Labour Law in Canada - Corporate INTLreservation, e-chaupal, e-Seva, e-tax return etc.). Further, re...

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September 2011 Corporate INTL 15

Sector panel

14 Corporate INTL September 2011

The information technology sector in India has witnessed phe-nomenal growth in recent years. According to the World Bank, Indian IT sector has contributed 1.4% towards India’s GDP of the last financial year. Household consumer across income segments and geographies are being exposed to technology through mobile penetration and B2C applications (e.g. railway reservation, e-chaupal, e-Seva, e-tax return etc.). Further, re-cently introduced amendments in the Information Technology Act, 2000 (“Act”) are stepping stones to a robust IT legislation.

Asim Abbas, partner at Khaitan & Co, noted that some of the key amend-ments to the legislation are incorporated in the rules framed under section 43A and 79(2) of the Act. He explained that the Information Technology (reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“Security Rules”), framed under section 43A of the Act define “personal information”, “sensitive personal data or information” and “reasonable security practices and procedures”.

“As per the Security Rules,” said Mr Abbas, “the corporate who coll ects, re-ceives or stores ‘personal information’ or ‘sensitive personal data or informa-tion’ shall provide privacy policy for handling or dealing with such informa-tion and shall comply with reasonable security practices and procedures as provided therein. The Security Rules for sensitive personal data or informa-tion specify (i) the process of its collection and the disclosure of purpose; (ii) duration for which it can be retained; (iii) manner of disclosure of such information to third party; and (iv) level of protection to such information.”

However, in view of recent clarification, issued by the Ministry of Communica-tion and Information Technology, provisions relating to collection and disclosure of information under the Security Rules will not apply to any body corporate including BPO, if they are collecting sensitive personal data under contractual obligation with any legal entity located within or outside India. It further clarifies that provisions relating to collection and disclosure will apply to body corporate if it is providing services directly to data subjects under a contract.

Mr Abbas added that the IT companies collecting such information have to put in place the systems and processes to comply with the requirements of the Security Rules.

He further noted that the Information Technology (Intermediaries Guide-lines) Rules, 2011 (“IR”) under section 79(2) of the Act, impose obligations on intermediaries to publish privacy policy or user agreement informing the users not to host, display, upload, modify, publish, and transmit certain categories of information as provided in the IR.

“It mitigates risks and liability of intermediaries for any third party infor-mation or communication link made available by it. However, this will impact intermediaries as the added burden of fulfilling these provisions would add to their costs of carrying out their business,” commented Mr Abbas.

As he explained, the IT (Guidelines for Cyber Café) Rules (“CCR”) are issued under section 79(2) of the IT Act. The CCR requires registration by all cyber cafes with the registration agency notified by the government. There are additional responsibilities on the cyber cafes to establish the identity of the user and maintain log registers to record the same. Cyber cafes may also be inspected by an officer to check compliance with the CCR.

“It appears that such stringent CCR may hamper the growth of cyber cafes and as a result penetration of computer resource to public in general,” said Mr Abbas. “However, it has to be noted that cyber cafes have been mostly found to have been misused by terrorists, minors, hackers etc. for various purposes and therefore check on them was so desperately required to contain its misuse.”

The changing face of Indian IT industry

The legislative changes in the IT Act are expected to affect multinational companies outsourcing business to India or operating in India. It is yet to be seen whether amendments to the Act and new rules framed thereunder will be considered to provide adequate protection within the meaning of Direc-tive 95/46/EC to personal data transferred in India.

“This outcome will definitely affect the Indian outsourcing industry and may prove to be beneficial for free flow of personal data to India in case they are recognised by The European Commission,” pointed out Mr Abbas. “Further, multinational corporations operating in India will have to comply with the requirements of the Security Rules.”

The new rules allow officials and private citizens to demand that internet sites and service providers remove content they consider objectionable on the basis of a long list of criteria. The list of objection-able content includes anything that “threatens the unity, integrity, de-fense, security or sovereignty of India, friendly relations with foreign states or public order.” As this description is very vague, many think it undermines the constitutionality of the new rules, and could be seen as a threat to the freedom of speech in India.

Mr Abbas noted that the fundamental right of freedom of speech and expression guaranteed by The Constitution of India is subject to reasonable restrictions. These reasonable restrictions are interest of sovereignty and integrity of India, security of the state, friendly rela-tions with foreign states, public order, decency, morality or in relation to contempt of court, defamation or incitement to an offence.

Consequently, the provision to remove objectionable content from web-sites under the IR is by large in consonance with the reasonable restrictions as stated above. However, Mr Abbas emphasised that some criteria speci-fied in IR like “invasion of another’s privacy”, “relating to or encouraging money laundering”, or “communicates any information which is grossly of-fensive or menacing in nature” are vague and with no parameters defined.

“The IR does not specify any authority who would determine whether the content complained of is objectionable in the absence of prescribed standards,” said Mr Abbas.

Since these rules are new it is yet to be seen as to how the judiciary would interpret them in light of the constitution and reasonable restrictions contained therein.

Mr Abbas commented: “With respect to the criteria specified in IR, which are not covered in Article 19(2) of the Constitution, there could be an arguable case that the new rules may infringe the right to freedom of speech and expression.”

“Multinational corporations operating in India will have to comply with the requirements of the Security Rules.”

Ten years ago, Michael G. Sherrard and Erin R. Kuzz each left established law firms to create a new and forward-thinking, management-side, employment and labour law firm. With an entrepreneurial spirit and a belief that the tradi-tional law firm approach to client service must be improved, Mr. Sherrard and Mr. Kuzz saw the opportunity to create a unique service provider.

Their vision has been realised in the form of Sherrard Kuzz LLP, which has grown dramatically to become one of Canada’s most sought-after boutique employment and labour law firms. Located in Toronto, the firm represents every size and type of employer across the public and private sectors, nationally and internationally.

The firm’s members spend considerable time – not billed – learning about each client’s priorities, objectives, industry, history and competitors. This detailed business knowledge enables firm members to advise clients proactively and strategically. The firm is also accessible – its live 24-hour telephone number is answered by a Sherrard Kuzz lawyer, 24 hours a day, seven days a week.

According to Michael G. Sherrard, partner with the firm, a hallmark of the practice at Sherrard Kuzz is providing strategic employment and labour law advice to international employers commencing operations in Canada or carry-ing on business in multiple Canadian jurisdictions.

Mr. Sherrard noted: “This is significant because, in Canada, employment and labour law are primarily regulated at the provincial level. Canada is comprised of ten provinces and three territories, each of which is responsible for its own employment and labour legislation. The Government of Canada is also responsible for passing laws relating to employment and labour in respect of particular industries regulated at the national level – including telecom, inter-provincial transport, air travel and rail.”

Foreign businesses planning to develop operations in Canada must there-fore expect employment and labour law in Canada to not only differ from

Michael G. Sherrard, PartnerSherrard Kuzz LLP+1 416.603.0700 / +1 416.420.0738 (24-hour)[email protected]

Labour Law in Canadatheir home country, but also among the various Canadian jurisdictions, adding an additional level of complexity.

