C O N F E R E N C E POST-EVENT REPORT DOING BUSINESS ACROSS ASIA: LEGAL CONVERGENCE IN AN ASIAN CENTURY INTERNATIONAL CONFERENCE AND LAUNCH OF THE ASIAN BUSINESS LAW INSTITUTE (ABLI) 21 & 22 JANUARY 2016 / RAFFLES CITY CONVENTION CENTRE SINGAPORE ORGANISER: CONFERENCE PARTNER: SUPPORTED BY: 2016 - Post-conference Report 1 KEYNOTE ADDRESS Opening Remarks Mrs Lee Suet-Fern, Managing Partner, Morgan Lewis Stamford LLC; Chairman, Conference Steering Committee, giving the opening remarks The Honourable The Chief Justice Sundaresh Menon, Supreme Court of Singapore; President, Singapore Academy of Law 21 January 2016 Business today is conducted in an environment that is dramatically different from what we have, until recently, been President SAL also accustomed to. Once upon a time, the marketplace referred to riotous unveiled the inaugural fairs and bazaars in which merchants gathered to barter and trade. Board of Governors of Today, we think of the marketplace as a metaphysical global interface the ABLI. for the exchange of goods and services, unbounded both in its reach and its potential. Click here for the list Click here for the keynote address transcript 2 2016 - Post-conference Report The four Justices launching the Asian Business Law Institute. (L to R) The Honourable the Chief Justice Sundaresh Menon, Supreme Court of Singapore; The Honourable Chief Justice Robert Shenton French AC, High Court of Australia; The Honourable Senior Judge Zhang Yongjian, Chief Judge of the Fourth Civil Division, The Supreme People’s Court, The People’s Republic of China and The Honourable Justice Arjan Sikri, Supreme Court of India The launch of ASIAN BUSINESS LAW INSTITUTE ADDRESS “A convergence on which there is a broad consensus in society should be the aim. Hence I call upon you to seek ‘optimal convergence’—a convergence which takes into account the benefits of convergence but recognises that there will always be some need for diversity of laws.” - The Honourable Mr Arun Jaitley, Union Minister of Finance, Corporate Affairs and Information and Broadcasting, India Click here for the address transcript “The word ‘convergence’, in this context, preceded by the word ‘cooperative’ is a dialogue that must engage law-makers, the judiciary and the legal profession, business networks and associations, academics and government officials with responsibility across a range of areas relevant to business law and practice.” - The Honourable Chief Justice Robert Shenton French AC, High Court of Australia Click here for the address transcript “Legal convergence is one of the steps which will help unlock Asia’s full economic potential.” - Mr K Shanmugam SC, Minister for Home Affairs and Minister for Law, Singapore Click here for the closing address transcript 2016 - Post-conference Report 3 Panel ONE Written by: Benjamin Ng, Nabarro AND Daniel Gaw, Rajah & Tann Asia Convergence in an Asian Century This panel, led by Professor Tommy Koh, raised key supporting pillars, any attempts to harmonise busi- points on the business imperative for legal conver- ness laws might be reduced to an academic exercise. gence in Asia. While the panel largely agreed that the whole of Asia would benefit from legal conver- This was echoed by Dr Shinjiro Takagi, Advisor to gence and harmonisation, there were certain key Nomura Securities, Co Ltd, who had earlier met with factors that had to be considered before any initia- Japanese business leaders who were based in Sin- tive could be undertaken. gapore. Lending his voice to the Japanese business community in Asia, Dr Takagi underlined the impor- tance of clear, stable and predictable laws: he con- trasted common law to Japanese civil law, in which statutes were reformed less frequently, thereby pro- viding large corporations with certainty on how the law would be implemented and interpreted. Mr Henri de Castries, Chairman and CEO of AXA, highlighted that large corporations could pave the way for convergence, since multinational companies with offices around Asia are able to create workflows or processes that give effect to legal convergence ini- tiatives, such as the adoption of guidelines and best Professor Tommy Koh practices. As the only panellist currently residing in Europe, Mr de Castries also shared his experiences on A few of the panellists raised the issue of rule of law the convergence of business laws in the European and how the perceived weakness of the rule of law in Union, stressing that the extent of integration of re- certain Asian jurisdictions could be an obstacle to le- gional business laws was a more important yardstick gal convergence. In particular, the competence and of legal convergence than the number of countries integrity of the legal system of each country must purporting to adopt such measures. first give foreign investors a sense of confidence be- fore they are ready to invest. Finally, Professor Ashish Nanda, Director, Indian Insti- tute of Management, Ahmedabad; Executive Educa- Mr Simon Israel, Chairman of Singtel Telecommuni- tion Fellow, Harvard Business School; Harvard Law cations Limited, believed