Future facing law

China’s Belt and Road Ini­ti­at­ive (BRI) is where some of the key is­sues of our time in­ter­sect, in­clud­ing glob­al­isa­tion, sus­tain­ab­il­ity, the mod­ern­isa­tion of in­fra­struc­ture, new tech­no­logy and health­care. But it also marks the con­ver­gence of some ser­i­ous con­cerns, such as en­vir­on­ment­al pro­tec­tion, in­ter­na­tion­al debt, the Cov­id-19 pan­dem­ic and, in­creas­ingly, geo­pol­it­ic­al ten­sions between the US and China.Our new re­port shows that sen­ti­ment to­wards BRI in Lat­in Amer­ica re­mains re­l­at­ively pos­it­ive, des­pite such head­winds. From the in­volve­ment of Chinese busi­nesses in Panama Canal ports to Chinese in­vest­ments in lith­i­um min­ing and re­new­able en­ergy, trans-Pa­cific con­nec­tions between Lat­in Amer­ic­an eco­nom­ies and China’s Asi­an power­house con­tin­ue to grow.China’s am­bi­tions to ad­vance Belt and Road co­oper­a­tion high­light the po­ten­tial for BRI to help na­tions in Lat­in Amer­ica bridge the re­gion’s massive in­fra­struc­ture gap and re­cov­er from the ter­rible dam­age of the pan­dem­ic, as well as of­fer­ing many new op­por­tun­it­ies for re­gion­al busi­nesses and in­vestors. 

China’s Belt and Road Ini­ti­at­ive (BRI) con­tin­ues to evolve, of­fer­ing new op­por­tun­it­ies for na­tions, com­munit­ies and busi­nessesIt is now ex­pli­citly aligned with many areas that are in­creas­ing pri­or­it­ies for in­ter­na­tion­al busi­nesses, such as ESG prin­ciples and sus­tain­ab­il­ity. But in 2020 it faces un­pre­ced­en­ted head­winds, in­clud­ing the glob­al pan­dem­ic and trade dis­putes.As a lead­er in many Belt and Road sec­tors, CMS has polled and in­ter­viewed over 500 BRI par­ti­cipants around the world, about their cur­rent think­ing on BRI and the pro­spects they see for it. Our find­ings from China, Asia Pa­cific, Cent­ral and East­ern Europe, Middle East, North Africa re­gion and Lat­in Amer­ica are avail­able now.Re­port on Africa will be pub­lished in the com­ing months.me­di­um­me­di­um­me­di­um­me­di­um­me­di­um­me­di­um

COV­ID-19 pan­dem­ic leads to change in in­vestor in­terest in the in­di­vidu­al as­set classes – lo­gist­ics and res­id­en­tial prop­er­ties es­pe­cially pop­ularIn­creased de­sire for se­cur­ity on part of sellers: re­cord...

Out of the tur­bu­lence of 2020, one sec­tor is emer­ging re­ju­ven­ated – tele­coms. The new mega deals, es­pe­cially when it comes to di­git­al in­fra­struc­ture, at­test to it. This is the ac­cel­er­a­tion of a trend, rather than a new phe­nomen­on. If any­thing, lock­downs im­posed to handle the COV­ID-19 pan­dem­ic have only served to ac­cel­er­ate de­mand.

It is no longer news to re­port that the world of work is likely to be changed forever as a res­ult of the pan­dem­ic. From the ini­tial shock and ad­just­ment to a new work­ing mode, at­ten­tion is now turn­ing to the ex­tent and nature of that change, and the con­sequences for work­place re­lated policy and leg­al frame­works of a per­man­ent change to work­ing con­di­tions and ex­pect­a­tions.

