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Administrative Law Definition
Advertising Law Definition
Appellate Practice Definition
Arbitration and Mediation
Arbitration and Mediation Definition
Arbitration and mediation are methods of resolving disputes which can provide confidential and cost-effective solutions through processes tailored to the needs of the parties.
Arbitration is regulated in Spain by Act 60/2003 of December 23 as a method of resolving disputes by an independent and impartial arbitrator or arbitral tribunal. Parties typically would agree to leave separate ordinary jurisdiction and to submit a dispute to arbitration by including an arbitration clause in a contract. Arbitration allows the parties to tailor proceedings and to choose the arbitrators, the applicable law, the venue, the language, and the time within which the dispute is to be solved. It generally ends with a binding award issued by the arbitrator, which is enforceable before national courts.
Lawyers advise clients on every step of the arbitration, including the drafting of the arbitration clause, the selection of the arbitrators, the drafting of written submissions, the assistance in the preparation of witnesses’ and experts’ depositions and cross-examinations and the enforcement of the arbitral award. Additionally, lawyers are usually the best qualified to act as arbitrators.
Mediation is a structured process whereby two or more parties attempt to settle a dispute with the assistance of a mediator, who tries to facilitate an agreement. According to Law 5/2012 of July 6, 2012, mediations may be either voluntary (normally as a result of mediation clauses in contracts) or court-mandated. In contrast to arbitration, the parties are entitled to end the mediation process voluntarily at any moment and no agreement may be imposed by the mediator to them. However, if an agreement is reached it shall be binding and enforceable before national courts.
Mediation has had little development in Spain and consequently there are few mediators and mediation specialized counsels. However, the acceptance of mediation as a dispute resolution method has expanded in the past few years and this has resulted in the development of mediation training centers and the increase both of expert mediators and specific mediation practice areas in law firms.
Asset Finance Law
Asset Finance Law Definition
Automotive Law Definition
Aviation Law Definition
Legal services related to aviation cover all aspects affecting the aeronautical sector, from acquisitions, sales, and financing, to administrative and regulatory issues. Advice on aviation litigation, insurance, and reinsurance is also a great part of this practice.
We perform services for aviation carriers and all types of related providers: handling, catering, maintenance of aircraft, fuel supply service providers, travel agencies, and GDS. From this field of law, legal advice is also provided to all actors working in the field of airport maintenance facilities, as well as governments in charge of public infrastructures, financial institutions with aeronautical interests, and airlines.
Aviation litigation is a highly specialized area that requires knowledge of aviation international laws, aviation insurance, and air accidents, as well as commercial disputes. Claim for damages in aviation accidents is one of the most delicate areas of specialization in aviation law and we are experts in this area. Commercial transactions involving aircraft usually raise issues that also affect international law particularly related to the granting and enforcement of security interests and protection of national regulations.
This specialization covers from commercial transactions involving joint ventures, M&A, a wide diversity of contracts, tax planning, insurances among others, to litigation and arbitration related to injuries, cargo claims or insolvency, and contractual issues related to airlines and debtors. Franchises and constitution of airlines are also covered by this practice.
Regulatory compliance is also a big part of the aviation law practice, due to antitrust issues with international elements. The knowledge of Competition Law is also a need for lawyers working in this field of law.
Public-private partnership projects often include tender documentation support, preparation of concession/project agreements, financing, construction contracts, sub-contracting documentation, and legal advice on land and real estate aspects of a great variety of transactions.
Customer loyalty and its programs, as well as e-commerce issues related to the online sale of airline tickets are also a subject of legal advice.
Banking and Finance Law
Banking and Finance Law Definition
Bet-the-Company Litigation Definition
Biotechnology Law Definition
Spanish hospital doctors and scientists are active investigators in Biotechnology related health matters, usually leading to new intellectual property assets.
Scientific investigation, particularly that involving the use of human samples, is highly regulated in Spain, as occurs in many other countries, involving both national and regional laws and rules, connected with Administrative rules and IP rights protection.
