Simont Braun strengthens Financial Services and FinTech capabilities with top hires

Simont Braun boosts the capabilities of its Fintech and Financial Services practices by welcoming Partner Joan Carette and Senior Associate Jean-Christophe Vercauteren. These strong additions to the firm enhance our Digital Finance Team’s position on top of the Belgian market.

The highly respected Joan Carette joins our Fintech and Financial Services team as a partner next to Catherine Houssa and Philippe De Prez, where she will reinforce our regulation and FinTech skills and allow to improve our focus on the Tech aspect of our expertise.

Joan Carette has 20 years of experience in FinTech, payments, e-money, AML and more generally banking and financial services and the prudential supervision of financial institutions. She worked as a regulator in the prudential supervision department of the FSMA, and in Belgian and international law firms for over 15 years.

Clients admire her “very flexible, pragmatic approach,” as well as her “deep knowledge of financial regulation.” (Chambers & Partners)

FinTech, Payments and Financial Services play key roles in our economy and require to combine strong legal knowledge with tech-savviness and proactivity. In this context, I am delighted to join the strongest Digital Finance Team on the Belgian legal market. Together, we will be able to offer the best possible guidance to our clients,” says Joan Carette.

Jean-Christophe Vercauteren has solid regulatory expertise in FinTech, payment services and e-money, AML and more generally banking and financial services. He gathered experience as a lawyer in Belgian and international business law firms, and as a legal counsel in a Belgian bank.

I could not think of a more stimulating environment than Simont Braun’s Digital Finance Team to further develop my expertise. Being part of the pioneer FinTech law firm in Belgium will be a daily motivation, and I am happy to contribute to broadening its capabilities,” says Jean-Christophe.

We are proud to welcome top talents like Joan and Jean-Christophe in the team. With them on board, our Digital Finance Team strengthens both its financial services and tech capabilities,” adds Philippe De Prez, partner in FinTech and Financial Services.

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Simont Braun’s pioneer Digital Finance Team is one of the best and most-qualified teams in Belgium. “The firm has proven itself as one of the very leading players in the market, having advised on groundbreaking projects involving areas such as alternative lending, micro-savings, robo-advisory, blockchain, ICOs and virtual currencies.” Simont Braun is the only law firm ranked in Band 1 in Belgium in FinTech by Chambers & Partners. The firm is also ranked Tier 1 in FinTech by the Legal 500, and Tier 1 in Financial Services Regulatory by IFLR 1000.

Autonomous Vehicles in Belgium. Is our legal system ready?

We have been hearing about autonomous vehicles (“AVs”) for quite a while. However, as time goes by, the use of AVs is getting closer to becoming a reality. In various countries, car manufacturers are now carrying out tests on open or closed parts of public roads. Just like engineers are facing technical challenges in this field, lawyers have to deal with questions around liability, cybersecurity, data protection, insurance, intellectual property, etc. In this framework, news about AVs accidents are getting less and less uncommon, and they lead to tricky liability questions, such as: can a car user be held liable if he or she had no direct control over the wheel?

Such questions might need a clear answer in the near future and the whole AV subject at large is gaining track. Recently, a Belgian politician launched the idea to make Belgium the first country to welcome AVs. In parallel, the European Commission issued in February 2020 a White Paper on Artificial Intelligence, referring to liabilities incurred by AI, and by extension by AVs.

What do you mean, “autonomous” vehicle (“AV”)?

AVs’ autonomy varies in degree. Subject to a specific European scale of autonomy measurement, authors generally refer to the Society of Automotive Engineering (“SAE”)’s scale. SAE is an international organisation based in US. It brings together engineers, CEOs, researchers, professors, and students who share ideas on automotive engineering. It established six levels of autonomy, ranging from a complete human intervention (level 0) to a total absence of human action (level 5).

To date, the most advanced AVs on the market are of level 3. In that case, the vehicle can handle itself all aspects of the driving tasks within a certain set of circumstances. In some instances, the human driver must be ready to take back control of the vehicle when the AV so requires, e.g. during a traffic jam. According to car manufacturers’ (enthusiastic) declarations, the next levels of autonomy should reach our market in the coming months or years.

