We have always done things a little differently at the Australian International School Malaysia (AISM). We pride ourselves on our innovative pedagogy, transformative approach to teaching and learning and most importantly, the meaningful relationships we cultivate and nurture with all AISM families, resulting in a close-knit community of educators, students and parents who are all mutually invested in the well-being and success of the school. As reflected in our school song, ‘We are one heart, one voice, united…’
It is precisely this sense of unity, cohesiveness and positivity that has allowed us to make a seamless and effective transition, at very short notice no less, to our virtual learning sphere aptly named the Continuity of Learning programme.
At AISM, we are committed to shaping our students to believe that anything is possible as long as we try our hardest and do our best. We teach our learners daily that every challenge is merely an invitation to create new solutions. We lead by example through all of our learning and teaching endeavours that the unknown is merely an opportunity for discovery and advancement. These principles have been equally embedded in our current Continuity of Learning programme.
Our successes, accomplishments and identity as a school are built upon the very foundations of a growth mindset and a can-do attitude. Therefore, the move from a physical classroom to an online one, whilst no doubt challenging and trying at times, has also been a stimulating and invigorating journey as we continue to discover new and different ways of providing our students with the same AISM experience from behind a screen.
As the world’s first certified visible learning school, the central focus of our approach to education has long since been a student-centric one. At the very heart of all of our lessons, activities, tasks and assessments is the needs of our students, both academic and pastoral, and we have taken great measures to implement this same philosophy in our Continuity of Learning Programme where we have strived to prioritise and ensure the well-being and on-going development of AISM learners.
In the Middle and Senior School, our classes have been conducted according to our regular day-to-day timetable and there was no gap between the last face-to-face lesson and the first online lesson once the MCO was implemented. Adolescents, as we know, thrive on routine and structure, and with this in mind, we have established a learning environment that facilitates student participation and engagement in a very similar fashion as to what would be expected of them when in attendance at our physical campus. The best and most consistent feedback as well as compliments that we have received from our students, is that they have not noticed any difference between our on-campus lessons and our Continuity of Learning lessons, except for their physical proximity to each other. In a recent parent survey, this feedback was further corroborated and supported.
Our Year 6 to Year 12 students have daily face-to-face contact with all of their subject teachers in every lesson during which time the attendance is marked, the learning intentions and success criteria are imparted and the lesson is introduced and explained. In order to try and mitigate some of the side- effects of prolonged exposure to screens, teachers across the different faculties have come up with an array of lessons and content that feature a combination of direct and indirect teaching methods, allowing for students to complete some work away from the screens but still have access to their teachers for guidance and support should they require it at any point during the course of a lesson.
Teachers in practical subjects such as Art, Science, Design Technology, Music and Drama, just to name a few, have risen exceptionally and innovatively to meet the challenges of not having access to physical labs and studios, and despite such limitations, have continued to draw out the best from their students. The diverse array of work that our students have produced over the last few weeks of online learning will further attest to this remarkable outcome.
In the Junior School, a different but equally effective approach to learning has been undertaken. In order to limit the amount of screen time for our young learners, each morning a learning guide for the day is published for each year level. These comprehensive daily guides feature a holistic range of subject based learning activities for the younger students with each activity differentiated to cater to the various learning needs and styles. The guides also include videos of the Junior School teachers providing verbal instructions for the tasks that are set and where relevant, the modelling of certain activities like counting, music and art. Students are able to access these videos as and when they require, allowing for the relationship between teacher and learner to be maintained.
Teachers further provide students with real-time, regular feedback on the work that they submit to the learning platform, and all of this is also captured and made visible to parents and caregivers through the same app, which is accessible on their personal devices. Our young learners are also invited to regular face-to-face online sessions with their teachers and peers where they are encouraged to touch base, socialise, share knowledge and make further inquiries about their learning.
In essence, our Continuity of Learning programme has allowed for AISM students to not only maintain a regular sense of school life under the MCO but to continue to thrive despite it.
Every week that we delve deeper into this new form of learning, our approach continues to evolve and expand. The non-campus AISM school day now also includes one-on-one language support sessions with our EAL learners at the beginning and end of each day, house challenges, assemblies, held using creative methods and a range of co-curricular activities.
We could not be prouder of the AISM community and how well we have embraced all of the changes and challenges that have come our way. Whilst we look forward to returning to our on-campus learning in the near future, it is remarkable to observe that we have been able to recreate and maintain the high quality of rigour and educational standards that we have always fostered and upheld at AISM.
Source: Gayatri Unsworth
A great deal of pressure and attention has in recent years been devoted by competition authorities across jurisdictions on commercial behaviour and conduct of pharmaceutical companies which contribute to generic delays. The European Commission has identified in its Pharmaceutical Sector Inquiry Final Report which was released on 8 July 20091 several “tool-box” strategies developed and used by originator companies to delay generic entries in order to continue reaping maximum profits from their
originator blockbuster drugs. These strategies are – strategic patenting (so-called “patent cluster”), patent disputes and litigation, patent settlements, interventions before national regulatory authorities and life cycle strategies for follow-on products.
This article focuses on the patent settlement strategy which gives rise to anti-competitive effects in the pharmaceutical sector or the mechanism more popularly known as the “Pay-for-Delay” Agreement. A “Pay-for-Delay” Agreement is generally a form of patent dispute settlement where an originator company or pharmaceutical patent holder extends to a generic company some sort of value transfer, for instance direct monetary payment, distribution or licensing rights and/or other forms of side commercial deals in return for which the generic company acknowledges the validity of the patent in dispute and undertakes to refrain from marketing a generic version of drugs which is equivalent to the originator drugs for a specified period of time at the end of the life of the patent. It is worth noting that settlements which allow generics to enter into the market before the patent is set to expire may also be subject to antitrust scrutiny from competition authorities.2 Such deals are not only predisposed to depriving the public of equitable access to cheaper medicines and affordable treatments but could also facilitate the drop in innovation and enhance the tax burden financing the health system.
