deal Through.

The 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

The set of questions relating to the topic of Gas regulation and answered by the guide for each jurisdiction covered include:

• •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 download the government investigations 2020 report, published by Getting the Deal Through.

The following 12 jurisdictions are covered in this report:

Australia; Colombia; England & Wales; Greece; India; Italy; Japan; South Korea; Switzerland; Turkey; Ukraine; United States.

The set of questions relating to the topic of government investigations and answered by the guide for each jurisdiction covered include:

Enforcement agencies and corporate liability

• •What government agencies are principally responsible for the enforcement of civil and criminal laws and regulations applicable to businesses?
• •What is the scope of each agency’s enforcement authority? Can the agencies pursue actions against corporate employees as well as the company itself? Do they typically do this?
• •Can multiple government entities simultaneously investigate the same target business? Must they coordinate their investigations? May they share information obtained from the target and on what terms?
• •In what fora can civil charges be brought? In what fora can criminal charges be brought?
• •Is there a legal concept of corporate criminal liability? How does the government prove that a corporation is criminally liable for the acts of its officers, directors or employees?
• •Must the government evaluate any particular factors in deciding whether to bring criminal charges against a corporation?

Initiation of an investigation

• •Must the government evaluate any particular factors in deciding whether to bring criminal charges against a corporation?
• •What events commonly trigger a government investigation? Do different enforcement entities have different triggering events?
• •What protections are whistle-blowers entitled to?
• •At what stage will a government entity typically publicly acknowledge an investigation? How may a business under investigation seek anonymity or otherwise protect its reputation?

Evidence gathering and investigative techniques

• •Is there a covert phase of the investigation, before the target business is approached by the government? Approximately how long does that phase last?
• •What investigative techniques are used during the covert phase?
• •After a target business becomes aware of the government’s investigation, what steps should it take to develop its own understanding of the facts?
• •Must the target business preserve documents, recorded communications and any other materials in connection with a government investigation? At what stage of the investigation does that duty arise?
• •During the course of an investigation, what materials (for example, documents, records, recorded communications) can the government entity require the target business to provide? What limitations do data protection and privacy laws impose and how are those limitations addressed?
• •On what legal grounds can the target business oppose the government’s demand for materials? Can corporate documents be privileged? Can advice from an in-house attorney be privileged?
• •May the government compel testimony of employees of the target business? What rights against incrimination, if any, do employees have? If testimony cannot be compelled, what other means does the government typically use to obtain information from corporate employees?
• •Under what circumstances should employees obtain their own legal counsel? Under what circumstances can they be represented by counsel for the target business?
• •Where the government is investigating multiple target businesses, may the targets share information to assist in their defence? Can shared materials remain privileged? What are the potential negative consequences of sharing information?
• •At what stage must the target notify investors about the investigation? What should be considered in developing the content of those disclosures?

Cooperation

• •Is there a mechanism by which a target business can cooperate with the investigation? Can a target notify the government of potential wrongdoing before a government investigation has started?
• •Do the principal government enforcement entities have formal voluntary disclosure programmes that can qualify a business for amnesty or reduced sanctions?
• •Can a target business commence cooperation at any stage of the investigation?
• •What is a target business generally required to do to fulfil its obligation to cooperate?
• •When a target business is cooperating, what can it require of its employees? Can it pay attorneys’ fees for its employees? Can the government entity consider whether a business is paying employees’ (or former employees’) attorneys’ fees in evaluating a target’s cooperation?
• •What considerations are relevant to an individual employee’s decision whether to cooperate with a government investigation in this context? What legal protections, if any, does an employee have?
• •How does cooperation affect the target business’s ability to assert that certain documents and communications are privileged in other contexts, such as related civil litigation?

Resolution

• •What mechanisms are available to resolve a government investigation?
• •Is an admission of wrongdoing by the target business required? Can that admission be used against the target in other contexts, such as related civil litigation?
• •What civil penalties can be imposed on businesses?
• •What criminal penalties can be imposed on businesses?
• •What is the applicable sentencing regime for businesses? (Are sentences mandatory or discretionary? What are the sources of sentencing rules?)
• •What does an admission of wrongdoing mean for the business’s future participation in particular ventures or industries?

Click here to download the High-yield debt 2019 report, published by Getting the Deal Through.

The following 11 jurisdictions are covered in this report:

Brazil; China; Finland; France; Greece; Portugal; Russia; Spain; Switzerland; United Kingdom; United States

The set of questions relating to the topic of high-yield debt and answered by the guide for each jurisdiction covered include:

• •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 Initial public offerings 2020 report, published by Getting the Deal Through.

The following 14 jurisdictions are covered in this report:

Belgium; Germany; Hong Kong; Ireland; Italy; Japan; Luxembourg; Malta; New Zealand; South Africa; Sweden; Switzerland; United Kingdom; United States

The set of questions relating to the topic of initial public offerings and answered by the guide for each jurisdiction covered include:

Market overview

• •What is the size of the market for initial public offerings (IPOs) in your jurisdiction?
• •Who are the issuers in the IPO market? Do domestic companies tend to list at home or overseas? Do overseas companies list in your market?
• •What are the primary exchanges for IPOs? How do they differ?

