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Arbitration

Overview
Including: Legislative Framework; Courts' Attitude to Arbitration; Domestic Arbitration; International Arbitration

The Law Reform Commission has issued its Report on Alternative Dispute Resolution, specifically focusing on mediation and conciliation. It remains to be seen how many of the report's recommendations will be adopted, although it is likely that many – if not all – will eventually find their way onto the statute books in some form, particularly since a draft Mediation and Conciliation Bill is annexed to the report.

The High Court recently stressed that there are strong public policy considerations in favour of enforcing arbitration awards and that this is no less so in the case of New York Convention awards. However, this leaning in favour of enforcement must not stand in the way of refusal where this is required as matter of public policy.

The Irish courts have traditionally been very reluctant to interfere with the arbitration process. The recent decision in GLC Construction Limited v County Council of the County of Laois is an example of a case where the court felt justified in referring an arbitrator's award back to the arbitrator for reconsideration following an application by the plaintiff to the High Court for such an order.

In a recent case the court considered the issues to which it should have regard in assessing whether to interfere with an arbitral award. The award was upheld as no mistake of law appeared on the face of the award, the arbitrator had conducted himself correctly within the terms of his appointment, and any perceived bias should have been asserted during the course of the arbitration.

A recent decision suggests that it is not only parties to an arbitration agreement who will be bound to adhere to it; so too will those who have agreed to a defined mechanism of alternative dispute resolution. This is in line with the tradition of the Irish courts in supporting arbitration and not interfering with the arbitration process except where this is necessary.

The domestic Arbitration Act obliges a court to stay court proceedings initiated by any party to an arbitration agreement, unless it is satisfied that the agreement is null and void. The act has since been amended to state that this provision does not prevent any party to an arbitration agreement from bringing civil proceedings under the small claims procedure of the district court.

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Banking

A High Court challenge to the acquisition by Ireland's 'bad bank', the National Asset Management Agency, of unimpaired loans of a participating bank has been rejected. The court referred to the need for the state to maintain the stability of the financial system while the state-backed deposit guarantee scheme is in existence.

The government has published the details of its bank guarantee scheme. Announced on September 30 2008, emergency legislation was subsequently passed within 48 hours to allow the minister for finance to provide guarantees of both the deposits and certain borrowings of certain domestic banks and building societies.

The Markets in Financial Instruments and Miscellaneous Provisions Act 2007 has been enacted. It contains an extended definition of 'financial contracts' having the benefit of certainty of set-off under Irish legislation, notwithstanding insolvency. Late amendments made to the act before it was passed provide for regulation by the Financial Services Regulatory Authority of non-bank lenders to Irish consumers.

The Irish Bankers Federation and the Consumers Association of Ireland have called on the government to review the imposition by retailers and service providers of surcharges on consumer payments made using credit or debit cards. Both organizations contend that surcharging should be very strictly monitored and controlled, if not completely abolished.

In the context of a general review of the regulatory regime, a new Consumer Protection Code is in the process of being finalized. The new code, which will adhere to the concept of a principles-based regulator, will apply to financial services providers regulated by the Irish Financial Services Regulatory Authority insofar as they are providing services to 'private customers'.

New regulations have extended the scope of the term 'consumer' to improve access to the complaints procedure provided by the financial services ombudsman. Unincorporated bodies and any incorporated body which has an annual turnover of €3 million or less (provided that it is not a member of a group of companies having a combined turnover greater than €3 million) will now have access to the scheme.

Capital Markets

The Capital Requirements Directives (2006/48/EC and 2006/49/EC combined) have been transposed into Irish law by the EC (Capital Adequacy of Investment Firms) Regulations 2006 and the EC (Capital Adequacy of Credit Institutions) Regulations 2006. Some of the key implications of the directives for firms are listed in this update.

The Irish Stock Exchange has published two new policy notes which introduce a number of important new provisions in relation to financial information to be included in listing particulars. These changes should greatly improve the listing process for many investment funds, reducing delays and eliminating the costs of preparing audits specifically for listing purposes.

The new authorization process for Irish domiciled qualifying investor funds is now in place. A fund can now be authorized in one day, provided that all relevant parties to it (the promoter, directors and service providers) are approved (ie, have the appropriate authorizations/approvals from the Financial Services Regulatory Authority) and that the fund itself reflects the agreed parameters.

The Markets in Financial Instruments Directive and its 'Level 2' implementing directive have now been implemented in Ireland by the European Communities (Markets in Financial Instruments) Regulations 2007. The regulations will take effect from November 1 2007.

Following extensive engagement between the Irish Financial Regulatory Authority and the Dutch securities regulator, it has been confirmed that the minister for finance in the Netherlands has designated Ireland as a 'state of equal supervision standard' under the Netherlands Act on Supervision of Collective Investment Schemes.