Mr. Sherrard explained that a foreign organisation seeking to carry on business within one or more Canadian jurisdiction must therefore have a legal team that is highly knowledgeable about the wide range of provin-cial and Canadian laws that apply. For a large and growing number of foreign organisations, that team is Sherrard Kuzz LLP.

“And yet,” said Mr. Sherrard, “despite what may appear to be a regulatory quagmire, Canada remains a very attractive place to do busi-ness. According to a detailed 10-month KMPG study of international business costs in 11 countries in North America, Europe and Asia-Pacific, Canada’s business costs are the second-lowest recorded in the study, and five per cent lower than in the USA.”

He concluded: “Canada also leads all G7 countries in ease of doing business, according to the 2009 IMD World Competitiveness Yearbook; meanwhile, the Economic Intelligence Unit forecasts Canada as the #1 place to do business in the G7 for the next five years.”

The KnowHow IP Group is an alliance of several Chinese firms including CN KnowHow Intellectual Property Agent Limited (a patent and trademark agency), a plant varieties agency, a Chinese law firm and Eagle IP Limited. The Group has expertise in a wide range of IP matters and maintains offices in Beijing and Hong Kong, as well as a representative office in the US.

The Group’s Hong Kong office has four bilingual US registered patent agents in-house with knowledge of Chinese patent law. Shunxing Xie, president of CN KnowHow Intellectual Property Agent Limited, noted: “We are able to handle complicated Chinese patent cases with Western-type advocacy skills in the Chinese social and legal context. There are native Korean and Japanese speakers working within the group too. Such a combination enables us to provide one-stop services to clients within the whole of Asia.”

As regards the group’s recent case studies, Dr. Jacqueline Lui , Manag-ing Director of Eagle IP limited, added that since the Chinese legal system and the Chinese IP environment is quite different from that of Western jurisdictions, Western clients are beginning to recognise that they need a Chinese element in their IP strategy from the very beginning – not as an afterthought to their original IP focus.

In particular, patent and trademark applications that are merely translated and filed in China after filing in the original home country often run into problems due to differences in the IP laws and practices between East and West. Therefore, more and more Western clients are now asking Eagle IP, the Hong Kong partner of the Group, to do original drafting and strategic management of their IP portfolio from the very beginning stage. The firm works closely with in-

Shunxing Xie, PresidentJacqueline Lui, PartnerKnowHow IP [email protected]

New trends & developments– China IP

ventors, designers and in-house counsels to formulate suitable strategies. “For example,” said Dr. Lui, “a California-based multinational

pharmaceutical company started by entrusted us to manage their entire Chinese patent portfolio with more than 30 applications. Now, they are running their new inventions by us before they file their priority US ap-plication – to make sure that that the priority application also complies with Chinese patent law.”

Mr. Xie added: “China realises the importance of IP and has been encouraging indigenous invention and technology improvement via different means. At present, all levels of the Chinese government, from local to provincial to central levels, are encouraging IP procurement by subsidising the costs involved. Obviously, this move has facilitated do-mestic IP development, and China filed the largest number of patents and trademarks in the world in 2010.

“With such national policies, foreign investors are reminded that they need to secure their IP appropriately in the face of ever-increasing com-petition – both in manufacturing and in market share. Bio and medical enterprises are comparatively more conscious about their IP than other sectors. They will start their IP protection from the very beginning of R&D, but are often hampered by limited financial resources. We are able to assist such clients in maximising protection at reasonable costs.”

Asim Abbas - PartnerKhaitan & Co

801 Ashoka Estate24 Barakhamba RoadNew Delhi 110 001, India

T: +91 11 4151 5454F: +91 11 4151 5318E: [email protected]

Bangalore | Kolkata | Mumbai | New Delhi

According to statistics published in 2010 by the Japan Patent Office (herein-

after, “JPO”), the average win rate in IP High Court decisions in lawsuits for

revocation of the JPO appeal board’s final rejections are 13% in 2007, 18% in

2008, and 33% in 2009. Thus, the win rate is becoming significantly higher. It

seems that the IP High Court is trying to modify the examination practice of

the JPO so as to match it to the international inventive step standard.

One IP High Court case in which the JPO lost is Heisei 20 (Gyo-ke) 10096. Tadashige Itoh, president at ITOH International Patent Office, explained that in this case a general criterion was given by IP High Court on inventive step. The inventive step requirement defined by Article 29, paragraph 2 of the Japanese Patent Law, is deter-mined by considering whether or not a person skilled in the art could easily have reached the technical features (features different from the cited main prior art) of the claimed invention, starting from the disclosure in the cited main prior art.

“Because the technical features of the claimed invention shall solve the problem which the invention aims to solve, it is necessary to precisely grasp the technical features of the claimed invention and the problem which the invention aims to solve,” commented Mr Itoh.

He also noted that during the process of inventive step judgment, ex post facto anal-ysis or illogical thought must be excluded. To that end, it is necessary to pay attention not to allow “means for solution” or “result of solution” to be unconsciously included in the process when grasping the problem which the invention aims to solve.

Tadashige ItohPresident, Patent AttorneyITOH International Patent Office +81 (0)3 5424 [email protected]

Japan pays increased attention to the inventive step judgment

Further, in order to properly determine that the claimed invention could have been easily invented, it is not sufficient to only show that it can be guessed or inferred that a person skilled in the art could have made an at-tempt to reach the technical features of the claimed invention. Instead, it is necessary to show that a suggestion or motivation exists (in the main prior art), based on which a person skilled in the art could have actually made an attempt to reach the technical features of the claimed invention.

“We can utilise this criterion in our argument against a JPO exam-iner’s inventive step rejection,” said Mr Itoh.

ITOH International Patent Office, where Mr. Tad Itoh Jr. has been practicing intellectual property law as president, was established in December 1967. ITOH International is capable of handling all techni-cal fields including the fields of automatic control systems, telecom-munications, semiconductors, information processing, computers, materials, chemistry, and biotechnology.

Deal activity in Slovakia over the course of this year could not be de-scribed as ‘dynamic’ or ‘robust’. For many businesses the main focus was not on acquisitions but on increasing portfolio of companies in order to secure growth and elimination of competitors. However, planned priva-tisation of certain sectors of Slovakia’s economy brings hopes for revived transactions activity. The government is also committed to ensuring business growth in less developed regions of the country.

The planned privatisation includes state railway cargo company and 30-year rental of state owned airport in the capital city. In addition, a privatization of state owned heating companies is also expected. Commenting on the issue, Branislav Laurinc, partner at ECOVIS LA Partners Tax, said: “Privatisation is needed to get financial injection to the Slovak state budget. It means that at least in this area we could expect an increase in M&A activity.”

As Mr Laurinc noted, the main sectors of the Slovak economy are auto-motive industry (three main automobile companies), steel production and production of electronics. Entities in these sectors have many companies connected to them as suppliers.

