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Committee publications

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The UK’s new failure to prevent fraud offence – should crypto firms brace for impact?

The United Kingdom recently introduced legislation which expands the scope of corporate criminal liability. The Economic Crime and Corporate Transparency Act 2023 (the Act) aims to strengthen the UK’s response to financial crime through an array of measures. For crypto firms, the primary touchpoints in the Act are the standalone provisions which concern crypto assets in Part 4. Those provisions are focused on the powers of UK law enforcement agencies to seize and recover crypto assets and enable the seizure and forfeiture of crypto assets believed to be the proceeds of crime, or which are connected to terrorism on reasonable grounds without first requiring a criminal conviction. This article, however, considers how the introduction in Part 5 of the Act of a new offence of failing to prevent fraud, that may have a wider impact on crypto firms and make it easier for criminal prosecutions to be brought against organisations.

Released on Apr 15, 2024

Seizure of Russian assets in Ukraine: in search of balance

As of now, it makes no sense to calculate the exact cost of damages inflicted by the aggression of the Russian Federation: every day brings millions, and sometimes even dozens of millions of dollars in material damages, along with non-material losses that cannot yet be accurately measured. It also makes no sense to rely on voluntary compensation from the Russian Federation. Therefore, under these circumstances, the only realistic source of funding to compensate Ukraine for the damage caused by aggression is frozen Russian assets. Over the last year and a half, the subject of their confiscation has been widely discussed, but progress has been more than modest.

Released on Apr 15, 2024

Book review: Invisible Trillions: How Financial Secrecy is Imperilling Capitalism and Democracy – and the Way to Renew Our Broken System

In his latest book, published on 31 January 2023 by Berrett-Koehler Publishers, Raymond Baker exposes the dark side of capitalism and how financial secrecy is undermining democracy and the rule of law.

Released on Apr 15, 2024

The regulation of foundation models in the EU AI Act

Among the various aspects of the EU artificial intelligence (AI) regulation (“the ‘AI Act’), that of the foundation models was one of the most controversial and contentious of the entire interinstitutional negotiation, capable right up until the end of derailing the agreement in the trilogue and spreading uncertainty even up to the date of the definitive approval by part of the Committee of the Permanent Representatives of the Governments of the Member States to the European Union (Coreper) on 2 February 2024.

Released on Apr 12, 2024

‘How to master Europe’s digital infrastructure needs?’: A brief overview of the European Commission White Paper

On 21 February, the European Commission published a White Paper on ‘How to master Europe’s digital infrastructure needs?’ in view of the technological, economic and geopolitical challenges facing the EU in the digital decade. This White Paper identifies key trends and challenges in the digital infrastructure sector and discusses possible scenarios for public policy actions, such as a possible future Digital Networks Act, which aims to incentivise the building of the digital networks of the future, master the transition to new technologies and business models, meet the future connectivity needs of all end-users, underpin the competitiveness of our economy, and ensure secure and resilient infrastructures as well as the EU’s economic security. The White Paper proposes three main pillars of action: creating the 3C Network – ‘Connected Collaborative Computing’; completing the Digital Single Market; and ensuring secure and resilient digital infrastructures for Europe. It launches a broad consultation of stakeholders and invites comments until 30 June 2024. This article provides a summary of the White Paper.

Released on Apr 12, 2024

Pakistan's IT and ITeS export strategy: a gateway to economic prosperity and global recognition

Pakistan's recent launch of its first-ever information technology (IT) and IT-enabled services (ITeS) Export Strategy, which aims to raise IT exports to $10 billion over the next three years, represents a pivotal moment in the country's economic and technological progress.

Released on Apr 12, 2024

Tackling interconnect debts in the Nigerian telecommunications industry

A troubling feature of interconnection relationships in Nigeria is the huge interconnect debt profile of many operators. It appears that some operators have taken undue advantage of the fact that their creditors cannot unilaterally disconnect without the approval of the telecoms industry regulator.

Released on Apr 12, 2024

Investment and deployment of submarine cables: achieving a friendlier national and European regulatory environment

This article explores the Portuguese and European regulatory environment for the growing submarine telecommunications cables industry. It juxtaposes Portugal's proactive strategies to simplify the installation process with the current and upcoming European and national frameworks governing this sector, thus offering valuable insights for potential investors in this industry.

Released on Apr 12, 2024

Regulation of access to telecom physical infrastructure for deployment of electronic communications networks in Bulgaria: model for infrastructure access regulation or going in circles?

The Bulgarian Communications Regulation Commission plans to reinstate the asymmetrical regulation of access to telecom physical infrastructure for the deployment of electronic communications networks, which was withdrawn in its last market analysis of the wholesale local access market in 2019.

