Mondaq Business Briefing articles from December 2007

Mondaq Business Briefing archives from December 2007

The Cost of Carbon Capture And Storage - Can We Afford It?(carbon capture and storage)
December 3, 2007... By Chris Staples and Louise Storer "When written in Chinese, the word 'crisis' is composed of two characters - one represents danger, and the other represents opportunity." John Fitzgerald Kennedy (35th US President (1961-63),...

Software Off-The-Shelf - It's A Wrap Trap.
December 3, 2007... These days software supply options abound, but by far the most common choice remains an 'off-the-shelf' package with its take-it-or-leave-it licence. But before you accept those standard terms and conditions have you ever stopped to wonder what...

Federal Court Holds Hearing On Challenges To The Legal Arizona Workers Act.
December 3, 2007... In our July 2007 ASAP Newsletter, Arizona Adopts Nation's Strictest Workplace Law to Assure Employees Are Authorized to Work, we informed you of the recently enacted Legal Arizona Workers Act. Arizona associations and organizations have filed...

Risks In Accidentally Disclosing Privileged Documents.
December 3, 2007... A recent decision has highlighted the risks of inadvertently disclosing privileged documents to the other side. Even though it was accepted by both parties that the document was privileged and was disclosed by mistake, the court was...

Mobility vs Redundancy: Invoking Mobility Obligations In Potential Redundancy Situations.
December 3, 2007... The recent Court of Appeal case of Home Office v Evans [2007] EWCA Civ 1089 held that an employer was entitled to choose to invoke its employees' contractual mobility obligations rather than follow a redundancy procedure. The claimants...

Pension Schemes And Investment Management: Developments In VAT.(Value added tax )
December 3, 2007... UK pension schemes are currently charged VAT on investment management fees when they invest using segregated rather than pooled funds. However, since the European Court's decision in the JP Morgan case ( Case law developments: JP Morgan ...

Chicago Adds New Taxes for 2008.
December 3, 2007... The City of Chicago has increased a number of its taxes. Of note, effective January 1, 2008, the city is increasing its Liquor tax, expanding its Hotel tax, changing the rate of its Leasing tax, increasing the Telecommunication tax surcharge...

CMS Proposes Final Medicare E-Prescribing Standards.
December 3, 2007... On November 16, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule to implement final eprescribingstandards for the Medicare Part D program (72 Fed.Reg. 64900). Any prescriber or dispenser who electronicallytransmits...

Commercial Star Trusts.
December 4, 2007... Uses Of Star Trusts For Holding Shares In Corporate Entities Introduction The Special Trusts (Alternative Regime) Law, 1997 (the "STAR Law") was introduced in late 1997 and is now incorporated into Part VIII of the Trusts Law (2001...

Final Regulations Issued Regarding Qualified Default Investment Alternatives.
December 4, 2007... Overview The U.S. Department of Labor (the "DOL") recently finalized a regulation (the "Final Regulation") regarding a safe harbor under the Employee Retirement Income Security Act of 1974, as amended ("ERISA") for the investment of plan...

Whose Book Of Business Is It, Anyway? Confusion Reigns On "Ownership" Of Investment Firm Client Lists.
December 4, 2007... There are few, if any, legal issues affecting the investment industry that are more cloudy and less certain than whether investment firm clients belong to the investment advisor or to the investment firm.1 And there are arguably few issues more...

California Amends Notice Of Security Breach Law To Include Medical And Health Insurance Information.
December 4, 2007... California Governor Arnold Schwarzenegger recently signed legislation amending California's landmark notice of security breach law. Though the California law was the first of its kind in the nation, other states already had passed more...

Federal Courts Split Over Application Of Supreme Court's Wetlands Decision.(Case overview)
December 4, 2007... On October 24, 2007, the Eleventh Circuit Court of Appeals vacated a criminal water pollution conviction because the definition of "navigable waters" given to the jury was inconsistent with the definition articulated by the United States...

Wisconsin District Court Issues Important NSR Case.
December 4, 2007... On November 7, 2007, the United States District Court for the Western District of Wisconsin issued a far-reaching New Source Review (NSR) decision that could have significant ramifications for utilities and other industries nationwide, but...

