Friday, May 30, 2008
Smelly Returns
Almost a year ago I wrote a blog post about a DWI lawyer I referred to as Smelly. This was not a reference to any odor, but rather a play on his name. I've never even met the guy, and have only talked - briefly - with one lawyer who has worked with him.I mentioned in that post a perception among DWI lawyers about him. Well, now I found some gold. See the website and video below:http://
Thursday, May 22, 2008
China's New Law on Resolving Employment Disputes May Enhance Intellectual Property Protections
Late last December, China's National People's Congress adopted and China's President promulgated the Law on Mediation and Arbitration of Labor Disputes of the People’s Republic of China. See Order No. 80, Dec. 29, 2007.
That law went into effect on May 1, 2008 and is touted as a significant improvement over the prior law, improving fairness in the treatment of employees and employers and improving efficiencies. Among the advantages of the new law include that it expands the scope of cases that courts will accept and the statutory limitation period. It also increases opportunities for mediation and arbitration and significantly improves both of these alternative dispute resolution mechanisms.
Of particular interest regarding disputes involving intellectual property that may arise under employment contracts containing non-disclosure or related provisions, this new law applies pursuant to Article 2(2).
Under Article 23, a third-party with a material interest in the outcome of a dispute may apply to receive notice or otherwise participate in arbitration proceedings. This may provide a significant opportunity for U.S. and other companies with Chinese design or manufacturing partners to better protect their intellectual property interests.
The protection of these interests are generally required by U.S.-to-China design or OEM agreements, for example, where the Chinese company is required to put employment contracts in place by which its employees are bound by the same or substantially similar non-disclosure obligations to those that bind the employing entity. Such provisions extending to employees are included in these outsourcing and supplies contracts as a matter of best practices.
Prior to the new law, however, these provisions were largely regarded as unenforceable in China where piracy and industrial espionage are notorious and where the exclusivity of intellectual property rights is still a developing concept. From intellectual property and international transactions perspectives, China's new labor dispute law may be a welcome change indeed.
For the full text of the new law in English or for more information about Technology Law Group's international practice, please contact us at +1.208.939.4472 or info@technologylawgroup.com or visit our Web site at http://www.technologylawgroup.com/.
That law went into effect on May 1, 2008 and is touted as a significant improvement over the prior law, improving fairness in the treatment of employees and employers and improving efficiencies. Among the advantages of the new law include that it expands the scope of cases that courts will accept and the statutory limitation period. It also increases opportunities for mediation and arbitration and significantly improves both of these alternative dispute resolution mechanisms.
Of particular interest regarding disputes involving intellectual property that may arise under employment contracts containing non-disclosure or related provisions, this new law applies pursuant to Article 2(2).
Under Article 23, a third-party with a material interest in the outcome of a dispute may apply to receive notice or otherwise participate in arbitration proceedings. This may provide a significant opportunity for U.S. and other companies with Chinese design or manufacturing partners to better protect their intellectual property interests.
The protection of these interests are generally required by U.S.-to-China design or OEM agreements, for example, where the Chinese company is required to put employment contracts in place by which its employees are bound by the same or substantially similar non-disclosure obligations to those that bind the employing entity. Such provisions extending to employees are included in these outsourcing and supplies contracts as a matter of best practices.
Prior to the new law, however, these provisions were largely regarded as unenforceable in China where piracy and industrial espionage are notorious and where the exclusivity of intellectual property rights is still a developing concept. From intellectual property and international transactions perspectives, China's new labor dispute law may be a welcome change indeed.
For the full text of the new law in English or for more information about Technology Law Group's international practice, please contact us at +1.208.939.4472 or info@technologylawgroup.com or visit our Web site at http://www.technologylawgroup.com/.
Update - Hague Convention on Choice of Court Agreements
The important Hague Convention on Choice of Court Agreements is now open for signature, ratification, and accession. For a discussion of the Convention and the process by which it advances toward its entry into force, click here.
Recently, the ABA's International Litigation Committee was in communication with the U.S. State Department's David Stewart, Assistant Legal Adviser for Private International Law in the Office of Legal Affairs, about the Convention and progress toward its ratification.
