Category: International Law

8th Annual FCPA & Anti-Corruption Compliance Conference

The National Law Review is pleased to bring you information about the upcoming 8th FCPA & Anti-Corruption Compliance Conference:

8th FCPA and Anti-Corruption Compliance Conference
Identifying Changes to the Global Anti-Corruption Compliance Landscape to Maintain and Upgrade Your Existing Compliance Program

Event Date: 12-14 Jun 2012
Location: Washington, DC, USA

Beyond dealing with the FCPA and UK Bribery Act, there are upcoming changes to global Anti-Compliance initiatives being enacted by other major countries. It is imperative that organizations are made aware of these new rules and regulations to be able to meld them all into their organization’s anti-corruption compliance program. Maintaining a robust global compliance program along with performing proper and detailed 3rd party due diligence is of the upmost importance.

Marcus Evans invites you to attend our 8th Annual Anti-Corruption & FCPA Conference. Hear from leading executives within various industries on how to identify new areas of concern when dealing with bribery or working within a company to update an anti-corruption compliance program.

Attending this event will allow you to learn how to mitigate the effects of any possible instances of corruption and bribery both at home and abroad. Discuss solutions and best practices that companies have found when dealing with their anti-corruption compliance programs. This conference will not only review the newest enforcement cases, but also highlight practical solutions to problems dealing with FCPA and global anti-corruption measures.

Attending this conference will allow you to:

-Overcome the issues in dealing and conducting an internal investigation with Dell
-Identify anti-corruption liability concerns for US companies when engaging in Joint Ventures and Mergers and Acquisitions with Crane Co.
-Perform anti-corruption audits to better identify gaps in the compliance program with SojitzCorporation of America
-Promote a culture of ethics within an organization to combat non-compliance with Morgan Stanley
-Assess the continued challenges in conducting a 3rd party due diligence program with Parker Drilling

The marcus evans 8th Annual Anti-Corruption & FCPA Conference is a highly intensive, content-driven event that includes, workshops, presentations and panel discussions, over three days. This conference aims to bring together heads, VP’s, directors, chief compliance officers, and in-house counsel in order to provide an intimate atmosphere for both delegates and speakers.

This is not a trade show; our 8th Annual Anti-Corruption & FCPA Conference is targeted at a focused group of senior level executives to maintain an intimate atmosphere for the delegates and speakers. Since we are not a vendor driven conference, the higher level focus allows delegates to network with their industry peers.

UK Court Decision on Objective Justification for Age Discrimination Claims

Long awaited judgment from the Court of Appeal focuses on the merits of the ‘cost-alone’ argument.

The UK Court of Appeal released the much anticipated decision in Woodcock v. Cumbria Primary Care Trust. The decision centred on objective justification. Unlike other forms of discrimination in the UK, direct age discrimination can be objectively justified.

The objective justification test has two key elements: (i) does the employer have a legitimate aim and (ii) are the means chosen a proportionate way of achieving that aim, bearing in mind the discrimination to which it gives rise?

Whilst various factors can be used to justify age discrimination, the status quo position is that ‘cost alone’ cannot be used to justify otherwise discriminatory conduct and that more is required. This has become known as the ‘cost-plus’approach. ‘Cost’ is anything that has a purely financial consideration, i.e. the motivation is purely to save costs.

The Court of Appeal in Woodcock looked at the possibility of an employer justifying discrimination on a ‘cost-alone’ basis.

Background

Mr Woodcock’s employer (the Trust) was going through a reorganisation which would result in the reduction of chief executives required in the Trust. He was made aware that his role was ‘at risk of redundancy’ in early 2006 and he therefore applied for one of the remaining chief executive roles left in the new structure. Following a selection process, Mr Woodcock was informed in July 2006 that he was not successful in his application. He then entered into informal discussions about finding alternative employment in the Trust, although no formal consultation began.

In 2007, the Trust realised that Mr Woodcock would receive a significant pension windfall if he were still employed by the Trust on his 50th birthday. The windfall amounted to approximately £500,000. Given this potential windfall, the Trust elected to give Mr Woodcock notice of termination on the grounds of redundancy before entering into a consultation process during Mr Woodcock’s 12-month notice period. No suitable alternative roles were found and Mr Woodcock’s employment terminated in May 2007. He received his contractual redundancy pay of £220,000 (well above the cap for unfair dismissal of approximately £70,000).

Mr Woodcock was clearly discriminated against on the grounds of age. He received his dismissal notice prior to consultation because of the pension windfall he would have received at his attainment of age 50. If he had been a year younger, a consultation process would have been followed first. In order to follow a fair process in the UK, an employer should consult with an employee before deciding whether he or she is redundant.

Age Discrimination Justified?

At first glance, it is hard to see how this case turns on anything other than the Trust’s financial considerations.

The lower courts, however, found that the discriminatory treatment was objectively justified using the ‘cost-plus’ approach—the ‘plus’ being the genuine redundancy situation and avoiding the potential windfall.

Although possible to pigeonhole these facts into the ‘cost-plus’ test, the lower courts agreed that it was slightly artificial. One of the questions the Court of Appeal considered was whether age discrimination could be objectively justified on a ‘cost-alone’ basis.

Court of Appeal Decision

Although the Court of Appeal agreed that the current ‘cost-plus’ approach results in a degree of artificiality, it accepted that the current guidance from the European Court of Justice is clear, i.e. an employer cannot justify discriminatory treatment ‘solely’ because of cost.

The Court of Appeal, however, agreed with the lower courts and held that the age discrimination in this case was objectively justified on a ‘cost-plus’ analysis because (i) the dismissal notice was served with the aim of giving effect to the Trust’s genuine decision to terminate Mr Woodcock’s employment on the grounds of his redundancy and (ii) it was a legitimate part of that aim for the Trust to ensure that, in giving effect to it, the dismissal also saved the Trust the potential pension fund windfall.

Conclusion

It appears as though the ‘cost-plus’ approach is here to stay. The good news is that the courts appear able to find their way around the problem of having to follow the ‘cost-plus’ approach in most cases.

Despite the courts’ current flexibility, employers should remain hesitant to commit to a ‘cost-alone’ approach and should continue to look for the ‘further factor’.

Copyright © 2012 by Morgan, Lewis & Bockius LLP

ICC Institute Masterclass for Arbitrators

The National Law Review is pleased to bring you information about the upcoming ICC Conference  Masterclass Arbitrators:

 

 

 

Join us for an intensive 2 1/2 day training for professionals interested in working as international arbitrators!

June 4-6, 2012 at ICC Headquarters in Paris.

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute,

on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

 

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.

ICC Conference Cross-Border Sales – April 19, 2012

The National Law Review is pleased to bring you information about the upcoming ICC Conference Cross-Border Sales in London April 19, 2012:

What is the Best Legal Framework for Business-to-Business Contracts?

Thursday, 19 April 2012
London, United Kingdom

Objective

The contract of sale is certainly the most commonly used agreement in international commerce. When drafting a sales contract or general conditions of sale (or purchase) to be used in cross border trade, it is essential to choose the legal framework (applicable law) within which the agreement is to be placed.

Choosing one solution instead of another may have very important effects on the rights and obligations of the parties. Parties therefore need to have the information which is necessary in order to make the best possible choice between the various alternatives.

The speakers will examine and discuss on one side the project of a Common European Sales Law, which has been recently proposed by the European Commission, and on the other side the CISG (Vienna Sales Convention), which is the law applicable to cross-border sales in most countries of the world.

Members of the ICC task force that has been revising the ICC Model International Sales Contract will also take the opportunityto discuss their approach and present issues that have been the subject of relevant discussion.

Who should attend?

Legal directors and corporate counsel from companies involved in international trade, practising lawyers, legal practitioners advising international trading companies, business people involved in international trade and dispute resolution

8th Annual FCPA & Anti-Corruption Compliance Conference

The National Law Review is pleased to bring you information about the upcoming 8th FCPA & Anti-Corruption Compliance Conference:

8th FCPA and Anti-Corruption Compliance Conference
Identifying Changes to the Global Anti-Corruption Compliance Landscape to Maintain and Upgrade Your Existing Compliance Program

Event Date: 12-14 Jun 2012
Location: Washington, DC, USA

Beyond dealing with the FCPA and UK Bribery Act, there are upcoming changes to global Anti-Compliance initiatives being enacted by other major countries. It is imperative that organizations are made aware of these new rules and regulations to be able to meld them all into their organization’s anti-corruption compliance program. Maintaining a robust global compliance program along with performing proper and detailed 3rd party due diligence is of the upmost importance.

Marcus Evans invites you to attend our 8th Annual Anti-Corruption & FCPA Conference. Hear from leading executives within various industries on how to identify new areas of concern when dealing with bribery or working within a company to update an anti-corruption compliance program.

