Law & Society

For many, especially non-experts on taxation, tax time can be daunting. Should you go for the standard deduction or itemize? For many, especially non-experts on taxation, tax time can be daunting. Should you go for the standard deduction or itemize? If you itemize, what can you claim? Here's a look at what tax deductions are, some common ones you may be able to take, how to find out if you qualify, and how to benefit from them. You can always consult an accountant if you want additional detailed IRS assistance.

Tax deductions are expenses that are subtracted from your gross income, making your total taxable income, and subsequently your tax due, less. Expenses incurred from a number of reasons can be considered as tax deductions.

The two kinds of deductions are standardized and itemized deduction. A standard deduction is based on your civil status: single, married, head of household, and is a fixed dollar amount subtracted from your gross income. An itemized deduction, which will be the central theme of this article, is a corresponding amount for certain expenses incurred. When in doubt as to which type of deduction you are eligible for, IRS and private assistance are always available.
You can also take advantage of tax credits, which can be obtained from a myriad of reasons like having children, adopting children, paying college tuition, earned income tax credit and energy efficiency. Unlike tax deductions, these are taken from your total taxable income. To determine if you are qualified to claim for certain tax credits, please refer to the instructions in the tax forms and the IRS website.

Outlined hereafter are some of the common tax deductions:

* Professional and business-related association fees
* Costs of job-hunting
* Job agency fees
* Professional books and magazines
* Union fees
* Work clothes or uniforms
* Expenses for the house and office
* Alimony and other legal fees to collect taxable income
* Tax advice and tax preparation fees
* Moving to a new job expenses
* Fees for IRS set-up and administration
* Other legal fees
* Donations to charitable institutions
* Business liability costs and insurance premiums
* Tuition fees for job-related classes

When you're computing your taxes, it is useful to have IRS assistance so you do not overpay your taxes. Should you opt to do it on your own, read the IRS booklet, utilize the online tax preparation service and get in touch with the IRS for assistance in your itemization.

A number of options are available in knowing if you qualify for these deductions. The instruction booklet is among these methods. In addition, the online tax preparation service guides you as you go through the process. Most importantly, a professional on taxes would be useful in this situation.

These deductions and credits are lawful options of minimizing your taxes due and increasing instances of refund. In actuality, many have paid more than they should, so you must be more than careful in calculating for your taxes. IRS help, expert opinion and booklet instructions are some of the forms of assistance available.

The real estate crisis reaches every strata of society, including financially stable individuals and companies. There is no one-size-fits-all approach, however, and affluent clients have unique concerns that have been largely over-looked by the media and governmental programs. This article discusses strategies for resolving mortgage problems for people who have good reason to worry about deficiency judgments, credit rating, and public image. August 2010

I am a Florida attorney whose firm focuses heavily on resolving problems with distressed properties. My associates and I have been defending foreclosures and facilitating loss mitigation right from the start of the economic downturn, and we have seen many interesting developments along the way. Just to name a few, we have seen courts reacting wildly to the incredible influx of foreclosure suits, governmental attempts to prod lenders into sharing responsibility for the situation, and homeowners running the full gamut of emotions.
What we are seeing more often in recent months are clients who have significant assets and six-figure incomes coming to realize they need to address their property issues. Almost invariably, investment properties have nowhere near the value of their loans and, more often than not, rental income is not sufficient to cover the mortgage payments. Successful people know how to read the writing on the wall and it seems their earlier moral misgivings, etc. are starting to take a back seat to business realities. Notwithstanding, they have certain concerns because they do have something to lose.


Deficiency Judgments

Essentially, when a property is foreclosed, sold via short sale, or surrendered through a deed-in-lieu-of-foreclosure, the lender has a statutory right to pursue a deficiency judgment against the borrower for the difference between the market value of the property and the amount of the loan. In 2009, it was very rare to see lenders exercise this right, probably, because they felt it would be throwing good money after bad to spend more money on attorneys only to end up with a judgment that could not be enforced. After all, many homeowners losing their properties were judgment-proof (i.e. no assets to attach and wages too low to garnish). Also, declaring Chapter 7 bankruptcy discharges deficiencies, and those homeowners not already planning to declare bankruptcy certain would if confronted with a large deficiency.

In 2010, so far, we are still not seeing lenders go after deficiency judgments, but we are out of the woods yet. The alternative to pursuing the deficiency is for the lender to take the loss and issue a Form 1099, which causes the deficient amount to be imputed against the homeowner as income for tax purposes unless some exception applies. The U.S. government has helped out in this area by passing the Mortgage Debt Relief Act, which protects homeowners against such tax implications if the deficiency is on the primary residence. Note, however, this does not apply to investment properties.

Accordingly, the prospect of a deficiency judgment is not such a big concern for the homeowner that is in dire financial straits. By contrast, it is a serious concern for financially stable homeowners, especially those for whom bankruptcy is not really an option.

For one thing, affluent homeowners are much more attractive targets for lenders considering a deficiency action. I do not pretend to fully understand the mind of the banking industry, so some of this is speculation. Still, it does stand to reason that a lender would be more inclined to pursue the deficiency where there is a real chance of collecting. Also, affluent homeowners tend to have investment properties, which are usually the ones for which they are seeking a solution. That means, even if our firm is able to prevent a deficiency action, the Mortgage Debt Relief Act will not obviate the tax implications. So, what is the answer?

First, you are still better off with the 1099 than with a deficiency judgment. I am not an accountant nor a tax attorney, so I will not go into some of the techniques they have for reducing or eliminating the tax implications of forgiven debt. Just know that there are some things that can be done even when the deficiency is on an investment property. In reality, even in a worst case scenario, where you have to pay taxes on the full amount of the deficiency, that is still only a fraction of what a deficiency judgment would cost. So, avoiding the deficiency judgment is definitely step one. How do we do that?

The short answer is, “Don't be a push-over.” Deficiency judgments do not happen automatically. The lender has to initiate an action and then deal with all the defenses, counter-arguments, etc. that an experienced foreclosure defense attorney will know how to present.

So, avoiding the deficiency judgment is definitely step one. How do we do that? The short answer is, “Don't be a push-over.”

Since its invention in 1952 as safety cushion for automotive use, airbags have evolved into a mandatory vehicle safety device with federally imposed safety standards. In case of collisions or accidents, airbags were designed to deploy to prevent vehicle occupants from getting seriously injured. Since its invention in 1952 as safety cushion for automotive use, airbags have evolved into a mandatory vehicle safety device with federally imposed safety standards. In case of collisions or accidents, airbags were designed to deploy to prevent vehicle occupants from getting seriously injured.

To date, while airbags have certainly proven to be effective -- the National Highway Traffic Safety Administration (NHTSA) has pegged that it has saved 28,000 lives since Jan. 1, 2009, airbag accidents can also cause injuries.

Inadvertent airbag deployment, failure to deploy during crashes, and explosive airbags can cause injury or death instead of avoiding it. Further, the NHTSA has also discovered that aftermarket equipment such as laptop computers or mini-TVs that are mounted to the panel in front of the airbag deployment site can turn into projectiles and cause moderate or serious injury.
Most airbag accident injuries include the following:

• Skin abrasion
• Hearing damage (from extremely loud deployment explosion)
• Head injuries
• Eye damage
• Broken nose
• Broken fingers
• Broken arms and hands
• Broken ribs
• Facial lacerations

Also, since airbags are inflated using hot gas, these may cause thermal burns upon skin contact. Most airbag injury burns are deep-dermal or second degree burns that are often located on the occupant’s arms, face, and chest.

Further, airbag accident injuries have proven to be fatal, especially for children and short and elderly persons. From 1990-2008, more than 290 deaths were caused by frontal airbags more than 90 percent of whom were children and infants, because they were unbelted or had their heads close to the deploying airbag.

Side airbags also had their fair share of injuries as the NHTSA has reported that from 1995-2008, four people were seriously injured by it. One was an elderly male driver suffered multiple rib fractures, and 2 middle-age female drivers who suffered injuries to the spleen and ribs. An unrestrained 3-year old sitting in the front seat also reportedly suffered minor facial skin lacerations from the side airbag cover.

To prevent airbag injuries, here are some safety tips to take note of:

• Drivers should sit with their chests at least 10 inches away from the center of the steering wheel to avoid being too close to the airbag in case it deploys.
• Pregnant women should avoid driving as much as possible. If ever, a combination of properly positioned safety belts and air bags would offer the best protection.
• Infants and children in rear-facing safety seats should never sit in front to avoid putting their heads too close to the frontal airbags. Proper belting and positioning of your child is important to keeping him safe.
• Children should avoid leaning against door areas where the airbag is stored because the force of its deployment can be harmful. Children should not be allowed to lean against a door or lie down with the heads near the door or the sides.

