Understand Your Rights. Solve Your Legal Problems
Gary Lineker will host his podcast The Rest Is Football on Netflix during the 2026 FIFA World Cup, reaching millions of UK and international viewers.
The Event
Gary Lineker has signed a multi-million-pound deal with Netflix to host his podcast, The Rest Is Football, during the 2026 FIFA World Cup. The tournament will take place from June 11 to July 19 across the United States, Canada, and Mexico. This follows Lineker’s departure from the BBC earlier in 2025.
Why It Matters
The move marks a major shift in sports media, with a high-profile presenter leaving free-to-air broadcasting for a subscription-based streaming platform. It affects both UK audiences accustomed to BBC coverage and international viewers, and illustrates the growing influence of streaming services in global sports coverage.
Lineker’s podcast will air daily during the World Cup, up from three episodes per week.
Co-hosts Alan Shearer and Micah Richards will join Lineker throughout the tournament.
The deal is reported to dwarf Lineker’s previous BBC contract, where he earned £1.35 million annually for presenting Match of the Day.
His production company, Goalhanger, negotiated the licensing rights, with Netflix expanding its podcasting efforts internationally.
The BBC acknowledged Lineker’s departure and highlighted his 25-year contribution, confirming he will not receive a final payout.
Fans have discussed the move on social media, focusing on the multi-million-pound value and the switch to a streaming platform.
Netflix has not released specific viewership projections or episode schedules beyond the tournament.
UK viewers will need a Netflix subscription to access the daily episodes, unlike previous free BBC coverage.
International audiences will gain broader access, with Netflix distributing the podcast globally.
The deal also signals a trend toward subscription-based coverage of major sports events, potentially changing how fans engage with the World Cup.
Media reports indicate this is one of the largest hosting contracts for a UK football presenter in recent decades.
Lineker’s daily show format, combined with international distribution, represents a notable expansion of his audience beyond traditional BBC viewers.
This multi-million-pound contract sets a benchmark for future sports broadcasting deals.
Netflix will host The Rest Is Football during the tournament.
Official episode schedules will be published on Netflix and the podcast’s social media channels.
Free coverage remains available through FIFA-licensed broadcasters.
Episodes are expected daily from June 11 to July 19, 2026, replacing the previous tri-weekly schedule.
Alan Shearer and Micah Richards will join Lineker for tournament coverage.
Following his BBC departure in 2025, Lineker’s podcast became available for licensing to Netflix, allowing international distribution.
A Netflix subscription is required, though some prior episodes remain on Spotify and YouTube.
Reports suggest the multi-million-pound deal surpasses Lineker’s BBC salary and is among the highest for UK football presenters in recent decades.
Netflix is expected to announce official launch dates and schedules ahead of the tournament.
Promotional campaigns will align with the World Cup kickoff on June 11.
The BBC will continue independent tournament coverage under separate media agreements.
Gary Lineker’s move to Netflix represents a major shift in sports broadcasting, with a multi-million-pound deal that affects viewing accessibility and fan engagement. Both UK and international audiences should monitor Netflix for schedules and co-host appearances. The deal reflects broader trends in subscription-based sports media and the increasing global reach of football content.
Legal and international relations theorists are often puzzled. They come face to face with empirical realities that are complex and contradictory, imbued with double standards and differing courses of action, although the cases can be very similar and involve violation of international humanitarian law. Thus, they soon come to realise that power, not law, is the element that governs social and political relations. Some examples in the European theatre will suffice to demonstrate this.
In March 2022, the International Court of Justice (ICJ), which is attached to the UN and handles cases involving states – the International Criminal Court (ICC) being a different Court based on the “Statute of Rome” of 1998, and dealing with crimes by individuals – issued a sharp warning against Russia’s invasion of Ukraine. It ruled that Russia should immediately stop military operations and restore the legal border between itself and Ukraine. President Biden and State Department officials were outspoken in defending Ukraine’s rights and condemning the invasion as an act of aggression against international law. Yet when, on 24 May 2024, the same Court produced a similar order asking Israel to comply with its obligation under the Genocide Convention and immediately halt its offensive in Rafah, United States officials and Biden himself remained silent. The official position of the United States on the matter is that “Israel’s incursion of Rafah has been a limited operation to root out remaining Hamas fighters, while avoiding undue civilian harm and to free around 100 living and dead Israeli hostages” (U.S. silent as global condemnation of Israel’s Rafah offensive grows - The Washington Post). Clearly, this is Israel’s position adopted by the United States in its entirety.
In July 1974 the island of Cyprus was brusquely divided into two parts. Turkey, the invader, forced partition and population exchange. The Greek Cypriots (about 167,000) were forced to move to the South and the Turkish Cypriots, initially held in the British military bases there, were uprooted to the North, where Turkey installed a puppet regime. The Republic of Cyprus, founded in 1960, is a member of the UN, although its independence depended on a colonial “Treaty of Guarantee” that contravened the UN Charter (Cyprus: A Modern History | Request PDF (researchgate.net)). But Turkey’s invasion was illegal both from the point of view of the UN Charter and the “Treaty of Guarantee”. This is because the treaty stipulated that the three “guaranteeing powers” had the right to intervene, but only in order to restore the status quo ante, that is the legitimate government of the Republic of Cyprus. Turkey did not do that. Instead, it turned the northern third of the island into a security zone, disappointed the Turkish Cypriots, many of whom migrated abroad, mostly to the UK, and transferred settlers from mainland Turkey, placing them in the abandoned houses of Greek Cypriots. Neither the United States nor Britain, a guarantor power, moved to stop the illegal Turkish invasion, turning a blind eye to Turkey’s actions. Today, the issue appears to have been swept under the carpet, especially since the remaining two thirds of the island, the truncated Republic of Cyprus, is a member of the EU and the Eurozone. However, from the point of view of international law, it remains an issue of illegal invasion and occupation, as Turkey forcibly uprooted over 200,000 Cypriots, both Turkish and Greek Cypriots.
Similar arguments have been advanced by legal experts as regards the bombing of Belgrade by NATO from March to June 1999, ostensibly on humanitarian grounds, whereas Israel and Turkey go unpunished for their respective maltreatment of Palestinians and Kurds. The list is long. There are, of course, counter-arguments. Putin – and not only – argues that he had warned the West that any expansion of NATO into Ukraine would be met by force. Turkey maintains that her intervention was necessitated by the Greek junta’s coup against the legitimate government of Archbishop Makarios and that Greece should be grateful as it was her Cyprus operation that triggered the fall of the junta and the restoration of democracy. And Israel’s current position is that its offensive in Gaza is a response to Hamas’ unprecedented and surprising attack on 7 October 2023. In fact, this was the key argument of the Israeli judge, Aharon Barak, who sits on the 15-member ICJ and voted, together with Ugandan jurist Julia Subutinde, against the decision.
However, Israel’s recent attack on Rafah pushed the goalposts of comparisons further, distancing wider layers of media and public opinion from its point of view. No other conflict, bar confirmed genocidal cases such as that of Rwanda, has shown so much recklessness and disregard of international law on the part of the powerful side, and so much indifference on the part of the key great powers to contain it. The United States, Britain, Germany or the EU as a whole have given no signs of joint or separate action towards enforcing peace on Israel. But both Israeli and Hamas leaders have now been put on the spot by the ICC. Many friendly media sources go as far as to ask whether Israel has a policy of starving the Gazans, since the Rafah and the Philadelphi corridors with Egypt are closed (The ICC arrest request is a fire alarm for Israel. Will it take heed? | Jo-Ann Mort | The Guardian). Israel argues that the corridors/crossings are being used for supplying Hamas with weaponry and funds, but this is a moot point. What matters from a humanitarian and legal perspective is that aid cannot reach the civilians, especially women and children, caught in the cross-fire of the parties in conflict. Moreover, the conflict is deeply asymmetrical. The Israeli Defence Force (IDF) boasts one of the best-trained and best (technologically) equipped armed forces in the world. Hamas’ weaponry is elementary. A new peace process initiated by Egypt, Qatar and the United States has stalled. At the moment, the Europeans seem to be busy with the Euro-elections of 9 June, whereas in Britain the public debate seems to have shifted to the forthcoming general election of 4 July. But the landscape in the United States is different. Paradoxically, American civil society is vastly more energetic in condemning Israel’s war in Gaza than in Europe or the UK. Thus, President Biden may have a chance to be re-elected if he rectifies his position on the conflict (Opinion | In Gaza, Biden Gets the Chance to Do the Right Thing - The New York Times (nytimes.com)).
