Showing posts with label Legal. Show all posts
Showing posts with label Legal. Show all posts

Tuesday, January 27, 2009

The KPMG SOX 404 compliance Institute


404 Institute members have always played a vital role in determining our agenda. Five years after the adoption of Section 404 became mandatory; our members report that compliance activities are continuing to be integrated into the corporate environment. As a result, members previously focused entirely on compliance are taking on increasingly operational roles. Given these dynamics the Institute is expanding its focus to meet your evolving needs by continuing to offer guidance and thought leadership on the broader set of financial management issues that affect you.

To help address your needs, we will cover a range of topics in addition to section 404 compliance - including financial reporting, and risk and controls. This will enable us to continue providing you with an open forum where ideas can be exchanged and leading practices developed on issues that impact you most.

We invite you to explore our updated Web site to find the wider range of topics and events we're scheduling to help you address the broader scope of issues you face.

Saturday, January 3, 2009

IFRS Around the World

Updated Map of Status of International Financial Reporting Standards 3/1/2009


  • RED IFRS APPROVED
  • ORANGE STATED MOVE TO IFRS ADOPTION - BRAZIL, CANADA...
  • YELLOW ADAPTING TO IFRS - USA, MEXICO, CHINA


ORIGINAL POST 27/08/2007



















  • The US SEC announced that it will issue a Proposing Release this summer that will request comments on proposed changes to the SEC’s rules. The changes would allow the use of IFRSs as issued by the IASB in financial reports filed by foreign companies registered in the US. Currently, foreign companies are required to reconcile their financial statements according to US generally accepted accounting principles (GAAP). The SEC also plans to issue a Concept Release on the question whether all registrants (including US companies) should be able to report under either IFRSs or US GAAP.

  • The Council of the Institute of Chartered Accountants of India decided in July to adopt IFRSs with effect from the accounting periods commencing on or after 1 April 2011, for public interest entities such as listed entities, banks, insurance and large entities.


  • China announced that its central-level State-Owned Enterprises and large to mid-scale companies will all adopt China’s new accounting standards that comply with IFRSs by the end of 2009. The decision does not include SMEs, which make up the majority of China’s companies.

  • The Brazilian Market Regulatory Agency (CVM) published in July an instruction that openly traded Brazilian companies will have until 2010 to present their consolidated statements in accordance with IFRSs. From 2007, listed companies can opt to present their consolidated financial statements based on IFRSs.

  • The Korean Financial Supervisory Commission and the Korea Accounting Standards Board unveiled a roadmap for the adoption of IFRSs at a ceremony in Seoul. All companies in Korea, apart from financial institutions, will be permitted to apply IFRSs, as adopted by Korea, by 2009. Full adoption of IFRSs for listed companies, including financial institutions, will become mandatory by 2011.

  • Representatives of the IASB have attended the regional standard-setters meeting in Manila and met standard-setters from Brunei, Indonesia, Malaysia, Philippines and Taiwan.

The IASC Foundation held its third IFRS conference in Zurich on 23 and 24 May. Nearly 400 people from 42 countries attended. ‘Delegates appreciate the opportunity to discuss theirspecific circumstances with Board members and senior staff’, said Michael Wells, Senior Manager of the IASC Education Initiative, who organised the conference. ‘Our conferences are aimed at anybody who is involved in or affected by IFRSs’, underlined Wells. ‘It provides the opportunity to meet and discuss IFRS developments with IASB members and project managers.’ The Zurich conference was opened by Sir David Tweedie, Chairman of the IASB. The first day was dedicated to presenting views on IFRSs from the analyst and preparer community.Presentations were given by senior representatives from Novartis, UBS and Standard & Poors,followed by discussion rounds. Keynote speaker for the conference was the Chief Accountant of the US Securities and Exchange Commission (SEC), Conrad Hewitt. His speech focused on the underpinnings of the international financial reporting system. Of particular interest were the next steps the SEC intends to take relating to the acceptance of IFRSs.The second day focused on the IASB’s active agenda projects. The programme began with a general presentation on the Board’s recent activities followed by five intensive break-out sessions on developments in major projects: the conceptual framework, the reporting entity,consolidations and joint ventures, financial statement presentation, and business combinations.‘Feedback is invaluable, and has been very positive’, said Wells. He added ‘We listened to comments from past conferences, and this year extended the duration of break‑out sessions to allow more interaction. Furthermore, we held separate half-day pre-conference workshops on specialised aspects of financial reporting.’ In August this year the conference and workshops will, for the first time, take place in Asia, being hosted in Singapore. ‘We have decided to change location every year to underline the Foundation’s global objective’, said Wells. But this is not the only effort to be inclusive. ‘We also offer discounts of up to 70 per cent to people from emerging and developing countries’, he added.

