►CLAYTON UTZ Supports Skilled Group on $71 Million Capital Raising ►FRASER MILNER CASGRAIN Teledyne Technologies Acquires DALSA Corporation for $337 million ► GIDE LOYRETTE NOUEL Advises Hammerson on Acquisition of 50% of SQY Ouest in Saint Quentin-en-Yvelines and Joint Venture Between Hammerson and Codic:

► HOGAN LOVELLS Advises LabCorp on Strategic Acquisition

► KING & WOOD Assists MOFCOM in Landmark WTO Victory ►LUCE FORWARD Obtains a Published Decision Upholding an Insurer's Right to Condition Payment of Extended Dwelling Limits on Repair or Replacement ► NAUTADUTILH Secures Favorable Verdict for Fairmount Marine B.V. ►TOZZINIFREIRE Assists DEG – Deutsche Investitions – Und Entwicklungsgesellschaft mbH in EU20 million Subscription Deal

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P R A C M E M B E R N E W S

►Carey Adds to Antitrust Practice Group ►Clayton Utz Expands Project Finance Team ►Fraser Milner Casgrain - QC Joins Firm ►Gide WTO International Trade Expert Joins Firm ►Hogan Lovells Adds Litigation Partner ►Rodyk Launches 150 Year Celebrations ►Simpson Grierson Welcomes Three Specialists

►AUSTRALIA Government Releases Bill to Outlaw Price Signalling Between Banking Competitors CLAYTON UTZ ►BEGIUM Car Parts Protected by Copyright NAUTADUTILH ►BRAZIL Tax Increase Announced on Foreign Exchange Transactions in Relation to Foreign Loans TOZZINI FREIRE ►CANADA Ontario Court of Appeals Gives Priority to Pension Plan Wind Up Deficits in CCAA Proceedings FRASER MILNER CASGRAIN ►CHILE Supreme Decree Sets Regulations Hazardous Substances Storage CAREY ABOGADOS ►CHINA New Government Policy Spurs on SOE Restructurings and Listings KING & WOOD ►COLOMBIA Latest Amendments to the Foreign Exchange Regime Effective From March 1, 2011 BRIGARD URRUTIA ►HUNGARY 2011 -A More Investor Friendly Environment? GIDE LOYRETTE NOUEL ►INDONESIA New Bi Regulation On Commercial Banks Soundness Rating ABNR ►MEXICO The New Oil Legal Framework SANTAMARINA Y STETA ►NEW ZEALAND Confidentiality of Commerce Commission Interviews The Air New Zealand Court of Appeals Decision SIMPSON GRIERSON ►SINGAPORE Dual Listings—Singapore Perspective RODYK ►TAIWAN 2nd Phase of Early Harvest ECFA Scheme LEE and LI ►UNITED STATES ►Dukes v Wal Mart Stores Inc Supreme Court Oral Argument Summary HOGAN LOVELLS ► USPTO Announces Track One - Prioritized Examination of Patent Applications WILSON SONSINI GOODRICH & ROSATI

P R A C T O O L S T O U S E

• PRAC Contact Matrix PRAC Member Directory Conferences & Events

Visit us online at www.prac.org

C O N F E R E N C E S & E V E N T S

April 2011 e-Bulletin

MEMBER NEWS

• PRAC Members Gathering @ INTA San Francisco - May 14, 2011 Details at www.prac.org/events.php

● 49th International PRAC Conference - Amsterdam - May 21-24, 2011 Registration Open www.prac.org/events.php

● 50th International PRAC Conference - Singapore October 15-18, 2011 Details at www.prac.org/events.php

● PRAC Members Gathering @ IBA Dubai—October, 2011 details tba

PRAC Conferences and Events are open to PRAC Member Firms only

M E M B E R D E A L S M A K I N G N E W S

COUNTRY ALERTS

Carey y y Cia is pleased to welcome Maria Elina Cruz as of counsel, lawyer and economist to our Antitrust Practice Group.

Mrs. Cruz focuses on antitrust, commercial and economic law. She is a graduate of the Universidad Catolica de Chile and a

Ph.D. in Economics candidate of the University of Bristol, United Kingdom. She also has a graduate degree in Economics

from the same university.

Currently, Mrs. Cruz works as a professor of Commercial and Economic Law at the Universidad Catolica de Chile Law School

and where she also acts as Research Coordinator at the Free Competition Center. In 2010 she was selected as one of the

up and coming teachers in Antitrust with more perspectives in the world, by the most visited blog specialized in Antitrust

matters.

For additional information visit www.carey.cl

C A R E Y A D D S T O A N T I T R U S T P R A C T I C E

Page 2 P R A C M E M B E R N E W S

Are you planning to attend the INTA Annual Meeting in San Francisco? Join us for a casual visit with fellow PRAC members

PRAC members will be gathering

Saturday, May 14, 2011 3:30 pm – 5:30 pm

@ St. Regis Bar

(located within St. Regis San Francisco Hotel within immediate vicinity of Moscone Center) 125 3rd Street – San Francisco, California

St. Regis San Francisco

RSVP reply email by May 4 to: events@prac.org

Invitation is open to all PRAC Member Firms

.

Page 3 P R A C M E M B E R N E W S

Pieter Jan Kuijper joins the International Trade/WTO team at Gide Loyrette Nouel as Of Counsel

Pieter Jan Kuijper, former Director of the Legal Affairs Division of the World Trade Organization (WTO) and former Director of the External Relations and International Trade team of the Legal Service of the European Commission, joins Gide Loyrette Nouel as Of Counsel and member of the team in charge of international trade and unfair competition issues.

As a much-respected specialist in international trade, Pieter Jan Kuijper's experience is twofold:

· as an international civil servant, having spent some 25 years in the Legal Affairs Divisions of the WTO (1999-2002) and the European Commission (1979-1984, 1987-1999 and 2002-2007);

· and in academia, as Professor of International Law (1984 - 1989) and lately as Professor of the Law of International (Economic) Organizations at the Faculty of Law of the University of Amsterdam (as from 2007); he also lectures regularly at European universities and has published a number of authoritative books and articles.

He is a graduate of Leiden University (Netherlands), John Hopkins School of Advanced International Studies (Washington DC), and Amsterdam University (Netherlands).

Through his experience working for the WTO Secretariat and the Legal Service of the European Commission, Pieter Jan Kuijper has gained unique expertise in the enforcement of WTO law. He notably represented the European Commission before the WTO Panels and Appellate Body with regard to issues concerning GATT procedures, procurement, GATS, trade and the environment, technical barriers to trade, TRIPS and subsidies.

Olivier Prost, partner in charge of the International Trade/WTO team at Gide Loyrette Nouel, states, "Pieter Jan Kuijper will bring to our team unique practical experience in WTO law and consolidate our position as one of the benchmark European law firms in this field."

Consistently ranked among the leading specialists in international trade law, Gide Loyrette Nouel has built up almost 20 years' solid expertise in European and international regulations, particularly with regard to the enforcement of trade defence instruments. The Firm regularly represents institutions and governments in trade disputes brought before the WTO. The Firm also advises on the latest international aspects of unfair competition such as subsidy control, unfair and discriminatory trading practices (e.g. in terms of standards and procurement), investment protection and export controls.

For additional information visit www.gide.com

F R A S E R M I L N E R C A S G R A I N A D D S Q . C . T O R O S T E R

G I D E L O Y R E T T E N O U E L W T O I N T E R N A T I O N A L T R A D E E X P E R T J O I N S F I R M

The Honourable Allan H. Wachowich Q.C., LL.D Joins FMC Edmonton

April 7 2011

Fraser Milner Casgrain LLP (FMC), one of Canada’s leading business and litigation law firms, is pleased to welcome the Honourable Allan H. Wachowich, Q.C., LL.D., as counsel in the firm’s Edmonton office.

As one of the top five legal professionals from Opal, Alberta, Mr. Wachowich brings more than 30 years of experience presiding in the Court of Queen’s Bench and its predecessor, and has admitted more than 600 lawyers to the Alberta Bar. After his many years of adjudicating matters from the bench, Mr. Wachowich, in his role as counsel, now provides advice and assistance to our lawyers and clients.

“Allan has made a tremendous contribution to public life in Canada, and I am delighted to welcome a legal professional of this calibre to our team of talented and hard-working lawyers in Edmonton,” says Dennis Picco, Managing Partner, FMC Edmonton. “As a tireless volunteer for many causes, we are very proud to have Allan on board, as he exemplifies the community spirit of all Albertans.”

Mr. Wachowich recently retired as Chief Justice of the Court of Queen’s Bench of Alberta, prior to which he served as a judge of the Court of Queen’s Bench of Alberta and the District Court of Alberta for nearly 36 years. Prior to his appointment to the District Court of Alberta in 1974, he was a partner at Kosowan & Wachowich. In January 2011, in recognition of his merit and exceptional contribution to the Canadian legal profession, Mr. Wachowich was appointed as Queen’s Counsel (Q.C.), one of the highest honours bestowed upon the most distinguished lawyers practising in Canada.

In addition to Mr. Wachowich’s extensive legal experience, his commitment to the community directly aligns with FMC’s deep tradition of giving back. His track record of successfully leading community involvement projects includes serving as arbitrator for the Canadian Football League, member of Edmonton Old-Timers Baseball Association and editor of the Association’s annual newsletter, chair of the Henry Singer Memorial Scholarship Fund, honorary chair of the Canadian Glaucoma Society and the director of the Task Force on Community Safety.

Mr. Wachowich holds both Bachelor of Arts and Bachelor of Laws degrees from the University of Alberta, and in June 2010, was awarded an Honorary Doctor of Laws.

For additional information visit www.fmc-law.com

Hogan Lovells Adds Litigation Partner in Baltimore

BALTIMORE, 11 April 2011 – Hogan Lovells US LLP announced today that Jeffrey E. Gordon has joined the Baltimore office

as a partner in the Litigation, Arbitration, and Employment practice. Gordon was previously a partner at Jones Day in the

White Collar and Healthcare practices in the Washington, D.C. office.

Gordon focuses his practice on business litigation, including class actions; internal investigations and compliance advice for

corporate clients; and white collar defense. He has handled disputes concerning a wide range of issues, including accounting

fraud, healthcare fraud, shareholder derivative suits, board of director liability litigation, False Claims Act (including qui tam

lawsuits), litigation, Foreign Corrupt Practices Act investigations, and patent and trademark infringement.

Gordon’s litigation, investigations, and white collar practices include the representation of corporations and individuals in all

stages of federal and state civil and criminal proceedings. He has tried cases in federal and state courts in a number of ju-

risdictions and has experience resolving matters through mediation and arbitration. He has extensive experience defending

healthcare companies and served as lead counsel for an international medical device manufacturer in a number of internal

investigations.

Besides his defense of healthcare companies and others in white collar criminal investigations and prosecutions, Gordon’s

litigation practice has encompassed a broad range of disputes, including telecommunications, insurance coverage, patents,

trademarks, and contracts.

"We are delighted to welcome Jeff to our litigation practice,” said Stephen Immelt, Co-Chair of the Litigation, Arbitration,

and Employment practice. “Jeff’s deep experience handling healthcare related investigations and fraud issues will be instru-

mental to current and prospective clients that increasingly demand the kind of focused experience and talent that he can

provide.”

Glenn Campbell, Managing Partner of Hogan Lovells' Baltimore office, added: "As clients increasingly turn to us for

expanded litigation services in the Baltimore market and in the industries we serve, we continue to add high-caliber lawyers

to our practice. Jeff is a terrific trial lawyer with a strong track record handling complex matters, which is critical to our cli-

ents in Baltimore and throughout the world.”