It is observed by the Malaysia Competition Commission (“MyCC”) in the Market Review on Priority Sector under Competition Act 2010: Pharmaceutical Sector3 that patent settlements between originator and generic companies in other parts of the world may have impacts on the Malaysian market. The patent settlement agreements in relation to Novartis’ imatinib (a blockbuster drug for the treatment of chronic myeloid leukaemia sold under the brand name of “Gleevec” or “Glivec”) is a case in point. In Malaysia, although the National Pharmaceutical Regulatory Agency (NPRA) has granted marketing approval for generic imatinib to Cipla Malaysia Sdn. Bhd. in March 2013 and Dr. Reddy`s Laboratories Malaysia Sdn. Bhd. in August 2017, both companies have not proceeded with the supply of the generics in Malaysia. Similarly, Ranbaxy Laboratories Limited filed a patent application for its generic imatinib on 15 February 2013 in Malaysia but the application was subsequently withdrawn.4
Around 2014, Novartis launched patent infringement lawsuits against, among others, Dr Reddy’s Laboratories and Ranbaxy for the latter’s filing of the Abbreviated New Drug Applications (ANDA) with the US Food and Drug Administration (FDA) for approval to market generic versions of the imatinib prior to the expiration of Novartis’ imatinib patents in the US. The validity of the US patents was also challenged by the generic companies. The MyCC noted that these companies or their related companies had subsequently gone into settlement with Novartis and the potential global reach effect of these settlements could circumvent the entry of generic imatinib into Malaysia.5
The adverse effects of the “Pay-for-Delay” Agreement has signalled a greater vigilance of enforcement across jurisdictions. Regular monitoring by the European Commission of patent settlements between originator and generic companies has been actively progressing since 2010. We have seen the European Commission imposing fines of up to €93,8 million on the Danish pharmaceutical company, Lundbeck and of €52,2 million on four generic companies for blocking the supply of the generic anti-depressant, citalopram in 2013.6 Being dissatisfied with the European Commission’s decision, Lundbeck and the generic companies filed an appeal to the EU General Court, which subsequently upheld the Commission’s decision and ruled for the first time in 2016 that “Pay-for-Delay” Agreements breached the EU antitrust rules.7 On top of that, Johnson & Johnson and Novartis were also inflicted with fines totalling €16 million for delaying market entry of the generic pain-killer notably used for cancer patients, fentanyl.8 Later in 2014, the French pharmaceutical company Servier and five other generic companies were fined by the European Commission a total of €427.7 million for concluding a series of deals aimed at protecting the former’s bestselling cardiovascular medicine, perindopril from price competition,9 a decision which was subsequently annulled in part by the EU General Court and the total fines were reduced to €315 million10.
The US Federal Trade Commission and the UK Competition and Markets Authority (“CMA”) have also taken similar approaches in the cracking down on such anti-competitive practices.
MyCC’s View on “Pay-for-Delay” Agreement
Although the MyCC has not issued any decision on competition issues relating to the pharmaceutical sector, it has in its Guidelines on Intellectual Property Rights and Competition Law published on 5 April 2019 (in force from 6 April 2019)11 recognized that a “Pay-for-Delay” Agreement may be anti-competitive and thus fall foul of sub-section 4(2)(c)12 of the Competition Act 2010 (“Act”) having the object of significantly preventing, restricting or distorting competition in the market. Such agreements may also be an abuse of dominant position under section 10 of the Act.
If a “Pay-for-Delay” Agreement is indeed caught under sub-section 4(2)(c), the “safe harbor” threshold13 does not afford any defence or absolve a “Pay-for-Delay” Agreement from liability. Under such circumstances, the MyCC is under no obligation to define the relevant market and determine the market shares of the parties nor its anti-competitive effect.14 Parties to such anti-competitive agreement may nevertheless invoke section 5 of the Act to be relieved of their liabilities by demonstrating the following:
there are significant identifiable technological, efficiency or social benefits directly arising from the agreement;
the benefits could not reasonably have been provided by the parties to the agreement without the agreement having the effect of preventing, restricting or distorting competition;
the detrimental effect of the agreement on competition is proportionate to the benefits provided; and
the agreement does not allow the enterprise concerned to eliminate competition completely in respect of a substantial part of the goods or services.
The burden of proof lies on the parties seeking an exemption under section 5 to demonstrate all the above criteria by means of legal arguments and factual evidence. Patentees might argue that the agreement at issue proffers the incentive required to innovate whilst its effect brings no actual or potential net harm to society at large. Whether the agreement does result in direct technological, efficiency or social benefits, and whether it generates appreciable objective advantage would have to be appraised in the light of the business norms and social and economic realities within the pharmaceutical realm. Concepts of “reasonableness” and “proportionality” being moulded into the legal test suggests that while objective appreciation of the social and economic realities of the case is a necessity, subjective elements such as practical considerations affecting the parties cannot be ignored. Does the ultimate strategy of the parties have the ability to sidestep competition resulting in exclusionary effects going beyond the specific anti-competitive effects of the individual agreements? In answering this, it should be open to the patentee to demonstrate that such exclusionary effects are outweighed by advantages in terms of efficiency that benefits consumers.
Malaysia presently has no precedents relating to disputes on pharmaceutical products or generic entries in the antitrust arena. Inquiries and reports by the European Commission or judgment from the EU courts are to a great degree illuminating in shedding light on issues pertaining to “Pay-for-Delay” Agreements due to the similarity between the competition laws of both jurisdictions.
Are They All Bad?
