Health Care

20 Pages·2012·0.96 MB·English

ISSUE 2 2017
I N
International News
FOCUS ON
Enforcing a Commercial US New European Personal Data Spotlight on China’s
Health Care
Arbitration Award in India Breach Obligations on the Horizon Hospital System
IN
FROM THE
Editor
International News
EDITOR Health care systems across the world are facing similar challenges, regardless of their
Andrea Hamilton regulatory or cultural differences. From this however, lessons can be learned in one
Partner jurisdiction and applied elsewhere: the US accountable care organisations model has
Brussels come to the UK as accountable care systems; and the proliferation of cross-border joint
[phone] ventures and affiliations between governments and health care providers and operators
[email protected] generate templates for what works and what doesn’t.
PUBLICATION EDITORS In the same vein, the United States is increasingly adopting European loyalty share programmes,
Aileen Devlin and the EU General Data Protection Regulation (GDPR) comes into effect next year.
Kate Hinze The GDPR will harmonise data protection across Europe for the first time, and affect any
business, regardless of location, that has a connection with EU-originating personal data.
CREATIVE SERVICES
Shared experiences and common purpose vary in other areas. Globalisation is out and
Christine Abrego
nationalism in, as recent aborted deals demonstrate. Nationalism appears to be more
Valerie Green
prevalent in developed countries and may actually prove to be an advantage for emerging
markets that want to play a larger role on the global stage.
Please contact me if you have any comments on our articles or would like to discuss any
of the issues raised.
TABLE OF CONTENTS
6 10 14 18
FEATURES FOCUS ON > HEALTH CARE
3 Nationalism and 8 Rewarding Long-Term 11 Going Global – 16 Spotlight on China’s
Cross-Border M&A: Shareholders: European International Health Care Hospital System
Navigating populist politics and US Loyalty Share Joint Ventures and
David Dai and Jenny Wang
in deal making Programmes Affiliations
18 Accountable Care in
David Dai and Jacob A. Kuipers Thomas Conaghan, Lionel Lesur, Hamid Yunis
the United Kingdom:
Lindsey Reighard and Louis Leroy
6 New European Personal 14 Artificial Intelligence Learning From International
Data Breach Obligations 10 Enforcing a Commercial in Health Care: Experience
on the Horizon US Arbitration Award Framework Needed
Sharon Lamb
in India
Mike Morgan, Paul McGrath Dale Van Demark
and Antonina Nijran Daniel Foster and Jodi Benassi
2 International News
INTERNATIONAL > CROSS-BORDER M&A
Nationalism and Cross-Border
M&A: Navigating Populist Politics
in Deal Making
DAVID DAI AND JACOB A. KUIPERS
More than half of the G20 countries voted-in campaigns that focused on
harming foreign, outside interests as a means to strengthen domestic ones.
Nationalism is in. Globalisation is out.
CONTINUED >
International News 3
INTERNATIONAL > CROSS-BORDER M&A
Nationalistic rhetoric is proliferating ANT FINANCIAL AND because Ant Financial is owned primarily
across the global political landscape. MONEYGRAM DEAL IN LIMBO by Chinese investors, it does not meet
From India, and Prime Minister Narendra sufficient standards for being a US
Since January 2017, Ant Financial, which
Modi’s “India First,” to the United States, money transmitter.
is headquartered in China and is the
and President Donald Trump’s “Make
financial payments affiliate of Chinese
Someone in the US Government may
America Great Again,” politicians are
e-commerce giant Alibaba, has been
have been listening to Euronet. On 11
scoring popularity points and galvanising
battling Euronet, a US-based financial
July 2017, Ant Financial was forced
voters who yearn for national glory.
payment provider, to acquire MoneyGram,
to resubmit the deal for review by the
a US-based cross-border payments
With increased nationalism, two elements Committee on Foreign Investment in
service. After much negotiation among
of globalisation—the free flow of the United States (CFIUS) after failing
the three companies, Ant Financial
goods and services (trade) and people to obtain clearance within the normally
prevailed over Euronet with a US$1.2
(immigration)—have come under attack allotted 75 days. CFIUS performs a
billion offer in April 2017.
across the world, where protectionist national security review of all acquisitions
and anti-immigration policies are of US companies by foreign entities. The
disrupting the globalised world order. International deal fact that Ant Financial could not obtain
The third element—the free movement clearance within the normal review period
of money or investment—also might making is not reflects a heightened level of scrutiny by
not be immune to nationalism. the US Government. US Senator Jerry
Moran, who represents the state where
Several anecdotes signify that a rise necessarily doomed.
