New York partner J. Eric Wise and New York of counsel Yair Galil are the authors of “Mezzanine Financing – Payment Subordination Agreements,” [PDF] published by Bloomberg Law on April 17, 2018.
New York partner J. Eric Wise and New York of counsel Yair Galil are the authors of “Mezzanine Financing – Payment Subordination Agreements,” [PDF] published by Bloomberg Law on April 17, 2018.
London partners Gregory A. Campbell and Amy Kennedy and London associate Nisha Navekar are the authors of “Intra-group Asset Transfers: In the Net, or Out?” [PDF] published in the Butterworths Journal of International Banking and Financial Law in March 2018.
In early 2017, Indonesia established a new form of production sharing contract (‘PSC’), the Gross-Split PSC, which abolished the cost recovery system first pioneered by Indonesia in 1966. Our article explores the history of the production sharing contract and some of the tensions associated with the traditional cost recovery system which contributed to the development of the Gross-Split PSC. We analyse the provisions of the new Gross-Split PSC and the issues that need to be considered by investors as a result of its introduction. To access a copy of our article, please click here: Our article was published in the Journal of World Energy Law and Business (JWELB) by Oxford University Press on behalf of the Association of International Petroleum Negotiators (AIPN) (Journal of World Energy Law and Business, 2018, 11, 116-135), which can be accessed at the following link: https://academic.oup.com/jwelb/article/11/2/116/4958804?guestAccessKey=a1fc1de5-422e-4abc-98bc-9e2f22303c2a Gibson, Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding these issues. For further details, please contact the Gibson Dunn lawyer with whom you usually work or the authors in the firm’s Singapore office: Brad Roach Partner +65 6507 3685 firstname.lastname@example.org Alistair Dunstan Senior Associate +65 6507 3635 email@example.com
New York partner J. Eric Wise and New York of counsel Yair Galil are the authors of “‘Crossover’ or ‘Split Collateral’ Lien Subordination,” [PDF] published by Bloomberg Law on April 13, 2018.
IJGlobal has named PT Medco Energi Internasional Tbk.’s Aceh Block A Project Financing as the 2017 Asia Pacific Oil & Gas Deal of the Year at its IJGlobal Awards, held on March 21, 2018. Gibson Dunn represented PT Medco E&P Malaka as operator and PT Medco Energi Internasional Tbk. as sponsor in a US$360 million pre-production reserves-based loan (RBL) project financing arranged by the mandated lead arrangers and bookrunners Australia and New Zealand Banking Group, ING Bank and Société Générale CIB for the development of Aceh Block A PSC gas fields in Indonesia. The Gibson Dunn team was led by Singapore partner Jamie Thomas and assisted by Singapore associate U-Shaun Lim.
Click for PDF In our client alert of 8 December 2017 we summarised the political deal relating to the terms of withdrawal of the UK from the EU with a two year transition. It is important to remember that this “Phase 1” deal only relates to the separation terms and not to the future relationship between the UK and the EU post Brexit. In her Mansion House speech on 2 March 2018 UK Prime Minister Theresa May set out Britain’s vision for a future relationship. The full text of her speech can be found here. It continues to make it clear that the UK will remain outside the Single Market and Customs Union. On the critical issue of the Irish border, the UK Government’s position remains that a technological solution is available to ensure that there is neither a hard border within Ireland nor a border in the Irish Sea which would divide the UK. Neither the EU nor Ireland itself accept that a technological solution is workable, and there remain doubts whether such a solution is possible if the UK is outside the EU Customs Union (or something equivalent to a customs union). The terms of the political deal in December make it clear that, in the absence of an agreed solution on this issue, the UK will maintain full alignment with the rules of the Single Market and Customs Union. The UK’s main opposition party, The Labour Party, has now shifted its position to support the UK remaining in a customs union. The Government is proposing a “customs partnership” which would mirror the EU’s requirements for imports and rules of origin. Theresa May has acknowledged both that access to the markets of the UK and EU will be less than it is today and that the decisions of the CJEU will continue to affect the UK after Brexit. On a future trade agreement, the UK’s position is that it will not accept the rights of Canada and the obligations of Norway and that a “bespoke model” is not the only solution. There is, however, an acknowledgement that, if the UK wants access to the EU’s market, it will need to commit to some areas of regulation such as state aid and anti-trust. Prime Minister May has confirmed that the UK will not engage in a “race to the bottom” in its standards in areas such as worker’s rights and environmental protections, and that there should be a comprehensive system of mutual recognition of regulatory standards. She has also said that there will need to be an independent arbitration mechanism to deal with any disagreements in relation to any future trade agreement. Theresa May has also said that financial services should be part of a deep and comprehensive partnership. The UK will also pay to remain in the European Medicines Agency, the European Chemicals Agency and the European Aviation Safety Agency but will not remain part of the EU’s Digital Single Market. Donald Tusk, the European Council President, has rejected much of the substance of the UK’s position, stating that the only possible arrangement is a free trade agreement excluding the mutual recognition model at the heart of the UK’s proposals. Crucially, however, he has said that there would be more room for negotiation should the UK’s red lines on the Customs Union and Single Market “evolve”. It is clear that this is an opening position for the two sides in the negotiations and that there is a long history of EU negotiations being settled at the very last minute. The current timetable envisages clarity on the final terms of the transition and the “end state” by the European Council meeting on 18/19 October 2018. This client alert was prepared by London partners Charlie Geffen and Nicholas Aleksander and of counsel Anne MacPherson. We have a working group in London (led by Nicholas Aleksander, Patrick Doris, Charlie Geffen, Ali Nikpay and Selina Sagayam) that has been considering these issues for many months. Please feel free to contact any member of the working group or any of the other lawyers mentioned below. Ali Nikpay – Antitrust ANikpay@gibsondunn.com Tel: 020 7071 4273 Charlie Geffen – Corporate CGeffen@gibsondunn.com Tel: 020 7071 4225 Nicholas Aleksander – Tax NAleksander@gibsondunn.com Tel: 020 7071 4232 Philip Rocher – Litigation PRocher@gibsondunn.com Tel: 020 7071 4202 Jeffrey M. Trinklein – Tax JTrinklein@gibsondunn.com Tel: 020 7071 4224 Patrick Doris – Litigation; Data Protection PDoris@gibsondunn.com Tel: 020 7071 4276 Alan Samson – Real Estate ASamson@gibsondunn.com Tel: 020 7071 4222 Penny Madden QC – Arbitration PMadden@gibsondunn.com Tel: 020 7071 4226 Selina Sagayam – Corporate SSagayam@gibsondunn.com Tel: 020 7071 4263 Thomas M. Budd – Finance TBudd@gibsondunn.com Tel: 020 7071 4234 James A. Cox – Employment; Data Protection JCox@gibsondunn.com Tel: 020 7071 4250 Gregory A. Campbell – Restructuring GCampbell@gibsondunn.com Tel: 020 7071 4236 © 2018 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
New York partner J. Eric Wise and New York of counsel Yair Galil are the authors of “‘All Assets’ First-Lien/Second-Lien Intercreditor Agreements,” [PDF] published by Bloomberg Law on March 7, 2018.
Click for PDF As some sectors of the UK economy continue to falter and feel the negative impact of various macro-economic events (including depressed oil and commodity prices, low interest rates and the uncertainty caused by the Brexit referendum decision and ensuing withdrawal process), it is inevitable that a number of borrowers will find themselves in pre-distressed or distressed scenarios. The vast majority of loan documentation governing live credits has either been entered into since the financial crisis in 2008 or reflects refinancings that have taken place since then. Far from being more lender-friendly, however, it is generally acknowledged that there has been a gradual erosion of traditional lender protections – e.g. a watering down of financial covenant protections with the emergence of covenant-loose or covenant-lite loans – together with an influx of pro-sponsor/borrower provisions, often imported from the US market. Whilst on the one hand this is great news for borrowers – their loan documentation is, often, inherently more flexible than it once would have been and there are arguably fewer so-called early warning signs or hair triggers for lenders – it is clear that there are still a number of provisions within loan documentation that may present challenges to borrowers in pre-distressed or distressed situations. This article looks to identify and navigate through a number of these. Material Adverse Effect, and Default or Event of Default In analyzing loan documentation from the perspective of a pre-distressed or distressed credit, it is key to have an understanding as to the scope of the Material Adverse Effect definition, and the application of the Default or Event of Default definitions. This is because the drafting of these seemingly innocuous defined terms can have a key bearing on whether a distressed or pre-distressed borrower is able to continue to utilize its debt facilities and/or avoid having to make premature disclosure of possible financial difficulties to its lenders. The definition of Material Adverse Effect typically acts as a qualifier for representations and/or positive covenants. In addition, an immediate Event of Default typically arises if any event or circumstance occurs which has, or is reasonably likely to have, a Material Adverse Effect, giving lenders the ability to exercise their acceleration rights. There are customarily three limbs included within a Loan Market Association (“LMA”) form of Material Adverse Effect definition, as set out below: “an event or circumstance which has (or is reasonably likely to have) a material adverse effect on: (a) the business, assets or financial condition of the Group (taken as a whole); (b) the ability of the [Obligors] (taken as a whole) to perform their payment obligations under the Finance Documents; and (c) the validity or enforceability of or the effectiveness or ranking of transaction security.” Of course, top-tier sponsors successfully negotiate significantly more borrower-friendly Material Adverse Effect definitions. However, it would be wrong to assume that in all instances the definition is well negotiated from the perspective of the borrower and, despite both its importance and prevalence, there are a number of recent examples of loan agreements which include one or more of the following lender-friendly concepts: (i) the inclusion of a subjective test such that the question whether the relevant event or circumstance has a material adverse effect is determined in the opinion, or reasonable opinion, of the lenders, (ii) the reach to any event or circumstance that has an effect not only on the assets or financial condition of the Group but also the prospects of that Group, and (iii) the material adverse effect bites on the ability of the relevant entities to perform their obligations in relation to financial covenant testing. A subjective test should always be avoided (as is the general rule of thumb for any determination to be made by a lender or agent throughout loan documentation) as it is much more difficult to challenge a subjective determination rather than an objective one, but often the significance of either a reference to “prospects” or to the ability of the relevant entities to perform their financial covenant obligations only becomes apparent when considering a distressed or pre-distressed scenario. Let’s consider a practical example: If a company delivers to its lenders monthly financial statements that show in all likelihood that the financial covenants, which are tested by reference to the quarterly financial statements delivered at the end of the following month, will be breached, does that give the company’s lenders grounds to conclude that there has been a material adverse effect on either the prospects of the Group or the ability of the relevant entities to perform their financial covenant obligations? No two situations are the same and so, to some extent, the answer will turn on the unique facts. If a situation like this were to arise, a court would look to determine whether a reasonable person, having the same knowledge and skill as the lenders, would determine that, on those facts, an event had occurred which had, or was reasonably likely to have, a material adverse effect on the prospects of the group or the ability of the relevant entity to comply with the financial covenants. This is not a question of law but, rather, one of judgment – whilst declaring a material adverse effect in this instance would not be without risk for the lenders, it is something which they could consider. There have been very few instances where lenders have relied solely on the occurrence of a material adverse effect to call an Event of Default and exercise their rights and remedies, particularly as lenders will generally err on the side of caution, but it is not unheard of or theoretically impossible. In addition to Material Adverse Effect, the concepts of Default and Event of Default are also key. Typically, a Default is an event or circumstance which would, “with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing“, be an Event of Default. As we noted with the Material Adverse Effect definition above, it is the occurrence of Defaults and Events of Default which trigger certain key rights and remedies for lenders under the underlying finance documentation – including putting the underlying debt on demand, declaring all or some of the debt immediately due and payable, or taking steps to enforce security. Even if lenders choose not to exercise any of these rights following the occurrence of a Default or an Event of Default, the fact that they could do so is likely to underpin their stance towards the relevant borrower, and there may also be further consequences for that borrower as well (some of which we explore in some detail below). Possible Default Triggers Having regard to the above hypothetical fact pattern again, it is worth considering whether a Default or Event of Default may be deemed to have occurred following delivery of the monthly financial statements/management accounts. Let’s suppose that the borrower/group is approaching impending financial distress, and the monthly financial statements suggest that some or all of the company’s financial covenants may not be complied with on the next test date. In that scenario, it is unlikely that delivery of such monthly financial statements would of itself be a Default (and therefore, also unlikely that the Borrower would be obliged to notify the agent of the occurrence of Default or an Event of Default, see further below). This view is based on a legal analysis of the typical definition of “Default” and the fact that that definition does not (as is sometimes the case) include or refer to events that “with the passage of time” would become Events of Default. It would of course be open to a company to choose to notify the lenders in any event, and/or the lenders may (incorrectly from a strictly legal point of view) consider delivery of such financials to have given rise to a “Default”. Of course, if the relevant compliance certificate eventually delivered with the underlying financial statements does show a breach of all or certain financial covenants, this will give rise to an Event of Default on the date on which the covenants are tested. The key point here is to be very clear about what the definition of “Default” says in analysing whether events or circumstances that may inexorably lead to an Event of Default necessarily constitute a Default. In a distressed, or soon-to-be distressed scenario, there are three other common events which may or may not trigger a Default or Event of Default. First, it is often an Event of Default if the auditors of the relevant borrower or borrower group qualify the audited annual consolidated financial statements of the group, and, e.g. the grounds giving rise to the qualification would be material in the context of the financing documents, or the qualification would be adverse (or materially adverse) to the interests of the finance parties. The permutations of this Event of Default are important – rather like the Material Adverse Effect definition, there are a range of different provisions throughout the market and it is important for a borrower to understand whether any qualification is expected, and, if so, what the documentary and practical consequences of it may be – early-stage discussions and dialogue with the auditors and accountants of the group are key. Second, will the fact that an entity is balance sheet insolvent i.e. that its assets are less than its actual and contingent liabilities, result in the occurrence of a Default? Often, the existence of a balance sheet insolvency test will be included as a Default – and usually, on an individual-company (rather than consolidated) basis. This creates the opportunity for an individual company within the group to trip a Default, notwithstanding that the company is not actually in financial difficulty, can meet its liabilities as they fall due and is not presumed insolvent under English law. Borrowers should, therefore, resist inclusion of a standalone balance sheet solvency Event of Default and should point to separate, customary lender protections e.g. an Event of Default that is triggered upon actual commencement of informal or formal insolvency proceedings, as providing sufficient lender comfort. Third, the LMA form of insolvency Event of Default captures the commencement of informal measures (such as negotiations with creditors) in relation to actual or anticipated financial difficulty, as set out below: (a) A member of the Group: is unable or admits inability to pay its debts as they fall due; [is deemed to, or is declared to, be unable to pay its debts under applicable law]; suspends or threatens to suspend making payments on any of its debts; or by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness. On its face, limb (iv) of the standard LMA formulation covers rescheduling of any indebtedness with any single creditor, including a company’s bank lenders, its landlords and trade creditors, irrespective of the quantum of those liabilities. The extent to which any particular approach or negotiations with a single or class of creditors might trip this Event of Default will invariably turn on the factual matrix; however, it should be noted that the High Court has previously held that the term “rescheduling” implies a degree of formality and relates to the formal deferment of debt-service payments and the application of new and extended maturities to the deferred debt. It is not, therefore, concerned with an informal telephone conversation with or email to a relationship or credit manager requesting “a bit more time to pay”, which would be commercially unfeasible (particularly for highly leveraged entities which might have such conversations on a daily basis). Furthermore, the High Court has stated that the lead-in wording, which requires that informal negotiations be commenced by reason of “actual or anticipated financial difficulties”, in the context of a clause dealing with insolvency, envisages “difficulties” of a substantial nature. Notwithstanding the foregoing, however, a court will (subject to the particular facts) find that an event of default has occurred where negotiations are or the proposed rescheduling is beyond the ordinary course of a borrower’s business or is not simply a case of rolling-over existing indebtedness into new indebtedness. Prudent borrowers might try to limit the ambit of the above Event of Default to exclude negotiations with trade creditors; require that negotiations be with a “class” rather than single creditor; or specify that the Event of Default is triggered only on the occurrence of formal legal proceedings. Given the fact-sensitive nature of this provision, it is also important that borrowers and their advisers are alert to and carefully consider the potential to trigger a Default at the outset of a stressed or soon-to-be distressed scenario upon commencement of informal discussions with a single creditor or class of creditors. Finally, it is always important for a company to have one eye on its repeating representations – many borrowers will be unaware that a number of representations will be given automatically (including those buried in side letters or ancillary agreements such as security documents) – e.g. on each interest payment date. Whilst a number of these representations are often technical or legal in nature, a number also extend to factual scenarios and, in some cases, to a representation that there is no Default. Consequences of the Occurrence of a Default or Event of Default At this juncture, it is worth noting – again perhaps obviously – that whilst as a commercial matter a distinction is sometimes drawn between a payment or “money” default and other so-called “technical” defaults (e.g. breach of undertaking, failure to deliver financial statements, etc.), as a legal matter, there is no such distinction, and there is no qualitative difference in terms of consequences between a payment or money Event of Default and any other Event of Default – the occurrence of any of them entitles the lenders to exercise the rights and remedies available to them under the relevant finance documents. Although there are a handful of exceptions, it is best practice to assume that a technical