Understand Your Rights. Solve Your Legal Problems
What are the available routes for companies to be listed in Qatar?
This requires five founders at a very minimum and a share capital of at least QAR 40 million which can be in-cash or in-kind shares such as assets or properties owned by the founders which will be evaluated as per the rules of Qatar Financial Market Authority (“QFMA”).
In this case, the Company’s law No.11 of 2015 and the QFMA stipulate certain conditions; among them are: the Company must have been operating for two financial years, and the company must have achieved profits which do not fall below 5% average prior to the two years before transformation. The financial standing of the company will be assessed by an accredited evaluator by QFMA to evaluate the company’s assets and liabilities. After this procedure, the process of transformation can be summarised as : 1) Obtaining QFMA’s non-objection letter for the prospectus and listing; 2) Obtaining approval from the Ministry of Economy and Commerce for the articles of association and memorandum of association; 3) Issuance of Ministerial decision for the transformation; 4) Constitutional assembly invitation; 5) Subscription by the public; 6) Constituent assembly; 7) Appointing board members; 8) Publishing the articles of association in the official gazette; 9) Registering the company in the official register; and, 8) Application for listing in the official Qatar stock exchange.
A Public Shareholding Company is required to be managed by a board of directors compromising of a minimum of five individuals and a maximum of 11
There can be many changes when a company decides to go public; can you expand on common managerial changes?
A Public Shareholding Company is required to be managed by a board of directors compromising of a minimum of five individuals and a maximum of 11 who shall be appointed by the general assembly; one third is required to be independent and their selection will be based upon their expertise and experience. The duration of the independent committee will be a period of three years. The general assembly will be the supreme body of the company and it compromises into an ordinary assembly whose scope of powers are determined by the company’s law No.15 of 2015.
The Board of Directors will be subject to the governance regulations issued by the QFMA. These rules govern the work of the Board and determine its responsibilities and duties. The Board is required to disclose and be transparent in the preparation of financial reports and information related to the Board of Directors.
The risks posed can be limited and avoided by using the company's specialised legal advisers’ advice
What are the risks associated with IPOs?
As for the risks pertaining to public shareholding companies, they are subject to the supervision of two bodies: 1) the Ministry of Economy and Commerce and, 2), The Qatar Financial Markets Authority.
From the above, is there anything that can be done to reduce such risks?
The risks posed can be limited and avoided by using the company's specialised legal advisers’ advice, as they provide all information legally required to be followed by the above competent authorities to avoid any sanctions or administrative violations.
Mr. Al Saad has extensive knowledge and experience in major infrastructure projects, rail projects and large-scale commercial transactions, particularly cross-border transactions and ventures, outsourcing and Public Private Partnership ("PPP") projects in the State of Qatar and abroad. He also specialises in real estate. He has been instrumental in drafting and negotiating agreements for some of the most sophisticated transactions in Qatar.
Pregnancy and new motherhood are times of great joy and great responsibility. A pregnant woman or new mother is responsible not only for her own physical and financial wellbeing, but for the physical and financial wellbeing of her child. Therefore, when a woman is reprimanded or terminated by her employer for being pregnant or becoming a mother, the woman and her baby newborn baby are deeply impacted by the employer’s discriminatory decisions.
Our laws are intended to protect women from the harmful impact of pregnancy discrimination. Title VIII of the Civil Rights Act of 1964 (“Title VII”) as amended by the Pregnancy Discrimination Act of 1978 (“PDA”); Section 15 of the New York State Executive Law, the Human Rights Law, (“NYSHRL”); and Title 8 of the Administrative Code of the City of New York, the New York City Human Rights Law, (“NYCHRL”) make it unlawful for employers to subject women to discrimination in the workplace because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.
Despite these laws, which were implemented for protection, pregnancy discrimination reveals its dreadful impact in many different forms in the workplace. A woman suffers pregnancy discrimination in the workplace when her supervisor, co-worker, client or customer makes offensive, intimidating, or hostile comments or engages in conduct that targets her pregnancy, childbirth, or medical condition related to her pregnancy or childbirth.
A woman also suffers pregnancy discrimination in the workplace when, due to her pregnancy, childbirth, or medical condition related to her pregnancy or childbirth, her employer reduces her work hours, pay, shifts; changes her benefits; refuses to promote her; forces her to take time off, whether paid or unpaid; or disciplines her for taking time off work for pregnancy-related medical appointments or other accommodations. These are some of the most common forms of discriminatory actions that women face due to their pregnancy or childbirth at work.
Moreover, pregnancy discrimination in the workplace is also when an employer refuses to hire her or fires her because of her conditions related to pregnancy or childbirth. These two last forms of pregnancy discrimination are especially devastating for a pregnant woman or a new mother who, upon losing the opportunity to earn or continue earning an income, is faced with the daunting task of figuring out how to earn a living and how to provide her baby with the most basic necessities.
Despite these laws, which were implemented for protection, pregnancy discrimination reveals its dreadful impact in many different forms in the workplace.
Additionally, The NYCHRL, as amended by the Pregnant Workers Fairness Act of 2014 (“PWFA”), requires employers to provide reasonable accommodations to women in the workplace based on pregnancy, childbirth, or related medical conditions, unlike the NYSHRL, which requires employers to provide reasonable accommodations only for pregnancy-related medical conditions, and Title VII, which requires employers to provide reasonable accommodations for pregnant employees only to the extent that non-pregnant employees are provided with the same accommodations.
The New York City Human Rights Commission issued legal enforcement guidance in May 2016 (“Commission Guidance on Pregnancy Discrimination”), which provides broader safeguards for women protected by the NYCHRL. According to the Commission Guidance on Pregnancy Discrimination, employers subject to the NYCHRL, violate the NYCHRL, if they do not engage in a cooperative dialogue with an employee who is in need of a reasonable accommodation for her pregnancy, childbirth, and related medical condition, which includes, but is not limited to: nausea, dehydration, increased appetite, recovery from childbirth, leave, infertility, miscarriage, breastfeeding, post-partum depression, and termination of the pregnancy, or who refuses to provide the employee with the reasonable accommodation, absent a valid undue hardship defense, after engaging in the cooperative dialogue.
The NYCHRL, as defined by the Commission Guidance on Pregnancy Discrimination, demands the kind of protection that women deserve and need with respect to pregnancy, childbirth, and related medical conditions.
If the employee’s request for leave creates an undue hardship for the employer, under the Commission Guidance on Pregnancy Discrimination, the employer must consider an alternative accommodation, which may include a shorter leave, reduced work schedule, or work from home. Per the Commission Guidance on Pregnancy Discrimination, an employer is required to provide certain minor accommodations such as minor changes in work schedule, adjustments to uniforms, water and snack breaks, permitting the employee to eat at her desk, extra bathroom and rest breaks, physical modifications to a work station. Other reasonable accommodations, intended to permit a woman to continue working despite limitations include adjustments of start or end time, reduced or modified work schedule, desk duty or light duty, and transfer to an alternative position.
The NYCHRL, as defined by the Commission Guidance on Pregnancy Discrimination, demands the kind of protection that women deserve and need with respect to pregnancy, childbirth, and related medical conditions. The NYCHRL should serve as an inspiration for the birth and amendment of laws across our country that are necessary for the protection of all working women from unlawful discrimination on the basis of pregnancy, childbirth, and related medical conditions.
While it is not possible to provide an exhaustive list of employment actions that an employer should not take based on an employee’s pregnancy, childbirth, or related medical condition, an employer must remember the basic principle of a treating a pregnant employee or new mother just like all its other employees. As such, by way of an example, an employer should not refuse to hire an employee or change an employee’s position in any way because of her pregnancy, childbirth, or related medical condition, while stating that the motive for the employment action was to protect the employee’s health. Unless the employee requests reasonable accommodation, or the employer believes that the employee is in need of a reasonable accommodation, in which case the employer should start a conversation with the employee about the need for an accommodation, an employer would be engaging in discriminatory behavior if it treats an employee differently from her co-workers because of her pregnancy, childbirth or related medical condition. An employer should also remember that every pregnancy is different and should act in accordance with that understanding.
As the employer, listen to what your pregnant employee is asking for and, when you address her concerns or any requests for an accommodation that she might have, consider only her unique experience and do not compare her with another pregnant employee who may have had very different needs. By way of example, an employer may have a pregnant employee who did not experience the kind of pregnancy-related nausea that results in a need for frequent breaks or time off. However, an employer should not take one employee’s pregnancy experience as the basis for the analysis of another employee’s pregnancy needs. If an employer has another employee who experiences pregnancy-related nausea to the degree that she needs to take breaks or time off, as an accommodation for her pregnancy, the employer needs to address and respond to her unique request, without comparing her to anyone else.
