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. 

New Supreme Court Rulings on Immigration

Employers that hire foreign workers may have a hard time filling certain job slots soon, if recent action by the Trump Administration survives legal scrutiny. The affected foreign workers are those who have been able to come to the United States using several categories of work visas. In late June, President Trump signed an executive order suspending applications for:

  • H-1B visas for professionals,
  • H-2G for temporary, non-agricultural employees,
  • L-1A and L-1B visas for intracompany transfers, and
  • Certain J-1 exchange visitors (including interns).

The suspension affects foreign nationals outside the United States who are in the process of seeking those visas or were planning to start the process. It’s scheduled to end on Dec. 31 but could be extended. Foreign citizens overseas who had already obtained those visas prior to the executive order that took effect June 24 aren’t impacted (whether they’re still abroad or currently in the United States).

Visa Suspension Exemptions

Exceptions will be made for foreign nationals who qualify for an as-yet undefined “national interest” exemption. The executive order did establish several exemption categories, however. Those include people who are:

  • Necessary to facilitate the immediate and continued economic recovery of the United States,
  • Involved in the provision of medical care to hospitalized victims of COVID-19,
  • Involved with the provision of COVID-19 research at U.S. facilities, or
  • Critical to the defense, law enforcement, diplomacy or national security of the United States.

The goal of the order is to expand employment opportunities for U.S. citizens. It’s anticipated that employers seeking certain kinds of technical workers may circumvent the order by retaining needed talent via remote working arrangements.

DACA Basics

Meanwhile, a U.S. Supreme Court ruling involving a program of deferred action for childhood arrivals (DACA) recipients, also known as “dreamers,” gave at least a temporary reprieve to those individuals. These are primarily children of undocumented immigrants from Mexico who were under age 16 when they arrived in the United States and have lived here since prior to June 15, 2007. DACA status protects nearly 650,000 people with an average age of 26, according to the U.S. Citizenship and Immigration Service.

Under the DACA program, established in 2012, covered individuals need to reapply for permission to remain in the U.S. every two years. When enacted, the policy’s goal was to buy time for these individuals pending a permanent resolution by Congress of how their immigration status should be handled. In 2017, President Trump suspended the DACA program, and that decision had been challenged in federal courts.

The Supreme Court ruled that when it sought to end the DACA program, the Trump Administration failed to meet the requirements of the Administrative Procedures Act, a law that requires detailed justification for such actions. In principle, the Trump Administration could renew its effort to end the DACA program by fleshing out the documentation of its rationale for ending the program. However, it’s not expected that the matter could be resolved prior to the presidential election in November.

What the DACA Ruling Could Mean for You

The upshot for employers of DACA status recipients is that those employees are less likely to face deportation in the short run. When they join a new employer, DACA recipients have the same obligation to complete an I-9 employment eligibility verification as everyone else.

That means, assuming the employee provides valid documentation, employers will know of an employee’s DACA status and keep tabs on when the DACA recipient’s protected status needs to be renewed. But given the possibility of a restoration of the decision to end the DACA program down the road, some employers might encourage DACA recipients to seek reauthorization of their status well in advance of the expiration of their current authorization period.

Prior to the Supreme Court’s ruling, if an employee’s authorization to live in the U.S. has expired, employment must be terminated. However, employers must take care to avoid treating suspected DACA status employees differently than other employees by requiring them to furnish documents not on the I-9 form’s “acceptable list.”

Gay, Transgender Discrimination Ruling

The Supreme Court’s high-profile ruling in Bostock v. Clayton County involving workplace protections from employment discrimination against gay and transgender employees might have broader implications than the specifics of the cases underlying the ruling. Three cases were folded into the opinion; each involved the termination of either a gay or transgender employee.

The Court, by a 6-3 vote, held that the firings violated Title VII of the Civil Rights Act’s ban on employment discrimination “because … of sex” language. Originally that provision of the law was interpreted only as banning discrimination “against women because they are women and men because they are men.” Over time the courts attached a broader meaning to that key phrase, while it also ruled in opposition of discrimination against homosexuals in other contexts, including marriage.

