Mondaq Business Briefing articles from August 2005

Mondaq Business Briefing archives from August 2005

EAT clarification on what amounts to a disability.(United Kingdom. Employment Appeal Tribunal)(a case of Edmund Nuttall Ltd.)
August 1, 2005... The EAT (Employment Appeals Tribunal) has today given judgment in the case of Edmund Nuttall Limited v Butterfield, and given useful guidance on what constitutes a disability under the Disability Discrimination Act 1995. The case concerned the...

OFT dawn raids 22 construction firms.(investigation of United Kingdom. Office of Fair Trading)
August 1, 2005... The OFT (Office of Fair Trading) has dawn raided 22 construction companies in Nottinghamshire, Leicestershire, Derbyshire and South Yorkshire concerning allegations of collusive tendering. This latest investigation is one of many (see our...

When a Disclosure may not be Voluntary: Liability for Trade Violations and Sarbanes-Oxley.(international trade regulation)
August 1, 2005... Article by Leigh T. Hansson, Gregory S. Jacobs and Natalie R. Linendoll Companies with international trade operations are required to navigate a complex web of laws and regulations, governed by a multitude of government agencies. Corporate...

Promoting Foreign Investment: The U.S. Government is Here to Help.(Export-Import Bank of the United States, Overseas Private Investment Corp., Trade and Development Agency)
August 1, 2005... The U.S. government promotes U.S. exports to create domestic jobs and to support the international expansion of U.S. companies of all sizes through three specialized agencies: the Overseas Private Investment Company ("OPIC"), the Export-Import...

Distribution Contracts: The Paradise For Forum And Applicable Law Shopping.
August 1, 2005... Distribution contracts fall outside the categories of contracts specifically defined by the Italian Civil Code: there is no legal definition or specific regulation of distribution to be found in other statutes, as is the case in most countries....

Federal and State Regulation of Consumer Collection Practices: Traps for the Unwary Nationwide Lender, Loan Servicer, and Debt Collector.
August 1, 2005... Article by Elizabeth M. Bohn and Ari H. Gerstin Consumer protection laws regulating debt collection practices are a complex minefield of potential liability for creditors and other debt collectors. Large damage awards, provisions for...

The World Tax Advisor - July/August 2005 (Recent Asia Pacific Developments).
August 1, 2005... This article discusses international tax developments and has been prepared by professionals in the member firms of Deloitte Touche Tohmatsu. Contents Hong Kong - Court Rules on Source of Brokerage Company's Income India -...

Regulatory Reorganisation Being Examined.(committee established to review financial services)
August 1, 2005... The Bahamas Government has established a committee with representatives from all of the country's financial regulatory institutions to consider options for consolidating regulatory agencies into one or more bodies. The regulatory...

Deloitte Weekly VAT News - Week ended 29 July 2005.(European Court of Justice on Value-added tax)
August 1, 2005... Retailers - credit card handling fees not subject to VAT? Businesses that charge separate card handling fees to customers may be able to reclaim tax paid, following the High Court decision in Bookit Limited. The case, taken by Deloitte,...

International Competition Network: Converging International Merger Enforcement.
August 1, 2005... The International Competition Network (ICN) is an informal network of antitrust agencies from developed and developing countries around the world. It was launched in October 2001, with the cooperation of antirust officials from 14...

Employer Liability for Customer Harassment of its Employees.
August 1, 2005... The Ninth Circuit recently clarified that an employer can be liable under Title VII for harassment of employees by customers based upon race and national origin. The original basis for liability for employee harassment by customers was 29...

Letter from Panama (Quarterly Regional Round-Up).
August 1, 2005... The People's Servant There is an increasing awareness in Latin America of a clash between liberal democracy and populism and there is no greater proponent of the latter than Hugo Ch vez. His closest ally is Fidel Castro and he has proudly...

Be Aware - There are Immigration, Social Security, Tax and Labor Consequences for Expatriates Working in Mexico.
August 1, 2005... This article is intended as a "caution" light for companies sending or receiving an executive or technician ("expat") to perform work in Mexico. This situation may create immigration, social security, tax and labor obligations on one or more...