Should all these reminders fail and you or a loved one sustained airbag accident injuries, it is likely that there is a defect that may have caused your car’s airbags to be more harmful than helpful. Consult with a car accident attorney to find out possible remedies to your injuries.

The State Council of the People’s Republic of China issued the new Detailed Rules for the Implementation of the Patent Law (the Detailed Rules) on January 9, 2010. The amended Detailed Rules causes some changes regarding the legal rights of service invention employees. Those changes are summarized as:

1. It provides three methods to determine the employees’ rights.
2. The applicable range to incentive compensation standards is expanded from the state-owned units only to all types of entities.
3. It improves the award amount for inventors or designers of service invention creations.

According to the new regulations, service invention employees have three rights in total, namely the rights of being rewarded, remunerated and named. This article is aimed at looking at these developments and discussing how they can be handled in practice by employers and employees.

Definitions on Terms about Service Invention

Service inventions are those made in execution of the tasks of the entity to which he/she belongs, or made by him/her mainly by using the materials and technical means of the entity. They include those made in the course of performing their own duties, in execution of any task, other than their own duties, which were delivered to them by the entity, or created within 1 year from their retirement, change of work from original unit or termination of labor, personnel relationship, provided that the invention relates to their own duty or to the other task distributed to them by the entity to which they previously belonged.
Meanwhile, "The entity to which he belongs" mentioned above may be a temporary entity for which the person works. "Material resources of the entity" mentioned above includes the entity’s money, equipment, spare parts, raw materials, or technical data which are not to be disclosed to the public. In addition, Article 13 of the Detailed Rules provides that:
"Inventor" or "designer" as mentioned in the Patent Law means any person who has made creative contributions to the substantive features of the invention-creation. Any person, who is responsible only for organizational work, or offers facilities for the use of material resources or takes part in other auxiliary functions in the process of accomplishing the invention-creation, shall not be an inventor or designer.

Parties’ Agreement, Business Rules and Legal Provisions

According to the Detailed Rules, the methods and the amount of the rewards and remuneration for an invention-creation may be agreed by the units and the inventors or designers, or may be provided for in the business’ rules. Where none of them exist, the legal standards in the Detailed Rules will be applicable.

Firstly, a contract claim, being a claim for rewards and remuneration to the units under the agreements established by the parties by the inventors or designers, as the employers have refused to pay. According to the principle of autonomy, the amount of rewards and remuneration in the contract claim is not subject to statutory restrictions on the amount, so the parties may agree to a higher or lower amount than the statutory standard. It must be noted that Article 16 of the Patent law demands that employing units reasonably reward and remunerate inventors or designers, thus it would appear that a no-reward or no-compensation rule will be considered invalid by a court. Discussions with the relevant authorities have led us to believe that employment rules that state that "No rewards or remuneration are to be paid to an employee for any invention made by that employee" or "The employee's salary includes a component for invention reward and remuneration" will be held to be invalid.

Differences Between the Reward and Remuneration Provided by Law

According to laws and regulations, both rewards and remuneration are the material rewards to the inventor or designers who completed the inventions. However, their difference is quite obvious except that both are the statutory systems.

At first, the times of obtaining them are different. Award shall be paid by the units within three months since the date of the announcement of patent. But remuneration shall be rewarded to the inventor or designer after the implementation of the invention, in other words, within the period of validity every year.

Rewards and compensation are paid in different ways under the statutory scheme, subject to an agreement to the contrary. In general, a reward is paid by a one off payment. Remuneration is paid in installments over the life of the relevant patent.

The statutory amount of the reward and remuneration are different under the scheme as well. The reward has been increased from RMB2000 to RMB3000 for a standard patent invention inventor and from RMN500 to RMB1000 Yuan for utility models and designs - the percentage for the remuneration has been maintained as being, not less than 2% from the operating profit from the invention or utility patent or not less than 0.2% from the operating profit from a design patent, and not less than 10% of the charged royalties.

Disputes and Remedies

Article 85 of the Detailed Rules provides that the patent administration departments may mediate certain patent disputes under the request of the parties – they include disputes regarding patent application rights and patent ownership, qualification disputes, reward and remuneration disputes and fee payment disputes.

If the parties refuse mediation or the mediation is not successful, the parties can take their case to the PRC courts. The Labor Tribunals would not appear to have any jurisdiction over these sorts of claims by an employee against their employer. The time limit for the lawsuit of a patent dispute is two years.

Conclusion

It is anticipated that the Chinese Patent Office will issue supplementary rules clarifying some vague areas regarding employee-inventor rights. Further, it is likely that the Supreme Court will issue rules regarding the litigation of employee-inventor disputes as well. Whilst employee-inventor claims have not been very prevalent in China, as the Chinese society continues to become more litigious and employees become more aware of their rights, we expect to see these sorts of claims reaching the courts more often. Employers would be wise to review their employment rules regarding employee-inventor rights to ensure that they are validly protected.

Loss of chance damages resulting from delayed diagnosis of cancer. A physician who delays diagnosing cancer can dramatically reduce a patient’s chance of recovery and survival. A doctor commits malpractice if his delay diminishes a patient’s chance of survival, even if the patient’s prospect for recovery is less than 50 percent. The Massachusetts Supreme Judicial Court last year adopted the “loss of chance” doctrine for medical malpractice cases. Following the SJC’s rulings in Matsuyama v. Birnbaum, 452 Mass. 1 (2008), and Renzi v. Paredes, 452 Mass. 38 (2008), cancer victims and their families can recover damages for negligent delays in diagnosing cancer that reduces or eliminates the victim’s chance of survival.

Under prior law, a patient suing a doctor had to prove it was more likely than not (i.e., more than 50 percent likely) that the doctor’s malpractice caused the patient’s injuries. This meant a cancer victim who had less than an even chance of survival prior to the negligence was barred from any recovery.
However, as the SJC said in Matsuyama, the “probability of survival is part of the patient’s condition. When a physician’s negligence diminishes or destroys a patient’s chance of survival, the patient has suffered real injury. The patient has lost something of great value: a chance to survive, to be cured, or otherwise to achieve a more favorable outcome.”

In the Matsuyama case, Kimiyoshi Matsuyama, a 46-year-old Massachusetts man, died of stomach cancer that was overlooked by his physician. Over a number of years, Matsuyama had recurring complaints of severe gastric pain and heartburn. But his doctor did not order any tests or a biopsy to accurately ascertain the man’s condition. The doctor initially diagnosed gastrointestinal reflux disease, and recommended over-the-counter medications.

Eventually, the doctor suspected gastritis and ordered a test for a bacteria associated with gastric cancer. Even though the test came back positive, the doctor did not follow up with an endoscopy or a biopsy to definitively confirm or rule out his preliminary diagnosis of gastritis.

When Matsuyama’s condition worsened, the doctor ordered further tests that revealed a cancerous growth in the man’s stomach. Matsuyama died within five months. His surviving wife and son sued the doctor for his delayed diagnosis of stomach cancer. After trial, the jury awarded the wife and son $160,000 in damages for Matsuyama’s pain and suffering, and $328,125 for his loss of chance of survival due to the doctor’s malpractice.

Calculating loss-of-chance damages can be tricky. It boils down to assessing the proportion of overall damages that is attributable to the doctor’s negligence.

To illustrate, let’s assume the following: A jury finds that the full wrongful death damages is $600,000; the patient had a 45 percent chance of survival prior to the malpractice; and the malpractice reduced the patient’s chance of survival to 15 percent. This means the doctor’s malpractice reduced the chance of survival by 30 percent. The total damages of $600,000 is multiplied by 30 percent, leaving loss-of-chance damages of $180,000.

A doctor’s malpractice can cause conscious pain and suffering. These damages in medical malpractice cases are treated the same as pain and suffering in any personal injury case, which means they are not part of the proportional damages calculation used for loss of chance, and are awarded in full.

However, there is a second kind of pain and suffering that accompanies the ultimate injury in the case, i.e., dying of cancer. This category of pain and suffering would more likely than not have occurred even absent the physician’s negligent conduct. The physician may be liable only to the extent his negligent conduct diminished the victim’s likelihood of avoiding death, which means this kind of pain and suffering is subject to the proportional damages calculation.

If you, or a loved one, or a friend is suffering from cancer, and you think the treating physician delayed diagnosing the cancer, I am available to discuss your legal options, including the possibility of obtaining loss-of- chance damages.

The concept of a trust is an arrangement whereby property is transferred from one person (the Settlor) to another person (the Trustee) who holds the property for the benefit of specific people (the Beneficiaries). A Trust Deed sets out the terms and conditions under which the Trustees hold the trust assets. It also outlines the rights of the Beneficiaries. The concept of a trust is an arrangement whereby property is transferred from one person (the Settlor) to another person (the Trustee) who holds the property for the benefit of specific people (the Beneficiaries). A Trust Deed sets out the terms and conditions under which the Trustees hold the trust assets. It also outlines the rights of the Beneficiaries.