Euronet is headquartered, has spoken
in nationalism could jeopardise cross-
publicly and advocated to CFIUS that
border investments and deals. Two of
the deal represents a significant security
the most recent include Ant Financial’s
concern to US citizens.
Throughout the negotiations, and
(China) takeover of MoneyGram (US),
even since MoneyGram accepted Ant
and the implosion of PPG Industries’ Against the political backdrop of
Financial’s offer, Euronet stressed
(US) prolonged pursuit of Akzo Nobel President Trump’s America First
security and data privacy concerns over
(Netherlands). These examples do foreign policy agenda, the commercial
having a Chinese company control a
not necessarily mean that increased relationships between US and Chinese
US-based payments provider. Euronet
nationalism translates into a decline in companies are complex and difficult to
has repeatedly pushed the idea that
international deal-making. Nevertheless, gauge. Nevertheless, Euronet’s security
nationalism is a risk variable that further concern claim places its and the Trump
adds to the complexity and prickly Administration’s interests in alignment,
nature of cross-border as it plays well with the Administration’s
investment and M&A. security concern over Chinese financial
manipulation. The Ant Financial–
MoneyGram deal remains in limbo,
partly owing to nationalist rhetoric
and policy, putting MoneyGram’s
shareholders at risk of
taking Euronet’s smaller
(by US$200 million) bid
if CFIUS rejects Ant
Financial’s deal.
PPG GIVES UP ON
AKZO NOBEL
In early March 2017,
PPG Industries, a US-
based paint and specialty
coating manufacturer and
supplier, made a US$28
billion offer to buy Dutch
competitor Akzo Nobel. The
timing for PPG was not good, as
the Dutch national elections, which
44 IInntteerrnnaattiioonnaall NNeewwss
were largely dominated by anti-foreign, PPG’s attempt to acquire Akzo Nobel Third, outbound cross-border M&A
pro-national rhetoric, were to occur a few provides an example for how nationalist might be a mechanism for advancing a
weeks later. The Dutch public had grown winds can put further pressure and nationalist agenda. For a country that
increasingly concerned over foreign embolden defensive measures against an wants to play a larger role on the global
acquisitions of Dutch companies. unsolicited, foreign takeover. Without the stage and increase its national stature,
This concern was further stoked by strong political pressure in favour of Akzo having its domestic companies become
nationalist leaning politicians who Nobel’s independence, the company more prominent internationally through
attempted to tie foreign acquisitions might have found it much harder to make cross-border acquisitions could be
to a loss in Dutch identity. its case to shareholders. complementary. This is clearly one of
the reasons behind the recent boom in
Even after the elections, in which more
NATIONALISM ADDS China’s outbound investment.
moderate politicians prevailed, Dutch
FURTHER COMPLEXITY TO
politicians continued to oppose the deal, Regardless of nationalism’s impact
CROSS-BORDER M&A
culminating with multiple provinces, on international deal flow, the growth
Like trade and immigration, international
as well as the Dutch Economic Affairs in nationalist tendencies has become
investment and cross-border M&A
Minister, openly criticising the potential a significant variable that must be
are not immune to the growing wave
deal. They cited concerns over Dutch addressed by any entity engaging
of nationalism. The Ant Financial–
workers, labour standards, and the need cross borders.
