Mondaq Business Briefing articles from April 2005

Mondaq Business Briefing archives from April 2005

"Check That Cheque" or be Left Holding the Bag.
April 1, 2005... A recent Ontario Court of Appeal decision has highlighted again the perils facing banks which unwittingly negotiate fraudulent cheques. In Westboro Flooring and Decor Inc. v. Bank of Nova Scotia, the Court pinned the entire loss flowing from a...

New Rules Aim to Tighten up Regulation of Cryptography Providers.
April 1, 2005... The Minister of Communications published proposed Cryptography and Accreditation Regulations, which, among other things, will oblige providers of encryption services and products (cryptography providers) to supply highly detailed information...

The Privilege Checklist.
April 1, 2005... Below we discuss the ambit of the protection afforded to your communications with your legal advisers and third parties. We explain the difference between privilege and confidentiality, and conclude with a checklist of the issues which should...

The Draft Codes Of Good Practice On Broad-Based Black Economic Empowerment.
April 1, 2005... The draft Codes of Good Practice on Broad-Based Black Economic Empowerment ("Codes") were published by the Department of Trade & Industry in December 2004 for comment. In this article we set out some of the principles and requirements of the...

Deloitte Weekly Customs News - Week ended 25 March 2005.
April 1, 2005... Proposed simplification of Generalised System of Preferences The EU has proposed a new Generalised System of Preferences (GSP) aimed at simplifying the current GSP rules. The new GSP scheme, for which an implementation date is awaited, will...

Class Action Fairness Act Changes Litigation Landscape.
April 1, 2005... The Class Action Fairness Act, while not a panacea for corporate America's litigation woes, should end the prosecution of nationwide class actions in so-called "hellhole" jurisdictions. It should also limit the proliferation of overlapping,...

Liechtenstein Foundations and its International use: an Example with a Swiss Domiciled Settlor/ Founder and Swiss Domiciled Beneficiary.
April 1, 2005... Liechtenstein foundations are a very well-known family planning instrument as they can easily be set up and maintained. However in the international tax and civil law field, especially where the assets are not only located in Liechtenstein,...

Warning Instructions: As Easy as Riding a Bicycle.
April 1, 2005... The Supreme Court has twice addressed the issue of warning instructions on products for sale, and has laid down guiding principles. In both cases, which resulted from accidents with a bicycle and a bottle of sparkling fruit drink respectively,...

Supreme Court Allows Disparate Impact Claims Under ADEA.
April 1, 2005... In a surprise ruling, the U.S. Supreme Court decided on March 30, 2005 that a claimant may establish liability under the federal Age Discrimination in Employment Act (ADEA) even if there is no intent to discriminate. Smith v. City of Jackson,...

Workplace Consultation: A New Era.
April 1, 2005... A new legal framework of compulsory collective workplace representation will be created in Ireland when the Information and Consultation Directive comes into force. The deadline for the transposition of this Directive was 23rd March 2005 but...

Doing Business in Corrupt Countries.
April 4, 2005... By Gar Knutson, P.C. (Ottawa) In my work as Secretary of State and then later as Minister of State for International Trade, I traveled to a number of countries with a high degree of corruption both in the political class and the business...

Lobbyist Registration in Canada.
April 4, 2005... By Colin P. MacDonald, Partner (Calgary) Chair, Government Relations Practice Group Lobbying in Canada is attracting the continuous attention of governments and the public. Persons engaged in the lobbying of public officials are...

Entering the Twilight Zone Between Institution and Innovation: Trademark Improvement Initiatives.
April 4, 2005... By Mary Jane Lemenchick and Kathleen Lemieux (Ottawa) The last fundamental revision to Canadian trademarks legislation was enacted in 1953 and came into effect in 1954 in the Trade-marks Act. It brought with it, amongst other things, the...

Is It Still Safe To Be An Independent Director?
April 4, 2005... Originally published April, 2005 At Seyfarth Shaw LLP, we pay particular attention to legal developments affecting corporate Board members. Of particular interest is a recent Delaware appellate court decision involving the Walt Disney...

New Income Tax Rates.(Brief Article)
April 4, 2005... As of 1 January 2005 Estonia has a new income tax rate of 24% and a basic exemption of 1700 EEK per month. The new income tax rate and basic exemption are applicable to all payments made from 1 January 2005, irrespective of the period for which...

