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A Fly in the Water Bottle: The Supreme Court Defines Reasonable Foreseeability in Negligence Actions
Lavery, de Billy, L.L.P., December 2008, Quebec
On May 22, 2008, the Supreme Court of Canada rendered its decision in a case involving the notion of reasonable foreseeability in negligence actions. This judgment, written by the Chief Justice, confirms that tort law must compensate harm done on the basis of reasonable foresight, and must not be considered as insurance...
| New Labour Standards: Leave for Reservists, the Concept of Cohabitation and the new Advance Notice for Paternity Leave
Lavery, de Billy, L.L.P., December 2008, Quebec
The various amendments recently made to the Act respecting labour standards(1) (hereinafter the “ARLS”) essentially apply to the following:• the introduction of a new type of authorized leave for employees who are also reservists of the Canadian Forces and take part in operations;• the clarification of the concept of spousal cohabitation especially with regard to leave for family or parental reasons;• details on the advance notice to be given by employees who want to take pat
| CSST Assessments and Third-Party Fault
Lavery, de Billy, L.L.P., December 2008, Quebec
Many employers are rightly concerned about the significant amounts they are required to pay to the Commission de la santé et de la sécurité du travail in respect of employment injuries sustained by their employees. The general rule underlying the financial system of the regime is that the cost of benefits paid following an industrial accident sustained by an employee is imputed to his employer’s account, irrespective of whether the employer is at fault...
| Redemption song: A Summary Examination of the Conflicts that Arise When Investors Seek to Withdraw Their Capital From Hedge Funds
Nixon Peabody LLP, December 2008, New York
Hedge funds have received a substantial number of redemptions from investors, seeking the return of capital as of December 31, 2008. Many hedge funds cannot meet those investor requests. As a result, the fund managers have suspended redemptions or placed assets in side pockets. This alert addresses the duties and obligations of a hedge fund manager when it suspends redemptions...
| Car Dealers’ Frequently Asked Questions (FAQs): What If a Big 3 Goes Into Bankruptcy?
Haynes and Boone, LLP, December 2008,
The three major automobile manufacturers in the United States, General Motors, Ford and Chrysler, have indicated that without significant financial assistance from the government a filing for reorganization under Chapter 11 of the United States Bankruptcy Code is likely. Such a filing would have a significant impact on car dealers...
| Preparing for the FY2010 H-1B Deadline
Moore & Van Allen, December 2008, North Carolina
As a reminder, April 1, 2009 will be the first day USCIS will accept new petitions for H-1B Professional Worker Visas. USCIS has a cap of 65,000 H-1B visas (as well as an additional 20,000 for U.S. Masters degree holders) available per CIS fiscal year which runs from October 1 to September 30. April 1, 2009 is the first date that employers can petition for H-1B status for the upcoming fiscal year, which begins October 1, 2009...
| Recent CEPA Changes Make Hong Kong A More Attractive Launching Pad Into Mainland China For Foreign Investors
Deacons, December 2008, Hong Kong
On 29 June 2003, the Mainland government and the Hong Kong government signed the Closer Economic Partnership Arrangement (“CEPA”), which offers investors from Hong Kong a step ahead of investors from other countries to explore the Mainland market in various business sec-tors. In essence, CEPA is a free trade agreement between Mainland China and Hong Kong that offers Hong Kong products, companies and residents preferential access to the Mainland market...
| Disclosure Of Interests In Hong Kong Listed Securities
Deacons, December 2008, Hong Kong
As a consequence of the complexity of Hong Kong’s disclosure of interests regime, local substantial shareholders and global investment houses alike frequently fall foul of its provisions. Even robust monitoring and reporting systems can fail to cater to idiosyncrasies of the Hong Kong regime...
| E-proxy Rules Take Effect for all Issuers on January 1, 2009
Nixon Peabody LLP, December 2008, New York
Our most recent alert provides guidance to companies preparing for the SEC’s new proxy rules requiring Internet availability of proxy materials. The new rules are mandatory for all public companies commencing a solicitation of proxies on or after January 1, 2009...