Regulation

• •Which bodies are responsible for rulemaking and enforcing the rules on IPOs?
• •Must issuers seek authorisation for a listing? What information must issuers provide to the listing authority and how is it assessed?
• •What information must be made available to prospective investors and how must it be presented?
• •What restrictions on publicity and marketing apply during the IPO process?
• •What sanctions can public enforcers impose for breach of IPO rules? On whom?

Timetable and costs

• •Describe the timetable of a typical IPO and stock exchange listing in your jurisdiction.
• •What are the usual costs and fees for conducting an IPO?

Corporate governance

• •What corporate governance requirements are typical or required of issuers conducting an IPO and obtaining a stock exchange listing in your jurisdiction?
• •Are there special allowances for certain types of new issuers?
• •What types of anti-takeover devices are typically implemented by IPO issuers in your jurisdiction? Are there generally applicable rules relevant to takeovers that are relevant?

Foreign issuers

• •What are the main considerations for foreign issuers looking to list in your jurisdiction? Are there special requirements for foreign issuer IPOs?
• •Where a foreign issuer is conducting an IPO outside your jurisdiction but not conducting a public offering within your jurisdiction, are there exemptions available to permit sales to investors within your jurisdiction?

Tax

• •Are there any unique tax issues that are relevant to IPOs in your jurisdiction?

Investor claims

• •In which fora can IPO investors seek redress? Is non-judicial resolution of complaints a possibility?
• •Are class actions possible in IPO-related claims?
• •What are the causes of action? Whom can investors sue? And what remedies may investors seek?

Click here download the Islamic finance and markets 2020 report, published by Getting the Deal Through.

The following 8 jurisdictions are covered in this report:

France; Japan; Malaysia; Philippines; Switzerland; United Kingdom; United States; Uzbekistan.

The 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?

Supervision

• •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?

Contracting concepts

• •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.

Products

• •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?

Miscellaneous

• •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 Joint ventures 2020 report, published by Getting the Deal Through.

The following 17 jurisdictions are covered in this report:

Argentina; China; Germany; India; Indonesia; Japan; Netherlands; Russia; Saudi Arabia; South Africa; South Korea; Switzerland; Thailand; Turkey; Ukraine; United Kingdom; United States.

The set of questions relating to the topic of joint ventures and answered by the guide for each jurisdiction covered include:

Form

• •What are the key types of joint venture in your jurisdiction? Is the “joint venture” recognized as a distinct legal concept?
• •In what sectors are joint ventures most commonly used in your jurisdiction?

Rules for foreign parties

• •Are there rules that relate specifically to foreign joint venture parties?
• •What requirements are there to disclose the ultimate beneficial ownership of a joint venture entity?

Setting up and operating a joint venture

• •Are there any particular drivers in your jurisdiction that will determine how a joint venture is structured?
• •When establishing a joint venture, what tax considerations arise for the joint venture parties and the joint venture entity? How can tax charges be lawfully mitigated?
• •Are there any restrictions on the contribution of assets to a joint venture entity?
• •What is the interaction between the constitution of the joint venture entity and the agreement between the joint venture parties?
• •How many joint venture parties interact with the joint venture entity? Are there any restrictions?
• •How may the joint venture parties exercise control over the joint venture entity’s decision-making?
• •What are the most common governance issues that arise in connection with joint ventures? How are there dealt with?
• •With an incorporated joint venture, what controls exist in your jurisdiction in relation to nominee directors? How should a nominee director balance the potentially conflicting interests of the joint venture company and the appointing shareholder?
• •What competition law considerations are engaged by the formation and operation of the joint venture? Is approval needed?
• •What are the key considerations in your jurisdiction in structuring the provision of services to the joint venture entity by joint venture parties?
• •What impact do statutory employment rights have in joint ventures?
• •How are intellectual property rights generally dealt with in the creation, operation and termination of a joint venture in your jurisdiction?

Funding the joint venture

• •Are there any legal or regulatory restrictions on the injection of capital into, or the distribution of profits or the extraction of cash by other means from, the joint venture entity?
• •Are any restrictions on the injection of capital into, or the distribution of profits or the extraction of cash by other means from, the joint venture entity imposed by law or regulation?
• •What tax considerations should be taken into account in the operation of the joint venture?
• •Are there any noteworthy accounting or reporting issues for the joint venture parties regarding their investment in the joint venture?

Deadlock, exit and termination

• •What deadlock provisions are commonly included in joint venture agreements in your jurisdiction?
• •What exit provisions are commonly included? Does the law restrict any forms of mandatory transfer provision or any basis of calculation?
• •What are the tax considerations on termination of the joint venture?

Disputes

• •In your jurisdiction, are there constraints on the choice of law of the method of dispute resolution provided for in joint venture agreements?
• •What mandatory provisions of local law will apply irrespective of the choice of governing law?
• •Are there any restrictions on the remedies a tribunal can grant that would have a bearing on the arbitration of joint venture disputes? Are there any restrictions on the arbitration of shareholder claims?
• •Are there any statutory protections for minority investors that would apply to joint ventures?
• •How can joint venture parties have liabilities to each other beyond what is expressly agreed in the joint venture agreement?
• •Are there any particular issues that can arise in joint venture disputes in your jurisdiction concerning disclosure of evidence?

Market overview

• •What advantages does your jurisdiction offer for parties wishing to set up and operate joint ventures?
• •Are there any particular requirements or restrictions relating to joint ventures in your jurisdiction that could deter international investors?

