The Bangladesh Today (12-02-2018)
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LAW & PUBLIC MONdAy,<br />
FEBRuARy <strong>12</strong>, <strong>2018</strong><br />
5<br />
This week Your Legal Adviser is<br />
A.B.M Shahjahan Akanda (Masum)<br />
Advocate, Supreme Court of <strong>Bangladesh</strong>.<br />
He is the Head of the chamber of a renowned law firm,<br />
namely, 'Law for Nations', which has expertise mainly in<br />
banking law, tax law, commercial law, corporate law, family<br />
law, employment and labor law, land law,constitutional law,<br />
criminal law and in conducting litigations before courts of<br />
different hierarchies. He can be reached at - cell:01711459590,<br />
E-mail: law.abm@gmail.com.<br />
2nd Workshop on Legal<br />
Research & Advocacy Skills<br />
Hosted by NILS <strong>Bangladesh</strong><br />
QuERy :<br />
Dear Sir,<br />
I want to attain a patent registration. Please<br />
inform me the details.<br />
Regards<br />
Shariul Islam<br />
Dhaka<br />
OpINION :<br />
An application for a patent may be made by any<br />
person alone or jointly with any other person.<br />
<strong>The</strong> application must be made in the prescribed<br />
form, and must be filed at the Patent Office in the<br />
prescribed manner. <strong>The</strong> application must<br />
contain a declaration to the effect that the<br />
applicant is in possession of an invention,<br />
whereof he, or in the case of a joint application<br />
one at least of the applicants, claims to be the<br />
true and first inventor or the legal representative<br />
or assign of such inventor and for which he<br />
desires to obtain a patent, and must be<br />
accompanied by complete specification.<br />
Specifications:<br />
A complete specification must particularly<br />
describe and ascertain the nature of the<br />
invention and the manner in which the same is<br />
to be performed. <strong>The</strong> specification must<br />
commence with the title, and in the case of a<br />
complete specification must end with a distinct<br />
statement of the invention claimed. <strong>The</strong><br />
drawings can be supplied at any time before the<br />
acceptance of the application, but we suggest to<br />
file drawings at the time of application printed<br />
on tracing papers.<br />
PCT Application in <strong>Bangladesh</strong>: In case of<br />
claiming priority based on any application filed<br />
in any PCT countries the applicant must supply<br />
the information of PCT application at the time of<br />
filing the national application and submit<br />
certified copy of the specification of the foreign<br />
patent application within 90 days time from the<br />
date of filing application in <strong>Bangladesh</strong>.<br />
Filing Requirement:<br />
To file a Patent Application we need the<br />
followings:<br />
(a) Name of the inventor (applicant),<br />
(b) Address(s) and nationality of the inventors,<br />
(c) Two sets of specification and one set of<br />
drawing on tracing paper (transparent),<br />
(d) Legalized Deed of Assignment (if any),<br />
(e) Power of Attorney [Form - 31], you can<br />
download the authorization<br />
from this web by clicking download forms.<br />
(f) Certified copy of the foreign patent (in case<br />
of claiming priority)<br />
Advertisement on acceptance of application:<br />
On the acceptance of an application the<br />
Controller shall give notice thereof to the<br />
applicant and shall advertise the acceptance and<br />
with the drawings (if any) shall be open to public<br />
inspection.<br />
Opposition:Any person at any time within four<br />
months from the date of the advertisement of the<br />
acceptance of an application give notice at the<br />
Patent Office of opposition to the grant of the<br />
patent. <strong>The</strong> opponent must state the grounds of<br />
his opposition.<br />
Grant and sealing of patent:<br />
If there is no opposition a patent shall be<br />
granted, subject to such conditions as the<br />
authority thinks expedient, to the applicant, or in<br />
the case of a joint application to the applicants<br />
jointly, and the Controller shall cause the Patent<br />
to be sealed with the seal of the Patent Office.<br />
Term of patent:<br />
<strong>The</strong> term limited in every patent for the<br />
duration thereof is sixteen years from its date of<br />
application or the date of priority application.<br />
Renewal is required for fifth year before expiry of<br />
fourth year up to the 15 years. Grace period is 90<br />
days with late fees. In case of priority, the<br />
commencement of four years shall start from the<br />
date of priority application.<br />
