Greece focus: Lap of the gods

Greece remains buoyant, despite the global pressures affecting jurisdictions worldwide. Major transnational corporations and huge global players are beginning to adjust their investment strategies and are viewing Greece as a major opportunity for inbound investment. Panagiotis Drakopoulos, managing partner of Drakopoulos Law, remarks: ‘It has been somewhat surprising that a lot of foreign investors (particularly non-EU) see Greece as a gateway not only to just the region, but to Europe itself.’

The country is strategically located geographically, economically, and politically, and is highly attractive to growing numbers of investors that view Greece as a potential hub for their operations. Drakopoulos attributes the shift in part to political factors, noting that ‘the current political climate is very friendly to foreign investment; Greece is in a growth mode.’ Elected in 2019, the Mitsotakis government is self-proclaimed to be avowedly pro-investment and has passed key investment legislation. Continue reading “Greece focus: Lap of the gods”

Sponsored briefing: M&A in the Dominican Republic

Alburquerque discusses the creation of new M&A structures in the Dominican Republic

Upon overcoming the 2020 pandemic period, the Dominican Republic has experienced a significant increased activity in the creation of new M&A structures. These operations have been mainly motivated in growth seeking, as means of the businesses to diversify their activities; or in the search of resources, to speed up the post-covid recovery; and lastly to look for new ways of investment by shareholders seeking to change or expand their strategies.

Legal scenery

In the Dominican Republic, the processes for mergers and acquisitions are mainly regulated by the Commercial Societies Law No. 479-08 of 11 December 2008, modified by Law 31-11 of 9 February 2011. Law 479-08 establishes the possibility to transfer the patrimony of one or more company into a pre-existing company or within the creation of a new special purpose vehicle.

Other than defining the process, there are no specific provisions regulating, prohibiting, or restricting mergers and acquisitions in the Dominican Republic. Nevertheless, it is relevant to consider specific sectors and industries where special laws establish a previous authorisation or communication to be provided before the regulated authority, and define, either directly or indirectly, the management process thereto. Among them, we find the following regulations:

  • General Electricity Law No. 125-01, empowers the Superintendent of Electricity to authorise mergers and acquisitions for electric companies.
  • General Telecommunications Law No. 153-98, requires telecommunication providers, the authorisation of the INDOTEL for the transfers, use or ownership of the concessions and licenses granted for operation.
  • Financial Monetary Law No. 183-02, demands the prior authorisation of the Monetary Board for mergers, absorption, and excision of financial entities.
  • Insurance and Surety Law No. 146-02, requires companies to apply for authorisations, prior to any transfer or acquisition of shares, as well as for mergers before the Superintendence of Insurances.
  • Securities Law No. 19-00 and its modification by Law No. 249-17, where the National Council of the stock market must know and approve any process related to merger or change of control over the participants of the securities market. Concerning the investment funds, the Superintendency of Securities must approve the process.

Regardless of the industry or sector, in every M&A transaction, it is also recommended to consider Law 42-08 of Competition, which contemplates the basis of every transaction that must be executed within the terms of fair competition. This law, however, does not prevent companies from entering a process of reorganisation or acquisition.

On the other hand, it is mandatory to move forward under the magnifying glass of the recently approved and in force Law No. 155-17 against money laundering and financing of terrorism, which prohibits cash payment for probably every transaction that include the transfer of goods, and also demands the stakeholders involved in an M&A process, lawyers included, the proper execution of a due diligence.

Tax neutrality

As a result of this dynamism of transactions, the Dominican tax administration has recently provided General Norm No. 1 of 4 January 2022, related to reorganisation of companies. This legislative piece comes to complement the Dominican tax code, the Law of Companies and the decree No. 408-10 related to business reorganisation. In particular, the object of this law seeks to establish the conditions for the application of fiscal neutrality at the procedures of reorganisation of commercial societies, including the request of approval before the tax administration, the taxes to be exempted, the transfer of assets, and the criteria to be fulfilled to be considered a neutral operation, as well as the post-operation effects.

Of such relevance have become the M&A transactions in the country, that the norm also considers for the first time the establishment of special particularities to accept transnational business reorganisations considering the fiscal neutrality, in the case of assets and liabilities if the foreign company has a legally created permanent establishment in the country. Nevertheless, the transactions or reorganisation processes between companies, national or foreign, related to change of ownership, shall not be considered as neutral operations.

