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E-newsletter  -  June 2016

 
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Business Law
The breakdown of negotiations for the sale of a business going concern is not abusive wherever the parties have not yet agreed on the sale price

Catherine Nommick

On February 16, 2016, the Commercial Chamber of the Cour de Cassation (French Supreme Court) handed down an interesting decision concerning the abusive breakdown of negotiations.

This decision, which is consistent with the line of decisions rendered on that subject, brings additional clarification about the breakdown of on-going negotiations for the sale of a business going concern.


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Contracts
General terms that have not been accepted are unenforceable

Flore Foyatier

In a judgment dated May 3, 2016, the Court of Appeals of Versailles provided a new illustration of a long established case-law according to which the general terms of a party are contractually binding only if they have been accepted, at the time the contract was formed, by the party against whom such terms are intended to be enforced.

This judgment is reminiscent to a similar decision handed down by the Court of Appeals of Versailles on January 5, 2016 in a case where we represented the party against whom the enforcement of a jurisdiction clause set forth in its own general terms of purchase was sought.


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Personal Data
New regulation on data protection (Part II)

Laure Marolleau

The very much expected Regulation n°2016/679 of the European parliament and of the Council of April 27, 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (also known as “General Data Protection Regulation” or “GDPR”) has just been published on the Official Journal of the European Union (OJ, L 119, May 4, 2016).

Based on a proposal from the European Commission of January 25, 2012, this Regulation jointly adopted by the European Parliament and the Council repeals Directive 95/46/EC and provides for a general and unique framework for the data protection in Europe.  

In this article (Part II; Part I published last month), we propose to identify the most important innovations in this Regulation.


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Corporate Law
Corporate officers have a duty of loyalty with respect to sales of shares

David Faravelon

In a decision dated April 12, 2016, the Commercial Chamber of the Cour de Cassation (French Supreme Court) clarified the scope of a well-established case-law according to which corporate officers/members of company boards, who are bound by a duty of loyalty towards their shareholders, must disclose to the shareholders wishing to sell them their shares any and all information that is likely to influence their judgment.

The Cour de Cassation specified that corporate officers/members of company boards are merely required to disclose to such shareholders the information that is known only to them, thereby considering that the selling shareholders themselves must also inquire about the terms and conditions governing the sale of their shares.


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Experts’ contributions
The evolution of the ‘foreign partnership’ definition in South Africa

We are pleased to publish this month a contribution entitled The evolution of the ‘foreign partnership’ definition in South Africa, authored by our colleague Ms. Refilwe Mashale, tax consultant at ENSafrica, Africa’s largest law firm.

In South Africa, the determination of whether a foreign entity is a company or partnership is an important one as it subsequently determines the applicable tax treatment of the foreign entity. The issue of whether foreign entities should be recognized as foreign companies or foreign partnerships in South Africa, was recently brought into the spotlight once again by the Taxation Laws Amendment Act No. 25 of 2015.

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