House In Poznan / Neostudio Architects

first_img “COPY” CopyHouses•Poznan, Poland CopyAbout this officeNeostudio ArchitekciOfficeFollowProductsWoodConcrete#TagsProjectsBuilt ProjectsSelected ProjectsResidential ArchitectureHousesDabasPoznańWoodHouses3D ModelingPoznanPolandPublished on October 18, 2010Cite: “House In Poznan / Neostudio Architects” 18 Oct 2010. ArchDaily. Accessed 12 Jun 2021. ISSN 0719-8884Read commentsBrowse the CatalogPanels / Prefabricated AssembliesTechnowoodGRP Siding Façade SystemGlassMitrexSolar PanelsMetal PanelsAurubisCopper Alloy: Nordic BrassWoodParklex International S.L.Wood cladding – FacadeSignage / Display SystemsGoppionDisplay Case – Qd-ClassSkylightsLAMILUXGlass Skylight FE PassivhausStonesCosentinoDekton Surfaces – Cap Ferrat BuildingStonesNeolithSintered Stone – Strata Argentum – Classtone CollectionAcousticSchöckStaircase Insulation – Tronsole®CeramicsTerrealCustom Shape Terracotta CladdingSeatingInterstuhlPillows – HUBPartitionsBuzzispacePrivacy Booth – BuzziRingMore products »Read commentsSave想阅读文章的中文版本吗?波兹南住宅 / Neostudio Architects是否翻译成中文现有为你所在地区特制的网站?想浏览ArchDaily中国吗?Take me there »✖You’ve started following your first account!Did you know?You’ll now receive updates based on what you follow! Personalize your stream and start following your favorite authors, offices and users.Go to my stream ShareFacebookTwitterPinterestWhatsappMailOrhttps://www.archdaily.com/82209/house-in-poznan-neostudio-architects Clipboard “COPY” Poland Save this picture!© Pawe≥ åwierkowski+ 32 Share ShareFacebookTwitterPinterestWhatsappMailOrhttps://www.archdaily.com/82209/house-in-poznan-neostudio-architects Clipboard Architects: Neostudio Architekci Area Area of this architecture project Area: 224 m² Year Completion year of this architecture project 2008 ArchDaily Year: Projects House In Poznan / Neostudio ArchitectsSave this projectSaveHouse In Poznan / Neostudio Architects Houses Photographs House In Poznan / Neostudio Architects Photographs: Pawe≥ åwierkowskiText description provided by the architects. This project is located on a picturesque plot that originally was a home for seed drying installation of Agricultural University – and with its magnificent Acacia trees plantation and natural splendor was a design challenge for us. Save this picture!© Pawe≥ åwierkowskiRecommended ProductsDoorsStudcoAccess Panels – AccessDorWoodLunawoodThermowood FacadesDoorsSky-FrameInsulated Sliding Doors – Sky-Frame ArcDoorsdormakabaEntrance Doors – Revolving Door 4000 SeriesThe main task was to create a new structure that would accommodate a spacious single story living space with a kitchen and a dining area. Existing building was to be refurbished to house a garage and storage functions in the ground floor and bedrooms in the upper level. New structure is attached to the existing one with the staircase. Save this picture!© Pawe≥ åwierkowskiThe entire building is clearly divided into two volumes, the old one with its historical charm that shows its primary usage and the addition that is a clean contemporary form. Save this picture!© Pawe≥ åwierkowskiUsed materials and large windows in the living space connect with the surrounding scenery and the form seems to be dissolved in the nature.Save this picture!© Pawe≥ åwierkowskiProject gallerySee allShow lessAutodesk AutoCAD for Mac video tutorialsArticlesMONU Magazine New Issue: Most Valuable UrbanismArticles Sharelast_img read more

Role of Irish donor advised funds highlighted

first_imgRole of Irish donor advised funds highlighted 237 total views, 1 views today About Howard Lake Howard Lake is a digital fundraising entrepreneur. Publisher of UK Fundraising, the world’s first web resource for professional fundraisers, since 1994. Trainer and consultant in digital fundraising. Founder of Fundraising Camp and co-founder of GoodJobs.org.uk. Researching massive growth in giving. AddThis Sharing ButtonsShare to TwitterTwitterShare to FacebookFacebookShare to LinkedInLinkedInShare to EmailEmailShare to WhatsAppWhatsAppShare to MessengerMessengerShare to MoreAddThis5 Tagged with: community foundations donor advised funds Ireland The Community Foundation for Ireland is running a six week campaign to profile some of their anonymous ‘donor advised funds.’The ‘Unsung Heroes’ campaign will highlight donor advised funds that are creating social impact in Ireland. The campaign, which runs from 9th April to 19th May, has started by showcasing the Farmleigh Fund, an anonymous family fund established in 2016 as a term fund at the Foundation.The Farmleigh Fund will spend down the total amount they have allocated to the fund over the next 10 years. The fund has committed to providing €350,000 per annum in grants to the community and voluntary sector in Ireland.The Farmleigh Fund was set up when the family received a windfall gain after the sale of a company. The objective of the Fund is to make a sustainable improvement in people’s lives in Ireland with a particular interest in supporting advocacy and progressive change in public policy and legislation.The Fund has invested in change in the Children’s Rights Alliance so that they can continue to produce their Annual Report Card which tracks policy delivery for children and young people in Ireland. Similarly, the fund has supported the work of the Irish Penal Reform Trust to examine human rights conditions of prisoners in Ireland.The Foundation says the fund is a prime example of how philanthropy, when utilised at its best, can support strategic initiatives in targeted areas to help in addressing selected societal challenges. According to the Foundation, the spend down nature of the term fund allows the donors to support a relatively small number of targeted initiatives and to provide them with multi-annual funding to really delve into systemic issues and create lasting change.Donor Advised Funds are a charitable giving vehicle administered by a third party and created for the purpose of managing charitable donations on behalf of an organisation, family, or individual. Donor advised funds held by the Community Foundation for Ireland include those which spend down their money while others create a permanent endowment. Advertisement 238 total views, 2 views today AddThis Sharing ButtonsShare to TwitterTwitterShare to FacebookFacebookShare to LinkedInLinkedInShare to EmailEmailShare to WhatsAppWhatsAppShare to MessengerMessengerShare to MoreAddThis5 Howard Lake | 12 April 2018 | Newslast_img read more

Call for major amendments to new criminal code that threatens press freedom

first_img News April 28, 2021 Find out more TurkeyEurope – Central Asia News April 2, 2021 Find out more Reporters Without Borders says it shares the concerns of Turkish journalists over a new criminal code to come into force on 1st June some articles of which represent a serious threat to press freedom despite several amendments. Organisation Journalists threatened with imprisonment under Turkey’s terrorism law Help by sharing this information Several articles of the new code are particularly perilous. Article 305 which punishes acts that go against “fundamental national interests” by prison sentences of three to ten years, threatens journalists and the right of the public to be informed. Any claim to do with the “Armenian genocide” or “withdrawal of Turkish armed forces in Cyprus” would be considered as against “fundamental national interests”. Dozens of journalists have been imprisoned in the past for having simply expressed their opinion on this type of subject. Turkish deputies did nevertheless agree to remove paragraph 2 of the article which set out a 50 % increase in sentences if the offence was committed via the press.Article 301 that is to replace 159 has been used in the past to severely punish any criticism of parliament, the justice system or the security forces. It will be termed in future “Humiliation of Turkish identity, the Republic, state institutions and bodies”. It will allow wide scope for interpretation and threaten anyone criticising Turkish identity, the state or parliament with a prison sentence of six months to three years. Any person who attacks the government, justice system or the security forces moreover faces six months to two years in prison.Article 285 threatens with four and half years in prison anyone “violating the confidentiality of an investigation”. This could be a serious threat to the right of journalists to protect their sources.Article 277 punishes anyone trying to “sway the justice system” with two to four years in prison and potentially puts in danger journalists covering court proceedings.Under Article 267 of the new code, defamation in the press with the aim of exposing someone to a judicial investigation is liable to a one to four-year prison sentence.Article 216, formerly 312, punishes with one to three years in prison “deliberate incitement of a section of the population to hatred and hostility through discrimination on the basis of race, region or membership of a religious group, against another section of the population” that causes “a clear and direct danger to the public” (paragraph 1).”Humiliation of a section of the population due to social, religious, sexual or regional differences” is liable to a sentence of six months to one year in prison (paragraph 2). “Overt humiliation of a person because of their religious principles is liable to six months to one year in prison if the offence threatens social peace” (Paragraph 3). This “humiliation”, a very vague legal concept, capable of being interpreted very widely by jurisprudence, directly threatens freedom of expression both for journalists and for the general public.This is not an exhaustive list. Turkish journalists and press freedom organisations see parliamentary amendments drawn up ahead of 1st June to the version of the code as it was to have been applied on 1st April, as very inadequate. They consider that only six of the 20 problematic points have been revised Recep Tayyip Erdogan’s government. to go further Newscenter_img May 25, 2005 – Updated on January 20, 2016 Call for major amendments to new criminal code that threatens press freedom News Follow the news on Turkey RSF_en TurkeyEurope – Central Asia April 2, 2021 Find out more Turkey’s never-ending judicial persecution of former newspaper editor Reporters Without Borders said it shared the concerns of Turkish journalists over threats to press freedom from a new criminal law that still needed major amendments before coming into force on 1st June..Despite revisions voted by parliament after it was adjourned on 31 March 2005 following strong media protests, the organisation repeated its call for the removal of prison sentences for press offences.”Far from bringing Turkish law into line with European law on freedom of expression, some articles of the code on the contrary would facilitate arbitrary legal action against journalists and entailing a climate of self-censorship damaging to press freedom”, it said. Human rights groups warns European leaders before Turkey summit Receive email alertslast_img read more

