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Archive for April, 2014

Tuesday 22 April 2014

MH International

Marriott Harrison LLP continues to increase its international offering, focusing on key jurisdictions across all of its departments. Below are some recent examples of Marriott Harrison LLP’s international work:

Corporate

The Corporate Department continues to advise on a large number of international transactions. This includes acting for:

  • a Qatari investment fund on various educational holdings and investments in the UK;
  • an international stadia group on its deal for the provision of ticketing and catering services to a well-known Spanish football club;
  • a South American Aeronautical Commission in Europe in relation to a number of its contractual arrangements;
  • a South American Embassy and Consulate General on various commercial matters;
  • an Irish IT/technology company in connection with a further fundraising from existing equity providers and other shareholders and in connection with a new facility and security arrangements with a London branch of a US bank;
  • a UK gaming company in its new revolving credit and term loan facility with a London branch of US bank with warrants to subscribe for stock in its US parent;
  • a nominated adviser and broker in its role as nomad and broker to a resource company which undertook a placing and open offer to fund capital expenditure to restart mining activities in Tanzania;
  • a Nigerian based goods manufacturer, on its contractual arrangements with various multinational drinks companies;
  • a US fund management client on the providing of legal opinions to a Greek Bank in connection with its credit facility agreements;
  • a Danish client on the re-structuring of its UK subsidiaries;
  • a cornerstone American investor on its new venture in the sports and leisure industry;
  • an American software services provider, as the company’s UK Counsel, in relation to the acquisition of a UK software solutions provider in the media industry;
  • a corporate vehicle issuing bonds, the proceeds of which include investment in international commercial property;
  • certain managers of an operating company in relation to a farm-out agreement relating to certain natural resource assets based off the coast of South Africa; and
  • a major shareholder on the group demerger of an executive search business with offices in the UK, US and Hong Kong.

Media and Technology

The Media and Technology Department has advised:

  • a music label on various royalty and moral rights issues in a number of European territories;
  • a New York based import/export business on trading issues in the UK;
  • a Toronto based heavy metal band, on its recording and publishing deal;
  • long-standing film production client on its international distribution of films;
  • a Swiss based financial services company in connection with the online promotion of its brand;
  • an Israeli based online TV platform on its content licensing arrangements with UK based archives;
  • a Dutch based music publisher on copyright issues in the UK; and
  • a manufacturer of sporting equipment on various competition rules with regard to the exploitation of its products in Europe.

Tony Morris also acted as an arbitrator on:

  • a dispute between Hollywood Studios and a European film distributor; and
  • a dispute between two international technology providers on a claim for misuse of confidential information and trade secrets.

Dispute Resolution

MH Dispute Resolution has been:

  • advising an internet search optimisation specialist in a claim against a Guernsey-based supplier of products via the internet;
  • advising a major Far East commodities trading company in connection with (i) a dispute relating to its exclusive distributor of Russian sourced metals; (ii) losses suffered by it on the purchase of exotic metals contaminated with asbestos;
  • advising South American government entities in connection with issues relating to the service on them of High Court proceedings; and
  • advising in connection with claims advanced against a client in connection with contracts for the building of stadia for the 2014 World Cup.

Real Estate

The MH Real Estate Department has continued to act for:

  • a Malaysian Bank based in Kuala Lumpur, on its ongoing secured lending transactions in the UK.

Employment

The MH Employment Department has:

  • advised both individual and corporate clients based in Italy, Russia and Kazakhstan on a wide range of employment matters; and
  • continued to advise the Brazilian Embassy on a number of contentious and non-contentious matters.

Conferences and Events

In October 2013, Duncan Innes, Andrew Wigfall and Peter Curnock attended the International Bar Association conference in Boston, the world’s largest meeting of lawyers.

In October 2013, Hugh Gardner attended the UKIBC event “in conversation with” Patricia Hewitt and the panel session for the City of London Advisory Council for India.

In February 2014, Tony Morris attended MIDEM 2014 and presented a panel on the topic of user generated content.

Hugh Gardner

MH Corporate

Tuesday 22 April 2014

MH Employment

TUPE Update

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) – the notoriously complex rules which require employers who take over a business, or take over certain contracts from another employer, to take on the employees who worked in the business or the contract acquired – have recently been amended (again).

The changes, enacted by the snappily-titled Collective Redundancies and Transfer of Employment (Protection of Employment) (Amendment) Regulations 2013 came into force on 31 January 2014.

 

Tuesday 22 April 2014

MH Real Estate

 Business Rates

The 2013 Autumn Statement introduced a number of measures designed to reduce the burden of business rates. From 1 April 2014, businesses will be able to spread the cost of their business rates over 12 monthly instalments, rather than in 10 instalments as at present. Further, the business rates increase will be capped at 2% for the year commencing April 2014 for all businesses, as opposed to a 3.2% increase to match inflation.

