Mondaq Business Briefing articles from November 2006

Mondaq Business Briefing archives from November 2006

Selling Tips.
November 1, 2006... As the selling season for investments in agricultural projects is underway, it is timely to remind you about compliance with the Corporations Act 2001 (the Act) requirements imposed on responsible entities when marketing and distributing...

FSG Requirements For Experts.(financial services guides)
November 1, 2006... On 20 December 2005, the Corporations Amendment Regulations 2005 (No. 5) (the Regulations) came into effect. As previously reported, the amendments deal with refinements in a range of areas, including the following: Financial services...

Rebalancing Risk And Rewards.
November 1, 2006... ABSTRACT The Australian construction industry is suffering from low and declining profits; caused in large part by the misallocation of risk and a misunderstanding of the forces driving further efficiencies and productivity. Whilst the...

Legislation Requires New Security Rules For Chemical Plants.
November 1, 2006... Legislation signed by President Bush on October 4, 2006 requires the Department of Homeland Security ("DHS") to publish interim-final rules on chemical plant security in the next six months. Previous analyses by DHS found that 272 chemical...

For Transactions Closing On Or After November 1, 2006: New "All Appropriate Inquiry" Rule For Environmental Due Diligence Requires Use Of New Standard.
November 1, 2006... On November 1, 2006, the United States Environmental Protection Agency's (U.S.EPA) final rule defining the standard for conducting "All Appropriate Inquiry" (AAI) for Phase I Environmental Site Assessments (Phase I ESAs) goes into effect. Under...

IRS Extends Code s. 409a Transition Period.
November 1, 2006... In a widely anticipated move, the IRS and the Department of the Treasury have extended the transition period for complying with Code s. 409A to January 1, 2008 from the current January 1, 2007 deadline. The extension was announced in Notice...

Final Regulations Implementing The Massachusetts Fair Share.
November 1, 2006... The recently enacted Massachusetts health care reform act-H.4850, An Act Providing Access to Affordable, Quality, Accountable Health Care (the "Act")-imposes new health insurance mandates on both individuals and employers. The employer mandates...

Executive Compensation Revisions to Form 8-K - Effective November 7, 2006.
November 1, 2006... On November 7, 2006, the SEC's revisions to Item 1.01 and Item 5.02 of Form 8‑K will become effective for all triggering events occurring on or after that date. Early compliance is not permitted with respect to the Form 8-K amendments....

Mergers Involving Portfolio Companies Of Financial Investors May Have Antitrust Risk.
November 1, 2006... The expanding presence of financial investors - many of which focus their investment activity in specific industry sectors - is increasingly generating additional antitrust risk for mergers and acquisitions involving their portfolio companies....

An Outline Of The Japanese Government's 2006 Tax Reform Proposals.
November 1, 2006... This article was first published in the March 2006 issue of International Tax Review; www. internationaltaxreview.com December 2005 saw the ruling coalition here in Japan agree on proposals for tax reform in 2006. This article outlines...

9/11 - An Occurrence That Changed The World.
November 1, 2006... SR International Business Insurance Co Ltd v World Trade Center Properties United States Court of Appeals (for the second circuit) Lead Docket 04-4500-cv(L) THE FACTS In the Spring of 2001, Silverstein Properties Inc (and related...

Recent Developments In California Law Regarding Noncompetition Agreements.
November 1, 2006... In many states, restraints on the practice of a trade or business (i.e., noncompetition agreements) are valid if reasonable and geographically limited. In these states, employers have some ability to prevent former employees from engaging in...

Texas Supreme Court Provides New Focus For Noncompete Contract Enforcement.
November 1, 2006... All employers have good reason to welcome the Texas Supreme Court's most recent ruling on noncompete contracts. Much of the confusion that made noncompete contract enforcement in Texas difficult to predict has been eliminated. In Alex...

2006 M&A Rules: Regulations On Mergers And Aquisitions Of Domestic Enterprises By Foreign Investors In The People's Republic Of China - Part 2.
November 1, 2006... Examples Of Transactions (After 2006 Rules) 1. Overview Of Transaction Timeline For Acquisitions (a) Negotiations-a target is identified and negotiations begin for an acquisition The parties decide whether the buyer will acquire...