Call to level Opera Centre site for carpark

first_imgNewsLocal NewsCall to level Opera Centre site for carparkBy admin – July 15, 2010 451 WITH the future of the proposed Opera Centre very much up in the air, businessman, Tony Connolly, is recommending that parts of the site be utilised for ground level carparking.Sign up for the weekly Limerick Post newsletter Sign Up He recommended to a meeting of the city council’s Economic Policy Development and Future Planning Committee, that locating a major ground level carparking facility in the area would be “very attractive and convenient for a lot of people.“You’d be surprised how many do not like multi-storey indoor car parks, which can be difficult to manoeuvre, and people coming into the city for shopping with families would opt for ground level parking,” suggested Mr ConnollyCllr John Gilligan hinted it would “cost almost nothing” to convert the United Drug building on Charlotte Quay to a carparking facility.Director of services, Oliver O’Loughlin, revealed the city council is in contact with the owners of empty retail units that comprise the Opera Centre layout.“We could talk to them about car parking there but they own the properties and it would be up to them. We have written to NAMA, but they say they are only at the very early stages with regard to the future of the Opera Centre. It will take a year before they get to making final decisions about it”.Confirming that the council has been working closely with Shannon Development on ways to attract people into the city, Mr O’Loughlin said:“With the tunnel opening this month, there will be considerably less traffic on the city streets and we will be able to enhance O’Connell Street and start work on upgrading William Street – we have other structural plans as well, that will benefit the city”.Cllr Joe Leddin called on the committee chairman, Cllr Diarmuid Scully to invite in Shannon Development to City Hall to “get a greater appreciation of their plans for the city, going forward,” and Cllr Gerry McLoughlin said the opportunity should also be used to “quiz SFADCO on what they are doing to open up King John’s Castle for greater business”.It was agreed that an invitation will be sent to Shannon Development. Linkedin Twitter Email Facebookcenter_img WhatsApp Print Advertisement Previous articleMunster lads unlucky against Premier League big boysNext articlePut the brakes on bikers, plead Moyross residents adminlast_img read more