International law is increasingly being seen as a dependent and subordinate variable of power-politics. It is used at convenience in order to justify action on somebody and inaction on somebody else. Thus, whereas the law seems to be an ideal close to perfection, in real life there are double standards. This being the case, the situation in Gaza has taken a dramatic turn and exceeds many similar situations in the past. One of the greatest German-Jewish philosophers of the 20th century put it as follows: “only the law that is studied and no longer practiced is the gateway to justice” (Walter Benjamin).
September 2023 marks my 20th anniversary at ICSID – time flies. As a Senior Legal Counsel at ICSID, I serve as secretary to tribunals, conciliation commissions, ad hoc committees and mediators in proceedings involving disputes spanning a variety of economic sectors and legal instruments.
I also lead a team of ICSID counsel and paralegals handling ICSID dispute settlement proceedings. I further lead ICSID’s investor-state mediation activities, including the drafting of the recently released ICSID Mediation Rules and amended conciliation frameworks. In this capacity, I’ve also conducted investment mediation trainings for mediators and government officials and supported our World Bank colleagues in various capacity building initiatives.
Outside of my activities in the mediation sphere, I’ve also worked in ICSID’s institutional team, working on ICSID’s data analysis and statistics program. Prior to joining ICSID, I served in the World Bank’s Legal Vice Presidency and the Inspection Panel.
I would start by noting that international investment dispute settlement has — for several decades now—been an incredibly dynamic area. That dynamism continues today, as states and other stakeholders work to evolve both substantive and procedural aspects of ISDS. I can highlight a few examples in which ICSID has played a pivotal role.
One is the recently concluded Code of Conduct for Arbitrators in International Investment Disputes. The Code has been under development by ICSID and the UN since 2017 and was adopted by the United Nations Commission on International Trade Law (UNCITRAL) in July 2023. As the name implies, the Code is tailored to investment arbitration. It reinforces arbitrators’ duty of independence and impartiality, and among aspects of this core duty, the Code provides express guidance with respect to double-hatting, disclosure requirements and the requirement to charge reasonable fees and expenses, amongst other issues.
Another example of a reform priority for ISDS stakeholders that ICSID has played a key role in is ensuring a time- and cost-effective dispute resolution process. With respect to ICSID arbitrations, there are many different factors that influence the time it takes to complete a case, and one of those is the procedural framework that guides the conduct of the arbitration. ICSID recently completed a major modernisation of its procedural rules, in which the optimsation of efficiency in arbitration was one of the key objectives. We achieved this through a variety of means, such as stipulating precise timelines for various steps and outputs (like the rendering of decisions and awards).
I would start by noting that international investment dispute settlement has — for several decades now—been an incredibly dynamic area.
A third example is the adoption of the ICSID Mediation Rules, which came into effect last year. These mark the first institutional mediation rules of an international organisation designed specifically for investment disputes. The rules are certainly timely given the increased interest in the amicable resolution of disputes, problems or grievances between states and state entities and investors. The ICSID Mediation Rules are the continuation of a longer trend we have witnessed over the past decade in investment treaty drafting, work by the Energy Charter community, ICSID’s own data on settlement and the 30-plus investment mediations that have already taken place.
There are many other topics that fall under the banner of ISDS reform, but hopefully this gives a flavor of ICSID’s contribution to that agenda.
The Singapore Convention was a milestone for the advancement of international amicable dispute settlement generally, and instrumental in the context of investment mediation. The ICSID Mediation Rules were developed while the international community was working on the drafting of the Singapore Convention, and we worked closely with our colleagues at UNCITRAL to ensure the ICSID mediation and conciliation frameworks are aligned with the Singapore Convention’s requirements, should parties wish to avail themselves of the Convention in the context of enforcing a settlement agreement reached in an ICSID mediation or conciliation.
The Singapore Convention also had a more general halo effect for mediation and its acceptance as a viable dispute resolution process. The annual Singapore Convention Week, which features panels and workshops on international dispute resolution, including that of investment mediation, plays an important role in sharing and fostering knowledge and understanding of mediation in the investor-state context.
I think I speak for all of my colleagues when I say that first and foremost our priority is to provide world-class services to parties, commissions, mediators and tribunals in ICSID proceedings. That is a continual process that involves assessing and refining best practices, investing in new technology and updating our procedures based on experience. It is very much a team effort.
On the matter of procedures, I’ve mentioned that ICSID launched amended procedural rules for arbitration and conciliation last year, as well as entirely new rules for investment mediation. We now have a substantial body of cases under the new rules, and communicating lessons learned is — and will continue to be — important. We recently published a report on the first year of practice of the 2022 ICSID Rules, and we will provide further updates and insights as cases progress under the 2022 Rules.
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In terms of the outlook for amicable dispute settlement, the international community continues to focus on this, and ICSID plays an important role in that space. At UNCITRAL, the Commission recently adopted in July 2023 the Guidelines on Investment Mediation and the mediation provisions to be used in investment treaties. Other examples include the ICCA Panel of Experts to Develop a Paris Agreement Conciliation Annex, or the ILA Committee on Alternative Dispute Resolution in International Law.
ICSID’s new mediation and conciliation rules have also been relied upon by disputing parties and are being tested in practice. Our World Bank colleagues are supporting structural reforms on the domestic level, including the creation of so-called lead agencies tasked with managing investment grievances. ICSID supports knowledge sharing and awareness raising of mediation and amicable dispute settlement. Given the many developments at the policy, institutional and awareness-raising level, I am optimistic about the future use of amicable investor-state dispute settlement mechanisms.
Frauke Nitschke, Team Leader
International Centre for Settlement of Investment Disputes (ICSID)
1818 H Street, N.W., Washington, D.C. 20433, USA
Tel: +1 202-473-2706
Frauke Nitschke is Team Leader and Legal Counsel for one of ICSID’s case management teams. Prior to joining ICSID in September 2003, Frauke worked at the World Bank’s inspection panel in Washington, D.C. Fluent in English, French and German, she is an accredited mediator and admitted to practice law in the State of New York and Washington, D.C.
ICSID is an international arbitration institution established in 1966 for legal dispute resolution and conciliation between international investors and states. ICSID is the world’s leading institution devoted to the settlement of international investment disputes, having administered the majority of all such cases. States have agreed on ICSID as a forum for investor-state dispute settlement in most international investment treaties and in numerous investment laws and contracts.
The film ‘The Big Short’ opens with bankers going “from the country club to the strip club”. For multinational investment opportunities the safest location is not a golden city but legal counsel’s chambers. It neatly encapsulates the need for due diligence in investment opportunities. Since the 2008 crash that the movie explores, investment compliance has become a great deal more complex, with a visible overlap in criminal law that makes it prudent to seek legal advice from experts in criminal and human rights law – as Emerging Towns & Cities Singapore (ETC) has learned to its cost
For multinational investment opportunities, the Golden City scheme in Myanmar serves as a lesson on the range of international law and guidance applicable to any arrangement, particularly when the investment concerns states vulnerable to corruption and associated with international sanctions or other geopolitical risks.The costs of a lack of due diligence can be steep. Understanding the modern connection between criminal law and corporate compliance not only helps to ensure investments do not contribute to human rights violations, but also allows those involved in the opportunities to identify the geese from the golden eggs.
The Singapore Exchange (SGX)-listed company Emerging Towns & Cities Singapore (ETC) has announced the sale of its stake in the Golden City real estate development in Myanmar for S$4 million, which involved a reported loss of S$80.2 million. The company’s announcement on 1 July 2023 to sell its controlling stake follows our legal memo, which explained the compliance mesh that international law and guidance places on companies, sponsors and those who provide the listings on the Singapore Stock Exchange (SGX).