Due diligence

The performance of an adequate due diligence process is always recommended, before executing any transaction related to any merger or acquisition process. In our firm’s experience, some of the most relevant areas of analysis via a process of due diligence should include:

  • Corporate status of the companies involved. Including, not only the bylaws and fulfillment of formalities by the involved parties, but also a review of any shareholders agreement that may consider any restriction or a specific procedure for this type of operations.
  • Financial and tax situation of the companies and the assets involved.
  • Operational and contract relations, including their obligations and possible impact on the transaction (including licences or concessions).
  • Environmental issues, risks or contingencies, variable according to the type of business and transaction.
  • Ownership of real estate property and moveable assets, as well as their status, liens or encumbrances, warranties.
  • Litigation and conflict solution procedures, open or imminent.
  • Licenses, permits, concessions.

For these activities, it is necessary to count on local expert advisors, from legal to tax to special matters consultant in some cases, to secure a successful transaction and long-term tranquility on a post-operation business.

M&A perspectives

Despite the current panorama does not reveal major deals M&A transactions in the last couple of years, there has been a great dynamism in the country concerning M&A projects for medium-sized and big multinational companies, including mostly the execution of transactions to absorb or acquire shares and assets from locally established companies, and to expand activities in the country and the region.

The direct foreign investment during the last period of April 2021-September 2022 reflects a sustained increase in areas of energy tourism, industrial, mining, real estate and free zones according to our central bank statistics department. This dynamic reflects the implementation of M&A strategies and structures to make the investment a reality. As witnesses and part of transactions of this nature, we assure there is certainty and legal security for this type of operations to continue.

Authors


Jose Manuel Alburquerque Prieto
Managing Partner


Gina A. Hernandez Volquez
Corporate Business Partner

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Sponsored briefing: Navigating Romania’s dynamic energy landscape: an overview of M&A activity and trends

Lawyers from Suciu Popa (SPA) provide an overview of the energy M&A market in Romania

Market overview

Romania’s energy sectors have experienced significant growth and transformation in recent years, driven by a combination of technological advancements, policy changes, and geopolitical factors.

This dynamic landscape has given rise to numerous M&A transactions, with both domestic and international players eager to participate in the country’s burgeoning energy market. As a leading Romanian law firm, Suciu Popa has been at the forefront of these developments, providing expert legal advice and assistance in a part of such high-profile deals.

According to the most recent public data, the total value of M&A transactions in Romania in 2022 reached a record high of €5.5bn, despite a slowdown in activity during the latter part of the year. The energy, oil and gas, and renewables sectors were among the most active, accounting for a substantial portion of the market value.

Key deals

In the oil and gas sector, the most significant deal was the acquisition of ExxonMobil’s 50% stake in the Neptun Deep offshore gas project by SNGN ROMGAZ SA. This deal, worth approximately $1bn, is expected to significantly increase Romania’s domestic gas production and reduce its reliance on gas imports. Suciu Popa provided legal assistance to SNGN ROMGAZ SA in this transaction, advising on various aspects of the deal, including regulatory and environmental issues.

In the renewables sector, one of the most significant deals was the acquisition of by Rezolv Energy of a 1,000 MW solar park in Arad from Monsson Group. The project is planned to be the largest of this kind in Europe. It is emphasised that construction works will begin by June 2023, and the photovoltaic park will start producing in 2025 when it is planned to cover the energy needs of some 1 million people.

In addition to these primary deals, several other noteworthy M&A transactions occurred in Romania’s energy sector in 2022. These include Mass Global Energy’s acquisition of the Mintia thermal power plant and acquisitions made by Enel Green Power and Premier Energy in the renewables sector. Furthermore, Enel, a major player in Romania’s energy sector, recently agreed to sell its Romanian operations to PPC. The agreement entails the sale of Enel Group’s equity stakes in Romania to PPC for a total consideration of around €1,260m.

These deals demonstrate the increasing interest of investors in Romania’s energy sector, which is expected to grow significantly in the coming years.

Legislation and policy changes

The Romanian legislator introduced several significant legislative and policy changes in the energy and renewables sectors during 2022-2023, including:

  • The adoption of a new energy strategy for 2022-2030, aimed at increasing energy efficiency, reducing greenhouse gas emissions, and promoting renewable energy sources.
  • The implementation of the offshore law, which regulates the exploration and production of oil and gas resources in Romania’s exclusive economic zone in the Black Sea.
  • The introduction of a revised support scheme for renewable energy, providing more incentives for the development of solar and wind projects.

