Lydian s Legal Update Webinar. 12 December Brussels

Transcription

1 Lydian s Legal Update Webinar 12 December Brussels

2 Introduction Welcome to Lydian s Legal Update Webinar. This webinar is the last in a series of four this year. In order to guarantee the audio quality, you are all on listen onlymode. Should you have questions during the webinar, please do not hesitate to use the Questions tool Menu Go To Webinar. At the end of the presentation we will deal with your most common questions. 2

3 Agenda Sales representatives: some recent case law Employment team The Constitutional Court of 7 November 2013 annuls important parts of the Decree on Land and Building Policy: the end of the social contribution for developers in housing construction projects? Real Estate team Anti-money laundering for lawyers Corporate team New Belgian Arbitration Act Dispute Resolution team 3

4 Sales representatives some recent case law An Van Doorselaer Associate Employment team E an.vandoorselaer@lydian.be

5 Sales representatives some recent case law A sales representative is an employee who: as his/her main obligation searches for and visits clientele outside of the company premises to negotiate and/or close contracts in the name of and for the employer (art. 88 ECA) Therefore, the following are NOT sales representatives: A seller of phone subscriptions at a supermarket stand, who only visits potential clients houses occasionally (Labour Court of Appeal Brussels, 16 November 2012) Director Strategic Partnership who mainly operates through and visits fairs, but not clients offices (Labour Court of Appeal Brussels, 7 December 2012) 5

6 Sales representatives some recent case law A qualification as a sales representative relevant for amongst other things the: Non-compete clause Clientele indemnity Non-compete clause: different rules (art. 104 ECA) Example: Employer is not required to pay a non-competition indemnity BUT if present, employee is assumed to have brought in clientele 6

7 Sales representatives some recent case law Clientele indemnity is due if: Sales representative brought in new clients Employment contract is terminated by employer without serious cause or by employee for serious cause Minimum seniority of one year exists The indemnity is not due if employer proves termination does not cause prejudice to the employee 7

8 Sales representatives some recent case law Clientele indemnity: Labour Court of Appeal Brussels, 2 November 2010 Employee sells glasses, has non-compete clause Can employer prove employee did not bring in new clientele or did not suffer prejudice due to dismissal? Employer cannot prove employee did not bring in new clientele (i.e. new clients or former clients); a decrease in business numbers not sufficient Employer cannot prove employee suffered no prejudice: employee working for competitor and being able to visit the same clients is not sufficient Clientele indemnity due 8

9 Sales representatives some recent case law Clientele indemnity: Labour Court of Appeal Mons, 11 April 2013 Sales representative in real estate sector with no non-compete clause Can sales representative prove he brought in clientele? Did not bring in clientele, as this must imply significant possibility of future orders -> people who sell their houses are not loyal clients who renew contract real estate agency No clientele indemnity due 9

10 The Constitutional Court of 7 November 2013 annuls important parts of the Decree on Land and Building Policy: the end of the social contribution for developers in housing construction projects? Daphné Verbauwhede Associate Real Estate team E daphne.verbauwhede@lydian.be

11 On 7 November 2013, the Constitutional Court nullified important parts of the Decree on Land and Building Policy Two judgments by the Constitutional Court regarding the decree by the Flemish Region dated 27 March 2009 concerning the Land and Building Policy ( decreet Grond- en Pandenbeleid ): 1) Judgment dated 7 November 2013 no. 144/2013 concerning the regulations with regards to living in your own region ( wonen in eigen streek ) 2) Judgment dated 7 November 2013 no. 145/2013 concerning the regulations with regards to the social contributions for the implementation of a social housing policy 11

12 On 7 November 2013, the Constitutional Court nullified important parts of the Decree on Land and Building Policy 1) Judgment dated 7 November 2013 no. 144/2013 concerning the regulations with regards to living in your own region ( wonen in eigen streek ) What do these regulations imply? Objective: the regulation imply that houses in certain municipalities, which have experienced a strong and substantial immigration, are to be reserved for municipalities own inhabitants. Consequence: specific conditions to be complied with in case of a transfer of title of certain lots and buildings constructed on them. Condition: the existence of an adequate bond between the person acquiring the property and the municipality in which the property is situated. European Court of Justice dated 8 May 2013 The regulations violate several fundamental rights, such as freedom of movement and establishment, the free rendering of services and the free movement of capital. 12

13 On 7 November 2013, the Constitutional Court nullified important parts of the Decree on Land and Building Policy Constitutional Court decision of 7 November 2013 The regulations conflict with several fundamental rights Conditions of the Decree are increasingly less compatible with the original objective of protecting the less-wealthy people when entering the real estate market. There exist less limiting and less discretionary measures to reach the objectives set out in the Decree (e.g. subsidies). Consequence: the regulations with regards to living in your own region are to be nullified in its entirety. This nullification has a retroactive effect, despite the request of the Flemish Government to mitigate the nullification 13

