Bearer Shares Limitations
29 April 2015
In a move designed to further discourage the use of bearer shares in the Republic of Panama, the Panamanian Superintendency of Banks issued, on December 2, 2014, the General Resolution of the Board of Directors SBP-GJD-0009-2014 in which they established measures for the identification of the real owners or final beneficiaries of Panamanian corporations.
This latest resolution sets out a list of requirements that all Panamanian banks must comply with in a period of twelve months counted from the issuance of the resolution, for clients whose corporations allow the issuance of bearer shares.
As a first option, the bank must request the client to modify the articles of incorporation of its company in order to specifically state that it can only issue nominal shares or altogether ban the issuance of bearer shares, whichever the client prefers. It is important to note that even before the promulgation of this resolution, this suggestion has been applied regularly in the past few years by local banks.
The second scenario is when the client has a corporation and the shares have been issued to the bearer. The bank can maintain the client in this scenario as long as: i) the bearer shares are kept in custody by the bank or by an authorized custodian, and ii) a sworn statement is delivered to the bank detailing the information of the real owner or final beneficiary. If the information contained in the sworn statement varies in any form, the client must update the information within thirty days after the fact; otherwise, the bank can proceed with the closure of the account.
Finally, these recent changes made by the Superintendency are just another way to enforce the use of nominal shares in Panamanian corporations. They also strengthen the custodian regimen applicable to bearer shares, as stated in Law No. 47 of August 6, 2013.
Article by Beatriz del C. Cabal Chen, Panama
Dispute Settlement Mechanism under SAFTA Agreement: A Tiger without Teeth
29 April 2015
The idea of regional cooperation in South Asia materialized in 1985 after the adoption of Charter establishing the organization of South Asian Association for Regional Co-operation (SAARC). In order to promote trade and economic growth among SAARC Member States, Agreement on South Asian Free Trade Area (SAFTA) was signed on January 6, 2004 and it entered into force on January 1, 2006.
Dispute settlement mechanism of any trade agreement remains as a crucial part of such agreement. SAFTA has also provided for a dispute settlement mechanism that involves bilateral consultations, recommendations of Committee of Experts (COE) and review by the SAFTA Ministerial Council (SMC). Article 10 of the SAFTA Agreement has placed the SMC as the highest decision making body of SAFTA and has also entrusted the responsibility for the administration and implementation of the Agreement and all decisions and arrangements made within its legal framework. Similarly, the COE has been designated to monitor, review and facilitate implementation of the provisions of the Agreement and undertake any task assigned to it by the SMC. COE also serves as a Dispute Settlement Body under the Agreement.
Article 20 of the SAFTA Agreement has enshrined provisions related to the dispute settlement mechanism. Even though the Agreement has made a trivial attempt for dispute resolution, there are several lacunae in the mechanism. To begin with, any dispute arising among the Contracting States should be tried to settle amicably through the bilateral consultations but the Agreement does not shed much light on what kind of disputes could be referred for the resolution. Besides, success of consultation between the parties to the dispute with a view to find a mutually satisfactory solution is largely contingent upon the bilateral relation of such parties.
Upon failure of dispute resolution through consultation, dispute can then be referred to the COE. COE after investigating into the matter can make recommendations to the disputing parties. Such recommendations not being binding to the parties can create a room for non-compliance. Similarly, the Agreement is silent on procedures for the operation of the COE as well as on the qualification of its members. It further creates ambiguity in dispute settlement process. Additionally, the appellate review process is also deficient. Any Contracting State, which is a party to the dispute, may appeal the recommendations of the COE to the SMC. Lack of clarity on the scope of review and basis for upholding, modifying or reversing the recommendations of the COE undoubtedly generates reluctance on the parties to make an appeal.
Where the COE or SMC concludes that the measure subject to dispute is inconsistent with any of the provisions of SAFTA Agreement, it can recommend the concerned Contracting State to bring the measure into conformity with SAFTA Agreement. In addition to its recommendations, the COE or SMC may suggest ways in which the concerned Contracting State could implement the recommendations. As the SAFTA Agreement is not comprehensive in terms of dispute settlement process, such provision allows discretion to the COE or SMC to devise any procedure it deems fit for investigating or reviewing the dispute and making recommendations. Such open-ended discretion may at times raise question on credibility of remedy provided.
In order to strengthen the existing dispute settlement mechanism under the SAFTA Agreement, the mechanism should be reviewed clarifying nature and types of dispute. Composition of COE and qualification of COE members; detailed working procedure of COE and SMC; and scope of appeal review should be clearly prescribed.
Article by Rojina Thapa, Nepal
Winter Seminar in Kitzbuehel – A comprehensive view on M&A and the Austrian Alps.