Geopolitical trends influencing the M&A sector

Several geopolitical trends have influenced the M&A sector in Romania in 2022 and are expected to continue shaping the landscape in 2023. These include:

  • European Green Deal: EU climate goals drive M&A activity towards renewable energy and sustainable technologies, making Romania’s wind, solar, and hydropower sectors attractive targets.
  • Supply chain resilience: global trade tensions and pandemic-related disruptions have increased interest in regional self-sufficiency, boosting M&A opportunities in Romania’s manufacturing and logistics industries.
  • Digitalisation and technology adoption: the growing tech sector and skilled IT talent in Romania make it an appealing market for investors pursuing innovative tech companies through M&A.
  • Energy diversification and security: given the ongoing geopolitical tensions surrounding energy supplies, particularly in the wake of the Russia-Ukraine crisis, European countries are seeking greater energy diversification and security. Romania’s domestic resources and its strategic location make it a potential energy hub, attracting M&A interest in the oil and gas sector, as well as investments in infrastructure projects.

These geopolitical trends will continue to shape the M&A sector in Romania in 2023, presenting opportunities for businesses and investors across various industries, particularly in the energy, technology, and manufacturing sectors.

Looking forward

It is challenging to forecast how the macroeconomic trends will unfold in 2023 however, we envisage that the importance of implementing an energy transition shall persist as a crucial agenda item for investors and management teams not just in the immediate future, but for a considerable duration thereafter. As a result, we anticipate that there shall be a notable deployment of capital towards M&A activity and other capital projects focused on Romania’s energy, renewables, and critical minerals sectors. Thus, it is an opportune time for interested parties to consider investment opportunities in these areas.

About us

At Suciu Popa, we have significant experience advising clients on M&A transactions in a variety of sectors with a focus on energy sector. Our team of lawyers has a deep understanding of the legal and regulatory framework governing the sector and can provide clients with the advice and support they need to navigate complex transactions. We have advised on several high-profile deals in the sector, including some of the ones highlighted above, and are well-positioned to help clients take advantage of the opportunities presented by Romania’s rapidly evolving energy landscape.

Authors


Miruna Suciu
Managing partner
E: [email protected]


Luminita Popa
Managing partner
E: [email protected]


Cleopatra Leahu
Partner
E: [email protected]


DAN Ciobanu
Partner
E: [email protected]

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Sponsored briefing: Evaluating sustainable investments in India: mitigating ESG risks through due diligence

Justin Bharucha and Vandana Pai examine how due diligence can be used to identify and address risks of non-compliance with ESG regulations

Investors the world over are increasingly structuring investments with lower environmental, social and governance (ESG) risks. One of the reasons for this is the growing regulatory scrutiny on ESG-related non-compliance. For instance, recently, the Securities and Exchange Commission fined BNY Mellon Investment Adviser for claiming that it had met all compliance requirements despite having failed to undertake an ESG quality review.

ESG is not an entirely new concept in India. There have been statutes on the books and bodies regulating ESG issues in India for decades – for instance, various environmental regulations, labour codes, corporate social responsibility (CSR) rules implemented in 20141 and quasi-judicial authorities like the National Green Tribunal.

Even the 2021 business responsibility and sustainability reporting (BRSR) issued by the Securities and Exchange Board of India (SEBI), India’s securities market regulator, is based on the principles set out in the National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business issued by the Ministry of Corporate Affairs (MCA) in 2011 (and updated in 2019), and has replaced the business responsibility report first introduced by the SEBI in 2012.

In the past, Indian regulators have taken enforcement action against companies for failing to comply with regulatory ESG requirements. For instance, the National Green Tribunal, by its order dated 10 September 2020, directed the Central Pollution Control Board to undertake an environmental audit of Amazon Retail India Private Ltd due to its excessive use of plastic as packaging material.

Similar scrutiny may also be expected from other Indian regulators in the coming years given India’s target of net zero greenhouse gas emissions by 2070.

ESG reporting metrics and scope of diligence

In India, ESG reporting is neither objective nor standardised. As of 1 April 2023, the SEBI’s BRSR requires the top 1,000 listed companies by market capitalisation to make ESG-related disclosures in their annual reports against nine principles, including accountability and transparency, provision of sustainable goods and services, and responsiveness to stakeholders. However, BRSR compliance is not mandated for unlisted entities or smaller listed companies, and there is no format for ESG reporting in India for such entities. The only guidance available is the BRSR lite version of the reporting format suggested by the MCA in the Report of the Committee on Business Responsibility Reporting, which recommended changes to the MCA’s National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business.