Different types of settlement agreements could receive different levels of competition law scrutiny. The European Commission remarks that settlement agreements which do not restrict generic entries and those which restrict generic entries but involve no value transfer are generally regarded as unproblematic from a competition law perspective whereas agreements which restrict generic entries and foresee a value transfer should be accorded the highest degree of competition law scrutiny.15
The European Commission further notes that licensing agreements restraining a generic company from entering the market with its own product or from setting the conditions for the commercialization of its product freely constitutes an agreement limiting generic entries to some extent. However, an exception applies in cases where royalty free licenses allow generic companies to launch their products without constraints on quantities, composition, pricing or other marketing conditions of the generic products.16
The EU General Court17 has also endorsed the view that a licensing agreement which is concluded ancillary to a settlement agreement may serve as a legitimate means for settling disputes and does not constitute a strong indication of a reverse payment18. Whilst it is true that there is a transfer of value from the originator company or patent holder to the generic company in the form of an authorization to use a particular patent in order for the generic company to enter the market without risk, the burden lies on the competition authority to demonstrate that the royalty paid by the generic company to the originator company is bizarrely low and that the transaction was not concluded at arm’s length, or in other words, under the normal competitive conditions, and that it actually glosses over a reverse payment inducing the generic company to accept the non-marketing and non-challenge clauses in the settlement agreement.
Similarly, an agreement which includes no other limiting conditions other than determining the date of the generic entry with the originator's undertaking not to challenge such entry at that point in time is also unlikely to attract the highest degree of scrutiny from the European Commission.19
In construing whether an agreement will be seen as limiting generic entries and stifling competition in the market, the list of potential limitations and possible value transfers are not meant to be exhaustive as every case should be examined on its own facts and merits.
Paroxetine – Judgment by the ECJ
The recent judgment of the European Court of Justice (“ECJ”) in Paroxetine20 provides a compelling insight into several fundamental issues plaguing “Pay-for-Delay” Agreements.
In February 2016, the UK CMA imposed a fine of approximately £45 million on GlaxoSmithKline (“GSK”) and several other generic manufacturers for patent settlement agreements between the parties for an anti-depressant medication, paroxetine. Under the settlement agreements, the generic manufacturers agreed to refrain from marketing their generic version of paroxetine for a specified period of time in exchange for payment of money and supply of a considerable but limited quantity of originator paroxetine from GSK. The agreements were found anti-competitive and abusive of GSK's dominant position in the market. Thereafter, GSK and the generic companies filed an appeal to the UK Competition Appeal Tribunal (“CAT”) against CMA's decision. The CAT sought preliminary ruling from the ECJ on the application of the EU competition law rules in the context of a “Pay-for-Delay” Agreement.
Some of the issues which were deliberated by the ECJ are set out below in brief:
Whether the generic manufacturers are potential competitors?
In answering this question, the ECJ held that it must be determined whether there are “real and concrete possibilities” of the generic manufacturers joining the market and competing with the other undertakings which are already present in that particular market.
The questions that should be asked are firstly, whether at the time when the agreement in dispute was concluded, the generic manufacturers had taken sufficient preparatory steps to enable them to enter the market within such a period of time as would impose competitive pressure on the manufacturer of the originator medicines. Secondly, the court must determine that the market entry of the generic manufacturers does not meet entry barriers that are insurmountable. In this regard, the ECJ highlighted that patent rights cannot be regarded as an insurmountable barrier as its validity may be challenged in court proceedings.
Whether the settlement agreements constitute restrictions of competition “by object”?
For agreements characterized as restrictions by object, there is no need to investigate their effects nor to demonstrate their effects on competition in order to classify them as “restrictions of competition”, in so far as experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment of consumers.
The ECJ further cautioned that the concept of restriction of competition by object must be interpreted strictly and may only be applied in cases where the content and objectives of the agreements, taking into account the economic and legal context in which they are formed, reveal a sufficient degree of harm to competition for the view to be taken that it is not necessary to assess their effects.
Notwithstanding that an agreement may involve value transfer (pecuniary or non-pecuniary), the ECJ observed that this is not sufficient to classify the agreement as a restriction by object in view that such transfer of value may prove to be justified in that it is appropriate and strictly necessary having regard to the legitimate objectives of parties to the agreement.
However, if the value transfer reveals only the commercial interest of parties not to engage in competition on the merits, the agreement must be characterised as a restriction of competition by object. Having said so, if an agreement is capable of demonstrating sufficient traits of pro-competitiveness, this may cast a reasonable doubt on whether it causes a sufficient degree of harm to competition.
Whether the settlement agreements constitute restrictions of competition “by effect”?
In the event that an analysis of the settlement agreement does not reveal a sufficient degree of harm to competition as to amount to a restriction of competition by object, it is then necessary to examine the effects of the settlement and to identify the factors which establish that competition was in fact prevented or restricted to an appreciable extent. In achieving this, it is necessary to take into consideration the actual context in which the conduct in question occurs, in particular the economic and legal context in which the parties concerned operate, the nature of the goods or services affected, as well as the real conditions of the functioning and the structure of the market in question.
It is to be noted that the restrictive effects on competition may be both real and potential but they must be sufficiently appreciable. The ECJ further held that in determining whether a settlement agreement is to be characterized as a restriction by effect, it is not necessary for the CAT to find either the generic manufacturer would have been successful in the patent proceedings, or that parties to the settlement agreement would probably have concluded a less restrictive settlement agreement.
Definition of “relevant market”
Before delving into whether there is an abuse of dominant position, the relevant market in which the competition takes place must first be defined to determine whether GSK holds a dominant position.
The ECJ was asked whether the generic version of medicines should be taken into consideration for purposes of defining the relevant product market, although they would not be able to legally enter the market before the expiry of the process patent in question, validity of which is uncertain. In response to this, the ECJ indicated an affirmative view contingent on the ability of the generic manufacturers concerned to present themselves within a short period of time on that particular market with sufficient strength to constitute a serious counterbalance to the manufacturer of the originator medicines.
Further, the ECJ also remarked that in defining a relevant product market, the test is whether there is a sufficient degree of interchangeability between the originator medicines and the generic medicines in dispute. In view that the case concerns pharmaceutical products, the ECJ has extended due recognition to the views of healthcare practitioners when it says “a supply of generic medicines containing the same active ingredient … could lead to a situation where the originator medicine is considered, in the professional circles concerned, to be interchangeable only with those generic medicines and, consequently, to belong to a specific market …”21.
Abuse of dominant position
The ECJ was further asked to provide guidance on whether entering into a settlement agreement would constitute an abuse of dominant position, on the assumption that GSK holds a dominant position in the relevant market.
