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Arbitration
China
When is a dispute an inheritance dispute?
05/08/2010 The Supreme People's Court recently issued a direction that an arbitral award should be refused recognition and enforcement as the arbitration concerned an inheritance dispute and was therefore not arbitrable. However, a request for a declaration of title to a 50% equity share in a company by way of succession could be characterized as a commercial matter.
Ecuador
The future of international arbitration in Ecuador: the boomerang effect
22/07/2010 It is possible that Ecuador's recent initiative to end international arbitration will have the opposite effect. Arbitration clauses have been included in at least two recent international credit agreements between Ecuadorian public entities and multinational financial institutions. International arbitration remains alive and well as a mechanism to resolve disputes with the Ecuadorian state and state entities.
Italy
New rules for Milan Chamber of Arbitration
12/08/2010 The Milan Chamber of Arbitration's new rules make it fully competitive with international arbitration venues. Among other things, the reinforcement of the tribunal's case management powers - for example, on the choice of law, the taking of evidence and the admission of new claims - should allow the tribunal to adopt a more balanced and flexible approach to determination without sacrificing reasonable expediency.
Malaysia
Opposing award enforcement on the grounds of public policy
15/07/2010 Two awards were issued in favour of the plaintiff and enforcement was sought pursuant to Section 38 of the Arbitration Act 2005. The defendant opposed the enforcement of the awards on the grounds of public policy pursuant to Section 39(1)(b)(ii) of the act. The Malaya High Court held that 'public policy' means more than a mere conflict with domestic laws and must be such as to lead to a substantive miscarriage of justice.
Mexico
Confusion and criticism over Supreme Court of Justice interpretation
26/08/2010 In ruling on a judicial review claim, the First Chamber of the Supreme Court of Justice has interpreted several fundamental aspects of arbitration. However, on many points the rationale on which the court relied is inconsistent with applicable doctrine and legislation; as such, it has confused rather than clarified issues that lie at the heart of arbitration's processes and philosophy.
Russia
New laws set out sound framework for mediation
05/08/2010 Until now, mediation proceedings in Russia have been theoretically available, but relatively rare. However, following several years of debate regarding the need for alternative dispute resolution, new legislation has been promulgated that finally provides a clear legal basis for mediation proceedings.
Switzerland
International award annulled on grounds of procedural public policy infringement
29/07/2010 A recent case represents the first time that the Supreme Court has annulled an international arbitration award on procedural public policy grounds according to Article 190(1)(d) of the Private International Law Act. However, the importance of the case should not be overstated, since it relates to a particularity of the International Federation of Association Football's dispute resolution mechanism.
United Kingdom
Court of Appeal holds religious criteria for appointment of arbitrators unlawful
12/08/2010 The Court of Appeal has unanimously held that the Equality (Religion and Belief) Regulations 2003 rendered an arbitration agreement in a commercial contract void. This decision will restrict parties' ability to select characteristics of arbitrators in commercial agreements. It may even affect the choice of England for arbitrations and cause enforcement problems in jurisdictions where religious law is in place.
Court refuses to enforce adjudicator's decision
22/07/2010 In a recent case it was held that if an adjudicator fails to address a question referred to him or her because he or she takes an erroneously restrictive view of his or her jurisdiction - for example, failing even to consider the defence to the claim or some fundamental element thereof - such failure might make the subequent decision unenforceable on the grounds of jurisdiction or natural justice.
Validity of provision requiring one party to bear costs of adjudication
15/07/2010 In a recent case the adjudication clause in a trade contract provided that if the contractor referred a dispute to adjudication, it would be liable for its own legal and professional costs and those of the employer, regardless of the eventual decision. It was held that the clause was unenforceable, as it conflicted with Section 108 of the Construction Act and of the Scheme for Construction Contracts.
Aviation
Belgium
Airlines' contractual conditions and websites under scrutiny
21/07/2010 The consumer association Test-Achats recently claimed that the websites and contractual conditions of three airlines - Brussels Airlines, Ryanair and EasyJet - were incompatible with Belgium's fair trading legislation. The Namur Commercial Court's judgments on a range of issues are controversial and, in places, betray a lack of understanding of industry practice; however, they are highly significant for the sector.
Brazil
Recent changes to filing requirements at the Brazilian Aeronautical Registry
04/08/2010 Earlier in 2010 the Brazilian Aeronautical Registry promulgated several changes to its filing procedures that have caused considerable confusion and altered the way in which parties must organise closings. Its objective was to streamline the filing and registration process, and it is hoped that the new policies will result in more consistently applied policies that will help closings to proceed without delays.
China
East Star bankruptcy still carries warning for private investors
11/08/2010 The failure of East Star Airlines' restructuring application marked China's first domestic airline bankruptcy and highlighted some of the policy constraints and other challenges facing China's private airlines. One year on, foreign airlines seeking to enter the market must consider not only these policy concerns, but also the liability risks inherent in potential targets.
Aircraft leases - new rules concerning import duties on rentals
04/08/2010 A new circular from the State Administration of Customs leaves little room for separating the dutiable rentals from certain maintenance expenses that the lessee bears under the aircraft lease so as to save the cost of import duties from the lessee's perspective. The circular may trigger renegotiations by Chinese lessees of the expenses and costs that they bear under aircraft leases.
France
Jurisdiction against carriers: court upholds supremacy of Warsaw Convention
25/08/2010 In X v Gulf Air the First Civil Chamber of the Court of Cassation has reiterated that the jurisdictional provisions of the Warsaw Convention 1929 (and implicitly, those of the Montreal Convention) relating to actions for damages against a carrier prevail over any other grounds of jurisdiction.
Germany
Industry fears impact of €1 billion air travel tax
21/07/2010 From 2011 airlines will be charged a levy of €13 per passenger for European travel and €26 per passenger for intercontinental travel. The plan has already proved controversial, as the new air travel tax will be imposed on airlines still struggling to return to profitability after the financial downturn and the losses from the Icelandic ash cloud. Moreover, the tax arguably violates Article 15 of the Chicago Convention.
India
Airport operators appeal rejection of increased charges before new appellate tribunal
25/08/2010 The newly constituted Airport Economic Regulatory Authority Appellate Tribunal will hear its first appeal against an order rejecting a proposed 10% increase in aeronautical charges at two of India's busiest airports. GVK and GMR, which operate Mumbai and Delhi airports respectively, contested the order based on the premise that they are entitled to administer an automatic increase in "base airport charges".
Mexico
Safety agreement with United States encourages cross-border cooperation
08/09/2010 In 2007 Mexico and the United States signed a bilateral aviation safety agreement, allowing for the mutual acknowledgment of certification standards set by the US Federal Aviation Administration and the Mexican Civil Aeronautical General Directorate. As a result, certification procedures have improved for the wide range of aeronautical product components that are now produced in Mexico.
Spain
Legislation on aircraft noise management is revised
25/08/2010 A new amendment to the Law on Air Navigation expressly recognises the rights of owners of premises in the vicinity of such airports to be indemnified for any damages arising from aircraft noise. It obliges the state to guarantee that noise quality standards are respected and to implement any necessary action plans whenever a noise easement is approved that allows an increase in those standards.
Latest regulatory developments in the legal aerospace environment
18/08/2010 A new royal decree governs the grant, renewal, amendment and revocation by the Spanish aviation safety agency of licences granted to air navigation services providers. Meanwhile, the Autonomous Community of Madrid has been given exclusive control over airports and heliports suitable for practising aerial sports and those where commercial activities do not take place.
United Kingdom
Standby duty for aircrew: new rules on calculating annual working time limit
21/07/2010 The Civil Aviation (Working Time) Regulations 2004 established an annual working time limit of 2,000 hours for aircrew. However, amending regulations provide that although standby duty normally counts fully against the annual working time limit, time spent on standby will be counted as half in certain limited circumstances.
Banking
Austria
Supreme Court rules on revocation of credit based on forged cheques
13/08/2010 In a recent case a claimant deposited two cheques with an Austrian bank for encashment from French banks, on which the cheques were drawn. The cheques were later found to be forged. The French banks asked for a refund, so the Austrian bank cancelled the credit and returned the funds to them. The claimant, who had no prior knowledge of the forgery, sued the Austrian bank to reverse the cancellation of the credit.
Czech Republic
Newly defined crimes to affect banking sector
23/07/2010 The new Criminal Code has come into force. Some new crimes which were not criminalised under the previous regulations are of particular importance to the banking sector - for example, the crime of data-carrier damage and infringement of computer equipment through negligence may have serious consequences for bank employees.
Estonia
New guideline issued to clarify roles of collateral agents and underwriters
23/07/2010 Since most credit institutions (including banks) provide collateral agent services as well as acting as underwriters, the regulation stipulated in the Financial Supervision Authority's latest advisory guideline will introduce some new rules of play. The guideline is built on three pillars: the obligations of the collateral agent, the role of the underwriter and matters related to conflicts of interest.
Germany
Payments based on direct debit authorisations deemed insolvency-proof
20/08/2010 The Federal Supreme Court has authorised banks to amend their general conditions to the effect that all payments based on direct debit authorisations are insolvency-proof. Thus, banks and insolvency administrators now have guidelines as to how they must proceed with regard to direct debits in insolvency cases during the transition period.
Capital Requirements Directive II to be implemented
13/08/2010 In response to the financial markets crisis, the Basel Committee on Banking Supervision formulated various new banking regulatory rules, which the European Union compiled in the EU Capital Requirements Directive II. Germany is determined to implement the directive by December 31 2010, despite recent signals from the committee that member states will be allowed more time.
Greece
Hellenic Financial Stability Fund to provide safety net for banking system
23/07/2010 A memorandum of agreement signed by the government, the European Commission, the European Central Bank and the International Monetary Fund provides for the foundation of a monetary and financial stability fund. The aim of the fund is to maintain the stability of the national banking system by supporting the capital adequacy of banks operating in Greece and creating a safety net for this purpose.
Hungary
Will new bank tax kill the recovery?
30/07/2010 A new law that imposes a heavy additional tax on the financial sector may be challenged before the Constitutional Court. The tax has been sharply criticised by some economists, who suggest that it will cut banks' profits by around one-third, curb lending activity and hinder economic growth. Moreover, unlike the proposals being discussed at EU level, the revenue will not be used to support distressed banks in future.
Comprehensive new credit information system in the pipeline
16/07/2010 The central credit information system is undergoing reform, with a new credit reference service to be launched in October 2010. The service will contain information on natural persons who have paid their loans in compliance with their terms. It is expected to remedy the existing system's deficiency, whereby credit institutions can obtain only negative information about natural persons.
Indonesia
New prudential principles for banks as agents for foreign financial products
03/09/2010 Bank Indonesia recently issued a number of regulations as part of a new monetary policy package, including the Regulation on Commercial Banks' Obligation to Apply the Prudential Principles in their Activities as Agent for Overseas Financial Products. Among other things, the new regulation broadens the scope of what Bank Indonesia considers to be agency activities in foreign financial products.
Latvia
Government approves new measures for non-bank lenders
27/08/2010 The government has approved amendments to the Consumer Rights Protection Law which were designed in order to implement the provisions of the EU Consumer Credit Directive and to establish a licensing system for non-bank consumer lenders.
Malta
Recent CEBS developments: implications for Maltese banks
13/08/2010 The Central Bank of Malta and the Malta Financial Services Authority recently published the results of the stress-testing exercise performed on Bank of Valletta plc. This extensive exercise, coordinated by the Committee of European Banking Supervisors, aimed to gather information and assess the resilience of the EU banking system to possible adverse economic development.
Nigeria
Dealing with bank insolvency: Asset Management Corporation of Nigeria Act
20/08/2010 As part of continuing efforts by the government and the Central Bank of Nigeria to clean up the banking sector and manage the impact of the global financial crisis in Nigeria, the National Assembly has passed an act creating the Asset Management Corporation. This corporation is designed to resolve liquidity problems in the financial sector and revive the vital credit role of deposit banks and financial institutions.
Panama
New regulation issued enforcing mandatory credit rating reviews for banks
06/08/2010 The Superintendency of Banks of Panama recently adopted an agreement obliging all general and international licensed banks in Panama to submit to reviews by credit rating agencies. Only agencies which comply with the fundamentals of the code of conduct for credit-rating agencies set forth by the International Organisation of Securities Commissions are acceptable for the purposes of compliance with the agreement.
Spain
Savings banks feel winds of change
16/07/2010 In recent years Spanish saving banks have suffered, particularly as a result of massive lending to real estate developers during the housing boom. As an alternative way of supporting savings banks without affecting their regional nature and social character, the Spanish Central Bank set up the institutional system of protection, according to which the liquidity and credit risk of different financial institutions is shared among them.
Switzerland
SwissBanking revises Portfolio Management Guidelines
30/07/2010 SwissBanking – the Swiss bankers' association – has adopted a revised version of its Portfolio Management Guidelines. The revised guidelines, which were previously approved by the Financial Market Supervisory Authority, introduce major amendments regarding conflicts of interest and remuneration.
United Kingdom
Pari bonds: key negotiating points for banks
27/08/2010 For leveraged and crossover capital structures that include secured bank debt, bondholders often look to share guarantees and security on a pari passu (ie, equal) basis with the banks. This update analyses the key intercreditor issues where the capital structure of a borrower group contemplates both a secured bond (termed a 'pari bond') and a secured bank facility by reference to a single pool of assets.
Emergency Budget's bank levy plans: assessing the impact
06/08/2010 The Emergency Budget included plans for a banking levy that will be payable by UK banks, banking groups and building societies, as well as UK branches or subsidiaries of foreign banks or banking groups. The impact of the measures may restrict the profitability of global banking groups, in particular when added to the various higher capital and liquidity charges due in the next few years.
Chancellor's speech sets out future of financial services regulation
16/07/2010 The chancellor of the exchequer's Mansion House speech provided further details of the government's proposals to reform the financial services sector. Among other things, the chancellor proposes to create a subsidiary of the Bank of England to provide micro-prudential supervision of banks, investment firms, building societies and insurers, and to establish an independent commission on the banking industry.
