KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION BETWEEN CHELSEA TEA COMPANY (CLAIMANT) AND ALMOND TEA COMPANY (RESPONDENT) MEMORIAL FOR THE CLAIMANT

Transcription

1 THE 11 TH LAWASIA INTERNATIONAL MOOT COMPETITION KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION 2016 BETWEEN CHELSEA TEA COMPANY (CLAIMANT) AND ALMOND TEA COMPANY (RESPONDENT) MEMORIAL FOR THE CLAIMANT

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... 4 STATEMENT OF JURISDICTION QUESTIONS PRESENTED STATEMENT OF FACTS SUMMARY OF PLEADINGS PLEADINGS I. THE APPLICABLE PROCEDURAL LAW TO THE ARBITRATION IS SRI LANKAN LAW A. Sri Lanka is the seat of the present arbitration B. The procedural laws of Sri Lanka apply to this dispute II. THE LAW GOVERNING THE SUBSTANTIVE ISSUES IN THIS DISPUTE IS SRI LANKAN LAW A. The Tribunal should follow the rules prescribed by the laws of the seat to ascertain the substantive law B. Applying Sri Lankan national laws, Sri Lankan law governs the substantive issues arising out of the dispute III. THE DOUBLE-ACTIONABILITY RULE APPLIES TO CLAIMS IN TORT IV. ATC IS LIABLE FOR BREACH OF CLAUSE 4.2 OF THE AGREEMENT A. Clause 4.2 is enforceable as it is not an unlawful restraint of trade B. ATC has breached Clause 4.2 by distributing SAILOR S CEYLON (1) SAILOR S CEYLON is a competing good with CTC CEYLON (2) ATC s Mark is arguably similar to CTC s Lion Logo

3 C. Alternatively, ATC has breached Clause 4.2 under Malaysian law (1) Clause 4.2 is enforceable under Malaysian law (2) ATC has breached Clause 4.2 by distributing SAILOR S CEYLON V. ATC IS LIABLE FOR BREACH OF CLAUSE OF THE AGREEMENT A. Clause prohibits conduct amounting to trademark infringement B. ATC s Mark has infringed the Lion Logo under Sri Lankan law C. Alternatively, ATC has infringed the Lion Logo under Malaysian law VI. ATC HAS INFRINGED A GEOGRAPHICAL INDICATION BY ITS MISLEADING USE OF THE WORD CEYLON A. The applicable legislation is the Malaysian Geographical Indications Act B. Under the Act, Ceylon tea is a protected geographical indication C. ATC s use of the word Ceylon for tea manufactured in China is misleading VII. ATC IS LIABLE FOR THE TORT OF PASSING OFF A. The elements of the tort are satisfied under Sri Lankan law (1) CTC has sufficient goodwill associated with the use of its trademarks (2) ATC has misrepresented its goods as being CTC s products (3) CTC has suffered damage to its goodwill B. The elements of the tort are also satisfied under Malaysian law PRAYER FOR RELIEF

4 TABLE OF AUTHORITIES STATUTES Arbitration Act (No 11 of 1995) (Sri Lanka)... 18, 19, 20, 21, 22 Arbitration Act 1996 (c 23) (UK) Business and Professions Code (California) Contracts Act 1950 (Revised 1974) (Malaysia) Geographical Indications Act 2000 (Act 602 of 2000) (Malaysia)... 36, 37, 38, 40 Intellectual Property Act 2003 (No 36 of 2003) (Sri Lanka)... 27, 28, 33, 36, 38 Restatement (Second) Conflict of Laws Trade Marks Act (Cap 332, 2005 Rev Ed) (Singapore) Trade Marks Act 1976 (Act 175 of 1976) (Malaysia)... 33, 35 Trade Marks Act 1994 (c 26) (UK) ARBITRAL RULES Kuala Lumpur Regional Centre for Arbitration i-arbitration Rules... 17, 19, 20, 21, 23 UNCITRAL Arbitration Rules CASES Abdul Cader v The Madras Palayakat Company, Ltd [1933] 48 NLR Annakedde v Myappen (1932) 33 NLR , 23 BRG Brilliant Rubber Goods v BHPC Marketing [2015] 1 LNS Bridge v Deacons [1984] 1 AC British Sky Broadcasting Group v Sky Home Services [2006] EWHC Cadbury-Schweppes v Pub Squash Co [1981] 1 WLR

5 Chocosuisse Union v Maestro Swiss Chocolate Sdn Bhd [2010] 3 MLJ Chocosuisse Union v Maestro Swiss Chocolate Sdn Bhd [2013] 6 CLJ , 40 Commercial Plastics Ltd v Vincent [1965] 1 QB Compagnie Tunisienne de Navigation SA v Compagnie d'armement Maritime SA [1971] 1 AC Criminal Clothing v Aytan s Manufacturing (UK) Ltd [2005] EWHC Dickson v Pharmaceutical Society of Great Britiain [1970] 1 AC Distilleries Company of Sri Lanka v AS Mohammed Hassan CA 236/ Elgitread Lanka v Bino Tyres SC (Appeal) No. 106/ Esso Petroleum Co v Harper's Garage [1968] AC , 31 Fitch v Dewes [1921] 2 AC HFC Bank v Midland Bank [2000] FSR Intel Corp v Intelcard Systems Sdn Bhd [2004] 1 MLJ Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR James Fernando v Officer-in-Charge [1994] 3 Sri LR , 33 Ken Holdings Bhd v Sri Seltra Sdn Bhd [2014] 9 MLJ Le Mesurier v Le Mesurier (1895) 1 NLR Lipton v Rawther [1933] 35 NLR Littlewoods Organisation Ltd v Harris [1977] 1 WLR Lockheed Martin Corp v Raytheon Co [2010] 4 CLJ Lukmanjee v Aktiebalaige (1911) 14 NLR M I & M Corporation & Anor v A Mohamed Ibrahim [1964] MLJ M.S. Hebtulabhoy and Co Ltd v Stassen Exports Ltd SC Appeal No. 20/ Maestro Swiss Chocolate Sdn Bhd v Chocosuisse Union [2016] 3 CLJ