default is the same as any other default and therefore the consequences of any such default are the same. Borrowers should ensure that all Events of Default, technical or otherwise, are waived in writing and confirmed as no longer “continuing”. As to the practical consequences of a Default or Event of Default, typically in many facilities, a drawstop to funding will be the occurrence of a Default in respect of new loans, and an actual Event of Default in relation to the rollover of existing loans (although, in some documents, even the occurrence of a potential Event of Default is a drawstop to rollover loans). Clearly, if the trigger in either case is a Default, both the risk of the drawstop occurring is increased but, more practically, the company needs to be more attuned to when a Default may or may not arise. As above, this drawstop would apply equally to so-called “technical” Defaults. In some cases a funding drawstop (particularly in relation to existing or rollover loans) may be the beginning of a company’s downfall – if a company requires an on-going revolving facility / working capital line such that it cannot continue trading without these facilities, if existing borrowings are draw stopped, this may signal the end. It is, therefore, particularly important to be aware of the triggers for funding draw stops, whether there is any advantage to a premature drawing of a revolving credit line (noting that this may not necessarily glean favour with the lending group) and how vital any undrawn facilities (particularly working capital facilities) are to the going concern nature of the group. It is also worth noting that any such drawstop may also apply to any overdraft facility (or equivalent) provided by way of ancillary facility. By way of reminder, customary loan documentation will typically require a borrower to provide the following information: (at any time) a certificate signed by certain senior officers of the company certifying that no Default is continuing (or, if a Default is continuing, specifying the Default and steps taken to remedy the same). This is a seemingly innocuous but potentially very important tool in the lenders’ armory and may be relied upon as the lenders become aware of potential financial difficulties (e.g. upon receipt of financial statements and/or compliance certificates) as a means of procuring an acknowledgment from the company that a Default has occurred and triggering the protections that arise on a Default. Borrowers and their advisers should ensure that provisions and the potential tripwires noted above are read with care to avoid responding to the lenders acknowledging a Default where, legally, and on an interpretation of the finance documents, there is no Default; and (promptly upon request) such further information regarding the financial condition, assets and operations of the group and/or any member of the group as any finance party may reasonably request. It is not uncommon for lenders to invoke this information request right in a stressed scenario as a means to obtaining further information; requests and responses to the lenders should be carefully considered by borrowers and their advisers, particularly to ensure that the response, if any, does not of itself constitute or give rise to a Default or Event of Default. In addition to the information undertakings/rights referred to above, loan agreements will usually also include a general undertaking requiring the group, in the event that a Default is continuing or the agent reasonably suspects such, to permit the agent and its professional advisers free access at all reasonable times and on reasonable notice (at the borrower’s cost) to the premises, assets, books and accounts of each group company, and to meet and discuss matters with members of senior management. Since this undertaking extends to a situation where the agent reasonably suspects a Default may have occurred, it may be invoked by the lender group ahead of an actual Default and upon receipt of financial information which is sufficiently concerning to the lenders. It is, typically, this right which permits the lenders to commission an independent business review (or so-called “IBR”) whereby a firm of accountants will be appointed to investigate and report on the financial condition of the group and which is invariably a preliminary condition to implementing a restructuring plan. Other In a stressed or distressed scenario, it is also helpful for a company to have one eye on the transfer provisions contained within the finance documents. Typically, where lenders are subject to restrictions on transferability – e.g. to affiliates and entities on a white/permitted list – these will fall away following an Event of Default which is continuing. In essence, this means that following an Event of Default, lenders would have the ability to transfer to distressed investors and/or so-called “vulture” or other credit funds (assuming, of course, that such entities are not already included on the White List). As result, the complexion and disposition of the relevant lender group towards the underlying credit group could change quite radically following the occurrence of an Event of Default in circumstances where one or more of the existing lenders decided to trade out of the credit and sell to “loan-to-own” or “distressed-for-control” investors whose approach and motivations may be different. In light of recent aggressive, sponsor-driven documentation, however, some borrowers may find transfers to “loan-to-own” lenders are actually prohibited or that consent to trading is still required during an Event of Default (save in relation to non-payment or insolvency Events of Default only). Borrowers should also keep in mind the amendment and/or waiver provisions contained in the finance documents, particularly in the context of a lending syndicate where relationships with the borrower and/or treatment of the credit diverges between lenders. The traditional LMA construct provides that the vast majority of amendments and/or waivers to the finance documents require majority lender consent (typically lenders whose commitments aggregate more than 662/3 per cent. of the total commitments). Loan documentation will usually also include customary “yank the bank”, “snooze you lose” and “structural adjustment” provisions which may be used to the borrower’s advantage; for example, in a scenario where the revolving facility provider is less amenable to a restructuring plan than the other lenders, subject to the ongoing working capital needs of the group, undrawn revolving commitments and amounts that are committed by way of ancillaries such as overdrafts but not actually drawn may be cancelled to adjust lender hold levels to the company’s advantage. Other facilities provided by favourable lenders, e.g. capex and acquisition facilities may also be drawn to adjust lender commitment levels. Again, it may be the case that in more recent documentation, the majority lender threshold is lower (for example, 50 per cent.) or that the scope of amendments requiring only affected/participating lender consent is greater, allowing more flexibility for borrowers. Refinancing Borrowers should also be alive to the inclusion of potential hair triggers when undertaking a refinancing or amendment to loan documentation in a non-distressed context; often, the terms of a refinancing will provide that documentation is amended to include updates to the most recent LMA form of loan agreement, to the extent required. Borrowers should resist wholesale acceptance of such amendments, however, and take care to ensure that these are purely mechanical. For example, a recent LMA update provides that a hedging agreement shall be deemed to be a “Finance Document” for the purposes of the definition of “Default”. Borrowers will, usually, have less control over and scope to negotiate hedging arrangements, and the inclusion of hedging agreements as a “Finance Document” for the purposes of the definition of “Default” will give the lenders a far earlier trigger on which to act than they otherwise had; instead, Borrowers should point to the protections built into separate ISDA documentation and to other events of default – e.g. MAE – as providing sufficient comfort for the lenders. The inclusion of new “LMA” undertakings and representations should also be closely analysed to determine any risk that the borrower might trip these. Conclusion Whilst it is hoped that the above provides some food for thought, the overriding message is that borrowers (and sponsors) must look to understand their financing documents – not only to regularly review compliance with repeating representations and on-going covenants, but also to ensure they know their obligations should a Default or Event of Default arise, and to understand the consequences of any such Default or Event of Default. Even if lenders do not look to accelerate the underlying debt or enforce security following a Default or Event of Default, they are more likely to use it as leverage as against the borrower, and could look to force an upward re-pricing, payment of a one-off fee or, just generally, be less amenable to agree to any required waiver or amendment.  Grupo Hotelero Urvasco SA v Carey Value Added SL and another  EWHC 1039 (Comm) (26 April 2013). Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Global Finance practice group, or the authors: Amy Kennedy – London (+44 (0)20 7071 4283, firstname.lastname@example.org) Alex Hillback – London (+44 (0)20 7071 4248, email@example.com) Please also feel free to contact the following leaders and members of the Global Finance group: Thomas M. Budd – London (+44 (0)20 7071 4234, firstname.lastname@example.org) Gregory A. Campbell – London (+44 (0)20 7071 4236, email@example.com) Richard Ernest – Dubai (+971 (0)4 318 4639, firstname.lastname@example.org) Jamie Thomas – Singapore (+65 6507.3609, email@example.com) Michael Nicklin – Hong Kong (+852 2214 3809, firstname.lastname@example.org) © 2018 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
Click for PDF “May you live in interesting times” goes the old Chinese proverb, which is not meant for a friend but for an enemy. Whoever expressed such wish, interesting times have certainly come to pass for the German economy. Germany is an economic giant focused on the export of its sophisticated manufactured goods to the world’s leading markets, but it is also, in some ways, a military dwarf in a third-tier role in the re-sketching of the new world order. Germany’s globally admired engineering know-how and reputation has been severely damaged by the Volkswagen scandal and is structurally challenged by disruptive technologies and regulatory changes that may be calling for the end of the era of internal combustion engines. The top item on Germany’s foreign policy agenda, the further integration of the EU-member states into a powerful economic and political union, has for some years now given rise to daily crisis management, first caused by the financial crisis and, since last year, by the uncertainties of BREXIT. As if this was not enough, internal politics is still handling the social integration of more than a million refugees that entered the country in 2015, who rightly expect fair and just treatment, education, medical care and a future. It has been best practice to address such manifold issues with a strong and hands-on government, but – unfortunately – this is also currently missing. While the acting government is doing its best to handle the day-to-day tasks, one should not expect any bold move or strategic initiative before a stable, yet to be negotiated parliamentary coalition majority has installed new leadership, likely again under Angela Merkel. All that will drag well into 2018 and will not make life any easier. In stark contrast to the difficult situation the EU is facing in light of BREXIT, the single most impacting piece of regulation that will come into effect in May 2018 will be a European Regulation, the General Data Protection Regulation, which will harmonize data protection law across the EU and start a new era of data protection. Because of its broad scope and its extensive extraterritorial reach, combined with onerous penalties for non-compliance, it will open a new chapter in the way companies world-wide have to treat and process personal data. In all other areas of the law, we observe the continuation of a drive towards ever more transparency, whether through the introduction of new transparency registers disclosing relevant ultimate beneficial owner information or misconduct, through obligatory disclosure regimes (in the field of tax law), or through the automatic exchange under the OECD’s Common Reporting Standard of Information that hitherto fell under the protection of bank secrecy laws. While all these initiatives are well intentioned, they present formidable challenges for companies to comply with the increased complexity and adequately respond to the increased availability and flow of sensitive information. Even more powerful than the regulatory push is the combination of cyber-attacks, investigative journalism, and social media: within a heartbeat, companies or individuals may find themselves exposed on a global scale to severe allegations or fundamental challenges to the way they did or do business. While this trend is not of a legal nature, but a consequence of how we now communicate and whom we trust (or distrust), for those affected it may have immediate legal implications that are often highly complex and difficult to control and deal with. Interesting times usually are good times for lawyers that are determined to solve problems and tackle issues. This is what we love doing and what Gibson Dunn has done best time and again in the last 125 years. We therefore remain optimistic, even in view of the rough waters ahead which we and our clients will have to navigate. We want to thank you for your trust in our services in Germany and your business that we enjoy here and world-wide. We do hope that you will gain valuable insights from our Year-End Alert of legal developments in Germany that will help you to successfully focus and resource your projects and investments in Germany in 2018 and beyond; and we promise to be at your side if you need a partner to help you with sound and hands-on legal advice for your business in and with Germany or to help manage challenging or forward looking issues in the upcoming exciting times. ________________________________ Table of Contents 1. Corporate, M&A 2. Tax 3. Financing and Restructuring 4. Labor and Employment 5. Real Estate 6. Data Protection 7. Compliance 8. Antitrust and Merger Control ________________________________ 1. Corporate, M&A 1.1 Corporate, M&A – Transparency Register – New Transparency Obligations on Beneficial Ownership As part of the implementation of the 4th European Money Laundering Directive into German law, Germany has created a new central electronic register for information about the beneficial owners of legal persons organized under German private law as well as registered partnerships incorporated within Germany. Under the restated German Money Laundering Act (Geldwäschegesetz – GWG) which took effect on June 26, 2017, legal persons of German private law (e.g. capital corporations like stock corporations (AG) or limited liability companies (GmbH), registered associations (eingetragener Verein – e.V.), incorporated foundations (rechtsfähige Stiftungen)) and all registered partnerships (e.g. offene Handelsgesellschaft (OHG), Kommanditgesellschaft (KG) and GmbH & Co. KG) are now obliged to “obtain, keep on record and keep up to date” certain information about their “beneficial owners” (namely: first and last name, date of birth, place of residence and details of the beneficial interest) and to file the respective information with the transparency register without undue delay (section 20 (1) GWG). A “beneficial owner“ in this sense is a natural person who directly or indirectly holds or controls more than 25% of the capital or voting rights, or exercises control in a similar way (section 3 (2) GWG). Special rules apply for registered associations, trusts, non-charitable unregulated associations and similar legal arrangements. “Obtaining” the information does not require the entities to carry out extensive investigations, potentially through multi-national and multi-level chains of companies. It suffices to diligently review the information on record and to have in place appropriate internal structures to enable it to make a required filing without undue delay. The duty to keep the information up to date generally requires that the company checks at least on an annual basis whether there have been any changes in their beneficial owners and files an update, if necessary. A filing to the transparency register, however, is not required if the relevant information on the beneficial owner(s) is already contained in certain electronic registers (e.g. the commercial register or the so-called “Unternehmensregister“). This exemption only applies if all relevant data about the beneficial owners is included in the respective documents and the respective registers are still up to date. This essentially requires the obliged entities to diligently review the information available in the respective electronic registers. Furthermore, as a matter of principle, companies listed on a regulated market in the European Union (“EU“) or the European Economic Area (“EEA“) (excluding listings on unregulated markets such as e.g. the Entry Standard of the Frankfurt Stock Exchange) or on a stock exchange with equivalent transparency obligations with respect to voting rights are never required to make any filings to the transparency register. In order to enable the relevant entity to comply with its obligations, shareholders who qualify as beneficial owners or who are directly controlled by a beneficial owner, irrespective of their place of residence, must provide the relevant entity with the relevant information. If a direct shareholder is only indirectly controlled by a beneficial owner, the beneficial owner himself (and not the direct shareholder) must inform the company and provide it with the necessary information (section 20 (3) sentence 4 GWG). Non-compliance with these filing and information obligations may result in administrative fines of up to EUR 100,000. Serious, repeated or systematic breaches may even trigger sanctions up to the higher fine threshold of EUR 1 million or twice the economic benefit of the breach. The information submitted to the transparency register is not generally freely accessible. There are staggered access rights with only certain public authorities, including the Financial Intelligence Unit, law enforcement and tax authorities, having full access rights. Persons subject to know-your-customer (“KYC“) obligations under the Money Laundering Act such as e.g. financial institutions are only given access to the extent the information is required for them to fulfil their own KYC obligations. Other persons or the general public may only gain access if they can demonstrate a legitimate interest in such information. Going forward, every entity subject to the Money Laundering Act should verify whether it is beneficially owned within the aforementioned sense, and, if so, make the respective filing to the transparency register unless the relevant information is already contained in a public electronic register. Furthermore, relevant entities should check (at least) annually whether the information on their beneficial owner(s) as filed with the transparency or other public register is still correct. Also, appropriate internal procedures need to be set up to ensure that any relevant information is received by a person in charge of making filings to the registers. Back to Top 1.2 Corporate, M&A – New CSR Disclosure Obligations for German Public Interest Companies Effective for fiscal years commencing on or after January 1, 2017, large companies with more than 500 employees are required to include certain non-financial information regarding their management of social and environmental challenges in their annual reporting (“CSR Information“). The new corporate social responsibility reporting rules (“CSR Reporting Rules“) implement the European CSR Directive into German law and are intended to help investors, consumers, policy makers and other stakeholders to evaluate the non-financial performance of large companies and encourage companies to develop a responsible and sustainable approach to business. The CSR Reporting Rules apply to companies with a balance sheet sum in excess of EUR 20 million and an annual turnover in excess of EUR 40 million, whose securities (stock or bonds etc.) are listed on a regulated market in the EU or the EEA as well as large banks and large insurance companies. It is estimated that approximately 550 companies in Germany are covered. Exemptions apply to consolidated subsidiaries if the parent company publishes the CSR Information in the group reporting. The CSR Reporting Rules require the relevant companies to inform on the policies they implemented, the results of such policies and the business risks in relation to (i) environmental protection, (ii) treatment of employees, (iii) social responsibility, (iv) respect for human rights and (v) anti-corruption and bribery. In addition, listed stock corporations are also obliged to inform with regard to diversity on their company boards. If a company has not implemented any such policy, an explicit and justified disclosure is required (“comply or explain”). Companies must further include significant non-financial performance indicators and must also include information on the amounts reported in this respect in their financial statements. The CSR Information can either be included in the annual report or by way of a separate CSR report, to be published on the company’s website or together with its regular annual report with the German Federal Gazette (Bundesanzeiger). The CSR Reporting Rules will certainly increase the administrative burden placed on companies when preparing their annual reporting documentation. It remains to be seen