text:
The Article 14 (Right to Equality), read with Article 19(Right to Freedom), Article 25(Freedom of Religion), Art 21 (Protection of life and personal liberty) are among the fundamental rights of citizen’s listed in the Part III of the constitution. Remedies for enforcement of these rights are judicial and embodied in Article 32 which gives the Citizen the right to move to the Supreme Court by appropriate proceedings for the enforcement of these rights is guaranteed. Under Article 32, ‘The Citizens are entitled to relief provided it is shown to the satisfaction of the Court that the fundamental rights of the citizens had been violated. The issuance writs, meaning orders by the Supreme Court or the High Courts under Article 226 is the form of such orders depending on the nature of the case. These writs are in the nature of ‘habeas corpus’, that is requiring the authority to produce a detainee, mandamus that is to compel performance of a Statutory duty of public nature when such an authority refuses to perform it, ‘quo warranto – to prevent a public office being held by a person without legal authority and Certiorari meaning demand for information that may lead to judicial review of administrative action.
Together these constitute in simple language the ‘writ jurisdiction’ of the Supreme Court and the High Courts (Note: The Courts subordinate to the High Courts do not enjoy this jurisdiction) and the scheme of Judicial Review under Article 32 and 226 of the Constitution.
Further Art 141 lays down that “the law declared by the Supreme Court shall be binding on all courts” which means law made while interpreting the statutes. . The orders might contain many observations and not all these comments would have “precedential” value, but only enunciation of law by the court on issues directly raised or arising of the application of law to a particular case expressed in Latin as ‘ratio decidendi’ which will be treated as binding precedent and hence a judge made law.
A reader may ask why such use of Latin expression?
The answer is that for historical reasons only two systems of jurisprudence have proved outstanding for adoption, namely the ‘Civil Law of Rome’ and the ‘Common Law of England’ and often intertwined especially in matters of procedure and hence the use of Latin words. In continental Europe, Latin America and Japan and even Scotland, Roman law is followed whereas in all countries which for sometime came under the British Rule seem to have adopted the Common Law of England.
Reverting to the role of the Supreme Court, we must note that while under Art 142 the Supreme Court enjoys unfettered independent jurisdiction to pass any order in public interest to do complete justice, under Art 143the President has the power to consult Supreme Court “on a question of Law or Fact” which is of such ‘Public Interest’ that the President feels it expedient to obtain the opinion of the Supreme Court and on receiving such a Presidential reference, “ the Supreme Court may after such hearings as it thinks fit , report to the President its opinion thereon”. Art 144 lays down all authorities, Civil and Judicial shall act in aid of the Supreme Court.
From this position it is clear that the Courts have a Constitutional mandate to define, preserve and protect public interest. The instrument of Public Interest Litigation (PIL), an important feature of Indian democracy owes its origin to the writ jurisdiction of the Courts. Thus the Supreme Court interpreted the Right to Life to include ‘the right to clear air and safe water’. Thus the Supreme Court has defined PIL as a proceeding in which an individual or a group seeks relief in the interest of general public and not for its own purpose. (SP Gupta Vs Union of India, AIR 192 SC 149), the implication of this important order is far reaching. The strength of democracy lies in the idea of Public Interest of the general public which depends on the degree of advancement of the society and its capacity to absorb innovative thoughts based on science and experiences all over the world. This makes public interest varied and ever expanding in its scope; as for instance concern for environment, conservation of wild life , clean air and water have been only brought within the public agenda sometime back but today ‘climate change’ has placed environment in the core of development philosophy and public interest and mass education as the foundation of human development . In India, public interest is often confused with sectional, communal or even private interest in a dynastic party system. There is thus an emergent need and role for the judiciary t protect genuine public interest and to prevent the State from being hijacked by interest inimical to progress of the society, as experienced in some of the Sub-Saharan and Latin American countries in recent past. This problem will however remain as in a democracy, ‘public interest’ is defined by the political class who may take a narrow and short term view on political consideration which could be against the real public interest. In such a situation, the role of judiciary becomes critical for survival of democracy and social and economic development. We may note that whatever little of Rule of Law is left in Pakistan today is almost entirely due to the role of its judiciary which despite the constraints imposed, often stood up for citizens rights and liberties.
While the constitutional position of the judiciary is unquestionably critical for preservation of the basic structure of the democratic polity, rule of law and rights and liberties of the citizens and hence the vast scope of judicial review. The role of higher courts as the final adjudicator of disputes involving citizens and corporate bodies often involving State and as supervisors of subordinate courts functions are nonetheless the substantive part of its work that is delivery of justice. And since the maxim, ‘justice delayed is justice denied’ holds good for all societies, a balancing act between these two roles is essential for efficient management of time, without which the delivery of justice might as well suffer and much against the public interest. The issue of huge pendency of cases in all courts estimated at over 1 crore or so in the entire country, merits close examination as the pendency is also attributed to courts directions on matters which fall within the executive domain. To cite some recent examples, a High Court has asked the government to augment the strength of the local police force, though the Court can hardly judge if the state of law and order is a result of understaffing or a mere total lack of accountability of the police force, a division bench had asked the State government the reason for granting parole to an otherwise respectable citizen who had been imprisoned for an offence overlooking the constitutional provision that parole and pardon etc is the sole prerogative of the State as the judiciary’s task is over once it sentences a person. The argument that if the executive fails, judiciary must step in is dangerous because of the difficulty in appropriately defining failure and what if judiciary fails, then who will step in – Executive?
There is at present a grave danger of judiciary collapsing under its own weight. According to the union law ministry 60,000 cases are pending in the Supreme Court, 4 million in the High Courts and 27 million in the subordinate Courts.
The current stand off between the union government and the Supreme Court is about the collegiums system in vogue under which the judges appoint judges and the President approve the same and appoint judges under Art 217 of the Constitution. The Supreme Court collegiums is headed by the CJI and 4 other senior most judges while the HC collegiums is headed by the Chief Justice and 4 other senior most judges. The collegium scrutinizes the names, prepare a list and recommend the list to the government. Note that the latter has no role in making the select list and though it could raise objections or seek clarification, but if the collegiums stick to the list the government have no option but to refer the list to the President for action under Art 217 which is reproduced below with the relevant Art 124(2) appreciation of the legal position.
The Collegium system is the outcome of ‘Judge made laws’ as no provision of the constitution provides for the same nor any act of Parliament and has its genesis in “Three” Judge Cases. Briefly stated, the first case – SP Gupta Vs UOI in 1981 held that the primacy of CJI in appointment of judges is not built in the constitution and thus the term ‘consultation’ was not ‘concurrence’ meaning in plain language that the president was not bound to go by the recommendation which tilt in favour of the executive in the matter of appointment of the judges. This judgement of the Supreme Court in the case of Advocates on record vs. the UOI (Union of India) overruled the first judgement, introduced the collegium system as it exists today, accorded primacy in the CJI as the CJI’s recommendation should normally be acted upon by the President unless there is an adverse report of IB in respect of any recommended person. The third case arose out of a reference to the Chief Justice of India made by the President KR Narayanan under article 143 of the constitution as to the meaning of the term consultation that is , if only consultation with CJI on appointment of judges would suffice or require consultation with a number of judges. On this Supreme Court laid down 9 guidelines for functioning of the coram which constitute the collegium system. Not being happy with the system the government constituted the NJAC in August 2014 by the 99th amendment to the constitution supplanting the collegium system. However in October 2015 the Supreme Court struck down the NJAC Act 2014 and restored the collegium system. In the meantime the position of vacancies in the Supreme court and the High Court have gone up to 42.7% that is 461 posts out of 1079 sanctioned posts are vacant causing further rise in the number of pending cases. The stand off continues till date as the Supreme Court reiterated the list of 43 names for appointment rejected by the government. This standoff continues as the Union Finance minister is on record stating that due to encroachment of judiciary into legislative domain, “the edifice of the Indian legislature is being destroyed”. While aforesaid view is unexceptionable, there is some truth in the point that the collegium system lacks eligibility criteria and therefore is non-transparent, and that the Executive should have some say in the matter of selection of judges. However 2015 ruling of the Supreme Court paved the way for the government an alternative in the form of a Memorandum of Procedure that the Supreme Court asked the government to prepare which is still not in place as an agreed procedure. Consequently the government has been slow in approving the names and the Supreme Court unwilling to accept the government stand, and so a crisis situation has taken place with arrears mounting.
The constitutional architecture of parliamentary democracy, one must realize is delicate and requires mature understanding of each of the three wings and their role by those who head these organs and assertion that one wing is supreme for whatever reason is bound to cause damage to this architecture and upset the balance as it happened when a state of national emergency was declared in 1975-76 following a chain of events that started with an order of the Allahabad high court setting aside election of Smt. Indira Gandhi to the Lok Sabha. The continuing standoff between the Supreme Court and the government on the issue of NJAC is thus rightly viewed by Christopher Jaffrelot, a keen India watcher as an “ill-judged conflict” and it is hurting the citizens and the litigant public specially rather deeply as they are paying the price for delay in disposal of cases.
