Committee publications

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Giving regulatory due diligence its due

Despite the pandemic, life sciences companies have remained active in corporate transactions, which provides much needed funding to incentivise and develop new technologies in this space. This article emphasises the key role that regulatory diligence plays in the decision to make this investment, and particularly in the US, the need to remediate any issues identified in that diligence to avoid potential exposure.

Released on Oct 1, 2021

Electronic medical records in Brazil: the pursuit of balance between healthcare improvement and patient data protection

Electronic medical records (EMRs) facilitate everyday activities in healthcare institutions by making patient-related data access easier and more flexible. EMRs may also represent an important tool for improvement of healthcare due to its enormous potential for data gathering and analytics. This article analyses a possible tension between healthcare enhancement through the adoption of EMRs and the Brazilian legal framework for the protection of health-related personal information and the search for balance.

Released on Oct 1, 2021

Software as a medical device in Brazil: a bird’s-eye view of the current legal framework and prospective regulation

In recent years, medical device regulatory bodies have recognised software as a medical device as a subgroup of medical devices meriting a specific set of rules. In Brazil, even with the massive introduction of these products in the market lately, there is still no specific set of rules applicable to them. This article analyses the current regulatory scenario and the perspectives for a new regulation.

Released on Oct 1, 2021

Unilateral termination clauses without cause in collaborative R&D agreements governed by French law are lawful

A recent development in French contract law emphasizes the parties’ freedom of contract and calls for vigilance when negotiating important agreements.

Released on Oct 1, 2021

Enforcement of security interests and repossession of aircraft in Norway – a brief practical note

This article outlines the legal position of enforcing security interests and repossessing aircraft in Norway, and to lenders who have a security interest in such aircraft.

Released on Sep 29, 2021

Returning to in-person business development? August 2021

This article examines the prospect of returning to in-person business development, as some jurisdictions start going back into the office and others rethink office plans in the face of further waves of Covid-19.

Released on Sep 23, 2021

Responsible mining opportunities and laws in Myanmar

Mining remains the most untapped sector in Myanmar. With the introduction of laws that more closely mirror international standards and a more generally investor-friendly regime and legal framework, the Myanmar mining sector is poised to swiftly enter the ranks of big resource producing nations.

Released on Sep 21, 2021

Recent developments in Brazilian mining regulations – licensing, tailings dams and mine closures

The mining sector is one of the most strategic and essential to the development of the Brazilian economy, but also one of the most complex. It was the last to have a regulatory agency and after a long period of discussions and challenges new rules are finally being issued to promote its development.

Released on Sep 21, 2021

The requirement for empowerment in the South African mining sector: looking for legal certainty from the courts

South Africa is a country rich in minerals and the mining sector plays a pivotal role in the economy. Bringing about legal certainty and finality on the requirements for empowerment in the South African mining sphere is an issue that is highly anticipated.

Released on Sep 21, 2021

The new Portuguese regulation on mineral deposits

This article addresses the entry into force of Decree Law No 30/2021, of 7 May, proceeding with the regulation of Law 54/2015, of 22 June, which establishes the legal framework on mining activities in Portugal, including prospecting, exploration and exploitation of geological resources.

Released on Sep 21, 2021

Book review: The Law and Governance of Mining and Minerals: A Global Perspective

In her ambitiously conceived recent book, The Law and Governance of Mining and Minerals: A Global Perspective, Dr Ana Elizabeth Bastida offers important and welcome new paradigms for contemporary studies and teachings about international mining law and governance.

Released on Sep 21, 2021

Whistleblowers as John Does: preserving their identity while conducting internal investigations

Coming forward with information that could get someone into trouble has never been easy. To remedy this, states have been increasing their efforts to encourage whistleblowers to report wrongdoings by ensuring their protection from retaliation,1 which, up until recently, has been scarcely regulated, particularly in the European Union.2 The need to enhance the protection of whistleblowers has been thrown into the spotlight as a result of a series of scandals (such as the Panama Papers,3 Cambridge Analytica and Danske Bank scandals) in which whistleblowers played a key role.

Released on Sep 20, 2021

Smart worker injury and employer’s criminal liability

A few weeks ago, for the first time ever, INAIL granted compensation for damages on behalf of an Italian smart worker, who was injured while she was working from her own home. In the specific case, the employee fell disastrously down the stairs of her own home during a phone call with her colleague. The accident was very severe and caused her several fractures.

Released on Sep 20, 2021

Game changer in the Ukrainian law enforcement system

For a long time, there were several inspection authorities in Ukraine for financial crimes investigations; namely, the Security Service of Ukraine, the tax police, and the national police. Lately, this finally has been changed by the adoption of the Law of Ukraine ‘On the Bureau of Economic Security of Ukraine’ (hereinafter ‘the Law’) in March 2021.

Released on Sep 20, 2021

Corruption risks in the use of agents in public procurement in India

The complexity and technicalities inherent in public procurement in India create an opportunity for agents or middlemen, as there is scope for those familiar with the convoluted process to assist bidders in navigating the process. While there is no blanket ban on the use of agents, it is very easy to cross over the amorphous border between what is allowed and what is illegal, and the high financial stakes coupled with the multiple touchpoints with public officials exacerbate the risk of influence peddling and corruption.