if the new rules will actually meet the expectations of the European legislator and foster and create a more sustainable approach of large companies to doing business in the future . Back to Top 1.3 Corporate, M&A – Corporate Governance Code Refines Standards for Compliance, Transparency and Supervisory Board Composition Since its first publication in 2002, the German Corporate Governance Code (Deutscher Corporate Governance Kodex – DCGK) which contains standards for good and responsible governance for German listed companies, has been revised nearly annually. Even though the DCGK contains only soft law (“comply or explain”) framed in the form of recommendations and suggestions, its regular updates can serve as barometer for trends in the public discussion and sometimes are also a forerunner for more binding legislative measures in the near future. The main changes in the most recent revision of the DCGK in February 2017 deal with aspects of compliance, transparency and supervisory board composition. Compliance The general concept of “compliance” was introduced by the DCGK in 2007. In this respect, the recent revision of the DCGK brought along two noteworthy new aspects. On the one hand, the DCGK now stresses in its preamble that good governance and management does not only require compliance with the law and internal policies but also ethically sound and responsive behavior (the “reputable businessperson concept”). On the other hand, the DCGK now recommends the introduction of a compliance management system (“CMS“). In keeping with the common principle of individually tailored compliance management systems that take into account the company’s specific risk situation, the DCGK now recommends appropriate measures reflecting the company’s risk situation and disclosing the main features of the CMS publically, thus enabling investors to make an informed decision on whether the CMS meets their expectations. It is further expressly recommended to provide employees with the opportunity to blow the whistle and also suggested to open up such whistle-blowing programs to third parties. Supervisory Board In line with the ongoing international trend of focusing on supervisory board composition, the DCGK now also recommends that the supervisory board not only should determine concrete objectives for its composition, but also develop a tailored skills and expertise profile for the entire board and to disclose in the corporate governance report to which extent such benchmarks and targets have been implemented in practice. In addition, the significance of having sufficient independent members on the supervisory board is emphasized by a new recommendation pursuant to which the supervisory board should disclose the appropriate number of independent supervisory board members as well as the members which meet the “independence” criteria in the corporate governance report. In accordance with international best practice, it is now also recommended to provide CVs for candidates for the supervisory board including inter alia relevant knowledge, skills and experience and to publish this information on the company’s website. With regard to supervisory board transparency, the DCGK now also recommends that the chairman of the supervisory board should be prepared, within an appropriate framework, to discuss topics relevant to the supervisory board with investors (please see in this regard our 2016-Year-End Alert, section 1.2). These new 2017 recommendations further highlight the significance of compliance and the role of the supervisory board not only for legislators but also for investors and other stakeholders. As soon as the annual declarations of non-conformity (“comply or explain”) are published over the coming weeks and months, it will be possible to assess how well these new recommendations will be received as well as what responses there will be to the planned additional supervisory board transparency (including, in particular, by family-controlled companies with employee co-determination on the supervisory board). Back to Top 1.4 Corporate, M&A – Employee Co-Determination: No European Extension As set out in greater detail in past alerts (please see in this regard our 2016 Year-End Alert, section 1.3 with further references), the scope and geographic reach of the German co-determination rules (as set out in the German Co-Determination Act; Mitbestimmungsgesetz – MitbestG and in the One-Third-Participation Act; Drittelbeteiligungsgesetz – DrittelbG) were the subject of several ongoing court cases. This discussion has been put to rest in 2017 by a decision of the European Court of Justice (ECJ, C-566/15 – July 18, 2017) that held that German co-determination rules and their restriction to German-based employees as the numeric basis for the relevant employee thresholds and as populace entitled to vote for such co-determined supervisory boards do not infringe against EU law principles of anti-discrimination and freedom of movement. The judgment has been received positively by both German trade unions and corporate players because it preserves the existing German co-determination regime and its traditional, local values against what many commentators would have perceived to be an undue pan-Europeanization of the thresholds and the right to vote for such bodies. In particular, the judgment averts the risk that many supervisory boards would have had to be re-elected based on a pan-European rather than solely German employee base. Back to Top 1.5 Corporate, M&A – Germany Tightens Rules on Foreign Takeovers On July 18, 2017, the amended provisions on foreign direct investments under the Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung – AWV), expanding and specifying the right of the Federal Ministry for Economic Affairs and Energy (“Ministry“) to review whether the takeover of domestic companies by investors outside the EU or the European Free Trade Area poses a danger to the public order or security of the Federal Republic of Germany came into force. The amendment has the following five main effects which will have a considerable impact on the M&A practice: (i) (non-exclusive) standard categories of companies and industries which are relevant to the public order or security for cross-sector review are introduced, (ii) the stricter sector-specific rules for industries of essential security interest (such as defense and IT-security) are expanded and specified, (iii) there is a reporting requirement for all takeovers within the relevant categories, (iv) the time periods for the review process are extended, and (v) there are stricter and more specific restrictions to prevent possible circumventions. Under the new rules, a special review by the German government is possible in cases of foreign takeovers of domestic companies which operate particularly in the following sectors: (i) critical infrastructure amenities, such as the energy, IT and telecommunications, transport, health, water, food and finance/insurance sectors (to the extent they are very important for the functioning of the community), (ii) sector-specific software for the operation of these critical infrastructure amenities, (iii) telecom carriers and surveillance technology and equipment, (iv) cloud computing services and (v) telematics services and components. The stricter sector-specific rules for foreign takeovers within the defense and IT-security industry are also expanded and now also apply to the manufacturers of defense equipment for reconnaissance and support. Furthermore, the reporting requirement no longer applies only to transactions within the defense and IT-security sectors, but also to all foreign takeovers that fall within the newly introduced cross-sector standard categories described above. The time periods allowed for the Ministry to intervene have been extended throughout. In particular, if an application for a clearance certificate is filed, the clearance certificate will be deemed granted in the absence of a formal review two months following receipt of the application rather than one month as in the past, and the review periods are suspended if the Ministry conducts negotiations with the parties involved. Further, a review may be commenced until five years after the signing of the purchase agreement, which in practice will likely result in an increase of applications for a clearance certificate in order to obtain more transaction certainty. Finally, the new rules provide for stricter and more specific restrictions of possible circumventions by, for example, the use of so-called “front companies” domiciled in the EU or the European Free Trade Area and will trigger the Ministry’s right to review if there are indications that an improper structuring or evasive transaction was at least partly chosen to circumvent the review by the Ministry. Although the scope of the German government’s ability to intervene in M&A processes has been expanded where critical industries are concerned, it is not clear yet to what extent stronger interference or more prohibitions or restrictions will actually occur in practice. And even though the new law provides further guidance, there are still areas of legal uncertainty which can have an impact on valuations and third party financing unless a clearance certificate is obtained. Due to the suspension of the review period in the case of negotiations with the Ministry, the review procedure has, at least in theory, no firm time limit. As a result, the M&A advisory practice has to be prepared for a more time-consuming and onerous process for transactions in the critical industries and may thus be forced to allow for more time between signing and closing. In addition, appropriate termination clauses (and possibly break fees) must be considered for purposes of the share purchase agreement in case a prohibition or restriction of the transaction on the basis of the amended AWV cannot be excluded. Back to Top 2. Tax 2.1 Tax – Unconstitutionality of German Change-of-Control Rules Tax loss carry forwards are an important asset in every M&A transaction. Over the past ten years the German change-of-control rules, which limit the use of losses and loss carry forwards (“Losses“) of a German target company, have undergone fundamental legislative changes. The current change-of-control rules may now face another significant revision as – according to the German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) and the Lower Tax Court of Hamburg – the current tax regime of the change-of-control rules violates the constitution. Under the current change-of-control rules, Losses of a German corporation will be forfeited on a pro rata basis if within a period of five years more than 25% but not more than 50% of the shares in the German loss-making corporation are transferred (directly or indirectly) to a new shareholder or group of shareholders with aligned interests. If more than 50% are transferred, Losses will be forfeited in total. There are exceptions to this rule for certain intragroup restructurings, built-in gains and – since 2016 – for business continuations, especially in the venture capital industry. On March 29, 2017, the German Federal Constitutional Court ruled that the pro rata forfeiture of Losses (share transfer of more than 25% but not more than 50%) is not in line with the constitution. The BVerfG held that the provision leads to unequal treatment of companies. The aim of avoiding legal but undesired tax optimizations does not justify the broad and general scope of the provision. The BVerfG has asked the German legislator to amend the change-of-control rules retroactively for the period from January 1, 2008 until December 31, 2015 and bring them in line with the constitution. The legislative changes need to be finalized by December 31, 2018. Furthermore, in another case on August 29, 2017, the Lower Tax Court of Hamburg held that the change-of-control rules, which result in a full forfeiture of Losses after a transfer of more than 50% of the shares in a German corporation, are also incompatible with the constitution. The ruling is based on the 2008 wording of the change-of-control rules but the wording of these rules is similar to that of the current forfeiture rules. In view of the March 2017 ruling of the Federal Constitutional Court on the pro-rata forfeiture, the Lower Tax Court referred this case also to the Federal Constitutional Court to rule on this issue as well. If the Federal Constitutional Court decides in favor of the taxpayer the German tax legislator may completely revise the current tax loss limitation regime and limit its scope to, for example, abusive cases. A decision by the Federal Constitutional Court is expected in the course of 2018. Affected market participants are therefore well advised to closely monitor further developments and consider the impact of potential changes on past and future M&A deals with German entities. Appeals against tax assessments should be filed and stays of proceedings applied for by reference to the case before the Federal Constitutional Court in order to benefit from a potential retroactive amendment of the change-of-control rules. Back to Top 2.2 Tax – New German Tax Disclosure Rules for Tax Planning Schemes In light of the Panama and Paradise leaks, the respective Finance Ministers of the German federal states (Bundesländer) created a working group in November 2017 to establish how the new EU Disclosure Rules for advisers and taxpayers as published by the European Commission (“Commission“) on July 25, 2017 can be implemented into German law. Within the member states of the EU, mandatory tax disclosure rules for tax planning schemes already exist in the UK, Ireland and Portugal. Under the new EU disclosure rules certain tax planners and advisers (intermediaries) or certain tax payers themselves must disclose potentially aggressive cross-border tax planning arrangements to the tax authorities in their jurisdiction. This new requirement is a result of the disclosure rules as proposed by the OECD in its Base Erosion and Profit Shifting (BEPS) Action 12 report, among others. The proposal requires tax authorities in the EU to automatically exchange reported information with other tax authorities in the EU. Pursuant to the Commission’s proposal, an “intermediary” is the party responsible for designing, marketing, organizing or managing the implementation of a tax payer´s reportable cross border arrangement, while also providing that taxpayer with tax related services. If there is no intermediary, the proposal requires the taxpayer to report the arrangement directly. This is, for example, the case if the taxpayer designs and implements an arrangement in-house, if the intermediary in question does not have a presence within the EU or in case the intermediary cannot disclose the information because of legal professional privilege. The proposal does not define what “arrangement” or “aggressive” tax planning means but lists characteristics (so-called “hallmarks“) of cross-border tax planning schemes that would strongly indicate whether tax avoidance or abuse occurred. These hallmarks can either be generic or specific. Generic hallmarks include arrangements where the tax payer has complied with a confidentiality provision not to disclose how the arrangement could secure a tax advantage or where the intermediary is entitled to receive a fee with reference to the amount of the tax advantage derived from the arrangement. Specific hallmarks include arrangements that create hybrid mismatches or involve deductible cross border payments between related parties with a preferential tax regime in the recipient’s tax resident jurisdiction. The information to be exchanged includes the identities of the tax payer and the intermediary, details about the hallmarks, the date of the arrangement, the value of the transactions and the EU member states involved. The implementation of such mandatory disclosure rules on tax planning schemes are heavily discussed in Germany especially among the respective bar associations. Elements of the Commission’s proposal are regarded as a disproportionate burden for intermediaries and taxpayers in relation to the objective. Further clarity is needed to align the proposal with the general principle of legal certainty. Certain elements of the proposal may contravene EU law or even the German constitution. And the interaction with the duty of professional secrecy for lawyers and tax advisors is also still unclear. Major efforts are therefore needed for the German legislator to make such a disclosure regime workable both for taxpayers/intermediaries and the tax administrations. It remains to be seen how the Commission proposal will be implemented into German law in 2018 and how tax structuring will be affected. Back to Top 2.3 Tax – Voluntary Self-Disclosure to German Tax Authorities Becomes More Challenging German tax law allows voluntary self-disclosure to correct or supplement an incorrect or incomplete tax return. Valid self-disclosure precludes criminal liability for tax evasion. Such exemption from criminal prosecution, however, does not apply if the tax evasion has already been “detected” at the time of the self-disclosure and this is at least foreseeable for the tax payer. On May 5, 2017 the German Federal Supreme Court (Bundesgerichtshof – BGH) further specified the criteria for voluntary self-disclosure to secure an exemption from criminal prosecution (BGH, 1 StR 265/16 – May 9, 2017). The BGH ruled that exemption from criminal liability might not apply if a foreign authority had already discovered the non- or underreported tax amounts prior to such self-disclosure. Underlying the decision of the BGH was the case of a German employee of a German defense company, who had received payments from a Greek business partner, but declared neither the received payments nor the resulting income in his tax declaration. The payment was a reward for his contribution in selling weapons to the Greek government. The Greek authorities learned of the payment to the German employee early in 2004 in the course of an anti-bribery investigation and obtained account statements proving the payment through intermediary companies and foreign banks. On January 6, 2014, the German employee filed a voluntary self-disclosure to the German tax authorities declaring the previously omitted payments. The respective German tax authority found that this self-disclosure was not submitted in time to exempt the employee from criminal liability. The issue in this case was by whom and at what moment in time the tax evasion needed to be detected in order to render self-disclosure invalid. The BGH ruled that the voluntary self-disclosure by the German employee was futile due to the fact that the payment at issue had already been detected by the Greek authorities at the time of the self-disclosure. In this context, the BGH emphasized that it was not necessary for the competent tax authorities to have detected the tax evasion, but it was sufficient if any other authority was aware of the tax evasion. The BGH made clear that this included foreign authorities. Thus, a prior detection is relevant if on the basis of a preliminary assessment of the facts a conviction is ultimately likely to occur. This requirement is for example met if it can be expected that the foreign authority that detected the incorrect, incomplete or omitted fact will forward this information to the German tax authorities as in the case before the BGH. In particular, there was an international assistance procedure in place between German and Greek tax authorities and the way the payments were made by using intermediaries and foreign banks made it obvious to the Greek authorities that the relevant amounts had not been declared in Germany. Due to the media coverage of the case, this was also at least foreseeable for the German employee. This case is yet another cautionary tale for tax payers not to underestimate the effects of increased international cooperation of tax authorities. Back to Top 3. Financing and Restructuring 3.1 Financing and Restructuring – Upfront Banking Fees Held Void by German Federal Supreme Court On July 4, 2017, the German Federal Supreme Court (Bundesgerichtshof – BGH) handed down two important rulings on the permissibility of upfront banking fees in German law governed loan agreements. According to the BGH, boilerplate clauses imposing handling, processing or arrangement fees on borrowers are void if included in standard terms and conditions (Allgemeine Geschäftsbedingungen). With this case, the court extended its prior rulings on consumer loans to commercial loans. The BGH argued that clauses imposing a bank’s upfront fee on a borrower fundamentally contradict the German statutory law concept that the consideration for granting a loan is the payment of interest. If ancillary pricing arrangements (Preisnebenabreden) pass further costs and expenses on to the borrower, the borrower is unreasonably disadvantaged by the user (Verwender) of standard business terms, unless the additional consideration is agreed for specific services that go beyond the mere granting of the loan and the handling, processing or arrangement thereof. In the cases at hand, the borrowers were thus awarded repayment of the relevant fee. The implications of these rulings for the German loan market are far-reaching. The rulings affect all types of upfront fees for a lender’s services which are routinely passed on to borrowers even though they would otherwise be owed by the lender pursuant to statutory law, a regulatory regime or under a contract or which are conducted in the lender’s own interest. Consequently, this covers fees imposed on the borrower for the risk assessment (Bonitätsprüfung), the valuation of collateral, expenses for the collection of information on the assessment of a borrower’s financing requirements and the like. At this stage, it is not yet certain if, for example, agency fees or syndication fees could also be covered by the decision. There are, however, good arguments to reason that services rendered in connection with a syndication are not otherwise legally or contractually owed by a lender. Upfront fees paid in the