Volume 16 Issue 4, 2019
Plus: The thing about ... The art of deal management Investigative Intelligence Philip McConnaughay and Keeping momentum, Physical security key to legal education in China avoiding “deal fever” data centre protection
| MAGAZINE FOR THE IN-HOUSE COMMUNITY ALONG THE NEW SILK ROAD | Now in its 21st year, the In-House Community Congress series is the region’s original and largest circuit of corporate counsel events, bringing together over 3,000 corporate in-house counsel and compliance professionals along the The annual gatherings New Silk Road each and every year. of the In-House Community along the New Silk Road
n Abu Dhabi n Bangkok n Beijing n Dubai n Ho Chi Minh City n Hong Kong n Jakarta Do you have a regular dialogue n Johannesburg n Kuala Lumpur n Manila with your peer In-House Counsel n Mumbai n Seoul n Shanghai n Shenzhen along the New Silk Road? n Singapore n Sydney n Yangon “In-House Community provides a unique combination of best practice sharing, networking, news and technical updates that all practitioners need in order to meet the competing pressures of legal coverage, compliance and commerce. In-House Community empowers the modern lawyer to work smarter and become a trusted business partner”
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Feature contributors
Chatura Randeniya is a partner in the Dubai office of Afridi & Angell. His practice focuses primarily on dispute resolution. He advises and represents clients in arbitration, and has repre- Nick Ferguson – Managing Editor sented clients in DIAC, ADCCAC, ICC, and ad hoc arbitrations. He also works with local [email protected] advocates on matters before the UAE Federal Courts, including the Federal Supreme Court in Leo Yeung – Design Manager matters of national security, as well as the Courts of Dubai and Ras Al Khaimah. Randeniya [email protected] regularly acts for clients in high value construction disputes. He also advises on maritime and Wendy Chan – Global Head of Events shipping disputes, banking disputes, employment disputes, as well as disputes relating to com- [email protected] mercial transactions. Rahul Prakash – Publisher [email protected]
Yvette Tan – Head of Research and Development Manager Nazim Hashim is an associate in the Dubai office of Afridi & Angell. He has substantial [email protected] experience in all aspects of civil and criminal litigation from case intake through to final dis-
Yannie Cheung – Office Administrator position at trial. He handles a heavy caseload at a busy litigation practice, which includes [email protected] conducting research and drafting memoranda used to support court pleadings. Prior to joining Afridi & Angell in 2011, Hashim was an associate at a law firm in Khartoum. He had rights of Tim Gilkison – Managing Director audience before all Sudanese courts. Hashim was also a teaching assistant in the faculty of law, [email protected] University of Khartoum. Patrick Dransfield – Publishing Director [email protected]
Arun Mistry – Director Nick Tomlinson is general counsel for Asia Pacific at Dentsu Aegis Network. Having joined the group in 2009, he has been instrumental in the many and various acquisitions made by the Editorial Enquiries Tel:...... (852) 2542 4279 group in Asia Pacific. He has developed the group’s legal resources in the region and leads the [email protected] implementation of best practices in governance and compliance. Prior to working for Dentsu Aegis, he was general counsel in Hong Kong for Reach, a global telecoms JV between Hong Advertising & Subscriptions Kong’s PCCW and Australia’s Telstra. He started his legal career at Bell Gully in New Zealand, Tel: ...... (852) 2542 1225 before joining Vodafone as in-house counsel and then moving to Hong Kong with PCCW. [email protected]
Published 10 times annually by Pacific Business Press Limited Oliver Mould is head of Asia for LOD. Having lived and worked in Asia since 2008, he com- Room 2008, C C Wu Building, bines extensive experience of managing complex multijurisdictional assignments with special- 302-8 Hennessy Road, Wan Chai, ist knowledge of the legal services markets in the region. With a deep understanding of the Hong Kong S.A.R. challenges faced by any in-house legal and compliance function, he is well equipped to advise
Publishers of on the most efficient strategies for dealing with today’s changing legal landscape. TM • ASIAN-MENA COUNSEL Magazine and Weekly Briefing
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Organisers of the • IN-HOUSE CONGRESSTM events About the IN-HOUSE COMMUNITY A mutually supportive community of In-House Counsel helping In-House Counsel and Compliance Hosts of Professionals meet their ethical, legal and business commitments and responsibilities within • www.inhousecommunity.com • www.mycareerinlaw.com their organisations.
Forums for the In-House Community The In-House Community comprises over 21,000 individual in-house lawyers and those with a along the New Silk Road responsibility for legal and compliance issues within organisations along the New Silk Road, © 2019 Pacific Business Press Limited who we reach through the annual In-House Congress circuit of events, Asian-mena Counsel and contributors magazine and Weekly Briefing, and the In-House Community online forum.
Opinions expressed herein do not constitute legal advice, and do not necessarily reflect the views of the publishers.
ISSN 2223-8697 Empowering In-House Counsel along the New Silk Road In this issue Volume 16 Issue 4, 2019
COVER STORY
22 Asian-Mena Counsel’s review of the top transactions and matters that closed during the past year.
JURISDICTION UPDATES Key legal developments affecting the In-House Community along the New Silk Road
4 African competition law developments in 2018 and the outlook for 2019 06 By Pieter Steyn of Werksmans Attorneys
6 Protecting indigenous knowledge systems and practices in intellectual property rights registration By Raymond C Sanchez, Jr of ACCRALAW
Tax liabilities in Korea for income generated from patents 8 By Yi So-yeon of Lee International
2 www.inhousecommunity.com Reform of regulations on private issuance of corporate bonds in Vietnam 10 By Tran Cong Quoc of bizconsult
12 Offshore Update: Venture capital in Southeast Asia — 2018 review 08 By Thomas Granger and Tania Toh of Walkers
14 THE BRIEFING Along with the latest moves and jobs, we take a closer look at Noble Group’s US$3.45 billion debt restructuring
21 INVESTIGATIVE INTELLIGENCE Physical security key to data centre protection 10 Controls that prevent physical access to servers must be a fundamental component of any information security programme, writes Simon Ashenden of Kroll
SPECIAL FEATURE 32 Significant changes to UAE’s Civil Procedure Code While the changes are welcome, they put pressure on litigants to plead their cases within relatively short time periods, write Chatura Randeniya and Nazim Hashim of Afridi & Angell 21 36 The art of deal management Oliver Mould, head of Asia for Lawyers On Demand, speaks with Nick Tomlinson about his background, career, current role as general counsel for Asia Pacific at Dentsu Aegis Network and the importance of deal management
40 The Thing About ... Philip McConnaughay The dean of Peking University School of Transnational Law in Shenzhen discusses the development of legal education in China 40
46 Asian-mena Counsel Direct Important contact details at your fingertips
Asian-mena Counsel is grateful for the continued editorial contributions of:
Volume 16 Issue 4, 2019 3 JURISDICTION UPDATES
AFRICA
Werksmans Attorneys, a LEX Africa member firm The Central, 96 Rivonia Road, Sandton, Johannesburg, 2196 By Pieter Steyn Private Bag 10015, Sandton, 2146, South Africa Tel: (27) 11 535 8000 / Fax: (27) 11 535 8600 Tel: (27) 11 535 8296 / Fax: (27) 11 535 8696 E: [email protected] W: www.werksmans.com African competition law developments in Malawian, South African and Egyptian competi- tion authorities investigated and issued impor- 2018 and the outlook for 2019 tant decisions relating to excessive pricing, exclusive supply arrangements, exclusive pur- frica is sometimes described as the “last chase undertakings in loan agreements, the fix- A frontier” of competition law because “Businesses should adopt a ing of prices and trading conditions, the many African countries have only recently “prevention is better than exemption of joint ventures and tying arrange- adopted modern competition laws (South ments by dominant firms; and Africa only did so in 1999). However, African cure” approach and consider • the Zimbabwean competition authority competition law is developing rapidly and competition law training for launched a new National Competition Policy needs to be closely and regularly monitored senior executives and staff, as and a new competition bill was submitted to because the consequences of a competition parliament in Ghana. contravention are serious and include severe well as implementing The following trends are increasingly important: financial penalties for the firm, damages compliance programmes” • the increasing importance of regional (as claims, reputational damage and even crimi- opposed to national) authorities; nal sanctions for involved directors and • a shift in focus away from merger control managers (10 years jail and/or R500,000 of certain goods and services on the commission’s towards enforcement and conduct cases (cartels, (US$36,000) fine in South Africa). recommendation and criminalises cartels, other restrictive practices and abuse of dominance); In 2018, the East African Competition competition contraventions and the failure of a • increasing cooperation between African com- Authority (covering 6 East African countries) firm to cease an abusive practice after receipt of a petition regulators and between competition became operational and the ECOWAS Regional desist order from the commission. A general pen- and other regulators in the same country; and Competition Authority (covering 15 West African alty may be imposed on body corporates of up to • new competition laws, for example in Ghana, countries) was established. Other existing regional 10 percent of annual turnover. Directors of the Uganda and South Sudan. competition regimes are the COMESA body corporate face up to five years jail and/or a African competition law developments in Competition Commission, which covers 21 N50 million (US$137,000) fine. A tax of 0.5 per- 2018 clearly indicate that African competition law African countries, the Economic and Monetary cent of after-tax profits will be payable by all enforcement will increase going forward. Community of Central Africa, which covers six Nigerian companies to the commission. Competition laws will continue to be passed, Central African countries, and the West African Other important African competition law implemented and reviewed/amended. The risk of Economic and Monetary Union, which covers developments in 2018 and early 2019 included: competition contraventions for business will eight West African countries. A Southern African • new competition laws came into force in accordingly increase. Due to the serious conse- Development Community regional competition Angola and Botswana (cartel conduct has been quences of such contraventions, businesses should framework that will cover 15 African countries is criminalised in Botswana); adopt a “prevention is better than cure” approach planned by 2020. • significant amendments to South Africa’s and consider competition law training for senior One of the most significant recent develop- Competition Act came into force with a strong executives and staff, as well as implementing com- ments in African competition law is in Nigeria, focus on restricting dominant firms, widening the pliance programmes, including a whistle-blower Africa’s largest economy. The Federal Competition Competition Commission’s powers and increas- programme/hotline and dawn raid training (there and Consumer Protection Bill was signed by the ing the penalties for competition contraventions; have been over 70 raids in South Africa since 2016 president in February 2019. The new law estab- • in Namibia, a corporate leniency programme and raids have also taken place in Kenya, Namibia, lishes a commission and tribunal and covers car- was launched to combat cartels and the Botswana, Malawi and Zambia). tels, dominance, anticompetitive practices and Mauritian leniency programme was amended mergers as well as consumer protection. Cartel to allow the initiators or coercers of cartels to LEX Africa is an alliance of law firms with over conduct, the abuse of dominance and minimum apply for leniency and get a 50 percent reduc- 600 lawyers in 24 African countries formed in 1993. More information may be found on resale price maintenance are prohibited. It contro- tion in fines; www.lexafrica.com. versially allows the president to regulate the prices • the Zambian, Kenyan, Ethiopian, Namibian,
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JURISDICTION UPDATES
PHILIPPINES
By Raymond C. Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW) Sanchez, Jr. Tel: (63) 2 830 8000 E: [email protected] W: www.accralaw.com
Protecting indigenous knowledge systems munity is entitled to the collective management of their intellectual property rights over these and practices in intellectual property works. These artistic and literary works and rights registration inventions of the indigenous peoples refer to tangible and intangible forms in which their IKSP ndigenous peoples (IPs) and indigenous cultural unique to the laws on IPs: the concept of com- are expressed, communicated or manifested and Icommunities (ICCs), though explicitly protected munal property and the free prior and informed include traditional music, performances, narra- under the constitution itself, sadly remain one of consent (FPIC). Rule 4 (b) of the JAO defines tives, names and symbols, designs, and techno- the most marginalised and forgotten sectors in “Community Intellectual Rights” as the rights of logical innovations.” Philippine society. Most often than not, IPs and the IPs and ICCs to own, control, develop and As regards FPIC, a major protective meas- ICCs are known for their mineral-rich ancestral protect the following: ure mentioned in the JAO is that intellectual lands and domains that are the usual targets for • the past, present and future manifestations of property registrants must disclose any IKSP that mining development projects. Unknown to many, their cultures, such as but not limited to, is used in the subject matter of the application however, IPs and ICCs possess other valuable archaeological and historical sites, artefacts, and that FPIC was secured from the ICCs con- resources, specifically their indigenous knowledge designs, ceremonies, technologies, visual and cerned. Rule 6 of the JAO states that if this condi- systems and practices (IKSP) consisting of accu- performing arts, and literature as well as reli- tion is not observed, the registration of the mulation of age-old traditional cultural methods gious and spiritual properties; intellectual property which uses IKSP in its sub- and beliefs in medicine, genetic resources, ecol- • science and technology including, but not ject matter will not be effected. In case a registra- ogy, art and language, among others. limited to, human and other genetic tion has been issued in violation of the JAO, the Under Republic Act No. 8371 or the resources, seeds, medicine, health practices, IPO may, in accordance with its rules and regula- Indigenous Peoples Rights Act (IPRA), the law vital medicinal plants, animals and minerals, tions, cancel the registration. Further, notwith- acknowledges that IPs and the ICCs have the indigenous knowledge systems and practices, standing the lack of declaration of the use of an right to special measures to control, develop and resource management systems, agricultural IKSP in an intellectual property right application, protect their sciences, technologies and cultural technologies, knowledge of the properties of the IPO may, motu proprio or upon request by manifestations, including their IKSP. fauna and flora, oral traditions, designs, scien- any person and after initial evaluation by the IPO, Pursuant to this legal mandate, the National tific discoveries; and refer the application to the NCIP for purposes of Commission on Indigenous Peoples (NCIP), the • language, script, histories, oral traditions and verifying the use or ownership of the IKSP and primary government agency tasked to formulate teaching and learning systems. compliance to the FPIC requirement. and implement programmes, plans and policies Notice that, unlike conventional intellectual To assist the IPO in determining the use of to promote and protect the rights and well-being property rights such as patents, copyrights and the IKSP, the NCIP, together with other cultural of the ICCs and IPs, and the Intellectual Property trademarks, which are registered to a specific government agencies, is tasked to establish an Office (IPO), the main government agency that entity or individual, the intellectual properties of IKSP registry. In the absence of such registry, the administers and implements rules governing the IPs and ICCs are communally owned. Individuals NCIP or IPs recognised or accredited by NCIP is registrations of intellectual property rights appli- can only act as custodians of the IKSPs, but the authorised to certify the ownership of the IKSP cations, issued on October 28, 2016, Joint intellectual property rights are collectively owned by the ICCs. The certification shall also include Administrative Order No. 01, 2016 (JAO), which by the ICCs. In addition, the JAO makes refer- information on the FPIC compliance. provided the rules and regulations on intellectual ences to collective management of the intellec- property rights application and registration pro- tual properties of the ICCs. Rule 7 of the JAO The views and opinions expressed in this article are those of the author. This article is tecting the IKSPs of the IPs and ICCs. provides that: for general informational and educational The primary thrust of the JAO is to prevent “If the author of an artistic and literary crea- purposes, and not offered as, and does not the misappropriation of the IKSPs of the IPs and tion or the inventor of an invention cannot be constitute, legal advice or legal opinion. ICCs, and encourage tradition-based creations identified, but an indigenous cultural community and innovations. Recognising the nature of the is recognised to have created and owned the (Note: This article first appeared in Business World, ICCs, the JAO reflects two important principles artistic or literary work, or invention, this com- a newspaper of general circulation in the Philippines.)
