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A Radical Departure
Shearn Delamore & Co., October 2018

IN THIS ARTICLE, REENA ENBASEGARAM LOOKS AT THE ISSUE OF RESTRUCTURING THE WAGE SYSTEM OF HOTEL EMPLOYEES.   Introduction Service charge is a practice unique to the hotel industry whereby it is imposed on the bills issued to the customers...

Merger Reportability Analysis
Makarim & Taira S., October 2018

Under Government Regulation Number 57 and Indonesian Competition Authority (KPPU) Guidelines Number 02 , the criteria for determining whether a foreign merger (the definition includes a share acquisition) conducted outside Indonesia is reportable under the current Indonesian merger control rule (please note that the current merger control rule are the following: The Asset and/or revenue thresholds The value thresholds for a reportable transaction are: a...

ADGM Announces Tech Start-Up Licensing Regime
Afridi & Angell, October 2018

The Abu Dhabi Global Market (the ADGM) recently announced the launch of a commercial license specifically catered towards tech start-ups that allows entrepreneurs to obtain an operational license in the ADGM and access to a Professional Services Support Program aimed at allowing entrepreneurs entry to a community of businesses, financial services and professional advisors...

“No Rehire” Language in Settlement Agreement Found Unlawful Where Not Narrowly Tailored
Hunton Andrews Kurth LLP, October 2018

When negotiating a settlement agreement in an employment dispute, “no rehire” language is often a standard term. This language typically bars the litigating employee from seeking re-employment with the former employer. However, in California, at least one “no rehire” provision was invalidated because it was not narrowly tailored to the employer at issue. In Golden v. California Emergency Physicians Medical Group (“CEP”), CEP terminated Dr...

Daesang V. NutraSweet Reaffirms NY's Pro-Arbitration Attitude
Patterson Belknap Webb & Tyler LLP, October 2018

On Sept. 27, 2018, in a widely followed arbitration case, a unanimous panel of the New York Supreme Court Appellate Division, First Department, concluded that the New York County, Commercial Division, erred when it partially vacated an arbitration award on the ground that the arbitrators manifestly disregarded the law. As a result, the Appellate Division confirmed the arbitration award...

New Licensing Rules by the Israeli Innovation Authority for Multinational Corporations
Fischer Behar Chen Well Orion & Co., October 2018

At the beginning of September, the Israeli Innovation Authority, a division of the Israeli Ministry of Economy and Industry and the successor to the Office of Chief Scientist (“IIA”), issued new rules (“New Rules”) regarding the licensing of know-how developed and obtained by Israeli companies that received grants from the IIA (“Funded Companies”), to multinational corporations...

Five Issues Commonly Encountered In Commercial Building Leases In Indonesia
Makarim & Taira S., October 2018

With an estimated economic growth of 5.1% – 5.2% for 20181, economicactivities in Indonesia are expected to show a strong improvement. One ofthe indications of strong economic activities is the growing need for officespace for businesses. It is expected that office space in Jakarta will increaseby another 1.5 million square meters in 2018 – 20202 from 6 million squaremeters at the end of 20173...

Ohio Supreme Court: Faulty Work by a Subcontractor is not an "Occurrence" Requiring Coverage Under a Commercial General Liability Insurance Policy
Dinsmore & Shohl LLP, October 2018

The Ohio Supreme Court yesterday reversed the decision of a lower court of appeals and held that a general contractor is not entitled to insurance coverage for property damage arising out of its subcontractor’s faulty work, even when the general contractor purchased a CGL insurance policy with a rider pertaining to coverage related to a subcontractor’s faulty work...

Africa Tax in Brief
ENSafrica, October 2018

Africa tax in brief DEMOCRATIC REPUBLIC OF CONGO: Amendment of Mining Regulation published   Decree No. 18/024, amending the Mining Regulation, was published in the Official Gazette on 12 June 2018...

Employers Should be Aware of New Forms for Background Check Compliance
Dinsmore & Shohl LLP, October 2018

Due to recent federal regulation, employers must follow new disclosure procedures before performing background checks. Effective September 21, 2018, the Consumer Financial Protection Bureau (CFPB) issued updated model disclosure forms mandated by the Fair Credit Reporting Act (FCRA). The new forms may be accessed here. The last time the CFPB provided a model disclosure form for use by employers performing background checks was 2012...

