|
Legislative and Regulatory Update
|
You
now have the option of customizing
your manupatra round-up .This means that you get updates
on the areas of interest that you select .You may change your
preferences at any time you wish to. If you do not customize
your round up you will continue to get the updates on all
areas
To
customize your round-up now click here.
_____________________________________________________________________ |
|
India Centric
Online Legal & Business Database
Bringing
forth new efficiency and unparalleled results to research
efforts. |
| In This Issue |
|
[No.116]
March 20,
2005 |
|
|
|
|
To keep you informed about the latest Legislative
and Regulatory information manupatra.com
publishes this e-roundup highlighting the recent changes
brought about by the Notifications/Acts/Bills /Ordinances
etc.
About
manupatra.com
../
provides comprehensive and easy to use legal and related
information over the Internet .Our database covers Central
Laws , Judgments of Supreme Court and High Court (full
text of the judgments from 1950 onwards ), Orders of
Tribunals , Bills , Notifications, Circulars and
more
Key features of manupatra are
 |
Content is derived from reliable primary and
secondary sources |
|
Database is updated on a daily
basis |
|
Electronic Ready Reckoner to view the
judgments under a particular section of an Act /
Subject |
|
Powerful search engine with user friendly
interfaces |
|
Search in any one court/year or multiple
courts/year |
|
Hyper-linking of
documents |
|
Updated
modules on WTO, Anti Dumping, Arbitration,
Investment Destinations Abroad, Capital Markets,
Taxation, Environment, Cyber & IT Laws, IPR,
Corporate Laws, Industrial Policies, Foreign
Trade,
Forex & Banking and
more |
For subscription to manupatra.com or for more
details please log onto ../
or call us at 0120 2531811 or send an email to : contact@manupatra.com
If at any stage you wish to stop receiving the
e-roundup please click here to unsubscribe. |
|
| |
|
International Legal
News |
|
Cases
Source:
Westlawinternational.com
The United States
Court of Appeals for the Federal Circuit has held that the Internet auction site
eBay has infringed a patented system of selling goods through an electronic
network of consignment stores. The patent permits prospective buyers to
electronically browse and search for goods stored in databases of consignment
stores' uploaded information. The Court ruled that the patent was infringed by
eBay's fixed-price purchasing feature, which allows customers to purchase items
listed on eBay's website for a fixed, listed price. That feature transferred
ownership of a good for sale by modifying the data record, as claimed in the
patent's "transaction processor" limitation.
Mercexchange, L.L.C.
v. eBay, Inc.
A buyer of hog
casings satisfied the likelihood of prevailing on the merits requirement, for
issuance of a preliminary injunction barring a seller from entering into an
output contract with another buyer, through showing that its contract with the
seller satisfied Missouri and North Carolina Uniform Commercial Code statute of
frauds requirement that contracts for sale of goods in excess of $5,000 be
signed by the party to be charged, even though some documents constituting the
contract were e-mails. The inclusion of the name of the sender of the e-mail,
and the sender's pressing of the "send" button on the computer,
constituted the authentication of document required by the UCC, and was a valid
electronic signature under the Electronic Transactions Act (UETA).
International
Casings Group, Inc. v. Premium Standard Farms, Inc.
A company that
provided travel and meeting planning services to Chapter 11 debtors prepetition
was not a mere conduit for the preferential payments that it received from the
debtors, despite the company's contention that the payments were not put to its
own use or purpose, but rather were forwarded to hotels and airlines to pay for
meetings scheduled on the debtors' behalf. Therefore, the mere conduit exception
to the trustee's ability to recover preferential transfers did not apply. The
evidence established that the company had the power to decide who was paid with
the funds received from the debtors, including the company's own creditors.
In re U.S.
Interactive, Inc.
A contract between a
lender and a borrower had met the requirements of ordinary contract formation
under Mississippi law, as well as the requirement that the agreement clearly and
unmistakably require arbitration of whether the parties agreed to arbitrate
issues related to jurisdiction before the arbitrator, in order for the
arbitration provision to require arbitration of arbitrability. The arbitration
provision provided that "any Claim shall be resolved by binding arbitration
in accordance with . . . this Provision," the provision listed examples of
claims that were subject to arbitration, but the arbitration of the arbitration
provision itself was not listed.