Monday, December 1, 2008

2008 FinTech 100: Overview

There can be little doubt that this year has been one of the most challenging on record for the financial services industry. Read original article.

With a growing number of banks failing and many more struggling, investing in technology may not be a top priority — or even feasible in some cases. That means that the companies that are ranked in the fifth annual FinTech 100 Special Report are also facing challenges.

Some financial companies, of course, will see this turbulent period as a good time to upgrade. Others have been forced to pare back their spending. And some are looking for cost-effective ways to install the systems necessary to comply with industry regulations. These changes will force FinTech vendors to become more creative in how they approach potential customers. (See related story.)

One major wild card in the FinTech sector will be the efforts to overhaul banking regulation. In March, Treasury Secretary Henry Paulson called for drastic changes at the agencies that oversee the financial sector. By October, with banks increasingly burdened by subprime mortgage debt they could not get off their books, he proposed a massive bailout aimed at freeing up the flow of credit and stemming the industry's cascading losses.

As this report goes to press, it is still unclear exactly what these plans will require. But certainly there will be far-reaching changes affecting all sectors of the financial services industry — banking, capital markets, and insurance. Prudent institutions and vendors will try to predict and plan for these changes.

Regulatory change typically spurs investment in areas such as analytics, reporting, document management, and core systems. Vendors in these fields are likely to benefit once new regulations take effect. (See related story.)

Given that much of the current crisis has been linked to poor underwriting decisions, it's not surprising that one group of vendors making gains in the FinTech rankings provides tools designed to improve analytics, decision-making, and risk management. (See related story.)

The largest of these firms are SAS (which jumped from 19th to 13th on this year's FinTech 100 list), Experian Group Ltd. (which jumped from 27th to 14th), Equifax (from 24th to 16th), ChoicePoint (from 25th to 17th), and Fair Isaac (from 23rd to 19th). Each of these firms provides technology designed to improve decision-making by combining data elements with strong analytics. This trend was visible last year, remains strong this year, and is expected to continue next year. The technologies offered by these firms have matured, and the need for them has become even more critical.

With hard times facing the banking industry, many FinTech vendors have started diversifying into other industries. CGI, Unisys, and Infosys have reduced the percentage of their revenue generated from the financial services sector, to the point where that percentage now is less than a third. Since that is the cutoff point for companies to earn a spot on the FinTech 100, all three made the jump to the Top 25 Enterprise Companies list. Smaller firms such as Stratus Technologies and Comsys also left the FinTech 100 for that reason.

Since the current rankings are based on 2007 data and vendors are continuing to look at other markets, it seems prudent to expect that trend to continue in next year's rankings.

Acquisitions removed some other companies from the FinTech roster, including Reuters, Bisys, CheckFree, Corillian, eFunds, i-flex, Kanbay International, and Digital Insight.

Fiserv returned to the top of the FinTech 100 list. After topping the list for the first three years, it was nudged to second place last year by Fidelity National Information Services. With Corillian (89th last year) and CheckFree (20th last year) now part of Fiserv, its FinTech revenue exceeded $4.3 billion, reflecting the acquisitions and organic growth from its Fiserv 2.0 initiative.

Fidelity National is close on Fiserv's heels, with $4.2 billion. However, the July spinoff of Lender Processing Services made it a smaller company more focused on payments, processing, and core systems. We expect Lender Processing Services to join the FinTech 100 next year.

Acquisitions are also driving some strategic shifts, notably at Hewlett-Packard, which purchased Electronic Data Systems in August and is hoping to become more of a rival to IBM in bank information technology outsourcing.(See related story.)

