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1 April 2016 HK$280 h k - l a w y e r . org Cover Story Face to Face with Professor K C Chan Secretary for Financial Services and the Treasury COMPETITION LAW CONSTRUCTION DISPUTE RESOLUTION Television Broadcasts Ltd v Communications Statutory Adjudication Schemes Pyrrho Investments: English Predictive Authority: Implications for the New in the UK and under Hong Kongs Coding Case Strikes New Balance in Competition Ordinance Proposed Legislation E-Discovery Television Broadcasts Ltd v Communications Pyrrho Investments Authority

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3 www.hk-lawyer.org HONG KONG LAWYER Hong Kong Lawyer The official journal of The Law Society of Hong Kong (incorporated with limited liability) () www.hk-lawyer.org THE OFFICIAL JOURNAL OF THE LAW SOCIETY OF HONG KONG Editorial Board Chairman Inside your April issue Huen Wong Jenkin SF Chan Peter CH Chan Heidi KP Chu Steven B Gallagher Warren P Ganesh Minkang Gu Julienne Jen Dave Lau Byron Leung George YC Mok Anne Scully-Hill Michelle Tsang Adamas KS Wong Tony Yen 14 COVER STORY THE COUNCIL OF THE LAW SOCIETY OF HONG KONG President Stephen WS Hung Vice-Presidents Thomas ST So Melissa K Pang Council Members Junius KY Ho Huen Wong Peter CL Lo Michael J Lintern-Smith Billy WY Ma LAW 27 COMPETITION Sylvia WY Siu Cecilia KW Wong Kenneth SY Ng Joseph CW Li ON 32 CONSTRUCTI Amirali B Nasir Brian W Gilchrist Gavin P Nesbitt Denis G Brock 4 EDITORS NOTE Nick Chan Bonita BY Chan 6 PRESIDENTS MESSAGE Mark Daly CM Chan 8CONTRIBUTORS Secretary-General 10 FROM THE SECRETARIAT Heidi KP Chu 12 DISCIPLINARY DECISIONS Law Societys Contact: www.hklawsoc.org.hk Tel: +852 2846 0500 13 FROM THE COUNCIL TABLE Annual Subscription : HK$3,360 14 COVER STORY Thomson Reuters Hong Kong Limited Face to Face with 10/F, Cityplaza 3, Taikoo Shing, Hong Kong Professor K C Chan Tel: +852 2847 2088 Secretary for Financial Services and the Treasury www.thomsonreuters.com ISSN 1025-9554 24 LAW SOCIETY NEWS Copyright is reserved throughout. No part of this publication can be reproduced in whole or 27 COMPETITION LAW part without the express permission of the editor. Television Broadcasts Ltd v Communications Television Broadcasts Ltd v Contributions are invited, but copies of work should Authority: Implications for the New Competition Communications Authority be kept, as Hong Kong Lawyer can accept no Ordinance responsibility for loss. 32 CONSTRUCTION Statutory Adjudication Schemes in the UK and under Hong Kongs Proposed Legislation

4 April 2016 HK$280 Editor 38 DISPUTE RESOLUTION Cynthia G Claytor Pyrrho Investments: English Predictive Coding Pyrrho Investments [email protected] Case Strikes New Balance in E-Discovery Tel: +852 2847 8053 44IN-HOUSE Managing Editor Why Cybersecurity Needs In-House Counsel Ranajit Dam [email protected] Tel: +65 6870 3393 50 INDUSTRY INSIGHTS Design and Production 64CASES IN BRIEF Samson Pang 74 PROFESSIONAL MOVES Translation team 77 A BOOK REVIEW InfoPower Ill have the Law on You: The Selected Letters of Ill have the Law on You: The Selected Joanne Man Letters of John FytitPaul Brennan John Fytit by Paul Brennan Matty Kwong Tang Mei Kwan 78 LEGAL HISTORY QUIZ Special thanks to 80 CAMPUS VOICES Hong Kong Law Reports & Digest and 82 LEGAL MARKET Reuters News In-House Market: 2016 Forecast 2016 For marketing/promotion opportunities please contact: Henry Cheng [email protected] Tel: +852 2847 2016 For subscriptions contact: Traffic Administrator Gloria Ng [email protected] Tel: +852 2843 6415 Publisher Amantha Chia SOLUTION [email protected] 38 DISPUTE RE Tel: +65 6870 3917 All information and views expressed by contributors and advertisements in Hong Kong Lawyer do not necessarily reflect the official opinion of The Law Society of Hong Kong. Whilst every effort is made to ensure editorial and commercial integrity, no responsibility is accepted by 44 IN-HOUSE the Publisher or The Law Society of Hong Kong for the accuracy of material appearing in this journal. Members are encouraged to contribute but the Editorial Board of The Law Society of Hong Kong reserves the right to publish only material it deems appropriate. T 82 L EGAL MARKE

5 April 2016 EDITORS NOTE The April issue is all about innovation and remaining resilient in the face 4 of technological and economic change. Our Disputes Resolution feature (41) (p. 38) discusses a recent development in the e-discovery arena: namely, an English High Court decision that signals a growing acceptance of predictive coding and similar technologies in litigation. In this case, the Court offered its blessing on the use of predictive coding in certain cases and under certain conditions, which this feature outlines and explores. As more legal communities and courts warm up to the use of predictive coding and similar technologies, it will likely replace the traditional gold standard of using keyword search terms using Boolean logic to identify (Boolean logic) responsive electronically stored information. Given the English influence on Hong Kongs discovery rules and e-discovery practice direction, this decision could have a local impact. As such, readers would be well- served to stay abreast of developments in this area and explore how new technology-assisted review tools can be deployed to resolve disputes more quickly and cost efficiently. Our In-House article (p. 44) provides an overview of the local (47) cybersecurity and data privacy scene, as well as steps in-house counsel are taking to protect their organisations data. Also focused on in-house (84) counsel-related developments, our Legal Markets piece (p. 82) provides an overview of how Hong Kongs in-house legal market has responded to the slowdown of Chinas economy and offers predictions on the likely demand for in-house counsel across three key areas in 2016. 2016 Speaking to initiatives being carried out to weather the currently unstable global economic climate, the Secretary General (p. 10) (10) continues to highlight Law Society-led initiatives to forge stronger ties with legal communities overseas this time focusing on new (7) developments in its relationship with Hungary; while the President (p. 6) speaks to key concerns arising from the introduction of new legal technology and the rise of alternative legal service providers. In a similar (20) tone, the Cover Story (p. 14) highlights a number of Government-led 2016 initiatives intended to drive economic development in Hong Kong in 2016 and beyond. Also embracing change, Hong Kong Lawyer has launched a new website with a fresh design and new user-friendly features to better enable you to find the information you want, when you want it. We are still at the same address (http://www.hk-lawyer.org), but are now equipped to better (http://www.hk-lawyer.org) serve your needs when you are on-the-go. Cynthia G. Claytor Cynthia G. Claytor Editor, Hong Kong Lawyer Legal Media Group Legal Media Group Thomson Reuters [email protected] [email protected] 4www.hk-lawyer.org

6 SIG HTS S T O IN S NE W Y E R OF EG AL L AW O R E AK ING L G KONG FIN DM O M BRE ISIT HON QU ICKLY A NT IT. FR ALYSIS, V B SIT E TO N Y OUW AND AN N ED WE N T, WHE L Y DESI G YO U WA NEW MA TION E IN FOR TH We are still at the same address: http://www.hk-lawyer.org But now offer new and enhanced features, such as: Weekly e-newsletters Digital e-journals, available for download Calendar of upcoming events

7 April 2016 PRESIDENTS MESSAGE Alternative Service Providers perspective including whether to insource or outsource legal work. Some operate like a multi-disciplinary practice (MDP) offering The legal industry is changing rapidly, in resolution has been viewed by those skeptical all kinds of professional advice, including particular in the way legal services are of ABS as encouraging non-lawyers and legal advice in a non-law firm setup. provided to the public. companies not guided by principles of the legal profession to deliver legal services. These alternative service providers are Since the introduction of Alternative Business prevalent around different parts of the world. Structures (ABS) in England & Wales in The Law Society is closely monitoring The way they operate may vary slightly 2011, a number of other jurisdictions have developments in this area, taking into depending on where they are situated, but since been actively considering how this account the interaction of Hong Kongs it appears what some of them are doing in innovation will impact them. In September legal service industry with that in other essence is functionally indistinguishable from 2015, the Law Society of Upper Canada jurisdictions. what law firms do. Further, many of them published a report on this issue and noted describe themselves as legally qualified that it was considering whether it is in the Alternative Service Providers thereby offering the comfort implicitly that public interest to liberalise its rules regarding Apart from the ownership and investment they have the capability of a lawyer to provide business structures through which lawyers structure of law firms, the way legal services legal services. However, since they are not and paralegals may provide legal services. are delivered is also evolving rapidly in law firms, they fall outside the regulatory This includes permitting small scale ABS response to the changing needs of the regime governing legal practices and are not (ie, only minority ownership of law firms by market. subject to any professional ethical rules. non-lawyers). The advent of technology is a major factor One of the core values of the legal profession In Singapore, the Ministry of Law established causing fundamental changes to the manner is the obligation of confidentiality of clients. the Legal Services Regulatory Authority in which legal services are delivered. As Traditional law firms put in significant in November 2015 in order to streamline technology keeps advancing our way of life, resources to ensure that there is strict licensing matters relating to law practices in some entrenched processes in legal practice compliance by their practices. The alternative Singapore under a single authority. The new also find themselves faced with the rise of service providers typically rely heavily on regulatory regime also introduces flexibility other options that claim to be equally or online communication, eg, an intranet for law practices to apply for non-lawyers to more efficient but at a much lower cost, portal, among the team and with the clients become partners, directors or shareholders for instance, the development of software as well as online storage and retrieval of of their firms, subject to specific requirements solutions to automate proof-reading tasks documents. The disclosure of and access to and limits. including processes like checking for defined client information is not regulated by any terms, clause cross reference, spelling and ethical rules. In February 2016, the American Bar other drafting errors to ensure consistency Association passed a resolution Another area of concern is the conflict of and accuracy. acknowledging the new developments in interest. Traditional law firms normally the legal marketplace and setting out 10 Recently, we see the rise of alternative implement elaborate conflict checking regulatory principles (such as protection service providers in the market. Some use systems to ensure that they are not in breach of the public, transparency of services and technology as a promotional tool offering of any conflict rules. Again, the alternative delivery of affordable and accessible legal services on review of legal documents by service providers are not subject to these services) to guide each states highest court their software applications. Some adopt professional ethical standards. Nor are they as it assesses existing regulatory frameworks the approach of a management consultancy subject to mandatory professional indemnity and any other regulations related to non- claiming to help corporations with their cover, unlike law firms. The Law Society is traditional legal service providers. The complex legal problems from a business 6www.hk-lawyer.org

8 April 2016 PRESIDENTS MESSAGE keeping a close watch on these alternative service providers and seeking views from the Administration as to how best to bring them into the regulatory regime for the protection of the interest of the public. (MDP) 2011 The world is changing constantly and (ABS) with the development of technology, it is moving at a pace faster than we have 20159The Law ever seen before. In the coming years, it is certain that the increase in computing Society of Upper Canada power and new devices will bring in even more advanced lawyering tools on, for instance, document automation, decisions ABS() engines, e-discovery tools, communication and collaboration tools, legal research 201511 tools, and legal expert systems. It will facilitate a further resource reorganisation and filter out more mechanical tasks. Nevertheless, technology and unregulated consultancy can never replace the lawyering tasks at the other end of the spectrum creativity, compassion, 20162 empathy, invention, eloquence, argument, 10 advocacy, negotiation, judgment and ( conviction to work in clients best interests ) in a rigorously professionally regulated environment. ABS Stephen Hung, President ( ) www.hk-lawyer.org 7

9 April 2016 CONTRIBUTORS Kelvin Kwok The University of Hong Kong, Assistant Professor Des Voeux Chambers, Barrister Des Voeux Mr. Kwok specialises in competition law as a practising Des Voeux barrister at Des Voeux Chambers and as an academic at the University of Hong Kong. He has experience handling competition law matters involving dispute resolution, exclusion/exemption-related applications and advisory work. / He currently teaches competition law at HKU and publishes internationally on the subject. He also serves on the Bar Associations Special Committee on Competition Law, the Consumer Councils Competition Policy Committee, and the Hong Kong Competition Associations Executive Committee, and as a Non-Governmental Advisor to the International Competition Network. Kaiser Leung Des Voeux Chambers, Barrister Des Voeux Mr. Leung was called to the Bar and joined Des Voeux 2015 Chambers as a tenant in 2015. Upon completion of his Des Voeux pupillage, he served an extended mini-pupillage in London Keat- at Keating Chambers, focusing on construction law. ing Mr. Leung is developing a broad practice, covering both advisory and advocacy work in different areas, including commercial, company, insolvency, construction, land, trusts and probate. He has advised on various commercial matters and been involved in an international arbitration conducted in Hong Kong. 8www.hk-lawyer.org

10 April 2016 CONTRIBUTORS Sebastian Ko Sebastian Ko Epiq Systems, Hong Kong, Director Mr. Ko is a member of the document review services team Mr. Ko of Epiq Systems in Hong Kong and is admitted to practice in Hong Kong and New York (USA). Epiq Systems is a leading global provider of technology-enabled solutions for electronic discovery, bankruptcy and class action administration. Michael Yuen Michael Yuen Epiq Systems, Hong Kong, Manager Mr. Yuen is a member of the document review services team Mr.Yuen of Epiq Systems in Hong Kong and is admitted to practice in California (USA). Epiq Systems is a leading global provider of technology-enabled solutions for electronic discovery, bankruptcy and class action administration. Dmitri Hubbard, Esq Dmitri Hubbard, Esq Xerox Legal Business Services, Regional Vice President Mr. Hubbard is a Regional Vice President for Xerox Legal Mr. Hubbard Business Services, the legal and compliance solutions division of Xerox Corporation, in Hong Kong. In that role, he has significant experience serving clients in connection with internal and regulatory investigations, international and cross-border litigation, arbitration and compliance. Michael Allen Michael Allen Financial Services Pure Search, Associate Director Pure Search Mr. Allen specialises in the placement of legal Michael professionals into in-house positions in banking and financial services across north Asia. He has established a strong client and candidate base and has successfully placed lawyers into banks, asset management and private equity firms from Vice President to Chief Legal Officer level. Mr. Allen has experience working in both London Michael and Hong Kong. He started his career in London at a 2014Pure Search global recruitment firm across banking and alternative investments, before joining Pure Search in 2014 and moving to Hong Kong. www.hk-lawyer.org 9

11 April 2016 FROM THE SECRETARIAT Ms. Heidi Chu, Secretary General An Introduction to the Legal Profession in Hungary The Law Society signed a Memorandum of Understanding with the 2016123 Hungarian Bar Association on 23 January 2016. Why Hungary? It sounds distant and different, but I think it is in fact close and similar. Hong Kong and Hungary have close trade relationships. Hungary is the largest export market of Hong Kong in Central and Eastern Europe. Bilateral 2010 trade between the two places grew at about 4.6 percent annually between 20144.6%201413 2010 and 2014 and amounted to about EUR 1.3 billion in 2014. In 2014, about 201413 EUR 1.3 billion or 20.5 percent of the total trade between Hungary and the 20.5% mainland of China was routed through Hong Kong. Hong Kongs major export items to Hungary include electrical apparatus for switching or protecting electrical circuits while Hong Kongs main imports from Hungary include telecommunications equipment and automatic data processing machines. 20156 Hungary is also covered by the Belt and Road Initiative. In June 2015, China signed an MOU with Hungary promoting the Initiative. This was the first such document China has signed with a European country. It is perhaps time to know more about this beautiful place and in particular, Andras the legal profession there. I have had an informative exchange with Dr. Szecsky Andras Szecsky, the Vice President of the Hungarian Bar Association, and I am grateful for what he shared with me about the Hungarian legal profession. Legal System The Hungarian legal system is a continental European civil law legal system, which is in many ways similar to the German/Austrian/Swiss legal system, but there are traces of the French Civil Code as well. Traditionally, the three main branches of the Hungarian legal system are () civil law, criminal law and public administrative law (including constitutional law). The highest legislative body is the Parliament, but the Government, the 200451 Secretaries of the State and local Municipalities can also issue decrees. Hungary is a member of the European Union since 1 May 2004. The laws and regulations of the EU are therefore applicable in Hungary. Legal Profession 90 20 The legal profession in Hungary is fused. There used to be two bars for 19 lawyers and legal advisers and they merged in the early 1990s. There are 20 territorial Bar Associations, one for each of the 19 counties of Hungary together with one for the capital city of Budapest. The Budapest Bar Association is currently the largest Bar Association in Hungary. 10www.hk-lawyer.org

12 April 2016 FROM THE SECRETARIAT The Hungarian Bar Association is the overarching organisation comprising representatives of the territorial Bar Associations and its functions are mainly regulatory. There are currently 13,500 attorneys practising in Hungary. With roughly a population of around 10 million, there is on average one attorney in every 750 people. This overall ratio is slightly lower than, but largely similar to, that in Hong Kong where we have one practising solicitor in every 850 people. However, compared to Hong Kong, Hungary is geographically huge and most attorneys practise in Budapest where the ratio is estimated 13,500 to be around one attorney in every 300 people. 1,000750 Becoming an Attorney (850) Normally, it takes seven years for a person to qualify as a solicitor in Hong Kong, counting from the year he starts law school in a university. 300 In Hungary, it takes a little longer five years at a law school plus three years of training before one is qualified to take the Bar Examination. Only after having passed the Bar Examination can one practise as an attorney. 7 Form of Practice 53 Attorneys in Hungary can either practise law as sole practitioners or in partnership with other attorneys.Approximately half of the lawyers in Hungary practise as sole practitioners and the other half in partnerships.Again, this is interestingly similar to the Hong Kong profile as we have nearly half (46 percent) of legal practices in the form of sole proprietorships. (46) In Budapest, there are about 50 firms with more than 10 attorneys whereas in the countryside, practice as sole practitioners is more common. 1050 Attorneys in Hungary are entitled to provide legal advice to clients in any field of law and no further qualification is required before an attorney can practise in individual specialised areas of law. Most attorneys carry on a mixed practice but predominantly in civil law and criminal law. The signing of the MOU lays a very good foundation for the Law Society of Hong Kong and the Hungarian Bar Association to work together to explore further collaboration opportunities for the benefit of our respective members. Monthly Statistics on the Profession (updated as of 29 February 2016): (2016229) Members (with or without practising certificate) 9,925 () 9,925 Members with practising certificate 8,584 (out of whom, 6,548 (76%) are in private practice) 8,584 (6,548 (76%) ) Trainee Solicitors 1,012 1,012 Registered foreign lawyers 1,323 (from 31 jurisdictions) 1,323 (31) Hong Kong law firms 857 (47% are sole proprietorships and 42% are firms with 2 to 5 partners) 857(47%2542%) Registered foreign law firms 76 76 Civil Celebrants 2,074 2,074 Reverse Mortgage Counsellors 440 440 Solicitor Advocates 39 (34 in civil proceedings, 5 in criminal proceedings) 39 (345) Student Members 177 177 Registered Associations between Hong Kong 32 () 32 law firms and registered foreign law firms (including Mainland law firms) www.hk-lawyer.org 11

13 April 2016 DISCIPLINARY DECISIONS Liu Yubing (the Respondent) () Rule 2(a) and (d) of the Foreign Lawyers Practice Rules (the FLPR) 2(a) (d) Hearing Date 26 November 2015 20151126 Findings and Order 16 February 2016 2016216 The Solicitors Disciplinary Tribunal (the Tribunal) found the () following complaint against the Respondent proved: Complaint Breach of r. 2(a) and (d) of the FLPR in that the Respondent, formerly a registered foreign lawyer of a solicitors firm, took the employers office money; such conduct was unbefitting of a foreign 2(a)(d) lawyer. The Tribunal ordered that: (1) the Respondent be censured; (1) (2) the Respondent be prohibited from being employed by any (2)12 solicitor or solicitors firm or any foreign lawyer or foreign law firm in Hong Kong for a period of 12 months from the date of the Order; and (3) (3) the costs of these proceedings, including the costs of the Clerk and the costs of the Law Society in the investigation, be borne and paid by the Respondent, on a party and party basis, to be taxed if not agreed. Ms. Cynthia Yen, In-House Prosecutor of the Law Society of Hong Kong, for the Applicant The Respondent was absent Mr. Iu Ting Kwok, Clerk to the Tribunal Tribunal Members: () Mr. Albert Bux (Chairman) Mr. Simon Reid-Kay Mr. Wong Kong Tin Ms. Lee Wai Fun Stella 12www.hk-lawyer.org

14 April 2016 FROM THE COUNCIL TABLE FROM THE COUNCIL TABLE The Proposed Legislation to Implement the Recommendations of the Law Reform Commission Report on Child Custody and Access 20053 The Law Reform Commission of Hong Kong published a Report on Child ()72 Custody and Access (LRC Report) in March 2005 and put forward a total of 72 recommendations. The theme underlining the LRC Report is the introduction of 201511 a parental responsibility model into Hong Kong family law. In November 2015, the Labour and Welfare Bureau (LWB) released a consultation paper on The Proposed Legislation to Implement the Recommendations of the Law Reform () Commission Report on Child Custody and Access and sought public views on () two main issues, namely a draft Children Proceedings (Parental Responsibility) Bill (the Draft Bill) and support measures for implementing the above recommendations of the LRC Report. Draft Bill The main purpose of the Draft Bill is to implement the recommendations made in the LRC Report, including, inter alia: replacing the concept of guardianship with the concept of parental responsibility; introducing various statutory lists covering parental responsibility and major decisions concerning childs upbringing that would require consent or notification of the other parent; introducing a range of new court orders to replace the existing custody and access orders; and consolidating the law relating to responsibilities of parents for children and new legislative provisions into one ordinance. (13) The Draft Bill also seeks to repeal and re-enact the Guardianship of Minors Ordinance (Cap. 13). Support Measures for Implementing the Law Reform The LWB in the consultation paper proposes three support measures to implement the law reform: publicity measures and public education to change the mindset of the parents; handbooks, website, television and radio announcements to promote the / concept of parental responsibility; and a two-year pilot scheme for children contact service to facilitate children contact with separated or divorced parents. The Law Society supports the law reform on child custody and access and has 10 been pressing for this for the past decade. The Law Society has prepared a written submission providing comments on the Draft Bill. Among others, a number of support services are suggested: for example, introducing parenting coordination for high conflict parents, providing specialised training to social workers, setting up a Maintenance Board in Hong Kong, etc. A committee composed of representatives from the legal profession, NGOs and government officials should also be set up to facilitate the smooth implementation of the law reform. The full submission is available at http://www.hklawsoc.org.hk/pub_e/news/ http://www.hklawsoc.org.hk/ submissions.asp. pub_c/news/submissions.asp www.hk-lawyer.org 13

15 April 2016 As an important financial, commercial and maritime centre, Hong Kong is well-equipped to help with the Belt and Road Initiative. To maximise our potential to tap into opportunities in new markets, I encourage lawyers to reach out to the legal sectors in other countries to develop more ties. We need everyone on board to help us drum up interest. 14www.hk-lawyer.org

16 April 2016 COVER STORY Face to Face with Professor K C Chan Secretary for Financial Services and the Treasury By Cynthia G. Claytor On the heels of the Finance Secretarys 2016 budget speech, Professor K C Chan, Secretary for Financial Services and the Treasury, discusses how Hong Kong plans to maintain its edge in the unsteady global economic climate. I consider myself an academic, who had FinTech (or financial technologies) the good fortune of joining government, developers and cross-boundary financial Professor Chan said as he adjusted his services providers. Before setting off for glasses. It was a chilly Monday afternoon, but his next meeting, he reiterated his hope for in just a few short exchanges, the windowless solicitors continued support in assisting drawing room in the Central Government the FSTB in its efforts to further develop Offices was brimming with warmth. Hong Kongs economy. Then, with a smile, Professor Chans convivial demeanor and he quickly offered his best wishes. patience in explaining technical issues created a sense of ease that stood in stark Politics is Politics contrast with the rooms austere dcor. When asked how his academic background In less than an hour, Professor Chan colours his public policy-making decisions seamlessly steered the conversation from at the FSTB, Professor Chan explained his academic background to the Financial that he relied on it in a number of ways. Services and the Treasury Bureaus (FSTB) Clearly, when it comes to financial plans to face global economic paradigm regulation, a good understanding of how shifts, specifically by supporting the Belt the markets work is very important. In and Road Initiative and by introducing new this respect, he has drawn upon his measures to assist a variety of players in understanding of finance and economics innovative and established markets, including to gauge the likely macro-economic www.hk-lawyer.org 15

17 April 2016 effects of certain policies or regulations. The Belt, the Road and the bond issuance and asset and risk Although, finding workable regulatory Bank management services. Professionals solutions requires much more than Professor Chan indicated that the will be integral and will play a big academic analysis. It also requires Central Government is taking the Belt role in everything we plan to do with an understanding of what will work and Road Initiative forward as a strategy this project. We will be especially politically. You have to be able to for long-term development, with the dependent on lawyers to help with anticipate how different governments aim of redirecting domestic overcapacity evaluating deals and tackling a variety will respond to new situations and what and capital for regional infrastructure of legal challenges, he said. But even will be required, politically-speaking, to development. The overarching goal is to before concrete legal issues arise, get certain things done, he noted. improve its trade relations with a variety lawyers can help by developing a basic of emerging and established markets understanding of relevant Belt and Fortunately, as a professor at Ohio State across an economic land belt (which will Road markets as well as their laws and University and the Dean of Business cut through countries along the original institutions in anticipation of assisting and Management at the Hong Kong Silk Road), and a maritime route (which business people, who will need to University of Science and Technology, will link Chinas port facilities with the navigate in them. he had to navigate the fields political terrains when working with market African coast, pushing up through the With the expectation of emerging participants and dealing with a variety Suez Canal into the Mediterranean). markets along the Belt and Road of stakeholders. My faculty members Honing in on Hong Kongs status as an routes becoming a new impetus for were my stakeholders, the university important financial, commercial and developing Hong Kongs economy, the management, as well, so I got a lot maritime centre, Professor Chan echoed Finance Secretary and the FSTB have of experience dealing with different the Finance Secretarys sentiments been leading delegations to a number pressure groups. While the politics that Hong Kong is well-equipped to of strategically important countries involved in academia can be one of the help with the Belt and Road Initiative. and hosting seminars and conferences, worst politics is politics. Its all about Among other things, he indicated that such as the Asian Financial Forum, managing the expectations of diverse it could provide Mainland enterprises to promote the Citys core industries. stakeholders and working well with that seek to go global with a wide They have also been pursuing trade different pressure groups to get things range of professional services in the and investment agreements to expand done, he said. Whether in academia or financial and legal markets, including Hong Kongs commercial and trading in government, it requires cultivating international investment, cross-border networks. Professor Chan indicated that similar skills. trade settlement, Renminbi (RMB) the primary goal was to create more 16www.hk-lawyer.org

