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Dentons launches combination with Rattagan Macchiavello Arocena

Dentons has launched its combination with Rattagan Macchiavello Arocena, a leader in the Argentine legal market, positioning Dentons as the largest global law firm in the country. In Argentina, the office will be branded as Dentons Rattagan Macchiavello Arocena. Dentons now has more offices in all of Latin America and the Caribbean than any other law firm, making it the first truly Pan-Latin American and the Caribbean law firm.

“Dentons’ launch in Argentina enables us to meet client needs in another priority market for our clients,” said Elliott Portnoy, Global CEO of Dentons. “We can now connect our clients to our leading talent at Dentons Rattagan Macchiavello Arocena as well to our 19,000+ people in 183 locations and 75 countries around the globe.”

“Dentons’ polycentric strategy has seen the Firm scale its presence to 24 countries across the Latin America and the Caribbean region,” said Joe Andrew, Global Chairman of Dentons. “Despite the current challenges created by Covid-19, Dentons continues to execute its strategy to scale the firm through virtual combinations with leading law firms like Rattagan Macchiavello Arocena and is now present in virtually all of Latin America and the Caribbean.”

“Since entering the region in 2016, Dentons has combined with elite firms across Latin America and the Caribbean,” said Jorge Alers, Latin America and the Caribbean Region CEO of Dentons. “Argentina has a number of exceptional legal service providers, but Rattagan Macchiavello Arocena stood out for its leadership and innovative and forward-looking thinking. This new launch means we can now connect clients to market-leading talent in Argentina and the whole of the Americas.”

Less than 15 years since its foundation, Rattagan Macchiavello Arocena became a highly recognised leader in practice areas such as Corporate and M&A, Energy, Environment and Natural Resources, Banking and Finance, Compliance and Anticorruption, Government Relations, Infrastructure, Labour Law, Litigation and Dispute Resolution, Pharmaceuticals and Tax.

“We are very proud and terribly excited with this distinction. As part of Dentons, our Buenos Aires office will now have at hand’s reach all of the knowledge, talent, best practices and state-of-the-art technology to better support our clients, allowing them to do business throughout Latin America and the Caribbean and, quite literally, in any other place of the world,” said Michael R. Rattagan, who in 2005 co-founded Rattagan Macchiavello Arocena.

So far in 2020, Dentons has launched Dentons Bingham Greenebaum and Dentons Cohen & Grigsby, the first step in forming a truly national law firm in the United States as part of Dentons’ “Project Golden Spike,” Dentons Kensington Swan in New Zealand, Dentons Lee in South Korea and Dentons Jiménez de Aréchaga in Uruguay, and opened an office in St. Lucia.

Hogan Lovells to refresh practice structures and leadership

Hogan Lovells is making a series of changes to its practice group structure and the leadership of its International Management Committee (IMC). The IMC is the body that is responsible for setting and implementing the strategic direction and business operations of the firm and is made up of the heads of Hogan Lovells’ practice groups and administrative regions plus clients and markets.

These changes take effect from 1 July 2020 under the leadership of the new incoming CEO Miguel Zaldivar and Deputy CEO Michael Davison.

According to Miguel Zaldivar: “We are uniquely placed as a fully-integrated global firm. We have a high-quality business, great clients, genuine international reach, and extremely talented people. The combination of our industry sector knowledge and our market-leading position at the meeting point between business and government is admired by clients and competitors alike. These are the strengths on which we are building our firm.”

“I set out my priorities in December as being: client service; investment in our key markets; incentivising even more collaboration across the partnership; managing our profitability; and supporting citizenship, diversity & inclusion, and sustainability. The changes to our structures help achieve those priorities by bringing increased speed and efficiency to our management decision-making, continuing the work which Steve Immelt started in 2014 in moving from co-leaders to single leaders.”

The firm’s practice groups will shift from five to three. The Corporate and Finance practice groups will be combined to create a new Corporate and Finance practice made up of around 400 partners. Hogan Lovells will also more closely align its Global Regulatory and IPMT practice groups and put them together under one umbrella, Global Regulatory and IPMT, comprising around 230 partners.

