Committee publications

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ESG in Portuguese M&A: what’s new and what’s expected

Portuguese companies are becoming increasingly more ESG-oriented, and trying to be more sustainable, to increase their value and to attract more investors. Some specific sectors are more evolved in this regard – especially the energy sector. Some key developments are pushing towards this transformation, such as Covid-19 and the Ukraine-Russia war.

Released on Mar 31, 2022

The rise of M&A and venture capital investments in the Brazilian healthcare sector

Brazilian M&A and venture capital investments have been boosted by the pandemic and by the regulator’s greater openness to technology and innovation, as this article explores.

Released on Mar 31, 2022

FDI regulation in Italy and the new provisions enacted in relation to the Covid-19 pandemic

This article discusses the regulation of foreign direct investments in Italy and provides a short overview of the veto rights of the Italian government in light of the latest provisions enacted within the context of the Covid-19 pandemic.

Released on Mar 31, 2022

The SAFE as a new seed financing instrument in the Austrian startup landscape

Commonly, simple agreements for future equity (SAFEs) are based on post-money valuation. Since their introduction, the SAFE has been used by many startups, particularly in the US. In Austria, using SAFEs as an instrument for early-stage financing is still quite novel. Therefore, the Austrian startup-finance ecosystem does not yet have standard form documents.

Released on Mar 31, 2022

The upcoming revision of German law on non-commercial partnerships

This article deals with German ‘non-commercial’ partnerships, also referred to as ‘civil-law partnerships’ or ‘non-trading partnerships’. On 1 January 2024, the German Act to Modernise the Law on Partnerships will introduce a new legal regime for German partnerships, including ‘non-commercial’ partnerships.

Released on Mar 31, 2022

The penalty clause in a company’s by-laws and the impact on M&A transactions – the opinion of the Notary Council of Milan

The article focuses on the legitimacy of clause in a company’s by-laws providing for the application of penalties and consequences on shareholders, if they breach the obligations provided in the by-laws. The article also highlights the possible consequences that the inclusion of those penalty clauses within a company’s by-laws may cause with respect to M&A transactions.

Released on Mar 31, 2022

Czech Republic FDI screening rules: their implementation and evolving practice

The Foreign Direct Investment Act, passed by the Czech Parliament in January 2021 and effective from 1 May 2021, has been introduced in response to Regulation (EU) 2019/452, which establishes a framework of screening of foreign direct investments throughout the European Union. This article sets forth a brief introduction to the main elements of screening applicable to foreign investors arising from the FDI Act.

Released on Mar 31, 2022

Are liquidation preference arrangements legally enforceable in India?

Liquidation preference arrangements are increasingly forming part of transaction documents as a way to minimise investment risks. This article discusses the priority of stakeholders and the enforceability of such arrangements under Indian laws. It further analyses the practical challenges associated with liquidation preference arrangements.

Released on Mar 31, 2022

Amendment to the Thai Civil and Commercial Code: mergers as new alternatives to M&A transactions in Thailand

Changes are expected in M&A transactions in Thailand once mergers are legally recognised under Thai law. This article details those changes.

Released on Mar 31, 2022

Aviation Law Committee Chair’s speech for 2022

IBA Aviation Law Committee Chair Serap Zuvin discusses the committee’s activities in 2021 and looks ahead to 2022.

Released on Mar 25, 2022

Hot topics in compliance part two – anti-corruption compliance trends in the US, UK and Hong Kong

The enforcement of global anti-corruption regulations by various governments worldwide has created heightened compliance regulations for companies globally. This webinar discussed the different anti-corruption regimes in three different jurisdictions respectively, as well as comparing the similarities in the compliance requirements.

Released on Mar 23, 2022

Why lawyers should never underestimate the importance of communication

Communication is an art rather than a science, and effective communication skills are essential to law practitioners. However, effective communication with clients isn’t something that most lawyers give much thought. This article provides communication advice for lawyers.

Released on Mar 21, 2022

European Regional Forum Western and Israel Regional Working Group report

An update on the latest trends in the Italian market for startups and benefit corporations, better known as B Corporations.

