sabahlaw - by CK

sabahlaw

by CK

Joint Venture Agreement (JVA)
I am compel to write this piece in order that landowners deciding to go into JVA will have a better understanding of the risk that they will face with a lopsided agreement.
1. First the issue here is that the Developer will almost get a Power of Attorney as well, read this document very carefully as it is often unclear and inconsistent with the JVA, for example in the PA it provides the donor (landowners) to give up every conceivable power to the Developer (donee) to do what he wishes with the land BUT in the JVA, it also says the Developer has to seek mutual consent to with the landowners. (Preference – change mutual consent to consent from landowner in JVA)
2. The JVA is peppered with things that the Landowner must do but invariably Landowners are not aware of the duties – for example to approve the Developer Plans, Building Plans, appoint Consultant, allotment of units. It seems that the Developer do all this on-behalf or with ‘mutual consent’ of the landowners (by asking for their IC or as PA holder). Landowners must take an active role as all these must be done with your consent, have all consent documented and make sure that meetings are held and references clearly. It is often the case where the Developer will start selling the units as soon as the Building Plan is approved. Make sure you get your LOTs before approving the Building Plan and not a minute later. If you cannot get your preferred LOTS don’t sign approval to Building Plan, once is signed you have no recourse other than get compensation.
3. Did I say compensation ? Opps, JVA often excludes this as Developer is the last person to give you any compensation because he is a businessman. The JVA will often state a specific performance clause, ie you can only ask the Developer to do things that he ‘forgot’ to do and not for money, so if he forgets to give you a LOT then you can ask him (but make sure he did not sale them first hence is important to hold on to the building plan approval until you get in black and white), otherwise you will end up with the leftovers.
4. “More or Less” – this is a term they use in JVA to describe the land they will want to use for the development. Under normal circumstances this term is reserved for land that is unsurveyed however, I see that they (obviously lawyers) adopted this in the JVA or contract. The legal parley for this is that one cannot ask for compensation if it is more or less above the actual, say the final development is more than 10% then the landowner is stuck, suggest to include a limitation (but in no event no more than 5%). Or get rid of this term entirely as it is outdated with modern GPS which can measure the development land accurately. More or less is defined to be ‘slightly different’ in BlackLaw, this means it cannot be a huge difference, I mean if you ask for 1 acs, then it cannot be 1.20 acs. In my view the max is 1.1 or 10% but this is untested in Court.
5. Get everything in black or white, if Developer ask for something say your IC, then you need to get the reason in black and white, in case they use it for something else without your approval.
6. Do a checklist of the things ‘mutual consent’ is needed. Do a timeline to remind yourself to get the things done mutually. (If you can, change the mutual consent to one that consent is needed from you at all times). Appoint yourself as project manager as your interest and rights are at stake.
7. Get a lawyer to review the JVA. Get Developer to pay for this. Inform the lawyer that he is working for you but paid by Developer so his duty is to you, sue him if he fails to do his duty, keep notes of what the lawyer tells you or better still ask him for a ’legal opinion’. This may help as it is in Black and White but maybe couched in legal terms that will protect his interest as well.
8. My view is that a JVA must be fair and this means both parties are well-informed of the terms and their responsibilities. But in most cases, this is not the case until is too late. So I hope this little piece here will help others and not ended up like my client has, in a difficult spot.

English or Malay text of a Law shall prevail when there is a conflict or discrepancy ?

Interpretation Act says

English text to prevail

117. In case of any conflict or discrepancy between the English
text of a written law and any translation thereof, the English text
shall prevail.

So I am a bit puzzle why the fuzz about the issue brought up about the word “parent” and in the malay context it says “ibu atau bapa (mother or father)” -

I refer to Section 107 (the old Section 95) in the Administration of the Religion of Islam (Federal Territories) Bill 2013, which relates to the conversion of minors.

This provision became controversial in 1993 – although the English version
states a non-Muslim below 18 years of age may convert to Islam if “his
parent or guardian consents to his conversion”, the Malay version of Section
95 amended “ibubapa (parents)” to “ibu atau bapa (mother or father)”.

