Wednesday, 29 April 2009

Darren Olivier

West Africa Troubles

The Associated Press carries a depressing article which reports how elite soldiers in Guinea are taking advantage of an anti-corruption drive to rape and pillage. "Often intoxicated and usually wearing red berets belonging to elite security units, the soldiers stole "cars, computers, generators, medicines, jewelry, cash, mobile phones, and large quantities of wholesale and retail merchandise," the group [Human Rights Watch] said. The contents of some roadside shops were "emptied into vehicles driven by the military." "Some victims have been targeted because they were suspected of involvement in trafficking drugs or counterfeit medicines, but many cases appeared unrelated to the crackdown, the rights group said." Take a PROZAC when reading further here.

A group in Nigeria may be responsible for producing superior quality counterfeit $100 notes for circulation in Vermont (US), according to German officials in Berlin. (Source: here). If the source of the superior bills is correct then how can the Nigerian government persuade the counterfeiters to exploit their technology in a lawful, more meaningful and more profitable way?
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Tuesday, 28 April 2009

Darren Olivier

Tuesday snacks

Rachel Keeler writing for the impressive Ratio Magazine provides a useful summary of the issues facing the EAC when contemplating EPAs "EAC Regional: Private Sector Ambivalent on EPAs". George Omondi reporting in Business Daily reports on the upcoming July deadlines for signing these agreements here. This blog ponders whether the global economic crisis strengthens or weakens African negotiating positions in the discussions over EPAs?

A note on IPKAT has informed Afro-IP of The 1709 Blog, a blog dedicated to the discussion of copyright. 1709 was apparently the date copyright was "invented" ... or was it? The comment provides The 1709 Blog's first topic of debate. Afro-IP wishes them well.

The Nation reports that Kenya lost more than Sh70bn’ as a result of counterfeiting activities last year, which include fake medicines. One wonders what India's anti-counterfeit legislation campaigners have to say about this statistic? Read more about India's protest over Kenya's counterfeit legislation here and more recently here?

Finally, voting has been completed in South Africa with a landslide win for the ANC. Zuma will appoint his new cabinet and one wonders what implications his choices may have on the intellectual property regime in South Africa. A number of Mbeki supporters still hold key roles in government. Would any changes reflect changing attitudes towards IP or changes in legislation? Zuma is touted as a man of the people - is TK high on his agenda? Comments welcome.
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Monday, 27 April 2009


Mauritius launches IP sensitivity drive

The Institute of International Trade reports that the Mauritian Education and Culture Minister, Vasant Bunwaree, has launched a public outreach campaign to sensitise the local business community and the public concerning the need to protect and enforce intellectual property rights and to draw their attention to the hazards of counterfeit products. The US Embassy in Port-Louis has granted US$16,000 to the Mauritian Society of Authors (MASA) for the purpose of conducting this public awareness campaign.

The campaign is scheduled to run from April to September 2009 through billboards, posters and pamphlets, talks in schools and radio and television programmes.
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Friday, 24 April 2009

Darren Olivier

Servier Judgment Constipation

Thanks for all the emails requesting information on this judgment. Unfortunately this blog has not received the judgment or word that the judgment has been handed down. Almost every other week we have it on good authority that the decision "will be ready on Friday" and yet not even Good Friday managed to yield a result!

To those new to the discussion, the Servier judgment is an interim relief (no pun intended) decision that has been pending since the first week of February and promised to the public the first week following the hearing. You can catch up through the links posted here.

Now, the story gets more disturbing because practitioners are predicting that the judgment may not even be handed down at all or, if delivered, only very close to the trial date! What use would that be??

One assumes that the judge had every intention of delivering the judgment in the week that he promised and so the delay is mysterious. Is it because the case is a particularly difficult or specialist case in the hands of an acting judge? Is the acting judge overloaded with work or cannot get the support he needs? Is the decision ready but someone else blocking its release?