Doctors and researchers, sometimes even Transfer Offices staff, are not familiar with that complex regulation which includes very different legal fields such as those related with the Intellectual Property and the use of human samples in biomedical research, among others.
Research in health public institutions leads to results that need to be protected and transferred. There is a long list of questions that arise in this process among which are the following:
- identify the true inventors/creators and owners
- detect previous contracts assigning rights over the results and the IP derived therefrom
- identify assets to protect
- decide the best way to protect those results
- stablish joint ownership agreements, if any
- negotiating and drafting transfer agreements with industry
Lawyers can be very helpful throughout that process, making easier the work of researchers and transfer staff and ensuring the entire process is done within the legal framework jurisdiction.
Use of human samples in biomedical research
The use of biological samples for biomedical research is subject to very strict legislation in Spain and its failure can undermine the publication of scientific results and the transfer options thereof.
Researchers must be sure to comply with the legislation in force regarding obtaining human samples and subsequent conservation and uses thereof, particularly regarding to the following:
- Patient consent
- Samples conservation in registered collections or Biobanks
- Permitted uses: only for a particular research project, a research field or for any health investigation
Lawyers can be very helpful assessing researches and technology transfer offices staff to obtain and maintain human samples in compliance with rules and legal requirements, from the design of the research project protocol to the final step of transferring research results to industry.
Broadcasting Law Definition
The EU Audiovisual Media Services Directive (Directive 2010/13/EU), as the main instrument of the European audiovisual regulatory policy, calls on Member States to reform their legislation on this field with the aim of harmonizing and reforming the different regulations covering the audio/visual sector. The Audio/visual Media Services Directive provides a more general but flexible regulation in comparison with the Television Without Frontiers Directive (Council Directive 89/552/EEC). The new rules respond to technological developments and represent the opportunity to improve common minimum standards in Europe for traditional broadcasting and emerging on-demand audio/visual media services. In sum, the Audio/visual Media Services Directive provides the key concepts on audiovisual regulation based on the objective of convergence of technologies, businesses, contents, and services.
In Spain, the general law regulating audiovisual communication services is the General Law on Audiovisual Communication (Law 7/2010, May 31). It created a new supervisory body, (Consejo Estatal de Medios Audiovisuales). Regulatory bodies with similar functions already exist in some Autonomous Communities.
The Law has a chapter entitled Basic Rules for Audiovisual Communications, which sets forth the rights both of consumers and of audiovisual media service providers. It sets out a group of rules concerning program sponsorship, advertisement and product placement. The Law only allows the advertising of alcoholic drinks of less than 20 percent. It also sets out rules concerning exclusivity over certain content for broadcasters, as well as the obligation to broadcast free-to-air the whole or part of this content when it is considered to be of public interest. A list of events which fulfill this criterion includes, among others, the Champions League Final, the Olympic Games and the Formula 1 Grand Prix that take place in Spain.
Other acts covering the audiovisual sector are:
- Law 10/2005, on urgent measures for the promotion of digital terrestrial TV, liberalization of cable, and promotion of media pluralism;
- Law 17/2006, on national public radio and TV;
- Law 55/2007, on Cinema; or
- Decree 1/2009, on urgent measures for the telecommunications sector.
Successive governments have approved diverse regulations to face concrete situations as a consequence of new technological changes occurred during the past years.
Capital Markets Law
Capital Markets Law Definition
Civil Rights Law
Civil Rights Law Definition
Civil law is the branch of private law which regulates personal or property relations between natural persons and legal persons in their private sphere, on the basis of the attribution of legal capacity (or personality) and ability to act. That is why the Civil Law regulates essentially the most general and everyday relationships of life of people, people considering themselves as subjects of law.
In addition, civil law, as a system of legal institutions, is the central branch of private law and the backbone of public law, as their project concepts and institutions with greater or lesser intensity in all branches of law.
Therefore when facing a problem such as, for example, personal issues, Obligations and Contracts, non-contractual liability, rights in rem, you must have an extensive knowledge of Spanish civil law and numerous other Spanish laws that, depending on the particular application case is necessary. Thus, although it is known the importance of civil law by the size of basic text where civil law is contained, the Civil Code, much of its content is also found in a number of special laws (law of civil registration, mortgage law, horizontal property law, law of urban leases, etc.).