Released on Apr 12, 2024

International competition to capture remote workers: the increasing use of EOR companies

The increase in remote working and digital nomadism, accelerated by the Covid-19 pandemic, has caused countries to adopt innovative policies to attract and retain remote workers. This article examines the major attractions for digital nomads, the compliance risks associated with working remotely, and the role of Employer of Record (EOR) services utilised in international employment.

Released on Apr 9, 2024

Hungary’s new Guest Investor Programme

The new Hungarian law on ‘General rules for the entry and residence of third-country nationals’ has introduced the Guest Investor Residency Programme. A significant part of the legislation became effective from 1 January 2024, however, the special provisions governing the Golden Visa will enter into force from 1 July 2024. From that point onwards, Golden Visa investors can obtain a ten-year residence permit for investing in a Hungarian real estate fund worth at least €250,000 or purchasing residential real estate in Hungary worth at least €500,000.

Released on Apr 9, 2024

US Citizenship and Immigration Services substantially raises its fees

This article covers the recent raise in the US Citizenship and Immigration Services’ fees and the opposition the move has faced.

Released on Apr 9, 2024

Transitioning into a ‘brave new world’ of Pillar Two

The panel discussion was focused on the critical aspects and potential impact of the OECD Pillar Two Model Rules framework on various tax and corporate structures. The first segment of the discussion was dedicated to how Pillar Two affects investment funds, certain International Financial Reporting Standards definitions and considerations, the particulars concerning joint ventures and the ramifications of Pillar Two in the context of mergers and acquisitions. The first half of the discussion highlighted the critical factors that must be taken into account for the strategic structuring of investments in accordance with Pillar Two. In the second half, attention shifted towards a comprehensive review of the recent developments in regard to US foreign tax credits, a topic of significant relevance given its potential influence on cross-border investments and the international tax landscape.

Released on Apr 8, 2024

M&A in turbulent times – how to get the deal done (2024)

This session focused on four topics in regard to mergers and acquisitions (M&A): (1) redomiciliations, (2) spin-offs and demergers, (3) selected Organisation for Economic Co-operation and Development Pillar Two topics focusing on contractual clauses and (4) transfer taxes. For most of the agenda items, the local special rules and practical takeaways were highlighted.

Released on Apr 8, 2024

Securitisation and derivatives markets (2024)

The panel examined the latest trends on securitisation transactions from a tax perspective in various jurisdictions. The presentation focused on new case law on securitisation funds, US rules for withholding on structured notes, the European Union’s Faster and Safer Relief of Excess Withholding Taxes proposal, derivative taxation in the UK and, finally, beneficial ownership and the payment of dividends and interest in various European countries.

Released on Apr 8, 2024

Crypto is crazy – non-fungible tokens are crazier still

The panel examined recent developments regarding the taxation of crypto-assets in various jurisdictions. The presentation focused on what non-fungible tokens (NFTs) are, important definitions in recent OECD rules and EU regulations dealing with crypto-assets and the EU’s tax transparency rules for crypto-asset transactions, the value-added tax-treatment of transactions concerning crypto-assets and NFT platforms in the United Kingdom and, finally, the income tax treatment in the United States and Italy.

Released on Apr 8, 2024

Permanent establishment (2024)

The concept of permanent establishment (PE) is one of the key issues in international taxation, as it determines the allocation of taxing rights between source and residence countries. However, the traditional PE concept, based on physical presence and agency, is facing new challenges in the context of hybrid and distance working, the digital economy and multilateral instruments. This panel, held at the IBA congress on 15 January 2024, aimed to explore the recent developments and difficulties related to the PE concept from different perspectives and jurisdictions. The panel was chaired by Raul-Angelo Papotti, and featured five speakers from Denmark, France, Germany, Spain and the United Kingdom.

Released on Apr 8, 2024

Holding companies: which jurisdiction is the best?

The panel discussed the present application and significance of holding companies, specifically special purpose vehicles (SPVs), from the viewpoints of several key jurisdictions: Spain, Germany, the United Kingdom, Dubai and Luxembourg. The primary focus of the discussion centred on evaluating the relevance and impact of holding companies within the framework of both international and European Union regulatory progression, particularly in light of the proposed Anti-Tax Avoidance Directive 3 (ATAD 3), аs well as what is the most appropriate jurisdiction to register an SPV. The conversation explored the implications of these regulatory changes for holding companies, assessing their operational viability and strategic importance in the international tax landscape.

Released on Apr 8, 2024

Current and developing issues in cross-border finance

The conference session focused on current and developing tax issues in cross-border finance, with a panel of experts from various jurisdictions discussing the latest trends and challenges in this area. The conference aimed to provide a comprehensive overview of the tax implications of different types of financing transactions, such as securitisation, fund financing, hybrid instruments, and interest deduction limitations. The panel session also addressed the impact of anti-hybrid and mandatory disclosure rules on capital markets, as well as the concept of beneficial ownership and conduit financing.

