The Greater China IP Update – July 2022

July 18, 2022
Taiwan’s Judiciary Says Intellectual Property Complaints Can Be Made Online The Judicial Yuan’s electronic litigation and online indictment platform has begun taking complaints about intellectual property infringements.  This new service is partly in response to the Covid-19 pandemic and also because digitization is more environmentally friendly.  For civil and administrative suits involving intellectual property, the system receives requests to upload only legal documents involving provisional attachments, the preservation of evidence, provisional injunctions maintaining a temporary status quo, and the enforcement of a suspension of action.  In the event that the plaintiff in an intellectual property case agrees to an administrative lawsuit, the Intellectual Property and Commercial Court can also upload the litigation documents and the official copy of the ruling to the platform.  Once the upload has been completed and the files are in the system archives, it is considered legally binding and any rulings on the document would be effective immediately.  The Judicial Yuan has urged the public to use the platform as it is in accord with the government policy of becoming carbon neutral by 2050. TIPO Publishes Patent Applications Data. The Intellectual Property Office in Taiwan has published the statistics for patent applications for the first quarter in 2022.  In that time period, TIPO received a total of 17,498 patent applications which was a 2% increase year on year.  There were 12,534 invention patent applications (a 5% increase), 3,328 utility model patent applications (a 6% decrease), and 1,636 design patent applications (a 5% decrease).  8,983 patent applications were filed by foreign applicants, which was an increase of 7% mainly attributed to a jump in the number...

Financial Frauds and the Financial Products and Services Consumer Protection Act

July 18, 2022
The Philippines had its fair share of financial fraud scandals. Only recently, in December 2021, one of the largest banks in the Philippines was hit by a cyber fraud attack by hackers who illegally transferred funds from the accounts of more than seven hundred of its clients. In 2019, an investment scam tricked around five million people to make “donations” with a promise of “blessings” equivalent to 30% of their donations to be paid out every month and for life. These recent challenges faced by Filipino financial consumers were the motivation behind the recently passed Financial Products and Services Consumer Protection Act (Republic Act No. 11765). Through this law, aggrieved financial consumers are now provided with what promises to be a faster way to recover their money. Instead of immediately resorting to the filing of a civil case in court and waiting for months to get a decision, they may now file an action with the Bangko Sentral ng Pilipinas (BSP) or the Securities and Exchange Commission (SEC). The law has given the BSP and the SEC the authority to adjudicate actions arising from or in connection with financial transactions that are purely civil in nature, and the claim or relief prayed for by the financial consumer is solely for payment or reimbursement of a sum of money not exceeding the amount of ten million pesos (P10,000,000.00). Recovery of the financial consumers’ money is also made faster by the fact that the decision of the BSP or the SEC has been declared by law to be final and executory, and the BSP or the SEC may order the payment or...

Worthy of Mention: A recent judgment clarifies rules on disclosure of documents “mentioned” in witness statements

July 18, 2022
The rules on disclosure and inspection of documents in litigation are complex and often leave much room for debate. This is particularly true in the contentious area of unintended compulsory disclosure caused by a passing reference in a witness statement. The consequences of mentioning a document in evidence has long been a trap for the unwary, sometimes leading to crucial additional, unintended, disclosure. Recently, a judgment handed down by the English High Court cast further light on what documents may be subject to disclosure for the sake of being “mentioned” in the witness statement. The Court’s interpretation of the relevant procedural rules provides more certainty for legal practitioners and their clients alike as to the scope of disclosure and should serve as strong persuasive precedent in the offshore jurisdictions where broadly analogous procedural rules tend to apply.  In Hoegh & Anor v Taylor Wessing Llp & Anor1, a defendant sought an order for the production of a document/documents mentioned in four paragraphs of a witness statement in support of the claimant. The relevant rules required disclosure of a mentioned document, and included the proviso that a ‘document is mentioned where it is referred to, cited in whole or in part or there is a direct allusion to it.’ The document(s) sought was regarding a review that the claimants instructed PriceWaterhouseCoopers LLP (PwC) to undertake in around March 2021, and the ground for disclosure was based on the fact that the witness statement made a direct allusion to it. In interpreting what constitutes “direct allusion”, the Court reviewed and relied on previous case law, including the English Court of Appeal’s...

