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Volume 16 Issue 8, 2019

Resolut
e i
t

on
Dispu

Plus:
Internet courts in Cayman: Economic Forensic
China substance investigations
Improving efficiency, What firms really need LIO on the role of
cutting costs to know corporate counsel

| MAGAZINE FOR THE IN-HOUSE COMMUNITY ALONG THE NEW SILK ROAD |
Feature contributors
Louise Bowmaker is a barrister and legal consultant in Horizons & Co’s
Nick Ferguson – Managing Editor arbitration team. Predominantly focused on complex construction and con-
nick.ferguson@inhousecommunity.com
tractual disputes, she advises a number of high-profile clients, including
Leo Yeung ­– Design Manager major property developers in the Dubai real estate market. In addition to the
leo.yeung@inhousecommunity.com
enforcement of arbitration awards in the UAE, she advises on arbitrations
Wendy Chan –­ Global Head of Events
wendy.chan@inhousecommunity.com and procedures in the Dubai International Arbitration Centre, the Dubai
International Financial Centre Courts and Arbitration Centre and the Abu
Rahul Prakash – Publisher
rahul.prakash@inhousecommunity.com Dhabi Commercial Conciliation and Arbitration Centre.

Yvette Tan – Head of Research and


Community Development
yvette.tan@inhousecommunity.com

Yannie Cheung – Office Administrator Philip Jeyaretnam is chairman of Maxwell Chambers. He is also global vice
yannie.cheung@inhousecommunity.com
chair and regional CEO of Dentons Rodyk & Davidson. He specialises in
Tim Gilkison – Managing Director commercial litigation and international arbitration work as counsel. His pro-
tim.gilkison@inhousecommunity.com
fessional and public service has included serving as a member of the Public
Patrick Dransfield ­– Publishing Director
Service Commission, the constitutional body that oversees the public service
patrick.dransfield@inhousecommunity.com
in Singapore, since 2010, and as a member of the Presidential Council for
Arun Mistry – Director
Minority Rights since 2012, and as President of the Law Society of Singapore
from January 2004 to December 2007.
Editorial Enquiries
Tel:........................ (852) 2542 4279
editorial@inhousecommunity.com

Advertising & Subscriptions


Tel: ....................... (852) 2542 1225 Yun Zhao is Henry Cheng Professor in International Law and head of
rahul.prakash@inhousecommunity.com department of law, The University of Hong Kong.

Published 10 times annually by


Pacific Business Press Limited
Room 2008, C C Wu Building,
302-8 Hennessy Road, Wan Chai,
Hong Kong S.A.R.

Publishers of
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• IN-HOUSE CONGRESS events
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• www.inhousecommunity.com A mutually supportive community of In-House Counsel helping In-House Counsel and Compliance
• www.mycareerinlaw.com Professionals meet their ethical, legal and business commitments and responsibilities within
their organisations.
Forums for the In-House Community
along the New Silk Road The In-House Community comprises over 20,000 individual in-house lawyers and those with a
© 2019 Pacific Business Press Limited responsibility for legal and compliance issues within organisations along the New Silk Road, who we
and contributors reach through the annual In-House Congress circuit of events, Asian-mena Counsel magazine and
Weekly Briefing, and the In-House Community online forum.
Opinions expressed herein do not constitute
legal advice, and do not necessarily reflect the
views of the publishers.

ISSN 2223-8697 Empowering In-House Counsel along the New Silk Road
In this issue Volume 16 Issue 8, 2019

Resolut
t e i

on
Dispu

26. UAE – Dynamism in business and dispute resolution in the Gulf


With a variety of new legislation in the emirates, Louise Bowmaker
of Horizons & Co looks at some of the most significant recent and
upcoming changes

30. Internet courts in China


The wider use of technology in the litigation process in China’s
internet courts improves litigation efficiency and reduces costs,
writes Yun Zhao of The University of Hong Kong

32. SCIA’s innovation: Optional appellate arbitration in China


Shenzhen Court of International Arbitration’s substantive appellate
mechanism constitutes a beneficial complement to the finality of
single-instance arbitration

38. Introducing Chinese arbitration to the world


Through open dialogue, BAC is developing the knowledge and
expertise to become a leading hub for the international arbitration
community

42. Maxwell Chambers expands dispute resolution hub


Chairman Philip Jeyaretnam on the opening of Maxwell Chambers
Suites and how it will affect dispute resolution in the region

2 www.inhousecommunity.com
JURISDICTION UPDATES
Key legal developments affecting the In-House Community along the New
Silk Road

4 How Nigeria is going local 4


By Osayaba Giwa-Osagie of Giwa-Osagie & Co

6 New Regulation on Foreign Construction Representative


Offices and Construction Foreign Investment Companies
By Heru Mardijarto, Dirgantara Adi Nugroho, Stephen Sim of
Makarim Taira S

8 Developments in the Philippine Competition Commission’s 8


enforcement activities
By Korina Ana T Manibog of ACCRALAW

10 In Korea, a licensee is now considered an interested party


who may invalidate a patent
By Hwan-Jun Noh of Lee International

12 Tightened policy on import of used machineries, equipment



and technological lines 10
By Ha Thi Hai of bizconsult

14 OFFSHORE UPDATE
Economic substance: The reality — what firms really need to know
By James Gaden and Alice Molan of Walkers

16 THE BRIEFING
Along with the latest moves and jobs, we take a closer look at Hong
Kong’s first non-government listed bonds and review our events in Kuala
12
Lumpur and Shenzhen

22 SPOTLIGHT ON CIA (Collections, Investigation & Audit)


Forensic investigations, the role of corporate counsel and the rise of
information governance
Head of forensics, Erick Gunawan, discusses the role of corporate
counsel in the context of litigation or investigation, and the increasing
importance of information governance 22
46 ASIAN-MENA COUNSEL DIRECT
Important contact details at your fingertips

Asian-mena Counsel is grateful for the continued editorial contributions of:

Volume 16 Issue 8, 2019 3


JURISDICTION UPDATES

AFRICA

Giwa-Osagie & Co, Lagos – a Lex Africa member firm


Tel: (234) 1 2806 942
By Osayaba E: osayaba@giwa-osagie.com
Giwa-Osagie W: www.giwa-osagie.com

How Nigeria is going local

P romoting “indigenisation” in the Nigerian


economy was the subject of a recent Lex
Africa seminar, which asked how foreign inves-
“The Escravos gas-to-
education scholarships to Nigerian seamen and
helped 600 community graduates register for the
Nigeria Oil and Gas Industry Content Joint
tors were forging partnerships with local players, liquids project in the Niger Qualification System.
using local content and local manufacturing The Escravos gas-to-liquids project in the
capacity and transferring valuable work skills. Delta has provided jobs for Niger Delta has provided jobs for more than
There was no shortage of success stories 15,000 local people during its construction
more than 15,000 local
emanating from the gathering in London. phase.
Most noteworthy has been the massive job people during its Regulatory incentives have included creating
of fabricating and integrating six modules of oil “pioneer” status for companies in developing
producer Total’s new floating production and construction phase” economic sectors, such as agriculture. This pro-
storage offshore vessel, which will operate in the vides for tax holidays for certain periods of time
ultra-deep-water Egina oil and gas field 200km to stimulate enterprise growth and expansion.
off the Port Harcourt coast. On the subject of skills transfer and support There are also export duty incentives for
The work, carried out at the Saipem and for local communities by multinationals, oil giant locally produced goods, while the federal gov-
Hyundai Heavy Industries yard in Lagos, took six Shell has increasingly used locally made goods ernment has also placed a ban on access to for-
million man-hours, creating hundred of jobs and and service companies and in 2017 concluded eign exchange for importation of certain items,
bringing multi-dimensional development in its contracts worth US$760 million with Nigerian such as rice and cement.
wake. Importantly, an estimated US$5 billion in companies.
costs was retained in Nigeria, instead of the Rival company Chevron plays an active role
expenditure going to foreign economies, as has in the Oil Producers Trade Section of the Lagos
previously been the case with such projects. Chamber of Commerce and Industry, working
Other shining local content examples in the with monitoring agencies and legislators on local
oil and gas sector have been fabrication of the content development issues.
jacket for the Amenam drilling platform at Warri’s It was also mentioned that Chevron has
Globestar shipbuilding yard; Saipem yard’s man- trained 161 Nigerians in welding, fabrication and
ufacture of the Okpoho platform, and a well- craft for its Sonam Development Project at the
LEX Africa is an alliance of law firms with over
jacket and helipad for ChevronTexaco’s Mere-X, Nigerdock facility on Lagos’s Snake Island.
600 lawyers in 25 African countries formed in
which was built by Transcoastal Nigeria. All these Among further initiatives, Chevron has
1993. More information may be found on
large projects created jobs, built local capacity sponsored four Nigerian engineers for subsea
www.lexafrica.com.
and stimulated the Nigerian economy. engineering training in France, offered further

Empowering In-House Counsel along the New Silk Road

4 www.inhousecommunity.com
JURISDICTION UPDATES

INDONESIA

Summitmas I, 16th – 17th Floors, Jl. Jend. Sudirman Kav. 61-62, Jakarta 12190, Indonesia
Tel: (62) 21 5080 8300 / Fax: (62) 21 252 2750
E: heru.mardijarto@makarim.com
E: dirgantara.nugroho@makarim.com
By Heru Mardijarto, Dirgantara Adi Nugroho, E: stephen.sim@makarim.com
Stephen Sim E: info@makarim.com
W: www.makarim.com

New regulation on Foreign Construction Representative Offices


and Construction Foreign Investment Companies

O n 13 June 2019, the Minister of Public


Works and Public Housing (“MPW”) issued
Regulation No. 09/PRT/M/2019 on Guidelines on
other hand, a PMA Licence will only become
effective after several commitments, such as
SBU, completion of investment requirement
E. Foreign manpower restriction
Reg No. 9/2019 now imposes a more strin-
gent manpower requirements for BUJKA RO
Licensing Services for Foreign Construction and shareholding requirements, have been as BUJKA RO is now required to employ more
Business Entities (“Reg No. 9/2019”) replacing: (i) completed. Indonesian experts than foreign experts. This
MPW Regulation No. 10/PRT/M/2014 on provision has not been expressly governed
Guidelines on Issuing Licence to Representatives B. Shareholders requirements for a PMA under the previous regulation.
of Foreign Construction Service Corporate Bodies Construction Company
(“Reg No. 10/2014”); and (ii) MPW Regulation Reg No. 9/2019 provides a more stringent F. Requirements to engage in
No. 03/PRT/M/2016 on Technical Guidelines on requirement on the foreign shareholders of a construction services
Issuing Construction Service Business Licence to PMA Construction Company, as Reg No. Reg No. 9/2019 now requires a BUJKA-RO to
Foreign Investment Construction Service 9/2019 now requires them to have a large engage in at least 1 (one) construction service
Enterprises as amended by MPW Regulation No. qualification. However, it remains to be seen during the term of the BUJKA RO Licence,
30/PRT/M/2016 (“Reg No. 3/2016”). Reg No. how the MPW determines the large qualifica- otherwise its licence will be revoked.
10/2014 and Reg No. 3/2016 are collectively tion of the foreign shareholder. Reg No. 9/2019 also requires a PMA
referred to as “Old Regulations”. Construction Companies to engage in at least
Reg No. 9 /2019 provides more details than C. Partners for joint operations for 1 (one) construction service during the term of
the Old Regulations. Although, most of the provi- BUJKA-RO the SBU, otherwise its licence will be revoked.
sions under Reg No. 9/2019 are the same as Reg No. 09/2019 no longer allows for a Note that under Reg No. 9/2019, if BUJKA
those of the Old Regulations, Reg No. 9/2019 BUJKA RO to form a joint operation with a RO Licence/ PMA Licence is revoked it can
introduces some significant changes to the foreign investment construction company. only be reapplied at least 5 (five) years after the
provisions related to Foreign Construction Previously, under Reg No. 10/202014 a original licence was revoked.
Representative Offices (“BUJKA-RO”) and con- BUJKA RO may form a joint operation with a
struction foreign investment companies (“PMA foreign investment company (subject to the G. Requirements for an extension of a
Construction Company”) which are outlined as fulfilment of several conditions and has been BUJKA-RO Licencse
below: approved by MPW). BUJKA-RO now must extend its licence before
the licence expire, otherwise, the BUJKA-RO
A. The licensing procedure for a D. Requirements for the Person in Charge will have the following progressive sanctions
BUJKA-RO Licencse of the BUJKA-RO imposed on it, ie written warning, being black-
Reg No. 9/2019 finally addresses the issues in Under Law No. 2 of 2017 on Construction listed and eventually having its licence revoked.
the procedures for applying for a licence for a and Reg No. 9/2019 Person in Charge of the
BUJKA-RO (“BUJKA RO Licence”) and for Business Entity (“PJBU”) of BUJKA RO must be *****
PMA Construction Company (“PMA an Indonesian national. This article was prepared by the Indonesian
Licence”) through the Online Single Reg No. 9/2019 provides that if the Indonesian law firm, Makarim & Taira S. It is only intended to
Submission (“OSS”) system. Under Reg No. citizen does not meet the criteria for a PJBU, inform generally on the topics covered and should
9/2019, a conditional BUJKA RO Licence and the Indonesian citizen’s position can be that of not be treated as a legal advice or relied upon
conditional PMA Licence will be issued by the Technical Person in Charge of the Business when making investment or business decisions.
OSS before the issuance of the business Entity (Penanggung Jawab Teknis Badan Usaha Should you have any questions on any matter
entity certificate (“SBU”). – PJTBU). The criteria for a PJBU will be regu- contained herein or other comments generally,
A BUJKA-RO Licence will only become effec- lated further under a separate MPW regulation please contact your usual M&T contact or adviso-
tive after it has obtained the SBU. On the which has not been issued yet. ries@makarim.com.

