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Podcast: Torture A-C - Human Rights Law Committee

Episode 1 of an IBA Human Rights Law Committee podcast series looking at both obvious and overlooked aspects of litigating and documenting torture, in an ‘A-Z’ format. This episode covers arbitrary detention, as both a form of torture and environment which renders individuals susceptible to torture; beatings – physical torture; and ‘confessions and clean teams’.

Davos pushes for cyber security agenda at the C-Suite

Cyber security was trumpeted as one of the top five global risks at this year’s World Economic Forum in Davos. As the deadline for implementing the EU General Data Protection Regulation looms large, there is growing pressure on businesses worldwide to ensure they are making cyber security a top priority.

Business without borders: managing the impacts of corporate and C-suite mobility

This panel at the 2024 IBA Annual Conference in Mexico City addressed the primary fiscal challenges associated with cross-border corporate and executive mobility, including issues related to permanent establishments, place of effective management and their consequences – such as exit taxes – in Brazil, Italy, Mexico, Portugal, Switzerland, and the United States.

SEC proposal paves the way for contemporaneous 506(b)/506(c) fundraising strategies

The US Securities and Exchange Commission announced on 4 March 2020 that it has voted to propose a set of amendments that would clarify and harmonise integration concepts for several forms of exempt offerings. One amendment proposes to shorten the safe harbor in Regulation D to 30 days, which will provide more flexibility for small business and real estate securities offerings. This article summarises the integration of sequential Rule 506(b) and Rule 506(c) offerings.

CJEU judgment C-80/19: national certificate of inheritance versus European Certificate of Succession

An article covering the judgment of the Court of Justice of the European Union (first chamber) of 16 July 2020 C-80/19.

Concerns over ‘outmoded, 20th century’ nuclear option following UK Government go ahead for Hinkley Point C

After ten years of uncertainty, a proposal to build a new nuclear power station in the UK has finally been given the go-ahead by UK Prime Minister, Theresa May. The project at Hinkley Point in Somerset, originally launched a decade ago, has had a number of false starts since French energy giant EDF first agreed to construct the new power station, promising electricity from Hinkley by 2017. Ten years on and the plant may finally start to be built.

Landmark ruling of the Court of Justice of the European Union on airport charges: Case C-379/18

This article focuses on a ruling of the Court of Justice of the European Union concerning the competence of the Independent Supervisory Authorities to determine of airport charges. Through analysis of the ruling in question and identification of the peculiarities of the Italian system, this article provides an overview of the main legal barriers to the implementation of Directive 2009/12 on airport charges.

Case Comment: The CJEU Expands the Scope of the Definition of Sensitive Personal Data in the GDPR: Case C-184/20 Vyriausioji tarnybinės etikos komisija

This was a judgment of the Grand Chamber in the Court of Justice of the European Union, after a request for a preliminary ruling was made by a regional administrative court in Lithuania. It is significant because it has broadened the scope of the definition of sensitive personal data in Article 9 of Regulation (EU) 2016/679 (the ‘GDPR’). The judgment expands the prohibition of the processing of sensitive data to include inference. This will have repercussions for companies, public bodies and registers that make personal data publicly available.

Court of Justice of the European Union Case C-115/24 UJ v Österreichische Zahnärztekammer (Supreme Court Austria)

This article analyses the recent judgment in Case C-115/24 UJ v Österreichische Zahnärztekammer, which addresses the complex issue of jurisdiction in cross-border healthcare delivered via telemedicine within the European Union. Case C115/24 of the Court of Justice of the EU (CJEU) concerns questions about which national law applies to crossborder telemedicine services within the EU. The case before the CJEU submitted by the Austrian Supreme Court considered whether telemedicine services should be governed by the laws of the Member State where the provider is established or where the patient resides. The CJEU clarified that telemedicine services are subject to the legislation of the provider’s Member State, provided the service is delivered exclusively via information and communication technologies without simultaneous physical presence. The ruling further distinguished between telemedicine and in-person care, holding that local law applies to physical healthcare delivered in the patient’s country. This article highlights the implications for telehealth providers, who must ensure compliance with relevant national and EU laws when offering cross-border services.

