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Insolvency Guide

September 2013

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VOLUME NINE ISSUE TWO

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ca C n o no rp w o ra m Ple be te or as r e e e in vi ad IN fo si rm t w in TL at ww i t M io . n co s e a on rp g ou -in nti az r in r F tl. RE com ety e E e- for on m lin ag e

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CONTENTS

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EDITOR’S TALK

Final annual investment figures show the UK has continued to strengthen its position as the leading European destination for foreign direct investment.

The UK’s 2012/13 Inward Investment Annual Report, published by UK

Trade and Investment (UKTI), confirms rises in the number of projects and jobs secured compared to 2011/12.

Trade and Investment Minister Lord Green noted: “The UK has received a

major vote of confidence from foreign investors, confirming that the UK remains a world leading business destination. Attracting foreign investment

is an important element of the UK government’s economic and growth programme, and UKTI will continue to work with companies to help create

and sustain a globally attractive, highly competitive and truly international

UK: A Leading European Destination for FDI

economy.”

The data published by UKTI bears out trends reported by independent reports, including those published by Ernst and Young, the Financial Times and UNCTAD.

Argentinean advisory firm Maciel, Norman & Asociados discusses the topic of issuance of shares with a premium under Argentinean Law.

The UK continues to attract high quality investment from around the globe,

not only from our established economic partners in Europe, North America and Japan, but also from key growing markets such as India and China.

Investments are also made across a broad range of innovative and eco-

nomically important sectors. The combination of these factors means the UK continues to be in a strong international position for attracting foreign investment.

Maciel, Norman & Asociados

Corporate INTL examines the latest trends and developments affecting global industries.

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Ryan Daff, Editor

International Sector Panel Insolvency Guide

Others

News & Views Global Tax Who’s Who Route to Austria Route to China Route to Germany Route to India

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A focus on leading insolvency advisers – prefaced by the latest industry commentary from INSOL Europe.

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disclaimer Every effort is made to ensure the accuracy of the contents of Corporate INTL. However the publishers cannot accept responsibility for any errors and subsequent claims made by any third parties. The magazine contains predictions for the future of various companies and sectors. However, no forward statement should be construed as profit forecast.

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Editor: Ryan Daff ryandaff@corp-intl.com

Advertising: advertising@corp-intl.com 0121 237 8831

Journalist: Carneika Washbrook carneikawashbrook@corp-intl.com

Switchboard: 0121 236 0411

Designer: Hardy Mason hardymason@corp-intl.com

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Profiled IP advisers from around the world – complete with a useful location finder.

Intellectual Property Guide reprints & permissions All rights reserved. No part of Corporate INTL may be reproduced or transmitted in any manner or by any means without the prior permission of the publishers.

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CorporateINTL

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JRS Corporate Ltd Sept 2013 Corporate INTL

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NEWS&VIEWS Businesses Get Creative with Consumer Data at the ‘midata’ Innovation Lab launch

In July, consumer minister Jo Swinson announced that the ‘midata’ Innovation Lab had opened, and leading businesses, including Allfiled, BIS, Ctrl-Shift, Grapple and Telefonica, took up the challenge to create new digital apps using real consumer data. The ‘midata’ Innovation Lab’s aim is to develop an environment that allows participants to learn how to empower and protect consumers while building data driven innovative services. Jo Swinson said: “Today’s most successful businesses are the ones that are creative about building customer relationships. The new ’midata’ Lab is an exciting opportunity to put this to the test and explore how businesses

UK Companies Win New Business in Kazakhstan Prime Minister David Cameron became the first British premier to visit Kazakhstan on June 30, 2013. He was joined by 30 small and large companies from a diverse range of areas, including the energy, high tech manufacturing, education, architecture and financial & professional services sectors. There are significant development opportunities in Kazakhstan for British companies. The government is confident that UK expertise and knowledge in oil and gas means that the UK is well positioned to secure a significant proportion of contracts due for award within the next 18 months. Kazakhstan is also hosting the 2017 Winter World Student Games, which presents opportunities for British companies in design, construction and

Rising Costs is the Main Financial Concern for Businesses According to the Cash Flow and Finance Panel Report, conducted by The Forum of Private Business, 42% of companies see rising costs as a financial concern. Although this is a 12% drop from last year, it means that it is still the main worry. Late payment and cash flow issues have seen an increase in frequency. The number of large companies being added to The Forum’s late payment Hall of Shame has been gradually rising. The report says that this may be due to companies considering growth, but not being able to access funding to do so. One of the recommendations in the report was that businesses in the Hall of Shame or similar programmes should be removed from their listing as a prompt payer, made ineligible for government contracts and face possible termination of any current contracts. The Forum also recommended smarter regulation of current and future providers to businesses. 4

could help customers use the data around their spending habits to make better choices. “There is a lot to be gained from being open and using the information gathered on customers with their knowledge. Developing new and innovative ways to see data also helps improve customer service which will in turn promote growth. I would encourage businesses and developers alike to take advantage of this opportunity and establish themselves as a market leader in the digital market.” So far ‘midata’ has made significant progress as a voluntary measure, with more than 20 leading businesses in the energy, finance and telecoms sectors signing up.

event management. The country also has an ambitious new space technology development program and is devoting funds to the further development of its scientific and technical knowledge. Trade and investment minister Lord Green said: “Kazakhstan is emerging as the dominant economy in central Asia and offers many opportunities for British businesses small and large across a wide variety of sectors. This first ever trade delegation led by a British prime minister demonstrates our commitment to strengthen the trade and investment links between our two countries.” The UK and Kazakhstan already have a strong trade and investment relationship based on free market access, significant two-way trade and regular dialogue at senior levels. The UK is one of the largest investors in Kazakhstan, having provided almost £10 billion of total foreign direct investment since the country’s independence in 1991. Since 2000, the economy of Kazakhstan has been one of the 10 highest performing economies in the world. The World Bank predicts that it will become a high income country by the end of the decade. Another important concern expressed in this year’s report is regarding access to finance. The percentage of businesses identifying this as a concern has risen 6% since 2012 and 17% since 2011. A panel member commented: “35 years with a bank and they still want a director’s guarantee for a small overdraft representing only 6% of the company’s net worth. The loan was only wanted for a three-month period while a large contract was being completed.” According to the report, businesses don’t see much difference between banks, and are reluctant to recommend their bank to other businesses. Members of the panel felt that nothing has been learnt from some financial institutions over-reaching themselves up to 2008. One noted: “We would like to see greater local decision-making and greater certainty in the overall business climate.” Companies do not want their business to be put at risk because of irresponsible decisions made by bankers. More than 50% wanted either the banks broken up or greater responsibility and punishment on individuals who put the economy at risk, or both of these options. The Cash Flow and Finance Panel includes approximately 80 members who have volunteered to provide feedback on financial issues.

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Restrictive Finance Holds UK Business Back Almost two thirds of businesses believe that as a consequence of restrictive or inflexible bank overdrafts, they are missing out on business opportunities. This is according to new research from the award-winning invoice and asset based lender, ABN AMRO Commercial Finance. The results show that a third of companies feel that if an opportunity to invest came along, they would be unable to take it in their current financial situation. More than 70% say they are being discouraged from making investments and taking on new customers. Their main issue regarding their overdraft facilities seems to be flexibility of funding, with the majority of businesses saying it is what their facility lacks. They also feel constrained by overdraft charges. Companies are worried about a general lack of support from their providers. More than two fifths of them say that overdrafts are more difficult to access now than they were in 2008, before the recession. A similar number say that they are also harder to secure than this time last year. These restrictions have led to three quarters of businesses missing out on opportunities to expand. Even when businesses are able to secure an overdraft, a large number of them (84%) find that they are unreliable, and almost two thirds are in agreement about the inadequate support from their bank. Consequently, more than a third of businesses say they have lost faith in traditional sources of finance. Peter Ewen, ABN AMRO commercial finance managing director, commented: “Businesses have realised that overdrafts are no longer fit for purpose and are, in fact, restricting their growth. “Many have fallen out of love with their facility providers and are looking for more sustainable finance partners. With more reliable funding in place, UK businesses will have a real opportunity to succeed.” This funding would allow companies to grow. Most say it would be used to improve cash flow and working capital, as well as a safeguard against the worsening economy. Businesses agree that if they had reliable funding they would be more positive about their prospects, with 44% believing that they would be more successful.

IP Minister Advises Oxfordshire Businesses on Protecting their Intellectual Property On June 27, 2013, IP minister Lord Younger met with three ambitious Oxfordshire businesses to discuss how protecting their intellectual property can help their business grow. Best Foot Forward, driverConnex and The Native Antigen Company gathered at the Cherwell

Innovation Centre, to discover how protecting their intellectual property, with support from GrowthAccelerator – a national business advice service aimed at facilitating growth – will help them to grow and build better futures. Among the issues the IP minister discussed with the companies was the importance of IP as part of a growth strategy, the challenges the businesses have faced with protecting their IP and how they have overcome these to take their businesses forward. Minister Lord Younger said: “Intellectual property is an important element of a growth strategy for business. The Intellectual Property Office is working hard to develop initiatives which support businesses to identify and develop strategies that maximise the value of their IP. The ‘IP Audits Plus’ scheme is one of those. I am pleased to see that businesses are benefitting from this support.” All three companies have benefitted from support through the Intellectual Property Office’s (IPO) IP Audits Plus scheme. It is one of a number of initiatives available through the IPO, developed specifically to support small and medium enterprises (SMEs) in identifying and maximising the value of their IP. Mark Andrews, MD of driverConnex, commented: “The support we’ve had from GrowthAccelerator and through the IPO IP Audits Plus scheme in helping us to identify our IP and developing an effective strategy to manage our IP has been invaluable to us as a high growth, innovation company. “The opportunity to talk directly with a government minister about our needs is another example of the value driverConnex has derived from being part of the GrowthAccelerator scheme.”

– including smartphones and tablets. The most popular queries for laptops and desktop computers were for flights to short haul destinations. These accounted for a 31% share of computers’ flight-related searches. Long haul destinations led on mobile devices, accounting for 28% of searches. A revealing figure was for the most searched term of all flight-related searches. ‘Cheap flights’ made up 17% of computer searches and 20% of all searches made via mobile devices, making it the most queried term overall. Also, the website, Cheapflights was not only found to be the most visible site for

Flights Sector Report Reveals ‘Cheap Flights’ as the Most Searched Term In May 2013, a new independent report, ‘Flights Sector Report – Issue 9’ by leading digital marketing agency Greenlight, revealed that consumers made a total of 3.2 million online searches for flights in May – more than 17% being made on mobile devices. Greenlight’s reports profile search behaviour in various industries. The Flights Sector Report assesses which brands, websites and review sites have the most search visibility in natural search, paid media and social media. This gives the reflection of when UK-based searchers go to Google UK to look for flights to domestic, short haul and long haul destinations. The report shows the most popular terms consumers used to look for flights on Google UK, as well as the most visible sites for those searches and the size of the potential online audience. The results are split between computers (laptops and desktop) and mobile devices

flight-related searches on both laptops/ desktops and mobile devices, but it also achieved the highest share of integrated search visibility. The 10 most queried flight-related terms were similar on computers and mobile devices. But they did differ in two cases. ‘Flights to Thailand’ was among the top 10 searches on computers, but not mobile devices; meanwhile, ‘flights to Florida’ was featured among the top ten searches on mobile devices, but not on computers. Greenlight is a leading independent digital marketing agency with more than 100 blue-chip clients including Santander, New Look, Sky and ghd. It is considered to be the premier thought leader in the sector publishing widely read industry reports, original research and speaking at trade events.

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UK

UK: A Leading European Final annual investment figures show the UK has continued to strengthen its position as the leading European destination for foreign direct investment. The UK’s 2012/13 Inward Investment Annual Report, published by UK Trade and Investment (UKTI) – the government department that helps UK-based companies succeed in the global economy – confirms rises in the number of projects and jobs secured compared to 2011/12. The report shows that in the last financial year: • The UK saw 1,559 investment projects secured – 11% more projects than the number recorded during the previous year. • These projects are estimated to have brought with them 170,000 jobs – 51% higher than in the previous year. Of these, nearly 60,000 were new jobs and 110,000 existing jobs were safeguarded. • UKTI and its partners were involved in delivering nearly 85% of the projects secured. The investment figures published in the UKTI report show improvements on the preliminary results announced at the Global Investment Conference in London on the 9th of May. The annual report also shows that the recorded increases are spread throughout the UK. Wales and Northern Ireland in particular have recorded significant increases in investment projects – 191% and 41% respectively – while Scotland registered a 16% increase in the number of investments. The number of FDI projects landing in England (excluding London) increased by 10%, reaching 759 projects. The investment results at the local level in England are also positive, with most Local Enterprise Partnerships recording an increase in the number of investment projects in their areas. Trade and Investment Minister Lord Green noted: “The UK has received a major vote of confidence from foreign investors, confirming that the UK remains a world leading business destination. Attracting foreign investment is an important element of the UK government’s economic and growth programme, and UKTI will continue to work with companies to help create and sustain a globally attractive, highly competitive and truly international economy.” The data published by UKTI bears out trends reported by independent reports, including those published by Ernst and Young, the Financial Times and UNCTAD, whose figures all showed that the UK enjoyed a strong year for inward investment in 2012/13. UNCTAD, in particular, recently reported that despite global FDI inflows declining by 18%, FDI inflows into the UK have risen by 22%. The UK continues to attract high quality investment from around the globe, not only from our established economic partners in Europe, North America 6

and Japan, but also from key growing markets such as India and China. Investments are also made across a broad range of innovative and economically important sectors. The combination of these factors means the UK continues to be in a strong international position for attracting foreign investment. Moreover, in the 2012 Autumn Statement, UKTI was awarded an additional £70 million for 2013/14 and 2014/15 respectively, enabling the recruitment of more international trade advisers around the country, expansion of existing services including the Trade Access Programme (TAP) and the Overseas Market Introduction Service (OMIS), and support to expand the range of assistance available to UK companies through overseas British chambers of commerce. The government’s economic policy objective is to achieve ‘strong, sustainable and balanced growth that is more evenly shared across the country and between industries’. It set four ambitions in the ‘Plan for Growth’, published at Budget 2011: • To create the most competitive tax system in the G20. • To make the UK the best place in Europe to start, finance and grow a business. • To encourage investment and exports as a route to a more balanced economy. • To create a more educated workforce that is the most flexible in Europe. Work is underway across government to achieve these ambitions, including progress on more than 250 measures as part of the Growth Review. Developing an Industrial Strategy gives new impetus to this work by providing businesses, investors and the public with more clarity about the long term direction in which the government wants the economy to travel. New Push to Grow the UK’s £17.5 Billion Education Exports Industry An ambitious push to expand the UK’s education exports industry – revealed for the first time as worth £17.5 billion to the economy – was published in July. Developed in partnership with the education sector, the International Education Strategy will ensure British schools, universities, colleges and education businesses continue to stay ahead in the global education market – worth almost £3 trillion annually. It aims to secure an extra £3 billion worth of contracts for the UK’s education providers overseas, and attract almost 90,000 extra overseas university students by 2018. The strategy will also strengthen education partnerships with other countries, particularly emerging economies, expand the Chevening Schol-

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A Leading European Destination for FDI

Destination for FDI arship programme which sees future global leaders study in the UK, and encourage more UK students to spend time overseas. Business Secretary Vince Cable noted: “Overseas students make a huge contribution to Britain. They boost our economy and enhance our cultural life, which is why there is no cap on the number of legitimate students who can study here. “Thanks to our world class universities, our network of UK alumni who are now in positions of influence around the world is impressive, opening doors that would not otherwise be possible. [This] strategy will help build on this success, ensuring we continue to attract international students and promote the UK’s expertise in education.” Universities and Science Minister David Willetts added: “There are few sectors of the UK economy with the capacity to grow and generate export earnings as impressive as education. Our universities, colleges, awarding organisations and schools are recognised globally for their excellence. However, there is more that we can do to take advantage of this powerful reputation, and to seize the opportunities to stay ahead in the global race.” To capitalise on education exports, which have grown in value to the UK from £14.1 billion in 2008/09 to £17.5 billion in 2011, the new strategy will:

to study overseas. • Appoint Sir Eric Thomas, vice chancellor of Bristol University, as the new UK Education Champion to promote the UK education sector overseas and maximise commercial opportunities. • Support UK companies using innovative education technology, such as Massive Open Online Courses (MOOCs). • Double the Department for International Development’s investment in higher education partnerships, which link universities in poorer countries with other successful institutions. • Expand the Foreign and Commonwealth Office’s successful Chevening scholarships, which encourage high-fliers from around the world, some of whom have become heads of state, to study in the UK.

and to love learning is, of course, of fundamental importance in its own right. Education is also now emerging as a great global growth industry; and improving learning outcomes is now fundamental to any country’s economic growth plan. In the future, educational links will drive global growth and global relationships just as much as links in terms of trade, manufacturing and finance have done in the past. “The UK’s education sector has great brands, great products and a proud history of teaching and learning. Today’s education strategy is an important step forward in capitalising on this tremendous opportunity for the UK to play a valuable part in educating millions around the world and transforming their lives for the better.” The new Education UK Unit (www.ukti.gov.uk/ educationukunit) has already supported TQ Education, a Pearson business, to win a five-year £300 million contract for three vocational colleges in Saudi Arabia, providing skills and qualifications for over 8,000 Saudi students. Also in Saudi Arabia, the unit supported a consortium of three UK colleges led by North East Surrey College of Technology (NESCOT) to secure a £75 million contract to run a women-only vocational training institute. Education exports were worth £17.5 billion to the UK economy in 2011. This figure includes income from international students in the higher education, further education, English language and school sectors as well as from education products and services. As part of the strategy the Technology Strategy Board (TSB) and other partners will develop a more targeted support programme for educational technology innovation and its commercialisation. This will include a call for innovators to come forward with their designs to exploit modern educational technology and a new Small Business Research Initiative competition.

The UK continues to attract high quality investment, not only from Europe, North America and Japan, but also from key growing markets such as India and China.

• Launch the ‘Education is Great’ campaign to promote UK education to students in emerging economies. • Grow the number of overseas students in UK universities by up to 20% over the next five years – around an extra 90,000 students. • Appoint Emily Ashwell as the managing director of the new UKTI Education UK Unit to help UK business take advantage of high value opportunities overseas – aiming to secure contracts worth £3 billion by 2020. • Set up a new initiative to encourage UK students

The International Education Strategy follows the recent plans for agriculture, automotive, construction, aerospace and other key sectors to secure sustainable future growth in the economy. Sir Eric Thomas, the new UK Education Champion, who will also co-chair the new International Education Council alongside David Willetts, noted: “Education is arguably one of the UK’s key exports and a highly respected brand internationally – and so I am honoured to have the opportunity to contribute to its continued growth and increased profile.” John Fallon, chief executive of Pearson, said: “Training minds and teaching people how to learn

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Argentina - Issuance of Shares with a Premium

Argentina - Issuance of Shares with a Premium Maciel, Norman & Asociados

Javier Postiglione Head of the Corporate Department Tel: +54 11 4813 2044 jpostiglione@mna.com.ar www.mna.com.ar

Due to the current economic situation experienced by Argentina, the need of fresh funds by local companies to maintain their level of activity has increased. This situation has obliged companies to resort to a procedure with not too many local precedents, which is that of the fixing of a premium on the shares issued by a company as a consequence of a capital increase. Argentine Companies Law (ACL) provides that the shares issued by a corporation will always have the same value. According to Argentinean scholars, the ‘value’ that must appear on the share certificate is generally known as ‘par value’, i.e. the equivalent of a fraction of the capital stock that results from dividing the capital by the number of shares issued by the company. This par value differs from the ‘real value’ of the share. The real value of the share may be fixed, among other considerations, by: the listed price on a Stock Exchange; its net worth value; or its financial or economic value, which is fixed by taking into account the expectations of progress or the profits that the company issuing the shares may generate in future due to the imminence of a restructuring or change of management, the certain existence of negotiations aimed at the execution of contracts or mergers with other companies that reasonably will produce an increase in the companies’ profits, the development of new lines of production, etc. ACL expressly allows the issuance of shares at a higher price than the par value, by establishing a premium. Definition The Argentine Supreme Court of Justice, in re Sociedad Comercial del Plata S.A. c/Gobierno Nacional (La Ley Law Review, Volume 114, page 339), defined the premium of issuance as the difference in money between the real value of the shares, in accordance with the net worth, and the par value of same, which must be paid by the subscribers of a company’s newly-issued shares. This decision is based on the premise that the shares have a real value that is different from the par value, given that the company has a higher net worth than the summation of the par value of the shares issued and outstanding. Therefore, the issuance of new shares and the incorporation of new shareholders would diminish the real value of the shares and would adversely affect those that were shareholders before the issuance. Juridical Nature There are three different opinions on the juridical nature of this institute. Profit-premium – This position considers the issuance premium as a profit made by the company. For this position the issuance of shares with a premium represents a sale of shares made to third parties by the company that generates a profit on the basis of the original capital and, therefore, a profit that may be distributed

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among the shareholders. Capital-premium – This theory considers the issuance premium as capital. That is to say that it does not separate the premium from the par value of the share, but considers both concepts as a unit. Therefore, the premium is recorded in the ‘capital’ account. Supplementary Contribution-premium – This position adopts a practical view of the issuance premium and its accounting effects on the company taking them as two separate concepts. According to this position, the par value of a share is reflected in the ‘capital’ account, while the supplementary contribution will augment the net worth of the company when allocated to a reserve to be distributed among the shareholders. Determination of the Amount of Premium According to the ACL, the adoption of the decision in regard to the issuance of shares with a premium and its amount is the responsibility of the shareholders’ meeting resolving with the majorities provided by law, while in listed companies the amount of the premium can be delegated in the Board of Directors. There are no legal or accounting provisions setting a procedure for its determination. Given the extensive combination of factors that may be involved with regard to the current and future value of a company, it is not possible to fix a rigid procedure for the determination of the amount of the premium or a determined limit, which are left to the reasonableness of the criterion of the shareholders’ meeting in order to fix it and the response of the potential subscribers. Allocation of the Issuance Premium The ACL provides that the premium will form a special reserve which can be freely capitalised. Regarding the distribution of this reserve among the shareholders, the ACL protects in excess the creditors of the company since it makes it mandatory to follow the procedure established for the reduction of capital, granting to the creditors the power to object to the distribution of the reserve until such time as the payment of their credit is assured.

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Sector Panel

Complexities of Competition Law in Russia

The Effect of the Economy on Bankruptcy Law and Dispute Resolution in Indonesia

Anti-Monopoly Law Office advises on antitrust regulation of the pharmaceutical industry, food industry, telecommunications, insurance, finance and energy sectors. It counsels clients on issues including unfair competition, anticompetitive agreements, biddings and antitrust offences.

Aprilda Fiona & Partners, founded in 2007 by Aprilda Fiona in Jakarta, is a full service Indonesian law firm. Due to the fast growth of the firm, it opened its branch office in Batam in 2008. Since then it has continued to grow steadily in both offices.

Throughout the years, Evgeny Voevodin, the firm’s managing partner, and his team have acquired extensive experience having worked on a number of significant antitrust cases and mergers. He noted: “Our firm’s slogan is ‘100% committed to competition’. We specialise in competition law, which is at the core of our practice. “In order to provide accurate and up-to-date counsel we keep track of developments in legislation and practice in this dynamic field of law. Our current participation in a number of principal cases brings us to the forefront of forming law enforcement practice.” One of the Anti-monopoly Law Office’s most prominent projects is representing a large pharmaceutical distributor in an ongoing high profile litigation against the FAS decision on bid rigging. This litigation has spurred a debate over the standards of proof for bid rigging cases and cartels made orally. The firm is currently representing one of the companies accused of forming a cartel in the market of wholesale supply of salmon, advising them on possible ways to tackle the unfavourable decision of the FAS commission. Mr Voevodin commented on the complexities of competition law in Russia. He said: “Whether a merger is subject to prior notification to the Federal Antimonopoly Service (FAS) depends on the amount of assets and turnover of the parties, the type of transaction and whether a company is listed in the registry of dominant entities. “Failure to perform prior notification may result in an administrative fine imposed by the FAS. Also an action may be brought before court by the FAS in order to void the transaction. The court, however, only recognises a deal as void if it leads to restriction of competition. “When processing a prior notification, the FAS looks into the possible effects of the M&A transaction. Usually, the FAS will look into how the market share of the acquiring party changes – if it grows more than the 35% threshold it is likely that the FAS will select remedies, and if it exceeds 50% it may be prohibited by the FAS or structural remedies may be issued. “In order to comply with the competition law requirements, M&A transactions need to be thoroughly reviewed in order to find whether a prior notification is necessary and, if it is necessary, how to minimise the risks of the transaction being prohibited or burdened with strict remedies.” Currently a draft law, which aims to abolish post notification of M&A transactions, is before parliament. The post notification will only be possible as an option for inter-group deals. Further, amendments to a number of legislative acts touching upon the cartel issues have been drafted and are waiting to be introduced before parliament. These amendments are designed to bring criminal leniency, which applies to individuals, primarily companies’ officials, into alignment with the leniency program used in administrative cases against companies.

The firm provides legal service and representation for domestic and foreign clients in bankruptcy proceedings. It has experience in defending clients in the Commercial Court against bankruptcy claims, filing bankruptcy claims on behalf of clients and representing clients as creditors in claiming their rights on bankruptcy estate in bankruptcy proceedings. Several of its partners are also licensed curators competent to carry out management and/or settlement of bankruptcy estate in bankruptcy proceedings. Aprilda Fiona & Partners also has a competent and reliable litigation team. It provides expertise and advocacy on complex contentious matters and is experienced in representing clients in civil and criminal proceedings at both General Courts and Special Courts, as well as in alternative dispute resolutions, such as commercial arbitration proceedings, including enforcement of arbitral awards in Indonesia. Aprilda Fiona, partner, noted: “In acting for our clients, we appear before Indonesian courts on bankruptcy or insolvency cases, commercial dispute resolution, general civil and criminal cases, and other litigation cases. “Our litigation team formulates tactical strategies, assembling and analysing solutions when handling cases brought before the Indonesian courts. We also assist clients engaged in arbitration of commercial disputes in or outside of Indonesia.” Based on the Supreme Court Circular in Indonesia, currently all disputes filed in court must go through a certain stage where the parties should try to resolve the matter with mediation. But these efforts have not had a significant impact to date, which can be seen from the number of cases occurring in court. Ms Fiona added: “Clients need complete information about alternative commercial dispute resolution in Indonesia as well as the risks associated with it to be able to determine exactly what strategies need to be taken to resolve the dispute.” The advantage of ADR is speed and solutions for both parties where there is a desire to implement voluntary settlement procedures. Understandably, the global economic downturn has affected the number of cases of commercial disputes, the main cause being the lack of communication and preparation prior to the transaction. However, the number of bankruptcy filings Aprilda Fiona & Partners has been handling in recent years has been quite steady – between four and six bankruptcy cases per year. With the rapid growth of the Indonesian economy and the rise of economic activity, bankruptcy is one of the legal processes that needs a swift solution. In anticipation of this, the firm has a team of experienced bankruptcy lawyers dedicated to this practice area.