This update considers the obligations imposed on directors and other persons to disclose certain interests or rights in shares and debentures of companies incorporated in Ireland. It focuses on the rules applicable to public companies and listed collective investment schemes.

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Commercial Property

According to recent regulations, every new dwelling and non-domestic building offered for sale or rent to any prospective purchaser or tenant must have an energy rating certificate provided by a certified building energy rating assessor and be accompanied by an advisory report.

Polluted or heavily contaminated commercial land represents an extremely high environmental law risk for a potential purchaser. The legal principle of caveat emptor (buyer beware) places this risk firmly on the purchaser. Environmental problems have proved extremely costly from a liability point of view and thus merit a high level of attention from a potential purchaser at the outset of a transaction.

In recent years the commercial lease has assumed significant proportions, with more emphasis than ever being placed on the commercial concerns affecting both landlords and tenants. One of the most critical concerns for both parties is their repair obligations in respect of the property. This update is a brief consideration of the salient issues.

'Forfeiture' literally means the deprivation of a person of his or her property as a penalty for some act or omission. This update outlines the current position in Ireland in relation to forfeiture from the perspective of both landlord and tenant, paying particular attention to the grounds for forfeiture, the enforcement of forfeiture and the reliefs available.

New regulations under the Building Control Act, which implement the EU Energy Performance of Buildings Directive, came into effect on July 1 2006. The purpose of the regulations is to ensure that buildings are now constructed or altered in such a way as guarantees their energy performance. Among other things, heat loss through the fabric of the building must be minimized and heat gains maximized.

There is no guarantee that a beneficiary under a collateral warranty will recover costs incurred in relation to an inherent defect from a warrantor. For tenants, it is preferable for the landlord to accept liability for inherent defects throughout the term of the lease. Although the landlord would be unlikely to agree to this, a compromise should be reached.

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Company & Commercial

The larger a company, the greater the number of deaths that are likely to occur should its operational systems fail or safety policies prove inadequate. However, under current legislation it is extremely difficult to identify an individual director or board member with the required degree of control over a large corporate entity to charge with corporate manslaughter.

In response to a number of comments and submissions regarding the Guidance on Compliance Statements to be prepared by certain directors under the Companies (Auditing and Accounting) Act 2003, the director of corporate enforcement has issued a Revised Guidance which he hopes will be more accessible for directors, as it contains a number of helpful new features.

The Office of the Director of Corporate of Enforcement recently published a consultation paper and draft guidance on the new obligations of Irish company directors to prepare a compliance policy and annual compliance statement. While the guidance is welcome, a degree of doubt still remains in relation to the actual practicalities of the provisions.

A major new initiative has been launched to reform, restructure and update company law in Ireland. The government has approved the drafting of a single principal Companies Bill to replace the existing Companies Code.

Ireland's business community has long agreed on the need for a court which handles commercial cases in an efficient and businesslike manner. The establishment of the Commercial Court has now made the court system considerably more business friendly, resulting in savings to businesses as a result of its specialized approach to cases and its use of modern information technology.

Competition

Overview
Including: Main Features of the Act; Restrictive Agreements, Decisions, Concerted Practices; Abuses of Dominant Positions; Remedies; Criminal Penalties; Investigation and Enforcement by the Competition Authority; The Competition Authority

All media mergers must be approved by the Competition Authority and the minister for enterprise, trade and employment. A rise in M&A activity in the telecommunications and broadcasting sectors in the last three years has resulted in the notification of a significant number of deals to the authority.

In the first merger control decision of its type since the entry into force of Ireland's new merger control regime in 2002, the Irish Competition Authority has required divestiture of certain minority shareholdings prior to approving a notified transaction.

The Irish Competition Authority has issued important new rules on the application of Irish competition law to vertical agreements. The new rules, which bring the Irish regime into line with existing EU practice, restrict the 'safety zones' within which vertical agreements are considered pro-competitive.

With the aim of increasing the number of mergers subject to pre-closing competition review, the Competition Authority has issued a notice on 'non-notifiable' mergers threatening injunctive and other court proceedings for failure to make a pre-closing merger filing. All small transactions that give rise to "prima facie competition concerns" should be so notified.

The Irish Competition Authority has launched a consultation process geared towards bringing Irish competition rules on vertical restraints into line with equivalent EU rules. Chief among the reforms proposed in the authority's consultation document is the alignment of Irish safe-harbour presumptions with comparable EU norms.

In what can only be seen as further endorsement of US-style enforcement practices, Irish policymakers have appointed a second US antitrust lawyer to the five-man board of the Competition Authority. The new member, Edward P Henneberry, will take over as director of the authority's new Merger Division in September 2003.

