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...
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...
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. ...
November 9, 2022
The world’s energy shortage crisis immensely affects the fluctuation of prices of natural gas and fuel, as well as the global economy. Many leading countries have encouraged and promoted the development and use of clean and renewable energy for sustainability. Thailand is well aware of the global trend and the rise in the country’s energy cost, so the Thai government, in collaboration with the relevant public authorities has set out one of the country’s goals to be a low-carbon economy with net-zero carbon emissions. As a result, the Energy Regulatory Commission of Thailand (ERC) has published the Regulation re: Procurement of Electricity from Renewable Energy under Feed-in Tariff (FiT) for the year 2022 – 2030, effective on 28 September 2022 (the “Regulation”), and the Announcements of the Invitation to Purchase the Renewable Energy under the FiT for all promoted renewables, i.e., Biogas (wastewater/ solid waste), wind, ground-mounted solar, and ground-mounted solar with battery energy storage system (BESS), effective on 1 October 2022 (the “Announcements”). The key elements of the Regulation to promote the procurement of renewable energy are as follows: Renewable Energy Power Producer Power Purchase Agreement Form Proposed Electricity to be sold FiT rate (THB per Unit) Biogas (wastewater/ solid waste)   Remark: fossil fuel is not allowed, except only at the commencement stage of the power plant operation. ·     Small Power Producer (SPP)* ·     Very Small Power Producer (VSPP)** Non-Firm Not exceeding 90 MW THB 2.0724*** (for 20 years) Wind THB 3.1014*** (for 25 years) Ground-mounted Solar THB 2.1679*** (for 25 years) Ground-mounted Solar with BESS ·     Small Power Producer (SPP)* Partial Firm More than 10 MW...
November 9, 2022
On September 14, 2022, the Parliament approved the draft of the Act Amending the Thai Civil and Commercial Code (the “Amendment Act”) covering Title XXII on Partnerships and Limited Companies. Under this Amendment Act, a new M&A scheme and amended corporate governance requirements have been introduced for limited companies. The draft was initiated by the Department of Business Development (“DBD”) with the goal of facilitating business operations by revising outdated requirements, removing excessive corporate compliance obligations, and promoting the business consolidation scheme under the Thai Civil and Commercial Code (the “TCCC”). The Amendment Act was recently submitted to the Cabinet for His Majesty the King’s signature on September 19, 2022, and will take effect 90 days following its announcement in the Government Gazette. This article highlights key elements of the Amendment Act, as well as comparisons with the existing provisions under the TCCC and the implications for business operators. Key Elements of the Amendment Act The groundbreaking changes proposed under the Amendment Act can be divided into three major aspects as set out in the following table. Topic Details 1. Company Establishment (i)      Minimum Number of Promotors Section 1097 of the TCCC requires a limited company to have at least three individuals as promotors upon its incorporation. The Amendment Act reduces the minimum number of promotors required to just two individuals. (ii)    The Memorandum of Association While Section 1099 of the TCCC does not provide any deadline for the registration of a limited company’s Memorandum of Association, the Amendment Act requires that the company shall be incorporated within three months from the registration date of its Memorandum of Association with the DBD. In...
October 17, 2022
Taiwan IP Office Adjusts Guidelines for Parallel Filing Effective July 1st 2022, the Taiwan Intellectual Property Office has ordered some changes to the Patent Examination Guidelines.  Concerning parallel filing, there were some questions as to how the IP Office should handle a pending invention patent application if, in the meantime, the granted utility model that covers the same subject matter is invalidated.  First of all, it should be noted that filing an invention patent application and a utility model application on the same day, by the same applicant and for the same subject matter, is a commonplace and practical strategy for getting early protection of an invention.  Utility models, giving protection of the shape and structure of an article, aren’t examined substantively, so they will be granted protection within just a few months.  On the other hand, the examination of an invention application for the same subject matter will take longer.  That could take up to one year or so, and if the invention patent application is allowed, the applicant can then opt for either the allowed invention application or the already granted utility model.  If the former is chosen, the utility model rights will be extinguished.  With the new guidelines, the procedure about how to deal with parallel filings when the granted utility model is invalidated has now been decided upon.  Now, the validity of an invention patent application must remain consistent with the validity of the granted utility model.  If the utility model invalidation is appealed, the examination of the invention patent application should be suspended during that process.  The applicant does, however, have the right to...