The Supreme Court Of Canada Rules That Collective Bargaining Is Protected By The "Charter".
December 4, 2007... In a landmark decision widely heralded as one of the greatest victories of the labour movement in recent memory, the Supreme Court of Canada held on June 8, 2007 that collective bargaining is a fundamental right protected by the Canadian...

Tips For Enhancing The Enforceability Of Restrictive Covenants.
December 4, 2007... Covenants in restraint of trade, such as confidentiality, non-solicitation and non-competition covenants, are presumed to be unenforceable as against public policy. However, it is possible to rebut this presumption by showing that the...

High Court Upholds Direct Line's Successful Opposition To Mouse On Wheels Mark.(Case overview)
December 4, 2007... Esure Insurance Ltd v Direct Line Insurance plc [2007] EWHC 1557 (Ch) (Lindsay J), 29 June 2007 The High Court upheld on appeal Direct Line's successful opposition to a trade mark application for a computer mouse on wheels in relation...

De-Tariffication - The General Insurance Councils Minimum Standard Wordings.
December 4, 2007... In previous articles we have reported on the proposed de-tariffing of the Indian general insurance market. As of 1st January 2007 the IRDA (the Indian insurance market regulator) freed pricing within certain parameters, but Insurers were to...

Trade Mark And Design Searches.
December 4, 2007... Introduction Whenever a new launch is proposed, whether it is for a product, brand, business name or an advertising campaign, there is always a risk that someone else is already using an identical or a similar name or design. If so, then...

Lawyers of the Future.
December 4, 2007... Steve Blundell of Gracechurch Consulting explains how a panel of experts envisages the law firm of the future. Just before the Second World War, an American by the name of Douglas MacGregor published a seminal paper contrasting the...

Jacobsen V. Katzer: A New Decision Affecting Open Source Licensing.(Case overview)
December 4, 2007... The District Court for the Northern District of California recently ruled in Jacobsen v. Katzer, No. 3:06-cv-01905 (N.D. Cal. Aug. 17, 2007), that the defendant's alleged failure to adhere to the provisions of an open source license, by...

HSE Offshore Oil & Gas KP3 Report Issues A Warning To The Industry.(United Kingdom - Health and Safety Executive )
December 4, 2007... The HSE offshore Oil & Gas division have delivered the results of their three-year investigation into the safety and integrity of offshore installations and the equipment on them. The investigation, which involved the inspection of almost 100...

PI Insurance: Scope Of Cover And Effect Of Contractual Limitation Of Liability.
December 4, 2007... Judgments have recently been handed down in two cases arising from the same facts. The high court considered two issues: (a) Contractual caps on liability occurring in standard term and conditions of construction sub-contracts; and (b)...

Reinsurance: Claims Co-Operation Clauses.
December 4, 2007... The recent Court of Appeal decision in AIG Europe v Faraday focused on the interpretation of "loss" and "knowledge" in Claims Co-operation Clauses ("CCCs"). The main purpose of a CCC is to ensure that reinsurers are told about matters that may...

U.S. And E.U. Non-Competition Agreements Compared And Contrasted.
December 4, 2007... With employers operating, and employees working, in the global economy, knowing whether non-competition agreements will be enforced in other jurisdictions is essential for both those seeking to enforce and those likely to be subject to...

SEC And Federal Reserve Board Issue Final "Push-out" Rules.(United Kingdom - Health and Safety Executive (HSE))
December 4, 2007... The SEC and Federal Reserve Board recently adopted a single set of final rules that implement certain of the exceptions for banks from the definitions of "broker" and "dealer" under the Securities Exchange Act of 1934. These final rules do not...

Major Changes To UK Immigration Procedures - A Summary Of The New Work Permit Regime.
December 4, 2007... Liam Byrne, the Minister for Immigration, Citizenship, and Nationality has announced the publication of the Statement of Intent of Sponsorship under the Points Based System ("Statement of Intent"). The Points Based System ("PBS") is at the...

VIRGIN - A Well-Known Trademark In Israel And Part Of Family Of Marks.
December 4, 2007... I. Summary 1. The Israeli Patents, Designs and Trademarks Registrar (hereinafter: "the Registrar") held that the mark "VIRGIN CANDLES" (hereinafter: "the Requested Mark") is confusingly similar to the registered trademark "VIRGIN", which...

