Legal Business

Sponsored briefing: Technical expertise in intellectual property litigation in Portugal

Sponsored briefing: Technical expertise in intellectual property litigation in Portugal

António Magalhães Cardoso and Marta Alves Vieira discuss technical expertise in IP litigation matters

Complex intellectual property (IP) litigation matters often require specialised knowledge that the assigned judges and the parties’ counsels generally do not possess.

The facts and the matters at stake in many IP litigation cases – particularly, in patent, utility model or design cases – frequently require experts to participate in the proceedings actively with their specific technical knowledge.

Legal Business

Sponsored briefing: Closing a project finance transaction in Mozambique during a worldwide pandemic

Sponsored briefing: Closing a project finance transaction in Mozambique during a worldwide pandemic

The world shut down in 2020, but the largest project finance in Africa could not stop.

The discovery of vast quantities of natural gas off the coast of northern Mozambique in 2010 was the starting point for the Mozambique LNG Project, which led to a $20bn final investment decision in June 2019. In September of that same year, Total (the second-largest LNG player in the world) announced that it had closed the acquisition of Anadarko’s 26.5% operating interest in the Mozambique LNG Project and that the project was finally ready to move on to the next stage.

Legal Business

Sponsored Briefing: Keep it simple

Sponsored Briefing: Keep it simple

Many of us were caught in the making of transactions when the Covid-19 outbreak started or, at least, hit Europe causing a complete shutdown in many countries or started them while confined at home experiencing the sudden and unexpected demise of the economy.

While assessing the business impacts of the pandemic in ongoing transactions and those initiated while navigating new unchartered waters, lawyers, vendors and purchasers started pondering the legal impacts of this ‘new normal’ on transactions agreements and how risk-sharing provisions would operate in this context and its aftermath. Following the 2008 financial crisis, lawyers submerged on discussions on how provisions in their legal systems would operate, namely on supervening change of circumstances affecting contracts, and if the lessons then learned, carved in jurisprudence and scholars’ extensive essays, would apply to transactions generated prior or in the midst of the pandemic. The same amount of time and consideration was dedicated to the discussion on how effective (more or less) standardised risk-sharing provisions would operate in transactions preceding this Covid-19 crisis but not yet completed and how such provisions should play out in acquisitions signed and concluded while we still are besieged by the virus. Provisions on representations and warranties, interim management periods, material adverse change, force majeure, hardship and others were (are) again revisited.

Legal Business

Sponsored briefing: The pandemic and Portuguese capital markets

Sponsored briefing: The pandemic and Portuguese capital markets

In 2019, our article in Legal Business ended as follows: ‘Therefore, with the benefits of a renewed legal and regulatory framework and of an environment where low interest rates facilitate access to funding, 2020 is likely to follow in line with the current year, promising continued intense activity and diversity’. In January 2020, VdA organised an international conference on sustainable finance, where we discussed the growing relevance of ESG factors with key players.

However, unpredictably, by March 2020 it was clear that our prediction of ‘continued intense activity and diversity’ was beginning to make little or no sense, as the Covid-19 pandemic reached Portugal (and the world). By the end of March, an unprecedented legal moratoria regime was enacted and subsequently extended until the end of September 2021. Very dark clouds were on the horizon for those looking for funding or refinancing, and on top of the legal moratoria regime, force majeure and material adverse change clauses became hot topics of discussion.

Legal Business

Sponsored briefing: Portuguese Market Update – Sustainable Financing

Sponsored briefing: Portuguese Market Update – Sustainable Financing

The Paris Climate Agreement, signed in Paris on 12 December 2015, strengthened the call to action among the financial community by setting a new long-term goal on finance: ‘making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development’. Portugal ratified the Paris Agreement in 2016 and has since taken the first steps towards what will hopefully be a robust and appealing green financing market, which has recently shown a more consistent path.

The development of Portugal’s green financing market has been mainly led by banks and big listed companies with sustainability strategies, seeking to obtain or allocate funding while pushing forward with the decarbonisation of the Portuguese economy.

In the corporate sector, EDP – Energias de Portugal has prepared its MTN Debt Programme for the issuance of green bonds, the proceeds of which are being directed to financing or refinancing portfolios of wind and solar energy generation facilities, thus overcoming the first-mover fear that was holding back the Portuguese market.