<strong>The</strong> Network for International Law Students<br />
(NILS) is an international, independent, nonpolitical<br />
and non-profit organization operating<br />
in 26 different countries and expanding across<br />
six continents of the globe. <strong>The</strong> <strong>Bangladesh</strong><br />
Chapter of NILS has been successfully carrying<br />
out the operations of NILS in the country since<br />
2016. After the overwhelming success of<br />
hosting the 1st edition in November 2017, NILS<br />
<strong>Bangladesh</strong>, in collaboration with Department<br />
of Law, East West University (EWU) organized<br />
the 2nd edition of the Workshop on Legal<br />
Research and Advocacy Skills on January 26,<br />
<strong>2018</strong>. Around 100 law students from numerous<br />
public and private universities of <strong>Bangladesh</strong><br />
spontaneously participated in the workshop.<br />
<strong>The</strong> inaugural session of the workshop was<br />
conducted by Mr. Md. Pizuar Hossain,<br />
Lecturer, Department of Law, EWU on<br />
'Introduction to Legal Research and<br />
Methodology'. <strong>The</strong> session focused mainly<br />
upon techniques and methodologies of legal<br />
research and enabled the participants to get<br />
them acquainted with different aspects and<br />
tools of carrying out legal research<br />
independently.<br />
<strong>The</strong> next session was conducted by Mr.<br />
Mokarramus Shaklan, Advocate, Supreme<br />
Court of <strong>Bangladesh</strong> on '<strong>The</strong> Art of Mooting'.<br />
He spoke at length regarding mooting,<br />
techniques of drafting memorials, preparing<br />
for oral submissions before the judges and the<br />
impact of mooting in professional careers of<br />
legal practitioners.<br />
<strong>The</strong> final session was facilitated by Professor<br />
Dr. Tureen Afroz, Chairperson, Department of<br />
Law, EWU on '<strong>The</strong> Art of Advocacy'. She<br />
extensively discussed the technical know-hows<br />
of being a lawyer and underlined the basic<br />
court etiquettes required to be followed by the<br />
lawyers. She concluded her session by urging<br />
the students to never stop learning and sharing<br />
the knowledge with their peers.<br />
<strong>The</strong> closing ceremony of the workshop was<br />
chaired by Nasrin Sultana, President, NILS<br />
<strong>Bangladesh</strong> while Justice S. M. Mozibur<br />
Rahman, Honorable Justice, Supreme Court of<br />
<strong>Bangladesh</strong> graced the event as the guest of<br />
honor. In his speech, Justice Rahman lauded<br />
such initiatives undertaken by NILS<br />
<strong>Bangladesh</strong> and Department of Law, EWU and<br />
mentioned that this unique practice of teaching<br />
advocacy skills to law students would<br />
immensely boost their professional careers as<br />
lawyers. Ms. Nasrin Sultana, President, NILS<br />
<strong>Bangladesh</strong> also spoke at the ceremony<br />
highlighting its past activities and stated that in<br />
an age of globalization, it is essential to<br />
network with law students beyond borders.<br />
<strong>The</strong> Best Performer award was won by<br />
Maisha Tehmida Binte Zubair from BRAC<br />
University. <strong>The</strong> program ended after<br />
certificates were handed out to all the<br />
participants and tokens of appreciation were<br />
handed over to the chair of the closing<br />
ceremony and the facilitators of the workshop.<br />
NILS <strong>Bangladesh</strong> intends to host more such<br />
workshops and symposiums in near future.<br />
Expanding Investment Securities<br />
<strong>The</strong> Role of Investment Treaties and Investment Arbitration in <strong>Bangladesh</strong><br />
Md. MAMONOR RASHId<br />
Large-scale investments made in foreign jurisdictions face many<br />
risks, particularly when investing in countries with high levels of<br />
political and regulatory risk or developing judicial systems, as is<br />
often a concern for international investors entering certain Asian<br />
and African countries. In such circumstances, investors are<br />
particularly concerned about the legal protections that are available<br />
to them during the life of their investments. Bilateral and<br />
multilateral investment treaties ("BITs", "MITs") have become the<br />
principle vehicle to overcome these challenges and mitigate the<br />
risks of government intervention.<br />
BITs are international law instruments - treaties - agreed<br />
between two states. MITs are treaties agreed between more than<br />
two states. <strong>The</strong> purpose of BITs and MITs is to create a stable legal<br />
environment that fosters foreign direct investment. This is achieved<br />
