Month: May 2019

20 May 2019

ECJ Rules on Social Security of Seafarers

The European Court of Justice (ECJ) ruled in the case C-631/17 SF v Inspecteur van de Belastingdienst[1] that in cases of seafarers who maintain their residence in their Member State of origin, whilst working for an employer established in a Member State on board a vessel flying the flag of a third State and travelling outside of the territory of the European Union, the applicable national legislation for social security matters is that of the Member State of residence of that person.

ECJ came to this conclusion after considering the case of a Latvian citizen, residing in Latvia who worked as a steward for an undertaking established in the Netherlands, while working on board a vessel flying the Bahamas flag for 6 months outside EU territory.

In the abovementioned judgement, the ECJ reiterated that EU rules relating to the free movement for workers are still applicable when the said employees are carrying out their professional duties outside European Union territory as long as there is a suitably close connection with EU territory.

Having considered that the employment relationship maintained a sufficiently close relationship with EU territory; the ECJ concluded that such cases should fall within the scope of the regulation on the coordination of social security systems and, more particularly, Article 11(3)(e) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, and the national legislation of the Member State of residence of the worker should apply.

The effect of this judgment could possibly mean that employers established in the EU should register and comply with the social security legislation of every EU country where their employees reside even though they work in non-EU countries for a period of time given that the EU connection is upheld. It is also important to note that this ruling might affect sectors outside the shipping industry.

[1]http://curia.europa.eu/juris/document/document.jsf;jsessionid=93A9B342E448491EA857470C354272BB?text=&docid=213862&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=7800158

15 May 2019

Vacancy – Senior Corporate Lawyer

The Senior Corporate Lawyer, who will be reporting to Partners, will be working with both the firm’s legal team as well as the financial services team. The successful candidate will be requested to show initiative, take on certain responsibilities within the firm, work in a multinational environment and will immediately be given the opportunity to further advance their career within the law firm.

Responsibilities:

  • Providing legal advice and legal opinions;
  • Drafting, revising, negotiating and concluding agreements;
  • Drafting / preparing corporate documents such as M&As, resolutions, MFSA forms, pledge agreements etc.
  • Assisting with all corporate ventures such as incorporation, mergers and acquisitions, share transfers, registration of mortgages over vessels, licensing, etc.
  • Liaising directly with the Maltese Registrar of Companies, MFSA, Inland Revenue Department, Registry of Ships  and other national and international governmental authorities;
  • Assisting with reporting requirements to local and overseas regulatory authorities, Undertaking any ad hoc projects as may be required from time to time;
  • Provide training both in-house and to third parties in related sectors;

Requirements:

  • University degree in law (LL.B / LL.D); a Master’s degree (LL.M) will be considered advantageous;
  • A minimum of 5 years of corporate law experience, whilst experience in maritime and tax law will be considered advantageous;
  • Excellent written and verbal communication skills in English, whilst other languages will be considered advantageous;
  • IT literate, with experience of Word, Excel, PowerPoint, database management and other major software applications;
  • Ability to deal with a multi-cultural work environment and client base;
  • Keen to develop his/her experience through training, qualification and continuing professional development;
  • Strong interpersonal and organisational skills and ability to perform under pressure;
  • Experience in negotiating, drafting and closing complex commercial transactions;

Good to Have:

  • Court experience will be considered advantageous
  • Experience in tax, maritime and company law
  • Be pro-active and willing to learn further and develop skills

The chosen candidate will be given exposure to clients in different industries and jurisdictions. S/he can expect a continuous emphasis on intellectual growth and skills development.

Get in touch and let’s discuss further! Send your CV on hr@gmint.com

6 May 2019

The Way Forward: Gender Neutrality and Gender Inclusion

The principle of equality between men and women is a fundamental value constantly on the European Union’s agenda.  Ample EU institutes, programmes, and legislation provide for gender equality, and case law of the Court of Justice of the European Union (‘CJEU’) reaffirms the progress made in this respect.  On a member state level, the enactment of gender neutral laws (particularly in the fields of inheritance law, marriage law, and employment law), may be considered as having reached its culmination in a number of EU member states, in the legal recognition of non-binary people.  In turn, the European Parliament is now actively seeking to bring language evolution at par with gender inclusive legislation.  

In fact, such far-reaching legislative measures are both reflective of and a driving force for cultural developments.  Linguistic developments, particularly politically correct terminology, illustrate cultural shifts. Yet EU gender inclusive legislation is galvanising the transition from gender discrimination towards gender equality by actively promoting gender neutrality and gender inclusion.

