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Despite a climb in the first half of 2016, oil prices remain low and this continues to be a major theme in the energy space, which has led to increased amounts of litigation such as breach of contract disputes and royalty class actions. The midstream sector has not been hit as hard and is benefiting from the new infrastructure-friendly Trump administration - the other major factor shaping the energy sector. Consequently, advising on oil and gas infrastructure projects has been keeping many firms busy, be it in the regulatory space, providing assistance with Federal Energy Regulatory Commission (FERC) filings, or in a contentious setting, where a large number of firms act for companies faced with environmental opposition. With the new administration, firms expect speedier approval proceedings for pipeline projects on one side and an uptick in environmental litigation on the other while increased competition between pipeline companies is another expected outcome. In the advisory sphere, lawyers were kept busy in oil and gas restructurings and insolvencies, while also reporting a pick-up in non-distressed upstream and midstream M&A.

On the power side, the percentage of natural gas use for electric generation continues to climb and with the US being a net exporter of natural gas, legal work relating to LNG exports and related permitting matters are becoming a more prominent theme for firms. This trend is expected to continue with the new administration, particularly in light of the shale gas revolution. The abundance of lower-cost natural gas generation is ultimately expected to neutralize any federal attempts to increase coal production. In power transactions, the PJM market has cooled slightly, with lenders and investors beginning to raise a few concerns about overbuild. Distributed energy resources such as rooftop solar installations and local energy storage do not pose existential threats to the centralized power system, but utilities are nonetheless beginning to adapt to the new power transmission landscape; many continue to divest assets.

The two main stories in the renewable space are the incipient rise of energy storage and of blue-chip corporations, particularly on the West Coast, sourcing their own renewable energy and drawing up their own off-take agreements rather than relying on utilities. It remains to be seen whether Donald Trump’s election will seriously hurt the renewables market: his slashing of corporate tax rates will likely affect tax equity investors - key players in renewable project finance - and Obama’s Clean Power Plan will be kicked into the long grass. But many lawyers are optimistic: the push for renewables will, by and large, continue at ground and corporate level, especially since renewables are increasingly affordable, regardless of who occupies the White House. Transactional renewable energy lawyers were kept busy by the federal extension of tax credits in December 2015.

Environmental practices continued to see a substantial workload across all areas in 2016, however lawyers in this space also expect to see significant changes in the market following the inauguration of Donald Trump. There was a continued increase in enforcement activity, most notably in Clean Air Act cases, although federal enforcement is expected to decline and be replaced with greater involvement on behalf of individual states, which are becoming increasingly sophisticated in terms of environmental issues. With regard to litigation, firms continue to see a strong flow of mandates from the energy, mining and oil and gas sectors, and defense in enforcement actions and challenges to regulatory legislation are the key drivers of work.

Environmental regulatory practices report a general ‘wait-and-see’ attitude as the changes in administration take place, through it is anticipated that many of Barack Obama’s climate change policies will come under pressure, most notably the Clean Air Act and Clean Power Act. The past year has seen a continued flow of environmental compliance work, with water rights, waste management and Superfund site cleanups being the main areas of activity.

The environmental transactional market continues to be competitive. The real estate, infrastructure, and oil and gas sectors have been earmarked for significant development, and the independent energy sector is also expected to boom. M&A and capital markets activity remains prevalent, and there is a steady demand for advice on cross-border transactions.

Consolidation has been a key trend of recent years in the healthcare service provider space, prompted by increased government cuts to healthcare budgets; a trend for takeovers on a localized scale has morphed into regional and even national system mergers becoming the norm. Low interest rates have seen private equity players become increasingly prominent as alternative lenders to healthcare systems involved in M&A. Industry revenue has evolved away from fees-for-service towards performance-based payments, which has forced organizations to adapt, affecting the way insurance is issued as providers merge with insurance companies to sell their own insurance policies to consumers. Other developments of note include an increased emphasis on fraud and abuse investigations combined with an increase in whistleblower cases; as a result, law firms have strengthened their litigation practices to offer clients a more fully rounded package. Regulatory work also remains a strong element of practice as service providers look to ensure they are compliant against a backdrop of federal enforcement for violations totaling billions of dollars in damages each year.