Rofendy Rauf says::  If I’m not mistake, Sections 66-129 of the Interpretation Acts were repealed wef 18 May 1967. See section 65 of the Interpretation Acts.

Chris Kwan responded :: Section 65. (1) PART II of this Act [Interpretation and General Clauses Ordinance 1948] is repealed with effect from 18 May 1967 in sofar as it is a federal law.
(2) Notwithstanding subsection (1), PART II of this Act thereby repealed shall continue to apply to any written law to which it applied immediately before 18 May 1967 and to subsidiary legislation made after that date under such a written law. You are right so we do have different Interpretation before and after 18 May 1967 with federal law. But this also leaves a big gap for federal laws after 18 May 1967 which means there is nothing to say Malay text prevails either ?

In Sabah, English prevails see 57 http://www.lawnet.sabah.gov.my/Lawnet/SabahLaws/StateLaws/viewdoc.aspx?document=InterpretationAndGeneralClausesEnactment1963.pdf

Rofendy Rauf says :: My opinion is that The Administration of the Religion of Islam (FT) Act is not extended to Sabah as we in Sabah have our own Enactment pertaining to the Administration of Islamic Religion. Therefore, in construing the said Bill which is extended to FT only, the relevant statutes which are applicable to FT shall be applied.
July 2 at 4:44pm ·

Chris Kwan says :: I understand, I was referring to the overall situation and its potential creeping effect onto other jurisdictions (potentially Sabah). Knowing our fed govt, it is likely they are using this as a test to see how far they can go given the next election is still a long way. As I mentioned to my colleague the other day, these are simply matters that are hold dearly to Sabahans but are slowly being eroded either by the “tidak apa attitude” or blind indifference.
July 2 at 5:16pm

Rofendy Rauf says: As for the federal laws enacted after 18 may 1967 i am of the view that based on the national language act, the malay version is deemed to be the authoritative version.
July 2 at 10:03pm via mobile

Chris Kwan says :: I believe the National Langauge Act 63/67 is only applicable to Sabah as per Section

1 (2) This Act shall come into force in the States of Sabah and
Sarawak on such dates as the respective State Authorities may by
enactments of the Legislatures of the respective States appoint
and different dates may be appointed for the coming into force of
different provisions of this Act in those States.

The closest Enactment is the Sabah’s National Language (Application) Enactment,
1973. This enactment did not confirm Malay is the authoritative text in law. It is limited to “An Enactment to authorise the extension of the provisions of the National Language Act, 1967, to restrict the use of the English language for official purposes and to provide for
matters incidental thereto”.

It also says:

2. The extension of any Act of Parliament terminating or restricting the use of the English
language for any of the purposes mentioned in Clause (2) of Article 161 of the Federal
Constitution is hereby approved.

For completeness, clause (2) of Art 161 (FC) says

(2) Clause (1) applies—
(a) to the use of the english language in either house of
parliament by a member for or from the State of Sabah
or Sarawak; and
(b) to the use of the english language for proceedings in the
high Court in Sabah and Sarawak or in a subordinate
court in the State of Sabah or Sarawak, or for such
proceedings in the Federal Court or the Court of Appeal
as are mentioned in Clause (4); and
(c) to the use of the english language in the State of Sabah
or Sarawak in the Legislative Assembly or for other
official purposes (including the official purposes of the
Federal Government).

But back to our scenario, although the National Language Act says Malay is authoritative (Section 6), this is not within the scope of FC Art 161 (2) and hence Sabah’s National Language (Application) Enactment is of no assistance. Absent of this, as far as Federal Law applicable in Sabah or applied in Sabah, I believe the jury is still out. I am minded that Sabah has conceded many of its laws to Federal. It would also cause confusion as the language of proceedings in Sabah is still English but when it comes to authoritative text is Malay ?

There is also a side point, the National Language Act is applicable in West Malaysia while Labuan (FT) is not anywhere close to West Malaysia at all (geographical). At the time this law was made, obviously Labuan is still part of Sabah so I am unsure whether reference to Labuan (FT) includes West Malaysia.