For multinational investment opportunities, the Golden City scheme in Myanmar serves as a lesson on the range of international law and guidance applicable to any arrangement
The overarching question related to the consideration that SGX may need to give to risks of potential legal liability, reputational damage and any consequential cost implications of being connected to Golden City. ETC had obtained some limited consultancy reports, but sought more time after our memo to address the concerns raised. Eventually, the scheme was divested. The memo provides a due diligence outline for all investment and trading platforms and is a warning to ensure consultants are fully cognisant with all legal frameworks, including criminal sanctions and the potential for human rights violations.
Justice For Myanmar spokesperson Yadanar Maung said: “ETC is a longstanding business partner of the Myanmar military that is complicit in the junta’s genocide, war crimes and crimes against humanity. ETC’s divestment was necessary but raises further questions that we urge Singapore authorities to address, including whether SGX will remain exposed to the Golden City project, and the fact that a private Singapore company will continue to bankroll the murderous junta.
“We are heartened that Singapore Exchange Regulation has taken swift action against ETC over its business with the Myanmar military, and to issue sanctions guidance that strengthens the impact of Myanmar sanctions for SGX-listed companies.”
Golden City officially opened Golden City Business Centre in 2017. The development, with a net leasable area of around 150, 000 square feet, involved land use payments over a 70-year term with amounts of up to US$191.1 million to the Myanmar army. States have imposed sanctions against Myanmar in response to its government’s violent suppression of pro-democracy movements, corruption and human rights violations. Sanctions include arms and trade embargoes, asset freezing and prohibitions on travel and investment and yet the investment opportunity was offered through SGX.
States have imposed sanctions against Myanmar in response to its government’s violent suppression of pro-democracy movements, corruption and human rights violations.
Our legal memo was requested when SGX initiated regulatory actions against the developer of the Golden City complex, ETC, after Justice For Myanmar published an investigation into payments to the Myanmar army, implicating funds raised on the SGX.
At the time I was instructed to lead barrister Daye Gang by the Australian Centre for International Justice on behalf of Justice for Myanmar, ETC had already commissioned two independent reviews: one by Nexia TS Advisory into contractual payments and fundraising; and another by Kelvin Chia Partnership into the applicability of sanctions and compliance with “applicable laws”.
However, our legal memorandum found that these reviews may not have addressed a range of international law risks in light of the 2019 UN Independent International Fact-Finding Mission on Myanmar (FFMM) report into the Myanmar military’s economic interests and ongoing atrocity crimes. We also raised the necessary risk assessments for the proposed investment, including the likelihood of breach of sanctions by funds from the project reaching the military junta known as the Tatmadaw – a labelled terrorist organisation.
The memo, drafted in 2021 and running to some 50 pages, answered specific questions as follows:
(a) Under international law, do ETC’s 2018 and 2020 payments and future planned payments and asset transfers to the QMGO raise any concerns?
(b) Do ETC’s payments amount to the company being “involved in or connected with... illicit activities” as per Practice Note 2B of the SGX?
(c) Is there a legal risk for the SGX under international law if they continue to allow ETC’s listing?
(d) Any other relevant matter arising.
Our instructions were therefore broad and wide-ranging, but did not encompass advice on litigation. In seeking to encompass “any other relevant matter arising”, we considered any international law issues that may arise for SGX within the broader factual matrix, of which ETC’s 2018 and 2020 payments, future planned payments and asset transfers were only one part. The memo is therefore a broad overview of selected international law which we considered relevant to compliance issues.
We considered state and corporate responsibilities, modern slavery reporting, OECD guidelines, investment treaties, sanctions, bribery and corruption risks and a range of other Articles and Conventions, much of which appeared not to have been considered before the listing was sought. We found that although some remedies may be elusive, due diligence failures create risks which should be of concern to corporations, states and state organs. It is not just about rebuffing external pressures, but recognising that the consequential cost implications of being connected to Golden City may be unquantifiable in terms of both human and financial costs. We focussed on the identification of issues that would most assist further investigations, should they become necessary, as well as decision-making on investment risk.
Although some remedies may be elusive, due diligence failures create risks which should be of concern to corporations, states and state organs.
ETC suspended trading on 23 March 2022, asking SGX for an extension of time to find an offer and seek shareholders’ approval for the proposed divestment, specifically citing the memo, which found that international law and guidance places due diligence obligations on the Singapore Exchange (SGX) and possible liability on the Monetary Authority of Singapore and the Singapore government in relation to companies doing business with the Myanmar military.
The memo also found that Singapore has an international legal obligation “to investigate, prevent and cease transactions that amount to wrongful acts”, which is applicable to business transactions with the Myanmar military and its business interests. Legal remedies would be “easily pursued and enforced” against SGX if the Myanmar military’s financial organs are found to be in breach of international laws and/or compliance regulations including international human rights and humanitarian law.
Despite this, ETC’s latest annual report shows a “partial payment” of 2.33 billion kyat (S$1.68 million) to the Myanmar army in 2022. We acted pro bono for Justice for Myanmar, but this was more than an example of effective pressure on Singapore companies to cut ties with the Myanmar military and its associated businesses to undermine the regime’s political legitimacy. It demonstrates the legal minefield that requires expertise on international business and human rights compliance beyond consultancy at the early stages of every investment, including the international criminal law risks. Much of ‘The Big Short’ was taken up with the right time to sell. The law now requires significant reflection before buying in the first place.
Professor Felicity Gerry, Barrister
20 Old Bailey, London, EC4M 7AN, UK
Tel: +44 07956 853737
E: fgerrykc@libertaschambers.com
Professor Felicity Gerry KC is Global Law Experts International Criminal Law Barrister 2023. She is admitted at the International Criminal Court (ICC) and the Kosovo Specialist Chambers (KSC) in The Hague, to the Bar of England & Wales and the Victorian Bar, Australia. She has also had ad hoc admission in Hong Kong and Gibraltar. Felicity is a dedicated and experienced advocate who leads for the defence in serious, complex, and sensitive trials and appeals at every level of court. She specialises in terrorism, modern slavery, financial crime and war crimes (ICL) and has had several career-defining cases.
Finland has in place a Child Custody and Right of Access Act designed to find a solution that is in the best interest of each individual child when decisions are made on child custody, residence and right of access. The Child Maintenance Act stipulates that a child is entitled to be supported by the parents until he/she reaches the age of 18. Parents are responsible for their child's maintenance according to their resources, and under Finnish law, the parent who has access to the child is usually required to pay maintenance to contribute towards the child's living expenses.
One of the objectives of the Finnish Child Welfare Act, as amended in 2019, is to protect children from becoming unwitting victims of disputes between parents. In child care and custody proceedings, it is the parents who are the actual interested parties to the case, but the law includes provisions requiring that the opinion and wishes of the child be ascertained, usually in the form of a report prepared by the social services in response to a request from a district court.
Finnish law does not contain provisions on any mandatory agreement on the arrangement of a child’s circumstances in case of parental separation. After a divorce, the parents may make a spoken or written agreement on child care and custody, access rights, residence and maintenance. Alternatively, they may draw up a written agreement on these matters in consultation with the local child welfare officer, who is responsible for ensuring that the agreement is in the best interest of the child. An agreement prepared by the child welfare officer is legally enforceable, just like a court decision.
If the parents fail to reach an agreement on the child’s circumstances, the final decision will be made by a court of law. In Finland, the majority of parents are able to reach on agreement on child-related matters, but about 4-5% of cases concerning custody, rights of access and residence are taken to court. More than half of the care and custody disputes ending up in courts relate to demands to amend a previous agreement or court decision.
Court proceedings on child care and custody differ from the procedure applied in regular civil cases. Courts are duty-bound to look after a child’s future best interests, which imposes a number of special requirements on the legal process. Child care and custody proceedings are initiated in response to an application filed by one of the parties.
More than half of the care and custody disputes ending up in courts relate to demands to amend a previous agreement or court decision.
Alternatively, instead of going to court, child custody cases can also be addressed in court-administered mediation. In fact, mediation is the most significant procedural reform in Finland in hearing contentious child custody cases, based on an experiment carried out in courts in the 2010s. The process, also known as Follo mediation after its Norwegian origins, has become a popular and effective way of resolving disagreements between parents without exhausting litigation. After all, the system was specifically tailored to provide a better procedure for hearing child care and custody cases. Mediation aims at a lasting parental agreement that is in the best interest of the child.
