United Nations Global Compact - Communication on Progress 2022
Since 2021, van Berings has been committed to the UN Global Compact and we are glad to share with you our 2022 Communication on Progress.
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Italy – Registration Tax on Share Pledges
Pursuant to Article 43(f) of Presidential Decree no. 131/1986, the basis for registration tax on deeds of pledge guaranteeing third parties’ obligations is represented by the guaranteed amount, or, if the collateral consists of money or securities, by the value of the pledged asset, if lower than that of the guaranteed obligations.
Logistics 4.0 – The Digital Supply Chain
In today’s global economy, the logistics sector has sustained considerable growth and is expected to grow further, in the years to come. Supply chain processes and transportation are critical factors for meeting the needs and demands of the global economy.
Italy – Supreme Court Ruling on the Repayment Term of Overdraft Facilities
Following the termination of an overdraft facility, a bank obtains a payment injunction in court and claws back the family trust created by the debtors, who resist by claiming that the payment injunction had been applied for prior to the elapse of the 15-days grace period awarded by article 1845 of the Italian Civil Code to the debtors for repayment of the outstanding overdraft facilities.
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Logistics 4.0 – 2022 Trends
The past decade, and especially the past two pandemic-hit years, have seen a rapid growth rate in the logistics industry, which is expected to expand further still. This has impacted logistic processes, mobility, warehousing, security and supply chain integrity.
Insect to Feed the World Conference 2022
The fourth edition of the Insects to Feed the World Conference will take place in Québec City between June 12th to 16th, 2022.
Italy – Reserved AIFs: New Rules for Retail Investors
Effective as of March 30th, 2022, with Decree no. 19/2022 ("Decree"), the Italian Ministry of Economic Affairs has amended the requirements to subscribe/acquire shares or units in Italian reserved alternative investment funds (so-called "FIA Italiani Riservati" – "Reserved AIFs"), by enlarging the array of eligible retail investors.
Guiding Principles on ESG and Sustainable Investment Funds Introduced by the Financial Conduct Authority
The Financial Conduct Authority (“FCA”) has recently received an influx of applications for the authorization of climate-related funds.
van Berings talks - 2022 Series - On Sustainable Finance
Episode 3 of 3: Green Loans and Sustainability-Linked Loans
Italy – Partial Invalidity of Guarantees based on the Italian Banking Association Model Agreement (So-Called “Modello ABI”)
By decision no. 41994 of December 30th, 2021, the Italian Court of Cassation, Joint Chambers, gave an historical ruling on omnibus (open-end) guarantees granted on the basis of the model used by Italian banks between 2002 and 2005, the so-called “Modello ABI” (the “Model”).
van Berings talks - 2022 Series - On Sustainable Finance
Episode 2 of 3: Sustainability-Linked Bonds
van Berings joins Net Zero Lawyers Alliance
By joining Net Zero Lawyers Alliance ("NZLA"), van Berings further reinforces its longstanding committment to the Race to Zero philosophy as part of its broader sustainability-driven strategy.
EU – Migratory Locust: The Second Insect Approved for Human Consumption
The migratory locust ("locusta migratoria") has been green-lighted for official entry into the EU food market as of November 2021, making it the second insect to be included in the European Commission's list of authorized novel foods, after dried yellow mealworms, which were approved in July, 2021
van Berings talks - 2022 Series - On Sustainable Finance
Episode 1 of 3: Green Bonds, Social Bonds and Sustainability Bonds
van Berings had the pleasure to attend the Law & Governance Day 2021 hosted by the University of Glasgow during COP26
The COP26 is still running in Glasgow under the spotlight of media and public
opinion, and the international debate on climate change is getting tougher as
days come by.
van Berings had the pleasure to attend the Pre Conference to Climate Law & Governance Day 2021 during COP26
We had the pleasure to attend the Climate Law and Public Policy Conference preparatory to Climate Law & Governance Day 2021 during COP26, hosted by the University of Cambridge on October 29-30.
PRIVATE magazine published a contribution of our partner Francesco Adami
In this month’s issue, PRIVATE magazine published a contribution of our partner, Francesco Adami, on Family Business Succession Agreements.
van Berings shortlisted in the 2021 TopLegal Awards for the categories Corporate/M&A and Banking&Finance
We are delighted to have been shortlisted for the 2021 TopLegal Awards for the
categories Corporate/M&A and Banking&Finance.
EU – Commission Authorized the Use of Processed Animal Proteins Derived from Insects in Poultry and Pig Feed
The Commission Regulation (EU) 2021/1372 of August 17th, 2021 ("Regulation") authorizes, among others, the use of processed animal proteins derived from insects (insect PAPs) in poultry and pig feed, amending Annex IV to Regulation (EC) No 999/2001 of the European Parliament and of the Council on the prohibition to feed non-ruminant farmed animals (other than fur animals) with protein derived from animals, in order to prevent, control, and eradicate certain transmissible spongiform encephalopathies ("TSE").