China's regulation of artificial intelligence – progress and challenges

Artificial intelligence (AI) is developing rapidly in China, with the number of patents and the size of the market both ranking highly among countries. However, this rapid development has posed new challenges to the legal framework, ethical norms and social governance, prompting China to continuously adjust and improve the relevant regulatory system.

A Brief Discussion on the Implications, Regulation and Prospects of AI in Dispute Resolution Practice with a Focus on China

China’s restrictions on cross-border transfer of personal information: an update on regulatory policy and practical implications

This article will outline the development of China’s restrictions on the cross-border transfer of personal information (PI export), detailing PI export mechanisms provided by the Personal Information Protection Law. It will also explain the practical implications of the restrictions.

Utilising Generative AI in Businesses: Risks and Best Practices

The rise in popularity of generative artificial intelligence (‘generative AI’) has ignited the discussion on whether junior employees can be replaced by it. Some have gone to the extent of questioning whether professionals, such as lawyers, can also be replaced by generative AI. Is it wise to replace junior employees or lawyers with generative AI? What factors should be considered before deploying generative AI tools in your business? To consider these questions, we first need to understand the basic workings of generative AI and what it can offer. Fundamentally, AI is intelligence that is not biological. The general understanding is that machines will be ascribed with this intelligence. These machines have the ability to interpret, learn from and process external data in a way that is similar to the capabilities of the human mind. Generative AI is a type of AI program that generates content from a data set. It uses deep learning, a type of machine learning system that behaves like a neural network to simulate the functions of a human brain. In other words, it can mimic human intelligence by exhibiting analytical skills to create new content. Not only can generative AI be utilised in chatbot programs to create text, but it can also be used in programs that can create images, sound or videos. This article will consider two major forms of generative AI, in the context of risks to businesses: chatbots using generative pre-trained transformer technology programs; and image generating programs.

Alipay and the impact of e-payment systems resulting in new regulations in China and other jurisdictions - China Working Group

By Yi-An (Ann) Lai. Alipay and the impact of e-payment systems resulting in new regulations in China and other jurisdictions.

The SEC’s tough stance on intermediary institutions: compliance and litigation risks

This article discusses the recent SEC case involving PwC and highlights the wider implications for intermediary institutions providing professional services in a tightened regulatory and enforcement regime in China’s banking and financial sector.

China’s Foreign State Immunity Law 2023: Implications for Enforcement of Judgments and Arbitral Awards against States and State Entities in the People’s Republic of China, Hong Kong, and Macau

The new Foreign State Immunity Law 2023 of the People’s Republic of China came into force on 1 January 2024. This shifts the country (as well as its special administrative regions, Hong Kong and Macau) away from absolute state immunity to restrictive state immunity, bringing it more in line with the relatively prevalent practice among the international community. This article discusses the status of state immunity in public international law, analyses the new law’s provisions and examines practical challenges that will be faced by those seeking to utilise this law to enforce judgments or awards against foreign states and state entities, and the new law’s innovations that go beyond the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004 and the UK State Immunity Act 1978.

Mediating Disputes Involving Chinese Parties

Mediation is on the rise internationally as a means to settle disputes in a cost-effective manner. Chinese parties appear to be increasingly interested in mediation as an option. This article examines the evolving landscape of mediation in China and internationally. It considers how mediation for Chinese parties is evolving and whether mediation is a good option for Chinese parties in cross-border disputes. Commercial mediation has seen remarkable growth, bolstered by a supportive PRC judicial system and legislative initiatives encouraging parties to find harmonious ways to resolve disputes. The article analyses the three primary types of mediation in China: people’s mediation, administrative mediation, and commercial mediation. It also looks at mediation rules and proceedings in common law jurisdictions, such as Hong Kong, Singapore, and the United States. The article anecdotally considers the cultural elements, emphasising the Chinese parties’ preference for evaluative mediation styles as a reflection of civil law. Through case studies of international disputes involving Chinese and US parties, the article illustrates the practical dynamics of mediation involving Chinese parties and underscores the importance of cultural sensitivity in international mediation. As Chinese parties continue to go global, mediation is emerging as an attractive option for efficient and cost-effective dispute resolution. This analysis assesses whether the promotion of mediation is yielding tangible outcomes and explores the future of mediation involving Chinese and foreign parties.

