Lawyer Monthly - December 2023

DECEMBER 2023 In this month's edition of Lawyer Monthly, we delve into a spectrum of compelling legal topics shaping the current law landscape globally. Our experts bring a wealth of knowledge and experience, offering insights into various legal realms. We start by exploring the intricacies of Marital Property Regimes in Spain, providing a comprehensive understanding of the complexities involved in matrimonial financial matters. This is followed by an in-depth analysis of Current Trends in Intellectual Property & Technology Transactions, shedding light on the ever-evolving interface between technology and legal protections. Navigating the labyrinth of UK Corporate Immigration, our experts discuss the challenges and strategies for businesses and individuals in the context of the UK's immigration laws. Additionally, insights into Conducting Business in Belgium offer valuable guidance for international business operations in this key European market. Trademark law remains a hot topic, with a focus on Trademark Infringement Enforcements in Germany and the nuances of Trademark Opposition and Appeals in Canada. These articles provide essential knowledge for navigating the complex world of trademark law in these jurisdictions. On the litigation front, we cover the dynamics of Product Liability Claims in Georgia, USA. Additionally, we look at tackling Personal Injury Claims, offering a glimpse into the challenges and strategies for handling these sensitive legal issues. Lastly, we discuss the significant development of HHS Proposes Rule to Establish Disincentives for Information Blocking Conduct, a critical piece for understanding the intersection of healthcare, technology, and law. Each article, penned by seasoned professionals, is designed to provide our readers with the latest insights and practical advice in these diverse legal fields. Warm regards, Mark Palmer Editor, Lawyer Monthly EDITOR'S PICKS: Carmen Calderón Marital Property Regimes in Spain Michael Boudry Conducting Business in Belgium 4 18 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.

Production Team: Emma Tansey, Luke Ostle Sales Enquires: Jacob Mallinder @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 CONTENTS 4 Marital Property Regimes in Spain with Carmen Calderón, Founder of Carmen Calderón Law Firm 10 Current Trends in Intellectual Property & Technology Transactions with Michael Plumleigh, Partner at M&H LLP 14 Navigating UK Corporate Immigration with Joanne Taylor, Partner at Magrath Sheldrick LLP 18 Conducting Business in Belgium with Michael Boudry, Partner at Novius 24 Trademark Infringement Enforcements in Germany with Laura Rothmund-Feise at Stumpf Patentanwälte 28 Product Liability Claims in Georgia with Rob Snyder, Founder of Cannella Snyder 32 Tackling Personal Injury Claims with Dave Shiner, Founder of Shiner Law Group 34 Trademark Opposition and Appeals in Canada with Amy M. Thomas, Partner at MOFFAT & CO. / MACERA & JARZYNA LLP 38 HHS Proposes Rule to Establish Disincentives for Information Blocking Conduct with Krystyna Monticello, Partner at Attorneys at Oscislawski LLC


Marital Property Regimes in Spain In this exclusive interview, we sit down with Carmen Calderón, a distinguished lawyer and pioneer in the field of Family Law in Spain. As the founder of her own Family Law boutique, Carmen has revolutionized the concept of pre-marital prevention, focusing on protecting client interests and ensuring minimal strain in marital property disputes. With over two decades of experience in Private Civil Law, she brings a unique global perspective, combining legal expertise with a keen psychological understanding to approach each case. Carmen’s innovative working method, involving in-depth analysis and strategic guidance, positions her at the forefront of resolving complex judicial cases. Join us as we delve into her insights and experiences in this specialized and everevolving legal field. WWW.LAWYER-MONTHLY.COM 5 This circumstance gives rise to multiple possibilities depending on the civil neighborhood of each of the spouses, so when deciding and/or modifying the marital property regime, it is necessary to be perfectly advised by a skilled Lawyer to understand the differences that exist between each of the existing regimes. In the territories where common Civil Law is applied, the Law regulating marital property regimes is the Spanish Civil Code. This Law provides for three main types of regimes: Community of Property Society, Separation of Assets, and Participation Rules. In broad strokes, the Community of Property Society is the most widespread type of regime in the territories where common Civil Law is applied. The Community of Property assumes that all property obtained during the time that said regime has been in force is common, in half, to both spouses, regardless of who contributed it. Both spouses benefit equally from the individual gains. But they also take responsibility for all existing obligations, no matter which one of them would have. At the time of liquidation of the scheme, by dissolution or modification of the scheme, assets and liabilities will be divided in half. Alternatively, the Separation of Assets regime allows the individual property of each of the spouses to remain differentiated. Each spouse manages and administers his or her own assets and liabilities with no other economic ties than those derived from cohabitation and respective family burdens. One spouse does To give a framework for this discussion, can you please give a broad overview of the three main marital property regimes in Spain - economic, participation and separation? The marital property regime is the set of rules that regulate the legal form in which the property of the spouses is organized and managed, which includes the private property of each and the common property of both. In Spain, we are not talking about a single piece of legislation for the whole territory of the State, nor about a single marital property regime. All Spanish citizens have, in addition to Spanish nationality, a specific civil neighborhood, which is what determines their subjection to the common Civil Law, the majority in the territory of the State, or to the special or regional Civil Law of some Autonomous Communities. The Autonomous Communities with competence in Civil Law are Aragon, the Balearic Islands, Catalonia, Galicia, Navarre, the Basque Country, and Valencia. All of them, except Valencia, have passed special or regional Civil Laws concerning marital property regimes.