18 April 2016 COVER STORY favourable conditions for Hong Kong and reshaping traditional and emerging The Government is also coordinating enterprises to access the Mainland and markets, Hong Kong has pledged its efforts with those in the private overseas markets. From entering into to uphold its long-held principles of sector that have chosen to establish Free Trade Agreement negotiations with technology-neutrality and protect laboratories and incubation ASEAN to pursuing and concluding consumer rights as new technologies programmes in Hong Kong. For Comprehensive Agreements for the are adopted. The Governments aim instance, it has set up a dedicated team Avoidance of Double Taxation with Belt is to ensure the healthy development under Invest Hong Kong (InvestHK) to and Road countries, the Government of local industries while maintaining organise international events and assist has been diligently working to build adequate regulatory oversight. start-ups, investors and R&D institutions up more government-to-government with establishing their presence in the The FinTech Surge links. But he also noted that more City. must be done. To maximise Hong Kongs Hong Kong plans to take advantage of potential to tap into opportunities in the FinTech surge, which is disrupting new markets, he encouraged lawyers to industries such as mobile payments, reach out to the legal sectors in other money transfers, loans, fundraising, countries to try and develop more ties. asset management and insurance. We need everyone on board to help us We think FinTech presents great drum up interest and strengthen our opportunities, Professor Chan said, not economic and trade ties. only because they can make our banks and financial institutions more efficient, Before moving to the next discussion but also because they can enhance the point, Professor Chan briefly experience of customers and generate commented that the FSTB will also many new business opportunities. continue its efforts to actively engage the Asian Infrastructure Investment Government-led Initiatives & Incentives Bank (AIIB) and the Central Last year, the Finance Secretary Government in discussions on Hong tasked Professor Chan with forming Kongs participation in AIIB as a non- and chairing a FinTech Steering Group sovereign territory. He said Hong Kong to identify ways to drive FinTechs plans to continue to support the work development and application in Hong of the AIIB and intends to leverage Kong. New measures being introduced its expertise to service AIIB in capital to further this end include: markets financing, asset management and dispute resolution. He specifically the establishment of a HK$2 billion pointed to fundraising as a very natural Innovation and Technology Venture area in which Hong Kong could help; Fund by the Government to co-invest and with the City being so physically with private venture capital funds on close to Beijing, he said Hong Kong a matching basis in local technology could also serve as a good logistics start-ups; point for any kind of operations that the the expansion of the Science Park to AIIB sees fit. provide additional space for start-ups and other technology companies by Nurturing Innovation 2020; and Breakthroughs in technology are the Cyberport setting aside a bringing about paradigm shifts in dedicated space of 3,000 square different economic and social spheres, metres in its Smart-Space for FinTech connecting far-flung markets and activities and rolling out a designated revolutionising how we do business. To incubation programme for 150 capitalise on the way these new forces FinTech start-ups over the next five are disrupting conventional modalities years. www.hk-lawyer.org 17

19 April 2016 in the digital sphere. Another issue will be ensuring the adequacy of authentication methods used will a finger print or other biometric authentication be safe enough or should additional authentication be required? Regulators will need to look at different methods and see if they are actually safe enough, he said. Other regulatory issues will involve setting limits for new systems. Take mobile payments, for instance. Regulators had to draw a line as to the daily limit for these types of transactions. This was done for consumer protection purposes. Only time will tell if the limit is too low or too high or just right but a limit had to be selected to get things started. The Buzz on Blockchain It is hoped that the Governments FSTB and other regulators were making Professor Chan said that while active support of FinTech coupled with it a priority to clarify with the industry blockchain and distributed ledger the Citys highly-international trade and businesses interested in setting up technology seem to hold huge networks, its transparent and open in the City which regulations may apply potential to transform public and market, its clean and law-abiding to their FinTech operations, including private sector activities, the FSTB has society, and its world-class professionals those involving peer-to-peer lending yet to develop any formal regulatory and financial services providers will not and equity crowd funding activities. policy or opinion on it, as it is still in only revolutionise the way Hong Kongs its infancy. While the Government Another crucial step for regulators financial sector operates, but also would like to see more developers will be to bring the current regulatory transform the City into a FinTech hub. developing this type of technology and framework in line with new business Coordinated Regulatory Efforts practices. Professor Chan indicated exploring how it may be applied to the that the FSTB is studying developments financial services industry, he said it is The FSTB is at the centre of in overseas jurisdictions. However, he just too early to tell what Hong Kongs coordinating a variety of efforts among believes that most of the regulatory regulatory position on it will be. different regulatory bodies, including work will be logistical in nature, in that For those unfamiliar, blockchain is encouraging the Hong Kong Monetary it will involve figuring out how to apply the distributed ledger technology that Authority (HKMA), the Securities regulations designed for a physical underpins Bitcoin. As explained by and Futures Commission (SFC) and world to a digital one, as opposed to Steven Norton, blockchain is a data the Office of the Commissioner of introducing major changes in regulatory structure that makes it possible to Insurance to engage in a dialogue with policy. create a digital ledger of transactions the industry. Specifically, Professor Chan indicated that each regulator will One area of concern for regulators and share it among a distributed set up FinTech dedicated platforms to will be the safety and security of network of computers. It uses liaise with the industry to ensure that certain digitised services. While there cryptography to allow each participant the market will balance between market is no need to verify that a person is on the network to manipulate the demand and investors understanding real when a transaction is concluded ledger in a secure way without the and tolerance of risk when introducing face-to-face, he explained, this need for a central authority. Currently, innovative financial products and will likely be an issue when certain more than 40 top financial institutions services. He specifically noted that the transactions can be completed entirely and a growing number of firms 18www.hk-lawyer.org

20 April 2016 COVER STORY across industries have reportedly been increasing the investment quota for experimenting with distributed ledgers Hong Kong under the RMB Qualified as a secure and transparent way to Foreign Institutional Investors (RQFII) digitally track the ownership of assets. Scheme. Other companies are also reportedly Other key milestones that have exploring its viability to track the increased mutual capital market access movement of assets throughout their between Hong Kong and the Mainland supply chains or electronically initiate include the successful implementation and enforce contracts.1 This algorithmic of the Shanghai-Hong Kong Stock technology not only has the power to Connect and the Mutual Recognition transform the financial services industry, but also enhance productivity through of Funds Arrangement. He also noted Professor a wide range of applications in both the that the Government is in an on-going dialogue with Mainland authorities K C Chan GBS JP public and private sectors. Secretary for Financial Services and the regarding the upcoming launch of the Treasury Shenzhen-Hong Kong Stock Connect Hong Kongs RMB Market and potential enhancements to the When asked if there were any additional Professor Chan was the Dean of Shanghai-Hong Kong Stock Connect; developments that he wanted to and that the Government stands ready Business and Management at the discuss, Professor Chans eyes lit up. to implement the programmes as soon Hong Kong University of Science While its not a new story, he said as it receives further instruction from the and Technology (HKUST) before leaning in, Hong Kongs RMB market is Central Government. being appointed Secretary for worth mentioning. Financial Services and the Treasury Message for Solicitors in July 2007. He also spent nine It has been over 10 years since Hong years teaching at Ohio State Kong was given the opportunity to build When we look at the strength of Hong University in the US before joining the RMBs presence and acceptance Kongs financial market, it is strong HKUST. internationally. He noted that most because of the people that comprise of his Bureaus intellectual capital it. The legal sector is of course a key Professor Chan received his and potential has been dedicated to component of our professional sector bachelors degree in economics developing the Citys RMB market since. our financial markets remain strong from Wesleyan University and While London and Singapore trade because of the number of skilled legal his MBA and PhD in finance RMB, Hong Kong is by far the most professionals that are a part of it. from the University of Chicago. important market for RMB, with the He specialised in assets pricing, When we promote Hong Kongs worlds largest pool of RMB liquidity. evaluation of trading strategies and financial market, we are not only With the wide use of RMB speaking about our bankers, we are market efficiency. internationally, Professor Chan indicated also holding out all professionals in the Professor Chan held a number that there will be growing demand for market. So I hope solicitors continue of public service positions before RMB trade settlement, RMB assets and helping us to promote our industries and joining the Government, including related financial services which will drive businesses to their clients, as well as to Chairman of the Consumer Council various types of transactions in Hong new markets, he said optimistically. n and Director of the Hong Kong Kongs offshore market. He indicated Futures Exchange. that the Government will continue to explore ways to open up more channels for the two-way cross-boundary RMB fund flows, including the possibility of 1. Steven Norton, CIO Explainer: What Is Blockchain?, The Wall Street Journal (2 February 2016), available at http://blogs.wsj.com/cio/2016/02/02/cio-explainer-what-is-blockchain/. www.hk-lawyer.org 19

21 April 2016 Cynthia G. Claytor 2016 (FinTech) 20www.hk-lawyer.org

22 April 2016 COVER STORY ( ) () ( ) www.hk-lawyer.org 21

23 April 2016 20 2020 Smart-Space3,000 5 150 (blockchain) (distributed ledger technology) () () (Bitcoin) Steven Norton (peer-to-peer lending) 40 (equity crowd funding) 22www.hk-lawyer.org

24 April 2016 COVER STORY (RQFII) 1 GBS JP 20077 10 9 Wesleyan n 1. Steven Norton, CIO Explainer: What Is Blockchain?, (201622) http://blogs.wsj.com/cio/2016/02/02/cio-explainer-what-is-blockchain/. www.hk-lawyer.org 23

25 April 2016 LAW SOCIETY NEWS Greater China Legal Affairs Committee Annual Brainstorming Session Sixteen members of the Greater China Legal Affairs Committee (GCLAC) gathered on 20 February in Macau for the Annual Brainstorming Session. Members also took the opportunity to meet with representatives of the Macau Bar Association. Members reviewed the achievements of the GCLAC last year and discussed the work direction and areas for improvement in the coming year. GCLAC Chairman Thomas So encouraged members to actively participate in GCLACs events and A group photo of GCLAC members after the Annual Brainstorming Session. activities, so as to promote Hong Kongs legal services to more cities in the Greater China region, strengthen ties with the local legal industry, build up a network and expand the market for members of the Law Society. 220 After the Brainstorming Session, Law Society representatives, including President Stephen Hung and Vice President Thomas So, met with President Jorge Neto Valente and the other representatives of the Macau Bar Association and discussed the details of organising a range of seminars on Hong Kong and Macau laws. Belt and Road Hong Kong Legal and Arbitration Services Seminars Guiyang and Xian On behalf of the Law Society, Mr. Eric Woo, member of the Arbitration Committee, participated in the Belt and Road Hong Kong Legal and Arbitration Services Seminars organised by the Department of Justice on 23 to 25 February in 223 Guiyang and Xian. Mr. Woo spoke on the topic Strategies and planning businesses should 25 use when resolving cross-border trade disputes through international arbitration. Both seminars Mr. Eric Woo spoke on strategy and planning in international arbitration attracted more than 200 local businesses and in the seminars. legal professionals. Attendees were interested in the arbitration services in Hong Kong and were eager to know more from Mr. Woo on subjects such as enforcement of arbitral awards in Hong Kong 200 and the difference between ad hoc arbitration and institutional arbitration. 24www.hk-lawyer.org

26 April 2016 LAW SOCIETY NEWS Director-General, Department of Treaty and Law, Ministry of Foreign Affairs, Visits the Law Society Dr. Xu Hong, Director-General, Department of Treaty and Law of the Ministry of Foreign Affairs, PRC, and Ms. Gu Yingying, Secretary, accompanied by Ms. Zhou Lulu, Director of the Department of Treaty and Law, the Commissioners Office of the Ministry of Foreign Affairs of the PRC in the HKSAR, visited the Law Society on 26 February to get a better understanding of the role of the Law Society and the development of the legal services industry Law Society representatives with the guests after the meeting. in Hong Kong. The guests were received by Vice President Melissa Pang, former President Ambrose Lam, former President Anthony Chow, GCLAC Vice Chairperson Emily Lam and Committee Members 226 Fred Kan and Ronald Kan. Both parties discussed issues such as how Hong Kong legal services could facilitate the internationalisation of businesses and the legal profession in the mainland, as well as the role of Hong Kong lawyers in consolidating the rule of law in Hong Kong. New Year Northeast Mountain Race 2016 On the very first day of 2016, members of the Law Society Distance Running and Hiking Team participated in the New Year Northeast Mountain Race 2016. It was a 20 km plus trail running event inthe northeast of the New Territories. The runners started their strenuous exercise from Hok Tau in Fanling, running around Pat Sin Leng along Lau Shui Heung Country Trail, Hok Tau Reservoir and Nam Chung Road before finishing at the main dam of Plover Cove Reservoir in Tai Po. It was already a challenging run for the first 10 km Members gathered and celebrated the very first day of the year with a challenging yet fun hike. with persistent uphill climbs and downhill drops, 2016 yet it was even more physically demanding when runners had to overcome those steep slopes at 2016 Cloudy Hill and Ping Fung Shan. The last 10 km, 20162016 a relatively less hilly route mixing trails gradually descending to Tai Mei Tuk, was a real test of 20 endurance. Despite the challenges, all members enjoyed running in the mountains and pushing 10 themselves to their limits, as it gave them the 10 chance to appreciate the beauty of our countryside. We thank all members who participated in the event and hope to receive continuous support in future. Frederick Tai Member, Law Society Distance Running Team www.hk-lawyer.org 25

27 April 2016 Golf Team Annual Presentation of Awards The Golf Team Annual Award Presentation Dinner has always been a special occasion for us. Held on 14 January, this years annual dinner was no exception, with team members forging new friendships, renewing old ties and celebrating the Teams achievements in the year just passed. The results of individual awards were announced at the dinner followed by a presentation of trophies. Congratulations to Mr. Kenny Cheung, Mr. Charles Yeung, Ms. Karen Lam and Mr. Kenneth Lee for winning the President's Cup, the Fred Kan & Co. Cup, the Hastings & Co. Cup and the Secretary General's Cup, respectively. Glasses were raised to cheer for their exceptional performances. Besides individual efforts, we also celebrated our team achievement. The Golf Team President Stephen Hung (left) presenting the Presidents repeatedly defeated other professional bodies and captured the first runner-up in the Cup to Mr. Kenny Cheung (right). 2015 Joint Professional Golf Tournament. It was the best result we have ever had in this highly competitive tournament. The evening reached its climax when details of the HUW Cup competition were announced. The HUW Cup is an annual competition founded by our beloved Past President Huen Wong where players split into all-male and female teams to compete for the winning spot. Mr. Dennis Chan and Ms. Karen Lam took up the batons from Mr. Roden Tong and Ms. Rosella Wong as the new team captains. Battle speeches were made and both teams morale went through the roof. The Dinner could not have been successfully concluded without our generous members who contributed the lucky draw prizes. Congratulations to winners of the top lucky draw prize, which was a golf trip to Kunming in March. The night concluded in bursts of laughter and applause. No one left empty-handed. Mr. Charles Yeung (right) received the Fred Kan & Co. Cup We would like to express our heartfelt gratitude to our Captain Mr. Fred Kan and from Mr. Fred Kan, Golf Team Captain (left). Convenor Mr. Roden Tong for their tireless efforts in arranging various events last year. ) We are also thankful to our fellow members, whose participation made our events successful. No doubt, with members shared passion in the game of the little white ball, the Golf Team will see more fun and accomplishments in the year ahead. Emily Kwok Member, Law Society Golf Team 114 Ms. Karen Lam (left), winner of the Hastings & Co. Cup, receiving her award from Ms. Helen Kong (right). 2015 HUWHUW 3 Secretary General Heidi Chu (right) presented the Secretary Generals Cup to Mr. Kenneth Lee (left). 26www.hk-lawyer.org

28 April 2016 COMPETITION LAW Television Broadcasts Ltd v Communications Authority: Implications for the New Competition Ordinance By Kelvin Kwok, Assistant Professor of Law University of Hong Kong Barrister Des Voeux Chambers www.hk-lawyer.org 27

29 April 2016 O n 29 January 2016, the Court of First Instance handed down an important decision on the procedural The no original voice policy, under which artistes and singers cannot use their original voice when (CEIC), to which the CAs decisions may be appealed, is a political and non-judicial body which cannot fulfil the and substantive aspects of competition appearing for other broadcasters. requirement under Art. 10. Besides, the law. Justice Godfrey Lam, sitting in The no promotion policy, possibility to challenge the CAs decision the Court of First Instance, decided which disallows participation in by judicial review does not render the to quash the 2013 decision of the the promotional events of other system constitutional, as the scope of Communication Authority (CA) that broadcasters. challenge is necessarily limited, and Television Broadcasts Limited (TVB) excludes any challenge on the legal or The no Cantonese policy, under had violated the competition provisions factual accuracy of the CAs decision. which artistes and singers cannot in the Broadcasting Ordinance, for which speak Cantonese when appearing The judge dismissed TVBs alternative TVB was fined a sum of HK$900,000 for other broadcasters. argument that the CA ought to have and ordered to rectify its practices. The proved beyond reasonable doubt that judge decided that the CAs decision These practices, which tend to limit TVB had violated the competition should be quashed for procedural other broadcasters access to artistes provisions. Even if TVB were faced unconstitutionality and, alternatively, and singers, were found by the CA with criminal charges under those part of the decision should be quashed to have the purpose and effect of provisions for the purposes of the Hong for the disproportionate remedies harming competition in the television Kong Bill of Rights (which the judge ordered. The judge nonetheless upheld programme service market, contrary disagreed), the applicable standard of the CAs competition law analysis of to the competition provisions in proof would still remain as the ordinary TVBs practices. the Broadcasting Ordinance. TVB civil standard of on the balance of challenged the CAs decision by judicial The Competition Ordinance, which probabilities. The judge confined review, which led to the present is Hong Kongs first cross-sector the Hong Kong Court of Final Appeal decision. competition legislation that came into decision in Koon Wing Yee v Insider full operation on 14 December 2015, has Dealing Tribunal [2008] 3 HKLRD Procedural Unconstitutionality now replaced the competition provisions 372 (regarding the application of the of the CAs Decision in the Broadcasting Ordinance. As the criminal standard to insider dealing first competition case decided after the Justice Lam held that the CAs decision proceedings) to its context, observing full commencement of the Competition should be quashed for procedural that the economic nature of competition Ordinance, the TVB decision is unconstitutionality the legal cases renders the criminal standard important and sheds light on how the framework did not provide TVB with unsuitable for competition proceedings. Competition Tribunal (of which Justice a hearing by an independent and impartial tribunal despite the fact As to how similar issues will be Godfrey Lam is the President) and other that it had its rights and obligations addressed under the Competition courts may decide similar procedural determined in a suit at law, contrary to Ordinance, the following observations issues, analyse competition law issues Art. 10 of the Hong Kong Bill of Rights, can be made: and order remedies under the new Ordinance. which is constitutionally protected The independent and impartial under the Basic Law. requirement under Art. 10: This TVBs Anti-Competitive First, the CA is not independent and is likely to be satisfied by the Practices impartial because it is both a policy- Competition Tribunal which is newly The anti-competitive practices in maker and a competition enforcement established under the Competition question relate to certain contractual body in the broadcasting sector. Any Ordinance, given its independence clauses and policies which TVB had views formed by the CA in fulfilment of from the Government and the imposed against its artistes and singers its policy-making role (such as when Competition Commission (which between 2007 and 2010. They include: the CA advised the Government on is in charge of investigation and liberalisation of the broadcasting sector) enforcement) and its only role as an Exclusive clauses, which restrict adjudicator. regarding the competitive situation in artistes and singers appearances the sector may influence its views on Likely criminal nature of the for other Hong Kong television similar issues in a competition case. conduct rules under the Competition broadcasters. Secondly, the Chief Executive in Council Ordinance: This follows from the fact 28www.hk-lawyer.org

30 April 2016 COMPETITION LAW that, in contrast to the Broadcasting market share by reference to situation could possibly be rectified if Ordinance provisions, the conduct a relevant metric (in this case, the restraints were removed for only rules are broadly applicable to television viewership), provided some of the contracts, such that other business entities in different sectors that relevant factors other than broadcasters could hire the artistes and (not just the broadcasting sector) market share, such as entry barriers singers under those contracts. and offenders may be fined up to and countervailing buyer power, The courts are likely to take a similar 10 percent of their local turnover, are also considered in the overall approach under the Competition which is potentially a much higher assessment. Ordinance in requiring any remedies maximum penalty than that under Market power relates to a firms ordered to be proportionate, in that the Broadcasting Ordinance. ability to increase prices, decrease they should not go beyond what is Standard of proof: Despite the likely output or quality (in this case, necessary to cure the anti-competitive criminal nature of the conduct decreasing the quality of television problem. However, EU authorities (eg, rules, the recent TVB decision programmes), or do other things to Hoffmann-La Roche v Commission would suggest that cases under the boost profits, rather than whether or [1979] ECR 461; Intel v Commission Competition Ordinance would be not the firm has actually done those [2014] 5 CMLR 9) and the Hong Kong decided according to the ordinary things. Guideline on the Second Conduct civil standard of proof. By parity of In evaluating the evidence, the Rule (para. 4.14) would suggest that reasoning, for competition cases CA is entitled to draw sufficiently it is possible to consider exclusive going forward, Koon Wing Yee would compelling inferences from the dealing imposed by a powerful firm as not be binding on the courts and relevant circumstantial evidence a restriction by object under the Second the criminal standard would not be considered in its entirety. Conduct Rule if it serves no purpose appropriate. other than to prevent competition It suffices for the CA to demonstrate from rivals. If the clauses and policies The CAs Competition Law that the practices in question have imposed by TVB are considered to have Analysis was Upheld a potential, likely anti-competitive the purpose (ie, object) of harming effect, as opposed to an actual In upholding the CAs competition competition, it may be an appropriate effect, for the purposes of proving law analysis, Justice Lam clarified the remedy to order TVB to remove all such that they have the effect of harming following legal principles, which are also clauses and policies, since the problem competition in the relevant market. relevant to future cases decided under to be rectified is the anti-competitive the Competition Ordinance: The judge made extensive reference to purpose of each of these clauses and overseas authorities, including EU, UK policies, not simply their (cumulative) The focus is on whether the practices and Australian decisions, in clarifying anti-competitive effect. in question have the purpose or the legal principles above. Since the effect of harming competition in Competition Ordinance is modelled Conclusion the relevant market (in this case, after the competition laws in the EU, In conclusion, Justice Lams recent the television programme service UK and Australia, legal authorities TVB decision has provided welcomed market), instead of where (ie, developed in these jurisdictions are clarifications on important issues of in which market) the practices likely to be of continual relevance to procedure, competition law analysis occurred. future cases concerning the Competition and remedies in competition cases. The It is not necessary for the CA to Ordinance. decision provides helpful guidance on formally define the upstream market how the new Competition Ordinance for the supply of inputs (in this case, Remedies against TVB were may operate in future cases. n the services of artistes and singers) Disproportionate if the issue is whether the practices The judge accepted that it was have an anti-competitive purpose disproportionate for the CA to order TVB or effect in the downstream output to eliminate all anti-competitive clauses market (in this case, the television and policies for all types of artiste or programme service market). singer contracts, and that such an order In assessing market power, the should be set aside in any event. In CA is entitled to measure a firms the judges view, the anti-competitive www.hk-lawyer.org 29

31 April 2016 Television Broadcasts Ltd v Communications Authority: By Des Voeux 2 016129 TVB ()2013 TVB TVB (TVB) 20072010 900,000 TVB TVB TVB / 10( TVB ) 20151214 ( ) () TVB (CEIC) 30www.hk-lawyer.org

32 April 2016 COMPETITION LAW TVB 10 Koon Wing Yee ( TVB ) TVB TVB TVB TVB () () Koon Wing Yee v Insider () Dealing Tribunal [2008] 3 HKLRD 372 ( () ) ( ( ) Hoffmann-La Roche v Commission [1979] ECR 461Intel v Commission [2014] 5 CMLR 9) ( (4.14) ) 1 0 ( TVB ( ) ) TVB () () ( TVB ) n www.hk-lawyer.org 31

33 April 2016 Statutory Adjudication Schemes in the UK and under Hong Kongs Proposed Legislation By Kaiser Leung, Barrister Des Voeux Chambers 32www.hk-lawyer.org

34 April 2016 CONSTRUCTION F ollowing the birth of a statutory adjudication scheme in the UK under the Housing Grants, Construction and Appellant commenced and succeeded in two adjudications against the Respondents in respect of two sets of Regeneration Act 1996 (the 1996 UK Act), interim payments due. By January 2014, on 1 June 2015, the Government published the contract had come to an end. a consultation document on Hong Kongs In August 2014, the Appellant sent to the proposed Security of Payment Legislation Respondents his final account showing (SOPL) for the construction industry, that 397,912 plus VAT was due to the which includes the implementation of a Appellant. The Appellant sent to the similar statutory adjudication scheme (the Respondents a notice of adjudication Consultation Document). claiming the full amounts shown as The purpose of this article is to consider due in the Appellants final account (the an English decision, Harding (t/a Harding Third Adjudication). In response, the Contractors) v Paice [2015] EWCA Civ Respondents sent to the Appellant a Pay 1231, on the operation of the statutory Less notice. adjudication scheme under the 1996 UK In the Third Adjudication, the Appellant Act and its potential implications on the claimed two alternative reliefs:- adjudication scheme under the proposed A decision that the Respondents, SOPL. having failed to serve any effective The UK Regime Pay Less notice, were obliged to pay 397,912 to the Appellant; The relevant statutory provision in this A decision that 397,912 was the sum case is para. 9(2) of Part I of the Schedule properly due to the Appellant. to the Scheme for Construction Contracts (England & Wales) Regulations 1998 (para. The adjudicator held that the 9(2)), which provides that an adjudicator Respondents Pay Less notice was invalid must resign where the dispute is the same and they were required to pay 397,912 or substantially the same as one which has to the Appellant. It was not necessary to previously been referred to adjudication decide on the issue of valuation. and a decision has been taken in that On 14 October 2014, the Respondents adjudication. served an adjudication notice, seeking Further, the 1996 UK Act provides that after from the adjudicator decisions on the a construction contractor has given notice values of the contract, variations, loss to his employer of a sum that it considers of profit, and abatement and/or set due, the employer may give a Pay Less off for defective works. (the Fourth notice, namely, indicating that the employer Adjudication). intends to pay less than the amount applied On 21 October 2014, the Appellant for by the contractor. If no valid Pay Less claimed injunctions and declarations notice is given, the employer has to pay the against the Respondents to stop the notified sum on or before the final payment Fourth Adjudication from going forward date and is precluded from disputing in on the basis that all the issues raised in adjudication that a payment demanded by the Fourth Adjudication had been decided the contractor is due (see ss. 110A & 111, 1996 in the Third Adjudication. This was later UK Act). dismissed by the judge. REUTERS/Yves Herman The Respondents then proceeded with Factual Background of Harding the Fourth Adjudication and succeeded, In this case, the employers were the but were unable to enforce the decision Respondents and the contractor was the due to the adjudicators apparent bias. Appellant. The Respondents intend to bring a fifth In March 2013, the parties entered into adjudication before a different adjudicator a building contract. In October 2013, the covering the same grounds. www.hk-lawyer.org 33

