ESG litigation – how companies can get ready, respond and resolve claims

Purpose To highlight ESG litigation risks and present an overview of the present landscape of ESG disputes in Europe – with a particular focus on England – and globally. Design/methodology/approach This article provides an overview of ESG factors, how they impact on companies, and potential claims that can arise from ESG issues. It also provides recommendations on how companies can prepare for, respond to, and ultimately resolve ESG disputes. Findings The number of ESG cases that are being brought (and won) by claimants in various courts around the world is rapidly increasing. There is a need for companies to prepare for, respond to, and resolve ESG disputes that they may become party to. Practical implications Companies need to take notice of the growing trend of ESG disputes and claims being brought, and in particular prepare for, respond to, and resolve them. Originality/value Expert analysis and guidance from experienced dispute resolution and environmental lawyers.

Strengthening AML/CFT controls of digital payment token service providers in Singapore

Purpose To raise awareness of money laundering and terrorism financing (ML/TF) controls and regulations in Singapore for digital payment token (DPT) service providers. Design/methodology/approach This article summarizes the key points in the guidance infographic published by the Monetary Authority of Singapore on strengthening the AML/CFT controls of DPT service providers (Infographic). In line with the Infographic, these points pertain to: (1) recent developments in the Financial Action Task Force (FATF) Standards; (2) ML/TF risks in the DPT sector; and (3) an overview of MAS’ measures to address such risks, which include (i) licensing and supervision; (ii) AML/CFT notice and guidelines; and (iii) surveillance. Findings To combat illicit activities in Singapore’s DPT sector, the MAS has introduced AML/CFT measures that are aligned with the FATF Standards. DPT service providers should be cognizant of these regulations in developing their own internal measures. Originality/value Practical guidance from experienced lawyers in the Technology Transactions and Financial Services Regulatory & Enforcement practices.

Understanding regulatory trends: digital assets & anti-Money laundering

Purpose To evaluate the global anti-money laundering regulation of digital assets and cryptocurrencies. Design/methodology/approach This article provides an analysis of macro trends in digital asset money laundering regulation and explores the regulatory frameworks in some of the leading international crypto markets. Findings As the popularity and public adoption of digital assets have grown, global regulators have turned their attention to the risks of anti-money laundering. Monitoring the evolving international regulatory landscape is essential for organizations looking to successfully take advantage of digital asset-related investment opportunities. Practical implications Market participants should understand all applicable laws and procedures before they decide to enter the digital asset market. These considerations can become even more complex as businesses interact with multiple international regulators. Originality/value This article is designed to help investors understand the global anti-money laundering regulatory landscape regarding digital assets, particularly for those institutions interested in diversifying with crypto-related investment opportunities.

“Racing” to the IBOR transition finish line

Purpose Summarize and review the key developments during 2021 relating to transition of the London InterBank Offered Rate (LIBOR) to alternative risk-free rates, in accordance with the guidance of global regulators and market participants. Design/methodology/approach Outlines and explains four key events to date during 2021 that are instrumental to the success of LIBOR transition, including the ISDA 2020 IBOR Protocol and Supplement, the 5 March 2021 announcements by ICE Benchmark Administration and the Financial Conduct Authority, the transition of interdealer swap conventions from LIBOR to SOFR, and the ARRC endorsement of the CME Group SOFR term rate. Findings The global adherence to the ISDA Protocol and Supplement, the successful launch of “SOFR First” and other “RFR First” swaps convention transitions, and the ARRC’s endorsement of CME’s SOFR term rate have given the market the clarity and tools that it needs to complete the transition away from LIBOR by the deadlines fixed by the 5 March 2021 benchmark transition event. Practical implications It now is clear that market participants globally have the resources to, and must, move to adopt alternative reference rates and related operational systems and other infrastructure to cease origination of new LIBOR-linked contracts after 31 December 2021. The ARRC’s endorsement of the SOFR term rate for business loans and related derivatives and securitizations is a critical positive development for the structured finance market. Originality/value Expert analysis and guidance from experienced finance lawyers.

Structuring and financing private equity and venture capital transactions in Luxembourg

Purpose Luxembourg is the jurisdiction of choice for many private equity and venture capital investors/funds. Though the optimum balance of financing instruments in relation to any structure varies according to its particular circumstances, one factor that all Luxembourg domiciled FDI structures have in common is the requirement for an appropriate level of equity investment. This article intends to summarize some of the topics frequently encountered in relation to equity structuring choices. Design/methodology/approach Author details the different steps and choices available to investors and funds. The article offers answers to questions to provide a broad, yet detailed, overview of the process and journey; from selecting the vehicle right through to distributing to investors, governance, and compliance. Findings To avoid an expensive mistake, it is paramount that the private equity or venture capital investors and management team receive detailed advice to ensure: (i) the deal is structured in the most tax efficient manner possible and the commercial deal is suitable for all parties, and (ii) the deal is structured in a manner which is effective under Luxembourg law, for both tax and legal purposes. Practical implications It is important that non-Luxembourg lawyers are able to identify key issues when negotiating the terms of the investment documents, in particular, the articles of association and shareholders' agreement. Originality/value Practical guidance from Luxembourg lawyer specializing in corporate law, mergers and acquisitions, venture capital and private equity transactions.

