Retail cascading in Germany a model for a revision of the PD?

The first 150 words of the full text of this article appear below. Key points

• The EU Prospectus Directive (the ‘PD’),as implemented in several EEA member states, including the UnitedKingdom, and the Regulation accompanying the PD (the ‘Regulation’)render difficult or even inhibit public offers of debt securitiesto retail investors.
• Market participants and their advisors,trade associations such as the International Capital MarketAssociation (‘ICMA’), as well as the United KingdomListing Authority (‘UKLA’) and the Committee ofEuropean Securities Regulators (‘CESR’) have beendealing with the issues. UKLA and ICMA have come forward byproposing a solution regarding the information requirementsof Annex V.5 of the Regulation. The proposal is to utilize Article23.4 of the Regulation allowing information required by theRegulation to be omitted if the information is not pertinentto the offer. CESR may take a wider approach. It has indicatedits willingness to assess whether further Level 2 work is appropriateand legislative action will . . . [Full Text of this Article]

 

Construction of contracts and the role of 'entire agreement' clauses

The first 150 words of the full text of this article appear below. Key points

• The construction of commercial contracts has seena shift from a strict to a liberal philosophy of constructionand this has had an impact on commercial agreements and actors.
• Thereis an ongoing debate concerning the widening background or matrixevidence to include prior negotiations, reflecting the desireof parties to insulate commercial agreements from collateralterm arguments or other recourse to wider materials.
• This hasin part led to the emergence of ‘entire agreement’and ‘non-reliance’ clauses.
• This article considersthe construction of such clauses and whether such clauses takeeffect through construction or estoppel reasoning. It also looksat the merits of estoppel by representation and ‘estoppelby contract’, the impact of Unfair Contract Terms Act1977 and Misrepresentation Act 1967, and the effect of waiverof clause.

  The law of contract is fundamental to all markets, and participantsin wholesale markets are wedded to the . . . [Full Text of this Article]

Future Developments

July 2006 UK FSA Consultation Paper ‘Implementing MiFID for firmsand markets’ to be published. Consultation period to closein October 2006. 6 July: Deadline for responses to Committee of European BankingSupervisors’ (CEBS) consultation CP02 on its standardsfor outsourcing of     

Moving beyond the law: foreign pressure and the politics of piracy in China

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

The Politics of Piracy – Intellectual Property in ContemporaryChina By Andrew C. Mertha, 2005, Cornell University Press Price:US$32.50, Hardback, ISBN: 0801443644. pp. 258   Criticism and proposed solutions surrounding China's ‘intellectualproperty problem’ in many cases have been     

Loan only credit default swaps the new European standard form

The first 150 words of the full text of this article appear below. Key points

• European Loan Only Credit Default Swap (‘LCDS’)documentation was published by the International Swaps &Derivatives Association, Inc. in the form of a Standard TermsSupplement and Form of Confirmation for use with Credit DerivativeTransactions on Leveraged Loans on 30 July 2007 (the ‘EuropeanLCDS’).
• This article reviews some of the changes thathave been made since the first circulation of the draft EuropeanLCDS documentation on 2 May 2006 (the ‘Draft LCDS’).
• Acomparison between the Draft LCDS, the current form of the EuropeanLCDS and the US LCDS (defined in the article below) providesan insight into how the development of the European LCDS hasrequired a compromise to be made between the needs and demandsof various market participants and the specifics of the Europeanleveraged loan market (as more fully described in our recentarticle¹) and indicates points of convergence between the . . . [Full Text of this Article]

 

The Vessel Hull Design Protection Act of 1998: is it still afloat?