Click here to download the Litigation funding 2019 report, published by Getting the Deal Through.

The following 21 jurisdictions are covered in this report:

Australia; Austria; Bermuda; Brazil; Cayman Islands; England & Wales; Germany; Hong Kong; Ireland; Israel; Korea; Mauritius; Netherlands; New Zealand; Poland; Singapore; Spain; Switzerland; United Arab Emirates; United States — New York; United States — other key jurisdictions.

The set of questions relating to the topic of litigation funding and answered by the guide for each jurisdiction covered include:

• •Is third-party litigation funding permitted? Is it commonly used?
• •Are there limits on the fees and interest funders can charge?
• •Are there any specific legislative or regulatory provisions applicable to third-party litigation funding?
• •Do specific professional or ethical rules apply to lawyers advising clients in relation to third-party litigation funding?
• •Do any public bodies have any particular interest in or oversight over third-party litigation funding?
• •May third-party funders insist on their choice of counsel?
• •May funders attend or participate in hearings and settlement proceedings?
• •Do funders have veto rights in respect of settlements?
• •In what circumstances may a funder terminate funding?
• •In what other ways may funders take an active role in the litigation process? In what ways are funders required to take an active role?
• •May litigation lawyers enter into conditional or contingency fee agreements?
• •What other funding options are available to litigants?
• •How long does a commercial claim usually take to reach a decision at first instance?
• •What proportion of first-instance judgments are appealed? How long do appeals usually take?
• •What proportion of judgments require contentious enforcement proceedings? How easy are they to enforce?
• •Are class actions or group actions permitted? May they be funded by third parties?
• •May the courts order the unsuccessful party to pay the costs of the successful party in litigation? May the courts order the unsuccessful party to pay the litigation funding costs of the successful party?
• •Can a third-party litigation funder be held liable for adverse costs?
• •May the courts order a claimant or a third party to provide security for costs?
• •If a claim is funded by a third party, does this influence the court’s decision on security for costs?
• •Is after-the-event (ATE) insurance permitted? Is ATE commonly used? Are any other types of insurance commonly used by claimants?
• •Must a litigant disclose a litigation funding agreement to the opposing party or to the court? Can the opponent or the court compel disclosure of a funding agreement?
• •Are communications between litigants or their lawyers and funders protected by privilege?
• •Have there been any reported disputes between litigants and their funders?
• •Are there any other issues relating to the law or practice of litigation funding that practitioners should be aware of?

Click here to download the Loans and Secured Financing 2020 report, published by Getting the Deal Through.

The following 14 jurisdictions are covered in this report:

Belgium; Cayman Islands; Egypt; Greece; India; Indonesia; Japan; Kenya; Luxembourg; Mexico; Spain; Switzerland; United Kingdom; United States.

The 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?

Regulation

• •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.

Security interests and guarantees

• •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 nonfulfilment 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.

Intercreditor matters

• •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?

Loan document terms

• • 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 M and A litigation 2019 report, published by Getting the Deal Through.

The following 15 jurisdictions are covered in this report:

Australia; Austria; China; France; Germany; Hong Kong; India; Italy; Japan; Netherlands; Spain; Switzerland; Turkey; United Kingdom; United States

The set of questions relating to the topic of M&A litigation and answered by the guide for each jurisdiction covered include:

• •Identify the main claims shareholders in your jurisdiction may assert against corporations, officers and directors in connection with M&A transactions.
• •For each of the most common claims, what must shareholders in your jurisdiction show to bring a successful suit?
• •Do the types of claims that shareholders can bring differ depending on whether the corporations involved in the M&A transaction are publicly traded or privately held?
• •Do the types of claims that shareholders can bring differ depending on the form of the transaction?
• •Do the types of claims differ depending on whether the transaction involves a negotiated transaction versus a hostile or unsolicited offer?
• •Do the types of claims differ depending on whether the loss is suffered by the corporation or by the shareholder?
• •Where a loss is suffered directly by individual shareholders in connection with M&A transactions, may they pursue claims on behalf of other similarly situated shareholders?
• •Where a loss is suffered by the corporation in connection with an M&A transaction, can shareholders bring derivative litigation on behalf or in the name of the corporation?
• •What are the bases for a court to award injunctive or other interim relief to prevent the closing of an M&A transaction? May courts in your jurisdiction enjoin M&A transactions or modify deal terms?
• •May defendants seek early dismissal of a shareholder complaint prior to disclosure or discovery?
• •Can shareholders bring claims against third-party advisers that assist in M&A transactions?
• •Can shareholders in one of the parties bring claims against the counterparties to M&A transactions?
• •What impact do the corporation’s constituting documents have on the extent board members or executives can be held liable in connection with M&A transactions?
• •Are there any statutory or regulatory provisions in your jurisdiction that limit shareholders’ ability to bring claims against directors and officers in connection with M&A transactions?
• •Are there common law rules that impair shareholders’ ability to bring claims against board members or executives in connection with M&A transactions?
• •What is the standard for determining whether a board member or executive may be held liable to shareholders in connection with an M&A transaction?
• •Does the standard vary depending on the type of transaction at issue?
• •Does the standard vary depending on the type of consideration being paid to the seller’s shareholders?
• •Does the standard vary if one or more directors or officers have potential conflicts of interest in connection with an M&A transaction?
• •Does the standard vary if a controlling shareholder is a party to the transaction or is receiving consideration in connection with the transaction that is not shared ratably with all shareholders?
• •Does your jurisdiction impose legal restrictions on a company’s ability to indemnify, or advance the legal fees of, its officers and directors named as defendants?
• •Can shareholders challenge particular clauses or terms in M&A transaction documents?
• •What impact does a shareholder vote have on M&A litigation in your jurisdiction?
• •What role does directors’ and officers’ insurance play in shareholder litigation arising from M&A transactions?
• •Who has the burden of proof in an M&A litigation — the shareholders or the board members and officers? Does the burden ever shift?
• •Are there pre-litigation tools that enable shareholders to investigate potential claims against board members or executives?
• •Are there jurisdictional or other rules limiting where shareholders can bring M&A litigation?
• •Does your jurisdiction permit expedited proceedings and discovery in M&A litigation? What are the most common discovery issues that arise?
• •How are damages calculated in M&A litigation in your jurisdiction?
• •What are the special issues in your jurisdiction with respect to settling shareholder M&A litigation?
• •Can third parties bring litigation to break up or stop agreed M&A transactions prior to closing?
• •Can third parties in your jurisdiction use litigation to force or pressure corporations to enter into M&A transactions?
• •What are the duties and responsibilities of directors in your jurisdiction when the corporation receives an unsolicited or unwanted proposal to enter into an M&A transaction?
• •Shareholders aside, what are the most common types of claims asserted by and against counterparties to an M&A transaction?
• •How does litigation between the parties to an M&A transaction differ from litigation brought by shareholders?

