构建一个全方位的知识产权策略

创新是企业在市场竞争中脱颖而出或屹立不倒的硬实力。一个创新的社会不但可以让本地市场充满活力,也可以使整个国家在国际市场上更具竞争力。知识产权一方面代表着企业的创新成果,另一方面也意味着企业在该竞争领域内建立了一定程度的保护屏障。习近平主席和中央政府近期也就全面加强知识产权工作作出重大部署,其中包括印发《知识产权强国建设纲要(2021-2035年)》。该纲要对中国知识产权事业未来发展蓝图进行了规划,充分彰显了中国想要建设成为知识产权强国的决心。

笔者曾在一家知名跨国企业担任知识产权(Intellectual Property, “IP”)顾问多年,愿借此平台梳理一下笔者在IP领域的实战经验并与各位同仁分享。对于涉足高科技产业的企业来说,专利与商业秘密是企业经常使用的保护研发成果的两种方法,保护的都是以技术为背景的改进或发明。

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Duane Morris & Selvam LLP acts on Platinum Equity’s US$306m Sale of Singapore-based Electronics Manufacturer PCI Limited to Celestica Inc.

SINGAPORE, 22 September 2021 – Duane Morris & Selvam LLP (DMS) acted as international counsel to Platinum Equity on the sale of PCI Limited (“PCI”) at US$306m to Celestica Inc. The sale is expected to close in the fourth quarter of 2021.

Founded in 1995 by Tom Gores, Platinum Equity is a global investment firm with more than $25 billion of assets under management and a portfolio of approximately 50 operating companies that serve customers around the world. The firm is currently investing from Platinum Equity Capital Partners V, a $10 billion global buyout fund, and Platinum Equity Small Cap Fund, a $1.5 billion buyout fund focused on investment opportunities in the lower middle market. The company acquired PCI in April 2019 in a public-to-private transaction.

“I’m delighted to have worked on this transaction with my team who has deep experience in cross-border transactions of this scale. We’re especially pleased to be involved in this transaction as PCI Ltd, a Singapore-based company, under Platinum Equity’s ownership, had previously won the contract to manufacture wearable contact tracing devices as part of the Singapore government’s efforts to control the spread of Covid-19”, said Leon Yee, Chairman of Duane Morris & Selvam LLP.

PCI is a Singapore-based design, engineering and manufacturing solutions provider with six manufacturing and design facilities across Asia, with diverse end-markets that include the automotive, industrial equipment, commercial/lifestyle, and medical segments.

The PCI sale will mark Platinum Equity’s second divestiture in Singapore in the past year, having sold Singapore-based Compart Systems to Shanghai Wayne Enterprises in December 2020.

Duane Morris & Selvam’s team advising on the transaction comprises Leon Yee, Chairman of Duane Morris & Selvam LLP and Directors Ramiro Rodriguez and Suilyn Yip.

About Duane Morris & Selvam

Duane Morris & Selvam LLP is the joint law venture between Duane Morris LLP and Selvam LLC, with its headquarters in Singapore. By way of its global platform and extensive range of legal services, the firm helps companies conduct business in and out of Asia, the United States, Latin America, the United Kingdom and beyond. In addition to the excellent skills of its lawyers, clients benefit from the cultural fluency and key relationships that the firm has developed over many years of practising law throughout the region. The firm has a presence in the key markets of Southeast Asia, including Singapore, Hanoi, Ho Chi Minh City as well as offices in Shanghai and Yangon. Supporting these regional offices, the firm operates a series of country desks for India, Indonesia, Korea and Japan, as well as an alliance in Sri Lanka. It is regularly ranked among the region’s leading law firms by Chambers & Partners, The Legal 500 and IFLR1000.

Negotiations have concluded for the “Pacific Alliance – Singapore Free Trade Agreement” (PASFTA).

On July 22, 2021, Mr. Gan Kim Yong, Singapore’s Minister of Trade and Industry, together with his counterparts from the members states of the Pacific Alliance – Mexico, Chile, Colombia, and Peru, announced the conclusion of negotiations of the Pacific Alliance – Singapore Free Trade Agreement (PASFTA).

Singapore will become the first Asian-Pacific associate state of the Pacific Alliance (“PA” or “Alliance”) once the pact is signed, which is expected to happen by the end of the year. This is an important milestone in the economic integration between the PA region and Asia-Pacific and is a crucial development for the necessary economic reactivation of the two regions.