A framework for digital platform regulation

In rapid succession, a number of jurisdictions have moved away from focusing on antitrust enforcement to the proposed regulation of digital platforms. Ostensibly, the regulatory focus is about competition and potential concerns that traditional ex post enforcement may be ill-equipped to address the power of digital platforms. This article focuses on the realities of what platform regulation might mean, and how to better frame and structure the nature of appropriate regulation. This article first identifies a number of the different approaches to regulation that various jurisdictions have put forward, and then lays out six basic principles for platform regulation to help address some of the potential harms that such approaches may unwittingly be pursuing.

Observations on new trends in Chinese anti-corruption laws and practice

In the Chinese legal system, provisions addressing commercial bribery are dispersed across various legal instruments and judicial interpretations. Among the different legal authorities in China, the core provisions guiding anti-corruption can be found in the Anti-Unfair Competition Law and its draft Amendment (issued in 2022 and still open for public comment); the Criminal Law of China, along with its amendments; and the Supervision Law of China and its accompanying regulations for implementation.

Procedure and supporting documentation for application to the Greek non-dom taxation regime

Article 5A of Law 4172/2013, which applies from the 2020 tax year onwards, states that an individual who transfers their tax residence to Greece using the new procedure outlined in this article can be subject to an alternative method of taxation for income generated abroad.

Creating and implementing a diversity and inclusion strategy for the law firm – IBA Annual Conference Paris, 31 October 2023

In this session, Antonia Verna and Pavla Prikrylova presented the European Regional Forum Diversity & Inclusion Working Party with the Diversity and Inclusion Toolkit for Lawyers. The Toolkit was developed by the International Bar Association (IBA) to provide law firms with an action plan to embed the core principles of diversity and inclusion into their organisations.

Practical guide on the preferential tax regimes available for individuals moving their tax residency to Greece

Since the end of 2019, Greece has been on list of countries that have enacted favourable tax regimes, designed to attract individuals to move their tax residence to the country. These regimes are the non-dom tax regime, the foreign pensioner’s tax regime and the employee and self-employed regime, known as 5A, 5B and 5C regimes, respectively, as per the corresponding articles in the Income Tax Code, which introduced them. This article provides an overview of the most important features of each of these tax regimes, considering the most recent amendments and administrative interpretations since their enactment.

Supply Chains: an Analysis of Nearshoring and Friendshoring Trends

Organising a worldwide operation of supply chain distribution is not easy; on the one hand, one needs a detailed view and analysis of customs and labour considerations, taxes, costs of transport, cultural similarities and differences while, on the other hand, one needs an overview of all these issues and to be able to consider them as a whole. It is in this context of strategic decision-making that the concepts of nearshoring and friendshoring arise. These two concepts are of central importance and require a differentiated understanding of the associated legal and cultural intricacies. The 2020 pandemic came about in a context in which the model of productive globalisation based on international supply networks was already showing signs of exhaustion or even reversal owing to many reasons (environmental concerns, protectionist measures, geopolitical crisis, etc). This could be seen in companies’ decisions to return certain segments of production to their countries of origin or to nearby countries. This article deals with the advantages, disadvantages and potential risks of nearshoring and friendshoring, with a special emphasis on Argentina. It also looks at the general significance of near- and friendshoring in the future. In addition, it will highlight the legal considerations that lawyers need to pay particular attention to in the context of near- and friendshoring.

Acts of God and force majeure during Covid-19 in Mexico

Due to the Covid-19 pandemic, the defaults of certain obligations of agreements by the parties who have entered into them, produced by the lockdown ordered by governmental authorities and the sanitary restrictions caused by the pandemic, has caused the analysis of the force majeure and acts of God clauses, in order to exclude liability for such defaults, caused by the incapacity to fulfil certain obligations under Mexican legislation.