Citifinancial, Inc.
v. Newton
Under New Jersey
law, an arbitration agreement signed by a minor's mother on behalf of the minor,
as a condition to the minor's entry into a commercial recreational facility and
participation in its activities, stating that the minor had to file a demand
before an arbitration association if the minor was injured and wanted to make a
claim, was valid and enforceable. Furthermore, no statute, rule or decision
authorized the mother of the minor, who fractured his femur while skateboarding
at a skatepark facility, to sign a pre-tort liability waiver, limiting the
liability of the skatepark facility to exclude negligent conduct. Consequently,
the pre-tort liability waiver was void from its inception. These were issues of
apparent first impression.
Hojnowski v. Vans
Skate Park
A finding that the
images in an accused game's video display were sufficiently different from the
largely scènes à faire images used in the copyrighted display of a video
arcade golf game to avoid infringement was not an abuse of discretion. The
copyrighted display used imaginary courses and generic players, while the
accused display used real courses and golfers, and added extra graphical
features.
Incredible
Technologies, Inc. v. Virtual Technologies, Inc.
For purposes of an
Indiana statute governing home detention and allowing a sentencing court to
require an offender to maintain a monitoring device on the offender's person, a
global positioning system was a "monitoring device." The system would
record more than whether the offender was present at or absent from home.
However, the fact that the system would tell corrections officials where the
offender was when the offender was not at home did not destroy its status as a
device that broadcasts only location.
Chism v. State
Under Pennsylvania
law, not only did a school district employee's conduct of unintentionally
bringing a loaded gun onto school property constitute neglect of duty, the
employee's act of lying and of obstructing a lawful investigation gave the
school district authority to take disciplinary action against the employee. The
school district was not required to have a policy outlining the manner in which
employees might bring guns onto school grounds as a prerequisite to disciplining
the employee because that conduct was so obviously prohibited that a policy to
that effect would be superfluous. The employee's record as an exceptional
employee did not excuse his conduct. If anything, his exceptional record would
factor into the amount of discipline he would receive.
Bolden v. Chartiers
Valley School Dist.
The California court
properly exercised jurisdiction to hear a wrongful death action brought under
the federal Jones Act by a seaman's son against a private shipping company, in
light of the state Constitution's broad conferral of jurisdiction. The court had
concurrent subject matter jurisdiction over Jones Act cases, and any dispute
whether the company regularly did business in California went to personal
jurisdiction, which the company waived by accepting personal service and making
a general appearance.
Donaldson v.
National Marine, Inc.
A landlord's demand
that a tenant disclose the social security numbers of her apartment's occupants
and threatening her with eviction if she did not comply could support a claim
under New York's consumer protection statute. Although a local law permitted the
landlord to determine whether the apartment exceed maximum permitted occupancy,
it did not permit it to ask about social security numbers or to threaten
eviction for noncompliance. Addressing an issue of nationwide first impression,
a New York trial court noted that, as between two private citizens or entities
and where no statute nor governmental regulation requires disclosure, a state
consumer protection statute may be utilized to assert a claim that a social
security number be protected from disclosure as confidential information.
Meyerson v. Prime
Realty Services, LLC.
News
The US Senate has
passed legislation to move the a terminally ill womans case into the federal
courts, the bill allows woman’s case to be heard in a federal court. This
legislation permits a federal district judge to consider a claim on behalf of
Terri for alleged violations of Constitutional rights or federal laws relating
to the withholding of food, water or medical treatment necessary to sustain her
life. Once a new case is filed, a federal district judge can issue a stay at any
time, 24 hours a day. A stay would allow Terri to be fed once again. The judge
has discretion on this decision.
If a new suit goes
forward, the federal judge must conduct what’s called “de novo” review of
the case. De novo review means the judge must look at the case anew. The judge
need not rely on or defer to the decisions of previous judges. The judge also
may make new findings of fact.