It is also necessary to consider the special law, which in Spain is understood that the set of legal systems of private law apply in some Autonomous Communities, coexisting with the national Civil Code, such as the statutory law of Aragon, Cataluña, Navarra, Basque Country, and Galicia.
Finally, we must also know the "Community civil law" or "Community private law" that is private law or civil law from the European Union and which stems from regulations, directives, or judgments of the European Union and which directly affects the Spanish Civil law, either state, autonomous, or special leasehold.
Closely Held Business Practice
Closely Held Business Practice Definition
Communications Law Definition
The practice of Communications Law covers a wide range of legal aspects affecting the establishment and operation of electronic communication networks and the provision of electronic communication services of any type of content (voice, text, data, sound, video, radio, television, applications, or any other information or online services) by any existing technology and equipment (wireline, wireless, fixed, mobile or satellite, point-to-point, broadcasting, analogue, or digital). The ever-changing and global nature of communications involves not only domestic law but also regulation from the European Union and other international law.
A significant part of this practice concerns compliance with sector-specific regulation (licensing and authorisation, access and interconnection, numbering, spectrum, rights of way, network security and interception, price and other contract terms, mandatory services, reporting, and other regulatory obligations) and representation before communication regulatory authorities. However, communication lawyers should also assist in other regulation areas relevant to communication services and networks: personal data protection, consumer rights, planning and environmental protection, public procurement, electronic commerce, media regulation, and competition law. Being a sector in constant evolution with emerging technologies and overlapping markets, regulatory advice on prospective legislation and lobby with the policy makers are part of this legal practice.
The transactional part of communications law encompasses negotiation of all type of agreements with other competitors (access, interconnection, roaming, infrastructure and network sharing, establishment of technical standards), providers (rights of way, construction, rights of use and leases, equipment purchase, maintenance services, outsourcing, technology licences, content licences, agency and distribution, private equity and financing), and customers (general contract terms, resale, managed services, service level agreements). Communication lawyers also play a major role in mergers and acquisitions, joint ventures, and corporate advice to the communication industry.
Communication lawyers cannot disregard dispute resolution. The correct management of disputes range from early assessment review, negotiation, mediation, and other alternative dispute resolution techniques to final arbitration or litigation. Dispute resolution may require the intervention of regulatory authorities or even litigation against such authorities. Expertise in the communication industry contributes to find agreeable business solutions to avoid conflict efficiently.
The practice of Communication Law inextricably reflects business, regulation, and technology intertwined in the communication industry.
Competition / Antitrust Law
Competition / Antitrust Law Definition
Construction Law Definition
Construction law encompasses all legal aspects related to all kind of building and installation construction processes.
It comprises, without limitation, advice on the following aspects: (i) identification, negotiation, and acquisition of soils or required rights in order to locate buildings and installations and, where appropriate, their asset structure; (ii) obtaining funding and establishing guarantees required by financial institutions for those entities which do not have their own resources; (iii) recruitment with agents involved in the construction process such as project planners, promoters, technicians, contractors, testing laboratories, insurance companies, etc.; (iv) identifying and applying for the required construction and building opening permits; (v) drafting the legal descriptions in order to register the constructions in the public registry; (vi) commercializing and sale of real estate products resulting from construction process.
One of the main problems arising from this area of law is the complex web of rules that have an impact in this field. Even though Construction Law is mainly based on Civil Law (in its broadest sense) and on Administrative Law, in order to provide proper advice, other fields of law closely linked to a project's success, such as Urbanistic and Environmental Law, need to be taken into account.
Moreover, private initiative plays an important role in this area of law, but it should be noted that there are important limits fixed for some aspects related to safety, efficiency, historical heritage, public domain, etc.
Furthermore, the construction sector has a very high dispute rate, where the most common conflicts are related to legal accountability of those agents involved in the construction process as a result of construction defects and disputes arising out of execution and acceptance of works.