Commenting on these changes Miguel Zaldivar said: “There is already a significant amount of overlap between Corporate and Finance, particularly in the capital markets space as well as in areas such as joint ventures, M&A, and commercial work. Bringing them together creates a powerful force for our clients. With Global Regulatory and IPMT there are already synergies between them in areas such as privacy and cyber-security; pharmaceutical and technology patent litigation; and antitrust investigations. Both are also top-rated practices groups in their own right in the market and we will protect those positions in terms of how we go to market.”

The firm’s regions will also shift from five to three. The firm’s current Americas and D.C. regions will be combined into a single region. The firm is also creating a single Europe, Middle East, and Africa (EMEA) region which combines its existing UK and Africa region with Continental Europe and its offices in the Middle East. The current Asia Pacific and Middle East region will focus on the emergent markets of Southeast Asia as well as the established economies of Australia, Greater China, and Japan.

Zaldivar commented: “Having a ‘One Americas’ region will enable us to more easily take a holistic and integrated approach to sharing clients, work, investments, and resources.

We have already adopted the same approach very successfully with our offices in Germany and Greater China. Having a single EMEA region is an approach taken by many of our clients and competitors, and reflective of the economic and social ties in that part of the world as well as time zone and geographical proximity.”

He continued: “I have tried to ensure continuity of leadership while prioritising bringing on a new and diverse generation of leaders.”

Zaldivar said: “The UK and Washington, D.C. offices will continue to have participation in IMC discussions where relevant and, with Stefan Schuppert also attending IMC meetings by invitation, we are now adding Germany, given the importance of that market to the firm.”

“Susan Bright, Eve Howard, and Cole Finegan will be stepping down from the IMC after many years of hard work and significant contributions to the firm. We all owe them a huge debt of gratitude in managing very important regions through some of our strongest and most successful years as well some uniquely challenging times.”

Susan will take on a new responsibility as Global Managing Partner for Diversity and Inclusion and Responsible Business. In addition she will continue to act as the OMP for the UK until the end of the year. This is in order to ensure a smooth transition to accommodate Penny Angell’s current intense workload advising lenders on financing’s impacted by COVID-19. Eve Howard will serve as Global Head of our combined Capital Markets practice. Cole Finegan will continue serving as office managing partner of the Denver office and support the expansion efforts of the Government Relations and Public Affairs practice in the Americas.

Rights and Liberties, Liability of the French State and Judicial Review

On 24 December 2019 the Conseil d’Etat ruled that indemnification can be granted under French law on the ground of a prejudice suffered due to the application of a law ruled contrary to the Constitution by the Conseil Constitutionnel.

The Conseil d’Etat now leaves the door open to a new possibility for indemnification, within the framework of a QPC examination (Question Prioritaire de Constitutionnalité) or by application of Article 61 of the Constitution (subject to conditions). Based on the hierarchy of norms, this new kind of liability of the State is stated in three decisions dated 24 December 2019 (req. N°425981, N° 425983 and N°428162).

This new regime lives now next to the already existing liability due to the application of the law (responsabilité du fait des lois) based on equal treatment before public burdens (principe d’égalité des usagers devant les charges publiques).

A QPC is a question raised by a tribunal or a court aiming at determining the conformity of a law to the Constitution. Article 61-1 of the French Constitution states in this respect that during an instance before a tribunal or a court (private or public), a plaintiff can support the view that a law contravenes rights and liberties guaranteed by the French Constitution. In such a situation, the Conseil Constitutionnel can be seized after remand of the case by the Conseil d’Etat or the Cour de Cassation.

The general principle under French administrative law is that the French State can be sued simply because of the application of a law, provided that (i) the plaintiff has suffered a prejudice qualifying as important and specific (grave et special) and (ii) the law in question does not exclude the possibility for a plaintiff to be indemnified. This type of liability is applicable even if the French State is not considered as being in default with the application of the law and is named liability without misconduct (responsabilité sans faute de l’administration).

This possibility started in France at the beginning of the 20th century (Conseil d’Etat, case Couitéas – 1923), with the admission of liability without misconduct of the French State due to an administrative decision of non-enforcement of judicial decisions. In such a case, in the general interest, the French State may decide not to enforce a judicial decision, but in turn, has to indemnify the plaintiff. The ground for indemnification is the breach of equal treatment before public burdens principle (principe d’égalité des usagers devant les charges publiques). This principle is taken from the French 1789 declaration of the human rights and the citizen: each member of the community has to bear a certain amount of public burdens, but equal treatment shall prevail.

