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[No.57]
July 30, 2003 |
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International Legal News
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Cases
Source:
Westlawinternational.com
An intermediate appellate court held, as a matter of first impression, that a
news reporter was neither an all-purpose public figure, a limited-purpose public
figure, nor an involuntary public figure, and was thus not required to prove
malice, for the purposes of a defamation action based on her professional
activities. The reporter, who alleged that she had been defamed by a letter to
her employer from the president of an entertainment corporation about which she
had written several articles, was not well-known to the general public and had
never sought or received notoriety or public attention by reason of her
journalistic achievements, and had no independent access to the media by which
to counter the accusations made against her. She did not initiate the articles
triggering the allegedly defamatory letter, and the articles were not written in
an investigatory tone or in a manner intended to create public controversy or
influence the public's perception of the corporation or its counsel. Finally,
the reporter acquired no significant public recognition or media access as the
result of articles which provoked the allegedly defamatory comments, and any
public recognition she received resulted from a newspaper article detailing the
corporation's reaction to her articles.
Finke v. Walt Disney Co.
In the context of the agreement and the relationship of the parties, a sale of
the assets, including "any intangibles," of a snowmobile racing
circuit business to the seller's newly formed competitor did not include any
antitrust or other commercial tort claims that the seller had against snowmobile
manufacturers whose products gained exposure on the circuit. Therefore, the
seller still had standing to bring such claims after the sale. The seller
claimed that the buyer both participated in and benefited from the
manufacturers' anticompetitive actions, in that it was a participant in a
conspiracy to decrease the assets' market value and reduce the purchase price.
In this case, the buyer would be incapable of pursuing a claim against its own
co-conspirators or proving any injury from a reduction in the market value of
the business.
Motorsports Racing Plus, Inc. v. Arctic Cat Sales, Inc.
A disclosure requirement in an arbitration agreement, directing that the
arbitrator disclose any past or present relationship with the parties or their
counsel, was not an administrative act independent of the arbitration
proceeding, but was a function of his position as an arbitrator. Accordingly,
the arbitrator was immune from suit brought by a party to the arbitration,
alleging that the arbitrator failed to disclose a prior relationship with the
attorney for the adverse party. Further, even if arbitral immunity, which was
not previously recognized in Texas, did not protect the arbitrator, the Texas
Arbitration Act afforded the plaintiff with an exclusive remedy to contest the
arbitration award on the theory that the arbitrator's impartiality was
compromised. Therefore, the award could not be collaterally attacked by bringing
a lawsuit against the individual arbitrator.
Blue Cross Blue Shield of Texas v. Juneau
The Maryland Court of Appeals has invalidated several statutes on voter
registration and the nomination of minor political parties' candidates. The case
arose out of a Board of Elections' decision to subtract signatures from a
petition submitted by a Green Party candidate for Congress. The Board concluded
that the signatures were by inactive voters. The Court of Appeals invalided a
dual registration system of active and inactive voters, a prohibition against
counting the signatures of inactive voters for petition verification, and the
requirement permitting minor political parties to nominate candidates only by a
second petition in addition to petition for formation of the party. These
provisions violate the state constitution.
Maryland Green Party v. Maryland Bd. of Elections
News
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A canned meat company Hormel Foods has filed two legal challenges with the
U.S. Patent and Trademark Office to try to stop SpamArrest from using its
decades-old name Spam, for which it holds the trademark. Earlier this year
SpamArrest, a Seattle software company specializes in blocking junk e-mail or
"spam" has filed paper for registration of its corporate name.
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President Bush on Wednesday has opposed to extending marriage rights to gays.
In a news conference Bush told reporters that "I believe marriage is
between a man and a woman, and I think we ought to codify that one way or
another." The stand taken by President Bush comes at time when courts in US
have started recognizing gay marriage rights. U.S. Supreme Court in its recent
decision struck down state laws banning sodomy. Canada courts also have recently
recognized gay marriages. In addition, the Massachusetts high court is expected
to issue a ruling soon on whether the state can allow gay marriages. President's
comments were welcomed by conservative groups, but drew criticism from gay
rights advocates.