How does Belgian law address liability issues in the case of AV accident?

At this stage, Belgian law does not have any specific liability regime addressing the risks generated by AVs.

A victim of an AV should thus find its way through the existing and non-specific Belgian liability regimes. In short, four liability regimes can be identified as potential legal basis for a claim.

1. The fault-based liability regime (Article 1382 of the Civil Code)

This requires the victim to prove three things: a wrongful behaviour from the AV user, a damage and a causal relationship between the behaviour and the damage.

The tricky question here is whether a driver can be found guilty of a wrongful behaviour if he or she was letting the AV operating itself at the time of the accident?

2. The strict liability regime for the use of defective things (Article 1384 of the civil Code)

The victim should prove its damage and a causal relationship, just like in the previous fault-based liability regime. However, in this case, the victim can limit itself to proving a malfunctioning in the AV, rather than proving a wrongful behaviour of the AV user.

This solves the question raised by the previous regime but raises a new one, e.g. how do you prove a malfunctioning when the accident is the result of an algorithmic decision, which in turn could potentially be the outcome of machine learning?

3. The product liability regime (law of 25 February 1991 on product liability)

This regime is similar to the second liability regime as the victim must prove its damage, a malfunctioning of the AV and a causal relationship between these two aspects. However, in this case, the victim will seek compensation against the manufacturer, not the driver.

Furthermore, the compensable damage will be limited to personal injuries (including moral damage) and, subject to certain conditions, damages to property. Other types of damage (e.g. loss of opportunity) are not recoverable under this specific liability regime.

4. The insurance liability (Article 29bis of the law of 28 November 1989 on compulsory motor vehicles liability insurance).

Once a vehicle is involved in an accident, “weak users” (e.g. pedestrians and cyclists) may obtain compensation from the car insurer for the damages resulting from this accident.

In this case too, recoverable types of damage are limited. They only cover personal injuries or death, as well as damage to clothing (quite oddly).

What’s next?

Vehicles are becoming more and more autonomous. Level 5 (fully autonomous) AVs are still prohibited at this stage but their eventual arrival on the market will generate liability questions for which our legal system is not well equipped.

They will change the fault-based paradigm and we anticipate that a dedicated liability regime (e.g. based on the mere use of the AV) will be needed to complement our existing legal framework. We at Simont Braun will closely follow up on this and keep you posted.

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For any question, please contact the authors:

Thomas Dervaltd@simontbraun.eu
David-Alexandre Sauvagedas@simontbraun.eu

Simont Braun assists AION in building the new next generation Challenger Bank

Brussels, 10 March 2020  |  Simont Braun successfully assisted AION in building an entirely digital and mobile bank, making it the first of its kind next generation Challenger Bank in Belgium. AION has officially launched its services on 3 March 2020.

AION is the former Banca Monte Pasci Belgio and was purchased by the American fund Warburg Pincus in 2018 in order to transform it into a fully digital financial services provider. AION offers an unrivalled broad spectrum of financial products and services, and beyond banking services, benefitting from an impressive technology and IT support.

Simont Braun’s team has been involved for over a year in developing the new digital products and services in close and successful collaboration with AION’s team,” comments Philippe De Prez, Partner at Simont Braun in Digital Finance and Financial services. “We had the pleasure to collaborate with a very motivated and talented group of people at AION, all working towards an ambitious goal. It has been an intense ride during which we often explored innovative solutions which were so far not available on the Belgian market. This is a space where our team is at its very best. We would like to sincerely thank our clients for this great opportunity to both assist and learn.”

Simont Braun’s Digital Finance Team advised AION on the compliance of their services and products with the applicable regulation, was involved in numerous contract drafting, screen-by-screen compliance analysis and negotiations with the regulator.

The Simont Braun team was led by partner Philippe De Prez, with the assistance of partners Catherine Houssa and Axel Maeterlinck, counsel Thomas Derval, and associates Sander Van Loock, Charlotte De Thaye, Amine Chafik and David-Alexandre Sauvage.

For any question, please contact Nelly Chammas (Marketing & Communication Manager).