Hogan Lovells' Litigation, Arbitration, and Employment practice has a long history of achievement in complex, high-stakes,

international disputes fueled by the team’s in-depth knowledge of the distinct customs, rules, and procedures of tribunals

such as the International Chamber of Commerce, the International Centre for the Settlement of Investment Disputes, the

United Nations Compensation Commission, and the World Trade Organization. The Litigation, Arbitration, and Employment

group regularly functions at the intersection of business and regulation, combining industry knowledge and a proven ability

to litigate and win commercial disputes across all industries and geographies.

Gordon is a member of a number of civic organizations, including The First Tee of Baltimore. He holds a J.D. from the

University of Maryland and a B.A. from the University of Pennsylvania.

For additional information visit www.hoganlovells.com

H O G A N L O V E L L S A D D S L I T I G A T I O N P A R T N E R

Page 4 P R A C M E M B E R N E W S

Page 5 P R A C M E M B E R N E W S

C L A Y T O N U T Z E X P A N D S P R O J E C T F I N A N C E T E A M

R O D Y K L A U N C H E S 1 5 0 Y E A R S C E L E B R A T I O N

Sydney, 28 March 2011: Clayton Utz has significantly bolstered its national Project Finance service offering to clients with the appointment of Angus Foley as a Director, Project Finance, in Sydney.

Angus will join the firm from Credit Agricole CIB Australia, where he has spent the past three years as Director, Natural Resources, Infrastructure and Power.

Angus brings significant legal and industry experience to Clayton Utz's national Banking team. He holds a Master of Laws and spent eight years practising as a lawyer before beginning a career in investment banking, at Credit Suisse First Boston. In 2002 he joined CBA, where he held various roles including Head of Social & Corporate Infrastructure and Head of Infrastructure Clients.

At Credit Agricole, Angus led deal teams on the arranging or refinancing of facilities for a number of significant projects including the Port of Brisbane privatisation, the M2 upgrade project, the South West Queensland Pipeline expansion (for Epic Energy), and the Waterloo Wind Farm project.

The national head of Clayton Utz's Banking & Finance practice, Steve O'Reilly, said Angus' appointment – which follows that of international project finance lawyer Bruce Cooper from Asia last year – would add significant strength to Clayton Utz's project finance capability.

"Angus has a strong commercial background and broad experience in structuring deals in the Australian market. Bringing Angus on board further cements our commitment to being a first-class national Banking practice and means our clients will now have access to two market-leading project finance specialists in Angus and Bruce, who bring together local knowledge and industry experience with international project finance experience," he said. For additional information visit www.claytonutz.com

Managing partner Philip Jeyaretnam, SC presented Chief Justice with a presentation copy of Rodyk 150 Years

Message from the Chief Justice of Singapore

Singapore needs more and larger law firms with the talent,

ability and desire to compete both in Singapore and in Asia.

In this quest, some of our other heritage law firms can take

a leaf out of Rodyk’s experience. Embrace change; discard

the culture of seniority ranking of partners; seek fresh

talent wherever they may come from and share profits

equitably. Rodyk is now doing all of these things: it has

found the elixir of professional life and is deservedly

celebrating the 150th anniversary of its founding. Rodyk

has my congratulations and best wishes.

Excerpt from the message of The Honourable the Chief

Justice Chan Sek Keong published in Rodyk 150 Years

PRAC Member Firms will celebrate with Rodyk when it hosts

PRAC’s 50th Anniversary October 15-18 in Singapore.

For additional information visit www.rodyk.com

This article is for general information purposes only. Its

contents are not intended to be legal or professional advice and are not a substitute

Page 6 P R A C M E M B E R N E W S

Simpson Grierson is delighted to welcome senior associate

Raphael Winick to their Auckland commercial department.

Raphael is admitted to the bar in New York, has worked as

senior in-house counsel for US- based multinationals,

including ESPN and The Walt Disney Company, and at

leading US law firms. His focus at Simpson Grierson is

intellectual property, ICT, media, and legal issues related to

technology. He has extensive experience with developing,

licensing, and commercialising innovative products and new

technologies.

Rebecca Faull joins the firm's Auckland banking and

insolvency litigation group as an associate. Rebecca has

recently returned to New Zealand after working as a solicitor

at leading law firms in the UK and Asia, most recently, at

Allen & Overy in Hong Kong. She will specialise in banking,

finance and insolvency litigation and has practical experience

in receiverships, liquidations and distressed work-outs.

Rob O'Connor returns to the Auckland local government and

environment group as an associate after his travel overseas.

While in the UK, he worked on a wide-range of planning law

matters both in the private sector in London and in the public

sector at a large borough council in Surrey. Rob's focus at

Simpson Grierson is resource management, local

government and environment matters.

For additional information visit www.simpsongrierson.com

N A U T A D U T I L H S E T T O H O S T P R A C A M S T E R D A M 2 0 1 1

S I M P S O N G R I E R S O N W E L C O M E S T H R E E S P E C I A L I S T S

PRAC 49th International Conference

May 21—24, 2011

Hosted by

NautaDutilh

Business Sessions include:

One on One Meetings

- series of prescheduled half-hour meetings between firms

Banking & Workouts - “Future Role and Form of Disclosure Documents”

Corporate Commercial & International Trade -

"Negotiation Dynamics"

featuring guest facilitator Ingemar Dierickx

PRACtice Management -

"Exploring BRIC Opportunities"

Litigation & Dispute Resolution -

"Resolving Issues in the International Marketplace"

Registration and full Conference Package available online

www.prac.org/events.php

Invitation is open to all PRAC Member Firms

Page 7 P R A C M E M B E R N E W S

F R A S E R M I L N E R C A S G R A I N T E L E D Y N E T E C H N O L O G I E S A C Q U I R E S D A L S A C O R P O R A T I O N F O R $ 3 3 7 M I L L I O N

On February 12, 2011, Teledyne Technologies Incorporated (NYSE: TDY) (“Teledyne”) and DALSA Corporation (TSX: DSA) (“DALSA”) successfully completed the acquisition by plan of arrangement. The Arrangement was completed following the approval of the Ontario Superior Court of Justice (Commercial List) and satisfaction of the various conditions precedent to the Arrangement. Pursuant to the Arrangement, Teledyne acquired all of the issued and outstanding DALSA shares for CAD $18.25 in cash for each DALSA share. The aggregate value for the transaction is approximately CAD $337 million, taking into account DALSA’s stock options and net cash as of December 31, 2010.

Teledyne Technologies is a leading provider of sophisticated instrumentation, digital imaging products and software, aerospace and defense electronics, and engineered systems. Teledyne Technologies’ operations are primarily located in the United States, Canada the United Kingdom and Mexico.

DALSA, now Teledyne DALSA, Inc., is an international leader in high performance digital imaging and semiconductors with approximately 1000 employees worldwide, based in Waterloo, Ontario, Canada. The company designs, develops, manufactures and markets digital imaging products and solutions, in addition to providing specialized semiconductor foundry services, with core competencies in advanced integrated circuit and electronics technology, software, and highly engineered semiconductor wafer processing.

Teledyne was represented by its in-house legal department with a team that included John Kuelbs, Melanie Cibik, Paul Sassalos, George Bobb, Robert Schaefer and David Zoeteway; and externally, in Canada, by a team from Fraser Milner Casgrain LLP that included John Sabine, Abbas Ali Khan, Peter Danner and Jessica Palter (Securities), Mike Beairsto and Lee-Ann Gibbs (Corporate/Technology), Matthew Peters (Tax), Sandy Walker and Clayton Caverly (Competition), Adrian Miedema, Christina Hall, Marie-Noel Massicotte and Sandrine Thomas (Employment), Mary Picard and Mark Dunsmuir (Pension & Benefits), Chris Cochlin and Jaime Seidner (Customs and Export), Sonja Homenuck, Jenette Boycott and Marc-André Godin (Real Estate), Paul Shantz and Jan-Martin LeBlanc (Environmental), Young Park and Chloe Snider (Litigation). For additional information visit www.fmc-law.com

C L A Y T O N U T Z S U P P O R T S S K I L L E D G R O U P O N $ 7 1 M I L L I O N C A P I T A L R A I S I N G

Melbourne, 8 March 2011: In another significant

transaction for Clayton Utz's Corporate team, Clayton Utz

has advised leading Australian and New Zealand provider of

labour hire and workforce services, Skilled Group Limited, on

its capital raising by way of any accelerated entitlement offer

and placement, announced to the market on Wednesday 23

February.

The raising comprised a $53 million entitlement offer, with

an additional $18 million raised through a placement in

conjunction with the institutional component of the

entitlement offer. The placement was added to the capital

raising due to strong investor demand received in the

institutional offer.

Melbourne Corporate partner Brendan Groves led the Clayton

Utz team, which included lawyers Sachi Haga, Warrick Louey

and Sarah Pfeiler. Senior Corporate partner Rod Halstead

also advised on the transaction.

The offer is fully underwritten by Goldman Sachs. The funds

raised will be used to reduce debt and debt servicing costs,

and help position Skilled Group for further growth.

Mr. Groves said Clayton Utz was pleased to have worked

alongside Skilled Group on this strategically significant

transaction that will support its long-term growth objectives.

For additional information visit www.claytonutz.com

Page 8 P R A C M E M B E R N E W S

February 2011 - Gide Loyrette Nouel advises Hammerson on the acquisition of 50% of SQY Ouest in Saint Quentin-en-

Yvelines and on setting up a joint venture between Hammerson and Codic.

Gide Loyrette Nouel has advised British real estate company Hammerson on its acquisition of 50% of SQY Ouest, a 31,000-

m² shopping centre in Saint Quentin-en-Yvelines, in a joint venture with Codic France.

The transaction is valued at EUR 38 million. Hammerson was advised by Gide Loyrette Nouel with a team comprising

partners Bertrand Oldra, Christopher Szostak, Olivier Puech and associates David Sabatier, Nathalie Zanardo and Charles

Denis and by Arsène Taxand (François Lugand, Stéphanie Hamis, Michael Taïeb).

For further information, please visit our website: www.gide.com.

Washington, D.C., 6 April 2011 – Hogan Lovells announced today that it is representing its long-standing client Laboratory

Corporation of America Holdings (NYSE: LH) in its acquisition of Orchid Cellmark Inc. (NASDAQ: ORCH). Under the

acquisition agreement, LabCorp will acquire all of the outstanding shares of Orchid Cellmark in a cash tender offer for $2.80

per share.

Laboratory Corporation of America Holdings, an S&P 500 company, is a pioneer in commercializing new diagnostic

technologies and the first in its industry to embrace genomic testing.

Orchid Cellmark is a leading international provider of DNA testing services primarily for forensic and family relationship

applications.

Hogan Lovells offers international transactions capability that includes significant regulatory and business practices in

Europe and the United States. Our global presence allows us to structure, negotiate, and implement highly complex cross-

border transactions on behalf of our clients. The Hogan Lovells team advising LabCorp is being led by corporate partners

Michael Silver, John Booher, and Richard Lewis and associates Allen Hicks, Julian Seiguer, Carin Carithers, Rod Lai, Kate

Pumphrey, and Catherine Adamson; advice on regulatory issues is being provided by partners Joseph Krauss, Scott Reisch,

William Neff, and T. Clark Weymouth.

For additional information visit www.hoganlovells.com

G I D E L O Y R E T T E N O U E L A D V I S E S H A M M E R S O N

H O G A N L O V E L L S A D V I S E S L A B C O R P O N S T R A T E G I C A C Q U I S I T I O N

Page 9 P R A C M E M B E R N E W S

On March 11, 2011, In a ruling by the Appellate Body on March 11, the World Trade Organization (WTO) sided with China in

its challenge against the anti-dumping and countervailing duty measures imposed by the United States on imports of

circular welded pipes, light-walled rectangular pipes, off-the-road tires and woven sacks from China. In particular, the

decision conclusively established that the U.S. measures at issue violated WTO rules and unequivocally requested the

United States to bring these measures into compliance with its WTO obligations.

