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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...

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...

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...

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...

Brexit: Trade Mark Update
ENSafrica, September 2018

Regular readers will recall our recent ENSight1 where we reported that a draft agreement had been published which, to a degree, addressed the uncertainty trade mark owners are facing about the impact of Brexit on their trade mark rights. We said that while it had been agreed that Brexit will be implemented in a manner that preserves trade mark rights, discussions on the charges and administrative procedures for the creation of a corresponding UK right were ongoing...

Michigan Legislature Adopts Minimum Wage Increases and Paid Sick Leave: Political Poker Is Alive and Well in Michigan
Dykema, September 2018

After various court battles, two ballot initiatives were set to be on the November ballot for voter consideration. If passed, one would have increased the state minimum wage and the other would have required employers to provide sick leave to employees. Under Michigan law, though, the Legislature is permitted the opportunity to foreclose the issues from appearing on the ballot by adopting those initiatives through legislation...

How will South Africa’s Financial Sector Adapt to the Fourth Industrial Revolution?
ENSafrica, September 2018

Over the past year, South Africa has seen some significant changes impacting its commercial financial landscape. On the regulatory front, there has been an overhaul of the financial sector regulatory framework, including the implementation of the “twin peaks” model of regulation, comprising the Prudential Authority and the Financial Sector Conduct Authority (“FSCA”)...

Deadline Looms for Pending Cases in Front of Administrative Law Judges, per SEC Orders
Dykema, September 2018

Earlier this year, the Supreme Court issued its opinion in the matter of Lucia v. SEC, 585 U.S. ___ (2018), which held that administrative law judges of the U.S. Securities and Exchange Commission (SEC) are considered Inferior Officers of the United States, therefore subject to the Appointments Clause (Article II, Sec. 2) of the U.S. Constitution. The Supreme Court ruled in favor of Mr...

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...

New Law Establishes a Legal Framework for the Comprehensive Approach to Sexually Transmitted Infections (STIs) and the Human Immunodeficiency Virus (HIV)
Morgan & Morgan, September 2018

Law 40 has, among other, some provisions that affect the workplace, such as the following: Obligations and prohibitions for employers: Any discrimination and stigmatizing or segregating act is prohibited to the detriment of those affected, as well as against their relatives and friends. Every employer is obliged to implement practical ILO recommendations on STI and HIV, and must take all necessary measures to effectively protect the life and health of its affected workers...

Runaway Mora Interest in Substituted Compensation Orders?
ENSafrica, September 2018

 In Malatji v Minister of Home Affairs and Another, the South African Labour Appeal Court (“LAC”) had to determine when mora interest (interest accrued on overdue payment) should begin running, in circumstances where the Labour Court had ordered the substitution of an arbitration award granting retrospective reinstatement with an order for the payment of compensation, but had made no provision for the timing of interest...

Latest Developments on Trade Policy: Tariffs on Chinese Imports & Considerations When Applying for an Exclusion
Dykema, August 2018

With the ever-changing developments regarding trade policy, we wanted to take this opportunity to provide some clarity regarding the Administration's actions under Section 301 of the Trade Act of 1974, regarding products imported from China. Tariffs on Chinese Imports Section 301 of the Trade Act allows the President to take action against a foreign government that violates an international trade agreement or restricts U.S. commerce - in this case, China...

Ownership of Genetic Information and Tissues Under the South African National Health Act
ENSafrica, September 2018

Background The legal and philosophical aspects relating to the concept of “ownership” with respect to human biological material of various kinds has been hotly debated...

Beware Geeks Bearing Gifts - Why Sports' Rights Holders Need to Think Carefully Before Moving Away from 'Traditional’ Broadcasters
Shepherd and Wedderburn LLP, August 2018

Two significant events this week raised eyebrows in the lucrative world of live sports broadcasting. Firstly, Facebook agreed an exclusive deal to show La Liga to users in Asian territories including India, Bangladesh, Sri Lanka and Pakistan. It will live stream all 380 matches this season for free to its 348 million users in the region. The move fits with Facebook's ambition to grow use of its social networking platform outside markets that have reached saturation...