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JURISDICTION UPDATES
SOUTH KOREA
Poongsan Bldg. 23 Chungjeongro, Seodaemun-gu, Seoul 03737, Korea Tel: 82 2 2262 6288 / Fax: 82 2 2279 5020 By Yi So-yeon E: [email protected] W: www.leeinternational.com
Tax liabilities in Korea for income Article 93 of the Corporate Tax Act. In this regard, Article 14(4) of the Korea-US Income Tax generated from patents Convention defines the term “royalties” as used in this Article to mean payment of any kind made as ecently, the Supreme Court of Korea consideration for the use of, or the right to use R upheld a lower court judgment finding “Only that portion of patents. Article 6(3) of the Convention also states that under the Korea-US Income Tax that royalties described in paragraph (4) of Article Convention, where a foreign corporation income constituting 14 (Royalties) shall be treated as income from has given a patent licence to a company in royalties of a patent sources within one of the Contracting States, only Korea but has not registered its patent in if paid for the use of or the right to use such prop- Korea, then the income paid to that foreign registered in Korea is to erty within that Contracting State. corporation from Korea for the use of such be considered In earlier cases the Supreme Court ruled that patent licence would not be considered in light of the interpretation of the above articles, domestically generated income, and not domestically generated any patent licence is deemed to be valid only in subject to Korean tax liabilities. income” the territory of a country where such patent has In that case, a Korean company brought an been registered. So when a US corporation action against the Korea Tax Office, challenging a domestically holds a patent licence by having its decision by the Tax Office that the Korean com- withholding tax as domestically generated income. patent registered in Korea, the income paid to pany should have withheld corporate taxes from But under various double tax avoidance agree- such corporation for the use of such patent licence licence fees that it paid to a US company for the ments on income, whether such payments consti- within Korea may be deemed to be domestically Korean company’s use of the patented invention tute domestically generated income has been generated income. In contrast, if a US corporation in Korea. The US company had registered its pat- determined based on the place where the patent has not registered its patent in Korea, but has ent in the US and licensed it to the Korean com- rights have actually been used. Payments made for registered its patent only overseas, then any pany without registering the patent in Korea. patent rights that are used overseas may not be income paid to such company from Korea related The Supreme Court’s holding is consistent deemed to be domestically generated income, to such patents cannot be deemed to be domesti- with prior law and precedent in Korea. Pursuant even if the payments were made from Korea. cally generated income in Korea. to the Korean Corporate Tax Act, a foreign com- Additionally, the former Act provided that for In the most recent case, the court deter- pany is required to pay corporate tax in Korea any patents that are required to be registered in mined that in accordance with the above legal only when it has domestically generated income in Korea to be exercised in Korea, if such patents principles, only that portion of income constituting Korea. Any entity in Korea that pays certain have been registered outside Korea but used in royalties of a patent registered in Korea is to be domestically generated income to a foreign com- Korea for the production or sale of goods, the considered domestically generated income. Such pany, as provided for in Article 93, Subparagraph patent rights are deemed to have been used in judgment once again makes clear the position of 9 of the Act, has the obligation to withhold from Korea, notwithstanding the failure to register such the Supreme Court that when a foreign company the payment any required corporate tax. Article patent in Korea. has registered its patent only in an overseas coun- 93, Subparagraph 9 of the former Corporate Tax However, Article 28 of the Adjustment of try and not in Korea, any income paid to such Act (Article 93, Subparagraph 8 of the current Act) International Taxes Act states that when classifying company from Korea related to such patent can- specified that when there is a use and/or payment domestic sources of income of a non-resident or not be considered domestically generated income. for the use of certain patent rights in Korea, any a foreign corporation, the provisions of a tax treaty Therefore, Korean corporate taxes should not be income generated from such transfer of those shall be preferentially applied, notwithstanding withheld from the royalty payments being made rights and payment is subject to the collection of a applicable domestic laws and regulations such as to the foreign company.
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JURISDICTION UPDATES
VIETNAM
Hanoi: VNA Building, 20 Tran Hung Dao Street, Hoan Kiem District, Hanoi, Vietnam Tel: (84) 0) 24 3933 2129, Fax: (84) 0) 24 3933 2130 By Tran Cong E: [email protected] Quoc Ho Chi Minh: Room 1103, 11th Floor, Sailing Tower, 111A Pasteur, District 1, Ho Chi Minh City, Vietnam Tel: (84) 0 28 3910 6559, Fax: (84) 0 28 3910 6560, Mobile: (84) 934 778 119 E: [email protected] E: [email protected] W: www.bizconsult.vn Reform of regulations on private issuance uncertainty by stipulating that in such circumstance, an issuer may adopt the of corporate bonds in Vietnam quarterly or semi-annual audited FS instead, thus no longer requiring the yearly unaudited n December 2018, the Government of FS. IVietnam issued the Decree 163/2018/ Remarkably, Decree 163 introduces a ND-CP (Decree 163), effective from “The requirement of more systematic administration regime for February 2019. Decree 163 is said to be a being profitable in the corporate bonds as compared with Decree radical reform of regulations on private issu- 90. In particular, the stock exchange shall ance of corporate bonds in Vietnam, repeal- year immediately now be the responsible state authority ing the Decree 90/2011/ND-CP (Decree directly monitoring private corporate bond 90). before year of issuance offerings in Vietnam, instead of the Ministry One of the most notable points under is now lifted” of Finance under Decree 90, which shall Decree 163 is that the requisite conditions receive any statutory pre-issuance report, for issuing corporate bonds have been post-issuance report and regular and significantly liberalised. Specifically, the irregular information disclosure by the issuer requirement to be profitable in the year privately issued bonds upon issuance in the in respect to the bonds issued. In addition, immediately before issuance is now lifted. secondary market shall be, within the first issuers shall be required to deposit issued The condition for a one-year test period year of issuance, restricted to the extent of bonds with a depository agent, ie the before issuance shall be counted from the 100 investors, excluding professional Vietnam Securities Depository (VSD) or a date of initial issuance of issuer’s business investors. member of VSD, to manage the registrar registration certificate, rather than the date Decree 90 previously mandated an and transferring thereof within 10 days from of official operation as under Decree 90. In audited financial statement (FS) of issuer for issue, and status of ownership of such bonds this regard, for issuers that have undergone the year immediately preceding the year of shall be updated by the depository agent to restructuring such as merger, conversion or issuance as a condition for bond issuance. the stock exchange on semi-annual basis. division, such time period before Should the bonds be issued in the first The stock exchange shall establish and restructuring shall be taken into account for quarter of a year where a yearly audited FS manage a corporate bond website to collect the purpose of that one-year test. Another has not been prepared, then the unaudited and publicise the information on international noteworthy point is that a form of issuing by one shall be alternatively allowed, but to this and domestic corporate bonds issued by direct placement to bondholders without end, that unaudited yearly FS must firstly be Vietnamese issuers, which shall include, going through issuing agent or underwriter is approved by the board of directors (for joint among others, information regarding bond now allowed for any issuers. Previously stock companies) or members’ council (for terms and conditions, conversion of bonds, under Decree 90, it was limited for the liability limited companies) in accordance attached-warrant exercise and regular and credit institution only. With respect to with the charter of the issuer. However, the irregular information disclosure of the international bonds, conditions requiring a charter of companies in Vietnam do not issuers. Investors may log in to such website credit rating for the issuer and legal opinion usually regulate such power of board of to search for the status of bond issues in regarding issue have been revoked. directors or members’ council to approve accordance with the operation rules of such Nonetheless, Decree 163 introduces a new the unaudited yearly FS for the purpose of website which shall be issued by stock condition for bond issues that requires an bond issuance, leaving a legal uncertainty exchange down the road. The previously issuer to fulfil any outstanding due principal whether an issuer can use the yearly issued bonds shall also comply with such and interest accrued from those bonds unaudited FS approved by its board of requirements on depositing and information issued in three consecutive years prior to the directors or members’ council for such disclosure under Decree 163 as from the current issuance. Further, transferring of purpose. Decree 163 now has relieved such effective date thereof.
