Lawyer Monthly - February 2023

As a glance at the Monthly Round-Up and Lawyer Moves sections will soon demonstrate, the year has got off to a strong start for the legal practice – a theme that is reflected in many of this month’s featured articles. Our front cover story targets many of the legal trends that we expect to see across the legal landscape as we move into 2023, from rising costs to a boom in technology. These collected trends can be found on page 12. We are proud to feature incisive articles from a range of top-performing legal practitioners this month. Delphine Parigi begins the stories in style by sharing her thoughts on property and tax matters in France and internationally (page 18), while a team of experts from Loyens & Loeff bring a close analysis of post-Brexit restructuring proceedings in Luxembourg (page 32). We also hear from expert witnesses Jeff Martin (page 68) and Niki Sinclaire (page 62), whose exclusive interviews shed light on building envelope construction and client mobility solutions. All make for informative and highly engaging reads. Beyond these, the February 2023 edition comes equipped with incisive opeds touching upon some of the most interesting facets of the legal scene. Our talented guest authors speak on topics ranging from ADR in Singapore to advice for Swiss prosecutors and defence attorneys, coupled with our usual array of news and appointments – and more predictions for 2023 that take aim at the Scottish legal market. Whatever your area of specialisation, we expect that you will find many points of interest within this month’s offerings. We hope that you enjoy this edition! LAWYER MONTHLY©2023 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution. Oliver Sullivan Editor Lawyer Monthly Welcome to Lawyer Monthly Magazine FEBRUARY 2023 EDITION @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 Production Team: Emma Tansey, Luke Ostle, Nathan Athersmith Sales Enquires: Jacob Mallinder

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Contents 18 62 6 Monthly Round-Up 8 Lawyer Moves FEATURE OF THE MONTH 12 The Top Legal Trends for 2023 Oliver Sullivan, Lawyer Monthly MY LEGAL LIFE 18 Delphine Parigi French and International Property & Tax Matters in 2023 SPECIAL FEATURE 26 5 2023 Trends in the Scottish Legal Market Richard McMeeken, Morton Fraser Lawyers EXPERT INSIGHT 32 Post-Brexit Restructuring Proceedings: Implications in Luxembourg Loyens & Loeff 38 Obstacles to Prosecuting Wrongful Death at Sea Adam Lotkin, Rutter Mills LLP THOUGHT LEADER 44 The Rise of Dispute Resolution in Singapore Ban Jiun Ean, Maxwell Chambers 48 The Case for Family Mediation Sonia Rola, Buckles Solicitors 52 A Guide to the Public Prosecutor’s Procedure in Switzerland Simon Bächtold, Bächtold Gallarotti Rechtsanwälte 56 Swiss Wills and Changes to the Law of Inheritance Cecile Ringgenberg, Attorney at Law EXPERT WITNESS 62 Helping Injured Clients to Regain Mobility Niki Sinclaire, Personal Mobility Solutions Ltd 68 Legal Difficulties in Building Envelope Consulting Jeff Martin, Fortress Building Envelope Consulting 72 Medical Malpractice and Cauda Equina Syndrome Dr. Charles E Rawlings, The Rawlings Law Firm TRANSACTIONS 74 What’s Happening in the World of M&As and IPOs?

Monthly Round-Up FEBRUARY 2023 Sam Bankman-Fried Pleads Not Guilty in FTX Fraud Case On 3 January, FTX founder Sam BankmanFried pleaded not guilty to the theft of billions of dollars in customer funds entrusted to his cryptocurrency exchange. The plea marked Bankman-Fried’s first court appearance since his release on a record $250 million pretrial bail. countries including Ireland, Denmark and Argentina. On 16 January, Scottish Secretary Alister Jack said that the UK government would block the bill on the basis of its “significant impact” on UK equalities law. To do so it has invoked Section 35 of the 1998 Scotland Act, which enables the UK government to stop a bill from becoming law if it is deemed to have an adverse effect on matters where the national government retains ultimate jurisdiction. This is the first time that the UK government has used this power, a move that Nicola Sturgeon has described as a “full-frontal attack” on the Scottish Parliament. “If this Westminster veto succeeds, it will be the first of many,” she said in a statement on Twitter. was only announced once Bankman-Fried was in transit to the US from the Bahamas after agreeing to voluntary extradition. In media appearances since FTX’s filing for bankruptcy, Bankman-Fried admitted to having made mistakes in his running of the exchange but denied criminal liability. A trial date has been set for 2 October. Following the collapse of the $21 billion cryptocurrency exchange in November 2021, the 30-year-old mogul has been accused of having looted customer funds to prop up his Alameda Research hedge fund. The US Securities and Exchange Commission opened a parallel complaint against Bankman-Fried, alleging that he used FTX customer deposits as a “personal piggy bank” for investments, political donations and real estate purchases. Should he be found guilty of charges of fraud and vioating campaign finance laws, he may face a sentence of up to 115 years in prison. Two of the FTX founder’s senior co-workers, FTX co-founder Gary Wang and Alameda CEO Carolyn Ellison, pleaded guilty to criminal and civil charges of fraud and securities violations. News of these pleas In an historic first, the UK government has used its power to veto a Scottish law that will make it easier for transgender people to change their legal gender. The bill, which was passed by the Scottish government in December 2021, removes the need for a medical diagnosis of gender dysphoria in order to legally change one’s gender, moving the process to a ‘selfidentification’ model that is intended to be less invasive and stressful for participants. The bill also lowers the minimum age for changing one’s gender from 18 to 16. Scotland is the first UK nation to back self-ID laws, which have also been adopted by other UK Government Blocks Scottish Gender Recognition Bill 6 LAWYERMONTHLY FEBRUARY 2023

