ILO publishes a series of legal Newsletters which provide expert legal commentary in the form of concise, regular news updates. The Newsletters are written in collaboration with over 500 of the world's leading experts and cover more than 100 jurisdictions.
Two recent decisions regarding a dispute over an alleged surcharge on an airline ticket fare have produced opposing conclusions on the jurisdiction applicable to such cases - one argued for state jurisdiction, and the other for federal jurisdiction. These rulings demonstrate that even 45 years after the creation of the Aeronautical Code, court jurisdiction regarding aeronautical matters has yet to be settled.
The Administrative Court recently further clarified the circumstances under which lending activities are deemed to be carried out on a commercial basis. In general, this applies if the lender grants loans repeatedly (or has the intention to do so) and the loans are granted with the aim of realising income. However, the court stressed that the legislature did not intend to place all types of lending under the ambit of the Banking Act.
In December 2012 Belgium slightly modified its exemption regime applicable to capital gains on shares realised by Belgian tax resident companies and permanent establishments of non-Belgian tax residents in Belgium. A small tax of 0.412% will now apply to capital gains realised. However, this tax will not apply to small companies, as classified by Belgian company law.
The Court of Cassation recently upheld a lower court judgment with significant environmental law-related implications. The judgment is exceptional in that both the company itself and the members of its executive board were held criminally liable for the company's policy choices. In light of this decision, it is expected that companies will comply with environmental legislation in a more consistent and precise way.
The Bermuda Regulatory Authority recently ruled on a complaint filed by telecommunications provider Digicel Bermuda stating that internet service provider North Rock Communications Limited was providing bundling services and should not be doing so until integrated communications operating licences are issued. This decision marks the dawn of the practical application of the new telecommunications regulatory regime.
The Administrative Council for Economic Defence recently cleared the first two mergers requiring remedies since the new Competition Law entered into force one year earlier. Both cases were analysed by other jurisdictions, since the companies are based abroad, and international cooperation with European competition agencies was effective in determining the cases' outcomes.
The senior deputy commissioner at the Mergers Branch of the Competition Bureau recently announced that the bureau is changing its information requirements for merger transactions involving the upstream sector of the Canadian oil and gas industry. As a result, the Competition Act approval process in upstream merger transactions should become simpler and more efficient.
Citizenship and Immigration Canada has announced proposed regulatory amendments that will narrow the definition of 'dependent child' by reducing the age limit to children under the age of 19 and removing the exception for full-time students. Once implemented, this proposed change will adversely affect the dependent children of all prospective immigrants to Canada.
In September 2013 the Canadian Intellectual Property Office and the State Intellectual Property Office of the People's Republic of China will commence a Patent Prosecution Highway pilot programme that will fast-track the examination of eligible patent applications between Canada and China. Eligible patent applicants filing in both countries can expect to achieve significant cost savings in patent prosecution expenses.
Following the recent bailout agreement between the Eurogroup and Cyprus, two new laws have been passed that have raised a number of questions in relation to transactions with international counterparties, as restrictions on capital transfer have meant that certain trades could not be effected. However, the laws do not affect the ability of a counterparty to offset obligations or the enforceability of collateral provisions.
The Federal Court of Justice recently ruled that a plot of land used for residential purposes has a material defect if underground water contaminated with toxic substances flows through it. The court stated that the land was defective because it was adjacent to a contaminated plot, which emitted pollutants via underground water. It considered that the toxic substances involved dangers which a purchaser would not normally accept.
Energy & Natural Resources
The recent formation of a new government in Greenland may greatly influence the possibilities for extraction in the coming years. Possible changes include renegotiation of parts of the Tax Act, the Large Scale Projects Act and the Mineral Resource Act, and a possible lifting of the ban on the extraction of uranium. Most parties are keen to expand the mining industry - the questions are merely how and at what pace.
