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Committee publications

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An update on the ERF Mental Wellbeing Working Party

If we did a poll asking about the quality of the working environment within the practice group in which you work, what would be your response and the response of the other individual members of your group? More specifically what would be the response if you were asked to rate this working environment in creating a high performing team that cultivates a strong sense of connection/engagement with co-workers and a shared vision whilst supporting the mental wellbeing of its members?

Released on Sep 8, 2022

Digital assets: how to decipher a cryptic phenomenon?

The panel on digital assets at the 37th International Financial Law Conference in Venice was co-chaired by Dirk Bliesener, Vice-Chair of the IBA Banking Law Committee and partner at Hengeler Mueller in Frankfurt, and Benjamin Leisinger, member of the IBA Securities Law Committee and partner at Homburger in Zurich. It began by examining some of the fundamentals of crypto markets and the different asset standards.

Released on Sep 7, 2022

The Merchant of Venice: Shylock’s appeal

At the 2022 International Financial Law Conference in Venice, delegates crowded the Appellate Chamber of the Venetian Republic to bear witness to a legal occasion hundreds of years in the making: Shylock’s appeal.

Released on Sep 7, 2022

Are stock-for-stock public offers feasible in spite of burdensome prospectus regulations?

A report on a joint session of the Banking Law Committee and the Securities Law Committee at the 37th International Financial Law Conference in Venice. The session began with a case study of an M&A transaction involving a listed acquirer and the (partial) payment of shares in the listed entity as consideration.

Released on Sep 7, 2022

Young Lawyers’ Programme – Decentralised finance: unlimited applications and a huge challenge for traditional financial infrastructures

This panel discussion, at the 37th International Financial Law Conference in Venice, was devised to attract young lawyers’ interest with an informal combination of different perspectives and experiences on one of the most exciting financial topics nowadays, ‘decentralised finance’ or the so-called ‘crypto universe’, which has unlimited applications and represents a huge challenge for traditional financial infrastructures.

Released on Sep 7, 2022

Diversity session (37th International Financial Law Conference)

A report on a joint session of the Banking Law Committee and the Securities Law Committee at the 37th International Financial Law Conference in Venice, on the theme of diversity and inclusion.

Released on Sep 7, 2022

Private equity: the rise of ESG considerations

This article discusses environmental, social and governance (ESG) and investment decision-making, the factors to be considered, and the key ESG considerations for private equity decision making.

Released on Sep 5, 2022

Letter from NARF Chair – September 2022

Released on Sep 5, 2022

Digital businesses and analogue challenges: start-up losses incurred in web-based businesses

The application of traditional tax rules is strained by the extension of internet technology to virtually every facet of business and our personal lives. In Kellett v Commissioner, the United States Tax Court updated traditional rules regarding the deductibility of start-up losses for a technology entrepreneur. This article explores how US tax rules are being adapted to 21st century businesses.

Released on Sep 5, 2022

Post-AK Futures: what lies ahead for hemp-derived psychoactive cannabinoid products?

This article summarises the Ninth Circuit’s recent decision in AK Futures and considers industry-wide impacts on the potential legalisation of delta-8 THC products derived from industrial hemp.

Released on Sep 5, 2022

Interview with Michael Maya – September 2022

Michael Maya has been the Director for IBA’s North America Office for almost ten years. In this interview he shares his insights on the future of the rule of law, why he is so passionate about it and how IBA members and the new generations can get more involved in promoting the rule of law. Michael also talks about the main contributions from the IBA to the legal community and some of the lessons he learned from Africa, among other fascinating views.

Released on Sep 5, 2022

Corporate income tax in Uruguay: is this the end of the so-called 'principle of the source'?

As a result of certain questioning from the European Union, a debate has begun in Uruguay in connection with the so-called 'principle of the source'. In accordance with such a principle, Uruguayan companies are only taxed on locally sourced income. Foreign-sourced income is, as a general rule, excluded from corporate income tax. The EU admits the validity of the above principle, though subject to certain substance requirements. The Uruguayan Executive Branch has recently made public a draft bill that would keep in force the principle of the source, provided that local companies were in compliance with such substance requirements.

Released on Sep 2, 2022

Internal investigations: recent developments

More and more over the recent years, with a trend that has crossed the borders of common law jurisdictions and has reached those of civil law, criminal law is becoming not only a matter of judicial defence of a case but also, especially in the corporate world, a matter of preventing misconducts and, in the case of those that have been committed, a matter of prompt and effective collection of items of evidence for their ascertainment.

Released on Sep 2, 2022

Ten questions that commonly arise when conducting employee investigations

Ten questions that commonly arise when conducting employee investigations: different considerations in interviews solely for disciplinary proceedings versus those assessing whether criminal or regulatory misconduct has occurred

Released on Sep 2, 2022

Internal investigations and the many issues posed by Turkish law

Turkish law presents several issues to consider when designing and executing internal investigations, differing from European Union or United States law in some key areas.

