Issue #15 : Are We Truly Global?
Happy Monday!
Is your head still spinning from SVB's meltdown? Let's take a lot at what Asia's been up to, eh? 😉
Here are the latest 🌶 legal headlines:
Australia: Labour Government to intervene on McDonald's dispute
China: Former Chinese telecom giant manager indicted for bribery & abuse of power
India: Indian mining tycoon's family revives USD 4 million investment treaty claim against Uruguay
Japan: Japan's antitrust authority files criminal complaint over alleged Tokyo Olympics cartel
Japan: Nike Inc suits Japanese streetwear company over alleged trademark infringement
South Korea: South Korean government appeals court order to compensate victim of the 1968 Vietnam War massacre
South Korea: Female members of the LG family file inheritance suit against LG Chairman Koo Kwang-mo
Ling Yah
P/S: Know of any interesting seminars happening? Drop us a note at editor@overheard.asia!
The Fight for Common Prosperity
Let’s talk about a multi-million dollar lawsuit over lithium-ion batteries.
The two stars of this show are:
Contemporary Amperex Technology Co Ltd (“CATL”): the world’s largest EV battery producer with control over half the share of China’s power battery market; and
China Aviation Lithium Battery Technology Co Ltd (“CALB”): China’s 3rd largest EV battery maker
🚨 History of Bad Blood
CATL & CALB have a history of bad blood.
CATL previously sued CALB for infringing 5 of its patents involving positive electrode plate batteries, explosion-proof devices, current collector components and batteries, lithium batteries, power battery top cover structures, and other batteries.
CALB lost (but is appealing).
🔋 Latest Battle Over Lithium-Ion Batteries
The Fuzhou Intermediate People’s Court just ruled over CATL & CALB’s latest tussle over lithium-ion batteries.
CATL won again, with CALB being served with another injunction and a hefty financial penalty of:
RMB 35.8 million in damages;
RMB 798,000 for provisional patent protection (from the time of the patent application publication); and
RMB 202,000 for reasonable expenses
Critics would say that CATL is moving to suppress its competitors and monopolise the market. A strategy at odds with China’s push for ‘common prosperity’.
CALB is also appealing this ruling but who will prevail?
Your guess is as good as ours.
Trouble in Paradise
Cocobay was meant to be one of the largest condole projects in Vietnam. It launched in 2016 with a total investment of USD 464.04 million & even Cristiano Ronaldo was hired to promote Cocobay!
👀 Trouble In Paradise
In 2020, Thanh Do (Cocobay’s developer) stopped paying its annual yield of 12%.
Hua Binh Construction Group - one of the largest construction companies in the south of Vietnam - went to court, alleging that Empire Group (the Thanh Do subsidiary in charge of operating Cocobay):
Failed to uphold its annual yield payment;
Changed the project plan, converting condominiums into normal apartments without consulting the buyers;
Asked the buyers to pay an additional 15% of the apartments’ total value to cover the conversion cost;
Used advance monies for non-related purposes;
Failed to issue handover guarantees; and
Appropriated state tax revenue.
😮 2022 Vietnam International Arbitration Centre (“VIAC”) Ruling
On 6 Dec 2022, the VIAC ruled that Thanh Do had to pay Hua Binh nearly VND 368 billion in debt, interest, legal and arbitration fees.
Payment was to be made in 30 days, failing which an annual interest of 11.5 - 14.6% would apply to the original debt of VND 242 billion and 10% on the remaining amount.
❌ But Thanh Do refused.
For Thanh Do, they claimed that the VIAC had violated its self-defence rights as Thanh Do wasn't asked to participate in the final meeting over the lawsuit. Instead, the decision was made based only on the documents that Hua Binh had submitted & Thanh Do learned of the decision only after the meeting was done.
Thanh Do’s request for a new meeting was denied.
Thanh Do has since filed a complaint to remove VIAC’s ruling which if granted, would see the lawsuit be transferred to a new court and the arbitration begin anew.
Is our world becoming more global?
We’re supposed to live in a global world.
Be global citizens.
The 1958 New York Convention was drafted with that in mind: the belief that international commerce & international politics could be separated.
But reality has proven to be very different.
Which begs the question: Can the 1958 New York Convention survive?
Is there still a place for international arbitration?
This was the question that a recent AIAC panel (that consisted of Toby Landau KC, Lucas Bastin KC and KC Lye, with Grace Chaw as the moderator) sought to answer.
Some highlights:
Toby Landau KC traced the history of international arbitration and explained how arbitration was used to bridge the divide of the Cold War. In a way, international arbitration is a product of a fractured world, and it continues to have the potential to be the force of harmony which brings together the world.
Lucas Bastin KC shared how international arbitration is now facing greater side winds, with many challenges and issues taking a “sovereign character”. That said, the cases that we see in the news are only the tip of an iceberg. Most international arbitration cases (which are often unreported) go through the process smoothly and helps parties resolve disputes in a satisfactory manner.
KC Lye talked about how the ideological foundation for the NY Convention were (a) that investment and trade are inherently “good things”, which can be separated from politics; and (b) that as countries got richer through trade, their political systems will develop into liberal democracies. However, it appears that the initial champions of this ideology no longer believe in the ideology. The west is starting to take the view that politics is more important than trade, as illustrated via their use of economic sanctions in the Ukraine-Russian crisis.
The question of whether international arbitration will survive is more about whether it will survive in its present form, or whether it will develop into a different form. In this regard, the speakers generally felt that it is important for all countries – and not just the major players in international arbitration today – to step up and be more active in developing their own take or model for international arbitration. We must also address the concerns that international arbitration is controlled by a select group of individuals or states, and that the process (which is still predominantly based on an Anglo-Saxon model) is not owned by everyone.
Spotlight - Mino Han (Partner, Peter & Kim)
⚒️ What do you do?
I’m a partner at the Seoul office of Peter & Kim, an International Arbitration boutique with offices worldwide.
People would call me a ‘construction guy’ because I specialize in complex international construction disputes.
But I also work on investor-state disputes and other commercial arbitrations. What I love most about my job as an international arbitration lawyer is the oral advocacy. Always a thrill to persuade the Tribunal with my words!
🏆 What is your proudest achievement?
In 2021, I had a lengthy hearing over the course of 2 weeks – every day from 11:30pm till 6am (- yes, it was tough!). It was during the pandemic and took place virtually, and involved a lot of adrenalin and military bootcamp-style time-management. After that, I felt like I could overcome any circumstances and handle any type of hearing.
Good news: We won the case! So, it was all rewarding in the end.
⌛ There are now 25 hours in a day! How do you spend your extra hour?
I’m a serious bookworm – which is not only limited to reading books. I habitually buy books with nice covers (I do judge a book by its cover), browse through bookstores and watch booktube videos from all around the world.
🚀 If you weren't a lawyer, what would you do?
I would probably be a bookstore owner, with some German pastry in the corner and good café lattes. Come by, if you need a good book recommendation.
😋 Your favourite food haunt (bonus points if it's off the beaten track!)
It’s really off the beaten track … my mom’s homemade pasta with kimchi added to the tomato sauce! Complex flavours, bringing Europe and Korea together in one plate.
*This interview has been edited for clarity and brevity.
Food Feature
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Special thanks to Overheard in Asia's sponsor:
David Grief was described as "the Law's Middleman" (Business Times, 2021). You can reach out to him at dg@davidgrief.com if you need help identifying the right lawyer, arbitrator or expert for your matters, or even if you just want to grab a drink 🍵🍺 with someone who has managed and mentored lawyers for almost 5️⃣0️⃣ years!