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JURISDICTIONOFFSHORE UPDATE UPDATES
3 Church Street, #16-02 Samsung Hub, Singapore 049483 Tel : (65) 6603 1694, (65) 6603 1664 E: [email protected] • [email protected] W: www.walkersglobal.com By Thomas Granger and Tania Toh
Venture capital in Southeast Asia — 2018 review billion fund raising by Tokopedia, Indonesia’s e-commerce startup13. s the preeminent venture capital and private region topping US$14.7 billion in 2018 alone6. Trends in 2018 include large fund-raisings of A equity practice in the offshore legal arena, Singapore and Indonesia, as headquarters of ride-hailing companies and companies in the Walkers continues to see record activity levels in the region’s largest unicorns continued to domi- e-commerce, digital payments and online travel venture capital fund raisings and fund establish- nate the charts, with companies in Singapore and sectors. The 2018 e-Conomy SEA Report notes ments in Southeast Asia. Fundraising in Asia during Indonesia raising a total of an estimated US$7.77 that e-commerce has been the most dynamic sec- 2018 increased by 11 percent to US$81 billion billion in funding and US$3.37 billion, respectively, tor of the internet economy in Southeast Asia in with the region experiencing record deal activity in 20187. Singapore is also heavily investing in recent years with predictions that it will exceed with 5,066 transactions, a 42 percent increase developing itself as a technology and venture US$100 billion by 202514. compared to 2017 reflecting the fifth consecutive capital hub with state-linked institutions and policy- year of increasing deals1. This is consistent with makers supporting such development. Cayman Islands contribution 2018 global venture capital activity reaching a new Other Southeast Asian countries with signifi- Cayman Islands continues to remain the domicile high of 14,889 deals worth a total of US$274 bil- cant growth include Vietnam and Malaysia which of choice for venture capital and private equity lion, exceeding the previous high of US$192 bil- reached US$2.28 billion and US$842 million, funds. Cayman Islands exempted companies are lion set in 20172. respectively, in total funding8. Internet economies also the vehicle of choice for companies receiving across many Southeast Asian countries are grow- equity funding, due to investor familiarity and Southeast Asia, Singapore and Indonesia ing at significant rates bolstered by the fact that preference and also as late-stage companies move While China has traditionally dominated Asian Southeast Asian unicorns are also deploying funds toward an initial public offering or exit noting that venture capital activity, 2018 saw a surge in ven- to build businesses across the region9. Cayman Islands exempted companies feature ture capital fund raising activity in Southeast Asia. 2018 saw the highly publicised merger of heavily on the Hong Kong Stock Exchange, the Asia saw 40 newly minted unicorns in 20183, two Singapore ride-hailing company Grab and Uber New York Stock Exchange and Nasdaq. from Southeast Asia — Trax and PropertyGuru4. with the sale by Uber of its Southeast Asia-based There is increasing investor interest in Southeast business to Grab across eight countries10 and the Conclusion Asia with multiple venture capital funds being continuing US$3 billion Series H fund-raising of Looking at the year ahead, there are no signs of established with a Southeast Asian focus ranging Grab with latest figures reporting the investment any slowdown in activity. In Asia, the internet from domestic managers to spin-offs and offshoots round target at US$5 billion11. Grab has become economy is expected to exceed US$240 billion of large North American or European fund the first Southeast Asian “decacorn”, joining a by 202515. Bain & Company expects Southeast houses. According to the e-Conomy SEA 2018 league of less than 20 privately held companies Asia to produce at least 10 new unicorns by 2024 report by Google and Temasek, funds received by globally valued at over US$10 billion12. with a total value of US$70 billion16. With an internet economy companies in Southeast Asia Other notable deals include the additional increasing number of investors looking to the totalled US$24 billion in less than four years5 while US$2 billion investment in Singapore headquar- region, venture capital activity is expected to con- Dealstreet Asia estimates fund-raising levels in the tered e-commerce startup Lazada and the US$1.1 tinue to grow significantly.
1. Naomi Feliz, Insights - Alternatives in 2019: 6. Ibid. heats up”, Techcrunch, 28 December 2018 Asia pushes its way to the forefront of ven- 7. Supra, note 4. (https://techcrunch.com/2018/12/28/grab- ture capital deals, Preqin, 17 January 2019 8. Supra, note 4. 5-billion/) Ibid. 9. Supra, note 5. 12. Supra, note 5. 2. Ibid. 10. Jon Russel, “It’s official: Uber sells Southeast 13. Supra, note 4. 3. Ibid. Asia business to Grab”, Techcrunch, 26 14. Supra, note 5. 4. Dealstreet Asia, 2018: A breakout year for March 2018 15. Supra, note 5. startups in Southeast Asia, 2018. (https://techcrunch.com/2018/03/25/gruber- 16. Suvir Varma and Alex Boulton, Investing in 5. Google and Temasek, E-Conomy SEA 2018, official/) Southeast Asia: What’s Behind the Boom, Southeast Asia’s internet economy hits an 11. Jon Russel, “Grab raises fundraising target to Bain & Company, 13 November 2018. inflection point. $5B as Southeast Asia’s ride-hailing war
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THE BRIEFING
DEAL OF THE MONTH
Asian-mena Counsel Deal of the Month Noble Group restructuring New Noble emerges from the ashes of its predecessor as a private, coal-focused trading house.
aving reached a deal to restruc- remaining business will focus on coal seen their investment lose 99 percent H ture US$3.45 billion of debt and trading. of its value and will end up with 20 avoid bankruptcy, the once-power- The restructuring sees creditors percent of New Noble, while the ful commodity trading house Noble — including hedge funds Davidson members of management responsible Group is being wound up. Kempner Capital Management, Och- for that loss of value will receive 10 After failing to re-list the company Ziff Capital Management, Taconic percent of the company. in Singapore in 2018, the restructuring Capital Advisors and Varde Partners New Noble will also receive was conducted in Bermuda through — receive US$1.9 billion of new bonds US$800 million of new trade finance a special purpose vehicle, known as and preference shares, as well as a 70 and hedging support facilities as a New Noble, that will acquire substan- percent stake in New Noble. result of the agreement, while the tially all of the assets of Old Noble. The existing shareholders, which holders of US$400 million of per- Noble’s deal ends three years of include major institutions such as CIC, petual capital securities will receive crisis that followed a scathing report Templeton, Orbis and Prudential, have US$25 million of new perpetual capital into the Singapore-listed company’s securities issued by New Noble. accounting practices by a short seller. Allen & Gledhill acted as Sin- One critic described Noble as “Asia’s gapore counsel to Noble Group. Enron”. Partners Leonard Ching, Julie Sim, Having sold off some of its prime Christopher led the firm’s team in assets in a bid to avoid insolvency, the the transaction.
