Doleful Dole Dodger Discovered

bystander@hotmail.co.uk (bystander@hotmail.co.uk) — Thu, 02 Sep 2010 17:37:35 GMT

This report, apart from the cheat's profession, is of a pretty common crime that most magistrates see a few times a year. Guidelines steer us towards fines in most cases (often the offender has little cash anyway), but a feature of recent years has been the prosecution's refusal to apply for an order to repay the money. Every court has to consider compensation in every relevant case, but a DSS (as was) prosecutor explained to me, as kindly as possible, that the Department is far better at recovering money than the clumsy courts' system. That makes sense when you think about it as virtually everyone gets some sort of benefits throughout their lives, even if it's only the state pension, so money can be recovered from that in due course.

Unpaid Skiving?

bystander@hotmail.co.uk (bystander@hotmail.co.uk) — Thu, 02 Sep 2010 11:18:06 GMT

Tonight, 2nd September, at 7.30 on ITV try not to miss the half-hour exposé (or so it is trailed) of sloppily-run community punishment projects. More later, once we have seen it.

adammizera

mizera@robic.com (Adam Mizera) — Thu, 02 Sep 2010 10:39:47 GMT

Le USPTO a publié une nouvelle proposition de lignes directrices pour les examinateurs pour évaluer le critère d’inventivité suite à l’application de la jurisprudence après l’affaire KSR, une décision de la Cour suprême qui avait récemment redéfini les critères pour évaluer l’inventivité d’une invention aux États-Unis. Le document contient beaucoup d’exemples extraits tirés de la [...]

Voir l’annonce du USPTO

Voir la proposition de nouvelles lignes directrices

Extrait pertinent du document:

Many basic approaches that a practitioner may use to demonstrate nonobviousness also continue to apply in the post-KSR era. Since it is now clear that a strict TSM approach is not the only way to establish a prima facie case of obviousness, it is true that practitioners have been required to shift the emphasis of their nonobviousness arguments to a certain degree. However, familiar lines of argument still apply, including teaching away from the claimed invention by the prior art, lack of a reasonable expectation of success, and unexpected results. Indeed, they

may have even taken on added importance in view of the recognition in KSR of a variety of possible rationales.

adammizera

mizera@robic.com (Adam Mizera) — Thu, 02 Sep 2010 10:20:08 GMT

Rapport d’un sondage effectué par Fasken Martineau, tel que rapporté par IPFontline Donnée intéressante: seulement 56% des répondants se disent propriétaires de PI sous forme de droit d’auteur – alors que la réponse devrait être proche de 100%

Rapport d’un sondage effectué par Fasken Martineau, tel que rapporté par IPFontline

Donnée intéressante: seulement 56% des répondants se disent propriétaires de PI sous forme de droit d’auteur – alors que la réponse devrait être proche de 100%

Legal Issues on IT Outsourcing of Financial Institutions

Thu, 02 Sep 2010 09:13:17 GMT

By Li Jinnan and Jiang Hualiang, King & Wood's Banking & Finance Practice

With the recent development of the service outsourcing industry, an increasing number of financial institutions (including banks, securities companies, insurance companies and fund management companies) use financial service outsourcing to reduce costs, enhance core competitiveness, and accomplish strategic goals. Financial institutions are able to benefit significantly from IT outsourcing, which is an important part of financial service outsourcing. At the same time, they must also confront the managing risks that are associated with IT outsourcing. Based on our past experience with counseling on IT outsourcing to financial institutions, the followings are the primary legal issues relating to the terms in and execution of IT outsourcing agreements, using banking institutions ("banks") as examples. The discussion will focus on how banks should manage potential risks from negotiating such an agreement.

I. Scope of Outsourcing by and Management Responsibilities of a Bank
A. Scope of Outsourcing

The scope of outsourcing is the first decision a bank needs to make before outsourcing its services. Currently, the China Banking Regulatory Commission ("CBRC") has not established general restrictions regarding the scope of IT outsourcing that a bank can engage in. However, a bank should not outsource its IT technology management responsibilities and must report to the CBRC or its branch offices any important outsourcing engagement (see below Section I Subsection C, Report to Supervisory Authority or Notice to Client). Therefore, relevant supervisory authorities may not permit a bank to outsource the management or maintenance of some of its highly confidential or core information systems.

