United States: Supreme Court’s Windsor Decision May Create Opportunities For Tax Savings (Financial Services Alert - August 27, 2013)

Last Updated: September 3 2013
Article by Robert M. Kurucza

Edited by: Eric R. Fischer, Jackson B.R. Galloway and Elizabeth Shea Fries

Goodwin Procter issued a  client alert that provides recommendations regarding potential income, gift and estate tax savings for same-sex married couples in light of the Supreme Court's decision in United States v. Windsor, which struck down a portion of the Defense of Marriage Act ("DOMA"), and discusses the uncertainties that remain for same-sex married couples under the portions of DOMA not addressed in the Windsor decision.

CFTC Harmonizes Rules Applicable to CPOs of Registered Investment Companies and Modifies Requirements for All CPOs

The CFTC adopted rule amendments (the "Harmonization Rule") designed to harmonize certain CFTC compliance obligations that apply to commodity pool operators ("CPOs") of investment companies registered under the Investment Company Act of 1940 (the "1940 Act") ("RICs") with the compliance obligations imposed on RICs by the SEC.  Through the Harmonization Rule, the CFTC has, in effect, adopted a "substituted compliance" regime for CPOs of RICs that is based largely upon adherence to the SEC's statutory and regulatory compliance regime.  As stated in the adopting release for the Harmonization Rule (the "Adopting Release"), the CFTC "will accept compliance by [CPOs of RICs] with the disclosure, reporting and recordkeeping regime administered by the SEC as substituted compliance with part 4 of [CFTC] regulations."  The Harmonization Rule should be substantially less burdensome for CPOs of RICs than the CFTC's original harmonization proposal.  In addition to the Harmonization Rule, the CFTC adopted rule changes that apply to all CPOs; these changes affect the updating and acknowledgement requirements for disclosure documents and CPO recordkeeping obligations.


As described in the  February 14, 2012 Financial Services Alert (the "February 2012 Alert"), the CFTC previously adopted changes to part 4 of its regulations involving registration and compliance obligations for CPOs and commodity trading advisors ("CTAs").  Among other things, the CFTC amended Rule 4.5 (the "Rule 4.5 Amendments") to impose additional conditions on the ability of RICs to effect transactions in futures and swaps without the need for CPO registration by a RIC's investment adviser.  In general, the Rule 4.5 Amendments increased the number of conditions a RIC must meet for its adviser to be able to claim relief from CPO registration, in part by reinstating trading and marketing conditions that were part of Rule 4.5 prior to 2003.  At the time, the CFTC also issued a proposal (the "Harmonization Proposal") designed to facilitate compliance with the CFTC's disclosure, reporting, and recordkeeping requirements by CPOs of RICs no longer able to rely on Rule 4.5, as described in the February 2012 Alert.  While CPOs of RICs no longer able to claim the exemption from CPO registration were required to register as of the end of 2012, the CFTC suspended most of the obligations that would have applied to CPOs of RICs under part 4 of the CFTC's regulations, pending final action on the Harmonization Proposal.

The Harmonization Rule – CPOs of RICs

The Harmonization Rule provides an exemption from most of the compliance obligations imposed on CPOs of RICs under the Commodity Exchange Act ("CEA") if the following broad conditions are met:

  • the CPO (and as applicable, the RIC it advises) complies with the disclosure requirements of the 1940 Act, the Securities Act of 1933 (the "1933 Act"), the Securities Act of 1934, the rules and regulations promulgated thereunder and any guidance issued by the SEC and its staff (collectively, the "SEC RIC Rules");
  • the CPO (and as applicable, the RIC it advises) complies with conditions, as described in CFTC Rule 4.12(c), keyed to certain CFTC rules from which the Harmonization Rule provides an exemption, which are discussed in greater detail below; and
  • the CPO files a notice with the National Futures Association ("NFA") that the CPO is relying on the relief provided by the Harmonization Rule.

The Adopting Release notes that any failure to comply with the SEC RIC Rules will constitute a violation of the CPO's obligations under part 4 of the CFTC's regulations and subject the CPO to enforcement action by the CFTC.

Filing and Updating Requirements 

The CPO of a RIC relying on the Harmonization Rule is exempt from the requirement in CFTC Rule 4.26(d) that a CPO submit its disclosure documents to the NFA prior to distributing them to participants; however, those documents must be made available to the NFA during the course of an examination.  The CPO of a RIC relying on the Harmonization Rule is similarly exempt from the disclosure document updating requirements of CFTC Rule 4.26(a)(2) and, accordingly, will be permitted to update fund documents in accordance with the SEC RIC Rules.  CFTC Rule 4.26(c) requires a CPO to correct material inaccuracies in a disclosure document within twenty-one days of the date upon which the CPO first becomes aware of the defect.  The CPO of a RIC relying on the Harmonization Rule is exempt from this requirement and need only comply with the disclosure updating requirements under the SEC RIC Rules.