Given the above, diligence undertaken by the investors becomes a key measure to evaluate target companies’ ESG compliance and commitment. Akin to a legal due diligence, an ESG due diligence should be structured based on the sector in which the target is engaged, and involves the assessment of compliance and liability. For instance, a plastics manufacturer would be more susceptible to risks associated with waste management, as opposed to a target in the IT/ITES sector where risks pertaining to data protection norms may be more relevant. Additionally, the ESG due diligence may also take into account: (i) whether the target has a dedicated ESG policy; (ii) how the target chooses to respond to ESG-related risks; (iii) the target’s governance structure, including decision making at the board and shareholder levels; (iv) oversight models adopted by the target; (v) evaluation of the target’s supply chain, and, to the extent possible, whether the target’s suppliers are compliant with ESG requirements; and (vi) the energy sources used by the target.

Mitigating ESG risks and next steps

Fundamental ESG risks identified through due diligence must be addressed either through pre-closing conditions or conditions subsequent. ESG compliance is increasingly likely to be an extremely important issue that may impact whether a transaction will actually progress.

Investors may also consider including tailored representations and warranties in the transaction documents. These may include representations and warranties pertaining to compliance with regulatory disclosure requirements – including compliance by the target’s suppliers, maintaining adequate sectoral licences, and incorporating a defined metric to measure future ESG goals. To address the adverse impact of issues such as greenwashing and social-washing (essentially, artificially inflating ESG compliance or portraying a higher level of compliance), investors may consider building specific indemnities into the deal documentation. To that end, market practice has been to either negotiate to hold back a portion of the investment amount – which can then be set off against any losses arising from known ESG risks – or deferring that portion of the payment until ESG compliance requirements have been met.

Globally, insurance providers are coming up with assessment tools for ESG risks that can measure a target’s ESG performance in accordance with internationally recognised methodologies and provide a score based on 18 ESG themes. Essentially, these ESG scores allow underwriters to make decisions on whether there can be any incentives or dynamic pricing on insurance products, depending upon contingent events, for eg, installation of solar energy panels. Once these products and services – tailored to the nine principles under the BRSR and the MCA’s guidelines – are available in India, investors may opt for the same to measure the target’s ESG performance and manage risks2.

Post closing, investors may require the target to build and follow voluntary industry group standards and best practices, undergo voluntary social audits and assurance from time to time, and benchmark its ESG performance against its competitors.

Given the rise in ESG concerns and the lack of objective regulations, ESG-based due diligence has become an essential tool for investors to unlock value and protect themselves against potential risks. Targets that embrace regular ESG due diligence and take proactive initiatives are better positioned to build trust with their potential investors and adapt to the expectations of sustainability.

Authors


JUSTIN BHARUCHA
Managing partner
E: [email protected]


VANDANA PAI
Partner, head – investment funds practice
E: [email protected]

  1. India was the first country to legislate mandatory CSR requirements and compliance, and penalties for failure to comply. A company that fails to make the mandatory CSR contribution is liable to a penalty of twice the amount that was not contributed for CSR purposes, and its officers in default are liable to a penalty of one tenth of the CSR amount that was not contributed or INR 10m, whichever is lower.
  2. Although ESG ratings services are available in India, the ratings are usually restricted to entities whose securities are listed on a stock exchange as the ratings providers rely on publicly available information to evaluate these entities.

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Social media influencers: Winning friends and influencing people

Three years ago, as the outside world shut down, the legal profession faced an extraordinary challenge – staying connected to colleagues and clients with no in-person contact.

Lockdown saw a huge spike in social media use, and while personal use was a given for most lawyers, few had yet been convinced by its professional value, with most resisting the hype and leaving Twitter to their communications people. Continue reading “Social media influencers: Winning friends and influencing people”

Life During Law: Paul Dolman

I certainly didn’t have a burning desire to be a lawyer from the age of five years old. I definitely wasn’t one of those! I wanted to be an architect but you’ve got to be quite good at maths. I wasn’t.