The ECJ held that the overall strategy of a patent holder which leads to a patent dispute settlement agreement which has at least the effect of keeping potential competitors outside the market temporarily constitutes an abuse of a dominant position, provided that the strategy has the capacity to sidestep competition and to have exclusionary effects going beyond the specific anti-competitive effects of the individual agreements. It is however open to the dominant undertaking to demonstrate that such exclusionary effects are outweighed by advantages in terms of efficiency that benefits consumers.
The ECJ further held that notwithstanding an agreement is not penalised under the anti-competitive agreement provision, it does not necessarily mean that the agreement does not itself carry any anti-competitive effects.
Although it is not a requirement to establish that the dominant undertaking retains an anti-competitive intent, evidence of such intent may nevertheless be taken into consideration in assessing whether a dominant position has been abused.
The case has been remanded to the CAT for the final judgment.
The Way Forward
The ECJ’s preliminary ruling in Paroxetine has provided, in principle, a clearer understanding of the construction of “Pay-for-Delay” Agreements.
Whilst a patent holder is free to exercise its exclusive rights which include reaching an amicable settlement with parties allegedly infringing its rights conferred by a patent grant, it should be mindful of entering into a “Pay-for-Delay” Agreement as such agreements attract the scrutiny of competition authorities and risks severe penalties if found to be in breach of competition laws, particularly where the deal effectively blocks entry of competitive drugs into the relevant market and involves value transfers.
Nevertheless, the question of whether a settlement agreement may be regarded as compatible with competition laws and policies should be examined on a case-by-case basis in light of the social, economic and legal context. It is also important to ensure that the regulation of such agreements is not too oppressive that it intrudes upon the legitimate interests of the parties in reaching a mutually agreeable compromise.
Source: Tay and Partners
The last few weeks, I’ve been wrapping my head around the new abnormal. This has included indulging in the smorgasbord of virtual wine events that have sprung up everywhere. They’re fairly easy to find via social media and handy calendar pages. But while several events, such as Master of Wine Rebecca Gibb’s Lockdown Wine Quiz, have been terrific distractions, most of the virtual wine tastings held by wineries have been absolute duds.
Which has really bummed me out.
I was very high on this idea. Virtual tastings seemed like an excellent way for wineries to stay connected while generating revenue with the sale of VT wines for the events.
While sommeliers, retailers and bloggers have also been hosting virtual wine tastings of their own, I focused on winery VTs to see how they were adapting to this platform. But after sitting in on numerous virtual tastings (or watching the post-broadcast YouTube recording) from wineries big and small, US, Australia, UK, France–one consistent theme emerged.
I’ve not seen a winery publicize data from their virtual tastings. But for the ones that have conducted multiple events, I’m willing to bet that they’re already seeing a participation drop as we move from novelty to reality.
However, rather than scrap the idea altogether, we should take a critical look at where these events may be falling short.
Other writers, such as Antonio from Wine and Other Stories, have offered feedback and suggestions from a consumer’s POV. But I want to focus on how these virtual tastings are likely failing with their two main objectives (building connections & generating revenue)–and how we can reframe them to make them more effective.
This is the Achilles’ heel of winery virtual wine tastings. They want to “bond” and connect with consumers over bottles of wine that the person on the other side of the screen probably doesn’t have. Even tastings that are tied to wine club shipments or special VT kits are hampered by limitations as most people don’t want to open up multiple bottles at once. And you certainly can’t bank on everyone having a Coravin at home.
Few things increase the “suckitude” of a virtual wine tasting more than listening to folks go on and on about a wine that you’re not tasting. It doesn’t feel like a chat or a connection. At best, it’s a wine review of something that you might be interested in buying in the future.
But consumers don’t want to devote much time and attention listening to wine reviews. Think of why digital-savvy wineries tend to keep their “About this Wine” video clips reasonably short. You lose people’s interest droning on about wines that they’re not tasting.
Sometimes, you even lose it while they are tasting.
Now we’re not going to abandon objective #2 (generate revenue) completely. But if wineries want to make virtual wine tastings a long term success then they have to divest from the “tasting” part that’s limiting their reach. Instead, we need to start thinking of these events as FaceTime Podcasts.
Every winery should make it a priority to check out Levi Dalton’s I’ll Drink to That! podcast before they even think of doing another virtual wine tasting. These fireside chats with winemakers and other industry folks are chockful of best practices on how to maintain a wine lover’s interest for an hour (or more).
But that single wine is never the focus, nor are the chats ever bogged down with tasting notes and minutiae–even though they can get plenty geeky. Instead, Dalton keeps the attention on the person behind the wines. And it’s not just the stories or anecdotes that are superb. In the interactions between Dalton and his guests, you get a feel of their personality and presence. They become real and more than just a name or label.
There’s scarcely an episode of IDTT featuring a winemaker which doesn’t make me more interested in finding that producer’s wines. Even if I don’t immediately buy them, seeds have been planted that make their brands more likely to blossom, top-of-mind, when I see them on a wine list or retail shelf.
Before even tasting a drop of their wine, a connection has been forged.
The advantage of a virtual wine tasting is that folks can see the winemaker interacting in real-time. They can ask questions and have them answered live on screen. That’s freaking cool and we should be excited about this potential.
These are powerful tools to build strong connections with consumers. So why limit them to just people who already know your brand and have pre-bought your wine?
You want the reach and effectiveness of a podcast. The difference between a virtual wine tasting and a “FaceTime Podcast” is like fishing with a small hand net vs. a large casting one.
By far, one of the better virtual wine tastings I watched was done by Elizabeth Vianna of Chimney Rock Winery in the Stags Leap District. Now, yes, I am admittedly biased because I clearly adore Chimney Rock wines. But over the past few weeks, I’ve sat through at least a half-dozen virtual tastings, FB and IG live events done by other wineries I equally love that were thoroughly lackluster.
I want to highlight Chimney Rock’s tasting because it has both the inherent limitations of VTs (focus on a pre-sale kit of wines) as well as the tantalizing hints of what a good “FaceTime Podcast” could be like.