6 McCurry Restaurant (KL) Sdn Bhd v McDonalds Corporation [2009] 3 MLJ McEllistrim v Ballymacelligott [1919] AC Moroccanoil Israel Ltd v Aldi Stores Ltd [2014] EWHC PT Garuda Indonesia v Birgen Air [2002] 1 SLR Petrofina (Great Britain) Limited v Martin [1966] 2 WLR Phillips v Eyre (1870) LR 6 QB Phones 4U v Phone4U.co.uk Internet [2006] EWCA Civ Pure Beverages Company Ltd v K Dharmasiriwardena SC (CHC) Appeal No. 24 of Randenigala Distilleries Lanka v Distilleries Company of Sri Lanka SC (CHC) Appeal No. 38/ , 42, 43 Reckitt & Colman v Borden (1990) 1 WLR , 42, 44 Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC Ronbar Enterprises LD v Green [1954] 1 WLR Rotta Research Laboratorium SpA v Ho Tack Sien [2011] 1 LNS Sabel v Puma [1998] RPC Seet Chuan Seng v Teh Yih Jia Foods Manufacturing [1994] 2 MLJ Societa Esplosivi Industriali SpA v Ordnance Technologies (UK) Ltd 2004 WL SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 CLJ Stassen Exports Ltd v Lipton Ltd SC (CHC) Appeal No. 51/ Svenson Hair Center Sdn Bhd v Irene Chin Zee Ling [2008] 8 CLJ Syarikat Zamani v Yong Sze Fun [2006] 5 MLJ , 45 Symbion Pharmacy Services Pty Ltd v Idameneo [2011] FCA TFS Derivatives Limited v Simon Morgan [2004] EWHC The Commissioners of Inland Revenue v Muller & Co s Margarine Ltd [1901] AC

7 The Scotch Whisky Association v Golden Bottling Ltd [2006] 129 DLT Thevagnanasekaram v Kuppammal (1934) 36 NLR , 23 Tzortzis & Sykias v Monark Line A/B [1968] 1 Lloyd s Rep Watson v Prager [1991] 1 WLR Wilkinson Sword Ltd v Cripps & Lee Ltd [1982] FSR Worldwide Rota Dies Sdn Bhd v Ronald Ong Cheow Joon [2010] 8 MLJ ARBITRAL AWARDS Award in ICC Case No of 1984, 111 JDI (Clunet) 914 (ICC Int l Comm Arb) Award in ICC Case No of 1977, 104 JDI (Clunet) 947 (ICC Int l Comm Arb) Award in ICC Case No of 1976, 1 YB Comm Arb 128 (ICC Int l Comm Arb) Final Award in Case No of 1988, 13 YB Comm Arb 104, 106 (ICC Int l Comm Arb) ICC Case No. 5505, Preliminary Award, 1987, 13 YB Comm Arb , 18 TREATISES Christopher Wadlow, The Law of Passing-Off: Unfair Competition by Misrepresentation (Sweet & Maxwell, 2011)... 41, 43 David Llewelyn, Invisible Gold in Asia (Marshall Cavendish Business, 2010) Dicey, Morris and Collins on the Conflict of Laws (Lawrence Collins gen ed) (Sweet and Maxwell, 2012, 15th Ed) Gary Born, International Arbitration: Law and Practice (Kluwer Law International, 2012)... 19, 20 Gary Born, International Commercial Arbitration (Kluwer Law International, 2009) Kerly s Law of Trade Marks and Trade Names (Sweet & Maxwell, 2011, 15th Ed)

8 Kerly s Law of Trade Marks and Trade Names (Sweet & Maxwell, 6th Ed) Kim Lewison, The Interpretation of Contracts (Sweet & Maxwell, 2007, 4th Ed) Konrad Zweigert & Ulrich Drobnig, International Encyclopedia of Comparative Law: Installment 37 (Brill Archive, 2003)... 22, 23 Nigel Blackaby et al, Redfern and Hunter on International Arbitration (Oxford/New York: Oxford University Press, 2009, 5th Ed)... 17, 18 Norchaya Talib, Emerging Torts and the Changing Landscape in Law of Torts in Malaysia (Sweet & Maxwell Malaysia, 2010, 3rd Ed) Ruth Sullivan, Driedger on the Construction of Statutes (Butterworths, 1994, 3rd Ed) Susanna Leong, Intellectual Property Law of Singapore (Academy Publishing, 2013)... 35, 36 ARTICLES Claude Reymond, Where is an Arbitral Award Made? (1992) 106 LQR Doug Jones, Choosing the Law or Rules of Law to Govern the Substantive Rights of the Parties (2014) 26 SAcLJ Harisankar K.S., International Commercial Arbitration in Asia and the Choice of Law Determination Journal of International Arbitration 30, No. 6 (2013): Hasita De Alwis, Ceylon Tea - Sri Lanka s Best Known Geographical Indication, March 2013 (WIPO/GEO/BKK/13/INF/4) Lihini De Silva, Geographical Indications - Need of a Registration System for Sri Lanka in Proceedings in Law, 8th International Conference - KDU, Sri Lanka, 2015 (CL Goonasekara gen ed) (General Sir John Kotelawala Defence University, 2015) Michael Pryles, Limits to Party Autonomy in Arbitral Procedure (2007) 24(3) Journal of International Arbitration

9 Sanath Wijesinghe, The Protection on Geographical Indications in Developing Countries: The Case of Ceylon Tea (2015) 1 Multidisciplinary Law Journal Tapobrata Mukhopadhyay, The Possible Conflict of Law Rules Employed in International Commercial Arbitration to Discern the Governing Law: An Analysis (2010) Indian Journal of Arbitration Law REFERENCE MATERIALS Sri Lanka Tea Board website Sri Lanka, Copyright Committee Reports 2011, The Disclosure of Information Related to Infringement and Enforcement of Intellectual Property Rights in a Digital Environment and Enforcement Practice under the Uniform Legal Standards on Intellectual Property Enforcement on the Anti-Counterfeiting Trade Agreement (November 2011) The Merriam-Webster Dictionary (Merriam-Webster Inc, 2016)

10 STATEMENT OF JURISDICTION The parties, the Chelsea Tea Company ( CTC ) and the Almond Tea Company ( ATC ), have agreed to submit the present dispute to arbitration in accordance with the Kuala Lumpur Regional Centre for Arbitration i-arbitration Rules ( KLRCA i-arbitration Rules ). 10