My parents instilled in me a real work ethic from a young age and forced me to do lots of summer jobs where I learned the value of money. The worst one was probably working at Saxby’s pork pie factory. I was in charge of the jelly gun. Thousands of pork pies would come down a long conveyor belt and I had to put my gun in them and fill them with jelly. That was a challenging job to stay motivated in for sure. That probably put me off pork pies for life. Continue reading “Life During Law: Paul Dolman”

Global London: Resistance is futile – can firms keep the good times going as the market starts to cool?

It had to come. Among the Global London leaders interviewed in last year’s report, there was an inevitable consensus that the frothy post-Covid conditions that created a phenomenally successful 2021 would cool noticeably through 2022 and tougher times would lie ahead. However, while the predictions have been proven correct, the mood among the leading US firms in London is far from pessimistic.

Tamara Box, EMEA managing partner at Reed Smith, says of her own firm’s City office: ‘The mood is positive, not least following on from another strong year for the office in 2022. While we have seen a slowdown in transactional activity, there is still plenty to keep the litigators busy this year. Well-hedged firms are being kept busy advising clients on how to navigate the disruption caused by economic downturn, tremors in the financial markets and the Russia/Ukraine war.’ Continue reading “Global London: Resistance is futile – can firms keep the good times going as the market starts to cool?”

PE lessons: Shearman’s losses and Cravath’s gains show the value of City buyout teams – and the dangers of misfiring

City of London

While it may be an oversimplification to say that there has been a certain inevitability to Shearman & Sterling’s decline in recent months, that the firm’s losses should lead to Cravath, Swaine & Moore’s inaugural foray into English law is a coup even the most clued up of pundits could scarcely have foreseen.

Coming as they did from a venerable Wall Street institution which, while having had a London office for some five decades, has never ventured to hire a single English law practitioner, the hires of buyout partners Philip Stopford and Korey Fevzi from Shearman prompted a wave of speculation when they first hit the industry press in March. Continue reading “PE lessons: Shearman’s losses and Cravath’s gains show the value of City buyout teams – and the dangers of misfiring”

Sponsored briefing: Extraordinary times

Dominic Griffiths, Mayer Brown’s London managing partner, discusses bolstering the corporate practice and getting the cultural fit right

You have been London managing partner for a little over a year now. What have been your personal highlights?

Dominic Griffiths (DG): We have continued our growth trajectory over the last couple of years, in particular our revenue growth. It’s one of the fastest growing offices of Mayer Brown globally, which we’re very pleased with, of course. When I started in the role, I set out three important areas for development and one of them was high quality lateral hires. That was top of my list, and we have successfully continued that process. In the last 24 months, the London office has welcomed 11 lateral partners in key specialisations including banking and finance, private equity, investment funds and litigation and, during the course of 2022, we hired Peter Pears, a capital markets partner from Clifford Chance – he is one of the leading ESG advisers to the capital markets industry. We hired Neil Hamilton, a senior securitisation and regulatory partner, also from Clifford Chance. He is focused on providing bespoke regulatory support for our big structured finance roster of clients. We hired Matt Griffin from White & Case, the European head of its funds practice. He is an excellent, high-level, practitioner who adds to our broad scope of activity in fund formation and funds advice for our big corporate clients. We hired Airlie Goodman from Linklaters. I’ve worked with her personally, even though I’m a transactional lawyer, on a big litigation matter. She is an absolutely exceptional litigator. She fits very well in our elite litigation team. We also hired Ronan Mellon from DLA Piper. Ronan and I worked together many years ago at White & Case. It makes me feel a bit old because he was a junior lawyer then and he’s been a partner for ten years now. He has hit the ground running and he’s had some very successful transaction closings already. Last but not least, Paul Rosen from Katten Muchin Rosenman UK came over into our fast-growing private equity team.

How has the London office performed relative to your expectations?

DG: The last few months have been extraordinary times in the markets and we track those markets closely. Mayer Brown, in New York and London in particular, defines itself as being strong in financial services, with the majority of our partners and practitioners focused on this sector. It has been a very strange market. We saw a decrease in the amount of leverage being provided by banks from around September last year. We were looking very closely at credit funds because we have a lot of fantastic work with credit funds to pick up in that space, but, actually, the expectations of the market have not really been met with regard to the amount of leverage required for a really strong and active market. Notwithstanding all of that, we have a very good private equity and leveraged finance practice, which has remained strong and busy because there are more deals in that market. We’re very well hedged in relation to a market like this. We’ve got an extremely strong restructuring team, which is beginning to get really very busy over the last two or three months and we’ve also got a very large litigation group.

What are your ambitions over the next few years? Is there an area you feel needs to be invested in?

