The Gl be
Spring / Summer 2014
T RU ST E D L EGA L A DV I S O RS WO R L DW I D E
Editor’s Welcome
LEI AT TWENTY--- OLDER, WISER AND BETTER
McCartney sung about the long period
since Sgt. Pepper first taught the band
to play-- twenty years ago today. LEI
heroes have likewise been voyaging and
The upcoming Munich conference which
our member firm Zirngibl Langwieser will
host celebrates and commemorates the
twentieth anniversary of the founding
of LawExchange
International (“LEI”).
Twenty years is
quite a milestone
for any person or
institution to achieve.
In that period, LEI has
evolved from a gleam
in the eye and synapse
in the fertile brain of
our founder, Lewis
Isaacs of Hewitsons,
our UK member firm.
Twenty years ago,
the first meeting was
held in Munich-- with
three members.
LEI now boasts
twenty-six dynamic
firms spanning five
continents.
were barely in kindergarten. Many world
leaders were not close to appearing on
stage. Angela who? Barack who? Mr. Xi
who? Many future world leaders-- our
children-- had not even been born
or were still in diapers.
Just think of what has disappeared
in twenty years. Seventeen of the
Dow Jones Industrial companies
do not exist anymore. People used
to read things called newspapers
and magazines and get ink on their
fingers. Only fourteen of the AmLaw
100 law firms from twenty years ago
are still in business.
Our vocabulary today could barely
be recognized back then. Twenty
years ago, did you know the word
Google (in the way it is used
today)? Blog? Mashup? Bromance?
Cybersquat? Hookup?
What has held LEI and its members
together for this long span? One
immutable truth has survived this
long journey. A seamless web, spun
Great literature and
across the world, woven with the
music have long
bonds of friendship, trust, quality,
Cover of the album for the Beatles’ Sgt. Pepper’s Lonley Hearts Club Band.
enshrined the principle
effi
ciency and experienced lawyers
that twenty years
working
together
and
composing
great
will
be
in great demand to serve the
span an eternity. The first Western epic
melodies
for
its
member
fi
rms’
clients
for
needs
of
clients wherever that may lead
chronicles the immortal journeys of its
that
eternity.
worldwide. This principle, if it continues
hero, Odysseus, from Greece to Troy
to be applied energetically, is eternal.◆
Consider how all of our lives have
and then his peregrinations home to
changed over this period. Twenty years
Ithaca over twenty years. A classic short
Fred Tannenbaum
ago, the internet was still a Defense
story describes the eternal slumber of
Editor and Publisher
Department secret. There was no iPhone.
its protagonist, Rip van Winkle, and his
Gould & Ratner LLP, Chicago, Illinois
No Google. Cellphones were the size and
awakening to find a vastly changed
ftannenbaum@gouldratner.com
weight of a brick. Facebook’s founders
world twenty years later. Finally, Paul
Auke de Vries, Chairman
~
Lewis Isaacs, Secretary
~
Fred Tannenbaum, Editor & Publisher
The Globe
The newsletter of LawExchange International
COPPA Rule Amendments Go into Effect
Faith D. Kasparian
Morse, Barnes-Brown & Pendleton, PC, Boston, Massachusetts
fkasparian@mbbp.com
On July 1, 2013, the amendments to
the regulations implementing the
Children’s Online Privacy Protection Act
(COPPA) went into effect. COPPA imposes
requirements on operators of websites
or online services (including apps) that
are directed to children under the age of
13 or that have actual knowledge that
they are collecting personal information
online from a child under the age of 13.
There amendments reflect five important
changes.
(1)
Expanded Definitions
INSIDE THIS ISSUE
PAGE 2: COPPA Rule Amendments
Go into Effect. By Faith D. Kasparian,
Morse, Barnes-Brown & Pendleton, PC
PAGE 3: Accession by Spain to the
Cape Town Convention. By Alfonso
López-Ibor and Pablo Stöger, Ventura
Garcés & López-Ibor Abogados
number of permitted activities, such as
maintaining or analyzing the functioning
of the website, serving contextual
advertisements, and ensuring legal or
regulatory compliance, provided that
information collected is not used or
disclosed for any other purpose.
PAGE 4: The Australian Financial
Review. By Marianna Papadakis,
Holding Redlich
The amendments also revised the
definition of “operator”, stating that
personal information is collected or
maintained on behalf of an operator
when (a) it is collected or maintained
by an agent or service provider of the
operator; or (b) the operator benefits by
allowing another person to collect such
information.
PAGE 8: Crowdfunding - From a
UK Perspective). By Keran Sangha,
Hewitsons LLP
PAGE 5: Sweden Denies Recognition
and Enforcement of an ICDR Award.
By Pamela Lannerheim Angergård and
Karin Hoglund, Ramberg Advokater
PAGE 9: Leighton’s Revelations a
Warning for All Companies to Review
Bribery Laws. By Howard Rapke,
Holding Redlich
The list of “personal information” that
cannot be collected without parental
notice and
The
consent now
amended
includes
definition
certain
of “website
geolocation
or online
information;
service
a
directed to
photograph,
children”
video, or
clarifies
audio file
that COPPA
containing a
covers a
child’s image
plug-in or
Waltham,
Massachusetts
or voice; a
ad
network
screen or user
when
it
has
actual
knowledge
that it is
name that functions as online contact
collecting personal information through
information; and a persistent identifier
a child-directed website or online service.
that can be used to recognize a user over
(2)
Modification to Notice to
time and across different websites or online
Parents and COPPA Privacy Policy
services (except that parental notice and
consent requirements do not apply if
The amendments modify the required
such identifier is used solely to support
content of the notice to parents and
internal operations of the website or online
streamline the required content of an
service).
operator’s online COPPA privacy policy.
PAGE 12: PORTUGAL: The Rise of
a Tax Haven for Individuals and a
Country (also) for Old Men.
By Ricardo Gonçalves de Oliveira,
Marques Bom & Associados
The amended definition of “support
for the internal operations of the
website or online service” lists a
PAGE 21: Significant Events at
LawExchange Member Firms
Springl / Summer 2014
________________________________
COPPA Rule Amendments . . .
continues on page 7
PAGE 13: With General Solicitation
Now Pemitted, Has New Day Dawned
for Private Placements? Yes, but
Beware of Traps for the Unwary! By
Peter Barnes-Brown, Morse, BarnesBrown & Pendleton, P.C.
PAGE 14: Purposive Claim
Construction Adopted in Prosecution
of Canadian Patent Applications
By Matthew Thurlow, Loopstra Nixon
LLP
PAGE 15: Prohibition of Distribution
of Goods on “eBay“. By Dr. Markus
Widemann, Zirngibl Langwieser
PAGE 18: Crowdfunding Takes a Step
Foward Toward Becoming Law - From
a US Perspective. By Karl Ahlm, Gould
& Ratner LLP
PAGE 19: National Code of Criminal
Procedures. By Manuel Rodríguez Díaz,
Gallardo, Igareda, Servín, Rodríguez &
Murillo
PAGE 23: The Global Postman
www.lawexchange.org / 2
The Globe
The newsletter of LawExchange International
Accession by Spain to the Cape Town Convention
Alfonso López-Ibor
Pablo Stöger
Ventura Garcés & López-Ibor Abogados, Madrid, Spain
alfonso.lopezibor@ventura-garces.com
pablo.stoger@ventura-garces.com
By a decision adopted on the 21
December, 2012 the Spanish Government
has authorised the accession of Spain to
the Convention of International Interests
in Mobile Equipment, made in Cape Town
on the 16th November 2001 (the “Cape
Town Convention” or the “Convention”)
and decided to request the approval of
the Parliament for the Spanish accession.