Other recent transactions from around the region: partners Sawanee Sethsathira and Kullapa Stavorn and Hong Ashurst has advised Bangladesh’s Roads and Highways Kong partner Simon Leung, led the firm’s team in the transac- Department (RHD) and the Public Private Partnerships tion, while Shin & Kim acted as Korean counsel. EGCO was Authority of Bangladesh on the project to upgrade the Joy- advised by Hunton Andrews Kurth as lead counsel and Kim & devpur-Debogram-Bhulta-Madanpur (Dhaka By-pass) through a Chang as Korean counsel. public private partnership. The PPP contract was signed between Davis Polk has also advised the initial purchasers on a RHD and Shichuan Road & Bridge (Group), Shamim Enterprise US$225 million Regulation S only high-yield offering by China and UDC Construction, as the winning consortium, on Decem- Aoyuan Group of its 7.95 percent senior notes due 2023. China ber 6, 2018. The Dhaka By-pass project is a key element of Aoyuan is a property developer in Guangdong, China and has been RHD’s road strategy and essential to alleviating congestion in developing residential projects for more than 15 years. Hong Kong Bangladesh’s rapidly growing capital. Partners Matthew Bubb partner Gerhard Radtke led the firm’s team in the transaction. and Anna Hermelin led the firm’s team in the transaction, while King & Wood Mallesons is advising GTA Semiconductor, Syed Ishtiaq Ahmed & Associates, with a team led by senior an indirect wholly-owned subsidiary of China Electronics, on its partner Nihad Kabir, advised on Bangladesh law. privatisation, by way of merger by absorption, of Hong Kong- Baker McKenzie has also advised SK E&S, a member of listed Advanced Semiconductor Manufacturing (ASM). Total value SK Group specialising in gas and power business, on its sale of 49 of the transaction is approximately HK$2.3 billion (US$293.3m). percent stake out of its wholly-owned Paju Energy Service, owner ASM’s H-shares were delisted in Hong Kong on January 25, of one of the largest merchant LNG power plants in Korea, to 2019. Partners Sheldon Tse (head of corporate and securities Gen Plus, a wholly-owned subsidiary of Electricity Generating of practice) and Gong Mulong (head of finance and capital markets Thailand (EGCO). The deal was valued at approximately W897 group-Beijing), supported by partners Tony Dong (tax-Beijing) billion (US$803.4m) and used the locked-box mechanism. Seoul and Chai Zhifeng (antitrust-Shanghai), led the firm’s team in the partners Won Lee and Winton Kim, supported by Thailand transaction.
14 www.inhousecommunity.com
THE BRIEFING
MOVES The latest senior legal appointments around Asia and the Middle East
AUSTRALIA HONG KONG Gadens has added Renae Suttor as a partner in its banking and finance Dechert has added to its global litigation group team. Suttor joins from MinterEllison, with 15 years of top tier experience with the hire of Maria Sit as partner in its in Sydney and London. After training at MinterEllison, she spent eleven Hong Kong office. She has extensive experi- years in London, as a key member of Clifford Chance’s market-leading ence advising on regulatory investigations and property investment and development finance practice, before returning enforcement as well as complex civil litigation to MinterEllison. Suttor specialises in real estate development and invest- and arbitration, and has previously served as an ment finance origination and restructuring, and has extensive experience in-house counsel at the Securities and Futures Maria Sit in complex, multi-jurisdictional lending and consensual workouts and Commission. restructurings.
HONG KONG AUSTRALIA Hogan Lovells has added Stephanie Tang Jones Day has added Andrew Rankine as a partner in the intellectual as a partner in the corporate practice; she will property practice in the firm’s Sydney office. A patent litigator who be based in the Hong Kong office. She will be focuses on the life sciences sector, Rankine has extensive experience joining from Shearman & Sterling. Earlier in her handling complex and high-profile patent disputes for global leaders in career, Tang was an associate in the Shanghai the pharmaceutical, biotechnology and medical device industries. His office of Hogan & Hartson, a legacy firm of client work has also involved navigating Australia’s regulatory regime for Hogan Lovells. She is an established and well- Stephanie Tang therapeutic goods, as well as the country’s Commonwealth Government regarded M&A, private equity and capital mar- reimbursement system, the Pharmaceutical Benefits Scheme. He has kets partner, with a strong track record of successfully advising Chinese counseled numerous life sciences companies on IP portfolio management, companies on their outbound investments and international companies on freedom to operate, patent validity, patent term extensions and related their investments in the Asia Pacific region. She has a strong TMT sector matters. focus. While at Sherman & Sterling, Tang represented private equity cli- ents, as well as various public companies listed in the US and China. She has managed 23 take-private transactions of US-listed Chinese companies, AUSTRALIA and various cross-border acquisitions led by Chinese private equity funds Hogan Lovells will be adding David Hol- and/or Chinese A-share listed companies. land and Charles Bogle as partners in the corporate practice, based in the Sydney office. Holland is an experienced M&A lawyer, with a INDONESIA strong background in securities law. He leads Ashurst has added Frederic Draps as a partner in its projects practice, and will bring a team of lawyers who have based in Jakarta, working at association firm Oentoeng Suria & Part- advised on some of the largest public M&A ners. It is the firm’s second partner hire in the Southeast Asia region in David Holland transactions in Australia. Beyond M&A deals, he the last two months. Draps joins from Allen & Overy’s Jakarta associated advises both issuers and underwriters on IPOs office Ginting & Reksodiputro. He specialises in the development and and publicly-listed companies on corporate gov- financing of projects in power and renewable energy, oil and gas, and ernance matters. On the other hand, Bogle has mining infrastructure sectors, and has extensive experience on projects deep experience advising on complex and inno- in Europe, the Middle East and Southeast Asia. He also has significant vative M&A transactions, with a strong focus on experience advising on cross-border disputes before international courts working with financial investors, including pri- and arbitral tribunals related to projects in the energy and transportation vate equity, infrastructure investors and direct sectors. Charles Bogle investments for super funds.
