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Legal Due Diligence: Beware of Credit Assignments

The assignment contracts

Credit assignment is the contract by which the creditor (assignor) transfers its right to credit to a third party (assignee), who will collect it from the debtor (assigned).

This is an increasingly common practice, involving not only banking institutions but also commercial companies that, in turn, also assign receivables to their suppliers.

Audits in DD

Right from the Due Diligence (DD) phase aimed at the acquisition of company shares/shares or companies and business units, it is essential to pay attention to the issue of credit assignment and assess whether the payment flow is in accordance with the agreements made, notifications, acceptances and exchange of information carried out between the parties involved. Verification is necessary, among other reasons, to prevent:

  • (a) the obligor who has paid erroneously (e.g., payment in favor of the assignor despite notification or acceptance of the assignment) is forced to pay the same amount again in favor of the assignee;
  • (b) the assigning creditor collects sums not due to it and, (i) on the one hand, is forced to return the sum to the assignee or the debtor (if the latter has in the meantime repeated the sum in favor of the assignee) and, (ii) on the other hand, may be subject to actions for damages by the debtor and/or the assignee.
  • (c) the transferee creditor is forced to “chase” the debtor who has paid erroneously or an assignor creditor who has collected an undue sum.

Verifications must be conducted based on legal regulations.

It is noted, for example, that:

There are limits to assignment in that credits that are strictly personal in nature, credits whose transfer is prohibited by law or credits whose assignability is expressly excluded by the parties (for example, a specific procedure is provided for the assignment of credits with public administrations) cannot be transferred. It is therefore a good idea to check the nature of the assigned receivable to avoid incurring null and void or ineffective assignment contracts in the recourse assignment mode, the assignor must guarantee that the debtor will perform the due performance. In the event of default, the assignee may turn to the assignor, who in turn is required to pay the amount owed by the debtor.

Therefore, in the presence of this mode of assignment, to ensure full release of the assignor, it will have to be verified that the assigned debtor has paid its debt to the assignee in full.

The assignment of credit is consensual in nature and, therefore, is perfected by the agreement reached between the assignor and assignee, not by acceptance or notification to the assigned debtor.

Therefore, to exclude actions for breach of contract on the part of the assignee, it is appropriate for the assignor himself to give timely notice of the assignment to the assigned debtor.

There is no peremptory deadline for notifying the assigned debtor of the assignment, which can be done in any form suitable for the purpose, even a notice sent by registered mail is sufficient (and even a verbal notice).

The law also does not identify the party required to notify the assignment of the claim. In this regard, it should be remembered that prior to acceptance or notification there is a presumption of good faith on the part of the assigned debtor that it has fulfilled its obligations to the assignor, with the consequence that payment made in favor of the assignor itself is fully dischargeable. The assignee can overcome this presumption by proving, by any means (including witnesses), that the assigned debtor was in any case aware of the assignment.

Therefore, to prevent the assigned debtor from being forced to repeat (in favor of the assignee) the payment already made (in favor of the assignor) it will be necessary not only to evaluate the exchange of written information but also to screen, possibly through targeted interviews with apicals, the verbal information acquired from the assigned debtor. The difficulty of such a verification is well evident; therefore, it would always be advisable to provide written notification of the assignment of credit.

In the presence of credit assignment contracts, it is therefore a good idea to dedicate within the DD check list (aimed at the acquisition of company shares/shares or companies and business units), a specific section referring to credit assignments involving the client company as assignor, assignee, and transferee.

LEAP Produces Best Practice Technology Strategy Guide For Criminal Legal Aid Firms

LEAP, the largest independent provider of software to law firms worldwide, has written a white paper on implementing a technology strategy for building a sustainable crime legal aid practice. This follows the Ministry of Justice (MoJ) review, published in December 2021, considering the future and long-term sustainability of the criminal legal aid system.The white paper is written in anticipation of the government publishing its response by the end of March 2022.