The Ministers of Trade agreed that the PASFTA represents an interest in the economic integration of the regions and the improvement of the commercial relationship, attracting investments and expanding access to goods and services. In particular, The PASFTA will enhance trade and deepen cooperation in areas like the digital economy, energy sector, technology, urban solutions, customs, maritime services, and infrastructure.

Latin American and Singapore businesses should take note of this development and where possible, take advantage of the significant trade opportunities and economic growth that this trade agreement will generate.

The Pacific Alliance: main objectives and member Continue reading “Negotiations have concluded for the “Pacific Alliance – Singapore Free Trade Agreement” (PASFTA).”

Is Knowledge King?

Knowledge is king”, so the adage goes.

What is the relationship between ‘knowledge’ and merger and acquisition (“M&A”) transactions? In M&A transactions, representations and warranties are made by the seller with respect to the target company. What does knowledge have to do with this? The answer is simple: risk allocation.

Representations and warranties not only serve to provide information to the buyer, but more crucially play the role of allocating risk as between buyer and seller. A seller will attempt to keep its representations and warranties as narrowly drawn as possible. A buyer, at the other end of the spectrum, will seek to have the seller’s representations and warranties pitched broadly.

During negotiations, one detail that lawyers lovingly quibble over are the ‘qualifiers’ to the representations and warranties. The categories of qualifiers are aplenty. The focus here will be on the introduction of ‘knowledge qualifiers’.

Assuming the parties have crossed the hurdle and agree to use a knowledge qualifier, that is not the end of the matter. Parties will still need to discuss the following: Continue reading “Is Knowledge King?”

헤지를 해야할지 말아야할지?

석유 가스 산업에는 헤징 계약이 잘 되어 있습니다. 이것은 끊임없이 변동하는 유가에 대한 위험을 줄이기 위해 사용되는 일반적인 위험 관리 조치입니다.  본질적으로, 헤징 계약에 따르면 기업들은 상품 교환(commodity swap)이나 옵션을 통해 고정 가격을 책정할 수 있습니다. 헤징 계약은 이 산업에 가장 기본적인 특징이며 대부분의 거래자들에게 당연한 것입니다. 그러나 이 당연함으로 인해 Apex Energy International Pte Ltd v Wanxiang Resources (Singapore) Pte Ltd [2020] SGHC 138이 고등법원과 항소법원에 제기 되었습니다. 싱가포르 법원은 매매계약 위반에 따른 헤징 약정이 Apex Eneergy의 합리적인 완화 조치인지 판단해야 했었고, 저희는 그들을 위해 헤징 약정이 합리적이라는 것을 증명하였습니다.

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Duane Morris & Selvam acts on Union Bank’s INR 14.5 billion (US$200 million) QIP

SINGAPORE, 8 June 2021 – Duane Morris & Selvam LLP acted as international legal counsel to Elara Capital (India) Private Limited, IIFL Securities Limited, Motilal Oswal Investment Advisors Limited, and YES Securities (India) Limited on the recent sale of approximately INR 14.5 billion (US$200 million) of equity shares in Union Bank of India in a QIP, including a concurrent U.S. private.

Union Bank, incorporated in 1919, is the fourth largest public sector bank in India as at December 31, 2020 in terms of branch network. As at April 30, 2021, Union Bank had more than 120 million customers, which were served by 9,312 branches and 12,789 automated teller machines.

Duane Morris & Selvam’s team was led by Jamie Benson, the head of the firm’s US capital markets and India practices, and also included Hope Krebs, Ken Tan, Jacob Low and Yeo Ming Ze.

L&L Partners acted as Indian counsel to Union Bank and Crawford Bayley & Co. acted as Indian counsel to the book running lead managers.

About Duane Morris & Selvam

Duane Morris & Selvam LLP is the joint law venture between Duane Morris LLP and Selvam LLC, with its headquarters in Singapore. By way of its global platform and extensive range of legal services, the firm helps companies conduct business in and out of Asia, the United States, Latin America, the United Kingdom and beyond. In addition to the excellent skills of its lawyers, clients benefit from the cultural fluency and key relationships that the firm has developed over many years of practising law throughout the region. The firm has a presence in the key markets of Southeast Asia, including Singapore, Hanoi, Ho Chi Minh City as well as offices in Shanghai and Yangon. Supporting these regional offices, the firm operates a series of country desks for India, Indonesia, Korea and Japan, as well as an alliance in Sri Lanka. It is regularly ranked among the region’s leading law firms by Chambers & Partners, The Legal 500 and IFLR1000.