Legal context. The Vessel Hull Design Protection Act (‘VHDPA’or ‘Act’) is a unique form of industrial designprotection under US law, part of the Digital Millennium CopyrightAct 1998. Congress provided this sui generis form of protectionin response to the Supreme Court's decision in Bonito Boatsv Thunder Craft Boats, Inc. This statute has been underutilizeddue to the difficulty in proving infringement, as unintendedconsequences were caused by the way ‘hull’ was originallydefined under the Act. A bill is pending in Congress that addresseshow a ‘hull’ is defined, eliminating any inclusionof ‘deck’ features, when passed, registrants shouldbe able to pursue infringers with greater success. Key points. The recreational boat manufacturing industry hasbeen plagued by low-cost boat makers who think nothing of takinga competitor's boat hull design, and using it as a ‘plug’to make a casting for their own unauthorized manufacturing use,a counterfeiting technique known in the trade as ‘splashing’a hull. In the eight years since enactment, the boating industryhas generally overlooked this form of intellectual propertyprotection due to the difficulty in proving infringement—thatis likely to change soon. Practical significance. The Act includes the right to excludeothers from making, having made, importing, offering for sale,or using in any trade, any boat hull embodying the protectedhull design. The Act provides compensatory recovery for damagesas well as injunctive relief. The newly revised Act has thepotential to provide a low-cost and effective form of intellectualproperty protection for recreational boat manufacturers whobuild hulls from moulded fibreglass or similar materials.     

Legal Certainty and the Role of the Financial Markets Law Committee

The first 150 words of the full text of this article appear below. Key points

• The role of the Financial Markets Law Committee (‘FMLC’)is to provide specialist assistance to those who must meet thechallenges of reforming, modernizing and applying financiallaw by identifying issues of legal uncertainty that may facethe wholesale financial markets and by working to resolve them,if possible, before they give rise to any material risk.
• Itis the author's view that the FMLC is uniquely positioned toserve rule of law values such as legal certainty and legal stability.
• Thisarticle suggests that, in the light of the challenges facingthe financial markets today, the rapid emergence of new markets,the accelerating rate of financial products ‘innovation’,the impact of recent international and European initiativesto harmonize financial markets law and the prospect of law reforminitiatives not yet even underway, the FMLC has an importantrole to play for the future.

  Much is said and . . . [Full Text of this Article]

Private equity: the UK regulatory response

The first 150 words of the full text of this article appear below. Key points

• Rapid growth in private equity in recent years hasgenerated a public debate over the possibility of regulation.The Financial Services Authority (FSA), British Venture CapitalAssociation (BVCA), Treasury and the Treasury Select Committeehave all been active on this front in recent months.
• This briefingnote provides an overview of the current state of play in theUK, taking account of the final guidelines published by SirDavid Walker and the changes to capital gains tax that havebeen announced by the Treasury.
• The BVCA guidelines will bringwithin its enhanced disclosure regime around 65 portfolio companiesand will operate on a ‘comply or explain’ basis.
• TheFSA has indicated that it will focus on the risks of marketabuse and conflicts of interest arising from private equitytransactions, but it does not envisage a discrete regulatoryregime for the sector.

 

Best execution and competition between trading venues MiFID's likely impact

The first 150 words of the full text of this article appear below. Key points

• Directive 2004/39/EC of the European Parliament andof the Council on markets in financial instruments (‘MiFID’)enhances investor protection in Europe by harmonizing the rulesof conduct applicable to investment services providers, includingbest execution requirements.
• Under MiFID, Member States mustallow internalization of orders and, therefore, eliminate the‘concentration’ provisions requiring transactionsin equity securities to be executed by intermediaries on a regulatedmarket. This article argues that MiFID's best execution provisionsmay represent a compromise between those Member States that,on one hand, having concentration rules in place, intended toprotect the incumbent exchanges from the consequences of theirrepeal and those, on the other, that intended to fully exploitthe opportunities of financial liberalization in Europe.
• Afterexamining MiFID's broad definition of best execution, the articleconsiders several provisions that limit the Directive's flexibility.These provisions tend to favour incumbent exchanges, which offerthe best . . . [Full Text of this Article]

 