Spain did not sign the Cape Town
Convention in 2011. During a
considerable period of time she was
not keen in becoming a member of this
Convention because it raised serious
legal concerns regarding basic principles
of Spanish law, and the matter was not
given careful and detailed consideration.
In particular, the main issues creating
difficulties may be summarized as follows:
a)
Spanish law does not permit
self-help measures whereas the
Cape Town Convention provides
creditors for this type of default
remedies.
b) The priority of any interest
recorded in the International
Register with regard to the
recordation of mortgages in the
Spanish Public Register would
violate basic tenets of Spanish
property law. This international
priority would, inter alia, set
aside article 41 of the law of 16
December 1954, which only
recognizes and enforces aircraft
mortgages registered in Spain.
The deregistration of a Spanish
registered
aircraft on
the basis
of a power
of attorney
granted to
the lessor is
permitted
under the
Cape Town
Convention,
whereas
Spanish
law (article
22 of the
regulations of
the Spanish
Aircraft
Register of
Plaza de Castilla with the two Gate of Europe inclined buildings, Madrid, Spain
Spring / Summer 2014
c)
1969) requires the consent of the
lessee, a final court order or the
expiry of the lease term in order
to deregister an aircraft.
For the above reasons the Spanish
accession to the Cape Town Convention
has been dormant for a considerable
period of time and there was no serious
urgency taking into account that other
countries of the European Union such
as Germany, France and Italy were not
joining the Convention. However, this has
changed during the last year since the
coming into office of a government of the
Popular Party, which is carrying out many
economic reforms. Consequently, Spain
will become a party to the Convention
with a declaration in respect of nonapplication of self-help remedies. This
declaration would have the same effect as
a reservation under Public International
Law. However, the accession would
only cover the Convention without
mentioning any of its protocols. The
accession to the Convention would be
meaningless in practical terms unless
Spain ratifies at the same time the
Protocol on matters specific to Aircraft
equipment (the Aircraft Protocol). This
latter ratification seems to have been
delayed for the time being because of a
strong resistance regarding the priority
of the International register vis a vis the
Spanish Register and the enforceability
in Spain of deregistration powers of
attorney which is not seen favorably by
the Directorate General of Civil Aviation. ◆
www.lawexchange.org / 3
The Globe
The newsletter of LawExchange International
The Australian Financial Review
Marianna Papadakis
Holding Redlich, Sydney, Australia
In an era of significant change and global
tie-ups in the legal industry, some law
firms are taking a different view when it
comes to cementing their piece of the
revenue pie.
will go somewhere else.”
He said mid-sized firms like Holding
Redlich were dealing with the challenges
“Many say you can
get global clients
more easily but in a
global group, they
might want to do
only a certain type
of work,” he said. “In
Australia, some can
have trouble because
their principal client
base is in conflict
with the overall
group’s client base.”
Holding Redlich, a midtier firm with offices
along the eastern
seaboard, has adopted an
innovative approach to the
globalisation trend.
It is not only globalisation
that law firms are dealing
with, but also decreased
profits, pricing pressures and
increased competition, along
with difficult economic
conditions.
Holding Redlich national
managing partner Chris Lovell
said in order to adapt and restructure
in an increasingly competitive global
landscape, firms had to consider
discarding their old service models, and
adopt flexible pricing options, as well as
concentrate on particular industries or
legal fields.
“Changes in pricing are permanent; it’s
already affecting law firm profits. Firms
are shrinking and will keep shrinking.
How do you deal with risk management,
systems, marketing, group structure,
cost efficiencies? You have to think about
these things.”
“Companies are increasingly taking on
in-house lawyers. And clients have a huge
market; if you start making mistakes, they
Spring / Summer 2014
move people to different locations, they
could also create conflicts in the overall
group’s focus and client balance, he said.
Sydney, Australia
of a rapidly evolving legal market by
using co-operative networks, such as
LawExchange International (LEI).
The network of independent commercial
mid-size law firms, mostly in Europe, but
also in the United States, China, Japan,
Singapore and North America and South
America, provides referrals for their clients
to member firms in other countries.
The network was not considered to be
an alternative to a merger or alliance,
Mr Lovell said, but instead was aimed at
strengthening ties between firms around
the world through referrals, websites and
personnel exchange.
While international mergers enabled firms
to spread income across the globe and
He said Holding
Redlich used the
network at least once
a month for referral
of commercial, property, taxation,
investment and contract matters, and
was referred matters – including public
takeovers and corporate start-ups in
Australia – from overseas.
“We have received significant work from
firms in the group from overseas. It’s
another avenue to give clients a broader
service than just in Australia,” Mr Lovell
said. “The benefit for us is the ability to say
to clients, ‘if you have a problem abroad,
we can refer you to a firm we know can
deal with it’.”
________________________________
The Australian Financial Review
continues on page 10
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The Globe
The newsletter of LawExchange International
Sweden Denies Recognition and Enforcement
of an ICDR Award
Pamela Lannerheim Angergård
Karin Hoglund
Ramberg Advokater, Stockholm, Sweden
pamela.lannerheim@ramberglaw.se
karin.hoglund@ramberglaw.se
Recognition and enforcement of
foreign judgments in Sweden is
handled by the Svea Court of Appeal
(the Swedish Appeal Court) exclusively.
On 11 November 2013, the Swedish
Appeal Court denied an application for
declaration of enforcement of an arbitral
award rendered by the International
Centre for Dispute Resolution, New
York, USA (ICDR), and confirmed by a US
District Court. Noteworthy, the decision
was based purely on Swedish case law
principles and with disregard to the fact
that the applicable arbitrations rules
provisions regarding communication had
been fully observed.
The underlying dispute in the preceding
arbitration proceedings emanated
from a franchise agreement between
Subway International B.V. (Subway)
and the Swedish citizen Anders
Eldebrandt (together the Parties).
Amongst other things, the franchise
agreement stipulated that the Parties’
communication should be in writing
and that the 1976 version of UNICITRAL
arbitration rules should apply in case of
a dispute. Article 2 of the rules stipulate
that “any notice, including a notification,
communication or proposal, is deemed
to have been received if it is physically
delivered to the addressee or if it is
delivered at his habitual residence, place
of business or mailing address”.
In the beginning of 2012 Subway initiated
arbitration proceedings against Anders
Eldebrandt by submitting a request
for arbitration to the ICDR. During the
proceedings, the ICDR communicated
Spring / Summer 2014
him. Subway, on its side, argued that
with the Parties on several occasions,
relevant information had been sent to
both by e-mail and regular mail, and
Anders Eldebrandt in accordance with the
on one occasion by certified letter. An
parties’ agreement and that it must have
arbitral award was rendered on 14 August
been Anders Eldebrandts responsibility
2012. On 10 September 2012 Subway
to check the mail sent to him.
submitted an application for confirmation
of the award
to the US
District
Court for the
District of
Connecticut.
