2006 December eBulletin - · PDF file• Hogan & Hartson –Congress Authorizes Civil Nuclear Cooperation With India; ... insurance coverage, medical staff ... pre-listing...

December 2006 e-BULLETIN

Page MEMBER NEWS • ABNR Lawyer Named Member of UN International Law Commission 2 • Davis Wright Tremaine Adds Los Angeles Health Care Partner 2 • Hoet Pelaez Castillo & Duque’s Fernando Pelaez-Pier Named Vice President International Bar Association 3 • Hogan & Hartson – Leading Tax Partner Joins Firm to Launch Moscow Tax Practice 3 • Luce Forward Hamilton & Scripps Names Three New Partners 4 • Morgan Lewis Adds Five Partners and Five Associates to Global IP Group 5 • Estudio Muniz Ramirez Perez-Taiman & Luna-Victoria Adds New Lawyers 7 • Rodyk Welcomes New Real Estate and Finance Partners 7 MAKING NEWS • Clayton Utz Closes Second Fund for Ironbridge 8 • Gide Loyrette Nouel Advises Linde AG on €4 billion disposal of its forklift division Kion Group 9 • Estudio Muniz Ramirez Perez-Taiman & Luna-Victoria Serves as Counsel to Citibank N.A. in Financing Facility to Quimpac Corp S.A.C. 9 • Luce Forward Facilitates Historic Settlement Agreement to Protect Sacred Lands of the Fort Mojave Indian Tribe 10 • Morgan Lewis Attorneys Assist in Obtaining Patent for Subject matter of Nobel Prize 11 • NautaDutilh advises Qurius N.V. in merger with Watermark 11 • Rodyk Secures Significant Court of Appeal Ruling in Minority Oppression Ruling 12 COUNTRY ROUNDUPS • AUSTRALIA – Clayton Utz – Challenges of Interlocutory Injunctions 14 • CHINA – King & Wood -New Hopes for Foreign Investors in China – SAIC Official Discusses Decree No. 81 16 • NETHERLANDS – NautaDutilh – Energy Unbundling Act 18 • NEW ZEALAND - Simpson Grierson – Domain Name Dispute Resolution Service – A Look at New Zealand’s New Service 20 • TAIWAN –Lee and Li –Banks Under FHC Will Be Allowed to Make Long Term Investments 23 • UNITED STATES • Hogan & Hartson –Congress Authorizes Civil Nuclear Cooperation With India; US Export Controls to be Eased 24 • Davis Wright Tremaine – New Amendments to Federal Rules Civil Procedure 27 • Morgan Lewis – Immigration Alert – Passports Required for All Air Travel to United States as of January 23 2007 30 PRAC EVENTS (Members Only) • Colombia Conference • March 17-21, 2007 • Seoul Conference • October 2007-• Details coming soon • PRAC @ Inta 2007 - Members’ Gathering – Details coming soon Tools to Use • PRAC Contacts Matrix & Email Listing –Update (member version only) • Directory 2006 Member Firms now available at PRAC web site • Expert System – IP & Licensing Capabilities Survey available at PRAC web site Private Libraries (members only) PRAC e-Bulletin is published monthly Visit us on line at www.prac.org

ALI BUDIARDJO NUGROHO REKSODIPUTRO LAWYER NAMED MEMBER of UN INTERNATIONAL LAW COMMISSION

JAKARTA - Nugroho Wisnumurti, an Of Counsel of Ali Budiardjo, Nugroho, Reksodiputro was recently appointed as a member of the United Nation International Law Commission (“United Nations ILC”) for the 2007-2011 period. The appointment was made during the 61st General Assembly session of the United Nation in New York, after he successfully secured 135 (one hundred and thirty-five) supports out of the votes of a total of United Nations 190 (one hundred and ninety) member states which cast their votes for this election. Mr. Wisnumurti was competing tightly against 10 (ten) other candidates who pursued the 7 (seven) seats available for the Asian region. The ten other candidates were representatives of China, Japan, the Philippines, Iran, Qatar, India, Jordan, Sri Lanka, Lebanon and Syria. Of the total 34 (thirty-four) ILC memberships, 7 (seven) had been allotted to the Asian region, 8 (eight) to Africa, another 8 (eight) to Western Europe, 4 (four) to Eastern Europe and 7 (seven) to Latin America and the Caribbean islands. All of the members of the United Nations ILC are experts in international law, and pursuant to its Mandate at the formation of the International Law Commission , their task is to promote the development of international laws. The job of the newly elected members will commence on 1 January 2007 and end on 31 December 2011. Although nominated by Indonesia, Nugroho Wisnumurti’s membership in the ILC will be in his personal capacity. Before Nugroho, Indonesia’s former minister Mochtar Kusuma Atmadja was a United Nations ILC member for the 1992-2001 period. Mr. Wisnumurti has a Master degree from the Faculty of Law of University of Indonesia and an LL.M degree from Columbia University School of Law. For additional information visit www.abnrlaw.com DAVIS WRIGHT TREMAINE ADDS LOS ANGELES HEALTH CARE PARTNER

December 1, 2006

LOS ANGELES, CA – DEC. 1, 2006 – Health care attorney, Robert Layton, has joined the national law firm of Davis Wright Tremaine LLP as a partner. Formerly a partner in the Los Angeles office of Sheppard Mullin Richter & Hampton LLP, Layton has more than 30 years of experience representing health care organizations with commercial litigation matters, RICO, fraud abuse, health care regulation, professional liability, insurance coverage, medical staff and peer review, physician licensing, consent and bio-ethics. Layton’s clients have included some of the nation’s largest hospital systems, provider groups, IPAs and other health care organizations. “Bob’s vast experience and knowledge of the industry is a perfect complement to our national health care practice,” said Robert G. Homchick, chair of Davis Wright Tremaine’s health care practice. “We are always looking for first rate lawyers to join our firm and Bob is a perfect fit.”

“We are thrilled to have Bob on board,” said Richard Ellingsen, Davis Wright Tremaine’s Managing Partner. “He is well-known and respected within the Southern California health care community and brings additional depth and breadth to our national health care practice.”

A graduate of University of California-Davis (B.A. and J.D.), Layton has been a frequent speaker at a number of health care conferences, including events hosted by the American Hospital Association and the California Academy of Family Physicians. “I am very pleased about joining DWT,” said Layton, “and adding to their exemplary reputation as a quality legal provider to the health care industry.”

Davis Wright Tremaine LLP is a national business and litigation law firm with more than 420 attorneys in nine offices. Based in our Seattle, Portland, San Francisco, Los Angeles, Anchorage, and Washington, D.C. offices, our health care practice comprises more than 60 attorneys who counsel industry clients across the nation.

For additional information visit www.dwt.com

HOET PELAEZ CASTILLO & DUQUE’S FERNANDO PELAEZ-PIER NAMED VICE PRESIDENT INTERNATIONAL BAR ASSOCIATION

VENEZUELA

Peláez-Pier Fernando Peláez-Pier, a partner at Hoet Peláez Castillo & Duque, is the first Venezuelan lawyer to be named as vice president of the International Bar Association (IBA).,

The appointment, a two-year term ending in December 2008, is the latest in a long line of positions that Peláez-Pier has held at the IBA. Having helped to institute the association's increasingly successful Latin American forum in the 1990s, Peláez-Pier was then elevated to his current position as the IBA's secretary general in 2005.

Peláez-Pier says that he maintains his domestic practice, however, maintaining six clients, including Samsung, Renault and IBM. "It is important to remain involved in the day-to-day practice," he explains.

For additional information visit www.hpcd-com HOGAN & HARTSON – LEADING TAX PARTNER JOINS FIRM TO LAUNCH MOSCOW TAX PRACTICE

MOSCOW, December 1, 2006 – Hogan & Hartson LLP has expanded its Moscow operations with the addition of prominent tax partner Ilya Rybalkin. Rybalkin, who has extensive experience advising on Russian and international tax issues in cross-border mergers and acquisitions; corporate restructurings, including pre-listing restructurings; financial projects; and private equity and real estate fund structuring; is initiating the firm’s Moscow tax practice. Rybalkin’s practice focuses on international and domestic tax issues, with an emphasis on tax efficient cross-border financing structures. He advises major Russian companies on structuring their international operations, and he advises international companies on the planning and implementation of tax-driven investment structures in Russia. Rybalkin also advises clients in a wide range of industries, including oil & gas, downstream, automotive, real estate, and food. Peter Pettibone, managing partner of the firm’s Moscow office, is enthused about the move. “Ilya is an excellent addition to Hogan & Hartson, both personally and professionally. Previously, he worked on some tax matters for our firm’s clients. There are synergies in better serving those clients, as well as reaching out to new ones.” “By extending our tax capabilities to Moscow, Hogan & Hartson now is one of the few global law firms to offer integrated international legal and tax advice in multi-jurisdictional transactions,” said J. Warren Gorrell, Jr., chairman of Hogan & Hartson. Rybalkin joins from the Moscow office of a Munich-based international law firm. With his German business background and German language capabilities, he looks forward to working closely with the firm’s Berlin and Munich offices.