Anti-monopoly Law Office LLC

Aprilda Fiona & Partners

Evgeny Voevodin Managing Partner Tel: +7 495 626 02 26 voevodin@antimonopolylawoffice.com www.antimonopolylawoffice.com

Aprilda Fiona, SH, MH Managing Partner Tel: +6221 – 7231675 (Jakarta) / +62778 – 472599 (Batam) aprilda.fiona@afp-lawfirm.com info@afp-lawfirm.com www.afp-lawfirm.com

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Sector Panel

Arbitration Representative in Brazil Ana Tereza Basilio, Basilio Advogados partner, is a specialist in civil and commercial litigation as well as in arbitration. She has accumulated experience in the prestigious law offices of Brazil. Among them is Sergio Bermudes’ law firm, where Ms Basilio worked for 11 years. She was also a partner of Trench, Rossi e Watanabe law firm (Baker & McKenzie), being responsible in Brazil for the civil and commercial litigation area, from July 2002 to December 2005. From 2004 to 2006, Ms Basilio was the president of the Mediation and Arbitration Chamber of the Brazilian Bar Association, where she also acted as president of the Lawyer’s Association Committee, from October 2003 to December 2006. She was vice-president of the Arbitration Committee during the same period, as well as being elected chief counsellor of the Brazilian Bar Association during the three-year periods from 2000 to 2003 and 2003 to 2006. Further, she was appointed as a member of the Committee to Fight Piracy and Unfair Competition of the Federal Committee of the Brazilian Bar Association during the period of July 2005 to December 2006, and of the Special Committee to Fight Piracy and Unfair Competition of the Federal Committee of the Brazilian Lawyers Association, which she is still a member of. She is also a member of the Editorial Committee of the Arbitration and Mediation Magazine, and member of the Corporate law Committee from the Escola da Magistratura (Judge’s School) of the High Court of the State of Rio de Janeiro. Ms Basilio taught civil law in the post graduation course of the Escola Superior de Advocacia (Lawyer’s Superior School), from 1993 to 2001, and has authored several books on corporate law. She is also a professor

in Fundação Getúlio Vargas, in the Arbitration post graduation course. In December 2010, she was elected a member of the Electoral Regional Court (TRE – Tribunal Regional Eleitoral). Ms Basilio noted: “For the past few years, Brazil’s economic scenario has consistently risen and nowadays is seen as a secure choice for foreign investments. The economy’s fortification will surely increase the need for legal assistance in diverse areas, ranging from commercial to fiscal law. The Brazilian judicial system is aware that the upcoming years will surely come with a significant increase in litigation and parties will seek to have their problems solved with agility. Due to the overall swiftness of the procedures involved in its development, arbitration arises as an efficient method for conflict resolution during the promising years to come. “This is because there are several advantages in the use of arbitration – as well as being rapid, sensitive and invoking the judicial economy, it allows parties greater freedom and flexibility in setting rules that will govern the process, as well as the choice of arbitrators for the case. “Based on these existing benefits of arbitration, our law firm is aware of the increase of the demand for such procedure and, due to a team that specialises in this subject, fully trusts that it will meet the expectations of our clients.” Basilio Advogados Ana Tereza Basilio Partner Tel: +55 (21) 2277-4200 abasilio@basilioadvogados.com.br www.basilioadvogados.com.br

Employment Law in Jamaica Brocard Attorneys-at-Law provides services in all matters concerning employment law, labour & industrial relations as well as contract & commercial law, as they relate to employment law issues.

Employment law is based largely upon common law concepts of the contract of employment.

Important legislations were created to protect employees against

The firm handles union negotiations, representation of employers

unfair treatment. They include: Minimum Wage Act; Factory Act; Equal

before the Industrial Disputes Tribunal, which was established to

Act; Trade Union Act; and Employment (Termination and Redundancy

at the Ministry of Labour & Social Security and representation

hear disputes relating to rights and interest disputes for unionised workers, and rights disputes for non unionised workers.

Angela Robertson, attorney-at-law at the firm, advises on employ-

ment matters in legal and commercial transactions. She also counsels on all aspects of labour law, restructuring and entity re-engineering. Further, she advises clients in preventative measures to avoid

disputes, as well as in settling and concluding disputes should they arise.

Ms Robertson noted: “We draft employee handbooks, policies &

procedure manuals, contracts of employment and contracts for ser-

vices. We also provide seminars and in-house training on all aspects

Pay (for Men and Women) Act; Maternity Leave Act; Holiday with Pay Payments) Act.

Ms Robertson has advised on and assisted in the drafting of the Labour Code in St Lucia and amendments to Labour legislation in Jamaica.

of labour law.”

Ms Robertson has advised on and assisted in the drafting of the

Labour Code in St Lucia and amendments to Labour legislation in

Brocard Attorneys-at-Law

Federation; moreover, she has represented the Federation on the

Angela Robertson Attorney-at-Law Tel: +876-927-9062 angela@brocardlegal.com

Jamaica. She is a long-standing member of the Jamaica Employers Labour Advisory Council for several years.

Labour laws in Jamaica are divided into three broad categories:

employment law, industrial relations law and industrial safety law.

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Sector Panel

Corporate and Commercial Representative for Bahrain

Complexities of Aviation Law in Cyprus

Charles Russell LLP is a leading international firm providing comprehensive legal services for businesses, financial institutions, governments, sovereign wealth funds, families and individuals. It carries out some of the highest value transactions in the Kingdom with leading ranked partners across its core areas of service, including corporate and commercial, real estate and construction and litigation and dispute resolution.

One of the oldest law firms in Cyprus, Chr. P. Mitsides & Co LLC was established in 1923 by Christos P Mitsides. It is now in the hands of the fourth generation of lawyers in the family. The partners, as well as all associates of the firm, are members of the Cyprus Bar Association which is the regulatory body governing the licensing and operation of legal practitioners in Cyprus.

The corporate and commercial team, led by Tom Briggs, Charles Russell partner, is known for its ability to undertake complex deals, many with cross-border international dimensions. He noted: “We are widely recognised for our ability to advise on the full spectrum of corporate activity through our multi-disciplinary team of experts, including mergers & acquisitions, banking & finance (both conventional and Islamic), funds, capital markets, private equity and venture capital. “The strength of our corporate and commercial team continues to be highly ranked by the independent legal directories.” Mr Briggs has extensive experience in the region, having lived in Bahrain since 2008. He regularly contributes to conferences, seminars and publications on corporate matters affecting Bahrain and the GCC. Clients describe him as bringing strong “commercial, solution-based legal advice tailored to the local market”. The Bahrain office is fully staffed by lawyers who understand the specific requirements and nuances of each market in the region. They work tenaciously and creatively to find the best solutions for their clients and are committed to ensuring that matters proceed efficiently and cost effectively. Despite challenging economic conditions, the team continues to win instructions from key clients in Bahrain and the wider GCC across a broad range of industry sectors. Mr Briggs commented: “Since our appointment in 2009, we have been reappointed to act for the Central Bank of Bahrain as external administrator for Awal Bank, the region’s largest administration with multi-billion dollar claims, often with a corporate undertone. In relation to this role, we have recently secured one of the largest claim awards at the new Bahrain Chamber for Dispute Resolution (BCDR).” Charles Russell LLP has also seen increased corporate activity, particularly in banking and capital markets (i.e. IPOs and fundraisings). It has been instructed to provide legal services in relation to a number of M&A, banking & finance, funds, capital markets, private equity and venture capital transactions in recent months. The firm also acts for a number of property investment vehicles and developers in Bahrain and the region in relation to property acquisition, land bank development and asset purchases, often structured using corporate vehicles. In addition, Charles Russell LLP works with a number of the Kingdom’s industry regulators on a variety of legislative, contractual and licensing matters. It is retained by the sovereign wealth fund and a number of its subsidiaries in relation to corporate and commercial advice. Over the past year, the firm has considerably increased the size of its practice in the region in response to growing demand for its services.

It provides services to clients in many areas of the law, including: corporate and commercial law, company incorporation and maintenance, aviation law, carriage of goods by air, real estate, tax law, litigation and labour and employment, among others. The firm has a long standing tradition in the legal world of Cyprus, as well as in international business. It offers advice and services and has made a significant contribution in the creation of legal precedents in the field of corporate and commercial law in Cyprus. It also advises several foreign and multinational firms doing business in Cyprus along with Cypriot firms with activities abroad, assisting them in the most important jurisdictions. Chr. P. Mitsides & Co LLC is a leading firm in Cyprus on issues of aviation law and carriage by air with more than 30 years’ experience in the field. In addition to advising major European and other international airlines, the firm advises the Board of Airline Representatives in Cyprus (BARIC), an organisation which represents, promotes and protects the common interest of airlines operating to and from Cyprus. Cyprus is considered as an international maritime centre and offers significant incentives for the registration of vessels under the Cyprus flag. Some of the world’s largest international ship management companies are based in Cyprus. There is exemption from any Cyprus income and corporation tax on: the income of a ship owner of a Cyprus ship resulting from the operation of such ship in any shipping enterprise, and dividends that are paid directly or indirectly from the profits resulting from the operation of such ship. Further, no special defence contribution is payable on dividends paid by ship owning companies. No capital gains tax is imposed on the profits resulting from the sale of a Cyprus ship or from the sale or transfer of shares of a Cyprus ship owning company. There is also a reduction on tonnage tax where a Cyprus ship management company manages the ship.

Chr. P. Mitsides & Co LLC is a leading firm in Cyprus on issues of aviation law and carriage by air with more than 30 years’ experience in the field.

Charles Russell LLP

Chr. P. Mitsides & Co LLC

Tom Briggs Partner and Head of Corporate & Commercial Tel: +973 17133211 tom.briggs@charlesrussell.co.uk www.charlesrussell.me

Christos Mitsides Senior Partner Tel: +357 22458787 christos@mitsides.com www.mitsides.com

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Sector Panel

The Impact of Amendments Regarding Corporate Law in Mozambique

Ireland Awaiting Legislation Updates Regarding M&A

Couto, Graça e Associados, Limitada (CGA) covers all practice areas, focusing on corporate, finance, public and energies, investment, labour and litigation. The firm has a partner in charge of each area, although some clients and files require the simultaneous intervention from more than one area and/or partner.

Last year Dillon Eustace celebrated 20 years of practice. The firm handles everything from large multi-billion public takeover work down to angel investment in start ups.

Telmo Ferreira, CGA partner, is in charge of the firm’s corporate area, dealing with all kinds of corporate matters accompanied by a team of very dedicated lawyers. These include: incorporations, takeovers, merges and acquisitions, transfer of business, public offers, restructuring, as well everything surrounding such matters, including: corporate governance, corporate finance, due diligence, exchange control transactions, investments and a variety of contracts in which clients are involved. As a result of recent discoveries on natural resources as well as the economic crises some countries are facing, Mozambique has the attention of many investors. This has created many opportunities and lots of demand for Mozambican lawyers. Fortunately, CGA is one of the most well known legal firms in Mozambique and is therefore required to intervene in many of the occurring projects. Its corporate department has been very active and involved in many projects, such as formation of companies, transfer and acquisition of companies and assets, including business and factories, public offers of shares, concessions and sub concessions, mainly on the energy sector. However, CGA is also involved in other kind of concessions, establishment of banks, construction, governance, founding and negotiation of all necessary agreements which are subjacent to such projects, as well as other kinds of agreements, such as turnkey agreements, gas transportation agreements, among others. Mr Ferreira noted: “Changes to mining and oil laws and regulations, as well as the criminal code are being discussed, which are expected on a short/medium period. Amendments to the Mozambican Constitution are also being discussed. “The new Competition Law will have significant impact on the acquisition and concentration of business, since these transactions will be supervised by the Competition Regulatory Authority to be instituted, some commercial practices will also need to be adjusted in order not to be qualified as anti-competition practices. The changes to corporate and individual income tax codes will also have some impact, mainly on capital gains generated in Mozambique by individuals and foreign companies. “The new Insolvency Act will bring the Mozambican regime in line with the regimes being applied in most jurisdictions, since insolvency was being regulated by legal dispositions contained on the Civil Proceedings Code approved in the mid-‘60s. “Regarding the eventual changes to the Mozambican Constitution, it is not clear yet what is to be changed. Presently communities are being heard in order to obtain their sensibility. “All recent changes – and changes to come – in legislation put us under tremendous pressure since we need to continuously update ourselves on new laws and regulations. On the other hand, some constrains are sometimes felt mainly due to the fact that procedures being adopted by the authorities do not always change simultaneously with the new legal regimes.”

Lorcan Tiernan, Dillon Eustace partner and head of Corporate Department, commented: “We have a particular affinity with start ups and entrepreneurial clients as we are close enough to our own roots to remember the pressures and excitements of starting up a new business.” Mr Tiernan became a partner at Dillon Eustace in 2000, and head of the firm’s Corporate Department in 2004. His main areas of practice are: corporate, M&A, insolvency, corporate recovery and financial services. He established Dillon Eustace’s Hedge Funds Group as the market leader and is still heavily involved in the hedge fund sector, advising numerous funds, their managers and directors. He is also a member of the International Bar Association. Mr Tiernan noted: “Our M&A legislation is quite extensive with a lot of similarities to the UK, although our Takeover Rules, for instance, are in need of update. This is hopefully pretty imminent. As one would expect we see considerable influence from Europe, although on the mergers side that has probably quietened down a bit over the past couple of years. The Merger Regulations back in 2006 had a big impact on public takeovers, pushing a number of deals down the scheme of arrangement route.” Generally, the firm has seen a lot of local distressed debt work which is not too far away from your common or garden M&A transaction. It has also encountered local M&A lawyers on the other sides of these negotiations. Dillon Eustace has dealt with M&A activity involving both distressed businesses attempting to sell off non-core assets and well-funded private equity clients taking advantage of lower valuations to buy up targets. However, there has been less of this activity than expected. While there is probably still a lot of value for cash rich acquirers, financing is still tight. In Ireland there do not appear to be too many cash rich buyers out there, with the exception of the commercial property sector that is attracting significant overseas interest. In addition, there are limited targets in Ireland for the larger private equity houses. The firm’s private equity structuring teams, however, are busy with various tax structures through Ireland – there is clearly quite a bit of activity in this space around Europe. Mr Tiernan added: “M&A activity is what I would describe as ’bumpy’, with a strong finish to 2012 and a relatively quiet first quarter in 2013. Things are picking up as we speak with some merger activity, particularly on the public company side. “We are awaiting the new Takeover Rules, and also a long awaited update to our Companies Acts should be seen next year.”

Generally, the firm has seen a lot of local distressed debt work which is not too far away from your common or garden M&A transaction.

Couto, Graça e Associados, Limitada

Dillon Eustace

Telmo Ferreira Partner Tel: +258 84 333 3380 Tferreira@cga.co.mz www.cga.co.mz

Lorcan Tiernan Partner and Head of Corporate Department Tel: +3535 1 6731736 lorcan.tiernan@dilloneustace.ie www.dilloneustace.ie

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Sector Panel

International Tax Adviser in Barbados Ernst & Young (EY) Caribbean group has offices in Barbados, Curacao, Jamaica and Trinidad, and imminently in St Lucia as well. The firm provides seamless service across the region, with the ability to draw from the pool of resources available within the EY global network. The Barbados office offers tax services for Barbados and the Eastern Caribbean territories. The team is a unique combination of professionals with accounting and legal backgrounds. Dominique Pepin, Ernst & Young Services Ltd - Barbados tax partner, commented: “In our view, high quality advice must be rooted in both disciplines, as interpreting both the tax legislation and the financial information is essential.” Ms Pepin is an attorney with a master’s degree in Tax. She has addressed many international tax conferences in Barbados, Canada, France and the UK. She has more than 15 years of tax experience serving local, regional and multinational corporations. She also has extensive experience in international and regional corporate re-structuring, cross-border transactions, due diligence exercises and advising on tax audits and appeals in the Caribbean. Moreover, Ms Pepin is a member of the Quebec Bar Association, the Canadian Tax Foundation and the International Fiscal Association. She is also chair of the Tax Committee of the Barbados International Business Association. She noted: “Barbados’ corporate regime is based on the principle that domiciled and resident companies are taxed on their worldwide income, and resident non-domiciled companies are only taxed on Barbados source income. The tax rate is 25% and capital gains are not subject to tax. A rebate of tax is available for foreign income remitted to Barbados, which can reduce the tax rate as low as 1.75%. Barbados also has special corporate vehicles for international business activities where the tax rate varies between 2.5% to

0.25%. Foreign currency reserves are of the upmost importance for a small economy such as Barbados, where imports are critical and, as a result, our tax policies reflect this need for foreign currency.” The country’s tax regime provides various opportunities to investors. Barbados also has an extensive tax treaty network, which includes agreements with Canada, the US, the UK, China, Venezuela and Panama, among others. The combination of these tax considerations, coupled with daily flights to major cities such as New York, Toronto, London and Miami, as well as an educated workforce to employ within your business, makes Barbados a very attractive financial centre. Ms Pepin added: “Barbados, with its UK heritage, is not a tax haven but a financial centre built on the rule of law and transparency. Barbados has a long history of effective exchange of information, and is committed to retain its irreproachable reputation by making changes to its legislation to remain compliant with international rules. “It is also interesting to note that the 2012 Corruption Perceptions Index ranks Barbados 15 as a less corrupted country, before the United States (19), the United Kingdom (17) and France (22).”

Ernst & Young Services Ltd - Barbados Dominique Pepin Tax Partner Tel: +1 246 430-3812 dominique.pepin@bb.ey.com www.ey.com

Tax Law Experts in Brazil Ernst & Young (E&Y) is a global leader in assurance, tax, transaction and advisory services. Worldwide, it has 152,000 staff, united by their shared values and an unwavering commitment to quality. The firm assists its clients in navigating the global tax environment. The tax and business environments have undergone dramatic transformations – and the pace of change and complexity continue to increase. The lawyers at E&Y offer assistance in dealing with critical aspects of the current tax environment, such as: tributary, tax policy and conflict resolution, transactional taxes, transfer pricing and tax and supply chain (TESCM), as well as indirect taxes. E&Y has one of the most articulate tax practices in the world, with a network of 28,000 professionals in more than 120 countries, dedicated to establishing an exceptional standard of customer service. The firm’s tax practice is organised into geographic regions and service lines in order to provide integrated services to its clients. Its professionals, along with its global resources, can help clients develop and execute business strategies quickly and effectively, with solid assigning responsibilities and governance. The firm combines technical expertise on the location of each country with regional and global perspectives on the latest developments in policy, legislation and tax administration. The senior level professionals in the area of tax, who act in the form of rotation in major business centres around the world, have an understanding of the subtleties of various tax issues, the complexities of interaction between tax systems and the different corporate cultures. Romero Tavares, E&Y Brazil partner and the head of tax policy & tax controversy, is the national tax market leader who oversees all of the firm’s tax-related client service and entrepreneurial activity. He is in charge of

regional (Latin or South America) and national (Brazilian) client service to key multinational accounts, particularly in the automotive, pharmaceutical and consumer products industries. In addition, Mr Tavares is the former head of Corporate/Business Tax Advisory Services in Brazil (2007 to 2011), a key service line of the overall tax practice of E&Y Brazil. He was also the South America tax market leader from 2007 to 2009, overseeing client service to all regional priority accounts. E&Y Brazil’s tax practice includes more than 1,000 tax professionals in 13 offices nationwide. Further, Mr Tavares is on the advisory board for Grupo de Estudos Tributários Aplicados (GETAP) – a non-profit association of large Brazilian corporations and large Brazilian subsidiaries of non-Brazilian corporations, which aims to improve the Brazilian tax system and the Brazilian economy through collaboration with the Brazilian authorities. The tax professionals at E&Y also work in partnership with other E&Y professionals to provide integrated services in areas ranging from process improvement and optimisation of the supply chain to accounting and financial reporting. Some are leaders in all tax matters, including corporate taxes, indirect taxes, international taxes, taxes on transactions and matters relating to taxes from individuals. Ernst & Young Brazil Romero Tavares Partner Tel: +55 11 2573 3444 romero.tavares@br.ey.com www.ey.com Sept 2013 Corporate INTL 13

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Sector Panel

Recent Developments Regarding Energy Law in Greece Gerassimou & Partners Law Office is located in Piraeus, Greece. The firm is dedicated to providing a professional, responsive, personalised and costeffective range of services to clients in Greece and abroad.

This would involve the voluntarily renegotiation of such agreements. As a result of the reduction of the FITs and subsequent changes in producers’ income, the Ministry of Energy and Greek banks are working closely to ease the terms of bank loans used by RES producers for their projects, by It has vast experience in renewable energy matters in Greece, particularly the extending loan durations and reducing monthly payments. installation of photovoltaic parks, windmills and hydro electric projects, as The FITs for non-photovoltaics RES projects will also be linked to the projwell as geothermical projects on Greek islands and biomass projects, advisect’s connection date – excluding the connection of wind and hydro projects. ing legally and supporting local and foreign clients and effecting the due These FITs will no longer be adjusted annually on the consumer price index. diligence aspects of the projects from the very initial steps until the final proThe same exists in the biomass projects, and moreover, these projects fall duction stages. The firm currently represents, and has in the past represented, within the scope of the Development Law and can use a State subsidy for up major Greek and foreign companies of the energy market regarding their to 40% of the cost of construction. renewable energy projects in Greece. The latest and the forthcoming legislation in the area of the renewable Gerassimou & Partners Law Office provides extensive and multilateral le- energy in Greece will rationalise the system and the energy distribution netgal and consulting services regarding the renewable energy projects including work. Also, it will grant significant opportunities to the investors due to the the formation of a project, the granting of all regulatory permits, the financing stability and the clearance of the energy market in Greece and the potential of the project, the land acquisition, the dealing with all the Greek Administra- of the use of the development legislation which grants, with State subsidies, tive Authorities, supporting and legal advising regarding contractual and the possible investments in the field of renewable energy. It is something that litigation matters. undoubtedly shall give new impulse and motivation for the continuation Further to its extensive involvement to the renewable energy sector in and the expansion of the renewable energy market in Greece. Greece, the firm has developed close business relationships with many of Gerassimou & Partners Law Office the world’s leading law firms and other professionals in the international transport, corporate, commercial and insurance business. It invests significant Nicholas G Gerassimou resources to research bibliography, analysis of new laws, regulations and inPartner ternational conventions affecting the business environment providing always Tel: +30 210 428 57 22 high quality and personalised legal services to its clients. info@gerassimou.gr Regarding the latest developments in the renewable energy sector in Greece, www.gerassimou.gr the competent Ministry of Energy is considering extending the duration of power purchase agreements, while reducing the respective feed-in tariffs (FITs).

IP Law in Mexico and its Involvement in International Business Goodrich, Riquelme y Asociados, A.C. has a long tradition of standing alongside its clients when helping them make their business objectives a reality. With more than 75 years of experience, the firm prides itself in knowing what drives key industry sectors and is able to provide the best creative and cost-effective business solutions. By using a cross practice among service areas and industry teams, Goodrich, Riquelme’s carefully trained lawyers achieve an innovative approach towards the rendering of contemporary legal services tailored to the demanding business community worldwide. The firm has a professional and administrative staff of more than 250. Enrique A Diaz, Goodrich, Riquelme senior partner and head of the Industrial and Intellectual Property Department, joined the firm in 1998, graduated law school in 2001 and, by 2010, became the youngest lawyer to have ever been made senior partner in the firm’s history. His practice areas include: industrial property rights; intellectual property enforcement, infringement and licensing; intellectual property litigation and protection; intellectual property and international licensing; Internet intellectual property; software licensing; copyright law, licensing, trademark & patent infringement and litigation; domain name disputes; trademark & patent filing and prosecution in Mexico and Latin American countries; trade names and trade dress protection; and sports and entertainment law. In addition, he is currently a foreign expert on Latin American intellectual property, managing the prosecution of more than 3500 trademarks and more than 1000 patents per year. His portfolio includes clients such as Alticor, Inc., Halliburton Company and W.M. Wrigley Jr, Company.

The majority of Goodrich, Riquelme’s intellectual property work is for non-Mexican companies conducting business in Mexico. The firm’s attorneys, engineers and computer specialists help adapt foreign patent specifications and claims to Mexican law, secure patent inventions and trademark registration, and maintain them by handling the necessary renewals. Its computer system, which is linked to the Mexican Patent and Trademark Department, permits it to provide clients with a timely notice of their intellectual property matters. The firm also performs trademark searches and prepares and registers licence agreements. Moreover, due to recent changes in technology, the firm is increasingly being called on for assistance in licensing and litigation relating to computer software as well as for complex licensing negotiations and settlements involving patents, trademarks and copyrights. Its lawyers handle litigation for clients in all areas such as licensing, patent and trademark infringement, including counterfeiting, unfair competition cases, pirating and unlawful duplication of computer software. Entertainment and sport deals are currently an active area for Goodrich, Riquelme.

Goodrich, Riquelme y Asociados, A.C. Enrique Díaz Senior Partner Tel: +52 (55) 5525 1422 ediaz@goodrichriquelme.com www.goodrichriquelme.com

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Sector Panel

Dispute Resolution Law in the Province of Manitoba, Canada

IP Litigation Procedures in Japan

Hill Sokalski Walsh Trippier LLP, founded in 1988, is a boutique litigation firm in Winnipeg, Manitoba, offering litigation services for local, national and international clients. In 2013, Benchmark Canada recognised the firm as the top litigation firm in Manitoba, and recognised the partners Sherri Walsh and Dave Hill as the top female and male litigators in the province.

Kaneko & Iwamatsu was founded in 1957 by Hajime Kaneko, a former professor of civil procedure at the University of Tokyo, and Saburo Iwamatsu, former Justice of the Supreme Court of Japan. Since then, the firm has been focusing its practice on technical litigation, including intellectual property litigation. In particular, since its establishment the firm has been constantly involved in various kinds of patent litigation in Japan.

Dave Hill, Hill Sokalski Walsh Trippier LLP partner, noted: “Our firm is unique in that we act for and against plaintiffs, for and against insurance companies and corporations, are involved in human rights cases and other public interest matters, do work for the federal and provincial governments regardless of which party is in power, and are generally regarded by our peers as the top litigation/advocacy firm in Manitoba.” The firm handles all forms of advocacy, including civil litigation through the court system, arbitrations and mediations. It has dealt with more mediations than any other firm in Winnipeg since the Court of Queen’s Bench allowed mediations in 1997. Its record of successful mediations distinguishes the firm from others in its jurisdiction. The Court of Queen’s Bench Judges offer a mediation service which is not mandatory but which is consensual. This is having a significant impact on all levels of litigation and has reduced the number of trials actually going to court significantly since the mediation service came into effect in 1997. The court itself can order arbitration as a means of dispute resolution in any kind of commercial dispute. Mr Hill added: “The main advantages to ADR are expedience, privacy, cost savings and, most importantly, choosing your own form of decision maker or mediator. “The client, in seeking advice on a commercial dispute, needs a firm that has a reputation in the field, is prepared to go to court if absolutely necessary, but always looks for practical solutions such as other forms of dispute resolution. The biggest single factor that a client should seek is knowledge that the firm and its lawyers have experience in commercial disputes.” Hill Sokalski Walsh Trippier LLP has seen an increase in commercial disputes in litigation but not due to the global economic downturn. In the Province of Manitoba, where it is still advancing economically and did not suffer much, if at all, from the global economic downturn, the types of commercial litigation, arbitrations and mediations are increasing. Usually that increase would be seen if there was an economic downturn as was experienced in the early 1980s and the early 1990s, but at this particular time there is no such downturn.

The main advantages to ADR are expedience, privacy, cost savings and, most importantly, choosing your own form of decision maker or mediator.