HP and the others at the top of the Enterprise Companies list — IBM, Dell, Fujitsu Ltd., Cisco Systems, and Microsoft — all reported more FinTech revenue than Fiserv. These firms are fueled by financial institution investments in areas such as service-oriented architecture, data center transformation, virtualization, hardened networks, and outsourcing. In many institutions, chief information officers are leading huge technology initiatives, and they are partnering with these firms to meet their goals, including the ones related to cost containment.

It has been five years since the FinTech rankings were created, making this is an appropriate time to review some trends.

Of this year's FinTech 100 companies, only 47 made the inaugural list. Many of the companies that did make that list have since been acquired.

The U.S. FinTech market is the largest for packaged software providers, but some significant foreign players well known to banks here made the rankings — and not just the Indian firms. Companies such as Politec, Temenos Group, and Murex are rapidly moving up the list, proving that FinTech vendors are a truly global lot.

It is also true that revenue continues to increase for the FinTech 100 members, and the bar has risen each year. Making this year's list required a minimum of $36 million of FinTech revenue; the initial list in 2004 required a minimum of $16 million.

By contrast, the Enterprise Companies list has remained quite stable. The top spots have been dominated by IBM and HP, which offer an extensive range of products and services to banks and employ legions of financial services experts to guide their strategies.

In the future, cost containment will be front and center. To continue to increase their revenue, FinTech vendors will need to find new areas where banks are willing to spend. Vendor management and contract negotiations are a key competency for all large institutions, and ever-increasing expenses are unlikely to be approved for products that only maintain the status quo.

In mature markets, institutions are investing in risk management, automation, some customer-facing applications, and compliance. Newer markets are still experiencing double-digit growth, but macroeconomic conditions will play a role.

Buyers in financial services are very savvy, and they will be even more demanding next year. This promises to shake up the FinTech rankings again.

Ms. Capachin is research vice president for banking at Financial Insights, an IDC company. Mr. Wade is the technology editor at American Banker.

Friday, August 29, 2008

China announces new merger rules...

Details of new merger rules have been unveiled by the Chinese authorities, it is reported.

The People's Daily has stated that if the global revenue of the companies involved exceeds 10 billion yuan ($1.46 billion), or 2 billion yuan in China, then the merger must be cleared by the Ministry of Commerce, according to the Guardian.

It says even then a review would not be necessary unless two or more of the firms each had more than 400 million yuan of revenue in China during the previous accounting year.

However, it adds that when a proposed business combination does not reach the threshold, the government will still assess whether the new company's resulting market share might lead to a monopoly.

Meanwhile, the People's Daily has reported that the country's new competition law is to be applied equally, regardless of the size or geography of businesses.

Professor Shi Jianzhong from China University's Political Science and Law department commented: "The Chinese market is so highly international now that it is neither realistic nor possible to only target the law at foreign multinationals while relaxing it for domestic companies."

Tuesday, July 29, 2008

PricewaterhouseCoopers 'faces auditing inquiry'...


PricewaterhouseCoopers (PwC) is facing a probe after it failed to identify a fraud worth 21 million euros (£16.6 million), according to a report. Read original article.
The accounting giant had audited the Scottish mineral water subsidiary of Greencore for two years without spotting the fraud, Independent.ie says.It states the inquiry is to be conducted behind closed doors by the Institute of Chartered Accountants of Ireland and notes the findings will not necessarily be made public.
According to the news provider, PwC charged Greencore more than 1.6 million euros for its auditing services.It suggests the firm is actively reviewing the auditing contract and is now likely to seek legal redress as well as a refund of a proportion of the fees.
Greencore released a statement last month in which it said that, as a result of the "deliberate concealment of costs", its operating profit would be reduced by four million euros for 2006 and by eight million euros for 2007.In addition, it reported that its predicted operating profit for this year will be reduced by nine million euros.

Tuesday, June 3, 2008

Key Terms of a Licensing Agreement

From found and read

Jay Parkhill, Sunday, June 1, 2008 at 9:00 AM PT Comments (8)

People talk about “selling” technology products all the time, but they usually mean licensing them. Licensing is actually the most common way that technology companies generate revenue. A “sale” occurs when ownership of the product changes hands completely. A “license” is when some portion of ownership is held back. For example, Apple sells iPods, but licenses the software that runs them. The point of this technical distinction is that if you want to “sell” your software to multiple customers, you’ll need to retain ownership, otherwise your first customer is going to walk away with everything. When you license your product, you retain control over how your customers may use it.