Click here to download the mediation 2019 report, published by Getting the Deal Through.

The following 10 jurisdictions are covered in this report:

Austria; Brazil; Germany; Hong Kong; India; Italy; Nigeria; Romania; Spain; United States.

The set of questions relating to the topic of mediation and answered by the guide for each jurisdiction covered include:

Law and policy

• •Is there any legal definition in your jurisdiction of the terms ‘ADR’, ‘conciliation’ and ‘mediation’?
• •What is the history of commercial mediation in your jurisdiction? And which mediation models are practised?
• •Are there any domestic laws specifically governing mediation and its practice?
• •Is your state expected to sign and ratify the UN Convention on International Settlement Agreements Resulting from Mediation when it comes into force?
• •To what extent, and how, is mediation encouraged in your jurisdiction?
• •Are there any sanctions if a party to a dispute proposes mediation and the other ignores the proposal, refuses to mediate or frustrates the mediation process?
• •How common is commercial mediation compared with litigation?

Mediators

• •Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?
• •What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?
• •Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?
• •How are mediators appointed?
• •Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?
• •Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?
• •Are the parties typically represented by lawyers in commercial mediation? Are fact- and expert witnesses commonly used?
• •Are there rules governing the mediation procedure? If not, what is the typical procedure before and during the hearing?
• •Does commencement of mediation interrupt the limitation period for a court or arbitration claim?
• •Is a dispute resolution clause providing for mediation enforceable? What is the legal basis for enforceability?
• •Are mediation proceedings strictly private and confidential?
• •What is the likelihood of a commercial mediation being successful?

Settlement agreements

• •Must a settlement agreement be in writing to be enforceable? Are there other formalities?
• •In what circumstances can the mediation settlement agreement be challenged in court? Can the mediator be called to give evidence regarding the mediation or the alleged settlement?
• •Are there rules regarding enforcement of mediation settlement agreements? And on what basis is the mediation settlement agreement enforceable?

Stay in favour of mediation

• •Must courts stay their proceedings in favour of mediation?
• •Are there any distinctive features of commercial mediation in your jurisdiction not covered above?

Click here to download the Merger control 2019 report, published by Getting the Deal Through.

The following 72 jurisdictions are covered in this report:

Albania; Algeria; Argentina; Australia; Austria; Belgium; Bolivia; Bosnia and Herzegovina; Brazil; Bulgaria; Canada; Chile; China; Colombia; COMESA; Croatia; Cyprus; Czech Republic; Denmark; Ecuador; European Union; Faroe Islands; Finland; France; Germany; Greece; Greenland; Hong Kong; Hungary; Iceland; India; Indonesia; Ireland; Israel; Italy; Japan; Kenya; Korea; Liechtenstein; Macedonia; Malta; Mexico; Morocco; Mozambique; Netherlands; New Zealand; Nigeria; Norway; Pakistan; Philippines; Poland; Portugal; Romania; Russia; Saudi Arabia; Serbia; Singapore; Slovakia; Slovenia; South Africa; Spain; Sweden; Switzerland; Taiwan; Thailand; Turkey; Ukraine; United Arab Emirates; United Kingdom; United States; Uzbekistan; Zambia.

The set of questions relating to the topic of merger control and answered by the guide for each jurisdiction covered include:

Legislation and jurisdiction

• •What is the relevant legislation and who enforces it?
• •What kinds of mergers are caught?
• •What types of joint ventures are caught?
• •Is there a definition of “control” and are minority and other interests less than control (including board or management representation, or contractual arrangements) caught?
• •What are the jurisdictional thresholds for notification and are there circumstances in which transactions falling below these thresholds may be investigated?
• •Is the filing mandatory or voluntary? If mandatory, do any exceptions exist?
• •Do foreign-to-foreign mergers have to be notified and is there a local effects or nexus test?
• •Are there also rules on foreign investment, special sectors or other relevant approvals? (If so, deal with these in outline only.)