USCIS Publishes Long-Awaited Revised Form I-9: Transition Period Ends December 26, 2007.(U.S Citizenship and Immigration Services)
December 4, 2007... On November 7, 2007, USCIS announced that it published a revised and updated version of the Employment Eligibility Verification Form (Form I-9) along with an accompanying revised Handbook for Employers (Manual M-274). Employers and their...

Basel II Final Credit Risk Mitigation, Securitization, Equity Exposure, Operational Risk And Disclosure Rules.
December 4, 2007... Developments of Note Basel II Final Credit Risk Mitigation, Securitization, Equity Exposure, Operational Risk and Disclosure Rules Materials from CCOutreach National Seminar Posted on SEC Website Other Items of Note SEC...

FCC Bans Exclusivity Clauses for the Provision of Video Services to Apartment Buildings.
December 4, 2007... Last spring, we discussed a proposal that has been under consideration by the Federal Communications Commission (FCC) to regulate exclusive arrangements between cable television operators and apartment building owners. (See our April 4, 2007...

Deloitte Appointed as London 2012 Official Supporter.
December 4, 2007... The London Organising Committee for the Olympic Games and Paralympic Games (LOCOG) today appointed Deloitte as the professional services supporter for London 2012. The deal is the first 'Tier Two' sponsorship to be signed. The deal will...

Public Service Delivery - Third Sector First.
December 4, 2007... The legal landscape of public service delivery has changed significantly in recent years. We look at the growing involvement of 'third sector' organisations (not 'private', not 'public', but charities and other non-governmental organisations...

CMS Finalizes Harsh Payment Cuts, Anti-Markup Rule.(Centers for Medicare and Medicaid Services)
December 4, 2007... The Centers for Medicare and Medicaid Services ("CMS") recently finalized its calendar year 2008 Medicare payment rule for physician services. The final rule can be found at http://www.cms.hhs.gov/PhysicianFeeSched/downloads/CMS-1385-FC.pdf,...

Illinois Appellate Court Upholds $8 Million Negligent Credentialing Verdict For Hospital's Failure To Follow Credentialing Criteria.(Case overview)
December 4, 2007... In a case of first impression in Illinois, and one of only a handful of cases around the country, an Illinois Appellate Court upheld a jury verdict in a negligent credentialing case against a hospital that had appointed and reappointed a...

Making A Claim Under The FIDIC Form Of Contract. What Is Clause 20 All About?(International Federation of Consulting Engineers)
December 4, 2007... Clause 20.1 of the FIDIC form provides a procedure for dealing with the notification of and substantiation of extension of time and additional payment claims, and sets out the mechanics of the decision-making process of the engineer in respect...

Homeland Security Alert: DHS Triggers Reporting Requirement With List Of "Chemicals Of Interest".(Department of Homeland Security)
December 4, 2007... On November 2, 2007, the Department of Homeland Security (DHS) published its finalized list of "chemicals of interest," thereby triggering the 60-day reporting requirement under the DHS's Chemical Facility Anti-Terrorism Standards (CFATS),1 for...

Employees Benefits And Executive Compensation Alert: Massachusetts Division Of Unemployment Assistance Issues Filing Instructions On The Fair Share Contribution And HIRD Form Requirements.
December 4, 2007... The Massachusetts Division of Unemployment Assistance (DUA) recently issued additional guidance under the Fair Share Contribution (FSC) and HIRD Form Requirements of the Massachusetts Health Care Reform Act. Though modestly titled "Filing...

Immigration And Employment, Labor And Benefits Alert: USCIS Issues Revised Employment Eligibility Verification Form I-9.
December 4, 2007... On November 7, 2007, U.S. Citizenship and Immigration Services () announced that it was issuing its long-awaited revised Form I-9, the Employment Eligibility Verification Form. The new Form I-9 formalizes a reduced number of acceptable...

The Supreme Court Warns Employers To Think Twice Before Terminating An Employee On Long-Term Disability - Your Duty To Accommodate May Not Be Over Yet.
December 4, 2007... Introduction At one point or another when dealing with cases of long-term disability, you have likely had to ask yourself the question, "How long is long enough?" After how many months or years an employee has been off sick do you have the...