| More Rest for the Weary? Prepare for Increased Scrutiny and Enforcement of Resident Duty Hour Limits
Nixon Peabody LLP, December 2008, New York
Last week, the Institute of Medicine (IOM) issued a long-anticipated report on patient safety and medical residents’ duty hours that is sure to affect the graduate medical education landscape...
| News and Recent Developments in Immigration Law
Nixon Peabody LLP, December 2008, New York
Know before you go: visa waiver travel soon to require advance authorization A new program, mandatory as of January 12, 2009, requires Visa Waiver Program travelers seeking to enter the U.S. to apply for authorization in advance through an Electronic System of Travel Authorization (“ESTA”)...
| The OFT Release New Information Sheets
Shoosmiths, December 2008, England
Given the current economic climate, it has been a busy year for all lenders, but coupled with the biggest overhaul of Consumer Credit Law since 1974, with the introduction of Consumer Credit Act 2006, the changes for this year are not over yet. On 1 December 2008 the OFT has released a new arrears and default information sheet. You can obtain a copy of the new statements the following link: http://www.oft.gov...
| New (2008) Tax Laws Impacting Individuals
Nixon Peabody LLP, December 2008, New York
This Alert outlines several of the more significant provisions in recent tax legislation affecting individuals. In particular, it covers the Emergency Economic Stabilization Act of 2008 ("Bailout Bill") and the Housing and Economic Recovery Act of 2008, as well as several other federal tax items. We also briefly summarize proposed legislation and cover 2008 tax planning considerations...
| New FMLA Rules Require Significant Cchanges to FMLA Policies and Procedures
Nixon Peabody LLP, December 2008, New York
The U.S. Department of Labor (DOL) has now issued the final rule that provides for significant updates of the existing regulations concerning the Family and Medical Leave Act of 1993. These changes go into effect on January 16, 2009, and will require employers to make numerous changes to their FMLA policies and practices. The U.S...
| Internet Concerns
Cassels Brock, December 2008, Ontario
Pop Up Advertisements Pop up advertisements are used to catch consumers’ attention. A pop up advertisement is a window not initiated by a user that appears on the user’s computer screen when a site is loaded. A user who clicks on the pop up graphic will be redirected to another website. To date there have been no Canadian cases dealing with pop up advertisements...
| European Commission Publishes Guidelines on Article 82 Enforcement Priorities
Shoosmiths, December 2008, England
Following consultation with national competition authorities and the public, the European Commission has published enforcement priorities guidelines, which it will follow when applying Article 82 to exclusionary conduct by dominant companies. Throughout the guidelines, the Commission reiterates that Article 82 should protect competition and consumers – rather than individual competitors (an approach previously advocated by Commissioner Kroes)...
| Surviving the Perfect Financial Storm
Nixon Peabody LLP, December 2008, New York
What strategies are franchisors and retail chains using to cope with the financial storm? We have tested a few and rejected many. Our most recent Franchise Law Alert provides steps you can take now to flourish while others perish. The credit crunch has affected all retail industry and consumer discretionary spending. Franchisors need to take bold steps to survive, much less prosper, during this storm...
| Anti-money Laundering Laws Keep Bermuda Pristine
Appleby, December 2008, Bermuda
Money laundering may be as old as the concept of money itself. However, modern-day legend claims that the term “money laundering” originated from Mafia ownership of laundromats in the United States, which were used as a business front to conceal earnings from illegal activities including extortion and prohibition...
| “Zero/Ten” Corporate Tax Reforms in Jersey
Appleby, December 2008, Jersey
Jersey is introducing changes to the way that companies are taxed in order to ensure that the island meets international standards while maintaining its competitive edge in the offshore financial services sector.The introduction of the “Zero/Ten tax regime”, which is enshrined in the Income Tax (Amendment No. 28) Jersey Law 2007, means that the standard rate of corporate income tax will be zero per cent...
| Retail Endorsement at the DIFC
Afridi & Angell, November 2008, United Arab Emirates
Since the establishment of the Dubai International Financial Centre (DIFC) in late 2004, banks and other financial-service providers established or registered within the DIFC have been restricted to operating only in the wholesale market. From July 1, 2008 it has, however, been possible to provide financial services to retail customers in or from the DIFC. Initially, the DIFC was described as a wholesale financial-services environment...