Gibraltar Qualifying Company Status to be Phased Out.(Brief Article)
April 4, 2005... In a confidential document obtained by the Gibraltar Chronicle, it is claimed that Finance Centre Director James Tipping has told 200 locally based firms that the European Commission may force the Gibraltar government to abolish the qualifying...

Law to Guarantee Involvement of Employees in Company Activities.
April 4, 2005... On 12 January 2005 the Estonian Parliament (Riigikogu) adopted the Act on Involving Employees in Activities of Community-scale Undertakings, Community-scale Groups of Undertakings and European Companies. The act sets foth an obligation for...

The New Bankruptcy Law.
April 4, 2005... By Walter Douglas Stuber and Anal[pounds]cia L. O. C. Carloni1 I - Introduction Law ns. 11101, of February 9, 2005, the New Bankruptcy Law, was finally enacted after eleven years of congressional action, and it is also known as the...

The Insurance Amendment Act 2004.
April 4, 2005... Introduction A bill entitled "The Insurance Amendment Act 2004" (the "Amendment Act") passed its second reading in the Senate on 8 December 2004 and received the assent of the Governor General on 10 December 2004. The operative date from...

Communications Law Bulletin -March 2005 (continued).
April 4, 2005... D.C. Circuit Court Upholds FCC Orders Requiring Intermodal and Wireless-to-Wireless Number Portability, but Stays Effectiveness of Intermodal Order on Procedural Grounds On March 11, 2005, the D.C. Circuit Court issued two separate...

Goodwin Procter LLP to Host Financial Services Webinar - 'Key Issues in Data Security: What You Need to Know Now'.(Calendar)
April 4, 2005... Contact: Melissa Doyle Goodwin Procter LLP (617) 570-1026 BOSTON, March 31, 2005 - Goodwin Procter LLP, a leading national law firm with offices in Boston, New York, New Jersey and Washington, DC, is pleased to announce that it...

Borden Ladner Gervais LLP Expands Government Relations Practice.(Company Profile)
April 4, 2005... The Honourable Gar Knutson, P.C., and Dr. Stephen Andrews join BLG's Government Relations Group Toronto, Ontario February 10, 2005 - Sean Weir, National Managing Partner of Borden Ladner Gervais LLP, one of Canada's leading full-service...

Appleby Announces Expansion and New Bermuda Managing Director.(Appleby Spurling Hunter )(Company Profile)
April 4, 2005... Appleby Spurling Hunter recently expanded its global presence and trust services. Appleby Trust (Bermuda) Ltd. (formerly Harrington Trust) is joined by the new Cayman Islands operation, Appleby Trust (Cayman) Ltd., which commenced operations on...

Blueprint for Judicial Review of Regulations.
April 4, 2005... How broad is an agency's discretion to adopt regulations to promote the public welfare? That question was answered by the Court of Appeal, Third District, in American Insurance Ass'n, et al. v. John Garamendi, et al., on February 28, 2005....

Important New Financial Reporting and Continuous Disclosure Requirements for Investment Funds.
April 4, 2005... Article by by Michael Burns, Kimberly Poster and David Hudson, Student-at-Law The CSA Releases National Instrument 81-106 Investment Fund Continuous Disclosure Introduction The Canadian Securities Administrators (the "CSA") have...

Boundary Line Battles.
April 4, 2005... One of the more disheartening events in the land development process is the survey that reveals an encroaching use by an adjoining property owner. In a residential setting, this may be something as minimal as landscaping. In other settings, it...

Software Escrows as Part of an Intellectual Property Strategy.(Industry Overview)
April 4, 2005... Introduction For many companies, a key aspect of a comprehensive intellectual property strategy is to identify and enforce mechanisms to protect their investment in software purchased from software developers. One particular tool to guard...

Communications Law Bulletin -- March 2005.
April 4, 2005... The Month In Brief As we discuss further below, on March 16, President Bush announced his selection of Republican Commissioner Kevin Martin as Chairman of the Federal Communications Commission ("FCC" or "Commission"). As a sitting...