Delivery of Disclosure Documents

The CPO of a RIC relying on the Harmonization Rule is exempt from CFTC Rule 4.21, which requires a CPO to deliver a disclosure document to each prospective participant, and obtain from that prospective participant a signed acknowledgment of receipt of the disclosure document before accepting or receiving funds from that participant, if the CPO complies with the disclosure delivery requirements under the SEC RIC Rules, which includes the use of a summary prospectus.  The CPO of a closed‑end RIC relying on the Harmonization Rule is not required to maintain current disclosure documents if the RIC is not soliciting participants.

Performance Disclosure

CFTC Rules 4.24(n) and 4.25 require a significant amount of disclosure regarding a commodity pool's past performance, including, in the case of a commodity pool with less than a three-year operating history, disclosure of the past performance of each other pool and account that the CPO has operated.  A CPO relying on the Harmonization Rule is exempt from the performance disclosure requirements under Rules 4.24(n) and 4.25 with respect to a RIC it advises, provided that in the case of a RIC that has less than a three-year operating history, it discloses the performance of all accounts and pools managed by the CPO that have investment objectives, policies and strategies that are substantially similar to those of the RIC.

On the same day that the CFTC issued the Adopting Release, the SEC's Division of Investment Management issued IM Guidance Update No. 2013-05 (the "IM Guidance Update") to provide guidance on disclosure and compliance matters relating to the use of derivatives by RICs.  (See  here for more on the IM Guidance Update).  In relevant part, the IM Guidance Update reaffirms the previously expressed views of the SEC staff to the effect that a RIC "may include in its prospectus information concerning the performance of private accounts and other funds managed by the [RIC's] adviser that have substantially similar investment objectives, policies and strategies to the [RIC], provided that the information is not presented in a misleading manner and does not obscure or impede understanding of information that is required to be included in the [RIC's] prospectus (including the [RIC's] own performance information)."

Legends (Cautionary Statements) and Risk Disclosures

Cautionary Statement.  CFTC Rule 4.24(a) requires a specific "cautionary statement" to appear prominently on the cover page of the CPO's disclosure document.  The Harmonization Rule permits the CPO of a RIC to satisfy the CFTC cautionary statement requirements through appropriate modification of the prospectus legend required by Rule 481 under the 1933 Act, as specified in the Adopting Release.  Similarly, the IM Guidance Update provides that the SEC staff will not object if a RIC whose adviser registers as a CPO incorporates required CFTC cautionary statement disclosures into the Rule 481 prospectus legend.

Risk Disclosure.  CFTC Rule 4.24(b) requires a disclosure statement regarding standard risks associated with the use of commodity interests.  A CPO relying on the Harmonization Rule is exempt from including the standard risk disclosure statement of Rule 4.24(b) if the RIC it advises complies with the disclosure requirements under the federal securities laws, including the SEC RIC Rules.

CFTC Rule 4.24(g) requires the inclusion of a commodity pool's principal risk factors in its disclosure document.  The CPO of a RIC relying on the Harmonization Rule satisfies this obligation by complying with the disclosure requirements of Forms N-1A and N-2, and related guidance from the SEC staff, including the IM Guidance Update and the 2010 letter from the Division of Investment Management regarding disclosure about derivatives (described in the August 17, 2010 Financial Services Alert).  The Adopting Release further notes that CPOs of RICs must comply with any applicable SEC guidance that may be issued in the future regarding these disclosure requirements, "which the [CFTC] will evaluate for consistency with its own regulatory interests."

Break-Even Point and Fee Disclosure

CFTC Rule 4.24(d)(5) requires CPOs to include in the forepart of the disclosure document the break-even point per unit of initial investment.  The CPO of a RIC relying on the Harmonization Rule is exempt from the disclosure requirements of Rule 4.24(d)(5) if the RIC is in compliance with the SEC RIC Rules.

Other Conditions for Reliance on the Substituted Compliance Regime

In addition to the conditions and requirements described above, a CPO and, as applicable, any RIC it advises, seeking to rely on the Harmonization Rule must:

  • cause the current net asset value per share of a RIC to be available to all participants;
  • cause shareholder reports required under the SEC RIC Rules to be accessible on a website maintained by the CPO or its designee or otherwise be made available to participants and disclose the internet address of the website, if applicable; and
  • file with the NFA the RIC's financial statements required under the SEC reporting regime.

Controlled Foreign Corporations

The Adopting Release reaffirmed the CFTC's view that a controlled foreign corporation ("CFC") used by a RIC may fall within the definition of a "commodity pool" depending on the CFC's activities.  The Adopting Release states that if a RIC provides disclosure regarding the activities of a CFC in accordance with SEC RIC Rules, the CFC will not be required to prepare a separate disclosure document that complies with part 4 of the CFTC regulations.  Further, if the CFC's financial statements are consolidated into those of its parent RIC that are filed by the RIC with the NFA, the CFTC will not require the CFC to file separate financial statements.

