Legal Updates

PRESERVING CLAIMS FOR FUTURE DAMAGES AFTER AN OIL SPILL

Those injured by an oil spill may risk losing their maximum recovery if their lawyers don’t correctly analyze future liability. Oil spill claims are unique: Damages are large and difficult to discern, and they occur over a long period of time. Regardless of the methods used to recover incurred damages, an injured party’s lawyer quickly should develop a strategy to protect against future damages – both first-party damages and liability to third parties and government entities. More…

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Sexual harassment claim results in over $100,000 in damages

A sexual harassment claim against a male traffic controller has resulted in the Queensland Civil and Administrative Tribunal ordering the employee to pay over $100,000 in compensation, after the traffic controller’s conduct led his colleague to develop severe mental health issues.

What happened?

The Tribunal found that the traffic controller sexually harassed his female colleague on a daily basis throughout his shifts with her, with almost every interaction between the pair resulting in an inappropriate comment on his part.  Persistent personal comments and sexually themed questions by the traffic controller culminated in an incident that led the complainant to suffer an emotional breakdown and resign her employment. More…

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Is this the death of late night Sydney? Liquor Amendment Bill passed by NSW parliament

Premier O’Farrell’s proposed reforms to “tackle alcohol and drug fuelled violence” were given more shape and substance yesterday, with parliament recalled early to consider the Liquor Amendment Bill 2014 (the Bill) and the Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014.

Given the populist nature of this issue and the recent political and media fanfare surrounding our drinking culture and the perceived epidemic of alcohol related violence (despite the fact that alcohol related violence in NSW actually decreased by nearly 30% between 2007-2012), we are not surprised that the Bill had an easy passage through parliament yesterday and passed both houses without amendment. More…

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The shoe is on the other foot: Court finds union took adverse action against employer

The shoe was on the other foot in a recent Federal Court of Australia decision, in which the Court held that a union-authorised restriction on the performance of overtime constituted unlawful adverse action against the employer.

Why is this case significant?

Although there have been a number of court decisions which have considered adverse action protections for employees under the Fair Work Act 2009 (Cth) (Act), decisions which have considered adverse action protections for employers are rare. More…

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Pop Up Shops – be wary of the Retail Leases Act

A ‘pop up shop’ or ‘pop up retail’ is generally regarded as a short term, temporary retail space.

A pop up shop could be expected to occupy and trade from premises for anywhere from a day to three or four months and occasionally longer.  The shop could be located in a strip shopping area (such as Sydney’s Oxford Street), a stand-alone building or a kiosk in a large shopping mall. More…

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PETERKA & PARTNERS CEE Newsletter – January 2014

Czech Republic

Justice Ministry’s Statutory Instruments for Insolvency Litigation

The Justice Ministry’s Regulation No. 397/2013 Sb., amending Regulation No. 311/2007 Sb., on rules of order of insolvency proceedings and the application of certain provisions of the Insolvency Act, as amended by Regulation No. 70/2011 Sb., and Regulation No. 398/2007 Sb., on insolvency administrators’ fee and compensation for their out-of-pocket expenses, remuneration to members and substitute members of creditors’ committees and compensation for their necessary expenses, as amended by Regulation No., 488/2012 Sb., took effect on 1 January 2014. More…

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Redusert oppbevaringstid for regnskapsdokumentasjon fra 1. februar 2014

Finansdepartementet fremmet i høst et forslag om å redusere minstekravet til oppbevaringstid for regnskapsdokumentasjon fra 10 til 5 år. Den foreslåtte endringen i bokføringsloven § 13 ble vedtatt før jul 2013, men ved en inkurie ble det ikke tatt med noen bestemmelse om ikrafttredelsestidspunkt. I statsråd 24. januar i år ble det besluttet at lovendringen trer i kraft fra 1. februar 2014.

Lovendringen gjelder krav til oppbevaring av såkalt primærdokumentasjon, det vil si:

1. Årsregnskap og annen pliktig regnskapsrapportering, årsberetning og revisjonsberetning.
2. Spesifikasjoner av pliktig regnskapsrapportering som nevnt i § 5, eller bokførte opplysninger som er nødvendig for å
kunne utarbeide slike spesifikasjoner av pliktig regnskapsrapportering.
3. Dokumentasjon av bokførte opplysninger og slettede opplysninger, dokumentasjon av kontrollsporet mv. og
dokumentasjon av balansen.
4. Nummererte brev fra revisor. More…

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SDNY Judge Instructively Opines On Employee No Hire Agreement

A recent decision from the United States District Court for the Southern District of New York, Reed Elsevier Inc. v. Transitions Holding Co., Inc., provides a useful overview of New York law on restrictive covenants. At issue was an employee non-poach agreement between two companies entered as a result of a settlement in the context of the earlier hiring of another senior executive with a non-compete. Not an unusual situation. What is somewhat unique is that the alleged “poaching” occurred in the context of the acquisition of the restricted employee’s company – - not the recruitment of the restricted employee. The Court determined not to enforce the non-hire finding that the plaintiff was unable to demonstrate that it would meet any of the four recognized “legitimate business interests” necessary to overcome the strong presumption of unenforceability of restrictive covenants under New York law.

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RBI’s clarification on the rate of exchange for conversion of External Commercial Borrowing and Lumpsum Fee/Royalty into Equity

In terms of the extant FDI Policy, Indian companies can convert external commercial borrowings and lump sum fee/royalty into equity, subject to compliance with certain conditions, including the pricing guidelines for issuance of equity shares.

In this regard, the RBI has vide A.P. (DIR Series) Circular No. 94 dated January 16, 2014 clarified that without prejudice to the extant conditions for conversion of external commercial borrowings or lump sum fee/royalty into equity:

(a) where the liability sought to be converted is denominated in foreign currency (as in case of external commercial borrowings, import of capital goods, etc.), the Indian companies will need to apply the exchange rate prevailing on the date of the agreement between the parties concerned for such conversion;

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RBI’s clarification on Establishment of Liaison Office/Branch Office/Project Office in India by Foreign Entities

Presently, in terms of the Foreign Exchange Management (Establishment in India of Branch or Office or other Place of Business) Regulations, 2000, no entity or person, being a citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, Iran or China is allowed to establish in India, a branch office or a liaison office or a project office or any other place of business by whatever name called, without the prior permission of the RBI.

However, the RBI vide its A.P. (DIR Series) Circular No.93 dated January 15, 2014, has also added Hong King and Macau to the above list to control and regulate indirect entry of residents of China through Hong King and Macau.

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