A To Z Of The Insolvency And Bankruptcy Code | A Beginner’s Guide

first_imgColumnsA To Z Of The Insolvency And Bankruptcy Code | A Beginner’s Guide Bharat Chugh & Advaya Hari Singh29 May 2020 11:57 PMShare This – xSpoiler alert here: the title of this article is misleading. This is, by no means, a complete alpha to omega of the Insolvency and Bankruptcy Code (IBC) and we will merely be skimming at its surface. We call it the ‘A to Z of IBC’ because what we have done here is – arrange the most fundamental principles of IBC law alphabetically, like a dictionary of sorts. Given the…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginSpoiler alert here: the title of this article is misleading. This is, by no means, a complete alpha to omega of the Insolvency and Bankruptcy Code (IBC) and we will merely be skimming at its surface. We call it the ‘A to Z of IBC’ because what we have done here is – arrange the most fundamental principles of IBC law alphabetically, like a dictionary of sorts. Given the raised threshold to initiate insolvency and the proposed suspension of provisions which empower creditors and the corporate debtor (CD) to do so, it is likely that IBC is going to be on hiatus with no new insolvency resolutions to facilitate and with the pending ones on the back-burner. This gives us the perfect opportunity to take a step back to the basics and analyse the IBC as it was, as it is and as it is likely to be. In trying to do so much in a short series, we are mindful that we will be attracting the wrath of IBC enthusiasts who would complain that we are totally missing nuance and that our analysis is too basic, reductive and simplistic and it does not have enough academic rigor; we’d equally be trashed by those just starting out with IBC of being too convoluted. Totally mindful of this risk, we march on—trying to unravel the IBC and bring about some method to all this madness, with so much happening with IBC, all the time, and on multiple fronts— legislative, National Company Law Tribunal’s (NCLT) and the Courts. Through this column, which is the first in a three-part series, we will try to give a brief overview of the primary features and actors in the IBC game and a sneak peek into the new and latest in IBC and the challenges that lie ahead. Since we all love lists, we walk you through these concepts alphabetically. But before we dive deep, here are a few words in the nature of a general preface to this path-breaking piece of legislation called the IBC: Preface The Indian Economy over the past few decades, to borrow the expression of Arvind Subramanium (the former Chief Economic Advisor), has journeyed “from socialism with limited entry to capitalism without exit.” Over the last few decades, governments have not exactly rolled out red carpets for the setting up of new businesses and industry, and an exit from the Chakravyuha of corporate existence was also ridden with a massive amount of red tape. The legal regime governing winding up prior to the IBC, was, to put it brusquely, as sick as the companies it sought to cure. The IBC sets out to change all of that. It endeavours to make exit easy and to preserve maximum value for all the stakeholders involved in the winding up of a company. Despite inheriting some very very sick zombie firms from the earlier legal regime, IBC, in a very short span, has shown great results. Debtor’s paradise is now lost, as Justice Nariman beautifully puts it, and decisions in relation to a company under insolvency are taken by expert Resolution Professionals (RP) and Committee of Creditors (CoC), whose primacy has been established recently by way of amendments and progressive judicial decision making. The shift from ‘debtors in possession’ to ‘creditors in possession’ helps safeguard and preserve a company’s value and prevents mismanagement and asset dissipation, both of which have been endemic in the Indian scenario, especially as a company goes into the twilight zone. We have also witnessed great interest in revival of insolvent companies, and liquidation is gradually being seen, and rightly so, as the very last resort. All in all, the law proves that destruction can be creative and for the larger good. With this general philosophy of this law in mind, let’s get cracking on the specifics: A – Adjudicating Authority (AA) This refers to the NCLTs which have replaced Company Law Boards, as the principal adjudication forum for all matters corporate. An NCLT, as the AA, admits and sets the ball rolling on a Corporate Insolvency Resolution Process (CIRP) by appointment of an Interim Resolution Professional and announcing a moratorium, which, for those who arrived late, is an embargo against institution of any suits/proceedings against the CD undergoing a CIRP. An AA also reviews and approves the decisions taken by the CoC in relation to the revival of the company, acceptance of resolution plans, etc. Currently, there are 16 NCLTs operating as AAs and two National Company Law Appellate Tribunals (NCLAT), one at New Delhi and the other one recently constituted at Chennai. The newly-constituted NCLAT at Chennai will hear appeals from NCLTs which have jurisdiction over Karnataka, Tamil Nadu, Kerala, Andhra Pradesh, Telangana, Lakshadweep and Puducherry. The New Delhi Bench will continue to hear appeals from NCLTs of other remaining jurisdictions. Further appeals from the NCLATs lie to the Supreme Court, provided they involve a question of law. Generally, on the working of the AAs, as someone wise said, IBC has in a lot of ways been a victim of its own success, due to which NCLTs are extremely overburdened and almost bursting at the seams; we certainly need more of them. In this context, the constitution of a new NCLAT bench at Chennai should go a long way in helping ease the burden on the docket of the NCLAT at New Delhi and further the IBC’s objective of speedy recovery. B – Bankruptcy Simply speaking, insolvency is a financial state of being—one that is reached when one is unable to pay off his/her debts on time. Following this is bankruptcy, which, on the other hand, refers to the legal process that serves the purpose of resolving the issue of insolvency. IBC deals with both. C – Committee of Creditors The most significant change brought about by the IBC and its central philosophy, is the shift from ‘debtors in possession’ to ‘creditors in control’ in relation to an insolvent company. In other words, when a company defaults on its debt, control of the company shifts from the erstwhile management (who have led the company to where it is) to a CoC. This is for good reason, as creditors have the maximum amount of skin in the game and are the most vital stakeholders in the process. A CoC, therefore, is the primary decision maker of the fate of the company. Amongst the many functions of CoC, the primary are: Approving the appointment of a RP; Approving a Resolution Plan (more on resolution plans a little later);Approving interim finance for the company, to ensure that its basic needs are met during the process of insolvency and the functioning of the company does not come to a grinding halt. The question of primacy of CoC’s decisions has been a source of great controversy. This controversy is the most heated in situations where the CoC decides to approve one resolution plan over the other, and especially when it caters to various creditors and stakeholders of the company. Under the scheme of IBC, it is essentially left to the wisdom of the CoC to decide as to which plan best serves the interests of the company. Though it is also correct that eventually it is the AA/NCLT which finally “approves” or “rejects” a resolution plan. This apparent dichotomy has led to a fight for primacy between CoC and NCLT and great controversy on the extent to which the AA/NCLT can second guess the CoC’s decision; a decision which is essentially commercial in nature and not a legal one. We grapple with this question later in the article. Also, C – Cross Border Insolvency Picture this, ‘X’ company goes into insolvency with assets spread across the world and pending claims from various lenders. On the company becoming unable to pay off its debts, lenders in country ‘A’ initiate an insolvency process where the Court appoints an administrator to deal with the company’s assets. Simultaneously, lenders of the company in country ‘B’, let’s say India, also initiate an insolvency process where the Court kickstarts the CIRP and appoints an Interim Resolution Professional to begin the process. This kind of situation gives rise to many questions, none of which are too easy to answer: Can these two insolvency processes proceed simultaneously? Which administrator/RP is to take the lead, constitute the CoC and take control of the assets of the CD? Which law will govern the distribution of the proceeds of a resolution plan? Is there a way to consolidate these proceedings for an effective and complete resolution? The IBC, prima facie, does not address these questions comprehensively but instead seeks to promote an ad-hoc framework of cross-border insolvency through Sections 234 and 235, possibly to retain flexibility and since there’s no one size fits all approach possible in such circumstances. These provisions envisage a system to be created through bilateral agreements with foreign countries and provides for an option of sending letters of request to foreign courts for information on the CD’s assets which are located abroad. The problem with the current position is that it involves lengthy negotiations with individual countries to conclude treaties/agreements which will, more often than not, have different terms and procedures. This position is far from ideal and renders cross-border insolvency processes- agreement-dependent, which comes at the cost of consistency and certainty. It was precisely this position that prompted the Insolvency Law Committee in 2018 to recommend the adoption of the UNCITRAL Model Law on Cross-Border Insolvency, 1997 as a separate part in the IBC.[1] Adoption of the Model Law will enable India to align its insolvency laws with the internationally accepted standards. Presently, the Government is still considering amendments to the IBC to provide for cross-border insolvency but this gap in the law has not prevented the NCLAT from allowing a cross-border insolvency process for Jet Airways. In an order given in September, 2019, the NCLAT approved a ‘Cross Border Insolvency Protocol’ entered into between the Dutch Administrator of the company and its RP in India.[2] The Protocol aims to promote a coordinated insolvency process for Jet Airways by enabling coordination, communication, information sharing between the CoC, RP and the Dutch Administrator. This makes Jet Airways the first Indian company to undergo a cross-border insolvency treatment. In another decision, NCLT, Mumbai has allowed the inclusion of Videocon’s foreign assets and properties in its CIRP in India, also illustrating the fact that the lack of a legal framework on cross-border insolvency is not deterring the Tribunals from endorsing its principles.[3] With everyone still celebrating this progressive decision by the NCLAT, a decision of the US Bankruptcy Court for the Delaware District has provided another shot in the arm for the cross-border insolvency regime for Indian companies. On November 4, 2019, a Delaware Court recognised the insolvency case of SBI v. SEL Manufacturing Company Limited as ‘foreign main proceeding.’ As per the UNCITRAL Model Law, on which the US insolvency law is modeled, a ‘foreign main proceeding’ is a proceeding which takes place in the centre of main interest of the debtor which is the place of registration or primary operations of the debtor. The recognition will result in an automatic stay of any proceedings against the CD in US and bar any transfer of its assets. It will also empower the RP to undertake discovery into the CD’s assets and to manage its estate, including the sale of any assets. This decision, coupled with the recommendations of the Insolvency Law Committee, should prompt the Government of India to move swiftly in introducing a cross-border insolvency legislative framework. However, it appears that the Government is not rushing into a legal framework without adequately studying the issues involved. In January this year, the Ministry of Corporate Affairs constituted a new committee to study and analyse the recommendations of the Insolvency Law Committee and submit a report within three months. And in February, it expanded the terms of reference for the Committee to include the study of the UNCITRAL Model Law for Enterprise Group Insolvency and to make recommendations for the IBC. Hopefully, such thorough exercises will yield a robust legal framework which is able to cater to all situations which arise in a cross-border insolvency process. D – Default A ‘default’ with respect to a debt owed by the CD is a trigger for the initiation of CIRP. The IBC defines ‘default’ in rather uncontroversial terms as : the non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the corporate debtor. The IBC does, however, distinguish between the ‘default’ in respect of the debt owed to financial creditors and operational creditors. The Supreme Court analysed this distinction in Innoventive Industries Limited v. ICICI Bank[4] (Innoventive Industries) based on Section 7 (initiation of CIRP by financial creditor) and Section 8 (initiation of CIRP by operational creditor) of the IBC. The Court noted that scope of determining a default of a financial debt is limited to the records of the information utility and evidence supplied by the financial creditor. The fact that such a debt is disputed by the CD is inconsequential as long as the debt is due and payable, meaning that it is not interdicted by a law or is payable at a future debt. The CD would be entitled to object to the claim of non-payment on these grounds at the stage of inquiry into the occurrence of ‘default’ under Section 7(5). With the definition of ‘default’ as the only guide for the AA, it has no option but to admit the application filed by a financial creditor if it comes to the conclusion that the debt is due and payable. In contrast to this, the CD had considerable leeway in disputing the debt owed to an operational creditor, who does not have the luxury of applying directly to the AA without giving notice of the unpaid debt to CD. The CD is then given ten days, from the receipt of such notice, to claim the existence of a dispute on the payment of the debt with the operational creditor. For instance, a defect in and rejection of goods and consequent lack of liability to pay may be a good dispute. The existence of a dispute with respect to a debt can, therefore, prevent the initiation of CIRP. The reason for allowing the CD to dispute only operational debts is two-fold: first, the debts owed to operational creditors are usually small amounts and a CIRP cannot be allowed to be initiated for paltry amounts, especially when there is room for negotiation with the creditor with regard to the payment of the debt and the capacity of the company to continue as a going concern is not under serious question; second, the chances of raising a dispute with regard to a debt owed to financial creditors is significantly lesser because such debts are generally well-documented and relatively more unimpeachable, especially when registered in information utilities. This leaves very little scope for the CD to dispute its liability and for the AA, which has to only ascertain whether the debt is due and payable. Also, D – Dispute The language of the provisions and the Supreme Court’s decision in Innoventive Industries clarifies the distinction between the position of financial and operational creditors and also underlines the fact that the CD may claim the existence of a dispute in respect of an operational debt and avoid a company going under CIRP. But the question that arises is—what qualifies as a dispute? Section 8(2)(a) allowed the CD to bring to the notice of the operational creditor – the existence of a dispute and record of the pendency of the suit or arbitration proceedings filed before the invoice was raised by the operational creditor. This could be used to avoid the company going into insolvency. The use of the word ‘and’ ostensibly appeared to suggest that pendency of a suit or arbitration proceeding with respect to a debt was the only indicia of existence of a dispute, and it was only in cases of pendency of a suit or other arbitration proceeding that a CIRP could be avoided. This was problematic for many reasons. This meant that any non-payment (which may be for good reason) and perceived default rendered an entity at the risk of being taken to CIRP. It is only in those cases where a CD was either already defending the demand in a court/arbitration or where it had proactively initiated litigation/arbitration to contest a possible future demand, that it could avoid the CIRP by bringing forth the existence of that suit/arbitration proceeding as evidence of existence of a dispute. This was absurd as it left a CD with no option but to initiate litigation/arbitration against all those who may have an interest in initiating the CIRP against it. Not having done this, the CD had practically no defence and risked being thrown into the CIRP oblivion. Fortunately, the Supreme Court has cleared the airs on this issue in Mobilox Innovations Private Limited v. Kirusa Software Private Limited,[5] where it has held that the pendency of suit/proceeding is not the only evidence of existence of a valid dispute; in other words, a demand can be considered disputed even without there being a suit/proceeding already pending in a Court or Tribunal. The Court has achieved this by reading the word ‘and’ as ‘or’ in Section 8(2)(a), in line with the objective of the IBC to discourage a full-fledged CIRP based on insignificant amounts owed to operational creditors. In order to avoid the risk of opening the floodgates for blanket denials of liability by the CD, the Supreme Court has given the AA some discretion in ascertaining that the dispute is not a spurious, hypothetical, or illusory dispute, crafted merely with a view to wriggle out of liability. In doing so, the Supreme Court has implicitly imported the ‘bona fide’ standard which appeared in the definition of ‘dispute’ in the earlier Insolvency and Bankruptcy Bill, 2015. The decision allows the CD to claim the existence of a dispute on the notice of payment by the operational creditor, even if it has not actively pursued it before the CIRP, so long as it is able to satisfy the AA of the genuineness of the dispute. E – Endless Delay, A Persistent Issue? Timely Resolution and preservation of value in underlying assets is one of the main objectives of IBC. It has always been projected as a law which promotes the timely completion of the insolvency process, well in line with its other objective of maximizing the assets’ value. This desire is also reflected in the provisions of the IBC which originally envisaged the completion of the insolvency process within 180 plus 90 days in Section 12. In practice, however, the insolvency regime is still plagued by endless delay in completion of CIRPs. Many attribute this to the delay which occurs at the adjudication stage, where litigation in most cases causes the CIRP to extend beyond the time limit. This undesirable state of affairs is what prompted the Supreme Court to exclude the time taken in litigation from computing the 270 days limit in ArcelorMittal India Private Limited v. Satish Kumar Gupta.