With respect to a working mother’s options after giving birth to her child, once she gives birth, she has a right to a job-protected, twelve-week unpaid leave to bond with her baby, if she works for an employer who is qualified under the Family Leave Act (“FMLA”). Also, in New York, under the recently enacted Paid Family Leave (“PFL’) a new mother can take paid leave to care for her child at any point within the first twelve months of her child’s birth.
As the employer, listen to what your pregnant employee is asking for and, when you address her concerns or any requests for an accommodation that she might have, consider only her unique experience and do not compare her with another pregnant employee who may have had very different needs.
Once an employee returns to work, after her maternity leave, she is protected from differential treatment based on her status as a caregiver of a minor child, under the NYCHRL. Thus, if the employer of a mother of a minor child subjects her to a hostile work environment, a demotion in title or pay, or terminates her employment, because of her status as a caregiver, the employer would be violating the NYCHRL.
Unless a woman works for a covered employer in NYC and is thus subject to the significant protections of the NYCHRL, she is particularly susceptible to discrimination in the workplace based on her pregnancy, childbirth, or related medical condition. When an employer subjects a woman to a hostile work environment, disparate treatment, or a refuses to provide her with a reasonable accommodation, based on her pregnancy, childbirth, or related medical condition, an employer puts the employee and her baby at risk for pregnancy or childbirth complications, due to the employee’s deteriorating physical health, in light of the denial of the accommodation request and the stress caused by the discriminatory acts, as well as financial ruin, if her hours are cut significantly, she is demoted in pay, or is fired. Such devastating treatment of women on the basis of pregnancy, childbirth, and related medical conditions is unacceptable.
Discriminatory acts against women in the workplace must be deterred with stronger, clearer, stricter laws across our country. However, it is the employers that have the practical power for change. With the employers lies the “preventative medicine” approach. If employers train management and non-management employees to abide by the anti-discrimination laws and adopt a zero tolerance approach with respect to the individuals who engage in discriminatory acts, the employer not only does the right thing, which is also required by the law, in protecting its employees against discrimination, but it also protects itself from the inevitable lawsuit by the employee who has suffered at work because of the employer’s failure to prevent and/or remedy the discriminatory acts.
We speak with Konstantin Tahtadjiev, who tells us the differences, the process of applying for such protection, and the advantages they both present.
How do you decide if an industrial design registration is needed, or a utility model?
Significant number of inventors or creators consider the term “patenting” to be applicable to all intellectual property objects which they have invented or created, without bearing in mind that “patenting” actually means protection of inventions only. In that respect, protection by utility models, as we call them the “short-term patents”, require that the subject matter in question must be an invention which is a physical entity which has technical character or in other words - involves technical teaching. Moreover, the invention must concern a technical problem and it must have technical features for which protection is sought and which solve the respective problem. On the contrary, the industrial design registration relates to protection of merely the visible outer appearance of a product or part of it determined by the peculiarities of the form, the lines, the depiction, the ornaments, the colour blend or a combination thereof. Hence, both objects can be easily distinguished by experienced IP attorneys. For example, if a device whose structure and shape have merely new aesthetic features without any new and advantageous technical features, then industrial design protection is sought. Otherwise, we go further with patent or utility model protection.
We can only apply for both IP forms if the device has both new aesthetic features coupled with new and advantageous technical features.
Is it often beneficial for clients to apply for both?
Bulgaria is among the countries which provides protection for inventions by patents and/or utility models and industrial design registrations as well. It is always beneficial to apply for both, but it really depends on the possibilities for each particular case and it must be firstly assessed whether the object in question can apply for both ways of protection. For instance, bearing in mind the above example, we can only apply for both IP forms if the device has both new aesthetic features coupled with new and advantageous technical features.
Are both registrations simple? What complications can arise for either registration?
In practice, both registrations are simple, very fast (takes just a few months) and cost effective which are the features that the majority of our clients seek, being them SMEs or natural entities. Although, both procedures do not involve substantive examination for novelty and inventive step /originality, each procedure has its own pitfalls which can cause serious obstacles for registration. For example, a common mistake with regard to the utility models made by applicants, is the non-disclosure of the inventions in the technical description in a sufficiently clear and complete manner for it to be carried out by a person skilled in the art. A common mistake with regard to the industrial designs concern non-compliance with the image requirements, i.e. providing different views of the same design and each view contains shadows which make the colours look different (black or grey) which usually leads to separating the designs in different applications and paying additional fees for each design respectively.
All forms of intellectual property are intangible assets. The asset is merely a legal right conferred upon the proprietor.
How is a registered utility model a commercial asset for companies?
All forms of intellectual property are intangible assets. The asset is merely a legal right conferred upon the proprietor. The exclusive rights provided by a registered utility model gives its owner the right to prevent or stop others from commercially using the protected invention, thereby reducing uncertainty, risk and competition from free riders and imitators which may be crucial for innovative companies to prosper in a challenging, risky and dynamic business climate. To take the protected invention to market, a company has a range of options: commercializing the protected invention directly; selling the utility model to someone else; licensing the utility model to others; establishing a joint venture or other strategic alliance with others having complementary assets. Bearing in mind that utility model registration is relatively fast, easy and cost-efficient process, some of the key reasons for protecting inventions through utility models include: strong market position and competitive advantage; higher profit or returns on investment; additional income from licensing or assigning the utility model; access to technology through cross-licensing; access to new markets; diminished risks of infringement; enhanced ability to obtain grants and/or raise funds at a reasonable rate of interest; a powerful tool to take actions against imitators and free riders; positive image for your enterprise.
By protecting an industrial design through its registration, the owner obtains the exclusive right to prevent its unauthorized copying or imitation by others.
In this regard, how do industrial design registrations differ?
Similarly to the utility model registration, the industrial design registration also provides exclusive rights to its owner to make, import, sell, hire or offer for sale articles to which the design is applied or in which the design is embodied, but the protection refers only to the ornamental or aesthetic aspects of the product and not to its technology aspects.
By protecting an industrial design through its registration, the owner obtains the exclusive right to prevent its unauthorized copying or imitation by others. This makes business sense as it improves the competitiveness of a business and often brings in additional revenue in one or more of the following ways:
With the legal industry often being criticized for not adapting to evolving modern practices, Zia speaks about how Pakistan could easily be left behind, and how its younger, inspiring lawyers, are often at a disadvantage, due to solo practices and a lack of integration throughout the country.
What challenges did you overcome in order to specialize in the legal industry, on an international scale? Any nuggets of advice to inspiring lawyers?
The foremost challenge for lawyers in Pakistan is the lack of proper opportunity for legal education and professional training. New entrants in the profession are usually not adequately equipped to handle complexities and niceties of the law. Solo practice is still a common mode of doing legal practice here. There are only a few law firms. They may not engage and train with all the lawyers. Many young lawyers lack the opportunity of refining their understanding of the law and legal skills. Thus, they fail to handle important legal matters. This deprives them in many ways in the profession.
However, I preferred working with a Lex Mundi Member law firm in the beginning years of my law practice. It helped me to learn from the experience of senior partners. With this background, I started appreciating the value of teamwork and the new trends of doing legal business. To supplement my law firm experience, I thought to improve my theoretical understanding of the law. In this regard, I conducted research on Constitutional Law at SOAS, University of London, and attended specialized courses at The Hague Academy of International Law. This blend of theory and practice, in fact, has helped me a lot. I have learned how to practice law at the international level. I have also learned to think and write in an appropriate manner enabling me to publish in newspapers and international law journals. My suggestion, particularly to young lawyers, is to remain open to new ways of learning, thinking and practising law. Professional honesty, constant improvement, and hardworking are key to success in the legal profession.
The Pakistani legal system has to respond to global trends in law, business, and dispute resolution. Otherwise, it would hit the country and the legal profession adversely.
Why did you choose to specialize in international law? What is it about this specialism that interests you the most?
Over the years, I have realised that legal practice and principles are not only local. In fact, they are universal. In an increasingly globalised world, domestic legal regimes frequently interact with and are influenced by international law conventions and instruments. For instance, international criminal law, international economic law, international human rights, and environmental law have a huge impact on local legal systems. In today's world, no lawyer and judge can afford to ignore relevance and implications of international law while advising and deciding upon a pertinent legal matter. Personally, I find international arbitration quite interesting. This is relevant to my experience of handling court cases. Pakistan is facing difficulties in international arbitrations. I hope my work would help my country in handling international law disputes more effectively.
Moreover, are there any changes you are advocating for, regarding international law in Pakistan? What challenges are you expected to foresee here?
Yes. My law firm supports a non-governmental organisation named International Law Foundation. ILF aims to promote awareness and compliance of international law in Pakistan and beyond. It intends to help the publication of Pakistan Year Book of International Law. Unfortunately, local lawyers generally lack training and exposure to international law. In fact, they do not get enough opportunity to observe and learn from the proceedings of international law tribunals and courts, as these institutions are not based in Pakistan. Further, in the absence of high-ranking international law research institution, lawyers may not have access to the latest materials. Thus, ILF is looking for opportunities to help young lawyers in Pakistan, in the field of international law and practice.