Department of Justice Files Antitrust Lawsuit Against Google AI Generators Sued Over Copyright Infringement The US Department of Justice (DoJ) and eight states have filed a lawsuit against Alphabet subsidiary Google, alleging that the company abused its dominance of the digital ad space. A group of visual artists has sued AI companies Stability AI, Midjourney and DeviantArt, adding to a recent wave of IP litigation against AI tools. lawsuit. “Anyone that believes that this isn’t fair use does not understand the technology and misunderstands the law.” Getty Images is also suing Stability AI, claiming in a statement that the company downloaded and used millions of its images for AI training without obtaining the proper licensing. ads that businesses place on searches that might be relevant to the user. The lawsuit alleges that Google used its dominance on the buyer, seller and exchange side to force ad buyers and sellers to use their servers at less favourable terms than a competitor might offer. The DoJ is seeking to force Google to sell or spin off its digital ad business to diminish this control. The DoJ is also seeking monetary damages for the government, alleging that $100 million worth of its display ads purchased for various agencies and services since 2019 were based on inflated and anticompetitive prices. downloaded and used by the companies in question to develop the AI “without compensation or consent from the artists” whose images were taken, according to the suit. The group seeks a jury trial and unspecified damages. “Please note that we take these matters seriously,” a Stability AI spokesperson said in a statement responding to the over digital advertising technologies”. Google made $169 billion in revenue through ad sales in 2022, with the vast majority coming from targeted search Plaintiffs Sarah Andersen, Kelly McKernan and Karla Ortiz allege in the class-action lawsuit that Stability AI’s Stable Diffusion tool – which Stability AI, DeviantArt and Midjourney all utilise in the automated generation of images – was trained on billions of copyrightprotected images that were ‘scraped’ from the internet. These images were In a statement on the complaint, the DoJ accused Google of having utilised “anticompetitive, exclusionary, and unlawful means to eliminate or severely diminish any threat to its dominance MONTHLYROUND-UP 7

Lawyer Moves RECENTAPPOINTMENTS FROMACROSS THEGLOBE Global law firm Jones Day announced that Andy Levine, Randi Lesnick and Vica Irani will become heads of the firm’s newly structure corporate practice, both overseeing and coordinating its transactional work worldwide. Andy Levine has led Jones Day’s Private Equity Practice since 2017. Based in New York, his practice involves leading global transactions for both sponsors and strategic participants, with clients including numerous consumer brands and financial institutions that have become household names. He has been recognised by Legal 500 US for both M&A Large Deals and Private Equity, and has twice been named a Private Equity MVP by Law360. Lesnick is another New York-based partner who previously served as Jones Day’s M&A Chair for the America. With more than 25 years of experience advising on M&A transactions with a total value of more than $300 billion, her practice today continues to focus on M&A transactions such as spin-offs, takeover preparedness and restructurings. She has been named a Dealmaker of the Year by The American Lawyer and is consistently recognised by Legal 500 US and Chambers USA for her M&A work. Irani has held a variety of leadership positions in the firm, having served as its EMEA Chair for the M&A Practice and co-chair of its Global Women’s Affinity Group. She brings M&A experience from a wide range of industries and has worked on several multi-billiondollar transactions, including a $49 billion multinational merger, and has been rated a leading lawyer by Chambers and Legal 500 for more than 15 years. Jones Day’s Managing Partner, Greg Shumaker, celebrated the three appointments. “Andy, Randi, and Vica are leading practitioners in their field who not only have extensive experience but also decades of practice ahead of them,” he said in a statement. “With their appointments, we have leadership situated in the two most important financial capitals of the world that will continue to expand Jones Day’s status as one of the premier transactional firms globally.” Global firm DLA Piper continued its expansion of its Hong Kong office with the appointment of Xin Fang as a partner in its corporate practice there. This marks the firm’s fifth partner hire in Hong Kong in just over a year, its previous two such hires joining the firm from Linklaters. Fang’s practice focuses on cross-border M&A matters, joint ventures, private equity transactions and corporate and commercial law with a geographical focus on Greater China and the Asia-Pacific region. She also negotiates shareholder agreements, share purchase agreements and business transfer agreements. With this latest hire, DLA now has 28 partners based in Hong Kong. Jones Day Announces New Heads of Corporate Practice DLA Piper Adds to Hong Kong Team with M&A Expert New York, USA Jones Day Hong Kong DLA Piper Manchester, United Kingdom DAC Beachcroft 8 LAWYERMONTHLY FEBRUARY 2023 DAC Beachcroft (DACB) appointed Jane Marshall as a partner in its national Employment, Pensions and Immigrations (EPI) group. Based in Manchester, Marshall is a leading expert in public sector pensions as well as a seasoned employment lawyer. She joins DACB from Weightmans, where she accrued a wealth of experience working with prominent clients in the public and third or voluntary sectors. Marshall’s primary areas of experience reside in healthcare, local government, education, social housing, emergency services and charities. “Legislative changes around pension schemes and TUPE transfers mean the crossover of Jane’s experience between pensions and employment law is an exciting addition as we continue to broaden our full-service offering,” said Alex Lock, Head of DACB’s national Employment & Pensions group. “I am delighted to welcome Jane to the firm and look forward to working with her.” Marshall also spoke positively on her appointment: “As legislation continues to change, there are challenges to navigate and opportunities to grasp within the pensions and employment landscape. I look forward to working with the team here at DACB to support clients in achieving their ambitions.” DAC Beachcroft Boosts Employment, Pensions and Immigration Practice with New Partner