The COV­ID-19 pan­dem­ic has left its mark on the European in­vest­ment mar­ket. In­vest­ment volumes were around 23% lower than in the pre­vi­ous year, 2019, with its re­cord per­form­ance. Buy­ers fo­cused primar­ily on prop­er­ties with stable in­come and those only min­im­ally af­fected by the pan­dem­ic. The num­ber of trans­ac­tions in which steps were taken to en­sure the buy­er met its fin­an­cial ob­lig­a­tions was at a re­cord high. The trend to­wards more buy­er-friendly ar­range­ments con­tin­ued. Those are the key find­ings of the CMS European Real Es­tate Deal Point Study 2021.For the latest edi­tion of this sur­vey of the European real es­tate trans­ac­tion mar­ket, in­ter­na­tion­al com­mer­cial law firm CMS sys­tem­at­ic­ally as­sessed and eval­u­ated more than 1,900 real es­tate agree­ments on which it ad­vised in coun­tries across Europe from the be­gin­ning of 2010 to the end of 2020.The key find­ings:In­vestors fo­cus on stable in­comeThe COV­ID-19 pan­dem­ic led to a change in in­vestor in­terest in the in­di­vidu­al as­set classes. Buy­ers fo­cused primar­ily on prop­er­ties with stable in­come and those that were only min­im­ally af­fected by the pan­dem­ic. Lo­gist­ics and res­id­en­tial prop­er­ties were es­pe­cially pop­u­lar.Of­fice real es­tate re­mained the strongest as­set class in Europe, but its share of the mar­ket fell to a re­cord low of 30%. De­mand for re­tail prop­er­ties re­mained at a con­sist­ently low level (15%). Lo­gist­ics real es­tate per­formed par­tic­u­larly well, post­ing a rise to 19% , a new re­cord. The pro­por­tion of in­vest­ment go­ing in­to spe­cial­ist prop­er­ties such as ho­tels fell sig­ni­fic­antly (14%). Res­id­en­tial real es­tate proved pop­u­lar with in­vestors, with its share rising to 22%.Sellers tak­ing steps to en­sure that buy­ers meet their fin­an­cial ob­lig­a­tionsDur­ing the pan­dem­ic, an in­creased need for se­cur­ity on the part of sellers was ap­par­ent. The pro­por­tion of trans­ac­tions in which steps were taken to en­sure the buy­er met its fin­an­cial ob­lig­a­tions rose to a re­cord high of 64%. In pre­vi­ous years, se­cur­ity was agreed in less than 50% of all trans­ac­tions.This high level is due to the in­creased de­sire for se­cur­ity on the part of sellers as a res­ult of the pan­dem­ic; they were of­ten un­cer­tain about the buy­er’s solvency go­ing for­ward. As a means of provid­ing se­cur­ity, both bank guar­an­tees (17%) and a not­ary’s es­crow ac­count (10%) be­came less pop­u­lar. In many cases, in con­trast, the buy­er made an ad­vance pay­ment (29%). In 9% of trans­ac­tions, use was made of sub­mis­sion to im­me­di­ate en­force­ment.Risk al­loc­a­tion in con­tracts: buy­ers catch­ing up in a seller-friendly mar­ket­Buy­ers were able to strengthen their po­s­i­tion fur­ther in 2020 with re­gard to risk al­loc­a­tion in con­tracts. In a mar­ket en­vir­on­ment that re­mained very seller-friendly, they suc­ceeded in ob­tain­ing fa­vour­able con­tract terms more of­ten than in pre­vi­ous years.As part of the war­ranty, guar­an­tees were again agreed more of­ten in fa­vour of buy­ers. The per­cent­age of agree­ments with in­di­vidu­al li­ab­il­ity pro­vi­sions in­creased to 75%. It was com­mon prac­tice to provide for both sub­ject­ive and ob­ject­ive guar­an­tees.The pro­por­tion of deals with seller-friendly lim­its on li­ab­il­ity, such as de min­imis and bas­ket clauses and caps, dropped slightly be­low the pri­or-year level in 2020. The up­ward trend seen over many years in agree­ments aimed at lim­it­ing li­ab­il­ity has thus been curbed some­what, while buy­ers were able to ne­go­ti­ate more fa­vour­able con­tract terms more of­ten than be­fore.Buy­ers also pre­pared ground with re­gard to the con­trac­tu­al pro­vi­sions on lim­it­a­tion peri­ods. An in­creas­ing num­ber of lim­it­a­tion peri­ods from 18 to 24 months were agreed in 2020, while there was a slight fall in the pro­por­tion of short lim­it­a­tion peri­ods of up to 18 months.Na­tion­al in­vestors more prom­in­entIn­t­er­na­tion­al in­vestors had a tough time in 2020. While in­ter­na­tion­al sellers have been re­spons­ible for the ma­jor­ity of deals since 2017, their per­cent­age dropped back down to 43% in 2020, with na­tion­al in­vestors be­com­ing more act­ive. Na­tion­al in­vestors ac­coun­ted for 48% of deals in 2018, while in 2020, 57% of real es­tate in­vest­ments were made by na­tion­al in­vestors.