B. Cross-border Outsourcing

In recent years, a number of financial institutions have engaged outsourcing service providers in India, China, and other developing countries because of the lower labor and operational costs in these countries. However, the accumulation of outsourcing service to one or a few countries may amplify the "Country Risk" of the information. Once an offshore outsourcing country faces an incomprehensible problem, the financial institutions outsourcing their business to such a country may suffer irreparable harm. Therefore, the supervisory authorities in many countries tend to take a cautious regulatory approach towards the cross-border outsourcing implemented by banks.

The CBRC's Guidelines on Risk Management of Outsourcing by Banking Institutions ("Risk Management Guidelines") require that a bank which conducts cross-border outsourcing shall prudently assess the legal and regulatory risks to ensure the security of the clients' information. The Risk Management Guidelines also establish that such a bank must make sure the regulatory authority at the place where the service provider is located have signed a memorandum of understanding or other agreements with China's banking regulatory authority. Moreover, the CBRC's Guidelines on Risk Management of Commercial Banks' Information Technology ("Technology Management Guidelines") require that the board of directors shall ensure a bank operates the core system containing client information, account information and product information independently and within the territory of China.

C. Report to the Supervisory Authority or Notice to Client

According to the Technology Management Guidelines, the banks shall exercise precautions when implementing important outsourcings (such as data centers and information technology facilities), and shall report these outsourcings to the CBRC or its branches in writing. In addition, the Guidelines require that any outsourcings involving client information be deemed an important outsourcing of the bank. As the existing PRC law is unclear about the definition of "important outsourcing," we suggest that the banks consult with the competent supervisory authority at their domicile if they are uncertain about whether the outsourcing to be performed will be regarded as an important outsourcing subject to reporting duty to CBRC.

The Administrative Rules on Electronic Banking ("E-Banking Rules") provide that banks shall report any outsourcing of electronic banking. According to the E-Banking Rules, a bank shall report to the CBRC before outsourcing the general design and development of electronic banking transaction processing system, authorization management system, data backup system, and other confidential information management and transmission systems.

In addition, the Risk Management Guidelines require the bank to submit an outsourcing appraisal report to the local branch of the CBRC regularly. However, banks will need further clarification or detailed guidance of the relevant authority on compliance.

In addition to the responsibility of reporting to the supervisory authority, in certain circumstances, the banks also need to inform the relevant clients about their outsourcing arrangement. For example, the Technology Management Guidelines require that a bank shall notify clients any outsourcing involving the client information.

D. Internal Approval

According to the relevant regulations, all IT outsourcing contracts of a bank shall be approved by the bank's department of information technology risk management, legal department, and its information technology management committee. Certain IT outsourcing contracts may require the approval of the board of directors.

E. Compliance of Offshore Regulatory Authority

When implementing outsourcing, the foreign-invested commercial banks in China shall comply with the requirements of the CBRC as well as those of the regulatory authorities in their home country. Therefore, these banks need to manage the risk arising from the regulatory difference between China and their home country.

II. Summary Terms of Outsourcing Contracts

The CBRC requires that banks must enter into IT outsourcing contracts when engaging IT outsourcing services. The contracts shall be in written forms and clearly provide the rights and responsibilities of the parties. An IT outsourcing contract usually consists of the outsourcing agreement and the service level agreement.

A. Outsourcing Agreement

An outsourcing agreement shall at least contain the following terms: (1) the scope and standards of the outsourcing service; (2) the confidentiality and security of the outsourcing service; (3) the continuity of the outsourcing service; (4) the auditing of and inspection on the outsourcing service; (5) the dispute resolution arrangement of the outsourcing service; (6) the transitional arrangement upon revision or termination of the agreement; and (7) the liabilities in case of default.

