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Ashurst LLP Current Trends in Australian Disputes

We recap the key commercial cases and regulatory developments of 2022 and identify some areas to watch in 2023.

Data breaches lead to regulatory focus and increased penalties

Cybersecurity developed as a key litigation risk in 2022.

In May, the Federal Court declared that RI Advice Group had breached its duties under the Corporations Act as a financial services licensee, following nine cybersecurity incidents between 2014 and 2020. The company had lacked adequate documentation and controls to manage cybersecurity risks.

ASIC warned that failure to address cybersecurity risk or comply with disclosure and reporting requirements may be a breach of director’s duties.

The second half of 2022 saw several high profile data breaches involving millions of customers, prompting investigations by regulators.

In response, the Australian Government passed new privacy legislation, increasing penalties for privacy breaches and giving new powers to the Office of the Information Commissioner. Penalties went from a maximum of A$2.2 million to the greater of A$50 million; three times the benefit of the contravention; or, if the benefit can’t be determined, 30 per cent of the company’s domestic turnover.

2. Climate change and greenwashing litigation escalate

Claims based on the spectre of climate change remained prominent in 2022.

In Sharma v Minister for the Environment the Full Federal Court held that the Minister did not owe a duty to avoid causing personal injury to Australian children when deciding whether to approve plans to extend an open-cut coal mine in New South Wales. In this case the climate change implications of the approval were ultimately a policy issue for government. Subsequently, Australia legislated an economy wide emissions reduction target of 43% below 2005 levels by 2030 and net zero by 2050.

Meanwhile, investor and regulatory pressure kept environmental, social responsibility and corporate governance performance under the spotlight.

Greenwashing has become an enforcement priority for regulators, with ASIC issuing several infringement notices and commencing enforcement proceedings. At the same time, continued progress towards global standards for significant ESG-related risks highlights likely continuing disclosure risks for companies and directors.

3. National Anti-Corruption Commission to have broad investigatory powers

In 2022, the Australian Parliament passed the National Anti-Corruption Commission Act 2022 and related legislation to establish a federal anti-corruption authority (the NACC) with broad powers to investigate corruption involving public officials, including conduct that occurred before the NACC’s establishment.  The government expects the Commission to begin operations in mid-2023.

The NACC will serve as an independent agency with power to investigate and report on “serious and systemic corruption” across the Commonwealth public sector.  The breadth of the NACC’s investigatory powers reinforces the importance of ensuring, when dealing with Commonwealth officials, that you avoid conduct that could be construed as adversely affecting the honest and impartial exercise of a public official’s power or performance of their duties.  Commonwealth officials should also be conscious that their conduct could be investigated and that there are mandatory reporting requirements under the NACC legislation that may interact with the existing Public Interest Disclosure Act requirements.

4. Supreme Court of Victoria paves the way for contingency fees in class actions

2020 legislation empowered the Supreme Court of Victoria to make “Group Costs Orders” (contingency fees) in class actions.  Under these orders, the plaintiffs’ legal costs can be calculated as a percentage of any award or settlement.  The Victorian Supreme Court approved a Group Costs Order for the first time in Allen v G8 Education Ltd, permitting the plaintiffs’ lawyers to charge a contingency fee capped at 27.5% of any gross settlement or award.  Similar contingency fee type orders have since been approved in a number of other cases, such as for 40% in the Arrium class action and 24.5% in Beach Energy.

These developments make the Supreme Court of Victoria an attractive jurisdiction for class action plaintiffs lawyers, as contingency fees are prohibited in other Australian jurisdictions.  We have now seen cases brought in Victoria where it would not otherwise have been the obvious place to bring the proceedings.

5. Inflationary environment puts a spotlight on the risk of cost escalation and construction disputes

Managing the risk of cost escalation in construction projects has become a focus in the last 12 months following unprecedent rises in construction costs.  Traditionally parties have managed cost escalation with strategies such as purchasing materials in advance, locking in a fixed price with suppliers or including a contingency allowance in the project budget to cover unforeseen events or risks.

Contractors are becoming less comfortable with traditional risk management strategies in the current climate and are seeking to include cost escalation clauses which provide a more certain mechanism to manage cost escalation. These clauses can protect a contractor’s interests by providing that the price of works will be adjusted to account for an increase in material or labour costs.  But they require careful drafting, including attention to the events that trigger the cost escalation mechanism and an appropriate cap on any increase to the contract price.  Parties should also consider including an appropriate alternative dispute resolution clause as the economic climate inevitably puts pressure on construction projects and elevates the risk of disputes.

6. High Court to consider the recognition and enforcement of investment arbitration awards in Australia

The High Court is considering whether the Kingdom of Spain can rely on state immunity to avoid the recognition and enforcement of an arbitral award under the ICSID Convention (the Convention on the Settlement of Investment Disputes between States and Nationals of Other States).  As the first contested enforcement of an investment arbitration award in Australia, the decision will provide important guidance on this emerging area of the law.

The dispute before the High Court arose after Spain reduced the level of subsidies paid to renewable energy generators, including the respondents in the High Court proceedings.  The respondents had obtained awards against Spain under the ICSID Convention, which they sought to enforce in the Federal Court of Australia.  Spain has asserted it is immune from suit under the Foreign States Immunities Act 1985 (Cth).  The High Court will decide whether Spain’s accession to the ICSID Convention constituted a submission to the jurisdiction of the Federal Court, so as to extinguish foreign state immunity. The High Court heard the matter on 10 November.

