Madrid 22-05-2013

ECIJA is pleased to announce that Gabriel Nadal, managing partner of ECIJA in Barcelona, and specialized in Corporate, M&A/ Restructuring and Insolvency practices has been named to the 2013 Who’s Who Legal in Insolvency and Restructuring.  Who's Who Legal, first published in 1996, seeks to identify the foremost legal practitioners in multiple areas of business law. In total, they recognize over 10,000 of the world's leading private practice lawyers from over 100 national jurisdictions and it has become the Strategic Research Partner of the American Bar Association Section of International Law.

Please read publication to Who’s Who here:

http://www.whoswholegal.com/profiles/41182/0/nadal/gabriel-nadal/

The results reflect again the commitment of ECIJA to constantly improving for its clients and the industries they work in. The firm's strategic sector focused approach is clearly reflected through an increased rank in five practice areas and first tier rank in TMT, where the firm is placed as a full-service.

The results reflect again the commitment of Ecija to constantly improving for its clients and industries they work in.  The firm's strategic sector focused approach is clearly reflected through an increased rank in five practice areas and first tier rank in TMT, where the firm is placed as a full-service.

• ECIJA among the Top 10 of Best business Law firms in the Spanish market and Top Tier Firm in TMT law (Technology, Media and Telecoms.) according to Chambers Europe 2013.
• ECIJA Best Firm in TMT of the Spanish market, selected among the best in IP, and leading firm in Corporate/M&A, Insolvency and Restructuring, Tax and Dispute Resolution, according to Legal 500 2013.
• ECIJA awarded as the Best TMT firm of the Year 2012 in Spain by Finance Monthly.
• ECIJA Best firm in TMT of the Spanish market according to Chambers Europe and Legal 500.
• ECIJA partners Hugo Écija, Juan Salmerón and Emilio Prieto, among the 9 Best Lawyers in TMT Law in the Spanish market, according to Chambers Europe 2013.
• Hugo Écija selected among the Best Intellectual and Media lawyers in Spain by Chambers Global and Best Lawyers 2013.
• Alejandro Touriño and Carlos Pérez, selected by Best Lawyers among 'The Best lawyers in Information Technology of the Year 2013 of Spain'.

CYBER ATTACK - IS YOUR BUSINESS PROTECTED?
30 April 2013

Introduction
From advertising and selling to communicating with customers, the internet provides UK businesses with a wealth of opportunities.  As a result, e-commerce has increased exponentially in recent years. A recent survey on security breaches carried out for the Department for Business, Innovation and Skills (2013 Information Security Breaches Survey) has revealed that cyber security threats to businesses have hit record levels – with smaller businesses now as exposed as larger organisations.

Increase in Cyber Attacks
The survey revealed a number of alarming findings, including:
• Over the past year several cyber attacks have caused over £1 million worth of damage each.
• 87% of small businesses experienced a security breach last year (10% increase on last year).
• 93% of large businesses were also targeted.
• The worst kind of security breach to small and large businesses cost between £35,000 - £65,000, and £450,000 - £850,000 respectively.
• Staff-related incidents have increased significantly.

Government Guidance Issued
In response, the UK government has published guidance (Small Businesses: What you need to know about Cyber Security) which provides a succinct overview of cyber security risks and how businesses can manage them to protect themselves.  As the guidance explains, small businesses can ensure they are protected by:
 Managing risk.
 Increasing staff awareness and providing training.
 Increasing network security and protection against malware.
 Providing guidance for businesses that outsource their IT services.

The guidance also refers to personal data, outlining that small businesses must know whether or not they need to comply with the Data Protection Act 1998 and, if so, have robust procedures in place to keep personal data safe.  By offering guidance it is clear that the UK Government is taking the issue of cyber security very seriously.  This is further highlighted by the fact that the Technology Strategy Board has extended a scheme allowing small and medium-sized enterprises (SMEs) to bid for up to £5,000 to improve cyber security.

