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Freshfields Bruckhaus Deringer

Landmark $3.3bn South African PPP reaches financial close
Financial close was reached on 25 January 2007 on South Africa's $3.3bn Gautrain rapid rail link project in the Gauteng province. Commercial close was reached on 28 September 2006 with the Concession Agreement being signed between the Gauteng Provincial Government which procured the project and Bombela, a consortium whose shareholders include Bombardier, Bouygues Travaux Publics, Murray & Roberts and Strategic Partners Group.

Freshfields Bruckhaus Deringer, together with South African law firm Bowman Gilfillan, acted for the lead arrangers and underwriters, The Standard Bank of South Africa Limited and Rand Merchant Bank*, who co-arranged the commercial debt funding package for the project worth in excess of $400m (R3bn), consisting of senior, mezzanine and standby facilities. This is one of the largest project finance commercial bank packages arranged in the Southern African market.

The Gautrain project is the world's second largest rail PPP after the London Underground PPP (on which Freshfields also advised) and the largest greenfield rail project currently under construction globally. Construction of the 80km high-speed rail link has already commenced, with the first phase of the project due to be completed in less than 3½ years. The project, which is part of a wider plan intended to revitalise the South African rail network, will connect OR Tambo International airport, Sandton, downtown Johannesburg and Pretoria.

Bobby Stewart, the finance partner who led the Freshfields team commented: 'Reaching financial close on this landmark PPP marks an important step forward towards implementing an integrated public transport strategy in the region that will bring huge benefits in terms of improved infrastructure. We are pleased to be part of the project's success by continuing to provide our experience of advising on PPPs and rail projects around the world.'

The Freshfields finance team includes senior associates Marc Fèvre and Alistair Curzon.

01-31-2007

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Fineman, Krekstein & Harris, P.C.

APPLEBAUM ELECTED TO BUSINESS LAW SECTION EXECUTIVE COMMITTEE
Lee Applebaum, a partner at Fineman, Krekstein & Harris, was elected to the Executive Committee of the Philadelphia Bar Association’s Business Law Section. He is the immediate past Chair of the Section’s Business Litigation Committee.

Applebaum is a resident of Lower Merion, Pa.

Fineman Krekstein & Harris is a full-service law firm offering litigation, business, corporate and government relations services to its clients. It has offices in Center City Philadelphia. Haddonfield, New Jersey and Washington, D.C.

01-31-2007

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Ellis & Winters

US Supreme Court Review : Hamdan v. Rumsfeld
On the last day of the Supreme Court's 2006 term, the Court issued its much-anticipated decision in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the most recent chapter in its war-on-terror jurisprudence. Hamdan addressed the constitutional legitimacy of a military commission created by the president to try an alien detainee captured in Afghanistan during the ongoing conflict between the United States and al-Qaeda.

The Court declared the tribunal unconstitutional in a decision that limited the president's power to try Guantanamo Bay detainees to statutory boundaries. The military commission, the Court held, exceeded the president's authority, granted by Congress under the Uniform Code of Military Justice (UCMJ), to create such tribunals. The Court further held that the commission violated Article 3 of the Geneva Conventions, part of the "law of war" on which Congress conditioned its grant of authority. In its establishment of limits on presidential power, Hamdan marks a significant milestone in the evolving relationship among the three branches of the federal government in the war on terrorism.

The case concerned a habeas petition by Salim Ahmed Hamdan, a Yemeni national who served as Osama bin Laden's bodyguard and chauffeur. In 2001, militia forces in Taliban-governed Afghanistan captured Hamdan and turned him over to the United States military. He arrived at Guantanamo Bay prison in 2002, and President Bush later declared him eligible for trial by military commission. In 2004, Hamdan was charged with one count of conspiracy to commit "offenses triable by military commission." The military commission created to try Hamdan had started but not completed its work when the Court issued its decision. Under the commission's procedures, a presiding officer ruled on questions of law and evidentiary issues. The presiding officer also was empowered to "close" part of the proceeding to protect classified information, intelligence sources and methods, or other national security interests. Similarly, the accused and his civilian counsel could be denied access to certain "protected information" presented as evidence. The presiding officer could admit any evidence with probative value, including hearsay, evidence obtained by coercion, and unsworn witness statements.