JAPAN HONG KONG Shearman & Sterling has added Karl Pires Norton Rose Fulbright has added to its debt capital markets team in as an M&A partner, based in its Tokyo office. His Hong Kong and China with the appointment of Margie Chan as partner. practice focuses on representing Japanese com- She joins the firm’s corporate team after more than a decade at both the panies on strategic acquisitions and developing New York and Hong Kong offices of Davis Polk & Wardwell, where she business ventures outside Japan. A 20-year was counsel. A debt capital markets specialist lawyer, she has extensive veteran of cross-border M&A, Pires has sig- experience working with key banks, underwriters and issuers. nificant experience advising Japanese clients in Karl Pires
16 www.inhousecommunity.com the energy, power, industrial, automotive and technology sectors. He has firm’s corporate criminal investigations and been based in Japan for over 10 years, and speaks and reads Japanese flu- white-collar criminal defence team in Seoul ently. Pires is an active member of several industry associations, including after serving important roles at various pros- the International Committee of one of the three local bar associations in ecutors’ offices in Korea for 25 years. During his Tokyo, the Canadian Chamber of Commerce in Japan and the Inter-Pacific tenure at the prosecutorial service, Cho served Bar Association. in various positions, including chief prosecutor of Seoul Western District Prosecutors’ Office, Sungwook Cho chief prosecutor of Gwangju High Prosecu- SINGAPORE tors’ Office, a senior prosecutor of the criminal department at the Seoul Ashurst has added Waltter Kulvik as a partner in its corporate transac- Central District Prosecutors’ Office and other prosecutors’ offices. He tion practice in Singapore. Joining from Sidley Austin, Kulvik specialises also performed a central role in prosecutorial administration during his in cross-border M&A and corporate work, with a focus towards infra- tenure as secretary to the president for civil affairs and assistant minister structure, power and real estate asset classes. His practice also involves for planning and coordination at the Ministry of Justice of Korea. Cho joint ventures, in particular acting for Asian clients on joint ventures with also has a broad background and experience working in government and western businesses, reorganisations and restructurings, as well as venture legislative bodies in Korea. In 2007, he served as director general for legal capital. He began his career at Gibson Dunn in London, prior to moving affairs at the Korea Independent Commission against Corruption (current to Singapore, where he specialised in private equity before focusing on Anti-Corruption & Civil Rights Commission). In addition, from 1998 to private M&A. 2000, he served as deputy director general for legislation at the National Assembly of Korea.
SOUTH KOREA Yoon & Yang has hired former chief prosecutor of Daejeon High Pros- ecutors’ Office, Sungwook Cho, as a managing partner. He joins the
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Abdul-Haq Mohammed Bashir Ahmed Jurisdiction: Bahrain, Middle East Jurisdiction: United Arab Emirates Email: [email protected] Email: [email protected] Firm: Trowers & Hamlins Firm: Afridi & Angell Title: Partner Title: Managing Partner Phone: (973) 17 515607 Phone: (971) 4 330 3900 Experience/Expertise: Project Finance, Real Experience/Expertise: Alt’ Investments (inc’ Estate & Construction Private Equity), Banking and Finance, Compliance/Regulatory, Corporate/Mergers & Acquisitions, Employment/Labour, Islamic Finance, Maritime & Aviation, Restructuring & Adv. Ali Al Zarooni Insolvency Jurisdiction: United Arab Emirates Email: [email protected] Firm: Horizons & Co Title: Partner Cheryl Cairns Phone: (971) 4 354 4444 Jurisdiction: United Arab Emirates Mobile: (971) 50 631 4431 Email: [email protected] Experience/Expertise: Banking and Finance, Firm: Trowers & Hamlins Compliance/Regulatory, Corporate/Mergers & Title: Partner Acquisitions, Employment/Labour, Insurance, Phone: (971) ) 4 351 9201 Intellectual Property, International Experience / Expertise: Real Estate & Arbitration, Investigations & Due Diligence, Construction Islamic Finance, Litigation and Dispute Resolution, Maritime & Aviation, Project Finance, Real Estate & Construction, Dennis Unkovic Restructuring & Insolvency Jurisdiction: North America Email: [email protected] Firm: Meyer, Unkovic & Scott LLP Areen Jayousi Title: Partner Phone: (412) 456 2833 Jurisdiction: United Arab Emirates Experience/Expertise: Corporate/Mergers & Email: [email protected] Acquisitions, Employment/Labour, Firm: Horizons & Co International Arbitration, International Trade, Title: Partner Real Estate & Construction Phone: (971) 4 354 4444 Mobile: (971) 50 284 2926 Experience/Expertise: Banking and Finance, Capital Markets, Compliance/Regulatory, Edmond Luke Corporate/Mergers & Acquisitions, Jurisdiction: Africa, North America Employment/Labour, Intellectual Property, Email: [email protected] International Arbitration, International Trade, Firm: FASKEN Investigations & Due Diligence, Islamic Title: Partner & Co-Leader China Finance, Litigation and Dispute Resolution, Phone: (604) 604 631 4829 Project Finance, Real Estate & Construction, Experience/Expertise: Real Estate & Restructuring & Insolvency Construction
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Jeremy Ingham Salman Ahmed Jurisdiction: Bahrain, Middle East Jurisdiction: Bahrain, Middle East Email: [email protected] Email: [email protected] Firm: Trowers & Hamlins Firm: Trowers & Hamlins Title: Partner Title: Partner Phone: (973) 17 515626 Phone: (973) 17 515 616 Experience/Expertise: Banking and Finance, Experience/Expertise: Banking and Finance, Projects and Energy Islamic Finance.
Kathleen Butterfield Tom Wigley Jurisdiction: Africa, North America Jurisdiction: Oman, Middle East Email: [email protected] Email: [email protected] Firm: FASKEN Firm: Trowers & Hamlins Title: Partner & Co-Leader China Title: Partner Phone: (416) 865 5451 Phone: (968) 2468 2928 Experience / Expertise: Banking and Finance Experience/Expertise: Energy & Natural Resources, Environmental, Life Sciences/ Healthcare, Project, Finance,Telecoms, Media Mark Stinson & Technology Jurisdiction: Africa, North America Email: [email protected] Firm: FASKEN Youssef Boulos Title: Partner & Leader Asia Pacific Group Jurisdiction: United Arab Emirates Phone: (416) 868 3444 Email: [email protected] Experience/Expertise: Corporate/Mergers & Firm: Trowers & Hamlins Acquisitions Title: Partner Phone: (971) 2 410 7616 Experience/Expertise: Corporate/Mergers & Masood Afridi Acquisitions, Real Estate & Construction, Jurisdiction: United Arab Emirates Restructuring & Insolvency Email: [email protected] Firm: Afridi & Angell Title: Partner For more information on how to have your profile Phone: (971) 4 330 3900 in the ‘Find a Lawyer’ search tool, Experience/Expertise: Corporate/Mergers & Acquisitions, Energy & please email our Publisher, Rahul Prakash, at Natural Resources, Project Finance [email protected]
Volume 16 Issue 4, 2019 19 Opportunities of the Month …
Be it a case of wanting to spice things up or break the pattern, every now and then, it's nice to know there's something else. Whether you do so casually or stringently, take a look below to see what the legal sector can offer you.
