Committee publications

Post-event report: mergers and acquisitions in India: is India the last oasis of hope in a global slowdown?

This conference was based on the theme of M&A from an India-centric point of view. However, attendees benefitted from cross-jurisdictional insights on topics such as: environment, social and governance (ESG) factors; regulatory implications on deal-making; insolvency and bankruptcy; financial sponsors; and outlook on investments, divestments and generally how to bullet-proof deals.

Released on Jun 8, 2023

Webinar report: ‘How women can be rainmakers and control their destiny’

This article is a recap of the webinar titled ‘How women can be rainmakers and control their destiny’, which took place on 16 May 2023 and was presented by the IBA Law Firm Management Committee, with support from the IBA Women Lawyers’ Committee and IBA Young Lawyers’ Committee.

Released on Jun 7, 2023

Opinion: shareholder activism is the latest partisan battleground

As shareholders increasingly take action to address environmental, social and governance (ESG) issues at public companies, a reactionary movement has mobilised to oppose their efforts. This anti-ESG movement promises to fight back against what it views as ‘woke capitalism’ and its positions attempt to make an ideological statement rather than effect change at companies. Though anti-ESG proposals and board contests have yet to gain significant traction in the corporate setting, increased politicisation of shareholder activism will likely result in heightened tensions during proxy seasons to come.

Released on Jun 5, 2023

Limitations on claims for infringement of an EU protected plant variety

The article discusses the CJUE ruling of 14 October 2021 in case C-186/18 on limitations on claims for infringement of an EU protected plant variety right. The crux of the ruling was a determination of the date of counting a three-year period after which claims become time-barred – specifically, in reference to ongoing infringements. The conclusions of CJUE are compared to those of the Polish Supreme Court in a ruling concerning limitations on claims for infringement of an EUTM in which a different view of the ongoing nature of certain infringements of IP is taken.

Released on Jun 2, 2023

Genetically modified organisms (GMOs) and their application in Brazilian agriculture and consumer products

This article provides an overview of Brazilian law and regulation on genetically modified organisms (GMOs) and presents the most current legal discussions involving the use of GMOs in the food industry. The CTNBio and other surveillance authorities created a solid legal basis on biosafety for use of GMOs, however it is still a target of controversies by civil society and experts regarding risks to health and ethical issues.

Released on Jun 2, 2023

Leveraging Pro Bono Services for ESG Advancement in Pakistan’s Legal Sector

This article explores the link between law firms and ESG standards, assesses the prevalence of these standards in Pakistan, and discusses what steps can be taken to improve ESG compliance in the country, specifically for law firms.

Released on Jun 2, 2023

OPINION: Corporate criminal liability as a tool for mandatory human rights/ESG due diligence and disclosure – a missed opportunity

This article examines how the introduction of corporate criminal liability for environmental, social and governance (ESG)-related breaches would lead to an enhanced mandatory human rights due diligence and disclosure regime.

Released on Jun 2, 2023

AI-generated works: an IP headache?

The use of generative AI models, such as Midjourney, raises new and untested copyright issues. WIPO has identified numerous issues relating to copyright and AI, which warrant discussion.* This article addresses a few of the issues in respect of establishing copyright protection in the UK for AI-generated works under s 9.3 CDPA.

Released on Jun 1, 2023

Technology disputes in Australia 2022–23: emerging trends and managing risk

The dynamic nature of the digital environment with its lack of transparency and market complexity continues to challenge regulators, often making it difficult to detect issues and take enforcement action to deal with unfair trade practices, anti-competitive conduct and privacy and cybersecurity breaches.

Released on Jun 1, 2023

AI in Pakistani courts of law

A judge in a Pakistani court recently employed GPT-4, Open AI’s most advanced chatbot, to help render a judgment in a case. This decision sparked widespread debate regarding AI’s capabilities and the possibility of it replacing legal professionals, including judges. This article explores each aspect of the debate, as well as discussing the potential shortcomings and detriments of AI in a court of law.

Released on Jun 1, 2023

How to handle privileged communications in international arbitration

When parties come together to negotiate International Master Franchise Agreements they focus on royalty splits, development schedules and the boundaries of the territory granted to the master franchisee. Alternative dispute resolution provisions are usually only given little consideration, much less how privileged communications are to be handled if a dispute arises.