DG: My predominant focus is corporate M&A and private equity. Alongside that, there are a number of other areas which we may enhance. Our litigation team is doing incredibly well but if there’s an opportunity to enhance that further we might add one or two new partners in that area. But we feel that what we need now is to grow our corporate team to match the size and success of our finance and litigation teams.

‘We’re very good at identifying the right cultural fits in terms of people joining the firm, at the most junior level right up to the most senior partners we hire laterally.’
Dominic Griffiths, Mayer Brown

I feel very strongly that it is not just about increased profitability; it’s also about increasing personal capital. Having a really diverse strong group of lawyers and people in business services who love working in the firm. This place has an incredibly strong and healthy work culture. We concentrate on things like mental health and equality, in particular in senior roles and for women and other people with protected characteristics. My ambition in that area is not just to improve the situation of my own law firm, it is to improve the profession.

What is your elevator pitch for attracting new recruits?

DG: We’re very good at identifying the right cultural fits in terms of people joining the firm, at the most junior level right up to the most senior partners we hire laterally. It’s important to identify that. That also means hiring a good diverse group of people and making it a welcoming environment on arrival. We’ve got good levels of retention in this office. People enjoy working here, but also socialising with each other. It’s a friendly, open environment. It’s a flat structure in terms of management. Hopefully management is approachable and accessible and the partners treat their associates as adults and not as second class citizens, which can happen in our profession. It’s incredibly important to consider that we’ve got the best people in business services. Business services individuals are treated with the utmost respect and in an equal fashion to lawyers.

How has the war in Ukraine impacted the practice?

DG: We had no operations in Russia and therefore very minimal levels of exposure, in relation to the war in Ukraine. But we have seen a significant uptick in work in areas like sanctions and disruption to supply chains and disputes. So, there has obviously been a slight change in the type of work that we have been doing.

How would you define the firm’s culture?

DG: Being in the trenches together, collegiality in the face of stressful circumstances, pulling together and getting deals done, and rewarding people for it. We have a good collegiate environment where people are supportive of each other. We also have a balanced culture between the meritocratic and entrepreneurial nature of a US-centric law firm and the collegiality and traditional aspects of a traditional English law firm.

How do you think the firm’s brand is seen in the market and what would you change about that perception?

DG: We believe the market thinks of us as having very high calibre lawyers who work on some of the best mandates available in transactional work and in disputes. We’re considered to be a very reliable law firm in taking on highly complex work and getting deals over the line.

What does the firm need to do to fulfil its ambitions in London?

DG: Top-quality lateral hires and getting the message out there that we are exceptionally good at dealing with highly complex transactional and disputes work. It’s all about growing and strengthening our corporate practice. Maximising the potential we have across our network. We already work very well together on a transatlantic and international basis, but we can always do better in that respect. So, ensuring that we are doing enough in terms of working together with teams outside of London and that there’s enough cross departmental co-operation, there’s a lot of that already happening in this firm.

‘We’re considered to be a very reliable law firm in taking on highly complex work and getting deals over the line.’ Dominic Griffiths, Mayer Brown

What will working life look like in the coming years?

DG: Hopefully a workable hybrid model where we can ensure that we integrate to work on a remote basis, but also have an office space and environment which is attractive and congenial enough for people to want to come to the office more regularly than not. Ensuring that people are getting the best possible training and good personal interaction, which of course is very good for one’s mental health. Also meeting with clients, a number of whom are back in the City and are operating as they used to do. There has been an enormous uptick in the use of technology and AI. I do believe however, that while we are fully dedicated to innovation and incorporating new ways of working, our clients do expect a traditional type of professional working for them. There’s a really good opportunity to look at technology and advanced technology to lower cost and increase efficiencies in terms of productivity and delivering advice to clients. However, we need to appreciate that it is only appropriate in certain areas and there will be plenty of areas where traditional, bespoke advice would be required.

What have been the standout matters that demonstrate Mayer Brown’s strengths?

DG: Waterwheel Capital Management – our securitisation team advised on three multi-billion dollar deals in 2022, each demonstrating its prominence in innovative top securitisation mandates in the European and global markets. One was for WCM – a defining transaction in the de-risking of the revitalised Greek banking system and one of the first transactions to receive a guarantee from the Greek State under the Hellenic Asset Protection Scheme.