7. Penalties legislated for unfair contract terms

In October Parliament passed legislation which drastically increases the maximum penalties under the Competition and Consumer Act and makes significant changes to the law on unfair contract terms.  The changes come into effect from October 2023.

The unfair contract terms amendments introduce new civil penalties relating to entering into a standard form consumer or small business contract which contains an unfair term, and applying or relying on an unfair contract term.  Before these amendments, unfair terms could be made void, but there was no penalty.

The amendments also expand the scope of “small business” contracts to which the regime will apply.

Regulators continue to take action in this area and will likely step up their efforts once the new civil penalties come into effect. Notably, the Federal Court made orders in August preventing Fujifilm from relying on unfair terms in its standard contracts with small businesses. Fujifilm had used templates to enter into 34,000 contracts for the supply of printers and related software on a lease basis, many with small businesses. The contracts contained unfair terms relating to automatic renewal, limitation of liability, termination rights and payments, payment terms and variation rights.

8. Financial services systems scrutinised for unconscionable and misleading conduct

For financial services entities, 2022 brought further clarity to the law of unconscionable conduct and misleading or deceptive conduct.

The High Court decision in Stubbings v Jams 2 demonstrates that systems, practices or procedures are likely to be unconscionable where they are found to have been orchestrated to avoid knowledge or an appreciation of a party’s financial or personal circumstances, vulnerabilities or disadvantages that would create unconscionable conduct risk. A certificate of independent legal or financial advice will not necessarily “immunise” an entity from a finding of unconscionable conduct where there is otherwise evidence of exploitation of a special disadvantage.

Separately, in two recent enforcement proceedings by ASIC against banks involving charging fees without contractual entitlement, the court held that statements of account recording transaction fees did not impliedly represent that the fees were payable. Further, a contractual term which provides for a fee waiver did not impliedly represent that the bank had adequate systems and processes in place to ensure the fee waivers would be applied in every case.  The “efficiently, honestly and fairly” obligation similarly did not require banks to achieve a standard of perfection in the delivery of services to customers.  We expect to see further litigation around the extent of these obligations in 2023.

9. A public authority’s duty of care in negligence turns on the statutory framework

In a decision arising from the 2014 Parkerville bushfire, the High Court held that a statutory authority owed a duty of care to avoid or minimise the risk of harm to persons and their properties in the vicinity of its electricity distribution system: Electricity Networks Corporation t/as Western Power v Herridge Parties.

The bushfire started when a pole supporting an electrical cable fell to the ground, igniting dry vegetation. The fire caused damage to 392 hectares and the loss of 57 homes.

The Court found that when determining the existence and content of such a duty, the starting point should be a consideration of the terms, scope and purpose of the statutory framework, and the statutory functions and powers which the authority in fact exercised. The Court rejected submissions that the authority lacked sufficient control, and that a duty was inconsistent with the statutory framework.

10. High Court says terms in informal contracts are inferred

The High Court considered the test for identifying terms in informal contracts in Realestate.com.au Pty Ltd v Hardingham.

A photographer sued the operators of real estate platforms for infringing his copyright. The photographer had orally agreed with real estate agents to create the images, without discussing copyright. The platform operators invariably required agents to give an irrevocable, perpetual licence for images. Was the licence limited to the particular marketing campaigns, or ongoing?

The Court held that there was a term entitling the agents to sub-license the use of the images indefinitely. According to the majority, it was not necessary to imply a term, as the term could be inferred (or would be the conclusion of the reasonable observer) from the silence of the parties in light of the background circumstances. The Court clarified that informal contract terms should be identified objectively, not by reference to the parties’ inferred actual intentions.

Editors: Jeremy Chenoweth, Practice Group Head, AsiaPac, Dispute Resolution; Andrew Westcott, Expertise Counsel; and Camilla Wayland, Head of Expertise, AsiaPac.

Contributors: Ian Bolster, Partner; Mark Bradley, Partner;  Luke Carbon, Senior Associate; James Clarke, Partner; Adam Firth, Partner; Thomas Gaffney, Senior Associate; Rani John, Partner;  Imogen Loxton, Senior Associate; John Pavlakis, Partner; Robert Todd, Partner.

 

Clifford Chance appoints Sharis Arnold Pozen as new Regional Managing Partner for the Americas

Washington, DC: Leading International law firm Clifford Chance has appointed Sharis Arnold Pozen as the new Regional Managing Partner for the Americas, a key strategic area of focus for the firm.

Pozen is co-chair of the firm’s Global Antitrust Group. She joined the firm in 2019 having held senior positions at General Electric, the US Department of Justice and the US Federal Trade Commission. Sharis holds numerous leadership positions in the firm and was recently inducted into the American Bar Association’s Women. Connected Hall of Fame-inism.The appointment will be effective May 1, 2023.Pozen says, “I am incredibly proud and humbled to be appointed to lead our Americas region into what is a very bright future.