Released on Jun 1, 2023

The pros and cons of anti-sandbagging provisions in share and purchase agreements

Anti-sandbagging provisions in share and purchase agreements (SPAs) are designed to protect buyers and sellers from potential issues arising post-closing. But are they always beneficial for both parties? This article takes a closer look at the pros and cons of anti-sandbagging provisions from the perspectives of buyers and sellers.

Released on Jun 1, 2023

Virtual becomes reality: online formation of a German limited liability company

The German legislator has taken a step forward towards digitising German corporate law by introducing an online formation procedure for limited liability companies, which balances practical improvements and security needs. While the new procedure may help to save time and costs for certain non-German founders, the scope is limited, as only specific European identification documents are compatible and, furthermore, original (ie, paper) versions of certain documents are still required is some cases.

Released on Jun 1, 2023

Modern slavery in migration: Australia’s perspective

This article tackles the human trafficking phenomenon and the significant problem it represents in Australia.

Released on May 24, 2023

One year post-pandemic, how are the novel digital nomads regimes impacting workers' mobility?

This article explores the phenomenon of the digital nomad and how immigration regimes across the globe are trying to both accommodate – and perhaps belatedly regulate – the emerging cosmopolitan class of the nomad worker and their families.

Released on May 24, 2023

Character concerns in immigration processes in Australia

This article explores the concept of ‘good character’ in Australian immigration law and the role it plays in in determining whether visa holders can have their visas cancelled.

Released on May 24, 2023

Norway and the right to information under human rights principles

The Norway Transparency Act, a mandatory human rights due diligence law that came into force last year, includes a right to information. While the right to information is considered a part of freedom of expression, the right has previously applied only to states. Its inclusion in the Norwegian law has led stakeholders in Norway, as well as non-governmental organisations, investors, unions and others outside of Norway, to use the law as a discovery tool to obtain specific insights into global company programmes and issue management, and how salient risks are being addressed. While we have not yet seen other national governments or the EU adopt a similar provision, it is certainly something to watch.

Released on May 24, 2023

Survey on ESG public disclosures

This survey aims to assess how different jurisdictions regulate environmental, social and governance (ESG) disclosures and to determine whether and to what extent ESG disclosures are now mandatory due to prevailing regulatory trends and institutional investors’ demands.

Released on May 18, 2023

Workers (and executives) without borders – traps for the outwardly mobile taxpayer

The panel discussed the growth in recent years of nomad visas and permanent remote workers in a post-Covid world and the Organisation for Economic Co-operation and Development’s guidance on this topic. The panelists discussed practical considerations for remote workers and referred to recent case law and practices in Austria, Bulgaria, France, Switzerland and the United States.

Released on May 17, 2023

Cross-border considerations for direct lending platforms

This panel reviewed some of the most common structures for setting up direct lending platforms in a cross-border context, addressing the main tax implications for typical Irish investment vehicles, effectively connected income issues for United States tax purposes, and the United Kingdom qualifying asset holding company regime for debt structures. The panel also discussed the risk concerning permanent establishment from the perspective of Austria, Italy and Switzerland.

Released on May 17, 2023

The role of the competent authority proceedings and double taxation resulting from DSTs, minimum tax and other taxes

This panel discussed dispute resolution tools available to address double taxation, with a particular focus on competent authority proceedings. Considering that the best path for seeking relief can vary depending on the circumstances and jurisdictions involved, the panel addressed key strategies and practical considerations that advisors should be aware of from the perspective of practitioners in multiple jurisdictions.

Released on May 17, 2023

Cracks in the bricks: disruptions in the real estate market and the tax environment

The pandemic, political disruptions and increasing financing costs had and have a significant impact on the real estate market. At the same time, new tax rules have created further challenges for planning cross-border real estate investments. This session provided an overview of the recent developments regarding the relevant tax rules and the opportunities and constraints resulting therefrom, including the latest developments under the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (MLI), the upcoming third EU Anti-Tax Avoidance Directive, the United States Foreign Investment in Real Property Tax Act regulations, the interpretation of the Swiss Treaty Law on sales of real estate investment companies and similar Italian and Finnish legislation related to the MLI.

