Search results

This paper aims to convict the offender of real concurrence offenses of the most severe offense and applying the most severe penalty will result in no distinction between the perpetrator who conducted more than one act and the one who conducted only one act. This approach deviates from the purpose of criminal law. The real concurrence of offenses means several offenses, the perpetrator’s dangerousness and culpability are much higher than the perpetrator who commits just one crime, so combined punishments for several offenses should be applied to the real concurrence of offenses.

If the depositors are acquaintances or relatives and friends, the relationship can be explained by “personality trust.” If the depositors are strangers, but they have complied with their duties of care, the deposit relationship can be explained by “system trust.”

The real concurrence of offenses means several offenses, the perpetrator’s dangerousness and culpability are much higher than the perpetrator who commits just one crime, so combined punishments for several offenses should be applied to the real concurrence of offenses.

The principle of choosing the most severe punishment applied to the real concurrence of offense should be abolished. As the perpetrator separately conducts two acts at different times, these acts infringe on different legal interests. Although these acts exist closely, the authors cannot deny that these acts constitute more than one offense.

Knight's Industrial Law Reports goes into a new style and format as Managerial Law This issue of KILR is restyled Managerial Law and it now appears on a continuous updating basis rather than as a monthly routine affair.

The Howard Shuttering Contractors case throws considerable light on the importance which the tribunals attach to warnings before dismissing an employee. In this case the tribunal took great pains to interpret the intention of the parties to the different site agreements, and it came to the conclusion that the agreed procedure was not followed. One other matter, which must be particularly noted by employers, is that where a final warning is required, this final warning must be “a warning”, and not the actual dismissal. So that where, for example, three warnings are to be given, the third must be a “warning”. It is after the employee has misconducted himself thereafter that the employer may dismiss.

A distinction must be drawn between a dismissal on the one hand, and on the other a repudiation of a contract of employment as a result of a breach of a fundamental term of that contract. When such a repudiation has been accepted by the innocent party then a termination of employment takes place. Such termination does not constitute dismissal (see London v. James Laidlaw & Sons Ltd (1974) IRLR 136 and Gannon v. J. C. Firth (1976) IRLR 415 EAT).

On October 26, 2004, the Securities and Exchange Commission (the “Commission” or the “SEC”) adopted a new rule and related amendments requiring, among other things, that hedge fund managers register with the SEC under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) by February 1, 2006. In this article, we refer to the totality of the recent rulemaking as the “new rules.” The new rules and a lengthy interpretive release (the “Adopting Release”) were made available to the public on December 2, 2004.The new rules only slightly modify the text of the proposed rules published by the SEC on July 20, 2004. We will refer to the July 20, 2004 rules as the “proposed rules.” The proposed rules, which were opposed by two of the five SEC commissioners at the time they were announced, provoked a loud outcry and strong opposition. According to the Adopting Release, the SEC received 161 comment letters from investors, hedge fund managers, mutual fund managers, law firms, and others. Of these, only 36 supported the proposed rules, 83 argued against them, and the remainder presented a neutral view. The objections included “concerns about the costs of compliance under the new rule[s], questions about [SEC] effectiveness in preventing hedge fund fraud, and the potential intrusiveness of [SEC] oversight of hedge fund managers.”

A pooled income fund (PIF) is one of the methods created under the 1969 Tax Reform Act whereby a taxpayer may make a tax‐deductible remainder gift to a charitable organization. The fund, established by a charitable organization to receive irrevocable gifts from at least two donors, pays current income to the individual beneficiaries for life, but at the termination of each income interest, the allocable principal must revert permanently to the charitable organization. In recent years, a number of PIFs have been offered to the public by charitable organizations through broker‐dealers or related entities. There are numerous securities‐law issues implicated by the sales of these PIFs, including: (i) whether broker‐dealers may solicit donations to such funds and receive compensation for their solicitations; (ii) the effect of the broker‐dealers’ solicitation and receipt of compensation have on securities registration for the PIF or units offered therein under the Securities Act of 1933, the Securities Exchange Act of 1934, or the Investment Company Act of 1940; (iii) whether staff and persons affiliated with the sponsoring charity, including parties assisting them in the marketing of such pooled income funds, also should be permitted to solicit donations; (iv) whether such charities or persons, or parties assisting them in the marketing of such pooled income funds, then should be required to register as broker‐dealers; (v) what securities licenses may be required of the aforementioned parties; and (vi) whether there are ways to design the manner in which third parties other than broker dealers are compensated to resolve any potential issues arising from answers to the previous questions. This article first sets forth the applicable law involved in the analysis and then attempts to answer each of the issues presented above.

In order to succeed in an action under the Equal Pay Act 1970, should the woman and the man be employed by the same employer on like work at the same time or would the woman still be covered by the Act if she were employed on like work in succession to the man? This is the question which had to be solved in Macarthys Ltd v. Smith. Unfortunately it was not. Their Lordships interpreted the relevant section in different ways and since Article 119 of the Treaty of Rome was also subject to different interpretations, the case has been referred to the European Court of Justice.

Supporting the international fight against drug trafficking and serious crime is hard to contest; it is like being in favour of family values. Likewise, therefore, the fight against money laundering, ie burying or disguising the financial proceeds of those activities, including helping someone else to do so. The real and potential long‐term damage to societies, honest government, the rule of law and sound economies is now well recognised. But, on closer inspection, the route mapped out by the international community to achieve the laudable goal of putting serious criminals (and those who assist them) out of business by attacking the financial jugular causes a number of political, economic and legal tensions.

On October 26, 2004 the Securities and Exchange Commission (the “SEC”) adopted new rules and rule amendments under the Investment Advisers Act of 1940 (the “Advisers Act”) that will require most hedge fund managers to register with the SEC as investment advisers by February 1, 2006. The actions taken by the SEC will necessitate that hedge fund managers begin preparing for SEC registration at least four to six months in advance of registration. In light of these new rules, this article summarizes: The significant provisions of the Advisers Act that hedge fund managers will need to become familiar with; The SEC registration process that a hedge fund adviser will have to follow; The SEC inspection program and some practical tips that hedge fund advisers should consider implementing. Because the regulatory framework imposes a variety of obligations and prohibitions on hedge fund managers, who, up until now, have operated without significant regulatory oversight, we recommend that fund managers who are likely to become subject to the registration rules should, well in advance of the February 1, 2006 registration deadline, familiarize themselves with the legal and operational changes that will affect them and assemble the information they will need to commence and complete the registration process. This article is designed to introduce fund managers to that framework.

This paper aims to explain the rules recently adopted by the Securities and Exchange Commission under the provisions of the Dodd‐Frank Wall Street Reform and Consumer Protection Act relating to the increased asset threshold for federal registration as an investment adviser, the new exemptions from investment adviser registration (including the exclusion of “family offices” from the definition of an investment adviser), the enhanced reporting obligations imposed on registered and certain exempt advisers, and the definition of a “qualified client” for purposes of applying the performance fee rule under the Investment Advisers Act.

This paper summarizes the principal content of the Rules and explains their application to investment advisers, focusing in particular on analyzing the impact of the Rules on US and non‐US advisers to private funds.

The Rules clarify important aspects of the Dodd‐Frank amendments to the Investment Advisers Act and expand the scope of certain registration exemptions as they relate to foreign advisers. The Rules also expand significantly the family office exclusion from investment adviser status.

The paper provides expert guidance from experienced financial services lawyers.