MoneyGram deal shows how nationalist
to maintain Dutch-controlled entities.
tendencies have the possibility of
Junda (David) Dai
shaving US$ hundreds of millions from a
Companies can use a Partner, MWE China Law
company’s valuation. And PPG’s efforts
Shanghai
to acquire Akzo Nobel reflect how [email protected]
country’s nationalist companies can use a country’s
nationalist fervour to strengthen their David represents a variety of European and
fervour to strengthen defensive position. US clients in their direct investments in China,
including green-field investments, cross-border
Although these examples suggest a mergers and acquisitions, venture capital and
their defensive position. negative outlook for cross-border M&A in private equity investments, and strategic alliances.
a world of national interests, international
Jacob Kuipers
deal making is not necessarily doomed.
Associate
Akzo Nobel, which refused to engage Boston
First, nationalism remains strongest
in negotiations with PPG, used the [email protected]
in large, developed economies, while
nationalist political landscape to
cross-border M&A is growing fastest in
continually rebuff PPG’s advances, Jacob advises public and private companies
emerging markets. Moreover, investment
despite PPG making three additional on complex domestic and cross-border corporate
flows between developing countries
transactions, including mergers and acquisitions,
offers that topped out at US$29.5 billion
continue to increase. For example, international reorganisations, and venture financings.
in May 2017. Although most Akzo Nobel
despite the recent setbacks in China’s
shareholders approved of its defensive
high-profit acquisition projects in the
posture, Elliot Advisors, a hedge fund
United States and Europe, which is
with significant holdings in Azko Nobel,
mainly attributable to rising nationalism,
attempted to get a Dutch court to remove
China’s investment in developing
Akzo Nobel’s management for failing to
countries in the Middle East and South
engage with PPG.
Asia under China’s One Belt One Road
initiative continues to grow. As a result,
The Dutch court rejected Elliot Advisors’
international deal-making no longer relies
arguments, finding that Akzo Nobel’s
on the mature markets where nationalism
actions aligned with most shareholders’
poses the greatest risk.
wishes. The case, however, further
strengthened the nationalist message
Second, nationalist policies like trade
and sent lawmakers scurrying to put in
protectionism and anti-immigration
place laws that would make it harder
reform do not necessarily restrict
for a foreign entity to acquire a Dutch
cross-border deal flow. In fact, the
company. On 1 June, PPG formally
opposite may be true as a World
withdrew its offers, realising it did not
Bank study found that when trade
have the legal or political capital to
protectionism increases, international
leverage the deal.
M&A and investment also increase.
International News 5
GLOBAL > DATA PROTECTION
New European Personal will need to assess whether or not a
breach, if not dealt with, is likely to have
a detrimental effect on the individuals
concerned; for example, is the breach
Data Breach Obligations likely to result in discrimination, loss of
confidentiality, financial loss or damage
to reputation?
Whether or not a risk exists will vary
on the Horizon
depending on the nature of the data
involved in the breach and the nature of
the breach itself. For instance, a breach
resulting in the disclosure of sensitive or
financial data is likely to pose a greater
MIKE MORGAN, PAUL MCGRATH AND ANTONINA NIJRAN
risk to the rights and freedoms of an
individual than a disclosure of the staff
telephone list. The recitals to the GDPR
The EU General Data Protection Regulation (GDPR) will introduce suggest that a relatively low threshold will
apply, however, in determining whether
mandatory personal data breach notification obligations across all
or not there is such a risk to people. In
practice, therefore, it is anticipated that
sectors, in all EU countries, for the first time.
notification will be required in most cases.
Where the duty to report a breach
does arise, care will need to be taken
The GDPR will come into effect from 25 leading to the accidental or unlawful to ensure that the report is made to the
May 2018. Its extraterritorial reach means destruction, loss, alteration, unauthorised correct supervisory authority. Where the
that the new data breach notification disclosure of, or access to, personal personal data breach concerns cross-
obligations will apply to any organisation data transmitted, stored or otherwise border processing activities, notification
located anywhere in the world that processed”. In practice, this threshold is ought to be made to the organisation’s
processes personal data in relation to likely to be met in most cases, including lead supervisory authority under the
the offering of goods or services in the instances where data is encrypted or GDPR’s “one-stop shop” mechanism.