CMS Funds Group Back to Ba­sics brief­ings in­tend to sup­ple­ment and provide more in­sights re­gard­ing its Pop­u­lar In­vest­ment Fund Vehicles guide. New brief­ings will be avail­able each month, cov­er­ing a spe­cif­ic jur­is­dic­tion, and provid­ing in-depth ex­plan­a­tions on a par­tic­u­lar vehicle.

Against the back­drop of an in­cred­ibly chal­len­ging year for the glob­al mari­time in­dustry this pub­lic­a­tion from our CMS Ship­ping team ex­am­ines a num­ber of key as­pects of the ship­ping in­dustry pushed in­to...

The European Com­mis­sion has is­sued the draft pro­pos­al for the Reg­u­la­tion on a Single Mar­ket for Di­git­al Ser­vices (Di­git­al Ser­vices Act, the “DSA”), which cre­ates a new leg­al frame­work for di­git­al ser­vices, amends the e-Com­merce Dir­ect­ive, and pre­pares the EU law for new and in­nov­at­ive in­form­a­tion so­ci­ety di­git­al ser­vices.The DSA sets out uni­form, har­mon­ised rules for in­ter­me­di­ary ser­vice pro­viders (the “ISPs”) to foster in­nov­a­tion, growth and com­pet­it­ive­ness, to bet­ter pro­tect con­sumers and their fun­da­ment­al rights on­line, to en­sure a safe, pre­dict­able and trus­ted on­line en­vir­on­ment, to of­fer more choices for users and less ex­pos­ure to il­leg­al con­tent, to provide ac­cess to busi­ness users to EU-wide mar­kets through plat­forms, and to fa­cil­it­ate the scal­ing up of smal­ler plat­forms, SMEs and start-ups. The new draft rules es­tab­lish:a frame­work for the con­di­tion­al ex­emp­tion from li­ab­il­ity of ISPs;rules on spe­cif­ic due di­li­gence and oth­er ob­lig­a­tions tailored to dif­fer­ent cat­egor­ies of ISPs;law en­force­ment rules and a new re­gime for co­oper­a­tion of and co­ordin­a­tion between the com­pet­ent au­thor­it­ies. 1. Which di­git­al ser­vice pro­viders are covered? The DSA cov­ers those ISPs, wheth­er es­tab­lished in or out­side the EU, that provide in­ter­me­di­ary ser­vices such as con­duit ser­vices, cach­ing ser­vices, host­ing ser­vices to re­cip­i­ents (users, busi­ness users, con­sumers, in­di­vidu­als and leg­al en­tit­ies us­ing the in­ter­me­di­ary ser­vices) hav­ing an es­tab­lish­ment or res­id­ence in the EU.The defin­i­tions of con­duit, cach­ing and host­ing ser­vice pro­viders re­mained the same as in the e-Com­merce Dir­ect­ive; the DSA only re­peats those e-Com­merce Dir­ect­ive defin­i­tions word-for-word.The draft reg­u­la­tion con­tains spe­cial ob­lig­a­tions for on­line plat­form host­ing pro­viders and very large plat­forms as a spe­cial cat­egory of on­line plat­forms, and defines those host­ing ser­vices as fol­lows:On­line plat­forms are pro­viders of host­ing ser­vices which store and make avail­able in­form­a­tion to the pub­lic at the re­quest of a re­cip­i­ent of the ser­vice, e.g. on­line mar­ket­places, app stores, col­lab­or­at­ive eco­nomy plat­forms and so­cial me­dia plat­forms. However, if stor­ing or mak­ing in­form­a­tion avail­able to the pub­lic is a minor and an­cil­lary fea­ture of an­oth­er ser­vice, and can­not be used without that oth­er ser­vice for ob­ject­ive and tech­nic­al reas­ons, the ser­vice does not qual­i­fy as an on­line plat­form. This is the situ­ation with the com­ment sec­tion in an on­line news­pa­per or email and private mes­saging ser­vices.Very large on­line plat­forms are on­line plat­forms which provide their ser­vices to a num­ber of av­er­age monthly act­ive re­cip­i­ents of the ser­vice in the EU equal to or high­er than 45 mil­lion. The list of very large on­line plat­forms