Committee publications
From the Editor, Law Firm Management Committee, December 2020
A message from the Editor of the Law Firm Management Committee, December 2020.
Legal advisers and the transition to a sustainable economy
One of the many lessons of 2020 will be that a sustainable and inclusive economy – that promotes positive, long-term economic, environmental and social outcomes – requires cooperation, engagement and innovation from all stakeholders. Legal advisers have an important role to play in this economic transition by supporting business decision making to consider longer-term time horizons and the spectrum of environment, social and governance (ESG) issues holistically.
The rise to prominence of mandatory human rights due diligence binding multinationals
By Sarah Reilly, Julia Velho and Julie Zorrilla. The rise to prominence of mandatory human rights due diligence binding multinationals - Criminal Law/Business Crime Committees
The role of the criminal lawyer in the area of corporate fraud
By Andrea Puccio. The role of the criminal lawyer in the area of corporate fraud - Criminal Law/Business Crime Committees, December 2020
What is dead may never die: transfer of criminal liability from absorbed company to absorbing company following a merger
By Emmanuel Moyne, Nima Haeri and Hubert Pouradier-Duteil. What is dead may never die: transfer of criminal liability from absorbed company to absorbing company following a merger
Law relating to the Securities and Exchange Board of India (Settlement Proceedings) Regulations 2018
By Sanjay Buch and Devanshi Nanavati. Law relating to the Securities and Exchange Board of India (Settlement Proceedings) Regulations 2018
‘Auto-bearings’ and ‘CBB’: the peculiar story of a cartel duo
By Anisha Chand and Swati Bala. ‘Auto-bearings’ and ‘CBB’: the peculiar story of a cartel duo - Asia Pacific Regional Forum, December 2020
Transitioning from LIBOR – the road ahead for the Indian banking sector
By Nand Gopal Anand, Ankit Sinha, Harshit Dusad and Garima Parakh. Transitioning from LIBOR – the road ahead for the Indian banking sector - Asia Pacific Regional Forum, December 2020
Success rate of the ‘nanny state’ approach in consumer protection and financial system stabilisation regulation – does it work?
In this session at the IBA 2020 -- Virtually Together conference, five expert panellists shared perspectives and comments on the following four topics: the current state of effectiveness of regulators regarding consumer protection in capital and financial markets; using technology to protect the markets and control abuse; diving into financial literacy; and data gate-keepers.
The Indian insolvency regime: recent amendments under the Insolvency and Bankruptcy Code 2016
The article aims to collate and provide a broad view on the recent amendments to the Insolvency and Bankruptcy Code 2016
The right culture - what does this mean and how can we shape the culture for the future?
Up until spring of 2020, stories abounded in the legal and lay press about the toxic culture in the legal profession. Mental health issues were on the rise, bullying and harassment were all too common, and lawyers were working to the point of burnout. This session explored these issues from different perspectives: the young lawyer, the female lawyer, the senior lawyer and the sole practitioner in a developing country.
Fighting bias in the age of machine learning and artificial intelligence
Continuing developments in machine learning and artificial intelligence (AI) have raised concerns that algorithms may be unfairly or even illegally biased. This session allowed participants to hear from and interact with leading specialists in the fields of machine learning and AI as they intersect with ethics and the law, in order to understand if eliminating bias in machine learning is possible or even desirable from a technical standpoint.
The UK’s National Security and Investment Bill
On 11 November 2020, ministers introduced the National Security and Investment Bill in the UK House of Commons. The Bill provides for a Committee on Foreign Investment in the United States (CFIUS)-style regime, granting the UK Government powers to scrutinise and intervene in a number of business transactions (for example, takeovers) on national security grounds.
Documents to review before accepting a deed of guarantee provided by a PRC company - CWG
It is common in a cross-border M&A transaction for the foreign vendor to require a Chinese purchaser to provide a deed of guarantee with the transaction documents as a security to the vendor for the purchaser’s obligations. Other than requiring a deed of guarantee executed by the guarantor with the signature by its legal representative and company stamp, what other documents are required to be checked and reviewed in order to make sure that the deed of guarantee is enforceable according to the Chinese law?
Contract termination in the Civil Code - CWG
On 28 May 2020, the National People’s Congress of the People’s Republic of China approved The Civil Code of the People’s Republic of China (Civil Code). The Civil Code will come into force on 1 January 2021.
New collective action system in the Netherlands
On 1 January 2020 new legislation came into force in the Netherlands, introducing a comprehensive system for dealing with collective actions. It holds out the prospect of substantial advantages to groups of people injured by the same event, as well as the person or entity held liable to resolve claims in a single collective action.
