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Discover thought leadership and legal insights by our legal experts from across CMS. In our Expert Guides, written by CMS lawyers from across the jurisdictions where we operate, we provide you with in-depth legal research and insights that can be read both online and offline. You can also find Law-Now articles, newsletter and other publications with focused legal analysis, commentary and insights to help you anticipate future challenges and much more.



Media type
Expertise
15/09/2022
Boom & Gloom? CMS European M&A Out­look 2023
We are pleased to share with you the 2023 edi­tion of the European M&A Out­look pub­lished by CMS in as­so­ci­ation with Mer­ger­mar­ket.
13/09/2022
Open secrets? Guard­ing value in the in­tan­gible eco­nomy
Some leaks can’t be fixed “Con­fid­en­tial in­form­a­tion is like an ice cube... give it to the party who has no re­fri­ger­at­or or will not agree to keep it in one, and by the time of the tri­al you have just a pool of wa­ter.” This, from the so-called Spycatch­er case (1987), ap­plies well to cor­por­ate as­sets: fail to store them cor­rectly and all you might have left is an ex­pens­ive mess.The con­sequences of even a minor ex­pos­ure of a trade secret can be huge. As this re­port re­veals, the pro­tec­tion of trade secrets is rightly re­cog­nised by most seni­or ex­ec­ut­ives as a pri­or­ity is­sue. But the re­search also re­veals gaps that leave com­pan­ies un­ne­ces­sar­ily ex­posed to risks. The top named threats – cy­ber­se­cur­ity at­tacks and em­ploy­ee leaks – res­on­ate with what we see im­pact­ing our cli­ents. In­creased home and re­mote work­ing is strain­ing se­cur­ity meas­ures and em­ploy­ee loy­alty. Ad­ded to this, an ‘in­nov­ate or die’ at­ti­tude in highly-com­pet­it­ive sec­tors can mo­tiv­ate new join­ers to ar­rive with ques­tion­able ma­ter­i­al from their pre­vi­ous em­ploy­er, or worse: out­right theft between com­pet­it­ors. But while it is easy to fo­cus on the lurk­ing threats from weakened cy­ber se­cur­ity and dis­gruntled em­ploy­ees – and they are im­port­ant – there are more routine ac­tions a com­pany can take to safe­guard its secrets than just up­dat­ing its IT sys­tems or the em­ploy­ee hand­book. Com­monly, those who most need our help already have a trade secrets policy but have not prop­erly im­ple­men­ted it in re­la­tion to the secret in ques­tion. Or the policy has not been up­dated to re­flect the in­tan­gible as­sets the busi­ness now owns. Or pro­tec­tion was taken for gran­ted.With trade secrets – which for many busi­nesses are stra­tegic­ally more im­port­ant than a pub­lic pat­ent port­fo­lio – it is al­ways cost­li­er and messi­er to find solu­tions after a theft or a leak. Identi­fy­ing the trade secrets and the threats posed to them, com­bined with rig­or­ous in­tern­al pro­cesses and well-draf­ted con­tracts, can help pre­vent such prob­lems from hap­pen­ing. Harder, but just as ne­ces­sary, is en­ga­ging hearts and minds in cor­por­ate cul­ture, to know why trade secrets are im­port­ant, why we are all are re­spons­ible for pro­tect­ing them, and what may hap­pen if we do not (to both the com­pany and the in­di­vidu­al). In our ex­per­i­ence, the busi­nesses with the strongest de­fences have not only thought stra­tegic­ally about their in­tan­gible as­sets and how best to pro­tect them but are also pre­pared for the worst. The trick to avoid­ing an as­set be­com­ing a crisis is to be wise be­fore the event.