China welcomes the ruling, which is a landmark victory for China in WTO dispute settlement and demonstrates the growing

assertiveness of the country as a key player in the global trading system.

The dispute was brought by MOFCOM on behalf of the Chinese government in September 2008 and lasted for two and a half

years. King & Wood acted as the co-counsel to MOFCOM. The team was led by Mr. XIAO Jin, a partner of King & Wood's

international trade practice group. King & Wood plays a leading role in WTO litigation in disputes involving China. In 2009,

King & Wood assisted MOFCOM in its successful defense of a challenge posed by the United States in the IPR dispute. The

trade practice group also maintains an active practice in areas such as inbound and outbound trade remedy investigations,

customs and import & export matters, etc.

For additional information visit www.kingandwood.com

K I N G & W O O D A S S I S T S M O F C O M I N L A N D M A R K W T O V I C T O R Y

T O Z Z I N I F R E I R E A S S I S T S D E G — D E U T S C H E I N V E S T I T I O N S I N E U 2 0 M I L L I O N S U B S C R I P T I O N D E A L

DEG – Deutsche Investitions – Und Entwicklungsgesellschaft mbH (“DEG”), assisted by TozziniFreire Advogados, and Banco

Pine S.A. (the “Bank”) have entered into a Subscription Agreement pursuant to which DEG will subscribe for new preferred

shares of the Bank in an amount in Reais equivalent in Reais to EUR 20 million.

The proceeds to be obtained by the Bank aims at strengthening its equity base to promote further growth of the Bank

activities, especially in the financing for Brazilian enterprises.

DEG will enter into a Shareholders Agreement with the controlling shareholder of the Bank pursuant to which DEG will have

the right to sell its preferred shares to the controlling shareholder of the Bank upon the occurrence of certain events.

DEG, member of KfW Bankengruppe (KfW banking group), finances investments of private companies in developing and

transition countries. As one of Europe's largest development finance institutions, it promotes private business structures to

contribute to sustainable growth and improved living conditions.

Partners Ana Carolina de Salles Freire (afreire@tozzinifreire.com.br) and Antonio Felix de Araujo Cintra

(afcintra@tozzinifreire.com.br) and associate Paulo Roberto Martins de Toledo Leme (pleme@tozzinifreire.com.br) acted in

the transaction.

For additional information visit www.tozzinifreire.com.br

Page 10 P R A C M E M B E R N E W S

03 | 31 | 2011

Under most homeowners’ insurance policies in California, dwelling benefits above the limits stated on the policy’s

declarations page are available if the stated limits are insufficient to repair or rebuild the dwelling after a loss. But most

policies also require the homeowner to repair, rebuild or replace the home before these extended limits are available. The

plaintiffs’ bar has argued, however, that in cases of underinsurance - i.e., where the total limits will not be adequate to

repair or rebuild the home - the California Insurance Code requires that these extended limits be paid immediately, and

before the homeowner rebuilds. In a recent published decision, the Fourth District Court of Appeal rejected this argument,

and held that an insurer is not required to pay the extended limits until the home is repaired or replaced, if the policy so

provides.

In Minich v Allstate, 2011 Cal. App. LEXIS 270 (March 15, 2011), the insured’s home was destroyed by the 2007 Witch

Creek wildfire. The Allstate policy provided that Allstate would pay the actual cash value of the loss, up to the limit of

liability on the policy’s declarations page, with no requirement that the dwelling be repaired or rebuilt. The policy also

provided that Allstate would pay up to an additional 50% if the insured repaired, rebuilt or replaced the damaged dwelling.

Allstate paid the Minichs the limit of liability shown on the policy’s declarations page almost immediately after the fire, but

refused to pay the additional 50% until the Minichs furnished Allstate with evidence that they were, in fact, rebuilding the

house.

The Minichs sued Allstate for breach of contract and bad faith, arguing that Allstate should have paid them the extended

limits immediately after the fire because it was clear that the total benefits available under the policy (including the

additional 50%) would be inadequate to rebuild the house. The Minichs contended that Insurance Code sections 2051 and

2051.5 require an insurer to pay the total amount of benefits available under the policy (including any extended limits

provided by endorsement) whenever a dwelling is destroyed and the cost to rebuild exceeds the limits. Allstate filed a

motion for summary judgment, the trial court granted Allstate’s motion, and the Minichs appealed.

The Fourth District Court of Appeal affirmed the judgment in Allstate’s favor. The court held that the extended limits

endorsement in the Allstate policy made it clear that Allstate was not required to pay more than the limits on the

declarations page until the insured repaired, rebuilt or replaced the damaged dwelling. The court also rejected the Minichs’

arguments that the Insurance Code mandates payment of the “policy limit” without requiring repair or replacement, and

that the term “policy limit” means all benefits available under the policy, including any extensions. The court observed that

the Insurance Code sections relating to disclosure statements that an insurer is required to provide to its insureds make

clear that the extended limits of the type offered in the Allstate policy refer to amounts over the policy’s stated limits.

Therefore, “policy limits” as used in other sections of the Insurance Code refer to the limits on the declarations page, and

not to all available benefits provided by endorsement. Because Allstate paid the amount listed on the declarations page, it

complied with the Code by paying the “policy limits.”

The Minich decision makes clear that an insurer may condition the payment of a percentage above the limits stated on a

homeowners policy’s declarations page on actual repair or replacement by the insured, and that such a requirement will not

run afoul of the Insurance Code. In order to avoid the risk that an insured will argue that he or she is entitled to all policy

benefits without repair or replacement, the policy language used by the insurer should make clear that nothing above the

limits stated on the policy’s declarations page will be paid until the insured repairs or replaces the dwelling.

For additional information visit www.luce.com

L U C E F O R W A R D O B T A I N S P U B L I S H E D D E C I S I O N U P H O L D I N G I N S U R E R ’ S R I G H T T O C O N D I T I O N P A Y M E N T O F E X T E N D E D D W E L L I N G L I M I T S O N R E P A I R O R R E P L A C E M E N T

Page 11 P R A C M E M B E R N E W S

7 April 2011 - In a verdict delivered on 31 March 2011, the Netherlands Arbitration Institute fully rejected a claim lodged

by Fairstar Heavy Transport N.V, a company listed on the Oslo stock exchange, against our client Fairmount Marine B.V.

Fairstar Heavy Transport had claimed an amount of EUR 53 million.

The claim was related to the conversion of two ships that were intended for heavy maritime transport, such as the

transportation of drilling platforms. The ships were the property of Fairstar Heavy Transport. Fairmount Marine was

responsible for supervising the conversion during part of the construction period. The conversion process has led to

considerable damages incurred by Fairstar Heavy Transport owing to cost overruns and delays. Fairstar Heavy Transport

held Fairmount Marine liable for this. Fairmount Marine rejected all liability. In its opinion, the damages were the result of

shortcomings at the shipyard, Malta Shipyards, and the way in which Fairstar Heavy Transport had interfered in the

conversion process.

The arbiters ruled in favour of Fairmount Marine and also upheld its counterclaims referring to the unlawful termination of a

management agreement between the parties and damages resulting from unlawful seizure.

Fairmount Marine was assisted in this case by a NautaDutilh team consisting of Bart Gerretsen, Rutger Kalsbeek, Nicole van

den Heuvel and Philip Malanczuk.

For additional information visit www.nautadutilh.com

N A U T A D U T I L H S E C U R E S F A V O R A B L E V E R D I C T F O R F A I R M O U N T M A R I N E B . V .

PRAC 49th International Conference

May 21—24, 2011

Hosted by

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Register online at www.prac.org

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PRAC e-Bulletin is published monthly.

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Send to editor@prac.org.

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With over 12,000 lawyers practicing in key business centers around the world, including Latin America, Middle East, Europe, Asia and North America, these prominent member firms provide independent legal representation and local market knowledge.

11 April 2011

Government releases Bill to outlaw price signalling between banking competitors - and who is next? On 24 March 2011 the Federal Government introduced into Parliament its revised Bill to outlaw price signalling between competitors in defined industry sectors.

At this stage the Competition and Consumer Amendment Bill (No. 1) 2011 is intended to apply only to the banking sector but may be extended by regulation. The Australian Competition and Consumer Commission (ACCC) is reportedly already pressing for the Bill to apply generally across the economy, and specifically to include retailers of unleaded petrol. The Bill is subject to further consultation, and is likely to be reviewed by a Parliamentary Committee, but could become law by early 2012.

Why you should be concerned about the Bill

The Government has decided there is a "gap" in Australian law and that new measures are required, citing the fact that "unlawful information exchanges" between competitors are unlawful to various extents under the laws in the UK, USA and Europe.

However, the Bill introduces very broad prohibitions which appear to go considerably further than any law we have seen operating in these other jurisdictions.

If enacted, the Bill will capture many forms of disclosure that are likely to be benign or actually pro-competitive, as well as those cases of disclosures that are actually likely to damage competition or consumer interests.

It is of particular concern to legitimate lenders and ordinary commercial practices in the banking industry, which we look at below.

The Bill is also a cause for concern more broadly, given that it provides that regulations may be made to extend its operation to other industries, but does not include any criteria or guidance as to how those industries will be identified.

It is clear from the lengthy discussion in the Explanatory Memorandum accompanying the Bill that the Government has no real evidence of how widely (or not) "undesirable" price signalling is occurring in Australia. The Bill is therefore a step in the dark to stamp out a practice, the real extent of which seems to be completely unknown.

The costs of compliance however to business will be significant, since almost every public announcement will need careful vetting; staff will need to be trained, and consideration given to when a company may lawfully disclose a past or future price to an entity, which may also be a competitor, and whether an exemption applies.

What is the Bill about?

In brief, the Bill will outlaw, subject to certain exemptions:

private signalling – any disclosure of past, current or future price information to competitors or potential

competitors; and public disclosure of any information about the discloser's past, current or future prices, capacity to supply or strategic intent where the disclosure is made for a purpose of substantially lessening competition in any market.

Most attention will focus on the prohibition of private disclosures to competitors, since this will be a strict liability offence, carrying a maximum civil penalty of $10 million, irrespective of the purpose or the effect of the disclosure on competition.

Exemptions – when pricing disclosures to competitors may occur

The Government has sought to address concerns about the breadth of the proposed prohibitions by including a number of exemptions to allow a competitor to communicate pricing information to another competitor.

Under the Bill, disclosure will be permitted where:

the disclosure is authorised by law - such as under the continuous disclosure obligations under the Corporations Act faced by a corporation listed on the ASX; where prior notification of the intended disclosure is given to the ACCC and no objection is raised by the ACCC within a prescribed period (likely to be 14 days); disclosures are made to a customer or a supplier concerning the prices which they will pay or receive for transactions with the discloser; accidental disclosures occur beyond the discloser's control or where it was not known (and could not reasonably have been known) that the recipient was a competitor. pricing is disclosed in relation to an M&A transaction eg. during due diligence investigations; or the disclosure is to a fellow participant in a joint venture or proposed joint venture.

Do the exemptions go far enough?

In announcing the Bill, the Treasurer said "This Bill is fundamentally about stamping out conspiratorial behaviour by the big banks which is not caught by our competition laws", and he added, "we are not talking about ordinary commercial communications. Every Australian bank will be able to communicate with its customers, shareholders, market analysts, employee and other stakeholders in the ordinary course of business – just like they always have been able to do".

He added, "All banks will be able to fully comply with any continuous disclosure obligations they have, such as discussing their funding costs".

Yet concerns have been expressed that the exceptions in the Bill might not extend to commonplace banking transactions such as syndicated loans or subordinated debt arrangements.

For example, one of the exemptions allowing a competitor to communicate pricing information to another competitor is where the disclosure is to a fellow participant in a "joint venture" or proposed "joint venture".