On 23rd November 2016, the Supreme court pulled up the Central government in the course of hearing of a petition in the nature of the PIL for not amending the Lokpal Act 2013 to recognize the leader of the single largest opposition party as leader of opposition in Parliament, for constituting the selection committee under section 4(1) of the Lokpal act which stands in the way of appointment of Lokpal even though the act was notified on 1st January 2014. The Honourable bench of the Apex Court observed the institution of Lokpal was intended to bring probity in public life, and then this institution must work. We will not allow the situation where then institution is rendered redundant. These are indeed very strong words and there is strength in the argument of the petitioner, NGO common cause, that if the government feel strongly about it could have issued an ordinance to amend the aforesaid section of the Lokpal act. The court proceeding reported in the press suggest that the Attorney General of India put forward a view that since the government have introduced the bill to make the necessary amendments, the judiciary can not issue any directions to the Parliament which the honourable court viewed unacceptable and hence the court’s anguish at executive failure expressed rather strongly. Is this a case of judicial activism, overreach or a reasoned response to a matter is a question that has been agitating the people’s mind particularly from 2011 when the movement against corruption was launched by Anna Hazare which resulted in the enactment of the Lokpal Act 2013 and it may be recalled that this law was the outcome of lengthy consultation between the movement leaders and the central government. We may also recall that the Lokpal bill was introduced first in 1968 by Mrs Indira Gandhi and since then it has been a part of anti corruption agenda. In this background, its non-implementation for over two and a half years on a mere technicality which could have been resolved by promulgating an ordinance leaves reasonable doubts about the Government’s commitment to the act and its stated objects. The Supreme Court’s view on the subject will therefore be shared by many and taken as a proper response and directive and not as an instance of judicial activism. Leaving aside this observation of the Supreme Court, the reader may perhaps note that the entire scheme of Lokpal under the Lokpal act as embodied chapter VI is designed to create a kind of superior oversight body to ensure probity in functioning of the highest executive office and all other public servants associated with the Central Government by exercise of wide ranging powers of causing enquiry and prosecution. Lokpal therefore will really be a power structure above the government. How such a powerful oversight body will fit into the Westminster type of Parliamentary democracy that India has adopted will be worth a serious study as the institution of Ombudsman from which the idea of Lokpal has been derived, exists in the Scandinavian countries but not in England- the source of our constitutionalism.
Let us now give a look at two landmark orders of the Supreme Court. First Singur land acquisition case for setting up of a Car manufacturing plant for which West Bengal Industrial development corporation acquired land for transfer it to Tata Motor on lease for the project and second acquisition of land for a bauxite aluminium project at Niyamgiri hills in Orissa by a UK based mining company Vedanta resources industries limited for which forest lands were acquired by a State PSU namely Orissa Mining corporation even when all 12 gram sabhas of the area exercised their power under the Forests Rights Act 2006 to pass resolution rejecting the proposed land acquisition. The similarities of these two cased are remarkable as both relate exercise of power by the state of what is called in law “eminent domain” that is power of the sovereign state to take private property for public use/ public purpose.
In Singur case the Supreme court noted a serious infirmity and procedural irregularity in not following a somewhat lengthy procedure under the Land Acquisition Act, 1894 prescribed for acquisition of land for companies for projects to serve a public purpose which could include industrial unit such as the Tata project to manufacture ‘Nano’ cars in Singur as it would generate employment, income etc. Here instead of aforesaid procedure, the state invoked the emergency clause for acquisition which can only be invoked in the situation caused by emergencies like earthquakes, flash floods or to meet defence needs which didn’t apply to Singur case and more so because land was to be acquired by the State Industrial Development Corporation. The court also noted that the mandatory enquiry into the objections filed by the affected farmers was not conducted by the Collector who ordered summary rejection presumably at the instance of the government of the West Bengal and hence a case of denial of justice and commission of procedural irregularities was established. The impugned order of acquisition was thus set aside.
In the other case – Orissa Mining Corporation Vs the Ministry of Forests and Environment, the Supreme Court set aside the order of acquisition on the following grounds. The subject land was ‘Forest land’ at Niyamgiri Hills and the tribals being ‘Traditional forest dwellers’ under the Forests Rights Act and their Gram Sabhas are well within their rights to hold that they do not want mining. Thus in its April 2013 order the Supreme Court held that the project violated the Forests Rights Act and the International convention for the protection of indigenous communities and Articles 25 and 26 of the Constitution of India.
Thus what is common in these two cases is the ‘eminent domain’ – the power of the State to acquire land which, the Court held is not absolute or unfettered and has to be tempered by the duty of the State to preserve the rights of the indigenous tribes in Odisha case and the rights to livelihoods of the farmers in Singur and the procedural rights to put across why they object to the land acquisition and its reasoned consideration by the State. These rights are inalienable and therefore the State cannot take these away in the name of development and such State actions are deemed ‘arbitrary’ and by setting aside these orders the Apex Court has established case laws to be viewed as Laws to preserve ‘public interest’. From this angle, the Dec 2, 2016 order of the Supreme Court upon hearing a batch of petitions challenging the legality of various aspects of ‘demonetisation’ order dated 8.11.2016 asking the Central Government to spell out measures taken to ease the suffering of the people arising because of shortage of cash particularly in rural areas are not instances of ‘activism’, or ‘interference’ in Executive’s domain but acting well within its constitutional mandate of protecting citizens rights which in a strictly legal sense includes such interventions as in demonetisation case or the order banning sale of firecrackers in Delhi in view of the grave air pollution posing a threat to lives of all citizens especially children. The Supreme Court has since formed a ‘Constitution bench’ to examine the question of legality of the demonetisation and raised certain objections. A Civil Service aspirant may well advised to follow this case to understand how the system of Governance actually works.
This discussion will remain incomplete unless the role of the NGT and some of its recent landmark decisions are examined for a mature appreciation of how the ‘Separation of Powers’ doctrine os actually operating in India. The NGT was established under the NGT Act 2010 enacted by the Parliament “for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto”. NGT is thus a specialized Environment Court, structured as a tribunal because while a court is a more formal structure headed by a Judge with elaborate rules for conduct of its procedure whereas a Tribunal can include both a Court and a Administrative hearing board with Expert members with necessary knowledge and experience and emphasis on resolving a matter through a ‘straightforward approach’ to rules of enquiry and evidence without quibbling over rules and procedures. NGT is thus founded on the concept of alternative jurisprudence – a departure from a “legalistic adjudications” to a problem solving role through an interdisciplinary approach essential to deal with complex and multi-disciplinary issues of environment conservation and ecology to function as an ‘alternative dispute resolution’ mechanism. One must also note that for want of this practical approach, the National Environment Appellate Authority set up under NEAA Act 1997 was a non-starter and even a tribunal envisaged under the National Environment Tribunal Act 1997 was not even established. The constitution of NGT was therefore a bold and historic step in line with the Rio Declaration of the UN in June 1992 on Environment and Development. After establishment of the NGT, all environments related cases pending with the Supreme Court were transferred to the NGT. NGT enjoys original jurisdiction under Sec 14 of the NGT Act and is also appellate jurisdiction over its regional branches and other authorities specified under Sec 18. The Green bench of the Supreme Court retain its ‘original jurisdiction’ and appeal against the orders of the NGT shall lie with the Supreme Court under Sec 22 of the NGT Act.
There is an interesting ‘global right’ angle to this subject as over the last 3 decades, there has been a convergence of law viz human rights law and environmental rights law because the latter bundle of rights is now considered to be “enforcement of human rights within the ‘broad right to life’ that now includes right to healthy environment. It may even be stated that the concept of human rights – enshrined in the UN declaration of Human Rights 1948 and the UN Covenant on Economic, Social and Cultural Rights( 1966) and the recent UN Right to development found its conceptual integrity in the right to healthy environment, clean air and water as central to the Right to Life.

matches:
Art 21
Art 141
Art 142
Art 143
Art 144
Art 217
Art 217
Art 124


Wells v. Metropolitan Life Insurance Co.
Anschel E. Barshay and Philip Hoffman, for the plaintiff.
Tanner, Sillcocks Friend, for the defendant.
The facts here are not in dispute. On January 1, 1931, the defendant issued its insurance policy in the amount of $2,000 to Ernest J. Wells, in which policy the plaintiff, Florence S. Wells, his wife, was designated as beneficiary. The premiums were paid regularly by the policyholder until July 1, 1936, when the policy was in default because of non-payment of premium. By the terms of the policy he was from that date on entitled to "extended term insurance," which was to be paid for by the cash value or net equity of the policy as of that date. If that cash value or net equity was $24.73, it would have continued the policy up to the date of the death of the insured, December 16, 1937. If the net equity for cash value was only $19.12, the extended term insurance would not have continued the policy to that date. Consequently, the determination of the actual cash value or net equity in the policy is of controlling significance.
Dividends for the year 1932 were not paid until January, 1934. Dividends for the year 1933 were not paid until January, 1935. Dividends for the year 1934 were not paid until January, 1936. The dividend for 1935 was retained by the defendant because it claims that the dividend was not payable until the next anniversary of the policy following the next succeeding thirtieth day of April, and since the policy lapsed in July, 1936, the alleged dividend for 1935 was not payable until January, 1937. By that time the deceased had already died. The argument is based upon paragraph "12" of the policy, which reads as follows: "This policy is a participating contract except when continued as non-participating paid-up Term Insurance, and the Company will annually, as of the thirty-first day of December of each year, ascertain and apportion any divisible surplus accruing hereon. Such Divisible surplus except as stated in the next succeeding paragraph, will be payable on the next anniversary of this policy following the next succeeding thirtieth day of April and May, at the option of the Insured, or of the Assignee of record, if any, be either (a) paid in cash; or, (b) applied within the grace period towards the payment of any premium or premiums; or (c) applied to the purchase of a participating paid up addition to the sum insured; or, (d) left to accumulate to the credit of this policy."