Released on Apr 7, 2024

From the Editors - Litigation Committee newsletter April 2024

Welcome to the Spring 2024 edition of the newsletter, focusing on the impact of armed conflicts on commercial disputes. You will also find a look back at several litigation-themed sessions and events at the IBA Annual Conference in Paris this past November, as well as inspiration for planning ‘a day in Amsterdam’ ahead of this year’s Annual Litigation Forum in the Dutch capital. We thank all contributors for their submissions and hope you will find them of interest.

Released on Apr 4, 2024

Evidencing damage caused by modern warfare: Russia’s large-scale war against Ukraine

The large-scale war waged by Russia on Ukraine has been going on for over two years and has caused enormous damage. The total amount of damage to Ukrainian citizens, businesses and the state itself is yet to be quantified. It already appears to be in the range of hundreds of billions of dollars. It is said that even the total value of all frozen Russian assets in different jurisdictions is far below the value of the damage caused by the Russian aggression against Ukraine.

Released on Apr 4, 2024

Don’t let an armed conflict get in the way of London litigation

The full-scale invasion of Ukraine in February 2022 was a calamitous event which has given rise to extraordinary hardship and global repercussions that continue to reverberate. Away from the battlefield itself, many have been displaced and businesses disrupted globally. The last year or so has given a definitive answer in so far as the English Court is concerned: there will be no ‘deep freeze’, the sanctions complications arising in litigation unrelated to the war are to be managed.

Released on Apr 4, 2024

Seeking justice across borders: enforcing foreign judgments amid contemporary armed conflicts

Civil and commercial disputes arising from armed conflicts stem from a multitude of causes, ranging from torts and delicts committed during combat to breaches of contractual obligations, fully or partially brought about by sanctions regimes targeting individuals and entities associated with the aggressor. Typically, such disputes inherently present distinctive challenges and intricacies, including issues surrounding state immunity and the imperative of attaining recognition and enforcement of judgments in foreign jurisdictions, particularly when the aggressor’s assets within the jurisdiction of judgment origin prove inadequate to satisfy the damages awarded.

Released on Apr 4, 2024

Disputes in a world of sanctions: issues with the administration of justice

The restrictive measures introduced by the United States, the European Union, the United Kingdom and others in respect of the actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine are undoubtedly of an unprecedented nature. On the other hand Russian anti-sanctions measures are changing the landscape in unrecognisable ways. By February 2024, the EU imposed its 13th package of sanctions against Russia. The economic sanctions have also been extended to 31 July 2024 with the possibility that they will be extended again for as long as the conflict continues. Although such sanctions are part of a continuous effort to impose severe economic, political and other consequences on Russia for its war against Ukraine, they create obstacles to the effective administration of justice and the rule of law.

Released on Apr 4, 2024

The ‘silent casualty’ of war: armed conflict, environmental protection and corporate liability – trends in international law and the impact on commercial disputes

Conflict can contribute to carbon emissions and drastically affect biodiversity, while environmental degradation, such as resource scarcity or water shortages, increases the likelihood of violent conflict. Pollution of local water supplies, illegal land possession and unsustainable extraction of resources are just some examples of corporate activities which can cause conflict.

Released on Apr 4, 2024

The Russian invasion of Ukraine: effects on global trade and remedies available under Italian law

Given the fact that war in Ukraine and consequent sanctions are affecting Italian commercial transactions, the purpose of this article is to examine the remedies provided by Italian law to contractual parties being in an ‘emergency situation’ and to understand if such remedies are (still) applicable in the current context of the Russian-Ukrainian conflict.

Released on Apr 4, 2024

The impact of conflict in Ukraine on commercial disputes: a recent Italian example

According to an Italian court, the conflict between the Russian Federation and Ukraine and the martial law in force in Ukraine put at risk the possibility to recover a credit against a Ukrainian company and justified the suspension of the payment of a bank guarantee.

Released on Apr 4, 2024

The impact of armed conflicts on commercial disputes: recent developments in France

Armed conflicts generate numerous unforeseen direct and indirect consequences, such as the surge in energy prices. Such consequences disrupt the performance of commercial contracts, for instance by making it excessively onerous for one party. The recent reform of French contract law added two mechanisms to the French Civil Code which may prove relevant in such a context. Their use is however strictly framed by French courts.

Released on Apr 4, 2024

The impact of armed conflict on commercial disputes in Africa

This article provides high-level insight into the impact of armed conflicts on commercial disputes ‘on the ground’, in three relevant jurisdictions: Burkina Faso, Sudan, Burkina Faso and Sierra Leone.

Released on Apr 4, 2024

The impact of armed conflicts on commercial disputes: in the context of Malaysian law

This article seeks to examine the effects of conflict over international and national economic flows and the implications which follow within the context of Malaysian law.

Released on Apr 4, 2024