European Union, or is involved in monitoring deleted in a ransomware attack and This will be the supervisory authority
the behaviour of data subjects within the where data is exfiltrated as part of a hack. of the EU Member State in which the
European Union. This will be the case relevant controller has its sole or main
regardless of whether or not the organisation WHAT NOTIFICATION establishment, i.e., where the decisions
has any physical presence or formal OBLIGATIONS ARISE IN A about the purposes and means of the
establishment in the European Union. PERSONAL DATA BREACH? processing are taken.
The extent of an organisation’s notification
The stakes for compliance with the Data controllers that do not have an
obligations in the event of a personal
notification obligations are high, as establishment in the European Union
data breach will depend on whether,
failures can lead to fines of up to €10 need to appoint a representative in
in the particular circumstances, the
million or 2 per cent of a company’s one of the Member States where the
organisation is acting as a data controller,
worldwide annual turnover for the data subjects, whose personal data is
i.e., determining the purpose and means
preceding financial year, whichever processed, are located. The GDPR does
of the data processing, or a data
is higher. Individual data subjects will not place separate breach notification
processor, i.e., processing data on behalf
also have the right to bring legal claims obligations on these representatives
and at the direction of a data controller.
against controllers that fail to comply. or expressly enable them to assume
the data controller’s responsibilities for
It is therefore important for all Data Controller Notification
breach notification in the alternative.
organisations to understand the extent to Obligations
which (and when) data breach notification In contrast, data controllers will only be
For data controllers, the default position
obligations will arise under the GDPR. required to report a personal data breach
is that personal data breaches must
to data subjects where it is “likely to result
be reported to the relevant supervisory
HAS A PERSONAL DATA in a high risk to the rights and freedoms
authority by a data controller unless the
BREACH OCCURRED? of natural persons” (authors’ emphasis).
breach is “unlikely to result in a risk to the
The GDPR defines a personal data rights and freedoms of natural persons”
Whilst the GDPR does not provide specific
breach as “a breach of security (authors’ emphasis). A data controller
guidance on the circumstances in which
66 IInntteerrnnaattiioonnaall NNeewwss
this obligation will be triggered, the text Data Processors WHAT STEPS SHOULD
clearly suggests a higher threshold. ORGANISATIONS TAKE TO
Similarly, the obligation imposed by the
The GDPR enables supervisory authorities PREPARE?
GDPR on data processors is to inform the
to assess matters for themselves and,
data controller “without undue delay”. Preparatory actions may include
where appropriate, order an organisation
to notify data subjects of a breach. > Establishing a breach response team
WHAT INFORMATION NEEDS TO
that includes both appropriate internal
BE PROVIDED IN A REQUIRED
Notification to data subjects will not
staff members and relevant external
NOTIFICATION?
be required in the event that the data
advisers such as lawyers and forensic
controller has “implemented appropriate
Data Controllers IT experts. This will aid a more rapid
technical and organisational protection
response in the event of a breach
A report must contain the following
measures… in particular those that
incident and make it easier to comply
information:
render the personal data unintelligible
with notification obligations.
… such as encryption” or has taken
> The nature of the personal data breach.
> Preparing a data breach response plan
“subsequent measures which ensure
that the high risk to the rights and > The name and contact details of the and allocating responsibilities amongst
freedoms of data subjects… is no longer data protection officer (if an organisation the response team.
likely to materialise”. has one) or other contact point where > Developing internal data breach
more information can be obtained.
notification procedures.
