25 June 2018

Withers World Cup | Group stage | Round 3


#WithersWorldCup #WhoWillWin

We hope you have been enjoying our coverage of the group stage so far.

Whether or not you are a football fan, a global event such as the FIFA World Cup 2018 brings together communities from all around the world. Teams with different playing styles and fans with different cultures. As we move into the final round of the group stages, we continue to highlight the weird and wonderful legal quirks of the participating teams and the similarities and the differences between diverse nations and legal systems. Every day we'll release our brief comparisons of the teams involved in games and our conclusions as to who we think 'wins' in the legal stakes. With our global teams having their say, will our predictions reflect the outcome of the World Cup? Follow us to find out*.

Click here for our comparisons on games in round one, round two, the knockout round, and the final stages.

Japan v Poland- Thursday 28 June

If Poland were to lose this game it would be the first time in their history that they have lost all three group games at a World Cup. Japan will be hoping this is the case, and better Senegal's result against Colombia to cement first place in the group. Whilst this is not an attractive prospect for Poland, we compare why footballers would be attracted to both Japan and Poland for their legal systems.

Footballers are attracted by Japan's strong intellectual property protections, and evenly applied well developed legal system. Recent reforms by the Government, such as a reduced corporate tax rate attract investment, with the stated goal by the Government to double FDI into Japan by 2020, the same year that Tokyo will host the Olympics. Foreign investors make good use of Japan's extensive tax treaty network when structuring their investment into the nation.

Poland's high economic growth rate and strong future growth prospects has attracted footballers seeking access to its dynamic local market and the broader EU market. The nation has established a solid legal foundation and a tax regime conducive to foreign investment. The judicial system acts independently, but foreign investors are wary of solely relying on the over-burdened court system to enforce their rights. Thus, contracts involving foreign parties often include a clause specifying that disputes will be resolved in a third-country court or through offshore international arbitration.

2 – 1 to Japan?

Eric Roose, Partner, private client and tax, Singapore

Senegal v Colombia – Thursday 28 June

After several years out of the World Cup, Senegal is finally back leading the teams of Group H. Instead Colombia is at the bottom of the list of Group H with zero points. As recent players in the World Cup, one may ask whether Senegal and Colombia are recurrent actors in the context of international law proceedings before the International Court of Justice (“ICJ”).

The ICJ, seated in The Hague, is the principal judicial organ of the United Nations (“UN”) and settles international law disputes that States submit to it or gives advisory opinions on legal questions that UN organs and agencies refer to it. In general, the ICJ's jurisdiction is based on States' consent, that being through, among others, special agreement; clauses in international treaties; or through a declaration by which a State recognises, in relation to any other State accepting the same obligation, the ICJ's compulsory jurisdiction.

Senegal has recognised – with some reservations – the ICJ's compulsory jurisdiction by a 1985 declaration. Colombia has not issued such a declaration. But does this mean that Colombia is not an actor in international law cases at the ICJ? Interestingly, Colombia has participated in five proceedings (being sued twice), while Senegal only in two now terminated. Colombia is currently involved in two pending international maritime disputes, but the it has never being involved in an international dispute against Senegal.

In this match between Senegal and Colombia, I predict 2-1 for Senegal.

Camilla Gambarini, Associate, litigation and arbitration, London

England v Belgium – Thursday 28 June

Although both teams are already through to the final 16, there is everything to play for in tonight's game as Belgium and England fight it out for the top spot in group G. As the teams go head to head, how do their notice periods compare?

In England, notice periods for termination of employment are set by statute unless, a longer period is agreed as part of the employment contract.

In Belgium, until 2012, notice periods could only be agreed for certain workers at the end of their contracts. If not agreed, a judge would determine what was reasonable, taking into account levels of pay, age and length of service. A formula was even developed from case law to work this out. However, statutory notice periods now apply across the board.

We're calling this one a 2-2 draw!

Libby Payne, Associate, employment, London

And what about their opposite sex relationship rights?