While talking about the four wines in front of her, Vianna kept dropping intriguing tidbits that spoke to broader topics about vintages, blending, aging wine, etc. While answering questions from the audience, more fertile themes emerged that could be their own dedicated topic for future events.
(6:33) Ying & Yang of blending hillside fruit vs. valley fruit
(8:06) The “Lazy Winemaker Vintages” of 2013, 2014, 2015
(17:34) When should I drink this wine?
(20:50) Why Cab is king
(21:50) Winemakers as interpreters instead of creators, aka “What happened in 2012”
(27:25) The 2011 vintage, aka “What would happen if Napa Valley had Bordeaux weather in a tough year.”
(40:04) White wines for red wine drinkers
Picture promoting this kind of an event.
The 2013, 2014 and 2015 vintages produced some spectacular wines in the Napa Valley. With droughts and Mother Nature doing a lot of the heavy lifting, these vintages are playfully nicknamed “The Lazy Winemaker Vintages.” Join us this Saturday, April 4th, with your favorite 2013-2015 Napa wine as our winemaker answers your questions and takes you through what made these years special. Don’t have a bottle handy? We’ve got you covered [link to store], but you can bring anything you like.
Throughout the event, you’re featuring your wines from those vintages but they’re more like “product placement” props. People are still seeing the labels and getting your insights on how the vintages shaped those wines. There’s plenty of seeds being planted to intrigue the consumer. However, because the focus is on the vintages, rather than those specific wines, the audience doesn’t feel left out or that the event isn’t relevant to them if they’re not tasting the exact same wine you are.
Also, your content becomes way more useful and searchable for people to discover down the road. A YouTube video with strong keywords in the title like “Why Cabernet Sauvignon is King in Napa Valley” is going to get a lot more views over the years than “Live Tasting Event April 4th” or “March Wine Club Shipment Live Event”.
The current en vogue of virtual wine tastings built around wine club shipments and VT kits might produce some short-term revenue. I don’t discount that that is incredibly important right now.
But their inherent limitations still mean that you’re fishing with a small net that’s not going to get much bigger. And you’re relying on those existing consumers to stay interested enough in the “virtual tasting” format to continue participating. While it’s too early to have any concrete data, the shelf life for VTs doesn’t seem very promising.
But the potential of these online tools is extremely promising. We just need to continue to innovate and experiment on how we use them.
The key to remember is that even when you’re not selling bottles, you’re still selling your brand. You’re selling your passion, personality and insights.
You’re planting seeds.
Source: Amber LeBeau
"We are not retreating–we are advancing in another direction." This famous quote from the American four-star general, Oliver P Smith, refers to an episode during the Korean War, but it resonates in today’s coronavirus crisis on many levels. The sudden closure of restaurants and cafés has already proven to be devastating for the hospitality industry, but there are glimmers of creativity, collaboration, and innovation as many establishments temporarily modify their business to survive the current lockdown.
Equally fascinating and inspiring is the surge of virtual tastings and panel discussions via videoconference over the past weeks.
And while we hope and expect that once the crisis is over going out to restaurants, cafés, and wine bars will pick up again quickly, alternative means of accessing wine education and participating in tastings could become viable and sustainable ways to connect producers with consumers and everyone in between.
A stream of new virtual propositions is already flooding in-boxes and social media, inviting viewers to engage with wine producers around the world, or learn from Masters of Wine, Master Sommeliers, and regional experts.
Sudden home isolation for many presents different challenges—from restrictions on work, to restrictions on time (those lucky enough to be able to work from home may also have children to home-school). Wine lovers are also faced with the challenge of pursuing their hobby, education, passion, or profession in isolation. While most will likely agree that the joys of tasting wine increase exponentially when shared in beautiful surroundings and with good company, that was not always possible before the current crisis, and will not always be possible after it is over, but now there is an opportunity to advance in multiple directions, not only staying connected, but building new and further-reaching networks. Besides the virtual tastings offered via Zoom or other platforms, pre-existing on-line wine schools are worth exploring now more than ever.
What follows is an overview of select on-line wine courses and virtual tastings, which are part of the creative silver lining to this crisis.
Up Close and Personal with the Experts
London’s private-member wine club, 67 Pall Mall, has swiftly set up a schedule of three video-tastings per week; 6pm GMT on Tuesdays, Wednesdays, Thursdays. “No RSVP required,” assures Ronan Sayburn MS in his first virtual tasting with Jasper Morris MW, “everyone is encouraged to open a bottle of white Burgundy while they listen along to Jasper discuss the differences between Puligny-Montrachet and Chassagne-Montrachet from his home in Beaune.” The zoom tastings are free, casual, and wide-ranging, with upcoming themes including Tim Atkin MW’s Virtual Guide to the Valleys and Peaks of Chile, and Jane Anson’s Bordeaux Battle of the Banks. 67pallmall.com
The Real Business of Wine launched on what should have been the first day of Prowein in Düsseldorf (March 15). Robert Joseph and Polly Hammond have partnered to produce (so-far) daily hour-long webinars (6pm GMT) on all aspects of the wine industry, from an analysis of higher wine education (comparing WSET, MW, and MBA), to an overview of the state of the on-trade with James Tidwell MS, Ronan Sayburn MS, and Joe Fattorini of The Wine Show, an hour-long live chat with Jancis Robinson MW on wine trends, and Biodynamics with Monty Waldin. It’s free to join and listen, and recordings are available to view on their site afterwards. realbizwine.com
Meet the Winemaker… at Home
Pressoir.wine (the team behind La Paulée and La Fête du Champagne) has partnered with Morrell & Company to offer online wine tastings and conversations with winemakers in Burgundy, Champagne, and the Rhône. The concept of their 'At Home Sessions' is an in-depth guided discussion via Zoom with a star winemaker, followed by a tasting of a suggested wine, ending with a moderated Q&A section. Prior to the event, participants can purchase from Morrell & Company the featured wine of the grower, in order to taste along. The line-up is seriously impressive—Frédéric Lafarge, Guillaume d'Angerville, Olivier Krug, Dominique Lafon, Jean-Marc Roulot, and Véronique Drouhin—with updates of new producer participants coming through daily. Wine purchase is not required, and delivery options are guaranteed in Manhattan only. But if you already have the wine in your collection, or just want to tune in and listen, you can register by purchasing a ticket for $50, all of which will be donated to a selection of funds set up by restaurants to help laid-off employees. pressoir.wine