Public works, understood as construction works promoted by Public Administrations or public sector bodies, are subject to public procurement law, the regulation of which responds to purposes and principles other than those applied in the private sector.
Corporate and M&A Law
Corporate and M&A Law Definition
As is the case with all specialist fields, there are two sides to company law work: preventative work and advisory (defence) work in the case of a dispute. Preventative work will, obviously, help avoid some conflicts by ensuring orderly compliance with the company’s obligations, something that is becoming more and more important given the transparency requirements of Mercantile Registers.
However, in company law, unlike other specialist fields, the advisory (defence) function in the case of conflict often does not depend upon whether the preventative function has been properly performed, but instead upon tensions arising within companies between majority shareholders attempting to impose a resolution and dissatisfied minority shareholders, who then seek protection of their rights.
Mergers and Acquisitions (“M&A”) are one result of the trend toward the globalisation and concentration of businesses to boost their strength and competitiveness, a trend that also has a knock-on negative effect on the ability to continue to guarantee a free, healthy, and properly competitive market. Regulatory bodies must be increasingly aware of market distortions, as mergers and acquisitions are occurring between ever-larger undertakings and creating even bigger end combinations, something that makes it even harder for remaining competitors to survive. And there is no sign of this trend abating.
Although closely associated with company law with regards to its implementation aspects (given that the requirements for the calling of Board and Shareholders’ General Meetings and their holding, as well as the adoption of the relevant resolutions), specialising in M&A requires the prior management and coordination of an entire range of other specialist fields to verify the status of different aspects of the undertaking to be acquired and to establish whether things really are as they are presented, whether there are lurking dangers or hidden problems, whether the operation is suitable and/or viable, etc. This process is commonly called “due diligence”.
Checks will be carried out on aspects ranging from human resources, environmental matters, contractual relations, quality standards, planning issues, and activity permits for the undertakings to be merged or acquired. To do this, there are now sophisticated programs that create a virtual data room in the cloud, accessible to both those who upload information and those whose job it is to check it, each with the permission levels required to access the different areas of the data room, which speeds up the data processing and decision making processes.
Corporate Governance & Compliance Practice
Corporate Governance & Compliance Practice Definition
Corporate governance contributes positively to improve management of companies, since it can enhance competitiveness and long-term sustainability, and therefore it could be said that corporate governance also brings positive effects for society as a whole.
Good corporate governance is reflected in the responsibility of the company, cooperating with both EU and domestic rules in order for companies to observe certain criteria or recommendations.
For instance, in Spain the stock market authority has recently published a practical guide providing a set of criteria and guidelines for companies operating in the market, under clear and quality explanations warning when these companies might be moving away from the above mentioned recommendations.
EU rules require companies to include in its annual report a statement on corporate governance if their shares are publicly traded on a regulated market of any EU Member State.
In practice, the corporate governance statement should include information about the corporate governance system, such as the corporate governance code which is applied by the company, the internal control systems and risk management, the shareholders and their powers, the rights of shareholders, board of directors, management and supervisory bodies and their committees.
This information may be useful for investors and certainly eases any investment decision. It also strengthens the confidence of investors in companies in which they invest, since they can count with a more transparent market, plus it also improves companies’ image.
On the other hand, according to these rules, companies that deviate from the provisions of corporate governance rules will have to explain in their corporate governance statement which parts of the rules have not been accomplished and the reasons for it. On several occasions such non-accomplishment may have also been done consciously, should it allow more efficient management of the company.
Ultimately, all of the abovementioned rules aim to promote a culture of responsibility, trying to make companies make a thorough examination of corporate governance regimes.
In a similar vein are those compliance programs whose approach refers to criminal risk management of the company.
With regards to these, compliance programs involve the establishment of an internal company regulation in order to ensure compliance with the criminal law of each country.
In addition, the integration of these programs provide for the participation of the compliance officer to ensure the proper implementation of the compliance program.
