Intellectual Property/International Law: European Parliament Calls on EC to Propose EU-Wide IPR Strategy

On September 22, the European Parliament, by a vote of 328 to 245, approved a report on intellectual property rights (IPR), calling on the European Commission (EC) "to propose a comprehensive strategy on IPR which will remove obstacles to creating a single market in the online environment and adapt the European legislative framework in the field of IPR to current trends in society as well as technical developments." Members of the European Parliament (MEP) characterized the ""enormous growth of unauthorised file sharing of copyrighted works [as] an increasing problem for the European economy in terms of job opportunities and revenues for the industry as well as for government." They also asked the EC "to think broadly about methods of facilitating industry's access to the digital market without geographical borders by addressing urgently the issue of multi-territory licences and the harmonisation of legislation on copyright," adding that a pan-European licensing system should provide consumers with "access to the widest possible choice of content and not at the expense of European local repertoire."

Constitutional Law: New Yorker Article on Justice Breyer

The September 27 issue of the New Yorker featured an article by Jeffrey Toobin on U.S. Supreme Court Justice Stephen Breyer and his work on the Court. An abstract of the article noted that "as a scholar and a judge, Breyer has been most interested in the less glamorous field of administrative law, which is now, suddenly, at the center of the Court’s agenda." New Yorker subscribers may read the full text of the article online.

Antitrust and Trade Regulation/International Law: U.K. Competition Commission and OFT Issue Joint Merger Guidelines

On September 16, the United Kingdom Competition Commission (CC) and the Office of Fair Trading (OFT) jointly issued Merger Assessment Guidelines. This document, which supersedes various prior OFT and CC guidelines, "explains the approach of the OFT when considering whether or not to refer a merger to the CC for further investigation and the approach of the CC when exploring more extensively the statutory questions posed in merger references. It highlights the differences of emphasis, as well as the commonalities, between the approaches of the OFT and the CC (‘the Authorities’)."

The new Guidelines consist of seven parts: (1) explanatory notes and an outline of the UK merger regime; (2) overarching questions that the OFT and the CC must consider in conducting reviews of mergers; (3) an explanation of what is meant by a "relevant merger situation"; (4) an explanation of the Authorities’ approach to the concept of a "substantial
lessening of competition’ (SLC) and outlines the notions of "theories of harm" and the "counterfactual"; (5) a description of the analytical approach and methodologies applied by the Authorities in considering the SLC test; (6) guidance on public interest cases; and (7) additional guidance relevant to the UK merger control regime.

Ethics: European Court of Justice Affirms Scope of Legal Professional Privilege

On September 14, the European Court of Justice held, in Akzo Nobel Chemicals v. European Commission, No. C-550/O7 P, that the legal professional privilege did not apply to e-mail communications between a corporate oficer and a corporate in-house lawyer. The decision stemmed from a 2003 investigation by Commission oficials into alleged anticompetitive practices involving two companies established in the United Kingdom, Akzo Nobel Chemicals Ltd (Akzo) and Akcros Chemicals Ltd (Akcros). As part of that investigation, Commission officials took copies of two emails between Akcros’s general manager and Akzo’s coordinator for competition law, who was a member of the Netherlands bar and, at the time, a member of Akzo’s legal department.

The European Court of Justice rejected the companies' argument that the emails came within the scope of the legal professional privilege. In its 1982 decision in AM & S Europe v Commission, [1982] ECR 1575, the Court had held that the confidentiality of written communications between lawyers and clients should be protected at Community level, but was subject to two cumulative conditions: (1) that the exchange with the lawyer must be connected to "the client’s rights of defence"; and (2) that "the exchange must emanate from 'independent lawyers', that is to say ‘lawyers who are not bound to the client by a relationship of employment’." With regard to the second condition, the Court had also held, in AM & S Europe, "that the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs. The counterpart to that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest. The Court also held . . . that such a conception reflects the legal traditions common to the Member States and is also to be found in the legal order of the European Union, as is demonstrated by the provisions of Article 19 of the Statute of the Court of Justice."

In the present case, the Court found "that the requirement of independence means the absence of any employment relationship between the lawyer and his client, so that legal professional privilege does not cover exchanges within a company or group with in-house lawyers." Since it found, "both from the in-house lawyer’s economic dependence and the close ties with his employer, that he does not enjoy a level of professional independence comparable to that of an external lawyer," the Court concluded that the lower court had correctly applied the second condition for the legal professional privilege set forth in AM & S Europe.

Securities/Commodities: FT Special Report on Commodities

For those interested in commodities issues, the Financial Times has put out a special report on the subject with a variety of articles and analyses.

Antitrust/International Law: Canadian Competition Bureau Plans Consultations on Revising Merger Enforcement Guidelines

On September 7, the Canadian Competition Bureau announced that "it will hold a series of roundtables to explore the merits of revising the Merger Enforcement Guidelines." Those Guidelines, which were issued in 2004, set out the framework that the Competition Bureau uses to evaluate the potential competitive effects of mergers. The announcement also stated that "[t]he purpose of the roundtables will be to assess whether the guidelines accurately reflect current merger review practices at the Bureau and the potential impact of the recent publication of the revised Horizontal Merger Guidelines by the antitrust authorities in the United States, as well as other legal and economic developments." This announcement follows closely on the heels of the recent issuance of revised merger guidelines by the U.S. Department of Justice and the Federal Trade Commission. (See the August 19 N&C post for details.)

Environment/Energy: BP Issues Internal Investigations Report on Deepwater Horizon Accident

On September 8, BP issued its internal investigations report into the accident on the Deepwater Horizon rig in the Gulf of Mexico on 20 April 20. In brief, BP stated that "[t]he investigation found that no single factor caused the Macondo well tragedy. Rather, a sequence of failures involving a number of different parties led to the explosion and fire which killed 11 people and caused widespread pollution in the Gulf of Mexico earlier this year." The BP webpage on the report includes links to the executive summary, the full text of the report, presentation slides, and even a 29-minute video about the investigation.