From Comity To Bill C-55: Evolution Of Cross-Border Insolvency In Canada.
November 1, 2006... Reproduced with permission from BNA's Bankruptcy Law Reporter, Vol. 18, No. 37, pp. 866-871 (Sept. 28, 2006). Copyright 2006 by The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com With the elimination of trade barriers and...

2006 M&A Rules: Regulations On Mergers And Acquisitions Of Domestic Enterprises By Foreign Investors In The People's Republic Of China - Part 1.
November 1, 2006... 1. Generally (a) Formal title: Regulations on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors, promulgated jointly by the Ministry of Commerce, State-owned Assets Supervision and Administration Commission of the State...

Bespoke Corporate Law Regime Geared To Global Market.
November 1, 2006... The most radical reform of company law for more than half a century is set to further enhance the Isle of Man's status as a leading centre for international business. The Treasury-led initiative to streamline the whole process of how...

Introducing The Isle Of Man Companies Act 2006.
November 1, 2006... Hon. Allan Bell MHK, Treasury Minister The launch of the Isle of Man Companies Act 2006 - developed from accepted international business company principles - marks the biggest change in Isle of Man company law for seventy-five years. This...

Governor Orders Cal/EPA And Air Board To Begin Developing Market-Based Trading System Under California's Groundbreaking Climate Change Law.
November 1, 2006... In a bold move Governor Schwarzenegger signed a controversial executive order (S-20-06, October 17, 2006), paving the way for use of market-based mechanisms to achieve the greenhouse gas emissions reduction goals imposed by the groundbreaking...

Kentucky RiverTrilogy: Recent NLRB Decisions Clarify The Definition Of The Term "Supervisor" Under The NLRA.
November 1, 2006... Recently, the National Labor Relations Board (the "NLRB" or "Board") issued three highly anticipated opinions following the Supreme Court's decision in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001), involving the definition...

International investors discover where the 'bloody hell' we are.
November 1, 2006... Australia's tourism industry may well be asking international visitors 'where the bloody hell are you?', but it seems international oil and gas companies have had no trouble finding Australia. International players, predominantly from the...

Why Bernie Ebbers is Serving a 25-Year Jail Sentence.(accused for securities fraud)
November 1, 2006... 1. Background On September 26, 2006, Bernard J. Ebbers ("Ebbers"), the former Chief Executive Officer of WorldCom, Inc. ("WorldCom"), reported to a federal prison in Oakdale, Louisiana, to begin serving his 25-year jail sentence from his...

Majority Voting For Directors.
November 1, 2006... The campaign to prompt U.S. companies to adopt majority voting standards in director elections continues to gain momentum. In 2006 alone, more than 150 stockholder proposals relating to majority voting were filed, and more than 25 percent of...

SEC Staffer Discusses Broker-Dealer Examination and Compliance Developments.
November 1, 2006... Contents: Developments of Note Goodwin Procter to Co-Present a Basel Conference, Host Post-Conference Cocktail Reception - Registration Available Now OCC Approves Proposed Lease of Bank Premises Property to Third Party SEC...

New Climate Change Legislation - The End Of Business As Usual?
November 1, 2006... Recent press coverage of climate issues culminated in the announcement yesterday by Environment Secretary David Milliband of the Government's intention to introduce new climate change legislation in the UK. The announcement coincided with the...

FSA Releases Proposals For The New COB And Financial Promotions Regime.
November 1, 2006... The FSA has today published its much anticipated consultation papers: Reforming conduct of business regulations (06/19) http://www.fsa.gov.uk/pubs/cp/cp06_19.pdf http://www.fsa.gov.uk/pubs/cp/cp06_19_annex6.pdf Financial...

Materiality And Intent Don't Compel Finding Of Inequitable Conduct.(Kemin Foods, L.C. v. Pigmentos Vegetales del Centro S.A.)
November 1, 2006... Deferring to a district court's finding of "low" levels of materiality and intent with regard to inequitable conduct, the U.S. Court of Appeals for the Federal Circuit affirmed the lower court's ruling that two patents asserted by Kemin Foods,...

Successfully Managing A Hotel Portfolio Transaction.
November 1, 2006... The last year or two in particular have seen a number of hotel portfolio sales by some of the large hotel operating companies. This trend has been increasing and several portfolios have either been sold in the last year or are on the market for...