Prominent Legal Issues in Pakistan:
To ensure justice is served fully, what changes do you think need to be made in Pakistan's legal system?
I consider the following changes in our justice system are necessary for the effective delivery of justice: First, continuous legal education and training should be provided to lawyers. Only those should be allowed to continue law practice who meet specified standards. Second, the superior court judges should be appointed in an open and transparent manner. The Constitution may be amended to make this process competitive and inclusive. Judges should also be effectively accountable in the judicial hierarchy and also to the public through publication of performance of the judiciary. Anonymous data should be made available to researchers and judicial policy makers, to recommend changes in an informed and institutionalized manner. Third, legal services should be insured. At present, litigants do not have any effective remedy and compensation mechanism for professional negligence cases. Lack of professional accountability of lawyers, has contributed in the deterioration of legal professional in Pakistan. Finally, laws and court procedures should be upgraded through revision of law and integration of technology. This would help to deliver inexpensive and expeditious justice to the people.
Moreover, how has the Pakistani legal sector evolved in regards to becoming more progressive, in terms of embracing technology and movements towards becoming a more modern space for those in law and business?
The legal profession in Pakistan, in fact, requires a massive transformation in this regard. The lawyers need to move beyond the traditional business model (i.e. solo practice) and build law firm collaborations to improve the quality, impact, reach and scope of their legal services. New technologies i.e., digital technology, artificial intelligence, legal analytics need to be used in the legal sector. The court procedures may be modified allowing on-line dispute resolution and e- filing of court documents etc. The Pakistani legal system has to respond to global trends in law, business, and dispute resolution. Otherwise, it would hit the country and the legal profession adversely.
It has been reported, and you have also previously spoken about how Pakistan is facing a legal education crisis; what do you think should be done to ensure the Pakistani legal system continues to flourish in generations to come?
The legal education system in Pakistan is facing many challenges. Recently, the Supreme Court of Pakistan has attempted to make some reforms in legal education. For example, SC has prescribed an admission test for law school admissions and regulations regarding the faculty and infrastructure of law schools. These recommendations are appreciated; however, they are not satisfactory by international legal education standards. There should be a high quality test for entry to law schools and the bar; teaching and examination should engage law students/lawyers in sound analysis and legal reasoning skills; continuous legal education and annual audit of lawyers/law firms should be mandatory; and, the regulatory regime for lawyers and judges should be refined and strictly implemented. The performance and proceedings of the Supreme Judicial Council (for the accountability of judges) and Bar Councils (for the accountability of lawyers) may be made public to strengthen our justice system.
Zia Ullah Ranjah is Managing Partner of the Firm. He has more than fifteen years of experience in law practice and law teaching at prominent institutions in Pakistan. He has an interest in constitutional law, corporate law, and international law. He supervises litigious and non-litigious work of the Firm. He is also responsible for business development and professional collaborations.
We have gotten in touch with Luca Daffra, who informs us on appropriate internet use during work hours and how companies can handle cases regarding internet use.
What are the advantages of outlining a policy for internet use in the workplace?
It is essential in many respects to outline a policy on the use of the Internet in the workplace, which should be integrated with some regulations on the use of company IT equipment used by its employees for the performance of their duties. It is required to ensure the employer’s compliance with the statutory regulations regarding personal data processing (GDPR) and, consequently, the proper management of the employment relationship. With regard to the first aspect, these policies play a key role in raising workers’ awareness of the risks associated with surfing the web and the pitfalls that this may entail for company IT systems, hence the need to adopt virtuous conduct.
In addition, these policies have the essential function of making the worker aware, in a transparent manner, about the checks that the employer can perform on navigation data (i.e. storage and verification of log files). This latter function is also of considerable importance from a labour law standpoint, for the purposes of the usability in any litigation regarding disciplinary procedures of the information acquired through the said checks, without prejudice, however, to the need to comply - as I will point out below - the provisions of Article 4 of the Workers’ Statute on work performance checks from remote.
It should be noted that, also in the light of the GDPR which has recently come into force, it is up to the employer to adopt appropriate security measures to ensure the availability and integrity of information and data systems, also to prevent misuse that may be a source of responsibility.
What issues can arise if a policy does not exist, or is improperly implemented?
It should be noted that, also in the light of the GDPR which has recently come into force, it is up to the employer to adopt appropriate security measures to ensure the availability and integrity of information and data systems, also to prevent misuse that may be a source of responsibility. One of these measures is certainly the adoption of the policies in question. Failure to adopt them, as well as failure to implement them effectively, expose the Company to the risk of non-compliance with the GDPR. The failure to establish clear rules regarding the use of the internet and electronic instruments, such as, for example, the provisions concerning which websites may be visited and which may not, as well as the failure to set out prohibitions relative to the download of applications or programmes or the use of social media, or even to provide clear rules for the management of passwords, including those of company's wi-fi network, would expose the computer systems of the company to the risk of attacks and, consequently, to the risk of data breaches.
The internet and new technology have certainly had a major impact on the workplace and the way work performance is carried out. This has had a clear impact on the production of labour legislation.
As regards to the employment relationship, the implementation of the policies is of considerable importance, in order to inform associates about the conduct that the employer expects from them relative to the use of the internet and company IT tools, and to be able to sanction any deviations from them. However, as mentioned above, the provisions of the policy may not be sufficient to legitimately initiate disciplinary proceedings against an employee. In fact, it should be noted that Article 4 of the Workers’ Statute allows the implementation of systems and equipment from which a control of the performance of the work activity can also derive (such as controls on log files, i.e. programmes that filter e-mails on the basis of defined parameters) only providing it is justified by technical, organisational, production or security reasons. For these reasons, the control systems may be installed only with the prior agreement of the trade union representatives in the company or, in their absence or in the event of failure to reach an agreement, with the authorisation of the Territorial Labour Inspectorate (ITL) or, if the installation concerns several offices located in different regions, by the National Labour Inspectorate (INL). Failure to comply with the said authorisation procedure leads - in principle - to the impossibility to avail of information collected through unauthorised systems, and it is also an offence which may be prosecuted.
How have you seen the internet and technology itself, impact the workplace, legally?
The internet and new technology have certainly had a major impact on the workplace and the way work performance is carried out. This has had a clear impact on the production of labour legislation.
On this point, significant changes, for example, were made to the aforementioned Article 4 of the Workers' Statute, where it was specified that the procedure for the installation of tools enabling checks on work activity, as mentioned above, does not apply in the case of tools used by the worker to render their work performance and the tools for recording access and attendance. And so, for example, it has been clarified by the Ministry of Labour, that "PCs, tablets, mobile phones" are to be considered work tools; conversely, computer systems and software not strictly necessary for the performance of the work may be defined as extraneous to such a definition.
More problematic, however, is the question of GPS devices, which according to the INL can be considered as working tools for the purposes of Article 4, paragraph 2 of the Workers' Statute only in the following cases:
- if the systems are installed in order to allow "the actual and effective execution of the work performance", meaning that the execution "is not possible without the use of such tools";
- if the systems are installed because they are expressly required by legislative or regulatory provisions (in this regard, the circular referred, by way of example, to the "use of GPS systems for the transport of cash-in-transit vehicles in excess of 1,500,000.00 euros").
It is essential that the policy clarifies what the employee can do using the company's internet connection and other electronic devices, which the employer makes available to them for the performance of their duties.
Always from the regulatory standpoint, the organisational flexibility made possible by new technologies (i.e. working remotely with laptops, tablets and smartphones, etc..) has been governed by Law no. 81/2017, which regulates smart working as a mode of execution of the subordinate employment relationship characterised by the absence of time or space constraints and the organisation by phases, cycles and objectives, both established by agreement between employee and employer. The said mode helps the worker to reconcile private life and work time and, at the same time, to promote the growth of their efficiency.
The Legislator has been keen to establish that the workers who perform their duties in agile working conditions are entitled to economic and regulatory treatments not inferior to those applied overall, via implementation of collective agreements to the workers who perform the same tasks exclusively within company premises.
The Legislator, however, refers to the agreement between the parties to determine how to ensure the right to disconnection.
Can you outline the main issues such a policy should address?
It is essential that the policy clarifies what the employee can do using the company's internet connection and other electronic devices, which the employer makes available to them for the performance of their duties. In particular, it is necessary to provide:
Failure to comply with these formal requirements will result in the inoperability of the data acquired through these instruments.
What are [legally] unacceptable uses of internet at work?
