Morgan & Morgan received top-tier rankings in the international directory IFLR1000, a guide that analyzes the work of lawyers in the financial and corporate transactional area.
In addition, five lawyers of the firm are listed as leading professionals:
- Aristides Anguizola – Rising Star
- Francisco Arias – Highly Regarded
- Carlos Ernesto González Ramírez – Highly Regarded
- Inocencio Galindo – Highly Regarded
Meet them at Here.
Panama, November 6, 2019. Jose Carrizo, head of the Litigation and Dispute Resolution practice of Morgan & Morgan, contributed with the Panama chapter of The Arbitration Review of the Americas 2020, providing a comprehensive analysis of the arbitration system in Panama, its legislation and every aspect that confirms the country as an international and regional center for the resolution of arbitral disputes.
The publication can be download here.
London, October 3, 2019. Luis G. Raven, partner in the Shipping and Admiralty Litigation Department of Morgan & Morgan, participated in The International Maritime Law Seminar (IMLS), an annual event that takes place in the City of London and seeks to provide in-depth analysis and discussion of current legal topics critical to the marine industry.
More than 250 maritime executives and attorneys attended the seminar presented under the moderation of representatives of more than 15 leading law firms from five different continents. Mr. Raven participated in the panel discussion titled “Issues and Solutions Arising from IMO 2020 ULSFO Requirements” and he focused on the steps being taken in Panama to guarantee MARPOL Annex VI’s implementation and enforcement.
Panama, November 1, 2019.
Morgan & Morgan advised Avianca Holdings, S.A., a company incorporated under the laws of the Republic of Panama (the “Company”), in launch and consummation of an exchange offer of the Company’s previously issued US$550,000,000 8.375% Senior Notes due 2020 for newly issued US$550,000,000 8.375% Senior Secured Notes Due 2020 (the “Exchange Notes”). The Exchange Notes will have terms that are identical in all material respects to the terms of the Existing Notes, except that, among other differences, (1) the Exchange Notes will be issued by the Company and will be guaranteed by Avianca Leasing, LLC and Grupo Taca Holdings Limited (“Taca”), which were co-issuers of the previous notes, and will additionally be guaranteed by Avianca Ecuador S.A., Tampa Cargo S.A.S., Aviateca, S.A., Latin Logistics, LLC, International Trade Marks Agency Inc., and a newly created intermediate holding company (“Parent HoldCo”), which did not guarantee the previous notes, (2) the Exchange Notes will be secured by a pledge or assignment of (a) the AVIANCA brand and certain other intellectual property registered in different jurisdictions, including Panama, (b) certain unencumbered aircraft which are currently owned directly by or in trust for the benefit of Tampa Cargo S.A.S. or by Aerovías del Continente Americano S.A. – Avianca (“Aerovias”), and (c) the residual interest in substantially all aircraft which are owned and financed now or in the future by the Company and its subsidiaries, and (3) the Exchange Notes will automatically be exchanged (the “Mandatory Exchange”) for an equivalent principal amount of 9.00% Senior Secured Notes due 2023 (the “New Notes”) on December 31, 2019 upon the closing of an investment of not less than U.S.$250 million of new equity or convertible debt in Avianca Holdings from United Airlines, Inc. (“United”), Kingsland Holdings Limited (“Kingsland”) and one or more financial institutions, of which at least U.S.$200 million thereof will be made by United and Kingsland (the “Stakeholder Investment”) and the receipt of such funds on or prior to December 31, 2019.
BofA Securities, Inc., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC acted as the Dealer Managers of the Exchange Offer, with BofA Securities, Inc. acting as Global Coordinator of the Exchange Offer. Wilmington Savings Fund Society, FSB, acted as indenture trustee and collateral trustee, Citibank, N.A. acted as transfer agent, registrar and principal paying agent, and Cititrust Colombia S.A., Sociedad Fiduciaria, acted as Colombian collateral agent.