All comments, which may be posted anonymously, are welcome. And, if the Black Forest tea (right) has managed to ease the passage of the judgment, please send us a copy.
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Thursday, 23 April 2009

Asiimwe Paul

Draft Regulations to South Africa's 'Bayh-Dole Act ' released

The University of Cape Town's (UCT) center for research contracts and intellectual property rights reports that South Africa has released the regulations to the Intellectual Property Rights from Publicly Financed Research and Development Act, 2008 (Act No. 51 of 2008).

The regulations will operationalise funding and development of Intellectual property from public resources, such as at Universities and public research institutions. A copy can be downloaded here.

These regulations are timely in that they will clarify for researchers and other employees in Public funded institutions what their entitlements are when they develop any innovations. To this extent, this also reflects on how influential in terms of spreading licensing in the manner set out in the 'Bayh-Dole Act '., Ac 51 of 2008.
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Tuesday, 21 April 2009

Darren Olivier

Afro-IP in evidence in defamation trial

In the past few days Graeme Gilfillan from Nisaonline published a report that he had been sued for defamation by Samro, in part, for comments he posted to the Afro-IP Google Group. You can locate the note from Graeme here. The link to the piece which caused aggravation to Samro is contained through the link on the Afro-IP blog in this post, here.

This is a suggestion to readers who feel that this blog or one of its community has got it wrong, please feel free to either write to us or post the comment, correction or clarification yourself through the blog, anonymously if you like. Samro have published their own version of events on their site here albeit that the links to "SAMRO puts facts on record on the Brenda Fassie matter", "Fassie Royalty Matter to be resolved Out of Court" and others are not currently working at the time of this posting. Graeme, thanks for your input and we await news of the outcome of your case.
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Darren Olivier

FIFA enforces World Cup consent

Afro Leo has come across an order of the High Court of South Africa (North Gauteng, Pretoria) whereby Eastwood(s) Tavern have been restrained (apparently with their consent ie uncontested in Court) from ambush marketing the FIFA World Cup Event and infringing the World Cup 2010 registered trade marks, the first of its type for the FIFA campaign according the Sport24 commentary which has already attracted over 65 comments. Having read some of them Afro Leo wants to know if this is a canny piece of communication (who is now going to dare take FIFA on again?) or a dreadful marketing blunder by FIFA (the content of some of the comments may need parental supervision)?

It is a pity that this case went undefended though. For example, readers may recall that Afro-IP's first poll, reported again here, result was that the SA trade mark registrations were invalidly registered, following a Board of Appeal decision in Europe so it would have been interesting to see the scrap. Passing off, one suspects would have been very difficult to prove too. On the other in FIFA will argue that they have obtained registrations and protected their proprietary rights (from an IP point of view), both of which could have been contested by the public at the appropriate stages.
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Darren Olivier

Kenya's anti counterfeit legislation, India protest

Yesterday's The Financial Express editorial commented on this article entitled: Govt Protests as generic drugs get bitter pill in Africa describing an outcry in India over the recent passing of Kenya's anti-counterfeit legislation. The editorial is copied below for your consumption and comments, which may be posted below. Previous postings on Afro-IP can be located here, here, and here.

"As FE reported yesterday, India has called an extraordinary meeting of ambassadors of all African countries to register its strong protest against a Kenyan anti-counterfeit Act that could severely restrict the market for Indian generic drugs into Africa. Why is this legislation of supreme importance to both Africa and India? When HAART—a combination therapy for delaying the onset of AIDS—became available in rich countries in 1996, it took only four years before death rates for people with HIV/AIDS there dropped by 84%. But, at $10,000-15,000 per person per year, these antiretroviral drugs were far too expensive for most HIV-infected people in poor countries. It was only when Indian pharmaceutical companies started producing generic (and, therefore, cheaper) versions of these antiretrovirals that prices came down significantly in developing countries as well. By 2001, Indian generic manufacturers (like Cipla) were offering triple combination therapy for around $300. According to the Unaids 2008 report on the global AIDS epidemic, India is the largest supplier of generic antiretrovirals to low- and middle-income countries. Speaking of India’s interests, 14% of Indian pharmaceutical exports are to Africa, with Kenya being the third largest African market for Indian drugs. Now, since the global pharmaceutical market is likely to see $123-billion worth of products lose patents by 2012, there is good reason to believe that the Kenyan legislation has been influenced by vested interests.