past, i.e. in 2015 or later, can be reclaimed by borrowers. The BGH applied the general statutory three year limitation period and argued that the limitation period commenced at the end of 2011 after Higher District Courts (Oberlandesgerichte) had held upfront banking fees void in deviation from previous rulings. As of such time, borrowers should have been aware that a repayment claim of such fees was possible and could have filed a court action even though the enforcement of the repayment was not risk-free. Going forward, it can be expected that lenders will need to modify their approach as a result of the rulings: Choosing a foreign (i.e. non-German) law for a separate fee agreement could be an option for lenders, at least, if either the lender or the borrower is domiciled in the relevant jurisdiction or if there is a certain other connection to the jurisdiction of the chosen law. If the loan is granted by a German lender to a German borrower, the choice of foreign law would also be generally recognized, but under EU conflict of law provisions mandatory domestic law (such as the German law on standard terms) would likely still continue to apply. In response to the ruling, lenders are also currently considering alternative fee structures: Firstly, the relevant costs and expenses underlying such fees are being factored into the calculation of the interest and the borrower is then given the option to choose an upfront fee or a (higher) margin. This may, however, not always turn out to be practical, in particular given that a loan may be refinanced prior to generating the equivalent interest income. Secondly, a fee could be agreed in a separate fee letter which specifically sets out services which go beyond the typical services a bank renders in its own interest. It may, however be difficult to determine services which actually justify a fee. Finally, a lender might charge typical upfront fees following genuine individual negotiations. This requires that the lender not only shows that it was willing to negotiate the amount of the relevant fee, but also that it was generally willing to forego the typical upfront fee entirely. However, if the borrower rejects the upfront fee, the lender still needs to rely on alternative fee arrangements. Further elaboration by the courts and market practice should be closely monitored by lenders and borrowers alike. Back to Top 3.2 Financing and Restructuring – Lingering Uncertainty about Tax Relief for Restructuring Profits Ever since the German Federal Ministry of Finance issued an administrative order in 2003 (“Restructuring Order“) the restructuring of distressed companies has benefited from tax relief for income tax on “restructuring profits”. In Germany, restructuring profits arise as a consequence of debt to equity swaps or debt waivers with regard to the portion of such debt that is unsustainable. Debtors and creditors typically ensured the application of the Restructuring Order by way of a binding advance tax ruling by the tax authorities thus providing for legal certainty in distressed debt scenarios for the parties involved. However, in November 2016, the German Federal Tax Court (Bundesfinanzhof – BFH) put an end to such preferential treatment of restructuring profits. The BFH held the Restructuring Order to be void arguing that the Federal Ministry of Finance had lacked the authority to issue the Restructuring Order. It held that such a measure would need to be adopted by the German legislator instead. The Ministry of Finance and the German restructuring market reacted with concern. As an immediate response to the ruling the Ministry of Finance issued a further order on April 27, 2017 (“Continuation Order”) to the effect that the Restructuring Order continued to apply in all cases in which creditors finally and with binding effect waived claims on or before February 8, 2017 (the date on which the ruling of the Federal Tax Court was published). But the battle continued. In August 2017, the Federal Tax Court also set aside this order for lack of authority by the Federal Ministry of Finance. In the meantime, the German Bundestag and the Bundesrat have passed legislation on tax relief for restructuring profits, but the German tax relief legislation will only enter into force once the European Commission issues a certificate of non-objection confirming the new German statutory tax relief’s compliance with EU restrictions on state aid. This leaves uncertainty as to whether the new law will enter into force in its current wording and when. Also, the new legislation will only cover debt waivers/restructuring profits arising after February 8, 2017 but at this stage does not provide for the treatment of cases before such time. In the absence of the 2003 Restructuring Order and the 2017 Continuation Order, tax relief would only be possible on the basis of equitable relief in exceptional circumstances. It appears obvious that no reliable restructuring concept can be based on potential equitable relief. Thus, it is advisable to look out for alternative structuring options in the interim: Subordination of debt: while this may eliminate an insolvency filing requirement for illiquidity or over indebtedness, the debt continues to exist. This may make it difficult for the debtor to obtain financing in the future. In certain circumstances, a carve-out of the assets together with a sustainable portion of the debt into a new vehicle while leaving behind and subordinating the remainder of the unsustainable portion of the debt, could be a feasible option. As the debt subsists, a silent liquidation of the debtor may not be possible considering the lingering tax burden on restructuring profits. Also, any such carve-out measures by which the debtor is stripped of assets may be challenged in case of a later insolvency of the debtor. A debt hive up without recourse may be a possible option, but a shareholder or its affiliates are not always willing to assume the debt. Also, as tax authorities have not issued any guidelines on the tax treatment of debt hive ups, a binding advance tax ruling from the tax authorities should be obtained before the debt hive up is executed. Still, a debt hive up could be an option if the replacement debtor is domiciled in a jurisdiction which does not impose detrimental tax consequences on the waiver of unsustainable debt. Converting the debt into a hybrid instrument which constitutes debt for German tax purposes and equity from a German GAAP perspective is no longer feasible. Pursuant to a tax decree from May 2016, the tax authorities argue that the creation of a hybrid instrument amounts to a taxable waiver of debt on the basis that tax accounting follows commercial accounting. It follows that irrespective of potential alternative structures which may suit a specific set of facts and circumstances, restructuring transactions in Germany continue to be challenging pending the entry into force of the new tax relief legislation. Back to Top 4. Labor and Employment 4.1 Labor and Employment – Defined Contribution Schemes Now Allowed In an effort to promote company pension schemes and to allow more flexible investments, the German Company Pension Act (Betriebsrentengesetz – BetrAVG) was amended considerably with effect as of January 1, 2018. The most salient novelty is the introduction of a purely defined contribution pension scheme, which had not been permitted in the past. Until now, the employer would always be ultimately liable for any kind of company pension scheme irrespective of the vehicle it was administered through. This is no longer the case with the newly introduced defined contribution scheme. The defined contribution scheme also entails considerable other easements for employers, e.g. pension adjustment obligations or the requirement of insolvency insurance no longer apply. As a consequence, a company offering a defined contribution pension scheme does not have to deal with the intricacies of providing a suitable investment to fulfil its pension promise, but will have met its duty in relation to the pension simply by paying the promised contribution (“pay and forget”). However, the introduction of such defined contribution schemes requires a legal basis either in a collective bargaining agreement (with a trade union) or in a works council agreement, if the union agreement so allows. If these requirements are met though, the new legal situation brings relief not only for employers offering company pension schemes but also for potential investors into German businesses for whom the German-specific defined benefit schemes have always been a great burden. Back to Top 4.2 Labor and Employment – Federal Labor Court Facilitates Compliance Investigations In a decision much acclaimed by the business community, the German Federal Labor Court (Bundesarbeitsgericht – BAG) held that intrusive investigative measures by companies against their employees do not necessarily require a suspicion of a criminal act by an employee; rather, less severe forms of misconduct can also trigger compliance investigations against employees (BAG, 2 AZR 597/16 – June 29, 2017). In the case at hand, an employee had taken sick leave, but during his sick leave proceeded to work for the company owned by his sons who happened to be competing against his current employer. After customers had dropped corresponding hints, the company assigned a detective to ascertain the employee’s violation of his contractual duties and subsequently fired the employee based on the detective’s findings. In the dismissal protection trial, the employee argued that German law only allowed such intrusive investigation measures if criminal acts were suspected. This restriction was, however, rejected by the BAG. This judgment ends a heated debate about the permissibility of internal investigation measures in the case of compliance violations. However, employers should always adhere to a last-resort principle when investigating possible violations. For instance, employees must not be seamlessly monitored at their workplace by way of a so-called “key logger” as the Federal Labor Court held in a different decision (BAG, 2 AZR 681/16 – July 27, 2017). Also, employers should keep in mind a recent ruling of the European Court of Human Rights of September 5, 2017 (ECHR, 61496/08). Accordingly, the workforce should be informed in advance that and how their email correspondence at the workplace can be monitored. Back to Top 5. Real Estate Real Estate – Invalidity of Written Form Remediation Clauses for Long-term Lease Agreements On September 27, 2017, the German Federal Supreme Court (Bundesgerichtshof – BGH) ruled that so-called “written form remediation clauses” (Schriftformheilungsklauseln) in lease agreements are invalid because they are incompatible with the mandatory provisions of section 550 of the German Civil Code (Bürgerliches Gesetzbuch – BGB; BGH, XII ZR 114/16 – September 27, 2017). The written form for lease agreements requires that all material agreements concerning the lease, in particular the lease term, identification of the leased premises and the rent amount, must be made in writing. If a lease agreement entered into for a period of more than one year does not comply with this written form requirement, mandatory German law allows either lease party to terminate the lease agreement with the statutory notice period irrespective of whether or not a fixed lease term was agreed upon. The statutory notice period for commercial lease agreements is six months (less three business days) to the end of any calendar quarter. To avoid the risk of termination for non-compliance with the written form requirement, German commercial lease agreements regularly contain a general written form remediation clause. Pursuant to such clause, the parties of the lease agreement undertake to remediate any defect in the written form upon request of one of the parties. While such general written form remediation clauses were upheld in several decisions by various Higher District Courts (Oberlandesgerichte) in the past, the BGH had already rejected the validity of such clauses vis-à-vis the purchasers of real property in 2014. With this new decision, the BGH has gone one step further and denied the validity of general written form remediation clauses altogether. Only in exceptional circumstances, the lease parties are not entitled to invoke the non-compliance with the written form requirement on account of a breach of the good faith principle. Such exceptional circumstances may exist, for example, if the other party faced insolvency if the lease were terminated early as a result of the non-compliance or if the lease parties had agreed in the lease agreement to remediate such specific written form defect. This new decision of the BGH forces the parties to long-term commercial lease agreements to put even greater emphasis on ensuring that their lease agreements comply with the written form requirement at all times because remediation clauses as potential second lines of defense no longer apply. Likewise, the due diligence process of German real estate transactions will have to focus even more on the compliance of lease agreements with the written form requirement. Back to Top 6. Data Protection Data Protection – Employee Data Protection Under New EU Regulation After a two-year transition period, the EU General Data Protection Regulation (“GDPR“) will enter into force on May 25, 2018. The GDPR has several implications for data protection law covering German employees, which is already very strictly regulated. For example, under the GDPR any handling of personnel data by the employer requires a legal basis. In addition to statutory laws or collective agreements, another possible legal basis is the employee’s explicit written consent. The transfer of personnel data to a country outside of the European Union (“EU“) will have to comply with the requirements prescribed by the GDPR. If the target country has not been regarded as having an adequate data protection level by the EU Commission, additional safeguards will be required to protect the personnel data upon transfer outside of the EU. Otherwise, a data transfer is generally not permitted. The most threatening consequence of the GDPR is the introduction of a new sanctions regime. It now allows fines against companies of up to 4% of the entire group’s revenue worldwide. Consequently, these new features, especially the drastic new sanction regime, call for assessments of, and adequate changes to, existing compliance management systems with regard to data protection issues. Back to Top 7. Compliance 7.1 Compliance – Misalignment of International Sanction Regimes Requires Enhanced Attention to the EU Blocking Regulation and the German Anti-Boycott Provisions The Trump administration has been very active in broadening the scope and reach of the U.S. sanctions regime, most recently with the implementation of “Countering America’s Adversaries Through Sanctions Act (H.R. 3364) (‘CAATSA‘)” on August 2, 2017 and the guidance documents that followed. CAATSA includes significant new law codifying and expanding U.S. sanctions on Russia, North Korea, and Iran. The European Union (“EU“) has not followed suit. More so, the EU and European leaders openly stated their frustration about both a perceived lack of consultation during the process and the substance of the new U.S. sanctions. Specifically, the EU and European leaders are concerned about the fact that CAATSA authorizes secondary sanctions on any person supporting a range of activities. Among these are the development of Russian energy export pipeline projects, certain transactions with the Russian intelligence or defense sectors or investing in or otherwise facilitating privatizations of Russia’s state-owned assets that unjustly benefits Russian officials or their close associates or family members. The U.S. sanctions regime differentiates between primary sanctions that apply to U.S. persons (U.S. citizens, permanent U.S. residents and companies under U.S. jurisdiction) and U.S. origin goods, and secondary sanctions that expand the reach of U.S. sanctions by penalizing non-U.S. persons for their involvement in certain targeted activities. Secondary sanctions can take many forms but generally operate by restricting or threatening to restrict non-U.S. person access to the U.S. market, including its global financial institutions. European, especially export-heavy and internationally operating German companies are thus facing a dilemma. While they have to fear possible U.S. secondary sanctions for not complying with U.S. regulations, potential penalties also loom from European member state authorities when doing so. These problems are grounded in European and German legislation aimed at protecting from and counteracting financial and economic sanctions issued by countries outside of the EU and Germany, unless such sanctions are themselves authorized under relevant UN, European, and German sanctions legislation. On the European level, Council Regulation (EC) No 2271/96 of November, 22 1996 as amended (“EU Blocking Regulation“) is aimed at protecting European persons against the effects of the extra-territorial application of laws, such as certain U.S. sanctions directed at Cuba, Iran and Libya. Furthermore, it also aims to counteract the effects of the extra-territorial application of such sanctions by prohibiting European persons from complying with any requirement or prohibition, including requests of foreign courts, based on or resulting, directly or indirectly, from such U.S. sanctions. For companies subject to German jurisdiction, section 7 of the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung – AWV), states that “[t]he issuing of a declaration in foreign trade and payments transactions whereby a resident participates in a boycott against another country (boycott declaration) shall be prohibited” to the extent such a declaration would be contradictory to UN, EU and German policy. With the sanctions regime on the one hand and the blocking legislation at EU and German level on the other hand, committing to full compliance with U.S. sanctions whilst falling within German jurisdiction, could be deemed a violation of the AWV. Violating the AWV can lead to fines by the German authorities and, under German civil law, might render a relevant contractual provision invalid. For companies conducting business transactions on a global scale, the developing non-alignment of U.S. and European / German sanctions requires special attention. Specifically, covenants with respect to compliance with U.S. or other non-EU sanctions should be reviewed and carefully drafted in light of the diverging developments of U.S. and other non-EU sanctions on the one hand and European / German sanctions on the other hand. Back to Top 7.2 Compliance – Restated (Anti-) Money Laundering Act – Significant New Requirements for the Non-Financial Sector and Good Traders On June 26, 2017, the restated German Money Laundering Act (Geldwäschegesetz – GWG), which transposes the 4th European Anti-Money Laundering Directive (Directive (EU 2015/849 of the European Parliament and of the Council) into German law, became effective. While the scope of businesses that are required to conduct anti-money laundering procedures remains generally unchanged, the GWG introduced a number of new requirements, in particular for non-financial businesses, and significantly increases the sanctions for non-compliance with these obligations. The GWG now extends anti money laundering (“AML“) risk management concepts previously known from the financial sector also to non-financial businesses including good traders. As a matter of principle, all obliged businesses are now required to undertake a written risk analysis for their business and have in place internal risk management procedures proportionate to the type and scope of the business and the risks involved in order to effectively mitigate and manage the risks of money laundering and terrorist financing. In case the obliged business is the parent company of a group, a group-wide risk analysis and group-wide risk management procedures are required covering subsidiaries worldwide who also engage in relevant businesses. The risk analysis must be reviewed regularly, updated if required and submitted to the supervisory authority upon request. Internal risk management procedures include, in particular, client due diligence (“know-your customer”), which requires the identification and verification of customers, persons acting on behalf of customers as well as of beneficial owners of the customer (see also section 1.1 above on the Transparency Register). In addition, staff must be monitored for their reliability and trained regularly on methods and types of money laundering and terrorist financing and the applicable legal obligations under the GWG as well as data protection law, and whistle-blowing systems must be implemented. Furthermore, businesses of the financial and insurance sector as well as providers of gambling services must appoint a money laundering officer (“MLO“) at senior management level as well as a deputy, who are responsible for ensuring compliance with AML rules. Other businesses may also be ordered by their supervisory authority to appoint a MLO and a deputy. Good traders including conventional industrial companies are subject to the AML requirements under the GWG, irrespective of the type of goods they are trading in. However, some of the requirements either do not apply or are significantly eased. Good traders must only conduct a risk analysis and have in place internal AML risk management procedures if they accept or make (!) cash payments of EUR 10,000 or more. Furthermore, client due diligence is only required with respect to transactions in which they make or accept cash payments of EUR 10,000 or more, or in case there is a suspicion of money laundering or terrorist financing. Suspicious transactions must be reported to the Financial Intelligence Unit (“FIU“) without undue delay. As a result, also low cash or cash free good traders are well advised to train their staff to enable them to detect suspicious transactions and to have in place