Beazley Catastrophe Bond – we advised Beazley following a £350m institutional placement, subscription and retail offer in November 2022 and then, in December 2022, on the launch of the world’s first cyber catastrophe bond which was defining for the market. This was led by partner Colin Scagell and his team.

VAALCO – we advised this world class energy company, which wanted to expand and facilitate greater exploration opportunities. It identified TransGlobe – which had assets in Egypt and Canada and listed in Toronto, on New York’s Nasdaq, and on London’s AIM – as its partner of choice. Led by partner Kate Ball-Dodd, the deal involved six jurisdictions across both developed and developing markets, five stock exchanges and was unparalleled in its complexity.

Interview conducted by Holly McKechnie

For more information, please contact:

Dominic Griffiths, London managing partner
Mayer Brown
201 Bishopsgate
London EC2M 3AF
United Kingdom

T: +44 20 3130 3000
E: [email protected]

www.mayerbrown.com/en

Sponsored briefing: Key indemnification concerns in M&A transactions in Brazil

Machado Meyer’s Guilherme Bueno Malouf and Paulo Henrique Carvalho Pinto on the key points to consider when engaging with the Brazilian M&A market

Brazil has been in the spotlight for foreign investment for a while. Although the political scenario and global headwinds continue to affect our economy, Brazil has remained an attractive place to invest for a number of reasons, including its large internal market (size of its population), the need of enhancement of its infrastructure system and the scalability of its agricultural sector.

When investing into Brazil, foreign investors need to address the specificities of our legal framework. Key examples of challenges imposed on investors are as follows:

  1. The Brazilian tax system is very complex with different laws (including procedural laws) being imposed on taxpayers, a relatively unstable jurisprudence on tax disputes and a dispute among Brazilian states on tax holidays granted to taxpayers – thus it is not uncommon for Brazilian companies to be subject to continuous tax liabilities.
  2. Brazilian labour courts still apply interpretations of our labour laws that are protective to the employees, notwithstanding the fact that a recent labour reform was passed, which turned the labour relationships for dynamic and less subject to unfair litigation.
  3. Due to some particular features of Brazilian laws, it is not unusual to identify certain inconsistencies or restrictions relating to the registration of ownership/occupation of real properties, which may include (a) lack of certain licences; and (b) the existence of ‘permanent preservation areas’, ‘indigenous areas’ and/or ‘quilombola areas’, or (c) restrictions on acquisition of control of large rural areas, which in sum create excessive burdens on companies so they can develop their activities.
  4. Despite lack of express reference in applicable laws, environmental damage remediation in Brazil is not subject to statute of limitation, pursuant to scholars’ understandings and court decisions (including decisions rendered by the Supreme Court). Courts have also been consistent in considering environmental civil liability as propter rem which means that it is connected to the ownership or possession of a real estate, regardless of fault. In this sense, the owner and those who economically benefit from use of a land automatically assume liability for pre-existing environmental damages, even if the party did not actually cause them. On top of that, environmental laws set forth joint liability among polluting agents – a victim affected by an environmental damage shall not be required to sue all polluting agents in a single action (a certain company may be chosen out of all polluting agents).

The facts outlined above play an important role in M&A transactions in Brazil. Investors need to carefully evaluate tax and labour exposures (including materialised and non-materialised contingencies) of the relevant company, as well as the potential restrictions on the use of real property and related environmental risks.

Notwithstanding the fact that the due diligence is instrumental for the negotiation of the purchase agreement, mainly in so far as representations and warranties (R&Ws), indemnification and collateral provisions are concerned, it is worth pointing out that most of the M&A transactions in Brazil1 adopt the so-called ‘my watch-your watch’ clause, whereby sellers or issuers agree to indemnify the purchaser for losses deriving from acts, facts or omissions taking place at any time prior to the closing of the transaction, regardless of whether such events have a link to a breach of a specific R&W.

In light of the above, the question that rises is: if purchase agreements usually provide for a ‘catch all’ provision whereby purchasers have recourse against sellers and issuers for any pre-closing liability, why should purchasers need a robust set of R&Ws?

The answer is three-fold: (i) firstly, the R&Ws are informational, in the sense that they provide a relatively wide view on the company and its activities and serve as rule-book for purchasers post-closing; (ii) secondly, the R&W are also an important condition precedent to closing; ie, to the extent a R&W is not accurate at closing, a purchaser shall have the right to terminate the purchase agreement and (iii) thirdly and perhaps more importantly, not all R&Ws are covered or superseded by the ‘my watch-your watch’ clause, mainly those where a judgment is provided; eg, a R&W on the fact that the relevant company has sufficient insurance coverage in comparison with players in the same sector and of equal size, or a R&W that the company has all IP rights to develop its activities. Thus, if these R&Ws are incorrect and the company suffers a loss (spends money on buying new insurance or suffers monetary damage because of the lack of adequate coverage, for example), the purchaser will be entitled to claim indemnification based on the breach of the relevant R&W.

