The Panamanian foundation

• Liechtenstein Anstalt and Stiftung are relatively expensive to form and maintain. The Panamanian foundation is comparatively inexpensive.

• Another advantage is that Panama is in the same time zone, making administration of the foundation from the United States easier.

• The time difference between the USA and Liechtenstein may prove frustrating to creditors in communicating with their local counsel. However, it would probably be more immediately frustrating to the client and planner attempting to form and then administer the entity from the USA.

• For these and other reasons, Panama copied much of Liechtenstein's Stiftung legislation, giving us the option of the Panamanian foundation.

• The Panamanian foundation can hold title to assets in its own name like a corporation. It can also make discretionary payments to the founder or beneficiaries, like a trust.

• The foundation is mostly controlled by its bylaws, which do not have to be registered or publicly disclosed (as with the Stiftung).

• Panama has a three-year statute of limitation for fraudulent transfer challenges to contributions to the foundation. If gifting is utilised to fund the foundation, creditors have three years to attempt to void the gifts. After these three years, the assets are probably safe from creditors.

• The foundation assets may not be applied towards the debts of either the founder or any beneficiary.

• As with the Stiftung, probably the best use of the Panamanian foundation is not to hold assets, but rather to own an entity that is used as a management company. The management company would be owned by a Panamanian charity, with three Panamanian residents as members of the foundation's council. Therefore it is very difficult for a creditor to claim that the US owner of the asset being managed has any ties to or control over the foundation.

ole cards

Tudent A

Unit 7, Exercise 31

You are a property lawyer and receive a call from a foreigner interested in buying property in your jurisdiction. Prepare to take the call by reviewing the language from your presentation (Exercise 14) and the telephone conversation between Marta Cervera and Jana Fialova (Listening 2 and 3). Try to anticipate the kind of questions you will be asked and make notes on your answers.

Unit 8, Exercise 35

You have just been fired without notice from your position as Scandinavian Sales Director of a large educational publishing company. During your exit interview, your boss claimed that your sales had been repeatedly below target for the past 13 months. However, you are certain that you have only missed your target three times. You know of at least three colleagues who have missed their xargets more often than you, and that this has been attributed to a general fall in sales across Europe. In fact, one of these colleagues was recently promoted, after only five months with the company, to a position you had hoped to get. The company said it had no choice as someone had been found who could do a much better job and was ready to start immediately. You decide to consult a lawyer.

Prepare for the meeting. Think about the kinds of question you may be asked. During your meeting, focus on both concrete facts and your own personal opinions.

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Unit 9, Exercise 32

You are a lawyer specialising in claims related to damage caused to computers as a result of bad programming. You have been contacted by the owner of an online discussion group concerning problems that some of the group members have been experiencing with their anti-virus software. Conduct a lawyer-client interview with the owner of the online discussion group, using the WASP approach in Unit 3. Look at these notes on conflict of law to help you.

0 Choice of law and statutory interpretation are an issue when, for example, a class of injured litigants from different jurisdictions sues a Californian company in a California federal district court. In order to make class certification more likely, this multi-jurisdiction class will want the law of one jurisdiction to apply. Consequently, you might advise your client to bring suit under a Californian consumer protection statute.

0 A class action suit on behalf of claimants from different jurisdictions is likely to raise conflict of law issues. A defendant might challenge a class suit on the basis that the laws of each represented jurisdiction must be applied to the class's claims, and that the class should not be certified because the suit will be unmanageable.

0 A judge's first step will be to examine the law of the state in which the defendant is based for evidence that the legislature intended for its laws to apply to extraterritorial litigants whose only connection to the state is that they were injured by a product manufactured there. The rest of the case would proceed as outlined in Listening 2.

Student B

Unit 7, Exercise 31

You are interested in buying property in another country and phone a lawyer who has been recommended to you by a colleague. Prepare for the call by reviewing the language from your presentation (Exercise 14) and the telephone conversation between Marta Cervera and Jana Fialova (Listening 2 and 3). Write down the questions you need to ask.