29 April 2015
At the end of January there are not many better places to discuss an M&A process than at the foot of the Kitzbuehel mountains. Around 100 participants from all around the world with a mix of geographical and professional backgrounds enjoyed the sophisticated level of discussions and the perfect slopes of the Austrian alps.
The seminar started Wednesday night with a short introduction of the OC Kistian Ford, Lucas Hänni and Rainer Kaspar and a gathering at the Hotel zur Tenne, one of the oldest and most typical hotels in the centre of Kitzbuehel.
The Thursday morning session focused on the auction process, the interdependencies of in-house counsels and corporate lawyers and intellectual property rights in M&A transactions. The afternoon break was put to good use with AIJA’s first ski race, a fierce battle of more or less proficient skiers with winners from Austria (female) and Greece (male). In the afternoon session, maybe the most factor of M&A transaction, tax, was discussed. The session took place at the top of the Hahnenkammbahn, which is also the start of the famous downhill ski race, currently starring in movie theatres as “one hell of a ride”.
On Friday morning, panelists and the audience discussed due diligence, followed by recent issues of transaction agreements and merger control clearance topics. The afternoon session was held in form of a case study: a cross boarder M&A deal including the purchase of affiliated companies in different countries was reviewed under selected national laws.
Topics of the final day were the director’s liability, crowdfunding as a form of alternative financing and the role of employees in a transfer of undertaking. The official part of the AIJA seminar ended with a presentation of the key note speaker Rob Weber, an Associated Professor at Georgia State University, who presented several cases dealing with advisor firms’ liability in case of representing/advising several parties and “ignoring” the occurring conflicts of interests.
Not having had enough of the challenging academic and social events of the preceding days, many of the seminar participants attended the optional sledging at night which turned out to be not as easy as one might have thought.
It was another great AIJA event, inside and outside the conference room. The combination of business and fun is what made this skiing event so successful. We are now already looking forward to next year’s winter seminar in the Dolomites!
Article by Wolfgang Guggenberger and Rainer Kaspar, Austria Pictures from the seminar available here
Discovering AIJA in Santiago de Chile
29 April 2015
As a lawyer member of the Costa Rican Bar, specialized in Civil and Commercial Law; and also as a Law Lecturer, I am always looking forward to attending different seminars and congresses as I have the clear understanding that Law Sciences are progressive, and change in a very fast basis.
Approximately in Mid - September 2014, I received an email from a colleague of mine sent originally by the Costa Rican Lawyer´s Bar stating that there was going to be an AIJA conference related to Mercosur Disputes to take place in Santiago, Chile, in November 2014. That e-mail caused a powerful interest on me, and something told me from my personal interior that I had to mandatorily apply. Even though I did not have the economical resources to afford its price, the e-mail stated that there was a scholarship available. A lot of people told me that I was going to lose my time by applying for the scholarship as a lot of people were going to apply, but in despite of that something told me that I had to do it, so I finally did; --even though I was not sure about what AIJA was, as that organization is not very well - known in Costa Rica, and most of the people and Lawyers do not even know what that is, or where it is located, or what do they do.
Some months later, I got the good news that the decision of applying for the scholarship had been one of the wisest decisions I´d ever taken. I received the great news, --sent by Mr. Marletta--, that AIJA had approved my scholarship. I could not believe that, as many organizations in Costa Rica would not have the sufficient funds to give those sorts of scholarships, and I had never been related to a foreign organization. However, I gave all the necessary information to Mrs. Masure, who was extremely helpful at arranging my itinerary.
At last, when time had come to board the plane that would take me to Chile, making a stop in Panama, a great feeling of excitement had taken place inside of me. A lot of friends, --many lawyers-- were clearly regretted for having recommended me not to apply for the scholarship, so it made me feel even happier. I definitely knew that the trip was going to be an awesome opportunity for me not only to know more about Commerce Law, but also to meet people, and learn more about cultures. Many other reasons made me have a great expectative of the whole trip. In fact, more than seven hours flying, did not feel at all, as I was thinking the whole trip not only about the great opportunity that AIJA was giving me, but also about the great opportunities that I guess they have given to many lawyers in the past. I was also very excited that I was going to be in Chile, which I do not know why, but I had always had great interest to be there.
Finally I arrived, --now a little tired in physical terms--, but still very happy and excited for my trip. I landed in Santiago and took a taxi to the hotel which I must say at this point that I did not expect AIJA to arrange my nights at a fancy hotel as the Intercontinental, but they did; and that grew up the anxiety that I had by then to know more about AIJA. Well, I finally made the check –in, and immediately went over for dinner, as I was starving. I definitely had time during that night to think a lot about many things, and those things then began changing my points of view from life in general; not only about myself, but also about the world and the people, specifically the way I used to appreciate it. Feelings were also combined with Christmas winds, joined also with the spirit of that fresh and cool Santiago night!. I got back to the hotel that night with a mood of melancholy and happiness at the meantime.