Tuesday 22 April 2014

MH Dispute Resolution

What do Andrew Mitchell MP and Linford Christie have in common?

The obvious answer, of course, is that both have fallen foul of the tougher stance taken by the Courts following the Jackson procedural reforms. The relatively recent case of Andrew Mitchell MP -v- News Group Newspapers Ltd [2013] EWCA Civ 1537, which has come to be known by the moniker ‘Mitchell’, has had an enormous impact on the way in which litigation is now pursued in the English Courts.

The appellant, Andrew Mitchell MP (“M”) (the claimant in separate defamation proceedings) appealed to the Court of Appeal against the decision of the High Court that a sanction be imposed for his failure to file his costs budget on time.

As part of the Jackson reforms, which came into effect in April 2013, parties in litigation are now required to file costs budgets with the court at an early stage in which that party’s estimated costs to trial are set out in a detailed spreadsheet with (hopefully) reasoned analysis. The Court may then approve or reject the costs budgets of the parties bearing in mind the need to conduct litigation efficiently and at proportionate cost. If a party is successful at trial in the litigation then, generally speaking, it may recover only the sums projected in its costs budget. The practical effect of this process is that increasingly the costs of litigation are front-loaded for a party and parties are discouraged from expending large sums on litigation.

 

Uniform Rapid Suspension system finds in favour of IBM

The Uniform Rapid Suspension system (“URS”) is a rights protection mechanism which forms part of the ‘New gTLDs (generic Top Level Domains) Program’ of the Internet Corporation for Assigned Names and Numbers (“ICANN”) and is designed to provide rapid relief for trademark holders in the most clear-cut cases of infringement. It is intended to offer cheaper, faster responses than the existing Uniform Domain Name Dispute Resolution Policy.

Through the URS Procedure, ICANN aims to offer a lower-cost, faster path to relief for rights holders experiencing clear-cut cases of infringement caused by domain name registrations. A URS complaint must in the first instance be submitted directly to an approved URS provider.

The URS decision provided through the National Arbitration Forum (which is an approved URS provider) in favour of IBM (which was the Complainant) is the first ever decision under the URS. IBM filed a URS complaint on 5 February 2014 and the URS decision was completed on 12 February 2014.

 

Tuesday 22 April 2014

MH Corporate

MH advises Coms plc on acquisition of Redstone Converged Solutions Limited

Marriott Harrison LLP acted for AIM-listed integrated VOIP provider Coms plc on its acquisition of Redstone Converged Solutions Limited (“Redstone”) from Redstone plc for a consideration of £9.5 million. Completion was conditional upon approval of the transaction by Redstone plc shareholders, which was obtained at a Redstone plc general meeting held at the end of 2013.

Private Equity update: BVCA publishes revised model documents for consultation

The British Private Equity & Venture Capital Association (“BVCA”) has recently published for consultation amended drafts of its model subscription and shareholders’ agreement and articles of association for use in early stage investments, for the first time since 2010. Marriott Harrison’s corporate partner, Andrew Wigfall, was invited to join the working group responsible for the revisions in recognition of his wide experience in VC transactions.

The intention of the revised drafts is to bring these template documents up to speed with current market practice. Final versions are expected to be released in April.

 

High Court Ruling on Capital Maintenance

The recent High Court decision in Abbar v SEDCO and others [2013] EWHC 1414 (Ch) is an important reminder to investors of the potential difficulties involved in seeking the return of their investment where expectations of the investment vehicle are not attained.

The decision highlights that an award for damages for breach of contract will not be made where the contract can only be performed in a manner that offends the well established capital maintenance principle, whereby a limited company cannot return capital to its shareholders except in certain circumstances allowed under statute (namely, a reduction of capital, the redemption or purchase of shares, or a distribution in a winding up). This principle exists primarily for the benefit of the company’s creditors.

It’s a Penalty!

A recent Court of Appeal decision has provided clarity on the modern law of penalties and guidance on the structuring of certain provisions in commercial agreements.

In Talal El Makdessi v Cavendish Square Holdings BV [2013] EWCA Civ 1539, a seller (the “Seller”) sold a part of his shareholding in a company (the “Target”) to a purchaser (the “Buyer”). Under the terms of the share purchase agreement (the “SPA”) (i) the Seller retained 20% of the shares in the Target (the “Retained Shares”), (ii) the Buyer was to be (partly) paid in instalments (the “Deferred Consideration”), (iii) the Seller retained a right to sell the Retained Shares to the Buyer at a certain price (the “Put Option”), and (iv) there was a restrictive covenant prohibiting the Seller from competing with the Target following the sale of the part of Seller’s holding in Target (the “Restrictive Covenant”).

 

 

 

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