Canada's Top Court Orders VIA Rail To Make Passenger Cars Accessible To Wheelchair Users At Potentially Huge Cost.(Case overview)
December 4, 2007... In a recent landmark decision, the Supreme Court of Canada upheld a federal regulatory order that forces VIA Rail to spend tens of millions of dollars to provide better access to passengers in wheelchairs. The decision, Council of Canadians...

Reviving The Dead Company In Hong Kong.
December 4, 2007... In Hong Kong, if a company is dissolved following compulsory or voluntary liquidation, the court may declare the dissolution void on the application of any person interested within two years of the date of dissolution (Section 290(1) Companies...

New York Appeals Court Ruling Upholds Award Of Punitive Damages For Unintentional Data Breach.(Case overview)
December 5, 2007... A recent decision by the Appellate Division of the New York Supreme Court, upholding a jury award of punitive damages for unintentional privacy breaches, should serve as a warning flag for all companies - especially those in the health care...

Protected Cell Companies In Mauritius.
December 5, 2007... Introduction Protected Cell Companies ("PCCs") were introduced in Mauritius by the Protected Cell Companies Act No. 137 of 1999. Initially thought to be a suitable structure for the business of insurance, it was also worked out to become a...

IOSCO Publishes Final Report on Hedge Fund Portfolio Valuation Principles.(Report)
December 5, 2007... Contents IOSCO Publishes Final Report on Hedge Fund Portfolio Valuation Principles Agencies Issue Proposed Rules and Guidelines that Address Accuracy and Integrity of Consumer Report Information and Rules to Allow Direct Disputes ...

IP Think Tank Global Week In Review.(reports of intellectual property)
December 5, 2007... Here is IP Think Tank's weekly selection of top intellectual property news breaking in the blogosphere and internet. Highlights this week included: copyright & trademark trolls, the constitutional challenge to Brazil's IP law, Norway &...

It's Getting Hotter - Climate Change & IP Strategy.(reports of Intergovernmental Panel on Climate Change)
December 5, 2007... "Observational evidence from all continents and most oceans shows that many natural systems are being affected by regional climate changes, particularly temperature increases. A global assessment of data since 1970 has shown that it is...

Property Development: What Is The Cost Of My Trading Stock?
December 5, 2007... 'Hot' property markets in a number of states have bought the issue of the calculation of taxable profits into focus. It is well established by decisions in cases such as Raymor and St Hubert's Island that property held for development and...

Business Services: Executive Health Check.
December 5, 2007... As businesses compete to recruit and retain executives in the midst of a global skills shortage, the ability of employers to look outside the square with respect to the support they provide key personal is critical. It is not uncommon to...

Corporate Recovery: Corporations Act - Section 197.(Brief article)
December 5, 2007... Directors of companies face a multitude of responsibilities, potential exposures and personal liabilities. The Corporations Act imposes an additional responsibility on directors of companies which act in a trustee capacity. Trustees will...

Taxation: A Christmas gift from the Tax Office.(new tax exemptions for employers)
December 5, 2007... From 1 April this year, the Fringe Benefits Tax ("FBT") minor exemption threshold increased from $100 to $300. As a result, the value of minor and infrequent rewards and gifts that can be provided to employees has increased threefold without...

Moore Tax News: Kevin - 07': A Fresh Tax Perspective?(evaluation of tax policy)
December 5, 2007... The Labor Government's Tax Plan With the Labor Party winning 83 seats to the coalition's 58 in Saturday's election the Federal Labor party has been elected into Government after 11 years in opposition. A final tally of 88 seats for Labor,...

Education Interests: Word Investments Case - Charitable Status Of Subsidiaries.
December 5, 2007... Full Federal Court decision provides an opportunity for subsidiaries of charities to conduct commercial activities without losing their charitable status. The Australian Taxation Office ("ATO") may need to re-write Taxation Ruling ("TR")...

Small Business Recertification Rule Creates Uncertainty Regarding Acquisition of Emerging Companies in U.S. Government Market.
December 5, 2007... In an effort to close a perceived loophole in existing government contracting regulations, the U.S. Government recently imposed a new small business recertification rule for companies that do business in the federal marketplace. The new rule...