The next day, I took breakfast and showed up at the event on time, as I was very excited to be part of this congress. When I was giving my name to the sweet lady that was checking it with the list; I saw that a woman who was working around heard my name, and suddenly came to introduce herself to me, and my surprise was that this charming lady was Mrs. Masure and I was very happy as I knew that I had certainly met the first person during my trip! I then checked myself to assist to the seminary related to Mercosur Disputes, and focused my attention on this. What an interest subject is this! I had no idea about the millions of dollars that involve this matter, and every second that passed by made me submerge more into the deeps of that complex topics related to commercial law, which is the area of law that I most love.
Some hours later we made a quick break to drink coffee, and then I had the pleasure to meet Mr. Marletta, after I recognized his face since I had looked at his linked – In profile days before. That was the second person that I got to know by then, and I was even more excited!
Words might barely explain what I lived during the following days in Santiago. I exchanged business cards with lawyers raised all around the world, I assisted to the wonderful lunches and dinners that AIJA had perfectly set up for us both inside and outside the hotel, I went over to the lovely vineyard named Santa Rita where AIJA´s organization took us. I can say without a doubt that I learned during those days a lot about specific law topics, but that was nothing compared to the magic of the whole event that I lived in Santiago. I definitely knew what being alive is, and combined that with making friends all over the world, including the honor of meeting Mr. Dirk, --AIJA´s President--. What a charismatic person! I will not ever forget neither the wonderful dinner that AIJA had set up for us in Santiago downtown at that fancy and prestigious club!
I was impressed on how AIJA had taken care of every single detail during the trip for all of us, and had taken that to perfection. Finally, the congress got to its end, and everything seemed to pass in one second! I got back to my country with more general knowledge in certain specific law areas, but I brought with me the precious moments that I lived there. I brought with me dozens of business cards, and friends too. I came back with more energy to face my job, and more ideas to combine it with. I came back looking forward to get a computer in order to become an AIJA member, and also with the great intention in the soon future to represent AIJA in Costa Rica, as many members suggested that to me during the stay in Santiago. I finally brought back more inspiration, more experiences, vibrations, and many more reasons to appreciate the exquisite beauty of life. In few words, the trip met even more than all of the expectatives that I had from it.
Now I am part of the great association of AIJA, and am waiting to receive orders from them. I have offered my help for anything they consider I might be helpful at. I close down this letter, by stating and replying once more, my appreciation with this organization, and specially with their bright members, organizers, and staff in general that I got to meet in Santiago.
Sincerely yours, and from a Sunny Costa Rican Day,
Article by Juan José Acuña Leandro, Costa Rica
AIJA Scholarship, Santiago de Chile 2014
LL.M. in Transnational Commercial Practice - Reduced rates for AIJA members
29 April 2015
The Center for International Legal Studies will continue to offer members of AIJA 50% tuition scholarships for the LL.M. in Transnational Commercial Practice in 2016.
Two-week sessions are held in April and June in Budapest. The degree is granted by Lazarski University, one of Poland’s top-ranked law schools, and the program is conducted in cooperation with Eötvös Loránd University and Boston University School of Law. The degree can be completed with two-week sessions in April and/or June over two or three years. Sixteen lawyers from 11 countries participated in the spring 2015 session. The standard tuition has been fixed at US $3400 for April 2016 and $3800 for June 2016. AIJA members interested in the AIJA LL.M. scholarships should advise the AIJA office and the CILS office.
Supporting the rule of law in Syria
29 April 2015
[caption id="attachment_6144" align="alignleft" width="300"] Karen Ramm-Schmidt (AIJA) and Mazin Albalkhi (ILAC)[/caption]
ILAC, the International Legal Assistance Consortium, recently launched a two-year program that will support protection of the rule of law in parts of Syria outside of the regime’s control. Working with the Free Independent Judicial Council and with the Syrian Interim Government’s endorsement, ILAC will help establish documentation centers that will help provide simple legal services to those living in areas not controlled by the Syrian Regime.
The AIJA Human Rights Committee is now involved in a new project and is sponsor of a new initiative. Several Syrian judges fled the country and openly refused to serve the regime: they can now follow English classes thanks to the generous donation of AIJA and the SOS Avocats Programme.
AIJA and ILAC aim to provide these judges with the possibility of accessing knowledge and information so that they can re-build their career and life. Both organisations are glad to partner on this challenging and promising initiative.
