CONTRACTUAL PERFORMANCE AND COVID-19

Wolters Kluwer and Wilmer Hale have joined forces to provide to provide a website which was published on 28 April and –

  • provides an in-depth comparative legal analysis of key civil and common law jurisdictions;
  • examines whether and under what circumstances COVID-19-related impediments may excuse contractual performance or lead to modification or termination;
  • addresses a wide variety of legal concepts, such as impossibility, impracticability, frustration of purpose force majeure, hardship or imprévision, or clausula rebus sic stantibus; and
  • will be updated over the coming months with additional developments and key jurisdictions.

The introduction paper which provides an in-depth comparative legal analysis of key civil and common law jurisdictions is freely available (you must provide contact details for access to a selection of reports).  It is said that the initial paper will be updated with additional analysis as further legal and factual developments occur, and with further jurisdictions being added.

http://www.kluwerlaw.com/covid-contracts/

 

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IVORY COAST PRESIDENTIAL HOPEFUL CONVICTED BEFORE ELECTIONS

On 28 April, BNN Bloomberg reported that an Ivory Coast court has sentenced presidential hopeful Guillaume Soro to 20 years in jail for embezzlement and money laundering, 6 months before the West African nation is scheduled to hold elections.  He faced charges relating to the purchase of a property in 2007, when he was prime minister.

https://www.bnnbloomberg.ca/ivory-coast-presidential-hopeful-soro-convicted-before-elections-1.1428170

 

 

 

 

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UK PROPOSALS TO GRANT POWERS TO NEW AGENCIES TO OBTAIN COMMUNICATIONS DATA FROM UK AND OVERSEAS SERVICE PROVIDERS

On 28 April, an article from Out-Law reported that draft regulations would add the Pensions Regulator, Insolvency Service, Civil Nuclear Constabulary, Environment Agency, , and the UK National Authority for Counter Eavesdropping to the list of authorities which can obtain communications data.  It points out that including the Insolvency Service would enable it to gather evidence relating, in particular, to cases of breach of director disqualification orders or fraudulent trading by directors.

https://www.pinsentmasons.com/out-law/news/uk-government-expansion-investigatory-powers

 

 

 

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FATF EXTENDS ITS ASSESSMENT AND FOLLOW-UP DEADLINES IN RESPONSE TO COVID-19

On 28 April, FATF announced that Covid-19 restrictions are making it impossible for assessed jurisdictions and assessors alike to conduct on-site visits and in-person meetings.  This situation has significantly impacted countries’ ability to actively participate in mutual evaluation and related follow-up processes.  The FATF Plenary has therefore agreed to temporarily postpone all remaining FATF mutual evaluations and follow-up deadlines.  It has also decided on a general pause in the review process for the list of high-risk jurisdictions subject to a call for action and jurisdictions subject to increased monitoring, by granting jurisdictions an additional four months for deadlines – FATF is not reviewing them in June. On the other hand, Mongolia and Iceland have requested that their deadlines not be extended and  so FATF will issue updated statements on them in June.

The revised evaluation/assessment schedule is at –

https://www.fatf-gafi.org/calendar/assessmentcalendar/?hf=10&b=0&r=%2Bf%2Ffatf_region_en%2Ffatf&s=asc(document_lastmodifieddate)&table=1

http://www.fatf-gafi.org/publications/fatfgeneral/documents/mer-postponement-covid-19.html

 

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ABU DHABI COMMERCIAL BANK PJSC CLOSES JERSEY BRANCH AFTER £475,000 FINE

On 28 April, This is Jersey reported that the Jersey branch of the bank is closing down its business and leaving the Island after being fined £475,000 for breaching the Proceeds of Crime (Jersey) Law in a case related to $1.2 million being withdrawn between 2013 and 2018.

https://jerseyeveningpost.com/news/2020/04/28/bank-closes-jersey-branch-after-475000-fine/

 

 

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ARAB MONETARY FUND LAUNCHES GUIDELINES ON DIGITAL ID AND E-KYC FOR THE ARAB REGION

On 28 April, Security World reported that the Arab Monetary Fund, AMF, has announced the publication on 27 April of the Digital Identity and e-KYC Guidelines for the Arab Region issued by the Arab Regional Fintech Working Group.  The article says that Bahrain and UAE appear to be the frontrunners in the implementation of an e-KYC model in the region. Based on the findings of a survey, a range of action items have been proposed to Arab Countries, and these are laid out in the article.

http://www.securitydocumentworld.com/article-details/i/16346/

 

 

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OTHER THINGS YOU MAY HAVE MISSED – APRIL 27

Panama Covid-19 update – 242 new cases today, 1 more than yesterday, and with the minister at the news conference saying that following the social distancing/self-isolation rules properly has caused the infection to increase to 1:1. The total of confirmed cases are now 6,021. The good news is that there have been only 2 more fatalities since yesterday (now a total of 167).  The bad news, on a personal front, is that some naughty insect has bitten me, and I think I have to see the doctor tomorrow – fortunately, there’s a private one nearby, so I don’t have to risk any crowded clinics…

27 April 2020

WHAT HAPPENS WHEN FORCE MAJEURE ENDS – OR CONTINUES FOR SO LONG THAT THE CONTRACT CANNOT BE PERFORMED AS INTENDED?