Released on Sep 2, 2022

Internal investigations in Switzerland: recent developments

Abstract This article aims at providing an overview of certain key issues that arise in the ambit of internal investigations in Switzerland. In particular, it discusses whistleblowing, data privacy, employment and client identification considerations, as well as legal privilege, before examining the role of penalty orders as an instrument in the resolution of investigations.

Released on Sep 2, 2022

Internal investigations: recent developments in Spain

The authors briefly analyse the guidelines set forth by the Spanish Supreme Court’s Criminal Section on the control and monitoring of corporate electronic devices and communication channels in the framework of an internal investigation, as well as the criminal liability regime of a company’s director when

Released on Sep 2, 2022

The possibility to enter into a non-prosecution agreement in cases of internal investigation and self–reporting

In the case of an internal investigation, it is generally possible to enter a non-prosecution agreement. If as result of an internal investigation, a criminal offence is discovered, the corporation should submit the criminal application with all collected evidence during the process of internal investigation to the prosecutor’s office.

Released on Sep 2, 2022

Internal investigations: the impact of the transposition of the EU Whistleblowing Directive

Currently, the public attention in Romania focuses on the law on the protection of whistleblowers transposing the European Union Directive 2019/1937 (the ‘Whistleblowing Directive’ or the ‘Directive’) into national law, given that this new legislation will bring many obligations to companies conducting internal investigations.

Released on Sep 2, 2022

Internal corporate investigations in Poland: key aspects, specificity

The article concerns key aspects of conducting internal investigations in Poland, taking into account legal frameworks, evidence gathering process and risks related to investigative activities.

Released on Sep 2, 2022

Internal investigations: recent developments in New Zealand

This short article provides an overview of the New Zealand approach to regulatory and similar investigations. Those are typically undertaken by a business in relation to some trigger which brings to light a regulatory problem, ethical challenge, or other misconduct (even potentially criminal behaviour). An internal investigation might take place on its own, or in parallel with an external regulatory investigation which the business must also deal with.

Released on Sep 2, 2022

Recent developments regarding internal investigations conducted by attorneys-at-law in the Netherlands

In the Netherlands, internal investigations can be conducted by a company’s attorney-at-law, as long as the attorney-at-law respects his or her rules of professional conduct. Recent developments did, in this regard, reveal risks for the

Released on Sep 2, 2022

Permitted foreign investigative activities (and powers of investigators in general) in Luxembourg, and legal privilege

Luxembourg has long been (wrongly) seen and painted by its opponents as an opaque jurisdiction where investigations rarely yield results. While this reputation may not have been totally undeserved in the last century (even if that is debatable), since the early 2000s, Luxembourg has seriously tightened its framework and should now definitely lose this reputation.

Released on Sep 2, 2022

Legal privilege in the context of internal investigations

In the organisation and conduct of an internal investigation in a company, the profile relating to the confidentiality, preservation and protection of its contents and findings, with respect to the interference of the judicial authority or third parties, is of particular importance, where criminal proceedings already exist, as well in the event that they can be instituted.

Released on Sep 1, 2022

Data protection considerations in internal investigations

When conducting an internal investigation, which includes a review of employees’ emails among its activities, various constraints regarding labour law and privacy issues must be taken into account. In Italy, the matter is governed by several provisions of different statutes all of which have to be taken into account and have an impact on the way internal investigations and emails review must be carried out.

Released on Sep 1, 2022

The possibility to enter into a non-prosecution agreement in case of internal investigation and self-reporting

While in the United States judicial system NPAs between companies and Public Prosecutors Offices are widely used in the criminal proceeding against corporations, in Italy, this mechanism of pre-trial diversion is not provided for by law, but there is a glimpse of an opening of the Public Prosecutor's Offices toward informal interlocutions with companies.

Released on Sep 1, 2022

Internal investigations: There is no escaping anymore!

Whistleblowing complaints on financial, ethical, and legal issues are on the rise in India. With the law not having evolved at the same pace, it has created even more uncertainties in the regulatory environment. However, consciously, many Indian corporates have adapted and changed gears, ushering in a new mindset, and incorporating policies to achieve the broader objective of ‘no fraud-no corruption’.

Released on Sep 1, 2022

Non-prosecution agreement under French law: self reporting and internal investigation are expected

The adoption of Law 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, known as ‘Sapin II’, was a milestone in the field of negotiated justice since it introduced

Released on Sep 1, 2022

The framework of internal corporate investigations in Brazil – between the best practices and the lack of regulation

The growing complexity of societal structures and their respective schemes for financial crimes have put a spotlight in compliance programs and internal investigations in the past decades. In Brazil, one must navigate a scarcely regulated environment to conduct an internal corporate investigation.

Released on Sep 1, 2022

Recent developments in internal investigations: Argentina

Although internal investigations remain largely unregulated in Argentina, they are generally admitted by criminal courts as a legitimate means for collection of evidence and supporting criminal charges and/or civil complaints.

Released on Sep 1, 2022