[6] Worried that the ruling would only exacerbate the situation of delays, the Government, acting with great alacrity, amended the IBC in 2019 to provide for an upper limit of 330 days for completion of the CIRP but clarified that this limit would be inclusive of both the time taken in legal proceedings and any extensions granted by the Adjudication Authorities. The failure to complete the CIRP within this time limit would attract liquidation which was clearly an unfeasible option for all stakeholders involved in the CIRP. In laying down a non-derogable time limit, the Government was clearly motivated by the desire to preserve the value of assets which naturally depletes if the CIRP goes on indefinitely. But it possibly disregarded the fact that non-compliance with the deadline, even inadvertently, would push the CD towards liquidation which has an equally devastating effect on the CD. This effectively made the remedy worse than the ailment and led to a challenge to the validity of the provision before the Supreme Court in Committee of Creditors of Essar Steel India Limited Through Authorised Signatory v. Satish Kumar Gupta[7] (Essar Steel). The central argument against the provision was premised on the well-known maxim :actus curiae neminem gravabit— an act of Court shall prejudice no one. Since the time limit brooked no exception for situations where the delay was occasioned by the NCLT/NCLAT’s inability to complete the CIRP without any fault of the litigant, it was considered to be a violation of Article 14 (right against non-arbitrary treatment) and Article 19(1)(g) (right to carry on business). However, instead of striking down the provision in its entirety, the Court chose to strike down only the word ‘mandatorily’ and to read it down as ‘ordinarily.’ This was done to balance both the need for speedy disposal along with the need to promote resolution of the CD in cases where the delay was not attributable to it. The effect of this judgment is that, ordinarily, a CIRP should be concluded within the 330 days limit. But if any extension has to be granted by the AA, it can only be granted where it is shown that a short period is left for completion of the CIRP and that the time taken in legal proceedings is attributable to the pendency of the action before and/or inefficiency of NCLT/NCLAT itself. While the judgment has the merit of introducing some flexibility in what would otherwise have become an unfair provision in practice, two issues still remain unaddressed: One, the Court has not devoted any discussion to the standard that has to be satisfied in convincing the NCLT/NCLAT that they themselves have occasioned the delay. Second, it has provided little guidance on any limit to the extensions that can be granted beyond the 330 days limit. In absence of any limit, the ruling may end up aiding exactly what the 2019 amendment had set out to tackle. F – Financial Creditor One of the most important stakeholders in the CIRP are the ‘Financial Creditors.’ This is because they hold the key to unlocking a new life for the CD. This influential status stems from the primacy that the IBC gives to them as the voting members of the CoC and in priority of their claims. Given that it is only the financial creditors who are capable of assessing the viability of the company and who can place it in a long-term context of revival, the IBC accords them this status. Since the financial creditors have lent capital, on which the company’s existence substantially depends, they have a major say in determining its future course of action. As members of the CoC, they wield significant influence in decisions such as approval of the resolution plan ( it is only when 66% of the CoC has approved a resolution plan, can it move forward to the AA for approval), modification of the capital structure, creation of security interests and undertaking related party transactions. However, in 2019, a ruling of the NCLAT in Standard Chartered Bank v. Satish Kumar Gupta, R.P. of Essar Steel Limited[8] had threatened this coveted position of financial creditors when it treated the operational and financial creditors at par by holding that the CoC had no role in deciding the distribution of claims from resolution plans and had to only decide the feasibility of bids. This ruling had the effect of diluting the cardinal principle of preference to secured creditors and implied that there was no difference between secured and unsecured creditors in distribution of proceeds from the resolution plan. This immediately prompted legislative intervention in the form of an amendment in 2019 itself, which restored the primacy of secured financial creditors by enabling the CoC to take into account the order of priority given in Section 53 and the value of a security interest of a secured creditor in the distribution of proceeds, in approving the resolution plan. Further, in order to prevent any disadvantage to operational creditors, the Parliament amended Section 30(2)(b) to state that the resolution plan had to provide the higher of the liquidation value or resolution value to them. This position was also affirmed by the Supreme Court decision in Essar Steel where it held that it was only the CoC, composed entirely of financial creditors, that could decide the feasibility and viability of resolution plans. This is premised on the reasoning that financial creditors, who are willing to take haircuts on their loans and place their claims in a long-term context of the company’s revival, are better placed than operational creditors to take commercially-sound decisions. However, this commercial wisdom of the CoC is not immune from judicial review and the AA has to still ensure that the decision of the CoC reflects a plan to keep the CD alive as a going concern, maximise the value of its assets and take into account the interest of all stakeholders, even the operational creditors. But as long as a CoCs decision in accepting one resolution plan over the other is motivated by the objective of maximising the value of the company and interests of operational creditors with due regard to its capacity and needs to continue as a going concern, the AA would have its hands off and cannot second guess the commercial decisions taken by the CoC. In the backdrop of Covid-19, financial creditors face yet another challenge in recovering their dues and one which is unlikely to be solved in the Courts. The Ministry of Finance has recently announced that it plans to suspend fresh insolvency filings under the IBC for a year and exclude Covid-19 related debt from the definition of ‘default.’ With the minimum threshold to initiate an insolvency already raised from one lakh rupees to one crore rupees, these measures indicate the Government’s intention of prioritising the continuity of businesses over resolution under IBC, in already damp market conditions. The combined effect of this on financial creditors would be adverse, to say the least, considering that the measures foreclose the opportunity to seek resolution under the IBC for a significantly long time. Additionally, this may very well serve as an escape route for undeserving debtors who may have had an impending default, even before Covid-19, which has now been given protection from recovery. Some see the proposed suspension of the IBC as a positive measure since the CoC would unlikely to have received any bids for the CD, given the serious financial pressure that companies are under. It is also being considered as a blessing in disguise for strengthening alternatives such as pre-pack insolvencies. While discussions on the need for a pre-pack insolvency regime have predated Covid-19, it is likely to gain more prominence after the suspension ends and there is an upsurge in the number of insolvencies. Also, F- Fraudulent Transactions “Three businessmen go for dinner, where each tries to prove his financial worth by offering to pay the bill. One of them says that he should pay as his company had a great financial quarter. Another one says that he has recently got a huge amount as inheritance from a rich aunt that he never know he had, therefore, being cash rich, he should pay. And the last one, who also happens to be a promoter of a company, replies, tongue-in-cheek, that he should pay since his company is going under insolvency next week!” With an insolvency on the horizon, unscrupulous promoters sometimes acting in the capacity of directors of the CD may seek to misappropriate assets to the detriment of other creditors. The IBC recognises this possible mischief and seeks to regulate/curb the carrying-on of business which is done with an intent to defraud the creditors of the CD or for any fraudulent purpose. Under Section 66 of the IBC, the RP is empowered to apply to the AA in case it finds the occurrence of any fraudulent transactions. On the application, the AA may direct any persons who were knowingly parties to such transactions to make contributions to the assets of the CD and claw back those monies. The provision goes a step further in enabling the AA to direct the director or the partner of the CD to make contributions to its assets. But to what extent can the RP uncover such antecedent actions of the directors /partners? Section 66(2)(a) of the IBC spells out what is usually called the ‘Twilight Period,’ which is : the period before the insolvency commencement date, when the directors knew or ought to have known that there is no reasonable prospect of avoiding the commencement of the insolvency process for the CD. The directors/partners are required to exercise due diligence in carrying on the business in the twilight period in order to minimize any potential loss to the creditors. Any failure to do so or any negligent or reckless conduct attracts the application of the provision. It can be argued that the provision imposes additional duties on the directors to ensure that the creditors’ interests are protected now that the company has entered the zone of a possible insolvency. The reason for this protection is clear—once the company is on the verge of insolvency, it has to cater to the interests of its creditors, who will only benefit if there are enough assets for a prospective resolution applicant to bid for it or are enough for satisfying their claims in case of liquidation. Thus, transactions selling assets at an undervalue or prioritizing the interests of one creditor over the other are some of the transactions which the provision seeks to regulate. Apart from civil liability under Section 66, fraudulent transactions may also invite criminal liability under Section 69 of the IBC. Like Section 66, where the directors may escape liability by showing that they exercised due diligence in minimizing loss to creditors, Section 69 also allows the officer to show that he had no intent to defraud the creditors at the time of commission of the acts. However, unlike Section 66, the provision has a look-back period of five years before the insolvency commencement date which allows the officer to escape liability for any acts done before this period. On the contrary, the twilight period in Section 66 is not expressed in numerically certain terms and relies on the ‘subjective’ knowledge of a potential CIRP, that a director or partner may have had in the build-up to the CIRP. There is, therefore, little room for disputing the liability to contribute to the assets of the CD under the provision. Many of these fraudulent transactions come up in forensic investigations commissioned by RPs. G – Group Insolvency Aristotle once famously said that the whole is more than the sum of its parts. This cannot be more relevant than in the case of group companies where, more often than not, the entire group as a single economic entity is more valuable than the individual companies which make it. A question which arises here is whether this logic can be stretched to apply to the insolvency of companies which make up the group. Theoretically, it can. Group insolvency, as it is called, can be understood as a consolidated insolvency process for related companies which are part of a larger group. Practically, however, the IBC does not address this. Seen from a jurisprudential standpoint, group insolvency seeks to balance two important imperatives: on one hand, the separate legal personality of even those companies which are closely inter-connected in a group, and on the other hand, recognizing that in spite of this distinct personality, a consolidated insolvency process is advantageous for all stakeholders. Even though there is no legal framework supporting group insolvency, this has not prevented NCLT benches and the NCLAT from engaging with this issue.[9] In fact, these decisions formed the backdrop to the Report of the Working Group on Insolvency[10] which was released in September, 2019. A breakdown of group insolvency into ‘Procedural Co-ordination’ and ‘Substantive Consolidation’ by the Working Group has guided both its explanation and recommendations. ‘Procedural Co-ordination’ mechanisms aim to coordinate the different insolvency processes of various group companies, without actually disturbing the division of assets and substantive claims of creditors of each of the group companies. This mechanism reduces costs and time associated with different insolvency processes. In going a step further than mere coordination, ‘Substantive Consolidation’ aims to consolidate the assets and liabilities of group companies so that they can be treated as a single economic unit for the insolvency process. This typically targets those corporate groups where separate personality of group companies is used to escape liability and where the assets and operations of the group companies are otherwise inseparable. Notwithstanding its benefits, the introduction of a framework for ‘Substantive Consolidation’ may ruffle feathers in the market because it disregards the separate legal personalities of the group companies and combines their asset as part of a single insolvency, sidelining creditor expectations in the process. The Working Group has taken note of this and has therefore recommended a phased implementation of the recommendations with ‘Procedural Co-ordination’ and provisions dealing with perverse behaviour of group companies to be considered in the first phase and ‘Substantive Consolidation’ and Cross-Border Group Insolvency in the second phase. This is a good step especially when the general cross-border insolvency framework is still at a nascent stage. Since the recent amendment to the IBC in 2020 has not dealt with group insolvency at all, it will be interesting to see how the Parliament implements these suggestions in the future. H – Homebuyers Home buyers constitute the major source of finance for builders in housing projects. Much of the financial needs of builders are met by the booking amounts/payments made by the homebuyers. With this being the position, homebuyers clearly had an interest in the insolvency process of companies engaged in construction of housing projects. But the IBC posed an initial hurdle: whether such buyers qualified as ‘Operational’ or ‘Financial’ creditors and if they constituted a separate class of creditors, what was the extent of their rights under the IBC. There were judicial attempts to enable homebuyers to stake a claim in the insolvency process.[11] This was also sanctified by an amendment in 2018 which conferred upon them the status of ‘financial creditors’ and treated the amount raised by them as a ‘financial debt.’ Objections against the inclusion of homebuyers as financial creditors were quick to be made; there was no clarity on when a ‘default’ occurred; it was also argued that they could not be treated equally with secured financial creditors. Additionally, real estate developers who were clearly distressed by the amendments challenged them as violative of the Constitution. Fortunately for the homebuyers, the Supreme Court in Pioneer Urban Land and Infrastructure Limited v. Union of India[12] (Pioneer) rejected the challenge and upheld the amendments allowing them to occupy a place in the CoC and to be part of the decision-making process concerning the company’s future. However, this amendment had an unintended and unseen consequence: it now effectively empowered even a single homebuyer to initiate CIRP and bring an entire project to a grinding halt. This turned the IBC to a mechanism to redress individual grievances which it was never meant to do, especially when such a mechanism already existed under the Real Estate (Regulation and Development) Act, 2016 (RERA). In light of the above, the Parliament has recently amended the IBC and introduced a minimum numerical threshold of not less than 100 allottees or 10% of the total number of allottees, whichever is less, of a real estate project to initiate insolvency. This move, many homebuyers feel, sets them back and poses an insurmountable burden to look for the requisite number of homebuyers to initiate insolvency. Real estate developers, on the other hand, feel that the amendment will ensure that only bona fide applications are filed and that they are not driven to insolvency only on the basis of individual grievances. Homebuyers are pulling out all the stops in trying to wish the amendment away. In January this year, they approached the Supreme Court which ordered the AAs to maintain status quo with respect to applications filed before the amendment, till the constitutional validity of the law was decided. They could not, however, register a success before the Standing Committee on Finance which did not recommend dropping the clause from the Bill, despite the dissenting views of three members.[13] All eyes are now on the Supreme Court which is going to adjudicate the constitutional challenge this year and has rich jurisprudence from earlier to borrow upon in deciding the validity of the amendment. Divided opinions aside, the amendment reinforces the view that the IBC is not meant to redress individual grievances, a remedy for which already exists under RERA. Prescribing a minimum threshold does not in any way dilute the original intent of the IBC which is to provide them a place in the CoC when the real estate company goes under insolvency. Notwithstanding what actually happens in practice, the IBC was never intended to be used as a coercive tool to compel a company to deliver on its promises or to repay the amount taken. There are other remedies for this. As Justice Nariman puts it in the Pioneer verdict, it is only when a homebuyer has completely lost faith in the ability of the current management to complete the project and wants it to be completed by a different developer, should he invoke the remedies under IBC. Seen in this context, a company cannot be thrust into insolvency just because a single homebuyer feels that it should be managed by somebody else. Such a radical decision should be the result of at least a minimum consensus among the homebuyers, especially when the insolvency route also involves the risk of liquidation of the CD . This is precisely what the latest amendment echoes. To be continued…. Authored by Bharat Chugh, Former Judge & Partner, L&L Partners, Law Offices and Mr. Advaya Hari Singh, 4th-year B.A., LL.B student at National Law University, Nagpur. The views of the authors are personal.The Article is first published here [1]https://ibbi.gov.in/uploads/resources/Report_on_Cross%20Border_Insolvency.pdf. [2]Jet Airways (India) Ltd. v. State Bank of India, (2019) SCC OnLine NCLAT 385. [3]State Bank of India v. Videocon Industries Limited, MA 2385-2019 in C.P.(IB)-02- MB-2018 (12.02.2020). [4](2018) 1 SCC 407. [5](2018) 1 SCC 353. [6](2019) 2 SCC 1. [7](2019) SCC OnLine SC 1478. [8](2019) SCC OnLine NCLAT 388. [9]Venugopal Dhoot v. State Bank of India, CA- 1022(PB)/2018 (24.10.2018); State Bank of India v. Videocon Industries Ltd., M.A 1306/ 2018 in CP No. 02/2018 (08.08.2019); Edelweiss Asset Reconstruction Company Limited v. Sachet Infrastructure Pvt. Ltd., Company Appeal (AT) (Insolvency) Nos. 377 to 385 of 2019 (20.09.2019); Lavasa Corporation Limited, C.P. 1765/IB/NCLT/MB/2018 (26.02.2020). [10]https://www.ibbi.gov.in/uploads/whatsnew/2019-10-12-004043-ep0vq-d2b41342411e65d9558a8c0d8bb6c666.pdf [11]Nikhil Mehta v. AMR Infrastructure, (2017) SCC OnLine NCLAT 859. [12](2019) 8 SCC 416. [13]https://ibbi.gov.in/uploads/resources/20ef77b3a1200f12ad19cee1c2c3dba9.pdf. 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A journey of faith, adventure

