Can WhatsApp Messages Be Used as Evidence

December 26, 2022
With so much of our lives online, what do we do when things go awry? Do our verbal agreements over messaging platforms like whatsapp count? Generally speaking, electronic evidence is less conclusive than traditional evidence (mainly paper documents). It is more difficult to prove the integrity of electronic evidence and more challenging to document enough evidence electronically to tell the full story. Electronic devices are fast replacing ‘paper documents’ in commercial transactions all over the world (including Vietnam) Emails, video calls and messaging apps are increasingly being utilized by enterprises for information exchange, contract execution and implementation. What are some clear advantages of electronic transactions? Efficient Convenient Cost-effective What are the hidden risks?  Generally, electronic evidence is less conclusive compared to traditional evidence. When things go awry, the identities of the sender and recipient, the time of sending, the receipt of goods or documents, and the authority to sign become sources of endless contention. How electronic evidence fair against transition evidence Electronic evidence Traditional evidence Can be structurally distorted when stored in computer or transmission lines. Difficult to be structurally changed. Can be modified without any trace. Changes are easier to detect. Hard to identify as it is stored digitally and encrypted. Easy to identify by viewing. Simple to duplicate Hard to duplicate. Quality of evidence depends on the quality of the technology Quality of evidence depends on its physical condition. These “hidden risks” may prove to be extremely costly to the business. Tips to manage risks in a modern world During the execution, performance and termination of a commercial contract, use electronic mails as the primary form of...

International Arbitration and the Circle of Control

November 28, 2022
A Look at the psychological benefits of arbitration and the status of arbitration in Thailand There are often many reasons cited as to why international arbitration should be the preferred method of dispute resolution for parties: it can be quicker, cheaper, the process is private, the award is final, and the parties have more autonomy over the process. Whilst some of these factors are debatable (especially in highly complex commercial cases), the fact that parties to an arbitration can have more autonomy than in traditional court litigation is usually less controversial. Party autonomy in arbitration is often a significant factor that persuades contractual parties to consider arbitration over other methods of dispute resolution. This is not surprising, as the need to have control and certainty is an innate human desire that often brings us security and peace. Our need for control and certainty There is no doubt that Covid has had a detrimental effect on the economy and many businesses. Most people would also agree that it has taken a significant toll on people’s mental health. Social distancing forced people to keep a distance and lose close contact with friends and colleagues. For some people, it meant a loss of social contact and socialising all together, due to fear of catching the virus if they stepped out of the safety of their homes. Lockdowns and school closures meant that more families were stuck at home, glued to their computers for work or online school and having to navigate the lack of privacy and personal space in their own homes. For working parents, the stress of juggling work from home, not...

Getting to know… Joe Liu

November 28, 2022
From London and The Hague, to Singapore and Hong Kong – Liu leverages on his international experience as he forges a new path as independent arbitrator 1.  Can you please share with us a little of your background prior to joining the Hong Kong International Arbitration Centre (HKIAC), and what your time spent there was like? I started my career at the Singapore International Arbitration Centre. I then did two internships at the High Court of Hong Kong and the Permanent Court of Arbitration in The Hague. After completing the internships, I joined Allen & Overy (A&O)’s Hong Kong office as part of their Global Arbitration Group. During my time at A&O, I was appointed as a member of the HKIAC Rules Revision Committee which was tasked for with drafting the 2013 HKIAC Administered Arbitration Rules. With that experience, I joined the HKIAC in 2014 and began my eight years of journey at the institution.     I had a hand in many aspects of HKIAC’s operations including case management supervision, rules drafting, corporate governance and business development. There was no fixed description of my role at the HKIAC and my work every day was different and interesting. I spearheaded many of the HKIAC’s initiatives and drafted some of their practice notes and guidelines.  It was an invaluable opportunity to gain insights on the institution’s internal management and practice and to work with many talented people.  2.  What prompted your recent move to being an independent arbitrator and how have you found the transition thus far? Can you tell us a little about your new practice? Having worked in private practice and...

