Personal Income Tax: COVID-19 Telecommuting Addressed – NYC

Last week, New York announced that for a nonresident whose primary office is in the state, days telecommuting during the pandemic are considered days worked in New York, unless the employer has established a bona fide employer office at the employee’s telecommuting location. Generally, unless the employer specifically acted to establish a bona fide employer office at the telecommuting location, the nonresident employee will continue to owe New York income tax on income earned while telecommuting.

For more information, feel free to contact us directly.

Robert Hoberman

Managing Partner, Hoberman & Lesser CPAs, LLP

Why Vietnam Has Become Appealing for US Businesses in Asia

  • Vietnam and the United States celebrated 25 years of diplomatic relations in July this year – a testament to improving bilateral and economic ties since the Vietnam War.
  • Vietnam has emerged as an ideal alternative manufacturing destination to China for US businesses, in part due to the US-China trade war and disrupted supply chains due to the coronavirus pandemic.
  • Vietnam Briefing discusses trends in the Vietnam-US relationship, growing economic ties, and how US businesses can leverage and benefit from moving their production to Vietnam.

Following four decades since the end of the Vietnam War, Vietnam’s relationship with the US has changed significantly.

After the Vietnam War in 1975, the US and Vietnam announced normal diplomatic relations on July 11, 1995. This year in July, the US and Vietnam commemorated 25 years of diplomatic relations – with the US congratulating Vietnam on its ASEAN chairmanship and reaffirming its support for Vietnam including peaceful resolution of disputes, rule of law, freedom of navigation, and unimpeded commerce among others.

Since formalizing diplomatic relations, the US and Vietnam have strengthened their relationship with bilateral trade increasing from US$450 million in 1994 to US$77 billion in 2019. The US had become Vietnam’s largest export market with Vietnam becoming the US’ quickest growing export market.

Vietnam launched major economic reforms known as ‘Doi Moi’ in 1986, prioritizing building a market economy and creating opportunities for private-sector competition. With a growing population, this presented a sizeable investment for international businesses. The US and Vietnam worked for several years negotiating a bilateral trade agreement, which came into force in 2001.

The deal helped lift several non-tariff barriers while lowering tariffs on a variety of goods on an average between three and 40 percent including on agricultural, animal products, and electronics. Vietnam was also granted the most favored nation (MFN) status, which was important to become a part of the World Trade Organization (WTO).

Former US President Barack Obama pushed for the Trans-Pacific Partnership (TPP) – a free trade agreement (FTA) involving ASEAN countries as well as the US and Australia. Vietnam was seen to be one of the biggest beneficiaries of this FTA, gaining access to the US market. However, all this came to a halt in 2017, when current US President Trump, disbanded the deal, claiming it would undermine US businesses and jobs.

Nevertheless, Vietnam and 10 other countries went ahead without the US and signed the Comprehensive Agreement for Trans-Pacific Partnership (CPTPP) in March 2018. Despite the setback, bilateral trade between the US and Vietnam has grown and analysts expect the trade relationship between the two countries to continue thriving.

Positive relationship but not without its setbacks

Nevertheless, there are challenges. In 2019, Trump in an interview said that Vietnam was “almost the single worse abuser of everybody,” prompting concerns from investors that Vietnam’s favorable relationship with the US was over. Trump has also complained about the US trade imbalance with Vietnam. Vietnam’s trade surplus with the US had grown to US$600 million, according to a Bank of America Merrill Lynch study.

The US in May 2018 imposed duties on Vietnamese steel products that originated in China. Earlier in December 2017, the US imposed duties on steel products specifically on Vietnam that originated from China as they evaded anti-dumping rules. Most recently, on August 25 this year, the US Treasury Department determined that Vietnam manipulated its currency in 2019, possibly opening the door to tariffs.

Apart from this, the US has pointed to other barriers to trade including inadequate intellectual property protections and food safety regulations, restrictions on the internet and digital economy, and other governance issues.

Security relationship adds stability to improving bilateral ties

In 2018, the USS Carl Vinson – a US Navy aircraft carrier – made a historic port of call in Vietnam. That same year, Vietnam also participated for the first time in the Rim of the Pacific (RIMPAC) – a maritime military exercise hosted biennially by the US. The US lifted a ban on legal arms sales to Vietnam in 2016; both countries have been forging closer military ties and high-level military exchanges.

