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Increase in share capital (reserved to employees)

The French Supreme Court related to private matters (Cour de cassation) ruled as a ratio decidendi on 28 November 2018 that the single vote on the resolution related to an increase in share capital reserved to employees is considered satisfactory to regularize an increase in share capital not subject to a vote on a preceding general meeting. This allows the possibility for a general meeting to ratify an increase in share capital reserved to employees (due to the relativity of the nullity – nullité relative) and is in line with the spirit of company law to allow ratification as much as possible to ensure legal safety.

Up to date 28 November 2018

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Corporate law (exclusion of partners)

The current situation of partners of limited liability companies carrying on a civil professional purpose (SEL – Société d’Exercice Libéral) is protected by law and the constitutive documents. This is due to the fact that they have to be protected as they are running the business activity. This is particularly the case in the event of exclusion of partners, when a decision is made to exclude a partner from the company.

In this respect, Article R.4381-16 of the French public health Code (Code de la Santé publique) states that a partner practicing within the company can be excluded when (i) he is prohibited from practicing or providing care to covered parties for a period equal to three months or (ii) the said partner contravenes operating rules of the company.

Article R.4381-16 of the French public health Code gives guarantees as to the exclusion decision: no exclusion decision can be taken if the partner was not legally convened and if he has not been in the position to plead his case on specific facts for which he was charged.

However, as to the voting process, Article R.4381-16 of the French public health Code states that the decision of the partners to exclude a partner is taken on the reinforced majority calculated excluding not only the vote of (i) the partners having been sanctioned for the same facts or related facts but also (i) the concerned partner (unanimity of other partners practicing within the company and entitled to vote having as well to be obtained).

The fact that the concerned partner does not take part to the vote is not in line with the ratio decidendi of the Cour de cassation (i.e. com. 9 July 2013) and the challenged provision is deemed not to have been written. Such a provision may as well be considered in breach of the ECHR (European Convention on Human Rights), in this particular case of Article 6 (right of a fair trial) or of Article 13 (right of an effective remedy).

The business activity is also protected in the event of temporary prohibition from practicing or providing care to covered parties (Article R.4381-16). In this perspective, provided that the partner is not excluded, the person concerned keeps his partners’ rights and duties, to the exclusion of the remuneration linked to his professional activity (Article R.4381-17).

This protection is crucial to ensure management stability, legal safety and thus, to foster business activity.

Up to date 17 August 2018

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Trademark Registration Process in Nigeria

1. Trademark Search

Trademark search is conducted with the name of the trademark and its logo. The search report shall disclose marks which are close to the proposed mark and its class. This will make the trademark agent ascertain whether the mark will be accepted for publication or not.

Trademark search takes a period of 24-72 hours (1-3 business days).

2. Application Process

The application process is commenced by Form 1 (authorization of agent) in form of a simple Power of Attorney; and Form 2 (details of the applicant) which includes the name and address of the company who owns the mark. Classification of goods and services for trademark registration are as stipulated in the Nice Agreement.

A trademark must contain or consist of at least the name of a company, individual, or firm, represented in a special or particular manner; the signature of the applicant for registration or some predecessor in his business; an invented word or invented words; a word or words having no direct reference to the character or quality of the goods, and not being according to its ordinary geographical name or a surname; or any other distinctive mark.

Registration of trademark in Nigeria is effected at the Trademark, Patents and Designs Registry, Commercial Law Department, Federal Ministry of Industry, Trade and Investment, Area 1, Garki, Abuja-Federal Capital Territory (“the Trademark Registry”).

The duration for registration of marks in Nigeria is usually a period of 3-4 calendar months.

3. Notices from the Trademark Registry

After filing, the Trademark Registry would issue an Acknowledgment Letter, acknowledging receipt of the mark and soon after an Acceptance Letter which indicates that the mark has been accepted for publication. The mark would be published in the Trademark Journal which is published quarterly and a Trademark Certificate issued.

4. Response to Official Refusal

If a mark is submitted for registration and the Trademark Registry finds that it infringes another mark or it is not distinct, the Registry will issue a Notice of Refusal instead of an Acceptance Letter. The Agent or Attorney of the applicant shall appeal to the Trademark Registrar stating cogent reasons why the mark should be registered and published. The Examiner will examine the appeal and if convinced with the Agent’s or Attorney’s reasons, the mark will be accepted for publication (“the Examiner’s proceedings”). If the Examiner is not convinced with the reasons, a Notice of Refusal will be reissued and the applicant will have to change the mark.

Where a mark has been published, an Attorney of the owner of the mark may by a Declaration before a Trademark Tribunal, state that a published mark infringes an existing mark of the owner. The Attorney of the owner of the published mark which is alleged to have infringed an existing mark shall file a Counter Statement and Exhibits disputing facts stated in the Declaration. The Trademark Tribunal will fix a date for oral hearing before making a decision (“the Trademark Tribunal proceedings”).

