Mondaq Business Briefing articles from December 2003

Mondaq Business Briefing archives from December 2003

Post-Insolvency Set-Off: South Africa Moves Towards International Best Practice.
December 1, 2003... Article by Clinton Van Loggerenberg and Shawn Barnett Globalisation and the rapid expansion of international trade has highlighted the need for uniform and consistent insolvency legislation across international markets. South Africa will...

Understanding The Real Value Of Relationship Marketing.
December 1, 2003... Relationship marketing uses event driven tactics, but treats marketing as a process over time rather than single unconnected events. This simple concept could offer a guidepost in developing and implementing your business marketing strategy....

Political Risk Insurance: Another Test.
December 1, 2003... Executive summary This briefing tracks recent developments in political risk insurance, looking specifically at claims arising in the wake of Argentina's economic crisis in 2001. Investors and banks have lost an estimated $20bn in...

Second Stage Outsourcing: Keys to Success in Switching Suppliers.
December 1, 2003... Article by Brad Peterson (Chicago), Mark Prinsley (London), and Michael Kalachman (Chicago) Switching from one outsourcing supplier to another involves the effort and risk of both terminating and entering into an outsourcing engagement....

Can I Send A "Cold" Commercial E-Mail Or Not?(UK)
December 1, 2003... The purpose of article is to set out the legal position we believe exists at present and until new regulations regarding e-commerce and email activity come into force on 11th December. We also take a look at those forthcoming regulations. ...

Direct Marketing Restrictions in the E.U.
December 1, 2003... New rules regarding privacy and the use of information for marketing purposes are creating difficulties for marketers in the E.U. as well as the U.S. (See article Direct Marketing Restrictions in the U.S., for a detailed description of recent...

A Tribal Executive's Guide: Deferred Per Capita Plans.
December 2, 2003... Article by Kathleen M. Nilles and Ann M. Kim Executive Overview This article addresses a topic that has received increased attention from tribal members, financial service providers and tribal executives: How to offer tribal members...

European Labour Law Update.
December 2, 2003... This article was prepared by lawyers from Freshfields Bruckhaus Deringer CONTENTS THE NETHERLANDS - Payment of wages in case of sickness; proposed wage freeze SPAIN - Terminating employment under a collective redundancy procedure...

Employment Protections in U.K. Outsourcing Transactions.(Brief Article)
December 2, 2003... Background Council Directive 2001/23/EC of 12 March 2001 (which replaces earlier Directives) is a European Directive which is designed to safeguard the rights of employees if the business in which they work is transferred to a new owner....

Festo Alters Scope of Patent Equivalents-Again.
December 2, 2003... In the ninth judicial decision in a lawsuit that was originally filed about 15 years ago, the U.S. Court of Appeals for the Federal Circuit, sitting en banc and after sifting through no less than 15 amicus briefs, laid down a new set of rules...

Supreme Court Decision Does Not Alter $50 Million Punitive Damages Award.
December 2, 2003... The U.S. Court of Appeals for the Federal Circuit has affirmed its 2001 decision that approved a $50 million punitive damages award against DeKalb Genetics Corporation. The Federal Circuit previously affirmed a verdict that DeKalb fraudulently...

Elco Bank & Trust Company.
December 2, 2003... Elco Bank and Trust Company Limited specialises in the provision of a comprehensive range of offshore corporate services from its office in Nassau, Bahamas. The company brings together a multi-disciplined team of qualified professionals...

The First ECJ Interpretation of the Data Privacy Directive.
December 2, 2003... Introduction On Nov. 6, 2003, the European Court of Justice (ECJ) handed down its first judgment interpreting the substantive provisions of the European Data Privacy Directive (Directive 95/46/EC). The judgment (Case C-101/01, In re Bodil...

Employee Relations November 2003.(Australia)(Editorial)
December 3, 2003... Contents Editorial Conflict in test for determining if agreements can be certified One of the prerequisites for the certification of an agreement under the Workplace Relations Act 1996 (Cth) is that the agreement must concern...