is pub­lished in the Of­fi­cial Journ­al of the EU. 2. No change in the li­ab­il­ity of ISPs for in­form­a­tion stored or trans­mit­ted in their ser­vices The DSA does not change the li­ab­il­ity re­gime of ISPs for il­leg­al con­tent. It only re­peats the li­ab­il­ity pro­vi­sions of the e-Com­merce Dir­ect­ive word-for-word and also main­tains the e-com­merce rule that ISPs do not have a gen­er­al ob­lig­a­tion to mon­it­or the in­form­a­tion they trans­mit or store, or to act­ively seek facts or cir­cum­stances in­dic­at­ing il­leg­al activ­ity.As an ad­di­tion, the draft reg­u­la­tion stip­u­lates that ISPs can still refer to the ex­emp­tion of li­ab­il­ity even if they con­duct vol­un­tary self-ini­ti­ated in­vest­ig­a­tions or oth­er activ­it­ies aimed at de­tect­ing, identi­fy­ing and re­mov­ing, or dis­abling ac­cess to, il­leg­al con­tent, or take the ne­ces­sary meas­ures to com­ply with the re­quire­ments of EU law. 3. What are the new ob­lig­a­tions? The DSA stip­u­lates new ob­lig­a­tions on ISPs at dif­fer­ent levels. Com­mon ob­lig­a­tions ap­ply to all kind of ISPs, in­clud­ing on­line plat­forms and very large on­line plat­forms. Host­ing pro­viders have ad­di­tion­al ob­lig­a­tions, and the DSA con­tains spe­cial ob­lig­a­tions for on­line plat­forms com­pared to oth­er host­ing ser­vices. In ad­di­tion, very large on­line plat­forms have fur­ther ob­lig­a­tions to man­age sys­tem­ic risks. 3.1 Com­mon ob­lig­a­tions ap­plic­able to all ISPs Provid­ing in­form­a­tion to au­thor­it­ies based on or­ders: if an ISP re­ceives an or­der from an au­thor­ity to act against il­leg­al con­tent, the ISP must in­form the au­thor­ity without un­due delay about the ac­tions it takes and the time of those ac­tions. Fur­ther­more, if the ISP re­ceives an or­der to provide in­form­a­tion about a spe­cif­ic in­di­vidu­al re­cip­i­ent of a ser­vice, the ISP must con­firm the re­ceipt of the or­der to the au­thor­ity without un­due delay and must provide the re­ques­ted in­form­a­tion with cer­tain lim­it­a­tions.Des­ig­nat­ing points of con­tact and leg­al rep­res­ent­at­ives: ISPs must es­tab­lish a single point of con­tact for dir­ect elec­tron­ic com­mu­nic­a­tion with the au­thor­it­ies and pub­lish it. Fur­ther­more, ISPs not es­tab­lished in the EU but of­fer­ing ser­vices in the EU must des­ig­nate in writ­ing a leg­al rep­res­ent­at­ive (to­geth­er with its name and con­tact de­tails) in one of the EU coun­tries where the ISP of­fers ser­vices for re­ceipt, ex­e­cu­tion and en­force­ment of au­thor­ity de­cisions and for co­oper­a­tion with the au­thor­it­ies. This des­ig­nated leg­al rep­res­ent­at­ive can be held li­able for non-com­pli­ance with ob­lig­a­tions un­der the DSA.In­dic­at­ing re­stric­tions in terms: all re­stric­tions (in­clud­ing con­tent mod­er­a­tion, al­gorithmic de­cision-mak­ing, and hu­man re­view rules) re­lated to the use of ISPs’ ser­vices re­gard­ing in­form­a­tion provided by the re­cip­i­ents must be in­cluded in the terms and con­di­tions of the ser­vices.Pub­lish­ing an­nu­al trans­par­ency re­ports: ISPs must pub­lish de­tailed an­nu­al re­ports of any con­tent mod­er­a­tion they en­gaged in dur­ing the rel­ev­ant peri­od. These re­ports must in­clude, among oth­ers, cer­tain in­form­a­tion on the or­ders from au­thor­it­ies, no­tices on il­leg­al con­tent and com­plaints re­ceived by the ISP, as well as on con­tent mod­er­a­tion by the ISP. 3.2 Ad­di­tion­al ob­lig­a­tions on all host­ing pro­viders Man­aging no­tices on