Committee publications

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From the Co-Chairs, October 2021

Greetings to all our North American Forum members. We hope that you are all safe and well during these challenging times. We are also hopeful that the worst of Covid-19 is behind us and we will soon be able to meet again in person.

Released on Oct 21, 2021

A note from the Chair for the October 2021 Class Actions e-Bulletin

A note from the Chair for the October 2021 Class Actions e-Bulletin

Released on Oct 20, 2021

Premium conditions for significant foreign investments into Ukraine

Ukraine makes a significant effort to overcome challenges with transparency and stability. One recent solution is the recent law, ‘On State Support to Projects with Significant Investments’. The legislation is aimed at removing bureaucracy and creating investment incentives.

Released on Oct 19, 2021

Fiduciary duties in Belarusian corporate law

Belarusian corporate law does not directly define what fiduciary duties are and whether they are in place in corporate relations, and neither has court practice done this. However, the law does provide for some duties that can qualify as fiduciary, as this article explains.

Released on Oct 13, 2021

The approval clause as a limit to company share transfers: a comparison between SRL and SPA regulation

This article analyses the statutory approval clause, taking into account recent case law, and compares the rules governing joint stock companies and limited liability companies in Italy on this topic.

Released on Oct 13, 2021

Ongoing legislative discussions on expanding the list of entities with standing to file public civil actions in Brazil

Brazilian National Congress has been debating the expansion of the list of entities with standing to file public civil actions to include political parties and the holders of electoral mandates. The proposal raises questions on whether such expansion would be necessary or adequate as to ensure representativeness and provide better access to justice.

Released on Oct 12, 2021

UK courts continue to clarify the basis and scope of ‘representative actions’

Under UK civil procedure rules, a ‘representative action’ may be initiated or continued by or against one or more persons as representatives of others who have the ‘same interest’ in the claim. The use of this collective redress mechanism has expanded considerably in the last decade, despite the absence of clear juridical guidance on the scope of this form of action. The UK Court of Appeal has very recently provided helpful clarification on the fundamental requirements of a ‘representative action’ and what is required to satisfy the ‘same interest’ test in practice.

Released on Oct 12, 2021

UK and Europe: a new hub for data breach class actions?

In this article we look at the growth of data breach class actions in the UK and Europe following the coming into force of the General Data Protection Regulation (GDPR). We also consider regulatory activity in the data protection field and the links between investigations and recent class actions. Looking to the future we ask whether current trends are likely to continue, highlighting some powerful policy statements made by the English Court of Appeal in support of data breach class actions, and conclude with a few words on litigation funding and its role in facilitating these kinds of cases.

Released on Oct 12, 2021

Collective redress in England and Wales: co-claimant collaboration as a tool for success

Recent years have been pivotal in the development of collective redress in the courts of England and Wales. Claimant collaboration, or lack thereof, is likely to play a key role in deciding how successful many collective actions are in the coming years.

Released on Oct 12, 2021

Sustainable mining: an interview with Anglo American, IBA President and experts from private practice

In this episode, Jonathan Hoch (Head of Legal and Commercial at Anglo American) speaks with Sara Carnegie (IBA Director of Legal Projects) and Maria Pia Sacco (LPRU Senior Project Lawyer) about how Anglo American has become a leader in sustainable mining, with sustainability increasingly becoming a competitive advantage.

Released on Oct 11, 2021

What you don't know about NFTs could hurt you: non-fungible tokens and the truth about digital asset ownership

Non-fungible tokens, or NFTs, are currently in the midst of the type of hype-cycle last seen in the blockchain/crypto world when initial coin offerings (ICO) were all the rage. On 11 March 2021, an NFT associated with a piece of digital art sold at auction at Christie’s for $69m. Other NFTs, such as one based on Jack Dorsey’s first Tweet, are selling for millions as well and there is an active secondary market for some NFTs which can drive prices up quickly after the initial sale. One of the key questions, especially for anyone focused on the legal issues raised by NFTs, can be posed in simple terms: What does a purchaser really own when he or she buys an NFT?

Released on Oct 8, 2021

More ‘Americanization’ of discovery? The fate of Section 1782 remains unsettled

In recent years international lawyers have grown increasingly concerned about the burdensome ‘Americanization’ of discovery in global disputes. The United States Supreme Court recently lost an opportunity to decide the fate of one of the most direct forms of such ‘Americanisation’ – whether parties in private commercial arbitration can seek discovery in US courts under Section 1782. Divisive litigation over Section 1782 will now continue until the Supreme Court resolves the issue and the circuit split.

Released on Oct 8, 2021

Is there a first amendment right to tweet?

Companies have already imported relatively restrictive European Union privacy rules into the United States. Now, the upcoming Digital Services Act in the EU may force social media companies to import relatively restrictive speech rules too.

Released on Oct 7, 2021

Covid-19: A new challenge for corporate governance

According to Vázquez-Palma, corporate governance should be understood as the way in which companies are directed and controlled; it is the rules, principles and procedures that regulate the structure and functioning of the Governance bodies of business companies. But what benefits does corporate governance provide? What must our corporate governance rules establish? This article answers these questions whilst highlighting opportunity areas and recommendations.

Released on Oct 7, 2021

What is a risk-based approach?

One of the most common phrases in corporate ethics and compliance is ‘a risk-based approach.’ What does it mean? How do you run a compliance programme every day when you use it?