Commenting on his arrival at the firm, Rybalkin said, “I'm happy to have the opportunity to use my energy and experience in the highly professional and yet friendly environment of a truly international firm having strong tax capabilities in the United States, UK, and other European countries.” Rybalkin has been recognized for his accomplishments as a tax lawyer by the European Legal 500. About Hogan & Hartson Hogan & Hartson is an international law firm headquartered in Washington, D.C., with over 1,000 attorneys practicing in 23 offices around the globe. The firm's broad-based international practice cuts across virtually all legal disciplines and industries. Hogan & Hartson has offices in Baltimore, Beijing, Berlin, Boulder, Brussels, Budapest, Caracas, Colorado Springs, Denver, Geneva, Hong Kong, London, Los Angeles, Miami, Moscow, Munich, New York, Northern Virginia, Paris, Shanghai, Tokyo, Warsaw, and Washington, D.C. For more information about the firm, visit www.hhlaw.com LUCE FORWARD HAMILTON & SCRIPPS NAMES THREE NEW PARTNERS

December 11, 2006

Luce Forward attorneys Karen M. Clemes, Karolina A. Ericsson, and Jason A. Femrite have been elected partners of the firm, effective January 1, 2007. “Karen, Karolina, and Jason are extremely accomplished attorneys, who have demonstrated the integrity, excellence and commitment necessary to achieve a successful and significant professional career. Their skill and dedication have provided important contributions to the successes of our clients and the betterment of for our community,” said Robert J. Bell, Luce Forward’s Managing Partner. “Election to partner in our firm is recognition of the outstanding professional accomplishments of these fine attorneys.” Karen M. Clemes

Jason A. FemriteKarolina A. Ericsson

Clemes, who practices in the firm's downtown San Diego office, specializes in employment discrimination and harassment, wrongful termination, retaliation, disability claims, wage and hour issues and trade secret issues as a part of the firm's Labor and Employment Practice Group. Her practice includes both litigation (including class action defense) and preventative counseling and training. She serves as Vice Chair, Board of Directors of Partnerships With Industry, an organization that provides job training, placement, and ongoing support services for adults with developmental disabilities to work in the community. Clemes is also Chair-Elect, Board of Directors for the J. Reuben Clark Law Society. She earned both Bachelor of Arts and Master of Arts degrees from Brigham Young University, and a Juris Doctor degree summa cum laude from California Western School of Law. Clemes began practicing at Luce Forward in 1999, and previously served as Law Clerk to the Honorable David R. Thompson, U.S. Court of Appeals, Ninth Circuit. Ericsson is also based in the firm’s downtown San Diego office, and specializes in real estate transactions including asquisitions as a part of the firm’s tenant-in-common (TIC) specialization. A member of Luce Forward’s Real Estate Practice Group, Ericsson’s practice also includes affordable housing issues. She is a Board Member of the Wakeland Housing and Development Corporation, an organization that works to develop quality affordable housing projects with resident-education programs for low-income families. She is a Mentor Attorney and Advisory Committee member of VIP Mentors, an organization that matches parolees from the California Youth Authority (CYA) with lawyers who act as mentors. Ericsson is also a Board Member of Community Connection, and a member of the San Diego Housing Federation Board. Prior to joining Luce Forward, Ericsson served as a Law Clerk to the Honorable Napoleon A. Jones, Jr., U.S. District Court, Southern District. She earned a Bachelor of Science degree from the University of California San Diego and a Juris Doctor from Stanford Law School. Ericsson was the recipient of the Foundation of the State Bar of California Scholarship.

Femrite, is based in the firm’s Carmel Valley / Del Mar office and has been practicing with Luce Forward for over seven years. He is a member of the firm’s Business / Corporate Practice Group, for which he serves as Co-Chair of the Mergers and Acquisitions and Corporate Finance Sections. His practice includes an emphasis on mergers and acquisitions, as well as private equity, corporate and venture finance, securities and general corporate matters. He represents both private and publicly held companies, funds and investment firms in a wide range of transactions from structure and formation to capitalization, finance and acquisition. Femrite represents clients in many industries, including biotechnology, life sciences, action sports, venture finance, manufacturing and homebuilding. He earned a Bachelor of Arts degree from the University of California San Diego, and a Juris Doctor, cum laude and Order of the Coif from the University of San Diego. For additional information visit us at www.luce.com MORGAN LEWIS & BOCKIUS ADDS FIVE PARTNERS AND FIVE ASSOCIATES TO GLOBAL IP GROUP

SAN FRANCISCO, Nov. 28, 2006: Morgan Lewis is pleased to announce the addition of five partners and five associates to its global Intellectual Property Practice as of December 1. Based in San Francisco and Palo Alto, the attorneys will focus primarily on counseling, portfolio development and protection, due diligence, and litigation in the life sciences and high-tech industries.

The additions grow Morgan Lewis’s Intellectual Property Practice to some 150 attorneys in the United States, Tokyo, and Beijing combined. All five incoming partners have career roots with Flehr Hohbach Test Albritton & Herbert, a leader in the practice of life sciences and intellectual property law for 50 years.

“The group joining us brings a depth and breadth of experience that is extremely rare in the California marketplace,” said Jeffry Mann, Life Sciences partner and head of the firm’s San Francisco Intellectual Property group. “Their arrival demonstrates the firm’s commitment to offering our life sciences and technology clients the highest-quality and most innovative IP counseling.”

Mann said that the incoming attorneys augment the firm's deep capabilities in IP portfolio strategy and development, and in due diligence for mergers, acquisitions, and financing placements for clients in California, across the United States, and overseas. The addition of the new partners and associates follows the arrival in October of Life Sciences-IP attorney Matthew B. Murphy, former vice president and general counsel for Pacific Biosciences of California Inc. and now senior counsel in Morgan Lewis’s San Francisco office.

The new partners, all from the Northern California offices of Dorsey & Whitney, include:

Robin Silva: Ms. Silva, most recently a partner in the patent group at Dorsey and co-chair of the firm’s life sciences group, focuses on portfolio strategic development, management, and counseling in domestic and international issues, with an emphasis in emerging biotechnology and biopharmaceutical companies. Capabilities include patent prosecution, opinion work (freedom to operate, invalidity, and non-infringement), IP due diligence (financings and licensing), mining portfolios for licensing and interference opportunities, and working with business development personnel and licensing managers to maximize portfolio value. Ms. Silva has represented a variety of biotechnology clients including universities, startups, emerging companies, and public companies. Ms. Silva earned her B.S. in molecular, cellular, and developmental biology from the University of Colorado, Boulder (1984) and her J.D. from University of California, Berkeley, School of Law (Boalt Hall) (1993). She worked for six years at Genencor in the protein chemistry department prior to law school.

David J. Brezner: Mr. Brezner focuses on intellectual property litigation emphasizing patents, trademarks, and trade secrets, and on counseling clients from startups through mature companies in all aspects of intellectual property, particularly in the areas of patent prosecution, due diligence, and freedom to operate analyses (validity and infringement opinions and intellectual property audits included). His representations have involved a broad array of technologies with an emphasis in the chemical and biotechnology fields, including chemical processes and compositions such as polymers and pharmaceuticals, nucleic acid and protein screening and drugs, diagnostic and therapeutic assays, medical devices, food technology, and chromatography equipment. Mr. Brezner was named a Top Lawyer in the Bay Area in IP Litigation (Bay Area Lawyer-2006) and voted one of California’s Top Patent Lawyers (California Lawyer). Mr. Brezner earned his B.S. in chemical engineering from the University of Rochester (1962) and his J.D. from University of California, Hastings College of the Law (1965). He attended the Master in Patent Law program at George Washington University while working as a patent examiner.

Richard Trecartin: Mr. Trecartin’s broad practice—covering patents, technology commerce, venture capital, and emerging companies—emphasizes patent prosecution in the biotechnology and chemical fields; intellectual property portfolio management; validity and infringement opinions; and intellectual property due diligence. In the life sciences and healthcare industries, Mr. Trecartin has focused on transgenic animals and plants, engineered proteins, and stem cells, among other areas, as well as diagnostics and therapeutics. Mr. Trecartin also has broad chemical, microfluidic, and nanotechnology practices. He earned his B.S. from University of California, Berkeley, College of Chemistry (1970) and his J.D. from Golden Gate University School of Law (1983).

Maria S. Swiatek: Ms. Swiatek most recently was a partner in the patent group at Dorsey & Whitney and head of Dorsey’s Palo Alto patent group. She focuses her practice on strategic counseling, portfolio development, patent prosecution, and infringement and validity opinions, as well as intellectual property transactions including mergers and acquisitions and licensing—with an emphasis in the semiconductor, telecommunications, chemical, nanotechnology, energy, and medical device industries. Prior to entering private practice, Ms. Swiatek was senior IP counsel for Watkins-Johnson, a Silicon Valley–based technology company. Before entering law school, Ms. Swiatek worked as a chemical engineer in the pharmaceutical industry. She earned her B.S. in chemical engineering with a minor in materials science from California Polytechnic State University, Pomona (1986) and her J.D., with distinction, from University of the Pacific, McGeorge School of Law (1992).

Victor E. Johnson: Mr. Johnson's practice includes counseling clients in various aspects of intellectual property matters, including the areas of patent and trademark procurement, due diligence, and opinion work (freedom to operate, invalidity, and non-infringement). Mr. Johnson has experience in the development and management of worldwide intellectual property portfolios for both startups and mature companies. He also has experience with various technologies, including molded containers and closures, semiconductor fabrication equipment, bioanalytical measurement systems, chromatography equipment, medical and dental devices, and agricultural and food processing equipment. Mr. Johnson earned his B.S. in mechanical engineering from University of Massachusetts at Lowell (1989) and his J.D. from George Washington University Law School (1999). While attending law school, he worked as an intern with the U.S. International Trade Commission and as a primary examiner for the U.S. Patent and Trademark Office.

Incoming associates, also from Dorsey & Whitney, include: Tao Huang (biotechnology and semiconductor industries, patent strategy counseling, due diligence review, freedom-to-operate analysis, portfolio management, patent prosecution); Tuan N. Nguyen (patent law in the life sciences industries, patent prosecution, freedom to operate opinions); Melissa Souza (patent prosecution, trademark prosecution, and corporate matters); Robert Edesess (preparation and prosecution of domestic and foreign patents in the mechanical, electro-mechanical, semiconductor, nanotechnology, agricultural, and biotechnology fields); and Diane J. Mason (trademark and patent law, emphasis on intellectual property litigation).

About Morgan, Lewis & Bockius LLP Morgan Lewis is a global law firm with more than 1,300 lawyers in 21 offices located in Beijing, Boston, Brussels, Chicago, Dallas, Frankfurt, Harrisburg, Irvine, London, Los Angeles, Miami, Minneapolis, New York, Palo Alto, Paris, Philadelphia, Pittsburgh, Princeton, San Francisco, Tokyo, and Washington, D.C. For more information about Morgan Lewis or its practices, please visit us online at www.morganlewis.com.