Another benefit of mediation is that reconciliation between parents promotes the well-being of the child and ensures that the child maintains a relationship with both parents. Mediation may also improve parental relations and communication unlike litigation, which tends to foment conflict and distrust between parents and is never a sound and appropriate option for the family or the child and his or her future prospects.
Mediation can address parental disagreements concerning the child’s residence, rights of access and maintenance. Additionally, mediation can resolve a number of issues relating to the child's daily life that could not be dealt with in court. A case can also be referred to mediation in mid-proceedings. If so, the proceedings are adjourned to await the outcome of the mediation.
The mediator is a judge specialising in family law matters, assisted by a parenting and child development expert, usually a psychologist or social worker. The mediating judge is not the same judge who hears the custody dispute in court. The expert is involved in the process in order to ensure that mediation addresses all the key issues and that the final agreement is in the child’s best interest. In the past, such a multi-professional approach was rare in courts, but mediation has provided solid evidence that it helps judges and lawyers gain new insights into child development and welfare when working together with the experts participating in mediation.
One of the benefits of mediation for parents is that the judge and the expert adviser are able to pool their skills to help the parents arrive at a solution that is in the best interest of the child. To reach an agreement in the course of mediation, parents are asked questions that prompt them to consider circumstances that are central to the child’s best interests. The purpose of the questions is to encourage parents to find a solution that is best for their child in that particular situation.
Mediation is the most significant procedural reform in Finland in hearing contentious child custody cases, based on an experiment carried out in courts in the 2010s.
A key principle of mediation is that it is voluntary and is only initiated with the consent of both parties. They must genuinely want mediation and have the right to end it at any point without having to disclose any reason for it.
Mediation is informal and conversational, and parents can engage a legal adviser for support. The role of a lawyer in mediation is also completely different from that of a lawyer in court. The legal adviser serves as a participant in the mediation process and is also responsible for trying to maintain as amicable an atmosphere as possible between the parents and for negotiating with the client in order to contribute to reconciliation.
The outcomes of Follo mediation range from a comprehensive to partial agreement or failure. If the parties reach a comprehensive agreement, the court proceedings will be closed. Any pending legal proceedings will also be terminated. If the mediation is unsuccessful and the case is pending in court, the proceedings will be resumed to proceed from the point reached when mediation started. If the agreement is only partial, the court will only continue to address the parts of the agreement that remain in dispute.
A settlement reached in mediation is equivalent to a court decision or judgment. However, a court of law may not affirm a settlement if it is unlawful, manifestly unfair or would infringe upon the rights of a third party. Any affirmation of an agreement on child custody, rights of access and maintenance is also governed by the provisions of the Child Custody and Right of Access Act and the Child Maintenance Act. In other words, the agreement to be confirmed must be in the best interests of the child.
Compared to a court case, mediation is perceived to offer an additional advantage in that, instead of a district court judge, the decisions are made by the parents themselves who will also have to live with the settlement at which they arrive. Moreover, mediation allows the parties to take up matters that are important to them, even if they are not relevant from a legal point of view. As a process, mediation is flexible and allows the parents to express their emotions.
Compared to a court case, mediation is perceived to offer an additional advantage in that, instead of a district court judge, the decisions are made by the parents themselves
A further advantage offered by mediation is that it is forward-looking and focuses on the common interests of the parents, whereas in court proceedings past events are submitted as evidence and the objective is to prove that the other party’s position is ill-founded. In process terms, mediation is much quicker than court proceedings because, if possible, the mediation session is held within six weeks of the date when the decision to start mediation is made.
It is quite common to rely on a legal adviser in mediation because most child custody disputes are referred to mediation while court proceedings are in progress, which means that the parents have already engaged a legal adviser. Parental separation can be complex and emotionally draining, but even in difficult disputes, a settlement or partial settlement can be reached, making it easier to deal with the case in court later on.
The legal adviser’s role is crucial in mediation, as he or she is called upon to help the parties reach an amicable solution. Legal advisers also play a major role as to whether the case ends up in mediation in the first place, as they are called upon to assess the suitability of the case for mediation, recommend mediation to their clients at an early stage as well as to inform them about the benefits and possibilities offered by mediation.
Legal advisers are to support the client in the mediation process and help reduce the stress and uncertainty experienced by them. The legal adviser explains to the client what is happening in mediation, what the various potential solutions are and what they mean, and what the client can realistically expect. At the same time, he or she is required to intervene if a parent behaves inappropriately and reassure them if necessary.
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A legal adviser is often better qualified than the client to identify the client's interests, because the conflict can affect the client’s ability to comprehend the situation and see further into the future. If the client's wishes conflict with the best interests of the child, the legal adviser can help the client understand the child’s specific interests in the given situation, even if it means that the client needs to compromise. The legal adviser's role is to work with the parent to explore options and make constructive suggestions to find a lasting solution.
Anne Liakka, Founder
Erottajankatu 15–17, 00130 Helsinki, Finland
Tel: +358 92516 6310
Anne Liakka is partner and founder at Liakka Oy Attorneys-at-Law, a law firm specialising in family and estate law in the heart of Helsinki. Founded by Anne at the beginning of 2022, the firm offers clients a wide range of services in all aspects of family law. Instead of litigation, the team encourages and aids clients in finding amicable and lasting resolutions. The firm also offers family and estate law services with international implications.
In this article we hear from Charles Allen, partner at RPC and head of the firm’s Hong Kong office, as he expands on these trends and the concerns that face the city and its judiciary post-COVID. What can we expect to see from this jurisdiction in 2024 and beyond?
This year finally saw an end to COVID-19 restrictions in Hong Kong and a total reopening of the city as a major hub for international business. Hong Kong remains a popular choice for commercial parties to resolve their Asian disputes due to its robust common law judicial system and well-respected and independent judiciary.
The shockwaves from COVID-19, supply chain disruptions and the resulting global economic downturn can be seen in the number of new business disputes we have seen, along with an uptick in the number of debt and insolvency claims coming our way in 2023. Consequently, our disputes practice has remained busy despite the global economic downturn.
Similarly, the shift towards remote working, spurred on by the pandemic, has led our contentious employment practice to see an increase in cross-border disputes stemming from employees working abroad whilst under Hong Kong contracts of employment.
Cybersecurity remains another key area of concern for clients in Hong Kong. With a marked 50% increase in technology-related crime in Hong Kong in the first half of this year, we continue to see commercial litigation in this area. We have received instructions during 2023 in relation to cybersecurity breaches, recovery of crypto-assets and cyber-fraud. Crypto-asset recovery actions have been assisted by the Hong Kong Courts' recognition of cryptocurrencies as property in the recent landmark case of Re Gatecoin Limited [2023] HKCFI 914.
Cybersecurity remains another key area of concern for clients in Hong Kong.
We expect crypto litigation to remain prevalent in Hong Kong, particularly as the city cautiously reopens itself to retail investment in cryptocurrencies through its brand-new regulatory scheme for virtual asset trading platforms overseen by the Securities and Futures Commission.
International arbitration has remained a highly popular dispute resolution tool in Hong Kong this year, as I cover in more detail below.
A large proportion of the new commercial disputes instructions we have received have been to act as counsel in arbitrations. It is clear, in fact, that there has been an increase in the number of arbitrations, continuing the general trend in Hong Kong in which international arbitration is seen as the preferred method of resolving commercial disputes.
The increased flexibility and confidentiality that international arbitration offers makes it a popular option for commercial parties, and the Hong Kong International Arbitration Centre (HKIAC) remains one of the leading global arbitral institutions, receiving its highest number of filings in over a decade in 2022.
We continue to see truly pan-Asian and global disputes seated in Hong Kong under HKIAC and other rules, but with the benefit of various agreements with Mainland China, Hong Kong is particularly popular for disputes with a Mainland element. For example, this year parties to Hong Kong arbitrations have made regular use of the 2019 Hong Kong-Mainland China arrangement on interim measures, continuing the trend of last year in which parties sought to preserve $1.1 billion of assets or evidence in the Mainland in the HKIAC alone.
