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“Spain United for Climate”: The Proposed New Climate Change and Energy Transition Law

Posted in Environment

By Paul Davies and Rosa Espin

Spain is leading the fight against climate change with a proposed new Climate Change and Energy Transition Law.

The Spanish government regards climate change as one of the greatest challenges facing the country. Since 22 April 2016, the Paris Agreement (which sets out a global action plan to avoid climate change by limiting global warning to well below 2ºC), has been open for signature. Spain formally ratified the Paris Agreement in early 2017 and must now seek to implement measures to achieve the ambitious targets that it faces.

As an important consequence of these targets, in December last year the Spanish Climate Change Commission passed a proposal which urged the Government to develop a draft law on Climate Change and Energy Transition. This draft law will enable Spain to achieve its climate change and energy goals and promote competitiveness in the country. This proposed law is expected to regulate existing and future climate related measures, taking into account the climate change targets for the years 2030 and 2050. Continue Reading

Another Key Decision on Corporate Separateness – High Court Finds That There is No Arguable Case for Unilever to be Held Liable for the Acts and Omissions of Kenyan Subsidiary

Posted in Dispute Resolution, Environment

By Paul Davies, Michael Green, Samuel Pape and Charles Rae

In a recent decision, the High Court has ruled that Unilever plc (Unilever), the ultimate holding company of the Unilever Group, does not owe a duty of care to protect the employees and residents of a tea plantation owned and operated by a Kenyan subsidiary from ethnic violence carried out by armed third party criminals.

This decision is the third time in less than 12 months that an English court has considered a jurisdictional challenge to proceedings brought by foreign claimants seeking to hold a UK domiciled parent company liable for the alleged acts and omissions of an overseas subsidiary. Similar challenges were made in Lungowe & Ors v Vedanta Resources plc & Anor and more recently in Okpabi & Ors v Royal Dutch Shell plc & Anor with the courts reaching opposite conclusions on their respective facts. Our blog on the decision in Okpabi can be found here.

These cases are significant in the context of multinational corporate groups and the circumstances in which a parent company may be held liable in negligence for the actions and omissions of its subsidiaries. Continue Reading

Belt and Road Forum Positions China as Leading Proponent of Global Trade

Posted in Environment

By Paul Davies, Michael Green and Andrew Westgate

Silhouette of Meeting Table in the Office

Leaders from around the world, including 20 heads of state, attended the Belt and Road Forum for International Cooperation in Beijing on May 14-15. The attendees at the forum agreed on guiding principles for the initiative, and the Asian Development Bank, the European Investment Bank, the New Development Bank, the World Bank and China’s Finance Ministry also signed an agreement promoting the initiative.

The US was represented at the forum by Matthew Pottinger, the National Security Council’s senior director for Asia. A few days prior, on May 12, the US and China announced a series of trade measures to improve access to Chinese markets for American beef and natural gas exports, among other sectors. Mr. Pottinger’s attendance at the forum, a change from the original plan to send a Commerce Department official, was widely seen as a response to the trade dea Continue Reading

Dow/DuPont: MOFCOM Grants First Conditional Clearance of 2017

Posted in EU and Competition

By John. D Colahan and David Zhou 

Background

On 2 May 2017, China’s Ministry of Commerce (MOFCOM) announced its conditional clearance of the proposed US$130 billion all-stock merger of equals between the Dow Chemical Company (Dow) and E.I. du Pont de Nemours and Company (DuPont), marking the first conditional clearance that MOFCOM has granted this year. MOFCOM imposed structural and behavioural remedies on both parties — which are active in plastics, chemicals and agro-chemicals, among other sectors — to address various competition-related concerns. The transaction has been subject to merger control clearance from more than 25 competition authorities globally, including the European Commission, which granted conditional clearance on 27 March 2017.

MOFCOM’s concerns

MOFCOM found that the parties horizontally overlapped in nine different national agrochemical markets and seven different global material sciences and specialty products markets. MOFCOM also found that vertical relationships existed between the parties in an additional nine relevant global material sciences and specialty products markets. MOFCOM identified four markets where it believed that there was a risk of competition being eliminated or limited: (i) Chinese rice selective herbicides ,(ii) Chinese rice pesticides,(iii) global acid co-polymer market, and (iv) global ionomer market. Continue Reading

Banking on IT

Posted in Data Protection

By Christian McDermott, Calum Docherty, Stuart Davis and Anne Mainwaring

The European Banking Authority (EBA) has published its consultation document on security measures for operational and security risks under the revised Payment Services Directive (PSD2).

