Colin Ong, Managing Partner, Dr Colin Ong Legal Services, and President, Arbitration Association of Brunei Darussalam, on intellectual property

Colin Ong, Managing Partner, Dr Colin Ong Legal Services, and President

The year 2012 has been a momentous one for the development of intellectual property law in Brunei Darussalam on several fronts. In order to nurture and protect its fledgling industry of inventors, the Patents Order 2011 was passed and came into force on January 1, 2012, and the former Inventions Act was repealed. Previously, there was no national patent system and patent protection was obtained by way of re-registration of a registered patent from the UK, European Patent Office, Malaysia and Singapore. The new Patents Order grants a term of 20 years from the filing date and applies the concept of absolute novelty whereby an invention is deemed novel if it has not been publicly written about or described in any other form worldwide before the effective filing date of the patent. There are a few exceptions to the absolute novelty requirement where the application is filed within 12 months of public disclosure, including situations in which disclosure was made unlawfully or by the inventor displaying the invention at an international exhibition. Currently, Section 102 of the Patents Order only allows for a Bruneian advocate and solicitor to deal with application of patents. It is illegal for any other person to attempt to solicit or attempt to assist a rights owner to register a patent. The Bruneian authorities have also come down hard on pirated VCDs and CDs. In 2012 the Brunei Municipal Board issued a warning that any vendor caught selling infringing materials could be punished by six months imprisonment and a $5000 fine under the Copyright Order. The authorities effectively forced many shops to close down and prosecuted the owners of such stores. However, this has not eradicated the consumption of such articles. Indeed, it has been said that this led to a larger exodus of the population to neighbouring Malaysian towns for weekend shopping trips. In relation to international contractual agreements, the use of arbitration as the main means of dispute resolution has steadily increased since the revision of the constitution in 2004, which provided the Bruneian government with complete immunity from being sued in a Bruneian court of law. This has meant that all contractual matters involving the Bruneian government are subject to arbitration.

Brunei Darussalam is a signatory to both the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards as well as the 1965 Washington Convention. The Arbitration Order 2009 regulates domestic arbitrations, and the International Arbitration Order 2009 regulates international arbitration. Both statutes are based on the UNCITRAL Model Law on International Commercial Arbitration and came into force in February of 2010. The arbitration orders are based on the principle that Bruneian courts may only support, but not interfere in, the arbitration process. Under the two pieces of legislation, the Arbitration Association of Brunei Darussalam has been statutorily designated as the default appointing body in the event of default or failure by the parties to appoint an arbitrator or a failure by the two appointed arbitrators to appoint a presiding arbitrator. To maintain a high standard of arbitration there is wide choice of international arbitrators who are mainly non-Bruneian nationals. The association works to improve arbitration standards and contribute to economic growth.

The majority of local law firms tend to deal with all areas of practice, including civil, criminal and family law, and in some cases Islamic matrimonial law. Larger law firms tend to deal with conveyancing matters as well as debt collection for car finance companies and banks. Smaller law firms tend to specialise in areas such as road traffic accident third-party claims, divorce, land development cases, disputes over inheritance and succession issues. An even smaller handful of law firms specialise purely in corporate and commercial law activities, including intellectual property law disputes and commercial litigation and arbitration. Section 19(2) (c) of the Legal Profession Act allows only Bruneian law firms and registered accountants (in person) as well as individuals (in person) to incorporate companies.

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Colin Ong

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The Report: Brunei Darussalam 2013

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