License agreements come in a million flavors, but they all contain a few critical elements. Here is a Crib Sheet of 10 Key Licensing Terms you need to comprehend.

1. Scope: What restrictions do you want to impose? The main ones are field-of-use, geography, time and exclusivity. Field-of-use means a customer can only use your product within a specific market. Restricting a license to the automotive sector prevents a customer from using it in aerospace or retail (without paying you again).

2. Geography: Predictably, this determines the physical area where a customer may use your product. Geographic scope is usually worldwide (though I have seen “throughout the universe”), but in some situations a tighter scope makes sense.

3. Time: When pricing your license, you need to decide whether to charge a one-time perpetual fee or a renewable subscription. If renewable, choose an expiration date.

4. Exclusivity: Your customer is the only person who can use your product within the parameters specified. Customers will ask for exclusivity if your product is somehow central to their business. Consider charging a premium for this, unless your product is a commodity (like Microsoft Office), in which case there is no value in negotiating exclusivity.

5. Representations and warranties: This is where you give your customer assurances that the product is yours to deliver, doesn’t infringe on anyone else’s IP, and that you will stand behind it if anything goes wrong. These elements get negotiated frequently. For the warranty, simply find out what your competitors offer and benchmark to it.
Representation of the authenticity of your IP is more challenging. Practically speaking, it is impossible even for big companies to prove that a product does not infringe on existing IP “anywhere else in the world.” Some tips: (a) determine where your customer is likely to use your product and assess whether you need to worry about infringement claims from those parts of the world; (b) limit the scope of your warranty to registered intellectual property in all cases. Patents must be registered to be effective, but trademark and trade secret rights can exist without registration, making due diligence impossible to complete with certainty.

6. Indemnification: If you breach a representation or warranty, and your customer incurs damages, this assures them you will cover the costs. IP claims are foremost in most people’s minds, but personal injuries and property damage (e.g. if your gear causes a fire) are other common grounds for indemnification claims.

7. Limitations on liability: This is your opportunity to state that if any claims on your warranties are made, the maximum amount you will pay will be capped. Most licensors limit it to the fees they will receive from the customer. (Licensees, of course, will want no limits.)

8. Most favored nations: Avoid this provision as much possible. It means that if you ever offer better terms to a new customer, you must give earlier lincensees the benefit of the same terms. Each business deal naturally involves a slightly different set of compromises. But if you give a customer an “MFN” provision, consider yourself warned: You’ll be required to give that person the best part of every deal you do in the future. also.

9. Jurisdiction and venue: Jurisdiction determines the set of laws that apply to your agreement (e.g. California vs. New York). Venue determines where any subsequent lawsuit will be filed. Litigation is rough on startups; litigating long-distance, worse. Set the venue close to home if possible.

10. Attorney fees. If there is a dispute, the loser pays attorney fees incurred by the victor. In my experience, where this provision exists, the parties stay at the negotiating table longer, resorting to court only if certain they will prevail. It can come back to haunt, however; there is always a risk that you could lose, no matter how good you think your claim is.

Disclaimer: This post is provided for general information purposes and may not be considered legal advice.

Jay Parkhill serves as outsourced general counsel to startups and growth-oriented companies, and writes on legal and business matters at his blog, StartupToolbx.

Monday, June 2, 2008

F|R Crib Sheet: Key Terms of a Licensing Agreement
Jay Parkhill, Sunday, June 1, 2008 at 9:00 AM PT Comments (6)