| United Arab Emirates Dispute Resolution 2008/09
Afridi & Angell, November 2008, United Arab Emirates
Commercial disputes in the United Arab Emirates (UAE) are generally resolved through litigation in the courts or arbitration. Arbitration is becoming an increasingly popular way to resolve disputes. The UAE recently signed the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). General overview and court structure The UAE is a federation of seven Emirates established in 1971...
| The Supreme Court of Canada Lays Down a New Test for Applying a “Faulty or Improper Design” Exclusion
Lavery, de Billy, L.L.P., November 2008, Quebec
On November 21st, the Supreme Court of Canada released a crucial decision on the interpretation of the “faulty or improper design” exclusion in all-risks builders’ insurance policies. By a bare (4 to 3) majority, the Court adopted a comparative standard requiring insurers to show that an impugned design failed to meet “the highest standards of the day” for the exclusion to apply...
| Singapore Exchange Intensifies Drive to Encourage Catalist Companies to Engage Sponsors
Stamford Law Corporation, November 2008, Singapore
The Singapore Exchange Ltd (SGX) recently hosted a 2nd networking event for all Catalist companies who have yet to appoint a Sponsor to meet with the SGX's approved panel of Sponsors. The SGX is set to encourage non-sponsored companies to engage a Sponsor ahead of the 5 February 2010 deadline to avoid a frenzied rush for Sponsor services towards the deadline...
| Are You in Compliance with REACH?
Nixon Peabody LLP, November 2008, New York
REACH, European Community Regulation on chemicals and their safe use, deals with the Registration, Evaluation, Authorization and Restriction of Chemical substances. The new regulation entered into force on June 1, 2007...
| Topical Tactics for the Tribunal
Shoosmiths, November 2008, England
As the economic outlook continues to look gloomy we are noticing a considerable increase in employment litigation work - this doesn't just point towards more people being dismissed (although this is certainly a factor) but also that as money gets tighter individuals feel they have nothing to lose and everything to gain by bringing claims. For employers this is obviously a headache...
| Points-based Immigration System Up and Running From 27 November 2008
Shoosmiths, November 2008, England
As reported in our September WortHReading, if you want to employ workers from outside the Economic European Area or Switzerland ("migrants") after 27 November don't forget that the new points-based immigration system will be up and running and you will need to become a licensed sponsor to do so. An employer without a sponsorship licence, but which employs migrants, will be acting illegally...
| Doh! Law Degree Requirement was not Age Discrimination
Shoosmiths, November 2008, England
In Chief Constable of West Yorkshire Police v Homer, Mr Homer argued that he could not obtain a degree in time to benefit from it financially before he retired aged 65, but younger employees would be able to and the policy was therefore indirectly discriminatory on the grounds of age...
| VoIP: What’s The Catch?
Shoosmiths, November 2008,
Solicitor and commercial specialist Ross Woodham takes a technical and commercial look at Voice over Internet Protocol (VoIP), as it grows in popularity. VoIP has existed since the early 1980’s, but was only given serious commercial attention in the late 1990’s, since when the use of VoIP-based technology has grown steadily...
| Managing your Foreign National Workforce in a Down Economy
Nixon Peabody LLP, November 2008, New York
In times of workforce reductions, companies employing foreign workers must remain aware of the special requirements they face with regard to those workers. Careful planning is essential to avoid potential liability where reductions in force or changes in corporate structure are planned for companies employing foreign workers...
| Attention New York employers: New legislation on background checks of applicants and employees to take effect February 1, 2009
Nixon Peabody LLP, November 2008, New York
On August 5, 2008, New York governor David Paterson signed new legislation regarding the use of criminal background checks. The law takes effect on February 1, 2009. This legislation imposes new requirements on all New York employers and companies that are hiring for positions in New York and that obtain background checks on applicants and employees...
| Enforcing Jersey Security Interests
Appleby, November 2008, Jersey
In the current economic climate, banks are increasingly looking at what steps they need to take to enforce their security over Jersey situate collateral under security interest agreements … and borrowers are looking at how to delay them whilst refinancing options are explored. What are the issues that are likely to arise? Valid security? The process begins with reconsidering the security interest agreement itself...
| Data Security Standards Delayed to May 1, 2009.