Mr. Stewart advised that the current focus is on issues regarding the Convention's implementation. The State Department, after its evaluation, forwards a memorandum to the President requesting authority to sign the desired convention. Before State forwards its signature memorandum as to this Convention, it requires a clear understanding as to how the Convention might be implemented. Mr. Stewart and his staff are working on the drafting of a tentative federal statute, but he states that considerable concern exists as to whether solely federalizing the issues addressed by the Convention is the optimum approach.
The National Conference on Commissioners on Uniform State Laws (NCCUSL) is actively evaluating how a uniform state law might be structured. A NCCUSL Drafting Committee, chaired by Idaho Uniform Law Commissioner, Rex Blackburn, is at work in that regard.
State will consider how NCCUSL's draft uniform state law and the draft federal statute might be integrated. That said, State expects to issue its signing memorandum shortly.
For more information about our international legal services, please contact us at +1.208.939.4472 or info@technologylawgroup.com or visit our Web site at http://www.technologylawgroup.com.
Recently, the ABA's International Litigation Committee was in communication with the U.S. State Department's David Stewart, Assistant Legal Adviser for Private International Law in the Office of Legal Affairs, about the Convention and progress toward its ratification.
Mr. Stewart advised that the current focus is on issues regarding the Convention's implementation. The State Department, after its evaluation, forwards a memorandum to the President requesting authority to sign the desired convention. Before State forwards its signature memorandum as to this Convention, it requires a clear understanding as to how the Convention might be implemented. Mr. Stewart and his staff are working on the drafting of a tentative federal statute, but he states that considerable concern exists as to whether solely federalizing the issues addressed by the Convention is the optimum approach.
The National Conference on Commissioners on Uniform State Laws (NCCUSL) is actively evaluating how a uniform state law might be structured. A NCCUSL Drafting Committee, chaired by Idaho Uniform Law Commissioner, Rex Blackburn, is at work in that regard.
State will consider how NCCUSL's draft uniform state law and the draft federal statute might be integrated. That said, State expects to issue its signing memorandum shortly.
For more information about our international legal services, please contact us at +1.208.939.4472 or info@technologylawgroup.com or visit our Web site at http://www.technologylawgroup.com.
Hague Convention on Choice of Court Agreements - Backgrounder
The Hague Convention on Private International Law concluded the Hague Convention on Choice of Court Agreements in June 2005 after thirteen (13) years of negotiation. The goal of the Convention is to improve the ability to efficiently resolve disputes and enforce judgments in cross-border transactions. For a comprehensive text on the Convention and its commentary, please click here.
In terms familiar to those drafting contracts in common law countries like the United States, the Convention establishes conditions under which the parties may contractually agree to consent to exclusive personal jurisdiction in a particular state or federal court.
Late last fall, Mexico became the first state to accede to the Hague Convention on Choice of Court Agreements. The American Bar Association has urged that the United States adopt, ratify, and implement the Convention. See Background Note, infra.
The Convention sets forth the rules by which parties in different countries prospectively agree to resolve civil or commercial disputes in an agreed forum. Further, judgments in those agreed fora must be enforced by the courts in other countries adopting the Convention, provided exceptions do not apply.
The Convention sets forth a number of public policy exceptions to its applicability. Of importance to our intellectual property clients and constituencies, the Convention is not applicable to certain intellectual property matters. Specifically, the Convention does not govern in matters regarding the invalidity of intellectual property rights (excluding copyright and related rights) and regarding infringement of intellectual property rights that occur or could be brought under contract law (again, excluding copyright and related rights). See Articles 2 (2)(n)-(o) & 10(3).
For more information about the assistance we can provide in international transactional matters, please contact us at +1.208.939.4472 or info@technologylawgroup.com.
BACKGROUND NOTE: As the development of the positive international law (treaty law) goes, conventions, once concluded, are then opened for accession by states (countries), both members of the Hague Convention and non-members. Once agreed by the specified number of states, the Convention then enters into force. This process of adoption and implementation, that is, the incorporation of the treaty's principles into the domestic law, takes several years. Note, however, that treaties may become evidence of binding customary international law even without their entry into force. Generally and in addition, parties may opt in to the applicability of a treaty even if that treaty has not yet entered into force.