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People talk about “selling” technology products all the time, but they usually mean licensing them. Licensing is actually the most common way that technology companies generate revenue. A “sale” occurs when ownership of the product changes hands completely. A “license” is when some portion of ownership is held back. For example, Apple sells iPods, but licenses the software that runs them. The point of this technical distinction is that if you want to “sell” your software to multiple customers, you’ll need to retain ownership, otherwise your first customer is going to walk away with everything. When you license your product, you retain control over how your customers may use it.
License agreements come in a million flavors, but they all contain a few critical elements. Here is a Crib Sheet of 10 Key Licensing Terms you need to comprehend.
1. Scope: What restrictions do you want to impose? The main ones are field-of-use, geography, time and exclusivity. Field-of-use means a customer can only use your product within a specific market. Restricting a license to the automotive sector prevents a customer from using it in aerospace or retail (without paying you again).2. Geography: Predictably, this determines the physical area where a customer may use your product. Geographic scope is usually worldwide (though I have seen “throughout the universe”), but in some situations a tighter scope makes sense.3. Time: When pricing your license, you need to decide whether to charge a one-time perpetual fee or a renewable subscription. If renewable, choose an expiration date.4. Exclusivity: Your customer is the only person who can use your product within the parameters specified. Customers will ask for exclusivity if your product is somehow central to their business. Consider charging a premium for this, unless your product is a commodity (like Microsoft Office), in which case there is no value in negotiating exclusivity.5. Representations and warranties: This is where you give your customer assurances that the product is yours to deliver, doesn’t infringe on anyone else’s IP, and that you will stand behind it if anything goes wrong. These elements get negotiated frequently. For the warranty, simply find out what your competitors offer and benchmark to it.
Representation of the authenticity of your IP is more challenging. Practically speaking, it is impossible even for big companies to prove that a product does not infringe on existing IP “anywhere else in the world.” Some tips: (a) determine where your customer is likely to use your product and assess whether you need to worry about infringement claims from those parts of the world; (b) limit the scope of your warranty to registered intellectual property in all cases. Patents must be registered to be effective, but trademark and trade secret rights can exist without registration, making due diligence impossible to complete with certainty.6. Indemnification: If you breach a representation or warranty, and your customer incurs damages, this assures them you will cover the costs. IP claims are foremost in most people’s minds, but personal injuries and property damage (e.g. if your gear causes a fire) are other common grounds for indemnification claims.7. Limitations on liability: This is your opportunity to state that if any claims on your warranties are made, the maximum amount you will pay will be capped. Most licensors limit it to the fees they will receive from the customer. (Licensees, of course, will want no limits.)8. Most favored nations: Avoid this provision as much possible. It means that if you ever offer better terms to a new customer, you must give earlier lincensees the benefit of the same terms. Each business deal naturally involves a slightly different set of compromises. But if you give a customer an “MFN” provision, consider yourself warned: You’ll be required to give that person the best part of every deal you do in the future. also.9. Jurisdiction and venue: Jurisdiction determines the set of laws that apply to your agreement (e.g. California vs. New York). Venue determines where any subsequent lawsuit will be filed. Litigation is rough on startups; litigating long-distance, worse. Set the venue close to home if possible.10. Attorney fees. If there is a dispute, the loser pays attorney fees incurred by the victor. In my experience, where this provision exists, the parties stay at the negotiating table longer, resorting to court only if certain they will prevail. It can come back to haunt, however; there is always a risk that you could lose, no matter how good you think your claim is.

Disclaimer: This post is provided for general information purposes and may not be considered legal advice.


Jay Parkhill serves as outsourced general counsel to startups and growth-oriented companies, and writes on legal and business matters at his blog, StartupToolbx.


Saturday, May 31, 2008

Setting up a Branch office in France




International companies setting up in France benefit from a secure legal framework that offers a wide choice of options concerning the status of their operations and the type of contracts they enter into. They can select those best suited to their position and commercial strategy at every stage, from prospecting to business expansion. In practical terms, companies that opt for a particular status on arrival and wish to change at a later date can do so quite simply. In most cases, the tax impact is also limited. Foreign companies can operate in France without officially registered representation. They may, for example, rent an office or set up operations at a business-service center and open a non-resident bank account. They may also employ one person, to whom they pay a salary plus the relevant social security amounts and other levies. In this case, the employee is responsible for paying these amounts on to the bodies concerned. Once the company has its own premises and/or employs two or more people in France, it must be officially represented by a registered liaison office, branch or subsidiary. Registration takes place with the register of companies (Registre du Commerce et des Sociétés).