appropriate documentation and reporting lines to make sure that suspicious transactions are filed with the FIU. Non-compliance with the GWG obligations can be punished with administrative fines of up to EUR 100,000. Serious, repeated or systematic breaches may even trigger sanctions up to the higher fine threshold of EUR 1 million or twice the economic benefit of the breach. For the financial sector, even higher fines of up to the higher of EUR 5 million or 10% of the total annual turnover are possible. Furthermore, offenders will be published with their names by relevant supervisory authorities (“naming and shaming”). Relevant non-financial businesses are thus well advised to review their existing AML compliance system in order to ensure that the new requirements are covered. For good traders prohibiting cash transactions of EUR 10,000 or more and implementing appropriate safeguards to ensure that the threshold is not circumvented by splitting a transaction into various smaller sums, is a first and vital step. Furthermore, holding companies businesses who mainly acquire and hold participations (e.g. certain private equity companies), must keep in mind that enterprises qualifying as “finance enterprise” within the meaning of section 1 (3) of the German Banking Act (Kreditwesengesetz – KWG) are subject to the GWG with no exemptions. Back to Top 7.3 Compliance – Protection of the Attorney Client Privilege in Germany Remains Unusual The constitutional complaint (Verfassungsbeschwerde) brought by Volkswagen AG’s external legal counsel requesting the return of work product prepared during the internal investigation for Volkswagen AG remains pending before the German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG). The Munich public prosecutors had seized these documents in a dawn raid of the law firm’s offices. While the BVerfG has granted injunctive relief (BVerfG, 2 BvR 1287/17, 2 BvR 1583/17 – July 25, 2017) and ordered the authorities, pending a decision on the merits of the case, to refrain from reviewing the seized material, this case is a timely reminder that the concept of the attorney client privilege in Germany is very different to that in common law jurisdictions. In a nutshell: In-house lawyers do not enjoy legal privilege. Material that would otherwise be privileged can be seized on the client’s premises – with the exception of correspondence with and work product from / for criminal defense counsel. The German courts are divided on the question of whether corporate clients can already appoint criminal defense counsel as soon as they are concerned that they may be the target of a future criminal investigation, or only when they have been formally made the subject of such an investigation. Searches and seizures at a law firm, however, are a different matter. A couple of years ago, the German legislator changed the German Code of Criminal Procedure (Strafprozessordnung – StPO) to give attorneys in general, not only criminal defense counsel, more protection against investigative measures (section 160a StPO). Despite this legislation, the first and second instance judges involved in the matter decided in favor of the prosecutors. As noted above, the German Federal Constitutional Court has put an end to this, at least for now. According to the court, the complaints of the external legal counsel and its clients were not “obviously without any merits” and, therefore, needed to be considered in the proceedings on the merits of the case. In order not to moot these proceedings, the court ordered the prosecutors to desist from a review of the seized material, and put it under seal until a full decision on the merits is available. In the interim period, the interest of the external legal counsel and its clients to protect the privilege outweighed the public interest in a speedy criminal investigation. At this stage, it is unclear when and how the court will decide on the merits. Back to Top 7.4 Compliance – The European Public Prosecutor’s Office Will Be Established – Eventually After approximately four years of discussions, 20 out of the 28 EU member states agreed in June 2017 on the creation of a European Public Prosecutor’s Office (“EPPO“). In October, the relevant member states adopted the corresponding regulation (Regulation (EU) 2017/1939 – “Regulation“). The EPPO will be in charge of investigating, prosecuting and bringing to justice the perpetrators of offences against the EU’s financial interests. The EPPO is intended to be a decentralized authority, which operates via and on the basis of European Delegated Prosecutors located in each member state. The central office in Luxembourg will have a European Chief Prosecutor supported by 20 European Prosecutors, as well as technical and investigatory staff. While EU officials praise this Regulation as an “important step in European justice cooperation“, it remains to be seen whether this really is a measure which ensures that “criminals [who] act across borders […] are brought to justice and […] taxpayers’ money is recovered” (U. Reinsalu, Estonian Minister of Justice). It will take at least until 2020 until the EPPO is established, and criminals will certainly not restrict their activities to the territories of those 20 countries which will cooperate under the new authority (being: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Germany, Greece, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Portugal, Romania, Slovenia, Slovakia and Spain). In addition, as the national sovereignty of the EU member states in judicial matters remains completely intact, the EPPO will not truly investigate “on the ground”, but mainly assume a coordinating role. Last but not least, its jurisdiction will be limited to “offences against the EU’s financial interests”, in particular criminal VAT evasion, subsidy fraud and corruption involving EU officials. A strong enforcement, at least prima facie, looks different. To end on a positive note, however: the new body is certainly an improvement on the status quo in which the local prosecutors from 28 member states often lack coordination and team spirit. Back to Top 7.5 Compliance – Court Allows for Reduced Fines in Compliance Defense Case The German Federal Supreme Court (Bundesgerichtshof – BGH) handed down a decision recognizing for the first time that a company’s implementation of a compliance management system (“CMS“) constitutes a mitigating factor for the assessment of fines imposed on such company where violations committed by its employees are imputed to the company (BGH 1 StR 265/16 – May 9, 2017). According to the BGH, not only the implementation of a compliance management system at the time of the detection of the offense should be considered, but the court may also take into account subsequent efforts of a company to enhance its respective internal processes that were found deficient. The BGH held that such remediation measures can be considered as a mitigating factor when assessing the amount of fines if they are deemed suitable to “substantially prevent an equivalent violation in the future.” The BGH’s ruling has finally clarified the highest German court’s views on a long-lasting discussion about whether establishing and maintaining a CMS may limit a company’s liability for legal infringements. The recognition of a company’s efforts to establish, maintain and improve an effective CMS should encourage companies to continue working on their compliance culture, processes and systems. Similarly, management’s efforts to establish, maintain and enhance a CMS, and conduct timely remediation measures, upon becoming aware of deficiencies in the CMS, may become relevant factors when assessing potential civil liability exposure of corporate executives pursuant to section. 43 German Limited Liability Companies Act (Gesetz betreffend Gesellschaften mit beschränkter Haftung – GmbHG) and section 93 (German Stock Companies Act (Aktiengesetz – AktG). Consequently, the implications of this landmark decision are important both for corporations and their senior executives. Back to Top 8. Antitrust and Merger Control In 2017, the German Federal Cartel Office (Bundeskartellamt – BKartA) examined about 1,300 merger filings, imposed fines in the amount of approximately EUR 60 million on companies for cartel agreements and conducted several infringement proceedings. On June 9, 2017, the ninth amendment to the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) came into force. The most important changes concern the implementation of the European Damages Directive (Directive 2014/104/EU of the European Parliament and of the Council of November, 26 2014), but a new merger control threshold was also introduced into law. Implementation of the European Damages Directive The amendment introduced various procedural facilitations for claimants in civil cartel damage proceedings. There is now a refutable presumption in favor of cartel victims that a cartel caused damage. However, the claimant still has the burden of proof regarding the often difficult to argue fact, if it was actually affected by the cartel and the amount of damages attributable to the infringement. The implemented passing-on defense allows indirect customer claimants to prove that they suffered damages from the cartel – even if not direct customers of the cartel members – because the intermediary was presumably able to pass on the cartel overcharge to his own customers (the claimants). The underlying refutable presumption that overcharges were passed on is not available in the relationship between the cartel member and its direct customer because the passing-on defense must not benefit the cartel members. In deviation from general principles of German civil procedural law, according to which each party has to produce the relevant evidence for the facts it relies on, the GWB amendment has significantly broadened the scope for requesting disclosure of documents. The right to request disclosure from the opposing party now to a certain degree resembles discovery proceedings in Anglo-American jurisdictions and has therefore also been referred to as “discovery light”. However, the documents still need to be identified as precisely as possible and the request must be reasonable, i.e., not place an undue burden on the opposing party. Documents can also be requested from third parties. Leniency applications and settlement documents are not captured by the disclosure provisions. Furthermore, certain exceptions to the principle of joint and several liability of cartelists for damage claims in relation to (i) internal regress against small and medium-sized enterprises, (ii) leniency applicants, and (iii) settlements between cartelists and claimants were implemented. In the latter case, non-settling cartelists may not recover contribution for the remaining claim from settling cartelists. Finally, the regular limitation period for antitrust damages claims has been extended from three to five years. Cartel Enforcement and Corporate Liability Parent companies can now also be held liable for their subsidiary’s anti-competitive conduct under the GWB even if they were not party to the infringement themselves. The crucial factor – comparable to existing European practice – is the exercise of decisive control. Furthermore, legal universal successors and economic successors of the infringer can also be held liable for cartel fines. This prevents companies from escaping cartel fines by restructuring their business. Publicity The Bundeskartellamt has further been assigned the duty to inform the public about decisions on cartel fines by publishing details about such decisions on its webpage. Taking into account recent efforts to establish a competition register for public procurement procedures, companies will face increased public attention for competition law infringements, which may result in infringers being barred from public or private contracting. Whistleblower Hotline Following the example of the Bundeskartellamt and other antitrust authorities, the European Commission (“Commission“) has implemented a whistleblowing mailbox. The IT-based system operated by an external service provider allows anonymous hints to or bilateral exchanges with the Commission – in particular to strengthen its cartel enforcement activities. The hope is that the whistleblower hotline will add to the Commission’s enforcement strengths and will balance out potentially decreasing leniency applications due to companies applying for leniency increasingly facing the risk of private cartel damage litigation once the cartel has been disclosed. Merger Control Thresholds To provide for control over transactions that do not meet the current thresholds but may nevertheless have significant impact on the domestic market (in particular in the digital economy), a “size of transaction test” was implemented; mergers with a purchase price or other consideration in excess of EUR 400 million now require approval by the Bundeskartellamt if at least two parties to the transaction achieve at least EUR 25 million and EUR 5 million in domestic turnover, respectively. Likewise, in Austria a similar threshold was established (EUR 200 million consideration plus a domestic turnover of at least EUR 15 million). The concept of ministerial approval (Ministererlaubnis), i.e., an extra-judicial instrument for the Minister of Economic Affairs to exceptionally approve mergers prohibited by the Bundeskartellamt, has been reformed by accelerating and substantiating the process. In May 2017, the Bundeskartellamt published guidance on remedies in merger control making the assessment of commitments more transparent. Remedies such as the acceptance of conditions (Bedingungen) and obligations (Auflagen) can facilitate clearance of a merger even if the merger actually fulfils the requirements for a prohibition. The English version of the guidance is available at: http://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Leitlinien/Guidance%20on%20Remedies%20in%20Merger%20Control.html; jsessionid=5EA81D6D85D9FD8891765A5EA9C26E68.1_cid378?nn=3600108. Case Law Finally on January 26, 2017, there has been a noteworthy decision by the Higher District Court of Düsseldorf (OLG Düsseldorf, Az. V-4 Kart 4/15 OWI – January 26, 2017; not yet final): The court confirmed a decision of the Bundeskartellamt that had imposed fines on several sweets manufacturers for exchanging competitively sensitive information and even increased the fines. This case demonstrates the different approach taken by courts in calculating cartel fines based on the group turnover instead of revenues achieved in the German market. Back to Top The following Gibson Dunn lawyers assisted in preparing this client update: Birgit Friedl, Marcus Geiss, Jutta Otto, Silke Beiter, Peter Decker, Ferdinand Fromholzer, Daniel Gebauer, Kai Gesing, Franziska Gruber, Johanna Hauser, Maximilian Hoffmann, Markus Nauheim, Richard Roeder, Katharina Saulich, Martin Schmid, Sebastian Schoon, Benno Schwarz, Michael Walther, Finn Zeidler, Mark Zimmer and Caroline Ziser Smith. Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the issues discussed in this update. The two German offices of Gibson Dunn in Munich and Frankfurt bring together lawyers with extensive knowledge of corporate / M&A, financing, restructuring and bankruptcy, tax, labor, real estate, antitrust, intellectual property law and extensive compliance / white collar crime experience. The German offices are comprised of seasoned lawyers with a breadth of experience who have assisted clients in various industries and in jurisdictions around the world. Our German lawyers work closely with the firm’s practice groups in other jurisdictions to provide cutting-edge legal advice and guidance in the most complex transactions and legal matters. For further information, please contact the Gibson Dunn lawyer with whom you work or any of the following members of the German offices: General Corporate, Corporate Transactions and Capital Markets Lutz Englisch (+49 89 189 33 150), email@example.com) Markus Nauheim (+49 89 189 33 122, firstname.lastname@example.org) Ferdinand Fromholzer (+49 89 189 33 170, email@example.com) Dirk Oberbracht (+49 69 247 411 510, firstname.lastname@example.org) Wilhelm Reinhardt (+49 69 247 411 520, email@example.com) Birgit Friedl (+49 89 189 33 180, firstname.lastname@example.org) Silke Beiter (+49 89 189 33 170, email@example.com) Marcus Geiss (+49 89 189 33 122, firstname.lastname@example.org) Annekatrin Pelster (+49 69 247 411 521, email@example.com) Finance, Restructuring and Insolvency Sebastian Schoon (+49 89 189 33 160, firstname.lastname@example.org) Birgit Friedl (+49 89 189 33 180, email@example.com) Marcus Geiss (+49 89 189 33 122, firstname.lastname@example.org) Tax Hans Martin Schmid (+49 89 189 33 110, email@example.com) Labor Law Mark Zimmer (+49 89 189 33 130, firstname.lastname@example.org) Real Estate Peter Decker (+49 89 189 33 115, email@example.com) Daniel Gebauer (+ 49 89 189 33 115, firstname.lastname@example.org) Technology Transactions / Intellectual Property / Data Privacy Michael Walther (+49 89 189 33 180, email@example.com) Kai Gesing (+49 89 189 33 180, firstname.lastname@example.org) Corporate Compliance / White Collar Matters Benno Schwarz (+49 89 189 33 110, email@example.com) Michael Walther (+49 89 189 33 180, firstname.lastname@example.org) Mark Zimmer (+49 89 189 33 130, email@example.com) Finn Zeidler (+49 69 247 411 530, firstname.lastname@example.org) Antitrust and Merger Control Michael Walther (+49 89 189 33 180, email@example.com) Kai Gesing (+49 89 189 33 180, firstname.lastname@example.org) © 2018 Gibson, Dunn & Crutcher LLP, 333 South Grand Avenue, Los Angeles, CA 90071 Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
The UK Government and the European Commission have issued a joint report setting out the progress of the phase 1 negotiations for the Brexit divorce terms. This report is being put forward with a view to the European Council recommending the commencement of phase 2 negotiations on the future trading relationship between the UK and the EU. It is issued with the caveat that “nothing is agreed until everything is agreed”. A copy of the text of the UK-EU report is here. The key provisions are: Citizens’ rights: All EU citizens resident in the UK and all UK citizens resident in the EU at the date of Brexit will have ongoing rights to remain together with their immediate families (and future children) subject to various restrictions. After Brexit there will be a simple registration system for EU citizens coming to live and work in the UK. Ireland and Northern Ireland: In the absence of alternative agreed solutions (i.e. a satisfactory free trade deal between the UK and the EU), the UK will maintain full alignment with the rules of the single market and the customs union which support North-South cooperation in Ireland; the UK will also ensure that no new regulatory barriers develop between Northern Ireland and the rest of the UK. Financial settlement: There is no specific figure but the broad principles of the financial settlement have been agreed. The UK government currently estimates the bill at around £35-£40 billion. Other high-level provisions relate to ongoing EU judicial procedures, the functioning of the EU institutions, agencies and bodies and police and judicial cooperation in criminal matters. The EU has dropped its demand for the divorce settlement to come under the direct jurisdiction of the Court of Justice of the European Union (CJEU). However, the UK will pay “due regard” to European court rulings on citizens’ rights. For at least eight years, British courts may also refer questions on EU law to the CJEU. The European Council is expected to approve the joint report on 14/15 December 2017. This will mean negotiations can move on to details of a transitional period and the final post-Brexit EU-UK relationship. There are reports that the UK is expected to remain within the single market and customs union for a two year transitionary period. Whilst there is no certainty on what will follow, there is a possibility that the EU and UK concessions on Ireland and Northern Ireland may help the UK to strike a long-term deal on staying in the customs union and single market (the so-called “soft Brexit”). There is still much to be discussed. “We all know breaking up is hard, but breaking up and building a new relationship is harder,” commented Donald Tusk, European Council president. “The most difficult challenge is still ahead.” This client alert was prepared by London partners Stephen Gillespie, Charlie Geffen and Nicholas Aleksander and of counsel Anne MacPherson. We have a working group in London (led by Stephen Gillespie, Nicholas Aleksander, Patrick Doris, Charlie Geffen, Ali Nikpay and Selina Sagayam) that has been considering these issues for many months. Please feel free to contact any member of the working group or any of the other lawyers mentioned below. Ali Nikpay – Antitrust ANikpay@gibsondunn.com Tel: 020 7071 4273 Charlie Geffen – Corporate CGeffen@gibsondunn.com Tel: 020 7071 4225 Stephen Gillespie – Finance SGillespie@gibsondunn.com Tel: 020 7071 4230 Philip Rocher – Litigation PRocher@gibsondunn.com Tel: 020 7071 4202 Jeffrey M. Trinklein – Tax JTrinklein@gibsondunn.com Tel: 020 7071 4224 Nicholas Aleksander – Tax NAleksander@gibsondunn.com Tel: 020 7071 4232 Alan Samson – Real Estate ASamson@gibsondunn.com Tel: 020 7071 4222 Patrick Doris – Litigation; Data Protection PDoris@gibsondunn.com Tel: 020 7071 4276 Penny Madden QC – Arbitration PMadden@gibsondunn.com Tel: 020 7071 4226 James A. Cox – Employment; Data Protection JCox@gibsondunn.com Tel: 020 7071 4250 Gregory A. Campbell – Restructuring GCampbell@gibsondunn.com Tel: 020 7071 4236 Selina Sagayam – Corporate SSagayam@gibsondunn.com Tel: 020 7071 4263 © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
Brussels partners Peter Alexiadis, Jens-Olrik Murach and associate Balthasar Strunz are the co-authors of “The EU Court of Justice rules in favour of restrictions on the use of platforms in a selective distribution system (Coty),” [PDF] published in e-Competition Bulletin March 2018 – II, Art. N 86552.