Legal Counsel — Designer Brand, Patent Counsel – Semiconductors, 4+ yrs PQE, Hong Kong 4-8 yrs PQE, Singapore A designer brand seeks a legal counsel with at least four years of A US multinational company is looking for an IP counsel to support its experience to join its team in Hong Kong. You will be commonwealth businesses. The ideal candidate would be required to have exposure to qualified with both in-house and top tier private practice experience, patent related work, licensing of intellectual property, and technology have strong contract drafting skills and be fluent in English. 3 years of transfers. This role will be based in Singapore, and will require solid private practice experience within a corporate team required. Mandarin language fluency as you will need to be confident conducting [Ref: AC7724] internal trainings in China. The successful hire will also have the Contact: Karishma Khemaney opportunity to support the company in their strategic endeavours to Tel: (852) 2537 0895 further grow the company. Candidates who are in their midst of taking Email: [email protected] their patent agent licence will also be considered. [Ref: JGB — IS 1820] Contact: Benedict Joseph Tel: (65) 6818 9707 Email: [email protected]
Senior Compliance Officer – Technology, 8+ yrs EXP, Hong Kong Great opportunity to have further career development at this world- renowned technology conglomerate in Hong Kong. You will be Senior Legal Counsel/Head of Legal – TMT, responsible for providing AML compliance support to build programs 10-15+ yrs PQE, Hong Kong that are in compliance with international and regional regulatory A reputable TMT company with diversified business is currently looking requirements. You ideally have over eight years of work experience to hire an experienced counsel for senior counsel/head of legal to with a minimum of five years’ experience in AML, compliance or lead a team and manage all legal matters relating to its business in HK risk management. Proven ability to analyse, utilise industry standards and across regions, including: Engage with business and provide legal and employ sound judgment to draw conclusions is highly desirable. support, driving strategic initiatives, advising on legal matters impacting Excellent written and oral English and Chinese skills are required. [Ref: day-to-day operations; advising business on compliance issues and 14937/AC] mitigate risks; negotiate, draft and review various commercial Contact: Kelly Zhang contracts, tenders; manage external counsels; advise on marketing Tel: (852) 2520 1168 activities and ensure compliance with relevant laws and regulations, Email: [email protected] as well as advising on HR issues. To qualify, you will be a common law qualified solicitor with around 10-15+ years of PQE, and more experienced candidates are welcome. Less experienced candidates may be considered for senior counsel. You are expected to possess solid legal experience including some in-house experience from the TMT sector (eg telecommunication, e-commerce etc). In terms of language Head of Legal – Asset Management, requirements, you are expected to be fluent in English and Chinese. 10+ yrs PQE, Hong Kong For this role, you are expected to have strong communication skills Unique opportunity for a lawyer to join this international asset manager and possess stakeholder management skills. The role offers attractive as its head of legal for Asia Pac based in Hong Kong. You must have package and an excellent opportunity to lead the legal function of a experience of advising on both the Singapore and Hong Kong markets leading reputable business. in particular. The role will also cover the PRC so fluent Mandarin Contact: Alex Tao capability is important for this role. [Ref: IHC 17386] Tel: (852) 6019 7216/2499 9293 Contact: William Chan Email: [email protected] Tel: (852) 2920 9105 Email: [email protected]
20 www.inhousecommunity.com INVESTIGATIVE INTELLIGENCE
Simon Ashenden Associate Managing Director, Security Risk Management, Kroll [email protected] Physical security key to data centre protection Controls that prevent physical access to servers must be a fundamental component of any information security programme.
ost discussions on data centre Look at business resilience and data secu- However, understanding the real security tend to focus on the use rity in tandem benefits and risks associated with these M of technology as the primary When making the move to a third-party terms can be difficult. Unfortunately, defence against cyber attacks. And, data centre, companies typically look at there is currently no comprehensive certainly, digital protections such as a provider’s ability to deliver on two key industry standard for security, so it is not endpoint detection and response solutions elements: business resilience (data unusual to see very inconsistent levels of do play a critical role. However, whether availability) and data security. However, security performance between different your data centre is maintained on your companies too often consider each factor providers. company’s premises or you have moved independently of the other and do not Data centre security is about digital operations to the cloud, having fully understand the vital synergies minimising risk and maximising controls in place that detect or keep bad between the two. operational uptime. In the digital world actors from physically accessing servers From a business risk point of view, we today, information is the new currency. must be a fundamental component of any will advise clients to investigate how Any data loss or system downtime can information security programme. resilience and security work together in a potentially have very high associated Consider the following situation. An provider’s service offering. For example, costs. One thing we can be sure of is that organisation noticed a spike in electricity companies should identify from the start criminals are always looking out for consumption at its satellite located who, in reality, is providing the service opportunities to steal data or create offshore. Among the initial concerns was and how the data centre is structured. havoc by disrupting critical the possibility that cryptomining malware A security threat assessment is infrastructure. If operators are to deliver had infected that site’s servers. They essential when designing, building and on evolving customer expectations and were right, but the culprit was not a maintaining a data centre or when needs, physical security must be a digital bug, rather it was a result of engaging with a third-party data centre primary facet of information security physical security lapse. Their local IT provider. The centre must be able to programmes. person, who had purchased the servers withstand everything from corporate citing a legitimate business reason, had espionage and low-level thieves to How a physical security expert can help installed row upon row of cryptomining terrorists to natural disasters. By Specialists in data centre physical rigs instead of hard drives. Through identifying areas of potential threat, a security such as Kroll can help clients further investigations, it was uncovered business can enable decision-makers to assess how well a data centre can meet that he was able to mine several bitcoins specify a range of cost-effective and their needs from both a performance and with an estimated value of more than practical countermeasures. risk perspective. In cases where we have US$500,000. highlighted the need for improvements, This fraud underscores why physical Navigating competing security criteria and we have worked with data centre security continues to be highly relevant real-world deliverables providers and clients around the world to — indeed, absolutely essential — to Currently, there are various industry improve their overall information security modern data centre security. With bodies that publish data centre standards and resilience. emerging trends like big data and the using different criteria in their advent of the internet and cloud-based assessments. Many data centre providers Kroll is the leading global provider of risk computing, businesses are enticed to are “aligned to” rather than “certified solutions with more than 45 years of expe- place more of their operations outside of according to” these standards. Very rience in helping clients make confident traditional IT infrastructure and into the often, these bodies use a simple tiered risk management decisions about people, data centre, where there is a real drive rating, which is enhanced with additional assets, operations and security. For more toward greater demands on its physical terms that are designed to improve the information, visit www.kroll.com. security. marketing potential of a data centre.
Volume 16 Issue 4, 2019 21 DEALS OF THE YEAR 2018 Deals of the Year Asian-mena Counsel’s review of the top transactions and matters that closed during 2018, with a congratulatory nod to those counsel who helped make them happen.
By Nick Ferguson, In-House Community
ealmakers had a tough time during 2018. Heightened volatility, a trade war between China and the US, one of the worst equity markets in recent years and rising borrowing costs all contributed to challenging A roll call of the conditions. Even so, there was no shortage of landmark deals around the region, with the help of hard- D winning deals working and creative advisers. and top advisors We review some of the stand-out transactions across all practice areas below. See the table for all the advisers …. p28-30 on each of the winning transactions, as well as those that we have given honourable mentions.
