BLT: March 2014

Taxation

The Importance of Bilateral Investment Treaties (BITs) When Investing in Emerging Markets

This article discusses what bilateral investment treaties (BITs) are, how investors can enforce claims under BITs, and why using a Dutch or Curaçao entity and the associated extensive BIT treaty network of the Netherlands and Curaçao may prove useful when investing in countries that are perceived to be politically unstable. This article will also briefly address BIT developments in the EU.

Alternative Dispute Resolution

Mediation as a Dark Art: A Mediator’s Message to Parties Seeking to Settle the Difficult Case

David W. Henry

Mediation is a powerful tool for resolving complex cases, but better mediation advocacy and preparation is needed for lawyers and mediation participants. There are articulable steps to be taken by attorneys in the weeks preceding mediation that will optimize the process and engender better mediation outcomes.

Alternative Dispute Resolution

Who Decides: The Court or the Arbitrator?

Courts have concluded that, unless the parties have agreed otherwise, “procedural arbitrability” will be decided by the arbi¬trator and “substantive arbitrability” will be decided by the court.

Business & Corporate

KEEPING CURRENT: In Stanford-Related Cases, Supreme Court Allows State-Law Fraud Class Actions, Limiting the Extent of Federal Preclusion

On February 26, 2014, the Supreme Court held that state-law fraud class actions brought against attorneys, insurance brokers, and others arising from Ponzi-scheme claims involving R. Allen Stanford could proceed. In Chadbourne & Parke LLP v. Troice, the Court held that such claims were not prevented by the Securities Litigation Uniform Standards Act (SLUSA). The Court’s decision narrows the extent of the preclusive effect of SLUSA on state-law fraud claims that bear some relationship to nationally traded securities.

Business & Corporate

KEEPING CURRENT: Supreme Court Extends SOX Whistleblower Protection to Contractor Employees

On March 4, 2014, the U.S. Supreme Court issued its opinion in Lawson v. FMR LLC, No. 12-3, ruling that Section 806 of the Sarbanes-Oxley Act (SOX), which bans retaliation against whistleblowers, applies not only to employees of public companies but also to employees of contractors and subcontractors who carry out work for public companies, significantly expanding the coverage of SOX.

Business & Corporate

DELAWARE INSIDER: Great Hill: To the Survivor Goes the Privilege?

Roxanne L. Houtman

In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, the Delaware Court of Chancery recently considered whether the attorney-client privilege over pre-merger communications between a target company and its counsel passes to the surviving corporation in a merger governed by Delaware law. The decision highlights the possibility that pre-merger communications made with the expectation that they would be privileged could wind up in the hands of an adverse party, and provides guidance on how to avoid this unintended consequence of a merger.

Business & Corporate

TRAINING FOR TOMORROW: Teaching the Expert Who is Leader of the Band

Gerald A. Klein

Most lawyers are ineffective in presenting expert testimony. Business lawyers are often too dependent on experts to decide what testimony to present or how to present the expert testimony. The purpose of this article is to help trial lawyers recognize that only the trial lawyer can decide the most effective use of expert testimony and to show the best way to present it.

Business & Corporate

ETHICS CORNER: Unauthorized Practice of Law and the Transplanted In-House Counsel

Michael J. Sweeney

George, an in-house lawyer employed by Acme Corporation, is licensed to practice law in New York. Fifteen years ago, George moved to Acme’s headquarters in Chicago, where he has worked ever since. He is not a member of the Illinois bar. Is George engaged in the unauthorized practice of law, and if so, what might be the consequences?

Business & Corporate

MEMBER SPOTLIGHT: Invocation to the ABA House of Delegates: February 10, 2014, by Maury B. Poscover

Maury B. Poscover, Past Chair of the Business Law Section, delivered the invocation at the February 10, 2014, session of the ABA House of Delegates during the Midyear Meeting in Chicago. Just prior to the invocation, the ABA played host to a naturalization ceremony for 24 new U.S. citizens.

Business & Corporate

Inside Business Law

Increasingly over the last few years, businesses and their lawyers have been grappling with the issue of businesses’ social responsibility and sustainability. Within that time period, numerous committees within the Business Law Section have undertaken initiatives and presented CLE programs aimed at keeping Section members at the heart of developments in this area of the law. This month's “Inside Business Law” highlights some of those efforts and introduces a new Corporate Social Responsibility Law Task Force, which has been formed to coordinate the Section's efforts.