CTL 4 - Procedural Issues PDF

Audio file ========== [Your Recording 68.wavTranscript00:00:06 Speaker 1Hi there this is Session 4 which will touch on certain procedural issues in civil law jurisdictions.00:00:15 Speaker 1We now turn first to Indonesia and the basis of the courts jurisdiction.00:00:21 Speaker 1There are two main...

Audio file ========== [Your Recording 68.wavTranscript00:00:06 Speaker 1Hi there this is Session 4 which will touch on certain procedural issues in civil law jurisdictions.00:00:15 Speaker 1We now turn first to Indonesia and the basis of the courts jurisdiction.00:00:21 Speaker 1There are two main bases of jurisdiction 1 is called absolute competence or absolute jurisdiction, and the other is called relative competence or relative jurisdiction.00:00:34 Speaker 1Absolute competence refers to a court\'s authority to decide on a particular type of case based on the subject matter.00:00:44 Speaker 1This is sometimes called the subject matter jurisdiction and it is determined by the nature of the legal issue or the type of relief sought. For example, a Criminal Court has absolute competence to hear criminal cases, while a family court has absolute competence.00:01:04 Speaker 1To hear cases related to family matters, such as annulment of marriages, divorce or child custody.00:01:13 Speaker 1The Commercial Court, on the other hand, manages commercial cases.00:01:18 Speaker 1By contrast, relative competence or jurisdiction refers to the appropriate court to hear a case based on factors such as the geographical location of the parties or the place where a contract was signed, or a thought committed.00:01:38 Speaker 1How does this work in practice?00:01:44 Speaker 1The relevant book on procedural issues known as HHIR or has an in LASK reglement provides in Article 118, subparagraph one that.00:01:58 Speaker 1Several suits, which in the first instance fall under the jurisdiction of the District Court, shall be brought by a rate of demand signed by the plaintiff or by his representative to the President of the District Court, in whose jurisdiction the defendant has his domicile or.00:02:18 Speaker 1If his domicile is not known, his actual residence, the HR is the primary code of Civil Procedure in Indonesia and it provides for rules for initiation of lawsuits and presentation of evidence.00:02:34 Speaker 1It is closest closely analogous.00:02:37 Speaker 1To the rules of court in Singapore.00:02:41 Speaker 1Academics have have explained what this means. The court authorized to hear a case is the District Court, where the defendant resides. In other words, for a civil lawsuit filed by the plaintiff to meet relative competence, the lawsuit must be filed and submitted to the District Court.00:03:01 Speaker 1Where the defendant resides.00:03:05 Speaker 1If the defendants residence is not known, the Indonesian HR provides for civil proceedings to be brought in the Central Jakarta District Court.00:03:20 Speaker 1The defendant can, however, once the suit is brought, object to the jurisdiction of a court.00:03:26 Speaker 1If he is able to prove that the court with relative competence does not have subject matter, jurisdiction or absolute competence to hear the case brought against that defendant.00:03:39 Speaker 1For example.00:03:42 Speaker 1Article 134 hit R provides that if the dispute is a matter that does not fall within the jurisdiction of.00:03:51 Speaker 1The District Court.00:03:52 Speaker 1Then at anytime during the examination of the case, it may be requested that the judge declare himself incompetent.00:04:02 Speaker 1And these are also be recognized.00:04:05 Speaker 1By virtue of his office.00:04:07 Speaker 1Further first went to Article 136 IR.00:04:12 Speaker 1The exceptions that the defendant may wish to raise, except in cases where the judge is not authorized, shall not be raised and considered individually, but shall be discussed and decided together with the merits of the case.00:04:29 Speaker 1So let\'s look at a short.00:04:31 Speaker 1Case study to illustrate the notion of relative competence.00:04:37 Speaker 1Let\'s see. The defendant E is a company incorporated and registered with the Registrar of District Court 1A case.00:04:47 Speaker 1Is filed against.00:04:48 Speaker 1A in District Court, one in relation to land ownership disputes.00:04:54 Speaker 1In that situation, the question is how can a contest jurisdiction?00:04:59OK.00:05:00 Speaker 1In that situation, party A would submit that the District Court has no jurisdiction to hear the case because the dispute concerns land ownership, which is a state administrative dispute.00:05:15 Speaker 1RTA can further argue that a state administrative dispute should be submitted to and falls within the jurisdiction of the state Administrative Court and not any other District Court.00:05:31 Speaker 1Let\'s look at a different example, 500 minus sued Company C for unpaid wages and other breach of employment contracts.00:05:41 Speaker 1However, Company C is actually a company registered in Singapore.00:05:47 Speaker 1And it is actually the shareholder of the company that is Company B which directly employs the 500 miners.00:05:55 Speaker 1The miners have filed the dispute against Company C in the Industrial Relations Court in Indonesia, where the mine is located.00:06:04 Speaker 1The Industrial Relations Court has been established as a special court within the District Court that has the authority to examine, adjudicate and give judgment on industrial relation disputes.00:06:19 Speaker 1How would company?00:06:20 Speaker 1C argue against the jurisdiction of the court.00:06:25 Speaker 1In the case, company C would argue that the District Court is not authorized.00:06:31 Speaker 1Or has exceeded the limit of its authority because companies C and the 500 miners are not bound by an employment relationship.00:06:41 Speaker 1In this case, the court is not authorized on grounds of both relative and absolute competence. Unemployment relationship can only arise where there is an employment agreement between the employer and the employee. So in order for the Industrial Relations Court in that district to hear a dispute, the dispute must first concern.00:07:01 Speaker 1An employment relationship. Without this, the Industrial Court does not have absolute competence to hear the matter.00:07:10 Speaker 1Company C isn\'t in any event a company registered in Singapore.00:07:15 Speaker 1Without an employment relationship or any relationship with the minors, it falls outside the scope of the territorial jurisdiction of the of the Court in Indonesia. So in principle, in accordance with the doctrine of territorial sovereignty.00:07:32 Speaker 1Indonesian courts cannot transcend territorial boundaries and exercise extraterritorial authority over Company C, which has no presence in Indonesia other than owning shares in the Company B.00:07:48 Speaker 1Another example to look at and this is the final one, is to look at the notion of absolute competence in the context of an our international arbitration.00:07:58 Speaker 1Let\'s see. A Singapore seated arbitration has been concluded and an international arbitration award has been granted.00:08:07 Speaker 