Anyone else who can shed light is most welcome to comment.

CK

http://www.jmripl.com/Publications/Vol4/Issue1/ronspies.pdf

It basically says given the high litigation costs there is no reason for small inventor to litigate.

There was a number of lectures/series at Stanford, goto:

Pretty interesting stuff as compared to reading a dry text or case.

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1056&context=yjolt

Its conclusion can be summarised below in Table 1

TABLE 1. PATENT TROLL-ERA HANDLING OF INDIVIDUAL INVENTORS

>>>>>>>>>>>>>>>>Rhetoric                         Substance
Legislative                              Positive                           Mixed
Administrative                     Positive                            Positive
Judicial                                    Non-existent                  Negative

Some of you may be aware that I am also a serial inventor with at least 8 US Patents. Actually I filed more than that number and was awarded more than 8 but there are some that I could not finance anymore and have to be abandoned. It is a hard work, costs a lot of money and emotional toll (ie USPTO examiners usually take longer time when dealing with software related invention). I remember receiving a chuck of prior arts as thick as the telephone book and the examiner merely asserts without more. One of my patent application (from 1999) is still pending, it was approved in part by the Board of Appeal but somehow the examiner (only he knows best) decided that I have abandoned it. I asked him why and he mumbled that he thinks there was no independent claims ? I said clearly there was. And now it has to go back to the USPTO for another appeal to the Director for wrongly abandonment by USPTO. And now that my portfolio of ideas is almost in fruition, I am faced by the prospect of being labelled as a troll simply because I want to assert a license from those who may be infringing. After more than 13 years and filing many applications, and more..who will want to think and solve problems anymore ? Only the big corporations now (Apple has many patents and the same with Samsung), so if you think small inventors (trolls) are bad, you have not seen how the big corporations deal with you in Court. But anyway this is my issue and I have to bear with it. Only those who have gone through the need to file a patent, test your ideas (in the late 90s, one really need to code first and try to see if it works before penning them), there was little reference to look at. One actually works mostly on your own and even lawyers are not helpful (other than telling you that they are not sure then).

I tried to find this Agreement and so far the only place where it could be found is at

http://treaties.un.org/doc/Publication/UNTS/Volume%20750/volume-750-I-10760-English.pdf

why is this important document in its entirety be read should be read ? try this, u will find the original Sabah State Constitution and various issues – including one about oil and mineral royalty that was due to Sabah.

Clearly the agreement then was more positive, for example – state religion was excluded but somehow, the Sabah Government (under Mustapa) inserted a religion clause into the State Constitution in Sept 1973 (now Art 5A).

Arising from the Malaysian Agreement, the British made their own Malaysia Act to facilitate above agreement (mainly on its own obligation).

http://www.legislation.gov.uk/ukpga/1963/35/pdfs/ukpga_19630035_en.pdf

Happy reading, I have uploaded the same copy here. (about 4 MB)

From the Malaysian side, after signing the Agreement, various insertion was done in the FC to “accommodate” the Federation in the FC. The Constitutions as annexed in the Agreement were adopted but as soon as this happened various amendments were committed by the very people who agreed to them. You can check the dates of amendments and surely why this was done, and why we complaint that the Malayan Government did not stand by on the Agreement not longer hold water as Sabahans, Sarawakians and Singaporeans were all in breach of the Agreement by various degrees, Singapore was booted out.

Question is did the Malayan government selectively inserted clauses into FC ? Need someone brave and tireless to check every one of those amendments. And if so what is the effect of this Malaysia Act ? As I mentioned only the UK had ratified this in Parliament, mainly for its own sake.

For those who are interested in the Report of the Commission of Inquiry North Borneo & Sarawak & IGC 1962 (ie prelude to the Malaysia Agreement), click here (about 6MB). More pertinent is the illusive 20 points which are found in Chapter 4 Recommendation which expands and reiterate the views of the Commission and detractors.  It requires careful reading. I am minded where the Sabah Authority at that time expressed the reasons for independence ie threat of communism and modern view to decolonization…which unfortunately sets the wheel in motion into federation without equals hence the need for “special protection”.

