Mondaq Business Briefing articles from November 2003

Mondaq Business Briefing archives from November 2003

Litigation.(discusses the court system in the Cayman Islands)
November 3, 2003... As a British dependent territory the legal system in the Cayman Islands is based upon that of the United Kingdom and the common law of the United Kingdom has general application unless there are specific statutory provisions which provide...

Proposed Legislation Aimed at Reforming Class Action Lawsuits Is Blocked by Senate Filibuster.
November 3, 2003... Executive Overview Proposed legislation aimed at "cracking down on abuses of the class action lawsuit system" and "ensuring consumers' interests are protected in class action lawsuits" fell one vote shy to overcome a Senate filibuster,...

EU Enlargement: Intellectual Property And Competition Law Issues.(European Union )
November 3, 2003... Contents Community trade marks Community designs Pricing and parallel imports The European patent system IP licences and other commercial agreements National IP and data protection laws EU measures to combat...

EPA Wins Another Challenge To Indirect Oversight Costs Imposed Under Superfund.
November 3, 2003... Article by Gregory A. Bibler, Robert L. Brennan and Charlotte L. Bednar In August, a federal district court upheld application of the Environmental Protection Agency's controversial revised methodology for computing CERCLA response costs,...

The Foundation and Trust in Liechtenstein - their use in the international field.
November 3, 2003... General Liechtenstein law acknowledges the private law (privatrechtliche) and public law (offentlichrechtliche) Foundation. This overview deals with the (private law) Family Foundation. The following definitions may be found in law and...

SEC Proposes Providing Alternative Net Capital Computations for Broker-Dealers That Elect Status as Consolidated Supervised Entities.
November 5, 2003... The SEC proposed rules that would establish a voluntary alternative method for computing net capital charges for certain broker-dealers that apply to the SEC to make such election and have tentative net capital of at least $1 billion and net...

Landlords on the Roof.(mobile telecommunications masts)
November 5, 2003... Originally published in February 2003 Recent years have seen runaway growth in the mobile telecommunications industry. With the advent of third generation mobile telephone technology (3G) many new mast sites will be required. Property...

Landlord and Tenant: Landlord's Building Works - Avoiding Payment of Compensation for Interruption of Use.
November 5, 2003... Originally published in February 2003 What can landlords do if they need to carry out essential works to a building which will result in the tenant's use of the premises being briefly interrupted? The following points should be borne in...

Safeguarding Trade Secrets In The Information Age.
November 5, 2003... There are no easy solutions to the problem of protecting trade secrets in the information age. But there are definite steps the employer can take, and these include monitoring business equipment and promulgating unambiguous policies. In...

10 Things that Developers should know about Environmental Law.
November 5, 2003... Originally published in February 2003 This short article cannot deal with every aspect of Environmental Law, however we have summarized below 10 key points which developers should be aware of:- Contamination Prior to purchasing...

Asbestos.("duty to manage asbestos" rules)
November 5, 2003... Originally published in February 2003 New "duty to manage asbestos" regulations come into force in May 2004 As you may be aware the rules governing the management of asbestos in property have been fundamentally strengthened by the...

The Construction Industry Scheme: A Potential Minefield for Landlords.(discusses Inland Revenue scheme )
November 5, 2003... Originally published in August 2003 The Construction Industry Scheme ("CIS") was introduced by the Inland Revenue to counteract the problems of tax avoidance in the building industry (where subcontractors received gross payments from...

A Doctor's Legal Duty-Erosion of the Curbside Consultant.
November 5, 2003... Submitted by the author on behalf of the FDCC Medical Malpractice Section. I. INTRODUCTION Traditionally, medical malpractice liability has been predicated upon an established physician-patient relationship.[1] A physician-patient...

Doing Business in Finland.
November 5, 2003... Article by Lennart Simonsen and Marina Louhija This article first appeared in the 9th edition of Global Counsel 3000 and is reproduced with the permission of the publisher. For further details please visit www.practicallaw.com/global ...