USA
President signs Dodd-Frank Act into force
06/08/2010 President Obama has signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act. Many provisions of the act require rulemaking by the applicable regulator before they become effective, but others become effective after the date of enactment of the act.
FinCEN proposes new application of Bank Secrecy Act
23/07/2010 The Financial Crimes Enforcement Network has released a proposed rule that would revise the Bank Secrecy Act requirements for money services businesses with regard to stored value products and services. The rule is intended to address "regulatory gaps that have resulted from the proliferation of prepaid innovations over the last ten years and their increasing use as an accepted payment method".
Capital Markets
Albania
Scope of Law on Securities remains uncertain
10/08/2010 Almost two and a half years after its entry into force, the scope of the Law on Securities remains uncertain and the Albanian Financial Supervisory Authority has not yet approved the secondary legislation on the operation of the securities market. The main issues concerning the Law on Securities stem from the uncertainty regarding its field of application.
Austria
Profit participation certificates in light of new Supreme Court ruling
07/09/2010 Only a few months after the Supreme Court issued a landmark ruling concerning the invalidity of prevalent and customary clauses included in terms and conditions of Austrian law-governed bond issues regarding consumer bondholders, a new Supreme Court ruling has extended some of the court's legal views to the terms and conditions of profit participation certificates.
Egypt
Amendment to Listing Rules imposes new disclosure requirements
17/08/2010 The board of directors of the Egyptian Financial Supervisory Authority (EFSA) recently passed Resolution 67/2010, which imposed certain disclosure requirements on companies listed on the Egyptian Exchange (EGX). The resolution obliges listed companies to provide the EFSA and the EGX with briefings of all board meeting minutes, as well as minutes pertaining to ordinary and extraordinary shareholders' meetings.
India
Going public: think twice (25% public float mandatory)
17/08/2010 At the time of an initial listing of shares, a minimum offer is generally prescribed, while a minimum public float is prescribed for continued listing based on the Listing Agreement. Given the volatility of the global market since 2008, the Indian finance minister has proposed to raise the threshold for non-promoter, public shareholdings for all listed companies.
Indonesia
New regulation on discretionary fund management
27/07/2010 The Capital Market and Financial Institutions Supervisory Board has issued guidelines on the management of individual customers' securities portfolios. The guidelines were issued as Regulation VG6, which aims to regulate discretionary fund management for the funds of a securities company's individual customers, and requires fund managers to enter into a discretionary fund agreement with the investor concerned.
USA
Dodd-Frank Act: elimination of rating agency protections
24/08/2010 The Dodd-Frank Wall Street Reform and Consumer Protection Act has eliminated the exemption from the expert consent and liability provisions under the Securities Act for any credit ratings issued by a nationally recognised statistical rating organisation. However, the four largest rating agencies have publicly stated that they will not provide such consent to bond issuers that wish to use ratings information.
Commercial Property
Austria
Supreme Court permits flexible VAT clauses in rent agreements
13/08/2010 Value added tax (VAT) regulations allow landlords either to charge 20% VAT on commercial leases or treat them as VAT exempt. In the latter case, VAT on any costs related to the lease becomes non-deductible. In commercial leases the parties usually agree to charge VAT on rent because the tenant is entitled to claim VAT input tax deductions. However, certain tenants are not entitled to claim input tax deductions.
Germany
Compulsory tender process for public sector property transactions
03/09/2010 On the request of the Dusseldorf Higher Regional Court, the European Court of Justice (ECJ) has delivered an eagerly awaited decision on the obligation to carry out a tender process for public sector property transactions. An examination of the ruling refutes the notion that the ECJ has held, as many had assumed, that municipal property transactions are fundamentally not subject to EU public procurement law.
Ukraine
Amendments to rent-rating procedure for use of state-owned facilities
30/07/2010 Cabinet Regulation 316/2009 (as amended) stipulated that until January 1 2011, rental charges for the use of state-owned facilities (with some exceptions) were to be applied at the rate of 45% of the value set according to the procedure for rating and use of rental payments for state-owned facilities. However, a new resolution has amended these rates.
USA
Illinois appeal courts affirm mortgagee's right to appointment of a receiver
06/08/2010 Two recent decisions confirm that under Illinois law, a mortgagee has the right to be placed in possession of a mortgage property prior to entry of a judgment of foreclosure where it can show that the mortgage authorises possession and is likely to prevail on a final hearing, and that the mortgagor has not established any good cause to remain in possession of the property.
Company & Commercial
Albania
Withdrawal and expulsion of shareholder from a limited liability company
23/08/2010 In addition to being able to withdraw from a limited liability company through sale or cancellation of shares, a shareholder can be subject to withdrawal on reasonable grounds or expulsion, pursuant to Articles 101 and 102, respectively, of the Entrepreneurs and Commercial Companies Law. Both provisions are based on the principle that a partnership can be terminated on reasonable grounds.
Austria
Clause linking board member's employment to corporate function permissible
31/08/2010 In a recent decision the Supreme Court was called upon to determine the permissibility of a clause in the employment contract of a management board member of an Austrian stock corporation which set forth that the (employment) contract would terminate automatically upon a recall of the board member from his corporate function.
Bermuda
Ensuring that a company meeting is properly conducted
09/08/2010 A general meeting is under the control of the chairman, who must concentrate on the punctilious conduct of the meeting. The company bylaws usually provide for the appointment of a chairman. Generally, the chairman of the board of directors will act as chairman of the general meeting. If that person is absent, another director nominated by the board will normally assume the position.
Cayman Islands
Grand Court rules on loss of substratum
19/07/2010 A recent Grand Court decision provides useful guidance regarding 'loss of substratum', one of the bases which justifies a winding-up on just and equitable grounds. The case demonstrates that the Cayman courts are willing to take a commercial view in relation to substratum arguments in appropriate cases in order to assist investors in Cayman companies.
Germany
Federal court to rule on non-German company directors' liability
23/08/2010 In a series of judgments the German courts have subjected directors of UK limited companies with centres of main interest in Germany to German insolvency law. This issue has long been disputed by legal commentators and may well be referred to the European Court of Justice.
Malaysia
DiGi wins company name dispute
19/07/2010 The Malaysian High Court recently decided on an appeal to the high court against the registrar of companies' decision to refuse to order the second defendant, DiGi.Com Berhad, to change its company name. The plaintiff contended that the second defendant's name was confusingly similar to its own name, DG Kom Sdn Bhd, thereby rendering it 'undesirable' under Section 22(1) of the Companies Act.
Switzerland
Supreme Court rules on contractual penalties
31/08/2010 Following a Supreme Court ruling, it is now possible to provide in purchase agreements that the seller will forfeit the right to claim part of the purchase price if it breaches contractually stipulated obligations. However, penalty clauses which provide for the loss of the right to claim part of the purchase price in case of breach of the seller's contractual obligations in an excessive manner may be mitigated by the court.
Turkey
Capital increases under the Commercial Code
16/08/2010 The provisions that apply to capital increases differ depending on whether the company is a public company or a non-public company. The addition of new capital to increase the capital of non-public companies is regulated by the Commercial Code, while for public companies it is regulated by the Capital Markets Law.
United Arab Emirates
Recent changes to Commercial Agencies Law
31/08/2010 The UAE federal government recently published Federal Law 2/2010, which amends certain provisions of the Federal Law Regulating Commercial Agencies. The amending law varies the termination and renewal provisions of the Agencies Law and establishes a committee to hear disputes that arise in respect of commercial agencies.
United Kingdom
Rare win for respondent at Companies Names Tribunal
16/08/2010 Since December 2008 there have been over 100 adjudications before the Companies Names Tribunal, all of which - until now - have been in favour of the applicant. A recent case demonstrates that where a similar name is adopted by a company for genuine reasons, that company's rights can be protected.
Competition
Albania
Impact of new administrative contraventions law on competition offences
22/07/2010 Parliament recently approved the new Law on Administrative Contraventions. Based on the provisions of the new law, as well as on the proposed amendments to the Competition Law, facts constituting competition infringements should be considered and relevant fines decided by the Competition Authority.
Austria
Federal Cartel Authority searches law firm's office
29/07/2010 In 2009 the Supreme Court authorised the search of an Austrian company's premises to investigate possible cartel law infringements relating to the German fire engine market. Recently, in dealing with the same alleged infringement, the court issued a decision on the preconditions for searching the offices of attorneys who represent possible cartel members
Belgium
Investigation reveals possible agreements or concerted practices in BSE testing
19/08/2010 The College of Competition Prosecutors has reported to the Competition Council on the existence of agreements or concerted practices between laboratories that carry out bovine spongiform encephalopathy tests in Belgium. The report suggests that several slaughterhouses and a government agency - the Federal Agency for the Safety of the Food Chain - were also involved.
Canada
Competition Bureau recent developments
29/07/2010 The Competition Bureau has released policy documents that are designed to increase transparency in its review processes and provide greater clarity to stakeholders. In addition to the draft Fee and Service Standards Handbook for Merger-Related Matters, the bureau recently issued a policy on disclosure of information in hostile transactions and a memorandum of understanding with the Department of Public Prosecutions.
China
Anti-monopoly regulator addresses competition regime controversies
02/09/2010 The Ministry of Commerce recently held a press conference regarding the development of anti-monopoly regulation in China. The head of the Anti-monopoly Bureau answered questions from journalists and, for the first time in the two years since the Anti-monopoly Law was implemented, clarified some of the controversial aspects of the competition regime, including the perceived bias against foreign companies.
Conditional approval for Novartis's acquisition of Alcon
26/08/2010 The Ministry of Commerce's Anti-monopoly Bureau has approved Novartis's acquisition of Alcon. Among other conditions, Novartis is required to cease sales of the anti-infection and anti-inflammatory drug Infectoflam in China by the end of 2010. Its subsidiary, CIBA Vision Shanghai, must terminate its sales and distribution agreement for contact lens care products with the largest player in the Chinese market.
Divestiture rules highlight importance of choosing the right trustee
22/07/2010 The Ministry of Commerce has released the Provisional Rules on Implementing Divestiture of Assets or Businesses, which set out the roles of supervisory trustees and divestiture trustees, drawing on EU and US models in doing so. Although they leave certain conflict of interest issues unresolved, the rules represent a significant step forward for a rapidly developing concentration review regime.
Croatia
Competition Agency approves latest mergers
26/08/2010 The Competition Agency has given final approval to the Mol/INA merger, finding that the structure of the relevant market showed that there would be no negative competitive effect. In addition, the merger between Atlantic Grupa and Droga Kolinska and the joint venture controlled by Merck & Co and Sanofi-Aventis have been approved.
Finland
Government proposes new Competition Act
26/08/2010 The government has proposed a new Competition Act. Under the proposal, a new test to be used in the merger control procedure will be introduced and new rules on fines and damages implemented. The law is expected to enter into force at the beginning of 2011.
France
Commitments procedure clarified, but uncertainty remains regarding limits
05/08/2010 The commitment procedure allows undertakings to resolve the competition concerns contained in the Competition Authority's preliminary assessment and to propose commitments in order for companies to avoid being penalised for restrictive agreements or abuses of dominance.
India
Key Competition Commission investigations and related developments
12/08/2010 The Competition Commission recently issued an interim order under Section 33 of the Competition Act in response to a petition filed by Reliance Big Entertainment, which effectively stays the ban on the screening of the film Raavan in Karnataka by the Karnataka Film Chamber of Commerce. The film chamber had reportedly been taking arbitrary decisions through its restrictive policies on the screening of non-Kannada films.
Competition Commission passes closure orders
05/08/2010 The Competition Commission has closed five 'information' cases filed under the Competition Act 2002 and three cases of pending investigations transferred from the director general of investigation and registration. Notably, these closure orders by the commission at the preliminary stage are appealable and aggrieved parties may approach the Competition Appellate Tribunal.
Israel
Raising the stakes: IAA arrests cartel suspects
26/08/2010 While the Israeli Antitrust Authority (IAA) has been empowered to arrest suspects in antitrust investigations for years now, it had never made use of this power until recently. In the past, the IAA detained suspects for questioning, releasing them (sometimes subject to bail) after several hours of intense interrogation. Two recent cartel investigations in the bakeries market and the water counters segment mark a possible change to this policy.
Latvia
Council increases Riga Freeport Authority fine for failure to meet obligations
12/08/2010 In 2009 the Competition Council fined Riga Freeport Authority for abuse of its dominant position and imposed certain obligations on the authority. On the grounds that the authority subsequently delayed the fulfilment of certain obligations and completely failed to fulfil others, the council has now increased the fine by approximately 22%.
Netherlands
Competition Authority issues informal advice on the timing of a notification
05/08/2010 The Competition Authority recently issued informal advice confirming that the intended amendment of articles of association to provide sole control to one company over another company with effect from April 1 2013 constituted a concentration which had to be notified before the amendment, and not at the time the control could actually be exercised.
Tree grower cartel: fine reduced due to time-barred single continuous infringement
05/08/2010 Two tree growers recently appealed a Competition Authority fine for their participation in a cartel. The Rotterdam District Court ruled that, having regard to the five-year limitation period and the fact that the authority's decision dated from 2007, turnover achieved before 2002 related to the time-barred part of this single and continuous infringement.
Legislation on increased buyer power protection comes into force
22/07/2010 The European Commission is not alone in its quest for more protection against buyer power. The Dutch Parliament recently adopted a bill to increase the market share threshold of the national de minimis clause to provide small and medium-sized companies with more leeway to join forces against buyer power.
Court of Appeal confirms that bankruptcy is no excuse for avoiding antitrust fines
22/07/2010 The Competition Authority can be quite persistent in its pursuit of payment of antitrust fines. The Court of Appeal recently confirmed that the director of a bankrupt construction company could be held liable for payment of an authority fine. The case arose from the company's non-payment of a fine imposed under a special accelerated procedure.
Budget cuts may force friendship among regulators
15/07/2010 At the announcement of the Competition Authority's 2009 annual report, its chairman, Pieter Kalbfleisch, stated that the government's intended budget cuts may result in more cooperation between fellow regulators. At the same time, however, it could lead to less effective regulation.