Also, one should also pay attention to these other very specific features of the indemnification package usually seen in Brazil:

  1. Time limitation: general statutes of limitation are three years, but certain matters have longer terms, such as taxes and labour (five or six years, depending on whether there is a discussion on the occurrence of tax fraud) and environmental (no limitation). Therefore, the negotiation of the time limitation for the indemnity will depend greatly on the findings of the due diligence, the sector in which the target company operates and the exposure that the target company bears across such various types of contingencies.
  2. Amount limitation: it is common practice for Brazilian purchase agreements to include amount limitations on the indemnification, including caps, de minimis, tipping basket and, in certain cases, a deductible. The negotiation of such limitations is also linked to the findings of the due diligence and the sector in which the target company operates.
  3. Indirect or consequential loss: Definition of loss tends to be one of the most relevant features when negotiating a purchase agreement governed by Brazilian law, as sellers want to exclude indemnification for indirect or consequential loss (eg, lost profits, loss of opportunities) to have a better estimate of the amount that they may have to disburse if the purchaser incurs any loss deriving from past liabilities. Although full indemnification for such losses is not standard, we have seen provisions whereby sellers agree that indirect or consequential losses are indemnifiable for specific events (eg, if the target company does not hold any specific licence to operate its business, for environmental and anti-corruption matters).

In light of the above, a thorough due diligence investigation is extremely relevant, so that purchasers have a full picture of materialised and contingent liabilities of the target company in order to properly negotiate an indemnification package from sellers.

Authors


Guilherme Bueno Malouf
Partner
E: [email protected]


Paulo Henrique Carvalho Pinto
Partner
E: [email protected]

  1. Mainly regarding private companies, as the pattern for listed companies is quite different, with purchasers relying on a representation and warranty on the public filings of the relevant company (under the assumption that the “market” prices the legal issues disclosed in such filings.

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Sponsored briefing: France: new regulations on shortages of health products and new challenges for the life sciences sector

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Sponsored briefing: Q&A with Darren Kantor, director, global head of legal tech implementation and recruitment at Jameson Legal Tech

What have been the main trends in legal tech recruitment over the last year?

We have seen legal tech employers place greater emphasis on technical skills, such as coding, data analytics, and artificial intelligence. This reflects the need for legal tech professionals who can effectively develop, implement, and manage technology solutions.

What we are really proud of in the legal tech space is the growing recognition and importance of diversity and inclusion.

Many legal tech employers are implementing strategies to foster a more inclusive workplace.

Have you seen demand increase for legal tech professionals?

I think with the ongoing digital transformation in the legal industry, there has been a growing demand for legal tech professionals. This trend was really fuelled by the pandemic, where there had almost been a pause on new projects, and once we came out the other side, the market just exploded – so many tech companies creating innovative products and solutions, and law firms and corporate legal teams wanting to be at the forefront of this tech. However, with all this tech available, the one thing that is always imperative is that you must have the right people in place to implement and help with the adoption of technology in the legal sector. This market has been quick to realise that tech and the professionals running this tech come hand in hand, which is why there is such a demand for legal tech professionals right now.

What have been the biggest drivers of activity?

Some of the biggest drivers for recruiting legal technology professionals is a combination of technological innovation, changing client expectations, and the need for greater efficiency and cost-effectiveness in the legal industry.

How do you see the recruitment market evolving over the next few months to a year?

While there is still a continued demand for legal tech professionals, there is also an increased competition for talent. Therefore, we are going to see more employers looking at ways to make their organisations stand out, with benefits like employee perks, remote working, skill development, and career advancement being offered.

We are also going to see a lot more use of AI in our day-to-day tasks, from training, researching, knowledge and many more uses as the technology advances.

For more information, please contact:


Darren Kantor, director, head of legal tech implementation and recruitment

Jameson Legal Tech
24 Greville St
London EC1N 8SS

T: +44 (0)20 3950 0534
M: +44 (0)7961 153 478
E: [email protected]

www.jamesonlegal.com