Paul Hastings announced the continued expansion of its global finance practice with the appointment of Patrick Bright as a partner in London. Bright is known as a leader in European high-yield transactions and brings a good deal of experience in advising investment banks, funds, corporates and sponsors on high-yield offerings, in addition to leveraged and acquisitioned financings, bond restructurings and other capital markets transactions. Past clients for whom he has conducted financings include Infopro, Aston Martin, Very Group, Biofarma, Verisure and Itelyum. In addition to these achievements, Bright is consistently ranked as a top practitioner in high-yield transactions by Legal 500, Chambers UK and IFLR1000. “Patrick has a stellar reputation as one of the leading high-yield lawyers in the London and global markets,” said Paul Hastings Chair Frank Lopez. “Patrick strengthens our premier London and global finance platform as a destination for the entire capital structure in the most complex finance transactions.” Finance Partner Bolsters Paul Hastings’ London Team Armstrong Teasdale has added Michael Burwick to its roster of partners. With almost 30 years’ worth of experience as a tax, corporate and securities lawyer, he will serve the firm’s clients from its Boston, Miami, New York and Washington DC offices. Burwick’s practice is focused on tax deferral, mitigation and minimisation, and he has successfully developed and implemented several tax strategies derived from little-known sections of the Internal Revenue Code to aid his clients. Burwick has supported businesses ranging in size from several million to several hundred million dollars in annual revenue as well as HNWIs, aiding them in organising the timing and payment of their capital gains and income taxes. Today, Burwick’s clients range across numerous sectors of industry. He collaborates with professional agents and advisors in the sports, media and entertainment sector to minimise and defer athletes’ taxes, utilising investments that they have acquired from their endorsement income and broader career earnings. Beyond the sport and media sector, Burwick also uses IRC provisions to provide tax benefits to his many clients in the agricultural sector. Subcategories in the sector have included timber, fisheries, nurseries and livestock, as well as others that fall within IRC’s definition of agriculture. Burwick’s appointment was hailed by Armstrong Teasdale partner and Leader for the Eastern US, Richard Scheff. “Michael is a consummate professional and consistently identifies opportunities to serve his clients in the tax realm,” he said. “His background in psychology and sociology helps him better understand his clients and their businesses, and work in collaboration as a true extension of their organisation.” New Partner Arrives at Armstrong Teasdale London, United Kingdom Paul Hastings USA Armstrong Teasdale LAWYERMOVES 9

For the first edition published in 2023, the team at Lawyer Monthly has decided to begin with a widereaching look at what we see on the horizon for the world of law this year. From the growth of AI and other bleeding-edge technology in law firms to new techniques in marketing and reckoning with rising costs across the legal sector, it promises to be a decisive period for the practices of many legal professionals. We urge you to read on – and to let us know if our predictions line up with your own. We are excited to see what new stories emerge from firms across the globe in months to come. FEATURE OF THE MONTH

A common stereotype of the legal sector is that it is quick to calcify and slow to change its established way of doing things. Regardless of how true this may be when compared to other industries, the world of law is far from stagnant, as we observe every month; the way legal professionals work is ever-changing in a myriad of ways, reflecting the needs of the society it serves. We saw shades of each of these trends rise in prominence throughout 2022. Together, they provide a glimpse of what the top priorities will be for law firms and in-house counsel as the year progresses. We hope that this makes for a useful bite-sized sector overview. Written By Oliver Sullivan T H E T O P LEGAL TRENDS F O R

SPECIAL FEATURE 13 While artificial intelligence (AI) has long been touted for the benefits it stands to bring to the legal profession, 2022 saw some truly portentous developments. Tools such as OpenAI’s ChatGPT took the world by storm, demonstrating the potential of so-called ‘generative’ AI for producing content from code to essays to advertisements. Similar AI systems tailored for the legal sector – such as Lexion’s AI Contract Assist – have the potential to greatly boost a law firm’s productivity through the automation of processes involved in due diligence, legal research, contract management and discovery. As existing systems are built upon and new competitors emerge, we can expect firms to entrust greater portions of their output to creative machines in and beyond 2023. It is little coincidence that 76% of legal professionals see digital technology as one of the key drivers of change in the model legal sector. However, we are no closer to a mass replacement of legal professionals by AI, despite popular fears. “Lawyers exercise independent professional judgment,” Muldoon & Partners founder Katherine Muldoon points out. “AI cannot currently emulate essential lawyer skills such as strategic and creative thinking, conflict resolution, negotiation, emotional intelligence and empathy. In short, the things that make a good lawyer great.” Artificial Intelligence