Moore Tax News: Buyer Alert: CGT Implications Of Standard Earnout Arrangements.(evaluation of Capital gains tax law)
December 5, 2007... The purpose of this article is to set out the capital gains tax ("CGT") implications of a standard earnout arrangement as stipulated in the new Draft Taxation Ruling TR 2007/D10 ("the Draft Ruling"). 1. Background The Australian...

SCC Releases Much-Anticipated Danier Leather Class Action Decision.(Case overview)
December 5, 2007... This article will appear in the Class Action Defence Quarterly published by LexisNexis. The Supreme Court of Canada has upheld the Ontario Court of Appeal's ruling in this much-anticipated decision, released on October 12, 2007. While the...

Foreign Exchange Class Action Certified.
December 5, 2007... The acceptance of aggregate assessment of damages pursuant to s. 24(1) of the Class Proceedings Act (CPA) as a common issue is now more firmly entrenched as a result of the Court of Appeal for Ontario's recent decision certifying a class action...

TSX Revisits Exemption From Securityholder Approval For Share Exchange Acquisitions Of Public Entities.(Toronto Stock Exchange)
December 5, 2007... On October 12, 2007, the TSX issued a request for comments to determine whether it should revisit its practice of exempting listed issuers from the requirement to obtain security holder approval for share exchange acquisitions of other public...

East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44.
December 5, 2007... An important decision of the High Court handed down on 27 September 2007 has resolved an area of uncertainty in the regulation of gas infrastructure under the National Third Party Access Code for Natural Gas Pipeline Systems (the Code) and...

Impairment Testing: Another Tool To Ensure Workplace Safety.
December 5, 2007... Employers should be aware of an additional tool that can be used to detect employees who are impaired at work. "Impairment Testing" may be a more effective, less invasive way to measure employee impairment. In general, drug and alcohol...

Outsourcing Of Banking Activities.
December 5, 2007... The competitive working environment and the need to focus on core activities force today's financial institutions to outsource some services, critical to their business, for which they have limited expertise and/or limited funds. Outsourcing...

Draft WTO Anti-Dumping And Subsidy Texts Released In Doha Round.
December 5, 2007... Keywords: WTO, anti-dumping, subsidy texts, Doha, draft texts, Pascal Lamy, revisions, WTO members, trade negotiations, draft proposals, SCM Agreement The Chair of the WTO Negotiating Group on Rules released draft consolidated texts of the...

OSC Issues Staff Notice 33-729 Providing Guidance On Significant Deficiencies In Marketing Practices Of Investment Counsel/Portfolio Managers.(Ontario Securities Commission)
December 5, 2007... Introduction On November 9, 2007 the Ontario Securities Commission (the "OSC") issued Staff Notice 33-729 - Marketing Practices of Investment Counsel/Portfolio Managers (the "Staff Notice") 1detailing the results of a focused review...

Emissions Trading & Climate change bulletin.
December 5, 2007... 1. Introduction The United States has had decades of experience in emissions trading. This experience includes permit trading programs implemented by the U.S. Environmental Protection Agency ("EPA") in the 1970's for regional pollutants,...

Physicians May Now Write Multiple Prescriptions for Schedule II Controlled Substances.
December 5, 2007... The Drug Enforcement Administration ("DEA") of the Department of Justice issued new regulations on November 19, 2007, which allow physicians to prescribe up to a 90-day supply of a Schedule II controlled substance during a single prescribing...

Planning White Paper Signals Relaxation Of Controls On Out Of Town Shopping.
December 5, 2007... The Planning White Paper issued in May this year is the strongest indication yet that the Government is embracing the need for economic development as a factor to be taken into account when determining planning applications. The implications...

Delaware Bankruptcy Court Opts Out Of Newly Amended Rule 3007's Procedures For Omnibus Claim Objections.
December 5, 2007... As described in a post earlier this week, one of the major changes made by the new amendments to the Federal Rules of Bankruptcy Procedure that took effect on December 1, 2007 was the inclusion of limits on the use of omnibus claim objections....

Breach Of Contract - Remedial Work.
December 6, 2007... You've performed all your obligations under the contract, but the other party hasn't. What damages are you entitled to? Are there any other remedies which might serve your purposes? Lawrence Graham goes once more 'unto the breach'. The...

Employee Benefits Developments For November 2007.
December 6, 2007... The Internal Revenue Service (IRS) posted to its Web site a sample notice that plan sponsors may use to inform participants about their rights and obligations under the 2006 Pension Protection Act (PPA) "eligible automatic contribution...