Split Decisions on United Airline's Site Subleases at JFK and LAX - POST IN AUGUST.
August 1, 2005... Orignally published Second Quarter, 2005 By Barbra Rachel Parlin (New York) On November 18, 2004, the United States District Court for the Northern District of Illinois overruled a prior decision by the bankruptcy court overseeing the...

Adverse Possession.(claims made by squatters)
August 2, 2005... Originally published April 2005 A recent decision of the Chancery Division of the High Court1 may have a profound effect on the law relating to claims for adverse possession of land, more commonly known as "squatters' rights". The judgment...

Second Circuit Rules "Interacting With Others" is a Major Life Activity.
August 2, 2005... Originally published June 2005 Recently, the United States Court of Appeals for the Second Circuit, in Jacques v. DiMarzio, Inc., held that "interacting with others" is a major life activity under the Americans with Disabilities Act (ADA)....

Employers May Not Refuse to Reinstate Sarbanes-Oxley Whistleblowers While Pursuing an Appeal.
August 2, 2005... A Connecticut federal court recently held, in Bechtel v. Competitive Techs., Inc., that a Connecticut technology company must reinstate two whistleblowers while it appealed a decision of the Secretary of Labor under the Sarbanes-Oxley Act. ...

Optional Inclusion in Prior Art Reference Defeats Express Exclusion of Element in Anticipation Analysis.
August 2, 2005... The U.S. Court of Appeals for the Federal Circuit affirmed summary judgment holding claims for the composition of a vitamin supplement invalid and, therefore, not infringed because the claims, which stated a requirement the composition be...

Applicant's Silence in Response to Examiner's Characterization of Claim Is Not Clear and Unambiguous Surrender.
August 2, 2005... The U.S. Court of Appeals for the Federal Circuit held that an applicant's silence in response to the unilateral statement of an examiner regarding claim scope made in stating reasons for allowance does not reflect the necessary clear and...

Legal Regime Governing Intellectual Property.
August 2, 2005... 1. Introduction Bulgarian law recognises both national and international protection and enforceability of industrial property (including patents, trademarks, service marks, geographical indications, industrial design), copyright and other...

Case or Controversy Depends on the Timing of Covenant Not to Sue.
August 2, 2005... In deciding whether the district court properly dismissed as moot the defendant's unenforceability counterclaim on the ground there was no outstanding case or controversy in light of a post-verdict covenant not to sue, the U.S. Court of Appeals...

Some Post-Amnesty Conundrums.
August 2, 2005... Now that most applicants who sought amnesty under the Amnesty Act (or, to give it its full name, The Exchange Control Amnesty and Amendment of Taxation Laws Act No. 12 of 2003) have received their amnesty approvals, many will be turning their...

Deloitte Weekly VAT News - Week ended 5 August 2005.
August 2, 2005... The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Ms Jilly Riley Deloitte Stonecutter Court 1 Stonecutter Street...

U.S. House of Representatives Proposes Sweeping Changes in the Patent Reform Act (H.R. 2795).
August 2, 2005... On June 8, 2005, U.S. Representative Lamar Smith (R.-tX) introduced H.R. 2795. the bill seeks to amend Title 35 of the United States Code relating to the procurement, enforcement, and validity of patents. If enacted, the U.S. patent system will...

Nutritional criteria: what will it mean for your products?(Food Standards Agency's nutritional profiling model )
August 2, 2005... The groundwork for the implementation of proposals first outlined in the November 2004 UK governments' White Paper 'Choosing Health' continues apace. The Food Standards Agency (FSA) is having a final consultation on a nutritional profiling...

Environment calendar - August 2005.
August 2, 2005... The environment calendar highlights key dates for proposed and existing legislation and policy and closing dates for consultation papers relating to major environment issues in the EU and England. It will provide a useful tool for...

Hong Kong Corporate Law : New Minority Shareholders' Remedies under Amended Companies Ordinance.
August 2, 2005... Introduction The Companies (Amendment) Ordinance 2004 in Hong Kong ("Amendment Ordinance") was enacted in July 2004 to improve the prospectus regime for facilitating market development (Schedule 1), modernize the registration regime for...