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Construction

The Building Control (Amendment) Regulations 2013 have been recently signed into law. The regulations introduce a substantial number of changes, including the revision of the commencement notice and the introduction of three new types of mandatory certificate. The most controversial elements have been removed. Notwithstanding the changes, the new regulations still present a challenge to the construction industry.

The Irish High Court has upheld the binding nature of a conciliator's recommendation and acknowledged the mandatory nature of conciliation as a first step in the dispute resolution process under the Royal Institute of the Architects of Ireland (RIAI) contract. The judgment is a seminal decision in Irish construction law since there is little precedent on the RIAI form of contract.

With the downturn in the economy, the construction sector has had to deal with the fall-out of key stakeholders finding themselves in real financial difficulties, which many have been unable to survive. So what are the issues that parties should be aware of when a developer or contractor goes bust? How do the standard form contracts manage such a scenario? What rights or obligations does an employer or contractor have?

The Public Works Contracts in Ireland adopt an approach which seeks to pass as much risk as possible to the contractor for checking the accuracy of all information which may be provided. Changes made in the latest version of the Public Works Contracts have reinforced this philosophy. Contractors will need to be mindful of this additional risk and will now have the additional challenge of factoring this into their pricing.

At times when money and resources are constrained, legal costs are at the forefront of clients' minds. However, there are some ways in which parties to construction and engineering contracts can reduce their potential costs exposure when dispute resolution proceedings are unavoidable. Alternative dispute resolution and early case settlement strategies should be promoted at every possible juncture.

Construction contracts commonly used in Ireland do not normally include any express reference to latent defects or state the period for which a contractor shall be liable for them. When a party suffers loss or damage arising from a latent defect to a building or structure, it may pursue damages by either suing in contract or tort, or pursuing claims under both the law of contract and negligence.

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Corporate Finance/M&A

Overview
Including: M&A Market; M&A Activity in 2004; Acquisitions; Public Company Takeovers; Merger Notifications; Transfer of Undertakings.

The EU Takeovers Directive has been transposed into Irish law by the European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006. As many of its provisions are similar to existing rules, it is unlikely to have a major impact. However, one relatively significant change concerns the squeeze-out of minority shareholders.

The last few years have seen a marked increase in M&A activity in the healthcare sector in Ireland, due to factors such as the attractiveness of Ireland as a base for the pharmaceutical industry and the government's approach towards the privatization of hospitals and care facilities. The main areas of growth are the pharmaceutical industry, healthcare staff providers and healthcare facilities.

The year 2005 saw a continuation of the growth in M&A activity which Ireland has experienced in recent years, thanks to substantial investment by Irish and overseas investors in both the public and private sectors. Although the number of transactions fell in 2005, the value of individual acquisitions and disposals rose steadily, maintaining a trend towards fewer but larger deals in key sectors.

A recent decision of the Irish Takeover Panel in relation to the purchase of shares by businessman Sean Dunne in Jurys Doyle Hotel Group plc illustrates the importance of strict compliance with the Irish takeover rules. The Takeover Panel ordered that the shareholding of Sean Dunne and DTC Construction Services Limited be reduced to ensure compliance with the rules.

A recent High Court decision will be of assistance in assessing arrangements concerning the acquisition of private companies, where questions of valuation in particular can often cause difficulty. It should reduce the incentive for a minority to frustrate a purchaser that wishes to use the Section 204 squeeze-out procedure, unless there are obvious reason to prevent use of the procedure.

The publication of Ion Equity's Tracker Survey for the fourth quarter of 2004 has confirmed the positive trend in M&A concerning Irish companies, reflecting the general resurgence in the Irish economy. Indicators for 2005 point towards a continuing trend involving high-profile transactions by private investors and a continuing interest in the attractiveness of Irish businesses.

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Corporate Tax

The High Court recently handed down its decision in Ross v WC. The case concerned a taxpayer’s claim that as a cheque given to an Irish Revenue auditor had been cashed, full and final settlement had been reached and the Revenue was precluded from seeking further information from the taxpayer’s bankers under the provisions of Section 908(5) of the Taxes Consolidation Act 1997.

To date, 2008 has been a productive year for the Irish Revenue’s tax treaty negotiation team. After a relatively barren spell in recent years, this year has so far seen the signing of three new double taxation treaties: two first-time double taxation treaties with Macedonia and Vietnam and a limited tax treaty with the Isle of Man.

Section 811 of the Taxes Consolidation Act 1997 is the general anti-avoidance rule. The Finance Act 2006 inserted Section 811A, which was an attempt on the Irish Revenue's part to obtain intelligence on tax avoidance plans in the marketplace. However, it failed and led to new amendments to Section 811 and Section 811A in the recent Finance Act 2008.

The attractiveness of Ireland as a holding company location is being recognized in the marketplace. This has now been further enhanced with the introduction of a 50% reduction in the tax rate applicable to certain foreign dividends. It is hoped that the next step will be a participation exemption that fully exempts foreign dividends from tax at the level of the shareholder.