Shinichi Murata, Kaneko & Iwamatsu partner, has a high level of experience in patent litigations over various technologies, including telecommunication technology, pharmaceuticals, golf balls, non-contact transmission devices, lithium Ion chargeable batteries, retro-reflective sheet, DRAM, electrochemiluminescent technology, adhesive and resins. He has worked for foreign clients as well as Japanese clients on IP matters. Mr Murata worked with Finnegan, Henderson, Farabow and Garrett & Dunner at their offices in Washington, DC from 2001 to 2003, after completing an LL.M. in Intellectual Property Law at the George Washington University (2001). He has connections with many leading IP law firms worldwide and can refer his clients to appropriate foreign counsels as well as assist his foreign clients to understand procedures of IP litigation in Japan. He noted: “Intellectual property is growing in importance for Japanese companies because it is difficult to compete with other Asian companies on price. “The average time from filing to termination in the first instance in intellectual property related cases in Japan is a little longer than a year, while it was more than two years around 15 years ago. “Also, under Japanese Patent Acts, it is possible for an accused infringer to assert the invalidity of the patent at issue in patent infringement litigation. Thus, thorough review of the claim and the prosecution history and analysis of the accused product before filing a suit is necessary – and prior art research is very important to prepare for possible invalidity defence, especially under the current rapid patent litigation procedure.” There are two phases in the practice of patent litigation in Japan. At the first phase, parties focus on discussions about infringement issues and invalidity issues. At the second phase, parties focus on discussions about damages issues. If the court has found that there is no infringement or the patent is invalid, the court does not commence the second phase, and will close the hearing or suggest settlement for the parties. This practice could encourage the parties, especially the losing party, to proceed with the settlement of the case, and avoid unnecessary discussions about damages issues, therefore contributing to the efficient and speedy resolution of the patent disputes. Mr Murata added: “Judges generally take an active role in suggesting the possibility or the terms of a settlement at any stage between filing and the final judgement. A relationship of mutual trust between judges and legal counsels is important, and Kaneko & Iwamatsu has led many IP litigation cases to favourable settlements for its clients.”

Hill Sokalski Walsh Trippier LLP

Kaneko & Iwamatsu

Dave Hill Partner Tel: +1 204-943-6740 x222 dhill@hillco.mb.ca www.hillco.mb.ca

Shinichi Murata Partner Tel: +81-3-6206-1303 murata@kanekoiwamatsu.com www.kanekoiwamatsu.com

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Class Actions Adviser for Canada Corporate Law Representative in Iran Kirk M Baert, Koskie Minsky LLP partner, is head of the firm’s class actions group. His practice focuses on class proceeding and has been recognised by Lexpert as a leading Canadian practitioner in the field of class action litigation. He was called to the Bar in 1990, in Ontario.

Law Offices M. Ebadi Tabrizi & Associates, established in 1976, is an international law firm based in Tehran, Iran. Its multi-skilled legal team includes six partners and seven associates, each excelling in their specialised areas.

Mr Baert has appeared in courts across the country, including the Ontario Court of Appeal, Quebec Court of Appeal, Newfoundland Court of Appeal and the Supreme Court of Canada, on matters dealing with all aspects of class action litigation. He was counsel for the plaintiff in Pearson v. Inco Ltd., the first common law environmental class action to be certified in Canada. He was also counsel for the plaintiff in Cloud v. Canada, the first Indian residential schools class action certified in Canada. A $4 billion pan-Canadian settlement was reached in the case in 2007. Mr Baert was designated as lead counsel in Canada to handle the nine settlement approval hearings across the country. The settlement was ultimately approved by all nine provincial and territorial courts involved. The settlement is proceeding and more than 90,000 class members have made claims. Mr Baert is currently counsel for the plaintiffs in Dolmage v. Ontario, Clarke v. Ontario and Bechard v. Ontario. Each of these cases seeks to hold the provincial government liable for abuses at the governmentrun institutions for the cognitively and developmentally challenged. He is also counsel for the plaintiff in Seed v. Ontario, a case which alleges that students at a government-run school for the blind were abused. Further, Mr Baert is counsel for the plaintiffs in Taylor v. Canada, which broke new ground in a 2012 Court of Appeal on the issue of when federal government regulators can be liable for injuries sustained by users of a defective product that the government failed to prevent from coming on the market. Mr Baert was an instructor in the Ontario Bar Admission Course in both the advocacy and civil procedure sections, from 1995 to 2001. He has also been a guest instructor in the Osgoode Hall Intensive Trial Advocacy Workshop. For 10 years, he taught a course in class actions with Professor Garry Watson at Osgoode Hall Law School. He has been on the Planning Committee for the Osgoode Hall Law School National Symposium on class actions since 2001. He is also a regular speaker and author of papers for The Canadian Institute, CBA, OBA, LSUC and the Advocates’ Society on class actions, complex litigation and other matters. Further, Mr Baert is a fellow of the Litigation Counsel of America, a trial lawyer honorary society composed of less than one-half of 1% of American lawyers. He is a member of the following associations: Ontario Trial Lawyers Association, Law Society of Upper Canada, Canadian Bar Association, Advocates’ Society, American Association for Justice, American Bar Association, Litigation Counsel of America, National Lawyers Guild and International Bar Association.

The firm provides full legal services in various languages, including Persian, English and Arabic. Its services cover all the areas of corporate and commercial law, foreign investment, joint ventures, patents, trade marks, industrial designs and prosecution, litigation, dispute resolution and arbitration, agency law and distribution, international trade law, shipping, insurance, banking and financial services law, securities, insolvency and restructuring, cross-border commercial transactions, energy, aviation, construction and international projects laws, mergers and acquisitions, labour law and taxation. Mahmoud Ebadi Tabrizi, Law Offices M. Ebadi Tabrizi & Associates senior partner, specialises in commercial law, corporate law and intellectual property. He is an attorney-at-law who was admitted to the Central Bar of Iran May 29, 1976. He is a member of the Bar Associations of Iran and the Committee for Corporate Law of Tehran Bar Association. Further, Mr Tabrizi is a professional litigator, well known by the local courts. He is a trusted attorney for numerous judges in regards to corporate & patent law. He taught corporate and IP law at Azad University of Tabriz between 1986 and 1987. He is also the country expert for the International Distribution Institute, based in Italy. Law Offices M. Ebadi Tabrizi & Associates’ clients include a wide range of local and multinational corporations, financial institutions and individuals. Four decades of practice involving complex multi-jurisdictional cases in Iran means that the firm’s experience and expertise directly benefits the clients’ businesses. In all fields of activity, the firm is more than capable of helping their businesses flourish and solve any issues that they might face. Law Offices M. Ebadi Tabrizi & Associates is the local partner of the World Bank in Iran due to its annual contribution to different fields of Iranian laws. It is also a member of the Central Iranian Bar Association (CIBA), Iran Bar Association Union (IBAU), INTA and IBA and several international legal communities. During its years of practice, the firm has been at the leading edge of Iranian laws, working on many of the most prominent and high profile cases in Iran. It has had close cooperation with several foreign law firms, such as Freshfields, TaylorWessing, Kummerlien, Simon & Partner, Reed Smith, Bird & Bird and Weathers LLC, among others.

Four decades of practice involving complex multi-jurisdictional cases in Iran means that the firm’s experience and expertise directly benefits the clients’ businesses.

Koskie Minsky LLP

Law Offices M. Ebadi Tabrizi & Associates

Kirk M. Baert Partner Tel: +1 416-595-2117 kbaert@kmlaw.ca www.koskieminsky.com / www.kmlaw.ca

Mahmoud Tabrizi Partner / Attorney-at-Law Tel: +98 21 8890 51 79 tabrizi@dpimail.net www.e-tabrizi.com

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Developments Regarding International Law in Cyprus Michael Kyprianou and Co. LLC is one of the largest law firms in Cyprus, recruiting more than 30 lawyers and having offices in three of the main cities of Cyprus (Nicosia, Limassol and Paphos), as well as in Athens and Valletta. Its size and leading experts in the various fields of corporate and commercial law gives the firm the breadth to handle complex international cases involving different legal fields. Menelaos Kyprianou, Michael Kyprianou and Co. LLC managing partner, commented: “In the course of advising a foreign bank on the terms of a substantial facility agreement an injunction was issued by a Cyprus court by a third party forbidding the bank from providing the facility. Our firm had the capacity to provide comprehensive assistance covering both the facility agreement and the litigation issues that had arisen.” The firm’s network of high calibre international contacts allows it to handle complex cross-border cases. For example, during arbitration before the London Court of International Arbitration concerning the Kazakhstan port authorities, the firm coordinated an action involving a distinguished London set of chambers and leading law firms from Kazakhstan and Russia. The challenges, which are present in all international cases of this nature, were choosing the right firms to work with, controlling costs, meeting time restrictions and ensuring effective communication between the client and all the lawyers involved. It is Michael Kyprianou and Co.’s priority to maintain contacts with the best firms around the globe. Recently it was invited to join the International Fraud Group, which is a select group of leading international law firms specialising in corporate cross-border litigation cases where asset tracing, bank disclosure orders and freezing injunctions are needed.

Speaking of significant developments regarding international law, Mr Kyprianou noted: “The agreement of 25th March 2013, reached between Cyprus and the Eurogroup for the provision of financial assistance to the former, has led to the bail in of two of Cyprus’ major banks. Litigation has followed by unsecured depositors of these banks. In this context the legality of the ‘Eurogroup agreements’, as they are called, will be judicially examined by local courts and possibly by the ECJ or even, eventually, by the ECHR. “In theory ‘the Eurogroup’ is nothing more than an informal meeting of the Euro area’s finance ministers in accordance with Protocol 14 of the Lisbon Treaty – it has no law making powers. Yet, ‘Eurogroup agreements’ have very real effects on the ground level, ultimately essentially dictating whether or not a Eurozone country will be granted financial aid and under what conditions – something which raises serious questions of accountability. “Another interesting aspect is the applicability of bilateral treaties Cyprus has entered into for the protection of foreign investments. Claims have already been submitted on the basis of these and it will be interesting to see how international arbitral tribunals – where, most likely, these cases will eventually be tried – will interpret these treaties and apply them to the facts relating to the bail in of the Cyprus banks.” Michael Kyprianou and Co. LLC Menelaos Kyprianou Managing Partner Tel: +357-22447777 menelaos@kyprianou.com.cy www.kyprianou.com.cy

IP in New Zealand Minter Ellison Rudd Watts has a dedicated intellectual property practice and a leading team. The firm advises on all aspects of IP work, except patent registration. It is best known for assisting with the commercialisation of IP (structuring, licensing, using IP as security, IP financing and effective tax structures), branding strategies, trade mark registration and portfolio management. The firm also handles IP aspects of major corporate transactions, including IP due diligence, preparing practical commercial due diligence reports, as well as dealing with IP in commercial transactions, including negotiating IP aspects of sale and purchase contracts and licensing resulting from the transaction – mergers, acquisitions, asset transfers, licensing, joint ventures, development agreements and capital raisings. Further, IP forms a significant part of Minter Ellison Rudd Watts’ sports law practice. The firm deals with IP relating to major sporting events. In addition, it also deals with IP dispute resolution and litigation, including trade mark, copyright, Fair Trading Act, passing-off and confidential information, as well as marketing and advertising, and film related advisory work. Christopher Young, Minter Ellison Rudd Watts partner, commented: “Our IP team is differentiated as our firm has a specialist IP practice within a large New Zealand law firm that is part of an Australasian / international practice. We have a wide global network of trade mark associates. Through our connections we can assist clients to implement an effective and efficient international registration/enforcement strategy for IP.” Mr Young actively advises on a wide range of IP work and has been actively involved in IPSANZ, LESANZ, and INTA for many years (currently on INTA’s Famous Marks Committee). He has been consistently named as a leading individual in legal guides including Chambers Global, Chambers Asia Pacific, World Trademark Review (WTR) 1000 and Asia Pacific Legal 500.

He noted: “IP is often an important asset both strategically and in a value context in corporate transactions. All main intellectual property rights are fully protected in New Zealand. Copyright can be used to protect industrial designs, for example in plant and equipment, for a limited period of 16 years. “We work closely with other specialists in our firm, providing comprehensive and pragmatic IP advice including on the IP aspects of corporate structuring, capital raising, taxation, human resources, securitisation, transactions, commercial contracts, compliance, dispute resolution and litigation. “Our full service IP practice can provide practical advice and strategy on IP throughout its lifecycle. We advise on the creation, acquisition, commercialisation, protection and enforcement of IP rights. It is often important to take a pragmatic approach and focus protection on key IP assets – for example, those important strategically or that drive value and revenue.” New Zealand has recently acceded to the Madrid Protocol. From December 10, 2012 trade mark applicants can designate New Zealand in their international trade mark applications, and New Zealand businesses will be able to file international trade mark applications. Mr Young added: “We can assist overseas practitioners to assess and overcome objections raised by the New Zealand Intellectual Property Office.”

Minter Ellison Rudd Watts Christopher Young Partner Tel: +64 9 353 9910 christopher.young@minterellison.co.nz www.minterellison.co.nz

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Moral Harassment (Mobbing) in the Workplace: Between a Rock and a Hard Place for Employees and Employers NautaDutilh Avocats Luxembourg provides a full spectrum of individual and collective labour law expertise. It guides and advises clients through the employee/employer relationship aspects of major corporate operations, such as mergers, acquisitions, IPOs, restructurings, management buy-outs and outsourcing. The firm works in close partnership with its clients, advising them on recruitment issues, redundancy plans, pensions, health and safety and insolvency procedures, as well as assisting them in trade union, ministerial and administrative relations. It also has wide experience in mass redundancy and individual dismissals, employment agreements and managerial disputes. Luxembourg labour legislation provides legal definitions, legal grounds and legal means for victims of various forms of discrimination in the workplace – sexual, religious and ethnic – as well as certain forms of workplace harassment, notably on sexual grounds. Such legislation serves to provide employers, employees and the courts with a legal definition of the issue, legal grounds on which to bring a claim and legal means both for employers to guard against claims and for employees to bring claims to foreseeable outcomes. Luxembourg is currently bereft of a law specifically relating to moral harassment and bullying in the workplace (referred to in Luxembourg as ‘mobbing’). In 2009, the main Luxembourgish employee and employer representatives reached an agreement relating to harassment and violence in the workplace, which was declared as generally binding to all employers in Luxembourg by means of regulation dated 15 December, 2009. However, although the regulation provides a legal definition for mobbing, the guidelines provided have proved insufficient to prevent and facilitate dealing with mobbing for employers or employees, especially as the regulation fails to provide either a legal basis or legal means for addressing claims. Louisa Silcox, NautaDutilh Avocats Luxembourg labour law and immigration lawyer, explained the advice given to employers regarding mobbing.

She said: “We advise drawing up an internal policy for the prevention of all forms of harassment and violence in the workplace, setting out and informing all personnel of the steps taken by the employer to prevent harassment and the procedure to be followed should an issue arise.” Ms Silcox has developed a strong crossover specialty in individual and collective labour law and immigration, setting up a corporate sub-department in the Luxembourg branch of NautaDutilh Avocats Luxembourg. She has acted for both employers and employees in a wide sphere of employment issues, including mobbing. Ms Silcox noted: “When presented with mobbing cases, Luxembourg courts generally arbitrate on the basis of non-labour specific legislation, in particular article 1134 of the Luxembourg Civil Code. However, on such general legal basis and in the absence of legal means specific to mobbing, the burden of proof lies on the employee who is responsible for not only proving the material existence of harassment, but that the resulting damage is intrinsically linked to the alleged harassment. “Analysis of employers’ mobbing prevention and defence mechanisms is highly dependent on the Luxembourg judges’ interpretation of the facts. This renders the prevention of mobbing, the management of claims and their outcome particularly complex and unpredictable. We advise obtaining specialised and comprehensive legal assistance at all stages.” NautaDutilh Avocats Luxembourg Louisa Silcox Lawyer Specialised in Labour Law and Immigration Tel: +352 26 12 29 28 louisa.silcox@nautadutilh.com www.nautadutilh.com

The Long-Awaited Arrival of the E-archiving Law in Luxembourg NautaDutilh is an international law firm with offices in Amsterdam, Brussels, London, Luxembourg, New York and Rotterdam. With more than 400 lawyers, notaries and tax advisers, it is one of the largest law firms in the Benelux region. NautaDutilh is a full service business law firm with a strong client portfolio in the finance and the fast moving consumer goods sectors. It has also a niche expertise in the field of intellectual property and IT. Vincent Wellens, head of the IP & ICT practice within NautaDutilh Avocats Luxembourg, represents major international clients on IP, trade practices, ecommerce, e-archiving and data protection issues in the consumer goods and IT sectors. He is admitted to both the Luxembourg and the Brussels bar and has practised IP/ICT and competition law at other first-tier Luxembourg and Brussels law firms. Mr Wellens noted: “E-archiving has several benefits – the electronic storage of a critical mass of documents will have a lower cost than the storage of paper documents; employees or authorised persons can find documents more easily without even leaving their desk; and e-archived files can be more easily secured by passwords, etc.” “In order to implement an e-archiving project, a multitude of laws and regulations must be taken into account in order to classify and archive business documents correctly. In the last month NautaDutilh Avocats Luxembourg worked intensively on a chart setting forth the conservation rules per type of document. “ Several notorious e-archiving firms and consultancy firms have contacted NautaDutilh Avocats Luxembourg in order to assist them with the legal aspects of e-archiving. Mr Wellens also gives in-house trainings within large corporations on the subject. On February 13, 2013, the Luxembourg government submitted the longawaited e-archiving act and accompanying grand ducal regulation (the Proposal) to the Luxembourg Parliament. The Proposal will bring about

several changes. An electronic (or microform) copy of written agreements within the meaning of the Civil Code and commercial documents, which must be stored according to the Commercial Code, will be deemed equivalent to the original even if the paper version still exists. The conditions of equivalence will guarantee the authenticity and integrity of the copy but will be neutral from a technological perspective and in line with current archiving practices. In addition, the burden of proof of the compliance with these conditions will be shifted for undertakings that wish to dematerialise and store their business documents, including contracts, by electronic means provided they use a certified dematerialisation and conservation service provider (PSDC). Further, two new categories of ‘support’ financial services professionals will be introduced. Mr Wellens commented: “The law proposal on e-archiving has already created a real demand for advice on Luxembourg document conservation rules. It is expected that the demand will only increase once the proposal is definitively adopted as a law, most probably in autumn of this year. Future work will not only focus on the classification of documents according to conservation rules, but is also expected to deal with contractual arrangements with e-archiving solution providers and other subcontractors involved, such as hosting service providers.” NautaDutilh Avocats Luxembourg Vincent Wellens Head of Intellectual Property & Technology, Media and Telecom Tel: +352 26 12 29 34 vincent.wellens@nautadutilh.com www.nautadutilh.com

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Changes and Developments Regarding Company Law in Luxembourg NautaDutilh Avocats Luxembourg is a recognised player in the Luxembourg legal market. With its 35 lawyers, it serves a wide range of institutional clients. This mainly includes financial institutions, asset managers, large and mid-sized corporates, private equity firms, funds sponsors and IT companies in all aspects of corporate law, with a particular focus on mergers and acquisitions, joint ventures and international corporate restructurings. Romain Sabatier, NautaDutilh Avocats Luxembourg senior associate, provides corporate, securities and structuring advice on financial restructuring matters, typically for hedge fund, private equity firm and financial institution clients. His practice also involves traditional M&A work, typically involving middlemarket sized private companies. Mr Sabatier has experience working in a wide variety of jurisdictions, including Belgium, the Netherlands, France, England, the United States and, more recently, Brazil. He noted: “Luxembourg has a legal and company law environment that is largely determined by the numerous European Directives and Regulations. However, when implementing these standards into domestic law, the Luxembourg legislator has competently taken advantage of the margins for manoeuvre available within the directives to create a legal environment that promotes the international character of the Luxembourg financial centre. Therefore, the country benefits from a very stable and flexible corporate law environment, punctually enhanced by new statutes and regulations. In doing so, the main goal of the Luxembourg legislator is to ensure the stability of the financial centre, while also ensuring an optimal level of protection for investors.” NautaDutilh Avocats Luxembourg regularly sends newsletters to its clients on new developments, and organises breakfast seminars on specific topics of interest to them. Mr Sabatier commented: “The most recent and significant development in Luxembourg is the passing of the Act of 12 July 2013 implementing Directive 2/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers. The new Act introduces significant changes to the Luxembourg legal environment – the modernisation of the exist-

ing common limited partnership (société en commandite simple – SCS) regime in Luxembourg, improvements to the widely used partnership limited by shares (société en commandite par actions – SCA) and the introduction of a brand new special limited partnership regime (société en commandite spéciale – SCSp). “The main change is that the SCSp does not have legal personality and is very flexible in terms of structuring, including with respect to its governance – while the SCA and the SCS have legal personality. Although Luxembourg already offers to investors the common contractual fund (fonds commun de placement), which shares some features with partnership structures, investors have always favoured the English partnership model which was not available in Luxembourg. This is now fixed as the new SCSp is designed to resemble, as closely as possible, the English limited partnership regime, allowing flexibility and broad freedom of organisation within an efficient contractual structure. “This new piece of legislation will undoubtedly bolster the use of partnership structures under the SICAR and SIF regimes, and will consolidate Luxembourg’s position as a leading jurisdiction for regulated alternative investment funds.” NautaDutilh Avocats Luxembourg Romain Sabatier Senior Associate Tel: +352 26 12 29 47 romain.sabatier@nautadutilh.com www.nautadutilh.com

There’s more than meets the eye At NautaDutilh, we look beyond the obvious. Adding value is what drives us. We come up with winning ideas, precise answers and efficient solutions. NautaDutilh Avocats Luxembourg is a recognised player in the Luxembourg market. We provide high-quality legal advice and services. Viewing matters from the unexpected perspective. That’s how we keep our edge.

Banking Finance Corporate Commercial Litigation Tax Funds Intellectual Property

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The Impact of Amendments Regarding IP Law on Japanese Companies

OHNO & PARTNERS Kan Otani Associate, Patent Attorney Tel: +81-3-5218-2453 otanik@oslaw.org www.oslaw.org/en/profile/format/26.html

OHNO & PARTNERS was established on May 1, 2000 as a boutique firm in intellectual property. In 2013, it was selected by Corporate INTL Legal Awards and Managing IP Global Awards as the law firm of the year in Japan for its IP litigation practice. The firm has represented many difficult cases intractable for other firms, particularly on cutting-edge technologies, such as IT, communication, semiconductor technology, biotechnology, nanotechnology and other cross-industrial technologies. It also actively handles unsolved legal issues and, as a result, has established new case laws before the Supreme Court. In Japan, there are two qualification systems for professionals who handle legal issues concerning intellectual property, i.e., attorney-at-law and patent attorney. Formerly, it was common that a client asks a patent firm run by patent attorneys when establishing intellectual property rights such as patents, and asks a law firm run by attorneys-at-law for enforcement. Kan Otani, OHNO & PARTNERS’ patent attorney, noted: “In Japan, it seems to us that there is a barrier between attorneys-at-law and patent attorneys caused by the differences in the qualification systems, so that the cooperation between them is not necessarily going well. We eliminate such barriers and offer total solution service for all IP issues under the tight cooperation between attorneys-at-law and patent attorneys. “For example, we can tailor claims of pending applications to cover the products of an opposing party at the same time we negotiate or litigation with them. Also, we can file a trial for correction of patented claims in parallel with an ongoing negotiation or litigation. In addition, as a firm with rich experience in IP disputes including patents and trademarks, OHNO & PARTNERS understands the potential problems that might arise later, and is well positioned to help global clients establish their IP rights in Japan as part of their global IP portfolio.” Mr Otani handles patent disputes and IP strategy counsel for start-ups. He represents clients, primarily in the ICT area as well as in the medical device area,

in their patent disputes including litigations and licence negotiations. He added: “We are engaged in a couple of series of intense multinational parallel litigations that are either technologically or theoretically challenging. With respect to IP strategy counsel for start-ups, I advise my clients on wide range of aspects of IP related to their start-up business. It tends to be a mixture of patent, design, trademark and copyright depending on the nature of the business at issue. The situation surrounding a start-up can change rapidly, and adapting to such change to provide the optimum counsel is my major concern.” In Japan, with respect to patents, designs, trademarks, and copyrights, it is fair to say that the IP system is functioning. Recent amendments have taken place in order to further improve the system. Japan’s Copyright Law has recently been changed in 2012 to include heavy penalties for downloaders of illegal music or movies for private use, including possible prison sentences of two years or fines of up to two million yen (Article 119, Paragraph 3 effective since October 1, 2012). Though there was no penalty, such downloading was illegal even before the penalties on downloaders were included, beginning from January 1, 2010 (Article 30, Paragraph 1, Item 3). Mr Otani commented: “Although most of the penalties under Japan’s Copyright Law are offences prosecutable upon a complaint, it is understood that investigation, including arrest, is possible before a complaint from the victim. The scope of the article which prescribes the illegal downloading for private use is rather broad, and deliberate practice by investigative organisation is expected.” The other amendment was to the Unfair Competition Prevention Law. From December 1, 2012, under certain conditions, trade secrets can be hidden during criminal proceedings as an exception to the principle of public trial prescribed under the Constitution. Mr Otani noted: “Before this amendment, companies were reluctant to start a technology theft case since doing so might end up disclosing their trade secrets in the criminal proceedings even if they can be protected under protective order and restriction on inspection in civil proceedings. It could be said that companies are feeling more comfortable in filing technology theft litigation after this amendment.” In regards to this, in late October last year, the Tokyo District Court began hearing a technology theft case by Nippon Steel & Sumitomo Metal against South Korean rival POSCO, involving the alleged theft of technology trade secrets for manufacturing a type of steel sheet and selling it to a Chinese steel maker. Technology theft cases are rare in Japan, but there is a situation where Japanese high-tech companies are and have been at risk of trade secret leakage to the rising countries. The number of trade secret cases is expected to grow in the future.

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Litigation Adviser for the Bahamas Parris Whittaker has an international reputation for delivering effective, intuitive legal advice across a range of practice areas, including maritime & shipping law, corporate legislation, intellectual property and copyright matters and employment & immigration law. The firm has recently been named ‘Bahamas Maritime Law Firm of the Year’, and ‘Corporate Law Firm of the Year’. Kenra Parris-Whittaker, partner, is a seasoned young litigator with an exceptional track record across all practice areas. Her dedicated and rigorous approach has been crucial to the firm’s success. Mrs ParrisWhittaker takes a client-centred approach, always ensuring legal advice is tailored specifically to clients’ needs, with focus on ensuring the best possible outcome. She noted: “A range of factors will determine whether a dispute resolution path might offer a swifter and satisfactory outcome, or whether litigation will be the best route. Individuals seeking a swift settlement of a property dispute might opt to take an arbitration approach, whereas maritime clients might be best suited to litigation. Corporate disputes are often best served by dispute resolution. An aggressive advocacy approach may be required when ensuring a seriously injured individual has adequate compensation.” At all times, Mrs Parris-Whittaker’s primary objective is to ensure a client has full access to justice. The key to her success is the development of productive professional working relationships with partners and stakeholders, both domestically and overseas. Major agencies, such as the Bahamas Department of Labour’s Conciliation Section, are particularly useful for dispute resolution in employment matters, while links with the Port Authority department ensure maritime and

shipping cases are undertaken effectively. Mrs Parris-Whittaker commented: “It is essential that taking legal advice represents a sound investment with the best possible return. A common pitfall for potential clients is a failure to ensure that legal advice is sought from a firm with a proven track record of expertise in the relevant area, leading to financial loss and often to anxiety and an uncertain future.” Although she has proved her expertise across all practice areas – from overseeing corporate restructuring to securing significant compensation in serious personal injury cases – it is in the field of maritime and shipping law that her rigorous and determined approach to litigation has been most noted. In particular, she recently secured an important win in a maritime lien case, ensuring her client was able to receive the full sum owed despite significant obstacles. With her reputation for securing successful outcomes for clients across a broad range of practice areas, Mrs Parris-Whittaker is a wise investment – whether for small firms, major corporations or individuals.