A trust is not dissimilar to a will except that assets are transferred to trustees during lifetime rather than assets being transferred to executors on death. The Trust Deed is comparable to the will.
Those unfamiliar with the trust concept may be concerned about transferring ownership of their property to a Trustee. This concern can be alleviated if the distinction between legal and beneficial ownership is properly understood and the trust is governed by sound law enforced in a reputable jurisdiction.

Legal and Beneficial Ownership

For formal legal purposes the Trustee is recognised as the legal owner of the property. The persons who have the benefit of the property are the Beneficiaries. These are important distinctions. The Settlor may retain an interest in the trust – for example, be an actual or potential beneficiary – but this can have tax disadvantages for the Settlor. The Trustee must remain independent and exercise proper control over the trust property. If the person who sets up the trust continues to exercise control over the trust assets the trust may be rendered void.

Accountability of Trustees

The law imposes strict obligations and rules on Trustees. A Trustee may not derive any direct or indirect advantage from a trust, unless expressly permitted by the trust deed. For example, a professional Trustee may charge for services but these charges – and the basis for them – must be fully disclosed and agreed with the Settlor.

Duty of Trustee to Obey Trust Documents

The Trustee is required to obey the directions contained in the trust deed, regarding who is entitled to what and the management of the trust property. Trustees are also subject to very strict rules governing their use of power and discretion.

Fiduciary Relationship of Trustee

The Trustee has serious and onerous obligations and is subject to the following rules:

No private advantage
A Trustee is not permitted to use or deal with trust property for direct or indirect private advantage. If necessary, the court will hold the Trustee personally liable to account for any profits made in breach of this obligation.

Best Interests of Beneficiaries
Trustees must exercise all their powers in the best interests of the beneficiaries of the trust. They must disregard the interests of others – including the Settlor.

Act Prudently
Trustees must act prudently in the management of trust property. If, by failing to exercise proper care, the trust fund suffers loss, the trustee will be liable for breach of trust. Professional Trustees are expected by the courts to exercise a high standard of skill and failure to do this will constitute a breach of trust for which the Trustees will be liable to compensate the beneficiaries.

Advantages of a Trust

Trusts are a powerful tax-planning tool but they also have many other uses that are of equal if not greater importance. A properly drafted and managed trust can be advantageous for any or all of the following:

Asset Protection
Trusts can be one of the most effective ways to protect assets, as assets transferred to a trust no longer form part of the Settlor’s property. This means the assets cannot normally be seized if the Settlor gets into financial difficulties, for example, as a result of bankruptcy or divorce.

The rules of many onshore jurisdictions may, in certain circumstances, order the trust assets to be transferred back to the Settlor. This could arise if a creditor is able to prove that the Settlor transferred assets into trust with the intention of avoiding a current or future liability, or if the liability arose within a statutory period after the transfer into trust.

To overcome this problem many offshore jurisdictions have enacted legislation creating the ‘Asset Protection Trust’. This protects assets transferred into trust as long as the Settlor is solvent at the time of the transfer and does not become insolvent as a result of it. For maximum security it is important to set up a trust in an offshore jurisdiction that has enacted this type of legislation.

Tax Planning
A correctly structured and administered trust may produce substantial savings in income tax, capital gains tax and inheritance tax/estate duty.

Avoiding the Expense and Delays of Probate
In most common law jurisdictions an individual’s estate must go through the probate procedure. This can cause delay, expense, publicity and upheaval. By establishing a trust, probate can be avoided. Death has no effect on the trust property, which will continue to be held and managed in confidence by the Trustee.

Confidentiality
Proving a will is a public procedure and therefore entirely unsuitable for those wishing to keep details of their assets confidential. The only legal alternative form of asset transfer is via a trust. This would generally save estate duty and keep the trust assets confidential.

Avoiding Forced Heirship
Forced heirship is a particular problem in continental Europe and other civil law jurisdictions, as well as in countries of Islamic tradition. A trust can be used to overcome this problem if care is taken to select a jurisdiction for the trust that has an appropriate trust law.

Estate Planning
Many people prefer to make more complex arrangements for the distribution of their assets. These might include providing a source of income for a widow or making provision for the education of children. A trust is probably the most satisfactory and flexible way to make arrangements of this kind.

Protecting the weak
A trust allows a person to provide for those who may be unable to manage their own affairs such as infant children, the aged, or persons suffering from certain illnesses.

Preserving Family Assets
Preserving family assets, or increasing them, is often a motive for setting up a trust. An individual may wish to ensure that wealth accumulated over a lifetime is not divided up amongst the heirs, but retained as one fund. The fund can then accumulate further with provision for payments to members of the family as necessary, while preserving some assets for later generations.

Continuing a Family Business
A person who has built up a business will often want to ensure that it continues after their death. If the company shares are transferred into a trust prior to death, the unnecessary liquidation of the family business can be prevented.

In a situation where family members have little business experience, the Trustees could be instructed to retain the shares, keep the company running, and provide payment to members of the family from dividend income. The terms of the trust will ensure that the individual’s wishes are observed.

Gaining flexibility
A discretionary trust can provide a structure that is capable of rapid change as circumstances demand.

Jurisdiction

A trust can be set up in many jurisdictions – both offshore and onshore – but it is important that the jurisdiction:

has a strong tradition of enforcing trusts
has an English Common Law system
has an established reputation for trust business
has enacted modern legislation which embraces the newer concepts of trusts – particularly asset protection imposes low or no tax on the trust
Only a small number of jurisdictions are able to offer all the important elements, such as Netherlands Antilles, Cayman Islands, British Virgin Islands, Gibraltar, the Turks & Caicos Islands and the Isle of Man.

Disadvantages and Solutions

Irrevocability
It is not correct that trusts cannot be revoked. Trusts can be made revocable, but this usually has tax, estate duty, asset protection and stamp duty disadvantages. Revocability should be discussed when the terms of the trust are considered.

Loss of Control of Property
There are many people who like the idea of a trust but want to continue to exercise effective control over the trust assets, despite the transfer to the Trustees. If too much control is retained, however, the person who set up the trust may be regarded by law as the owner. This may make the trust invalid. The following are devices that may reassure the Settlor about the concept of a trust and the transfer of assets:

Memorandum of Wishes
It is common for the wishes of the Settlor to be noted in a written memorandum. This outlines how the assets would have been managed had the Settlor retained ownership. The wishes of the Settlor are not binding, but in practice most reputable Trustees would follow them unless a change of circumstances makes it disadvantageous to the beneficiaries to act in that way.

Protector
When setting up a trust it is possible to appoint a protector who has some degree of control over the trust property. We recommend limiting the protector’s powers to vetoing the decisions or actions of the Trustees, rather than having power to force the Trustees to act in a particular way as it is important to avoid the protector being considered a quasi-Trustee and possibly causing tax disadvantages.

It is usual for a trusted friend, relative or professional adviser of the Settlor to be appointed protector. It is also becoming increasingly common to use the services of a professional trust company.

Two Tier Company and Trust Structure
Greater flexibility can sometimes be achieved by having the underlying assets owned by a company whose shares are owned by a trust. The Settlor may act as the director of the company and therefore exercise day-to-day control over the underlying assets with minimal need to refer to the Trustees.

This two-tier structure may have tax and other disadvantages where the director of the company is resident in a high tax country but can be used to good effect in certain situations.

Joint Trustees
A trust could be structured so that there are joint Trustees, with the agreement of both needed in order to take any action. The second trustee could be the Settlor or a corporation controlled by the Settlor. There may be negative tax or other consequences resulting from such a structure if the Settlor is resident in a high tax jurisdiction but this may be a solution worth considering.

Costs
Many people believe that the costs of running a trust are prohibitive. But the level of fees charged by independent trust companies generally makes the advantages of setting up a trust available to those with even relatively modest estates. Non-institutional trust companies offer a more personalised service and also benefit from the fact that they are truly independent.

This article aims at providing its readers with basic information on the validity conditions of promissory notes under Turkish law and the relevant execution proceedings. Thousands of commercial agreements are executed every day, most of the times with at least one party having a payment obligation. Although the said party may have the option to fulfill this obligation by paying cash on the due date, other means of payment such as negotiable instruments are also frequently used. From a Turkish law perspective, this is because negotiable instruments are not just payment tools. Their ease of transferability and most importantly their independence from the underlying contractual relationship between the parties of the relevant transaction make them the preferred choice for a number of other reasons.