Office of Consumer Affairs and Business Regulation Extends Time for Compliance
Nutter McClennen & Fish, LLP, November 2008, Massachusetts
Massachusetts’ businesses facing enhanced data security standards have been given an extension of time to comply with the new requirements issued by the Office of Consumer Affairs and Business Regulation (“OCABR”). The regulations require all businesses and individuals that maintain personal information about Massachusetts residents to take certain steps to assure the security of that information...
| New Rules on Offshore Loans in Indonesia
Makarim & Taira S., November 2008, Indonesia
Bank Indonesia issued Regulation No. 10/7/PBI/2008 on 19 February 2008 regarding Offshore Loans of Non-bank Companies. Offshore loans are one of the key factors which may have positive and negative impacts on balance of payments, monetary stabilization and development continuity...
| Indonesia - Collection of Minutes Deeds and Summoning Notaries
Makarim & Taira S., November 2008, Indonesia
The Minister of Law and Human Rights issued Regulation No. 03.HT.03.10 of 2007 on 8 November 2007. Under Law No...
| Indonesia - New Forest Exploitation Scheme for Non-forestry Companies
Makarim & Taira S., November 2008, Indonesia
Government Regulation No. 2 of 2008 regarding the Types and Rates of Non-tax State Revenue Derived from the Utilization of Forest Areas for the Development of Non-forestry Activities Applicable to the Department of Forestry ("GR No. 2/2008") introduces a new scheme of forest exploitation fees for non-forestry companies such as those engaged in mining, oil and gas, geothermal power and telecommunications companies conducting activities in forest areas...
| Indonesia’s New Company Law
Makarim & Taira S., November 2008, Indonesia
After lengthy discussion, the Indonesian House of Representatives finally passed the Bill on Limited Liability Companies into law on the 23rd of July 2007 and it was then signed by the President on the 16th of August 2007 and enacted as Law No 40 of 2007 regarding Limited Liability Companies ("Law 40"). Law 40 revokes the previous limited liability companies law, ie Law No. 1 of 1995 regarding Limited Liability Companies ("Law 1")...
| Investment Law and the New Negative List in Indonesia
Makarim & Taira S., November 2008, Indonesia
Since 26 April 2007, Indonesia has had a new Investment Law, namely Law No. 25 of 2007 regarding Investment (“New Investment Law”). The New Investment Law replaces two old laws; ie Law No. 1 of 1967 regarding Foreign Investment, and Law No 6 of 1968 regarding Domestic Investment, both as amended. The New Investment Law accommodates both foreign and domestic investment...
| Lehman Counterparties Beware: Debtors in Lehman Brothers Bankruptcy File Key Motion on Derivatives Contracts
Nixon Peabody LLP, November 2008, New York
The debtors in the Lehman Brothers Holdings Inc. bankruptcy proceedings recently filed a motion that could have major implications for counterparties to derivatives contracts where a Lehman affiliate is party to the agreement. The debtors in the Lehman Brothers Holdings Inc. bankruptcy proceedings recently filed a motion that could have major implications for counterparties to derivatives contracts where a Lehman affiliate is party to the agreement...
| CMS issues the final anti-markup rule for physician diagnostics tests; revised rule goes into effect January 1, 2009
Nixon Peabody LLP, November 2008, New York
CMS has just issued the final anti-markup rule on physician billed diagnostic tests. The new rule, which becomes effective January 1, 2009, may require physician practices to restructure certain practice arrangements--even those that are Stark compliant...
| President-elect Obama and Potential Historic Changes in Labor & Employment Law
Nixon Peabody LLP, November 2008, New York
The historic election of Barack Obama and the gains made by Democrats in both the U.S. House of Representatives and Senate may well lead to profound and dramatic changes in the landscape of labor and employment law, and may transform the American workplace. President-elect Obama has received strong union support and has openly expressed his intent to work with labor organizations to revamp current labor laws...
| Proposed amendment to FRCP 26 — What is it and how will it affect litigation?