The outsourcing agreement shall have both effective binding force on the parties and a certain amount of flexibility. An inadequate outsourcing agreement may lead to uncertainties during the service provider's performance of the IT outsourcing service. In practice, some outsourcing agreements do not include detailed provisions to govern the service provider's performance, quality of service, and rights and responsibilities of the parties. In this case, disputes may arise and the business that the bank outsources may be at risk if the parties are unable to timely execute supplementary agreements to address new situations, issues, and risks that arise during the performance of the outsourcing agreement. For these reasons, the banks should strive to make the outsourcing agreement as clear, specific, and meticulous as possible when drafting the agreement. However, due to the nature of IT outsourcing, a bank's need varies in different phases of business development (especially when two parties have established a long-term cooperative relationship). Therefore, the parties may need to amend the agreement as needed to make sure the performance of the agreement will not be affected. If the outsourcing agreement lacks flexibility, the time budget and financial costs that the parties will need to bear for additional negotiations may increase significantly. The continuity of the bank's business may also be compromised. Therefore, the outsourcing agreement should be flexible enough to be amended to adapt to the new situations appearing during the execution of the agreement.

B. Service Level Agreement

The service level agreement is entered into by the bank that plans to outsource its business and the outsourcing service provider regarding the assessment of business performance and service quality. The purpose of such an agreement is to evaluate, monitor, and control the operational and financial risks in relation to the IT outsourcing service. A reasonable and meticulous service level agreement is an integral part of a sophisticated IT outsourcing agreement. As an internationally accepted standard to evaluate IT outsourcing service, the service level agreement is a legal document executed by the bank and the service provider and is crucial to the bank's supervision and management of the service provider.

CBRC requires that a bank considers the following factors when drafting a service level agreement: (1) whether the agreement has established qualitative and quantitative performance indicators to evaluate the service provided to the bank and relevant clients is sufficient; (2) whether the agreement appraises the performance of the service provider through the service quality report, periodical self-evaluation, and internal or independent external auditing; and (3) whether the agreement includes any steps to help the service provider to improve the procedures and performance when the service provider is unable to meet the agreed standards or indicators.

In practice, Chinese banks and their outsourcing service providers are inexperienced in formulating service level agreement. Therefore, the established terms might not suffice in protecting the interests of the parties. For example, the agreement may not include a term to protect the bank's interests where material technical errors arise during the outsourcing service provider's performance of the agreed service. In essence, both parties should exercise due care when formulating the service level agreement to ensure that the agreement is able to provide good protection to both parties.

As IT outsourcing for financial institutions in China continues to develop, relevant supervisory regulations are being updated and improved to keep up the latest development of the IT outsourcing practice of banks. Similar to the IT outsourcing of banks, the IT outsourcing of securities companies, futures companies, fund management companies, and insurance companies also involve many important legal and regulatory issues. The financial institutions engaging in IT outsourcing services shall effectively manage their outsourcing contracts to control the risks and make sure that the performance of these contracts will not compromise their responsibilities to the clients and the supervisory authority, as well as their compliance with regulatory requirements.

viharg

viharg@yahoo.com (Vihar Georgiev) — Thu, 02 Sep 2010 07:24:05 GMT

The 2009 Ageing Report of the Committee of the Regions provides some interesting proposals for managing the ageing of populations in the European Union. The topic is very important given the fact that 9 out of the 10 countries with … Continue reading →

The report proposes three main priorities:

(1) healthy ageing;

(2) labour market participation and productivity; and

(3) access to services and facilities.

The idea is to merge those priorities in the Europe 2020 strategy.

viharg

viharg@yahoo.com (Vihar Georgiev) — Thu, 02 Sep 2010 06:56:25 GMT

The European Commission has adopted a decision outlining the criteria necessary to achieve good environmental status for Europe’s seas. The decision The Commission decision on the criteria for Good Environmental Status of marine waters focuses on different aspects of marine … Continue reading →

Member States now have to develop marine strategies which serve as action plans for applying an ecosystem-based approach to the management of human activities.

ALJ Rogers Issues Final ID Finding No Infringement In Bulk Welding Wire Investigation

Thu, 02 Sep 2010 01:48:05 GMT

On August 31, 2010, ALJ Rogers issued a lengthy Final Initial Determination in Inv. No. 337-TA-686, Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire, finding that...

En Banc Federal Circuit Affirms ITC Decision on Patent Misuse

Thu, 02 Sep 2010 01:43:12 GMT

On August 30, 2010, the en banc Federal Circuit affirmed the decision of the ITC in Inv. No. 337-TA-474 (Princo Corp, et al. v. International Trade Commission, et al., Fed. Cir. 2007-1386). The...