by the "host state" (i.e. the state in which the investment is made)<br />
agreeing to provide certain guarantees and standards of protection<br />
to the investments of private foreign investors (i.e. those with the<br />
nationality of, or incorporation in, the "home state"). <strong>The</strong> investor<br />
is also provided with the opportunity to enforce its rights under the<br />
investment treaty against the host state through independent<br />
international investment arbitration. This is the major innovation<br />
of investment treaties, as traditionally it was only states that had<br />
standing to bring claims against each other.<br />
Rights and obligations under investment treaties are reciprocal,<br />
protecting the investments of investors from each state in the<br />
territory of the other state. Structuring investments correctly can<br />
maximise those rights and protections, and has become a modern<br />
commercial imperative when transacting internationally.<br />
Expanding investment securities:<br />
When structuring foreign investments, prudent investors will<br />
seek advice on the protections available under the domestic<br />
legislation of the host state as well as the investment treaties to<br />
which that host state is a party.<br />
In order to rely on the protections offered by a particular BIT, a<br />
foreign investor will need to qualify as a defined "investor", as<br />
mentioned above, and its "investment" must fall within the<br />
definition of the protected type of investments under the relevant<br />
BIT. Most BITs adopt a broad definition of qualifying investments,<br />
ranging from tangible to intangible property, company shares to<br />
contractual rights.<br />
<strong>The</strong> common categories of substantive BIT protections and<br />
guarantees owed by host states to foreign investors/ investments<br />
include the following:<br />
No expropriation without compensation: not to expropriate<br />
investments unless it is for a public purpose, in accordance with law<br />
and due process, with the provision of prompt, adequate and<br />
effective compensation;<br />
Fair and equitable treatment: all investors/ investments will be<br />
treated fairly and equitably (an open category that includes<br />
upholding legitimate expectations, the rule of law and good faith<br />
etc.);<br />
Full protection and security: including to maintain the investor's<br />
legal rights and protect physical assets from insurrection;<br />
No discrimination: not to adopt measures that discriminate<br />
investments based on type, industry, nationality etc.;<br />
National treatment: not to treat foreign investors/ investments<br />
less favourably that domestic investors/ investments;<br />
Most favoured nation treatment: the most favourable treatment<br />
available to investors/ investments of one state will be afforded to<br />
investors/ investments of other states;<br />
Umbrella clause: general commercial contracts with the host<br />
state and investor are elevated to protection under the BIT; and<br />
Free transfers: investors may convert investment returns into a<br />
currency of their choice and repatriate out of the host state.<br />
Laws and Regulations on Foreign direct Investment<br />
Major laws affecting foreign investment include: the Foreign<br />
Private Investment (Promotion and Protection) Act of 1980, the<br />
<strong>Bangladesh</strong> Export Processing Zones Authority Act of 1980, the<br />
Companies Act of 1994, the Telecommunications Act of 2001, the<br />
Industrial Policy Act of 2005, the Industrial Policy Act of 2010, and<br />
the <strong>Bangladesh</strong> Economic Zones Act 2010. <strong>The</strong> Industrial Policy<br />
Act of 2016 was approved by the Cabinet Committee on Industrial<br />
Purchase on February 24, 2016 and replaces the Industrial Policy<br />
of 2010.<br />
<strong>The</strong> Industrial Policy Act of 2016, which replaced the 2010 Act,<br />
offers incentives for "green", high-tech, or "transformative"<br />
industries. Foreign investors who invest $1 million or transfer $2<br />
million to a recognized financial institution can apply for<br />
<strong>Bangladesh</strong>i citizenship. <strong>The</strong> Government of <strong>Bangladesh</strong> will<br />
provide financial and policy support for high-priority industries<br />
(those that create large-scale employment and earn substantial<br />
export revenue) and creative (architecture, arts and antiques,<br />
fashion design, film and video, interactive laser software, software,<br />
and computer and media programming) industries. Specific<br />
