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Earn-out clauses and using an SPA to provide a purely symbolic purchase price

The article analyses the validity of earn-out clauses and the legitimacy of the provision of a purely symbolic price in sale and purchase agreements.

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.

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.

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 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.

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.

Zika virus outbreak prompts focus on Latin American abortion laws

The Zika virus outbreak in Latin America and the alleged dangers it poses for unborn babies have renewed calls to relax the region’s strict abortion laws. The outbreak began in Brazil in April last year and spread to other countries across South America, Central America and the Caribbean. In February 2016 the World Health Organisation said there was growing evidence to suggest a causative link between the spread of the virus in Brazil and the country’s rising incidence of microcephaly – a rare condition w

The constitutional right to marry: the Cayman Islands

By David Ryken. The Constitutional Right to Marry: The Cayman Islands - LGBTI Committee newsletter article, May 2020.

Navigating the maze: implications of the EU’s AI Regulatory Framework for the electronic communications sector

: The proposed AIA and the proposals of the PLD II and AI Liability Directives of the European Commission will significantly impact AI systems within the electronic communications sector. This article examines key components of the impending AI Regulatory Framework and its potential effects on the electronic communications sector.

The EU Court of Justice rules on zero-rating practices under the Net Neutrality Regulation

In Telenor Hungary adopted on 15 September 2020, the European Court of Justice (Grand Chamber) has, for the first time, interpreted Regulation 2015/2120 on the ‘open internet’ (the Net Neutrality Regulation). Through this preliminary ruling, the Court gives some guidance on the validity and limits of so-called ‘zero-rating’ offers

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.

Predicting the unpredictable: Covid-19 and its impact on the energy industry

On 30 January 2020, the World Health Organization declared Covid-19 to be a public health emergency of international concern. On the same day, the China Council for the Promotion of International Trade (CCPIT) announced that it would issue ‘force majeure certificates’ to affected Chinese companies to help minimise economic losses arising from the outbreak and consequential events.

Contractors’ claims for expropriation of contractual rights on the basis of international investment treaties

Italy: the rise of utility-scale energy storage technologies

Energy transition – the need to achieve progressive and complete decarbonisation by 2050 – presents Italy with important challenges in increasing energy production from renewable resources on the one hand, and the necessary progressive increase in the availability of utility-scale energy storage capacity on the other. The Italian legislator has acted to guarantee a long-term supply system of new storage capacity by introducing a mechanism based on competitive, transparent and non-discriminatory auctions. The system recognises the right to an annual remuneration, in exchange for the provision of the awarded capacity as part of the national energy market.

Report launch: Advice on Promoting More Effective Investigations into Abuses against Journalists

This session at the IBA’s Virtually Together Conference launched the fourth report by the High Level Panel of Legal Experts on Media Freedom to which the IBA’s Human Rights Institute (IBAHRI) acts as Secretariat. The report author, Nadim Houry, was joined by members of the High Level Panel and other legal experts to explore media freedom in crisis and the report’s recommendations.

Regulating the flow: competition law and oil and gas transfers in Angola

The introduction of the competition framework is reshaping how oil and gas transactions are operated in Angola. Although recent practice by the Angolan Competition Authority appears to be consistent, a formal position can help to bring clarity. Parties should adjust completion conditions accordingly to strike the right balance between execution and compliance risks.

M&A update: IBA Finance and Capital Markets Tax Virtual Conference 2021

A report on a conference session at the 10th annual IBA Finance and Capital Markets Tax Virtual Conference 2021. The panel discussed the current trends in merger and acquisition (M&A) structuring and taxation from a multi-jurisdictional perspective, focusing on Europe, the United Kingdom and United States.

Cross-border M&A tips and traps (2023)

The panel discussed a selection of developments and trends in cross-border M&A structures. The panel started with cross-border demergers, split-ups and spin-offs. Various Canadian, Irish and Swiss structures were presented. Then cross-border leveraged buyouts were discussed based on a German case study. The panel continued with cross-border joint ventures, zooming in on Pillar II complications and a recent Spanish case. The final developments presented were migrations and conversions, mainly focusing on European Union developments in this respect.