The white paper recommends the key items that crime legal aid firms should be thinking about at the moment to help boost the fragile margins of profitability and sustainability such as:

  • Fully embedding a single system to run their firm. In order to account for the 24/7 nature of criminal legal aid. Solicitors are dependent, at any given time, on reliable and accurate information whether working from the office, attending the police station or out at court. By implementing a single system to run their practice mobile criminal legal aid lawyers have everything they need close at hand.
  • Implementing a technology solution to help with the heavy lifting. Technology can provide huge benefits to the way criminal lawyers work by automating the processes that they follow. By improving the accuracy and speed of document production, the recording of their attendance and time, and by overcoming the complexities of claiming for payment from the Legal Aid Authority (LAA) powerful technology can provide the perfect partner to streamline key tasks and improve productivity.
  • Efficiency and risk-reduction. Helping to minimise any risk of firms losing their legal aid contract, technology can deliver compliance, accuracy and consistency to the way criminal lawyers practice. With the right technology in place firms can avoid misreporting and mis-accounting, or losing cases as a result of poor communication, misplaced evidence or documentation.

Christina Grzasko, author of the white paper, expert on legal aid billing systems and long-time crusader for law firms that do legal aid work says:

“Legal aid practice isn’t for the faint hearted because you are facing the kind of problems that don’t beset any other type of business. Everything you do is political and subject to government schemes. This can make long term business planning very difficult. It takes a certain kind of determination and belief in the importance of legal aid to survive in this environment. It also takes some hard-headed business approaches to help reduce the risks the Ministry of Justice (MoJ) can present to your business. Sustainability is a huge issue, allied with staff retention, and much of it comes down to the 24-hour nature of the work and the low rates of pay.”

Legal Aid practice is a very specific discipline that can only be successfully managed by efficient, well trained staff supported by a single, embedded productivity solution. LEAP is a fully integrated legal software system that covers every aspect of legal aid practice from police station to crown court, defence statements to LAA audit reports, totally mobile and up to date at all times.

View the white paper.

LEAP Legal Software has been helping small to mid-sized law firms to become more efficient and profitable, globally, for more than 25 years. 

Kenta Ikebe joins Leaders in Law as the White-Collar Crime Law Member in Japan

Leaders in Law, the leading platform in its field, is delighted to welcome Kenta Ikebe as our exclusively recommended & endorsed White-Collar Crime Law expert in Japan. Kenta’s office is located in Fukuoka.

Kenta has been registered as a lawyer in December 2012 and worked at Meilin International Law Office, which mainly serves corporate clients and provides comprehensive legal services, including international legal affairs. Kenta has been a partner at Meilin International Law Office since 2019. In addition, he is currently an external director of a company and a board member of a school corporation.

He handles all aspects of corporate legal affairs, including the development of corporate structures, back-up of legal staff, training lecturers and crisis response, with a focus on White collar crime, labour law, personal data protection and other legal matters. He provides easy-to-understand explanations and services to company personnel and managers on specialised fields for a wide range of clients, including small and medium-sized enterprises and companies outside Japan.

Kate Wormald Joins Leaders in Law as the Prime Brokerage and Derivatives Member in the United Kingdom

Leaders in Law, the leading platform in its field, is delighted to welcome Kate Wormald as our exclusively recommended & endorsed Prime Brokerage and Derivatives expert in the United Kingdom. Kate’s office is located in London.

Kate has advised and represented a large cross section of the hedge fund community and alternative asset managers over the past 20 years, since founding Oesa in 2002. She has also been engaged by Ernst and Young, large pension funds, a well-known charitable trust, industrial corporates and proprietary trading houses, all of whom required specialist legal advice in relation to their trading and derivative documentation.

Kate qualified as a barrister but decided to pursue a career in the City in house, as a sales and trading legal adviser. Specialising in derivatives and complex structured products, she gained invaluable experience in-house at several large financial institutions including Daiwa Securities, Salomon Brothers (now Citi) and Goldman Sachs, where she was the head of the European capital markets legal team that encompassed not only all the derivative trading activity for EMEA but also its prime brokerage business.