We are an ambitious team of exceptionally talented lawyers and business professionals, and I am eager for us to work together to continue our strong momentum from Evan’s leadership.”Global Managing Partner Charles Adams comments, “I am proud to announce the appointment of Sharis onto our leadership team. The Americas is a key priority for the firm and the region is awash with opportunities for our clients and people. I have had the privilege of working closely with Sharis in her role as co-chair of the Antitrust practice and her rich leadership experience in government, private practice and in-house on the client side will deliver real value in driving our growth strategy.”I would also like to thank Evan for his exemplary contributions over the last 10 years. Evan has been a guiding light in championing the firm’s strategy in a time of tremendous growth that looks set to continue into the years ahead.”Cohen says, “It has been an honor to lead our Americas team over the past decade.

It is an exciting time for us in the region and Sharis’ energy and experience captures what makes us stand out in the market – I’m confident that Clifford Chance will continue to grow under her leadership.

Introduction to Delisting Framework Under HKEX Rules

The pandemic has significantly impacted the economy, making it increasingly difficult for businesses, particularly listed companies, to thrive under current circumstances. As of 31 July, a total of 26 company listings were cancelled in 2022, pursuant to delisting procedures under the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (listing rules).

This article provides an overview of the delisting framework, including the delisting process, and grounds for suspension of listing, concluding with some practical tips.

DELISTING PROCESS

The current delisting framework under the listing rules came into effect on 1 August 2018. Under rule 6.01 (GEM rules 9.01 and 9.04), the Hong Kong Stock Exchange may at any time suspend or cancel the listing of any securities to protect investors or maintain an orderly market, where an issuer: (1) fails to maintain a sufficient public float; (2) fails to maintain sufficient operations or assets; or (3) is no longer suitable for listing.

Other cases include failure to publish financial results, or inside information due to material irregularities, and disclaimer and adverse audit opinions on financial statements.

The procedure for delisting is set out in rule 6.10 (GEM rule 9.15), which involves the exchange issuing a delisting notice specifying a remedial period. On expiry, the exchange may cancel the listing, or in exceptional circumstances delist the issuer immediately. The prescribed remedial period is 18 months for main board issuers and 12 months for Growth Enterprise Market (GEM) issuers from the date of trading suspension.

GROUNDS FOR SUSPENSION

Failure to maintain a sufficient public float. Where trading is suspended due to insufficient public float, issuers are expected to address the issue within a reasonably short period of time, devising an action plan to restore the required minimum public float with a clear timeframe.

Failure to maintain sufficient operations or assets. A common ground for suspension or cancellation of listing is failure to maintain sufficient operations or assets pursuant to rule 13.24 (GEM rule 17.26), which may be particularly relevant in the current economic environment.

Issuers may fall foul of this requirement under various circumstances – as set out in an exchange guidance letter (GL106-19) – including business deterioration or discontinuation, corporate actions leading to minimal operations, or other circumstances where financial difficulties seriously impair the business.

The exchange may request an issuer to address its concerns on compliance with rule 13.24 (GEM rule 17.26) after assessing its periodic financial results and other disclosures. The issuer must demonstrate to the exchange’s satisfaction that its business has substance, and is viable and sustainable in the longer term.

If the issuer fails to address the concerns within a specified period of time, the exchange will make a decision regarding the non-compliance, subsequent to which the issuer should publish an announcement on the decision, including a statement that trading in its shares will be suspended.

Failure to publish financial results or inside information due to material irregularities. Accounting irregularities or significant weaknesses in internal controls resulting in failure to publish periodic financial results or inside information are also frequent reasons for suspension.

Examples include failure to keep proper books and records, discrepancies between accounting records on transactions and information obtained by the auditors, and lack of information or evidence to substantiate the existence or ownership of material assets.

Such potential irregularities could give rise to serious issues about the accuracy and credibility of the issuer’s disclosures, management integrity, and lack of adequate internal controls, which in turn cast doubt on the issuer’s suitability for continued listing.

Disclaimer and adverse audit opinion on financial statements. Under rule 13.50A (GEM rule 17.49B), trading will normally be suspended if an issuer publishes a preliminary results announcement for a financial year and the auditor has issued – or has indicated it will issue – a disclaimer of opinion or adverse opinion on the issuer’s financial statements.

Until the issuer has provided comfort that a disclaimer or adverse opinion would no longer be required, the suspension will remain in force.

The exchange’s guidance letter (GL95-18) provides examples of how such comfort may be provided, including providing a full financial year audit of the financial statements, or a special engagement of the auditor to perform audit on a single financial statement.

CONCLUSION

Through the new delisting framework, the exchange demonstrates stronger determination in providing certainty on the delisting process, and facilitating close monitoring of the market.

Issuers should take a holistic approach in assessing their operations and conduct regular reviews to identify any potential issues that may affect their suitability for continued listing. It is essential that issuers take timely remedial action to address exchange concerns and resume trading within the specified remedial period.

READ FULL ARTICLE

First published in November issue 2022 of China Business Law Journal.

Note: This material has been prepared for general information purposes only and is not intended to be relied upon as professional advice for any cases. Should you need further information or legal advice, please contact us.