Released on Oct 7, 2021

Comparative corner - Autumn 2021

A light-hearted (non-academic) comparative discussion of the laws of Canada, Mexico and the United States, by lawyers from each of the three countries. This edition’s discussion focuses on a broad comparative overview of the legal systems.

Released on Oct 7, 2021

Fintech M&A: Latin American and Chilean Fintech ecosystems in the global eye

The Fintech ecosystem has experienced exponential growth recently. Latin America, particularly Chile, has become the home of prominent Fintechs and has witnessed an increasing number of venture capital deals.

Released on Oct 7, 2021

Amendments to the Brazilian Corporate Act – new rules for Brazilian corporations

The Brazilian Corporate Act has recently been subject to several changes, which aimed to promote the Brazilian corporation as a structure suitable for projects and investment in general. Under this context, we will provide an overview of the most relevant topics brought by said changes and how they may affect foreign investors.

Released on Oct 7, 2021

The French board neutrality rule

Recent events have shed a new light – along with a series of unexpected discussions – on the compatibility of French takeover rules with European legislation.

Released on Oct 7, 2021

The market is driving change in the SPAC world

The legal and financial worlds have been caught by surprise by the volume of transactions involving special purpose acquisition companies (SPACs) during 2020, and this trend has only accelerated in 2021. As a result, this new asset class and alternative path to the capital markets has seen significant attention from the media, academics and regulators around the world. This article discusses the self-regulating nature of the market and addresses some of the features of SPACs that were the object of criticism.

Released on Oct 7, 2021

The impact of ESG criteria on M&A transactions

An appropriate environmental, social and governance (ESG) strategy and approach may result in an essential competitive advantage, which is one of the reasons why ESG is rising to the top of the priority list of many companies.

Released on Oct 7, 2021

Denmark adopts new foreign direct investment legislation

Denmark has adopted one of the most restrictive FDI regimes yet seen in Europe, subjecting a very broad range of foreign investments in Denmark to mandatory governmental approval. The new FDI legislation applies also to investments from other EU countries and covers a number of broadly framed categories of corporate and commercial transactions within a wide range of criti-cal sectors, technologies, and infrastructure.

Released on Oct 7, 2021

Not as easy as making lemonade – squeezing out shareholders in Romanian unlisted companies

Scholars and practitioners in Romania have debated the possibility of shareholder applying exclusion or squeeze-out mechanisms in respect of shareholders (dormant or not) outside of the situations provided by the country’s Companies Law. This article explores the options.

Released on Oct 7, 2021

Norway blocks first transaction on national security grounds

On 23 March 2021, the Norwegian Government blocked the sale of Bergen Engines, a Rolls-Royce subsidiary, to a Russian-controlled buyer. The transaction did not trigger a mandatory filing, but the government made use of its far-reaching powers to screen and block foreign direct investment in Norwegian companies, as this article explains.

Released on Oct 7, 2021

Scientific research aboard the International Space Station: How does this work from an EU and French law perspective?

Aboard the International Space Station, scientific research is led by astronauts of different nationalities. This research prepares for space exploration missions but also brings benefits for humanity on Earth. It raises the question of which law applies to these kinds of experiments in general and clinical trials in particular, as well as the extent of intellectual property in space.

Released on Oct 7, 2021

5G in healthcare: maximising digital value in patient care or increasing legal risks?

Allowing high-reliability and low latency, 5G wireless technology is said to be a critical new generation network that will support the economy’s digital transformation and drive innovation. Healthcare is one of the key sectors targeted by 5G and may benefit from its deployment throughout the patient’s pathway, with enhanced remote health services.

Released on Oct 7, 2021

Regulatory changes to expedite the inclusion of therapeutic products in the private healthcare system

In Brazil, the National Regulatory Agency for Private Health Insurance and Plans (ANS) defines the scope of coverage offered in private healthcare plans and sets the guidelines for determining coverage. According to current regulations, the List of Healthcare Procedures and Events (the ANS List) is revised and updated every two years. Then all procedures and treatments qualifying for compulsory coverage under private healthcare plans are made public, without prejudice to any additional coverage stipulated in private healthcare contracts.

Released on Oct 1, 2021

Vaccination programme in Brazil: lessons for the future

Despite the worldwide acclaim that Brazil’s national immunisation programme receives, it has struggled to overcome inequality problems, legal and regulatory pitfalls, infrastructure shortfalls and distribution and logistics problems, in the context of Covid-19 vaccination. Besides, Brazil has been mired in intense internal political debates that stood in the way of science-based decision making in terms of vaccination plans and effective responses.

Released on Oct 1, 2021

Telemedicine in Brazil: the impact of Covid-19

Brazil, like other countries, has faced several challenges since the beginning of the global health crisis due to the spread of Covid-19. Throughout the pandemic, Brazilian authorities have engaged in an extensive legal and normative production seeking to regulate various issues, especially in dealing with health and technology.

Released on Oct 1, 2021

Challenges in using Big Data under the Brazilian General Data Protection Act

Data has become a valuable and meaningful instrument in different businesses. The use of massive data may help companies to focus on issues that need improvements or even to monitor and guide the outcomes of different actions they put in place to be more effective and efficient, especially in the healthcare market. However, the management of data must be careful, considering that most data collected may be deemed sensitive, and is protected by law.

Released on Oct 1, 2021