Claims from
investors who lost money in the collapse of WorldCom Inc., have been settled,
JPMorgan Chase & Co., one of the largest financial institutions in the
United States, agreed to pay $2 billion to settle the claims.The settlement by
one of the defendants in the lawsuit came a day after WorldCom's former chief
executive, Bernard Ebbers, was found guilty of fraud, conspiracy and false
regulatory filings in the $11 billion accounting fraud at WorldCom. The company
is now on a course of revival and now operates under the name MCI Inc. Two small
investment banks also announced settlements.The remaining defendants, in
addition to the 11 former directors, are auditing firm Arthur Andersen and
former WorldCom board member Bert Roberts.
A bill which empowers the Food and Drug
Administration to regulate the sale, marketing and advertising of tobacco
products, and require companies to list all ingredients added to cigarettes and
other forms of consumer tobacco, was blocked last year in the senate, it
has now been revived.
As of now, in the United States, no federal agency has the authority to require
tobacco companies to list the ingredients that are in their products. The bill
also seeks to empower the Food and Drug Administration to reduce nicotine
levels, presently it can only create a new category of the product, but does not
have the power to reduce levels of nicotine in cigarettes.
A special death
penalty review tribunal is being set up to handle the huge number of appeals
against death sentences. The Supreme Court is currently recruiting and training
legal professionals to sit on the Tribunal. Even though China's criminal procedure
requires that the Supreme Court reviews every death sentence passed in the
country to help avoid wrongful executions, but the National Peoples Council
Standing Committee revised some laws in the early 1980s, amid a rise in violent
crimes, to allow the Supreme Court to transfer the review of death sentences for
some offences of violence, such as homicide and arson, to higher provincial
courts. More than 70 offences carry the death penalty under Chinese law,
including many non-violent crimes such as smuggling and corruption.
"Restoring the Supreme Court's power to review death sentences will help
enhance the consistency of the legal system as well as the judicature's
authority," Li Daomin, president of Henan Provincial High People's Court,
told the Press.
The Indian
Government has introduced a bill in parliament, seeking to amend the Patents
Laws in India, which would do away with process patenting and make product
patenting mandatory in India. According to WTO rules, India is obliged to
protect and enforce drug patents from the start of this year. The introduction
of the new law would have the effect of increasing the prices of anti-retroviral
(ARV) drugs, used by HIV patients. The drugs are exported by India at fraction
of the price of drugs manufactured by other nations. Widespread protests were
reported in Kenya. Protests are also planned in Tanzania and Uganda. The
protestors want India to ignore what they termed "WTO dictatorship"
|
|
Telecom
Regulatory Authority of India (TRAI)
|
|
Notification No.
310-3(1)/2003-Eco Dated 11.03.2005: The Telecom Regulatory Authority of India (TRAI),
vide this notification has further amended the Telecommunication Tariff Order,
1999, and brought to the fore the Telecommunication Tariff (Thirty Fourth
Amendment) Order, 2005. The TRAI has strived to regulate the tariff for
International Private Leased Circuit (IPLC), giving an air of respite to
Software exporters, BPO units, banks and other financial services companies, and
Internet Service Providers (ISPs) and ILDOs, who are key users of IPLCs.
|
| PIB
|
|
Dated 18.03.2005:
Unveiling the big picture, it said that the total damage due to Tsunami covering
Andhra Pradesh, Kerala, Pondicherry and Tamil Nadu was estimated as Rs.
11,934.74 crore. The Tsunami has had no impact on India’s GDP or that of the
affected States/UT’s. The States/UT’s GDP were unaffected because economic
activity along the coastline contributes very little to their income. There was
no adverse impact of Tsunami on the general inflation in the country. A special
surcharge of excise on a range of products, the use of which should be
discouraged, was levied as National Calamity Contingency Duty (NCCD) vide
Finance Bill, 2001. Levy of NCCD was proposed to be extended without any time
limit in the Finance Bill, 2005.
Dated 15.03.2005:
The Labour Ministry has clarified that the services in the Uranium industry
would continue as public utility under the Industrial Disputes Act, 1947 for
another six months with effect from March 15, 2005. The employees in this
establishment, as a result, would among other things be required to give notice
to their employer six weeks in advance of proceeding on strike so that
conciliatory proceedings could be started.
|
RBI |
|
Circular No.