This principle has expanded thereafter with the admission of such a claim against a law (and not against an administrative decision only) by the Conseil d’Etat in 1938 (Conseil d’Etat, case Société la Fleurette – 1938). Such a case establishes that, in the silence of the said law, a plaintiff shall not bear a charge created by a law that he/she would not normally lie with, it being specified that, in the event of silence of the said law, such law shall not be considered as excluding the liability of the French State (Conseil d’Etat case Coopérative Agricole Ax’ion – 2005).

The liability of the French State can also be triggered due to its obligations to ensure the application of its international conventions, to indemnify all the prejudices resulting from the application of a law passed illegally because contrary to an international convention (e.g. ECHR) (Conseil d’Etat, case Gardelieu – 2007).

Now, according to the new decisions of the French Conseil d’Etat dated 24 December 2019, the other grounds for indemnification are (1) that the decision of the Conseil Constitutionnel does not decide that no indemnification shall be granted either (i) by excluding it expressly or (ii) by letting alive all or only a part of pecuniary effects caused by the law, that an indemnification would challenge, (2) the existence of a prejudice and (3) the link between the prejudice and the unconstitutional application of the law.

As a consequence, a plaintiff may be indemnified in the following conditions : (i) no express exclusion of indemnification by the Conseil Constitutionnel (ii) no all or part of pecuniary effects left alive by the Conseil Constitutionnel that an indemnification would challenge (iii) and (iv) a link between the prejudice and the unconstitutional application of the law.

According to the decision of the Conseil d’Etat, certain pecuniary effects of the law declared unconstitutional may prevail upon an indemnification. In this respect, it is reasonable to think that an administrative judge would apply an economic balance check between the necessity of indemnifying the plaintiff and the profit of letting alive all or only a part of pecuniary effects caused by the unconstitutional law. An economic balance check is already applied in other circumstances (expropriation with the application of the théorie du bilan coûts / avantages), by the Conseil d’Etat (Conseil d’Etat case Ville Nouvelle Est – 1971).

In this perspective, it is reasonable to think that the application of an unconstitutional law may survive if it is more interesting from an economic point of view. This mentioned carve out is quite important as it gives the possibility to the Conseil Constitutionnel to let alive, even if the law is declared unconstitutional, and then cancelled, parts of its pecuniary effects.

In addition to the breach of equal treatment before public burdens principle (principe d’égalité des usagers devant les charges publiques), it can be suggested that other principles may underpin this kind of liability: preservation of legal safety (sécurité juridique) and /or granted rights (préservation des droits acquis), and / or economic balance check, to take into account all the adverse financial effects that an indemnification would cause.

The claim for indemnification can obviously be barred by effluxion of time, it being specified that the 4 (four) years period during which such a claim can be brought only starts if the prejudice resulting from the application of the law may be known in its reality and its scope by the plaintiff, without the possibility for him or her to be regarded as ignoring the existence of his / her right to claim until the declaration of unconstitutionality.

The indemnification request has to be brought before the administrative judge (Tribunal Administratif). It remains however to be seen whether legal practitioners will try to use these decisions of the Conseil d’Etat to sue the French State before the judicial order (ordre judiciaire). Under French law, the French Conseil d’Etat is the highest court entitled to address administrative cases and is part of the administrative order (ordre administratif) whereas the judicial order (ordre judiciaire) is composed of judiciary tribunal and courts (jurisdictions judiciaires) and is competent for private matters. How dealing with the fact that a tribunal or a court may apply deliberately after the declaration of unconstitutionality a law previously declared unconstitutional outside the scope of the carve out of the ratio decidendi of the Conseil d’Etat? Would Article 141-1 of the Code de l’organisation judiciaire, which gives competence to the judicial order in the event of indemnification of a prejudice due to malfunction of judicial public service, apply? It is reasonable to think that such indemnification would not be allowed even if legal practitioners may wish to test it, and may be, open this possibility, for the residual adverse effects on the plaintiff of the law declared unconstitutional.

A lack of indemnification by the French State may also give rise to a lawsuit before the ECHR (European Convention on Human Rights), a plaintiff would still have in fine, the right to be indemnified on the basis of the application of a law declared unconstitutional. From a theoretical point of view, and on the basis of the hierarchy of norms, letting a country member of the European Council apply a law declared unconstitutional could raise issues.

