Threats to Non-U.S. Companies from the U.S. Foreign Corrupt Practices Act

By David Smyth, Brooks Pierce

Among the international business community, few law enforcement matters in recent years have attracted as much interest as the U.S. Foreign Corrupt Practices Act ("FCPA"). Enforcement of the FCPA – conducted by both the U.S. Department of Justice and the U.S. Securities and Exchange Commission ("SEC") – has been intense and increasing over the last decade. As Assistant Attorney General Lanny Breuer said late last year, "FCPA enforcement is stronger than it's ever been – and getting stronger." And while the FCPA is a United States law, it poses great risks for non-United States companies and individuals; severe liability can follow from disregarding it.

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Poorly conceived patent applications hinder inventions

There is a trend proliferating: With increasing frequency, companies are attempting to register even small changes to an already introduced product as a patent. Although, often without success. Only one in four applications are accepted. It is the truly innovative developer who must bear the consequence, in the form of a longer processing time with the patent authorities. Experts at the OECD therefore warn, in their publication "Science, Technologie and Industry Scoreboard 2011", that patent applications of lower quality could delay the introduction of innovations to the market.

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The long path to a standardized European patent

Globalization quickly covers over economic weaknesses. One of Europe's weaknesses is the fact that patent costs are too high when compared internationally. Therefore, in future innovations should become more easily and inexpensively protected with an EU patent. Following successful negotiations regarding European patents with a standardized effect, twelve of the 27 EU Member States decided to suggest to the EU Commission that the process of so-called reinforced cooperation is introduced. This should prevent a blockade by the individual states.

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Graz, Austria

Enforcement of Foreign Arbitral Awards in Austria

By Mario Kapp and Eva Pany, KAPP & PARTNER Rechtsanwälte GmbH

Arbitration is becoming increasingly important. It is the rule rather than the exception for international disputes. The reasons for this are obvious; in addition to the frequently mentioned advantage of greater flexibility compared to state court proceedings, the possibility of appointing specialised arbitrators, the shorter duration of the procedure, and, above all, the international enforceability of arbitration awards, are essential factors in why businessmen decide to conclude arbitration agreements. Both domestic and foreign arbitral awards are enforceable in Austria and are not complicated. Still, legal assistance is advisable to avoid potentially costly errors.

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Zagreb, Croatia

Closing a Legal Entity in Croatia

By Biljana Svaljek, Infokorp

Some projects are only designed to last a few years. Usually, in Croatia, a legal entity is established in order for a project to run smoothly or to receive government incentives. Since the annual financial statements have to be submitted even when there were no transactions, entrepreneurs should close the company when it is no longer needed. There are two ways of closing a legal entity that do not include filing for bankruptcy: the regular liquidation process and the shortened cessation of business activity without liquidation.

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Sydney, Australia

Is a Corporate Trustee’s Right of Indemnity “Property of the Company”?

By Andrew Lacey and Danyal Ibrahim, McCabe Curwood

On 19 June 2019, the High Court of Australia handed down a significant decision pertaining to corporate trustees in Carter Holt Harvey Woodproducts Australia Pty Limited vs Commonwealth of Australia [2019] HCA 20, also referred to as the “Amerind appeal”. It is settled law in Australia that although personally liable for trust liabilities, a corporate trustee has a right to use trust assets to indemnify itself in respect of trust liabilities. In the Amerind appeal, the High Court was faced with the question of whether this right of indemnity was “property of the company” within the meaning of Australian corporations law. The trial judge answered this question in the negative, reasoning that the right of indemnity was “held on trust for the trust creditors” rather than personal property of the trustee.

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Sydney Town Hall and Queen Victoria Building

The ATO’s Backflip on a Receiver’s Obligation to Retain Money

By Tony Nunes and Harrison Dell, Kelly+Partners Chartered Accountants

The Australian Taxation Offce has departed from its view that a receiver has an obligation to “account for” tax out of income, profit, or gains derived by them in their representative capacity. The ATO backflip is due to the recent High Court decision in Commissioner of Taxation vs Australian Building Systems (in liq) [2015] HCA 48.

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New York, USA

Second Circuit Holds Bankruptcy Code’s Avoidance Provisions Apply Extraterritorially

By Leslie A. Berkoff, Moritt Hock & Hamroff LLP

On 25 February 2019, the Second Circuit Court of Appeals issued a decision in the case of Picard, trustee for the liquidation of Bernard L. Madoff Investment Securities LLC (“Madoff Securities”). The trustee alleged that Madoff Securities fraudulently transferred property to certain foreign feeder fund customers, who subsequently transferred it to other foreign entities. The trustee sought to recover these funds from the appellees, contending that the transfers were avoidable as fraudulent conveyances pursuant to §548(a)(1)(A) of the Bankruptcy Code, and that they should thus be recoverable under §550(a)(2).

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