Latham Advises DailyPay in Financing Deals

DailyPay, a leading financial technology company, has announced it has secured US$560 million of capital to fuel growth domestically, expand internationally, and further invest in product innovation. The funding is divided between a revolving credit facility provided by Barclays and Angelo Gordon, and new term loans from SVB Capital and a fund managed by Neuberger Berman.

DailyPay first announced a US$300 million revolving credit facility from Barclays in March 2022. The additional revolving credit facility capacity (US$100 million provided by Barclays and US$60 million from Angelo Gordon) provides DailyPay with more capital to service its ever-growing roster of clients. The up to US$100 million in term loans will be invested to fuel DailyPay’s continued product innovation and to accelerate growth.

Latham & Watkins LLP advised DailyPay in the term loan financing with a deal team led by Bay Area partner Haim Zaltzman and Los Angeles/Bay Area partner Elizabeth Oh, with associates Dan Ovadia and Tyler Davis. Latham also advised DailyPay in the US$460 million securitization transaction with a deal team led by New York partner Loren Finegold and Bay Area Partner Haim Zaltzman, with associate Maeve Chandler. Advice was also provided on tax matters for both financings by New York partner Elena Romanova, with associate Ron Moore.

Kirkland Advises Apex Group on Acquisition of Bank of America Custodial Services (Ireland)

Apex Group Ltd. (“Apex” or “The Group”), a global financial services provider, announces today the planned acquisition of Bank of America Custodial Services (Ireland) Limited (“BACSIL”), the Irish depositary business of Bank of America. Apex Group will acquire BACSIL through its subsidiary European Depositary Bank (“EDB”).

BACSIL is a depositary solution for onshore and offshore funds servicing a multitude of blue-chip clients consisting of UCITS, Alternative Investment Funds and offshore depo-lite fund structures, across a wide range of strategies. The BACSIL business, based in Dublin, provides depositary services to client assets of $71.4bn (as at December 31, 2022).

Apex Group’s existing depositary services delivered by EDB, support a range of regulated fund types, underpinned by top-tier technology and workflow systems. The addition of BACSIL deepens the delivery of Apex Group’s independent depositary services in Ireland, with the Group also offering depositary solutions in Luxembourg, UK, Malta, Sweden, Denmark and the Netherlands through its subsidiary European Depositary Bank (“EDB”) and specialist local entities.

BACSIL’s experienced and high-quality team will join Apex Group in Dublin, ensuring consistency of exceptional service levels for existing and future clients. As part of Apex Group, BACSIL’s clients will benefit from the simplicity and efficiency of a single relationship with a global service partner across the full value chain of their business; including custody, digital banking, fund administration, super ManCo and ESG Rating & Advisory solutions.

This is the latest in a series of strategic global acquisitions for Apex Group to broaden the geographical scope of depositary services in the European market with the addition of Darwin Depositary Services in the Netherlands.

Peter Hughes, Founder and CEO of Apex Group comments: “The addition of BACSIL continues our strategic priority of strengthening the local delivery of our independent depositary services in Europe. BACSIL’s clients will continue to receive all the existing solutions they require and a continuity of service, while also benefitting from access to our full range of global solutions. We look forward to welcoming BACSIL’s clients to the Group, with our single-source model removing the necessity for multiple service provider relationships, delivering efficiency and flexible solutions to all operational requirements of regulated funds.”

Transaction close is subject to customary conditions, including regulatory approvals expected to be granted in 2023. Terms of the transaction are undisclosed.

Kirkland & Ellis LLP and Arthur Cox LLP served as legal counsel to Apex Group, Macquarie Capital acted as financial advisor.

About Apex Group

Apex Group Ltd., established in Bermuda in 2003, is a global financial services provider. With over 80 offices worldwide and 11,000 employees in 38 countries, Apex Group delivers an expansive range of services to asset managers, financial institutions, private clients and family offices. The Group has continually improved and evolved its capabilities to offer a single-source solution through establishing the broadest range of services in the industry; including fund services, digital onboarding and bank accounts, depositary, custody, super ManCo services, corporate services including HR and Payroll and a pioneering ESG Ratings and Advisory solution. Apex Group’s purpose is to be more than just a financial services provider and is committed to driving positive change to address three core areas; the Environment and Climate Change, Women’s Empowerment and Economic Independence, Education and Social Mobility.

About European Depositary Bank

European Depositary Bank (“EDB”) was founded in 1973 in Luxembourg. It was originally established as a subsidiary of Hamburg based private bank M.M.Warburg & CO (AG & CO) KGaA and was acquired by Apex Group Ltd (“Apex”) in 2019. EDB is supported by Apex’s strong global network of over 50 offices worldwide in addition to its extensive European presence with circa 2,000 employees across the region and is one of the largest providers of depositary services in Europe for regulated UCITS and alternative funds with over $160bn Assets under Depositary (as of September 30, 2022).

www.europeandepositarybank.com

About Bank of America Custodial Services (Ireland) Limited

BACSIL is a limited liability company operating since 2007 and is incorporated under the laws of Ireland and authorised under Section 10 of the Investment Intermediaries Act, 1995 (as amended) and is regulated by the Central Bank of Ireland to undertake custodial operations involving the safekeeping of specified investment instruments. BACSIL provides custody and depositary related services to collective investment schemes established in a range  of jurisdictions. The Depositary is incorporated in Ireland with registration number 430806 and is a wholly owned subsidiary of Bank of America Corporation. Bank of America Corporation stock (NYSE: BAC) is listed on the New York Stock Exchange.