Form CPO-PQR and CPO-PR Filing Requirements

When the CFTC adopted the Rule 4.5 Amendments, it also established reporting requirements for CPOs and CTAs on new Forms CPO-PQR and CTA-PR, respectively, but suspended compliance with these requirements for CPOs and CTAs of RICs pending final action on the Harmonization Proposal.  The Adopting Release provides that in conjunction with the adoption of the Harmonization Rule, CPOs and CTAs of RICs will generally become subject to applicable Form CPO-PQR and CTA-PR filing requirements beginning October 21, 2013.  The NFA has similar reporting requirements on NFA Form PQR (and soon, NFA Form PR).  The NFA's website summarizes the requirements for the CFTC and NFA reporting forms.

Rule Changes for All CPOs

In conjunction with the Harmonization Rule, the CFTC also adopted the following changes to its regulations under part 4 that will apply to all CPOs regardless of the type of commodity pool:

  • CPOs may use third-party service providers to maintain their books and records subject to certain conditions.
  • A CPO is no longer required to secure a signed acknowledgment of receipt of the disclosure document for a pool before the CPO may accept or receive funds from that participant.  
  • CPOs may update their disclosure documents on a 12-month basis instead of a 9-month basis.

Effective Dates

The Harmonization Rule generally became effective upon publication of the Adopting Release in the Federal Register, which occurred on August 22, 2013.  Requirements relating to delivery of the disclosure document, legends (cautionary statements) and risk disclosures and performance disclosures are subject to the following compliance dates: (a) for open-end RICs, the later of  September 23, 2013 and (A) for new funds, upon filing initial registration statement with SEC on Form N-1A and (B) for existing funds, the first post-effective amendment that is an annual update to an effective registration statement on Form N-1A; and (b) for closed-end RICs, the later of  September 23, 2013 and (x) for new funds, upon filing initial registration statement with SEC and (y) for existing funds, when fund is required to update its registration statement.  The rule change applicable to all CPOs permitting the use of third-party service providers for the maintenance of books and records, subject to certain conditions, becomes effective September 23, 2013.  The rule changes applicable to all CPOs rescinding the signed acknowledgement requirement and extending the updating cycle of the disclosure document became effective on August 22, 2013.

SEC Staff Provides Further Guidance to Registered Funds on Derivatives

In IM Guidance Update No. 2013-05, the staff of the SEC's Division of Investment Management provided further guidance on disclosure and compliance matters relating to the use of derivatives by registered funds.  The Guidance Update echoes staff positions on disclosure in registered fund registration statements relating to derivatives use and related risks provided in the 2010 staff guidance on derivatives use by registered funds described in the August 17, 2010 Financial Services Alert.  Following a discussion of the role of disclosure review in fund compliance programs and SAI disclosure regarding a fund board's role in risk oversight, the Guidance Update notes that the Division has created a Risk and Examinations Office that is responsible for analyzing and monitoring the risk management activities of investment advisers, investment companies, and the investment management industry.  This newly formed group has begun to work closely with the SEC examination staff to make onsite visits to investment management firms designed to increase the staff's understanding of firms' risk management activities, including risk management activities related to commodity interests and other derivatives.  Acknowledging rule changes adopted by the CFTC to harmonize its regulation of registered fund CPOs with SEC regulation of the funds themselves, the Guidance Update states that the staff will not object if a fund whose adviser CPO is seeking to rely on the "substituted compliance" now permitted under  CFTC rules includes the required CFTC legend in the prospectus legend regarding the absence of SEC approval or disapproval of the fund offering required by Rule 481 under Securities Act of 1933.  (See  here for more on the CFTC's substituted compliance regime for registered fund CPOs.)  The Guidance Update also provides reminders of staff positions on the use of an adviser's related performance in fund registration statements.

FRB Issues Paper on Capital Planning at Large Bank Holding Companies

The FRB issued a paper (the "Paper") entitled "Capital Planning at Large Bank Holding Companies: Supervisory Expectations and Range of Current Practice."  The FRB's capital planning rule requires all U.S.-domiciled, top-tier bank holding companies with $50 billion or more of total consolidated assets ("Covered BHCs") to have a capital plan "supported by a robust process for assessing their capital adequacy."

There were 18 Covered BHCs tested by the FRB in its 2013 cycle, and there will be 30 Covered BHCs reviewed by the FRB in its 2014 testing cycle (which the FRB said will begin in the Fall of 2013).  The FRB stated that Covered BHCs "have considerably improved their capital planning processes in recent years, but have more work to do to enhance their practices for assessing the capital they need to withstand stressful economic and financial conditions,...."  Among the weaknesses cited by the FRB in some Covered BHCs' capital planning processes were an inability to show how all risks were accounted for during the capital planning process, using stress-test scenarios and modeling techniques that failed to address distinct vulnerabilities of the Covered BHC's business model, unrealistic loss projections and failure to articulate clearly the Covered BHC's strategy for maintaining a capital buffer during a time of financial stress.