Transactions involving syndicated loans and related workouts, where competing lenders meet and exchange lending rate and fee proposals between themselves in connection with a syndicated loan or related workout, are not usually thought of as "joint ventures". The definition in the Act of a joint venture requires an "activity" to be carried on "jointly" by two or more participants. Recent media reports indicate the Government will encourage the ACCC to issue broad guidelines confirming such syndicated activities are exempt joint ventures. Notwithstanding the ACCC's guidelines, the definition of joint venture in the Act is not clear and a court may take the view that a syndicate of lenders does not comprise a joint venture. The consequences for a breach of the legislation are considered below.

In addition, in many transactions, lenders may need to disclose information to competitors that are not part of a syndicate, and the joint venture exemption clearly would not apply in these circumstances.

An example is the typical need for senior lenders and subordinated lenders to disclose to each other their respective pricing and terms so that each group of lenders can assess the entire capital structure of the borrower. Disclosures between competing lenders in that context does not appear to fall under any of the existing exemptions, other than opting for an ACCC notification.

The ACCC Notice exemption

Reliance on the need to notify each and every such arrangement seems to be a clumsy requirement. Difficult issues of confidentiality will apply to the information required to be submitted to the ACCC under that procedure.

The Bill introduces this new exemption process in addition to the exemptions already flagged in the Exposure Draft. This process will allow companies an exemption, on a case-by-case basis, if they file with the ACCC a notice of an intention to disclose specific pricing data to nominated competitors, for a specified purpose.

The exemption will apply automatically if, after a short period, (likely to be 14 days), the ACCC has not objected to the filing (on the ground that the notified conduct is contrary to the public interest). However the ACCC will also retain a right to later remove an exemption, on notice and without any retrospective effect, at any time after further review.

There are questions over the utility of the notification option:

will the notice be public or confidential? will it be too cumbersome to flood the ACCC with notices about everyday transactions which of themselves pose no concerns to competition? how will the ACCC review such notices? Can it undertake public market inquiries over the intended disclosure? And with which parties – the other competitors or customers?

Civil consequences for lending and enforceability?

While the ACCC will enforce the new law, it appears that customers will also be able to seek damages and injunction actions over unlawful price disclosures.

The civil impact of disclosure conduct which contravenes the new law is an important issue for the banking sector. For example:

Would the loan arrangements that result from an unlawful disclosure between syndicate members be invalid? Will a borrower be able to stymie enforcement action taken under a syndicated loan, if the exemption in the Bill does not apply for some reason? Will a party that suffers a loss caused by the conduct of other persons (eg. lenders) that contravened the new prohibition be able to receive compensation?

Risks in that area will clearly worry lenders.

We expect that there will be considerable debate over this Bill in coming months.

However it appears the Government is committed to some reform in this area, so that the real question is what changes might be made to the Bill before it becomes law to address the serious concerns of the banking industry.

You might also be interested in ...

Price signalling reforms might not solve the problem Price signalling

Disclaimer Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states or territories.

Car parts protected by copyright 5 April 2011

NautaDutilh recently marked an important victory before the Mons Court of Appeal in Belgium.

Philippe Péters represented the claimants, two large French automotive makers, against the distributors of non-original car body parts. The action was intended to put a halt to this activity, notably on the basis of copyright law.

The court confirmed that the parts for which the claimants sought copyright protection each have their own original character and that the functions they fulfil could be achieved using models very different from those which the car makers had adopted at the end of a creative process, in the course of which choices were made based not only on technical constraints such as aerodynamics, interior space and visibility (….) but also for the purpose of contributing to the general aesthetics of the vehicle in which the parts are used. The choices that were made go beyond know-how. Individually, the parts, which make up one component of a complex whole, are the result of intellectual effort by their designer and represent a subjective, aesthetic choice from amongst numerous possibilities.

With respect to ownership of the copyright, the court held that the parts in question, even if all do not bear the maker's mark, are integrated into the vehicles sold under these marks and appear in the makers' catalogues. The car makers can thus rely on the presumption of ownership provided for by Article 6(2) of the Belgian Copyright Act.

Finally, the court confirmed that any reproduction, even in part, of a work protected by copyright is sufficient to find an infringement when the reproduction concerns original elements.

The significance of this decision, which is a first in Belgium, is that it protects car body parts despite the fact that the Benelux countries introduced, effective 1 January 2003, the so-called repair clause into the Benelux legislation on designs and models. Pursuant to this clause, designs and models that constitute part of a complex product and are used for repair purposes are no longer afforded any protection.

This decision is also significant as it shows that copyright remains an effective means of protection, even when other IP rights are not available.

Contact

For questions and further information, please contact:

Brussels Philippe Péters (T. +32 2 566 84 02) Amsterdam Charles Gielen (+31 20 71 71 937) John Allen (T. +31 20 71 71 869)

April 8, 2011 - No 16/2011 www.tozzinifreire.com.br

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BRAZIL: DECREE 7,457/2011 – TAX ON FOREIGN EXCHANGE TRANSACTIONS IN RELATION TO FOREIGN LOANS

By virtue of Decree 7,457/2011, published on April 7, 2011, a rate of 6% became applicable to the Tax on Foreign Exchange Transactions (“IOF/FX”) in relation to foreign loan transactions (either in the form of a loan agreement or through bonds issued in the international market) with an average maturity term of up to 720 days. The previous rule indicated that this term was 360 days. Such 6% rate of IOF/FX is levied on the inflow of funds, including with respect to simultaneous foreign exchange transactions for inflow/outflow of funds, as required by applicable regulations. It should be noted that the IOF/FX is a tax whose rate may be changed at any time through a presidential Decree, up to a limit of 25%. Any such changes are effective immediately, unless otherwise provided in the relevant Decree. Accordingly, amendments introduced by Decree 7,457/2011 will apply over foreign exchange transactions effected as from April 7, 2011.

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Focus onInsolvency | Restructuring

APRIL 2011 

 1 Ontario Court of Appeal gives priority to 

pension plan wind‐up deficits in CCAA proceedings 

2 Contact Us 

 

Ontario Court of Appeal gives priority to pension plan wind‐up deficits in CCAA proceedings   By Mary Picard and Jane Dietrich  On April 7, 2011, in Indalex Limited (Re), 2011 ONCA 265 (Re Indalex), the Ontario Court of Appeal (the Court) held that in certain circumstances a pension plan wind‐up deficit should be paid in priority to claims of secured creditors, including amounts outstanding under a court‐approved debtor‐in‐possession facility (the DIP Facility).   

In Re Indalex the debtor company sponsored two defined benefit registered pension plans.  One was in the process of being wound‐up at the time of the CCAA filing and the subsequent motion for a sale of assets and distribution.  The other was not.  That difference between the status of the two plans affected the Court's analysis, but the Court's conclusion was the same with respect to both plans:  the deficit in both plans had priority over the super‐priority status that was granted to the DIP Facility in the CCAA proceedings.   

The Re Indalex decision is notable for a number of reasons.  

The Pension Benefits Act deemed trust extends to the full amount of the wind‐up deficit With respect to the plan that was in the process of being wound‐up at the time of the CCAA filing, the Court held that the deemed trust created by the Pension Benefits Act (Ontario) (the PBA) extends to the full amount of the wind‐up deficit.  The Court found that plan liabilities, including the wind‐up deficit even though not yet due under the PBA, accrue as of the wind‐up date and are 

deemed to be held, in trust, pursuant to section 57(4) of the PBA.    

The PBA deemed trust may extend to plans that are not wound‐up at the time of the CCAA filing Lawyers for the members of the pension plan that was not in the process of being wound‐up at the date of the CCAA filing argued that the deemed trust provisions of the PBA applied because it was inevitable that the plan would be wound‐up.  The Court noted that the opening words of the applicable PBA provision speak to "where a pension plan is wound up", and on its face suggest the deemed trust would not apply.   

However, the Court stated that it was troubled that Indalex could rely on its own inaction to avoid the consequences of a wind‐up.  In its reasons, the Court held that it did not need to determine that specific question in this case.  Rather, as explained below, the Court found that the deficit in the non‐wound‐up plan had priority over the claims of secured creditors as a result of Indalex’s “breach of fiduciary duty” as plan administrator.     

A wind‐up deficit may have priority on the basis of “breach of fiduciary duty” The Court provided a second reason for granting priority to the pension wind‐up deficits, quite apart from the application of the PBA deemed trust, which is novel.  The Court stated that the assets of a debtor company could be subject to a “constructive trust” at common law, as a remedy for the company’s breach of its fiduciary duty as plan administrator.   

It is well accepted in pension law that companies which administer pension plans have a fiduciary duty to act in the best interests of the pension plan’s beneficiaries.  Companies also have the right to act in the interests of their shareholders when they are required to make decisions about the pension plans.  These two roles (which sometimes conflict) have been confirmed in pension cases outside the insolvency arena.  This 

is sometimes referred to as the "two hats" dilemma. 

Re Indalex appears to be the first occasion where a court has applied the fiduciary duty to act in the best interest of the pension plan beneficiaries in order to grant a super‐priority to pension deficit claims.   

The Court found that Indalex had breached its fiduciary duty by failing to try to fund the deficits in each of the pension plans.  It was not sufficient for Indalex to simply make contributions to the plans when they were due under pension legislation.  Indalex breached its fiduciary obligations, the Court said, by (a) taking steps which undermined the possibility of additional funding to the plans; (b) applying for CCAA protection without notice to the members of the plans; (c)  obtaining a CCAA order that gave priority to the DIP lenders over "statutory trusts", without notice to the members of the plans; (d) seeking court orders approving the distribution of sale proceeds to the DIP lenders knowing that there would be insufficient monies to fund the plans' deficit; and (e) seeking a bankruptcy order to defeat the PBA deemed trust.   The Court stated: “In short, Indalex did nothing to protect the best interests of the Plans' beneficiaries and, accordingly, was in breach of its fiduciary obligations as administrator.” 

The Court also stated that Indalex should have taken steps to address the conflict:  the obligation to act in the interests of the shareholders versus the obligation to act in the best interests of the members of the pension plans.  The Court did not suggest how Indalex could have addressed that conflict.   

The Court determined that the appropriate remedy for Indalex’s breach of its fiduciary duty was to apply the common‐law equitable doctrine of “constructive trust” in order to grant priority to the pension deficit for both plans.   

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Questionable super‐priority of DIP Facility The Court also held that the super‐priority given to the DIP Facility under previous court orders (even though the orders had not been appealed) was not effective in these circumstances.   The order approving the DIP Facility contained the typical priority related language relied on by DIP lenders in most CCAA proceedings.   

The Court stated that the CCAA court does have the authority to grant a super‐priority charge to DIP lenders in CCAA proceeding and, under the doctrine of paramountcy, has the authority to override provincial legislation such as the PBA.  However, in Indalex, the Court found nothing to suggest that the doctrine of paramountcy was considered at the time of the granting of the order which approved the DIP Facility.  Rather, the Court noted that the PBA deemed trust was not specifically identified at the time the super‐priority charge was granted to the DIP lender and there was nothing in evidence to suggest such a priority was necessary.   

The Court held that to override the provincial deemed trust for pension deficits, Indalex should have specifically raised the issue of paramountcy, alerted the affected parties to the risks and put the affected parties in a position where they could have taken steps to protect their rights.  In this regard, the Court took into consideration the lack of notice that was given to the pension plan beneficiaries of the proceedings.    

Summary The Court of Appeal appears to have focused on the ‘equities’ of this case and emphasized that the decision with respect to the DIP priority (or rather lack thereof) is unique to the facts of this case.  In this respect, the Court made comments which appear to limit the effect of its decision by casting the contest not as one between a third party DIP lender and pension plan beneficiaries, but rather as an ‘equitable’ dispute between the pension plan beneficiaries and the principal secured creditor of Indalex’s parent company (as Indalex’s parent company was subrogated to the position 

of DIP lender as a result of payments made under its guarantee of the DIP Facility). 