In Belgium, couples in opposite sex relationships have been able to choose a civil union or 'statutory cohabitation' or marriage, since 2000.

In England, opposite sex relationships can only marry, whereas same sex couples have two options and can marry or enter into a civil partnership (and enjoy the same legal rights and responsibilities). Yesterday, our Supreme Court held that this is discriminatory under Art 14 (in accordance with Art 8) of the European Convention on Human Rights.

In the civil partnerships play off, England falls behind despite Belgium widening the goal posts so our score is Belgium 2 – England 1.

Michael Gouriet, Partner, family London
Natalie O'Shea, Professional support lawyer, family, London

Panama v Tunisia- Thursday 28 June

Both teams will be going home after today's match. While usually this would mean disappointment, Panama's achievement of reaching the World Cup group stages was such an achievement it meant that a national holiday was called. We compare Tunisia and Panama's real estate market.

Tunisia is a pro-landlord real estate market. There are no maximum annual increases for rent each year but the usual annual increase is 5%. The laws on the duration of contract between landlord and tenant and of eviction depends on how long the tenant has been living in the building and how old the building is itself. The lease can be renewed by an agreement between the two parties until a notice is given by either of the parties through bailiff or registered mail, but the owner can require the tenant to quit the premises by court order. During the contract time, however, the tenant can rarely ever be evicted unless there was non-payment of rent and reasonable notice of about two months by the landlord for eviction.

Panama is also a pro-landlord real estate market. The increases in rent each year is agreed between the two parties but if the rent of the property is US$150 or less per month, it can only be increased with a prior written authorization from the Minister of Housing, which is given depending on the reasonableness of a return for the landlord's investment. There are no restrictions or limitations on the duration of a lease agreement between the landlord and tenant in Panama and the tenant can terminate the lease at any time with a 30 day notice.

Panama 2 – Tunisia 0.

Michael Rueda, Associate, corporate, Greenwich

South Korea v Germany – Wednesday 27 June

The last round of games in Group F features Germany v South Korea. After managing to narrowly avoid a shock World Cup exit with a last gasp winner against Sweden, Germany will be hoping to secure their passage into the last 16 with a big win against a, so far, point-less South Korean team.

When it comes to the development of data protection and privacy law, Germany has historically seen itself as a global leader. The introduction of the EU General Data Protection Regulation (GDPR) supplemented by a fully revised Federal Data Protection Act may bring German data protection law more into line with the rest of the EU. However, in relation to issues such as companies with 10 or more staff handling data being obliged to appoint a Data Protection Officer and strict conditions for transfers of personal data outside Europe, the Germans arguably continue to take a tougher line than in other parts of the EU. South Korea has a comprehensive Personal Information Protection Act (PIPA) which has a number of similarities to EU data protection law. However the fines in South Korean of up to 50 million won (approximately EUR 38,000) for breach of the rules are significantly lower than potential penalties in Germany and other parts of the EU which, for the most serious breaches, could be up to 20 million EUR or 4% of global turnover (whichever is higher).

Germany will want to exercise a GDPR style 'right to be forgotten' in respect of their poor opening to the tournament and we predict a comfortable victory will enable them to qualify on goal difference: 4-0 to the Germans.

Kenny Mullen, Partner, intellectual property and technology, London

Mexico v Sweden – Wednesday 27 June

Following an unlucky last-minute defeat to Germany in their second game, Sweden must now beat current group-leaders Mexico to increase their chances of securing a place in the knockout stage (a 2-0 win would see them through). But how secure is footballers' data in these two countries?