The Court explained its logic this way. Consider the case of two employees. One is a man attracted to men, and the second employee is a woman attracted to men. Both employees are attracted to men. However, the first employee is fired for no reason other than his preference for men, but the second employee who exhibits the same behavior is not. That constitutes discrimination “because of sex,” the Court concluded.

For employers in the 23 states and hundreds of cities and counties that already ban employment discrimination against gay and transgender people, the Bostock v. Clayton County ruling may be a non-event. Nevertheless, employers in all states may want to review their policies, employee handbooks and manager training programs to ensure consistency with this opinion. Also, it’s possible that the ruling will ultimately have spillover impact in other employment-related areas not covered by Title VII, including employee benefits.

Final Thoughts

Sooner or later, most employers will encounter questions about various types of discrimination. Some areas are clear and some are evolving. Don’t take chances. If you’re not certain, consult your employment attorney for details and guidance.

The Pro’s And Con’s Of Private Equity

In recent years private equity has become a popular way for many companies to fulfill their plans for growth. In this article, the Corporate team of Greenaway Scott outline what private equity is and its advantages and disadvantages.

Private equity consists of funds and investments directed to private companies by an investor, who in return will receive part ownership or an interest in the company. When offering investments to potential new shareholders, companies will be able to raise significant amounts of capital and this option can be used to replace bank loans.

The main reason behind an equity investment for shareholders is the expectation of a return from the investment. When funds are received by the company, managers and directors of the business will aim, through growth plans, to provide a return to the shareholders. The capital funds flowing from the investment can assist companies to buy new technologies to enhance the business, plan an acquisition of a competitor, strengthen their balance sheet etc.

When looking at the possibility of obtaining private equity for a business, various factors should be considered by business owners.

An important advantage is the ability to choose the investors that are going to be part of the business. This is an important consideration for the business owners as they will want to ensure that the new shareholders have the same values and objectives for the company, as well as sharing their knowledge and their assistance. Once a potential investor becomes a shareholder, all the rights attached to the specific position will come into play and decision making power will influence the decisions of the company in general.

Another important factor is flexibility. Business owners will have the ability to control the investment and the return of ownership to the potential new shareholder. This will be linked to the potential return to the investor in a longer period of time, giving the company and the managers a greater opportunity to use the investment in the company.

It is really important for business owners to ensure that when an investment is requested, the capital is raised quickly, unlike with a public company. Investment rounds can be completed quickly and the money can be transferred to the company in a reasonable amount of time.

At the same time, when considering new investments into the business, business owners and managers should consider certain disadvantages.

One disadvantage is the dilution in the company. When a new investor is introduced, other shareholders will need to accept the dilution of their shareholding and the control of the decision-making procedure of the business. This reduction of control from the shareholders is linked as well to the loss of control from the management. The release of control over the company to another investor can cause loss of basic elements of your business, for example targets and strategy, as well as the choice of the management of the company.

Another important consideration relates to the eligibility requested by the company for specific investors. When capital investments are made into a company, the investors will look into the potential of the business, the contracts and work planned for the future, the financial position and the experience that they can bring to the business, but most importantly a lucrative return and a potential exit in the future.

One last consideration is related to the limited market that will be available and the limited number of potential investors in comparison to the public exchange. Investors might not be interested in a small return from a private company, which means that the investors might not provide a big investment.

As in every business venture, there are pros and cons that will need to be evaluated by the parties. The factors above will need to be taken into consideration to ensure that the investment is balanced with the presence of a new person in the business.

To speak with the Corporate team for more information, please contact 029 2009 5500 or email admin@greenawayscott.com.

CCWC and Hogan Lovells: Our Shared Vision

As part of our commitment to being a leader in diversity and inclusion, we are proud to announce the beginning of a partnership between Hogan Lovells and Corporate Counsel Women of Color (CCWC).