However, during the global economic crisis the demand for products from the automotive industry, as well as steel and electronic products has decreased significantly. It adversely affected Slovakia with its production- and export-oriented economy. Nevertheless, after the recession, when the demand for such products increased again, the economy started to grow steadily. This improved the acquisitions market to a visible extent.

According to Mr Laurinc, currently also the energy sector as well as ag-riculture and meat production are interesting areas for acquisitions in Slo-vakia. “We have also noticed an increased interest in environmental sector compared to the traditional sectors. On the other hand, the interests in acquisitions of service companies have been decreased,” said Mr Laurinc.

As a result of the predicted start-up of the business growth, acquirers from outside Slovakia have shown a preliminary interest in domestic businesses, which is expected to result in future acquisitions. Most of the acquirers who have already started transactions were groups which are already present in Slovakia and their aim is to strengthen their growth or acquire their competitors, noted Mr Laurinc. The majority of investors was from Western Europe, particularly France, Denmark, Italy and Germany.

The Slovak government is currently trying to attract even more investors into the country. Investors, both domestic and foreign, can receive state aid if they decide to invest in Slovakia’s less developed regions. Mr Laurinc explained that such aid could consist of, for instance, tax holiday or direct contributions to the investor for creating new employment positions.

In the opinion of Mr Laurinc, the future of M&A activity in Slovakia will depend very much on the next development of the worldwide financial crisis which we are facing right now and a potential new crisis.

He said: “Some time ago there were expectations for a growth in the business environment and, as a result, also in the M&A area. A new crisis could stop it altogether. However, on the other hand, the privatisation process may create op-portunities which can significantly improve deal activity in Slovakia.”

Hopes for increased M&A activity in the Slovak Republic

Branislav LaurincPartner ECOVIS LA Partners Tax+421 (0)2 33554160 [email protected] www.ecovis-lap.sk

Lubis Ganie Surowidjojo (“LGS”) is engaged in both commercial transactions and commercial litigation, including antitrust, arbitration and other alterna-tive dispute resolution (“ADR”). LGS is one of the largest, if not the largest, law firm in Indonesia. In addition to having one of the largest commercial transac-tion practices in the country, among Indonesia’s main law firms LGS has the largest litigation practice. The firm has handled over 300 litigation cases over the last five years of its 25-year litigation practice history.

Dr. Mohamed Idwan Ganie explained that in civil litigation (except for antitrust, trademark, labour, and certain other disputes) a mandatory mediation stage is imposed prior to the start of a hearing on the merits.

He said that the mandatory mediation stage has in many cases resulted in amicable settlements. Statistics are not available and consequently it is not possible to determine as to whether this is having a significant impact on the level of litigation generally. In most cases efforts to come to an amicable settlement will precede any submission of formal litigation to the courts. Consequently, formal complaints will in most cases only be submitted where amicable out-of-court settlement efforts have failed.

“However, in the mandatory mediation stage (after a formal court complaint has been submitted) professional/licensed mediators under the supervision of the court will conduct the mediation process, which in and of itself reopens the possibility that an amicable settlement can be reached even though previous attempts, prior to the submission of a formal complaint, have failed,” he added.

Dr Ganie also noted that when it comes to mediation the client needs to be mindful of their counsel’s experience in the litigation sector.

Dr Ganie said: “The client needs to have a realistic perception of their legal position and how Indonesian courts would decide the relevant legal issues, which can be best provided by an experienced litigation firm that also is experienced in commercial transactions.”

Indeed, the client needs a law firm that applies the highest ethical and professional standards; and needs to have a realistic estimate of the legal fees that will be incurred in the process.

Dr Ganie added: “Foreign clients, in particular, need to have a complete picture of the Indonesian litigation process, time periods, milestones and remedies avail-able that might differ from the laws and procedures in their home jurisdiction.”

Furthermore, the client needs to ensure that they will be involved, and obtain reports, on all stages and developments of the proceedings in order to issue instructions as and when needed.

“The traditional approach adopted by Indonesian litigation firms was, and more often than not still is, that once the lawyer has been instructed, reports are very rare and the lawyer will act as he deems necessary based on his own discretion, and might as a result commit clients to legal liabili-ties without further, or confirming, instructions,” concluded Dr Ganie.

Dr. Mohamed Idwan GanieManaging PartnerLubis Ganie SurowidjojoTel: +62 21 831 5005, 831 5025Fax: +62 21 831 [email protected]

LGS on the forefront of dispute resolution in Indonesia

The primary source of Real Estate Law in Turkey is the Turkish Civil Code (the

‘Civil Code’), Chapter IV of which governs the issues surrounding rights and

obligations in relation to property. The Civil Code describes and defines pro-

prietorship rights, incorporeal rights, pledges on immovable property, while

the secondary legislation governing real estate transactions are the Zoning

Law, the Land Registry Law and the Cadastre Law.

In transactions involving state-owned property, the Municipality Law and the Public Tender Law would also apply, where appropriate. Further, the new Turkish Code of Obligations, yet to enter into force in July 2012, will be the key legislation for lease of immovable property.

Kolcuoğlu Demirkan is a full service Istanbul-based law firm offering a wide range of legal services to domestic and international companies, institutions and individuals in various sectors. According to Serhan Koçaklı, partner, “while structuring a real estate related project in Turkey, one should always consider the fact that although the freedom of contract principle is well-respected under Turkish Law, the limitations of the above-mentioned laws may cause serious validity and enforceability problems for contracts.”

Kolcuoğlu’s lawyers are currently working on the acquisition of a landmark property in Istanbul, from a bankrupt company. This transaction not only includes significant real estate law practice with complex zoning law and tenant law aspects, it also involves Execution and Bankruptcy Law expertise, as the owner of the land is a bankrupt capital company.

When asked about some of the complexities associated with real estate law in cross-border issues, Mr. Koçaklı explained that the most important legal challenge in cross-border issues is that foreign companies cannot directly acquire property in

Serhan Koçaklı, PartnerKolcuoğlu Demirkan+90 212 296 60 00 [email protected] www.kolcuoglu.av.tr

Turkey: Real estate sector focus Turkey. For this reason, a Turkish subsidiary must be set up.He said: “Also, as in most jurisdictions, proprietorship rights on a real

property are considered as a matter of public order in Turkey. According-ly, any dispute in relation to a real property in Turkey must be resolved exclusively before the competent Turkish Court. A dispute regarding a real property cannot be resolved through arbitration.”

He concluded: “The way we see it, although the real estate sector in Turkey has not been hit hard by the global economic crisis, it was rather stalled during the crisis. However, it picked up pace quite quickly and is currently developing well.”

“As regards the coming months, the most commonly seen projects in major cities are likely to be hotel and private hospital developments. It seems that Istanbul in particular will be very popular for hotel inves-tors. There is still, however, an over-supply in residential projects and a continued lack of A+ office spaces and trade centres. Meanwhile, the most significant change affecting the industry will be the entry into force of the new Turkish Code of Obligations in July 2012 – since it brings new rights and obligations to the parties of a lease agreement.”