14 On 7 November 2013, the Constitutional Court nullified important parts of the Decree on Land and Building Policy 2) Judgment dated 7 November 2013 nr. 145/2013 concerning the regulations with regards to the social contributions for the implementation of a social housing policy In case of construction or subdivision projects of a certain dimension, the principal or developer is obliged to reserve a certain percentage of the houses or lots for social ends (this is the so-called social contribution ). To compensate the principal or developer, the decree sets out a number of tax incentives and subsidy mechanisms. Constitutional court These compensation measures can be considered as state aid, meaning that these measures require prior notification to the European Commission These measures are thus to be nullified Because of that, private actors are subject to this social contribution without any form of compensation Such social contributions is not consistent with the objective to implement a social housing policy 14

15 On 7 November 2013, the Constitutional Court nullified important parts of the Decree on Land and Building Policy This nullification has a retroactive effect as well, despite the request of the Flemish Government to mitigate the nullification. All projects developed in accordance with the Decree on Land and Building Policy are hereby affected. A tricky situation: the Constitutional Court nullifies the compensation measures, but it does not explicitly nullify the social contribution. Consequence: it is unclear how this social contribution is to be implemented and realized. An initiative by the Flemish Government or Flemish Parliament is required! 15

16 Anti-money laundering for lawyers Michaël Zadworny Associate Corporate team E michael.zadworny@lydian.be

17 Concept of Money Laundering The conversion or transfer of money or assets in order to hide or disguise their illegal origin or to help those involved in the realisation of a criminal act from where the money or assets come to avoid the legal consequences of their acts. Hiding or disguising the nature, the origin, the place, the arrangement, the movement, or the ownership of the money or the assets of which the illegal origin is known. Acquisition, detention, use of money or assets of which the illegal origin is known. Involvement in one of the acts described above (in the first three items), (tentative) collaboration in committing such act, to help or incite or advise someone to commit one of these acts or to ease its execution. 17

18 Legislative framework and scope of application for lawyers Repressive article 505 Criminal Code unlimited application and criminal sanctions Preventive limited application ( e.g. terrorism; illegal drug/weapon traffic; serious tax fraud) and only administrative fines specific restrictions for lawyers due to professional secrecy (e.g. defending or representing client in litigation) Scope of application for lawyers participating in the act for and on behalf of his client in any financial or real estate transaction buying and selling of real property or business entities managing of client money, securities or other assets opening or managing bank, savings or securities accounts organising monetary contributions that are necessary for the creation, operation or management of companies creating, operating or managing of companies, trusts or similare entities 18

19 Legal requirements Identification of clients Ongoing monitoring Retention of documents (five years) Training of personnel Reporting to the President of the Bar 19

20 Prohibition on disclosure and immunity It is prohibited to inform the client or any third party that a report was made to the Financial Intelligence Unit or that a criminal investigation relating to money laundering is taking place. When a suspicious transaction is being reported, the lawyer must stop working for the client. Reporting in good faith of a suspicious transaction will provide immunity for all civil, criminal or disciplinary claims, and no professional sanctions can be imposed on the lawyer. 20

21 Supervision and sanctions Supervision External supervision by: Commission de contrôle or President of the Bar (OBFG) The local Bars of the OVB Investigations are conducted upon the request of the President of the Bar or the CTIF/CFI, or by random selection Sanctions Disciplinary sanctions Administrative fines of between EUR 250 and EUR

22 New Belgian Arbitration Act Marijn De Ruysscher Associate Dispute Resolution team E marijn.deruysscher@lydian.be

23 What is arbitration? Alternative Dispute Resolution Solving disputes through a private dispute resolution mechanism court proceedings Ad Hoc or institutional arbitration (ICC, CEPANI, ) Arbitral awards can be enforced like court decisions Arbitration proceedings are always linked to a certain country (= place of arbitration) and governed by that country s arbitration law 23

24 New, modern Belgian Arbitration Act No modification, but completely new Act (Part VI of the Judicial Code) Based on the UNCITRAL Model Law (= modernization and harmonization) with some Belgian accents Goal = strengthening Belgium s position as centre for national and international arbitration Entry into force: 1 September 2013 for all new arbitration proceedings as from that date; pending arbitration proceedings remain governed by former Arbitration Act 24

25 Highlights New criterion for arbitrability: (i) any pecuniary claim, or (ii) any non-pecuniary claim with regard to which a settlement may be made Electronic communication: confirmation of existing practice Contractual challenge procedure: expressly allowed to avoid courts judging otherwise 25

26 Highlights Modified setting aside proceedings No longer possibility for appeal (avoid judicial backlog) Only five courts of first instance have jurisdiction (specialization) Certain grounds for setting aside have been removed (such as those relating to certain formalities and conflicting reasoning ) One standardized delay: three months after receiving the award 26

27 Highlights Remittance of the arbitral award to the arbitral tribunal Possibility for the court deciding on the setting aside of an arbitral award Objective = to save an arbitral award when such possibility exists by sending the arbitral award back to the arbitral tribunal allowing it to remove grounds for setting aside In line with new CEPANI Arbitration Rules Experience from other Model Law countries: courts are reluctant to use this option 27

28 Thank you for your attention. Q&A 28