Where recruitment and marketing have not yet fallen victim to tightening budgets, legal teams in 2023 will continue to explore new avenues of reaching target audiences. This of course means well-targeted advertising, which is embodied in the idea of social recruitment. Emergent modes of social recruitment go beyond job listing websites such as Monster and Indeed, which law firms have been using to source candidates since their inception. This year, recruiters expect to place greater emphasis on proactively identifying and engaging with ideal candidates through social media forums. LinkedIn is an obvious source of talent, but firms are now beginning to utilize the potential of messaging candidates directly through other sites such as Facebook and Twitter, the latter of which can also be used to advertise vacancies and services using hashtags. Better still, the use of social media can buoy other forms of marketing too, as 73% of buyers are more likely to consider a brand if the salesperson reaches out via LinkedIn. 42% of small law firms have also confirmed that their active use of social media has resulted in an uptick in clients. Every new entrepreneur and every newly trained lawyer will have vast experience of using social media; every legal marketer ought to be conscious of this and devoting their resources accordingly. As the American Bar Association noted in 2019, “Almost every recession has coincided with some significant change in the [legal] profession”, with evidence to suggest that this pattern has been extant since 1960. Now that fears of widespread economic downturn are once again swelling, it is no surprise that law firms are taking every opportunity to push cash a little bit further and tackle rising costs where they can still be cut back. Legal fees are at the forefront of many firms’ profitfinding strategies. A report from Wells Fargo indicates that law firms will be looking to raise fees by an average of 7% to 8% this year, yet how practicable this will be remains doubtful. There is mounting pressure from venture capital and private equity firms to curb legal costs, with 80% of respondents in a Coleman Parkes survey complaining of a lack of transparency in fees and 40% saying that bills are always higher than expected. Several methods are being employed to reduce costs incurred by outside counsel. Upwards of 60% of legal departments now employ at least one legal operations specialist for the purpose of improving departmental efficiency, with a similar proportion having negotiated payments for counsel in a form other than hourly billing. This same cost crunch will likely fuel many of the other trends expected for 2023, such as a renewed focus on AI ‘outsourcing’. 14 LAWYERMONTHLY FEBRUARY 2023 Expanded Marketing Tightening Costs

Ransomware and other cyberattacks rank among the most debilitating threats to a law firm’s operations. With a growing focus on technology and the digitalisation of processes, the potential damages caused by malicious actors will only continue to grow, as we saw firsthand with a number of security breaches in firms in 2020 as the sector made a widespread pivot towards remote working. The risk has been recognised by international bodies, with the EU proposing new cybersecurity regulations to counter the surge. Accordingly, legal teams are already seeking to bolster their firms’ safeguards against bad actors. The use of comprehensive data backup and recovery solutions is growing more normalised, protecting against the irretrievable loss of data in case of an attack that locks a firm’s systems (but doing little to prevent this data being leaked). Managed software solutions are another avenue being explored by many firms, hiring outside expertise to develop more secure IT infrastructure. While expensive, investments of this scale are more likely to be seen as worthwhile in light of the global average cost of a data breach reaching $4.35 million last year. Beyond being a concern for law firms, cybersecurity represents a growing consideration for organisations in every sector. As cloud services and remotely accessed databases are normalised across the working world, cybersecurity and privacy are poised to become one of the most profitable practice areas. Firms that are looking to capitalise on this would do well to invest in their talent pool immediately, the better to provide a competitor-beating service that will guarantee demand in the months to come. SPECIAL FEATURE 15 Cybersecurity Focus

Each month, Lawyer Monthly Magazine has the privilege of interviewing the brightest and most ambitious movers in the legal space. In these conversations we dig into their areas of expertise, learning more about their practice and the stories behind their pursuit of excellence. Featured this month is Delphine Parigi, founding partner at DPZ Avocats. A leading lawyer on tax and property-related matters both in France and abroad, she provides an in-depth look at her area of specialisation, offering unique insights into what developments we can expect to see this year. MY LEGAL LIFE

18 LAWYERMONTHLY FEBRUARY 2023 Delphine Parigi has been a tax lawyer since 2005, having begun her career with EY Société d’Avocats in Paris and New York. She launched DPZ in 2011 to better provide high-value technical services to international clients, in addition to working within her values of proximity and accessibility. DPZ Avocats is a boutique law firm located in Nice and Paris, providing services both in France and abroad. The firm counts clients among the private and public sector, in addition to non-profit organisations, investment funds, banks and individuals, providing both advice and litigation services.