il­leg­al con­tents: the host­ing pro­vider must in­tro­duce eas­ily ac­cess­ible, user-friendly elec­tron­ic pro­cesses for man­aging no­tices on il­leg­al con­tents. The DSA lists the man­dat­ory ele­ments of such a no­tice. The host­ing pro­vider must con­firm the re­ceipt of such no­tice in a re­spond­ing email and no­ti­fy the claimant of its de­cision without un­due delay.Provid­ing reas­on­ing for de­cisions: if the host­ing pro­vider de­cides to re­move or make un­avail­able any il­leg­al con­tent provided by the re­cip­i­ent, it must in­form the re­cip­i­ent of the de­cision and give clear reas­on­ing for that de­cision. This reas­on­ing must con­tain all man­dat­ory ele­ments lis­ted in the DSA. The de­cision must be pub­lished in an an­onymised way in the Com­mis­sion’s pub­lic data­base. 3.4 Spe­cial ob­lig­a­tions of on­line plat­forms The pro­vi­sions ap­plic­able to on­line plat­forms can­not be ap­plied to SME on­line plat­forms. The fol­low­ing ad­di­tion­al ob­lig­a­tions ap­ply to on­line plat­forms, in­clud­ing very large on­line plat­forms:Com­plaint man­age­ment sys­tem: on­line plat­forms must main­tain an in­tern­al, user-friendly, eas­ily ac­cess­ible elec­tron­ic com­plaint man­age­ment sys­tem and must grant ac­cess to it to the re­cip­i­ents. The re­cip­i­ents can sub­mit com­plaints elec­tron­ic­ally here against the on­line plat­form’s de­cisions on their il­leg­al con­tent.Out of court dis­pute set­tle­ment: re­cip­i­ents af­fected by an on­line plat­form’s de­cision on il­leg­al con­tent are en­titled to turn to an out-of-court body cer­ti­fied by the di­git­al ser­vice co­ordin­at­or. The on­line plat­forms are bound by the de­cision of this body. The DSA con­tains the de­tailed rules for the pro­ceed­ings and the de­cisions of this cer­ti­fied body.Pri­or­ity for trus­ted flag­gers: on­line plat­forms must pro­cess the no­tices on il­leg­al con­tent sub­mit­ted by trus­ted flag­gers with pri­or­ity. The di­git­al ser­vice co­ordin­at­ors are en­titled to qual­i­fy an en­tity as a trus­ted flag­ger if all con­di­tions lis­ted in the DSA are met. The list of trus­ted flag­gers is pub­lished in the Com­mis­sion’s pub­licly avail­able data­base.Meas­ures against ab­us­ive no­tices and counter-no­tices: on­line plat­forms must sus­pend their ser­vices to re­cip­i­ents that fre­quently provide mani­festly il­leg­al con­tent. Fur­ther­more, on­line plat­forms must also sus­pend the pro­cessing of no­tices and com­plaints sub­mit­ted by per­sons that fre­quently sub­mit no­tices or com­plaints that are mani­festly un­foun­ded. The DSA con­tains de­tailed rules for the cir­cum­stances to be as­sessed in the case of such sus­pen­sion.Re­port­ing sus­pi­cions of crim­in­al of­fences: on­line plat­forms must promptly in­form the mem­ber states’ com­pet­ent law en­force­ment au­thor­it­ies, or in cer­tain cases Euro­pol, if they be­come aware of any sus­pi­cion of a crim­in­al of­fence in­volving a threat to the life or safety of per­sons has taken place, is tak­ing place or is likely to take place.Know Your Busi­ness Cus­tom­er: on­line plat­forms must identi­fy their traders pro­mot­ing mes­sages or of­fer­ing products or ser­vices to EU con­sumers, and must ob­tain in­form­a­tion about them lis­ted in the DSA, among oth­ers the name, con­tact de­tails, re­gis­tra­tion num­ber, copy of the ID card of the trader. More de­tailed trans­par­ency re­ports: on­line plat­forms must in­clude ad­di­tion­al in­form­a­tion in their an­nu­al trans­par­ency