Why Are Women More Likely To Study Overseas Than Men?

There are several reasons why women are more likely to study overseas than men. For one, women tend to have higher levels of educational attainment than men. Women outnumber men in post-secondary education institutions in many countries, allowing them to pursue studies abroad more frequently. Additionally, women are often more willing to take risks than men, including the risk of living and studying in a foreign country. Studies have shown that women are more likely to see the opportunity to learn overseas as a positive experience, whereas men are more likely to see it as a burden. Finally, women tend to be better able to finance their studies than men, as they often receive financial support from their families and government scholarships specifically for female students. These factors contribute to women being more likely to study overseas than men.

Educational performance:

Women are traditionally more likely than men to study overseas, and several factors contribute to this trend. For one thing, women generally display better educational performance than men. This is partly due to biological differences and societal expectations, which pressure women to achieve academic success. Additionally, women are often encouraged to study subjects such as foreign languages or cultures, making it easier for them to obtain study abroad scholarships and opportunities. Finally, many women view learning overseas as a valuable way to gain independence and experience new cultures, which may not be strongly associated with men. Overall, educational advantages, social expectations, and personal motivation make studying overseas more appealing for women than men.

Gender-specific Interest:

Although men and women are equally likely to study overseas, women are more likely to pursue study opportunities outside their home countries. This is because women are more interested in other cultures and languages. In addition, women view studying abroad as an opportunity to gain independence and learn new skills. As a result, they take advantage of study abroad programs and pursue opportunities to live and study in other countries. While there are many benefits to studying overseas, women reap better benefits from these programs due to their greater interest in different cultures.

Labor market orientation:

Women tend to be career-oriented and focused on building their professional skills, making studying abroad an attractive option. Additionally, the demand for workers with advanced degrees and specialized skills is growing in many areas of the economy. Women understand that studying overseas can help provide them with the preparation they need for these higher-level roles. Furthermore, women have greater access to financial resources to support study abroad opportunities, including scholarships and grants explicitly dedicated to female students. Thus, it is clear that the many benefits associated with studying abroad can help explain why women are more likely than men to seize this unique opportunity.

Encouragement:

Women are generally encouraged to pursue higher education than men, both by their families and society. Women are also more likely to receive scholarships and financial aid, making it easier to afford the cost of studying abroad. Additionally, studies have shown that women adapt better than men to new environments and cultures, which can be a significant advantage when looking in a foreign country. Finally, women tend to be more interested than men in travel and cultural exchange, making them more likely to seek opportunities to study overseas. These factors explain why women are typically more likely than men to study abroad.

Anticipated discrimination:

Several factors may contribute to this trend, including discrimination and a greater desire for independence. For many, attending college outside their home country offers an opportunity to live independently and study in an unfettered environment, free from the expectations and constraints of traditional gender roles. Additionally, women are often subjected to more significant discrimination than men in many parts of the world, making them more inclined to seek opportunities elsewhere where they can focus on their studies without facing additional barriers or prejudice. Ultimately, while many challenges come with studying overseas, for many women, these benefits far outweigh the costs.

Intersectionality of gender and social background:

At the most basic level, this difference is rooted in the social and cultural constructs of gender, which have historically viewed men as the primary decision-makers and influencers in society. As a result, women continue to face more significant barriers and resistance when pursuing opportunities to study abroad. However, this difference also has its roots in historical and social inequalities based on race, class, sexuality, and other forms of social difference. These intersecting systems of oppression often create a layered effect on women’s ability to study overseas, with each additional marginalizing factor compounding the challenges they face. We can help ensure that all students, regardless of their gender or other social backgrounds, have equal access to study opportunities outside their home countries.

Conclusion:

Many factors contribute to the decision of whether or not to study overseas. Women are more likely than men to choose to study abroad, and this is due to a variety of reasons, including educational performance, gender-specific interests, labor market orientation, and encouragement from family and friends. However, women also face discrimination and challenges that men do not experience, which is yet to be.