Earlier this year, mortgage lender Unión de Créditos Inmobiliários, Establecimiento Financiero de Crédito – Sucursal em Portugal entered the universe of European green securitisations by privately placing its inaugural RMBS Green Belém No. 1, a deal having Tagus STC (a Portuguese securitisation vehicle) as issuer and backed by Portuguese residential mortgages originated by UCI Portugal. This was the first ‘green’ RMBS securitisation in the Iberian Peninsula, with UCI Portugal committing to use the proceeds from this deal to fund earmarked green building initiatives and sustainable finance projects in Portugal and Spain. This was also the first securitisation to be labelled ‘STS’ (simple, transparent and standardised) under the Securitisation Regulation in Portugal and the first to be successfully completed within the difficult context of the Covid-19 pandemic, just as states of emergency were being declared in various countries around the world, including Portugal.

Following clear and documented policies for climate action and environmental sustainability, as well as a renewed ambition to establish a trend for investments in this domain, the European Investment Bank subscribed part of the senior class of the issuance. This marked the return of supranational institutions to the Portuguese RMBS market, which will hopefully send a clear message to other potential investors as to the robustness and health of this market.

Sustainalytics, an independent global provider of ESG and corporate governance research and ratings, played a crucial role in both issuances by confirming that each was in compliance with the Green Bonds Principles, a set of voluntary process guidelines established by the International Capital Market Association recommending transparency and disclosures and promoting integrity in the development of the Green Bond market.

Euronext Lisbon – the Portuguese stock exchange and member of the Euronext platform – also launched in 2020 a new suite of ESG-focused products, services and initiatives, designed to provide a robust framework of tools for European capital markets to fuel sustainable growth. Euronext Green Bonds offerings (which included the RMBS Green Belém No.1) saw a 70% increase in the number of issuers since launch and led to Euronext expanding its offering to other ESG-related bonds, including blue, social, sustainability and sustainability-linked bonds.

More recently, a reflection group on sustainable financing was created, being composed of the main players in the Portuguese financial sector and coordinated by the Ministry of Environment and Energy Transition, in cooperation with the Ministry of Finance and the Ministry of Economy. This group launched two important documents ‘Guidelines for Accelerating Sustainable Financing in Portugal’ and ‘Letter of Commitment for Sustainable Financing in Portugal’, which establish guidelines and commitments with respect to sustainable financing, such as the commitment to developing a fiscal policy in favour of sustainability and the signatories’ commitment to promoting training in sustainable financing aimed at their employees at different levels of the organisation (including board level).

September 2020 saw the incorporation of a national green development bank. Banco Português de Fomento springs from the will to streamline the action of financial institutions in support of the economy, by maximising the efficiency of their action and promoting their strategic co-ordination while simultaneously aiming to provide financial capacity and accelerate the various existing sources of financing dedicated to investing in sustainable, carbon neutral and circular economy projects.

2020 has seen the Portuguese financial sector embracing ESG and is on the path to increasing the supply of financial products that promote decarbonisation, while also bringing awareness to sustainability policies and projects among Portuguese SMEs

 

For more information, please contact:

Benedita Aires
Partner, Banking & Finance
bla@vda.pt

 

Sebastião Nogueira
Senior Associate, Banking & Finance
san@vda.pt

 

VdA
T: (+351) 213 113 400
Rua Dom Luís I, 28
1200 151 – Lisboa

www.vda.pt

Legal Business

Sponsored briefing: IP litigation in Portugal – from the ’00s to the ’20s

Sponsored briefing: IP litigation in Portugal –  from the ’00s to the ’20s

António Magalhães Cardoso and Sara Nazaré discuss IP Court challenges

Going back to the 2000s, disputes arising from the enforcement of industrial property rights were to be tried before the Court of Commerce, which also handled matters relating to bankruptcy, and many other issues involving commercial companies’ legal disputes and issues. The Court of Commerce was completely overloaded with the work that the latter involved and all the cases involving industrial property rights, especially patents, in light of their complexity, were completely clogged. The situation was so critical that preliminary injunctions were being filed against the actual infringement of patent rights and the Court of Commerce was taking more than two years to serve the defendants.