Parris Whittaker Kenra Parris-Whittaker Partner Tel: +242.352.6110 kw@parriswhittaker.com / info@parriswhittaker.com www.parriswhittaker.com

Corporate Finance Updates in Brazil Peres & Advogados Associados was founded in 1988 and provides legal advice in different areas of law, litigation and preventive, basing its work commitments on ethical principles, integrity and transparency. The partners at the firm believe that its greatest asset is the talent of their lawyers and the relationship developed with customers. Its main objective has always been the pursuit of excellence in customer service. It develops creative and effective solutions to a wide range of legal needs, from the simple and routine to the most complex and sophisticated. The firm partners with its clients, anticipating not only problems but also opportunities. Peres & Advogados Associados provides services in the following areas of law: preventive law and litigation, corporate banking, corporate, civil, tax, criminal, administrative, public civil, labour and social security. Each of these areas has a team of experts who are dedicated to meeting the diverse needs of each client. Regarding corporate law, the firm deals with recovery of companies, bankruptcy, dissolution and liquidation of companies and accountability. On August 2, 2013, Brazil’s new Anti-Bribery Law, which imposes civil and administrative liability on legal entities for acts committed against local and foreign public administration, especially those related to corrupt practices, was published in the Official Gazette. The law, proposed by President Dilma Rousseff’s government, covers both bribery of foreign officials by Brazilian companies and bribery of local officials by any company. Companies found guilty of bribery will face fines of up to 20% of their gross annual revenue for the previous year or a maximum of 60 million reais. The companies could also be suspended from operating, have assets confiscated and even face possible dissolution. Brazilian convictions for bribery have increased 30% since 2008, and federal

police conducted 289 operations last year, with 1,600 arrests, which included 100 public officials. The new law provides for the blacklisting of companies convicted of bribery, banning them from receiving public lending and government subsidies and withholding government contracts for up to five years. It also includes provisions to encourage self-disclosure of bribery cases, a practice quite foreign to Brazilian businesses. It has been recommended that Brazilian companies implement compliance programs to detect and prevent bribery by their employees and third parties acting on their behalf in public tenders.

The partners at the firm believe that its greatest asset is the talent of their lawyers and the relationship developed with customers. Peres & Advogados Associados Dr Raphael Atherino dos Santos Partner Tel: +48 3028-6628 / 3228 raphael@peresadvogados.com.br www.peresadvogados.com.br

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Portugal Proving Attractive for Foreign Investment Raposo Bernardo’s Department of Banking, Finance and Capital Markets has a specialised team working exclusively within these areas. This department is capable of leading large operations and performing the day-to-day work in such areas: banks, investment funds, financial companies, stock market-listed companies and institutional entities, among others.

Portuguese companies, but also companies based in Portugal who have capital of other nationalities, have actively sought investment in other countries such as Angola, Brazil, Mozambique, Spain, Cape Verde and Poland, among others. Portugal is a good basis for investment in these countries. However, there are certain challenges that need to be overcome. Raposo Bernardo added that any foreign investment requires adequate high Nelson Raposo Bernardo, Raposo Bernardo managing partner, noted: “Portugal financial, human and technical resources; meanwhile, he said, the return on is proving to be very attractive for foreign investment. Although the country has investment will take time, and so endurance is needed. been experiencing an economic and financial crisis, the truth is that it is a coun“Under no circumstance should an overseas investment be a way to solve try with stability, an excellent regulation in the financial sector, with oversight internal problems,” he noted. “If a company is not well internally, the investment responsibility and excellent business opportunities. it will make abroad will only worsen its situation. In addition, a company must “Even in other areas beyond the financial sector, Portugal has immense ophave an appropriate strategy for the country it is going to invest in, as all counportunities, such as in energy, mining, environmental, hospitality and services. tries have substantially different investment conditions and realities.” The government recently created a special measure designed to attract foreign According to Mr Raposo Bernardo, it is important to know the local culture, as investment – Visa Gold – which has attracted many investors from countries in some countries this is essential to achieve a good partnership with a local entity. outside of the European Union, such as India, China, Russia, Canada, Brazil, He added: “Besides the office of Lisbon/Portugal, our firm has more than Angola, Singapore, Denmark and Germany. eight other offices, which implies that there are many legal mandates for cross“Through forms pertaining to: investments in real estate, buying companies, border operations. Right now, around half of our business is generated and and deposits in the Portuguese banking system – combined with meeting certain developed outside of Portugal.” conditions – entrepreneurs can obtain a residence visa in Portugal, which is Raposo Bernardo extended to all countries of the European Schengen Area.” The largest operation in the financial sector in 2013 was led exclusively by Nelson Raposo Bernardo Raposo Bernardo. The operation related to the constitution of the NEXPONOR Managing Partner fund, an investment fund sponsored by AEP, the largest business association Tel: +351 21 312 1330 in the country, which brings together all of the major Portuguese companies. nrbernardo@raposobernardo.com This fund was created with the value of approximately EUR 70 million and www.raposobernardo.com was the first to be quoted on the stock exchange ALTERNEX, which belongs to EURONEXT.

Updates to Legislation Regarding Licensing Law in England Thomas & Thomas Partners LLP is the leading boutique licensing law firm founded by Alun Thomas and Thomas O’Maoileoin in 2011. The firm’s main practice areas are: alcohol & entertainment; betting, gaming & lotteries; regulatory; and planning. With their enviable reputation built up over decades, partners Mr Thomas and Mr O’Maoileoin are regarded as market leaders. Thomas O’Maoileoin has 15 years’ experience of licensing and regulatory law, having trained as a barrister at London’s top licensing and planning chambers. He represents numerous well known venues and organisations, including the Club Managers’ Association of Europe. He noted: “Our specialist team of lawyers are seasoned advocates and recognised leaders in their field with extensive experience before local authorities and the courts.” The firm’s clients include bars, hotels, members’ clubs, music festivals, nightclubs, restaurants and theatres. Its practice in London’s Covent Garden continues to act for some of the leading licensed premises and operators in the UK, including Westfield, McDonald’s Restaurants plc., Peter Stringfellow, Robin Birley (owner and operator of members Club, 5 Hertford Street),The Jamie Oliver Foundation, The Groucho Club, The Garrick and Dukebox. Regarding legislation updates to licensing laws, the Home Office recently published the new Licensing Act 2003 Guidance – June 2013 Guidance. The new guidance reflects recent deregulation of entertainment. The following types of entertainment taking place between 8:00 am and 11:00 pm no longer require a licence: a performance of a play with an audience of no more than 500 people; an indoor sporting event (excluding boxing or wrestling) with an audience of no more than 1,000 people; most performances of dance (excluding striptease) with an audience of no more than 500 people; live music, where the live music involves a performance of unampli-

fied live music, live amplified music in a workplace with an audience of no more than 200 people; or live music on licensed premises with an audience of no more than 200 people. In addition, the Corporation of London have issued a formal consultation as to whether they should institute a late-night levy. Their proposals are that a levy should either affect premises operating after midnight or 1:00 am. Any premises selling alcohol in the effective area after the times in question would be subject to the levy, which could be around £4,000 to £5,000 per annum. It would take effect from 1 April 2014. Further, regulations involving specialist tobacconist advertising restrictions will become law on October 1, 2013. This restricts any tobacco advertisement from being visible from outside a specialist tobacconist and requires any tobacco advertisement inside a specialist tobacconist to include specified health warnings and details of the NHS smoking helpline. Yet, a new private members’ smoking Bill has just had its first reading in Parliament. If passed, the Bill would allow members to smoke in a ventilated room within a club, providing a majority of the members approved. The Bill will likely attract adverse attention and has a long way to go before it becomes law. The next reading is not until November. Thomas & Thomas Partners LLP Thomas O’Maoileoin Partner Tel: +4420 7042 0414 tomaoileoin@tandtp.com www.tandtp.com

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Sector Panel

Japan Strengthens Maritime Cooperation

Litigation & Conflict Resolution in Colombia

In 1997, Yamaguchi & Nagahama was established by Nobuto Yamaguchi. It merged with Mizuno Sogo Law Office and became Yamaguchi, Nagahama & Mizuno in 2003. In 2011 it finally became Tokyo Sanno Law Office. The firm’s practice areas include: insurance; construction & real estate; corporate; M&A; dispute resolution; shipping, maritime & aviation; international transactions; and other international and domestic legal affairs of worldwide companies.

Vargas & Vargas Abogados is a recognised law firm, established in Bogotá D.C., with representation in London, UK, where it is a member of the British-Colombian Lawyers Association. The firm specialises in litigation, alternative dispute resolution, advice and consultancy in areas such as, criminal law, business criminal law, human rights, civil, corporate and labour law, hydrocarbons, mining and insurance regulation, foreign investment, government contracting, among others.

The firm’s typical clients include: banks, leasing companies, trading houses, shipping companies, manufacturers, as well as London and New York-based – and other foreign entities. As a shipping and maritime firm, Tokyo Sanno Law Office has become well known for assisting clients in all legal matters from shipbuilding to scrapping, including contracts, financing, charter agreements, insurance and maritime related litigations. Mr Nobuto is the key member of the firm. He is an arbitrator of the Tokyo Maritime Arbitration Commission and the Tokyo Marine Arbitration Commission of the Japan Shipping Exchange, as well as being a general corporate lawyer. His main practice areas are litigation and arbitration, international transactions, corporation, joint venture, finance, ship finance, ship sale and purchase, maritime disputes, arresting vessels, government and administrative relations, medical law & pharmaceutical law, mortgage enforcement, M&A and security regulations. Japan has been promoting bilateral cooperation with the Philippines in the field of maritime for several decades. Earlier this year, for the second time, the two countries held bilateral talks on maritime and oceanic affairs in Manila. It followed Japan’s approval of a request by the Philippines for 10 multi-role response vessels under Japan’s soft-loan programme. The vessels will be turned over to the country next year. During the talk, various areas of cooperation, particularly regarding maritime safety, maritime security, fisheries and marine scientific research, were discussed. The countries also exchanged views on programmes and actions to promote cooperation in freedom of navigation and safety at sea and shared best practices on the maritime law enforcement capabilities of countries. Further, Japan is providing communication systems that will be installed in PCG vessels to help improve its capacity in policing the country’s territorial waters. The first talk on Maritime Cooperation was held in Tokyo, Japan, on September 9, 2011.

As a shipping and maritime firm, Tokyo Sanno Law Office has become well known for assisting clients in all legal matters from shipbuilding to scrapping, including contracts, financing, charter agreements, insurance and maritime related litigations. Tokyo Sanno Law Office Nobuto Yamaguchi Partner Tel: +81-3-3589-3585 yamaguch@gol.com www.ynmlaw.com

When managing each one of its cases, confidentiality, responsibility and professionalism, as well as using the appropriate techniques, has allowed the firm to practise with success in the prevention and resolution of conflicts. The experience and youth of the team at Vargas & Vargas has allowed it to tackle new areas of law and given it a reputation for breaking new ground in Colombia and abroad. The firm and each of its lawyers have been recognised for their high level of professionalism, skill and commitment when handling each and every case. One of the firm’s most important practices is the proposition of a negotiated agreement, along with instances when it is not viable, whether it is for companies, organisations or persons, national or foreign. Luis Fernando Vargas Rodríguez, Vargas & Vargas partner and director, noted: “We outline strategies directed to protect our clients’ interests by analysing the legal reality of a dispute, thus determining the possibilities and probabilities of a possible litigation. Likewise, a consultancy gives us an overview of every client or business, allowing us to act before the possible controversy.” Luis Fernando Vargas Rodriguez works in the litigation area of Vargas & Vargas. He is a legal adviser with broad expertise in criminal, civil and corporate law, and has represented many companies in important litigations in these areas. He graduated in legal structuring and direction of oil industry projects. Mr Vargas is part of the defence team of a business group against the Venezuelan State before international bodies in the matter of human rights. He is also a member of the British-Colombian Lawyers Association and the Rosario Attorney College, and an international observer in legal processes for the International Bar Association-Human Rights Institute and the British-Colombian Lawyers Association. He commented: “The largest institution dedicated to dispute resolution is the judicial branch. This branch, through its judges, has the task of resolving disputes and conflicts among individuals, individuals and government, and among governmental institutions. This means that judges in different jurisdictions have an obligation to define cases that are brought to their attention. There are also other institutions that specialise in alternative dispute resolution, such as Commerce Chambers, which do arbitration, mediation and negotiation.” Moreover, in recent years, oral litigation has been implemented in criminal, civil, administrative and labour cases, providing clients with the principles of immeditation and concentration. New regulations have also been introduced in Vargas & Vargas’ active jurisdictions, obligating judges to give rulings in shorter time periods. Mr Vargas added that this is to speed up processes, and was brought about because of existing judicial congestion. Vargas & Vargas Abogados Luis Fernando Vargas Rodríguez Partner / Director Tel: +57 1 6104401 / +57 3212052688 info@vargasvargasabogados.com luisfernando@vargasvargasabogados.com www.vargasvargasabogados.com

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Sector Panel

Intellectual Property in Germany

Viering Jentschura & Partner Dr Wolfgang Festl-Wietek Attorney at Law / Rechtsanwalt Fachanwalt für gewerblichen Rechtsschutz Tel: +49 89 210 697 0 wfestl@vjp.de www.vjp.de

Viering Jentschura & Partner (VJP) handles all kinds of intellectual property work, prosecution, searches, due diligence, licensing and litigation. The firm is international, not only regarding its clients, but also its members and employees. It has staff and attorneys from Korea, China, the US and Japan. VJP’s offices in Singapore, Taiwan, China and the US allow it to provide very cost efficient services to international clients. The firm has excellent attorneys and regards the high level of its work as its main ‘marketing factor’. Wolfgang Festl-Wietek, VJP partner, started his career as an in-house attorney at Deutsche Bank AG. After four years dealing mainly with commercial matters, he changed to the Chamber of Industry and Commerce where his focus was on counselling concerning commercial and unfair competition law in general. At this time, he started giving lectures on matters such as the liability of managing directors in relation to intellectual property infringements. Mr Festl-Wietek has been working with VJP since 1994, and has been a partner since 1995. He began mainly in the field of trademarks, now focusing on patent litigation, counselling and licensing. He said: “Some of our clients are start-up companies, many clients are medium-sized companies, but we also represent multinational Fortune 500 companies. There are a substantial number of direct clients who appreciate mine and my colleagues’ experience as a former in-house attorney. “I am a member of INTA, LES, GRUR and the German Association of Attorneys at Law. I have given lectures at INTA, WIPO, LES, the Taiwanese Patent Office, the Chinese Patent Office, the Los Angeles Bar Association and many other associations. “Also, Germany knows a particular qualification – specialised IP attorney (Fachanwalt für gewerblichen Rechtsschutz), and I am qualified as such.” A particular focus of Mr Festl-Wietek’s work is on Asian clients. The firm represents many Taiwanese companies, and he successfully handled the Chinese ‘Wang Zhihe’ litigation in Germany, which was the first ‘Trademark Grabber’ case before German courts after China joined the WTO. This

case had great media coverage in China, including several CCTV interviews and reports. Germany regards itself as one of the leading countries in IP matters. The German Patent Act dates back to 1877, while the German Trademark Act goes back to 1874. These laws have been regularly updated and, in the meantime, faced harmonisation through European directives and regulations. However, German law in most cases was developed to a state that the harmonisation did not need much implementation since German laws already complied with the EU standards. Mr Festl-Wietek commented: “It is worthwhile to mention that German courts tend to be in favour of the owner of the IP right so that it is comparably difficult for defendants to win. Patent litigation is characterised by the bifurcation, i.e. the separation into infringement proceedings before the Civil Courts and invalidity proceedings before the Patent Courts. This bifurcation again results in a system which is in favour of the patentee. “Germany is known for its preliminary injunctions. In other words, in particular at fairs German courts may grant a preliminary injunction within some days and may grant even a preliminary injunction in patent infringement cases ex parte, i.e. without oral hearing.” Further, in Germany there is an established system of enforcing IP rights on a cross-border scale with regard to Community Trademarks and Registered Community Designs. Germany is also expected to be a major player in the upcoming Unitary Patent and in the Unitary Patent Court System, with Munich being one of the official seats of this court. Some courts tend to issue injunctions in scenarios of process patents in which essential steps of the process are operated outside Germany (e.g. District Court Düsseldorf: decision prepaid telephone card). Also, many international fairs are taking place in Germany. Therefore, judgements of German courts quite often have an implied cross-border effect. With Germany being the biggest economy in Europe, judgements in Germany quite often have a strong economic influence on all other European countries. Mr Festl-Wietek noted: “At the time being, our firm is acting for a nonpractising entity in enforcement of telecommunication patents against providers in several European countries. We use the German legal system, including said Düsseldorf decision and including case law on contributory infringement, to enforce these rights. “The Unitary Patent and the Unitary Patent Court will be the major new trends in the next years. It is expected that Germany will maintain its leading role in European patent litigation, and our experience before the courts in Mannheim, Düsseldorf and Munich will certainly help us to maintain our position as one of the leading IP firms in Germany.”

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Sector Panel

A Positive Outlook for the Commercial Real Estate Sector in Mexico Vázquez Aldana, Hernández Gómez & Asociados (VAHG) operates in Mexico City and Guadalajara, Mexico, being the largest Mexican member firm in Consulegis, EEIG. VAHG has consolidated more than 50 years of legal practice, serving clients across the Mexican Territory. Its business approach encompasses its prestigious reputation, high levels of experience, strong ethical values and professional standards, as well as responsiveness, accountability and trust. VAHG is recognised as a leading legal firm for M&A, corporate law, banking and securities law, real estate law and corporate transactions in general, including notary public and commercial notary public services, within its geographic area in Mexico. Fernando Hernández Gómez, VAHG partner, specialises in M&A, corporate and contractual law, banking and securities and real estate. He is a corporate attorney with international practice expertise. The firm has a vast knowledge of legal structures for both industrial and commercial real estate developments, particularly resorts and housing. It handles structures and strategies through trusts, condominium property regimes, property in Federal Zone and Restricted Zone, joint ownerships, timeshares, fractional ownership and other forms of ownership for Mexican and foreign investors. VAHG handles its clients’ real estate contracts with a high degree of sophistication, including the securitisation of real estate assets and conducting all types of real estate trusts. Mr Gomez noted: “Performing due diligence is very important before purchasing any real estate in Mexico as Ejido land (a type of farm land) is not private property and, therefore, it may not be transferred to any individual, either Mexican national or foreign national. However, since the constitutional reforms of 1992 Ejido land can now be converted into private property and transferred in favour of third parties, including foreigners.”

The Mexico Real Estate Report examines the commercial office, retail, industrial and construction sectors throughout the country after the recent election. It covers the rental market performance in terms of rates and yields over the past 18 months, and examines how best to maximise returns in the commercial real estate market, while minimising investment risk. According to the report for Q2 on 2013, “commercial rental growth in Mexico has been fairly stable, particularly in the office and industrial sub-sectors. Minimal growth in rents is expected over the course of 2013, amid a continued slowdown in the US that has increased caution among international investors. Nevertheless, we maintain an overall positive view about the potential of the commercial real estate sector in Mexico over the long term.” During the past 12 months the Mexican Stock Market accepted the public trade of 5 REITs. The REITs reported as of Q2/2013 a portfolio of $7.57 billion in assets and generated gross revenue in the amount of $2.28 billion as opposed to the declining low cost housing sector where the shares show a significant decline in value, in some cases 90% less than 2012. This is linked with changes to President Peña Nieto’s public policy, which is giving preference to renovation within the cities versus extending in places where public services or infrastructure have not yet reached. Vázquez Aldana, Hernández Gómez & Asociados Fernando Hernández Gómez Partner Tel: +52 33 38171731 fhernandez@vahg.mx www.vahg.mx

The Impact of International Imports on Trade Mark Law in Australia Wrays has historically provided a traditional trade mark filing and prosecution practice, with a dependence on domestic clients, from their base in Perth, Western Australia. However, in recent years the firm has moved to position itself as a significant regional IP service provider, both through committed attendance at overseas conferences, including INTA, and the expansion of the service offerings. It has an extensive associate network across the globe. The firm actively attends global conferences to further educate its staff about the every changing international IP landscape, and to establish new working relationships with other overseas firms. In the past, many international companies have overlooked Australia as a jurisdiction in which trade mark protection is required, leaving this decision up to an importer of their products. However, as the retail market moves towards an increasingly online environment, many consumers in Australia find it easier and cheaper to buy their products overseas and arrange their own shipping. This can present particular problems for companies who had not yet considered, or were not yet ready to enter the Australian market. This can lead to an increase in the number of ‘grey imports’ into Australia, and the increase in the importation of counterfeit goods into Australia. While this is nothing new to businesses in the fashion industry, it is something that companies across a much broader spectrum of goods must now give consideration to. Peter Caporn, Wrays principal, added: “A further problem is that it is possible that a company will discover that another party may have registered an identical trade mark for identical goods or services in Australia. This may mean that the company either has to try to purchase its own trade mark, or

has to consider launching with a new brand in that country, which will mean losing the goodwill and reputation existing in the established brand. “While Australia does allow the removal of registrations where the applicants have no intention to use the mark in Australia (trade mark squatters), it is far easier for a company to be proactive and to search and file their own application early to prevent this.” Mr Caporn entered the patent and trade mark attorney profession in 1989, working with a small firm before joining Wrays in 1994. He became responsible for a practice group in 1996 and became a partner / principal at the firm in 1997. He noted: “Recently, intellectual property reforms in Australia have made a number of improvements to the customs seizure’s Notice of Objection scheme. These reforms have strengthened Australia’s anti-counterfeiting efforts and are very favourable to rights holders. The changes address some of the difficult issues previously faced by trade mark and copyright owners when using the Notice of Objection scheme and will greatly increase the efficiency with which IP rights may be enforced.” Over the last four years, Wrays has established offices in Sydney, Adelaide and Brisbane. It will be looking to continue to build on this formidable base to provide a truly Australasian intellectual property practice. Wrays Peter Caporn Principal Tel: +61 8 9216 5100 peter.caporn@wrays.com.au www.wrays.com.au

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Global Tax Who’s Who Sonia Velasco Menal is co-chair of the International Bar Association for Tax (IBA). The IBA’s widely respected and very active Taxes Committee offers its members access to the highest quality technical, practical and professional tax expertise to assist in understanding and finding solutions to international tax issues and concerns. It covers all practice areas and professional interests and is grouped into two divisions – the Legal Practice Division and the Public and Professional Interest Division. Through the various committees of the divisions, the IBA enables its members to exchange information and views regarding laws, practices and professional responsibilities relating to the practice of business law around the globe. Ms Velasco commented: “The role of chair involves increasing the knowledge of taxation in the legal profession by way of conferences, publications and other media as well as providing unparalleled networking and development oppor tunities for the members or our committee and the legal profession. My role gives me the oppor tunity to work with amazing tax practitioners around the world who assist my co-chair and I in our tasks.” The IBA was created in New York, on February 17, 1947, by representatives of 34 national bar associations. It was inspired by the vision of the United Nations (UN) with the aim of suppor ting the establishment of law and administration of justice worldwide. The IBA provides members with access to leading exper ts and upto-date information. Ms Velasco added: “We believe the conferences and newsletters launched by the IBA Taxes Committee help our peers stay up to date with changes in legislation.

profit shifting. “2012 and 2013 have proven to be years in which the fundamental principles in taxation are being questioned. ‘Base erosion’, ‘profit-shifting’, transfer pricing, taxation of digital businesses, transparency and tax planning are in the press almost everyday – usually negative and often uninformed.” In addition to being the co-chair for the IBA, Ms Velasco is also the tax par tner at Cuatrecasas, Gonçalves Pereira, where she advises international clients – multinationals, venture capitals, private equity entities – on acquisitions, disinvestments and restructurings. She also counsels family offices and wealthy families on wealth management and estate planning, with special emphasis on cross-border issues. Her experience in the US has provided her with in-depth knowledge of US legal forms such as par tnerships and trusts that do not have precise counterpar ts in Spanish law. From 2006 to 2009, Ms Velasco was based in Cuatrecasas, Gonçalves Pereira’s New York office, working closely with US and Canadian multinationals as well as venture capital companies with investments in Spain and Latin America. She predicts that in the coming months, the EU, OECD and the taxing authorities of many jurisdictions will remain very active in reviewing the fundamental principles of taxation. In the case of Spain, a major reform of the tax regime is also expected for early 2014.

International Bar Association for Tax

“This year, the IBA Committee has already hosted three conferences – the second London conference on current international tax issues and cross-border finance, sponsored in conjunction with the Char tered Institute of Taxation, held in February; the conference on European-US Tax Strategies, held in London in April and jointly sponsored with the American Bar Association and the International Fiscal Association; and the US-Latin American Tax Planning Strategies held in Miami in June, also jointly sponsored with the American Bar Association and the International Fiscal Association.” The programme at the IBA Annual Conference later this year will address the impor tant issues in the international tax world such as taxation of e-commerce, transfer pricing, basis erosion and profit shifting. Leading representatives of the OECD and the US Treasury authorities will speak at our panels and give their perspective on these developments. Ms Velasco also frequently lectures at IBA and other international forums. She noted: “I myself cover a range of topics including the structuring or restructuring of M&A deals, the structuring of foreign investment into Latin America or issues such as base erosion and

Sonia Velasco Menal Co-Chair of the IBA / Tax Partner of Cuatrecasas Gonçalves Pereira Tel: +34 93 290 55 90 sonia.velasco@cuatrecasas.com www.cuatrecasas.com

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Global Tax Who’s Who

Australia Weston Woodley & Robertson

Weston Woodley & Robertson (WWR) is a city based boutique professional services firm with experience across a diverse range of industries. It is also a member of GMN International.

Cameron Johnstone Partner Tel: +61 2 9264 9144 cameronj@wwr.com.au www.wwr.com.au

Brazil Deloitte Touche Tohmatsu

Deloitte Brazil Tax primarily provides consulting and advisory services regarding the interpretation and analysis of various types of taxes that are levied upon transactions carried out with Brazilian parties. Deloitte Brazil is not incorporated as a law firm and its advisory and consulting work does not represent a legal opinion, which is limited to companies duly registered with OAB (the Brazilian Bar Association), since it is exclusively based upon technical arguments and existing jurisprudence.