The Ministry of Justice has a website called You Be The Judge that takes the reader through the decision-making processes used in court. I am very pleased to see it; my original motive in setting us this blog was to try to give people some idea of how the summary courts work. I haven't got the time or the resources to set up anything like the MoJ's effort, so it's a welcome contribution to people's understanding of courts and their work.

159: IPC issues first refusal to accept an application

AngusWALKER@bdb-law.co.uk (Angus Walker) — Wed, 01 Sep 2010 16:17:44 GMT

This is entry number 159, first published on 1 September 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.

Today's entry reports on the Infrastructure Planning Commission's first refusal of an application.

Lucy the Elephant v. Edmonton (City)

Wed, 01 Sep 2010 15:10:30 GMT

Case considered: Reece v. Edmonton (City), 2010 ABQB 538 Lucy is a 34 year old elephant who lives in the Edmonton Valley Zoo. In recent years Lucy has attracted significant media and celebrity attention, as animal welfare activists have campaigned for her transfer to a warmer climate (details on the campaign and Lucy herself are documented [...]

Case considered: Reece v. Edmonton (City), 2010 ABQB 538

Lucy is a 34 year old elephant who lives in the Edmonton Valley Zoo. In recent years Lucy has attracted significant media and celebrity attention, as animal welfare activists have campaigned for her transfer to a warmer climate (details on the campaign and Lucy herself are documented here). Activists insist that Lucy is in distress because of her living conditions in the Edmonton zoo. Media celebrities including William Shatner and Bob Barker have called upon the City of Edmonton to allow Lucy to move south. Lucy’s plight has attracted the attention of the local media as well (see “Free Lucy the elephant: protesters“, CBC News). The Valley Zoo insists Lucy is fine and cannot be safely moved.

In the Fall of 2009, ZooCheck Canada and the People for the Ethical Treatment of Animals (PETA) retained Ontario lawyer Clayton Ruby to advise them on possible legal remedies for Lucy. In February 2010 ZooCheck, PETA, and a local Alberta resident (Tove Reece) filed an Originating Notice in the Alberta Court of Queen’s Bench seeking a judicial declaration that the City of Edmonton (as operator of the Valley Zoo) was contravening section 2 of the Animal Protection Act, R.S.A. 2000, c. A-41, in its treatment of Lucy at the Valley Zoo. Associate Chief Justice John Rooke heard the ZooCheck application along with the City’s motion to strike the proceeding under Rule 129 of the Alberta Rules of Court, Alta. Reg. 390/1968. In Reece v. Edmonton (City), 2010 ABQB 538 Justice Rooke grants the City’s motion to strike on the basis that the ZooCheck/PETA application is an abuse of process for two reasons: (1) the application does not conform with the legislative path for bringing this issue to the Court; (2) no individual can bring a civil action to enforce criminal law. Justice Rooke also makes some obiter statements on standing which I comment on below.

(more…)

Update from BIS’s Update 2010

Wed, 01 Sep 2010 01:16:28 GMT

The Bureau of Industry and Security’s Update 2010 conference started off this morning with free coffee and pastries, a military honor guard procession, and the Star Spangled Banner. At first, it was hard to tell whether I was attending a military parade or a sporting event. But, of course, I was in a stuffy ballroom [...]

Ssssh!

bystander@hotmail.co.uk (bystander@hotmail.co.uk) — Tue, 31 Aug 2010 13:35:33 GMT

We dealt with a pretty unusual warrant last week. The officer said that he was attached to the ******** squad, and that he wanted to search for some ****, or at least evidence of it, because he suspected that the proceeds of the **** were being used to fund ********'s activities. The Information carried some heavily emphasised stuff about Public Immunity.
The application satisfied us, and we granted it.

Sorry I can't say more.

Not So Gilded Youth

bystander@hotmail.co.uk (bystander@hotmail.co.uk) — Tue, 31 Aug 2010 12:10:55 GMT

Police and the Serious Fraud Office have been asked to investigate the multi-million-pound purchase by a teenage magistrate of a successful construction firm that then went bankrupt while he led an extravagant lifestyle.

Gareth Darbyshire, who was only 19 when he bought the company, saw it collapse within months, throwing dozens of people onto the dole and devastating the community at its base in west Wales.

