Issue #26 : Play Fair!
Welcome to the 26th edition of Overheard in Asia!
Here are the 🌶 headlines:
India: Indian Court dismisses 14 lawsuits against Google over its payment policy
India: Delhi High Court denies Spicejet's attempt to overturn a 2018 arbitration award worth $70.1M
Singapore: Singapore Post Limited to pay additional $1.7M over arbitration proceedings
South Korea: South Korea's dispute with the Central Bank of Iran over its $7B in frozen assets is set for legal arbitration
Ling Yah
P/S: Know of any interesting seminars happening? Drop us a note at editor@overheard.asia!
To Kiss or Not To Kiss
Here’s a case that is likely to raise the ire of many Malaysians.
🍿 What Happened?
Last month, The 1975 performed at The Good Vibes music festival in Kuala Lumpur (“Festival”).
The performance was cancelled halfway after The 1975’s frontman, Matt Healy, launched a profanity-laden, alcohol-driven speech and kissed his male bandmate. He was also involved in the destruction of equipment (including a drone) while on stage.
The remaining 2 days of the 3-day Festival was cancelled.
👀 Now
Future Sound Asia, the organisers behind the Festival, are seeking $2.7M (RM 12.3 million) in damages from The 1975 for breach of contract. Particularly in light of the pre-show written assurance signed by The 1975’s representative that The 1975 would adhere to all local guidelines & regulations.
This is the second of 2 legal actions taken against The 1975.
The first was a pro bono class action suit by local artists and vendors affected by the cancellation of the Festival.
Given the significant financial and political repercussions behind this case, we’re keeping an eye on this to see how things turn out!
Tesla Beer
Sometimes, it doesn’t pay to take the short cut.
Just ask Zhongyi Food Co Ltd and Tangjiu Network Technology (Shanghai) Co Ltd (collectively referred to as “Defendants”).
🍿 What Happened?
The Defendants tried to take advantage of reputation behind the famous “Tesla” name.
In 2019, it launched a series of alcoholic beverages called Tesla Soda and Tesla Beer which bore the T-shaped trademark. Its publicity campaigns featured words like “the pioneer brand of American pre-mixed drinks” and “the top international brand” and even included images of the Tesla Model X!
Tesla China was not amused and sued the Defendants to defend its logo and reputation as a leading automaker in the electric vehicle space.
👀 Verdict from the Sixth Court of Shanghai Intellectual Property Court
Tesla has won its trademark and unfair competition lawsuit against the Defendants in China.
The Court held that the Tesla series of trademarks were “well-known trademarks” and that the Defendants’ behaviour constituted subjective malice.
The Defendants have been ordered to pay a fine worth $690,000 and issue a public statement in newspapers and magazines.
P/S: Tesla has been building a hardcore litigation team for several years so we’d advise not messing with them!
Play Fair!
A leading Japanese supplier of semiconductor test equipment, Advantest Corporation, has just secured a hefty $20M settlement via its 2 US subsidiaries, Advantest America Inc and Advantest Test Solutions Inc, in its arbitration against AEM Holdings Ltd, Lattice Innovation Inc and Samer Kabbani, the CTO (collectively referred to as “AEM”).
🍿 So What Happened?
Advantest alleged that Kabbani, while working full-time as VP of Advantest Test Solutions Inc, was also the CEO and principal owner of a “side business” called Lattice Innovation.
His connection with Lattice wasn’t disclosed when Kabbani inserted Lattice into Advantest’s supply chain and arranged to have a sub-supplier locked into an exclusivity contract with Lattice.
AEM later hired Kabbani and purchased Lattice.
👀 Arbitration
During the arbitration, it transpired that Kabbani had purposefully deleted WhatsApp from his phone before turning it over to Advantest’s lawyers.
The arbitrator issued subpoenas to compel 2 Lattice employees (not parties to the arbitration) to appear & produce documents at a special hearing (“Order”).
The Fourth District Court of Appeal later found that the arbitrator had abused his discretion and overstepped his statutory authoring in granting the Order.
🙌🏻 And Now
Parties have now agreed to settle without any findings or admissions as to breach or liability.
In particular, AEM is to:
Pay $20M to Advantest
Immediately terminate all exclusivity provisions with the sub-supplier; and
Confirm that all relevant work product by Lattice belongs to Advantest
Looks like it doesn’t pay to play unfairly. 😉
Spotlight: Paul Heath (Arbitrator & Mediator, Bankside Chambers)
⚒️ What do you do?
I am presently based at Bankside Chambers in Auckland and in Singapore. Bankside is a barristers’ chambers, of which a number of arbitrators and mediators are members. A group of us set up a room in Singapore at Maxwell Chambers, using the “Bankside” brand and we have two resident lawyers who will have foreign legal practices operating from there. I am currently undertaking arbitral appointments from both SIAC and HKIAC.
I started as a litigation lawyer in a firm of barristers and solicitors in New Zealand in 1980, appointed as a Queen’s Counsel in 1998, doing primarily commercial and insolvency litigation.
🏆 What is your proudest achievement?
The proudest part of my litigation experience was appearing on three occasions in the Privy Council, then New Zealand’s apex court. I was also a member of the Law Commission, New Zealand’s law reform agency. I undertook important work on electronic commerce, insolvency and arbitration.
I then became a High Court Judge for 16 years, sitting as an ad hoc Judge of the Court for about 13 of them. My proudest achievement in the High Court was to preside over a fraud trial, where the accused were charged with having deceived the Government into giving a Guarantee for investor deposits which ended up being called upon for $1.6 billion. Although taking some five months to hear, the trial concluded with no appeals, whether against conviction or sentence.
⌛ There are now 25 hours in a day! How do you spend your extra hour?
I would like to spend the extra hour with my wife and enjoy some family time.
The demands of work at present mean that recreational time is limited.
🚀 If you weren't a lawyer, what would you do?
I do not really know what I would do if I was not a lawyer – or an arbitrator and mediator as I am now. As a youngster, I would have loved to have been a professional cricketer, but just did not have anything close to the necessary talent. Anyway, I am pleased with what I have achieved during my time as a lawyer.
😋 Your favourite food haunt
My favourite food haunt is still, at this stage, in New Zealand.
My wife and I holiday in a small South Island town called Wanaka, which is nestled among mountains that contain (within one hour’s drive) four different ski fields. It is an Indian restaurant (Ashraf’s) run by husband and wife and working on a first come first served basis for three or four hours each evening. Wonderful food.
Food Feature
Fukuniku is one of the hottest cafes to pop up in KL, Malaysia. And it's menu is simple but delicious: a variety of thick & textured pork/beef patty (hambagu) on top of a rice bowl.
The Signature (which includes a raw egg) is fantastic, as is the yuzu kosho. A more unusual flavour is durian! So if you fancy a nice work lunch near KL Sentral, definitely give this a try.
P/S: It gets crowded quite quickly so try avoiding the lunch hour crew!
Details: Instagram, Facebook, Google Maps
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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!