A.P.(DIR Series) Circular No. 37 Dated 15.03.2005: Banks authorised to deal in
foreign exchange were permitted to allow operations on the NRE account in terms
of Power of Attorney granted in favour of a resident by the non-resident account
holder, provided such operations are restricted to withdrawals for local
payments. Vide this circular, the Reserve Bank of India has clarified that such
banks may allow a resident power of attorney holder to remit, through normal
banking channels, funds out of the balances in FCNR (B) account to the
non-resident account holder, provided specific powers for the purpose have been
given to the power of attorney holder.
|
Insurance
Regulatory and Development Authority |
|
Order No IRDA/Ord/Act/080/MAR-05
Dated 07.03.2005: In view of the Law Commission report, the Insurance Regulatory
and Development Authority has constituted a committee to look into specific
areas involving legal issues, such as provisions relating to investments,
sufficiency of assets, insurance surveyors, Tariff Advisory Committee,
Shareholders' Funds & Policyholders' Funds. The Committee may also indicate
any other sections of the Insurance Act, 1938, which need to be amended in the
light of the developments that have taken place in the insurance sector, other
than those covered by the Law Commission's recommendations. The committee has
been requested to furnish its recommendations by 30th April, 2005.
|
| Ministry of Commerce & Industry |
| DGFT
Public Notice No.
60/2004-09 Dated 14.03.2005:The Director General of Foreign
Trades has made amendments in the prescribed procedure for import of certain
items under the Indo-Nepal Treaty of Trade signed on 2.3.2002. Earlier, the
annual quota of 100,000 MTs of Vegetable Fats (Vanaspati) for the financial year
2004-05 from Nepal was permitted for import from 6.12.2004 to 5.3.2005. But, now
this time frame has been extended by three months time.
Policy Circular No.
21/2004-09 Dated 11.03.2005: As a measure of procedural simplification, the
facility of filing application through EDI mode (E-Commerce) and the digital
signature mode has been extended to the exporters community. Circulating
clarification regarding the Date of Submission of Application, the Director
General of Foreign Trades said that the date on which E-Commerce
application was submitted and E-Commerce file number was generated would be
considered as the date of filing of application. However, the hard copy of the
application has to be submitted to the concerned RLA within 15 days of filing
E-commerce application.
|
| Ministry of
Home Affairs |
|
Notification No.
GSR159(E) Dated 07.03.2005: The Central Government, vide this notification has
made the Foreigners (Amendment) Order, 2005, further to amend the Foreigners
Order, 1948. This order shall come into effect on 1st of October, 2005. These
amendments focus on the liability of master of vessel or pilot of aircraft to
provide for certain information about the passengers on board, to the
immigration authority on the port of arrival or landing in India through
electronic measure.
|
| Ministry of
Power |
|
Notification No.
GSR158(E) Dated 02.03.2005: The Central Government has brought about the
National Load Despatch Centre Rules, 2004 vide this notification. There shall be
a centre at the national level to be known as National Load Despatch Centre for
optimum scheduling and despatch of electricity among the Regional Load Despatch
Centres. The National Load Despatch Centre shall be located at New Delhi with a
back up at its centre in Kolkata. The major functions of the National Load
Despatch Centre will constitute of supervising over the Regional Load Despatch
Centres, monitoring of operations and grid security of the National Grid,
coordination for trans-national exchange of power and levy and collection of
such fee and charges from the generating companies or licensees involved in the
power system.
|
| Ministry
of Shipping, Road Transport and
Highways |
|
Road Transport and Highways
Notification No. GSR165(E)
Dated 09.03.2005: The Central Government, vide this notification, has made the
Central Motor Vehicles (Amendment) Rules, 2005 further to amend the Central
Motor Vehicles Rules, 1989. These rules shall come into force on 9th
of March, 2005.
|
| Ministry
of Labour and Employment |
|
Notification No.
SO316(E) Dated 14.03.2005: The Central Government, vide this notification, has
fixed the rate of rupees four per thousand of manufactured beedis, as the rate
at which the duty of excise shall be levied and collected by way of cess for the
purpose of the Beedi Workers Welfare Fund Act, 1976 (62 of 1976) with effect
from the 1st day of April, 2005.
|
| Supreme
Court |
|
The Reserve Bank of
India intermittently appointed the respondents, as when the need arose, however they
were not engaged continuously. Criminal cases were registered against them for
submitting false certificates, consequently their services stood terminated.