ESTUDIO MUNIZ RAMIREZ PEREZ-TAIMAN & LUNA-VICTORIA ADDS NEW LAWYERS

Lima, November 2006.- Estudio Muñiz, Ramírez, Pérez–Taiman & Luna-Victoria Abogados announced that Romy Henríquez Gutiérrez and Fernando Tello Puerta have become associates of the Firm and will develop their activities for the Concession Practice Group and the Tax Practice Group, respectively. Romy Henríquez Gutiérrez graduated in the upper fifth of her class at the “Antenor Orrego” University School of Law and Political Sciences, Trujillo, in 2002. In 2003, she completed a Master´s Degree program in International Relations at the “San Martin de Porres” University Corporate Governance Institute. She has also earned Diplomas in Concession and Infrastructure Law (2006), General Administrative Law with a major in Public and Administrative Management (2005), and Procedural Administrative Law with a major in Human Rights and Due Process. Her past employment experience includes Technical Secretary with the Trujillo Municipality Private Investment Promotion Commission, legal expert in the fields of Logistics, Business & Consulting, Assistant to the President of the National Youth Commission, and Assistant to the Human Rights Office of the Ministry of Foreign Affairs. In turn, Fernando Tello Puerta graduated in Law from the University of Lima in 2004. Upon graduation, he joined the Tax Department of Ernest & Young, earning vast experience in tax consulting and audit of commercial, financial and insurance companies, tax planning, transfer pricing studies, development of legislative proposals, and preparation of courses and seminars. For additional information visit us online at www.munizlaw.com RODYK WELCOMES THREE NEW REAL ESTATE AND FINANCE PARTNERS

Singapore - Rodyk is pleased to welcome Low Boon Yean and Melanie Lim to our Real Estate Practice Group and Marian Ho to our Finance Practice Group. Their bios and contact information follow. MARIAN HO: Marian joins Rodyk as Salaried Partner in our Corporate Finance Practice Group. Marian was admitted to the Singapore Bar in 1991and has been in private practice since. Marian’s experience lies in corporate finance, asset management and funds, mergers and acquisitions, general corporate work and corporate secretarial work. Marian’s significant transactions include: Acting for Neo Corporation Ltd in the reverse takeover of Presscrete Engineering Ltd. Acting for Royal Bank of Scotland in private placement of interests in collective investment schemes. Acting for a leading security services company in acquisitions of competitive firms. Contact details: Marian HO DID: +65 6885 3610 Email: [email protected] MELANIE LIM: Melanie rejoins Rodyk’s Real Estate Practice Group as Salaried Partner. Melanie’s experience lies in property law, property development, banking & finance, and landlord & tenant transactions. She has represented major real estate developers in the negotiation and documentation of transactions in the areas of acquisition, finance, development and sale of property. Melanie was admitted to the Singapore bar in 1993 and also to the Roll of Solicitors of the Supreme Court of England and Wales in 1997. Melanie took a year off work and Rodyk is very pleased to welcome her back. Contact details: Melanie LIM DID: +65 6885 3651 Email: [email protected]

LOW BOON YEAN: Boon Yean, who was admitted to the Singapore bar in 1993, joins us as Salaried Partner in our Real Estate Practice Group from the Singapore Land Authority where she served as in-house legal counsel. Boon Yean also has private sector experience in real estate transactions, leases, state land issues, and securities for lenders. She advises on acquisition of development sites from both the State and private sector, and manages sales of development projects. Contact details: LOW Boon Yean DID: +65 6885 3623 Email: [email protected] For additional information visit us at www.rodyk.com

MAKING NEWS – CLAYTON UTZ CLOSES SECOND FUND FOR IRONBRIDGE

Sydney, 29 November 2006: Clayton Utz continues to be involved in some of the most significant and high-profile private equity transactions taking place in Australia, the latest being Ironbridge Capital's A$1.05 billion MBO fund.

Clayton Utz partner David Stammers advised Ironbridge Capital Limited on all aspects of the establishment of Ironbridge Fund II, Australia's second largest private equity fund to date. The Fund closed on 1 November.

Ironbridge Fund II will target buy-out investments in sectors with growth potential (generally in the A$150 million to A$750 million range) and will also consider co-investments with its more than 40-strong institutional investors where appropriate. In addition to Australian institutional investors including Macquarie Funds Management and super funds such as UniSuper and Australia Super, Ironbridge Fund II attracted international investors from Asia, North America, Europe, and for the first time, Japan.

The Fund has already made its first (joint) acquisition with private equity firm Archer Capital of US conglomerate 3M's Asia-Pacific and African pharmaceutical business, a $450 million deal. David Stammers advised the Fund on the acquisition, alongside Clayton Utz Private Equity practice head Philip Kapp, partners Michael Riches and Jonathan Donald and senior associate Grant Koch.

Clayton Utz has been involved in a number of landmark transactions for Ironbridge Capital Limited, including the A$500 million acquisition of Super A-Mart; the acquisition of a 50 per cent interest in Riviera luxury boats; the sale of its interests in Affinity Health to Ramsay Healthcare (a A$1.45 billion deal), and; the acquisition of the BBQs Galore business (the first public to private of a NASDAQ listed entity undertaken by an Australian firm).

Reiterating comments by Ironbridge's managing partner that private equity had come of age, Philip Kapp said Clayton Utz was well positioned to capitalise on the current level of activity in the sector, having made a strategic decision two years ago to build up its private equity capability.

"My joining Clayton Utz in 2004 along with David Stammers, Michael Riches and Jonathan Donald was a strategic move by Clayton Utz that, together with other key lateral hires, has resulted in a leading team of private equity specialists with the depth of experience to advise fund managers such as Ironbridge on all aspects of their investments."

Mr Stammers and Mr Kapp have a long-standing association with Ironbridge Capital Limited, having advised it on the establishment of its first fund, the Ironbridge Capital Fund.

Ironbridge Capital Limited is one of the most successful providers of private equity for growth businesses in Australasia, with a focus on investments in the mid-sized MBO market and expansion capital transactions in Australia and New Zealand.

In addition to Mr Kapp and Mr Stammers, Clayton Utz's national private equity team includes partner Mark Williamson (private equity - M&A and fundraising), partner Jonathan Donald and special counsel Brendon Lamers (private equity - tax), partner Michael Riches (private equity - debt finance), partner Michael Reede (private equity - media and telcos) and partner Peter Shaw and special counsel Trish Williams (emerging companies and enterprise growth specialists).

For additional information visit www.claytonutz.com

Disclaimer Clayton Utz Media Releases are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this Media Release. Persons listed may not be admitted in all states

MAKING NEWS – GIDE LOYRETTE NOUEL ADVISES LINDE AG ON €4 BILLION DISPOSAL OF ITS FORKLIFT DIVISION KION GROUP

28 November 2006 - Gide Loyrette Nouel advised Linde AG on the €4 billion disposal of its forklift division Kion Group: Gide Loyrette Nouel acted as co-legal advisers for France and China to Linde AG, the German-listed industrial gases company, for the €4 billion disposal of its forklift division Kion Group to the US finance investor KKR and Goldman Sachs. The deal has still to be approved by the European Commission (deadline is set on 22 December) but, according to the German press, this transaction is already considered to be one of the largest take-overs of a German business by international investors. Gide Loyrette Nouel acted as co-counsel for the seller's due diligence in France and China that covered a total of 14 jurisdictions. The seller was advised by a cross-jurisdictional team from Gide Loyrette Nouel led by partners Philippe Xavier-Bender and Hubert Bazin, as well as senior associates Karl Hepp de Sevelinges, Julien Berthezene and Bertrand Barrier. For additional information visit www.gide.com MAKING NEWS – ESTUDIO MUNIZ RAMIREZ PEREZ-TAIMAN & LUNA VICTORIA SERVES AS COUNSEL TO CITIBANK N.A. IN FINANCING FACILITY TO QUIMPAC CORP. S.A.C

Lima, November 2006.- Partners Sergio Oquendo and Gillian Paredes and Associates Eduardo Landerer and Mercedes Fernández of the law office of Muñiz, Ramírez, Pérez-Taiman & Luna-Victoria, served as Peruvian counsel to Citibank, N.A. in a medium-term financing under New York law for US$ 15,000,000 granted to Quimpac Corp. S.A.C., one of the five largest chlorine-sodium producers in South America. This credit facility, which was closed in October 2006, will allow Quimpac Corp. S.A.C. to fund the operations of its subsidiary Papeles Nacionales S.A. The transaction singles out for the use, as collateral, of a “garantía mobiliaria de acciones” (newly created security interest for movable assets, in this case applied to shares) subject to resolutory condition, and of a guarantee trust of shares subject to suspensive condition; both security interests conditioned upon the possibility of acquiring shares owned by Quimpac Corp. S.A.C. in Quimpac S.A. under a scenario exempted from the obligation to make a takeover bid (oferta pública de adquisición). Both guarantees are subject to the laws of Peru. For additional information visit www.munizlaw.com

MAKING NEWS – LUCE FORWARD ATTORNEYS FACILITATE HISTORIC SETTLEMENT AGREEMENT TO PROTECT SACRED LANDS OF THE FORT MOJAVE INDIAN TRIBE