Outcome Related Fee Structure Arrangement for Arbitration in Hong Kong

November 24, 2022
A win-win solution for legal practitioners and clients 1. Introduction 1.1 Why introduce ORFSA in Hong Kong? Until recently, Solicitors in Hong Kong were prohibited from charging outcome related fees in arbitration.  On 17 December 2020, the Outcome Related Fee Structures for Arbitration Sub-committee of the Law Reform Commission (Sub-committee) published a consultation paper proposing changes to the law in Hong Kong to enable lawyers to use Outcome Related Fee Structures (ORFS) for arbitration in Hong Kong and elsewhere, with the objective of enabling Hong Kong to compete on a level playing field with other leading arbitral seats where some form of ORFS is permitted, thereby maintaining Hong Kong’s status as one of the World’s premier arbitration venues. On 15 December 2021, the Law Reform Commission (Commission) released a report on ORFS for Arbitration recommending that Hong Kong law be amended by lifting the prohibition on the use of Outcome Related Fee Structure Agreements (ORFSA)1 for arbitration taking place in and outside Hong Kong and elsewhere.  The Sub-committee believed that such fee arrangements were attractive to clients for many reasons, such as financial management, access to justice and a general idea that lawyers in Hong Kong would be willing to share the risk inherent in arbitrating.  Moreover, after Hong’ Kong’s close competitors, London and Singapore, implemented their own version of ORFSA, it was expected that Hong Kong to do the same.  1.2 Introducing ORFSA in Hong Kong2 On 30 March 2022, following the Commission’s recommendation, the Arbitration and Legal Practitioners Legislation (Outcome Related Fee Structures for Arbitration) (Amendment) Bill was introduced by the Legislative Council. ORFSA was incorporated into Hong Kong’s...

Board Portal Communications vs. Email and PDFs

November 24, 2022
Security is the obvious and primary concern when using email or PDFs to disseminate sensitive board information (for an in-depth discussion, see our e-book on email security). But there are other worrisome consequences that arise when resorting to email and PDFs for board communications. All of which hinder, sometimes to a significant degree, the ability of the board to adequately prepare, remain engaged, and conduct productive board meetings.  In this post, we discuss some of the pitfalls of using email and PDFs for board communications, and highlight how board portals can address these. Dangers, Risks, and Challenges of Using Email and PDFs in the boardroom A.) LACK OF SECURITY AND PRIVACY: AN ONGOING CONCERN For purposes of discussion, we can broadly define security as restrictive, controlled access to systems, processes or data. Privacy, on the other hand, has more to do with owning and controlling data.  Security Implications of Email Email inboxes have always been prone to hacking. Since boards possess mission-critical and sensitive organisational data, they have become prime targets for cybercrimes — such as whaling. Board members are inadvertently tasked with ensuring that they have adequate digital security measures in place to limit their exposure to these vulnerabilities.  Privacy Implications of Email While most personal email providers pride themselves on being secure, there can be questions around data ownership and data governance. After all, information is stored in servers under another party’s control. In this light, data privacy policies are always worth a second look, especially when it comes to data collection, tracking, transparency, third-party access and determining exactly how information is used. THE ADVANTAGE OF BOARD...

The Greater China IP Updates – November 2022

November 17, 2022
Revisions to the Examination Guidelines on Distinctiveness of Trademarks Took Place in September in Taiwan To enhance the examination principles for distinctiveness of various types of trademarks, the Taiwan Intellectual Property Office has promulgated revisions to the Examination Guidelines on Distinctiveness of Trademarks.  TIPO has made the revisions to ensure that the basis on which distinction is determined for trademarks aligns with current market transactions.  The main revisions are as follows: More details have been added to the different composition patterns of foreign alphabets. Reference examples for determining whether descriptions are designed and distinctive have been provided. Assessment criteria and examples for alphanumeric combinations and numbers have been added. Examples of popular graphics, purely informational graphics, and commercial design graphics have been added. Criteria for country names, geographical images, and geographical names used in descriptions of product origin as well as misleading use or misrepresentation have been added. Assessment criteria and reference examples for names and portraits of well-known public figures who are recently deceased have been provided. Revised criteria for slogans, common words, new terms and idioms have been added. Trademark graphics which include the full name of the company or domain names are considered strictly informational in order to prevent affecting the certainty of the scope of trademark rights and the function of correctly indicating the source of the product or service in the event that trademark rights are transferred or there is a change of name after registration. Taiwan’s Supreme Administrative Court Affirms Artificial Intelligence Inventions Not Patentable The Taiwan Intellectual Property Office and the Ministry of Economic Affairs has rejected several applications invented by AI. ...