Canada: Decision In Canadian Challenge To FATCA Expected Soon

The Canadian Federal Court heard oral arguments on August 4 and 5 in a lawsuit that challenges the law that implements the intergovernmental agreement1 between Canada and the U.S. relating to the Foreign Account Tax Compliance Act2. This author attended the hearing. Surprisingly, the court committed to rule on the plaintiffs' motion for summary trial by September 30, the date by which the first transfer of information from Canada to the U.S. is required under the IGA3.

Two dual Canadian-U.S. citizens commenced the lawsuit on August 11, 2014,4 in the Canadian Federal Court in Vancouver, British Columbia. The impending ruling could have profound effects on the application of FATCA in Canada as well as Canada's ability to implement the OECD's common reporting standard (CRS) for the automatic exchange of information.

The court's ruling on the motion will be the first time a court in an IGA partner jurisdiction has decided the domestic legality of IGA-implementing legislation, and all 115 IGA partner jurisdictions will be eagerly awaiting the outcome.

As part of its federal budget announcement, Canada committed to implementing the OECD's CRS starting in July 20175. The announcement reaffirmed Canada's commitment to introduce draft legislation in 2015. Since the reporting obligations and mechanics of exchanging this information are based largely on the architecture of FATCA and the IGAs, the court's ruling may therefore also affect Canada's ability to fully participate in the CRS.

If the court rules in favor of the plaintiffs, it won't be the first time Canada has invoked domestic law to depart from the rigid strictures of the IGA and FATCA to arrive at a domestically palatable solution. In 2014, Canada's newly enacted domestic legislation defined the term "financial institution" differently from the definition in the IGA, the FATCA regulations, and other IGA partners' domestic legislation. While Canada's definition was a departure from the letter of the IGA, it was consistent with the spirit of the agreement and, most importantly, accomplished the intended result for FATCA compliance in Canada6.

Motion for Summary Trial

In their motion, the plaintiffs are seeking an order that would "permanently enjoin the Minister of National Revenue from disclosing to the United States government... the private banking information of U.S. persons resident in Canada who are Canadian citizens or residents when such disclosure is contrary to the Canada-US treaty"7. In other words, if the plaintiffs are successful, Canada would be precluded from complying with the FATCA information exchange, at least insofar as the court holds that the information to be exchanged is outside the scope of the treaty.

While the plaintiffs' arguments in the 2014 pleadings primarily address Canadian constitutional law, the pleadings in the motion for summary trial largely reserve those arguments for the full trial, and instead focus on limits on the collection and exchange of information found in the Canada-U.S. treaty,8 the IGA, and Canadian domestic law.

Court's Options

At the hearing, the court acknowledged the short amount of time before its self-imposed deadline to rule. Consequentially, the court noted that the ruling will likely be in the form of a bare order, with the reasons for the order to follow. The impending ruling may take one of three forms. First, the court could hold that the exchange of information is within the scope of the treaty and refuse to enjoin the exchange. In that event, a full trial would likely follow on the reserved Canadian constitutional issues.

Second, the court could hold that the information to be exchanged is entirely beyond the scope of the treaty and Canadian domestic law and, therefore, enjoin the exchange of information planned for September 2015. In that event, the defendants would likely appeal the ruling. The appeal and the trial on the reserved constitutional issues would likely proceed later this year or next. Until the treaty and constitutional issues are finally resolved by the courts, Canadian financial institutions would likely be subject to the full weight of FATCA if, as a result of the ruling, the IGA is determined to be in force. To prevent this result, the U.S. Treasury or the competent authorities would likely intervene.

Third, the court could hold that the information scheduled to be exchanged is beyond that permitted under the treaty or Canadian domestic law and enjoin the exchange of the offending information. If the two individual plaintiffs' information is enjoined from the exchange, then the defendants would likely appeal the ruling, and the appeal and trial on the reserved Canadian constitutional issues would likely be heard later this year or early next year. It is unclear whether such a ruling would result in the IGA not entering into force. If so, however, the U.S. Treasury or the competent authorities would likely intervene to prevent this result.