A stitch in time saves €2.15 million
15/07/2010 The Competition Authority has imposed a fine of approximately €1.4 million on UK insurer Amlin and €782,000 on the Dutch state for failure to notify Amlin's acquisition of Fortis Corporate Insurance from the state. The authority rejected the state's argument that it could not be caught by the merger control provisions of the Competition Act since it did not qualify as an 'undertaking'.
Pakistan
Facilitation services of the Competition Commission
22/07/2010 The Competition Commission provides advisory services to undertakings through the Acquisitions and Mergers Facilitation Office, which helps parties contemplating merger or acquisition that want to obtain the commission's view on the matter. The Office of Fair Trading, which has been established to act as a watchdog, identifies and provides solutions to potential issues and handles grievances.
Portugal
Competition Authority plots course for fully liberalised postal sector
12/08/2010 Since the end of the 1990s a gradual and controlled liberalisation process has been underway in the national postal market. This transition must be finalised in the coming months. A Competition Authority study indicates forms of conduct that may be interpreted as anti-competitive and identifies measures to foster competition in the sector.
Competition Authority prohibits merger following media regulator's opposition
22/07/2010 In the case of concentrations which occur in markets subject to sector regulation, the Competition Authority must request an opinion from the relevant regulator before making a final decision. The media regulator's opposition to an acquisition of joint control of Grupo Media Capital by Ongoing and Vertix led to the authority's first opposition decision based on a negative binding opinion issued by a sector regulator.
Portugal Telecom wins appeal against Competition Authority fine
15/07/2010 The Lisbon Commercial Court recently ruled in favour of Portugal Telecom in its appeal against a €38 million fine imposed in 2007. The Competition Authority had fined the company for refusing to grant two competing cable operators access to its underground ducts. This decision and the fine in question have now been overturned.
Romania
More guidance, less bureaucracy: amendments signal preventive approach
19/08/2010 The recent amendments to the Competition Law extend the list of penalties to which an economic agent exposes itself when it contravenes the law. However, it is hoped that other changes will reduce the bureaucratic burden on market participants and allow for more direct contact with the authority for guidance purposes.
Internal shake-up at Competition Council will sharpen enforcement
15/07/2010 A series of amendments to one of the fundamental working instruments of the Competition Council has recently entered into force. Among other things, the amending regulation provides that the council's two special divisions for industry and energy and for consumer goods and services will continue to be coordinated by their directorates, but will also be overseen by a commission.
Slovakia
New notice on pre-notification contact
05/08/2010 Merger control proceedings in Slovakia are time consuming. Even in straightforward concentrations, the parties must be prepared to face lengthy proceedings before the Competition Authority. As a result, the Slovak merger control rules constitute an inappropriate administrative burden for competitors. However, the Competition Authority is aware of the complications and is willing to amend the existing rules.
South Africa
Competition Tribunal approves merger between Chlor-Alkali and Botswana Ash
22/07/2010 The Competition Tribunal has approved a large merger between Chlor-Alkali Holdings Limited and Botswana Ash Limited. However, the tribunal acknowledged the potential anti-competitive effects of the proposed transaction and ordered that the merged entity, among other things, sell chemical salt to inland South African-based purchasers at a specified maximum price.
Competition Commission grants exemption to New National Hospital Network
15/07/2010 On May 21 2010 the Competition Commission granted the New National Hospital Network a five-year exemption from certain provisions of the Competition Act. This exemption allows private hospitals that are members of the network to set prices in certain circumstances.
Turkey
Competition Board accepts attorney-client privilege in potential landmark decision
05/08/2010 While the Competition Board has the authority to search the premises of undertakings and request information or documents from them, the law makes no reference to the nature of attorney-client communication. Although attorney-client privileged information and documents are protected in other areas of Turkish law, competition legislation and, until recently, the precedents of the board did not explicitly provide for such protection.
Ukraine
Law on Public Procurement extends Anti-monopoly Committee's remit
05/08/2010 The Law on Public Procurement has come into force, introducing new rules to make public procurement procedures non-discriminatory and more transparent. It sets out new duties for the Anti-monopoly Committee, which is vested with the authority to review disputes arising out of public procurement procedures.
USA
California Supreme Court bars pass-on defence for state law antitrust claims
05/08/2010 The California Supreme Court recently held that California law bars antitrust defendants from invoking a pass-on defence in most circumstances, even though both direct and indirect purchasers may sue for treble damages. The decision raises significant questions about the scope of liability under California antitrust laws and presents a risk of duplicative recovery.
Certain financial hedge arrangements can violate Sherman Act
15/07/2010 The Southern District of New York recently approved a proposed final judgment in the Department of Justice's enforcement action against the KeySpan financial hedge arrangement. The department's enforcement action was an aggressive use of Section 1 of the Sherman Act to prohibit an otherwise lawful agreement because it had as its objective a predictably anti-competitive effect.
Construction
Switzerland
New case law regarding defect notice requirements
31/08/2010 In two recent decisions, the Federal Supreme Court has reaffirmed a number of rules regarding defect notices. While neither judgment overturned or modified existing precedent, the principles underlying the court's findings are of paramount importance for contracts governed by Swiss law.
Corporate Finance/M&A
Austria
MAC clauses in light of new insolvency regime
01/09/2010 A purchaser has the right to walk away from an M&A transaction or to renegotiate it if certain events affect the target enterprise. Besides granting such rights of withdrawal in case of a material adverse change to the target itself, it has become more frequent to stipulate contractual escape clauses relating to alterations in the sphere of a contractual party. New insolvency legislation may affect such clauses relating to insolvencies.
Canada
BCSC releases majority reasons in Lions Gate decision
25/08/2010 The British Columbia Securities Commission (BCSC) released reasons of the majority of the panel supporting its decision to cease trade the Lions Gate shareholder rights plan. The BCSC held that a shareholder rights plan will be tolerated only where it provides a target board with additional time to seek an improved or alternative transaction. A plan may not be used as a 'just say no' defence to a takeover bid.
China
Assembling an effective transaction team
18/08/2010 Many foreign investors in China face difficulties in assembling a successful business project team to implement their project. As well as considering the best composition of an internal team, this update looks at the selection of external consultants: what roles do they play, how should they be selected - and are they really necessary?
India
Securities Exchange Board introduces amendments to the Takeover Code
25/08/2010 The Substantial Acquisition of Shares and Takeover Regulations 1997 (the Takeover Code) established the fundamental rules for mergers and acquisitions. With market conditions evolving, it was felt that the regulations needed to be amended to align them with those of other global markets. A panel has submitted new recommendations for takeovers. The changes are bold and could be sweeping when implemented.
Netherlands
Enterprise Chamber rules on private equity sponsored leveraged buy-out
18/08/2010 In a recent decision on mismanagement of a private equity sponsored leveraged buy-out, the Enterprise Chamber of the Amsterdam Court of Appeal highlighted that such deals require "special attention" from those responsible for looking after the interests of the company involved, including a proper analysis of the benefits and drawbacks of the transaction.
South Africa
Share buybacks under Companies Amendment Bill
18/08/2010 The Companies Amendment Bill, which was published in order to remove errors in the new Companies Act, contains a problematic new provision relating to share buybacks by the company. The provision provides that a decision by the board of a company to acquire its own shares must be approved by special resolution of the shareholders if any shares are to be acquired from a director or prescribed officer of the company.
Corporate Immigration
USA
District court dismisses Broadgate v USCIS H-1B suit
27/08/2010 The US District Court for the District of Columbia has dismissed a suit that challenged the Neufeld Third-Party Placement Memo. The judge concluded that the memo did not constitute "final agency action" under Section 704 that might be subject to judicial review and the notice and comment requirements of Section 553 of the Administrative Procedure Act.
New legislation hikes H-1B and L-1 filing fees
20/08/2010 The new Emergency Border Security Supplemental Appropriations Act contains provisions that will raise the filing fee and fraud fee for H-1B and L-1 petitions filed by companies that employ more than 50 employees in the United States and those that have a workforce which is comprised of more than 50% in H-1B or L-1 status.
USCIS publishes final rule amending Form I-9 regulations
06/08/2010 US Citizenship and Immigration Services has published a final rule making minor changes to the rule relating to electronic employment eligibility verification. This now states that employers and recruiters/referrers which are required to complete and retain Form 1-9 may, for a fee, sign the form electronically and retain a digital version of the form.
Corporate Tax
Argentina
Memorandum 64/2009: what comes next?
16/07/2010 In January 2009 the competent Argentine authority on treaty interpretation issued Memorandum 64/2009. This is the first time that the authority has addressed the issue of treaty abuse and taken a position on whether domestic general anti-avoidance rules can be applied in a treaty context.
Belgium
Exchange of information and bank secrecy: a fine line for tax authorities
06/08/2010 Belgium has been removed from the Organisation for Economic Cooperation and Development's 'grey list' after it renegotiated its existing bilateral tax treaties to insert an article on exchange of information; it has also concluded a number of tax information exchange agreements. This ongoing process has narrowed the scope of application of Belgian bank secrecy rules in an international tax context.
Canada
Appeal Court orders retrial of Heron Bay
20/08/2010 In Heron Bay Investments Ltd v The Queen the Federal Court of Appeal identified a "want of procedural fairness" in the proceedings of the Tax Court that resulted in the latter's 2009 decision. As a result, it returned the matter to the Tax Court for retrial by a different judge. The case concerns a deduction for doubtful/bad debts claimed for tax purposes by Heron Bay in the amount of C$3.77 million in its 1995 tax return.
Canada rethinks taxation of US limited liability companies
23/07/2010 The issue before the Tax Court in TD Securities (USA) LLC v The Queen was the rate of branch tax to be paid under the Canada-US Tax Convention by TD Securities (USA) LLC on Canadian branch profits; or in other words, whether and in what circumstances a limited liability company established in the United States is entitled to enjoy the benefits of the treaty in respect of its Canadian-sourced income.
China
Notice on contemporaneous documentation of transfer pricing
20/08/2010 National and local tax bureaux will be focusing afresh on companies' transfer pricing documentation under a recently issued circular. The State Administration of Taxation has decided to undertake a nationwide programme of random inspections to examine the contemporaneous documentation for such operations.
Cyprus
Cyprus removed from all Italian tax blacklists
20/08/2010 An additional protocol to the Cyprus-Italy agreement on the avoidance of double taxation has been ratified by both countries. The additional protocol provides for the exchange of information based on the Organisation for Economic Cooperation and Development Model Tax Convention. As a result, Cyprus has formally been removed from Italy's three 'blacklists' of countries considered to have systems which favour the avoidance of taxation.
Russia
Ruling raises doubts over profit tax under production sharing agreement
20/08/2010 A panel of judges of the Supreme Arbitrazh Court recently referred to the presidium a tax case involving the contractors of Sakhalin Energy Investment Company Ltd, working under a production sharing agreement for the development of the Piltun-Astokhskoye and the Lunskoye oil and gas fields. The judges' arguments cast doubt on the profit tax and transport tax incentives under the agreement.
Supreme Arbitrazh Court changes course on VAT invoices
16/07/2010 The Supreme Arbitrazh Court has issued a long-awaited resolution on the deduction of value added tax (VAT) on VAT invoices containing inaccurate data and signed by unauthorized persons. The decision differs radically from its 2008 position in ZAO Kestroy-1. Corporate taxpayers should take care to demonstrate that they are not complicit with bad-faith suppliers in their contractual dealings.
South Africa
When to apply for a tax directive from SARS
03/09/2010 The Fourth Schedule to the Income Tax Act 1962 governs the way in which employee tax must be withheld from remuneration paid to employees on a monthly basis. There are certain exceptions to the general rule, which place an obligation on the employer to approach the South African Revenue Service and obtain a tax deduction directive for certain classes of remuneration before it is paid to an employee.
Switzerland
Federal Council amends 20 non-bank lender rule
27/08/2010 The Federal Council has amended the Swiss Withholding Tax Ordinance so that, in principle, moneys borrowed from other group companies as lenders of a Swiss borrower no longer fall under the 20 non-bank lender rule. The new ordinance considerably increases Switzerland's attractiveness as a location for group finance companies operating a treasury centre in Switzerland.
USA
Foreign flow-through election's effect on non-compulsory tax treatment
06/08/2010 The Internal Revenue Service (IRS) has taken a step towards vigorous enforcement of the compulsory payment rule for foreign tax credits. In a recent Chief Counsel Advice, the IRS suggested that an Italian election to treat two entities as transparent for Italian tax purposes resulted in a non-compulsory (and therefore non-creditable in the United States) foreign tax payment.
E-commerce
France
Supreme Court quashes rulings holding Google liable for trademark infringement
19/08/2010 The Supreme Court has rendered four anticipated rulings in relation to Google's liability for its paid referencing service, AdWords. The four rulings implement the ruling of the European Court of Justice, which considered the cases in a referral, and annul the appeal rulings that held Google liable for trademark infringement.
Employment & Labour
Belgium
Limits on 'golden parachutes' pose labour law problems
28/07/2010 New corporate governance legislation limits the compensation packages available to departing executives of listed companies. However, if an executive is in a legally binding employment relationship with a company, the Act of July 3 1978 on employment contracts applies. How does the new legislation affect the provisions on severance payments in the 1978 act?
Brazil
Home and away: employment transfers and the Mendes Junior Act
18/08/2010 The Mendes Junior Act aims to protect Brazilian employees working temporarily abroad. To protect transferred employees, the act makes the labour legislation partially applicable to employees working abroad. This is unique given that Precedent 207 of the Labour Court states that the laws of the country where the employee is working are applicable.
Labour Ministry issues rules on health and safety conditions for offshore workers
21/07/2010 The Labour Ministry recently issued Annex II of Rule 30, introducing specific provisions for activities carried out on oil rigs. Annex II establishes minimum requirements for health and safety conditions for offshore workers and upholds the right of offshore workers to be informed about existing risks in the workplace that may endanger their health or safety.
Canada
Federal solvency funding rules and pension investment limits: final regulations
04/08/2010 The federal Department of Finance has released the final amendments to the federal Pension Benefits Standards Act 1985 regulations concerning solvency funding requirements and quantitative investment limits. The changes took effect on July 1 2010 and apply to actuarial valuation reports for pension plan years ending on or after December 31 2009.