not participate in the other’s profits nor in their losses. They may also have common assets, but they will always retain individual ownership of individual assets. The third and least frequent regime, is the Participation, in which each of the spouses acquires the right to participate in the profits obtained by their consort during the time that said regime has been in force. It is a hybrid model, because during its application time it functions as the Separation of Assets regime and, once extinguished, it is liquidated following a Community of Property Society regime. In the Participation scheme both spouses enjoy full autonomy of property and separate assets. Once the regime is extinguished, its liquidation is opened to determine the initial and final estate of each of the spouses. If the difference between the assets shows a positive balance in both spouses, the one whose estate has had less growth will be entitled to receive half the difference between its increase and that of the other spouse. The issue of the marital property regime is certainly complex because it requires a thorough knowledge of the applicable Law in each case and a skilful handling of all legal subterfuges. But it is also an ideal frame to achieve good estate planning, which will undoubtedly give security and confidence to the marriage relationship. Under the separation regime, how is property ownership and financial responsibility handled between spouses? What are the implications for asset division during divorce? The Separation of Assets regime grants spouses the freedom to manage their individual assets with absolute independence. The assets and private profits prior to the application of the regime, as well as those generated during its time of application, remain within the personal sphere of each person. This is also the case with obligations, which always remain under the umbrella of responsibility of the spouse who has assumed them. When the Separation of Assets regime is dissolved, a liquidation is carried out in which a distinction is made between the assets and profits that form part of the assets of each of the spouses, without confusion. If during the time of application of the regime the spouses have acquired assets or have assumed obligations jointly, at the time of dissolution of the regime these will be distributed according to the percentage of ownership that each one holds. These characteristics make the Separation of Assets regime a very attractive model, at first glance, for people who want to protect their assets from possible risks in the future as a consequence, for example, of a contentious divorce or a poorly planned inheritance. However, the Separation of Assets regime can generate important imbalances in those situations in which one of the spouses has developed his professional activity in the labor market, generating greater assets and human capital that will be retained at the end of the relationship, while the other has dedicated himself exclusively to taking care of the family and the house. 6 LAWYER MONTHLY DECEMBER 2023 When considering a possible Divorce, it is strictly necessary to analyze the impact of the Economic Compensation for Work Reasons, which can be equivalent to a quarter of the difference between the increases in the assets of the spouses or even a greater amount.

of Assets, Aragon, Catalonia, Balearic Islands, Navarra, and Valencia. Although the Economic Compensation for Work Reasons has a greater impact in Catalonia and the Balearic Islands, where the automatic marital property regime, in the absence of an agreement, is that of Separation of Assets. When considering a possible Divorce, it is strictly necessary to analyze the impact of the Economic Compensation for Work Reasons, which can be equivalent to a quarter of the difference between the increases in the assets of the spouses or even a greater amount. How can couples choose a specific marital property regime, and what legal processes or documents are involved in making this choice? When getting married, it is very important to choose a marital property regime that responds to the interests of the future spouses. To try to level this imbalance, the Law provides for a figure that is not always considered by those who prefer the Separation of Assets regime. We are talking about the Economic Compensation for Work Reasons, which responds to this situation at the time of liquidation of the regime. This is a right obtained by the spouse who has contributed to the family responsibilities through work at home, caring for cohabiting relatives, or through unpaid or insufficiently paid work for the other spouse, and who therefore has not been able to obtain an increase in wealth comparable to that of someone who has been able to develop their professional career in the labour market. The existence of various special or regional legislation in Spain offers different configurations and methods of quantification of the Economic Compensation for Work. Among the Autonomous Communities that have assumed powers in matters of marital property regime, five of them have regulated the Separation WWW.LAWYER-MONTHLY.COM 7 To choose and regulate the marital property regime, there is a tool that the Law puts at our disposal, the Marital Agreements. The Marital Agreements are a form of contract that includes a set of agreements reached for the regulation of the patrimonial effects, that is, of economic content, that are a consequence of the marriage, whether of the spouses among themselves or of them with third parties. To be valid, the Marriage Agreements must be made before a Notary, they must be recorded in a public document, the deed, and they must be registered in the corresponding Civil Registry. Marriage Agreements can be made before or after getting married. When the Marital Agreements are prior to the celebration of the marriage, the chosen marital property regime will come into force after the celebration of the wedding, which must occur within one year from the signing of the public deed. Once the wedding has been celebrated, the chosen marital property regime will be valid from the signing of the public deed.

