Issue #32 : Peace & High-Stakes Drama
Welcome to the 32nd edition of Overheard in Asia!
Here are the 🌶 headlines:
Japan: Nippon Steel Corp drops patent lawsuits against Toyota Motor Corp over electrical steel sheets
Ling Yah
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The Right to Arbitrate
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A seven-judge Indian Constitution Bench has only convened twice in the past 18 years.
That includes the recent case between N.N. Global Mercantile Private Limited v. Indo Unique Flame Limited (“NN Global”)
Gourab Banerji, Senior Advocate at the Supreme Court of India, appeared in both hearings.
🍿 What Happened?
Indo Unique (Respondent 1) was awarded a work order from Karnataka Power Corporation Ltd (KPCL) for washing coal and furnished a bank guarantee in favour of KPCL via the State Bank of India (Respondent 2)
Indo Unique then entered into a subcontract with NN Global, which contained an arbitration clause.
Disputes arose surrounding the main contract, leading to KPCL invoking the bank guarantee & Indo Unique invoking the bank guarantee provided by Global Mercantile under the subcontract.
Issues later arose in court relating to the validity and enforceability of an unstamped arbitration agreement.
🚨 Held
In reaching its 3:2 majority, the Supreme Court reviewed:
The relationship between the Stamp Act 1899, the Contract Act 1872, and the Arbitration and Conciliation Act 1996,
Doctrine of separability: An arbitration clause is separate from the main contract & remains valid even if the main contract is void/unenforceable
Doctrine of kompetenz-kompetenz: Which grants the arbitral tribunal the power to determine its own jurisdiction.
The bench ultimately held that an unstamped arbitration agreement was invalid and void in light of Section 35 of the Indian Stamp Act 1899.
👀Why do we care?
The NN Global hearing is one of the rarest of rare cases where an Amicus before 5-judge Constitution Bench was recalled by the 7-bench bench to assist the Supreme Court.
In addition, there has been much debate over the status of unstamped instruments, including ones that contain an arbitration agreement.
The recent NN Global case puts an end to the debate.
Patent Saga Over!
Another major patent lawsuit just settled, this time between chipmaker Broadcom and Panasonic (Japanese electronics maker).
🍿 What Happened?
Last year, Panasonic filed an action in Waco, Texas alleging that Broadcom products - which included microprocessors, integrated circuits and wireless-networking components - infringed 10 of its patents.
Panasonic had apparently approached Broadcom about licensing the patents in 2019 and 2020 but received no response.
Consequently, Panasonic sought damages and a court order to permanently block Broadcom from violating its patent rights at the U.S. District Court for the Western District of Texas.
👀 Now
Both parties have reached a final settlement so all is well and good!
Drama Rama
On 31 October, South Korea's Samsung Display, an entity that is 84.8% owned by Samsung Electronics, filed a complaint against China's BOE Technology Group (and 7 of its affiliates) with the United States' International Trade Commission (ITC).
🍿 Background
Samsung alleges that BOE had violated US law on “unfair methods of competition” and IP infringement in relation to organic light-emitting diode (OLED) display modules and components.
These components are critical in realising curved surfaces of smartphone flexible OLED panels.
The production plan, core design, and structure were proposed by Samsung Display while the manufacturing was done by Toptec - a Korean parts supplier that had once collaborated with Samsung and is the allegedly reason BOE had access to Samsung’s trade secrets.
For context, the South Korean Supreme Court had previously sentenced a former Toptec CEO to 3 years in prison and 11 Toptec executives were similarly convicted by the Suwon High Court for leaking technology overseas while exporting curved laminators to China.
Why do we care?
This is a major IP dispute between two giants in the display manufacturing space. It is also the first (and likely not last?!) time that Samsung Display has filed an ITC complaint against BOE.
The ITC investigation is anticipated to commence early next month.
Stay tuned for the high-stacks drama. 😎
Spotlight: Danna Er (Partner, Eldan Law LLP)
⚒️ What do you do?
I am an International Disputes and Construction Partner at Eldan Law, one of the large law firms in Singapore with a top tier construction practice.
I help clients solve their issues through dispute resolution mechanisms such as arbitration, adjudication, mediation and litigation. I also assist clients with identifying risks and minimising disagreements in a project through the review of their contract documentation.
I am currently lead counsel on a few large scale, complex construction arbitrations with claim values in the hundreds of millions arising from infrastructure projects around the region
🏆 What is your proudest achievement?
Being where I am today - a wife, a mother and a ranked construction lawyer in private practice. It gives me a great sense of satisfaction to learn that clients recognise the dedication I put into their cases.
Nobel prize winner Claudia Goldin coined the term “greedy work” to describe a job that have long and unpredictable hours.
Law and parenting are quintessentially greedy jobs so I am thankful to be able to juggle both roles relatively well.
⌛ There are now 25 hours in a day! How do you spend your extra hour?
Spend the time reading a book, watching a movie with my husband or reading to my daughter.
🚀 If you weren't a lawyer, what would you do?
If I were not a lawyer, I would probably have been a doctor. I have always had a keen interest in diagnosing health issues and finding solutions to those problems. I guess it is still the same problem solving skill set that I apply to my current role as a lawyer.
😋 Your favourite food haunt
In Singapore it would be Luke’s. They have one of the best steaks.
If I may add one more favourite, it would be Peter Luger’s in New York City. Hands down the best steak served.
Food Feature
If you're searching for a scrumptious sandwich to satisfy your hunger, the Parma Ham and Brie sandwich at the French Bakery Ko Lanta is a must-try.
This sandwich is a perfect blend of flavors and textures that will leave you craving for more. The Parma Ham and Brie sandwich is made with freshly baked bread, slices of juicy Parma ham, and a generous amount of creamy Brie cheese. The ham is thinly sliced and tender, complementing the rich and tangy flavor of the Brie cheese.
The sandwich is served warm, making the cheese melt and fuse with the ham, creating a delicious combination of flavors. The perfect meal for a quick bite or a light lunch if you're ever in Krabi Thailand!
Details: Google Maps Facebook
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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!