This article is intended to provide its readers with general information on the validity and enforceability of promissory notes (or bonds) under Turkish Law, which are among the three types of negotiable instruments (kambiyo senedi) stipulated in the Turkish Commercial Code (the TCC). A concise explanation on the special execution proceeding, specified in the Turkish Execution and Bankruptcy Law No.2004 (the EBL) with regard to the negotiable instruments, is also provided.
One should bear in mind that what is said in this article on the validity and enforceability of the promissory notes may be subject to the review of further documents including the up-to-date Articles of Association and the signature circular of the drawer, in case it is an entity. Accordingly, no specific conclusions should be inferred from this article as each case should be separately analyzed.

1 Mandatory contents

According to the TCC, a promissory note, in order to be valid and binding as a negotiable instrument, must fulfil the following conditions;

(i) The expression "promissory note" must be included in the text (in case the promissory note is produced in a language other than Turkish then the equivalent of the same expression in that language must be included),

(ii) There must be an unconditional undertaking to pay a specified amount of money,

(iii) The date of maturity must be stated on the promissory note,

(iv) The place of payment must be stated on the promissory note,

(v) The title/name of the entity/person to which the payment shall be made (i.e. the beneficiary) must be stated on the promissory note,

(vi) The date and place where the promissory note is issued must be stated on the promissory note,

(vii) The signature of the drawer must appear on the promissory note.

A promissory note not fulfilling all of the conditions above would be invalid, except for the following cases:

• In the event that the date of maturity is not stated, the promissory note shall be paid "when seen" meaning that the payment shall be made when the beneficiary submits the promissory note to the drawer for payment.

• In the event that the place of issue is not stated, the promissory note shall be deemed issued at the place mentioned next to the drawer's title/name. In addition, in case the place of payment is not stated, the place of issue shall be deemed to be the place of payment.

In practice, where more than one promissory note are issued with different dates of maturity, a clause, providing that all promissory notes shall automatically become due at once in the event of the non-payment of any due promissory note, is inserted in each.

2 Independence from the underlying contractual relationship

There is always an underlying relationship between the drawer and the beneficiary of a certain promissory note. In accordance with Turkish law, a promissory note is a negotiable instrument issued, in principal, independently from the underlying relationship between the drawer and the beneficiary. To illustrate this principle by way of an example: Let us assume that Company A sells goods to Company B and Company B issues a promissory note to the order of Company A for the payment of the goods. In case Company A fails to fulfil its obligation under this sales agreement (e.g. delivers defective goods or is in default) Company B can not refrain from paying the amount specified on the promissory note on its date of maturity, alleging that Company A breached the sales contract.

In the above example, if the drawer (i.e. Company B) opines that its debt, which is subject to the promissory note, does not have any valid ground, it can initiate a lawsuit (Menfi Tespit Davası) where the request would be the determination of the non-existence of the debt in question. On the other hand, if such debt is already paid then it can claim its re-collection from the creditor based on the unjust enrichment provisions. However, this claim can only be the subject matter of a separate lawsuit to be initiated by the debtor against the creditor, with the debtor bearing the burden of proof.

3 Avalization

In accordance with the TCC, avalization (aval) is the name of a legal transaction providing a third-party guarantee in favor of the beneficiary of a promissory note with respect to the due payment of the same. The person providing such guarantee to the beneficiary is called the "avalist". In order to be valid, any avalization must be indicated on the front side of the promissory note. The usual practice is that the avalist hand writes a very short phrase such as "For avalization" and puts his signature below it. Ideally, his name should also be indicated underneath.

The TCC states that the liability of an avalist arising out of a promissory note is the same as the drawer’s. Consequently, the drawer and the avalist are jointly and severally liable for the payment of the sum specified on the promissory note. The submission of a promissory note to its drawer and its subsequent non-payment is not a prerequisite for submission of the same to its avalist for payment. In other words, when the date of maturity comes, the beneficiary would have the option to submit the promissory note and request payment from either the drawer or the avalist. In practice, avalization is preferred when personal guarantees of the shareholders of a company are required. Namely, the company issues a promissory note as the drawer and its shareholders become the avalists of the said promissory note. This enables the beneficiary of such promissory note to demand its payment from either the company itself or its shareholders and to initiate execution proceedings against any or all of them.

4 Stamp duty and costs

Although not the case until very recently, negotiable instruments are no more subject to stamp duty. On the other hand, the main agreement, which constitutes the base for the underlying contractual relationship between the drawer and the beneficiary, may be subject to stamp duty. Accordingly, a tax advisor’s opinion would ideally be required for each specific case.

5 Execution proceedings

The EBL provides for two main types of execution proceedings regarding the collection of monetary debts from the debtors. There are (i) ordinary execution proceeding (applicable for all kind of debts) and (ii) execution proceeding for negotiable instruments, which is only applicable in respect of the debts arising out of a negotiable instrument. The execution proceeding for negotiable instruments is preferable to the ordinary execution proceeding because it facilitates the creditor's (the beneficiary of the promissory note) collection of his receivables within a shorter period of time and, more importantly, because the debtor's (the drawer of the promissory note) objection to the execution proceeding does not automatically suspend the proceeding as in the ordinary execution proceeding. A negotiable instrument also enables a creditor to obtain a preliminary attachment order from a commercial court, making him able to seize the debtor’s assets much more easily and thus preventing the creditor from engaging in fraudulent conveyance.
Below are the particulars of the execution proceeding for negotiable instruments.

6 Execution proceeding for negotiable instruments (EPNI)

Commencement

An EPNI is initiated by the creditor's application to the competent execution office and presentation of the negotiable instrument he holds. At this stage, the creditor will be required to pay execution office charges amounting to 0.5% of the disputed amount, subject to reimbursement from the debtor provided that the execution proceeding results in the creditor’s favour.

Once an EPNI is initiated, the director of the relevant execution office is obliged to inspect the negotiable instrument and check its validity. Once the director verifies its validity, a payment order shall be served on the debtor and/or on the avalist (if applicable) ordering them to pay the debt (normally the amount specified on the negotiable instrument), together with interest and the relevant charges to the execution office within 10 (ten) days from the order’s delivery date.

Debtor's objection

Contrary to the ordinary execution proceeding where a debtor's objection is made directly to the execution office, an objection to an EPNI must be brought before the competent execution court. The debtor must submit his objection petition to the execution court in 5 (five) days starting from the delivery date of the payment order. In his objection, the debtor may allege that the debt does not exist or has been paid, that the signature on the negotiable instrument is not his or raise any other kind of opposition. Such objection does not automatically suspend the EPNI. However, the judge (of the execution court) may decide the temporary suspension of the EPNI as a precautionary measure.

Proceedings before the execution court

These proceedings slightly differ depending on the nature of the debtor’s objection;

(i) In case of objection to the signature, a hearing shall be held and the signature on the negotiable instrument shall be examined by the execution court in accordance with the general provisions of the EBL.
If the execution court decides that the signature does not belong to the debtor then it accepts the debtor’s objection, which has the effect of suspending the EPNI (if it has not already been suspended by the execution court as explained above). In such case, the creditor has the right to file a separate lawsuit before the commercial court to claim his receivables based on other documents and arguments. Besides, if the execution court opines that the creditor acted in bad faith or in gross negligence when initiating the EPNI, it may impose on the creditor an indemnity amounting to at least 20% of the disputed amount and a penalty amounting to 10% of the disputed amount. In case the creditor files a separate lawsuit before the commercial court, the collection of such indemnity and penalty shall be postponed until the end of such lawsuit.

If the execution court decides that the signature on the negotiable instrument belongs to the debtor, the debtor’s objection is then dismissed and if the EPNI has been suspended before, it will resume. In such case, the debtor runs the risk of being penalised an indemnity amounting to at least 40% of the disputed amount and a penalty amounting to 10% of the disputed amount. However, the debtor has the right to file a separate lawsuit before the competent commercial court, which would postpone the collection of such indemnity and penalty until the end of the lawsuit.

(ii) In case of objection to the debt, the proceedings are quite similar to the ones applicable in case of objection to the signature. The aforementioned indemnities/penalties and the parties' right to file separate lawsuits before commercial courts are applicable with regards the objection to debt as well.

This article has been written for general information purposes only. Nothing in it should be relied upon when involved in legal matter/conflict. Specific advice should be sought depending on the particulars of each case.

As demand for energy increases in Turkey, investments in this sector is boosting with the help of the government. Incentives focus on renewable energy resources for obvious efficiency and environmental considerations and specifically wind energy investments had been very popular due to vast resources of Turkish geography. Therefore the government is trying to optimize financing conditions to attract more investment in the field. Overview
As demand for energy increases in Turkey, investments in this sector is boosting with the help of the government. Incentives focus on renewable energy resources for obvious efficiency and environmental considerations and specifically wind energy investments had been very popular due to vast resources of Turkish geography. Therefore the government is trying to optimize financing conditions to attract more investment in the field.
Although such target of the government is quite clear, the legal complexities are still experienced in the market since creditors are seeking better and less costly ways to secure their loans provided to energy investors in Turkey. The most commonly experienced financing model for wind energy investments is the financing of the wind turbines themselves of which securitization may be more complex then it seems.