Regardless of the Court’s attempts to emphasize the uniqueness of the circumstances of this case, this decision raises significant uncertainty with respect to a number of matters including (i) the priority of DIP financing; (ii) the priority of pension plan wind‐up deficits with respect to secured creditors generally; (iii) duties of debtors (and directors) to deal with pension issues during a CCAA proceeding; (iv), the effect of a subsequent bankruptcy on either the deemed trust under the PBA or a ‘constructive trust’; and (v) the application of the decision in the context of a receivership proceeding. 

At this early stage it is not clear whether or not leave to appeal to the Supreme Court of Canada will be sought.  

Contact Us 

For further information, please contact  Mary Picard or Jane Dietrich. 

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Supreme decree No. 78, Regulations of hazardous substances storage

If you have any questions regarding the matters discussed in this memorandum, please contact the following attorneys or call your regular Carey y Cía. contact.

This memorandum is provided by Carey y Cía. Ltda. for educational and informational purposes only and is not intended and should not be construed as legal advice.

Carey y Cía. Ltda.Isidora Goyenechea 2800, 43 FloorLas Condes, Santiago, Chile.www.carey.cl

NEWS ALERT 1

NEWSALERT March 31, 2011

Rafael VergaraPartner+56 2 928 22 10rvergara@carey.cl Juan Francisco MackennaPartner+56 2 928 22 10jfmackenna@carey.cl

Alberto CardemilPartner+56 2 928 22 11acardemil@carey.cl

• Description: The Regulations of Hazardous Substances Storage (hereinafter “the Regulations”), establish the security conditions appli-cable to the storage of hazardous substances listed on the National Standards for the Classification of Hazardous Substances, also known as NCh 382 of. 2004, and defined as any substance that could pose a threat to human and/or animal health, security and wellbeing. • Scope of Application: The Regulations prevail over the following regulations: (i) on Pesticides for Domestic and Sanitary Use, and, (ii) on the Environmental and Health Conditions applicable to Workplaces.

Notwithstanding, the Regulations are not applicable to the following subjects, among others: (i) hazardous wastes , (ii) radioactive subs-tances, (iii) explosives and substances which can be used at explosi-ves manufacturing , (iv) storage within port areas , and (v) storage carried out in the performance of mining activities , unless supporting facilities are located in urban areas insofar as they are compatible with Safety Mining Regulations. • Storage Conditions: Hazardous substances must only be stored in places specially designated for that purpose and be classified by quantity, type and hazardousness, according to the relevant standard criteria. Nevertheless, the Regulations authorize the temporary stora-ge of hazardous substances in a loading/unloading area, subject to its daily disposal.

Supreme Decree No. 148, Regulations on Hazardous Wastes Management.Law No. 17.798, Regulations on Weapons and Explosives Control. Decree No. 2.222, Navigation Law. Supreme Decree No. 132, Regulations of Mining Safety.

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NEWS ALERT 2

NEWSALERT March 31, 2011

In addition, the Regulations establish special storage conditions for the storage in common warehouses, in bulk, for bottled gases, solid and liquid flammable substances, organic peroxides, toxic and corrosive substances and hazardous substances storage in commercial stores. • Enforcement and Sanctions: The Regional Health Authority must oversee the compliance with the provisions set forth by the referred Regulations. The applicable sanctions are those established by the Sanitary Code.

• Validity: The Regulations came into force last March, 11th, that is, 180 days after it was published in the Official Gazette. Notwithstan-ding, existing storage facilities are given an additional time of two to five years to comply with the legal provisions, depending on whether they need substantial modifications, relocation, or if the company has more than two branches.

Fines range from US$10 up to US$ 75,500. Recidivism could be sanctioned with double of the original fine. In addition, infringements could be sanctioned with the closure of the facilities, the cancellation of the authorization, the order to stop the operation, and the confiscation or destruction of products.

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China Law Insight Posted at 11:49 AM on November 23, 2010 by King & Wood

New Government Policy Spurs on SOE Restructurings and Listings

By: Zhang Xiaomin, Yang Xiaoyu and Yang Wei

Recent government policy adjusting the number of central state-owned enterprises is likely to lead to numerous new opportunities for law firms hoping to participate in large scale restructuring and capital markets transactions. The Stated-Owned Assets Supervision and Administration Commission of the State Council (SASAC) recently stated that by the end of 2010, the number of central state-owned enterprises must be reduced to 80-100, of which 30-50 should be large internationally competitive corporations, and that by 2015, there should be no more than 1000 regional stated-owned enterprises. Industry insiders expect the recent policy change to lead to widespread potential for large scale securitization and IPO projects.

It is unlikely, however, that SOE enterprises will list without first attempting to increase their competitiveness through restructuring either through vertical integration or through the bundling of small and uncompetitive enterprises into one larger “China Investment No.2,” such as the Guoxin Corporation.

SOE's are also unlikely to rush into public offerings. Despite the recent policy change, by September 2010, the number of central state-owned enterprises had only reduced by six, 23 less than the yearly quota. It is likely, therefore, that the end of 2010 will bear witness to a wave of SOE restructurings.

Even the most succesfull regional efforts were unable to meet government set quotas. Although the Greater Shanghai area was most effective at implementing out the government’s new SOE policy, statistics show that the securitization rate of state-owned assets in Shanghai is still far below the rate fixed by the policy change, only 25.4%. The municipal government is expected to follow the closing of the World Expo with renewed effort in the restructuring of state-owned assets, and it is estimated that over RMB 20 billion state-owned assets will enter the stock market in 2010.

In China’s north-west Xinjiang province, the listing of the affiliated companies of Xinjiang Production & Construction Corps (XPCC) has drawn widespread attention. Shang Fulin, president of China Securities Regulatory Commission (CSRC), recently stated that the CSRC will provide support to XPCC in corporate financing matters, acquisitions, restructuring and futures market building. The CSRC will also support the

listed subsidiaries of the XPCC in operation and development. By the end of 2009, the Xinjiang autonomous region had 36 listed companies, among which XPCC companies made up approximately 50%. The remaining enterprises are primarily subsidiaries of SASAC. Currently, XPCC has 14 listed companies, 13 of which are A-share companies. With government backing, it is very likely that XPCC’s unlisted subsidiaries will remain good IPO prospects in the near future.

Comments (0) Read through and enter the discussion with the form at the end King & Wood PRC Lawyers 40th Floor, Office Tower A, Beijing Fortune Plaza, 7 Dongsanhuan Zhonglu, Chaoyang District Beijing 100020, China

Latest Amendments to the Foreign Exchange Regime Effective from March 1, 2011

Thursday, 03 March 2011 00:00

Forex, Derivatives and Structured FinanceNews Flash Número: 110

Latest Amendments to the Foreign Exchange Regime Effective from March 1, 2011

On February 25, 2011, the Colombian Central Bank amended Regulation DCIN-83 (the "Regulation") to reflect recent modifications to the External Resolution 8 of 2000. Additionally, changes were introduced with respect to foreign portfolio investments, completing the regulation of Decree 4800 ofDecember 2010. Hereinafter, we present the most important aspects of the new Regulation DCIN-83:

1. Regulation 2 issued on December 17, 2010, eliminated the restriction pursuant to which foreign exchange declarations could only be replaced within 15 business days from the filing of the relevant foreign exchange declarations. Consequently, foreign exchange declarations from now on can be clarified and/or replaced at any time. The recent amendments to the Regulation set out the applicable procedures for clarifications and replacement of foreign exchange declarations that have been filed on or after February 8, 2011.

2. The new Regulation confirmed, with respect to foreign trade, that the only transactions that constitute foreign indebtedness are the following: (i) credits for the pre-financing of exports made by residents and users of free trade zones, (ii) the financing of payments in advance for the purchase of goods by free trade zone users and imports of goods by residents, and (iii) the financing of imports of goods through financial leases.

This implies that the financing of imports with a term of more than six months and an amount exceeding USD 10,000, will not be considered as passive foreign indebtedness and consequently will not have to be reported as such to the Colombian Central Bank. Likewise, the financing ofexports for a term exceeding twelve months and an amount greater than $ 10,000 will not be considered as active external indebtedness and consequently will not have to be reported as such to the Colombian Central Bank.

3. The International Investment Regime (Decree 2080 of 2000) previously classified as “portfolio investments” any investments in American Depositary Receipts (ADR's) and Global Depositary Receipts (GDR’s). With the issuance of Decree 4800 of 2010, the scope of the certificates’ underlying securities was expanded beyond equity securities to cover all types of "securities." The Regulation further broadened the requirements of Decree 4800 of 2010 to specifically include, as a type of portfolio investment, investments in Global Depositary Notes (GDNs).

For further information, please contact:

Carlos Fradique-Méndez cfradique@bu.com.co Ana María Rodríguez arodriguez@bu.com.co

Adriana Ospina aospina@bu.com.co María Andrea Calero mcalero@bu.com.co

Andrés Vásquez avasquez@bu.com.co

LEGAL INFORMATION INTRANET WORK WITH US ESPAÑOL PORTUGUES

Calle 70A No. 4 - 41 Bogotá - Colombia Tel: (571) 346 20 11 Fax: (571) 310 06 09 - (571) 310 05 86 servicioalcliente@bu.com.co

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EDITORIAL Hungary 2011: a more investor-friendly environment? With the recent nationalisation of pension funds and the new media law, Hungary has been the focus of much international news coverage, a situation made only more sensitive by the downgrading of the country's sovereign credit rating and the suspension of negotiations with the International Monetary Fund. Nevertheless, recent tax reforms (cf. this issue p. 3) and the government's economic development programme could help to regain the trust of foreign investors and stimulate investments in the Hungarian market. The new Széchenyi Plan, unveiled on 14 January 2011, aims to strengthen tax benefits for companies and improve competitiveness and the Hungarian business environment by issuing invitations to tender which provide access to European and domestic funding in seven key areas (health care, renewable energies, housing, boosting businesses, transport, research and development, and jobs). The government hopes to finance the plan through domestic and European funds. According to figures from the Ministry of Development, HUF 2000 billion (i.e. around EUR 7.5 billion) of EU funding will be pumped into the Hungarian economy between 2011 and 2013. On 10 February, the government published 77 calls for tenders worth a total of HUF 510 billion (i.e. around EUR 2 billion) with bids accepted from 1 March. The Plan's authors hope that the subsidies available will help to attract foreign investors. The health care sector is one of the government's priority areas and measures include some particularly ambitious programmes to subsidise research and development. More precisely, the total R&D programme is valued at over HUF 72 billion (i.e. around EUR 270 million) and should help to subsidise cutting-edge technologies, develop training, encourage innovation and improve the quality of higher education. In all, some 23 calls for tender for health care projects have been published worth a total or HUF 31.1 billion (i.e. around EUR 130 million). According to government forecasts, if the Plan's goals are attained, the research and development sector should account for 1.5% of the country's GDP by 2014 and place Hungary among the top third of EU countries by the end of the decade. This makes it reasonable to assume that tax reductions granted to companies involved in R&D, particularly in the pharmaceuticals, automotive and telecommunications sectors, will probably be maintained. The Plan includes a chapter entitled "Green Energy" which considers issues with regard to energy, and more particularly, the promotion and efficiency of energy security. It sets out measures to reduce energy consumption and develop renewable sources of power. The chapter includes 15 calls for tender worth a total of over HUF 120 billion (i.e. around EUR 450 million). There are numerous opportunities, notably concerning ways to improve the energy performance of buildings and spreading the use of renewable energies. Measures likely to appeal most to investors, other than the tax incentives, are featured in the chapter concerning ways to boost business. The Plan aims at promoting a stable and predictable business environment, cutting red tape, and developing dynamic local authorities to provide more efficient services for economic operators. The Plan's authors also undertake to ensure that Community funds are distributed quickly and efficiently in line with the stated objectives. Sixteen calls for tenders have been published to this end worth a total of HUF 147 billion (i.e. around EUR 550 million). The Plan seeks to boost job creation by supporting small and medium-sized businesses. A total subsidy of HUF 60 billion (i.e. around EUR 230 million) will be granted to projects which favour the employment of disadvantaged people. Other projects of note include those which aim at developing transport by focusing on Hungary's strategic geographic position to develop the country's road infrastructure and build logistics hubs. Funding of over HUF 75 billion (i.e. around EUR 280 million) is to be allocated for these purposes to subsidise logistics services and hubs, build new roads and renovate existing highways. We believe that the Plan provides investors with a number of opportunities whose feasibility and success will ultimately depend on structural measures that are to be announced soon by the government.