first_img Print Article Remember America’s heroes on Memorial Day Troy falls to No. 13 Clemson You Might Like New nutrition center set for bid The plans for the City of Troy’s new nutrition center have been approved and ground will be broken in January…. read more Pike County Sheriff’s Office offering community child ID kits Plans underway for historic Pike County celebration By Jaine Treadwell Email the author The journey began with Glasscock swimming in the Klondike River after a polar bear spooked his horse. It came to a successful end only after brushes with armed robbers, exposure to political executions and imprisonment by the Sandinistas in the Nicaraguan civil war and weeks spent hacking his way through the dark jungles that connect Central and South America.“I had planned for that trip to take three years but the media kept asking and I’d say from two to three years,” he said. “The media started saying a two-year journey and I started pushing but that took much of the joy out of the experience. I said I’d never push myself again like that. And, I haven’t.”In 2002, he saddled up again on a quest to visit the capitals of all 48 adjacent states and to do something to help make life better for others.“The long ride was to raise money for the Philips Fund that is a scholarship program that offers underprivileged young people from Paraguay the chance to attend Pensacola Christian College,” he said. “The deal was that they would then return to Paraguay to help the people there.” Published 8:18 am Tuesday, November 29, 2011 A journey of faith, adventurecenter_img Next UpIf anybody could make it across the Atlantic Ocean on seahorses, it would be the 77-year-old native Texan. After all, he has already logged 12,000 miles from the Yukon Territory to the Equator on horseback and another 20,000 miles across and around the Continental United States.Glasscock is the only person on record to have ridden horseback from North to South America. The journey, which began in May 1984, took him two years and two days.That trip killed one of his horses and almost killed him. Book Nook to reopen Sponsored Content Latest Stories This Video Will Soon Be Banned. Watch Before It’s… By Secrets Revealed Glasscock spent two years in Paraguay teaching English and Bible classes to children, but a hearing loss in one ear made teaching difficult. He returned home, but a part of his heart remains with the people there.When Glasscock began his long rides at the Arctic Circle, his desire was to see the different terrains, the different vegetation and animals but he soon realized that it was the people along the way that drew him to the mission.“It’s always about people,” he said. “Life is not about yourself, it’s about other people. Out here on the road, you come to know that.”So, when Glasscock found himself without much to do, he decided to hitch up a wagon and hit the roads again. He left San Diego on Sept. 7 and has traveled at a steady clip of 10 to 12 miles a day. “Along the way, I hand out the books of John and Romans as I go,” he said. “Before the invention of the Guttenberg Press, to write the entire Bible would have been too time consuming. So the most commonly written books were John and Romans. John gives us the plan of salvation and Romans teaches us how to live as Christians.”Glasscock takes every opportunity to spread the gospel and looks back to an event of 1952 as the best thing that has happened to him.“I was 18 years old and I accepted Christ into my life and, from that time forward, the Lord has been my baby sitter. He has taken good care of me.”Twenty-years in high-rise construction and thousands upon thousands of miles traveling from country to country on horseback, and God has been with him every step of the way, Glasscock said.“I’ve been told not to make my journeys. That it’s too dangerous. But you can’t let somebody else’s fears hold you back,” he said. “You’ve got to live your life. I don’t want to sit on the porch and rock myself to death.“This journey across the country will be my last go-round. I wouldn’t trade my life for anybody’s. There could be nothing more thrilling than being exposed to different cultures and serving the Lord at the same time.”Glasscock’s hope is to return to Paraguay and teach English and Bible once again.“That was one of the greatest joys of my life,” he said. “I don’t plan to fold up and die.”Glasscock has six children and 41 grandchildren who love him and are concerned for him.“Some of them want me to stay home and rock but one of my sons says, ‘Leave daddy alone. Let him do what he wants to do. He’s happy.’ Now that’s my favorite son,” Glasscock said, with a smile and a twinkle in his eyes.”Glasscock climbed onto the wagon with his sights sent on Brunswick, Georgia, and the Atlantic Ocean.“You asked my favorite state?” he said. “Well, it’s the state that I’m in right now. The State of Contentment.”With that, he pulled his jacket up around his neck and rumbled off down busy U.S. Highway 231, leaving motorists to wonder – who, where and why? Gene Glasscock’s cross-country journey brought him through PIke County this weekend, where he shared his story and his philosophy on life.Gene Glasscock rumbled through Pike County Monday on a mule-draw wagon. He has somewhere to go but he’s in no hurry. He’ll get to the Atlantic Ocean soon enough.And, when he does, he plans to keep on going. That is, if President Obama honors his request.“The president does some mighty foolish things, so I’m hoping that he’ll get me a team of seahorses over there, so I can go on across the ocean,” Glasscock said, with a chuckle and a twinkle in his eyes. Around the WebDoctor: Do This Immediately if You Have Diabetes (Watch)Health VideosIf You Have Ringing Ears Do This Immediately (Ends Tinnitus)Healthier LivingHave an Enlarged Prostate? Urologist Reveals: Do This Immediately (Watch)Healthier LivingWomen Only: Stretch This Muscle to Stop Bladder Leakage (Watch)Healthier LivingRemoving Moles & Skin Tags Has Never Been This EasyEssential HealthGet Fortnite SkinsTCGThe content you see here is paid for by the advertiser or content provider whose link you click on, and is recommended to you by Revcontent. As the leading platform for native advertising and content recommendation, Revcontent uses interest based targeting to select content that we think will be of particular interest to you. We encourage you to view your opt out options in Revcontent’s Privacy PolicyWant your content to appear on sites like this?Increase Your Engagement Now!Want to report this publisher’s content as misinformation?Submit a ReportGot it, thanks!Remove Content Link?Please choose a reason below:Fake NewsMisleadingNot InterestedOffensiveRepetitiveSubmitCancellast_img read more