As in all EU countries, the data of people based in Sweden is protected under the General Data Protection Regulation (GDPR), which came into force only weeks before the start of the World Cup (on 25 May 2018). The key aim of the GDPR is to give individuals more control over their personal data in a world where vast amounts of information is increasingly shared by individuals with the companies they interact with. The GDPR is seen as a positive step in the right direction and has set the bar high for the rest of the world when it comes to protecting individuals' data. Despite dating back to 2011, the legal position in Mexico has a number of similarities with the GDPR, particularly when it comes to holding companies and other 'data processors' accountable by requiring them to adopt and implement security measures to protect data against unauthorised use. One noticeable difference is when it comes to considering consent. The GDPR requires a very high threshold of consent which must be given by a clear affirmative action (opt-in does not include pre-ticked boxes), whereas tacit consent is generally still allowed in Mexico.

Overall a very close game, but we are calling this a 3-2 win for Sweden.

Andrew Fremlin – Key, Associate, litigation and arbitration, London
Giuseppe Guerreri, Trainee, corporate, London

Serbia v Brazil – Wednesday 27 June

Today, Serbia will play the five time champion Brazil. All eyes will be on Brazilian footballers to see whether they crack under such pressure while the Serbian footballer Mitrovic told reporters 'we have nothing to lose'.

Arbitrators deciding under the Brazilian Arbitration Act are also under some pressure as the Act requires arbitrators to issue a final award within six months of their appointment, unless extended time frames are agreed upon the execution of terms of reference. Brazilian arbitration institutions typically provide a period of two to three months for the final award to be issued after the parties' final allegations.

On the other hand, arbitrators deciding under the Serbian Arbitration Act do not have a specific time limit to issue an award.

Brazilian football and arbitration may be operating under higher stress levels but one can certainly make up for it with samba and some Caipirinha! All-time winners have not had slam dunk case in this year's world cup – we give a 1-0 win to Serbia!

Ruzin Dagli, Associate, litigation and arbitration, London

Switzerland v Costa Rica

Switzerland know that a draw will take them into the second round while Costa Rica has already missed out and will be playing for pride.

Both nations are committed to the Automatic Exchange of Tax Information using the Common Reporting Standard ('CRS'). The CRS is the OECD standard model international agreement introducing a new information-gathering and reporting requirement for financial institutions to help deter and detect tax evasion.

The first exchanges of information under the CRS took place last year with information collected in 2016 by countries that were 'early adopters'. Both Switzerland and Costa Rica are part of the second group of 'late adopter' jurisdictions that will exchange information in 2018. However, data security and confidentiality are important considerations, with information exchanged under the CRS intended to be used solely for tax purposes. Switzerland will only exchange information with 'partner jurisdictions' that have provided sufficient assurances that any data they receive from Switzerland will be handled securely and for the intended purposes. This means there will be no reciprocal exchange of data with Costa Rica until they have successfully implemented the Global Forum action plan on confidentiality and data security.

Switzerland's sturdy defence and superior finishing means we predict a 1-0 win.

Ian Perrett, Partner, private client and tax, Geneva
Tom Barber, Associate, private client and tax, Geneva

Denmark v France – Tuesday 26 June

We see Denmark v France today. With an array of individual stars in their ranks, the French team (one of the pre-tournament favourites) looked surprisingly laboured in overcoming Australia and Peru in their first two matches. Today they face the challenge of fellow Europeans, Denmark, who are chasing qualification themselves.

When it comes to the commercial rights of famous individuals, the French have long recognised personality rights under their civil code. In 2017, France also passed a law that specifically permits sports men and women to enter into separate image licensing agreements alongside normal employment contracts with their clubs. Subject to meeting certain conditions, royalties paid under the image rights license should receive more favorable treatment under French social tax laws when compared with salary under an employment contract. Denmark has arguably taken a more collective approach to the legal recognition of image rights, which have built up through a series of court cases and using a range of statute law.

Will French individual flair defeat a more co-operative Danish approach? Possibly, although with a draw taking both teams through to the last 16, we suspect that both sides may settle for a pragmatic sounding 1-1 instead.

Kenny Mullen, Partner, intellectual property and technology, London

Australia v Peru – Tuesday 26 June

This will be Peru's last game of their World Cup campaign while Australia will be hoping France can beat Denmark to keep their chances alive. The Australian defence will hope to be strong to bolster their goal difference, but what are the differences in their IP laws?