The commission rules gave Hamdan a right to appointed military counsel, and he could hire civilian counsel at his own expense. He also was entitled to a copy of the charges against him, to a presumption of innocence, and to certain other rights traditionally afforded criminal defendants in military courts-martial. Significantly, however, Hamdan and his civilian counsel could be precluded from learning, at any time, what evidence was presented during any part of the proceeding that was "closed." His military counsel would be privy to the closed sessions, but the presiding officer could order the lawyer not to disclose to her client what had happened in closed session.

Appeals were confined to the Secretary of Defense, the president, and their military appointees. The Secretary of Defense also had authority to change the commission's rules "from time to time," and he exercised that after Hamdan's trial started.

Hamdan challenged the commission's legitimacy in federal district court. He claimed that the commission's procedures violated the basic tenets of military and international law, especially the right to learn the evidence used against him.

Hamdan also claimed that neither a relevant statute nor the law of war supported trial by military commission for the crime of conspiracy, the only charge against him.

The U.S. District Court for the District of Columbia granted Hamdan's habeas petition, stayed the commission's proceedings, and held that the tribunal violated both the UCMJ and the Third Geneva Convention because the commission could convict based on evidence that Hamdan could not see. A panel of the D.C. Circuit, in an opinion by now-Chief Justice Roberts, reversed on grounds that the commission did not run afoul of the UCMJ, and that the Geneva Conventions did not apply to Hamdan and were not judicially enforceable by individual defendants.

In a 5-3 decision written by Justice Stevens and joined by Justices Kennedy, Souter, Ginsburg, and Breyer, the Supreme Court (without the recused Chief Justice) held that the structure and procedures of Hamdan's commission exceeded the president's authority to try detainees by military tribunal. The Court concluded that by enacting the UCMJ, Congress had authorized the use of some form of military commission. Hamdan's commission, though, failed to satisfy the minimum procedural standards of both the UCMJ and Article 3 of the Geneva Conventions. A plurality, without Justice Kennedy, further concluded that the UCMJ did not authorize a military commission to try Hamdan on the specific charge against himconspiracy to commit war crimesand that Article 3 mandated that Hamdan be permitted to attend his trial and to know the evidence against him.

Before the Court could consider the merits of Hamdan's case, it had to clear two formidable preliminary challenges. Its determination to do so, based on creative treatment of precedent, suggests that a majority of the Court believed that the issues raised by Hamdan's appeal required prompt attention.

First, the Court denied the government's motion to dismiss based on the Detainee Treatment Act of 2005 ("DTA"). The DTA, enacted after the Court granted certiorari in this case, provided that "no court, justice or judge shall have jurisdiction to hear or consider" habeas petitions from aliens detained at Guantanamo Bay. Instead, the statute gave the D.C. Circuit exclusive appellate jurisdiction to review the results of military commissions. The DTA stated that certain of its provisions would "take effect" on the date of its enactment, but this statement did not expressly mention the section that stripped habeas jurisdiction.

The Court held that the DTA did not bar its consideration of Hamdan's case. Because the DTA listed sections to "take effect" immediately, and did not include the section on habeas jurisdiction on the list, the majority concluded that Congress did not intend to overcome the Court's traditional presumption against applying jurisdictional statutes retroactively to pending cases. This conclusion, based on "ordinary principles of statutory construction," enabled the Court to decide the caseand to avoid some tricky questions about Congress's power to strip the Court's habeas jurisdiction.

Second, the Court declined the government's invitation, based on long-established principles of comity between the civilian and military justice systems, to abstain from intervening in the commission's proceedings until they concluded. The Bush Administration argued, based on Schlesinger v. Councilman, 420 U.S. 738 (1975), in which the Court abstained from intervening in a pending court-martial, that the Court should await the commission's decision before it entertained a challenge to that decision. The Court held that the comity considerations of Councilmanthe importance of military discipline and respect for Congress's creation of an integrated system of military courtsdid not apply to Hamdan's petition.

On the merits, the Court held that the president did not have the authority to try Hamdan using the military commission in its current form. The president's authority to create such a commission, the majority observed, must be founded on the war powers wielded by the executive and legislative branches. Absent a direct claim to Article II authority, which the Bush Administration did not claim in this case, the Court considered potential statutory foundations for the president's authority to create Hamdan's commission. Following its decision in Ex parte Quirin, 317 U.S. 1 (1942), the Court held that Article 21 of the UCMJ authorized the president's use of military tribunals to try "offenders or offenses that by statute or by the law of war may be tried by such military commissions." The Court held that Hamdan's commission exceeded this statutory grant of authority and, therefore, amounted to an unconstitutional exercise of executive power.