Delphine Parigi To provide a foundation for this conversation, can you give a brief overview of the main regulations concerning real estate and property acquisitions in your jurisdiction? France has developed a continuous, complex tax and legal system when it comes to investment in real estate by foreign investors, which demands a specific approach. Whereas real estate investments are clearly secured from a property standpoint with the required involvement of a notary public for any transactions (including the transfer of foreign shares, which are predominantly real estate for French tax purposes), the French tax regimes applicable for ownership, resale and My Legal Life French and International Property & Tax Matters in 2023 French real estate and tax law can be a multifaceted subject, relying on tax structures that are distinct from peer nations. This grows especially pertinent when an international element is added to the subject. In this feature, we hear from DPZ Avocats’ Delphine Parigi as she takes a look at the key concerns for HNWIs and other foreign investors in France as we move into the new year. Today, it takes approx. one year for a deed to be fully registered by the land registry. MY LEGAL LIFE 19

inheritance purposes are extremely numerous and depend on many factors. These include the type of real estate investment, ownership structure, destination, ownership and capital gains involved. How can the introduction of an international element complicate such situations? Beyond the potential for double taxation in case of a cross-border investment, France has implemented an extremely detailed patchwork of procedures when it comes to international investors. As a few examples, any entity (French or foreign) has to be registered in France. In addition, any investment via a special purpose vehicle triggers a 3% tax declaration by 15 May to disclose the channel of investors up to the UBO. In case of a second omission, delay or mistake, the French tax authorities reassess the taxpayer (with a joint liability of intermediary entities) at 3% of the fair market value of the property and generally apply a 40% penalty. When French real estate assets or rights have been financed abroad, the deductibility of the financing is often challenged if the financing has not complied with French rules. In case of a French property owned by a trust, yearly reporting is also required. Many other specifications apply which require significant administrative and accounting costs to be anticipated upon acquisition. We highly recommend that foreign investors ask their French tax advisors to determine the exact tax and indirect costs upon acquisition, ownership, resale and inheritance upon the acquisition. It is ideal to insert a substitution clause upon the promise of sale to take the time to define the relevant type of acquisition (direct or indirect) before the final deed. Indeed, modifying the structure after acquisition incurs a significant transfer tax in France. What are the main tax issues encountered during property-related transactions in France and across borders? Due to the French tax declarative system, the burden is put on the investor’s shoulders. Contrary to many overseas authorities, the French tax authorities tend to consider any HNWI or foreign company as potentially fraudulent. The French procedural rules for prosecution of tax fraud have been significantly amended since October 2018 in order to increase the number of tax fraud prosecutions against both individuals and legal entities. Our practice focuses on assisting cross-border investments. Since October 2018, the French tax authorities automatically refer cases to prosecutors where: - the tax reassessment exceeds €100,000, and; - the French tax authorities apply a 100%, 80% or 40% penalty. This new procedural rule mechanically increases the number of files which arrive at the prosecutor’s level. Today, the 40% penalty applies almost automatically when there is an omission in any tax filing. This period is particularly complex as clients have to deal with a lack of responsiveness from the authorities and the tight timeline of the transaction. Today, it takes approximately one year for a deed to be fully registered by the land registry. In what ways can procedural tax issues be prepared for before they become problematic? The ideal time of action is definitively before the closing of the transaction. This is where one is able to determine a strict costs and modalities plan with the support of a coordinated team of lawyers, surveyors and experts in valuation who are aware of the French tax landscape for international clients. In addition to their technical expertise, the capacity of the advisors to connect with involved parties is key to easing the full process. In this new environment, it is critical to anticipate the criminal risk as soon as possible in order to limit the risk that the tax audit leads to a criminal enquiry for tax fraud against the HNWI, the legal entity or its directors. The most difficult 20 LAWYERMONTHLY FEBRUARY 2023 In this new environment, it is critical to anticipate the criminal risk as soon as possible in order to limit the risk that the tax audit leads to a criminal enquiry for tax fraud.

full reimbursement. However, such steps require a long term renting with services. If the investment were being made across international borders, perfect coordination between the advisors is absolutely necessary. Although we are part of an integrated world, the tax world is still defined by procedures individual to each country. Many tax-efficient regimes do exist in France, but detailed conditions must be met. As an example, given the objectives of a project, the dividend taxation regime tends to be the most favourable, and therefore the SIIC and the SPPICAV should be the most efficient structuring. The SIIC (listed company) requires the fulfillment of the following obligations: - 60% of the share capital should not be held by the same investor or investors who agreed to act in the same way, and; - At least 15% of the share capital should be held by investors holding each not more than 2%. Furthermore, at least seven investors, in addition to the two main shareholders, should hold a part of the SIIC capital. The SIIC is also subject to specific distribution obligations every year: - 85% of the rental income received by the SIIC every year from the SCIs - 50% of the capital gain derived from the sale of real estate by the SCIs - 100% of other incomes (e.g. dividends received from subsidiaries of the SIIC) Failure to comply with the distribution obligation may lead to the loss of the benefit of the CIT exemption regime of the SIIC. In addition, dividends distributed by the SIIC may be subject to withholding tax to its legal investors holding, directly or not, at least 10% of the SIIC in case such investors are not subject to CIT (or, if foreign investors, to an equivalent taxation). Due to these quite restrictive conditions, tax audits often begin due to a mail issue caused by failing to swiftly follow up on a request from the French tax authorities. How would you advise a high-net-worth client or large company on beginning a taxefficient investment in French property? What additional elements would need to be taken into account if the investment were being made across international borders? To be tax-efficient today requires first and foremost to set up a consistent SPV with the purpose of avoiding any discussion about artificial settlements. For instance, in case of significant renovation and a decision to rent the real estate, it may be in the scope of the paid VAT to obtain a MY LEGAL LIFE 21