Establishing a Business in Global Guide - Israel - Publication
Fischer Behar Chen Well Orion & Co., August 2018

(FBC’s Ron Lehmann, Ron Sitton, Carolyn Zeimer Vigodny and Audrey Abensur authored the ‘Establishing a Business in Israel’ guide for the Thomson Reuters Establishing a Business in … Global Guide 2018. See here.) The Israeli legal system is mainly based on common law, but incorporates some aspects of civil law. Israeli business entities include cojmpanies, partnerships, co-operatives and non-profit organisations...

Tackling the Gender Pay Gap
Shepherd and Wedderburn LLP, August 2018

All employers who were required to publish a Gender Pay Gap Report1 for the financial year 2017-2018 have now done so. A report published by the UK Parliament’s Business, Energy and Industrial Strategy (BEIS) Committee2 has confirmed that 78% of organisations have gender pay gaps that favour men, and that the national gender pay gap median is around 18%. The picture is worse in certain sectors, where it was found that gender pay gaps of over 40% were “not uncommon”...

Demutualization of the Tel-Aviv Stock Exchange: Opportunities and Challenges
Fischer Behar Chen Well Orion & Co., August 2018

In May 2017, the Israeli Securities Law was amended (Amendment No. 63) with a goal of turning the Tel-Aviv Stock Exchange (TASE) into a more competitive, efficient and profitable stock exchange, by outlining an ownership structure change of the TASE. The ownership structure change allows private investors, in addition to institutional investors, to acquire means of control over the TASE...

Mauritius welcomes changes to its arbitration landscape
ENSafrica, August 2018

The new MIACThe London Centre for International Arbitration (the “LCIA”) and the Government of Mauritius have come to a mutual agreement to terminate the joint venture that had led to the establishment of the LCIA-MIAC Arbitration Centre in Mauritius in 2011. The effective date of termination was 27 July 2018. The Mauritius International Arbitration Centre (the “MIAC”) will thereafter commence operations as an independent arbitration centre...

Updates on Force Majeure Provisions Under the Power Purchase Agreements
Makarim & Taira S., August 2018

  Earlier this year, the Minister of Energy and Mineral Resources (the “MEMR”) issued Regulation Number 10 of 2018 on The Second Amendment to Minister of Energy and Mineral Resources Regulation Number 10 of 2017 on the Principles of Power Purchase Agreements (“MEMR Reg 10/2018”) which came into effect on 13 February 2018...

VAT relief for residential property developers after expiry of section 18B
ENSafrica, August 2018

The South African Revenue Service (“SARS”) issued Binding General Ruling No. 48 (“BGR 48”) on 25 July 2018, which provides much needed clarification for residential property developers following the recent cessation of relief under section 18B of the Value-Added Tax Act, 1991 (the “VAT Act”)...

Code of Conduct for Industrial Harmony : A Guideline on Retrenchment
Shearn Delamore & Co., August 2018

IN THIS ARTICLE, PARVATHY DEVI RAJA MOORTHY DISCUSSES THE CODE OF CONDUCT FOR INDUSTRIAL HARMONY   Introduction The Code of Conduct for Industrial Harmony (“the Code”) was agreed upon between the then Ministry of Labour and Manpower[1], the Malaysian Council of Employers’ Organisation[2]and the Malaysian Trades Union Congress to lay down principles and guidelines to employers and workers on the practice of industrial relations for achieving greater industrial ha

Africa tax in brief
ENSafrica, August 2018

DJIBOUTI: International Free Trade Zone launchedThe first phase of the Djibouti International Free Trade Zone (“DIFTZ”), expected to be the largest free trade zone in Africa, was launched on 5 July 2018. The DIFTZ will house a variety of manufacturing plants and offer investors various incentives, including tax exemptions...