In-House Community Counsel of the Year, 2021 – Awards and Results

July 18, 2022
  Taking pause to recognise and celebrate our award-winning in-house teams in Asia, Middle East and South Africa as they continue to inspire, despite all odds Shortlisted In-House Counsel In our write up of the In-House Community Counsel of the Year Awards, 2020, we envisioned that in “2021 we [would] come to look at the activities of individual lawyers and also departments during and post-crisis”. Little did we anticipate the pervasive disruptive force that COVID-19 would be, being very much still part and parcel of the present. Be that as it may, on 15 June 2022 – better late than never – we had the great pleasure of welcoming our community back to the In-House Community Counsel of the Year Awards, to recognise the standout efforts in-house teams and counsel made in 2021, with special mention given to external counsel that, too, left a mark. As has come to be the “new normal” given the prevailing pandemic, our In-House Community team arranged for this year’s awards ceremony to be conducted over Zoom. This allowed us to have in attendance 90+ representatives of both in-house and private practice from several jurisdictions, including Hong Kong, Singapore, China, Philippines, Malaysia, Vietnam, UAE, Australia, South Korea, India, UK, South Africa, and Canada – a truly global event, albeit remote! We thank all of you that took the time to participate in this awards process, to recognise the hard work of our community, to celebrate their successes, and to take inspiration from their winning visions. CATHERINE DANNAOUI OF HANDSON HONG KONG DAE SAGONG OF YOON & YANG The online awards were hosted by In-House...

Remedies for Breach of Contract in Vietnam

July 7, 2022
  It is common knowledge that a well-drafted contract will help to minimize disputes in business transactions, but not everyone fully understands what constitutes a well-drafted contract. Is a contract that clearly regulates the obligations of the parties sufficient? No, a well-drafted contract will not only let the parties know what to do; but should also force them to do what they promised, regardless of whether they want to do so or not. To achieve that, all contracts should have a well-designed system of remedies that the parties can invoke to prevent breach of contract or, in some cases, collect the reasonable compensation for the damage caused by such breach. Below is our analysis of some common remedies and how to effectively use them in contract drafting. Monetary Remedies Compensatory damages Compensatory damages are money to compensate for all losses caused by the breach of contract. This remedy can be regulated for almost all types of contracts and all types of breaches. Nevertheless, the reliability of compensatory damages is low because it requires heavy burden of proof in practice. At the court, the plaintiff will be required to prove the accurate number of losses by documents such as contracts, invoices, etc. and estimation of losses is usually not allowed, which can be quite impractical for some kinds of losses. For instance, in a case where Company A fails to deliver the goods to Company B, Company B can claim the costs for purchasing the goods from another third party using the corresponding contracts and invoices. However, for the losses of profits and business disruption caused by Company A’s breach...

Amendments to Law on Enterprises, Practical Notes on Company’s Dual Legal Representative Regime and Government’s Detailed Guidance on Implementing Investment Regulations in Vietnam

July 7, 2022
I. AMENDMENT OF THE LAW ON ENTERPRISES AND PRACTICAL NOTE ON COMPANY’S DUAL LEGAL REPRESENTATIVE REGIME On 11 January 2022, the National Assembly adopted Law No. 03/2022/QH15 on amendments and supplements to a number of articles of Public Investment Law, Law on Public-Private Partnership Investment, Law on Investment, Law on Residential Housing, Law on Bidding, Electricity Law, Law on Enterprises, Special Consumption Tax Law, and Law on Enforcement of Civil Judgment (collectively, the “New Amendment Law”). The New Amendment Law took effect on 1 March 2022. Vote-counting method at General Meeting of Shareholders (“GMS”)  1. Vote-counting method at General Meeting of Shareholders (“GMS”) Previously, Article 148 of the Law on Enterprises provided that the voting threshold of shareholders at a meeting of the GMS was determined based on the number of votes of all participating shareholders, regardless of whether these shareholders cast their votes or not. However, under the New Amendment Law, such voting threshold is now determined based on the number of votes of participating shareholders who cast their votes. 2. Requisite signature for effectiveness of the meeting’s minutes of Members’ Council (“MC”) or Board of Director (“BOD”) Pursuant to a former provision of the Law on Enterprises, the meeting minutes of MC (with respect to a limited liability company) or BOD (with respect to a joint stock company) require signatures of the chairman of the meeting and the person who prepares the meeting minutes. However, their refusal to sign did not invalidate the meeting minutes as long as other members attending the meeting have all signed the meeting minutes. This provision could result in a circumstance that any member of...