Financial market – changes, changes, and more changes
Only a month ago we posted an article on plans to change the way the capital market is regulated and market investors are protected. The act has now been passed and signed into law, and will come into force on 1 January 2019.
Posting workers to Poland? Learn about your duties before the Polish authorities
The Act on Posting of Employees for Performance of Services of 10 June 2016, implementing the Posting of Workers Directive (96/71/EC) and the Enforcement Directive (2014/67/EU), imposes a number of obligations on foreign employers posting their employees to Poland which may prove difficult to implement in practice.
Covering the cost of alterations to premises under leases
The question of payment of the cost of alterations made to leased premises by a tenant is an important issue in the relationship between the tenant and the landlord. There are many factors affecting arrangements as to the cost of alterations, such as the duration of the lease, the premises leased, and the envisaged outlays on the part of the tenant.
Closing date of an M&A transaction and the right to participate in the general meeting of a non-public joint-stock company
The Commercial Companies Code regulates in detail the rules for shareholders’ participation in the general meeting of a joint-stock company. The resulting legal conditions should be taken into account when planning the timeframe for M&A transactions to adequately secure the rights of the buyer of shares, and in particular, the possibility for the buyer to participate in the general meeting of a non-public joint-stock company after the closing of the transaction.
Transfer of ownership of bearer shares and obligation to deliver shares
According to the applicable regulations, in order to transfer the ownership of shares, it is necessary to have a tangible element in the form of transfer of possession of registered shares or delivery of bearer shares. The transfer of ownership of registered shares additionally requires the conclusion of an agreement between the seller and the buyer (either on the share document itself or in a separate document), while the transfer of bearer shares may take place even without the conclusion of a formal agreement, through the mere delivery of the shares. Considering the significant legal consequences of delivering a bearer instrument, it is necessary to consider how to understand the term “delivery of shares”.
The good and the bad sides of representations and warranties – a few practical observations
Representations and warranties are a common feature in M&A transactions and derive from common law systems. The fundamental aim of representations and warranties is to properly divide risk between the seller and the buyer. In countries with an Anglo-Saxon legal system, statements made regarding the object of sale are in fact explicitly an element of ex delicto liability, as misrepresentation, and contractual liability as breach of warranty. The significance of statements of this kind in contracts governed by Polish law is not entirely clear and has been widely discussed in case law and legal literature. The conclusions reached are summarised below.
When notice has to be given of a claim for adjustment of pay under clause 20.1 FIDIC
Not all claims relating to performance of a contract are subject to clause 20.1. This clause provides for a severe penalty of expiry of a claim for not giving notice of a claim within 28 days. Above all, most claims for adjustment of pay are not covered by this clause.
Guarantee agreements in Supreme Court jurisprudence
A guarantee agreement is the most widely accepted and common basis for a number of solutions used in M&A transactions. Therefore, its correct application is of fundamental importance for this practice. Meanwhile, judgments issued in recent years by the Supreme Court of Poland on the nature and normative sources of such obligations have caused doctrinal controversies and uncertainty among trade participants. It is therefore worth briefly summarising where the case law stands and the conclusions that can be drawn from it.
How to explain a grossly low price or cost?
The contractor’s explanation of a grossly low price or cost must indicate the specific factors making it possible to offer a low price or cost, supported by evidence. The burden of proving that the price or cost is realistic lies with the contractor. If this obligation is not met, the contracting authority will reject the contractor’s bid.
Can shops operate on 12 November 2018?
The President of Poland signed a law establishing 12 November 2018 a public holiday. It has only a few articles and deals with an individual case, and yet it gives rise to a discussion as whether 12 November 2018 is covered by trade restrictions. Despite an opposite position of the National Labour Inspectorate and the Ministry of Family, Labour and Social Policy, it seems that shops may be opened if retail staff is employed on the basis of civil law contracts, works in shifts or there are other exceptions to the work ban on non-working days as specified in Art. 151[10] of the Labour Code.
Costly parting of the ways with the Polish tax authorities: Tax on income from unrealised gains
A tax amendment is lying on the Polish President’s desk. It will introduce, among other things, a tax on income from unrealised gains. As announced, the regulations should enter into force at the beginning of 2019.
Strengthening financial market supervision
Recent difficult investor experiences have led to proposals for further regulatory changes aimed at increasing security and strengthening supervision of the financial market. Currently in a Sejm committee, a government bill is being read for the first time which would amend several acts, redefine the Polish Financial Supervision Authority, and impose an obligation to dematerialise some financial instruments.