Sector panel


Sector panel


Jose Luis Rojas is a public accountant, currently acting as the managing partner of the Salles Sainz – Grant Thorn-ton, S. C. office in Aguascalientes and Leon, where he coordinates all market efforts for five states within Central Mexico. He is also the partner in charge for Business Risk Services for Grant Thornton Mexico.

With 23 years’ experience in control areas such as Internal and External Audit, Mr. Luis Rojas was part of a Deloitte strategic development pro-gram in Phoenix, AZ as well as senior manager to the global audit director for Deloitte in New York City.

In addition, he is a specialist in prevention, detection and reporting of money laundering and fraud, external and internal audit, risk management, and design and implementation of internal controls. He was also the subject matter expert for the Sarbanes Oxley Law implementation project in Deloitte Latin America, and he participated in multiple SOX readiness and attestation projects.

From 1998 to 2008, he was leading partner of the Money Laundering Preven-tion practice for Deloitte Mexico and currently performs this function for Salles, Sainz – Grant Thornton, S. C. As regards his sector experience, he has participated in key projects in the financial services industry, such as design and implementa-tion of transactional matrix risk for customers in the financial sector; design and implementation of a money laundering and terrorism financing risk management system for 12 companies in Colombia; and design and delivery of a learning pro-gram for money laundering prevention for savings funds societies in Mexico.

Mr. Luis Rojas described Salles, Sainz – Grant Thornton, S.C.’s current client base for forensic accounting services as “international companies with an interest in monitoring their overseas operations and financial sector institutions.”

He added: “Our firm is one of the top five accounting companies, and has the distinction of being the best auditor for the past two years in Europe. Also, our professionals are bilingual and offer a high level of international expertise.”

As regards recent case studies, Mr. Luis Rojas said: “We are currently working with a public company that is implementing its antifraud pro-grams and controls according to the SOX Act, where we have discovered several small frauds due to lack of control, excessive confidence in em-ployees and very little enforcement of the business policies.”

Looking at the industry as a whole, he said: “The current economic situation worldwide and nationwide has taken a toll in that the values of the society are put to the test and, unfortunately, fraud incidences, robbery, theft and other

Mexico – Forensic Accounting Experts

crimes are increasing. Companies and their shareholders are very wor-ried about these situations and so we have seen an increase in the need for forensic services, training on the matter, and design and implementa-tion of antifraud programs and controls.

“Corporate Governance standards in Mexico, meanwhile, are based on the Best Governance Practices Code issued by the Business Coordination Council. However, this code is only a recommendation and is aspirational – given that in reality it is policy without teeth. Notwithstanding that, based on a corporate governance survey performed by Grant Thornton Mexico a few months ago, we can see at least 64% of family-owned businesses mov-ing towards institutionalisation – thereby, adopting the code.”

Mr. Luis Rojas also noted that the rise of new technologies has led to an increase in document fraud, which creates the need for forensic accountants to at least have a working knowledge of ID theft, forgery and voice recognition patterns, among other areas.

He concluded: “As far as 2012 is concerned, fraud will continue to increase and companies will continue to improve their controls, some by necessity, others by requirement of the markets where they compete – stock market regulations, banking requirements, applicable laws, etc.”

Mr. Luis Rojas is currently a member of the Association of Anti-Money Laundering Certified Specialists and of the Association of Cer-tified Fraud Examiners. He has served many clients such as: Grupo Bimbo, Kellogg Latinoamerica, Bansefi, Grupo Bachoco, Pilgrim’s Pride and AVON, among other prestigious brands.

José Luis Rojas, Public AccountantSalles, Sainz – Grant Thornton, S.C.+52 449 996 62 [email protected]

Vondst Advocaten is a boutique law firm specialising in contentious IP work. The firm covers a full range of IP laws, ranging from patents to semiconductor rights and everything in between – including trademarks, designs and copyrights, etc.

Tjeerd Overdijk, partner, noted: “We also represent overseas companies in conflict situations whether in legal proceedings or other contentious situ-ations. Besides assisting our clients enforcing their IP rights and resisting enforcement actions, we have specific expertise as regards certain industries, including the IT, pharmaceutical and horticultural industries.”

If a foreign business is contemplating the acquisition of assets or a business in the Netherlands which involves a transfer of IP rights, Vondst Advocaten can provide advice on the formalities that need to be complied with in order to accomplish a full and valid transfer of these rights (IP Due Diligence).

Mr. Overdijk went on to explain that an important part in Vondst’s practice is its work for businesses specialised in breeding or exploiting plant material in the horticultural, fruit growing and seed industries.

“Vondst advises businesses in these sectors about the possibilities available to pro-tect the products they have developed and their breeding and horticultural methods, and about licensing and other types of exploitation agreements,” he said.

Currently, Vondst Advocaten works for a wide range of clients, ranging from large automotive and pharmaceutical companies to small innovative healthcare and seed companies. Most recently, the firm has been involved in a number of high profile pharmaceutical and medical device cross-border patent litigations.

As regards the industry in general, Mr. Overdijk noted: “Over the last 10 to 15 years there has been done a lot of harmonisation work to bring laws in line with EU stan-dards. At the same time, our IP systems bear remnants of the old national or regional

Tjeerd Overdijk, PartnerVondst Advocaten+31 (0)20 504 20 [email protected]

IP advisers in the Netherlandslaws which include some peculiarities that can be considered specific for our jurisdiction. For example, we have been used to grant a fairly broad protec-tion to trademarks, and we still extend trademark protection against certain use of trademarks other than for distinguishing goods or services – if such use is damaging for the reputation of a trade mark, even if the mark is not well-known.

“When it comes to copyright protection we have our own set of limita-tions and exceptions, which bear the marks of local culture with regard to what we in the Netherlands view as reasonable safeguards of the free flow of information. And obviously there are certain areas of IP law, such as the protection of trade names, which are not yet harmonised with laws throughout the UK – and which may set certain unexpected standards when operating a foreign business in the Netherlands.

“This is why it will always be helpful to seek local IP advice when doing business in the Netherlands.”

Arbitration is a legal technique which allows for the resolution of disputes outside courts. In general, arbitration is related to investment - indeed when investment is rising, so is arbitration. As Ayman Abdallah, managing partner at AM Law Firm, pointed out, in Egypt arbitration is important and effective since the promulgation of Arbitration Law No. 27 of the year 1994. However, since then different types of arbitration have evolved in the country.

Arbitration is often preferred to court litigation but also to other ADR methods like mediation. It is due to the fact arbitration is not only faster and discreet but it is bid-ing too. Besides, a party can choose its arbitrators in case a dispute arises.