In the health insurance market, M&A among insurers continues to be a key trend, amid ongoing pressure from the government for healthcare companies to cut spending costs. The move towards outcome-based care costs has marked a cultural and organizational shift for the industry, with insurance coverage evolving to face the new challenge. Class action litigation is on the increase, with claims in the area of behavioral health notably growing in number. The election results will have a huge effect on the health insurance system depending on whether the Affordable Care Act, or Obamacare, is repealed, with insurance companies already formulating business strategies regarding the next four years.

In the life sciences industry, 2016 saw a fall in the IPO activities of pharmaceutical and biotech companies due to a stock market decline and uncertain global market conditions, with most public listings in the industry being impacted by the long regulatory processes of clinical trials, product development and Food and Drug Administration approval. Instead, M&A activity remains high and continues to account for a large proportion of the workload of major law firms active in the space.

The new US presidential administration has also put pressure on drug pricing as President Trump maneuvers to win support for his planned overhaul of the nation’s healthcare system. Fast-moving technological developments continue to be a central issue in the healthcare industry with a number of law firms increasingly focusing on digital health, data privacy and other regulatory issues relating to it.

Indeed, cyber law and related insurance policies are also becoming a major source of work for policyholder firms, as hacking and data breaches - such as the high-profile Sony case - continue to drive more sophisticated policies and regulations. The NFL concussion litigation has produced a wave of insurance claims, which have filled the gap in long-term injury cases as the wave of asbestos claims begins to recede.

In another trend, private equity firms have become increasingly involved in the insurance world as more sale opportunities arise from consolidation. In addition, international investment is prominent in the insurance space, particularly from Asia, with Chinese and Japanese businesses looking for opportunities. Another talking point is so-called ‘insuretech’, which, much like ‘fintech’ in financial services, describes the convergence between insurance and technology; this area is impacting underwriting and company structures, and firms are reporting more venture capital work relating to this area.

In sports, transactional work has continued at a gallop despite no ‘Big Four’ team changing ownership in 2016. Headline matters included the addition to the National Hockey League (NHL) of the Vegas Golden Knights for the 2017-18 season (the first expansion team in a Big Four league since the Charlotte Bobcats joined the National Basketball Association for the 2004-05 campaign), and the multibillion-dollar sales of Formula One Management (the sport’s commercial rights holder) to Liberty Global and the Ultimate Fighting Championship to WME IMG. New stadia have grabbed the focus in football, following two relocations and a third one in the pipeline. The Chargers and Rams, following their departures from San Diego in 2017 and St Louis in 2016 respectively, are in the process of constructing a new stadium in Inglewood, while a new stadium in Las Vegas is proposed for the Raiders, which is seeking to depart the aging Oakland-Alameda County Coliseum.

Litigation continues, with head injury cases the most high profile. The NFL’s primary concussion case has settled, although a number of hold-out cases - plus litigation against the NHL and National Collegiate Athletic Association - continues. In a different sphere, a potentially game-changing case concerns sports gambling, with the Supreme Court referring New Jersey’s challenge to the federal Professional and Amateur Sports Protection Act (which bans sports gambling in most states) to the Solicitor General for an opinion on a grant of certiorari. In a similar vein, daily fantasy sports continues to be a growth sector despite its regulatory woes; the two leading players, FanDuel and DraftKings, agreed to merge in November 2016.

Our Industry focus chapter contains three new sections this year dedicated to the sizable transport industry, which continues to grow as a proportion of the economy overall. Regulations governing the use of unmanned aircraft (UAS) are among the most pressing regulatory matters facing the aviation industry. These will affect a wide range of market participants, as technology companies that have not been traditionally involved in this space look to make use of commercial drones. On the corporate side, the acquisition of Virgin America by Alaska Airlines has been the most heavily publicized aviation deal in recent years. Litigation in this area has remained relatively steady.