During these
proceedings
several
documents
were sent
to Anders
Eldebrandt’s
place of
business in
Stockholm
Stockholm, Sweden
where
various persons, including his wife, also
In it’s decision, the Swedish Appeal
signed for them. In 2013, Subway then
Court referred to a judgment rendered
submitted an application for recognition
by the Swedish Supreme Court in 20101,
and enforcement of the award to the
deeming it necessary for a defendant to
Swedish Appeal Court.
have had actual knowledge of the arbitral
In the Swedish Appeal Court case,
proceedings in order for an award to be
Anders Eldebrandt opposed recognition
recognized and enforced in Sweden.
and enforcement of the arbitral award
Since it was undisputed that the request
arguing that he had no previous
for arbitration had not been sent to
knowledge of the arbitral proceedings
Anders Eldebrandt, the Appeal Court
and that he had not taken part of
moved on to try whether he could be
any documentation regarding the
considered to have been informed of the
proceedings or the award itself. He also
arbitral proceedings in any other way.
argued that the documents received
________________________________
by other persons at the reception of his
Sweden Denies Recognition . . .
restaurant had not been forwarded to
continues on page 7
www.lawexchange.org / 5
The Globe
The newsletter of LawExchange International
LawExchange Conference in Sydney, October 2013
Spring / Summer 2014
www.lawexchange.org / 6
The Globe
The newsletter of LawExchange International
COPPA Rule Amendments . . .
continued from page 2
___________________________________
(3)
Additional Methods for Obtaining Parental Consent
The amendments provide additional methods of obtaining verifiable parental consent, including: returning signed consent
forms by electronic scan; videoconference with trained personnel; use of government issued identification; and use of
alternative payment systems in connection with a monetary transaction.
(4)
Heightened Responsibilities on Operators
Heightening data security responsibilities, the amendments require the operators of websites and online services to take
reasonable steps to release children’s personal information only to third parties who have the capacity to, and assure that
they will, maintain the confidentiality, security, and integrity of such information. Operators also are required to retain
personal information collected online from a child for only as long as is reasonably necessary to fulfill the purpose for which the
information was collected and to delete such information using reasonable protection measures.
(5)
Increased Oversight of Safe Harbor Programs
The amendments enhance the FTC’s oversight of safe harbor programs by imposing annual audit and reporting requirements.◆
Sweden Denies Recognition . . .
continued from page 5
___________________________________
As stated above, the ICDR had communicated with the Parties by e-mail, regular mail and, on one occasion, by certified letter.
However, Anders Eldebrandt had not signed any acknowledgment of service or the certified letter. It was furthermore unclear
as to which e-mail address the relevant documents had been sent and none of the invoked e-mails were actually provided as
evidence before the Swedish Appeal Court. In the light of another Swedish Supreme Court case from 20072 , implying that the
sending of several documents to an addressee’s correct address is sufficient to prove that at least one of the documents must
have reached the addressee, the Swedish Appeal Court found the crucial point in the now relevant case to be if it should be
considered sufficient that the ICDR had sent three documents by regular mails to Anders Eldebrandt’s place of business during a
period of two and a half months.
The Swedish Appeal Court, however, concluded that sufficient evidence that the documents had been received by Anders
Eldebrandt had not been provided and that it therefore was not evident that he had been informed of the arbitral proceedings.
As a consequence, the court denied recognition and enforcement of the arbitral award on the ground that Anders Eldebrandt
had not been provided with an opportunity to present his case in the arbitral proceedings. In this context it should also be
noted that the court found it irrelevant that certain documents that were sent after the rendering of the arbitral award could be
regarded as received by Anders Eldebrandt.
The conclusion one can draw from this is that Swedish case law is both clear and strict with regard to the requirement of the
defendant’s actual knowledge of the arbitral proceedings in order for an award to be recognized and enforced in Sweden.
Parties’ in international arbitration proceedings should therefore always remember to take the provisions of the national law of
the country where the award is eventually going to be enforced into consideration. Otherwise they may find themselves having
done a whole lot of work and spent an awful lot of money for absolutely nothing. ◆
_________
1. NJA 2010 s. 219.
2. NJA 2007 s. 157.
Spring / Summer 2014
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The Globe
The newsletter of LawExchange International
Crowdfunding from a UK Perspective
Keran Sangha
Hewitsons LLP, Northampton, England
keransangha@hewitsons.com
Crowdfunding is an emerging fundraising
method for start-up companies or other
commercial projects. It is a way to bring
together people who want to borrow
money with people who wish to lend
money. Crowdfunding is related to social
networks and online communities.
There are various forms of crowdfunding:
investment based, peer-to-peer lending,
reward based funding and donation
funding. Typically, investment based
crowdfunding is used for
start-up companies, where
investors are offered shares
or a stake in a company in
exchange for finance to get
the company off the ground.
Peer-to-peer lending is most
often between individuals and
allows money to be loaned
and borrowed with a website
as a middleman. In return for
the finance, an investor will
be rewarded with interest.
Reward based funding is
based upon an investor
receiving a specific reward for
their financial contribution and
donation funding is where an investor
does not receive anything in return for
their contribution to a charitable cause.
Crowdfunding based on reward or
donation does not involve any regulated
activities, as an investor does not share
in any profit or financial returns from the
business.
Crowdfunding can occur in various forms
including donations, sponsoring, rewards,
pre-selling, lending and securities-based
investment.
A scheme in Africa, funded by the US
Spring / Summer 2014
State Department and the World Bank to
popularise crowdfunding has proven to
be a success. The scheme is based upon a
service which delivers 30 second pitches
recorded by entrepreneurs to potential
lenders over the phone.
One of the largest global crowdfunding
platforms (www.kickstarter.com) has
since its launch in 2009, had more than 5
million people fund over 50,000 creative
projects worth $880 million.
the benefit that crowdfunding provides
to both small and medium sized
enterprises and have therefore indicated
their intention to support and encourage
crowdfunding in Europe.
Some EU states have already moved
forward in relation to crowdfunding,
for example, the Italian Security
and Exchange Commission have
passed a legislative decree which
includes provisions for equity based
crowdfunding.
Although is it unlikely that
the European Commission
will implement any legislation
before 2015, the launch of the
consultation demonstrates a
continued motive to extend EU
rules relating to finance.
Northampton, England
In 2013, crowdfunding in Europe grew by
an estimated 65% in comparison to 2011,
where crowdfunding reached 735 million
euros. The most advanced crowdfunding
market sits within the UK, where over
the past three years, crowdfunding has
trebled in size. It is thought that by 2016,
the UK crowdfunding market could be
worth £1 billion.
On 3 October, 2013, the European
Commission commenced a public
consultation seeking opinions on a
potential regulation of crowdfunding. The
European Commission has recognised
The action taken by the
European Commission
following the consultation
will assist in establishing the
future of crowdfunding in
the EU. Recent responses to a
green paper published by the
European Commission on the
long-term financing of the EU economy
verified that crowdfunding has a key
role in promoting access to finance and
encouraging sustainable growth.
Assuming that the responses to the
consultation are productive, this would
signify a forward move on the right
path if crowdfunding is to be regulated
in Europe. In the event that legislation
is implemented, specific safeguards will
need to be put into place to gain the
trust of an investor and to ensure that all
parties are sufficiently protected.◆
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The Globe
The newsletter of LawExchange International
Leighton’s Revelations a Warning for All Companies to
Review Bribery Laws
Howard Rapke
Holding Redlich, Melbourne, Australia
howard.rapke@holdingredlich.com
With one of Australia’s best known
companies now facing accusations of
bribery and corruption, Holding Redlich
partner Howard Rapke says it’s important
for all companies with business dealings
overseas to review their current actions
and policies with regards to any potential
bribery and corruption exposure.