For Vietnam, this has been to oppose China’s assertive stance in the region, particularly in the South China Sea. Building upon this relationship, Hanoi was also picked for the of the US-North Korea summit in February 2019, further cementing Vietnam’s stature on the world stage.

Alexander Vuving, an expert on Asia security at the US Defense Department Institute said that “Vietnam holds a key to the regional balance of power”. If this view is shared by the US, it will continue to have a positive and budding relationship with Vietnam, particularly if Vietnam is seen as a counter to China.

It’s ‘advantage Vietnam’ while US-China trade dispute lingers

The trade dispute between the US and China has had a cascading effect on Vietnam. Vietnam’s exporters have seen an increasing demand for their products, especially garments and textiles. Vietnam has emerged as an alternative to China for investors benefitting from the China plus one strategy that involves investors shifting or expanding to other countries to increase market access.

It is important to note that this was already happening, but the trade war accelerated the process. Dustin DaughertyHead of North American Desk for Dezan Shira & Associates says, “Even prior to the start of the US-China trade war and more recently the outbreak of the COVID-19 pandemic, Vietnam offered the most cost-competitive China alternative for general manufacturing in Asia.

Noted advantages such as a relatively efficient and stable governing structure, regulatory and some cultural familiarity for companies accustomed to doing business in China, highly competitive labor costs, business-friendly tax profile along with generous incentives, and proximity to pre-existing Asian supply chains all recommended Vietnam for foreign investors. These advantages have coupled with significant developments this year to further strengthen Vietnam’s competitive allure for FDI, especially for US business.”

Driven by rising labor costs, the need for diversification and the government’s focus shifting from labor-intensive sectors to high-tech industries, US firms operating in China have slowly shifted their manufacturing activities to Southeast Asia, especially Vietnam.

Vietnam US growing trade over the years

Due to its geographic proximity, lower wages, skilled labor, trade agreements, and regional connectivity, Vietnam has emerged as one of the most preferred alternatives for manufacturers. Major US firms such as Apple, Intel, Qualcomm, Universal Alloy Corporation (UAC), Nike, and Key Tronic EMS have already moved production lines to Vietnam due to costs associated with the trade war.

All these factors have helped increase trade between both countries since the normalization of diplomatic relations.

  • Vietnam exports to the US (2019): US$61.35 billion
  • Growth (compared to 2018): 29.1 percent
  • Share in total exports: 23.2 percent
  • Vietnam imports from the US: US$14.37 billion
  • Growth (compared to 2018): 12.7 percent
  • Share in total imports: 5.7 percent

Vietnam’s trade with the US grew at the fastest rate in 2019 at 23 percent compared to 2018.

Top exports to the US from Vietnam include:

  • Phones and spare parts;
  • Computers, electronic products, and components;
  • Garments and textiles;
  • Agricultural products; and
  • Footwear.

Vietnam US trade in 2019

COVID-19 and FDI: How has Vietnam fared?

Vietnam has garnered international praise for its swift and effective response to the COVID-19 outbreak. Vietnam fought the pandemic early, closed its border to foreigners, and imposed social isolation measures on April 1. It lifted these measures on April 22, reopening its economy for business. A recent outbreak in Da Nang showed that Vietnam is not shy and imposed a lockdown on the city to get a grip on additional cases.

Although the country is not immune to the global economic downturn, its prospects for recovery remain positive and are the brightest among Asian countries. This view was also shared by the financial service firm UBS in a research note. In the first half of the year, Vietnam recorded 1.81 GDP growth. Despite being modest, these rates are encouraging considering that Vietnam is one of few countries that achieved positive net growth during the pandemic.

Vietnam’s control of the pandemic and its continued growth has further cemented its position as a safe business environment compared to others. And US businesses have noticed. Apple has planned to shift significant production of its products including its AirPods to Vietnam.

US businesses seek alternative production locations

Even before the pandemic – furniture businesses such as US-based Lovesac and Wanek Furniture – affiliated to US supplier and retailer Ashley Home began moving production to Vietnam. US company Nike now makes most of its shoes in Vietnam while US tech giant Google plans to produce its Pixel smartphones from Vietnam instead of China.