The Court's analysis began with Quirin's recognized limits on the president's power to create military commissions. In that case, which involved the trial of seven German saboteurs captured in the United States during the Second World War, the Court held that Congress authorized the president to create such commissions only "with the express condition that the president and those under his command comply with the laws of war." Applying this standard, the Court held that Hamdan's commission failed to conform to the laws of war, a body of material that encompasses the American common law of war, the entire UCMJ, and the "rules and precepts of the law of nations," including the Geneva Conventions.

Because the commission's procedures ran afoul of the UCMJ and Article 3 of the Geneva Conventions, the commission exceeded the authority granted to the president under Article 21 of the UCMJ. The president, Justice Stevens wrote, "may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers." Before it described the ways that the commission violated the laws of war, the Court summarily rejected the Administration's argument that Congress had specifically authorized Hamdan's commission in statutes enacted since Sept. 11, 2001. The majority opinion made clear, despite a passionate dissent by Justice Thomas, that neither the DTA nor the Authorization for the Use of Military Force (AUMF), enacted after the Sept. 11 attacks, expanded the president's authority to convene military commissions beyond that established in the UCMJ.

Having found no additional statutory authorization for the commission, the Court next concluded that the commission's procedures ran afoul of the UCMJ. That Act authorizes the president to promulgate regulations to govern courtsmartial and military commissions. Under Article 36(b) of the UCMJ, however, such rules must be "uniform insofar as practicable," a phrase the majority construed to mean that "the rules applied to military commissions must be the same as those applied to courts-martial unless such uniformity proves impracticable." Any departure from this "uniformity principle," Justice Stevens wrote, must be tailored to the military exigency that requires it.

The Court held that the president had not determined that court-martial procedures would be impracticable to try Hamdan. His declaration that civilian criminal procedure would be impractical did not count, the majority concluded, because that announcement did not claim that the commission must deviate from court-martial rules.

Moreover, the Court held, nothing in the record suggested that it would be impracticable to use court-martial procedures to try Hamdan. The majority dismissed the Bush Administration's proffered reason to deviate from standard courtmartial procedure"the danger to the safety of the United States and the nature of international terrorism"as insufficient.

Having determined that the rules governing Hamdan's commission were "illegal," the Court further held that those procedures violated Article 3 of the Geneva Conventions (often referred to as Common Article 3 because it appears in all four Conventions). Because the Geneva Conventions form part of the law of war, the Court held, the president must adhere to them as a condition of his authority to create military commissions that Congress conferred in the UCMJ.

To reach this conclusion, the Court had to clear yet another procedural hurdle. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court rejected a challenge by a group of German nationals convicted by a military tribunal. Like Hamdan, the Germans argued that the tribunal's procedures, which deviated from court-martial rules, violated the Geneva Conventions. As it rejected this argument on the merits, the EisentragerCourt noted that the rights of alien enemies under the Conventions are protected by action of their governments, not by claims made by detainees themselves. Justice Stevens dismissed Eisentrager by declaring that the decision did "not control this case." The Court held that regardless of whether Hamdan could invoke the Conventions in court, the president remained bound by them as a condition of his authority, conveyed by the UCMJ, to create military commissions.

Freed from the Eisentrager decision, the Court concluded that Article 3, which applies to each party to a "conflict not of an international character" that occurs in a signatory country, binds the United States in its conflict with alQaeda. Justice Stevens observed that Afghanistan, where Hamdan was captured, is a signatory of the Conventions. The Court then interpreted the phrase "conflict not of an international character," to mean, literally, a conflict not between nationsand al-Qaeda, of course, is not a nation.

The protections conferred by Article 3 fall far short of the full spectrum of rights conferred on detainees in conflicts between signatories to the Geneva Conventions, but the Court held that Hamdan's commission ran afoul of even these bare safeguards. Principally, the Court held, the commission violated Article 3's requirement that detainees must be tried by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." A military commission, the majority concluded, qualifies as a "regularly constituted court" only if "some practical need explains deviations from court-martial practice." Echoing his previous analysis of the UCMJ's uniformity principle, Justice Stevens wrote that the president's failure to identify a practical need to deviate from courtmartial procedures rendered Hamdan's commission illegal under Article 3.