The defendant's argument then proceeds thus: If a dividend were ascertained and apportioned as of December 31, 1935, it would not be payable according to the terms of the policy before quoted until January 1, 1937, which is the anniversary date of the policy next succeeding April 30, 1936. As mentioned hereinabove, on January 1, 1937, the policy was operating upon a non-participating extended term basis and the insured was, therefore, not entitled to receive the dividend payable on that date. The policy provides specifically that participating in divisible surplus is available only to "participating" policies, that is to say, those policies under which premiums have been currently paid. The court observes, therefore, that strictly according to the terms of the policy this alleged dividend which the plaintiff now claims should be credited to the policy was not payable. If not, then the term of the extended insurance had expired prior to the death of the insured and at that time the policy was wholly out of benefit and had no value whatever.
The defendant then urges that this policy is governed by the provisions of section 83 Ins. of the Insurance Law, subdivision 2 thereof, which refers to term and industrial policies. Finally, says the defendant, a resolution of the board of directors made the payment of the 1935 dividend contingent upon payment of future premiums.
Before commencing this action, the widow's attorney wrote to the State Department of Insurance requiring its opinion. He was advised that although the Department agreed with his interpretation of the policy, the Department could only recommend favorable action on the part of the defendant. It could not compel favorable consideration of the claim. This was followed by a letter to the president of the defendant. That resulted, apparently in an offer to repay the $9.88, but not the amount of the policy.
It is further provided in that same section that the share of the surplus so apportioned shall "be applicable to the payment of any premium or premiums upon said policy or to the purchase of a paid-up addition thereto." Section 101, subdivision 5, plainly requires that each ordinary life policy contain a provision "that the policy shall participate in the surplus of the company annually." Section 89 prohibits discrimination between individuals of the same class, in the amount or payment or return of premiums or rates charged for the policies of insurance or in the dividends or other benefits payable thereon. Section 88 clearly indicates that the defendant's interpretation concerning "participation" is inaccurate.
After the so-called equity of the policy is applied to purchase extended term insurance, that extended term insurance is without participation. But that does not mean that a policyholder is thereby deprived of a right to participate which had already accrued prior to the lapse of the policy. In other words, at the end of the year 1935, the plaintiff was entitled to participate in the surplus for the year 1935 to the same extent as any other policyholder in good standing at the end of that year. Of that dividend he could not be deprived by any subsequent act of the insurance company. A forfeiture of the policy in 1936 in no wise affected his right to that dividend for 1935, and he was, therefore, entitled to be credited with the additional sum of $9.88 as a dividend for the year 1935 — a year in which his policy was in full force and effect and for which he had paid the agreed premium in full. The provision concerning "non-participation" begins to operate from the date of lapse of the policy and applies only to "dividends" declared thereafter. It does not destroy a right theretofore accrued. Since other policyholders who had paid the same premium and were in a similar position received their dividend for that year, the deceased policyholder, too, was entitled to it.
The resolution of the board of directors, urged as a defense, is equally insufficient. In the first place, the resolution by no means clearly applies to the policy in suit. It is to be doubted whether the board had before it for consideration the claim here sued upon. Since only a fragment of the resolution has been presented to this court, that doubt must be resolved against the defendant. Second, even if it were clearly applicable, it would be void to the extent that it purports to vary the terms of the policy itself, because the policy contains no such condition to the payment of dividends as is contained in the resolution. Nor may the board lawfully withhold such a "dividend" if the facts warrant its distribution. Furthermore, section 83 Ins. of the Insurance Law distinctly requires that the apportionment of dividends in the case of any policy shall not, after the first policy year, "be made contingent upon the payment of the whole or any part of the premium for the subsequent policy year." Therefore, even if there were such a provision in the policy itself, it would, in my opinion, be void, because it would contravene section 83 Ins. of the Insurance Law.
But all of the arguments of the defendant are fallacious for a more fundamental reason. They overlook the essential nature of the "dividends" to which every policyholder in a mutual company is entitled. The average policyholder purchasing a participating policy in a mutual company believes that his policy represents an investment and that he will share in the "profits" of the company. That, however, is not the fact. The so-called "dividends" are not dividends at all, in the accepted and ordinary sense of the word. In fact, they represent an excess premium or overcharge paid by the policyholder, and then returned to him, without interest, less the costs attendant upon collection and administration and various other deductions. In Rhine v. New York Life Ins. Co. ( 248 A.D. 120; affd., 273 N.Y. 1), Mr. Justice DORE, writing for a unanimous Appellate Division said (at p. 125): "As the policyholders in a mutual life insurance company have paid in more than was necessary, they are entitled to a return of such overpayments. The dividends of a mutual life insurance company are, accordingly, strictly speaking, not profits as in the case of an ordinary corporation, but really constitute a return to the policyholder of the amount he has been overcharged for his insurance. In life insurance companies operating on the mutual plan the whole of the divisible surplus is distributed among the members annually as equally as may be in the proportions in which they have contributed to it."
In other words, the policyholder creates his own surplus, by paying more for his insurance in advance than it should actually cost, based upon the mortality tables. At the end of the year, the exact amount of this excess is calculated by the company and returned pro rata to the policyholders. As Judge LEHMAN of the Court of Appeals said in the Rhine case (at p. 13): "The declaration of a dividend upon a policy reduces pro tanto the cost of insurance to the holder of the policy. That is its purpose and effect."
Viewed in this light, the defendant's contention appears to be most unreasonable. In effect, it is saying that unless the policyholder continued to make overpayments of premium for 1936 and 1937 as well, he was not entitled to a return of his overpayment of premium for 1935. Certainly, the policy does not so provide and the statute specifically prohibits that interpretation. It is plainly inequitable and unconscionable.
Furthermore, the defendant had this overpayment in its possession at the end of the year 1935 and at least down to the date of the lapse of the policy. The $9.88 in question was just as much in the possession of the defendant on the date of lapse as it is today. Thus, even if it were not actually "payable" to the insured at the end of the year 1935, it still would constitute — as between the defendant and the policyholder — an element of equity to which the policyholder might justly lay claim in the event of lapse. Put differently, the policyholder had the power to prepay the defendant to the extent of the $9.88 already in its possession. The defendant cannot complain if it received and retained it as its own property. A similar result was reached in Finley v. Massachusetts Mut. Life Ins. Co. ( 172 La. 477; 134 So. 399).
This case may, therefore, be summed up thus: The widow of the policyholder is being opposed by resourceful and technical contentions to deprive her of the amount due on the policy. The dispute concerns an overpayment of $9.88 admittedly received by the defendant as premium and retained by it for several years without conferring any benefit. The insistence by the insurance company in this case upon a strict and legalistic interpretation of the policy in suit sharply calls attention to the fact that this action is one of a large class which often comes before the courts for adjudication. A study of the principle and character of these actions which are becoming more frequent and more engrossing for the litigants and the courts, prompts the comment upon the inadequacy of the present legislation and of the means of preventing, as well as of adjusting, the disputes which have become so common in the field of insurance, at least as applied to human life. The state of the law in this field does not appear to the observation and experience of this court to have kept abreast of developments of social, economic and governmental significance which vitally affect life insurance in particular and other forms of insurance in general.
High pressure salesmanship, misleading provisions in insurance policies, unusually high lapse ratio (over sixty-six and two-thirds per cent), unfair advantages taken of inexperienced and poverty-stricken policyholders — these were but a few of the evils condemned by the Legislature when it enacted the Savings Bank Insurance Bill last year. (Insurance Law, §§ 307-339; Laws of 1938, chap. 471.) But that represents only a partial measure of remedial force in a very comprehensive and far-reaching field of public interest and welfare. When the average citizen is asked to take out a policy, he is presented with a glowing picture of the benefits which he and his family will enjoy once the policy is in force. Although the policy contains numerous phrases and provisions as to the interpretation of which even our courts do not always agree, much less attorneys, the prospect is told nothing about them. It is a rare case when the policyholder sees the policy before he applies for it. Even rarer is his study of its technical language after he receives it and pays the first premium. Indeed, there appears to be a legislative presumption that the policyholder is ignorant of the terms of his policy. (See Insurance Law, § 60, subd. [C].) It is only when the policyholder is in dire need or suffers some ill fortune that he consults the policy at all. Then, for the first time, does he find, all too frequently, that the glowing picture presented to him when he purchased the policy is nonexistent, or at least substantially marred. He discovers a mass of technical phrases, utterly meaningless to the average layman, and of doubtful import to trained minds. If misfortune should strike him, it will be the burden of his widow to read and attempt to understand the fine print and hairline-construed phrases of the policy.
Furthermore, as a result of court decisions interpreting various policies, the companies promptly make changes in the wording of their policies in order to comply with, or more often overcome, decisions favorable to the policyholders. When that policy in turn is sold to the public, nothing is told to it about either the most recent court construction or the changes made in the policy by the company. Nothing is told to the policyholder in plain language which would eliminate all question of policy construction at a later time. The result is that many years after the policy is written it is often learned that the policy bars relief because of some minor technicality.