Substantive Arguments

Succinctly stated, and without the deft and nuanced analysis found in the pleadings,9 the plaintiffs argued that account holder information set to be exchanged under the IGA is more extensive than that which is permitted by Canadian domestic law and treaty articles XXVI-A (assistance in collection), XXVII (exchange of information), and XXV (non-discrimination). The plaintiffs summarized their position as follows:

It is the plaintiffs' position that only a tiny subset of the information collected by Canada from Canadian Financial Institutions might be disclosable and if the United States is made aware of the severe limitations on what Canada will disclose, it likely will not even care to have that information. This will simply demonstrate that Canada was caught by the U.S. FATCA worldwide net without any good reason10.

Taken at face value, the plaintiffs' position would greatly limit the exchange of information contemplated by FATCA, which (the defendants argued) could not reasonably be what Canada and the U.S. intended when they entered into the IGA. The defendants proffered the counterargument that under Canadian law, interpreting a tax treaty is different from interpreting a statute and that "[a] literal or legalistic interpretation should be avoided if it might defeat or frustrate the intentions of the parties"11.

Article XXVI-A: Assistance in Collection

The plaintiffs noted that Article XXVI-A:8 of the treaty precludes Canada from assisting the U.S. to collect taxes from individuals who were also Canadian citizens when the U.S. makes a revenue claim. They then argued that since providing account holder information includes everything needed for the IRS to assess and collect taxes, providing the information is equivalent to assisting the U.S. to collect taxes. In their notice of motion, the plaintiffs concluded, "Accordingly, this disclosure of accountholder information results in having provided assistance in the collection of Revenue Claims"12. In most cases, the argument that the disclosure of information is tantamount to assistance in collection falls a bit flat because the IRS's authority to assess tax and penalties is typically subject to the deficiency procedures found in sections 6211 through 6215 of the code. The deficiency procedures generally assure the taxpayer access to administrative review (namely IRS Appeals) and a prepayment judicial forum (namely the U.S. Tax Court) for reviewing disputed additions to tax and penalties proposed by the IRS13.

However, "assessable penalties"14 are ineligible for the procedural safeguards of the deficiency procedures and can be assessed almost immediately by the IRS. Neither party raised the issue of assessable penalties in their submissions, but doing so may have helped the plaintiffs' argument that disclosure of account holder information is the equivalent of providing assistance in collection.

Specifically, the failure-to-file penalties imposed by Chapter 61 of the code are assessable penalties ineligible for the deficiency procedures referred to above, and they may be assessed without affording the taxpayer access to administrative review and prepayment judicial forum. Further, the IRS may assess these penalties by simply providing the taxpayer with notice and demand for payment, and if payment is not made within 10 days, the IRS may commence collection15. This issue is even more important for U.S. citizens residing abroad because the failure-to-file penalties on many common information returns (for example, forms 5471,16 5472,17 926,18 8865,19 and 893820) are assessable penalties. Consequentially, merely providing account holder information could be tantamount to assisting in collection, at least as it relates to assessable penalties.

Article XXVII: Exchange of Information

The plaintiffs noted that Article XXVII:1 of the treaty requires the competent authorities to exchange "such information as may be relevant for carrying out the provisions of this Convention or of the domestic laws of the Contracting States concerning taxes to which this Convention applies insofar as the taxation thereunder is not contrary to this Convention" (emphasis added). Next, the plaintiffs presented several arguments that the account holder information to be exchanged is irrelevant to taxes covered by the convention.

First, the plaintiffs noted that a large majority of U.S. citizens resident in Canada do not owe taxes to the U.S. because of the treaty and the double-tax-mitigating provisions of U.S. domestic tax law (for example, the foreign tax credit, foreign earned income exclusion, and so forth). Accordingly, the plaintiffs argued that account holder information would be relevant only to the U.S. persons who, for various reasons, may owe U.S. taxes21.