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Ford Motor Co. has filed a suit against Philadelphia-based Pep Boys to settle
a dispute over use of the name 'Futura' on an upcoming vehicle. Pep Boys have
accused the automaker of infringing on the auto parts chain's trademarked brand
name for tires. Ford wants the matter to be settled by a judge and approve its
use of name 'Futura'. Ford had introduced the Futura sedan in April at the New
York International Auto Show. The car is scheduled for initial production in
2005 and eventually will replace the aging but once extremely popular Taurus,
which Ford plans to phase out in the next few years.
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Napster, a music downloading site will be relaunched around Christmas, as has
been announced by its new owner Roxio. Napster was closed down in 2001 after a
prolonged battle with the record industry over copyright infringement
allegations. It will now emerge as a legal, paid music service Napster 2.0.
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Maryland has become the first state in U.S. to adopt a specialized court in an
effort to respond to the increased complexity of business and technology cases.
Other states, including New York and California, have also created specialized
courts or tracks to address complex business litigation, but none except
Maryland has embraced "high tech" as a component of the specialized
case management system.
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Malaysian government has promised to change the country's laws to discourage
men from divorcing their wives by means of electronic messages and increasing
fines and jail sentences for men who pronounce the talak - or declaration of
divorce - by electronic means, such as e-mail, fax or text message. This promise
came after an Islamic court declared that a man had ended his marriage after he
had send a message to his wife on mobile telephone.
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SEBI
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Secondary Market Division
SMD Circular No. MIRSD/MSS/Cir- 30/ 13289/03 Dated 09.07.2003 : Rule 4 (c) of the SEBI (Stock Brokers and Sub-Brokers) Rules, 1992 prescribes
that in case of any change in the status and constitution, the stock-broker
shall obtain prior approval of the SEBI to continue to buy, sell or deal in
securities in any stock exchange. For a particular type of change, some
exchanges seek approval while some others do not. As a clarifications SEBI has
specified the circumstances which would mean change in status and constitution
under rule 4 (c) of the SEBI (Stock Brokers and Sub-Brokers) Rules, 1992 and
hence would require prior approval of the SEBI.
Regulation
Notification No. SO816(E) Dated 17.07.2003 : SEBI has issued Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 to be effective from 17.07.2003
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Department of Company Affairs
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Notification No. S.O.815(E) Dated 17.07.2003 : In the said notification, for serial No.2 and the entries thereto, the following has been substituted,
“2. Joint Secretary and Financial Adviser,
Department of Company Affairs - Member” .
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CBEC Excise non Tariff
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Notification No. 59/2003 NT Dated 23.07.2003 : In the Central Excise (Advance Rulings) Rules, 2002, FORM - AAR (CE) has been
substituted.
Notification No. 58/2003 NT Dated 22.07.2003 : Central Government has appointed the 15th day of August, 2003, as the date on which the insertion and omission as respectively specified in the said clauses shall take effect.
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CBEC Customs Tariff
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Notification No.117/2003 Dated 24.07.2003 : Anti-Dumping Duty has been imposed on D (-) Para Hydroxy Phenyl Glycine Methyl Potassium Dane Salt originating in, or exported from, the People¹s Republic of China and Singapore
Notification No. 116/2003 Dated 22.07.2003 : Central Government has rescinded the Notification No. 70/2001-Customs, dated the 26th June, 2001, except as respects things done or omitted to be done before such rescission.
Notification No. 115/2003 Dated 22.07.2003 : Central Government, has rescinded the following Notifications.
(i) No. 137/2000-Customs, dated the 19th October, 2000, published in the Gazette of India vide G.S.R. 804 (E), dated the 19th October, 2000;
(ii) No. 82/2002-Customs, dated the 13th August, 2002, published in the Gazette of India vide G.S.R. 563 (E), dated the 13th August, 2002.