History tells a promise made, it is up to us to ensure such promise is kept.

1. Know the language – at least try to familiarize yourself
2. Know the history and politics – go to the National Museum (first political assassination in 1998)
3. Know your staff – I spent one week as ‘consultant’ before assuming my post
4. Communicate with your staff as often as you can to meet their expectation
5. Read all the contracts (have them translated into english). Make sure ALL future contracts are in english. Do not provide advance payment – if you must then MAX 20%. If the counterparty needs advance payment then find another one. Setup a competitive procurement environment and READ the contracts carefully and when there is conflict, the english version to prevail.
6. Spend money on translators – they are hard to come and you need them unless you are fluent in Mongolian.
7. Labour contracts follow the soviet system – one year and roll-over if there is no notice. If you want to terminate someone without being litigated – just mark on your calendar the expiry date of their contract. Notice must be given 1 month ahead according to law. You can’t terminate a pregnant staff or female with a child of less than 3 years of age.
8. Average wage in Mongolia for professionals around USD 1000 (don’t spoil the market)
9. Make sure everything is in writing, including executive order to do something or company’s rules.
10. Believe in the Court System, although I have been advised otherwise. Lawyers are extremely expensive and I am unsure how helpful they are. They are not trained in our common law system and in my opinion lack “strategy” other than what the law book says.
11. Make sure there are no issue with working visas. I had immigration knocking on my door and they can unpleasant.
12. Becareful of disgruntled employees and when dealing with local administration. Do NOT over promise. If you must then Vodka is the best currency.
13. Mongolia is well known for alcohol, cigarettes and meat dishes (including delicate parts of animals such as horse, lamb, cow etc which is consider a delicacy). So you will expect smoking in restaurants, beer or wine to water and meat dishes (even if you order vegetarian it still has meat inside). Most ex-pats go to Casa-Blanca or Irish pubs for western type meals.
14. It is very difficult to get public taxis in UB, you either have your own driver or get into private taxis like most mongolians.
15. Traffic is a BIG problem so you need to leave home around 7.30 am. I used to stay at JapanTown (about USD 1000 per month) which is about 4 Kms from Monnis Tower where I worked. (Note the elevators at Monnis Tower are the worst so expect long wait). Mongolians work from 9-6 pm but I have so much work that I hardly had time to go home to sleep even on weekends.
16. Mongolians like to accumulate their holiday so they can go off to their summer house, so expect empty offices in summer especially during the Na-dam festival (3 days in second week of July).
17. When hiring males, make sure they are sober type. Unfortunately, Mongolian’s love affair with Vodka is still prevalent. To avoid issue install GPS in company’s vehicles.
18. If you are a signatory, get yourself a STAMP as you will be signing a lot of documents. Everything goes to the TOP for signing, even petty cash so bear with this responsibility.
19. There are many places of interest at night which you must know – String or MarcoPolo. Mongolia girls are very pretty and can drink.
20. I have not been mugged before but have heard stories from others being punched by drunkards, avoid late nights and rowdy places (where there are mainly locals).
21. Mongolians prefer Westerners over Chinese so having a Chinese sounding name may not be an advantage.
22. And most importantly, enjoy yourself while in Mongolia and try to get some time away from the capital as it is the second worst air polluted city in the world due to burning of coal during winter. Summer is the best as you will have sunlight until 9 pm.

Got this from a friend who got it from some unknown person, pretty funny and serious at the same time but more pertinent to our Sabah situation.

Know where to cross the border…

If You Cross The North Korean Border Illegally
You get 12 years Hard Labour.

If You Cross The Iranian Border Illegally
You Are Detained as a spy
 
If You Cross The Afghan Border Illegally
You Get Shot.
 
If You Cross The Saudi Arabian Border Illegally
You Will Be Jailed.
 
If You Cross The Chinese Border Illegally
You May Never Be Heard Again.
 
If You Cross The Venezuelan Border Illegally
You Will Be Branded A Spy And Your Fate Will Be Sealed.
 
If You Cross The Cuban Border Illegally
You Will Be Thrown Into Political Prison To Rot.
 