Most recently, US chipmaker Intel, which has already invested US$1 billion in Vietnam is looking to increase its investment at Ho Chi Minh City’s Saigon Hi-Tech Park. Universal Alloy Corporation – a US-based global manufacturer of aircraft components for aircraft companies such as Boeing and Airbus, inaugurated its facility in Da Nang earlier this year.

All these factors make Vietnam a ‘trade war winner’ and an ideal place to do business and attract investment. Yet, Vietnam’s gains have not been contingent on deteriorating US-China ties alone. Vietnam’s skilled and low-cost labor force, infrastructure, stable government, safe environment, and free trade agreements are what US investors are looking for during this unpredictable time. This trend is likely to continue for the foreseeable future. And Vietnam is also well placed to capitalize on disrupted supply chains elsewhere due to the pandemic.

While the trade war and pandemic have created enough push factors to encourage manufacturing businesses to relocate, Vietnam’s great challenge now will be how to manage its growth sustainably.

Moreover, before sizing up Vietnam as a potential destination for relocation, US investors must do their due diligence and consider several factors, such as identifying a location, raw materials, sourcing partners, and supply chain logistics.

Recent Interview with BW Legal World

Ms. Seema Jhingan, Partner of the Firm recently spoke with Ashima Ohri of BW Legal World in an exclusive interview to shed light on the New Education Policy 2020 announced by the Government of India to initiate the long overdue reforms in the Indian school and higher education sector; franchise-model businesses in India; the advent of legal technology and its impact; challenging matters including helping her client bring the very first resort time-sharing concept of holidaying to India; her journey in law and much more.

Read more here: https://bit.ly/2YEDbqQ

Recent Changes to the Romanian Company Law

Since the Romanian Companies Law (Law 31/1990) was passed in 1990 there have been amendments to it to make it more up to date rather than continue it in its original format.

The original law was based on the French company law, and in 1990 there were very few advisors to the Romanian Government who understood corporate law or indeed commercial law.  This law was therefore a first attempt based on limited knowledge and experience of modern corporate law.  Over the next thirty years there have been changes to improve the law and the recent Law signed into effect on the 2nd July 2020 is another example of this.

Law no. 102/2020 brings major benefits and simplifies some of the registration process of companies in Romania, and the shareholders therefore benefiting from a more flexible legal framework regarding the establishment of companies.

The following are changes of which one needs to be aware in respect of formation of companies and the on-going reporting requirements.

Perhaps most important has been the removal of the prohibition and the requirement that a sole shareholder cannot hold the position of sole shareholder in more than one company.  This means that a sole shareholder can now hold the position of sole shareholder in more than one company.  This is very important to companies where they wish to have a number of subsidiaries in Romania.  Often foreign investor companies are themselves single shareholder companies and issues in the past have arisen concerning this when a Romanian company is incorporated.

Art.17.4 of the Law states that on the same premises in a building no more than one company can register their office unless the building or premises are designed in such a way to allow this.  This provision has been abolished.  This has meant that in the past there had to be compartmentation and a different room for each company.  In the previous form of the law the representatives of the company had to give a statement on their own responsibility stating that the building had separate rooms allowing for different companies to be registered.  In the new amended Companies Law such statement is no longer required.

The accommodation contracts allowing for the quick formation of companies (including the contracts using a lawyer’s office) now have to be registered with ANAF before incorporation and proof of such registration lodged with the file at the Trade Registry.  This has in our experience already caused some delay in registration, although other factors have also contributed to the delay.

In the past residential premises in block of flats have been used as office addresses.  This is now relaxed, and it is not now necessary to obtain the consent of adjoining owners of the premises if no activity is carried out at the office.

Finally, companies incorporated where the shareholders are all individuals and who are the ultimate beneficial owners of the company are no longer required to give a statement at the time of incorporation, or annually as previously if there is no change in the shareholding structure.  Companies with corporate shareholders will still be required to give such a declaration.

All these changes will allow the formation and then the on-going operation in relation to company in a more friendly and transparent manner and are changes that will be welcomed by all practitioners.

White & Case Advises EIG on Investment in Solar PV Pipeline

Global law firm White & Case LLP has advised EIG Global Energy Partners (EIG), a US-based investor in the global energy and infrastructure sectors, on the commitment from EIG managed funds of €135 million for ib vogt GmbH’s global solar pv portfolio.