Fanny Evans, Senior Associate, Morgan & Morgan
In 2013, Virginia Ginni Rometty – CEO of IBM, said “I would like you to think of big data as the next natural resource that can be to our era what steam, electricity and oil were for the Industrial Age.”
Probably, you have read or heard: Data is the new oil! Data is the new bacon! Data is the new currency! These analogies have become very popular because data is now considered one of the most important commodities.
This is the result of the emergence of many successful Social Networks that, although they are not payment platforms, have turned the data into a source of value.
The need for a data-protection compliance program in business is becoming increasingly important after several high-profile leaks of companies’ data. Some of the biggest data breaches over the last two years include T-Mobile, Marriot, British Airways, Quora, Google, Orbitz and just recently, Capital One bank in the United States. A successful data breach may occur in less than one minute. Yet, businesses may take more than weeks to realize a breach has occurred.
When giving the first steps into complex waters like data protection, it is very common that companies get lost in the avalanche of legal requirements or in developing that product or service that might result attractive to its clients. However, for a business, changing the focus to issues that they may consider more interesting should never be an option because the results of data breaches include many types of damages: fromreputational to financial. Sometimes it can even affect an entire country as happened with, in my opinion, the wrongfully or unjustifiably called “Panama Papers”.
In the European Union, data protection is a fundamental right, and the General Data Protection Regulation (GDPR) which came into force on May 25th, 2018, is the new framework for protecting that right. Other countries are looking to the GDPR as they develop or implement their own laws to protect data.
Even if companies have an “it will not happen to me” approach to data breaches, in many countries, legislation is forcing them to rethink their reasoning. Here is where compliance plays an important role to help to plan a data-protection compliance program.
Here are five steps that can help as guidance when drafting or reviewing your data-protection compliance program:
- Understand your risks and legal and ethical obligations
One of the most important elements when building a data-protection compliance program is considering your risks and what is most important and mandatory to the business, instead of jumping into the requirements of a legislation without fully understanding your needs because not all risks or obligations are managed in the same manner or to the same extent. This program needs to set out the appropriate guidance in key areas.
Having said the above, the first step should always be to understand the business necessity to comply. This involves a careful analysis of what your obligations are, what the risk of breaching those obligations might be and what risks your company is willing to take.
- Document and review your policies
Your data-protection compliance program should be properly documented. Once the obligations and risks are understood, it is vital to document them. It is not just enough to know you are data privacy compliant. Your data-protection compliance program should be clearly verifiable and readily accessible through accurate reports and documentation for internal or external examinations.
The compliance officer shall perform a formal review on a regular basis to ensure that the data-protection compliance program is progressing as planned and that it is adjusted to meet any changes in legislation or the business.
- Allocate ownership
The responsibilities and tasks related to confidentiality and data-protection may overlap with other business policies, such as information technology security, recordkeeping, risks and audit, human resources, management of confidential information and others as it requires various skills to succeed. Therefore, the most advanced and elaborated data-protection compliance program will fail if there is no clear ownership of the tasks. Each business will structure the ownership differently, but it is vital that who is the owner of each task of the program is clearly understood and that the owners have the necessary resources, including training, so that they are competent to fulfil their role in a manner that is consistent with the business’ compliance culture.
- Provide training and the necessary resources
Always train your staff. If you have an informed team it will reduce your risk. Raise staff awareness.
Not only does training staff reduce the risk of breaches, it also demonstrates compliance before internal and external inquiries. For example, if an organization was to experience a data breach and they had documented their staff training on data protection, this would be used as evidence to prove that they had taken the appropriate steps to prevent a data breach and were taking the legislation seriously, if any.
Training should aim to ensure that all members of the team have an understanding of the data that they will have access to and the risks entailed. Training should be provided on a regular basis, and it ought to be performed again whenever there are significant changes to positions, structures, risks or obligations, or when actual issues arise. Also, the business shall incorporate data protection training into its process for onboarding new employees.
Businesses shall embed data-protection compliance program into it culture so that protecting information becomes second nature. This aspect, training and continuing education, should always include senior management.