Current legal developments (IBA Annual Conference, 2019)

Current Legal Developments. Report on a session of the Corporate and M&A Law Committee at the IBA Annual Conference, Seoul Tuesday 24 September 2019

English Anti-Suit Injunctions in Support of Arbitration

This article considers the position under English law for parties seeking to injunct proceedings in other jurisdictions in breach of a valid agreement to arbitrate. English courts have shown great willingness to grant such injunctions in appropriate cases. Recent case law demonstrates the English courts’ commercial mindedness and adherence to a strongly pro-arbitration policy. However, different considerations apply in instances where the non-arbitration proceedings are issued in a European Union state.

Selected distressed and non-distressed deals during the pandemic

The pandemic has seen a change in the landscape of deals, which raises novel issues for advisers. The use of Special Purpose Acquisition Companies (SPACs) has dramatically increased. In an effort to deal with business uncertainty, contingent consideration and rollover equity are becoming a greater component of consideration paid by buyers. Distressed property sales have grown, which raises issues on how to deal with existing debt and limit adverse tax effects for borrowers and lenders alike. Broken deals have increased, raising even more complexity.

M&A transactions under the shadow of Covid-19

This article focuses on the potential effects of the Covid-19 pandemic on M&A transactions. The effects on several phases or instruments such as due diligence, material adverse effect clauses, price Adjustments and earn outs are discussed.

Trends in private M&A: representations and warranties indemnity insurance (IBA Annual Conference, 2019)

Trends in Private M&A: Representations and Warranties Indemnity Insurance. Report on a session of the Closely Held and Growing Business Enterprises Committee and the Corporate and M&A Law Committee at the IBA Annual Conference, Seoul Wednesday, 25 September 2019

The Impact of Brexit on Dispute Resolution: EU and UK Perspectives

The United Kingdom’s withdrawal from the European Union (Brexit) has brought about significant changes to international dispute resolution in the UK and, insofar as disputes have a UK nexus, in the EU. In particular, since the end of the transition period, the Brussels Recast Regulation, which provides, inter alia, for the free circulation of judgments between EU Member States, no longer applies in the UK. Neither does it apply in the EU to judgments rendered by UK courts. Similarly, the UK has lost its access to the Lugano Convention. As the EU-UK Trade and Cooperation Agreement does not include rules on private international law, many important questions for cross-border dispute resolution between the EU and the UK are now determined by other multilateral treaties (notably the Hague Convention on Choice of Court Agreements) and domestic private international law rules. This article discusses the impact of Brexit on the litigation and arbitration of commercial disputes from both EU and UK perspectives. In particular, this article considers the impact of Brexit on the following key issues: jurisdiction agreements and the enforcement of foreign judgments, choice of law and arbitration. The article analyses the changes brought about by Brexit to the legal landscape for dispute resolution and considers the consequences such changes may have for parties’ choice of law and forum.

Closely Held and Growing Business Enterprises Committee second virtual retreat

By Giuseppe Coco. Closely Held and Growing Business Enterprises second virtual retreat.

Lessons from recent Italian Data Protection Authority decisions issued against Eni Gas e Luce and TIM

Almost two years after the full applicability of the GDPR, the Italian Data Protection Authority has sanctioned two operators, Eni Gas e Luce and TIM. The fines were raised in connection to absence or inadequacy of business operating procedures concerning the processing of clients’ data for marketing purposes

Yellow flag: is the due diligence procedure taking longer than before? If so, how can you be prepared for it?

Besides the fact that due diligence procedures have been one of the main steps in mergers and acquisitions (M&A) and investment transactions, the need for an extended timetable to complete the diligence has been noted. This article explores why this may happen and how companies can predict and navigate this trend.

The guarantees and precautions of sellers regarding the risk of default of the buyer's obligation to pay the purchase price in M&A transactions in the Brazilian context

Mergers and acquisitions (M&A) transactions are growing rapidly in Brazil and are becoming increasingly complex and detailed. This article aims to present some precautions and safeguards that sellers must take into account when negotiating the terms of share purchase agreements (SPA), regarding the risks of default of the buyer’s obligation to pay the purchase price.