Brexit, and The Importance of Being (GI) Earnest
ENSafrica, October 2018

  Many South Africans, I suspect, find Brexit both boring and incomprehensible. All that endless talk of customs unions, free trade agreements, hard borders, borders in the Irish Sea..! But one really interesting thing that has emerged from the endless news stories is just how important intellectual property (“IP”) is in all of this...

Selling CBD Products is Illegal, Board of Pharmacy Clarifies
Dinsmore & Shohl LLP, October 2018

In response to questions regarding the legality of Cannabidiol (CBD) oil products, the State of Ohio Board of Pharmacy (Board) announced that only licensed and operating Medical Marijuana Control Program dispensaries may sell CBD oil products. In June, the Board announced the award of 56 provisional medical marijuana dispensary licenses. All of those provisional licensees will have six months to comply with operational requirements in order to obtain a certification of operation (COO)...

Feeling the Heat: the Draft Climate Change Bill, 2018
ENSafrica, October 2018

Feeling the heat: the draft Climate Change Bill, 2018   On 8 June 2018, the South African Minister of Environmental Affairs (the “Minister”) published the draft Climate Change Bill, 2018 for public comment. Since then, the Department of Environmental Affairs (“DEA”) has undertaken a road show across the country to solicit comments to the Bill and held further bilateral meetings with stakeholders in August 2018...

Cryptocurrencies Offerings, Exchanges and Payments in France: Towards a Mix of Hard and Soft Law
Jeantet, October 2018

France has taken steps to set up a dedicated frame for cryptocurrency transactions aiming at conciliating legal certainty, market integrity and innovation. Capitalizing on best market practices, a recent bill defines an optional visa regime for ICOs, while a report commissioned by the French government sets forth principles of minimum regulations. Taxwise, the French Administrative Supreme Court has just ruled in favour of investors in Bitcoins...

Is the Singing of Offensive Songs a Dismissible Offence?
ENSafrica, October 2018

Is the singing of offensive songs a dismissible offence? The South African Constitutional Court recently handed down judgment inDuncanmec Proprietary Limited v Gaylard N.O & Othersin which it considered whether the singing of struggle songs, containing words that could be construed as offensive, warranted dismissal...

Existing Regulation on Data Protection in Panama
Morgan & Morgan, October 2018

In the framework of a globalized world and social networks that are established as a measure of possible interest of economic, social and political groups, data protection regulations become more relevant...

Who’s Interested in Primark?
ENSafrica, October 2018

Who’s interested in Primark? Is it simply those South Africans who can afford to travel to the UK, only to find that, thanks to the weakness of the rand, the only shop they can afford is ... Primark? The recent Supreme Court of Appeal (“SCA”) decision in the matterTruworths Ltd v Primark Holdingspertaining to well-known trade marks is of significance...

Three Boston Hospitals Pay Close to $1 Million in HIPAA Settlements for Disclosing Personal Health Information to Film Crews
Dinsmore & Shohl LLP, October 2018

On September 20, 2018, the Department of Health and Human Services (HHS), Office for Civil Rights (OCR) announced settlements with three Boston hospitals for disclosing Protected Health Information (PHI) to ABC News documentary filmcrews.[i] In total, the hospitals paid OCR $999,000 to settle potential violations of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule...

South African Mine Health and Safety Act - Amended Regulations Relating to Explosives and Competent Persons for Explosives Published
ENSafrica, October 2018

South African Mine Health and Safety Act – amended regulations relating to explosives and competent persons for explosives published by the mine and occupational health and safety department On Friday, 14 September 2018, the Minister of Mineral Resources (the “minister”) published a notice amending Chapter 4 of the regulations relating to explosives, binding in terms of the Mine Health and Safety Act, 1996...

Best Practices for a Successful Negotiation or Mediation
Dinsmore & Shohl LLP, October 2018

A key ­­­quality for a successful attorney, leader of an organization, claims professional or human resource professional requires effective negotiation skills to resolve conflict and disputes. Negotiating over 1,000 such disputes as an attorney and mediator has been a tremendous education on how to successfully resolve disputes and conflict...