The High Court decision in Lorraine Kinsella v The Revenue Commissioners concerns the application of the double taxation agreement between Ireland and Italy to Irish capital gains tax in the context of a scheme implemented to avoid it. The Ireland-Italy agreement was concluded in 1971 and transposed into Irish law in 1973, thus pre-dating the introduction of capital gains tax in 1975.

The High Court decision concerning an attempt by the Irish Revenue to access bank account information in the Isle of Man has recently become available. A Revenue officer sought an order from the Irish High Court directing National Irish Bank to furnish certain documentation and information from its Isle of Man branch. The bank's essential objection to this was that the Irish courts had no jurisdiction.

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Derivatives

The Irish Stock Exchange is aware of the practical difficulties current requirements pose for funds listing on the exchange and has undertaken significant industry consultation with a view to developing an alternative regime for listing funds which invest in derivative positions. Having taken legal advice, the exchange has decided to amend its rules and to introduce new rules on the custody of derivatives.

E-commerce

Overview
Including: Web Design Agreements; Contract Issues; Applicable Law; Liability Issues; Data Protection Issues; Domain Names

Implementing and enforcing a clear email and internet usage policy should protect an employer's business interests without leaving it open to subsequent allegations from employees who are disciplined as a result of misuse. A recent unfair dismissal case from the Employment Appeals highlights the importance of clarity and consistency in enforcing any policy.

If online gaming is to be offered from Ireland, the legislative framework needs to promote technological advances which will ensure top-quality products and secure facilities, as well as social responsibility and transparency. Recent parliamentary initiatives are paving the way for such a framework.

Security breaches can have severe implications in terms of a company’s liability to its customers, contacts and employees, especially when sensitive financial data is disclosed. Another concern from an Irish perspective is the risk of breach of the data protection legislation and any contract in place between the company and its internet service providers.

Regulations implementing the E-money Directive have been in force for some months now. They restrict the activities of e-money institutions to financial or non-financial services which are closely related to the administration of e-money. They also specify initial capital and ongoing funds requirements, and place e-money institutions under the supervision of the Central Bank.

Last year the Irish High Court refused jurisdiction in a defamation case between the USA Rugby Football Union and Texan web journalist Ivan Calhoun. The court considered that Ireland was not the proper place to hear the dispute. It rejected arguments that possible Irish access to an article briefly placed on a US website amounted to publication in Ireland.

The minister for enterprise, trade and employment has signed regulations which provide for the free movement of online information society services within the European Economic Area. The regulations also require the senders of unsolicited commercial emails to ensure that these are clearly identifiable as such by the recipient.

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Employment & Labour

The aim of the Safety, Health and Welfare at Work Act 2005 is to provide a framework and a set of broad general duties and organisational arrangements necessary to improve health and safety standards. However, the regulations required to give full effect to the act's provisions on alcohol and drug testing are still awaited. This update considers the policies that employers may choose to implement in this regard.

The year 2009 was slow on the legislative front. The year saw the publication of three employment-related bills: the Industrial Relations (Amendment) Bill, the Employment Agencies Regulation Bill and the Labour Services (Amendment) Bill. This update outlines the aims of each new bill.

New legislation has been introduced which significantly amends a number of areas of the Pensions Act. These measures have been primarily introduced in response to a European Court of Justice decision in relation to the state's obligations under the EU Insolvency Directive and the funding crisis in which many defined benefit pension schemes in Ireland find themselves.

The Labour Court has ruled that notified redundancies could amount to exceptional collective redundancies provided that: (i) they were implemented following a refusal by the relevant employees to accept proposed changes to their terms and conditions of employment, and (ii) the employer subsequently replaced the redundant employees with other employees on less favourable terms and conditions.

The main purpose of the Employment Agencies Regulation Bill is to strengthen the regulatory framework for the operation of employment agency services by requiring employment agencies to be licensed in Ireland. The licensing requirement applies to both Irish and foreign-based employment agencies.

In a recent decision the High Court has clarified the fate of employees who object to moving to a new employer in circumstances in which their jobs are outsourced as part of a transfer of undertakings. This issue had become a matter of particular concern for employers following a 2007 Employment Appeals Tribunal decision.

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Energy & Natural Resources

An Irish parliamentary committee has published a report on offshore oil and gas finds in Irish coastal waters, with recommendations including a substantial increase in the tax take from any future licences. The report calls for a more transparent system regarding licensing and public consultation, while also recommending regular reviews of fiscal and licensing terms.

The Commission for Electricity Regulation (CER) recently issued a important decision paper that should be reviewed by anyone that is considering a contestable build of connection works to connect its generation assets to the distribution or transmission system. In making its decision, the CER sought to balance the interests of system operators and independent power producers.