Country of Origin Compliance: Challenges for Government Contractors.(Federal Trade Commission)
August 3, 2005... In serving private and public sector customers, your company imports components from countries in Asia, North America, and Europe, and then combines them with various U.S. components in a facility in the United States to create a finished...

FinCEN Issues New Anti-Money Laundering Rule For Dealers in Precious Metals, Precious Stones, And Jewels.(Department of the Treasury's Financial Crime Enforcement Network )
August 3, 2005... In the aftermath of 9/11 and the war on terror, the USA PATRIOT Act called for all financial institutions, as so defined by the Bank Secrecy Act ("BSA"), to establish comprehensive anti-money laundering compliance programs. Since the BSA...

Were You Lying Then, or Are You Lying Now?(case of patent infringement)
August 3, 2005... Addressing the issue of inventorship, the U.S. Court of Appeals for the Federal Circuit reversed a decision granting summary judgment of invalidity of a patent based on contradictory declarations by the same person because a genuine issue of...

Penny-wise but Pound-Foolish: Arguing Patentability of Groups of Claims May Not be Effective.
August 3, 2005... Addressing an issue of claim construction involving reliance on prosecution history to limit a claim term, the U.S. Court of Appeals for the Federal Circuit reversed a district court decision of infringement and revised the district court's...

An NDA Holder Can Market a Generic During the H-W 180-Day Exclusivity Period.(Food and Drug Administration approves new drug application )(Teva Pharmaceutical Industries Ltd., Pfizer Inc.)
August 3, 2005... The U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court's granting of summary judgment for the U.S. Food and Drug Administration (FDA) ruling that the Hatch-Waxman amendments do not prohibit the holder of an...

The Realm of Domain Names: An Indian Perspective.
August 3, 2005... In the realm of cyberspace, when you browse a particular website on the Internet, it is actually the Internet Protocol address (IP address) that establishes the link between your computer and the particular website you are searching for. IP...

Surplus Real Estate Headaches - Is Outsourcing the Painkiller?
August 3, 2005... 'First published in the PLC Corporate Real Estate Handbook, July 2005' All businesses have real estate assets and liabilities, with real estate costs accounting for an estimated 17-20% of corporate operating costs, but many businesses fail...

It was an accident...Duty to Defend Intentional Torts in Canada.
August 3, 2005... The duty to defend intentional torts under liability insurance policies continues to preoccupy Canadian courts despite two Supreme Court of Canada (SCC) decisions released in 2000, wherein the court considered the duty in the context of the...

Advertising Liability Coverage (Or "When No Publicity Is Good Publicity").
August 3, 2005... In this age of electronic communication, the expense of defending litigation involving internet activities, particularly those involving cross-border issues, can be alarming. As a result, although most Canadian CGL policies provide "Advertising...

Hart-Scott-Rodino Thresholds to Increase.(Hart-Scott-Rodino Antitrust Improvements Act of 1976)
August 3, 2005... Overview As of March 2, 2005, certain dollar thresholds for filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "Act") will increase. The increases are pursuant to the 2000 amendments to the Act, which require the...

Canadian Securities Regulators Delay Proposed Internal Control Rule.
August 3, 2005... The Canadian securities regulators have announced that they will extend the proposed implementation schedule of Multilateral Instrument 52-111, Reporting on Internal Control over Financial Reporting,1 to give them more time to observe the...

New Tax Measures July 2005.
August 3, 2005... Helped by more than [pounds sterling]4 million in tax revenues from the burgeoning internet gaming companies, and several "one-off" property development deals, Gibraltar's fiscal accounts remain healthy and the economy continues to forge ahead....

Key Developments in Environmental Law in 2004.
August 3, 2005... Published in Lexpert CCCA/ACCJE Corporate Counsel Directory and Yearbook 2005. The year 2004 has proven to be another active year for environmental law in Canada, which continues to develop in response to international and domestic...

Not with a Bang but a Whimper: Festo and Knorr-Bremse Cases Both Resolved on Remand.
August 4, 2005... The intellectual property world has likely witnessed, within a week of each other, the swan song of two cases with lengthy, some would say tortured, histories. On June 6, the U. S. District Court for the Eastern District of Virginia, on remand,...