1A party who has lost in the arbitration then applied to allow the award not set aside but applied to acknowledge with the Central Jakarta District Court.00:08:18 Speaker 1The other party challenges this and argues that the court does not have the authority to examine and hear requests for the cancellation of international arbitral awards.00:08:32 Speaker 1Where would we look to for confirmation of this absolute competence absence?00:08:39 Speaker 1The Indonesian arbitration law, which expressly limits the authority of the district courts in Indonesia only to registering and forcing or refusing to enforce international arbitration awards, would be your first.00:08:53 Speaker 1Port of call.00:08:55 Speaker 1Articles 59 to 64 talk about the provisions that allow the District Court to deal with.00:09:02 Speaker 1Domestic awards, not foreign seated awards.00:09:06 Speaker 1Annulment of a domestic arbitration award is also found in that same law. However, because Indonesia is a party to the New York Convention, the jurisdiction of the court in Indonesia is only limited to registering a foreign award and forcing that foreign award or refusing.00:09:27 Speaker 1Registration or enforcement or any of the New York Convention grounds.00:09:32 Speaker 1Based on that last length of the Indonesian arbitration law, the District Court does not have subject matter jurisdiction or authority to allow a foreign Seated arbitration award.00:09:51 Speaker 2Clearly, the nature and jurisdiction of different courts and civil law systems is important. Let me use the Thai courts to give you a sense of the types of courts hearing some matters.00:10:02 Speaker 2As a starting position in civil cases, the plaintiff generally files a case with the civil court within the jurisdiction of which the cause of action arises, or the defendant has a domicile C-section. Four of the Civil Procedure code on this top of the slide. However, Thailand has four specialized courts that have jurisdiction over.00:10:23 Speaker 2Specific types of cases, as you see on the screen that includes the Central Labour Court, the central intellectual property and International Trade Court, or the CPI T short, the Central Tax Court and the Central Bankruptcy Court.00:10:39 Speaker 2These courts were established so that specific issues would be heard by career judges with the appropriate background and expertise. They are all courts of the first instance and most appeals from them go directly to the Supreme Court.00:10:53 Speaker 2All the specialised courts have jurisdiction throughout the entire Kingdom of Thailand, but most are located in the central court in Bangkok. The Labour Court, however, has 8 regional branches. Therefore relative competence might depend on where the labor dispute in fact arose.00:11:14 Speaker 2We now turn to the principle of X equal, IE bono.00:11:19 Speaker 2You may have heard of this ex accrue Bono is a Latin term that translates to from equity and conscience, or according to what is just and good. It is a legal principle that allows a judge or arbitrator to make decisions based on what is fair and equitable in the situation rather than strictly adhere to the letter of the law.00:11:40 Speaker 2Now, how does this apply in practice?00:11:43 Speaker 2Take Indonesia, for example. The authority of Indonesian judges to decide, based on the principle of exway bono.00:11:50 Speaker 2Does not work.00:11:51 Speaker 2In isolation and is not triggered automatically under Indonesian procedural law. A request in court for the judges to decide on ex aquaria bono principles must be requested in writing.00:12:03 Speaker 2By the plaintiff in its claim, the plaintiff must specifically request that this be a remedy and that the judge decide on equity bono principles. If the judge has a different view on the matter than what the contract would originally dictate.00:12:18 Speaker 2See, however, Article 10 at the bottom of this slide, the court is prohibited from setting for an ex Aqua bono remedy on the pretext that the law on the matter is absent or unclear. For this reason, various academic texts explain how the ex agree. Borno Remedy is a secondary remedy. It must be pleaded as a secondary remedy.00:12:38 Speaker 2To the preliminary and primary reliefs available at law.00:12:45 Speaker 2Let me round off this difference between ex FBI, bono and equity in common law by comparing the Supreme Court\'s authority in Indonesia with an arbitral tribunals authority. Unlike a judge, an arbitral tribunal, whether in a Singapore seated arbitration or Indonesian seated arbitration, does not have authority to decide on an ex Aqua bono basis.00:13:05 Speaker 2Unless expressly agreed by parties, for example, Article 56 provides that unless arbitrators have been given the freedom to render an award based on justice and appropriateness, the arbitrators may only render the award based on the material laws of the contract or the procedural laws that apply to the arbitration.00:13:28 Speaker 2Common and civil law practitioners adopt different approaches towards fact finding.00:13:33 Speaker 2Put simply, disclosure or discovery processes are not available in civil law jurisdictions.00:13:41 Speaker 2If you move into practice, you\'ll see that the court systems in common law jurisdictions, including Singapore, allow parties to seek production of documents during the course of the case.00:13:52 Speaker 2Your client to produce all documents that the party will use as evidence any documents that the party should know is adverse to its own case, and so in other words, the obligation to produce documents is not limited to the production of useful documents, but also includes adverse documents that the party is aware of and.00:14:12 Speaker 2Would become aware of.00:14:13 Speaker 2If it runs reasonable checks and searches.00:14:16 Speaker 2Therefore, you\'re looking at a broad universe of documents that must.00:14:20 Speaker 2Be produced during discovery.00:14:22 Speaker 2In certain circumstances, the Court may of its own accord and at anytime order a party to produce a copy of a document in the other party\'s possession, custody or control. Discovery processes also allow a party to submit document requests or requests for document production through Redfern schedules and other court litigation.00:14:42 Speaker 2Tools.00:14:44 Speaker 2The principle therefore applied in common law systems is that disclosure facilitates getting at the truth as a means to achieving justice.00:14:53 Speaker 2Mutual knowledge of all of the relevant facts gathered by both parties is essential to proper litigation.00:15:00 Speaker 2To that end, either party may compel the other to disgorge whatever facts he has in his possession.00:15:06 Speaker 2This type of disclosure also attempts to reduce the possibility of surprise or trial by ambush, with, as what the Court of Appeal in England and Wales puts it.00:15:16 Speaker 2All cards face up on the table.00:15:20 Speaker 2Conversely, under the civil law tradition, plaintiffs are expected to gather all the necessary evidence for their claim before filing a lawsuit.00:15:28 Speaker 2The underlying assumption is that truth cannot be solved by limitless means. Each