that the harmonisation of School, provided his views on the short-term and business laws is essential, but cautioned that the out- long-term implementation of legal convergence in come would be marginal without the collective ef- Asia. Pointing out that China’s growth has been a big fort of participating countries. Drawing a link to the driver of legal convergence, he expects legal conver- importance of the rule of law, Mr Israel emphasised gence initiatives to take a while to fully develop in that business laws had to be bolstered by a common light of the current Asian economic situation. How- interpretation and implementation across Asian ju- ever, in the longer run, Professor Nanda believed that risdictions, as well as enforceable arbitration awards the harmonisation of Asian business laws is achiev- and competent commercial courts. Without these able; he cited the growth of the tech industry as an 4 2016 - Post-conference Report impetus that eliminated geographical borders which would in- crease the relevance of cross-border legal initiatives, especially those pertaining to the regulation and protection of data. Ultimately, the panellists agreed that there were significant eco- nomic imperatives to pursue legal convergence. In wrapping up the panel discussion, Mr de Castries noted that the legal con- vergence initiative boils down to three key elements: first, the clarity of the proposed rules or guidelines for harmonisation; (L to R) Mr Henri de Castries, Dr Shinjiro Takagi, Professor Ashish Nanda, Mr Simon Israel second, the consistency of the practice; and third, the effective- ness of the enforcement. Panel TWO Written by: Colin Liew, TSMP Law Corporation Asian Economic Expansion – The Role of Legal and Regulatory Frameworks This panel, led by Dr Beh Swan Gin, Chairman of the the convergence of legal principles across multiple Singapore Economic Development Board, examined jurisdictions. the role of legal and regulatory frameworks for global trade and investment. The matter was put in context The inevitability of convergence was a theme picked by Dr Beh, who noted that the Association of South- up by Mr Bharat Vasani, General Counsel of the Tata East Asian Nations is now a US$2.4 trillion economy, Group, who shared his experience of the Tata Group’s having expanded by more than 300% since 2001. cross-border transactions, stating that a significant part of his time was spent on due diligence as a re- However, Dr Beh suggested that while companies sult of the diversity of legal regulations. Mr Vasani are turning their attention to Asia, they were also lamented the lack of a single Asian competition wary of the region’s risks, including its political and regulator with which businesses could deal, and socio-cultural differences, with the diversity of busi- expressed his desire for a greater convergence and ness laws and legal systems adding a further layer of harmonisation of commercial and corporate laws in complexity to doing business in Asia. Asia. In this context, many of the panellists agreed that In a speech sprinkled with good humour and witty harmonisation of legal and regulatory frameworks anecdotes, Ms Marjorie Yang, Chairman of the Esquel would play a key role in navigating these challenges. Group, spoke passionately about the importance of the rule of law and its role in driving business. Adopt- Mr Stephen J Brogan, Managing Partner of Jones Day, ing a slightly different perspective from Mr Brogan, explained his belief that harmonisation across Asia in Ms Yang suggested that it was not necessary to wait this regard was not merely feasible or possible, but for lawyers to prompt a change in laws if corporates indeed inevitable. Mr Brogan suggested that legal could do so responsibly and respectably. institutions had to be at the forefront of this process, being as they were on the front lines of globalisation Next, Chief Justice Geoffrey Ma of the Hong Kong and well-placed to witness and take advantage of Court of Final Appeal delved deeper into the theme 2016 - Post-conference Report 5 by exploring the underlying purpose of legal and regulatory frameworks, pointing out that convergence in the implementation of such laws could not take place unless the fundamental principles were first understood and accepted. Chief Justice Ma considered such frameworks to be neces- sary in facilitating business development, by ensuring market discipline, a level and hence fair playing field for all participants, and transactional effec- tiveness. Concentrating on the idea of fairness, Chief Justice Ma identified within it the facets of principle, certainty and transparency, and stressed the importance of these matters to all stakeholders operating within legal and regulatory frameworks. Finally, Chief Justice James Allsop AO of the Federal Court of Australia turned his attention to the convergence of arbitration laws, highlighting that Asia was very much a Model Law area, with the result that the judiciary naturally looked to the decisions of other courts in the region for guidance on issues of international commercial arbitration.