November 29, 2006

Settlement allows for the protection of the Topock Maze, a sacred area to the Mojave people. San Diego attorneys Steven P. McDonald and Courtney Ann Coyle have facilitated a historic settlement agreement on behalf of the Fort Mojave Indian Tribe (Tribe). In 2005, the Tribe sued Pacific Gas & Electric (PG&E), the California Department of Toxic Substances Control (DTSC) and the Metropolitan Water District of Southern California (MWD). The suit challenged DTSC's approval and PG&E's construction of a water treatment facility to purportedly prevent a groundwater contamination plume of hexavalent chromium from reaching the Colorado River. The settlement will lead to the removal of the water treatment facility, which is located in an area sacred to the Mojave people, known as the Topock Maze. The property, which MWD had sold to PG&E without doing cultural studies, will be repatriated to the Tribe. The Topock Maze is a landscape of earth drawings and archaeological sites, which is an integral part of the Tribe's creation story and the portal through which their spirits journey at the end of life. The Maze has been formally listed on the National Register of Historic Places since 1978. "We are very pleased with the settlement agreement, as it will aid in achieving our client's goal of respectfully preserving a place that is sacred to their culture," said Steven P. McDonald, a Partner in Luce Forward's Environmental Practice Group. "This unique settlement may potentially impact how both the State of California and California's largest utility works with Indian Tribes with regards to sacred areas in the future." The settlement points outlined in the agreement require PG&E's removal of the treatment plant as part of the final groundwater remedy for the chromium contamination. Also, PG&E will make changes to its corporate policies to ensure future recognition and consideration of the interests of Native Americans, including respect for sacred places. In a related settlement agreement, DTSC has agreed to expedite the regulatory process to approve the removal of the treatment and to conduct environmental reviews based on environmental conditions existing prior to any construction. DTSC also agreed to establish a formal consultation process with the Tribe to ensure that the Tribe's cultural and spiritual interests are considered in the regulatory process. Both PG&E and DTSC issued public apologies to the Tribe at a Thursday, November 8, joint press conference held on the west steps of the Capitol Building in Sacramento. Tom King, CEO of PG&E, delivered PG&E's apology to Tribal Chairwoman Nora McDowell. Maureen Gorsen, DTSC Director, delivered DTSC's apology to the Tribe. Both King and Gorsen described the settlement as historic and a model for other companies and agencies in dealing with Native American sacred places. The press conference was preceded by traditional Mojave dancers, singers and blessings. "It has been our honor and privilege to assist the Fort Mojave Indian people in protecting the Topock Maze, which is such a vital part of the Tribe's heritage" said Attorney Courtney Ann Coyle. "These agreements provide for effective collaboration between the state, federal, local governments and the Fort Mojave tribal government. We also believe that the settlements can serve as a template for other tribes who are seeking to protect their irreplaceable sacred places." This settlement marks the first time that Coyle and McDonald, who are married to one another, have worked together as co-counsel. Coyle has a private practice in environmental litigation, land use policy, legislation, project planning and consulting, with an emphasis on protecting Native American heritage resources and landscapes. McDonald, who has practiced with Luce Forward since 1989, has nearly 30 years of experience in air, hazardous waste, water quality and CEQA matters. For additional information visit us at www.luce.com

MAKING NEWS – MORGAN LEWIS ATTORNEYS ASSIST IN OBTAINING PATENT FOR SUBJECT MATTER OF NOBEL PRIZE

Morgan Lewis attorneys represented the Carnegie Institution of Washington before the U.S. Patent & Trademark Office in obtaining U.S. Patent 6,506,559, which claims the subject matter awarded the Nobel Prize in Medicine for 2006.

Andrew Fire, a scientist who discovered RNAi, or RNA interference, while at the Carnegie Institution’s Department of Embryology, and Craig C. Mello of the University of Massachusetts Medical School, were awarded the Nobel Prize in Medicine in October 2006. The Fire-Mello discovery that double-stranded RNA can quash the activity of specific genes is an important breakthrough in modern molecular biology. RNAi is now being widely used both as a research tool and for the development of products that could combat diseases such as cancer and HIV.

"I am very honored that our work has received such positive attention," said Fire. "Science is a group effort. Please recognize that the recent progress in the field of RNA-based gene silencing has involved original scientific inquiry from research groups around the world. Any prize recognition should go to the many scientists who have made individual contributions, and to the spirit of scientific community that has allowed information and ideas to flow freely. Our lab's work in this field has also been a group effort. I have been fortunate to work on this project with many talented colleagues at the Carnegie Institution, with Dr. Craig Mello and his talented colleagues at the University of Massachusetts, and with the insightful support of the National Institutes of Health," he stated.

"Every one of us at Carnegie is thrilled for Andy, for the institution, and for the promise this discovery has for advancing our understanding of basic molecular processes and helping cure disease," said Carnegie president Richard A. Meserve. "Andy’s work is a vivid example of how Carnegie’s commitment to freedom of research can yield extraordinary results for humanity."

Two other Nobel geneticists have come from Carnegie—Alfred Hershey, who won the prize in 1969 for his discovery that genes were made of DNA, and Barbara McClintock, who won in 1983 for her work on jumping genes, also known as transposable elements.

U.S. Patent 6,506,559 and corresponding foreign patents and pending applications have been licensed on a nonexclusive basis by the Carnegie Institution of Washington and the University of Massachusetts (joint owners) to more than 50 pharmaceutical, biotechnology, and agricultural companies. Paul Kokulis, senior counsel in Morgan Lewis's patent group, has managed both the prosecution of these patents and the licensing to third parties with the assistance of partner Bob Smyth and associates Sally Teng and Chris Betti.

For additional information visit us online at www.morganlewis.com MAKING NEWS – NAUTADUTILH ADVISES QURIUS N.V. IN MERGER WITH WATERMARK

AMSTERDAM November 2006: NautaDutilh advises Qurius N.V. - providing Microsoft technology based IT solutions - in their proposed merger of equals with Watermark, a Dutch based specialist in the implementation of company wide software solutions. Qurius N.V. is a Netherland based and publicly listed company on Euronext Amsterdam since 1998 (up to 11 May 2006 under the name of Magnus Holding). The proposed Merger will create Europe's largest Microsoft Dynamics partner. Given the size of the transaction, shareholders approval will need to be obtained. The NautaDutilh team included Jaap Jan Trommel, Geert Raaijmakers, Wijnand Bossenbroek, Gaby Heere and Eveline Bronkhorst. For additional information visit us at www.nautadutilh.com

MAKING NEWS – RODYK SECURES SIGNIFICANT COURT OF APPEAL RULING IN MINORITY OPPRESSION RULING

Lim Swee Khiang v Borden Co (Pte) Ltd [2006] SGCA 33 concerned an action under section 216 of the Companies Act (Chapter 50) by the minority shareholders of Borden Co (Pte) Ltd (“Borden”). The Rodyk team, comprising Lok Vi Ming, SC, Ajinderpal Singh, Edric Pan and Sun Ru-Shi, appeared on behalf of the minority shareholders before Chief Justice Chan Sek Keong, his first sitting as Chief Justice. On 8 September 2006, the Court of Appeal delivered its judgment in favour of Rodyk’s clients. Rodyk commenced an action under section 216 on behalf of the minority shareholders of Borden. Borden is a family owned “quasi-partnership” set up by six founding families. The company’s main product is the well-known medicated oil, Eagle Brand, sold in Singapore and in several other countries. The minority complained, inter alia, that the majority acted against Borden’s interests by ceding territories to PT Eagle, a company run by the fourth respondent’s son. The majority shareholders had allowed PT Eagle to intrude aggressively into Borden’s markets by ignoring legal advice to terminate a licence given years ago to PT Eagle to manufacture and sell Eagle Brand medicated products. The failure to terminate the licence was central to the appellants’ unhappiness with the respondents. At the trial, the respondents made a submission of no case to answer and elected not to give evidence. While the trial judge held that “the other shareholders in Borden… had to an extent aligned themselves with each other…”, his honour nevertheless accepted the no case submission, dismissing the appellants’ claim. The Court of Appeal overturned that decision in a judgment that is significant for a number of findings. The decision to submit no case to answer Rodyk argued that the respondents’ submission of no case to answer was flawed because it was not merely a legal strategy; on the contrary, the respondents’ main objective was to avoid cross examination in court. The court was urged to draw the necessary adverse inferences arising from such conduct. Agreeing, the Court of Appeal remarked that “in the ordinary case, the court is not concerned with how each party strategises the conduct of his case, but this case has a number of features that require this court to examine closely the complete silence of the respondents to the claims of the appellants”. In particular the Court of Appeal highlighted that the respondents’ decision to remain silent “rubbed salt into the appellants’ wounds”. The Court of Appeal’s holistic approach towards the appellants’ complaints is to be applauded. Rodyk argued there was clearly a case of systematic conduct by the respondents’ ceding control of key territories to PT Eagle. This was evidenced by the close relationship between PT Eagle and the respondents and the failure of the respondents to terminate the licence despite legal advice and the unanimous agreement at a shareholders’ meeting to do so. Such an approach is particularly crucial in minority oppression cases where the evidence is likely to take the form of isolated acts or events, but when viewed in totality inexorably point towards oppression by the majority. The Court of Appeal cautioned potential defendants in an oppression action that “…a submission of no case… is a very high-risk strategy. This is particularly so as the appellants are alleging a series of oppressive and prejudicial acts and omissions of the respondents.” Implications for quasi-partnerships The trial judge opined that there was merely a fundamental difference in the business philosophy of the disputing shareholders which did not entitle the court to second-guess management decisions. Hence while the respondents had indeed failed to terminate the licence and explain why, such “failure to explain... cannot in itself be oppressive”. The Court of Appeal took the view that the circumstances here warranted an explanation. The majority’s failure to terminate the licence had adversely affected the value of the minority’s commercial interests in the company and the nature of the relationship between the Borden shareholders was one where members had agreed to associate together in trust and confidence. One principle that may be elucidated from this is that in family-run businesses or quasi-partnerships a failure to explain management decisions, especially when the decisions prima facie prejudice the commercial interests of the minority members, may suffice to establish oppression. Companies run in such a manner should therefore take heed.

Remedy of damages in oppression cases Awarding damages for oppressive conduct is rare in oppression cases, although the court’s power to do so has been alluded to: see Kumagai Gumi v Zenecon [1995] 2 SLR 297 and Yeo Hung Khiang [1999] 2 SLR 129. Here, interestingly, the Court of Appeal agreed that the losses caused to Borden as a result of the respondents’ oppressive conduct should be taken into account when valuing the shares. Specific directions were given in this regard in the judgment. Such directions are thought to be the first of its kind and point the way towards a more specific and perhaps more accurate way of valuing shares where the Court orders a share buy-out in section 216 cases. For additional information visit us at www.rodyk.com or contact: LOK Vi Ming, S.C. Direct: +65 6885 36 0 Email: [email protected] Ajinderpal SINGH Direct: +65 6885 3619 Email: [email protected] Edric PAN Direct: +65 6885 3645 Email: [email protected] SUN Ru-Shi Direct: +65 6885 3660 Email: [email protected]

Life Sciences Insights

01 December 2006

The challenges of interlocutory injunctions: CSL Ltd v GlaxoSmithKline Australia

A recent Federal Court decision, CSL Ltd v GlaxoSmithKl ine Austral ia [2006] FCA 1301, provides a t imely reminder of the complicat ions that can ar ise when comparat ive advert is ing is deployed and neatly i l lustrates the chal lenges of obtaining interlocutory injunctive rel ief.