35 April 2016 The Appeal argument. They took the view that in or ignored, the receiving party will be the Third Adjudication, the Appellant entitled to pursue adjudication (see This case is an appeal against the referred to the adjudicator a dispute Consultation Document, p. 20). judgment dismissing the Appellants involving two alternative issues, namely a More importantly, under the proposed claims for injunctions and declarations on contractual one on the validity of the Pay SOPL, the paying parties who fail to serve the following grounds:- Less notice and a valuation one. Since a Payment Response within 30 calendar the judge erred in his construction of no valuation exercise was carried out in days after the service of a Payment Claim, para. 9(2); and the Third Adjudication, the Respondents will not be automatically liable to pay the the judge erred in his analysis of were entitled to refer that dispute full amount of a Payment Claim, but they the scope and effect of the third for resolution in the abortive Fourth will not be able to raise any set off against adjudication decision. Adjudication. amounts properly due against a Payment Paragraph 9(2) Claim (see Consultation Document, The Judgment and the p. 22). Therefore, assuming the claiming The judgment below interpreted Position under the Proposed party pursues adjudication, it will remain para. 9(2) as being only applicable where a dispute previously referred to SOPL open to the payer to raise liability and This judgment dealt with two issues quantum defences in the adjudication. adjudication had actually been decided by the adjudicator, with which the Court under the UK adjudication scheme. First, The rationale of the proposal is set out in of Appeal agreed. the undecided and related disputes, the Consultation Document as follows: although previously referred to in the If a failure to serve a Payment The Court of Appeal held that in earlier adjudication, may be referred to Response on time led to the full considering the question of whether the again in a later adjudication. amount of a Payment Claim becoming dispute is the same or substantially the same as one which has previously been Second and importantly, despite the due, it could lead to harsh results for referred to adjudication and a decision statutory Pay Less notice provision, paying parties including having to pay has been taken in that adjudication, one a previous adjudication decision on out against incorrectly calculated or does not look at the disputes referred the effect of an invalid payment notice inflated claims purely as a result of to the first adjudicator in isolation, does not necessarily bar the referral of missing an administrative deadline. but must also look at what the first the issue of valuation to a subsequent When claims are taken to adjudication, adjudicator actually decided. Ultimately, adjudication even if it covers the same it will always be open to adjudicators it is what the first adjudicator decided payment. to consider arguments as to the that determines how much remains The effect of this judgment appears to entitlement of the claiming party to available for consideration by the second be consistent with the approach taken the amounts claimed. This should adjudicator. by the proposed SOPL, namely the reduce the risk of paying parties emphasis on substance rather than having to pay out sums to which there This ground of appeal was accordingly on form in relation to entitlement to is no entitlement at all. rejected. payment. (See Consultation Document, p. 23). The Scope and Effect of the Unlike the 1996 UK Act, the proposed The refusal of the English Court of Appeal Third Adjudication Decision SOPL does not contain similar Pay Less to shut out the employers referral of the The Appellant argued that the dispute notice provisions. The SOPL proposes substantive issue of valuation by reason referred in both the Third and Fourth to provide parties who are entitled of an earlier adjudication decision on Adjudications was the same or at least to claim a payment under a contract administrative grounds appears to be substantially the same, namely the with a right to claim the payment by a move towards achieving fairer results issue of the scope of the contractors means of a statutory payment claim consistent with what is aimed at under entitlement under the relevant clauses (Payment Claim). Paying parties may the proposed SOPL. that dealt with the post-termination serve a response to a Payment Claim The proposed SOPL not only introduces final account. The Appellant argued by a payment response, identifying the the adjudication system to achieve even though the adjudicator reached amounts of the Payment Claim accepted quicker dispute resolutions, it also seeks his decision by relying on the Pay Less as due, the amounts disputed and any to ensure fairer results by not imposing notice point rather than a bottom-up amounts intended to be set off against sanctions for failure to serve Payment valuation, the dispute had been effectively amounts due (Payment Response) Response and by allowing the paying determined. (see Consultation Document, p. 17). parties the opportunity to defend their The Court of Appeal rejected this Where the Payment Claims are disputed cases substantively in adjudications. n 34www.hk-lawyer.org

36 April 2016 CONSTRUCTION Des Voeux Housing Grants, Construction and Regeneration Act 1996(1996 )2015 61 (SOPL)( The Scheme for Construction Contracts ) (England & Wales) Regulations 1998 9(2)( 9(2)) ( 1996 110A111) Harding (t/a Harding Contractors) v Paice Harding [2015] EWCA Civ 1231 1996 1996 www.hk-lawyer.org 35

37 April 2016 20133 20141021 201310 20141 ( 20148 ) 397,912 () - ( - ) 9(2) 397,912 397,912 9(2) 397,912 9(2) 20141014 ( ) ( ) ( ) 1996 36www.hk-lawyer.org

38 April 2016 CONSTRUCTION (23) (22) () () (17) ( 20) n 30 EXPERTS IN CONSTRUCTION Construction expert opinions on: To discuss your project requirements, please contact James Longbottom, Quantum Patrick ONeill or David Longbottom Planning, Programming & Delay Analysis on (852) 2234 5228 Engineering Partners in Alternative Dispute Resolution 1711 Citicorp Centre, 18 Whitfield Road, North Point, Hong Kong t: (852) 2234 5228 f: (852) 2234 6228 e: [email protected] www.adrpartnership.com www.hk-lawyer.org 37

39 April 2016 Pyrrho Investments: English Predictive Coding Case Strikes New Balance in E-Discovery By Sebastian Ko, Director Epiq Systems, Hong Kong Michael Yuen, Manager Epiq Systems, Hong Kong 38www.hk-lawyer.org

40 April 2016 DISPUTE RESOLUTION O n 16 February 2016, the English High Court sent a clear signal approving the use of predictive coding technology Secondly, it selects a sample document set for manual categorisation by a lawyer familiar with the issues. The in electronic discovery (e-discovery). software categorises a new sample set by In Pyrrho Investments Ltd & Anor v MWB extrapolating logic from the human input. Property Limited & Ors [2016] EWHC 256 Thirdly, the lawyer would check the (Ch) (Pyrrho), Master Matthews provided softwares decisions to see if it has attained directions on predictive coding and the an acceptable level of accuracy (the suitable conditions in which it would be tolerance level), and correct any erroneous applied to expedite disclosure processes. categorisation. Predictive coding software has been available Fourthly, this training process would be commercially for several years to meet the repeated until the tolerance level when exponential growth in documents handled in the software would then categorise the high volume, complex e-discovery. However, remaining documents in its database. its slow adoption outside the US has been attributed to a lack of judicial guidance on the Summary of Pyrrho use of the technology in litigation. Given the The underlying action in Pyrrho relates to English influence on Hong Kongs discovery breaches of fiduciary duties by directors, rules and e-discovery practice direction which led to interlocutory proceedings on (Pilot Scheme for Discovery and Provision the discovery of back-up tapes controlled by of Electronically Stored Documents in Cases one of the claimants. The tapes contained in the Commercial List, Practice Direction over 17.6 million electronic files from four of SL1.2), this decision should bolster Hong the defendants email accounts. The volume Kong lawyers confidence in using predictive is reduced to about 3.1 million files using coding and similar technologies in dispute an electronic de-duplication technique. The resolution. parties agreed to employ predictive coding to expedite the disclosure of 3.1 million files Predictive Coding Explained and reduce the costs of manual document Predictive coding sorts electronic documents review, and sought the courts approval for the by using machine-learning algorithms, agreement. identifying and prioritising documents responsive to certain issues of a case for In endorsing the use of predictive coding, human review. It is a type of technology- Master Matthews enumerated ten guiding assisted review (TAR) that significantly factors for his decision; the substance of which reduces review time and the number of non- is distilled as follows: responsive documents requiring review (the the predictive coding methodology makes court in Pyrrho appears to refer to predictive the document review more consistent, and coding and TAR interchangeably, which is as accurate as, if not more accurate than, is not correct. The former concept is a subset manual review alone or manual review of the latter). This results in substantial cost combined with keyword searches; savings and reduction of human error. the number of potential documents for Predictive coding software learns review is huge, and the costs of reviewing iteratively, adding to its artificial intelligence them manually would be enormous; programming. Various predictive coding the costs of using predictive coding are products on the market have different proportionate to the value of the claim; learning strategies and workflows, one there is sufficient time to consider version of which is referenced in Pyrrho contingent search methods should the (paras. 1724). It is broken down as follows: use of predictive coding fail to generate Firstly, it scans the documents in its satisfactory results; and database and classifies them according to the parties agreed on the use of predictive common concepts and phrases. coding. www.hk-lawyer.org 39

41 April 2016 Legal Analysis in the Case Moore & Ors v Publicis Groupe SA & might be needed after predictive Anor 11 Civ 1279 (ALC)(AJP) found coding software has done its best, The reasoning of Pyrrho focuses on: (a) that the use of predictive coding was and predictive coding would not always the overriding objectives and the criteria more appropriate than manual review guarantee low costs. One of the factors for a reasonable search in disclosures with keyword searches in that case, for endorsing predictive coding is that under the English Civil Procedure Rules while predictive coding would entail there would be sufficient time to rectify 1998 (CPR), respectively CPR 1.1 and lower costs and inconsistencies. The the search if predictive coding generated 31.7; and (b) Practice Direction 31B (the plaintiffs raised several issues, including unsatisfactory results. The Pyrrho English Practice Direction on Disclosure whether predictive coding would allow decision also indicates the importance of of Electronic Documents). Among the defendants lawyers to certify party consensus in the use of predictive other things, CPR 1.1(1) emphasises discovery as complete when it was not; coding, as litigants need to consider that the court must be able to deal whether it was contrary to the Federal and agree to search parameters and with cases justly and at proportionate Rules of Evidence; and whether it was other methodological considerations cost. CPR 31.7(2) also provides factors impossible to assess whether predictive before deploying the technology. Indeed, for determining the reasonableness of coding would produce accurate results. whether predictive coding is appropriate a search. These factors are: number Magistrate Judge Peck dismissed these in a particular case may depend of documents; nature and complexity issues, and the ultimate decision was on how it is used. An English court of proceedings; ease and expense of affirmed on appeal. The Irish High Court might therefore be reluctant to grant retrieving any particular document; in Irish Bank Resolution Corporation a unilateral request to use predictive and significance of any document Ltd v Quinn [2015] IEHC 175 held that coding. likely to be located during the search. predictive coding is at least as accurate Practice Direction 31B elaborates on It is likely that Hong Kong courts would as, and, probably more accurate these factors at paragraphs 21(3)(c) adopt Pyrrho should a similar request than, the manual or linear method in and 21(3)(e), and states that keyword for predictive coding arise in Hong identifying relevant documents in large searches or other automated methods Kong proceedings. Practice Direction data sets, and that TAR was more of searching may be reasonable if a SL1.2 is not only based on the English expeditious and economical than full review of each and every document Practice Direction 31B, but also goes manual review. would be unreasonable. In Goodale v further to spell out technology Ministry of Justice [2009] EWHC B41 Impact of the Decision assisted reviews in its provisions on (QB), Master Whitaker only referred to other automated searches The Pyrrho decision represents a TAR software in passing. (paras. 9(3)(b) & 24). Nonetheless, cautious and balanced approach to Practice Direction SL1.2 currently While the CPR and Practice Direction incorporate predictive coding techniques provides a pilot scheme that is limited to 31B do not prohibit the use of predictive into existing civil procedures, and offers cases on the commercial list. Moreover, coding (although they do not expressly guidance on the consideration of TAR the Court of First Instance in Chinacast provided for it), Master Matthews in case management proceedings. It Education Corporation & Ors v Chan & found that there was no English legal shows the English courts acceptance Ors [2014] 5 HKC 277 confirmed that authority on when or how it should of an evolving concept of reasonable requests for e-discovery under O. 24 be deployed and how the principle search that embraces advanced of the Rules of High Court (Cap. 4A) of proportionality should apply to it. software technology. In particular, it (RHC) must be proportionate, The Pyrrho decision also notes that acknowledges that predictive coding is at economical and relevant (the case finding search methods with suitable least as accurate as, if not more accurate than, the traditional manual review with preceded Practice Direction SL1.2, which scope and quality could have a much keyword search. The decision notes that became operational on 1 September greater impact on the time and costs predictive coding could significantly 2014). This follows the underlying of e-discovery than hardcopy discovery. reduce inconsistencies and costs. objectives of the RHC (O. 1A, r. 1), This is because extensive e-discovery which provides for increasing cost- exercises tend to involve battalions However, the decision does not effectiveness and promoting a sense of lawyers and paralegals reviewing provide litigants carte blanche use of reasonable proportion and procedural tens to hundreds of thousands of of predictive coding technology in economy. English and Hong Kong documents. discovery. Predictive coding has civil procedures share many points Master Matthews relied on US some shortcomings and is not always of compatibility, and provide fertile and Irish judgments for persuasive the proper e-discovery tool. Master legal environments to foster the use of guidance. The US District Court in Matthews noted that manual review predictive coding. 40www.hk-lawyer.org

42 April 2016 DISPUTE RESOLUTION Pyrrho Investments Sebastian Ko Conclusion Michael Yuen Increasingly, litigants cannot cope with the sheer document volume of massive 2 016216 ( e-discovery exercises and the associated time and costs using traditional search and review techniques. The Pyrrho (e-discovery) courts endorsement of predictive (predictive coding)Pyr- SL1.2) coding is timely and adds much-needed rho Investments Ltd & Anor v MWB Prop- momentum to the global growth of TAR. erty Limited & Ors [2016] EWHC 256 The judicial guidance offers comfort to (Ch) (Pyrrho)Master lawyers conducting complex cases, and Matthews encourages the use of automated search technologies in litigation. What remains to be seen is how the legal community will adapt its practices and workflows to leverage use of such technologies in more efficient and effective ways. Overall, Pyrrho is welcome news for Hong Kong where external and in-house legal teams are generally smaller than (TAR) their counterparts in the US and the UK and have to do more with less. n ( www.hk-lawyer.org 41

43 April 2016 Pyrrho 10 31B () Master Matthews ) Pyrrho () Pyrrho (1724) Master Matthews Moore & Ors v Publicis Groupe SA & Anor 11 Civ 1279 (ALC)(AJP) Pyrrho(a) 1998( ) 1.1 ( 31.7(b)31B ) () 1.1 Magistrate Judge Peck Pyrrho 31.7(2) Pyrrho Irish Bank Resolution Corporation Ltd v Quinn [2015] IEHC 175 1760 31B 21(3)(c) 21(3)(e) () 310 310 Master Pyrrho WhitakerGoodale v Ministry of Justice [2009] EWHC B41 (QB) Master Matthews 42www.hk-lawyer.org

44 April 2016 DISPUTE RESOLUTION ( ) Pyrrho SL1.2 31B Pyrrho (9(3)(b)24 Master )SL1.2 Matthews Chinacast Education Corpora- tion & Ors v Chan & Ors [2014] 5 HKC 277 (4A)(RHC)24 () Pyrrho ( Pyrrho 201491 SL1.2) n ( 1A1) www.hk-lawyer.org 43

45 April 2016 Why Cybersecurity Needs In-House Counsel By Dmitri Hubbard, Esq, Regional Vice President Xerox Legal Business Services 44www.hk-lawyer.org

46 April 2016 IN-HOUSE N obody is immune to cyber threats even former Hong Kong security minister Regina Ip Lau Suk-yee fell victim to Industry collaboration and contingency planning: Organisations should work together and with the authorities to share hackers last year when she opened an e-mail and gather intelligence on threats and attachment and enabled the hackers to pilfer test their incident response and business HK$504,000 from her account. As the variety continuity plans. This way, they are of data sources and cyber threats proliferate, prepared to respond to and communicate a coordinated effort beyond information about data breaches. technology departments is in order. Regular independent assessment and Cyber threats pose an immense risk to tests: Organisations should employ staff organisations and one of their most valuable or retain vendors that can objectively assets information. Data breaches to assess cybersecurity readiness. personally identifiable information, non- The HKMA has stated it expects covered public information and other sensitive client entities to document their progress in and employee data can have material and strengthening their cybersecurity controls broad-ranging consequences. These may and may request organisations to produce include internal and regulatory investigations, evidence of them. The guidance declines shareholder litigation, payments to affected to adopt a particular benchmark, but it consumers or employees, and sanctions for does recommend a series of international privacy violations. standards and examples of preventive, Although IT departments traditionally have detective and contingency controls that taken the lead in implementing security organisations can use as a model. measures, cybersecurity is increasingly The HKMA guidelines directly implicate a business and legal problem due to the local rules governing data privacy that apply varying degrees of susceptibility. As a result, to all businesses. Hong Kongs Personal in-house counsel are taking a more active role Data (Privacy) Ordinance (PDPO) protects in guiding their organisations response to the individuals personal data from, among other cybersecurity crisis. things, unauthorised or accidental access, processing, erasure, loss, or use. Violations of The Cybersecurity and Data the law can result in a fine of HK$50,000 as Privacy Landscape in Hong Kong well as imprisonment. Recent developments in cybersecurity and Counsel have taken on the responsibility of data privacy in Hong Kong recommend reviewing and understanding these regulatory greater involvement by corporate counsel. For developments. They have also assumed a example, on 15 September 2015, the Hong leading role in translating them into a viable Kong Monetary Authority (HKMA) issued action plan to defend their employers digital guidance on cybersecurity risk management assets. to authorised institutions, instructing leadership to take a four-pronged approach Ten Steps Counsel Have Taken to to protecting data: Protect their Organisations Data Risk ownership and management Although counsel are critical to ensuring accountability: Organisations should that their organisations have a 360-degree appoint someone to oversee risk view of applicable legal standards and management and establish lines of understand the implications of risk, their role accountability to senior leadership. no longer stops there. Once counsel makes Periodic evaluations and monitoring of the organisation aware of the cybersecurity cybersecurity controls: Organisations and privacy landscape, many have taken the should regularly evaluate the effectiveness lead and designed plans that address threats of their cybersecurity controls, assess any as part of an enterprise risk management gaps and plug them as necessary. programme. To protect data through its www.hk-lawyer.org 45

47 April 2016 lifecycle, they have adopted the following 4. Ongoing Risk Assessment ISO 27001 certification, which consists of foundational cybersecurity protocols: Because the vigilance of a companys a series of 114 controls such as physical countermeasures will be at issue if security measures, firewalls, data 1. A Security-Conscious Culture a cyber breach occurs, counsel have encryption protocols, monitoring and All employees must understand disaster recovery plans. While ISO 27001 continued to stay abreast of applicable that cybersecurity is not simply an IT compliance may not always be sufficient data protection and breach notification domain; it requires the cooperation of to deal with advanced persistent laws, which serve as a guide when they everyone who touches the network. threats (APTs), using established periodically examine the organisations Countermeasures to cyber threats security protocols such as those used risk assessment protocols. The risk are only as effective as the humans in Tier-3 data centres may help ensure assessment protocols created by who employ them. All the security a minimum base line for protection, informed counsel require regular measures in the world cannot protect especially for sensitive data. network, system, and computer audits data if employees are susceptible to and continuous monitoring for intrusions. 7. Data Access Restrictions spear phishing attacks through spoofed Given data privacy concerns, such e-mails or use weak passwords that are Though external threats receive most policies also require the organisation simple to crack. of the attention, internal threats can to notify employees of the potential Counsel have required that the pose significant risks, whether from for monitoring, setting an appropriate organisation provides at least annual employees unintentional lapses to expectation of privacy. training on emerging threats, regulatory schemes designed to sabotage the requirements, corporate policies, and 5. Use of Analytics to Isolate Threats organisation or engage in malicious security best practices, often working in and Protect Sensitive Data activities. Knowledgeable in-house legal conjunction with the chief data security counsel have created cross-functional Data analytics can be useful in identifying officer and others to oversee the training disciplines within the organisation to potential vulnerabilities and irregular and risk prevention programme. ensure that users have access to only the patterns that may indicate an attack. data they need to perform their duties, Continuous auditing and monitoring 2. A Digital Asset Inventory and that multiple levels of approval technologies can detect fraud and other Counsel have collaborated with IT to are required for access to sensitive risks within structured financial data. review the organisations inventory of information. But with the rise of so many sources of networks, hardware, software, databases unstructured data, such as e-mail, chat 8. e-Discovery Review Tools with and servers. Additionally, they have applications and social media, advanced Strong Security Features worked with the IT team to maintain a tools are required to identify threats. When collecting and transferring data current data map of all digital assets By partnering with data scientists and for review in e-Discovery, counsel have across business units, human resources, e-discovery specialists, organisations selected document review platforms accounting and audit teams. have leveraged advanced analytics to that protect data on several fronts. 3. Protection of the Crown Jewels flag potentially risky communications These include features that allow Corporate counsel have also taken and trigger human surveillance, avoiding administrators to set security at both the steps to understand corporate data security risks before they happen. application and user level; automated and classify it according to its priority 6. Supply Chain Risk Management data detection tools that can flag and potential risks. Armed with this sensitive data that matches certain Legal counsel increasingly review all knowledge, organisations have prepared patterns in documents, such as employee contracts with third parties that process appropriate countermeasures. While identification numbers, phone numbers, data, including cloud providers and it is not possible to safeguard every or account numbers; and automated byte of data or block every potential e-Discovery vendors, to verify that redaction tools that can also prevent the network access point, counsel have adequate security controls and breach disclosure of sensitive information. created policies that ensure that the remedies are in place. Indeed, the most sensitive data assets are protected. HKMA requires businesses to validate 9. Incident Response Plan From trade secrets to protected health third-party providers adequate risk Breaches are inevitable, and pro- information and financial data, the most management frameworks and to monitor active counsel have created policies in sensitive data assets are proactively their vendors performance. Evidence of anticipation of such to respond to them flagged and receive the highest possible adequate security standards includes when they occur. A written plan can protection. recognised certifications. These include facilitate a consistent, rapid response, 46www.hk-lawyer.org

48 April 2016 IN-HOUSE while testing the plan can identify gaps that may require third-party assistance, such as public relations or remediation experts. It can also demonstrate a good faith effort to comply with applicable laws and regulations. In-house counsel have taken the lead in determining when to escalate issues, when to disclose breaches, what information to share with peers and regulators, and what investigations should be protected by the attorney-client privilege. 10. Cyber Insurance Considerations Insurance can lessen the financial ramifications of a breach. Organisations have chosen policies that provide coverage for the results of breaches, such as the costs of investigations, notice to affected victims, public relations and credit monitoring. Whats Next for Corporate Counsel? The role of corporate counsel is rapidly Dmitri Hubbard evolving. With the shifting cyber threat and regulatory landscape, corporate counsel are taking an active role by offering oversight, marshalling resources, and serving as a bridge between IT and key stakeholders. By actively managing the decision-making throughout the risk assessment and compliance process, 504,000 counsel are preparing their organisations to detect risk and respond immediately when threats arise. The future will be determined by how local counsel react to such early warning signs of trouble. n Xerox Legal Business Services is not authorised to practice law, and neither ()2015915 offers legal advice nor provides legal services in any jurisdiction. The services offered by Xerox are limited to the non-legal, administrative aspects of document review and discovery projects. Xerox provides such services solely at the direction and under the supervision of its clients authorised legal counsel. www.hk-lawyer.org 47

49 April 2016 1. 4. 5. () ()( ) 2. ( 50,000 ) 3. 10 6. ( ) 48www.hk-lawyer.org

50 April 2016 IN-HOUSE ( ISO 27001 ) 114 ISO 27001 (Advanced Persistent Threat,APT) ( (Tier-3) 10. ) ( ) 7. 8. n Xerox Legal Business Services ( ) Xerox 9. Xerox www.hk-lawyer.org 49

51 April 2016 INDUSTRY INSIGHTS CIVIL PROCEDURE Why is this in the news? tools (including, predictive coding) but it E-discovery is nothing new in civil is only a protocol. E-Discovery and Predictive litigation. Practice Direction SL1.2 (Pilot How is this relevant in Hong Kong? Coding Humans and Scheme for Discovery and Provision of Computers The good news in Hong Kong is that Electronically Stored Documents in Cases Practice Direction SL1.2 contemplates the in the Commercial List) came into effect What is Predictive Coding? use of technology assisted review (for in Hong Kong in September 2014 (see Predictive coding refers to the review example, see paras. 9(3) and 24). Hong Industry Insights E-discovery Update, of electronically stored documents by Kongs Pilot Scheme came into effect July 2014 and E-discovery Prep 101, computer software using algorithms well after those in other common law September 2014). (ie, computerised instructions based jurisdictions such as England & Wales, on an initial review by case handlers of However, outside of the United States, Singapore and Australia. However, the a representative sample of potentially there are few cases dealing with the above-mentioned English and Irish cases disclosable documents). Predictive coding extent to which it is permissible to are helpful reference points in order to follows an initial application of search conduct e-discovery (or disclosure) understand what predictive coding is terms to all electronic documents in a through the use of computer and how it works. They will also be useful partys possession. programmes. One such recent case is authorities in the event of a dispute as Pyrrho Investments Ltd & Anor v MWB to the use or application of technology The computer software grades Property Ltd & Ors [2016] EWHC 256 (Ch), assisted review in a commercial dispute in documents according to a percentage thought to be the first English judgment Hong Kong given that the Pilot Scheme score indicating (for example) their endorsing the use of predictive coding in remains a work in progress. These cases relevance to the issues in the dispute. an e-disclosure exercise. The judgment emphasise the need for engagement The lawyers and document reviewers approves of relevant Irish case law; Irish between the parties lawyers and have to train the computer software so Bank Resolution Corp Ltd & Ors v Quinn proportionality (in saving time and costs). that it can identify documents according & Ors [2015] IEHC 175 (a lucid judgment One would expect the Hong Kong courts to designated issues, relevance and that in turn refers to relevant case law in to apply similar principles. privilege. Predictive coding is more than the United States). keyword searching or data sampling Some Takeaway Points.* and it forms the basis of how the In Pyrrho Investments Ltd & Anor v MWB E-discovery is not for the faint-hearted. electronic search will be conducted. Property Ltd & Ors, the parties sought Predictive coding and similar tools are the English courts approval to use The phrase predictive coding is used not a panacea for all the difficulties that predictive coding in a dispute involving a interchangeably with computer assisted come with retrieval of a large amount large amount of documents, because the review or technology assisted review of electronic documents. For example, relevant e-disclosure rules and practice (although, predictive coding can be some electronic files cannot be read directions do not explicitly provide for more accurately described as a type of by the computer softwares algorithm. its use (although, they do refer to the technology assisted review). Such tools are also reliant on human use of automated search techniques). In In large-scale, document-heavy disputes, intelligence, particularly during the early England & Wales, the Technology and the use of predictive coding should save stages of an e-discovery exercise and the Construction Court eDisclosure Protocol considerable time and costs. issues in a dispute can change; therefore, does provide for computer assisted review the electronic tools used need to be kept 50www.hk-lawyer.org