Justice Stevens's opinion, without support from Justice Kennedy, won plurality support for two additional positions. First, he concluded that the charge against Hamdan, conspiracy to commit war crimes, was not itself a war crime subject to trial by a military commission. Second, he interpreted Article 3 to require that an accused must be permitted to attend his trial and to be privy to the evidence against him.

In a lengthy concurrence, joined by Justices Souter, Ginsburg, and Breyer, Justice Kennedy explained that he declined to join the plurality on these points because he considered them unnecessary to dispose of the case. He expressed basic fairness concerns, however, about the commission's structure, organization, and procedures, especially their lack of insulation from command influence. Justice Kennedy also emphasized that "domestic statutes control this case"a point echoed in a one-page concurrence by Justice Breyer. Both concurrences noted that Congress could change the UCMJ to bring Hamdan's commission within the rule of law and the Constitution.

In a characteristically spirited dissent, joined by Justices Thomas and Alito, Justice Scalia castigated the Court's decision to exercise jurisdiction over Hamdan's habeas petition. Justice Scalia argued that the plain language of the DTA"no court, justice, or judge shall have jurisdiction" deprived the Court of jurisdiction over all habeas applications filed by Guantanamo Bay aliens, even if they were pending when the DTA was enacted.

The majority's attempt to avoid the DTA was unconvincing, he charged, because the Court could not overcome the rule, stated most clearly in Bruner v. United States, 343 U.S. 112 (1952), that jurisdiction-stripping statutes terminate jurisdiction in pending cases.

Justice Thomas's dissent, joined by Justice Scalia and joined in large part by Justice Alito, presented a view of vast presidential power in foreign affairs and national security, and it sharply criticized the majority for substituting its will for the president's in those areas. Following the traditional three-part scheme to evaluate executive authority first articulated by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Thomas viewed the military commission as an exercise of the president's powers as commander-in-chief during wartime, with the complete support of Congress conveyed by the AUMF. Under those conditions, Justice Thomas wrote, the president was entitled to "a heavy measure of deference" rather than the "second-guessing" that occupied the majority. Justice Thomas read parts of his dissent from the bench for the first time in his 15-year career on the Court, and he predicted that the Court's decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy." Justice Alito also dissented, joined by Justices Scalia and Thomas, on grounds that Hamdan's commission qualified as a "regularly constituted court" under Article 3 of the Geneva Conventions.

Other provisions of the Conventions expressly require uniformity between a country's court-martial tribunals and military commissions organized to try prisoners of war, Justice Alito observed, but Article 3 does not contain similar language. Justice Alito also argued that mere deviation between courts-martial and military commissions did not automatically render a military commission "illegal." The full separation-of-powers implications of Hamdan, and its impact on an array of questions surrounding the war on terrorism, remain to be seen. Some short-term results, however, are evident.

For Hamdan, the Court's decision to strike down the commission resulted, perversely, in his continued detention without a hearing. Nothing in the decision, Justice Stevens expressly noted, touched on whether Hamdan could be detained for the duration of hostilities. Hamdan remains at Guantanamo Bay while Congress and the president fashion an appropriate tribunal to try him.

For Congress, the decision (and the concurrences by Justices Kennedy and Breyer) essentially invited the institution to become a more robust player in the war on terrorism. At the very least, the Court gave Congress the opportunity to authorize, by new legislation or by amending the UCMJ, the president's use of military commissions. The Court gave little guidance, however, about the form of such legislation.

For the president, the decision shows that a majority of the Court does not share the Bush Administration's repeated assertions of sweeping executive power, at least in areas where Congress has legislated. Opponents of the Administration's use of wiretaps without a permit, despite provisions of the Foreign Intelligence Surveillance Act, will find encouragement in Hamdan.

The Court declined to decide several important issues presented, directly or indirectly, by Hamdan's petition. As a result, some basic features of the relationship among the three branches of government in the war on terrorism remain undefined. The Court again made no determination about whether the United States is "at war" after Sept. 11, 2001, and therefore whether claims of presidential power deserve more deference.

Importantly, the Court also did not confront directly the scope of the president's Article II power to convene a military commission, to detain individuals subject to trial under such a commission, or to conduct other aspects of the war on terrorism absent congressional authority.