From Vila Nova de Gaia, Churchill's has launched 'Virtual Conversations with Winemakers' inviting Port lovers to tune in on April 14 and 16 to meet winemaking duo John Graham and Ricardo Pinto Nunes for a back-to-back e-tasting of its Ports and Douro terroir wines. The wines in the tastings are available to purchase online in advance—in a bundle with free shipping to most of Europe— so that viewers can taste live along with the winemakers. The bundles are designed so that participants can enjoy the bottles over the course of the next week, with 20cl tasting bottles of the Ports and a selection of three Douro wines to choose from. “I've given countless tastings over the years to teach people about Port and Churchill's specific style of Port, but I never imagined I'd be showing my wines alone in my home to an audience around the world," said Johnny Graham. churchills-port.com/shop
Instead of Vinitaly wine lovers across the globe can now enjoy a virtual encounter with 15 renowned wine producers throughout Italy in a “virtual wine fair.” The usual wine-fair stands will be replaced with direct social-media encounters right from the wineries, vineyards, or desks of these wine producers in most of Italy’s regions. Anyone using social media can meet with them via the wineries’ Facebook (FB) or Instagram (IG) pages. The producers who will be present include Lamberto Frescobaldi of Luce, Axel Heinz of Ornellaia, Carlo Franchetti of Tenuta di Trinoro, Anselmo Guerrieri Gonzaga of San Leonardo, and Clara Gentili of Fattoria Le Pupille. After they introduce their new vintages, the producers will engage in conversation with wine lovers and wine professionals and respond to live questions.
Use hashtag #storiedivino to follow this virtual wine fair over April 6–9, from 3pm (CET)
Monday, April 6: Ricasoli 1141 (IG 3pm), Tenuta di Ghizzano (FB 4pm), Pio Cesare 1881 (IG 6pm)
Tuesday, April 7: Azienda Vitivinicola Passopisciaro (FB 4pm), Conte Vistarino (IG 4.30pm), San Leonardo (IG 5pm)Wednesday, April 8: Tenuta di Trinoro (4pm on IG under “passopisciaro trinoro”), Tenute Silvio Nardi (FB 4.30pm), Castello di Querceto (FB 5pm), Fattoria Le Pupille (IG 5.30pm)Thursday, 9 April: Ornellaia (FB 3pm), Antico Podere Gagliole (IG 3.30pm), Alliance Vinum (FB 4pm), Giodo (IG 4.30pm), Luce della Vite (IG 5pm)
James Suckling’s Masterclass on Wine Appreciation was produced in December 2018, but if ever there was a time to dive into this 11-part series, shot beautifully on location in Tuscany in and around his home, it’s now when you’re stuck in your own home. His relaxed and slow manner of speaking sets a gentle pace to the on-line course which comes with a smart downloadable workbook complete with definitions, key concepts, and wine information summarizing each video lesson.
Escapism to Italy
The content provides a solid introduction to wine for beginners, but there’s good stuff for experienced wine lovers, too. The segments that take place at Villa Antinori with Albiera Antinori are especially interesting as they taste through a vertical of Tignanello (1983, 1999, 2007, 2015) and discuss vintage variations, evolution of stylistic differences over the decades, and how they are achieved in the winery, climate change, and their vision of the future of wine. James shares a wealth of advice and opinions based on decades of experience. Instead of an exam at the end, the last lesson is a family Tuscan lunch with his son, wife, and neighbor winemakers as they discuss food pairing ideas with classic and Asian dishes. $180 for one year of access to the entire MasterClass database (with other categories of on-line classes ranging from cooking, writing, and science to explore). masterclass.com
A new on-line wine class from Italy, WineOnLine, is set to launch next week. Planned before the covid-19 crisis, it couldn’t come soon enough, because it will be a live, intimate, and virtual wine course with the unique feature of participants receiving their wine samples by post so they can taste exactly the same wine as the presenter and fellow students. The courses will be in Italian with English subtitles and will cover topics on tasting appreciation, Italian wines, international wines, and production techniques aimed at general wine lovers. More technical wine seminars on specific wine regions will also be led by preeminent Italian and international wine experts. For instance, a three-hour Barolo seminar led by the founders, Bernardo Conticelli and Andrea Pecchioni, with guest speakers including Alessandro Masnaghetti describing the differences in crus, and producers such as Cavalotto adding their perspective. Students will be able to sign up for the wine class and receive a pack of four small sample bottles (2 cl size) by post. During the live class, students will participate from home via computer or smartphone, and be able to interact with the wine expert and fellow classmates as they taste the wines together. Prices start from €35 for a live wine class (90minutes) with four wines to taste, and from €50 for pre-recorded specialist wine seminars with leading producers and experts. wineonline.wine
For the Stay-at-home Masterchef
Many of us are now forced to prepare all of our meals, all of the time. Some are embracing this period, digging out old recipes, and turning pantry cooking into a competitive sport on social media. If this is you, or someone in your home, then an on-line Food and Wine Pairing course could be the perfect opportunity to connect two passions, bond with the chef of the house, or simply enhance your own understanding of wine-pairing principles.
Fine Vintage Ltd offers an 8-module Food and Wine Pairing course written by Masters of Wine, James Cluer and Philip Goodband. The course covers the five tastes in food and wine, textures, key concepts in food and wine pairing, major wine styles with food, classic foods with wine, regional cuisines with wine, external influences on pairing, and finishes with an examination and printable certificate. It is not a video format but rather presented in sequential slides with interactive questions and quizzes throughout to check comprehension. There is an especially interesting section on molecular matching, which outlines principles around molecular flavors (lactones, eugenol, and terpenes), molecular temperatures (compounds such as menthol and estragole) and molecular oak maturation (levels of toast that pair well with varying degrees of umami in food). The course takes 4–6 hours and costs $99. finevintageltd.com
Until We Can Meet Again
Hats off to everyone who has managed so quickly to adapt in these difficult circumstances, finding new ways to share their knowledge and passion for wine. At the time of publishing this round-up, an astounding number of enticing virtual dates keep popping up, with invitations to connect on-line from individuals, merchants, or wineries. Many of us are stuck at home, but together we can advance in a new direction for wine communication, education, and participation.