party bears their own case and the burden of proving their own case.00:15:38 Speaker 2Although certain disclosure mechanisms are available on civil law jurisdictions, these tend to be very limited. Cases are therefore typically decided on the evidence that has been voluntarily submitted by each party.00:15:52 Speaker 2For example, Indonesia does not have an elaborate discovery or disclosure process. Parties do not have an obligation to share or disclose evidence or documents prior to the proceedings after pleadings have been filed, there is an evidentiary hearing in which parties are required to submit any evidence on which they have relied on in their arguments.00:16:13 Speaker 2There is no procedural provision for either the Court or another party to require disclosure of evidence which it has chosen not to submit as part.00:16:22 Speaker 2Of this process.00:16:23 Speaker 2This is in line with the general principles in Indonesian Civil Procedure that judges should only examine matters that are submitted by the parties and that parties bear the burden of proving any assertions made as part of their case.00:16:38 Speaker 2Parties do not have an obligation to share or disclose evidence or documents before the proceedings.00:16:45 Speaker 2No written statements of witnesses and experts are to be exchanged in advance. Most often, evidence is directly addressed by parties through arguments in a trial in chief examination in chief.00:16:59 Speaker 2Similarly, there is no pretrial discovery process in Thailand.00:17:03 Speaker 2Thi CPC provides that accept the facts that are generally known or indisputable or admitted or deemed to have been admitted by the parties. The determination of questions or facts in a case shall be made by relying on evidence put before the court. The CPC also gives judges wide discretionary proceedings in their courtrooms.00:17:24 Speaker 2With respect to the admissibility of evidence, the court has the discretion to reject any evidence that is superfluous or irrelevant to the subject matter of the case.00:17:33 Speaker 2A party can request the court to order the other party or a third party to produce a specific document. This is typically done through a motion during the course of litigation. The court has discretion to grant or deny such a request.00:17:46 Speaker 2It\'s important to note that the scope of such a request is usually limited to very specific documents that are directly named and relevant to the case, rather than a broad range of documents as might be seen in a common law discovery process. Therefore, while there is a mechanism for obtaining documents from the other party, it is not as broad or systematic as the process of document.00:18:08 Speaker 2Reduction or discovery in common law systems, as you may see in Redfern schedules or in arbitration.00:18:16 Speaker 2Discovery procedures are set out as you\'ve now heard in my earlier explanations in the Civil Procedure code. However, these procedures and the accompanying discovery mechanisms are very limited in scope. Some of the key features of these procedures include the following.00:18:33 Speaker 21st No litigation holds except where otherwise required by law or regulations. By law and procedure, impose no duty on a party to preserve evidence in anticipation of litigation. Each party is required to disclose documents and witnesses that might be introduced during the course of trial. By submitting a list of evidence and witnesses.00:18:53 Speaker 2Support and providing a copy of documentary evidence in its possession that it intends to produce during the trial. This must be done at least seven days before the taking of the relevant evidence at the first day of hearing. That\'s a fairly short duration for a notice for the other side before trial begins.00:19:13 Speaker 2Under the Civil Procedure code in Thailand, the party may file a motion requesting the court to subpoena evidence from the opposing party or a third party. As I mentioned, if the Court is of the opinion, the document is important evidence and the application is well grounded, the Court will issue a subpoena directing the provision of the evidence.00:19:31 Speaker 2There is also now a second point. There is limited initial disclosure of evidence. Parties are not required to produce lengthy initial disclosures or mandatory disclosures of the witnesses and documentary evidence on which they intend to rely on during trial. Instead, that same seven day period applies.00:19:50 Speaker 2Each party is only required to submit a list of witnesses and documentary evidence 7 days before the hearing at which the evidence will be taken.00:19:59 Speaker 2For supplementary lists of additional witnesses or evidence, each party is required to submit this list within 15 days from the hearing at which the evidence was already presented.00:20:11 Speaker 23rd, No fishing expeditions for documentary evidence, and accordingly no need to make large document productions in response to the same.00:20:20 Speaker 2One of the most significant features of thy discovery process is an example that distinguishes it from the processes in other jurisdictions. Is its requirement for specificity in any request for documentary evidence in the possession of the opposing or a third party?00:20:37 Speaker 2In other words, broad requests for extensive types amounts, or date ranges of documents which are not part of the discovery, are not part of the discovery mechanisms provided.00:20:48 Speaker 2In the CPC.00:20:50 Speaker 2That is quite different from what we see. As I mentioned earlier, and common law disclosure regimes, including Redfern schedules under arbitration.00:21:00 Speaker 2What about privilege?00:21:03 Speaker 2Is there privilege as an exception to production?00:21:06 Speaker 2The short answer is yes, there is reading material that we\'ve distributed on this to you at the.00:21:11 Speaker 2Start of this.00:21:11 Speaker 2Course as an example and as a general rule, civil system lawyers have the obligation to keep confidential any information received from their clients, unless otherwise stipulated. By law, this obligation is not limited by time.00:21:27 Speaker 2Meaning that it continues to apply even after the Advocate client relationship has ended.00:21:32 Speaker 2However, it is important to note that the scope and application of legal privilege in civil law systems may not be as broad or as strictly enforced as in other jurisdictions, including the common law systems. For instance, in House counsel in Indonesia. Unlike their counterparts in some common law, jurisdictions do not have the right to claim privilege over their work.00:21:53 Speaker 2Product.00:21:55 Speaker 2Advocates are obliged to maintain the confidentiality of any information communicated by their clients as part of attorney-client privilege. This includes documents and correspondence exchanged with and obtained from clients during an applicant\'s professional legal services. In house lawyers, on the other hand, are regarded as employees providing legal services to employers.00:22:16 Speaker 2Rather than, as advocates in both Thailand and Indonesia, therefore their advice to employers is not subject to