In California Your Unlicensed Contractor May Really Be Your "Employee".(Ernesto Mendoza sued Glenn Brodeur for negligence in workplace)
November 1, 2006... A case recently decided by the First District Court of Appeal on August 18, 2006, reminds all Californians of the danger of employing an unlicensed contractor. Mendoza v. Brodeur, 06 C.D.O.S. 7729, 2006 WL 2383287. Glenn Brodeur needed to...

What's Ahead? An Outline Of Key Developments In Canadian Securities Regulation.(Brief article)
November 2, 2006... > 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. Mr N. Theodore Zink, Jr. Chadbourne & Parke LLP 30...

More Ringtones To Choose Among: New Copyright Office Decision Simplifies Acquisitions With Compulsory Licensing.
November 2, 2006... Article by Lawrence A. Schultis, Cydney A. Tune and Meighan E. O'Reardon An October 16 ruling by the Register of Copyrights will vastly increase the options for ringtone creators and distributors by making more copyrighted music available...

IRS Announces 2007 Cost Of Living Adjustments To Retirement Plan Limitations.
November 2, 2006... On October 18, 2006, the Internal Revenue Service ("IRS") announced the 2007 cost of living adjustments applicable to dollar limits on benefits and contributions, annual compensation limits, and other dollar limits that will apply to...

Comprehensive Pension Reform Becomes Law: A Look At Changes Primarily Affecting Defined Benefit Plans.
November 2, 2006... After years of political debate and negotiation, the Pension Protection Act of 2006 was signed into law by President Bush on August 17, 2006. This landmark legislation arguably is the most comprehensive pension reform legislation since the...

Trade Practices Update, October 2006.
November 2, 2006... More Trade Practices Act changes coming Following the 2003 Dawson Review of the Trade Practices Act's (the Act) competition provisions, the Federal Government has announced a new package of reforms to the Act. The changes focus on increased...

Tax Cap For Corporate Businesses Under Consideration.
November 2, 2006... Multi-million pound businesses in the Isle of Man - including branches of leading high street and private banks - could in future benefit from a proposed new tax cap on profits from their annual income. The vast majority of business is...

The Importance Of A Healthy Relationship - How Marriage Breakdown Can Impact Lenders And External Controllers.
November 2, 2006... Although many lenders and external controllers would be unaware, since 17 December 2004, all loan transactions and external administrations involving a person married under Australian law, have been conducted subject to the provisions contained...

Wrongful Dismissal Damages For Loss Of Pension Benefits.
November 2, 2006... Where an employee's employment has been terminated and he or she has received damages in lieu of notice, is he or she entitled to accrue pension benefits during the notice period? A recent Ontario case examined the law in this area and...

Your Best Worker Can Become Your Worst Nightmare.
November 2, 2006... Although difficult to imagine, your best worker may hold the key to your company's worst security nightmare. Technologically armed employees who routinely use BlackBerry devices, personal digital assistants, laptops, and tiny flash drives to...

Rescission Of Rules Of The Securities & Exchange Board Of India.(Brief article)
November 2, 2006... The Central Government has vide its Notification dated 7th September 2006, rescinded the following rules (the "Rules") of the Securities and Exchange Board of India with immediate effect: The Securities and Exchange Board of India (Merchant...

Cross-Border Employment And Global Mobility Issues In Europe And Latin America: A Closer Look At International Assignments.
November 2, 2006... The secondment of a US employee to France for a certain period of time raises various issues regarding immigration law, social security law, employment law and tax law. The purpose of this study is to summarize these issues. 1....

Canadian Income Trusts And Their Distributions To Be Taxed By The Federal Government.
November 2, 2006... The Canadian Minister of Finance served up his own Halloween trick to income funds and their investors on October 31, 2006, announcing Finance's intention to tax distributions made by publicly traded flow-through entities ("FTE") including...

Recapture Rule Only Applies To Surrender For Patentability Reasons.
November 2, 2006... Finding that limitations added by amendment during the original prosecution and removed during reissue were not added to overcome prior art and secure the patent, the U.S. Court of Appeals for the Federal Circuit affirmed a district court's...