Here I would like to summarize some available securitization alternatives for wind turbines that may be used for the purposes of a hypothetical where a wind turbine is financed by the creditor and the debtor will place such turbine in its energy production facilities.

Commercial Enterprise Pledges
Although there are certain and limited number of exceptions, regular pledge over movable properties such as machinery and equipment (that may include the turbines) is subject to a simple written agreement along with the delivery of the movable property (possession) to the borrower pledge right holder (creditor) as escrow (for safe keeping purposes). The only right that is obtained in return legally is the sale though legal execution methods and there is no way to keep the property as own for the borrower though the obligation to proof actual ownership shifts to the debtor if the property is re-sold. Regular movable pledges could be executed with minimum expenses, close to ignorable as effort to execute an agreement. However this pledge system is neither practical nor helpful in the targeted projects since it requires the transfer of the financed machinery, here wind turbines to the creditor as well. In order to find a solution for the delivery problem we refer to one of the exceptions of regular pledges above mentioned, thus called commercial enterprise pledge (‘CMP’).

A commercial enterprise is an organized work place registered in the Trade Registry on behalf of an individual or a commercial entity (company) where commercial or industrial activities are rendered. One company is entitled to have numerous commercial enterprises in different regions and accordingly may have more than one commercial enterprise. CMP is a pledge to be established with an agreement and registration of such agreement and the listed pledged property of the commercial enterprise to the Trade Registry. It has a specific law designating its details titled Commercial Enterprise Law No.1447 dated July 21, 1971 and also detailed regulations regarding CMP are also available. CMP’s could include the following properties of a commercial enterprise:

•Trade name and enterprise title;
•Machinery, equipment, tools and motorized vehicles currently available and designated for the purpose of the commercial enterprise;
•Patents, trademarks, models, designs and similar licenses which constitute industrial properties of the commercial enterprise.
The above is a restricted list and could not be widened to include any other properties of the commercial enterprises and a CMP could not exclude the trade name and enterprise title. Accordingly it is up to the parties’ discretion to include or exclude the other items listed and naturally wind turbines could be subjected to this regime. There could be more than one pledge registered on one commercial enterprise and for that reason they have a priority among each other subject to their date of registration.

In order to register a CMP to the Trade Registry, first a written agreement shall be finalized and be notarized at a Public Notary located at the district of the commercial enterprise. Following such stage, the notarized agreement shall be submitted to the Trade Registry and a CMP record is requested for registration. Only at the moment of registration, the CMP is deemed to be established. After the registration, the Trade Registry notifies any relevant institution, if necessary, such as the Turkish Patent Institute (for trademarks and patents) and to title registries, if the land and the building that the commercial enterprise is settled on is also owned by the owner of the commercial enterprise and since some machinery might also be subject to mortgage type collateral as well, as an extension of the real estate.

Accordingly a CMP provides the borrower a security right that could be executed through an execution procedure specifically designated for the purpose via Execution Offices of the Courts. Meaning that, once there is default, the CMP holder could apply to the Execution Offices for the sale of the assets included in the CMP and may recover its debt from the proceeds that are obtained by the Execution Offices after such public auction sales are realized. CMP holder also has the right to execute an additional immediate attachment (lien) over the properties of the commercial enterprise subject to CMP in order to create more pressure over the debtor before proceeding with the actual sales. However, any provision providing property rights over such pledged property in favor of the creditor are deemed invalid by law. Therefore, no forced assignment and/or transfer could be the issue either for CMP’s or for any other pledge or mortgage application in Turkey. This is a general ban over security rights established in Turkey, where the actual security right may not be enforced in a way to obtain property related rights (such as ownership or right of use) over the secured property.

It should also be noted that although there is no clear legal requirement, Energy Market Regulatory Authority (EMRA) requires a pre-notification of a CMP to be applicable to the assets of an energy facility.

Pledge of Movable Assets as Annexes of Real Estate
The movable properties such as machinery and equipment could also be made subject to a different type of real estate mortgage if they are deemed as annexed to the real estate (land or building subject to the type of real estate right registration) since their value is high and their attachment with the real estate is strong (perfectly easy to assume for a turbine in an electricity production facility).

This type of pledge is a very viable solution to the creditors since it provides collateral attached to the title registry which then provides 100% security over the movable property attached to the real estate and it is registered to the real estate’s title registration as a mortgage.

The main problem of a borrower for the purposes herein discussed regarding project financing for turbines is the ownership of the real estate property. If the land is owned by the treasury not the debtor (as experienced in the majority of the electricity production facilities) such transaction will not be possible to construct. It could only be realized for land and/or building registrations on behalf of the debtor which is rare to find.

A secondary obstacle for a mortgage-type pledge of a movable property is the cost and the execution difficulties. Cost is naturally higher since there is a title registry record in hand and the execution through sale of the real estate by Execution Offices with a public auction will again be the only enforcement method, which may even be harder and more costly to conclude, based on marketing considerations compared to a regular movable property pledge.

Pledge of Debtor’s Shares
Another available securitization method is the pledge over debtor company shares. This type of pledge provides the borrower again to execute sale through Execution Offices.

There are certain distinctions between two different types of capital company’s shares in Turkey. For joint stock companies (‘A.S.’) the company’s shares could be subjected to share certificates and the shares could be easily pledged either partially or totally with delivery of such certificates physically along with a written agreement. No specific registration is required and subject to the terms and conditions of the pledge arrangement the pledge may also be carried upon newly issued shares subject to capital increase.

For limited liable companies (‘LTD’) the share pledges have a different nature. There are no actual certificates representing the shares in LTD’s and any document that they are alleged to are only for simple but not legal representation. Accordingly, in order to pledge LTD shares, an actual registration of the pledge is required to be placed in the company share ledger along with the written and notarized agreement to be realized between the parties. Also for each partner of LTD, the pledge can not be divided into portions, meaning that the pledge for each partner’s shares shall be for all of those at once.

The pledge of company shares both in LTD and A.S. type companies do not provide the pledge holder any specific rights of vote for the company management unless it has any certain effect of minimizing the security collateral value of the shares.

Company share pledges are one of the most practical means of enforcing the debtor company to pay and might be one of the best methods of security with minimum costs. For pledges to be issued over company shares that hold EMRA issued licenses, EMRA requires prior written approval and therefore complicates the arrangement.

Pledges of Negotiable Instruments, Credits, & Bank Accounts
Pledges could be established as collateral to loans over the debtor’s any type of accrued or future credits from third parties and the negotiable instruments (such as checks, promissory notes, shares etc.) kept by the debtor.

This type of pledge is naturally dependent on the debtor’s actual financial status and may lose its practicality since the main credit of the electricity producer licensee is a government related credit from the State owned electricity conveyance or distribution companies and since such credits can not be made subject to any pledges without written consent from their State debtors’ therefore making it seemingly impractical for targeted projects.

A secondary type of claim or credit pledge is titled ‘account pledge’ and it could be established as collateral over the debtors’ bank accounts including the proceeds of such volume of assets kept in the bank by the debtor. This type of pledge is subject to an agreement between the borrower and the debtor and could be the easiest and less costly pledge as collateral. The down side is that it is also dependent on the current available accounts of the debtor and may only be subject to renewed deposits with renewed agreements.

Enforcement of License Transfer of Debtor
In order support the financing alternatives, the government also tried to regulate a very different method of securitization for energy deals. The second paragraph of the 5th Article of the Licensing Regulation for Electricity Market (‘Licensing Regulation’) published in the Official Gazette dated August 4, 2002 No.24836 issued by EMRA states that:

“The licenses can not be transferred under any circumstance. However, if the banks and/or finance institutions provide limited or irrevocable project financing to the licensee, as per the provisions of their loan agreements, the related banks and/or financial institutions may request from the Authority, together with their justification, that another legal entity be granted the related license provided that such legal entity assumes all obligations of the related licensee in line with the provisions of this Regulation. The legal entity proposed by such institutions shall be granted the related license on condition to comply with the obligations indicated herein.”

Theoretically, this paragraph of the Licensing Regulation is assuming that a loan agreement for a project financing to support the facilities of a license holder in Turkey shall include provisions of default and shall have a right constituted on behalf of the creditor to apply to EMRA with a new candidate to be provided a new license for the same site and facilities and accordingly to enforce a practical assignment of the project that is connected to the license and the loan to a new party that is to agree with the creditor. Therefore a sale-alike assignment of the project financing could be achieved to protect the creditors.