Japan Dispute Avoidance Newsletter.
December 6, 2007... False Testimony In International Arbitration As one would expect, the participants in an arbitration, both parties and third-party witnesses, will wish to know what legal obligations are imposed upon them when they give evidence, what...

EU Commission Unveils Proposal For Settlement Of Cartel Cases.
December 6, 2007... The Commission has published a legislative proposal to allow it to deal more rapidly with cartel cases1. The proposal would enable cartel defendants to enter into settlement discussions with the Commission in exchange for earlier certainty...

The Debt Confidence Survey 2007 - Releasing The Pressure?
December 6, 2007... Interpreting the results of our second annual Debt Confidence Survey has been challenging given the current turmoil in the global debt markets that emanated from issues in the US sub-prime market. This has resulted in liquidity reducing...

Environment Bulletin: Waste Management.
December 6, 2007... Landfill Tax Amendments In Force Amendments to the Landfill Tax Scheme came into force on 1 April 2007. The Landfill Tax (Amendment) Regulations 2007 SI2007 No 965 brought into force various, mainly minor, changes to the Landfill Tax...

Environment Bulletin: Environment Policy.
December 6, 2007... New Tax Decision On Site Restoration Costs Section 91A of the Income and Corporation Taxes Act 1988 provides that certain site restoration payments are deductible for tax purposes. For corporation tax purposes, a site restoration payment...

Environment Bulletin: Miscellaneous.
December 6, 2007... New Rights Of Way Hearings Rules The Justice Ministry have recently issued new rules which regulate the conduct of hearings and inquiries where there have been objections to orders made by local authorities relating to the creation of...

RSLs & Public Procurement.(Public Contracts Regulations )
December 6, 2007... Introduction This guide is a brief explanation of what the Public Contracts Regulations 2006 mean for RSLs. The Regulations usefully consolidate the previously separate Regulations for supplies, works and services. They also deal with...

Industry Canada Releases Auction Policy Framework for Advanced Wireless Services Spectrum.
December 6, 2007... On November 28, 2007 the Honourable Jim Prentice, Minister of Industry, announced that the federal government is making 105 megahertz (MHz) of radio spectrum available by way of auction. The details on how the auction for Advanced Wireless...

Gibraltar - 2007 Review.
December 6, 2007... Spurred in part by the fiscal requirements of the European Union, Gibraltar's decision to pursue a policy of "low tax" rather than "no tax" continues to make the jurisdiction attractive to international investors and its appeal has been...

SEC Publishes Release Proposing Mutual Fund Disclosure Changes.
December 6, 2007... The SEC issued the formal release (the "Proposing Release") describing its proposal to (i) revise the disclosure requirements for the statutory prospectus currently used by registered open-end management investment companies ("mutual funds" or...

Cains Named Offshore Law Firm Of The Year.
December 6, 2007... Cains has been named as 'offshore firm of the year' by the judges of Legal Week's 2007 British Legal Awards. The achievement was announced last night at a ceremony staged at Old Billingsgate Market London, attended by senior business figures...

HR Directors Club Briefing, November 2007 - Silent Witness.
December 6, 2007... Where an employer is tipped off by an informant about a possible malingerer and does not subsequently rely on that information (relying, for example, on medical/ video evidence instead) there is no obligation to take a statement from the...

CMS Issues Report To Congress On The Medicare Hospital Value-Based Purchasing Program.
December 6, 2007... The Centers for Medicare & Medicaid Services (CMS) issued a report to Congress on November 21 which provides a framework for how Medicare hospital payments can be linked to performance measures. The plan set forth in the report entitled...

Expert Witness 'Drought' To Hit Lenders In 2008.
December 6, 2007... Professional liability specialists at law firm Browne Jacobson are predicting a shortage of credible expert witnesses to defend against the raft of claims expected next year as the credit squeeze continues to affect financial and property...

Take Private Transactions: Possible New Pitfalls for Private Equity.(Securities and Futures Commission)
December 6, 2007... Under current Hong Kong law, take private transactions may be effected by asset purchases to exploit lower regulatory hurdles for asset purchases compared with share purchases and schemes of arrangement. The Securities and Futures Commission...