The Big Five Amendments Proposed by the Companies Amendment Bill, 2018
ENSafrica, October 2018

  The Companies Amendment Bill, 2018 (the "Bill") was released for public comment by the Minister of Trade and Industry on 21 September 2018. The Bill, if introduced in its current form, proposes a number of changes to the Companies Act, 2008. This snapshot review deals with only our “big five” amendments. 1...

Ensure the Parties are Open to Negotiate or Mediate the Dispute
Dinsmore & Shohl LLP, October 2018

Not all matters will be appropriate for mediation. There are situations in which mediation is likely to fail: When parties let their egos control. When there is a misunderstanding of the facts. When there is a misunderstanding of the law. There is no incentive for settlement. When parties do not respect the process...

The New Rwandan Labour Code: A Mixed Bag of Pro-Employer and Pro-Employee Changes
ENSafrica, October 2018

The New Rwandan Labour Code: a mixed bag of pro-employer and pro-employee changes   Effective from 6 September 2018, Rwanda’s New Labour Code (law n° 66/2018 of 30/08/2018 regulating labour in Rwanda) repealedlaw n° 13/2009 of 27/05/2009 regulating labour in Rwanda(the “Repealed Labour Code”), which has been in force for over nine years. This article gives an overview of the key changes introduced by the New Labour Code...

Pick the Right Mediator and Agree on the Role of the Mediator
Dinsmore & Shohl LLP, October 2018

Help your Mediator to help you and your client The relationship between the mediator and the parties must be clearly defined and be based in trust. Before a mediator is selected to host mediation, the parties should agree on what type of mediation they would like to engage in and who is the best mediator for that goal...

Fair Inconsistency in Imposing Sanctions on Striking Employees
ENSafrica, October 2018

  Striking is a fundamental right enshrined in South Africa’s Constitution. However, section 36 of the Constitution accepts that a fundamental right can be limited. Sections 64 and 65 of the Labour Relations Act, 1995 (the “LRA”) contain these limitations for strikes. Section 64 requires certain procedures to be followed prior to a strike taking place for it to be “protected”...

Insist on Using Objective and Legitimate Criteria
Dinsmore & Shohl LLP, October 2018

Define the terms of fair Approaching mediation or negotiations requires that the parties agree on what criteria to use to determine what is a fair agreement. Determining these criteria before engaging in negotiations will help parties to articulate the basis for their positions. It can also help to ease tensions and rationalize the process. The criteria must be objective, legitimate and practical. Complicated formulas or unreasonable positions will complicate the discussion...

Patent Landscaping: The Road to Success
ENSafrica, October 2018

Patent landscaping: the road to success Patent landscaping analysis, or patent mapping, involves the electronic search and analysis of the vast amount of available online published patent data in order to extract meaningful and valuable technical, business and legal information...

Separate the Person from the Problem
Dinsmore & Shohl LLP, October 2018

Work with the People to Solve the Problem When approaching mediation, parties need to work together to tackle the problem, not each other. The goal is to be soft on the people and hard on the problem. Failing to interact with the other party sensitively, can be catastrophic to building or maintaining a working relationship. Knowing the other side personally helps to build cordiality. Find ways to meet them informally before the negotiation, arrive early to chat or linger afterwards...

The 2018 Mining Charter
ENSafrica, October 2018

The 2018 Mining Charter by thenatural resourcesdepartment On 27 September 2018, the South African Minister of Mineral Resources, Gwede Mantashe (the “Minister”), published the Broad-Based Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry, 2018 (the “2018 Mining Charter”). It is indicated that “implementation guidelines” are to be published in the near future...

Focus on Interests, Not Positions Interests
Dinsmore & Shohl LLP, October 2018

Stay focused on the interest, not on your position.  Define the problem; you decide on your position. For every interest there usually exist several possible satisfying solutions to adequately address those interests. Remember that behind opposed positions lie shared and often compatible interests...

