Mishcon de Reya
27 Experts
14 Contributions by Mishcon de Reya Experts
PRACTICE NOTES
Introduction
Copyright is an IP right that grants an individual the exclusive control over how their original work is copied, disseminated or otherwise dealt with by third parties. The principal statute regulating and setting out copyright in China is the Copyright Law of the People’s Republic of China (the “Copyright Law”), first officially enacted in 1990 and subsequently formally revised in 2001, 2010 and 2020.
What is copyright?
Copyright is an IP entitlement that safeguards a person’s exclusive right to reproduce, publish, distribute or sell their original creation. It protects the expression of an idea rather than the idea itself. For copyright to subsist lawfully, a work must be original and capable of reproduction. Broadly speaking, the categories of works that qualify for protection in Europe will similarly qualify in China. Creative outputs, including books, music, sound recordings, plays, films, paintings, sculptures and
IP
PRACTICE NOTES
This Practice Note considers cybersecurity in international arbitration.
An introduction to cybercrime and cybersecurity in international arbitration
A single arbitration may draw in many actors from varied jurisdictions—parties, funders and insurers, arbitrators, counsel, experts, witnesses, the administering arbitral institution or another organising body, plus external service providers—collectively, the ‘Participants’. Within the process, they exchange material that is not publicly available. Unauthorised access could cause commercial harm, sway share prices, reshape corporate strategies or even government policy. The result of a case can reverberate through financial markets; obtaining a draft award before it is issued to the parties could be highly profitable for cyber criminals. Accordingly, the arbitral process is a target for cyber attacks, especially where hackers can locate a weak link in the chain of custody.
Because arbitration’s speed and practicality rely on digital
Arbitration
PRACTICE NOTES
A business might need to secure extra capital for a variety of purposes. It could, for example, be to finance a planned acquisition or to satisfy continuing financial commitments. There are several routes by which a company can obtain the extra funding required, including tapping existing shareholders through a rights issue, an open offer or a placing.
When running a rights issue, open offer or placing, the company must carefully assess the effect on any current employee share plans it operates. This assessment should take place as early as possible in the decision-making process to determine whether, and if so what, steps can be taken so that employees are not put at an unfair disadvantage by a rights issue, open offer or placing. This Practice Note outlines the key points that typically arise in connection with employee share plans on a rights issue, open offer or
Share Incentives
PRACTICE NOTES
The Financial Services Enforcement Database
The Financial Services Enforcement Database contains comprehensive details of every substantive FCA and PRA Final Notice and, when published, Decision Notices dating back to 2014. Users can search and refine the database by rule contravention, keywords, sector, date, gravity, aggravating and mitigating considerations, monetary sanction, and related measures including referrals to the Upper Tribunal. Under the Financial Services and Markets Act 2000, the FCA and PRA hold a range of powers to gather information for supervision and enforcement. This Practice Note outlines the FCA’s information-gathering powers and the limits placed on disclosing and using material obtained. They include powers in FSMA 2000, ss 165–169, allowing the regulators to compel firms to supply data and reports, appoint investigators, and cooperate with overseas regulators. The PRA also benefits from an extra
Financial Services
PRACTICE NOTES
The Financial Services Enforcement Database
The Financial Services Enforcement Database houses comprehensive details of all substantive FCA and PRA Final Notices and, where obtainable, Decision Notices, from 2014 onwards. Users can interrogate the Database using searches and filters for rule breaches, keywords, sector, date, seriousness, aggravating and mitigating features, financial penalties, as well as other actions, for example referrals to the Upper Tribunal.
This Practice Note addresses disclosure questions that may emerge during investigations conducted by the Financial Conduct Authority (FCA) or the Prudential Regulation Authority (PRA). It explains in detail the framework for sharing both confidential information and privileged and protected material, and the approach to disclosure to third parties such as overseas regulators and would‑be litigants. It outlines regulators’ duties to provide materials gathered during an inquiry to the subject under investigation and to those holding third party rights, in each case. It also
Financial Services
PRACTICE NOTES
The Financial Services Enforcement Database
The Financial Services Enforcement Database brings together comprehensive details on substantive Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) Final Notices and, where obtainable, Decision Notices, covering 2014 onwards. The Database can be searched and refined by fields including rule/legislation breach, keyword, sector, date, financial penalty, facets of financial penalty analysis, outcomes such as redress and prohibition orders, and further actions like referrals to the Upper Tribunal. This Practice Note sets out the law and process for making a reference to the Upper Tribunal (Tax and Chancery Chamber) following a disciplinary or non-disciplinary decision of the FCA or the PRA; including decisions on restrictions, financial penalties and prohibition orders under the Financial Services and Markets Act 2000 (FSMA 2000), and the FCA’s registration of cryptoasset firms under the Money Laundering, Terrorist Financing and Transfer of Funds
Financial Services
PRACTICE NOTES
Lexis+® UK Financial Services FCA/PRA Enforcement Database:
Brings together comprehensive details of all substantive FCA and PRA Final Notices and, where obtainable, Decision Notices from 2014 onwards. The Database, available here, can be queried and refined by rule contravention, keyword, sector, date, severity, aggravating and mitigating factors, financial penalties, and further outcomes such as referrals to the Upper Tribunal. This Practice Note reviews applications to the Upper Tribunal (Tax and Chancery Chamber) under Rules 5, 10, 14 and 37 of the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698. In particular, it covers bids to suspend the effect of a regulator’s decision, and applications concerning privacy, extensions of time and costs, with pertinent case law. For guidance on the law and procedure for making a reference to the Upper Tribunal following a disciplinary or non-disciplinary decision of the FCA or the PRA, see
Financial Services
PRACTICE NOTES
Introduction
Safeguarding a trade mark in China enables a business to build a brand and reputation within the world’s second largest economy. This supports customer growth and helps ensure no one else uses their name to sell goods or services without permission. China operates a ‘first-to-file’ system, meaning the earliest filer is entitled to register the mark, so timing is critical. In practice, legal protection can be lost if an identical or similar trade mark has already been entered on China’s register before your filing. Consequently, it is crucial to register a trade mark in China at the first available moment. Chinese law does provide bases to oppose an application or to invalidate a registered trade mark where appropriate. Nevertheless, filing first is generally the least costly and most effective way to secure a mark and avoid disputes. Challenging earlier filings later can be
IP
PRACTICE NOTES
Introduction
An initial public offering (IPO) is a company’s first sale of shares to the public. For more on what an IPO entails, see: IPO—Main market—overview. A business heading towards an IPO must assess the effect on any employee share arrangements it runs. This analysis should begin at the earliest planning stage, as the IPO structure may need to reflect share plan considerations. An IPO also creates a chance to launch new share schemes—often extending participation to all staff for the first time—and it is usually best for those arrangements to be established before the company’s shares are officially admitted to trading. Organisations may likewise wish to make awards or run an employee offer at the point of listing. Doing so demands advance preparation, with suitable disclosures built into the prospectus. This Practice Note outlines the key points that typically arise on employee
Share Incentives
PRACTICE NOTES
What is a phantom award?
In essence, phantom awards fall into two main types: phantom share awards and phantom options.
Phantom share awards
A phantom share award gives the holder a right to a cash sum mirroring the value of an actual share. These arrangements are also known as ‘shadow shares’, ‘synthetic shares’, or ‘equity appreciation units’; for simplicity, this note calls them ‘phantoms’ and ‘phantom share awards’.
Phantom options
A phantom option typically entitles the holder to the increase in the value of a real share above a notional exercise or base price.
Practical example
BigCo Limited is a rapidly expanding private UK company seeking to launch an incentive plan that allows all employees to participate and share in any future growth of the business. Its investor base, however, is reluctant to issue actual shares to employees, as that would dilute the current investor
Share Incentives
PRACTICE NOTES
What is an LLC and how is it different to other forms of business organisation?
A limited liability company (LLC) is a legal form of business organisation in the US. It is essentially a hybrid structure, blending characteristics of a corporation and a partnership together. Comparable to a UK private limited company, it grants owners limited liability protection, whilst, subject to elections made by the entity, it may potentially be treated as fiscally transparent for tax, much like a partnership.
Where an LLC is regarded as, or elects to be, tax transparent, all profits and losses flow directly to its owners—who are members rather than shareholders—and tax is therefore charged on the members instead of the entity itself.
Nonetheless, despite the potentially advantageous tax position of LLCs, the treatment of LLC members for tax across different jurisdictions is not always simple in practice. By way of
Share Incentives
PRECEDENTS
This Deed is made on [ insert date ].
Parties
[ Insert name of company ] with company number [ insert company number ], whose registered office is at [ insert address ] (the Company).
[ Insert name of participant ] of [ insert address ] (the Participant).
Background and interpretation
The Company has set up the [ insert name of plan ] (the Plan).
The Participant is an Eligible Employee, and the Company intends to grant an Award to the Participant under the Plan.
Expressions defined in the rules of the Plan (the Rules) (but not defined in this Deed) carry the same meanings in this agreement unless the context dictates otherwise.
This agreement is executed as a Deed. This agreement is SUPPLEMENTAL to the Rules. If there is any ambiguity or
Share Incentives
PRECEDENTS
This Agreement is entered into on [ insert date of agreement ] between the following parties:
[ insert name of company ] (registered number [ insert registered number of company ]), with its registered office at [ insert registered address of company ] (the Company); and
[ insert name of shareholder ] of [ insert address of shareholder ] (the Shareholder).
Background
(A) The Shareholder is the registered holder of [ insert number of shares ] [ insert class of shares ] in the Company.
(B) The Company [ operates OR intends to operate ] the [ Insert the name of the employee share plan that the Company operates ] (the Plan), under which rights to acquire certain shares in the Company's capital [ have been granted OR will be granted ] by the Company.
(C) The Company has asked the
Share Incentives
PRECEDENTS
1 Introduction
This disclaimer relates to [ insert event or activity ] (the Event) organised by [ insert name of company ] (we or us). [ By [ attending OR participating in ] the Event, you accept and agree to this disclaimer (as outlined below). ]
2 [ Attending OR Participating in ] the Event IMPORTANT—PLEASE READ
2.1 By [ attending OR participating in ] the Event, you confirm that you:
2.1.1 will adhere to the Event rules, including:
[ insert any specific rules or policies that apply in respect of the Event ];
2.1.2 will follow all notices, warnings or directions that are displayed or communicated to you by our staff...
Commercial
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