Notification No. 114/2003 Dated 22.07.2003 : Central Government, having regard to the maximum sales tax, local tax or any other charges for the time being leviable on the like goods on their sale or purchase in India, has specified the rate of special additional duty as nil in respect of goods produced and manufactured by a special economic zone unit and brought to any other place in India for the purpose of sale.
Notification No. 113/2003 Dated 22.07.2003 : Central Government, has exempted castor oil cake falling under item 23 06 9017 of the First Schedule to the Customs Tariff Act, when manufactured from indigenous castor oil seeds on indigenous plant and machinery by a unit in special economic zone, which was in existence prior to the 1st day of November, 2000 and brought to domestic tariff area in accordance with the provisions of Export and Import Policy, from the whole of the duty of customs leviable thereon under the said First Schedule and the additional duty, if any, leviable thereon under section 3 of the Customs Tariff Act.
Circular No. 64/2003 Dated 21.07.2003 : It is observed that RBI has not revised its earlier instructions as regards the limit of payment of agency commission. Therefore, it is clarified that the field formations may continue to permit export benefits on f.o.b. value without deducting agency commission if such commission is upto the limit of 12.5% of f.o.b. value. Agency commission exceeding this limit should be deducted from the f.o.b. value for granting export benefits under Drawback/DEPB/Advance Licences /DFRC Schemes.
Circular No. 61/2003 Dated 18.07.2003 : It has been decided that, the provision contained at Para 3 to the Board’s Board’s Circular No.18/2002-Cus. dated 13.03.2002 may be substituted as under:-
“ (3) “the facility for movement of export cargo from ICDs / CFSs to Nepal and Bangladesh mentioned above shall be available if cargo is moved through LCSs at Petrapole & Gede in Indo-Bangladesh border and Raxaul & Nautanwa (Sonauli) at Indo Nepal border”.
Circular No. 59/2003 Dated 16.07.2003 : It is clarified that Ethylene Oxide Sterilizers are eligible for examination under the said
notification as Ethylene Sterilizer and ethylene oxide Sterilizer in
technical/trade parlance refer to the same type of sterilizer which uses
Ethylene Oxide as a sterilizing agent.
Circular No. 58/2003 Dated 16.07.2003 : Considering that exports of garments to
Russia against non-quota entitlement were made by the 63 exporters specified in
Public Notice dated 6.2.2003 by claiming/availing export incentives under
Drawback and other export promotion schemes, it has been decided that export incentives in respect of 63 Indian exporters as specified in Public Notice dated 6.2.2003, for exports to Russia made against non-quota entitlement should not be released until completion of final investigation by Ministry of Textiles and AEPC in the matter. In this regard Ministry of Textiles has also being requested to forward the outcome of investigations firm-wise against each of the 63 exporters for taking a final decision in the matter.
Notification No. 109/2003 Dated 14.07.2003 and No. 107/2003 Dated 11.07.2003 : Anti Dumping Duty has been Imposed On Import of Ammonium Nitrate and Titanium dioxide Anatase Grade
Notification No. 108/2003 Dated 14.07.2003 : In the said notification, for the words “Ministry or Department”, wherever they occur, the words “Ministry or Department or Council of Scientific and Industrial Research under the New Millennium Indian Technology Leadership Initiative Scheme”
have been substituted.
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CBEC Customs Non Tariff
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Notification No. 54/2003-N.T. Dated 23.07.2003 : In the Customs (Advance Rulings) Rules, 2002, FORM-AAR(CUS) annexed thereto, has been substituted.
Notification No. 53/2003-N.T. Dated 22.07.2003 : Board has made the the Special Economic Zones (Customs Procedures) Regulations, 2003 to be effective from 15th day of August, 2003.
Notification No. 52/2003-N.T. Dated 22.07.2003 : Board has made the Special Economic Zones Rules, 2003 to be effective from 15th day of August, 2003.