Cybersecurity and Data are Key Disputes Concerns in 2023 says New Survey from Baker McKenzie

  • 82% of respondents expect the number of disputes in 2023 to either stay the same or increase.
  • 62% of respondents expect cybersecurity and data disputes to present a risk to their organization in the coming year.
  • 58% of respondents expect ESG disputes to present a risk to their organization.
  • Over 85% of respondents are concerned about internal or external investigations.
  • The economic cycle is perceived to be the greatest external factor posing a disputes threat.
  • Only 22% of respondents felt fully confident or very confident in their organization’s level of preparedness for litigation.

New research from Baker McKenzie, surveying 600 senior legal and risk leaders from large organizations (annual revenue greater than USD 500 million) based in the UK, USA, Singapore and Brazil, has shown that 82% of respondents expect disputes volumes to stay the same or increase in 2023. The sixth annual edition of ‘The Year Ahead: Global Disputes Forecast’ also highlights disputes volumes in a variety of industry sectors. 90% of respondents in the Industrials, Manufacturing & Transportation (IMT) sector, 86% of respondents in the Financial Institutions sector and 85% of respondents in the Consumer Goods & Retail (CG&R) expect disputes volumes to stay the same or increase in 2023.

External Factors Posing Disputes Threats
Last year, COVID-19 was the greatest external factor posing a disputes threat, however concerns about the pandemic have now receded, and have been replaced with other anxieties around disputes. 45% of respondents see the economic cycle as posing the greatest threat to their organization in terms of increased exposure to disputes, whilst 38% saw stock market volatility as a key driver.

Other rising threat factors include the competitive environment (25%) and geo-political issues (24%). Amongst those citing geo-political issues, the dominant responses were around the US, Brexit and China, with Russia featuring lower down the list.

Claudia Benavides, the Global Chair of the Dispute Resolution practice at Baker McKenzie said, “As we have navigated the challenges of COVID-19, lockdowns, war in Europe and high inflation, it seems that uncertainty is the new certainty. New legal developments around the world have further complicated the commercial environment. In 2023, we expect to see corporations experiencing greater numbers of disputes mainly in the areas of cybersecurity & data, ESG, post-M&A issues and tax. Against this, our research shows that despite the risks, organizations still feel unprepared for litigation and should be encouraged to involve disputes practitioners as early as possible on matters as complex as those found in the cybersecurity, ESG and M&A sectors.”

Key Disputes Issues
1. Cybersecurity and data disputes

For the second year running, cybersecurity and data (62%) topped the list of dispute types presenting a risk. The perceived hazard was unsurprisingly highest in the Technology, Media and Telecommunications (TMT) industry, with 73% of respondents concerned about such disputes. Cybersecurity incidents involve financial, operational and reputational damage, and they are becoming ever more frequent. Ransomware attacks saw a 13% increase last year, with a move towards more sophisticated methods.

There is also a trend for attacks targeting non-personal data such as trade secrets and other commercial data. Other attacks ignore data altogether and target control systems. These may be against critical infrastructure systems, such as power generation, water treatment and food processing facilities.

Although the majority of data claims still relate to breaches that result from hacking, there is an expanding number of class action claims being pursued against business models that use data, including claims against proprietary databases that have value and can be licensed to others, cases around third-party cookies used for ad tracking, particularly against data brokers, and claims against services, such as social media sites, who employ data for other purposes, such as advertising.

Cyrus Vance, Global Chair of the Cybersecurity practice at Baker McKenzie said, “We are in a global cybersecurity pandemic, but without a vaccine. Unfortunately, the current forecast in cybersecurity favours the criminal and state-sponsored actor over society’s ability to fight them. And it’s not just about extracting money or data. These attacks serve to diminish trust in our most important institutions and sow fear and uncertainty across our population – one of the principal goals of our adversaries.”

2. Environmental, social and governance disputes

58% our respondents said that ESG disputes presented a risk to their organization in the coming year. The IMT sector (70% of respondents) perceived ESG disputes as the greatest threat closely followed by the EMI industry (69% of respondents). The general backdrop in the IMT sector is one of increasing enforcement from public authorities, and attention from shareholder activists. The specific risks are many, such as plastics and recycling claims which are ballooning against all members of the supply chain, particularly in the US.

Furthermore, concerns over governance disputes (36% of respondents) overtook environmental disputes (31% of respondents) for the first time this year. Governance disputes are about the way an organization is run. They may be based on broad legal duties, which effectively require directors to oversee in good faith the corporation’s compliance with relevant laws. Other broad duties include human rights legislation or anti-bribery and corruption rules.Environmental disputes remain high on the radar. Greenwashing disputes are on the rise, arriving on general counsel’s desks through a confusing array of regulatory and litigation routes, including advertising and antitrust regulators, consumer protection claims and securities litigation.

This area is dominated by concerns over climate change. The number of climate change cases continues to rise, spreading from the US to other jurisdictions. Industry trackers show that major new cases are emerging at a rate of around three per month. Many cases are brought by activists seeking disclosure of key information or to challenge climate policies.