11 QUESTIONS PRESENTED 1. Whether the procedural law applicable to the dispute is Sri Lankan law; 2. Whether the substantive law applicable to the dispute is Sri Lankan law; 3. Whether ATC has breached Clause 4.2 of the Agreement: a. whether Clause 4.2 is enforceable; and b. whether the distribution of SAILOR S CEYLON products bearing ATC s Mark is a breach of Clause Whether ATC has breached Clause of the Agreement: a. whether ATC s Mark so resembles CTC s Lion Logo as to be likely to cause confusion or deception. 5. Whether ATC s use of CEYLON is misleading and amounts to infringement of a geographical indication: a. whether Ceylon tea is protected from misleading use under the Malaysian Geographical Indications Act; and b. whether ATC s use of the word CEYLON misleads the public into believing that SAILOR S CEYLON products are Ceylon tea from Sri Lanka. 6. Whether ATC is liable for the tort of passing off. 11

12 STATEMENT OF FACTS 1. The Claimant, Chelsea Tea Company ( CTC ), is a company incorporated in Sri Lanka that manufactures Ceylon tea under the brand name CTC CEYLON. It is a trader approved by the Sri Lankan Tea Board ( SLTB ) to use the Lion Logo. The SLTB is a statutory institution that regulates the tea industry in Sri Lanka. In particular, SLTB administers strict quality standards of tea grown and manufactured in Sri Lanka. Only approved traders who conform to the stringent requirements of the SLTB are authorised to affix the Lion Logo on the packaging of their products. 2. The Respondent, Almond Tea Company ( ATC ), is a company incorporated in Singapore that manufactures and distributes tea in Singapore and Malaysia. It is not a trader approved by the SLTB to use the Lion Logo. 3. On 20 October 2008, CTC and ATC (each a Party and collectively, the Parties ) entered into a Distribution Agreement ( the Agreement ) after protracted negotiations. CTC was to supply CTC CEYLON products exclusively to ATC, who would distribute it within the Malaysian territory. The Agreement was entered into in the context of CTC s desire to expand into the Malaysian market. On the other hand, ATC entered into the Agreement seeking to reduce losses it suffered due to a fungal disease that devastated its tea plantations. 4. The Agreement contained several prohibitions on ATC in relation to the use of trademarks. Clause 4.2 prohibits ATC from being interested in competing products which bear an arguably similar mark to CTC CEYLON s for the duration of the Agreement and 12 months after its expiration in Malaysia. Clause prohibits ATC from using any trademarks in 12

13 Malaysia so resembling CTC s own trademarks as to be likely to cause confusion or deception. CTC duly performed its obligations and the Agreement expired on 20 October In the same year, CTC experienced an unexpected drop in the sales of CTC CEYLON despite steady growth in preceding years. An employee of CTC subsequently discovered tea products sold under the brand name SAILOR S CEYLON, which bore a striking resemblance to CTC CEYLON. SAILOR S CEYLON products were priced and packaged similarly to CTC CEYLON s products, and affixed with a mark similar to the Lion Logo. However, these products were manufactured in China. Upon investigation, CTC found that ATC was in fact the manufacturer of SAILOR S CEYLON and had been surreptitiously distributing it in Malaysia from 2012, during the time the Agreement was in force. 6. CTC wrote to ATC immediately upon the aforementioned discovery, highlighting this breach of the Agreement. ATC, however, replied with a denial of any wrongful conduct. ATC s distribution of SAILOR S CEYLON continues to this day. 7. Unable to resolve the matter, the Parties have submitted the dispute to binding arbitration. The place of arbitration is Sri Lanka, and the arbitration is to be conducted in accordance with the Kuala Lumpur Regional Centre for Arbitration i-arbitration Rules. 13

14 SUMMARY OF PLEADINGS A. The applicable procedural law to the arbitration is Sri Lankan law The Parties have designated the place of arbitration to be Sri Lanka. This is tantamount to designating Sri Lanka as the seat of arbitration, under Rule 6(1) of the KLRCA i-arbitration Rules. The choice of seat in this case evinces an implied intention for the procedural laws of that country to apply, and accordingly the procedural law governing this arbitration is Sri Lankan law. B. The law governing the substantive issues in this dispute is Sri Lankan law Section 24 of the Sri Lankan Arbitration Act is a mandatory provision which must be applied to ascertain the choice of law rules for the substantive issues in dispute. Applying Section 24, the Agreement in this case is governed by Sri Lankan law in the absence of the Parties agreement to the contrary. The Sri Lankan approach also applies to the conflict of law rules for tort claims. This entails the application of the double-actionability rule. C. Clause 4.2 of the Agreement is enforceable Under the common law test of reasonableness, Clause 4.2 is enforceable as the limits it placed on ATC were reasonable. Even if Malaysian law applies, Clause 4.2 is not void under the Malaysian Contracts Act, and is in fact enforceable by application of common law principles. 14

15 D. ATC has breached Clause 4.2 of the Agreement Clause 4.2 prohibits ATC from distributing competing products affixed with a mark which might possibly be confused with CTC s trademarks. ATC has contravened this clause by distributing tea products affixed with ATC s Mark, which bears many similar or identical elements with the Lion Logo. E. ATC has breached Clause of the Agreement Clause prohibits the use of a mark that consumers are likely to confuse with CTC s trademarks, analogous to the standard of statutory trademark infringement. ATC has contravened this clause by using ATC s Mark, which contains the same distinctive features as the Lion Logo and is therefore likely to confuse ordinary buyers. F. ATC has infringed a geographical indication by its misleading use of the word Ceylon Under the Malaysian Geographical Indications Act, the term Ceylon tea is protected against its misleading use as consumers recognise this as high-quality tea from Sri Lanka. ATC s use of the brand SAILOR S CEYLON to market its China-manufactured tea products is misleading, and amounts to infringement of a geographical indication. 15

16 G. ATC is liable for the tort of passing off The elements of passing off are satisfied under both Sri Lankan and Malaysian law. CTC has sufficient goodwill as a producer of five years standing in the Malaysian market. ATC has misrepresented its goods as being CTC s through the use of a similar mark and brand name, and CTC suffered damage through a diversion of sales. Applying the double-actionability rule, ATC can be held liable in tort. 16