Notification No. 44/2003- NT to No. 51/2003- NT Dated 22.07.2003 : Madras Special Economic Zone, Visakhapatnam Special Economic Zone, Madras Special Economic Zone, SEEPZ Special Economic Zone, Mumbai, NOIDA Special Economic Zone, Kandla Special Economic Zone and Surat Special Economic Zone have been Specified As A "Special Economic Zone"
Notification No. 43/2003- NT Dated 22.07.2003 : Central
Government has appointed the 15th day of August, 2003, as the date on which
Chapter XA as proposed by the section 126 of the Finance Act, 2002, shall be
inserted in the Customs Act, 1962 (52 of 1962)
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RBI
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Circular No. A.P.(DIR Series) Circular No. 6 Dated 23.07.2003 : Attention has been invited to authorised dealers to paragraph 2 of Schedule II to Notification No. FEMA 25/RB-2000 dated May 3, 2000, which lists out the exposure for which forward cover can be offered by authorised dealers to Non-Resident Indians/Overseas Corporate
Bodies. Banks have been advised that no forward cover should be offered to Non-Resident Indians/Overseas Corporate Bodies holding Resurgent India Bonds.
Circular No. AP (DIR) Circular No. 5 Dated 21.07.03 : Attention of authorised dealers has been drawn to the Government policy on payment of royalty under Foreign Technology Collaboration. Presently, only wholly owned subsidiaries are allowed to pay royalty to offshore parent companies abroad without any restriction on the duration of payment under the automatic
route. All cases of payment of royalty under the automatic route will continue to require prior registration with Reserve Bank in terms of Rule 5 read with item 14 of Schedule III of the Foreign Exchange Management (Current Account Transactions) Rules, 2000.
Circular No. A.P.(DIR Series) Circular No.4 Dated 19.07.2003 : Attention of authorised dealers has been invited to the provisions of A.P.(DIR Series) circular No.25 dated September 27, 2002 regarding simplification of procedure for financing imports into India by way of Suppliers' or Buyers' Credit. It has been clarified that short term credit either by way of suppliers' credit or buyers' credit, as envisaged in the aforementioned circular is not available for merchanting trade or intermediary trade transactions
Notification No. DBS.FID No.C-4/ 01.02.00 / 2003- 04 Dated 29.07.2003 : It has been decided to obtain the data regarding the liquidity and interest rate gaps of the FIs as a part of the extant off-site surveillance
system. Accordingly, a hard copy, along with a soft copy (as a MS-Excel file) in a floppy diskette, of the Liquidity Statement and the Interest Rate Sensitivity Statement, prepared in terms of the RBI guidelines, is
required to be submitted at quarterly intervals, with effect from the quarter ended June 30, 2003.
Notification No. DBS.FID No.C-3/ 01.02.00 / 2003- 04 Dated 17.07.2003 : Based on the recommendations of In-House Group to identify and recommend the measures that could be instituted by the banks to prevent the slippage of the accounts in the ‘sub-standard category to the ‘doubtful’ category the RBI has issued the guidelines to the banks vide Circular No. DBS.CO.OSMOS. BC.4/33.04.06/2002-2003 dated September 12,
2002. RBI has now recommended that the Guidelines should be placed before the Board of Directors of concerned institutions at their ensuing meeting and appropriate action initiated for implementing the recommended measures, to the extent considered necessary, in keeping with the spirit of the guidelines.
Notification No. DBOD No. BP.BC. 4 /21.04.018/2003-04 Dated 19.07.2003 : Banks have been advised to adopt the
prescribed procedure for netting off the entries representing clearing differences receivable against entries representing clearing differences
payable. Banks have also been advised to route their inter-branch clearing instruments through an in-house clearing mechanism and not route it along with inter-bank clearing instruments.
Notification No. DNBS(PD)C.C.No. 27 /02.05/2003-04 Dated 28.07.2003 : NBFCs may accept nominations made by the depositors in the form similar to that specified under Banking Companies (Nomination) Rules, 1985 . Forms DA1, DA2, and DA3 are specified in the rules for the purposes of nomination, cancellation of nomination and variation of nomination.
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DGFT
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Public Notice No. 18(RE-03)/2002-2007 Dated 24.07.2003 : The Director General of Foreign Trade has made the amendments in the Handbook of Procedures (Vol.1)
Trade Notice No. 03 / 2002-2007 Dated 16.07.2003 : It has been brought to the notice of the trade that they should file the trade returns only by accessing the website and should not send manual applications to
either personally or by post.