52 April 2016 INDUSTRY INSIGHTS under review by the senior case handling ( lawyer(s). E-discovery will often require outsourced expertise. Lawyers are not ) experts, although they may have internal litigation support functions. Their clients at the outset also need to ascertain SL1.2 who knows where and how electronic ( documents are or were stored at the material time and who can explain this in 9(3)24) everyday language to the lawyers. Only ( SL1.2( then can an assessment of the volume ) and location of electronic documents )20149 be made and the retrieval and search process begin. ( 20147 20149 - David Smyth and Warren Ganesh ) (Smyth & Co in association with RPC) with Sarah Pearson (RPC) * Any e-discovery exercise will usually benefit () from the input of one or more tech savvy trainees or paralegals (hence, the third Pyrrho Investments Ltd & Anor v MWB mentioned contributor). Bilingual skills are also often helpful in Hong Kong. A Property Ltd & Ors [2016] EWHC 256 useful source of reference is the Technology (Ch) * and Construction Solicitors Association (TeCSA) website (http://www.tecsa.org. uk/e-disclosure). Also see Hong Kong Civil Procedure (White Book) Special Release 2016 (by Val Chow, Barrister, Temple Chambers) on Irish Bank Resolution Corp Ltd & Ors the Pilot Scheme in Hong Kong. v Quinn & Ors [2015] IEHC 175( ) Pyrrho Investments Ltd & Anor v MWB Property Ltd & Ors ( ( ) ) () www.hk-lawyer.org 51

53 April 2016 employers do not act independently in deciding whether to include a non- compete clause. Employers must not share or agree with competitors the terms and conditions of employment () contracts. In addition, non-compete clauses may - Warren Ganesh(Smyth & breach the Ordinance if they relate to an Co RPC)Sarah Pearson(RPC) expertise which is in very limited supply. 20151214 This is likely to be of particular concern if (619)() * the employer has a substantial degree of 750 market power in a market. () Collective Bargaining Technology and Construction Solicitors' Association(TeCSA)(http://www. The Commission has previously advised tecsa.org.uk/e-disclosure) Hong that trade unions may continue to Kong Civil Procedure ("White Book") Special act on behalf of their members in Release 2016(Temple Chambers collective bargaining with employers. ) Arrangements with respect to employees salaries and conditions of work agreed during collective bargaining COMPETITION LAW fall outside the scope of the law, according to the Commissions Guideline Competition Commission on the First Conduct Rule. Addresses Employment Contract Concerns Exclusivity Clauses in Employment Contracts The Competition Commission has Exclusivity clauses in employment published new Frequently Asked Questions that provide insight contracts may breach the Ordinance into whether non-compete clauses in some circumstances. In Television in employment contracts breach Broadcasts Limited v Communications competition law. Authority and Anor [2016] HKEC 238, the Court of First Instance agreed The FAQs answer common questions with the Communications Authoritys received by the Commission since the assessment that Television Broadcasts Competition Ordinance (Cap. 619) came Limiteds (TVB) exclusivity clauses were into full effect on 14 December 2015. The anti-competitive. The clauses imposed Commission said it received around 750 restraints on the ability of artists to work enquiries and complaints in the first two months of the laws operation. for rivals. This denied TVBs rivals access to 90 percent of the singers in Hong Non-Compete Clauses in Kong. The Court ruled that the clauses Employment Contracts were an abuse of TVBs market power. Many employment contracts restrict Television Broadcasts The Commissions FAQs supplement an employee from joining competing Limited v Communications Authority and guidelines issued by the Commission companies after termination of the Anor [2016] HKEC 238 in July 2015 on the application of the contact. Non-compete clauses are Ordinance. unlikely to breach the Ordinance unless () they are of an unduly long duration, - Neil Carabine, James Wilkinson and according to the Commission. Matthew Howlett, King & Wood Mallesons Competition law concerns may arise if 52www.hk-lawyer.org

54 April 2016 INDUSTRY INSIGHTS the judges findings as to their agreement that they had provided the purchase to cross-hold the flats was that each monies for the leased flats could not 20157 enjoyed a beneficial interest in the stand, it erred in applying the proviso. flat registered in the name of the other That is, in the absence of any direct [Appellant] and his wife. evidence, the Court of Appeal drew - Neil CarabineJames Wilkinson the inference that the Appellants had Matthew Howlett On review by the Court of Final Appeal, it expressly agreed to hold the properties on was noted that the test for the application trust for each other, thereby giving each of the proviso is demanding whether of them a beneficial interest in the flats, a hypothetical reasonable jury, properly CRIMINAL PROCEDURE making their claims for PTA dishonest. instructed, would on the evidence without The CFA found this inference to be Application of the Proviso doubt convict or would inevitably come inherently implausible, as none of the to the same conclusion as was stated In HKSAR v Mak Chai Kwong & Tsang matters in evidence were capable of in Kissel v HKSAR (2010) 13 HKCFAR 27 King man, the Appellants were convicted sustaining it. There was therefore no at para. 270. The requirement of proof by a District Court Judge of conspiring basis for applying the proviso and the beyond reasonable doubt can be satisfied to defraud the Government under convictions of the appellants were by drawing an inference of fact, but such common law, and using documents quashed. an inference must be a compelling one as agents with intent to deceive their principal under s. 9(3) of the Prevention (and the only one) that no reasonable Take-Aways of Bribery Ordinance. The offences arose man could fail to draw from the direct This is an important decision that out of property transactions entered facts proved. To draw such an inference, highlights what is required for the proviso into between 1985 and 1990 when they three requirements must be met. First, to apply. Namely, to satisfy the test when were both engineers in the Highways it must be grounded on clear findings of drawing an inference of fact, the inference Department. The two Appellants had primary fact. Second, the inference must must be: (i) a compelling one and the only during this time owned flats with their be a logical consequence of those facts. one that a reasonable man would draw; wives in North Point and had entered into Third, beyond being logical (since more (ii) grounded on clear findings of primary tenancy agreements with each other in than one inference might logically be facts; (iii) a logical consequence of those respect of the others flat whilst at the drawn) in a criminal case the inference facts; and (iv) irresistible, meaning the same time claiming a Private Tenancy must be irresistible, which means it must only one that can be drawn from those Allowance (PTA). The Prosecutions be the only inference that can reasonably facts. case was that the Appellants had be drawn on the basis of those facts obtained PTA when they knew they were - Morley Chow Seto (Winnie Lo v HKSAR (2012) 15 HKCFAR 16 not entitled to it because they had a at 115). financial interest in the respective flats, which they purportedly leased from each Holding other. They allegedly concealed this The Court of Final Appeal found that interest by pretending to be tenants of in the absence of direct evidence, each others wives. it was inherently implausible for The central issue on appeal was whether the Appellants to have gone to the the only reasonable inference that could effort to enter into an illegitimate be drawn from the evidence was that cross-holding agreement and enter the Appellants had entered into an a bogus cross-leasing agreement express cross-holding of the properties when they could have just set (which was not permissible and involved up a legitimate cross- an agreement to hold their respective leasing agreement which properties on trust for each other) or a achieved the same cross-leasing agreement (which was objective. permissible and involved letting out flats which they owned to each other). The While the Court of Court of Appeal found the District Court Appeal had rightly Judge had made findings of fact which held that the were materially erroneous but upheld appellants the convictions, applying the proviso convictions based because the inevitable consequence of on the Judges findings www.hk-lawyer.org 53

55 April 2016 GC AGENDA AMAC Issues Private Investment Fund Disclosure HKSAR v Mak Chai Kwong & Tsang ( Rules King man ) On 4 February 2016, the Asset () Management Association of China (AMAC) ( 9(3) (Winnie Lo v HKSAR ) issued the Measures on the (2012) 15 HKCFAR 16115) Administration of Private Investment 19851990 Fund Information Disclosure ( ), which took effect immediately. AMAC is the industry association for securities investment funds authorised by the China Securities () Regulatory Commission (CSRC). The measures require information () disclosure obligees, that is, private investment fund managers, fund custodians and other legal persons and organisations designated by the CSRC or AMAC, to disclose a broad range of information to investors, including the following information related to a fund: ( constitutional documents such as the fund contract, partnership agreement ) and articles of association; ( promotional documents such as the ) prospectus; sales agreement (if any); investment situation; assets and liabilities; allocation of investment income; costs and performance fees; [] potential conflicts of interest; significant disputes; or other information that can (i) significantly affect investors lawful (ii) rights and interests as determined by (iii) the CSRC or AMAC. (iv) Kissel v HKSAR (2010) Information may be disclosed by letter, 13 HKCFAR 27270 fax, email, website or third party, and it must be disclosed through AMACs online platform. The platform is currently - under construction, but it is intended to provide search functionality for investors. () The measures also prohibit information disclosure obligees from disclosing: 54www.hk-lawyer.org

56 April 2016 INDUSTRY INSIGHTS false or misleading information such as predictive claims, inaccurate comparisons, puffery and so on; information in promotional materials (such as the prospectus) that is inconsistent with information in a funds constitutional documents; or confidential information such as trade secrets or personal information. Market Reaction Natasha Xie, Partner, JunHe LLP, Shanghai AMACs new rules on information disclosure are designed to further regulate private fund managers and protect the rights and interests of fund investors. The supervision and regulation of private funds has moved to a new stage () where private funds and fund managers are required to be more transparent and violations of information disclosure obligations will lead to various self- disciplinary sanctions. Action Items General Counsel for private funds and fund managers should closely study the new disclosure rules and work with - Practical Law China AMAC to ensure compliance in relation to their clients constitutional, promotional documents and so on, as well as GC AGENDA compliance with the periodic disclosure requirements. PBOC Initiates Pilot Cross- Border Financing in FTZs - Practical Law China On 22 January 2016, the Peoples Bank of China (PBOC) issued the Notice on the Expansion of a Full Bore Macro- : Prudential Cross-Border Financing Pilot Programme ( ). 201624 The notice initiated a pilot cross-border () () Renminbi (RMB) and foreign currency financing regime in the Shanghai, Guangzhou, Tianjin and Fujian free trade ( zones (FTZs) from 25 January 2016. The ) concepts in the new programme were first introduced in Chinas (Shanghai) Pilot Free Trade Zone (Shanghai FTZ) in relation to cross-border RMB financing only. www.hk-lawyer.org 55

57 April 2016 According to the notice, cross-border Action Items financing refers to RMB and foreign General Counsel for companies in China currency financing from a lender resident that require in-bound financing may wish outside China by: to work with their finance colleagues to a pilot company registered in one of study the new pilot cross-border financing the FTZs; or programme, as well as the pending a designated domestic or foreign bank implementing rules once they are operating in one of the FTZs. released, to determine if the new regime offers significant benefits. Under the notice, a pilot company or bank can obtain cross-border financing, - Practical Law China provided it does not exceed a ceiling calculated by reference to a formula that comprises certain risk conversion multiples and macro-prudential policies determined by the PBOC. The notice subjects pilot companies and designated banks to different sets of 2016122( requirements for: ) calculating the applicable borrowing ceiling; 2016125 record-filing a cross-border financing ( agreement with the SAFE; and ) converting foreign currency into RMB. () SAFE will issue detailed implementing ( rules to govern cross-border financing by ) pilot companies. Pilot companies with foreign investment - Practical Law China and designated banks may elect to apply the new regime or continue to apply the existing cross-border financing regime. INTELLECTUAL PROPERTY Market Reaction CFA Reviews Test Harvey Lau, Partner, Baker & McKenzie, for Passing-Off and Shanghai Infringement of Registered Most believe the notice provides a more Trade Mark streamlined in-bound lending regime for pilot companies and designated The high-profile dispute in Tsit Wing commercial banks in one of the FTZs. (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd all but came to an end with the They would benefit from more discretion in determining whether to obtain Court of Final Appeals judgment ([2016] financing from onshore or offshore. That HKEC 228, FACV No. 15 of 2015 to said, there are only a few publicly reported be reported). The case has given rise to cases of in-bound lending since the notice numerous judgments (interlocutory, trial came into effect. This may be a result of and on appeal). The upshot in the CFA the recent increase in the cost of in-bound may be briefly summarised as follows. lending, the notice having only come First, the CFAs judgment confirms that into effect a month ago, and the fact that mere potential dilution of a plaintiffs detailed implementing rules have yet to trade mark does not constitute sufficient be published. Most market players may be damage the purposes of the tort of taking a wait-and-see approach. passing-off. The CFA judgment rejects 56www.hk-lawyer.org

58 April 2016 INDUSTRY INSIGHTS the introduction of the concept of CFA and Court of Appeal judgments). dilution into the common law tort of For the other trade mark issues before passing-off in Hong Kong, irrespective the CFA, readers can review the judgment () of judicial comments in some other granting permission to appeal ([2015] common law countries. Therefore, the HKEC 877, FAMV No. 6 of 2015) and the conventional understanding of the tort final judgment (paras. 54 and 55). of passing-off remains intact and, in particular, the need for the plaintiff to - Jason Carmichael, Partner, (559)18(3)( establish (among other things) some Smyth & Co in association with RPC ) element of deception or confusion of its * Section 18(3) of the Trade Mark Ordinance: A customers. On the facts, the plaintiff had person infringes a registered trade mark if- (the Agreement on Trade-Related demonstrated this in the lower courts. (a) he uses in the course of trade or business Aspects of Intellectual Property Rights)( Second, as a matter of statutory a sign which is similar to the trade mark construction, s. 18(3) of the Trade Marks in relation to goods or services which are )16(1) identical or similar to those for which it is Ordinance (Cap. 559) (Infringement registered; and (b) the use of the sign in of registered trade mark*) should be relation to those goods or services is likely to ()16(1) interpreted consistently with certain cause confusion on the part of the public. (emphasis added). (EU Directive)( international norms and in light of similar provisions in Art. 16(1) of the Agreement )1997 on Trade-Related Aspects of Intellectual 18(3) Property Rights (TRIPS Agreement). The two sub-sections in s. 18(3) are not in plain terms causally linked, in contrast (a) with (for example) Art. 16(1) of the TRIPS (b) Agreement, Art. 5(1) of an EU Directive () (on the approximation of member state Tsit Wing trade mark laws), relevant UK legislation (Hong Kong) Co Ltd v TWG Tea Co Pte and Hong Kong legislation in force before Ltd reunification in July 1997. However, the ([2016] HKEC 228 use of the word and between the two 201515 ) () sub-sections meant that they should be ( interpreted so that it is the similarity required in sub-section (a) which renders ) the use likely to cause confusion referred to in sub-section (b) (see (([2015] HKEC 877 endnote). Readers wishing for something 20156)(5455 more graphic can compare an example of one of the second defendants then ) logos or cartouche with representations - of the second plaintiffs registered marks Smyth & Co RPC (included as part of the annexures to the * 18(3) (a) (b) () www.hk-lawyer.org 57

59 April 2016 LABOUR & EMPLOYMENT Non-dealing or non-solicitation obligation in order to obtain any provisions are generally enforceable, remedies. If the breach of confidential Confidential Information: but collecting evidence for this purpose information involves an infringement of What You Need to Know sometimes can be difficult. Many intellectual property, the employer may When Employees Leave employers therefore now impose non- seek remedies, including an injunction competes as conditions for bonuses and or, if it can prove a loss has been Preventing Employees from long-term incentive plans. suffered, damages. Competing Seeking an injunction to stop the Cross-Border Breaches The extent to which an employer can infringing conduct is possible, but it prevent employees from competing When there is a post-employment would only be a practical step if the varies, depending on whether it is during breach involving cross-border, the main employers interests are significantly employment or post-employment. consideration is the enforceability of at risk, the situation is dire, and the During employment, employees have remedies. employer has a very strong case (because a duty of fidelity and good faith not to An injunctive relief obtained in Hong court injunctions are extremely difficult act in conflict with the interest of their Kong will likely not be enforceable to obtain). Other remedies may include a employer. This includes not engaging elsewhere, including the PRC. On the claim for damages. in a competing business. Outside other hand, an award for damages may employment that is not related to and/ Available Remedies be enforceable in another jurisdiction if or not inconsistent with the current An aggrieved employer can seek there is a reciprocal agreement subject employer can only be bound by express equitable relief (injunction) or damages. to condition, such as jurisdiction clauses. contractual provisions. The duty of fidelity An action will have to be taken in a will also extend to keeping company court of law and not Labour Tribunal if - Cynthia Chung, Partner, Deacons in information confidential and not conjunction with the Employment seeking equitable relief. The obligation soliciting/inducing customers or clients Law Alliance to maintain confidential information to cease using the employers service. does not automatically survive the Post-employment, non-compete post-employment period. Instead, there provisions are enforceable only if they needs to be a contractual obligation. The are reasonable in duration, scope, and employers position is slightly better if geographical area for protecting the the confidential information amounts to legitimate interest of the employer. There trade secrets, but it is recommended in is no requirement to make payment any case that the employer impose an during the restricted period, but payment express contractual obligation on the of some consideration throughout the employee to ensure adequate protection. restricted period would go towards As with many other jurisdictions, the showing reasonableness. Case law has employer must be able to show with indicated that any restriction longer evidence that the employee acted than six months will be enforced only in in breach of his or her confidential extreme cases. 58www.hk-lawyer.org

60 April 2016 INDUSTRY INSIGHTS ( ) ( ) LABOUR & EMPLOYMENT considers it appropriate and practicable, notwithstanding that the employer has Reinstatement or Just not consented. Re-Negotiation? The The proposed amendments would not Employment Amendment affect dismissals which are unreasonable Bill 2016 but not unlawful. In those cases, consent On 12 February 2016, the Government of both parties will still be required. gazetted the Employment (Amendment) When considering the practicality of Bill 2016 (the Bill). The Bill will be an order, the Labour Tribunal will take introduced into the Legislative Council into account various factors including for first and second readings on 2 March the circumstances of the dismissal and 2016 but it is not clear when it may come the relationship between employer into force. and employee. Each party will be given The Bill empowers the Labour Tribunal an opportunity to put forward their to make an order for reinstatement or respective case as to whether or not an re-engagement if it is requested by order should be made. an employee who has been dismissed Similar provisions have been in place unreasonably and unlawfully (ie, an in the UK for some time. However, employee who has been dismissed under the Employment Rights Act, any without a valid reason and in dismissal found to be unfair could result circumstances which are prohibited in a reinstatement or re-engagement under the Employment Ordinance for order if requested by the employee. A example, those on maternity leave or stark contrast however is the higher paid sickness leave). penalty in the UK for failure to comply Previously, such an order could only with an order of reinstatement or re- be made with both the employers and engagement: currently 26 to 52 weeks - employees consent, which in practice pay capped at 12,350 to 24,700. In Employment Law Alliance meant that it would never happen. If Hong Kong, the proposed penalty is enacted, the Labour Tribunal could order three times the employees average reinstatement or re-engagement where monthly wage, subject to a maximum of the employee agrees and the Tribunal HK$50,000. This would be paid to the employee. www.hk-lawyer.org 59

61 April 2016 This sanction would punish an employer PRC for failing to comply with an order for reinstatement or re-engagement and China Updates High and is on top of the monetary remedies New Technology Enterprise payable to the employee as ordered by Tax Rules: Five Key the Tribunal. An employer who wilfully Implications and without reasonable excuse fails to The income tax reduction for high and pay the penalty would also be guilty of a new technology enterprises (HNTE) is a criminal offence. key tax incentive available under current In practice, these proposals are unlikely China tax laws and plays an important to be game-changers. Hong Kong is role in encouraging investment in high- an employer-friendly jurisdiction, but tech and research and development most employers try to avoid dismissing areas. In late January 2016, the Ministry unlawfully because of the financial of Finance, the State Administration of penalties and potential criminal (Employment Taxation, and the Ministry of Science liability under existing law. That said, and Technology jointly issued the new Rights Act) the proposed HK$50,000 penalty is Administrative Measures for Certification relatively low and employers may prefer of High and New Technology Enterprises to offer this to employees directly to avoid Circular ("Circular 32"), which significantly the hassle and cost of having to produce changes the HNTE certification rules and evidence as to the impracticability of the came into effect at 1 January 2016. employee returning. Savvy employees 2652 Circular 32 lowers the criteria for may use the new rights and obligations 12,35024,700 qualifying as a HNTE, but at the same to press for a higher settlement. time enhances the requirements for 50,000 intellectual property ownership as well as - Jennifer Van Dale, Partner, and compliance. Hannah Swift, Registered Foreign Lawyer, Eversheds The key implications for HNTEs are summarised below. Ownership of Core Intellectual Property A qualified HNTE shall maintain 2016() ownership of the technological 2016212 intellectual property that is essential 2016()( to the enterprises production of )201632 products or provision of services. Such ownership may derive from proprietary research and development, purchase, donation, acquisition or other means, but 50,000 intellectual property made available to an ( enterprise through an exclusive licensing arrangement would no longer qualify. Research and Development Personnel Requirements ) The requirement that a company have - Jennifer Van Dale a minimum percentage of research and Hannah Swift development personnel is now lowered to 10 percent of the enterprises total employees, compared with the previous 60www.hk-lawyer.org

62 April 2016 INDUSTRY INSIGHTS minimum, which was 30 percent of the total employee numbers. At the same time, it is no longer required that each qualified research and development employee needs to hold a college diploma. Research and Development Expense Requirements The research and development expense ratio requirement is lowered from 6 to 5 percent for small and medium-sized enterprises with an annual sales revenue less than RMB50 million. The research and development expense ratios for enterprises with an annual sales revenue between RMB50 million and RMB200 million, and enterprises with an annual changes will be further expanded in sales revenue above RMB200 million, the updated guidelines, and the eight remain unchanged at 4 percent and business areas eligible for application of 3 percent, respectively. HNTE benefits may be expanded. Application Documents - Daniel Chan, Partner, and Windson The application documents required Li, Of Counsel, DLA Piper 10% remain similar to those set out in the 30% previous rules, but now include income tax filing records from the latest three years. Strengthened Compliance Requirements Under Circular 32, certified HNTEs are now required to conduct an annual 5,000 recordal with the authorities, providing 6%5% the years intellectual property status, 5,0002 20161 research and development personnel 2 and expenses, sales revenue and other (201632) 4%3% information. Where an HNTE fails to meet the prescribed criteria in a particular year, or where an HNTE fails to conduct 201611 the annual recordal for two years, the HNTE qualification will be revoked and 201632 the income tax benefit received in the relevant years may be clawed back. In addition, Circular 32 also requires the authorities to conduct random reviews 201632 and investigations on certified HNTEs. Circular 32 also provides that the administrative guideline for HNTE certification will be updated and re-issued for implementation of the new rules. It is generally expected that the above www.hk-lawyer.org 61

63 April 2016 offer expressed to be without prejudice noted that there are a myriad of save as to costs if at the time the offer situations in civil litigation where it is not 201632 is made the offeror could have made a possible for a party to make a sanctioned sanctioned offer or sanctioned payment. payment into court together with an offer The ambit of this exclusion (together to settle: Leung Lai Kwan v Lo Kai Wing [2015] 3 HKLRD 152 (para. 22) and, on with what constitutes a valid sanctioned 201632 offer) has given rise to a notable degree appeal, [2015] HKEC 1710 (para. 7). In of uncertainty, besides generating a body another recent case, Ku Suet Yu Amy v of case law in the last seven years. The JV Fitness Ltd [2016] HKEC 330 (a slip difficulty with trying to discern lessons and fall case), a master in the personal injuries list gave effect to a defendant from the case law is that it is largely fact specific and what (for example) may go insurers pre-action Calderbank offer on in costs disputes arising out of the for the same amount as that repeated use of sanctioned offers or Calderbank in a combined post-action sanctioned payment and sanctioned offer. offers in routine personal injury litigation may have little relevance to commercial While Calderbank offers and sanctioned disputes. The uncertainty arising out of offers and sanctioned payments are - Windson Li the application of O. 62, r. 5(1)(d) (the a common feature of the litigation exclusionary rule) was the subject landscape in Hong Kong, there is an of another dispute before the Court unwelcome degree of uncertainty of Appeal in re CEP Ltd [2016] HKEC concerning the entitlement to enhanced SETTLEMENT 42, CACV Nos. 97 and 165 of 2014, in costs. There is much to be said for which a Vice-President commented the Vice Presidents call for greater Calderbank Offers Alive that:In addition, I wish to highlight the clarification. In the meantime, parties to (and Doing Rather Well) unsatisfactory position regarding the latter civil litigation should think twice about Judged by their frequency of use, the part of Order 62 Rule 5(1)(d) which, in my failing to accept reasonable settlement procedural regime for sanctioned offers view, unduly fetters the courts discretion offers (or failing to engage by, for and sanctioned payments has arguably on costs In my view, the regime in Order example, making reasonable counter been a success (Rules of High Court 22 should be permissive rather than offers). and District Court, O. 22). Civil litigation mandatory. It would be most unfortunate practitioners frequently have to advise if a Calderbank offer cannot be taken into - Warren Ganesh, Senior Consultant, on the merits of sanctioned offers or Smyth & Co in association with RPC account because those advising a litigant sanctioned payments (and counter- took a wrong view on the applicability * For the full quote, see para. 1 of the Court of offers) in all manner of civil cases, of Order 22 The exclusionary rule also Appeals judgment. ranging from commercial disputes to seems to be inconsistent with Order 22 personal injury litigation. Sanctioned Rule 2(4). The Rules Committees of the payments are frequently combined Rules of the High Court and the Rules with sanctioned offers. They come with of the District Court (which has a similar Calderbank the potential for (among other things) provision) should consider whether we enhanced costs for the offeror. should amend Order 62 Rule 5(1)(d) by () So what of Calderbank offers (without deleting the exclusionary rule from it.* prejudice save as to costs)? These In CEP Ltd, the defendant offeror was survived the introduction of sanctioned successfully able to rely on (among other ( offers and sanctioned payments as part things) a Calderbank offer with respect 22) of the civil justice reforms in April 2009. to the costs of the appeal because the Court of Appeal acknowledged that the However, the interaction between the O. 22 regime and Calderbank offers O. 22 regime did not extend to appeal is often uncertain. The exclusionary proceedings. () rule in O. 62, r. 5(1)(d) provides that, As we observed in our Industry Insights in exercising its discretion as to costs, for October 2015 (Reasonable Settlement the court may not take into account an Offers) a High Court judge has already 62www.hk-lawyer.org

64 April 2016 INDUSTRY INSIGHTS () Calderbank() 2009 4 22Calderbank 62 5(1)(d)(exclusionary rule) ( ) 22 () Calderbank ( () Calderbank Calderbank ) Calderbank 201510 ( ) CEP Ltd([2016] HKEC 42 201497165) Leung Lai Kwan v ( 625(1)(d) Lo Kai Wing [2015] 3 HKLRD 152 ( ) () 22)[2015] HKEC 1710( 7)Ku Suet Yu Amy v JV Fitness Ltd [2016] HKEC 330( - Warren Ganesh ) Smyth & Co RPC 62 Calderbank 5(1)(d) * 1 22 Feel free to write in to us with more short contributions on latest industry developments and trends. Simply contact the editor at: 22Calderbank [email protected] 222(4) [email protected] () The information provided here is intended to give general information only. It is not a complete statement of the law. It is not intended to be relied upon or to be a substitute for legal advice 62 in relation to particular circumstances. 5(1)(d)* CEP Ltd www.hk-lawyer.org 63