17 PLEADINGS I. THE APPLICABLE PROCEDURAL LAW TO THE ARBITRATION IS SRI LANKAN LAW 1. The Claimant, the Chelsea Tea Company ( CTC ) and the Respondent, the Almond Tea Company ( ATC ) (collectively, the Parties ) have agreed that Sri Lanka is the seat of the present arbitration (A). As such, the procedural laws of Sri Lanka apply (B). A. Sri Lanka is the seat of the present arbitration 2. Under Rule 6(1) of the KLRCA i-arbitration Rules ( KLRCA Rules ), parties may agree on the seat of the arbitration. The place of arbitration bears the same meaning as the seat of arbitration, 1 barring an express distinction between the two in the arbitration agreement. 2 Thus, in ICC Case No of 1987, the tribunal held that a clause stipulating that [t]he arbitration will take place in Switzerland had the effect of the application of the Swiss mandatory provisions. 3 The tribunal had taken the clause to mean that the parties had chosen Switzerland to be the seat of the arbitration. 3. Under Clause 22 of the Distribution Agreement ( the Agreement ), the Parties have stipulated that [t]he place of arbitration shall be Colombo, Sri Lanka and that the KLRCA 1 Nigel Blackaby et al, Redfern and Hunter on International Arbitration (Oxford/New York: Oxford University Press, 2009, 5th Ed) ( Redfern and Hunter ) at [1.21]. 2 Redfern and Hunter at [3.59], citing the Singapore Court of Appeal s decision in PT Garuda Indonesia v Birgen Air [2002] 1 SLR ICC Case No. 5505, Preliminary Award, 1987, 13 YB Comm Arb

18 Rules shall apply. This clause is equivalent to specifying the seat of arbitration. Accordingly, the seat of the arbitration is Sri Lanka. B. The procedural laws of Sri Lanka apply to this dispute 4. Since the arbitration is seated in Sri Lanka, the procedural laws of Sri Lanka apply to this dispute. 5. An agreement as to the seat of arbitration evinces an implied intention to submit to the procedural laws of the seat. 4 The seat governs not merely the venue of the arbitration, but serves as the connection between the arbitration and the curial laws of that country Consequently, the Parties agreement for Sri Lanka to be the seat of arbitration is an implied indication that the procedural laws of Sri Lanka are to apply to the arbitration. The curial laws of Sri Lanka are found in the Sri Lankan Arbitration Act ( AA ). 6 These laws govern the procedural aspects of this dispute. II. THE LAW GOVERNING THE SUBSTANTIVE ISSUES IN THIS DISPUTE IS SRI LANKAN LAW 7. In the absence of express party choice, the Tribunal should follow the rules prescribed by the law of the seat to resolve a conflict of laws (A). In this case, the Sri Lankan approach in 4 Compagnie Tunisienne de Navigation S.A. v Compagnie d'armement Maritime S.A [1971] 1 AC 572 at 603; ICC Case No. 5505, Preliminary Award, 1987, 13 YB Comm Arb 110; Dicey, Morris and Collins on the Conflict of Laws (Lawrence Collins gen ed) (Sweet and Maxwell, 2012, 15th Ed) at [16-035]. 5 Redfern and Hunter at [3.56], citing Claude Reymond, Where is an Arbitral Award Made? (1992) 106 LQR 1 at 3. 6 Arbitration Act (No 11 of 1995) (Sri Lanka). Section 2(1) provides: The provision of this Act shall apply to all arbitration commenced in Sri Lanka. 18

19 the absence of party choice is to apply the substantive law of the seat to govern the disputes (B). A. The Tribunal should follow the rules prescribed by the law of the seat to ascertain the substantive law 8. In the absence of a choice-of-law clause within the contract, the Tribunal must first decide on the most appropriate mechanism by which to select the applicable substantive law. This decision must be made pursuant to the institutional rules and procedural laws that apply to the arbitration. 7 In the present case, the decision should be made pursuant to Sri Lankan procedural law. 9. Article 35(1) of the KLRCA Rules 8 vests the power in the Tribunal to directly select the law it deems to be most appropriate. By contrast, Section 24 of the Sri Lankan AA 9 confers discretion on the Tribunal to decide on the substantive law only to the extent agreed by the parties. 10 Even where parties have agreed to grant the Tribunal discretion, this is limited to choosing the conflict of laws rules it deems appropriate and not to directly decide the applicable law Doug Jones, Choosing the Law or Rules of Law to Govern the Substantive Rights of the Parties (2014) 26 SAcLJ 911 at [1]. 8 KLRCA Rules, Article 35(1), adopted from the UNCITRAL Arbitration Rules. 9 Supra n 6 at Section Supra n 6 at Section 24(3). 11 Gary Born, International Arbitration: Law and Practice (Kluwer Law International, 2012) ( Born, IALP ) at p

20 10. Where institutional rules conflict with mandatory laws, the latter should prevail. 12 It is trite that mandatory provisions in the procedural law can restrict party autonomy. 13 Similarly, the KLRCA Rules at Article 1(3) states:...where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail. 14 Accordingly, KLRCA Rules do not apply where they conflict with mandatory provisions in the law of the seat. 11. Section 24 of the Sri Lankan AA is one such mandatory provision. This section provides: 15 (1) An arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as referring to the substantive law of that State and not to its conflict of laws rules. (2) Failing any designation by the parties to any arbitrators agreement, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable. (3) The provisions of subsections (1) and (2) shall apply only to the extent agreed to by the parties [emphasis added]. 12 Born, IALP at p Michael Pryles, Limits to Party Autonomy in Arbitral Procedure (2007) 24(3) Journal of International Arbitration at p KLRCA Rules, Article 1(3). 15 Supra n 6 at Section