Released on Mar 21, 2022

A short presentation of the activities of the D&I working group

The D&I working group wants to understand more about how diversity and inclusion is perceived by European law firms, as well as try to learn from each other’s experiences and help European independent law firms to be aware of D&I needs and implement proper actions.

Released on Mar 21, 2022

Digital economy update

A report on a session at the 11th Annual IBA Finance & Capital Markets Tax Virtual Conference. The panel sought to address and provide insight on the following topics: the status of the digital service tax across different jurisdictions; the current attitudes of the tax authorities with digital businesses, particularly in relation to enforcement; and other developments including the Directive on Administrative Cooperation 7.

Released on Mar 11, 2022

From the Co-Chairs - Arbitration Committee bulletin March 2022

Welcome to our first newsletter of the year. For this edition, as part of our continuous commitment to promoting international arbitration practice and a more diverse and inclusive arbitration community, we have a selection of 22 articles covering a wide range of subjects (from interim measures to the role of administrative secretaries) and jurisdictions (from New Zealand to Venezuela). We are also bringing fresh and contemporary material such as arbitrating indigenous disputes, arbitration and compliance, Covid-19 and M&A transactions, human rights, and transnational blockchain-based arbitration.

Released on Mar 4, 2022

From the Editors - Arbitration Committee bulletin March 2022

It is a pleasure to open year 2022 with a solid edition of the IBA International Arbitration Committee’s Newsletter, with articles covering a wide range of topics of interest to the arbitration community.

Released on Mar 4, 2022

Lex Cryptographia: Guidelines for ensuring due process in transnational blockchain-based arbitration [1]

Blockchain-based arbitration is just like traditional arbitration except it takes place on blockchains, such as Ethereum. The arbitration agreement forms part of the smart contract, arbitrators are selected using random numbers extracted from the blocks in the blockchain and the award is also embedded in a self-executable smart contract. There is currently no regulation in transnational blockchain-based arbitration. Any such regulation faces a number of serious challenges, such as how to determine the applicable jurisdiction in a blockchain-based arbitration. This article seeks to address such challenges by suggesting some possible guidelines.

Released on Mar 4, 2022

The conduct of the parties in international arbitration: the current state of play

In recent times, arbitrators have been under the microscope but what about the conduct of parties in international arbitration? Generally, less has been published on this topic although there are repeated complaints in the international arbitration community about party conduct and whether there is a lacuna which requires increased regulation. In the authors’ opinion, the conduct of party representatives is being – and will continue to be – increasingly scrutinised in international commercial arbitration. With this in mind, this article provides insight into key international ethical rules and guidelines (including the sanctions available for misconduct), assesses the current state of play and outlines ideas to improve the state of play to ensure that party representatives are held accountable for their actions and to protect the fair and effective resolution of disputes. None of the opinions in the article refer to specific cases and none should be implied. The comments are only intended to be by way of general background and should not be construed otherwise.

Released on Mar 4, 2022

Reconciling the role of tribunal secretaries in international arbitration

Seeking to facilitate the conduct of arbitral proceedings, tribunals have increasingly resorted to the assistance of ‘tribunal’ or ‘administrative’ secretaries (“Secretaries”). Although reliance on Secretary support is not novel, their engagement in arbitrations has sparked considerable debate over the potential for misuse.

Released on Mar 4, 2022

When arbitration and compliance meet up: analysis of their first interplay

Questions have arisen as to the impact of growing compliance requirements on the practice of arbitration, allowing compliance to find its place in the field of arbitration. This growing importance first raises the question of the arbitrability of compliance law, then of the impact of compliance on the arbitration activity itself, and finally demonstrates that arbitrators have become actors in implementing and respecting compliance requirements

Released on Mar 4, 2022

Arbitration clauses and payment orders: practice of UAE courts

A creditor in the United Arab Emirates may apply for what is called a payment order when the debt is established in writing and is due. In other words, there should be no doubt about the existence of the debt. This is a swift and ex-parte procedure, which has become very popular. Given that the debt is not in dispute, a question arises on whether an arbitration clause concluded between the parties should be upheld or not. Also, as the proceedings are ex-parte, the courts may not become aware of the arbitration clause. This article examines how courts treat an application for a payment order when the parties have agreed to arbitrate their disputes.