re­port, such as in­form­a­tion about out-of-court dis­putes, sus­pen­sions, and auto­mated con­tent mod­er­a­tion. Fur­ther­more, on­line plat­forms must pub­lish in­form­a­tion at least once every six months on the av­er­age monthly act­ive re­cip­i­ents of the ser­vice in each EU coun­try.User-fa­cing trans­par­ency of on­line ad­vert­ising: on­line plat­forms must en­sure that ad­vert­ise­ments dis­played in their ser­vices con­tain in­form­a­tion that this is an ad­vert­ise­ment, who is the ad­vert­iser, and the tar­get audi­ence of the ad­vert­ise­ments. 3.5 Very large on­line plat­forms’ spe­cial ob­lig­a­tions for man­aging sys­tem­ic risks The draft reg­u­la­tion con­tains the fol­low­ing spe­cial ob­lig­a­tions for very large on­line plat­forms for man­aging sys­tem­ic risks:Risk man­age­ment ob­lig­a­tions: very large on­line plat­forms must con­duct an­nu­al risk as­sess­ments on the sig­ni­fic­ant sys­tem­ic risks stem­ming from the func­tion­ing and use of their ser­vices in the EU. Fur­ther­more, based on these risk as­sess­ments, they must put in place reas­on­able, pro­por­tion­ate and ef­fect­ive risk mit­ig­a­tion meas­ures for the sys­tem­ic risks they identi­fy. The DSA con­tains a de­tailed list of those risk-mit­ig­a­tion meas­ures.Ex­tern­al risk audit­ing and pub­lic ac­count­ab­il­ity: very large on­line plat­forms must con­duct an­nu­al audits on com­pli­ance with the DSA and the code of con­duct via an in­de­pend­ent, ex­tern­al pro­fes­sion­al aud­it­or. The aud­it­or must is­sue a writ­ten audit re­port in­clud­ing the man­dat­ory ele­ments lis­ted in the DSA in writ­ing.Trans­par­ency of re­com­mend­er sys­tems: if a very large on­line plat­form uses a re­com­mend­er sys­tem, it must in­clude the main para­met­ers of and cer­tain in­form­a­tion about this sys­tem in its terms and con­di­tions, and must en­sure op­tions for users not in­volving pro­fil­ing.More trans­par­ency in on­line ad­vert­ising: very large on­line plat­forms must make pub­licly avail­able, through APIs, an an­onymised re­pos­it­ory about the on­line ad­vert­ise­ments dis­played on the plat­form. The re­pos­it­ory must con­tain the con­tent of the ad­vert­ise­ments, each ad­vert­iser’s name, the peri­od when each ad­vert­ise­ment was dis­played, and cer­tain in­form­a­tion about the tar­get audi­ence of each ad­vert­ise­ment.Data shar­ing with au­thor­it­ies and re­search­ers: very large on­line plat­forms must provide ac­cess to the data to the di­git­al ser­vice co­ordin­at­or or the Com­mis­sion for mon­it­or­ing and as­sess­ing com­pli­ance with the DSA, and must grant ac­cess to the data to vet­ted aca­dem­ic, in­de­pend­ent re­search­ers for con­duct­ing re­search that con­trib­utes to the iden­ti­fic­a­tion and un­der­stand­ing of sys­tem­ic risks. Data ac­cess must be en­sured via APIs or on­line data­bases.Com­pli­ance of­ficer: very large on­line plat­forms must ap­point at least one pro­fes­sion­al com­pli­ance of­ficer to mon­it­or com­pli­ance with the DSA. The com­pli­ance of­ficer’s name and con­tact de­tails must be provided to the di­git­al ser­vice co­ordin­at­or and the Com­mis­sion.Ad­di­tion­al trans­par­ency re­port­ing du­ties: very large on­line plat­forms must pub­lish trans­par­ency re­ports every six months and must pub­lish and sub­mit ad­di­tion­al re­ports lis­ted in the DSA to the di­git­al ser­vice co­ordin­at­or and the Com­mis­sion. 4. Com­pet­ent au­thor­it­ies, for­um shop­ping All EU mem­ber states must des­ig­nate a com­pet­ent