Congress Extends Fair Credit Reporting Act Preemption, Imposes New Requirements on Credit Bureaus and Users.
December 3, 2003... The House and Senate passed H.R. 2622, the "Fair and Accurate Transactions Act of 2003" ("FACTA"). The President is expected t o sign the bill into law this week. The major impetus for the legislation has been the scheduled expiration at the...

GONE IN A PUFF: The End of Tobacco Advertising in India.
December 3, 2003... By Mohit Kapoor and Souvik Ganguly This article was originally published in The Economic Times (Corporate Counsel section), a leading business daily in India, on June 14, 2003. Tobacco advertising does more than offer a nicotine high;...

Traders and External Agentes.
December 3, 2003... Summary Decree-Law 184/2003, of 20 August, establishes the conditions under which traders and external agents may develop their activity in Portugal. Decree-Law 184/2003, of 20 August, establishes the conditions under which traders...

New Investment Contracts.
December 3, 2003... Summary: Decree-Law 203/2003 of 10 September 2003 sets a common legal framework for foreign investment contracts ending with differences given to foreign and national investment Aiming to adapt the Portuguese legal system to the recent...

Arbitration: It's Here To Stay.
December 3, 2003... The cost of access to the courts has long been an issue for the practicing bar, as well as advocates for the poor. A variety of programs have been instituted to address this issue. Efforts to provide lawyers to the poor at taxpayers' expense in...

Labor Procedure Reforms.(Ecuador)(Brief Article)
December 3, 2003... With dollar as the legal currency in Ecuador, production has to be more competitive. One of the main points to be analyzed for that goal is labor area. Labor Procedure Code has been liberalized as an effort to increase commerce and competition...

Introduction To The Spanish Legal Banking Framework.(Industry Overview)
December 3, 2003... Banking industry in Spain represents, in relation to the size of the Spanish economy as a whole, a quite large sector which has increasingly grown during the last 10-15 years, prompted, amongst others, by a few remarkable mergers between some...

Spanish Exchange Control and Money Laundering Legislation Reformed.
December 3, 2003... On July 5, 2003, Law 19/2003 on the legal system governing capital movements and financial transactions with other countries and on certain measures for preventing money laundering (the "Law") was published in the Official Gazette. This...

How Commercial Landlords Can Position Themselves To Deal With Current Market Conditions.
December 3, 2003... With the uncertainty of the duration of the downturn in the commercial leasing market, the vast amount of available first and second generation space and the increasing number of tenant bankruptcies, how can landlords position themselves to...

A Strategy For Revitalization.(downtown Miami)
December 3, 2003... For some time, downtown Miami has lacked market-rate residential housing, a critical component to revitalizing the urban core. A downtown that could bustle with activity is desolate between 5:00 P.M. and 7:00 A.M. on weekdays and remains...

The Current State Of Zoning Laws In Miami-Dade County: Ramifications Of Miami-Dade County V. Omnipoint Holdings, Inc.
December 3, 2003... Over the past two decades, Miami-Dade County has reasserted itself as one of America's foremost regions of urban development. From the rapidly redeveloping downtown district to the sights and sounds of South Beach, new construction and...

Brazilian Private Equity Funds.
December 4, 2003... On 16 July 2003, the Brazilian Securities and Exchange Commission ("CVM") laid down Instruction No. 391 that makes provisions on the organization, operation, and management of the so called private equity funds. These funds are closed...

Executive Countdown to A Day-For Executives and Other Senior Employees.
December 4, 2003... Welcome to the first in a series of bulletins detailing the impact of the coming changes in pension legislation on high earners - executives and other senior employees. 6 Apri1 2005, or A Day, is expected to see the biggest pension shake up in...

Residence In Malta: Tax Advantages in the Sun.
December 4, 2003... Malta: Mediterranean weather, high standard of living, minimal taxation, no minimum residency requirement - the best option world-wide for establishing your residence Malta and its islands The Republic of Malta consists of three...

Presumption of Surrender Applies When Broader Claim Canceled in Favor of Narrower One.(Deering Precision Instruments v. Vector Distribution Systems)
December 4, 2003... The U.S. Court of Appeals for the Federal Circuit has ruled that canceling broader claims and retaining narrower ones re-written in independent form is effectively a Festo-type narrowing amendment and presumptively results in no range of...