Peru's IP protections have increased through national implementation of international agreements such as Legislative Decree No. 822 (Copyright Law) 1996 which substantially accords with WTO's Agreement on Trade Related Aspects of Intellectual Property (TRIPS). However, Peru remains on the watch list of their trade partners because enforcement remains weak, particularly in relation to online piracy and counterfeit products.

The Peruvian government has recognised the impact that “piracy” has had upon legitimate industry, deterring investment in the area. Accordingly, Law No. 28289 (2004) against piracy was introduced to increase the minimum penalty to four years imprisonment and executive action has been taken by the INDECOPI (National Institute for the Defence of Free Competition and Protection of IP), such as through increased raids at counterfeit marketplaces and shutting down of popular streaming website Pelis24. Such actions have had limited value as the judiciary does not prioritise IP cases and remains reluctant to enforce criminal deterrent sentences.

Australia has generally been recognised as having strong regulation of intellectual property rights, ranked 12/45, as opposed to Peru's 28/45 in the US Chamber of Commerce's IP Index. The most significant development to date has been through the Copyright Amendment (Online Infringement) Act 2015 which allows individual parties, rather than the government, as in Peru's case, to take steps to disable web piracy.

The judiciary has been co-operative in its enforcement of the legislation, handing down a landmark judgement in Roadshow Films Pty Ltd v Telstra Corporation Ltd & Ors [2016] FCA 1503, which ordered internet service providers to block access to 49 piracy sites and their associated domain names. This decision has led to further successful applications, where orders were made to block 17 and then a further 28 websites which were hosted in both national and international jurisdictions. It is also significant to note that owners of music have also been able to compel ISPs to block access to a torrent website in Universal Music Australia Pty Ltd v TPG Internet Pty Ltd [2017] FCA 435. The current practice for obtaining orders have so far been effective.

2-0 Australia.

Justin Gross, Partner, real estate, Singapore, Sydney

Nigeria v Argentina – Tuesday 26 June

Argentina and Nigeria are familiar foes at the World Cup, having been drawn in the same group in 2002, 2010 and 2014. It's do or die time for the finalists from 2014, Argentina – only a win will give them any chance of progressing to the last 16 in Russia (and even then they'll need Croatia to keep to the script by seeing off Iceland).

Both nations boast progressive income tax regimes and, with the exception of Argentina's Buenos Aires and Entre Ríos provinces, neither levies an inheritance/estate tax. Both countries also attract foreign investment through competitive rates on capital gains, with gains on Nigerian companies' shares being exempt for non-resident individuals. Meanwhile, individuals and families looking to put down roots in Argentina – temporary or otherwise – will need to consider the impact of the net wealth tax (impuesto sobre los bienes personales) which, broadly speaking, catches non-residents owning Argentinian-situs property worth more than around £29,000.

Back on the field, Argentina's defence is looking leaky to say the least, but surely Lionel Messi's side will find a way. We're calling this one a nervy 2-1 to Argentina.

Andrew Carruthers, Trainee Solicitor, private client and tax, London

Iceland v Croatia – Tuesday 26 June

If Iceland are to replicate their group success of Euro 2016 they will need a minor miracle and results in the other group to go their way, while Croatia are already through to the knock-out rounds. While the heat in Russia will play a major factor in the energy of both teams, how do the countries energy sources compare?

Iceland is the world leader in geothermal energy with six plants located in the country. Geothermal energy involves drilling thousands of metres into the ground to penetrate reservoirs of pressurized water. Heated by the Earth's energy this water can also turn into steam to produce electricity and hot water supply for cities. The Hellisheioi 300 MW geothermal power station, for example, produces hot water and electricity for the city of Reykjavik. Nearly 100% of Iceland's energy needs (excluding transport) are powered by green energy from geothermal and hydro sources.