Jumping ship: Ontario court dismisses claim against former employees
28/07/2010 In a decision of interest to professionals, their employers and their clients, an Ontario court has ruled that two engineers were entitled to plan secretly to leave their employer to set up a competing firm and even to take the employer's clients with them, as long as there was no solicitation or misuse of confidential information.
China
ACFTU pushes forward on collective bargaining and democratic management
08/09/2010 The government and the All-China Federation of Trade Unions have been preparing for a further push for the implementation of collective bargaining and an increase in what they describe as "democratic management" at all companies. They are clearly still considering how to implement the policy, but recent significant developments indicate what employers may expect.
Germany
Recent developments on age discrimination
08/09/2010 When the prohibition against age discrimination was introduced through the General
Anti-discrimination Act, which transposed various EU directives into national law, the German legislature failed to take into account adequately certain aspects of employment law which are traditionally linked to age. As a result, in recent years the courts have repeatedly had to address the issue of age discrimination.Use of employee data in international corporate groups
01/09/2010 The transfer of employee data is of considerable importance in international corporate groups. Inter-group data transfer in Germany is particularly governed by Section 32 of the Federal Data Protection Act, which deals with the treatment of employee data within an employment relationship. However, such provision is due for amendment and expansion.
Isle of Man
Tribunal reviews effect of payment in lieu of notice
01/09/2010 A case raising the question of the effect on the termination date of a payment in lieu of notice was recently decided by the Isle of Man Employment Tribunal. The tribunal had to look at the real intention behind a payment in lieu of notice and whether, in the circumstances of the particular case, it had the effect of prolonging the period of employment to enable the one-year statutory threshold to be reached.
Italy
International secondment and dismissal: a multinational's duty of repechage
11/08/2010 The Supreme Court has ruled as invalid a multinational company's dismissal of an employee while on secondment abroad because of the position in question was no longer required. This unprecedented decision is the first in which an Italian judge has found that for an employee seconded outside Italy, the obligation to offer alternative positions applies in respect of all other foreign premises of a multinational company.
Luxembourg
Employee's violent behaviour justified immediate dismissal
18/08/2010 The Labour Court has ruled that the dismissal with immediate effect of a security guard for aggressive and violent behaviour towards colleagues in the workplace was justified, despite the fact that the employee had over 10 years' service. It was likely that such behaviour from the plaintiff, in a role that required him to maintain his composure, would permanently and irreversibly weaken an employer's confidence in its employee.
Mauritius
Dawning of a new era in employment law
11/08/2010 A year after its proclamation, legislation governing employment relationships in Mauritius has marked the beginning of a new era in employment law. The Employment Rights Act 2008 has consolidated the old law and the principles underpinning the employment contract. Furthermore, it has endorsed concepts that are now regarded as fundamental to most employment law regimes.
Norway
New legislation regarding retirement benefits
25/08/2010 New legislation regarding national insurance retirement pensions has been enacted and will come into force in 2011. The reform provides more flexibility and offers a number of new options for drawing retirement pensions. The most significant changes are the options to (i) claim pension benefits from the age of 62, and (ii) combine earned income with a retirement pension without reducing the amount of pension received.
Turkey
Protection for whistleblowers under Turkish labour law
18/08/2010 'Whistleblowing' can be defined as when employees "reveal faults in the workplace to the public" or "disclose business malpractice, illegal acts or omissions". Whistleblowers inform their superiors, the relevant public authorities or the media about matters such as abusive, negligent or illegal activities carried out by their employer. At present, there is no specific protection for whistleblowers under Turkish legislation.
Termination of employment contracts and calculation of compensation
28/07/2010 Pursuant to Labour Law 4857, employers may terminate an employment contract for valid or just cause. Employers need to base termination on a valid cause relating to the employee's efficiency or behaviour, or the requirements of the business, in order to terminate permanent contracts of employees covered by the job security provisions of the Labour Law.
United Kingdom
Age discrimination and enhanced redundancy pay schemes
25/08/2010 The Employment Appeal Tribunal has found that it is lawful to cap enhanced redundancy payouts at the total salary that the employee would have received had he or she remained employed until the normal retirement age of 65. In this case, the cap indirectly discriminated against older employees nearing retirement age, but was justified by the legitimate aim of avoiding the employee receiving a windfall.
Court of Appeal relaxes test for justifying retirement age
18/08/2010 Following a recent Court of Appeal decision, employers seeking to justify the use of a retirement age may have more latitude than previously thought, as they will not need to show a public interest objective. However, they will still need to establish a legitimate business rationale for using a retirement age and choosing a specific age. The abolition of the default retirement age from October 2011 removes one possible rationale.
USA
Avoiding crackdown on independent contractor misclassifications
18/08/2010 Experts estimate that employer misclassification of independent contractors costs the federal government $2.7 billion each year. As a result, employers classifying individuals as independent contractors may find themselves audited by the Internal Revenue Service and/or investigated by the Department of Labour. Further, Congress is considering a bill to incentivise companies further to avoid misclassification.
Arbitration cases: favourable developments for employers
11/08/2010 Recent decisions from the US Supreme Court, the US Court of Appeals for the Second Circuit and the New York State Court of Appeals generally bode well for employers with respect to the enforcement of arbitration agreements with employees. They confirm that the burden of demonstrating that an arbitration agreement's provision for the equal sharing of arbitration fees and costs is unenforceable remains on the employee.
Energy & Natural Resources
Brazil
New state-owned company Pré-Sal Petróleo SA approved
31/08/2010 The Senate recently approved Law 309/02, which aims to create a state-owned company with 100% public capital to run production apportionment, oil trading and natural gas contracts. The company will operate all future state apportionment contracts in Brazilian pre-salt areas. Following approval by the Senate, the bill was submitted for presidential approval.
Canada
CSA proposes major changes to Standards of Disclosure for Mineral Projects
09/08/2010 The Canadian Securities Administrators recently published for public comment proposed changes to the Standards of Disclosure for Mineral Projects, as well as the companion policy and the prescribed form for technical reports. The proposals were developed following public consultations with mining industry participants and a general review of the existing rules.
Resource management measures in the Quebec Budget
02/08/2010 In the 2010-2011 Budget, Quebec Finance Minister Raymond Bachand stated that sustainable development will be an important thrust and a significant feature of the economy for the next 20 years. He went on to announce a series of measures centred around two main themes: (i) building a green economy; and (ii) sustainable and responsible management of the province's resources.
Alberta government announces new royalty rate curves and drilling incentives
19/07/2010 Alberta's energy minister, Ron Liepert, recently announced the much-anticipated royalty rate curves for oil and gas wells, as well as incentive programmes for unconventional resource exploration and the use of high-cost technologies. These benefits should allow operators to recover more easily their capital costs and help to mitigate the financial risk associated with investment in high-cost wells and new technologies.
Ireland
Plan to deregulate retail electricity pricing published
16/08/2010 Following the publication of a number of consultation papers earlier this year, the Commission for Energy Regulation has published its decision paper "Review of the Regulatory Framework for the Retail Electricity Market, Roadmap to Deregulation". In the roadmap, the commission outlines its plan to phase out price controls from the Irish retail electricity market.
Contestability of distribution connection
09/08/2010 In the past, prospective generators seeking to connect to the Irish electricity distribution system have queried the cost and timelines presented by ESB Networks for the proposed connection works. A Commission for Energy Regulation paper has now been published following a consultation process which settles the implementation of distribution-level contestability, at least on an initial basis.
Mexico
Pemex: new contract rules come into effect
06/09/2010 Oil company Pemex recently formed the Committee of Strategy and Investments and the Committee of Acquisitions, Leases, Works and Services. This brought into effect the 2009 Contracting Administrative Provisions, which govern services and public works related to productive activities. The provisions replace the more rigid government procurement laws that Pemex had to apply under the previous regime.
Understanding the natural gas sector
19/07/2010 Mexico is one of the few countries that has liberalized its natural gas midstream and downstream industry without liberalizing and allowing competition in gas production. However, the federal government is looking to foster the participation of the private sector in the natural gas industry and increase the production of natural gas.
Netherlands
Regulator issues new congestion management regulations
06/09/2010 The energy regulator has published a decision laying down the new regulations on congestion management. On the basis of the new regulations, it is expected that it will be possible to build new power generation plants pending the time required for the expansion of the power network in congested areas.
Norway
New provisions on lease of developed hydropower plants
23/08/2010 To achieve flexibility in the electricity sector and market, and to ensure that the organisation of the sector helps to improve expertise and innovation, the Industrial Licensing Act has been amended to give domestic and international, and public and private, companies the opportunity to lease already built hydropower plants for a period of up to 15 years.
Poland
Amendments to maritime areas regulations support offshore wind farm projects
31/08/2010 The parliamentary commissions are close to completing their amendments to the Act on Polish Maritime Areas and Maritime Administration. The primary objective of the draft act is to introduce changes supporting the execution of offshore wind farm projects in the Polish maritime areas. The existing version of the act's most significant provisions does not take into account the special nature of offshore wind farm projects.
Higher target for green energy
09/08/2010 The Ministry of Economy plans to increase the share of electricity generated from renewable sources to 18.7% in 2019. It has published a new draft regulation on the obligation to purchase electricity and heat from renewable sources. The main amendments concern an increase in the share of green energy and the elimination of a number of restrictions on the use of forest biomass.
Assumptions to draft Carbon Capture and Storage Bill
19/07/2010 The Ministry of the Environment has carried out a public consultation regarding assumptions to the draft Carbon Capture and Geological Storage Bill. Since, under the bill, the exploration, identification and underground storage of carbon will be licensed activities, it will set down the rules for the grant of such licences and the conditions to be met by applicants.
United Kingdom
Managing the risk of catastrophic events on the UK continental shelf
31/08/2010 The Macondo incident in the Gulf of Mexico has prompted upstream developers to re-evaluate the allocation of liability under their underlying concession documents, joint operating agreements and relevant commercial contracts. Companies active in the UK offshore upstream sector should consider a number of factors in relation to their potential exposure in the event of a catastrophic incident involving their assets.
Supreme Court rules on licence holder's trespass by deviated drilling
16/08/2010 In a recent case involving a dispute between a licence holder and a landowner, the Supreme Court found that a landowner's rights were technically prejudiced by deep drilling for oil under its land. However, the award of token damages acknowledged that the drilling did not interfere with the landowner's use or enjoyment of its land "one iota", and that the landowner itself had no right to extract the oil.
USA
Impact of FERC buy/sell order on natural gas and oil pipeline industries
06/09/2010 The recent order of the Federal Energy Regulatory Commission (FERC) in Arizona Public Service Co may have important implications for the natural gas and oil pipeline industries. FERC broadened the application of its policy of prohibiting buy/sell transactions to include all other pipeline facilities required to provide services without undue discrimination or preference
Environment
Denmark
Energy Board of Appeal upholds Nord Stream pipeline project permit
26/07/2010 The Energy Board of Appeal recently upheld the Energy Authority's permit for Nord Stream AG to construct the Danish section of the Nord Stream pipeline. This was the first decision regarding the Danish Continental Shelf Act to be heard by the board and the decision deals exclusively with environmental issues.
European Union
Regulation voted in to combat illegal timber trade
09/08/2010 The European Parliament has voted overwhelmingly in favour of imposing a full-scale prohibition on the placing on the market of timber which has been illegally harvested and on products made from such timber. The agreement is a clear victory for the European Parliament and has been hailed as an important breakthrough in the global battle against carbon dioxide emissions.
France
Government finally adopts Grenelle Environment Project
09/08/2010 In 2007 the government launched a democratic debate on environmental issues, known as the Grenelle Environment Project. The initiative has now been adopted through the Grenelle 2 Act, the law on the national commitment to the environment. The six major environmental concerns of Grenelle are buildings and urban planning, transportation, energy and climate, biodiversity, governance and risk, health and waste issues.
Jersey
The CRC scheme: potential impact on Jersey trustees
16/08/2010 The Carbon Reduction Commitment Energy Efficiency Scheme (CRC scheme) is a new mandatory climate change and energy-saving scheme aimed at improving energy efficiency and cutting carbon dioxide emissions in the United Kingdom. At present, a particular interest surrounds the impact of the CRC scheme on Jersey trusts where the trustees hold UK property directly.
Netherlands
Impact of new soil remediation policy
31/08/2010 Thirty years after the discovery of the Lekkerkerk toxic waste dump, the remediation of contaminated sites in the Netherlands is still a serious source of concern for the authorities. Recently, delegates of the authorities involved concluded the Covenant on Soil Development Policy and Strategy for Urgent Sites, which aims to remediate most of the 20,000 urgent sites before 2015 with a budget of €893 million.
New Zealand
Confidentiality in environmental risk reviews
06/09/2010 The Supreme Court has clarified the basis on which the Environmental Risk Management Agency should decide whether confidential information regarding hazardous substances is made available to the public. The appeal arose in the context of an application for approval to import or manufacture a hazardous product under the Hazardous Substances and New Organisms Act 1996.
Schedule 4 review: implications for mining and conservation
02/08/2010 Schedule 4 of the Crown Minerals Act identifies crown land with special protection from exploration and mining. A review as part of the government's strategy to increase mineral exploitation has resulted in no removals of land from the schedule; however, it still has notable implications for the sector. Environmental groups and others are awaiting details of a proposed new requirement for public notification of significant mining projects.
USA
EPA proposes new technology rules for boilers and incinerators
19/07/2010 The Environmental Protection Agency has proposed regulations under the Clean Air Act for maximum achievable control technologies for boilers, process heaters and solid waste incinerators. If adopted, the proposed rules would constitute much more stringent regulation of boilers and incinerators because the emissions limitations apply at all times.
Franchising
Germany
Termination of franchise without notice on grounds of suspicion of a crime
24/08/2010 The possibility of dismissing an employee without notice because he or she is suspected of a crime has long been acknowledged in German employment law, and these principles have often been applied to recurring contractual relationships in other areas of law. However, until recently the higher courts had not ruled on the application of the principles of dismissal on suspicion to franchising.