Similarly, the precise contours of detainees' rights remain ambiguous after Hamdan. The fate of habeas cases pending in federal courts at the time of the DTA's enactment remains uncertain. It is unclear whether detainees can seek judicial enforcement of the Geneva Conventions to challenge future military commissions. The Court did not indicate what a "regularly constituted court" would look like under Common Article 3, or how, short of the full protections of courts-martial, a commission's procedures could withstand the Court's review. The Court also reached no decision on the types of formal charges that are subject to trial by military commission.

In light of these unanswered questions, Hamdan's uncertain fate, and a relatively measured majority opinion strong on statutory analysis but weak on sweeping constitutional pronouncements, some commentators have questioned the decision's significance. This view is mistaken. The basic lesson of Hamdan may have been obvious in other times, but in the present climate its importance is unmistakable.

The fundamental point appears in the majority opinion's final substantive paragraph. In reaching its decision, Justice Stevens wrote, the Court assumed that the charges against Hamdan were true, and that Hamdan was a dangerous man who intended to kill innocent civilians. But the real danger presented by Hamdan and those like him, however serious, did not permit the president to ignore constitutional checks to his authority. "[I]n undertaking to try Hamdan and subject him to criminal punishment," the Court concluded, "the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.

01-31-2007

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Dechert LLP

Dechert's Islamic Finance Practice Honored
Dechert LLP is delighted to announce that leading partner Chris Watson has been appointed to the board of the prestigious Communications Law Committee of the International Bar Association (IBA).

Composed of over 30,000 individual lawyers and over 195 Bar Associations and Law Societies, the IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. Through its various sections and committees, the IBA enables an interchange of information and views both among its members and with government and industry as to laws, practices and professional responsibilities relating to the practice of business law throughout the world. It aims to promote an exchange of information between legal associations worldwide, support the independence of the judiciary and the right of lawyers to practise their profession without interference, and support human rights for lawyers worldwide through its Human Rights Institute.

Grouped into two Divisions - the Legal Practice Division and the Public and Professional Interest Division - the Association covers all practice areas and professional interests. It provides members with access to leading experts and up-to-date information as well as top-level professional development and network-building opportunities through high quality publications and world-class conferences. The IBA's Bar Issues Commission provides its Member Organisations with substantive and social programmes at and between meetings and the IBA's Human Rights Institute works across the Association, helping to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

Chris Watson is a highly acclaimed competition and regulatory lawyer, recognised on an international level. The Chambers Guide to the UK Legal Profession 2007 ranked him amongst the UK's top three telecoms practitioners, describing him as a "heavy hitter" who is "a pleasure to deal with." In Chambers UK 2006 he was acknowledged as a "brilliant and tenacious practitioner," while the Legal 500 Guide to the UK Legal Profession 2005 styled him as a "regulatory guru". The Who's Who Legal Guide 2006 acknowledged Chris amongst the top fifteen regulatory communications experts in the world.

Recent activities include advising the World Bank on the reform of Lebanese telecommunications law, the Jordanian Telecommunications Regulatory Commission on the implementation of a new licensing regime, Macquarie Communications Infrastructure Group on its acquisition of NTL Broadcasting in the UK, and the Office of the Telecommunications Authority in Hong Kong in the drafting of its competition guidelines. He has also led in major competition proceedings at the European Commission and the UK Competition Commission.

Chris is also an avocat in France, bilingual in English and French, and speaks five other languages.

01-31-2007

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Cadwalader, Wickersham & Taft LLP

Cadwalader Launches Project Teach Law
Cadwalader, Wickersham & Taft LLP, one of the world’s leading law firms, announced today the completion of its first Project Teach Law workshop in collaboration with P.S. 11 in Chelsea.

Designed to introduce 4th and 5th graders to the world of transactional law, Cadwalader has created a fun and interactive approach to introduce elementary school children to the art of contracts and negotiating methods. “The goal is to inspire children’s interest and imaginations,” stated Karen Gelernt, a partner at the firm who conceived of the program and dministered the program at PS 11. “I wanted to create a curriculum in which children can relate their day to day experiences to the law.”