attorney-client privilege.00:22:26 Speaker 2Furthermore, there are other exceptions to this privilege. Advocates may be required to disclose certain information in compliance with Indonesian and Thai laws and regulations, such as in the cases involving money laundering or even terrorism financing.00:22:43 Speaker 2In addition to the examples that we\'ve looked at in Thailand and Indonesia, we thought it would be helpful to include a whistle stop tour of privilege issues in APAC.00:22:52 Speaker 2If you start with Singapore, it\'s given a fairly broad provision of privilege. Interestingly, Singapore has amended its Evidence Act to define who qualifies as a client for in-house lawyers.00:23:04 Speaker 2Where an in House counsel is employed by one of a number of related corporations for the purposes of determining whether privilege can be claimed. This in-house counsel will be deemed to be employed by each of those related corporations, and that section 120.00:23:18 Speaker 28A4.00:23:20 Speaker 2Of the Evidence Act, this provision was enacted by Parliament to allow legal advice.00:23:25 Speaker 2Given by central in-house legal departments of large MNC\'s to related entities to be protected by legal professional privilege.00:23:33 Speaker 2Without the added.00:23:34 Speaker 2Need to prove the existence of an employment relationship in relation to each entity.00:23:41 Speaker 2This is actually one of the clearest positions around the world.00:23:44 Speaker 2In Hong Kong.00:23:45 Speaker 2The position is very much similar. Legal professional privilege extends to protect communications between in-house lawyers and corporate clients. That is their employer. However, that means the employment relationship must be proven in each instance.00:24:00 Speaker 2The advice must also have been provided for the dominant purpose of providing legal advice.00:24:05 Speaker 2The Hong Kong.00:24:05 Speaker 2Courts have given US 2 interesting benchmarks for that test, and these are two questions to ask yourself. What advice? By in House Counsel have been privileged? If that had been similarly provided by an external lawyer, could an external lawyer have been engaged for the same matter?00:24:21 Speaker 2The answer is yes. Then more likely than not, the in-house counsel should be afforded the same protections of legal professional privilege and the advice privileged between the in-house counsel and the client.00:24:34 Speaker 2In Australia, the biggest difference is in how communications with in-house counselors tested here. The first line of the test is whether the in-house lawyer holds a current practicing certificate with consequential professional obligations to the court. While there is authority that it is not essential for an in House lawyer to hold the current practicing cert in order to claim privilege.00:24:55 Speaker 2It has been held that a failure to have a practicing set would carry substantial weight on the question of lack of independence and therefore whether privilege should be granted.00:25:05 Speaker 2To whom the in-house lawyer reports in the organization.00:25:08 Speaker 2And with whom?00:25:09 Speaker 2The in-house lawyer shares the draft advice is the second relevant limb in in Australia in particular, was the drafted by shared with someone from the business, only to ensure that the facts are correct or to seek the approval of the business as to the conclusion of the advice.00:25:25 Speaker 2Divisive in-house lawyers should not be subject to direction or alteration by non lawyers or lawyers acting in a non legal capacity if the advice was in fact subject to direction or alteration, then it is more likely that this advice will not be given the protections of privilege.00:25:43 Speaker 23rd, whether the in-house lawyer holds other non legal roles within the business. Naturally the assumption here is if the in-house lawyer holds other non legal rules then their advice mean certainly or potentially not be protected by privilege because they are providing that advice in the context of their non legal roles.00:26:05 Speaker 24th, whether the in-house lawyer participates in remuneration schemes, whether in the form of cash bonuses or share or option entitlements that are related to the financial success of the business, this again points to the suggestion that the in-house lawyer operates more as a business person rather than as an advisor in legal matters.00:26:26 Speaker 2In India, another common law context, multiple factors have been considered. Largely, these considerations seem to be leaning towards no questions. The Supreme Court have considered include whether the in-house counsel draws a salary or if they have engaged to plead on behalf of the company.00:26:45 Speaker 2If the answer is no, the courts appear to see the lawyer as a business colleague rather than as an adviser of legal matters, whom to whom privilege should be extended.00:26:56 Speaker 2Korea is an interesting one. Lawyers have a confidentiality obligation under Korean law, but they are unable to refuse the search and seizure requested by authorities. There is news in March this year. The Korean Law Societies pushing for enactment to the Congress to provide attorney-client privilege to be extended.00:27:16 Speaker 2To in-house console as well.00:27:19 Speaker 2In Japan, protection is limited to documents and communications kept by registered attorneys at law, Japanese lawyers or bengoshi, and foreign lawyers registered as foreign attorneys in Japan.00:27:30 Speaker 2Are subject to a statutory obligation of confidentiality to the extent that same information or documents are in the possession of the client or any other party other than a lawyer, the information or documents will not be subject to any specific protection from disclosure.00:27:48 Speaker 2An interesting thing to think about what happens if you\'re operating in a jurisdiction like Japan where there are general confidentiality protections but no prima facie extension of privilege to in-house counsel? Our documents produced by in House Counsel, which repeat advice or defense strategy provided by an external lawyer, privileged. It\'s OK I\'ve come across.00:28:09 Speaker 2In France, Whirlpool.00:28:11 Speaker 2Whirlpool\'s in House Counsel exchange emails between themselves and other company employees in which they discuss the findings of the external law firm, commented on the strategy and added their own views subsequently, while Walpole\'s premises were searched and documents seized, including these internal emails, which involve the in-house counsel.00:28:33 Speaker 2The French courts in the exercise of their civil law systems, agreed that the documents were privileged, which grants the benefit of the protection of legal privilege to internal notes, reporting the text of the content of the privileged communications or two working documents are summaries that were drawn up for the purpose of seeking legal advice from a lawyer.00:28:55 Speaker 2China is also an interesting exception. There is no concept of privilege extended to Chinese lawyers or in-house counsel.00:29:03 Speaker 2This is also something to bear in mind when dealing with your clients.00:29:07 Speaker 2Do you have