Claim for restitution crashes in the High Court

Remedies for contractual disputes are traditionally compensatory in nature, with damages assessed based on the loss suffered by the claimant. Restitutionary remedies, however, focus on any unfair benefit (known as ‘unjust enrichment’) to the defendant at the claimant’s expense, with the aim of restoring that benefit to the claimant. Restitutionary remedies are therefore distinct from traditional remedies, but in some circumstances are essential to ensuring a client can obtain an appropriate remedy.

Continue reading “Claim for restitution crashes in the High Court”

Communication with in-house lawyers not covered by legal privilege

On 14 September 2010, the European Court of Justice (ECJ) ruled that, in the field of competition law, internal company communications with in-house lawyers are not covered by the confidentiality regime regarding communication between external lawyers and clients. This judgment paves the way for the European Commission, in its role as competition regulator, to gain access to the internal communication (eg notes and e-mails) of the legal department of a company. The appeal, brought by Akzo Nobel Chemicals Ltd and its subsidiary Akcros Chemicals Ltd, which relied on the ‘legal professional privilege’ claim, was rejected by the ECJ.

Continue reading “Communication with in-house lawyers not covered by legal privilege”

Mis-selling claims:Court of Appeal guidance

Investors who have suffered loss through declining asset values are likely to investigate whether their contractual counterparty (such as a bank or other financial institution) owed a duty of care to advise them as to the suitability of investments, and/or made actionable misrepresentations or misstatements. Given the extent of recent investor losses, it is likely that this will be a fertile area of litigation for some time to come.

Continue reading “Mis-selling claims:Court of Appeal guidance”

Well-known trade mark protection in Indonesia

The concept of well-known trademarks has a long pedigree, going back to the Paris Convention for the Protection of Industrial Property (1883). Since then, protection has expanded and this has been reflected through additional dilution protection (against misuse of marks with a reputation in dissimilar goods) in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1995 and the World Intellectual Property Organization (WIPO) Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks of 1999. However, more recently, there has been resistance to offering too much protection. Nowhere are the inconsistencies between international obligations and local resistance more obvious than Indonesia, a country where trade mark protection is inherently weak and the legal system uncertain. This article briefly summarises many issues that arise when well-known foreign marks are copied – one of the most common intellectual property (IP) violation situations in Indonesia.

Continue reading “Well-known trade mark protection in Indonesia”

Protecting a company and its directors: D&O insurance

The upheaval over the Past few years in the financial markets and the global economy has led to a climate of increased regulation worldwide, with greater exposures for directors and the companies by which they are employed. All of this has highlighted the importance for companies to have adequate insurance protection. Directors’ and officers’ (D&O) insurance is one such policy.

Continue reading “Protecting a company and its directors: D&O insurance”

Softlanding Systems, Inc v KDP Software Ltd & anor [2010]

The Court of Appeal has upheld the recent High Court decision in Softlanding Systems, Inc v KDP Software Ltd & anor [2010]. The High Court had rejected Softlanding’s claim that KDP was in breach of its contractual obligations by failing to supply the required technical support post termination, and granted an injunction in favour of KDP, restraining Softlanding and its acquirer, Unicom, from using KDP’s software.

Continue reading “Softlanding Systems, Inc v KDP Software Ltd & anor [2010]”

Parallel imports and trade marks

In this era of globalisation, markets around the world are being flooded with ‘parallel import’ goods. Parallel import occurs when the original products (and not counterfeit products) are imported cheaply to a country without the authorisation of the product owner who has intellectual property (IP) rights over the products. Unlike black market goods, parallel import goods are legitimate. However, they are sold outside normal distribution channels by entities who may have no relationship with the producer of the goods. This mode of importation poses, for the producer, a threat of competition over their own products, which had been marketed following the principle of differential pricing.

Continue reading “Parallel imports and trade marks”

Fraud: forgotten but not gone

With the huge amount of publicity and debate surrounding bribery and corruption, in-house lawyers could be forgiven for thinking that there are no other financial and reputational risks for their companies.

This year has been all about the Bribery Act 2010, and the need to beef up anti-corruption programmes. Fraud seems to have faded into the background – even for the Serious Fraud Office (SFO). However, fraud risks are still very much a threat to every type of business – whether that be the risk of the company or its employees committing fraud, or the company being a victim of fraud at the hands of its own employees or outsiders. Compliance resources may be hard pressed at the moment but companies cannot afford to neglect their fraud prevention and detection programmes. Continue reading “Fraud: forgotten but not gone”

Tax treaty signed between Austria and Serbia

On 7 May 2010, Austria and Serbia signed a double taxation agreement (DTA) with an additional protocol concerning certain articles of the DTA (business profits, interest and exchange of information). The DTA and the protocol will become applicable as of 1 January of the tax year immediately following the year in which both countries have informed each other through diplomatic channels that their respective ratification procedures have been accomplished. The earliest possible date for the DTA’s entry into force is 1 January 2011. Serbia has already completed its domestic ratification procedures (the President of the Republic of Serbia signed the ratification bill into law on 29 July 2010).

Continue reading “Tax treaty signed between Austria and Serbia”

Guarantee stripping in company voluntary arrangements: landlords fight back

A fashion retailer and wholesaler, part of an Italian group, had 11 retail shops and 14 concessions in department stores in the UK, through which it sold garments supplied from Italy by its parent company. The company got into financial difficulties and considered a restructuring involving the planned closure of some of its stores and the surrender of leases with several years left to run. This was clearly going to be an expensive exercise, given that the shops were in upmarket locations and let at relatively high annual rents. Eventually, it was decided to put the company into administration so that the administrators could propose a company voluntary arrangement (CVA), with the intention that four stores would be closed and the leases would be effectively surrendered by the terms of the CVA. The CVA was seen as a mechanism through which the Italian parent company would be released from its obligations under the guarantees given to the landlords of two of the stores. This ‘guarantee stripping’ had been attempted previously by the Powerhouse group, although in Prudential Assurance Company Ltd & ors v PRG Powerhouse Ltd & ors [2007] its CVA was overturned by the court on the basis that the release of the parent company from guarantees given to its subsidiaries’ landlords constituted unfair prejudice under s6 of the Insolvency Act 1986 (the 1986 Act).

Continue reading “Guarantee stripping in company voluntary arrangements: landlords fight back”