New Festo Decision Applied to Preclude Doctrine of Equivalents.
December 4, 2003... In a post-Festo decision, the U.S. Court of Appeals for the Federal Circuit affirmed a district court decision and held a plaintiff patentee was precluded from proving infringement under the doctrine of equivalents due to prosecution history...

Similar Claim Terms May Have Different Meanings-It All Depends.
December 4, 2003... The U.S. Court of Appeals for the Federal Circuit reiterated that a claim term should be construed according to its plain language and ordinary meaning and should be limited in scope only if a clear and unmistakable disavowal is manifested by...

Method of Treatment Interpreted to Include a Pharmaceutical Formulation of the Claimed Compound.
December 4, 2003... In a case turning on claim construction, the U.S. Court of Appeals for the Federal Circuit affirmed a lower court's ruling of infringement construing a claim directed to a treatment for bone reabsorption and urolithiasis to encompass the use of...

Test Results Showing Invention Failed to Satisfy Commercial Standards Are Not Material to Patentability.
December 4, 2003... The U.S. Court of Appeals for the Federal Circuit has vacated a district court's summary judgment of lack of enablement and reversed its finding of inequitable conduct, holding instead that an applicant does not necessarily have a duty to...

"Substantial Evidence" Includes That Not Relied on by the Board.
December 4, 2003... In a case involving an interference between a patent and an allowed patent application, both directed toward the production of human fibrinogen protein in non-human milk, the U.S. Court of Appeals for the Federal Circuit affirmed the decision...

Written Description Requirement Not Satisfied Under Principles of Inherency.
December 4, 2003... In affirming an award of priority by the U.S. Patent and Trademark Board of Appeals and Interferences (the Board), the U.S. Court of Appeals for the Federal Circuit held that a product that is inherently produced by a disclosed process does not...

Double Your Pleasure: "Doublemint" Mark Refused CTM Registration.
December 4, 2003... In a case relating to the test to be applied in deciding whether a work mark is capable of distinguishing the goods of one from another, the European Court of Justice (ECJ) reversed the lower court ruling that mark "Doublemint" was not...

Functionality of a Design Trademark Determined in Part by Availability of Alternatives.
December 4, 2003... Affirming a ruling that the shape of the plaintiff's bottle was functional and its registered mark on the design was invalid, the U.S. Court of Appeals for the Ninth Circuit looked to the existence of alternatives to help determine whether the...

Old Age Pension Bill Adopted By Cabinet.(Brief Article)
December 4, 2003... The Old Age Pension Bill adopted by the cabinet on December 3 moves from the present system of taxing pensions by restricting relief on the contributions to one of full relief now and full charge later. The cabinet has adopted an Old Age...

Bundesrat Passes Investment Fund Modernisation Bill.(Brief Article)
December 4, 2003... The Bundesrat passed the Investment Fund Modernisation Bill in its November 28 sitting. Formal enactment into law is expected to follow shortly. The Investment Fund Modernisation Bill passed by the Bundesrat on November 28 is intended to...

The Risks of Being a Director.(Industry Overview)
December 4, 2003... Despite the intensity of continuing public discussion of corporate governance issues, remarkably little attention has been paid to the liability position of individual directors. We believe this will change. Directors are increasingly realizing...

Major Consumer Legislation Adopted In Congress.
December 4, 2003... In This Article Spam Legislation Adopted in Congress House and Senate Reach Agreement on Credit Reporting and Identity Theft Legislation - FCRA Preemption Provisions Extended Permanently With Congress set to adjourn for the year,...

Mallesons Stephen Jaques Strengthens Competition Practice With Appointment Of Special Counsel.(Brief Article)
December 4, 2003... Mallesons Stephen Jaques has announced the appointment of Kathleen Harris as special counsel, to the firm's national competition practice. Ms Harris has recently returned from the United States where she was the Deputy Bureau Chief of the...

Victoria's Green Paper On Water Reform.(Australia)
December 4, 2003... Article by Mr Alan Rosengarten, Mr Lawrence Baker, Ms Katherine Lake and Ms Joanne Draper. Introduction In August this year, the Victorian Government released its detailed Green Paper on water reform entitled Securing our Water Future...

