Volume 1, Spring 2006, Issue 1

Current Issues In the Field of Legal Technology Risk Management

As shareholders and regulators identify risk at every level of corporate operation, general counsels (GCs) see an increasing need for cooperation with in-house intellectual property (IP) counsel. GCs, in demanding higher accountability for a company’s IP holdings, require IP counsel to acquire multidisciplinary knowledge in the execution of an offensive risk management strategy that is pertinent to the company’s strategic operating plan. From IP counsels’ perspective, a comprehensive and successful legal risk management program inherently requires particular attention to the proper preparation of opinions and deliberate drafting of underlying IP rights. These responsibilities, however, should be assumed in combination with non-traditional forums of indemnity and cyberlaw that assist IP counsel in identifying the greatest risks inherent in the company’s IP operations. Integration of the IP counsel’s traditional means of risk mitigation across different practice areas grants IP counsel the opportunity for multidisciplinary cooperation as part of an overall legal risk management plan that preserves the maximum value of the IP portfolio.

In this article the author defines the civil right of disabled people to “Normal life.” His identification of this right is supported by Lord Slynn in the landmark case of the most superior court of the UK (the House of Lords) in the famous case of Halliday of 1997. Adopting a purposive and justice-oriented approach to this issue, Lord Slynn enunciates that a nation should strive to enable a disabled person lead as “normal life” as possible. His Lordship emphasized that “the yardstick of a “normal life” is important; it is a better approach than adopting the test as to whether something is ‘essential’ or ‘desirable’.

The legal right of disabled people to normal life (recognized by 45 countries who have passed protective legislation) is deemed by the author to be mother of all civil rights. Using this juristic premise as a touchstone, he has argued for design for all in this article. Focusing on the treatment of deaf people in jury service, for instance, he says, “The disabled people are only interested in fair recognition of their capabilities and wish to obviate the insult that that they are incapable of performing on a jury effectively.” He recognizes that, although not perfect, the US pro-disabled statues are best in the world. He invites other nations to learn from this regime in promulgating their own laws.

Corporate governance in Pakistan has significantly improved over the past few years although much remains to be done. In 2002, the Securities and Exchange Commission of Pakistan promulgated Pakistan’s first Code of Corporate Governance. This Code, along with the Companies Ordinance of 1984, forms the legal basis for corporate governance in the country. The majority of corporations in Pakistan are family-controlled. Although there is a trend towards establishing good corporate governance, most of these corporations still prefer to retain their family structure that disfavors the minority investor. Moreover, the equity culture has been slow to develop, the market remains shallow and is skewed towards a few major companies. The Code is a “comply or explain” regime that applies only to listed companies. Listed companies are encouraged to have independent directors but are not required to do so. Many unlisted companies have voluntarily complied with the Code to become more successful. Some listed companies, however, have de-listed after the Code came into effect because they found the new requirements burdensome. State-owned enterprises do not comply with the Code. A corporate governance code targeted specifically towards these enterprises was scheduled to be released in Summer 2006. The government is aggressively privatizing state-owned enterprises, including some major companies such as Pakistan Telecommunications Ltd. that now has a major foreign shareholder. Unfortunately, obstacles to good corporate governance remain. Some of these include the lack of penal provisions in the Code, a passive financial press, the lack of active monitoring by the Securities and Exchange Commission of Pakistan, an overburdened court system, inadequate remuneration of directors, and a fragmented corporate governance law. However, several factors demonstrate that corporate governance is taking hold in Pakistan –minority shareholders may exit at a favorable share price during a merger, education and training in corporate governance is improving, the government is supporting corporate governance initiatives and many companies are voluntarily complying with the Code. Furthermore, the New York Convention has been ratified and arbitration is increasingly used as a method of settling disputes. Proactive changes in the Code as demonstrated by an upcoming corporate governance code for state-owned enterprises and anti-corruption measures are also encouraging prospects for corporate governance.

With the passage of the Internet Gambling Ban of 2006, Congress envisioned a complete prohibition on online poker and online gambling in general. Instead, this hastily passed law has created more confusion than it has cured. By failing to acknowledge jurisdictional problems associated with this law, Congress has left several loopholes that allow online gambling to continue nearly unabated. Moreover, by focusing on prohibition rather than regulation, the government forgoes many of the benefits of regulating the online poker industry: generating tax revenue, protecting social policy, and preserving state autonomy. Last, the U.S. government, by failing to distinguish poker from other forms of gambling, neglects to take into account the skill factors involved in the game.

In the last two years, security breaches have resulted in the loss of hundreds of thousands of personal data records, and data breaches remain at the forefront of both the corporate and legislative debate. Following California ’s early lead, many states enacted privacy and breach notification legislation. But, with five bills currently under consideration by Congress, the landscape governing these issues remains uncertain. With no federal or unified security breach notification law in place, businesses must be aware of the various state breach notification laws when analyzing their notice obligations following a security incident. Security breaches can be costly. The FTC is aggressively investigating and sanctioning companies for lapses in security involving customer information. Based on the current state laws it is clear that businesses should, at the very least, ensure that all of its customers’ personal or sensitive information is encrypted. Such actions will minimize a business’ obligations to notify affected parties or law enforcement agencies in the event that a data breach occurs. Additionally, companies must consider liability insurance to protect themselves against privacy-related risks and data compliance regulations. In this article Dallas-based attorney and network security expert Julie Machal-Fulks defines pending legislation and outlines proactive guidelines to help enterprises manage security, minimize risk, and minimize potential liability.