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Advertising Law Definition
Marketing plays an important role in the success of a company and its products. Successful advertising often depends on making forceful statements in relation to a product's performance or in comparing a product with a competitor's product. Companies are also keen to challenge competitors' advertising which they believe to be inaccurate or misleading.
Attorneys in this area anticipate potential problems before they arise, clearing potentially problematic marketing campaigns before the advertising campaign for a new product is launched. Attorneys analyse and evaluate product promotions and advertising in the light of regulatory frameworks and other restrictions. Advertising lawyers can operate as an integrated international team of professionals, in order to provide coordinated worldwide and cross-border advice. Ads are pre-screened before they are run.
Attorneys also assist their clients in vigorously defending marketing campaigns against claims of misleading advertising before the courts, the public authorities, or the self-regulatory bodies and actively pursue claims against competitors who make misleading statements. In Germany, the Act against Unfair Competition (UWG) as well as other specific legal provisions, e.g. Pharmaceutical Advertising Act (HWG), constitute the legal basis for such claims. The course of action against misleading or false advertising or advertising violating other restrictions predominately starts at a level between competitors. After detecting such inadmissible advertising material, a competitor (or a consumer protection agency) can issue a warning letter to the allegedly infringing company and demand the signing of a cease-and-desist declaration. In complying with this demand, the infringing company will be obliged to pay a penalty for each further violation of the cease-and-desist declaration as a result of repetition of the inadmissible advertisement or use of similar advertising material.
If the infringing company is unwilling to sign a cease-and-desist-declaration, the infringed company can apply to any Regional Court in Germany for a preliminary injunction. Germany has quick and effective proceedings for injunctive relief and in many cases the initiation of main proceedings becomes unnecessary. Generally, a preliminary injunction can be obtained in an ex parte proceeding within the course of a few days. The preliminary injunction is enforceable as soon as it is served on the infringing party which is, thereafter, obliged to refrain from using the marketing materials concerned. Due to the expedited procedure, international operating companies often start attacking a competitor in Germany before launching comparable complaints in other countries.
Appellate Practice Definition
Arbitration and Mediation
Arbitration and Mediation Definition
Arbitration and Mediation are two different instruments of alternative dispute resolution to settle a dispute without resorting to state court action.
Arbitration is a special form of jurisdiction which the parties have to agree upon specifically – generally through a provision in a contract or a separate agreement. Different to a state court action, the parties can tailor the arbitral proceedings to their particular needs: For instance, the parties may choose the language of the arbitration, the exact procedure to be followed, and even the arbitrators themselves. Further strong points of arbitration are, in general, the confidentiality of the proceedings and that arbitral awards are easier to enforce internationally than state court judgments.
There are a number of national and international institutions that have established standardized rules for arbitral proceedings, such as the International Chamber of Commerce (ICC), the German Institution of Arbitration (DIS), or the Swiss Chambers’ Arbitration Institution. The parties can opt for the application of these institutional rules or to conduct an ad hoc arbitration. In an ad hoc arbitration the parties have the possibility to individualize the proceedings even further, or to leave such questions to the experience of the arbitrators. Once an arbitration agreement has been concluded, a party cannot file a lawsuit in a state court anymore - unless the other party consents to waive the arbitration agreement.
Mediation is a negotiation method to resolve differences in a (business) relationship which is conducted by an independent, impartial, and respected third party. Unlike an arbitral tribunal, a mediator has no legal powers to issue a binding judgment on the case. Instead, the mediation process is aimed at enabling the parties to reach an amicable settlement themselves. Such amicable settlement can be particularly valuable, if the parties are intending to continue their business relationship in the future.
Mediation and Arbitration can be combined – as a first step, parties often try to resolve their dispute through mediation; only if an amicable settlement cannot be reached, the parties submit their dispute to an arbitral tribunal in order to obtain a binding and final judgment on the case.
Art Law Definition
The need for legal services surrounding the creation and the circulation of works of art has become more essential than ever, due to regulatory developments and increasingly high values involved.