During this entire time, the policyholder has been believing that he has been saving his money and protecting his family as well. Yet he finds to his surprise that if he desires to borrow on his own savings he must pay a substantial rate of interest for borrowing his own money. If he desires to withdraw his savings he cannot do so without canceling the entire policy. Usually he is faced with this dilemma when he can no longer obtain other insurance. That accounts for the fact that most policies do not remain in force until their natural maturity. They are either canceled or lapsed. Cancellations and lapses far outnumber the former. In addition the policyholder is led to believe that the "dividends" which the company sends him annually are actually "dividends" in the same class with the dividends which he would receive upon a share of stock in a corporation. That, as has been shown above, is a deceptive illusion.
The most poignant disappointment, however, is generally not that of the insured but that of his widow or other beneficiary, as in the case at bar. Had the insured known, when he took out his policy, that he was purchasing a lawsuit over the sum of $9.88, the sole purpose of which is to construe the policy, he in all probability would not have purchased it. He would have realized immediately that his widow would not be possessed of sufficient funds to employ counsel as skilled and learned in the technicalities of life insurance law as are counsel for the insurance company, and that the cost of litigation in this court and through various appellate courts would be prohibitive. Fortunately her counsel have presented her arguments most ably. Furthermore the mere assertion of these technicalities breeds a distrust that ought not to exist between the assured and the insurance companies. The fact that policyholders' protective associations have been organized and are thriving in increasing numbers is proof of the fact that an unhealthy condition exists.
Insurance companies perform some most valuable functions in our present day society. They should do more. If the directors of these insurance companies placed the interests of the public before the selfish interests of the company and its self-perpetuating executives, a more humane policy toward these claims would inevitably result. It is difficult to believe that in spite of repeated investigations of insurance companies and their methods, nothing has been done to jostle their management into a keener realization of responsibility and duty to the public, rather than to their own selfish ends. Insurance companies, through control of billions of dollars of public moneys, wield a vast power, too great for the kind of management exemplified by the attitude of the company in this and similar cases. The officials of these companies represent, in truth, an unofficial government that requires the stringent regulation so long sought, but not yet achieved. Many years ago Justices HUGHES and BRANDEIS pointed out some of the evils here noted. Unfortunately too few of them have been corrected. Others have been added since.
The principle of insurance is being extended to hitherto undreamed-of areas of economic and social endeavor. Its scope and effectiveness is being broadened daily. But in our dynamic society, insurance policies, as well as insurance companies, must likewise keep pace with the times. The State has now acknowledged in a multitude of ways its obligation to protect the public in any private enterprise, whenever that enterprise becomes affected with a public interest. ( German Alliance Ins. Co. v. Lewis, 233 U.S. 389.) To my mind, life insurance has reached that stage of economic and social development which requires broader governmental supervision than has heretofore been accorded it, implemented with administrative quasi-judicial machinery to deal promptly and effectively with various phases of insurance as they affect the policyholders.
That insurance is affected with a public interest, and is subject to plenary regulation and control for the public good was definitely and broadly established by the United States Supreme Court twenty-five years ago in the case of German Alliance Insurance Company v. Kansas ( supra), and yet the exercise of the legislative powers then fully recognized has lagged far behind the development of the law in cognate or analogous fields of public interest. The reasoning of the majority opinion in that case by Mr. Justice McKENNA upholding the sovereign power of regulation and the facts adduced to support the existence of such power, would seem to have pointed most strongly to the necessity of arousing a keener legislative interest in the problems of insurance and in the machinery requisite to safeguard the public as well as private interests than is evinced by the legislation enacted since 1914, at least in the State of New York, which has an unexcelled record for legislation of vast social benefit.
No one should be permitted to sell a lawsuit under the guise of an insurance policy. In spite of all theorizing, the fact is that the policyholder and the insurance company are not upon an equal footing. Indeed, the analogy to labor-employer contracts is not too remote, for today insurance is a necessity and not a luxury.
The law, however, lags behind the public interest. In sharp contrast with the development of regulatory laws and machinery for their administration and enforcement in other businesses affected with a vital public interest, the general legislative policy has been one of laissez faire — a policy long abandoned in analogous fields of economic and social welfare. The solution to this pressing problem appears to lie with the Legislature and the Governor. Perhaps a fact-finding commission consisting of representatives of the insurance companies, the general public, the bar and policyholders' associations, or similar groups, ought to be created to explore the complex problems in their various relations with the view of making recommendations to the Legislature. For example, policies ought to be standardized and considerably shortened. The suggestion made by Superintendent Pink in his recommendations to the Joint Legislative Committee of the recodification of the Insurance Law and dated October 24, 1938, to the effect that "authority should be given the Superintendent to disapprove misleading provisions in insurance policies," should be adopted.
The policy should consist of a plain and concise statement of the facts, not in technical language requiring judicial construction, but in simple words of unmistakable import that cannot be changed to favor the company by by-law, contract or otherwise, except upon direct authorization of the Superintendent of Insurance or the Legislature.
The improvements so far achieved in the form of tariff schedules and service contracts of carriers and other public utilities by regulation of the State of New York, should furnish an example for emulation and greater achievement by insurance companies. Indeed, the statute itself ought to contain the standard clauses to be inserted in every insurance policy, in equally clear language. "Fine type," verbose sentences with numerous clauses and pyramided conditions and provisos ought to be banned or at least minimized. An explanation and translation of the policy ought to be furnished to every person incapable of fully understanding the English language who requests it. The term "dividend" should be abolished and the phrase "return of excess premium" substituted therefor unless true dividends are actually declared. Before any policy is written a copy of the policy ought to be furnished to the prospective policyholder along with a booklet further explaining its implications in the light of possible circumstances. Particularly should this be true of "mutual" companies, for in that case the officials and directors of the company are trustees for the policyholders and owe them the same fealty that is owed from any trustee to his beneficiary. The board of directors of such a company should not be a mere aggregation of representative names. They should actively represent the best interests of the policyholders and not act simply as a perfunctory body, blindly perpetuating practices long condemned.
The policyholder should be told the difference between renewable term insurance and so-called "straight life insurance," which is really insurance or savings, although both are paid for simultaneously. The policyholder should be told the facts at least as clearly as they are contained in the booklets distributed by the State Department of Insurance, Savings Bank Life Insurance Division.
"It will take considerable courage and effort to alter the situation but this is exactly what the companies are called upon to do. They must exercise their best leadership in an effort to put the sale of industrial insurance on a higher plane. Quality, service to the public, and not mere production must be the goal." Though this quotation refers to industrial life insurance, it is equally applicable to ordinary life insurance. It is to be hoped that the protection here urged will not be long in coming.
The motion for summary judgment should be granted in all respects.


Injunctive relief from a court is certainly a legal remedy available to enforce rights under the Open Meetings Act to obtain access where someone has been barred from attending what should be a public session. However, the ability to meaningfully pursue this given time constraints when a meeting is either occurring or imminent, not to mention cost considerations, make it difficult to effectively use the courts to secure access to any given meeting at which a problem arises. It is easier to obtain review afterwards to determine whether the meeting should have been closed, and rely on prospective effect to prevent recurrences of the problem. This should underscore the need for reporters and others who regularly seek access to public meetings to work with public officials in advance. Try to ensure that they are educated with respect to their obligations under the Public Records Act, and the public policies favoring liberal access to meetings of public bodies. Reporters may also try to cultivate sympathetic members of public bodies who will represent the public's interest in openness from "inside the tent."
If the citizen learns of the executive session at the meeting itself (e.g., when the announcement of a closed session is made), prospective relief is out of the question. However, the citizen should register his or her objection and argue that an open meeting is required. If a post-meeting challenge is then made under the FOIA, he or she will have exhausted administrative remedies and may seek a declaratory judgment or invalidation of the action taken at the meeting.
A state body or legislative body of a local agency cannot bar a person from attending or place conditions on attending a meeting; such action constitutes a violation of the open meeting laws and is actionable. Cal. Gov't Code §§ 11123, 11124, 11130 (Bagley-Keene Act); 54953, 54953.3, 54960 (Brown Act).
In general, a person who seeks access to a meeting should attend and request admittance. Unruly or indecorous conduct of the person seeking admittance is not advisable, since this will only give the public body legitimate grounds for exclusion.
In Brodinsky v. FOIC, No. CV030520584S, 2004 WL 3130229 (Conn. Super. Ct. Dec. 15, 2004), the court held that a town council member who had voted against holding executive session and subsequently voluntarily absented himself from the same executive session had not been "denied access" and did not have standing to appeal to the judicial system.
An informal or formal challenge is ripe and advisable as soon as a violation of the Act has occurred or is threatened.
The Director of the Office of Information Practices (OIP) is charged with administration of the open meetings law and establishing the procedures for filing and responding to complaints filed by any person concerning the failure of any board to comply with the open meetings law. Haw. Rev. Stat. § 92-1.5 (Supp. 1999).
A person who feels he or she has been illegally barred from a meeting should argue that the "board" in question is covered by the Sunshine Law, that none of the exemptions apply to the meeting, and that therefore the meeting should be open. If this fails, the person is advised to contact an attorney who can negotiate with the board's attorney and, if necessary, file suit against the "board."
Any person, including the State's Attorney, may bring a civil action in circuit court for the judicial circuit in which the alleged noncompliance has occurred or is about to occur. See 5 ILCS 120/3(a). The action must be brought prior to or within 60 days of the meeting alleged to be in violation. See Id.