What is unacceptable in the use of the internet is established by the relevant company policies, which establish what is permitted and what is not. In fact, for example, these policies can just prohibit navigation or limit it to only some sites or even allow it only during breaks. In the absence of policies setting specific rules for the employees, the general duties provided by the Civil Code regarding the diligence of the employee (article 2104 of the Civil Code) and the obligation of loyalty of the same (article2105 of the Civil Code) shall apply: therefore, the use of the internet, which negatively impacts on the correct execution of the work performance may be considered unlawful because, for example, part of the working time is diverted for private purposes.
Can your employer check your email and internet history?
As noted above, article 4 of the Workers' Statute allows the installation of tools which also enable checks on work performance (such as a software that stores navigation log files) only where this is justified by organisational, production and safety reasons and subject to agreement with the RSA or authoriation of the ITL.
Moreover, for the use of data collected in such way in any litigation regarding disciplinary matters, the same article 4 requires the employer to provide employees with adequate information in accordance with article 13 of the GDPR. Failure to comply with these formal requirements will result in the inoperability of the data acquired through these instruments. According to case law, this prohibition does not apply to so-called defensive checks, i.e. the checks performed consequent to a well-founded suspicion that the employee is engaging in illegal conduct that may lead to crime or to financial or non-financial damage even to the image.
The implementation of a disciplinary code is essential to clarify what standards the associates are required to abide by so that they are deemed to properly fulfil the obligations arising from the employment relationship.
Expanding onto other internal regulations: what are common issues you see clients coming to you for advice on?
In addition to these policies, companies often ask me to prepare regulations on the proper management and classification of information and documents, which establish the criteria for classifying information as confidential, confidential or in the public domain.
In addition, I am often requested to draft Codes of Ethics and Conduct.
Recently, there has been a growing demand for regulations governing corporate welfare plans in order to benefit from the more favorable tax regime, compared to that applicable to remuneration, and the exemption from the payment of social security contributions; in this way, companies can guarantee their employees better treatment than the minimum rates set out in the national labour contracts, but with significant cost savings compared to what they would have had to incur in order to grant a monetary equivalent.
In your opinion, what do you think is an ideal disciplinary code if these regulations are not adhered to, which will benefit employers?
The implementation of a disciplinary code is essential to clarify what standards the associates are required to abide by, so that they are deemed to properly fulfil the obligations arising from the employment relationship. This is even more essential when the expected conduct reflects specific needs and/or rules of the employer's organisation, rather than just commonly shared values. For example, if an employer does not want employees to use social media during working hours, an expressed prohibition needs to be provided to that effect, otherwise such conduct can be challenged against the worker only to the extent that it has a real impact on the work performance, because the time devoted to it is excessive; in the event of litigation following up to such circumstances, however, the judge will have the discretion to determine the borderline between a moderate or excessive amount such as to trigger, or not, a sanction for this behaviour.
It is important, hence, that the Disciplinary Code is drafted in a clear manner and establishes the rules to which the worker is required to adhere.
It is also useful for the code to provide, in relation to individual violations, for the applicable sanction, it being understood that, in the event of litigation, it is always the judge who has the final say in assessing the proportionality between the conduct complained about and the sanction applied.
Finally, it should be noted that in order for the Disciplinary Code to have binding effect, it must be displayed in a place where employees have free access.
He summaries the reorganisation process and vital documents businesses ought to be compliant with during such a process.
When companies first show signs of entering bankruptcy, what options do they have in China?
Where an enterprise is unable to repay the interests of commercial bank credit as they become due, this generally shows a significant sign of the enterprise beginning to enter bankruptcy.
When an enterprise commences to irrationally request upstream producers to increase margin and delay settlements with various reasons, or request the downstream producers to shorten payment terms and delay the process of providing the service and goods, as well as commences to cut employee salaries and reduces investment in strategic projects, it is often a sign showing the enterprise is insolvent.
Enterprises in China usually opt to repay original loans by taking out new loans with higher interest rates and get financing by accepting real estate mortgage rates that are much higher than the average rate in the credit market; they also opt to take loans from the private sector, also with a higher rate, until the enterprise is unable to pay off any more. Actually, an increasing number of enterprises tend to get out of the circumstance by filing bankruptcy application within ten years, ever since the implementation of Enterprise Bankruptcy Law in China.
What regulations/documents must the debtor be compliant with, when regarding securities?
Based on the regulation of the Enterprise Bankruptcy Law, Company Law and Contract Law in China, any of the following acts involving debtors’ assets shall be declared invalid within one year before the acceptance of a bankruptcy application by the Court, including:
The act shall be valid where the debtor pays off any individual creditor within the last six months, before the Court accepts the bankruptcy application.
A better option than the aforementioned reorganisation process is to implement pre-reorganisation outside the Court.
On the other side, is there anything creditors can do to secure recovery of any outstanding debt?
During the procedure of bankruptcy, in order to recover the asset under a pledge or a lien, the debtor shall agree a debt settlement or provide a guarantee to the creditor. The value of assets under a pledge or a lien is lower than the value of the debt that is guaranteed; it shall be calculated according to the market value of the asset at the time of pledge or a lien. Where the administrator recover the collateral, it shall report to the creditors’ meeting.
Security rights on specific assets shall be suspended during the reorganisation period. In the case that there is a possibility of damage or reduction in value of the collateral, which threatens the interest of the security holder, the security holder may apply to the Court to resume the right of the security interest.
In addition, secure creditors participating in the creditors’ meeting have their own group to vote on the draft restructuring plan. To resolve the draft restructuring plan, the secured creditor shall settle in full over the security interests on specific assets and the damage due to deferred payments shall be fairly compensated, as long as the security interests are not substantially damaged.
During the procedure of bankruptcy, secured creditors shall pay attention to preserve and improve the value of collateral, and unsecured creditors shall apply to the Court for bankruptcy, in case of the loss of debtor’s assets and illegal settlements.
Can you summarise the restructuring process for businesses? What requirements are needed for reorganisation?
Based on Article 70 of Bankruptcy Law, the following subjects are entitled to apply for reorganisation:
In the reorganisation period, where the Court approved the debtor’s application, the debtor may manage its assets and business under the supervision of the administrator. Under this circumstance, the administrator who has taken over the debtor’s assets and business, shall transfer the assets and business to the debtor.
The administrator or the debtor shall simultaneously submit a draft restructuring plan to the Court and at the creditors’ meeting within six months from the date of the Court’s rule for reorganisation. Where the period has expired, the debtor or administrator may apply for a three-month extension. The Court shall convene a creditors’ meeting for voting on the draft restructuring plan within 30 days from the date of receipt of the draft restructuring plan. If more than half of creditors presenting at the meeting in the same voting group approve the plan and the rights of such creditors represent 2/3 of the creditors’ rights in the group, the draft restructuring plan shall be approved by the group.
The debtor and administrator shall apply for Court approval of the draft restructuring plan within ten days from when the plan was passed. The Court shall make a ruling whether to approve the plan within 30 days from the date of receipt of application; if approved, the restructuring procedures shall be terminated.
The director, supervisor or senior manager who violates the duties of loyalty or diligence, which results in the bankruptcy of enterprise, shall bear civil liability.
Moreover, can you summarize the insolvency process, and when this is a better option than the aforementioned restructuring process?
When a creditor files a bankruptcy application, the Court shall notify the debtor within five days, whereby the debtor may raise the objection to the Court within seven days from the date of receipt of notification. The Court shall make a rule regarding whether to accept the bankruptcy application within 10 days from the date of expiration of the objection period. Under special circumstance, an extension of 15 days shall be approved by the higher-level Court.
The Court shall deliver the notice to the debtor within five days from making the ruling. The debtor shall then submit a statement of status of its assets, a list of its creditors’ rights, a list of its debts, the financial and accounting reports and the statements of payment of staff wages and contribution of social security premium.
Where the Court rules against the acceptance of application, it shall notify the debtor within five days from the delivery of the ruling. The applicant is entitled to submit an appeal to the higher-level Court within 10 days from the delivery of the rule.
The Court shall notify all known creditors and make an announcement within 25 days from the date of acceptance of application ruled by the Court. After the announcement, the administrator shall dispose assets based on the resolution passed by the creditors’ meeting.
A better option than the aforementioned reorganisation process is to implement pre-reorganisation outside the Court. In the case of a large number of creditors and complex circumstances, a bankruptcy liquidation procedure shall be firstly implemented and then an application may be made from the liquidation procedure to reorganisation procedure, which could break through the time limit of reorganisation.
Are Partners of a company or organisation ever liable for the debtor’s financial situation?
The director, supervisor or senior manager who violates the duties of loyalty or diligence, which results in the bankruptcy of enterprise, shall bear civil liability. The aforementioned personnel shall not serve as a director, supervisor and senior manager within three years from the termination of the bankruptcy procedure. Actually, there are little even no cases that such personnel bear civil liability in practice.