Unit 8, Exercise 35

You are a lawyer specialising in employment law. You are due to meet a new client who has just been fired without notice from a well-paid position in publishing. Prepare for your meeting by noting down the kinds of question that you will need to ask your client to establish the facts, to find out what the client hopes to achieve and to be able to offer the best advice possible. During your meeting, try to get your client to stick to the concrete, provable facts of the case as much as possible using the language from Exercise 33.

Unit 9, Exercise 32

You are the owner of an online discussion group. One of the recent discussion threads concerns problems that group members have been experiencing following the most recent upgrade to their anti-virus software. Several of them have lost data following this upgrade, although are unsure as to whether this was caused by the software itself or by viruses the software may have let in. The software was written by Redfern, an American company based in California. When one member of the group contacted Redfern, she was told that there was no problem with the software. She was also told that even if there had been a problem, Redfern wouldn't be liable to claimants from outside California. The potential claimants, 20 in total, come from four different US states, three EU member states, Egypt, South Korea, Pakistan, Venezuela and South Africa.

You have suggested that all those who have experienced problems should join together and try to claim damages in a class action suit against Redfern, and have arranged a meeting with a lawyer. Prepare for your meeting by familiarising yourself with the facts >f the case. Be ready to provide your lawyer with any further background information thatmight be needed.

Additional material

Contract law

The facts of the case

Your law firm has asked you to review the following case in preparation for a meeting with a client. Read this description of the facts of the case. What is the legal issue here?

Deep Blue Pools Ltd began as a small business in 1997, manufacturing and installing high-quality swimming pools for private residences. It has since developed a reputation for excellence and has received a number of lucrative contracts, generating substantial income for the company.

Last year, Gainsborough Construction Ltd contracted with Deep Blue Pools to build one swimming pool for each of the ten luxury properties it is currently building in south-east England. Deep Blue Pools was paid a total of £265,600 for the work.

Sometime after their installation, it became clear that each pool was shallower than the depth of 2.4m specified in the contract (by 25 to 50cm at different points). Deep Blue Pools claimed that each pool was still safe for diving and there would be no loss of enjoyment.

Gainsborough Construction is claiming £312,680 to demolish and rebuild the pools to the proper depth (cost of cure¹), arguing that it is entitled to its exact preference concerning the pools' depth. Gainsborough Construction also claims that Deep Blue Pools deliberately misled them as to the size of the pools provided in order to reduce costs.

Deep Blue Pools says that the amount claimed is wholly disproportionate to the disadvantage suffered by Gainsborough Construction, and that the houses are no less valuable. Deep Blue Pools also claims that Gainsborough Construction has no real intention of effecting a cure, and that any damages awarded would be an unfair 'windfall²'.

Task i: Speaking

Divide into two groups, with one group representing Gainsborough Construction and one group representing Deep Blue Pools.

1 Prepare for negotiations with the other party. You should:

0 identify the legal issues of the case and determine arguments for your side;

O list the strengths and weaknesses of your side of the case;

0 list the strengths and weaknesses of the other side of the case;

C decide which parts of the relevant legal documents most strongly support

your case and can be used to argue against the other party's case; 0 make notes for the negotiation: What are your goals? What are you willing

to give? What are you not willing to give?

2 Pair up with a representative of the other party and attempt to negotiate a settlement.

3 Report the results of your negotiations to the class.

¹ See Text 2 on the opposite page.

² an unexpected profit or gain

Relevant legal documents

Text r. Sale of Goods Act 1979, Section 53 (1-3)

{\.\ Where, there \s a. breach of vra.tta.nty¹ bv the seller, or where the buyer elects (or is comyelled^ to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may—

(a) set up against tiie seller the breach of warranty in diminution² or extinction of the price, or

(b) maintain an action against the seller for damages for the breach of warranty.

(2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

(3) In the case of breach of warranty of quality such loss is prima facie³ the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had fulfilled the warranty.

¹ In some jurisdictions, contract terms are classed as either warranties or conditions. The breach of a warranty can give rise to
a claim for damages, but not to a right to treat the contract as terminated. The breach of a condition can give rise to a claim for
damages and also gives the the right to treat the contract as terminated.

² the act of decreasing or lessening something; reduction ³ at first sight; accepted as correct until disproved

Date: 2015-12-24; view: 2729