A demand to comply with the KOMA is never too late and can be made seconds before the meeting is held, unless the issue is notice of the meeting. K.S.A. 75-4318 requires that notice of a meeting be requested before it is required to be given (Note that other organizational statutes and ordinances require notice of meetings to be published without interconnection to KOMA).
When barred from attending an agency's public meeting, one may protest orally or in written form. However, the Open Meetings Act does not require contemporaneous objections. The Act only contemplates written complaints submitted after the fact.
A public agency violates the Open Meetings Act when it fails to make a good faith effort to handle overflow crowds because Ky. Rev. Stat. 61.840 requires that “[a]ll agencies shall provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings.” See 97-OMD-28.
Actions to enforce the Open Meeting Law should be filed as promptly as possible after an alleged violation occurs.
Section 3-401, provides for enforcement of the Act through judicial review. It does not apply to matters involving the appropriation of public funds; levying a tax; or providing for the issuance of bonds, notes, or other evidences of public obligation. § 3-401(a)(1). These exceptions do not govern the use of OMCB complaint procedures. See §§ 3-205, 3-212, 3-401(a)(3). In addition, a court may not void the action of a public body due to another public body's violation of the Act. § 3-401(a)(2).
Closed meeting is void if successful suit filed within 120 days of meeting. Closed meeting is voidable if successful suit filed after 120 days from meeting, but before one year after meeting. Suit is time-barred if not filed within one year of meeting. Neb. Rev. Stat. §84-1414(1).
An injunction may be attained before the meeting, pursuant to the Nevada Rules of Civil Procedure, to require compliance with the law. NRS 241.037.
Whenever a member of the public believes that a meeting is being held in violation of the act, that person shall immediately state this at the meeting together with specific reasons, which shall be recorded in the minutes. If the objections are overruled by a majority of the public body, any member of the body objecting may continue to participate at such meeting. N.J.S.A. 10:4-17..
No specific special rules, but the usual rules for obtaining a Temporary Restraining Order to open a meeting would apply. No specific statute of limitations exists, but laches may be a problem. The general limitation period, four years, is contained at NMSA 1978 §37-1-4.
Any person can file suit to challenge being barred from attending a meeting of a public body and seek injunctive relief allowing access to the meeting.
When a public body threatens to bar public attendance from a future meeting, the person seeking to attend may commence an injunction action in common pleas court. Ohio Rev. Code § 121.22(I)(1).
The act does not provide an expedited procedure. It does, however, allow for the actions taken in violation of the act to be declared null and void. In re Appeal of the Order Declaring Annexation Dated June 29, 1978, supra (court invalidated action of board taken in violation of Open Meeting Act).
The public cannot be barred unless an appropriate executive session has been called. Unless there is a statutory basis under ORS 192.660(4) or (5), representatives of the media may not be barred.
The act does provide that a violation of the act is an irreparable injury for which no adequate remedy at law exists, so injunctive relief may be sought. S.C. Code Ann. § 30-4-100.
Must be careful to assert that matter is not moot because it is capable of being repeated without any opportunity to make a timely challenge.
The only specified remedy for public exclusion from meeting covered by the Act is court review.
When a party desires a ruling prohibiting certain conduct—such as holding a closed meeting—a request for a prohibitory injunction should be filed before the meeting occurs.
Any person denied access to a public meeting may commence suit to compel compliance with, or enjoin violations of, the Open Meetings Act. Utah Code § 52-4-303(3)(a).
In practice, interested persons — e.g., news reporters — try to make their concerns known to the public body as loudly and as early as possible, in the hopes that logic, or more likely political acumen, will influence the body’s decision not to go into a questionably legitimate executive session. The reality is that almost all such situations are likely to have already occurred, especially where local boards typically meet in the evening hours, before there is even an opportunity to pursue judicial relief.
The most common relief awarded for violations of the Open Meeting Law, including when the public is barred from attending a public meeting, is to invalidate the decision and order that the public body hold a new meeting that complies with the requirements of the statute. See, e.g., Moorcroft v. Town of Brookfield, No. 147-7-10, 2011 Vt. Super. LEXIS 81, *8 (Vt. Super. Orange County Nov. 8, 2011); Kevan v. Town of Randolph Selectboard, No. 137-7-05 2006 Vt. Super. LEXIS 7, *12 (Vt. Super. Orange County July 31, 2006). Courts will not, however, invalidate the decision if the public body cured the Open Meeting Law violation by ratifying its decision in a subsequent meeting that complied with the statute. See Valley Realty & Dev. v. Town of Hartford, 165 Vt. 463, 469, 685 A.2d 292, 296 (Vt. 1996).
The individual may petition the court for a writ of mandamus pursuant to the Act's enforcement provisions. Va. Code Ann. § 2.2-3713.
Section 3 of the Open Meetings Act specifically authorizes the enforcement of the right to attend an open meeting through a civil action filed in the circuit court where the public agency regularly meets. The suit must be brought within 120 days "after the action complained of was taken or the decision complained of was made. W. Va. Code § 6-9A-3. No bond need be posted as a prerequisite to injunctive relief" unless the petition appears to be without merit or made with the sole intent of harassing or delaying or avoiding return by the governing body. Circuit courts are authorized to "compel compliance or enjoin noncompliance" and "annul a decision made in violation of this article." W. Va. Code § 6-9A-6.
It is not clear that a citizen must have been personally barred from attending to have standing to challenge an illegally closed or unnoticed meeting.


text:
The expansive view of tangible or intangible property has been confirmed by U.S. courts. See World Fuel Services v. SE Shipping Lines (Rule B does not identify specific legal interest in property a defendant must have before it is subject to seizure; in prior ruling, Court concluded defendant had a right of possession, a legal interest, in the bunkers); Aifos Trade SA v. Midgulf International Ltd. (evidence showed at time of attachment defendant retained at least some legal interest in attached funds); HBC Hamburg Bulk Carriers GMBH & Co. v. Proteinas y Oleicos S.A. de C.V. (in context of competing interests, nothing in Rule requires that property attached be exclusive property of defendant).
Question: can a charterer’s interest in the use of a vessel be attachable under Rule B?
In Kingston Dry Dock Co. v. Lake Champlain Transp. Co., the attachment of vessels was based on a conditional buyer’s possession of the vessels and “equitable” interest in them despite the fact title to the vessels remained technically with the conditional seller until such time as the vessels were paid for in full. Thus, the conditional buyer who had possession, but not title, had an attachable interest in the vessels.
But in McGahern v. Koppers Coal Co., the existence of a bareboat charter did not permit attachment of the vessel itself. A bareboat charterer may be treated as owner pro hac vice, but this merely confers a right to possession of the vessel not the equivalent of title and does not subject the vessel to the general debts of the charterer. Court distinguished between an attachment of the vessel itself, and attachment of the bareboat charterer’s interest in the vessel (which it did not decide, since the issue before it was limited to attempted attachment of the vessel).
In Applewhaite v. S.S. Sunprincess, in dicta, the Court said a time-charterer’s interest in a vessel would not be attachable, because the only asset available for judicial sale would be the contract rights arising out of the charter, and the nature of a charter agreement is a manifestation of intent of the parties that it not be assignable. But this statement may no longer be valid due to sub-let clauses in form charter parties.
In Interpool Limited v. Char Yigh Marine (Panama) S.A., the 9th Circuit held a vessel could be attached to secure a claim against a time charterer, where the charter in question was not a true lease with a reversionary ownership interest, but a disguised security interest in connection with purchase of the vessel. Applying commercial law under the UCC relating to leases of equipment and machinery, the Court stated that if a document purporting to be a lease was in fact part of a security arrangement, the ‘lessor’ did not have a reversionary ownership interest in the subject of the ‘lease’ and that the ‘lessee’ was viewed as owner.
Answer: Where a charterer has a right to purchase the vessel at the end of the charter period, this may be sufficient to establish an attachable interest in the vessel under Kingston Dry Dock and Interpool.
Federal courts are permitted to adopt state law precedent (see New York state law in Jaldhi), such as the UCC in Interpool. Under New York law, for example, a lessee’s interest in an automobile has been found to be seizable. See Gleich v. Rose. Going forward, a claimant may be so bold as to file a Rule B based on a charterer’s interest in the use of a vessel.

matches: v. v. v. v. v. v. v. v.


text:
Origin. The American arbor vitae or Washington cedar is known botanically by a number of synonyms: Thuja plicata, Lamb, non Don, Th. gigantea, Nutt., Th. Menziesii, Dough, 777. Doug/asii, Nutt. and 777. Lobii hort. or more correctly Th. Lobbi hort., after Lobb, who in 1853 introduced the tree into Europe from western America.
1) Liebig's Annalen 275 (1893), 182.
2) Wallach, Liebig's Annalen 279 (1894), 384.
3) Berl. Berichte 27 (1894), 895.
4) Liebig's Annalen 353 (1907), 213.
5) Report of Schimmel & Co. April 1892, 57.
Properties and Composition. From the air dried leaves of the Pacific arbor vitae, also known as red cedar or canoe cedar along the Pacific coast of North America, W. C. Blasdale1) obtained 2,8 p. c. of a volatile oil of terpene-like odor and the following constants: d15o 0,8997; aD + l°45'; nD 1,4575; b. p. 150 to 225°. Besides thujone, which was isolated from fraction 198 to 200° (d15o 0,9142; aD - 0°52'; nD 1,4532) and characterised in the usual manner, no other constituents of the oil could be identified.