The Paper describes the FRB's supervisory expectations for the capital planning of Covered BHCs in light of the seven principles of effective capital adequacy process listed below:

  • Sound foundational risk management
  • Effective loss-estimation methodologies
  • Solid resource-estimation methodologies
  • Sufficient capital adequacy impact assessment
  • Comprehensive capital policy and capital planning
  • Robust internal controls
  • Effective governance

In the Paper, the FRB describes what it regards as leading capital planning practices, but warns that adoption of the identified leading practices does not offer a "safe harbor" to a Covered BHC.  In addition, the FRB emphasized that a Covered BHC should have "a systematic and repeatable process to identify all risks and consider the potential impact to capital from those risks."  In the Paper the FRB also discusses the important roles to be played by a Covered BHC's Board and Senior Management in ensuring that a standardized and effective capital planning process is established and regularly updated.

Although the FRB's Paper applies only to Covered BHCs and the FRB has heightened supervisory expectations for the largest and most complex BHCs, it is clear that the FRB expects that BHCs that are not large enough to be Covered BHCs should nonetheless have in place capital planning processes that reflect their smaller size and lower level of complexity.

OCC Issues Updated Guidance on Commercial Real Estate Lending

The OCC issued a "Commercial Real Estate Lending" booklet (the "Booklet") that is part of the Comptroller's Handbook and that updates the OCC's guidance for bank examiners and bankers and replaces its 1995 booklet entitled "Commercial Real Estate and Construction Lending."  The Booklet's updated guidance includes revised or new discussions concerning supervisory expectations and regulatory requirements for prudent loan workouts, management of concentrations, stress testing, interagency appraisal guidelines, and statutory and regulatory developments in environmental risk management.  The Booklet also provides expanded guidance for acquisition, development and construction lending.  The OCC stated that other new or expanded discussions contained in the Booklet address "supervisory loan-to-value, project feasibility, investor-owned residential real estate, amortization, debt yield, owner-occupied real estate, environmental risk management, and underwriting considerations for various property types."  The Booklet provides an internal control questionnaire and verification procedures for bank examiners and an appendix with a useful list of OCC guidance on commercial real estate lending and related topics.

FinCEN Issues Analysis of Mortgage Loan Fraud Suspicious Activity Report Filings; Notes Drop Over Previous Calendar Year

On August 20, 2013, the Financial Crimes Enforcement Network ("FinCEN") issued a report (the "Report") on mortgage loan fraud suspicious activity report ("MLF SAR") filings in calendar year 2012 ("CY 2012"), noting a 25% decrease in such filings over the previous year (from 92,561 to 69,277).  While MLF SAR filings were down, the total number of Suspicious Activity Reports by Depository Institutions increased by 9%, to 867,990, and FinCEN received 102,913 reports on the FinCEN SAR.  The Report noted that MLF SAR filings had grown every year between 2001 and 2011 and speculated that the CY 2012 decline was the result of an unusual spike in MLF SAR filings during calendar year 2011 (prompted by mortgage repurchase demands on banks that yielded reviews of mortgage loan origination and refinancing documents).  The Report analyzes time lapses between the filing of MLF SARs and the suspicious activities themselves, noting that mortgage loan fraud typically occurs at the origination of the loan, but is sometimes not discovered and reported until several years later (in CY 2012, 57% of reported MLF activities commenced more than 5 years prior to the filing).  The Report also review the suspicious activity amounts and loss amounts reported on the MLF SARs, assesses MLF SAR reporting by state and provides updated statistics on foreclosure rescue-related SARs filed during CY 2012, noting that filings indicating "foreclosure rescue" were up despite the overall drop in MLF SAR filings.  FinCEN anticipates continued law enforcement interest in types of mortgage fraud, and noted that the new FinCEN SAR enables the filer to more clearly identify various types of mortgage-related fraud.

Goodwin Procter LLP is one of the nation's leading law firms, with a team of 700 attorneys and offices in Boston, Los Angeles, New York, San Diego, San Francisco and Washington, D.C. The firm combines in-depth legal knowledge with practical business experience to deliver innovative solutions to complex legal problems. We provide litigation, corporate law and real estate services to clients ranging from start-up companies to Fortune 500 multinationals, with a focus on matters involving private equity, technology companies, real estate capital markets, financial services, intellectual property and products liability.

This article, which may be considered advertising under the ethical rules of certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin Procter LLP or its attorneys. © 2013 Goodwin Procter LLP. All rights reserved.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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.


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.


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