It was recently alleged by Fairfax Media
journalists that construction firm
Leighton Holdings had been paying
kickbacks to Iraqi officials in return for
obtaining lucrative contracts from the
obligations under the law, Australian
companies that are new to international
trade, or new to doing business in what
might be called the “more problematic
countries” need to carefully consider their
activities.
Any company that operates overseas
must ensure they have proper measures
in place to make certain that bribery
is not an accepted part of the way
they do business. This message is of
particular importance to small to medium
enterprises and junior mining companies,
given that
projects in
Africa for
Australian
exploration
and mining
companies
have almost
tripled since
2005 and
the level of
investment in
this region has
doubled since
2009.
According
to Rapke,
who is one
Melbourne, Australia
of the defence
lawyers in the
Iraqi regime. The accusations in Fairfax
NPA/Securency prosecution, bribing or
newspapers are the latest in a string of
attempting to bribe foreign officials is
corruption claims that have hounded
a serious crime. “Australian companies
Leighton Holdings for the past two years.
or individuals that bribe an official in
a foreign country can be prosecuted
While many Australian companies
under Australian law and possibly
which regularly undertake overseas
the laws of foreign countries,” he says.
business activities will be aware of their
Spring / Summer 2014
Even if payments of a bribe or actions
constituting a bribe don’t result in the
desirable outcome for the organisation,
the organisation and its officials can still
be considered guilty of bribery.
In February 2010 penalties for bribery
under the Criminal Code Act 1995 were
substantially increased. The increase in
penalties reflects the serious approach
that the Australian Government is taking
with respect to bribery, says Rapke.
An Organisation for Economic Cooperation and Development (OECD)
Report in October 2012 noted that 75
percent of the top 200 companies listed
on the Australian Stock Exchange operate
in a high-risk sector, a high-risk country
or both, since 2005 it also noted that only
28 allegations of foreign bribery have
been referred to the Australian Federal
Police (AFP). Of those 28 cases only seven
remain on-going. The OECD report relies
on this data to assert that Australia’s
overall enforcement efforts have been
low.
Senior management and directors must
be well aware of what activities are legal
and illegal when their organisation, staff
or contractors are interacting with foreign
public officials. More importantly, the
staff on ground need to be guided by
documented polices and protocols.
The maximum penalty available for an
individual that breaches the Act is 10
years imprisonment or and/or a fine of
10,000 penalty units (A$1.1 million). In
________________________________
Leighton’s Revelations a Warning . . . .
continues on page 10
www.lawexchange.org / 9
The Globe
The newsletter of LawExchange International
The Australian Financial Review . . .
continued from page 4
___________________________________
And relationships were more important than transactions in the long-term evolution of a firm, he said. “You keep clients by
knowing their industry and sector. You’re not just a lawyer, you’re a business person.”
LEI chairman Auke de Vries, of Levenbach & Gerritsen Attorneys in the Netherlands, said clients needed firms that could add value
to international business matters, including transactions, expansion, and investment in the Asia-Pacific region.
Speaking at the network’s bi-annual conference hosted by Holding Redlich in Sydney last week, he admitted mid-sized European
and US firms faced similar pressures to Australian firms, such as structural and pricing changes, as well as competition from the
rise of alternative sources of legal services.
Firms in Britain regularly competed against alternative business structures for legal work, Mr de Vries said, and the LEI alliance also
offered advice on management trends in that space and how best to deal with them.
Another committee member, Fred Tannenbaum of Chicago firm Gould & Ratner LLP, said clients wanted to see the work
completed but did not have an interest in whether there were offices abroad. While global firms were rife with internal politics, he
said, referrals within the network were “genuine, not obligatory”.
“Some people don’t even have relationships with partners in their firms abroad. We know each other, trust each other and we
communicate,” Mr Tannenbaum said. ◆
Leighton’s Revelations a Warning . . . .
continued from page 9
___________________________________
additional to criminal penalties and prison, any benefits obtained from foreign bribery can be forcibly seized by the Australian
Government, under the Commonwealth Proceeds of Crime Act 2002.
In some circumstances, payments to foreign officials will be a legitimate part of doing business and may not be contrary to the
Act. Facilitation payments are currently legal under Australian law, and include payments which are considered legitimate, that
is the payments are of “minor value” and “for the sole or dominant purpose of expediting or securing performance of a routine
government action of a minor nature” and are “officially recorded”.
However, the experiences of a growing number of major companies discourage such payments being made under any
circumstances. “Businesses can achieve net gains by refusing to make payments,” says Rapke.
This can be a difficult position to take, with short term risks for business, and this difficulty is increased for smaller businesses
that may feel they lack the bargaining power of major companies. “However, with the greater focus now on corruption matters,
and the fact that the Australian government is committed to reduce corruption it is likely we will see more investigations and
prosecutions in the future,” says Rapke. “My advice is to get some advice now about your company’s procedures and dealings.
That may avoid a long, drawn out investigation and prosecution.”.◆ businesses that may feel they lack the bargaining power of
major companies. “However, with the greater focus now on corruption matters, and the fact that the Australian government is
committed to reduce corruption it is likely we will see more investigations and prosecutions in the future,” says Rapke. “My advice
is to get some advice now about your company’s procedures and dealings. That may avoid a long, drawn out investigation and
prosecution.”◆
Spring / Summer 2014
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PORTUGAL: The Rise of a Tax Haven for Individuals
and a Country (also) for Old Men
Ricardo Gonçalves de Oliveira
Marques Bom & Associados, Lisbon, Portugal
ricardo.oliveira@marquesbom.com
Portugal has made in the last years
considerable efforts in order to enhance
its tax competitiveness by introducing
a handful of measures in certain sectors
of the economy with the ultimate goal
to attract foreign investment and, as a
consequence, Investors, Highly Skilled
Professionals and Pensioners now benefit
from highly advantageous benefits.
In respect of Investors,
Portugal has introduced
a Golden Residence
Permit Program (Golden
Visa). This program
allows foreign investors
to obtain, in a speedy
and with reduced
bureaucracy, a residence
permit. In order to be
eligible for this program,
the foreign investor is
expected to develop in
Portugal, for a period of
five consecutive years, an
investment activity, which is considered
to happen when the investor (i) transfers
to Portugal capitals with a value equal to
or above 1 million Euros; (ii) creates, at
least, 10 job positions; or (iii) acquires a
real estate with a value equal to or above
500 thousand Euros.
In addition to be granted with the
opportunity to freely move inside the
Schengen Area (which encompasses
most of the European Union States and
some other European States), holders of
Golden Visas have the right to apply for
Spring / Summer 2014
the family reunification, allowing with a
simple procedure to bring into Portugal
their family, and may gain access to a
permanent residence permit and, even,
Portuguese citizenship.
The existence of a robust real estate
market makes the Golden Visa Program a
great opportunity to invest in a profitable
Lisbon, Portugal
sector, with potentiality to obtain
considerable capital gains, while allowing
investors and their families to freely move
inside the Schengen Area.
In respect to Highly Skilled
Professionals, Portugal has established
a special tax regime for non-habitual
residents. Individuals such as investors,
managers, architects, engineers, artists,
auditors, doctors, teachers and liberal
professionals that have not been
residents in Portugal for the last five years
are eligible for this special tax regime.