According to J. C. Frye, the material distilled by I. W. Brandel and A. H.Dewey2) was obtained from Thuja plicata = Th. gigantea = Th. Menziesii. Upon distillation with water vapor the leaves and twigs yielded 0,8 to 1,4 p. c. of a light yellow oil, with a slightly pungent camphor-like odor. d25o 0,9305; aD25o - 6,9°; A. V. 0,518; S. V. 5,7; E. V. after acetylation 6,2; soluble in all proportions in 70 p. c. alcohol. More than 75 p. c. of the oil distilled between 190 and 203°. It is remarkable that each and every fraction of the oil, which was laevogyrate originally, after fractionation was dextrogyrate. Terpenes were present to the extent of about 3 p. c. Of these a-pinene was identified by its nitrosochloride melting at 103°. The presence of cymene was not definitely established since fraction 175 to 180° upon oxidation yielded only a small amount of an acid melting at 121°. Thujone was found principally in fraction 200 to 203°. It was characterized by its tribromide and by the boiling point of the ketone (203°) regenerated from the acid sulphite addition product. After the thujone had been removed, the presence of fenchone in the principal fraction, mainly 190 to 197,5°, was established by its oxime melting at 164°. The residue remaining above 220° revealed a high saponification value and doubtless contained borneol ester since, upon oxidation with nitric acid, camphor was obtained. After reduction with sodium and alcohol, the oil yielded upon acetylation an ester value of 96,83 p. c. corresponding to about 28,5 p. c. of alcohols.
1) Journ. Americ. chem. Soc. 29 (1907), 539. 2) Pharm. Review 26 (1908), 248.
The leaves distilled by Schimmel & Co.1) were sent by Prof. Heckel of Marseilles and labled Thuja Lobii.
About 1,32 p. c. of an oil of a light yellow color and a strong thujone odor were obtained. Like the oil discribed by Blasdale, it was dextrogyrate: d16o 0,9056; aD + 5°4'; nD20o 1,45721; A.V. 0,8; E. V. 16,9; soluble in 70 p. c. alcohol (about 1:8) but always with opalescence; with 1,2 vol. and more of 80 p. c. alcohol it, however, forms a clear solution. The thujone, isolated by means of the semicarbazone, revealed itself as /-a-thujone. After twofold recrystallization from alcohol, the semicarbazone melted at 185 to 186°. The optical rotation of the thujone regenerated therefrom with phthalic acid anhydride amounted to aD - 5° 12'.
Finally, R. E. Rose and C. Livingston2) have distilled an oil from the leaves and twigs with a yield of 1 p. c. which possessed the following properties: d20o 0,913; [a]D20o - 4,77°; nD20o 1,4552; A. V. 0,518; E. V. 2,28; E. V. after acetylation 8,8. It was soluble in 70 p. c. alcohol in all proportions. 85 p. c. of the oil boiled between 100 and 110° (40 mm.) and consisted of a-thujone (m. p. of the tribromide 121 to 122°; of the semicarbazone 186 to 188°). In addition the oil contained 3 to 5 p. c. of d-a-pmene, which was identified by means of its physical constants and its nitroso-chloride. These investigators also found 1 to 3 p. c. of d-tanacetyI alcohol which was characterized by its physical constants: b. p. 210 to 220°; d25o 0,9266; [a]D25o + 29,8°; nD26o1,46207. It appears to exist in the oil as acetate. Fenchone was not found.
Upon distillation of the shavings of the wood with water vapor and shaking out of the aqueous distillate with ether, Blasdale3) obtained white crystals which melted at 80°, which had the characteristic pungent odor of the wood, and which possibly have the formula C10 H12 O2.

matches: V. V. V. V. V. V. V.


text:
Swarovski There are 25 products.
6mm Swarovski Crystal Cube (AB) Sterling Rosary Bracelet Boxed 6 mm Crystal Swarovski Cube Traditional Rosary Bracelet in Fine Sterling Silver.
6mm Swarovski Pink Cube (AB) Sterling Silver Rosary Bracelet - Boxed Traditional Rosary Bracelet in Fine Sterling Silver.
7mm Swarovski Lt Sapphire (AB) Sterling Silver Rosary Bracelet - Boxed Traditional Rosary Bracelet in Fine Sterling Silver.
6mm Swarovski Caribbean Blue Sterling Rosary Bracelet Boxed 6 mm Caribbean Blue Swarovski Traditional Rosary Bracelet in Fine Sterling Silver.
6mm Swarovski Crystallite Sterling Rosary Bracelet Boxed 6 mm Chrysolite Swarovski Traditional Rosary Bracelet in Fine Sterling Silver.
6mm Swarovski Crystal(AB)Sterling Rosary Bracelet Boxed 6 mm Crystal Traditional Rosary Bracelet in Fine Sterling Silver.
6mm Swarovski Light Rose(AB)Sterling Silver Rosary Bracelet - Boxed Traditional Rosary Bracelet in Fine Sterling Silver.
6mm Swarovski Pink (AB) Sterling Silver Rosary Bracelet - Boxed Traditional Rosary Bracelet in Fine Sterling Silver.
6mm Swarovski Erinite (AB) Sterling Rosary Bracelet Boxed 6 mm Erinite Swarovski Traditional Rosary Bracelet in Fine Sterling Silver.
6mm Swarovski Fuchsia (AB) Sterling Silver Rosary Bracelet - Boxed Traditional Rosary Bracelet in Fine Sterling Silver.
6mm Swarovski Opal (AB) Sterling Silver Rosary Bracelet Boxed 6 mm Opal Swarovski Traditional Rosary Bracelet in Fine Sterling Silver.
6mm Swarovski Silk (AB) Sterling Silver Rosary Bracelet - Boxed Traditional Rosary Bracelet in Fine Sterling Silver.

matches:
in Fine
in Fine
in Fine
in Fine
in Fine
in Fine
in Fine
in Fine
in Fine
in Fine
in Fine
in Fine


text:
We take the protection of your data very seriously and treat your personal data confidentially and in accordance with legal regulations. As new technologies and the continuous development of this website may result in changes to this data protection declaration, we recommend that you read the data protection declaration again at regular intervals.
Definitions of the terms used (e.g. "personal data" or "processing") can be found in Art. 4 of the General Data Protection Regulation (GDPR).
The following declaration gives you a quick and simple overview of which personal data we process from you. We will also inform you of your rights under applicable data protection law and tell you who to contact if you have any questions.
Who is responsible for data processing, whom can I contact?
As the responsible authority, we take all legal measures to protect your personal data and act on behalf of the processing depository CACEIS Bank S.A., Germany Branch.
Any person concerned can also contact our data protection officer directly at any time with any questions or suggestions regarding data protection..
Cookies are set on the basis of Art. 6 para. 1 lit. f GDPR. As the operator of this website, we have a legitimate interest in the storage of cookies for the technically error-free and smooth provision of our services.
Savills Fund Management GmbH collects, stores and processes personal data of the investor insofar as this is necessary for the provision of services by Savills Fund Management GmbH and is prescribed or permitted by law. Personal information is any information that is used to identify you and which can be traced back to you, such as your name, e-mail address and telephone number.
Any further use of the investor's personal data will only take place if the investor has expressly consented. The investor can revoke any consent at any time. The provisions of data protection law are observed.
The data is stored on servers in Germany, used confidentially only for processing within the Savills Investment Management Group and not passed on to third parties outside the Savills Investment Management Group. All data is technically and physically protected against unauthorized access. Upon request, the investor will receive information about the personal data stored about him/her at any time and free of charge.
Savills Fund Management GmbH assures the visitor that his data will be treated with the greatest care and in compliance with the relevant regulations.
Savills Fund Management GmbH collects, stores and processes personal data of the investor insofar as this is necessary for the provision of services by Savills Fund Management GmbH and is prescribed or permitted by law. The basis of data processing here is therefore the processing of data for the fulfilment of a contract or pre-contractual measures pursuant to Art. 6 para. 1 lit. b GDPR. Personal information is any information that is used to identify you and which can be traced back to you, such as your name, e-mail address and telephone number.
Any further use of the investor's personal data will only take place if the investor has expressly consented. The investor can revoke any consent for the future at any time. The provisions of the applicable data protection law are observed.
If you contact us as the operator of this website through the contact options offered, your details will be stored so that they can be used to process and respond to your enquiry. This data will neither be passed on to third parties nor processed for any other purpose without your consent. The basis of data processing is therefore Art. 6 para. 1 letter b GDPR, which permits the processing of data for the fulfilment of a contract or pre-contractual measures.
If you leave a contribution or comment on this website, your IP address will be saved. This is done on the basis of our legitimate interests within the meaning of Art. 6 para. 1 lit. f. GDPR and serves the security of us as website operator: Because if your comment should offend against valid right, we can be sued for it, why we have an interest in the identity of the comment and/or contribution author.
Due to our legitimate interests, this website uses for the optimisation and analysis of our online offer in the sense of Art. 6 para. 1 letter f. GDPR the service "Google Analytics", which is provided by Google Inc. (1600 Amphitheatre Parkway Mountain View, CA 94043, USA). The service (Google Analytics) uses "cookies" - text files which are stored on your end device. The information collected by the cookies is usually sent to a Google server in the USA and stored there.