“White & Case is a leading adviser to the global energy industry, said White & Case partner Carina Radford, who led the Firm’s deal team. “Our cross-practice and cross-border deal team on this unique transaction showcased the experience and capabilities our clients rely on when pursuing their strategically important investments.”

ib vogt is a German-based, family-owned company that has developed a global pipeline of solar pv projects in excess of 16 GWp. The investment from EIG will support the realization of ib vogt’s projects in the coming years and contribute to meeting the strong growth in global demand for clean electricity.

The White & Case team that advised on the transaction included partners Carina Radford and Richard Jones (both London), Bodo Bender, Carola Glasauer, Roger Kiem, Andreas Lischka and Markus Burianski (all Frankfurt), Riaz Janjuah (Hamburg), Alessandro Nolet (Milan), Marius Griskonis (New York), Chad McCormick (Houston) and Daniel Hagan (Washington, DC), local partners Cristina Freudenberger and Sebastian Pitz (both Frankfurt), counsel Tallat Hussain (London) and Alexander Born (Frankfurt) and associates Zsofia Cassidy and Lowrie Robertson (both London), Thorsten Rohde (Frankfurt), Kyle Ezzedine and Ariel Oseasohn (both New York) and John Forbush (Washington, DC).

A decision regarding the interest clause in credit contracts

On 19th December 2019, the European Court of Justice gave a judgement for consumer protection concerning the interpretation of Directive 2008/48/EC of the European Parliament and of the Council of 23rd April 2008 on credit agreements for consumers in the case C‑290/19 (RN vs. Home Credit Slovakia a.s.)

The main issue was whether Article 10(2)(g) of Directive 2008/48 must be interpreted as precluding, in a consumer credit agreement, the annual percentage of the total amount of credit from being expressed not as a single rate but as a range referring to a minimum and a maximum rate.
It should be noted that the indication of the annual percentage of the total amount of credit in the form of a range of two figures is not consistent with the wording of several provisions of Directive 2008/48, in particular Articles 3 and 19, nor with the general scheme of that directive. It follows from those provisions that the annual percentage of the total amount of credit must be expressed as a percentage, by reference to a precise figure.

Moreover, according to the Article 3(i) of Directive 2008/48, which defines the annual percentage of the total amount of credit as ‘the total cost of credit to the consumer, expressed as an annual percentage of the total amount of credit’, requires a precise percentage to be fixed.
It is apparent from Article 19(1) of Directive 2008/48, read in conjunction with Part I of Annex I to that directive, that the annual percentage of the total amount of credit is calculated in accordance with the mathematical formula set out in that annex and should reflect, to one decimal place, all existing or future commitments agreed by the creditor and the consumer. In addition, the second subparagraph of Article 19(5) states that the annual percentage of the total amount of credit must be calculated in a uniform manner.

In its judgment the European Court has considered that in case of annual percentage of the total amount of credit does not have a precise percentage the consumers’ right to information is broken. Considered from that perspective, the obligation to provide information set out in Article 10(2) of Directive 2008/48, under which the credit agreement is to specify in a clear and concise manner, the annual percentage of the total amount of credit, contributes to the attainment of the objective pursued by that directive.

The Court has pointed out that, for a consumer, the total cost of credit, presented in the form of an annual percentage of the total amount of credit calculated according to a single mathematical formula, is of critical importance. That rate enables the consumer to assess, from a financial point of view, the extent of the commitment associated with the conclusion of the credit agreement. It should be noted that, if it were permissible to provide in a credit agreement that the attainment can be expressed by reference not to a single rate but to a range referring to a minimum and a maximum rate, the criterion of clarity and conciseness laid down in Article 10(2) of Directive 2008/48 would not be met. That criterion is essential for the consumer to be able, as stated in recital 31 of that directive, to know his rights and obligations under the credit agreement. The use of such a range may not only make it more difficult to assess the total cost of credit but may also mislead the consumer as to the actual extent of his commitment.

Therefore, the conclusion of the court was that Article 10(2)(g) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, as amended by Commission Directive 2011/90/EU of 14 November 2011, must be interpreted as precluding, in a consumer credit agreement, the annual percentage rate of charge from being expressed not as a single rate but as a range referring to a minimum and a maximum rate.