The extent of the continued growth of arbitration in Hong Kong, as well as in the breadth of the RPC's commercial disputes practice, is evidenced by our engagement as counsel this year on arbitrations spanning a wide variety of industries, including the construction, insurance and financial services industries. In my personal capacity, I have also received an increased number of arbitral appointments this year. New matters include disputes concerning COVID-era PPE supply contracts and cryptocurrency.
The increase in arbitration may have led to a slight decrease in the number of commercial cases going through the courts in Hong Kong, although we continue to be busy in that arena too, especially in the professional indemnity space. On the other hand, we have seen a slight reduction in the number of enquiries relating to regulatory and competition disputes.
The increased flexibility and confidentiality that international arbitration offers makes it a popular option for commercial parties
Key advice currently is to be patient when bringing claims in the Hong Kong courts. The courts have a very significant workload currently, meaning there are long waiting lists. For example, we recently had a case set down for a 11-day trial midway through 2025.
Notwithstanding the current burden on the judiciary, the quality of judicial decision-making in Hong Kong remains consistently high, and our courts remain an attractive venue for Asian disputes, particularly those involving Mainland Chinese parties. I would therefore encourage parties not to be deterred by the current backlog of cases from choosing the Hong Kong Courts as a venue for commercial disputes.
That said, parties requiring tighter control of timelines should consider including Hong Kong arbitration clauses in their commercial contracts. As I highlighted above, Hong Kong remains a global leader in this field.
An arrangement that will significantly improve the ease of enforcement of Hong Kong judgments in Mainland China (and vice versa) is set to come into force shortly. The Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance is slated to come into force this year, and is intended to more closely integrate the enforcement regimes across the two jurisdictions. Amongst other things, enforcement will no longer require an exclusive jurisdiction clause in favour of mainland courts, and non-contractual civil judgments and criminal proceedings containing an order for the payment of money can now be enforced in Mainland China.
The Ordinance will also expand the scope of types of decision and the number of designated courts whose decisions can be enforced on the Mainland. This increased enforceability aims to make the Hong Kong courts an even more desirable and effective option, as parties will have a route to recoup damages and costs if they are successful in a claim against a Mainland party.
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The heavy workload of senior members of the judiciary has recently attracted a lot of attention. In our view, the judiciary could benefit from a major recruitment drive, especially for the High Court bench. One possibility would be to have a closer look at senior solicitor advocates for potential appointment. They could either be appointed directly to the High Court bench, or judges from the District Court – a number of whom already sit as deputy High Court judges – could be permanently promoted, with their positions being backfilled by solicitor advocates interested in a judicial career.
In terms of procedure, the Hong Kong courts are currently in the process of improving their technological capabilities. Court e-filing began a staged roll-out in May 2022, although it is currently only available in personal injury and tax actions before the District Court. But this roll-out is set to be extended to other causes of action and courts. This should help to modernise the Hong Kong Court system in light of post-pandemic ways of working.
Charles Allen, Partner
3504-06, 35/F One Taikoo Place, 979 King's Road, Quarry Bay, Hong Kong
Tel: +1 852 2216 7167
Charles Allen is the head of RPC's Hong Kong office and leads its commercial disputes practice. Partner, solicitor advocate and dispute resolution lawyer, Charles leverages his 25+ years of experience of practice in the jurisdiction to advise clients on a wide range of commercial disputes across the Asia Pacific Region in court and arbitration proceedings. Charles also sits as an arbitrator in commercial matters and regularly sits as Chairman in the Solicitors Disciplinary Tribunal.
RPC is a full-service international law firm widely acclaimed as a disputes powerhouse. It is sought after by clients to act on a broad variety of disputes, including some of the most complex and high value on the market. Named Law Firm of the Year three times since 2014, RPC represents industry-leading clients in insurance, retail, media, tech, professional services and numerous other fields.
Here, Diana Grosz, head of Legal and Corporate at TMF Israel, looks at what these changes mean for companies setting up and operating in Israel, and how they are already providing a dramatic efficiency boost in dealings with the government body – as well as simplifying compliance.
27 June 2022 was an important date for the Israeli business community. This was the day Israel’s legislature, the Knesset, passed laws mandating electronic communication between government departments and Israeli businesses. One particular piece of legislation, Amendment 35 to the Israeli Companies Law 5759-1999, saw the introduction of mandatory paperless communication between the Israeli Registrar of Companies (IRoC) – part of the Ministry of Justice – and all companies formed after the enactment date.
This move to paperless communication is just one of the initiatives which Israel’s government has taken to maintain, and build on, the country’s reputation as the ‘Start-Up Nation’.
Israel is already one of the world’s least complex countries to do business in, ranking 63rd out of 78 in TMF Group’s newly-published 2023 Global Business Complexity Index. This has contributed to the country’s ability to attract new market entrants and investment – especially in its tech sector. According to World Bank statistics, Israel’s net inflow of foreign direct investment (FDI) in 2022 was $27.76 billion, placing the country among the top 20 host countries for FDI.
Israel is known for its highly skilled workforce, advanced technological environment, entrepreneurial culture, robust technological infrastructure and innovation-driven economy. Over recent years, the country has been home to the world’s highest number of start-ups per capita, and is host to more than 350 R&D centres belonging to multinational corporations.
Israel is already one of the world’s least complex countries to do business in, ranking 63rd out of 78 in TMF Group’s newly-published 2023 Global Business Complexity Index.
The wider changes to digital communication between Israeli government bodies and the public are intended to accelerate the provision of digital services by public bodies and streamline and improve services to the public, In addition to providing Israeli businesses and residents with a faster and more efficient service, it is estimated that the move to digital communication will directly save the state around NIS 820 million per year.
There is also the positive environmental impact of a dramatic reduction in the quantity of letters and forms being printed and delivered – estimated to provide annual savings of around 30,000 trees and 18,634 tons of greenhouse gas emissions.
The changes to Israel’s Companies Law included a number of amendments, including the establishment of a digital default for the submission of incorporation applications, company notices and liquidation requests to the IRoC.
All companies incorporated after 27 June 2023 must have a digital address – an email address or mobile phone number to be used for communication between the registrar and the company. In fact, two digital addresses are needed: an email address, which will be visible to the public, and a second email address or mobile phone number, for use by the registrar only.
Once registered, this digital address is used by the registrar for all mailings to the company. There is a ‘presumption of delivery’, which means these electronic mailings are treated as if they were sent by regular mail to the registered office of the company. Companies are obliged to inform IRoC of any changes to the digital name or address within 14 days of the change.
Applications for company registration, company notices and liquidation requests must now be submitted online. The registrar may allow the submission of a paper application, but only under special circumstances.
Companies incorporated before 27 June 2022 can opt not to communicate digitally with the IRoC, for an interim period of two years (until June 2024). During this period, public bodies like the IRoC can only use digital communications to send warning messages to a company that has opted out. This might be an urgent message regarding an imminent threat to the health or safety of a person or cause serious damage to a property. Once the interim period has ended, all public bodies will be allowed to send mailings to companies digitally.
Applications for company registration, company notices and liquidation requests must now be submitted online.
In November 2022 the IRoC introduced an online-only enquiry service. This ticketing-based service enables businesses to submit written enquiries through an online portal. Once set up, there is no personal identification required each time an enquiry is submitted. Documents can be attached as needed, and a contact number is provided for further inquiry and follow-up.
The paperless system implemented by the IRoC has dramatically accelerated the process of registering with, reporting to and communicating with the governmental body. It has provided a real efficiency boost, especially for overseas businesses wanting to set up and operate in Israel.
For example, the need to complete, print and get multiple wet ink certified signatures on company registration documentation has been removed. Where previously companies would typically have to wait weeks to get their Israeli entity registered, the process can now be completed in a few days. Enquiries that could take weeks to be dealt with are now often handled within a matter of hours through the online system.
However, there are some particular requirements placed on overseas entities registering a branch or subsidiary in Israel.
In order to submit notices online for foreign entities registered with the IRoC (branches), the company representative needs to be registered on the governmental portal and appointed as Power of Attorney (PoA) Holder for the branch in question. Subsidiaries need to appoint an Official Notifier to perform the same role. These notices cover various changes, such as: directors, registered address, shareholders, share capital, etc., which must be submitted to the IRoC within 14 days of the change.