Data Processor Notification
> A description of the likely consequences
> Training personnel to ensure prompt
Obligations
of the personal data breach.
escalation of and responses to breach
For data processors, any personal data
> A description of the measures taken, incidents.
breach will be reportable to the data
or proposed to be taken, to deal with
> Running mock response exercises
controller. Data processors will not,
the personal data breach and, where
to identify faults and areas for
however, be obliged to notify a supervisory
appropriate, of the measures taken to
improvement.
authority and/or any data subject.
mitigate any possible adverse effects
of the breach. > Implementing appropriate technical
WHAT TIME LIMITS APPLY? security measures appropriate to
Where breach notification obligations It is anticipated that the nature of the organisation’s data
arise under the GDPR, the time limits for processing activities.
reporting are potentially onerous, adding
notification will be Dennis Brunner also contributed to this article.
further pressure to what is often already
a crisis situation.
Mike Morgan
required in most cases.
Partner
Data Controllers
Los Angeles/Silicon Valley
[email protected]
Where a data controller concludes that
the personal data breach in question is a Notifications by data controllers to data
notifiable event, the relevant supervisory subjects require the same content, Mike is co-chair of the Firm’s Global Privacy and
Cybersecurity practice. He has guided clients
authority will need to be notified “without except no information about the nature
through some of the largest and most complex data
undue delay and, where feasible, not later of the personal data breach needs to be
breaches, including breaches involving global data.
than 72 hours” after the controller has included. Each data subject should be
become aware of it. notified individually, except where this Paul McGrath
would involve “a disproportionate effort”. Partner
What constitutes “undue delay” is not In such circumstances, communication to London
defined in the GDPR. For larger and [email protected]
the affected data subjects can be carried
more complex data breaches, where it is
out via “public communication or similar
not possible to provide full information measure whereby the data subjects are Paul advises on privacy and data protection matters,
at the same time, the GDPR advocates with a particular focus on those arising in the
informed in an equally effective manner”.
providing it “in phases without undue employment context.
further delay”. Where notification is made
Data Processors
Antonina Nijran
outside the 72 hour window, reasons for
the delay will need to be provided. There is no prescribed form which a Associate
London
data processor’s notification to a data
[email protected]
Any notifications to data subjects must controller ought to take.
also be made “without undue delay”,
Antonina advises clients across a range of industry
although not necessarily within 72 hours.
sectors on privacy and data protection issues.
International News 7
TRANSATLANTIC > LOYALTY SHARE PROGRAMMES
Rewarding “Long-term oriented shareholders, who hold on to their shares
during the difficult but critical time the company is facing
[will thus be rewarded].” This is how the CEO of Michelin
explained the motivation behind the issuance of loyalty shares
Long-Term by his company in 1991. Loyalty shares (typically in the form
of additional shares or dividends) that reward shareholders
who hold shares for a certain period of time, and other similar
programmes, have become increasingly popular in European
countries as a way to incentivise long-term shareholding.
Shareholders:
They are now slowly making their way into the United States
but there are a number of issues US companies should be
aware of before launching such a programme.
European and
EUROPEAN LOYALTY SHARE PROGRAMMES
Rewarding long-term shareholding has been subject to
regulation by the European Union since 2007 when the
US Loyalty Share
European Parliament passed Directive 2007/36/EC to
regulate the exercise of certain rights of shareholders in listed
companies. The Directive provides a limited framework for
encouraging a higher level of monitoring and engagement by
Programmes
institutional investors and asset managers, and leaves these
issues in the hands of the individual EU Member States.
France offers several mechanisms to support long-term
shareholding, the latest having been implemented in March
THOMAS CONAGHAN, LIONEL LESUR, 2014 with the adoption of the Loi Florange. French listed
LINDSEY REIGHARD AND LOUIS LEROY companies must automatically grant double voting rights
to shareholders who hold their shares in registered form
for at least two years, and non-listed companies may grant
double voting rights to shareholders who hold their shares in
Loyalty share programmes, or
registered form for the same period.
programmes that encourage
Listed and non-listed French companies may also issue
L-warrants to certain shareholders, or grant loyalty dividends
shareholders to hold their shares
under certain conditions. These loyalty schemes have been
for longer periods of time, implemented by many major French listed companies, such as
L’Oréal, Electricité de France and Crédit Agricole (as a loyalty
have been gaining traction in dividend), or Vivendi, Engie, and Air France KLM (as double
voting rights).