Cristina Arantes A Berry International Tax Partner Tel: +55 11 51861033 caberry@deloitte.com www.deloitte.com.br

Cameron Johnstone, Weston Woodley & Robertson partner, noted that Australia is a significantly complex area of taxation, specifically the Controlled Foreign Company rules (CFC rules) and Capital Gains Tax rules for inbound and outbound expatriates. There has also been an increase in the complexity surrounding trusts and unpaid trust distributions involving private companies, as a result of the ‘Bamford decision’. The 2010/11 Federal Budget contains several changes for Australia’s tax system. One significant announcement is the earnout arrangements, where all payments under a qualifying earnout arrangement will be treated as relating to the underlying business asset. Another is the extension of CGT demerger relief, where CGT demerger provisions are to be amended to allow another member of a demerger group to qualify as the head entity of the group where the existing head entity cannot demerge its interests in the demerger group. Also, legislation is to be enacted to allow Australian interest holders to utilise a broader range of CGT rollovers where an entity restructures using a share or interest sale facility for foreign interest holders. The Federal Government announced the reports from two recent studies which looked to change the landscape in Australia over the coming years. The reports were called The Henry Review, which looked at review of the tax system. Mr Johnstone commented: “The government response to the review and its decision to selectively choose key ideas such a new resources tax on miners along with a higher Superannuation Guarantee Charge is set to change the direction of our economy. Highly targeted

The Brazilian tax system is complex, sophisticated and subject to constant updates and amendments, which leads to recurring demands for advisory services. It also has different tax structures in different states and cities. Cristina Arantes A Berry, Deloitte international tax partner, noted: “Our tax consulting practice has a multidisciplinary approach, with customised services adjusted to the reality and necessities of our clients, starting from a combination of integrated solutions customised to each challenge.” “The Brazilian tax environment has been going through a very rapid and profound change, requiring clients to become even more dynamic and extremely competitive. Our approach is to add value through our multi-disciplinary tax practice, aligned to the necessities regardless of where the transaction is performed.” The Brazilian tax system gives rise to challenges and risks that must be carefully analysed in areas such as the indirect tax system, transfer pricing, cross-border taxes and corporate income tax. The indirect tax system – where a wide range of indirect taxes, including value added tax/goods and services tax, sales and use tax, customs duties, excise duties, insurance premium tax, among others – was introduced by federal, state and municipal jurisdictions. The application of the Brazilian transfer pricing rules, which do not follow the OECD guidelines, has historically resulted in tax adjustments. Cross-border taxes – a comprehensive range of inbound and outbound tax services – help multinational companies to reduce taxes on earnings, enhance mar-

initiatives such as improved tax treatments for small business and better superannuation terms for lower paid workers will also stimulate the wider economy in the months ahead. But the Labour Government has already tweaked changes to the report in order to have itself re-elected.” A second major review, known as the Cooper review, looked at the governance, efficiency, structure and operation of Australia’s Superannuation System. Commenting on the effect of the global economic slowdown, Mr Johnstone believes that Australia has been fairly lucky. He said: “Yes, business restructuring and corporate reorganisation and IPO’s have been limited. But overall the economy has traded quite well as it has been supported by a commodities boom which by its very nature feeds into a number of other services. So as far as our practice is concerned the client base has held up quite well. “We have noticed in the past six months more international referrals coming into Australia from other countries. It could be that management see our economy and political climate as being quite healthy comparative to the rest of the world. Our dollar has been strengthening markedly. “Provided there is no double dip recession and the commodities boom continues Australia is in an excellent position to maintain its growth and play a more significant stage in the world economy. We do not expect any major shifts in policy with the exception of the Labour Government, which is currently looking at a carbon tax. That will need to be debated and will be hotly contested.”

gins and grow their businesses through a wide variety of advisory services. Corporate income tax is one of the biggest challenges and greatest areas of opportunity for taxpayers. It is effectively managing local and foreign taxes in a way that aligns with overall business objectives and operations. Deloitte advises companies on a broad range of domestic, business restructuring and planning for the impact of new and proposed regulations. Ms Berry added: “Despite all the sophistication and complexity of the Brazilian tax environment, Brazil still is an attractive country to foreign investors, mainly due to its economic momentum.” “Over the last few years, Brazilian tax authorities and legislation have changed and introduced various electronic filings such as SPED (Sistema Público de Escrituração Digital – ‘Digital records’) as well as electronic invoices and other reporting systems comprising a number of federal, state and municipal taxes.” “This system allows tax authorities continuous and immediate access to tax and operations data, allowing a close and continuous audit of information between the various tax authority levels.”

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Global Tax Who’s Who

Cyprus DER ARAKELIAN-MERHEJE LLC

DER ARAKELIAN-MERHEJE LLC provides corporate and tax planning advice for international businessmen who invest in various countries in Europe and beyond. The firm has 25 years’ experience in the area of advising upon international joint ventures and all legal and tax issues related to such joint ventures.

Mrs Nairy Merheje Advocate Tel: +357-22313339 enlaw1@cytanet.com.cy www.nmerhejelaw.com

Indonesia Lubis Ganie Surowidjojo

Lubis Ganie Surowidjojo (LGS) was founded in 1985 by Timbul Thomas Lubis, Dr M Idwan Ganie and Arief T Surowidjojo. The firm has experience representing a diverse range of clients, including domestic and multinational corporations, public and private companies, government instrumentalities and stateowned enterprises. LGS works closely with its clients to understand their problems, determine their needs, and arrive at practical solutions that are both costeffective and viable over the long term.

Dr M Idwan Ganie Managing Partner Tel: +62-21 831 5005 ganie@lgslaw.co.id www.lgsonline.com

Mrs Nairy Merheje, DER ARAKELIAN-MERHEJE LLC founder and advocate, has been practising law in Cyprus since 1984, particularly intensively in the company, commercial and international business enterprises fields. She has been working specifically in the tax planning area for the last 15 years. She commented: “My firm is exclusive Cyprus member of two prestigious worldwide networks of tax practitioners and lawyers – International Tax Specialists Group and Avrio-Advocati network of European Lawyers. Such affiliations provide us with European and worldwide professional connections, which enables us to provide our clients with ‘one stop shop’ legal and tax services. Thus, we are fully confident that the professionals we refer provide legal and tax services of the best quality we could wish for.” Cyprus has two revenue raising measures that must be considered when planning to use Cyprus as a base for a holding company. One is the income tax and the other is the defence levy. From 2013, corporate tax rate is 12.5% on net annual profits. The concept of residency status for corporations has been adopted since 2003 so that tax liability in Cyprus is dependant on the status of a company as a resident. Generally, residents are taxed on worldwide income. However, there are several important exceptions, including exemption of dividends and of profits from the activities of a permanent establishment outside Cyprus. Mrs Merheje noted: “External factors, such as the specific conditions imposed by each of the EU member

states for the implementation of the EU Parent Subsidiary Directive, are becoming increasingly tougher to comply with, in order to ensure that valid commercial reasoning can be determined behind each structure. “This is not so difficult because most of the tax structures utilising Cypriot companies are established by businessmen of various nationalities wishing to form partnerships and attract investors in order to invest in business projects in many commercial fields. Here, factors of legislation based on English legislation, strategic location, user-friendly tax regime and well established infrastructure contribute to the popularity of Cyprus as an international business centre. “My firm, with its long and widespread experience, is in a very good position to assist clients in finding the appropriate structure, custom made to suit each client’s requirements.” Mrs Merheje supports the general worldwide trend to discourage and eliminate the use of tax havens, if these are used as a means to divert huge profit flows from the countries in which such profits should in all fairness be taxed. She added: “However, I do not support the exploitation of such principles in order to victimise enterprising businessmen who essentially oil the wheels of projects and business generation, which afford substantial employment opportunities for the enormous army of young graduates and other unemployed classes, which Europe and the US have recently been experiencing.”

Dr Mohamed Idwan (‘Kiki’) Ganie, Lubis Ganie Surowidjojo managing partner, noted: “One of our unique selling points is the combination of our long-standing commercial law practice and our premier litigation department that has extensive experience in dealing with administrative court disputes. This allows our corporate transaction departments to benefit from such litigation experience, and from their own compliance work, to ensure that any transactions handled by the firm are carried out with a view to the potential for future disputes and any existing risks.” Dr Ganie has more than 30 years of legal experience, and specialises in commercial transactions and commercial litigation, including alternative dispute resolution. He has acted as an expert in a number of court and arbitration proceedings. Further, he graduated from the Faculty of Law of the University of Indonesia and holds a PhD in Law from the University of Hamburg. He is a chairman of the Association of Indonesian Anti-Trust Lawyers, a member of the Regional Panel of the Singapore International Arbitration Centre (SIAC), and a fellow (FSIarb) of the Singapore Institute of Arbitrators. Indonesia has a wide network of tax treaties, both with its neighbours (notably Singapore and Hong Kong) and with countries that have been traditional sources of foreign investment (Japan, South Korea, Netherlands, Australia, United Kingdom, and the United States). In addition to treaty benefits, Indonesia provides a robust framework of tax incentives for investors, which include

temporary suspension of income tax and a range of import facilities. Indonesian tax authorities are becoming increasingly sophisticated. At times this has resulted in an overly conservative view being taken by the authorities in an attempt to crack down on perceived abuses, even when the conduct in question is not technically in breach of regulations. In such cases, it is important to actively engage with the authorities and adequately explain the structures and transactions in question. Dr Ganie added: “It is unlikely that there will be specific regulatory change in Indonesia to target tax havens since the legislation already provides for re-evaluation of ‘avoidance transactions’. This approach has been used by Indonesian authorities in the past and, with the tax officials’ increasing sophistication, should be expected to be applied in increasing numbers of cases. Particularly, although not legislated, the tax officials have a view of certain countries as being tax havens – and any transactions or arrangements involving such countries are coming under increasing scrutiny.”

Dr Ganie has more than 30 years of legal experience, and specialises in commercial transactions and commercial litigation, including alternative dispute resolution.

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Global Tax Who’s Who

Switzerland Poledna Boss Kurer AG

Poledna Boss Kurer AG is a full-service interdisciplinary business law firm that was founded by four well established practitioners with their respective teams from other law firms. It has since grown to more than 20 professionals who offer the full range of services typically required in the context of international transactions and restructurings, namely corporate, contractual, tax and labour law advice.

Walter H Boss Partner Tel: +41 44 220 12 12 boss@pbklaw.ch www.pbklaw.ch

Walter H Boss, Poledna Boss Kurer AG partner, noted: “Our firm consists of experts who, rather than being simply a collection of resources unrelated among themselves, see beyond the traditional limits of their areas of expertise. We view ourselves as part of the client’s risk management. The law is for us a tool to control risk. Based on this premise we help our clients create contractual and organisational structures that give them control over the relevant processes.” Mr Boss is a graduate of the University of Berne and of the New York University School of Law, where he obtained an LLM (Tax) degree. He was admitted to the Bar in 1980, and until 1984 served in the Swiss Federal Tax Administration (International Tax Law Division) as legal counsel. He was also a delegate to the OECD Committee of Fiscal Affairs before becoming an attorney with major firms in Lugano and Zurich. Mr Boss joined Ernst & Young in 1986 and became a partner at Ernst & Young’s International Services Office in New York in 1988. He added: “Upon my return to Switzerland in 1991 I joined a major law firm in Zurich, and prior to cofounding Poledna Boss Kurer AG I was a partner at another well-known law firm in Zurich. “My areas of concentration are national and international tax law, mergers and acquisitions, private equity and corporate restructurings. I also advise private clients and I am a co-author of the commentary to the Swiss-US income tax treaty and the Swiss Code of Obligations (corporate law). I am a member of the Zurich Bar Association, the Swiss Bar Association, the American Bar Association, the International Bar Association and the International Fiscal Association. I serve as chairman of the Tax Chapter Board of the Swiss-American Chamber of Commerce.” Recently, there have been two leading cases in the area of tax loss carry forward. In its decision on January 4, 2012, the Swiss Federal Supreme Court held that losses incurred by the absorbed company in the course of a merger can, under certain circumstances, be offset against the profits of the absorbing company, even if the loss-making business is not continued. Previously such losses could only be offset if the

loss-making business of the absorbed company was continued. If the business was discontinued prior to or shortly after the merger, then the requirement of continuity was not met and the losses could not be transferred to the merging company. In its decision on March 12, 2012, the Swiss Federal Supreme Court ruled that the change of tax status of a company from holding company to an ordinarily taxed company does not have a negative impact on the losses incurred by the company under the holding company status. Losses incurred under the holding status may now be offset against profits that the company generates under the ordinary company tax status. Previously, after a holding company had given up its privileged tax status, and transitioned to an ordinarily taxed company, the cantonal tax authorities did not allow losses incurred under the holding status to be offset against taxable profits of the ordinarily taxed company. As the federal and cantonal tax authorities still have a relatively wide discretion, in the daily business the firm faces the challenge of whether the competent tax authorities will accept a given structure from a tax point of view. These issues are typically addressed in a tax ruling in line with a well established ruling practice, which may be obtained from the competent tax authority in a rather shor t time frame. The cer tainty for the taxpayer achieved this way renders the Swiss market very attractive to foreign investment. But also from the legal perspective, there is cer tainty of law, especially regarding M&A transactions. Due to the possibility of obtaining an advance ruling from the competent tax authorities, tax litigation is less of an issue than in certain other jurisdictions. If a matter is litigated, the courts are rather swift in handing down a judgement. Mr Boss commented: “Our firm’s unique selling point from a tax law standpoint certainly is the long-standing experience of our lawyers and their awareness of current developments as well as the administrative practice in the field of tax, which allows us to give concise and well founded advice and, if needed, to obtain favourable tax rulings for our clients.”

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Global Tax Who’s Who

Portugal Caiado Guerreiro & Associados

Caiado Guerreiro practises in the areas of tax planning and litigation, and advises in matters regarding corporate tax, high net worth individuals, stamp duty, real estate taxes, transfer pricing, banking and foreign investment, among others.

Tiago Caiado Guerreiro Partner Head of the Tax Department Tel: +351 21 371 70 00 tguerreiro@caiadoguerreiro.com www.caiadoguerreiro.com

UK/Guernsey Price Bailey Fiduciary Ltd

The UK tax regime has long been favourable to foreign domiciled individuals and this has not changed following the tax changes introduced in 2008. Planning before arrival in the UK is essential to take best advantage of the tax breaks on offer.

Ron Hollingsworth Director Tel: +44 (0) 1481 715669 ron.hollingsworth@pbfiduciary.com

www.pricebailey.gg

Matt Coward Partner Tel: +44 (0) 20 7065 2660 matt.coward@pricebailey.co.uk

Tiago Caiado Guerreiro, Caiado Guerreiro & Associados partner and head of its Tax Department, has been working in tax law for the past 20 years, as well as assisting foreign companies, banks and high net worth individuals in Portugal, Angola, Mozambique, Brazil and Timor. Mr Guerreiro is an adviser in the Portuguese Forum for Competitiveness, a member of the scientific council of Portuguese chartered accountants, a consultant from the Portuguese state and a judge in the Portuguese Tax Arbitration Centre. Further, he is a professor in several Portuguese universities and has published several papers, articles and books on holding companies, tax planning and tax systems, among other subjects. He noted: “The Portuguese tax regime is very typical – profits are liable to a 25% tax plus a local municipal tax of 1.5%. There is an ongoing corporate tax reform which is pursuing a simplification of the tax regime and is reducing the corporate tax to 18%. Portuguese tax regulations are very strict on tax havens and tax evasion.” Mr Guerreiro stated that the main tax difficulties encountered in his jurisdiction are unclear tax laws and an aggressive tax administration because of the Portuguese budget in balances. He said: “In order to mitigate this we try to create investment structures that, although efficient, are very straightforward and simple; meanwhile, in more complex situations, we aim to arrive at a bidding advance ruling from the Portuguese Tax Administration.” Portugal is a very attractive jurisdiction for foreign

investment – because foreign tax residents who become residents for tax purposes in Portugal are not liable to any taxes for whatever form of income they receive from outside the Portuguese territory. Only income gained from their activities in Portugal is liable to tax at a 20% tax flat rate. This is very interesting for high net worth individuals or retired people who come to live in Portugal, because they will not be taxed on foreign sourced income. Accruing to this, there is no gift tax or inheritance tax between the couples, parents or children. Mr Guerreiro added: “This regime is in total compliance with EU law as it has been approved by the European Commission and, in my opinion, because you benefit from EU directives it is probably the most competitive tax regime in the world.” The legal complexities in regards to cross-border tax matters vary – from different interpretations of concepts, such as royalties, to the qualification of legal entities and products. Caiado Guerreiro tries to overcome this problem by maintaining an open discussion with the Portuguese Tax Administration, therefore avoiding future surprises and liabilities derived from the different interpretations of tax issues. Portugal is a very interesting platform to invest in former Portuguese colonies such as Angola, Mozambique, Brazil, São Tomé e Principe, Guinea and Timor. The firm’s plans for the coming months are to increase revenue in these jurisdictions.

A person’s domicile is taken from the person upon whom they were legally dependent when they were growing up and later, when they can choose their domicile, the place with which they maintain closest links. A person born overseas will normally take the domicile of their father until the age of 16, when they can choose a different domicile. Those who are non-UK domiciled may claim the remittance basis of taxation in respect of overseas income and capital gains, effectively excluding overseas income and gains from UK taxation, providing those funds are not enjoyed in the UK. With careful planning, a UK resident non-domiciled person can structure their personal and business interests highly advantageously for tax purposes. The remittance basis can be claimed without charge for short term visitors to the UK. Those who have been resident on a longer term basis must pay a £30,000 annual charge to claim. Similar advantages exist for the non-UK domiciliary, which exclude non-UK assets from Inheritance Tax. Through their Guernsey office Price Bailey are able to assist with the planning and structuring necessary to take best advantage of the tax reliefs available and through their offices in the UK to provide ongoing tax compliance, advisory and other services, from annual accounts preparation, statutory audit, to specialist corporate finance consultancy. Guernsey is conveniently situated with good air links to the UK, is well regulated and has an established

business infrastructure well placed to provide banking, investment and fiduciary services required by high net worth clients. The personal Income Tax rate in Guernsey is 20%. Solely and principally resident individuals are taxed on their worldwide income although there is a tax cap of £100,000 on non-Guernsey source income and of £200,000 on worldwide income. Persons who are resident only are either taxable on their worldwide income or can elect to pay an annual standard charge of £25,000. Corporate tax is levied at between 0% and 20% (although commonly referred to as zero-ten) depending on the nature of the entities activity. There are no capital taxes on gains or inheritance and no VAT. The corporate tax regime is currently under review and may lead to a variation of the zero-ten system referred to above. Price Bailey is a top 40 firm of Chartered Accountants and won the Accountancy Age Large Firm of the Year award in 2010. In addition to Guernsey it has offices located in the city of London and the East of England and is also a member of UK200 Group, the leading UK quality assured membership organisation of practising chartered accountants, and the International Association of Professional Accountants (IAPA), a global association comprising 230 separate and independently managed accountancy firms with offices in more than 50 countries.

www.pricebailey.gg

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Insolvency Guide

Insolvency Guide INSOL Europe Prof. Dr Daniel Staehelin President of INSOL Europe Partner - Kellerhals Law Firm, Switzerland Tel: +41 58 200 30 00 daniel.staehelin@kellerhals.ch www.insol-europe.org

INSOL Europe is the leading European organisation of professionals specialising in insolvency, bankruptcy, business reconstruction and recovery. With more than 1,150 members across 48 countries and territories, it makes a significant contribution to the work of European and international official bodies on insolvency, bankruptcy and business recovery. Its members are made up of lawyers, accountants, judges, regulators, lenders, academics and bankers. INSOL International is a worldwide federation of national associations for accountants and lawyers who specialise in turnaround and insolvency. There are currently 43 member associations and INSOL Europe is one of 12 based in Europe. INSOL Europe is a compulsory organisation of INSOL International, which means that every member of INSOL Europe automatically receives INSOL International membership benefits. In most European countries the only way to become a member of INSOL International is to become a member of INSOL Europe. It is one of the largest membership associations of INSOL International and has a reserved seat in the Board of Directors which is currently held by its immediate past president, Jim Luby. Prof. Dr Daniel Staehelin, president of INSOL Europe, noted: “One of the pillars of our association is the referrals and they are in a good state, especially among long standing members who know each other well from attending many conferences together. The main reason to give a referral to another firm or person is still that you know them personally and this can be done at our conferences, particularly our Annual Congress.” INSOL Europe holds international and regional events throughout Europe, making networking easy for its members and helping in the exchange of professional experience across borders. Every year INSOL Europe’s conferences include an event with an Eastern Europe focus, academic conferences and the main Annual Congress, which this year is held in Paris in September. Dr Staehelin commented: “We ensure that our conferences provide a forum for members to learn about new developments, exchange ideas and network. “INSOL Europe members have the opportunity to join our specialist groups, which include the Academic Forum, the Anti-Fraud Forum, the East European Countries’ Committee (EECC), the Judicial Wing, the Lenders Group and the Turnaround Wing. A recent addition to these groups is the Young Members’ Group which has received a very positive initial take-up.” INSOL Europe also provides members with all the latest industry news. This is available to them via an online newsfeed which is fed by more than 50 specialist, national and international news sources. Certain stories are then tweeted to its twitter followers and members receive a regular email with the top five European stories of the week. The monthly e-newsletter provides members with an update on news from within the industry, the association itself and includes special membership offers on events, publications and other opportunities.

Regarding recent developments on the regulator side of insolvency, an important development is the proposed amendment of the insolvency regulation by the European Commission, which will have an effect on everybody working on cross-border cases. In addition, due to the flooding of money from the ECB (European Central Bank), many companies who, under normal circumstances would have gone into insolvency, managed to survive. They are referred to as zombie companies. Eurofenix, INSOL Europe’s quarterly journal, offers case studies based on national substantial insolvency law and European law regarding cross-border insolvencies. On both these levels Eurofenix provides case studies and is the organisation’s flagship publication, which is distributed widely within the industry. INSOL Europe also offers a range of publications in its Technical Series, arising from events organised by its Academic Forum and Judicial Wing. Dr Staehelin added: “As ever, we are busy organising our range of events and, over the next 12 months, we are focusing on producing our Annual Congress as well as planning for all our future events. This year our Annual Congress is being held at The Hyatt Regency Paris Etoile, on the 26th to the 29th September. It is looking to be a popular event already and with an informative technical programme, impressive keynote speakers and a spectacular location, we are hoping for another sell-out event. “A great deal of planning and organisation is already going into our future events for the coming years which, so far, sees INSOL Europe hosting conferences in Prague and Istanbul in 2014 and Berlin in 2015. “Another key objective is to gain new members from the southern part of Europe, and we have appointed existing members as ambassadors to gain new members in this region. It is a continual aim to grow our young membership and the recently formed new specialist group, the Young Members’ Committee, will ensure this work will continue. “Although we are already involved, this year we are looking to strengthen our influence within the EU and have appointed a key group responsible for achieving this. The goal is to become an appreciated contact and resource for the EU in the areas of restructuring and insolvency.”

INSOL Europe holds international and regional events throughout Europe, making networking easy for its members and helping in the exchange of professional experience across borders.

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Insolvency Guide Germany - bunk-alliance Rechtsanwaltsgesellschaft mbH

Dr Artur Bunk MLE Executive Director Tel: +49 69 945 190 030 secretary@bunk-alliance.de www.bunk-alliance.de

Over the last few years, BLPA bunk-alliance has provided insolvency and restructuring related advice to local and foreign shareholders, directors of companies and banks, as well as insolvency practitioners with cross-border related matters. With its associated partner firms, it provides legal advisory and consulting services, specialising in foreign clients entering the markets of Germany and Poland. Dr Artur Bunk, bunk-alliance executive director, qualified for the German bar in 1995. During his career with BLPA bunk-alliance, he has specialised in cross-border insolvency and restructuring issues. He has assisted insolvency administrators in some major international restructurings, representing their interests and managing their affairs in their non-German subsidiaries. He noted: “Among our clients we also represent banks on insolvency related matters and provide opinions with regard to risks associated with restructuring and insolvency issues, as well as establishing and executing security liens and mortgages. “Another branch of our advice relates to company directors and shareholders, where I’m advising them on potential risks associated with restructuring and insolvency proceedings.”

Despite the relatively robust condition of the German economy, the firm has seen an increase in restructuring and insolvency matters. This is partly due to the impact of the global economic crisis on export-orientated German enterprises, and partly due to the changes introduced in 2012 by the ESUG reform. Due to the reform, it became possible to prepare controlled insolvency proceedings to an extent never before possible. ESUG has made the filing for insolvency more predictable and reliable – companies start to realise that they now have a real chance for a new start with a restructuring. For the first time, the appointment of an insolvency administrator by the court becomes predictable and, within the given limits, the company may choose the future expert. This enhances the preparation process and the predictability of the outcome significantly. Dr Bunk commented: “We have seen major restructurings in the area of consumer retail. It almost looks as if problems were piling up in this area for years before the managements of some of the companies decided to take action to clean up their balance sheet. We have also started seeing the impact of the global crisis on export-orientated businesses in Germany.” If and when funding is available, the alternative to insolvency – an outof-court restructuring – becomes viable. Sometimes a financial restructuring of the obligations and receivables might suffice. Many companies carry forward a substantial amount of open receivables, and a proper management of invoicing and collection might release additional cash. Dr Bunk added: “In our experience, banks are often also open to renegotiate existing repayment schedules if they are approached in due time. Factoring tools might be put in place and sale-and-lease back transactions can also provide release. But a timely approach is always crucial because, as a rule, the implementation of those tools always takes longer than previously expected. A combination of those tools, when properly and timely implemented, can often avoid formal proceedings.”

Italy - STUDIO LEGALE DE SENSI

Prof. Avv. Vincenzo De Sensi Founder Tel: +39/064871829 vdesensi@studiodesensi.it

STUDIO LEGALE DE SENSI operates as adviser to clients in all fields of national and international insolvency law. This includes investment banks, distressed firms, lending banks, insolvency administrators, private equity, hedge funds, bondholders, national and international companies, individual creditors and directors. The firm assists creditors in regards to the enforcement and protection of their claims throughout bankruptcy and any kind of alternative restructuring procedures. In particular, it has been involved in the complex extraordinary administrations of Alitalia and Cirio. During such procedures, the firm has assisted its clients in the submission, lodging and safeguarding of their claims before the competent authorities. Prof. Avv. Vincenzo De Sensi, STUDIO LEGALE DE SENSI founder, commented: “We have offered our legal assistance in some of the most complex insolvencies and restructurings of recent years. Our service is particularly tailored for clients seeking to proactively preserve value in distressed firms, secure enforcement of creditors’ rights, and manage exposure to insolvency and restructuring procedures as a whole. Our technical expertise and academic background is combined with a strong commercial approach and a genuine understanding of the clients’ business interests in

facing distress effectively. “Competition in Italy is very tough. During distress, we aim to eliminate unnecessary costs and expenses to clients. Our boutique-like approach is tailored and unique to each client’s needs in any kind of situation. To this end our offer is not limited to standardised options but includes innovative and suitable solutions elaborated thanks to our deep knowledge of the current legal and economic background. This approach gives us a real chance to obtain better results compared to our competitors.” The Italian insolvency laws have changed radically over the last decade. Since 2005, pushed by the crisis of large Italian firms such as Parmalat, Cirio and Alitalia, the Italian legislature has introduced tools aimed at preserving the debtor’s assets value effectively to the benefit of all the parties involved. The Italian Law no. 134/2012 – conversion law of Law Decree no. 83/2012, ‘Development Decree’ – has further reinforced this approach by making the Italian restructurings market more attractive to investors and cross-border restructurings in general. This has been incentivised by use of alternative restructuring procedures that are now becoming effective tools to promote protection of debtor assets throughout the crisis. In particular, reference is made to the new provisions concerning the preventative composition with creditors (concordato preventivo), the restructuring agreements (accordi di ristrutturazione), and the restructuring plans (piani di risanamento), respectively provided for under articles 160, 182-bis and 67, paragraph 3 lett. (d), of Bankruptcy Law. Prof. De Sensi concluded: “During the next months we will likely see more restructurings within the Italian market. This is due to attractiveness of the new provisions set forth by the Bankruptcy Law. “Meanwhile, we expect that Italian courts and practitioners will get more and more used to such new restructuring tools and procedures to face distress more effectively and at an earlier stage, prior to the actual rise of insolvency.”

