Latest Updates Archives - Page 22 of 269

Legitimising Electronic Signatures

December 28, 2022

As cross-border transactions are becoming increasingly common, businesses and individuals are turning to electronic means to save time and costs. Instead of waiting for documents to be transported by courier around the globe, the relevant parties can finalize and execute their contract in a matter of seconds, in the comfort of their own base. The steady rise of globalization, coupled with the social distancing protocol of COVID-19, is further accelerating the popularity of electronic signatures in 2020. Their growing prevalence brings forth questions about their legitimacy, effectiveness, and security. Fortunately, the technological advancement behind their conception and the maturing legal infrastructure built around electronic sign-offs are attesting to their positive values: electronic execution of contracts is a sufficient alternative to, if not a replacement of, in-person procedures. Legal Infrastructure In order for electronic signatures to be widely used, they have to be deemed legally valid under the relevant jurisdiction. As early as the late 1990s, legislative bodies around the world have come to grant electronic signatures the same legal status as handwritten signatures, encouraging businesses to adopt the paperless practice. In 2020, electronic signatures are legally recognized in over 60 countries. In Vietnam, electronic signatures have been given legal effect and enforceability since 2005. According to Article 21.1, Law on E-transactions 2005, “an [electronic] signature is established in the form of words, letters, numbers, symbols, sound, or other forms by electronic means, logically attached with or associated with a data message, which has an ability to certify the person who signs the data message and to certify the approval of such person to the content of the signed data...

The Greater China IP Updates – December 2022

December 28, 2022

Taiwan’s Judicial Yuan Announces Draft Amendment to the IP Case Adjudication Act Here are the highlights of what is likely to be the biggest overhaul of the IP Case Adjudication Act since it was implemented in 2008: The administrative remedy system for patent and trademark cases will change from the current administrative litigation system to the adversary system. If a party files an appeal with the court against a Decision rendered by the IP Office, the case will be tried in accordance with the civil procedure, and the defendant, depending on the nature of the case, may not be the IP Office, but instead may be the opposing party such as an invalidation petitioner, or the applicant of a cancellation action. Civil disputes relating to patents, software copyrights, and trade secrets will be mandatorily represented by lawyers. Unless the value of the plaintiff’s claim is low, that rule will be valid for other civil cases too. In principle, the court should discuss with the involved parties via their lawyers regarding the planning of a trial unless the case does not require legal representation. In patent litigation cases, the judge shall, in a timely and appropriate manner, disclose his or her interpretation of any disputed terms recited in the claims, ex-officio or upon the request of a party. Currently, reports drafted by court experts formally known as Technical Examination Officers (TEOs) are not disclosed to any parties. The Amendment now makes it clear that when a judge deems it necessary, he or she may disclose all or part of the content of the Reports drafted by TEOs and the parties...

You Have the Right to a Fair Trial

December 26, 2022

You have the right to a fair trial…that is if you are ever to be accused of crime. In fact your right to a fair trial is an internationally recognised human right which rarely makes for viral content (alongside other sexier declarations of human rights), but is nonetheless equally important. Ultimately, many people who are accused of crimes will be found innocent. The goal then is to have enough safeguards in place so that when all is said and done, those found to be innocent will also be found intact with (hopefully) little losses and enough pathways to return to their regular lives. Every person is presumed innocent unless and until proven guilty This is a fundamental principle behind the right to a fair trial. It is the responsibility of the state to prove that someone is guilty, not for the suspected person to prove their innocence. Being convicted of a crime has serious, sometimes devastating, consequences. Therefore, States must prove guilt to a high standard. If there is ‘reasonable doubt’, an accused person must be given the benefit of the doubt and cleared because the state’s ‘burden of proof’ has not been met. In practice there are many ways that this right is undermined. Accused people are often treated as criminals before they have had their day in court. We see this when : • Law enforcement parade arrested people through. public places so they can be photographed by the media – also known as perp walks. • Law enforcement requires accused persons to wear measures of restraint that make them appear dangerous. Coercion is wrong on so...