importance will be given to agriculture and food processing, readymade<br />
garments (RMG), information and communication<br />
technology (ICT) and software, pharmaceuticals, leather and<br />
leather products, and jute and jute goods.<br />
International investment arbitration and dispute<br />
Settlement:<br />
International investment arbitration is a mechanism to resolve<br />
investment disputes between a foreign investor and the state<br />
hosting the investment. It is different in many respects from<br />
international commercial arbitration, which involves two private<br />
parties, usually corporations.<br />
ICSId Convention and New york Convention<br />
<strong>Bangladesh</strong> is a signatory to the International Convention for the<br />
Settlement of Disputes (ICSID) and it consented in May 1992 to the<br />
United Nations Convention for the Recognition and Enforcement<br />
of Foreign Arbitral Awards. Alternative dispute resolutions are<br />
possible under the <strong>Bangladesh</strong> Arbitration Act of 2001. <strong>The</strong> current<br />
legislation allows for enforcement of arbitral awards.<br />
Investor-State dispute Settlement<br />
<strong>Bangladesh</strong>i law allows contracts to refer dispute settlement to<br />
third country forums for resolution. <strong>Bangladesh</strong> is also a party to<br />
the South Asia Association for Regional Cooperation (SAARC)<br />
Agreement for the Establishment of an Arbitration Council, signed<br />
November 2005, which aims to establish a permanent center for<br />
alternative dispute resolution in one of the SAARC member<br />
countries.<br />
In practice, enforcement of arbitration results is applied unevenly<br />
and the government has challenged ICSID rulings, especially those<br />
that involve rulings against the government. <strong>The</strong> timeframe for<br />
dispute resolution is unpredictable and has no set limit. It can be<br />
done as quickly as a few months, but often takes years depending<br />
on the type of dispute. Anecdotal information indicates average<br />
resolution times can be as high as 16 years. Local courts may be<br />
biased against foreign investors in resolving disputes.<br />
<strong>Bangladesh</strong> is a signatory of the New York Convention and<br />
recognizes the enforcement of international arbitration awards.<br />
Domestic arbitration is under the authority of the District Judge<br />
Court bench and foreign arbitration is under the authority of the<br />
relevant High Court division of the Supreme Court of <strong>Bangladesh</strong>.<br />
Investors are also increasingly turning to the <strong>Bangladesh</strong><br />
International Arbitration Center (BIAC) for dispute resolution.<br />
BIAC is an independent arbitration center established by<br />
prominent local business leaders in April 2011 to improve<br />
commercial dispute resolution in <strong>Bangladesh</strong> to stimulate<br />
economic growth. <strong>The</strong> council committee is headed by the<br />
President of International Chamber of Commerce - <strong>Bangladesh</strong><br />
(ICC,B) and includes the presidents of other prominent chambers<br />
such as like Dhaka Chamber of Commerce and Industry (DCCI)<br />
and Metropolitan Chamber of Commerce and Industry (MCCI).<br />
<strong>The</strong> center operates under the <strong>Bangladesh</strong> Arbitration Act of 2001.<br />
According to BIAC, fast track cases are resolved in approximately<br />
six months while typical cases are resolved in one year. Major<br />
<strong>Bangladesh</strong>i trade and business associations such as the American<br />
Chamber of Commerce in <strong>Bangladesh</strong> (AmCham) can sometimes<br />
help to resolve transaction disputes.<br />
Author: Mr. Md. Mamonor Rashid has completed his Master of Laws by thesis<br />
(Equivalent to M.Phil) on International Commercial Arbitration from University<br />
Utara Malaysia with Post Graduate Scholarship. Associate; Bhuiyan& Mir Law<br />
Firm. President; "<strong>The</strong> Orator" (For Legal Minds). He is a devoted social worker.<br />
He has worked with many national and international NGO's including Amnesty<br />
International, United Nations Volunteer (UNV), International Centre for<br />
Diarrhoeal Disease Research, <strong>Bangladesh</strong> (icddr'b) and National Human Right<br />
Commission, <strong>Bangladesh</strong>. His areas of specializationareInternational Commercial<br />
Arbitration, Religious Arbitration, and Corporate Law. He is the Young<br />
Professional member of Singapore International Arbitration Centre (YSIAC),<br />
Singapore and Young International Arbitration Group (YIAG), London. Email<br />
Address: mamon_rashid@live.com