Nixon Peabody LLP, November 2008, New York
An amendment has been proposed to Federal Rule of Civil Procedure 26(a)(2)(A), which requires a party to disclose the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705...
| IRS Says Housing Act’s 9 percent Applicable Percentage Floor Trumps Lock-in Rate
Nixon Peabody LLP, November 2008, New York
he Internal Revenue Service has determined in Notice 2008-106 published November 13, 2008, that for buildings placed in service after July 30, 2008, and before December 31, 2013, the 9 percent applicable percentage floor under Section 42 will apply even if a binding election under former tax code Section 42(b)(2)(A)(ii) to lock in a lesser rate was made with respect to such building on or before July 30, 2008...
| The European Court of Justice (ECJ) Gave a Preliminary Ruling in Joined Cases C-468/06 - C-478/06
Lideika, Petrauskas, Valiūnas ir Partneriai LAWIN, November 2008, Lithuania
On 16 September 2008, the European Court of Justice (ECJ) gave a preliminary ruling in joined cases C-468/06 - C-478/06 specifying that a refusal by a pharmaceutical undertaking that holds a dominant position on a relevant pharmaceutical market to supply wholesalers with a view to impeding parallel export of such wholesalers from one Member State to other Member States constitutes an abuse of a dominant market position under Article 82 of the EC Treaty...
| Proposed Tax Ammendments - Tax Benefits
PLMJ - A.M. Pereira, Saragga Leal, Oliveira Martins, Judice e Associados, November 2008, Portugal
The 2009 State Budget Bill was presented to Parliament on 15 October. The general discussion and voting on the Bill are scheduled for 5, 6 and 7 November while the special discussion and voting and final overall discussion and voting are scheduled for the 27th and 28th of the same month...
| Law on Information and Electronic Transactions in Indonesia
Makarim & Taira S., November 2008, Indonesia
The Government of the Republic of Indonesia ("GOI") understands that Indonesia is becoming part of the globalization of information. Consequently many new forms of legal actions which were not covered by current Indonesian laws and regulations now have to be regulated. On 21 April 2008, after being approved by the House of Representatives, the GOI enacted Law No 11 of 2008 regarding Information and Electronic Transactions ("Law No 11 of 2008")...
| Indonesia - Capital Contributions in Insurance Companies
Makarim & Taira S., November 2008, Indonesia
In May 2008 the government of the Republic of Indonesia issued Government Regulation No. 39 of 2008 regarding the Second Amendment to Government Regulation No. 73 of 1992 regarding Insurance-Related Business Activities (Usaha Perasuransian) in order to anticipate the developing national insurance-related industries, including, among other things, insurance companies (perusahaan asuransi)...
| Indonesia - Consumer Protection Guidelines and Procedure for Downstream Oil and Gas Business Activities
Makarim & Taira S., November 2008, Indonesia
To protect consumers of oil and gas products, on 13 June 2008, the Minister for Energy and Mineral Resources issued Regulation No. 19 of 2008 regarding Guidelines and Procedures for the Protection of Consumers for Downstream Oil and Gas Business Activities (the "Regulation")...
| Indonesia - Excise Audits
Makarim & Taira S., November 2008, Indonesia
To ascertain compliance with laws and regulations relating to excise, on 23 June 2008 the Minister of Finance issued Regulation No. 91/PMK.04/2008 regarding Excise Audits, to conduct excise audits on factories, warehouses, importers, distributors, and anyone who uses imported goods that have been granted an excise exemption. The regulation came into force on 15 August 2008. The form of the audit can be a general audit, special audit, or investigative audit...
| Indonesia - Amendments to the Negative List
Makarim & Taira S., November 2008, Indonesia
After the enactment last year of the Investment Law, a new "negative list" of investment fields closed or conditionally open for investments was issued by Presidential Regulation No.77 of 2007. This has been amended by Regulation No.111 of 2007...
| Reclassification of the Class 3 (Re)Insurers
Appleby, November 2008, Bermuda
Bermuda’s House of Assembly passed the Insurance Amendment Bill 2008 (the “Insurance Amendment Act 2008”) in July 2008. This piece of legislation has far-reaching implications for the Bermuda (re)insurance market...
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