privilege? If you are dealing with them as external counsel or in House Counsel?00:29:51Tommy.00:30:51Yeah, I mean.00:31:07Right.](https://1drv.ms/u/s!AGaPTZsZg5MLib5b) Audio file ========== [Your Recording 68.wavTranscript00:00:06 Speaker 1Hi there this is Session 4 which will touch on certain procedural issues in civil law jurisdictions.00:00:15 Speaker 1We now turn first to Indonesia and the basis of the courts jurisdiction.00:00:21 Speaker 1There are two main bases of jurisdiction 1 is called absolute competence or absolute jurisdiction, and the other is called relative competence or relative jurisdiction.00:00:34 Speaker 1Absolute competence refers to a court\'s authority to decide on a particular type of case based on the subject matter.00:00:44 Speaker 1This is sometimes called the subject matter jurisdiction and it is determined by the nature of the legal issue or the type of relief sought. For example, a Criminal Court has absolute competence to hear criminal cases, while a family court has absolute competence.00:01:04 Speaker 1To hear cases related to family matters, such as annulment of marriages, divorce or child custody.00:01:13 Speaker 1The Commercial Court, on the other hand, manages commercial cases.00:01:18 Speaker 1By contrast, relative competence or jurisdiction refers to the appropriate court to hear a case based on factors such as the geographical location of the parties or the place where a contract was signed, or a thought committed.00:01:38 Speaker 1How does this work in practice?00:01:44 Speaker 1The relevant book on procedural issues known as HHIR or has an in LASK reglement provides in Article 118, subparagraph one that.00:01:58 Speaker 1Several suits, which in the first instance fall under the jurisdiction of the District Court, shall be brought by a rate of demand signed by the plaintiff or by his representative to the President of the District Court, in whose jurisdiction the defendant has his domicile or.00:02:18 Speaker 1If his domicile is not known, his actual residence, the HR is the primary code of Civil Procedure in Indonesia and it provides for rules for initiation of lawsuits and presentation of evidence.00:02:34 Speaker 1It is closest closely analogous.00:02:37 Speaker 1To the rules of court in Singapore.00:02:41 Speaker 1Academics have have explained what this means. The court authorized to hear a case is the District Court, where the defendant resides. In other words, for a civil lawsuit filed by the plaintiff to meet relative competence, the lawsuit must be filed and submitted to the District Court.00:03:01 Speaker 1Where the defendant resides.00:03:05 Speaker 1If the defendants residence is not known, the Indonesian HR provides for civil proceedings to be brought in the Central Jakarta District Court.00:03:20 Speaker 1The defendant can, however, once the suit is brought, object to the jurisdiction of a court.00:03:26 Speaker 1If he is able to prove that the court with relative competence does not have subject matter, jurisdiction or absolute competence to hear the case brought against that defendant.00:03:39 Speaker 1For example.00:03:42 Speaker 1Article 134 hit R provides that if the dispute is a matter that does not fall within the jurisdiction of.00:03:51 Speaker 1The District Court.00:03:52 Speaker 1Then at anytime during the examination of the case, it may be requested that the judge declare himself incompetent.00:04:02 Speaker 1And these are also be recognized.00:04:05 Speaker 1By virtue of his office.00:04:07 Speaker 1Further first went to Article 136 IR.00:04:12 Speaker 1The exceptions that the defendant may wish to raise, except in cases where the judge is not authorized, shall not be raised and considered individually, but shall be discussed and decided together with the merits of the case.00:04:29 Speaker 1So let\'s look at a short.00:04:31 Speaker 1Case study to illustrate the notion of relative competence.00:04:37 Speaker 1Let\'s see. The defendant E is a company incorporated and registered with the Registrar of District Court 1A case.00:04:47 Speaker 1Is filed against.00:04:48 Speaker 1A in District Court, one in relation to land ownership disputes.00:04:54 Speaker 1In that situation, the question is how can a contest jurisdiction?00:04:59OK.00:05:00 Speaker 1In that situation, party A would submit that the District Court has no jurisdiction to hear the case because the dispute concerns land ownership, which is a state administrative dispute.00:05:15 Speaker 1RTA can further argue that a state administrative dispute should be submitted to and falls within the jurisdiction of the state Administrative Court and not any other District Court.00:05:31 Speaker 1Let\'s look at a different example, 500 minus sued Company C for unpaid wages and other breach of employment contracts.00:05:41 Speaker 1However, Company C is actually a company registered in Singapore.00:05:47 Speaker 1And it is actually the shareholder of the company that is Company B which directly employs the 500 miners.00:05:55 Speaker 1The miners have filed the dispute against Company C in the Industrial Relations Court in Indonesia, where the mine is located.00:06:04 Speaker 1The Industrial Relations Court has been established as a special court within the District Court that has the authority to examine, adjudicate and give judgment on industrial relation disputes.00:06:19 Speaker 1How would company?00:06:20 Speaker 1C argue against the jurisdiction of the court.00:06:25 Speaker 1In the case, company C would argue that the District Court is not authorized.00:06:31 Speaker 1Or has exceeded the limit of its authority because companies C and the 500 miners are not bound by an employment relationship.00:06:41 Speaker 1In this case, the court is not authorized on grounds of both relative and absolute competence. Unemployment relationship can only arise where there is an employment agreement between the employer and the employee. So in order for the Industrial Relations Court in that district to hear a dispute, the dispute must first concern.00:07:01 Speaker 1An employment relationship. Without this, the Industrial Court does not have absolute competence to hear the matter.00:07:10 Speaker 1Company C isn\'t in any event a company registered in Singapore.00:07:15 Speaker 1Without an employment relationship or any relationship with the minors, it falls outside the scope of the territorial jurisdiction of the of the Court in Indonesia. So in principle, in accordance with the doctrine of territorial sovereignty.00:07:32 Speaker 1Indonesian courts cannot transcend territorial boundaries and exercise extraterritorial authority over Company C, which has no presence in Indonesia other than owning shares in the Company B.00:07:48 Speaker 1Another example to look at and this is the final one, is to look at the notion of absolute competence in the context of an our international arbitration.00:07:58 Speaker 1Let\'s see. A Singapore seated arbitration has been concluded and an international arbitration award has been granted.00:08:07 Speaker 1A party who has lost in the arbitration then applied to allow the award not set aside but applied to acknowledge with the Central Jakarta District Court.00:08:18 Speaker 