Since the PoA Holder or Official Notifier still needs to be an Israeli resident, many overseas companies are still opting to appoint local outsourced providers to provide company secretarial and legal compliance services and act as their official notifiers.
Foreign documentation used in support of registration – such as passports, foreign certificates of incorporation, overseas registrars' company excerpts and certificates of good standing – must still be apostilled and provided to the official notifier in the original. Thereafter, certified copies can be submitted online.
The paperless system implemented by the IRoC has dramatically accelerated the process of registering with, reporting to and communicating with the governmental body.
Branches which already have an ‘Attorney-in-Fact’ registered with the IRoC or private companies who appointed an Israeli director can opt to use this person to submit notices to the IRoC. Even if this is the case, many companies choose to use local outsourced service providers to assist with the process and ensure they remain compliant with the changing rules.
Physical submissions, though currently still possible, are taking longer to process, as the IRoC is directing most of its resources to online submissions. This heightens the already considerable risk of not meeting filing and notification obligations on time, or in an orderly way.
Overall, there are considerable efficiency and compliance benefits for moving to paperless communications with the IRoC, even if the legal obligation is not there. Those unsure about making the transition would do well to seek out professional third-party expertise to help smooth the process and ensure compliance with changing regulations.
Diana Grosz, Head of Legal and Corporate
Rival St 7, Tel Aviv-Yafo, 67778, Israel
Tel: +972 3-687-0701
Diana Grosz is a licensed attorney in Israel with over 10 years of experience working in law firms and multinationals in the corporate field. In her current position as Head of Legal and Corporate in TMF Israel, she manages the GEM department and oversees corporate governance and compliance of TMF Group's clients in Israel. In addition, she is the Practice Lead for GEM in the MEA region, utilising her background and knowledge to ensure that global entity management clients are and remain compliant in the wider market.
TMF Group is an international provider of administrative services. Its 9,100 experts provide legal, financial and employee administration through the Group’s 120 offices worldwide.
In this article we hear from Masaki Morishima, a veteran patent attorney and partner at Saegusa & Partners, who offers an in-depth analysis of Japan’s patent prosecution landscape, looking in particular at biotech and the sciences.
The process of patent prosecution in Japan can be initiated by filing a national application directly with the Japan Patent Office (JPO), or by entering the Japanese phase of a PCT application. For either route, a request for examination must be filed in order for an examiner at the JPO to examine the patentability of the application.
Since this request can be filed at any time within three years from the date when the patent application was filed, the examination proceedings can be delayed, if necessary, by filing the request as late as possible. Such an approach is useful for biotech start-ups and the like, especially when they want to buy time to make critical decisions during patent prosecution (e.g. how to amend the claims), as it may take some time for them to finalise the details of their product or service.
Such a ‘wait-and-see’ approach can also be accomplished by filing a divisional application (a child), as the same scope as that of the earlier application (a parent) can basically be pursued by a divisional application. Issues regarding the case of a double patenting situation between the parent and child can be cleared up later by making amendments to either or both of the claim sets in order to avoid overlap. There is no restriction on the number of generations of a divisional application; for example, based on a child application, a further divisional application (a grandchild) can be filed, and so on.
Coming back to the process of patent prosecution after filing a request for examination, if an examiner determines that the patent application is not allowable, an office action (OA) is issued. This provides the applicant an opportunity to file a response – amendments to claims etc., if any, in addition to counter-arguments. If the examiner maintains the previously notified rejection even in view of the applicant’s response, a rejection decision is issued.
An applicant can file an appeal against the rejection decision if they would like an appeal board (made up of three appeal examiners, who are more experienced than normal examiners) to review the case. The appeal board’s decision is appealable to the Japan IP High Court. Additionally, when filing an appeal, the applicant should consider whether to file a divisional application as a fall-back measure.
The key rationale underpinning patent prosecution in Japan is, according to the JPO, “early establishment of strong and stable patent rights.” In order to accomplish this, the JPO has accelerated the speed of examination, while providing multiple measures for revocation for third parties. After grant, any party can file an opposition within six months, and an interested party can file nullity proceedings at any time. The JPO seems to expect that these revocation challenges, especially oppositions – which must be initiated at a very early stage after grant – will help to improve the quality of patents as a whole, as bad-quality patents would be revoked shortly after their grant.
The key rationale underpinning patent prosecution in Japan is, according to the JPO, “early establishment of strong and stable patent rights.”
However, we tend to think that the current situation somewhat differs from the JPO’s expectation. Specifically, the grant rate at the JPO is currently around 75%, which is relatively high when compared to the numbers in other major jurisdictions, such as the USPTO, EPO, etc. We do not know whether this is an unwanted by-product of the examination acceleration that the JPO has achieved in this decade. At the very least, the JPO appears to expect that the opposition system newly introduced in 2015 would help improve the quality of patents. However, in reality, the opposition rate has been extremely low; only seven patents out of 1,000 granted patents were opposed in 2021. Therefore, we believe that the current patent scene in Japan is quite patentee-friendly; namely, a patent can be easily obtained, and with high speed.
According to the latest official statistics, patent pendency (namely, the period from the date of examination request until a final deposition, including a grant of a patent) was 15.2 months on average in 2022. This is already the shortest period among major jurisdiction, such as the USPTO, EPO, etc., but the period can be accelerated even further by various official requests. Namely, requests for an accelerated examination, a super-accelerated examination, and entry into the Patent Prosecution Highway (PPH) program are available, as long as certain requirements are met.
Under an accelerated examination, the first action pendency (the period from the date of the examination request until the JPO sends the first OA) is around 2.3 months (for a normal examination: 10.1 months), and this can be further accelerated under a super-accelerated examination. Most patent applications filed by applicants based outside Japan are likely to meet the requirements for both types of accelerated examination.
Even if the grant rate at the JPO is extremely high, there are some caveats. For example, although the JPO takes a relatively generous approach on added matter in the case of amendments, they tend to be relatively strict regarding the support requirement – namely, in regards to what extent an applicant is allowed to generalise, in a claim, the technical evidence given in the specification as filed. Such evidence is typically in the form of experimental data, and such generalisation is significant in the field of biotech.
The grant rate at the JPO is currently around 75%, which is relatively high when compared to the numbers in other major jurisdictions
In view of this, we believe that if sufficient technical evidence is included in the specification as filed, there is a good chance of obtaining a reasonable scope in Japan, especially when taking into account the JPO’s generous approach regarding amendments. This is because such sufficient technical evidence allows a broader scope, whereas a ‘cosmetic’ amendment that only carves out the prior art or non-working embodiments, etc. may be possible under the JPO’s generous approach on amendments, even if there appears to be no clear basis in the specification as filed from the non-Japan-based practitioner’s point of view.
A dedicated patent attorney can act as a mediator who helps streamline communication between the examiner and the applicant, explaining the examiner’s messages to the applicant so that they can understand the examiner from the point of view of practitioners in their country or region, as well as explaining the applicant’s messages to the examiner so that the examiner can understand the applicant from the Japanese practitioner’s point of view. Obviously, this requires a deep understanding of not only Japanese practice but also the local practice of the applicant’s country or region, enabling dedicated attorneys to understand the mindset of both sides.
It has become more and more common for us to be asked to take over cases under examination from other patent firms, probably in order to increase the chances of success regarding cases that appear to be stuck. In those cases, we often find that the previous firm’s responses to the examiner’s grounds of rejection do not seem to directly address the examiner’s comments, but rather stick to their own theories.
What we learned from this is that it is essential to address the exact reasons why the examiner thinks that the claimed subject matter is not patentable. While doing so may be easier for applicants for cases before their local patent office because of a deeper understanding of local practice as well as the local language, the same should also go for Japanese cases – with the help of a good Japanese patent attorney.
Firstly, in order to reduce costs as much as possible, applicants should consider applying for a fee discount, which can be applied to fees for requesting examination as well as patent right registration (for the first 10 years). If a biotech start-up satisfies the discount requirements, a maximum of two-thirds of the above fees will be discounted.
Secondly, given that both the grant rate and the examination speed is high at the JPO, applicants should consider filing and prosecuting in Japan first, and then using the granted Japanese patent as a basis for examination under the PPH in other countries – particularly other Asian countries, where the JPO has a strong influence – in order to obtain geographically broader protection.