65 April 2016 CASES IN BRIEF ARBITRATION attempts to resist enforcement and recognition of the agreement itself. Chimbusco International Petroleum Parties to such an agreement should expect the court to recognise and Chimbusco International Petroleum (Singapore) Pte Ltd v Fully Best Trading enforce it, and if they took the risk (Singapore) Pte Ltd v Fully Best Ltd [2015] HKEC 2573 of instituting court proceedings in Trading Ltd [2015] HKEC 2573 Court of First Instance breach of it, to pay costs on a higher High Court Action No. 2416 of 2014 scale if their attempt to impeach it Mimmie Chan J in Chambers 20142416 failed. Unmeritorious challenges to 3 December 2015 an arbitration agreement, and the use of court proceedings did not accord 2015123 Costs indemnity costs with the underlying objectives of Civil general rule of awarding Justice Reform, given the duties of indemnity costs to unsuccessful the parties and their lawyers to assist the court in the cost-effective and attempts to resist enforcement efficient resolution of a dispute. of arbitral award applied to D had successfully obtained a unsuccessful attempts to resist stay and there were no special enforcement and recognition of circumstances to justify departing arbitration agreement itself from the general rule. There was a clear case of a valid arbitration P brought proceedings against D for agreement. Such agreement was not sums owing under a contract which null and void, inoperative or incapable contained an arbitration agreement, but of being performed. Unless there was consented to Ds application for a stay a clear and unequivocal admission of the action to arbitration in Singapore of both liability and quantum, there pursuant to the agreement. P argued was a dispute between the parties. that costs of Ds application should be in Unless it was clear there was no the cause, as there was no arbitration or valid arbitration agreement, the award yet. court should not attempt to resolve Held, ordering P to pay indemnity costs the dispute, but stay the matter to D, that: to arbitration. Further, the fact There was no reason to differentiate that challenges to an arbitration agreement, or arbitral award, were between unsuccessful attempts to resist enforcement of an arbitral not unarguable, did not constitute award made under an arbitration a special circumstance. There was ( agreement, where the general rule no reason why P should not have ) was that the unsuccessful party commenced arbitration for recovery would be ordered to pay indemnity of the alleged unpaid balance due, costs unless special circumstances instead of bringing legal proceedings could be shown, and unsuccessful in Hong Kong. 64www.hk-lawyer.org

66 April 2016 CASES IN BRIEF sign-on fee advance of HK$140,700 resisting a bankruptcy petition and to Ds downline agent (K). On a fair probability of establishing a Ds non-compliance, P presented a bona fide defence for obtaining leave bankruptcy petition against D. The to defend a civil action, whether Recorder dismissed the petition, holding unconditionally or with conditions. that there was a bona fide dispute on In that sense, the threshold test for substantial grounds as to whether the resisting a petition would require a HK$2,932,200 sign-on fee was due and higher standard of proof. payable as at the date of the statutory Notwithstanding this difference, the demand; and P could not rely on the threshold tests in both situations HK$140,700 sign-on fee to K, as it were broadly similar. If a petition was a liability founded on a guarantee was dismissed on the basis of a bona signed by D (the Guarantee) which fide dispute on substantial grounds, document was not mentioned in the it would be unlikely that summary statutory demand. P appealed, arguing judgment could be obtained. that the Recorder appeared to reject Conversely, where a defendant had its submission that where a debtor obtained leave to defend, it would be opposes a petition on the ground that most unlikely that a petition would be there is a bona fide dispute on the debt granted. on substantial grounds, the debtor has The Recorder had not failed to a higher standard to discharge than apply the relevant legal principles resisting an application for summary in dismissing the petition judgment under O. 14 of the Rules of based on a bona fide dispute on High Court (Cap. 4A, Sub. Leg.) (the substantial grounds as regards the RHC). HK$2,932,200 sign-on fee; or applied Held, dismissing the appeal, that: a lower standard to the evidence required to establish such a defence. The tests for establishing a bona BANKRUPTCY The dispute could not be properly fide dispute on a debt on substantial grounds and for resisting an decided in a bankruptcy petition. Re Leung Cherng Jiunn application for summary judgment There was a real dispute, to a [2015] HKEC 2738 substantial extent, on disputed under O. 14 r. 3 of the RHC involved Court of Appeal) questions of fact which should different considerations in respect Civil Appeal No. 128 of 2015 of evidence. The distinction lay in be resolved in a civil action with Yuen and Kwan JJA and Thomas Au J establishing a bona fide defence for pleadings and oral evidence. 23 December 2015 Petition bona fide dispute as to debt whether higher standard required for resisting petition on ground of bona fide dispute than for resisting application for summary judgment P, an insurance company, served on D, its former agent, a statutory demand based on a total debt comprising two debts which D had since paid P and two other debts which remained outstanding, namely: (a) sign-on fee advance of HK$2,932,200; and (b) a 25 percent www.hk-lawyer.org 65

67 April 2016 of Xs passport and his own Form 8 recognisance. D was then arrested. He claimed he did not know what was Re Leung Cherng Jiunn () inside the parcel and had agreed to [2015] HKEC 2738 fetch and deliver it to a friend, G, for a reward of HK$1,000. Later that day, D assisted authorities in a controlled 2015128 delivery. On receiving a call on his mobile telephone, D told the caller that he was delivering the parcel, but after 10 attempts to contact G failed, the operation was aborted. By the 20151223 time of his plea, D accepted he had trafficked in the cocaine which had 2,932,200 been unlawfully imported into Hong Kong. D was a 29-year-old torture claimant and committed the offences for financial reasons. In mitigation, he relied on higher discounts from the PD starting point for voluntary assistance D in a controlled delivery operation of (a) 7.3 percent and 7.5 percent given in two 2,932,200(b)D Court of Appeal decisions. The Judge (K)25% adopted a starting point of 15 years and 140,700DP 6 months, enhanced it by one year for D the international element, then reduced 2,932,200 it for plea and gave a further discount CRIMINAL of nine months for Ds assistance in the controlled delivery to 10 years and three HKSAR v Nkwo Nnaemeka Darlington months. D applied for leave to appeal 1 HKEC 2675 against sentence 15 months out of time, PK relying on three other first instance 140,700 Court of Appeal decisions in which the same Judge in D() Criminal Appeal No. 78 of 2015 those cases gave a total discount of Lunn V-P and Macrae JA 40 percent for plea and participation P 15 December 2015 in a controlled operation (the Three Decisions). Discount and mitigation Held, dismissing the application, that: (4A assistance to authorities D had provided no good reason for )14 participating in controlled the very late notice of his intention delivery of dangerous drugs to seek leave to appeal. Even if Ds approach application had any merit, the Court would have been even less disposed D pleaded guilty to, inter alia, trafficking to interfere with a sentence when in a dangerous drug, namely 0.43 kg of such application was made so far out cocaine. Customs officers intercepted of time. 14 a parcel from Brazil addressed to X Neither a fixed straitjacket 3 and found the cocaine hidden in a percentage discount nor a range of carton containing 24 boxes of tea bags. percentage discounts for assisting D collected the parcel from a post authorities by participating in office using a notification card, a copy 66www.hk-lawyer.org

68 April 2016 CASES IN BRIEF controlled delivery operations was possible or desirable. The relevant sentencing factors necessarily depended on the unique circumstances of each case and included: (a) the nature and effect of any voluntary participation; (b) the outcome of the assistance, namely whether it was successful in bringing to justice persons who would not otherwise have been brought to justice; (c) the degree or extent of assistance provided; and (d) the degree of risk to which the defendant CRIMINAL EVIDENCE had exposed himself or his family. HKSAR v Ip Wing Lun [2015] HKEC 2691 7.3%7.5%156 Court of Appeal Criminal Appeal No. 368 of 2014 HKSAR v Nkwo Nnaemeka Lunn V-P, Macrae and Pang JJA Darlington 1HKEC 2675 17 December 2015 9 103 201578 Defence evidence whether error in approach in summing-up D was convicted of conspiracy to offer 40%() advantages to an agent with two co- 20151215 15 defendants (C12). The prosecution alleged that D, Cs and others, conspired to offer advantages to the then chairman and executive director of a Hong Kong listed company, as an inducement or reward for him causing that company 0.43 to acquire a mainland Chinese business for HK$500 million and/or causing a X change to the composition of its board 24 of directors. D was a certified public accountant. His defence was that his X role was limited to providing ordinary (8) accounting services without knowledge of the underlying fraud or any benefit (a) from the transaction. D did not give (b) evidence and there was no record of G1,000 interview. The Judge dealt with Ds case (c) on the last day of his summing-up to (d) the jury, delivered on four days over a nine-day period. D appealed against G conviction, arguing that the Judge erred in failing properly to summarise his case 29 resulting in an unbalanced and unfair summing-up. www.hk-lawyer.org 67

69 April 2016 Held, dismissing the appeal, that: There was no universal template or blueprint for a judges summing-up. HKSAR v Ip Wing Lun It was within his discretion how best [2015] HKEC 2691 to present to the jury the law, the issues in the respective cases and 13 the salient evidence relevant to their 2014368 resolution. Where a defendant had not given evidence and there was no record of interview before the jury setting out his case, the judge should ensure the jury is adequately 20151217 and appropriately reminded of his defence. A judge should not give a second speech for the defence but, 28 in a very lengthy case with multiple 9 ( defendants, or where there had been ) a significant interval between closing speeches and summing-up, he might take sufficient care to include in his () directions some of the salient features of the defence case as espoused in 5 counsels speeches. Although there was no testimony or record of interview from D, his counsel gave a closing speech CIVIL EVIDENCE over two days. The jury retired on 7 October 2014, thirteen days after Lau Kwai Yin v Tack Hsin Restaurant hearing from D5's counsel. In the (London) Ltd [2015] HKEC 2747 Court of First Instance context of a five-month complex Personal Injuries Action No. 927 of commercial fraud/bribery trial 2013 involving six defendants, such a Bharwaney J in Chambers timeline was hardly exceptional. Nor () 23 December 2015 could it sensibly be criticised. In addition to the Judges remarks concerning Ds case at the end of Expert evidence personal his summing-up, at least nine of injuries claim admissibility of 28 points made by defence counsel report on liability case need in his closing speech were covered not be exceptional for joint elsewhere at other stages in the approach to be adopted or for summing-up. The essentials of party to apply for leave before Ds case were adequately placed engaging expert before the jury in the summing- up and D was not deprived of a P, a chef employed by D1, claimed that fair trial. The jury would well have he sustained severe burns when he appreciated the distinction between switched on the main burner valve of a D as an accountant and the other gas wok range and an explosion in the conspirators, what his defence was combustion chamber caused the wok half full of oil to topple over and splash and the points in his favour. hot oil over his body. P brought personal 68www.hk-lawyer.org

70 April 2016 CASES IN BRIEF to experts on liability. Likewise, a case need not be exceptional for a party to apply for leave before engaging his liability expert. The early involvement of the court might assist the parties to engage experts of the right discipline and to identify the issues on which they were to be instructed 2013527 to render their opinions and so avoid the risk of substantial costs being wasted. Lau Kwai Yin v Tack Hsin Restaurant (London) Ltd [2015] HKEC 2747 injury proceedings against D1 and its registered gas installer and maintenance contractor (D2), pleading the doctrine 2013927 of res ipsa loquitur. Ds denied its application. The Labour Departments accident report noted that no 20151223 CRIMINAL SENTENCING abnormality of the wok range was found and, like the incident report of Towngas, HKSAR v Annells Deborah stated that the cause of the accident [2015] HKEC 2771 could not be ascertained. P sought leave District Court to adduce a report on liability prepared Criminal Case No. 148 of 2015 by a fire and explosion investigation Judge Eddie Yip expert dated 27 May 2013 (the Expert 9 December 2015 Report) on the possible causes of the explosion. The Master refused leave and P appealed. Perverting justice multiple offences involving attempted Held, allowing the appeal with fraud attempt to use forged consequential directions, that: document to misrepresent This was a proper case to grant ( companys financial status leave to the parties to adduce expert ) in order to rent office and to evidence from engineers experienced (res ipsa loquitur) apply to vary bail condition in the investigation of fires and explosions on the cause(s) of the sentencing considerations accident. The Expert Report on D was convicted of attempted fraud liability was not devoid of any merit (Charge 1), perverting the course or probative value and P was granted of public justice (Charge 2) and leave to adduce it and a second 2013527 possessing a false instrument contrary report to be obtained dealing with to s. 75(2) of the Crimes Ordinance further documentary evidence served (Cap. 200) (Charge 3). D was the after 27 May 2013. Leave would also () British director and person-in-charge of be granted to Ds to jointly instruct a tax consultancy company (C). The and adduce expert evidence. prosecution's case was that D forged Going forward, a case need not be a memorandum of understanding exceptional to adopt a joint approach (the USD MOU) by altering the www.hk-lawyer.org 69

71 April 2016 consideration for the sale of C to US$1 to the Magistrate, which did not million from HK$1 million in the original, include a court order obtained by genuine document; and attempted Ds landlord for arrears of rent and HKSAR v Annells Deborah to use the USD MOU to rent an office vacant possession, suggested an by misleading the landlord into ordinary business decision to move [2015] HKEC 2771 believing that C was a financially sound offices unrelated to a dire financial business so that it would not default position. Given Ds very substantial 2015148 in the payment of rent (Charge 1). In and escalating financial liabilities and separate criminal proceedings due to declining assets, she was every inch a take place in the Court of First Instance, flight risk. 2015129 51 charges of theft of choses in action, The following starting points were four charges of fraud and one charge of adopted: (a) on Charge 1 of 18 possessing a false instrument were laid months imprisonment; (b) on Charge against D for allegedly misappropriating 2 of three years and six months approximately HK$37.6 million in breach imprisonment; and (c) on Charge 3 of of trust and by forgery. D was granted 12 months imprisonment. Ds status bail in respect of those proceedings, as a foreigner and her disconnection but barred from leaving Hong Kong. D () from her family in prison and her successfully applied to vary that bail () being a past president/director of condition by submitting the USD MOU the Rotary Club of Hong Kong was (200)75(2) through her lawyers and persuading not an effective mitigating factor. The () the Magistrate that she was not a failed attempted fraud was separate flight risk (Charge 2). In execution of from the perverting offence. However, () a search warrant of Ds office, police the possession of the USD MOU was seized various documents including the closely linked to its use to defraud () USD MOU (Charge 3). The Judge held Ds prospective landlord and also the 100 that as regards Charge 3, D had the Magistrate. As for totality, six months 100 USD MOU in her custody and control; of the sentence on Charge 1 would she knew it to be false; and she had no run consecutively to that on Charge 2 lawful authority or excuse to possess it. while the sentence on Charge 3 would () Held, sentencing D to a total of four run concurrently to those on the other years imprisonment, that: charges, making an overall sentence 514 of four years imprisonment. The sentence for perverting the course of public justice depended 3,760 on three factors: the seriousness of the substantive offence to which the perverting of the course of justice related; the degree of persistence; ( and the effect of the attempt to ) pervert on the justice itself. ( The multiple criminal charges in ) Charge 2 involved very serious offences. D was persistent, first deceiving her solicitor and counsel and then the Magistrate when he was handed the USD MOU by Ds counsel. Ds ploy to use the USD MOU undoubtedly influenced the Magistrate to lift the bail condition. The bundle submitted 70www.hk-lawyer.org

72 April 2016 CASES IN BRIEF hearing. H provided to W a valuation provision for a spouse (usually the report on two companies with which wife) to start life afresh would be he was associated only shortly before defeated if the costs the wife had to trial. W did not accept the Offer within pay wiped out all or substantially time and failed to beat it. On appeal, all of such provision. The justice of H succeeded in reducing the judgment the case consideration under O. 22 of HK$9.98 million in Ws favour to r. 23(6) provided the basis for the HK$6 million. H now sought costs of Family Courts to resolve the tension the trial, appeal and this application. In between litigation discipline and deciding whether it was unjust to award such underlying philosophy. costs against the party who failed to beat the sanctioned offer pursuant to O. 22 r. 23(5) of the Rules of the High Court (Cap. 4A, Sub. Leg.) (the RHC), (a)18 AVT v VNT the court shall take into account all (b)36 circumstances including those set [2015] HKEC 2718 (c)12 out in O. 22 r. 23(6)(a)(d). There was no additional express requirement 2014234 to consider the respective means of the parties as in r. 2.69D(1)(e) of the English Family Proceedings Rules 1991 (the FPR). Held, making no order as to costs 20151221 below, of the appeal and the present 6 application, that: Since O. 22 r. 23(5) of the RHC 22 applied generally, what constituted 4 relevant circumstances was to be guided by the general approach to awarding costs. In the absence FAMILY LAW of a provision like r. 2.69D(1)(e) of the FPR, the parties means could 600( AVT v VNT [2015] HKEC 2718 not be a relevant circumstance for ) Court of Appeal the purpose of O. 22 r. 23(5). The Civil Appeal No. 234 of 2014 Working Party on Family Procedure Lam V-P, Cheung and Jeremy Poon Rules recommended that O. 22 JJA should not apply to matrimonial 21 December 2015 proceedings. There were grounds for having a special set of rules for 998600 Costs cost consequences ancillary relief proceedings to resolve following sanctioned offer the tensions between litigation or payment observations discipline and the underlying (4A)22 on applicability of O. 22 to philosophy of making adequate and 23(5) financial provision cases in meaningful financial provision for a family proceedings spouse on divorce. At present, O. 22 applied to the In ancillary relief proceedings, H made 2223(6)(a)(d) family jurisdiction in Hong Kong. The a sanctioned offer to pay HK$6 million 1991 underlying philosophy in the family to W (the Offer) the day after the jurisdiction to make proper financial (Family Proceedings Rules 1991) Financial Dispute Resolution (FDR) www.hk-lawyer.org 71

73 April 2016 for the Property required before the completion date in November 2012 (the Pre-completion Payment), and that the Property would be purchased in Ds name with D holding it on trust for P and D in equal shares. D would be responsible for managing all affairs regarding the Property and finding a sub-purchaser. Pursuant to the First Agreement, D entered into a provisional and then a formal sale and purchase agreement with the developer. A few days later, at Ps instance, D executed a Declaration of Trust that she held the Property on trust for herself and P, as tenants in common in equal shares. Over the next two years, a sub-purchaser could not be found. From June 2012 2.69D(1)(e) 2223(6) onwards, P and D discussed various 23(6) options on the assumption that no sub- sale of the Property could take place before completion. On completion day, D proceeded to complete the purchase of the Property on her own but refused to return Ps contribution. Ps case was 22 that it was an implied term of the First 23(5) LAND LAW Agreement that in the event that the Property could not be sub-sold before 22 Kwang Qian Wen Marie v Kwan Kit Yuk completion, then one party, to be 23(5) [2016] HKEC 17 agreed, would complete the purchase District Court on her own and return the others 1991 Civil Action No. 3555 of 2013 contribution towards the Pre-completion 2.69D(1)(e) Deputy Judge Dick Ho Payment (Ps Implied Term). P further claimed that the parties entered into a 5 January 2016 Second Agreement in around July 2012 22 Joint investment in property under which D would complete the for sub-sale before completion purchase alone and become the sole whether implied term in beneficial owner of the Property and agreement regarding return would return to P her contribution to of contribution made by one the Pre-completion Payment. P brought party in event of sub-sale not this action against D for the return of her contribution, arguing that in failing to materialising before completion 22 return the sum, D was in breach of, inter On or about 12 March 2010, P and D alia, the First and/or Second Agreement. orally agreed (the First Agreement) At trial, D sought leave to re-amend her ( to purchase a flat (the Property) in defence to plead that it was an implied ) equal shares with a view to sub-selling term that upon any party breaching the Property prior to completion. They or withdrawing from their partnership also agreed to each contribute 50 agreement without the consent of percent of the deposit and part payment the other, the deposit would not be 72www.hk-lawyer.org

74 April 2016 CASES IN BRIEF returnable because the terms of the provisional and formal sale and purchase agreements gave rise to an irresistible inference that the parties intended such Kwang Qian Wen Marie v Kwan Kit implied term, which was necessary to Yuk [2016] HKEC 17 give the contract business efficacy (Ds Implied Term). 20133555 Held, granting judgment in favour of P, () that: 201615 20127 Neither partys implied term should be implied into their agreement. The fact that there was more than one possible outcome of a sub-sale not materialising before completion suggested that the First Agreement might well be effective ( without Ps Implied Term. Ps Implied 2010312 Term failed, inter alia, to take into ) () consideration the market situation or () price of the Property at completion in requiring one of the parties to return 201211 to the other, the latters contribution ( towards the Pre-completion Payment. ) It was simple logic, for instance, that if the market price fell below the purchase price, neither would want to take up the ( Property alone and incur an instant loss ) on top of post-completion expenses. On the other hand, if the market price had risen by a large margin at completion, then both would be keen () to complete alone or at least hold on to the 50 percent stake under the First Agreement. In either scenario, it would 20126 be quite impossible for the parties to agree on who was to go ahead with completion alone. For full summaries and judgments, please refer to Westlaw and Hong Kong Law Reports & Digest at www.westlaw.com.hk. www.westlaw.com.hk Westlaw www.hk-lawyer.org 73

75 April 2016 PROFESSIONAL MOVES Newly-Admitted Members AU-YEUNG CHU TAI WAI HUANG YUEXIU RAINBOW DAVID ANDREA LATHAM & WATKINS CHAN WING CHUNG MAN LAM HEI MAN CHAU SHAN AMY VONDA SMYTH & CO LAM KEITH LAU & CHAN CHENG PO HEI CHUNG WAI YI LEUNG CHING JANICE YANG DENISE HOGAN LOVELLS SIMMONS & SIMMONS CHIU WAI TUNG HO TSUN YIU MAK HOI LING JASON LAU, CHAN & KO IBM HONG KONG BAKER & MCKENZIE CHOW KA YAN HO WAI MUN MOK SIN YUNG MICHELLE CLYDE & CO. 74www.hk-lawyer.org

76 April 2016 PROFESSIONAL MOVES TANG MAN PONG AU-YEUNG CANDACE LAU KWAN WAI JANET TSE CHUNG PING PAUL ASHLEY PANG & CO. LAM JOHN, LAW & CO., PAU & COMPANY, SKADDEN, ARPS, SLATE, SOLICITORS LOUIS K.Y. MEAGHER & FLOM LAU SANDRA ROSENA FORD, KWAN & COMPANY TSE TSZ KWAN CHAN LING YAN LILLIAN BONNIE , TSIM YIK WAH EDWARD ROBERTSONS LI CHUN YIN LATHAM & WATKINS FRESHFIELDS TANNER DE WITT BRUCKHAUS CHAN WAI TING TIFFANY DERINGER WAN KAH KAH KARIE LI JING JANE CHENG TSZ KI WONG CHUN HIN WAT & CO. SIMMONS & SIMMONS LIU TSUI YUK CHEVALIER GROUP WONG HIU YAN HUEN & PARTNERS CHEUNG CHEUK YAN JOCELYN LUI TIN YAN NICOLA WONG CHOR-KWUN JESSICA HO & CO., GALLANT Y.T. YEUNG ADRIENNE GAVONNE SLAUGHTER AND MAY SMYTH & CO CHEUNG INGRAM SLAUGHTER AND WONG WING KIT MOORE CHRISTOPHER MAY FRESHFIELDS BRUCKHAUS MURRAY DERINGER ALLEN & OVERY C/O TONY WONG & ASSOCIATES, LAWYERS YEUNG NGA MAN IP SIU LING NG KAR YAN JOYCE YEUNG HONG MAN TO & CO., W.K. TO & CO., W.K. KAO WANG YAN NG SIU KAM JONATHAN YEUNG SHING YIP ALFRED SLAUGHTER AND MAY SIOW YIN HWEE MAYER BROWN WOO & CO., P.C. JSM KO MAI SEA MAISIE HERBERT SMITH FREEHILLS TANG CHI WAI JULIE YU ON NEI NATASHA KWAN TSZ CHUN SUN TSANG YUK TING YOUNG & CO., KAN & CO., TONY TAM & CO., M.L. ROWDGET W. www.hk-lawyer.org 75

77 April 2016 Partnerships and Firms changes received as from 1 February 2016 201621 CHAN BOW YE BONITA HONG KAM LE RHODA ROBERT CHRISTOPHER ceased to be a partner of Hastings & Co. as became a partner of Li & Partners as joined Bird & Bird as a partner as from 22/02/2016 and joined K&L Gates as from 24/02/2016. from 15/02/2016. a consultant as from 01/03/2016. 2016215 2016224 2016222 201631 SOO LI YIAN HUNG CHUN LEUNG commenced practice as the sole became a partner of Terry Yeung & Lai practitioner of Rizuko Soo & Co. as CHAN CHUNG YIN VICTOR as from 15/02/2016. from 02/03/2016. ceased to be a partner of Alvan Liu & Partners as from 22/02/2016 and remains 2016215, 201632 as a consultant of the firm. 2016222 LAM KIU YAN WHITEHEAD DAMIEN LEIGH ceased to be a partner of Terry Yeung joined White & Case as a partner as & Lai as from 01/03/2016. from 29/02/2016. CHEN GUANG PETER 2016229 became a partner of Zhong Lun Law Firm 201631, as from 01/03/2016. WORTH HELEN MARGARET joined Cordells as a partner as from 201631 LEE FONG YEE FANNY 29/02/2016. joined Christine M. Koo & Ip as a partner as from 01/02/2016. 2016229Cordells CHU CHI YIN RONALD ceased to be a partner of Deacons as from 201621 WU HUNG PUN WILSON 27/02/2016. joined Hon & Co. as a partner as from 15/02/2016. 2016227 LEE KAM HOO WILLIAM became a partner of F. Zimmern & Co. as from 01/03/2016. 2016215 GAMVROS ANNA LOUISE ceased to be a partner of Baker & McKenzie 201631 ZHAO ZHIPENG as from 01/03/2016. became a partner of Patrick Mak & Tse as from 01/03/2016. 201631 LI WAI KWONG commenced practice as the sole practitioner of Li Wai Kwong & Co 201631 HAN JIN DUK Solicitors as from 18/02/2016. ceased to be a partner of Cleary Gottlieb Steen & Hamilton (Hong Kong) as from 2016218 15/02/2016. 2016215() MA KA MING TERESA ceased to be a partner of Linklaters HO SING WAI as from 01/03/2016 and remains as a ceased to be a partner of May Cheng & Co. consultant of the firm. as from 08/03/2016. 201631 201638 76www.hk-lawyer.org