No Double Dipping On Damages That Arise From The Same Operative Facts.
November 2, 2006... The U. S. Court of Appeals for the Federal Circuit vacated an award of damages for trademark infringement based on a finding of impermissible double recovery because the plaintiff had already been awarded patent damages on the same set of...

Exceptions To The Usual Routes For Applying For Marketing Authorisations.
November 2, 2006... Introduction There are four procedures for applying for a marketing authorisation for a medicinal product. These are a national procedure, a centralised procedure, the mutual recognition procedure and the decentralised procedure. Under...

Averting Potentially Costly Electronic Discovery Lapses.(Ron Perelman accused Morgan Stanley)
November 2, 2006... While lawyers across the country have been concerned about electronic discovery and its implications for several years now, recent court judgements have made this a significant financial issue as well. A $1.45 billion verdict is quite an...

Banking And Finance Vodcast - WA Finance Brokers Control Act.(Brief article)
November 2, 2006... WA Finance Brokers Control Act WA Finance Brokers Control Act has been passed. This act regulates finance brokers lending to residents of WA. Unlike finance broking regulations in other states, the WA Finance Brokers Control Act applies...

EPA "All Appropriate Inquiries" Rule Takes Effect on November 1, 2006: Refines Phase I Environmental Site Assessment Requirements.(Environmental Protection Agency)
November 2, 2006... After an extensive negotiated rulemaking process, the United States Environmental Protection Agency (EPA) issued its long-awaited Final Rule on November 1, 2005 setting forth federal standards and practices for performing "All Appropriate...

Copyright Vodcast, Protection Measures And Chippers: New Laws But Do They Help Gaming Companies?
November 2, 2006... In late 2005, gadens lawyers represented Sydney businessman Eddie Stevens who won a landmark case against Sony in the High Court that was widely-viewed as a win for gamers and chippers. Since that case, new legislation has come into force, and...

The Business Judgment Rule After "Disney".
November 2, 2006... This article outlines the current state of the business judgment rule in the U.S. and Canada, with particular attention to the recent Walt Disney litigation in Delaware over the large termination package - by some accounts as high as $140...

Share Price Volatility and Accounting for Share Options.
November 2, 2006... In 2005 for the first time UK listed companies were required to comply with the Share Based Payment International Accounting Standard (IFRS2). This Standard not only requires the financial statements to include an expense for the cost of...

Canadian Plans Of Arrangement: An Attractive Structure For The Cross-Border Merger.
November 2, 2006... In recent years, as multi-billion dollar U.S.-Canada cross-border M&A transactions have become more commonplace, the plan of arrangement has frequently been the preferred transaction structure. Examples include R.R. Donnelley & Sons'...

New Asbestos Regulations To Come Into Force.
November 2, 2006... On 13 November 2006 the new Control of Asbestos Regulations 2006 will come into force. The new Regulations will consolidate and replace the existing legislation on asbestos exposure in the UK. In addition, the new Regulations will introduce a...

Property Professionals' Liability Briefing, Autumn 2006.
November 2, 2006... Article by BLG's Professional Liability and Commercial Litigation Team The recent press coverage of suspected mortgage fraud is a reminder that the widespread mortgage fraud uncovered in the 1980s and 1990s is still with us and thriving....

National Individual Asbestos Certification Scheme (NIACS).
November 2, 2006... Article by BLG's Professional Liability and Commercial Litigation Team As the first professional indemnity insurance scheme to provide cover to the emerging asbestos inspectors market is launched, providing cover for companies accredited...

The Devil's In The Detail: RICS To Move Away From Detailed Conduct Rules.
November 2, 2006... Article by BLG's Professional Liability and Commercial Litigation Team We reported, in the last edition of the Property Professionals' Liability briefing, on some of the key recommendations made by Sir Bryan Carsberg following his review...

Perspective: Every Vote Counts, Right?
November 2, 2006... Most of the attention during the current political season has focused on questions such as whether Arnold, "The Governator," will be re-elected in California or whether Barack Obama will steal the start of Hillary Clinton's presidential...