________________

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HUNGARY

GIDE LOYRETTE NOUEL - D'ORNANO IRODA Roosevelt tér 7-8, Building C 4th floor

1051 Budapest - Hungary Tel. +36 1 411 74 00 - Fax +36 1 411 74 40

Contact: François d'Ornano ■ ornano@gide.com TAX REFORMS The Hungarian Parliament has recently adopted a certain number of tax reforms (Laws XC and CXXIII of 2010) with a view to regaining the trust of foreign investors and stimulating investments in the Hungarian market. Corporate tax The corporate tax reform is particularly favourable for companies: from 1 July 2010, the applicable rate is 10% for the first bracket of the tax base (up to HUF 500 million - around EUR 1,822,800) and 19% for the second bracket (above HUF 500 million). Previously, companies paid corporate tax at a rate of 19% and could only benefit from a reduced rate of 10% for the first HUF 50 million under certain conditions. Furthermore, the law which amends the provisions on corporate tax also provides that, from 1 January 2013, corporate tax will be levied at a flat rate of 10%, regardless of the amount of the tax base. Social contributions Employers' social contributions have also been reduced. Until 31 December 2010, social contributions were calculated on the basis of twice the minimum wage, even if an employee's actual wage was lower than this amount. Since 1 January 2011, social contributions are henceforth calculated on the basis of the employee's effective wage/salary. Local taxes Similarly, local taxes have also been cut. In total, ten local taxes have been repealed: seven during summer 2010 and three since 1 January 2011. The latter include the local tax paid by companies to the authorities of the localities in which their personnel are employed. Tax treatment of real estate disposals It should also be noted that the tax system for intra-group real estate disposals has become more favourable to the extent that the acquisition by a related enterprise of a shareholding in an undertaking with real estate assets in Hungary is henceforth exempt from transfer duties. The buyer of such a shareholding was previously liable to the payment of rights of up to 4% of the value of the amount calculated on the basis of the value of the real estate assets, the share capital of the undertaking which owns the real estate assets, and the value of the acquired shareholding. Income tax Lastly, since 1 January 2011, a flat rate personal income tax of 16% has been in force. Previously, income tax was levied on an incremental basis with the rate of 17% applicable to the first bracket of the tax base (up to HUF 5 million - around EUR 18,200) and 32% for the second (above HUF 5 million).

RESTRICTION OF ACCESS TO OWNERSHIP OF HUNGARIAN AGRICULTURAL LAND: the European Commission extends the transitional period The Accession Act of Hungary to the European Union in 2003 provided that the prohibitions set forth in Hungarian legislation of the time, with regard to the acquisition of agricultural land in Hungary by foreign and non-resident individuals or undertakings, were extended for 7 years, i.e. until 30 April 2011. This temporary exception to the free movement of capital, guaranteed by articles 63 to 66 of the Treaty on the functioning of the European Union, aimed at avoiding, by the temporary maintenance of socio-economic conditions, too many disturbances to the Hungarian agricultural land market during its integration into the single market and the transition to the Common Agricultural Policy. Pursuant to a request submitted by Hungary on 10 September 2010, the European Commission, in its decision dated 20 December 2010, authorised Hungary to extend this transitional period for the acquisition of agricultural land for three years, i.e. until 30 April 2014, given that current conditions indicate that its immediate termination would be premature. One of the major arguments put forward by Hungary to justify this request for an extension is the continuing difference in the prices of agricultural land and income levels in Hungary in comparison with the countries which were Member States of the EU before 2004. Indeed, according to data submitted by the Hungarian authorities, although the average prices of agricultural land have been steadily converging towards those of the EU, they still represent, from case to case, between a third and a twentieth of the value. Furthermore, details provided by Hungary point to continuing difficulties in obtaining credit. Other factors specific to Hungary have also played a role in this request for an extension, in particular the slow progress in the consolidation of agricultural land and the delays in the still incomplete process of land restitution and privatisation. While the European Commission accepts that termination of the transitional period would involve a substantial risk to the Hungarian agricultural land market, it also indicates that the inflow of capital and foreign investments would be beneficial to the Hungarian agricultural land market, improving both the land market's functioning and productivity, and injecting expertise and capital. Lastly, the Commission pointed out that the country must make further progress with regard to certain institutional issues in order to develop the agricultural market. Measures include improving credit and insurance facilities for farmers, concluding the land restitution programmes and finalising legal certification procedures for property rights. In any case, the transitional period cannot be extended a second time and will definitively expire on 30 April 2014.

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30/03/2011 NEW BI REGULATION ON COMMERCIAL BANKS' SOUNDNESS RATING Bank Indonesia is making efforts to effectively conduct its supervisory role in the increasingly complex situations in the banking industry. One such effort is the issue of its Regulation No. 13/1/PBI/2011 regarding Assessment of Commercial Banks’ Soundness (the “BI Regulation 13/2011”). As a general rule, Bank Indonesia imposes on banks the obligation to conduct self assessment of their soundness both individually and by consolidating with its subsidiaries. The self assessment is a risk-based assessment that comprises assessment of the following elements: (i) risk profile; (ii) good corporate governance; (iii) earnings; and (iv) capitalization. These four elements are further elaborated in Article 7(1). This self assessment must be conducted at least twice a year, at the end of June and December respectively. Article 4 stipulates that Bank Indonesia will also separately conduct its assessment of a bank’s soundness at the end of June and December, and may update its assessment at any time deemed necessary. The assessment conducted by Bank Indonesia will be made on the basis of the data supplied by the commercial bank concerned as well as other sources. Banks that are assessed as having problems or having breached the prevailing regulations in a way that significantly affects their soundness and operations will be required to submit certain action plans to remedy their situation. Article 17 of the Regulation sets out sanctions for non-compliance that include written warnings, rating downgrading, suspension of certain banking activities, and placing of the names of the management and shareholders in the list of those who have failed the fit and proper test. BI Regulation 13/2011 repeals and replaces BI Regulation No. 6/10/PBI/2004 regarding Bank Rating System. This new regulation has been in force since 5 January 2011, but the assessment meant in it will only start to be implemented on 1 January 2012. (by: Hamud M. Balfas).

L E G A L U P D A T E

March 1, 2011

A New Legal Framework on Oil Matters?

An energy related reform in Mexico is always a controversial topic. Besides being an economic and legal issue, it is a political problem. For Mexicans, natural resources -hydrocarbons in particular- are summarized in one word: PEMEX1. In recent years, the Mexican oil industry has faced a series of problems: a low production and decline of the main oilfield, Cantarel; an imminent decline of the Ku Maloop Zaap oilfield; insufficient substitution of future reserves, along with the constant increase in extraction related costs, among others. The Mexican government pushed for an energy reform, ideally allowing for private participation -both domestic and foreign- in aspects of crude oil extraction and production. On November 28, 2008, seven decrees forming the so called energy reform were published in the Federal Official Gazette, including amendments to existing regulation, a new law for PEMEX and new statute for the use of renewable energy, among others. As a consequence of the above, there is some room for the private sector to participate with PEMEX in its modernization process, as a contractor of the Mexican oil company. Such participation has by no means been as fast and as open as required; new regulations were enacted by the executive branch in an effort to implement the purposes of the reform, affording the possibility for PEMEX to improve and somehow soften its contracting ability with the private sector. This includes the possibility for PEMEX to enter into incentivized contracts with players offering high performance through the use of high-technology, greater efficiencies and lower costs, among others. 1 Petróleos Mexicanos, the Mexican Oil Company.

2

The new Incentivized Contracts The new legal framework looks to increase the value of the Mexican state-owned oil industry, on a result-oriented basis. It affords PEMEX greater flexibility to contract activities related to exploration, development and production of oilfields, no longer requiring traditional strict rules provided for under the general statute. A new contracting structure is now in place for exploration and production activities. PEMEX Exploración y Producción (ÉMEX subsidiary, -PEP) is now allowed to enter into incentivized contracts, offering economic incentives based on actual performance (pursuant to performance standards recognized internationally). Even though Regulations allowing for the possibility to execute this type of contracts were challenged by the Mexican House of Representatives in October 2009, the Supreme Court has now ratified that the same are constitutional. Payments to contractors must be in cash, based on a percentage of recovery of costs incurred by the contractor, plus a fee per barrel. The term of these contracts is expected to go from twenty to thirty years (including a two-year initial phase where tests are carried out and the area is analyzed, a three to seven subsequent phase for infrastructure works, and a phase of ten to fifteen years for secondary production or enhanced recovery). These contracts do not imply concessions nor production sharing arrangements and have therefore been declared constitutional (i.e., they do not offer a stake in hydrocarbon’s ownership). The fixed payment per barrel does not have a relation with oil prices (it is to be determined in advance in the contract). The contracts will be awarded following a tender process to the contractor offering the lowest price per barrel and a service under international standards. Differences between traditional (public works) contracts that PEMEX has previously tendered through PEP and incentivized contracts include the following:

Payments Traditional contracts allow only for lump-sum, unit, mixed and scheduled amortization prices.

Incentivized contracts allow for the price to be determined according to specific needs/projects and for performance economic incentives.

Penalties Traditional contracts allow the application of penalties for mere delay in performance.

Incentivized contracts may set penalties based on negative impact on matters of environmental sustainability and failure to comply with time, opportunity and quality standards.

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Term Traditional contracts are executed for a determined (fixed) term, following the rules of civil works contracts.

The term for incentivized contracts is flexible following specific needs and services contracted.

The contracting structure is expected to contribute to the generation of value for PEMEX and allow an increase in performance capacity through structures that are more profitable and competitive in areas with potential, such as mature fields, Chicontepec and deep waters. The first projects have been announced to take place in mature fields located in the Southeastern and Northern basins, where 29 percent of Mexico’s total reserves are located. PEMEX is expected to publish a call for a tender process in March of 2011 for three new areas under this structure for the reactivation of mature fields: Magallanes, Santuario and Carrizo, in the State of Tabasco. The purpose of transforming PEMEX into an efficient entity is a complex but yet tangible process. The challenge is clear, to have a Mexican industry that is more efficient and autonomous. For further information, please contact your princi pal Firm representative or one of the lawyers liste d below. Mexico City Office Mr. Juan Carlos Machorro (Part ner), jmachorro@s-s.mx

Ms. Mónica Santoyo, msantoyo@s-s.mx Tel.: (+52 55) 5279-5400 Fax 5280-7866

April 2011

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The relationship between these two powers has recently been the subject of a Court of Appeal decision, which focused on the scope and duration of confidentiality orders in a case where those orders had been placed over the content of compulsory interviews.

This decision will impact on the way the Commission will conduct its investigations and is therefore of interest to any business that is or may be investigated by the Commission. The decision overturned an earlier decision of the High Court which had limited the scope of confidentiality orders issued by the Commission.

THE COMMERCE COMMISSION’S POWERS

Under section 100 of the Commerce Act, the Commission can place a confidentiality order over any documents or information given to it in the course of its investigation.

Under section 98 of the Commerce Act, the Commission has the power to compel individuals to attend interviews for the purpose of the Commission’s investigation.

COMMERCE COMMISSION’S APPROACH TO INTERVIEWING EXECUTIVES OR EMPLOYEES

The section 98 interview is a tool that the Commission often employs to gather information. There has been concern however as to the way in which the Commission has exercised these powers in regard to the relationship between a company and its employees.