Who’s watching?

first_imgRelated posts:No related photos. Howwill the Employment Practices Data Protection Code on Monitoring at Work,published in June, help OH comply with the Data Protection Act and will itencourage employers to adopt good practice? By Linda Goldman & Joan Lewis There is a public perception that the workplace is a hothouse for nurturinglitigation. On one hand, the raft of European and domestic legislation designed toensure health and safety at work opens a door to legal intervention. On the other, the current trend towards fair and flexible internal grievanceresolution, supported by statutory dispute resolution procedures has not yetreduced the numbers of people making claims in courts and tribunals. Underpinning any successful solution to otherwise irreconcilable differencesis the need for accurate information, properly acquired. Once facts are on record, the Data Protection Act 1998 (DPA) becomes theframework for justice. In June 2003, the Information Commissioner published Part 3 of the EmploymentPractices Data Protection Code on Monitoring at Work. This will help OHpractitioners comply with the DPA and, in particular, encourage their employersto adopt good practice. Rights of the data subject The facts that comprise information about an individual are called data. TheDPA contains eight principles by which data is acquired, stored and used. Theseare set against the background of the most important fact of all: data is theproperty of the person to whom it relates. Responsibilities of data control OH practitioners acquire and store data. They are therefore datacontrollers, on whom the duty to process data fairly and lawfully can only befulfilled by attaining consent from the subject. Consent will also relate to the release of data in certain specifiedsituations, including for legal proceedings. In a life or death situation,consent for the use of data can be given by a third party. Data may also be disclosed where necessary for medical purposes if it isundertaken by a health professional subject to an ethical duty ofconfidentiality. It is also worth noting that in some circumstances, OH may be privy toinformation that may need to be disclosed in the ‘public interest’. Take, for example, a drugs test that reveals the use of an illegal drug bysomeone applying for another job who works in a potentially hazardousoccupation, say, a bus driver or fork-lift driver. What is the duty of the OH department, which has carried out the healthsurveillance for the new employer to inform the employee’s current employer, ofthe results of the drugs test? Here the question of disclosure arises because of the risk to the public ofa driver with drugs in his system. Disclosure should only be made to his otheremployer if so advised by the practitioner’s legal advisers, as it will have topick up the tab if it turns out that disclosure should not have been made. The DPA provides in section 29 for disclosure for the purposes ofinvestigating crime. If the drug is an illegal substance and the police are theagency for investigating crime, disclosure to the police may be made, providedthe insurer agrees that any steps should be taken at all. Since data should only be kept for the purpose for which it is needed andfor a justifiable period, the OH practitioner must bear in mind that there willbe cases where records may need to be preserved if there is a risk of personalinjury litigation. For example, three years is the limitation period runningfrom the date of knowledge of the accident or injury for a claim in negligence.Where further health records need to be kept because of the risk oflong-term illness such as asbestosis or other chemical or product relatedissues, a view should be taken on maintaining records for longer. As a matter of good practice, health and safety legislation should beconsulted to see if any aspect of the work carried out by the at-risk employeerequires retention for longer periods. The information contained in retained records remains the property of theindividual who, for a standard fee of £10, is entitled to have a copy for theirown information. It is advisable to keep a record of the fact that any changesto records have taken place, such as when deletions are made. The Information Commissioner is in the protracted process of issuing acomplete code of practice in relation to employment practices in theimplementation of the DPA. To date, three parts of the code have beenpublished. The fourth part will relate to medical information, and is expectedto be published by the end of the year. The parts of the code issued to date suggest that a very high standard ofcompliance with the DPA is required. For OH practitioners, these standards accord with ethical principles. Since the fourth data principle requires accuracy of data and the fifthrequires data to be kept for no longer than necessary, more interaction withdata subjects may be useful. It is suggested that employees be shown theirrecords at regular intervals so updates can be made and inaccuracies identified.Effect of the code of practice on workplace monitoring Stringent precautions should be taken when transmitting data, particularlycontaining medical information, by e-mail, fax or post to ensure securityencryption and receipt by the named addressee. E-mail is an increasing problem. Many complaints are made to the InformationCommissioner about refusal of access to information held in e-mails, usuallywhen the data controller believes they have been deleted, but in fact a back-upsystem has ensured retention. The commissioner has the power to assess whether there has been a failure toprovide access to personal data held in e-mails by making his owninvestigation. In using that power, he will ascertain whether there has beencompliance with the applicable part of the code of practice. As a general rule, a code of practice does not have the full force of thelaw, but the employer’s failure to comply may be taken into account as evidencetending to support a breach of the Act having been committed. Transmission of OH records occurs at the stage when they are released undercircumstances, which include the request of the subject and change of OHprovider. In the latter instance, the affected data subjects should be informed of thewhereabouts of their records and the nature and scope of the new dataprotection system. When in doubt about the transferral or storage of records,particularly if the original employer becomes insolvent, the Employment MedicalAdvisory Service may be able to advise. www.hse.gov.ukwww.hsedirect.comLinda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is headof training and education for ACT Associates & Virtual Personnel. Joan Lewisis the senior consultant and director of Advisory, Consulting & TrainingAssociates and Virtual Personnel, employment law and advisory serviceconsultancies and licensed by the General Council of the Bar in employmentmatters under BarDirect. Sketchplan of data protection principlesData must be:– fairly and lawfully processed – processed for limited purposes compatible with those purposes– adequate, relevant and not excessive for the purpose – accurate– maintained for no longer than necessary – processed in accordance with the rights of the individual– kept securelyData must not be:– transferred outside the EU without consent of the subjectunless that country can assure the rights of the data subjectCasebook – practical aspects ofconfidentialityThe new Employment Practices DataProtection Code on Monitoring at WorkThe latest tranche of the code gives detailed guidance onmonitoring at work and covers an employer’s use of CCTV cameras and automatedchecking software to collect information about workers.Although there may be a bona fide purpose in surveillance, itsuse often has implications for OH confidentiality. For example, it is notunknown for workers ostensibly on sick leave to have their activities outsidethe workplace videoed to collect evidence that they may not actually be sick. E-mail or internet abuse is often a serious disciplinaryoffence. Distributing or receiving pornographic e-mails is high on the list ofreasons for dismissal and is considered to be justification for monitoringe-mail systems. However, general monitoring may affect the way the OHdepartment deals with external communications. According to the code, the employer should make it clear tostaff the circumstances in which, if at all, they may use the e-mail system andinternet access for private communications. As for medical matters, provisionfor confidentiality is made by suggesting the use of clearly marked internalpost, probably because of the inherent back-up systems in computers wherebyotherwise confidential material may be accessed later. Specific details areavailable on the Information Commissioner’s website. www.dataprotection.gov.uk/dpr/dpdoc.nsfZ v Finland (1998) 25 EHRR 371The European Court of Human Rights determined that Z’s medicalrecords were legally disclosed in proceedings in which her husband was chargedwith rape and manslaughter for knowingly infecting his victims with HIV.However, disclosure of her identity was a breach of Article 8of the Human Rights Convention, which provides that the protection of personaldata, not least medical data, is of fundamental importance to a person’senjoyment of their respect for private and family life. The court held that itis crucial not only to respect the sense of privacy of a patient, but also topreserve their confidence in the medical profession and in the health servicesin general. Without such protection, those in need of medical assistance may bedeterred from revealing such information of a personal and intimate nature asmay be necessary in order to receive appropriate treatment and, even fromseeking such assistance, thereby endangering their own health and, in the caseof transmissible diseases, that of the community.Z resisted police attempts to discover her HIV status. Thepolice then seized her medical records from hospital. They were included in thecourt file to be released to the public in 2002. The seizure of records waslawful because it was in pursuance of the legitimate aim of investigating and prosecutinga crime and was proportionate.London Borough of Hammersmith andFulham v Farnsworth (2000) IRLR 691 EATFarnsworth was offered a job subject to ‘medical clearance’.Her medical records showed she had suffered from mental illness in the past. Theborough’s OH physician reported, “…[although] the GP reports her healthhas been good over the last year, in view of her medical history I am concernedshe may be liable to further recurrence in the future… [that would] affect[her] attendance.” The employment tribunal found she had suffered disabilitydiscrimination. The borough ignored the reference, which showed no absence fromwork in her previous post. The EAT upheld the decision, stating that there wasno valid distinction between the borough and its agent, the OH physician. They were under a duty to continue any enquiry as toFarnsworth’s fitness to work. This puts a curious slant on confidentiality. Theapplicant’s agreement that her medical records could be disclosed to thepotential employer meant they were deemed to be within the knowledge of theemployer, having been seen by the medical officer. Further, the decisionconfirms that an employer cannot rely on the employee/applicant’s failure tomake formal confirmation of disability status to avoid a finding of disabilitydiscrimination. Comments are closed. Previous Article Next Article Who’s watching?On 1 Aug 2003 in Personnel Todaylast_img read more