London partner Stephen Gillespie is the author of "UK Dealmakers are Finally Hearing the City’s View," [PDF] published by Gulf News on September 24, 2017.
France is great again? Many of you have read positive articles on the new government in France and its freshly elected President, Emmanuel Macron. Is it real? First, one needs to understand the context: a quasi-unknown individual a year ago, Mr. Macron has stunned all by winning the first, then second, round of the presidential election, as an "anti-populist", pro-European, candidate. Almost as surprisingly, his party (called "Republic on the Move!"), which has been in existence for less than a year, won an absolute majority (with 350 seats over 577) in the subsequent parliamentary election, held on June 11 and 18, 2017, reducing, for example, the Socialist representatives to 28 from 280 in 2012. This, in turn, means that for the next five years, Mr. Macron has both a mandate and an ability to implement his program. France, in electing him with such latitude, rejected the extreme right (with a Frexit program) and the extreme left (with a very high taxation program). One of Mr. Macron’s key strengths has been his "extreme centrist" positioning, based on the simple concept that necessary policies are neither leftist or rightist ones; they are just common sense and should be supported by all reasonable politicians regardless of their original party. He also promoted a very large number of non-politicians to political positions, thus considerably altering the political landscape. Being an ex-Rothschild banker, Mr. Macron is guided by a resolute desire to "open the country for business" and eliminate the disincentives to investment in France, particularly at a time when Brexit causes potential issues for businesses based in the UK. He also understands the need to act fast, and intends to pass his most emblematic promises, aiming at triggering a supply-side shock and boosting confidence, before the end of 2017. What are these promises? An extensive labor reform to "move the rules of the game" aiming at lowering the unemployment rate to 7% at the end of his term in 2022. Proposed measures include caps on financial penalties for companies sued for firing employees, allowing businesses more flexibility to define internal working rules, merging the various employee representative bodies currently existing in French business organizations to improve social dialogue. To achieve this reform expeditiously, the French Government wants to use a special procedure to pass the measures this Summer without extended debate in parliament. The details of the reform are expected to be announced at the end of August. Strong workers antagonism is likely, but the climate has changed and popular support for movements has weakened. Tax reform aimed at restoring France’s attractiveness: Among the key signals sent to the business community: a decrease of the corporate income tax (from 34.3% today to 25% in 2022), and, as from 2019, the replacement of the tax credit for competitiveness and employment (CICE) by a substantial reduction in the employers’ social contributions. Another aspect of the proposed tax reform will be the replacement of the general wealth tax by a special wealth tax limited to real estate and the creation of a "flat tax" on capital gains and dividends at a rate of about 30%. The purpose of this proposal is to favor financial investments over real estate ones. These long-awaited measures will kick-in as soon as 2018. A 50-billion euro investment program: Although not yet fully financed, this plan will likely rely on the existing program "Investing for the Future" launched by President Sarkozy and on a new wave of privatizations. This program embraces huge investments in training (up to €15bn), supports to the ecological transition, the digitalization of the healthcare system, investments in infrastructures (such as transports) and modernization of the State services, all of which will favor future business fluidity. A large number of these projects will be open for bidding to non-French entities. An additional 10 billion euro "innovation program" is planned to invest into Cleantech, Greentech, AI, all in order to attract and retain start-ups. A new momentum for foreign investments in France After seven years of profound economic crisis, and five years of French bashing due to the former president’s administration, his tax increases and anti-business stance, France now benefits a true shift in perception. These changes have the effect to make France a desirable investment target, especially for business and real estate. Opportunities for foreign investors are relatively cheap, especially given the quality of the administration, education, health and infrastructure and the stability of the political system. France has numerous fundamental strengths including its central location in Europe, excellent communication and transport infrastructure, significant industrial achievements in a wide range of sectors, high productivity, and a well-qualified workforce. All these strengths support opportunities for foreign investments, from the United States and elsewhere. 2017 marks Gibson Dunn’s 50th year in France. With 45 lawyers, whose expertise covers all aspects of business law, such as corporate transactions, restructuring/insolvency, private equity, litigation, compliance, public law and regulatory, technology and innovation, and finance, as well as tax and real estate, our Paris office, is well-positioned to assist all the Firm’s clients as their strategy shifts towards France. Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the issues discussed in this update. For further information, please contact the Gibson Dunn lawyers with whom you usually work, or the following authors in the firm’s Paris office: Bernard Grinspan (+33 1 56 43 13 00, email@example.com) Judith Raoul-Bardy (+33 1 56 43 13 00, firstname.lastname@example.org) © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
Theresa May’s decision to call a snap UK general election has backfired. The Conservatives emerged as the biggest party in yesterday’s UK general election but lost their overall majority. Theresa May’s authority and leadership have been greatly weakened, perhaps even fatally damaged, by the shock result. The Conservatives won 319 (down from 331) seats in the House of Commons. A governing party needs 326 seats out of 650 seats for a majority. The Labour party gained 29 seats, enjoying their biggest increase in the share of the vote since 1945. A so-called "progressive alliance" between them and such of the minority parties as have indicated a willingness to work in coalition with Labour would not be sufficient to command an outright majority in the House of Commons. As leader of the largest party in Parliament, Theresa May has been asked by Queen Elizabeth (as head of state) to form a government, relying on Northern Ireland’s Democratic Unionist Party (DUP) for support. The DUP have won 10 of the 18 Westminster seats contested in Northern Ireland whilst the nationalist Sinn Féin party have won seven. Given that Sinn Féin MPs do not take their seats in the House of Commons, the Conservatives and the DUP should together have 326 out of 643 MPs, giving the two parties a combined majority of nine. Theresa May has vowed to offer a "period of stability" and has said she has no plans to resign. Arlene Foster, leader of the DUP, has confirmed her party’s in principle support for a Conservative-led administration and has committed her party to preserving the Union and bringing stability to the UK. Detailed discussions of the terms of the Conservative-DUP understanding will begin shortly. When Theresa May called the election on 18 April she had a majority of 17 MPs in the House of Commons and was 20 percentage points ahead of Labour in the polls. She called the snap election in the hope of increasing her majority and strengthening her hand in Brexit talks with the EU. But her position has been severely weakened. Her wafer thin majority (taking DUP support into account) will make it even more difficult for her to make the awkward compromises that will be needed to reach a Brexit deal with the other EU member states. It is possible that her leadership position will be challenged by Conservative MPs once an administration has been formed and the new session of Parliament has been opened. Many MPs feel that this was an unnecessary election which has drastically weakened the strength of the Conservative government, and they hold Mrs. May and her closest advisers directly responsible for that. It is possible that a new Conservative Prime Minster could seek a fresh mandate through another general election or that the Conservative-DUP pact could break down such that no government can be formed and a second general election has to be held. Formal Brexit discussions between the UK and the EU are due to begin on 19 June 2017 (which is also the date for the opening of the next UK Parliament). Delays in forming a new UK government, or even a second general election in 2017, could impede these Brexit talks, squeezing an already tight negotiation timetable. The UK government triggered Article 50 (the official legal notification to the EU that the UK is going to leave the bloc) on 29 March 2017. It means that, unless otherwise agreed with the EU member states, the UK will be out of the EU by the end of March 2019 – even if no withdrawal agreement is in place. It is unclear whether Article 50 can be withdrawn once invoked. It is not clear if the UK will stick to the Brexit policy mapped out before the election when Theresa May said the UK would leave Europe’s single market and customs union. There is a possibility that the hung parliament could result in the UK stepping back from the "hard Brexit" stance taken by Theresa May and/or in the EU imposing a softer Brexit on the UK by virtue of the UK’s weaker negotiating position. The provisions in the UK Finance Bill which were deferred because of the election are likely to be enacted later this year. These include the corporate interest restriction rules, the shareholding exemption reforms and the reformed inheritance tax rules for non-UK domiciliaries with interests in UK residential property.  The Fixed-term Parliaments Act 2011 introduced fixed-term elections to the UK Parliament. Under the Act, Parliamentary elections must be held every five years, beginning on the first Thursday in May 2015, then 2020 and so on. However, the Act provides that a snap election can be called when the government loses a confidence motion or when a two-thirds majority of MPs vote in favour.  Subject to final confirmation following Kensington seat recount. This client alert was prepared by London partners Stephen Gillespie, Charlie Geffen and Nicholas Aleksander and of counsel Anne MacPherson. We have a working group in London (led by Stephen Gillespie, Nicholas Aleksander, Patrick Doris, Charlie Geffen, Ali Nikpay and Selina Sagayam) that has been considering these issues for many months. Please feel free to contact any member of the working group or any of the other lawyers mentioned below. Ali Nikpay – AntitrustANikpay@gibsondunn.comTel: 020 7071 4273 Charlie Geffen – CorporateCGeffen@gibsondunn.comTel: 020 7071 4225 Stephen Gillespie – FinanceSGillespie@gibsondunn.com Tel: 020 7071 4230 Philip Rocher – LitigationPRocher@gibsondunn.com Tel: 020 7071 4202 Jeffrey M. Trinklein – TaxJTrinklein@gibsondunn.com Tel: 020 7071 4224 Nicholas Aleksander – TaxNAleksander@gibsondunn.com Tel: 020 7071 4232 Alan Samson – Real EstateASamson@gibsondunn.comTel: 020 7071 4222 Patrick Doris – Litigation; Data ProtectionPDoris@gibsondunn.comTel: 020 7071 4276 Penny Madden QC – ArbitrationPMadden@gibsondunn.comTel: 020 7071 4226 James A. Cox – Employment; Data ProtectionJCox@gibsondunn.com Tel: 020 7071 4250 Gregory A. Campbell – RestructuringGCampbell@gibsondunn.com Tel: 020 7071 4236 Selina Sagayam – Corporate SSagayam@gibsondunn.comTel: 020 7071 4263 © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
The European Central Bank (the "ECB") published its final Guidance on Leveraged Lending Transactions (the "ECB Leveraged Lending Guidance") on May 16, 2017. The ECB first published draft guidelines in November 2016, and the publication of the final ECB Leveraged Lending Guidance followed a period of public consultation, including input from key industry players including credit institutions and market associations. There is a six-month implementation window before the ECB Leveraged Lending Guidance comes into force and will apply in practice. Both the ECB Leveraged Lending Guidance, and the similar guidance that was issued by the US federal bank regulatory agencies in March 2013 (the "US Leveraged Lending Guidance"), have the backdrop of the financial crisis, and the surprisingly strong recovery of both the European and US leveraged finance markets since that time, at their core. The US Leveraged Lending Guidance applies to federally regulated financial institutions in the US only. As competition between credit institutions for leveraged lending business has increased, and more borrower-friendly lending conditions have emerged in Europe – often coming from directly across the pond e.g. the introduction of "covenant-lite" loans – the ECB has been keen to mitigate risk and curtail the exposure of credit institutions within the European leveraged lending market. The ECB Leveraged Lending Guidance has emerged against this backdrop, and outlines the criteria by which the ECB expects banks to assess the credit quality of their so-called "leveraged" transactions, and to monitor any underling risks to their balance sheet. These principles are very similar to those established by the US Leveraged Lending Guidance. In short, the ECB specifies that the underwriting of transactions with a leverage, or Total Debt to EBITDA, ratio (see below) of more than 6.00 times should only be undertaken in exceptional and justifiable circumstances, and that credit institutions should ensure leveraged borrowers have the capacity to fully amortize their debt, or repay at least 50% of the total amount, over a period of five to seven years. Commentary suggests that the ECB expects the ECB Leveraged Lending Guidance to be implemented consistently with the size and risk profile of institutions’ leveraged transactions relative to their assets, earnings and capital. Application and Scope The ECB Leveraged Lending Guidance applies to all "significant" credit institutions supervised by the ECB, each of which is expected to adopt the ECB Leveraged Lending Guidance as an integral part of its internal policies. Whether an institution is "significant" is determined by reference to a number of criteria, but particular attention will be paid to its size, importance to the economy of the European Union or any European Member State, and also the extent of its cross-border activities. This emphasis on "significant" does mean that a disconnect could develop between large-volume arrangers and smaller banks. In addition, the ECB Leveraged Lending Guidance does not apply to non-bank institutions, e.g. direct lenders, and therefore a further divergence between these two sets of institutions is inevitable. To be treated as "leveraged", a transaction must meet at least one of the following tests: (i) where the borrower’s post-debt incurrence leverage exceeds a Total Debt to EBITDA ratio of 4.0 times; or (ii) where the loan or other credit exposure, regardless of the actual "leverage" of the transaction, is advanced to a borrower which is owned or controlled by one or more financial sponsors. Whilst the leverage test aligns closely to the US Leveraged Lending Guidance, the so-called "sponsor test" is not only not quantitative but also inconsistent with the approach taken in the US where an equivalent test does not apply. The two tests above apply strictly to all leveraged transactions — including best efforts deals, club deals, and bilateral lending – although credit institutions are encouraged to apply the ECB Leveraged Lending Guidance to all (i.e. including non-leveraged) transactions. For the purposes of satisfying the leveraged test above, the calculations of Total Debt and EBITDA are key. By way of example, Total Debt applies to total committed debt (both drawn and undrawn), and also any "additional" debt that the underlying loan documentation permits, whether or not such additional debt is ever tapped. This latter point is particularly relevant given the flexibility included within recent leveraged loan documentation to incur additional debt, whether by way of incremental or "accordion" debt, or "side-car" facilities. Ambiguity remains as to whether the ECB Leveraged Lending Guidance applies also to permitted debt baskets. In relation to EBITDA, following the consultation process on the draft ECB Leveraged Lending Guidance (referred to above), certain pro forma adjustments and add-backs to EBTIDA are now permitted to be made. However, such adjustments must be duly justified and reviewed by an independent function within the credit institution – whilst the principle of the adjustments is in line with the US Leveraged Lending Guidance, the independent review is an additional criteria unique to Europe. The ECB has reserved the right to re-assess its position on EBITDA adjustments if it feels that there is a consistent over-zealous application of pro forma "future synergies" or "future earnings", which goes against the mitigation of risk that the