Following the acquisition of Titan Europe by Titan International, the parties failed to notify the Competition Commission in a timely manner. By extrapolation from a calculation of the turnover, the commission noted that the fine should amount to approximately Rs1.45 billion. However, on the facts, the commission considered a lenient view more appropriate and imposed a smaller fine of Rs10 million on the acquirer.
The petitioner in a recent case provided passive infrastructure and related services to telecommunications operators on a shared basis. Service tax was discharged on the consideration for this service. However, it was unclear whether the provision of access to passive infrastructure could be deemed a 'transfer of right to use', and therefore whether value added tax should also apply. The Delhi High Court has now ruled on the matter.
Trade & Customs
The Supreme Court recently concluded that mere non-payment of duty could not amount to collusion or wilful misstatement unless deliberately intended. The court also argued that the intention to evade duty must be proved by the party alleging the bad-faith intention. The case concerned whether an export-oriented unit should pay duty on the supply of furnace oil to, and the procurement of electricity from, its sister concern.
The Mediation Law – which transposed the EU Mediation Directive into Italian law – originally provided that a large range of disputes could not be brought before civil courts unless the plaintiff had first attempted mediation. However, the Constitutional Court recently overturned the law on the grounds that it exceeded the scope of both the directive and the Italian Constitution by making mediation mandatory.
The Competition Authority recently published its decision to open antitrust proceedings against Italian railway operator Ferrovie dello Stato Italiane for possible abusive conduct against Nuovo Trasporto Viaggiatori (NTV), a new market entrant. The authority believes that this alleged conduct could be aimed at impeding NTV's entry into the market and harming consumers.
Contrary to common belief, the legislative instruments available in Italy against IP infringement are quite efficient. The legal framework for anti-counterfeiting enforcement has been reinforced through the Code of Industrial Property, which consolidated most of the principal IP laws; moreover, a draft bill aimed at strengthening the protection of IP rights against online infringement is under consideration by Parliament.
A recent case before the Royal Court, concerning an application for directions by the qualified member of a foundation's council, was the first time that the court had been asked to consider its supervisory powers under the Foundations (Jersey) Law since the law entered into force in 2009. The judgment included an overview of Jersey foundations and the basic and salient points of the law.
Effective and transparent dispute resolution methods are as imperative in Lebanon as they are in any other jurisdiction. The principal instrument governing the enforcement of international arbitral awards in Lebanon is the New York Convention, but both the Code of Civil Procedure and the courts also play a crucial role in protecting the integrity of the arbitral process.
In a recent case, the appellant owned a patent related to the treatment of erectile disfunction. The respondent planned to manufacture a similar drug, and requested that the earlier patent be invalidated. However, shortly before the trial commenced, the appellant filed an application to amend the patent. The High Court dismissed the application, a decision which has now been affirmed by the Court of Appeal.
For inventions comprising multiple elements, any elements claimed in the application that are not described in the specification will lead to the failure of the application, as the inclusion of an extra element would unduly extend the scope of protection of the patent. But what happens when the application describes this extra element without providing examples?
Shipping & Transport
A significant number of vessels are being arrested in the current shipping market because of payment problems or as the result of shipowner insolvencies. Therefore, it can be useful to exercise a right of retention in respect of a vessel in order to secure the right to qualify as a creditor of the shipowner. Even though such rights are not prioritised, holders of them may still be in a reasonably strong position under Dutch law.
The Alternative Securities Market is a specialised board of the Nigerian Stock Exchange (NSE), which was established to encourage the listing of small and medium-sized companies with high growth potential. It is a part of the NSE's initiative to develop a platform from which emerging business in Nigeria can access the capital markets. The listing requirements are less stringent than those for the main board of the NSE.
Shipping & Transport
In two recent decisions the Supreme Court denied seafarers' claims for disability compensation. In one case, a seafarer was repatriated with burn injuries. He reported to the manning agents nine days later. Two weeks later, he died of pneumonia and his widow filed a claim. The court held that the widow was not entitled to disability benefits as the seafarer had failed to comply with the three-day mandatory reporting requirement.
