Search results for

The US district court judge lost his battle against the SEC’s settlement policy, but he may have won the war. Here, a former SEC commissioner explains why

John Breslin Karole Cuddihy The Irish High Court decision in Ulster Bank Ireland Limited v Dermody (2014) has raised an evidential issue for financial institutions contemplating debt enforcement and possession proceedings. The issue is whether, in proceedings brought by a bank, evidence grounding the proceedings can be given by an officer or employee of a legal entity other than the bank. In a number of cases, the intended deponent will in fact be an employee of a related company (or in some cases an employee of an external service provider), even if they have carried out the day-to-day dealings with the customer. In Dermody, the person who swore the affidavits grounding the application for summary judgment was not an employee of Ulster Bank Ireland Limited (UBIL), but rather of Ulster Bank Limited (UBL), a related company which dealt with the debt collection process of UBIL on its behalf. UBIL was a wholly owned subsidiary of UBL.

Tomasz Konopka Borys D Sawicki Ms X, an accountant at company A, domiciled in country B, receives a phone call. Someone on the other side of the line explains that he is calling her in connection with a new project run by company A in which her assistance will be required. Shortly after, Ms X receives an e-mail from a top level manager of company A (whom she has never met personally), Mr Z, referring to that call and repeating the message. Mr Z explains the relevance of the project to company A and stresses the importance of Ms X's involvement for its success. He also requests Ms X to keep the matter secret and to work on the assignment solely with him. Ms X feels honoured. Not long after the call, Ms X receives her first task in the project: she has to wire €450,000 ($613,000) from company A's bank account to an account of a company (unknown to her) in Country C. The following days bring several similar requests; Ms X wires the monies and Mr Z praises her assistance and encourages her to continue, as the project is about to be successfully completed. But before the successful completion arrives, Ms X's direct superior finally notices the transfers from the bank account of company A and demands explanations. A few hours later, it is clear that Mr Z (the real one) has never contacted Ms X nor instructed her to make any money transfer. At which time, however, the monies are already in a bank account in country C. The story is neither unrealistic nor exceptional – frauds similar to the one depicted above are occurring more and more often. There are several reasons for this, the shift towards electronic means of communication in lieu of direct (face to face) contacts being one of them. Loosened relations between staff and managers and properly employed social engineering generate opportunities for those willing to take advantage of the dangerous mix created by modern technology and people's gullibility. While there is no way (and no need) to stop technological progress, companies assisted by experts, including lawyers experienced in similar matters, may undertake various precautionary steps to mitigate the threat.

A new act on private flat renting (Act) came into force on May 1 2014. It is intended to improve the position of landlords and motivate investors to build private rental flats, and is a special piece of legislation compared to Civil Code. It means that rights and obligations of the landlord and tenant related to private flat renting will be governed by provisions of the Act. The Civil Code will be used only in cases not covered by the Act. The Act does not apply automatically; it is subject to the tenant's acknowledgement that the rental agreement is entered into in accordance with the Act. Hence, parties may still decide to use the legal regime under the Civil Code.

On May 23 2014, the Kenyan Parliament ratified the Double Taxation Avoidance Agreement (DTAA) signed with Mauritius in 2012 so as to make it effective as of January 1 2015. Mauritius will bring the DTAA into effect on publication of a Gazette notice – this is expected to take place before January 1 2015.

Banji Adenusi In May 2014, the Nigerian Securities and Exchange Commission issued new rules to address the influx of offshore mutual funds and collective investment schemes (CISs) soliciting investment from investors in Nigeria. The Rules on Approval of Foreign Collective Investment Schemes 2014 aims to bring foreign CISs (registered and regulated under the relevant foreign jurisdiction) which are seeking investments from Nigeria under the jurisdiction of the SEC. As part of requirements for eligibility to solicit investments, foreign CISs that have no intention of listing on the Nigerian exchanges are required to invest no less than 20% of the fund's total assets in Nigeria (Rule 2g). Obviously, the key consideration is the retention of a minimum level of investment within the Nigerian market, and by extension the reduction of capital flight. Equally, the foreign operator is required to appoint a representative in Nigeria for the life of the fund approved in Nigeria. This appointed representative can either be a duly registered fund manager with whom the foreign operator may enter into a representative agreement, or a freshly incorporated representative entity registered with SEC (Rule 3b). Solicitation of investments in the fund is then carried on through the representative (Rule 4). Where the foreign operator elects to incorporate a vehicle for the purposes of registration with the SEC, such local incorporation throws up a host of regulatory compliance requirements, including licensing with the Nigerian Investment Promotion Council and compliance with the various applicable tax regimes.

Soonghee Lee The Korean public's attention has recently turned to some scandalous events involving various Korean conglomerates (more generally known as chaebols). W Group and S Group filed for bankruptcy, followed by D Group. Although W Group successfully restored its ordinary management and operation early on, D Group is still at the centre of complicated social and economic criticisms due to its financial institution affiliations and issues of financial consumer protection. All of these groups are large corporate groups ranked among the top 20 in terms of capital. Korea had already experienced a series of bankruptcy filings by chaebols during the Asian financial crisis from the late 1990s until the early 2000s, when H Group, J Group and K Group went bankrupt one after the other. In some other chaebols, all decision-making was suspended due to the criminal prosecution of chief executive officers. At the moment, all of the chief executive officers of T Group, S Group, H Group and C Group have been criminally prosecuted or are involved in a criminal trial. H Group was investigated by the National Tax Service and the Prosecutor's Office.

Krung Thai Bank’s Tier 2 offering has become the first internationally-sold Basel III-compliant offering from Thailand. Here's how

The first sukuk issued by a non-Muslim country bolsters London’s plan Islamic finance hub plans

A disjointed regulatory framework has hampered efforts to oversee private investment funds. Here are the lessons that must inform the next round of rulemaking