Newsletter Search - International Law Office
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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.
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Albania
Competition
In order to harmonise Albanian legislation with EU law, the Albanian Competition Authority has approved the Regulation on the Exemption of Research and Development (R&D) Agreement Categories. The regulation sets down the block exemption from applicable competition restrictions of agreements regarding the R&D of products or processes up to the stage of industrial application and exploitation of the results.
Construction
Under Albanian law, a construction contractor is solely responsible for its commercial liabilities towards third parties (ie, its subcontractors). However, in certain circumstances, the contractor's employees or subcontractors which are engaged in the performance of works or services for the benefit of the principal may make direct claims to the principal for the payment of moneys.
Employment & Labour
The Labour Code sets down various rules regarding working time (eg, daily and weekly working time, night work and shifts, overtime and rest periods). The code states that the normal daily working hours must not exceed eight hours, and any working hour performed between 10:00pm and 6:00am is considered to be night work.
Argentina
Employment & Labour
Overview (February 2011)
Including: New legislation; Significant court cases.
Trade & Customs
Argentina keeps restricting imports
In a new push against imports, the Argentine government recently issued a resolution requiring importers to file an advance import affidavit before the definitive import of any type of goods. Under the resolution, importers must file an affidavit before issuing a purchase order. The government will now have the power to administer the whole of Argentina's international trade and decide what gets in and what gets stuck at the ports.
Belgium
Intellectual Property
Belgian courts tend to provide protection to holders of duly registered colour trademarks. A recent decision of the Brussels Commercial Court has confirmed this trend, granting protection to the registered colour trademark for the champagne brand Veuve Cliquot Ponsardin.
Bermuda
Company & Commercial
Act improves Bermuda's company law
The Senate recently passed the Companies Amendment (Number 2) Act. The act updates and improves Bermuda's company law and provides, among other benefits, the opportunity for simplified management and operation of companies and an enhanced choice of corporate structures for mergers and acquisitions – all of which are aimed at making Bermuda a more attractive and competitive jurisdiction.
Offshore Services
Act improves Bermuda's company law
The Senate recently passed the Companies Amendment (Number 2) Act. The act updates and improves Bermuda's company law and provides, among other benefits, the opportunity for simplified management and operation of companies and an enhanced choice of corporate structures for mergers and acquisitions – all of which are aimed at making Bermuda a more attractive and competitive jurisdiction.
Brazil
Arbitration
The quality of arbitration jurisprudence is likely to improve with the creation of a specialised chamber of the Sao Paulo Appellate Court which has exclusive jurisdiction over commercial law disputes, including lawsuits arising from arbitration. Despite the recent establishment of this chamber, a review of its first arbitration-related decisions reveals a pro-arbitration stance among its members.
Shipping & Transport
In a recent case a Brazilian shipowner was hired to charter a vessel for an oil company. The shipowner hired a Brazilian shipyard to construct the vessel. Following delays in delivery, the case was brought before the courts, where it was discovered that two contracts existed for two different amounts for the same job. By defining the type of contract applicable to the case, the court defined the liability of the parties.
Telecommunications
ANATEL, the Brazilian telecommunications regulator, recently submitted to public consultation an application it had received for the annulment of several provisions of the service quality management regulations for multimedia communication and personal mobiles. The provisions affected by the application relate to the indicators used to evaluate the quality of fixed and mobile broadband and the quality perceived by the user.
Canada
Aviation
The air cargo surcharges class action has been winding its way through the courts. In the latest development the Ontario Superior Court of Justice has certified, on consent, the claims against SAS, Qantas, Cargolux and Singapore Airlines, solely for the purpose of settlement. When certification is sought solely for this purpose, the court applies a much-less rigorous test for determining whether certification is appropriate.