3. Post-M&A disputes

With record volumes of global M&A deals in 2021, triggered by low costs of borrowing and high valuations post-COVID-19, many deals were done at speed and with limited due diligence. The likely consequence is that we will see a rise in post-M&A disputes, particularly as buyers try to recoup valuation gaps as deals underperform expectations in a challenging market. Sellers see reduced earn-outs and buyers see lower returns. Ultimately, they look for legal answers.

In the coming year, we expect to see a rise in post-closing contractual disputes, largely this will be seen through purchase price adjustments, but we also expect to see a rise in breach of representations and warranties claims both against Sellers and W&I insurers.  Typical claims against, indemnities will continue but we also expect to witness closer scrutiny of pre-close covenants, pre-contractual disclosure and post-closing cooperation provisions. We will also see related tortious claims, which take various forms in different jurisdictions but have at their core a wrongful act against shareholders.

Jannan Crozier, Global Chair of the M&A practice at Baker McKenzie said, “We would expect to see closing accounts as a primary area of post-closing M&A dispute as parties look to adjust value on deals. Sellers and insurers should be prepared for a rise in warranty claims and Buyers to defend against claims arising from non-payment of earn outs.  Parties should keep a good record of post-closing claim periods and preserve a good record of the transaction to facilitate in the defence or action of potential claims.”

4. Tax disputes

One in five (20%) of our survey respondents expected tax disputes to present a risk to their organization next year. The perceived risk is particularly high in the EMI sector (28%). Geographically, the figure was highest in Brazil (29%). We also found that expected risk was lower for relatively smaller or larger organizations but peaked for mid to large-sized firms with turnover in the USD 2 billion to USD 10 billion bracket.

We are seeing year-on-year increases in the number of tax disputes and audits being brought. This represents a significant challenge to organizations, stretching tax resources to respond to wide-reaching policy change.

Antonio Russo, the Global Chair of the Tax practice at Baker McKenzie said, “We are seeing year-on-year increases in the number of tax disputes and audits being brought. This represents a significant challenge to organizations, stretching tax resources to respond to wide-reaching policy change. This comes alongside a marked increase in the value of tax disputes, a trend that we expect to continue this year. While many organizations have grown through the pandemic, the financial position of many companies suffered. There remains the potential for large tax adjustments, including those relating to historic tax years due to a lag in audit periods, which represent significant challenges to tax payers’ financial performance.”

5. Employment disputes

Increased employee mobility and the tight job market, making it harder for employers to fill vacancies, are the major factors behind an uptick in restrictive covenant enforcement claims filed by employers, particularly across North America and the Asia Pacific region.

A number of risks result from the post-Covid return to the office. There is frequently a mismatch in employer and worker expectations around what hybrid working looks like in practice. Tensions between accommodating a desire for flexibility and establishing effective working relationships and culture are a potential breeding ground for employment disputes.

In North America and Europe, unions are becoming more active. The rise in industrial action, spurred on by the current economic climate and cost of living crisis, means we anticipate an increase in litigation between trade unions and employers, as well as against governments.

Michael Brewer, the Global Chair of the Employment and Compensation practice at Baker McKenzie said, “The mix of major employee layoffs, global labour unrest and workplace changes during the COVID-19 pandemic have created conditions ripe for a substantial increase in employment litigation in 2023.”

Pressing Charges After An Assault: An Essential Guide

If you’ve been the victim of an assault, you have the right to file a lawsuit against the offender. Pressing charges against them can ensure you get fair compensation and that they will be held accountable for their actions. Assault is a federal criminal offense in the United States.   

It might seem intimidating to begin a legal process, especially if you fear for your safety or that you may face retaliation. However, you can follow a standard procedure and learn more about it to understand better how to approach your case and what to expect.   

You can begin by reading this essential guide for pressing charges after an assault.  

What Is An Assault Charge?  

Pressing charges means filing an assault case against an offender who has assaulted you. This is the first step in the process of pursuing an assault charge. Thus, your role is to report the assault, and it’s ultimately up to the prosecutor to decide whether or not to charge the offender. 

This may leave you wondering, “is it worth pressing charges for assault?.” The best way to seek justice through the law is to do so; therefore, the answer is yes. A criminal case can result in the offender doing jail time, paying a penalty fee, or undergoing court-ordered rehabilitation or probation.  

In a civil case, for instance, monetary compensation is sought from the offender to cover medical expenses for assault injuries, loss of wages, and emotional trauma.    

What Are The Types Of Assault?   

Assault is a criminal offense classified into various categories to determine the punishment that goes with it in each state. Whether the charges you file against an offender will be dropped depends on the distinctions between what constitutes assault and how the exceptions of self defense laws in NC will be applied. 

As a general definition, assault is any act or threat of physical violence committed against another person with the intention of harm. Here are some of its most common types:   

  • Simple assault: This is an attempted assault or threat. The offender intends to carry out threats of physical harm, and the victim has a reasonable case to fear for their safety.   
  • Aggravated assault: This is when an offender has inflicted physical violence on a victim by hand or with a weapon and has caused them serious injuries that need medical attention.   
  • Sexual assault: The offender has committed a physical and non-consensual sexual act against a victim. It also applies to individuals unable to consent to sexual contact.   
  • Domestic violence: An offender has caused harm to their spouse, intimate partner, or family member through physical force and attack.   
  • Assault with intent to kill: An assault charge where the offender has inflicted physical violence onto a victim with the intent to kill. This assault charge can be coupled with an attempted murder charge.   