1The other party challenges this and argues that the court does not have the authority to examine and hear requests for the cancellation of international arbitral awards.00:08:32 Speaker 1Where would we look to for confirmation of this absolute competence absence?00:08:39 Speaker 1The Indonesian arbitration law, which expressly limits the authority of the district courts in Indonesia only to registering and forcing or refusing to enforce international arbitration awards, would be your first.00:08:53 Speaker 1Port of call.00:08:55 Speaker 1Articles 59 to 64 talk about the provisions that allow the District Court to deal with.00:09:02 Speaker 1Domestic awards, not foreign seated awards.00:09:06 Speaker 1Annulment of a domestic arbitration award is also found in that same law. However, because Indonesia is a party to the New York Convention, the jurisdiction of the court in Indonesia is only limited to registering a foreign award and forcing that foreign award or refusing.00:09:27 Speaker 1Registration or enforcement or any of the New York Convention grounds.00:09:32 Speaker 1Based on that last length of the Indonesian arbitration law, the District Court does not have subject matter jurisdiction or authority to allow a foreign Seated arbitration award.00:09:51 Speaker 2Clearly, the nature and jurisdiction of different courts and civil law systems is important. Let me use the Thai courts to give you a sense of the types of courts hearing some matters.00:10:02 Speaker 2As a starting position in civil cases, the plaintiff generally files a case with the civil court within the jurisdiction of which the cause of action arises, or the defendant has a domicile C-section. Four of the Civil Procedure code on this top of the slide. However, Thailand has four specialized courts that have jurisdiction over.00:10:23 Speaker 2Specific types of cases, as you see on the screen that includes the Central Labour Court, the central intellectual property and International Trade Court, or the CPI T short, the Central Tax Court and the Central Bankruptcy Court.00:10:39 Speaker 2These courts were established so that specific issues would be heard by career judges with the appropriate background and expertise. They are all courts of the first instance and most appeals from them go directly to the Supreme Court.00:10:53 Speaker 2All the specialised courts have jurisdiction throughout the entire Kingdom of Thailand, but most are located in the central court in Bangkok. The Labour Court, however, has 8 regional branches. Therefore relative competence might depend on where the labor dispute in fact arose.00:11:14 Speaker 2We now turn to the principle of X equal, IE bono.00:11:19 Speaker 2You may have heard of this ex accrue Bono is a Latin term that translates to from equity and conscience, or according to what is just and good. It is a legal principle that allows a judge or arbitrator to make decisions based on what is fair and equitable in the situation rather than strictly adhere to the letter of the law.00:11:40 Speaker 2Now, how does this apply in practice?00:11:43 Speaker 2Take Indonesia, for example. The authority of Indonesian judges to decide, based on the principle of exway bono.00:11:50 Speaker 2Does not work.00:11:51 Speaker 2In isolation and is not triggered automatically under Indonesian procedural law. A request in court for the judges to decide on ex aquaria bono principles must be requested in writing.00:12:03 Speaker 2By the plaintiff in its claim, the plaintiff must specifically request that this be a remedy and that the judge decide on equity bono principles. If the judge has a different view on the matter than what the contract would originally dictate.00:12:18 Speaker 2See, however, Article 10 at the bottom of this slide, the court is prohibited from setting for an ex Aqua bono remedy on the pretext that the law on the matter is absent or unclear. For this reason, various academic texts explain how the ex agree. Borno Remedy is a secondary remedy. It must be pleaded as a secondary remedy.00:12:38 Speaker 2To the preliminary and primary reliefs available at law.00:12:45 Speaker 2Let me round off this difference between ex FBI, bono and equity in common law by comparing the Supreme Court\'s authority in Indonesia with an arbitral tribunals authority. Unlike a judge, an arbitral tribunal, whether in a Singapore seated arbitration or Indonesian seated arbitration, does not have authority to decide on an ex Aqua bono basis.00:13:05 Speaker 2Unless expressly agreed by parties, for example, Article 56 provides that unless arbitrators have been given the freedom to render an award based on justice and appropriateness, the arbitrators may only render the award based on the material laws of the contract or the procedural laws that apply to the arbitration.00:13:28 Speaker 2Common and civil law practitioners adopt different approaches towards fact finding.00:13:33 Speaker 2Put simply, disclosure or discovery processes are not available in civil law jurisdictions.00:13:41 Speaker 2If you move into practice, you\'ll see that the court systems in common law jurisdictions, including Singapore, allow parties to seek production of documents during the course of the case.00:13:52 Speaker 2Your client to produce all documents that the party will use as evidence any documents that the party should know is adverse to its own case, and so in other words, the obligation to produce documents is not limited to the production of useful documents, but also includes adverse documents that the party is aware of and.00:14:12 Speaker 2Would become aware of.00:14:13 Speaker 2If it runs reasonable checks and searches.00:14:16 Speaker 2Therefore, you\'re looking at a broad universe of documents that must.00:14:20 Speaker 2Be produced during discovery.00:14:22 Speaker 2In certain circumstances, the Court may of its own accord and at anytime order a party to produce a copy of a document in the other party\'s possession, custody or control. Discovery processes also allow a party to submit document requests or requests for document production through Redfern schedules and other court litigation.00:14:42 Speaker 2Tools.00:14:44 Speaker 2The principle therefore applied in common law systems is that disclosure facilitates getting at the truth as a means to achieving justice.00:14:53 Speaker 2Mutual knowledge of all of the relevant facts gathered by both parties is essential to proper litigation.00:15:00 Speaker 2To that end, either party may compel the other to disgorge whatever facts he has in his possession.00:15:06 Speaker 2This type of disclosure also attempts to reduce the possibility of surprise or trial by ambush, with, as what the Court of Appeal in England and Wales puts it.00:15:16 Speaker 2All cards face up on the table.00:15:20 Speaker 2Conversely, under the civil law tradition, plaintiffs are expected to gather all the necessary evidence for their claim before filing a lawsuit.00:15:28 Speaker 2The underlying assumption is that truth cannot be solved by limitless means. Each party bears their own case and the burden of proving their own case.00:15:38 Speaker 2Although certain disclosure mechanisms are available on civil law jurisdictions, these