Gaining confidence in the law of confidence

Legal context. The recent case of EPI v Symphony has left theUK law of confidentiality in an uncertain state: the extentto which recipients of confidential information may be permittedto ‘use’ mixtures of such information with publiclyavailable material remains unclear. The Court of Appeal in EPIfelt that it was hard to reconcile the principle that any claimin confidence must fail if the material in question is in thepublic domain with the ‘springboard’ doctrine; butis the distinction illusory? Key points. Issues raised in this case include considerationof what precisely is ‘use’ of confidential information,when mixed with public information, and whether a confider shoulddo more than rely on confidentiality obligations to protectthe fruits of his/her disclosures. This article asks how confidentialityobligations may be aligned with the control of statutory intellectualproperty rights. It considers whether the Court of Appeal inMarkem v Zipher has confused the issue and speculates as tohow far the general law of contract can assist the confider. Practical significance. Finally, this article discusses whichlegal tools will best assist the confider seeking to protectits intellectual property.     

Hedge fund regulation, market discipline and the Hedge Fund Working Group

The first 150 words of the full text of this article appear below. Key points

• Against a general background of suspicion, criticismand even hostility, the recently formed Hedge Fund Working Group(HFWG), comprising 14 leading fund managers based mainly inthe United Kingdom, published their Final Report in January2008.
• The Report is based on standards of best practice (the‘Standards’ of which there are 28) that are, inthe final analysis, to be administered by a newly establishedHedge Fund Standards Board (HFSB)—a self-regulatory bodycharged with the responsibility of keeping the Standards up-to-dateand ‘fit for purpose’.
• Borrowing from both theFinancial Services Authority's Principles for Business, whichrepresent bold statements of good business practice within theUK's financial services sector, and the Combined Code on CorporateGovernance's voluntary approach of ‘comply or explain’,the Standards are heralded by the HFWG as ‘an exercisein market discipline, based on disclosure’.
• The unprecedentednature of recent financial market . . . [Full Text of this Article]

 

Exclusion payments in patent settlements: a legal and economic perspective

Legal context. The application of antitrust law to assess settlementsof patent litigation raises difficult issues concerning theappropriate balance of patent law and competition policy. Recentprivate and public invocations of US antitrust law to challengesettlement agreements covering pharmaceutical patents have broughtthese issues to the forefront. The agreements share the commonfeature of an ‘exclusion payment’ from a brand-namedrug manufacturer (the patentee) to a generic drug manufacturer(the accused infringer) in exchange for a promise by the genericcompany to refrain from marketing its product for some time.US federal courts that have examined these agreements have variedin their approach and conclusions regarding the appropriateantitrust analysis to be applied to these settlements. Key points. This article argues that informed antitrust analysisof such agreements must take due note of the ‘probabilistic’nature of patent property rights. Practical significance. The article concludes that exclusionpayments fall outside the scope of a patent's exclusionary scopeand thus are subject to antitrust scrutiny. It demonstratesthat barring anticompetitive exclusion payments in settlementnegotiation prevents collusive bargains that harm consumer welfarewithout discouraging efficient settlements.     

Copyright ownership in university students' academic works

Legal context. The impact of human rights on intellectual property(‘IP’), particularly in the light of the Human RightsAct 1998 and growing criticism of IP by civil society. Key points. There can be a greater legal, as well as political,role for human rights in the development of IP. The place ofhuman rights in IP litigation is established: see decisionsin Levi v Tesco, Ashdown v Telegraph and ITP v Coflexip. However,the impact of human rights has been limited to extreme peripheralcases, without challenging the central priority accorded tothe interests of IP owners. After considering practical applicationsin ‘non commercial’, ‘hybrid’, and ‘commercial’fields, this article argues for a more pervasive and centralrole for human rights, by greater reference to the Human RightsAct 1998, the EU Charter, international human rights instruments,TRIPS and decisions of other jurisdictions. This should enablea more balanced outcome to be reached in many, but not all,cases. Practical significance. IP owners, those challenging IP rights,and those advising them should all consider greater use of humanrights in IP litigation—not just in exceptional cases.Those resisting infringement may increase their prospect ofsuccess; those arguing for infringement will be better placedto counter arguments which may be raised. However, revisionof national, regional and international IP legislation wouldbe required to address all perceived social difficulties withIP.