Pop-Up Advertising Does Not Constitute Trademark Infringement under the Lanham Act.
August 4, 2005... The U.S. Court of Appeals for the Second Circuit recently held there was no "use" of a trademark within the meaning of the Lanham Act either where a defendant marketing company used activity monitoring software that caused pop-up ads of the...

No Substantial Similarity Where Only Non-Copyrightable Subject Matter Is Used in Common.
August 4, 2005... The U.S. Court of Appeals for the First Circuit has held that a musical composition that was not sufficiently similar to a registered composition to give rise to an inference of actual copying does not infringe that composition. Johnson v....

Let us Not Mince Words on The Subject of Indirect Ownership.
August 4, 2005... Since minister Mandisi Mphalwa's embargoed briefing on the revised Codes of Good Practice under the Broad Based Black economic Empowerment Act (BEE ACT) on 24 June 2005, much has been made in the media of the purported exclusion of so-called...

OCC Permits Hedging Equity Derivatives with Unmatching Baskets.
August 4, 2005... The OCC issued an interpretive letter ("Letter 1033") permitting a national bank to hedge an equity index derivative by holding a basket of securities that do not perfectly match the derivative. The bank asserted that matching the index...

Make your opinions known: the impact of new procurement regulations on PPP/PFI.
August 4, 2005... The Office of Government Commerce (OGC) is currently consulting on the implementation of new procurement rules in the UK (The OGC's consultation papers can be found at: http://www.ogc.gov.uk./index.asp?docid=1003745 These rules will...

Bank Catches Cold from Freezing Orders.
August 4, 2005... The Principle Where a bank has been notified that a customer's account is the subject of a freezing order and yet allows money to be withdrawn from that account in breach of the order, the bank can be held liable in negligence to the party...

Difficult Implementation In Belgium Of The European Directive On The Harmonisation Of Certain Aspects Of Copyright And Related Rights In The Information Society.
August 4, 2005... On 3 March 2005, the Belgium House of Representatives adopted legislation to implement European Directive 2001/29/EC of 22 May 2001 on the harmonistion of certain aspects of copyright and related rights in the information society. The...

Latest Proposed Amendments To The Revenue Laws.(South Africa. Income Tax Act 1962)
August 4, 2005... SARS recently published a first bash of legislation to be included in the Revenue Laws Amendment Bill to be promulgated later this year. In this context the following amendments are relevant: a new definition is to be inserted in s1 of the...

Assessing the Impact of EPA's New Guidelines for Carcinogen Risk Assessment.(book by Christopher P. Davis and Russell E. Keenan)(Book Review)
August 4, 2005... By Christopher P. Davis (Goodwin Procter) and Russell E. Keenan, PH.D. (AMEC Earth & Environmental, Inc.) Originally published July 2005 In March, 2005, EPA released its final Guidelines for Carcinogen Risk Assessment (Final...

FSA Annual Public Meeting.(Financial Services Authority)
August 4, 2005... The FSA held its sixth Annual Public Meeting on Thursday 21 July. Callum McCarthy, the Chairman of the Financial Services Authority, gave the opening speech. Other speeches were given by Ann Foster, Chief of Consumer Panel, Jonathan Bloomer,...

The NLRB Blows the Lid Off Confidentiality Policies.(National Labor Relations Act)
August 4, 2005... Many employers may now be in violation of Section (8)(a)(1) of the National Labor Relations Act (NLRA) as the result of a newly released decision by the National Labor Relations Board (the Board). Most employers are aware that any rule...

Recognition And Enforcement Of A Judgement Obtained In A Foreign Jurisdiction In The Republic Of Bulgaria.
August 4, 2005... The party seeking the recognition and enforcement of a judgement rendered by a foreign court ("FCJ"), including in cases where the jurisdiction of such foreign court is based on the contractual choice by the parties to an agreement1, is...

Qualified Retirement Plans: July 2005 Developments.
August 4, 2005... Pension legislation is reported out of the Senate Finance Committee and the House Education and the Workforce Committee. The pension reform legislation working its way through Congress in recent years is called the National Employee Savings and...

BAIC Scheme of Arrangement: sanction refused.(British Aviation Insurance Company)
August 4, 2005... Judgment in the case of the British Aviation Insurance Company Limited ("BAIC") was given on 21 July 2005. The judge refused to sanction the scheme of arrangement proposed by BAIC to its creditors under section 425 of the Companies Act 1985....