tend to be very limited. Cases are therefore typically decided on the evidence that has been voluntarily submitted by each party.00:15:52 Speaker 2For example, Indonesia does not have an elaborate discovery or disclosure process. Parties do not have an obligation to share or disclose evidence or documents prior to the proceedings after pleadings have been filed, there is an evidentiary hearing in which parties are required to submit any evidence on which they have relied on in their arguments.00:16:13 Speaker 2There is no procedural provision for either the Court or another party to require disclosure of evidence which it has chosen not to submit as part.00:16:22 Speaker 2Of this process.00:16:23 Speaker 2This is in line with the general principles in Indonesian Civil Procedure that judges should only examine matters that are submitted by the parties and that parties bear the burden of proving any assertions made as part of their case.00:16:38 Speaker 2Parties do not have an obligation to share or disclose evidence or documents before the proceedings.00:16:45 Speaker 2No written statements of witnesses and experts are to be exchanged in advance. Most often, evidence is directly addressed by parties through arguments in a trial in chief examination in chief.00:16:59 Speaker 2Similarly, there is no pretrial discovery process in Thailand.00:17:03 Speaker 2Thi CPC provides that accept the facts that are generally known or indisputable or admitted or deemed to have been admitted by the parties. The determination of questions or facts in a case shall be made by relying on evidence put before the court. The CPC also gives judges wide discretionary proceedings in their courtrooms.00:17:24 Speaker 2With respect to the admissibility of evidence, the court has the discretion to reject any evidence that is superfluous or irrelevant to the subject matter of the case.00:17:33 Speaker 2A party can request the court to order the other party or a third party to produce a specific document. This is typically done through a motion during the course of litigation. The court has discretion to grant or deny such a request.00:17:46 Speaker 2It\'s important to note that the scope of such a request is usually limited to very specific documents that are directly named and relevant to the case, rather than a broad range of documents as might be seen in a common law discovery process. Therefore, while there is a mechanism for obtaining documents from the other party, it is not as broad or systematic as the process of document.00:18:08 Speaker 2Reduction or discovery in common law systems, as you may see in Redfern schedules or in arbitration.00:18:16 Speaker 2Discovery procedures are set out as you\'ve now heard in my earlier explanations in the Civil Procedure code. However, these procedures and the accompanying discovery mechanisms are very limited in scope. Some of the key features of these procedures include the following.00:18:33 Speaker 21st No litigation holds except where otherwise required by law or regulations. By law and procedure, impose no duty on a party to preserve evidence in anticipation of litigation. Each party is required to disclose documents and witnesses that might be introduced during the course of trial. By submitting a list of evidence and witnesses.00:18:53 Speaker 2Support and providing a copy of documentary evidence in its possession that it intends to produce during the trial. This must be done at least seven days before the taking of the relevant evidence at the first day of hearing. That\'s a fairly short duration for a notice for the other side before trial begins.00:19:13 Speaker 2Under the Civil Procedure code in Thailand, the party may file a motion requesting the court to subpoena evidence from the opposing party or a third party. As I mentioned, if the Court is of the opinion, the document is important evidence and the application is well grounded, the Court will issue a subpoena directing the provision of the evidence.00:19:31 Speaker 2There is also now a second point. There is limited initial disclosure of evidence. Parties are not required to produce lengthy initial disclosures or mandatory disclosures of the witnesses and documentary evidence on which they intend to rely on during trial. Instead, that same seven day period applies.00:19:50 Speaker 2Each party is only required to submit a list of witnesses and documentary evidence 7 days before the hearing at which the evidence will be taken.00:19:59 Speaker 2For supplementary lists of additional witnesses or evidence, each party is required to submit this list within 15 days from the hearing at which the evidence was already presented.00:20:11 Speaker 23rd, No fishing expeditions for documentary evidence, and accordingly no need to make large document productions in response to the same.00:20:20 Speaker 2One of the most significant features of thy discovery process is an example that distinguishes it from the processes in other jurisdictions. Is its requirement for specificity in any request for documentary evidence in the possession of the opposing or a third party?00:20:37 Speaker 2In other words, broad requests for extensive types amounts, or date ranges of documents which are not part of the discovery, are not part of the discovery mechanisms provided.00:20:48 Speaker 2In the CPC.00:20:50 Speaker 2That is quite different from what we see. As I mentioned earlier, and common law disclosure regimes, including Redfern schedules under arbitration.00:21:00 Speaker 2What about privilege?00:21:03 Speaker 2Is there privilege as an exception to production?00:21:06 Speaker 2The short answer is yes, there is reading material that we\'ve distributed on this to you at the.00:21:11 Speaker 2Start of this.00:21:11 Speaker 2Course as an example and as a general rule, civil system lawyers have the obligation to keep confidential any information received from their clients, unless otherwise stipulated. By law, this obligation is not limited by time.00:21:27 Speaker 2Meaning that it continues to apply even after the Advocate client relationship has ended.00:21:32 Speaker 2However, it is important to note that the scope and application of legal privilege in civil law systems may not be as broad or as strictly enforced as in other jurisdictions, including the common law systems. For instance, in House counsel in Indonesia. Unlike their counterparts in some common law, jurisdictions do not have the right to claim privilege over their work.00:21:53 Speaker 2Product.00:21:55 Speaker 2Advocates are obliged to maintain the confidentiality of any information communicated by their clients as part of attorney-client privilege. This includes documents and correspondence exchanged with and obtained from clients during an applicant\'s professional legal services. In house lawyers, on the other hand, are regarded as employees providing legal services to employers.00:22:16 Speaker 2Rather than, as advocates in both Thailand and Indonesia, therefore their advice to employers is not subject to attorney-client privilege.00:22:26 Speaker 2Furthermore, there are other exceptions to this privilege. Advocates may be required to disclose certain information in compliance