Author Bio

KC Raj is a career counselor and recruiter with many years of experience. He is interested in human development, education, immigration, inequality, and many other international issues. 

 

David Rechulski Joins Leaders in Law as the Criminal Law Member in Brasil

Leaders in Law, the leading platform in its field, is delighted to welcome David Rechulski as our exclusively recommended & endorsed Criminal Law expert in Brasil.

Founder and full partner of the firm, David Rechulski has more than 30 years of professional experience and is one of the most admired and respected lawyers in the country in the corporate criminal and criminal compliance areas.

Its rigorous ethics in the practice of law and its legal and strategic quality, in addition to its full availability in serving its clients, have given it important mentions in national and international legal publications, such as Best Lawyers, Global Law Experts, Leaders in Law, Corporate INTL and Leaders League.

Rechulski has been ranked for more than 15 consecutive years by the Brazilian publication Analysis Advocacia as one of the most admired lawyers in specialized Criminal Law and is one of the only 35 lawyers in the country to be mentioned in all its editions, in addition to appearing in first place since the creation of the Ranking of Lawyers.

The Ukraine Invasion Drives Reform To UK Property Law

The impact of the Russian invasion of Ukraine is likely to reverberate through Europe and across the rest of the world for years if not decades to come. While questions remain about the speed and effectiveness of the UK government’s response thus far, there are some changes being made closer to home that will not only impact the Russian economy, but will also alter the legislative landscape of the UK.

It has been announced that long-tabled reforms to the Economic Crime (Transparency and Enforcement) Bill have been brought forward and are set to be fast-tracked through the Houses of Parliament in response to the war in Ukraine. One of the main issues it will seek to address will be the lack of transparency which surrounds overseas ownership of UK property.

The reforms propose the creation of a ‘beneficial ownership register’. This will aim to establish a level playing field between UK companies that already report to Companies House on the matter of beneficial ownership, and those based overseas, by actively identifying all beneficial owners of overseas assets that also have interests in UK properties.

To be maintained by Companies House and made publicly available, it’s expected that the scheme will follow the same template used for the register of ‘persons with significant control’ of a UK company, which was introduced in 2016.

Robert Lee, Corporate partner from regional law firm Wright Hassall, explains:

“Under the new legislation, every overseas entity featured on the ‘beneficial ownership register’ must supply information including the details of its all its registrable beneficial owners and any ‘managing officers’ such as a director, manager or secretary.

“Those found to be submitting information which is false or misleading to the register could potentially find themselves facing a fine, a two-year prison sentence or a combination of both. Information will have to be updated annually and if it isn’t, then the entity and its officers will be liable for a fine. If the situation persists, this would become a daily default fine of not more than £500.

“It will not be legal for an overseas entity to own property in the UK without being entered on the register, and this will be applied retrospectively to any properties purchased by overseas entities in England and Wales after 1st January 1999.”

Details within the bill specify that those overseas entities who fail to retrospectively place themselves on the register will face major restrictions when looking to sell-on a property. However, a transition period of 18 months has been proposed, which will come into force from the day the Bill becomes law. This should offer ample time for any historic transactions to be placed on the register, before restrictions are enforced.

Lee adds:

“Restrictions will first take the form of a Government notice requiring the entity to register within 6 months, and if this doesn’t have the desired effect, a fine will be levied on the overseas entity and every officer of that entity will find themselves facing a two-year prison sentence, a fine, or a combination of the two punishments.”