A majority of States have resisted the reopening of the economy on 4 May but do they have the authority to stop businesses if they are permitted by the CMCO?
On 1 May 2020, the Prime Minister announced that all business sectors would be allowed to resume operations if they did not fall within a list of prohibited activities, starting 4 May 2020. These pronouncements have come to be referred to as the Conditional Movement Control Orders (CMCO). Although the announcement was initially well received, concerns that a premature reopening of
the economy to such an extent could result is a new spike in the rate of infections, continued to circulate. Consequently, a majority of states came out with their own announcements stating that they would not implement the CMCO for now. These were Sabah, Sarawak, Kedah, Kelantan, Selangor, Negeri Sembilan, Pahang and Pulau Pinang.
This in itself gives rise to a legal connumdrum. Under the present regulatory regime, the MCO and all other subsequent regulations including the CMCO have been empowered and proscribed under the Prevention and Control of Infectious Disesases Act 1988 (the “Act”). Whilst the states may be right to continue restricting movement, they can only do so under the ambit of the MCO and not by their own powers of regulation. Therefore, without the backing of the Federal government under the Act, their rulings can be challenged. The Health Minister (MOH) and his authorised officers are the only persons empowered under the Act to make regulations for this purpose. Consequently, once the restrictions are lifted by MOH there is no other mechanism for restricting businesses on the grounds of health in a generalized way. In other words businesses (unless restricted by the CMCO) are entitled to operate in the same way as before the MCO was gazetted.
Whilst there may be state or local authority regulations that can be used to require businesses to comply with certain health and safety rules, those may only be enforced against businesses that do not comply on a case to case basis.
RLSE Regulations Team (firstname.lastname@example.org)
Just how easy is it to do business in Malaysia, and how does that compare to other nations? Since 2002, the World Bank has been collecting and publicising standardised comparative data on the impediments to starting and operating a business around the globe. Published annually, the latest Doing Business report assesses some 190 countries, and indicates that Malaysia is performing well, attaining a rank of 12th globally (see Table 1). Malaysia is one of only two economies in the ASEAN region to make it into the top 15 rankings,1 and has also seen an improvement on its score in recent years...
The government has provided temporary relief against winding up petitions for companies between 23 April 2020 to 31 December 2020 (“Prescribed Duration”). This has come about by increasing the minimum amount of indebtedness needed for a deemed statutory insolvency and by exempting the compliance period for a statutory demand for payment of 21 days and permitting compliance within 6 months. This was done by gazetting Companies (Exemption) (No 2) Order 2020 (the “Exemption Order”) pursuant to S.466 of the Companies Act 2016 (the “Act”).
One of the grounds for a winding up of a company is prescribed under paragraph 465(1)(e) of the Act is “if the company is unable to pay its debts”. Section 466(1)(a) of the Act provides that “A company shall be deemed to be unable to pay its debts if—(a) the company is indebted in a sum exceeding the amount as may be prescribed by the Minister and a creditor by assignment or otherwise has served a notice of demand, by himself or his agent, requiring the company to pay the sum due by leaving the notice at the registered office of the company, and the company has for twenty-one days after the service of the demand neglected to pay the sum or to secure or compound for it to the satisfaction of the creditor to pay its debts”.
The Exemption Order gazetted on 23 April, 2020 now prescribes that the minimum indebtedness under the Act is increased from RM10,000 to RM50,000, raising the threshold by 500% for the Prescribed Duration. The Exemption Order also exempts compliance with the 21 days demand period, permitting compliance within 6 months from the demand instead. The Exemption Order states that companies are exempted from complying “… subject to the condition that any company shall be deemed to be unable to pay its debts … (only) if the company neglects any notice of demand by any creditor to pay its debts … within a period of six months after the notice of demand is served on him.”
The sum result is that for the Prescribed Duration, a company will only be liable to be wound up under S.465 for being unable to pay its debts if it fails to pay a debt exceeding RM50,000 within 6 months of a notice of demand being served upon it. The changes do not affect other legal obligations of companies to comply with other enforcement orders, such as garnishee orders, writs or seizure and injunctions, nor does it affect the ability of a creditor to show that there was a de facto inability to settle debts contrary to the statutory presumption of S.466. Also excluded from the exemption are demand made prior to 23 April, 2020 and demand made against individuals and partnerships.
This would mean that the legislation does not go far enough in protecting unincorporated businesses or those already suffering the consequences of Covid-19 from an earlier period.
It is noted that no corresponding amendment has been made under the Exemption Order to Paragraph 466(2) of the Companies Act which provides that ”A petition to wind up a company shall be filed in the Court within six months from the expiry date of the notice of demand issued under paragraph (1)(a).” This creates a lacuna since creditors can only file a winding up petition against a debtor company 6 months after the service of the notice of demand as a result of the Exemption Order which would put them just beyond the time limit prescribed under Paragraph 466(2) of the Companies Act. It is curious that the current Exemption Order, being a reiteration of a previous order which it revoked, had not been amended to include a provision to address this issue.
With the extension of the Movement Control Order, the need to regulate social and business activities beyond a blanket restriction of movement, has become more apparent. This includes the power to identify and legitimise acceptable compromises within the general movement restrictions to enable some business sectors to resume, which includes any necessary conditions for a relaxation. However this has also raised questions relating to the authority of the government to make these regulations under existing legislation.