Released on Mar 4, 2022

Covid-19 and M&A transactions: ordinary course of business in extraordinary times

The Covid-19 pandemic has affected M&A transactions giving rise to disputes and litigation. This article explores how some courts and tribunals interpreted companies’ obligations to keep their “ordinary course of business” during the pandemic

Released on Mar 4, 2022

Arbitrating indigenous disputes: a New Zealand perspective

Tikanga Māori (or Māori customary law) is now largely recognised as the first law of New Zealand, which must sit alongside our common law system. Following extensive treaty based settlements, arising from a failure on the part of the Crown to honour its commitments under the Treaty of Waitangi, intra-Māori disputes have increasingly arisen over how to deal with settlement proceeds and land allocations, with arbitration being a logical approach to such settlement. This article examines the success of arbitration in light of four recent court decisions.

Released on Mar 4, 2022

An empirical study on setting aside proceedings in Italy

With a judicial and arbitration reform upcoming in Italy, a statistical study checks the state of health of Italian-seated arbitrations. Drawing from the analysis of over a thousand setting aside judgements issued by the Italian Courts of Appeal, the study investigates use and success rate of the grounds for annulment, as well as outcome and length of the related proceedings. Also, the recollection of the arbitration contained in the judgements offers a unique insight on many national and international arbitrations seated in Italy. Data follow on the type of the arbitration, profile of arbitrators, subject matter and value of the underlying disputes. The resulting picture is quite comforting, with Italy likely ready to benefit from the imminent reform and on track to become an even more arbitration friendly jurisdiction.

Released on Mar 4, 2022

From modernisation to internationalisation of Luxembourg arbitration law

Luxembourg Bill N°7671 dated 15 September 2020 is a promising bill whose aim is to reform the entire Luxembourg arbitration regime in order to provide Luxembourg with a body of coherent and modern rules adapted to the needs and practices of modern commercial arbitration.

Released on Mar 4, 2022

Court assistance in support of arbitration: interim measures and obtaining evidence - Ukrainian perspective

In this article, firstly, we will provide an overview of the recent court decisions on interim measures to assess if requesting interim measures in Ukrainian courts in support of arbitration is now an efficient mechanism to preclude debtors with assets in Ukraine from defrauding good faith creditors. Then, we will discuss obtaining evidence for arbitration through Ukrainian courts.

Released on Mar 4, 2022

Analysis of a resolution of the High Court of Justice of Valencia regarding the competence to grant interim measures in support of proceedings for the recognition of a foreign arbitral award

In international arbitration, it is not uncommon that the party which has prevailed in the proceedings needs to enforce the award in a jurisdiction other than that of the seat. In Spain, this requires proceedings to recognise the foreign arbitral award (following the provisions of the New York Convention) before it can be enforced. Thus the losing party may have time to take measures to frustrate or hinder the enforcement proceedings. In order to tackle this problem, it is possible to ask for interim measures that remain in place while the recognition proceedings are ongoing.

Released on Mar 4, 2022

Judicial control over arbitration proceedings and arbitration awards in Venezuela

Recent cases conducted in Venezuela have brought up again the question regarding whether the Judicial Power can or cannot review, control or supervise both arbitration proceedings and arbitration awards issued in Venezuela.

Released on Mar 4, 2022

Strasbourg as the guarantor of last resort of due process in voluntary arbitration

The judgment in the Beg S.P.A. v. Italy case acknowledges the role of the European Court of Human Rights in Strasbourg as the ultimate guarantor of the application to voluntary arbitration of some of the procedural guarantees recognised by the European Convention on Human Rights. Availability of the Strasbourg option will depend on the recognition of equivalent guarantees by the arbitration laws of each State, as well as on the diligent conduct of the party to avoid an express or tacit waiver of rights.

Released on Mar 4, 2022