the SPPICAV often appears as a more convenient structure. Even if the SPPICAV is subject to CIT, it may be more convenient when compared to the SIIC, notably for the following reasons: - the SPPICAV is not a listed entity, which is therefore not subject to stronger regulations; - there is no minimum share capital; - there is no restriction on the capital repartition. However, the assets repartition of the SPPICAV is limited to the obligation of holding at least 51% in real estate. Similarly to the SIIC, the SPPICAV is subject to distribution obligations every year: - 85% of the rental income - 50% of other income Have there been any legislative changes during 2022 when it comes to tax and property in France? Pursuant to article 279-0 bis of the FTC in application of the Finance Bill for 2023, VAT is levied at the reduced rate of 10% on improvement, transformation, development and maintenance work relating to residential premises completed over two years ago. Similarly, pursuant to the provisions of Article 278-0 bis A of the FTC, VAT is collected at the rate of 5.5% on energy quality improvement works in the same dwellings. At the same time, when the work is carried out by a professional lessor, article 257, II-1-2° of the FTC provides that if this work contributes to the enhancement or extension of the life of the building, it must give rise to the taxation of self-delivery when the building subject to the work is assigned to operations not subject to VAT – which is the case when the building is assigned to a rental activity for residential use (this type of rental being exempt from VAT). As for the rate applicable to this selfdelivery, it is in principle 20% except for works relating to social housing. What tax developments should French corporates watch out for in the year to come? The tax developments are mainly issued by the OECD rules with a specific practice and by case law (although France is supposed to be a civil law country). A substantial change concerns VAT with the electronic filing. The system adopted by article 26 of the Amended Finance Bill for 2022 and the Finance Bill for 2023 is based on two objectives relating to the generalisation of electronic invoicing in transactions between persons subject to VAT and the transmission of transaction data: - widespread use of electronic invoicing; - the obligation to transmit to the administration and in a dematerialised manner the information relating to the operations carried out by persons subject to VAT which are not taken from electronic invoices. In practice, the implementation of electronic invoicing will be done according to a gradual schedule, which will limit the effects of this transition on companies and gradually include them according to their size. The dates will be 1 Janary 2024 for large companies, 1 January 2025 for midsized companies (ETI) and 1 January 2026 for SMEs and VSEs. Article 62 of the Finance Bill for 2023 completes this reform by making two changes. The first complements article 289-VII of the CGI, relating to the terms under which taxable persons can issue or receive invoices. They will now be able to use the qualified electronic seal procedure within the meaning of the European regulation known as the ‘eIDAS regulation’. This procedure is in addition to those already provided for, namely the electronic signature, the reliable audit trail and the structured message. The second modifies article L. 102 B of the Tax Proceedings Code in order to provide that the books, registers and documents drawn up or received on a computer medium must be kept in this form for a period of six years from the date of the last transaction mentioned in the books or registers or the date on which the documents or records were drawn up. There would therefore no longer be the possibility of keeping them for three years on a computer medium, then of switching to another medium for the last three years. 22 LAWYERMONTHLY FEBRUARY 2023 I believe I took the journey of international tax law in because I am driven by solving the most complex and challenging legal issues as efficiently as possible.

Contact Delphine Parigi Founding Partner, DPZ Avocats 81 Avenue Raymond Poincaré, 75116 Paris, France Tel: +33 9 81 25 89 87 | Fax: +33 9 81 38 38 77 E: | MY LEGAL LIFE 23 About Delphine Please tell us about yourself and your journey into law. I believe I took the journey of international tax law in because I am driven by solving the most complex and challenging legal issues as efficiently as possible. I hesitated with a diplomatic career, but tax law answered just as well to this need by governing the financial foundation of our society and by giving me the opportunity to be involved in cases where the human part is the basis. Nowadays, with the trend of tax law becoming criminal tax lax, I understand fully my vital need for freedom and defence of taxpayers. “Liberty is at an end whenever the laws permit that, in certain cases, a man may cease to be a person, and become a thing.” - Cesare Beccaria What would you say have been your proudest achievements in your career to date? I find this question difficult to answer for a lawyer, as the essence of our career is to battle in the shadow and in silence for the interest of our clients. It would be a lie to say that I feel indifferent to being part of billion-euro transactions, having represented one of the few cases to the French Constitutional Council, being contacted by top leading firms to launch their office, being a speaker at worldwide conferences including at the Harvard Business Club, winning complex cases at transactional level, or solving issues which other advisors said were impossible. But I think my biggest renewed achievement is that I wake up every day with the chance to do the profession that I have chosen with the people I am grateful to work with. Working happily with a grateful team and clients over the years, whatever the challenges, is an amazing gift. I received two messages received today, the first from a long-term client: ”I appreciate we are getting into deeper tax advice and I really appreciate you being available at short notice.” The second, from a successful young alumnus trainee who sent me his wishes: “I also wanted to thank you for your time and for everything you gave me during my months of internship in your firm, which are now of great help to me for my new experiences.”