The nonprofit organization provides a support network to in-house women of color attorneys, promotes career advancement and success at all levels within corporations, and promotes all aspects of global diversity in the legal profession and workplace. We look forward to working with CCWC as part of our shared vision to support the leadership and professional development of women of color in the legal industry.

Please watch the video below to learn more about this partnership.

Amendments to the Share Capital and Debentures Rules

Amendments to the Share Capital and Debentures Rules
On 5th June 2020, the Ministry of Corporate Affairs notified certain amendments to the Companies (Share Capital and Debentures) Rules, 2014 (“Rules”) with respect to issuance of sweat equity shares and debenture redemption reserve (“Notification”).
A. Sweat Equity
Start-up companies were allowed to issue sweat equity shares to their directors or employees at discount or for consideration other than cash, for providing know-how or making available rights in the nature of intellectual property rights or value addition, upto fifty per cent of paid up share capital of the Company for a period upto 5 years from the date of incorporation or registration.

 

Pursuant to the Notification, start-up companies can issue sweat equity shares for 10 years from the date of incorporation or registration instead of 5 years. This move should surely help startups boost the morale of the employees during the slowdown caused by the pandemic Covid-19 crisis.

 

Further, in the said provision, the reference to old definition of a startup company which was issued by the Department of Industrial Policy and Promotion (“DIPP”) vide Notification No. G.S.R. 180(E) dated 17th February, 2016 is substituted with the new definition as issued vide Notification No. G.S.R. 127(E) dated 19th February, 2019. This is a welcome change after the DIPP broadened the definition of a startup in February 2019. It recognized an entity as a startup if it had been incorporated for less than 10 years and did not have a turnover of more than Rs. 100 crores for the financial year from the earlier turnover not exceeding Rs. 25 crores.

B.  Debenture Redemption Reserve
The Notification further provides that all listed companies in context of their issuance of privately placed debentures will now not be required to invest or deposit a sum of 15% of the amount of its debentures maturing during the year, ending on the 31st day of March of the next year on or before 30th day of April in each year.

 

The amendment to the Rules will free up vital cash resources of listed companies which would have been otherwise blocked for the requirement of such mandatory investment.

Disclaimer
This news flash has been written for the general interest of our clients and professional colleagues and is subject to change. This news flash is not to be construed as any form of solicitation. It is not intended to be exhaustive or a substitute for legal advice. We cannot assume legal liability for any errors or omissions. Specific advice must be sought before taking any action pursuant to this newsflash.

 

For further clarification and details on the above, you may write to Mr. Vaishakh Kapadia (Partner) at vkapadia@almtlegal.com, Mr. Ankit Parekh (Senior Associate) at aparekh@almtlegal.com, and Mr. Vinit Shah (Associate) at vshah@almtlegal.com.

Corporation Tax: Setting Up In The UK

The responsibility for correctly calculating the UK corporation tax liability falls on business directors, irrespective of whether they are based in the UK or overseas. 

Corporation tax is an amount that limited companies must pay to HMRC on all taxable trading profits. It could be referred to as income tax. It is also known as a CT600. It is set at a flat rate of 19% for most UK company’s. All limited companies and non-profit organisations that are trading in the UK must pay corporation tax on all forms of taxable income. 

“The tax credit system in the UK is far superior to the Australian system and is much more dare I say understanding and/or forgiving. For example, we recently reopened a client’s 2018 corporate tax return. They had commissioned a third party to produce an R&D report and that third party had charged them a percentage of their refund. We found a few errors in it so we revised up their claim and £25,000 is currently being returned to them. £25,000 to start any sort of business off in the UK is obviously phenomenal, that’s someone’s salary but the client was very happy. We charged her an hourly rate for that and didn’t charge a percentage. 