Can you share more on how the reorganisation process changes when a foreign entity is involved?
The bankruptcy law regulates judgments or the rulings of a bankruptcy case that affects debtor’s assets within China’s territories, so China’s Court shall make a judgment or rule of recognition and enforcement based on the international treaty China has concluded, or principle of reciprocity, where the application does not violate the basic principles of law, damage national sovereignty and security, public interests and impair the legal rights of creditors within China. In practice, China adopts more open and friendly policies; it recognises and enforces the foreign judgment and rules, although there is neither reciprocity nor bilateral agreements between the respective overseas country and China, even no recognition for judgments or rules made by China’s Court.
In addition, foreign investors involved in the bankruptcy procedure shall be treated equally. Due to language barriers, preparation time for litigation would be given for overseas subjects.
Are there any regulatory changes on the horizon, which will impact the bankruptcy and restructuring sector?
The Chinese government is implementing supply-side reforms and disposing zombie enterprises, which make the Bankruptcy Law play an increasingly significant role in the process of cutting excessive capacities. Based on the guidance of the “Doing Business” report, the Chinese government is carrying out reforms on the recovery rate of creditor’s rights and the rate of the bankruptcy framework strength, which will strengthen the support for bankruptcy practices and adopt special policies for tax and debt-to-equity swaps.
Bankruptcy law amendments have been listed in the legislation plan of the 13th China National People's Congress and the regulation of Bankruptcy law for individual’s bankruptcy is in discussion. In addition, the Chinese Court system is pushing forward the establishment of Bankruptcy Court, and extends the acceptance scope of bankruptcy cases. Moreover, the Court in China has set rescue funds for bankrupt enterprises, has established platforms for releasing bankruptcy information and discussed the establishment of administrator institutes.
Xiuchao Yin, a Chinese lawyer with more than twenty years practice experience, serves as a Senior Partner in Dentons (Beijing Office) and has led the Insolvency, Restructuring and Disposal of non-performing assets teams in the Denton’s China office from 2015.
He speaks with us this month about his role, how he embraces every challenge and opportunity and also expands on some prominent issues regarding the tobacco industry, including illegal trade and taxation policies.
Regulations and Issues in the Tobacco Industry:
With some people having negative attitudes towards tobacco consumption, how do you in your role help eliminate some of the worries, whilst inside the law and making the right decision for the company?
Tobacco remains a controversial product due to its inherent health risks. Despite this, my role ensures these risks are clearly communicated in our marketing and engagement to adults as well as the standards we abide by, in providing products to the adult consumers who have made a clear decision to use them. As a result, my role requires that I constantly demand that the organisation abides by all laws and guidelines required by the countries and regulators we operate in. Compliance with the law is not always hugely popular, yet in realising commercial objectives, all internal stakeholders must be committed to abiding by these laws and external stakeholders must view a clear demonstration of how we intend to continue doing business in a responsible manner, as a good corporate citizen.
It is common knowledge that when a commodity is excessively taxed, consumers resort to the black market.
What are the current taxation policies for tobacco trade in Africa?
The taxation policies for tobacco trade across Africa have been robust in recent years. This is as a result of heightened awareness of tobacco control as a global public health concern among government authorities in the region. These policies have mostly been formulated both at the level of sub-regional economic blocs and at national level. For example, ECOWAS member states took a strong step in tobacco regulation in November 2017 when the ECOWAS Financial Council of Ministers in Abuja announced a plan to increase excise duties on tobacco in a bid to boost revenue and reduce consumption of the product in the sub-region. Part of their resolutions was to commence a draft directive to harmonise excise duties on tobacco products. The new excise duty for tobacco earlier approved by the Nigerian government took effect from 4 June this year. No doubt, tax pressure has been exploited as an instrument of public policy to drive tobacco control. The belief is that the imposition of additional specific excise duties brings about a sharp drop in adolescent smoking.
Illegal tobacco trade is a big threat to the tobacco industry.
What are the disadvantages from a commercial perspective, in regard to the taxation policies, and what do you hope will change in the foreseeable future?
One of the disadvantages is that it might create more vulnerability for the industry. Notably, it may further deepen the problem of illicit trade, which is currently plaguing most economies on the continent and which interestingly has raised concerns from ECOWAS and other regional economic blocs in Africa. It is common knowledge that when a commodity is excessively taxed, consumers resort to the black market. This is particularly the case for the tobacco industry, which is one of the most smuggled and illicitly traded goods in the world. What this implies is that government looses more revenue due to it to illicit tobacco traders.
How does illegal tobacco trade affect your sector?
Illegal tobacco trade is a big threat to the tobacco industry. The growth of the trade has created security, economic and health consequences for the industry. Today, tobacco smugglers have advanced and developed new ways of beating security checks and surveillance and have expanded their illegal activities with increased focus on “cheap or illicit whites”, which are cigarettes that may be legally produced but are later smuggled and illegally traded. Transit space is being increasingly exploited by smugglers to continue smuggling illicit products into the sub-region, which is raising new challenges for governments across the sub-region. There have been reported cases of products manufactured in free trade zones like the United Arab Emirates for instance, where little or no taxes are paid on them and are shipped into West Africa and declared as transit. Apart from these products not usually meeting the cigarette standards in the countries they are manufactured, they do not arrive at countries where they are fraudulently declared at either transit or destination, but are warehoused in remote locations from where they are sold out illegally to the population.
While country-specific strategies can be adopted in dealing with the problem considering its peculiarities across different countries, a well-organised and coordinated international response has proven effective in dealing with the global illicit trade.
What do you think should be done to tackle such illegal trades? Should there be tighter restrictions and regulations?
I think using examples of how to tackle the menace abound in some countries that have managed the situation effectively in recent years. First and foremost, the government must show commitment in combating illegal trades. This can be achieved by aligning with international collaborative efforts to fight the crime; for instance, signing up for international treaties against illicit trade. Interestingly, Nigeria and more African countries are signatories to the WHO Framework Convention on Tobacco Control (FCTC) as well as the ECOWAS protocol to eliminate illicit trade of tobacco products. However, it is not enough aligning with international treaties in fighting illicit trade. The government must be willing to walk its talk by channelling its effort towards it. In recent years, Togo and few other African countries have been proactive in curtailing the trade. Earlier in the year, Togo publicly demonstrated that it would no longer be a transit country for illicit cigarette by burning several consignments of illicit cigarette bound for neighbouring African countries.
While country-specific strategies can be adopted in dealing with the problem considering its peculiarities across different countries, a well-organised and coordinated international response has proven effective in dealing with the global illicit trade. This helps to create channels of cooperation in the investigation and prosecution of criminals. This, I feel, is the most sustainable and long-lasting approach to curbing illicit trade.
A day in the life of Freddy Messanvi
What does a typical day at BAT look like for you?
There is no typical day for me at BAT, each day is unique and brings its own combination of achievements and learnings. This is what makes my role intriguing. I feel it is important to have a fresh outlook when engaging people and delivering daily tasks, as it allows you to bring your difference, every time.
What is the most challenging part of your job, and how do you overcome such challenges?
I prefer to look at challenges as opportunities to learn something different. Being open minded allows me to receive and manage change positively, especially when working in a dynamic and uncertain environment. I find that empowering and developing my team to be alert and aware of the changing business environment while providing them with direction and the tools to manage change is the secret to unlocking the opportunities of my job.
For aspiring lawyers, I would recommend that they have an open mind and take time to experience and explore the various opportunities that exist within the legal framework before choosing an area of specialisation.
Why did you pick this area of law? Why would you recommend it to aspiring lawyers?
I have always had a passion for law, but at the same time I have a very strong business acumen which I developed during my professional journey with British American Tobacco. I started as a Management trainee straight out of law school and I grew through the ranks after experiencing various opportunities in Corporate Affairs, Regulatory Affairs, etc., until I rose to Head both Legal and External Affairs. I guess the combination of the two naturally steered me in the direction of Commercial Law.
For aspiring lawyers, I would recommend that they have an open mind and take time to experience and explore the various opportunities that exist within the legal framework before choosing an area of specialisation. The world is growing and evolving rapidly, in order to remain relevant, we must be prepared to evolve with it!
During her observations as a Court law clerk intern for the late Honorable Judge, Willard Lassers, in the Domestic Relations Division of the Circuit Court of Cook County, Wendy assisted in case development, and documentation which gave her a behind the scenes view into some very traumatic times in people’s lives. Shocked at how often people were not getting proper counsel to get through very critical processes, Wendy began her journey into family law.
The Illinois Domestic Violence Act was passed by the Illinois Legislature in 1982 and was updated in 2012. It is under the Illinois Domestic Violence Act (hereafter “IDVA”) for which we petition for Orders of Protection (or, the “Order”). It can be found in Chapter 750 Illinois Compiled Statutes (ILCS) Section 60/103 et seq.).