Criminal Defense Definition
Those not acquainted with the peculiarities of Spanish criminal proceedings might be surprised by the existence of the private prosecution: the victim’s own right to bring charges. Thus, in Spain, Criminal Law practitioners not only offer defense counsel to the accused, but can also represent the victim in seeking civil damages ex delicto within the very same criminal proceedings, as well as requesting the imposition of criminal penalties on the defendant (even if contrary to the opinion of the public prosecutor).
The practice of Criminal Law can broadly be divided in two on the basis of the nature of the offenses that counsel is retained to deal with: on one hand non white-collar crime (e.g. theft, robbery, drug related offenses, hate crimes, assaults, sexual assaults, homicides, etc.) and on the other white-collar crime (e.g. fraud, bribery, embezzlement, insider trading, identity theft, money laundering, etc.). Not all Criminal Law lawyers offer counsel on non white-collar crime matters, usually due to their firm’s policy, particularly in firms with multiple areas of practice. Penalties under Spanish Criminal Law range from a fine to imprisonment and in cases of criminal corporate liability may even result in the judicial dissolution of the legal person.
For these reasons it is essential to obtain expert and specialized counsel from the very moment that criminal proceedings are directed against a suspect or conversely, a person is the victim of a crime. The pre-trial investigation phase is conducted by an examining magistrate who is ultimately responsible for ruling between the dismissal of the proceedings or moving forward to trial. Actions undertaken during this pre-trial investigation phase are of paramount importance to the client as they can be instrumental in the examining magistrate decision and affect the imposition of precautionary measures such as the freezing of assets or preventive detention.
Under Spanish law, trials are held before a single judge (other than the one responsible for the pre-trial investigation) or a panel of several judges, depending on the severity of the penalty faced by the defendant. Jury trials are limited to a set number of specific offenses. Naturally, the need for expert counsel becomes even more important at the trial stage and is also essential in order to conduct possible appeals before higher courts, up to the Supreme Court or the Constitutional Court, which require a high degree of technical thoroughness that only practitioners specialized in this specific field of law can offer.
Finally, it should be pointed out that in recent times the requirements on companies regarding self-regulation have been steadily increasing, creating the need for legal services provided outside the context of criminal proceedings. On top of economic and reputational risks companies have traditionally faced when it came to criminal matters for which they could be civilly liable, companies are now faced with new sets of risks arising from the introduction of direct criminal liability of legal persons (introduced in Spanish Law in 2010). Consequently, law-abiding companies wishing to avoid or mitigate potential criminal responsibility may find it essential to retain the services of a white-collar crime lawyer to design and implement the required corporate compliance programs or to conduct internal investigations.
Debt & Equity
Debt & Equity Definition
In unfavorable economic circumstances of both structural and cyclical, it is very common that the balance sheets and operating accounts of companies resent, usually resulting in (i) the accumulation of losses in closures -monthly, quarterly, and annually; and (ii) in cash tensions, that translates into unpaid obligations with third parties.
These two circumstances force the Organs of Administration of the Companies subject to Spanish Law to a special task of control and surveillance for react and, thus, take appropriate measures to remove their potential personal liability, under the mechanisms established in the Real Decree Legislative 1/2010, of July 2 (in forward "Capital Companies Law") and in the Bankruptcy Law 22/2003, of July 9, (in forward " Bankruptcy Law").
The legal mechanisms to avoid such liability which they pass through determine this two different situations: (i) if the Company is under a Cause of Dissolution and must re-balance its debt to equity to accomplish with legal requirements; or (ii) if the Company is under an Insolvency Situation and must file the Insolvency Proceedings before the Court (because the insolvency is in a deeper statement and means the impossibility of payments on regular basis for a long time):
(i) Existence of Causes of Dissolution: Mechanism: Re-balancing equity in cases of severe equity loss:
The Board of Directors has the obligation to supervise and direct the accumulation of losses that reduce its assets to less than half of its share capital. Otherwise, the Board has the liability derivation risk corresponding to all those unpaid debts generated after the occurrence of such cause (Article 363.1.e Capital Companies Law).