'Green' Claims Must Not Be Misleading.(Australia)(Brief Article)
December 4, 2003... Article by Mr John Taberner and Ms Emily Sunman The Federal Court held in November 2003 that an air-conditioning supplier engaged in false, misleading and deceptive conduct through representations about the environmental benefits of its...

SEC Adopts Standards Relating to Listed Company Audit Committees.
December 4, 2003... Article by Mr David S. Rosenthal, Mr Martin Nussbaum and Mr Peter C. Bartolino Summary On April 9, 2003, the Securities and Exchange Commission (the "SEC") published final rules regarding standards for listed company audit committees,...

Electronic Data Discovery: Duty To Preserve Evidence.
December 4, 2003... Article by Ms Kerry A. Brennan, Mr Charles R. Ragan and Ms Amy C. Gross As businesses increasingly communicate, operate and store information electronically, they face new challenges in complying with the obligation to preserve electronic...

Tax Amendment Bill 2003 Passes <I>Bundesrat</I>.
December 5, 2003... The Bundesrat has accepted the Tax Amendment Bill 2003, the least controversial of the tax bills presently in the legislative pipeline. Its entry into force for 2004 is now certain. The Bundesrat gave its all important assent to the Tax...

Disclosure Of Security Breaches Required By New California Privacy Legislation.
December 5, 2003... Companies that maintain electronic personal information regarding California residents have a new privacy compliance obligation effective July 1, 2003. In response to hackers breaking into the state of California's payroll database containing...

Diversification for Growth: What the Russian Economy Needs.(Industry Overview)
December 5, 2003... By Toby T. Gati, Senior International Advisor President Putin has seized upon the global need for more diverse supplies of energy to meet one of his country's highest priorities: Russia's integration with the global economy. As U.S.,...

United States And Japan Sign New Income Tax Treaty.
December 5, 2003... Article by Mr William C. Bowers, Mr William L. Burke and Ms Heather Bridgid Conoboy On November 6, 2003, the United States and Japan signed a new income tax treaty to replace the 30-year-old existing treaty and recognize JapanEs status as...

Settling Victorian Disputes Early: English Tactics Avoid The Ruck And Maul.
December 5, 2003... Article by Ms Bronwyn Lincoln and Ms Joanna Harris How often does a practitioner come across a litigant who is satisfied with the time and cost that it takes to obtain a resolution of their dispute in the court system? Not often. The...

Effective Specification Drafting - The Case Study Based On A Windsurfer Patent.
December 5, 2003... Introduction Will potential licensees and competitors respect a patent and will it survive opposition, revocation or infringement proceedings? The time and effort spent considering such questions in the run-up to and during litigation...

Effective Specification Drafting - The Case Study Based on A WindSurfer Patent (continued).
December 5, 2003... Technical features - I - identification of a single novel feature In most cases the applicant will require the broadest available Protection17, and for that purpose it will usually be appropriate to file main independent claims based on a...

Joint Ownership Of Copyright By Collaborators.
December 8, 2003... For collaborators, a tempting and seemingly easy to live with solution appears to be joint ownership. But is it really all that effective? In this article, we briefly look at some difficulties. Who owns the copyright? In general, the...

New Tax Regime Applying to Real Estate Companies Listed in France: Recent Comments by the French Tax Authorities.
December 8, 2003... Originally published October 24, 2003 Article by Paris Partners Xavier Renard and Pierre Descheemaeker and associate Olivia Rauch-Ravise Article 11 of the Finance Law for 2003, codified under Article 208-C of the French Tax Code (FTC),...

The Impact Of The Sarbanes-Oxley Act On Nonpublic Companies.
December 9, 2003... For the most part, the sweeping Sarbanes-Oxley Act of 2002 (SOXA) applies only to "issuers," i.e., companies that must file periodic reports with the U.S. Securities and Exchange Commission (SEC). The changes intended by the new law are so...

The Rome Convention Re-visited - A Cap on the Price of Terror?
December 9, 2003... Fears of widespread industry collapse in the wake of 9/11 have, so far, proved unfounded. But how would the airlines and their insurers cope with another such catastrophe? As the Montreal Convention 1999 introduces a new regime to govern...

