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Wednesday, February 12, 2014

The perils of Powers of Attorney

Philip Morris (PM) sued Japan Tobacco (JT) in Indonesia' Central Jakarta Commercial Court in a trademark dispute. It should have been straightforward. Especially as JT did not make an appearance.  On Tuesday the panel of judges made their decision. They made the odd ruling decision that PM's Power of Attorney (POA) to its lawyers was defective, as there was no evidence of the signatory's authority to appoint lawyers.

This is a problem in many countries. Courts simply refuse to believe that the name in the POA is authorized to appoint lawyers under a POA. Over zealous judges favoring technicalities over justice is the problem.

On the one hand you could read this as a legitimate technicality. It has certainly been seen before in Indonesian litigation. The same problem happens in the Philippines. The correct but (annoying for companies) approach is that the written Board resolution or other authority ought to be presented as well as the POA. That way the appointment of attorneys is valid and the person appointing them proves his or her authority. 

But when the defendant doesn't even appear, it is rather ludicrous to make the assumption that PM was misleading the court.  Such decisions are sometimes 'code' for judges seeking something from a party's lawyers for granting a favorable decision. Undefended cases are especially problematic as there is no chance of an angry loser!

But either way, litigation in Indonesia remains a matter of dotting every i and crossing every t. Leaving one procedural or evidential stone unturned gives a difficult judge something to use against you. PM can issue proceedings again but will have wasted a lot of money.

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