The marital property regime can be modified at any subsequent time if there is an agreement between the spouses. To do this, the modification must be recorded in a new public deed, authorized by a Notary, and must also be registered in the corresponding Civil Registry. Are there any default rules that apply if a couple does not explicitly choose a specific marital property regime? How does the law determine the default regime in such cases? Just as we have stated, the future spouses can choose and regulate their marital property regime, but if they do not agree on any, the one that corresponds to them will govern based on their civil neighborhood, which may be the common Civil Law, or special or regional Civil Law of some Autonomous Communities. What should couples be aware of when choosing a marital property regime? In my opinion, when choosing a matrimonial property regime, it must be perfectly clear that, if in the future there is no agreement between the spouses, we will not be able to modify the regime. Therefore, before getting married, it is essential to obtain advice on the type of matrimonial property regime applicable in the territory and you should never sign a marriage contract without having detailed knowledge of all the consequences because it is possible that the relationship between the spouses change later, and it will not be possible to modify the agreements. How often do you encounter situations where couples wish to modify their chosen marital property regime, and what are the processes involved in making such a change? In my professional practice I work recurrently with this type of contract within what I call a pre-marital prevention plan, with which I manage to protect the interests at stake and provide stability to the property relationships between spouses. At this point, I would like to convey to Lawyer Monthly Magazine’s readers the utmost importance of planning the correct development of property relations after marriage. Both the marital economic regime, as a framework, and the Marriage Agreements, as an instrument, can be used strategically to satisfy the client’s needs. That is why I insist on the convenience of working hand in hand with a Lawyer specialized in the matter, with a long professional career and a prestige backed by successes. 8 LAWYER MONTHLY DECEMBER 2023 I would like to convey the utmost importance of planning the correct development of property relations after marriage. About Carmen Calderón “I am a lawyer specializing in the prevention and resolution of highly complex judicial cases relating to marital property disputes, which, in addition to the unfolding family crisis, have related problems that require coordinated action. I have my own Family Law boutique, the first in Spain to establish the concept of pre-marital prevention as a type of service focused on client protection, preservation of the interests at stake, and the guarantee of minimal wear and tear. “My working method consists of approaching the situation from a global perspective, starting from an in-depth analysis to identify the legal and personal aspects to consider, advising the clients in each of their decisions, and directing them towards the ideal solution. “I have a solid background in Private Civil Law, having dedicated myself specifically to Family Law for more than twenty years. Throughout my professional career, I have participated in a thousand procedures. I have an innate ability to psychologically analyze situations and manage emotional responses. All of this provides me with the necessary preparation to resolve any type of conflict, anticipating the consequences, preserving the interests at stake, and guaranteeing minimal wear and tear.” Contact Carmen Calderón Email: Tel: +34 676 947 492

How have recent advancements in technology changed the intellectual property landscape for clients nationwide and around the world? The IP landscape is constantly changing as technology advancements continue to shape the products and services consumers and businesses use and enjoy. Two decades ago, Napster and pirated MP3s disrupted and upended the music distribution model and, after copyright laws caught up and addressed online streaming, today’s music and video streaming platforms and revenue models emerged. Two years ago, the buzz was all about NFTs and what IP rights are implicated by digital content tied to a token on the blockchain, and I was busy doing NFT deals with celebrities and brand owners such as Katy Perry, Dionne Warwick and the World Poker Tour. While the NFT hype may be subsiding (except in the online game/ metaverse space), the current buzz is now around Artificial Intelligence (AI) technologies, which appear be here to stay. While I have been advising clients on AI technologies and data licensing models for at least 5 years, the courts are just now starting to address the copyright and other implications from the use of existing content to train these AI models. The U.S. Copyright and Patent & Trademark Offices are not recognizing copyright protections for AI-generated images or patent rights for AI-created inventions. That view may be too narrow if human contributions and improvements are not recognized and cannot be protected and monetized. 10 LAWYER MONTHLY DECEMBER 2023 Current Trends in Intellectual Property & Technology Transactions Contact Michael Plumleigh Partner, M&H LLP 525 Middlefield Road, Suite 250 Menlo Park, CA 94025 Tel: 650.331.7005 Email: michael-plumleigh/ About M&H LLP M&H LLP is a premier corporate, employment and technology law boutique located in Silicon Valley and New York. M&H advises entrepreneurs, startups, investors, emerging growth and established technology, life science, clean tech, digital media and other companies at all stages of development.