Can an Industrial Court Action Proceed without Complying with Section 226(3) or Section 263(2) of the Companies Act 1965?
Shearn Delamore & Co., August 2018

IN THIS ARTICLE PARVATHY DEVI RAJA MOORTHY DISCUSSES WHETHER AN INDUSTRIAL COURT ACTION CAN PROCEED WITHOUT COMPLYING WITH SECTION 226(3) OR SECTION 263(2) OF THE COMPANIES ACT 1965.   Introduction In the civil court, any action or proceeding pending against a company after the presentation of a winding-up petition may be stayed by the court...

Corporate reorganisations: the dividend stripping pitfall
ENSafrica, August 2018

Under South African corporate reorganisation rules, tax consequences are deferred and do not crystalise at the time of the transaction, but a carefully planned restructuring transaction may result in hardship due to subsequent events. A recently proposed amendment illustrates this risk.Tax relief under the existing corporate reorganisation rules may be neutralised if assets acquired in terms of these rules are disposed of within 18 months...

Challenging an Award of the Industrial Court
Shearn Delamore & Co., August 2018

IN THIS ARTICLE, JAIME GOH MOON HOONG ANALYSES THE EXTENT AN AWARD, DECISION OR ORDER OF THE INDUSTRIAL COURT CAN BE CHALLENGED OR REVIEWED BY WAY OF JUDICIAL REVIEW.   Introduction The Industrial Court is a creature of statute. In determining a particular dispute, the Industrial Court must act in accordance with the purposes and express provisions of theIndustrial Relations Act 1967(“Act”)...

Far-reaching proposed changes to the taxation of foreign trusts
ENSafrica, August 2018

The South African Draft Taxation Laws Amendment Bill, 2018 (the “Draft Bill”), which was published by the Minister of Finance on 16 July 2018, introduces many of the tax proposals announced in the 2018 Budget Review earlier this year...

The Law Relating to Competing Unions Representing the Same Group of Employees
Shearn Delamore & Co., August 2018

IN THIS ARTICLE, REENA ENBASEGARAM LOOKS AT THE LAW RELATING TO COMPETING UNIONS.   Introduction The strength of a trade union is derived from its membership which is its paramount asset. Upon being accorded recognition, a trade union will bargain on behalf of the employees and, in this regard, acts as a principal and not as an agent of its members[1]. The contracting rights - including those of non-union members and future employees - are transferred to the trade union...

A union's duty to consult: The Labour Court's disapproval of delaying tactics and obstructive behaviour
ENSafrica, August 2018

Section 189 of the Labour Relations Act, 1995 (the "LRA") provides that an employer, after giving notice that it is contemplating dismissals on the grounds of its operational requirements, must enter into a consultation process with regard to the proposed dismissals...

Transferring an Employee
Shearn Delamore & Co., August 2018

IN THIS ARTICLE, NADIA ABU BAKAR DISCUSSES AN EMPLOYER’S PREROGATIVE TO TRANSFER EMPLOYEES   Introduction There may be an instance where you receive a letter from your company with the following content: “In light of the business requirements of the Company, you shall be transferred to xx with effect from xx...

Dismissals with immediate effect: a different approach
ENSafrica, August 2018

In a previous ENSight, we discussed the decision of the Labour Court in Mtati v KPMG Services (Pty) Ltd. In this case, it was decided that employees may not be disciplined if they have resigned “with immediate effect”. The resignation is regarded as terminating the contract of employment immediately and the consequence is that the employer is denied the opportunity to pursue disciplinary action against the employee. A subsequent dismissal will be null and void...

Who is my Employer?
Shearn Delamore & Co., August 2018

IN THIS ARTICLE PARVATHY DEVI RAJA MOORTHY LOOKS AT THE IMPORTANCE OF ASCERTAINING THE IDENTITY OF THE EMPLOYER WHEN LODGING A COMPLAINT OF UNFAIR DISMISSAL ESPECIALLY IN SECONDMENT CASES.   Introduction The correct identification of an employer is essential in the lodging of an unfair dismissal complaint pursuant tosection 20of theIndustrial Relations Act 1967where the relationship between the employee and the company is unclear...