양식 싸움 The Battle of the Forms

무역 금융의 세계는 결코 간단하지 않습니다. 여러 기관, 경쟁 청구, 상계 (set-offs), 임무, 채무와 많은 관계 당사자들이 이루고 있습니다. 이 복잡한 환경을 탐색하는 것은 굉장히 어렵고, 수많은 법적 문제와 불확실성을 야기합니다.

CIMB Bank Bhd v World Fuel Services Singapore Pte Ltd [2021] SGCA 19의 사례에서 이 복잡함이 명백하게 드러납니다. 이 특정 사례에서는 항소법원이 고등법원과 완전히 반대되는 결론에 도달했습니다.  이 사례는 복잡한 다자간 무역금융계약의 어려움(downfall)을 강조하며, 법원의 계약서 해석에 대한 지침을 제공합니다. 법원은 문서의 진위 여부, 진위 입증 방식에 대한 요점을 고려하지만, 이번 기고문은 문제의 핵심인 무역금융 계약의 싸움에 초점을 맞출 것입니다.

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The Battle of the Forms

The world of trade finance is never straightforward. Multiple facilities, competing claims, set-offs, assignments, debentures and multiple parties are, to the say the least, what make the backbone of trade finance.  Navigating this complex landscape is tough, and raises a plethora of legal issues and uncertainties.

This complex landscape is evident in the case of CIMB Bank Bhd v World Fuel Services Singapore Pte Ltd [2021] SGCA 19, where the Court of Appeal considered and analysed the same issues of diametrically opposite competing contracts, and arrived at a completely opposite conclusion than that of the High Court.

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Duane Morris & Selvam acts on Affle’s INR 6 billion (US$82 million) QIP

SINGAPORE, 25 May 2021 – Duane Morris & Selvam LLP acted as international legal counsel to Axis Capital, Nomura and UBS, in their role as the book running lead managers, on the sale of INR 6 billion (US$82 million) of equity shares in Affle (India) Limited in a qualified institutions placement, including concurrent private placements outside India.

Affle is a global technology company with a proprietary consumer intelligence platform that delivers consumer engagement, acquisitions and transactions through mobile advertising, as well as platform aims to enhance returns on marketing investment through contextual mobile ads and also by reducing digital ad fraud.

The Duane Morris & Selvam team was led by Jamie Benson, the head of the firm’s US capital markets and India practices, and also included Zabrina Hamid, Wang Bei, Justin Santarosa, Jacob Low and Yeo Ming Ze.

Induslaw acted as Indian counsel to Affle and J. Sagar Associates acted as Indian counsel to Axis Capital, Nomura and UBS.

About Duane Morris & Selvam

Duane Morris & Selvam LLP is the joint law venture between Duane Morris LLP and Selvam LLC, with its headquarters in Singapore. By way of its global platform and extensive range of legal services, the firm helps companies conduct business in and out of Asia, the United States, Latin America, the United Kingdom and beyond. In addition to the excellent skills of its lawyers, clients benefit from the cultural fluency and key relationships that the firm has developed over many years of practising law throughout the region. The firm has a presence in the key markets of Southeast Asia, including Singapore, Hanoi, Ho Chi Minh City as well as offices in Shanghai and Yangon. Supporting these regional offices, the firm operates a series of country desks for India, Indonesia, Korea and Japan, as well as an alliance in Sri Lanka. It is regularly ranked among the region’s leading law firms by Chambers & Partners, The Legal 500 and IFLR1000.

To Hedge or not to Hedge? That is the (mitigatory) question.

Hedging contracts are well established in the Oil & Gas industry.  It is a common risk management measure used to reduce a party’s exposure to the constantly fluctuating oil prices.  Essentially, under a hedging contract, companies can establish their prices at a fixed price through a commodity swap or option. Hedging contracts are second nature to the industry, and most traders would not give a second thought as to whether such arrangements are reasonable.  However, it was this very issue that was put forth before both the High Court and the Court of Appeal in Apex Energy International Pte Ltd v Wanxiang Resources (Singapore) Pte Ltd [2020] SGHC 138.  The Singapore Courts had to determine whether, following a breach of contract of sale, whether a hedging arrangement was a reasonable mitigation in the quantification of the aggrieved parties losses.  We successfully acted for Apex Energy in proving that a hedging arrangement is a reasonable mitigation measure.

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