existing legal and contractual models. As an example, developers who use open source AI software tools to develop portions of their proprietary software codebase may not be able to obtain copyright protection for the overall software product if they are unable to separately identify the human and AIcreated code, or the inventor for patent purposes. And even then, under current Copyright Office and PTO guidance, that still may not be enough. Trade secret protections (maintaining confidentiality where practical) will remain important as a fallback, but AI adopters need to be mindful that prompts and inputs into an AI tool are generally not confidential and could result in the loss of trade secret protection. In light of the lag time, or even inability to secure comprehensive legal protections for new technologies (e.g., with AI today), innovators will need to weigh the ramifications of lessened or no protection against being first to market and capturing a significant What are the key considerations regarding the protecting and enforcement of IP rights relating to the development of new and emerging technology? Each technology advancement brings its own unique challenges for innovators hoping to protect the fruits of their efforts and investment. As mentioned, it can take time for laws to catch up. In the interim, companies will need to use and rely on the traditional IP avenues (copyright, patent, trademark and trade secrets) to protect and enforce their IP rights in new technologies they are developing and planning to commercialize. As legal advisors, we have to be creative to fit new technologies into WWW.LAWYER-MONTHLY.COM 11 While the NFT hype may be subsiding, the current buzz is now around Artificial Intelligence (AI) technologies, which appear be here to stay. Michael Plumleigh Partner at M&H LLP

is also important. Customers expect indemnification from the technology provider, but it is also important that the customer provide indemnification for its use of the product or service, which may implicate third party IP rights for user content processed using the product and privacy rights for user information being collected or processed by the customer. What strategic measures can be taken for firms looking to commercialize their intellectual property? Strategic IP planning needs to begin on day one, making sure that all IP rights utilized in the company’s products are owned or properly licensed. This involves having appropriate IP and confidentiality agreements in place with founders, employees, consultants and service providers who contribute to the development or improvement of the acquisition of technology and IP rights, or to protect IP and technology in products that are being distributed and commercialized, are necessary and vital in order to obtain, protect and define the scope of the innovator’s IP and limit the rights provided to the customer. It is very important that companies have agreements with their service providers that include express assignments of all IP rights in work product and deliverables. Simply paying for the work is not enough to transfer ownership of the IP rights, as many companies have discovered. This is important not only for acquiring technology but also for marketing collateral, logos and website content. In addition to defining and retaining ownership rights, commercialization agreements need to include use restrictions, defined but limited warranty obligations and disclaimers, and limitations of liability that are appropriate for the nature of the products and services being provided as well as how they will be used. Indemnification from third party infringement and other claims market share before others catch up. Companies (as technology developers and users) should also develop an AI Usage Policy for their employees and providers to limit the risk of improper usage in proprietary technologies as well as the risks associated with AIgenerated content. What is the scope and purpose of technology transfer agreements, and how can intellectual property rights be best protected for companies involved with licensing, distributing and commercializing new products and technology? Written agreements, whether to document the development and 12 LAWYER MONTHLY DECEMBER 2023

About Michael Plumleigh Michael Plumleigh is a partner and head of the IP & Tech Transactions practice at M&H LLP. Mike has been advising clients on intellectual property, technology and media matters for over 30 years, and offers the perspective of having worked in-house as well as serving as outside counsel for hundreds of technology, media and life science/biotech companies. Mike has extensive experience advising early stage and established companies on complex corporate partnering, M&A, licensing and intellectual property transactions; AI data services, software license, SaaS and cloud services agreements; OEM and distribution channel agreements; product development, manufacture, supply and marketing agreements; branding, IP commercialization and portfolio management; and counseling on open source software, Internet digital media, export, and international privacy laws. Prior to joining M&H, Mike was Director of Legal Affairs at Via Licensing Corp. (part of Dolby Labs), where he was responsible for the development and negotiation of standards-based patent licensing programs (patent pools), monetizing IP on behalf of many of the world’s largest electronics manufacturers and technology innovators. Prior to Via, Mike was Vice President, General Counsel and Secretary at Critical Path, Inc., a leading provider of mobile messaging and digital media solutions and services. Before going in house, Mike was a partner and co-founder of the Technology Transactions and Privacy practice groups in the San Francisco office of Cooley LLP and a partner in the Technology Group at Brobeck Phleger & Harrison LLP. Prior to pursuing law, Mike was a professional musician, performing and touring with the Buddy Rich and Harry James Orchestras, doing shows and recording work in Los Angeles, and engagements with jazz greats Clark Terry, Mel Tormé, Joe Williams and Louie Bellson. More recently Mike has performed with Jimmy Buffett, Kix Brooks, the Zak Brown Band, Steve Miller and Bob Weir. Strategic IP planning needs to begin on day one, making sure that all IP rights utilized in the company’s products are owned or properly licensed. or regulations apart from some early FTC guidance based on existing consumer protection laws. Now, new statutes are being passed almost monthly, and cloud and web service providers need to consider multiple state laws as well as international privacy laws such as the GDPR. Privacy policies (and data use practices) need to address and comply with all of the applicable laws and need to be updated regularly as the laws change. As part of this overlapping patchwork of privacy and data security laws, there are increasing requirements for companies to implement sophisticated data security systems and protections designed to prevent data breaches, along with internal tracking, audit and other legal compliance measures. Typically, in addition to a broad compliance with law obligation, a separate data processing agreement is attached or signed along with each cloud service agreement, usually mandated by the customer’s internal policies. As SaaS and cloud services begin to incorporate AI capabilities and features into their service platforms, they need to have terms and conditions in place that cover or limit the use of AI, and similarly, customers require protections to be added to cloud services agreements to protect against potential liability from that usage. technology. Companies should have patent and IP policies for tracking internal product development to make sure that copyrights, patent rights and trademark rights that are important to the company’s current and future product strategies are appropriately documented and registered. Providers and users of cloud services and SaaS solutions are facing ever increasing and changing privacy and legal issues in cloud computing, including new legal and security requirements and the risks of storing sensitive data in the cloud. What are the main challenges facing cloud companies? When we began developing the first privacy policies for ecommerce companies over 20 years ago, they were simple disclosures of what information was being collected and how it would be used. Prior to special applicability laws such as HIPAA (patient information) and GLB (financial information), there were few statutes WWW.LAWYER-MONTHLY.COM 13