Information Technology
Albania
Dealing with e-documents
10/08/2010 The Law on Electronic Documents lays the foundation for wide application of IT and electronic instruments in transactions and other legal activity. However, full implementation of the law, particularly with regard to the use and acceptance of electronic evidence in court proceedings, would require changes to the Civil Procedure Code and other relevant laws.
Canada
Multi-sourcing: a new twist in outsourcing transactions
20/07/2010 Traditional outsourcing services are challenged by new technology and approaches and a range of options in the delivery of IT services. Multi-sourcing is one of those challenges. This relatively new sourcing model has been proposed by many as an alternative to customary outsourcing services and is seen as the opportunity to establish a collection of externally and internally delivered services.
Insolvency & Restructuring
Italy
Concurrent proposals for composition in bankruptcy
30/07/2010 Composition allows a bankrupt entity to settle past debts by making part-payments to creditors or providing for some form of debt restructuring, while obtaining the release of assets locked up in the insolvency procedure; it can be beneficial to both the bankrupt entity and its creditors. Issues of interpretation may arise where two or more proposals for composition are filed, but legislative changes have made the position clearer.
Japan
Appointing debtor's management as trustee in corporate reorganisation
13/08/2010 Until recently, Japan's corporate reorganisation procedure has rarely been used, despite its advantages. However, the Tokyo District Court has recently become more willing to appoint the debtor's management as a trustee on certain condititions. The court's new approach could allow corporate reorganisations to work in much the same way as
debtor-in-possession procedures.
Netherlands
Bankruptcy trustee's duty to supply information to holder of undisclosed pledge
23/07/2010 Until recently, it was unclear whether the holder of a pledge of a receivable was entitled to demand information about the debtor from the pledgor's trustee in bankruptcy where that information is necessary to enable the pledgee to disclose the pledge to the debtor. However, the Supreme Court has now held that a trustee is obliged to supply the pledgee with such information.
Spain
Scheme of arrangement: when a breach occurs
23/07/2010 The principal aim of the Insolvency Act is the survival of a company - although in 95% of cases this is not achieved. The only way for an insolvent company to continue in business is to come to an agreement with its creditors on the payment of its debts. This is known as a scheme of arrangement. If no arrangement can be agreed, the company must be wound up.
Insurance & Reinsurance
Canada
Applying insurance principles to derivatives
10/08/2010 Derivatives brought the world economy to its knees in 2008/2009. Great investors have called them weapons of mass destruction. As a result of these events, an enormous effort around the world is being focused on how best to regulate derivatives in order to avoid another destructive event. There are important lessons from the field of insurance carefully developed over the centuries that should be considered in this debate.
China
Court rules on interpellation clauses and duty of disclosure
17/08/2010 The Shanghai High Court recently ruled on a case in which, among other things, the insurer disputed the insured's indication of no claim or loss under all bills of lading under the insurance proposal form's interpellation clauses. The insured was found to have been involved in numerous cases before the Shanghai Maritime Court, but it maintained that it was merely the agent of the relevant non-vessel-operating common carrier.
France
Court of Cassation rules on contractual duty of insurers
27/07/2010 The Court of Cassation has emphasized the importance of insurers providing sufficient information to insureds on the restrictive terms of an insurance warranty at the time that they take out the policy. The case involved two dental surgeons who subscribed to a life insurance policy which granted them a capital payment to enable one partner to buy out the shares of the other partner in the event of disability or death.
Hong Kong
Consultation on new regulator promises greater transparency
03/08/2010 The government is seeking to create an independent insurance regulator that will have greater flexibility in operations and staff recruitment. It considers that such a body will better prepare Hong Kong to respond to rapid changes in the international financial markets and developments in international regulatory requirements.
Italy
Clarifications on multi-year contracts restrict discount claw-backs
07/09/2010 ISVAP, Italy's insurance regulator, clarified a number of points in relation to multi-year insurance contracts following amendments to Section 1899(1) of the Civil Code. The clarifications cover an insured's right of withdrawal from a multi-year contract and a restriction on an insurer's right to seek reimbursement for a multi-year discount if the insured withdraws from the contract.
ISVAP consults on guidelines on investments and assets to cover technical provisions
17/08/2010 The insurance regulator ISVAP is consulting on guidelines on investments and the qualitative requirements for activities to cover technical provisions. Following indications by the International Monetary Fund and the International Association of Insurance Supervisors, it also proposes specific investment-related governance rules for the adoption of a framework resolution that formalises the strategic policy of investments.
Court rules on limiting risk and limiting liability
03/08/2010 The Court of Cassation has re-examined the difference between limitation of liability clauses - which are unenforeceable unless specifically approved in writing pursuant to Section 1341 of the Civil Code - and clauses that define the limits of the risk to which an insurance contract relates.
Netherlands
Recent Supreme Court case law
31/08/2010 The Supreme Court has recently considered several key insurance cases. In one, when dealing with the issue of mutual recourse between insurers, the Supreme Court assumed that the two insurers were jointly and severally liable for the insurance claim, and that this shared claim had to be divided in proportion to the extent to which the circumstances attributable to it contributed to the claim.
Portugal
A tax conundrum for Portuguese and foreign insurers
17/08/2010 As a result of two recent changes, the tax regime on insurance contracts under the EU free provision of services appears to have become more advantageous than the regime applying to contracts under Portuguese law. However, fiscal issues are rarely so simple in Portugal and taxpayers must consider the procedures required to make taxation effective.
United Kingdom
FSA policy statement on payment protection insurance complaints
24/08/2010 The Financial Services Authority (FSA) recently published a policy statement entitled "The Assessment and Redress of Payment Protection Insurance Complaints". The industry has objected strongly to the FSA's measures on the issue, maintaining that the FSA has misinterpreted its own rules and has misunderstood the law applying to payment protection insurance sales and the handling of related complaints.
FSA and firms work to enhance terms of mortgage payment protection insurance
17/08/2010 Following its concerns about increases in premiums and reductions in cover in 2009, which resulted in an industry-wide agreement with mortgage payment protection insurance firms, the Financial Services Authority has surveyed firms' progress. The industry's response has been positive: among other things, firms have refunded increases in premiums totalling around £40 million.
Competition Commission consults on retail payment protection insurance
10/08/2010 The Competition Commission has published a consultation paper which deals with changes to the way in which retail payment protection insurance is sold. It proposes a number of measures, including the unbundling of payment protection insurance from merchandise cover and clearer information for customers on the cost of cover.
Consultation on broker's liability for premiums
27/07/2010 The English Law Commission and the Scottish Law Commission have published a joint consultation paper on whether Section 53 of the Marine Insurance Act 1906 should be reformed. Section 53(1) provides that the broker is directly responsible for the premium to the insurer, which means that brokers are personally liable to pay premiums (whether or not they have received them from the policyholder).
Law Commissions' paper on insured's post-contract duty of good faith
20/07/2010 The latest of the English and Scottish Law Commissions' issues papers on insurance contract law considers a policyholder's duty of good faith after the formation of the insurance contract. The commissions focus on the remedies that should be available to insurers if policyholders act fraudulently.
Intellectual Property
Argentina
Legal protection for databases
16/08/2010 Within the framework of the technological revolution, a variety of new activities and industries have emerged, one of which is the compilation of information in databases. Databases have acquired paramount importance, mainly for their use in commercial activities. Given that the creation of such databases generally entails significant investment, their creators are always in search of the best legal protection.
Austria
Opposition proceedings introduced in latest amendment to Trademark Act
16/08/2010 The latest amendment to the Trademark Act grants trademark proprietors the right to submit a notice of opposition against registered trademarks. Previously, a proprietor had to wait for a trademark to be registered before it could challenge the lawfulness of the registration. By implementing opposition proceedings, the legislature also introduced a legal remedy to cancel a trademark registration retroactively.
Belgium
Impact of new commercial practices legislation on regulation of appellations of origin
09/08/2010 The new Market Practices and Consumer Protection Act simplifies the protection of appellations of origin and geographical indications in Belgium, bringing national legislation into line with EU law. As such, it reinforces the framework for appellations of origin and geographical indications and strengthens the positions of rights holders.
China
Lacoste bites back at infringing crocodile mark
06/09/2010 The Beijing Higher Court has upheld a first instance decision that a crocodile logo affixed to shoes infringed two trademarks owned by fashion and sportswear company Lacoste. Although the defendant argued that it had been authorised to use the controversial mark, it was found that the authorising company held the rights in the word element of the licensed logo, but not the device element to which the case related.
Trademarks: a framework for protection
26/07/2010 After many years of accumulating knowledge, particularly since its economic liberalisation, China has established an effective legal system for the protection of trademark rights. Applicants and rights holders should ensure that they understand the issues and procedures involved, from registration to enforcement, ownership changes and rights transfers.
Denmark
Gucci loses trademark infringement case against fashion importer
06/09/2010 The Maritime and Commercial Court has ordered two fashion houses to pay compensation to an importer that they accused of marketing counterfeit goods and trademark infringement. Gucci and Bottega obtained a search order and injunction against Nielsen. Although the court did find for the plaintiffs on two counts, it rejected most of the infringements which Gucci alleged, instead finding for Nielsen.
Dutch manufacturer gutted by Supreme Court patent ruling
31/08/2010 In 1996 Dutch company Meyn was granted a European patent for a device which was designed to remove intestines from poultry after slaughter. Following a claim from Meyn, in 1999 the bailiff's court issued an interim injunction against Danish company Linco Food, which manufactured and sold machinery for the removal of chicken intestines following slaughter, as Meyn was of the opinion that Linco had infringed its patent.
Supreme Court fines EuroPharma for drug rebrand
23/08/2010 The Supreme Court recently ruled on a trademark infringement case involving EuroPharma's parallel import and sale of veterinary drug Tailan, which it rebranded Tylan - a registered trademark belonging to Eli Lilly. Eli Lilly objected to the rebrand and demanded that the product be removed from sale. Eli Lilly was found to be entitled to remuneration, calculated as 5% of EuroPharma's unauthorised turnover from the drug.
France
Sale of luxury products in poor condition constitutes trademark infringement
16/08/2010 The Supreme Court has confirmed that Chanel SA had legitimate reasons to oppose the further marketing and sale of its products by Caud SARL, which operates a discount store business, in accordance with Article 713-4 of the IP Code. Chanel's infringement claim was based on the unsatisfactory conditions in which Chanel's products were advertised and offered for sale in the discount store.
Right to publish protected work after author's death
26/07/2010 The First Chamber of the Supreme Court has rendered a key decision regarding the right to publish a work protected by French author rights. As the owner of the right to publish posthumous works was not the same as the owners of the patrimonial rights in the same works, the court had to determine who was entitled to enter into a publishing contract regarding these works.
Germany
Supreme Court clarifies rules on software patentability
09/08/2010 In a recent decision the Supreme Court clarified the requirements for the patentability of software-related inventions and made it easier to obtain such patents. The decision also created the opportunity to protect software-related inventions independently from the source and object code of the software, to which copyright protection applies.
Supreme Court in Civil Matters rules on parallel import of medical devices
26/07/2010 Although there is plenty of case law from both the European Court of Justice and the German Supreme Court in Civil Matters on the parallel import of drugs, very little exists regarding the parallel import of medical devices. The Supreme Court in Civil Matters recently issued an instructive - and quite surprising - decision in a case relating to the parallel import of in vitro diagnostic medical devices.
Patent court required to consider EPO decisions
19/07/2010 The Supreme Court in Civil Matters has ruled that the Federal Patent Court is required to consider European Patent Office decisions and decisions rendered in other member states of the European Patent Convention if they pertain to similar issues, including whether an invention is novel and inventive. Hitherto, the German courts have appeared reluctant to consider decisions rendered by foreign courts.
Hungary
Metropolitan Appeal Court rules on limitations of prior use
09/08/2010 The Metropolitan Appeal Court recently sought to resolve a complex trademark dispute in a simple way, adopting a narrow and literal interpretation of the Trademark Law on prior use as a basis for opposition and cancellation. The lesson from the decision is clear: brand owners cannot rely on use alone, as registration gives clear priority.
India
Amendments to the Trademarks Rules introduced
23/08/2010 The government has made two amendments to the Trademarks Rules. The first amendment relates to obtaining a duplicate trademark certificate free of charge when the applicant did not receive the original. The second amendment relates to updates to the classifications of goods and services, which will bring them into line with current Nice Classifications.
Israel
Court rules no confusing similarity between marks EVE and EVA
02/08/2010 The Israeli Trademarks Office recently held that no confusing similarity existed between the registered trademark EVE and an application for the design mark EVA. The opponent argued that there was no need to file evidence, since the confusing similarity between the marks was so obvious. In response, the applicant argued that since the opponent had filed no evidence to support its arguments, it had waived its opposition.
Italy
Exhaustion of rights, parallel imports and distribution agreements
26/07/2010 Under Italian law, parallel imports are generally considered legitimate if the goods come from an EU member state in which they have been marketed either by the rights holder or with its consent. Parallel importers can use an associated trademark in advertisements, provided that the limits indicated by EU case law are observed. However, original products may not be sold in a way that abuses the trademark's reputation.
Korea
Does Korea have a world-class standard for evaluating inventiveness?
16/08/2010 In April 2007 the US Supreme Court presented and suggested a standard of judgment on inventiveness in KSR v Teleflex, which has been much studied in various countries, including Korea. This update seeks to consider whether Korea has a standard of judgment on inventiveness. If so, what is it? If not, why not?
Mexico
Protecting an IP portfolio: an effective and targeted anti-counterfeiting strategy
23/08/2010 IP legislation provides rights holders with the tools to take legal action against counterfeiting in order to seize illegal merchandise, obtain preliminary injunctions and bring criminal, administrative and civil actions to seek appropriate remedies against infringement. However, rights holders and their representatives must develop a prioritised strategy that allows them to move swiftly as soon as a violation is detected.
New Zealand
Innovations and taste sensations - patent protection in the food industry
31/08/2010 To people outside the food industry and the IP community, the idea of patenting food may seem ridiculous; some might even consider food patents unfair. However, a wide variety of innovations in the food industry may be patentable. As well as new food products, preparation methods and packaging can meet the requirements for protection.