- Review the Financial Action Task Force (FATF) Guidance on the Risk-Based Approach
A risk-based approach to compliance involves identifying the areas of high risk within the business’s compliance universe and building and prioritizing its compliance programs around these risks.
In order to assist both public authorities and the private sector in applying a risk-based approach, the FATF has adopted a series of guidance in co-operation with relevant sectors. Businesses shall review the guidance applicable to its industry to make sure that the appropriate mitigation measures in accordance with the level of risk are taken.
Data is one of the most important assets a business has. For that reason alone, data protection compliance program should be a top priority for any business.
Panamá, October 29, 2019. Partners Jazmina Rovi and Francisco Linares contributed to the Panama chapter of Getting the Deal Through: Market Intelligence-Shipping 2019, a publication with an analysis of the evolution and the regulatory scenario of the maritime industry globally.
To complete article can be read on the following link:
Analissa Carles, Associate, Morgan & Morgan
On May 19, 2016, the concept of a “Bankruptcy,” as the legal term was defined, ceased to exist under Panamanian law. Law 12 of 2016 (the “Insolvency Law”) entered into force on that date and introduced new proceedings into our legal system. These proceedings are referred to as Reorganization and Liquidation.
The enactment of the Insolvency Law sought not only the protection of the rights of creditors, but also to achieve a differentiation between “efficient” and “non-efficient” companies, depending on the reasons and circumstances that give rise to their insolvency status.
For “efficient companies”, the law introduces the “Reorganization Proceeding,” the main purpose of which is the recovery and continuation of the company as an economic unit and employer.
A Reorganization Proceeding pursues similar objectives as the bankruptcy protection provisions established in Chapter 11 of the United States Bankruptcy Code. Thus, a Reorganization Proceeding allows the restructuring of a company’s debt obligations and can be initiated at the request of the insolvent company or by its duly organized creditors through a “Board of Creditors.” The insolvency petition must be accompanied by a series of documents that include, among others, the company’s financial statements, an inventory of its assets and liabilities, payroll obligations and the Reorganization Plan, in which the debtor must provide a financial, organizational, operational and competitiveness restructuring project with the intention of solving the causes that led to the company’s failure to make required payments, its imminent insolvency or foreseeable lack of liquidity.
This Reorganization Plan is significant in that it serves to initiate the proceeding itself. Subsequently, when the creditors formally join the proceeding to submit evidence of their credits, the Reorganization Plan must be subjected to a vote by the established Board of Creditors, who must either approved or reject said plan. The result of this vote will decide whether: a) the company will in effect be reorganized through the execution of said plan; b) the culmination of the proceeding without any agreement, in which case the bankruptcy protections would be lifted and the debtor would have to negotiate with each of its creditors separately; or, c) the Judicial Liquidation of the Company.
Judicial Liquidation Proceeding
The Judicial Liquidation Proceeding, as the name implies, focuses on liquidating “inefficient” companies in a prompt and orderly manner. This can be initiated at the request of the debtor by means of a Voluntary Liquidation or by means of a duly substantiated petition from a creditor, which in this case would be a Compulsory Liquidation.
In either case, the petition must be accompanied by a series of requirements and documentation. In the case of a Voluntary Liquidation petition, provided all requirements are met, the court will issue a resolution declaring that the company is in liquidation.
For Compulsory Liquidation, provided all requirements are met, the request will be accepted and the debtor will be given an opportunity to answer the creditor’s petition. The court will then set a date for an initial hearing. If the debtor opposes the petitioner’s claim against it and the judge deems such opposition to have sufficient grounds, it shall deny the claim and the proceeding shall terminate. However, if the court deems said opposition to have insufficient grounds or if the debtor does not even submit any opposition, the debtor may: a) allocate sufficient funds for the payment of the debt; b) agree with the requesting creditor for the hearing to be suspended in order for the parties to reach an arrangement; or, c) submit to a Reorganization Proceeding. If, however, the debtor does not choose any of the aforementioned options, the judge will issue a resolution for a Liquidation Declaration, with the corresponding legal effects.