The Commission has taken the view that a director or employee of a company is being interviewed as an individual, not as a representative of the company they work for. Therefore the company’s lawyers or a representative from the company are not able to be present at the individual’s interview and the transcript of the interview is not made available to the company.

Whether this approach is correct has not been tested yet, but it is a concern to a large number of organisations that are the subject of Commission investigations. In our view this approach is inconsistent with the ability to attribute actions of an individual to the company under the Commerce Act, and it

COMPETITION LAW CONFIDENTIALITY OF COMMERCE COMMISSION INTERVIEWS – THE AIR NEW ZEALAND COURT OF APPEAL DECISIONThe Commerce Commission has broad powers under the Commerce Act to aid its investigation of potential breaches. These powers include the power to interview people, and the power to impose confidentiality orders over information it receives.

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can hinder an organisation’s ability to assess its risk and defend itself.

THE AIR NEW ZEALAND CASE

The Commerce Commission took this approach one step further when investigating alleged anti-competitive conduct in the air cargo industry by placing confidentiality orders (under section 100 of the Commerce Act) over interviews with Air New Zealand employees. The confidentiality orders were extensive and prevented disclosure of not just information provided by the interviewee, but also information provided by the Commission to the interviewee, including their questions and any transcript of the interview, and any documents shown or discussed at the interview.

As a result of its investigation, the Commission commenced proceedings against Air New Zealand and 5 of its executives for breaches of sections 27 and 30 of the Commerce Act. Air New Zealand then challenged the scope and duration of those confidentiality orders.

The High Court in Commerce Commission v Air New Zealand (HC, Auckland, Andrews J, CIV 2008-404-1554, 21 October 2009) found in favour of Air New Zealand. It held that section 100 does not empower the Commission to maintain confidentiality orders after the date of commencement of proceedings. The Court also held that the power to prohibit disclosure did not extend to information given by the Commission (for example the questions asked by the Commission). However it held that section 100 does not just apply to commercially sensitive information.

Both parties appealed this decision. The Court of Appeal recently released its decision in the case of Commerce Commission v Air New Zealand [2011] NZCA 64.

KEY ISSUES

The Court considered that the three key issues in the appeal were:

(a) Whether section 100 covers only confidential information provided to the Commission;

(b) If so, whether section 100 orders can cover questions posed, and other material put, to a witness by the Commission; and

(c) Whether section 100 orders can survive the issuing of proceedings.

Does section 100 cover only confidential information?

In relation to the first issue, Air New Zealand argued that the purpose of section 100 orders is to protect the confidentiality of information for the benefit of the holders of the information and they cannot be used to impose blanket ‘gagging’ orders. The Court of Appeal rejected this. It accepted the Commission’s submission that section 100 did not contain any limitations. The Court of Appeal sought to qualify this by saying:

There is, however, a difference between having wide powers and exercising them. Making a section 100 order is a serious step and before the Commission does so it should satisfy itself that such an order is necessary in the context of the particular investigation being undertaken. Any orders made, and their scope and duration, should be kept under review.

The Court of Appeal considered that section 100 gives the Commission the power to frame orders that prohibit discussion with anybody about the “information, documents or evidence” covered by the section. Therefore, the Commission was entitled to prohibit discussion of the facts by the employees with their employer.

Can the section 100 orders cover questions posed by the Commission?

The Court held that section 100 does not explicitly protect information provided by the Commission (except to the extent that the information provided has in turn been provided to the Commission and is thus potentially subject to section 100). However the Court of Appeal went on to say that orders can be made to suppress evidence given to the Commission, which could include both questions and answers. The Court of Appeal noted that the specific orders in this case covered the whole of the interviews, and much of this was trivial. It stated that “the Commission should consider when making an order whether the section 100 order can and should be made on a more limited basis”.

Can section 100 orders survive the issuing of proceedings?

The final issue was whether the section 100 orders could remain in effect once the Commission had issued the proceedings. Under section 100, the orders remain in effect until the investigation is concluded, but not thereafter. The Court considered whether the investigation was “concluded” when proceedings were issued for the purpose of section 100(2)(b).

The Court held that an investigation may be continuing once proceedings were issued, and that this was a question of fact. They considered that there is nothing in section 100 to limit

It was argued that the purpose of the orders is to protect the confidentiality of information for the benefit of the holders of the information and they cannot be used to impose blanket ‘gagging’ orders. The Court of Appeal rejected this.

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This newsletter is produced by Simpson Grierson. It is intended to provide general information in summary form. The contents do not constitute legal advice and should not be relied on as such.

Specialist legal advice should be sought in particular matters. © Copyright Simpson Grierson 2011.

A SIMPSON GRIERSON PUBLICATION

the scope of an investigation to that part of an investigation that precedes the filing of proceedings. However again, the Court of Appeal qualified this by saying:

As we noted earlier, however, there is a difference between having a power and exercising it. The fact that litigation has commenced or is about to commence is a major change of circumstances. Any existing section 100 orders should be reconsidered if proceedings are issued. The section 100 orders are also, after litigation has commenced, subject to the supervisory jurisdiction of the Court.

CONCLUDING THOUGHTS

The decision will have a significant impact on the investigation process. This issue is of very real significance to any company being investigated by the Commerce Commission under the Commerce Act. The ability of the Commission to impose such wide-reaching confidentiality orders on employees limits the ability of a company to fully defend itself when facing Commission action.

ANNE CALLINAN – PARTNERT. 09 977 5031 M. 021 403 592 E. anne.callinan@simpsongrierson.com

JAMES CRAIG – PARTNERT. 09 977 5125 M. 021 497 713 E. james.craig@simpsongrierson.com

PETER HINTON – PARTNERT. 09 977 5056 M. 021 446 866 E. peter.hinton@simpsongrierson.com

ELISABETH WELSON – PARTNERT. 04 924 3400 M. 029 924 3400 E. elisabeth.welson@simpsongrierson.com

CONTACT DETAILS

ALICIA MURRAY – SENIOR ASSOCIATET. 09 977 5115 M. 021 302 751 E. alicia.murray@simpsongrierson.com

TIM STEPHENS – PARTNERT. 04 924 3525 M. 021 720 920 E. tim.stephens@simpsongrierson.com

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MARCH 2011 BUSINESS BULLETIN

::: AUTHORS :::

Marian HO Partner Corporate marian.ho@rodyk.com +65 6885 3610

Dual Listings – A Singapore Perspective

Introduction There have been a growing number of Singapore-listed companies taking the dual listing route, i.e. where the company is allowed to be listed and traded on the Singapore Exchange Securities Trading Limited (“SGX”), as well as on the stock exchange of another country. This article discusses why a Singapore-listed company would seek a dual listing and the main steps involved, and several key considerations, in a dual listing. Why a Singapore-listed company would seek a dual listing Various jurisdictions have different pull factors to attract a Singapore-listed company to list its shares on its stock exchange. Gateway to neighbouring economies with professional expertise Some foreign jurisdictions are strategically located in regions with close trading and business links to neighbouring economies. If these jurisdictions are also internationally recognised financial centres abundant with professional financial expertise, a Singapore-listed company may opt to list its shares there to take advantage of fundraising opportunities. Strong legal system and sound regulatory framework A Singapore-listed company may choose to list its shares in a jurisdiction with a well established legal system because this provides a strong and attractive foundation for the company to raise funds and inspire confidence among its investors. Further, the foreign jurisdiction’s listing rules may be similar to the SGX’s listing manual, which is on par with international standards, demands a high level of disclosure from issuers, and contains stringent corporate governance requirements to give investors access to timely and transparent information so they can appraise the position and prospect of the listed companies. Free flow of capital and information A Singapore-listed company may choose to list in a foreign jurisdiction which provides benefits such as zero capital flow restrictions, numerous tax advantages, currency convertibility and the free transferability of securities. Such benefits offer an attractive market for both issuers and investors alike. Main steps of dual-listing Generally, depending on the foreign jurisdiction’s stock exchange governing body, the entire corporate exercise would typically take approximately nine to 12 months to complete. The process would generally involve the following steps (but please note that this is a non-exhaustive list as each foreign jurisdiction may have its own additional specific requirements):

Keith YONG Associate Corporate keith.yong@rodyk.com +65 6885 3764

Victor CHONG Foreign Lawyer Corporate victor.chong@rodyk.com +65 6885 3776

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MARCH 2011 BUSINESS BULLETIN

> appointing various professional parties and allocating responsibilities;

> legal and finance due diligence on the issuer and its group of

companies;

> drafting the prospectus;

> amending the Singapore-listed company’s memorandum and articles of association (“M&AA”);

> drafting the extraordinary general meeting (“EGM”) circular;

> verification meetings and board meetings;

> announcement to SGX;

> filing the preliminary prospectus with the foreign jurisdiction’s stock

exchange governing body and the relevant securities and futures commission;

> preparing road show materials;

> obtaining clearance of amendments to the Singapore-listed

company’s M&AA and draft EGM circular from the foreign jurisdiction’s stock exchange governing body and the relevant securities and futures commission;

> submitting the amended M&AA and draft EGM circular to SGX for

vetting and clearance;

> despatching the EGM notice and circular to shareholders in Singapore;

> conducting the EGM to approve the dual listing and amended

M&AA;

> announcement of share transfer from Singapore to the foreign stock exchange in batches;

> receipt of approval in principle from the foreign jurisdiction’s stock

exchange governing body for prospectus printing;

> board meeting to approve board listing and other relevant matters;

> issuance of prospectus and other listing documents;

> road show and press conference;

> arrival of first batch of transferred shares from Singapore; and

> commencement of trading.

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MARCH 2011 BUSINESS BULLETIN

Role of Singapore Counsel The responsibilities of the Singapore counsel in the dual listing process would generally include the following (but please note that this is a non-exhaustive list as each jurisdiction may have its own additional specific requirements):

> drafting the relevant Singapore law aspects of the prospectus;

> drafting the EGM circular;

> drafting various board resolutions for the issuer;

> reviewing and amending the issuer’s M&AA;

> conducting verification meetings and board meetings;

> drafting the announcements to be made to SGX; and

> submitting the draft EGM circular and draft M&AA to SGX for approval;

Key considerations Some key considerations which an issuer should bear in mind include the following: Offering structure considerations Depending on the requirements of the foreign stock exchange, there may be “lock-up periods” imposed on the controlling shareholders, which restrict their ability to deal freely with their shares. The Singapore-listed company should also consider the offering structure. Typically, there are two main structures – the issuance of new shares or the sale of existing shares. Depending on the requirements of the foreign stock exchange, the Singapore-listed company should consider the number of executive directors, non-executive directors and independent non-executive directors as well as the composition of the audit committee, remuneration committee and the nomination committee. Accounting and financial reporting Depending on the financial criteria of the foreign stock exchange for listing, the Singapore-listed company may have to conduct tests involving its profits, market capitalisation, revenue, cash flow, etc. to assess whether it meets the relevant criteria for listing. It may also have to prepare a profit forecast and a cash flow forecast.

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MARCH 2011 BUSINESS BULLETIN

Conclusion More often than not, a Singapore-listed company will tend to reap the benefits of listing its shares on a foreign stock exchange. However, it should take note of the main steps that are involved as well as the key considerations that should be taken into account before it embarks on this corporate exercise.

This article is for general information purposes only. Its contents are not intended to be legal or professional advice and are not a substitute for specific advice relating to particular circumstances. Rodyk & Davidson LLP does not accept responsibility for any loss or damage arising from any reliance on the contents of this article. If you require specific advice or have any questions, please contact the author(s) or our Editor.

Editor Claire WONG | claire.wong@rodyk.com | +65 6885 3703

© Rodyk & Davidson LLP 2011. Limited Liability Partnership Registration No. T07LL0439G.