Contrary to high-profile criticism of the Irish planning system, energy projects in the 'strategic infrastructure' process have a success rate of almost 100%. The strategic infrastructure planning process is a fast-track process allows applications for certain energy developments to be made directly to the Planning Board. Although the system has its critics, the evidence is that it has delivered good results in the energy sector.

The Department for Communications, Energy and Natural Resources has published a welcome update on the status of the main public support scheme for renewable energy projects in Ireland. The proposed terms and conditions of eligibility for support under RE-FIT 2 and RE-FIT 3 have not yet been published, but the inclusion of these details on the department's website provides welcome confirmation that further support for renewable electricity generation in Ireland is at an advanced stage of planning.

The Commission for Energy Regulation recently published its final assessment on the deregulation of the domestic retail electricity market and duly removed all remaining price regulation from the retail electricity market. This deregulation decision occurred at the final stage of the commission's Roadmap to Deregulation, in which it outlined its plan to phase out the remaining price controls.

President Mary McAleese has signed the Energy (Biofuels Obligation and Miscellaneous Provisions) Act 2010 into law. The act is a significant piece of legislation as it obliges fuel suppliers in Ireland to sell a specified amount of biofuels (ie, fuels derived from sustainable sources) each year. It is hoped that this obligation will aid Ireland in reducing its carbon emissions and developing its biofuels production capacity.

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Environment

A government taskforce recently published its strategy for implementing the EU Directives on Waste Electrical and Electronic Equipment and on the Restriction of Hazardous Substances in Electrical and Electronic Equipment. The strategy has major implications for producers, importers and retailers of electrical and electronic equipment.

The Office of Environmental Enforcement was recently established as a dedicated unit within the Environmental Protection Agency. Its central aim is the more effective enforcement of environmental controls. Specific objectives include tackling non-compliance with environmental legislation and raising awareness of the importance of enforcement.

The European Convention on Human Rights could have a significant impact on environmental law and protection in Ireland. One area where it is expected to be relied on is the statutory immunities which certain public authorities - such as the Environmental Protection Agency - enjoy in the exercise of their statutory functions.

The European Commission has sent Ireland a final written warning for non-compliance with the Waste Framework Directive, in relation to arrangements for the treatment of urban waste water. If successful, the commission's action could result in a new layer of permitting in Ireland, to be applied to waste water treatment infrastructure generally and in sensitive areas.

Key elements of environmental regulation are undergoing significant change as a result of the Protection of the Environment Act 2003. The first series of commencement orders in relation to the act are now operative; they concern local authority waste management plans and development plans, and waste collection bylaws and charges.

The Protection of the Environment Act 2003 proposes wide-ranging amendments to some of Ireland's most significant pieces of environmental legislation. It shows increasing intolerance of environmental offences and non-compliance by giving regulatory authorities increased powers of inspection and direction, and introducing increased penalties, among other things.

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Franchising

A recent High Court decision highlights the necessity for both parties to a franchise agreement to adhere to its terms and to continue to abide by their respective obligations, notwithstanding that the franchisor's policy regarding the future development of the franchise network may have changed.

Healthcare & Life Sciences

The increased use in recent years of social media by doctors raises concerns around important issues such as patient confidentiality. The Irish Medical Council has not yet published specific guidelines but has stated that the guidelines set out in its Guide to Professional Conduct and Ethics for Registered Medical Practitioners include the use of social media by doctors.

The EU Falsified Medicines Directive is yet to be transposed into Irish law. However, the Irish Medicines Board has issued guidance on the registration requirements for manufacturers, importers, distributors and brokers of active substances. All entities in the supply chain should consider the impact that the new regime will have on their existing contracts and implement any necessary changes.

Ireland, in common with many other jurisdictions, has experienced a significant level of debate and controversy regarding the prices of drugs supplied under state-sponsored community drugs schemes. Recent initiatives aim to drive down the state's medicines bill, including a new medicines supply agreement which is predicted to provide €400 million in savings.

Information Technology

Overview
Including: Software; Database Rights; Hardware; Data Protection

The Data Protection (Amendment) Act 2003 became law on July 1 2003. The act strengthens the privacy rights of individuals, as it imposes stricter obligations on those who process personal information. In essence, every function that can be performed on information is covered by the definition of 'processing' under the act.

When looking for a partner to provide IT outsourcing services, the buyer must have a clear picture of its own processes and costs, and realistic expectations of the service provider. It should also engage in a tendering process which provides clarity for both parties as to what the buyer requires, and ensure it has sufficient protections and flexibility to run the process.

It is critical that outsourcing agreements can cope with change, and provide each party with robust yet flexible mechanisms enabling them to work through their evolving requirements. They should also allow the parties to disengage from one another as quickly and cleanly as possible. This update examines some of the key areas of an outsourcing arrangement which require careful 'future-proofing'.