Croatia also has the potential to be nearly 100% energy sufficient with green renewable technologies. It has been asserted that power from solar panels (50%) on shore wind (30%) and hydroelectricity (12%) could sustain Croatia's energy needs by 2050 thereby creating jobs and saving lives with reduced air pollution. Croatia's potential for solar power, in particular, has been acknowledged as “tremendous”. This discussion on renewable energy is a timely one for Croatia: the country is proposing to allow drilling for oil and gas in its pristine Adriatic Sea thereby triggering fears that such drilling may threaten its burgeoning tourist revenues.

Iceland 3-2

Denis Petkovic, Partner, banking and finance, Hong Kong

Uruguay v Russia – Monday 25 June

Uruguay is well known for being the host and the winner of the first FIFA World Cup, which took place in 1930, almost 90 years before the current Russia World Cup.

What is less well known is that both Uruguay and Russian legal systems are continental code-based, basing their respective civil codes on Roman and Napoleonic civil law (Russia also making use of the German and Dutch legal tradition), but that the Uruguayan Código Civil was adopted in 1868. In Russia, although the Code of Laws of the Russian Empire (Свод Законов Российской Империи) existed since the 1830s and included a part on Civil Law, and work on a draft self-contained Civil Code (Гражданское уложение) continued throughout the 19th century, the first Civil Code was finally adopted by the Soviet Union only in 1922, almost half a century after Uruguay.

With such two prominent and quite obviously inter-related firsts, I predict a 2-0 win for Uruguay.

Natalia Faekova, Associate, litigation and arbitration, London

Saudi Arabia v Egypt – Monday 25 June

This will be the last game for both Saudi Arabia and Egypt following their defeats in earlier rounds. With nothing more to play for than pride, hopefully it will be an open game and a bit of a treat for the neutrals watching. Now let's also look at their BITs.

Bilateral investment treaties ('BITs') can be a means of encouraging investment flows between countries and they set out important legal protections for investors. Egypt has signed 100 BITs with a wide array of countries, and 72 of them are in force. Saudi Arabia, on the other hand, has only signed 24 BITs and 19 of them are in force.

A win for Egypt on the numbers. But Saudi Arabia has investment treaties with some of the major economies so it could be as close as 1-0 to Egypt.

David Walker, Associate, litigation and arbitration, London

Spain v Morocco – Monday 25 June

Today Spain will play Morocco. 

Divorce has been allowed in Spain only since 1981.  Different regions apply different rules on allocation of property on divorce, so couples need to be careful about where they choose to live. 

Unusually for a Muslim society, Moroccan wives have the right to divorce their husbands and a first wife can object to her husband taking further wives.  Far reaching changes were adopted in the Moroccan personal status code in 2004, the most symbolic of which is the pronouncement that women are men's sisters before the law.   

2-0 Moroccan win.

James Copson, Partner, divorce and family, London

Iran v Portugal – Monday 25 June

Portugal and Iran face a crunch match today – whoever wins is guaranteed to progress to the knockout rounds. If the two nations share the honours with a draw, Iran will be relying on Morocco beating Spain by a two goal margin to qualify.

Each of Portugal and Iran have established minimum capital requirements and a minimum number of shareholders for forming companies in those countries:

- a Portuguese limited liability company organised by quotas (a proportion of the company’s liability for its debts) can have a minimum quota capital of €1 and can have a minimum of one shareholder;
- an Iranian limited liability company will require a minimum share capital of IRR 1,000,000 to be registered with the Iranian Registrar of Companies and requires a minimum of two shareholders.

In addition, notwithstanding USA’s reintroduction of much stricter sanctions on Iran, certain sanctions relating to foreign investments into Iran still remain in place even after the 14 July 2015 agreement between the EU and Iran. UK government guidance currently states: 'You will wish to consider in particular, if you are dealing with a designated person or entity, whether a certain trade product or material is restricted, and how and to whom payments will be made.'

3-0 Portugal

Jamel Saleh, Associate, corporate, London

*The information and comments in this blog are for the general information of the reader and are not intended as legal advice or opinions to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.

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