» Liaison Office

Liaison office: exempt from corporate income tax and VAT

A company whose activities in France are not of a commercial nature and are limited to advertising, the supply of information, or any other preliminary operation (i.e. "an observation post") may be represented by a liaison office (bureau de liaison).

A representative office of this type is not subject to corporate income tax or VAT, but is liable for some local taxes and wage-based levies. A representative office is suitable for a foreign company simply interested in establishing contacts in France.

The formalities are very simple. It is not subject to company law or accounting standards. As long as no legal acts are performed, the representative need not be registered. As a rule, over time a representative becomes a branch empowered to represent the foreign company. It must then be entered in the trade and companies register, for which reason some court clerk's offices will register representative offices which are destined to be turned into branches.



» Branch

• Necessary for industrial and commercial activities

If the company conducts industrial or commercial activities in France, it must set up a branch office or subsidiary. Branches are considered permanent establishments for tax purposes, and are subject to corporate income tax and VAT. If the company is taxed on its worldwide income in its country of origin, the profits or losses of its branch office are included in its taxable income. However, this inclusion has no effect on tax liabilities of the branch office in France.


• A good temporary arrangement

It is quicker to set up a branch office than a subsidiary. Managed by a legal representative, a branch office operates under the authority of company headquarters and there are no special procedures for decision-making.

Yet there are also drawbacks. In the event of financial difficulties, the company has unlimited liability for the debts of the branch office. A branch office also tends to have a less positive image with potential customers and suppliers, and its status is much less favorable as regards State aid, tax exemptions, taxation of intra-group transactions, etc. In some cases, it may also be difficult to turn it into a subsidiary or sell it at a later date, in particular for tax reasons. As a result, in general it is preferable to set up a subsidiary.

"Commercial activity" refers to any activity involving the signature of documents or contracts by an employee or representative and engaging the responsibility of the foreign company. Examples include contracts for direct sales in France, or contracts for providing services to a customer of the company.

There is no minimum legal capital requirement for branches of foreign companies.

They are managed by one or more managers, whose powers are established and may be limited by the foreign head office.

For legal purposes, a branch is not a separate legal entity; therefore, it is not subject to Commercial Law and, consequently, does not have to produce financial statements.

A tax return must be filed. The French Tax Authorities can investigate the branch record.


From the APCE website
Setting up a French company (or branch office) by foreign investors

- Exempt from any particular formalities in the case of investments not exceeding 1 500 000 euros.

- More than 1 500 000 euros : an accounts report must be submitted to the Direction du Trésor (Departmental Treasury Office).

Expansion of a company's activity, of a branch office or a company

- Exempt from making an administrative declaration and accounts report.
- A simple letter informing of the operation should be sent to the Direction du Trésor (Departmental Treasury Office) .



Foreign investors (ec or non-ec members) becoming shareholders in existing French companies(or takeover of trading funds exploited in France)


Administrative declaration to be made at the Direction du Trésor (Departmental Treasury Office), at the time the operation is finalised.

• Taking out shares of < or = to 1 500 000 euros in craft businesses, retail trade, the hotel and restaurant industry, in local services or in companies working exclusively in the exploitation of quarries or gravel pits:
- Exempt from administrative declaration and prior authorisation

- Exempt from accounts report.

• Foreign investments made in any activity related to the exercise of public authority in France, even on a once-only basis:
- Prior authorisation (request in writing) tacit authorisation after a period of one month has elapsed, unless the minister in charge of the economy decides to exercise his/her right of deferment

• Investments which may entail a threat to public order, public health or security :
- Prior authorisation (request in writing).

• Investments carried out within the context of research activities, arms manufacturing or the trade of arms, munitions, powders or weapons used in war :
- Prior authorisation (request in writing).


Legal texts

Act n°66-1008 of the 28/12/1966 modified notably by Act n° 96-109 of the 14/02/1996
- Decree n° 89-938 of the 29/12/1989 modified notably by Decree n°96-117 of the 14/02/1996
- Order of the 14/02/1996.


Useful address

Direction du Trésor Bureau E1 Télédoc 554
139, rue de Bercy 75572 Paris Cedex 12 France
Tel: +33 (0)1.44.87.72.85 or +33 (0)1.44.87.72.87