If You Enter Britain Illegally
You Will be Arrested, Prosecuted And Sent To Prison And Deported
 
If You Are An Indonesian AND ILLEGALLY CROSS THE MALAYSIAN BORDER (particularly on the State of Sabah)

YOU GET:
 
MyPR (Permanent Residence / Pemastautin Tetap)
A Driving License,
Voting Rights
Job Reservation,
Special Privilege to be Consider as Bumiputra,  [prince of the soil  ]
 

Credit Cards,

Subsidized Rent Or A Loan To Buy A House,

Free Education,

Free Health Care,

and if you are a clever dickie, you can be a Menteri Besar  [chief minister]  or even Prime Minister!

Oh Malaysia , what a great country ….. unless you are not a Bumiputra or Indonesian.

The new fees forecasted by USPTO will certainly lighten a lot of wallets but I note that the rules also provide for a MICRO entity (in addition to small). See below

Sec. 123. Micro entity defined

`(a) In General- For purposes of this title, the term `micro entity’ means an applicant who makes a certification that the applicant–
`(1) qualifies as a small entity, as defined in regulations issued by the Director;
`(2) has not been named as an inventor on more than 4 previously filed patent applications, other than applications filed in another country, provisional applications under section 111(b), or international applications filed under the treaty defined in section 351(a) for which the basic national fee under section 41(a) was not paid;
`(3) did not, in the calendar year preceding the calendar year in which the applicable fee is being paid, have a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986, exceeding 3 times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census; and
`(4) has not assigned, granted, or conveyed, and is not under an obligation by contract or law to assign, grant, or convey, a license or other ownership interest in the application concerned to an entity that, in the calendar year preceding the calendar year in which the applicable fee is being paid, had a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986, exceeding 3 times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census.
`(b) Applications Resulting From Prior Employment- An applicant is not considered to be named on a previously filed application for purposes of subsection (a)(2) if the applicant has assigned, or is under an obligation by contract or law to assign, all ownership rights in the application as the result of the applicant’s previous employment.
`(c) Foreign Currency Exchange Rate- If an applicant’s or entity’s gross income in the preceding calendar year is not in United States dollars, the average currency exchange rate, as reported by the Internal Revenue Service, during that calendar year shall be used to determine whether the applicant’s or entity’s gross income exceeds the threshold specified in paragraphs (3) or (4) of subsection (a).
`(d) Institutions of Higher Education- For purposes of this section, a micro entity shall include an applicant who certifies that–
`(1) the applicant’s employer, from which the applicant obtains the majority of the applicant’s income, is an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)); or
`(2) the applicant has assigned, granted, conveyed, or is under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular applications to such an institution of higher education.
`(e) Director’s Authority- In addition to the limits imposed by this section, the Director may, in the Director’s discretion, impose income limits, annual filing limits, or other limits on who may qualify as a micro entity pursuant to this section if the Director determines that such additional limits are reasonably necessary to avoid an undue impact on other patent applicants or owners or are otherwise reasonably necessary and appropriate. At least 3 months before any limits proposed to be imposed pursuant to this subsection take effect, the Director shall inform the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate of any such proposed limits.’.
(2) CONFORMING AMENDMENT- Chapter 11 of title 35, United States Code, is amended by adding at the end the following new item:
`123. Micro entity defined.’.

(Complete Judgment at http://www.austlii.edu.au/au/cases/cth/FCA/2012/34.html)
This is an eye-opener for those looking to create the next ‘near live broadcasting’ or just about any type of digital recording. You will need to design a system where the USER is the principal actor to record and to view the ‘copyright’ material. In this case the copyright material is a FREE TV to air broadcast. You will also have to ensure that the user is using this for his own personal and private consumption. Apparently, Australia’s law provides Section 111 of the Copyright Act
“111 Recording broadcasts for replaying at more convenient time

(1) This section applies if a person makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made.

Note: Subsection 10 (1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.

Making the film or recording does not infringe copyright

(2) The making of the film or recording does not infringe copyright in the broadcast or in any work or other subject-matter included in the broadcast.