U.S. Federal Trade Commission Makes Patent Law And Procedure Recommendations.
November 5, 2003... The U.S. Federal Trade Commission (FTC) yesterday released a report entitled "To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy." This report offers recommendations for updating the current patent system in...

Employers May Require Employees To Sign Arbitration Agreements.
November 5, 2003... Article by Peter D. Holbrook and Christopher Scheithauer Granting a significant and long overdue win for employers, the U.S. Court of Appeals for the Ninth Circuit recently ruled that an employer may require its employees to sign...

JCAHO Publishes New Hospital Credentialing Standards For Telemedicine.( Joint Commission on Accreditation of Healthcare Organizations )
November 5, 2003... The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) has recently revised its hospital standards for credentialing telemedicine providers. The revised standards, effective January 1, 2004, are contained in the "Medical...

New York Court Upholds Publication Requirement for Newly-Formed LLCs.
November 5, 2003... Article by Jerry P. Peppers, David S. Baxter and Karen Dawson The New York Supreme Court, Appellate Division, First Department, recently upheld the newspaper publication requirement for newly-formed New York limited liability companies...

The Planning and Compulsory Purchase Bill.(UK)
November 5, 2003... Orignally published in February 2003 In February we issued an article which set out the Government's Green Paper Proposals. The proposals attracted over 16,000 responses opposing several of the reforms and attracted severe criticism from...

Rent Concessions.(UK)
November 5, 2003... Originally published in May 2003 In a competitive property market landlords may have to be pragmatic about how to deal with tenants in financial difficulties struggling to pay their rents. A landlord could consider offering temporary...

Stamp Duty: More Tax on Land (and Transitional Provisions).
November 5, 2003... Originally published in June 2003 As trailed in last year's Budget, this year's Budget and the Finance Bill 2003 contain provisions for a new stamp tax to be called Stamp Duty Land Tax ("SDLT"). The Inland Revenue currently says...

Assignments and Sub-Lettings - Points to Watch.(UK)
November 5, 2003... Originally published in July 2003 Several recently reported cases point to potential pitfalls for landlords and tenants. Under the Landlord and Tenant Act 1988 landlords must respond within a reasonable time to a tenant's request to...

Commercial Solutions for Landlords where a Tenant Becomes Insolvent.(UK)
November 5, 2003... Originally published in February 2003 As soon as a landlord becomes aware that a tenant company is in financial difficulties, immediate proactive measures should be followed to take control of the situation in order to avoid rental voids...

The Importance of Obtaining Valuation Evidence at an Early Stage in Dilapidations Claims.(UK)
November 5, 2003... Originally published in April 2003 The draft pre-action protocol for terminal dilapidations claims1 which was prepared by the Property Litigation Association and published in 2002, with the support of the Royal Institution of Chartered...

A Change in the Law Relating to Payment of Rent by Cheque.
November 5, 2003... Originally published in May 2003 A recent case1 will have far-reaching implications for both landlords and tenants when rent is paid by cheque. In strict legal terms a landlord is entitled to be paid in cash unless another method of...

Mortgagees of Leasehold Property Left out in the Cold.(UK)
November 5, 2003... Originally published in June 2003 A recent decision of the Court of Appeal1 and changes to the rules of court procedure have left lenders which have security over leasehold property at risk of their security being extinguished without...

What is a Reasonable Time to Remedy a Breach of Covenant?(UK landlord-tenant law)
November 5, 2003... Originally published in July 2003 It is well known that when a landlord discovers a tenant's breach of covenant, and serves a S.146 Notice in respect of that breach, the landlord must wait a reasonable time before proceeding under the...

Service Charges: A Further Safeguard for Residential Leaseholders.(UK)
November 5, 2003... Originally published in August 2003 Residential leaseholders are protected from the risk of losing their homes for non-payment of service charges until the level of the charges has been fixed by agreement or decided by the court. ...

Onshore trends and Offshore developments in hedge funds.
November 6, 2003... By Peter Cockhill, Partner Given the protracted bear market in US and European equity markets in recent years, it may be surprising to the casual observer to discover that hedge funds and in particular offshore hedge funds have continued...

