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Briefings in English - 2008

Lehman Brothers – derivative contracts

The motion described in this briefing should be of particular interest to clients that are party to a derivative contract with a Lehman US entity, and the Lehman entity is in the money. The motion, if approved by the US Bankruptcy Court, would give the Lehman entity the right to assign the derivative contract to a third party in circumstances where the Lehman entity does not have the unilateral right to assign under the derivative contract. (December 2008)

U.S. economic sanctions compliance for non-U.S. firms

The Office of Foreign Assets Control (OFAC) is the primary U.S. agency responsible for the administration of U.S. economic sanctions against designated non-U.S. countries, governments and persons. This client briefing describes how these sanctions affect non-U.S. firms. (December 2008)

Final regulations governing US national security reviews issued

On November 14, 2008, the US Department of the Treasury released final revised regulations governing the national security review of transactions undertaken by the Committee on Foreign Investment in the United States under the Exon-Florio Act.

IRS and U.S. Treasury guidance in response to the downturn

The U.S. Internal Revenue Service (IRS) and Treasury Department have responded to the U.S. and global downturn by issuing guidance and proposed regulations. Information correct as of November 5, 2008. (November 2008)

Treatment of infrastructure improvements under FIRPTA

On October 30, 2008, the U.S. Internal Revenue Service gave notice that it proposes issuing regulations treating a governmental permit to lease, own or use a toll road, toll bridge or other infrastructure project (such as a concession agreement) as an interest in U.S. real property subject to U.S. tax under the Foreign Investment in Real Property Tax Act. The notice itself and the regulations if proposed will significantly affect non-U.S. investors’ approach to U.S. infrastructure projects. Comments on the proposed rulemaking are due by January 29. (November 2008)

Proposed changes to the US national security review of transactions

The US Treasury Department recently issued proposed regulations completely updating and revising the existing regulations originally issued under Exon-Florio, which provides for national security review of foreign investments in the US. The proposal to some extent seeks to memorialise certain existing practices but also underscores the breadth of transactions potentially reviewable and the considerable amount of information required to be supplied as part of the review process. (May 2008)

Claims co-operation clauses – notification of claims

The Court of Appeal has recently overturned the first instance decision of Mr Justice Morison in AIG v Faraday (2006). The decision has important ramifications for reinsurers considering the type of claims co-operation clauses to include in their policies, and contains key clarification of the effect of the previous Court of Appeal decision in Royal & Sun Alliance v Dornoch (2005). (January 2008)

President Bush issues changes to the Exon-Florio U.S. national security review process

President Bush has issued an Executive Order laying the groundwork for the implementation of changes to the U.S. national security review process called for by legislation enacted by Congress last year. It is expected that the Committee on Foreign Investment in the United States soon will issue proposed changes to the relevant regulations governing the review process. (January 2008)

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