Notification and clearance timetable

• •What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
• •Which parties are responsible for filing and are filing fees required?
• •What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
• •What are the possible sanctions involved in closing or integrating the activities of the merging businesses (even partly) before clearance and are they applied in practice? (Provide details of any recent cases that illustrate the types of sanctions that are applied.)
• •Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
• •What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
• •Are there any special merger control rules applicable to public takeover bids?
• •What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information? (Give examples and explain what documentation relating to the deal must be filed.)
• •What are the typical steps and different phases of the investigation?
• •What is the statutory timetable for clearance? Can it be speeded up? (Mention the authorities’ practice in respect of prolongations, and say how long it typically takes to obtain a decision.)

Substantive assessment

• •What is the substantive test for clearance? (Explain if this is affected by special circumstances, eg, use of a “failing firm” defence.)
• •Is there a special substantive test for joint ventures?
• •What are the ‘theories of harm’ that the authorities will investigate (eg, market dominance, unilateral effects, coordinated effects, conglomerate effects, vertical foreclosure, harm to innovation, common ownership concerns)?
• •To what extent are non-competition issues (such as industrial policy or public interest issues) relevant in the review process (either formally or informally)? (If so, explain how these are assessed in practice.)
• •To what extent does the authority take into account economic efficiencies in the review process? (Give examples.)

Remedies and ancillary restraints

• •What powers do the authorities have to prohibit or otherwise interfere with a transaction?
• •Is it possible to remedy competition issues, for example by giving divestment undertakings or behavioural remedies?
• •What are the basic conditions and timing issues applicable to a divestment or other remedy?
• •What is the track record of the authority in requiring remedies in foreign-to-foreign mergers?
• •In what circumstances will the clearance decision cover related arrangements (ancillary restrictions)?

Involvement of other parties or authorities

• •Are customers and competitors involved in the review process and what rights do complainants have?
• •What publicity is given to the process and how do you protect commercial information, including business secrets, from disclosure?
• •Do the authorities cooperate with antitrust authorities in other jurisdictions?

Judicial review

• •What are the opportunities for appeal or judicial review? (Mention any important recent examples and outcomes.)
• •What is the usual time frame for appeal or judicial review?

Enforcement practice and future developments

• •What is the recent enforcement record and what are the current enforcement concerns of the authorities?
• •Are there current proposals to change the legislation?

Click here to download the Mining 2019 report, published by Getting the Deal Through.

The 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

The 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?

Legal and regulatory structure

• •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?

Mining rights and title

• •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?

Duties, royalties and taxes

• •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?

Business structures

• •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?

Financing

• •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.

Restrictions

• •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?

Environment

• •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?

Health & safety, and labour issues

• •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?

Social and community issues

• •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?

Anti-bribery and corrupt practices

• •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?

Foreign investment

• •Are there any foreign ownership restrictions in your jurisdiction relevant to the mining industry?

International treaties

• •What international treaties apply to the mining industry or an investment in the mining industry?

Click here to download the Oil regulation 2019 report, published by Getting the Deal Through.

The 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

The set of questions relating tthe 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? What are your country’s energy demand and supply trends, especially as they affect crude oil usage?
• •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.

Regulation overview

• •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?

Natural resources

• •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?

Local content requirements

• •Must companies operating in your country prefer, or use a minimum amount of, locally sourced goods, services and capital?
• •Describe any social programme payment obligations that must be made by a licensee, lessee or contractor.

Transfers to third parties

• •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?

Title to facilities and equipment

• •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?

Decommissioning and abandonment

• •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?

Transportation

• •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?

Cost recovery

• •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.

Health, safety and environment

• •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?

Labour

• •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?

Taxation

• •What is the tax regime applicable toil exploration, production, transportation, and marketing and distribution activities? What government body wields tax authority?

Commodity price controls

• •Is there a mandatory price-setting regime for crude oil or crude oil products? If so, what are the requirements and penalties for noncompliance?

Competition, trade and merger control

• •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?

Data

• •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?

International

• •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?

Click here to download the outsourcing 2016 report, published by Getting the Deal Through.

The following 15 jurisdictions are covered in this report:

Australia; Chile; Czech Republic; Finland; France; Germany; Italy; Japan; Mexico; Philippines; Portugal; Spain; Switzerland; United Kingdom; United States.

The set of questions relating to the topic of outsourcing and answered by the guide for each jurisdiction covered include:

Market overview

• •What kinds of outsourcing take place in your jurisdiction?
• •Describe the recent history of outsourcing in your jurisdiction. How well established is outsourcing? What is the size of the outsourcing market in your jurisdiction?

Policy

• •Has the government of your jurisdiction adopted policies to encourage the development of the jurisdiction as an outsourcing centre, either for the domestic market or to provide outsourcing services to foreign customers?
• •Are there in your jurisdiction any fiscal or customs incentives, development grants or other government incentives to promote outsourcing operations within your jurisdiction?