Up to date 24 December 2019

Hogan Lovells advises Timberland Investment Resources Europe

Hogan Lovells has assisted Timberland Investment Resources Europe (TIR) in setting up its second investment vehicle in Luxembourg.

The firm helped TIR, one of the few private investment management firms that offers investment solutions in the forestry sector, to set up a Reserved Alternative Investment Fund (RAIF). The Hogan Lovells team advised on the initial structuring of the fund, including tax, through to the first closing of the fund, which occurred in January 2020 for circa EUR 75 million. The current target is to double this amount by the end of the year.

This fund is one of a few on both sides of the Atlantic investing in timberland and forestry assets.

This work shows the client’s continuous trust in Hogan Lovells. The firm previously advised TIR on the launch of their first Luxembourg fund (TIR Europe Forestry Fund) in 2016.

The Hogan Lovells Luxembourg team was led by Pierre Reuter (partner) and included Simon Recher (associate), Mathilde Soetens (trainee), with support from the London team led by Erik Jamieson (partner) and Ollie Phillips (associate). On the tax side, the team included Gérard Neiens (partner), Jean-Philippe Monmousseau (counsel), Pierre-Luc Wolff (senior associate), and Grâce Mfuakiadi (associate).

Linklaters triumphs at the City of London’s Clean City Awards

Linklaters has been awarded the Chairman’s Cup – the highest accolade – in the Large Site category, at the City of London Corporation’s Clean City Awards.

Now in its 25th year, the Clean City Awards Scheme promotes and rewards best practice in waste management by City of London businesses, recognising efforts and commitment to adopting sustainable waste management practices. This year, there were 107 entries from businesses across the City.

Linklaters received particular commendation for its “Ditch the Dispo” campaign, now in its fourth year, which has prevented one million sets of plastic cutlery from entering circulation since 2017, in addition to, 140,000 coffee cups and lids per annum since 2018.

Suzanne Roberts, Global Environment Practitioner at Linklaters, comments: “Linklaters is immensely proud of being recognised by the City of London Corporation as one of the trailblazers in implementing bold and successful waste minimisation initiatives.

We have continually challenged stakeholders to support new initiatives, the circular economy and minimise our environmental impacts. As a result, we have many well-established initiatives embedded in our work culture and continue to identify opportunities to reduce waste creation further.”

About Linklaters

Our clients want a law firm they can trust, one that stands out for a commitment to investing in them and empowering our teams. We want to stand out for our distinctive Linklaters mind-set so our clients want to work with us above all others.

Delivering excellent client service and using our global capabilities to help them pursue the right opportunities means they benefit from long and lasting relationships.

To put clients at the heart of all we do, we recruit and develop exceptional people empowering them to do and think differently. We serve our clients as a team, with a common focus on innovation, efficiency and agility.

New mandated health insurance law in Oman

The Capital Markets Authority (CMA) in Oman, the financial regulator, has released the new mandated medical insurance Law, Unified Health Insurance Policy and the Health Insurance Rules under Decision No.78/2019 through Resolution No 34/2019 – For the Issue of Unified Healthcare Insurance Policy Form.

The Health insurance market embraces itself for another mandated health insurance law in the Sultanate of Oman. Residents in Oman will be required to have in place a minimum level of medical insurance coverage with minimum benefits pursuant to the prescribed provisions of Resolution No. 34 of 2019 For the Issue of Unified Healthcare Insurance Policy Form, which was issued by the CMA as at 24 March 2019 and is now in force (“the Law”).

The application of the Law is relevant to the employer market and the beneficiaries arising from those relationships including employer, employee and dependents.

The Law applies and has adopted a “Basic Benefits” and “Optional Benefits” coverage, standard form “Policy Schedule” for parties’ signature and a standard “Insurance Application” for pre-contractual disclosure requirements.

Chapter One of the Law prescribes a “Unified Health Insurance Policy” (“the Policy”). Insured is defined as a “natural or unnatural person responsible to pay the insurance premium” and Beneficiary defined as “employee or employee dependent to whom the Insurer performs the duties assigned by the provisions of this Policy”. Dependents have been defined to include employee’s spouse, residing in Oman, children of the employee who are under 21 years age and any other person who resides in Oman and is dependent on the employee. This may include the employee’s parents/other relatives based in Oman, house help or maid who is sponsored by the employee.