The IDVA is intended to protect a person abused by a family or household member, a high-risk adult with disabilities who is abused, neglected, or exploited by a family or household member, any minor child or dependent in the care of such person, and any person residing or employed at a private home or public shelter which is housing an abused family or household member.
The term "abuse" means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.
An Order of Protection may be filed by a person who has been abused by a family or household member, or filed by any person on behalf of a minor child or any adult who has been abused by a family or household member and due to age, health, disability, or inaccessibility, who cannot file the petition themselves. It can also be filed by any person on behalf of a high risk adult with disabilities who has been abused, neglected, or exploited by a family or household member. [1]
The term "abuse" means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation. “Family” or “household member” includes spouses, parents, children, stepchildren, and other persons related by blood or by present or prior marriage, persons who have or allegedly have a child in common or share a blood relationship through a child, persons who have or had a dating or engagement relationship, and persons with disabilities and their personal assistants, and caregivers. [2]
Actions which are sufficient for the Court to grant an Order of Protection cover a wide range of behaviors.
The issue of what constitutes a shared household has been interpreted by the Courts over the years and the Courts have been more lenient in recent times in interpreting this issue. In the case of Glatzer v. Fabianich, the Court found that a same sex couple living together for as little as seven days constituted the sharing of a "common dwelling” under the Domestic Violence Act. [3]
Once the standing requirement is met, the next question is what actions constitute domestic violence. Under the IDVA, a domestic violence action requires a finding of "abuse" to apply for an Order of Protection.
Actions which are sufficient for the Court to grant an Order of Protection cover a wide range of behaviors. Initially, we consider “physical abuse”. “Physical abuse” includes any of these following actions: (i) knowing or reckless use of physical force, confinement or restraint; (ii) knowing repeated and unnecessary sleep deprivation; or (iii) knowing or reckless conduct which creates an immediate risk of physical harm and sexual abuse. [4]
Representing clients in this field can be difficult. There are clients who are so abused that they do not want to recognize the above conduct as abusive.
Other behavior which is sufficient for the Court to grant an Order of Protection is “harassment”. The IDVA defines this very broadly as conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances, would cause a reasonable person distress, and does cause emotional distress to the petitioner. The IDVA gives 6 examples (meant to be illustrative and not all inclusive) of harassment. Those examples include: creating a disturbance at the victim’s place of work or school, repeatedly telephoning the victim’s place of work, home, or residence, repeatedly following the victim about in a public place or places, repeatedly keeping the victim under surveillance by remaining present outside his or her home school, work, car or other place occupied by the victim, peering through the victim’s windows, various forms of concealing or threatening to conceal a minor child from the petitioner, and threatening physical force, confinement, or restraint of one or more occasions. This also covers a wide range of behaviors. [5]
The Interference with Personal Liberty of Another is also conduct which meets the criteria under the IDVA. This is defined as committing or threatening physical abuse, harassment, intimidation or willful deprivation, so as to compel another to engage in conduct from which she or he has a right to do, abstain or to refrain from doing. Lastly, there is willful deprivation which is defined as willfully denying a person, who, because of age, health or disability, requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device or other physical assistance and thereby exposing that person to the risk of physical, mental or emotional harm.
Evidence of abuse is necessary to obtain an emergency, interim, or plenary order of protection.
Since no one ever knows when or if the abuse will escalate or continue, if any of the above conduct set forth below are occurring in the household, it’s time to consider an Order of Protection. The IDVA is drafted in such a way as to allow an individual to obtain an Order of Protection to prevent the harm of physical abuse and/or to prevent continued or escalated imminent harm and/or physical abuse. A person who is experiencing any of the above conduct, should give serious consideration to obtaining an Order of Protection.
Representing clients in this field can be difficult. There are clients who are so abused that they do not want to recognize the above conduct as abusive. Or there are others who are in denial and/or are embarrassed and humiliated by an abusive spouse and do not want to publicize the event. Over the years, I have found persons in this category include many professional persons. Others are afraid pursuing an Order of Protection will harm the spouse or ex-spouse or will cause them to lose their job, which will impact on child support and/or maintenance. Often times it also takes a long time for a client or prospective client to open up and relay the abusive conduct. An experienced attorney must ask the right questions in the right manner for each person and if the signs are there, they need to pursue the matter in an empathetic and patient manner to promote the individual to open up about the abuse. However, even if the attorney is able to do that, often times the individual will not pursue the matter for the reasons set forth above.
The case can be filed in any county where the petitioner resides, respondent resides, the alleged abuse occurred, or where the petitioner is temporarily located
The process to obtain an Emergency Order of Protection involves the preparation of an Emergency Petition for the Order, which also sets forth the specific factual allegations which warrant the finding of abuse by a Judge under the Domestic Violence Act. The attorney must also prepare a proposed emergency Order of Protection, a summons for the Respondent and complete other necessary forms. The Petition must also include the remedies being requested of the Court, some of which are not available at hearings for Emergency Orders of Protection, but all remedies you want to pursue should be included here. Child custody and child support are two of the remedies not available in emergency orders, (only possession of the minor children is available). However, you should still request this remedy in order for the Court to hear it at the hearing on the interim and plenary order. [6]
Evidence of abuse, as discussed above, is necessary to obtain an emergency, interim, or plenary Order of Protection. Good evidence can be marks on a person's body proving an act of physical abuse occurred. A person should be encouraged to take pictures of these marks. For such injury and other injuries, the individual should also be encouraged to obtain emergency care and/or care of a doctor and then there will be medical records as well as potential professional testimony available. Mental injury is more difficult to prove, but going to a mental health professional can also be utilized. Inquire if there are witnesses or cameras in public places where incidents took place. It is also important to encourage clients or potential clients to call the police at the time of the incident and try to press criminal charges. An arrest of domestic battery will require the case to be prosecuted by the State, and the State will be obtaining evidence to support the incident of abuse as well.
Orders of Protection, whether emergency, interim, or plenary, are not supposed to be used as a vehicle to obtain custody.
In order for the Court to determine that the matter is an emergency, it is necessary to proceed within a very short period of time after the alleged incident of abuse occurs. It is recommended that it be pursued no more than a week after the incident, if possible; otherwise there is a risk that that Court will find that the matter is not an emergency and/or that there is no factual basis to believe that imminent harm and/or risk of further harm is warranted.
The case can be filed in any county where the petitioner resides, respondent resides, the alleged abuse occurred, or where the petitioner is temporarily located if they left the residence to avoid further abuse and could not obtain safe, accessible, and adequate temporary housing in the county of that residence. [7] The rules of civil procedure are applicable in Order of Protection proceedings.[8]
In most cases, prior notice to the abuser is not provided for the emergency hearing and the hearing will be on an ex-parte basis. The rule is that if prior notice will cause a jeopardy of harm or injury to the petitioner or other person sought to be protected, then notice is excused. [9]The petitioning party needs to be present for the emergency hearing and will have to be prepared to testify as to the factual allegations which serve as a basis for the Court to find abuse under the IDVA for the Court to issue the Emergency Order of Protection. The abuser will have to be served with summons by a sheriff, or in some cases, by a process server if approved by the Court. The Emergency Order may provide for exclusive possession of the household or residence by the petitioning party, if the Court determines that the presumption of hardships favors the granting of exclusive possession and it is necessary to protect the individual and/or children from further abuse. The Court will require the return date for the hearing on the further extension of the Emergency Order of Protection to be within 21 days of the entry of the Emergency Order of Protection. Until the alleged abuser is served with the Order, the Court will have to continue the Emergency Order of Protection for an additional 21 days. Once the alleged abuser is served, that person can request a rehearing as early as within two business days or wait until the case comes up for hearing on a Plenary Order of Protection. The Court can also grant an Interim Order of Protection for 30 days, or it can be granted by agreement of the parties once the alleged abuser has been served and appears but is either not ready to participate in a Plenary hearing or for some other reason is not able to proceed to a Plenary hearing.