6 www.inhousecommunity.com
JURISDICTION UPDATES

PHILIPPINES

By Korina Ana Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW)
T Manibog Tel: (63) 2 830 8000
E: ktmanibog@accralaw.com
W: www.accralaw.com

Developments in the Philippine Competition erally low. Further, customers can easily switch
between fumigators without incurring any signifi-
Commission’s enforcement activities cant additional cost (ie, switching costs were low).
Recently, the Enforcement Office filed a case

E arly this year, the Philippine Competition


Commission (PCC) Enforcement Office
launched a leniency/whistleblower programme
full administrative investigations. Two of those full
administrative investigations have been closed.
One of the closed investigations involved the
against a mass housing developer for imposing an
exclusive internet service tie-up on its tenants,
preventing them from availing of the services of
offering immunity from suit and reduction of fines Philippine Academy of Ophthalmology (PAO) and other internet service providers. Aside from pre-
to cartel members who will provide information Philippine Health Insurance Corporation venting other providers from installing fixed-line
that will help the PCC investigate and prosecute (PhilHealth). The PAO’s mission guidelines internet on units, the developer also prevented
cartels. This forms part of the PCC’s increased requires ophthalmologists to first obtain permis- other providers from marketing to the condo-
efforts in cracking down on anti-competitive sion from the PAO or the local ophthalmologist of minium residents. It marks the first time the
agreements and conduct. an area before they can conduct a medical mission Enforcement Office has filed a case for abuse of
The Philippine Competition Act (PCA) pro- in the area. Philhealth will not compensate the dominant position under the PCA. It will be inter-
hibits anti-competitive agreements such as price- ophthalmologists conducting the medical mission if esting to see how the case will turn out as it will
fixing and bid-rigging, and other agreements which such permission is not obtained from the PAO or set the standard of how similar cases will be pros-
have the object or effect of substantially prevent- the local ophthalmologist of the area. The ecuted in the future.
ing, restricting or lessening competition. It also Enforcement Office raised competition concerns Competition law is a relatively new concept
prohibits an entity/entities from abusing its domi- regarding the foregoing practice because by in the Philippines, hence many businesses may not
nant position by engaging in conduct that would requiring visiting groups to get permission from even be aware that they are engaging in activities
substantially and negatively affect competition. PAO/the local ophthalmologists before they can or are parties to agreements that may be consid-
Companies face up to P250 million (US$4.9m) in conduct a medical mission, the PAO effectively ered as anti-competitive. They may be engaged in
fines if found guilty of these acts. imposed a barrier to entry, effectively limited agreements or conduct which may have been
Businesses were given a period of two years competition and facilitated the division of practice permitted before, but which must now be reeval-
from the effective date of the law to reorganise territory. However, despite such competition uated in light of the PCA and the expiration of the
their business structure or to renegotiate agree- concerns, the investigation was closed as the par- two-year transitory period. This is why it is impor-
ments in order to comply with provisions of the ties were able to rectify the foregoing acts within tant for practitioners to remain abreast of develop-
PCA. Ever since the transitory period ended last the transitory period. ments in this emerging field, so that they can
August 8, 2017, the PCC has been more aggres- The other closed investigation involved the effectively guide businesses in complying with the
sive in its enforcement activities. vessel fumigation business. The unnamed com- provisions of the PCA.
Some of the industries that have been the plainant alleged that certain inspection companies As the PCC increasingly expands its capabili-
subject of probes by the PCC include the garlic were engaged in irregular post-fumigation inspec- ties in investigating and prosecuting anti-competi-
industry, international shipping lines (specifically, tion to undermine the business reputation of the tive agreements and conduct, businesses and
the imposition of unnecessary shipping charges on complainant, and that a major fumigation com- competition law practitioners must keep up.
shippers) and the cement industry. More recently, pany was involved in the scheme. The
The views and opinions expressed in this article
the PCC has expressed its intention to look into Enforcement Office did not find any evidence are those of the author. This article is for general
an alleged cold storage cartel in the onion indus- which supported collusion among the inspectors. informational and educational purposes, and not
offered as, and does not constitute, legal advice
try, and to probe whether recent power plant The Enforcement Office also noted that the major
or legal opinion.
outages are an intentional scheme among power fumigation company allegedly involved in the
suppliers to raise electricity prices. It is also inves- scheme did not have sufficient market power to (Note: This article first appeared in Business World, a
newspaper of general circulation in the Philippines.)
tigating allegations of bid rigging involving a gov- be considered as dominant in the vessel fumiga- The author is an Associate of the Corporate and Special
ernment project awarded in 2017. tion market. They also noted that there were Projects Department of the Angara Abello Concepcion
Regala & Cruz Law Offices (ACCRALAW). She may be
In 2018, the Enforcement Office opened 11 many players in the vessel fumigation market, and contacted at ktmanibog@accralaw.com or (632) 830-
preliminary inquiries, nine of which ripened into that barriers to entry into the business were gen- 8000.

8 www.inhousecommunity.com
JURISDICTION UPDATES

SOUTH KOREA

Poongsan Bldg. 23 Chungjeongro, Seodaemun-gu, Seoul 03737, Korea


Tel: 82 2 2262 6059 / Fax: 82 2 2279 5020
By Hwan-Jun E: hjnoh@leeinternational.com
Noh W: www.leeinternational.com

In Korea, a licensee is now considered an interested


party who may invalidate a patent

O n February 21, 2019, the Korea Supreme


Court issued a decision making it clear that
a licensee is an interested party who may file a
“The Supreme Court
In its judgment dismissing the appeal, the
Supreme Court clarified its previously mixed posi-
tion by ruling that a licensee of a patent also is an
petition to invalidate a patent for which he holds a clarified its previously interested party with a right to file a petition to
licence. mixed position by ruling invalidate the licensed patent. The Supreme
Article 133(1) of the Patent Act states that an Court noted that because a licensee is usually
interested party or an examiner may file a petition that a licensee of a patent subject to certain restrictions and obligations such
for trial to seek the invalidation of a patent. The as an obligation to pay royalties, limitations as to
also is an interested party
reason for allowing only an interested party and an the scope of the licence, etc, the licensee may be
examiner to file a petition for such a trial is to with a right to file a freed from such restrictions and obligations by
prevent wasting the time and administrative receiving an invalidation decision on the patent
petition to invalidate the
resources of the Korean Intellectual Property Trial through an invalidation trial. Additionally, the court
and Appeal Board in having to address potentially licensed patent” observed that even when a patent has been
excessive filings of trial petitions. This comes from improperly granted, it continues to exist validly
a principle recognised under the Civil Procedure until an invalidation decision on the patent has
Act: “No interest, no right to bring an action.” loss caused by the registered patent. been confirmed. Further, even though a petition
Here, an “interested party” refers to a person In the recent Supreme Court case, the plain- for an invalidation trial is filed, it will still take some
who would or might be legally harmed by the tiff was a patent holder and the defendant was a time and expense to get an invalidation decision
granting of a patent on an invention and who licensee who had a right to exercise the patented confirmed. Therefore, notwithstanding defects in
would have a direct and practical interest in extin- invention of the plaintiff. The defendant filed a peti- the patent, a person who wants to exercise the
guishing such a patent. This includes any person tion to invalidate the patent on the plaintiff’s inven- patent immediately may obtain a licence from the
who produces/sells or intends to produce/sell the tion and the Korean Intellectual Property Trial and patent holder first, postponing the dispute on
same kind of product as the patented invention. Appeal Board upheld the defendant’s right to bring whether the patent is invalid.
However, it was unclear whether a licensee an invalidation action, even though the defendant Unlike other major jurisdictions such as the
could file a petition for an invalidation trial. In some was a licensee of that same patent. The plaintiff US, Japan, China and Europe where standing to
invalidation cases, the court ruled that the grant of appealed that decision at the Patent Court, but the file a petition to invalidate a patent is quite broad,
a licence cannot lead to the loss of an interest Patent Court upheld the decision of the Korean in Korea the scope of who is considered an inter-
which enables the claimant to file a petition for an Intellectual Property Trial and Appeal Board. The ested party with a right to file a petition for invali-
invalidation trial. But in other cases, decided about plaintiff then filed a further appeal, arguing that the dation has been quite narrowly construed. This
the same time, the court denied that a licensee defendant licensee was not an interested party has prevented licensees from filing petitions to
had a recognised interest, stating that a licensee and did not have the legal right to file an invalidity invalidate patents. This new case now corrects
would be free from patent disputes with the pat- action against the licensed patent. That appeal was that, opening the door for more parties to chal-
ent holder and therefore free from any business dismissed by the Supreme Court. lenge the validity of patents in Korea.

Find the Asian-mena Counsel JURISDICTION UPDATES archived at


www.inhousecommunity.com

10 www.inhousecommunity.com
JURISDICTION UPDATES

VIETNAM

Hanoi: VNA Building, 20 Tran Hung Dao Street, Hoan Kiem District, Hanoi, Vietnam
Tel: (84) 0 24 3933 2129, Fax: (84) 0 24 3933 2130, Mobile: (84) 98 513 6613
By Ha Thi Hai E: haiht@bizconsult.vn
E: info-hn@bizconsult.vn
Ho Chi Minh: Room 1103, 11th Floor, Sailing Tower, 111A Pasteur, District 1, Ho Chi Minh City, Vietnam
Tel: (84) 0 28 3910 6559, Fax: (84) 0 28 3910 6560
E: info-hcm@bizconsult.vn
W: www.bizconsult.vn