na­tion­al en­force­ment au­thor­ity for the DSA and the same or an­oth­er au­thor­ity as the di­git­al ser­vice co­ordin­at­or. Each di­git­al ser­vice co­ordin­at­or has the power of in­vest­ig­a­tion and is en­titled to de­mand in­form­a­tion from the ISPs and any oth­er per­son on sus­pec­ted in­fringe­ments of the DSA, to carry out on-site in­spec­tions, to ask staff of the ISPs to give ex­plan­a­tions, to or­der the ces­sa­tion of an in­fringe­ment, to im­pose fines, and to ad­opt in­ter­im meas­ures.The EU mem­ber state in which the main es­tab­lish­ment of the ISP is loc­ated will have jur­is­dic­tion over the ISP. If an ISP does not have an es­tab­lish­ment in the EU but of­fers ser­vices in the EU, it will be deemed to be un­der the jur­is­dic­tion of the EU mem­ber state where its leg­al rep­res­ent­at­ive resides or is es­tab­lished, which en­ables for­eign ISPs to choose the EU jur­is­dic­tion by des­ig­nat­ing its leg­al rep­res­ent­at­ive. If the ISP fails to ap­point a leg­al rep­res­ent­at­ive, all EU mem­ber states will have jur­is­dic­tion over that ISP.The DSA es­tab­lishes the European Board for Di­git­al Ser­vices, an in­de­pend­ent ad­vis­ory group of di­git­al ser­vice co­ordin­at­ors on the su­per­vi­sion of ISPs with ad­vis­ory tasks for di­git­al ser­vice co­ordin­at­ors and the Com­mis­sion.The DSA in­tro­duces en­hanced su­per­vi­sion for very large plat­forms. In this case, the di­git­al ser­vices co­ordin­at­or will con­sider all opin­ions and re­com­mend­a­tions of the European Board for Di­git­al Ser­vices and the Com­mis­sion. The Com­mis­sion and the Board is en­titled to re­com­mend that the di­git­al ser­vice co­ordin­at­or in­vest­ig­ates the in­fringing activ­ity. The Com­mis­sion is en­titled to ini­ti­ate its own pro­ceed­ings against a very large on­line plat­form in cases defined in the DSA. The DSA con­tains spe­cial rules for pro­ceed­ings ini­ti­ated by the Com­mis­sion against a very large plat­form, with spe­cial pro­ced­ur­al rights and ob­lig­a­tions. 5. Sanc­tions The DSA does not con­tain an ex­haust­ive list of sanc­tions for an in­fringe­ment of the reg­u­la­tion; the Mem­ber States will set out the rules on sanc­tions. The draft reg­u­la­tion defines the fol­low­ing max­im­um amount of pen­al­ties:6% of the an­nu­al in­come or turnover of the ISP for in­fringing the ob­lig­a­tions in the DSA;1% of the an­nu­al in­come or turnover of the ISP for sup­ply­ing in­cor­rect, in­com­plete or mis­lead­ing in­form­a­tion, fail­ing to reply or rec­ti­fy in­cor­rect, in­com­plete or mis­lead­ing in­form­a­tion, and fail­ing to sub­mit to an on-site in­spec­tion;5% of the av­er­age daily turnover in the pre­ced­ing fin­an­cial year per day, cal­cu­lated from the date ap­poin­ted by the de­cision in the case of daily, peri­od­ic pen­alty pay­ments. 6. Next steps The European Par­lia­ment and Mem­ber States will dis­cuss the Com­mis­sion’s pro­pos­al ac­cord­ing to the or­din­ary le­gis­lat­ive pro­ced­ure, which will take at least 18 months. Once ad­op­ted, the DSA will dir­ectly ap­ply across the EU and ISPs will have three months to pre­pare for the new leg­al re­gime.We will con­tinu­ously mon­it­or the status of the le­gis­lat­ive pro­cess and keep you up­dated on any changes to the draft text of the DSA.

In­ter­na­tion­al law firm CMS is pleased to an­nounce the pro­mo­tion of 52 new part­ners glob­ally in 2021, span­ning 22 cit­ies across Europe, Lat­in Amer­ica and Africa.This is CMS’s largest-ever round of glob­al...