Commerce minister clarifies position on patentability of computer programs
02/08/2010 The Commerce Select Committee's report on the Patents Bill suggested an amendment that would exclude all computer programs from patent protection. However, Commerce Minister Simon Power has given instructions for guidelines to allow some computer programs to be patented. Software patents are a small part of the bill and account for only 3% of all New Zealand patents, but they are vital to the economy.
Puerto Rico
The clash between the US Copyright Act and Puerto Rican succession laws
09/08/2010 Since copyrights are governed by the US Copyright Act 1976, the federal courts have exclusive jurisdiction as to copyright infringement. However, the federal act does not deal with moral rights granted to authors. In Puerto Rico, moral rights are protected by the provisions of the Intellectual Property Act 1988. This update considers the clash between the two laws regarding the inheritance of IP rights holders' moral rights.
Russia
Rospatent recommendations on letters of consent for trademark applications
26/07/2010 Rospatent, the Russian patent office, has recently issued a document entitled "Recommendations on the Application of Provisions of the Civil Code Regarding Rights Holders' Consent to Registration of Confusingly Similar Trademarks". Although addressed to Rospatent's examiners, the recommendations are also relevant to trademark applicants.
Singapore
Trouble brewing? Nescafé's challenge to red mug trademark
16/08/2010 The dispute between Nescafé and Master Beverage Industries centred on the latter's GOLDEN EAGLE trademark, particularly its motif of a red mug on a mound of coffee beans, which bore similarities to Nescafé's device mark. However, some trademark lawyers and brand owners may wonder what, if anything, the dispute acheived - as no likelihood of confusion was found to exist, Nescafé did not lose out.
Alleged infringer fights back and has opponent's patent revoked
09/08/2010 A German company suffered an unexpected reverse when an action for patent infringement resulted in its registered patent being revoked following a successful counterclaim by the defendant. The High Court found the plaintiff's patent to be invalid, revoking it on the grounds of lack of novelty and inventive step.
Spain
Barcelona appeal court rules on lack of inventive step
06/09/2010 The Barcelona Court of Appeal has rejected the appeal filed by Ferring BV against a first instance decision rejecting its claim against Kern Pharma SL for alleged patent infringement. Ferring had sued Kern for alleged infringement of two patents through the manufacture and export of desmopressin tablets. In response, Kern argued that Ferring's patents were invalid due to a lack of inventive step.
Impact of Criminal Code amendments on IP rights
31/08/2010 Act 5/2010, which modifies the Criminal Code, was recently published in the Official Bulletin. This update analyses an amendment made by the act to the Criminal Code which is directly related to the criminal enforcement of industrial and IP rights. The amendment changes the retail distribution of products that infringe industrial or IP rights into a minor penalty.
Appeal court rejects injunction for alleged patent infringement
19/07/2010 The Barcelona Court of Appeal has confirmed a March 2009 decision of the Barcelona Commercial Court in which it rejected a preliminary injunction petition by Sanofi Aventis Societé Anonymé, Sanofi Aventis SA and Bristol-Myers Squibb SA against various pharmaceutical laboratories for alleged infringement of a patent related to irbesartan.
Taiwan
Courts divided over sale of defective goods
31/08/2010 Trademark owners usually arrange for their licensed manufacturers to destroy defective goods in order to control the quality of their merchandise and protect their reputation. However, it is not uncommon for such goods to make their way onto the marketplace. The courts have been divided over the issue of whether the sale of such defective merchandise violates the Trademark Act.
Legislative Yuan considers sweeping changes to Patent Act
09/08/2010 The Taiwan Intellectual Property Office has identified areas to be considered for amendments to the Patent Act. The proposals aim to enhance Taiwan's economic and industrial competitiveness, raise the quality of the patent examination process and promote the development of biotechnology, green technology and advanced agriculture.
United Kingdom
Competition law arguments and unlawful parallel trade: worthy of a defence?
06/09/2010 A number of traders importing products from outside the European Economic Area without the rights holders' consent have raised competition law defences in response to trademark infringement actions, arguing that the claimants are acting anti-competitively in enforcing their rights. A recent Court of Appeal decision suggests that such defences may require fuller consideration, potentially by the European Court of Justice.
Infringement and implied threats: consider the context
23/08/2010 Rights holders seeking to assert their IP rights should be aware of the threats provisions in the Trademarks Act, which apply to patents, registered trademarks and registered and unregistered designs. A recent case reinforces the rule that even if a communication does not explicitly threaten infringement proceedings in the United Kigndom, a court may find that a threat is implied in context.
Counterfeit goods seizures reflect pressure on businesses
02/08/2010 Information published by the European Commission on the number of customs cases involving counterfeit goods shows that the United Kingdom faces a major problem with imported infringing products. The economic climate appears to have tempted more consumers to purchase counterfeits. The trend also raises concerns about budgetary pressure on Her Majesty's Revenue and Customs.
USA
A few problems with licences and how to avoid them
31/08/2010 In negotiating licence agreements and mediating, arbitrating or litigating disputes involving them, the same types of provision seem to cause a disproportionate amount of the trouble. This update identifies a few such provisions and presents some ideas for avoiding them, in the hope that those who learn from the mistakes of others will not have to learn from their own.
Bilski: 'machine or transformation' is not exclusive test for patentable processes
26/07/2010 In a long-awaited decision in Bilski v Kappos, the Supreme Court has held that the 'machine or transformation' test is not the exclusive test for determining whether a claimed process is eligible for patenting under Section 101 of the patent statute. The opinion effectively overrules the Federal Circuit's earlier decision.
Federal Circuit decision likely to limit patent owner liability for false marking
19/07/2010 The Federal Circuit has affirmed the Eastern District of Virginia's grant of summary judgment of no liability for false patent marking in favour of defendant Solo Cup Company in Pequignot v Solo Cup Co. The decision should help to limit exposure of patent owners to the flood of qui tam false marking lawsuits filed since last year's decision in Forest Group, Inc v Bon Tool Co.
Litigation
Australia
Role of the courts in domestic arbitration clarified
10/08/2010 The Victorian Supreme Court recently clarified the role of the courts in domestic arbitration, confirming that the courts will not exercise a supervisory jurisdiction over interlocutory orders made in a domestic arbitration. This suggests growing support for the arbitral process from the Australian judiciary.
Brazil
Court declares taxation of eminent domain strips unconstitutional
03/08/2010 Debate has been ongoing regarding the intent of Brazilian states and municipalities to charge fees for the use of 'eminent domain strips' (the spaces extending over and along public highways) by public federal service companies which have been granted concessions to carry electricity over and along such highways. However, the Supreme Court has now taken a stand against the levying of fees.
British Virgin Islands
Court rules on enforcement issues in Cukurova v Alfa
20/07/2010 After extensive litigation on preliminary issues of law, which involved hearings before the Privy Council and the English High Court, the Commercial Division of the BVI High Court has finally heard the substantive action in the long-running Alfa v Cukurova litigation. Two key legal points arose from the case for commercial lawyers in the British Virgin Islands.
Canada
Enforcement of foreign arbitral awards subject to local limitation periods
27/07/2010 The Supreme Court of Canada has handed down an important decision clarifying what, if any, limitation periods may apply to the enforcement of a foreign arbitral award in Canada. The court held that the question of whether the enforcement of an arbitration award is subject to any limitation period depends on the wording of any limitations legislation in the province in which the award is sought to be enforced.
Kovacs v TD Bank Financial Group: caught between a rock and a hard place
20/07/2010 The recent decision of the Ontario Superior Court of Justice in Kovacs v TD Bank Financial Group highlights the difficulties which can be experienced by financial institutions when faced with a preservation order which affects existing client accounts. In such circumstances, the financial institution is often called on to exercise a measure of discretion in trying to interpret the intent and/or extent of the order
Cayman Islands
Cayman Grand Court permits US depositions of future trial witnesses
17/08/2010 Where, in the course of international litigation, a party seeks to depose a future witness of fact using powers available to it under the laws of another jurisdiction or under powers of the domestic court, the question arises as to what approach the courts should take to such steps. Four recent Cayman Islands cases have considered these issues from the perspective of Cayman law.
Cyprus
Scrutinizing and supporting arbitration proceedings before Cypriot courts
20/07/2010 The Supreme Court of Cyprus recently delivered a decision reaffirming the Cypriot courts' support of the arbitration process in accordance with certain principles. The Supreme Court's decision adds clarity to the powers and obligations of arbitrators and further demonstrates that Cypriot courts will respect and support arbitration proceedings and the function of arbitrators.
Denmark
A bitter pill: pharmaceutical manufacturer prevented from distributing copycat drug
17/08/2010 A Danish enforcement court has issued an injunction against pharmaceutical manufacturer Teva, ordering it to stop distributing a generic drug containing an active ingredient which is protected by a patent. Teva had tried to exploit a potential loophole in a previous injunction and contemplated distributing its own version of the drug itself. However, the court dismissed Teva's defence without hesitation.
Egypt
Overview (August 2010)
10/08/2010 Including: Introduction; Limitation periods for bringing claims; Structure of courts that hear large commercial disputes; Rights of lawyers in commercial disputes cases; Legal fee structures; Court proceedings; Interim remedies; Final remedies; Evidence; Third-party experts; Appeals; Costs; Enforcement; Cross-border litigation.
Guatemala
Oral proceedings for a declaration of jactitation
10/08/2010 Guatemalan court procedure, like that of other Latin American countries, includes a variety of hearing procedures, which may be in written form - as in the case of plenary suits and summary proceedings - or may be conducted orally. Oral proceedings are required for a declaration of jactitation. Such a declaration forces a party making a disputed assertion to bring a claim in order to prove its right.
Hong Kong
Dangers of unreasonable failure to engage in mediation
10/08/2010 A recent decision affirms the steps already taken in the High Court Rules to promote dispute settlement. If a party to a dispute ignores mediation, it must be prepared to suffer the costs consequences. As the case illustrates, the courts are prepared to make adverse costs orders to ensure that parties engage sensibly and reasonably in the mediation process.
India
Supreme Court rules on priority of national versus state law
07/09/2010 The Supreme Court recently considered whether the sections of the Bombay Sales Tax Act and the Kerala General Sales Tax Act which create a first charge on the property of a dealer or other person liable to pay sales tax are inconsistent with the provisions of two national pieces of legislation for the recovery of debt and the enforcement of a security interest.
Compensation received for delay amounts to capital receipt under Income Tax Act
31/08/2010 The distinction between revenue and capital under the income tax law is fundamental. Ordinarily, tax is levied on income, but not on capital profits. The issue of whether a particular receipt is capital or income derived from business is frequently presented to the courts and depends on the particular facts and circumstances of each case.
Supreme Court intervenes in the appointment of an arbitrator
17/08/2010 The Supreme Court recently intervened to appoint an independent sole arbitrator in a dispute between two companies even though the contract provided for the appointment of an employee as the arbitrator. The court confirmed that if any circumstance exists to create a reasonable apprehension about the impartiality or independence of the agreed or named arbitrator, the court has the discretion not to appoint such a person.
Supreme Court clarifies arbitrator's power to act beyond the scope of a contract
10/08/2010 The Supreme Court recently issued an important decision concerning an arbitrator's authority to pass an award that is contrary to the terms of a contract executed between the parties. The case involved a dispute between two companies related to increased labourers' wages which was resolved by an arbitral tribunal, but overturned by the Supreme Court.
Supreme Court rules on acting in concert
03/08/2010 The Supreme Court has clarified when two persons can be said to be 'acting in concert' for the purpose of the Takeover Code. The court held that for two or more persons to meet the criterion, a target company on one hand and two or more persons on the other must come together with the shared objective or purpose of acquiring shares in a target.
Ireland
Modular trials in commercial court litigation
10/08/2010 The rules applicable to the High Court Commercial List permit the court to make such order as appears convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings. A recent High Court decision has clarified the basis upon which modular trials may be ordered in cases proceeding in the Commercial List.
Lithuania
Supreme Court refers competence and judicial protection issues to ECJ
20/07/2010 A regional court in Lithuania denied its competence to consider a claim related to a bankrupt German company, finding that claims against a company based in another EU member state arising out of bankruptcy must be decided by the courts of the state in which bankruptcy proceedings were initiated. The Supreme Court has now referred three related questions to the European Court of Justice.
Luxembourg
Compliance of investment tax credit with EU freedom of movement
31/08/2010 The Lower Administrative Court has referred to the European Court of Justice the question of whether Luxembourg's investment tax credit regime complies with the EU principle of free movement of services and capital. The taxpayer argued that the Luxembourg investment tax credit regime restricts the freedom to provide services in the European Union.
Court rules on tax liability of non-resident company's permanent establishment
17/08/2010 The Lower Administrative Court has issued a significant judgment on the nature of profits realised by a Luxembourg permanent establishment of a non-resident company. The authorities considered the office to be a Luxembourg permanent establishment, whose profits qualified as business profits and were subject to municipal business tax. The company in question argued that it was an association of independent professionals.
Malaysia
High Court disallows crucial evidence on grounds of late disclosure
24/08/2010 A recent High Court decision departed from the principle that 'late discovery is better than no discovery at all' when it disallowed the introduction of aerial photographs that were both "relevant" and "crucial" to both the defendants' and plaintiffs' cases on the grounds of late disclosure. The judge observed that the modern approach to litigation justifies the exclusion of such evidence on the grounds of delay alone.
Mexico
Can insurance policies be enforced through summary proceedings?
27/07/2010 Normally, an insured seeks to sue its insurer by initiating summary commercial proceedings, in which it is entitled to pre-judgment attachment of assets to secure payment. However, insurers usually contend that such claims should be heard in ordinary commercial proceedings. The Supreme Court has settled the question, establishing when a document of any kind may be considered an executory instrument.
Netherlands
Enterprise Court forces majority shareholder to dilute
17/08/2010 Recently the Enterprise Court forced a way out of a deadlock between shareholders of a company that was facing bankruptcy. Its decision cleared the way for a rescue plan of the company that a 60% majority shareholder had blocked. The shareholder had good reason to do so: the rescue plan would dilute its 60% stake in the company to just under 12%.
