China Unveils Plan to Ban Fossil Fuel Vehicles

Posted in Environment

By Paul Davies and Andrew Westgate

Addressing a car forum in Tianjin, Xin Guobin, Vice Minister of Industry and Information Technology, announced that the Chinese government is developing plans to follow in the footsteps of some European countries to phase out fossil fuel-powered vehicles. “Some countries have worked out a timetable to stop production and sales of traditional fuel vehicles. Now the Ministry of Industry and Information Technology has launched a study as well, and will work with related departments on a timetable for our country,” Xin said. A phase out of fossil fuel vehicles could have a significant impact on air quality in China, where reports suggest that as many as 1.6 million people die each year from health issues related to air pollution.

With nearly 200 million registered vehicles at the end of 2016, China has the world’s largest car market. New energy vehicles and electric vehicle (EV) batteries are playing an increasingly important role in Beijing’s plans to turn China into a high tech powerhouse. China also has the largest cumulative total of new energy vehicles, ahead of Europe and the United States, which have the second and third largest totals respectively. In 2016, 53% of the 774,000 electric cars sold worldwide were sold in China. In order to meet next year’s demand, forecasters say that China alone needs to make 750,000 new energy vehicles — exceeding the combined worldwide demand in 2016. Continue Reading

China Dominates Global Investments in Renewable Energy

Posted in Environment

By Paul Davies and Andrew Westgate

Market research has long recognized China as the largest investor in its own domestic renewable energy industry. According to Bloomberg New Energy Finance, China invested US$102 billion in 2015 alone. However, a report by the Institute for Energy Economics and Financial Analysis (IEEFA) found that China’s dominance in renewables is rapidly growing overseas as well.

The report details China’s robust international investment activity. In 2016, for example, China made 11 outbound clean energy investments exceeding US$1 billion for a total of US$32 billion — a 60% increase from 2015. China also ranked as the fifth-largest investor in renewable energy projects in other emerging markets in 2016, totalling US$19.7 billion since 2005. However, according to the report, China still directs a majority of its investments in renewables towards the United States, Germany, and other developed countries.

The report also found that China currently accounts for one quarter of global renewable energy capacity and one third of all global investment in renewables. Chinese manufacturing has altered the economics of renewable power worldwide, making solar generation cost-competitive with electricity from fossil fuels such as coal and natural gas. As a result, official figures indicate that coal consumption, the main component of China’s carbon emissions, fell in 2016 for the third year running. Continue Reading

Further Disclosure? Yes, but Not at Any Cost

Posted in Dispute Resolution

By Oliver Browne and Hayley Pizzey

In very broad terms, parties to English litigation disclose documents that they or their opponents may want to rely upon — even if the disclosed documents are adverse to the disclosing party. Parties may seek orders for further disclosure in certain circumstances. The rules on disclosure are set out in Part 31 of the Civil Procedure Rules (the CPR) and Practice Directions 31A, 31B, and 31C (the last of which is new and applicable to competition cases only).

A recent decision in Vodafone Group Services Ltd & Ors v Infineon Technologies AG & Ors[i] highlighted some limits of further disclosure orders.

The decision

Certain Vodafone group companies have commenced a damages claim following on from a decision of the European Commission, in which the Commission found that Infineon Technologies and certain other smart card chip manufacturers had participated in a European Economic Area (EEA)-wide cartel involving the supply of smart card chips. Vodafone’s estimated damages are said to be approximately £150 million and the parties were likely to spend around £30 million in total to take the case to trial. Continue Reading

European Commission’s 6 Proposals for Post-Brexit Intellectual Property Rights

Posted in Brexit, Data Protection


By Deborah Kirk

The European Commission (EC) has released a position paper on its objectives for the Article 50 Brexit negotiations with the UK regarding Intellectual Property Rights (IPRs). The EC has effectively set out six key principles for the Withdrawal Agreement, including:

    1. Continued legal protection for certain IPRs: Any IPR with unitary character (e.g., EU trademarks, Community designs) granted before the withdrawal date should automatically be treated in the UK as having the same rights that the UK currently enforces under the EU regime, at no extra cost to the IPR holder. This continued protection will also include geographical indications. The EC would require the UK to implement domestic legislation to achieve this when necessary.
    2. Continued priority benefits for certain IPRs: From a procedural prospective, any IPR applications placed before the withdrawal date that have unitary character and are still under prosecution (i.e., ongoing) at the time of withdrawal, are to maintain any priority benefit they have when applying to receive the equivalent recognition in the UK.
    3. Continued protection for supplementary protection certificate or paediatric extensions: Similarly, after withdrawal it should be possible in the UK to receive a supplementary protection certificate or paediatric extensions if an application was submitted before and is ongoing at the withdrawal date. In addition, any protection in the UK should be equivalent to the protection afforded under the EU regime.
    4. Continued protections for database rightsholders: Database rightsholders should continue to enjoy the same protections after the withdrawal date in the EU27 and in the UK in relation to those databases. Conversely, the UK should not exclude EU27 nationals and companies from enjoying database protection in the UK on the grounds of nationality or establishment.
    5. Continued application of exhaustion: Any IPRs that were exhausted in the EU before withdrawal should remain exhausted in the EU27 and the UK. The conditions for exhaustion should be those defined by EU law.
    6. EU27/UK registry cooperation and data transfers: In order to facilitate the principals regarding IPRs with unitary character, the Withdrawal Agreement should encourage cooperation and data transfers between the IPR registries of the EU27 and the UK.

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How Will Court of Appeal Decision in Sabbagh v Khoury and others Affect Future Article 6(1) Cases?

Posted in Dispute Resolution, EU and Competition

By Oliver Browne and Daniel Harrison

The Brussels Regulation provides for an exception to the general rule that a claimant must sue a defendant in the EU Member State where the defendant is domiciled. The exception allows a claimant to sue a defendant where a co-defendant (the “anchor” defendant) is domiciled instead, if the claims are so closely connected that it is expedient for a court to hear them together. In Sabbagh v Khoury and others, a majority of the Court of Appeal (the Court) considered that this exception will not apply if the claim against the anchor defendant is hopeless or presents no serious issue to be tried.[i]

Sabbagh v Khoury and others: the Case and Judgment

Article 6(1) of the Brussels I Regulation (44/2001) provides that a person domiciled in an EU Member State may also be sued : “where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.” Article 8(1) of the Brussels I (Recast) Regulation (1215/2012), which replaced the Brussels I Regulation and post-dated the claim in Sabbagh, now contains the same provision. Continue Reading

New German Foreign Investment Rules Threaten Deal Timetables

Posted in EU and Competition, M&A and Private Equity

By Jana K. Dammann de Chapto and Joachim Grittmann

The German government has tightened the rules for its review proceedings for M&A involving non-EU investors, with changes to its German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) that significantly increase foreign investment oversight.

The new rules, which came into force on 18 July 2017, introduce a new notification requirement for non-EU investment in critical infrastructure and security-related technologies, and extend the review periods, potentially causing delays to closings.

Previously, non-EU investors were not required to notify the German government of the direct or indirect acquisition of a German company, unless the company was active in developing or manufacturing defence and encryption technology. Now, the industry sectors subject to a notification obligation have been expanded to cover critical infrastructure and security-related technologies, with the government explicitly identifying energy, water, nutrition, information technology, healthcare, financial services and insurance, and transport and traffic for closer inspection. Continue Reading

Coining it in: ICOs as the New Fundraising Paradigm?

Posted in Emerging Companies and Technology, Finance and Capital Markets

By Andrew Moyle, Wenchi Hu, Simon Hawkins and Stuart Davis

Initial Coin Offerings (ICOs) involve issuers offering virtual coins or tokens that are created and disseminated using distributed ledger or blockchain technology. The capital raised from the offer will fund the development of a digital platform, software, or any other project. Holders of virtual coins or tokens may have additional rights over and above those of a cryptocurrency, such as rights to access the platform, use the software, or otherwise participate in the project. In some cases, holders may also have rights to a return on their investment, or rights to participate in a share of the returns provided by the project or by the company backing the project. Post-issuance, holders may resell virtual coins or tokens in a secondary market on virtual currency exchanges or other platforms. ICOs are typically announced on cryptocurrency forums and websites through a white paper describing the project and key terms of the ICO, subscription details, timeline, etc.