What's Left of Prosecution History Estoppel: The Next Chapter of <i>Festo</i>.
December 9, 2003... By Bruce T. Wieder & Catherine B. Richardson The scope of equivalents available to a patent owner under the doctrine of equivalents has long been limited by the doctrine of prosecution history estoppel (PHE), but determining how PHE limits...

Importing Data Does Not Infringe U.S. Process Patents.
December 9, 2003... In Bayer AG v. Housey Pharmaceuticals, Inc., No. 02-1598 (Fed. Cir. Aug. 22, 2003), the Court of Appeals for the Federal Circuit addressed the question of possible infringement under 35 U.S.C. s. 271(g) by research not protected by the "safe...

When Is a Claimed Numerical Value Qualified by "About" Definite?
December 9, 2003... Patents often have claims that recite numerical values qualified by the term "about" to enlarge the claims' scopes. Since measured numerical values can vary considerably under different test methods and conditions, how does one skilled in the...

SEC Adopts Rules Mandating Electronic Filing and Website Posting of Forms 3, 4 and 5.
December 9, 2003... Pursuant to Section 403 of the Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley Act "), the Securities and Exchange Commission (the "SEC") has promulgated final rules requiring the electronic filing of beneficial ownership reports on Forms 3, 4...

Mayer, Brown, Rowe & Maw LLP and ICI Join Forces in Award-Winning Antitrust & Competition Training.
December 9, 2003... Imperial Chemical Industries PLC ("ICI") the global paints, foods, fragrances and personal care company and Mayer, Brown, Rowe & Maw LLP ("MBR&M") the global law practice are pleased to announce their co-operation in producing Keeping Ahead of...

Montreal Convention now in force.
December 9, 2003... As if you hadn't realised, the Montreal Convention 1999 has of course come into force since our last issue. From 4 November 2003 it applies in the first 31 States Party. At the time of writing, Saudi Arabia and Bulgaria have become the 32nd and...

Montreal Convention 1999: EU Ratification.
December 9, 2003... Since the European Union signed the Montreal Convention in 1999, Community institutions have been trying to secure the unusual step of simultaneous ratification by all Member States and by the Community. This has, of course, run parallel with...

Aircraft Maintenance: Commercial Court ruling on ETOPS compliance.
December 9, 2003... Sabena Technics SA v Singapore Airlines Limited, 11 June 2003, Commercial Court A recent unreported Commercial Court decision has illustrated difficulties which may arise on the drafting and assignment of a "power by the hour" engine...

September 11 Litigation Set To Continue In The US.
December 9, 2003... As the insurance markets on either side of the Atlantic will be only too aware, litigation following the 11 September terrorist attacks in the US is continuing and expanding at an alarming rate. This short summary of recent events can only...

Political Agreement on EU Mandatory Insurance Proposals.
December 9, 2003... When we reported on this proposed legislation in our Autumn issue of BLG Aerospace News, the European Commission had just put forward a revised proposal in respect of which serious questions arose as to whether it would achieve its apparent...

Ground Handling in China - Investors Beware.(Industry Overview)
December 9, 2003... The airline industry is one of those industries where standard terms of doing business are commonly used. One of the most widely used standard contracts in the airline industry is IATA's Standard Ground Handling Agreement ("SGHA") which sets...

Public Interests and the Protection of Intellectual Property Holder Rights in the TRIPS Agreement and the Socialist Republic of Vietnam.
December 9, 2003... By Tran, Thi Lan Anh, LLM. International and European Business Law Introduction The Socialist Republic of Vietnam is largely considered an agricultural economy with a population of approximately 76 million. After reunifying in 1975,...

MIBEL: the first set of rules.
December 9, 2003... Summary Decree-Law 185/2003 contains the first set of rules aiming at the progressive liberalisation of the Portuguese electricity market and its adjustment to the Iberian Decree-Law 185/2003 of 20 August contains the first set of...

Lei de Gestao Hospitalar.
December 9, 2003... Sum rio: 1. A Lei n.s. 27/2002, de 8 de Novembro, aprovou o novo regime de gestao hospitalar, introduzindo alteracoes a Lei n.s. 48/90, de 24 de Agosto. 2. A Resolucao do Conselho de Ministros n. s. 15/2003, de 5 de Fevereiro de 2003,...