As his new business piled up debts, Darbyshire, who is one of Britain’s youngest magistrates, drove around in Ferraris and a customised Range Rover, stayed in a suite at Claridge’s in London and went on lavish trips to Ibiza and Dubai.

TPT Construction Ltd has been forced into liquidation less than 16 months after Darbyshire, now 21, bought it in a £7m deal. The total amount claimed by creditors is understood to exceed £4.5m.

No doubt he will already have had a chat with his Clerk and his Bench Chairman to clarify matters.

US Insurance Inquiry - Possible Fallout for China?

Tue, 31 Aug 2010 09:52:33 GMT

By Yuan Min, Partner, King & Wood's Insurance Group

Recently, the Associated Press reported that the New York State Attorney General has served subpoenas on two major multi-national life insurers as part of that office's inquiry into those companies policies for paying death benefits to life insurance policyholders' beneficiaries. This news comes after Bloomberg News reported that the United States' Department of Veterans' Affairs has begun an investigation into the possibility that life insurance companies are improperly benefiting by holding onto death benefit proceeds after these should have been paid to death benefit beneficiaries.

Specifically, Bloomberg News reported that many major life insurers standard practice is for the companies not to pay a life insurance death benefit in a lump-sum. Instead, many life insurance companies are holding these cash benefits in their own investment accounts so that the companies can invest the cash and profit on their own behalf. The report comments that these companies are making significant profits for themselves while they pay the parties that are entitled to the death benefit a very low interest rate for allowing the company to use the money for its own interests. In addition, the report says that these insurers have tended to mislead these beneficiaries about how well the companies are protecting this money on the beneficiaries' behalf.

With this kind of United States Government investigation into life insurance company practices, it raises the question should life insurers working in China be concerned about a government regulatory authority investigation into their death benefit payment practices?

In general, the Chinese government tends to place a lot of emphasis on making sure policyholders understand the insurance policies they buy, and the government tends to hold insurers accountable when they fail to properly explain insurance policies to policyholders. Therefore, we tend to think the answer is yes, insurance companies should be concerned that the Chinese government may place more scrutiny on their death benefit payment practices because of the United States' government's investigation into life insurance death benefit payment practices.

We always recommend our insurance client's stay abreast on Chinese government regulatory authorities' legislative, regulatory, and enforcement activities. At present, we are not aware that the Chinese government will begin to place more scrutiny on insurers' death benefit payment practices. In turn, we believe that the best course action for insurers working in China is for them to review their death benefit claims handling procedures to make sure that they are adhere to the Chinese law's requirements for death benefit payments. This internal procedural review will help insurers in case the Chinese government does decide to place company practices under more scrutiny.

If you have any questions about what exactly the Chinese law's requirements are for death benefit payments, or any other Chinese legal compliance questions please contact us.

Forbidden Places for Tourism and Trade

Tue, 31 Aug 2010 01:35:16 GMT

Please make plans to attend the Forbidden Places -- Tourism and Trade seminar on Friday, September 24, 2010. This seminar will take place at the J.W. Marriott Hotel, Miami, Florida. This half-day seminar will address a variety of recent regulations administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. Topics to be addressed include travel to and trade with restricted countries, immigration aspects of tourism to sanctioned countries, and representing a client who is the subject of an investigation or penalty by the OFAC.

Click on the highlighted link above for a pdf of the brochure. Our featured luncheon guest speaker is Charles Bishop, Sanctions Coordinator, OFAC. Mr. Bishop has primarily been involved with administering the Cuban Assets Control Regulations, including license applications for Service Providers, Carrier Service Providers, Travel Service Providers, and Remittance Forwarders.

Please call The Florida Bar's International Law Section at 850-561-5831 to register over the phone, fax your registration to 850-561-5816 or register on-line at www.floridabar.org/CLE. Attorneys who attend will receive Continuing Legal Education (CLE) credits.

A block of rooms has been reserved at the J.W. Marriott Hotel Miami at the rate of $114 single/double occupancy. To make reservations, please call the hotel directly at (305) 329-3500. Reservations must be made by September 3, 2010 to assure the group rate and availability. Group rate is valid 3 days before and 3 days after the event, based on availability. After September 3rd, the group rate will be granted on a "space available" basis.