White Collar Crime
The Court of Appeal in Warsaw recently rendered a landmark judgment in the fight to control the actions of state agencies and services in corruption cases. In its oral reasons for the judgment, the court found that although the accused had accepted a bribe from Central Anti-corruption Bureau officials, the evidence accumulated by the bureau was not collected in accordance with the provisions of law.
The need to maintain existing clients' loyalty while attracting new clients has increasingly led suppliers and providers of goods and services to extend the grace period for payment of the goods or services. This in turn has led supplier companies to identify solutions to improve their cash flow, two of which are factoring and forfaiting operations. However, issues arise as to whether these operations are subject to value added tax.
The Competition Authority has released a statement on an Administrative Court decision which imposed a €3 million fine on Frikom for abuse of a dominant position in the wholesale ice-cream market. The infringements included resale price maintenance in supply agreements and tying retailers and customers to purchase from the Frikom product range only. Frikom's appeal of the fine was rejected.
The Ministry of Finance, the Monetary Authority of Singapore and the Inland Revenue Authority of Singapore recently announced plans to implement four new measures to strengthen Singapore's exchange of information framework. Taxpayers and financial institutions should be aware of their reporting obligations and issues that may arise from these measures, especially in the context of preventing cross-border tax offences.
The Constitutional Court recently declared that the dawn raid regime introduced by the Competition Protection Agency is not in line with the Constitution. Inspections carried out by the agency under the existing regime are of a broad nature and represent an invasive intervention into undertakings' privacy, in relation to both business premises and communications. The court has granted Parliament one year to update the law.
A constitutional amendment restricting the construction of secondary homes throughout Switzerland was recently approved. Secondary homes now cannot occupy more than 20% of the dwelling stock or total surface of each Swiss municipality. The construction industry feared that it would face a blanket ban on chalet construction. Subsequently, real estate promoters have scrambled to file for building permits.
Switzerland has adopted a number of sanctions against Iran. These sanctions may affect construction contracts if, among other things, one of the parties is blacklisted or the construction contract concerns works falling under the restrictions imposed by the sanctions. Any breach of the sanctions would be considered to be illegal and entail the nullity of the contract.
Insolvency & Restructuring
The Federal Debt Collection and Bankruptcy Act is being revised with a focus on facilitated corporate restructuring. The proposal sets forth a number of measures that should facilitate restructuring; and it is expected that the revision process will conclude in the next few months. However, some of the amendments – in particular, the social plan obligation – will likely lead to numerous discussions, which may delay the revision.
It is standard practice for parties to international contracts to agree on the particular law that will apply to the contract. However, as two recent arbitrations show, parties occasionally make a mistake in properly naming the applicable law or include too many conflicting clauses in their contract, which may stymie an arbitral tribunal in deciding which substantive law should be applied.
The Home Office has announced plans to introduce a wide range of improvements to its IT systems, including the sponsorship management system. Among other things, key dates related to sponsor licences will now be displayed, an application and licence renewal tracking function will be introduced and the sponsorship management system menu structure and content will be revised to provide for greater ease of navigation.
The Court of Appeal recently upheld the High Court's decision to refuse permission to amend an existing claim to include allegations of intentional wrongdoing. Although the court found that there was an attempt to plead a new cause of action by the introduction of intentional wrongdoing, it left open the possibility of some of the proposed amendments being incorporated into the reply as part of a rebuttal to the defence.
The Consumer Financial Protection Bureau has brought its first enforcement action for alleged abusive acts or practices under the Consumer Financial Protection Act of 2010. The allegations relate to misrepresentations commonly associated with deceptive acts claims, but also emphasise elements in the statutory definition of 'abusive', including the reasonable reliance of vulnerable consumers on the debt-settlement company.
Healthcare & Life Sciences
The Department of Health and Human Services' Office of Inspector General recently released the Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programmes, which replaces and supersedes a 1999 bulletin on the same topic. The bulletin describes the scope and effect of the legal prohibition on federal healthcare programme payment to excluded persons.