The M/V Saiga case: Saint Vincent and Grenadines v. Guinea

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 is guided by the law of the place where the account is held; unless there is an agreement to the contrary. Thus far, there was no challenge to the application of the rule.

Reasoning: Banks and their customers expect that it is the local law that applies. There must be strong and solid ground to displace the general rule and apply to the contrary. There is not a sign of any such ground in this case.

The money was owned by the Libyan Foreign Bank and it had to be returned to them. The courts in London ruled to that effect. The explained that under the agreement, they deserved to be refunded their money and that the deposit bank owed it to them; a breach of which they would be held responsible and accountable for the same. The conflict is a complicated on because of the nature of rulings delivered by the USA and London courts. According to the existing procedures and policies, the Bankers Trust has a right to seek permission from the US government to release the money or else file an appeal in London.

Facts: An order was placed by US president Ronald Reagan to freeze monies held in Bankers Trust Company. The Libyan Arab Foreign Bank sought ways of recovering the money.

The proper statute that governs the account is based on English Law dating from 1973 to 1980 in December. However, there was a drastic change when the managed account agreement was reached.

CASE 7-2 Japan -- Taxes on Alcoholic Beverages

The Supreme Court of India 1986

Procedural History: Monsanto filed a case against Coramandal Indag complaining that the compound that was used by the defendant in the case in the production of their products, i.e. Phytotoxic Compositions and the Herbicide for grass selection compositions violated the weed killer patent because they used Butachlor. The Indian Supreme Court presided over the matter. The court found no merit in the plaintiff\'s suit because the substance in focus was not a creation of Monsanto, and therefore cannot provide the basis for the violation of the patent.

Issue: Did a violation of patent rights occur and done so by the defendant? Monsanto has filed a suit against Coramandal Indag for infringing their right to the patent. Monsanto has claimed that it patented the chemical ingredient in 1979. The patent was registered under the name Butachlor. However, Coramndal did not violate the patent.

Did the product of the defendant contain the patented compound? Monsanto collected samples of the products by the defendant and analyzed it. After their evaluation process, they discovered that the product contains the same chemical ingredients as Butachlor. Consequently, Monsanto has requested the courts to uncover the compound in the Coramandal product and demonstrate infringement by the defendant. Coramandal has cancelled the Monsanto Company patents.

Did the plaintiff have ownership of a patent on the said substance?

Did the plaintiff have ownership rights for the product because they created it first?

Holding: The basis of this case ifs infringement of the patent. The court\'s responsibility was to establish whether there was any secrecy in the use of land or patent infringement of the ingredient under dispute; Butachlor, the emulsifier, and the solvent.

Rules: In Section 61 (1) subsection d. Of the patients Act of 1970, a patent may be overturned based on the fact that the subject of a claim of the total specification is not in itself an invention as captured by the Act meaning.

In section 64 subsection e. A patent may also be revoked if the claimed invention as claimed in the complete specification is not a new development with regard to what was in the public domain or used in India by the public prior to the date of the claim.

In Section 64 part 1 subsection e., a patent may be revoked if the claim of the complete specification does not involve any active step in the invention with regard to what was known prior to such a claim being lodged by an individual in India. The expression or elsewhere is left out because the patent was granted under Indian Law and the Patents and Designs Act 1911; which is prior to the Patents Act of 1970.

Reasoning: Butachlor, a herbicide CP 53619 was known publicly prior to patent no: 125381. It had been formulated and used and made publicly known via the report issued by the International Rice Institute in 1968. There had been no claim of patent or exclusive use of the compound then. In order to fulfil the requirements of an item being known publicly, there is no requirement that it must be so known as to be used by the public consumer. If the persons involved in the suit are aware of such an item, then it is sufficient; irrespective of whether they are men of science or just in pursuit of commercial gain. The part of the Indian public that as men involved in commerce or science were intent on being informed about herbicides that would abolish weeds but spare rice must have known about the Butachlor discovery. Thus, no secret existed with regard to the active ingredient Butachlor as the plaintiffs claimed. No patent of Butachlor had been cited, and the plaintiffs agreed to that fact.

The process of emulsification was well known. It was found that neither the compound Butachlor not the emulsification process was one that could be demanded by the plaintiffs as their creation. The emulsifier and the solvent had not been secrets. They, as the plaintiffs agreed on common market products. Thus, there were no secrets from the onset with regard to the use of the emulsifier and Butachlor. There had been no invention by the plaintiffs.

The solvent, the active ingredient, as well as the emulsifier had been known prior to the registration of the patent; the process was also known, the use known. The plaintiffs had only been covering up a product that whose mechanics were already in the public domain.

Facts: The report of the international Rice institute for the year 1969 demonstrated that herbicide CP 53619 came to be named Butachlor.

There was nothing secret about the active ingredient Butachlor

Emulsification was also well known and common procedure by which an herbicide could be used.

Ingredients, solvent, emulsifier, process, product and use were all known.