No consultation right for shareholders on strategy
10/08/2010 The Dutch Supreme Court recently quashed a ruling of the Enterprise Chamber of the Amsterdam Court of Appeal which had ordered an inquiry into possible mismanagement and the affairs of ASM International NV. The Supreme Court has referred the matter back to the Enterprise Chamber to consider whether, on the basis of the Supreme Court ruling, there are still sufficient grounds to order an inquiry.
New Zealand
Judicial challenge to inquiry into conduct of Supreme Court judge
07/09/2010 A judge of the Supreme Court, New Zealand's highest court, has brought a legal challenge to an inquiry into his conduct. Among other things, the inquiry arises from allegations about the way in which he disclosed a business relationship with counsel for one of the parties to a case that he heard when he was a judge of the Court of Appeal.
Use of evidence of prior negotiations in contract interpretation
17/08/2010 The Supreme Court recently considered the use of evidence of prior negotiations in contract interpretation. It was the court's first opportunity to consider the issue in detail since the House of Lords decision in Chartbrook Ltd v Persimmon Homes Ltd. Overall, the case seems to signal an increasingly liberal approach to reference to negotiations.
Statutory interpretation in light of social change
20/07/2010 The High Court was recently required to construe the word 'spouses' in the context of the Adoption Act 1955. The case illustrates the complexities involved in resolving the tensions in the statutory construction of a 35-year-old piece of social legislation in light of the Bill of Rights Act and a pattern of subsequent Parliamentary inaction in respect of the provision in question.
Nigeria
Bringing a derivative action
07/09/2010 A derivative action, also known as a shareholder derivative suit, is a lawsuit brought by a shareholder on behalf of a company against a third party who is often an insider of the corporation. Derivative actions are an exception to the rule set out in Foss v Harbottle, which prevents a shareholder from bringing an action on behalf of a company where there has been an alleged wrong done to the company.
Philippines
Supreme Court rules on arbitration referral
31/08/2010 The Second Division of the Supreme Court recently held that it was unnecessary to refer two parties to a production and purchase agreement to arbitration because third parties were involved, notwithstanding a clause in the agreement which provided that all disputes should be settled by arbitration.
Russia
Supreme Arbitrazh Court clarifies nature of buy-out payment in lease agreement
03/08/2010 The Supreme Arbitrazh Court has clarified the legal nature of a buy-out payment in a lease agreement. The decision stipulates that title in a leased item is transferred to the lessee on the expiry of the lease. It also confirms the procedure for determining the relevant amount where the parties to the lease agreement have not established the buy-out value.
Supreme Arbitrazh Court changes course on VAT invoices
20/07/2010 The Supreme Arbitrazh Court has issued a long-awaited resolution on the lawfulness of deducting value added tax (VAT) on VAT invoices containing inaccurate data and signed by unauthorized persons. The decision differs radically from its 2008 position in ZAO Kestroy-1. Corporate taxpayers should take care in their contractual dealings to demonstrate that they are not complicit with bad-faith suppliers.
Switzerland
Supreme Court rules on administration of evidence and the right to be heard
03/08/2010 Two recent Supreme Court decisions highlight important procedural issues related to the administration of evidence and the right to be heard. As a rule, the party willing to provide new evidence to the Court of Arbitration for Sport proceedings must inform the the court panel of its intentions as soon as possible. If the evidence is yet to become readily available, parties can apply to suspend the proceedings.
Ukraine
New legislation addresses recognition and enforcement of foreign judgments
20/07/2010 The Law on Amending Certain Legislative Acts in respect of Regulating Private International Law Issues has introduced long-awaited amendments to the rules governing the recognition and enforcement of foreign judgments. Among other things, it provides instructions on determining reciprocity and extends the range of persons who can apply for recognition and enforcement of foreign judgments.
United Arab Emirates
Non-payment of a single commercial debt can be a basis for bankruptcy declaration
20/07/2010 In an unequivocal decision reinforcing the legal grounds for declaration of bankruptcy, the Dubai Supreme Court ruled that a trader's suspension of payment of a single commercial debt is sufficient to declare its bankruptcy, provided that the non-payment indicates the instability of the trader's financial position and the fragility of its creditworthiness.
United Kingdom
Practice direction introduces new regime for e-disclosure
07/09/2010 Significant changes are being made to the way in which parties to litigation conduct electronic disclosure, known as 'e-disclosure'. Among other things, in-house lawyers and managers of corporate litigation must ensure that they understand what data their company retains, how it is backed up and when it is deleted.
Dangers of relying on after-the-event insurance
31/08/2010 A recent case serves as a warning to defendants in civil litigation that a claimant's after-the-event insurance is sometimes no substitute for security for costs. Moreover, it is when a defendant is most deserving of having its costs paid - because a claimant has knowingly pursued a fraudulent claim - that after-the-event insurance is likely to evaporate.
High Court eschews traditional analysis in latest 'battle of the forms'
24/08/2010 The High Court has again grappled with the extent to which it should find an objective agreement when, on the basis of conflicting standard terms, the parties are subjectively in conflict. In a break from the traditional analysis - in which the 'last shot' in an exchange usually determines the applicable terms and conditions - the court found that neither party's terms and conditions were incorporated.
Overview (August 2010)
17/08/2010 Including: Courts; Commencing litigation; Court process; Appeals.
Court of Appeal allows restraining order against non-resident non-party
10/08/2010 In Kuwait Airways Corporation v Iraq Airways Co the Court of Appeal ventured into uncharted territory. It allowed a 'without notice' appeal by Kuwait Airways Corporation and permitted the implementation of ancillary restraining orders against a non-resident non-party in order to ensure the efficacy of a worldwide freezing order and associated disclosure orders against Iraq Airways Co and its director general.
Freezing orders and fortification of cross-undertakings
03/08/2010 A recent case confirms that the overriding consideration in applying for fortification of cross-undertakings is the balance of justice. Where a defendant is at risk of significant harm if a freezing order proves to have been wrongly granted, it is material to enquire whether the claimant would suffer corresponding harm if a fortification is ordered, and to consider which course is least likely to lead to an ultimate injustice.
Media & Entertainment
Brazil
ANATEL authorizes entry of new operators into cable television market
15/07/2010 The National Telecommunications Agency has decided to suspend the limitation on the number of cable television and multichannel multipoint distribution service grants. In practice, there are no longer any regulatory restrictions on the entry of new players into the market, which will also permit the supply of cable television by telecommunications service providers.
Denmark
New Supreme Court judgment strengthens copyright protection of artists' works
15/07/2010 The handing over of paintings for scrapping is not an assignment of ownership or copyright in the works. A new Supreme Court judgment establishes that such abandonment does not imply a right to sell the paintings. This judgment strengthens the protection of artists' works and illustrates a central element of copyright - namely, the scope of the protection of such works.
France
Reform of sports agent's status
12/08/2010 The French Sports Code, which regulates the profession of sports agents and coaches, was recently passed. It defines the activity of a sports agent and discusses some significant themes, such as the protection of athletes under 16 years of age, the control of agents and foreign nationals practising in France.
Germany
VAT on co-production contributions
15/07/2010 The tax authorities are increasingly taking the position that financial contributions by co-producers in film productions are subject to value added tax (VAT) at a rate of 7%, where these co-productions are undisclosed partnerships. Companies would thus be well advised to consider VAT on such financial co-production contributions when calculating film budgets.
Sweden
ECJ comments on gambling legislation's compliance with EU law
26/08/2010 In a preliminary ruling the European Court of Justice (ECJ) held that EU law is not an obstacle for the prohibition in Swedish law of the promotion of gambling organised by private operators in other member states. However, the ECJ also held that the sanctions for the promotion of foreign operators cannot be stricter than those for the promotion national operators that are operating without a licence.
USA
North Carolina creates new tax incentive for digital media companies
19/08/2010 North Carolina Governor Beverly Purdue has signed into law legislation that creates a new and innovative tax credit for companies developing interactive digital media. The education partnership component of the North Carolina incentive creates a unique opportunity for digital companies to undertake joint ventures with non-profit universities that may even qualify for additional state or federal tax credit programmes.
Court awards YouTube summary judgment in Viacom copyright infringement case
15/07/2010 In the billion-dollar case brought by Viacom against YouTube and Google, the US District Court for the Southern District of New York has ruled in favour of Google and YouTube on a summary judgment motion. The court held that YouTube was protected against claims of copyright infringement by the safe harbour provisions of the Digital Millennium Copyright Act.
Offshore Services
Bermuda
Ensuring that a company meeting is properly conducted
05/08/2010 A general meeting is under the control of the chairman, who must concentrate on the punctilious conduct of the meeting. The company bylaws usually provide for the appointment of a chairman. Generally, the chairman of the board of directors will act as chairman of the general meeting. If that person is absent, another director nominated by the board will normally assume the position.
British Virgin Islands
Public Funds Code: summary of provisions
29/07/2010 The BVI Financial Services Commission recently concluded public consultation on the draft Public Funds Code 2010. The code is intended to attune the BVI regulatory and supervisory environment to the new standards called for by the likes of the G20, the International Monetary Fund and the International Organization of Securities Commissions.
Court rules on enforcement issues in Cukurova v Alfa
15/07/2010 After extensive litigation on preliminary issues of law, which involved hearings before the Privy Council and the English High Court, the Commercial Division of the BVI High Court has finally heard the substantive action in the long-running Alfa v Cukurova litigation. Two key legal points arose from the case for commercial lawyers in the British Virgin Islands.
Cayman Islands
Cayman Grand Court permits US depositions of future trial witnesses
19/08/2010 Where, in the course of international litigation, a party seeks to depose a future witness of fact using powers available to it under the laws of another jurisdiction or under powers of the domestic court, the question arises as to what approach the courts should take to such steps. Four recent Cayman Islands cases have considered these issues from the perspective of Cayman law.
Grand Court rules on loss of substratum
15/07/2010 A recent Grand Court decision provides useful guidance regarding 'loss of substratum', one of the bases which justifies a winding-up on just and equitable grounds. The case demonstrates that the Cayman courts are willing to take a commercial view in relation to substratum arguments in appropriate cases in order to assist investors in Cayman companies.
Isle of Man
Tribunal reviews effect of payment in lieu of notice
26/08/2010 A case raising the question of the effect on the termination date of a payment in lieu of notice was recently decided by the Isle of Man Employment Tribunal. The tribunal had to look at the real intention behind a payment in lieu of notice and whether in the circumstances of the particular case it had the effect of prolonging the period of employment to enable the one-year statutory threshold to be reached.
Jersey
Offshore trusts: why Jersey is an attractive option
02/09/2010 A trust is a legally binding arrangement whereby a person (a settlor) transfers assets to another person (a trustee) who is entrusted with legal title to the trust assets, not for his or her own benefit, but for the benefit of other persons (beneficiaries, who may include the settlor) or for a specified purpose. This update looks at the ins and outs of offshore trusts and why Jersey makes for an attractive choice of domicile when setting up a trust.
The CRC scheme: potential impact on Jersey trustees
12/08/2010 The Carbon Reduction Commitment Energy Efficiency Scheme is a new mandatory climate change and energy-saving scheme aimed at improving energy efficiency and cutting carbon dioxide emissions in the United Kingdom. A particular interest surrounds the impact of the scheme on Jersey trusts where the trustees hold UK property directly.
Cunningham v Cunningham: court provides solution to trust issue
05/08/2010 The A Cunningham No 2 Settlement Trust was established in 1991 with two brothers (the plaintiff and his brother) in the class of beneficiaries who subsequently entered into a dispute with one another as to certain transactions relating to the trust. This unusual case surrounding fairly unique facts provides another example of the Royal Court's willingness to help trustees find a solution to seemingly intractable problems.
Tax agreement with France introduces real estate tax exemption
29/07/2010 Jersey's tax information exchange agreement with France is expected to enter into force shortly. One of the key benefits of the agreement is that Jersey investment funds and real estate holding structures will qualify for exemption from the French 3% real estate tax that is assessed annually on the fair market value of real property in France.
Mauritius
Dawning of a new era in employment law
05/08/2010 A year after its proclamation, legislation governing employment relationships in Mauritius has marked the beginning of a new era in employment law. The Employment Rights Act 2008 has consolidated the old law and the principles underpinning the employment contract. Furthermore, it has endorsed concepts that are now regarded as fundamental to most employment law regimes.
Product Liability
Canada
Exemption regulations under proposed Canada Consumer Product Safety Act
19/08/2010 Health Canada recently announced that it will conduct a consultation regarding proposed exemption regulations pursuant to the proposed Canada Consumer Product Safety Act. The proposed exemption regulations would exempt certain classes of consumer product from compliance with specified provisions of the proposed act or other regulations made pursuant to the act.
United Kingdom
Court blocks substitution of parent manufacturer after expiry of limitation period
12/08/2010 The Supreme Court decision in OB v Aventis Pasteur SA underlines the importance for consumers of identifying the correct defendant before issuing proceedings. Claimants are now more likely to issue proceedings against all possible defendants to prevent claims from being time barred. However, the case provides producers with greater certainty and prevents indefinite exposure to defective product claims.
Projects & Procurement
Estonia
Euro information campaign reveals shortcomings in public procurement reform
27/07/2010 Several amendments to the Public Procurement Law recently came into force. Most of them resulted from the implementation of the Remedies Directive into national law. Independently, the locus of supervisory powers was moved so that, as of July 1, the independent Public Procurement Agency ceased to exist. Rather, supervisory tasks are now carried out by a public procurement unit within the Ministry of Finance.
Switzerland
AlpTransit Gotthard SA builds world's longest railway tunnel
27/07/2010 The Gotthard Base Tunnel is part of the Sfr20 billion AlpTransit project to build a new rail link through the Alps, with the objective of creating a direct and level route for high-speed passenger and freight trains. The Gotthard tunnel project was one of the first in Switzerland where foreign contractors were admitted to bid, and they were actually awarded many of the lots.