This tax regime, valid for ten years,
establishes a flat tax rate of 20% for the
domestic source income derived from
high added value activities. In respect to
foreign source incomes, provided that
some requirements are met with, the
incomes of non-habitual residents are
exempted from taxation in Portugal.
The possibilities for tax planning with
the regime applicable to
non-habitual residents are
really broad and clearly
allow the reduction of the
effective tax rate.
Lastly, according to the
large majority of the
Double Tax Treaties
signed by Portugal,
pensions paid by foreign
States are exempted
from taxation in Portugal.
Therefore, Pensioners that
move their residence to
Portugal will be allowed to
receive the full amount of their pension
without being subject to taxation. In
a context where the effective tax rate
to which individuals are subject is
increasing, this measure is a tax oasis in a
desert.
In conclusion, Investors, Highly Skilled
Professionals and Pensioners can now
relax in the beach, countryside or just
by the pool, enjoying Portuguese
warm weather and a nice glass of wine,
while listening to Fado, without being
concerned with their individual taxation.◆
www.lawexchange.org / 12
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With General Solicitation Now Permitted, Has New Day
Dawned for Private Placements?
Yes, but Beware of Traps for the Unwary!
Peter Barnes-Brown
Morse, Barnes-Brown & Pendleton, P.C., Waltham, MA
pbarnes-brown@mbbp.com
Companies seeking investments in the
United States must comply with the
Securities Act of 1933 (the “Securities
Act”) and related laws in all 50 states,
a regulatory framework that requires
either registration of any offer or sale
of securities with the United States
Securities and Exchange Commission
(the “SEC”) or compliance with one
of the exemptions made available by
the Securities Act. Registration is a
complicated and expensive process
which has prompted capital-seeking
companies to bend over backwards in an
effort to avail themselves of exemptions
from registration. For the past 30 years,
issuers raising investment by means of
a private placement have most often
relied upon the “safe harbor” exemption
provided by Rule 506 of Regulation D,
which notably has no limitation on the
dollar amount that an issuer may raise
from investors. Rule 506 does, however,
place two important limitations on
issuers in their capital raising efforts:
securities may as a practical matter only
be sold to “accredited investors”, and
securities may not be sold through any
form of public advertising or general
solicitation.
This exemption was significantly changed
by the April 2012 enactment of the
Jumpstart Our Business Startups Act
(the “JOBS Act”), Section 201(a) of which
eliminated the prohibition under Rule
506 against using general solicitation
to market securities being offered for
investment where all purchasers of the
securities are accredited investors. At
its July 10, 2013 open meeting, the SEC
adopted final rules allowing general
Spring / Summer 2014
solicitation, and on
September 23, 2013, those
rules went into effect.
Under newly created Rule
506(c), issuers can offer
securities through means
of general solicitation,
provided that:
•
all purchasers in the
offering are, or are
reasonably believed
by the issuer to be,
accredited investors,
•
the issuer takes
reasonable steps to
verify their accredited
investor status, and
•
certain other conditions in
Regulation D are satisfied.
General solicitation, however, has
never been affirmatively defined in the
Securities Act or the rules and regulations
adopted under it. Rule 502(c) defines it
only by way of non-exclusive examples,
including “[a]ny advertisement, article,
notice or other communication published
in any newspaper, magazine, or similar
media or broadcast over television or
radio; and [a]ny seminar or meeting
whose attendees have been invited
by any general solicitation or general
advertising. (Although the Internet did
not exist when the rule was written,
it has been interpreted to include
publicly available websites and mass
email campaigns.) In general, this has
been held to mean that there must be
a substantial pre-existing relationship
with those to whom an issuer makes
Boston, Massachusetts
an offer of securities under Rule 506,
and there is a substantial amount of
precedent interpreting what qualifies as a
substantial pre-existing relationship.
With general solicitation now permitted,
there are several potential problems
about which issuers should be concerned,
including the following:
•
Potential deterrence of investors.
•
Amended Rule 506 does not define
general solicitation.
•
Unintentional or unknowing
general solicitation.
•
Rule 506(c) may force compliance
with data privacy laws.
•
General solicitation could
jeopardize intellectual property
rights.
For details and to read full article please
see:
http://www.mbbp.com/resources/
business/solicitation-rule506.html ◆
www.lawexchange.org / 13
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Purposive Claim Construction Adopted in Prosecution of
Canadian Patent Applications
Matthew Thurlow
Loopstra Nixon LLP, Toronto, Canada
mthurlow@loonix.com
Those member firms, whose intellectual
property practice occasionally touches
Canada, should be aware of some recent
changes to the Canadian Intellectual
Property Office’s patent evaluation
criteria which could have a significant
impact on those clients looking to obtain
a Canadian patent.
In 2000, the Supreme Court of Canada
ruled that, when litigated, claims
of issued patents are to be
given purposive construction to
determine their scope in view of
what a person skilled in the art
would have understood to have
been intended, having read
the specification as a whole.
However, the scope of patent
claims prosecuted before the
Canadian Intellectual Property
Office (CIPO) continued to be
viewed using a generally literal,
component-based reading of
the claims alone. The justification for
this approach was that courts consider
finalized claims that are, in Canada,
statutorily presumed valid, and have
access to expert opinion evidence,
whereas patent examiners only have
access to prior art, their own knowledge,
and submissions of the applicant.
Following on a decision of Canada’s
Federal Court of Appeal in Canada
(Attorney General) v. Amazon.com Inc.,
2011 FCA 328, and after consultation of
the profession, CIPO in 2013 provided
Spring / Summer 2014
guidance on how it will apply purposive
construction of claims in patent
applications.
Examiners are to interpret claims using a
“fair, balanced and informed approach”
which involves reading the specification
as a whole through the eyes of the person
skilled in the art, against the background
of the common general knowledge in
Toronto, Canada Skyline
the relevant field. CIPO takes the position
that the knowledge of an experienced
examiner and any submissions from the
applicant will form a proper basis for
claim construction.
In Canada, an invention must be claimed
and disclosed so as to provide an
operable solution to a defined problem.
This informs a purposive construction as
CIPO will require specific identification of
the problem to be solved, using guidance
in the description, and not simply by
reference to prior art. Essential elements
of claims are to be determined in view of
the proposed solution to the disclosed
problem. Once identified, these essential
elements will form the basis for analyses
relating to claims scope, which include
novelty, inventiveness, support in the
specification, and promised utility.
Practically speaking, appropriate
meanings will often be fairly apparent
on the faces of claim terms. As
such, Examiners will typically
only provide detailed analysis
in respect of contested terms.
Further, Examiners may avoid
detailed analyses in, for example,
situations where it is clear that a
prior art document discloses all
claimed elements of a claim.
In time, CIPO’s approach will be
further considered and perhaps
refined by Canadian courts.
For now, this notice serves as a
reminder to take care in drafting
the specification of a patent application.