Industrial tribunal, directed reinstatement in service with full backwages on
the ground that provisions of Section 25(F) of the Industrial Disputes Act, 1947
had not been complied with.
The Supreme Court,
allowed the appeal of the management, it was observed that Section 25(F) could
not be attracted unless the workmen had specifically pleaded and proved that
they had completed 240 days of service in the previous 12 months
The Petitioner, a
non governmental organisation, filed a writ petition before the Apex Court
raising various issues concerning relief and rehabilitation of the persons
displaced by the proposed Sardar Sarovar Project which is likely to affect a
large number of residents of the states of Gujarat, Madhya Pradesh and
Maharashtra, since the directions issued by the Court were not fully complied
with, applications were filed by the affected persons.
The Apex Court,
refused to make any difference between temporary and permanent affectees, it was
clarified that even in cases where a major son of a family did not possess land
separately, he would be entitled to grant of separate holding. The height of the
Dam would have direct nexus with the releif and
rehabilitation
|
| High Courts |
|
Kerala
The Complainant
filed a complaint under section 138 of the Negotiable Instruments Act, 1881 for
dishonour of cheque issued by the respondent. The Magistrate acquitted the
accused stating that since the statutory notice had been received by wife of the
accused and not by him, it was not properly served.
The said order was
challenged by the complainant on the ground that acceptance of the notice by the
wife of the accused was sufficient notice.
Kerala High Court
while allowing the appeal held that so long as the legal notice has been sent to
the correct last known address of the Accused, it would be immaterial who
received it.
Disciplinary
proceedings were initiated against the petitioners, employees of a Public Sector
Bank. Request of petitioners to Disciplinary Authority for keeping the
proceedings in abeyance before final determination of the criminal proceedings,
was declined. Aggrieved, the petitioners filed a writ petition seeking the same
relief.
The Kerala High
Court while dismissing the writ petition observed that there was no
justification of staying the disciplinary proceedings merely on the ground that
criminal proceedings were pending, it was observed that approach and objectives
of criminal proceedings is altogether distinct and different.
Andhra Pradesh
The petitioners,
cotton growers and traders, filed petition for issuance of a writ of mandamus to
direct the respondents to declare section 12-A(19) of the Andhra Pradesh
Cooperative Societies Act providing for transfer of assets of a co operative
institution to any non co operative institution, as unconstitutional. It was
contended that, the impugned provision was repugnant to section 47 of the Sale
of Goods Act, 1930.
The Andhra Pradesh
High Court, disposed of the petition with the observations that in case of
conflict between a central and a state law, assent of the President to the state
law cures inconsistency, however, assent would be required only for Acts
concerning matters falling within the concurrent list.
Maharashtra
The assessee filed
an appeal against the order of the Commissioner of Income Tax (Appeals) II. The
assessee has contended that invoking provisions of Section 147 (Income escaping
assessment) of the Income Tax Act is unjustified and contrary to the provisions
of law and order passed by the AO thereunder is without resuming the
jurisdiction in terms of the said section.
The Bombay Bench of
the Tribunal held that the assessee can change one system of accounting to
another system of accounting before the assessment is completed and where all
the assessee has done is to make final set of books on one method and before an
assessment, corrected that method, the AO did not come to picture at all on the
ground of objection to a change of method of accounting. The tribunal therefore
accepted the appeal of the assessee on merits.
|
|
|
|
Disclaimer |
|
(1) While
all reasonable care has been taken to ensure that the
information provided in the "round up" and on the website is
fair and accurate the company and its promoters and employees
shall not in any way be responsible for the consequences of any
action taken on the basis of reliance upon the contents of this
"round up". |
|
(2) This is not a Spam
mail. You have received this mail because you have either
requested for it or someone must have suggested your name under
our various referral programs. Since India has no anti-spamming
law, we refer to the US directive, which states that a mail
cannot be considered Spam if it contains the sender's contact
information, which this mail does. In case this mail doesn't
concern you, please unsubscribe from mailing list.
Feedback
| |