21 12. Crucially, each of these subsections uses the word shall rather than may. Within Sri Lankan procedural law, a provision of the AA is mandatory where it is worded in a manner to suggest it shall rather than may apply to arbitrations seated in Sri Lanka. In Elgitread Lanka v Bino Tyres, 16 the Supreme Court of Sri Lanka held that Section 4 of the AA 17 (on arbitrability of matters in dispute) was not a mandatory provision. The Court reasoned that Section 4, which stated that any dispute may be determined by arbitration [emphasis added], was not a mandatory provision because of the operative word may used in Section 4 as opposed to the word shall being used in other provisions within the Act Applying the reasoning above, Section 24 is similarly a mandatory provision. Accordingly, this must be applied instead of the institutional rules prescribed by the KLRCA. B. Applying Sri Lankan national laws, Sri Lankan law governs the substantive issues arising from the dispute 14. Applying Sri Lankan procedural law, in the absence of parties agreement on choice of law, the Tribunal is not empowered to exercise discretion to choose the substantive law governing the issues arising from the dispute. Rather, the Tribunal should apply the substantive law of the seat of the arbitration. In the present case, this is Sri Lankan law. 15. Under Section 24(3) of the Sri Lankan AA, failing an agreement by the parties to designate discretionary powers to the Tribunal to resolve the choice of law, the Tribunal is not at liberty to choose the substantive law on their behalf. Consequently, where the parties are 16 SC (Appeal) No. 106/ Supra n 6 at Section Supra n 16 at p 9. 21

22 silent as to choice of law, Sri Lankan law is applied to govern the issues arising from the dispute. 19 As Greenberg, Kee and Weeramantry 20 observe: [Sri Lanka has] adopted the approach of requiring arbitral tribunals to apply [its] local laws in the absence of a different choice by the parties This position was one preferred in England before the enactment of the English Arbitration Act 1996, 22 and remains presently applicable as Sri Lankan choice of law rules correspond with traditional English principles. 23 The same approach has also been followed in a multitude of arbitral awards. 24 This is based on the reasoning that parties designation of seat may be seen as an indirect choice of substantive law, as parties would have the state of the place of arbitration in mind and would presumably recognise a tendency of arbitrators sitting in that state to apply the local laws The Parties have not designated a choice of law to govern the substantive issues in dispute, but have simply agreed that Sri Lanka shall be the seat of arbitration, in accordance with 19 Tapobrata Mukhopadhyay, The Possible Conflict Of Law Rules Employed in International Commercial Arbitration to Discern the Governing Law: An Analysis (2010) Indian Journal of Arbitration Law at p 3, citing the Sri Lankan AA, Section 24(3): A more recent extension of this rule has been to bypass the conflict of law rules altogether and apply the substantive law of the seat of arbitration. ; Harisankar K.S., International Commercial Arbitration in Asia and the Choice of Law Determination Journal of International Arbitration 30, No. 6 (2013): at p Simon Greenberg, Christopher Kee, Romesh Weeramantry, International Commercial Arbitration: An Asia- Pacific Perspective (Cambridge University Press, 2011) ( Greenberg ). 21 Greenberg at [3.33]. 22 Arbitration Act 1996 (c 23) (UK). See also Tzortzis & Sykias v Monark Line A/B [1968] 1 Lloyd s Rep. 337, 413: [the choice of an arbitral seat] raises an irresistible inference which overrides all factors, Gary Born, International Commercial Arbitration (Kluwer Law International, 2009) ( Born, ICA ) at p Konrad Zweigert & Ulrich Drobnig, International Encyclopedia of Comparative Law: Installment 37 (Brill Archive, 2003) at S-133: The private international law applied in Sri Lanka corresponds to the rules recognised by English courts, citing Annakedde v Myappen (1932) 33 NLR 198; Thevagnanasekaram v Kuppammal (1934) 36 NLR 337; Le Mesurier v Le Mesurier (1895) 1 NLR See, eg, Award in ICC Case No of 1976, 1 YB Comm Arb 128 (ICC Int l Comm Arb); Award in Case No of 1984, 111 JDI (Clunet) 914 (ICC Int l Comm Arb); Award in Case No of 1977, 104 JDI (Clunet) 947 (ICC Int l Comm Arb); Final Award in Case No of 1988, 13 YB Comm Arb 104, 106 (ICC Int l Comm Arb). 25 Born, ICA at p 2639, citing Restatement (Second) Conflict of Laws 218 Comment (b) (1971). 22

23 KLRCA Rules. 26 This is not an expression of choice of substantive law. Thus, the law of the seat, Sri Lankan law, applies to govern the substantive issues in this dispute. III. THE DOUBLE-ACTIONABILITY RULE APPLIES TO CLAIMS IN TORT 18. Where claims in tort in the present dispute are concerned, the double-actionability rule should be applied. In the absence of an express choice-of-law clause for non-contractual claims, the Tribunal should apply the rules available under the contract s governing law to determine the applicable law for tortious claims. 27 Under Sri Lankan law, which governs the contract in the present case, the conflict of law rules for tortious claims will require the double-actionability rule to apply. 19. Sri Lankan conflict of law rules [correspond] to the rules recognised by English courts. 28 The English courts in turn apply the double-actionability rule, which requires that a tort be actionable in both the law of the forum and in the lex loci delicti (the place where the tort was committed). 29 In the context of arbitration, the law of the seat replaces the law of the forum. Actionability under the lex loci requires that civil liability can be established under the foreign law, even where such liability is not strictly tortious The law of the seat is Sri Lankan law. The lex loci delicti is Malaysia as ATC s tortious conduct, the distribution of SAILOR S CEYLON, occurred within Malaysia. 31 Accordingly, the tort must be actionable under the law of both jurisdictions. 26 Appendix A, Clause Greenberg at [3.86]. 28 Supra n Phillips v Eyre (1870) LR 6 QB 1 at Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 at Moot Problem at [14]. 23

24 IV. ATC IS LIABLE FOR BREACH OF CLAUSE 4.2 OF THE AGREEMENT 21. Clause 4.2 of the Agreement is enforceable as it is not an unlawful restraint of trade (A). ATC has breached Clause 4.2 by distributing SAILOR S CEYLON (B). Even if Malaysian law applies, ATC is still in breach of Clause 4.2 (C). A. Clause 4.2 is enforceable as it is not an unlawful restraint of trade 22. Under Sri Lankan law, a restraint of trade clause will be upheld if it is reasonable. 32 A party relying on such a clause need only prove that it protects a legitimate interest, 33 and that the scope of the restraint is reasonable in light of the parties interests In supplier-distributor relationships, legitimate interest exists in protecting the stability of the supplier s customer lists. 35 As an exclusive supplier of CTC CEYLON, CTC has a legitimate interest in protecting their customer lists for these products. This interest is also apparent in provisions such as Clause 11 of the Agreement, which requires ATC to maintain a customer database for CTC s use Hentley Garments Ltd v JSA [1980] 2 Sri LR 145 ( Hentley Garments ) at 152, citing the position in Thorsten Nordenfelt v Maxim Nordenfelt Gun and Ammunition Company [1894] 1 AC 535 at 565 ( Nordenfelt ); Coats Thread Lanka v Ajith Upashantha Samarasundara SC Appeal No 18/2009 ( Coats Thread ) at 4-5, also citing the position in Nordenfelt. 33 Petrofina (Great Britain) Limited v Martin [1966] 2 WLR 318 at 337; Dickson v Pharmaceutical Society [1970] 1 AC 403 at 416; Bridge v Deacons [1984] 1 AC 705 at Esso Petroleum Co Ltd v Harper s Garage [1967] 1 All ER 699 ( Esso Petroleum ) at McEllistrim v Ballymacelligott [1919] AC 548 at Appendix A, Clause

