Win A Traineeship With Money.pl And Chałas & Partners

Chałas & Partners Law Office together with Internet Portal Money.pl organize the second edition of the contest which is addressed to future lawyers (III, IV and V year students, and graduates who completed the study the latest in 2008). For the best participants 10 traineeships in one of the Departments of Chałas & Partners Law Office are secured. Students who demonstrate the ability to solve cases on current problems relating to legal services rendered in favour of corporate clients will have the opportunity to enter into contractual relationship with the Law Office.

The condition of participation in the contest is to solve one of the tasks published at http://staz.prawo.money.pl.

The cases concern different areas of law. In order to find a clue, young adepts of law are required to apply law in a logical manner.

If you are interested in participating in the contest, we invite you to get acquainted with the relevant regulation published on the web page http://staz.prawo.money.pl

Organizers:

Partners:

The Foreign Currency Options and a Decision of a Court

For many recent weeks there’s been a public discussion on possible judgement, which the courts may hold with respect to foreign currency options. In theory, by virtue of Polish law, a court might hold void or change the terms of contract concerning foreign currency options.

In order to form the opinion as to the existence of an error as to the act in law or deception, it is necessary to get acquainted with the facts of each case. General remarks and comments concerning potential dispute can only be hypothetical. Thus, they are of general character.

It is similar with references to the general clauses, especially to a clause concerning major change of economic situation (rebus sic stantibus clause regulated by art. 357¹ of the Civil Code) in a court disputes, made by a party (company or entrepreneur), or to a clause concerning activities of a bank, which are described as being contrary to principles of social co-existence (art. 58 § 2 of the Civil Code), or activities contrary to freedom of contracting principle (art. 353¹ of the Civil Code) especially in terms of asymmetry of undertaken risk of losses between the parties to the contract concerning foreign currency options.

In a litigation, in order to refer to the above-mentioned clauses, the party who conducts commercial activity is obliged to prove that either of them can be applied and that it forms liability of the bank. It is inevitably connected with a long-lasting and complex stipulations, which should focus only on examination of documents connected with disastrous transactions by the court. Even if these stipulations are successful in the litigation, i.e. for example if a party proves that he acted under the essential error as to the act in law and therefore the court should hold the contract to be void and ineffective, then the problem of mutual discharge of liabilities between the parties to the transaction appears. It result from the fact that the contract concerning foreign currency options will be hold as void ex tunc. That does not mean that there will be no obligation of mutual discharge of liabilities as regards the void transaction. An unjust enrichment may be taken into account in this case.

The litigation concerning foreign currency options will be the litigation of commercial character. The party, who conducts commercial activity is treated as a professional and therefore is required to exercise higher standards of due diligence in court proceedings. It refers mainly to complete description of his allegations, stipulations and giving proves already in the Writ of Summons. In case it is done at a later stage of litigation, it may be found to be inadmissible.

Before the party decides to institute litigation, he should realize that the court judgment in his case, will be of some sort of precedential character. Till now, no judgment have been held in the cases of the kind under consideration. Therefore it is likely that first of them will have to be decided by the Supreme Court, which means few years of proceedings before the final judgment is issued. Besides, commencement of litigation means bearing the costs of litigation like a court fee, and what seems to be inevitable – expenses on witness-experts etc.

Some facilitation in examination of the disputes concerning foreign currency options might bring the Act on Collective Enforcement of Claims in Litigation, which is under parliamentary works at present. Pursuant to the draft of that Act, at least 10 persons, acting together, may lodge a Collective Writ of Summons, if legal and factual grounds of their claims are identical, under the condition that there are vital factual circumstances justifying these persons to act together. Some cases referring to the contracts concerning foreign currency options might fulfill mentioned-above requirements of the said Act because they were concluded in line with the same general terms and conditions applied by a specific bank. The collective enforcement of claims in litigation might also limits costs of proceedings.