Navigating UK Corporate Immigration with Joanne Taylor, Partner at Magrath Sheldrick LLP WWW.LAWYER-MONTHLY.COM 15 related to skill level, English language proficiency, and salary. There are also other categories, such as Global Business Mobility and Global Talent for individuals who are leading or a potential leader in academia, arts and culture or technology. Has UK immigration law become stricter in recent years and if so, how has this impacted business looking to hire migrants? The general view is that the UK immigration law has become stricter in recent years, especially with the end of the free movement of people between the UK and the European Union (EU) due to Brexit, EU nationals became subject to the same immigration rules as non-EU nationals. This shift impacted the ease with which EU nationals could work and reside in the UK. Businesses that rely on lower-skilled and lower-paid workers from the EU, such as in agriculture, hospitality, construction and social care, face significant challenges in filling vacancies and retaining staff. They may have Can you provide an overview of the current UK immigration rules regarding entering the UK for business purposes? The Business Visitor route is designed for individuals intending to visit the UK for short periods for specific businessrelated activities. This could include attending meetings, conferences, training sessions, negotiating contracts, and other similar activities. Business visitors are typically allowed to stay in the UK for up to six months, but the exact duration may vary based on the specific purpose of the visit. It’s important to note that the Business Visitor route does not permit individuals to undertake employment or engage in activities that would typically require a work visa. For work-related activities, individuals are required to apply for the appropriate work visa. Individuals who wish to work in the UK can be sponsored under the Skilled Worker category. The Skilled Worker route is a key component of the pointsbased system. To qualify for this visa, individuals must have a job offer from a UK employer with a valid sponsorship license and meet specific criteria Joanne Taylor is a Partner in the UK Immigration team at Magrath Sheldrick LLP. She focuses on Business Immigration and provides strategic and practical advice for those navigating the complex UK Immigration rules. Magrath Sheldrick LLP is a well-established law firm based in the United Kingdom, specialising in Immigration and Employment law. The firm has a strong reputation for providing highquality legal services and is recognized for its expertise in assisting individuals and businesses with their immigration needs. The firm’s commitment to client-focused solutions and attention to detail has contributed to its standing as a leading immigration law practice.

to increase wages, invest in training, automation or technology, or reduce their output or quality. Some may relocate their business outside of the UK. Businesses that need higher-skilled and higher-paid workers from the EU, such as in finance, technology, engineering and education, may find it easier to recruit them under the Points Based system, as they will face the same rules as non-EU workers. However, they will also have to bear the costs and administrative burdens of sponsoring visas and may face more competition from other countries. Businesses that employ international students or graduates from the UK may benefit from the Graduate visa, which allows individuals to stay and work in the UK for two or 3 years after graduation, in any job. This may increase the pool of talent and skills available to employers and help them retain workers who have already integrated into the UK culture and society. However, with regards to Students the government has recently changed the rules limiting the rules for switching and dependants. Businesses that operate in the health and care sector may benefit from the health and care visa, which provides a streamlined and cheaper process for workers coming to the UK to work in the NHS and social care. This visa only covers certain occupations and does not address the wider issues of low pay, poor working conditions and high turnover in the sector. What does a business need to consider when looking to hire migrants? There are many things that a business needs to consider from an immigration perspective when looking to hire migrants from outside the UK. Some main considerations are: • The type of visa that the migrant worker will need to apply for. Different visas have different requirements, such as skill level, salary, language ability, and sponsorship. The business should check the eligibility criteria and the application process for each visa option. • Visa costs and application processing times. Each certificate of Sponsorship costs £239.00, the application fees range from £284.00 – £2,420.00 per person, depending on visa type, visa duration, location of application and whether priority processing services are selected. Applying from within the UK for a work visa can take 8 weeks (or 2-5 days if a priority service is purchased). If applying from outside of the UK, quoted visa processing times stand at approximately 3 weeks for work visas (or 5 days if a priority service is purchased). • The cost and time involved in obtaining a sponsor licence. The business will need to have a sponsor licence to hire most workers from outside the UK. The sponsor licence application fee ranges from £536 to £1,476, depending on the size of the business. The business will also need to pay the immigration skills charge for each worker they sponsor, which is £1,000 per year for medium or large sponsors, and £364 per year for small or charitable sponsors. The sponsor licence application usually takes up to 8 weeks, but it can take up to 18 weeks to process. A priority service is available for Sponsor Licence applications but currently there are limited priority slots which are quite difficult to obtain. • The availability and suitability of the migrant workers. The business should conduct a thorough recruitment process to find the best candidates for the job. The business should also consider the cultural and linguistic diversity of the migrant workers, and how they will integrate with the existing workforce and customers. • The legal and compliance obligations. The business should comply with the immigration rules and the sponsor duties, such as reporting any changes in the migrant workers’ circumstances, keeping records of their documents and attendance, and co-operating with the Home Office. The business should also comply with their duty to prevent illegal working. How does a company prevent illegal working and what are the consequences for employing an illegal worker? All UK employers (whether sponsors or not) are required to prevent illegal working by conducting a “right to work 16 LAWYER MONTHLY DECEMBER 2023 The general view is that the UK immigration law has become stricter in recent years, especially with the end of the free movement of people between the UK and the European Union (EU) due to Brexit, EU nationals became subject to the same immigration rules as non-EU nationals.