25 24. Clause 4.2 is also reasonable in relation to the Parties interests. An assessment of reasonableness considers factors such as the geographical scope of the restriction 37 and the duration of the restraint. 38 The scope of restraint here is narrow, as ATC is not prevented from manufacturing or distributing all competing products, but only those affixed with an arguably similar mark to the Lion Logo. ATC would be able to sell other types of tea products in Malaysia, and has in fact been doing so Further, a 12-month post-contractual restraint on ATC is not unreasonably long. In Societa Esplosivi Industriali SpA v Ordnance Technologies (UK) Ltd, 40 which concerned a defence project to develop cutting edge technology, a nine-year restraint was imposed on one contracting party in light of the fact that the project would take at least 20 years to complete. 41 That restraint was held to be reasonable. Here, the Agreement between ATC and CTC was for five years as this was the amount of time needed to establish CTC CEYLON s presence in the Malaysian market. A restraint of a mere 12 months on ATC after the Agreement is thus reasonable, given the length of time already needed to achieve the aim of the Agreement. 26. In totality, Clause 4.2 is reasonable in relation to the Parties interests. Accordingly, it is enforceable against ATC under Sri Lankan law. 37 Coats Thread at 4-5; Commercial Plastics Ltd v Vincent [1965] 1 QB 623 at 645; Fitch v Dewes [1921] 2 AC 158 at 168; Littlewoods Organisation Ltd v Harris [1977] 1 WLR 1472 at Coats Thread at 4-5; Watson v Prager [1991] 1 WLR 726 at ; Ronbar Enterprises LD v Green [1954] 1 WLR 815 at Additional Clarifications, Question WL Id. at [146]. 25

26 B. ATC has breached Clause 4.2 by distributing SAILOR S CEYLON 27. The law governing contractual breaches in Sri Lanka is materially the same as that in England. 42 Clause 4.2 prohibits ATC from distributing a competing good that is either affixed with the Trade Marks 43 or any other arguably similar mark. In distributing SAILOR S CEYLON, ATC is in breach of this clause. (1) SAILOR S CEYLON is a competing good with CTC CEYLON 28. It is a question of fact whether two products are competing. 44 Products are more likely to compete if they have similar qualities, or are marketed to the same target audience SAILOR S CEYLON and CTC CEYLON are both black tea products distributed in the Malaysian market. 46 They appeal to the same segment of the consuming public given that they are in the same price range 47 and are sold by similar retailers. 48 Thus, SAILOR S CEYLON is a competing product. 42 Distilleries Company of Sri Lanka v AS Mohammed Hassan CA 236/1997 at 11, This includes CTC CEYLON and the Lion Logo: see Appendix A, Clause TFS Derivatives Limited v Simon Morgan [2004] EWHC 3181 at [45]. 45 Ibid. 46 Clarifications, Questions 8 and Additional Clarifications, Question Additional Clarifications, Questions 17 and

27 (2) ATC s Mark is arguably similar to CTC s Lion Logo 30. Clause 4.2 does not merely proscribe the use of identical marks, but also marks that are arguably similar to CTC s trademarks. This is a prohibition on the use of marks that may give rise to the possibility of confusion with CTC s trademarks. 31. It is an accepted principle that in comparing two trademarks, courts must consider them in light of their visual and conceptual similarities. 49 This is assessed from the perspective of an ordinary consumer The Parties, however, expressly provided that a mark need only be arguably similar to contravene Clause 4.2. According to Sri Lankan principles of contractual interpretation, the standard of an arguably similar mark must be interpreted in accordance with its plain and ordinary meaning and the surrounding context. 51 The plain and ordinary meaning of the word arguably is possibly true ; 52 hence on a literal reading, Clause 4.2 would thus prohibit ATC from using marks that are possibly similar to CTC s trademarks. 33. The language of Clause 4.2 shows that the threshold of similarity within the provision was intended to be different from that of trademark infringement. Under the Sri Lankan Intellectual Property Act ( IPA ), 53 trademark infringement occurs where the similarity is 49 Stassen Exports Ltd v Lipton Ltd SC (CHC) Appeal No. 51/2006; Kerly s Law of Trade Marks and Trade Names (Sweet & Maxwell, 2011, 15th Ed), citing Sabel v Puma [1998] RPC Suby and Anor v T. Suby Ltd [1980] 2 Sri LR 65 ( Suby ). 51 Pure Beverages Company Ltd v K Dharmasiriwardena SC (CHC) Appeal No. 24 of 2004 at 7-8; Kim Lewison, The Interpretation of Contracts (Sweet & Maxwell, 2007, 4th Ed) at [5.12]. 52 The Merriam-Webster Dictionary (Merriam-Webster Inc, 2016). 53 Intellectual Property Act 2003 (No 36 of 2003) (Sri Lanka). 27

28 likely to confuse or deceive. 54 This is a higher standard than what is required of an arguably similar mark. 34. Instead, the words arguable similarity within Clause 4.2 evince an intention for a low threshold to apply. In Symbion Pharmacy Services Pty Ltd v Idameneo, 55 a contractual provision prohibiting the use of a mark similar to or capable of being confused with another mark was held by the Federal Court of Australia to demonstrate the parties conscious intention to introduce a lower standard of similarity than that in the Trade Marks Act of Australia. 56 This is especially the case since the Parties had already worded a different clause, Clause 9.3.7, to encompass a standard more analogous to that of statutory trademark infringement Further, a contextual reading of Clause 4.2 also supports the interpretation that it prohibits the use of possibly confusing marks. Clause 4 as a whole imposes restrictions on ATC as part of the exclusive distributorship. Clauses 4.1 and 4.3 proscribe the possibility of ATC injuring CTC s corporate image, whether by sourcing for CTC CEYLON elsewhere 58 or by using CTC s name without its supervision. 59 Clause 4.2 should also be read as preventing the possibility of consumers being confused by ATC distributing competing products with marks bearing any resemblance to the Lion Logo. Thus, an arguably similar mark will have been used so long as there is enough similarity to possibly confuse consumers. 54 Suby at p 69-70, interpreting Section 121 of the IPA. 55 [2011] FCA Id. at [36]. 57 Appendix A, Clause Appendix A, Clause Appendix A, Clause