On the first point, the defendants counterargued that the plaintiffs' position was unreasonable because it would require the Canada Revenue Agency to determine an affected individual's U.S. tax liability before exchanging account holder information on the taxpayer22. The defendants argued that "the CRA could not be expected to interpret and apply the different domestic tax laws of all 92 of its treaty partners. This interpretation of the Convention leads to absurd results"23.

Second, the plaintiffs noted that the information to be exchanged under Article XXVII is limited to taxes to which the treaty applies, and specifically to tax on income and capital. Further, the plaintiffs argued that the tax information reporting requirements of U.S. tax law (on which failure-to-file penalties may apply but for which no tax is calculated) are irrelevant to the tax on income and capital to which the treaty applies and are therefore not subject to the information-sharing provision of Article XXVII24.

On this second point, the defendants counterargued that account information is relevant under Article XXVII because it assists in the administration of U.S. tax laws by "encouraging, enforcing and verifying compliance with those laws by U.S. taxpayers"25. Further, the defendants noted that tax information reporting requirements are similar to those imposed by Canada that do not require information to indicate income or tax liability. In particular, the defendants argued that section 233.3 of the Canadian Income Tax Act requires Canadian taxpayers to report specified foreign property with a cost basis of more than $100,000, including capital held by foreign financial institutions. Further, the report required of Canadian residents by section 233.3 assists the Canadian government in the administration of its tax system, and therefore, a treaty request for information that may be relevant to the enforcement of section 233.3 would be permitted under Article XXVII26.

U.S. Sen. Rand Paul, R-Ky., has used the same "may be relevant" argument under Article XXVII of the U.S. model treaty to block the ratification of all new tax treaties. Paul's position is that the "may be relevant" provisions of Article XXVII violates U.S. taxpayers' Fourth Amendment privacy rights, a position not shared by Robert Stack, Treasury deputy assistant secretary. (Prior coverage.) Further, on July 14, Paul, along with six current and former U.S. c citizens living abroad, filed a lawsuit that challenges the constitutionality of FATCA and foreign bank account reporting. (Prior coverage.)

Third, the plaintiffs argued that not only does Article XXVII limit the information to be exchanged to that which may be relevant to the taxes covered by the treaty, but that it is not meant to apply to blanket disclosures of bank account information27. In support of this argument, the plaintiffs cited the U.S.'s technical explanation to the fifth treaty protocol,28 which provides:

However the language "may be relevant" would not support a request in which a Contracting State simply asked for information regarding all bank accounts maintained by residents of that Contracting State in the other Contracting State, or even all accounts maintained by its residents with respect to a particular bank29.

The plaintiffs then argued that FATCA and the IGA were designed to deliver the very thing that the technical explanation says Article XXVII precludes: the blanket exchange of bank account information. Further, they cited the OECD commentary on the model exchange of information agreement, which says that "the Contracting Parties are not at liberty to engage in fishing expeditions or request information that is unlikely to be relevant to the tax affairs of a given taxpayer." Admittedly this is a very strong argument, and the clear language of the technical explanation is difficult to rebut. However, the defendants offered two counterarguments.

First, the defendants' expert witness, professor John Steines of New York University, noted in his affidavit that a close reading of the technical explanation might not have the same meaning that the plaintiffs attribute to it. In particular, Steines stated:

I note that the requests made by the United States regarding dual citizens residing in Canada are not the subject of the quoted language, which, in contrast, refers to requests made by the United States to Canada regarding U.S. residents30.

In other words, although the technical explanation refers to blanket exchanges of account information, the syntax of the quoted language doesn't support the plaintiffs' position. Specifically, the technical explanation references one state (for example, the U.S.) requesting bank account information from the other state (for example, Canada) on its residents (for example, residents of the U.S.) with financial accounts in the other state (for example, Canada). Since the plaintiffs are not U.S. residents, the quoted technical explanation wouldn't preclude the exchange of their account information.

