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Pirates' Paradise LAW SOCIETY GazetteGazette€3.75 November 2010 PIRATES’ PARADISE: EMI v UPC – a treasure trove for music freebooters? INSIDE: NAMA – AN INSIDER’S VIEW • CRIMINAL PROCEDURE • ARBITRATION ACT 2010 • YOUR LETTERS 5215_Aon_Ireland_(Professional)_LSG ad:5215_Aon_IRISH_LawSocietyGazett ad_21/9/2010 21/9/10 13:12 Page 1 Professional. Behind our Professional Indemnity Insurance is a specialist legal sector team. That means any claims are handled by a qualified lawyer, and every aspect of our service is designed to ensure you have the right support for your Practice, delivered with professionalism at every level. Our reputation and longevity in the market also means that we are a stable, safe choice for you. For a quote from our team of experts call us today on 01 266 6400 or email [email protected] www.solicitors.aon.ie PI insurance from Aon: let us take care of it MacDonagh Boland Crotty MacRedmond Ltd. t/a Aon MacDonagh Boland is regulated by the Financial Regulator. president’s message Law Society Gazette november 2010 p rotecting our profession his is my last president’s message and, of course, I write it with some regret that my year is now coming to an end. It is a great honour to have served as president of the Law Society of Ireland, albeit at a tparticularly difficult and demanding time. This time last year, we had what can only be described as an upheaval in relation to the professional indemnity insurance (PII) market and the continuing economic difficulties. The matter of PII did ultimately proceed and, while insurance was resonates for both of our professions. available to most, it was at a significantly increased premium. The task force dealing with commercial undertakings has We are now undergoing the process again, and it is hoped that completed its work, and new regulations will come into force the matter will be somewhat smoother, although it must be on 1 December 2010. These will place an almost complete understood that the market remains fragile. In view of the large prohibition on the giving of commercial undertakings. The number of claims, it is unlikely that there will be any decrease in same firm cannot now act for both the borrower and lender. premium levels. During the year, the question of conflict arose as a result of At this time last year, while the economy was at a low ebb, our deliberations on the matter of commercial undertakings. it was hoped that there would have been some At each of the bar associations I attended, it was increase in economic activity in the second half the one issue that was common to all. Arising out of 2010. Regrettably, this has not happened. We “At the most of this, at the most recent meeting of the Council, must hope that next year will be better. it was decided to establish a task force to examine recent meeting the question of the solicitor acting for both sides Characteristics of professionalism of the Council, in conveyancing transactions. It is hoped that the Presiding at my final parchment ceremony, I task force will complete its deliberations during the was particularly fortunate to have as one of my it was decided lifetime of the next Council. guest speakers Professor Ailish McGovern, to establish a president of the Royal College of Surgeons. great privilege She spoke at some length about the concept of task force to With the director general, Ken Murphy, I attended professionalism and the characteristics common examine the bar association meetings all over the country in to both professions. To quote her: 2010. While they elicited, on occasions, difficult “To both of us, the concept of being part question of the and demanding questions, I was treated with the of a profession is critically important. We solicitor acting utmost courtesy and hospitality wherever I went. know that our professions arose from the At the annual conference of the International guilds of medicine, law and divinity. Typical for both sides Institute of Law Association Chief Executives characteristics of the professions are that each in conveyancing (IILACE) in Vancouver from 30 September to is a monopoly or single discipline, associated 2 October, Ken Murphy was elected IILACE with specialised knowledge, skills and expertise. transactions” president. He will hold this post for two years. It is There is the concept of altruism – that our gratifying that Ireland should produce a president actions are for the benefit of the client – and of such a significant international organisation, and trustworthiness, because the client may not be able to assess our I wish Ken well during his term of office. skills. Descriptors such as independence, impartiality of advice Finally, I would like to thank my business partner, Paul and objectivity of service resonate with us. The erosion of trust O’Reilly, who carried a heavy burden during my year in office. in