A UK company tax return is typically made up of a number of items: 

  • Form CT600 which must be signed by an authorised signatory; director, company secretary or authorised tax representative 
  • The Company accounts, known as statutory accounts. These are the accounts the company must prepare for its members under the Companies Act, including directors’ reports and, if applicable, auditor’s reports 
  • Separate computations and/or calculations showing how figures on the CT600 have produced 
  • Supplementary pages to the CT600 where required. 

Companies can also benefit from the Enterprise Investment Scheme (EIS) and/or  Seed Enterprise Investment Scheme (SEIS), which aims to boost investment in smallstart-upsby offering income tax relief on the shares bought through crowdfunding websites.If companies have this certificate then you can promote this on certain crowdfunding websites which makes you more attractive for local investment in the UK. Paul mentions, “there are websites such as Crowd Key, for example, where you take a look at the website, it’ll have different companies it’s funding, how long the funding run is going for and it will specify whether they are SEIS or EIS compliant. 

We can help to minimise corporate tax exposure and relieve the administrative burden of compliance with the current tax legislation. Please do  get in touch to discuss in more detail.

WFaria Advogados boots its M&A Practice

WFaria Advogados has announced Maria Beatriz Bueno Kowalewski as its new M&A and Corporate partner. With Bia Kowalewski, WFaria extends and improves its corporate governance, M&A, risk analysis and proposals for mitigation structures services

– Your effective knowledge about corporate and regulatory issues are very importante at this moment that many clients must be define strategic decisions about your future after Covid-19 economic debacle.

Bia Kowalewski stands outs for her track record on assisting clients through complex transactions, such as acquisition by Brookfield of Odebrecht Ambiental assets (2017). She she worked as a foreign associate for first-tier international law firms in Berlin and Brussels, between 2003 and 2007,before joiningTozzini Freire as M&A partner also responsible for the firm German Desk. She is also an active member of the Brazilian Institute for Corporate Governance (IBGC).

Bia Kowalewski is graduate in USP and has Master Degreee about German Law,  European Union Law and  M.LL.P. legal practice certification, Jur. Fakultät der Humboldt-Universität zu Berlin, Berlim, 2006, with magna qualification com cum laudae.

About WFaria Advogados

For companies, law firms, and CPAs whose clients require legal support in Brazil, WFaria is the one-stop shop that provides high-quality legal, tax, and compliance services at fair fees.

With offices in Brazil and in the United States, we are a superior service provider composed by senior experts with international vision and experience that allow us to assist clients doing business in Brazil, from market entrants to Fortune 500 companies.

“Strong position in the Brazilian compliance and fraud investigation scenario, having played a key role at major cases such as the Eletrobras investigation, which led to the relisting of the company’s stock at NYSE and the avoidance of monitoring by US Department of Justice.

WFaria has supported over 100 international companies in their investment in Brazil through M&A deals and greenfield investment.

Our Tax Recovery department has worked with hundreds of companies and recovered millions of dollars in taxes.

The Litigation Team has deep expertise in supporting our clients in tax, civil, corporate, and labor litigation and arbitration.”

Piercing of Corporate Veil

he right of an entrepreneur to allocate funds for the incorporation and operation of a legal entity pursuing commercial activity is founded and, when exercised, produces legal effects; the legal entity which is formed, is independent from the founder and its actions count for it.

The above is not applicable when the legal personality of a company is (ab)used to cover the activity of its founder. In such case, the controlling person is considered to be jointly liable for the obligations of the legal entity.

Insufficient funding, the coincidence of corporate and personal property are indications of abuse of the legal entity by the controlling person.
Piraeus One Membered Court of Appeal Judgment no 462/2018, Judge: M. Papadogrigorakou, Attorneys at law: P. Mountzouronis, G. Darra, Maritime Law Review vol. 46, p. 241.

NOTE: In the case under consideration, one of two individuals alleged to abuse the corporate veil to cover their own activity was found as having no relationship with the company. Test for the other individual to abuse was the coincidence of her property with the corporate assets.

The legal column was written by Manolis Eglezos, Attorney at law, Manolis Eglezos & Associates Law Firm, Attorneys at Law and Consultants