Recently, a new kind of arbitration has appeared namely online arbitration. It means that companies do not need to go to an arbitration institution as they can submit the dispute to arbitrators online. “This new kind of arbitration

Ayman AbdallahManaging Partner AM Law FirmMobile: [email protected] www.amlawfirm-egypt.com

Availability of various forms of arbitration in Egypt

shall be very useful nowadays as businesses all over the world use now the internet for work,” commented Mr Abdallah.

Although arbitration has many advantages over litigation and other methods of ADR, it is also very expensive. Consequently it is suited, in most cases, for big companies rather than small ones. However, ad hoc arbitration is available for small companies or projects. In case of ad hoc arbitration companies agree on one arbitrator to settle their dispute.

Ad hoc arbitration is available for small companies or projects, where parties agree on one arbitrator to settle their dispute.

The flexibility of arbitration makes it a commonly used technique for solv-ing disputes. Therefore, Mr Abdallah expects that for companies arbitration will raise because the procedure is faster than going to court.

He noted: “It seems that disputes handled under this method are more and more increasing, despite of the economic crisis. It is because various companies wish secret and quick resolution of disputes. Arbitration has risen especially since the recession.”

According to Mr Abdallah, with regard to arbitration between two countries, in general, the biggest and more developed one wins the case because at the beginning, when the rules were written, they were favouring powerful countries.

He said: “As we say in our country, ‘arbitration is like a car, it is fast but not safe’. Countries are going to limit arbitration, especially if the country is a party in a dispute. Actually some countries issued a resolution forbidding arbitration in the contract when the government is a party.”

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Sector panel


Australia is in the process of developing one of the world’s most restric-tive systems of internet censorship despite the landmark ruling in the recent iiNet case. According to Jeremy Szwider, legal expert and Manag-ing Director of Australian firm Bespoke Law, the iiNet decision will inevitably have ramifications for hosting providers, content providers, online portals and of course, internet service providers.

iiNet is Australia’s second largest ISP and was victorious against an alliance of film and television studios. In this case it was claimed that iiNet, as an ISP, allegedly allowed its customers to download film, TV and music illegally over their service. It was ruled that, as an ISP, iiNet was not responsible for what their users do with the services they provide them.

“The iiNet case is currently on appeal to the High Court of Australia and there is some support in the Australian market and industry bodies for ISP’s to block certain content and to record the usage of internet users on a routine basis,” explained Mr Szwider.

Bespoke Law is a virtual law firm providing a platform for a new third tier of the legal profession. Without real overheads, it operates as an “outsourced extension” to in-house legal departments and business units. It does this via an Outsourced In-House Counsel™ service and alternative fee arrangements. With its virtual platform Bespoke Law significantly reduces clients’ legal spend by approximately 30-50%. It also operates in a paperless environment.

Mr Szwider further explained the reasons behind Bespoke Law’s expan-sion on to this new platform: “With the luxuries of technology and online applications, Bespoke Law fosters communication channels with clients that are superior to traditional law firms. In addition to emails, mobile devices and ipads, clients communicate with lawyers at Bespoke Law via Skype, twitter and instant messenger services. The boardroom concept is easily re-created with a mouse click.”

Bespoke Law advises a range of clients including web-based businesses, entrepreneurs, telecommunications providers, technology companies and start-ups in relation to information technology, e-business, internet and intellectual property law. The firm is experienced in assisting with com-munications and IT outsourcing arrangements including advising on the full range of outsourcing opportunities.

Following his General Counsel role at Carphone Warehouse (includ-ing an active role in its outsourcing, technology and ISP activities), Mr Szwider has continued his relationship with this UK FTSE 100 telco retailer and has acted for the Best Buy/Carphone Warehouse Group in relation to a master services and support arrangement with Research In Motion (Blackberry). Recently the firm assisted in the sale of Australian group-buying site Spreets to Yahoo!7 in January 2011 for AUD $40 million, despite the start-up only launching in April 2010.

Jeremy Szwider, recently received a highly commended award in the Box-Breaker category of the 20111 Annual Lawyer’s Weekly Lawyer Awards. The award recognises innovation in the legal profession and singled out Szwider’s new business model as part of the fully serviced law firm, Bespoke Law. Despite this recognition Mr Szwider remains grounded and dedicated to maximising the efficiency of his firm:

“The biggest challenge facing the practice of outsourcing is keeping up with demand and ensuring that the focus on reducing overheads and promoting efficiency remains paramount,” concluded Mr Szwider.

Jeremy Szwider Managing DirectorBespoke Law +61 (0) 418 988 [email protected]

Outsourcing and IT developments in AustraliaAs cases relating to family issues are often very emotional, practitioners specialising

in this area need compassion and people skills to assist their clients in an adequate manner. Matrimonial or family law in Singapore cover issues relating to marriage, divorce, division of assets, custody of children and access, maintenance and family violence. The most prevalent area of family law work in the country is divorce and issues that have to be resolved by the court following the divorce.

Singapore has a specialist Family Court and an efficient system that stresses timelines with provision of counselling to parties on children’s issues. The Family Court also provides trained counselors/therapists who assist the judges by putting up custody evaluation reports, access reports etc. Courts also work closely with the Ministry of Community Development on contentious custody matters. Pursuant to recent legislative changes, Singapore courts now have the jurisdiction and power to recognise ancillary orders made in other countries and to enforce or supplement these orders.

In recent years, the case load of the Family Court has increased significantly and as a result, the Family Court is dealing with more divorces and issues relat-ing to divorces. Nevertheless, the efficiency and high standards of the system is maintained by the use of modern technology, the competent and highly trained staff and judicial officers. Court papers are filed electronically in court. Addi-tionally, a number of cases are connected to the Family Court via video link by which status conferences and pre-trial conferences are conducted.

Before a person may start legal proceeding for divorce in Singapore, there are certain requirements the person must satisfy. It is essential to first determine whether the Singapore Court has jurisdiction to grant the divorce. The Singa-pore Court is able to grant a divorce, judicial separation or nullify a marriage if one of the parties to the marriage is domiciled in Singapore at the commence-ment of the proceedings, or if one party has habitually resided in Singapore for three years before the start of court proceedings. This requirement applies to Singaporean citizens, permanent residents and foreigners residing in Singapore.

Koh Tien HuaPartner Harry Elias Partnership LLP+65 6361 9895 [email protected]

The importance of Family Courts in Singapore It does not matter that the marriage was solemnised and registered in a country other than Singapore.

When it comes to resolving marital issues in Singapore, litigation and mediation are the most popular methods. Mediation is encouraged especially for issues involving children.

Koh Tien Hua is a partner in the Family and Matrimionial Law De-partment of Harry Elias Partnership LLP and also a partner of the firm’s Sports and Media Practice. He has acted for high net worth individuals, successful entrepreneurs, and wealthy families in numerous matrimonial and family law disputes and has appeared in matrimonial cases from the Singapore Family Court to the Singapore Court of Appeal.