The term "Art Law" describes all areas of law which routinely affect the production of art and differ-ent types of transactions in the art world, including copyright law, cultural heritage law, restitution matters and many areas of civil law (especially contract law and finance law). Art law may also in-volve questions related to taxation and customs, as well as estate law and foundations.
An art lawyer's clients typically include collectors, artists, foundations, corporate collections, muse-ums, artist estates, family offices, galleries, auction houses, private banks, art advisors and other players of the art market.
Many of the services provided in the art market are traditionally commission-based so it follows that a potential conflict of interests of stake-holders may arise. In contrast, the advice a lawyer can offer, is impartial.
Attorneys in this area of law must have a deep-seated knowledge about the art business in order to anticipate potential problems before they arise, e.g., by assisting in conducting due diligence in the course of the acquisition of an important work (e.g., clearance of the chain of title, provenance issues, authenticity issues) or helping to contractually shape financial transactions related to artworks. If an acquired work is revealed to be a forgery, an art lawyer can assist in legal proceedings to provide a remedy for his client. An art lawyer also aids his clients in the course of importing and exporting artworks which are subject to complex national, European and international regulations. If a collector or developer of a building commissions an art work, such a project has to be legally and contractually structured. Additionally, art law also includes questions of defective title and asset recovery, in the event that artwork is stolen. By virtue of the art industry being a global business, art law matters often involve several jurisdictions.
Lastly, legal and tax related questions should always be taken into account when art is passed on to the next generation, or is dedicated to a foundation.
Asset Finance Law
Asset Finance Law Definition
Asset Finance or asset based lending is a type of financing in which the decision to grant a loan is mainly (although not exclusively) based on the value of – and eventually the cash flow deriving from – an asset, rather than the creditworthiness of the borrower. Asset finance is usually used in the context of short- or mid-term financing, e.g. working capital.
The assets to be financed comprise all kinds of balance sheet assets having a monetary value, such as balances in bank accounts, insurance claims and other receivables, stock, bonds, mutual funds, inventories and any other tangible as well as intangible assets, and real estate. In return for granting a loan, such assets will be used as collateral in which the borrower provides a security interest to the lender. The security interest may include a pledge, lien, (security) assignment of rights and claims, land charges, as well as transfer of title by way of security.
Usually, both the amount borrowed and the risk monitoring (e.g. cash trap/cash sweep) as well as a default or the enforcement rights under the finance and security documents agreement will depend on the value of the asset and its development as well as the cash flow generated from it.
Asset Finance Law therefore covers structuring, drafting and negotiating all types of asset finance instruments.
Automotive Law Definition
Aviation Law Definition
An Aviation Law attorney may provide counsel and legal advice across segments of the aviation industry. The lawyers in this practice area focus their practice on the financing, leasing, sale, purchase, operation and maintenance of aircraft as well as flight / air travel generally and all associated legal and business concerns. This highly specialized field requires a comprehensive knowledge of aviation regulations, specific laws regarding flight, and an in-depth understanding of aviation as an industry.
Aviation is a heavily regulated industry on account of the wide ranging safety and liability issues which can arise in connection with the transport of persons and products via air. In Germany the regulator with oversight responsibility for aviation is the Luftfahrtbundesamt (LBA).
Lawyers specializing in aviation can advise on a very wide range of issues including:
• Advising airport authorities and airport operators
• Aircraft Accidents, incidents and insurance claims
• Compliance issues with existing regulations and laws
• Maintenance and airworthiness issues
• Insurance coverage and risk management
• Purchasing, selling, financing and leasing of aircraft
• Registration and deregistration of Aircraft and associated security instruments with the LBA
• Tax aspects of buying, selling, and financing aircraft, like kind exchanges, and state and use tax planning
The practice of Aviation law also can include representation and dispute resolution in court and in arbitration tribunals.
Banking and Finance Law
Banking and Finance Law Definition
The term banking law as used for the methodology of this guide encompasses (1) the legal regime applicable to banks due to the nature of their organization and business segments, as well as (2) the rules of law applicable to the types of transactions banks are conducting as part of their business model.