Can an employer be held liable for racial discrimination towards an employee by one of its customers?
ENSafrica, August 2018

In an interesting and (as yet) unreported judgment handed down by the Labour Court, which considered an appeal against a Commission for Conciliation, Mediation and Arbitration (“CCMA”) award (rather than a review), the court confirmed the principle that an employer cannot be held liable in terms of the Employment Equity Act, 1998 (the “EEA”) for unfair discrimination resulting from actions towards one of its employees by one of its customers...

A Re-look at the Laws on Retrenchment
Shearn Delamore & Co., August 2018

IN THIS ARTICLE, WONG KIAN JUN CONSIDERS A RE-LOOK AT THE LAWS ON RETRENCHMENT   Introduction During uncertain times and shrinking profits, organisations may decide to reorganise their business structure in order to create a leaner workforce thereby reducing their operating costs to weather the impact of a slowing economy. Inevitably, the reorganisation would result in the retrenchment of its employees who are considered surplus to the needs of the organisation...

Promotion after dismissal?
ENSafrica, August 2018

The primary remedy for a substantively unfair dismissal is reinstatement, which aims to place an employee into the position he or she would have held had it not been for the substantively unfair dismissal. Generally speaking, reinstatement awards are coupled with orders for back pay, that is, payment of the remuneration that the employee would have enjoyed over the period between the dismissal and the reinstatement order...

San Antonio Passes Ordinance Requiring Paid Sick Leave
Dykema, August 2018

The San Antonio City Council recently approved a new city ordinance that requires employers to provide paid sick leave to employees who work at least 80 hours within the City of San Antonio per year...

The Basic Conditions of Employment Amendment Bill – too much work for the CCMA?
ENSafrica, August 2018

During the course of recent months, South African Parliament has considered four bills proposing significant changes to South Africa’s labour legislation. These are the National Minimum Wage Bill, the Basic Conditions of Employment Amendment Bill (the “BCEA Bill”), the Labour Relations Amendment Bill (the “LRA Bill”) and the Labour Laws Amendment Bill...

Providing for concurrent delay: contract provision trumps common law principle
Shepherd and Wedderburn LLP, August 2018

In North Midland Building Ltd v Cyden Homes Ltd, the Court of Appeal held that an express contractual term allowing an employer to levy liquidated damages for periods of concurrent delay took precedence over a common law principle known as the prevention principle. Background Cyden Homes Limited (CH) employed a contractor, North Midland Building Limited (NMB), to design and build a large house in the Midlands, under a JCT Design and Build construction contract...

Locus Standi of an Infringer as an Aggrieved Party
Shearn Delamore & Co., August 2018

Can An Infringer Have Locus Standi As An Aggrieved Party?   This case raised a few important and novel issues that dealt with thelocus standiof an aggrieved person, Internet searches as evidence for use of a trade mark and the role of a sub-brand as a source identifier when used together with a house brand...

Philippine Chapter of Getting the Deal Through: Labour & Employment 2018
SyCip Salazar Hernandez & Gatmaitan, August 2018

  Getting the Deal Through: Labour & Employment 2018 - Philippines Ronald Mark C. Lleno, Emmar Benjoe B. Panahon and Hans Cedric I. Santos SyCip Salazar Hernandez & Gatmaitan   Legislation and agencies 1 What are the main statutes and regulations relating to employment? The Labor Code of the Philippines (Presidential Decree No. 442, as amended) (the Labor Code) and the Omnibus Rules Implementing the Labor Code...

"QAPI Spells Success for SNFs" Jeff Parrish in McKnight's Long-Term Care News
Waller, August 2018

The skilled nursing sector has seen a significant number of facility divestitures and closures in the last few years. Quite frankly, this negative trend is due in part to a reluctance by some operators to implement clinical-based care standards and a lack of honest self-evaluation to improve the clinical care provided at skilled nursing facilities. Outdated operating models – solely meeting the basic needs of patients – does not bode well for SNF operators to survive...