"Recommended Reading" for Small Business Owners
The guidance has been described as "recommended reading" for all small business owners to raise awareness that protection against cyber attacks should become an integral part of the businesses risk management process.  It is hoped that the guidance will assist in protecting the assets and customers of smaller businesses and accordingly give owners reassurance. Further, the guidance specifies that through effective planning and prevention methods businesses will save money and gain a competitive advantage if they are seen to be safe and take security seriously.  Taking all of these factors into account the question to ask yourself is - are you and your business protected?

For further information, please contact  Valerie Surgenor on +44 (0)141 303 1100 or David Gourlay on +44 (0)131 229 5046.

Ecija is pleased to  announce the opening of their new Head Quarters recently in Madrid to Torre de Cristal, one of the most innovative office buildings in Spain, located at the new financial heart of Madrid.

With 250 meters of height and 52 floors (47 of offices and 5 of service facilities) Torre de Cristal is a huge office skyscraper located in Four Towers Business Area (CTBA), one of the most avan t-garde and exclusive trade centers in Europe.  The new address is:

ECIJA

Torre de Cristal, Pº de la Castellana, 259C, 28046, Madrid

Contact: hugo@ecija.com

T: +34 91 781 61 60

www.ecija.com

Selected among the 10 top law firms by Expansión. Best Spanish Law Firm in Technology, Media & Telecoms (Chambers, Legal 500, 2012).

AN INTERESTING DECISION - ON APPEAL

In October 2011 we reported on the Scottish case of Farstad Supply v Enviroco concerning the 8% judicial rate of interest on financial claims.  The decision was appealed, and that was decided on 20 February 2013.

Interest rate of 8% too high
Prior to the economic downturn, a litigant would generally expect to recover interest on a financial claim at the rate of 8% a year, set by the rules of court. This judicial rate had been fixed at 8% since 1 April 1993. However, in view of the financial crisis and consequent reduction in the return on deposits, the Court of Session in this case (both at first instance and on appeal) departed from the usual 8% rate and applied instead a rate of 4% a year from December 2008. In doing so, the court noted the disparity between the judicial rate and that enjoyed by depositors using ordinary bank accounts.  The bank base rate fell to 2% in December 2008, which Lord Hodge described as a "watershed".

The interest claim in this case was valuable, as it had been running since December 2002 on a figure of £1.7m.  The defenders argued that even applying the 4% rate to a restricted period still afforded the pursuers a massive windfall in the present economic climate.
 
The appeal court upheld Lord Hodge's decision.  However, they aimed some barbed comments at the Scottish Government for not acting upon various representations from bodies such as the Scottish Law Commission, that the judicial rate of interest is wholly mismatched with economic reality. The decision sees the court doing what it can to cater for that reality, within the restricted role they have in interpreting, but not making, legislation.  The appeal judges considered that in these circumstances, the responsibility for updating the current judicial rate fell to the body who amend the rules of court, the Rules Council, and they should do something urgently.

Comment
Hopefully, this issue will be addressed soon in a formal rule change.  Until then, interest continues to be a matter of negotiation.  
 
A confusing twist?
Given the court's approach in Farstad it might come as a surprise that the very next day it issued a judgment refusing to take account of the economic downturn when ruling on the amount a seriously injured pursuer should recover for his future losses in an action for damages. When assessing compensation for a person's future loss of earnings, the court takes account of the fact that a pursuer will likely invest their compensation and enjoy some return on that investment over time. To cater for that a "discount rate" is applied to the sum awarded to recognise the increasing return likely to be enjoyed. 
 
In Tortolano v Ogilvie Construction the pursuer sought to argue that a discount of 2.5% on his award was excessive as it failed to take account of the more limited rate of return which would be enjoyed in the current climate. He argued that reduced rates should be applied to the discount of his future losses. Predictably, the defenders' insurers argued that the rate should not be varied as it was set in stone by unambiguous legislation.
 
The court agreed with the defenders and in so doing removed the economic background from having any bearing on the assessment of damages. 
 