Technology - dreamstime_xxl_19374657The WannaCry ransomware attack that swept across the globe last week revealed the destructive and indiscriminate nature of cyber threats. It attacked hospitals, telecoms networks and universities, seizing hold of important data and leaving users and systems administrators temporarily powerless. These are precisely the risks that the payments industry wants to avoid as it braces for the revised PSD2, which will come into force across the EU from 13 January 2018. As such, the EBA has published a consultation paper on security measures for operational and security risks under PSD2, setting out proposed requirements for payment services providers (PSPs) to mitigate the concomitant payment processing risks.

The consultation paper is one of the EBA’s three security mandates in PSD2, complementing the Regulatory Technical Standards on Strong Customer Authentication and Common and Secure Communication (submitted to the European Commission for adoption 23 February 2017), and the Guidelines on Major Incidents Reporting (which recently finished its consultation). Continue Reading

Latest Ransomware Attack: Is Your Arbitration Cyber-ready?

Posted in Data Protection

By Sophie Lamb and Samuel Pape

The latest global ‘WannaCry’ attack has again brought to the fore the need for sovereign and private parties to have in place adequate cyber-security measures and response plans to deal with cyber-attacks, including in the context of internationalData Protection - Fingerprint arbitration.  As attackers are becoming increasingly resourceful in their ability to exploit vulnerabilities, it is critical that participants in arbitration play their part in mitigating against this type of risk, particularly where sensitive information is involved and large sums are at stake. Even the arbitral institutions themselves are not immune, as was evidenced by the hack on the Permanent Court of Arbitration’s (PCA) website during a hearing of a high profile maritime border dispute.

The increase in transparency in investor-State arbitration through the publication of case documents during the proceedings might provide new opportunities for hacktivists to interfere with the arbitral process.  For example, hacktivists could use a form of social engineering that would involve impersonating a tribunal chairperson based on information from published procedural orders for the purposes of eliciting confidential information from the parties or co-arbitrators.  This type of ‘social engineering’ has become a common method of attack and has supplanted the more basic forms of phishing attempts.  Cyber-attacks can only be thwarted if all participants in arbitration remain alive to this type of threat.    Continue Reading

Changes to Corporate Criminality Offences in the UK Cause Corporate Dealmakers to Review Acquisitions

Posted in M&A and Private Equity

By Stuart Alford QC, Daniel Smith

Teamwork

Proposed changes to corporate criminal offending should cause corporate dealmakers to review the scope of acquisition diligence, particularly in light of the UK Serious Fraud Office’s (SFO’s) increasing use of deferred prosecution agreements (DPAs), as highlighted by the recent Rolls Royce and Tesco cases.

Expected Expansion of Corporate Liability Offences

As is widely appreciated, corporates can be prosecuted under the Bribery Act for “failing to prevent” bribery. New legislation is set to create offences for a wider range of criminality, starting with the facilitation of tax evasion, but possibly followed by fraud, false accounting and money laundering.

The new style of corporate offences bypasses the long-standing English law requirement that prosecutors prove that a “directing mind or will” (i.e., directors or other senior management) was culpable in order to establish corporate criminal liability. This has made prosecution of large multinationals challenging, as very senior employees may not be privy to decisions made on the ground. The future landscape for corporate prosecutions is expected to more closely map the US, where an employer can be automatically answerable for the crime of its employee. Continue Reading

Check Your Privilege: English Court Rules Internal Investigation Materials Cannot be Withheld from Prosecutor

Posted in Dispute Resolution

By Stuart Alford QC, Daniel Smith and James Fagan

 Privilege is a fundamental human right guaranteed by the common law, and a principle which is central to the administration of justice. Once a document is subject to privilege, the privilege is absolute: it cannot be overridden by some countervailing rule of public policy”.

These dicta from Andrews J in her decision in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 are reassuring, but her ruling on the scope of privilege may prove somewhat less so to corporates.

The decision concerned a claim by the Director of the UK Serious Fraud Office (SFO) for a declaration that certain documents generated between 2011 and 2013 during investigations undertaken by solicitors and forensic accountants into the activities of the defendant, Eurasian Natural Resources Corporation Ltd (ENRC) and its subsidiaries were not, as ENRC maintained, subject to legal professional privilege, either legal advice privilege or litigation privilege. The decision is the first to consider the position of legal advice privilege in the context of internal investigation and an SFO investigation.

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