Legislation and regulation

• •Is outsourcing as a commercial or operational concept specifically recognised and provided for in your legal system? How?
• •Is there any legislation or regulation that directly prohibits, restricts or otherwise governs outsourcing, whether in (onshore) or outside (offshore) your jurisdiction?
• •What are the consequences for breach of the laws directly restricting outsourcing?
• •Describe any sector-specific legislation or regulation that applies to outsourcing operations.
• •How does competition regulation apply to outsourcing contracts or structures?
• •Are there any draft laws or legislative initiatives specific to outsourcing that are being developed or are contemplated?

Contractual considerations

• •What are the typical corporate or quasi-corporate structures or vehicles used to create outsourcing arrangements?
• •What forms of outsourcing contract are usually adopted in your jurisdiction?
• •Outline the contractual approaches that are adopted in your jurisdiction to address regulations affecting outsourcing.

Data protection

• •Identify the principal data protection legislation applicable to outsourcing operations.
• •How do rules on the ownership, location, processing and distribution of data apply to outsourcing in your jurisdiction?

Labour and employment

• •What is the relevant labour and employment legislation for outsourcing transactions?
• •In the context of an outsourcing, how does labour and employment law apply to a change in initial or subsequent service providers, or transfers of undertakings or parts of undertakings?
• •Are there any requirements to consult or negotiate with organised labour, works councils or employees regarding an outsourcing?
• •Are there any notification or approval requirements that apply to an outsourcing transaction?
• •What are the legal implications, including penalties, for non-compliance with the labour and employment rules and procedures?
• •What are the key immigration and visa requirements for employees of customers or providers entering your jurisdiction to manage outsourced operations or to receive or provide training?

Taxation

• •Outline the taxation rules that apply to the establishment and operation of outsourcing captives or similar establishments in your jurisdiction.
• •Outline the indirect taxes in your jurisdiction that apply to the import of offshore outsourcing services by companies within your jurisdiction.

Current issues

• •Identify and give details of any notable cases or administrative or regulatory determinations within the past three years in your jurisdiction that have directly involved outsourcing.
• •What are the main challenges facing outsourcing within, from or to your jurisdiction?

Click here to download the Ports and terminals 2020 report, published by Getting the Deal Through.

The following 20 jurisdictions are covered in this report:

Argentina; Australia; Brazil; China; Croatia; Cyprus; Denmark; Germany; Mozambique; Netherlands; Nigeria; Paraguay; Peru; Portugal; Russia; Sri Lanka; Turkey; United Arab Emirates; United Kingdom; Venezuela.

The 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?

Legislative framework and regulation

• •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?

Public procurement and PPP

• •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?

Port development and construction

• •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?

Port operations

• •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?

Miscellaneous

• •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 antitrust litigation 2020 report, published by Getting the Deal Through.

The following 17 jurisdictions are covered in this report:

China; England and Wales; France; Germany; Greece; Israel; Italy; Japan; Mexico; Netherlands; Norway; Portugal; Spain; Sweden; Switzerland; Turkey; United States.

The set of questions relating to the topic of private antitrust litigation and answered by the guide for each jurisdiction covered include:

Legislation and jurisdiction

• •How would you summarise the development of private antitrust litigation in your jurisdiction?
• •Are private antitrust actions mandated by statute? If not, on what basis are they possible? Is standing to bring a claim limited to those directly affected or may indirect purchasers bring claims?
• •If based on statute, what is the relevant legislation and which are the relevant courts and tribunals?
• •In what types of antitrust matters are private actions available (eg cartel cases)? Is a finding of infringement by a competition authority required to initiate a private antitrust action in your jurisdiction? What is the effect of a finding of infringement by a competition authority on national courts? (Is it binding or persuasive, and does effect depend on which authority issues the decision?)
• •What nexus with the jurisdiction is required to found a private action? To what extent can the parties influence in which jurisdiction a claim will be heard?
• •Can private actions be brought against both corporations and individuals, including those from other jurisdictions?

Private action procedure

• •May litigation be funded by third parties? Are contingency fees available?
• •Are jury trials available?
• •What pretrial discovery procedures are available?
• •What evidence is admissible?
• •What evidence is protected by legal privilege?
• •Are private actions available where there has been a criminal conviction in respect of the same matter?
• •Can the evidence or findings in criminal proceedings be relied on by plaintiffs in parallel private actions? Are leniency applicants protected from follow-on litigation? Do the competition authorities routinely disclose documents obtained in their investigations to private claimants?
• •In which circumstances can a defendant petition the court for a stay of proceedings in a private antitrust action?
• •What is the applicable standard of proof for claimants? Is passing on a matter for the claimant or defendant to prove? What is the applicable standard of proof?
• •What is the typical timetable for collective and single party proceedings? Is it possible to accelerate proceedings?
• •What are the relevant limitation periods?
• •What appeals are available? Is appeal available on the facts or on the law?

Collective actions

• •Are collective proceedings available in respect of antitrust claims?
• •Are collective proceedings mandated by legislation?
• •If collective proceedings are allowed, is there a certification process? What is the test?
• •Have courts certified collective proceedings in antitrust matters?
• •Can plaintiffs opt out or opt in?
• •Do collective settlements require judicial authorisation?
• •If the country is divided into multiple jurisdictions, is a national collective proceeding possible? Can private actions be brought simultaneously in respect of the same matter in more than one jurisdiction?
• •Has a plaintiffs’ collective-proceeding bar developed?