It has been interesting to see the development and execution of this relatively new law before the courts of Panama, especially since it also provides for the creation of new Insolvency Circuit Courts, as well as the Fourth Superior Court of the First Judicial District, consisting of three justices elected by the Supreme Court, in full, with exclusive jurisdiction over insolvency proceedings. However, to date, these courts have not been created and, therefore, the Civil Circuit Courts are currently in charge of hearing such proceedings. These circumstances have forced the judges ruling over these cases to become overly reliant on the technical criteria of the Bankruptcy Administrators appointed by them within the proceeding. Consequently, said Bankruptcy Administrators, who serve as an assistant of the Court, must have the legal and accounting capacity to warn of possible irregularities within the proceeding, from the initial scrutiny of the insolvency application, together with all the supporting documentation. They must also be able to determine if, indeed, they are facing an efficient company that can improve its current financial condition, and they must even make recommendations against the aforementioned Reorganization Plan, before it is submitted to the Board of Creditors for their vote. This level of expertise, although not expressly required by law, has become a necessity given the unforeseen preponderance that the expert input of these Bankruptcy Administrators has acquired.
There are many conceptual and practical elements to analyze in Law 12 of 2016. However, as is often the case, only through the practice and application of this law has allowed both lawyers and financial institutions to fully grasp the challenges ahead. Regardless of the above, the objective of the Law is positive – especially since, previously, a bankruptcy declaration was a de facto death knell for a company. It is therefore worthwhile to focus efforts on maximizing the advantages created under the law in order to obtain the desired results. These, however, will ultimately depend to a large extent on the good will and good faith dealings of both creditors and debtors.
Alvaro Tomas, partner and Vice President of Operations of the Fiduciary Unit of Morgan & Morgan
The Panamanian government has issued Law 99 of October 11, 2019, which establishes a General Tax Amnesty Law (“Amnesty”) that includes the elimination, for a limited period, of the penalties and surcharges caused by non-payment of the obligations with the National Treasury for corporations and private interest foundations. This law also includes amnesty for various types of interests and penalties resulting from non-payment of other taxes (for example: property or income tax).
Tax Amnesty Terms
The Amnesty Law will be extended until February 29, 2020 with exoneration as follows:
Full exoneration (100%) for those who pay in October and November 2019;
95% for those who pay in December 2019;
90% for those who pay in January 2020 and;
85% for those who pay on February 29, 2020.
The aforementioned Amnesty is the perfect opportunity to bring your legal vehicle into good standing without additional charges or to proceed with its dissolution instead of being struck off (which is the legally correct manner).
At Morgan & Morgan we have a range of seasoned professionals working alongside the young talent that can help you with the administration of your corporate vehicles and foundations. Please write to [email protected] if you are interested in more information.
With this new legal initiative, the taxpayers have the opportunity to clear tax debts without interests, surcharges and fines and to file forms past due without penalties.
Those managed by the Revenues General Directorate
What does the tax amnesty refer to?
- Condonation of:
Tax Amnesty Term
|If paid||Condonation %|
|by Nov 30||100%|
|By Dec 31st||95%|
|By Jan 31st||90%|
|By Feb 28th||85%|
Reports due to the DGI can be filed until Dec 31st, 2019 without triggering a fine:
- Donations Report
- NGO´s Report
- Form 03
- Form 40 on Retirement Fund
- Form F-41 insurance companies
- Form 42 interests certification
- Form 43 Purchases Report
- Credit Cards sales Report F-44
- F930 Transfer Pricing Report
- Remittances Abroad Report for SEM and Panama Pacifico Companies.
- Others which establish a fine for late filing
Apply with the payment of 25% of the debt and the remaining portion is cancelled no later than June30th of 2020 and the % of interests, surcharges and fines condoned depends on the month the payment arrangement is executed.
Use of the Benefit in the Law
The interested party must communicate his interest either in person, through a POA or by means of the eTax2.0.