The Capital Companies Law establishes inescapably to restore the Company’s equity, through the corresponding increase or reduction of capital mechanisms, to remove the Board of Directors liability. If the Board of Directors does not reestablish the Company’s equity, avoiding being in Dissolution Cause, it would be economically responsible (through derivation of responsibility) for the unpaid debts generated after the occurrence of the Dissolution Cause.
Another important point is that equity re-balancing operations will not avoid the responsibility of the Board of Directors in Company’s Insolvency Situation, understood as the impossibility of paying on regular basis in a prolonged period of time.
In such a case, the Board will only be exonerated of presumption of guilt, contained in Article 165.1 joint to Article 164.1 Bankruptcy Law, if it uses the mechanism of Article 5bis Bankruptcy Law - Preparatory Insolvency Proceedings - in order to: A) reach a payment agreement with its suppliers and creditors that remove the Insolvency Situation or B), to file an Insolvency Proceeding if the payment it’s not good enough to remove the Company’s Insolvency Situation.
Article 165.1 and 164.1 Bankruptcy Law allow the Court to declare an Insolvency Proceeding as guilty and derive economic responsibility to the Board of Directors in the event that the Insolvency Proceedings was submitted extemporaneously. It means, two months after the Board knows, that the Company is under an Insolvency Situation.
(ii) Existence of an Insolvency Situation: Mechanism: As commented, a Company is under an Insolvency Situation when it cannot afford the daily payments for a long period of time.
Under such a situation, the Board has two months to submit the Preparatory Insolvency Proceedings (of Article 5bis Bankruptcy Law) or, where appropriate, the corresponding Insolvency Proceedings.
If the Insolvency Proceedings was submitted out of time, the Court could declare the Insolvency Proceeding as guilty and derive economic liabilities to the Board (Article 165.1 and 164.1 Bankruptcy Law).
In conclusion, the responsibility of the Board of Directors established in the Capital Companies Law by the concurrence of a Dissolution Cause for losses is different and independent from an Insolvency Situation. In this sense, a Company under Dissolution Causes:
- If it re-balances equity and is normally continuously paying creditors (because of either creditors’ agreements or banks credit), it would avoid the Board liability established in Article 363.1.e Capital Companies Law and in Article 165.1 and 164.1 Bankruptcy Law.
- If the Board decides just to reestablish equity but is not aware of the impossibility to afford the daily payments and is not submitting the Insolvency Proceedings to the Court in the two months period, the economic responsibility of the Board, established in in Article 165.1 and 164.1 Bankruptcy Law, will persist.
Defamation Law Definition
Derivatives are financial instruments whose value derives from the price movements of another asset, called "underlying asset."
Basically, a derivative is a contract term in which all the details are set out at the time of the agreement, while the effective exchange occurs at a future time.
In more formal terms, we can say that a derivative is a financial instrument whose value depends on the price of an asset (a bond, an action, or a product), of an interest rate, an exchange rate a index (stock, prices, or other), or any other variable quantifiable (which will be called underlying variable).
There are basically four types of financial derivatives: Forwards, Futures, Swaps, and Options. However, among them they can be combined, which means they can form more complex instruments that serve to better the financial needs of users.
In our practice area, more problems arise from swap contracts.
A swap is a financial contract between two parties agrees to exchange future cash flows according to a preset formula. Contracts are made in order to meet specific needs of those who sign the contract.
The most common type of swap is the interest rate by which interest flows are exchanged in the same currency in certain previously agreed dates. This type of swap is used to transform cash flows to fixed-rate cash flows to floating rate or vice versa.
When you go to hire a swap you must take special care in how it is contracted and the information received, and ensure the details and risks of the operation are known, since it is a high-risk product.
Therefore, a problem you have with a swap must take into account both the operation of the product and the requirements established by the “Ley de Mercado de Valores” entities providing advisory services, as knowledge of civil law when attempting to request the annulment of the swap agreement or resolution thereof.
Therefore, being a global assessment, the defense arguments combine procedural, legal, and substantive issues, as well as forensic tests to determine the nature and legal compliance of financial products in dispute.
DUI/DWI Defense Definition
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