The oil and gas industry in the United States is highly dependent upon an intricate set of agreements that allow oil and gas to be gathered from privately owned land. Historically, the dedication language in oil and gas gathering agreements—through which the rights to the oil or gas in specified land are dedicated—was viewed as being a covenant that ran with the land. That view was put to the test during the wave of oil and gas exploration company bankruptcies that began in 2014. A shockwave was sent through the oil and gas industry in 2016, when the United States Bankruptcy Court for the Southern District of New York in the In re Sabine Oil & Gas Corp. bankruptcy case held that, under Texas law, the dedication language in the applicable midstream contract did not create a covenant running with the land, but instead amounted only to a right involving personal property that could be separately assumed or rejected in a bankruptcy case.

This newsletter provides a snapshot of the principal U.S. and selected international governance and securities law developments during the third quarter of 2020 that may be of interest to Latin American corporations and financial institutions.

On September 24, 2020 the European Commission (EC) launched proposals for a new EU-wide regime to regulate crypto-assets and distributed ledger technology (DLT) in the financial sector through a Digital Finance Package. Key issues relevant to companies and stakeholders in digital finance are set out below.

For many businesses, Asia provides a wealth of opportunities, but there are also risks in doing business in a diverse region with legal systems and practices that may be unfamiliar to those more used to operating in Europe and the Americas.

On November 6, 2020 the U.K. Supreme Court handed down a judgment relating to the Servier U.K. competition damages litigation, in which it made key observations on when a judicial decision of the EU courts is binding in other proceedings.

On 11 November 2020, the U.K. Government announced long-awaited and extensive reforms to the U.K. foreign investment regime.

On October 6, 2020, the Executive Board of the International Chamber of Commerce (ICC) approved the revised ICC Rules of Arbitration (the “2021 ICC Rules”), which will replace the ICC Rules issued in March 2017. The 2021 ICC Rules will enter into force on January 1, 2021 and will define and regulate the management of cases submitted to the ICC International Court of Arbitration (the “ICC Court”) from that date. The 2017 ICC Rules will continue to apply for all cases registered with the ICC Court before January 1, 2021.

In a world in which businesses face an ever-increasing compliance burden, the costs of failing to identify and manage business crime risks effectively have never been greater.

Following our previously published Client Alert titled, “Colombia Relaunches Bid Process for Pacific LNG Import Terminal and Associated Transport Infrastructure,” (“Previous Client Alert”) on October 29, 2020, the Mining and Energy Planning Agency (UPME) released the final version of the tender documents for the USD 700 million LNG regasification facility and related pipeline project, commonly known as Pacific LNG (“the Project”). The revised and final version of the tender documents includes a new timeline for the development of the Project, but did not provide greater clarity on some of the more sensitive issues related to this strategic Project for Colombia.

On October 7, 2020, the U.S. Securities and Exchange Commission (SEC) proposed an order (the “Proposed Order”) that would allow natural persons to engage in limited activities assisting issuers in raising capital without registering as a broker-dealer. Currently, a person who identifies and solicits potential investors and receives transaction-based compensation in connection with such activity may be viewed as engaging in broker-dealer activity, and accordingly, would need to register as a broker-dealer with the SEC.