Barter: The 'New/Old' Currency for Business - Part 1.
April 5, 2005... Published in the Las Vegas Tribune, November 2004 Many developing countries with little or no access to money and banking that have commonly traded raw materials, such as iron for chickens, or grain for coffee, may soon have the...

Deloitte Weekly VAT News - Week ended 1 April 2005.
April 5, 2005... Disclosure rules - Customs seek comments on Budget changes Customs have published a draft Statutory Instrument that adds two new "listed schemes"- relating to cross border face value vouchers and the removal of the option to tax upon the...

Recovery of VAT on Fees Relating to Share Issues.
April 5, 2005... Originally published March 2005 It may now be possible to recover VAT on advisers' fees relating to share issues made in the last 3 years (or in the future) according to a recent Advocate General's opinion in a European Court of Justice...

Draft TUPE Regulations Published at Last.(Transfer of Undertakings Protection of Employment)
April 5, 2005... Originally published March 2005 The DTI has finally published draft TUPE Regulations designed to update UK law in line with the European Acquired Rights Directive. It is hoped that the new Regulations will bring greater clarity to the legal...

Tax Office v Yukos/Prom Line v Tax Office.
April 5, 2005... By Marco Koschier and Olga Boltenko Originally published October 15, 2004 The biggest tax case in Russian history, Tax Office v Yukos, is receiving significant attention. The Yukos decision raises several important points of Russian...

Japan and Iran Seal Ground-Breaking Oil Deal.
April 5, 2005... Originally published May 24 2004 Signature of the contract on the development of the Azadegan oilfield, worth $2.8 billion and with an estimated capacity of 36 billion barrels, will guarantee the energy security of Japan for 20 years. The...

Real Estate Buzzwords.
April 6, 2005... Article by Joan Kennedy, [c]2005 Blake, Cassels & Graydon LLP This article was originally published in Blakes Bulletin on Real Estate & Mortgage Financing - March 2005 In an area of the law that commands as much attention to detail as...

Enforcing Borrowers' Undertakings.
April 6, 2005... Article by David O'Brien, [c]2005 Blake, Cassels & Graydon LLP This article was originally published in Blakes Bulletin on Real Estate & Mortgage Financing - March 2005 Last minute issues often arise on mortgage loans which cannot be...

Cal/OSHA Regulations Are Now Evidence of Negligence Per Se in Third-Party Tort Actions.
April 6, 2005... The California Supreme Court recently ruled in Elsner v. Uveges (2004) 34 Cal. 4th 915, that the regulations of the California Occupational Safety and Health Act ("Cal/OSHA") are admissible in negligence actions against private third parties....

SEC to Consider Proposal Regarding Status under the Advisers Act of Broker-Dealers That Provide Advisory Services.
April 6, 2005... Goodwin Procter to Host Web-Based Seminar on Data Security Leaks, Privacy Protection and Information Security Issues On Tuesday, April 12, at noon Eastern/9 a.m. Pacific, Goodwin Procter will host a free, hour-long web-based seminar on one...

The Next Wave: Developing Markets in Renewable Energy.
April 6, 2005... By Elise N. Zoli, Robert H. Fitzgerald and Aladdine Joroff Originally published March 2005 In an age of volatile energy prices, increasing concern over climate change, and political debate over reliance on foreign sources of energy,...

Recent Opinions Clarify New Massachusetts Law Regarding Independent Contractor Classifications.
April 6, 2005... By Wilfred J. Benoit, Jr., Daniel P. Condon, Alan Dankner, Robert M. Hale and James W. Nagle Originally published March 30, 2005 Last year, in a little-noticed amendment to the Massachusetts Weekly Payment of Wages Law ("MWPWL")...

U.S. Supreme Court Rules on Age Discrimination in Employment.
April 6, 2005... Last week, the U.S. Supreme Court made it easier for employees to recover damages for age discrimination under the U.S. Age Discrimination in Employment Act of 1967 (ADEA). In Smith v. City of Jackson, Mississippi,1 the Court held that under...

New Approach to Leave to Appeal to the Privy Council.
April 6, 2005... Originally published April 2005 In some of its recent decisions the Court of Appeal seems to have adopted a more restrictive line on applications for leave to appeal to the Privy Council. Although the Virgin Islands (Appeals to the Privy...