U.S. Supreme Court Upholds Use of Eminent Domain That May Benefit Private Development Projects.
August 4, 2005... Originally published July 28, 2005 The U.S. Supreme Court's decision in Kelo v. City of New London, Connecticut, 125 S. Ct. 2655 (2005), has generated extensive media attention and inspired passionate opposition. Kelo addresses the...

The Quiet Giant: Restating Lease Accounting.(standard accounting procedures)
August 4, 2005... Originally published in Shopping Center Business, August 2005, [c] 2005 France Publications, Inc. Atlanta, Georgia In recent years, businesses such as WorldCom and Enron have become synonymous with corporate malfeasance and questionable...

Recent Supreme Court Decision Will Make It Easier for Companies to Litigate Class Actions and Multi-Party Claims in Federal Court.
August 4, 2005... Originally published June 29, 2005 The Supreme Court last week handed down a ruling with significant consequences for corporations engaged in multi-party and class action litigation. The Court decided two cases that questioned whether all...

Attachment Of Goods Under The Bulgarian Law.(material evidence in litigation procedure)
August 4, 2005... This article discusses the options for requesting attachment of goods as a security for the enforcement of the court award to be issued in the litigation procedure and as a material evidence in the litigation procedure, as well as the...

Indonesian Mining 2005.
August 4, 2005... Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through - Mining 2005 (published July 2005, contributing editors Sean Farrell, Robert McDermott and WS (Steve) Vaughan). For further...

Indonesian Gas Regulation 2005.
August 4, 2005... Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through - Gas Regulation 2005 (published in July 2005, contributing editor Ulrich Scholz). For further information please visit...

The FTC's New Disposal Rule for Consumer Information Impacts Employers.
August 4, 2005... Effective June 1, 2005, the FTC's Disposal Rule requires businesses to take appropriate measures to protect consumer information from unauthorized access or use during or after its disposal.1 Who must comply? The Disposal Rule applies...

IMF Notes Strengthening Bahamian Economy, Sound Banking Sector.(International Monetary Fund )
August 5, 2005... The Bahamian economy has recovered well from the 2001-02 slowdown, achieving some acceleration of activity in 2004 even in the face of two hurricanes, according to the International Monetary Fund (IMF). The IMF also said that economic...

Changes to the UK Registered Designs system - have your say.
August 5, 2005... The UK Designs Registry, part of the Patent Office, is currently consulting on its proposed changes to the Registered Designs Act 1949 and the Registered Designs Rules 1995. The four main proposals are: to end substantive examination of UK...

Health and safety calendar - August 2005.(Brief Article)
August 5, 2005... The health and safety calendar highlights key dates for proposed and existing legislation and policy and closing dates for consultation papers relating to major health and safety issues in the UK and EU. It will provide a useful tool for...

Software Piracy - Indian Court Orders for Damages.
August 5, 2005... The recent decision of Delhi High Court in the case - Microsoft Corporation vs. Yogesh Papat & Anr., pertaining to "Piracy of Software", has once again established the resolve of the Indian Judiciary to take up Intellectual Property matters...

The Domain Name Gold Rush.
August 5, 2005... All the good ones are taken. The really good ones, that is. But they don't always stay taken. Domain names often come back onto the market. Even before they do, domain name prospectors are sifting through them to find the gold domains...

Investment Opportunities in Indian Real Estate.
August 5, 2005... FOREWORD "Undeniably tremendous" is how the Investment in Indian real estate is termed in a Price Waterhouse Coopers study. Government of India has recently allowed Non Resident Indians (NRIs) to invest upto 100% (FDI) in Housing and Real...

For Whom The Whistle Blows.(explication of labor law)
August 5, 2005... I. Introduction No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy...

U.S. Supreme Court Invalidates Use of Agins "Substantially Advances" Formula For Identifying Regulatory Takings.
August 8, 2005... The U.S. Supreme Court unanimously shut a door it opened 25 years ago, holding that the question whether a regulation substantially advances legitimate governmental interests is not a proper inquiry in a takings claim. Instead, a regulatory...