Class action in Belgium: the People v Large Companies?
Initially limited to consumers’ claims, since 1 June 2018 Belgium’s class action legislation has been extended to SMEs which can now also file class action lawsuits against large companies.
Proposals to consolidate and reform Brazil’s class action system
This article provides a summary of the two bills proposing the consolidation and reform of the class action in Brazil which were presented to the Congress in 2020 (Bill Nos. 4441/2020 and 4778/2020).
Can force majeure apply against enforcement of bank guarantees? The Delhi High Court’s analysis
The Covid-19 pandemic has caused widespread disruption in regards to the performance timelines of contracts, projects and deliverables. This article looks at the Indian law on injunctions on enforcement of bank guarantees in light of the pandemic, by analysing the case of Halliburton Offshore Services Incorporated v Vedanta Limited and Anr in the Delhi High Court.
Why Brazil proposes a reform of its foreign exchange regulation
The Central Bank of Brazil is preparing a significant reform of the country's foreign exchange regulation, which aims to simplify the current laws and regulation. The old rules, which are still in force, reflect the previous governmental concern about foreign exchange control and the impact on the daily operation and currency flows of the market. The intention behind the reform is to grant to foreign capital the same legal treatment offered to local capital under equivalent conditions.
Colombia’s Council of State sets aside an international arbitral award
On 27 February 2020, the Colombian Council of State set aside an international arbitral award under Law 1563 of 2012 (the ‘Arbitration Statute’) for the first time, citing departure from the procedure agreed by the parties.
The next wave of ISDS cases could be ‘powered’ by recent policy changes in the renewable energy sector in Mexico
Turbulent times lay ahead for private investors in the renewable energy sector in Mexico. Due to mounting policy changes by the federal administration over the past couple of years, some already speak of the death by a thousand cuts of the privately-owned renewable energy projects in Mexico.
Amendments to the Peruvian Arbitration Act: The good, the bad and the ugly
In order to standardise the applicable law regarding international arbitration, various countries modernised their arbitration regulation by basing them on the 2006 UNCITRAL Model Law on International Commercial Arbitration. Peru was not the exception to this trend as, in 2008, the Peruvian Arbitration Act, Legislative Decree No 1071 was promulgated.
Arbitration in Mexico: Three noteworthy developments
The Mexican Judiciary has recently issued salutary judgments regarding the enforcement of arbitration agreements and awards. This article summarises and comments upon them.
Arbitrability of disputes between apps and drivers in Uruguay
On 3 June 2020, a Court of Labor Appeals in Uruguay rendered the first local decision on enforcement of an arbitration provision between Uber and a driver using its app.
AI arbitrator selection tools and diversity on arbitral panels
Advances in artificial intelligence (AI) have led to the rise of products aimed at facilitating the work of international arbitration practitioners. This article discusses the question of diversity in international arbitration and whether AI technology can help to bridge the diversity gap apparent in arbitral tribunals.
The IBA Rules and US courts
The IBA Rules on the Taking of Evidence in International Arbitration (the ‘Rules’ or ‘IBA Rules’) have enjoyed considerable success as the pre-eminent set of evidentiary standards in international arbitration. The application of the Rules throughout the world indicates that most arbitrators, counsel and parties find them to be both useful and reflective of good practice, but can the same be said of courts sitting in review of arbitration-related matters?
US Supreme Court concludes that non-signatories to arbitration agreements can compel international arbitration
Advances in artificial intelligence (AI) have led to the rise of products aimed at facilitating the work of international arbitration practitioners. This article discusses the question of diversity in international arbitration and whether AI technology can help to bridge the diversity gap apparent in arbitral tribunals.
Third party funding regulation in Australia
Third party funding (TPF) provides greater access to justice in both arbitration and litigation. It allows the funded party to pursue a claim that otherwise, arguably, it would not be able to pursue. In England and Wales, TPF is voluntarily regulated through the Association for Litigation Funders (ALF). At the time of writing, there are no inquiries into law reform in relation to regulating TPF in the United Kingdom, however, in Australia, TPF regulation is fast approaching.
IBA partners with Jus Mundi to provide access to non-confidential international commercial arbitration awards
In 2018, the IBA Arbitration Committee created a Subcommittee on International Commercial Arbitration Case Law with the task of collecting international commercial arbitration decisions and awards and to periodically publish reports about international arbitration case law on legal issues of importance to the international arbitration community.