Spam Bill Passes The Senate.
November 6, 2003... By Ronald Plesser, James Halpert and Stuart Ingis In this article: S. 877 Overview Senator Schumer's Do-Not-E-Mail Registry Amendment Hatch-Leahy Criminal Amendment Enzi-Santorum Amendment Senator Corzine's Amendment...

FERC Issues Final Rule For Cash Management Arrangements - Filings Due By Dec 11, 2003.(Federal Energy Regulatory Commission)
November 6, 2003... The Federal Energy Regulatory Commission (FERC) followed up its June 2003 interim rules requiring FERC-regulated entities to maintain specified documentation of cash management or "money pool" programs by adopting further requirements on...

New York State Enacts Comprehensive Brownfields Law.
November 6, 2003... Originally published on October 9, 2003 Governor George Pataki signed legislation today comprehensively amending the state's 1979 Superfund law and creating a statutory brownfields program. The bill was passed by the State Assembly on June...

Courts Side With EPA In Air Litigation.
November 6, 2003... Industry, and especially utilities, stretched Clean Air Act rules past their breaking point, according to a string of recent court decisions. These decisions reject efforts to craft a broad exemption from the Clean Air Act requirement to...

Court Invalidates FCC's Declaration that Broadband Access Via Cable Television Modems Is an "Information Service" Not Subject to Regulation as Telecommunications Common Carriage.(Federal Communications Commission)
November 6, 2003... By John Griffith Johnson, Jr. In a decision earlier this month, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit overturned a declaration by the Federal Communications Commission that broadband Internet access...

ECJ reassesses the scope of Article 7(1)(c) Council Regulation 40/94/EEC (the Community Trade Mark Regulation).(European Court of Justice)
November 6, 2003... The ECJ has provided further guidance on the test to apply when considering the objections based on descriptive meanings. It has opted to extend the scope of Article 7(1)(c), thereby distancing itself yet again from its decision in the Baby-Dry...

Court Rules in Enron ERISA Litigation - A Cautionary Tale for 401(k) Plan Sponsors, Boards of Directors and Other Plan Fiduciaries.(Employee Retirement Income Security Act of 1974)
November 6, 2003... By Lawrence J. Hass and Joshua H. Sternoff On September 30, a federal district court in Texas denied motions to dismiss the ERISA claims in the Tittle v. Enron class action. This lawsuit was brought by former Enron employees who held the...

New e-learning Partnership Aims to Empower Legal Training Professionals.(Semple Piggot Rochez Ltd. partnership with Impatica Inc.)
November 6, 2003... (London 05/11/03) - Today Semple Piggot Rochez (Legal Education) Ltd (SPR) , the award winning multimedia legal training specialists, announced a strategic partnership with Impatica Inc, the industry leading e-learning software developer, that...

The Spam Battleground.
November 7, 2003... Article by Diane Duhaime and Elizabeth Pasquine This article was previously published in the originally printed in the August/September 2003 issue of The Connecticut Lawyer, Volume 14/Number 1. Does this sound familiar? You open your...

British Virgin Islands: Regulating the Less Regulated: A Market-Driven Response.
November 7, 2003... In the wake of the implementation of the requirements of such international bodies as the OECD, the current desire of international investors and financiers to see a gentle and proportionate increase in clarity and regulation. This has been...

Financing of Bermuda Captives.(captive insurance companies)
November 7, 2003... Bermuda is the world's leading domicile for 'captive' insurance companies, which are insurance companies set up to insure or reinsure the risks of its parent (and affiliates) - a 'single parent' captive, or the risks of its owners - a...

MGM Mirage Advised by Pinsents on Groundbreaking UK Gaming Venture.
November 7, 2003... One of the world's leading gaming and hotel companies has been advised by a specialist team from law firm Pinsents, on an historic deal which paves the way for a spectacular multi-million pound gaming and entertainment complex in the heart of...

Securitisation and Structured Finance.(India)
November 7, 2003... Securitisation, per se is a transaction in "instruments", which represents cluster of assets / receivables of identical nature, having steady flow of income, thereby giving greater liquidity to the instrument representing it. Historically, it...