29 36. Applying this standard, ATC s mark is arguably similar to the Lion Logo. The extensive visual and conceptual similarities include: (a) equally small sizes, measuring 4cm 2 on a 100cm 2 surface; 60 (b) the same manner of affixation on packaging; 61 (c) the main image of a lion facing the same direction; (d) capital text denoting a symbol of quality ; (e) colour; and (f) encasement in a black quadrilateral border. 37. Crucially, both Marks use the central pictorial device of the lion as the most prominent feature. This is a material factor in establishing similarity of marks, according to the Sri Lankan Court of Appeal in James Fernando v Officer-in-Charge ( James Fernando ). 62 To an ordinary consumer, there is nothing especially distinguishable about the posture and arrangement of the lions on the Marks. This would possibly confuse such consumers between ATC s Mark and the Lion Logo. 38. ATC s Mark is therefore arguably similar to the Lion Logo, and ATC s use of this Mark on SAILOR S CEYLON is a breach of Clause 4.2 of the Agreement. 60 Additional Clarifications, Question Clarifications, Question 7 and [1994] 3 Sri LR 35 at

30 C. Alternatively, ATC has breached Clause 4.2 under Malaysian law 39. Alternatively, if Malaysian law governs the Agreement, ATC is nonetheless liable for a breach of Clause 4.2. (1) Clause 4.2 is enforceable under Malaysian law 40. Clause 4.2 is enforceable in Malaysia as it does not fall within Section 28 of the Malaysian Contracts Act This section provides that an agreement to restrain a person from exercising a lawful profession, trade or business is to that extent void. 63 However, Section 28 does not render Clause 4.2 void in the present case as the provision applies only where the restraint is of a party s entire business. 41. As observed by Professor Visu Sinnadurai, a former Malaysian High Court judge, Section 28 of the Malaysian Contracts Act is very similar to Section of the Californian Business and Professions Code. 64 However, Section only applies where a person is restrained from pursuing an entire trade, business or profession and conversely does not apply when he is restrained only as to some part of it. 65 Reasoning by analogy, Section 28 of the Malaysian Contracts Act should only apply when a clause purports to restrain the entire business of the affected party. 63 Contracts Act 1950 (Revised 1974) (Malaysia) Section Visu Sinnadurai, Law of Contract in Malaysia and Singapore (Butterworths, 2003, 2 nd Ed) ( Sinnadurai ) at p 494. Section of the Californian Business and Professions Code states that: Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void. 65 Sinnadurai at p

31 42. As noted above, Clause 4.2 does not restrict ATC from conducting its entire business as ATC also sells other types of products not affected by Clause Section 28 is thus of no application in the present case. 43. The enforceability of Clause 4.2 should instead be governed by the English common law test of reasonableness. In Worldwide Rota Dies Sdn Bhd v Ronald Ong Cheow Joon, 67 the Kuala Lumpur High Court endorsed this test in determining the enforceability of clauses in restraint of trade that prevented the misuse of business connections. 68 The Court observed that there must be some measure of flexibility in the approach to Section 28 of the Contracts Act, and proceeded to apply the test of reasonableness in Esso Petroleum Co v Harper s Garage to the facts Applying this test, Clause 4.2 is enforceable under Malaysian law as it protects CTC s legitimate interest, and is reasonable in relation to the Parties interests. 70 (2) ATC has breached Clause 4.2 by distributing SAILOR S CEYLON 45. The approach to contractual interpretation in Malaysia is materially the same as in Sri Lankan law. Contractual terms are prescribed their ordinary meaning, as understood by a reasonable person within the context. 71 Under Malaysian law, Clause 4.2 would also prevent ATC from becoming interested in competing products with a possibly confusing mark Claimant Memorial at [24]. 67 [2010] 8 MLJ Id. at [126] [133]. 69 Supra n 67 at [129], citing Esso Petroleum. 70 Claimant Memorial at [22] [26]. 71 SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 CLJ 177 at [27], citing Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at Claimant Memorial at [30] [35]. 31

32 Goods are also understood to be competing when they share the same markets and target consumers. 73 For the reasons enumerated earlier, SAILOR S CEYLON competes with CTC CEYLON in Malaysia As in Sri Lanka, the similarity of marks under Malaysian law is also premised on visual, conceptual, and phonetic similarity. 75 ATC s Mark is one such trademark with similarities that make it possibly confusing with the Lion Logo Thus, if Malaysian law applies, ATC has also breached Clause 4.2 by its distribution of SAILOR S CEYLON. V. ATC IS LIABLE FOR BREACH OF CLAUSE OF THE AGREEMENT 48. Clause of the Agreement prohibits conduct amounting to trademark infringement (A). The use of ATC s Mark is an infringement of the Lion Logo in breach of Clause whether under Sri Lankan (B) or Malaysian law (C). A. Clause prohibits conduct amounting to trademark infringement 49. Clause provides that ATC must not use in Malaysia any trade marks so resembling the Trade Marks (of CTC) as to be likely to cause confusion or deception. The same standard is used by Sri Lankan courts in assessing whether there has been a trademark 73 Svenson Hair Center Sdn Bhd v Irene Chin Zee Ling [2008] 8 CLJ 386 at [3]. 74 Claimant Memorial at [29]. 75 BRG Brilliant Rubber Goods v BHPC Marketing [2015] 1 LNS 423 at [25]. 76 Claimant Memorial at [36] [38]. 32