The more direct look taken by Examiners
to the specification on the issue of
claim scope and disclosure of a defined
problem to be solved suggests adding
detail to the specification. This must
be balanced, of course, with the risk of
introducing grounds for invalidity vis-àvis utility promised in but not supported
by the specification. Clarity on the scope
of this risk should be provided when the
Supreme Court of Canada addresses this
matter (which is likely in 2014). ◆
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Prohibition of Distribution of Goods on “eBay“
Dr. Markus Widemann
Zirngibl Langwieser, Berlin, Germany
m.wiedemann@zl-legal.de
Market dominant manufacturers do not
generally infringe antitrust law if they
supply their distributors subject to the
condition that the goods shall not be
distributed on sales platforms such as
“eBay”. In a selective distribution system
a prohibition of online distribution on
certain sales platforms is admissible
if it serves to secure the quality
image of the manufacturer. A general
prohibition of online distribution,
however, is problematic with regard to
antitrust law aspects. In any case, the
Berlin, Germany
manufacturer shall take care that the
selective distribution system is realized
consequently and in a non-discriminatory
manner.
Manufacturers of branded goods have
a legitimate interest in that the product
image is preserved the product image
within the goods distribution. They do so
Spring / Summer 2014
by making large investments so that the
product is positioned on the market for
specific buyer groups or that the buyer
connects the product and its distribution
with an above-average quality level.
The distribution of goods on the internet
is not always consistent with these
interests of the manufacturer. In selective
distribution systems, therefore, the
sale of goods on the internet is often
excluded. The distributor runs the risk of
no longer being supplied if infringing this
prohibition.
However,
when
excluding
online
distribution,
the
manufacturer
has to
take into
consideration
restrictions
according
to antitrust
law. A selective
distribution system is only admissible
if the selection of distributors is made
by considering objective reasons
of qualitative kind. The selection of
distributors has, thus, to be supported by
criteria such as suitability of distributors
and their personnel as well as the
equipment of the shop in which the
goods are sold.
A recent decision of the Berlin Chamber
Court shows that limitations of online
distribution may be admissible. They,
however, often are not successful since
the selective distribution system is not
realized consequently and in a nondiscriminatory manner for all distributors.
Chamber Court: Inadmissible
connection of supply of goods and
prohibition of distribution of goods on
“eBay”
The Berlin Chamber Court prohibited
in its decision of 19 September 2013
a market dominant manufacturer of
school satchels to predicate the supply of
distributors on the provision to not sell
the goods on the sales platform “eBay”
or similar internet platforms such as
“Amazon”.
Two judicial instances, two different
reasonings
Although the Berlin Chamber Court to a
great extent confirmed the decision of
the Regional Court Berlin of 21 April 2009
in its result, it, contrary to the Regional
Court, basically acknowledges that a
distribution prohibition with regard to
certain online sales platforms may be
admissible in the scope of a selective
distribution system. The court supports
the prohibition in the underlying case
by referring to other reasons than the
previous instance did.
________________________________
Prohibition of Distribution of Goods . . . .
continues on page 17
www.lawexchange.org / 15
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The newsletter of LawExchange International
LawExchange Conference in Sydney, October 2013
Former Prime Minister Hawke
with two LEI bodyguards
The delegates hard at work.
Stunning view from HR’s conference room.
A delegate takes a nap.
Here’s a toast to LawExchange.
Yup, hard at work!
Spring / Summer 2014
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Prohibition of Distribution of Goods . . . .
continued from page 15
___________________________________
Regional Court: Prohibition of selling
goods on “eBay” inadmissible
The previous instance generally
questioned whether a selective
distribution system for the school
satchels in question is necessary at
all. They are commodities that neither
require special handling instructions,
nor are they prestige products having an
“aura of exclusivity”.
Anyway, the general prohibition of
selling goods on “eBay” is an inadmissible
restriction of competition, since the
trade on “eBay” is not an admissible
objective and qualitative selective
criterion when selecting a distributor.
It is only to be focused on the nature of
the goods, the distributors themselves,
their qualification and their range of
offered services (e.g. repair services).
Selling goods on “eBay”, however, is
not connected to specific product
characteristics.
Berlin Chamber Court: Prohibition
to sell goods on “eBay” may be
admissible…
The Berlin Chamber Court, however,
acknowledges that the manufacturer
of the distributed school satchels has
built up a product image that signals
a certain quality level which is above
average. Therefore, it is in principle not
to be objected that the manufacturer
safeguards by a selective distribution
system that this image is not damaged by
the sale via certain channels.
Spring / Summer 2014
The newsletter of LawExchange International
According to the Chamber Court, the
sale on the platform “eBay” is suitable to
damage the image of highly qualitative
school satchels and school rucksacks of
the manufacturer. “eBay” is considered in
public as “flea market-like” and is often
mentioned when it comes to product
piracy.
Decision in accordance with decisions
of the European Court of Justice
The prohibition by the Regional Court
was only confirmed in this particular case,
since in this case the manufacturer had
not realized the selective distribution
system consequently and in a nondiscriminatory manner.
The decision of the Chamber Court is
in accordance with the decisions of the
European Court of Justice. A selective
qualitative distribution system is not
to be objected for antitrust reasons
pursuant to European jurisdiction if it
is realized in a consequent and nondiscriminatory manner. The distribution
restriction must be appropriate and
necessary in order to preserve the
quality image or to safeguard the
correct use of the product. Neither does
a general distribution prohibition on
the internet comply with article 101
TFEU, nor the attempt to preserve the
“prestigious character” of goods merely
by distribution restrictions (cf. European
Court of Justice, decision dated 13
October 2011, file number C-439/09).
In case the manufacturer de facto
excludes a distribution of the goods on
the internet, not even a legalization by a
so-called “group exemption” can be taken
into consideration.
Although it could not be proven that the
manufacturer allowed other distributors
to sell the respective school satchels
on “eBay”, he distributed the school
satchels via a dubious discounter chain,
the shops of which did not meet the
requirements set by the manufacturer
himself in order to secure the quality
image. In case the selling of the goods
via dubious discounters has similar risks
of deteriorating the product image like
selling goods on “eBay”, the manufacturer
acts in a discriminating manner and
infringes antitrust law if he on the one
hand prohibits sale on “eBay”, and on the
other hand supplies the discounter.
Thus, manufacturers in fact have
possibilities to exclude certain
distribution channels on the internet
in the scope of a selective distribution
system. A prerequisite for this is that the
distribution restrictions are appropriate
and the distribution system is realized
in a consequent and non-discriminatory
manner. Restrictions of the distribution
on the internet may also result in an
infringement of antitrust law if the
“online” distribution is handled in a
coherent manner, and on the other
hand stationary distributors are supplied
that endanger the quality image just
as the distribution via certain internet
platforms.◆
The Chamber Court clarifies that it
would consider as alarming the general
exclusion of the distribution of goods
on the internet. There are exclusive sales
platforms on the internet, where there is
no risk of image deterioration.
. . . however only in case of nondiscriminatory realization of the
distribution system
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Crowdfunding Takes a Step Forward Toward Becoming Law From a US Perspective
Karl Ahlm
Gould & Ratner LLP, Chicago, Illinois
kahlm@gouldratner..com
After significant delay In October
2013, the U.S. Securities and Exchange
Commission (“SEC”) released proposed
regulations that would adopt the
crowdfunding concept first introduced
as part of the 2012 Jumpstart Our
Business Startup (“JOBS”) Act. Although
the JOBS Act created a new exemption
from the registration obligation under
Section 5 of the Securities Act of 1933
for securities issued in crowdfunding
offerings, the effectiveness of
this new exemption has been
delayed pending adoption
by the SEC of implementing
regulations. The proposed
regulations were subject to a
public comment period that
ended in early February 2014.
Comments remain under
review by the SEC.