Tightened policy on import of used machineries,


equipment and technological lines

F rom 2015, the import of used machineries


and technological lines is subject to the
Circular 23/2015/TT-BKHCN, which contains
(QCVN) for a machinery or technological line to
be imported, it must be manufactured in
conformity with technical indicators of Vietnam’s
technological lines are not subject to import
approval from the Ministry of Science and
Technology.
some inadequate points causing difficulties in Standards (TCVN) or Standards of G7 countries To be imported into Vietnam, used
import of used machineries, technological lines, or Korea with regard to safety, energy saving and machineries, equipment, technological lines must
especially those of more than 10 years old in fact. environmental protection. obtain an Assessment Certificate from a licensed
The provision that import of used machineries and Regarding used machineries and equipment, assessment company to assess their satisfaction
technological lines for an investment project must the Decision retains the general rule that used with provided conditions by laws. The assessment
be approved by the investment registrar authority machineries and equipment are only qualified for certificate issued by the assessment company is
was totally unreasonable and in fact unenforcea- import if their ages do not exceed 10 years. required by the new Decision to conclude many
ble, which caused difficulties not only for import However, the Decision loosens the maximum age more contents than previously, such as assessment
companies but also investment authorities. for some specific machinery in the areas of method and procedure, name-number of
Meanwhile, the Circular required import compa- mechanics (machine tools for working metals and standard QCVN, TCVN or G7, Korea about
nies to obtain approvals from the Ministry of other types of materials), wood production and safety, energy saving and environmental
Science and Technology, but was silent on the processing, and paper and paper pulp production protection, conclusion on satisfaction to each
specific procedure to do so, resulting in import to 15 or 20 years. Machineries over the provided condition provided by laws.
companies’ confusion and inactivity. maximum age are subject to import approval from Therefore, in fact, the assessment procedures
Repairing the shortcomings of Circular 23, the Ministry of Science and Technology, which by the assessment companies will be much more
the Prime Minister issued the new Decision shall only be granted if remaining capacity or complicated and lengthy as the assessment
18/2019/QD-TTg to provide for a better legal performance achieves 85 percent or above of the companies shall have to prove the applicable
framework for import of used machineries and machinery/equipment’s design capacity or standard and assessment method. This is not such
technological lines, which helps in the restriction performance, and amount of raw materials or an easy job as before as now the assessment
of trash imports into Vietnam. In principle, like energy consumed does not exceed 15 percent of company must determine the applicable standards,
most other countries in the world, it is prohibited its design consumption level. then choose the assessment method suitable to
to import into Vietnam any used machinery, Unlike the previous Circular 23 which such machines and prove the assessment method
equipment or technological lines that have been provided the same conditions for used and applicable standards. It may take some days
discarded as announced by exporting countries machineries/equipment and technological lines, for assessment on some big and old machines.
due to their obsolescence or low quality, causing the Decision 18/2019/QD-TTg requires more Especially, assessment of a used technological line
environmental pollution; or failure to satisfy safety, conditions for technological lines than machineries must be conducted at the exporting country while
energy saving or environmental protection and equipment. Technological lines are not subject the technological line is operating. Practically,
requirements. In Vietnam, only the import of used to the condition on maximum age, and must importers are advised generally to conduct the
machinery, equipment and technological lines satisfy the condition on remaining capacity and assessment on used machineries and equipment
meant to directly serve the manufacturing of material and energy consumption level as at the exporting country as well because if the
enterprises in Vietnam is allowed. Used mentioned above. Furthermore, technologies of assessment is conducted on arrival in Vietnam and
machineries and technological lines must be the technological line to be imported must not be any condition may be concluded to be unsatisfied
manufactured in accordance with National prohibited or restricted from transferring, and after the assessment, the importer shall be applied
Technical Regulations (QCVN) on safety, energy being applied by at least three manufacturers of with heavy fines and the machineries shall be
saving, and environmental protection. In case of member countries of Organisation for Economic deported, which is not only costly but also badly
unavailability of National Technical Regulations Cooperation and Development (OECD). Used affects the importer’s reputation in Vietnam.

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2019

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JURISDICTION
OFFSHORE UPDATE
UPDATES

15th Floor, Alexandra House, 18 Chater Road, Central, Hong Kong


T: (852) 2596 3433, (852) 2596 3425
E: james.gaden@walkersglobal.com
E: alice.molan@walkersglobal.com
W: www.walkersglobal.com
By James Gaden and
Alice Molan

Economic substance: required, from onshore regulatory and tax special-


ists. Engaging with onshore advisers will be impor-
The reality — what firms really need to know tant, particularly in regulated sectors such as fund
management, insurance, and banking, because

W hile some of the reactions to the Cayman


Islands’ introduction of The International
Tax Co-operation (Economic Substance) Law,
“Compliance may not be as
there may be onshore rules which come into play,
or which affect implementation of your compli-
ance plan.
2018 (Substance Law) have been less than posi-
overwhelming as certain Redomiciliation is unlikely to be necessary or
tive, the reality is that the Substance Law is a set of market participants have useful. Firstly, the Substance Law does not present
rules that fairly elegantly address OECD require- an opportunity for jurisdictional arbitrage: in order
ments for geographically mobile activities to have
sought to project” to stay off the EU “blacklist” on non-cooperative
economic substance. Similar legislation is being jurisdictions, many countries have, or will, intro-
enacted in all OECD-compliant jurisdictions with Secondly, even if an entity is a relevant entity, duce rules similar to the Substance Law.
no or nominal tax, including Bermuda, the British it will only be required to maintain economic sub- Secondly, compliance may not be as over-
Virgin Islands, Guernsey and Jersey. The intention stance if it is conducting a relevant activity. It’s only whelming as certain market participants have
of the Substance Law is that if a “relevant” entity is if a Cayman relevant entity is being used to under- sought to project: satisfying some degree of eco-
engaged in one of nine geographically mobile take the business of IP holding, providing credit nomic substance has been a feature of the global
activities which the OECD identified as part of the facilities, insurance, banking, shipping, providing regulatory framework for some time. The fact that
Base Erosion and Profit Shifting report, then unless distribution and service centre operations, provid- it is being introduced in the Cayman Islands now
it is tax resident in another jurisdiction it will either: ing headquarters related services, discretionary is simply an indication of that jurisdiction once
(a) have to comply with the Substance Law; or (b) fund management or holding company business again demonstrating a willingness to implement
cease that activity. that it will need to consider the Substance Law and global best practice, with laws that are consistent
However, suggestions that the Substance how it can demonstrate adequate substance. with the requirements of industry.
Law means that all offshore operations need to be But even if an entity is a relevant entity which At least in the investment funds community,
redomiciled to an onshore jurisdiction (where is conducting relevant activity, it does not need to the Cayman Islands continues to be the jurisdic-
they will likely be subject to other compliance cease carrying on business in Cayman, or redomi- tion of choice for managers and investors alike.
regimes, as well as audits) is, in the vast majority of cile to comply. Outsourcing solutions are already This is not simply because it is a tax-neutral juris-
cases, an overreaction, or simply incorrect. being developed, and there is a wealth of legal, diction. It is because its regulators and legal system
In summary, the Substance Law states that if compliance and corporate services expertise in the continue to require that market participants com-
a “relevant entity” (a Cayman company, LLC or Cayman Islands that can be tapped to assist to ply with high standards of governance, while pro-
limited liability partnership) is carrying on one or provide practical solutions to ensure compliance. viding an environment that is cognisant of the
more of nine listed “relevant activities”, it has to In relation to entities carrying on holding requirements of commerce.
maintain “adequate” economic substance in company business (as defined), the guidance indi- Cayman was one of the first jurisdictions to
Cayman, which will require it to determine ade- cates that reduced substance requirements apply, enter into an Intergovernmental Agreement with
quacy having regard to the type and scale of rele- which may be met via the entity’s Cayman regis- the US to implement FATCA, was an early adopter
vant activity and the extent (if any) that relevant tered office and compliance with existing manda- of CRS, was nimble in implementing a sensible
income is generated. tory filing requirements. beneficial ownership register regime, and regularly
Firstly, in many cases a Cayman entity is not a At this stage, as the Substance Law is a updates its anti-money laundering rules to reflect
relevant entity. Investment funds (as broadly Cayman Islands regulatory issue, the first step to international best practice. It has a robust legal
defined within the Substance Law) are out of compliance should be to engage with your system with highly competent regulators. This is
scope. Exempted limited partnerships (the gold Cayman Islands counsel to assess if entities in your why the investment community continues to have
standard vehicle for PE funds) are out of scope. group are in scope. Counsel should then be strong faith in Cayman as a jurisdiction. The imple-
Trusts are out of scope. Entities that are tax resi- tasked with developing a compliance solution for mentation of the Substance Law continues this
dent in another jurisdiction are also not in scope. the particular facts and circumstances with input, if tradition.

14 www.inhousecommunity.com
FIND A LAWYER ...
SOUTH KOREA EXTERNAL COUNSEL

For detailed profiles and to Find a Lawyer in other jurisdictions,


please visit https://www.inhousecommunity.com/find-a-lawyer/, or scan this QR Code.

Find an External Counsel by Practice and Jurisdiction


... AND SEND THEM AN

Hoseok JUNG Nicholas H. Park


Jurisdiction: South Korea Jurisdiction: South Korea
Email: hoseok.jung@seumlaw.com Email: npark@leeinternational.com
Firm: SEUM Law Firm: Lee International IP & Law Group
Title: Managing Partner Title: Senior Foreign Attorney
Phone: (82) 2 562 3115 Co-managing Partner
Experience/Expertise: Alt’ Investments (inc’ Private Phone: (82) 2 2262 6013
Equity), Compliance/Regulatory, Corporate/Mergers & Experience/Expertise: Alt’ Investments (inc’ Private
Acquisitions, Cybersecurity & Privacy, FinTech, Litigation and Equity), Anti-trust/Competition, Banking and Finance,
Dispute Resolution, Telecoms, Media & Technology Capital Markets, Compliance/Regulatory, Corporate/Mergers
& Acquisitions, Employment/Labour, Intellectual Property,
Litigation and Dispute Resolution, Life Sciences/Healthcare,
Jinsu Jeong Maritime & Aviation, Project Finance, Real Estate &
Construction, Restructuring & Insolvency, Taxation,
Jurisdiction: South Korea
Telecoms, Media & Technology
Email: jsjeong@yoonyang.com
Firm: Yoon & Yang LLC
Title: Managing Partner
Phone: (82) 2 6003 7103
Experience/Expertise: Capital Markets, Litigation and
Sung Jin Kim
Jurisdiction: South Korea
Dispute Resolution
Email: sungjin.kim@bkl.co.kr
Firm: Bae, Kim & Lee LLC
Title: Managing Partner
Kun Su Mok Phone: (82) 2 3404 0125
Jurisdiction: South Korea Experience/Expertise: Litigation and Dispute Resolution,
Email: mokks@hmplaw.com Project Finance, Real Estate & Construction
Firm: HMP Law
Title: Managing Partner,
Corporate Practice Group
Phone: (82) 2 772 2702 Yong-Hyeon Kang
Experience/Expertise: Alt’ Investments (inc’ Private Jurisdiction: South Korea
Equity), Corporate/Mergers & Acquisitions, International Email: yonghyeon.kang@bkl.co.kr
Trade, Investigations & Due Diligence, Life Sciences/ Firm: Bae, Kim & Lee LLC
Healthcare, Restructuring & Insolvency Title: Managing Partner
Phone: (82) 2 3404 0184
Experience/Expertise: Banking and Finance, Litigation and
Kye Sung Chung Dispute Resolution, Real Estate & Construction

Jurisdiction: South Korea


Email: kschung@kimchang.com
Firm: Kim & Chang For more information on how to have your profile
Title: Managing Partner
in the ‘Find a Lawyer’ search tool,
Phone: (82) 2 3703 1102
Experience/Expertise: Banking and Finance, Corporate/
please email our Publisher, Rahul Prakash, at
Mergers & Acquisitions rahul.prakash@inhousecommunity.com

Volume 16 Issue 8, 2019 15


THE BRIEFING

EVENT REPORTS

In-House Congress Shenzhen


M ore than 120 in-house lawyers from both
Shenzhen and Hong Kong gathered together
to learn from each other and to hear briefings
a true manifestation of the existing strength and
future of the Greater Bay Area. We look forward
to more such collaborations across Greater China,
from private practice workshops in June. The In- and bringing constructive cross-fertilisation for
House Community was especially proud to work our 5,314 In-House Community members across
in conjunction with CCPIT and the Hong Kong Shenzhen, Hong Kong, Beijing and Shanghai. With
Department of Justice, the Hong Kong Interna- our further thanks to Conyers, JunZeJun Law
tional Arbitration Centre and the Shenzhen Court Offices (Shanghai), Latham & Watkins, MWE China
of International Arbitration in a gathering that was Law Offices and Zhong Lun Law Firm.

A special thanks on behalf of the In-House Community™ to all our speakers, which included:

“The day proved really useful and I found that the topics chosen connected
directly to my daily work” General Counsel, China Tech Company

Anna Chong Wynne Lau Professor Yuwen Li Joe Liu Patrick Yuan
Partner Counsel Erasmus University Deputy Secretary- Partner
Conyers Dill & Conyers Dill & Rotterdam General Junzejun (Shenzhen)
Pearman Pearman Hong Kong Law Firm
International Arbitration
Centre

Fei Jia Hui Xu Annie Froehlich Michael Lin Michelle Gon


International Partner Partner, Beijing Counsel Partner Partner
King & Wood Latham & Watkins Washington D.C., Marks & Clerk Hong McDermott Will &
Mallesons Latham & Watkins Kong Emery (Strategic
Alliance – MWE China
Law Offices)

Norman P. Ho Yang Tao Gary Gao Robert Lewis Patrick Dransfield


Associate Professor Assistant President Partner and Head of Senior International Publishing Director
Peking University Shenzhen Court of Compliance Team of Counsel Asian-mena Counsel
School of Transnational International Arbitration Beijing Zhong Lun Law Firm and Co-Director,
Law Zhong Lun Law Firm In-House Community

16 www.inhousecommunity.com
In-House Congress Kuala Lumpur
T he 2019 In-House Congress Kuala
Lumpur proved as lively as ever with
two panels on technology and talent man-
agement, witnessed by more than 190 of
Malaysia’s top legal and in-house community.
Patrick Dransfield of In-House Community
was joined on the technology panel by
William Greenlee of DFDL, Yen Lee Sim of
Schneider Electric, Hanim Hamzah of ZICO
Law, and Eric Chin, principal of Alpha Cre-
ates. Our second panel on talent manage-
ment included Glynn Cooper of Herbert
Smith, Elias Moubarak of Trowers & Ham- also included workshops from Kadir Andri,
lins, and Hanim Hamzah and Dalvin Kaur of Christopher & Lee Ong, Clyde & Co, Shaikh
Maybank Kim Eng Investment Bank. David & Co and Trowers & Hamlins on vari-
In general, the event was extremely well ous topics, including: tech; emerging trends
received by our Malaysian In-House Com- in M&A; Islamic finance in M&A transac-
munity, with one delegate summing up that tions; regional white collar and regulatory
all the Workshops were mindful of local legal enforcement; mitigating risk in cross-border
trends and highly relevant to the job in hand. investments; and finally renewable energy
Our 18th anniversary in Kuala Lumpur development across Asean.