Oxford University Hospitals granted foundation trust status

first_img Dr Paul Altmann, Oxford University Hospitals NHS Foundation Trust Chief Clinical Information Officer, commented, “Being awarded Digital Hospital of the Year is recognition of all the hard work that has been going on across the Trust. We implemented a number of solutions over the past few years to improve our digital strategy, including plans to take paper out of the system, improve clinical deci- sion support and make use of the rich sources of information to further transform care.“We have advanced plans to continue to innovate and deliver a digital platform to be used to improve clinical performance, change models of care and manage care in ways which are not possible on paper.” Jessica Prince, a second-year medic at St John’s College, told Cherwell, “This is fantastic news as it recognises the Trust’s achievements establishing fully digital hospitals by making all patients’ medical history and care requirements available on the Trust’s electronic patient record (EPR) system.” “I want to take this opportunity to thank our fantastic staff for their continued commitment to delivering high quality healthcare for all our patients. We recognise that becoming a foundation trust does not in itself solve the challenges facing us or the NHS nationwide. We will continue to focus on sustaining delivering safe and high quality care, living within our means and meeting national standards in a very difficult financial climate.” Dame Fiona Caldicott, Chairman of Oxford University Hospitals NHS Foundation Trust, highlighted the benefits the change will make to services, stating, “Being a Foundation Trust will enable us to continue to improve our services by increasing the involvement of patients, staff and the local communities that we serve through our membership. It means that our Council of Governors will now play an important role in holding the Board of Di- rectors to account, appointing non-executive Directors and contributing to the strategic direction of the Trust. “This is a most exciting event for the Trust and a vote of confidence in the achievements and capability of our staff.” Since being granted the foundation trust status, Oxford University Hospi- tals has been named Digital Hospital of the Year. The Trust administers over 20,000 drugs every day electronically and medicine requests can be made online. Patient information can be stored, diagnostic tests can be ordered and doctors can view results electronically. This implementation of an electronic patient record is seen to be one of the most advanced systems in the NHS and is used by more than 8,000 members of staff every day. Monitor, the regulator of of NHS Services in England, has awarded Oxford University Hospitals with foundation trust status after a thorough examination of the hospital’s qual- ity of care, finances, governance and performance against national standards.This included scrutiny by the NHS Trust Development Authority as well as the Care Quality Commission giving Oxford University Hospitals an overall rating of ‘Good’ in May last year. John Radcliffe, Churchill, Horton, and the Nuffield Orthopaedic Centre are now free from central government control and able to decide how to improve their services. The foundation trust also allows the hospi- tals to retain any surpluses they generate to invest in new services and borrow money to support these investments. They are now accountable to their local communities, and students and locals will be allowed to have more of a say in the way their hospital is run, through a Council of Governors. This includes both elected and ap- pointed public and staff governors, who will play an important role in holding the Board to account.Sir Jonathan Michael, the recently retired Chief Executive of Oxford University Hospitals NHS Foundation Trust, told Cherwell, “The work we have done to become a foundation trust has involved a journey of improvement that needed to happen anyway. Foun- dation trust status has been a stimulus to us to pursue this improvement but was not a destination in itself. “Becoming a foundation trust is recognition of the work we have done to improve the quality and efficiency of our services for patients and the capability we have to continue these improvements. It also provides more local accountability through our membership and Council of Governors.center_img “Having the EPR system will enable doctors to access important patient information at all hospitals that are part of the trust. This will make diagnoses a much easier, stress-free experience for both the doctor and patient as well as helping to improve accurate recording. I am excited to see the efforts taken by Oxford University Hospitals NHS Foundation Trust be implemented in other hospitals.”last_img read more