Corporate Immigration
Citizenship and Immigration Canada has authorised the recapture of unused time that would otherwise count against the time limits usually imposed on foreign nationals working in Canada as intra-company transferees. Such transferees can now extend their status beyond the normal seven and five-year limits that would otherwise apply if they have spent part of the validity period of their prior work permits outside Canada.
Intellectual Property
The Federal Court of Appeal recently reversed a trial judge's finding that the 1993 version of Section 8 of the Patented Medicines (Notice of Compliance) Regulations applied to Apotex's claim against Merck relating to a prohibition proceeding regarding lovastatin (Merck's Mevacor).
Litigation
The Ontario Court of Appeal has handed down an important decision in Combined Air Mechanical Services Inc v Flesch in which it clarified the scope and availability of the summary judgment procedure in Ontario. The court has introduced a new legal test – the 'full appreciation' test, which directs when a court may resolve a case by way of summary judgment under Rule 20 of the Rules of Civil Procedure.
Cyprus
Shipping & Transport
The Department of Merchant Shipping recently announced that the 2004 agreement between Cyprus and Italy on maritime navigation has been amended by an exchange of notes between the two countries. Under the amended agreement, each contracting party must treat ships of the other contracting party that call at its ports as favourably as its own ships.
European Union
Environment
It has been announced that the European Commission has begun its work on the impact assessment study being carried out for the EU Restriction of Hazardous Substances (RoHS) II Directive. The commission had planned an extensive study into the RoHS II Directive in order to extend its scope and include new products and product categories which had been excluded from RoHS I and ensuing recast proposals.
Intellectual Property
The long-awaited judgment of the European Court of Justice in the joined cases of Philips and Nokia has finally been issued. The judgment answered questions concerning the interpretation and application of EU regulations in regards to a customs action against goods that are suspected of IP infringment and the measures to be taken against goods that are found to have infringed such rights.
France
Media & Entertainment
The Paris Court of Appeal has recognised as an author and performer a presenter who was hired to write and present features and to respond to inquiries from viewers in a broadcast on a cable television channel. The court also reclassified several standard fixed-term contracts concluded between the presenter and the programme producer as open-ended employment contracts.
Germany
Competition
Gun jumping and other violations of the obligation to suspend a transaction prior to clearance can be costly in Germany. Foreign-to-foreign mergers are subject to German merger control if they have a 'domestic effect' – a term that is interpreted widely by the Federal Cartel Office (FCO). The FCO has repeatedly made clear that it will enforce this obligation, and has imposed fines on a number of occasions.
Construction
The seventh revision of the schedule on architects' and engineers' services and fees is planned for 2013. According to the Federal Council, the goals of the reform are to modernise and harmonise the performance areas defined in the schedule, remedy the defects that were noted in the 2009 revision of the schedule, and adjust the fee structure and the sufficiency of the fees again, with a view to increasing the fees.
Employment & Labour
Two recent European Court of Justice decisions have made fundamental changes to German law regarding entitlement to leave. In future, the parties to collective bargaining agreements in Germany will not be prevented from agreeing a forfeiture deadline for leave transferred as the result of an inability to work. However, the collective bargaining parties cannot be expected to make use of this option across the board.
Greece
Product Liability
The Consumer Protection Law holds the manufacturer of a defective product liable for any damage caused to the consumer. However, the manufacturer may be exempted from liability if it can prove that certain 'negative' conditions were met. In a recent judgment a manufacturer was released from any liability, since it proved that its production method was organised so that no defects could occur before the product had left its facility.
Hungary
Banking
New central bank law comes into effect
On the basis of the Fundamental Law, the Magyar Nemzeti Bank Act 2011 has replaced the Magyar Nemzeti Bank Act 2001. The Magyar Nemzeti Bank (MNB) – the central bank of Hungary – is obliged to adapt its governance and operation to accord with the new law by the end of March 2012. But the new act's changes raise concerns that the government may try to exercise undue political influence over the MNB.