At least under the proposal
regulations, given that
an issuer using the
crowdfunding exemption
may only sell $1,000,000
worth of crowdfunded securities in any
12-month period, and the significant cost
and burden associated with ongoing
reporting obligations (in some cases
not unlike those applicable to public
companies), it is not at all clear how
useful the crowdfunding exemption
will be. Among the highlights of the
proposed regulations are the following:
•
Offering Limits.
-
Limits on How Much an Issuer
May Sell. An issuer may only
Spring / Summer 2014
raise up to $1,000,000 through
the crowdfunding exemption
in any rolling 12-month period
through an offering conducted
through either a registered
broker or an online funding
portal (an “intermediary”).
While an issuer may only sell
up to $1,000,000 through the
crowdfunding exemption in
any 12-month period, it may
and 5% of the greater of annual
income or net worth. If an
investor’s annual income or net
worth exceeds $100,000, his or
her investment in crowdfunded
offerings in any 12-month
period may not exceed the
greater of 10% of his or her
annual income or net worth,
but in any event not to exceed
$100,000. While an investor in a
crowdfunding offering need not
be an “accredited investor”, and
there are no specified investor
sophistication requirements,
an individual investor’s income
and net worth would be
calculated in the same manner
as in determining whether he
or she is an “accredited investor”
for Regulation D purposes, thus
excluding the value of his or
her primary residence from net
worth, but an investor would be
allowed to aggregate his or her
spouse’s income and net worth
with his or her own.
Cloud Gate (the “Bean), Chicago, Illinois
also engage in other private
offerings (in addition to the
crowdfunding offering).
-
Limits on How Much Investors
May Invest. If both an
investor’s annual income
and net worth are less than
$100,000, his, her or its
investment in crowdfunded
offerings in any 12-month
period would not be permitted
to exceed the greater of $2,000
•
Disclosure Requirements. Prior
to commencing the offering,
crowdfunding issuers would
be required to file with the SEC
and make available through the
intermediary a newly proposed
Form C offering statement
containing the following
information:
________________________________
Crowdfunding Takes a Step Forward . . .
continues on page 20
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National Code of Criminal Procedures
Manuel Rodríguez Díaz
Gallardo, Igareda, Servín, Rodríguez & Murillo, Mexico City, Mexico
manuel.rodriguez@gisr.com
On March 5th, 2014, the Ministry of the
Interior (SEGOB), published in the Federal
Official Gazette, the National Code of
Criminal Procedures. This Code compiles
and integrates the adversarial criminal
process (this means oral arguments and
the innocence presumption in favor of
the accused) established on the criminal
law amendments of 2008.
Up to date, there are 32 States in the
Mexican Republic, which have their own
Criminal Codes; one for the process, and
one for the substantive laws. Therefore,
this new Code tries to unify the criminal
process all over the country. However,
the substantive criminal codes will still be
local.
The main purpose of this new Code is
to establish rules that help repair the
damages caused to the victims or their
families, the investigation, the process,
and the sanction of crimes, clear up the
facts, better protection for the innocent
Mexico City, Mexico
people and imposing sanctions so the
guilty ones do not walk out freely.
Moreover, the Code tries to “avoid
spaces of impunity arguing territory
Spring / Summer 2014
issues or application matters, but
always protecting the human rights”, in
accordance to the Senate Chamber on a
press release.
Due to the fact that this new legal
regulation tries to establish oral
arguments on trials, it is necessary to
adequate the entire infrastructure,
including the normative and the
organizational one, equipment, and
personal structures, which depend on the
jurisdiction and territoriality of each State
of the Mexican Republic. Nevertheless,
the National Code of Criminal Procedures
will take effect in the National territory
on June 18th of 2016, which means it
will start taking its effects gradually.
Jalisco does not have a certain date for
the enforcement of the National Code of
Criminal Procedures.
This new law, approved on December
of 2013, creates new rules on the
investigation, process and sanction
of crimes by the local
and federal courts. For
example, oral trials will be
held in public hearings so
that interested people and
citizens can observe them.
However, it establishes
that neither media, nor the
press can have access to
those public hearings.
In addition, this Code
establishes vanguard
rules regarding new
technologies to solve court
cases (take for instance
the new provision that
empowers the authority to seek people’s
geographic location through their cell
phones), videoconferences in real time,
and any other forms of communication
for the reception and transmission
of evidence. Also, the recording or
reproduction of photographs, images,
sounds, videos, etc., will be considered as
part of the corresponding files and court
orders. The Code establishes as well, that
all the provisions related to the pursuit
of crimes are focused on guaranteeing
the human rights; mainly all of those that
imply an act of nuisance.
Another great input of the National
Code of Criminal Procedures it’s that
the defendants will receive a copy of all
the documents that integrate the basic
investigation file, such as pictures, videos,
recordings, reports, or expert’s opinions.
Within the new provisions that integrate
this Code, we can find all of those that
broaden all the preliminary injunctions
for the accused, the ones that establish
the innocence presumption in favor
of the suspect, and even the ones that
allow pacts and/or agreements between
the victims and their victimisers before
the judge’s ruling. The intention of this
measure is to reduce the work of the
Criminal Courts.
In the same way, this Code regulates the
officious pre-trial detention in cases of
organized crime, first-degree murder,
rape, kidnapping, human trafficking,
and violent crimes committed with guns
and explosives, which implicate that the
accused will face the criminal process
from prison.
The National Code of Criminal Procedures
also set forth alternative dispute
resolutions, due to the fact that it
establishes a “reparatory agreement”
between the accused and the victim, in
cases of recklessness or property crimes,
or all of those prosecuted by the victim’s
complaint. ◆
www.lawexchange.org / 19
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The newsletter of LawExchange International
Crowdfunding Takes a Step Forward . . .
continued from page 18
___________________________________
-
Financial Disclosure. The extent of financial information required to be disclosed would depend upon the amount
of the securities being offered using the crowdfunding exemption. In addition to a management discussion and
analysis of financial condition and results of operations, issuers (including newly formed companies with limited
operating history) would be required to provide the following:
§
For issuers offering $100,000 or less, the tax return for the most recently completed year and financial statements
certified by the principal executive officer.
§
For issuers offering more than $100,000 but less than $500,000, U.S. GAAP financial statements (for the shorter of
the two most recently completed fiscal years or the period since formation) reviewed by an independent public
accountant.
§
For issuers offering more than $500,000, U.S. GAAP financial statements (including balance sheet, income
statement, statement of cash flows and statements of changes in owners’ equity and footnotes (for the shorter of
the two most recently completed fiscal years or the period since formation)), audited by an independent public
accountant.
-
Other Information. Other required disclosures include the name, legal status, physical and website address of the
issuer; the names, and business experience during the preceding three years, of the officers and directors; names of
owners of 20% or more of the issuer’s voting securities; a description of the business of the issuer and its anticipated
business plan; a description of the financial condition of the issuer; a description of the intended use of proceeds
of the offering; the target offering amount and price of the securities being offered; a description of the ownership
and capital structure; the amount of compensation paid to the intermediary for conducting the offering, including
any referral fees; the number of employees of the issuer; risk factors; description of the material terms of any
indebtedness and any exempt offerings conducted within the past three years; and related party transactions.
-
Annual Updates. An issuer would be required to amend its disclosure to report any material changes and to file
annual reports (including financial statements of the nature described above) within 120 days following the end of
each fiscal year for so long as the securities issued pursuant to the crowdfunding exemption remain outstanding or
until the issuer becomes a public company.