Supreme Court Creates Pitfalls on Enforcement of Foreign Judgments in Nigeria.
April 6, 2005... Introduction The recent deregulation of the Nigerian economy will no doubt open a doorway for increased foreign investments in Nigeria. It is axiomatic that [potential and existing] foreign investors cares about commercial realism and...

Clearer Federal "Broker Disclosure" Requirements.(Brief Article)
April 6, 2005... The Department of Labor has released Advisory Opinion 2005-02A providing further guidance on the duty of insurance companies providing insurance coverage to ERISA pension and welfare benefit plans to furnish information to plans on commissions...

Initial Amendments to Competition Act Completed.
April 6, 2005... Background The first part of a long-awaited modernization of the Dutch Competition Act 1997 has recently been finalized. On July 20 2004 an act amending the Competition Act was published in the Law Gazette. The amendment was deemed...

Incorporation of Airport Companies Takes Off.
April 6, 2005... In 2003 the government approved a project to restructure, decentralize and optimize state-owned airports and their administration. In April 2004 complementary legislation in the form of the Airport Companies Law took effect. The law...

FTC Provides Guidance to Business to Clarify Who is the "Sender" for Certain E-Mail Messages.
April 6, 2005... Originally published March 31, 2005 The Direct Marketing Association (DMA) asked the staff of the Federal Trade Commission (FTC) for an opinion regarding who is considered to be the "sender" of a commercial electronic mail message under...

Supreme Court Gives Okay to Disparate Impact Claims under the ADEA.
April 6, 2005... Originally published April 4, 2005 On March 30, 2005, the United States Supreme Court resolved a split among the federal appellate courts over whether the federal Age Discrimination in Employment Act (ADEA) allowed workers age 40 and over...

SEC Enforcement Action against Flowserve Corporation.
April 6, 2005... A recent SEC enforcement action against Flowserve Corporation under Regulation FD is instructive about precautions public companies should take in updating or confirming earnings guidance in a non-public forum, particularly in the second half...

The New Brazilian Restructuring and Bankruptcy Law*.
April 6, 2005... After over ten years of discussion, the Brazilian Congress finally approved a new Restructuring and Bankruptcy Law for Brazil. The fact alone that 80% of the insolvent companies in the country fail to recover from their financial difficulties...

North Dakota Supreme Court Upholds Arbitration Provision In U.S. Bank's Credit Card Agreement.
April 6, 2005... On March 31, 2005, the North Dakota Supreme Court rejected a challenge to an arbitration provision in U.S. Bank's credit card customer agreements. Strand v. U.S. Bank National Association ND, No. 20040068 (N.D. Mar. 31, 2005. A copy of the...

Agreement for the Strengthening of the Economic Association Between the Mexican United States and Japan.
April 6, 2005... The long awaited Mexico-Japan EAA, finally came into effect today, April 1st, 2005.1 With a wider scope than a free trade agreement, the Mexico-Japan EAA not only provides for a trade and investment liberalization environment, but also for a...

Guidance Issued Explaining Simultaneous Like-Kind Exchange and Home Sale Gain Exclusion.
April 7, 2005... The IRS recently issued Rev Proc 2005-14, 2005-7 IRB. This Revenue Procedure clarifies that the exclusion of gain from the sale of a principal residence under IRC s. 121 may be combined with a like-kind exchange under IRC s. 1031. This Revenue...

Permanent Establishment" Under The Ontario Employer Health Tax Act.
April 7, 2005... Article by David Spiro, [c]2005 Blake, Cassels & Graydon LLP This article was originally published in Blakes Bulletin on Cross Border Taxation - March 2005 In Toronto Blue Jays Baseball Club and Maple Leaf Sports and Entertainment Ltd....

Profitability Monitor.(Industry Overview)
April 7, 2005... Originally published 4th April 2005 Our regular assessment of the current state of the profitability of British business and the economic factors influencing its prospects for the future, prepared by Roger Bootle, Economic Adviser to...

Mild Optimism. The Future of the U.K Household Insurance Market.(Industry Overview)
April 7, 2005... Article by Harold Clarke, James Rakow and Catherine Barton Contents Mild Optimism Changing The Face Of Distribution Premium And Loss Trends Small Is No Longer Beautiful Mild Optimism Introduction Deloitte...