Clarification on the term ‘beneficial owners’ is already set out in Schedule 1 of the Companies Act 2006, which defines what a ‘person with significant control’ of a UK company is. In order to be deemed a ‘beneficial owner’ of an overseas entity for the purposes of the register, a person or entity will have to meet at least one of the following conditions:

  • They hold, directly or indirectly, more than 25% in the overseas entity
  • They hold, directly or indirectly, more than 25% of the voting rights in the overseas entity
  • They hold the right, directly or indirectly, to appoint or remove a majority of the board of directors of the overseas entity
  • They have the right to exercise, or actually exercise, significant influence or control over the overseas entity
  • They are trustees of a trust, members of a partnership, unincorporated association, or other entity which is not a legal person under the law by which it is governed; and they have the right to exercise, or actually exercise, significant influence or control over the activities of that trust or entity

Lee concludes:

“Despite the seemingly good intentions of this new register, questions have been asked about how it will be enforced in reality. In its current form a register of this kind would impose significant extra work on Companies House and the Land Registry and would require extra funding to make enforcement a practical reality.

“Only in the months going forward will it become clear whether the new register, as well as the other measures contained in the Bill, will have the impact the government presumably intends.”

Robert Lee heads up the corporate law group at Wright Hassall. With over 20 years’ experience, he specialises in mergers and acquisitions, turnarounds, corporate restructuring and joint ventures. Robert also has extensive experience in advising on shareholder agreements, company law, corporate finance and refinancing and takeovers, both within the domestic and international environments. 

Wright Hassall is a top-ranked regional law firm, providing legal services including: corporate law; commercial law; litigation and dispute resolution; employment law and property law. The firm also advises on contentious probate, business immigration, information governance, professional negligence and private client matters.

Photo of Russian embassy (definitely Russian owned!) by Kbthompson via Wikipedia – cc by 3.0.

Kook-Hee Lee Joins Leaders in Law as the Exclusive Tax Services Member in South Korea

Leaders in Law, the leading platform in its field, is delighted to welcome Kook-Hee Lee as our exclusively recommended & endorsed Tax Services expert in South Korea.

Kook-Hee has been practicing CPA for over 30 years. Kook-Hee worked as international tax partner for Korean member firms of Ernst & Whinney (during 1980s) and Moore Stephens (for 20 years until 2000) and provided the afore-mentioned services for Coca Cola, Reebok International , R.J. Reynolds Tobacco, Portman Holding Engineering, and 23 other US companies and 17companies in the Region of Europe, Asia and Middle East without any tax disputes or tax examination based on clear and definite accounting and competent tax planning, resulting in meeting their satisfaction. In addition, Kook-Hee had remarkable working experience for Korea Electric Power Corporation and a joint-venture refinery company with CALTEX before practicing CPA.

Practice Areas

  • Outsourcing Accounting, Tax, Payroll, and Payment Control
  • Consulting on Domestic and International Taxation
  • Company Formation, of foreign companies in Korea.

Education

Kook-Hee Lee studied economics at Seoul National University and Ph.D. Degree was awarded for the thesis of “A Study of Permanent Establishment Concept as Applied to International Taxation” from Hongik University.

Five Business Dispute Trends To Look Out For In 2022

With COVID-19 and Brexit bringing a range of issues to businesses across the UK, this article looks at what the knock-on effects are with regards to business disputes that could be faced in 2022.

They say that the path of true love never runs smoothly; the same can be said for business. A company is made up of many moving parts and often involves relationships with suppliers, clients, collaborators, and partners.

While these relationships are extremely beneficial, they can also bring bumps in the road in the form of disputes.

In the last couple of years, we’ve seen some major global changes which have had a knock-on effect on commercial litigation in the UK. Keep reading and we’ll take a look at five business dispute trends to look out for this year…

Cybersecurity addressed in court

Cyber-attacks and hacking increased by 11% in 2021. Fueled by the pandemic and the fact that more people than ever were working from home, cyber criminals had a field day in 2020 and 2021.

Alarmingly, during the pandemic, there was also an increase in cybercrimes being committed to company employees. Although, at present, only about 0.3% of cybercrimes are actually prosecuted.

However, the growing focus on ESG (Environmental, Social and Governance) factors means that more and more cybercrime cases are now making their way to court in the UK.