Given that the expiry timeline for drug patents differs across countries, it’s really problematic that the Kenyan legislation protects the intellectual property rights of drugs that are registered even outside Kenya. As the FE story explains, this would mean that if patent rights of a drug exported from India to Kenya are not registered in India but, say, in Jordan, Kenya will have the right to take legal action against the Indian drug company by labelling the Indian product as counterfeit. In a parallel development, the Indian patent office has rejected Swiss drug multinational Novartis’s application to secure a patent for an alfa crystal form of its blockbuster cancer medicine, Glivec. However, this decision, while not uncontroversial, at least has some grounds: a) withholding patents from earlier inventions; and b) protecting rights of patients to access life-saving drugs at affordable prices. In the Kenyan case, on the other hand, it appears more likely that the proposed protection is aimed at allowing big pharma to protect their monopolies by strong-arming weaker governments via their own.
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Monday, 20 April 2009

Asiimwe Paul

World Intellectual Property Day 2009

World Intellectual Property Day is fast approaching on the 26th of April, 2009. As we contemplate its importance in Africa, I have found it important to reproduce some of the remarks of the WIPO Director General below...

"On World IP Day 2009, the World Intellectual Property Organization highlights the contribution of a balanced intellectual property system to stimulating the creation, diffusion and application of clean technologies; to promoting green design, aimed at creating products that are eco-friendly from conception to disposal; to green branding, helping consumers make informed choices and giving companies a competitive edge.

The power of human ingenuity is our best hope for restoring the delicate balance between ourselves and our environment. It is our greatest asset in finding solutions to this global challenge, enabling us to move forward from the carbon-based, grey technologies of the past to the carbon-neutral, green innovation of the future."

Managing the pressure to industrialize is particularly important for Africa as the challenge for most countries in Sub Saharan Africa is to post high economic growth numbers at all costs! However, it must also be noted that some 'green' sources of energy such as bio-fuels have un-intended effects such as increase in food prices. Hopefully we will all make our individual efforts to ensure that our engagements strike a healthy balance between development and exploitation of IP in Africa.

Happy IP day!
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Darren Olivier

CIPRO Guidelines on Non-Traditional Trade Marks

Thanks to report published by Dana Kretschmer (Spoor and Fisher) Afro Leo has had reason to open February's number 1 best seller : The Patent Journal. In it, contained on pages 460-461, is an Official Notice entitled CIPRO Office Guidelines with regard to the lodging of Non-Traditional Trade Marks (or better, "non conventional trade marks" to avoid confusion with the traditional knowledge discussions).

CIPRO has been bold enough to provide guidelines on filing Three-Dimensional Marks, Colour Marks, Holograms, Motion/Multimedia Marks, Position Marks, Gesture Marks, Olfactory (Smell/Scent) Marks, Taste Marks and Texture Marks. The Guidelines and a number of comments (in italics) can be found at this link.

From a brand owner's point of view these guidelines serve as a reminder of the vast array of distinctive features that are registrable as trade marks (at least in theory). For the practitioner, these will be useful guidelines for preparing applications to register marks (although clarification from CIPRO is required on some of the guidelines as indicated by the comments) as well as providing ideas for challenging marks which already exist but may not be sufficiently described. These Guidelines are not part of the law but an aide to interpreting it.

