作者:彭亚 争议解决部 金杜律师事务所

 

   无论是针对上市公司还是非上市公司,当收购交易势在必行、势在必得,迎面遭遇的却是标的股权/股份被全部或部分司法保全(以下称“被保全标的”),对于收购方而言确实是一件头疼的事:资金安全怎么保障?收购成本是不是会增加?交易安排是否不得不进行重大调整?收购标的会不会旁落于第三方?能否顺利完成标的过户?能否赶上预期的交易完成期限?过户后是否会有遗留问题?收购交易的过程会不会有合法性问题或者其他额外的潜在风险?…… Continue Reading 让资本走上坦途系列(一)——当收购遇上司法保全

Written by : Tom Shoesmith, Michael Amberg, Anna An

The Bureau of Industry and Security (BIS) within the US Department of Commerce has announced in an Advance Notice of Proposed Rulemaking that it is seeking public comments on how it should define and identify “foundational technologies” as it examines whether to impose stricter export controls on items that receive that label in order to protect US national security interests. Continue Reading BIS seeks public comments on how to define foundational technologies for purposes of export controls

作者:Aaron WolfsonEric Berger 纽约办公室

美国《反海外腐败法》

《反海外腐败法》是美国于1977年颁布的一项联邦法律,以反贿赂条款为主要内容,同时涉及相关会计实务。其中包含的反贿赂条款适用于所有美国人和某些外国证券发行人,并且大范围禁止为诱使外国官员协助任何人获得、保留或为其介绍业务,而向外国官员进行任何腐败性支付或作出支付承诺。1998年,美国修订了《反海外腐败法》的某些反贿赂规定,将其适用范围扩大到直接或通过代理人间接造成在美国境内发生腐败性支付行为的外国企业和个人。 Continue Reading 美国《信息指引》更新

Written by : Aaron WolfsonEric Berger KWM New York Office

The Foreign Corrupt Practices Act

The Foreign Corrupt Practices Act (“FCPA”) is a U.S. federal law enacted in 1977 that focuses on anti-bribery provisions and also addresses associated accounting practices.  The FCPA anti-bribery provisions apply to all U.S. persons and certain foreign issuers of securities and broadly prohibit any corrupt payment or promise of payment to a foreign official to influence that official to assist in obtaining, retaining, or directing business to any person.  Since the enactment of certain amendments in 1998, the FCPA anti-bribery provisions also apply to foreign firms and persons who directly or through their agents act in furtherance of any such corrupt payment that is to take place within the United States. Continue Reading FCPA Resource Guide Update

作者:熊进 张天镝 罗海

2020年以来,新冠病毒疫情在全球持续蔓延,中美关系不断恶化,全球经济受到重大打击。多种因素的叠加影响,导致中国企业海外投资大幅放缓[1]。同时,很多国家在疫情期间都不同程度地进一步收紧了针对外国投资的监管,其中包括对外资相对开放的澳大利亚和新西兰。 Continue Reading 新西兰云办公室主题周:新冠疫情下澳新外商投资监管环境的变化与应对

2020年8月28日,交通银行伦敦分行、农业银行伦敦分行、中信银行伦敦分行、浦发银行及其香港与伦敦分行分别作为委托牵头安排人及初期贷款行成功完成为交银租赁管理香港有限公司(简称“交银租赁管理香港”)提供3亿美元绿色银团贷款的交割工作。浦发银行(通过其香港分行)在此次绿色银团贷款中亦承担了绿色金融结构顾问的角色。 Continue Reading 交通银行伦敦分行等四家中资银行向交银租赁管理香港提供3亿美元绿色银团贷款成功交割

作者:雷继平 王巍 争议解决部 金杜律师事务所

2020年8月20日,最高法院发布了新修订的《关于审理民间借贷案件适用法律若干问题的规定》(下称“《民间借贷解释》”),大幅降低了民间借贷的利息上限标准,并将全面适用于自然人、非银行金融机构法人和非法人组织之间进行资金融通的行为,对资金市场影响重大。 Continue Reading 新民间借贷解释施行前已付的超额利息应该返还吗?

