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Enron Mail |
Mark:
Attached please find the other e-mail summarizing the pending jurisdictional matters. Please note that Justin and I have determined that because Enron could be exposed to criminal liability in the Netherlands, we will exclude residents notwithstanding low risk of prosecution. We are awaiting advise re rather the same state of affairs exists in Italy - low probability of prosecution but some risk of criminal liability. Leslie ----- Forwarded by Leslie Hansen/HOU/ECT on 08/28/2000 01:43 PM ----- Leslie Hansen 08/25/2000 09:03 AM To: "Murton, Rachel" <rachel.murton@linklaters.com<@ENRON cc: Subject: Re: Gaming advice in the various EU jurisdictions Rachel: Thank you so much for the feedback. I will follow up later this morning to address those questions that have yet to be answered. With regard to a summary of your Olympic research in other jurisdictions, I would very much appreciate a summary. Thanks, Leslie "Murton, Rachel" <rachel.murton@linklaters.com< 08/25/2000 06:17 AM To: "'leslie.hansen@enron.com'" <leslie.hansen@enron.com< cc: "Didizian, Marly" <marly.didizian@linklaters.com<, "'justin.boyd@enron.com'" <justin.boyd@enron.com< Subject: Gaming advice in the various EU jurisdictions Thank you for your e-mails. I set out below the advice we have received from the various jurisdictions. 1. Countries that can be added to the approved list: We have now received the advice from Portugal, and as with the Euro 2000 game, the High Five Flag Game does not violate Portugese law, because participants do not have to pay to enter and because it is run outside Portugal - so you can add Portugal to the list of approved jurisdictions. Finland can now also be added to the approved list. The game would not be considered a lottery, as the players would not pay to enter. It should not be considered a restricted marketing measure providing there is no obligation to purchase goods (which I understand is the situation). Tax issues were also initially a concern i.e. it was thought that Enron might be liable to pay tax if it awarded a prize to a Finnish citizen. However, after discussions with the relevant tax authorities, this tax issue seems to have fallen away - because Enron, as a foreign organiser would not have any liabilites towards the Finnish tax office. [If a Finnish citizen won the prize, they themselves might have to pay tax on it - but I assume that this is not a concern of Enron, since they themselves would not have liability towards the Finnish tax office]. 2. Countries that could possibly be added to the approved list, provided certain facts are confirmed (with either Enron or the regulatory authorites),and/or further information is provided. As with Euro 2000 Poland is also looking likely - the Polish lawyers require me to confirm that Enron's customers are permitted to use Enron's website for online trading even if they have not purchased anything from Enron in the past and do not intend to do so in the future. It is my understanding, that this is the case - so assuming this is correct, Poland could be added to the approved list. Belgium - it is unclear under Belgium law whether the game is a Games of Chance, a Lottery, or a Contest. They need to forward a demo to the regulatory authorities. I have not yet checked whether the demo sent yesterday is complete enough (our web access was very slow thsi morning) - but, as suggested in your e-mail, I will contact Dave Samuels if I need a substantially more complete demo. Italy - Approval is needed in Italy if the game is an advertising contest addressed to Italian residents. The scheme would be classified as an advertising contest - the key is whether it is addressed to Italian residents. Our Italian lawyers would like to know how many users there will be in Italy, and would like us to confirm that the site will be in English and from a server located in the UK. In order to obtain approval, the Italian lawyers need to know whether Enron has a subsidiary in Italy - if it does, the application needs to be made on behalf of this company, - if it doesn't have an Italian subsidiary then they cannot actually apply for approval of the scheme. An integral feature of being an advertising contest is that a prize is awarded, so if Italian participants are excluded from being awarded a prize, the game won't be an advertising contest addressed to Italian residents. Sweden - The game is a lottery under Swedish law and therefore requires approval (which there is virtually no chance of Enron obtaining because it is not a charitable organisation) if it is addressed to the Swedish public (as a general rule more than 250 people). Our Swedish lawyers therefore need to know how many participants there are in Sweden - if it is less than 250, then there seems to be a good chance that the game can go ahead - but I will confirm this with them. Norway. There are four issues affecting the game in Norway - these are whether the game is a lottery, whether the game is a money game, whether the game promotes a business, and tax issues. After informal talks with the relevant ministries, th first two issues have fallen away, and are now no longer a problem. The Norwegian lawyers had some concerns as to whether the purpose of the scheme was to promote Enron - but I believe that, if I can confirm to them that customers are permitted to use Enron's website for online trading even if they have not purchased anything from Enron in the past and do not intend to so in the future - i.e. that the game is a "gimmick" and not a promotional tool (as for Poland) this will drop away. The tax issues are similar to those initially expressed by the Finnish lawyers - and may fall away after consultation with the Norwegian authorites. 3. Jurisdictions where there is a technical risk of violating local laws but a low risk of enforcement Netherlands - technically the game violates the Dutch Games of Chance Act (DGCA). However, it is not clear that the DGCA applies to internet games, and our Dutch colleagues are not aware of any instances where internet games have been prosecuted under the Act. They beleive that even if the Dutch authorites were alerted to the game, games offered for a limited period of time for moderate prozes would not be high on teh list of the dutch authorities priorites! There is also the issue that Dutch courts probably won't consider themselves to have jurisdiction because, for example, the prizes are expressed in GBP, the game is run from a UK server, the language is English, and the game does not violate laws in jurisdiction it is run from, although no guarantee of this can obviously be given. 4. Miscellaneous We await advice from Spain. I have received, but not yet reviewed, the advice from France (but from a brief glance, it does not look favouarble regarding allowing French citizens to participate). I also have advice from the various jurisdictions relating to whether Enron employees themselves can participate (this looks favourable - obviously as long as the game is conducted fairly). I will review the specifics of this advice, and forward it to you, along with the advice we have on disclaimers. I should be able to do this this afternoon/evening (UK time). I have advice from most of the jursidictions on Olympic legislation. Would you like a summary of this advice for future reference? - it makes interesting, if largely depressing, reading! Rachel ____________________________________________________________ This message is confidential. It may also be privileged or otherwise protected by work product immunity or other legal rules. If you have received it by mistake please let us know by reply and then delete it from your system; you should not copy the message or disclose its contents to anyone. ____________________________________________________________
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