Академический Документы
Профессиональный Документы
Культура Документы
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.
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
Publishers of
• ASIAN-MENA COUNSEL
TM
• IN-HOUSE HANDBOOK
TM
Organisers of the
• IN-HOUSE CONGRESS events
TM
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
2 www.inhousecommunity.com
JURISDICTION UPDATES
Key legal developments affecting the In-House Community along the New
Silk Road
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
AFRICA
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
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
8 www.inhousecommunity.com
JURISDICTION UPDATES
SOUTH KOREA
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
12 www.inhousecommunity.com
Online, Cloud and e-Resources ...
www.inhousecommunity.com
The online home of the In-House Community,
www.inhousecommunity.com features vital daily legal
updates for in-house counsel, company directors and
compliance managers, and archived content from
asian-mena Counsel contributors.
2019
Add us to
Your Home Screen
14 www.inhousecommunity.com
FIND A LAWYER ...
SOUTH KOREA EXTERNAL COUNSEL
EVENT REPORTS
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
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
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.
18 www.inhousecommunity.com
DEAL 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.
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
Erick Gunawan
Head of Forensics, Law In Order
erick.gunawan@lawinorder.com
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
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44 (0)1242 821113 Jurisdiction: China Jurisdiction: China,
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Mysore
Prasanna Rebecca Tai Yulin Zhang
Jurisdiction: India Andersen (Jerry)
Phone: (91) 80 2211 2816 Jurisdiction: Singapore Jurisdiction: China
Email: mysore.prasanna@aarnalaw.com Phone: (65) 9387 1131 Email: zhangyulin@linli-law.com
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Jurisdiction: Singapore Jurisdiction: Thailand
please email our Publisher, Rahul Prakash, at
Phone: (65) 6713 0234 Email: satoshi.kawai@
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Email: sreeni@straitslaw.com.sg chandlermhm.com
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
28 www.inhousecommunity.com
UAE – Dynamism in business and dispute resolution in the Gulf
By Louise Bowmaker, Horizons & Co
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.
SCIA’s innovation:
Optional appellate
arbitration in China
A substantive appellate mechanism constitutes a
beneficial complement to the finality of single-instance
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
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
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
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.
Chen Fuyong
40 www.inhousecommunity.com
Introducing Chinese arbitration to the world
By Chen Fuyong, Beijing Arbitration Commission
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,
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
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
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Website: http://maxwellchambers.com
On August 7, 2019, one day before the opening
44 www.inhousecommunity.com
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Meyer Unkovic Scott
Website: lodlaw.com Website: www.hughes-castell.com
Tel: (412) 456 2833
Email: du@muslaw.com
Contact: Dennis Unkovic Legal Labs Recruitment
Website: www.muslaw.com
KorumLegal
Tel: 3911 1201 Tel: Singapore (65) 6236 0166
CMA IP IA LDR RE
Email: Titus.Rahiri@korumlegal.com Hong Kong (852) 2526 2981
Contact: Titus Rahiri Email: resume@legallabs.com
Website: www.korumlegal.com Website: www.legallabs.com
Law In Order
— Other Services —
Singapore Office:
— Arbitration — Tel: (65) 6714 6655 MEDITATION
Services Email: singapore@lawinorder.com
Contacts: Philip Simmonds, Regional Sales Manager (Asia) Kadampa Meditation Centre Hong Kong
Website: www.lawinorder.com.sg KMC HK is a registered non-profit organisation. We offer
Hong Kong Office: systematic meditation and study programmes through
Beijing Arbitration Commission / Tel: (852) 5803 0000 drop-in classes, day courses, lunchtime meditations,
Beijing International Arbitration Center Email: hongkong@lawinorder.com weekend retreats and other classes.
(Concurrently use) Contacts: Philip Simmonds, Regional Sales Manager (Asia) Tel: (852) 2507 2237
Tel: (86) 10 85659558 Website: www.lawinorder.com.hk Email: info@meditation.hk
Email: xujie@bjac.org.cn Website: www.meditation.hk
Contact: Mr. Terence Xu(許捷)
Website: www.bjac.org.cn LegalComet Pte Ltd (LEGALCOMET)
Tel: (65) 8118 1175 SPORT & LEISURE
Contact: Michael Lew, Founder & CEO
Email: michael@legalcomet.com Splash Diving (HK) Limited
Hong Kong International Arbitration Centre Website: www.legalcomet.com Learn to Dive and Fun Dive with the Winner of the PADI
Tel: (852) 2525 2381 Outstanding Dive Centre/Resort Business Award!
Email: adr@hkiac.org Tel: (852) 9047 9603, (852) 2792 4495
Website: www.hkiac.org Mintz Group Email: info@splashhk.com
Tel: (852) 3427 3717 Website: www.splashhk.com
Contacts: Jingyi Li Blank
Email: jblank@mintzgroup.com
Maxwell Chambers Pte Ltd
Tel: (65) 6595 9010
Website: www.mintzgroup.com — Charitable —
Email: info@maxwell-chambers.com
Website: http://maxwell-chambers.com
Organisations
— Translation —
Impact India Foundation
An international initiative against avoidable disablement.
Shenzhen Court of International Arbitra- Pacific Legal Translations Limited Promoted by the UNDP, UNICEF and the World Health
tion (Shenzhen Arbitration commission) Specialist translators serving the legal community. Organization in association with the Government of India.
Tel: (86) 755 83501700, (86) 755 25831662 Tel: (852) 2705 9456 Tel: (91) 22 6633 9605-7
Email: info@scia.com.cn Email: translations@paclegal.com Email: nkshirsagar@impactindia.org
Website: www.scia.com.cn Website: www.paclegal.com Website: www.impactindia.org