What needs to be establ ished in order to obtain an inter locutory injunction is well sett led and recently reaff irmed by the High Court. [1] A court wi l l consider whether an applicant has establ ished that:

there is a serious question to be tr ied; without an injunction, he or she wil l suffer injury for which damages wil l not be an adequate compensation; and the balance of convenience favours the grant of such rel ief ("the balance of convenience requirement").

While these requirements are readily stated, i t is not always easy to apply them or to know what wi l l sat isfy a court to exercise i ts discretion and grant the interlocutory injunction. This is part icular ly so with the balance of convenience requirement.

Background

GARDASIL is the world 's f i rst cervical cancer vaccine and the only vaccine currently approved in Austral ia. Al though GSKA has appl ied to the Therapeutic Goods Administrat ion ("TGA") for approval to market i ts own cervical cancer vaccine, CERVARIX, approval has not yet been granted.

Earl ier this year in preparation for the launch of CERVARIX, GSKA engaged in a market research project, which involved providing at least 300 general pract i t ioners with an Information Sheet (the "GSKA Information Sheet") containing amongst other things, comparat ive information on GARDASIL and CERVARIX.

Concerned by GSKA's marketing tact ics, CSL sought an interlocutory injunction to prevent GSKA from providing al legedly inaccurate information about i ts vaccine, GARDASIL.

CSL brought an act ion against GSKA for misleading and deceptive conduct under the Trade Pract ices Act1974 (Cth) and al leged that GSKA had breached section 52 of the Act by making representat ions in trade or commerce that were untrue, in the GSKA Information Sheet and/or in the subsequent telephone interviews conducted with the General Pract i t ioners.

CSL claimed that the GSKA Information Sheet presented an inaccurate, incomplete and unfair prof i le of i ts product, in an attempt to reduce market confidence and create "fear, uncertainty and doubt" in GARDASIL. CSL argued that the representat ions were designed to convey the message to general practi t ioners and other health professionals that CERVARIX is a superior vaccine to GARDASIL.

Balance of convenience - weighing the evidence

As is often the case in applicat ions of this kind, the crucial question was where the balance of convenience l ies. Sometimes there is a r isk of overstat ing one's case in an attempt to t i l t the balance in your favour. Just ice Weinberg found this to be the case here.

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GSKA rel ied on evidence of the harm it would suffer i f i t were temporari ly restrained from repeating the representations made in i ts information sheet. I t argued that i f i t were prevented unti l tr ia l from discussing the characterist ics and attr ibutes of CERVARIX, GSKA would be unable to communicate effect ively with the TGA, the Pharmaceutical Benefi ts Advisory Committee or State tender bodies or part ic ipate in meaningful scienti f ic debate.

On the other hand, CSL argued that i f GSKA's conduct was not restrained, i ts marketing launch of GARDASIL would continue to be substant ial ly disrupted. I t further submitted that tender co-ordinators, who would be responsible for large orders i f a public immunisation program were implemented, would be unfair ly prejudiced against GARDASIL on the basis of inaccurate or incomplete information.

Just ice Weinberg was cri t ical of both part ies' submissions and held the view that both part ies had overstated their cases.

Commenting on GSKA's claims, Just ice Weinberg was quick to observe that GSKA was free to legit imately "market" CERVARIX in Austral ia and that CSL sought only to restrain GSKA from unfair ly and inaccurately comparing CERVARIX to GARDASIL.

As for CSL's claims, His Honour stated:

"I f CSL's claim is accepted, GSKA wil l be enjoined from making representat ions of the kind impugned well before the TGA has completed i ts review of CERVARIX. That means that nei ther the PBAC, nor the State tender bodies are l ikely to be inf luenced by those representat ions. Any other harm that CSL might suffer between now and the tr ia l is speculat ive, and not of suff ic ient gravity to warrant imposing restr ict ions upon GSKA's own market ing endeavours."

Justice Weinberg accepted that the submissions were f inely balanced but after weighing the evidence, concluded that he was not persuaded that the balance of convenience favoured the grant of inter locutory rel ief. The fact that there would be a speedy tr ial and early resolut ion of CSL's claim for f inal rel ief was a determinat ive factor which t i l ted the balance in favour of GSKA. Yet had i t not been for this fact, Just ice Weinberg stated that he may have been incl ined to grant, at least some of, the orders sought by CSL.

Implications

In some cases i t wi l l be dif f icult to predict which way a judge wi l l turn on the question of balance of convenience. I t seems that a combination of factors led Just ice Weinberg to reach the decision he did. In his view, the harm CSL al legedly suffered was not suff ic ient to just i fy the granting of an injunct ion. This, coupled with a swif t f inal hearing, was the determinative factor in this case.

[1 ] Austra l ian Broadcast ing Corporat ion v O 'Nei l l [2006] HCA 46

For more information regarding this article please contact:

Name: Colin Loveday - PartnerTel: +61 2 9353 4193 Fax: +61 2 8220 6700 Email: [email protected]

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Disclaimer Clayton Utz Insights is produced by Clayton Utz. It is intended to provide general information in summary form on legal topics, current at the time of publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters. Persons listed may not be admitted in all states.

King & Wood China Bulletin 2006 Special Issue October 2006

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New Hopes for Foreign Investors in China–SAIC Official Discusses Decree No. 81

Interviewed by Liu Xinhui* and Wang Su**

On April 24, 2006, the State Administration for Industry and Commerce (SAIC), the Ministry of Commerce, General Administration of Customs, and the State Administration of Foreign Exchange jointly issued the Circular on Printing and Distributing the Opinions on the Enforcement of Issues Related to the Application of Laws and Regulations Governing the Administration of the Approval and Registration of Foreign Invested Companies (Decree No. 81). The promulgation of Decree No. 81 provides concrete legal grounds for enhancing the accuracy of applying related laws and regulations and their coordination, improving the efficiency of approval and registration of foreign invested companies (FICs) as well as increasing the attractiveness of China’s investment facilities. Upon the release of Decree No. 81, King & Wood China Bulletin communicated tête-à-tête with Mr. Liu Wei, Deputy Director of the Foreign Company Registration Office of SAIC regarding the Decree. In our talk with Mr. Liu, we were welcomed by the straightforwardness and openness of new Chinese government officials, instead of the traditional government “diplomacy.” Also, we were impressed by the compliance, the friendly style of China’s administrative enforcement authority and the government’s effort in creating a better business environment.

Decree No. 81, a manual for the implementation of the 2005 amendments of the Company Law and the Administrative Regulation on Company Registration (Registration Regulation), further clarifies major changes in the said two legislations, including the incorporation of limited liability companies owned by a single legal person, means of capital contribution by shareholders, the incorporation and alteration registration, etc. When commenting on the Decree, Mr. Liu says that it seeks to improve the coordination of the said legislations, and, at the same time, to offer an efficient and lenient investment environment so that the country could better satisfy its WTO commitments. He points out that the Decree manages to achieve “relaxation” and “limitations” by permitting the incorporation of limited liability companies owned by a single legal person and imposing necessary liabilities on such company via registration formalities. In addition, the Decree reaffirms the status of the board meeting, sets forth new requirements on the corporate governance of FICs and provides tailored solutions for different types of FICs. One of the most significant changes made by Decree No.81 is that Article 25 of the Decree cancels the registration of representative office of FICs (ROFIC) with SAIC, which caused a stir among more than 50,000 ROFICs across the country. According to Mr. Liu, such an arrangement is made to simplify registration formalities—the law does not deny the legitimacy of ROFIC and FICs setting up such offices for business liaison where needed. Mr. Liu remarks that SAIC permits the existing ROFICs to stay, but will not process alteration or renewal, which means the existing ROFICs shall be cancelled upon expiration. Upon the cancellation of their representation office, FICs may

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apply to establish branches under the simplified requirements and incorporation formalities. Branches may engage in no operational activities1 and register with SAIC. In addition, Article 5 of the Decree provides that the qualification or identity certificate of foreign investors must be certified or notarized, which might be a hassle for some off-shore investors. Mr. Liu explains, “As China’s foreign investment policy evolves to ‘selecting investment’ from ‘introducing investment,’ the government hopes to improve the quality of foreign investment through more stringent screening. Such a policy is consistent with the examination principle of Registration Regulation and could ensure the certificates are relatively reliable.” He reveals that SAIC is thinking about permitting off-shore investors to perform such formality in a suzerain, a third country with foreign relations with a suzerain or in China to facilitate investors. Enacted to improve the ancillary regulations of the 2005 amendments of Company Law, some aspects of Decree No. 81 still need further improvement according to Mr. Liu.

Although imperfect, Decree No. 81 sheds new hopes on foreign investors in China—the lawmakers and enforcement authorities are making efforts to make China’s legal system work as a well-coordinated engine. If the booming economy draws investors to China like a magnet, the perfection of legislation and the increasing openness of the lawmakers will definitely boost its magnetism.

(The article was written in Chinese, the English is the translation.)

* Liu Xinui is an associate at Securities Group, King & Wood’s Beijing office. **Wang Su is Executive Editor, King & Wood China Bulletin.

1 As for what “operational activities” means, Mr. Liu says the law is silent on such definition, but in practice they usually include but are not limited to manufacturing, service, transportation and warehousing.

Energy Unbundling Act 16 November 2006This update is sent from NautaDutilh

Unbundling Act Adopted with ProvisoOn November 14, 2006 the First Chamber of the Netherlands parliament (also known as theSenate) agreed to adopt the so called Unbundling Act (the "Act"). However, the Act was adoptedwith an unexpected proviso: the forced unbundling of the Netherlands energy companies will bepostponed for an indefinite period of time.

The proposal to require the unbundling of the Netherlands energy companies has been aroundsince March 2004. Despite an enormous political lobby by the energy companies, who generallyopposed the proposal, the Second Chamber had adopted this legislation on April 27, 2000. This week’s decision of the First Chamber isn't a clear victory for either side of the debate. Although unbundling will no longer be required, in the event the energy companies want to privatize part of their business, they will not be able to do so without separating their commercial assets from their network assets.