In terms familiar to those drafting contracts in common law countries like the United States, the Convention establishes conditions under which the parties may contractually agree to consent to exclusive personal jurisdiction in a particular state or federal court.
Late last fall, Mexico became the first state to accede to the Hague Convention on Choice of Court Agreements. The American Bar Association has urged that the United States adopt, ratify, and implement the Convention. See Background Note, infra.
The Convention sets forth the rules by which parties in different countries prospectively agree to resolve civil or commercial disputes in an agreed forum. Further, judgments in those agreed fora must be enforced by the courts in other countries adopting the Convention, provided exceptions do not apply.
The Convention sets forth a number of public policy exceptions to its applicability. Of importance to our intellectual property clients and constituencies, the Convention is not applicable to certain intellectual property matters. Specifically, the Convention does not govern in matters regarding the invalidity of intellectual property rights (excluding copyright and related rights) and regarding infringement of intellectual property rights that occur or could be brought under contract law (again, excluding copyright and related rights). See Articles 2 (2)(n)-(o) & 10(3).
For more information about the assistance we can provide in international transactional matters, please contact us at +1.208.939.4472 or info@technologylawgroup.com.
BACKGROUND NOTE: As the development of the positive international law (treaty law) goes, conventions, once concluded, are then opened for accession by states (countries), both members of the Hague Convention and non-members. Once agreed by the specified number of states, the Convention then enters into force. This process of adoption and implementation, that is, the incorporation of the treaty's principles into the domestic law, takes several years. Note, however, that treaties may become evidence of binding customary international law even without their entry into force. Generally and in addition, parties may opt in to the applicability of a treaty even if that treaty has not yet entered into force.
Wednesday, May 21, 2008
Supreme Court Rules Emails Offering/Seeking Online Child Porn Not Protected Speech
The U.S. Supreme Court released its 7-2 ruling on Monday that people who send online messages seeking or offering sexual images of children are not engaging in speech protected under the First Amendment and so can be sent to prison. The Court's ruling applies even if there is no such underlying pornography.
Law enforcement officials praise the decision as enabling them to more efficiently combat criminal acts surrounding and depicting the sexual abuse of children. The decision is one of an ongoing judicial rulings on legislative attempts to balance free speech rights against the need to protect children from the rampant and insidious criminal activity.
For more information, see this report by David Savage in The Los Angeles Times. The Court's decision in United States v. Williams is available here.
For more information about Internet law-related matters, please contact us at info@technologylawgroup.com or +1.208.939.4472.
Law enforcement officials praise the decision as enabling them to more efficiently combat criminal acts surrounding and depicting the sexual abuse of children. The decision is one of an ongoing judicial rulings on legislative attempts to balance free speech rights against the need to protect children from the rampant and insidious criminal activity.
For more information, see this report by David Savage in The Los Angeles Times. The Court's decision in United States v. Williams is available here.
For more information about Internet law-related matters, please contact us at info@technologylawgroup.com or +1.208.939.4472.
Monday, May 19, 2008
New York Traffic Courts: The Surcharge Tax Increase
Note: For help, please check out our New York Traffic Lawyer page.Change is brewing in the surcharges for various offenses in the NY traffic courts and criminal courts. I've posted a portion of the schedule below that's most relevant to what we do, in the usual traffic ticket and DWI cases, will discuss these massive tax increases further below. I should also note that this schedule is for town
Saturday, May 17, 2008
Albany DWI and DA Soares' New Policy
Kudos to the Times Union for breaking an important legal news story. The Albany District Attorney's office has adopted a new policy regarding plea bargains in drunk driving cases.For starters, a big chunk of the policy depends on the accused person's blood alcohol content, or BAC. Also, the accused must also complete an "alcohol evaluation" before there will be any plea bargain offer.If the BAC
Tuesday, May 13, 2008
David Soares and Citizen Action
I just got an e-mail for a David Soares fundraiser, and I just have to debunk the propaganda. Here are some of the claims, and my comments:In his first term in office, David has fulfilled his campaign promises by:Shutting down crack houses through our Safe Homes, Safe Streets Program to improve the quality of life in our neighborhoodsI don't remember a campaign promise to shut down crack houses.
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