Second, the defendants noted that the technical explanation is not binding in interpreting the treaty31. Further, the technical explanation should be read in light of when it was written (2007), which was three years before FATCA became law in the U.S. Finally, since the exchange of information under the IGA is similar to the type of information excluded from being exchanged under the technical explanation, it would be unreasonable to interpret the treaty in a manner that excludes this type of information.

Article XXV: Non-Discrimination

The plaintiffs noted that under Article XXV of the treaty, Canada is precluded from subjecting U.S. nationals resident in Canada to taxation or other requirements that are more burdensome than the taxation and connected requirements to which Canadian nationals resident in Canada are or may be subject32. The plaintiffs then argued that the Canadian implementing legislation requires the CRA to deliver to the IRS account holder information for U.S. nationals, but Canadian nationals are not subject to this requirement. In other words, "US persons are accordingly subject to a burden to which other Canadians are not: the burden of having their financial information turned over to a foreign government"33.

The defendants countered that the plaintiffs' reliance on Article XXV is misplaced for three reasons34. First, the IGA and Canadian domestic law do not impose more burdensome requirements on U.S. nationals because the obligations imposed under those bodies apply to financial institutions and not to the U.S. nationals themselves.

Second, the direct burden of disclosing banking information on the plaintiffs is imposed by U.S. law, and only indirectly by Canadian law. Third, U.S. nationals resident in Canada are exposed to the same burdens as are Canadian nationals with U.S. indicia or who are U.S. persons35. Thus, the defendants argued, Article XXV does not preclude the exchange of information.

Conclusion

Counsel for both the plaintiffs and defendants have made compelling arguments to support their positions and to rebut their opponents' positions. Given the complexity of FATCA and international law, their efforts are impressive. More impressive than counsels' efforts, however, is the commitment of the court to render its decision on these frightfully complex issues on such a tight time frame. Given the stakes to the individual plaintiffs and the potential effect of the ruling on FATCA in Canada (and all IGA partner jurisdictions) and CRS, many practitioners anxiously await the court's decision.

 Footnotes

1. "Agreement Between the Government of the United States of America and the Government of Canada to Improve International Tax Compliance through Enhanced Exchange of Information under the Convention Between the United States of America and Canada with Respect to Taxes on Income and Capital,"Feb. 5, 2014, U.S.-Canada.

2. Hiring Incentives to Restore Employment Act, P.L. 111-147, section 501 (Mar. 18, 2010), codified in sections 1471-1474 of the Internal Revenue Code of 1986, as amended (herein referred to as "the code" or "IRC").

3. The court noted that there was an agreement between the parties that Canada would not provide information before Sept. 15, 2015, but that the IGA required information to be provided by Canada on or before Sept. 30, 2015. Justice Martineau indicated that he would seek to publish a decision on the matter before any exchange of information takes place, but in his final comments noted that he would seek to issue a decision before Sept. 30, 2015. He may have misspoken and meant Sept. 15, 2015.

4. Virginia Hillis and Gwendolyn Louise Deegan v. The Attorney General of Canada and The Minister of National Revenue, Court File No.: T-1736-14.

5. The relevant portion of the budget announcement provides as follows:

Canada proposes to implement the common reporting standard starting on July 1, 2017, allowing a first exchange of information in 2018. As of the implementation date, financial institutions will be expected to have procedures in place to identify accounts held by residents of any country other than Canada and to report the required information to the Canada Revenue Agency. As the Canada Revenue Agency formalizes exchange arrangements with other jurisdictions, having been satisfied that each jurisdiction has appropriate capacity and safeguards in place, the information will begin to be exchanged on a reciprocal, bilateral basis. Draft legislative proposals will be released for comments in the coming months.

See http://www.budget.gc.ca/2015/docs/plan/toc-tdm-eng.html (last visited Aug. 11, 2015).