Italy - Interest in Bringing Legal Proceedings While Challenging a Shareholders’ Resolution to Approve the Company’s Financial Statements
By decision No. 21238, dated July 23rd, 2021, the Italian Supreme Court confirmed an essential interpretation of the fundamental requirement to bear a genuine interest in bringing legal proceedings under Sec. 100 of the Italian Code of Civil Procedure as it applies to legal actions brought by a shareholder to challenge the company’s financial statements.
van Berings with the Botter Family in the Capital Increase for the Takeover of Mondodelvino
van Berings, with a team composed of partner Francesco Adami and associate Gianluca Volpato, acted as legal advisor of the Botter Family in the capital increase to complete the takeover of a majority stake in Mondodelvino by the joint venture between Clessidra and the Botter Family.
EU – Upgrade of the Dual-Use Statutory Framework
On May 10th, 2021, the Council of EU adopted a regulation for the upgrade of the EU system on export controls of dual-use items (“New Dual-Use Regulation”). Purpose of the New Dual-Use Regulation is to strengthen controls on a wider range of dual-use goods, assuring a more effective enforcement of such controls throughout EU. Once effective, the New Dual-Use Regulation will replace the Regulation (EC) n. 428/2009.
EU – Updating the 2020 Industrial Strategy
On May 5th, 2021, the European Commission addressed the EU Parliament, the Council and other European institutions, calling the attention on the need to update the "2020 New Industrial Strategy: Building a Stronger Single Market for Europe's Recovery" ("2020 Industrial Strategy").
Italy – Milan Courts on Forfeiture of Knowledge-Based Indemnification Claims in M&A Contracts
Ruling
on a case of alleged breach of Seller’s R&Ws related to the truthfulness,
accuracy and completeness of the Target’s financial statements, the Court of
Milan on March 19th, 2021, provided – among others – some clear
indications about the assessment of the expiration of forfeiture terms
applicable to certain knowledge-based indemnification claims.
EU - Green Light on First Insects as Novel Food
Following the application of the French insect producer "SAS EAP Group – MICRONUTRIS" ("Applicant"), on May 3rd, 2021, the EU Standing Committee on Plants, Animals, Food and Feed issued a favorable opinion supporting the draft Commission Implementing Regulation aimed at allowing the commercialization throughout the EU of dried yellow mealworms (i.e. Tenebrio molitor).
Italy – Purpose Loan Proceeds to Refinance Past Unsecured Indebtedness with same Lender. Three recent Court of Cassation Rulings
Three recent rulings of the Court of Cassation
of the first part of 2021 shed light on the interaction between purpose loans (“mutui di scopo”) and the effectiveness
of the related security interests.
Italy – Consob and Bank of Italy on Crypto-Assets Related Risks
On April 28th, 2021, the Italian Regulator ("Consob") and the Bank of Italy issued a joint press release calling the attention of the community, and in particular of small savers, to the risks associated with crypto-assets. In recent times, also the three European supervisory authorities (i.e. Eba, Esma and Eiopa) have pointed out the highly risky and speculative nature of such instruments, warning consumers against risks inherent in crypto-assets transactions.
Mexico – Resident Partner Ciro Petricciuolo Appointed at Fondazione Italia-Messico
We are pleased to
announce that Ciro Petricciuolo, Resident Partner at our Monterrey office, has
been appointed as Director and Secretary General of Fondazione Italia-Messico,
an Italian foundation whose mission is to strengthen cultural, academic, and
business relationships between Italy and Mexico.
Italy – Family Business Succession Agreements – Joint Control Exercised by the Assignees of Minority Shareholdings by Virtue of a Shareholders’ Agreement does not Qualify as Legal Control for the Purposes of the Gift Tax Exemption
By judgment No. 6591 of March 10th, 2021,
the Court of Cassation ruled on an iconic case concerning a family business
succession agreement (“Patto di Famiglia”)
pursuant to Sec. 768-bis of the
Italian Civil Code (“ICC”), whereby
the controlling shareholder had transferred to his three sons equal
shareholdings of roughly 25% each, who then entered into a shareholders’
agreement mainly aimed at ensuring a unanimous governance of the company and a
lock-up obligation for the following five years.
Mexico – Government’s Electricity Counter-Reform – More than 90 Amparo Actions Filed to Challenge its Constitutionality
As many experts predicted, the “DECRETO por el que se reforman y adicionan diversas disposiciones de la Ley de la Industria Eléctrica”,
the controversial fast-tracked electricity counter-reform pushed by Mexican government, has caused a wave of
amparo actions, upon entering into force.
