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Committee publications

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How Brazil regulates Open Banking

‘Open Banking’ refers to an open, interoperable and permeable platform for the sharing of information about financial assets, goods and rights held by account holders and investors who use the services of the capital and financial markets, including payment services. This article details its regulation in Brazil.

Released on Nov 25, 2021

India's Securities and Exchange Board amends norms to boost IPO market

This article provides an overview of the key changes introduced in the Amendment. Certain additional changes, which were proposed under the Consultation Paper and approved by SEBI in its board meeting held on 6 August 2021 (‘Board Meeting’) but which have not yet been notified, are also discussed below.

Released on Nov 25, 2021

Pegasus project – a conspectus of laws of surveillance and the concerns over privacy

The Pegasus Project investigation was brought to light by the Paris-based, non-profit media group, Forbidden Stories and Amnesty International. The reports have revealed a widespread misuse of NSO Group Technologies’ spyware, Pegasus. As per NSO, Pegasus was developed to be sold exclusively to vetted governments to aid law enforcement agencies and intelligence departments to fight crime and avoid terrorism. Yet, according to the leaked data, the spyware was being used as hacking software instead of its conventional use as a surveillance tool.

Released on Nov 25, 2021

Sandoz and the journey thereafter: a re-examination of the status of sales promotion employees under the industrial relations regime in India

India has a strong labour-centric protectionist regime under the Industrial Disputes Act 1947 (‘ID Act’), which applies to the ‘workman’ category of workforce. The issue of coverage of sales promotion employees within the purview of ‘workman’ has been inadequately addressed, notwithstanding the legislative developments intended to cover such employees directly under the ID Act. This article discusses the issue and the relevant legal developments, while also highlighting the limited role played by the judiciary in addressing the question.

Released on Nov 25, 2021

From the Co-Chairs - Arbitration Committee, November 2021

We are pleased to share with you this Special Issue focused on Africa. The Edition features a total of 14 articles, written by some of the most prominent practitioners from and/or practicing on the African Continent, on topics that are at the forefront of the legal profession in Africa today.

Released on Nov 24, 2021

Editors' Note - Arbitration Committee, November 2021

Arbitration in Africa has grown exponentially over the last decade. Many African countries are now parties to the New York Convention, and many more have embraced arbitration as a viable form of dispute resolution. There is also an increasing number of arbitration disputes arising from the continent because of the significant foreign investments made in Africa. This edition of the newsletter is an ode to, and acknowledgement of, the remarkable contributions that Africa-related disputes are making to the growth of arbitration.

Released on Nov 24, 2021

Commercial disputes under AfCFTA area: the case for regional African arbitral centres

This article argues for the use of arbitration before identified regional arbitration centres in Africa, for the resolution of intra-African private commercial cross-border disputes that will arise from the implementation of the African Continental Free Trade Area (AfCFTA)

Released on Nov 24, 2021

Trade and foreign direct investment stimulus in Africa: impacts on dispute resolution

The recently enacted African Continental Free Trade Area agreement (AfCFTA) promises to boost economic recovery on the African continent by establishing a large-scale trade and investment single market encompassing nearly all African countries. AfCFTA’s Investment Protocol remains under discussion and is expected to modernise investment protections available to foreign investors operating in Africa by providing a more balanced set of applicable rules.

Released on Nov 24, 2021

English Court of Appeal rules that Privinvest can go to arbitration over ‘hidden debt scandal’ bribery allegations: clarifies test for stay of proceedings for arbitration

The Court of Appeal, in favour of five companies within the Privinvest Group and against the Republic of Mozambique, has overturned the decision of the Commercial Court in the litigation arising out the ‘hidden debt’ scandal. It ruled that, where parties have entered into an arbitration agreement, their disputes falling within the arbitration agreement should not be decided in the courts, regardless of nature and including connected allegations of bribery. The decision is important to advisers and companies involved in international arbitration and litigation

Released on Nov 24, 2021

Third-party funding in Nigeria-seated arbitration proceedings

Third-party funding in arbitration proceedings has become a recurring theme across the world. It is an arrangement where a non-party to arbitration proceedings provides finances that cover the legal costs and/or expenses of a party in exchange for proceeds from the resulting award. This note provides an overview of third-party funding in Nigeria, drawing attention to its status under extant laws and to provisions relating to the arrangement in a proposed arbitration bill

Released on Nov 24, 2021

Regional integration and the African Continental Free Trade Agreement: from parallelism to harmonisation