As the surge in the number of Irish outsourcing projects continues, a rigorous approach to the drafting of technical specifications and documents is needed. These will have a crucial impact on the success or otherwise of the outsourcing negotiation process and of the outsourcing itself. Key issues to consider include the use of warranties and a quality management system.

In recent years Irish companies have shown increased interest in outsourcing business functions to third parties, particularly in the IT sector. This update explains the concept, identifies some of the legal issues and describes the key priorities for any business seeking to outsource IT services.

A recent bill allows for the creation of a new statutory body, which will assume responsibility for the development of Ireland's Digital Hub project. Among other things, the initiative involves the deployment of broadband infrastructure and the establishment of a range of business support facilities.

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Insolvency & Restructuring

A recent High Court decision allowed the application of the plaintiff to lift a stay placed on proceedings against the Irish Bank Resolution Corporation Limited which were ongoing at the time that the Irish Bank Resolution Corporation Act 2013 was enacted. It remains to be seen on what terms future applications for a lift of the statutory stay on proceedings will be granted.

The bill to overhaul personal insolvency has been passed as the Personal Insolvency Act 2012. The act provides for discharge from bankruptcy after three years subject to a possible bankruptcy payments order that payments be made from income and assets for up to a further five years. The act also takes the opportunity to legislate in respect of the treatment of pensions in bankruptcy.

The courts recently considered the issue of enforceability in Ireland of an order if made by Swiss courts in Swiss liquidation proceedings. The order would require the return of monies paid – at a disadvantage to creditors – to Irish company Flightlease which had since been liquidated in Ireland.

The function of the Office of the Director of Corporate Enforcement (ODCE) is to encourage and enforce compliance with the Companies Acts and to investigate breaches of those acts. Every liquidator of an Irish company must provide the ODCE with a Section 56 report on the conduct of the directors of the company in liquidation. An ODCE review of these reports determines whether the liquidator must bring High Court proceedings.

The High Court has held that the National Asset Management Agency (NAMA), a statutory body which has acquired eligible bank assets from participating Irish banks of systemic importance, should have afforded a borrower (the Treasury) an opportunity to be heard prior to taking a decision to enforce. The court held that NAMA had failed to consider certain relevant matters.

The Irish government has published in draft form its Personal Insolvency Bill, to which it gave a commitment under the EU/International Monetary Fund Programme of Financial Support for Ireland. The bill is to modernise the bankruptcy of individuals and to provide for non-judicial debt settlement systems. The final form of much-needed legislation for indebted individuals is awaited.

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Insurance & Reinsurance

Two recent High Court decisions have provided much-needed clarification as to the scope and operation of Section 62 of the Civil Liability Act 1961. The decisions related to applications by insurers to strike out the claim against them on the basis that no reasonable cause of action was disclosed. Both insurers were successful.

The High Court recently had its first opportunity to consider whether after-the-event insurance policies could effectively substitute security for costs. The ruling demonstrates that the courts will accept after-the-event insurance and will not award security for costs against a plaintiff that has taken out after-the-event cover, provided that policies do not contain terms by which the insurer can avoid liability to pay the defendant's costs.

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Intellectual Property

New regulations have extended the resale right to heirs for a period of 70 years after the artist's death. The purpose of the artists' resale right is to ensure that artists receive the benefit of the increasing value of their work, recognising that artists often sell their work cheaply at the beginning of their careers. It is difficult to see what, if any, major impact the extension of the rights will have on the Irish art market.

Under new proposals, the music industry is to be given the power to apply for an injunction against intermediaries whose services are used by a third party to infringe their copyright or related rights. The move follows a decision of the Commercial Court in which the judge held that he had no legislative powers to force UPC Communications Ireland Limited to implement a system to enforce disconnections over illegal downloads.

A recent Supreme Court judgment endorsed European Court of Justice principles relating to the liability of trademarks to revocation for non-use. The ruling confirmed that the Irish courts will protect the IP rights of companies that rely on 'third-level branding' to promote their products. Companies in the food industry will be relieved that they remain free to build their product profile by investing in multi-level branding and advertising.

The Finance Act 2009 introduced wide-ranging tax relief on capital expenditure incurred by companies on the acquisition of intangible assets in order to enhance Ireland's appeal as a location for the development and exploitation of intellectual property. The provisions will enable a host of companies previously not entitled to tax relief on intangible assets to avail of a tax write-off.

Karen Millen Ltd v Dunnes Stores was the first case in Ireland to be decided under the EU Community Designs Regulation, which provides for a three-year unregistered Community design right and came into force across the European Union in 2002. The unregistered Community design right is particularly relevant to the fashion industry, where a large number of designs enjoy a short market life.