Published by

Nicholas S. Hammond (Hammond-Partnership)

Brazil’s Mattos Filho Eyes Growth in Age of COVID-19

More than a decade ago, one of Brazil’s leading law firms sought advice from Am Law 100 firms on how to establish a more collegial internal environment.

The eat-what-you-kill compensation system that had helped Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados grow into a top-flight firm for tax, corporate and capital markets had spurred infighting and created silos. Those divisions made it difficult to recruit and promote partners to expand in a fiercely competitive market that’s highly coveted by global firms.

After conversations with leaders at Cleary Gottlieb Steen & Hamilton; Skadden, Arps, Slate, Meagher & Flom; and Simpson Thacher & Bartlett in New York—and at Spanish firms like Uría Menéndez and Garrigues—Mattos Filho opted for a modified lockstep system that has allowed the firm to more than triple its partner count, to 108 from 30, and quadruple revenue.

“Today the firm is more important than any one of us,” said founding partner Roberto Quiroga, who is 58.

Mattos Filho has 650 lawyers spread across five offices in Brazil, as well as offices in New York and London, making it one of Latin America’s biggest firms by head count. Ten years ago the firm had just over 300 lawyers.

The full-service firm ranked second in Latin America by number of mergers and acquisitions deals worked and fourth by value during the first half of 2020, with 16 deals announced worth $1.7 billion, according to data from Mergermarket.

The mere size of Brazil helps firms there consistently rank at the top of Latin American league tables. Brazil is Latin America’s largest economy, with a population of 210 million people and geographic span nearly as big as the continental U.S.

COVID-19 brings work

Brazilian capital markets activity has come roaring back after an initial drought caused by precautions over COVID-19, as record low-interest rates prompt domestic investors to seek alternatives to paltry fixed-income returns.

The first wave of transactions consisted of follow-on offerings for companies seeking rescue capital during quarantine. The success of those sales inspired others to resuscitate plans for initial public offerings. At the same time, a weak local currency has renewed interest in acquisitions in the country.

Domestic firms like Mattos Filho are in a prime position to benefit from the boom: Bar rules in Brazil prevent global firms from providing local law services in the country, and also frown on formal tie-ups between Brazilian and international firms.

Roberto QuirogaRoberto Quiroga

Quiroga said his firm is on track to handle around 80 M&A transactions this year—which is typical—while working on 40 initial public offerings.

After an initial freeze on hirings in March, Mattos Filho recently added positions in capital markets, M&A and litigation to manage the increase in business. The firm hasn’t cut pay or laid off employees during the emergency, though it did tap into a government program to cover part of its payroll for furloughed support positions such as waiters and receptionists.

The Mattos Filho team continues to work from home as COVID-19 claims evermore lives in the country. A top consideration for an eventual return to offices will be schools; a majority of the firm’s lawyers are women and many of those women have school-age children.

Like many service providers around the world, Mattos Filho has noticed an increase in productivity while staff work from home—leading to reflections about the longer-term needs for office infrastructure. But the firm pushed forward in July with the opening of a regional office in the city of Campinas on the belief that face-to-face work will dominate in the long run.

“We need a strong firm to compete if one day the market opens,” said Quiroga.

Other priorities going forward, Quiroga said, include building out Mattos Filho’s environmental and tax practices, with parallel efforts to recruit more Black lawyers. Though Black people account for more than half the population in Brazil, they are severely underrepresented both in law schools and in the legal profession.

UK-Listed Law Firm Launches in Middle East

U.K.-listed law firm Keystone Law has obtained approval to establish a new office in Abu Dhabi, UAE, the firm has announced.

The ADGM, the UAE capital’s international financial centre, has granted approval to the firm to establish its new office. It would be the AIM-listed firm’s first foray into the region.

The firm said in a statement that a second office in the Emirate of Dubai is “likely to follow due to strong interest from lawyers in the region who are looking to join the firm.”

Waseem Khokhar, former regional managing partner for PwC Legal Middle East, and DWF Middle East, will head up the office. Previously also a partner with DLA Piper in London, he has over 25 years’ post-qualification experience and is also a registered legal consultant with the Government of Dubai Legal Affairs Department.

“The Middle East has a vibrant and diverse legal market, which is now prime for Keystone’s unique model offering independence and flexibility to experienced lawyers,” said Khokhar. “We are currently in advanced discussions to recruit a number of excellent international lawyers to the firm.”