A special thanks on behalf of the In-House Community™ to all our speakers, which included:
2019
“The KL In-House Congress always exceeds my expectations”
– Kuala Lumpur Congress delegate
KUALA LUMPUR
Eric Chin Suhaida Mahpot Deepak Pillai Nasha Amin Fara Mohammad
Principal CEO, Head office, South Head of the Technology, Director, Regional Head Legal Director
Alpha Creates & East Asia Media and of Islamic Legal, Group Clyde & Co
Founding Board Amanie Advisors (a Telecommunications Islamic Banking
ASEAN LegalTech Shariah consultancy firm) (TMT) practice, CIMB
Christopher & Lee Ong

William D. Greenlee, Glynn Cooper Pamela Kiesselbach Felix Sy Ahlan Nasri Nasir
Jr. Partner Senior Registered Foreign Managing Partner Partner
Partner Herbert Smith Freehills Lawyer Insights Philippines Legal Kadir Andri & Partners
DFDL Herbert Smith Freehills Advisors (a member of
ZICO Law)

Julian Mahmud Dalvin Kaur Fadjar W. Kandar Yen Lee Sim Shaikh Abdul Saleem
Hashim Group Head Legal - Co-Executive Partner Senior Legal Counsel Managing Partner
Founding Partner Global Banking Roosdiono & Partners (a Schneider Electric Shaikh David & Co (SDC)
Regional Head of Legal
Kadir Andri & Partners Maybank Kim Eng & member of ZICO Law)
Maybank Investment
Bank Berhad

Izhar Ismail Cassandra Lim Cheryl Cairns Elias Moubarak Tom Reynolds
Senior General Manager Associate Partner Partner Partner
(Legal Services), General Trowers & Hamlins LLP Trowers & Hamlins LLP Trowers & Hamlins LLP Trowers & Hamlins LLP
Counsel
Tenaga Nasional Berhad
(TNB)

Wong Kee Hooi Hanim Hamzah Geraldine Oh Kevin Hawkins Patrick Dransfield
Partner Regional Managing Partner Co-Executive Partner Publishing Director
Zaid Ibrahim & Co (a Partner ZICO Law Myanmar ZICO Law Vietnam Asian-mena Counsel
member of ZICO Law) ZICO Law and Co-Director,
In-House Community

Volume 16 Issue 8, 2019 17


THE BRIEFING

MOVES

The latest senior legal appointments around Asia and the Middle East

HONG KONG
K&L Gates has added Guiping Lu as a involving open offers and schemes of arrangements across sectors. He
corporate/capital markets partner in its has also worked on delisting offers. Maggon’s expertise includes advising
Hong Kong office. Joining from the Hong on complex corporate governance issues in listed entities, control deals
Kong office of Beijing-based Haiwen & (including in distress situations), secondary exits and minority stake acqui-
Partners, Lu focuses his practice on equity sitions. He joins from AZB & Partners. He was earlier at Cyril Amarchand
and debt capital market deals and cross- Mangaldas, where he was part of the public M&A team.
border M&As, in addition to advising clients
on private equity, pre-IPO, venture capital
Guiping Lu THAILAND
financing and various US securities law
matters. Kudun and Partners has strengthened
its international practice with the appoint-
King & Wood Mallesons has added ment of Troy Schooneman as partner and
Katherine Ke in its banking and finance head of its international practice group.
practice in Hong Kong. She joins from With a career spanning more than 25
Clifford Chance and has over 15 years years in Asia, Schooneman has extensive
of experience advising Chinese and mul- experience in advising a broad spectrum
tinational clients on cross-border financ- of Thai and international public and private
Troy Schooneman
ing transactions. Native in Mandarin and corporations, private equity funds, financial
fluent in English, Ke represents lead arrang- institutions and government agencies on domestic and cross-border
ers, lenders, sponsors and corporates in a
Katherine Ke M&A, private equity investments, joint ventures, project and corporate
range of Chinese inbound and outbound transactions, including general financings, real estate developments and general corporate matters. He
syndicated loans, project finance, structured finance, trade finance and was previously a partner and head of the international practice group of
receivables finance. She also has a particular focus in asset finance and the Weerawong, Chinnavat & Partners (formerly White & Case Thailand),
aviation sector. focusing on the investment activities of Australian, European and US cor-
porations in the Asia-Pacific region, as well as on outbound transactions
for Thai clients.
INDIA
HSA Advocates has added Vatsal Gaur
as an associate partner, operating out of UAE
the firm’s Delhi office. In the process, Gaur Charles Russell Speechlys has hired cor-
merges his independent practice with the porate partner William Reichert in Dubai.
firm. With over eight years of experience He brings more than 20 years of cross-
in corporate commercial and M&A trans- border transactional experience including
actions, Gaur specialises in PE investment M&A, joint ventures and private equity.
transactions, having acted for diverse PE He joins the firm from K&L Gates’s Dubai
Vatsal Gaur
funds, VC and Angel investors across the office, where he served as head of the cor-
entire spectrum of the investment and divestment cycle. He assists clients porate and commercial practice. Reichert
in transaction structuring, contract negotiations and drafting, advising on advises clients on a variety of corporate
William Reichert
applicable legal and regulatory frameworks, corporate and commercial matters and deals, from seed series investments for startups, to complex,
issues and transaction management. Gaur was running his independent multi-billion dollar matters across numerous jurisdictions. His diverse
practice for over two years, prior to which client base includes a particular focus on energy, real estate, healthcare,
he had worked with Lakshmikumaran & retail and technology. Prior to moving to the Middle East region four years
Sridharan, Khaitan & Co and JSA. ago, he was based for 10 years in Moscow.

Trilegal has added Harsh Maggon as


partner in the corporate practice in the
firm’s Mumbai office. He specialises in
public M&A and private equity transactions,
and has advised on multiple takeovers
Harsh Maggon

18 www.inhousecommunity.com
DEAL OF THE MONTH

Asian-mena Counsel Deal of the Month


Hong Kong’s first non-government
listed bonds
A gricultural Development Bank of
China, one of China’s three policy
banks, has become the first non-gov-
HKEX’s fixed-income market.
“This is an exciting development for
Hong Kong’s markets,” said HKEX chief
munity, and to the further development of
our fixed-income markets.”
Li added that the exchange will con-
ernment issuer of listed bonds in Hong executive Charles Li. “This provides a tinue to explore greater market access
Kong. It sold the notes to both retail and new type of investment opportunity for with the mainland, including the trading of
institutional investors through the stock retail investors while allowing Agricultural listed bonds and derivatives.
exchange’s Central Clearing and Settle- Development Bank of China to diversify Clifford Chance advised the syn-
ment System. its financing base and increase its market dicate of banks that included Bank of
The Regulation S deal comprised a visibility. China, Bank of China (Hong Kong), Stan-
Rmb2 billion (US$289m) tranche that was “We look forward to warmly welcom- dard Chartered Bank (Hong Kong), Bank
offered to both retail and institutional ing more issuers interested in tapping into of Communications Hong Kong Branch,
investors with a 3.08 percent coupon due Hong Kong’s vibrant retail investor com- China Construction Bank (Asia), Industrial
2020, as well as a Rmb1 billion and Commercial Bank of China
institutional-only tranche with a (Asia), Agricultural Bank of China
3.23 percent coupon bonds due Hong Kong Branch, BOCOM
2022. International Securities, Shanghai
It is the first bond issuance Pudong Development Bank Hong
to be open for subscription to Kong Branch, The Hongkong
both retail investors through the and Shanghai Banking Corpora-
listed market and to professional tion, Citigroup Global Markets,
investors in the over-the-counter Mizuho Securities Asia, and KGI
market, following Hong Kong Asia.
Monetary Authority’s Exchange Partner David Tsai, sup-
Fund Bills. ported by partners Connie
The issue is the latest step in Heng and Mark Chan, led the
the continuing development of firm’s team in the transaction.

Other recent transactions from around the region:


Baker McKenzie has advised MetLife on the sale of its Hong counsel to Carrefour Nederland on the proposed sale of its 80
Kong life insurance business to FWD Management Holdings, a percent equity interest in Carrefour China to Chinese electronics
member of the FWD Group. Partner and head of Asia Pacific insur- and e-commerce retailer Suning.com. The transaction values Car-
ance-Hong Kong Martin Tam led the firm’s team in the transaction, refour China at an enterprise value of €1.4 billion (US$1.57b). Car-
which is subject to regulatory approvals. refour will retain a 20 percent stake in the business. Partner Emma
Shearman & Sterling has advised subsidiaries of Joyvio Davies, supported by partner Gregory Crookes, led the firm’s
Group on financings to support its US$880 million tender offer team in the transaction.
for all of the shares of Australis Seafoods, a leading Chilean salmon Rajah & Tann Singapore, a member firm of Rajah & Tann
producer. The transaction is one of the largest acquisitions in Chile’s Asia, has acted for Swiss Reinsurance America on the issuance
aquaculture industry, and provides Joyvio with a major presence in of the US$100 million Series 2019-1 Class A principal at-risk variable
the South American seafood market. Kenneth Ching led the firm’s rate notes by First Coast Re II, with Swiss Reinsurance America as
team in the transaction. the ceding reinsurer, and Security First Insurance as the reinsured.
White & Case has advised the export credit agencies and a This is the first Rule 144A catastrophe bond transaction in Singapore
large syndicate of international and Taiwanese commercial issued by a special purpose reinsurance vehicle licensed by the MAS
banks on the €2.7 billion (US$3b) project financing of German pursuant to a collateralised reinsurance transformer structure. Part-
developer wpd’s Yunlin offshore wind project in Taiwan. ners Simon Goh, Lee Xin Mei, Vikna Rajah and Cheryl Tan led
Clifford Chance has acted as Hong Kong and Dutch legal the firm’s team in the transaction.

Volume 16 Issue 8, 2019 19


Opportunities of the Month …

Be it a case of wanting to spice things up or break the pattern, every now and then, it's nice to know there's something
else. Whether you do so casually or stringently, take a look below to see what the legal sector can offer you.