This article was also published in the Rodyk Reporter March 2011 issue

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2ND PHASE OF EARLY HARVEST SCHEME OF ECFA◎Jason Chou

The Cross-strait Economic Cooperation Framework Agreement (ECFA) took effect on 12 September 2010. The second phase of the early harvest scheme was implemented on 1 January 2011. Taiwan has opened to China the design service companies (excluding interior design and industrial design companies), the jointly exhibition services, the sports and enter-tainment services, and the China banks can set up branch offices in Taiwan. On the other hand, China has opened to Taiwanese design service companies, hospital operators, aircraft mainte-nance companies, banks, insurance companies and securities firms.

Starting from 1 January 2011, Taiwanese banks may set up branches in China after having established a representative office for more than one year. They may offer yuan services to Taiwanese customers in China if their branch office makes profits in the first year of operations and may extend those services to other customers after two years of profitable operations.

Taiwanese insurance companies may set up insurance companies in China if their group has a capital of more than US$5,000,000,000, they have operated for more than 30 years and they have set up a representative office in China for more than two years.

The Taiwan Stock Exchange and the Taiwan Futures Exchange will be listed as Qualified Domestic Institutional Investors of China.

Also, Taiwanese companies may set up wholly-owned aircraft maintenance companies or design service companies in China and Taiwanese hospitals can set up wholly-owned hospitals in certain areas of China.

Lee and Li Bulletin_January 2011 Issue

Copyright © Lee and Li, Attorneys-at-Law, All rights reserved.

Page 1 of 3

March 30, 3011

Dukes v. Wal-Mart Stores, Inc., Supreme Court Oral Argument Summary Yesterday the Supreme Court heard oral argument in Dukes v. Wal-Mart Stores, Inc., a case that may become a landmark ruling in class action litigation. Dukes is the most important class action case to reach the Supreme Court in decades because it gives the Court an opportunity to examine — and curb — potential abuses of the class action device. The sheer size and breadth of the class certified by the District Court and upheld by the en banc Ninth Circuit — roughly 1.5 million women employed at any Wal-Mart store in the United States since 1998 — underscore the importance of the case to businesses facing possible class action litigation. Anticipated issues In seeking certiorari, Wal-Mart asked the Court to review whether the class claims for back pay — which could amount to more than a billion dollars — were properly certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The Supreme Court granted review on that question, but it also posed a question of its own: Whether the class even satisfied the threshold requirements of Rule 23(a). Rule 23(a) issue. To be certified, a class must meet the requirements of Rule 23(a), which include: (1) numerosity, i.e., that joinder of all class members would be impracticable; (2) commonality, i.e., that class members share common questions of law or fact; (3) typicality, i.e., that claims or defenses of the representative parties are typical of the claims and defenses of the class; and (4) adequacy, i.e., that the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Each of these four conditions must be met in order for a class to go forward. Rule 23(b)(2) issue. In addition to meeting the requirements of Rule 23(a), a class must also satisfy one of the three elements of Rule 23(b). The only element remotely applicable to this class is Rule 23(b)(2), which provides that a class may be certified only if "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief...is appropriate respecting the class as a whole." By the Rule's express language, Rule 23(b)(2) class certification "does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages." That raises considerable problems for this class because, in addition to seeking injunctive and declaratory relief, the class also sought potentially billions of dollars in back pay. The Ninth Circuit had nevertheless affirmed the class under Rule 23(b)(2) based on its application of a new multi-factor predominance test. Under that test, a court considers several factors to determine whether monetary damages "predominate" over the injunctive relief with which Rule 23(b)(2) is traditionally concerned. This new standard created a three-way circuit split. The Fifth, Sixth, Seventh, and Eleventh Circuits apply an "incidental damages" test that prohibits certification under Rule 23(b)(2) unless the monetary relief "is incidental to requested injunctive or declaratory relief." Allison v. Citgo Petroleum Group, 151 F.3d 402, 415 (5th Cir. 1998). And the Second Circuit examines whether, "even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought" for Rule 23(b) certification. Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 164 (2d Cir. 2001).

Page 2 of 3

Oral argument focus Rule 23(a) requirements. In yesterday's oral argument, the Court focused on whether plaintiffs had satisfied the requirements of Rule 23(a) by sufficiently showing that a Wal-Mart policy translated to local discriminatory acts against women. Counsel for Wal-Mart, Theodore J. Boutrous, Jr., argued that plaintiffs' "incoherent" theory — that delegation of excessive discretion to managers caused a corporate policy of discrimination — cannot meet the requirements of Rule 23(a). When Justice Kagan asked Mr. Boutrous whether complete subjective discretion could be a policy in and of itself, as the Court held in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), Mr. Boutrous conceded that it could. But Mr. Boutrous countered that plaintiffs' theory was not such a case because plaintiffs impossibly argue that Wal-Mart personnel decisions are both totally discretionary and informed by company values. Joseph M. Sellers, counsel for the plaintiffs, faced harsh questioning from several justices on this very point. Justice Kennedy told Mr. Sellers that the plaintiffs' theory of the case "faces in two directions," contains an "inconsistency," and that he was "just not sure what [] unlawful policy" plaintiffs' claim Wal-Mart has adopted. Justice Scalia similarly commented that he was "getting whipsawed," since on the one hand, plaintiffs argue that personnel decisions were utterly subjective, and on the other hand, argue that Wal-Mart's strong corporate culture guides decisions. Justice Scalia also noted that Wal-Mart has a written policy against sex discrimination and wondered if that had no value. Justice Roberts added to this line of questioning and doubted whether plaintiffs' examples of discrimination can establish a common policy of discrimination or whether such examples are just a few "bad apples." Rule 23(b)(2) monetary remedy availability. Justice Sotomayor briefly questioned Mr. Boutrous about whether plaintiffs could be subdivided into a Rule 23(b)(2) class and Rule 23(b)(3) class — where damages may be awarded but certification is much harder to satisfy. Mr. Boutrous responded that plaintiffs' claims would fail under either standard but that classes should be evaluated under Rule 23(b)(3) when any monetary relief is at stake. Mr. Boutrous maintained that the "incidental damages" test is contrary to the plain language of Rule 23(b)(2). Practical considerations. Justices Ginsburg and Sotomayor focused Mr. Sellers on the practical problems of certifying such a massive class. Justice Ginsburg questioned how a judge can possibly calculate back pay for hundreds of thousands of employees. Mr. Sellers answered that plaintiffs have developed a reliable formula based on Wal-Mart's database to evaluate monetary damages. Justice Sotomayor was skeptical of such a statistical model because such a model would prevent defendants from having an opportunity to defend themselves. In his rebuttal, Mr. Boutrous emphasized Justice Sotomayor's concern. He reiterated that the district court below had found that it would be "impossible" to hold individual hearings and that individual hearings are necessary to comport with due process requirements. Thus, Mr. Boutrous argued, a trial would inevitably violate Wal-Mart's constitutional rights. While both Mr. Boutrous and Mr. Sellers faced tough questioning from the justices, Mr. Sellers failed to give the Court a satisfactory answer to the core question: What was Wal-Mart's uniform discriminatory policy applicable to every single store in the country that would make this case suitable for class-wide treatment? After all, it is only when there is sufficient "commonality" among the plaintiffs' claims that a class action is ever proper; otherwise, the action will devolve into a series of mini-trials to determine whether each individual plaintiff faced unlawful discrimination. The justices' questions emphasized the plaintiffs' logical quandary in simultaneously arguing that Wal-Mart managers had "no guidance whatsoever" but were influenced by "a very strong corporate culture." This line of questioning — coupled with the fact that the Court specifically asked the parties to address this question when it granted certiorari — suggests that a majority of the Court is deeply troubled with the Ninth Circuit's application of Rule 23(a).

Page 3 of 3

Based on the oral argument, it seems likely the Supreme Court will modify the Ninth Circuit's decision in some way. Indeed, the questioning suggests that the Court may even be unanimous that the Ninth Circuit's decision went too far. Where the Supreme Court may fracture, however, is in articulating the correct rule to govern future class actions. Some Justices appear willing to fundamentally reformulate the test for Rule 23(a); others are likely to take a more incrementalist approach. It also remains to be seen whether the Court resolves the case on the basis of Rule 23(a) or Rule 23(b)(2), or both. The Supreme Court will likely issue its decision by June 2011.

Contacts

Catherine E. Stetson Partner, Hogan Lovells US LLP cate.stetson@hoganlovells.com +1 202 637 5491

Craig Hoover Partner, Hogan Lovells US LLP craig.hoover@hoganlovells.com +1 202 637 5694

Barbara M. Roth Partner, Hogan Lovells US LLP barbara.roth@hoganlovells.com +1 212 918 3595

Visit us at www.hoganlovells.com

Note "Hogan Lovells" or the "firm" refers to the international legal practice comprising Hogan Lovells International LLP, Hogan Lovells US LLP, Hogan Lovells Worldwide Group (a Swiss Verein), and their affiliated businesses, each of which is a separate legal entity. Hogan Lovells International LLP is a limited liability partnership registered in England and Wales with registered number OC323639. Registered office and principal place of business: Atlantic House, Holborn Viaduct, London EC1A 2FG. Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia with offices at 555 13th Street, NW, Washington, DC 20004, USA.

Disclaimer This publication is for information only. It is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The word "partner" is used to refer to a member of Hogan Lovells International LLP or a partner of Hogan Lovells US LLP, or an employee or consultant with equivalent standing and qualifications, and to a partner, member, employee or consultant in any of their affiliated businesses who has equivalent standing. Rankings and quotes from legal directories and other sources may refer to the former firms of Hogan & Hartson LLP and Lovells LLP. Where case studies are included, results achieved do not guarantee similar outcomes for other clients. New York State Notice: Attorney Advertising.

WSGR ALERTAPRIL 2011

USPTO ANNOUNCES “TRACK ONE,” A PRIORITIZEDEXAMINATION OF PATENT APPLICATIONS

The U.S. Patent and Trademark Office(USPTO) recently announced a “Track One”prioritized patent-examination initiativebeginning on May 4, 2011. “Track One” willpermit applicants to expedite the examinationof their patent applications. For a $4,000 fee,applications will be placed on the examiner’sspecial docket throughout their entire courseof prosecution with the goal of reaching afinal disposition in 12 months. “Finaldisposition” means that the application isallowed, abandoned, or made subject to afinal rejection, or the applicant files a noticeof appeal. There is no guarantee that a patent will issue as a result of the expeditedexamination.

The Track One program is limited to 10,000applications through the end of the fiscal year(September 30, 2011). New or continuingapplications (e.g., continuations or divisionals)are eligible for the program if they are filedon or after the effective implementation date.An application filed as a continuation orcontinuation-in-part application from a PatentCooperation Treaty (PCT) internationalapplication is also eligible.

Qualification Criteria:

• Application must be filed on or afterMay 4, 2011, using the USPTO’s

electronic filing system with a requestfor prioritized examination

• Application must be “complete” (e.g.,filed with an oath or declaration and allfees)

• Application may contain no more thanfour independent and thirty total claimswith no multiple dependent claims

• A $4,000 fee must be paid in addition to the normal filing fees; if it is acontinuation or divisional application,there is no credit for prior fees paid

Applications are eligible for Track Oneexamination if they are filed as a utility orplant application. Applications deemedineligible for the program include PCTinternational applications (including national-stage applications filed from a PCT); design,reissue, re-exam, or provisional applications;or requests for continued examination (RCEs).

For more information on the Track Oneinitiative and other USPTO acceleratedpatent-examination programs, please contactPeter Eng, Jeff Guise, Mike Hostetler, VernNorviel, Peter Munson, Karen Wong, EstherKepplinger, Lou Lieto, or another member ofthe firm’s patent and innovation strategiespractice.

Austin hong kong new York pAlo Alto sAn Diego sAn FrAncisco seAttle shAnghAi wAshington, D.c.

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