Commencement of litigation by the party, which conducts commercial activity, is burdened by not small risk, even due the reason, that the said party as a professional is burdened by the higher standards of due diligence in the course of contracting the transaction. Therefore, making references by this party to for example unawareness of the level of risk connected with the contract concerning foreign currency options and deriving positive legal consequences for himself from it, will not always turn out to be effective. Consequently, institution of the litigation should be considered as a final way of resolving the dispute. Thus, the first suggested option for entrepreneurs and companies should be commencement of negotiations with banks and taking this way of solving the problems arisen from the transactions under consideration.

Protection of Information and Intellectual Property – Prevention in Times of Crisis

Recent changes on employment market, triggered off by present economic situation, has resulted among others in the decrease of the level of employment. Reductions in employment level concern employees of all grades and positions, including employees, who have access to data under special protection.  As the latest analysis concerning security of intellectual property in enterprises show, economic recession and reductions in employment level, which are linked to recession, might result in unauthorized disclosure of the data under special protection. The termination of employment contract is a conducive factor in terms of disclosing protected data by a former employee, taking into account the possibility to strengthen employment situation of such an employee and possibility to enter into cooperation with a company competitive with respect to his former employer. This kind of acts, not acceptable from the point of view of the rules of professional ethics, might be a source of harsh financial consequences for companies, which make reductions in order to counteract adverse occurrences on the financial markets. These risks, even though proven to exist, are not impossible to be minimized or even to be avoided, if proper legal mechanisms are applied.

In terms of opposing to potential risks of stealing intellectual property, preliminary considerations should focus on undertaking specific protective measures, like for example:

• protective audit of personal data with a focus on assessment of meeting criteria for making processing and storage of these data lawful, under both EC and national rules, as well as international standards; application of proper procedures might allow the company to limit the risk of disclosure of sensitive data as well as to avoid  legal consequences for breach of the relevant provisions of law;
• optimizing the rules on access to data under protection and the regulations on circulation of these data within the organizational structure of the company (especially the rules on the use of data processed in computer systems, on the usage of global means of communication during the process of rendering services, connected with access to restricted data, etc.); clear rules pertaining to circulation of data in any company facilitate supervision over their flow, and expose potential risks – these enable to apply proper mechanisms minimizing negative consequences of the said circulation ;
• introducing additional terms to employment contracts or other types of contracts for performance of work with an aim to make use of the legal mechanisms included in these terms in case of unauthorized disclosure of protected data; suggested terms concern i.a. properly drafted clauses on ban of competitive employment after termination of the employment contract with respect to the employee who has access to intellectual property of the company under protection
• organizing courses on protection of data and suitable practices in protection of data for employees and executive directors.

The increased level of risk of stealing intellectual property affects especially companies who render international and national outsourcing services.  In recent years, due to costs-saving approach, many significant companies have decided to situate some of their departments in the region of Central and Eastern Europe, including Poland. In connection with corporate structure of entities ordering specific services, it might happen that persons employed in national branch offices could gain access to intellectual property under protection of considerable value.  That requires special care as regards standards of protection. In the times of crisis, the issue of minimizing the risks associated with stealing intellectual property should constitute the determinant factor of effective management of bases. Undertaking the proper activities in the sphere of protection of data under consideration, as well as preparation and bringing into effect certain standards of management and circulation of data  in the structure of outsourcing company, might be a vital factor influencing the decision as to the choice of this company as the company rendering services connected with processing and usage of protected data. Therefore, proper legal mechanisms allowing for creation of the safe employment environment and maintenance of the minimal risk associated with potential unauthorized disclosure of somebody else’s intellectual property are tend to become more  and more decisive factor in the issue under consideration.

Automotive Industry in Crisis – Proposals of Solutions – Report of the Polish Automotive Industry Association

Tatomir Tomasz, the Director of the Department of Environmental Protection, is one of the experts who prepared the PAIA Report entitled “Automotive Industry in crisis – proposals of solutions.” The document was sent to Members of Parliament, Senators and business lobby groups, which have influence over the automotive industry in the State.