Koh Tien Hua is a fellow of the International Academy of Matrimo-nial Lawyers, which membership is open only to family lawyers with experience in international disputes relating to maintenance, division of assets and children’s issues. He is also a member of the Family Law Committee of the Law Society of Singapore. He is the author of a book on matrimonial and family law entitled “Divorce – Untying the Knot”, a publication by Marshall Cavendish. Tien Hua is also an accredited Singapore Mediation Centre family law mediator involved in the Sin-gapore Mediation Centre’s Family Law Mediation Pilot Project.

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Given that Nigeria is party to TRIPS, Berne, Paris, Rome and the Patent Co-operation Treaty, Nigeria’s intellectual property regime is largely investor and creator friendly.

Founded on English common law, the Trade Marks Act 1965 derives from the English Trade Marks Act, 1938, which means that the framework for geo-graphical indications of origin and well-known marks are largely lacking but the common law action of passing off is preserved.

As Dr. Bankole Sodipo, partner at Chief G.O.Sodipo & Co., noted, Ni-geria has a Copyright Act, 1988 that largely meets with TRIPS’s minimum standards, and a Patents and Designs Act, 1970 that largely conforms to TRIPS minimum standards such as 20 years patent term and product patent protection for pharmaceuticals. Some infringements amount to crimes under a Counterfeit Drugs Act, a Merchandise Marks Act and the Copyright Act.

However, unlike many neighbouring African countries, Nigeria is not party to the regional industrial property treaties either the OAPI (French speaking countries) or ARIPO (English speaking countries). Nigeria is also not party to the Madrid Protocol.

Recently, there have been some significant developments in the IP legisla-tion in Nigeria.

Among other, the Trade Marks Registry has introduced regulations permit-ting the registration of service marks even though the Trade Marks Act has not been amended. Similarly, the Patents Registry has permitted the grant of patents in line with the Patent Cooperation Treaty despite the fact that the Patents and Designs Act has not been amended to permit the application of the treaty in Nigeria.

The success or otherwise of cross-border intellectual property litigation in Nigeria depends on the cooperation between in-house counsel, external counsel, and the ingenuity of all concerned. According to Dr. Sodipo, strategy

is key. Contact in neighbouring countries may be valuable if there is need to fight a counterfeiting ring across Nigerian borders.

“Whilst in-house Counsel may share experience and make strong suggestions, what works in some countries may not always work in Nigeria,” pointed out Dr. Sodipo. “What worked previously may not work now. The law on the books may be slightly different from those on the street, that is, how the law actually works or is applied.”

Dr. Sodipo noted that there is often a choice of the administrative body to use for a particular anti-counterfeiting operation. He said: “In one situation, we advised on the use of the Customs Service with whom our firm had been involved with intensive training whilst the client insisted on the use of the Standards Organisation of Nigeria. Fortunately, client agreed with us and the results were astounding. Strangely, the customs with police powers of arrest and seizure and carrying ammunition, had an edge over the Standards Organisation who do not have police powers. Our firm has the added advantage that we consult for most of the administrative bodies, hence, this relationship often proofs useful in dealing with issues affecting our industry clients.”

In 2011 itself India’s inbound M&A volume surged to $23.4

billion with the United Kingdom emerging as the top acquirer

into India with deals worth $15 billion, much more than

the corresponding period last year, when the year-to-date

inbound deal volume stood at $151 million. The other top

acquirer nations into India, after the UK which was respon-

sible for 64% of inbound M&As, are the United States (17%),

Germany (6%), Japan (4%), and Denmark (3%) (Dealogic).

Whilst year-on-year there has been an increase in the inbound M&A volume in India this year, on a quarter-on-quarter basis there has been a significant decline, particularly in the last quarter, which could be resulting from the uncertainty caused on account of the current market situation, the recent stand taken by SEBI on the Vedanta-Cairn deal for removal of the put and call options and preemption clauses to from the agreement, the Competition Commission of India now in place regulating M&As (crossing specified threshold limits) in India. Despite this, India still remains an attractive destination for investors, given its positive growth rate of 7-8%.

Darius Udwadia, senior partner at Udwadia & Udeshi, on the future of M&As in India stated: “I would expect to see a lot of activity in this area in the banking sector, with the new RBI guidelines expected to be in place, telecom, as also in transport infrastructure and logistics. Furthermore, there could be more and more companies taking advantage in buying distressed assets outside India, so we can expect to see more of this as well.”

Mr Udwadia is of the opinion that the Government’s liberalisation policy with regard to foreign investment, both inbound and outbound, has helped in boosting M&A activity in India. He added: “Moreover, the buoyant Indian economy, extra cash with Indian corporates, government policies and newly found dynamism in Indian businessmen have all contributed to this new acquisition trend.”

Mr Udwadia pointed out that Indian companies are now also aggressively looking at North American and European markets to spread their wings and become global players, not only for increasing their functional competencies but also for global positioning.

International companies interested in M&A activity in India need to remem-ber that may have to deal with regulatory hurdles, red tape, time taken in obtaining governmental approvals, or tax issues raised which may deter foreign investors. The fact that litigation and arbitration proceedings in India are time consuming is another key challenge.

Udwadia & Udeshi has expertise in varied fields, such as corporate, litigation, arbitration, tax, IP, and competition law. “We can offer a full and complete legal service in relation to any M&A transaction,” concluded Mr Udwadia.

Darius UdwadiaSenior PartnerUdwadia & UdeshiT: +91 022 22001400F: +91 022 2200 1411 [email protected]

India’s appetite for becoming a global M&A player

Issues surrounding IP legislation and litigation in Nigeria

Dr. Bankole SodipoPartnerChief G.O.Sodipo & [email protected]

The provisional figure for the number of workers fatally injured in the UK for 2010/11 is 171, and corresponds to a rate of fatal injury of 0.6 per 100, 000 workers. This figure is 17% lower than the average for the past five years (205). In terms of the rate of fatal injuries, the latest figure of 0.6 per 100 000 workers is 14% lower than the five-year average rate of 0.7.

Gerard Forlin QC barrister of the firm 2-3 Gray’s Inn gave his analysis of the recent statistics:

“Yes the numbers are dropping, but perhaps due to the current lower level of, for instance, construction there are lesser opportunities for fatalities at work as a result of the economic slowdown. On the other hand it is possible that employ-ers and organisations are carrying out more preventative health and safety measures and taking the Corporate Manslaughter and Culpable Homicide Act 2007 and other relevant legislation more seriously. My inclination would be that the two factors could both have possibly had an affect on the statistics.”

Recently the UK has seen the first conviction under the Health and Safety (Offences) Act 2008, which allows for the imprisonment of individuals con-victed of certain health and safety offences. A Mr Dutton, the Health and Safety Manager of a metal distribution firm called South Essex Stockhold-ers Ltd was given a four months term of imprisonment, suspended for two years. He pleaded guilty to one count under s.7 of the Health and Safety at Work Act 1974. Mr Dutton had asked a junior employee to bring him a can of chemical to use as an accelerant to burn debris in a skip. On pouring it in it exploded and seriously burned him. He spent over three months in hospital and required major skin grafts.