78 April 2016 A BOOK REVIEW Ill have the Law on You: The Selected Letters of John Fytit by Paul Brennan By Jenna Dennison, Senior Project Officer Community Corrections / Department of Correctional Services I ll Have the Law on You is a politely amusing compilation of legal and life advice provided by fictitious lawyer, John Fytit, in response to legal questions received from judges, prosecutors, politicians, lawyers Ill Have the Law on You and the odd wife. I must confess I am not familiar with Brennans other John Fytit works, including Hang on to It Girl: The Wily Womans Guide to Wills, though for US$5 on Amazon, I could be tempted. Hang on to It Girl: The Wily For some, the creative advice of John Fytit may be a traumatising self- Womans Guide to WillsAmazon5 reflection narrative. Others may see his advice as safe Golden Gavel material the secret is out! And others may just enjoy looking at the cartoon illustrations and consider a career change. John Fytit The book is divided into eight parts, including Career Advice and Self- Help and Advice on Issues Raised by People with Nothing to Do (the former part perhaps written by people mentioned in the latter part). 8 A few take home messages worth highlighting: () It is not the lawyer who puts you on hold, it is the legal receptionist over whom lawyers have little control. Public Servant Query: As a reward for long service, I have been offered a job of Ombudsman. However, it sounds a little bit too challenging so near to my retirement. I am concerned that it may be too taxing and argumentative John Fytits response: The Ombudsman is not an advocate for complaints nor is he there to John Fytit stick up for government departments. He is somewhere in the politically correct but potentially ineffective middle. You have all now been warned! Perhaps the hardest thing to swallow is the disturbing truth about Fytit Brennans observations. Fytits responses are at times witty, cringe- worthy, a scary mirror to reality and a refreshing reminder that it cannot always be this bad. I must admit a few chuckles and smirks escaped as I read. At least Fytits receptionist has Fytit the nous to tell the clients that their lawyer is currently unavailable rather than Yes, your lawyer is in today but told me he/she doesnt want to talk to you, a true story from a local Darwin firm. Brennan Brennan is also the author of the following notable titles: 101 Reasons to Kill all the Lawyers: That Part which Laws or Lawyers can 101 Reasons to Kill all the Lawyers: That Part which Laws or Lawyers can Cause or Cause or Cure Cure; and How to Make a Funny Legal How to Make a Funny Legal Presentation: And other Things that They Presentation: And other Things that They Didnt Teach You at Law School Didnt Teach You at Law School. True, they did not teach this in law school. 3 (5) Rating: 3 out of 5 laughs. www.hk-lawyer.org 77

79 April 2016 LEGAL HISTORY #24 Having plumbed the depths of Hong Kong (and a bit We would like to congratulate of Chinese) legal history, the Hong Kong Lawyers legal history quiz will now Mark So, Associate, Smyth & Co, principally focus on common law and Asian jurisdictions. the winner of our Legal History The questions have been prepared by Douglas Clark, Barrister. Suggestions Quiz #23. for questions to appear in next months journal are most welcome. 1. Which of the following causes of action has not been 7. Which Chairman of the Hong Kong Bar Association abolished in Hong Kong? had previously been a member of the British House A. Seduction of Commons? B. Loss of society or service of a wife A. Charles Loseby QC C. Breach of promise to marry B. Martin Lee QC C. John McNeill QC 2. It is illegal to transport nightsoil in urban areas of Hong D. Archie Zimmern QC Kong except between the hours or midnight and 6am? A.True 8. Which Hong Kong Queens Counsel arrived in Hong B.False Kong as a British marine with the British forces re- occupying Hong Kong? 3. When was outlawry in criminal cases abolished in Hong A. Charles Loseby QC Kong? B. Leo DAlmada QC A. 1865 C. John McNeill QC B. 1899 D. Brook Bernacchi QC C. 1911 D. 1997 9. Prior to becoming a barrister, Lord Neuberger, the President of the UK Supreme Court (and NPJ of the 4. Gaelic is an official language of the courts in Northern CFA) worked in what capacity? Ireland. A. Solicitor A.True B. Merchant banker B.False C. Royal Navy officer D. Chemist 5. The current Chief Justice of America, John Roberts, was formerly a partner of which international law firm? 10. Under the 1898 Convention between Britain and A. Clifford Chance China leasing the New Territories, the landing place B. Norton Rose Fulbright near Kowloon City was reserved for what types of C. Hogan Lovells Chinese ships? D. White & Case A. Men-of-war B. Merchant ships 6. The Passes Ordinance enacted in 1870 required which C. Passenger vessels of the following groups of people to carry a pass while in D. All of the above the City of Victoria between 9 pm and sunrise? A. All people regardless of race. Answers to Legal History Quiz # 23 B. Chinese. 1.B. The UK Supreme Court is housed in the Middelsex Guildhall. C. Indians. 2.C. There are three legal systems in the UK. England & Wales, Scotland and D. Enlisted men in the British military. Northern Ireland. 3. C. Law and equity were merged in 1875 by the Judicature Acts. 4.A. From the establishment of the Supreme Court of Hong Kong, the court had the power to try law and equity together. Contest Rules: 5. B. The Chief Superintendent of Trade (later the Governor) had jurisdiction to try cases. To be eligible to win a bottle of Ch. La Croizille 2007 from 6.C. Section 3 of the Jury Ordinance provides for panels of 7 or 9 jurors. Global Vintage Wines Centre, 7. C. Consensual homosexual relations were decriminalised in Hong Kong in 1991. please send your quiz question 8. B. The Patent Law of the Peoples Republic of China was enacted in 1984. answers to [email protected] 9. D. Deng Xiaoping is credited with developing the concept of One Country Two thomsonreuters.com. Systems. The first reader to respond with the most correct answers, with no more than 10. B. False. In Hong Kong, war crimes were tried by British War Crimes Courts. 3 incorrect responses, will be deemed the winner. The decision of Thomson However, the Supreme Court heard one case of treason against a Japanese- Reuters regarding the winner is final and conclusive. Canadian who had served in the Japanese army, Innouye Kanao. 78www.hk-lawyer.org

80 April 2016 LEGAL HISTORY QUIZ #24 Mark So () Smyth & Co 23 (Douglas Clark) 7. A. Charles Loseby QC 1. B. QC A. C. John McNeill QC B. D. Archie Zimmern QC C. 8. 2. 6 A. A. Charles Loseby QC B. B. Leo DAlmada QC C. John McNeill QC 3. D. Brook Bernacchi QC A. 1865 B. 1899 9. C. 1911 Lord Neuberger D. 1997 A. 4. B. A. C. B. D. 5. John Roberts 10. 1 898 A. Clifford Chance A. B. Norton Rose Fulbright B. C. Hogan Lovells C. D. White & Case D. 6. 18709 #23 A. 1.B. (Middlesex Guildhall) B. 2.C. C. 3. C. 1875(Judicature Acts) D. 4.A. 5. B. () 6.C. 379 7. C. 1991 Global Vintage Wines 8. B. 1984 Centre2007 9. D. Ch. La [email protected] 10. B. Innouye Kanao thomsonreuters.com( ) www.hk-lawyer.org 79

81 April 2016 CAMPUS VOICES CUHK Law Won the Coveted White & Case Jessup 2016 Cup in 2016 Hong Kong Regional Rounds The Faculty of Law of The Chinese University of Hong Kong (CUHK) ()2016Philip won the 2016 regional rounds of the Philip C. Jessup International C. Jessup Law Moot Court Competition and took the White & Case Jessup Cup, cementing its reputation as one of the more successful mooting White & Case Jessup programmes in Asia. In addition to winning the regional rounds, the team swept the board of other prizes including Best Applicant Memorial, Best Respondent ( Memorial (with City University), Best Oralist, and Second Runner-up ) Best Oralist. The team advanced to the international rounds of the 3 competition in Washington DC, which was held in late March, where they faced teams from around the world. Mooting has become firmly established as part of CUHK Law Facultys curriculum, and has proven popular with students. This is because participation in an international mooting competition helps to develop research, writing and advocacy skills, and deepen knowledge of public international law or international arbitration.Just as important, it provides students with a chance to work as a close-knit team and pit themselves against teams from other leading law schools. 80www.hk-lawyer.org

82 April 2016 CAMPUS VOICES HKU Law Starts Dialogue Series on Hong Kongs Constitutional Future In January 2016, the Centre for Comparative and Public Law (CCPL) of the Faculty of Law at The University of Hong Kong launched a Dialogue Series on Hong Kongs Constitutional Future. The Dialogue Series first session entitled, A Dialogue on the Future of Hong Kongs Democracy, was held on 12 January at HKU and comprised a lively, interactive conversation between Martin Lee, founding chairman of Democratic Party and Legislative Councilor (19852008), Benny Tai, Associate Professor at the HKU Faculty of Law, and Joshua Wong, founder of Scholarism. The trio, who represent three generations in the quest for Hong Kongs democracy, came together on this occasion to explore the 20161 next phase in the long and winding path to Hong Kongs democratic 1 future. They explored the challenges that each of them have faced and 12 how they saw the development of democracy in Hong Kong against the (1985 backdrop of recent events. 2008) The second dialogue, held on 26 February, focused on the future of the rule of law in Hong Kong. Joining Benny Tai on this occasion, Professor Johannes Chan, former Dean of the HKU Faculty of Law, and Mr. Kevin Yam, Convenor of the Progressive Lawyers Group, debated the concept of the rule of law in Hong Kong, remarking that there appears to be limited understanding of the fundamentals of the rule of law. Expressing 226 concern over the ambivalence displayed in relation to some of the core concepts of the rule of law, with particular mention of the undocumented disappearance of Lee Po from Hong Kong in 2015 and the Fishball Revolution, the three panellists debated how to enhance the rigour and 2015 understanding of the rule of law within the community. The third and final event in the series, entitled A Dialogue on the Future of One Country, Two Systems, will take place on 14 April. Professor Albert Chen, Cheng Chan Lan Yue Professor in Constitutional Law and () Brian Fong, Associate Director of the Academy of Hong Kong Studies, 414 () will join Benny Tai to explore how the uncertainties in relation to the operation of One Country, Two Systems can be better negotiated in 18 light of tensions in its implementation in Hong Kong over the past 18 years. Further information about the Dialogue series is available on the CCPL website (http://www.law.hku.hk/ccpl/), including the videos, which (http://www.law.hku.hk/ccpl/) appear on the CCPL YouTube channel (http://bit.ly/21gnwWa). YouTube(http://bit.ly/21gnwWa) www.hk-lawyer.org 81

83 April 2016 LEGAL MARKET In-House Market: 2016 Forecast By Michael Allen, Associate Director Financial Services, Pure Search D espite a healthy volume of new mandates coming to market, Q1 has seen a relatively sticky start to Banking 2015 was an extremely busy year within financial service-related contentious experience remaining high. the banking space in North Asia. While The private wealth and asset the year within the in-house financial the year did not start with the same management arms of investment banks services legal space with protracted volumes of hiring as we saw in Q4 2014, have also been very active, as the war for hiring processes and hiring approvals an appetite quickly returned across talent in this space continues to outstrip being somewhat delayed. the majority of functions within the supply. Lawyers with both private and Given the well-documented turmoil banks. As such, lawyers with derivatives public funds experience have been in of the China stock market and an experience (EQ & FI) found themselves particularly high demand, this being one earlier than usual Chinese New Year, in high demand for roles supporting of the key areas where Chinese language we have seen a significant increase in sales and trading businesses, as skills are a prerequisite. the appetite to hire moving into Q2 well as for private wealth and asset Generally speaking, the majority of roles across Banking, Insurance and Asset management platforms and non- have been at the vice president level, Management. This as a whole is due contentious regulatory roles, designed though we did see an increase in the to the strategic decisions on hiring to support the on-going global number of director level roles coming to needs across the businesses that are derivatives reform and implementation market in the summer and throughout committed to Asia and further growth of regulations in Asia (Dodd Frank Act, the second half of the year. The focus on in the region, as well as in-house EMIR) and equivalent regulations in internal relocation is still a priority, but is compensation rounds and bonuses Asian jurisdictions. simply not an option for the majority of being paid. This time of year will always There was some growth of IBD functions roles within the region. see a certain degree of movement in (ECM/DCM/M&A) across the region, the market as people look to capitalise usually a sign of confidence in the Insurance on receiving bonuses and moving at a market, though this dropped off towards Similar to the funds space, the insurance period that would allow for a greater the end of the year. 2016 has seen some industry remains a busy sector given the share of a pro-rata bonus in 2017. Below headcount reductions of legal teams level of competition between the major we have analysed developments in in this space. However, litigation and institutions and the relatively thin pool of these key areas and offer our forecast for investigations teams continued to grow, lawyers with non-contentious insurance the remainder of 2016. with demand for top-tier lawyers with experience or investment products 82www.hk-lawyer.org

84 April 2016 LEGAL MARKET experience. There remains a consistent The alternative fund and private equity and apart from a very small minority, flow of positions at the junior to mid- space has also been very active given replacement headcounts are also still level amongst Hong Kong businesses. the number of start-ups in the region coming to market. It is expected that At the regional level, volumes of alongside the expansion of existing processes will take slightly longer than recruitment have been quieter though businesses launching new funds and usual as additional global approvals are there have still been some interesting expanding into a wider range of asset sought. roles for senior M&A lawyers focusing on classes. The primary focus has been on Early indication around bonuses are that cross-border transactional work. those lawyers with solid fund formation the vast majority will be flat as with last experience though lawyers with a mix Asset Management year, with this being considered in the or more downstream transactional most part, a good result. A few European 2015 saw a dramatic increase in the experience have also found themselves houses of note have forecasted a smaller volume of hiring within the buy-side with good options. Chinese language bonus pool but these are in the minority. firms. Funds lawyers with retail and/ skills are not always a prerequisite for As has been the trend for the last few or alternatives experience have been these positions and often lawyers with years now, the award of bonuses has in high demand as institutions in this experience gained overseas will be become very much more subjective space become increasingly active across considered just as favourably. rather than being the norm for legal the region. We have also seen a number Outlook for 2016 teams. of European, US and PRC-based institutions establishing a presence in It has been an ominous start to 2016 Employers are continually looking for Hong Kong, which has put a further with continued uncertainty over Chinas new methods to ensure staff retention strain on what is already a very shallow economy and the increasingly depressed and we expect to see continued candidate pool. There is generally oil prices negatively affecting sentiment movement of compensation models always a requirement for candidates and levels of optimism in the market. towards higher base salaries and lower with Chinese language skills for these That said, we have been briefed on a variable components, as well as more roles given the level of interaction with number of new positions within the flexible working arrangements and regulators. financial services space already this year greater internal mobility. n www.hk-lawyer.org 83

85 April 2016 2016 Michael Allen Pure Search 2016 1 2 2016 2017 2016 2016 2015 2014 4 () 2015 "Dodd Frank Act" / "EMIR" ( //) n 84www.hk-lawyer.org

86 A new firm of Solicitors to be opened To support the operation of our establishment proposed to be opened in May to June 2016, we are looking for candidates to fill up the following posts:- (I) Partner (equity or salaried) Min. 7 years post qualification experience; Experienced in both contentious and non-contentious matters; Enthusiastic, mature, well organized, and capable of working and handling matters independently (II) Consultant Min. 3 years post qualification experience; Mature, proactive and able to handle files independently; Flexible working hours Full administrative supports will be provided to the right candidates with attractive package. Interested parties should send their CV by email to [email protected] Personal data provided by applicants will be treated in strict confidence and used exclusively for recruitment purposes only.

87 MICHAEL MICHAEL PAGE PAGE LEGAL LEGAL SPECIALISTS IN LEGAL RECRUITMENT MEET MEET THE THE TEAM TEAM Michael Page Legal services major corporates, international and leading local law firms, as well as financial services institutions on a global scale. Our consultants are Michael Page Legal services major corporates, international and leading local law firms, as well as financial services institutions on a global scale. Our consultants are strategically specialised in focusing on legal recruitment for different aspects of the job function and industry, diversifying and maximising our recruitment coverage strategically specialised in focusing on legal recruitment for different aspects of the job function and industry, diversifying and maximising our recruitment coverage as a team. We have successfully placed candidates across all levels from Associates and Junior Legal Counsels, to Partners and Heads of Legal. as a team. We have successfully placed candidates across all levels from Associates and Junior Legal Counsels, to Partners and Heads of Legal. Olga Olga Yung, Yung, Regional Regional Director, Director, Financial Financial Services Services Olga has been specialising in legal recruitment for over nine years, with a focus on financial services clients. She has an outstanding proven track record Olga has been specialising in legal recruitment for over nine years, with a focus on financial services clients. She has an outstanding proven track record in placing all levels of legal professionals, with a stronger focus on mid to senior level hires. Graduating with a Bachelor and Master degree in Law, Olga in placing all levels of legal professionals, with a stronger focus on mid to senior level hires. Graduating with a Bachelor and Master degree in Law, Olga possesses experience gained from international law firms prior to joining Michael Page. Olga has extensive networks across the in house sector and with in- possesses experience gained from international law firms prior to joining Michael Page. Olga has extensive networks across the in house sector and with in- depth knowledge of legal talent available within the region. She has also successfully recruited within the private practice space. depth knowledge of legal talent available within the region. She has also successfully recruited within the private practice space. [email protected] | +852 2848 4791 | linkedin.com/in/olgayung [email protected] | +852 2848 4791 | linkedin.com/in/olgayung Marta Marta Verderosa, Verderosa, Manager, Manager, Private Private Practice Practice James James Choi, Choi, Senior Senior Consultant, Consultant, In-House In-House Corporate Corporate Marta has over three years of legal recruitment experience, she James is admitted as a Solicitor in Hong Kong, having practiced Marta has over three years of legal recruitment experience, she James is admitted as a Solicitor in Hong Kong, having practiced covers all areas of practices for lawyers and legal support staff at with a reputable international law firm prior to joining Michael Page covers all areas of practices for lawyers and legal support staff at with a reputable international law firm prior to joining Michael Page entry to senior level for leading law firms in Hong Kong. She also and obtained his LLB degree with Kings College, London. With entry to senior level for leading law firms in Hong Kong. She also and obtained his LLB degree with Kings College, London. With oversees legal support hires for financial institution clients, and has his legal background and extensive network within the industry, oversees legal support hires for financial institution clients, and has his legal background and extensive network within the industry, recruited within the in house legal space. Marta is a LLB graduate and James has quickly established himself within the legal market, with recruited within the in house legal space. Marta is a LLB graduate and James has quickly established himself within the legal market, with worked as a Paralegal in one of the top firms and a global insurance repeat success in recruiting junior to senior lawyers across major worked as a Paralegal in one of the top firms and a global insurance repeat success in recruiting junior to senior lawyers across major company before joining Michael Page. in-house commercial and regulatory clients. His background has allowed him to company before joining Michael Page. in-house commercial and regulatory clients. His background has allowed him to truly understand the legal recruitment market and uniquely positions him to offer [email protected] | +852 2848 4794 | linkedin.com/in/ truly understand the legal recruitment market and uniquely positions him to offer [email protected] | +852 2848 4794 | linkedin.com/in/ commercial, consultative advice to both clients and candidates alike. martaverderosa commercial, consultative advice to both clients and candidates alike. martaverderosa [email protected] | +852 2848 4796 | linkedin.com/in/jameschoichikit [email protected] | +852 2848 4796 | linkedin.com/in/jameschoichikit Kristel Kristel Wong, Wong, Consultant, Consultant, Private Private Practice Practice Jimmy Jimmy Heng, Heng, Managing Managing Consultant, Consultant, In-House In-House Corporate Corporate Kristel specialises in recruiting lawyers across the private practice Jimmy has over 4 years legal and finance recruitment experience, Kristel specialises in recruiting lawyers across the private practice Jimmy has over 4 years legal and finance recruitment experience, market. Kristel graduated with an LLB from the London School of with a primary focus on in house commercial clients within Asia. market. Kristel graduated with an LLB from the London School of with a primary focus on in house commercial clients within Asia. Economics and Political Science and completed her LLM at Peking Within the team, Jimmys remit extends across junior to mid level Economics and Political Science and completed her LLM at Peking Within the team, Jimmys remit extends across junior to mid level University prior to joining Michael Page. She has experience working lawyers, and he has long standing work relationships with Head University prior to joining Michael Page. She has experience working lawyers, and he has long standing work relationships with Head with key decision makers across leading law firms in Hong Kong, of Legal and Human Resources Professionals across a variety of with key decision makers across leading law firms in Hong Kong, of Legal and Human Resources Professionals across a variety of including Partners and Human Resources professionals. In particular, industries with multinationals, state-owned enterprises, as well as including Partners and Human Resources professionals. In particular, industries with multinationals, state-owned enterprises, as well as her knowledge of the Greater China market has given her a great deal of success domestic private and listed companies in Hong Kong. Jimmys in-depth market her knowledge of the Greater China market has given her a great deal of success domestic private and listed companies in Hong Kong. Jimmys in-depth market working with leading local and international firms. She is extremely well-informed knowledge and extensive networks in the region allows him access to high-calibre working with leading local and international firms. She is extremely well-informed knowledge and extensive networks in the region allows him access to high-calibre about the legal market and is excellent in providing career advice to lawyers. candidates and clients. about the legal market and is excellent in providing career advice to lawyers. candidates and clients. [email protected] | +852 2848 4795 | linkedin.com/in/kristelwong [email protected] | +852 2848 3545 | linkedin.com/in/jimmyheng [email protected] | +852 2848 4795 | linkedin.com/in/kristelwong [email protected] | +852 2848 3545 | linkedin.com/in/jimmyheng IN IN HOUSE HOUSE CORPORATE CORPORATE SALARY SALARY INFORMATION INFORMATION 2016 2016 Salary rates below are not inclusive of Heads of Legal. There is often discretionary bonus offered and we have observed most candidates receiving around one to four months Salary rates below are not inclusive of Heads of Legal. There is often discretionary bonus offered and we have observed most candidates receiving around one to four months depending on the role / organization. For further information, please reach out to our specialist consultants. depending on the role / organization. For further information, please reach out to our specialist consultants. HK$ 000 (BASE SALARY) HK$ 000 (BASE SALARY) Experience 0-2 Years 3-4 Years 5-6 Years 7-9 Years 10-14 Years 15+ Years Experience 0-2 Years 3-4 Years 5-6 Years 7-9 Years 10-14 Years 15+ Years HK Listed & Private Companies (HK Coverage) 420-660 540-720 660-960 720-1,100 1,000-1,500 1,100-1,500+ HK Listed & Private Companies (HK Coverage) 420-660 540-720 660-960 720-1,100 1,000-1,500 1,100-1,500+ Multinationals (APAC Coverage) 480-720 660-840 720-1,020 960-1,500 1,100-1,600 1,500-2,000+ Multinationals (APAC Coverage) 480-720 660-840 720-1,020 960-1,500 1,100-1,600 1,500-2,000+ Legal Legal