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Department of Commerce
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Notification No. 14/3/2003-DGAD Dated 16.07.2003 : Anti-Dumping Investigations have been initiated Concerning Imports of Chloroquine Phosphate from China PR.
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Department of Industrial
Policy
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Notification No. SO818(E) to No. SO820(E) Dated 17.07.2003 : ONGC and HLS Asia Limited have been Exempted from Rule 31(2) of Explosives Rules, 1983 for import of specified explosives.
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Department of Health |
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Notification No. GSR555(E) Dated 18.07.2003 : Draft of certain rules further to amend the Prevention of Food Adulteration Rules, 1955, has been published for the information of all persons likely to be affected thereby, and notice is
has been given that the said draft rules will be taken into consideration on or after the expiry of a period of sixty days from the date on which copies of the Gazette of India in which this notification is published are made available to the public.
Notification No. GSR554(E) Dated 18.07.2003 : In the Prevention of Food Adulteration Rules, 1955, in Appendix B, in item A.33 relating to Packaged drinking water (other than Mineral Water), in the table, and entries relating to serial number 40
have been substituted
Notification No. GSR548(E) Dated 16.07.2003 : In the Drugs and Cosmetics Rules, 1945, in Schedule M-III, under the heading "7. Testing facilities", in the proviso, after the words "Sterility, Pyrogens, Toxicity", the words "wherever applicable", has been inserted.
Notification No. GSR549(E) Dated 16.07.2003 : In the Drags and Cosmetics Rules, 1945, in Schedule K, after Serial Number 32 ,new entry 33 relating to Nicotine gum has been inserted.
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Department of Justice |
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Notification No. SO806(E) Dated 16.07.2003 : The Central Government had appointed 16.07.2003 as the date on which Delhi High Court (Amendment) Act, 2003(35 of 2003) came into force.
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Ministry of
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Order No. SO793 (E) Dated 11.07.2003 : The National Pharmaceutical Pricing Authority has notified the norms for conversion cost packing charges and process loss vide notification No. S.O. 578(E) dated 13th July, 1999 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii). In compliance with the requirement for Paragraph 7 of the Drugs (prices Control) Order, 1995 the validity of the notification No. 578 (E) dated 13th July, 1999 has been further extended with immediate effect.
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Press Information Bureau |
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Dated 22.07.2003 : The Department of Justice has adopted the strategy of earmarking separate courts to deal with cases involving senior citizens, who are above 60 years of age, and with those concerning abuse of women. The new measure is to ensure that in the order of disposal, due priority is given to
more vulnerable segments of the population |
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Supreme Court |
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This petition is filed
against discriminatory treatment meted out to the members of the
Christian community under the provisions of Section 118 of the Indian
Succession Act, 1925 by which they were practically prevented from
bequeathing property for religious and charitable purposes. The said
provision, postulates that a person having a nephew or niece or any
nearer relative cannot bequeath his property for religious or charitable
use unless: (i) the will is executed not less than twelve months before
the death of testator; (ii) it is deposited within six months from its
execution in some place provided by law for the safe custody thereof;
and (iii) it remains in such deposit till the death of the testator.The
section plainly means that to the extent to which the bequest is for
religious or charitable uses, the application of this section is
attracted despite the fact that the bequest may be for only a part of
the property or some interest in the property. According to the
petitioners the said provision is violative of Articles 14 and 15 of the
Constitution of India.