Legal Counsel – Family Office General Counsel – Investment Banking


3-5 yrs PQE, Hong Kong 15 yrs PQE, Hong Kong

A reputable family office is looking for a legal counsel with A renowned, reputable and established full service investment
broad corporate experience. Candidates should ideally have bank. It is looking for a general counsel to join the Hong Kong
transactional experience, with a well-known law firm or an office. Reporting into the chief executive, the general counsel
established in-house legal team. This is a great opportunity to will lead a team of 13 overseeing the legal function for Hong
work closely with the business and to be involved in interesting Kong. The general counsel will work closely with business in
deals. Business level Chinese skills are essential. [Ref: AC7949] corporate finance, private equity, capital markets/IPO and
Contact: Chris Chu investment funds teams to ensure all legal and transactional
Tel: (852) 2537 7415 related matters is adherent to the firm’s and regulatory
Email: cchu@lewissanders.com environment. The incumbent will be working closely with other
internal stakeholders, senior management and external counsels.
You will have at least 15 years PQE from HK or Commonwealth
jurisdiction, and a combination of related in house experience
as well as a top tier reputable international law firm. Proficiency
in both English and Mandarin Chinese (written and spoken) is
Legal Counsel, IT/eCommerce
mandatory. Very competitive remuneration package is on offer
8-13 yrs PQE, Hong Kong for the suitable candidate. [Ref: JO-1906-174626]
Contact: Venus Ip
This well-established retail business is seeking a capable lawyer
Tel: (852) 2499 9796 (ext. 30) / M +852 9660 1897
to support its business in Asia. Based in Hong Kong, you will
Email: venusip@puresearch.com
provide legal advice and support on general corporate and
commercial work with a focus on IT matters. Ideally, you are a
Commonwealth-qualified lawyer who has good law firm training
plus 8-13 years’ PQE. A team player with experience in the IT
business plus strong drafting skills is sought. Fluency in English
and Cantonese Chinese language skill is required. [Ref: 14915/ Senior Legal Counsel
AC] 15+ yrs PQE, Hong Kong
Contact: Sherry Xu
Tel: (86) 21 2206-1200 This growing US listed company seeks a senior lawyer with
Email: sherryxu@hughes-castell.com.hk strong experience on legal compliance and corporate governance
matters. You will advise on company’s regional business,
regulatory, legal risks, AML and other commercial legal issues
related to their day-to-day businesses. Experience working in a
U.S. listed company and/or common law qualification required.
[Ref: IHC 17657]
Contact: Georgeanna Mok
Tel: 852 2920 9101
Email: g.mok@alsrecruit.com

20 www.inhousecommunity.com
Now in its 21st year, the In-House
Community Congress series is the region’s
original and largest circuit of corporate
counsel events, bringing together over
3,000 corporate in-house counsel and
compliance professionals along the The annual gatherings
of the In-House Community
New Silk Road each and every year.
along the New Silk Road

n Abu Dhabi
n Bangkok
n Beijing
n Dubai
n Ho Chi Minh City

Do you have a regular dialogue


n Hong Kong
n Jakarta
n Johannesburg
n Kuala Lumpur

with your peer In-House Counsel n London


n Manila
n Mumbai

along the New Silk Road?


n Seoul
n Shanghai
n Shenzhen
n Singapore
n Sydney
“In-House Community provides a unique combination of best n Yangon

practice sharing, networking, news and technical updates that


all practitioners need in order to meet the competing
pressures of legal coverage, compliance and commerce.
In-House Community empowers the modern lawyer to work
smarter and become a trusted business partner”

Trevor Faure, Global Adviser, Legal Transformation.


Former General Counsel, Ernst & Young Global,
Tyco International, Dell & Apple EMEA.

Join your colleagues at an


In-House Congress near you
FORUMS FOR THE
For more information email us at: In-House Community
congress@inhousecommunity.com www.inhousecommunity.com
SPOTLIGHT ONUPDATES
JURISDICTION CIA
Collections, Investigation & Audit

Erick Gunawan
Head of Forensics, Law In Order
erick.gunawan@lawinorder.com

Forensic investigations, the role of corporate


counsel and the rise of information governance
Head of Forensics – Erick Gunawan, discusses the Role of Corporate Counsel in the context
of litigation or investigation and the increasing importance of information governance.

The Role of Corporate Counsel data sources such as hard documents or The Role of Information
Corporate clients are increasingly aware emails or just old records. There may be Governance
of how new technologies can ease an online portal for customer complaints. Applying the EDRM workflow, the team
litigation costs, including tools that Everything relevant must be collected. starts with data governance and then
minimise document review timeframes. For large companies like banks, there are moves to review or investigation. The
Instead of junior lawyers racking up numerous data repositories in which early data volume decreases during the process
billable hours manually reviewing analysis needs to be conducted. as more relevant data is found.
documents, corporate clients are asking Corporate counsel will need to drive the If engaging law firms, they need to
law firms for innovation around document identification of relevant data by sending be briefed of all potentially relevant
reviews. Consequently, law firms are out questionnaires or interviewing data, having then performed an ECA to
taking on risk, developing new tools and employees or business units. Data decide on litigation or settlement.
hiring innovation managers to incorporate preservation notices may need to be Australia is starting to embrace
technology for these processes. issued to ensure all potentially relevant governance. It is really about setting up
Corporate counsels are increasingly data is not destroyed/purged. This processes to ensure the organisation
focused on legal operations rather than identification phase is often the most knows where everything is and the data
providing legal advice. They are working critical to ensure counsel is not over governance protocols are enforced. Many
with other business units on compliance collecting unnecessary data and that organisations now have an information
and sometimes project manage the whole potentially critical evidence isn’t missed. governance officer either in their IT, legal
data collection and document review. How does an organisaton prepare for or risk team. More corporations are
Due to cost, corporate counsels now impending litigation or just get their investing to ensure their data is
have greater scope and responsibility, organisational health in order? compliant with local law and is preserved
and need to be agile in their legal advice One step is data scope mapping. For or destroyed accordingly.
as well as understanding legal operations example, if the financial systems changed The quality of information
and identifying risk and threat. in 2015, then it is important to know governance protocols significantly impact
where the back-ups of the old system are on the time and cost associated with
When Litigation or Investigation stored and if there were any issues document review. Ultimately, information
Hits during the migration which might have governance is an investment with long
Most corporate counsels work reactively, caused data loss or corruption. term benefits.
but increasingly, are becoming more Early Case Assessment (ECA) is
preventative. For example, in eDiscovery important for discovery and litigation,
where email servers may have held three particularly with large data sets, to Law In Order
3 Phillip Street, #17-01, Royal Group
months of data, they are now backing up prescreen the data for relevance and see
Building, Singapore 048693
one year of emails and setting up a how the team will leverage analytics and Tel: (65) 6714 6655
process to know where all the data sits. technology. Email: singapore@lawinorder.com
So when litigation hits, corporate For large reviews, it’s possible to Web: www.lawinorder.com.sg
counsels can utilise this information to scale up quickly with managed document
Unit 901, 9/F, Beautiful Group Tower,
identify and collect all potentially review teams using the Electronic 74-77 Connaught Road Central,
relevant data fast. Discovery Reference (EDRM) model. The Sheung Wan, Hong Kong
For a Royal Commission, when the EDRM model sets out the steps for a Tel: (852) 5803 0000
Email: hongkong@lawinorder.com
notice comes out, timelines are strict for litigation or investigation to present
Web: www.lawinorder.com.hk
producing documents. There are many relevant data to the court.

22 www.inhousecommunity.com
21
Bringing the In-House Community
together along the New Silk Road

“The future of legal


services lies very much
in the hands of in-
house counsel. To bring
change, it is imperative
that they form
themselves, globally,
into professional
networks. The In-House
Community provides
one such forum”
Professor Richard
Susskind, OBE

Asian-mena Counsel
and the Weekly Briefing
Sent to over 33,000 individuals
including 20,000+ in-house
practitioners

Plus:
FIND AN ARBITRATOR ...
Search now for an Arbitrator, Mediator or Expert Witness
as per your requirements - online.
www.InHouseCommunity.com/FindAnArbitrator/

Adv. Ali Al David Foster Hiroo Advani


Zarooni Jurisdiction: London Jurisdiction: India
Phone: (44) 0 20 7558 4819 Phone: (91) 22 22818380 /
Jurisdiction: United Arab
Email: dfoster@omm.com 81 / 82,
Emirates
(91) 22021347,
Title: Partner
(91) 22041950
Phone: (971) 4 354 4444
Mobile: (91) 98200 77950
Email: alisaeedi@horizlaw.ae
David R. Email: hiroo.advani@advaniandco.com

Haigh, QC
Antonino de Jurisdiction: Canada

Fina Phone: 403-260-0135 Hoil Yoon


Email: drh@bdplaw.com Jurisdiction: South Korea
Jurisdiction: France
Phone: (82) 2 6003-7501
Title: Director
Email: yoon.hoil@yoonyang.
Phone: (61) 3 95550500
com
Fax: (61) 3 95550588
Email: aa.defina@definaconsultants.
Denis Brock
com Jurisdiction: Hong Kong
Phone: (852) 3512 2388
Email: dbrock@omm.com
Ing Loong
Yang
Caroline Jurisdiction: Hong Kong
Duclercq Phone (852) 2912 2790

Jurisdiction: France Dr Christian Email: ingloong.yang@lw.com

Phone: 00 33 1 79 97 93 00 W. Konrad
Email: cduclercq@altanalaw.com
Jurisdiction: Austria
Phone: 00 431 512 95 00 Jaya Prakash
Email: c.konrad@konrad-partners.com Jurisdiction: Singapore
Christopher Phone: (65) 6435 0181

To Email: kjp@kjayaprakash.sg

Jurisdiction: Hong Kong


Phone: (852) 2866 8233
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Email: chriswto@gmail.com Respondek Lee Fook
Jurisdiction: Singapore
Phone: (65) 9751 0757
Choon
Jurisdiction: Singapore
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Email: respondek@rflegal.com
Email: captainlee@

Langrigge integralmarine.com

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Phone: 44 (0)1242 821246 Dr. Fan Yang LIU Chi
44 (0)1242 821113 Jurisdiction: China Jurisdiction: China,
Mobile: 44 (0)7798 503507 Phone: (852) 3443 1186 New York
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Volume 16 Issue 8, 2019 25


DISPUTE RESOLUTION

UAE – Dynamism
in business and
dispute resolution
in the Gulf
With a variety of new legislation in the emirates, Louise
Bowmaker of Horizons & Co looks at some of the most
significant recent and upcoming changes.

T
he UAE is nothing if not dynamic and A recent update came in the form of a
its legal jurisdictions are no Cabinet official press release on July 2, 2019; a
exception, particularly the Dubai Resolution has been passed approving the
International Financial Centre (DIFC) “positive list” of 13 sectors which are now
and Abu Dhabi Global Market (ADGM). This eligible for 100 percent foreign ownership. A
article gives a roadmap of changes afoot and “negative list” of sectors which will remain
highlights key recent legal developments. subject to the majority local ownership
requirement was published last year (oil and
UAE – Foreign direct investment gas, banking, utilities, road and air transport,
The requirement for majority Emirati ownership telecoms and medical retail). The positive list
of businesses is a well-known impediment to is:
foreigners looking to do business in the UAE. - Renewable energy
Happily for those concerned, in September 2017 - Space
the UAE Cabinet announced the Foreign Direct - Agriculture
Investment Law (Federal Decree Law No. 18) - Manufacturing
which paved the way towards a relaxation of - Transport and storage
the local ownership requirements in certain - Hospitality and food services
specified sectors and activities. - Information and communications services
- Professional, scientific and technical
- Administrative and support services
“In its latest legislative output the DIFC has - Healthcare
shown its willingness to look beyond England & - Arts and entertainment
- Construction
Wales for inspiration” - Education

26 www.inhousecommunity.com
UAE – Dynamism in business and dispute resolution in the Gulf
By Louise Bowmaker, Horizons & Co

The relevant activities within these sectors


remain to be specified. For existing companies,
foreign owners looking to secure 100 percent
ownership for the first time may wish to
consider taking legal advice as to how they
might deal with the problem that they are
presently minority owners.

UAE – Tax and economic substance


reporting requirements
On April 30, 2019, Cabinet Resolutions No. 31
and No. 32 of 2019 introduced certain reporting
requirements for UAE businesses. These
resolutions form part of international efforts to
improve tax transparency.
Resolution No. 31 requires UAE businesses
carrying on specific licensed activities to meet
economic substance criteria and make an annual
report to that effect. Key features include:
• The Resolution applies to UAE businesses
wherever they may be based, be it onshore
or a free zone including the DIFC and the
ADGM
• All UAE companies going forward must file an
annual notice stating whether or not they
carry on the specific activities in question. A
Louise Bowmaker
company failing to do so will face fines
• The relevant activities are: banking;
insurance; investment fund management; DIFC – Insolvency Law, Law No. 1 of
finance leasing; headquarters; shipping; 2019
holding company; intellectual property; While Gulf law makers generally are not known
distribution and service centres for their interest in insolvency legislation, the
• Entities undertaking the relevant activities DIFC has continued to take the lead with Law
must meet the economic substance criteria No. 1 of 2019, effective from June 13, 2019.
• The criteria are: core income generated from The Insolvency Law repeals and replaces the
activities in the UAE; management previous insolvency law, Law No 3 of 2009. It
undertaken in the UAE; an appropriate applies to companies operating in the DIFC.
number of full-time employees within the The DIFC has made its name as a common
UAE; adequate operating expenditure; and law jurisdiction largely based upon the laws of
adequate assets held in the UAE. England and Wales, and is a well-liked and well-
established feature of the UAE legal market. In
Resolution No. 32 of 2019 requires certain its latest legislative output, however, the DIFC
members of multinational groups to file detailed has shown its willingness to look beyond
annual reports. Those affected are multinational England & Wales for inspiration and in
group parents and affiliates where the parent of particular across the Atlantic to the US.
the group is not required to file a tax report in
its jurisdiction of tax residency. Only those Rehabilitation
groups with revenues of AED 3.15 billion or more Part 3 of the Insolvency Law introduces
per annum are affected. “Rehabilitation Plans” which may make for
The reporting requirements are relatively familiar reading for US practitioners. In addition
onerous and include financial reporting to Company Voluntary Arrangements and
extending to profit and loss, income tax paid, Receiverships where appropriate and/or
declared capital, assets and number of desirable, struggling companies now have a new
employees. debtor-in-possession option open to them:

Volume 16 Issue 8, 2019 27


DISPUTE RESOLUTION

• Where directors wish to propose a a creditor or shareholder applies in writing no


Rehabilitation Plan, they may apply to the less than 10 days prior to the post plan hearing.
Court and obtain a 120-day moratorium
(article 16). They must show only that: (i) the Administration
company is or is likely to become unable to Part 4 of the Insolvency Law makes provision
pay its debts; and (ii) there is a reasonable for administration, and it should be read
likelihood of a successful Rehabilitation Plan carefully by those tempted to assume this is
being reached between the Company and its akin to administration under the laws of
creditors and shareholders (article 13) England & Wales. There are two key points of
• A Rehabilitation Nominee will be appointed distinction:
but the directors will continue to manage the • In the DIFC, administrators of a company can
company’s affairs, save in cases of fraud, only be appointed after a company has filed a
mismanagement etc. Rehabilitation Plan Notification at court.
• Creditors may apply to court for relief from Creditors may apply to appoint (article 32) or
the moratorium (article 16) or to terminate it the court may appoint of its own motion
“upon cause shown, including bad faith” (article 22(2)) in either case where there is
(article 23(1)) evidence of misconduct on the part of the
directors
After a Rehabilitation Plan proposal has • The purposes of administration in the DIFC
been put forward creditors and shareholders are limited to seeking to approve Company
will vote. The court must then then sanction Voluntary Arrangements or Rehabilitation
the Plan at a post plan hearing (article 27) if Plans, or undertaking investigations
certain criteria are met, including: (transactions at undervalues, false
• The Plan is not unfairly prejudicial to each representations to creditors, preferences and
class of creditors and shareholders and the the like) (article 32(8)).
company’s general body of creditors taken as
a whole Cross-border insolvency
• The Plan has been approved by each class of Those dealing with foreign and international
creditors and shareholders (>75 percent in companies will be pleased to see the adoption
value of those voting) or, if a class of in Part 7 of the Insolvency Law of the United
interests is impaired under the Plan, at least Nations Commission on International Trade Law
one impaired class of creditors has voted to (UNCITRAL) Model Law (with modifications),
accept (this echoes the US Bankruptcy Code, ushering in a welcome practice of cooperation
section 1129) in cross-border insolvency proceedings.
• Any class which has voted against the Plan Part 7 also makes express provision that the
will receive at least as much value as such DIFC court shall assist foreign courts in the
class would receive in a winding up gathering and remitting of assets maintained
• Any holder of a claim that is junior to the within the DIFC in relation to insolvency
claims of any dissenting class will not receive proceedings in that foreign jurisdiction, upon
any distributions pursuant to the request (article 117(1)). Meanwhile, article 118
Rehabilitation Plan until dissenting creditors provides that a foreign company in the DIFC
have been paid in full. may be wound up in accordance with the
Insolvency Law notwithstanding the company in
The court may order such relief as it thinks question may be the subject of insolvency
just and appropriate at the post plan hearing if proceedings elsewhere. Perhaps surprisingly, a
foreign company can even be wound up if it has
been dissolved (and therefore no longer exists)
“Part 4 of the Insolvency Law makes provision in its place of incorporation.
for administration, and it should be read
ADGM courts – Third-party funding
carefully by those tempted to assume this is Litigation (and arbitration) funding is hot topic
akin to administration under the laws of across the Gulf and the ADGM has joined the
trend with the publication of its Litigation
England & Wales” Funding Rules published on April 16, 2019. The

28 www.inhousecommunity.com
UAE – Dynamism in business and dispute resolution in the Gulf
By Louise Bowmaker, Horizons & Co

DIFC made similar express provision for third


party funding in 2017, with Practice Direction “Although there has never been an express
No. 2 of 2017 on Third Party Funding in the
DIFC Courts (Practice Direction). prohibition of litigation funding in UAE law, it
Key aspects of the ADGM Litigation Funding is also true to say it has never been expressly
Rules are as follows:
• A funder’s principal business must be the permissible”
funding of proceedings to which it is not a
party. There are also capital requirements; a
funder must have qualifying assets of not less things, the Consultation Paper introduces data
than US $5m protection officers, principles of accountability
• A funder must take reasonable steps to and data breach notification, and introduces
ensure that the litigant has had independent new sanctions and enforcement.
legal advice in relation to the litigation
funding agreement (“LFA”) Soon to be effective – DIFC
• LFAs must be in writing and set out the scope Employment Law
and amount of funding, timing of payment On August 28, 2019, DIFC Employment Law, Law
and steps the funder intends to take to No. 2 of 2019 will come into effect. It will
recover payment repeal and replace the previous DIFC
• The LFA must state whether the funder is Employment Law. Highlights include:
liable to pay any adverse costs or any adverse • A limitation period for employment claims
costs insurance premiums will be introduced for the first time — six
• The amount to be paid by the litigant must months
comprise any successful costs order in the • For the first time provision will be made for
proceedings and an amount calculated with paternity leave (five working days of paid
reference to the funder’s expenditure. leave plus time off to attend ante-natal
classes)
This development follows a welcome trend • Whereas at present employees are allowed a
albeit the capital requirements are likely to be full 60 days paid sick leave a year, this will be
a prohibitively high bar for many”. Litigation amended to 10 days fully paid, 20 days at
funders have historically been cautious of the half pay and the remaining 30 days unpaid
UAE market, largely due to uncertainty as to • Pregnancy, maternity and age will be added
whether such funding would be permissible to the list of protected characteristics and
under UAE law. Although there has never been provision is made for remedies in cases of
an express prohibition of litigation funding in discrimination
UAE law, it is also true to say it has never been • Part-time workers are recognised for the first
expressly permissible. ADGM now joins the DIFC time with the result that their statutory
in giving an unequivocal green light to litigation benefits will be pro-rated.
funders.
More to come
Consultation paper – Data protection in It is a genuine pleasure to observe and participate
DIFC in the ever-evolving UAE legal landscape. As we
As is the trend in many countries, the DIFC is hope is apparent from this update, the speed
looking to bring its data protection laws up to and, crucially, quality of change in the UAE makes
date. Those operating in the DIFC may wish to it an exciting place to be.
cast their eye over Consultation Paper No. 6 of
2019 – Data Protection Law. The Consultation
Paper was published in June and those wishing
to participate in the public consultation period
have until August 18, 2019 to do so.
The Consultation Paper aims to bring DIFC louise.bowmaker@horizlaw.ae
standards in line with international (971) 4 354 4444
developments, including the EU General Data www.horizlaw.ae
Protection Regulation (GDPR). Among other

Volume 16 Issue 8, 2019 29


DISPUTE RESOLUTION

Internet
courts in China
By Yun Zhao, The University of Hong Kong

I
n view of the rapid development of administrative cases of the first instance
e-commerce and the skyrocketing number of originally under the jurisdiction of the Basic
online disputes, China decided on June 26, People’s Courts in the city of Hangzhou.
2017 to set up an internet court, with the The litigation process shall be operated online,
aim to take advantages of high technologies to from initiating lawsuits until the release of
facilitate the litigation process. The City of judgments. The disputing parties may bring the
Hangzhou, the provincial capital of Zhejiang suit to the internet court by registering with their
Yun Zhao
Province, being home to many high-tech phone numbers. The online system will have access
companies, in particular Alibaba, is naturally the to the user’s identity, online transaction records
ideal location for the first internet court in and other relevant personal data. Once the case is
China. Hangzhou Internet Court was formally accepted, the system will notify the other party
established on August 18, 2017, with the IT who may send in a response in the online platform.
support from Gongdao Network Technology. The The hearing will be conducted online through a
litigation platform is registered with the domain video-chat system. It is noted that the trial process
name http://www.netcourt.gov.cn. is similar to the video-chat function on China’s
According to the notice issued by the social networking app WeChat. The application of
Supreme People’s Court on The Proposal of the online facilities led to significant reduction of the
Establishment of Hangzhou Internet Court, time and costs for the court trial — the disputing
Hangzhou Internet Court has centralised parties can also choose to pay relevant fees
jurisdiction over the internet-involved civil and through e-wallets including Alipay.

30 www.inhousecommunity.com
Internet courts in China
By Yun Zhao, The University of Hong Kong

Electronic evidence and electronic signatures are After the establishment of the other two internet
admitted in the internet court. It is noted that courts in China in 2018, the Supreme People’s Court
blockchain technology has already been used in the unified rules on court jurisdiction by issuing the
trial process. The Supreme People’s Court released a Provisions on Several Issues Concerning the Trial of
judicial interpretation by providing that the Cases by Internet Courts. Apart from confirming the
internet court can rely on evidence provided by the status of the internet courts at the level of basic
parties that can be authenticated by electronic people’s courts, this document lists 11 types of cases
signatures, time stamps, hash value verification, under the internet courts’ jurisdiction, ie:
blockchain and other tamper-proof verification (1) Online shopping contracts through e-commerce
methods. platforms;
The same as in other traditional litigation (2) Network service contracts which are both
processes, mediation is also included in this online signed and performed on the internet;
process. The Trial Procedure of the Litigation of (3) Financial loan contracts or small loan contracts
Hangzhou Internet Court provides that: “The which are both signed and performed on the
Litigation Platform sets up the process of mediation internet;
before litigation….The mediation usually lasts 15 (4) The ownership of the copyrights or
calendar days, and can be appropriately postponed neighbouring rights of the works published on
with the consent of both parties….If two parties the internet for the first time;
cannot reach a settlement in the mediation period, (5) Infringements upon the copyrights or
the case will enter into the stage of the case-filing neighbouring rights of the works published or
for approval and will be submitted to the case-filing disseminated online through the internet;
judge for review….The parties, who apply for (6) Internet domain name ownership, infringements
consultation, evaluation, mediation and arbitration and contracts;
instead of litigation, can input the case into the (7) Infringements upon others’ personal rights,
Online Diversified Dispute Resolution Platform, and property rights and other civil rights and
then resolve the dispute online.” A pre-trial interests on the internet;
mediation will be arranged following the file of a (8) Product liability disputes by the products
lawsuit; mediation can be conducted through the purchased through e-commerce platforms due
internet, telephone or videoconference. to product defects;
The initiative to set up the first internet court (9) Internet public interest litigation cases filed by
was a great success. Within one year from its procuratorial organs;
establishment (from August 2017 to August 2018), (10) Administrative disputes arising from the
the Court accepted 12,103 cases and concluded administrative actions taken by administrative
10,626 cases; more than 88 percent of cases were organs, such as Internet information service
filed online and all cases were heard online with the management, internet commodity trading, and
parties’ agreement; more importantly, the efficiency related service management;
in the litigation process is notable, with average (11) Other internet civil and administrative cases
time of online hearings being 28 minutes and the jurisdiction over which is designated by the
average number of days to conclude a case being 41 People’s courts at higher levels.
days. The Supreme People’s Court further released
the first batch of 10 typical internet-related cases China leads Internet litigation around the world
on August 16, 2018 to unify relevant standards and by setting up three Internet Courts. The successful
provide useful guidance for future internet-related implementation proves that the wider use of high
cases. technologies in the litigation process shall improve
Modelling after this first internet court, two the litigation efficiency and reduce costs, which
other internet courts were established in Beijing on serves as important case studies for extending the
September 9, 2018 and Guangzhou on September 28, model of Internet Courts to other parts of China, and
2018 respectively. Similar to the Hangzhou Internet beyond.
Court, these two courts serve as the level of basic
courts within the jurisdiction of their own cities. The
YUN ZHAO
appeal will be dealt with by the intermediate courts
Henry Cheng Professor in International Law
or intellectual property courts (for online copyright
Head of Department of Law
ownership and infringement cases and domain name
The University of Hong Kong
dispute cases) within their respective jurisdictions.

Volume 16 Issue 8, 2019 31


DISPUTE RESOLUTION

SCIA’s innovation:
Optional appellate
arbitration in China
A substantive appellate mechanism constitutes a
beneficial complement to the finality of single-instance
arbitration.