A Plenary hearing is a full, evidentiary hearing requiring due process to the accused. At the end of a full evidentiary hearing, if the Court finds by a preponderance of the evidence that the abuse occurred, the Court may enter a Plenary Order of Protection for a period of up to two years against the accused.[10]
Orders of Protection, whether emergency, interim, or plenary, are not supposed to be used as a vehicle to obtain or modify child custody. Unfortunately, the authority and ability of the Court to award “possession and control” of the minor children under an Emergency Order of Protection and to order custody in a Plenary Order of Protection, can have a long-term effect on later actions related to parental allocation between the parties in a dissolution of marriage, legal separation or parentage action. These orders often affect the eventual permanent Orders of Parental Allocation. Persons have abused and used Orders of Protection as a mere tactic to gain possession and control of the minor children at the beginning of a pre-decree dissolution or parentage action or to gain an advantage in a post decree action. The Illinois Courts have made clear that Orders of Protection are not to be used as a vehicle to obtain custody and are not a proper method of changing or determining child custody, now termed, “Parental Allocation”. [11]
A person served with a Petition for an Order of Protection should not ignore or take lightly the Petition and the Emergency Order, as there are far reaching effects of an Order of Protection being in place against a person. Once any type of an Order of Protection is entered, whether it be Emergency, Interim or Plenary, the Order is placed in the Law Enforcement Assistance Data Service, known as LEADS, a national data base used to provide information to law enforcement on individual “offenders”. This data is available for any background checks the respondent may be subject to, for employment or other purposes. It can lead to an application for a Firearms Owner’s Identification Card being denied. It can affect the renewal or granting of professional licenses in areas where the respondent would be in charge of persons who would qualify as, “at risk”; such as, licenses for certain health care providers, licenses to carry a gun and security jobs, law enforcement jobs, certain driver jobs, and other types of employment. Criminal convictions of domestic abuse can also cause significant problems with such licenses and jobs.
When a criminal case is underlying, defending an Order of Protection can be more difficult.
Defending the Petition is essential to limit the impact it will have on your client’s life if you are representing the Respondent. Unfortunately, there are many situations where a spouse or ex- spouse, or the dad or mom in a paternity case, will provoke an incident and use it to improperly obtain an Order of Protection. When the allegations are trumped up or are not accurate, a contested hearing of the action needs to be pursued by the attorney representing the Respondent. If a divorce or legal separation has not yet been filed, the filing of such an action will allow the attorney to pursue to consolidate the case into the divorce or legal separation action. In the venue of the domestic relations division, there are many more options than in Domestic Violence and criminal Court and they should be pursued. Domestic Violence and criminal Courts are not equipped to deal with parenting and other issues so critical to the life and livelihood of the Respondent and the issue of parental allocation in a divorce or legal separation case. Particularly because the Respondent's parenting issues are often impacted by the Order of Protection, it is necessary that the attorney takes a strong stance at the onset to force a trial or obtain an agreement to terminate, vacate, and / dismiss the Order of Protection. This kind of negotiation can also be in favor of a temporary restraining order which will govern the conduct of both parties and put your client back on an equal footing with the other spouse for parenting and other issues in the case. It may enable the Respondent to come back to the marital home and/or enable another peaceful status quo to be established which will not endanger the Respondent's livelihood, professional license, parenting and other critical issues of the case. There are also times when marriage counseling and/or co-parenting or family counseling can be considered. This provides the parties to have an opportunity to explore resolutions and to finally deal with some of the underlying problems of the marriage as well as anger management issues, drug or alcohol treatment, and/or the need for therapy and counseling for the parent, spouse, and/or children involved. In some cases, this can also lead to reconciliation of the marriage or relationship.
When a criminal case is underlying, defending an Order of Protection can be more difficult. In a criminal case, the burden of proof is beyond a reasonable doubt, contrasted to an Order which is only a preponderance of the evidence. An attorney should not have their client testify in an Order of Protection hearing when there is a criminal case pending, since it is much easier to obtain a finding of abuse in the civil order of protection hearing, than in the criminal case and you may be jeopardizing your client’s interests in the criminal case to allow such testimony in the civil case. In the criminal case, if the case cannot be dismissed, and particularly if the Respondent is guilty, one can explore the reduction of the charge to a misdemeanor battery or other lower misdemeanor charge and the Respondent can agree to a plea of guilty and to go to anger management and/or other therapy and obtain supervision, which is not available in a domestic battery case and will not jeopardize the Respondent's professional license or job.
The most important qualities to look for when seeking an attorney to represent you to either seek an Order of Protection or defend against one are extensive experience in family law litigation, in general, and in dealing with litigation of Orders of Protection in particular. The extensive experience in family law and in representing clients in order of protection litigation should provide the attorney with the ability to determine the best strategy for the client under the specific individual circumstances. There are many options and a client needs this kind of highly experienced professional to assist in the determination, and execute what is needed to carry it out to represent the client’s best interests.
If you are representing the petitioner, you need to take a strong stance to best protect your client from any further abuse or jeopardy to them and/or the children involved.
To achieve the best results for your client you need to know what the reasonable goals of the individual client are, after you have educated the client as to what can reasonably be accomplished. An attorney also needs to remain flexible throughout the process while also being empathetic, objective, and directive with the client to properly guide the client. This is the case whether it regards preparing and going to trial or pursuing negotiations for a restraining order, or other solutions and remedies to meet the often-changing nature of the situation as it unfolds, while being always ever conscious of the impact the Order of Protection will have on parenting and all other issues involved in a divorce or legal separation.
If you are representing the Petitioner, you need to take a strong stance to best protect your client from any further abuse or jeopardy to them and/or the children involved. If there is clear and repeated abuse, a restraining order may not be appropriate and going to trial and obtaining a Plenary Order of Protection may be what is needed to best protect the interests of your client and the children involved, as well as other remedies in domestic relations divisions, particularly if drugs or alcohol abuse is also involved.
[1] 750 ILCS 60/201.
[2] 750 ILCS 60/103 and 201.
[3] Glater v. Fabianich, 252 Ill. App. 3d 372, 625 N.E. 2d 96 (1st Dist. 1993.
[4] 750 ILCS 60/103.
[5] 750 ILCS 60/103
[6] 750 ILCS 60/202, 203, 210 et seq.
[7] 750 ILCS 60/209.
[8] 750 ILCS 60/205.
[9] 750 ILCS 60/217.
[10] 750 ILCS 60/210-219.
[11] In Re: Marriage of Paclik, 371 Ill. App. 3d 890, 864 N.E. 2d 274, (5th Dist. 2007), Radke ex. Rel. Radke v. Radke, 349 Ill. App. 3d 264, 812 N.E. 2d 9 (3rd Dist. 2004) with many recent relevant opinions as unpublished under Rule 23-ie. In Re; Marriage of Yost, 2018 IL App (4th) 180283-U, 2018, Ibisevic v. Ibisevic 2016 IL App. (2d) 151179-U, 2016
Wendy R. Morgan is the Founder, Owner, and CEO of The Law Firm of Wendy R. Morgan, established in 1981. Judges and attorneys have praised Wendy for her ardent advocacy and her ability to “find the angle” in even the most difficult and complex cases and when all other lawyers fail. Wendy is an expert and experienced litigation attorney. Wendy is also an extremely skilled negotiator; successfully negotiating favorable settlements for untold numbers of clients over the years. Wendy is also known for her compassion for her clients and the ability to know what they need and how to successfully strategize to accomplish their goals.
Divorce and other family issues can turn a person’s world upside down. The fight determines how life is going to be when it’s all over. It is a very difficult time and proper support is critical. This means educating clients about every option at their fingertips and then helping them to make the best, most educated decision for themselves and their families. Detailed evaluation and full disclosure are so important when someone is about to start the process of going through a divorce, order of protection or other family law issues. Wendy offers clients a complete analysis of their case to provide them a full understanding of all of their rights, choices, and possible outcomes that helps drive costs down. The firm also takes pride in an ability to take on emergency and extremely complex cases and situations to find reasonable solutions and assist in determining a status quo for the situation at hand.
What are the common reasons to why [foreign] companies will establish a business in Hungary?
There are several common reasons to why foreign companies establish a business in Hungary. Being in the heart of Central Europe, a region which now works as a catalyst for the growth of the European Union, it certainly has a geographical advantage. Besides location, the well trained labour force and foreign investor friendly environment has always attracted investors right from the fall of the communist regime. Historical reasons should also be mentioned as one of the key factors, as a result of which Hungary has always been a preferential choice for Austrian and German companies to establish a business abroad.
Apart from the above reasons, the ever ruling governments, regardless of their political sides have always spent great attention on developing the infrastructure of the country to promote a better investment environment and also to attract investors not only to the capital, Budapest, but to every region of Hungary. In recent years, the government also attempted to attract foreign investors by introducing very low corporate income tax level and enacting a flexible Labour Code. Large investments also receive additional support or even special legal treatment by the government and governmental agencies.
In general, the legal environment is investor friendly and foreign investors are always welcomed.
How do you assist clients as such?
In most cases we start to assist our foreign investor clients even before they create their local business. Such assistance includes, among others, an introduction to the country by preparing summaries of applicable local laws or even discovering “up for grab” benefits that a potential investor may receive on the basis of choosing Hungary as a place to invest. All of these activities are to assist clients in their decision making and to create and start their local business, in order to be able to act quickly once the decision has been made.