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Insolvency Guide Japan - ANDERSON MORI & TOMOTSUNE

Kazuaki Nagai Partner Tel: +81 3 6888 1051 kazuaki.nagai@amt-law.com www.amt-law.com

Nobuyuki Maeyama Partner Tel: +81 3 6888 1071 nobuyuki.maeyama@amt-law.com www.amt-law.com

Anderson Mori & Tomotsune (AM&T) has extensive experience in many aspects of insolvency proceedings under Japanese law. The firm frequently assists and advises clients on creditor rights issues in corporate reorganisation (kaisha kosei), civil rehabilitation (minji saisei), bankruptcy (hasan), and special liquidation (tokubetsu seisan) proceedings as well as various out-of-court workouts between creditors and borrowers. The firm also advises on pre-application projects to design bankruptcy remote structures for transactions such as structured finance, netting and stock lending and other security arrangements. Within the context of insolvency proceedings and workouts, the firm has assisted and advised many sponsors, with particular expertise in merger and acquisition projects, including structuring and due diligence. The firm also assists in the debtors in various aspects, including filing petitions for commencement of insolvency proceedings to the court. AM&T has handled mergers and acquisitions projects and projects to design bankruptcy remote structures for transactions such as structured finance,

netting, stock lending and other security arrangements. The firm can provide a one-stop shop service and clients can benefit from AM&T’s extensive experience, particularly in the turnaround field. Kazuaki Nagai, AM&T partner, commented: “Our firm has had the privilege of representing overseas companies for more than 50 years in establishing their operations in Japan and advising them on their activities. “Working together with an overseas firm, our firm is more than capable of handling international insolvency proceedings by representing creditors in Japan vis-à-vis overseas companies.” Nobuyuki Maeyama, AM&T partner, noted that instead of going through an insolvency procedure, distressed businesses in Japan can avail of alternative methods of fundraising, including without limitation, under the Moratorium Act of Japan (Law No. 96 of 2009) (the Moratorium Act), which is a temporary legislation, and the credit guarantee program for small and medium sized companies (the CGP), which is also temporary measures. He said: “The Moratorium Act sets forth provisions as to how financial institutions should respond to applications made by small and medium sized companies (SMCs) to mitigate their repayment obligations in relation to loans taken out for business purposes when they are facing difficulties in meeting such obligations. Meanwhile, the CGP is a program that allows SMCs to get loans easily by virtue of a guarantee provided by the Credit Guarantee Association.” There have been several reforms instituted in Japan in the last 10 years. For example, procedures relating to corporate reorganisation (kaisha kosei) and bankruptcy (hasan) were amended in order to ensure the swift and reasonable resolution of insolvency proceedings. In addition, the Civil Rehabilitation Act was enacted to improve the accessibility of rehabilitation procedures by allowing both corporations and individuals to undergo civil rehabilitation (minji saisei). Mr Maeyama added: “Moreover, voluntary liquidation proceedings were likewise improved, particularly the promotion of ADR for corporate rehabilitation, and the establishment of guidelines for voluntary liquidation proceedings and the Enterprise Turnaround Initiative Corporation of Japan, all of which are aimed at facilitating a turnaround and the reconstruction of the economy.”

Mexico - Cervantes Sainz, S.C. bondholder representation. Alejandro Sainz is the co-managing partner, chairman of the insolvency and restructurings practice group and co-chair of the mergers & acquisitions practice group at Cervantez Sainz. He represents national and multinational Alejandro Sainz, Esq. Co-Managing Partner clients in a broad range of transactional matters, providing legal advice in Tel: +52 55 9178-5046 the areas of corporate, finance and commercial law, including reorganisaasainz@cervantessainz.com tions, restructurings and work-outs, bankruptcy and cross-border insolvency www.cervantessainz.com procedures (concursos), corporate finance, mergers and acquisitions, foreign investment, joint ventures, and infrastructure, real estate, gaming Cervantes Sainz, S.C. is a full service law firm actively engaged in a and telecommunications transactions. dynamic and complex domestic and international practice. The firm is He noted: “Cervantes Sainz has proven efficiency in a wide range of composed of prestigious lawyers accumulating many years of expericomplex and critical cross-border restructuring and insolvency matters ence, who ventured to form and achieve an innovative style or organisa- involving issues of unsecured creditors, secured creditors, derivatives, and tion. Its rapid and constant growth reflects the dynamic nature of a vital domestic and foreign claims. and healthy developing law firm. “Our litigation practice has the intellectual depth and creativity to resolve successfully virtually any type of legal dispute arising in Mexico, including domestic Cervantes Sainz has an active and diversified insolvency and restructuring and cross-border insolvency and bankruptcy matters and litigation.” practice, including: work-outs; restructurings; concurso procedures; crossMr Sainz explained that the first critical issue to evaluate when assessing border insolvency procedures; and bankruptcy. a distressed business is the type of creditors of the company. He said: “The The firm has worked with the most respected international law firms in nature of such creditors (secured vs. unsecured; bondholders; banks and/or devarious types of cross-border transactions. Cervantes Sainz provides prompt, rivatives) and the place of issuance of the debt (foreign or domestic) will result responsive, creative and expert insolvency and restructuring representation, in the company taking a different approach when dealing with such creditors.” including advising clients, domestic and foreign, in both the financial and Mr Sainz also commented that business reviews are a good idea, even for procedural aspects of insolvency and bankruptcy matters. businesses not necessarily in trouble, to ensure that they are in a healthy posiIts lawyers are admitted to practice in local and federal courts throughout tion. He said: “It is recommendable for companies to evaluate themselves prior Mexico and have substantial experience in litigating insolvency and bankto being in an imminent insolvency/restructuring scenario. In the past we had ruptcy procedures through the Concurso procedure. They have participated worked together closely with companies and their financial advisers to evaluate as expert witnesses in cross-border insolvency procedures. a potential debt restructuring. In many instances, the results of these types of Cervantes Sainz’s litigation practice benefits from its wide-ranging skills, evaluations made the company decide to approach their creditors in advance. including in the areas of insolvency and bankruptcy litigation. The firm The creditors always welcome the proactive approach of a company and negohas a very strong reputation for being fair but tough and experienced in tiations become friendlier.” Sept 2013 Corporate INTL 33

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SWEDEN

Insolvency Guide

BELGIUM

PORTUGAL

GERMANY

ITALY GREECE

NIGERIA

SOUTH AFRICA

BELGIUM - McKENNA LONG & ALDRIDGE LLP

GREECE - POTAMITIS VEKRIS

Nora Wouters Tel: +32 2 278 12 15 nwouters@mckennalong.com brussels@mckennalong.com

Stathis Potamitis Tel: +30 210 3380000 stathis.potamitis@potamitisvekris.com www.potamitisvekris.com

CAYMAN ISLANDS - WALKERS

ITALY - STUDIO LEGALE DE SENSI

Neil Lupton and Colette Wilkins Tel: +1 345 914 4286, +1 345 914 4215 neil.lupton@walkersglobal.com, colette.wilkins@walkersglobal.com www.walkersglobal.com

Prof. Avv. Vincenzo De Sensi, Founder Tel: +39/064871829 vdesensi@studiodesensi.it

GERMANY - bunk-alliance Rechtsanwaltsgesellschaft mbH

JAPAN - ANDERSON MORI & TOMOTSUNE

Dr Artur Bunk MLE, Executive Director Tel: +49 69 945 190 030 secretary@bunk-alliance.de www.bunk-alliance.de

Kazuaki Nagai, Partner Tel: +81 3 6888 1051 kazuaki.nagai@amt-law.com www.amt-law.com Nobuyuki Maeyama, Partner Tel: +81 3 6888 1071 nobuyuki.maeyama@amt-law.com www.amt-law.com

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Insolvency Guide

Insolvency Guide Map JAPAN MEXICO CAYMAN ISANDS

MEXICO - Cervantes Sainz, S.C.

SWEDEN - WISTRAND

Alejandro Sainz, Esq., Co-Managing Partner Tel: +52 55 9178-5046 asainz@cervantessainz.com www.cervantessainz.com

Christian Bergqvist Tel: +46 8 50 72 00 81 christian.bergqvist@wistrand.se www.wistrand.se

NIGERIA - JACKSON, ETTI & EDU

SOUTH AFRICA - EDWARD NATHAN SONNENBERGS

Asamah Kadiri Tel: +234 014626843 asamahkadiri@jacksonettiandedu.com www.jacksonettiandedu.com

Leonard Katz Tel: +2721 410 2500 lkatz@ens.co.za www.ens.co.za

PORTUGAL - Raul César Ferreira (Herd.), S.A. M João Jorge, Chief Operating Officer Tel: +351 213 907 373 mail@rcf.pt www.rcf.pt

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Route to Austria

Route to Austria Austria is a largely mountainous country due to its location in the Alps. The Central Eastern Alps, Northern Limestone Alps and Southern Limestone Alps are all partly in Austria; meanwhile, it can be divided into five areas, the largest being the Eastern Alps, which constitute 62% of the nation’s total area. The Austrian foothills at the base of the Alps and the Carpathians account for some 12%, and the foothills in the east and areas surrounding the periphery of the Pannoni low country amount to some 12% of the total landmass. The second greater mountain area (much lower than the Alps) is situation in the north. Known as the Austrian granite plateau, it is located in the central area of the Bohemian Mass, and accounts for 10% of Austria. The Austrian portion of the Vienna basin comprises the remaining 4%.

Invest in Austria Agency www.investinaustria.at

Vienna Stock Exchange / Wiener Börse en.wienerborse.at

Austrian Venture Capital Organisation www.avco.at

Austria, with its well-developed market economy, skilled labour force, and high standard of living, is closely tied to other EU economies, especially Germany’s. Its economy features a large service sector, a sound industrial sector and a small but highly developed agricultural sector. Following several years of solid foreign demand for Austrian exports and record employment growth, the international financial crisis of 2008 and subsequent global economic downturn led to a sharp but brief recession. Austrian GDP contracted 3.8% in 2009 but saw positive growth of about 2% in 2010 and 2.7% in 2011. Growth fell to 0.6% in 2012. Unemployment did not rise as steeply in Austria as elsewhere in Europe, partly because the government subsidized reduced working hour schemes to allow companies to retain employees. The 2012 unemployment rate of 4.3% was the lowest within the EU. Stabilisation measures, stimulus spending and an income tax reform pushed the budget deficit to 4.5% in 2010 and 2.6% in 2011, from only about 0.9% in 2008. Meanwhile, the international financial crisis of 2008 caused difficulties for Austria’s largest banks whose extensive operations in central, eastern and southeastern Europe faced large losses. The government provided bank support – including, in some instances, nationalisation – to support aggregate demand and stabilise the banking system. Austria’s fiscal position compares favourably with other Eurozone countries, but it faces external risks, such as the Austrian banks’ continued exposure to Central and Eastern Europe, as well as political and economic uncertainties caused by the European sovereign debt crisis. In 2011, the government attempted to pass a constitutional amendment limiting public debt to 60% of GDP by 2020, but it was unable to obtain sufficient support in parliament and instead passed the measure as a simple law. In March 2012, the Austrian parliament approved an austerity package consisting of a mix of expenditure cuts and new revenues that will bring public finances into balance by 2016. In 2012, the budget deficit rose to 3.1% of GDP.

Mergers & Acquisitions - IMAP M&A Treuhand GmbH IMAP is a global network of independent investment banking and M&A firms with more than 500 senior experts located in more than 30 countries throughout North and South America, Western and Eastern Europe, the Middle East and Asia. These firms share common values and principles, reinforced by rigorous standards and qualifications to ensure unmatched service, quality and unequalled results. IMAP offers an exceptional combination of global breadth and local depth to the client transaction. Merger and acquisition clients from all over of the world, in all sectors and classifications, turn to IMAP for professional advice. With a rich history of innovation, collaboration and achievement, IMAP advisers work hand-in-hand to optimise the service and success for every client the firm represents. In Austria, IMAP is one of the leading mid-market M&A advisory firms and is nominated capital market coach of the Vienna stock exchange (VSE) for mid-market listings. As independent and owner-managed advisory firm, it is specialised in the design and execution of worldwide enterprise transactions in the middle-market. Dr Heinz Brasic, IMAP managing partner, added: “We see the essence of our work as a contribution to inspiration and realisation at world-class level. “We perform transaction services for our clients for local and cross-border company mergers, acquisitions, divestitures, IPOs and international equity capital-raising and orchestrate succession planning. Our service portfolio includes comprehensive analysis and strategic merger services as well as execution and assignment completion primarily in the manufacturing, service, technology and consumer goods industry.” In collaboration with its clients, IMAP firm verifies and plans strategies, risks and opportunities as well as feasibility, synergies and integration. Based

Dr Heinz Brasic Managing Partner Tel: +43.1.7982770-0 heinz.brasic@imap.co.at www.imap.co.at

on its international track record, the firm is a preferred partner of owner families, corporate executives, investors and group subsidiaries. Engagement, confidentiality and competence are the principles that have guided it through execution of client projects around the globe. Dr Brasic noted: “Relating to the second economic dip in the Eurozone since 2008, the M&A market in 2013 is still as weak as in 2012, if not weaker. However, as one of the most successful economies in the EU, Austria has never been on the brink – with its well-placed mid-market champions and global niche players. “But the types of transactions have changed over the years, as buyers in particular pay much more attention to the post-merger integration to make mergers work. More assessment is done, during the pre-merger phase, of the extent to which identity issues might preclude successful fusion. The long-term and sustainability effects of a professional post-merger integration are likely to be highly supportive to any M&A deal.” IMAP’s strength and premium service quality continue to allow the firm to offer significant value for clients under any type of market conditions. IMAP M&A Treuhand continued to stand out in 2012 and ranked No. 2 in Austria for completed transactions with values up to $200 million (source: Thomson Reuters).

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Route to Austria

Arbitration Law - PHHV Prochaska Heine Havranek Vavrovsky Rechtsanwälte GmbH

PHHV Prochaska Heine Havranek Vavrovsky Rechtsanwälte GmbH is one of the leading commercial law firms in Austria. The firm offers the highest levels of comprehensive legal and economic advice, which allows it to find solutions that are tailored to clients in content and structure. Mediation, especially in family law related issues, has a long tradition in Austria. Mediation in economic issues is also on the rise. Arbitration provides a legally binding decision. The main advantage of arbitration is the binding decision that means that the arbitral award can be enforced. However, even if the parties are capable of finding a satisfying solution in mediation, there are also cases where parties don’t comply with the solution. In these cases, the mediation is ‘idle time’. Apart from that, it should be noted that arbitration proceedings also often involve extensive settlements talks and aim at finding a satisfactory solution for both parties. Stefan Prochaska, PHHV managing partner, advised that multinational clients, especially of jurisdictions that are not part of multinational enforcement treaties, are most suited for arbitration over other techniques of alternative dispute resolution (ADR). He said: “In the absence of an enforcement treaty, decisions from statutory courts can often not be enforced in foreign countries. However, many countries are party to the ‘New York Convention’ – on the recognition and enforcement of Foreign Arbitral Awards – which allows for arbitral awards to be enforced abroad.” In international deals, arbitration clauses are commonly used, although the Austrian civil litigation system has a high reputation. Since in many

Stefan Prochaska Managing Partner Tel: +43 676897008808 prochaska@phhv.at www.phhv.at

cases an arbitration clause is considered a ‘standard clause’ in a contract, many disputes in connection with commercial contracts are subject to arbitration proceedings. Foreign investors frequently rather trust in arbitration proceedings than in statutory court proceedings. The number of court cases in this jurisdiction is declining, but there is no sufficient proof that this is linked to the rising demand on arbitration. In some cases, the judges in statutory proceedings propose to initiate a mediation proceeding. But, in the firm’s experience, in a few weeks or months the parties find themselves before the same judge again to continue the proceeding. Mr Prochaska predicted an increased use of arbitration in Austria in the coming months. He noted: “I expect an increase in the levels of arbitration due to its advantages mentioned above and the excellent reputation of the Vienna Arbitral Center, although the above mentioned decision of the SAC might hinder this. Since arbitration proceedings are in most cases much more expensive than statutory proceedings, additional costs for settlements could definitely influence the decision to agree upon an arbitration clause.”

Private Equity Law - PHHV Prochaska Heine Havranek Vavrovsky Rechtsanwälte GmbH PHHV is a full service law firm headquartered in Vienna. It provides tailor made solutions to clients and believes that understanding the client’s business is of crucial importance for providing high quality advice. In private equity transactions, the firm is primarily involved in complex and high profile cases and transactions requiring sector specific and senior advice. It has been representing several of the most prominent Austrian private equity funds for more than 10 years and even has partners in its rows who have acted on the management board of private equity funds. Dr Rainer Kaspar LL.M, PHHV partner, noted: “Our commercial approach is what distinguishes us from most of our competitors. This is not only highly valued by our client but enables us to look at deals differently from a fees perspective. While we still offer regular hourly rates, we often offer success orientated fee models which help clients to better budget their expenses. “When doing cross border private equity deals it is of utmost importance to understand the other party’s mind set and regulatory framework. Only when achieving this, you will be able to negotiate a good deal for your client.” Dr Kaspar started his career as a banking and finance lawyer, but soon changed his focus to M&A and private equity. Since then, he has been involved in some of the most prominent M&A and private equity transactions of the recent past in Austria, and has become familiar with most of the Austrian private equity market. As a former banking and finance lawyer, Dr Kaspar also understands financing requirements and technicalities and is therefore able to comprehensively advise his clients on all areas of a private equity deal. His

Dr Rainer Kaspar LL.M. (Michigan) Partner Tel: +43 676 897 008 842 kaspar@phhv.at www.phhv.at

client base is mostly made up of national private equity funds, but has broadened recently and now also includes several international private equity houses. He commented: “I just recently acted for a prominent Austrian private equity house in the sale of a distressed company. The challenging part was to negotiate a deal with a potential purchaser and meanwhile keep the banks appeased. Time was of the essence and we finally successfully sold the company which satisfied the banks.” Dr Kaspar is also active in both the IBA and AIJA and regularly speaks on private equity related topics in both organisations. He holds lectures on specific areas of private equity at the Vienna University of Economics and Business (Wirtschaftsuniversität Wien) and other professional educational organisations. He added: “Austrian private equity is still in the credit crisis bear hug. While the market is still slow, it appears to be recovering since the beginning of this year. We have seen ample movement recently and are expecting several more big ticket deals to go through still this year.” Sept 2013 Corporate INTL 37

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Route to Austria

Patent Law - WILDHACK & JELLINEK Patent Attorneys

WILDHACK & JELLINEK Patent Attorneys and its international network have been in existence for 50 years. The firm has the advantage of a young generation of attorneys combined with seasoned senior attorneys and technical consultants who cover the major technical fields. These include chemistry (A Wildhack, G Jellinek), pharmaceutics (A Wildhack, G Jellinek), electrical engineering and computer-implemented inventions (M Stadler), mechanical engineering (A Kaser) and physics. Andreas Wildhack, WILDHACK & JELLINEK senior partner, is admitted as an Austrian and European patent, trademark and design attorney, and has more than 10 years of professional experience in IP. He advises on all aspects of IP matters, including issues before the European Patent Office (EPO), the Austrian Patent and Trademark Office (APTO), the Office for Harmonisation in the Internal Market (OHIM) and the World Intellectual Property Organisation (WIPO). Mr Wildhack’s practice encompasses the prosecution of patents, utility models and supplementary protection certificates, as well as trademarks and designs. It also includes opposition and appeal proceedings before the EPO and nullity and opposition proceedings before the APTO and the Austrian Supreme Patent and Trademark Chamber. He also handles related patent infringement litigation in civil proceedings. Mr Wildhack is experienced in the fields of pharmaceuticals, chemistry and life sciences. He has been involved in several patent infringement proceedings, especially regarding pharmaceuticals and has acted as international coordinator in pharma cross-border patent litigation for generic

Andreas Wildhack (Dr techn., Dipl.-Ing.) Austrian and European Patent, Trademark & Design Attorney; Senior Partner Tel: +43 1 712 1001 office@wildhack.at / a.wildhack@wildhack.at www.wildhack.at

companies. His memberships include: AIPPI, EPI, LIDC, ÖV and executive board member of the Professional Association of Austrian Patent Attorneys. He studied Technical Chemistry/Biotechnology and graduated from the Technical University of Vienna and Lunds Tekniska Högskola LTH (Sweden) (Dr techn, Dipl.-Ing.). Mr Wildhack noted: “Patent law in Austria is to some extent similar to patent law in Germany. However there are still decisive differences, in substantive law as well as in case law. Litigation is comparably very cheap compared to most other jurisdictions especially United Kingdom, the Netherlands or Sweden, but also less expensive than in Germany. The courts have highly qualified and specialised IP senates (in nullity proceedings as well as in civil proceedings). Preliminary Injunction (PI) proceedings are fast, so Austria is a good country to test a case first before taking it to other jurisdictions. “A new Patent Act in Austria will be in force in 2014 with major changes especially regarding nullity and appeal proceedings. The Unified Patent Court (UPC) and the ‘EU-patent’ will likely enter into force in 2015.”

Transaction Law - Hasberger Seitz & Partner Rechtsanwälte GmbH Hasberger Seitz & Partner Rechtsanwälte GmbH is an Austrian law firm based in Vienna, with a strong international focus. It is a member of Geneva Group International (GGI), a leading international network for independent law, accounting, audit and consulting firms. The firm’s activity is centred on the interests of its clients. It offers a service that is tailored fully to the client’s needs, to meet the requirements of both businesses and private individuals. It is helped to provide this service by an external team of trusted experts, including a tax consultant, notary public and real estate specialist. Hasberger Seitz & Partner’s in-house practitioners cover the following fields of law: banking, finance and capital markets; building, real estate and project development; civil law; competition law; contract law; copyrights and trademarks; corporate law; IT, computing and the Internet; employment; mergers & acquisitions; tenancy and occupancy law; residency law; and public law. Dr Peter Wagesreiter has been a partner at Hasberger Seitz & Partner since 2002. His specialist areas are international transaction law, M&A and corporate law. The key industries he works in are tourism, white goods, the metal working industry (cable and wiring), the telecommunications industry and the banking industry. He has been lead counsel on many of the firm’s major transactions. These include: the acquisition of a cable and wire producing company of the VA TECH Group by an international client, the acquisition of a metal parts producing company by an Austrian client, and the sale of a concrete producing company in the Netherlands Antilles to an international group. He has also dealt with various mergers and split-offs for Austrian/German clients. Regarding new trends in transaction law, Dr Wagesreiter noted: “In M&A

Dr Peter Wagesreiter Partner Tel: +43 1 533 0 533-415 wagesreiter@hsp-law.at www.hsp-law.at

transactions we see that transaction insurance (Warranty & Indemnity – W&I) is offered. W&I insurance is possible for both purchaser (indemnity based claims) and seller (contractual based reps and warranties claims).” A core part of Hasberger Seitz & Partner’s business is advising on national and international company acquisitions, in the form of share deals, asset deals and mergers. In this area the firm is also involved in transactions, private equity and venture capital transactions, strategic alliances and joint ventures. Dr Wagesreiter commented: “In a recent sale of a cable and wire producing company group (with subsidiaries in Austria, India, China, US) to a private equity fund, even though the applicability of Austrian law to the transaction was agreed, still several local legal issues had to be solved in compliance with the local law. Due to the international education of our lawyers (especially as regards the Anglo-American legal system) we could meaningfully coordinate the foreign law advice by local counsel.” Currently there is a very active market for transactions in the tourism industry in Austria. While Hasberger Seitz & Partner is already acting as counsel in several transactions, the firm plans to further increase its work in the tourism industry.

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Route to China

Route to China The three largest economies in Asia – China, India, and Japan – make up 27% of the world economy (measured in purchasing power parity terms). A significant structural change is taking place as Japan, once the dominant economy of the region, now stands as the fourth largest in the world, behind the US, China and India. Global rebalancing dynamics are also present in financial markets, as the fast-growing Asia Pacific region develops deeper and more diversified securities markets. Although Japan still offers the single largest equity market capitalisation within the region, China and Hong Kong combined now represent 12% of total world market capitalisation. Japan’s GDP decreased by 0.1% in the final quarter of 2012. With a drop of 1.0% in the July to September period, the economic expansion for 2012 was limited to 1.9%. The projected average growth for 2013-14 is 1.2%. As the most important export destination for Japan, purchasing 20% of Japanese exports, China’s recovery will be significant for the Japanese economy. However, tensions between China and Japan over the Senkaku Islands will continue to decrease demand for Japanese products. A Reuters poll showed that Asian economies are likely to grow faster in 2013 than the previous year. But because China’s recovery has been weaker than expected, the pace of expansion will remain subdued. The Indian economy is also expected to remain subdued in 2013. Recovery will be gradual as government spending and interest rate cuts from the Reserve Bank of India revive domestic demand. In the Reuters poll, conducted between the 8th-11th and 16th-19th of April 2013, growth estimates for China, South Korea, India and Australia were downgraded – ranging from 0.1% to 1%. Growth estimates for Thailand, Hong Kong, Malaysia, and Taiwan were upgraded. These growth rates are much higher than what is expected for developed economies in 2013. Rob Subbaraman, chief economist for Asia at Nomura in Hong Kong, commented: “This year is going to be a good growth year for Asia, par-

Shanghai Stock Exchange www.english.sse.com.cn

China Venture Capital Association www.cvca.com.hk

China Association of Private Equity www.chinacape.org/en

ticularly if ...we start to see global growth improving in the second half of the year.” According to analysts, the recent drop in commodity prices will help Asian economies, which are some of the biggest importers of oil, base and precious metals such as iron and gold, by allowing their central banks to loosen policy. Mr Subbaraman added: “Even with Asian exports being quite soft at the moment it’s been buffered, in the coming months, by cheaper commodities that Asia will import.” But he warned that excessive monetary policy easing could hurt the region. He noted: “The risk for Asia is if policymakers are too short sighted and do not focus on the financial imbalances and asset prices, and keep policies very loose. It will be good for growth this year but it does raise the risk of problems down the road.” Australia will maintain relatively fast rates of economic growth in comparison to many of the other advanced economies, despite the fact that the approaching peak in resource investment will slow the country’s growth prospects. The real GDP is expected to increase by almost 3% annually through 2014, after increasing by 3.6% in 2012, which was the strongest pace of expansion over the past five years. The services sector is still the largest part of the Australian economy, accounting for 70% of GDP and 75% of jobs. Though, the resources sector continues drive the economy. Exports in this sector are performing well, which reflects the gradual recovery of the Chinese economy. China purchases almost 30% of Australian exports. This strong demand is counterbalancing the impact of economic weakness in Japan, which purchases around 20%. In addition, major investments, such as the US$40 billion Gorgon Liquid Natural Gas project, will significantly expand this sector. A drought affecting the North Island is likely to affect the growth of the economy in 2013. Finance Minister Bill England said that the drought could shave 1% growth this year as dry weather hits the dairy industry, the country’s biggest export earner.

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Route to China

Competition Law - Guangsheng & Partners, PRC Lawyers

Guangsheng & Partners, P.R.C Lawyers is one of the largest law firms in China. It originated from the China Legal Affairs Center, established in 1985, which is directly affiliated with the PRC Ministry of Justice. The firm commenced its present partnership system in 1996. It has a branch office in Shanghai, and now has more than 180 lawyers and paralegals in Beijing, as well as a branch office in Shanghai. Most partners at the firm have more than 10 years’ practising experience. Dr Yan Hai, senior partner, has served as a government legal counsel in the PRC Ministry of Commerce (MOFCOM) for six years. He studied in a US well-known law school and worked in a US law firm. Dr Hai noted: “The firm’s lawyers provide domestic and foreign clients with a full range of highly specialised legal services in the areas of banking & financing, corporations, securities, mergers & acquisition, real estate, VC/ PE investment, international trade (anti-dumping), intellectual property and commercial arbitration & litigation.” Guangsheng & Partners PRC lawyers have many years’ practice experience in China mainland, and are familiar with the Chinese legal environment. Furthermore, they have interdisciplinary professional background so that satisfactory results for the customers would be made quickly and efficiently. Anti-trust competition is a main business area of Guangsheng & Partners. Regarding the legal measures that companies can put in place to ensure compliance with China’s competition rules, Dr Hai commented: “The inhouse counsel of a company shall be familiar with legal requirements under competition law. When a company engages an M&A in China, professional advice from an experienced lawyer is necessary to ensure compliance with

Dr Yan Hai Senior partner Tel: +8610-13671129501 / +8610-59670325 yh@gslaw.com.cn www.gslaw.com.cn/cn

relevant laws. “If an M&A, in violation of the provisions of this law, implements concentration, the authority for enforcement of the Anti-monopoly Law under the State Council will instruct to discontinue such concentration. Parties to the deal will also be instructed to dispose of their shares or assets, transfer the business and adopt other necessary measures to return to the state prior to the concentration – and it may also impose a fine.” Dr Hai also explained that if an M&A project based in China reaches the threshold level set by the State Council, the relevant party shall declare in advance to the authority for enforcement of the Anti-monopoly Law under the State Council. Without such declaration the M&A shall not be implemented. If potential national security issues arise during cross-border M&A transactions, such matters shall be subject to review on national security, as is required by the relevant State regulations. This is an addition to a review of undertakings in accordance with the Anti-monopoly Law. However, under certain circumstances, M&A may dispense with declaration to the authority for enforcement of the Anti-monopoly Law under the State Council.