New Theories in Lender Liability: To Lend or Not to Lend, That Is the Question.
April 7, 2005... Many bankers, at one time or another, surely must wish they had followed the advice of Shakespeare's Lord Polonius when he said to Laertes, "Neither a borrower nor a lender be" (Hamlet, Act I Scene 3). To this day, lenders continue to be...

The End of Consumer Data Protection?(Data Protection Act 2000)
April 7, 2005... In its decision of May 4 2004 (Case 4 Ob 50/04p) the Supreme Court considered whether an ex-employee who processed his former employer's data had violated the Data Protection Act 2000. The plaintiffs were the former employers of the first...

SEC Announces One-Year Extension of Section 404.(Brief Article)
April 7, 2005... Originally published March 3, 2005 Yesterday evening (Washington time), the US SEC announced that it is extending for most "foreign private issuers" the deadline for compliance with the internal controls reporting and certification process...

FERC Tightens Interlocking Officer and Director Rules.
April 7, 2005... The Federal Energy Regulatory Commission ("FERC") announced on March 25, 2005 proposed new rules to tighten and clarify the requirements for advance approval for officers and directors of FERC public utilities to also hold officer and director...

Argentina's Impressive Economic Recovery And The Debt Swap.
April 7, 2005... The Government of Argentina and particularly its Ministry of Economy could not be happier with not only the result of the debt swap of the Argentine debt but with the overall state of the economy. The bondholders that did not participate of the...

Corporate Acquisitions in Ukraine: Financing Story.
April 7, 2005... Article by Mykola Orlov Both the EU enlargement and the Orange Revolution have provided additional boost to the recovering Ukrainian economy. Multinationals are now more than ever interested in expanding into Ukraine (the "China of Europe"...

Procurement And The Challenge Of Municipal Governance.
April 7, 2005... Originally published October 2004 A short while ago, a client called to share the details of a procurement process gone wrong. The facts were unusually ghastly. The client, a just-declared unsuccessful bidder, had spent a princely sum of...

L. Joseph Genereux, Board President of LegalCORPS, To Receive 2005 American Bar Association Section of Business Law Committee on Pro Bono National Public Service Award.
April 7, 2005... L. Joseph Genereux, president of the LegalCORPS Board of Directors and a partner at Dorsey & Whitney LLP in Minneapolis, has been named the recipient of the 2005 American Bar Association Section of Business Law Committee on Pro Bono National...

Patients' Entitlement to Vote in General Elections.
April 7, 2005... Originally published February 2005 With the forthcoming General Election, issues are likely to arise regarding the ability of patients to vote. The following article summarises the Statutory Regulations. The Representation of the...

The Housing Act.
April 7, 2005... Originally published January 2005 The Housing Act 2004 received royal assent on 18 November 2004 and its provisions will be brought into force in stages by commencement orders. The Act contains reforms which aim to create a fairer housing...

The Syfait Case - Observations on Advocate General Jacobs's Opinion.
April 7, 2005... Originally published March 2005 This article considers Advocate General Jacobs's opinion1 handed down his opinion on the Syfait case on 28 October 2004. The case concerns a preliminary reference from the Greek Competition Commission...

Prozac - No New Data Exclusivity Period for the Liquid Formulation.
April 7, 2005... Originally published March 2005 A generic pharmaceutical company will generally rely on the exemption under Article 10(1)(iii) of Directive 2001/38/EC which provides that the results of full toxicological and pharmacological tests or the...

New Legislation Regulates Participants in Banking Sector.(Brief Article)
April 7, 2005... This article was first published on the International Law Office Act 510/2002 on Payment Systems took effect on January 1 2003. It is the first domestic law to regulate payment transactions and was drafted to ensure compliance with EU law....

The Antitrust Modernization Commission Releases Timetable for Conducting Hearings and Requesting Comments on Potential Revisions to Antitrust Laws.
April 7, 2005... By Jesse Markham and Steve Smith Originally published April 2005 On March 31, 2005, the Antitrust Modernization Commission ("Commission"), as part of its statutory mandate to examine whether the U.S. antitrust laws need to be...