The assault conviction can either be a misdemeanor or a felony charge, depending on the above case conditions. For instance, if weapons are used and if the victim is disabled or a minor, the penalties are at their most severe.   

How To File An Assault Case   

To begin pressing charges, you need to visit or call your local police station to inform them that you want to press assault charges against an offender. The police will then give you a form to fill out or interview you; this is a report where you provide information and the details of the assault.  

Questions include your name as the victim and the offender’s name, address if you know it and how and when the events of the assault occurred, and any witness statements. From here, the law enforcement officers and a prosecutor will review and investigate your case.  

While waiting for your review, you should consult a lawyer with experience in personal injury cases, as they can help you navigate and understand legal matters and possible court proceedings.   

The Assault Prosecution Process   

Once law enforcement has handed your case to a prosecutor, they will examine the evidence and strength of the case and decide whether to move forward and charge the offender with assault.  

Therefore, it’s essential to include as much evidence and witnesses as possible. You can submit pictures of your injuries and corroborating statements that support your version of events if you’re in the right emotional state to present them.   

Suppose the prosecutor believes there’s sufficient evidence to support a conviction. In that case, they will issue an arrest warrant to detain the offender until they post bail or appear in court to plea. The results of this trial will determine if the offender will be charged with criminal assault and given the due penalties.   

Conclusion  

You can press charges against an offender by reporting it to your local police. The law enforcement officers will take your statement, witnesses, and details of what happened to a persecutor’s office for investigation.   

Then if your case is pursued, your offender could be charged with a specific type of assault. Since assault is a criminal offense, the offender could face jail time or pay you compensation if convicted, among other punishments as stated by the law.   

Blood And Alcohol Testing For Solicitors: A Complete Guide

The parent’s rights to visitation or custody of the child are frequently at issue in care proceedings. As such, the court regularly orders drug or alcohol testing in care proceedings. If the court thinks substance abuse has interfered with a party’s life, it may require drug and alcohol testing. These results often influence a parent’s right to visitation or custody.

Most of the time, clients and solicitors get tested for drugs and alcohol in testing facilities such as Lextox Testing to present evidence of the clients’ sobriety in court. So what’s the process for blood and alcohol testing in these cases?

Techniques For Detecting Alcohol Use

A testing facility often analyses alcohol usage history with blood, hair or urine samples. Here are ways how facilities detect alcohol or drug usage with these samples:

Hair Test

Alcohol intake leaves telltale signs in the hair. These signs include fatty acid ethyl ester (FAEE) ethyl palmitate and ethyl glucuronide (EtG). Combining EtG and FAEE tests allows testers to determine how long-term alcohol use can affect your health adversely. Simultaneously, hair analysis can tell how much alcohol the individual drank three to six months before the test.

Blood Test

A blood test can also determine if someone has used alcohol or narcotics recently, usually within the last few hours. Due to its high cost, blood testing sees little use. The medical technician draws blood from the patient’s arm or the tip of their finger. They then send the sample to the lab for analysis.

Urine Test

Urine testing measures ethanol in the urine. If the donor consumed alcohol in the previous 24 hours, the test would show a positive result.

Fermentation tests are performed afterwards on all positive samples. This test rules out the possibility of samples contaminated with alcohol or another substance and rules out a medical cause for the positive result.

Drug And Alcohol Testing For Solicitors

A positive or negative drug test record can be the deciding factor in a family law matter. Specially designed drug testing procedures can find alcohol, illegal drugs and even some legal medications. Because of this, regulatory agencies sometimes require drug and alcohol tests before making important decisions.

In family law, children’s law and child protection cases, solicitors use blood and alcohol tests to determine if parents have been using drugs for months. A blood and alcohol test can give vital evidence for making informed judgments in various situations, including residence and contact settlements, adoption and guardianship and social services participation.

How Does A Blood Or Alcohol Test Work?

Solicitors’ offices are the typical sites for collecting samples for analysis. These meetings can occur at a contact centre or a client’s home. An experienced nurse or other certified professionals must take the sample.

The nurse or certified professional usually takes a hair sample from the nape of your neck. But arm and leg hair, fingernails and urine could be used instead of head hair if head hair isn’t available or if you meet certain circumstances.

Though hair on different body parts grows at varying rates, the average growth rate for head hair is about 1 centimetre each month. This means that, depending on the hair sample length, the testing facility can establish drug use over a specific period. Hair analysis can reveal a person’s drug and alcohol use for the past year. 

Blood Analysis Results

Analysis of Mean Corpuscular Volume (MCV) is part of the haematology report (whole blood count). The facility can gauge the amount of alcohol a person has consumed by measuring the size of their red blood cells. Consistent and excessive alcohol consumption causes these cells to swell to abnormal proportions. Consequently, a high haematocrit level may be indicative of chronic alcohol abuse.

Biology Lab Report

Liver function testing (LFT) and carbohydrate-deficient transferrin (CDT) testing are part of the biochemistry analysis. The LFT checks the levels of liver enzymes in the blood. 