An article from Squire Patton Boggs on 9 April poses this question.  It says that few contracts make provision for what to do when force majeure ends and the contract can be performed again. It answers some important questions, such as what must be performed when force majeure ends.  It also says that, if force majeure continues to a point where performance would be radically different from that contemplated, the contract will be frustrated, and terminated, without recourse by either party.

https://www.squirepattonboggs.com/-/media/files/insights/publications/2020/04/when-force-majeure-ends-or-does-not/whenforcemajeureendsordoesnot.pdf

ENGLAND & WALES: CONSIDERATIONS FOR DIRECTORS WHEN A COMPANY IS IN FINANCIAL DIFFICULTY

Another article from Squire Patton Boggs on 22 April summarises the duties that directors of companies incorporated in England and Wales are subject to, and how those duties change when the company is insolvent or at risk of being insolvent. It also provides an overview of the personal risk to directors when the company is in financial difficulty.

https://www.restructuring-globalview.com/wp-content/uploads/sites/21/2020/04/38118-RI-Directors-Duties-England-Wales-Pitch-Handout-005.pdf

RECENT EC PARALLEL TRADE DECISIONS IDENTIFY THE TYPES OF CROSS-BORDER SALES RESTRICTIONS THAT HAVE ATTRACTED THE EUROPEAN COMMISSION’S ATTENTION

On 22 April, Linklaters produced an article, a Client Alert which discusses the string of recent parallel trade decisions (Nike, Guess, Sanrio, NBCUniversal and Ab InBev) and identifies the types of cross-border sales restrictions that attracted the Commission’s attention, and the main takeaways.  It says that given the Commission’s appetite to pursue parallel trade cases is not waning, businesses should take care when instituting measures that can have an effect on cross-border sales within their distribution networks in the EU.

https://www.linklaters.com/en/insights/blogs/linkingcompetition/2020/april/export-restrictions-are-back-in-the-spotlight-in-the-eu

UBS APPEAL IN $4.9 BILLION FRENCH TAX CASE DELAYED AMID VIRUS

On 27 April, KYC 360 reported that the appeal against a record €4.5 billion French fine for helping clients stash undeclared funds in offshore accounts has been postponed over concerns related to coronavirus pandemic, according to people familiar with the case. The Swiss lender was convicted in February 2019 of laundering customers’ undeclared funds, and dispatching bankers across the border to seek out new clients even though they lacked the paperwork to offer such services in France.

https://www.riskscreen.com/kyc360/news/ubs-appeal-in-4-9-billion-french-tax-case-delayed-amid-virus/

FORMER FBI AGENT CHARGED WITH POCKETING BRIBES FROM ORGANISED CRIME FIGURE

On 24 April, the Los Angeles Times reported that an organised crime figure paid an FBI agent $10,000 a month in exchange for sensitive law enforcement information, according to court documents.  He retired in January 2019, having worked at the FBI for 20 years, most recently in national security investigations for the San Francisco field office a month after agents served search warrants at his home and businesses.

https://www.latimes.com/california/story/2020-04-24/former-fbi-agent-charged-with-pocketing-bribes-from-organized-crime-figure

MALAYSIA: ASIA MEDIA FOUNDER SOUGHT BY SECURITIES COMMISSION OVER MONEY LAUNDERING OFFENCES

On 27 April, the Malay Mail reported that, in a statement the Commission said Wong Shee Kai, aka Ricky Wong, was wanted. This followed an arrest warrant issued against Wong in December for failing to appear before the Commission’s investigating officer.  Wong was the founder of Asia Media Group Sdn Bhd.

https://www.malaymail.com/news/malaysia/2020/04/27/asia-media-founder-sought-by-securities-commission-over-money-laundering-of/1860619

CHINA: LUCKIN COFFEE OFFICE RAIDED AS CHINA REGULATORS PROBE FRAUD AT STARBUCKS RIVAL

On 27 April, The Street reported that Luckin had said earlier this month that more than $300 million in sales may have been fabricated last year, triggering a plunge in shares and investigations in the US and China.

https://www.thestreet.com/investing/luckin-coffee-offices-raided-as-china-regulators-probe-fraud

US COURT THROWS OUT $1.5 BILLION ALLEGED HAITIAN CORRUPTION CASE AGAINST DIGICEL

On 27 April, the Irish Times reported that a judge in New York has dismissed the case taken by Haitian emigrants against Digicel and several other telecommunications and money transfer companies. The case also included the Haiti’s former president, Michel Martelly. The allegations had been that the companies had “colluded” with politicians in Haiti, including Mr Martelly, to “fraudulently” collect levies on Haitian telephone calls and money transfers that were supposed to be ring-fenced to pay for education. It involved a 2011 scheme to add government charges to all international phone calls and money transfers to and from Haiti.  A fee of $1.50 was automatically added to every money transfer, while an extra 5c per minute was added to every international call.  Digicel is the dominant player in the Haitian telecoms market.