Written by Barri Mendelsohn KWM London Office

Executive summary

A break from the usual corporate and commercial case review for the Full English team as we tuck into a data protection case which has the potential to send tremors through all organisations who handle personal data. Continue Reading Can individuals claim damages for loss of control over their personal data

作者:Barri Mendelsohn 伦敦办公室

摘要

不同于英国法面面观中介绍的常见的公司与商事案例,我们正在全力投入一个数据保护案件,这个案件有可能引起所有涉及处理个人数据的公司的震动。 Continue Reading 失去个人数据控制权, 个人能否主张损害赔偿?

Written by Robert(Bob) Whitman Eric Berger  KWM New York Office

Introduction

Appeals of judicial decisions are commonplace in both federal and state court litigation in the US.  This note provides a brief overview of common types of appeals, an overview of US appellate courts, and the common appellate standards of review, which are the frameworks appellate courts use when evaluating appeals.

Common Types of Appeals

After a trial court level judge has entered a final written decision that resolves all claims against all parties to a litigation, the parties may typically appeal any final determinations by the court as a matter of right.  This is generally true for both federal and state court cases.  Because all parties to a litigation have the right to appeal and the court’s rulings on different issues often favor different parties, it is common for appeals to involve multiple issues being contested by different parties.

Before all claims in a litigation are resolved, a party may seek to appeal a decision it disagrees with through what is called an interlocutory appeal.  Such appeals are not available as a matter of right and proceeding with such an appeal requires the approval of the trial court.  The specific requirements for bringing an interlocutory appeal vary by court.  Federal district courts generally have three requirements for an interlocutory appeal to proceed.  First, that the outcome of the case would be conclusively determined by the issue being appealed.  Second, that the issue being appealed is collateral to the merits of the case.  And third, that the matter would be effectively unreviewable if immediate appeal was not allowed.  Interlocutory appeals are relatively rare in US civil litigation.

Decisions by US federal administrative agencies, such as the Securities and Exchange Commission or the US Patent and Trademark Office, may also generally be appealed to a federal court.  Which court hears the appeal depends on which administrative agency’s ruling is being appealed, with most such appeals being heard by a federal appellate court.

Decisions by intermediate appellate courts in the federal and state systems may potentially be appealed further to the US Supreme Court in federal cases or a state supreme court in state cases, but such appeals of an appellate court decision are not allowed as a matter of right.  The specific requirements for such appeals vary between the federal and state systems and from state to state, but typically require the party seeking a further appeal to submit briefing requesting the secondary appeal.  For example, an appellant wishing to be heard by the US Supreme Court must petition the Court for a writ of certiorari allowing such an appeal to proceed.

US Appellate Court Overview

Both the federal and state court systems have three levels of courts: a trial court level (referred to as district courts in the federal system), intermediate level appeals courts, and a highest level appeals court that is typically referred to as the supreme court, although the naming conventions vary somewhat by state.

Appeals from federal district courts are typically heard by the intermediate appellate level circuit court of appeals for the region where the district court is located.  There are, however, some exceptions, such as that all appeals of patent litigations are heard by the Court of Appeals for the Federal Circuit in Washington, DC.  Federal appeals at the intermediate appellate level are heard by panels of three appellate judges.  A party who loses such an appeal may requesting a rehearing “en banc” by all of the judges of that appellate court, but such a rehearing is not available as a matter of right.  An appellant who wishes to further appeal a federal appellate decision to the US Supreme Court can request permission from the Court to do so, but such requests are seldom granted.