Europe, but for a number of
Other European countries have adopted similar mechanisms.
reasons they remain uncommon
The Netherlands permits companies to grant multiple voting
rights to certain categories of shareholders if the companies
in the United States.
register their shares in a Loyalty Register. This scheme was
notably used by Ferrari NV in its initial public offering (IPO),
and by Fiat Chrysler Automobiles NV upon completion of the
cross-border reverse merger by Chrysler-Fiat with and into
Fiat Investments NV in 2014.
In Italy, a 2010 Legislative Decree allowed listed companies
to pay increased dividends to shareholders that hold common
shares for at least one year. In 2014, a reform authorised
both listed and non-listed Italian companies to issue shares
with multiple voting rights. These schemes have been
successful, and many Italian companies, including Campari
and Amplifon, have awarded loyalty shares to certain
categories of shareholders.
88 IInntteerrnnaattiioonnaall NNeewwss
US LOYALTY SHARE Some US companies have, however, the underlying shares, i.e., the share
PROGRAMMES ventured into these relatively uncharted price drops while he is trying to make it
waters. For example, The J.M. Smucker to the loyalty date, he should therefore
Despite the popularity of loyalty share
Company has adopted “time phased be entitled to receive, as damages, the
programmes in Europe, US companies
voting,” allowing each share held for “consideration” he “paid” for registering
have been slow to implement them.
more than four years to have 10 votes into the loyalty share programme.
The US stock market is generally
per share (instead of one vote) on certain
characterised by “short-termism”:
Given the novel structure of US loyalty
matters, and NexPoint Credit Strategies
a focus on short-term results at
share programmes, and the lack of
Fund has offered
the expense of long-
precedent or specific support for loyalty
a 2 per cent match
term performance, US shareholders…
shares without registration, companies
to shareholders
driven in part by
would be prudent to either register such
who hold the fund’s
the need to report
tend to hold their shares or, at a minimum, seek no-action
common shares for
quarterly earnings.
relief from the SEC.
at least one year.
US shareholders,
many of which are shares for only a
Other companies NEXT STEPS
institutional investors,
have offered
therefore tend to These are only a few of the issues that
short period of time. warrants to
hold their shares for a company should consider before
purchase shares
only a short period of implementing a US loyalty share
that are exercisable
time. According to the programme. Because of the lack of
at a certain period of time in the future,
2016 New York Stock Exchange (NYSE) regulatory guidance in the United States,
such as Check-Cap Ltd., an Israeli
Group turnover statistics, the annualised in contrast with Europe, companies
company that issued warrants to its US
turnover for shares listed and traded on should tread carefully if they decide to
IPO purchasers in 2015, permitting such
the NYSE at the end of 2016 was 70 proceed with such a programme in the
purchasers to acquire common shares at
per cent, indicating that a majority of United States.
a fixed purchase price if they held their
shareholders held their shares for less
IPO shares for a minimum of one year.
than one year. Thomas Conaghan
Partner
REGISTRATION OF LOYALTY
The US Securities and Exchange Washington DC
Commission (SEC) attempted to SHARES [email protected]
promote long-term shareholding by If a company decides to pursue a loyalty
proposing a rule that would have provided share programme for its US shareholders, Tom advises US- and foreign-based public companies
shareholders that held a significant it should consider whether or not the on issues relating to corporate transactions.
amount of company stock for at least programme constitutes a “sale” or an “offer
three years the right to include in to sell” a security that requires registration Lionel Lesur
Partner
the company’s proxy statement their under the Securities Act of 1933.