Well-known trade marks in Kenya: the bar is high
ENSafrica, August 2018

The recent Kenyan High Court judgment in the case of Sony Corporation v Sony Holdings Limited (a decision of Judge Tuiyoyy dated 29 May 2018) has attracted considerable attention. Much of the talk has been around the fact that Sony, arguably one of the best known brands in the world, was denied protection as a well-known trade mark. But there’s more to this judgment than that...

The European, Middle Eastern and African Antitrust Review 2019: Israel Overview
Fischer Behar Chen Well Orion & Co., August 2018

Global Competition Review (GCR) publishedThe European, Middle Eastern and African Antitrust Review 2019. The “Israel Overview” chapter was written by FBC’s Tal Eyal-Boger, Ziv Schwartz and Shani Brown...

Frodo: not Baggin this one
ENSafrica, August 2018

We don’t often discuss Korean trade mark cases, but a recent registry decision is worth a look because it shines a spotlight on a particularly interesting aspect of trade mark law: character merchandising.Kakao Corp is Korea’s largest mobile service provider. One of its offerings is KakaoTalk, a mobile messaging service that’s apparently used by some 154-million people around the globe...

Brexit: What can employers do now to help support their EU employees?
Shepherd and Wedderburn LLP, August 2018

One of the most pressing issues for employers in relation to Brexit is immigration and the rights of EU citizens following the UK’s exit from the EU. Many UK businesses hire EU workers, with some sectors such as agriculture being particularly dependent on seasonal EU workers; still more will employ individuals who have family members who are EU nationals...

RF talks trade marks and endorsements
ENSafrica, August 2018

It’s been widely reported that Roger Federer has signed a 10-year, USD300-million sponsorship deal with the clothing brand UNIQLO. The new deal was announced with some style when Roger walked out on Wimbledon Centre Court in his fancy new threads on the first day of the 2018 championships. The UNIQLO deal is interesting in a number of respects...

Qualified Opportunity Zones: A New Tax-Advantaged Investment Strategy
Dykema, August 2018

Executive Summary The 2017 tax act (Pub. L. No. 115-97) introduced a new program designed to encourage investments in low-income communities throughout the country that have been designated as qualified opportunity zones (“Opportunity Zones”). Each state and U.S. territory was allowed to designate up to 25 percent of eligible low-income communities as Opportunity Zones...

Louboutin wins case to defend red-soled shoes as a trademark
Wardynski & Partners, August 2018

The European Court of Justice (CJEU) has ruled that Christian Louboutin’s famous red sole does not consist solely of ashape that significantly increases the value of aproduct, and therefore can be registered as atrademark. This is an important victory for the fashion designer in the long-running battle concerning red-soled shoes...

Licensing requirements for OTC Derivatives Providers published (and deadline extended)
ENSafrica, August 2018

On 27 July 2018, the newly established Financial Sector Conduct Authority (“FSCA”) published the final Conduct Standard, No 1 of 2018, setting out the Criteria for Authorisation of OTC Derivatives Providers (“ODPs”). The Regulations under the Financial Markets Act, 2012 (the “FMA Regulations”) were promulgated in February of this year, effectively setting a deadline of 8 August 2018 for ODPs to apply for licences...

Catch for newly appointed management board members?
Wardynski & Partners, August 2018

A gap in legal provisions might mean criminal liability for management board members for not filing financial statements on time. Amendments enacted in mid-March 2018 to the National Court Register Act have already caused some confusion and alot of trouble for companies whose management boards solely comprise foreigners...

The OECD releases discussion draft on financial transactions
ENSafrica, July 2018

In addition to providing guidance on a number of transfer pricing related issues relating to aligning transfer pricing outcomes with value creation, the 2015 final report on Base Erosion and Profit Shifting - Actions 8 to 10 mandated follow-up work on the transfer pricing aspects of financial transactions. The Organisation for Economic Co-operation and Development’s (“OECD’s”) Committee on Fiscal Affairs Working Party No...

 

 

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