https://www.irishtimes.com/business/technology/us-court-throws-out-1-5bn-alleged-corruption-case-against-digicel-1.4238429

US SUPREME COURT STRIKES DOWN “WILLFULNESS” REQUIREMENT FOR AN AWARD OF ILL-GOTTEN PROFITS IN TRADEMARK

On 27 April, an article from Payne & Fears reported that, on 23 April, the Court ruled that a party whose trademark has been infringed is not required to prove a “willful” violation to obtain an award of defendant’s ill-gotten profits – and that this potentially exposes the trademark infringer’s profits in every infringement case.  The ruling overturned the findings of a number of Courts of Appeal, which had previously required a trademark infringement plaintiff to prove both “a likelihood of confusion combined with willful infringement”.

https://www.jdsupra.com/legalnews/supreme-court-strikes-down-willfulness-99052/

COVID-19: FINANCIAL CRIME AND THE CPS INTERIM CHARGING PROTOCOL

On 27 April, an article from Dechert LLP reported on the Interim Charging Protocol issued on 8 April by the CPS, which describes the pandemic as an “unprecedented crisis” for the management of the justice system.  The Protocol is described as a practical measure by the CPS to streamline and prioritise charging decisions during the crisis.  The article considers the implications on Covid-19 related financial crime and the types of offences which the CPS will prioritise; the role and approach taken by other major UK law enforcement agencies; and how corporates may respond to the increased risk of fraudulent or other criminal conduct in the current circumstances.

https://www.jdsupra.com/legalnews/covid-19-coronavirus-business-impact-76114/

FCA HAS COMMENCED PROCEEDINGS AND FREEZES ASSETS OF 24HR TRADING ACADEMY LTD (24HTA) AND ITS SOLE DIRECTOR FOR ALLEGED UNAUTHORISED INVESTMENT ADVICE

A release on Mondo Visione on 27 April advised that the FCA alleges that from 2017 onward, 24HTA and/or its director have been advising on investments and arranging deals in investments without FCA authorisation, and engaging in financial promotions without being an authorised person or having the promotions approved by an authorised person. The FCA also alleges alternatively that the director, Mr Maricar, has been knowingly concerned in 24HTA’s contraventions. The FCA has secured an interim injunction stopping these activities from continuing and freezing the defendants’ assets up to £624,311 pending further hearing.

https://mondovisione.com/media-and-resources/news/uk-financial-conduct-authority-commences-civil-proceedings-in-relation-to-allege/

THE ILLEGAL WILDLIFE TRADE IS STILL ONE OF THE MOST PROFITABLE CRIMINAL ENTERPRISES

A post on the FCPA Blog on 27 April says that tackling the illegal wildlife trade will (or should?) be critical and companies across key sectors have an important role to play in the follow-up to the covid-19 crisis (and preventing something similar in the future).  It is reported that the UN estimates that global illegal wildlife trade is worth between $7 billion and $23 billion a year, making it one of the most profitable criminal enterprises. The post reflects on what has been done, and what more could be done.

https://fcpablog.com/2020/04/27/the-illegal-wildlife-trade-is-still-one-of-the-most-profitable-criminal-enterprises/

CENTRAL BANK OF IRAN (CBI) HAS REQUESTED THE IMF APPROVE $5 BILLION IN LOANS TO ASSIST IRAN WITH THE OUTBREAK OF COVID-19

On 27 April, the EU Sanctions Blog reported that the governor of the CBI suggested the loans be processed via the EU’s special purpose vehicle INSTEX or the Swiss Humanitarian Trade Arrangement, both of which were established to facilitate humanitarian-related transactions with Iran.

https://www.europeansanctions.com/2020/04/iran-central-bank-asks-imf-to-use-instex-for-loans/

AUSTRIAN COURT ENDS FRAUD PROBE OF 2003 EUROFIGHTER DEAL, BRIBERY CASE CONTINUES

On 27 April, Reuters reported that a court has stopped an Austrian investigation into alleged fraud by Airbus and Eurofighter Jagdflugzeug GmbH in connection with a $2 billion Eurofighter jet purchase in 2003.  However, this decision does not affect a broader criminal investigation of suspected bribery in the same deal that has been going on since 2011.

https://www.reuters.com/article/us-airbus-group-austria-inquiry/austrian-court-ends-fraud-probe-of-2003-eurofighter-deal-bribery-case-continues-idUSKCN2292NA

PAKISTAN INTERNATIONAL CRICKETER BANNED FOR CRICKET CORRUPTION CHARGES

Gambling Insider on 27 April reported that the Pakistan Cricket Board (PCB) has banned batsman Umar Akmal from all forms of the sport for 3 years, after he failed to report corrupt match-fixing approaches.

https://www.gamblinginsider.com/news/9007/pakistan-international-banned-by-pcb-for-cricket-corruption-charges

 

 

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