New Governance Rules For NYSE Listed Companies.(New York Stock Exchange)
November 10, 2003... The US Securities and Exchange Commission (SEC) yesterday approved new corporate governance rules that will affect all companies with common equity securities listed on the New York Stock Exchange. These rules, which were proposed by the NYSE...

New Portuguese Real Estate Tax Hits Out At Offshore Companies.
November 10, 2003... By Dr. Marco Griscti LL.D., Henley & Partners, Malta For more than 30 years, foreigners buying property in Portugal would have normally done so using an offshore company, usually registered in the Channel Islands, Isle of Man or Gibraltar...

Australian Companies Hindered By IP Ignorance.(intellectual property assests)
November 10, 2003... A new survey conducted by Freehills and the Centre for Corporate Change (CCC) at the Australian Graduate School of Management has found that Australian firms risk being left behind unless they are able to successfully manage their intellectual...

High Court Examination Of A Non-Competition Agreement With A Supplier Who Is Also A Competitor: Visy Paper V ACCC.
November 10, 2003... On 8 October 2003 the High Court upheld1 the Full Federal Court's decision2 that Visy Paper (Visy) contravened the Trade Practices Act 1974 (TPA) when it sought to make an agreement containing a non-competition clause with one of its suppliers...

The Interpretation of Patent Claims in Germany.
November 11, 2003... I. Historical development of the principles of patent law in Germany Before the era of the German Patent Act 1981, which after a number of changes is in its current version valid today, the principles for determining the scope of...

Commercial Litigation NetLetter.(Canada)
November 11, 2003... This article was first published on September 18, 2003. HIGHLIGHTS Even where the requirements for leave to appeal an arbitration award under the British Columbia Commercial Arbitrations Act have been met, the court retains a...

Commercial Litigation NetLetter.(Canada)
November 11, 2003... This article was first published on October 2, 2003 HIGHLIGHTS Potential exposure to default under a credit card processing agreement is an inchoate contingent liability and not the "further advance of money or credit" in respect of...

Commercial Litigation NetLetter.(Canada)
November 11, 2003... This article was first published on October 16, 2003 HIGHLIGHTS An accountant will not be liable for negligence in failing to properly carry out a review engagement of financial statements of a limited partnership if the plaintiff...

Commercial Litigation NetLetter.(Canada)
November 11, 2003... This article was first published on October 30, 2003 HIGHLIGHTS An order of a bankruptcy court determining that a cause of action vested in the bankrupt rather than the trustee in bankruptcy cannot be challenged by the defendant to...

Momentum To Reform Section 17200 Is Building.(California's Unfair Competition Law, Business & Professions Code Section 17200)
November 11, 2003... Momentum to change California's Unfair Competition Law, Business & Professions Code Section 17200, by initiative is rapidly building. For years, bounty-hunting lawyers have filed Section 17200 claims against businesses, often based on no...

Ninth Circuit Expands Court Jurisdiction To Internet Companies.
November 11, 2003... On September 2, 2003, the United States Court of Appeals for the Ninth Circuit issued a decision which dramatically expands the scope of federal jurisdiction over companies doing business through the internet. In Gator.com v. L.L. Bean, Inc.,...

Mandatory Arbitration Of Employment Claims Again In The Spotlight.(Brief Article)
November 11, 2003... Numerous employers utilize mandatory agreements with their employees that require resolution of employment disputes through arbitration, rather than by filing a lawsuit. Two significant developments have occurred in this rapidly changing area...

Commercial Litigation NetLetter.
November 11, 2003... This article was first published on September 04, 2003 HIGHLIGHTS An appellate court should not circumscribe the scope of an appeal from a decision of a bankruptcy judge deferring approval of a proposal until the threshold issue of...

New ASX Exposure Draft On Capital Raisings Released.
November 11, 2003... Article by Ms Philippa Stone and Mr Philip HartThe ASX's Exposure Draft titled Capital raising mechanisms in a disclosure-based market - ASX proposals for informed choice was released on 20 October 2003. The purpose of the Exposure Draft...