New Insider Reporting Obligations for Equity Monetizations.
December 9, 2003... This article was written by A.Timothy, T.Baron and Tania M. Fecko Originally published in June 2003 The Canadian Securities Administrators (the "CSA") have issued a Notice of Request for Comments 1 on a proposed new rule requiring the...

Ontario Tables New Legislation Confirming Limited Liability of Unitholders of Publicly Traded Trusts.
December 9, 2003... This article was written by A.Timothy and T.Baron Originally published in July 2003 On May 22, 2003, the Trust Beneficiaries' Liability Act, part of Bill 41 (The Right Choices Act (Budget Measures)), was introduced in the Ontario...

Unfinished Environmental Business and the 2003 Ontario Election (The Waste Diversion Act, 2002).
December 9, 2003... In June, 2002, Ontario's Tory government brought into force the Waste Diversion Act, 2002) legislation creating a model for product stewardship and producer responsibility for waste. The new legislation (originally introduced as Bill 90)...

Architects' Duties.(in Singapore)
December 9, 2003... STATUTORY DUTIES An architect is expected to have a reasonable working knowledge of laws and legislation which affects him in the discharge of his duties as an architect. The following are the principle legislation governing design and...

New Law Extends Fair Credit Reporting Act Preemption, Imposes New Requirements on Credit Bureaus and Users.("Fair and Accurate Transactions Act of 2003" signed into law)
December 10, 2003... On Thursday, December 4, 2003, the President signed into law the "Fair and Accurate Transactions Act of 2003" ("FACTA"). This Financial Services Alert article emphasizes the provisions of FACTA that most significantly affect lenders and other...

Ethics In International Arbitration.
December 10, 2003... There is a psychological condition that sometimes overtakes travellers. They feel invincible in a foreign country, as though, being away from home, the normal restraints on their conduct no longer apply. Any rational observer would know that...

Special Investigation Into Certain Practices Of Skandia Insurance Company (Ltd).
December 10, 2003... 1.BACKGROUND Recently, Skandia Insurance Company Ltd. (Skandia) has been the subject of a media debate about the findings from independent investigative panels. At the Annual General Meeting for Skandia Insurance Co Ltd. (parent...

Massachusetts Court Holds Employee's Non-Compete Agreement Cannot be Assigned to Successor Corporation.
December 10, 2003... When acquiring a business, successor companies desire the ability to enforce their predecessors' restrictive covenants, such as non-competition, non-solicitation, and confidentiality agreements, with present and past employees, in order to...

Individual Employee Liability Under M.G.L. c. 151B.(Massachusetts' anti-discrimination statute)
December 10, 2003... The Full Commission of the Massachusetts Commission Against Discrimination ("MCAD") recently outlined the circumstances under which an individual employee may be held liable for discrimination under M.G.L. c. 151B, Massachusetts'...

The Expanding Definition of "Supervisor" Creates Increased Risk of Liability to Employers.
December 10, 2003... Employers have known for years that those managers vested with authority to hire, fire, promote, demote, transfer or discipline employees (i.e., undertake "Tangible Employment Actions") place their companies at risk of legal liability if the...

California Continues Its Crusade in Enacting Employee-Friendly Law.
December 10, 2003... COBRA Coverage Extended to 36 Months. Earlier this year, California extended continued healthcare coverage for employees by passing Assembly Bill 1401 ("AB 1401" or "Cal-COBRA"). The Cal-COBRA provisions are effective for individuals who...

New Jersey Decision Highlights Potential Pitfalls of Requiring Employees to Sign Non-Compete Agreements.
December 10, 2003... The law regarding restrictive covenants such as non-competition and non-solicitation provisions is highly complex, state-specific and ever evolving. As a result, employers find it difficult to achieve any level of comfort that such covenants...

Listing In Singapore.
December 10, 2003... Introduction 2003 has been an absolute boom year for the local initial public offer ("IPO") market. In the first half of the year, Singapore was in fact the world's fastest growing market for new offerings. This boom in the market was...