check” on all employees before the start of their employment. If an employer is found to have employed an illegal worker and has not conducted valid right to work checks, they risk a civil penalty. Employers will need to make sure that they have systems in place to conduct and record right to work checks in a legally compliant way, and that they avoid any discriminatory treatment of individuals in how these checks are carried out. Do you envisage a change in UK business immigration rules for 2024? Immigration policy is inextricably linked to the UK political landscape and with a General Election in 2024, all of those impacted by UK Immigration changes will need to keep an eye on what the next chapter will bring. The developments reflect the UK’s evolving approach to managing immigration, balancing the needs of its labour market and educational institutions with broader policy objectives. We expect 2024 to be a busy year for Immigration changes: **Increase in Immigration Health Surcharge**: The UK government has proposed a considerable increase in the immigration health surcharge, effective from January 16, 2024. The primary rate will rise from £624 per year to £1,035 per annum. This change will impact all applicants, including students and those under 18 years of age (although they will be subject to a lower fee). **Anticipated Skilled Worker Visa Changes** The Home Secretary has announced a package of measures in December 2023 which aim to significantly reduce legal migration into the UK. The “five-point plan”, which will come into force in Spring 2024, consists of the following changes: • Skilled worker minimum salary change: the threshold for applications under the Skilled Worker route will increase to £38,700 (from the current £26,200), with WWW.LAWYER-MONTHLY.COM 17 a lower salary threshold applicable to health and care workers. • Shortage Occupation List: The 20% discount applied to minimum salaries for applicants under the Shortage Occupation list (SOL) will be axed. In addition, the Home Secretary has asked the Migration Advisory Committee (MAC) to review the entirety of the SOL given the new minimum salary threshold for Skilled Workers, with a view to reducing the number of eligible occupations on the SOL. • Family Visas: The minimum salary threshold to sponsor a family member will increase to £38,700 (from the current £18,600 which was set in 2012) in line with the changes to the Skilled Worker threshold. • Student and Graduate visas: The government will ask the MAC to review the Graduate Route to “prevent abuse and protect the integrity and quality of UK Higher Education”. • Health and Care visas: Overseas care workers will not be able to bring family dependents to the UK. Care firms that want to sponsor people to come to the UK will need to be regulated by the Care Quality Commission. **Increase in Civil Penalty charges for illegal working**. The maximum illegal working penalty is due to increase from £20,000 to £60,000 in January 2024. **Further digitalisation of borders**. The continuing role out of the Electronic Travel Authorisation “ETA” is expected with Bahrain, Jordan, Kuwait, Oman, Saudi Arabia and United Arab Emirates being able to apply from 1 February 2024. Further countries will be rolled out during 2024. The ETA is a digital permission to travel to the UK and is a visa waiver system introduced to help strengthen the security of the borders. It’s also noted that British nationals will be required to comply with the European Travel Information and Authorisation System “ETIAS” from 2024. Contact Joanne Taylor Partner – UK Immigration Magrath Sheldrick LLP | 22 Chancery Lane, London, WC2A 1LS | DX 149 (Chancery Lane) DDI: 020 7317 6765 | Fax: 020 7317 6766 E-mail: Web:

In Belgium we have a well-developed infrastructure, a highly skilled workforce, numerous leading research centres, the development of new technologies and a multilingual environment. All this, combined with our central location within Europe and our logistical facilities (including the ports of Zeebrugge, Ghent and Antwerp), ensures that we have many advantages for international trade in Belgium. The figures do not lie. According to the Belgian Foreign Trade Agency, Belgium is the fourth largest exporter in the European Union (after Germany, the Netherlands and Italy) and the eighth largest exporter in the world. On the import side, Belgium ranks 5th in the European Union (after Germany, the Netherlands, France and Italy) and 13th in the world. Belgium also enjoys a politically stable environment. At both federal and regional level, the government is strongly committed to supporting businesses. For example, since 2017, the corporate tax rate has been reduced in two stages from 34% to 25% (and under certain conditions to 20% for the first bracket of EUR 100,000 of taxable profit). At the same time, incentives, subsidies and tax support measures (e.g. in the context of financing start-ups, innovation, research and development, etc.) are being used. In addition, a number of far-reaching and important modernisations of economic, company and civil law have been undertaken. One of the aims was to bring the legal framework more into line with the modern needs of businesses. Overall, therefore, Belgium can be said to have a fairly favourable business environment. What is the impact of the Belgian Companies Code 2019 on companies? The Belgian Companies Code underwent a major reform in 2019 18 LAWYER MONTHLY DECEMBER 2023 Conducting Business in Belgium: Is Belgium a competitive place to do business compared to other European Union countries? Contact Michael Boudry Partner, Novius Lawyers Email: Tel: +32 2 344 44 45 | +32 5 628 80 81 About Novius Novius is a law firm providing business legal advice, mainly in the areas of tax, corporate, insolvency and estate planning. Novius consists of a dynamic team that seeks pragmatic solutions for its clients in a confidential and discreet manner. Novius shares its passion for business with its clients and advises from a natural understanding of their needs, paying attention to the necessary details that make the difference. Novius therefore strives to demonstrate the highest quality and professionalism through a distinctive and flexible approach.

What changes has the new Belgian Companies Code 2019 brought? As mentioned above, the legislator’s intention was to modernise and simplify Belgian corporate law. All in all, as far as I am concerned, this has not resulted in any particularly revolutionary, changes to company law. Nevertheless, some changes are quite significant in practice. For example, a major change was the abolition of the concept of minimum share capital in the private limited company (BV/SRL). The requirement to actually pay up capital at the time of incorporation has also been abolished. On the one hand, this removes some in order to modernise and simplify company law. The new code limited the number of company forms and provided a more flexible framework. One consequence was that existing companies had to revise their articles of association to comply with the new law by 31 December 2023. According to the Belgian Federation of Notaries, at the end of April 2023, around two-thirds of existing companies still had to comply, which led to a rush on notaries in (especially) the last quarter of 2023. It can be assumed that many companies will not meet the deadline of 31 December 2023 (which, incidentally, will not immediately lead to sanctions, but possibly to the invalidity of certain clauses of the articles of association). WWW.LAWYER-MONTHLY.COM 19 Michael Boudry Partner at Novius Overall, therefore, Belgium can be said to have a fairly favourable business environment.

financial barriers, making it easier to set up a (limited liability) company. On the other hand, it means that the financial planning at the time of incorporation becomes more important. Thanks to the flexibility of the new law, the private limited company (BV/SRL) has become more than ever the reference company (even for large companies). In particular, this company can now issue all the securities that can be issued within a a public limited company (NV/ SA) (with the exception of dividend-right certificates) and can also be listed on the stock exchange. Another important change was the increased flexibility in governance structures and decision-making processes. For example, a public limited company (NV/SA) can now include a single shareholder (e.g. a holding company). It is also now possible to have a single director in a public limited company (NV/ SA). In addition, digital communication, digital meetings and electronic decisionmaking (which had its breakthrough in the days of Corona) are increasingly encouraged and accepted. 20 LAWYER MONTHLY DECEMBER 2023 In general, a distinction can be made between companies with full legal personality and companies without (full) legal personality.