The impending need to cater linguistically for gender neutrality and gender inclusion is being progressively addressed by the European Parliament, particularly through its guidelines on ‘Gender-Neutral Language in the European Parliament (the “Guidelines”) issued on July 2018 and its most recent resolution ‘Gender Mainstreaming in the European Parliament on 15th January 2019 on gender mainstreaming in the European Parliament (the “Resolution”). 

In terms of the ‘Gender Identity, Gender Expression and Sex Characteristics Act’[1], Malta has been at the forefront in providing for such legal recognition[2], entitling Maltese citizens the right to request a change of one’s recorded gender in order to match the person’s self-determined gender identity.  Identity Malta issued its first ever gender neutral ID card and passport in January 2018, identifying an individual with the neutral gender marker ‘X’ instead of the traditional ‘M’ or ‘F’[3].  Contrastingly, in the same year the UK High Court ruled that the refusal to issue gender neutral passports is not illegal[4].

Gender neutrality seeks to avoid gender bias while gender inclusion attempts to consider each and every gender[5].  Certain social media platforms recognise well over fifty gender options[6].  While such matters may be legislatively catered for through the use of an ‘X’ in official documents, closing the gap from a linguistic point of view may require a longer period of time, necessitating not only a change in legislation, but even a change in mind-set. 

A reading of the Guidelines indicates that the said may be more inclined towards addressing the eradication of gender discrimination between men and women.  There is no mention of non-binary people throughout the Guidelines; hence to a certain extent the Guidelines cater for a multitude of genders only indirectly through the promotion of gender neutrality.  The General Secretariat of the Council of the European Union tentatively seeks to provide for such unchartered territory; mentioning non-binary people in its inclusive communication guidelines[7].  Nonetheless, the main focus remains on bridging the gap between males and females. 

Bearing in mind its multilingual working environment, the European Parliament highlights and focuses upon (i) the generic use of the masculine gender; (ii) names of professions having male connotations; and (iii) the use of titles indicating a woman’s marital status, as issues which are by and large common to most European languages.  While the Guidelines are addressed towards parliamentary publications and communications and do not cater for legislative drafting, tackling the generic use of the masculine gender may nonetheless prove to be a tough nut to crack, considering the fact that such practice has since time in memorial, been epitomised in legislation itself. 

In light of the context of gender neutrality and gender inclusion, the so-called immortal declaration of “all men are created equal” back in 1776, may no longer be considered as such.  Interpretation acts across the globe (such as the Maltese Interpretation Act[8]) have followed suit, specifically providing that “words importing the masculine gender shall include females”.  The European Parliament recommends the avoidance of the generic use of ‘man’, ‘he’, ‘his’ and other similar terms.  The use of male generic terms, while being grammatically correct, do not convey as much diversity as other pronouns such as ‘they’[9]. In the Guidelines, combined forms (s/he) are discouraged while the alternative use of ‘he or she’ is suggested, provided that this is done sparingly without much repetition.

Despite being geared to address parliamentary publications and communications, the Guidelines may also prove useful within the field of employment by recommending gender neutral drafting of vacancies.    Furthermore, the European Parliament also suggests the use of gender-neutral job titles as alternatives to gender-specific professions.  Ideally, gender-specific terms such as ‘fireman’, ‘air hostess’, ‘chairman’ and spokesman’ are respectively replaced by ‘firefighter’, ‘flight attendant’, ‘chair’ and ‘press officer’.  Needless to say, certain languages, such Maltese and German, being grammatical gender languages, do not easily accommodate gender neutrality.

Moreover, the use of titles denoting a female’s marital status such as ‘Miss’, ‘Fraulein’ and ‘Mademoiselle’, have been perceived as frustratingly irksome, to say the least, particularly in light of a lack of an equivalent term denoting marital status for ‘Mr’, ‘Herr’ and ‘Monsieur’.  The European Parliament recommends the replacement of such marital indicative titles by ‘Ms’, ‘Frau’ and ‘Mademoiselle’, provided that the person does not specifically wish to be addressed otherwise.[10]

In point of fact, gender neutral language may prove to be rather controversial.  Suffice to recall the French declaration in October 2017 wherein gender neutral language was deemed to be an ‘aberration’, placing the French language into ‘immortal danger’[11].  Arguments against gender neutral drafting include the alleged triviality behind it, the rigidity of legal language, the aesthetical aspect, and the alleged confusion[12].  In actual fact, both gender biased language and gender neutral language may be perceived as ambiguous[13].