Afro Leo asks if practitioners were invited to discuss the guidelines (as The Swiss Federal Institute of Intellectual Property did in 2005 when changing their guidelines) and whether the Patent Journal is the best place for publishing such information? A news feed from the CIPRO website alerting practitioners may prove more effective than the patent journal. Afro Leo could not locate the news on the CIPRO website under the Latest News Sections.
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Friday, 17 April 2009


Morocco signs up for TLT

In case you missed it ... By TLT Notification No. 50 , the World Intellectual Property Organization has confirmed that the Kingdom of Morocco deposited its instrument of ratification of the Trademark Law Treaty on 6 April. The Treaty will enter into force for Morocco on 6 July 2009.
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Thursday, 16 April 2009

Aurelia J. Schultz

Nigeria Moving Forward with Plans to Introduce IP Classes

Members of the creative industries in Nigeria have often bemoaned the lack of experienced intellectual property attorneys in Nigeria.  Partly, this lack is because intellectual property is not a subject covered in the Nigerian universities.  The Copyright Institute of the Nigerian Copyright Commission has been working to address this problem.

The Institute developed a course pack for an Intellectual Property class that can be taught in any Nigerian University.  The materials include a detailed syllabus as well as compiled reading materials.  Afro-Leo has learned from a friend at the Institute that copies of the syllabus recently went out to every Nigerian University.  The Institute has also received funds to produce 260 copies of the course materials.

The hope is that professors at some of the universities will be willing to teach the new IP class and future graduates will enter the legal field with enough background knowledge of intellectual property to work in the field.

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Wednesday, 15 April 2009

Darren Olivier

Sars - tainting or tainted IP?

Those who review the IP Finance blog may recall a posting entitled SA reducing incentives for intellectual property outflows reporting on the how the introduction of S231 of the South African Income Tax Act seeks to squash so called "intellectual property arbitrage" from 1 January 2009. Pitsi Rammutla (Deloitte) writing for Moneyweb here recently reports further that: 
  • Sars (South African Revenue Services) will not allow a tax deduction relating to the use of "Tainted IP" if the corresponding receipt or accrual does not make up "income" for SA tax purposes
  • where a taxpayer concludes on licence in respect of various items of IP, the royalty payable for the bundle of IP must be apportioned between the relevant items of IP for separate analysis by Sars.
Afro Leo understands that Sars would have an interest in ensuring that tax is paid where it is due and in closing loopholes thought out by bright tax experts. However, there is a balance to be struck between taxing "tainted IP" and tainting IP growth by making it unattractive to develop IP in RSA, either by local business or through a purchase by local business. Is Sars striking that balance? Consider for instance, their tax incentive initiatives too.
Tainted IP is defined in the Income Tax Act as:

tainted intellectual property' means intellectual property—

a)        which was the property of the end user or a person that is or was a connected person, as defined in section 31(1A), in relation to the end user;

b)        which is the property of a taxable person;

c)        a material part of which was used by a taxable person in carrying on a business while that property was the property of a taxable person and the end user of that property acquired that business or a material part thereof as a going concern; or

d)        which was discovered, devised, developed, created or produced by the end user of that property, or by a taxable person that is a connected person, as defined in section 31(1A), in relation to the end user, if that end user, together with any taxable person that is a connected person in relation to that end user, holds at least 20 per cent of the participation rights, as defined in section 9D, in a person by or to whom an amount is received or accrues—

i)          by virtue of the grant of use, right of use or permission to use that property; or

ii)         where that receipt, accrual or amount is determined directly or indirectly with reference to expenditure incurred for the use, right of use or permission to use that property;
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Tuesday, 14 April 2009

Darren Olivier

Congratulations all round

Whilst on the topic of IP developments in Botswana (see previous post below) the Afro-IP blog takes the opportunity of congratulating fellow contributor, co-founder and IP extraordinaire, Jeremy Phillips, on becoming the first Dean of the newly formed Law Faculty of the University of Botswana. Modesty is one his attributes too, Afro-IP extracted the information from Jane Lambert's blog, NIPCLAW here!

And congratulations to the University of Botswana too. For an insight into Botswana's IP policy click here.
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Darren Olivier

The hologram: a blessing or a curse?