Data Protection - Hunton & Williams LLP Hunton & Williams LLP is an internationally recognised leader in the data privacy field. The firm is quickly able to form seamless cross-border, inter-office teams that include lawyers of appropriate skills who are suited to the particular needs of a given client and situation. Manuel E Maisog, Hunton & Williams partner and chief representative, noted: “Our firm’s data protection legal practice is recognised as the leader in its field. As a result, the most challenging and novel questions that arise in the field regularly find their way to the desks of our firm’s lawyers. Our lawyers have contributed to the development of the industry from their position at its forefront.” In addition, Hunton & Williams is home to the Centre for Information Policy Leadership. The Centre provides leadership for the development of innovative, pragmatic approaches to privacy and information security. It has participated in work at the Organization for Economic Cooperation and Development and the Asia Pacific Economic Cooperation process, and has addressed such issues as accountability, cross-border data transfers, conflicting national legal requirements, and government use of private sector data. Many of the lawyers at Hunton & Williams are also principals in the centre and in that capacity participate in work sponsored by the centre. Mr Maisog commented: “This also keeps our lawyers at the forefront of industry development.” The data protection framework in China is still developing on a patchwork basis without an overarching, coordinated national data protection law. As such, a foreign investor entering China has to not only be aware of the current data privacy requirements, but must also bring the flexibility that is necessary to respond to changes over time in China’s data privacy framework.

Manuel E Maisog Partner and Chief Representative Tel: +86-10-5863-7500 bmaisog@hunton.com www.hunton.com

Some enterprises may have operating structures that were established for operations in their home countries. These operating structures may have to be modified when these enterprises extend their operations to China. For instance, local rules in China may require that operations be conducted by separately incorporated entities and these may be subject to local ownership and control requirements. In addition, there may be particular licensing requirements in China that are not also required by national legislation in the home countries. Taken together, these differing local requirements can require an enterprise to re-examine and restructure its operating structures so as to comply with local laws. Mr Maisog commented: “With the adoption of new data privacy legislation by many countries in the Asia-Pacific region, data protection requirements are no longer specific solely to Western countries. Our clients are becoming increasingly aware of issues arising out of personal information protection concerns in Asian business transactions. When these clients work with our Asian offices to address these issues, they will be pleased to find that our Asian offices offer the same dedication to client service for which our firm is well known in our home jurisdictions.”

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Route to Germany As Europe’s largest economy and second most populous nation, Germany is a key member of the continent’s economic, political, and defence organisations.

and private wealth will probably continue to shrink in most member states, as property prices have to fall further. All in all, GDP is forecast to be 0.2 % higher in 2013 than in 2012, from the previously forecast growth of 0.7%. The situation should slightly improve in 2014, with an expected GDP growth of about 1.1%. However, this will not be sufficient to lower the unemployment rate, which actually could further increase to about 12.6%. “Inflation expectations for 2013 have moderated to a y-o-y rate of 1.6% due to a reduction in expected energy inflation in the last months. Inflation should remain subdued also in 2014, at about 1.5%. Thus, the ECB can keep its expansive course for the foreseeable future, but we expect no further interest rate cuts in the short to medium term.”

The German government has said that its economy will grow 0.5% in 2013. The German Economy Ministry has forecast solid growth of 1.6% in 2014. German Economy Minister Philipp Roesler said: “There is every reason to look to the future with optimism. The German economy is picking up again and is successfully leaving an economic weak phase behind it.” In January 2013, the International Monetary Fund (IMF) projected that GDP Euro-wide would shrink by 0.2% in 2013. The economic reverse in the EU is much deeper on the edge, than in the centre, particularly in labour markets. In February 2013, unemployment was just 5.4% in Germany, but more than 26% in Greece and Spain. Government debts are also high on the periphery of the Eurozone. The ECB have said that a quick turnaround for the Eurozone is not in sight. An EFN report, ‘Economic outlook for the Euro area in 2013 and 2014’, stated: “Unemployment rates will continue to increase for the whole year of 2013,

German Business Portal: A Service for Foreign Companies Interested in the German Market The German Business Portal is the central contact platform that steers all inquiries about Germany through the right channels. The venture’s goal is to make Germany and its domestic market more transparent to foreign companies interested in Germany as a location for their businesses. The website was initiated by the Federal Ministry of Economics and Technology and is updated and expanded regularly. Here you can find practical information and relevant industry links in Germany. Through the GBP you can also access many government institutions, associations, Chambers of Industry and Commerce, embassies and international organisations that deal with Germany. The German Business Portal gives you access to helpful information about Germany in the following areas: Market Entry, Business Sectors, Business Contacts, Work and Your Stay in Germany.

German Business Portal at the Federal Ministry of Economics and Technology www.german-business-portal.info

Germany Trade and Invest www.gtai.com

Deutsche Börse Group deutsche-boerse.com

For more information please visit www.german-businessportal.info

Corporate IP - Patentanwälte Maikowski & Ninnemann Maikowski & Ninnemann is a patent attorney firm with offices in Berlin and Munich and strong expertise in all areas of intellectual property protection. The firm advises on all questions and concerns relating to industrial property rights, inventions, trade marks and designs, as well as the enforcement and utilisation of rights. Dr Michael Maikowski founded his patent attorney firm in the former West Berlin in 1977. Detlef Ninnemann, who had his own firm in Bremen, joined Dr Maikowski in 1989 to form a joint patent attorney firm – Maikowski & Ninnemann. Dr Wolfram H Müller, Dr Gunnar Baumgärtel, Prof Dr Felix Gross, Dr Christoph Schröder and Dr Fabian Sokolowski joined as partners in 1995, 1998, 2000, 2010 and 2012 respectively. Currently, 14 patent attorneys and European patent attorneys work at Maikowski & Ninnemann. The firm’s most important services are advice on inventions, trade marks, designs, know-how, software and licences; advice on the law regarding employees’ inventions; prosecution and litigation of patents, utility models, design patents and trade marks. The firm practises nationally in Germany, regionally in Europe, and internationally in all countries and regions throughout the world. The patent attorneys at Maikowski & Ninnemann are experienced in all areas of technology. They have broad knowledge and experience in physics, including: optics and light technology (such as optoelectronics, cameras, telescopes and lasers); medical systems technology; medical imaging and measurement technology. Electrical engineering is another area they are proficient in, including: electronics; telecommunications; semi-conductor technology, measurement and control technology; and medical technology. Also, the attorneys have vast experience in mechanical engineering, includ-

Dr Gunnar Baumgärtel Partner Tel: +49 (0)30 881 81 81 office@maikowski-ninnemann.com www.maikowski-ninnemann.com

ing: mechanics and mechatronics; plant engineering and shipbuilding; chemistry, biochemistry and biotechnology; and software. The firm represents clients before the German Patent and Trademark Office, the European Patent Office, the German Federal Patent Court, the Office for the Harmonization of the Internal Market in Alicante and other international offices regarding intellectual property protection, as well as before the courts of law. The firm has also participated in patent and trade mark infringement suits before the civil courts, in regular law suits and in preliminary injunction suits, in addition to invalidation suits before the German Federal Patent Court and the German Supreme Court; monitoring and administration of property right portfolios. Moreover, the firm handles patent, trade mark and design searches and patent translations. Dr Gunnar Baumgärtel, partner, noted: “From the beginning, the firm’s policy has been to provide direct contact between client and intellectual property expert to allow the highest levels of efficiency, and guarantee optimal strategies for protecting clients’ intellectual property. The highproficiency standard at Maikowski & Ninnemann will be retained in the future: only those who received their professional training at Maikowski & Ninnemann will become new partners of the firm, guaranteeing the high internal quality and proficiency level.” Sept 2013 Corporate INTL 41

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Route to Germany

Cross-Border M&A - Luther Rechtsanwaltsgesellschaft mbH

Luther Rechtsanwaltsgesellschaft mbH is a leading German law firm and part of a group of independent law firms in Continental Europe – each of which is one of the leading law firms in its own country. These law firms have a strong track record in cross-border projects and are engaged in an ongoing exchange of information about new market trends and legal developments. The firm has its own foreign offices, which are located at six important finance and investment centres in Europe and Asia, as well as long-standing, close relationships with business law firms in all relevant jurisdictions around the world. In addition, Luther is the German member of Taxand, a worldwide organisation of leading tax firms. Luther’s M&A specialists provide comprehensive advice on all relevant aspects of mergers and acquisitions. Services provided include: international restructuring, corporate acquisitions, private equity, privatisation and public sector. The specialists provide clients with professional advice in all phases of the transaction. They provide legal and taxation advice in complex processes including: cross-border transactions, structured bidding processes, privatisations, management buy-outs and management buy-ins, acquisition financing, private equity and venture capital investments / seed financing, pre-IPO financing and joint ventures. Susanna Fuchsbrunner, Luther partner, mainly advises on national and cross-border M&A transactions, including private equity, management buyouts, management buy-ins and management participation programmes. She also specialises in structuring complex restructurings – mergers, spin-offs

Susanna Fuchsbrunner Partner Tel: +49 69 27229 24695 susanna.fuchsbrunner@luther-lawfirm.com www.luther-lawfirm.com

and divestitures. She is among the few German lawyers who are dually qualified to practice in Germany and the US (New York). Ms Fuchsbrunner’s main clients include foreign financial investors, public and privately held companies, as well as wealthy individuals. She has advised numerous national and international investors on acquisitions and structured auctions of medium-sized companies. International groups of companies operate in fast changing regulatory, tax and operational environments. Transaction-related mergers or disposals of equity holdings in Germany and abroad are a tough challenge for company legal departments. The team at Luther has the longstanding experience and solid expertise to support its clients in the planning and implementation of their transactions or corporate restructuring measures. It has a network of experienced lawyers and tax advisers in more than 70 jurisdictions. Luther’s clients are typically from the following industries: automotive and mobility; chemicals; energy and utilities, renewable energy; financial services; food, retail and consumer products; health care and medical; infrastructure, water and waste management; insurance; logistics and shipping; mechanical and plant engineering and construction; pharmaceuticals and biotechnology; public sector; and real estate.

Insolvency Law - bunk-alliance Rechtsanwaltsgesellschaft mbH BLPA bunk-alliance and its associated partner firms provide legal advisory and consulting services, particularly to foreign clients entering the markets of Germany and Poland. Throughout the past years the firm has provided insolvency and restructuring related advice to local and foreign shareholders, directors of companies, banks and practitioners – who regularly request its services on their cross-border related matters.

Manuel E Maisog Partner and Chief Representative Tel: +86-10-5863-7500 bmaisog@hunton.com www.hunton.com

The firm’s attorneys are multilingual and usually practise law in more than one jurisdiction. So when dealing with cross-border related insolvency matters, each member of the team has practical experience in analysing the matter from more than just their own native legal regime. Dr Artur Bunk MLE, bunk-alliance executive director, commented: “In various situations we have been assisting an appointed insolvency administrator in the legal and practical management of foreign subsidiaries of the insolvent company. We have also been assisting banks in the establishment of cross-border security pledges and mortgages, and advising them on certain risks of claw-back provisions. “We are currently assisting an appointed insolvency administrator in the recovery of substantial assets, which were removed from the estate prior to insolvency. In another case, we have been shielding the management of a company from potential risks associated with an out-of-court restructuring. “A tool used quite often in distressed M&A situations is that of a so-called ‘übertragende Sanierung’, whereby the existing business and assets are transferred to a newly formed corporate body, leaving the debt and obligations behind. When properly used, this can be a safe and convenient tool for the restructuring of existing businesses or their implementation into a new ownership.” There are no official statistics regarding avoiding the insolvency process all

together because out-of-court restructurings are not published, and the most successful ones are not disclosed. However, in a typical case where all the debt is in the possession of banks, and the business does not need an overhaul on the operational side, most businesses are restructured out of court rather than in formal proceedings. When restructuring out-of-court debt reductions, extension of payments, reduction of interest rates, and debt-to-equity swaps, essentially all instruments of a restructuring are a viable option. The main difference, however, is that those instruments may only be applied on a voluntary basis in cooperation and agreement with the creditors. But the pressure in the face of a potential insolvency tends to increase the flexibility of creditors. Regarding the next 12 months, Mr Bunk said: “We expect an increase as to the level of insolvencies. Despite the German economy staying resilient, certain businesses – especially those focused on the south-European markets – are suffering. Besides, the more companies that realise the full potential of the ESUG reform, the more usage they will make of it in order to get rid of old burdens and ensure a fresh start. “Further, an important amendment to the law on private insolvency will come into force in 2014. This should make the filing of a private insolvency proceeding more attractive, and easier to comply with.”

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Route to India

Route to India The Indian economy has performed well in recent years, but high inflation and current account deficits could be the cause some of the country’s recent economic tumult. India’s student population could grow from 12 million students to 30 million by 2025; meanwhile, the Eastern country’s government wishes to increase the resources of its educational facilities to accompany the proportion of the population going to university for 12 % at present to 30% by 2025. One of the subjects that is studied widely in India is Law. The national Law University of India is one of these organisations. India litigation law is heavily based on British common law. This is a result of the influence left over from British colonial rule in the 19th and 20th centuries. The constitution of India was adopted on the 26th of November 1949 and came into effect on the 26th of January 1950, proclaiming India to be a sovereign, democratic republic. Despite its independence, some of the English legal traditions are still in place today, and contemporary Indian law is heavily influenced by the laws of Europe and America. The laws of colonies that have separated themselves from British rule in particular have been a strong influence as laws from Ireland, the United States and France are blended to get a complete set of Indian laws as they currently stand. When it comes to the universal themes of the environment and human rights, India takes its legal cue from the United Nations. The modern laws that concern matters of trade and intellectual property are also in place in India. India is a federal union of states comprised of 18 states and seven union territories. Unlike the states of India, which have their own elected governments, union territories are ruled directly by the federal government. An administrator is appointed by the president to govern these non-state territories. Similar to the federal structure of the US, each state drafts its own laws but similarities and overlaps can often occur among states. Tax rates differ from state to state. Citizens of all states and territories must adhere to the central government’s laws, and the rulings made by the Indian

Bombay Stock Exchange www.bseindia.com

Indian Venture Capital Association www.indiavca.org

Supreme Court as well as the laws of their immediate jurisdiction. Meanwhile, India is developing into an open-market economy, yet traces of its past policies remain. Economic liberalisation measures, including industrial regulation, privatisation of state-owned enterprises, and reduced controls on foreign trade and investment, began in the early 1990s. They have served to accelerate the country’s growth, which has averaged under 7% per year since 1997. India’s diverse economy encompasses traditional village farming, modern agriculture, handicrafts, a wide range of modern industries and a multitude of services. Slightly more than half of the work force is in agriculture, but services are the major source of economic growth, accounting for nearly two-thirds of India’s output, with less than one-third of its labour force. India has capitalised on its large educated English-speaking population to become a major exporter of information technology services, business outsourcing services and software workers. In 2010, the Indian economy rebounded robustly from the global financial crisis – in large part because of strong domestic demand – and growth exceeded 8% year-on-year in real terms. However, India’s economic growth began slowing in 2011 because of a slowdown in government spending and a decline in investment, caused by investor pessimism about the government’s commitment to further economic reforms and about the global situation. High international crude prices have exacerbated the government’s fuel subsidy expenditures, contributing to a higher fiscal deficit and a worsening current account deficit. In late 2012, the Indian government announced additional reforms and deficit reduction measures to reverse India’s slowdown, including allowing higher levels of foreign participation in direct investment in the economy. The outlook for India’s medium-term growth is positive due to a young population and corresponding low dependency ratio, healthy savings and investment rates, as well as increasing integration into the global economy. India has many long term challenges that it has yet to fully address, including poverty, corruption, violence and discrimination against women and girls, an inefficient power generation and distribution system, ineffective enforcement of intellectual property rights, decades-long civil litigation dockets, inadequate transport and agricultural infrastructure, limited non-agricultural employment opportunities, inadequate availability of quality basic and higher education, and accommodating rural-to-urban migration.

Business Knowledge Resource Online www.business.gov.in

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Route to India

Commercial Law - RNClegal / Rajinder Narain & Co.

RNClegal / Rajinder Narain & Co., one of India’s prestigious firms, is an avocat de confiance of Switzerland in India and regularly acts for major corporations, overseas banks and financial institutions based in the EU, US, Australia and South East Asia. The firm is consulted regularly by government entities and embassies of Israel and the EU, among others. Two of its partners were elevated as Chief Justices of High Courts and one was the president of the Bar Association. The firm’s core practice areas are: mergers and acquisitions; amalgamations; divestments; joint ventures; cross-border investments; asset finance; cross-border leasing and securitisation; infrastructure projects power; telecom, oil and natural gas; construction; commercial contracts; banking; insurance; financial services; intellectual property rights; taxation; litigation; arbitration; and dispute resolution. Ravi Nath, RNClegal / Rajinder Narain & Co. partner and attorney-atlaw, has been recognised several times by Euromoney and others, as one of India’s leading lawyers in the fields of mergers & acquisitions, aviation, asset finance and cross-border issues. His areas of expertise include: structured finance & aviation law; mergers & acquisitions; general commercial; and cross-border transactions. Mr Nath is also listed in Who’s Who and Legal 500. In the years 2003 to 2004, Mr Nath served as president of the Inter Pacific Bar Association. He was the chair of the Committee of International Bar Association, London, in 2008 and now serves on its Creden-

Ravi Nath, Esq. Attorney-at-Law / Partner Tel: +91.11.4122.5000 ravi.nath@rnclegal.com www.rnclegal.com

tials Committee. Some of well known companies that he advises include: ABN, Aercap, Airbus, Aircastle, Airlease, Altana, Avolon, Barclays, Bechtel, BMW, BNP Paribas, Boeing, Bombardier, Citibank, Coface, Dassault, Deutsche Bank, Embraer, Euler, Exim, GECAS, Hermes, Honda, ILFC, Sony, Standard Chartered, UBS, US Ex-Im and United Technologies. He has rich experience, having advised on a number of joint ventures and ventures in India for some of the aforesaid clients, which are successfully operating in the country. He is frequently invited to address international gathering on investments in India. The Bar Association of India’s highest honour was conferred on Mr Nath by the chief justice and the law minister. At the invitation of the US State Department, Mr Nath, along with the president of the Bar Association of India, was invited to conduct a two day seminar on India’s commercial and corporate laws which was attended by many leading overseas lawyers. He was invited along with Mr P Chidambaram, finance minister and president of the Bar Association of India, to co-author a book on legal aspects of business in India.

Corporate Law - S Eshwar Consultants- House of Corporate and IPR Laws S Eshwar Consultants- House of Corporate and IPR Laws is one of the leading boutique law firms in India. It has expertise in corporate and business laws, contracts and agreements, intellectual property rights, transaction advisory, structuring and evaluation, legal representation and dispute resolution. The firm advises some of the leading companies in the technology, power, automotive, telecommunication and steel industries. It has successfully advised many multi-national companies in their Indian ventures and continues to support them. It is a diversified and one stop legal solution service provider to large and medium corporate houses in the following areas: the BPO industry; financial research, financial advisory & private equity; retail & hospitality; health care & contract research; mining and chemical; manufacturing; education & consulting; media houses; creative designing; infrastructure; trade organisations; government companies; and foreign multinationals. S Eshwar Consultants- House of Corporate and IPR Laws believes that the client can focus on adding value to their company while the firm takes care of the legal matters. The firm provides customised solutions based on the client’s needs. Further, it understands the tough, demanding, honest, resultorientated, self-critical ‘corporate personality’ and believes that ‘God is in the details’. Regarding the corporate and business practice area, the firm offers a variety of services which encompass a range of activities, from the formation of companies, compliance management to mergers & acquisitions, business reorganisation and reconstruction and winding-up. S Eshwar Consultants

S Eshwar Principal Consultant Tel: +91-44-42048335 seshwar@eshwars.com www.eshwars.com

has the expertise in propining expert counsel on legal issues relating to compliances, due-diligence, capital markets, administration and liquidation. Its team also assists clients in their IP protection and enforcement, before national and international forums such as WIPO. The core team at S Eshwar Consultants consists of Mr S Eshwar, the firm’s director; Mr N V Saisunder, who leads the intellectual property & real estate wing of the firm; and Mr Adit N Bhuva who has hands on experience in laws relating to capital markets and foreign investment. The firm also includes other lawyers, company secretaries and paralegals. Mr Eshwar leads the firm, which was established in 1921 when it started with litigation as its primary area of practice. In the last decade he has branched out to provide legal services in other areas. His main practice areas include: drafting & review of contracts, tender and bidding documents, mergers & acquisitions, corporate governance, liquidations & winding-up, foreign trade & international transactions and mediation. Prior to leading the firm, he headed the legal function in India for a Fortune 25 multinational company based in Japan. Mr Eshwar is a fellow member of the Institute of Company Secretaries of India and holds a bachelor’s degree in Commerce and a bachelor’s degree in Law.

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Route to India

Intellectual Property - R K Dewan & Co.

R K Dewan & Co. was established in 1942 as an IP boutique firm, essentially involved in trademarks in the beginning, and moving

into other areas of IP later on. According to Dr Mohan Dewan, the firm’s principal, it is currently the only IP boutique firm in India involved in every facet of intellectual property law, from draft-

ing of patent specifications to litigation and selection of brands to handling complex transactions. He added: “Another distinguishing factor is that our firm concentrates considerably on domestic practice.”

Dr Dewan has been in the legal profession dealing with IP law since 1973. In the field of patents, he has been involved with the Patent

Office from the beginning, when the Indian Patents Act of 1970 came into force.

He noted: “I have seen the growth of patent filings from a meagre

1,000 a year until it reached about 50,000 a year. In my career, I

have been involved with drafting and getting more than 7,000 patent applications granted for inventions from diverse fields. At the

same time, I have also been significantly involved in trademark and design prosecution as well as litigation in all aspects of IP law. In

1986, I had the opportunity to go to South Africa and teach IP law at

Dr Mohan Dewan Principal Tel: +91 (20) 66871222 +91 9823057535 dewan@rkdewanmail.com www.rkdewan.com

agency and have been significantly involved in anti-counterfeit

actions, both under the civil and criminal law. The courts, by and

large, respect trans-border IP rights and there is adequate customs protection. Recently, much of the counterfeit products have originated from outside the country.

“Our firm is expanding our anti-counterfeit division and we hope

to have a very strong team by the end of this year. Recently, after

almost six months of investigation, we located the manufacturer of a counterfeit hair dye. With the help of an order from the Bombay High Court and commissioners appointed by the court, as well as

the local police, we were able to seize

Howard College, University of

a huge quantity of counterfeit hair

Natal, which I did for five years. “I have seen the intellectual

property law maturing in India in a unique sort of way. On the one hand, there is great resis-

tance to the grant of a monopoly

right, be it for a patent, design or trademark. On the other hand,

there is great respect for quality brands, good designs and the

latest technology. The sheer size of the country makes IP legislation significantly different from other countries in South East

“Our firm is expanding our anti-counterfeit division and we hope to have a very strong team by the end of this year.”

IP owners in India are not very conscious about safeguarding their

tection of their IP only within the country. However, in very recent

times, this attitude has been changing and a significant number of R K Dewan & Co.’s clients are now considering protection of their IP

in a global manner. This is particularly true in the pharmaceutical & IT sector.

Another area that has been neglected so far is counterfeiting. This

is particularly true in respect of trademarks, and it is common to

find a whole ‘bazaar’ selling counterfeit goods. A particularly seri-

ous problem is counterfeit medicines and counterfeit spare parts of automobiles. Most anti-counterfeit actions have only skimmed the surface, and much more needs to be done in this direction.

Dr Dewan commented: “We have established an investigating

tured. The actual case from start to finish was decreed in just 33 days,

wherein the infringer agreed to the destruction of his goods and gave

an undertaking to the court not to counterfeit in the future.”

With effect from the 8th July, 2013,

India acceded to the Madrid Protocol. As a result, trademark owners outside India can designate India.

Similarly, domestic trademark ownternationally on the basis of a single

including multiple ethnicity and

intellectual property and, until recently, have been considering pro-

which these were being manufac-

ers can now protect their marks in-

Asia with unique complexities language differences.”

dye and seal the factory premises in

filing. It is still early days, however,

and so the long term implications of this accession are not clear.

Recently, India has been in the limelight in the field of patents,

particularly pharmaceutical patents. Many multinational phar-

maceutical companies have either lost their patent rights or were not able to secure patent rights for their inventions. However, in

hindsight, it is clear that this is partly because of not adopting an India-centric strategy.

Dr Dewan added: “Wisdom dictates that each jurisdiction has

its own unique set of complex laws and rules, as well as judicial

precedence. IP counsels worldwide need to take heed to tailor their IP filings, keeping in mind the unique requirements of the Indian

law. We have been advising clients precisely this, particularly in the field of patents – and this will result in our clients securing strong, enforceable rights in the Indian jurisdiction.”

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Capita Financial Group For Fund Managers who just want to manage their funds

Fund Administration can be draining on both your time and resources With more than 35 years’ industry experience, Capita Financial Group provides fund managers with fast and cost-effective third-party administration services; so you can free up your day to focus on growing your funds and business. We operate internationally with services that can be tailored to meet your requirements. To find out more about how you could benefit from working with Capita Financial Group please contact: David.Wahnon@capitafinancial.com or visit www.capitafinancial.com for further information. Capita Financial Administrators (Gibraltar) Limited, Blake House, 19C Town Range, Gibraltar. Telephone: +350 200 43339, Fax: +350 200 49450, Website: www.capitafinancial.com Licensed by the Financial Services Commission to carry on financial services business as Collective Investment Scheme Administrators under Licence number FSC00771B. Members of the Gibraltar Association of Compliance Officers (GACO) and the Gibraltar Association of Stockbrokers and Investment Managers (GASIM). Registered office as above. Registered in Gibraltar No. 89284. Part of The Capita Group Plc, 71 Victoria Street, Westminster, London SW1H 0XA.