06/07/2022
Re­pur­pos­ing Real Es­tate: The fu­ture of the world's towns and cit­ies
A rad­ic­al re­think for glob­al prop­erty – and where we live, work and play As the real es­tate world emerges from the pan­dem­ic it is clear that all around us the urb­an land­scape is chan­ging. Many prop­er­ties are ob­sol­ete but also have ex­cit­ing fu­tures with new uses. Our town centres and cit­ies are un­der­go­ing fun­da­ment­al change – which all adds up to a world fo­cused on Re­pur­pos­ing Real Es­tate.Now in its tenth year, our Real Es­tate Thought Lead­er­ship series has covered top­ics such as the rise of in­ter­na­tion­al in­vest­ment in the UK, the growth of tech, the fu­ture of the of­fice, the rap­id rise of in­dus­tri­al & lo­gist­ics and the ar­rival of build-to-rent as a ma­jor as­set class.This year, with the Gov­ern­ment hav­ing pub­lished its Lev­el­ling Up & Re­gen­er­a­tion Bill, we fo­cus on the fu­ture of towns and cit­ies not only in the UK but in a series of key glob­al in­vest­ment hubs: Ger­many, France, the Neth­er­lands, Spain, Singa­pore and the United Ar­ab Emir­ates.After two years of lock­downs, work­ing, shop­ping and so­cial­ising at home, a de­bate is ra­ging about the fu­ture of town and city centres. Will they re­cov­er? How will they look in ten years? Will urb­an­isa­tion go in­to re­verse? And what does this mean for the real es­tate world?In `Re­pur­pos­ing Real Es­tate’ we provide the first an­swers hav­ing polled more than 300 lead­ing in­dustry pro­fes­sion­als and al­most 15,000 glob­al con­sumers.The res­ults are fas­cin­at­ing: al­most a third of real es­tate is ear­marked for con­ver­sion – with re­tail and of­fices to hous­ing the most pop­u­lar choices. Con­sumers want more green and open space, hav­ing spent too long con­fined to their own homes.But the good news is that in­vestors, hav­ing come through the pan­dem­ic, are still con­fid­ent in real es­tate as an as­set class. The big changes will be in what prop­erty they in­vest in, mean­ing the places we live, work and play in may be very dif­fer­ent in the years to come.
30/06/2022
Hand­ling the new EU and UK sanc­tions against Rus­sia
Latest up­date: 29 June 2022
28/06/2022
Tech­no­logy Trans­form­a­tion: Man­aging Risks in a Chan­ging Land­scape
Chan­ging tech, chan­ging risks
14/06/2022
CMS European Real Es­tate Deal Point Study 2022
Real es­tate in­vest­ment mar­kets re­main stable whilst buy­ers con­tin­ue to catch up in con­trac­tu­al risk al­loc­a­tion Lo­gist­ics as­sets more pop­u­lar than ever­De­mand from in­ter­na­tion­al in­vestors reaches re­cord high ac­count­ing for 55% of deals, with most in­ter­na­tion­al in­vestors still be­ing from with­in Europe­In­creased de­sire for se­cur­ity on the part of sellers con­tin­ued to be a fea­ture in 2021: share of trans­ac­tions in which the buy­er­'s pay­ment ob­lig­a­tions are se­cured reaches an­oth­er re­cord high­Buy­er-friendly trend in con­trac­tu­al risk al­loc­a­tion con­tin­ues as seller-friendly pro­vi­sions on lim­it­a­tion of li­ab­il­ity con­tin­ue to de­clineThe European real es­tate in­vest­ment mar­ket ap­pears to have largely re­covered from the con­sequences of the COV­ID-19 pan­dem­ic in 2021. Com­pared to the pan­dem­ic-stricken pre­vi­ous year, total in­vest­ment in­creased by around 15% to ap­prox­im­ately EUR 270 bil­lion, mark­ing a re­turn to the pre-crisis level.Lo­gist­ics as­sets per­formed par­tic­u­larly well last year, hav­ing be­come the fo­cus of in­vestors’ at­ten­tion due to their stable in­come flows and the on­go­ing growth of on­line shop­ping. De­mand from in­ter­na­tion­al in­vestors was also up again in 2021, with in­tra-European trans­ac­tions be­ing the rule. 2021 also brought a new re­cord high in the num­ber of trans­ac­tions in which the buy­er­'s pay­ment ob­lig­a­tions were se­cured. With re­gard to con­tract design, the buy­er-friendly trend con­tin­ued, as re­flec­ted es­pe­cially by a de­crease in de min­imis and bas­ket clauses