These articles come from guest authors across a broad range of specialisations. Rather than focusing on subjects necessarily pertinent to law firms or the world of business, our special features most often touch upon new legislation, common law and the intersection of the contemporary legal landscape with the public interest. The theme of this month’s special feature, like the Feature of the Month, is built around projections for 2023, with a focus on new developments in the Scottish legal market. These insights from Richard McMeeken are sure to be relevant to any lawyer or firm, with patterns applicable to the legal sectors of several nations. SPECIAL FEAT URE

26 LAWYERMONTHLY FEBRUARY 2023 Special Feature Following on from our broader look at legal sector trends in 2023, Morton Fraser partner Richard McMeeken takes a more focused look at the legal market in Scotland. Here, too, there are opportunities for growth and productive new directions. What should Scottish firms look forward to in the months to come? 2023 Trends in the Scottish Legal Market 5

As we enter 2023, it is interesting to speculate about which trends we will see emerging in the Scottish litigation market in the coming year. From insolvencies and class actions to changes to legal regulation and the availability of litigation funding, we anticipate these five trends in 2023. Richard McMeeken is a partner and solicitor advocate in the commercial litigation team at independent Scottish law firm Morton Fraser. Richard McMeeken Partner and Solicitor Advocate Morton Fraser Lawyers Quartermile Two, 2 Lister Square, Edinburgh EH3 9GL Tel: +44 0131 247 1035 Starting with the most obvious, we are expecting to see a marked increase in insolvency litigation. The ‘tsunami’ of insolvencies that was anticipated following the pandemic has not yet materialised, and while London is starting to see bigger waves in that practice area than it did last year, Scotland is yet to see as significant an increase in cases. It is likely that this will change in the year ahead and there are signs that it is already starting to do so. This may be driven by larger insolvencies which cause ripple effects in the market, but the real uptick in cases may be in relation to the conduct of directors during the pandemic. Scotland is already seeing a rise in claims against directors either by insolvency practitioners, creditors or shareholders and it seems clear that this trend is likely to continue. Beyond insolvency litigation, we predict that claims against directors are also likely to rise. In 2022, we saw several petitions made by shareholders seeking relief from unfairly prejudicial conduct under section 994 of the Companies Act. Those sorts of claims, combined with derivative proceedings, are likely to be a feature of the legal landscape in 2023 as well. While the pandemic may be responsible, it is interesting to reflect on the reasons for the increased claims in these areas. Financial pressure on businesses or the individuals in charge can lead to people behaving in a way that they otherwise would not, and occasionally the decisions taken when under that sort of pressure can be open to criticism. So, even beyond insolvency, company directors need to be mindful of the prospect of claims in the coming year and early advice will often be key to protecting their position. SPECIAL FEATURE 27 Insolvency Litigation is Due toRise It is likely that this will change in the year aheadand there are signs that it is already starting to do so. DirectorsMay Be Liable to Claims 1 2 "

28 LAWYERMONTHLY FEBRUARY 2023 In London and across much of Europe, class actions are becoming a big feature of the legal market and are the focus for some of the top litigation funding providers. In Scotland, group proceedings (our equivalent of class actions) have been slightly slower to take off. While there are successful examples to point to, there is an opportunity for growth in this market in the coming year. Of course, being willing to pursue class actions for clients and being able to service them are different things; many firms will not have the size nor resources to properly service proceedings of this kind. Therefore, where an opportunity arises, it will likely be the bigger players in the Scottish market that are involved. ClassActionsHave thePotential toGrow In London andacross muchof Europe, class actions are becominga big feature of the legal market and are the focus for some of the top litigation funding providers. 3 "

SPECIAL FEATURE 29 Recently, there has been an increase in the availability of litigation funding in Scotland, which has had knock-on effects in the type of claims that we see in this jurisdiction. Professional negligence claims provide a good opportunity for funders where the defender is insured and, therefore, a return guaranteed in the event of success. These sorts of claims, against a broad range of professionals, have long been a feature of the funding market in England and Wales, but we may see it emerge in Scotland this year too. Yet the challenge in Scotland is value. Generally, the litigation funding market still struggles to service the mid-market and the very high-value claims, which often arise south of the border, appear more infrequently in Scotland. Litigation Funding 4 Finally, there will be changes to legal regulation in Scotland in 2023, depending on how quickly the proposed changes are adopted. We anticipate that the majority of changes in the Roberton Report on the review of legal services in Scotland will not be implemented. However, two changes will be particularly important. First, at the end of 2021, the Law Society was authorised as an approved regulator for Alternative Business Structures (ABSs) in Scotland. The Scottish Government is now determined to increase ABSs in Scotland, allowing solicitors and non-solicitors to set up in business together to increase competition and choice for consumers in the Scottish legal market. Secondly, the reform of legal regulation will see the Scottish Legal Complaints Commission maintain its role in service complaints, with the Law Society and Faculty of Advocates continuing to deal with conduct issues. However, crucially, it appears that some of the criticisms of the current system have been taken on board and the hope is that the legislation will allow regulators to focus more on consumer experience and outcomes than on the process itself. All in all, 2023 has the potential to be a very busy year for Scottish lawyers and for those quick to embrace the changing legal market there are real opportunities to be explored. Changes toLegal Regulation inScotland 5