Unfortunately and although not impossible, this theoretical assumption has many legal obstacles concealed especially since there are different variations of energy investments that create facility related rights to licensees that may not be easily overthrown. Therefore if such securitization alternative is considered for an energy project, a more scrutinized legal assistance should be obtained beforehand.

Other Alternatives
Other than the above, Turkish legal system offers different types of other collateral securitization methods as well:

Sale of Movables by Reservation of Property Rights: This is a simple method that is not being executed commonly in Turkey due to its transactional costs. Mainly, this is a sale made with the reservation of the property rights of the movable property to a special registry in the Public Notary of the purchaser’s district. This registration allows the seller to claim for the property rights if the purchaser defaults. However, since the movable property could be easily sold to third parties with good will by the purchaser via simple possession assignment, thus the enforcement of the reserved property right becomes problematic for the seller, requiring a litigation action against the new owner and the purchaser. The cost exemptions are not applied since here the seller is not the creditor and if realized by the bank it may have certain implications closer to a leasing type financing. Therefore the registration cost may be higher than %0.12 per transaction due to tax, transaction fees and duties applicable.

Assignment of Credit: Although based on the idea of collateral that may be established with agreement, actually the assignment of a credit is not a pledge type transaction but a transfer of right in return of a consideration. However, it could be structured in a way that the debtor could arrange a credit (for instance from its’ parent company and may assign it to the borrower) thus without any direct effect on consolidated financial records of the debtor parties, the borrower may hold a certified right against the parent company. The credit to be assigned could be made subject to a promissory note or a similar negotiable instrument therefore making the execution less complicated and faster compared to any type of pledge.

Share Certificate Assignment (Escrow Type Transfer): This method is used by individual financers of the joint stock companies in Turkey. The share certificates of a joint stock company could be transferred by simple possession delivery and the transferee holder may execute a right of registration of the company ledger and/or may request voting rights based on the shares solely based on its discretion. This method might have been one of the best however, since transfers of shares of the companies with license is subject to the prior approval of EMRA, a reserve right based on a specific escrow type but actually enforceable transfer is not practical for energy related deals.

Others: Similar to any other system, Turkish legal environment allows for the establishment of collateral relationships to the most credible means of financing securities such as bank letter of guarantees, mortgages over valuable real estate, and co-signatories and/or third party commitments for loans (such as surety, guarantor, counter guarantees etc.). In addition all available security models may be duplicated for subsidiaries or parent companies of the borrowers.

Finally it could easily be stated that financing for energy investments could be secured by the use of various available methods. Naturally contacting diligent consultants locally may help to determine the best and less costly solution for the purposes.

It is important to remember that maintenance and contact are two separate issues which are decided by a court. Just because a parent is paying maintenance for a child, it does not automatically entitle that parent to see the child.

What is "care"?
Care (previously known as "custody") of a child entails more than a parent physically having the child with her/him and controlling the child’s everyday life. Care now places a duty on parents to maintain a good relationship with the child and promote the child’s well-being. This new concept is somewhat vague and the content of what exactly needs to be provided by parents will have to be decided by a court.
If we get divorced, what determines when my ex-spouse and I will see the child?
Since the Children’s Act 38 of 2005 came into force, both parents, upon divorce, will usually have parental responsibilities and rights in respect of a child born of the marriage. These rights and responsibilities include care, contact, guardianship and maintenance of the child.

When parents obtain a divorce, a court will make an order regarding the child. This order will include which parent the child will live with ("the resident parent") as well as the components of parental rights and responsibilities. This order will either be based on an agreement reached by the parents or, if no agreement can be reached, the court will determine what is in the best interests of the child and what is reasonable in the circumstances.

When can a child make his/her own decisions about the contact he/she has with the other parent?
A child can only make a decision in this regard when he/she reaches the "age of majority", i.e. 18 years old. However, a child that does not want to have contact with the non-resident parent cannot be forced to do so once he/she is of an age, development and maturity where his/her wishes can be taken into account.

The Children’s Act also states that before any person holding parental rights and responsibilities makes a major decision regarding the child, that person must consider the views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

“Major decisions” are any decisions affecting the contact of the child with his/her parents as well as any of the decisions which require the consent of both guardians, such as consent for a child to get married, be adopted, apply for a passport, be removed from the Republic, enter into a contract or for that child’s immovable property to be sold. Consideration must also be given to the views and wishes expressed by any person having parental rights and responsibilities, which is usually the other parent.

What if one parent wishes to take the child on an overseas holiday and the other parent refuses to let the child go?
A parent’s consent (if he/she is also a guardian of the child) is required to apply for a passport for a child and to remove the child from the Republic. If one parent unreasonably withholds his/her consent then the court can be approached. The court can be approached on an urgent basis and once the matter is heard, the court will make a ruling.

If the court rules in favor of the parent who wants to take the child on holiday, the requirement of consent from the other parent will be dispensed with and the court will consent for the child to travel.

If the refusing parent is found by the court to be unreasonable in withholding his/her consent then that party may be forced to pay the legal costs incurred by the other parent.

What if it is the non-resident parent's contact weekend and the child is invited to a party/play date but that parent will not allow the child to go?
There are various solutions in situations like these. The most obvious option being that the parents can swap their weekends so that the non-resident parent may have a contact weekend where there is no play date and can then spend the entire weekend with the child. This, however, only works if the divorced parents have a good relationship where it is possible to rearrange contact periods at short notice.

Alternatively the non-resident parent can refuse to let the child go to the party and there is not much that the resident parent can do about it. Although the best interests of the child are the most important consideration, a court will not entertain disputes regarding minor issues such as play dates. In this type of situation, if the child is old enough, he/she may make his/her own decisions about whether he/she wants to go to the non-resident parent for the weekend and miss out on the play date or if he/she wishes to remain with the resident parent and attend the play date.

The High Court of South Africa is the upper guardian of all minor children in our country. The best interests of the child are paramount and will always be considered above everything else.

The alarming rate of increasing divorce and family disputes arising throughout the Emirates is a matter of concern and calls for action.The challenges faced by UAE law, governing family matters & the respective authorities dealing with them are several. One among them is to gather to the needs of expats who chooses to initiate and finalize their disputes and differences in accordance with their respective, governing law.
Reconciliation in Divorce Proceedings Under the UAE Law

Article 98 of the Personal Status Law of UAE says that the Court will endeavor reconciliation before deciding disunion between spouses. The counseling body which conducts reconciliation at present has a lot of shortcomings. A non profitable organization in the capacity of an advisory body of genuinely interested professionals, under the supervision of the Court shall be recommendable which helps families to settle differences between them amicably, rather than lead them to separation. It would be a great comfort to the clients who approaches the reconciliation body, that advisors can speak their same tongue and understand the cultural and religious background and advice them accordingly. Such an organization must focus on the resolving of issues rather than advice the clients on approaching the legal enforcement authorities.

Families having problems within themselves especially women and children often do not have anyone to speak for them and help them resolve their matters. An advisory body bought under the Ministry of Health and Ministry of Social Affairs linked to the legal enforcement departments with a highly advertised hotline number and panel of professionals to hear and aid people, approaching them with family issues would be recommendable. Such body should be the first recommended authority, by governmental bodies like the police station and courts when people approach them for filing a divorce or file a petition for domestic violence.

Reforming Reconciliation Panel

Aim of the Panel is/are…
In order to serve the purpose and aim of the panel, it would be important that a team of expert professionals both men and women shall undertake a thorough review of the multi-religious background and their respective governing laws of the people, by drawing their own expertise during a meeting with the families. Care must be taken to provide expert help according to demand of the parties helping them to be comfortable and open up to the Adviser. At a minimum, the following participants should ideally conduct such a review:

a) UAE Lawyers
b) Experts in respective laws of the parties and religion
c) Marriage Councilors
d) Psychologists
e) Medical Practitioners
f) Translators
g) Social Workers

Such a panel of Experts should consist of professionals who have a prior experience in dealing with Family Disputes Counseling. The procedure and the decision should ideally work on voluntary basis in order to guarantee both parties compliance with the mutually agreed resolution, which has no legal implications or enforceability at the court of law, but could be used as an evidence should there be a need for resorting to a legally binding procedures at a later date. The procedure should not have any prejudice over filing a matrimonial case at Court. Such a body should rather work as an advisory body opting for settling issues of Family Affairs amicably. Of course the confidentiality of the details must be a matter of primary importance. The organization should have powers to incorporate the help of the respective legal enforcement departments for rendering proper and effective solutions to families who approach them.

With the help of dedicated professionals and the cooperation of the concerned authorities there is much promise of what we can do for tomorrow.

Essential divorce, child custody and support information for men at any stage of divorce. By Katherine A. Elias, Custody Evaluator and Licensed Professional Counselor. For a father, the most painful aspect of the end of a marriage (if it has been initiated by his wife) is the “loss of” the daily contact with the children. In most cases, especially when the children are very young, the mother will be awarded custody and the father becomes a parent that does not live with his children.

For men who were not involved in raising children during the marriage and saw them mostly on weekends, the situation after the divorce would not be so different. In fact, sometimes fathers are with their children more hours after a divorce than previously. It then becomes more important to invest in building or strengthening relationships and preserving the existing relationship with your children.
Today there is more equality between people, especially when both partners have careers. When parents separate, they may set a parenting order reflecting the partnership in parenting that existed during the marriage. That constitutes a form of joint custody.

Following the incidence of divorce in Western countries, many studies have focused on dealing with children of their parents' divorce. One of the topics studied is the relationship of children with their father, who does not live with them permanently. Studies have shown that one of the factors that influence children's coping with divorce is continuity in their relationship with their father. Children were better off when their father kept them in touch over time. Children were injured when their father disappeared from their lives, whether gradually or suddenly. It turns out that the quality of the relationship with the father and child is more important than frequency of contact. In other words, “more time” not necessarily “better relationship.” It is also important that the bond between a father and a child be stable and consistent.

Whether within marriage or after divorce, the father-child relationship is important to the child's proper development as long as the relationship is positive (at least “reasonable”). In cases where the parent neglects or abuses a child physically or verbally, it is preferable that the connection will be limited, under the care of another person or not at all take place. On the other hand, a significant loss of contact with a parent who was close to the child during the marriage may hurt him. Results of studies show that boys suffer more than the lack of a father than girls.

Beyond general information about the importance of fathers in their children's lives, additional studies give information that can guide divorced dads in trying to be good fathers. The findings relate to the different roles that fathers play and the importance of filling all those roles after divorce.

Both parents contribute to their children's security. However, fathers often end up paying child support to mothers. And this is sometimes vital for the safety of children. Economic pressure following the divorce affects children directly; mothers that strain to “make ends meet” have less time and energy to devote to their children. But the father's role does not begin and end by financially supporting their children. Continuity of income is important, but children need much more than that.

Studies show that children of divorce need a father interested in their behavior at school. They need a father, who does not hesitate to discipline and is an authority figure. In other words, it is important that the divorced father have the opportunity to fill all the roles of a parent - not allow him to be limited to being the “ATM” or simply as a provider of entertainment and amusement.

Involvement of parents in children's lives varies with the age of the child. Relationships develop in early childhood through physical therapy with a child (eating, washing, etc.) and expressions of warmth and love.

For children of school age, school and parents contribute to their psychological development by providing assistance with their homework and providing training and encouragement in learning about values, behavior and society.

A vast field of research has focused on fathers, who were unusually involved in their children's lives. It was a wave of research that began in the mid-70’s by people like Graham Russell, which followed families in which fathers were the primary caregivers for their children or participating in childcare evenly, and explored the impact of this fact on the development of children.

The first wave of research findings presented surprising results for the studies. Children brought up mostly by fathers did better than children who were educated in traditional settings. I think the reason is that fathers raise better children than mothers, but the studies took families that constitute a unique population - families in which fathers and mothers were able to divide their responsibilities in a manner consistent with their personal values and goals. These were studies of families where men wanted to stay home and work where they could organize their time flexibly. All mothers in families studied did not want to settle for staying home with the kids as a full-time mother.

However, these studies emphasized the tremendous importance of the recognition that fathers are a fundamental part in the family. In these families, the important point was that harmonic relationships and harmony between the parents spread the benefits among children. In other words, we see evidence that instead of examining only the individual characteristics of mothers and children, we must also examine their relationship with others.

Parenting is a challenge to us all, but an increased challenge for divorced dads is sometimes having less time with their children. Some divorced dads give up their pain and gradually reduce the contact with their children. Others put an emphasis on entertainment and amusements and buying expensive gifts so children will want to be with them.

The truth is, kids want a good relationship with the father, and that requires a balance between all the parts that apply to a good parent. Despite the fact that time together is limited, there is no need to sacrifice the quality of the connection.

Fathers should be encouraged to take as active a part in their children's lives as possible. A father's decision to remain committed and dedicated to his children after divorce contributes greatly to the development of his children.

In any divorce the division of assets and debts is likely to be one of the major points of disagreement. However, this is a particular issue during times of recession. As financial circumstances shift dramatically and the value of assets decline, separating spouses may find it increasingly difficult to agree upon the division of assets and any ongoing financial arrangements such as spousal maintenance. In any divorce the division of assets and debts is likely to be one of the major points of disagreement. However, this is a particular issue during times of recession. As financial circumstances shift dramatically and the value of assets decline, separating spouses may find it increasingly difficult to agree upon the division of assets and any ongoing financial arrangements such as spousal maintenance.
Property Division Under Minnesota Law

Under Minnesota law, a court is to make a “just and equitable” division of marital assets and debts. This does not mean that the division must be equal, rather the court is to consider a variety of factors and determine the proper apportionment.

Even for those who choose to resolve issues related to property division outside of the courtroom, the division is generally guided by these principles, because either spouse could force the issue into a courtroom where a judge would use this standard.

Property division is almost always a contentious issue: while equitable does not inherently mean equal, there is almost always significant and legitimate ground for disagreement. These disagreements are further aggravated when separating spouses cannot agree on the value of a particular asset or the date from which the value should be calculated, as is often the case during a recession.

Determining The Time of Valuation

Generally for purposes of property division, the day of the initially scheduled prehearing conference or case management conference is the “valuation date.” However, separating spouses may agree to a different date or the district court can find that another date is fair and equitable and therefore should be used instead.

When the value of particular assets is subject to great fluctuation, this date can be critical. A house appraised three years ago at $400,000 may now be worth half that, but six months from now the value may be rebounding. A business that is today valuated at $1 million may be in a very different position a year from now.

However, when dividing property the issue is not the past or future value of an asset, but its present value as of the valuation date.

Difficulties With Selling Property

In many cases, the only way to divide property and determine its actual value, such as a house, is to sell the property. If neither spouse can afford to buy out the other’s share of the property or refinance the mortgage alone, sale may be the only option.

However, many would-be sellers are finding it difficult to sell their homes. The housing market is widely perceived to be a buyer’s market, which can make it difficult to attract buyers. Even when potential buyers are interested, they may have difficulty obtaining financing from the bank.

Establishing Spousal Maintenance Levels

Spousal maintenance decisions are also complicated during a recession. Generally, a judge might view a primary wage-earner who becomes suddenly unable to secure work with some suspicion. An individual cannot avoid spousal maintenance payments by voluntarily decreasing his or her income.

However, with the current recession, involuntary unemployment or underemployment is a very real problem. An individual may very well shift from a six-figure salary to being unable to find work. Accordingly, maintenance levels must often be determined with the current reality rather than the prior shared standard of living.

Divorce is rarely easy. Most of the time, dividing up two lives that were once intertwined is a difficult process. Even if both spouses are being reasonable, issues related to property division and maintenance are likely to be contentious. When one spouse refuses to listen to reason, these issues become even more difficult to resolve.

For any economy to grow or decline, investment policy is the chief determining factor. By 1990 Cameroon had been suffering under the yoke of economic crisis for nearly half a decade. It was becoming important to find a new paradise of economic prosperity. Law n° 90/071 to rectify ordinance n° 90/007 of 08/11/1990 on the Cameroon Investment Code was to provide the way forward. Introduction

For any economy to grow or decline, investment policy is the chief determining factor. By 1990 Cameroon had been suffering under the yoke of economic crisis for nearly half a decade. It was becoming important to find a new paradise of economic prosperity. Law n° 90/071 to rectify ordinance n° 90/007 of 08/11/1990 on the Cameroon Investment Code was to provide the way forward.
1. THE REVISED INVESTMENT CODE

The investment code was revised in 1990 to encourage productive investment in Cameroon. Thus it offers alluring conditions to investors in the form of incentives and guarantees. It is a liberal law in which the legislator calls on all natural persons or corporate bodies of Cameroonian or foreign nationality, irrespective of their place of residence, to undertake economic activity in Cameroon. The code goes further to operationalize this charter of rights in the following investor-friendly terms.
• Foreign nationals have the right to enjoy the same liberties and protection of the law as those granted Cameroonian natural persons or corporate bodies.
• Foreign nationals have the right to enjoy the manifold rights governing property ownership, concessions and administrative authorisations.
• Foreign nationals have a right to compensation in the case of expropriation after evaluation by an independent third party.
• Foreign nationals have the right to enter into and execute any contract that they deem to be in their interest.
• Foreign nationals have the freedom to enter, reside in, travel around and leave the national territory. This includes corporate bodies duly established in Cameroon, their partners and managers and foreign staff with approved contracts of employment as well as members of their legitimate families.
• Foreign nationals have the right to hire and fire labour in compliance with the labour and social insurance legislation in force.
• Finally and most importantly, foreign investors resident in Cameroon are guaranteed the right to freely transfer proceeds of all kind from invested capital and in case they cease to operate, the residue of the liquidation. They are also free to transfer funds representing normal and current payments for supplies and services effectively performed, particularly in the form of royalties and sundry remuneration.