Ukraine
New public procurement legislation in force
03/08/2010 Parliament has passed the Law on Public Procurement, which sets out the legal and economic basis for the public procurement of goods, works and services. The law applies to procurement that is either fully or partly at the state's expense, provided that the total value of the procurement is no less than UAH100,000 for goods and services or UAH300,000 for works.
Shipping & Transport
Brazil
Shipping company released from confiscation penalty on chartered foreign vessel
18/08/2010 A Brazilian shipping company chartered a foreign flag vessel to assist with the carriage of bunker both in cabotage and at the port for supply to vessels. The company assumed that the automatic temporary admission special customs regime would apply, resulting in a total suspension of taxes under the terms of Article 5(VI) of the Internal Revenue Service Normative Instruction 285/03. However, the Federal Revenue disagreed.
Camex works towards compliance with international conventions
04/08/2010 The Foreign Trade Chamber (Camex) is mobilising its team of technicians to guarantee Brazil's compliance with international transport and trade conventions. Among the main targets are the Istanbul, Kyoto and Rotterdam Conventions. Camex's main objective is to provide more worldwide exposure for Brazilian international trade. Accession to the conventions should reduce bureaucracy in commercial dealings with other countries.
ANTAQ enacts new rule regarding private use port terminals
28/07/2010 The National Maritime Administration Agency (ANTAQ) has approved Resolution 1.660, which replaces Resolution 517/2005 and grants authorization for the construction, exploration and expansion of private use port terminals. Parties interested in building or exploring a private use port terminal must submit a request to ANTAQ, which must be accompanied by a summary of the venture's characteristics.
Canada
Recovery of healthcare costs for maritime personal injuries in British Columbia
18/08/2010 In British Columbia, tort feasors liable for personal injuries suffered in a marine context are now also subject to claims by the provincial government for the recovery of healthcare costs expended (past and future) by the Ministry of Health relating to the injury pursuant to the Health Care Costs Recovery Act. The British Columbia Supreme Court recently determined an important point on when the act applies retrospectively.
China
Proving the existence of a freight forwarding contract
25/08/2010 Before accepting the shipping commission from cargo owners, freight forwarding companies should conclude written commission contracts or ask the owners for written freight forwarding orders before each business operation. If this is impossible, it is vital to preserve a full set of the relevant documents, including freight invoices, packing lists and declarations.
Cyprus
Adoption of new international codes on marine accident investigation
18/08/2010 The Cyprus Department of Merchant Shipping has announced changes to the legislative framework for investigating marine accidents. The International Codes on Marine Accident Investigation Decision of 2010, issued under Section 4 of the Convention on the International Maritime Organisation (Ratification) and for Matters Connected Therewith Laws 1973 to 1996, approves two International Maritime Organisation codes.
European Union
New Liner Consortia Block Exemption Regulation comes into force
11/08/2010 The new EU Liner Consortia Block Exemption Regulation recently came into force. This regulation applies to consortia only in respect of international liner shipping services to or from one or more EU ports. Provided that no hardcore restrictions exist, and that the conditions stipulated are satisfied, the regulation provides certain exemptions.
New regulation governing seaborne passengers' rights in Europe
04/08/2010 The European Parliament has voted in favour of a new regulation covering the rights of passengers travelling by sea and inland waterways in Europe. Once the new regulation enters into force, it could have a significant impact on the liability of waterborne passenger service operators, since passengers will enjoy similar compensation rights to those travelling by other modes of transport.
Germany
Federal Labour Court discovers Greek territory between Germany and Finland
18/08/2010 The Federal Labour Court has held that a seafarer habitually carries out his or her work in the state whose flag is flown by the vessel on which he or she works. Although the court may have been correct that the German courts lacked jurisdiction, the reasoning of the court is unconvincing, and future decisions in this area are awaited with some suspense.
Hong Kong
Crown immunity for Chinese state agencies: industry concerns over decision
18/08/2010 The key to Hong Kong's future as a chosen jurisdiction for resolving shipping disputes is its proximity and links to China. Hong Kong benefits as a jurisdiction because it is respected by both Chinese and foreign parties for its mature administration and trusted legal system. However, a recent admiralty case involving issues of crown immunity raise serious concerns.
Philippines
Court denies disabled seafarer benefits for failure to meet reporting requirement
08/09/2010 The Supreme Court has denied a seafarer disability benefits on the grounds that the seafarer had failed to submit to post-employment medical examination within three working days of his return. This is the fifth decision of the court to uphold the three-working-day reporting requirement.
Impact of amended Migrant Workers Act on seafarers
01/09/2010 The amended Migrant Workers Act became law earlier this year and the implementing rules and regulations are expected to be passed imminently. The broad scope of the act is troubling the international maritime sector with regards to the employment of Filipino seafarers. It has fallen to legal experts to try to find ways to implement the rules in order to distinguish between seafarers and other migrant workers.
Supreme Court rules on compensability of seaman's colon cancer
04/08/2010 The Supreme Court recently ruled on a case in which a seaman claimed compensation from the vessel interests after he had been repatriated due to his suffering from colon cancer. The court ruled in favour of the seaman, stating that in order to establish the compensability of a non-occupational disease, reasonable proof of a work connection (rather than a direct causal relationship) was required.
Singapore
Court of Appeal clarifies innocent charterer's duty to mitigate
08/09/2010 The Court of Appeal's recent decision in The Asia Star is significant to the shipping industry, as the courts have now made clear that it is important for a charterer to consult a defaulting owner on the measures that the former intends to take in order to mitigate the damage caused by the latter's contractual breach.
USA
Court considers application of Carmack amendment to overseas shipments
28/07/2010 The Supreme Court recently held that the Carmack amendment does not apply to a shipment originating overseas under a single through bill of lading. Under Kawasaki, a carrier which receives goods overseas and issues a single through bill of lading to include inland carriage governed by the Carriage of Goods by Sea Act is not considered to be a receiving rail carrier under the Carmack amendment.
Telecommunications
Brazil
New commission to review telecommunications regulatory framework
18/08/2010 An executive order was recently published with the objective of creating an inter-ministerial commission that will study the review of the regulatory framework for the organisation and exploitation of telecommunications and broadcasting services. The commission's main objective is to review the prevailing legislation considering the technological convergence process.
Germany
WLAN internet access provision and registration obligations
18/08/2010 Although many businesses which offer internet access to their customers through wireless local area network devices may not have considered whether they are obliged to register this service with an official regulatory authority, recent practice in Germany suggests that a more thorough approach in this regard is required, given that ignorance of the associated legal requirements can result in fines.
Greece
Incumbent's breach of telecommunications law and abuse of dominance confirmed
11/08/2010 In response to an annulment action brought by Greek incumbent OTE SA, the Administrative Court of Appeals of Athens has upheld a National Telecommunications and Post Commission decision fining OTE €1 million for infringement of the electronic communications legislation and €8 million for abuse of its dominant position. However, based on the principle of proportionality, the court reduced the fines to €5.7 million.
India
Tariff structure for Short Message Service
01/09/2010 Short Message Service (SMS) is one of the most widely subscribed-to services provided by telecommunications service providers. The Telecom Regulatory Authority of India has described SMS as enabling "mobile subscribers to exchange text messages". This update looks at the legal regime in India with respect to the fixing of tariff charges for SMS.
Italy
Regulator lifts ex ante rules on Telecom Italia
25/08/2010 Telecom Italia will soon be free from ex ante rules in the retail segment of the Italian local and national markets for residential and non-residential fixed telephone services. Nonetheless, the Communications Authority will continue to monitor the markets in question in order to ensure the necessary level of competition, paying particular attention to service offer replicability.
Nigeria
Dealing with competition issues in the telecommunications sector
18/08/2010 The Nigerian Communications Commission (NCC) recently published its Determination on Dominance In Selected Communications Markets in Nigeria. The NCC held that the telecommunications regulatory framework provides specific remedies to address substantiated cases of anti-competitive conduct and, in most cases, these remedies can be implemented without a finding of dominance.
Switzerland
Revision of Lawful Interception Act proposed
08/09/2010 The government is considering a revision of the Lawful Interception Act and its corresponding ordinance. Among other things, the draft act requires that telecommunications and internet providers assist the competent authority in the surveillance of communications traffic by obliging them to provide the authorities with historical communications data as well as real-time communications data and content.
Taiwan
Taiwan to implement digital convergence policy
08/09/2010 The Executive Yuan has announced the Digital Convergence Development Policy in order to initiate a two-stage legislative overhaul and develop digital convergence industries. The government plans to relax the restrictions on cross-ownership of telecommunications, broadcasting and internet-based businesses.
Major telecommunications companies embrace fixed-mobile convergence
01/09/2010 In a move that has come as no surprise to the market, Taiwan's third-largest telecommunications company, Far EasTone Telecommunications Co, has announced that its board has approved a public tender offer for shares of its fixed-line subsidiary, New Century InfoComm Tech Co. Far EasTone thus becomes the third operator providing fixed-mobile convergence services.
Government to review 4G policy as Intel dissolves WiMAX taskforce
18/08/2010 According to an official, following Intel's unexpected move to dissolve its taskforce on worldwide interoperability for microwave access (WiMAX) technology, the government plans to review its national fourth-generation (4G) wireless policy. Although Taiwan is one of the strongest supporters of WiMAX technology, equipment makers and operators are concerned about the rise of Long-Term Evolution technology – its 4G rival.
Trade & Customs
Brazil
Anti-dumping investigations initiated against US chemical industry
20/08/2010 Two anti-dumping investigations were recently initiated in Brazil concerning imports originating from the United States. These investigations reveal a growing interest in protectionism of the chemical industry, particularly in relation to the US industry. It is important that countries and companies interested in the opening of trade and the maintenance of their markets seek to participate in these investigations.
China
Pepsi charged with tax evasion and smuggling
27/08/2010 PepsiCo (China) Limited recently stood trial at the Guangzhou Intermediate People's Court on charges of smuggling goods. Two company officers also faced charges as persons responsible for smuggling offences. The customs authorities alleged that the company evaded duties and import value-added tax totalling Rmb1.11 million.
Economic cooperation framework agreement signals closer trade link with Taiwan
20/08/2010 China and Taiwan have concluded a long-awaited economic cooperation framework agreement. It introduces an 'early harvest' of trade concessions, which will become effective within six months of its entry into force, and is expected to pave the way for a free trade agreement. The optimum allocation of resources on both sides of the Taiwan Strait could prove a key factor in the long-term success of an investment in the Chinese market.
European Union
New regulations on tariff suspensions encourage EU imports
06/08/2010 Two new EU regulations have been published in the Official Journal which amend the list of products to which the European Union's autonomous tariff quotas apply. The regulations are particularly relevant to third-country exporters since they are likely to encourage trade and create opportunities for the marketing of several types of product within the European Union.
Mexico
Electronic device standards and retaliation against United States head trade agenda
03/09/2010 Ongoing US non-compliance with transportation obligations under the North American Free Trade Agreement (NAFTA) has prompted the Mexican government to reinforce the suspension of tariff preferences and amend the product list. In addition, changes have been made to the mechanism for accepting the equivalence of another state's technical evaluation procedures under NAFTA in respect of electronic devices.
Preliminary determinations for Chinese and US steel imports head trade changes
16/07/2010 Two preliminary determinations on anti-dumping measures for steel products will affect imports from China and the United States. In addition, a resolution has amended the classification and codification of animal or vegetable products which are subject to import regulations, while a re-edition of the foreign trade rules will make them easier to use.
USA
Government enacts further sanctions against Iran
30/07/2010 President Obama has signed into law the Comprehensive Iran Sanctions, Accountability and Divestment Act. As the United States already maintains a nearly comprehensive embargo of Iran, this act largely targets the activities of non-US companies doing business in Iran, particularly in the petroleum sector. However, even US companies may be affected by the act's wide-ranging provisions.
BIS liberalises export controls for encryption items
23/07/2010 The Commerce Department's Bureau of Industry and Security has published an interim final rule implementing major changes to the US export controls applicable to encryption items. The changes, effective immediately, simplify the regulation of encryption software, technology and hardware, and should substantially reduce the administrative burden associated with the export and re-export of such items.
White Collar Crime
Italy
Courts rule on criminal liability of non-executive directors
19/07/2010 Over the past few years the Italian courts have significantly changed their view of the principles on which non-executive directors can be convicted of corporate crimes and bankruptcy offences. The issue was analyzed in Bipop-Carire Bank and Parmalat, two cases arising from financial scandals that had far-reaching repercussions abroad.
United Kingdom
Ministry of Justice postpones Bribery Act implementation
02/08/2010 The Ministry of Justice has announced that implementation of the Bribery Act will be delayed until April 2011. The main reason for the delay appears to be the commitment given at the parliamentary stage that statutory guidance on adequate anti-bribery procedures would be published before implementation. Many companies will be relieved at the delay, but the timetable for compliance is still tight.
USA
Foreign Corrupt Practices Act pharmaceutical investigation expands
31/08/2010 Enforcement of the Foreign Corrupt Practices Act has increased significantly over the past several years. Against this backdrop of increased enforcement, the Department of Justice is investigating the pharmaceutical and medical device industries for suspected violations of the act.
DOJ issues guidance on government-compelled grants
16/08/2010 The US Department of Justice's Foreign Corrupt Practices Act opinion procedure release process allows companies and individuals to request guidance as to whether prospective conduct would violate the act. Its second such opinion issued this year emphasises the importance of due diligence when a government requires a company to provide a benefit to a specific entity of the government's choosing.
Dodd-Frank: impact on Foreign Corrupt Practices Act enforcement and compliance
09/08/2010 The recent passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act by the House of Representatives and the Senate sends a clear signal that change is coming to Wall Street. Less apparent, however, are the significant implications that the act will have on multinational companies' efforts to comply with the Foreign Corrupt Practices Act, particularly in the energy and mining industries.
French issuer pays $338 million in fines and disgorgement for act violations
26/07/2010 The Department of Justice has announced that Technip SA has entered into a deferred prosecution agreement and will pay a $240 million criminal penalty to resolve charges that the company violated the Foreign Corrupt Practices Act. In addition, Technip has agreed to disgorge an additional $98 million in ill-gotten gains to the Securities and Exchange Commission.