as well as caps. Lo­gist­ics as­sets more pop­u­lar than ever Of­fice prop­er­ties were a pop­u­lar as­set class in 2021 des­pite all the un­cer­tainty sur­round­ing the COV­ID-19 pan­dem­ic, al­though some mar­ket share was lost to lo­gist­ics and res­id­en­tial. The slight down­ward trend in of­fice trans­ac­tions handled by CMS seen in pre­vi­ous years non­ethe­less con­tin­ued, with their share de­clin­ing from 30% in 2020 to 19%. The reas­on for the de­clin­ing pro­por­tion of trans­ac­tions in the of­fice seg­ment is likely to be two-fold, com­bin­ing the lack of avail­able core prop­er­ties and the cur­rent un­cer­tainty around the im­pact of hy­brid ways of work­ing on de­mand for of­fice space.The res­id­en­tial and lo­gist­ics as­set classes on the oth­er hand were es­pe­cially pop­u­lar in 2021, each with a mar­ket share of 23%, com­pared to 22% and 19% re­spect­ively in 2020. One of the key factors for this trend was the stable in­come gen­er­ated by res­id­en­tial and lo­gist­ics prop­er­ties, which is par­tic­u­larly at­tract­ive to in­vestors. Lo­gist­ics as­sets ad­di­tion­ally be­nefited from the on­go­ing growth of on­line shop­ping, which was boos­ted re­cently by the COV­ID-19 pan­dem­ic and the re­lated clos­ure of re­tail shops, lead­ing to an in­creased need for de­liv­ery and dis­tri­bu­tion centres. High de­mand from in­ter­na­tion­al, mostly in­tra-European, in­vestors In­ter­na­tion­al in­vestors were more act­ive again last year: they ac­coun­ted for 55% of deals in 2021, com­pared to 43% in 2020. In 2020, in­ter­na­tion­al in­vestors had a dif­fi­cult time, not least due to the im­pact of the COV­ID-19 pan­dem­ic. The as­so­ci­ated travel re­stric­tions meant that many in­ter­na­tion­al in­vestors from oth­er con­tin­ents were forced to post­pone their planned trans­ac­tions. The prop­erty mar­ket seems to have re­covered from these ef­fects last year, with a new re­cord 55% of trans­ac­tions in­volving for­eign in­vestors. However, these for­eign in­vestors were mostly from with­in Europe; the num­ber of in­ter­con­tin­ent­al trans­ac­tions re­mained be­low pre-pan­dem­ic levels in 2021. Sellers seek se­cur­ity An in­creased de­sire for se­cur­ity on the part of sellers con­tin­ued to be a fea­ture in 2021. The share of trans­ac­tions in which steps were taken to en­sure that the buy­er met its fin­an­cial ob­lig­a­tions rose fur­ther in 2021. Sellers were gran­ted se­cur­ity in more than two thirds of cases (70%). This trend is con­sist­ent with 2020, when an in­creased de­sire for se­cur­ity on the part of sellers was already ap­par­ent. In con­trast, se­cur­ity was agreed in less than 50% of all trans­ac­tions in the peri­od from 2015 to 2018. The cur­rent high level is due in part to an in­creased de­sire for se­cur­ity on the part of sellers as a res­ult of the COV­ID-19 pan­dem­ic; they were of­ten un­cer­tain about the buy­er’s solvency go­ing for­ward. Buy­ers con­tin­ue to catch up in con­trac­tu­al risk al­loc­a­tion Buy­ers were able to catch up fur­ther in terms of con­trac­tu­al risk al­loc­a­tion. The pro­por­tion of trans­ac­tions with seller-friendly de min­imis clauses and bas­ket clauses (i.e. clauses that provide for a threshold or min­im­um lim­it for guar­an­tee claims by the buy­er) stag­nated or de­clined some­what com­pared with the pre­ced­ing years. In the pre­vi­ous year, after a no­tice­able de­cline, agree­ments aimed at lim­it­ing li­ab­il­ity were made in 44% (de min­imis clauses) and 41% (bas­ket clauses) of cases. The share of deals with a bas­ket clause fell fur­ther to 32% in 2021. As in 2020, a de min­imis clause was in­cluded in 44% of the trans­ac­tions ana­lysed. A sim­il­ar trend was seen in con­trac­tu­ally-agreed li­ab­il­ity caps. Whilst the pro­por­tion of trans­ac­tions with a cap was well over 60% in some cases in the years up to 2018, the per­cent­age of agree­ments with a con­trac­tu­ally-agreed max­im­um li­ab­il­ity fell slightly from 56% in 2020 to 50%.