ECB Leveraged Lending Guidance is designed to achieve. Consequences The ECB Leveraged Lending Guidance does not apply to credit institutions that do not participate in the Single Supervisory Mechanism Regulation (i.e. the United Kingdom and Switzerland), and there are also a number of exempted transactions. Thus, for example, loans to investment grade borrowers, and project finance, real estate and asset and commodities financing are classified as "specialized lending" and remain outside the scope of the ECB Leveraged Lending Guidance. In addition, the ECB Leveraged Lending Guidance is not legally binding, although the ECB have confirmed that compliance will be enforced through the ongoing supervision of credit institutions. It is difficult to see how a relevant credit institution can avoid incorporating the various parameters into its internal policies, and we expect that most institutions will follow the ECB Leveraged Lending Guidance as a matter of good practice. We will have to wait to see whether or not the Bank of England – possibly post-BREXIT – will follow in the ECB’s footsteps and formalize any UK-specific guidance. In practice, deal statistics in the US show that the leverage constraints following on from the implementation of the US Leveraged Lending Guidance have led to sponsors increasing the size of their equity contributions in leveraged buyouts, although there has been little "improvement" in lending terms (i.e. terms are no more "bank friendly"). In the last couple of weeks since the ECB Leveraged Lending Guidance was published, there has been chatter within the European sponsor community that arrangers now only have a few months to squeeze through highly leveraged deals. Whilst deals of around 6.00 times leverage may still be possible, arrangers have been warned that these instances should remain exceptional, and that any potential exception should be duly justified. It will also be interesting to monitor how the flexibility around a borrower’s ability to incur additional debt is curtailed (or not, as the case may be). In any event, it is inevitable that the second half of 2017 will see leverage multiples again become an increasing focus within the European leveraged finance markets, and it is likely that there will be a fall in the number of buyouts where highly leveraged financing packages are offered – at least from the outset. We may also see an increase in asset-backed and commodities financings, as these financings are likely to be able to offer the same documentation flexibilities as more traditional leverage lending, but will be exempt from any constraints on leverage. Of course, as we note above, the ECB Leveraged Lending Guidance only applies to a portion of institutions active in the European leveraged finance markets, whether by size or geography, and only to bank lenders (rather than non-bank or so-called "direct" lenders). This means there will still not be a level playing field across the market. In addition, the guidance impacts only those deals with "high" leverage – which, whilst headline-hitting for the European leveraged finance press, in reality relates only to a limited percentage of deals by volume. The irony is that now the European market has finally caught up with the US by implementing such ECB Leveraged Lending Guidance, the markets may be about to fall out of regulatory sync again: as part of the review of financial regulation by President Trump, the US Leveraged Lending Guidance could be cast aside… Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Global Finance practice group, or the authors: Stephen Gillespie – London (+44 (0)20 7071 4230, email@example.com)Amy Kennedy – London (+44 (0)20 7071 4283, firstname.lastname@example.org) Please also feel free to contact the following leaders and members of the Global Finance group: Thomas M. Budd – London (+44 (0)20 7071 4234, email@example.com) Linda L. Curtis – Los Angeles (+1 213-229-7582, firstname.lastname@example.org) Aaron F. Adams – New York (+1 212-351-2494, email@example.com) Gregory A. Campbell – London (+44 (0)20 7071 4236,firstname.lastname@example.org) Andrew W. Cheng – Los Angeles (+1 213-229-7684, email@example.com) Darius Mehraban – New York (+1 212-351-2428, firstname.lastname@example.org) © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
The UK prime minister Theresa May has called a surprise general election for 8 June 2017. Earlier this week she won a House of Commons vote by 522 to 13 to override the standard five year fixed term between general elections. Theresa May is hoping the early election will convert her current working majority of 17 MPs in the House of Commons into a much bigger majority (with some predictions of a "landslide" victory). The prime minister says this will strengthen her hand in Brexit negotiations and provide the "strong and stable leadership" the country needs. Brexit negotiations will begin in earnest after the elections in France (the first round takes place on 23 April 2017, with the top two candidates facing each other in a second run-off on 7 May 2017) and Germany (24 September 2017). A Conservative victory will not mean more leverage over the EU. But a strong majority may free Theresa May from unwanted interference during the talks, from both within and outside her party. Theresa May became Prime Minister after David Cameron resigned following last June’s Brexit referendum and without winning an election. If Theresa May can extend her party’s narrow majority in Parliament, she will have consolidated her party’s power and secured an electoral endorsement of her Brexit negotiating stance. The prime minister’s requirement for restrictions on free movement of people may make it difficult for the UK to remain in the EU single market and the customs union. If Theresa May wins a bigger majority, she will claim a personal mandate for her "hard" Brexit; and pro-EU MPs, particularly in the Conservative party, may be increasingly reluctant to oppose her. The House of Lords will still have a "soft" Brexit majority but, without backing in the House of Commons, it will be much more difficult politically and constitutionally for the unelected second chamber to hold the government to account. A strong electoral win will also make it more difficult for MPs to oppose the concessions that Theresa May will inevitably have to make during the complex negotiations with the EU. In particular, it should mean Theresa May is less reliant on those in her party demanding a clean break from the EU no matter the economic cost (the so-called "cliff edge" dreaded by banks and businesses). Unless otherwise agreed with the EU member states, the UK will be out of the EU by end March 2019. A larger majority of Conservative MPs may more readily accept a transitional arrangement at that stage, allowing the UK more time to negotiate whilst accepting interim terms from the EU that are likely to be similar to existing arrangements. Theresa May’s decision to call a snap election means the next UK general election will be delayed from 2020 to 2022. This affords the Conservatives some breathing space. The Conservatives did not want to be negotiating an exit deal with the EU whilst beginning to campaign for the next general election, with concerns that an impending election might put the prime minister "over a barrel" during the final negotiations. Labour, the UK’s official opposition party, has said it will lay out its position on Brexit in its election manifesto. However the party is perceived to be in disarray under Jeremy Corbyn’s leadership and it is widely expected to lose a number of seats to the Conservatives in the June election. There is a risk that the election increases support for independence in Scotland. A majority of voters in Scotland wanted to remain in the EU and Scotland’s First Minister Nicola Sturgeon has said that she will "make Scotland’s voice heard". Another strong Scottish National party performance in the general election will no doubt boost its demands for a second referendum on Scottish independence. That said, the Conservatives currently hold just one seat in Scotland. If the Conservatives manage to gain more support in Scotland on a unionist platform, they will argue Nicola Sturgeon should rethink her independence plans. Theresa May’s leadership has until now been dominated by Brexit. The election campaign will allow Theresa May to set out in full her vision for domestic policy. David Cameron’s previous spending commitments on health, education and state pensions may be revised. The election may also give the prime minister a mandate to roll-back some of the constitutional initiatives introduced in the Tony Blair administration, including the incorporation of the European Convention on Human Rights into UK domestic law and the introduction of the Freedom of Information Act in 2000.  UK Parliament – MPs approve an early general election This client alert was prepared by London partners Stephen Gillespie, Charlie Geffen and Nicholas Aleksander and of counsel Anne MacPherson. We have a working group in London (led by Stephen Gillespie, Nicholas Aleksander, Patrick Doris, Charlie Geffen, Ali Nikpay and Selina Sagayam) that has been considering these issues for many months. Please feel free to contact any member of the working group or any of the other lawyers mentioned below. Ali Nikpay – AntitrustANikpay@gibsondunn.comTel: 020 7071 4273 Charlie Geffen – CorporateCGeffen@gibsondunn.comTel: 020 7071 4225 Stephen Gillespie – FinanceSGillespie@gibsondunn.com Tel: 020 7071 4230 Philip Rocher – LitigationPRocher@gibsondunn.com Tel: 020 7071 4202 Jeffrey M. Trinklein – TaxJTrinklein@gibsondunn.com Tel: 020 7071 4224 Nicholas Aleksander – TaxNAleksander@gibsondunn.com Tel: 020 7071 4232 Alan Samson – Real EstateASamson@gibsondunn.comTel: 020 7071 4222 Patrick Doris – Litigation; Data ProtectionPDoris@gibsondunn.comTel: 020 7071 4276 Penny Madden QC – ArbitrationPMadden@gibsondunn.comTel: 020 7071 4226 James A. Cox – Employment; Data ProtectionJCox@gibsondunn.com Tel: 020 7071 4250 Gregory A. Campbell – RestructuringGCampbell@gibsondunn.com Tel: 020 7071 4236 Selina Sagayam – Corporate SSagayam@gibsondunn.comTel: 020 7071 4263 © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
The UK government has today triggered Article 50 – the official legal notification to the EU that the UK is going to leave the bloc. This means that, unless otherwise agreed with the EU member states, the UK will be out of the EU by end March 2019. The Supreme Court ruled in January 2017 that the UK government could not invoke Article 50 without first obtaining the approval of Parliament. The European Union (Notification of Withdrawal) Act 2017 has now been approved by Parliament and received Royal Assent on 16 March 2017. This Act is now law, and it authorises the Prime Minister to give notice under Article 50. The UK now has two years to negotiate the terms of its new relationship with the EU. This incredibly complex process will involve unpicking 43 years of political, economic, legal and regulatory integration with the EU. A broad outline of the Brexit deal being sought by the UK government was given in a White Paper on 2 February 2017. However the White Paper sets out only very high level aims and is light on any detail. The White Paper states that the UK will not stay in the EU’s single market as it would mean the UK staying under the auspices of the Court of Justice of the European Union and having to allow unlimited EU immigration. But the UK will instead pursue an ambitious and comprehensive free trade agreement and a new customs agreement. The UK Parliament will have to ratify the eventual withdrawal agreement. On the EU-side, the final agreement must be agreed by the Council of the European Union (through a so-called qualified majority vote, being 72% of EU member states representing at least 65% of the EU population) and the European Parliament. In addition, if the final draft is considered a "mixed agreement" that covers issues over which both the EU and a member state have responsibility (e.g., security or foreign policy issues), the agreement will need to be ratified by the parliament of every member state; this means every EU country would have a veto. If no deal is reached within the two-year period, the negotiating period can be extended by unanimous agreement of the European Council. The UK will otherwise leave the EU with no withdrawal agreement in place. A legal challenge has begun in the High Court in Dublin to determine whether Article 50 can be withdrawn once invoked. Tax barrister Jolyon Maugham and others are hoping the Irish courts will make a referral to the Court of Justice of the European Union on the issue. If the CJEU were to rule that Article 50 is revocable, it would enable the UK to reject the outcome of Brexit negotiations should they not prove acceptable to the UK Parliament or voters, and remain in the EU. Scotland’s First Minister Nicola Sturgeon has said that it is "democratically unacceptable" that Scotland faces being taken out of the EU when a majority of voters in Scotland wanted to remain. The Scottish Parliament has voted this week to back Nicola Sturgeon’s call for a second referendum on independence from the United Kingdom (her SNP government won the vote with the support of the Scottish Greens, despite opposition from the Conservatives, Labour and Liberal Democrats). Nicola Sturgeon will now ask for permission from the UK Parliament to hold a second referendum on Scottish independence between the autumn of 2018 and the spring of the following year. That would coincide with the expected conclusion of the Brexit negotiations. The UK government has already said it will block a vote within two years (saying "now is not the time"), but may leave the doors open for a vote after the Brexit deal is done. There is some suggestion that Nicola Sturgeon accepts this position, albeit not publicly. Sinn Fein (the second largest party in the Northern Irish Assembly) has called for a referendum on Northern Ireland leaving the UK and joining the Republic of Ireland. In Wales, Plaid Cymru (the third largest party in the Welsh Assembly, after Labour and Conservatives) has stated that "all options should be on the table" following Brexit. In brief – key players for Brexit negotiations UK Theresa May, UK Prime Minister David Davis, Secretary of State for Exiting the European Union Liam Fox, Secretary of State for International Trade Boris Johnson, Secretary of State for Foreign and Commonwealth Affairs UK Civil Service, including Department for Exiting the EU and Department for International Trade EU The European Council (comprising heads of the 28 member states together with its President Donald Tusk and the President of the European Commission Jean-Claude Juncker) defines the EU’s overall direction and priorities. The Council of the European Union (made up of ministers from member states) negotiates and adopts legislation and concludes international agreements. Didier Seeuws, a Belgian diplomat, has been appointed by the Council to lead its taskforce on Brexit. The European Commission (the EU’s "civil service") supports the Council in undertaking negotiations. Michel Barnier, former Vice-President of the European Commission and former French Europe Minister, has been appointed by the Commission as its European Chief Negotiator for Brexit. The European Parliament (comprising elected MEPs from each member state) scrutinises, amends and adopts legislation and international agreements. The European Parliament has elected Guy Verhofstadt, a former Belgian Prime Minister and MEP, to act as its representative during negotiations. Subject to French (7 May 2017) and German (24 September 2017) elections this year, the French President and German Chancellor are expected to play key roles in the negotiations.  https://www.gov.uk/government/publications/prime-ministers-letter-to-donald-tusk-triggering-article-50  https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper This client alert was prepared by London partners Stephen Gillespie, Charlie Geffen and Nicholas Aleksander and of counsel Anne MacPherson. We have a working group in London (led by Stephen Gillespie, Nicholas Aleksander, Patrick Doris, Charlie Geffen, Ali Nikpay and Selina Sagayam) that has been considering these issues for many months. Please feel free to contact any member of the working group or any of the other lawyers mentioned below. Ali Nikpay – AntitrustANikpay@gibsondunn.comTel: 020 7071 4273 Charlie Geffen – CorporateCGeffen@gibsondunn.comTel: 020 7071 4225 Stephen Gillespie – FinanceSGillespie@gibsondunn.com Tel: 020 7071 4230 Philip Rocher – LitigationPRocher@gibsondunn.com Tel: 020 7071 4202 Jeffrey M. Trinklein – TaxJTrinklein@gibsondunn.com Tel: 020 7071 4224 Nicholas Aleksander – TaxNAleksander@gibsondunn.com Tel: 020 7071 4232 Alan Samson – Real EstateASamson@gibsondunn.comTel: 020 7071 4222 Patrick Doris – Litigation; Data ProtectionPDoris@gibsondunn.comTel: 020 7071 4276 Penny Madden QC – ArbitrationPMadden@gibsondunn.comTel: 020 7071 4226 James A. Cox – Employment; Data ProtectionJCox@gibsondunn.com Tel: 020 7071 4250 Gregory A. Campbell – RestructuringGCampbell@gibsondunn.com Tel: 020 7071 4236 Selina Sagayam – Corporate SSagayam@gibsondunn.comTel: 020 7071 4263 © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
Dubai partner Richard Ernest and associate Aly Kassam are the authors of "Alternative Capital Come Calling in the Region," [PDF] published by Gulf News on March 23, 2017.