----------------

For comments or questions, please contact me.

Peter Quinter, Partner, Customs and International Trade Department

pquinter@becker-poliakoff.com or (954) 270-1864

DDTC Eliminates Requirement for Prior Notice of SME Proposals

Tue, 31 Aug 2010 00:10:24 GMT

As has been anticipated since March 29, 2010, when the State Department’s Directorate of Defense Trade Controls (“DDTC”) issued a Notice of Proposed Rulemaking eliminating the advance notice and approval requirements of section 126.8 of the International Traffic in Arms Regulations (“ITAR”), the agency has now officially eliminated those requirements and deleted the section from [...]

US Court Tells Commerce Department It Cannot Impose Countervailing Duties When It Uses The Non-Market Economy Methodology In A Companion Antidumping Case

Mon, 30 Aug 2010 18:50:34 GMT

Chief Judge Jane A. Restani of the United States Court of International Trade (“CIT”) on August 4, 2010 ordered the United States Department of Commerce (“DOC”) to forego the imposition of countervailing duties on pneumatic off-the-road tires from the People’s Republic of China. Her decision, in GPX International Tire Corporation v. United States, was based on her ruling that US law prohibited DOC from imposing duties higher than the amount needed to offset subsidies on imported products.

The problem for DOC, inherent in the case and as posed by Judge Restani, is that DOC uses surrogate values presumed to be unsubsidized, rather than a company’s actual production costs, to calculate Normal Values. DOC compares these Normal Values in its non-market economy antidumping methodology to the export price, a methodology that should, at least in theory, offset any subsidies on the production of the merchandise (because the comparison has been taken against unsubsidized inputs through surrogate values). If DOC were to impose countervailing duties to offset subsidies that benefit the production of the merchandise, then it would be offsetting the same subsidies twice.

Double counting of subsidies does not occur with DOC’s market economy dumping methodologies (19 C.F.R. §§ 351.405 & 351.406) because, in those cases, Normal Value is calculated based on actual prices in the foreign market and actual costs incurred in that market. Thus, if there were any subsidies imbedded in those prices or costs, they would not be offset by the antidumping methodology and would need to be addressed separately in a countervailing duty investigation.

Judge Restani’s August 4, 2010 decision followed an earlier decision in the GPX case where she sent the matter back to DOC to find a way to avoid the double counting problem. In the earlier case, Judge Restani found that, while DOC had discretion to impose countervailing duties on Chinese merchandise while still considering China to be a non-market economy (the central issue in dispute), DOC had to avoid double counting of subsidies when it applied the countervailing duty law and the antidumping non-market economy methodology to the same products at the same time.

DOC interpreted Judge Restani’s earlier decision as giving it three options: (a) not apply the countervailing duty law; (b) apply the market economy antidumping methodology in that case; or (c) lower the cash deposits imposed in the antidumping case by the amount of cash deposits imposed in the countervailing duty case. DOC decided to lower the antidumping deposits by the amount of the countervailing duty deposits. Judge Restani found that option contrary to US law because there is no provision in the antidumping statute to lower duties by the amount of countervailing duties and because that option is unreasonable as it requires the parties to go through the expense of countervailing duty proceedings that are essentially useless.

Judge Restani ordered DOC to forego imposing countervailing duties on off-the-road tires from China because DOC demonstrated in that case that it did not have the ability to determine the degree to which double counting was occurring in its non-market economy language and offset it directly within that methodology. Thus, the CIT has left open the option in future cases for DOC to try new methodologies to eliminate the double counting within the antidumping nonmarket economy methodology. DOC continues to have the option of imposing countervailing duties to products from China in cases without a companion antidumping case on the same products, or in cases in which it uses its discretion to recognize a market-oriented industry (“MOI”). In that latter instance, considering MOI status, it could continue its general policy of not recognizing China as a market economy while using a market economy methodology for a particular industry. DOC has never recognized an industry in China as “market-oriented,” but it does have the statutory authority to decide to apply market economy methodologies on a case-by-case basis.