To date, an estimated 100 ICOs have raised over US$1.2 billion, with a plethora of prospective ICOs frequently reported in industry publications. In June and July this year, ICO funding surpassed that of angel and early-stage VC funding combined. Continue Reading

High Court Reiterates High Threshold for Enforcement of Annulled Awards

Posted in Dispute Resolution

By Charles Rae

A High Court decision has reiterated the difficulties international parties face in enforcing in England awards set aside by courts at the seat of arbitration. In Maximov v OJSC Novolipetsky Metallurgichesky Kombinat[1] the Claimant had applied for enforcement of an award made by the International Commercial Arbitration Court of the Chamber of Commerce and Industry of the Russian Federation (‘ICAC’), notwithstanding that the award had been annulled by the Russian courts. The Claimant had argued that the perverse nature of the decisions annulling the award meant that they should not prevent the award being enforced in England. The High Court dismissed the application holding that the Claimant had failed to discharge the high threshold required in these circumstances to warrant enforcement of the award. There was no evidence that the annulment had been procured by actual bias and the decisions were not so extreme or incorrect as to lead to the conclusion that they had not been made by the Russian court in good faith.

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UK Government sets out its preferred post-Brexit landscape for data protection

Posted in Brexit, Data Protection

By Gail Crawford and Calum Docherty

Her Majesty’s Government last week published a position paper outlining its preferred post-Brexit landscape for data protection. The high-level takeaways are hardly surprising: the government stresses that it intends to “remain a global leader on data protection” and, as we already know, the UK’s Data Protection Bill, announced in the Queen’s Speech, will implement the EU’s General Data Protection Regulation (GDPR).

The paper’s top priority is the frictionless movement of personal data between the UK and the EU. The government sets out the Schrems test – i.e., that standards in a non-EU country must be “essentially equivalent” to those applied in the EU – and emphasises that the UK will be in an “unprecedented position” at Brexit, as the UK will have fully implemented the GDPR and so have the same data protection standards as the remaining EU member states. The government priority, then, is for the UK and the EU “to agree early in the process to mutually recognise each other’s data protection frameworks” to allow the free flow of personal data to continue at the time of Brexit. This bespoke interim solution would be followed up with agreed timelines about longer-term arrangements, with the paper suggesting that the UK will ultimately seek an adequacy decision. Continue Reading

CMA Updates its Penalties Guidance for UK and EU Competition Law Infringements

Posted in EU and Competition

By Jonathan Parker and Calum Warren

On 2 August 2017, the UK Competition and Markets Authority (CMA) launched a consultation on proposals to amend the Office of Fair Trading’s 2012 guidance as to the appropriate amount of a penalty for infringements of the prohibitions against anti-competitive agreements and an abuse of a dominant position contained in the Competition Act 1998 (the Current Penalties Guidance). The consultation proposes the following four main changes to the Current Penalties Guidance, most of which are clarifications to the CMA’s current policy based on its existing decisional practice. The CMA has not proposed any amendments in relation to the adjustment for duration (step 2) or the adjustment to prevent the maximum penalty being exceeded and to avoid double jeopardy (step 5).

1. The starting point for calculating fines (step 1). The Current Penalties Guidance provides that the starting point for a fine may be up to 30% of an undertaking’s turnover in the relevant product and geographic market in the last business year. Whilst the CMA does not consider detailing a starting point for every type of infringement appropriate, and confirms that there is no pre-set “tariff” for different infringements, the CMA proposes to amend the Current Penalties Guidance to state that it will generally use a starting point of:

(i) Between 21-30% for the most serious types of infringement (i.e., those which the CMA considers to be so-called “object” infringements, such as cartel offences, as well as excessive and predatory pricing)

(ii) Between 10-20% for certain less serious object infringements and for infringements by “effect” (i.e., those for which the CMA must carry out an assessment to establish that the behaviour in question has had an anti-competitive effect on the market)

(iii) Less than 10% may be applied if the assessment of the specific circumstances of the case leads to a downwards adjustment. If more than one undertaking has taken part in an infringement, the CMA proposes clarifying that it will expect to apply the same starting point for each undertaking. Continue Reading