The first segment of banking law, which is often referred to as banking regulation, has since the financial crisis in the last decade developed from a relatively unspectacular discipline, on which only a few selected and highly specialized — very often in-house — lawyers were focused, to a dramatically expanding field of law fueled by the ever increasing worldwide, European, and national banking legislation. In addition to the international framework and its implementation in domestic German law, the creation of the European Central Bank (ECB) in Frankfurt has substantially enhanced the demand for qualified banking regulatory specialists in the German market. A number of top tier law firm trained lawyers have meanwhile joined the ECB, the BaFin (the German banking regulator) and the legal departments of banks of every size. Nothing today leads to believe that this trend is going to be inversed soon, and presently all notable domestic and international law firms active in the German market have beefed up their banking regulatory capabilities, or actually for the first time have created such banking regulatory teams.
The second segment of banking law comprises the legal regime applicable to any kind of services and transactions banking institutions are rendering to their clients. Within this broad range, it can be differentiated among the rules applicable to traditional account handling and payment services, those regulating the banks’ financing business and taking of security interests and finally the legal framework of any securities and investment transactions. The common legal framework for these banking disciplines remains the German Civil Code (Bürgerliches Gesetzbuch – BGB), which contains the main principles governing most of these banking transactions. Due to the high level of codification in German civil and commercial law, German law governed transaction documents, e.g. loan agreements, bond documentation, and security documents can be in substantially shorter form than their counterparts governed by English law or U.S. law which leads to leaner documentation structures, particularly if only domestic parties are involved.
Bet-the-Company Litigation Definition
Biotechnology Law and Life Sciences Practice
Biotechnology Law and Life Sciences Practice Definition
Capital Markets Law
Capital Markets Law Definition
Capital markets are the financial markets for the issuance and trading of medium to long-term equity and debt instruments such as bonds and stock. The markets are divided into the so-called primary markets where new stock and/or bonds are issued and sold to investors, and the secondary markets where existing securities are traded.
Market participants include companies as well as public entities and authorities, e.g. federal and national states but also municipalities. While private entities issue both new shares, i.e. participations in the company, and debt instruments like bonds to raise money, public entities only issue bonds. The markets are therefore also divided between stock and bond markets.
Although there is no time limit for trading in the secondary markets, the typical investment period for which money is provided is longer than one year. The capital markets are vital to national and global economies to channel savings and bring together investors – both private and institutional – and those entities being in need of money.
Capital Markets Law includes all kinds of legal services from advice and contractual documentation to disputes in connection with or arising from the issuance of or trading in financial markets instruments. To name but a few, the activities of a capital markets lawyer range from drafting bond conditions and prospectuses, application and admission to stock exchanges, dealing with supervising authorities, to litigation with respect to prospectus liability, liability due to incorrect ad hoc announcements or insider dealing, including class actions arising in that context.
Competition / Antitrust Law
Competition / Antitrust Law Definition
Most economic systems are based on the idea of market economy. The aim of Competition Law/Antitrust Law is to guarantee effective competition as an essential element of market economy and thereby to ensure that demand and supply meet at reasonable prices and to protect the interests of consumers (consumer welfare).
Therefore the provisions of Competition Law seek to regulate anti-competitive practices as agreements or concerted practices restricting free competition (e.g. cartels), abusive behaviour of market actors holding dominant market position (such as excessive pricing, predatory pricing, tying, refusal to deal, fidelity rebates, or discrimination) or practices tending to lead to dominant positions and mergers and acquisitions including joint ventures of market actors which are considered to threaten effective competition.
The legal regulations to be met in the field of Competition law by global market actors are challenging as most regulation is subject to national law what necessarily leads to a restricted territorial scope of application and variation in substance and practice between national markets. Due to general expansions of competition authorities' activities as well as closer communication and collaboration of national authorities, compliance with national and international legal requirements is even more important than before. Agreements falling foul of any applicable competition laws may be considered void irrespective of the location of the parties or the laws governing the contract. Serious infringements such as price-fixing between competitors, resale price maintenance, or exclusionary practices by dominant undertakings may lead to substantial fines. As fines get more severe any violation of Competition Law cause enormous financial burden and may even result in liquidation. Companies' representatives have to be aware of the fact that competitive authorities may impose fines for anti-competitive practices on themselves and moreover, that some of these practices even constitute crimes and may lead to imprisonment.