The insurer has been defined as an “Insurance company licensed to practice health insurance business in the Sultanate” thereby clarifying that the Policy can’t be underwritten on a non-admitted basis by foreign insurers, which provides welcome clarity to the market.

The Policy must be completed and submitted by the Insured as a legal obligation. The Law, as currently prescribed, addresses application, coverage, mandatory minimum benefits and claims management.

Chapter Two is of interest, as the preamble defines a wide interpretation of what shall constitute the contract of health insurance, which includes all basic information, details and common practices in healthcare insurance contracts, etc. Insurers will need to take care of their pre-contractual documents, as these could for all intents and purposes unintentionally constitute the contract of insurance. Chapter Two further sets out the general terms and conditions, placing obligations on the insured to disclose correct and accurate information. The Code of Conduct for Insurance Business issued by the CMA requires insurers to inform insureds of their duty to disclose relevant information. Omani Law, therefore, applies the duty of utmost good faith (uberrimae fidei). Chapter Two also prescribes the excluded conditions from the coverage under the Policy.

The overall combined limit under the Policy is OR 4,500 in terms of financial spend, so surprisingly much lower than the UAE and KSA mandated schemes. Inpatient treatment limits for the policy year is capped at OMR 3,000 and includes usual basic cover, i.e. admission in hospital or daycare, cost of treatment, room cost, consultant fees, diagnosis and test, medicine, ambulance cost and companion cost, also including the cost for pre-existing and chronic conditions for in-patient treatment, while the latter is excluded for out-patient treatment.

Hospital admission under the Policy must be in a joint room and is limited to 30 days at each instance, whereas the ambulance cover is limited at OR 100 each trip. Outpatient treatment is limited to OR 500 for each policy year and the cover is limited to consultancy fees, diagnosis and tests, pharmacy fees and lab fees. Additionally, the Policy includes the cost of repatriating a deceased beneficiary to their country of origin, for which a limit of OR 1000 has been allocated.

Any departure from the basic benefits is not permitted unless agreed as a Schedule to the Policy and signed by both parties and should additional benefits be opted for by the insured, they must be set out in the Optional Benefit Schedule format provided in Appendix 3 to the Law.

The Law also sets out specific obligations on how it will be administered, some of which we set out below:

  • All Health Insurance Claim Management systems of the Providers must be compatible with the electronic claims system applicable in Oman;
  • Insurers will bear the cost of medical consultations only if there is prior referral from a licensed physician;
  • Providers must seek prior approval for all inpatient treatment and for all outpatient treatment where costs exceed OR 100, however in emergency cases treatment must start immediately;
  • For approvals, providers must upload all details in the online application and the insurer must respond within 30 minutes with a decision, failing which it will be deemed as approved;
  • Similarly, a Provider is also required to respond to any inquiries or observation by Insurer within 30 minutes of the inquiry/observation being made;
  • For all claims made outside the network, the Insured must make the claim within 120 days of the claim and insurer must compensate beneficiary within a period of 15 days of receiving documents in support of a claim; and
  • Whenever a claim is rejected by Insurer, the Insurer must provide to the Beneficiary, within 10 days of rejection, a written statement highlighting the reasons for which the claim is rejected.

Appendix 4 to the Law sets out the mandatory basic minimum coverage under the Policy, which provides two options to the Insured based on which premium will be determined by the Insurer. While both options have the same coverage terms and limits, the first option provides for deductibles on certain categories and the second option does not require deductibles to be paid by the beneficiary. The deductibles on the first option are limited to outpatient treatment only and are set at 10% for medicine, subject to the limit of OR 5 per visit and 15% for consultancy fees, diagnosis and lab fee for providers within network (with a cap of OR 20 per visit) and at 30% for Providers outside the network (with no cap!).

While the Middle East insurance market is to a large extent geared up for the new mandated health insurance requirements in Oman based on previous experiences with the KSA and UAE markets, they should no doubt see the opportunities for top over coverage in Oman given that the minimum coverage is very basic in nature (i.e. no maternity coverage offered as a minimum benefit). Of interest, Oman has not applied licensing for third party claims administrators at present, which also presents opportunities in this market.

We anticipate many questions and clarifications around the Law both from insurers, reinsurers, intermediaries, third party administrators, clinical providers, and others. BSA is well placed to provide support in this area with its expertise in health insurance laws and regulations and its Muscat law office.