Further developments to UK health and safety came In October 2010 when Lord Young, in partnership with the Prime Minister, published a report detail-ing how health and safety regulations needed to be stripped of bureaucracy and red tape in order to build a bigger and stronger society. The recommendations and proposed simplifications in this documentation cover a wide spectrum of health and safety matters and could potentially impact every corner of society. Mr Forlin, Lord Young and David Smith of Zurich Insurance’s broker division debated these issues in the Great Hall at the Chartered Institute of Insurers at a special forum shortly after the report was published.

Mr Forlin stressed the importance of being thorough with such an inves-tigative report and the significance of examining every possible outcome that amendments and modifications to existing systems could bring to people in all walks of life.

“It’s quite like the game ‘Kerplunk’, when you start removing pieces from a structure you need to know the exact consequences of every action. You cannot dismantle a part without first understanding the reasons why it was put there in the first place. At what point is something vital and im-portant pulled out and the marble drops to the bottom? The UK has one of the best low-fatality rates in the world and we need to make the necessary efforts to keep it that way,” concluded Mr Forlin.

Gerard Forlin QC2-3 Gray’s Inn Square+44 (0) 20 7242 [email protected]

Developments in UK Health and Safety Law

Asensio, Barrios, Andrade & Asociados was established in 1975 by Julio Asensio Wunderlich and Jorge Asensio Aguirre. The firm’s partners prioritise quality, efficiency, security and responsibility, and maintain specialist depart-ments for Corporate Law, Commercial Law, Labour Law, Notarial Services, Intellectual Property, Tax Law, Adminis-trative Law, Civil Law and Litigation.

Ignacio Andrade, senior partner, commented: “Our firm is consistent in maintaining the highest ethical standards, and bringing the correct appre-ciation regarding the resolution of conflicts among our clients.”

The firm’s Intellectual and Industrial Property department began in 1985 and was set up by founding partner Jorge Asensio Aguirre to obtain quick and professional results for clients at low cost. The Patents depart-ment was established in 1998 and has subsequently operated in patent registrations as well as in patent litigation; meanwhile, the Trademarks department was established in 1993. Trademark work encompasses op-positions to criminal actions, commercial actions to nullify and cancel trademark registries, unfair trade actions, litigations related to copyright and trademark violations as well as other administrative, civil, commer-cial and constitutional remedies and proceedings related to trademarks and IP within the Guatemalan territory.

Guatemala is subject to the Interamerican Convention for the Protection of Trademarks and Commerce as well as being part of the Paris Con-vention, Berna Convention, Rome Convention, TRIPS, PCT, WPPT and WCT among others. Mr. Andrade noted: “We celebrate a TLC (free trade agreement) between the USA, all Central American Countries and the Do-minican Republic which assists with cross border inquiries pertaining to trademark and IP. However, as with many other countries, the recession resulting from the economic meltdown has decreased trademark and pat-ents applications in general while increasing litigation in such matters.”

In order to increase the firm’s client base and international scope, in 2001 Asensio, Barrios, Andrade & Asociados joined INTA, the Interna-tional Trademark Association.

Mr. Andrade commented: “The opportunities for networking provided by INTA have improved our international visibility as an IP firm, allow-ing us to work with those countries with which Guatemala does not have formal relations. INTA has provided us with several opportunities to work with regional correspondent firms for regional registrations.”

Ignacio Andrade, PartnerAsensio, Barrios, Andrade & Asociados+(502) [email protected]

Guatemala – IP trends & developments

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Over the years the firm has grown and expanded to such an extent that now, with a team of over 20 lawyers, it is classed as one of the largest in Cyprus. It is also one of the very few firms with fully fledged offices in all three of the major cities of Nicosia, Limassol and Paphos. In September 2009 the firm also began its operations in Greece with a fully fledged office in a prestigious area of central Athens, as well as having representative of-fices in Dublin, Dubai, Lugano and BVI.

The firm offers a wide range of services, including:

• Real Estate and Property in Cyprus

• Title Deeds

• Cyprus Immigration Law

• Testimony

• Criminal Law

• Arbitration and Litigation

• Corporate

• Cyprus Tax and International Tax Planning

• Maritime Law

“The underlying principles of Michael Kyprianou and CO LLC are integ-rity, professionalism, transparency, independence, efficiency and dedica-tion,” said Savvas Savvides, partner. “We aim to provide our clients with the best possible and cost effective system.

“We continually strive for improvement and constantly seek to secure international affiliations which we believe enable our firm to meet the most demanding needs of our international clients who often require coordi-nated work over various jurisdictions.”

The firm is also a member of the international law networks of Multilaw and Work-Link for Law.

In relation to the area of Title Deeds, Michael Kyprianou and Co LLC has managed to obtain Court Rulings against Developers ordering them

Savvas SavvidesPartnerMichael Kyprianou and Co LLC(+357) 26 [email protected]

Developments in Cyprus

to issue and transfer the title deeds into the names of the firm’s clients thus enabling them to enjoy their properties without the worry of the developer going bankrupt or re-mortgaging the land.

Commenting on the current business environment in Cyprus, Mr Savvides noted that it is very good from an investment and corporate perspective, with the influx of Russians to the market.

“We consider Cyprus to be very attractive to a considerable number of individuals and foreign investors due to a number of reasons,” said Savvides. “It has a favourable location at the crossroads of Europe, Asia, the Middle East and Africa, it is a full member of the European Union, it has an excellent infrastructure, a high standard of legal, banking and accounting services, the continuing development of the island, the extensive use of the English language, the excellent climate etc.”

According to Savvides, there are no specific legal complexities as Cy-prus is a full member of the European Union and European Law is fully applicable. However, he noted that a large majority of the firm’s clients are not resident in Cyprus, and this obviously causes logistical issues, which are mostly overcome by a notarised Power of Attorney.

Two of the most recent developments in Cyprus relate to the Title Deeds issue which has had consider able press coverage over an ex-tended period of time. These relate to the Amnesty Law which enables owners to get their Title Deeds with certain conditions and the law sur-rounding the Specific Performance. Mr Savvides concluded:

“We expect the firm to continue expanding and successfully representing our clients and winning their cases.”

The independent law firm of Michael Kyprianou and Co LLC was originally founded by Michael Kyprianou, previously a member of the Cyprus Parliament and Chair of the House Committee of Commerce, Industry and Tourism.

Granrut Avocats is a business law firm that brings togeth-er competent and experienced lawyers with unflinching ethics who help you to define your objectives, and deter-mine the best legal strategy to meet them.

A firm that looks to the future

Proactivity and pragmatism are the two core principles that comprise the Granrut Avocats’ approach. Established in 1957 by Bernard du Granrut, a former president of the Paris Bar, for more than 50 years the firm has cultivated the fundamental values of excellence, solidarity, respect and ethics. In addition, the quality of the firm’s processes is ISO 9001 certified.

Granrut Avocats’ strong reputation for all kinds of litigation has always been an asset of the firm; meanwhile, its 17 partners continue to further its continued growth. Granrut is also a founding member of an international network of law firms mainly based in continental Europe.