Legal and Contractual Consequences of the Suez Canal Blockage by MV Ever Given
From March 23, 2021 through March 29, 2021, MV Ever Given – one of the world’s largest container vessel owned by a Japanese firm and chartered by the Taiwanese shipping company Evergreen Marine – has been wedged in the Suez Canal, causing a knock-on effect that involved more than 400 ships.
EU – Implementation of the Beneficial Ownership Registers Interconnection System
On March 1st, 2021, the European Commission enacted the Implementing Regulation 2021/369 ("Regulation"), thus establishing the technical specifications and procedures required by the EU Directive 2015/849 for the set up of the Beneficial Ownership Registers Interconnection System ("BORIS").
Italy – EU Regulation 2013/575 – The New Definition of Default in Force Since January 1st, 2021
As of January 1st, 2021, the new definition of default set out in the European Regulation on prudential requirements for credit institutions and financial intermediaries entered into force, introducing stricter criteria than those applied so far.
van Berings in the Takeover of Botter Wines by a Private Equity Fund Managed by Clessidra
van Berings assisted the Botter family in the takeover
of Casa Vinicola Botter S.p.A. by a private equity fund managed by Clessidra
with an M&A team composed of Partner Francesco Adami and associates Gianluca
Volpato and Alessandro Cattaneo and a finance team led by Partner Luca
Lippolis.
Italy – Legislative Decree No. 17/2021: Implementation of the EU Prospectus Regulation
On February 2nd, 2021, the Italian Legislator enacted the Legislative Decree No. 17/2021 ("Decree") aimed at implementing within the Italian statutory framework EU Regulation No. 1129/2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market ("Prospectus Regulation").
Italy – Benefit Companies: A growing phenomenon
Nowadays, sustainability – intended in the broader sense of positive environmental and social impact of business efforts – is a sensitive topic for many entrepreneurs. Promoting certain "social structures" aimed at pursuing sustainability, without losing track of the business side, is the goal of recent actions of the Italian legislator.
Do capital losses relating to fiscal years prior to 2020 qualify to postpone mandatory capital reduction or dissolution of the company? The Ministry of Economic Development clarifies the impact of Sec. 6 of Law Decree No. 23/2020
The Italian Ministry of Economic Development ("MISE") (Circular No. 26890/2021) recently provided useful indications on the application of Sec. 6 of Law Decree No. 23/2020, as replaced by Sec. 1, Par. 266, of Law No. 178/2020, concerning the reduction of the corporate capital for losses suffered during the Sars-Cov-2 pandemic and the postponement of the deadline by which the loss must be reduced to less than one third of the corporate capital.
Are health emergencies, mandatory shutdown and economic crisis enough to suspend rent payments?
The government’s social distancing measures adopted to contain the spread of the SARS-Cov2/CoViD-19 pandemic have generated a fervent debate among legal experts as to whether it is possible to resort to general principles of law to mitigate the economic impact on tenants.
Italy – Product liability: important decision of the Milan Courts on defective medical devices
The protection of consumers damaged by defective products was introduced into the EU framework by Directive No. 374/1985/EEC (the "Directive") and implemented in Italy by Presidential Decree No. 224/1988, subsequently incorporated into Legislative Decree No. 206/2005 (the so called "Codice del Consumo", the "Code"). The Directive intervened to coordinate and harmonise national legislation and to avoid that the existing disparities among domestic regulations could adversely affect competition, thus jeopardising the free circulation of goods within the common market.
Green-light for the "revolving pledge" on agricultural and food products
On August 29, 2020, Decree July 23, 2020 was published in the Official Journal of the Italian Republic, on the establishment of the revolving pledge on agricultural and food products with a protected denomination of origin and a protected geographical indication, by way of implementation of Sec. 78, Paragraphs 2-duodecies, 2-terdecies and 2-quaterdecies of Law April 24, 2020, n. 27 (so-called "Cura Italia").
CoViD-19 and new Italian Insolvency Code
As part of the measures aimed at containing the economic and financial consequences of the CoViD-19 pandemic, on April 8th, 2020 the Italian Government enacted the Law Decree No. 23 (the "Decree"), whose Sec. 5 postpones the effective date of the new insolvency code (i.e. Legislative Decree No. 14, dated January 12, 2019, the "Insolvency Code") from August 15th, 2020 to September 1st, 2021.