If a marker level is outside the normal range, it could affect how well the liver works. A high transferrin concentration (CDT) may indicate alcoholism in people who don’t consume carbs. When chronic heavy drinking is the root cause of abnormal LFTs, the CDT research looks at a period of about two weeks.

Consent

Solicitors and testing facilities must get the client’s permission before any testing occurs. Unless compelled by a court of law, third-party consent must be in place to meet GDPR standards while working with a private client. As a result, the testing laboratory must let its clients sign a third-party consent form. If laboratories have this information, they can talk to licensed solicitors about the next drug or alcohol test.

Conclusion

Drug testing could play a significant part in any legal case involving parental rights, child custody or domestic violence. If your client is willing to get tested for drugs, you should also be aware of the likelihood of drug use by anyone living in the same house as your client. The more prepared you are, the better your client’s chances of winning their case.

Corporate and Commercial Law – Stay Informed on Recent Legal Developments across 37 Jurisdictions

We are pleased to present the latest edition of EY Corporate and Commercial Law global update.  The articles in this global update reflect the global reach and diversity of EY Law services, from corporate law to civil law and commercial law to regulatory aspects across 37 jurisdictions, covering Western Europe, Latin America, Central and Eastern Europe and Asia-Pacific.

IN THIS ISSUE

HONG KONG (page 22)

Revised Hong Kong listing regime for foreign issuers

The Hong Kong Stock Exchange enacted on 1 January 2022 a revised regime for issuers incorporated in any foreign jurisdictions. Previously, listing applicants had to be incorporated in recognized jurisdictions (Hong Kong, Mainland China, Cayman Islands and Bermuda) or in jurisdictions accepted by the Stock Exchange. The new regime removes the distinction between recognized and acceptable jurisdictions. All issuers now have to meet the core standards of shareholder protection, which cover different aspects including directors, proceedings at shareholders’ general meetings, variation of rights, amendment of constitutional documents, auditor appointment, removal and remuneration, proxies and corporate representatives, inspection of branch register, and voluntary winding up.

Such protections should be set out in the issuer’s constitutional documents unless the relevant domestic laws and regulations provide the same protections. Existing listed issuers must fully comply with the new core standards or make necessary amendments to their constitutional documents by their second annual general meeting following 1 January 2022.The new regime introduces a revised Chapter 19C in the Main Board Listing Rules to consolidate secondary listing requirements for overseas issuers primary listed on a qualifying exchange (i.e., New York Stock Exchange, Nasdaq or Main Market of the London Stock Exchange).

The new Chapter 19C also sets out the eligibility for dual primary listing by a Grandfathered Greater China Issuer (i.e., an overseas issuer with its center of gravity in Greater China primary listed (a) on a qualifying exchange on or before 15 December 2017 or (b) on a qualifying exchange after 15 December 2017 but on or before 30 October 2020, and controlled by corporate beneficiaries as of 30 October 2020 under a weighted voting rights structure) and a Non-Greater China Issuer with a weighted voting rights or variable interest entity structure that does not meet the usual primary listing requirements.

By Rossana Chu (https://www.eylaw.com.hk/en_hk/people/rossana-chu), Fai Li (https://www.eylaw.com.hk/en_hk/people/fai-li)

LC Lawyers LLP is an independent law firm. It is a Hong Kong law firm member of the global EY network, in collaboration with other law firm members.

READ THE UPDATE https://assets.eylaw.com.hk/content/dam/ey-sites/eylaw-com-hk/en_hk/know-how/ey-law-gl/corporate-commercial/c16-ey-corporate-and-commercial-law-global-update-v2.pdf

Note: This material has been prepared for general information purposes only and is not intended to be relied upon as professional advice for any cases. Should you need further information or legal advice, please contact us.

Edwin Coe Advises on UK Acquisition for Xynergy Groupe SAS

Edwin Coe is delighted to announce that it has advised Xynergy Groupe SAS, an European leader in the production health products and provision of health programmes based in France, on its acquisition of a majority interest in Jane Plan, a UK leader in the weight loss industry.

Edwin Coe’s cross-practice team was led by Corporate Partner, Alexandre Terrasse, along with Nilufar Shahpanahi (Corporate Associate) and members of our EmploymentProperty, Intellectual Property and IT teams. Alexandre commented “We are pleased to have had the opportunity to work with Xynergy Groupe, and delighted that the success of the transaction will allow them to move forward with their plans in the UK.

London-based Jane Plan offers bespoke diet food delivery programmes, which are portion and calorie controlled, supported by psychological support and guidance from a team of nutritionists and behaviour change psychologists.

About Edwin Coe

Edwin Coe LLP is a full service law firm based in the heart of London’s historic legal district in Lincoln’s Inn. Founded in 1913, we have grown from our litigation origins to become a thriving and dynamic practice, providing a comprehensive range of legal services to meet the needs of a wide variety of businesses, individuals and organisations based throughout the UK and internationally.

With 44 Partners, we are ranked 115 in the 2021 edition of The Lawyer ‘UK 200’ law firms and are recommended in all the major legal directories. We provide clients with innovative, tailored and integrated legal services and combine a highly personal and responsive service with industry leading expertise.