Jury to Decide if "Black Ice" is Open and Obvious.
April 7, 2005... In Woodard v ERP Operating Limited Partnership, 2005 U.S. Dist. LEXIS 114 (E.D. Mich., January 7, 2005), Plaintiff filed suit after slipping and falling on a patch of ice on a cracked and broken concrete sidewalk on Defendant's property....

Stop Letting Your Property Get Mowed Away - Fighting Claims of Adverse Possession.
April 7, 2005... It has been said that good fences make good neighbors. This has never been more true when homeowners start encroaching on your commercial property, possibly gaining some degree of ownership rights. This article addresses the problem and offers...

Attaching Electronic Fund Transfers.
April 7, 2005... Originally published in the New York Law Journal on March 28, 2005. Assume a situation in which Party One in foreign country A asks his local bank to make a payment to the local bank of Party Two in foreign country B. Assume further that...

Using Letters of Intent in Commercial Real Estate Transactions: Tool or Miscue.
April 8, 2005... Introduction Depending on the type of transaction, a letter of intent has many other names, including term sheet, memorandum of understanding, agreement in principle, binder, and commitment letter. Regardless of the name, the function is...

Technological Protection Measures on CD's.
April 8, 2005... Test-Achats, a Belgian consumer organization, filed copyright infringement claims against four leading music companies for their use of technological protection measures on various CDs. Test-Achats argued that the measures prevent consumers...

Cumulative Just Cause: How Progressive Is Your Discipline Policy?
April 8, 2005... By Laurie M. Robson (Calgary) Originally published Winter 2005 Employers often wonder whether it is possible to terminate an employee for repeated poor performance or carelessness where the breaches by the employee cover a range of...

Financial Institutions Face Liaibility If They Fail To Freeze Funds.
April 8, 2005... By Benoit M. Provost (Montreal), William S. Robertston (Toronto), David C. Whelan (Calgary), Pierre B. Cote (Montreal) Marc Jolicoeur (Ottawa), James W. Mathers (Toronto), Geoffrey Thompson (Vancouver), David A. Crerar (Vancouver), D. Ross...

Sweeping Legislative Changes for Nonprofits Move Closer to Reality.
April 8, 2005... Leadership of nonprofit, tax-exempt organizations should take particular notice of the tenor of many of the comments of those testifying on April 5, 2005 at the Senate Finance Committee Hearing on oversight of charities. Common themes expressed...

Supreme Court Allows "Disparate Impact" Lawsuits but Severely Limits Plaintiffs' Ability to Succeed in Such Suits.
April 8, 2005... In Smith v. City of Jackson, Mississippi, decided March 30, 2005, the U.S Supreme Court held that "disparate impact" lawsuits are viable under the Age Discrimination in Employment Act (ADEA) as they have long been for race, national origin and...

Nuisance Law and Agricultural Operations in Indiana.
April 8, 2005... Originally published July 2004 Blackstone taught "if a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome, this is an injurious nuisance, as...

Is Manure a "Pollutant?".
April 8, 2005... Originally published March 15, 2004 \Ma*nure"\, n. Any matter which makes land productive; a fertilizing substance, as the contents of stables and barnyards, dung, decaying animal or vegetable substances, etc. Webster's Revised Unabridged...

Borden Ladner Gervais Announces 17 New Partners.(Company Profile)
April 8, 2005... Toronto, Ontario March 14, 2005: Sean Weir, National Managing Partner at Borden Ladner Gervais LLP, one of Canada's leading national law firms, today announced the admission of 17 of the firm's associates into its partnership. "I am...

California Court of Appeal Upholds CPUC's Decisions Extending Standard Offer No. 1 QF Contracts.
April 8, 2005... In Southern California Edison Company v. Public Utilities Commission, issued April 4, 2005, the Second District California Court of Appeal upheld several decisions by the California Public Utilities Commission ("CPUC") requiring Southern...

Michigan Supreme Court Permits Introduction Of Evidence Of A Plaintiff 's Own Pretreatment Negligence As An Element Of Comparative Fault In Medical Management Disputes.
April 8, 2005... Originally published August 2004 This month the Michigan Supreme Court issued an opinion which will be of great assistance to health care administrators and practitioners in the proportioning of fault between plaintiffs and defendants for...