Does the left hand know what the right hand is doing?
Whilst the decision in Tortolano is contrary to the approach taken by the same court the day before, the devil, as always, was in the detail of the legislation being considered by the court in each case. The court appears to have concluded that the legislation in the injury case afforded far less discretion than the material legislation in the commercial case. In both cases however the court was at pains to point out to Parliament and Government the urgent need to review the law governing issues such as interest or other monetary rates in the light, or perhaps the shadow, of the still harsh economic climate.

For further information please contact Julie Hamilton, julie.hamilton@macroberts.com, on +44 (0)131 229 5046 or Scott Manson, scott.manson@macroberts.com, on +44 (0)141 303 1100.

© MacRoberts 2013

MI Interact, the collaborative network of global legal firms has welcomed ADVODAN Helsingør as a new member representing Denmark.

ADVODAN Helsingør is a member of the largest Danish chain (network) of independent law firms, which has 37 offices placed throughout Denmark, offering full service expert advisory services particularly to small and medium-sized enterprises, and currently employs approximately a total of 500 people.

Paul Harding, Chairman of MI InterAct, comments: “We have been looking for the right member in Denmark for a while and ADVODAN Helsingør offers the perfect fit to strengthen the offering of our network.  Our member’s clients can benefit from unrivalled legal advise thorough Denmark in addition to the jurisdictions of existing members”

“We have been searching for the right network for sometime and MI InterAct is a great fit for our firm as it has a personal offering and impressive member firms” says Jens Gottlieb a Partner at ADVODAN.

 600 young lawyers meet in Barcelona for the 50th congress of the International Association of Young Lawyers

InterAct Europe, the pan-European network of independent legal practices has entered into an alliance with award winning Morison International, a global association of 90 leading professional accountancy firms in 65 countries.

Although a Spanish court last Thursday dismissed one company's "right to be forgotten" case against Google, the ongoing legal standoff will continue. Voices are rising over the issue as the European Commission this past January proposed a vast overhaul of data protection laws, including guaranteeing citizens a "right to be forgotten."

Spanish company Alfacs Vacances, which runs the Los Alfaques camping ground on the idyllic Mediterranean coast not far from Barcelona, had sued Google Spain to prevent the search engine from displaying gruesome images of charred bodies from a deadly gas explosion in the late 1970s.

Owners of the campground at Los Alfaques - which had no connection with causing the accident - argued that because horrific photos of the accident continue to appear high on the page in search results for "Los Alfaques camping," its business reputation was being harmed.

Although the Spanish court ruled that Google Spain as a mere subsidiary lacked standing to be sued, the California-based Internet giant - and other Internet platforms - may be seeing more time in court as the European Union codifies this proposed right.

Remembering to forget

Viktor Mayer-Schönberger, a professor at the Oxford Internet Institute and author of "Delete: The Virtue of Forgetting in the Digital Age," told DW that the problem in the Los Alfaques case, as in many others, is that "one almost accidentally stumbles across old information that has no relevance."

In the modern age, where the Internet compresses time, forgetting "functions to enable us to act in the present," Mayer-Schönberger said.

Mayer-Schönberger describes the right to be forgotten as "a big and a growing issue," with the trend in the European Union "toward regulatory action for a right to be forgotten."

EU Justice Commissioner Viviane Reding, upon unveiling the European Commission's proposed overhaul of data protection rules at the end of last month, said in a statement that "the protection of personal data is a fundamental right for all Europeans."

The current proposal to reform the EU data protection directive of 1995 would, among other things, guarantee people the right to withdraw data they themselves have published on the Web.

"It is clear that the right to be forgotten cannot amount to a right of the total erasure of history," Reding said last month.

Mayer-Schönberger added that the issue is very much about "how we strike a balance between free speech and privacy."

Natural versus corporate person

In Spain, with its already codified data protection laws and strong data protection authority, there are more than 100 right-to-be-forgotten cases pending against Google.

Cristina Sanchez-Tembleque Cayazzo, an attorney with the Madrid branch of Ejica, a law firm specialized in technology and media, emphasized the importance of making a distinction between a natural person and a company.