Can WhatsApp Messages Be Used as Evidence

December 26, 2022

With so much of our lives online, what do we do when things go awry? Do our verbal agreements over messaging platforms like whatsapp count? Generally speaking, electronic evidence is less conclusive than traditional evidence (mainly paper documents). It is more difficult to prove the integrity of electronic evidence and more challenging to document enough evidence electronically to tell the full story. Electronic devices are fast replacing ‘paper documents’ in commercial transactions all over the world (including Vietnam) Emails, video calls and messaging apps are increasingly being utilized by enterprises for information exchange, contract execution and implementation. What are some clear advantages of electronic transactions? Efficient Convenient Cost-effective What are the hidden risks? Generally, electronic evidence is less conclusive compared to traditional evidence. When things go awry, the identities of the sender and recipient, the time of sending, the receipt of goods or documents, and the authority to sign become sources of endless contention. How electronic evidence fair against transition evidence Electronic evidence Traditional evidence Can be structurally distorted when stored in computer or transmission lines. Difficult to be structurally changed. Can be modified without any trace. Changes are easier to detect. Hard to identify as it is stored digitally and encrypted. Easy to identify by viewing. Simple to duplicate Hard to duplicate. Quality of evidence depends on the quality of the technology Quality of evidence depends on its physical condition. These “hidden risks” may prove to be extremely costly to the business. Tips to manage risks in a modern world During the execution, performance and termination of a commercial contract, use electronic mails as the primary form of...

International Arbitration and the Circle of Control

November 28, 2022

A Look at the psychological benefits of arbitration and the status of arbitration in Thailand There are often many reasons cited as to why international arbitration should be the preferred method of dispute resolution for parties: it can be quicker, cheaper, the process is private, the award is final, and the parties have more autonomy over the process. Whilst some of these factors are debatable (especially in highly complex commercial cases), the fact that parties to an arbitration can have more autonomy than in traditional court litigation is usually less controversial. Party autonomy in arbitration is often a significant factor that persuades contractual parties to consider arbitration over other methods of dispute resolution. This is not surprising, as the need to have control and certainty is an innate human desire that often brings us security and peace. Our need for control and certainty There is no doubt that Covid has had a detrimental effect on the economy and many businesses. Most people would also agree that it has taken a significant toll on people’s mental health. Social distancing forced people to keep a distance and lose close contact with friends and colleagues. For some people, it meant a loss of social contact and socialising all together, due to fear of catching the virus if they stepped out of the safety of their homes. Lockdowns and school closures meant that more families were stuck at home, glued to their computers for work or online school and having to navigate the lack of privacy and personal space in their own homes. For working parents, the stress of juggling work from home, not...

Getting to know… Joe Liu

November 28, 2022

From London and The Hague, to Singapore and Hong Kong – Liu leverages on his international experience as he forges a new path as independent arbitrator 1. Can you please share with us a little of your background prior to joining the Hong Kong International Arbitration Centre (HKIAC), and what your time spent there was like? I started my career at the Singapore International Arbitration Centre. I then did two internships at the High Court of Hong Kong and the Permanent Court of Arbitration in The Hague. After completing the internships, I joined Allen & Overy (A&O)’s Hong Kong office as part of their Global Arbitration Group. During my time at A&O, I was appointed as a member of the HKIAC Rules Revision Committee which was tasked for with drafting the 2013 HKIAC Administered Arbitration Rules. With that experience, I joined the HKIAC in 2014 and began my eight years of journey at the institution. I had a hand in many aspects of HKIAC’s operations including case management supervision, rules drafting, corporate governance and business development. There was no fixed description of my role at the HKIAC and my work every day was different and interesting. I spearheaded many of the HKIAC’s initiatives and drafted some of their practice notes and guidelines. It was an invaluable opportunity to gain insights on the institution’s internal management and practice and to work with many talented people. 2. What prompted your recent move to being an independent arbitrator and how have you found the transition thus far? Can you tell us a little about your new practice? Having worked in private practice and...

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