Bills Pending at the Legislative Assembly.
August 8, 2005... The Oregon Legislative Assembly is considering several bills that, if passed, could affect YOU: No Recovery if Owner Rejects Contractor's Offer to Repair SB 2525 would amend Oregon's still relatively new notice of defect law for...

Government And Contractor Ethical Lapses Subject Of GAO Review.(Government Accountability Office )
August 8, 2005... The Government Accountability Office ("GAO") has taken note of significant lapses in ethical and procurement integrity in Department of Defense ("DOD") contracting. In a recent report, "Defense Ethics Program: Opportunities Exist to Strengthen...

New SEC Rules Streamline Securities Delisting and Deregistration.(Securities & Exchange Commission (US government))
August 8, 2005... Originally published July 29, 2005 The SEC has issued final rules permitting both national securities exchanges and issuers, under certain circumstances, to delist securities from trading on a national securities exchange and/or deregister...

Recipients of Controlled Foreign Corporation Dividends Should Consider California Ramifications.
August 8, 2005... Originally published July 26, 2005 Recipients of dividends from controlled foreign corporations under Internal Revenue Code Section 965 should consider the ramifications of state income tax laws regarding dividend exclusions or deductions...

Do Your Insurance Policies Cover 21st Century Risks?
August 8, 2005... Originally published July 2005 Traditional insurance policies are well designed to cover slips, falls, and fires. But are these the greatest risks businesses face? Dependence on technology, networked computers and the Internet has...

Fourth Circuit: No Waiver or Release of FMLA Claims without DOL or Court Approval.(Department of Labor)(Family and Medical Leave Act of 1993)
August 8, 2005... Originally published July 26, 2005 Without prior Department of Labor (DOL) or court approval, a waiver or release of an employee's prospective or retrospective FMLA claim is now unenforceable in Maryland, Virginia, West Virginia, North...

NASD Issues Guidance to Arbitrators on Legal Issues, Opinion Writing, and Discovery Sanctions.(National Association of Securities Dealers)
August 8, 2005... Originally published June 29, 2005 The President of NASD Dispute Resolution, Inc., Linda Feinberg, issued guidance to NASD arbitrators on a variety of subjects of potential importance to the industry during a conference call on June 28,...

California Supreme Court Addresses "Sexual Favoritism" in the Workplace.
August 8, 2005... The California Supreme Court recently ruled that an employee may establish a prima facie case of sexual harassment under the California Fair Employment and Housing Act (FEHA) by demonstrating that widespread sexual favoritism was severe or...

New SEC Rules for Securities Offering Reform.(Securities and Exchange Commission)
August 8, 2005... In a recent release1 (the "Final Release"), the Securities and Exchange Commission (the "SEC") adopted numerous changes to its rules that are intended to modify significantly the registration, communications and offering processes under the...

New 21/2 Month Grace Period Reduces "Use-It-Or-Lose-It" Risk Under Flexible Spending Account Plans.
August 9, 2005... On May 18, 2005 the Internal Revenue Service issued a Notice which permits sponsors of flexible spending account plans ("FSA plans") to extend, by up to 21/2 months after the end of a plan year, the period during which employees may incur...

Pay Up or Surrender: The Seventh Circuit Puts Teeth Back into Section 1110.
August 9, 2005... Originally published July/August 2005 The bankruptcy laws of the United States have long provided special benefits to those who lease, finance or conditionally sell transportation equipment such as airplanes, trains and related parts to...

Financial Contract Provisions of New Bankruptcy Legislation.
August 9, 2005... Originally published July/August 2005 President George W. Bush gave his imprimatur to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the "Act") on April 20, 2005, thereby effecting the most sweeping changes to U.S....

Advertising Scam "Search Engine Data Merging".
August 9, 2005... Online Advertising Scam "Search Engine Data Merging" Downloading free Web software to do keyword searches in your Web browser address bar can get you more Online advertising than what you asked for. Unethical spyware/adware companies...

An Avian Influenza Pandemic? Consider Your Business Implications.
August 9, 2005... Recently, two highly respected journals, Foreign Affairs and Nature, published a series of articles about the potential for a devastating avian influenza pandemic. The purpose was to assist international health officials spur preparations by...