Surrogacy in India: a dilemma

India | 01 February 2010

A search for the terms ‘surrogacy’ and ‘India’ on Google would reveal that surrogacy tourism in India is on the rise. The trend is attributed to the fact that:

  • the cost of a surrogacy arrangement in India is much lower than other countries;
  • the low income levels of a vast majority of the population mean that it is comparatively easier to find somebody willing to act as a surrogate; and
  • India does not have a legal regime governing the rights of the surrogate (a cause for major concern).

[Continue Reading]

UK immigration law and procedure updates

Human resources | 01 February 2010

This article will look at several developments within UK immigration law and procedures that have been implemented over the past two months. These include recommendations for changes to Tier 1 of the Points-Based System (PBS) by the Migration Advisory Committee (MAC), changes to requirements under Tier 2 of the PBS, both for sponsors and sponsored migrants, as well as matters relating to citizenship and Judicial Review. [Continue Reading]

Will it be a Happy New Year for your company?

Crime, fraud and licensing | 01 February 2010

The year-end audit process can bring headaches for in-house lawyers. With the financial year for most companies ending on 31 December, the first few months of the New Year bring the deepest scrutiny by external auditors of a company’s transactions and dealings, in addition to year-end procedures being run by internal audit. This increased scrutiny can lead to the discovery of evidence pointing to improper or even illegal conduct by employees or management during the financial year. [Continue Reading]

New Commission

Corporate and commercial | 01 February 2010

On Friday 27 November 2009 the new European Commission, which will begin its mandate early in 2010, was announced by Commission President José Barroso. This announcement followed a week after the appointment of Herman Van Rompuy and Catherine Ashton as the President of the European Council and the High Representative of the Union for Foreign Affairs and Security Policy respectively, the two new roles created by the Lisbon Treaty, which entered into force on 1 December 2009. [Continue Reading]

Ombudsman’s decision: Intel

Corporate and commercial | 01 February 2010

The European Ombudsman, Nikiforos Diamandouros, has published a decision upholding a complaint against the European Commission by Intel Corporation (Intel). The complaint relates to the Commission’s handling of its investigation into Intel’s business activities and, in particular, its record of a meeting with a senior executive from Dell Inc (Dell), one of Intel’s biggest customers. The Ombudsman has found that the Commission was guilty of maladministration in its handling of the investigation. [Continue Reading]

Commission turns up the heat on cartels

Corporate and commercial | 01 February 2010

On 11 November 2009, the European Commission imposed fines totalling over €173m on companies involved in a cartel in the market for heat stabilisers (Commission decision of 11 November 2009 in case 38.589). This brings the total value of fines imposed by the Commission in 2009 for cartel activity to over €1.6bn. The Commission found that 24 companies from ten corporate groups had been involved in price fixing, allocation of markets and customers, and the exchange of commercially sensitive information. [Continue Reading]

REACH and CLP: chemicals regulation issues for 2010

Projects, energy and natural resources | 01 February 2010

The REACH (Registration, Evaluation, authorisation and restriction of chemical substances) Chemicals Regulation 1907/2006 (REACH) entered into force across the EU on 1 June 2007. UK enforcement of REACH is led by the Health and Safety Executive (HSE). The main purpose of REACH is to ensure a high level of protection of human health and the environment. It places duties on manufacturers, importers and downstream users of substances, preparations or mixtures and articles, when they are placed on the market. [Continue Reading]

Development of PPP legislation in CEE and SEE countries

Eastern Europe | 01 February 2010

The current financial crisis has undoubtedly dampened the initial enthusiasm over public-private partnerships (PPP). However, ongoing developments in relevant legislative frameworks, particularly those in central and eastern European (CEE) and south-east European (SEE) countries, suggest that a belief in PPP projects as an alternative to traditional public contracts still exists.

PPP PROJECTS AND THE IMPACTOF THE FINANCIAL CRISIS

PPP projects are joint initiatives between the public and private sectors in which the state chooses a private partner for the implementation of certain projects (usually relating to infrastructure). In most cases, the private partner will have to finance, design, construct and operate the infrastructure for a certain period (usually 20-30 years). Whereas some countries have separate laws for the implementation of PPP projects, the rules for selecting private partners are mainly regulated by concessions or public procurement law. PPP projects have a significant advantage for the state over traditional public works contracts in that the main risks involved with building and operating major infrastructure projects are shifted to a private partner. Most importantly, by placing the onus for funding the project on a private partner, the state reduces financing costs. However, private companies are finding it more and more difficult to raise money during the current financial crisis. Due to an increase in interest margins, project financing costs have risen to an extent that public financing is in many cases the cheaper alternative. Additionally, banks are currently reluctant to provide financing for the formerly standard 20-30 year period and prefer to offer shorter-term loans.

RECENT AMENDMENTS TO PPP AND CONCESSIONS LEGISLATION

It appears that the difficulties caused by the financial crisis are widely regarded as being only temporary and PPP projects are still considered to be the concept of the future. CEE and SEE countries, outside the EU in particular, continue to develop their legal frameworks for the implementation of PPP projects. Aside from financing issues, many smaller non-EU countries lack the requisite expertise to realise major infrastructure projects and therefore require the experience of a private partner such as an international construction company.

Albania

Recent amendments to Albanian concessions law, which came into force on 21 November 2009, have established a new concessions agency in the country. The agency will be responsible for ensuring proper adherence to concessions procedures in Albania and is able to impose fines on non-compliant contracting authorities. The agency will also deal with bidders’ complaints against contracting authorities’ decisions in concessions procedures. In this context, the newly introduced requirement that bidders pay an upfront deposit of 10% of bid security, which is only returned if the complaint is successful, has been criticised as an obstacle to legal protection.

Bosnia and Herzegovina

The legal framework of Bosnia and Herzegovina is highly fragmented and different rules apply on federal and state levels. Republika Srpska approved a new PPP law in May 2009 that differentiates between concessions and contracts financed by public funds (which are effectively traditional public contracts rather than PPP). Detailed regulations on the selection of private partners will be outlined in secondary legislation.

Croatia

Croatia’s legal framework for PPP projects underwent a major revision in 2008/09 with the implementation of new public procurement, concessions and PPP laws. The process of selecting a private partner has been brought further in line with EC legislation and is more stringently regulated. Croatia’s PPP legislation requires that relevant projects are approved by a newly established PPP agency. This agency will assess the project proposal with a view to harmonising PPP goals with the development strategy of affected industries, and will analyse the project value, structure and risk balance. The PPP agency will also approve relevant tender documents and concessions contracts.

Montenegro

Montenegro’s new concessions law came into force on 12 February 2009 and allows for the selection of private partners for large infrastructure projects without conducting a public tender where the project is of strategic importance to the country. Like Montenegro, many non-EU countries in the region have created legislation that allows for concessions and PPP projects to be awarded without the prior conduct of a public tender. Such initiatives often take the form of ‘unsolicited proposals’ in which a bidder is awarded a contract on the basis of its own proposal. Such procedures directly contradict EC laws requiring an open, transparent and competitive process, and countries seeking accession to the EU will have to adjust their legal framework in this respect.

Middle East Construction in 2009: an annus horribilis

UAE | 01 February 2010

Based in Dubai, Habib Al Mulla & Company has witnessed first hand the worst effects of the 2009 financial crisis. The Dubai construction market has suffered more than most and the number of construction cases through the Dubai International Arbitration Centre (DIAC) has tripled over the course of 2009. The launch of the DIFC LCIA Arbitration Centre (DIFC LCIA) could not have come at a better time although, inevitably, the take up of cases has been slow at the new centre. [Continue Reading]