Law firms are joining the throng to set up business at the Abu Dhabi Global Market (ADGM), which has stolen a march on regional financial technology (FinTech) hub rivals to lead the field in the Gulf Cooperation Council, and has vowed to launch virtual asset exchanges before the end of the year.

Founded in 2002 by current CEO, James Knight, AIM-listed Keystone Law claims its ‘plug and play’ platform model disrupts “traditional law firms operating within the legal services mid-market, [permitting] rapid scalability, enabling the Group to increase the number of revenue-generating lawyers more quickly than the traditional model.”

Keystone saw revenues rise 16% in the year ended January 31, after reporting first-half revenues up 15%. It decided to cancel dividend payouts in March due to the onset of the COVID-19 pandemic.

A full-service commercial law firm with a head office in London and around 350 lawyers in the UK, Keystone has an annual turnover of over £43 million, and is the U.K.’s 77th largest firm, it said in a statement.

Keystone launched operations in Australia in the name of Keypoint Law in 2013, which now has 51 lawyers with offices in Melbourne and Sydney.

Over 90 financial services providers, many with a fintech focus, are now licensed by ADGM’s oversight body, the Financial Services Regulatory Authority (FSRA). The FSRA launched its framework to regulate spot crypto-asset activities, such as exchanges, custodians, and other intermediaries, in June 2018.

New Article 82-1 of the French Code de procédure civile

Article 82-1 of the French Code de procédure civil and challenge of the competence of the new judicial tribunal (tribunal judiciaire)

Decree n°2019-1333 dated 11 December 2019 (Article 2) has this year introduced a new Article 82-1 in the French Code de procédure civile, which is said to simplify incompetence exceptions (heading of the Section 2 of the said decree : the simplification of incompetence exceptions).

This new Article 82-1 came into force on 1 January 2020 and establishes a new derogatory scheme creating a possibility to challenge the competence of the judicial tribunal. The judicial tribunal was recently created with the merger of the TGI (Tribunal de Grande Instance) and the TI (Tribunal d’Instance), such jurisdictions dealing with civil matters. Due to the coronavirus Covid-19 sanitary crisis, legal practitioners did not really have the time to test this new regime.

As a general rule (Article 74 of the French Code de procédure civile), an incompetence exception has to be raised in limine litis, that is to say, at the first hearing, before any discussions on the ground of the case, and by way of principle, before the same judge ruling on the case. On the contrary, and by way of derogation, the new scheme sets up a possibility to raise an incompetence exception, before the first hearing, either the parties or the judge raising it. If trigged, the parties or their lawyers are informed right away by any means giving fixed date (date certaine). In this perspective, the file is transmitted to the registry (greffe) of the judicial tribunal, which in turn, transfers the case to a designated judge. The competence of this newly appointed judge may also be challenged, by him or the parties, during a period of 3 months, by the transfer of the case to the President of the judicial tribunal. According to the new regulation, the President of the judicial tribunal has to transfer the case to a new appointed judge, and such a decision cannot be challenged. However, the competence of this new appointed juge may be challenged before this new judge by the parties, and the decision ruling on the competence may be appealled within a period of 15 days, as of the date of the notification of the decision.

The President of the judicial tribunal appears to be the keystone of the scheme, which is in line with the role usually attributed to him, as already in charge for example of summary proceedings (e.g. référé). The fixed date (date certaine) and the 3 months timeframe appear to be crucial, and purport to avoid endless discussions on the competence.

However, and surprisingly, this new scheme creates a very sophisiticated legal architecture, not to mention the potential right to call the case before the French Cour de cassation (Supreme Court). In such a context, these new rules may unfortunately be used to artificially challenge a procedure and lenghten it. An author has recently described this mecanism as a potential Trojan Horse, allowing dilatory procedures (Katia Bennadji, Dalloz actualité, 22 July 2020, « L’article 82-1 du Code de procédure civile : cheval de Troie au service de manœuvres dilatoires »). This remains true to a certain extent, as this new Article 82-1 has been introduced in a context where, on the contrary, a lot of other procedural rules are aimed at streamlining the procedure e.g. concentration of the legal means (concentration des moyens), estoppel or prohibition of dilatory procedures.

