Law

Business rescue as an alternative to liquidation in South Africa

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By Cornelia van Heerden, Heyns and Partners Inc

With the inception of the Companies Act 2008 (hereinafter referred to as 'the Act), South African corporate law practitioners were recently introduced to a new concept, the principle of Business Rescue.

Cakes, Religion and Sexual Orientation

By Merrill April and Emily Parker, Memery Crystal LLP

What happened when the Northern Ireland Court of Appeal (NI CoA) considered the conflict between religious beliefs and same-sex marriage in the context of a ‘Bert and Ernie’ cake? The decision in Lee v Ashers Baking Co Ltd [2015] NICty 2, handed down on 24 October 2016, concerns the treatment of conflicting protected characteristics – sexual orientation and religious beliefs.

Changes to Australia’s foreign investment landscape

By Elizabeth McDonald, McCabes Lawyers

Foreign investors in Australian real estate will need to ensure they comply with a raft of changes to Australia’s foreign investment framework, while the signing of the China and Australia Free Trade Agreement expands opportunities for Chinese investment in Australian property.

Changes to insolvency laws in Australia

By Andrew Lacey and Danyal Ibrahim, McCabes

The Australian Government recently introduced the Insolvency Law Reform Bill 2015 into Parliament. The reforms are part of a wider government initiative, labelled the ‘National Innovation and Science Agenda’, which are designed to boost innovation and entrepreneurship amongst Australians.

Changes to lien regulation in Hungary

By Dr. Attila Kovács, Kovács Réti Szegheõ Attorneys at Law

The new Civil Code has brought fundamental changes to the regulation of lien. The establishment of lien has been simplified, the rights of the lienor concerning the enforcement of the pledge have been broadened and new legal institutions have been introduced.

Collecting extra judicial costs in the Netherlands

By Johan. F. Langelaar and Michiel Teekens, TeekensKarstens advocaten notarissen

Creditors involved in international business can optimise their (legal) collection position by knowing and applying the (national) rules of extra judicial costs collection and by using a thorough debt collection service provider in the country in which the debtor is located.

Commercial dispute in Japan – litigation or arbitration?

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By Seiichi Yoshikawa, Koga & Partners

Lawyers often face the question whether to resolve a commercial dispute in court or via arbitration. In Japan, arbitration is not necessarily considered a favourite forum (Each year twenty or so arbitration cases are filed with the Japan Commercial Arbitration Association).

Commissions to be included in the payment of annual leave?

By Jeffrey L. Kenens, TeekensKarstens advocaten notarissen

The EU’s Working Time Directive (2003/88/EC) requires EU countries to guarantee paid annual leave of at least 4 weeks per year for all employees. In some cases, the question arises as to what amount the employer must pay an employee while on annual leave. Is it just the gross salary or does one have to include other elements of the total remuneration package as well, like commissions received by the employee in the past?

Conflict of Law Rules of Japan

By Seiichi Yoshikawa, Koga & Partners

In Japan, a new statute on conflict of laws was promulgated in 2006. Under the new law, the governing law on contract is the law that the parties have selected, and if the parties have not so selected, the law of the place which has the most significant relationship with the contract.

Copyrights protection in Poland

By Magdalena Michalska, Sójka Maciak Mataczyński Adwokaci sp.k.

Polish Copyright Law seems to be overly generous to the rightsholders whose economic rights have been infringed. However, these regulations are subject to growing criticism.

Corporate Debt Restructuring - A new fad or path to future destruction

By Sanjeeva Narayan, Ashwani & Associates

While Greece may be leading the way in terms of restructuring of debt, corporations in India have also adapted to the fad and have been applying for restructuring left right and centre. The slowdown in the economy after 2010-11 has had a ripple impact on the fortunes of India Inc. and lenders alike. With gross domestic product (GDP) growth decelerating from 8.4 per cent in 2010-11 to the sub-five per cent level in the first three quarters of the current financial year, the number of companies seeking succour from lenders under the aegis of the corporate debt restructuring (CDR) cell had almost doubled since 2011.

Corporate Restructuring in Malaysia

By KC Chia, KC Chia & Noor

“Corporate restructuring is an effective tool to resurrect distressed companies with a view of giving them a new lease of life, therefore enabling them to positively contribute to the nation’s future social and economic development…” Many companies in an economic downturn are making losses and may find themselves in a position of insolvency, meaning that they are unable to pay their debts as and when they fall due. Being trapped in such position is precarious, as there is a risk of the company being wound up, causing undue hardship to employees, creditors and shareholders alike. In addition, creditors will rush to enforce their debts, which is usually  disastrous state of affairs. This may eventually lead to the end of a company following a harsh liquidation process, which is costly, less efficient and time consuming. However, there are revival mechanisms in place to address such issues, depending on the root cause.

Current position regarding working time in France

By Marina Doithier, LMBE Avocats

Working time in France has been the subject of two major reforms (in 1998 and 2000) setting the legal duration of full-time work at 35 hours per week, as an annual average, instead of 39 hours previously, in return for more flexible working hours.

Damages in Fraud Claims

By Nicholas Scott and Eleanor Hassani, Memery Crystal

In the recent case of OMV Petrom SA v Glencore International AG [2015] EWHC 666 (Comm), Flaux J, sitting in the Commercial Court, had to determine the correct measure of damages in a case where the seller, Glencore, had fraudulently delivered crude oil of a blend which differed from that specified in the contract. The Court determined that the correct measure of damages was the difference between the price paid for the shipments and the actual value of what was delivered as at the date of delivery. Although the case arises in the context of oil trading, the principles are applicable to all fraud claims, regardless of subject matter.

Data Breaches Come in Many Forms

By Dennis Kennedy, Dressman Benzinger LaVelle psc

Reports of data breaches are appearing in the media at an alarming rate. No one industry is safe from cyber attacks. In fact, recent attacks have been made against financial institutions, retail outlets, and health insurance companies. Most recently, Anthem announced a data breach affecting more than 80 million current and former customers. While cyber attacks across various industries have been grabbing the headlines, data breaches come in many forms.

Debt collection by banks/financial institutions in India

By Sreeraj Ghosh, L.B. Jha & Co. Chartered Accountants

Banks and financial institutions have been experiencing difficulties in recovery of dues from their Non-Performing Assets (NPAs) and enforcement of securities charged with them because of protracted legal hassles. For this reason, "The Recovery of Debt Dues to Banks and Financial Institutions Act, 1993" was enacted to facilitate faster recovery from NPAs. Subsequently, Debt Recovery Tribunals (DRTs) were established for dealing exclusively with debt recovery applications of banks and financial institutions. Debt Recovery Appellate Tribunals (DRATs) were also established and have now been functioning for more than a decade.

Debt collection in Cyprus

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By Melina Karaolia, M. Eliades & Partners LLC

In a euro-crisis reality, when clients don't pay their dues, it means business and cash flow shrinks even further. Debt collection in Cyprus is definitely a challenging task.  The process is usually initiated with a notice to the debtor. If there is no response, a claim is filed to the District Court that has jurisdiction. The claim is served upon the debtor who then has ten days in which to file an appearance before the Court.

Debt collection practices in Japan

By Seiichi Yoshikawa, Koga & Partners

In Japan, the debt collection process is normally started by an attorney sending an official letter of demand for payment to the debtor. If this letter turns out to be unsuccessful, the creditor commences legal action.

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The Legal Disclaimer and the Privacy Statement indicated above shall be governed by and are construed in accordance with Swiss substantive laws (excluding the rules of the conflict of laws) and the courts of Zurich, Switzerland shall have exclusive jurisdiction in any possible dispute.


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