Attorneys in the field Competition Law assist in detecting and understanding the applicable provisions and advise on compliance in a multitude of cases. Attorneys' work include e.g. advice in preparation of mergers (including challenging cross-border-mergers) and joint ventures as well as guidance in establishing compliance programs and – ongoing – regarding compliance in business relationships. Furthermore guidance in market definition may be necessary to detect dominant market positions.
Moreover, they assist both individuals and companies with challenges of authorities and claims for damages by competitors. Attorneys take over representation in litigation and act as defence lawyers before authorities and may advise in preparing settlements. Often they will be called to represent companies' interest in ongoing inquiries but also for guidance in starting inquiries by applying for leniency.
Construction Law Definition
The (non-specific) term "construction law" comprises private construction law and public construction law. Private construction law refers to the area of German civil law that deals with work contracts and construction contracts, specifically from the negotiation phase to the conclusion phase and the implementation phase (including final billing). Meanwhile, public construction law refers to the area of German public law that deals with construction projects. Public construction law furthermore distinguishes between building law (German: "Bauordnungsrecht") and construction planning law (German: "Bauplanungsrecht").
The comprehensive knowledge that our construction law consultancy is built on extends beyond the mere core understanding of construction law to understanding the boundaries of construction law to other, closely related law fields:
- Private construction law: Drafting of construction and developer contracts, presiding over contract negotiations, construction-related legal advice, litigations, contract and change-order management,
- Public construction law: Legal support during building permit, zoning and other building law mandated proceedings,
- Public-private partnerships: Legal advice in connection with public/private investment plans for infrastructure projects,
- Land law: Review and drafting of land purchase agreements,
- Architectural & engineering law: Contract drafting/negotiations, court representation (specifically receivables and liability claims),
- Tenancy law: Drafting of residential and commercial lease agreements, procedural implementation of rent increases, evictions incl. litigation involving tenant- landlord disputes,
- Broker law: Contract drafting, court representation.
Lawyers specializing in construction law should have a thorough knowledge of building codes and regulations as well as related law fields. Add to that a business-oriented mind and a basic understanding of construction project management, from concept to implementation/conclusion and beyond to marketing and management of an object. What will really make them stand out is the ability to offer the kind of legal advice that closes the gaps between different, related law fields under one roof.
Corporate Governance & Compliance Practice
Corporate Governance & Compliance Practice Definition
Corporate Governance stands for the legal as well as factual framework of controlling, i. e. managing and supervising legal entities. The term Corporate Governance is neither confined to the inner constitution of an entity nor to entities being organized as corporations. For, Corporate Governance addresses also the influence of outside stakeholders. And corresponding to the diversity of stakeholder groups, the legal form of the entities and the respective governance rules applicable vary extremely as well. Not only corporations, privately held as well as listed ones, but also partnerships, private endowments and public law institutions etc. are each subject to specific corporate governance rules. Understanding these rules and the underlying incentives that are crucial to the corporate governance of a specific entity as well as the legal structuring of corporate governance is the job of attorneys advising on Corporate Governance Law. In most cases these attorneys are corporate law specialists. Corporate Governance attorneys typically advise on establishing legal entities and on designing top management structures. However, they also render legal advice to corporate bodies of entities on Corporate Governance issues.
Simply put, Compliance means conforming to the applicable rules. Corporate Compliance Practice is the structuring, implementation and the enforcement not only of rules, policies and the like but also of procedures, practices and management structures, i. e. the appropriate organization of control to effectively prevent violations of law. In this organizational respect Corporate Governance and Corporate Compliance are linked to each other. Therefore, attorneys specializing in Corporate Governance Law often also advise on Corporate Compliance projects, even though they frequently liaise with other specialists and work in multidisciplinary teams on suitable policy and risk management systems, internal control systems etc.
German law governing Corporate Governance & Compliance practice is complex and may differ substantially from the standards abroad. Therefore, in particular foreigners dealing with German entities should solicit competent advice in this respect.