Companies in Hungary, regardless of their corporate form, shall be registered with the competent Court of Firms. Therefore, in regard to setting up a local business, we assist our clients by preparing all the necessary corporate documents that are needed for the registration of a local company. If requested, we also draft the contracts and prepare and proceed with the fillings that are necessary to the commencement of the local operation, including, among others: licensing, construction and employment agreements, or vendor and sales contracts. Once the local business has been established, our role varies on the basis of the clients’ needs. Depending on the request of our clients, we are involved in the day-to-day legal issues or we provide legal assistance on a project based basis.
Accordingly, trading into Hungary is very much based on the principles of EU law. As for companies seated out of the European Union the common administrative and customs rules shall apply for trading into Hungary.
What do these companies need to prepare for? What regulations should your clients be aware about?
In general, the legal environment is investor friendly and foreign investors are always welcomed. Hungary is part of the European Union and has approximated its laws to the EU laws in full, which makes it easier to establish a business. Creating a local company is fast and easy. In most cases, the most time-consuming part of setting up a company in Hungary is to get the founding documents duly executed, notarized and apostilled and returned.
From a practical point of view, it should be mentioned that like in all other countries certain activities are subject to a licence or concession in Hungary. In general, obtaining such licence rarely has unusual conditions that need to be fulfilled. Conditions are all set by law, however, it is well advised to check the practice of the competent licensing authority as to its interpretation on how such conditions could be fulfilled.
Interpretation of the applicable laws given by the authorities could be surprising and may cause unexpected risks in the local operation. Notably, the practice of the Hungarian Taxation Office and the supervising administrative courts in Hungary are extremely strict and the European Court of Justice often finds the interpretation of EU tax laws in Hungary excessive.
Hungary also has a strict approach to consumer rights. It could be said that to some extent the requirements set by the law making bodies in Hungary to protect consumer right are much more protective for the consumers, than in other EU countries. Such a strict and protective approach is reflected in the practice of the government agencies responsible for consumer protection.
Besides some strict approach of certain public administrative bodies, on the other hand, in recent years the government and public administrative bodies have been continuously making considerable efforts to speed up and simplify administrative proceedings. In most cases, filings can be done or even may only be done by electronic means and statutory deadlines to proceed are better respected.
Another positive aspect for investors is that the Central Bank, through certain programmes and the government through state owned banks, make vast financial resources available for investors on low interest rates. State sponsored investment programmes are also frequently available.
Certainly, changes to the regulatory regime are often referred to as a challenge that both foreign and local companies face in Hungary.
How can companies trade into Hungary?
As aforementioned, Hungary is a member of the EU. Accordingly, trading into Hungary is very much based on the principles of EU law. As for companies seated out of the European Union the common administrative and customs rules shall apply for trading into Hungary.
Therefore, free movement of goods and services in granted local presence is always well advised. Instead of providing cross border services to Hungary, creating a local subsidiary and setting up a strong local management with the involvement of executives of the parent company, may prove to be practical and beneficial.
As for the future we expect further laws to be introduced to promote foreign investments in Hungary.
What reports do you assist your clients with?
Mostly we provide reports to our clients on the changes of applicable Hungarian law. If requested, we also provide our clients with updates on the changes of relevant court practice, regardless of the fact that Hungarian procedural law - except for some guiding decisions of the Supreme Court -, does not recognise case law. This later is helped by the fact that most of our partners do litigation and arbitration. In general, we believe that the assistance and the service that we provide to our clients is more effective if we have adequate practice in court, so we can have a direct and first hand experience of the understating and the approaches of the courts regarding certain risks and challenges that the our clients may face in the course of their operation in Hungary.
What common challenges do foreign companies face when setting up in Hungary?
Certainly, changes to the regulatory regime are often referred to as a challenge that both foreign and local companies face in Hungary. These changes could happen very quickly and very dramatically and could considerably affect the day to day operation and the profitability of complete industries. Although it is not specifically a legal issue, it should be mentioned that the unemployment rate is just above 3%, which at one hand reflects the strength of the economy, but on the other hand, at least in certain professions, it results in shortages of adequate labour force.
What changes do you expect that may affect foreign companies?
As for the future we expect further laws to be introduced to promote foreign investments in Hungary. The subject of these laws could be to create shorter and simple administrative proceedings and more flexible labour conditions. We also expect new laws and measures to attract more investments targeting local resources in the field of research and development and informational technology.
Stanka Gergely is one of the founding partners of BPSS Law Office. His main areas of practice are dispute resolution, corporate law and banking and finance. He is also listed as an arbitrator on the panel of the Permanent Court of Arbitration of the Hungarian Chamber of Commerce and Industry for banking and financial services matters.
We speak with Ali Ceylan, who discusses the process and considerations that need to be thought out, when going from public to private.
What are common reasons to why companies go private?
Besides a few reasons, such as having to go private as a pre-condition within a transaction of a sale (mergers, acquisitions), or keep being a target for speculators due to shallow trade volume of shares, I personally believe the main reason companies in Turkey want to go private is the vast load of procedures that companies are subject to by virtue of concerning regulations. When you add the narrow and strict interpretation of regulations by the Capital Markets Board of Turkey (“SPK”) on top of the procedures I mentioned, managing investor relations alongside the relation with SPK becomes costly and time consuming. There are many stories about companies that regret going public. Companies may be subject to administrative, civil and sometimes even criminal proceedings, for example, if the share value of a company decreases even though such loss may have a legitimate and reasonable explanation.
When is a company ready to go from being public, to private? What boxes must they tick?
The process of going private is governed by the Communique no II-27.2 about Squeeze-out and Sell-out Rights in Companies and the Communique no II-23.1 on Common Principles Regarding Material Transactions and Right to Sell-out. The public announcements, determining the purchase price, applications to the SPK and the Borsa Istanbul (Istanbul Stock Exchange) for required approvals, board resolutions need to be taken, gathering the general assembly meeting and securing the sufficient funds, are main actions and considerations that need to be considered before going to private.
Even though the company wants to go private, if 98% threshold cannot be reached, the majority shareholders may end up spending a certain amount of money, but not be able to have the company be delisted from the stock exchange.
What are the regulatory requirements involved in this process?
The share percentage threshold for turning a company from public into private is 98%. The offer made to the investors to buy their shares from a price (determined by the Communique) shall eventually allow the offering shareholder or shareholders making a joint offer (“Offering Shareholder”) to reach 98%. The share price is calculated by taking the arithmetic average of the weighted average price of the stock exchange within 30 days before the public disclosure of the transaction.
The decision of going private should be approved at the general assembly meeting of the company by the shareholders with voting rights. The approval decision requires affirmative votes of the majority of the attending shareholders if more than 50% the shareholders are present in the general assembly meeting. If less than 50% of the shareholders are present in the meeting, 2/3 of the attendees’ affirmative votes are required.
After the public announcement, the shareholders willing to exercise their sell-out rights have three months to apply to the company. The Offering Shareholder shall notify the shareholders that made such application that it is exercising its right to squeeze-out. Shareholders, who do not respond to the offer within three months, can still sell their shares within three years following the date of decision of the stock exchange as to delisting of shares. The total amount equal to the purchase price of shares of those who did not exercise their rights to sell out shall be deposited in a special interest-bearing blocked account to be opened at the Takasbank (Istanbul Clearing, Settlement and Custody Bank Inc.) in the name of the company. A bank guarantee letter may also be given rather than depositing cash.
There are many processes to be conducted and completing all such processes may be challenging.
The board of directors at the company shall take a resolution cancelling the shares of the squeezed-out shareholders, and issue new shares to replace these cancelled shares, and apply to the SPK for approval of the issuance of new shares and to the Istanbul Stock Exchange to be delisted.
Once the total amount is deposited by the Offering Shareholder to the company account, the company shall, on the next business day, go to the Istanbul MKK (Central Securities Depository Institution) to have the deposited money to be distributed to the shareholders who applied to sell their shares. After this process is over, Istanbul Stock Exchange confirms the company to be delisted.
What challenges often come your way when trying to undergoing the process of becoming private?
Even though the company wants to go private, if 98% threshold cannot be reached, the majority shareholders may end up spending a certain amount of money, but not be able to have the company be delisted from the stock exchange. Shareholders cannot be forced to sell their shares and they may want to keep being a shareholder in the company.
Furthermore, SPK is not inclined to have the companies delisted and also would like to ensure the protection of public shareholders’ interests. As I tried to explain briefly above, there are many processes to be conducted and completing all such processes may be challenging.
"My name is Ali Ceylan and I am a partner at Baspinar & Partners Law Firm. Our firm has remarkable experience in real estate, litigation, corporate law, M&A, international arbitration, energy, privatization and intellectual property. Our mission is to create value for our clients. We are proud of the recognition we have received from our clients for our commitment to service, and we value their satisfaction as the best measure of our success. Our firm's culture is characterized by teamwork, mutual respect and a commitment to excellence in everything we do. We believe in creativity and we do not solve problems merely by replicating historical methods, but also test alternative approaches and try to invent unique solutions."