Lawyer Monthly’s highly talented guest contributors have amassed a wealth of skills and experiences in their respective fields. This section of the magazine is dedicated to their personal expertise, as they share valuable perspectives on the evolving state of the legal sphere. In the following pages you will find features from Adam Lotkin of Rutter Mills LLP and a team of four partners and associates from Loyens & Loeff. Examining the challenges associated with wrongful deaths at sea and how restructuring proceedings in both Britain and Luxembourg have been impacted by Brexit, these authors offer fresh new takes on key areas of law. EXPERT INSIGHT

32 LAWYERMONTHLY FEBRUARY 2023 Contact Loyens & Loeff 18-20, rue Edward Steichen, L-2540 Luxembourg Tel: +352 46 62 30 Fax: +352 46 62 34

Post-Brexit Restructuring Proceedings The effects of Brexit have had seismic consequences for all aspects of law, not just in the UK but in Europe more widely. This month we hear from four Loyens & Loeff team members specialising in insolvency and restructuring matters, who take a look at the corporate insolvency fallout for Luxembourg specifically. How have Schemes and restructuring plans been impacted by the UK’s exit from the EU, and what has it meant for enforceability of judgements? Anne-Marie Nicolas Patrick Ferguson Michael Scott Véronique Hoffeld Expert Insight Implications in Luxembourg EXPERT INSIGHT 33

To give a broad overview, what have been the primary outcomes of Brexit on cross-border insolvency and restructuring proceedings? In Luxembourg (as in many other EU jurisdictions) there is no specific legal framework on automatic recognition of UK judgements following Brexit. That is to say, there is no replacement or equivalent to the previously applicable: (i) EU Insolvency Regulation, (ii) Brussels Recast Regulation on recognition of judgments, and (iii) recognition in certain circumstances where the Hague Convention would typically not apply. The consequences have a significant effect on the use of certain previously common restructuring tools such as the UK Scheme of Arrangement and, more recently, the UK Restructuring Plan. Whereas Schemes and other UK processes were commonly used to restructure debt prior to Brexit, their use has become less common post Brexit due to this lack of automatic and direct enforceability. The UK restructuring processes can still be used, but their scope of use is now limited, it being noted that parties need to undertake a more detailed factual analysis as to the need for enforceability of the UK judgement in the specific matter and associated risks as to lack of direct enforceability. Post-Brexit, it appears from practice that a Scheme or other UK restructuring process is limited to use on debt governed by English law only and only with respect to the contractual nature of the debt. This is a change from past practice, where the UK processes could also be used to order positive actions as against the debtors. As positive actions against the debtor require immediate enforceability of the judgement for them to be effective, these positive actions would appear to be no longer viable, thereby limiting the scope of applicability of the Scheme. As to market trends as a result of Brexit: (i) the overall use of Schemes has decreased, (ii) other restructuring processes in EU 34 LAWYERMONTHLY FEBRUARY 2023 countries are considered as options in far more detail (such as the German or Dutch restructuring processes), and (iii) the scope of the Schemes has been reduced to and generally limited only to contractual debt matters. The UK restructuring procedures, however, remain very practical and the UK Courts have significant experience in debt restructuring, making it an objective of parties to attempt to fit facts and circumstances to try and still use these processes. One such trend is the growing popularity of attempting to create a coobligor structure following the Gategroup model to limit recognition issues. What has been the impact on international recognition and enforcement of postBrexit UK judgements in EU member nations? English Schemes of arrangement (voluntary pre-insolvency proceedings) are not considered to be insolvency proceedings. As a result, prior to the Brexit transposition deadline such orders were generally automatically recognised in the EU under the Brussels Recast Regulation. However, as no equivalent proceedings, treaties or recognition conventions exist in EU Member States, with the Brussels Recast Regulation no longer being applicable post-Brexit, sanctioned Schemes would now generally be required to undergo the exequatur procedure in order to be recognised in an EU Member State. In Luxembourg, the exequatur procedure is an ordinary civil proceeding without priority and as such may take significant time to achieve in contested proceedings, leaving an uncertainty in the restructuring transaction (which often proves fatal due to time being of the essence). On the other hand, English Company Voluntary Arrangements (CVAs) are considered to be insolvency proceedings as they are listed under the European Insolvency Regulation1. Thus, prior to Brexit, rulings in relation to CVAs were entitled to automatic recognition in all Member States whereby the European Insolvency Regulation had been fully implemented (subject to that European Member State’s public policy). For example, following the Brexit transposition deadline, a Luxembourgish court would need to apply the exequatur procedure for the recognition of foreign judgements, as Luxembourg has not incorporated the European Insolvency Regulation into national legislation.

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