WTF®: A Trade Mark Perspective on Millennial Gibberish
ENSafrica, October 2018

WTF®: a trade mark perspective on millennial gibberish bySamera Naidoo ICYMI, Proctor & Gamble ("P&G") recently applied to register a whole lot of text/SMS talk abbreviations as trade marks. It caused a real storm and the mainstream press absolutely loved it! FOMOalert! DWAI, I’ll bring you up to speed...what happened here was that P&G applied to register some really unlikely trade marks including WTF, LOL, FML, NBD...

Acknowledge Conflicting Interests and Work to Understanding your Interests and their Interests
Dinsmore & Shohl LLP, October 2018

In order to accomplish this important task, the following are steps to follow: A. Make a list of other sides’ interest. It will help your remember them and stimulate ideas for how to meet such needs B. Communicate your interests when they are in conflict. Help the other side to see just how important and legitimate your interests are. Be specific and objective. Convince them they would feel the same in your shoes and recognize how you might feel in their shoes...

Punitive Proposed Amendment to South Africa’s Transfer Pricing Provisions
ENSafrica, October 2018

Punitive proposed amendment to South Africa’s transfer pricing provisions Transfer pricing is a self-assessment mechanism that aims to ensure that taxpayers identify all potential cross-border transactions, operations, schemes, agreements or understandings that have been entered into between connected persons (referred to as “potentially affected transactions”), to ensure that all such potentially affected transactions have been concluded and implemented on an arm&rsqu

Be Flexible in your Solutions and Options for Resolutions
Dinsmore & Shohl LLP, October 2018

To achieve this step in the process, set aside time to create a wide range of solutions that advance shared interest.  This can be done before and during your negotiation or mediation. There are 4 major obstacles which inhibit consideration of options: Premature judgment Hinders imagination and possibilities...

Impact of China's Investment on the South African Tax Base
ENSafrica, October 2018

Impact of China’s investment on the South African tax base The news that China has committed to invest approximately R200-billion in South Africa was greeted with much fanfare throughout the country. Approximately ZAR33-billion of this will constitute a loan to Eskom, which is particularly good news given the funding requirements of the entity. A loan will also be advanced to Transnet in the amount of ZAR4-billion...

Make it Easy for the Other Person to Say Yes with a Win-Win Agreement
Dinsmore & Shohl LLP, October 2018

We often hear it said that neither party is happy with a settlement.  If parties strive for a win-win approach, it is possible for both to find the settlement to be a win.  To do this, give them a stake in the outcome by making sure they participate in the process.  Remember an Agreement is easier if both sides feel they contributed to the solution...

The Decriminalisation of Private Cannabis Possession and Use and the Workplace
ENSafrica, October 2018

The decriminalisation of private cannabis possession and use and the workplace In the recent decision in the consolidated matter ofMinister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others(the “cannabis judgment”), the Constitutional Court considered whether it should confirm the decision of the High Court which declared various pr

Know Your Limits and How to Protect Yourself
Dinsmore & Shohl LLP, October 2018

It often happens that one party appears to have greater bargaining power than the other.  They may be bigger, have more money, have a history of fighting and you may feel overwhelmed.    How to handle an imbalance in power in negotiations is an important consideration in taking control and working toward a resolution.  Factors to evaluate are: Best Alternative to a Negotiated Agreement (BANTA)...

Dubai Relaxes Rules on Filing Appeals Before the Court of Cassation
Afridi & Angell, September 2018

Earlier this year, H.H. Sheikh Mohammed Bin Rashid Al Maktoum, the Ruler of Dubai, issued Decree No. 28 of 2018 concerning the Acceptance of the Civil Petitions before Dubai Courts (the Decree). The Decree was issued by His Highness to address the procedures in filing appeals to the Court of Cassation. The Court of Cassation is the highest court in Dubai. Article No. 173 of Federal Law No...

The Challenge of Getting International Talent into the Life Science Sector in Scotland Continues
Shepherd and Wedderburn LLP, September 2018

Scotland is currently home to one of the largest life science clusters in Europe, with more than 700 organisations based here employing some 37,000 people. With 15 universities producing highly skilled graduates; the NHS as a massive single source of patient data; and world leading research centres in life sciences, Scotland attracts some of the brightest international scientists and life science businesses...