Note: Even though the making of the film or recording does not infringe that copyright, that copyright may be infringed if a copy of the film or recording is made.

Dealing with embodiment of film or recording

(3) Subsection (2) is taken never to have applied if an article or thing embodying the film or recording is:

(a) sold; or
(b) let for hire; or
(c) by way of trade offered or exposed for sale or hire; or
(d) distributed for the purpose of trade or otherwise; or
(e) used for causing the film or recording to be seen or heard in public; or
(f) used for broadcasting the film or recording.

Note: If the article or thing embodying the film or recording is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the article or thing but also by the dealing with the article or thing.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the article or thing by the lender to a member of the lender’s family or household for the member’s private and domestic use.” (bold emphasis added)

In Malaysia, the protection is much wider as long as it is for private and personal use and made by the person himself.

Section 13. Nature of copyright in literary, musical or artistic works, films and sound recordings.

(1) Copyright in a literary, musical or artistic work, a film, a sound recording or a derivative work shall be the exclusive right to control in Malaysia -

(a) the reproduction in any material form;

(aa) the communication to the public;

(b) the performance, showing or playing to the public;

(c) [Deleted by Act A994:s.4];

(d) [Deleted by Act A994:s.4];

(e) the distribution of copies to the public by sale or other transfer of ownership; and

(f) the commercial rental to the public,

of the whole work or a substantial part thereof, either in its original or derivative form provided that, without prejudice to paragraph (e) , the exclusive right to control the distribution of copies refer only to the act of putting into circulation copies not previously put into circulation in Malaysia and not to any subsequent distribution of those copies or any subsequent importation of those copies into Malaysia;

(2) Notwithstanding subsection (1), the right of control under that subsection does not include the right to control -

………………

(gg) the making of a sound recording of a broadcast, or a literary, dramatic or musical work, sound recording or a film included in the broadcast insofar as it consists of sounds if such sound recording of a broadcast is for the private and domestic use of the person by whom the sound recording is made;

(ggg) the making of a film of a broadcast, or a literary, artistic, dramatic or musical work or a film included in the broadcast insofar as it consists of visual images if such making of a film of the broadcast is for the private and domestic use of the person by whom the film is made;

………………….

( Also see section 41) -
(1) Any person who during the subsistence of copyright in a work or performers’ right -

(d) possesses, otherwise than for his private and domestic use, any infringing copy;

shall, unless he is able to prove that he had acted in good faith and had no reasonable grounds for supposing that copyright or performers’ right would or might thereby be infringed, be guilty of an offence and shall on conviction be liable –

(i) in the case of an offence under paragraphs (a) to (f), to a fine of not less than two thousand ringgit and not more than twenty thousand ringgit for each infringing copy, or to imprisonment for a term not exceeding five years or to both and for any subsequent offence, to a fine of not less than four thousand ringgit and not more than forty thousand ringgit for each infringing copy or to imprisonment for a term not exceeding ten years or to both;

(2) For the purposes of paragraphs (a) to (f) of subsection (1), any person who has in his possession, custody or control three or more infringing copies of a work or recording in the same form shall, unless the contrary is proved, be presumed to be in possession of or to import such copies otherwise than for private or domestic use.

Therefore what can a competitor do ? The bottom line is nothing unless the competitor has a patent to stop the recording or transmission means. There is actually a patent US 7,688,683 (System and method of creating digital recordings of live performances) by Griner, et al. Fortunately for Optus, there was no similar filing in Australia or Malaysia.

In my opinion, the competitor would be smart to provide the same (free or bundle it with another service) and while the clients (at Optus) do not mind 90 secs delay, the competitor should aggressively advertise on this point. Consider what happened to Netscape when M$ muscled into the its business and you can get my drift. An appeal would be a long and uncertain process given that the rest of the world is not at variance with Australia and the many case laws would be persuasive. Even if this decision is reversed, for example to get around this all Optus has to do is to put its recorders in a copyright friendly nation favoring private usage. Obviously as this case has set a high mark, there will be more services to come and allowing each individual user to record and play at their convenience.