Internet service provider Eircom has agreed to implement a 'three strikes and you're out' policy against illegal peer-to-peer uploaders and downloaders in order to setlle copyright infringement proceedings taken against it by four major record companies. The case reflects growing unease within the music industry over the scale and cost of illegal downloading.

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Leisure & Tourism

A solicitor should always advise a client purchasing a licensed premises of a few basic ground rules. First, the licence can lapse and must be renewed annually. An application must be made to the circuit court where the licensed area is to be extended. All necessary planning permissions must be obtained for the works or change of use to the property, and all fire safety requirements must be dealt with.

Litigation

A recent case confirmed that an application to dismiss a claim for failure to make discovery will not succeed where the discovery obligation is complied with. The case is a reminder that in making applications to strike out proceedings, the courts are slow to deprive litigants of a trial. The decision confirms that it is only in extreme cases that pleadings will be struck out arising from delayed or sequential making of discovery.

A number of recent High Court decisions considered the concept of 'no transaction' damages in cases involving professional negligence. The courts have confirmed that the correct approach in no transaction cases is to determine whether the negligent act resulted in the occurence of the transaction.

A recent High Court decision confirmed that where a party seeks to bring an application, it should deal with any related aspects in that application the first time round, rather than holding it over for another application. A party to litigation should ensure not only that matters which have been litigated are not re-litigated, but also that matters which ought properly to be brought before the court at a particular hearing are actually brought before it.

The Irish courts have 'inherent jurisdiction' at their disposal, which allows them to take certain steps with regard to the conduct of proceedings. Where procedural or substantive law has a gap in terms of giving the courts a clear power to do something, there may be a basis on which to invoke inherent jurisdiction. A recent High Court case demonstrates how it can operate effectively.

Under Irish procedure, the general rule is that costs 'follow the event' or, more simply, the winning party is generally entitled to its costs from the losing party. The High Court recently reconsidered the case law on security for costs. Although its decision sets out no new principles, it does set out a useful summary of the basic test applicable to the award of security for costs, as well as the numerous exceptions.

The Supreme Court recently issued its views on the holding of modular trials in the context of an appeal from a Commercial Court decision. This decision is important because it represents a clear statement from the Supreme Court with regard to the circumstances in which it will interfere in a case management decision.

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Media & Entertainment

The Department for Enterprise, Trade and Employment recently published the report of the Advisory Group on Media Mergers. The department has indicated that legislation to reform aspects of competition law is to be enacted in 2009, but the extent to which the Advisory Group's recommendations are to be followed remains to be seen.

The minister for finance has signed a commencement order introducing changes to Section 481 of the Finance Act 2008 regarding relief for investment in film projects. This follows the European Commission's state aid approval of the amendments during the preceding week. The effect of the change is to increase the maximum amount of Section 481 funding that a project can avail of from €35 million to €50 million.

In a recent case the Supreme Court has demonstrated that it is prepared to allow libel actions to proceed notwithstanding considerable delays in their prosecution. However, this appears to depend upon a number of factors, most notably on how the defendant has pleaded in the proceedings.

Ireland’s film and television industry has received an early Christmas present with the announcement of significant enhancements to the Section 481 relief for investment in film and television projects. The net effect of the changes is expected to be a large increase in the producer’s 'net benefit' available to each Section 481 project.

The Defamation Bill 2006 will modernize defamation law and looks certain to become law in early 2009. The media have been urging a reform of defamation law for over a decade. There is consensus that defamation law is both antiquated and unfairly pro-plaintiff. While the core principles of defamation law remain intact, the bill contains a large number of notable innovations.

Regulation of the printed press in Ireland has an uneven history. For many years, there has been a consensus that regulation is desirable, but much less consensus on the form that regulation should take. Proposals for a government-appointed Press Council met with hostility from the industry, which had established a Press Industry Steering Committee in 2003 to “agree a model for self-regulation”.

Product Liability

The Irish High Court has rejected jurisdiction in a claim brought by an Irish citizen against the German retailer of an allegedly defective product. The case demonstrates how product liability complaints may be successfully defended on procedural and jurisdictional grounds.

Following the implementation of the EU General Product Safety Directive, producers and distributors are more open than ever to litigation arising out of product liability claims. They now face not only the risk of civil claims from third parties who purchased the defective product, but also the risk of criminal prosecutions for breach of their obligations under the new regulations.

Practitioners in product liability claims are facing a new regime centred on efficiency and the purging of unnecessary litigation costs. However, non-enforcement and non-compliance may undermine its objective of providing an adjudicative framework which helps disputing parties to reach a settlement rather than have a determination imposed upon them by the courts at considerable cost.

From next year, where a manufacturer has a clear liability to the injured claimant because of a product defect and the parties cannot agree on the amount of compensation, the claim must first be assessed by the Personal Injuries Assessment Board. Only if either party does not accept an assessment will the board authorize a determination of the claim through court proceedings.