State court appellate procedure varies by state, but trial court decisions may typically be appealed to an intermediate state appellate court as a matter of right.  Typically, a panel of three to five appellate judges would hear such an appeal, depending on the state.  A secondary appeal of a state appellate court’s decision to the state’s supreme court is not generally available as a matter of right in civil cases and instead requires approval from the state supreme court, which is seldom granted.  A decision by a state supreme court may potentially be appealed further to the US Supreme Court, but as with other attempts to appeal to the US Supreme Court, this requires petitioning the Court for a writ of certiorari, which the Court almost always denies.

Appellate Standards of Review

The framework that an appellate court uses to evaluate an issue on appeal is referred to as the standard of review.  The particular standard of review applied by an appellate court depends on the relevant courts and the specific issue and decision being appealed.

Appellate review of issues of law decided by a court are subject to de novo review, which literally translates to “of new.”  This is a standard of review where the appellate court evaluates the issue on its own as if the issue had not been previously decided by a lower court and without deferring to the decision of the lower court.  This is the least deferential standard of review used by appellate courts.

When an administrative agency interprets a law as part of making a decision and that interpretation is appealed, the appellate court applies Chevron deference, which is named after the US Supreme Court case that articulated this standard of review.  Chevron deference applies to questions of statutory interpretation decided by an administrative agency in a manner that has the force of law.  This standard of review gives substantial deference to the administrative agency’s decision.  The agency’s interpretation of the statute does not have to be the only permissible construction of the law for the agency’s decision to stand.  Rather, if the agency’s decision is based on a permissible construction of the statute and Congress has not addressed the precise issue in question, then the appellate court will not overturn the administrative agency’s decision based on its interpretation of the law.

The standards of review applied to factual determinations tend to be more deferential than those applied to rulings on issues of law.  Findings of fact made by a jury are subject to a substantial evidence standard of review that will not overturn the jury’s decision so long as it is supported by substantial evidence.  Generally, more than a mere scintilla of evidence in support of the jury’s determination is needed to meet this standard.  But the jury’s determination does not need to be the only reasonable determination supported by the evidence to be upheld on appeal.  If there is evidence that a reasonable mind might accept as adequate to support the jury’s conclusion, that is sufficient for the jury’s conclusion to be upheld on appeal.  This standard is applied to every material fact that a jury decided that is necessary for establishing an essential element of a claim or defense that is being appealed.

While factual determinations are usually left to juries in US civil litigation, in some cases judges make factual determinations, such as during a bench trial in front of a judge, which does not involve a jury.  Appellate courts review findings of fact made by a judge using a clearly erroneous standard that only overturns the lower court judge’s ruling if it constituted clear error.  During such a review the appellate court will look at the evidence as a whole and consider whether it has a definite and firm conviction that a mistake has been committed by the lower court.  While the lower court’s decision does not have to be the only decision supported by the evidence to be upheld, a lower court decision with some supporting evidence can still be overturned.

During litigation trial court judges are often required to make discretionary decisions on issues such as discovery disputes, whether a requested continuance should be granted, or on evidentiary issues.  Appellate courts review such decisions under an abuse of discretion standard that looks at whether the trial court abused its discretion in making its ruling.  This is a very deferential standard that rarely results in an appellate court overturning a lower court’s decision.  Examples of when a lower court’s decision on a discretionary issue may be overturned include instances where the lower court’s ruling was arbitrary, capricious, whimsical, or resulted in a manifestly unreasonable judgment.  Such a decision may also be overturned if the ruling made by the lower court was beyond the bounds of permissible choice in the circumstances.

Not all decisions considered on appeal present purely legal or factual disputes.  Some decisions involve a mixed question of law and fact, for example when a trial court makes a determination of whether a settled rule of law as applied to established facts is violated.  In such instances the parties do not dispute the historical facts at issue or what rule of law is applicable.  Typically, an appellate court applies a de novo standard of review in appeals of determinations made on a mixed question of law and fact.  But if factual issues predominate in the lower court’s decision, a clearly erroneous standard of review may be applied by the appellate court.