6. See Roy A. Berg and Paul M. Barba, "FATCA in Canada: Analyzing the Canadian Implementing Legislation's Restriction on the Class of Entities Subject to FATCA," 62:3 Canadian Tax Journal 587 (2014), available at http://www.ctf.ca/CTFWEB/EN/Publications/CTJ_Contents/2014CTJ3.aspx.

7. Memorandum of Fact and Law of the Plaintiffs, dated May 8, 2015, at para. 5.

8. "Convention between the United States of America and Canada with Respect to Taxes on Income and on Capital," Sept. 26, 1980, as amended by protocols on June 14, 1883, Mar. 28, 1984, Mar. 17, 1995, July 29, 1997, and Sept. 21, 2007 ("treaty").

9. Both the plaintiffs and the defendants made a variety of creative, elaborate, insightful, and adroit arguments in their submissions to the court. In this article, I do not attempt to address all of the arguments made. Instead, I have attempted to summarize the main points of the primary arguments and provide commentary where it might be helpful.

10. Supra note 7, at para. 49.

11. Motion of Record of the Defendants (Volume 1), dated July 13, 2015, at para. 54.

12. Supra note 7, at para. 61.

13. See American Bar Association Section of Taxation, "Statement of Policy Favoring Reform of Federal Civil Tax Penalties," Apr. 21, 2009.

14. IRC section 6679(b).

15. IRC sections 6155 and 6331.

16. "Information Return of U.S. Persons With Respect To Certain Foreign Corporations." Per IRC section 6038(b) the penalty for failure to file is $10,000 and reduction of foreign tax credits.

17. "Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business." Per IRC section 6038A the penalty for failure to file is $10,000.

18. "Return by a U.S. Transferor of Property to a Foreign Corporation." Per IRC section 6038B the penalty for failure to file is 10 percent of the value transferred with a maximum of $100,000.

19. "Return of U.S. Persons With Respect to Certain Foreign Partnerships." Per IRC section 6038B the penalty is $10,000 or 10 percent of the value transferred to the partnership with a maximum of $100,000.

20. "Statement of Specified Foreign Financial Assets." Per IRC section 6039D the general penalty is $10,000.

21. Supra note 7, at paras. 81-85.

22. Supra note 11, at paras. 80-92.

23. Id. at para. 87.

24. Reply Argument of the Plaintiffs, dated July 30, 2015, at para. 12.

25. Supplementary Motion of Record of the Defendants, dated July 30, 2015, at para. 5.

26. Id.

27. Supra note 7, at paras. 88-100.

28. Dept. of the Treasury, "Technical Explanation of the Protocol Done at Chelsea on Sept. 21, 2007, Amending the Convention Between the United States of America and Canada With Respect to Taxes on Income and on Capital Done at Washington on Sept. 26, 1980, as Amended by the Protocols Done on June 14, 1983, Mar. 28, 1994, Mar. 17, 1995, and July 29, 1997."

29. Supra note 7, at para. 90.

30. Motion Record for the Defendants (Volume I), Affidavit of John P. Steines, at footnote 68. Admittedly, the point is technical, which may be the reason it was relegated to a footnote in Steines's affidavit.

31. Supra note 11, at paras. 91-92.

32. Supra note 7, at paras. 101-104.

33. Id. note 7, at para. 102.

34. Supra note 11, at paras. 101-104.

35. Id.

Moodys Gartner Tax Law is only about tax. It is not an add-on service, it is our singular focus. Our Canadian and US lawyers and Chartered Accountants work together to develop effective tax strategies that get results, for individuals and corporate clients with interests in Canada, the US or both. Our strengths lie in Canadian and US cross-border tax advisory services, estateplanning, and tax litigation/dispute resolution. We identify areas of risk and opportunity, and create plans that yield the right balance of protection, optimization and compliance for each of our clients' special circumstances.

First published in Tax Notes International on August 24, 2015, pp. 635-639.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Moodys Gartner Tax Law LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Moodys Gartner Tax Law LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions