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Compliance programmes are firmly back in the global spotlight when it comes to cartel enforcement in 2019.

In Europe, the Italian competition authority recently published guidance outlining what it perceives to be the key elements of an effective antitrust compliance programme and formalising a process for granting a reduction in cartel fines where the right type of programme is in place.  In South America, the Chilean competition tribunal reduced a fine in February 2019 to reflect efforts that the cartel participant had made to implement such a programme – the first time it had awarded a reduction on these grounds.  And, at the supranational level, the International Competition Network working group on cartels continues to focus on the issue of compliance, most recently in December 2018.

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Introductory Chapter  

Product Liability: An evolving legal landscape

In a world of driverless cars, electronic devices with speech and facial recognition and household appliances which can be activated remotely from a mobile phone, whether the current (decades old) product liability laws are still fit for purpose is a current hot topic. Of course, longstanding dangers like overheating batteries, excess levels of chemicals and small parts in children’s’ toys still remain a risk, even in this modern world. But new risks and potential hazards are emerging in line with technological developments, and therefore it is not a surprise that the legal framework underpinning product liability has also begun to evolve.

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By Sylvie Rodrigue Ad. E. and Grant Worden

In Canada, the sale of pharmaceuticals and medical devices is regulated by Health Canada under the Food and Drug Act and Regulations and related legislation (Canadian Food Inspection Agency Act, SC 1997 c.6; Consumer Packaging and Labelling Act, RSC 1985, c. C-38; Consumer Packaging and Labelling Regulations, C.R.C., c. 417; Natural Health Products Regulations, SOR/2003-196; Cosmetic Regulations, C.R.C., c. 869; Medical Devices Regulations, SOR/98-282). Product liability is governed by common law principles in all provinces except Québec, where it is governed by civil law, under the Civil Code of Québec, and in certain circumstances the Québec Consumer Protection Act. Product liability claims are typically framed as actions in tort in common law provinces or extra-contractual liability in Québec, though they may also be framed as claims in contract. Typical tort/extra-contractual liability-based claims include negligent design, negligent manufacture, and breach of a duty to warn. Breach of warranty is the most common claim based in contract.

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Over the last three decades, government antitrust enforcers and private plaintiffs in the United States have increasingly sought to apply U.S. antitrust laws to conduct by foreign businesses that is deemed to have effects on the U.S. economy.  Many of these foreign businesses have been located in Asia:  since the 1990s there have been waves of U.S. criminal prosecutions and civil cases alleging anticompetitive conspiracies between Japanese, Korean, and Taiwanese sellers and manufacturers.  For most of this time, however, companies in mainland China—despite being the largest exporters of goods to the United States, first in Asia and now in the entire world—have rarely been targeted for U.S. antitrust enforcement.

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Introduction

Global M&A, including cross-border M&A, had a strong 2018.  Hiding below the surface of the data, however, are a number of disturbing trends that do not bode well for continuing strength in cross-border M&A.  Perhaps the most significant trend is what has been referred to by some commentators as the “weaponization of global M&A”—the use by national governments of the tools of regulation of M&A to advance, explicitly or implicitly, domestic political and trade agendas.  Notwithstanding the strong performance of cross-border M&A in 2018, it still remains below its peak in 2007—back before the global financial crisis, before populist and nativist political tendencies rose in many developed economies and when faith in the social benefits of free markets and free trade was stronger.  From the perspective of global M&A practitioners, we should hope that attitudes toward cross-border M&A revert to those prevailing in the mid-2000’s and hold back against overreaching regulatory trends. [Continue Reading]

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The rule of law, an independent judiciary and a trusted common law system, as well as a wealth of local and international legal expertise, ensure a comprehensive range of world-class legal services in Hong Kong, the best place in Asia for people and businesses to connect and excel.

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There are a number of occasions when a company operating a share plan will need to exercise its discretion.  On grant, a decision needs to be made as to who will receive an award, how many shares will be subject to it and what other conditions (such as those relating to vesting and performance) will apply.  Plan rules often give the grantor a discretion as to how to treat awards held by leavers.  This might include deciding whether they are a “good” or “bad” leaver, whether and to what extent their award will vest and the point at which they will be able to exercise their rights.  The potential for having rights taken away at the apparent whim of the board could reduce the incentive value of share plan participation.  To redress this, it is common for plan rules to require that any discretion is exercised “fairly and reasonably” (indeed, certain UK tax-advantaged share plans will be expected to contain this qualification).  However, some plans are drafted to give the board an “absolute” discretion in certain circumstances.  Irrespective of the impact of such wording on employee morale, recent decisions in the English courts demonstrate that anybody exercising such a discretion needs to tread carefully. [Continue Reading]

Can retail help lead the renewables ‘quiet revolution’?

The National Infrastructure Commission was established in 2015 to provide independent advice on the UK’s long-term infrastructure needs. This year it has published the National Infrastructure Assessment (NIA) 2018, one of the recommendations being that at least 50% of energy in the UK should be generated by renewable sources by 2030. The report states that: [Continue Reading]