Intellectual Property
BOSS and BASS in a battle of the beers
Trademark law across EU member states has become closely harmonised and case law is no exception. Decisions of the Hungarian Intellectual Property Office, the Metropolitan Court and the Metropolitan Court of Appeal, in a case involving the word mark BOSS and the BASS word and device marks, are consistent with the European Court of Justice's view in Canon.
India
Corporate Tax
The Supreme Court of India recently issued a landmark judgment in the much-awaited Vodafone case. The judgment highlights that the Hutchinson transaction (in which Vodafone acquired a single share of an HTIL subsidiary) was a valid structural transaction and the Indian authorities had no jurisdiction to tax such an offshore transaction. It is hoped that the government will respect and accept the court's judgment.
Litigation
The Supreme Court recently clarified the eligibility of a single arbitration proceeding between multiple parties in disputes that arise from the same cause of action. The court considered that it would be proper and just to rule that when one party has a claim jointly against a second and a third party, and when there are provisions for arbitration in respect of both other parties, there can be a single arbitration.
Japan
Employment & Labour
The Ministry of Health, Labour and Welfare issued new guidelines on the standards by which to determine whether mental health problems are deemed to be work related. They also change the rules on how a related period of workplace bullying or harassment is taken into account.
Jersey
Commercial Property
Under the Goods and Services Tax (Jersey) Law 2007, a landlord of commercial property in Jersey may be liable to account to the States of Jersey for 5% of its rental income. Commercial leases entered into before the law was published have been grandfathered, but this five-year exemption on goods and services tax liability ends later this year. All commercial leases will then potentially become taxable supplies.
Offshore Services
Under the Goods and Services Tax (Jersey) Law 2007, a landlord of commercial property in Jersey may be liable to account to the States of Jersey for 5% of its rental income. Commercial leases entered into before the law was published have been grandfathered, but this five-year exemption on goods and services tax liability ends later this year. All commercial leases will then potentially become taxable supplies.
Malta
Shipping & Transport
A Maltese civil court recently further confirmed the rights of mortgagees granted by the law. Despite leaving a number of questions unanswered, this ruling should reassure international financiers of vessels registered under the Malta flag. Provided that the contracts into which they enter are in line with the provisions of the Merchant Shipping Act, financiers can rest assured that their rights will be fully upheld and safeguarded.
Mauritius
Company & Commercial
The Mauritius Limited Partnerships Act recently came into effect and introduced a Mauritius legal entity, the limited partnership (LP). The LP structure has many advantages. LPs that have a legal personality are legal persons distinct from their members. This means that they can enter into contracts, own property and sue and be sued in their own names, making them more flexible than a company structure.
Offshore Services
The Mauritius Limited Partnerships Act recently came into effect and introduced a Mauritius legal entity, the limited partnership (LP). The LP structure has many advantages. LPs that have a legal personality are legal persons distinct from their members. This means that they can enter into contracts, own property and sue and be sued in their own names, making them more flexible than a company structure.
Netherlands
Competition
The Supreme Court has clarified that the exception to the duration of a non-compete as laid down in the (former) block exemption for vertical agreements should be interpreted according to national law. In dispute was whether a non-compete with a 20-year duration concluded between energy company BP and the operator of a number of petrol stations could fall within the exception.
In line with settled EU case law, the Supreme Court ruled that the Leeuwarden Court of Appeal was right to qualify the termination of a distribution contract by bicycle supplier Batavus under pressure of one of its largest customers as a concerted practice having an anti-competitive object of which there was no need to consider its actual effects.
New Zealand
Litigation
Overhaul of High Court discovery rules
A new set of High Court discovery rules has been designed to reduce the often disproportionate cost of discovery - a matter of increasing concern in New Zealand and other common law jurisdictions. Key features include a new standard for discoverability, a presumption in favour of electronic exchange and the creation of an express obligation to preserve documents.