Remedies

• •What forms of compensation are available and on what basis are they allowed?
• •What other forms of remedy are available? What must a claimant prove to obtain an interim remedy?
• •Are punitive or exemplary damages available?
• •Is there provision for interest on damages awards and from when does it accrue?
• •Are the fines imposed by competition authorities taken into account when setting damages?
• •Who bears the legal costs? Can legal costs be recovered, and if so, on what basis?
• •Is liability imposed on a joint and several basis?
• •Is there a possibility for contribution and indemnity among defendants? How must such claims be asserted (ie, in the same proceedings as the principal claim, or pursued after a judgment or settlement)?
• •Is the “passing on” defence allowed?
• •Do any other defences exist that permit companies or individuals to defend themselves against competition law liability?
• •Is alternative dispute resolution available?

Click here to download the Private banking and wealth management 2020 report, published by Getting the Deal Through.

The following 11 jurisdictions are covered in this report:

China; France; Germany; Hong Kong; Israel; Liechtenstein; Monaco; Singapore; Switzerland; United Kingdom; United States.

The set of questions relating to the topic of private banking & wealth management and answered by the guide for each jurisdiction covered include:

Private banking and wealth management

• •What are the main sources of law and regulation relevant for private banking?
• •What are the main government, regulatory or self-regulatory bodies relevant for private banking and wealth management?
• •How are private wealth services commonly provided in your jurisdiction(eg, private banks, multi-family offices, independent asset managers, trustees)?
• •What is the definition of private banking or similar business in your jurisdiction?
• •What are the main licensing requirements for a private bank (disclosure, substance, fit and proper test, capital, etc)?
• •What are the main ongoing conditions of a licence for a private bank?
• •What are the most common forms of organisation of a private bank?
• •How long does it take to obtain a licence for a private bank?
• •What are the processes and conditions for closure or withdrawal of licences?
• •Is wealth management subject to supervision or licensing?
• •What are the main licensing requirements for wealth management?
• •What are the main ongoing conditions of a wealth management licence?

Anti-money laundering and financial crime prevention

• •What are the main anti-money laundering and financial crime prevention requirements for private banking and wealth management in your jurisdiction?
• •What is the definition of a politically exposed person (PEP) in local law? Are there increased due diligence requirements for establishing a private banking relationship for a PEP?
• •What is the minimum identification documentation required for account opening? Describe the customary level of due diligence and information required to establish a private banking relationship in your jurisdiction.
• •Are tax offences predicate offences for money laundering? What is the definition and scope of the main predicate offences?
• •What is the minimum compliance verification required from financial intermediaries in connection to tax compliance of their clients?
• •What is the liability for failing to comply with money laundering or financial crime rules?

Client segmentation and protection

• •Does your jurisdiction’s legal and regulatory framework distinguish between types of client for private banking purposes?
• •What are the consequences of client categorisation?
• •Is there consumer protection or similar legislation in your jurisdiction relevant to private banking and wealth management?

Exchange controls and withdrawals

• •Describe any exchange controls or restrictions on the movement of funds.
• •Are there restrictions on cash withdrawals imposed by law or regulation? Do banks customarily impose restrictions on account withdrawals?
• •Are there any restrictions on other withdrawals from an account in your jurisdiction?

Cross-border services

• •What is the general framework dealing with cross-border private banking services into your jurisdiction?
• •Are there any licensing requirements for cross-border private banking services into your jurisdiction?
• •What forms of cross-border services are regulated and how?
• •May employees of foreign private banking institutions travel to meet clients and prospective clients in your jurisdiction? Are there any licensing or registration requirements?
• •May foreign private banking institutions send documents to clients and prospective clients in your jurisdiction? Are there any licensing or registration requirements?

Tax disclosure and reporting

• •What are the main requirements on individual taxpayers in your jurisdiction to disclose or establish tax-compliant status of private banking accounts to the authorities in your jurisdiction? Does the requirement differ for domestic and foreign private banking accounts?
• •Are there any reporting requirements imposed on the private banks or financial intermediaries in your jurisdiction in respect to their domestic and international clients?
• •Is client consent required to permit reporting by the private bank or financial intermediary? Can such consent be revoked? What is the consequence of consent not being given or being revoked?

Structures

• •What is the most common legal structure for holding private assets in your jurisdiction? Describe the benefits, risks and costs of the most common structures.
• •What is the customary level of know-your-customer (KYC) and other information required to establish a private banking relationship where assets are held in the name of a legal structure?
• •What is the definition of controlling person in your jurisdiction?
• •Are there any regulatory or tax obstacles to the use of structures to hold private assets?

Contract provisions

• •Describe the various types of private banking and wealth management contracts and their main features. (Include a discussion of governing law and whether it can be varied by the parties.)
• •What is the liability standard provided for by law? Can it be varied by contract and what is the customary negotiated liability standard in your jurisdiction?
• •Are any mandatory provisions imposed by law or regulation in private banking or wealth management contracts? Are there any mandatory requirements for any disclosure, notice, form or content of any of the private banking contract documentation?
• •What is the applicable limitation period for claims under a private banking or wealth management contract? Can the limitation period be varied contractually? How can the limitation period be tolled or waived?

Confidentiality

• •Describe any private banking confidentiality obligations.
• •What information and documents are within the scope of confidentiality?
• •What are the exceptions and limitations to the duty of confidentiality?
• •What is the liability for the breach of confidentiality?