Amendments in the Field of Construction and Infrastructure Projects in Romania
Nestor Nestor Diculescu Kingston Petersen, September 2018

The beginning of 2018 has brought certain amendments in the field of construction and infrastructure projects in Romania, by means of a new enactment which shivered the contractors' professional life who were used to the FIDIC provisions until this moment. The Government Decision no. 1/10.01.2018 (the “GD no...

Cabin Fever: Return of the Hut
Shepherd and Wedderburn LLP, September 2018

Not-for-profit Reforesting Scotland’s "Thousand Huts" campaign has spearheaded the regrowth of the hutting community, previously almost entirely eradicated by increasingly strict building regulations. The new Building (Miscellaneous Amendments) (Scotland) Regulations 2017 sets out the framework for ecologically sustainable hut development. What is a Hut? A hut must be a single storey building used as recreational accommodation...

Exemption Requests and Deadlines for US Casualties of the Escalating Trade War
Dinsmore & Shohl LLP, September 2018

As seen in the National Law Review: It is mid-September, months into the United States’ trade dispute with China, and there is no end in sight to the dispute.  There are three significant deadlines for U.S. importers to consider involving the tariffs the U.S...

Gender-neutral Construction Contracts: The Future Norm?
Shepherd and Wedderburn LLP, September 2018

Lawyers are often criticised for using overly complex legal and technical wording in contracts. The purpose of a contract is, amongst other things, to clearly set out the rights and obligations of the contracting parties, and to limit uncertainty during the particular project. To this end, it is important to use plain English in contract drafting and as a general rule, to use short sentences, defined terms and a clear and logical structure...

Why Bahamas is the Clear Choice for Financial and Corporate Services Providers?
Morgan & Morgan, September 2018

Morgan & Morgan opened its first offices in The Bahamas since 1991. We created MMG (Bahamas) Ltd. as a corporate service and later on, in 1996, founded MMG Bank & Trust Ltd., which started our financial unit´s successful path into the financial service industry...

New Pay Ratio Reporting Requirements on the Horizon
Shepherd and Wedderburn LLP, September 2018

In its green paper on corporate governance reform, the Government sought views on measures designed to address "a widespread perception that executive pay has become increasingly disconnected from both the pay of ordinary working people and the underlying long-term performance of companies"...

An IP Toy Story
ENSafrica, September 2018

IP plays an extremely significant role in the world of toys, as a number of news reports have made very clear. We’ve recently heard that a trade mark dispute involving Hasbro and DC Comics has been settled in a New York court. In this case, Hasbro, the owner of a trade mark registration for Bumblebee (the name of aTransformerscharacter), had sued DC Comics for trade mark infringement as a result of that company’s use of the name Bumblebee for a teenage girl superhero...

The Migration Advisory Committee (MAC) Report on UK Immigration Reform: What Businesses Need to be Aware of
Shepherd and Wedderburn LLP, September 2018

The Migration Advisory Committee (MAC) has today published its report1 on immigration reform. As the MAC itself acknowledges, there will be “winners” and “losers” in any policy for immigration reform.On an initial reading of the report, it would appear the reforms proposed, while impacting all sectors, would be most challenging for those sectors employing a low-skilled workforce...

Bill Amending the South African Insolvency Act on OTC Derivatives Published for Comment
ENSafrica, September 2018

As we have written in a number of previous articles1, National Treasury, together with the Prudential Authority and the Financial Sector Conduct Authority, has recently rolled out various pieces of legislation to bring South Africa closer to compliance with its G20 commitment to regulate over-the-counter (“OTC”) derivatives in South Africa. Detailed requirements are now being harmonised, including through proposed amendments to existing legislation...

Enforcing Restrictive Covenants Against Scottish Employees
Shepherd and Wedderburn LLP, September 2018

Restrictive covenants seek to limit the ability of employees, typically senior ones, to work or carry out certain actions for a specific period after their employment is terminated. They are notoriously difficult to enforce because a court’s starting point is that they are an unenforceable restraint of trade, unless they are shown to be necessary to protect the employer’s business...

 

 

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