Granrut partner Jean Castelain presided the Paris Bar in 2010 and 2011. Further, partner Jean Castelain chaired the Paris Bar in 2010 and 2011. Last but not least, Granrut is recommended by Legal 500 and Chambers in most of its fields of activity.

Partner profile

Richard Milchior has been a partner of the firm since 1 April 2005. His fields of work are IP, EC law, domestic competition law and pharmacy law.

Mr. Milchior began his career in 1979 with the firm Lafarge Flécheux Ghestin, then with the firm Raoul Castelain from 1981 to 1982. He was then a partner with Robert Collin & Associés from 1983 to 1995. He be-came of counsel with Nauta Dutilh until 1999. In 2000, he was a partner in the firm Milchior Smilevitch. He is fluent in both French and in English.

After graduating from the Paris IEP (Sciences Po) in 1977, Richard Milchior turned towards law, with an honours degree in Private Law (Paris X Nanterre) in 1978, which he completed with an honours degree in Economic Science (Paris X Nanterre) in 1979. He was admitted to the bar in 1979, then obtained a postgraduate degree (DEA) in General Private Law (Paris II) and a postgraduate degree (DEA) in Criminal Law (Paris II) in 1981. In 1982, he obtained his Ph.D. on Copyright and the Common Market, then, in 1983, he graduated as Master of Comparative Jurispru-dence (New York University).

As regards case studies for Granrut, Mr. Milchior recently filed a case with the Customs Authority on behalf of a foreign client in order to de-fend its trademark rights in France. He is now following up on retention and trademark infringement proceedings following on from this case at the client’s designated representative.

Richard Milchior, PartnerGanrut Advocats+33 (0) 1 53 43 15 [email protected]

Changing trends in IP law – France

2011 is an exciting year for arbitration in Hong Kong. The new Arbitration Ordinance (Cap 609) came into force in June, after a decade of debate. Domestic and international regimes are unified, although parties my “opt in” to certain elements which used to be in the old domestic regime. For example they may agree that they can go to the Hong Kong courts on a preliminary question of law or to appeal an award on a point of law. It abolishes the complex old numbering system, making specific references to the UNCITRAL Model Law and where Hong Kong has departed from it or added to it. It also deals with thorny issues such as confidentiality, multi-party arbitration and consolidation.

The new ordinance adopts the 2006 Model Law amendments on tribunal ordered interim measures, and provides for a broad definition of the term “in writing”. It also continues the existing regime for enforcing awards between Hong Kong and Mainland China, not covered by the New York Convention. For ad hoc arbitration, the Hong Kong International Arbitra-tion Centre remains the appointing authority in default of party choice or agreement, and will also decide whether one or three arbitrators should make up the tribunal.

Some interesting decisions have just come from the Courts. The Court of Final Appeal’s June decision regarding the doctrine of absolute immunity of the assets of the Democratic Republic of Congo was recently confirmed by the Standing Committee of the NPC in Beijing. In July, Mr Justice Saunders of the Court of First Instance set aside an ICC tribunal’s award against a Taiwanese construction company, saying that where a procedural flaw exists, the court must consider whether the outcome of the arbitration might have been different without the error. In the same month, Mr Justice Saunders found an implied agreement that German law governed an arbitration agreement, despite its Shanghai seat, where applying Shanghai law would have invalidated the agreement.

Hong Kong’s unique situation Since its “repatriation” to China in 1997, Hong Kong is a Chinese territory. It is however guaranteed its own independent legal system - developed during British rule - including its own courts. This unique “one country, two systems” situation makes Hong Kong an island of common law in mostly civil law Asia. It is an attractive arbitration venue for Chinese, as well as for foreign parties hesitant to arbitrate in China Mainland. And Hong Kong’s popu-larity is not limited to China-related matters; many arbitrations take place at the HKIAC, where neither party has any connection with Hong Kong or Mainland China.

AculexAculex is a boutique firm specialising in all aspects of commercial dispute resolution: ar-bitration, mediation, advocacy and training. Its principal, Louise Barrington is qualified in Ontario, New York Bar and England. She has been part of the Hong Kong arbitration community since arriving in 1997 to open ICC’s first regional office outside Paris.

“Unlike most international firms, Aculex is a minimalist organisation, with limited overhead and maximum flexibility. We take on smaller cases, under US$10 million, and for larger more complex cases we partner with larger firms,” commented Ms Barrington.

Aside from offering advocacy services and sitting as arbitrator, Ms Barrington acts as discreet advisor to companies and to law firms dealing with international arbitration cases.

Hong Kong’s NewArbitration Ordinance

Arbitration is increasingly popular and flourishing in In-donesia. In today’s globalised world, the use of arbitration is growing together with the internationalisation of the Indonesian economy. Particularly, arbitration is gaining acceptance in international commercial transactions.

Parties to an international commercial transaction have a tendency to incorporate arbitration clauses in their contracts to avoid court proceedings. Apparently, agreeing to have disputes resolved by arbitra-tion is the obvious and usually inevitable solution for parties dealing with Indonesian companies. In international commercial contracts, the parties often have no other option than to agree to arbitration to avoid court proceedings in any of the parties’ jurisdictions.

Indonesia has enacted a relatively pro-arbitration legislation. Al-though the Indonesian Arbitration Law has independently evolved, many issues which are fundamental for proper arbitration practice have been adopted by the Arbitration Law. The Arbitration Law limits or excludes certain interventions by the courts. Furthermore, under the Arbitration Law, the parties have complete freedom to choose ad hoc or institutional arbitration. Such decisions are left entirely to the parties to any dispute. Also, there are no prohibitions on parties choosing an international arbitration institution and conducting the arbitration in Indonesia, if the contract between the parties so provides.

There are varieties of clients who have come to us and sought arbitra-tion advice. Mainly these companies are dealing with foreign counter-parties. These companies are mainly involved in international trading and are caught up in a dispute with the counterparties.

We were recently involved in an arbitration involving an Indonesian major public shipping company against one of its creditors in SIAC (Singapore In-ternational Arbitration Centre). The creditor had previously disclosed details of the arbitration to an Internet-based information source for investment bankers. The disclosure meant that the shipping company suffered damages since some of its investors had withdrawn. The problem also arose since SIAC rules clearly prohibit any party to disclose matters related to an arbitra-tion, unless agreed by the counterparty or by the tribunal.

Budidjaja & Associates has wide experience in guiding clients through complex trade rules and restrictions. We regularly help our overseas based clients overcome barriers to entry in foreign markets, such as defending clients in trade cases brought against local court or arbitration. The recent economic downturn does not overly affect our business. In fact, the practice has been in increasing demand from overseas as well as domestic clients.

International trade and arbitration expert – Indonesia

Tony Budidjaja, PrincipalBudidjaja & Associates+62 21 520 [email protected]

Louise Barrington PrincipalAculex+ 852 6409 0356 [email protected]

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