An emerging area in vehicle industry is that of self-driving automobiles and, although there has been little of this work reaching law firms up until now, some are looking to take a pioneering role in this space. It is anticipated to affect the trucking sector first, as safety and liability issues will delay the use of self-driving vehicles for personal use or ride-hailing and taxi-like services. The implementation of self-driving vehicles in the trucking industry may be accelerated by the shortage of new drivers in that sector.

The shipping sector has been relatively stagnant. Though there is still a fair amount of work to be had in this practice area, there have not been any particularly consequential legislative initiatives in several years. European banks have largely pulled out of the funding space, which has made room for investment funds as equity providers.

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Legal Developments worldwide

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  • New requirement for all issuers operating on the Luxembourg Stock Exchange

    On 10 August 2017 the Luxembourg Stock Exchange announced that all domestic and foreign issuers operating on the regulated market (Bourse de Luxembourg) or on the multilateral trading facility (Euro MTF) of the Luxembourg Stock Exchange must provide their legal entity identifier (“LEI ”) codes to the Luxembourg Stock Exchange before 15 September 2017.
  • Luxembourg law on the exploration and use of space resources entered into force

    The Luxembourg law on the exploration and use of space resources of 20 July 2017 entered into force on 2 August 2017 and placed Luxembourg among the most innovative space-oriented nations in the world.
  • VAT in the GCC – Q&A updates from the UAE Ministry of Finance

    On 9 July the United Arab Emirates (UAE) Ministry of Finance (MOF) published an update of the Value Added Tax (VAT) FAQ section of its website.
  • PRIIPs KID: The final pieces of the puzzle

    The pieces of the puzzle are finally falling into place. The long-awaited level 3 and 4 measures have been published earlier this week, half a year before the PRIIPs KID becomes compulsory.
  • MiFID II: Further guidance on product governance requirements

    Amongst the numerous topics covered by the Markets in Financial Instruments Directive II (MiFID II), the European Securities and Markets Authority (ESMA) has decided to provide further guidance on the requirements regarding product governance through its guidelines dated 2 June 2017 which focus on the target market assessment by manufacturers and distributors of financial products.     
  • Arendt & Medernach is again the “Luxembourg Tax Firm of the Year”

    The partners of Arendt & Medernach are pleased to announce that their firm has been awarded once again the prestigious “Luxembourg Tax Firm of the Year” title during the International Tax Review’s European Tax Awards ceremony held at the Savoy Hotel in London on 18 May.
  • Signature of the Multilateral instrument – reservations made by Luxembourg

    On 7 June 2017, the official ceremony for the signing of the multilateral instrument (“MLI”) took place bringing to a close a process initiated last year when a consensus was reached on the wording of the MLI on 24 November 2016 (see also our newsflash dated 2 December 2016, available on our website www.arendt.com section Publications/Newsflash).
  • Arendt & Medernach: Luxembourg Law Firm of the Year

    Luxembourg, May 2017 – Arendt & Medernach is proud to have been named “Luxembourg Law firm of the year” both by Chambers & Partners and IFLR (International Financial Law Review). The prestigious trophies were both received in April in London at the respective ceremonies of the Chambers Europe Awards 2017 and the IFLR European Awards 2017.
  • First VAT EU case law on the cost-sharing VAT exemption

    The question of the scope of the cost-sharing VAT exemption, also referred to in the Council Directive 2006/112/EC of 28 November 2006 as amended ("EU VAT Directive") as “Independent Groups of Persons” or “IGPs”, is currently being debated at the Court of Justice of the EU (“CJEU”) in several cases. Last Thursday marked the first milestone regarding this specific VAT exemption since the CJEU released its judgment in the case Commission v Luxembourg (C-274/15).
  • An Introduction to Corporate Guarantee

    In the UAE, the risk management activities inherent in running a corporate or investment banking business remain of crucial importance, not least because of the strong local characteristic of “name lending”, by which is meant lending or providing other banking facilities to family or other private businesses, primarily on the strength of the “name” or “names” of the proprietors standing behind the business, rather than on the strength of the asset quality and underlying credit of the particular business. Of course, in practice, there is commercial overlap between the proprietors and the companies which they own, but the credit analyses can break down where poor banking practices and procedures result in poorly constructed legal documentation and gaps in guarantee and security support documents.

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