Corporate Law Definition
Corporate lawyers advise partnerships and corporations in all legal and commercial matters beginning with the founding of a company via corporate restructuring measures to the liquidation of the entity. Therefore, a corporate lawyer has to deal, among other legal issues, with the choice of the entity’s legal form based on the entrepreneurs’ business, drafting articles of association, rules of procedure, and shareholders’ agreements. Following the company’s establishment, counselling includes a variety of legal advice to shareholders, the management and the supervisory board regarding the preparation of annual general meetings, capital raising and maintenance measures, commercial contracts with the client’s customers and suppliers, but also legal representation in court or arbitration proceedings with respect to disputes between shareholders and the company’s executive bodies. A corporate lawyer is expected to be familiar with restructuring and reorganization measures an entity might face during its existence like mergers and acquisitions, splits, spin-offs, or the change of legal form. These measures might arise in a very complex surrounding, such as in the regulated sector or in distressed situations.
For quite some time now, a lawyer advising on corporate law in the German market is required to have a thorough knowledge of private equity and venture capital transactions, meaning cross-border acquisitions, management buy-outs, investors’ participation, and shareholders’ exit strategies and due diligence reporting. In contrast, stock corporations will demand a more capital market-oriented experience, so that the advisor shall be in a position to assist with public takeovers, squeeze-outs, and delisting. Another steadily growing important field of corporate law covers corporate governance and compliance analysis, which means helping management and supervisory boards to avoid legal infringements and to comply with reporting obligations and insider-dealing regulations.
In most law firms, it is the corporate lawyer who is a company’s contact person. Consequently, it is the corporate lawyer’s task to build a team of experts covering the respective fields of law just like tax, real estate, labor, insolvency, or litigation, always having in mind to suit the client’s business needs by delivering cost-efficient, innovative, and effective solutions.
Criminal Defense Definition
Criminal Tax Practice
Criminal Tax Practice Definition
Data Security and Privacy Law
Data Security and Privacy Law Definition
Debt & Equity
Debt & Equity Definition
With respect to corporate financing there are two main strategies to capitalize a company: debt & equity. Both terms refer to the origin of capital on the balance sheet.
Equity describes the amount of funds contributed by the owners (the shareholders) plus the retained earnings (or losses). Equity is further identified as common stock with regard to the funds which match the registered capital and as additional paid-in capital where it exceeds the registered capital. The real advantage of equity financing is the possibility of a company to acquire funds without incurring debt: The purchasers of equity instruments (i.e. stocks/shares) do not gain repayment and/or interest payment claims against the company, but an ownership interest and therefore participate in the company’s future profits and risks. This participation can be realized by selling the stocks/shares on a secondary market (which may be either regulated or not) and/or – potentially – through dividend payments.
Debt characterizes the borrowing of money by one party from another which has to be repaid, usually with interest (e.g. bank facilities, loans or bonds). Debt instruments do neither grant an ownership interest nor do the respective creditors participate in the company’s future profits, but can solely claim the aforementioned (re-)payments. Debt instruments are deemed to be less risky for investors, since their claims rank prior to the ownership interest of shareholders in case of insolvency proceedings. Within the debt instruments the seniority varies between secured debt – i.e. debt backed by assets – and unsecured debt.
Notwithstanding the above mentioned, a clear distinction between debt and equity is not always possible, since mezzanine instruments combine elements of both. (Non-exhaustive) Examples are options and warrants which enable the creditor to convert debt-claims into ownership (i.e. shares) under certain circumstances and shareholder loans which constitute repayment claims, but are often subordinated in German insolvency proceedings. The dividing line between debt and equity is also blurred by legal provisions which allow for a (non-)coercive debt-equity-swap (cf. the respective provisions of the German Debenture Bond Act (SchVG) and the German Insolvency Code (InsO)). Ultimately, even preferred equity combines elements of both debt and equity as preferred stockholders benefit from a fixed dividend but generally are subordinated to creditors.
The areas of legal advice with regard debt & equity basically comprise all transaction related activities, from financings to mergers & acquisitions and eventually to restructurings.
These practice areas are open for nominations but are not yet included in our publications.
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