Legal Business

Sponsored briefing: 2019: diversity and new rules for Portuguese corporate issuers in debt capital markets

Sponsored briefing: 2019: diversity and new rules for Portuguese corporate issuers in debt capital markets

Diversity. This is a fair word to describe Portuguese debt capital markets in 2019. We have seen a bit of everything this year: new issuers, including Transportes Aéreos Portugueses, Sociedade Independente de Comunicação and Casais, SGPS, and from the public sector, the Autonomous Region of the Azores, frequent issuers, including Sport Lisboa e Benfica – Futebol SAD, Mota-Engil, José de Mello Saúde and Galp, and from new structures, including the combination of subscription and exchange offers to retail and institutional investors, and the segregation of books by types of investors (retail vs eligible counterparties and professional clients in retail offerings), and even a new prospectus regulation. Lastly, at the top of the list, new investors and alternative funding sources for Portuguese issuers. This is good news in a year that, on the regulatory front, turned a page with the enactment of the new EU Prospectus Regulation and related delegated regulations.

As from 21 July 2019, new rules were required to be followed in the preparation of the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market. New rules were also adopted in respect of related advertisements.

Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 (New Prospectus Regulation), although maintaining the essential structure inherited from its predecessor, introduced new requirements aimed at simplifying an issuer’s access to capital markets, notably frequent issuers or issues by small and medium-sized companies, and ensuring that the information contained in a prospectus is as useful as possible for its readers (potential investors).

Critical chapters of the prospectus, such as the summary and the section on risk factors, have also been affected. The summary was reduced and reshaped to be modelled as much as possible on the key information document, with the goal of making it shorter, simpler and easier for investors to understand. To achieve this goal, the language used in the summary should be plain and non-technical, presenting the relevant information in an easily accessible way. Following this route, summaries will become a more useful source of information for investors (notably retail investors), focused on providing key information that helps investors take more accurate investment decisions.

Rules regarding risk factors have also been amended and detailed. The main purpose of disclosing risk factors in a prospectus is to ensure that investors are aware of the major potential risks relating to the issuer and the securities, and that they make investment decisions based on their knowledge of these risks. In order to avoid long generic descriptions of risks that often serve only as disclaimers, the New Prospectus Regulation and related ESMA Guidelines require that the risk factors be limited to those which are material and specific to the issuer and the securities being offered or admitted to trading. The relevant risks are now required to be described adequately, organised by categories, and those considered most critical by the issuer should be presented first. The main reason for organising the description of risk factors according to these new rules is to present the information contained in a prospectus in an easily analysable, concise and comprehensible form. Whereas the above does not appear to constitute a great challenge for issuers, the need to assess (and eventually quantify) the impact of each risk on the issuer seems to be harder to address, notably because the information available may not be sufficiently reliable to be included in a formal document such as a prospectus. The New Prospectus Regulation and related ESMA Guidelines admit the use of a qualitative scale of low, medium or high, and precedents so far have shown that issuers tend to prefer this alternative.

Also of importance are the new rules in respect of advertisements, particularly the relevant required content. The word ‘advertisement’ is now required to be prominently included in any advertisements disseminated to potential retail investors, and legal disclaimers are required to include statements and recommendations to investors highlighting the need to read and consider the prospectus carefully before investing, rather than simply relying on the approval of a prospectus as a sign of endorsement of the securities being offered or admitted to trading. So far, these new rules have proven to be susceptible to being followed, although in some cases, notably television and radio advertisements or advertisements of more limited dimensions, the new rules have had an impact on the advertisement and its purpose.

The available experience shows that the changes introduced by the New Prospectus Regulation have been successfully handled by issuers and that complying with these new rules has neither discouraged the use of capital markets, nor affected timelines for the approval of a prospectus, notably in Portugal, where this responsibility falls on the Portuguese Securities Market Commission (Comissão do Mercado de Valores Mobiliários), as was the case in the first new prospectus-compliant public offering targeting the retail market – the combination of subscription and exchange notes issue launched by Mota-Engil in October. Therefore, with the benefits of a renewed legal and regulatory framework and of an environment where low interest rates facilitate access to funding, 2020 is likely to follow in line with the current year, promising continued intense activity and diversity.

For more information, please contact:

Pedro Cassiano Santos (pictured, left)

Partner and head of the banking and finance practice

E: pcs@vda.pt

Hugo Moredo Santos (pictured, centre)

Banking and finance partner

T: +351 21 311 3366

E: hms@vda.pt

Benedita Aires (pictured, right)

Banking and finance partner

E: bla@vda.pt

VdA

Rua Dom Luís I, 28

1200-151 Lisbon

Portugal

www.vda.pt