(Non) UnbundlingThe original intent of the Act was to require the currently integrated energy companies to separatethemselves into two distinct companies to assure that they would operate either as a “commercial”energy company, i.e. involved in the sale, distribution or production of energy, or as a “network”company, i.e. a company which operates a gas and/or electricity network.

As proposed, this unbundling had to be implemented within two and a half years after the Act'seffective date. The First Chamber, however, has stipulated that the unbundling of the energycompanies only needs to be realized:(i) if a EC Directive will be implemented to prescribe such unbundling, or(ii) when the integrated energy companies frustrate the government owned independent energynetwork management. Examples presented were: engaging in activities and/or companies abroad,disruption of the market, lack of transparency of financial positions and failure to provide nondiscriminatory access to the energy networks.

TenneT Mandatory Network Manager of 110 kV+The Act extends the mandatory management of the high voltage grid by TenneT to all networkswith a voltage of 110 kV or higher. TenneT and the energy companies will have until January 1,2008 to implement this change. This part of the Act will come into effect as originally proposed.

“Fat” Network Manager RequiredThe requirement that economic ownership of the network will have to be transferred to the networkmanagers will also come into effect. The prohibition on shareholders of these network managers torefrain from any involvement with the performance of the network manager's tasks will remain ineffect. This prohibition will only be erased from the law when unbundling of the energy companiesshould at any time be required after all.

Network Encumbrance ProhibitionThe Act prohibits the network manager to grant security for the financing of activities of groupcompanies, unless this granting of security is in connection with network management or relatedactivities.

Network Privatization ProhibitionPresently, the shares in most integrated energy companies are held by local governments. Thereis not and will not be any restriction under the Act which prohibits private ownership of energycompanies which do not own or manage energy networks.

However, the Minister of Economic Affairs must give consent for any transfer of ownership of anetwork company or a network. Transfer of legal title to a network is prohibited, except to agovernment owned entity. The Act provides that transfer of the shares in a network manager,which will be the economic owner of the network, to private parties will be permitted only underconditions which are to be implemented by additional legislation. However, it became clear in thedebate in the First Chamber that neither the Minister of Economic Affairs nor the members ofParliament have any intention of drafting such legislation. The consensus in Parliament and withthe Minister is that energy networks should remain publicly owned.

Goverance Academy for Public ShareholdersTo improve the governance within the integrated energy companies, the shareholdingmunicipalities and provinces will be able to join a "Shareholders Academy", to be established bythe Ministry of Economic Affairs.

Cross Border Lease Grandfathering ProvisionsEnergy companies that have entered into cross border leases benefit from "grandfathering"provisions under the Act, the highlights of which are: (i) the privatization prohibition will not apply to the rights granted under the cross border leases toinvestors and their successors and assigns; (ii) the transfer of the management of the 110 kV grid and up to TenneT is not required if to do sowould bring the energy company in violation of a cross border lease; (iii) economic ownership of the network by the network manager may be subject to existing crossborder leases; and (iv) the networks may be encumbered to the extent required in connection with a cross borderlease.

Contact

Rotterdam: Harm Kerstholt (T +31 10 22 40 552)New York: Elizabeth van Schilfgaarde (T +1 212 218 2964)Amsterdam: Vanessa van Baasbank (T +31 20 71 71 806)

Privacy / General conditions / Disclaimer

This publication is intended to highlight certain issues. It does not intend to be comprehensive or toprovide legal advice. I

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www.typo-squattnig.co.nz Domain Name Dispute Resolution

A Look At The New System Since its launch in June 2006, New Zealand's new domain name Dispute Resolution Service (DRS) has issued four decisions. Amongst the decisions are two that have dealt with the now growing problem of typo-squatters – that is, the unfair registration of common misspellings of famous brands to take advantage of wayward typing by web users. Background In the June 2006, issue of x-tech, we provided tips for protecting brands in cyberspace. At that time, New Zealand was in the process of adopting the DRS to provide a cost-effective alternative to court action (or negotiation with owners of desired domain names). Five months later, the DRS has heard four disputes under this system. Dispute Resolution Process On 1 June 2006, InternetNZ launched the DRS to hear .nz domain name disputes. Complainants facing issues with cyber-squatting, typo-squatting, rivals using key competitor brands as domain names to divert customers, and other similar disputes can now lodge a complaint with InternetNZ. If a third party has registered, or is using, a domain name which is identical or similar to a name in which you have rights, you can utilise this process. At first instance, informal mediation with both parties and InternetNZ is encouraged. If unsuccessful, the claim can be determined by an independent expert (at a cost of around $1,800 plus GST and any legal fees). To be successful, the complainant needs to show that: (a) It has rights (either registered or unregistered) in a name or mark that is identical or

similar to the domain name in question; and (b) Ownership of the domain name by the current registrant is an "unfair registration" (ie

that it takes advantage of, or is unfairly detrimental to, your rights in the name).

If the case is heard and the claim is made out, the usual remedy is for the disputed domain name to be transferred to the complainant. If not, the domain name can remain with the registered owner. Typo-Squatting Two of the first decisions of the DRS involved fairly clear cases of typo-squatting, where the registrant had deliberately registered a domain name with misspellings or other typographical differences to capitalise on human error. The outcomes of these cases show the importance of providing good evidence to support a complaint of this nature. The cases highlight what appears to be a common problem in this area.

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wwwharcourts.co.nz An international registrant had registered the domain name wwwharcourts.co.nz. The New Zealand real estate company, Harcourts Group Ltd (HGL), filed a very brief complaint with the DRS on the basis that the registrant was "trying to attract people who are trying to get to our website, but forgetting the [.]". Although this may have been factually correct, unfortunately the evidence provided by HGL was inappropriate and the complaint was dismissed. The problem for HGL was that the international real estate company Harcourts International Ltd owned the rights to the trade mark HARCOURTS in New Zealand, and had only licensed HGL to use the name within very strict parameters. It appears that if Harcourts International Ltd had filed the complaint instead of HGL, the outcome may well have been different. Interestingly, the domain name wwwharcourts.co.nz now links to HGL. wwwbarfoots.co.nz About a month later, Barfoot and Thompson Ltd's complaint over the registration of wwwbarfoots.co.nz was decided. The evidence provided by Barfoot & Thompson Ltd included the company's New Zealand trade mark registrations for the word mark BARFOOT & THOMPSON and a stylised logo, and recent sales and marketing statistics showing widespread use of this brand. Although the trade mark registrations and trading activity often used the brand BARFOOT & THOMPSON, the expert found on the facts that Barfoot & Thompson had also used the abbreviated name BARFOOTS extensively, and were also known and recognised by this name for real estate services in New Zealand. The complainant showed that the respondent's website provided sponsored links to real estate and other websites in New Zealand, including a link to the complainant's own website. The respondent also owned several similar domain names including wwwasb.co.nz and wwwbnz.co.nz. The respondent did not submit any response or evidence. On the basis of the evidence provided, the expert held that it was reasonable to infer that the registration of wwwbarfoots.co.nz was a "relatively clear case of typo-squatting or otherwise conduct akin to it", and that the registration of other similar domain names was suggestive of a pattern of unfair registration at the expensive of other well known New Zealand organisations. The domain name was transferred to Barfoot & Thompson. Objections to the DRS Some internet commentators have objected to the DRS, arguing that domain name registration has always been, and should remain, on a "first come, first served" basis. They point out that those with a genuine dispute over a domain name can always have recourse to the courts to enforce their rights, or alternatively, if the domain name is so important to them, they should have registered it themselves. These arguments overlook a number of issues. First, legal disputes, especially those that go to court, are expensive and can be time-consuming. Second, given the wide range of variables available to potential rogue domain name registrants, it is next to impossible to consider, let alone register and maintain, all of the potentially infringing domain names. Third, typo-squatting is often done by overseas entities that specialise in buying and selling domain names. These entities can be difficult to locate and deal with. Finally, many companies may simply not wish to buy desired domain names of this nature for fear of setting a precedent that encourages further typo-squatting by other parties.

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Australian Approach The Australian Domain Name Administrator (auDA) has recently introduced a policy aimed at discouraging typo-squatting and cyber-squatting. The auDA policy creates a prohibition on registration of a domain name which is a misspelling of a company or brand name of another entity where the registrant has deliberately registered the misspelling in order to trade on another entity's goodwill. Certain categories of typo-squatting are listed such as: registering singular version of plurals (or vice versa), missing a key letter or letters, adding letters, transposing letters, replacing letters with numbers (or vice versa) or adding hyphens. The auDA has also created a Prohibited List which sets out the misspellings that have been deleted under the policy. The list includes abay.com.au, addidas.com.au, goggle.com.au, wwwmsn.com.au and many others. The policy recognises some apparent misspellings may not actually fall within the policy and has established a complaints-handling process to deal with these disputes. Conclusion As the wwwharcourts.co.nz case has shown, although the DRS does provided a system for deciding domain name disputes, care must taken in the approach to DRS cases to ensure a successful outcome. If the instances of typo-squatting continue to rise, New Zealand may consider adopting an approach similar to that recently implemented in Australia. Key Contacts Earl Gray Ph 64+ 9 977 5002 [email protected] Richard Watts Ph 64+ 9 977 5182 [email protected] Angela Stafford Ph 64+ 9 977 5327 [email protected] Note: The information provided in this article is intended to provide general information only. This information is not intended to constitute expert or professional advice and should not be relied upon as such. Specialist legal advice should always be sought for your particular circumstances.