A nice sense of achievement
29 April 2015
Some months ago all AIJA members have received a survey enquiring about the value of AIJA membership: why they are members, if they are happy with AIJA membership today, which new member benefits they would like to have.
Over 30% of AIJA members took the survey, providing us with a solid sample of data. 80% of respondents are happy with what AIJA offers today: this is great news and we thank them for that! No surprise that most AIJA members consider the possibility to have face to face networking opportunities as well as discounted rates for AIJA events as the most important reasons why they are members. At AIJA we try our best to maximize networking possibilities, being it online or even more at our events. This is what makes our association special and distinguish us from other legal networks.
What about new member benefits? Most members said they would consider very positively attending webinars (33% of respondents) and having an online tool to manage business referrals (42%). You asked, we did it!
A successful webinar on how international lawyers can effectively use LinkedIn was held on 10th March. Over 200 attendees enjoyed a lively presentation full of practical tips. More webinars are being organised for the rest of the year: feel free to forward me your ideas about topics you would find relevant to your practice.
Since early March, AIJA members can log in onto the AIJA website and use our new platform for business referral. Identify your need, make a question and check what the AIJA network has to offer. Have a look at pending questions and opportunities here: AIJA can give you even more than what you already get!
Talking about new projects, something brand new is coming up soon. Details are still top secret but rumours say that next Autumn AIJA will be leading the campaign “Young Lawyers’ Week”, an occasion to celebrate young lawyers in different parts of the world… Stay tuned for further information.
On a more personal note, I have the pleasure to announce that I have been shortlisted for a prestigious award in the associations’ world. I am shortlisted as “Young Leader of the Year” at the International and European Association Awards. This is THE award for association professionals and a remarkable recognition of my professional achievements. This nomination wouldn’t have been possible without the huge trust and support I have always got from the AIJA Bureau since my first day at AIJA and the excellent collaboration I have had with AIJA members and staff. Thanks for sending me good vibes on the 6th May, during the final award ceremony taking place in Lausanne, Switzerland.
On this festive note, let me wish you a nice time with AIJA –mine surely is!
All the best,
AIJA Association Manager
The highlights of the President
29 April 2015
Kitzbühel, London, Brussels, Helsinki, Vienna, Panama, Venice, Basel, Hong Kong, Barcelona, Shanghai, Tokyo, Brighton, Madrid, Washington DC. These are the cities I had the pleasure to visit only in 2015 thanks to my Presidential mandate.
What a gift for me to see motivated AIJA Organising Committees. What a pleasure to be part of the élite of the International Legal world. That’s very demanding and tiring but so rewarding. Representing AIJA in the world is an honour for me and I am glad to confirm how reputable our organisation is internationally.
One of the highlights of my Presidency was the invitation to Buckingham Palace on the occasion of the Magna Carta Anniversary in London. Queen Elizabeth II received a very important delegation at her Palace and I was invited together with Orsolya Gorgenyi, AIJA First Vice-President. It does not happen every day to meet such a charismatic and important world leader.
The Bureau, with the kind support of Michel Bonne (Belgium) and Emiliano Ganzarolli (Italy), is currently working on the new Strategic Plan which will set our Association’s objectives for the next three years. Believe me, it is not an easy task to decide what the priorities for the organisation have to be, which direction we have to take. A draft plan will be presented at the next Executive Committee which is taking place in Antwerp during our May Half Year Conference. The final plan will be presented at the next General Assembly, taking place in London during our Annual Congress on Saturday 5th September.
Talking about the Annual Congress, this is as you know the highlight of the AIJA year. We are fine-tuning the final programme: new ideas for the working sessions, a lot of speakers who are not coming from the “AIJA family”, exclusive venues confirmed for the social programme (oh yes, it will be a memorable congress!). Registration opens in mid-May. We expect to break all the records of attendance, so make sure you are there to live this important moment of the AIJA history.
I wish you a nice spring and look forward to seeing you soon at an AIJA event!
President of AIJA
AIJA Association Manager shortlisted for prestigious award
22 April 2015
The Jury of the International and European Association Awards has disclosed today the names of the shortlisted association executives who are running to win this year’s prestigious awards.
The Association Awards ceremony will take place during the International & European Associations Congress on 6th May 2015 in Lausanne, Switzerland.
Giuseppe Marletta, who manages AIJA since 2012, has shown in the last ten years outstanding leadership skills, assisting European and international associations to grow and increase their reputation internationally.
Giuseppe said “I am delighted to be in the running for the award as Young Leader of the Year. I’m so glad the Jury understood the value of my hard work until now. I love the challenges of the association world and am very excited about this fantastic opportunity”.
More information is expected to be released following the ceremony on 6th May.