01/06/2022
CMS Next
What’s next? In a world of ever-ac­cel­er­at­ing change, stay­ing ahead of the curve and know­ing what’s next for your busi­ness or sec­tor is es­sen­tial.At CMS, we see ourselves not only as your leg­al ad­visers but also as your busi­ness part­ners. We work to­geth­er with you to not only re­solve cur­rent is­sues but to an­ti­cip­ate fu­ture chal­lenges and in­nov­ate to meet them.With our latest pub­lic­a­tion, CMS Next, our ex­perts will reg­u­larly of­fer you in­sights in­to and fresh per­spect­ives on a range of is­sues that busi­nesses have to deal with – from ESG agen­das to re­struc­tur­ing after the pan­dem­ic or fa­cing the di­git­al trans­form­a­tion. We will also share with you more about the work that we are do­ing for our cli­ents, help­ing them in­nov­ate, grow and mit­ig­ate risk.To be able to provide you with the best sup­port, we im­merse ourselves in your world to un­der­stand your leg­al needs and chal­lenges. However, it is equally im­port­ant that you know who we are and how we can work with you. So, we in­vite you to meet our ex­perts and catch a glimpse of what is hap­pen­ing in­side CMS.En­joy read­ing this pub­lic­a­tion, which we will up­date reg­u­larly with new con­tent.CMS Ex­ec­ut­ive Team
31/05/2022
GDPR En­force­ment Track­er Re­port
What a year for GDPR en­force­ment: 2021/2022 saw vari­ous land­mark cases in­clud­ing: a new re­cord fine of EUR 743 mil­lion; the total amount of all fines since May 2018 ex­ceed­ing the EUR 1 bil­lion mark in sum­mer 2021; and the total num­ber of cases passing 1,000 in early 2022. Land­mark cases were widely re­por­ted, ob­vi­ously draw­ing a lot of pub­lic at­ten­tion and in­creas­ing over­all aware­ness for data pro­tec­tion law. However, there is a GDPR en­force­ment real­ity bey­ond re­cord fines and it may be worth tak­ing a closer look: fo­cus­sing solely on severe fines could lead to fear and even re­luct­ance or ig­nor­ance on com­pli­ance is­sues.We still be­lieve that facts are bet­ter than fear.Our con­tinu­ously up­dated list of pub­licly known GDPR fines in the GDPR En­force­ment Track­er is our 24/7 rem­edy against fear: in con­trast, the an­nu­al GDPR En­force­ment Track­er Re­port (“ET Re­port”) is our deep dive ap­proach and per­mits great­er in­sight in­to the world of GDPR fines.
18/05/2022
On-site power solu­tions
A guide for large en­ergy users Across Europe there is a clear and con­sist­ent trend for large scale com­mer­cial and in­dus­tri­al users of elec­tri­city ad­opt­ing on-site power solu­tions. This is the res­ult of a range of factors, in­clud­ing:re­new­able on-site gen­er­a­tion be­ing one of the most clear-cut ways to help “green” a site’s elec­tri­city sup­ply and help the com­mer­cial/in­dus­tri­al user achieve their cli­mate change tar­gets;on-site power solu­tions hav­ing the abil­ity to provide re­si­li­ence of elec­tri­city sup­ply dur­ing times of sys­tem out­age or con­straint;avoid­ance of the net­work and policy charges typ­ic­ally as­so­ci­ated with elec­tri­city taken from the grid; an­dthe com­mer­cial op­por­tun­it­ies from lever­aging flex­ible on-site power solu­tions to re­duce con­sump­tion from the grid and/or to ex­port elec­tri­city onto the grid.However, while such op­por­tun­it­ies mean that on-site power solu­tions are of­ten an at­tract­ive op­tion, on-site pro­jects will gen­er­ally come with a com­plex ar­ray of leg­al op­tions and con­sid­er­a­tions. These range from:the fun­da­ment­al point that such pro­jects in­her­ently in­volve par­ti­cip­a­tion in a typ­ic­ally heav­ily-reg­u­lated arena (and of­ten the back­drop of a set of reg­u­la­tions rap­idly evolving to keep pace with the sec­tor), toa range of pro­ject/agree­ment struc­tures and parties (without a “cook­ie cut­ter” ap­proach) in­volved in pro­ject own­er­ship, op­er­a­tion and elec­tri­city sale and pur­chase, with sig­ni­fic­ant co-de­pend­ence between such parties, toa gov­ern­ment policy con­text that (while at face value of­ten pro-green) is of­ten in­creas­ingly con­cerned about grid and policy charges be­ing avoided through these types of pro­ject and wishes to see all mar­ket par­ti­cipants pay­ing a per­ceived fair share of such costs. In this guide we provide an over­view of these chal­lenges and op­por­tun­it­ies in Europe, with a view to as­sist­ing you in re­view­ing, up­front, the key is­sues of­ten as­so­ci­ated with on-site power solu­tions of this nature. 
13/04/2022
Pil­lar Two - The OECD’s two-pil­lar solu­tion
Im­ple­ment­a­tion from a Ger­man per­spect­ive As of 19 Septem­ber 2022
24/03/2022
CMS European M&A Study 2022
The CMS Cor­por­ate/M&A Group is pleased to launch the four­teenth edi­tion of the European M&A Study
03/2022
Post-Mer­ger In­teg­ra­tion - CMS PMI ser­vices
CMS PMI ser­vices