DECEMBER 2006 ©Simpson Grierson

COUNTRY ROUND UP – TAIWAN – LEE & LI – BANKS UNDER FHC WILL BE ALLOWED TO MAKE LONG TERM INVESTMENTS

James C.C. Huang An official of the Financial Supervisory Com-mission (FSC) recently stated that the FSC in-tends to put forward amendments to the Financial Holding Company Act (FHCA) to restore the ability of banks that are subsidiaries of financial holding companies to make long-term investments. This will allow financial holding companies with banking subsidiaries greater flexibility in their application of funds, and enhance their ability to conduct mergers and acquisitions. Under Article 74 of the Banking Act, banks are permitted to apply to the competent authority to invest their funds in financial-services-related enterprises, including banks, bills finance enterprises, securities enterprises, credit card enterprises, financial leasing enterprises, insurance enterprises, trust enterprises, and other financial services related enterprises designated by the competent authority; provided, that the amount of such investments may not exceed 40% of the bank's paid-in capital (less any accumulated losses). In coordination with a government economic development program, and with the prior approval of the competent authority, a bank may also invest in enterprises not related to financial services; but such investments may not exceed 10% of the bank's paid-in capital (less accumulated losses), and a bank's investment in any individual non-financial-services enterprise may not exceed 5% of that enterprise's issued shares. However, Article 36 of the FHCA, which took effect three years ago, provides that after a bank is converted into a financial holding company, "bank investments shall be made by the financial holding company." That is to say, following the enactment of the FHCA, although a bank owned by a financial holding company may still invest in securities on the basis of financial investments in accordance with Article 74-1 of the Banking Act, investments involving mergers, acquisitions and long-term investments must be made by the parent financial holding company. Thus, a bank owned by a financial holding company is barred from making long-term reinvestments, whereas an insurance company or securities company owned by a financial holding company is subject to no such restriction. As a result, financial holding companies whose core subsidiaries are banks are at a disadvantage compared to other financial holding companies, and this unfair situation has led to much controversy. After the above provision of the FHCA is amended, investments by banks, insurance companies, and securities companies that are subsidiaries of financial holding companies will each be governed by the legislation relevant to their individual sectors, and will no longer be subject to different rules under the FHCA. For additional information visit www.leeandli.com

December 2006 | 1

UPDATE

Congress Authorizes Civil Nuclear Cooperation With India; U.S. Export Controls to be Eased

One of the last acts of the 109th Congress was to pass historic legislation to permit civil nuclear

cooperation with India. The bill, which is expected to be signed by the president, represents a

significant shift in U.S. nonproliferation policy and reflects the growing strategic ties between the

United States and India. This bill will permit the president to (1) waive certain statutory restrictions on

nuclear cooperation with India, assuming that certain conditions are met and that a nuclear

cooperation agreement is negotiated; and (2) ease restrictions on the export of nuclear materials

and reactors, as well as related components, equipment, and technology to India, for the

development of India’s civil nuclear power industry.

This development flows from the number of meetings and visits between the U.S. government and

Indian government on civil nuclear cooperation and export control issues during the last few years.

As a result, U.S. and foreign firms are likely to have substantial opportunities to provide to India

products and services related to nuclear reactors, nuclear fuel, facility construction, and related

systems, components, and equipment. The Indian government has projected the addition of nuclear

capacity in the range of 50,000 megawatts by 2032. India’s Atomic Energy Commission and the

Nuclear Power Corporation of India are seeking to launch 10 reactors of 1,000 megawatts each in

the near future. In addition, Indian companies such as Tata Power Company and Reliance Energy

Ltd. have announced plans to enter India’s nuclear power market. Accordingly, there will be a need

for nuclear fuel, nuclear reactors, related components and equipment, systems and subsystems for

nuclear power plants, facilities construction and related services, enrichment technology and

equipment, and other products and services from companies outside India. A number of U.S.

companies have already begun discussions with relevant Indian officials and are preparing for the

Indian market.

Current Prohibitions on Nuclear Exports to India

The United States sought to restrain India's nuclear activities for more than three decades, since

India declared the Nuclear Non-Proliferation Treaty (NPT) "discriminatory" and detonated its first

nuclear test in 1974. The United States helped to create the Nuclear Suppliers' Group (NSG) in 1975

to promulgate multilateral standards for nuclear export controls. Congress then passed the Nuclear

Non-Proliferation Act of 1978, amending in part the Atomic Energy Act of 1954, implementing

extensive safeguards on nuclear exports from the United States and barring such exports to states

that have detonated nuclear devices or sought to acquire or manufacture nuclear weapons. The

U.S. government imposed further sanctions on India when it detonated nuclear explosives in 1998,

although most of these restrictions were gradually lifted as U.S.-India relations improved after 2000.

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December 2006 | 2

Given India’s status outside the NPT, the U.S. government has broad restrictions on the transfer of

nuclear-related materials, components, equipment, and technology to India. Four different

government agencies administer these controls: the Nuclear Regulatory Commission, which has

jurisdiction over nuclear reactors, equipment, components, and fissile material; the Department of

Energy, which has jurisdiction over technology related to these reactors, equipment, components,

and fissile material; the Commerce Department, which has jurisdiction over dual-use items that have

nuclear proliferation implications; and the State Department, which has jurisdiction over commodities

and technology related to the design, development, manufacture, and testing of nuclear weapons.

U.S.-India Civil Nuclear Cooperation

On July 18, 2005, the U.S. and Indian governments announced a dramatic initiative on nuclear

cooperation. Under the July 2005 initiative, the U.S. government agreed to remove its restrictions on

civilian nuclear trade with India and encourage the NSG to relax its multilateral guidelines restricting

civil nuclear trade with India. For its part, India agreed to refrain from further nuclear weapons tests

(unless other countries do such), control the export of sensitive nuclear materials, and designate 14

of 22 reactors as civilian facilities subject to International Atomic Energy Agency (IAEA) safeguards

and international inspections.

To implement these commitments, the administration sought legislation from Congress that would

grant the president the authority to waive certain provisions of the Atomic Energy Act of 1954 (AEA),

which prohibits civil nuclear trade with countries that do not meet certain nonproliferation standards.

Congress took up the issue in a series of hearings in 2005 and the House and Senate passed

versions of the bill in mid-2006. The final bill, the "Henry J. Hyde United States-India Peaceful

Atomic Energy Cooperation Act of 2006" (H.R. 5682), was passed by Congress on December 9,

2006.

The bill gives the president the authority to waive certain provisions of the AEA, which currently

restrict nuclear cooperation with India, specifically Section 123a of the AEA (requiring full-scope

safeguards as a condition for continued nuclear supply from the United States and for new nuclear

cooperation agreements), Section 128 (requiring full-scope safeguards for licensed civil nuclear

exports), and Section 129 (requiring the termination of cooperation if, among other things, a non-

nuclear-weapon state detonated a nuclear explosive device after 1978, which India did in 1998).

(The AEA currently includes certain presidential waivers for these provisions, but the high standards

for such waivers effectively preclude cooperation with India.)

In order to exercise these waivers, the bill requires the president to make a determination that India

has met certain conditions: (1) presented a credible plan to separate civil and military nuclear

facilities and programs and has filed a declaration regarding its civilian facilities with the IAEA; (2)

concluded with the IAEA all legal steps prior to executing an agreement with the IAEA concerning

the application of IAEA safeguards in perpetuity to certain civil nuclear facilities; (3) made substantial

progress towards concluding the Additional Protocol concerning safeguards; (4) working actively

with the United States on concluding the Fissile Material Cutoff Treaty; (5) supporting U.S. policies

and international efforts to prevent the proliferation of enrichment and reprocessing technology; (6)

strengthened its export controls, including harmonization with and unilateral adherence to Missile

Technology Control Regime and the NSG guidelines and control lists; and (7) obtained the

December 2006 | 3

consensus agreement of the NSG to revise its guidelines to allow the transfer of nuclear items to

India by member states.

These conditions are significant and may take time to complete, especially the requirement of a

consensus agreement by the NSG to revise its guidelines with regard to India. In addition, before

cooperation can begin, the United States and India must negotiate a nuclear cooperation

agreement, and Congress must approve such an agreement. Nevertheless, the same

considerations that led Congress to believe the time was right for this legislation suggest these

hurdles will be overcome, and nuclear commerce with India will become a reality.

The bill also includes important protections—providing that nuclear cooperation with India may be

terminated under certain circumstances, including if India detonates another nuclear weapon,

breaches IAEA safeguards, violates the nuclear cooperation agreement with the United States, or

carries out certain proliferation activities. It further provides for termination if: the new nuclear

cooperation benefits India's weapons program, cooperation violates the NSG guidelines, or India

makes any materially significant transfer of nuclear material beyond the NSG guidelines or of missile

technology beyond the Missile Technology Control Regime.

In the instance of proliferation, the president may exercise a waiver if the cessation of exports would

undermine nonproliferation objectives or security, or if the offending transfer was made without the

knowledge and outside the control of the Indian government. The bill specifies that the president is

to take measures to safeguard exported nuclear articles, by means of appropriate assurances and

conditions and, as necessary, end-use monitoring. Finally, the bill has extensive provisions requiring

the president to keep Congress fully informed of the facts and implications of significant nuclear

activities involving India.

Impact on Export Controls

Assuming that India meets the conditions listed above and Congress approves a nuclear

cooperation agreement, the president could permit U.S. agencies to license nuclear exports to India.

This would allow the Nuclear Regulatory Commission and the Department of Energy to license

transfers of nuclear reactors, related components and equipment, nuclear materials, and related

technology to safeguarded facilities or programs in India. In addition, the Department of Commerce

would be in a stronger position to license previously restricted dual-use items, such as those

controlled for “Nuclear Nonproliferation (column 1)” reasons, for export to safeguarded facilities in

India. Changes to State Department licensing polices related to transfers of nuclear weapons

technology to India are not expected.

* * * * *

If you have any questions or require further information, please contact Beth Peters, Ajay

Kuntamukkala, Agnes Dover, Mary Anne Sullivan, or Dan Stenger at (202) 637-5600. This Update is for informational purposes only and is not intended as basis for decisions in specific situations. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.

Copyright © 2006 Hogan & Hartson LLP. All rights reserved. Hogan & Hartson LLP is a District of Columbia limited liability partnership with offices across the United States and around the world. Some of the offices outside of the United States are operated through affiliated partnerships, all of which are referred to herein collectively as Hogan & Hartson or the firm.

FRCP Amendments

By Elleanor H. Chin, Lance Koonce, and Charlene A. Brownlee[December 2006]

On Dec. 1, 2006 a number of significant amendments to the Federal Rules of Civil Procedure took effect. The Rule Amendments substantially impact the way in which federal litigants disclose, request, discover, produce, and protect all information that a party has created and stored electronically. Digital storage has become ubiquitous, thus the issues raised by discovery of electronic data do not arise due to the digital format alone, but more importantly due to the complexity of the way information flows through modern businesses, across multiple technology platforms.