The Project Teach Law curriculum relies on attorneys of varying levels of seniority from Cadwalader who present a three part interactive workshop in 45-minute segments. The first session is a discussion between the instructor and the children to elicit their ideas and concepts about the type of work lawyers engage in – inside and outside of a courtroom. The econd session focuses on the art of negotiation, educating students about compromise, objectivity, persuasion and communication and listening skills. Part three relies on illustrated children’s books, including Amelia Bedelia, author Peggy Parish’s literal-minded housekeeper who trips through the minefield of the English language – to convey how individuals interpret information differently. The program culminates with the students drafting their own contracts, illustrating that lawyers must master both oral and written advocacy skills, whether arguing a case before a jury or documenting a deal, and reinforcing the practical applications of reading, writing and communication that are a critical part of elementary education.

Presented during the week of January 16 at PS 11 in the Chelsea area of Manhattan, the series was a resounding success. Cadwalader, Wickersham & Taft LLP 2 students and to provide them with a different perspective on the field of law,” said P.S. 11 principal Robert Bender. “We are very proud to have developed this unique program and to contribute to the ducation of New York City school students. It is further evidence of our long standing commitment to giving back to the communities in which we live and work and to educating our children, who are the future of our great city,” commented Robert O. Link, Jr., Cadwalader’s Chairman and Managing Partner.

01-31-2007

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The Law Firm Of Baker & Daniels LLP

Melina Kennedy Joining Baker & Daniels as Partner
Melina M. Kennedy, former Indianapolis deputy mayor, is joining Baker & Daniels LLP as a partner. She will concentrate her practice in public finance, focusing on economic development and environmental law, from the downtown Indianapolis office starting Feb. 5.

Kennedy brings more than a decade of public service and legal experience to one of Indiana's largest law firms. Last year, she was the Democratic candidate for Marion County prosecutor.

"Melina will be an outstanding addition to our firm," Brian K. Burke, chair and chief executive officer at Baker & Daniels, said. "She knows and has been very involved in the Indianapolis community, and she is a strong lawyer. We welcome her experience and energy."

Kennedy served in Indianapolis Mayor Bart Peterson's administration as director of economic development from 2001-04 and deputy mayor from 2004-05. As deputy mayor, she supervised the Departments of Public Works and Metropolitan Development, which combine for more than 900 employees and a budget of nearly $200 million.

With a focus on Indianapolis economic development, Kennedy led the effort to attract the Conrad Hotel to the city, helped keep Simon Property Group from leaving its downtown headquarters and found a company to fill the void left when United Airlines closed its maintenance hub at the airport. In addition, an expansion of the local life sciences industry was spurred by her initiation of a partnership with business and education leaders.

Kennedy's legal experience includes serving as an Indiana Supreme Court clerk from 1995-97 and as an attorney with the firm Johnson Smith LLP from 1997-2000. As a clerk, she researched opinions in civil and criminal cases for Justice Frank Sullivan. At Johnson Smith, Kennedy focused primarily on environmental law, both litigation and transactional work.

Kennedy earned three degrees from Indiana University. In 1995, she graduated cum laude from the IU School of Law in Bloomington. Kennedy also received a bachelor's degree in environmental studies and history and a master's degree in environmental science from the university.

After growing up in Chicago, Kennedy attended Indiana University and joined the women's track team where she met her husband, Bob Kennedy, a two-time Olympian in the 5,000-meter run. They have two children.

01-31-2007

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Baker Botts LLP

Bloomberg Law Reports: Lahiri, Rutkowski Discuss Proposed SEC Hedge Fund Rules
Baker Botts partners Yasho Lahiri (New York) and Joanne Rutkowski (Washington, D.C.) provide a thorough review of the proposed SEC hedge fund rules in the article "First, Do No Harm: The SEC Proposes New Hedge Fund Rules."

"Six months after the D.C. Circuit struck down its registration rules for hedge fund managers, and largely as promised by Securities and Exchange Commission (SEC) Chairman Christopher Cox in his Congressional testimony this past summer, the Commission voted to propose a new round of rulemaking on December 13, 2006," Lahiri and Rutkowski write in the article's opening.

"The initial proposals from this round, if adopted, may well prove relatively benign. The first proposed rule would broadly proscribe fraud against investors and prospective investors in all registered funds and substantially all private funds by investment advisers, whether registered as such with the SEC or not. The second set of proposed rules would raise the qualification bar for individuals seeking to invest in certain hedge funds and other pooled investment vehicles, other than 'venture capital funds.

01-31-2007

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