The pending Google challenges are different from the Los Alfaques case because "the Spanish Data Protection Authority only prosecutes cases involving the personal data of individuals," Sanchez-Tembleque told DW.

Sanchez-Tembleque sees privacy and business reputation as separate issues, and thinks that the Los Alfaques case will have to go through a different law process than cases with human being plaintiffs.

But Jeffrey Rosen, a law professor at George Washington University in Washington, D.C., sees the Los Alfaques case "as a reminder of how amorphous and ill-defined the right to be forgotten is, and of how much litigation it will generate."

Economic interests

Peter Fleischer, Google's global privacy counsel, in an company blog post earlier this month said people should retain a right to delete content they generate, but claims "practical and legal limits to what can be expected of hosting platforms."

"Ultimately, responsibility for deleting content published online should lie with the person or entity who published it," he added.

Rosen, calling Google a "neutral platform," said it could lose 1 percent of its yearly revenues to right-to-be-forgotten claims, and could start self-censoring to avoid them.

But Mayer-Schönberger sees Internet platforms as far from neutral.

"Advertising is based on collecting and keeping as much info as you can," Mayer-Schönberger said, pointing to ongoing privacy concerns with Facebook as a related case.

"We need the equivalent of seatbelts, in the digital age as well," he added.

Rosen contends that the EU regulation sweeps far more broadly than acknowledged, and reflects a need to precisely define the legal terms involved.

Case-by-case basis

The right to be forgotten has also been playing out in German courts.

Wolfgang Werle and Manfred Lauber, half-brothers who were convicted of killing well-known Bavarian actor Walter Sedlmayr and then later released on parole, have brought a number of cases against Internet platforms that have hosted information associating them with the crime.

Dominik Boecker, a technology lawyer in Cologne, described two cases he worked on relating to the half-brothers' claims.

At a lower court, the brothers prevailed in one case. But in the other, the German Federal Court of Justice ruled that accurate media reports do not have to be retracted after the fact.

Boecker said that the balance between privacy and free speech rights always depends on the context, in particular on the level of public interest present, and will continue to be adjudicated on a case-by-case basis.

The Spanish attorney, Cristina Sanchez-Tembleque Cayazzo, echoed the need for balance and examination of each specific case. But the problem, she told DW, is that for example with a Google search, "there is no case-by-case algorithm."

Digital 'expiration date'

Technical solutions for Internet platforms are likely on the horizon as Web users become increasingly concerned with privacy.

Mayer-Schönberger described a number of potential "digital speedbumps" that could help to strike the right balance.

For example, Web search results could come up chronologically, he said. If this were the case, the charred people at the Los Alfaques campground "would come up on page 20" instead of at the top of the search, he said.

Or older search results could appear as "grey, withered," he added.

Mayer-Schönberger's proposal for a digital expiration date has Rosen's support.

"These kinds of technological solutions are the most promising ones," Rosen said, to "put truthful but embarrassing information into context."

Author: Sonya Angelica Diehn
Editor: Cyrus Farivar

The Impact of E.U. Internet Copyright Regulations on Early-Stage Investment: A Quantitative Study -  in collaboration with ECIJA

As we move into a new era of Internet growth fueled by new and emerging technologies, it will be increasingly important to understand the effect that regulatory changes might have on the Internet’s growth. One area currently being debated is digital copyright, and regulators are now evaluating several potential changes to current law that could have a large impact not only on content providers and distributors but also on how users themselves interact with content. Our research goal is to understand how these changes might affect the level of early-stage investment.

The Impact of E.U. Internet Privacy Regulations on Early-Stage Investment: A Quantitative Study – in collaboration with ECIJA

As we move into a new era of Internet growth fueled by new and emerging technologies, it will be increasingly important to understand the effect that regulatory changes might have on the Internet’s growth. One area currently being debated is online privacy, and regulators are evaluating several potential changes to current law that would have a large impact not only on the content providers but also on the online user experience. Our study captures these dimensions by understanding how these regulatory changes might affect early-stage investment.