By Shenzhen Court of International Arbitration

32 www.inhousecommunity.com
SCIA’s innovation: Optional appellate arbitration in China
By Shenzhen Court of International Arbitration

T
he high efficiency brought by the finality choose arbitration for dispute resolution — that is,
of arbitral awards in one-instance once an erroneous award is made, there is no
procedures is one of the most important chance to obtain remedies. Based on domestic
considerations when choosing arbitration and overseas legislation, foreign experience and
to settle disputes. Article 9 of the Arbitration Law pursuant to its arbitration rules, Shenzhen Court
of the People’s Republic of China (hereinafter of International Arbitration (SCIA) has responded
referred to as China’s Arbitration Law) provides to these concerns by taking the lead in creating
that: “An arbitral award shall be final. If a party an optional appellate arbitration mechanism
petitions for arbitration to an arbitration within the existing legal framework of China,
commission or institutes an action in a people’s which constitutes a helpful complement to the
court regarding a dispute for which an arbitral regime of finality of single-instance arbitration in
award has been rendered, the arbitration China.
commission or the people’s court shall not accept
the case.” This provision on the principle of I. EXPLORING THE NECESSITY AND
“finality of arbitral awards in one-instance FEASIBILITY OF AN OPTIONAL APPELLATE
procedures” (“一裁終局”, hereinafter referred to ARBITRATION MECHANISM
as the “finality of single-instance arbitration”) (I) Finality of single-instance arbitration is
guarantees the efficiency and res judicata effect not an absolute advantage of
of arbitration as a method of dispute resolution. international commercial arbitration
However, as China’s international trade and According to a survey initiated by Queen
outbound investment become increasingly Mary University of London since 2006, a
frequent and sizable, some domestic and foreign certain proportion of respondents say that
market players have started to worry about the the lack of an appellate mechanism is a
finality of single-instance arbitration when they flaw of the arbitration system and one of

Volume 16 Issue 8, 2019 33


DISPUTE RESOLUTION

the factors that make them reluctant to award might not be corrected”. Or as JK
choose arbitration. According to its 2018 Thomas said at the Seventh Annual
arbitration survey report, only 16 percent Transnational Commercial Arbitration
of the respondents considered finality as Workshop in 1996: “Speed and finality can
a valuable feature of international be the advantage of arbitration only when
arbitration. you win a dispute. If arbitrators make a
material mistake, speed and finality will
not be an advantage anymore.”
“The advantage of the finality of single-instance The growth of international trade means
arbitration lies in simplified and accelerated that disputes often involve a huge amount
of money. Understandably, the parties to
procedures as well as reduced costs” such cases have a much higher
requirement for substantive justice than
The advantage of the finality of single- for efficiency, and have expressed
instance arbitration lies in simplified and concerns about the potentially significant
accelerated procedures as well as risk caused by the finality of single-
reduced costs, which is consistent with instance arbitration and the lack of
the pursuit of profit and efficiency in appealability, and that errors in arbitral
commercial activities. However, Gary awards will be difficult to be corrected.
Born indicated in his book International As in most of developed countries and
Commercial Arbitration that “the non- regions, judicial review of arbitral awards
appealability of an arbitral award generally involves no substantive issues in
excludes appellate review and thus China. Therefore, the Chinese judicial
significantly reduces litigation costs and review mechanism is unable to address
avoids prolonged proceedings; on the the parties’ concerns about substantive
other hand, this also means that a wrong errors in arbitration.

34 www.inhousecommunity.com
SCIA’s innovation: Optional appellate arbitration in China
By Shenzhen Court of International Arbitration

(II) Finality of single-instance arbitration is finality of single-instance arbitration is


not an absolute regime or principle in recognised under China’s Arbitration Law and
commercial arbitration Chinese courts’ human resources are limited in
A general analysis of the legislation on the face of a large number of cases, it is
arbitration in many jurisdictions shows unrealistic to explore an external appeal
that the finality of single-instance mechanism under which appeal petitions are
arbitration is not absolute. For instance, filed to courts. Since the Chinese courts have
Article 58 of the UK Arbitration Act 1996 supported arbitration and arbitrators are
provides that: “Unless otherwise agreed by usually experts, it is feasible to attempt to
the parties, an award made by the establish an internal appeal mechanism.
tribunal pursuant to an arbitration
agreement is final…. This does not affect
the right of a person to challenge the “Arbitration stems from the market and should
award by any available arbitral process of
appeal or review or in accordance with the
serve the market and meet the demand of
provisions of this Part.” Article 1050 of the market players”
Dutch Code of Civil Procedure 1986
provides that: “An appeal from the
arbitral award to a second arbitral tribunal (I) Key modes of internal appeal in foreign
is possible only if the parties have agreed jurisdictions
thereto.” Similar provisions can also be 1. Re-arbitration after annulment
found in the Hong Kong Arbitration This mode is adopted by the
Ordinance and Decree-Law n. 29/96/M of International Centre for Settlement of
Macau SAR. In Singapore and France, an Investment Disputes. Either party may
arbitral award is also appealable in petition for annulment of an award
practice. The above arbitration-related which is deemed to be under any of the
legislation and practices indicate that circumstances specified in Article 52 of
finality of single-instance arbitration is the Washington Convention. Once such
neither an absolute regime or principle of circumstance is found to exist, the
international commercial arbitration nor a award will be annulled and a new
basic characteristic or inherent nature of arbitral tribunal will be constituted to
international commercial arbitration conduct arbitration.
procedures. 2. Agreed appellate arbitration
This mode is adopted in the arbitration
II. CHINA SHOULD DRAW ON FOREIGN rules of the American Arbitration
EXPERIENCE TO ESTABLISH AN OPTIONAL Association, Spanish Court of Arbitration
APPELLATE ARBITRATION MECHANISM and International Institute for Conflict
Arbitration stems from the market and should Prevention & Resolution, ie, the parties
serve the market and meet the demand of may agree to file an appeal against an
market players. Given that the parties in arbitral award to such arbitration
international commercial arbitration have a institutions.
real desire to leverage the absolute advantage 3. Implied appellate arbitration
of arbitration in neutrality and privacy, and This mode is adopted in the arbitration
avoid risks from finality of single-instance rules of the European Court of
arbitration, China should explore an optional Arbitration, International Arbitration
appellate arbitration mechanism into its Chamber of Paris, Grain and Feed Trade
arbitration system as a useful supplement to Association, Federation of Oils, Seeds
the finality of single-instance arbitration. and Fats Associations, Coffee Trade
At present, there are different modes of Federation and London Rice Brokers
arbitration appeals in the world. By different Association, ie, the parties have the
entities, arbitration appeals can be categorised implied right to file an appeal against
into external appeal (to courts) and internal an arbitral award to such arbitration
appeal (to arbitration institutions or arbitration institutions in accordance with their
tribunals). In view of the facts that only the rules.

Volume 16 Issue 8, 2019 35


DISPUTE RESOLUTION

(II) Innovative practices of SCIA 1. It does not violate China’s Arbitration


Based on the above modes and having Law. The application of the optional
regards to the current state of judicial appellate arbitration procedure is
review of arbitral awards in China, SCIA conditional upon the fact that “it is not
has, in accordance with the relevant prohibited by the laws of the place of
provisions of the laws of China and the arbitration”. In other words, such
New York Convention, pioneered an procedure may not apply unless the
internal optional appellate arbitration arbitral procedure is governed by the
mechanism in China through its laws of the US, the UK, France, Hong
arbitration rules, under which mechanism Kong or other jurisdictions where an
the parties may, as agreed, submit a case appeal within the arbitration process is
for which an arbitral tribunal has permitted or not forbidden. If China’s
rendered an award to SCIA for re-hearing Arbitration Law is the governing law,
and rendering of a final award by a new such procedure is inapplicable.
arbitral tribunal, ie, an appellate 2. It expands specific methods for
tribunal. This is a better solution suitable resolution of disputes through
to arbitration practices in China for the arbitration under the existing legal
following reasons: framework, satisfies the actual demand
of market players for substantive
“The optional appellate arbitration procedure justice and reflects the high-level
flexibility of arbitration.
is a substantive appellate mechanism with 3. It is designed to respect the principle
respect to the original awards established of “party autonomy”.
4. It does not violate the principle of
within the arbitration institution” “finality of arbitral awards”.
The finality of an arbitral award is

36 www.inhousecommunity.com
SCIA’s innovation: Optional appellate arbitration in China
By Shenzhen Court of International Arbitration

opposed to the limited scope of judicial members will be selected from the
review of the arbitral award, ie, the original arbitral tribunal.
scope of judicial review is limited to (V) Upon being rendered by the appellate
jurisdictional, procedural justice and arbitral tribunal, an appellate arbitral
public order issues and does not cover award will be final and binding upon the
substantive issues. The optional parties, in lieu of the original award.
appellate arbitration procedure is a Thus, the abuse of the parties’ right to
substantive appellate mechanism with appeal can be avoided, and both fairness
respect to the original awards and efficiency will be taken into account.
established within the arbitration
institution. Such arrangement gives the
parties the right and chance to obtain “The finality of single-instance arbitration is
a secondary remedy and does not
constitute a breach of or a challenge to
not an absolute principle or advantage of
the finality of arbitral awards. international commercial arbitration”
III. APPLICATION OF SCIA’S OPTIONAL
APPELLATE ARBITRATION PROCEDURE IV. CONCLUSION
(I) Conditions for application of the In summary, the finality of single-instance
procedure arbitration is not an absolute principle or
1. Such procedure is not prohibited by the advantage of international commercial
laws of the place of arbitration arbitration. As an active response to the
applicable to the case; objective demand of market players, SCIA has,
2. There is an agreement under which based on foreign experience, creatively
either party may file an appellate designed a substantive appellate mechanism
arbitration petition; and within the arbitration process under the
3. The case involves an amount in dispute existing legal system and framework, which
of more than RMB 3 million and is not constitutes a beneficial complement to the
subject to the expedited procedure. finality of single-instance arbitration. In this
(II) Requirements for initiation of the way, SCIA has blazed a
procedure realistic trail in
1. There is an arbitration agreement optimising the
between the parties which contains the combination of the
right to petition for appellate advantages of
arbitration; arbitration such as
2. The appellant has petitioned for an neutrality, impartiality,
appeal within 15 days upon receipt of efficiency and wide
the original award; recognition and
3. The appellant needs to submit a enforcement at
written appeal petition which contains international level,
the required information; and broadened the range
4. The appellate arbitration fees are paid of specific solutions to
in advance within the required time settlement of disputes
limit. through arbitration, and
(III) SCIA is the body that accepts an appeal improved arbitration
petition and decides whether to practices in China.
commence and proceed with the
appellate arbitration procedure.
(IV) The appellate arbitral tribunal responsible
for appellate arbitration is composed of
three arbitrators, including one presiding
arbitrator. In order to maximally maintain
the neutrality and impartiality of the www.scia.com.cn
appellate arbitral tribunal, none of its

Volume 16 Issue 8, 2019 37


DISPUTE RESOLUTION

Introducing
Chinese arbitration
to the world
Through open dialogue, BAC is developing the knowledge
and expertise to become a leading arbitration hub among
the international arbitration community.

38 www.inhousecommunity.com
Introducing Chinese arbitration to the world
By Chen Fuyong, Beijing Arbitration Commission

A
s a leading arbitration institution in peers to strengthen exchanges, so that foreign
China, the Beijing Arbitration practitioners can learn more about commercial
Commission / Beijing International arbitration in China, and get more familiar with
Arbitration Center (BAC) has the the Chinese legal environment.
responsibility to facilitate mutual understanding The event included sessions themed around
between Chinese arbitration professionals and international construction mega-projects in
their international counterparts, and makes China, energy and investment in international
every effort to safeguard the rules of arbitration, future trends in international
commercial activities and protect the interests arbitration, IP and entertainment international
of practitioners and parties all over the world. arbitration, and financial dispute resolution.
As part of this mission, the BAC has been
providing insight into China’s arbitration system
through events around the world since 2013, “The increasingly friendly arbitration environment
with summits on commercial dispute resolution
in China has provided a strong guarantee for the
in major international arbitration hubs including
London, Paris, The Hague and Vienna. This enforcement of foreign-related arbitration
year, for the first time, the BAC went to North
awards”
America to host events in New York, San
Francisco and Toronto.
The original and continuing intention of the The closing address was delivered by Nigel
summit series was to promote mutual Blackaby, US partner of Freshfields Bruckhaus
exchange, understanding and trust between Deringer. He mentioned that dispute resolution
Chinese and foreign legal practitioners by has accompanied the development of human
establishing a platform for professional society since ancient times. In ancient China,
dialogue. justice minister Gao Yao asked a goat-shaped
magical animal with a single horn called Xiezhi
New York Summit to indicate the guilty party. In midieval
The 2019 New York Summit on Commercial England, the disputing parties referred to the
Dispute Resolution in China, jointly hosted by speed of eating of chickens they selected to
the BAC, the International Centre for Dispute decide who wins. Both approaches shared the
Resolution of American Arbitration Association similar original idea of arbitration, where the
(AAA-ICDR) and the New York International disputing parties choose to settle their dispute
Arbitration Center (NYIAC), was successfully in a mutually agreed way. This idea has been
held on June 26, 2019. inherited by the basic model of modern
In his opening address, Chen Fuyong, deputy commercial arbitration — parties to the dispute
secretary general of the BAC, expressed select professionals to determine the cases,
heartfelt thanks to the co-hosts and those who and are bound by the results of arbitration.
provided assistance and support to the summit, Blackaby then fully acknowledged the rapid
while Luis Martinez, vice-president of the AAA- development of Chinese arbitration in recent
ICDR and Rekha Rangachari, executive director years and the remarkable achievements of the
of the NYIAC, fully affirmed the significance of BAC on the road to internationalisation. He said
the launch of the annual report by the BAC, that the increasingly friendly arbitration
mentioning that, China has a huge demand for environment has provided a strong guarantee
international arbitration. This, on the one for the enforcement of foreign-related
hand, is due to the steady growth of Chinese arbitration awards. He believed that with the
overseas investment, and on the other hand, implementation of the Belt and Road Initiative,
benefits from the increasingly close economic Chinese arbitration institutions will be trusted
cooperation between China and the world. The and selected by more and more international
publication of the annual report provides a parties in the future. At last, he congratulated
favourable platform for arbitration industry the event on its complete success.