Disputes

• •What are the local competent authorities for dispute resolution in the private banking industry?
• •Are private banking disputes subject to disclosure to the local regulator? Can a client lodge a complaint with the local regulator? How are complaints investigated?

Click here to download the private equity (fund formation) 2019 report, published by Getting the Deal Through.

The 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.

The set of questions relating to the topic of private equity (fund formation) and answered by the guide for each jurisdiction covered include:

• •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 Private Mergers & Acquisitions 2020 report, published by Getting the Deal Through.

The following 40 jurisdictions are covered in this report:

Australia; Austria; Belgium; Brazil; Canada; China; Costa Rica; Denmark; Egypt; Finland; France; Germany; Greece; Hong Kong; India; Indonesia; Ireland; Israel; Italy; Japan; Luxembourg; Malaysia; Myanmar; Netherlands; Norway; Philippines; Poland; Portugal; Serbia; Singapore; South Africa; Spain; Sudan; Sweden; Switzerland; Taiwan; Turkey; UAE; United Kingdom; United States.

The set of questions relating to the topic of mergers and acquisitions and answered by the guide for each jurisdiction covered include:

• •Good Governance Guides — A practical guide to categorising risk
• •What are the main laws and regulations governing business combinations?
• •What law typically governs the transaction agreements?
• •Which government or stock exchange filings are necessary in connection with a business combination? Are there stamp taxes or other government fees in connection with completing a business combination?
• •What information needs to be made public in a business combination? Does this depend on what type of structure is used?
• •What are the disclosure requirements for owners of large shareholdings in a company? Are the requirements affected if the company is a party to a business combination?
• •What duties do the directors or managers of a company owe to the company’s shareholders, creditors and other stakeholders in connection with a business combination? Do controlling shareholders have similar duties?
• •What approval rights do shareholders have over business combinations? Do shareholders have appraisal or similar rights in business combinations?
• •What are the special considerations for unsolicited transactions?
• •Which types of break-up and reverse break-up fees are allowed? What are the limitations on a company’s ability to protect deals from third-party bidders?
• •Other than through relevant competition regulations, or in specific industries in which business combinations are regulated, may government agencies influence or restrict the completion of business combinations, including for reasons of national security?
• •What conditions to a tender offer, exchange offer or other form of business combination are allowed? In a cash acquisition, may the financing be conditional?
• •If a buyer needs to obtain financing for a transaction, how is this dealt with in the transaction documents? What are the typical obligations of the seller to assist in the buyer’s financing?
• •May minority stockholders be squeezed out? If so, what steps must be taken and what is the time frame for the process?
• •How are cross-border transactions structured? Do specific laws and regulations apply to cross-border transactions?
• •Other than as set forth in the competition laws, what are the relevant waiting or notification periods for completing business combinations?
• •Are companies in specific industries subject to additional regulations and statutes?
• •What are the basic tax issues involved in business combinations?
• •What is the basic regulatory framework governing labour and employee benefits in a business combination?
• •What are the special considerations for business combinations involving a target company that is in bankruptcy or receivership or engaged in a similar restructuring?
• •What are the anti-corruption, anti-bribery and economic sanctions considerations in connection with business combinations?

Click here to download the project finance 2020 report, published by Getting the Deal Through.

The following 24 jurisdictions are covered in this report:

Angola; Armenia; Australia; Chile; China; Cyprus; Dominican Republic; England & Wales; Germany; India; Italy; Japan; Kenya; Korea; Mexico; Myanmar; Panama; Portugal; Sweden; Switzerland; Thailand; Turkey; United States; Vietnam.

The 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 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?

Foreign exchange and withholding tax issues

• •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?

Foreign investment issues

• •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?

Financial treatment of foreign investment

• •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?

Government authorities

• •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?

Regulation of natural resources

• •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?

Legal issues of general application

• •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?

Environmental, health and safety laws

• •What laws or regulations apply to typical project sectors? What regulatory bodies administer those laws?

Project companies

• •What are the principal business structures of project companies? What are the principal sources of financing available to project companies?

Public-private partnership legislation

• •Has PPP enabling legislation been enacted and, if so, at what level of government and is the legislation industry-specific?

PPP—limitations

• •What, if any, are the practical and legal limitations on PPP transactions?

PPP—transactions

• •What have been the most significant PPP transactions completed to date in your jurisdiction?

Click here to download the product liability 2019 report, published by Getting the Deal Through.

The following 11 jurisdictions are covered in this report:

Australia; England & Wales; France; India; Ireland; Italy; Japan; Korea; Nigeria; Switzerland; United States.

The set of questions relating to the topic of product liability and answered by the guide for each jurisdiction covered include:

Civil litigation system

• •What is the structure of the civil court system?
• •What is the role of the judge in civil proceedings and what is the role of the jury?
• •What are the basic pleadings filed with the court to institute, prosecute and defend the product liability action and what is the sequence and timing for filing them?
• •Are there any pre-filing requirements that must be satisfied before a formal law suit may be commenced by the product liability claimant?
• •Are mechanisms available to the parties to seek resolution of a case before a full hearing on the merits?
• •What is the basic trial structure?
• •Are there class, group or other collective action mechanisms available to product liability claimants? Can such actions be brought by representative bodies?
• •How long does it typically take a product liability action to get to the trial stage and what is the duration of a trial?