Whose money is it? Financial disclosure and judicial assistance in changing times

Global Outlook: Disputes | 02 October 2018

For a number of decades, The Bahamas has been one of a number of select jurisdictions utilised by high net worth individuals to manage their wealth. In prior times, terms such as tax evasion, and banking secrecy were, in some cases, attached to such practices. As such, these terms became increasingly stigmatic. More euphemistic terms now prevail, such as wealth planning and banking confidentiality. Regardless of the terms, the basic principle which arises, generally at common law and which is enshrined in our local constitution and banking legislation, is that individuals have a right to privacy in relation to their property and banking affairs. While this right to banking confidentiality was once virtually absolute, leading countless numbers of foreign persons to set up bank accounts, form international business companies and trust instruments in The Bahamas, the world has evolved in ways which now challenge the sustainability of the concept. While there have long been mechanisms to obtain banking information such as: letters of request pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 2000, various injunctive relief obtained by a plaintiff, and Norwich Pharmacal orders; an interesting challenge has evolved in the context of mutual legal assistance treaties (MLAT) and the incorporation into local law of various multinational treaties and conventions (convention legislation). [Continue Reading]

A general view of bankruptcy in Mexico

Global Outlook: Disputes | 02 October 2018

When companies face financial difficulties in Mexico, our legislation provides a formal procedure known as concurso mercantil (insolvency) to restructure its finances and provide legal security to their creditors. This procedure is divided into two phases: i) conciliation and ii) bankruptcy or liquidation. The purpose of the conciliation phase is to achieve the continuation of the company, that is, to allow the company to restructure through an agreement with its creditors; whereas the purpose of the liquidation phase is to sell all the assets to try to pay all the recognised creditors, once the conciliation phase failed. [Continue Reading]

Arbitration in the Kingdom of Saudi Arabia

Global Outlook: Disputes | 02 October 2018

The arbitration landscape has changed significantly in the Kingdom of Saudi Arabia (KSA) in recent years. In this note, we will explain two important developments that have precipitated this change, namely, a new arbitration law and a Saudi centre for arbitration. [Continue Reading]

Litigation in Norway: traps and possibilities

Global Outlook: Disputes | 02 October 2018

There are many differences between UK and Norwegian litigation. In this article, we will give a brief outline of some of the possibilities in Norwegian litigation, as well as some issues that one needs to avoid. Since the language before the court is Norwegian, there is a need to seek out Norwegian counsel, but this article can in any case give some initial input as to what to consider when a dispute has connections to Norway. [Continue Reading]

Emerging need for whistleblower programmes

Global Outlook: Disputes | 02 October 2018

As reported in KPMG’s 2016 Global Profiles of the Fraudster, more than half of the frauds were uncovered by whistleblowers and tip-offs. So to more effectively root out corporate malfeasance and corruption, some countries have promulgated laws to make internal reporting channels in both the public and private sectors mandatory. The laws include the Whistleblower Protection Act (1989) and the Sarbanes-Oxley Act (2002) of the United States, the Public Interest Disclosure Act (1998) of the United Kingdom, and the Public Interest Disclosure Protection Act (2004) of Japan. [Continue Reading]

Selection vs sovereignty: your choice of jurisdiction clauses in Qatar

Global Outlook: Disputes | 02 October 2018

You are nearing the end of the discussions for concluding a contract – the obligations and rights are defined, the terms are stipulated and you are making final decisions as to how your contract will be governed. This is vital, for contracting parties are fully aware that deciding on what law will govern the agreement and which court will have the jurisdiction to apply such chosen law is essentially a decision on how you can claim your rights if a dispute arises. Freedom of contract tells you that the choice is yours – so long as it expressly agreed. [Continue Reading]

Disclosure in civil litigation: All change please, all change!

Disputes | 02 October 2018

From 1 January 2019, a mandatory pilot scheme will operate in the Business and Property Courts across England and Wales, ushering in a new era of disclosure management in civil litigation. Walker Morris’ head of commercial dispute resolution, Gwendoline Davies, and senior associate and professional support lawyer, Amanda Kent, consider the changes and what they mean for in-house lawyers. [Continue Reading]