Volume 16 Issue 8, 2019 39


DISPUTE RESOLUTION

Chen Fuyong

San Francisco Summit arbitration from a series of new legal policies,


The 2019 San Francisco Summit on Commercial such as foreign lawyers being allowed to be
Dispute Resolution in China, jointly hosted by engaged in international arbitrations in
the BAC, the Judicial Arbitration and Mediation California, as well as the strong trade
Services (JAMS) and the Silicon Valley connection between China and California.
Arbitration & Mediation Center (SVAMC), was Based on his experience and observation in
successfully held on June 28, 2019. China, Gary Benton, founder of the SVAMC, said
At the beginning of the summit, Chen that China has grown significantly over the past
Fuyong delivered an opening address to express 40 years from a manufacturing power to a
heartfelt thanks to the co-hosts and supporting leader in technology and innovation, and has
organisations for their efforts and support in made remarkable achievements in such areas as
setting the agenda, inviting speakers and event telecommunications, artificial intelligence and
promotion. He hoped that the attendees could energy. Although China and the US are now
fully participate in and enjoy the discussion at facing some economic and trade problems, it is
the summit, so as to better cope with clear that these problems can be resolved
challenges of the future and safeguard the through dialogue, and the BAC summit is just
stability of international trade and business part of such dialogues. Finally, Benton said:
rules based on the exchange of different views. “We don’t judge countries by their richest and
Chris Poole, president and CEO of JAMS, their rulers, we judge a country by their
said that the discussions and exchanges at the people. China has a diverse, wonderful, rich
summit would be of high practical significance culture, a culture that we can learn from. And
in light of the promotion of international that is what I hope we will be doing today and
in the years ahead.”
In his opening address, Yang Yihang,
“Although China and the US are now facing commercial counsellor of the PRC Consulate-
General in San Francisco, said that as the two
some economic and trade problems, it is clear largest economies in the world, the economic
that these problems can be resolved through and trade relations between China and the US
are very important said that the two countries
dialogue” can keep strengthening their dialogues and win-
win cooperation, and that the Commercial

40 www.inhousecommunity.com
Introducing Chinese arbitration to the world
By Chen Fuyong, Beijing Arbitration Commission

“An effective system to solve international commercial disputes


plays a key role in the smooth running of international trade and
commerce”

Office of the Consulate-General will continue reflecting the parties’ joint dedication to
providing service and support to the economic cooperate, and to assist in the better
and trade exchanges. understanding, development and promotion of
The five panel discussions included sessions each others’ services and the use of commercial
on innovative practice and guiding policy in dispute resolution both generally and between
commercial arbitration and mediation, new Chinese parties and/or Canadian parties.
trends of resolving technology and patent- Under the terms of co-operation set out in
related disputes, the impact of regulatory the MoU, Arbitration Place and BAC, when
changes on entertainment sector in the PRC, appropriate and subject to special
restructuring in China’s capital markets and arrangements, will provide facilities and
selected issues of energy and construction services for arbitrations being heard in Canada
dispute resolution. or in Beijing, provide facilities and services for
The closing speech of the San Francisco the organisation of events in Canada or in
Summit was delivered by Cedric Chao, founder Beijing, and may, when appropriate, consult
of Chao ADR and former head of the the other for assistance in recommending
international arbitration practice at DLA Piper. arbitrators or other neutrals.
Looking back at snapshots in time from the
1980s to now, Chao shared what he has seen as Outlook
the growth of the Chinese legal system out of An effective system to solve international
nothing and its rise on the international stage. commercial disputes plays a key role in the
Chao concluded by saying that he expected smooth running of international trade and
everyone at the summit could continue to commerce. By the end of the three summits, as
strengthen exchanges, clear up Thomas Stipanowich, BAC arbitrator and law
misunderstandings, grow together and jointly professor and associate dean of Pepperdine
meet the challenges of the future. University School of Law, commented in his
remarks: “We are all children of our own
Toronto summit cultures,” we witnessed legal systems of
BAC’s 2019 Toronto Summit was hosted on June different countries that are deeply
24, 2019 in cooperation with Arbitration Place characterised by different cultures and legal
and ADR Chambers, and was designed to traditions. Meanwhile, through dialogue, we are
strengthen the ties between dispute resolution delighted to find more similarities and
communities in China and Toronto, with consistency in such different legal systems. The
prestigious speakers from China coming to dialogues between China and the world will
Toronto to share with Canadian dispute continue, and so will the exploration and
resolution practitioners their insight on new practice of the BAC. You are welcome to pay
trends and challenges in a wide range of fields attention to and participate in the 2019 Asia
of commercial dispute resolution in China, Summit on Commercial Dispute Resolution in
including commercial arbitration, commercial China that is to be held in this October in
mediation, construction, energy, investment, Singapore, Kuala Lumpur and Hong Kong.
finance, intellectual property and
entertainment. Along with the visiting Chinese
speakers, the summit featured leading
Canadian arbitration practitioners.
At the summit, BAC signed a memorandum
of understanding (MoU) with Arbitration Place, bjac@bjac.org.cn
which operates Canada’s premier arbitration www.bjac.org.cn
hearing facilities in Toronto and Ottawa,

Volume 16 Issue 8, 2019 41


DISPUTE RESOLUTION

Maxwell Chambers
expands dispute
resolution hub
Asian-Mena Counsel spoke to Philip Jeyaretnam, Chairman of Maxwell
Chambers, about the opening of Maxwell Chambers Suites and how it
will affect dispute resolution in the region.

42 www.inhousecommunity.com
Maxwell Chambers expands dispute resolution capacity
Philip Jeyaretnam, Maxwell Chambers

Asia-mena Counsel: Maxwell Chambers opened PJ: The legal community around the world has
in 2010. What was the aim behind the shown strong interest. Maxwell Chambers Suites
establishment of the institution and how has it will house at least 11 international institutions, as
progressed during the past decade? well as 20 disputes firms from 11 countries. Among
Philip Jeyaretnam: Maxwell Chambers was the 11 international institutions, five will have
established to enable international dispute their case management offices here, including the
resolution institutions and bespoke hearing International Chamber of Commerce’s
facilities to be housed together — it was the first International Court of Arbitration and the
time an integrated facility of this type was built Permanent Court of Arbitration. Maxwell Chambers
and a game changer for the arbitration community. Suites will have the highest concentration of case
When we opened in 2010, we were nominated management offices in the world, and we will see
by the Global Arbitration Review as one of the more high-value cross-border disputes heard in
“Best Developments” in the arbitration industry. Singapore.
We have grown from strength to strength since We will also have six specially designed
then and continue to set new benchmarks. executive suites for short-term rental to cater to
arbitrators, mediators and counsel who are based
AMC: The new Maxwell Chambers Suites will be overseas but fly in and out of Singapore for
launched on August 8 this year. What has driven dispute resolution. We will provide a secure office
the need for expansion? space, staffed by a secretariat that is familiar
PJ: Singapore has taken the lead as a top with the needs of dispute resolution work.
destination of choice for commercial dispute
resolution in Asia. Based on the 2018 International AMC: Singapore has been rising up the ranks of
Arbitration Survey, Singapore is the top arbitration international dispute resolution hubs. What is
seat in Asia and third in the world after London behind its success?
and Paris. Singapore is the only Asian jurisdiction PJ: Parties choose Singapore for many reasons.
to be ranked within top four by the rest of the First, Singapore’s neutrality and strong
world (except Latin America). commitment to rule of law makes us particularly
Singapore’s flagship arbitral institution, attractive to foreign parties involved in cross-
Singapore International Arbitration Centre (SIAC) border disputes. It is a more trusted and
has also seen strong growth in caseload over the stable choice for businesses in a global
years. The SIAC has seen a healthy growth in cases climate of tension and uncertainty.
handled, recently surpassing that of the London Second, Singapore offers a
Centre for International Arbitration and the Hong comprehensive suite of international
Kong International Arbitration Centre. commercial dispute resolution services.
Because of the growing demand for dispute This includes international commercial
resolution work in Singapore, we hold many more arbitration, international commercial
hearings at Maxwell Chambers; our hearing rooms mediation and international
are full on some days. There are also many more commercial litigation. Under
international dispute resolution institutions and each option, users can find
firms that want to establish a base in Singapore to institutions with renowned
tap into the growth of Asia. panels of local and
The Maxwell Chambers Suites — which will be international arbitrators,
officially open on August 8 this year — is thus a mediators or judges.
timely addition. It will triple our current capacity Third, Singapore has a
and allow us to meet the growing demand. The strong pool of dispute
new extension will be dedicated to housing resolution firms. About 40 of
dispute resolution institutions and firms, while the the top 100 international law
current building will house the hearing facilities. firms by revenue are based in
The two buildings will be connected by an Singapore.
overhead link-bridge. Fourth, there is an open regime
for the practice of international
AMC: How is the response to the new Maxwell commercial arbitration — for
Chambers Suites so far? What can we look example, parties engaging in
forward to? arbitration in Singapore have the
Philip Jeyaretnam

Volume 16 Issue 8, 2019 43


DISPUTE RESOLUTION

Maxwell Chambers Suites

freedom to engage lawyers of any nationality and of the Maxwell Chambers Suites, Singapore will be
to use any governing law. There are work pass hosting the signing ceremony for the new UN
exemptions for arbitration and mediation services, Convention on International Settlement
and tax-exemptions for non-resident arbitrators Agreements Resulting from Mediation, also
and mediators. referred to as the Singapore Convention on
And finally, Singapore provides world-class Mediation.
infrastructure for dispute resolution hearings at The Singapore Convention on Mediation is the
Maxwell Chambers. missing piece in the international dispute
resolution enforcement framework. For litigation,
AMC: What is Singapore doing to maintain this we have the Hague Convention on Choice of Court
position? Agreements. For arbitration, there is the New York
PJ: As business needs change, Singapore Convention. The Singapore Convention on
proactively updates its legislative framework to Mediation will enhance cross-border enforceability
ensure that it remains relevant and stays ahead of of mediated settlement agreements. Businesses
the competition. For example, in 2017, Singapore will benefit with greater certainty and assurance.
amended its laws to allow for third-party funding
in international commercial arbitration. It also
enacted the Mediation Act to enhance the
enforceability of mediated settlement
agreements.
Singapore is also now taking the lead in
developing international commercial mediation, to
complement the lead it has established in
MAXWELL CHAMBERS PTE LTD
international commercial arbitration. Singapore
Tel: (65) 6595 9010
took the lead and contributed directly to the
Email: info@maxwellchambers.com
development of the Convention at the Uncitral.
Website: http://maxwellchambers.com
On August 7, 2019, one day before the opening

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Volume 16 Issue 8, 2019 47


ASIAN-MENA COUNSEL DIRECT
HMP Law THAILAND Russin & Vecchi 2016 2017 2018
Tel: (82-2) 772-2700 Ho Chi Minh Office:
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Nguyen Huu Minh Nhut - Partner
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48 www.inhousecommunity.com
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— Translation —
Impact India Foundation
An international initiative against avoidable disablement.
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