Needless to say that all these attractive conditions can only fall into shape when the foreign national (if resident in Cameroon) has a residence permit.

This code also encourages export trade by granting considerable exemptions on export charges.

The code has widened the scope of production in the sense that there is no longer any particular protection amongst national business sectors. The wood sector has been liberalised such that it is now easier to obtain the licence to exploit timber. The petroleum sector has also been liberalised and oil research, meaning exploration, production and distribution, is open to all who can venture. Moreover, a 1998 law instituted special fiscal measures to promote hydrocarbons exploration activities in Cameroon. This law is a charter of rights and benefits to be enjoyed by holders of hydrocarbons exploration permits and concessions.

There is the fiscalo-customs reforms which put every business, whether industrial or commercial, on the same plane.
2. SETTLEMENT OF COMMERCIAL DISPUTES.

In consonance with the spirit of the new investment code, the OHADA Treaty was ratified by the Cameroon government in 1996. This is a harmonized law which enhances the avoidance of legislative anarchy in the business sector. It encourages the jury system as against the single judge system in the settlement of business disputes. In this way the proclivity for impartiality is much reduced. In a bid to avoid the long, onerous and costly nature of legal proceedings in economic litigation, the treaty encourages arbitration

3. LIBERAL ENVIRONMENT

The soil on which the seeds of the revised investment code and the OHADA Uniform Acts can grow could only be fertilized by economic and political liberties. This is how the government released multiparty politics (which had been arrested in 1966 with the birth of the umbrella party, CNU) in Cameroon. This is also how politico-economic liberties came to be enhanced in Cameroon with the 1990 liberty laws. Thus on the political plane 16 laws and 3 decrees were passed covering various facets of political life. On the economic plane 25 laws and 23 decrees were passed across the board.

a) Political liberties.
On political liberties these laws and decrees include, among others, laws n°90/043 to n°90/061 on the conditions of entry into, residence in and exit from the Cameroonian territory; the simplification of criminal procedure for certain offences; the repression of subversion; the state of emergency; the freedom of social communication; the freedom of association; the maintenance of law and order; the regime of political meetings and manifestations, political parties; judicial organisation and; decrees n°90/1245 to n°90/1459 on the conditions of establishing passports and foreign trips by nationals; the conditions of entry into, residence in and exit of foreigners and; the creation of a national commission for human rights.

b) Economic liberties
On economic liberties these laws and decrees include, laws n° 90/019 to n°90/071 on the exercise of the activities of credit institutions; the creation of the Free Trade (Industrial) Zone; the practice of insurance activities; the metric system and the control of weight and measures; the conditions of practice of the profession of road transporters; the regulation of commercial practice in Cameroon; the practice and organisation of the veterinary profession; the practice and organisation of the profession of technical experts; the practice and organisation of the profession of chartered accountants; authorising the President of the Republic to organise a restructuring of the cocoa and coffee sector; the privatisation of public and para-public enterprises; the investment code and; decrees n° 90/1357 n°90/1483 on the facilitation of the entry of tourists into, stay in and exit from Cameroon, the conditions for the granting of the licence to practice cinematographic activities; the conditions for the granting of transporters licence; the conditions for the construction and running of touristic establishments; the conditions for the creation of touristic agencies; the condition for the granting of licence to run credit institutions; the homologation of prices; the modalities for exploiting queries; inter alia.

4. SECURE POLITICO-ECONOMIC ENVIRONMENT.

These political liberties have gone a long way to set a safe and sane political environment for business to thrive. There are more than 150 authorised and fully operative political parties in Cameroon today. In the last nineteen years, eleven multiparty elections have been organised: four presidential, four legislative and three municipal. An elections observatory now exists in Cameroon. Foreign investors show a weakness for countries with institutions having plural opinions such as the present national assembly and municipal councils in Cameroon. There is freedom of conscience and the press is approaching western standards.

The 1996 revised constitution of Cameroon is a great leap toward the ideal of democracy.

On their part the economic liberties have affected trade and industry in a most positive way.

5. THE FREE TRADE ZONE

In 1990 the government of Cameroon enacted the Free Trade Zone legislation to further encourage industry. This law is to the effect that industrial concerns exporting at least 80% of their products qualify for an extensive package of fiscal, regulatory and customs incentives. There are also administrative incentives such as the one-stop shop facility. Industrial estate developers and operators in Cameroon are equally eligible for this same package of benefits.

The Free Trade programme is a concept applicable to locations throughout the country, although with headquarters in Douala. It provides the opportunity for the setting up of “industrial park” free trade zones and “single factory” or “special” free trade zones. The opportunity for the latter is granted to agro-industrial firms to enable them locate near their sources of raw materials.

The scope of activities in the free trade zone ranges from pure manufacturing, through assembly operations to financial and information processing services.

6. SOCIAL

In August 1992 the Cameroon Labour Code was revised to meet the exigencies of an ambitious economic plan as elaborated in the investment charter. In this new code, the liberalisation of the economy is further sanctified by the freedom of contract between the employer and the employee. Here the balance of favour is titled to the greater advantage of the employer. At the same time, foreign business operators and foreign employees are greatly protected.

In 1998 the President of the Republic ratified a 1973 ILO convention concerning minimum age for admission to employment. Thus the minimum age for admission to employment throughout the national territory is now fixed at 14 years; this in accordance with the revised labour code. It will result in increase in the supply of labour and its attendant benefits to the employer.

7. BANKING AND INSURANCE

It is the banking sector which fuels the economic machine. This is why the banking sector in Cameroon was restructured to favour the growth of business. This was achieved through legislation designed to ensure the stability of the sector. Since the enactment of the 1995 ordinance, there is no restriction as to ownership. Hence we find the existence of 100% privately owned banks and other sorts of financial institutions in Cameroon today. There is also the possibility of operating offshore banking in this country.

The government adopted the crossed cheque system in 1996 with restricted endorsement. This limits the drawing and issuing of cheques and breaks the circulation of money. It directly coerces otherwise non-challant business persons to operate bank accounts. On the whole this system guarantees security in monetary transactions.

Moreover, Cameroon is a member of the Multilateral Investment Guarantee Agency for the promotion of the flow of private foreign direct investment to developing countries. This agency provides political risk insurance coverage against the major non-commercial risks of war and civil upheavals, currency transfer and expropriation. It also provides technical assistance to member countries to enable them attract foreign investment.

With respect to the insurance sector, the Cameroon government ratified the CIMA code in 1995. This code standardizes insurance claims, and encourages out-of-court settlement by allowing a threshold of impatience of up to one calendar year. Above all, since the code puts a limitation on colossal claims against insurance companies, it in this way favours the growth of the insurance industry.

8. TRANSPORT
The purpose of investment is production. And production is not complete until the goods reach the final consumer. Cameroon has the natural advantage of having a coastline. For the foreign investor in Cameroon, the bulk of transportation of goods is by sea, so it is trite to mention here that the Hamburg Rules of 1978 (a UN convention on the carriage of goods by sea) ratified by the Cameroon government in 1993 and entering into force in 1994 shall apply.

This convention put back the whole issue of Maritime transportation on a scale which tilts heavily in favour of the shipper as against the transporter. In the case of dispute the presumption of responsibility is on the transporter on whom the onus of proof lies.


A 1998 law instituted minimum service in the public transport sector. Thus, public or private undertakings providing public transport by air, sea, road or rail or otherwise managing transport facilities shall be bound to provide minimum services in the event of strikes, riots, mutinies, and other similar contingencies. The competent local administrative authority may, if need be, resort to collective or individual requisitions to ensure the provision of the minimum service, which service shall be renewable as and when necessary until negotiations are done with.

Another law of 1998 set up a road fund to finance programmes for the protection of the national road network, for road safety and for road maintenance. Given that, in economic terms, transportation is a process in production, this law will go a long way to speedup economic activity.

More and more roads are presently being tarred. Existing ones are under permanent maintenance. With several airlines companies operating in Cameroon, air link is sure and certain. The Limbe deep sea port is being extended by Chantier Naval et Industriel du Cameroon.