Search results for

John Breslin Karole Cuddihy Banks and other financial institutions operate in a highly regulated environment. Issues frequently arise where an institution has breached a regulatory requirement but seeks to enforce its contractual rights; for instance, where there is a regulatory breach in the formation of a loan contract and the institution seeks to recover the loan or enforce security for the loan. The legal issues which arise are complicated. In a recent decision (Quinn v IBRC [2015] IESC 29), the Irish Supreme Court indicated the general approach the courts should take. The plaintiffs had provided security for loans which were said to have been illegal under financial assistance prohibitions and market abuse rules. In brief, they alleged that the defendant bank had lent money to a number of corporate investors (effectively controlled by their father/husband) to enable those investors to fund contracts for difference (CFD) positions in the bank's shares (which were at the time listed on the Irish Stock Exchange). The plaintiffs claimed that this illegality rendered their obligations under the security contracts unenforceable. The High Court held, in determining this preliminary issue, that the plaintiffs were entitled to advance and rely on an argument that the security contracts and contracts of guarantee were unenforceable for reasons of public policy (on the basis that a court will not assist in the enforcement of an illegal contract). The bank appealed to the Supreme Court.

Nicky Lester FRESHFIELDS BRUCKHAUS DERINGER has made inroads in Hong Kong recently, and at Linklaters' expense. The magic circle firm brought in energy partner Thomas Ng from its rival's office in Beijing and also hired partner David Ludwick to its capital markets practice. It's been busy on the private equity front as WHITE & CASE took a further step towards its strategic aim of building a pan-Asian private equity practice by hiring Korean expert Kyungseok Kim. WEIL GOTSHAL & MANGES raided Latham & Watkins for private equity partner Tim Gardner and JONES DAY snatched Scott Peterman from Sidley Austin. Sino-Australian firm KING & WOOD MALLESONS (KWM) made moves to prop up its China practice and integrate it into the global KWM firm. In Hong Kong it brought in the 15-year experience of Herbert Smith Freehills (HSF) corporate partner Gary Lock and also hired Shao Zili – JP Morgan's Asia-Pacific vice chairman – as co-chair of its China management committee.

The new Minister of Finance, Vishnu Lutchmeenaraidoo, presented his first budget on March 23 2015. He qualified the budget as a no-tax budget, although it is perhaps more accurate to describe it as a no-new-tax budget. It is clear that the budget is aimed at boosting growth and investment.

Pedro Cortés Marta Mourão This seems to be the year to focus on the economy of Macau. In light of the latest Policy Address delivered by the Chief Executive on March 23 2015, it is clear that the Macau Government needs to focus on stable and healthy economic adjustment, risk prevention and the promotion of economic restructuring. The goals in this sector include: maintaining the stability and health of the financial and monetary situation and the low unemployment rate; improving the business environment; actively promoting the stabilisation of products

Finance minister Arun Jaitley’s proposals could boost the country’s equity capital markets. Here’s how

Rodrigo de Campos Vieira Due to the historic lack of financing sources for hotel projects in Brazil, the market has sought out creative fundraising mechanisms to meet the substantial deficit of hotel rooms in Brazil. The most successful financing structure known to date, referred to as condo-hotels, involves the sale of autonomous units from real-estate development projects or as an ideal fraction of real estate. The former integrates a pool of hotels managed by a professional operator, to individuals or corporations. The proceeds of the real-estate development project are distributed to the owners of the condo-hotel units by the operator of the pool of hotels.

The city-state’s new antitrust regulator released its revised draft guidelines at the end of March and is expected to begin operating later this year

Masaki Mizukoshi The amended Companies Act went into effect on May 1 2015. One of the major changes in the amendment was the introduction of a new corporate structure – a company with an audit committee. This was introduced to make it easier for Japanese companies to utilise outside directors and so to enhance the monitoring of executive directors of the company. The audit committee must consist of at least three directors, the majority of which must be outside directors, and an executive director or employee of the company or one of its subsidiaries may not be a member of the audit committee. Like a statutory auditor in a company with a board of statutory auditors, which is a very common corporate structure among Japanese listed companies, the audit committee in the new structure has the power to audit the execution of duties by directors (other than members of the audit committee) and prepare an audit report. In addition, the audit committee has the unique power to state its opinion on the nomination and remuneration of directors (other than members of the audit committee) at a shareholders meeting, and through exercising this power properly, the audit committee is expected to achieve more effective monitoring of executive directors.

Adrian Chair The Netting of Financial Agreements Act 2015 (Netting Act) came into force on March 30 2015, and clarifies that the netting provisions in a qualified financial agreement for qualified financial transactions are enforceable in accordance with the terms of the agreement. The Netting Act clarifies the long-standing uncertainty on the enforceability of close-out netting arising from laws construed by the market as non-netting friendly. These are: (i) sections 29A and 41 of the Pengurusan Danaharta Nasional Berhad Act 1998 (Danaharta Act) which provide that appointment of a special administrator should not give rise to a termination or acceleration right, and impose a 12-month moratorium during which set-off is restricted except with Danaharta's consent; and (ii) section 346C of the Capital Markets and Services Act 2007 (CMSA), empowering the Securities Commission to require any person to take measures the Commission considers necessary for managing systemic risk.

Patricia A Solórzano On January 12 2015 Honduras enacted the Agreement with Government of the United States of America to Improve International Tax Compliance and to Implement FATCA (Agreement). On February 6 2015, the Guidelines for the implementation of the Agreement, issued by the National Banking and Insurance Commission (CNBS) became enforceable. Under the Agreement and Guidelines, for 2014, Honduran financial institutions must obtain and exchange from the US Reportable Accounts the following information: (i) name, address, and US taxpayer identification number (TIN) of each specified US person that is an account holder of such account; (ii) account number; (iii) name and identifying number of the reporting Honduran financial institution; and, (iv) average monthly account balance or value during the relevant calendar year.