88 PRIVATE PRIVATE PRIVATEPRACTICE PRACTICE PRACTICE IN-HOUSE, IN-HOUSE, IN-HOUSE,CORPORATE CORPORATE CORPORATE ININ INHOUSE, HOUSE, HOUSE,FINANCIAL FINANCIAL FINANCIALSERVICES SERVICES SERVICES Banking Banking Bankingand and andFinance Finance FinanceAssociate Associate Associate Assistant Assistant AssistantLegal Legal LegalCounsel Counsel Counsel Head Head Headofof ofLegal Legal Legal NQNQ- 4- 4PQE PQE 2 2- 5- 5PQE PQE 15+ 15+PQE PQE NQ - 4 PQE 2 - 5 PQE 15+ PQE Magic MagicCircle CircleFirm Firm Growing GrowingChinese ChineseConglomerate Conglomerate Leading LeadingFinancial FinancialInstitution Institution Magic Circle Firm Growing Chinese Conglomerate Leading Financial Institution Our Ourclient clientisislooking lookingforfora anewly newlyqualified qualifiedupuptoto4 4PQE PQE This Thisisisa anewly newlycreated createdposition positionwithin withinthe theinternational international Join Joinananestablished establishedfinancial financialinstitution institutionwith witha avariety variety Our client is looking for a newly qualified up to 4 PQE This is a newly created position within the international Join an established financial institution with a variety lawyer lawyertotojoinjointheir theirbanking bankingand andfinance financepractice. practice.This This arm armofofa asizable sizableChinese Chineseconglomerate. conglomerate.JoiningJoininga ateam teamofof ofof businesses businesses including including investment investment banking, banking, assetasset lawyer to join their banking and finance practice. This arm of a sizable Chinese conglomerate. Joining a team of of businesses including investment banking, asset Associate Associatewill willwork workclosely closelywithwiththe thepartners partnerstotoactactforfor three, three,you youwill willwork workclosely closelywith withthe theSenior SeniorLegal LegalCounsel Counsel management managementand andsecurities. securities.AsAsHead HeadofofLegal, Legal,you youwill will Associate will work closely with the partners to act for three, you will work closely with the Senior Legal Counsel management and securities. As Head of Legal, you will lenders lendersandandborrowers borrowersononsecured securedlending, lending,asaswellwellasas and anda acompany companysecretary. secretary.YouYouwill willbeberesponsible responsibleforfora a oversee oversee aa team teamofof five, five, reporting reporting into into the theCEO CEO andandworking working lenders and borrowers on secured lending, as well as and a company secretary. 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The successful with some knowledge in company secretarial matters. asset management is desired. Prior leadership experience candidate candidatemust mustbebefluentfluentininEnglish, English,Cantonese Cantoneseand and Proficiency Proficiencyininspoken spokenandandwritten writtenEnglish Englishand andChinese Chineseisisa a isishighly highlyregarded. regarded.Strong StrongEnglish Englishand andChinese Chineselanguage language candidate must be fluent in English, Cantonese and Proficiency in spoken and written English and Chinese is a is highly regarded. Strong English and Chinese language Mandarin. Mandarin.(Ref:(Ref:2965200). 2965200). must. must.(Ref:3193310). (Ref:3193310). skills skillsare arerequired. required.(Ref: (Ref:3198130). 3198130). Mandarin. (Ref: 2965200). must. (Ref:3193310). skills are required. (Ref: 3198130). Litigation Litigation Corporate Corporate CorporateCounsel Counsel LitigationLawyer Lawyer Lawyer Counsel Head Head Headofof ofLegal Legal Legal&& &Compliance Compliance Compliance 3 3- 7- 7PQE PQE 4 4- 8- 8PQE PQE 12+ 12+PQE PQE 3 - 7 PQE 4 - 8 PQE 12+ PQE Top-tier Top-tierInternational InternationalLaw LawFirm Firm Industry Industryleading leadingMNC MNC Financial FinancialServices ServicesGroup Group Top-tier International Law Firm Industry leading MNC Financial Services Group Our Ourclient clientisisseeking seekinga acapable capablejunior juniortotomid-level mid-levellitigator litigator AnAn exciting exciting opportunity opportunity toto bebepart partofof the the regional regional legal legalteam team AnAnexpanding expandingfinancial financialservices servicesgroup groupbeing beingSFCSFClicensed licensed Our client is seeking a capable junior to mid-level litigator An exciting opportunity to be part of the regional legal team An expanding financial services group being SFC licensed who whopossesses possessessolid solidcommercial commerciallitigation litigationexperience experience ofofananindustry-leading industry-leadingMNC MNChas hasarisen. arisen.You Youwill willreport reporttoto isiskeen keentototake takeonona aHead HeadofofLegal Legal& &Compliance. Compliance.WithinWithin who possesses solid commercial litigation experience of an industry-leading MNC has arisen. You will report to is keen to take on a Head of Legal & Compliance. Within totohelp helpstrengthen strengthentheir theirexpanding expandingpractice practiceininAsia.Asia.TheThe thetheHead HeadofofLegal Legaland andwork workalongside alongsidethree threeother otherlawyers, lawyers, the thecompany, company,they theyhave havebusinesses businessescovering coveringSecurities, Securities, to help strengthen their expanding practice in Asia. The the Head of Legal and work alongside three other lawyers, the company, they have businesses covering Securities, successful successfulcandidate candidatewill willjoin joina aleading leadinglitigation litigationteam teamand and being beingresponsible responsible forfor providing providing legal legaladvice advice ononHong Hong Kong Kong Futures, Futures,Asset AssetManagement, Management,and andCorporate CorporateFinance. Finance. successful candidate will join a leading litigation team and being responsible for providing legal advice on Hong Kong Futures, Asset Management, and Corporate Finance. gain gain exciting exciting opportunity opportunity totowork work alongside alongside major majorpartners partners lawlawandandother othercommon commonlaw lawjurisdictions. jurisdictions.You Youwillwilldraft draft Reporting ReportingtotothetheManaging ManagingDirector DirectorininHong HongKong, Kong,you youwill will gain exciting opportunity to work alongside major partners law and other common law jurisdictions. You will draft Reporting to the Managing Director in Hong Kong, you will within withinthethefield. field.You Youwill willsupport supportononvarious variousdisputes, disputes, andandreview reviewcommercial commercialcontracts contractsand andother otheragreements, agreements, work workclosely closelywith withthe thecorporate corporatefinance financebusiness, business,oversee oversee within the field. You will support on various disputes, and review commercial contracts and other agreements, work closely with the corporate finance business, oversee including includingshareholder shareholderdisputes disputesand andbreachbreachofoffiduciary fiduciary asaswell wellasasparticipate participateinincorporate corporate restructuring restructuringand and on-going on-going M&A M&A transactions transactions and and trade traderelated relatedinvestments, investments, including shareholder disputes and breach of fiduciary as well as participate in corporate restructuring and on-going M&A transactions and trade related investments, duties. duties.YouYoumustmustalsoalsobebea aHongHongKong Kongqualified qualifiedlawyer lawyer M&AM&Adeals, deals,real realestate estatematters, matters,company companysecretarial secretarial advise adviseononallallproducts productsasaswell wellasasensuring ensuringcompliance compliance duties. You must also be a Hong Kong qualified lawyer M&A deals, real estate matters, company secretarial advise on all products as well as ensuring compliance who whopossesses possesses3-7 3-7years yearsofofpost postqualification qualificationexperience. experience. work workand andadvise adviseononpotential potentialdisputes. disputes.The Thesuccessful successful with withlocal localregulatory regulatoryguidelines. guidelines.Familiarity Familiaritywith withSFC SFC who possesses 3-7 years of post qualification experience. work and advise on potential disputes. The successful with local regulatory guidelines. Familiarity with SFC Candidates Candidates withwith prior priortraining training and and related related work workexperience experience candidate candidatewill willhave haveatatleast least4 4years yearsofofpost-qualification post-qualification License LicenseTypes Types6 6andand9 9isispreferred. preferred.The Theideal idealcandidate candidate Candidates with prior training and related work experience candidate will have at least 4 years of post-qualification License Types 6 and 9 is preferred. The ideal candidate gained gained from fromleading leading international international lawlaw firms firms isis essential. essential. The The experience experienceobtained obtainedinina acommoncommonlaw lawjurisdiction, jurisdiction,withwith will willpossess possess1212years yearsPQE PQEwithwithstrong strongM&AM&Aexperience, experience, gained from leading international law firms is essential. The experience obtained in a common law jurisdiction, with will possess 12 years PQE with strong M&A experience, successful successful candidate candidate must must bebefluent fluent ininEnglish, English, Cantonese Cantonese corporate corporateexperience experiencegained gainedfromfromananinternational internationallaw law and andexposure exposureinintrade tradelaw lawwill willbebeuseful. useful.Strong StrongEnglish English successful candidate must be fluent in English, Cantonese corporate experience gained from an international law and exposure in trade law will be useful. Strong English firm, firm,and andisisfluent fluentininspoken spokenand andwritten writtenEnglish Englishand and and andChinese Chinesedrafting/reading/writing drafting/reading/writinglanguage languageskills skillsare are and andMandarin. Mandarin.(Ref: (Ref:3123840). 3123840). firm, and is fluent in spoken and written English and and Chinese drafting/reading/writing language skills are and Mandarin. (Ref: 3123840). Chinese. Chinese.Prior Priorregional regionalexposure exposureisisuseful. useful.(Ref:3071120). (Ref:3071120). required. required.(Ref: (Ref:3197170). 3197170). Chinese. Prior regional exposure is useful. (Ref:3071120). required. (Ref: 3197170). Corporate Corporate CorporateLawyer Lawyer Lawyer Legal Legal LegalCounsel Counsel Counsel Associate Associate AssociateGeneral General GeneralCounsel Counsel Counsel 3 3- 7- 7PQE PQE 6 6- 12 - 12PQE PQE 3 3- 8- 8Years YearsPQE PQE 3 - 7 PQE 6 - 12 PQE 3 - 8 Years PQE Leading LeadingInternational InternationalFirm Firm Prominent Prominenthealthcare healthcaregroup group Asset AssetManagement ManagementFirm Firm Leading International Firm Prominent healthcare group Asset Management Firm Our Ourclient clientisislooking lookingforfora ahighly highlycapable capableand andambitious ambitious Taking Takingonona aHeadHeadposition positionofofthetheLegal LegalDepartment Departmentwith with AsAsAssociate AssociateGeneralGeneralCounsel Counselofofthis thisleading leadingasset asset Our client is looking for a highly capable and ambitious Taking on a Head position of the Legal Department with As Associate General Counsel of this leading asset Corporate CorporateLawyerLawyerwith with3 3- -7 7years yearsofofpost postqualification qualification a aprominent prominenthealthcare healthcaregroup groupininHongHongKong, Kong,you youwill willlook look management managementfirm, firm,youyouwill willmanage manageallalllegal legalmatters mattersinin Corporate Lawyer with 3 - 7 years of post qualification a prominent healthcare group in Hong Kong, you will look management firm, you will manage all legal matters in experience. experience.This Thiscandidate candidatewill willbebeexpected expectedtotowork work after after44direct directreports reportsconsisting consisting ofoflawyers, lawyers, paralegals, paralegals, and and the theregion regionex-Japan ex-Japanand andAustralia. Australia.Reporting Reportingtotothe theHead Head experience. This candidate will be expected to work after 4 direct reports consisting of lawyers, paralegals, and the region ex-Japan and Australia. Reporting to the Head independently independently and andlook look after aftercorporate corporate transactions transactions across across a acompany companysecretary. secretary.Reporting Reportingdirectly directlytotothe theCEO, CEO,you you ofofLegal LegalAsia,Asia,youyouwill willprotect protectthe thefirms firmslegal legalinterests, interests, independently and look after corporate transactions across a company secretary. Reporting directly to the CEO, you of Legal Asia, you will protect the firms legal interests, Hong HongKongKongand andChina. China.YouYouwill willwork workalongside alongsidethe thehiring hiring will willbeberesponsible responsibleforfora arange rangeofoflegal legalmatters, matters,including including including including relationships relationships with withexternal external counsel counsel and andregulators regulators Hong Kong and China. You will work alongside the hiring will be responsible for a range of legal matters, including including relationships with external counsel and regulators partner partnerfocusing focusingmainly mainlyononprivate privateequity equityand andmergers mergers& & corporate corporatetransactions, transactions,general generalcommercial commercialagreements, agreements, inin the the region. region. You You will willalso alsoprepare prepare and and submit submit applications applications partner focusing mainly on private equity and mergers & corporate transactions, general commercial agreements, in the region. You will also prepare and submit applications acquisitions acquisitionsdeals.deals.This Thisisisananexcellent excellentopportunity opportunitywith with advising advisingononpotential potentialdisputes disputesasaswell wellasasadadhochocmatters matters totoregulators, regulators,support supportininongoing ongoingmaintenance maintenanceofofboth both acquisitions deals. This is an excellent opportunity with advising on potential disputes as well as ad hoc matters to regulators, support in ongoing maintenance of both promising promisingcareercareerprospects. prospects.Candidates Candidateswith withseniority seniority such suchasasemployment employmentand andintellectual intellectualproperty propertyissues. issues. local localandandcross crossborder borderfunds fundsforforregistrations registrationsacrossacrossHK, HK, promising career prospects. Candidates with seniority such as employment and intellectual property issues. local and cross border funds for registrations across HK, will willbebeconsidered consideredforforpartnership partnershiptrack. track.The Thesuccessful successful This Thisisisa adynamic dynamicposition positionand andthethesuccessful successfulcandidate candidate Singapore, Singapore,Taiwan,Taiwan,SouthSouthKorea Koreaand andPRC PRC(QDII(QDII/ /QFII QFII/ / will be considered for partnership track. The successful This is a dynamic position and the successful candidate Singapore, Taiwan, South Korea and PRC (QDII / QFII / candidate candidatewill willpossess possesssubstantial substantialrelevant relevantexperience experienceinin will willhave havea aminimum minimumofof6 6years yearsofofpost-qualification post-qualification RQFII RQFII/ MRF). / MRF).Those Thosewithwithgood goodexposure exposureininworking workingwith with candidate will possess substantial relevant experience in will have a minimum of 6 years of post-qualification RQFII / MRF). Those with good exposure in working with corporate corporatetransactions, transactions,with withability abilitytotowork workautonomously autonomously experience, experience,ideally ideallywith within-house in-houseexperience experienceand andhave have SFC SFCfund fundauthorization authorizationand andgeneral generalasset assetmanagement management corporate transactions, with ability to work autonomously experience, ideally with in-house experience and have SFC fund authorization and general asset management asaswell wellasaswith withleading leadinginternational internationallaw lawfirms firmsexposure. exposure. worked workedwith withleading leadinglaw lawfirms firmsininthe thepast. past.High Highattention attention experience experiencewill willbebehighly highlyregarded. regarded.Chinese Chineselanguage language as well as with leading international law firms exposure. worked with leading law firms in the past. High attention experience will be highly regarded. Chinese language Excellent Excellentcommunication communicationskills skillsininEnglish Englishand andChinese Chineseisisa a totodetail, detail,strong strongleadership leadershipskills skillsandandthetheability abilitytotobebe skills skillsare arerequired. required.(Ref: (Ref:3124220). 3124220). Excellent communication skills in English and Chinese is a to detail, strong leadership skills and the ability to be skills are required. (Ref: 3124220). must. must.(Ref: (Ref:2965320). 2965320). commercially commercially savvy savvy isis very veryimportant. important. Excellent Excellentwritten written and and must. (Ref: 2965320). commercially savvy is very important. Excellent written and spoken spokenEnglish EnglishandandChinese Chineseisisrequired. required.(Ref:(Ref:3188070). 3188070). spoken English and Chinese is required. (Ref: 3188070). ToToapply, apply,visit visitwww.michaelpage.com.hk/apply www.michaelpage.com.hk/applyquoting quotingthe thereference referencenumber numberororcontact contactour ourconsultants. consultants. To apply, visit www.michaelpage.com.hk/apply quoting the reference number or contact our consultants. Specialists Specialists Specialistsinin inlegal legal legalrecruitment recruitment recruitment www.michaelpage.com.hk www.michaelpage.com.hk www.michaelpage.com.hk

89 In-House In-House Private Private Practice Practice prIvate BaNKING - HeaD HoNG KoNG 10+ years DIspute resoLutIoN HoNG KoNG 4+ years prIvate BaNKING - HeaD HoNG KoNG 10+ years DIspute resoLutIoN HoNG KoNG 4+ years Global bank with strong presence in Asia is offering an opportunity for a Well-established offshore law firm with a growing disputes practice in HK is Global bank with strong presence in Asia is offering an opportunity for a Well-established offshore law firm with a growing disputes practice in HK is senior lawyer to head up the legal support function for its private wealth looking for a mid-senior level disputes lawyer. Commonwealth qualification senior lawyer to head up the legal support function for its private wealth looking for a mid-senior level disputes lawyer. Commonwealth qualification business. PE/wealth management experience from a financial institution & & strong litigation experience with a reputable international law firm required. business. PE/wealth management experience from a financial institution & & strong litigation experience with a reputable international law firm required. fluent Chinese required. Banking regulatory experience useful. HKL5846 Prior offshore experience/UK experience useful. HKL5715 fluent Chinese required. Banking regulatory experience useful. HKL5846 Prior offshore experience/UK experience useful. HKL5715 HeaD oF coMpLIaNce sINGapore 10+ years corporate coMpLIaNce (part-tIMe) HoNG KoNG 4-8 years HeaD oF coMpLIaNce sINGapore 10+ years corporate coMpLIaNce (part-tIMe) HoNG KoNG 4-8 years Leading Asia-based asset manager seeks a senior compliance professional Magic Circle law firm offers part-time/regular hours to a lawyer with Leading Asia-based asset manager seeks a senior compliance professional Magic Circle law firm offers part-time/regular hours to a lawyer with to head its compliance function. You will have prior familiarity with regulatory corporate transactions experience. The successful candidate will be the to head its compliance function. You will have prior familiarity with regulatory corporate transactions experience. The successful candidate will be the matters relating to more than one of the SFC, MAS & FSA & will ideally go-to person on listing rules compliance matters & supervise associates on matters relating to more than one of the SFC, MAS & FSA & will ideally go-to person on listing rules compliance matters & supervise associates on have experience with an asset manager in Asia. HKL5845 compliance issues. HKL5861 have experience with an asset manager in Asia. HKL5845 compliance issues. HKL5861 FuNDs sINGapore 5-10 years corporate M&a HoNG KoNG 3-5 years FuNDs sINGapore 5-10 years corporate M&a HoNG KoNG 3-5 years Alternative asset manager with strong Asia presence is looking for a mid- Global international firm seeks a corporate lawyer with HK M&A experience Alternative asset manager with strong Asia presence is looking for a mid- Global international firm seeks a corporate lawyer with HK M&A experience senior level legal counsel for its Singapore office. Experience in private for its HK office. You will work with well-established partners & a team senior level legal counsel for its Singapore office. Experience in private for its HK office. You will work with well-established partners & a team funds formation, negotiation of the entire suite of documents & regulatory of quality fee-earners. You will have 3-5 years of experience from an funds formation, negotiation of the entire suite of documents & regulatory of quality fee-earners. You will have 3-5 years of experience from an matters required. Chinese skills are not essential. HKL5835 international firm, as well as Cantonese & Mandarin essential. HKL5431 matters required. Chinese skills are not essential. HKL5835 international firm, as well as Cantonese & Mandarin essential. HKL5431 reGuLatory HoNG KoNG 5-8 years FuNDs/corporate sINGapore 2-6 years reGuLatory HoNG KoNG 5-8 years FuNDs/corporate sINGapore 2-6 years Well-known financial services firm seeks a mid-level lawyer to handle Top offshore firm seeks an associate for its expanding office in Singapore. Well-known financial services firm seeks a mid-level lawyer to handle Top offshore firm seeks an associate for its expanding office in Singapore. regulatory matters, particularly regulatory issues in relation to its brokerage Funds experience is highly sought after while M&A & corporate lawyers regulatory matters, particularly regulatory issues in relation to its brokerage Funds experience is highly sought after while M&A & corporate lawyers business. Experience gained from an international firm &/or financial would be considered. Offshore experience advantageous & Commonwealth business. Experience gained from an international firm &/or financial would be considered. Offshore experience advantageous & Commonwealth institution ideal. Fluent English & Mandarin skills essential. HKL5826 qualified candidates with Asia experience welcomed. HKL3791 institution ideal. Fluent English & Mandarin skills essential. HKL5826 qualified candidates with Asia experience welcomed. HKL3791 coNsuMer BaNKING, vp HoNG KoNG 5-8 years tMt HoNG KoNG 2-6 years coNsuMer BaNKING, vp HoNG KoNG 5-8 years tMt HoNG KoNG 2-6 years Global bank seeks a mid-level lawyer with experience in investment A leading international firm is offering an excellent opportunity to a Global bank seeks a mid-level lawyer with experience in investment A leading international firm is offering an excellent opportunity to a products, retail banking &/or financial services regulatory matters. General Mandarin-speaking mid-level TMT associate to join its tier-one practice products, retail banking &/or financial services regulatory matters. General Mandarin-speaking mid-level TMT associate to join its tier-one practice banking lawyers & financial services litigators will be considered. Fluent in HK. Experience with IT advisory, sourcing & transactions along with banking lawyers & financial services litigators will be considered. Fluent in HK. Experience with IT advisory, sourcing & transactions along with English & Cantonese are required. HKL5843 commercial agreements & contracts is a must. HKL5756 English & Cantonese are required. HKL5843 commercial agreements & contracts is a must. HKL5756 coMpLIaNce / coMMercIaL HoNG KoNG 5-8 years corporate HoNG KoNG 2-3 years coMpLIaNce / coMMercIaL HoNG KoNG 5-8 years corporate HoNG KoNG 2-3 years Great opportunity to join this international education provider. Reporting to Magic Circle firm seeks a junior corporate lawyer to join a top tier practice Great opportunity to join this international education provider. Reporting to Magic Circle firm seeks a junior corporate lawyer to join a top tier practice the Head of Legal, you will handle compliance matters of the Group, data to handle IPOs, M&A & general compliance matters. Strong corporate the Head of Legal, you will handle compliance matters of the Group, data to handle IPOs, M&A & general compliance matters. Strong corporate privacy & general commercial matters. Excellent drafting & communication experience required & candidates from Singapore/London/Australia/New privacy & general commercial matters. Excellent drafting & communication experience required & candidates from Singapore/London/Australia/New skills & prior in-house compliance experience essential. HKL5828 Zealand are welcome to apply. Fluent Mandarin essential. HKL5860 skills & prior in-house compliance experience essential. HKL5828 Zealand are welcome to apply. Fluent Mandarin essential. HKL5860 INsuraNce LeGaL HoNG KoNG 7+ years BaNKING HoNG KoNG NQ-3 years INsuraNce LeGaL HoNG KoNG 7+ years BaNKING HoNG KoNG NQ-3 years Global insurance company seeks a mid-senior level lawyer to handle non- Excellent opportunity for a junior banking & finance lawyer to join a market- Global insurance company seeks a mid-senior level lawyer to handle non- Excellent opportunity for a junior banking & finance lawyer to join a market- contentious insurance matters. Prior in-house experience & knowledge leading finance team to handle a broad range of banking & finance matters. contentious insurance matters. Prior in-house experience & knowledge leading finance team to handle a broad range of banking & finance matters. of insurance products essential. Insurance related regulatory experience International law firm training &/or qualified with a strong banking & finance of insurance products essential. Insurance related regulatory experience International law firm training &/or qualified with a strong banking & finance advantageous. Fluent English & Cantonese required. HKL5859 team required. Cantonese & Mandarin required. HKL4751 advantageous. Fluent English & Cantonese required. HKL5859 team required. Cantonese & Mandarin required. HKL4751 This is a small selection of our current vacancies. Please refer to our website for a more comprehensive list of openings. This is a small selection of our current vacancies. Please refer to our website for a more comprehensive list of openings. Please contact Emily Lewis, [email protected] +852 2537 7408 or Eleanor Cheung, [email protected] +852 2537 7416 Please contact Emily Lewis, [email protected] +852 2537 7408 or Eleanor Cheung, [email protected] +852 2537 7416 Karishma Khemaney, [email protected] +852 2537 0895 or email [email protected] Karishma Khemaney, [email protected] +852 2537 0895 or email [email protected] www.lewissanders.com www.lewissanders.com

90 trust | honesty | integrity | partnership Corporate Counsel Arbitration FS Regulatory 4+ PQE Hong Kong 1+ PQE Hong Kong 4-6 PQE Hong Kong International tax & business advisory firm seeks Stellar opportunity for a HK qualified junior lawyer This leading US law firm seeks a disputes a competent mandarin speaking corporate to join this globally recognised arbitration practice lawyer with solid FSR experience gained from lawyer to take on a legal role working closely as it continues to go from strength to strength. an international law firm. You will work with with the business. You will be HK qualified with You will work on a mix of litigation, complex eminent partners within a collegiate team on international business exposure. Offshore tax and high profile arbitrations. Mandarin required. high profile matters. Common law qualification planning experience would be a bonus. Proven Candidates without arbitration experience will be required, mandarin preferred. Candidates willing marketing and BD skills required. HKL4057 considered. HKL4029 to relocate will also be considered. HKL4024 Banking & Finance Intellectual Property Insolvency & Restructuring NQ+ PQE Hong Kong 2+ PQE Hong Kong 3-5 PQE Hong Kong This top US law firm has a fantastic opportunity Our client is consistently ranked as one of the This leading US law firm seeks a disputes for a Mandarin speaking NQ or junior lawyer leading IP practices in the region and they are lawyer to work for this highly regarded partner keen to focus on B&F to work for this pre- now seeking a junior to mid-level IP lawyer to on contentious and non-contentious advisory eminent partner on a range of leveraged join the HK team and advise on a broad range of and complex disputes and general commercial and acquisition finance matters for financial issues closely related areas such as e-commerce, disputes in a collegiate environment. institutions, corporations and PE sponsors. data protection. The ideal candidate will have Candidates will be common law qualified and Common law qualification essential. HKL4017 Cantonese and Mandarin skills. HKL4045 ideally have Mandarin. HKL4012 FCPA/Litigation US Securities Corporate M&A/IPO 3-5 PQE Hong Kong 2-5 PQE Hong Kong 1+ PQE Hong Kong This global law firm is looking for a litigation This is a stellar opportunity for a senior A fantastic opportunity for a lawyer to become lawyer with solid experience to join its elite associate to join this notable practice and work part of this renowned practice with this US law team. Experience in FCPA, anti-bribery, or anti- alongside a reputable partner. You will work on firm. Your work will include focusing on a range corruption experience would be highly valuable. corporate finance transactions, private equity of IPO and innovative M&A transactions on a Any other investigatory experience will also be financing, restructurings and cross-border global scale assisting highly-regarded partners. considered. Common law or US qualification merger & acquisition transactions. Mandarin You will be Hong Kong qualified. Mandarin desired. HKL4043 language skills essential. HKL4041 language skill essential. HKL4022 Restructuring Debt Capital Markets M&A/PE 1-5 PQE Hong Kong 3-5 PQE Hong Kong 2+ PQE Hong Kong This is a superb opportunity for a non- This is a fantastic opening for a lawyer to join This is an outstanding opportunity for an contentious restructuring lawyer to join this top a leading international practice and to work associate with solid experience gained at an tier law firm and its established team. You will on a variety of global debt capital markets international law firm. You will join this top tier work on high profile and complex matters with transactions advising issuers and underwriters, firm to focus on M&A/PE and China outbound a broad client base across the globe. This is a amongst a collegiate and professional team. US transactions. You will be Hong Kong qualified. great opportunity for a common law qualified qualification required for this role; Mandarin is PRC lawyers admitted to the US bar will also be lawyer looking to relocate to Asia. HKL4038 preferred. HKL4025 considered. HKL4031 Commercial Litigation Asset Finance Corporate M&A 3+ PQE Hong Kong 3+ PQE Hong Kong/China 1+ PQE Shanghai This renowned litigation team within the An individual preferably with exposure to A truly fantastic opportunity for a corporate global law firm arena seeks an experienced aviation finance is sought to join this market lawyer looking for an entrepreneurial platform litigation lawyer to work on a variety of complex leading practice to work on leasing and to take their career to the next level. You commercial disputes, supported by a prominent financing transactions. Candidates will have will join a collegiate team and be supported partner in a close-knit team. Candidates with a experience gained at a strong finance practice by prominent partners to work on cross- specific disputes focus will also be considered. within a recognised firm, proficiency in either border transactions and more. Mandarin skills Language skills needed. HKL3978 Cantonese or Mandarin a plus. HKL4008 preferred. HKL3991 Debt Capital Markets Funds Capital Markets 4-6 PQE Tokyo 3-5 PQE Shanghai/Beijing 1+ PQE Shanghai/Beijing This is an exceptional opportunity for a mid- This eminent law firm seeks a common law or A truly excellent opportunity for a lawyer with level lawyer to join a top tier US law firm to US qualified funds associate to join their premier solid capital markets experience gained at an work on a variety of global debt capital markets practice. You will work for high profile clients on a international law firm to work on sizeable IPO transactions as well as OTC derivatives and variety of private investment funds. You will have transactions and equity offerings. Experience in more. You will work alongside eminent partners solid experience in fund formation ideally both general corporate M&A work would be highly in a collegiate environment. You will be England USD and RMB funds. M&A/PE experience a plus, advantageous; Mandarin skills required. US bar and wales qualified. HKL4036 Mandarin skills needed. HKL4034 qualification a valuable addition. HKL4032 This is a selection of our current vacancies; for more information in complete confidence, please call the Hong Kong office on +852 2503 2500 or email us at [email protected] or [email protected] www.atticus-legal.com

91 SPECIALIST PROFESSIONAL RECRUITMENT LEGAL & COMPLIANCE PROFESSIONALS FINANCIAL SERVICES LEGAL COUNSEL HEAD OF LEGAL, APAC GROWING FIN TECH GROUP INTERNATIONAL BANKING GROUP OAA/424130 OAA/426500 This Hong Kong listed company is looking for a mid level lawyer to join the A large American bank is seeking a new Head of Legal for APAC. The business team. Reporting directly to the General Counsel and being part of a team of four, is diverse and spans capital markets, corporate and investment banking. you will be involved in a mixture of general corporate and commercial work as Working alongside a separate compliance team, you will be the sole lawyer for they grow the business, as well as product focused work as they develop their the region, covering Hong Kong, China, Australia, Japan and Singapore. You platform. The General Counsel is happy to provide extensive training to the right will sit on all APAC management committees and be an integral member of the candidate and is looking for someone with excellent drafting and negotiation APAC business. skills more then a very specific products background. Key Requirements: Key Requirements: a minimum of 10 years PQE; Commonwealth qualified, ideally coming from two to six years PQE; Hong Kong qualified, ideally coming from an an international financial service or law firm international law firm extensive capital markets experience preferred; exposure to general banking extensive corporate and capital markets experience, including exposure to and finance will also be considered PRC entities and clients experience working in-house in a senior role is highly advantageous ability to pick up new skills and products and look at legal issues from a Chinese language skills are beneficial but not essential commercial viewpoint fluency in written and spoken English and Mandarin FINANCIAL SERVICES AML, VICE PRESIDENT SENIOR COMPLIANCE OFFICER AMERICAN BANKING GROUP BOUTIQUE INVESTMENT FIRM QPD/432630 ONR/431090 This top-tier American banking group is seeking an AML expert to join their A rapidly growing Hong Kong based investment firm is looking for a senior financial crime department as the MLRO for the Hong Kong branch. You compliance professional to join their team. The firm is currently growing their will be the main contact point for the local regulatory bodies and advise the retail fund platform and will be looking for someone with fund expertise to join management on AML and compliance matters. You will also perform an AML their team. Reporting directly to the General Counsel, you will be part of a advisory function across the region. team of six legal and compliance professionals and will play a key role in their expanding business. Key Requirements: substantial AML experience in Hong Kong and extensive knowledge on the Key Requirements: legal and regulatory regime a minimum of eight to ten years compliance experience wholesale banking background desirable experience in the retail fund space experience in dealing directly with HKMA and SFC fluency in written and spoken English and Mandarin Chinese languages are beneficial but not essential COMMERCE & INDUSTRY LEGAL COUNSEL LEGAL COUNSEL EUROPEAN FASHION BRAND GLOBAL TALENT MANAGEMENT FIRM EQA/428860 EQA/633010 This European fashion brand famous for its design, clothing, accessories This global talent management firm with expanding operations in AMEA is and leather goods, is seeking a Legal Counsel to join the Hong Kong office. seeking a Legal Counsel to join their team based in Hong Kong. Reporting to Reporting to the CFO, you will be responsible for a variety of corporate the Head of Legal, you will be responsible for a wide range of general corporate, commercial work in Hong Kong, China and other jurisdictions in the APAC commercial and employment matters for the Group in the APAC region. region. Key Requirements: Key Requirements: a minimum of four years PQE; Commonwealth qualified, ideally coming from a minimum of three years PQE; ideally coming from an international law firm an international law firm or a multinational corporation well-versed in both HK and PRC laws, regulations, and exposure to a variety extensive corporate commercial experience with exposure to a variety of of commercial contracts business contracts and agreements in different jurisdictions in the APAC possess general corporate, conveyancing and leasing experience in Hong region Kong and China exposure to employment law will be highly advantageous fluency in written and spoken English and Mandarin Chinese languages are beneficial but not essential TO FIND OUT MORE ABOUT THESE EXCITING LEGAL & COMPLIANCE CAREER OPPORTUNITIES, PLEASE CONTACT: Oliver Allcock +852 2103 5317 [email protected] Ricky Mui +852 2103 5370 [email protected] Estefania Altuve +852 2103 5328 [email protected] Adeline Heng +852 2103 5365 [email protected] Megan Craighead +852 2103 5377 [email protected] www.robertwalters.com.hk ROBERT WALTERS HONG KONG 20/F NEXXUS BUILDING 41 CONNAUGHT ROAD CENTRAL CENTRAL HONG KONG