In a constant movement, the French Cour de cassation draws the outlines of the concentration of the legal means principle. The French Cour de cassation (C. cass. civ. 2, 11 April 2019, n°17-31785), recently stated that the plaintiff, before any rulling on the case, has to expose all the legal means considered as the ground for the claim. This means that, in a same instance, an overruled legal claim cannot be raised again in connection with another ground based on the same object, as the one on which the tribunal has already definitly stated. According to this case law, the rule of the concentration of the legal means, uses the same underpined concept as the fin de non-recevoir (i.e. res judicata pro veritate habetur), but is not an exception procedure as rather deals with the ground of the case. It remains to be seen however how this case law and all the case law hereof, will be used by legal practioners to limit the import of this new Article 82-1. In this perspective, it is reasonnable to think that they may wish to use the concentration of the legal means principle, also in connection with procedure exceptions, such as incompetence.

In addition, the estoppel theorie, albeit originally English law concept, is now part of the French legal system. In a considerably important decison, the French Cour de cassation, recognised and introduced into French law, this anglo-saxon concept (C. cass. Ass. Plen., 27 February 2009 (n°07-19.841)) and considers it as a fin de non-recevoir (i.e. a legal mean aiming at having declared the claim of the other party as not recevable). In this respect, the French Cour de cassation has stated that actions of the same nature based on the same conventions, opposing the same parties may give rise to a sanction, provided that a party kept contradicting itself, at the expenses of others. More specifically, the French Cour de cassation, Civ. 2, dated 15 March 2018 (n°17-21.991) reitereted this position, ruling that « (…) the principle according to which no one may contradict itself at the expenses of others, sanctions the procedural attitude consisting, for a party, during a same instance, to adopt contrary or incompatible positions leading the adversary in error as to its intentions ». Thus, it is reasonnable to think that legal practioners will use, inter alia, the estoppel theory to limit the possibility to use incompetence exceptions. In addition, even if the contradiction may occur in the same instance, it cannot be excluded that a judge may wish to streamline the procedure and prevent a party from utilising incompetence exceptions several times, in a same context.

A judge would also have the possibility to use article 32-1 of the French Code de procédure civile, which states that a person acting in justice in a dilatory manner may be convicted to a civil fine up to 3.000 euros, without prejudice of dammages that would be claimed. In that event, the amount related to the civil fine is paid to the French Trésor Public.

To remain in the real trend of the procedure regulation, i.e. constant equilibrium between defense rights and efficiency of the legal system, judges and legal practioners are in the position to put forward a strict construction of Article 82-1 of the French Code de procédure civile. Constructions rules are clear in this respect : exceptions or derogations have to be interpreted strictly, and the scheme created is created by way of exception. This means that each time a lawyer would invoke a competence exception on the basis of this new Article 82-1, the judge would have to conduct a teleological construction, in the view of maintining a sufficient level of efficiency of the procedure, especially in a context where (i) ECHR (European Convention of Human Rights) already imposes an effective recourse in every steps of the procedure and (ii) numerous litigations deal with international matters, allowing the parties to raise incompetence exceptions, also on the ground of judicial international private law.

Up to date as of 22 July 2020.

 

HONG KONG HK

A pathway to citizenship for millions in Hong Kong

The prime minister, Boris Johnson, has announced the move in response to new national security legislation imposed on the territory by China. Speaking during PMQs today, Boris said the legislation “constitutes a clear and serious breach of the Sino-British joint declaration”.

It had been made clear by the UK Government that if China continued down this path the UK would introduce a new route for those with British national overseas status to enter the UK granting them limited leave to remain with the ability to live and work in the UK and thereafter to apply for citizenship.

The UK handed Hong Kong back to China in 1997. Anyone born in the territory before then is eligible for a British National (Overseas) passport – or BNO.The “bespoke” new arrangement is to be implemented in the coming months and would grant BNOs five years’ limited leave to remain in the UK.

They would then be eligible to apply for settled status and would be able to apply for citizenship after 12 months with that status.There would be no quotas on numbers. As of February, there were nearly 350,000 BNO passport holders, while the Government estimates there are around 2.9 million BNOs living in Hong Kong.

If you are unsure of the most preferable option for you and your individual circumstances contact Bermeet.chhokar@herrington-carmichael.com to arrange an informal chat.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.