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member articles
Doing Business in Canada: A Practical Guide to Cross-Border Trade and Investment
Robinson Sheppard Shapiro, Montreal, Canada
www.rsslex.com
by Sharon G. Druker
WHAT YOU NEED TO KNOW ABOUT THE CANADIAN LEGAL REGIME
BILINGUAL AND BI-JURIDICAL
Canada is bilingual, bi-juridical and multi-cultural. It is bilingual in that both English and French are federally mandated official languages. It is bi-juridical as all provinces and territories (other than the Province of Québec) draw from the Common Law system, derived from England. Québec (like the State of Louisiana) is governed by the Civil Law system, derived from the French Napoleonic Code, as reflected in the Civil Code of Lower Canada adopted in 1866 (one year prior to Confederation) and replaced as of January 1st, 1994 by the Civil Code of Québec (the “CCQ”).
LEVELS OF GOVERNMENT AND JURISDICTION
Canada has several levels of government: federal, provincial and municipal. The allocation of jurisdiction between the federal and provincial governments was established under the British North-America Act of 1867 at the time of Confederation.
Generally speaking, most matters regarding private property, commerce and business fall under provincial jurisdiction, with the exception of federally regulated industries such as telecommunications and the railways.
The federal government also deals with matters of bankruptcy, competition, foreign investment, criminal and family law. However, unlike the United States, securities law is a matter of provincial jurisdiction and each province or territory therefore has its own regulator (e.g., the Québec Autorité des marchés financiers and the Ontario Securities Commission), but there is no federal regulator akin to the U.S. Securities and Exchange Commission.
[FULL STORY]
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New Civil Procedure Code came into force in Estonia in January 2006
Tark & Co, Tallinn, Estonia
www.tarkco.com
by Toomas Taube
As from January 1, 2006, new Civil Procedure Code (“Code”) came into force in Estonia, replacing the former code of 1998.
The new Code makes the procedure regulations more detailed, compared to the former code. The new Code also introduces a number of new possibilities in the civil procedure.
The new Code enables the court and parties to use more written and simplified procedures. No court hearings are required during the preliminary procedures, and the written procedure is allowed even for the whole process (the parties’ consent is required if the claim amount is over 3,200 EUR).
[FULL STORY]
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A matter of standards: how much due diligence disclosure is necessary to prevent a warranty claim under English Law?
Memery Crystal, London
www.memerycrystal.com
by Nicholas Scott
All English corporate lawyers and, many of their clients, will be intimately familiar with the process of negotiating warranties and disclosures as part of commercial deals. The functions of those warranties and any disclosures are well known: to elicit information about the target and to qualify any warranties given. What is less well understood, but of crucial significance to both parties, is the extent of disclosure that must be made by a vendor to forestall any warranty claims and whether, in the context of such a claim, a purchaser will be prevented from suing for breach of warranty because his agents were aware of it before entering the agreement. A recent decision of the English Court of Appeal makes clear that the English courts will look to the terms of the agreement to determine both of these points. Accordingly, anybody concluding a contract subject to English law should take particular care to negotiate and correctly document the position in relation to these areas.
[FULL STORY]
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Managing Risk in Cross Border Investment
Gadens Lawyers, Sydney, Australia
www.gadens.com
by Damian Sturzaker and Kim Middleton
Investing in foreign countries can be complicated, especially when governments lock horns with investor companies. Recent developments show how important investment treaties can be in protecting contractual rights (especially with foreign states), in the event of a dispute.
This article will focus on the recent dispute between the government of Mauritania and the Woodside joint venture and also the potential claims arising out of Bolivia’s nationalisation of its oil fields. Both are good examples of the important role that investment treaty arbitration may play in both managing contractual risk and ensuring continued protection of investments in foreign countries.
[FULL STORY]
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"Establishing an European Company (SE): a new Eldorado for European group companies and for practitioners ? A French perspective "
Lefevre Pelletier & associes, Avocats, Paris
www.lpalaw.com
by Roland Montfort and Véronique Deau
The European Company Statute, adopted by EU Member States on 8 October 2001 and effective, at least in theory, since 8 October 2004, has created a legal framework for a new kind of corporate entity, the European Company or “Societas Europaea” (“SE”). This Statute consists of a Regulation setting out the core company law framework and an accompanying Directive concerning employee involvement in the SE (i.e., information sharing and consultation process). However, the Regulation does not cover other areas of law such as taxation, competition, intellectual property or insolvency .
[FULL STORY]
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French Foreign Investment Regulations
Lefevre Pelletier & associes, Avocats, Paris
by Roland Montfort
The French foreign investment regulations (“Regulation”) has been recently modified by Decree n° 2005-1739 of 30 December 2005. At the time this article goes to press, implementing measures are still to be enacted.
The most significant changes are: firstly, the codification of various pieces of legislation into the Monetary and Financial Code thereby enhancing its readability; secondly, the reform of the prior authorization regime as detailed below.
[FULL STORY]
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Litigation Funding in Australia
Gadens Lawyers, Sydney, Australia
by Simon Theodore and Jamie Richardson
Litigation funding is the contribution to the costs of litigation by non parties. Through litigation funding, legal costs and disbursements for the litigant are paid by the funder and any adverse costs orders are also met by the funder in return for a percentage of any settlement monies (usually 25-45%). Funding is generally available to parties in litigation who have a prospect of recovery. The benefit of funding is that the funder will contribute to the costly process of litigation and seek to reduce litigation risks by:
1. conducting due diligence
2. obtaining budgets from the lawyers as to costs and caps on fees
3. monitoring the proceedings as they progress
4. providing assistance to the lawyers as requested
Should the plaintiff be unsuccessful, the funder receives nothing and must bear both the plaintiff’s costs as well as any costs orders made against the plaintiff.
[FULL STORY]
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Industrial Relations Reform Sweeps Across Australia
Gadens Lawyers, Sydney, Australia
by Kathryn Dent and Nicole Linton
Sweeping new industrial relations laws commenced in Australia on 27 March 2006 which will have the effect of bringing between 70-85% of employees under one unified industrial relations system. Previously, the industrial relations laws of the various states and territories of Australia governed the employment relationship. The Australian Government has introduced these changes on the premise that they will increase productivity of Australian businesses and thus positively contribute to a strong economy.
[FULL STORY]
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