In September 2005 the Judicial Conference Committee On Rules of Practice and Procedure1 identified three broad reasons for implementation of the rules:2

1. The volume of electronically stored information (ESI) creates discovery issues that had not arisen when litigants were dealing with documents in hard copy alone.

2. Unlike information memorialized on paper, electronic information can be dynamic; a keyboard stroke can delete or overwrite information often without meaningful direction from or even knowledge of the computer operator.

3. ESI, as distinguished from paper documents, can sometimes be unintelligible if separated from the system in which it is created and stored.

Rules 16, 26, 33, 34, 37, and 45 have all been amended to address ESI. Additionally, federal form 35, the form that is recommended for use by the parties in reporting their Rule 26(f) meeting to the court, is now similarly amended. The amendments now specifically address ESI and bring it to the forefront of discovery. The Rule Amendments should not alter the overall framework of federal litigation or the basic principles of case management. This email update provides some basic information about the key rule changes. We are happy to provide more detailed information on the Amendments, and perhaps more importantly, assist in the pre-litigation steps needed to make the impact of these rule changes as painless as possible. Our attorneys have expertise not just on the effective handling of these issues at all steps of active litigation, but on best practices for electronic records retention.

Rule 16(b) on pretrial conferences, scheduling and case management now explicitly addresses the need to include ESI at both the early mandated “meet and confer” stage and in the court’s scheduling order. It will be critical for parties to alert the court to the need to address discovery of ESI early in the litigation and to include in the scheduling order any agreements that the parties reach to facilitate discovery by minimizing the risk of waiver of privilege or work-product protection. We recommend a meeting between counsel and in-house IT personnel as soon as litigation is filed in order to address these issues, as well as to properly implement a “litigation hold” preserving relevant material. The Rule also provides for agreements the parties may reach for asserting claims of privilege after production of documents (i.e., “claw-back” provisions). This applies outside of the ESI context, but ESI raises unique privilege issues because of the volume and the complexity of ESI creation, collection and storage. Note that some jurisdictions treat disclosure of data as a waiver, regardless of any agreement between parties.

The Rule Amendments change several portions of Rule 26 on the general duties of disclosure in discovery. Rule 26(a)(1)(B) now addresses the duty to disclose ESI. Without waiting for a discovery request, a party must provide, among other things specified in the Rule, a copy, or description by category and location, of all ESI that the party may rely on to support its claims or defenses.

Rule 26(b)(2)(B) deals with accessible versus inaccessible information. There is no duty to produce ESI that

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is reasonably identified as inaccessible; that is, not accessible because of undue burden or cost. On a motion to compel discovery or for a protective order, the party from whom discovery is sought has the burden of proving that the ESI is not reasonably accessible because of undue burden or cost. Yet the court may still order discovery if the requesting party shows good cause. Importantly, a party’s identification of sources of ESI as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence. Creating an appropriate records management policy in advance of litigation is key in this respect.

Rule 26(b)(5) includes a “claw back” provision creating a procedural framework for potential sequestering and/or retrieval of privileged documents that are inadvertently disclosed during the course of discovery. Once a party receives a notice of a claim of privilege or protection, that party may not disseminate or use that information until the claim is resolved, and must take reasonable steps to retrieve the information if it has been disclosed. The producing party must preserve the information until resolution. This Rule does not address whether waiver has occurred and must be read to work in tandem with both Rule 26(f), which calls for the parties to discuss privilege issues and come to an agreement on how those issues are to be addressed, and with Rule 16(b), which as noted above allows a court to include the parties’ agreement in its scheduling order.

The “meet and confer” requirement in Rule 26(f) provides that the pre-trial conference with counsel should include a discussion about any issues relating to preservation of ESI and development of the discovery plan. The Rule Amendments mandate that the parties discuss certain matters relating specifically to ESI including:

Issues relating to preserving discoverable information

Issues relating to disclosure or discovery or electronically stored information, including the form or forms in which it should be produced

Issues relating to claims of privilege or protection as trial-preparation material, including – if the parties agree on a procedure to assert such claims after production – whether to ask the court to include their agreement in an order

Parties should plan on requesting from the court a case management or other order adopting an agreement to facilitate discovery by minimizing the risk of waiver of privilege or work-product protection. Such an agreement may include a provision allowing an initial examination of material without waiving any privilege or protection – sometimes known as a “quick peek” as well as a “claw back.”

Rules 33 and 34 on interrogatories and requests for production address the form in which ESI will be requested and produced, and Rule 34 provides a procedure if the parties are unable to agree on a production format. Requests for production may specify the form or forms in which ESI is to be produced. In the case of objection to the requested form or forms for producing ESI – or if no form was specified – the responding party may state the form it intends to use, but must produce the information in a form or forms in which it is ordinarily maintained or reasonably usable. A party need not produce the same ESI in more than one form.

Rule 37 on failures to comply with requests or provide discovery includes an amendment creating a “safe harbor” stating “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.” This rule does not relieve the need for a litigation hold. Moreover, “exceptional circumstances” is a high standard. A court may still order adjustments, such as the deposition of additional witnesses or propounding of additional interrogatories, to allow a party to learn the information otherwise lost as a result of routine IT operations.3

Rule 45 on subpoenas has been amended to conform to the other amendments dealing with ESI. A subpoena may specify the form of requested ESI, but a responding party need not provide information that is not “reasonably accessible” because of undue burden or cost. Where a subpoena does not specify the form of ESI, the producing party shall produce in the form in which it is ordinarily maintained or in a form that is reasonably usable. As with Rules 33 and 34 a producing party need not produce information in more than one form. The amendments to Rule 45 appear to extend the obligations regarding preservation and production of ESI to third-parties. This is a developing area of law, but suggests that companies not presently involved in federal litigation will still feel the impact of the Rule Amendments. Even before active litigation in

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federal court, or receipt of a subpoena, the Rule Amendments suggest that any entity that maintains, creates or stores data electronically (essentially everyone) should take the time to examine their data management practices to avoid being caught unprepared when litigation occurs.

FOOTNOTES

1 Committee on Rules of Practice & Procedure of the Judicial Conference of the United States, Summary of the Report of the Judicial Conference (2005), available at http://www.uscourts.gov/rules/ Reports/ST09-2005.pdf.

2 Id. at 22–23.

3 COMMITTEE ON RULES OF PRACTICE & PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, COMMITTEE’S NOTE TO THE PROPOSED AMENDMENTS TO FEDERAL RULE OF CIVIL PROCEDURE 37 (2006), available at http://www.uscourts.gov/rules/EDiscovery_w_Notes.pdf.

For more information, please contact:

Elleanor H. ChinPortland, Oregon(503) [email protected]

Lance KoonceNew York, New York(212) 603- [email protected]

Charlene A. BrownleeSeattle, Washington(206) [email protected]

This advisory is a publication of the litigation department of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

Copyright © 2006, Davis Wright Tremaine LLP.

Passports Required for All Air Travel to United States as of January 23, 2007; Includes U.S. Citizens Reentering the United States

December 5, 2006

The Departments of State and Homeland Security announced on November 22, 2006, that as part of the Western Hemisphere Travel Initiative (WHTI) citizens of the United States, Canada, Mexico, and Bermuda will be required to present a valid passport to enter the United States when arriving by air from any part of the Western Hemisphere (North, South, and Central America and associated islands) beginning January 23, 2007. The new rule applies to both adults and children. U.S. citizens returning directly from a U.S. territory are not considered to have left U.S. territory and will not need to present a passport. U.S. territories include the following: Guam, Puerto Rico, the U.S. Virgin Islands, American Samoa, Swains Island, and the Commonwealth of the Northern Mariana Islands. As early as January 2008, U.S. citizens traveling between the United States and Canada, Mexico, the Caribbean, and Bermuda by land or sea could be required to present a U.S. passport.

U.S. lawful permanent residents will continue to be required to present their permanent resident cards to enter the United States. Mexican citizens with valid border crossing cards will now be required to present a valid passport.

Those who apply for entry into the United States on or after January 23, 2007, but do not have passports will be referred for secondary inspection at the port of entry. In secondary inspection, Customs and Border Protection officers will evaluate any evidence of citizenship or identity the individual may have and will verify all information against available databases. For foreign nationals, a determination will be made at that time whether to admit the individual. Failure to present appropriate documentation could lead to extreme delays at the port of entry.

How This Affects You

U.S. citizens planning any international travel should apply for a U.S. passport. Information on obtaining a U.S. passport can be found at the State Department’s travel website at http://travel.state.gov. You also may call the U.S. National Passport Information Center at (877) 4USA­PPT; TDD/TTY: (888) 874­7793. Instructions for obtaining a passport are available through the U.S. Postal Service: http://www.usps.com/passport. The State Department has processes in place to assist U.S. citizens overseas to obtain emergency travel documentation for those with lost or stolen passports.

Foreign nationals should contact their respective governments to obtain passports.

About Morgan Lewis Resources Morgan Lewis Resources (MLR) is Morgan, Lewis & Bockius LLP’s innovative strategy for a rapidly changing legal universe—one in which corporate litigants insist on cost containment, demand state­of­ the­art technology and expect excellence. MLR meets these challenges by leveraging the intellectual capital of a premier law firm to provide cost­effective legal solutions in areas such as workplace training, corporate compliance, affirmative action and business immigration.

About Morgan, Lewis & Bockius LLP Morgan Lewis is a global law firm with more than 1,300 lawyers in 21 offices located in Beijing, Boston, Brussels, Chicago, Dallas, Frankfurt, Harrisburg, Irvine, London, Los Angeles, Miami, Minneapolis, New York, Palo Alto, Paris, Philadelphia, Pittsburgh, Princeton, San Francisco, Tokyo, and Washington, D.C. For more information about Morgan Lewis or its practices, please visit us online at www.morganlewis.com .

To learn more about Morgan Lewis Resources, please visit www.morganlewisresources.com.

This communication is provided as a general informational service to clients and friends of Morgan, Lewis & Bockius LLP. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does this message create

an attorney­client relationship. The enclosed materials may be considered advertising in some states.

© 2006 Morgan, Lewis & Bockius LLP. All Rights Reserved.