Securitisation Companies And Reconstruction Companies (Reserve Bank) Guidelines And Directions, 2003 Amended.(India)
November 3, 2006... The Securitisation Companies and Reconstruction Companies (Reserve Bank) Guidelines and Directions, 2003 ("Guidelines") were enacted by the Reserve Bank of India ("RBI") with effect from April 23, 2003 in exercise of the powers conferred by the...

Overcoming Impediments To Development.(New South Wales Land and Environment Court Act)
November 3, 2006... Many developments do not proceed due to the difficulty of obtaining easements for access or drainage or other services over adjoining land. In some instances neighbouring owners will be opposed to a proposed development and will refuse to give...

Getting To Grips With Outsourcing.
November 3, 2006... Since outsourcing emerged as a distinct commercial practice in the '90s, it has developed its own jargon. For instance, can you tell a BPO from an ITO? What is the difference between outsourcing and off-shoring? Is your agreement first- or...

Plain English Guide To The Pensions Act 2004 - New Version.
November 3, 2006... We have updated our Guide to reflect all recent changes relating to the Pensions Act 2004 and associated Regulations, Codes of Practice and other regulatory publications. To view a copy of the revised Plain English Guide please click here....

A Death Knell For Industry-wide Class Actions in Canada?(Bouchard v.Agropur)
November 3, 2006... In Bouchard v.Agropur et al.,1 rendered on October 18, 2006, the Quebec Court of Appeal dealt a decisive blow to industry-wide class actions. Speaking for the Court, Justice Pelletier declared that a petitioner can only initiate class...

FSA Gives Further Guidance On Principles - Based Regulation.(United Kingdom. Financial Services Authority)
November 3, 2006... This week saw the publication of two documents which provide indications of the shape of regulation to come: Callum McCarthy's (FSA, Chairman) speech to the Financial Services Skills Council 2nd Annual Conference "Principles-based...

USPTO Limits Reexamination Only To Requested Claims.(United States. Patent and Trademark Office )
November 3, 2006... After 24 years of reexamination practice, the U.S. Patent and Trademark Office (USPTO) has made a major policy shift. The USPTO revised its policy by stating that it will only examine claims in which the requester requests examination and a...

Sixth Circuit Encounters Compilation Copyrights.(Ross Brovins & Oehmke v. Lexis Nexis Group)
November 3, 2006... The U.S. Court of Appeals for the Sixth Circuit upheld the district court's summary judgment in favor of Lexis Nexis, holding that the its compilation of electronic legal form templates was not substantially similar to plaintiff's compilation...

No Gear Shifting By The Court On Claim Construction.
November 3, 2006... Addressing the issue of claim construction in terms of statements made in a public record, the U.S. Court of Appeals for the Federal Circuit held that it was not bound to the U.S. Patent and Trademark Office's (USPTO) interpretation of a claim,...

Proposed U.S. Patent Office Rule Changes Could Significantly Affect Portfolio Development.(Patent and Trademark Office)
November 3, 2006... Earlier this year, the United States Patent and Trademark Office (USPTO) proposed a series of new rules to streamline the examination of patent applications. If adopted in their current form, the rules will significantly affect how applicants...

Obvious Risks Of Dangerous Recreational Activities; What The NSW Court Of Appeal Has Decided.(New South Wales)(Great Lakes Shire Council v Dederer & Anor: Roads & Traffic Authority of NSW v Dederer & Anor)(Case overview)
November 5, 2006... By Brian Glendenning and Damien Fing Great Lakes Shire Council v Dederer & Anor: Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101 The NSW Court of Appeal recently dismissed a claim for personal injury against a local...

Antitrust Laws Impose Restrictions On Investors' Ability To Serve On Boards Of Competing Firms.
November 5, 2006... Financial investors regularly acquire the right to designate or appoint members of the board of directors as part of their investment in portfolio companies. The antitrust laws, however, impose important restrictions and limitations on the...

Asbestos - The Commonwealth Response.(workers compensation benefits)
November 5, 2006... Workers employed by the Commonwealth Government are entitled to access workers compensation benefits by virtue of the Safety Rehabilitation & Compensation Act 1988. A worker exposed to asbestos who subsequently develops an asbestos related...

