Weekly Roundup
Arbitration
Kluwer Arbitration Blog dove into a recent Swiss Federal Supreme Court decision which clarified when a subsequently discovered ground for challenging an arbitrator can also be a ground for challenging an award:
According to the Court, a review of the award due to alleged bias of an arbitrator on these grounds can only be considered with regard to a ground for challenge which could not have been discovered during the arbitration proceedings by exercising due diligence under the circumstances.
English Law
Law360 (login required) discusses alternative English-law approaches to assessing damages in commercial energy contact disputes, noting that some of the largest damages awards (over $50 billion in one case) result from cross-border energy disputes:
Case law illustrates that the English courts will be inclined to consider a valuation date later than the breach of contract in several situations, including, but not limited to:
• Where a breach is latent;
• Where substitute performance is not readily available on the market; and
• Where the parties need time to conduct negotiations.
Tech+AI
Law360 (login required) highlights a case to watch in the UK in which an American researcher argues the Supreme Court should allow an AI to be considered an “inventor” under U.K. patent law:
Lawyers for researcher Stephen Thaler argued that he merely coded the machine, called DABUS, and gave it the “general knowledge” required to invent, so has no claim over the two inventions the machine came up with. As a result, Thaler cannot submit a patent application with himself listed as the inventor, they said.
On the other hand, counsel for the Comptroller-General urged that any decision rest on alternative grounds:
Counsel for the comptroller, Stuart Baran, echoed that point, arguing that the Patent Act 1977 states that only a person can be considered an inventor. He told the court that Thaler would have had no problem in proceeding with his patent applications if he had listed himself as the inventor.
Whether the name provided on a patent application to be the inventor was the true inventor or “deviser” is not down to the comptroller to investigate, Baran argued.
It remains to be seen whether the Supreme Court will address the issue directly. The case is Thaler v. Comptroller-General of Patents, Designs and Trade Marks 2021/0201.
Legal Innovation
The Technologist blog published some helpful tips for identifying “Deepfakes” in evidence and discovery, which is particularly relevant now where audio and visual AI tools are readily accessible to consumer audiences.