•
Limits on Advertising. In the case of crowdfunding offerings, an issuer is only permitted to post a limited notice or link
directing investors to the broker or funding portal conducting the offering, together with limited information about the
issuer, the securities being offered and the closing date of the offering period.
•
Progress Updates. The issuer would be required to provide updates on its progress in raising the targeted offering
amount, not later than five business days after reaching one-half and 100% of the target offering amount. An investor
would be permitted to cancel an investment commitment until 48 hours prior to a deadline to be identified in the
issuer’s offering materials.
• Other. Shares purchased in a crowdfunding offering are subject to significant restrictions on transfer during the oneyear period following the date of purchase. Certain issuers would not be eligible to use the crowdfunding exemption,
including public companies, non-U.S. companies, issuers without a specific business plan or with a business plan to
engage in a merger and certain bad actors. ◆
Spring / Summer 2014
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The Globe
The newsletter of LawExchange International
Significant Events at LawExchange Member Firms
LawExchange Conference in Sydney, October 2013
d l t and
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The Globe
The newsletter of LawExchange International
Delegates Enjoying the Evening
Sydney
October 2013
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The Globe
The newsletter of LawExchange International
The Global Postman
AUSTRALIA
Holding Redlich
http://www.holdingredlich.com.au
Paul Venus
paul.venus@holdingredlich.com.au
Chris Lovell
chris.lovell@holdingredlich.com.au
Ian Robertson
ian.robertson@holdingredlich.com.au
Brisbane
Melbourne
Sydney
Dr. Dieter Lehner
d.lehner@zl-legal.de
Vienna
Kristiaan Caluwaerts
k.caluwaerts@legaloffice.be
Antwerp
Brussels
Eduardo Romeiro
cer@lrilaw.com.br
Nilson Lautenschlager Jr.
nlj@lrilaw.com.br
São Paulo
Sandy Nixon
jnixon@loonix.com
Toronto
Domingo Eyzaguirre
deyzaguirre@gmoe.cl
Santiago
AUSTRIA
Zirngibl Langwieser
http://www.zl-legal.at
BELGIUM
Caluwaerts & Uytterhoeven
http://www.legaloffice.be
BRAZIL
Lautenschlager, Romeiro e Iwamizu
http://www.lrilaw.com.br
CANADA
Loopstra Nixon LLP
http://www.loopstranixon.com
CHILE
García, Montes, Olivos, Eyzaguirre & Cía, Abogados
http://www.gmoe.cl
Submissions
Comments, questions, suggestions and requests for additional copies of this newsletter can be directed to:
Fred Tannenbaum
Gould & Ratner LLP, Chicago, Editor and Publisher
ftannenbaum@gouldratner.com
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The Globe
The newsletter of LawExchange International
The Global Postman (continued)
CHINA
Zhong Lun Law Firm
http://www.zhonglun.com
Scott Y. Guan
scottguan@zhonglun.com
Beijing Chengdu
Guangzho
Hong Kong
Shanghai
Shenzhen
Wuhan
Lewis Isaacs
lewisisaacs@hewitsons.com
John Dix
johndix@hewitsons.com
Richard Ingram
richardingram@hewitsons.com
Cambridge
Milton Keynes
Northampton
Denis Salama
d,salama@ayache-salama.com
David Ayache
d,ayache@ayache-salama.com
Paris
Hans-Jörg Krämer
h.kraemer@zl-legal.de
Jan Krekel
JKrekel@zl-legal.de
Berlin,
Frankfurt a.M.
Munich
Vijay Sambamurthi
vijay@lexygen.com
Bangalore
Omer Ben-Zvi
omer@iblegal.com
Tel Aviv
Federico Galgano
fgalgano@galgano.it
Bologna
ENGLAND
Hewitsons LLP
http://www.hewitsons.com
FRANCE
Ayache Salama & Associés
http://www.ayache-salama.com
GERMANY
Zirngibl Langwieser
http://www.zl-legal.de
INDIA
Lexygen
http://www.lexygen.com
ISRAEL
Israeli, Ben-Zvi
http://www.iblegal.com
ITALY
Studio Galgano
http://www.galgano.it/
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The Globe
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The Global Postman (continued)
JAPAN
Uchida & Samejima Law Firm
http://www.usif.jp/index_en.html
Masahiro Samejima
samejima@uslf.jp
Tokyo
Carlos Murillo
carlos.murillo@gisr.com
Rodrigo Igareda
rodrigo.igareda@gisr.com
Guadalajara
Mexico City
Auke de Vries
aukedevries@levenbach.nl
Roland E. Gerritsen
r.gerritsen@levenbach-geritsen.nl
Amsterdam
Schiphol
Francisco Marques Bom
Marques.bom@marquesbom.com
Lisbon
David Reith
dsr@lindsays.co.uk
Dundee
Edinburgh
Glasgow
Jedburgh
Woo Tchi Chu
tcwoo@rwwnet.com.sg
Singapore
Ricard Gené
Ricard.gene@ventura-garces.com
Barcelona
Madrid
MEXICO
Gallardo, Igareda, Servin, Rodriguez y Murillo, S.C.
http://www.gisr.com
NETHERLANDS
Levenbach Advocaten
http://www.levenbach.nl
Levenbach & Gerritsen
http://www.levenbach-gerritsen.nl
PORTUGAL
Marques Bom & Associados
http://www.marquesbom.com
SCOTLAND
Lindsays
http://www.lindsays.co.uk
SINGAPORE
Robert Wang & Woo LLP
http://www.rwwnet.com.sg
SPAIN
Ventura Garcés & López-Ibor
http://www.ventura-garces.com
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The Globe
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The Global Postman (continued)
SWEDEN
Ramberg Advokater
http://www.ramberglaw.se
Mikael Holtzberg
Mikael.holtzberg@ramberglaw.se
Heisingborg
Malmö
Stockholm
Peter Barnes-Brown
pbb@mbbp.com
Cambridge
Waltham
Salt Lake City
Fred Attea (for all offices)
fattea@philllipslytle.com
Albany
Buffalo
Garden City
Jamestown
New York City
Rochester
Mike Kinkelaar
mjk@procopio.com
James G. Perkins
jgp@procopio.com
San Diego
Del Mar Heights
Silicon Valley
Phoenix
Austin, Texas
Fred Tannenbaum
ftannenbaum@gouldratner.com
Chicago
Fred Hutchison
fhutchison@hutchlaw.com
Blacksburg
Raleigh
USA – BOSTON
Morse, Barnes-Brown &
Pendleton, P.C.
http://www.mbbp.com
USA – BUFFALO
Phillips Lytle LLP
http://www.phillipslytle.com
USA – CALIFORNIA
Procopio, Cory, Hargreaves & Savitch LLP
http://www.procopio.com
USA – CHICAGO
Gould & Ratner LLP
http://www.gouldratner.com
USA – RALEIGH
Hutchison Law Group PLLC
http://www.hutchlaw.com
Disclaimer . . .
The Globe is a compilation of texts produced by various members of LawExchange International, an independent group of separate law firms.
While the articles and opinions contained in The Globe are considered by their authors to be accurate summaries of current general legal matters
within their respective jurisdictions, neither the authors, their firms, Gould & Ratner (as publisher), nor LawExchange International can take any
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