Released on May 17, 2023

Is my footprint big enough? Implementing ATAD 3 – substance requirements and impact on transatlantic investment structures

The subject of this panel discussion was the European Commission’s proposed Anti-Tax Avoidance Directive 3 (ATAD 3). The directive, also known as the Unshell Directive, is designed to combat tax avoidance and tax evasion practices. The directive is still in the process of being drafted. Topics included in the scope of the proposed directive concern gateways and substance indicators to be assessed, as well as reporting obligations and tax consequences for entities in the scope of the directive.

Released on May 17, 2023

Managing uncertainty in transfer pricing: evolving methods and current state of APA play

This panel discussed the sources of uncertainty in transfer pricing and the tools available to taxpayers to address that uncertainty. The tools for managing uncertainty were divided into two categories: reactive tools and proactive tools. Regarding reactive tools, the panel discussed audit settlement, administrative appeal or litigation, and mutual agreement procedure or arbitration. With proactive tools, the focus point was the advance pricing agreement (APA) procedure. The panel analysed the pros and cons of the different approaches and discussed what lies ahead for the APA landscape.

Released on May 17, 2023

Family holding structures in the US and Europe

This session provided an overview of what a modern family office might typically look like and discussed some of the functions and characteristics of family offices in general. Based on a typical family office structure (base case), the panelists discussed current issues and structuring trends for domestic family wealth platforms in Germany, Italy, Switzerland, the United Kingdom and the United States, with added gloss offered on the use of Cayman Island trusts. Afterwards, the international aspects were looked at, in particular issues arising when relevant parties or beneficiaries move out of the jurisdiction of the family office. To conclude, the panelists considered issues related to philanthropy, being often a part of or connected with the family office structure and the family business.

Released on May 17, 2023

Dual residency: identifying and solving common problems

The panel discussed a variety of selected issues with regard to dual tax residency, which can arise both in an income and estate/inheritance and gift tax context. As tax residence is determined under the highly diverse domestic tax laws of each jurisdiction, a person can qualify as a tax resident in more than one jurisdiction at the same time. In this situation, so-called tie-breaker rules in bilateral tax treaties may resolve this issue. If there is no such treaty, the resolution depends solely on the respective provisions of national tax law. The panel focussed on the interaction of United States tax law with that of France, Italy, Malta, Spain, Switzerland and the United Kingdom, respectively.

Released on May 17, 2023

Tax aftermath of the crypto winter

The panel provided valuable insights into the ever-changing cryptocurrency landscape. A key topic discussed was the development of regulations and transparency rules by the Organisation for Economic Co-operation and Development, with a focus on the recently published Crypto-Asset Reporting Framework. Additionally, the panel delved into the evolving tax regulations in Austria, Portugal, Spain, Switzerland and the United States. Finally, the panel addressed distressed situations in the realm of cryptocurrencies, specifically discussing the impact in the US of the bankruptcy of FTX and other lending platforms.

Released on May 17, 2023

Advancing the Rule of Law: A Fireside Chat with the Presidents of the IBA and ICC Court

Released on May 12, 2023

Japan: launching an ESG grievance mechanisms platform and the role of lawyers

In 2022, the Japan Centre for Engagement and Remedy on Business and Human Rights (JaCER) was established to provide a platform of corporate grievance mechanisms for addressing ESG issues and human rights abuses. As of 2023, more than 20 Japanese major companies from various sectors participate in JaCER. This article explains why JaCER was established, how JaCER aims to increase the effectiveness of grievance mechanisms, and how lawyers can contribute to it.

Released on May 11, 2023

The role of ESG factors in shaping M&A deal value and reputation

This article discusses how environmental, social and governance (ESG) factors and human rights considerations are increasingly influencing mergers and acquisitions (M&A) deals worldwide, and the importance of an ESG focus on due diligence, integration and disclosure throughout the transaction process. The article explores: the impact of ESG and human rights factors on deal value and corporate reputation; the nature of ESG due diligence; incorporating ESG factors into M&A transaction documents; and best practices for ESG and human rights disclosure in M&A transactions.

Released on May 11, 2023