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Intellectual Property Guide

INTELLECTUAL PROPERTY GUIDE Intellectual property (IP) protection is fundamental to a company’s success. Legal protection for the expression of creative ideas and the outcomes of scientific research is essential for the development and long term growth of business and innovation. Intellectual property encompasses the legal property rights over creations of the mind, both artistic and commercial, and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets such as musical, literary and artistic works; ideas, discoveries and inventions; as well as words, phrases, symbols and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets. For many companies, intellectual property is an extremely valuable, but not fully appreciated or understood, asset. All businesses have intellectual property, regardless of their size or sector. A company’s IP is likely to be a valuable asset. Securing and protecting it could be essential to a business’s future success. The first step to protecting and exploiting a business’s intellectual property successfully is carrying out a systematic IP audit. This is not always a straightforward task, as IP doesn’t just reside in patents held or trademarks registered. One must also consider items such as any bespoke software, written material, domain names and customer databases. The majority of IP rights provide creators of original works with economic incentive to develop and share ideas through a form of temporary monopoly. Although many of the legal principles governing intellectual property have evolved over the centuries, it was not until the late 20th century that the term ‘intellectual property’ began to be used as a unifying concept. Solicitors within this field work in a broad range of areas, but most commonly ones for which design is central to their business, such as manufacturing and the creative industries. Intellectual property essentially provides a controlled monopoly for designers to exploit. An intellectual property solicitor works on the sale and purchase of IP, its registration and licensing – as well as dealing with third-party IP claims. The International Bar Association (IBA) – William B Bunker “I don’t consider myself a patent prosecutor – rather, I am a patent strategist and IP adviser to my clients.” - William B Bunker The International Bar Association (IBA) influences the development of international law reform and shapes the future of the legal profession throughout the world. It has a membership of more than 45,000 individual lawyers and more than 200 bar associations and law societies spanning all continents. It has considerable International Bar Association (IBA) United Kingdom

London Office - Tel: +44 (0)20 7842 0090 South Korea Office - Tel: +82 2 6279 8100 Brazil Office - Tel: +55 (11) 3046 3321 William B Bunker Co-Chair - Intellectual Property and Entertainment Law Committee (IBA) / Partner at Knobbe, Martens, Olson & Bear, LLP Tel: +1 949 760 0404 bbunker@kmob.com www.ibanet.org

expertise in providing assistance to the global legal community. William B Bunker is co-chair of the Intellectual Property and Entertainment Law Committee (IBA) and a partner at Knobbe, Martens, Olson & Bear, LLP, an intellectual property law firm. He specialises in patent prosecution and other forms of intellectual property protection primarily for the medical device industry. Mr Bunker received his Juris Doctorate from the J. Reuben Clark Law School, Brigham Young University in 1978, graduating cum laude. He was admitted to the State Bar of California in 1978 and is admitted to practise before the US Patent and Trademark Office and the US District Courts in California. He is a member of the Orange County Bar Association, American Intellectual Property Law Association, and the International Bar Association. Further, Mr Bunker has been a contributing author on intellectual property law for the Los Angeles Daily Journal, including such topics as the GATT amendments to US intellectual property laws, European Community Trade Mark system, colour trademarks, doctrine of equivalents, declaratory judgement practice, etc. He has lectured on intellectual property law to the World Trade Association of San Diego, the Orange County and San Diego Patent Law Associations, San Diego’s High Technology Section of the CPA Society, the UCSD CONNECT Program on Technology and Entrepreneurship, the High Technology Section of the Orange County Bar Association, the Tax and Business Law Section of the Riverside County Bar Association, Licensing Executives Society, and the International Bar Association. Intellectual Property Around the World Globalisation and the rapid proliferation of technology have elevated the importance of IP protection for small and medium-sized enterprises (SMEs). The intangible nature of IP and the worldwide inconsistency of standard practices create challenges for international businesses wishing to protect their inventions, brands and business methods in foreign markets. Internationally, avenues to address IP infringement vary by country – and are dictated by local law. Within the EU, a uniform system of protection of IP property rights, ranging from industrial property to copyright and related rights, constitutes the foundation for creativeness and innovation. Respect of the basic principles of the internal market (the free movement of goods and services and free competition) is based on standardisation of IP at European level. Protection of IP is covered by many international conventions, most of which are implemented by the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO). Moreover, the EU possesses two important bodies to carry out its missions: the Office for Harmonisation in the International Market (OHIM), which is responsible for the registration of Community trademarks and designs, and the European Patent Office (EPO). Copyright and related rights provide an incentive for the creation of and investment in new works (music, films, print media, software, performances, broadcasts, etc) and their exploitation, thereby contributing to improved competitiveness, employment and innovation. The field of copyright is associated with important cultural, social and technological aspects, all of which have to be taken into account in formulating policy in this field. There has been significant harmonisation of the substantive copyright law to reduce barriers to trade and to adjust the framework to new forms of exploitation. Common ground is also needed with respect to the rules on the enforcement of rights, i.e. on access to justice, sanctions and remedies regarding infringements.

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Intellectual Property Guide

Australia - Spruson & Ferguson Spruson & Ferguson is a leading provider of intellectual property (IP) services across the Asia Pacific region, with offices in Sydney, Singapore and Kuala Lumpur. With a staff of 300 people, the group has firmly cemented its position as a regional IP hub offering the highest standard of service to clients throughout the Asia Pacific. The firm has provided expert representation for more than 125 years. Its clients range from entrepreneurial and emerging growth businesses to Fortune 500 companies and public sector research organisations, across all industries. David Griffith, Spruson & Ferguson managing principal, noted: “Spruson & Ferguson is consistently recognised as a leading patent and trade mark firm internationally. Among other recognitions this year, we are proud to have been awarded ‘Client Choice IP Law – Law Firm of the Year in Australia’ by Corporate INTL. “Our teams in Australia, Singapore and Malaysia form a dynamic combination of technical expertise, wealth of experience and specialist local knowledge, offering the advantages of integrated regional service delivery to our clients. With 75 professionals, our group is one of the largest in the region and includes patent attorneys, trade mark attorneys, PhD graduates, professionals with master’s degrees and qualified solicitors, as well as Australian, New Zealand, Singapore, Malaysian, European, UK, US, South African and Japanese patent attorneys.” Professional backgrounds and real industry experience in science, engineering, defence, telecommunications, finance, legal and commercial operations enables Spruson & Ferguson to provide much more than advice on the legal aspects of IP. The firm’s professionals apply

David Griffith Managing Principal Tel: +61 2 9393 0100 dgriffith@spruson.com / mail.au@spruson.com www.spruson.com

their skills and experience across all aspects of IP, including its protection, management, use, procurement, commercial assessment and exploitation, and defence and enforcement. Spruson & Ferguson (Australia) employs more than 180 people and routinely services Australia, New Zealand, Papua New Guinea and various other smaller countries in the South Pacific region, including Kiribati, Tonga, Fiji, Samoa, Solomon Islands, Tuvalu and Vanuatu. Its attorneys are qualified to act directly before the patent offices in Australia and New Zealand. From its Sydney office, the firm offers a full range of IP services, including those related to patents, trade marks, designs, IP litigation and commercialisation. With a team of 120 in its Singapore and Malaysian offices, including many technically qualified attorneys, Spruson & Ferguson (Asia) offers patent prosecution and management services in Singapore, Malaysia, Bangladesh, Brunei, Cambodia, China, Hong Kong, India, Indonesia, Laos, Macau, Mongolia, Nepal, Pakistan, Philippines, Sri Lanka, Taiwan, Thailand and Vietnam. Mr Griffith added: “As a firm, we are committed to providing solutions tailored to the individual needs of our clients, while delivering value and excellence in every aspect of our service.”

Bangladesh - Advocates IP Law Alliance Advocates IP Law Alliance is an exclusive intellectual property law firm, located in the centre of the capital city of Dhaka. It is a leading firm dedicated to providing legal services on all IP matters, and represents the world’s most renowned brands and business houses. The firm is a member of various international prestigious associations, such as APAA, AIPPI, ECTA, FICPI, IPO, INTA, LESI and MARQUES. It is also a member firm of Kenton & Miles Business and Financial Advisors (Italy), and leading associate of Brandstock AG, among others. Advocates IP Law Alliance’s services for the protection of intellectual property rights include: legal action for infringement of trademark; passing off; trademark violation; unlawful importation; trademark, patent and design filing; renewal; search; prosecution; and all administrative work. Delwar Hossain, Advocates IP Law Alliance managing partner, commented: “The system is developing in our country. The companies have also started growing and recently they are taking care of their intellectual property rights. But I would say that the companies are still not aware that intellectual property is one of their main assets. “There are provisions for protection of intellectual property rights but, in fact, it is very difficult to deal with IP crimes effectively as the law enforcing agencies are not aware of current situation and development. “In our system it is now possible to register the services under classes 35 to 44 since introducing the new Trademarks Act, 2009. Presently we do not see any differences of legislation with the neighbouring countries.” The Trademarks Act, 2009 is a recent addition to Bangladesh IP law. The government introduced the registration of services and at the same time increased the fees, in some cases up to 15 times. The department

Delwar Hossain Managing Partner Tel: +880-1199-864967 iplaw@bangla.net www.biplobd.com

is yet to be automated and, currently, all of its systems are manual. A trademark registration usually takes around two years, but presently it takes much longer. Mr Hossian noted: “The Donor Agencies are working hard to improve the situation in the department. They have nominated people to monitor the development and the next step is to upgrade the department, automate the system and shift it to an independent place, perhaps within the second capital, Agargaon, where World Bank and Asian Banks offices are situated.”

The firm is a member of various international prestigious associations, such as APAA, AIPPI, ECTA, FICPI, IPO, INTA, LESI and MARQUES.

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Intellectual Property Guide

Germany - LexDellmeier IP Law Firm

Alexandra Dellmeier Founder and Managing Partner Tel: +49 89 55 87 987 0 info@lexdellmeier.com www.lexdellmeier.com

Experienced - Innovative - Client-oriented - LexDellmeier offers innovative and creative in-depth IP counseling in Germany and throughout Europe. The attorneys-at-law at LexDellmeier IP Law Firm offer first-class expertise in the fields of trademark, design, IT and copyright law, as well ‘birth’ of an idea, product and cutting-edge technology and working internationally as licensing and IP related unfair competition law. with people of different cultural backgrounds and different laws makes our work and profession exciting, challenging and rewarding.” Alexandra Dellmeier, LexDellmeier IP Law Firm founder and managing In recent years, LexDellmeier IP law firm partner, stated: “Our firm takes a fresh approach when it comes to our has received several awards, including: clients’ IP needs. We go beyond merely offering ‘dry academic expertise’. - Small IP Law Firm of the Year in GerWe strive to understand our clients’ business so we can be our clients’ many (Corporate INTL Global Awards ‘strategic partners’. We combine ‘out-of-the-box’ thinking with technical 2010), excellence, proactive strategies and clear communication to maximise our - Trademark Law Firm of the Year in Gerclients’ IP protection.” many (Finance Monthly Law Awards The range of the firm’s activities reaches from prosecution, appeals, and 2011), revocation/nullity proceedings to litigation before the German Patent and - Boutique Intellectual Property Law Firm Trademark Office (GPTO), the Community Trademark and Design Office of the Year in Germany (Corporate INTL (OHIM), the European Patent Office (EPO), the World Intellectual Property Global Awards 2012), and Organization (WIPO), the European General Court (GC), the European - Intellectual Property Law Firm of the Court of Justice (ECJ) and all German courts. Year (Finance Monthly Global Awards The firm represents large and medium sized corporations, as well as 2013). individuals based in Europe, the Americas and Asia. It has thus developed an international network of associates with whom it cooperates on The firm takes pride in planning, creating, maintaining and reviewing its clients’ a worldwide basis in the field of IP prosecution and litigation. Strategic IP portfolio. And if IP rights are ever violated or challenged, the client has with thinking, planning and protecting IP rights beyond country borders are of major importance in this globalized world and are the basis of its LexDellmeier a coordinated team of experts that can handle complex litigation to defend and enforce a company’s valuable IP rights. clients’ success. Knowledge - Power - Success - LexDellmeier believes that knowledge is power – Ms Dellmeier stated: “We very much enjoy tackling such daily challenges and perform our work with passion. Being actively involved at the the basis of its clients’ success.

Japan - TSUTSUI & ASSOCIATES TSUTSUI & ASSOCIATES was established in 1980 as a patent law firm. Its aim is to provide clients with high quality IP services by maintaining close communication and collaboration with them. Ms Shoko Tsutsui, TSUTSUI & ASSOCIATES partner, has been a patent and trademark attorney in Japan since 2000. She is as qualified as an IP litigator with experience in patents, trademarks, copyright, and unfair competition prevention law. She is currently in charge of trademark matters for domestic and foreign cases, as well as international client correspondence for all kinds of IP matters. Ms Tsutsui is a member of JPAA, AIPPI, FICPI, APAA, INTA, LESI, ECTA, and MARQUES. She noted: “I believe that our IP management, especially for IP protection strategies devised for Japanese companies, is one of the most developed in the world. This now covers every kind of industry. As for the litigation for IP, the number is not very big – around 500 cases per year. “Concerning the protection for inventions, IP crime is not only a problem in relation to patent law, but also for unfair competition prevention law for protection of trade secrets. The mobility of human resources means that we face the crisis of the loss of technological knowledge owned by inventors. “Efficient management for border protection is required for the protection of trademarks and designs. The procedure at customs has been well established for several years.” The number of domestic filings made by Japanese and foreign applicants in Japan has significantly reduced since 2008 when the economic crisis began, particularly for patent cases. Very strict examination standards, especially for the inventive step, have caused difficulties in obtaining patents in Japan. But this simultaneously profits the applicant to obtain a strong patent right.

Ms Shoko Tsutsui Partner Tel: +81-(0)3-5368-2211 info@tsutsui-pat.com www.tsutsui-pat.com

Ms Tsutsui added: “The international harmonisation of the IP system around the world has been strongly encouraged over the decades. So the prosecution processes have mostly been coordinated these days. “To the contrary, the court procedures are still independent of each other, so clients still have a problem managing different jurisdictions. To assist such difficulties for clients, our international professionals’ network provides a means of ensuring high quality legal services across multiple jurisdictions.” Regarding legal updates in relation to patents, the Japan Patent Office (JPO) has recently modified the condition for the amendment of specifications, and claims to have simplified this procedure. For design matters, the JPO is considering its prospective compliance with the Hague treaty. This will also enable Japan to contribute to a worldwide unified protection for designs. Also, the protection for inventions made by employees is now under discussion to shift the inventor’s priority to the employer’s priority. This is not at all definitive but, “to reduce the risk for management of companies, it has been discussed,” noted Ms Tsutsui. Further, non-traditional trademarks will finally be protected in Japan in a few years, even if it is still limited to certain types of such trademarks – colour marks, sounds marks, etc.

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Intellectual Property Guide

Mexico - Calderón y De La Sierra (CyS) Calderón y De La Sierra is a boutique law firm, founded in 1982, which covers all aspects of intellectual property. Its main practice areas are inventions, trademarks, copyrights, litigation and regulatory, as well as its newest areas: sports law and entertainment and life sciences. The firm‘s clients are from practically all areas of science, industry, and technology. It has technical specialists and engineers with background in biotechnology, chemistry, mechanics, pharmacology, electronics, bioinformatics, computer software, telecommunications and nanotechnology, among other highly specialised areas. Regarding sports law and entertainment, Calderón y De La Sierra handles matters related to international sports law, including: the adequate protection of image rights; negotiating and preparing sponsorship agreements; negotiating and preparing labour contracts; and the rendering of professional sportspersons’ services. The firm manages the key legal aspects related to life science industries – regulatory and contractual law, intellectual property, and litigation. It has a practice which covers the four sectors in the industry of life sciences – health, agriculture, bio-diversity, and energy. Calderón y De La Sierra’s inventions group specialises in performing the projects, preparation, and filing of new applications until the granting of the patent rights. The group administers patent applications under the Paris Convention and the Patent Cooperation Treaty, as well as non-convention applications. In matters of trademarks – trademarks of products and services, names and trade names, and geographic indication – the firm offers the following services: consultancy, searches, strategy design, proceedings, maintenance, and vigilance of the rights acknowledged in Mexico.

Carlos Perez de la Sierra Founding Partner Tel: +52 55 5249 cps@calderoniplaw.com.mx www.calderoniplaw.net

The firm is also known for its experienced specialists and professionals who offer services in relation to copyright for artists, creators, and producers in multiple fields. This includes carrying out searches, preparing, and filing applications for copyright protection and for reserve coverage (over publications, fictitious personages, and entertainment groups), filing and maintenance of rights, as well as registration and maintenance of domain names. Carlos Perez de la Sierra, Calderón y De La Sierra founding partner, has been practising in all areas of intellectual property for 28 years. This includes: counselling, proceeding, licenses and prosecution related to patents and trademarks, copyrights and unfair competition, with a special interest in litigation. The firm’s litigation team specialises in protecting and in enforcing its clients’ patents, trademarks, designs, and copyrights. It is trained and has experience in managing litigation related to intellectual property with the Mexican Institute of Industrial Property (IMPI), along with the Mexican Federal Tribunals at all levels, including appeal and constitutional instances. The team has been successfully hired to conduct civil cases for damages. Its leaders have also participated in solving conflicts arising from the domain names in the Mexican Copyright Office and the World Intellectual Property Organization. Calderón y De La Sierra is known for managing successfully complex litigations in all instances all over Mexico, as well as at a regional and international level in cooperation with its worldwide network of associated firms. With its network of specialised correspondents, the firm is able to offer its services in relation to all areas of intellectual property law anywhere in the world.

Portugal - Raul César Ferreira (Herd.), S.A. Raul César Ferreira (Herd.) S.A. (RCF), a well-established company in the industrial property field, founded in 1929, is today regarded one of the leading firms in Portugal. RCF is a dedicated IP services firm with proven expertise in all fields of industrial property. It practises in Portugal, Timor, Macao and the African Portuguese speaking countries of Angola, Mozambique, Guinea-Bissau, Cape Verde, Sao Tome and Principe. The Trademark Department has expertise in clearance searches and search opinions, prosecution, enforcement and oppositions in national, community and international trademarks, as well as litigation. The Patent Department offers expertise in several technical areas (chemistry, biochemistry, molecular biology, mechanical engineering, etc) as well as offering expert knowledge of drafting, prosecution, enforcement and litigation. João Jorge, RCF chief operating officer, noted: “There is no typical client for RCF as our portfolio of clients includes some of the most important Portuguese companies, as well as the most significant European, American and Asian companies in various business fields. “Moreover, we provide services to national and foreign SMEs that have chosen us directly themselves, or through referral from our colleagues abroad. Regardless of the types of clients we retain, all of them receive the same attention, dedication, commitment and quality that have always been present in the relationships between our clients and business partners. “In this portfolio of clients, RCF acts as outside counsel for several owners of well-known trademarks, where the firm counsels and acts in the enforcement of their IP assets.” The firm has vast expertise in matters such as supplementary protection certificates, utility models, designs, copyrights, and also IP-related

João Jorge Chief Operating Officer Tel: +351 213 907 373 mail@rcf.pt www.rcf.pt

due diligence – namely: validity analysis, infringement analysis, technical expertise in litigation, infringement probative searches, state-of-the-art and advanced technical searches, skilled surveillance, maintenance and technical translations. Mr Jorge commented: “The RCF team is keen to promote and participate in the discussion of important IP matters. Consequently, several of our collaborators are strongly involved in the work carried out by international organisations, including: INTA, ECTA, AIPPI, FICPI, MARQUES, PTMG, ITMA, UNION, VPP, GRUR, CIPA, ABPI, ASIPI, CIPA and EPI.” RCF’s team collaborators, both external and in-house, are specialised in all sorts of IP rights. Having made a great investment in highly skilled persons, the collaborators are mainly trademark and patent attorneys, but also collaborators specifically qualified in the fields of mechanics, chemistry, computer science, biology, molecular biology, pharmacy and biochemistry, among others. These collaborators possess experience in infringement analysis and validity assessment of IP rights, conducting state-of-the-art searches and promoting a very active expert cooperation in IP disputes. Mr Jorge added: “RCF has developed a very effective anti-counterfeiting strategy that IP owners have adhered to, and which has transpired to be highly effective in achieving the required results.”

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Intellectual Property Guide

Singapore - Namazie & Co. Namazie & Co. is an intellectual property & technology law firm that was established in 2001. It advises clients across retail, industrial and the service industries sectors who seek to protect their IPR in Singapore and the region. The firm has a comprehensive IP practice, with particular strength in trademark and patent registrations and protection. Its clients cover a wide spectrum of large to small enterprises, start- up companies, individual inventors and institutions involved in the development of intellectual property. Farah Namazie, Namazie & Co. proprietor and intellectual property lawyer, has been practising and working in the field of intellectual property law for 22 years. She has also worked as in-house counsel for Apple Computers Inc. in their Singapore and regional operations. In addition, she is the current exclusive contributor for Singapore, for the Intellectual Property Law Review publication. She has also published and lectured widely on the international IP circuit and is a member of INTA, ECTA and the APAA. Namazie & Co. plays a large role in developing intellectual property awareness among its clients. As a SCOPE IP consultant (an accreditation conferred by the Intellectual Property Office of Singapore), the firm conducts IP governance and due diligence programmes for companies who wish to learn more about, and harness, their IPR potential. Working with the Intellectual Property Office of Singapore, the firm assists candidates to seek funding for IPR development and protection. Ms Namazie noted: “The retail sector in Singapore is certainly a brand

Farah Namazie Proprietor / Intellectual Property Lawyer Tel: +65 65389711 farahnamazie@namazie-law.com www.namazie-law.com

Namazie

&

Co. AN INTELLECTUAL PROPERTY & TECHNOLOGY LAW FIRM

conscious community and many local brand developers are aware of the need and merit of trademark and copyright protection of their brands. “Likewise in the software industry, companies realise that seeking and obtaining patent protection affords them an advantage in commercialising their IPR, particularly when licensing and franchising beyond its borders.” Rigorous efforts by the public and private sector to deal with counterfeiting of brands through the 1990s and beyond have proven effective in cleaning up trademark counterfeiting activities locally to a large extent. A particularly effective tool at the disposal of IPR right owners is the ability to pursue infringements by private summonses, using the criminal process to initiate private prosecutions against infringers. Ms Namazie added: “Online crime, as well as illegal Internet activities involving IPR, is the current challenge.” In the future, mediation and arbitration as means of dispute resolution are likely to play a more significant role in dealing with contentious matters involving IPR. Such alternative dispute resolution (ADR) methods would prove preferable to many parties who seek privacy and flexibility in dealing with their IPR disputes. Singapore ADR facilities offer international parties a suitable and confident infrastructure to resolve contentious IPR issues.

Taiwan - Deep & Far Attorneys-at-law Deep & Far Attorneys-at-law was founded in 1992 by C F Tsai. It is one of the largest law firms in Taiwan, specialising in all aspects of intellectual property rights (IPRs). This includes: patents, trademarks, copyrights, trade secrets, unfair competition, licensing, counselling, litigation and transactions. The firm’s memberships include INTA, AIPPI, AIPLA and APAA. It has also released many publications, including newsletters. Taiwan has most types of IP laws that other countries have. It also has a specialised IP court. Nevertheless, the IP court is very cautious when interpreting the scope of the patent rights. This appears to be due to the fact that the judges respect the view of the technical examiners, who however, do not know much about patent infringement, although they are expert or senior examiners in the IPO. The firm is trying hard to educate them through cases in trial. C F Tsai, Deep and Far Attorneys-at-Law managing partner, noted: “In such competition time, it is hard to stick to the ideal. Nevertheless, we are stubborn enough to insist on only engaging in businesses enabling us to become deep and far, either in reputation or achievements in the future, rather than winning success in a short period.” In regards to establishing and enforcing IP rights on a cross-border scale, there are two circumstances. One is when the product is produced in ‘A’ country but sold in ‘B’ country. In this situation, two associates in two countries should coordinate with each other. The other circumstance is when the same infringements occur in both countries. For this one, useful information gathered in one country is helpful in another country. Accordingly, it might be critical to gather such useful

C F Tsai Managing Partner Tel: +886-2-25856688 email@deepnfar.com.tw / cft@deepnfar.com.tw www.deepnfar.com.tw

information. In the firm’s experience, most companies try to safeguard their IP rights. But very few are serious in securing offensive IP rights. Profitable companies are the ones that tend to seek broad claims, while hard industries tend to mature patent certificates at the lowest price or even not to seek patent protection. Mr Tsai added: “Through strong enforcement in the past years, IP crime is effectively diminished. Continuous efforts of monitoring the market, enforcing IP rights and claiming infringement would be best measures to tackle the problem.” An update regarding IP law in Taiwan is that the provision for treble damages of intentional patent infringement was just abolished but is to be reinstated. It remains to be seen whether or not the courts will apply it.

In the firm’s experience, most companies try to safeguard their IP rights. But very few are serious in securing offensive IP rights.

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Intellectual Property Guide Map

Title

GERMANY SWITZERLAND

SPAIN PORTUGAL

NIGERIA

KENYA

SOUTH AFRICA

AUSTRALIA - Spruson & Ferguson David Griffith, Managing Principal Tel: +61 2 9393 0100 dgriffith@spruson.com / mail.au@spruson.com www.spruson.com

BANGLADESH - Advocates IP Law Alliance Md. Delwar Hossain Tel: +880-1199-864967 iplaw@bangla.net www.biplobd.com

INDIA - S MAJUMDAR & CO. MR. S. MAJUMDAR Tel: +91 33 24557484/85/86 cal@patentindia.com www.patentindia.com JAMAICA - FOGA DALEY Dianne Daley Tel: +1 876-927-4371-3 daley@fogadaley.com www.fogadaley.com

FOGA DALEY

CHINA - First Law & IP Offices

JAPAN - TSUTSUI & ASSOCIATES

Vivian Yu Tel: +86-21-63741189 shanghai@firstlaw.com www.firstlaw.com.cn

Ms Shoko Tsutsui, Partner Tel: +81-(0)3-5368-2211 info@tsutsui-pat.com www.tsutsui-pat.com

GERMANY - LexDellmeier Intellectual Property Law Firm

KENYA - Sisule Munyi Kilonzo & Associates, Advocates

Tel: +49 89 55879870 info@lexdellmeier.com www.lexdellmeier.com

Sisule Musungu Senior Partner Tel: +254 20 22 22 130 fsisule@thesmklawfirm.com www.thesmklawfirm.com

HONDURAS - Lic. Daniel Casco L. / Bufete Casco

MEXICO - Calderón y De La Sierra y Cia., S.C.

Leonardo Casco-Fortin Tel: +504 2237-6467 reforma@cascomark.com www.cascomark.com

Carlos Pérez De La Sierra, Partner Tel: (5255) 5249-8460 cps@calderoniplaw.com.mx www.calderoniplaw.com.mx

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Intellectual Property Guide Map

MEXICO

HONDURAS

JAMAICA ST. VINCENT & THE GRENADINES

BRAZIL

NIGERIA - G.O. Sodipo & Co DR. BANKOLE SODIPO Tel: +234-1-2637738 b.sodipo@gosodipo.com www.gosodipo.com

PORTUGAL - Raul César Ferreira (Herd.), S.A.

JAPAN

CHINA BANGLADESH

João Jorge, Chief Operating Officer Tel: +351 213 907 373 mail@rcf.pt www.rcf.pt

TAIWAN

INDIA

SINGAPORE - Namazie & Co. Farah Namazie, Proprietor / Intellectual Property Lawyer Tel: +65 65389711 farahnamazie@namazie-law.com Namazie & Co. www.namazie-law.com

SINGAPORE

AN INTELLECTUAL PROPERTY & TECHNOLOGY LAW FIRM

SPAIN - HERRERO & ASOCIADOS Mariano Santos Quintana (International Affairs Manager) Tel: +34 915227420 msantos@herrero.es www.herrero.es

AUSTRALIA

SOUTH AFRICA - Adams & Adams

SWITZERLAND - E. Blum & Co. AG

Tel: +27 (0) 12 432 6000 Fax: +27 (0) 12 432 6599 mail@adamsadams.com www.adamsadams.com

Brendan Bolli Tel: +41 43 222 56 00 mail@eblum.ch

ST. VINCENT & THE GRENADINES - Regal Chambers Rosann N. Knights, Partner Tel:+784-457-2398 or 784-532-8085 rosann@regallaw.com

Regal Chambers

TAIWAN - Deep & Far Attorneys-at-law C F Tsai, Managing Partner Tel: +886-2-25856688 email@deepnfar.com.tw / cft@deepnfar.com.tw www.deepnfar.com.tw Sept 2013 Corporate INTL 53

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