Norway
Intellectual Property
The Court of Appeal recently ruled that the 'Oliver' children's chair produced by Trumf AS infringed Stokke AS's copyright in the well-known Tripp Trapp chair. The court also found that Trumf's use of the slogan, "This great children's chair will grow with your child" infringed Stokke's own trademarked slogan, "The chair that grows with your child".
Shipping & Transport
Full City: order restored?
The Agder Appeal Court has delivered its final judgment in the criminal case following the grounding of the Full City off Langesund in 2009. The court acquitted the third officer and reduced the master's sentence to six months' suspended imprisonment. The judgment showed a far greater understanding of the maritime industry as compared with the earlier district court judgment.
Russia
Construction
Federal legislation has specified the procedure for maintaining a construction permit in the event of transfer of title to a land plot and capital construction facilities. The amendments will undoubtedly have a positive impact on the turnover of land plots, as well as the construction process as a whole, although it remains to be seen how far they will be reflected in practice.
Slovenia
Energy & Natural Resources
Representatives of Slovenia, Austria, Croatia, the Czech Republic, Germany, Hungary, Poland, Romania, Slovakia and the European Commission recently signed in Brussels a memorandum of understanding on north-south interconnections in Central Eastern Europe. The representatives expressed their joint determination to promote and further develop electricity, gas and oil infrastructure in the region at a ministerial level.
South Africa
Employment & Labour
New guidelines for misconduct arbitrations
The Commission for Conciliation, Mediation and Arbitration (CCMA) has published a document entitled "Guidelines on Misconduct Arbitrations". The guidelines aim to promote consistent decision making by CCMA commissioners during arbitrations relating to dismissals for misconduct, in order to give effect to the constitutional right to lawful, reasonable and procedurally fair administrative action.
Spain
Intellectual Property
The Judicial Power Council has announced an agreement that the commercial courts of Barcelona will each have competence in a specific field of intellectual property. Although this agreement currently refers only to Barcelona courts, it is understood as being the first step towards the desired specialisation of all Spanish courts in an area which the council recognises as highly complex.
Sweden
Company & Commercial
A recent case regarding a production line that was unsuitable for industrial production sheds some light on whether a failed service should be regarded as a breach of contract. The case confirms the need for the buyer to specify clearly the object of the agreement. This appears to be the first time that the courts have clearly identified the two major objects of an agreement: the duty to achieve a specific result and the duty of best efforts.
Turkey
Employment & Labour
Employers are under a duty to protect their employees from 'mobbing', as it infringes employees' personal rights and adversely affects their psychological health. As more cases of mobbing have been revealed in the labour market, the public, administrative authorities and the Turkish legislature have become increasingly aware of the issue. Employers must be attentive in managing such behaviour in the workplace.
United Arab Emirates
Intellectual Property
The 10th edition of the Nice Classification of goods and services recently came into force, providing a significant advantage for trademark owners filing trademark applications in countries that have adopted the classification. However, in the Middle East, where most countries are not signatories to the Nice Agreement, the position has become more complicated than it was previously.
United Kingdom
Litigation
A recent case highlights the potentially perilous interaction between contractually agreed limitation periods and provisions governing the service of notices and claims. In order to avoid claims being time barred, it is essential that service provisions are both carefully drafted and meticulously followed.
Offshore Services
Tax-effective charitable giving
The UK government is increasing its attempts to encourage the public to become more philanthropic through its 'Big Society' initiative. There are also growing calls for the wealthy to contribute more to society, as well as growing enthusiasm among high-net-worth individuals for philanthropy. However, it is important for individuals to consider the options for charitable giving and the UK tax reliefs available.
USA
Energy & Natural Resources
The US Fish and Wildlife Service, Pacific Region, recently issued a draft environmental assessment in response to West Butte Wind Power LLC's application for a programmatic golden eagle take permit. The service had not previously acted upon such an application under the Bald Eagle and Golden Eagle Protection Act, where it acknowledged that the wind project would result in the death of protected eagles.
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