I&W Insurance Policies and IVASS Regulation No. 29/2009
Following a series of requests for clarification submitted by market operators, on July 25th, 2019, the Italian Insurance Supervisory Authority (IVASS) issued a statement aimed at defining the relationship between Sec. 4, Par. 2 of the IVASS Regulation No. 29/2009 and Indemnities & Warranties Insurance Policies ("I&W Insurance Policies").
Anti-Dilution Clauses – Recent Opinion of the Notarial District Council of Milan
By Position Paper No. 186 dated Dec. 3, 2019, the Notarial District Council of Milan confirmed the validity of such anti-dilution clauses embodied in Articles of Association to provide for the gratuitous allocation of a certain number of newly issued shares to one or more identified shareholders for the case of future capital increases with a subscription price-per-share below a predetermined threshold.
New thresholds and requirements for the mandatory appointment of supervisory bodies or auditors in Italian limited liability companies
On June 17, 2019, the Italian Parliament passed Law No. 55/2019 (“Law”), thus amending and supplementing – in addition to those amendments provided for by the previous Legislative Decree No. 14/2019 – the audit and control statutory framework applicable to Italian limited liability companies.
EU Directive on unfair trading practices in the agricultural and food supply chain
On April 17, 2019, the European Parliament and the Council enacted the Directive No. 2019/633 ("Directive") on unfair trading practices in business-to-business relationships in the agricultural and food supply chain.
A look into the future: Blockchain Technologies and Smart Contracts
On February 11, 2019, the Italian Parliament enacted the Law No. 12/2019 ("Law") introducing – for the first time ever in the Italian statutory framework – a legal definition of "blockchain technologies" ("tecnologie basate su registri distribuiti") and "smart contracts".
EU Directive on Copyright in the Digital Single Market
On March 26, 2019, the European Parliament approved the Directive on Copyright in the Digital Single Market – No. 2016/0280 (COD) – (“Directive”) amending and supplementing the previous Directives No. 96/9/CE and No. 2001/29/CE.
Conclusion of First Round of NAFTA Renegotiation
On August 16, 2017, teams from the United States of America, Canada and México launched negotiations seeking to modernize the North American Free Trade Agreement (NAFTA).
The recently implemented Sistema Nacional Anticorrupción
Mexico has recently implemented the Sistema Nacional Anticorrupción (the “National Anti-Corruption System”) by the introduction of certain legal solutions to prevent bribery and corruption both in public bodies and corporations, following the trend of other countries’ legal systems.
Reform of anti-money laundering regulation
Italy has recently implemented the EU Directive no. 2015/849 (IV Anti-Money Laundering Directive) on the prevention of the use of the financial system for the purposes of money laundering or terrorism financing and has accordingly reformed the existing regulation (Legislative Decree no. 231/2007) by the Legislative Decree no. 90 dated May 25, 2017, approved by the Italian Government on May 24 and published on June 19, 2017, in the Gazzetta Ufficiale no. 14, whose relevant provisions came into force on 4 July.
"Fitness Check" of EU Consumer and Marketing Rules
On 29 May 2017, the European Commission published the results of the fitness check of EU consumer and marketing rules. Fitness Checks are comprehensive evaluations aimed at assessing whether the regulatory framework for a particular policy sector is “fit for purpose” and provide an evidence-based critical analysis of whether EU actions are proportionate to their objectives.
Directors’ liability
In April 2017, Italian Supreme Court, through three decisions, has rewritten certain rules and principles governing directors' liability.
New ICC Arbitration Rules
In October 2016 the International Chamber of Commerce ("ICC") passed a revision of its 2012 arbitration rules, aimed at increasing the efficiency and transparency of ICC arbitrations.
The new rules, entered in force on March 1, 2017, will apply to any proceedings commencing after 1 March 2017.
Attachment of director’s remuneration
The Sezioni Unite (plenary session) of the Supreme Court has recently affirmed, in the decision No. 1545/2017, dated January 20, 2017, that director's remuneration may be attached in full and not by 20% as established by Law with respect to salary of employment relationships.
Changes in the PASE (Portal de Pagos y Servicios Electrónicos - Electronic Payment and Services Portal) of IMPI (Instituto Mexicano de la Propiedad Industrial – the Mexican Institute of Intellectual Property)
According to the new rules, concerning the submission and processing of applications submitted through the PASE, and the electronic notifications, as of February 1, 2017, trademark applications and commercial notices filed online will be processed, through PASE.
Sale of a business unit as an ongoing concern
Art. 2112 of Italian Civil Code, on the sale of a business unit as an ongoing concern applies only when the parties agreed to transfer and assign to the purchaser the employees of the branch together with those essential assets belonging to the business unit and required to not impair the ability of the same to continue its operation.
European Account Preservation Orders
As of January 18 2017, a new procedure which will make cross border debt recovery easier is available in the EU territory.