DOC, or the petitioners in the GPX case, have the right to appeal Judge Restani’s decision to the Court of Appeals for the Federal Circuit (“CAFC”). Should they do so, that higher court could overturn Judge Restani’s decision, affirm it, or modify it. Were the CAFC to overturn the decision, DOC would be free to apply countervailing duties to the same products on which it used the non-market economy antidumping methodology. In deciding whether to appeal, however, DOC must consider the risk of appealing and losing. Right now Judge Restani’s decision is binding on DOC only in the GPX case: it does not set precedent that DOC would be forced to follow in all future cases. Were DOC to appeal and have the CAFC affirm Judge Restani’s decision, that affirmation would be binding precedent, prohibiting DOC from applying both the CVD law and the non-market economy methodology to the same merchandise.

Judge Restani’s decision was based solely upon US law. However, China has challenged at the World Trade Organization, on the same grounds of double-counting, the application to China of the countervailing duty law while DOC refuses to recognize China as a market economy. Judge Restani’s decision in GPX demonstrates the value, at least to the companies involved, of appealing to the US court, rather than relying solely on WTO challenges. As we noted in earlier articles on this blog (US Court Decision Ought to Change Chinese Thinking and WTO Challenges Not Always a Panacea for Respondents in Trade Litigation), the WTO process is designed to vindicate governmental interests, but does not often provide much comfort or relief for commercial interests. Appeals in the US courts, by contrast, are a right belonging to the companies themselves that have been hurt by the agency’s challenged actions and, when those companies win in U.S. courts,, the remedy can provide immediate retroactive relief.

The Issues and Challenges with Public Participation in Energy and Natural Resources Development in Alberta

Mon, 30 Aug 2010 15:06:50 GMT

Introduction Public participation is a key feature of energy and natural resources development in Alberta. The provincial government often expresses its desire for participation by Albertans in its policy making and planning processes. At the project approval stage, project proponents regularly conduct public consultation programs and regulatory boards hold public hearings and award costs to interveners. Yet [...]

Introduction

Public participation is a key feature of energy and natural resources development in Alberta. The provincial government often expresses its desire for participation by Albertans in its policy making and planning processes. At the project approval stage, project proponents regularly conduct public consultation programs and regulatory boards hold public hearings and award costs to interveners.

Yet there are signs that public participation is not all that it seems in the Alberta energy and resources development context. Albertans seem frustrated and dissatisfied with the current level or type of public participation available: see, for example, Dan Woynillowicz & Steve Kennett, “Passage of Bill 46 Perpetuates EUB Shortcomings” (2007). Applications for leave to appeal decisions of energy tribunals on issues of public participation and procedural fairness seem to be on the rise: see, for example, Prince v. Alberta (Energy Resources Conservation Board), 2010 ABCA 214, Cheyne v. Alberta (Utilities Commission), 2009 ABCA 94, and Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 52.

The Canadian Institute of Resources Law (CIRL) at the University of Calgary is currently engaged in a research project, funded by the Alberta Law Foundation, which is focusing on legal and policy questions in relation to public participation in the Alberta energy and natural resources development context. To obtain input on the issues and challenges facing public participation in this context, CIRL held a Round Table discussion at the University of Calgary on April 16, 2010. There were 20 participants in attendance, all of whom have experience with public participation issues in the energy and natural resources development context. There was representation from landowners, regulators, industry, the regulatory bar, environmental and natural resources organizations, multi-stakeholder consultation groups, policy and energy consultants, and academia.

(more…)

Recent Articles in International Law from LexMonitor

Doleful Dole Dodger Discovered

Unpaid Skiving?

adammizera

adammizera

Legal Issues on IT Outsourcing of Financial Institutions

viharg

viharg

ALJ Rogers Issues Final ID Finding No Infringement In Bulk Welding Wire Investigation

En Banc Federal Circuit Affirms ITC Decision on Patent Misuse

Recommended

159: IPC issues first refusal to accept an application

Lucy the Elephant v. Edmonton (City)

Update from BIS’s Update 2010

Ssssh!

Not So Gilded Youth

US Insurance Inquiry - Possible Fallout for China?

Forbidden Places for Tourism and Trade

DDTC Eliminates Requirement for Prior Notice of SME Proposals

US Court Tells Commerce Department It Cannot Impose Countervailing Duties When It Uses The Non-Market Economy Methodology In A Companion Antidumping Case

The Issues and Challenges with Public Participation in Energy and Natural Resources Development in Alberta