Despite all arguments against gender neutral language, this modernised way of writing is in all likelihood here to stay.  While welcoming the Guidelines, amongst others, the Resolution demonstrates Parliament’s intention of moving on to addressing gender equality in relation to all genders.  Gender mainstreaming is defined as “addressing the rights, perspectives and well-being of women, girls, LGBTIQ people and people of all gender identities”.  Although the tremendous progress achieved in gender equality cannot be disregarded, gender discrimination and gender stereotypes still prevail.  The Resolution stresses that that gender equality is suffering major setbacks on both European as well as on local state levels. 

Gender neutrality and gender inclusion in the language ultimately necessitates awareness, knowledge and a commitment towards achieving the same.  A strenuous challenge in gender neutral drafting lies ahead but manning up is most certainly not the way to go about it. 

[1] Chapter 540 of the Laws of Malta

[2] Other jurisdictions across the globe include Austria, Denmark, the Netherlands, Germany, India, Australia, and Uruguay.

[3]<https://www.maltatoday.com.mt/news/national/83920/malta_releases_first_passport_with_neutral_x_gender_marker#.XGVoa-hKjIU> accessed 14 February 2019

[4] <https://www.standard.co.uk/news/uk/genderneutral-passport-case-to-be-appealed-in-the-high-court-a3985106.html> accessed 14 February 2019

[5] Constanza Toro, ‘Gender neutral drafting: Gender equality or an unnecessary burden?’ [2018]

[6] <https://www.telegraph.co.uk/technology/facebook/10930654/Facebooks-71-gender-options-come-to-UK-users.html> accessed 14 February 2019

[7] General Secretariat, ‘Inclusive Communication in the GSC’, [2018]

[8] Chapter 249 of the Laws of Malta.

[9]Josefine Bjørnson, ‘Gender-Inclusive Language in English’, [2017]

[10] While certain countries, such as Malta may prefer the use of ‘Ms’, other countries, such as Greece, may prefer the adoption of the term ‘Mrs’ even for unmarried women, finding the former offensive nonetheless.  

[11] <https://www.euronews.com/2017/11/21/french-prime-minister-says-non-to-gender-neutral-language> accessed 14 February 2019

[12] Toro (n 6).

[13] Ibid.

2 May 2019

Immutability in a smart contract: a blessing or a curse?

Smart contracts are contracts which are written in computer code on a blockchain according to the terms set out by the parties to such contract and which are self-executing in the manner pre-determined by said code.  Nick Szabo, known for being the creator of smart contracts, famously described them as “A set of promises, specified in digital form, including protocols within which the parties perform on these promises”[1].  He also used the “vending machine” analogy, hailing it as being the “primitive ancestor of smart contracts”, to further explain the way they work by noting that the machine takes in coins, and via a simple mechanism, dispenses both change and product fairly.

The most salient characteristics of smart contracts include:

  • Autonomy: This implies that once the deal has been set and the smart contract has been set into motion, it will take place with no participation by the parties.  This guarantees that the promised obligations would be executed as planned, e.g. in the case of a sale, provided that the contract is coded correctly, there cannot be any doubt that the funds would be transferred without a transfer of title or vice versa.
  • Accuracy: Since the smart contract operates in a pre-set manner and without the need for human intervention, there is no room for human error.  Said possibility for error is also reduced since the smart contract replaces heaps of paperwork that are normally required to execute a transaction.  Once again, this benefit only exists provided that the code is written correctly.
  • Immutability: Once a smart contract is deployed, the code cannot be changed by a party unilaterally.

The immutability feature is hailed by many being as a blessing since the performance of the contract is guaranteed to take place in exactly the same manner in which it is coded; the contract does not allow for any modifications and/or reversal.  Furthermore, unless programmed to do otherwise, it will remain on the blockchain forever and cannot be misplaced or lost.  The history of the transactions forming part of the contract is also recorded on the blockchain forever and thus this too makes for greater transparency and safekeeping.

However, the dark side of the immutability concept in smart contracts lies mainly in the fact that in the event of any errors made in the code, the immutability feature of a smart contract prevents it from being rectified.  Should a weakness or error in said contract be detected following deployment of the contract, the latter would simply have to continue to run its course with potentially devastating consequences.  Similarly, in the event that circumstances change, also requiring an amendment to this contract, this also cannot be done. 

Apart from these being negative factors in themselves, they lead to further negatives in that they give rise to the need for extensive and possibly expensive reviews of the smart contract prior to its deployment since they would be impossible to alter should the need arise. 

[1] Nick Szabo: “Smart Contracts: Building Blocks for Digital Markets”, (1996)