IP anonymisation is used on this website. The IP address of users will be reduced within the member states of the EU and the European Economic Area and in the other signatory states to the agreement. Only in individual cases can the IP address initially be transferred to a Google server in its entirety in the USA and shortened there. This reduction eliminates the personal reference to your IP address. The user's IP address transmitted by the browser is not combined with other data stored by Google.
As part of the agreement on order data, which we as website operator have concluded with Google Inc., Google uses the information collected to evaluate the use of the website and website activity and to provide services connected with the use of the Internet.
Alternatively, you can prevent Google Analytics from collecting data about you within this website by clicking on this link (will be forwarded after installation). By clicking on the link above you can download an "Opt-Out-Cookie". Your browser must therefore allow cookies to be stored. If you delete your cookies regularly, you will need to click on the link again each time you visit this website.
you. You also have the right to have incorrect data corrected and to have your personal data processed or deleted. If applicable, you may also assert your right to data portability. If you believe that your data has been processed unlawfully, you can lodge a complaint with your competent supervisory authority.
If your request does not conflict with a legal obligation to store data (e.g. data retention or a legal obligation to store data), you are entitled to have your data deleted. We delete your personal data as soon as they are no longer required for the original purpose and there is no legal or other obligation for us to keep them. If deletion is not possible because the data is required for legal purposes, data processing will be restricted. In this case, the data will be blocked and not processed for other purposes.
Users of this website may exercise their right of objection and object to the processing of their personal data at any time in the future.
If processing is based on a legitimate interest of ours, you have the right to object to the processing of personal data concerning you at any time for reasons arising from your particular situation. We will then no longer process the personal data unless we can prove compelling reasons worthy of protection for the processing, which outweigh your interests, rights and freedoms, or the processing serves to assert, exercise or defend legal claims.
If you wish to have your personal data stored corrected, blocked or deleted, or if you have any questions regarding the collection, processing or use of your personal data, or if you wish to withdraw your consent, please contact the following e-mail address: info(at)savillsim.remove-this.de.

matches:
Art. 4
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6


In the three weeks since the enactment of the Emergency Economic Stabilization Act of 2008 ("EESA" or "Act"), the Treasury Department has moved quickly to implement the Troubled Asset Relief Program ("TARP") under the Act. The TARP will offer significant opportunities to financial institutions--to obtain a capital investment from the Treasury, to sell troubled assets to the Treasury, or to obtain insurance for their troubled assets.
On October 14, the Treasury announced the Capital Purchase Program (the "CPP") under the TARP. The CPP will use the first tranche of available TARP funds1 to purchase up to $250 billion of senior preferred shares on standardized terms from bank and thrift institutions.2 The first $125 billion will be invested in nine large, systemically important bank holding companies. The remaining $125 billion will be available for other institutions, and the Treasury has indicated that there will be sufficient capital for all qualifying institutions.3 But they must act quickly, as the deadline to apply for the CPP is November 14, 2008, 5 P.M., EDT.
In addition, Treasury officials are working diligently to establish other TARP programs, including designing auctions to purchase mortgage-backed securities and other troubled assets, identifying which whole loans (at what value and how) to purchase, establishing a program for systemically significant failing institutions, and developing a program to insure assets.4 Institutions deciding whether to participate in the CPP and these other programs will need to consider carefully all the program terms, including corporate governance rules, which are analyzed in detail below. Following up on the WilmerHale webinar on EESA on October 10th,5 this newsletter analyzes the opportunities and considerations for institutions to participate in the CPP and other facilities under the TARP.
Eligible Institutions. The CPP is available only for bank holding companies, financial holding companies, insured depository institutions, and saving and loan holding companies that engage solely or predominately in activities permissible for financial holding companies. In addition, institutions controlled by a foreign entity are not eligible. All capital purchases will occur at the highest-tier holding company, unless the depository institution is not controlled by a company.
Although this direct capital infusion program is limited to bank and thrift organizations, the Treasury has indicated that such eligibility restrictions will not necessarily apply to other TARP programs. Under the Act, eligible "financial institution[s]" are defined as "any institution . . . established and regulated under the laws of the U.S. or any State, territory, or possession of the U.S....and having significant operations in the United States."7 This definition expressly includes depository institutions, brokers, dealers and insurance companies, and expressly excludes "any central bank of, or institution owned by, a foreign government."8 In future programs, the Treasury will have to determine the full extent of the definition, including, for example, whether hedge funds or non-depository mortgage companies are eligible.
CPP Terms. While the Treasury has not yet made public any standardized documentation for CPP, it has released a term sheet and guidance that provide a general overview.9 The CPP will enable institutions to obtain new capital in the form of senior preferred stock equal to, at a minimum, 1% of risk-weighted assets, and up to a maximum of the lesser of 3% of risk-weighted assets or $25 billion. The CPP senior preferred shares will pay a dividend rate of 5% that will increase to 9% after five years.
The preferred stock will be nonvoting, other than certain customary consents on matters that could adversely affect the shares and a right to elect two additional directors in the event of certain nonpayment of the preferred dividends. The shares will be cumulative, except if issued by a depository institution that does not have a holding company. And the shares will be perpetual and redeemable at par, plus accrued dividends (subject to regulatory approval) after three years, or earlier with the proceeds of certain replacement equity offerings equal to at least 25% of the issue price of the preferred stock.
The CPP senior preferred stock will qualify as Tier 1 capital and will rank senior to common stock and pari passu with existing preferred stock other than junior preferred. Dividends on common stock and pari passu preferred stock will generally not be allowed unless the CPP preferred dividends have been paid, and the institutions will agree that, unless the CPP preferred stock has been redeemed, they will not increase their common stock dividends or buy back their common stock, subject to certain exceptions, for a period of three years.
The senior preferred stock issued pursuant to the CPP will be transferable and subject to registration rights. The Treasury intends to fund its purchase of all such senior preferred shares by the end of 2008.
The CPP demonstrates some of the flexibility built into the Treasury's authority under EESA. The statutory "troubled assets" that the Treasury may purchase under the Act are defined to include not only mortgages and mortgage-related assets, but also any other asset that the Treasury determines (after consulting with the Federal Reserve Board Chairman, and upon appropriate notice to Congress) is necessary to promote "financial market stability." 10 Treasury has interpreted this term to include the purchase of equity in a financial institution or its parent company. This same broad definition will be interpreted in the Treasury's implementation of its future programs to purchase and insure troubled assets.
EESA prohibits the Secretary of the Treasury (the "Secretary") from purchasing any troubled asset from a financial institution unless it receives warrants of this type. For publicly traded institutions, EESA requires the Treasury to receive warrants for nonvoting common stock, preferred stock or voting common stock with the exercise price set by the Treasury, but further provides that upon exercise the Treasury cannot exercise voting power.12 For non-publicly-traded institutions, the Treasury must receive a warrant for common or preferred stock or a senior debt instrument of the financial institution.13 In these circumstances, however, the Treasury is not barred from voting such common stock.
The purpose of the prohibition on the Secretary exercising voting power seems to be to prevent the Treasury from acquiring voting power or control over the institutions. The Treasury's warrants for voting stock, however, could be transferred to third parties that would not be subject to the non-voting restriction. Even where the Treasury acquires only non-voting equity, substantial government ownership could raise unusual fiduciary duty issues--for example, an institution's Board might need to consider if it owed a different or special duty to the Treasury/taxpayers in circumstances where the government's interests might be different from those of the private stockholders.
Institutions interested in participating in the CPP and the additional TARP programs should consider a number of factors, including: (i) the potential for ongoing oversight at multiple government levels of the TARP, and (ii) perhaps most importantly, the executive compensation and corporate governance restrictions.
Institutions participating in the TARP should be aware that the Treasury's administration of the TARP is subject to a number of overlapping layers of oversight.
These numerous and overlapping layers of oversight mean that TARP participants may expect to be subject to high levels of scrutiny by numerous different persons and entities. It is clear that participants' corporate governance and executive compensation practices, as discussed in detail below, will be subject to scrutiny, but other areas may be as well, such as: disclosure practices,26 the use of funds derived from the TARP, and practices with respect to foreclosure avoidance and loss mitigation on underlying mortgage loans.
The financial crisis has brought the contentious issue of executive compensation to the forefront and made it a central piece of EESA. Notwithstanding the public excoriation of CEOs who have received substantial compensation packages while their companies have failed, there was significant resistance to including limitations on executive compensation in the final legislation. The result is a complex compromise that differentiates between types of federal assistance and vests substantial authority in the Secretary to determine executive compensation and corporate governance standards for participating financial institutions.
On October 14, 2008, the Treasury issued an interim final rule and guidelines on the executive compensation provisions in EESA. The interim rule applies to the CPP and is effective as of October 20, 2008.27 The remaining guidelines apply to the TAAP (the Treasury's program to purchase troubled assets through auction)28 and the PSSFI (a program the Treasury is developing to purchase troubled assets from systemically significant failing financial institutions),29 and are effective as of October 3, 2008 (the date of enactment of EESA). The law and implementing guidance significantly tighten current restrictions on executive compensation for participating institutions. They also limit the deductibility under the IRC of some executive compensation. Financial institutions must adopt the Treasury's standards to participate in the TARP programs.