Thirdly, if a biotech start-up is balancing whether to file a patent application (inevitably leading to disclosure of their invention) or to keep it as secret knowledge (in consideration of the risk of allowing competitors to imitate it), very careful consideration in this regard is necessary. This is because it is generally believed to be difficult to effectively argue prior user rights before the court.
It is essential to address the exact reasons why the examiner thinks that the claimed subject matter is not patentable.
Specifically, in theory, even if a prior user is sued by somebody for patent infringement, the prior user may be entitled to continue the disputed business by arguing their prior user rights, if they had already initiated or had been preparing to initiate that business before the filing date of the patent in suit. However, the hurdle to do so is relatively high. In view of the fact that the grant rate is relatively high, a prior user may rather want to file their own patent in order to cover their business.
There have been great developments in three areas: namely, a technical effect in the context of inventive step, support requirement, and inherent disclosure.
The guidance on how to evaluate technical effect in the context of an inventive step has been developed in recent years before Japanese courts, including the Supreme Court of Japan, and I believe that now we have a clearer view of it. While this guidance should be welcomed, it also means that some patents granted under the old standard may be revoked under the current standard. Thus, careful review is necessary to evaluate those patents.
The same is true regarding how to decide whether a support requirement is met, and we recommend including as many fall-back positions as possible in the specification in order to carve out non-supported subject matter by way of amendment in the event that the JPO makes a negative decision in this regard, as it is likely that the JPO will apply a somewhat stricter approach regarding the support requirement than the approaches applied by other patent offices.
Lastly, an inherent disclosure is a situation wherein, for example, the technical feature in a claim in question is not explicitly disclosed in a prior art document, but is necessarily possessed by a material disclosed therein. Such a situation frequently occurs in the field of biotech. In the case of a product claim, our proposed solution for the above problem is reformulating it into a use-limited product claim wherein a use having a link with the disputed technical feature is stated. The reason for this is that the JPO and the courts tend to acknowledge the novelty of the subject matter claimed therein as long as prior art documents are silent about such a use, which is likely the case.
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The above strategy is possible in Japan, as a stated use in a product claim directed to a non-medical subject matter also has a limiting effect, unlike the EPO’s medical use claim practice.
Some biotech patents are based on cutting-edge technologies, and we often encounter situations in which an examiner does not seem to correctly understand the technology underpinning the patent application under examination. However, less-experienced patent attorneys will tend to blindly accept what an examiner argues before thoroughly analysing the argument.
Thus, our advice for these attorneys is that in order to be more effective, they should trust in the power of invention, and should rather start with the mindset that the invention must be something patentable, as the aim is to get a patent granted. From our experience, even in cases where getting a patent grant appeared to be hopeless, we could usually find a way through in the end. Therefore, an approach with the above mindset is more effective than one that starts from doubting the patentability of the invention.
Masaki Morishima, Partner
Kitahama Konishi Building, 7-1, Dosho-machi 1-chome, Chuo-ku, Osaka-shi, Osaka 541-0045, Japan
Tel: +81 6 6203 0941
Fax: +81 6 6222 1068
E: m-morishima@saegusa-pat.co.jp
Masaki Morishima is a patent attorney and head of the International Client Department at Saegusa & Partners, with more than a decade of experience in patent prosecution. He is also co-head of the firm’s Chemical and Biotech Department, responsible for overseeing the work of almost a dozen attorneys and staff. His own practice involves working with large multinational corporations filing patents and launching products in Japan, drawing upon his wealth of experience in drafting and prosecuting patent applications.
Saegusa & Partners is one of Japan’s leading patent firms. Founded in 1946 and headquartered in Osaka, Saegusa & Partners boasts a team of experts whose practices cover organic and inorganic chemistry, biotechnology, pharmaceuticals, foods, cosmetics, machinery and electronics. The firm is especially proficient in patent law matters relating to the field of chemistry and biotech, and each of its past presidents has been a patent attorney with expertise in chemistry.
In Hungary, a foreign investor can get business residence on the same terms as anyone else if they can provide evidence that they own a Hungarian company offering goods or services or they are investing at least €155,000 in real estate. Additionally, once the company is set up, they receive a low 9% corporate tax rate on profits.
You should also know that, as an applicant, your family members are also eligible for residence during the same period. Residence permits may be renewed, but it is advised to spend a couple of months in Schengen countries out of the last six months before you apply to renew your residence permit.
This information often brings up a lot of questions for those interested in the process. For this reason, we spoke with Dr Csaba Magyar, TEP, LLM, who is a managing partner of Crystal Worldwide Law Firm (Hungary), which has more than 30 years of experience in the corporate, tax planning and immigration fields. His insights will help you on your way to Schengen immigration through investment.
The Hungarian ‘Residency by Investment’ program allows investors to obtain a three-year or five-year resident permit in Hungary. Because Hungary is one of the 27 countries in the Schengen Area, having a residency permit for Hungary gives the permit holder freedom of movement throughout all Schengen countries. This means you can easily travel between these countries without much hassle. However, it also means you need to understand the process and what the tax implications are for you.
There are two main options for taking advantage of the Hungarian residence permit by investment.
For reference, according to the latest data from the Hungarian Central Statistical Office, the average price for new homes in the country is about €145,000.
In practice, you would start by either establishing your company in Hungary or buying real estate (spending at least €155,000). From there, you can apply for and get a residence permit for three or five years. The application for the residence permit is fairly simple and can be started at the Hungarian consulate of your country of residence.
Because Hungary is one of the 27 countries in the Schengen Area, having a residency permit for Hungary gives the permit holder freedom of movement throughout all Schengen countries.
After the individual investor has their residence permit, family members can apply for their own permits. When the residence permit is set to expire in three or five years, you renew the permit. Keep in mind that, to renew the permit, you must spend at least 90 of the most recent 183 days in the Schengen Area. Basically, this means you need to spend two or six months (but non-consecutively) in the area to apply for the renewal of the residence permit.
The scheme gives foreign investors the ability to easily invest in real estate or a business in Hungary. It also gives them access to travel throughout the entire Schengen area.
On top of that, business owners get to take advantage of Hungary’s 9% corporate tax rate on profits. This is the lowest corporate tax rate on profits you will find in the European Union. This is part of what makes having a business in Hungary so attractive, especially to outside investors.
The biggest benefit of residing in the Schengen Area is the freedom to travel between the 27 countries. There is no passport or border control between the countries and your Hungarian residency gives you the freedom to enter any other Schengen Area country from a country outside the zone.
The biggest pitfalls are failing to meet deadlines, not making a large enough investment, or not ensuring you meet all of the requirements for opening a business or making a real estate investment. You also have to make sure you meet the requirement to spend 90 days in the Schengen Area before renewing the permit. Those looking to see several locations while travelling love this condition.
Starting a business in Hungary lets you obtain residency in the country, which is part of the Schengen Area. As such, you can travel to any other Schengen Area country without any problems. In fact, you will not even need a passport.
You also get to take advantage of the lowest corporate tax rate on profits in the European Union of just 9%. Hungary also has tax treaties with 80+ countries, so you are unlikely to deal with double taxation. This makes the option attractive to a host of different types of investors.
Additionally, the area is full of quality real estate that is perfect for investing in. This is another aspect that makes immigration by investment attractive to many people.
Business owners get to take advantage of Hungary’s 9% corporate tax rate on profits. This is the lowest corporate tax rate on profits you will find in the European Union.
Retaining a competent lawyer will ensure that the entire process goes smoothly. When questions pop up, you will have someone at ready to answer them correctly. You will stay on top of deadlines and file all paperwork correctly. This can be difficult, especially if you have not done this before.
Competent immigration and tax lawyers will use their decades of experience to guide the process for you. They will help ensure you don’t miss deadlines and that you know what fees must be paid. They will also help you understand what documents are necessary for the process. They will help you with administrative tasks and other tasks like opening a bank account.
Moreover, these lawyers will help ensure you are doing what is necessary with your taxes and paying what you need to in a timely fashion, so you do not run into issues. If you are purchasing real estate, they will help protect you here as well. From making sure you are buying something legally to getting it properly insured, an immigration and tax lawyer helps you make sure you are on the right side of the law, regardless of what country you are in.