Both the Examiner’s proceedings and the Trademark Tribunal proceedings take a period of 3 calendar months respectively.

5. Renewal

Trademark registration in Nigeria is renewed after a period of 7 years.

Trademark is renewed by filing Form 12 showing the name of the applicant, the mark and its class as well as the Trademark Certificate number.

The renewal process takes a period of 1-2 calendar months.

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Contracts which became impossible in Hungarian construction

In construction industry contracts cannot be performed according to the intentions of the parties in each case. It means that the parties cannot fulfil their duties. In the practice of our Legal Partnership we usually meet cases in which the performance of the contracts became impossible or one of the parties referred to it. We can talk about the impossibility of the performance if the reason of the impossibility has been originated after the conclusion of the contract. According to Hungarian law and Hungarian judicial practice, the impossibility of performance can be physical impossibility, legal impossibility or impossibility of the interests. The latter type of impossibility of performance is accepted only in very special cases by Hungarian courts.

If performance has become impossible for a reason attributable to one of the parties, the other party shall be relieved from the obligation of contractual performance and may demand damages for the loss caused by non-performance of an obligation. If performance has become impossible for a reason attributable to both parties, the contract shall be terminated and the parties may demand damages from each other in the proportion of their interaction. According to the general rule of the Hungarian Civil Code, if performance has become impossible for a reason that cannot be attributed to either of the parties, the monetary value of the services provided before the time when the contract was terminated shall be compensated. It is important to know that the last general rules cannot be applied in case of contracts for professional services.

In case of contracts for professional services special rules shall be applied and in this case also other circumstances shall be respected in connection with the application of the legal consequences of impossibility of contractual performance. According to these special rules, if performance has become impossible for a reason that cannot be attributed to either party and the cause of impossibility has occurred within the control of the contractor, he shall not be entitled to demand remuneration. If the cause of impossibility has occurred within the control of customer, the contractor shall be entitled to remuneration, but the customer shall be entitled to deduct the amount that the contractor had saved or could, without great difficulty, have earned elsewhere in the time gained. If the cause of impossibility has occurred within or beyond the control of both parties, the contractor shall be entitled to a proportionate amount of the remuneration for the work done and for his expenses.

According to our experience, if we meet an impossibility of performance in a construction contract which cannot be attributed to either of the parties, we have to consider circumspectly within which party’s control the impossibility of performance has occurred. Finally, I would like to remark that the category “within the control of the party” and legal consequences of the impossibility of performance were known and applied also by Roman Law.

Dr. Tamás BALÁZS
Attorney at law
Managing Partner

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TSF Consultants appoint experienced new advisor

TSF Consultants, the UK’s leading provider of independent mental capacity assessments to the legal sector, are pleased to announce the appointment of their new advisor.

With over 25 years of key involvement at Board Level, Jeremy Nottingham is set to bring extensive knowledge and expertise to the role, with his past experience spanning a range of different industries.

Working in multiple sectors has enabled Jeremy to build a diverse awareness and understanding of different business environments, allowing him to provide a fresh practical perspective within the context of TSF. Throughout his career, Jeremy has set out to prioritise the specific vision of the company he supports, bringing strategic oversight across the range of core business functions.

Jeremy has a particularly high level of experience working with and developing SMEs, having played a key role as an early stage director and founder of companies ranked within the top 20 of the Sunday Times Fastest Growing Privately Owned UK Company List.

In addition to his comprehensive business experience, Jeremy is a founder of a charity, as well as an ambassador and trustee for charities operating in both the UK and sub Saharan Africa.

Jeremy joins TSF at a key point of expansion; as well as supporting the direction of development, his appointment coincides with ambitious plans to scale the business, whilst solidifying the company’s reputation for both care and quality.

He is also no stranger to TSF; having coached and mentored founder Tim Farmer, Jeremy has a core understanding of the business which is set to underpin his vision for progress.

Commenting on the appointment, Founder of TSF Consultants Tim Farmer said: “It’s been great to have been coached by Jeremy for the last 4 years, his knowledge and insight into building and sustaining small and medium-sized companies has been invaluable. His ethos matches TSF’s exactly and to now have him join as an advisor at this exciting stage in our growth, provides great confidence for the future.”

Jeremy said: “I have admired the ethos of TSF from the moment I first met Tim. I love their compassion and concern for clients, deep expertise and insight which they bring to their work and their commitment to growing and develop the TSF team, both frontline and support. It’s an exciting time to be joining the TSF team and I look forward to supporting the business to grow ambitiously and sustainably, set and raise quality standards across the industry, be innovative in our service delivery, whilst retaining the ethos that puts the client front and centre of our efforts.”