The Hon'ble Supreme
court held that the impugned provision was enacted to prevent persons
from making ill-considered death bequest under religious influence. The
object behind the said legislation was, therefore, to protect a section
of illiterate or semi-literate persons who used to blindly follow the
preachers of the religion. Such a purpose has lost all significance with
the passage of time and, therefore, has to be declared ultra vires
Article 14 of the Constitution of India.whether in an enactment
religious bequests by a Christian is discriminatory and violative of
Articles 14 and 15 of the Constitution must be determined as per the
rule of procedure laid down by Section 118 of the Act, which comes with
the purview of Articles 14 and 15 of the Constitution, and it is,
therefore, necessary that all testators who are similarly situated
should be subjected to the same rule of procedure. There cannot be any
unusual burden on Christian testators alone when all other testators
making similar bequests for similar charities and similar religious
purposes are not subjected to such procedure. Therefore, Section 118 of
the Act is anomalous, discriminatory and violative of Articles 14, 15,
25 and 26 of the Constitution and should be struck down.---Writ Petition
allowed
On 14th January, 2002,
the Department of Medical Education, Government of Madhya Pradesh
promulgated the Madhya Pradesh Medical and Dental Post Graduation
Entrance Examination Rules, 2002 (hereinafter referred to as 'P.G.
Entrance Examination Rules, 2002', for brief) published in Madhya
Pradesh Government Gazette Extraordinary dated 14.1.2002. The P.G.
Entrance Examination Rules, 2002 make provision for the entrance test
being conducted by the State Government. 20% seats are allocated for
in-service candidates i.e. for medical graduates who are in the
employment of the State Government. They are exempted from taking PG
Entrance or Pre-PG examination. Such candidates are obviously governed
by the service rules of the State.
The PG Admission
(In-service) Rules framed by the Public Health and Family Welfare
Department, vide Rule 2 under Selection Criteria, provide for a
different mechanism including 40% marks to be awarded on the basis of a
written examination conducted by Madhya Pradesh Professional Examination
Board which is to be held separately for in-service candidates
The qualifying
examination for entrance to post-graduate is called Pre-P.G. Entrance
Examination and is conducted by M.P. Professional Entrance Test Board
('PET Board', for short), an autonomous body two separate entrance tests
were held; one for open category candidates, and the other for
in-service candidates. However, much before the holding of the tests,
writ petitions were filed in the High Court of Madhya Pradesh laying
challenge to the constitutional validity of P.G. Entrance Examination
Rules, 2002 and P.G. Admission (in-service) Rules, 2002. The High Court,
by interim orders passed in the writ petitions, permitted the entrance
examinations being held as scheduled but directed the declaration of
results to remain stayed. On 20th February, 2003, the High Court
pronounced its decision disposing of a batch of writ petitions. The High
Court struck down as ultra vires the P.G. Admission (in-service)
Rules, 2002. In substance, the High Court upheld the validity of
reservation of 20% seats out of the total in favour of in-service
candidates.On 18th February,
2003, the State Government promulgated the Madhya Pradesh Medical and
Dental Post Graduation Entrance Examination Rules 2003.The process for
conducting entrance examinations so as to select the candidates for post
graduation courses commencing in the year 2003-2004 was initiated. A set
of fresh writ petitions came to be filed in the High Court of Madhya
Pradesh by some of the in-service candidates laying challenge to the
weightage given to the period of service spent in rural/tribunal areas
by the candidates, relaxed eligibility test for women candidates serving
in rural areas.
In the State of Madhya
Pradesh allocation of 20% seats in post graduation in the Universities
of Madhya Pradesh for in-service candidates is not a reservation; it is
a separate and exclusive channel of entry or source of admission, the
validity whereof cannot be determined on the constitutional principles
applicable to communal reservations. Such two channels of entry or two
sources of admission is a valid provision.There can be only one common
entrance test for determining eligibility for post graduation. The
requirement of minimum qualifying marks cannot be lowered or relaxed
contrary to Medical Council of India Regulations framed in this behalf..
It is permissible to assign a reasonable weightage for service rendered
in rural/tribal areas by in-service candidates for the purpose of
determining inter se merit within the class of in-service candidates who
have qualified in the Pre-PG test.Women candidates constitute a class by
themselves and the provision of relaxed or reduced eligibility criteria
by reference to continuous service rendered in rural areas for the
purpose of sponsorship by the State Government in specified disciplines
which have utility for serving women folk in villages does not suffer
from the vice of invidious discrimination. |
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