Employment issues caused by COVID-19

The COVID-19 pandemic has impacted on almost every single aspect of our lives, and business are no exception. As businesses were forced to close their doors and furlough their staff, an inevitable knock-on effect was that deadlines were missed, meaning terms of commercial agreements were broken.

Although the pandemic was, of course, out of the hands of the businesses involved, there has been an increased number of cases brought by clients looking to recoup the losses that they experienced due to non fulfilment of contracts.

While many companies have managed to find solutions to these problems through a commercial litigation solicitor, many more will still find themselves in court in 2022. On top of this, many businesses are finding themselves having to deal with the quagmire which is staffing issues which may end in a dispute.

One example of this is that some businesses either furloughed staff during the pandemic, or paid them out of pocket, only to find that those staff are handing in their notice once they are instructed to return to the workplace.  Understandably, a lot of employers have been angered by this and have sought to make a claim against those employees.

Commercial property rent

In the UK, a significant number of businesses were forced to move to remote working for up to 18 months to slow the spread of COVID-19 and protect their staff. Subsequently, lots of businesses found that they were working at a limited capacity which, although unavoidable, led to specific problems with rent and mortgage payments on commercial property.

In many cases, businesses simply did not have the funds to keep paying their commercial rent or mortgage and found themselves slipping into arrears. This has led to an increase in claims by landlords and mortgage companies looking to get hold of the cash that they’re owed.

Insurance loopholes

Insurance is an essential part of any business, and many companies spend a significant amount of money on their business interruption insurance. This protects them against factors out of their control which may mean that they have to cease trading for a period of time.

Of course, one important factor was the pandemic, and many businesses were relying on their business interruption insurance to dig them out of a considerable financial hole.

Unfortunately, as with other kinds of insurance, many insurers have worked hard to find loopholes when it comes to COVID-19. This has forced a lot of companies to resort to legal action in order to claim what they believe they are owed.

The insurance sector was increasingly under fire during the pandemic as many companies such as wedding insurers refused to pay out on claims, stating that COVID-19 was not covered in the contract.

Changes to auditing

The Accounts and Audit regulation changes of 2021, relating to the 2020/2021 and 2021/2022 financial years, mean that we’re likely to see an increase in claims against directors and unfair prejudice.

A company’s shareholders tend to take a deep interest in the way that a company is being run. The shareholders usually won’t hesitate to take legal action if they feel that their investment has been prejudiced in some way.

For company directors who may be caught out by the new rules, this could be disastrous. Particularly as a growth in litigation funding for third parties will make claims easier to pursue than ever before.

A challenging year ahead for businesses

As we navigate our way out of Brexit wrangling and the COVID-19 pandemic, a huge number of businesses are still struggling to recover from what has been a devastating couple of years, with many more which have since gone under.

For most of these surviving businesses, the prospect of a legal dispute is disheartening to say the least. Any business facing legal action of any kind should always kit themselves out with a great commercial litigation solicitor as soon as possible.

 

Neil Brydges Joins Leaders in Law as the Exclusive Tax Services Member in Australia

Leaders in Law, the leading platform in its field, is delighted to welcome Neil Brydges as our exclusively recommended & endorsed Tax Services expert in Australia.

Neil is a Principal Lawyer in the business law area of Sladen Legal, with a particular focus on taxation advice and disputes.

Taxation law is a complex area. Neil’s aim is to provide technical expertise to clients, commercially applied and in a friendly and approachable manner. Neil’s practice involves advice, audits, disputes, and transactions. The client mix includes both family groups and business enterprises. Neil also regularly assists professional advisors, including tax agents, accountants and financial advisors, to understand complex legal issues and help them to better assist their own clients.

Neil is a Chartered Tax Advisor with The Tax Institute and accredited as a specialist in taxation law with the Law Institute of Victoria. Since 2019 Neil has been named one of Australia’s “Best Lawyers of the Year” in the practice of tax law. The list is compiled by United States peer-review company Best Lawyers and published in the Australian Financial Review. Neil was also recognised in Doyles Guide as a recommended tax lawyer in 2021.