Issue #33 : The Epic Battles
Welcome to the 33rd edition of Overheard in Asia!
Here are the 🌶 headlines:
Hong Kong: Hong Kong-based Lenovo sues Asus in California federal court alleging patent infringement
South Korea: Regeneron accuses its South Korea-based rival of infringing patents related to top eye medication
Ling Yah
P/S: Know of any interesting seminars happening? Drop us a note at editor@overheard.asia!
International Investment Arbitration and the Search for Depoliticisation
On 16 November 2023, Toby Landau KC (“Toby”) delivered this year’s Alexander Lecture hosted by CIArb entitled “International Investment Arbitration and the Search for Depoliticisation” ("Lecture").
The live recording is available on YouTube. Alternatively, you can read the transcript here.
Today, we have a special OIA contributor in the form of Raphael Kok (Senior Associate at LCW Partnership), who will be sharing his 5 main takeaways from Toby's Lecture:
Investment arbitration often turns a blind eye to the lives of the indigenous populace and deaf ear to their voices. The farmers toiling on the mountainous Andean paradise in Copper Mesa v Ecuador (US$19.4 million award). The failed land reforms resulting to forcible eviction of Western settlers in Pezold v Zimbabwe. The Baluchistan uprising against the Reko Diq mining project in Tethyan v Pakistan (US$5.9 billion award).
The risk of arbitral inflammation and scarring is increasing. This is because the substantive coverage of investment arbitration is spreading. The expansive protection afforded by creeping expropriation and legitimate expectations goes beyond the traditional scope of diplomatic protection. Arbitral tribunals are now tasked to rule on climate change, effects of wars, and states of emergencies.
The entire genesis of the ICSID regime was to move away from the politics of diplomatic protection towards a rules-based system. Yet, now more than ever, arbitral tribunals are placed right in the middle of political storms. Prime example being the phasing-out of nuclear plants in Vattenfall v Germany. This has led to an exodus by States away from bilateral investment treaties, based on UNCTAD’s statistics.
The traditional adversarial model of arbitration is ill-suited to handle modern complex investment disputes. Amici curiae participation is permitted on a restricted basis and not taken seriously. Witnesses are chosen based on ability to speak and withstand cross-examination, rather than extent of knowledge of facts. Parties’ sole aim is winning cases, and not discovering truths. Policy is grey, and not black and white.
Investment arbitration calls for a rethink in procedure. A more inquisitorial model is desirable. An overhaul of arbitral rules is unnecessary. There are existing provisions in place. Prime example being Section 34(2)(g) of the English Arbitration Act 1996 permitting tribunals to “take the initiative in ascertaining the facts and the law”. Ultimately, it’s a human mindset problem. Arbitral practitioners being averse to change.
To Politicise Or Not To Policise?
To address the problems afflicting investment arbitration, Toby advances a counterintuitive solution: “We actually need to think about injecting politics back in”. Investment disputes ought to be resolved against their “natural habitat”. The indigenous populace must be heard. The tribunal must be informed of the underlying socio-political issues. Arbitrators and lawyers must embrace a mindset shift. Improve the arbitral process to enfranchise the affected people.
On a separate note, thank you Raphael for sharing your takeaways with us here at OIA!
The Epic Battle
Finnish telecom giant Nokia has invested over €140 billion into its R&D and is determined to protect its proprietary rights by all means necessary.
According to Nokia’s Chief Licensing Officer, Arvin Patel, Nokia was in discussions with big tech companies for years over their allegedly unauthorised use of Nokia’s patents.
Agreements were reached Apple and Samsung, but not so with Amazon and HP.
So Nokia has taken the next big step.
Nokia has now sued Amazon in 5 global jurisdictions, i.e. the United States, Germany, the UK, the European Unified Patent Court and India, over patent infringements involving Amazon’s Prime Video service as well devices that are allegedly violating Nokia’s patents on “video compression, content delivery, content recommendation and aspects related to hardware”.
It has also gone after HP in the US for allegedly using Nokia video technology without its permission.
This is going to be quite the epic battle.
That said, Nokia has made it clear that “litigation is never our first choice” so maybe a settlement might be around the corner?
Spotlight: Ervin Tan (Director, Adroit Law LLC)
⚒️ What do you do?
I’m currently one half of Adroit Law LLC (the other half being the immensely capable Amy Seow). Together we provide flexible and affordable dispute resolution and advisory services, in collaboration with other firms or directly to clients.
At home: I’m getting new dining chairs, and through this I am going down a rabbit hole of Danish names; planning a honeymoon after a Covid-era wedding (primarily: the logistics, not the sights); start building a Lego Millennium Falcon; hosting friends for the year-end, which means menu planning and a rather urgent start on ferments which will go into the meal.
🏆 What is your proudest achievement?
Delivering a wedding speech with just three main internalised points and three glasses of champagne; project managing a renovation at the tail end of the pandemic by finding vendors on Carousell and completing the renovation under budget and faster than what was quoted by a main contractor; once hosting (with my partner) two lunches and two dinners over a weekend; completing an arbitration quickly and successfully so that a main witness could be reunited with his family he had not seen in over a year; graduating from law school (to be the first lawyer in the family).
⌛ There are now 25 hours in a day! How do you spend your extra hour?
Finding out where that extra hour came from. Alternatively, learning a language, putting that daily hour toward preparing for an outrageous weekend dinner party, or an additional 30 minutes of cardio (the other 30 being motivating myself to start).
🚀 If you weren't a lawyer, what would you do?
I would either: work at Industrial Light and Magic (or do equivalent work that entertains and engages in the nature of human belief); or work at IDEO or equivalent, designing products that make the world a tangibly better place.
😋 Your favourite food haunt
I don’t have a favourite but a few excellent meals in recent days to which I would repeatedly return: Jin Xi Lai (Mui Siong) Minced Meat Noodle at Veerasamy Road; Charlie's Peranakan Food at Golden Mile Food Centre; Serangoon BBQ & Curry 1983 at Sin Ming.
Food Feature
If you're looking for a delicious meal in Indonesia, you can't go wrong with Bebek Sinjay Madura. This dish is a specialty of Madura Island, just a bridge away from Surabaya, and is loved by locals and tourists alike.
Bebek Sinjay Madura is roasted duck cooked in a spicy sauce made from a blend of herbs and spices. The sauce is what sets this dish apart and gives it its unique flavor. It's usually served with rice and sambal, a spicy sauce made from chili peppers, tomatoes, and other ingredients.
If you're looking for an authentic Indonesian meal, be sure to give this dish a try!
Details: 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!