On 31st March 2020, the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas (No 2) Regulations 2020 pursuant to sub-section 11(2) of the Prevention and Control of Infectious Diseases Act 1988 [Act 342] (the “Act”), were gazetted by the Health Minister. Since the initial gazette, these regulations have been further amended and extended until 12 May, 2020 by subsequent regulations amending the scope and date of the movement controls (collectively the “MCO Regulations”). The MCO Regulations permit people to leave their homes “to perform any duty in relation to any essential services”. A list of the “essential services” is provided in the Schedule to the MCO Regulations.
New permitted businesses and standard operating procedures
On 10 April 2020, Datuk Seri Azmin Ali, who is the International Trade and Industry (“MITI”) Minister announced that the Malaysian Government would allow a list of industries to operate during the MCO period in addition to the “essential services” already expressly provided for in the MCO Regulations (“Additional Industries”).
Additional Industries includes services and activities previously deemed non-essential and could be allowed through an online application through MITI's website. On its website, MITI has, to date, provided the following standard operating procedures and protocols for approval to operate the Additional Industries during the MCO Period:
(collectively the “SOPs”)
Of these, only the Traditional and Complimentary Medical Services Guidelines were prepared by the Health Ministry. The Legal Services Guidelines were prepared by the Legal Affairs Division of the Prime Minister’s Department, the Construction Guidelines were prepared by the Ministry of Works & the Construction Industry Development Board Malaysia, the R&D Guidelines were prepared by the Ministry of Science Technology and Innovation while the remaining guidelines were all prepared by MITI.
The General Guidelines state that all the relevant ministries and agencies (including the Health Ministry) have access to the MITI portal and all information provided on the MITI portal will be made available to the relevant ministry or agency for processing. The General Guidelines also state that the relevant ministry or agency will give their view on whether the applicant is allowed to carry out its operation and that the processing of the applications involves cross referencing with many relevant databases at the ministry level and the agency level.
What authority do ministries other than the Health Ministry have to impose conditions in respect of essential services under the MCO Regulations?
It is trite to mention that in a constitutional democracy, people are free to do what they wish unless prohibited by laws such as the Penal Code. Freedoms may also be exercised subject to any prescribed legal penalty such as fines or a revocation or denial of permit. It is worth remembering that the source of today's movement restrictions arise out of a health legislation that is not designed to regulate the economy at large or prescribe how businesses should be operated.
Notwithstanding, on 16 April 2020, Senior Minister Datuk Seri Azmin Ali revealed that “MITI is also collaborating with the police and the Department of Labour to monitor the activities of the industries required to comply with the SOPs” He added that “failure of companies to comply with the SOPs will result in the immediate revocation of their approval to operate as well as legal action according to the existing laws”. The MITI Minister is also reported to have said offences committed will be going against the Prevention and control of Infectious Disease (Measures within the Infected Local Area (No. 2) Regulations 2020. Those regulations, however, make no mention of any of the SOPs.
The Minister’s statements which encompass a wide range of businesses and social activities suggest that there is legal and constitutional authority to direct these activities through the SOPs. However, none of these SOPs appear to have been gazetted pursuant to any existing legislation. It may well be that certain business have to conform to the terms of ministerial licences but such licences would expressly state the conditions for their use and validity. It would be unusual for any licensing authority to reserve a general right of revocation based on grounds not hitherto made known to the licencee. This would make commercial life and business in a free and open economy such as Malaysia’s, very uncertain and unattractive.
Consequently, the MITI Minister’s statements raise questions as to whether these ministries and departments other than the Health Minister (in accordance with the Act) have the authority to declare the Additional Industries as “essential services” under the MCO Regulations, and impose conditions for their operation outside of what is currently stated in the MCO Regulations. It also raises the question as to whether a breach of the SOPs could result in an offence in the absence of express legislation empowering the MITI minister to impose these penalties.
Section 11 of the Act only provides that the Health Minister “may, by regulations made under this Act, prescribe the measures to be taken to control or prevent the spread of any infectious disease within or from an infected local area.” This draws into question the power of other Ministers to create their own regulations under the Act.
The Schedule of “essential services” under the MCO Regulations currently includes “Any services, works or industries declared by the (Health) Minister after consulting with the authorities regulating the services, works or industries”. To our knowledge, the Health Minister has not declared any of the Additional Industries referred to in the SOPs as “essential services” under the MCO Regulations. As such, it may be questioned whether Additional Industries are “essential services” pursuant to the MCO Regulations.
The MCO Regulations themselves do not provide any operating procedures in respect of the permitted conduct of the “essential services”. While the Health Ministry has issued some general recommendations in terms of social distancing measures to be taken at home and in the work place, these recommendations have been advisory in nature and do not provide binding regulation regarding the conduct of “essential services”. Regulation 11(1) of the MCO Regulations only provides penalties for “Any person who contravenes any provision of these Regulations or any direction of the Director General or any authorised officer” upon conviction. To our knowledge, neither the Health Minister, the Director General nor any “authorised officer” as defined in the Act, has declared or directed that breach of the SOPs constitutes an offence under the MCO Regulations. This again draws into question the MITI Minister’s reported claim that breach of the SOPs would amount to an offence under the MCO Regulations.
The Malaysian Government’s current model of employing various ministries to address the concerns and issues of the various Additional Industries it seeks to reintroduce for reopening part of the economy during the MCO period and coordinating all applications from those Additional Industries through a single ministry, is well intentioned and arguably pragmatic. However, its legal basis under the current framework of the MCO Regulations or the Act is questionable in the absence of specific legislation empowering the government to make new regulations and manage a wide variety of situations, and may become the source of litigation and legal challenge.
Instead of relying solely on the Act and regulations made under it, it may be preferable that fresh legislation be passed that caters specifically for the exigencies of a pandemic and the needed regulation of the economy that is similar to the Coronavirus Act 2020 of the United Kingdom. The latter deals with a wide range of circumstances (not previously contemplated by prevailing laws) such as human resource management, regulation of gatherings, moratoria on litigation by landlords and operation of ports, amongst many other areas that are affected and require constructive legal remedies.
However, with a full parliamentary sitting not expected until July, an unsatisfactory regulatory environment will persist giving rise to many potential legal disputes.
Raslan Loong, Shen & Eow
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