our professions largely arose from unprofessional behaviour by In addition, I wish my successor John Costello a successful members of our respective professions.” presidential term. It has been my great privilege to serve as More importantly, Prof McGovern spoke of issues that president. g should be highlighted: ethical behaviour, demonstrating respect, compassion and integrity, and responsiveness to the needs of the Gerard Doherty patient/client and society that precedes self-interest. Her speech President www.lawsocietygazette.ie 1 Law Society Gazette november 2010 Contents Law Society Gazette • Vol 104 No 9 Society Gazette • Vol Law Law Society o n the cover LAW S o C I e T Y m usic piracy has little to Gazette€3.75 November 2010 do with salty dogs and crusty old seamen, but can the buccaneers be broadsided? gazette NoVember 2010 gazette pic : rex FeATureS/GAzeTTe STuDIo november 2010 pirateS’ paraDiSe: emi v upc – a treasure trove for music freebooters? Law Society of ireland Volume 104, number 9 iNSiDe: Nama – aN iNSiDer’S View • crimiNaL proceDure • arbitratioN act 2010 • your LetterS subscriptions: €57 regulars 1 president’s message 4 news analysis 10 10 Human rights watch: the Leaving Cert and flagging special accommodations 10 One to watch: Akzo Nobel Chemicals and Akcros Chemicals v European Commission 14 News feature: Arbitration Act spells radical changes 16 News feature: videoconferencing in the courts 16 Comment 18 18 Letters 22 Viewpoint: new law on begging 44 people and places Book review 47 National Asset Management Agency Act 2009: Annotations and Commentary Briefing 48 48 Council report 49 Practice notes 55 Legislation update: 11 September – 11 October 2010 57 Solicitors Disciplinary Tribunal 18 58 Justis update 60 Eurlegal: public procurement – commission consultation on concessions 62 professional notices 64 recruitment advertising e ditor: mark mcDermott FIIC. deputy editor: Dr Garrett o’boyle. designer: nuala redmond. editorial secretaries: Catherine Kearney, valerie Farrell, Peter Downey. For professional notice rates (wills, title deeds, employment, miscellaneous), see page 63. Commercial advertising: Seán Ó hoisín, 10 Arran road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. printing: Turner’s Printing Company Ltd, Longford. editorial board: michael Kealey (chairman), mark mcDermott (secretary), Paul egan, richard Hammond, Simon Hannigan, mary Keane, Aisling Kelly, Patrick J mcGonagle, 45 Aaron mcKenna, Ken murphy. 2 www.lawsocietygazette.ie Contents Law Society Gazette november 2010 get more at lawsociety.ie proFessional notiCes: send small advert details, with payment, to: Gazette office,b lackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the all Cheques should Be made paYaBle to: law soCietY oF ireland. magazine as far back as Jan/Feb 1997, right up CommerCial adVERTISING: contact Seán Ó hoisín, 10 Arran road, Dublin 9, to the current issue at lawsociety.ie. tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news haVe You moVed? members of the profession should send change-of-address • Forthcoming events, including the IHrC’s details to: IT Section, blackhall Place, Dublin 7, or to: [email protected] annual human rights Cconference entitled how to reaCh us: Law Society Gazette, blackhall Place, Dublin 7. ‘emerging human rights issues’ on Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] 20 november in blackhall Place • Employment opportunities FSC independently-certified wood and paper products used by the Law Society Gazette • The latest Cpd courses come from ecologically-managed forests. visit: www.fsc.org … as well as lots of other useful information PeFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. visit: www.pefc.org Features Cr oVe storY: 24 pirates’ paradise Music pirates got their hands on some unexpected booty following the judgment in the recent EMI v UPC case. Iain McDonald goes aloft to scan the horizon from the crow’s nest a rose by any other nama... 28 Following the establishment of NAMA in December 2009, Aideen O’Reilly gives us an insider’s view of the agency, its tasks, and how it has gone about appointing specialist legal services Balancing act? 32 The Criminal Procedure Act 2010 was passed into law on 1 September 2010 and institutes far-reaching changes to our criminal justice system. Orla Keenan wonders whether the seismic changes it heralds amount to a step too far in favour of the victim 28 Full to capacity 36 A finding that a person lacks capacity may result in the restriction of their fundamental rights at the most basic and practical levels. A solicitor faces particular demands in advising a client whose capacity is at issue, writes Margaret Walsh the right note 40 Sometimes described as the third arm of the legal profession, the office of the notary public is the oldest surviving branch of the legal profession.
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