Among the unlimited liability companies are the partnerships. Partnerships include the simple partnership (maatschap/société simple), the general partnership (VOF/SNC) and the limited partnership (CommV/SComm). These partnerships are formed intuitu personae and entail unlimited and joint and several liability of the partners (in principle, with the exception of the “silent partner” in the limited partnership). These companies are less formal and can be formed by private agreement. Unfortunately, in practice, lack of knowledge or bad advice (at the time of incorporation or later, e.g. at the time of sale) often leads to undesirable situations (especially in the event of insolvency). Are there capital requirements to be taken into account when setting up different types of companies? As mentioned above, the new Companies Code has completely abolished capital requirements for the private limited company (BV/SRL). A minimum capital of at least EUR 61,500 is required for the formation of a public limited company (NV/SA). However, indifferent of the minimum capital requirement the limited liability companies must always have a sufficient initial capital at the time of incorporation to conduct the proposed activity for a period of two years. The amount of this initial capital must be substantiated in the financial plan. This initial capital must be fully plegded and - unless otherwise provided for in the memorandum and articles of association - must in principle be fully paid up at the time of incorporation. The responsibility for this also lies with the founder(s), whose personal liability has also been retained. Are there any general requirements or restrictions on the appointment of directors, such as a local residence or nationality requirement? From a company law perspective, there are few or no restrictions on directors or representatives of Belgian companies. - There is no statutory nationality requirement. However, nothing prevents the company’s articles of association from stipulating a nationality requirement. - No residency requirement. Directors who are resident abroad, irrespective of their nationality, are deemed to be resident (for the purposes of their directorship and for the duration thereof) at the address of the company’s registered office. However, local representation may be practical for administrative purposes or may be required by other legislation to obtain licences for certain activities (e.g. customs warehousing). - No age requirement. Again, the articles of association may provide for such requirements. Indeed, it does not seem appropriate that minors could be entrusted with a management mandate. - No educational or competence requirements. However, depending on the sector in which one operates (e.g. financial or insurance sector, regulated professions, etc.), there may be competence or training requirements. It should be noted, however, that the directorship must be exercised by virtue of the self-employed status. This does not preclude a director from being an employee at the same time, for other duties and under the authority of a body or agent within the same company. Not to be overlooked is the financial cap on directors’ liability in the new code. One change that has received less attention is that it is now possible for any type of company to adopt internal regulations, if the articles of association so provide. This is a welcome technique to regulate the internal kitchen in a way that binds both the company and its organs, and to strike a balance between the articles of association on the one hand and shareholders’ agreements on the other. What are the different types of vehicles/ legal forms for doing business in Belgium? In general, a distinction can be made between companies with full legal personality and companies without (full) legal personality. The main difference is the limited or unlimited liability of the shareholders. And, of course, the extent to which the company is regulated (including with regard to financial reporting, profit distribution, liability, formalities and disclosure, etc.). The choice between an incorporated and an unincorporated company depends on many factors. Ultimately, however, the specific needs of the proposed activity must always be taken into account. Obviously, it is preferable not to carry out a high-risk activity in a company with unlimited liability. Among the limited liability companies, the most common are the public limited company (NV/SA), the private limited company (BV/SRL) and the cooperative society (CV/SC). These companies can only be formed by notarial deed. There are strict reporting requirements and the liability of shareholders is generally limited to their contributions. WWW.LAWYER-MONTHLY.COM 21

regarding the composition, functioning or decision-making of the board of directors. What about directors’ liability? When thinking about directors’ liability, we should distinguish between internal liability (towards the company) and external liability (towards third parties). Internal liability (to the company) In relation to the company, directors have a legal duty to look after the interests of the company and to act loyally and in good faith. In practice, this means, among other things, that directors have a noncompete obligation and a duty of discretion and confidentiality towards the company. The corporate opportunity doctrine, whereby directors must develop business opportunities within the company (and not misappropriate them for their own benefit), is also gradually finding its way into Belgian practice on the basis of the duty of loyalty. Directors are liable to the company (on both contractual and non-contractual For listed companies, gender quotas should also be taken into account. How is the company governed and managed, i.e. by directors or others? And how do they make decisions? The operation and management of companies in Belgium varies according to the legal structure chosen. In a limited company (BV/SRL) and a cooperative society (CV/SC), management is delegated to one or more directors. In principle, the board of directors in these companies does not act collectively but competitively (each director can take all actions). The articles of association may provide that they form a college (i.e. decide by majority). What is often overlooked in practice, however, is that opting for a collegiate board also entails joint and several liability on the part of the directors. Directors in these companies are in principle appointed for an indefinite period and can be removed at any time. Directors in these companies can also be appointed in the articles of association (which offers better protection against dismissal, for example if a director is also a minority shareholder and wants to retain some control). In a public limited company (NV/SA), the management can be organised in different ways. One can opt for a “monistic” board (i.e. a board consisting in principle of at least three directors, or a sole director if the articles of association so provide) or a “dualistic” board (i.e. a supervisory board with an executive committee below it). In public limited companies (NV/SA), the principle of collegiate management applies. This means that decisions are taken by majority vote. However, other arrangements are possible. Directors in public limited companies (NV/SA) are appointed for a maximum of six years. A sole director may be appointed for an indefinite period and may also be appointed by the articles of association. The day-to-day management of both private limited companies (BV/SRL), cooperative societies (CV/SC) and public limited companies (NV/SA) may be entrusted to one or more persons acting individually or jointly as a board. Exactly what this day-to-day management entails has been defined by the Supreme Court in the past, a definition that will be enshrined in law in 2019. It includes, on the one hand, decisions that do not go beyond the needs of the day-to-day life of the company and, on the other hand, acts or decisions that, because of their minor importance or urgency, do not justify the intervention of the governing body. The principle of competitive governance applies to partnerships. This means that each director has full powers and can take all decisions in the name and on behalf of the company alone. Much can be regulated in the articles of association or internal regulations 22 LAWYER MONTHLY DECEMBER 2023

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