Report of the Polish Automotive Industry Association is available at: www.chwp.pl

Press Law and Intellectual Property Protection on the Internet

Mr. Bogdan Fischer, PhD, partner in Chałas & Partners Law Office has participated in a meeting of the Polish Chamber of Press Publishers, where he gave a lecture titled: “Press Law and Intellectual Property Protection on the Internet”.

Our expert focused on such issues as Internet journalism, registration of the press on the Internet, permitted public use, finally the copyright and related rights on the Internet.

Adam Krause has joined Chałas & Partners Law Office as a new Partner

Attorney at Law Adam Krause is a new Partner of Chałas & Partners Law Office. Prior to joining he has handled logistics and transport cases and also specialized in corporate law  and legal assistance in disputes between shareholders. He has appeared before the court as a legal representative in commercial disputes, civil law disputes and labour law ones. He has led a number of projects relating to the commercialization and privatization of state enterprises. He is the author and co-author of publications pertaining these topics.

Adam Krause has been an initiator and co-founder of the first Polish law office consortium – Consortio LEX and one of the founders and the President of Poland Eurojuris. At present, he holds a position of a Member of the Board of Directors of Eurojuris International.

Marketing Department Is Looking For The New Business Specialist / Account (Warsaw, Poland)

The Role:

This position would suit an ambitious New Business Specialist / Account ready to move into a more challenging role within the company with ambitious growth plans. The ideal candidate will play a very active part in managing marketing projects and come with buckets of energy and enthusiasm.

The candidate must have experience running campaigns across various markets and demonstrate a passion for excellent project management. They will be the main point of contact for clients and will be heavily involved in liaising with new clients.

Key Responsibilities:

Responsible for managing marketing projects. They will work within a team environment, be extremely process driven and report directly to the Marketing Director.

The New Business Specialist / Account will be responsible for:

• Driving revenue from their existing accounts
• Ensuring that all clients receive a superior level of customer service . They will also show the ability to add value to client relationships through their understanding of marketing activities & experience.
• They will be responsible for all aspects of project management; taking briefs, estimating costs and timings, managing budgets, scheduling resources, project management, regular reporting to the Marketing Director.
• Write case studies for completed work.
• They will need to develop close working relationships with all other departments, including those not based within the company. These relationships are fundamental to delivering the superior service that they will be judged on.
• From time to time they will be invited to work on new business pitches. This will be in addition to their usual duties and may require work outside of normal office hours.

Knowledge, Skills & Experience:

They will have either a traditional agency or an integrated agency background, with a strong hands-on experience and project management experience.

1. Experience in an established agency environment.
2. Experience working on accounts.
3. Working knowledge of acquisition disciplines. In particular knowledge of marketing and events.
4. Understanding of commercial reporting.
5. Ability to work as an integrated part of the team, managing issues as they arise and fostering enthusiasm across the company.
6. Software packages: Word,  Excel, PowerPoint.

• Holidays commence at 20 days
• Contributory pension scheme – base + employee contribution minimum of 3%
• Membership of Private Medical Insurance for employee

Some benefits are only available to employees once they have successfully completed their probation period or a qualifying period

Please ensure the following information is provided – failure to provide this information will delay the review process

- CV Maximum of 2 pages with a cover note
- Cover note to contain following information:
o Location where you reside
o Current salary and salary expectation

Please contact:
Ms Elwira Nowakowska
Marketing Director
enowakowska@chwp.pl

Liability of a Pharmaceutical Company Towards Patients For Clinical Trials

Clinical trials play an essential role for the verification of safety and efficacy of a medicinal product before it enters the market and is broadly accessible for patients. Therefore, the value of clinical trials cannot be overestimated, as they considerably facilitate risk – benefit balance assessment for a new medicine, or reduce the risk of adverse reactions appearing when a product is taken by a larger number of patients. At the same time, it goes without saying that it is necessary to ensure safety of the participants of clinical trials. It is then interesting to consider the scope of liability of a pharmaceutical company towards patients.