Projects & Procurement

Overview
Including: Public-Private Partnerships; Electricity Sector; Gas Sector; Infrastructure Projects; Waste Management and Water Treatment; Telecommunications; Mining Sector; Legal Environment

The effects of the ongoing financial downturn continue to be felt keenly. As a result of the perceived increased risk of borrower insolvency, banks have reverted to closer scrutiny of all stages of the project financing process. This update summarizes the ways in which banks can ensure that all aspects of their pre-drawdown criteria have been met.

The Planning and Development (Strategic Infrastructure) Act provides a streamlined planning consent procedure for strategic infrastructure developments, with applications made directly to a new division of the planning appeals board - thus bypassing the need for consent from the local planning authority. This will expedite the development of certain classes of transport, energy and environmental infrastructure.

The government is looking to public private partnerships (PPPs) to provide funding, as well as specialist skills and innovation, in its plan to revitalize public transport in Dublin. The PPP model is currently being used in the LUAS light railway project, and has been proposed for several other forthcoming projects.

Twenty eight per cent of the Irish electricity market has been opened up to competition as a result of an EU directive. However, potential developers should wait, since radical changes introduced by the new legislation will take some time to be fully implemented. In addition, planning appeals are likely to cause delays and the allocation of gas supplies among competitors must be resolved.

Securitisation & Structured Finance

The Department of Finance has indicated that it has approved proposals for draft legislation which will provide for the amendment and updating of the Asset Covered Securities Act 2001. The bill is designed to further enhance Ireland's competitive position in the issuance of covered bonds.

Telecommunications

Overview
Including: National Regulatory Authority; Licensing; National Numbering Resource; Number Portability; Significant Market Power; Universal Service Obligation; Tariff Structure; Infrastructure; Mobile Telephony; Carrier Pre-selection; Local Loop Unbundling; Competition Law

On July 25 2003 the legal basis for provision of electronic communications networks and services will change, and licences to provide relevant networks and services will be replaced by an authorization regime. Anyone will be able to avail of a 'general authorization' provided they conform to certain general conditions to be set by Ireland's telecommunications regulator.

The Commission for Communications Regulation assumed responsibility for the communications sector in December 2002, replacing the Office of the Director of Telecommunications Regulation. It has been given increased powers to regulate the sector, for example by increasing penalties and by imposing material requirements on network operators in relation to road openings.

The long-awaited Communications Regulation Bill was passed into law in April 2002. The bill was a major lobbying point for many technology and telecommunications companies, which consider its enactment essential for the development of broadband technology in Ireland. This update outlines its main provisions.

The competition for the allocation of 3G licences in Ireland was finally launched in December 2001. The launch had been delayed for over a year due to a difference of opinion between the minister for finance and the director of telecommunications regulation over the price of the licences. The licences will be awarded by way of a beauty contest.

A decision was recently handed down in the long-running litigation between Meridian Communications Ltd and Eircell, the former mobile subsidiary of the incumbent telecommunications operator. The judge found for Meridian on a number of contractual issues but rejected Meridian's contention that Eircell had breached competition law.

The Independent Radio and Television Commission is inviting submissions on its ownership guidelines for independent broadcasting, including independent commercial radio stations.

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White Collar Crime

The High Court has strongly criticised delays and inaction by the state in prosecution of white collar crime in relation to the Anglo Irish Bank investigation. The government has since published a bill to improve procedural matters with the intention of reducing delays associated with the investigation and prosecution of complex crime, in particular white collar crime.

The Mareva by letter is a significant weapon in the fight against fraud. It can be an invaluable and effective pre-emptive asset preservation measure. It assists in managing the risks of delay and considerable expense typically associated with an application to preserve assets through freezing or restraining orders, and also avoids the need to post asset-freezing indemnity bonds or security for costs.

The prosecution of a multi-jurisdictional concealed asset recovery investigation involves both extra-judicial and judicially assisted investigative procedures. A commitment to strategic and tactical planning is of paramount importance in any asset recovery exercise. The strategic plan is a highway to attaining the overarching goal of bringing meaningful remedies to the victim of fraud.

Given the complexity of serious fraud investigations, link analysis should be used to facilitate the investigation and case structuring. This is essentially a graphic method for integrating and displaying large amounts of data which is related to complicated criminal activities and civil wrongs.

At an appropriate stage in a fraud investigation, consideration should be given to administering a polygraph examination of the principal target or other primary witnesses. The test can be used during the investigative examination to elicit specific information that cannot usually be obtained by standard interview methods.

In any concealed asset recovery project, the initial planning phase is the most critical. Among other things, the plan must identify the jurisdictions in which assets are or may be located, and the suspected obligor and his facilitators. A well-conceived plan, which aims to tie down the assets while obtaining a judgment, is the ideal basis for effective asset recovery.

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