Essay on "Intellectual Property Case"

Essay 10 pages (3389 words) Sources: 1 May 31, 2017

[EXCERPT] . . . .

Briefing for Intellectual Property Case

CASE 2-5; the M/V Saiga Case (Merits)

Case Style: Saint Vincent and Grenadines v. Guinea

Special Agreement Notification: ITLOS on 4th Dec. Issued an order that asked Guinea to release a vessel and crew on board in its custody after SVG posted a letter of credit worth $400 000.

Interim measures: A trial court in Guinea convicted the Saiga master of the crime charges against him brought before the court. The court of appeal of the country reaffirmed the conviction on 3rd of February 1998. The appeals court handed the convict a suspended six months sentence in prison plus a fine of 15 354 040 000 francs. It also ordered that the fees and expenses incurred in the case should be paid by the convict. The court ordered that the cargo be confiscated too. The cargo contained 4,941 tons of gas oil. The vessel was also required to be seized by the authorities to ensure that the fine is paid.

The memorial as submitted by St. Vincent and the Grenadines: SVG sent a notice to Guinea on 22nd Dec 1997 to the effect that it was starting arbitral proceedings before the International Tribunal for the law of the Sea in line with the convention of the UN on the Law of the Sea. Both states were parties to this treaty. A provisional measure was Issued by ITLOS with a message that called on Guinea to refrain from enforcing any measures against Saiga, the master crew, operators or owners. This is a Counter-Memorial that was sent by Guinea.

Saint Vincent and the Grenadines Response

Guinea's Rejoinder

The issue at hand: Guinea's actions, i.e. attacking the vessel M/V Saiga and crew, the subsequent arrest, detention and the seizure of gas oil from the vessel, the subsequent filing of charges against the state of St. Vincent and the Grenadines and resultant judgement against the state is in violation of the of St. Vincent and the Grenadines. It also violates the rights of the vessels that fly the flag of this state to enjoy navigation freedom and accompanying the internationally recognized lawful use of the sea's freedom of navigation.

In part, Guinea conceded that the case should be dismissed because there was no authentic connection between the 80 Saiga and SVG. They argued that the ship master had not explored and exhausted all the available remedies available locally in Guinea. They also argued that the crew and the master including other operators of the vessel were not SVG nationals. Consequently, they argued that it was not in order to expect SVG to bear the action on their behalf. It was stated that the concerned parties should have exhausted the remedies that were available as provided in article 295 of ITLOS.

Holding: The Convention on The Law of the Sea of the United Nations (UNCLOS) requires that there should be an authentic connection between a ship and the state of which it is owned but it does not give other states a Lee way to challenge the registration of the flag state. It does not require that all remedies be exhausted when it has its interests at stake.

A flag state has power and legal control over all individuals, irrespective of their origins, on board any of its flagged ships. The ship is viewed by UNCLOS as a unit. So the ship's master and crew are part of the unit.

Rules: SVG has a right to reparation for the damage that it suffered directly and indirectly through the loss of the Saiga and everyone involved.

The Reasoning: it is clearly established in the international law of the sea that any state that suffers damage because of a wrongful act by another country being in breach of the laws is entitled to reparation from the aggressive state. It further states that such reparation must as much as possible restore the victim's state of affairs as it was before such an incident.

The Facts: The Navy force of Guinea arrested the crew and the master beyond its exclusive economic demarcation. When the arrest was conducted, the registration of the vessel was registered in SVG provisionally. Guinea acted in a way that was not expected of it by international obligations to treat aliens.

CASE 3-4: Shell V. R.W. Sturge Ltd.

Style: Shell vs. RW Sturge Ltd.

The United States District Court, SD, Ohio, WD

Procedural History: An exParte temporary restraining order was Issued by the Court of Common Pleas enjoining the defendants from presenting any bank credit letters that plaintiffs had executed to support their dealings with defendants. A fourteen-day TRO extension was Issued by the Court of Common Pleas.

The defendants removed the case from this court and took it to the United States Magistrates Courts judge. A supplementary motion for a temporary injunction was entered and a motion to dismiss the case for having been taken to an improper venue.

The Judge in the magistrates' court prepared a recommendation report stating that the motion by defendants to dismiss the case on the grounds mentioned was granted. The judge also preferred offering plaintiffs motion for a preliminary injunction if the court denied defendants motion to dismiss it.

The issue was presented before the Appeals Court as a result of the report and recommendation by the judge of the Magistrates Court, the objections of the defendants, objections by the plaintiffs, and the memorandum of the plaintiffs opposing the defendant's objections. The parties suggested fact findings and conclusions based on the law in which the motion of the plaintiffs for the preliminary injunction was not merited.

The issue: Shell wanted to reverse their contracts of investment anchored in the Securities Law of Ohio. The defendants moved a motion to dismiss for a venue that was improper under the 12(b) Rule derived from the Federal Rules of Civil Procedure; based on forum selection provisos in the investment contract provided jurisdiction exclusively to the British Courts.

The appeal by the plaintiffs reasoned that the selection clauses of the forum deprived them of their rights under Ohio Securities laws. They stated that the public policy of Ohio outweighed any policies rendered through the selection process of the forum.

Holding: A selection clause for a forum in an international treaty must be enforced unless it can be shown clearly by the plaintiffs that (1) it would be unreasonable to enforce it (2) when the clause is invalidated by Issues of overreaching and fraud. The forum clauses are normally presumed to be valid since they provide for predictability and order.

The Rules: Exclusive jurisdiction shall be granted exclusive jurisdiction to settle disputes or controversies of any nature relating to the membership of the members and/or underwriting dealings and Loyd's.

Reasoning: the presumed validity of the clause for forum selection may be dispensed with in case the plaintiffs demonstrate that it will be hard to conduct trial in the contractual and that it will be gravely tough and inconvenient and that they will be deprived of their fair hearing, or show that enforcement would be in contravention of significant public policy of the state.

The reality that parties will be obliged to restructure their case differently from the litigation they were pursuing in federal courts is not a good reason to dismiss a forum selection clause.

We concur with the Bonny court that based on the international characteristics of the transactions in focus and the availability of solutions under British law that are not in contravention of the policies born of the securities laws, the forum selection of the parties and the choice of provisions in law as allowed in the law.

Facts: we concur that the plaintiffs have legal recourse that they can pursue in England

Clause 22: Permission of Arbitration of London

The plaintiffs have failed to present convincing evidence and authority that the merit review process in Ohio elicits public interest than fraud prevention and nondisclosure.

CASE 6-7 Libyan Arab Foreign Bank vs. Bankers Trust Company

Style: Libyan Arab Foreign Banks vs. Bankers Trust Company

Queens Bench Division- the commercial Court

The Procedural History: Commercial Court: Queen's Bench Division. The ruling is in favor of the Libyan Arab Bank and awards $292 million that has to be paid by the Banker's Trust Company.

Issue: Can the Banker's Trust Company obey the court order and pay the Libyan Arab Foreign Bank, money that was held back as a result of the freeze that President Ronald Reagan imposed in 1986?

Can a government block the assets controlled by a bank branch or branches in another nation?

Is the agreement on the account a contravention of the proper law the existing contract between the defendant and the plaintiff?

Holding: the managed account agreement signals to the existence of two laws that were proper, i.e. the law of New York and the English Law.

A bank's contract proper law is the law that originates from the place where the account held.

Rules: Generally, the contract between a bank and its customers… READ MORE

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