According to art. 37j of the Polish Pharmaceutical Law dating from September 6, 2001, a sponsor (in most cases it is a pharmaceutical company) and an investigator (so a doctor responsible for the conduct of a clinical trial) are liable for damages caused by the trial.

Taking into account the fact that a patient does not enter into any contract with an investigator or a sponsor, the liability for damages suffered by a patient is a liability for a tort and not a contractual liability.

Here come the doubts about the prerequisites of the liability of the sponsor and of the investigator. With regard to Polish civil law, the liability for torts is based, in principle, on the prerequisite of a fault. Therefore, liability for damage occurs when the fact that resulted with this damage has been contrary to the legal order. What does this then mean for the liability of a pharmaceutical company which is a sponsor of a clinical trial? Well, if one considers art. 37j being based on the prerequisite of fault, then the pharmaceutical company is liable exclusively when an investigation taken within the framework of the clinical trail, which caused the damage to the patient, has been conducted contrary to legal regulations. To sum up, the compensation for damages suffered by a participant of a clinical trial would be due only when the trial has been conducted without respect to legal provisions, for instance when Good Clinical Practice has been not applied in the course of an investigation. In consequence, the pharmaceutical company would evade liability for damage proving that there was no fault in its activity. For example, when a clinical trial has been conducted correctly and the damage suffered by a patient is a result of an adverse reaction of an investigated drug, it would suffice if a pharmaceutical company proves that the patient was warned that the ADR may occur.

The law envisages however also liability for torts on risk basis, which is independent from the prerequisite of fault. The civil code provides several norms which introduce the liability on the risk basis to Polish law. They concern, in particular, situations of using, for personal interest, a subject or an instrument which carries a relatively high risk for a third party. In the light of the above considerations comes the question whether the liability of a pharmaceutical company is not on a risk basis?

The structure of art. 37j may suggest that the legislator intended to depart from the liability on a fault basis. The interpretation of this provision leads to the conclusion that it does not follow the basic principle of torts law: who, from his or her own fault caused a damage to another person, shall be obliged to give remedies. Instead of that, the liability of a sponsor and of an investigator seems to be on a risk basis. In consequence, the prerequisites of pharmaceutical company’s liability are as follows: fact of conducting a clinical trial and damage suffered by its participant which is in an adequate causal nexus with this trial.

There is no doubt anyway, that the liability of a sponsor and of an investigator is a joint one. It means that the participant of a clinical trial who suffered damage to health is free to choose who is to be claimed for damages. If a patient claimed one of these two persons: a sponsor or an investigator, the one who has been claimed is provided with recourse claim. It must be however noted that art. 37b of the Pharmaceutical Law envisages an obligatory third party insurance for both – sponsor and investigator.

National Conference of The Nuclear Energy Renaissance in 2009 – ‘Why The Nuclear Power?’

Maja Czarzasty, Director of the Energy Department of Chałas and Partners Law Office has been a speaker at the National Conference on the Nuclear Energy Renaissance in 2009 – ‘Why The Nuclear Power?’ under a honorary patronage of the Ministry of Economy which has taken a place during the International Fair ENEX 2009.

The conference has brought together representatives of many different economic, industry and energy sectors. The scope of the conference focused on the challenges for the Polish nuclear energy.

Maja Czarzasty gave a lecture on the need to change the Nuclear Law.

CO2 Strategies

Tomasz S. Kiercel, Director of the Department of Environmental Protection was a speaker at the VII Conference – CO₂ Strategies, which brought together representatives of many different sectors: economic, industry and energy. The conference focused on the challenges for the Polish economy and energy sector resulting from the implementation of the obligations UE climate protection package. Tomasz S. Kiercel gave a lecture on the new regulatory framework for emissions trading:

-a project act about the management emissions scheme,

-a project act about the management emissions SO₂ and NOx from large combustion plants.

The lecture of our expert was met with a great interest of  the worthy audience. The speaker’s opinions and observaons were wide acceptance among the participants.