with Indonesian and Thai laws and regulations, such as in the cases involving money laundering or even terrorism financing.00:22:43 Speaker 2In addition to the examples that we\'ve looked at in Thailand and Indonesia, we thought it would be helpful to include a whistle stop tour of privilege issues in APAC.00:22:52 Speaker 2If you start with Singapore, it\'s given a fairly broad provision of privilege. Interestingly, Singapore has amended its Evidence Act to define who qualifies as a client for in-house lawyers.00:23:04 Speaker 2Where an in House counsel is employed by one of a number of related corporations for the purposes of determining whether privilege can be claimed. This in-house counsel will be deemed to be employed by each of those related corporations, and that section 120.00:23:18 Speaker 28A4.00:23:20 Speaker 2Of the Evidence Act, this provision was enacted by Parliament to allow legal advice.00:23:25 Speaker 2Given by central in-house legal departments of large MNC\'s to related entities to be protected by legal professional privilege.00:23:33 Speaker 2Without the added.00:23:34 Speaker 2Need to prove the existence of an employment relationship in relation to each entity.00:23:41 Speaker 2This is actually one of the clearest positions around the world.00:23:44 Speaker 2In Hong Kong.00:23:45 Speaker 2The position is very much similar. Legal professional privilege extends to protect communications between in-house lawyers and corporate clients. That is their employer. However, that means the employment relationship must be proven in each instance.00:24:00 Speaker 2The advice must also have been provided for the dominant purpose of providing legal advice.00:24:05 Speaker 2The Hong Kong.00:24:05 Speaker 2Courts have given US 2 interesting benchmarks for that test, and these are two questions to ask yourself. What advice? By in House Counsel have been privileged? If that had been similarly provided by an external lawyer, could an external lawyer have been engaged for the same matter?00:24:21 Speaker 2The answer is yes. Then more likely than not, the in-house counsel should be afforded the same protections of legal professional privilege and the advice privileged between the in-house counsel and the client.00:24:34 Speaker 2In Australia, the biggest difference is in how communications with in-house counselors tested here. The first line of the test is whether the in-house lawyer holds a current practicing certificate with consequential professional obligations to the court. While there is authority that it is not essential for an in House lawyer to hold the current practicing cert in order to claim privilege.00:24:55 Speaker 2It has been held that a failure to have a practicing set would carry substantial weight on the question of lack of independence and therefore whether privilege should be granted.00:25:05 Speaker 2To whom the in-house lawyer reports in the organization.00:25:08 Speaker 2And with whom?00:25:09 Speaker 2The in-house lawyer shares the draft advice is the second relevant limb in in Australia in particular, was the drafted by shared with someone from the business, only to ensure that the facts are correct or to seek the approval of the business as to the conclusion of the advice.00:25:25 Speaker 2Divisive in-house lawyers should not be subject to direction or alteration by non lawyers or lawyers acting in a non legal capacity if the advice was in fact subject to direction or alteration, then it is more likely that this advice will not be given the protections of privilege.00:25:43 Speaker 23rd, whether the in-house lawyer holds other non legal roles within the business. Naturally the assumption here is if the in-house lawyer holds other non legal rules then their advice mean certainly or potentially not be protected by privilege because they are providing that advice in the context of their non legal roles.00:26:05 Speaker 24th, whether the in-house lawyer participates in remuneration schemes, whether in the form of cash bonuses or share or option entitlements that are related to the financial success of the business, this again points to the suggestion that the in-house lawyer operates more as a business person rather than as an advisor in legal matters.00:26:26 Speaker 2In India, another common law context, multiple factors have been considered. Largely, these considerations seem to be leaning towards no questions. The Supreme Court have considered include whether the in-house counsel draws a salary or if they have engaged to plead on behalf of the company.00:26:45 Speaker 2If the answer is no, the courts appear to see the lawyer as a business colleague rather than as an adviser of legal matters, whom to whom privilege should be extended.00:26:56 Speaker 2Korea is an interesting one. Lawyers have a confidentiality obligation under Korean law, but they are unable to refuse the search and seizure requested by authorities. There is news in March this year. The Korean Law Societies pushing for enactment to the Congress to provide attorney-client privilege to be extended.00:27:16 Speaker 2To in-house console as well.00:27:19 Speaker 2In Japan, protection is limited to documents and communications kept by registered attorneys at law, Japanese lawyers or bengoshi, and foreign lawyers registered as foreign attorneys in Japan.00:27:30 Speaker 2Are subject to a statutory obligation of confidentiality to the extent that same information or documents are in the possession of the client or any other party other than a lawyer, the information or documents will not be subject to any specific protection from disclosure.00:27:48 Speaker 2An interesting thing to think about what happens if you\'re operating in a jurisdiction like Japan where there are general confidentiality protections but no prima facie extension of privilege to in-house counsel? Our documents produced by in House Counsel, which repeat advice or defense strategy provided by an external lawyer, privileged. It\'s OK I\'ve come across.00:28:09 Speaker 2In France, Whirlpool.00:28:11 Speaker 2Whirlpool\'s in House Counsel exchange emails between themselves and other company employees in which they discuss the findings of the external law firm, commented on the strategy and added their own views subsequently, while Walpole\'s premises were searched and documents seized, including these internal emails, which involve the in-house counsel.00:28:33 Speaker 2The French courts in the exercise of their civil law systems, agreed that the documents were privileged, which grants the benefit of the protection of legal privilege to internal notes, reporting the text of the content of the privileged communications or two working documents are summaries that were drawn up for the purpose of seeking legal advice from a lawyer.00:28:55 Speaker 2China is also an interesting exception. There is no concept of privilege extended to Chinese lawyers or in-house counsel.00:29:03 Speaker 2This is also something to bear in mind when dealing with your clients.00:29:07 Speaker 2Do you have privilege? If you are dealing with them as external counsel or in House Counsel?00:29:51Tommy.00:30:51Yeah, I mean.00:31:07Right.](https://1drv.ms/u/s!AGaPTZsZg5MLib5b)