New SAFE Circular Re-Opens Door for Venture Capital and Private Equity Investment*.(State Administration of Foreign Exchange)
November 5, 2006... By Jun Wei, Partner and Roger Peng, Counsel The State Administration of Foreign Exchange (the "SAFE") promulgated Circular on Issues Relating to Foreign Exchange Administration of Equity Financings and Return Investments by Domestic...

Legal Issues Arising From IPTV.(internet protocol television)
November 5, 2006... Nick Abrahams and Glenda Stubbs provide an overview of the regulatory issues associated with Internet Protocol TV Introduction "Good evening and welcome to television" were the immortal words of Australia's first television broadcast....

Protecting Intellectual Property - Preparing for Competition from Employees and Consultants.
November 6, 2006... Under English law, there is no abstract right to protect businesses from competition from former employees, consultants or anyone else. Businesses have the opportunity set in place contractual obligations on employees and consultants to...

Trade Practices Newsletter.
November 6, 2006... Originally published June, 2006 Late in 2005, GM Holden Limited used a high profile advertising campaign headlined "You pay what we pay" which claimed to allow the general public to receive the same benefits as Holden employees in...

California Law Expands Residents' Rights In Non-Certified Long-Term Health Care Facilities.
November 6, 2006... Article by Jonathon Cohn, Jeffrey R. Bates and M. Leann Habte Executive Summary Action: The Governor signed SB 1248 ("the Act"), which will require all skilled nursing facilities ("SNFs") and all intermediate care facilities ("ICFs")...

For Investment Management Clients And To Other Interested Parties Conflicts Unavoidable For Investment Advisers.
November 6, 2006... The subject of "conflicts of interest" is an area of particular interest among regulators but often times misunderstood by investment advisers. It is well documented that an investment adviser has a fiduciary duty to its clients. The...

Cross-Border Structuring And Acquisition Financing.
November 6, 2006... Cross-border acquisitions invariably involve some form of acquisition financing, whether debt or equity, and U.S. lenders and investors often ask Stikeman Elliott to identify the structuring and financing issues that are characteristic of...

Direct - To - Home Broadcasting Service In India.
November 6, 2006... Subsequent to withdrawal of the prohibition on reception and distribution of television signals in Ku Band, Government of India has now permitted Direct - to - Home (DTH) TV service in Ku Band in India involving distribution of multi channel TV...

New Finnish Companies Act Increases Companies' Operating Freedom.(Law overview)
November 6, 2006... The new Finnish Companies Act (the "Act") entered into force on 1 September 2006. The operating freedom of companies increases with the removal of different restrictions and formal requirements as well as the introduction of new operating...

Legal Merger As A Substitute For Mandatory Redemption.
November 6, 2006... There has been a recent surge of public M&A transactions in Sweden. One of the aspects that have been widely debated in connection with several recent public bids have been the use of legal mergers as a substitute for mandatory redemption...

The Evolution Of The Partnership As A Business Vehicle.
November 6, 2006... At its most basic level a partnership requires no formalities or registration and is the simplest manner in which to carry on a business. Partnerships have been used for many centuries and were initially governed by common law rules that...

Landlord And Tenant: The End Of Forfeiture.
November 6, 2006... Forfeiture may be about to be abolished and replaced by a statutory regime for the termination of tenancies. A simplified procedure for the termination of tenancies and a greater emphasis on negotiations are proposed in the draft bill published...

Court Of Appeal Reviews Patentability Of Business Methods And Computer Programs.(Case overview)
November 6, 2006... On Friday, 27 October 2006 the Court of Appeal delivered its eagerly anticipated judgment in the Aerotel and Macrossan cases. These cases centred upon the patentability of business methods and computer programs. The Court of Appeal held that...

Case Law: Dispute Boards.(helpful to resolve conflicts)
November 7, 2006... The case: General discussion of dispute boards. The issue: Identifying the various types of dispute board and the advantages that may be brought. The implication: Dispute boards are growing in popularity, with increasing experience of...

Case Law: Blowing Hot And Blowing Cold (Principle Of Election).(Redworth Construction Limited vs. Brookdale Healthcare Limited)
November 7, 2006... In Redworth Construction Limited v Brookdale Healthcare Limited (31 July 2006) Brookdale was the employer on a project for the construction of four group homes and a day care centre. It engaged Redworth as contractor for the project. The...