In addition to their knowledge of the legal and administrative process, your immigration and tax lawyer can also help you overcome language barriers. If you are not fluent in Hungarian, their assistance will be crucial. They will also help make sure you have a translator anytime they cannot be present and they may even help you get language tutors if needed. Not letting language hinder you is a big part of the process of attaining immigration by investing in the Schengen area.
Tax and immigration lawyers can even help you find real estate investments that not only give you residency but are also smart investments. Some will even offer services such as serviced offices for your business. Other services you might see offered may include tax services, filing paperwork, assessing the legal end of your business and providing contacts for other goods or services needed.
In addition to their knowledge of the legal and administrative process, your immigration and tax lawyer can also help you overcome language barriers.
We hope this gives you a better understanding of what the process of immigration by investment looks like for those looking to come to the Schengen area. With the freedom to move freely around the 27 countries forming this area attracting more and more investors, there is little doubt the population of the area will continue to grow and businesses will continue to thrive.
The right services will provide you with financial, tax and legal guidance from a place of experience. They will competently help you get the right piece of real estate for your needs. During the process, your lawyer will represent your best interests and aid you with administrative work. They will provide accounting and corporate services where needed as well as banking aid.
Finally, you will have attention to detail, assistance with language barriers and the same contact person helping you with your needs. These reasons and many others make it important to get an experienced lawyer to help you with your journey to Schengen Immigration by investment. This is not a process you want to do a lot of guesswork, and you want to make sure to get the process right from the start to save time and money.
Dr Csaba Magyar, Managing Partner
Tel: +36 1 383 0333
Dr Csaba Magyar is Managing Partner at Crystal Worldwide Law Firm. His practice specialises in international wealth and tax planning, including handling complex transactions and managing cross-border taxation and investment issues successfully for both corporate and individual needs. Dr Csaba Magyar provides client-focused fiduciary solutions and immigration by investment services for HNWIs.
Crystal Worldwide Group is is an international business consulting firm specialising in tax planning, asset protection and second citizenship. During our more than 25 years in operation, the firm has offered its clients professionally sound and lawful solutions for tax savings and asset protection, together with fast and timely services provided at the highest level of discretion.
In this feature, criminal lawyer Licia Dal Pozzo draws upon her experience in handling cybercrime cases to outline the threat cybercrime poses to Italy and the EU as a whole.
To begin with, what are the key Italian laws and statutes concerning cybercrime?
First of all, I point at the Criminal Code, which since 2008 has provided for and punished cybercrimes in the strict sense. These include cyber fraud, abusive access to a computerised or telematic system, damage to data and software, dissemination of viruses and malware, and other crimes that can also occur as cybercrime, such as extortion, identity theft, money laundering, misuse of payment cards, solicitation of minors, revenge porn, and cyberstalking. Equally relevant are special laws that punish additional crimes that can also be committed through the Internet, including intellectual property infringement.
In relation to the prosecution of cybercrime, relevant laws include L.L. 48/2008, which ratified the 2001 Council of Europe Cybercrime Convention, known as the Budapest Convention, and the law on the establishment of the European Investigation Order, which established international cooperation in the investigative field. Specific mention should be made of Decree Law 82/2021, which established the National Cybersecurity Agency, aimed at combating cybercrimes that harm national interests.
The relevant European regulations are many, and among them, I highlight Directive 2013/40/EU of the European Parliament and of the Council on attacks against information systems; the Digital Operational Resilience Act, which become effective as of 16 January 2023, in order to create a common framework for financial sector oversight; and Council Decision 2023/436 of February 14, 2023, authorising member states to ratify the Second Additional Protocol to the Convention on Cybercrime regarding enhanced cooperation and disclosure of electronic evidence to improve global cooperation among investigative forces and implement investigative tools.
What is the scale of the threat that cybercrime poses to Italian organisations?
Today, cybercrime is mainly carried out by organised crime and foreign states, no longer just by individual offenders.
The report ‘Intellectual property crime threat assessment 2022’ by EUIPO and Europol is interesting: it estimated that counterfeit and pirated goods worth €119 billion were imported into the EU in 2019, accounting for 5.8% of EU imports. It also estimated that over the period 2013-2017, lost sales due to counterfeiting amounted to more than €83 billion per year. This corresponds to estimated losses of €15 billion in tax revenue and 171,000 jobs in total. Intellectual property crimes cause damage to the reputations of legal producers while harming fair production and distorting market competition. In addition, intellectual property crimes reduce funds available for public research and innovation.
Today, cybercrime is mainly carried out by organised crime and foreign states, no longer just by individual offenders.
In your experience, what forms of cybercrime are most typically the subject of criminal charges?
They are electronic payment instrument scams, computer system hacking, sensitive data appropriation, and extortion or attempted extortion if the ransom is not paid.
In what ways does the prosecution of a cybercrime differ from other criminal cases?
The difference may be found in the complexity of computer evidence, as it has typical characteristics that distinguish it from other sources of evidence. These characteristics include:
In conclusion, one may understand that identifying the perpetrators of criminal acts is particularly arduous.
What changes have you observed in the climate of criminal law and cybercrime during your time in practice?
The technological development required by cybercrime punishment changed the process; today, cyber data has become the centre of it.
In its latest Annual Report, covering 2021 activities, Eurojust devotes a chapter to the fight against cybercrime in which it highlights how online criminal activities have increased in frequency, numbers and aggressiveness, and that Eurojust's main activities of intervention have been ransomware, artificial intelligence, cryptography and cybercrime as a service. The number of victims recorded on a daily basis is high.
Do you have any projections for how cybercrime and laws surrounding it may change in years to come?
They say that artificial intelligence will be able to facilitate investigations by increasing the level of technological expertise needed and the ability to process cyber data. Change on the regulatory level must be rapid in order to catch up with the rapid development of cybercrime. In addition, action should also be taken on prevention that can be implemented by both companies and police, in terms of both human and technological resources.
What would your first piece of advice be for a firm that believes it has become, or is in danger of becoming, the victim of a ransomware attack?
Do not give in to the temptation to offer a ransom, because there is no guarantee of the restoration of systems and the return of stolen data. Instead, immediately seek the intervention of the Judicial Authority by filing a timely complaint with the help of a legal counsel. Any omitted report increases the vulnerability of the system, so reporting is not only in one’s own interest but contributes to the collective good.
In perspective, it is advisable to adopt appropriate prevention systems that control the chain of suppliers, especially the smaller and more vulnerable ones, and to increase investment in digital security to acquire highly specialised labour resources and effective IT alerting systems.
Do you have any further comments that you would like to add regarding cybercrime in your jurisdiction?
I will end with a mention of hybrid warfare, which is not only relevant to my jurisdiction but also to it. The term first appeared in 2006 in reference to the war in Lebanon. The technique progressed, for example with ISIS, and today it is recurring. The cyberattack strategy is one of the offensive means and represents the most damaging and broadest level of conduct that falls under cybercrime. The effects are highly damaging and effective for the attacker, but the tools of defence are not ready yet.
For example, in Italy, spear-phishing campaigns against local media and various organisations operating mostly in the IT, energy, finance and refugee assistance sectors were recorded in late 2022, according to a 2023 Microsoft report on techniques and tactics adopted by Russia against Ukraine and NATO countries.
International law is stuck with a classical notion of war, meant in the kinetic sense, which excludes any cyberattacks from the area of prohibition of the use of violence. First of all, it is necessary to develop amendments to the law, and it is also relevant that not only every state, but also both large and small companies, implement effective systems of resistance and resilience towards this type of aggression, which is increasingly frequent and very dangerous.
Licia Dal Pozzo, Founder
Studio Legale Dal Pozzo
Viale Abruzzi, 7 - 20131 Milano MI, Italy
Tel: +39 02 2941 1289
Fax: +39 02 2040 2080
E: info@studiodalpozzo.net
Licia Dal Pozzo is an advocate based in Milan, Italy. Her speciality is in criminal law, with experience in handling a range of subject matters including cybercrime, IP enforcement, tax crimes and corporate crimes.