Attending this event will allow you to learn how to mitigate the effects of any possible instances of corruption and bribery both at home and abroad. Discuss solutions and best practices that companies have found when dealing with their anti-corruption compliance programs. This conference will not only review the newest enforcement cases, but also highlight practical solutions to problems dealing with FCPA and global anti-corruption measures.

Attending this conference will allow you to:

-Overcome the issues in dealing and conducting an internal investigation with Dell
-Identify anti-corruption liability concerns for US companies when engaging in Joint Ventures and Mergers and Acquisitions with Crane Co.
-Perform anti-corruption audits to better identify gaps in the compliance program with SojitzCorporation of America
-Promote a culture of ethics within an organization to combat non-compliance with Morgan Stanley
-Assess the continued challenges in conducting a 3rd party due diligence program with Parker Drilling

The marcus evans 8th Annual Anti-Corruption & FCPA Conference is a highly intensive, content-driven event that includes, workshops, presentations and panel discussions, over three days. This conference aims to bring together heads, VP’s, directors, chief compliance officers, and in-house counsel in order to provide an intimate atmosphere for both delegates and speakers.

This is not a trade show; our 8th Annual Anti-Corruption & FCPA Conference is targeted at a focused group of senior level executives to maintain an intimate atmosphere for the delegates and speakers. Since we are not a vendor driven conference, the higher level focus allows delegates to network with their industry peers.

European Commission Considers Taking Over Cartel Investigations to Prevent Exploitation of German Law Loophole

Recently The National Law Review published an article by Martina Maier and Philipp Werner of McDermott Will & Emery regarding the European Commissions Investigation of a German Law Loophole:

Under German law, companies may escape cartel fines by undertaking an internal restructuring. The German competition authority has indicated a willingness to reallocate such cases to the European Commission, which can impose a fine on the corporate group regardless of any internal restructuring. Commission officials speaking at a conference have suggested recently that the Commission would be willing to take over cartel cases from EU Member States, even at a late stage in the proceedings, in order to fine undertakings for their anti-competitive behaviour.

Background

The German competition authority can impose fines on undertakings that have violated European competition law by forming a cartel. Under German law, if the undertaking ceases to exist, for example by merging with another undertaking, only in exceptional circumstances can the legal successors be held liable for the violation of Article 101 TFEU. For the legal successor to bear any liability for the anti-trust infringement, the restructured company must be identical, or nearly identical, to the company that committed the infringement, such as in the case of a mere change of the company’s name or its legal structure.

This has created a loophole that can be exploited by internally restructuring the legal entity that has committed the infringement so it ceases to exist and no other legal entity within the group is (nearly) identical. Companies may thus escape cartel fines by, for example, redistributing their assets to affiliated companies within the corporate group, or by merging with a sister company, even if the original company’s assets remain within the same group and under the control of the same ultimate parent company. This loophole has been confirmed explicitly by the German Supreme Court. Although Germany is currently amending its competition legislation, it is not yet clear whether the proposed changes will be sufficient to solve the problem.

In the European Union, due to the broad interpretation of the concept of an “undertaking”, as well as the possibility of holding parent companies jointly and severally liable, the European Commission has broad discretion when it comes to imposing fines on parent companies, so an internal restructuring does not present a solution for infringing companies.

Reallocation of Cases

According to the Commission Notice on cooperation within the Network of Competition Authorities, reallocation of cases should normally take place within a period of two months, starting from the date of the first information sent by the relevant national competition authority to the European Competition Network. In general, the competition authority that is dealing with a case at the end of the two month period should continue to handle the case until completion of the proceedings. Reallocation of a case after the two month period should only occur where the facts known about the case change materially during the course of the proceedings. After the two month period, the Commission should in principle initiate proceedings only in exceptional cases.

If the Commission initiates proceedings, the relevant authorities of the Member States are relived from their competence to apply Article 101 TFEU and Article 102 TFEU. This means, once the Commission has opened proceedings, national competition authorities cannot act under the same legal basis against the same agreement or practices by the same undertaking on the same relevant geographic and product market.

Despite these procedural concerns, the Commission seems to be willing to accept a late reallocation of cases in cooperation with the German competition authority. It is not clear how this principle could or will be extended to other Member States and whether it could be applied under different circumstances where a Member State is prevented from fining a cartelist due to the application of a national law.

© 2012 McDermott Will & Emery

ICC Conference Cross-Border Sales – April 19, 2012

The National Law Review is pleased to bring you information about the upcoming ICC Conference Cross-Border Sales in London April 19, 2012:

What is the Best Legal Framework for Business-to-Business Contracts?