The Madrid offices of Clifford Chance and Ecija have advised on the takeover of Spanish television network La Sexta by rival Antena 3.

The merger is among the most significant in the media sector this year, reportedly valued at €269m, and through which Antena 3, in exchange for a stake in its share capital, will acquire all the assets and liabilities of La Sexta – with the latter brand ceasing to exist.

The Clifford Chance team is led by Corporate Partner Javier García de Enterría, and includes Competition Partner Miguel Odriozola, Tax Partner Pablo Serrano de Haro and Administrative law Counsel Carme Briera.

La Sexta is represented by regular adviser Ecija, led by Managing Partner Hugo Écija, alongside Partners Leticia Domínguez, Esmeralda Campos and Emilio Prieto.

Under the terms of the agreement, La Sexta shareholders will receive 15,800,000 shares in Antena 3 representing seven percent of its share capital. In addition, La Sexta shareholders will be allocated a further seven percent dependent on the financial performance of Antena 3 in future years.

The merger has been facilitated in part by a restructuring of La Sexta, through a debt for equity swap (advised again by Ecija), and reflects a process of ongoing consolidation in Spain’s media sector, driven in part by falling advertising revenues, including notably the 2010 fusion of leading television and communications groups Telecinco and Cuatro.

TAX ARBITRATION

 Prof. Rui Duarte Morais, partner of YOLANDA BUSSE, OEHEN MENDES & ASSOCIADOS, will be one of the arbitrators acting on behalf of the Administrative Arbitration Centre (CAAD) for Tax Arbitration.

 Decree-Law Nr. 10/2011 of January 20 implemented tax arbitration, which, starting from the beginning of July, will function at the Administrative Arbitration Centre (CAAD), thus decongesting Courts and expediting the resolution of tax disputes.

This new system of alternative dispute resolution in tax matters has 92 arbitrators, among which are jurists, lawyers, university professors and economists, who will be responsible for making the decisions under this regime. Prof. Rui Duarte Morais, a university professor and lawyer, partner at YOLANDA BUSSE, OEHEN MENDES & ASSOCIADOS, is among those selected for the list of arbitrators.

Pursuant to Ministerial Order Nr. 112-A/2011 of March 22, the Tax Administration is bound by the jurisdiction of Arbitration Courts that operate in CAAD, in disputes of a value not exceeding € 10 000 000.

The decision of the Arbitration Court must be made within a six months period, renewable for successive periods of two months, with a limit of six months and the grounds for any extension must be communicated to the parties.

Contact: Dara Jeffries Yolanda Busse, Oehen Mendes & Assoc. ybom@netcabo.pt

T:+351.226.100.001

Pitmans LLP acts on the sale of Thames Travel Limited to Go-Ahead plc.

Pitmans LLP acts on behalf of Kinetic Facilities Limited, part of the Panalux Group, in its acquisition of the Direct Lighting business from Metro Imaging Limited.

Pitmans LLP acts on behalf of Maudesport Limited, one of the Uk’s leading mail order suppliers of sports and leisure equipment and team wear, on the sale of their company to DEMCO UK Limited.

Pitmans are ranked fourth in the South East by volume of deals in Experian’s league table of Corporate Finance Advisers HY2011.

Xavier Muñoz, partner of Gambling & Betting in ECIJA analyses the controversial questions that will undoubtedly generate harsh debates in parliament.

Following a year of transaction success Pitmans were thrilled to win 2 prestigious awards at the Thames Valley & Solent Deal Awards ceremony on Thursday 7 April 2011.

Law firm Pitmans is delighted to co-sponsor the Southern Tech 100.  Technology defines our region and is at the heart of our own practice.  Our dedicated technology group concentrates on understanding the industry and assists clients to tackle the issues they face.

InterAct Europe, the pan-European network of independent legal practices founded by Pitmans in 1990, has welcomed its first Spanish member firm with the arrival of Madrid and Barcelona-based ECIJA.

InterAct Europe, the pan-European network of independent legal practices founded by Pitmans in 1990, has appointed Paul Harding as chairman to develop the network’s presence across continental Europe.