The enforceability of the so-called "make-whole" premium–the contractual yield-protection payment included in certain debt documents that is calculated to offset lost future interest payments when term debt is repaid before maturity–has been analyzed in several decisions in recent years. The latest installment in the make-whole case law is the Third Circuit’s recent ruling in the Energy Future Holdings bankruptcy cases. In Delaware Trust Co. v. Energy Future Intermediate Holding Co. LLC (In re Energy Future Holdings Corp.), the Third Circuit held that Energy Future Intermediate Holding Company LLC and EFIH Finance Inc. (collectively, "EFIH") are required to pay the make-whole obligation that was triggered when EFIH opted to redeem outstanding notes as part of its post-petition refinancing. Although the notes were automatically accelerated when EFIH filed for bankruptcy, the Third Circuit found that the note indentures do not cancel EFIH’s obligation to pay the redemption premium in the event of acceleration. An analysis of the Third Circuit’s decision is provided in "Possible Make-Over for Make-Wholes After EFH Decision," an article authored by Gibson Dunn associate Sabina Jacobs that is published in the January 2017 issue of the American Bankruptcy Institute Journal. Gibson Dunn also invites you to The Enforceability of "Make-Whole" Premiums after Momentive and EFH, a complimentary webcast on February 1, 2017 with a panel of seasoned Gibson Dunn bankruptcy practitioners who will discuss the current landscape affecting the recovery of "make-whole" premiums and provide legal and practical guidance in the aftermath of Momentive, Energy Future Holdings, and other key cases. To register for this webcast, please click HERE. I. Summary of the Third Circuit’s Decision in Energy Future Holdings Reversing the decisions of both the district court and the bankruptcy court, the Third Circuit held that holders of first lien and second lien notes are, in fact, entitled to payment of the make-whole premiums that became due when EFIH opted to redeem these notes shortly after filing its bankruptcy petition. Each indenture contains a redemption provision that entitles the holders of the notes to the payment of a make-whole premium if EFIH opts to redeem the notes in advance of the notes’ respective maturity dates. Therefore, the decision by EFIH to redeem the notes before their respective original maturity dates triggered the make-whole redemption premium, notwithstanding the fact that the debt had been accelerated. The Third Circuit distinguished between a "redemption" premium and a "prepayment" premium: linguistically, a "redemption" premium survives acceleration whereas a "prepayment" premium does not. For this reason, the automatic acceleration of the notes did not automatically cancel EFIH’s obligation to pay the make-whole premium triggered by early redemption. That is not to say that a debt document cannot accomplish this result. Indeed, debt documents can explicitly provide that acceleration terminates the availability of any make-whole premiums (including optional redemption premiums). EFIH’s indentures, however, did not contain such language. Following the Third Circuit’s decision, EFIH petitioned the Third Circuit for a rehearing on the issue of whether "redemption" premiums, unlike "prepayment" premiums, may become due after acceleration under New York law. At issue: approximately $900 million in premiums, according to EFIH. Specifically, EFIH requested the Third Circuit to certify this state-law issue to the New York Court of Appeals, or alternatively, hold the petition until the Second Circuit Court of Appeals has decided the Momentive appeal (discussed below). No further decision by the Third Circuit has yet been made. Since the Third Circuit’s decision, EFIH has amended its chapter 11 plan and disclosure statement three times to address the allowance of the make-whole premiums. The Fifth Amended Chapter 11 Plan guaranteed a full recovery of the make-whole premiums to first lien and second lien note holders. The Sixth Amended Chapter 11 Plan provided for the substantial but not total recovery of the make-whole premiums to holders, in connection with a settlement that EFIH struck with the holders. This settlement was described in the Form 8-K filed by Energy Future Holdings Corp. on December 16, 2016 and would have terminated the make-whole appellate litigation. Specifically, (a) holders of the first lien notes would receive either (i) 95% recovery on their make-whole claims if holders of EFIH’s general unsecured claims vote to accept the plan or (ii) 97% recovery if these holders vote to reject the plan; and (b) holders of the second lien notes would receive either (i) 87.5% recovery on their make-whole claims if holders of EFIH’s general unsecured claims vote to accept the plan or (ii) 92% recovery if these holders vote to reject the plan. The Seventh–and current–Amended Chapter 11 Plan no longer includes the settlements with the holders of the first lien and second lien notes incorporated in the Sixth Amended Plan. Instead, the plan provides for a claims reserve to cover the full amount of the holders’ make-whole claims, but also contemplates a "makewhole litigation committee" to continue to vigorously oppose the Third Circuit’s decision. The confirmation hearing concerning the Seventh Amended Plan as it applies to the EFIH has been scheduled to begin on February 14, 2017. II. Summary of the Momentive Decision in the Second Circuit In 2014, the Bankruptcy Court for the Southern District of New York in In re MPM Silicones, LLC ("Momentive"), held that a lender forfeits the right to demand a prepayment premium if the lender has accelerated the loan, unless (i) a debtor has intentionally defaulted to trigger acceleration or (ii) the debt documents contain a clear and unambiguous clause that requires the payment of the prepayment premium notwithstanding acceleration. The indentures in Momentive contain optional redemption provisions substantially similar to the optional redemption provisions contained in the indentures in Energy Future Holdings. Although the make-whole premium at issue arose on account of these redemption provisions, the bankruptcy court applied its analysis of make-whole prepayment premiums interchangeably to the make-whole redemption premium in Momentive, and ultimately concluded that the debtors owed no make-whole redemption premium. In 2015, the District Court for the Southern District of New York affirmed the bankruptcy court’s decision in Momentive and held that the note holders were not entitled to the make-whole premium following the acceleration of the notes. The district court reasoned that to remain effective following acceleration (including the automatic acceleration that was triggered by the debtor’s bankruptcy filing), the operative indentures must clearly and unambiguously preserve the holder’s entitlement to the make-whole premium in the event of acceleration. It is noteworthy that the acceleration in the indenture provided that the "premium, if any" would become immediately payable upon acceleration, yet the district court found this language to be ambiguous. The holders argued that this language must relate to the make-whole premium because the indenture included no other premiums. It is also noteworthy that the district court, like the bankruptcy court, treated prepayment and optional redemption interchangeably. In Energy Future Holdings, the Third Circuit criticized the Momentive decision for unreasonably stretching existing New Yok case law beyond its language. Specifically, the Third Circuit disagreed that the "clear and unambiguous" rule–which was established with respect to "prepayment" premiums–should be applied equally to "redemption" premium or other premiums not styled as "prepayment" premiums. The Third Circuit found Momentive unpersuasive for failing to adhere to the language in the indenture. The Momentive decision is currently pending on appeal in the Second Circuit. Appealing the district court’s ruling, the note holders are seeking, inter alia, to convince the Second Circuit that (a) the acceleration triggered by the debtor’s bankruptcy filing did not cancel the holders’ right to receive the make-whole redemption premium and (b) the holders’ contractual right to rescind the acceleration should not have been prevented by the automatic stay. Arguments in the case were heard on November 9, 2016. Following the Third Circuit’s Energy Future Holdings decision, each side submitted letters to the Second Circuit in further support of their respective positions. The Second Circuit has not yet issued its decision. III. Lessons Learned from Energy Future Holdings and Momentive Based on the current state of the case law across all jurisdictions, we have assembled the followings lessons for borrowers/issuers and lenders/noteholders when negotiating and reviewing debt documents: Provisions Included in Debt Documents Pro Borrower & Issuer(less likely that make-whole premium will be enforced) ProLender & Noteholder(more likely that make-whole premium will be enforced) Make-whole triggered by prepayment. X Make-whole triggered by redemption. X Make-whole is explicitly triggered by "redemption" before the original maturity date, notwithstanding acceleration. X Upon acceleration (including automatic acceleration triggered by bankruptcy filing), all outstanding debt/notes, accrued and unpaid interest, and make-whole premium become immediately due and payable. X Acceleration terminates obligation to pay make-whole premium. X Acceleration explicitly does not terminate obligation to pay make-whole premium. X Make-whole is a "redemption" premium and debt documents are silent about the effect of acceleration on the make-whole premium. X Make-whole is a "prepayment" premium and debt documents are silent about the effect of acceleration on the make-whole premium. X Make-whole is a "redemption" premium and acceleration explicitly terminates right of optional redemption. X Make-whole is a "redemption" premium and acceleration does not affect the original maturity date. X  842 F.3d 247 (3d Cir. 2016).  Id. at 261.  Id. at 254.  Id. at 255-56.  Id. at 259-60.  Id. at 260.  Id. at 261.  Id. at 260.  In re Energy Future Holdings Corp., Case No. 16-1926 (3d Cir. Dec. 15, 2016), Document No. 3112490304.  Id.  Id.  In re Energy Future Holdings Corp., Case No. 14-10979-CSS (Dec. 1, 2016), Docket Nos. 10290, 10291, 10293, 10294.  In re Energy Future Holdings Corp., Case No. 14-10979-CSS (Dec. 28, 2016), Docket Nos. 10446, 10447, 10453, 10454.  Id.  In re Energy Future Holdings Corp., Case No. 14-10979-CSS (Jan. 3, 2017), Docket Nos. 10518, 10519, 10520, 10521.  Id.  In re Energy Future Holdings Corp., Case No. 14-10979-CSS (Jan. 4, 2017), Docket No. 10566.  2014 WL 4436335, at *12-13 (Sept. 9, 2014).  Id. at *11-12.  Id. at *16.  U.S. Bank National Association v. Wilmington Savings Fund Society, FSB (In re MPM Silicones, LLC), 531 B.R. 321, 335 (S.D.N.Y. 2015).  Id. at 336.  Id.  Id. at 336-37.  In re Energy Future Holdings, 842 F.3d at 259-60.  Id. at 257, 260.  Momentive Performance Materials, Inc. v. BOKF, NA (In re MPM Silicones, L.L.C.), Case No. 15-1682 (2d Cir.).  Momentive Performance Materials, Inc. v. BOKF, NA (In re MPM Silicones, L.L.C.), Case No. 15-1682 (2d Cir. Sept. 4, 2015), Document Nos. 61, 64. The following Gibson Dunn lawyers assisted in the preparation of this client alert: Sabina Jacobs, Jeffrey Krause and Alan Bannister. Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following members of the firm’s Business Restructuring and Reorganization and Global Finance practice groups: Business Restructuring and Reorganization Group: Michael A. Rosenthal – New York (+1 212-351-3969, email@example.com) Jeffrey C. Krause – Los Angeles (+1 213-229-7995, firstname.lastname@example.org) Robert A. Klyman – Los Angeles (+1 213-229-7562, email@example.com) David M. Feldman – New York (+1 212-351-2366, firstname.lastname@example.org)Matthew J. Williams – New York (+1 212-351-2322, email@example.com)Sabina Jacobs – Los Angeles (+1 213-229-7381, firstname.lastname@example.org). Global Finance Group: Thomas M. Budd – London (+44 (0)20 7071 4234, email@example.com) Linda L. Curtis – Los Angeles (+1 213-229-7582, firstname.lastname@example.org) Stephen Gillespie – London (+44 (0)20 7071 4230, email@example.com) J. Alan Bannister – New York (+1 212-351-2310, firstname.lastname@example.org) © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
The Supreme Court (the UK’s highest court) has ruled today that parliament must vote on whether the UK can start the process of leaving the European Union. The Supreme Court held by a majority of eight to three that the UK government cannot trigger Article 50 – the official legal notification to the EU that the UK is going to leave the bloc – without an act of parliament authorising it to do so. The landmark decision upholds a High Court ruling handed down last November. The UK government had argued that royal prerogative powers mean MPs do not need to vote on triggering Article 50. The Supreme Court rejected this. Withdrawal from the EU will fundamentally change the UK’s constitutional arrangements because it will cut off the source of EU law: "Where, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through parliamentary legislation." The Supreme Court also ruled that UK ministers are not legally compelled to consult the devolved governments of Scotland, Wales and Northern Ireland before triggering Article 50. The Supreme Court unanimously held that relations with the EU are reserved to the UK government and parliament, not to the devolved institutions. The government’s parliamentary bill on Article 50 is likely to be very short. Whilst MPs will probably be reluctant to ignore last June’s (non-binding) EU referendum result and block the bill, they may seek to impose additional conditions. Labour leader Jeremy Corbyn has said his party would seek to amend it "to make demands on rights, protections and market access". The SNP has vowed to put forward fifty "serious and substantive" amendments to the bill. The Article 50 bill will be given an accelerated passage through both Houses of Parliament. This means the Supreme Court ruling may not change the government’s timetable for triggering Article 50 by end March 2017 (so that the UK would be out of the EU by end March 2019). If the government struggles to achieve parliamentary consensus, the Prime Minister could call an early general election to secure an electoral mandate for Brexit. The Supreme Court did not give its views on whether the UK may change its mind on Brexit, even after triggering Article 50. A legal challenge is expected to begin in the High Court in Dublin later this month to determine whether Article 50 can be withdrawn once invoked. Tax barrister Jolyon Maugham and others are hoping the Irish courts will make a referral to the European Court of Justice on the issue. If the ECJ was to rule that Article 50 is revocable, it would enable the UK to reject the outcome of Brexit negotiations should they not prove acceptable to parliament or voters, and remain in the EU. The full judgment of the Supreme Court is here together with the court’s summary for the media. This client alert was prepared by London partners Stephen Gillespie,Charlie Geffen and Nicholas Aleksander and of counsel Anne MacPherson. We have a working group in London (led by Stephen Gillespie, Nicholas Aleksander, Patrick Doris, Charlie Geffen, Ali Nikpay and Selina Sagayam) that has been considering these issues for many months. Please feel free to contact any member of the working group or any of the other lawyers mentioned below. Ali Nikpay – AntitrustANikpay@gibsondunn.comTel: 020 7071 4273 Charlie Geffen – CorporateCGeffen@gibsondunn.comTel: 020 7071 4225 Stephen Gillespie – FinanceSGillespie@gibsondunn.com Tel: 020 7071 4230 Philip Rocher – LitigationPRocher@gibsondunn.com Tel: 020 7071 4202 Jeffrey M. Trinklein – TaxJTrinklein@gibsondunn.com Tel: 020 7071 4224 Nicholas Aleksander – TaxNAleksander@gibsondunn.com Tel: 020 7071 4232 Alan Samson – Real EstateASamson@gibsondunn.comTel: 020 7071 4222 Patrick Doris – Litigation; Data ProtectionPDoris@gibsondunn.comTel: 020 7071 4276 Penny Madden QC – ArbitrationPMadden@gibsondunn.comTel: 020 7071 4226 James A. Cox – Employment; Data ProtectionJCox@gibsondunn.com Tel: 020 7071 4250 Gregory A. Campbell – RestructuringGCampbell@gibsondunn.com Tel: 020 7071 4236 Selina Sagayam – Corporate SSagayam@gibsondunn.comTel: 020 7071 4263 © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.