US whistleblower developments for multinational employers

Whether a practice or policy gives rise to whistleblower risk depends on the court that will rule on a claim and the priorities of the presidential administration. Recent developments illustrate the importance of these considerations, with federal appellate courts diverging on their approaches to the adverse-action and causation elements of a whistleblower claim and the Securities and Exchange Commission returning to aggressive enforcement of prohibitions on restricting employees’ ability to report legal violations to regulators. This article discusses these concerns and what multinationals can do to address them.

Corruption in Quebec’s construction industry: cleaning the Augean stable

Sharon Vogel and Emira Bouhafna provide a brief overview of Canada’s legislative regime in respect of bribery and corruption, summarise some of the key findings of the Charbonneau Commission and analyse the legislation introduced to date to implement the Charbonneau Commission’s recommendations.

The European Commission, Fiscal State Aid and its Incursion into Member States’ Tax Autonomy

The European Commission has commenced State aid investigations into multinationals’ tax arrangements, including in respect of Apple, Fiat, Starbucks and Amazon. Developments during the past ten years have been seismic, the debates have been fierce and press coverage has been unparalleled. There are both legal and non-legal reasons for this. The main non-legal reasons are the involvement of high-profile multinational companies as alleged aid beneficiaries, the ensuing diplomatic spat between the EU and the US over the alleged ‘targeting’ of US companies and the nexus between the investigations and the EU’s fight against corporate tax avoidance. The main legal reasons are explored in this article. In this article it is asserted that the Commission has overreached and exceeded its mandate by advancing novel legal theories in relation to EU State aid law. More specifically, it has endeavoured effectively to circumvent the unanimity requirement in adopting EU tax legislation by using its exclusive competence in State aid matters to push Member States into adopting OECD taxation standards. The author seeks to demonstrate that, despite some setbacks, the pendulum seems to be swinging towards more deference towards Member States’ tax autonomy in areas where there is no harmonised EU law, and that this is a positive development for two reasons. First, in terms of legal certainty, it provides closure in a series of ‘open’ matters. Second, the Court of Justice of the European Union (CJEU) has sought to strike the right balance between exclusive EU competence (State aid law) and Member States’ tax sovereignty. Through the analysis that follows, the article will endeavour to shed light on a number of questions, as seen through the case law. First, what are the limits to the EU getting involved in national tax policy? Is it legitimate to circumvent those jurisdictional restrictions through the use of State aid policy? Second, what was the logic of the Commission’s approach and what were its weaknesses? Third, did the CJEU fully accept the Commission’s approach? The structure is as follows. The first part will provide some State aid background for those who are not familiar with EU State aid law and recent seminal cases. The second part analyses what the case law means for Member States’ tax sovereignty, while the third part concludes.

E-pharmacies and the law: an uneasy balance

The pharmaceutical supply chain in India has traditionally relied on small neighbourhood pharmacies for last-mile distribution. Such pharmacies have proliferated to the point where there is often one on each street, and several within a square mile, in every city. Access to brick-and-mortar pharmacies has therefore generally not been a problem in India, at least in most urban areas, and the industry has prospered over the years.

The climate crisis: are we building back better?

Spiralling energy prices due to Russia’s invasion of Ukraine should be accelerating the transition to low-carbon fuels. Global Insight assesses whether the world is slipping back on its post-pandemic pledges to build back better.

An Analysis of the Broader Implications of the European Commission’s International Skating Union Case

On 8 December 2017, the European Commission decided that the International Skating Union’s (ISU) Eligibility Rules breached EU competition law. The rules provided that an athlete could be sanctioned for participating in an event not authorised by the ISU. The Commission thus examined whether the rules unlawfully restrict competition under Article 101 of the Treaty on the Functioning of the European Union (TFEU) by establishing a pre-authorisation procedure for third-party organisers and imposing sanctions