Bayonne Briefs

first_imgThe Bayonne Nature Club adopted the use of nets to catch plastics on Bayonne’s western shore near Rutkowski Park. The group conducted a shoreline cleanup on Friday, May 4, scooping up plastic cigar filters, empty bottles of alcohol and soft drinks, candy wrappers, shoes, and a child’s scooter. Much of the garbage likely made it to the shore through Bayonne’s underground sewage system, where garbage often builds. During times of intense precipitation, the sewage overflows through more than 30 outflows surrounding the city. Also, at Rutkowski Park, vegetation is starting to grow back along a pathway that had to be dug up to remove chromium. Tree saplings have been planted, and native vegetation is expected to sprout again soon. ×The Bayonne Nature Club adopted the use of nets to catch plastics on Bayonne’s western shore near Rutkowski Park. The group conducted a shoreline cleanup on Friday, May 4, scooping up plastic cigar filters, empty bottles of alcohol and soft drinks, candy wrappers, shoes, and a child’s scooter. Much of the garbage likely made it to the shore through Bayonne’s underground sewage system, where garbage often builds. During times of intense precipitation, the sewage overflows through more than 30 outflows surrounding the city. Also, at Rutkowski Park, vegetation is starting to grow back along a pathway that had to be dug up to remove chromium. Tree saplings have been planted, and native vegetation is expected to sprout again soon. $650K grant for construction of ferry terminalA proposed passenger ferry terminal in Bayonne took another step forward last week when Mayor James Davis and U.S. Representative Albio Sires announced Bayonne as the recipient of a $650,000 U.S. Department of Transportation grant to help with the construction of a terminal on the former Military Ocean Terminal Base (MOTBY).The award comes after the city agreed in March to lease a piece of land from the Port Authority of New York and New Jersey for $2 million over 10 years. The site of the potential ferry would be about a half mile east of the 34th Street Light Rail station on the southern shore of the base.Then in April, the Bayonne City Council issued a request for proposals for a ferry operator. NY Waterway, the only private ferry operator in Hudson County, is the most likely company to respond.The grant comes from the USDOT Passenger Ferry Grant program (49 U.S.C. 5307(h)), which, according to the USDOT website, “provides competitive funding for projects that support passenger ferry systems in urbanized areas. These funds constitute a core investment in the enhancement and revitalization of public ferry systems in the nation’s urbanized areas.”Mayor James Davis said in a press release, “Commuter ferry service is a game changer for Bayonne, and this federal grant is another step forward for our city toward a brighter future with millions in new tax revenue and an opportunity for our community to thrive.”center_img Plans to move Polish JC statue draws criticism from DavisA member of the Polish senate went on a Polish radio station last week, calling the effort by Jersey City government to move a 34-foot statue at Exchange Place three blocks away “scandalous.” The statue, erected in 1991, is called the “Katyn Memorial,” and depicts a Polish soldier being stabbed in the back. It memorializes 20,000 Polish victims of a 1940 massacre carried out by the Soviet secret police.Mayor Steven Fulop, in response, called the senator a “known anti-Semite” and stuck to his guns about his decision to move it three blocks west – the location originally designated in 1986 when it was gifted to Jersey City from Poland.Meanwhile, Mayor James Davis offered Bayonne as a landing spot for the monument. It wouldn’t be the first time Bayonne would adopt a Jersey City monument. The Teardrop Memorial, gifted to the United States by Russia, was originally planned for Jersey City, but it now it stands as one of Bayonne’s greatest destinations.“As mayor I would be proud to have it at one of our many wonderful parks, maybe at Rutkowski Park which is named in honor of one of Bayonne’s most prominent Polish-American leaders,” Davis said last week. Demand is high for industrial space in NJThe square footage of space for which industrial leases were signed in the first quarter of the year dropped in New Jersey by 27 percent, according to the Wall Street Journal. That doesn’t mean that space is sitting vacant. Quite the opposite. The demand for space is exceeding the supply, and as a result rents have increased by nearly 12 percent, according to the real estate services firm JLL.That trend is no different in Bayonne, where Ports of America recently sold 90 acres of land on the former Military Ocean Terminal Base, currently occupied by 20th Century-era warehouses, to Lincoln Equities Group for the construction of 1.6 million square feet of new industrial warehouses by 2021. What entity will lease the warehouse is unknown, but the buyer said that it expects 2,700 permanent jobs to come from the site. After years of fighting Christie, state workers to ratify contractThe 32,000 state employees who are members of the Communications Workers of America, who have been working without a contract since 2015, have ratified a new agreement, according to NJ Advance Media. Hundreds of Bayonne residents are CWA union members. The workers will receive two raises of 2 percent each and retroactive bonuses for longevity that had been withheld by the Christie administration. The contract expires in June 2019, and negotiations are under way for the next deal.Murphy signs bill allowing property taxes as charitable giftsGov. Phil Murphy signed into law on Friday legislation that allows NJ homeowners to treat their property taxes as charitable gifts, according to the Associated Press. The Legislature passed the measure after the federal tax overhaul, which puts a $10,000 cap on property tax deductions, was signed by President Donald Trump.Under New Jersey’s law, school districts and towns may set up charitable funds to which taxpayers can make donations instead of paying property taxes. The federal tax law does not cap the amount of deductions for charitable gifts.Port Authority police superintendent abruptly retiresPort Authority Police Superintendent Michael Fedorko retired Monday, a move coming at the same time that his department is under investigation over claims that radio host Rush Limbaugh received a police escort, NJ.com reports. Fedorko, 73, had been the Port Authority’s director of public safety since 2009 and was paid more than $220,000 a year. Edward Cetnar will be acting superintendent. The Port Authority’s inspector general has been investigating reports that Limbaugh was given a rush-hour police escort from Newark Liberty International Airport to a charity gala in Manhattan.Costco officially signs Bayonne leaseRD Management LLC, one of the nation’s largest privately held real-estate development and management organizations, and partner JMF Properties, a NJ development company specializing in transit-oriented projects, urban retail centers, and commercial office parks, announced a lease signing with Costco Wholesale, the anchor at Harbor Pointe Marketplace.The development partners broke ground recently on Costco Wholesale, which is scheduled to open in fall 2018 and will include a Costco gas station with 18 gas pumps. The retailer will occupy 150,000 square feet of the 240,000-square-foot property. Residential and additional retail developments are also currently underway nearby.Currently, Costco Wholesale operates 727 warehouses worldwide and employs more than 200,000 people. During the 2016 fiscal year, the company reported total sales of $116.1 billion.NJ Attorney General creates unit to investigate data privacyState Attorney General Gurbir Grewal announced Monday that his office will have a new unit to investigate Facebook and issues related to data privacy. The unit will be involved in enforcement of laws that protect state residents’ online data privacy.Open call for artworksPaul Robeson Galleries at Rutgers University – Newark is seeking proposals from artists whose work uses food as a medium or subject matter.The 2019 Main Gallery, Express Newark exhibition will center on food as a social, political, and bodily phenomenon. Specifically, the exhibition will consider food as a commodity; the relationship between food, death, sex, and the abject; food’s relationship to global economics and geopolitics; food and its likeness as a medium for artistic experimentation; the food chain and the environmental impacts of food production; and food justice.The exhibition will be on display January – December 2019 and will be accompanied by a catalog. You must be able to loan your work for that period of time.Apply online at https://form.jotform.com/81145165793158.‘Hamilton’ actor Christopher Jackson to deliver the HCCC commencement speechChristopher Jackson, cast member of the Broadway musical “Hamilton,” will deliver the keynote address to the Hudson County Community College Class of 2018 in its 41st annual graduation ceremony.The college’s commencement ceremonies will take place on Thursday, May 17 at 6 p.m. at the New Jersey Performing Arts Center (NJPAC) in Newark.Playing fast and loose with worker classificationGov. Murphy has issued an executive order— his 25th — to create a task force to investigate employee misclassification. That’s when companies intentionally misrepresent workers, classifying them as independent contractors rather than fulltime employees, so the companies don’t have to pay social security and unemployment insurance, and the like. According to NJ Spotlight, the practice costs the state an estimated $9 million every year.Jersey City Bike Tour will roll June 3Registration is now open for the 9th annual Jersey City Ward Tour & Festival. “Bike around JC, then party with all the bikey people,” reads the press release. The tour, which takes 2,000 riders on a 16-mile route through Jersey City’s six wards, starts on Sunday, June 3, at 11 a.m. at City Hall, 280 Grove St.Protected by rolling street closures implemented by Jersey City police, riders will make a clockwise loop around the city at a manageable pace (10 mph at the front) with several rest breaks, and finish between 1 and 1:30 p.m. on the Hudson River waterfront near the foot of Second Street.The tour is presented in partnership with Mayor Steven M. Fulop, the Jersey City Municipal Council, and the Office of Cultural Affairs.The Finish Line Festival follows all afternoon until 5 p.m. in and around Lutze Biergarten, featuring live music, food and drink, an expo with community/nonprofit organizations, and more.Registration for the tour is required and is free, with a $5 suggested donation to Bike JC. Riders must be age 12 or older, and must wear helmets. Younger children may be carried securely on an adult’s bike. The tour is rain or shine.Bike JC is a citizen-based 501(c)(3) nonprofit advocacy organization that aims to make Jersey City streets welcoming for bicyclists by promoting bike-friendly policies, including protected bike lanes, bicycle education, and traffic law enforcement.Thousands of NJ Hondurans affected by change in immigration statusAn estimated 3,700 Hondurans who live in NJ will have to leave the country by January 2020 after the Trump administration removed their “temporary protected status” on Friday, according to NJ Spotlight.Hondurans were granted the status after Hurricane Mitch devastated their Caribbean nation in 1998, killing more than 7,000 and leaving 1.5 million homeless. Secretary Kirstjen Nielsen of the Department of Homeland Security said conditions in Honduras had improved enough to remove the temporary protected status.State A.G. asks Weehawken to lift ban on out-of-town residents making right turnNJ Atty. General Gurbir Grewal’s office recently sent Weehawken a letter, asking the town to not enforce a turning ban against out-of-town motorists until the state Department of Transportation completes a review of the area.The ban had prohibited nonresidents from making a right turn onto Pleasant Avenue from Hackensack Plank Road, weekdays from 3-7 p.m. The town issued the ban because they say non-residents frequently use the turn as a shortcut to Route 495 and parts west. This, officials argued, caused traffic clogs and upset residents.The letter requested a sit-down with the town and the state Department of Transportation over the ban. Town officials met with the DOT and gave them a tour of the area, Weehawken Mayor Richard Turner said. The state agency is currently working on a plan to alleviate traffic at the intersection without needing the ban, Turner said.Until then, officers are holding traffic at the turn until the intersection is clear, instead of enforcing the ban. However, the mayor says that traffic has greatly improved since the restriction, as nonresidents are using other streets to get around. Officers have yet to issue a ticket.“I think they understand the problem,” Turner said of DOT efforts to fix it.last_img read more

Ocean City Teen Reels in Giant Fish, Breaks Record

first_imgEddie Kelly, 15, of Ocean City, second from left, stands with his huge catch, a 66-pound mahi-mahi. (Courtesy Ron Gallagher) The Ocean City Marlin and Tuna Club held its annual “Labor Day Jamboree” fishing tournament over Labor Day weekend. Club member Eddie Kelly, 15, of Ocean City, broke a record, reeling in a huge fish – a 66-pound mahi-mahi.Eddie was part of the crew of the “Lisa Marie,” a 36-foot sport fishing boat based in Ocean City. “While trolling 85 miles off the coast in the Baltimore Canyon, Eddie hooked up to a mahi-mahi,” said Ron Gallagher, the club commodore. “After a 45-minute battle, the fish was brought into the boat.”Later, during the official weigh-in held at the Ocean City Yacht Club, the mahi-mahi tipped the scales at a whopping 66 pounds, three pounds over the record held since 2010. Eddie is a student at St. Augustine Prep High School. In the summer, he works at Finatics Tackle Shop on West Avenue in Ocean City.Eddie Kelly proudly displays his catch. (Courtesy Ron Gallagher)last_img read more