The African Continental Free Trade Area agreement (AfCFTA) is one of the most ambitious and progressive trade agreements concluded in recent years. Proper implementation is key to its success, however. One notable obstacle to the agreement is the fragmented trade and regulatory landscape against which it has been negotiated. Member states of AfCFTA are party to a plethora of regional trade agreements and economic communities with differing approaches and degrees of integration, which creates a risk of inconsistency, increased compliance costs and inefficiencies for member states and businesses alike. This article explores how Article 19 of AfCFTA tackles this fragmentation by providing a mechanism for harmonisation while preserving higher levels of regional integration

Released on Nov 24, 2021

Mediating disputes for African state parties: the way forward for intra-Africa trade under AfCFTA

The African Continental Free Trade Area agreement (AfCFTA) provides for a dispute settlement protocol that addresses the dispute resolution options for state parties with no corresponding provision for non-state parties. There is a chance to address this gap in the ongoing negotiations on an Investment Protocol to AfCFTA. This article seeks to analyse the advantage of having mediation and med-arb as options for non-state parties under AfCFTA through the Investment Protocol.

Released on Nov 24, 2021

Challenges with recognition and enforcement of arbitral awards in Africa

Arbitration has become the preferred option for dispute resolution in cross-border commercial transactions in Africa. Many African countries, including Kenya, have signed and ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This article provides a detailed analysis of the challenges that have bedevilled the recognition and enforcement of awards in Africa, with a particular focus on the Kenyan experience. This article concludes by providing an assessment of the impact that the challenges bedevilling the recognition and enforcement of awards has on the role of arbitration, taking into account cross-border commercial transactions, and providing recommendations on the way forward.

Released on Nov 24, 2021

A review of recent efforts to modernise commercial arbitration practice in Africa

Recently elected governments in Ethiopia and Tanzania have overseen sweeping reforms to their arbitration laws with a view to boosting investor confidence and improving domestic arbitration practice. Meanwhile, Nigeria has established a committee to explore ways in which the existing arbitration laws can be improved. In addition, arbitral institutions across Africa have adopted new rules to ensure that they can administer the major influx of cross-border arbitration references that are expected following the recent entry into force of the Africa Continental Free Trade Area (AfCFTA) agreement.

Released on Nov 24, 2021

21st century investment protection: Africa’s innovations in investment law reform

Many African states see foreign direct investment as a key means to help rebuild in the wake of the triple storm of climate change, the Covid-19 pandemic and economic recession. Various innovations in investment treaty reform by African states have the potential to ensure that the laudable goal of attracting foreign investment aligns with critical interests in promoting sustainable development and avoiding costly international arbitrations.

Released on Nov 24, 2021

Turning back time on time bars?

This article is a brief snapshot of the South African case of Samancor Holdings (Pty) Ltd and Others v Samancor Chrome Holdings (Pty) Ltd and Another. In this case, the South African Supreme Court of Appeal was tasked with ascertaining whether the court a quo had legally and factually overstepped by granting the respondents an extension of time to commence arbitration proceedings against the appellants, despite a six-year time-barring provision. We also dive deeper into a comparative analysis of the position in Kenya and the possible call for amendment under the Kenyan Arbitration Act.

Released on Nov 24, 2021

International arbitration in Mauritius: country update

Mauritian judgments generally uphold arbitral awards delivered in international arbitrations. The decisions in Betamax v State Trading Corporation and Essar Steel v ArcelorMittal USA confirms the approach of Mauritian courts that challenges to awards will not easily succeed, particularly when they are grounded on alleged contravention to public policy. With the decision of Betamax handed down by the Judicial Committee of the Privy Council, overturning a decision of the Supreme Court of Mauritius which had set aside the award in that case, there is now no reported judgment in Mauritius where a losing party has been able to successfully challenge an international arbitration award.

Released on Nov 24, 2021

Act No. 028/PR/2020 on the Code of Civil, Commercial and Social Proceedings and arbitration law in Chad: the chronicle of an ineffective legal reform

The introduction of new provisions in the Code of Civil, Commercial and Social Proceedings devoted to arbitration-related matters is an important step in implementing the Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA) arbitration law in Chad. However, this Code fails to address all aspects of arbitration-related matters. In particular, it fails to adequately distinguish between arbitration at the domestic and international levels. This article discusses this legal reform and makes proposals to restructure arbitration law in Chad to improve the attractiveness of the Chadian arbitration market.