EESA section 111 governs payment of executive compensation to "senior executive officers" ("SEOs") of all financial institutions (public or private) participating in any program under the TARP. SEOs are the institution's CEO and CFO, or those performing similar functions, and the next three highly compensated executive officers, as defined under SEC executive compensation disclosure rules.30 EESA section 302 contains a $500,000 limitation on the deductibility of compensation paid to "covered executives." It also limits the deductibility of excess golden parachute payments to covered executives and imposes an excise tax on the executives on any excess parachute amounts. In general, covered executives and SEOs are determined based on similar rules, but there are important differences in how such status is determined. For SEOs, compensation is determined based on current fiscal year compensation; for covered executives, compensation is determined based on the current applicable calendar year compensation. Further, once an executive is considered a covered executive, he or she generally remains a covered executive. Thus, for section 302 purposes, compensation paid to more than five persons may be subject to the deductibility limitations and excise tax. While there is likely to be significant overlap between executives who are SEOs and covered executives, it is likely that additional executives will be covered executives who are not SEOs.
The Treasury guidance makes clear that two or more financial institutions that are treated as a single employer under the IRC will be treated as a single employer under EESA. Under tax rules, control is generally based on 80 percent ownership. The controlled group rules do not apply to brother-sister controlled groups or combined groups.31 Thus, the SEOs of a parent of a participating financial institution will be subject to the executive compensation provisions.
EESA establishes two different sets of requirements for executive compensation depending on whether the Treasury acquires assets directly or through auction. Direct purchases involve a more stringent set of standards than auction purchases.
Section 111(b) and the Treasury rules impose three enumerated limitations on executive compensation of SEOs of institutions participating in the CPP or the PSSFI. These provisions will affect existing as well as new executive compensation arrangements.
Within 90 days of the purchase by the Treasury, a financial institution must review, through its compensation committee and together with its senior risk officers, the SEO incentive compensation arrangements to ensure that they do not violate this provision.
After the initial review, the compensation committee must meet at least annually with senior risk officers to discuss and review the relationship between the institution's risk management policies and practices and the SEO incentive compensation arrangements.
The compensation committee must certify the completion of the required reviews. The certification may state: "The compensation committee certifies that it has reviewed with senior risk officers the SEO incentive compensation arrangements and has made reasonable efforts to ensure that such arrangements do not encourage SEOs to take unnecessary and excessive risks that threaten the value of the financial institution."
It is worth noting that the criteria enumerated in EESA section 111(b) are not exclusive. The section gives the Secretary general authority to require that financial institutions meet "appropriate standards for executive compensation and corporate governance" that include at least the three specified criteria (no incentives for excessive risk; clawback provision; and no excess golden parachute). The reference to "corporate governance" could give the Secretary power to impose other, even more expansive corporate governance changes. Some earlier versions of the bill included "shareholder access" and "say-on-pay" provisions. While these were deleted as specific requirements, the Secretary appears to have power to impose them or other rules. These could apply to both public and private companies.
1 There are three tranches of available funds under the TARP. The first tranche of $250 billion became available upon the enactment of EESA on October 3, 2008. An additional $100 billion is available upon submission by the President of a written certification to Congress. The remaining $350 billion, of the total $700 billion, is available upon the President's submission to Congress of a written report detailing the plan of the Secretary, unless Congress passes a joint resolution of disapproval within 15 days of such submission. Section 115 of EESA.
2 The term sheet is available here.
3 "Sufficient capital has been allocated so that all qualifying banks can participate. Let me be clear that this program is not being implemented on a first-come-first-served basis." Statement by Secretary Henry M. Paulson, Jr. on Capital Purchase Program, U.S. Dep't of Treasury, Press Release (October 20, 2008), available here.
4See the remarks of Assistant Secretary for Financial Stability Neel Kashkari before the Institute of International Bankers, available here.
5 An audio recording of the webinar is located here.
6See, generally U.S. Dep't of Treasury, Treasury Announces TARP Capital Purchase Plan Description (Oct. 14, 2008), available here, and Treasury, Regulators Issue Additional Guidance on Capital Purchase Program, available here.
7 Section 3 of EESA.
10 Section 3 of EESA.
11 The U.S. Dep't of Treasury's CPP term sheet provides that the Treasury "may only transfer or exercise an aggregate of one-half of the warrants prior to the earlier of (i) the date on which the qualifying financial institution has received aggregate gross proceeds of not less than 100% of the issue price of the Senior Preferred from one or more Qualified Equity Offerings and (ii) December 31, 2009." The term sheet is available here.
12 Section 113(d) of EESA.
16 Section 114(a) of EESA requires public disclosure of such transaction a description, amounts and the pricing of assets acquired under the Act, within two business days of purchase, trade, or other disposition.
17 U.S. Dep't of the Treasury, Development of a Guarantee Program for Troubled Assets (Oct. 14, 2008), available here.
18 Section 101(b) of EESA.
19 Section 104(a) of EESA. The Financial Stability Oversight Board is charged with reviewing the exercise of authority under a program developed in accordance with the Act, including: (A) policies implemented by the Secretary and the Office of Financial Stability created under sections 101 and 102, including the appointment of financial agents, the designation of asset classes to be purchased, and plans for the structure of vehicles used to purchase troubled assets; and (B) the effect of such actions in assisting American families in preserving home ownership, stabilizing financial markets, and protecting taxpayers. The Board is also charged with making recommendations, as appropriate to the Secretary regarding the use of authority under the Act and reporting any suspected fraud, misrepresentation, or malfeasance to the Special Inspector General for the Troubled Assets Relief Program or the Attorney General of the United States, consistent with 28 U.S.C. § 535(b).
20 Section 104(b) of EESA.
21 See, the remarks of Assistant Secretary for Financial Stability Neel Kashkari before the Institute of International Bankers, available here.
27 U.S. Dep't of the Treasury Interim Final Rule, 31 C.F.R. Part 30, pending publication in the Federal Register on October 20, 2008.
28 U.S. Dep't of Treasury, Notice-2008--TAAP--Troubled Asset Auction Program (Oct. 14, 2008), available here; and IRS Notice 2008-94, (Oct. 14, 2008), available here.
29 U.S. Dep't of Treasury, Notice 2008-PSSFI--Program for Systemically Significant Failing Institutions (Oct. 14, 2008), available here.
30 Section 111(b)(3) of EESA; See, also Interim Final Rule, 31 C.F.R. Part 30, § 30.2 Q-2; Notice 2008-PSSFI, Q-2, A-2.
31 Interim Final Rule, 31 C.F.R. Part 30, § 30.1 Q-1(b); Notice 2008-PSSFI, Q-1, A-1.
32See, definition of "Executive Compensation" in the U.S. Dep't of Treasury's CPP term sheet. The term sheet is available here.
33 Section 111(b)(2)(A) of EESA.
34 Interim Final Rule, 31 C.F.R. Part 30, § 30.4 Q-4; Notice 2008-PSSFI, Q-4, A-4.
35 Interim Final Rule, 31 C.F.R. Part 30, §§ 30.3 Q-3, 30.4 Q-4, and 30.5 Q-5; Notice 2008-PSSFI, Q-5, A-5.
36 Section 111(b)(2)(B); Interim Final Rule, 31 C.F.R. Part 30, § 30.6 Q-6; Notice 2008-PSSFI, Q-6, A-6.
37 Interim Final Rule, 31 C.F.R. Part 30, §§ 30.3 Q-3, 30.4 Q-4, and 30.5 Q-5; Notice 2008-PSSFI, Q-5, A-5.
38 26 C.F.R. § 1.280G-1; Notice 2008-PSSFI, Q-9(a).
39 Notice 2008-PSSFI, Q-9, A-9(a).
40 Interim Final Rule, 31 C.F.R. Part 30, § 30.9 Q-9(b) and (c); Notice 2008-PSSFI, Q-9, A-9(b) and (c).
41 Section 111(b)(2) of EESA.
42 Interim Final Rule, 31 C.F.R. Part 30, § 30.10 Q-10; Notice 2008-PSSFI, Q-10, A-10.
43 Interim Final Rule, 31 C.F.R. Part 30, § 30.10 Q-10; Notice 2008-PSSFI, Q-11, A-11.
45 This may be because the direct purchases do not carry with them a "meaningful equity or debt position." Section 113(d)(3)(A) permits the Secretary to establish de minimis exceptions to the requirements that the Treasury obtain warrants or debt instruments in connection with purchases of troubled assets, based on the size of cumulative transactions of troubled assets from any one financial institution for the duration of the program. The de minimis exception is limited to $100 million. If the de minimis exception applied, then the Treasury would not acquire any debt or equity position, and therefore, the more stringent standards of section 111(b) would not kick in.
49 Id., at Q-5, A-5.


text:
Nursing clinics of North America, v. 42, no. 1.
The series Nursing clinics of North America, v. 42, no. 1. represents a set of related resources, especially of a specified kind, found in Waubonsee Community College.
The Resource Nursing clinics of North America, v. 42, no. 1.
1 Items in the Series Nursing clinics of North America, v. 42, no. 1.
Context of Nursing clinics of North America, v. 42, no. 1.
Data Citation of the Series Nursing clinics of North America, v. 42, no. 1.

matches: v. v. v. v. v. v.