Paris and Rome
own director nominees. The rule was
[email protected]
ultimately invalidated by US courts, Depending on the facts and circumstances,
but that did not stop companies from the SEC might view a loyalty share as
Lionel advises domestic and international
voluntarily, or, in response to shareholder being more similar to a “right” issued in
companies on matters involving corporate and
activist demands, adopting their own a rights offering, in that the holder can competition/distribution law.
proxy access bylaws. elect to exercise that right by foregoing
the legal right to transfer its underlying
Lindsey Reighard
Proxy access provisions can now be shares, thereby accepting investment Partner
found in the bylaws of a majority of the risk in exchange for receiving the loyalty Dallas
Fortune 500 and, generally, they also share. Even though there is no exercise [email protected]
require at least three years of ownership price for a loyalty share, there could be
to be eligible to nominate director “value” flowing back to the company in Lindsey represents private and public companies
candidates for inclusion in the company’s the form of loyalty, lack of volatility and in connection with US and international corporate
transactions.
proxy statement. The SEC has, however, other indirect benefits that long-term
not yet adopted mechanisms expressly shareholders provide to the company.
Louis Leroy
permitting loyalty shares, voting
Associate
rights and dividends. Given the lack The SEC may also take a “remedy-based”
Paris
of regulatory framework, loyalty share approach, by stating that the holder [email protected]
programmes remain a novelty in the who chose to “register” his “intent”
United States. to be loyal is making an investment Louis advises French and international companies
decision. If he is “penalised” for holding
on all aspects of corporate and financial law.
International News 9
INTERNATIONAL ARBITRATION > INDIA
Enforcing a Commercial
US Arbitration Award in India
DANIEL FOSTER AND JODI BENASSI
The prevailing cross-border system for dispute resolution— would be contrary to the fundamental
policy of Indian law, the interests of
international arbitration—is often more predictable and less
India, Indian justice or morality, or if the
award is patently illegal under Indian law.
expensive than litigation. Enforcing a foreign award can, however,
Public policy issues are the overriding
be arduous, especially in jurisdictions like India. impediment to the enforcement of arbitral
awards in India.
The first issue to be aware of is that there Parties seeking to enforce awards in It is important that adequate notice be
is no advantage in having a US Federal India should consider partnering with promptly given to the respondent Indian
Court confirm the arbitration award local counsel that possesses the right company of all hearings and pleadings,
and issue a judgment before seeking experience for the particular court and especially ex parte awards, to ensure the
to enforce the award in India. An arbitral the issue at hand. respondent does not have an opportunity
award and subsequent judgment have to contend that it was not given notice
Depending on the relief being sought,
equal footing in the Indian judicial system nor adequate opportunity to appear
award holders should consider filing
insofar as recognition and execution and present its case before the tribunal.
the enforcement application in the High
are concerned. Once a party has the Without proper notice, Indian courts will
Court of the jurisdiction where the Indian
final award, it therefore may, and should, likely set aside the award.
company owns significant assets, rather
begin the enforcement process. Early
than where the company’s registered
engagement with Indian counsel will Daniel Foster
offices are located. Proper selection
help effectively navigate Indian civil Partner
procedure issues. of the court where the enforcement Orange County
proceedings will be instituted is essential [email protected]
Under the New York Convention, to avoid needless debate on jurisdiction.
a US award is required to go through Orders allowing or refusing enforcement Dan litigates and tries complex intellectual property
an enforcement procedure under which are appealable orders under India’s and commercial cases, and advises companies on
the party seeking enforcement must Arbitration Act, so the award may go from IP licensing issues, pre-litigation strategy, licensing
audits, and patent acquisition matters.
apply for recognition and enforcement the High Court to the Appeal Court to the
of the award. In India these proceedings Supreme Court.
Jodi Benassi
should be instituted in the relevant
Associate
Public policy also plays a prominent
state or union territory High Court. The
Silicon Valley
role in the Indian judicial system, as
High Courts maintain jurisdiction over [email protected]
the law mandates that only a judgment
the enforcement of foreign awards,
determined on the merits of the case
irrespective of the quantum of the award
Jodi focuses her practice on matters related to
is enforceable. Arbitral awards can be
and they are generally adept at handling intellectual property litigation, including patents,
the intricacies of commercial matters. refused on grounds of public policy trademarks, copyrights, and trade secrets.
when the enforcement of the award
10 International News