33 infringement under Section 121 of the Sri Lankan IPA. 77 The requirement of being likely to confuse or deceive also features in a plethora of legislation dealing with trademark infringement. 78 By choosing to word Clause in this manner, the Parties evinced an intention to peg the standard of similarity in this provision to that of trademark infringement. 50. The elements of trademark infringement are thus applicable in assessing whether there has been a breach of Clause B. ATC s Mark has infringed the Lion Logo under Sri Lankan law 51. The test for trademark infringement is whether a person, not having the two marks side by side for comparison, would be deceived into thinking that one mark was the same as the other. 79 Even when two marks bear differences in detail, infringement may occur if the main idea of the two marks as perceived by consumers is the same. 80 This is especially so where the ultimate purchasers of tea products are merely ordinary consumers buying a packet of tea in common use Contextual factors also influence how the marks are seen by consumers. As observed by the Sri Lankan Court of Appeal in Lukmanjee v Aktiebalaige, 82 the trademarks must be compared according to how they would appear in actual use Suby at See, eg, Trade Marks Act 1976 (Act 175 of 1976) (Malaysia) Section 38; Trade Marks Act (Cap 332, 2005 Rev Ed) (Singapore) Section 27(2); Trade Marks Act 1994 (c 26) (UK) Section 10(2). 79 James Fernando at 39; Lipton v Rawther [1933] 35 NLR 129 ( Lipton ) at James Fernando at 39; Abdul Cader v The Madras Palayakat Company, Ltd [1933] 48 NLR 35 at Suby at (1911) 14 NLR Id. at 415; see also Lipton at 131, citing Kerly s Law of Trade Marks and Trade Names (Sweet & Maxwell, 6th Ed) at p

34 53. The main impression left by the Lion Logo and ATC s Mark is that both are designed and used as a seal of quality. As noted earlier, there are several significant overlapping visual and conceptual similarities of the Marks. 84 In contrast, the differences between the Marks lie only in specific details, such as the words used, the features of each lion and the exact proportions of the border. Such differences are easily overlooked given the small size of the Marks. 54. Even if these differences are noticed, ATC s Mark may be mistaken as a modification of the Lion Logo. In Suby, the applicant attempted to register a trademark of a cowboy in respect of tea products, though there already existed a trademark of a turban-headed boy for such goods. The Court held that there was a likelihood of confusion as the central distinctive feature of the trademark, namely the picture of a young boy, was the same across both marks. Crucially, while the two marks had many differences in surrounding details, this did not detract from the likelihood of confusion as such variations might not unreasonably be supposed to have been made by the owners of the plaintiff's trade mark themselves for reasons of their own. 85 Applying this reasoning, ATC s Mark may still deceive consumers by appearing to be a variant of the Lion Logo. 55. Therefore, ATC s Mark conveys the same impression as the Lion Logo and would likely confuse ordinary consumers. ATC is accordingly liable for breach of Clause Claimant Memorial at [36] [37]. 85 Suby at

35 C. Alternatively, ATC has infringed the Lion Logo under Malaysian law 56. If Malaysian law applies to the dispute, ATC s Mark is nonetheless still an infringing mark. The standard of similarity in Clause 9.3.7, prohibiting a mark causing the likelihood of confusion, also features in the Malaysian Trade Marks Act. 86 The applicable test is whether the average consumer, in his general recollection of the marks, would have the same impression of them and thus believe that one was the same as the other. 87 This is comparable to the test laid down in Sri Lanka for trademark infringement Thus, by the same reasoning and applying the same facts, ATC s Mark is likely to cause confusion or deception with CTC s Lion Logo. 89 ATC is thus in breach of Clause even if Malaysian law applies. VI. ATC HAS INFRINGED A GEOGRAPHICAL INDICATION BY ITS MISLEADING USE OF THE WORD CEYLON 58. Geographical indications ( GIs ) are labels that serve as important marketing tools, conveying that a product originates from a particular place and hence bears special characteristics. 90 Such products have a reputation for high quality, a position painstakingly built up by local producers over time. 91 Other than benefiting producers, GIs are also a matter of economic importance and national pride for the countries where these goods 86 Trade Marks Act 1976 (Act 175 of 1976) (Malaysia), Section M I & M Corporation & Anor v A Mohamed Ibrahim [1964] MLJ 392; Rotta Research Laboratorium SpA v Ho Tack Sien [2011] 1 LNS 597 at [8.3.10] [8.3.11]. 88 Claimant Memorial at [51]. 89 Claimant Memorial at [53] [54]. 90 Susanna Leong, Intellectual Property Law of Singapore (Academy Publishing, 2013) at [34.002]. 91 Lihini De Silva, Geographical Indications - Need of a Registration System for Sri Lanka in Proceedings in Law, 8th International Conference - KDU, Sri Lanka, 2015 (CL Goonasekara gen ed) (General Sir John Kotelawala Defence University, 2015) at p

36 originate. 92 Ceylon tea is a well-known GI for tea grown and manufactured in Sri Lanka, and ATC s attempt to ride on the goodwill of this label by using the word Ceylon on its products amounts to an infringement of this intellectual property right. 59. The applicable legislation is the Malaysian Geographical Indications Act 2000 ( GIA ) 93 (A). Under the GIA, Ceylon tea is protected as a GI (B). ATC is liable under the GIA for its misleading use of Ceylon on its tea products (C). A. The applicable legislation is the Malaysian Geographical Indications Act 60. The Parties have agreed that disputes shall be governed by and construed according to the relevant applicable legislation. 94 This is an express choice for statutory claims to be governed by domestic statutes applicable to the conduct complained of. This choice must be upheld as party autonomy extends to the choice-of-law for statutory claims The relevant applicable legislation in this claim is the GIA, which presumptively applies to infringing conduct within the Malaysian territory. 96 This is consistent with the territorial nature of intellectual property law, as affirmed by Malaysian courts. 97 Further, the only other applicable legislation to sanction ATC s conduct is the Sri Lankan IPA, but the IPA in 92 Supra n 90 at [34.023] [34.024]. 93 Geographical Indications Act 2000 (Act 602 of 2000) (Malaysia). 94 Appendix A, Clause Greenberg at [3.79]. 96 A presumption exists that legislation applies to all things and events within the boundaries of an enacting jurisdiction and against extraterritorial application: Ruth Sullivan, Driedger on the Construction of Statutes (Butterworths, 1994, 3rd Ed) at p Lockheed Martin Corp v Raytheon Co [2010] 4 CLJ