Released on Nov 24, 2021

The indirect reforms and regulations of third-party funding in African arbitration

The use of third-party funding of arbitration is increasing because it assists in facilitating claims that have merit but would otherwise not be pursued due to the significant cost of arbitration. Despite its attractiveness, and increasing use in international arbitration, African countries are yet to allow third-party funding of arbitration by enacting legislation for its applicability. This article appraises the efficacy of the indirect attempts introduced by Nigeria, Ghana, and South Africa to regulate the third-party funding of arbitration.

Released on Nov 24, 2021

Once challenged, should an arbitrator withdraw? A consideration of Nigerian jurisprudence

In a recent decision, the High Court of Lagos set aside an arbitral award entered against Global Gas and Refinery Limited (GGRL) and in favour of Shell Petroleum Development Company (SPDC), on the grounds that the president of the tribunal fell short of the required standard of disclosure by omitting to disclose his participation as an expert in an earlier (unrelated) litigation involving the parent company of SPDC. The Court held that the president of the tribunal was obliged to recuse himself once his appointment was challenged, even where the arbitral institution under whose auspices the arbitration was being conducted (the International Court of Arbitration of the International Chamber of Commerce (ICC)), had dismissed the challenge. The GGRL decision has generated much controversy.

Released on Nov 24, 2021

Procedure and supporting documentation for application to the Greek non-dom taxation regime

Article 5A of Law 4172/2013, which applies from the 2020 tax year onwards, states that an individual who transfers their tax residence to Greece using the new procedure outlined in this article can be subject to an alternative method of taxation for income generated abroad.

Released on Nov 24, 2021

ESG concerns are disrupting boards’ agendas and executives’ responsibilities: practical reasons for thinking broadly

Recent macro themes have created a wave of ESG expectations. Boards and senior executives must be aware of them and, until legal tools provide more certainty, must keep an open mind as to the alignment of ESG goals and corporate strategy.

Released on Nov 19, 2021

The current status of virtual assets regulation in Uruguay

This article examines the current situation of virtual assets in Uruguay, the creation of a regulatory framework, the position of the Central Bank and the recent developments in the political system.

Released on Nov 17, 2021

Patterns of regulatory initiatives amid funding stimulus and preservation of resilience

A report on a webinar, the second in an ongoing series organised by the Banking Law Committee regarding the impact of the pandemic in the financial arena. The webinar examined: how regulation and its implementation have been wielded to strike a balance between stabilising the economy while also aiming to maintaining banks’ robustness through their loan portfolios; how regulated institutions have behaved in this environment; and what regulation’s role is in planning for a ‘return to normal’.

Released on Nov 17, 2021

The transposition deadline for the Omnibus Directive

The transposition deadline for the Omnibus Directive is quicky approaching and a draft law has been released in Romania for its implementation. This includes several amendments which appear to be exceeding the framework regulated by the Omnibus Directive, boosting consumer protection in the context of unfair terms legislation.

Released on Nov 17, 2021

Fintech and ESG: a desirable crossover

Environmental, social and governance (ESG) factors have been a key driver of change and a main point of discussion in the last few years – as has financial technology (Fintech). This article takes a closer look at these two forces of transition to see how they may impact each other and trigger new ways of doing (sustainable) business.

Released on Nov 17, 2021

The possible implementation of a fast-track registration procedure for placement of asset-backed securities in Peru

Together with the Association of Securitization Companies the authors have prepared and presented the Peruvian Superintendency of the Securities Market with a project to modify the regulations of the Institutional Investors Market so that said market would be open for the placement of asset-backed securities. This article details the background to the proposal.

Released on Nov 17, 2021

Fraud and abuse of right affecting the enforcement of a pledge: recent court developments under Luxembourg law

A recent decision handed down on 22 January 2020 by the Luxembourg Court of Appeal is relevant for banking and finance practitioners as it concerns the attempts made by a pledgor to overturn the enforcement of pledges. This article explores the judgment.

Released on Nov 17, 2021

Neobanks in India: here to stay

This article seeks to examine the existing regulatory framework governing neobanks in India; their business models, challenges and opportunities for their growth, and comparisons with cross-jurisdictional developments in this segment.

Released on Nov 17, 2021

El Salvador: a global regulatory sandbox for Bitcoin as a legal tender

On 9 June 2021, El Salvador’s Legislative Assembly approved The Bitcoin Law, which provides the first legal framework in the world to give a crypto asset – in this case Bitcoin –legal tender status.

Released on Nov 17, 2021