SEC’s disclosure effectiveness initiative reshapes MD&A disclosure requirements

Purpose This article examines rule amendments issued by the US Securities and Exchange Commission in November 2020, as part of the SEC’s ongoing “disclosure effectiveness initiative”, that revise in significant respects the requirements for financial disclosures presented in SEC filings as Management’s Discussion and Analysis of Financial Condition and Results of Operations. Design/methodology/approach This article provides an in-depth analysis of the rule amendments in the context of contrasting perspectives expressed by the SEC, individual SEC Commissioners who dissented from adoption of the amendments, and market participants regarding the merits of the SEC’s movement away from prescriptive disclosure requirements towards a more principles-based approach to disclosure. Findings Although the SEC’s rules have long reflected a mix of principles-based and prescriptive disclosure elements, the principles-based emphasis in this latest stage of the SEC’s disclosure modernization project accords the managements of filing companies greater latitude to determine whether financial information is material to investors and how such information should be presented. Originality/value This article provides expert guidance on a major new SEC disclosure development from an experienced securities lawyer.

The future of SEC enforcement under the Biden administration

Purpose To examine what to expect from Chair Gary Gensler’s SEC and the new Biden presidential administration following Chair Gensler’s U.S. Senate confirmation on April 14, 2021. Design/methodology/approach Reviews past SEC Chair Jay Clayton’s legacy and Chair Gensler’s prior regulatory actions and focus, and outlines Chair Gensler’s expected initiatives, including a heightened focus on cryptocurrency regulation, investigation of COVID-19-related fraud, and ESG and climate change disclosure. Findings This change will bring forth a Democratic majority at the SEC which, in turn, suggests that the Commission will change its current emphasis on capital formation to focus more on investor protection, rules required by the Dodd-Frank Act, inspections, examinations, and enforcement Practical implications Firms should examine their compliance programs in anticipation of heightened advocacy for investor protection; an increased focus on cryptocurrency and blockchain technology, as well as ESG disclosures with an emphasis on climate change; and an increase in inspections and examinations which will drive more enforcement in the fund industry, as well as increases in initiatives regarding transparency, additional disclosures, and investor protection. Organizations will also benefit by reexamining their existing compliance programs with the advice of counsel as a mechanism to mitigate the risk of potential securities laws violations. Originality/value Practical guidance from experienced securities enforcement and litigation lawyers.

LIBOR transition: challenges for Islamic finance transactions

Purpose To examine the implications of the cessation of LIBOR in the context of Islamic finance transactions and to suggest potential solutions for the Shari’ah-compliant use of near risk-free reference rates (RFRs) in such transactions. Design/methodology/approach Provides an overview of the main regulatory changes by the UK’s Financial Conduct Authority (FCA) to LIBOR, a review of the key details regarding the cessation of LIBOR and specific risk factors, a discussion of core concepts of Islamic finance and the unique challenges that the models face considering the LIBOR reforms, and an outline of several innovative solutions that can be utilized by organizations and institutions to overcome the potential complexities of the LIBOR reforms. Findings The financing component of a seller’s profit margin in a murabaha transaction may be calculated using LIBOR, a forward-looking rate. LIBOR as a financing rate benchmark is being replaced by RFRs, which are backward-looking rates. A possible way to use RFRs in a murabaha transaction might be to recalculate the seller’s profit margin depending on actual RFRs during the financing period with the seller offering appropriate rebates to the buyer. Originality/value Expert guidance from experienced corporate, financing, investment, and Islamic financing lawyers.

The determinants of foreign direct investment: what about the potential of the Arab Maghreb countries?

Purpose The purpose of this paper is to elucidate the main determinants of foreign direct investment (FDI) in the case of the Arab Maghreb countries. Design/methodology/approach We employ a dynamic panel analysis using the General Method of Moments for a sample composed of 105 countries over the period 1985–2018. Findings We show that FDI stability, market size, higher education enrolment, quality of institutions, distance, sharing of common border, and bilateral investment and integration agreements are the main determinants of FDI location. These determinants are neither general. The potential for attracting FDI from AMU countries is poorly exploited. FDI to the AMU is lower than estimated stock. The observed FDI to potential FDI ratio does not exceed 87%. France and Spain are the main investors in the AMU region thanks to historical and cultural links. The FDI from the United States, Canada, Germany, Belgium, and Japan are below what is expected. Originality/value The contribution of this paper is observed on the examining oh the determinants of the FDI in the Arab Maghreb countries. Our study demonstrate that the political stability can decrease investment risk in these countries. The administrations correspondingly require expanding their rules and strategies with union demonstrations which were at the beginning of the departure and closing of several foreign companies.

Guernsey as an investment funds domicile: benefits and regulations

Purpose To explain the benefits and the regulations pertaining to Guernsey as a domicile for investment funds. Design/Methodology/Approach Explains the benefits of Guernsey as a fund domicile, the regulatory regime, and the types of fund vehicles used in Guernsey, registered and authorized. Findings Guernsey is one of the world’s largest offshore finance centers, with a thriving funds industry. The benefits of Guernsey as a fund domicile are substantial, including a proportionate, flexible and competitive funds regulatory regime, a stable political and legal structure, and a wealth of first-class fund service providers. Originality/Value Expert guidance from experienced investment-fund lawyers.