Thursday, 19 April 2012
London, United Kingdom

Objective

The contract of sale is certainly the most commonly used agreement in international commerce. When drafting a sales contract or general conditions of sale (or purchase) to be used in cross border trade, it is essential to choose the legal framework (applicable law) within which the agreement is to be placed.

Choosing one solution instead of another may have very important effects on the rights and obligations of the parties. Parties therefore need to have the information which is necessary in order to make the best possible choice between the various alternatives.

The speakers will examine and discuss on one side the project of a Common European Sales Law, which has been recently proposed by the European Commission, and on the other side the CISG (Vienna Sales Convention), which is the law applicable to cross-border sales in most countries of the world.

Members of the ICC task force that has been revising the ICC Model International Sales Contract will also take the opportunityto discuss their approach and present issues that have been the subject of relevant discussion.

Who should attend?

Legal directors and corporate counsel from companies involved in international trade, practising lawyers, legal practitioners advising international trading companies, business people involved in international trade and dispute resolution

8th Annual FCPA & Anti-Corruption Compliance Conference

The National Law Review is pleased to bring you information about the upcoming 8th FCPA & Anti-Corruption Compliance Conference:

8th FCPA and Anti-Corruption Compliance Conference
Identifying Changes to the Global Anti-Corruption Compliance Landscape to Maintain and Upgrade Your Existing Compliance Program

Event Date: 12-14 Jun 2012
Location: Washington, DC, USA

Beyond dealing with the FCPA and UK Bribery Act, there are upcoming changes to global Anti-Compliance initiatives being enacted by other major countries. It is imperative that organizations are made aware of these new rules and regulations to be able to meld them all into their organization’s anti-corruption compliance program. Maintaining a robust global compliance program along with performing proper and detailed 3rd party due diligence is of the upmost importance.

Marcus Evans invites you to attend our 8th Annual Anti-Corruption & FCPA Conference. Hear from leading executives within various industries on how to identify new areas of concern when dealing with bribery or working within a company to update an anti-corruption compliance program.

Attending this event will allow you to learn how to mitigate the effects of any possible instances of corruption and bribery both at home and abroad. Discuss solutions and best practices that companies have found when dealing with their anti-corruption compliance programs. This conference will not only review the newest enforcement cases, but also highlight practical solutions to problems dealing with FCPA and global anti-corruption measures.

Attending this conference will allow you to:

-Overcome the issues in dealing and conducting an internal investigation with Dell
-Identify anti-corruption liability concerns for US companies when engaging in Joint Ventures and Mergers and Acquisitions with Crane Co.
-Perform anti-corruption audits to better identify gaps in the compliance program with SojitzCorporation of America
-Promote a culture of ethics within an organization to combat non-compliance with Morgan Stanley
-Assess the continued challenges in conducting a 3rd party due diligence program with Parker Drilling

The marcus evans 8th Annual Anti-Corruption & FCPA Conference is a highly intensive, content-driven event that includes, workshops, presentations and panel discussions, over three days. This conference aims to bring together heads, VP’s, directors, chief compliance officers, and in-house counsel in order to provide an intimate atmosphere for both delegates and speakers.

This is not a trade show; our 8th Annual Anti-Corruption & FCPA Conference is targeted at a focused group of senior level executives to maintain an intimate atmosphere for the delegates and speakers. Since we are not a vendor driven conference, the higher level focus allows delegates to network with their industry peers.

ICC Conference Cross-Border Sales – April 19, 2012

The National Law Review is pleased to bring you information about the upcoming ICC Conference Cross-Border Sales in London April 19, 2012:

What is the Best Legal Framework for Business-to-Business Contracts?

Thursday, 19 April 2012
London, United Kingdom

Objective

The contract of sale is certainly the most commonly used agreement in international commerce. When drafting a sales contract or general conditions of sale (or purchase) to be used in cross border trade, it is essential to choose the legal framework (applicable law) within which the agreement is to be placed.

Choosing one solution instead of another may have very important effects on the rights and obligations of the parties. Parties therefore need to have the information which is necessary in order to make the best possible choice between the various alternatives.

The speakers will examine and discuss on one side the project of a Common European Sales Law, which has been recently proposed by the European Commission, and on the other side the CISG (Vienna Sales Convention), which is the law applicable to cross-border sales in most countries of the world.

Members of the ICC task force that has been revising the ICC Model International Sales Contract will also take the opportunityto discuss their approach and present issues that have been the subject of relevant discussion.

Who should attend?

Legal directors and corporate counsel from companies involved in international trade, practising lawyers, legal practitioners advising international trading companies, business people involved in international trade and dispute resolution