Released on Sep 20, 2021

A French law perspective on blockchain technology

Blockchains could enable a world, without intermediaries such as lawyers, brokers and bankers, to store, share, protect, tamper and review business relationships. This breakthrough makes the blockchain a foundational technology, having the potential to create new grounds for the economic, legal, and social systems.3 In that respect, the blockchain technology could have major impacts on French Law in the near future.

Released on Sep 20, 2021

Returning to in-person business development? Business Development and Marketing Subcommittee guide, August 2021

This article examines the prospect of returning to in-person business development, as some jurisdictions start going back into the office and others rethink office plans in the face of further waves of Covid-19.

Released on Sep 15, 2021

IBA Aviation Law Committee: Meet and Greet

With a view to facilitate discussions and increase networking, the International Bar Association (IBA) Aviation Law Committee (ALC) organised its first virtual Meet and Greet event on Thursday 29 July 2021 via Zoom under the dynamic leadership of Ms Serap Zuvin, the Chair of ALC. The event was well attended with participation from a large number of lawyers from the aviation industry.

Released on Sep 6, 2021

BDRs and the market for foreign shares in Brazil

The article provides an overview of the Brazilian Depositary Receipt market, its regulation and prospects, in light of recent offerings of these securities in the Brazilian market and the amendments proposed to the relevant regulation by the Brazilian Securities and Exchange Commission.

Released on Sep 6, 2021

Will foreign investment advisers be required to register in Chile?

A new law will regulate independent investment/financial advisory services in Chile for the first time, but there is some confusion as to its scope.

Released on Sep 3, 2021

Developments in Ireland's fund servicing landscape

This article summarises the ways in which the fund servicing market in Ireland has gone through a period of change and evolution, for example with recent years seeing increasing levels of consolidation among international fund service providers with Irish operations.

Released on Sep 3, 2021

Regulating the cross-border distribution of collective investment undertakings in the EU: the example of Luxembourg

On 2 August 2021, Directive (EU) 2019/1160 on the cross-border distribution of collective investment undertakings (the 'CBDF Directive') and the associated Regulation (EU) 2019/1156 entered into force in the EU. In Luxembourg, a law dated 21 July 2021 implements the CBDF Directive. Moreover, the Commission de Surveillance du Secteur Financier, the regulator of the Luxembourg financial sector, published Circular CSSF 21/778 and a Q&A, as well as additional information on its website. This article summarises the impact of these new rules on the distribution of funds.

Released on Sep 3, 2021

The upcoming regime for marketing foreign funds to retail investors in the UK

Twin pressures – the need to recognise EU funds and the pressure to be open to international investment – have led the UK post-Brexit to the conclusion that the current regime for recognising non-UK funds for sale to UK retail investors is inadequate. The solution is the creation of a new overseas funds regime that is streamlined and yet provides for the UK’s Financial Conduct Authority to have sufficient scrutiny of fund applications. More contentious in the new regime is the political 'overlay' that gives the UK's political authorities wide discretion to decide on country and fund type regulatory equivalence.

Released on Sep 3, 2021

Switzerland: new rules for asset managers under the Financial Services Act

This article outlines the main obligations of a provider of financial services under the new financial legislation that entered into force in Switzerland on 1 January 2020.

Released on Sep 3, 2021

Guidelines and Regulations to Provide Insights on Public Policies to Ensure AI’s Beneficial Use as a Professional Tool

The Artificial Intelligence Working Group of the IBA Alternative New Law and Business Structures (ANLBS) Committee presents a comprehensive, up to date guide to the use of artificial intelligence as a professional tool, covering the main multilateral organisations and nine jurisdictions worldwide.

Released on Sep 2, 2021

The Corporate Transparency Act: what business owners need to know

US companies will soon face new reporting requirements under the Corporate Transparency Act (CTA). This article looks at the new law which will require entities identified as reporting companies to provide information about their beneficial owners. If reporting companies fail to disclose the necessary information, then they could face both severe civil and criminal penalties.

Released on Aug 26, 2021

Real Estate M&As and change of control clauses in lease contracts

The article addresses which matters to pay attention to in due diligences regarding change of control clauses in commercial leases where the target company is a tenant.

Released on Aug 24, 2021

Draft data centre policy of India 2020: an overview

Although there has been a phenomenal growth in the data centre sector in India with the advent of many local and foreign players, the sector is still at its nascent stage and suffers from few impediments. The Indian government has released the Draft Data Centre Policy 2020 which aims to counterpoise these challenges, and many states have introduced or are in the process of introducing their own data centre policies as well.

Released on Aug 24, 2021

Contracts as the ‘make or break’: delays of construction projects

Current raw material shortages are affecting costs and the timing of construction projects. The key to managing these issues are contractual provisions, which this article discusses.

Released on Aug 24, 2021

Trade Remedy Trends in Mexico

Despite not having amended the International Trade Law since 2006, or its regulations since 2014, Mexico has recently developed new practices in its trade remedy investigations. This article considers the International Trade Practices Unit of the Ministry of Economy and its determinations within antidumping investigations and/or orders, and those most relevant to discuss the consideration of China as a market economy and the use of foreign costs.

Released on Aug 20, 2021