Weak and Strong Points of the 1382 Budget Bill.
November 11, 2003... In order to discuss the national Budget Bill of the country, the followings should be taken into consideration. Government companies, banks and profit making institutes affiliated to the government are using 64% of the national budget. They...

The Closing Window.(taxation of residents of the UK who live abroad)
November 12, 2003... There has been much discussion in the newspapers over recent months on the possibility that the rules affecting the taxation of those individuals resident in the UK, but domiciled elsewhere, may be changed. How realistic is this prospect and...

Employee Benefit Trusts - Still a Useful Vehicle?
November 12, 2003... There has been significant media coverage regarding the Inland Revenue's seemingly continual attack on EBTs in recent months. Following the outcome of the Dextra/Caudwell case in July 2002 (in which the Revenue lost on all 4 counts), new...

"Offshore" Has Lost Much of its Meaning.
November 12, 2003... I firmly believe that Guernsey has lost its "offshore" name. The simple fact is that the tags "offshore" and "onshore" were lost many years ago. The recent implementation of laws enforcing the licensing of trust companies in Guernsey has...

Financial Services Alert.(meshed briefs )
November 12, 2003... FASB Proposes Clarifications of its SPE Interpretation The FASB proposed clarifications of its Interpretation No. 46, Consolidation of Variable Interest Entities (the "Interpretation"), because the FASB determined certain parties were not...

EU-Japan Co-Operation Agreement on Anticompetitive Activities.
November 12, 2003... The agreement entered into force on 9 August 2003 and is a major step in antitrust enforcement. It is expected to lead to a much higher level of co-operation between authorities that have historically not always had identical interests or...

The ECJ is The Champion for Famous Trade Marks in the Adidas Decision.
November 12, 2003... Article by Sara McNeill and Bonita Trimmer Background Adidas, the owner of a Benelux mark consisting of the famous three stripes device brought proceedings against Fitnessworld, which markets fitness clothing bearing a similar motif of...

Pinsents Advises on [pounds sterling]37 Million Secondary Buyout.(Brief Article)
November 12, 2003... UK law firm, Pinsents, has advised the selling shareholders of Caledonian Building Systems on the [pounds sterling]37 million secondary buyout backed by Dunedin Capital Partners and Bank of Scotland. Newark-based Caledonian is a UK market...

Pinsents Advises NBGI on Investment.(Brief Article)
November 12, 2003... Lawyers at Pinsents have advised NBGI Private Equity on its investment in the successful portable accommodation specialist, Wraith Accommodation. Wraith, which hires and sells accommodation units, has averaged 60% growth in each of the...

Fees To A Sole Shareholder Must Leave Company Scope For Profit - Supreme Tax Court.(Germany)
November 12, 2003... The Supreme Tax Court has confirmed that service fees paid to a sole shareholder must be customary, reasonable, agreed in advance, and must leave the company scope for profit on the relevant business. The case was brought by a GmbH in...

New EU Directive On Energy Taxation Adopted By European Council For 2004.(Brief Article)
November 12, 2003... The European Council has adpted a new directive fixing minimum rates of excise duty on fuels and power. Entry into force is on January 1, 2004. The European Council has adpted a new directive fixing minimum rates of excise duty on fuels...

Aggregation of Losses: Recent Developments in English Law.
November 12, 2003... Aggregation issues in insurance and reinsurance contracts have recently been dealt with in three court decisions. In one, Scott v The Copenhagen Reinsurance Company (UK) Limited (discussed in Insurance and reinsurance news, June 2003), the...

The State of the Bermuda Insurance Industry.
November 13, 2003... The state of our Bermuda insurance industry is strong. This is a testament to the robust resilience of the Bermuda insurance market-place which continues to prosper and evolve in arguably some of the most adverse conditions the insurance...

IFLR Guide to Insurance and Reinsurance.(Bermuda)
November 13, 2003... Co-authored by Neil Horner and Kehinde George of Attride-Stirling &Woloniecki, Bermuda Contributing Authors' Biographies: Bala Nadarajah is Senior Counsel and Head of the Corporate Department at ASW. He is considered a leading voice in...

