As we have previously reported, the U.S. Securities and Exchange Commission (the “SEC”) is phasing in requirements to provide financial statement information in interactive data format using the eXtensible Business Reporting Language (“XBRL”).¹ Set forth below is a reminder of the accelerated filing deadline for annual reports on Form 20-F and the XBRL reporting requirements applicable to foreign private issuers in 2012.

Accelerated Filing Deadline for Annual Reports on Form 20-F

Beginning with annual reports for fiscal years ending on or after December 15, 2011, foreign private issuers are required to file their annual reports on Form 20-F within four months (formerly six months) after the end of the fiscal year covered by the annual report. Accordingly, the filing deadline for 2011 annual reports on Form 20-F of foreign private issuers that have adopted a December 31 fiscal year end will be April 30, 2012. The accelerated deadline applies regardless of a foreign private issuer’s size or the accounting principles used to prepare its financial statements.

XBRL Reporting Requirements

Applicability

All foreign private issuers that prepare their financial statement information in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”), other than “large accelerated filers,” are required to comply with the SEC’s XBRL reporting requirements in connection with their annual reports on Form 20-F for fiscal years ending on or after June 15, 2011.² As such, foreign private issuers with calendar fiscal years are first required to provide XBRL-formatted financial information in 2012 with the filing of their annual report on Form 20-F for the fiscal year ended December 31, 2011.

In addition to annual reports on Form 20-F, foreign private issuers are also required to provide XBRL-formatted financial information in:

• Form 6-Ks that contain either of the following: (i) revised versions of previously filed audited annual financial statements that have been revised to reflect the effects of certain subsequent events; or (ii) current interim financial statements included pursuant to the nine-month updating requirement of Item 8.A.5 of Form 20-F; and
• SEC-filed registration statements, where financial statements are directly included in the registration statement, rather than being incorporated by reference therein.
  As the first filing required by foreign private issuers to include XBRL data is the annual report on Form 20-F, XBRL data is not required to be included in (i) registration statements or applicable Form 6-Ks of filers, other than large accelerated filers, that contain financial statements covering periods ending on or after June 15, 2011 but are filed prior to the filing of the first annual report on Form 20-F covering that period or (ii) registration statements relating to initial public offerings of first-time filers.

Foreign Private Issuers Preparing Financial Statements According to IFRS

Under SEC rules, foreign private issuers that prepare their financial statements in accordance with International Financial Reporting Standards (“IFRS”), as issued by the International Accounting Standards Board (“IASB”), are required to provide XBRL-formatted financial statement information beginning with the filing of their annual reports on Form 20-F for fiscal years ending on or after June 15, 2011. However, in 2011, the SEC provided relief from the XBRL requirements for those issuers until the SEC specifies an XBRL taxonomy for use by such issuers in preparing their interactive data files.

Foreign private issuers that prepare their financial statements in accordance with accounting standards other than U.S. GAAP or IFRS, as issued by the IASB, and reconcile to U.S. GAAP are not required to submit XBRL-formatted interactive data.

Timing and Tagging Requirements

Generally, XBRL-formatted financial statement information is required to be provided at the same time as the rest of the filing to which the information relates. However, the SEC has provided two grace periods applicable to foreign private issuers. First, foreign private issuers are entitled to a 30-day grace period in connection with their first required XBRL filing on Form 20-F. In addition, in the second year of XBRL reporting compliance, foreign private issuers are allowed a second 30-day grace period for their first XBRL filing that is required to include detailed tagging of footnotes and schedules, as opposed to the simpler block tagging permitted only during the first year of required XBRL compliance.³ The grace periods apply to XBRL tags only and do not extend the document’s filing deadline. That is, the XBRL files are required to be filed as an amendment to the filing within 30 days after the earlier of the due date or applicable filing date.

Website Posting

Interactive data in XBRL format that is required to be filed with the SEC is also required to be posted on the company’s corporate website by the earlier of the calendar day on which the data was filed or was required to be filed and must remain on the company’s website for a period of at least 12 months. The SEC has also stated that including a hyperlink to the SEC’s website does not satisfy the website posting requirement and the XBRL data posted to a corporate website should be accessible through the website address that the company normally uses to disseminate information to investors.

Consequences of Non-compliance

If a foreign private issuer fails to file the required financial statement information in XBRL format, or post the same on its corporate website, the company will not be considered current in its reporting obligations under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), and would, as a result, be precluded from using short-form registration statements on Form F-3 or S-8 or incorporating information by reference into a registration statement on From F-4. In addition, such issuer would no longer be deemed to have adequate current public information available for purposes of the SEC’s Rule 144 until the delinquent XBRL data is provided to the SEC and/or posted to the company’s website. Once a company complies with the interactive data requirements, it will again be deemed current in its Exchange Act reporting obligations.

Limited Liability

XBRL interactive data is excluded from the scope of officer certifications required to be provided in connection with annual reports on Form 20-F.

In addition, under SEC rules, a company’s liability for XBRL interactive data is limited during the two-year period after the company is initially required to provide XBRL interactive data but no later than October 31, 2014. The limited liability provisions include:

• Excluding the XBRL data from the anti-fraud provisions of the U.S. securities laws, provided the company makes a good-faith attempt to comply with the XBRL requirements and promptly corrects any failure after becoming aware of it; and
• deeming the XBRL data “furnished” and not “filed,” and not part of a registration statement or prospectus, for purposes of the applicable liability provisions of the U.S. securities laws.

In the case of a foreign private issuer, the two-year limited liability period runs from the due date of the foreign private issuer’s first Form 20-F required to include XBRL interactive data, exclusive of the 30-day grace period available to first-time XBRL filers discussed above. For example, if the foreign private issuer’s first Form 20-F required to include XBRL data is due on April 30, 2012, the two-year limited liability period ends on April 30, 2014.

If you have any questions concerning this bulletin, please contact your Seward & Kissel LLP Capital Markets Group attorney.

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¹ XBRL is an XML-based, mark-up language used to define or “tag” financial statements using standard definitions so the information in those statements can be recognized, processed and analyzed by a variety of different software applications.

² Large accelerated filers (generally, companies with a public float of $700 million or more) that prepare their financial statements in accordance with U.S. GAAP became subject to the SEC’s XBRL reporting requirements in connection with their annual reports on Form 20-F for fiscal years ending on or after June 15, 2010 or, in the case of large accelerated filers with a public float of $5 billion or more, their annual reports on Form 20-F for fiscal years ending on or after June 15, 2009.

³ For foreign private issuers that prepare their financial statements in accordance with U.S. GAAP, other than large accelerated filers, the second year of compliance begins on June 15, 2012.