MMegi Online publishes an insight into Botswana's use of holograms to dissuade pirates from ripping off local musicians claiming too that Botswana's copyright laws are more advanced than their neighbours South Africa. The article entitled Hiccups, but hologram helps anti-piracy campaign looks at the practical difficulties of adopting the hologram which include cost (the holograms are sold to artists) and the fact that musicians need to travel to Gaborone obtain the device. However, the device is hailed too, as an effective anti-piracy tool.

Apparently, "Kenya will be introducing the hologram this year following the review of their copyright law. Other countries such as Zambia, Ghana, Nigeria and Malawi are already using the hologram" and " South Africa's copyright law is old and like most laws it does not have the provision for the use of the hologram."

This blogger suggests that the requirement to purchase holograms is important from a communication and branding point of point of view; it sends a message that the work is authentic carrying the attitude that authenticity is value and that copying is wrong. Holograms themselves are capable of being copied and so this blogger feels that the device per se will not truly address the problem.
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Thursday, 9 April 2009

Darren Olivier

IP practices robust in downturn

Legalweek's green shoots survey article "Partners hint at better times ahead" caught Afro Leo's eye this week not so much for the headline but for commentary confirming that IP practices have been robust in the downturn.

"Tim Jones, London head at Freshfields Bruckhaus Deringer, said: “The decline of M&A work does highlight the areas that are doing very well – litigation, restructuring, regulatory work and IP, for example.”

"Other areas cited [for investment] were real estate (10%), intellectual property (9%), banking (8%) and capital markets (4%)."

There has been much debate over whether IP practices would suffer in a downturn and there have been strong signs that it would, with national IP filings showing marked declines across a number of key registries. However, there are good arguments that IP becomes increasingly important in recessionary times, for example, from a litigious/protection, restructuring or licensing point of view. The survey appears to support the view that strong IP departments provide a good foundation for corporate firms, along with traditional counter cyclical departments such as employment and litigation. Readers will note that in the UK, most IP filing work in law firms is outsourced to patent and trade mark filing firms so a drop in filings may not affect them, at least directly. Afro Leo would welcome commentary from IP practices in Africa.
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Darren Olivier

Ethiopia: new trade mark legislation

Afro Leo has heard from Reinhold Gregorowski that that the long awaited "new" Trademark Registration and Protection Proclamation (No. 501/2006) may come into operation sometime before the end of May 2009. The Proclamation is the first statutory trade mark legislation in Ethiopia which was promulgated in 2006 but without implementing regulations.
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Sunday, 5 April 2009


Kenya exercises power to deal with substandard batteries

Kenya Broadcasting Corporation reports that the Ministry of Industrialization has yet again banned sales of sub-standard dry cell batteries in the local market. Eveready Batteries has also been ordered to improve the production standards for its dry cell batteries in order to remain relevant in a competitive market. Apparently some 37 brands of substandard batteries are currently on sale; these can easily explode, causing harm to unsuspecting users.

The situation is quite complicated. It seems that, while some of the substandard batteries are counterfeits, others are made by small companies that have difficulties in meeting manufacturing standards. An anti-counterfeit agency has been established in accordance with the recently passed Anti Counterfeits Act, but presumably this will be of little assistance in dealing with genuine but poor-quality goods.
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Friday, 3 April 2009

Darren Olivier

Outsourcing [IP management] to Africa?

The ‘Outsourcing to Africa: A Relative Ranking of 15 Country Locations’ survey, which was compiled by India’s Cybermedia, ranked Egypt, followed closely by Mauritius, South Africa, Tunisia and Morocco, as the top destinations for outsourcing in Africa. The study also provides a general overview of the current activities and issues related to ICT (information and communication technology) outsourcing in the country. RSA came first for "IP laws and the contribution of services to GDP". (Engineering News) Although the article deals mainly with ICT outsourcing, Afro Leo has experienced the benefits of delivering and receiving certain outsourced legal IP services from Africa (RSA in particular). An opportunity for Africa and Africans, certainly.