Amendments to the VAT Code and Setting of a Special Scheme for Certain Operators.(Portugal passes law pertaining to value added tax arrangements applicable to certain electronic supplied services)
November 13, 2003... Decree-Law 130/2003 of 28 of June implements Council Directive 2002/38/CE of 7 May 2002 into the Portuguese legal system pertaining to value added tax arrangements applicable to certain electronic supplied services. Decree-Law 130/2003 of...

The Safety Act: Mitigating Risk for Manufacturers, Providers and Buyers of Anti-Terrorism Products and Services.(Support Anti-Terrorism by Fostering Effective Technology)
November 13, 2003... The final interim rules for the SAFETY Act ("Support Anti-Terrorism by Fostering Effective Technology") were released in the Federal Register on October 16, 2003. As part of the Homeland Security Act of 2002, this piece of tort legislation...

Perchlorate Controversy Heats Up: Companies Should Develop Defense and Insurance Recovery Strategies.
November 13, 2003... Recent news reports have stated that perchlorate, possibly from the Colorado River, is contaminating lettuce farmed in California, Arizona, and Nevada. This "toxic produce" scare is generating headlines and causing some consumer groups and...

The Hard Insurance Market: Taking Advantage of a Bad Situation.
November 13, 2003... The current hard insurance market, characterized by substantial price increases and restrictions in coverage, is having a substantial impact on businesses, reminiscent of the hard insurance markets in the mid 1970s and 1980s. This naturally...

New Draft REACH Proposal Sets the Scene for Upcoming Battles.
November 13, 2003... A new draft REACH Regulation (http://www.euractiv.com/ndbtext/environ/ reach1.doc) released by the European Commission brings further changes to the text released for consultation in May 2003, and sets the scene for future heated discussions....

EU Regulatory Watch.
November 13, 2003... Contents: Chemicals Pesticides Life Sciences Food Environment General Issues Consumers/Intellectual Property Institutional Issues CHEMICALS British List of Chemicals of Concern On June 12, the...

New Organization Model for Public Hospitals.(Portugal)
November 13, 2003... Summary With Decree-Law No. 188/2003, of 20th August, the Government published a new model for the organization of public hospitals integrated in the national health service (Servico Nacional de Saude). Following the enactment of the...

SEC Proposes Rules on Shareholder Access to Director Nomination Procedures.
November 13, 2003... Background and Current Framework The proposed rule stems from a report published on July 15, 2003 by the Division of Corporation Finance of the SEC. The report recommended changes to the proxy rules regulating the nomination and election of...

The Proceeds Of Crime Act 2002.
November 14, 2003... Executive summary The Proceeds of Crime Act 2002 (POCA), which came into force in February 2003, increases the likelihood of firms having to make a disclosure. But when doing so, they may be caught between their obligation not to divulge...

Sexual Orientation And Religious Discrimination.
November 14, 2003... Executive summary New rules come into force at the beginning of December prohibiting discrimination against employees based on their sexual orientation, religion or beliefs.Most aspects of the Employment Equality (Sexual Orientation)...

Pensions: It's Good To Talk?
November 14, 2003... Executive summary There is currently no express statutory requirement for employers to consult with pension scheme members about changes to the scheme or to benefits. This briefing looks at the existing legal position in relation to...

Age Discrimination And Pensions.
November 14, 2003... Executive summary The EC Discrimination Framework Directive requires member states to enact legislation to prohibit discrimination on the grounds of age by 2 December 2006. The government plans to introduce implementing legislation on 1...

Corporate Governance Risks.
November 14, 2003... Executive summary The 21st century has seen an unprecedented surge in corporate scandals. As a result investor confidence has slumped and governments around the world are introducing reforms to corporate governance. The question now being...

Commercial Litigation NetLetter.
November 14, 2003... HIGHLIGHTS A forum selection clause designating an American state as the sole forum for resolving disputes arising from an agreement between a defendant to a British Columbia action and a proposed third party to the action may be set aside...