92 Hong Kong Singapore Beijing Shanghai Specialising in Legal, Financial Services, and Commerce Private Practice In-house TELECOMMUNICATIONS HONG KONG 6-10 PQE EMPLOYMENT HONG KONG 5-10 PQE This leading international firm is looking to develop its digital/ Top-tier investment bank seeks an employment lawyer to support telecommunications practice in Asia. You will advise on a broad their regional Employment Relations team. Great opportunity to range of matters within data protection, financial technology work closely with HR and business management and provide strate- and digital. Overseas based candidates will be considered. (HKL gic and pragmatic operational advice on all aspects of employment 13417) matters. Chinese language is not required. (HKL 13572) CORPORATE HONG KONG 8+ PQE REGIONAL LEGAL COUNSEL HONG KONG 4-8 PQE This well-known international firm is looking to expand its corpo- Opportunity to join a well-regarded global insurance company pro- rate team and is currently seeking a senior corporate lawyer. The viding legal support on M&A, regulatory and general commercial ideal candidate must have strong corporate experience and be matters across the Asia region. The team is well established and of- developing good contacts. Very good partnership prospects on fers a collegiate environment. Mandarin required. (HKL 13551) offer. Fluency in Chinese required. (HKL 13447) REGULATORY LAWYER HONG KONG 4-8 PQE FUNDS HONG KONG 3-8 PQE Leading financial institution has a vacancy for a regulatory counsel Leading offshore law firm seeks a funds lawyer to join their ex- to assist on all regulatory matters affecting the group. As part of legal panding team in Hong Kong. Lawyer with funds experience is team, you will work closely with compliance and the general counsel ideal, but general corporate or finance associate from a leading and provide full support on regulatory changes and developments. onshore law firm will also be considered. Chinese language not Fluency in Cantonese and Mandarin is required. (HKL 13177) required. (HKL 13489) EQUITIES HONG KONG 4-6 PQE BANKING/FINANCE HONG KONG 4-7 PQE This global investment bank is seeking an intelligent and driven OTC A well-established international law firm seeks a banking/fi- equity derivatives lawyer to take a lead role within their transaction nance associate. Experience gained in general banking, syndi- management team. VP level opportunity. Chinese not required for cated lending, project financing, and structured finance will be this role. We will consider lawyers from a DCM or ICM background. considered. (HKL 13434) (HKL 13231) CORPORATE M&A/PE HONG KONG/SHANGHAI 2-6 PQE M&A HONG KONG 5+ PQE Global law firm with a top tier corporate M&A and private eq- An international financial services company seeks a mid-senior level uity practice in the region seeks a lawyer with strong transac- M&A legal counsel to support their legal team. Primary focus is on tional experience to join their team led by prominent partners in mergers and acquisitions, but will also involve provision of legal ad- the region. Strong Mandarin language skills are necessary. (HKL vice to different business functions. Good command of written and 13567) spoken English and Chinese required. (HKL 13402) INSOLVENCY HONG KONG/SINGAPORE 2-8 PQE LEGAL MANAGER HONG KONG 5+ PQE Major global firm is looking for a mid-level restructuring & insol- A well-known family enterprise has additional headcount to appoint vency lawyer for either the Hong Kong or Singapore offices. This a mid-level lawyer to support their group. Working closely with the role will involve both contentious and non-contentious matters, general counsel you will assist on a wide range of commercial mat- including some general and corporate work as well. Candidates ters, contracts and agreements. Strong commercial background re- who are qualified in Australia, England & Wales, Hong Kong or quired and familiarity with drafting contracts. Fluency in both Eng- Singapore will be considered. (HKL 13436) lish and Chinese language skills is required. (HKL 13490) EMPLOYMENT HONG KONG 1-4 PQE LEGAL COUNSEL HONG KONG 3+ PQE Top tier employment practice seeks a driven and talented law- A conglomerate is looking for a junior to mid-level legal counsel to yer to join their Hong Kong office. The ideal candidate will have support their business in Hong Kong and China. You will support the solid experience in employment/commercial litigation practice. group on a broad range of legal matters, including general corporate, This role will involve in a mix of contentious and non-contentious commercial, employment, IT, IP and litigation. Good drafting skills in work in all aspect of employment-related issues. Fluency in both both English and Chinese required. (HKL 13324) written and spoken English and Chinese required. (HKL 13446) www.alsrecruit.com To apply, please send your updated resume to [email protected], or contact one of our Legal Consultants in Hong Kong: Claire Park Georgeanna Mok Kumiko Lam William Chan Tel: +852 2920 9134 Tel: +852 2920 9101 Tel: +852 2920 9125 Tel: +852 2920 9105 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]

93 Newly Qualified Lawyers: Steer your career from the very beginning Access the best NQ legal roles in the market, together with professional CV and interview advice, by contacting Pure today. Our specialist legal consultants can offer you bespoke career guidance, including salary advice, providing you with the knowledge to make an informed decision about the direction of your career. Corporate NQ UK Law Firm Banking & Finance NQ Silver Circle Law Firm A highly regarded UK law firm is offering an exciting A prestigious Silver Circle law firm is seeking a opportunity to join its corporate practice here newly Hong Kong qualified lawyer to join its finance in Hong Kong. The role offers broad exposure practice. The firm has a prominent client base to a variety of corporate transactions and the and will offer a junior lawyer exposure to a range chance to gain in-house experience as part of a of finance matters, including secured financings, client secondment to a well-known multinational structured and asset finance work, leveraged and company. The client is seeking a newly Hong Kong acquisition finance. A strong academic background qualified lawyer with previous corporate experience. and trilingual language ability are required. Language skills in both Mandarin and Cantonese are required for this position. Victoria Adnan +852 2520 5078 | [email protected] Pure Search - leaders in global search & selection | Hong Kong | London | New York |

94 Revolutionising Legal Recruitment Why Oliver James Associates? Global Relocation specialists for Clients throughout Asian Resources Private Practice lawyers nancial centers Trusted & experienced Personal & professional Unparalleled network consultants relocation support for families of top-tier clients Experts in sourcing candidates from overseas markets Specialists in relocating lawyers within Asia 47 10 255 44 PLACED LAWYERS IN INTERNATIONAL ACTIVE CANDIDATES PRIVATE PRACTICE LAST 13 MONTHS RELOCATIONS IN THE GLOBALLY SEEKING CLIENTS IN HONG KONG PAST 4 MONTHS OPPORTUNITIES IN ASIA

95 Considered developing your career elsewhere in Asia? China Singapore South Korea China is a powerhouse economy, a vast The countries within South East Asia are With more than 25 international rms now country with ample opportunities in dierent developing very quickly and Singapore represents having a presence in Seoul, the opportunities cities for lawyers at all levels. The huge increase its nancial hub .Signicant disciplines in for top tier work is on the rise. As the market in outbound investment into; Europe, Africa Private Practice involve; Banking & Finance, prepares for the nal stage of the liberalisation, and Australia has created a pressing need for Corporate, Capital Markets and Litigation and rms are ramping up the operations to expand quality commercial lawyers. Firms traditionally with many South East Asian nations developing their foothold in the country. We have solid struggle to nd the right talent for these their infrastructure and power resources we are working relationships with a number of these locations, Beijing in particular, so the lawyers seeing huge demand for projects lawyers too. rms, and understand the strategic aims of who do take this leap of faith experience an Commercial lawyers admitted in international their practice ahead of the market opening unparalleled opportunity. Valued as a key jurisdictions have fantastic career opportunity in completely this year (UK rms), and the middle asset to even the most prestigious of rms, Singapore and with the average age of Partners of 2017 (US rms). The majority of the $2.5 and often having the opportunity to fast track here being signicantly younger, career paths billion legal industry focuses on; M&A, Banking, their career due to the lack of competition for can gather pace far quicker. The quality of life Capital Markets, IP and Litigation. With this in senior places. If you feel your long term career in Singapore is high, opportunities to travel for mind, if you are interested in developing your prospects are looking bleak and partnership work and personal life are in abundance. If youre career in Korea and specialise in one of the is not a possibility, then consider a relocation, looking for a fresh start in an established yet aforementioned disciplines, we would like to consider PRC. Please contact Arron Leale for evolving market, then Singapore could be the hear from you. Please contact Arron Leale for more information. location for you. Please contact Sam Mattey. more information. Projects Associate Projects Construction Lawyer Banking Associate Wall Street Firm Wall Street Firm US Firm Shanghai - Salary, RMB 110,000+ p/m $12,000 - $15,000 USD p/m Seoul - Salary, KRW 15.6 Million+ p/m 3-5 PQE UK, US, HK qualied 2-5 PQE - UK, US, HK, SING, AUS qualied NQ-3 PQE UK, AUS, US, HK qualied Mandarin & English skills needed English language skills only Korean language skills needed Corporate Associate (M&A/IPO) Projects Finance Lawyer Projects Associate UK Magic Circle Firm UK Magic Circle Firm Wall Street Firm Beijing - Salary, RMB 93,000+ p/m Salary, S$13,000 S$19,000 p/m Seoul - Salary, KRW 18.5 Million+ p/m 4+ PQE UK, US, HK or AUS qualied 2-4 PQE - UK, US, HK qualied 2-5 PQE UK, AUS, US, HK qualied Mandarin & English skills needed English Language skills only Korean language skills needed Not able to relocate? Prefer to develop your career in Hong Kong? Wed still like to hear from you! Corporate lawyer (M&A/PE) Banking & Finance Lawyer Asset Finance Lawyer (Aviation or Shipping) Wall Street Firm Leading US Firm Global Firm Salary, HKD 130,000+ p/m + COLA Salary, HKD 140,000+ p/m Salary, HKD 75,000+ pm 3-5 PQE - UK, US, HK qualied 4-5 PQE - UK, US, HK qualied 1-5 PQE - UK, US, HK, SING or AUS qualied English & Mandarin skills needed English & Mandarin skills needed English & Mandarin skills needed Get in touch with one of our team Jonny Plews - Director Sam Mattey Jessica Nield +852 5804 9200 +65 3109 1781 +1 646 833 2678 [email protected] [email protected] [email protected] Arron Leale Theodore Morris David Walsh +852 5804 4068 +852 5804 9092 +44 (0)207 310 8731 [email protected] [email protected] [email protected] oliver-james-associates www.ojassociates.com @OJAssociatesHK

96 LEGAL CAREER and EDUCATION DEVELOPMENT Sponsored Supplement April 2016

97 LEGAL CAREER and EDUCATION DEVELOPMENT Sponsored Supplement April 2016 TABLE OF CONTENTS CityU Introduces Prospective Enrollees to Its Unique Strengths 2 HKU Launches a Pioneering LLM Programme 4 Major, Lindsey & Africa - Law Firm Associate Hiring Matters to Consider in Todays Legal Market 6 Hong Kong Shue Yan University Master of International Law 9 Thomson Reuters Hong Kong Limited 10/F, Cityplaza 3, Taikoo Shing, Hong Kong Tel: +852 2847 2088 www.thomsonreuters.com ISSN 1025-9554 Copyright is reserved throughout. No part of this publication can be reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as Hong Kong Lawyer can accept no responsibility for loss.

98 Legal Career and Education Development 1

99 Master of Laws (LLM) Programme at CityU Introduces Prospective Enrollees to Its Unique Strengths By Mark Warburton Dr. Ding Chunyan, the LLM programme leader A lmost a year ago, Hong Kong Lawyer interviewed the three deans of Hong Kongs major law schools. The chief aim of Dean Howells (CityU), in particular, was to design programmes that armed students We employ nine dedicated professors, specialising in corporate law and commercial law, who are well-versed in the stream-required electives.The admission to this new stream is based on the existing with practical, business-orientated skills, interdisciplinary awareness, general LLM entrance requirements. and opportunities to operate within a global network. Clearly, Howells pre-empted the need for academic innovation and course 2. Why should prospective LLM students enroll in this restructuring in the face of accelerated change. This year, at CityU, programme? the LLM programme looks to build upon the ethos Dean Howells Firstly, based on their own interests and future career plan the delineated back in 2015. prospective LLM students will have a chance to flexibly select courses focusing on corporate and commercial law from a list of stream required CityU has deepened its links with working lawyers and firms, and electives. Secondly, the new stream not onlyequipsstudents witha built stronger ties with leading laws schools across the globe. The well-grounded, theoreticalunderstanding about law specialisms, but department acknowledges the value of the long-standing educational also provides them chances to learn from corporate and commercial ties between China and France, and maintains a collaborative law practitioners, who will be invited to be guest speakers and/or part- agreement with law departments at both Aix-Marseille University and time lecturers. Thirdly, based on the schools glowing reputation in University Paris 1 Panthon-Sorbonne. Avoiding a parochial attitude Chinese andcomparative law, students selecting the newstream will toward China, CityU has collaborated with the National Judges College also benefit from a comparative-law teaching and learning approach. and the Supreme Peoples Court of the PRC, providing advanced legal In this way, they will be ready to deal with cross-border orinternational education to Chinese judges. The seventh bench of Chinese judges will legal issuesarising from corporate and commercial law and practice. be admitted to the LLM programme in the coming September. Similarly, by introducing a Corporate and Commercial Law Stream Establishing a Firm Foothold in a Competitive to the new academic year, CityU has fashioned a programme that Profession prepares the fledgling lawyer for navigating a business-orientated 3. How is this LLM programme unique from other LLM mode of practice. The stream does this by teaching legal issues programmes? concerning corporations, finance and business, and their practical This new stream is practice-oriented. The students in the stream do importance to regional and international markets. In her own words, not need to take any compulsory courses but are required to select Dr. Ding Chunyan, the LLM programme leader, kindly answered five out of 11 stream-required electives, which provides them with more further questions on this innovative and dynamic programme of study. flexibility in course selection, but at the same allows them to establish a strong knowledge base for practising in the field. The LLM in Focus 1. Can you give us an overview of the Corporate & Commercial 4. Does the LLM programme equip students with practical Law LLM Programme? experience? The new Corporate and Commercial Law stream has been introduced Yes. We encourage and assist students to get practical experience to meet a strong demand for expertise in corporate and commercial relating to corporate and commercial law through legal placements law in the local, regional and international markets. The 11 stream- orinternships at firms, companies or within the courts. required electives include: 5. Finding a job can be challenging in todays highly Company Law; competitive professional job market. How does CityU assist Law of Corporate Finance; students who enroll in this programme throughout the Corporate Insolvency and Restructuring; process? Law of Corporate Governance; First of all, we strive to equip our students in this stream with solid theoretical knowledge and practical experience during their Capital and Securities Market Regulation; studies. Secondly, we will hold alumni career talks to help students International Financial Law; better understand the legal market of corporate and commercial Banking Law; law, discover their potential career niche, and offer advice on how to Commercial Law; enhance theirchances at securing opportunities in the market. Thirdly, we provide a plethora of overseas options for students who want to Insurance Law; study abroad. We endeavour to widen and deepen their vision globally, Competition Law; and because obtaining a better understanding of pluralism in law and Corporate Social Responsibility: Law and Practice. legal culture is central to being a successful practitioner. 2Legal Career and Education Development

100 HKU Launches a Pioneering LLM Programme in Compliance and Regulation T he official ceremony launching HKUs newLLM in Compliance and Regulationwas held on Monday, 14 March 2016, in the company of distinguished guests including the Secretary for Financial Services Even if there are already many compliance training programmes offered in the marketplace, the LLM Programme in Compliance and Regulation is the first university masters programme in the and the Treasury, Professor K C Chan; Programme Director, Professor region. It is thus an academic programme rather than one focused Douglas Arner; Professor Alexa Lam from HKUs Faculty of Law. on compliance training. Graduates will expect to have a broad Over the past 20 years, in Hong Kong and around the world, financial understanding of the issues and trends as well as of the rule makers regulation and compliance has been one of the faster growing areas. and the rules themselves. As a university, this is an advantage This programme is very much intended to meet increasing demand compared to a private sector training programme and one that fits among firms and market participants for a high-quality degree in with the Facultys mission of supporting both human capital and the area. The programme builds on existing Faculty strengths, in societal development. The programme will accept students with or particular our world class Asian Institute of International Financial without law degrees and will strongly consider related experience. Law and LLM in Corporate and Financial Law, with related staff, It is anticipated to attract a balanced cohort of mid-career, senior research and teaching. In particular, the LLM in Corporate and and junior applicants from a wide variety of different academic and Financial Lawhas seen a very large increase in applicants seeking a professional backgrounds. compliance-related degree over the past 10 years. In the wake of the The Faculty of Law intends to build an integrated programme that 2008 global financial crisis, we felt that now was the right time to builds wider understanding of key issues and trends, providing those create a new and focused programme. completing the programme with the tools to address compliance This is the first such programme in Hong Kong and the region. Other and regulatory issues as they develop in future. The programme is major universities elsewhere have also recently been launching or built on a foundation course which will provide the necessary tools to considering launching similar programmes for the same reasons as understand the complex international and local regulatory systems. HKU. Given existing strengths in the area, it is a very appropriate next In addition, there are a wide range of specialised courses providing stage for HKUs efforts. in-depth analysis of specific areas, such as anti-money laundering, securities regulation, listed companies compliance, privacy etc. The The LLM in Compliance and Regulation is designed to focus on programme is topped with a series of capstone courses seeking the needs of those working or intending to work in regulation and to integrate understanding across specialised areas. Thus, those compliance areas. It is designed to provide them with an overall completing the programme should find themselves well placed for understanding of the major trends in the area as well as their career advancement in the sector. expression in Hong Kong, Mainland China and the Asia Pacific region. It is thus a more focused programme than the LLM in Corporate At the same time, the teachers in the programme will be a mix of and Financial Law, which is designed for those looking for greater experienced academics as well as highly experienced professionals understanding of key trends and issues in the transactional area. working in the area and seeking to share their knowledge and The LLM in Compliance and Regulation will focus not only on the expertise. content of international standards and local rules and regulations For more information on applying to the programme, visit our in the financial sector but also on developing professionalism and website (http://www.law.hku.hk/postgrad/llm/cr/). culture to support competitiveness not only in firms but also in the financial sector generally. 4Legal Career and Education Development

101 Law Firm Associate Hiring Matters to Consider in Todays Legal Market Major, Lindsey & Africa is the worlds largest executive search firm dedicated exclusively to the legal industry. Established in 1982 in the United States, we have operated in the APAC legal market for over 16 years through offices in Hong Kong, Tokyo, and Sydney and through strategic alliances in Beijing and Seoul. Our global footprint with 22 offices worldwide gives our APAC recruiters a position to provide lawyers in the APAC markets with an unparalleled local and global perspective of APAC-based law firms owing to MLAs long standing and deep relationships with law firms, both in APAC and across the globe. This includes access to law firm Chairmen, Global Practice Heads, and Asia Managing Partners. Introduction Chinese New Year came early this year and so lateral associate movement was somewhat off to a slow start as lawyers were focused on closing deals before going to spend time with family and generally recharging during the Lunar New Year holiday. Having said this, Partners and Recruitment teams at law firms had numerous new roles for new associate hiring, creating a buoyant market where junior- to mid-level associates are in high demand. Whilst some associates do have concerns about the economy and a perceived first-in, first-out risk associated with a move, rest assured that firms plan their recruitment strategies well in advance. Given the global nature of firms and their increasingly regional focus on their work, for many associates the doubts about making a move to another firm are mostly illusory. Now is the time to move and take opportunity with both hands, so lets take a look at the market and some of the ways associates can develop their career in the Year of the Monkey. Law Firm Hiring The Current Market The Corporate practice is by far the busiest at the moment and now is the time to think about where you want to take your career. Are you looking for a stronger international platform with high quality work? The Magic Circle firms are definitely worth considering. Alternatively, perhaps you want something that is more entrepreneurial and in growth mode but with strong, global backing? The US Firms are most likely the place to look. Or, if you are feeling that you want a good work flow, but perhaps a softer culture, there are plenty of opportunities at the international and mid-tier firms to consider. We also see opportunities for law firm associates in banking/finance and the occasional litigation role. Starting a conversation today with a trusted and knowledgeable legal recruiter is advisable whether you are looking for an immediate move or are looking farther down the horizon. Arming yourself with market information including the current health and strategies within the diversity of firms in APAC is a great way to begin forming your long term career strategy. 6Legal Career and Education Development

102 Law Firms Differentiating Law Firm Culture The corporate brochure, wall art and partner reputations law firms are just all the same, arent they? Recruiters have a deep understanding of law firms and their cultures, sometimes on a global scale. Taking the time to speak openly with your recruiter about your concerns in advance of any move could shed new light on a practice that you were previously unaware of. We would encourage you to be open minded to conversations after all, it is an important move for you and you want the fit to be right. Whilst friends, peers at other firms, and your own knowledge of competitors may be able to illuminate key characteristics of other firms, do remember that you are unique and your own experience with a firm may be completely different to that of someone elses which may often be unintentionally biased. You need to think about the direction a firm is taking, its long term strategy, and how you fit that framework. You would not choose your apartment based on your friends decision or opinion, so why would you choose a job on the same premise? Partners What Attracts Associates to Your Practice? The millennial generation is deemed mysterious, demanding and wanting different things than those you required before you were voted into Partnership. Whilst in some respects this is true, fundamentally what millennials want is mentorship, high-quality work and direction. With so much happening around associates and the abundance of information available at their fingertips, stability or the appearance of stability is key. It is therefore important to reflect on any changes that may have cast a shadow on your firm or practice. Potentially uncomfortable interviews with misinformed, but otherwise well-meaning associates can be avoided by engaging/partnering with a reputable recruiter to assist you and your firm to get the correct message out to the market. A recruiter is not simply an order-taker, but can be a strong ally in creating a positive narrative for your firm in the local market. Also, be open to coffee with a candidate and consider a more casual interview process to engage with the candidate and ultimately hire her. We have experienced a strong candidate driven market recently, so competition for top associates remains high. Fostering a supportive attitude early on is bound to help you hire high-quality talent. Try to understand and be open to their drivers, but set your expectations with associates from the beginning on what you expect them to contribute to your practice. Nathan Peart is a Consultant in the Associate Practice Group of Major, Lindsey & Africa. He works and lives in Hong Kong and formerly worked in MLAs London office where he assisted associates looking to make lateral moves locally or internationally. Please contact Nathan with questions relating to this article or about the lateral associate market in Hong Kong and across APAC. [email protected] | +852 3628 4633 Major, Lindsey & Africa www.mlaglobal.com This article was originally published in the April 2016 Legal Career Education Development Supplement of the Hong Kong Lawyer magazine.

103 Bermuda CommerCial law Authored by Harney Westwood & Riegels and Harneys Bermuda Limited, one of Bermudas leading law firms, Bermuda Commercial Law is the authoritative reference for lawyers and other professionals who work frequently with offshore corporate structures and transactions. Library: Offshore Law Library DUO ISBN: 9789626618752 Pub Date: March 2016 General Editors: Mr. Ian Mann and Ms. Sarah-Jane Hurrion Harney Westwood & Riegels and Harneys Bermuda Limited List Price: HK$4,300 Delivered in DUO PRINT + PROVIEW EBOOK Print and Proview eBook included with exclusive eBook content ORDER NOW www.sweetandmaxwell.com.hk +852 2847 2000 [email protected]

104 Master of International Law (International Economic Law) (Jointly organized by Hong Kong Shue Yan University and China University of Political Science and Law) () This degree programme provides you with: Chinese legal knowledge Exposure to the legal professions both in Hong Kong and Mainland China Advantages in developing a business both in Hong Kong and Mainland China A recognized masters degree from CUPL, a university of high ranking in law in Mainland China A good preparation course for the National Judicial Examination in Mainland China Programme characteristics: Medium of instruction: Mandarin The degree is obtained in 2 years (the maximum period of study Information Sections: is 4 years) Date Time Lectures are delivered face-to-face in Hong Kong by professors of 16/04/2016(SAT) 3PM-4PM CUPL Students are able to apply for the Extended Non-Means-Tested 07/05/2016(SAT) 2PM-3PM Loan in Hong Kong 11/06/2016(SAT) 3PM-4PM Students are able to apply for post-graduate residence at HKSYU 25/06/2016(SAT) 2PM-3PM An award scheme has been set up for academically outstanding 09/07/2016(SAT) 3PM-4PM students Venue: Moot Court, Room 403, Residential Application Deadline: 18 July 2016 & Amenities Complex, 8 Wai Tsui Crescent, Note: This course is an exempted course registered with the Education Bureau, Braemar Hill, North Point, Hong Kong HKSAR. It is a matter of discretion for individual employers to recognize any qualification to which this course may lead. (Reference number: 432651) Programme website: http://www.hksyu.edu/lawbus/index.php?id=24 Programme inquiry: Miss Katherine Huang Tel: 2806-5132 Email: [email protected]

105 Major, Lindsey & Africa, established in 1982, is the worlds largest legal search firm focused exclusively on the legal industry and on representing top lawyers seeking new career opportunities across the globe. With offices in Hong Kong, Sydney, Tokyo, and affiliates in Beijing and Seoul, MLA has assisted 16 international law firms establish offices across APAC. With the opening of its Sydney office last year, MLA remains committed to expanding its unparalleled legal search capabilities across Asia Pacific. MLAs Consultants and Researchers are prepared to assist you: Execute cross-border moves to and from the UK, US, Asia, and Australia Make strategic career moves within Australasia Expand or establish your law firms presence in APAC Expand or establish your corporate legal department in APAC Global Reach with Local Market Knowledge SYDNEY BEIJING HONG KONG SEOUL TOKYO Celebrating more than 15 years on the ground in Asia Partners | Associates | Market Entry | General Counsel | In-House Counsel Carl Hopkins, Asia Managing Partner Maggie Kwok, Consultant +852 3101 9678 [email protected] www.MLAGLOBAL.com +852 3101 9678 [email protected]

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