The Commonwealth Business Council has published the report here.
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Thursday, 2 April 2009

Darren Olivier

Access to drugs: Canada's one licence solution

The Ottawa Citizen carries an interesting debate around a motion to reform Canada’s Access to Medicines Regime (CAMR) by streamlining Canada’s system for getting low-cost medicines to developing countries. It "will save lives" according to the Liberal senator who sponsored the bill. But his statement is not universally accepted. The full article is contained here.

"Senator Yoine Goldstein [alongside] Tuesday tabled Bill S-232 to amend the provisions of the Patent Act that deal with the manufacture and export of drugs for humanitarian purposes. The Act was amended in 2004 to create exemptions to intellectual property rules, enabling generic drug manufacturers to produce low-cost medication to treat HIV, tuberculosis and malaria in developing countries, particularly in Africa."

"The senator’s private member’s bill proposes what’s known as the “one-licence solution,” allowing a generic manufacturer to send multiple shipments of the same medication to a variety of countries without having to requalify for every shipment, as is currently the case. It would also make it easier for non-governmental organizations to buy and distribute generic medications under CAMR, something only governments are allowed to do at the moment."

However, according to Russell Williams, president of Rx&D. "It is an emotional debate but I believe that targeting CAMR is a problem," said Williams. "I don't see it as a barrier."

Apotex the only company to have tested the CAMR protocol thus far, vehemently disagrees. I don’t know whether we did the developing world a favour or a disservice by getting that first shipment of Triavir out,” said Bruce Clark, vice-president of regulatory affairs for Apotex. “It seems to have appeased the conscience of the legislators and of the brand industry, and let them think we don’t need to do anything else. That’s unconscionable.”...“It was sheer effort on our part to get that first shipment out. The brands say it’s [The Act]fair, fast and functional, but by whose definition? Would the patients in Africa say it’s functional?”

Either way, it is great to see efforts by developed countries to ease the passage of life saving drugs to the continent. It is also up to African nations to ensure that those drugs find their way to the needy in an efficient way. And there is tremendous debate africaside too - which can be followed through the label "access to drugs" alongside and the search function (top left).
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Darren Olivier

April 1 posts - coming clean

It is time to come clean! Yesterday's posts contained two "fools"; the first snared Afro Leo and the second may have snared you. There is no International IP Court mooted by the G20 and there are no immediate plans (as far as Afro Leo is aware) for RSA to join the Madrid Protocol or drop relative grounds examination. However, there is every chance that AJ Da Silva's judgment may still be delivered on Friday.

Afro Leo, blushing himself, hopes these posts were taken in the spirit of the day.
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Wednesday, 1 April 2009

Darren Olivier

Stop Press: RSA - Madrid Protocol/Servier Judgment

Afro Leo has it on good authority that South Africa is to join the Madrid Protocol and drop relative grounds examination. And also, that we will receive AJ Da Silva's Servier judgment on Friday.
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Darren Olivier

G20 IP debates

Leaders of the world’s largest economies struck a closed-door deal late Tuesday to create an international court for intellectual property litigation in a move sources said they deemed a contribution to the global economy, according to reputable IP Watch.

And, reports emerging from Downing Street over the weekend underlined that Britain would like to get tougher on tax havens by making them "increasingly unacceptable and costly to operate". The reports focus on virtually the entire list of abuses identified in the Guardian's recent Tax Gap investigation which revealed how companies are now alleged to be shifting valuable intellectual property such as patents and consumer brands into tax havens. A key reform the government is reported to be pressing for is to tighten up the rules on transactions with tax-haven companies. Obama, before he became president, famously said that an office block in the British-controlled Cayman Islands acted as headquarters for 12,000 companies. (The Guardian)

South Africa is the only African nation in the G20 and it is a pity there is not more representation because both debates (tax havens and an international court) could significantly affect countries in the world's second most populous continent. Take for example, Mauritius which features prominently on global IP filing statistics (and flourishes as a result) primarily because it is a tax haven. And an International Court - how will specific needs of developing countries be catered for?
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