basis for the next seven years at a very competitive borrowing BANKING & FINANCE cost. The security package involved 50 dry bulk vessels owned by the Pacific Basin Group, 41 of which were subject to existing We didn’t see a lot of innovative banking and finance work mortgages. during 2018, but there were some interesting transactions in the On the restructuring side, Monnet Ispat & Energy’s corporate securitisation area, where we saw a few notable market firsts, insolvency resolution process stood out. Referred by the Reserve including the US$500 million Astrea IV private equity Bank of India under the Insolvency and Bankruptcy Code 2016, securitisation in June, which was the first transaction in it is the third of the “dirty dozen” cases to be resolved, Singapore to make private equity accessible to with 98.97 percent of the financial creditors voting retail investors through a private equity bond The in favour of the resolution plan. The process led structure. The retail tranche was for S$242 US$500m Astrea to the sale of the company to a consortium, million (US$177m). comprising of AION Investments Private II and Just a month later, Bayfront Infrastructure IV securitisation was JSW Steel. Capital infrastructure issued US$458 million the first transaction in Other notable deals included financing of notes backed by cash flows from a for the project to develop, construct, portfolio of project and infrastructure loans Singapore to make private complete, own, operate and maintain a in Asia-Pacific and the Middle East, which was equity accessible to state-of-the-art, high capacity fibre-optic the first infrastructure project finance submarine cable system connecting Japan, securitisation in Asia — and marked the creation retail investors Guam and Australia; a US$1.6 billion revolving of a new asset class to facilitate institutional credit and term loan facility for Perusahaan investor access to infrastructure debt in Asia-Pacific Listrik Negara; and Piramal Capital and Housing and the Middle East. Given the huge need for Finance structured investment in SAMHI Hotels Group. infrastructure across the region, structures like this could become extremely important. A more conventional banking deal saw Pacific Basin Shipping close a US$325 million seven-year secured reducing revolving DEBT credit facility. Donald Trump’s trade war with China hasn’t helped Hong Kong’s shipping industry, particularly after several years of Introducing new issuers to the market always involves heavy difficult operating conditions brought about by the global financial lifting for the lawyers involved, so we were particularly impressed crisis and slowing economic growth on the mainland, so this by the inaugural sovereign bond from Papua New Guinea. The transaction was an important one for the company. It increased the resource-rich frontier market had been trying to get a deal off the company’s funding flexibility and overall amortisation profile, ground since 2016 (and first contemplated one 20 years ago), but providing access to long-term committed funding on a revolving has been plagued by corruption, violence and weak governance.
22 www.inhousecommunity.com DEALS OF THE YEAR 2018 DEALS OF THE YEAR 2018 By Nick Ferguson, In-House Community
ChemChina’s
Finally getting a deal away was undoubtedly six-tranche bond investment trusts to issue debt securities, and one of the most impressive achievements of was hard to ignore — Temasek’s US$3.6 billion MTN programme, the year. which allows for notes to be offered to retail One of the challenges faced by PNG has the sale raised the investors in Singapore. been competition from some of Asia’s other equivalent of US$6.4bn In terms of sheer size, ChemChina’s six- frontier borrowers. Last year saw Sri Lanka tranche bond was hard to ignore. The sale raise US$2.5 billion in its largest offshore bond and was Asia’s biggest raised the equivalent of US$6.4 billion and was offering to date and Development Bank of ever Reg-S bond Asia’s biggest ever Reg-S bond, while the euro- Mongolia borrow US$500 million, both of which denominated tranche was the biggest ever euro were also notable deals in their own right. deal by a Chinese borrower. On the corporate side, NagaCorp became the first Cambodian issuer of offshore bonds, overcoming a weak Asian high-yield market to raise US$300 million, while Hoan My Medical Corporation closed the first bond issuance from a private and DISPUTES unlisted group in Vietnam, raising the equivalent of US$100 million in dong-denominated bonds. Singapore has made great strides during the past few years to Indonesia’s debt markets got off to a positive start in 2018, establish itself as a regional arbitration centre, and this was showing continued support for sustainability through strong demonstrated once again in one of the few cases to be disclosed demand for the Republic of Indonesia’s US$3 billion dual-tranche publicly in 2018 — Posco ICT’s SIAC arbitration proceeding against green sukuk — the world’s first-ever sovereign green sukuk and the Hitachi. The dispute arose during the building of new railway first issuance under the Republic’s green bond and green sukuk infrastructure in Ho Chi Minh City in Vietnam, with PICT suing framework. At the same time, a US$95 million bond issue from the Hitachi for breach, termination of the agreement and for damages Tropical Landscapes Finance Facility marked the first corporate and Hitachi filing a counterclaim. The case was decided in Hitachi’s sustainability bond in Asia and the first sustainability bond in favour by the arbitral tribunal and PICT’s claim was dismissed, with Asean. It will help finance a sustainable natural rubber plantation Hitachi granted US$51.79 million in damages, plus interests and on heavily degraded land in two provinces in Indonesia. costs. Other market firsts during the year included India Grid Trust’s Other disputes around the region included a case involving private placement, which was the first bond issue by an major players in the dye industry — DyStar Global and Kiri infrastructure investment trust and paved the way for other Industries — which centred around Kiri’s investment in DyStar and
Volume 16 Issue 4, 2019 23 DEALS OF THE YEAR 2018
Spring Reit’s
served to emphasise that directors must not defence of a hostile During the rest of the year there were put the interest of the majority shareholder, takeover launched by several deals that weighed in at the other who nominated them to the board, above end of the scale in terms of size — and that of the company’s interests. In this activist private equity group broke ground in their own ways. case, DyStar’s ultimate parent, Longsheng, PAG Real Estate was the first Foxconn’s US$4.23 billion deal was the was found by the SICC to have engaged in biggest A-share IPO since July 2015, oppressive conduct and was ordered to buy voluntary general offer for Xiaomi’s US$4.7 billion IPO was the first out Kiri’s shareholding in DyStar, as well as a Reit in Hong Kong and Hong Kong offering to adopt a dual-class writing the losses it caused back into the share structure and the first to list under value of the shares in DyStar. a rare hostile bid Hong Kong’s new regime for innovative In Thailand, dtac became the first telecom in the city technology companies, which was followed company to reach an agreement with its concession closely by Meituan Dianping’s own US$4.2 billion grantor, settling a long-standing tower dispute. IPO, which also adopted a weighted voting rights structure. In Vietnam, Vinhomes JSC raised about US$1.3 billion in the country’s biggest ever equity issue, while in Japan Mercari’s US$1.2 EQUITY billion IPO and listing in Tokyo made it the country’s first unicorn (a startup with a valuation above US$1 billion). Even Thailand, While 2018 was a poor year on stock markets around the world, which has had a lacklustre IPO market for years, generated some law firms in the region nevertheless helped their clients to raise buzz with the US$1.4 billion Thai Future Fund IPO, a government- billions of dollars. Indeed, the equity deals we recognised alone backed infrastructure fund that investors quickly snapped up. contributed more than US$45 billion in fresh capital. India’s IndInfravit Trust raised US$461 million in the first private By far the smallest of our winners was TMH Telecom Myanmar’s placement of units of an infrastructure investment trust. initial public offering, which generated just US$1.2 million in new Further afield, several Chinese issuers made a splash in the US capital. However, that small sum of money made it the first true with New York IPOs, including Baidu-backed iQiyi, China’s largest IPO in the country, as the first four listings were all by way of video streaming service provider, which raised US$2.25 billion; introduction of existing shares. Pinduoduo, China’s hottest e-commerce startup, which raised TMH’s deal was also one of the first IPOs to get done in 2018. US$1.6 billion; and NIO, China’s leading developer of high-
24 www.inhousecommunity.com DEALS OF THE YEAR 2018 DEALS OF THE YEAR 2018 By Nick Ferguson, In-House Community
performance electric vehicles, which raised US$1 billion. Examples included MUFG’s acquisition of a 40% stake in Bank Outside of the primary market, we also recognised San Miguel Danamon, completed in two stages for a total of US$4 billion, as Food and Beverage US$640 million follow-on offering by parent well as Toyota’s US$1 billion investment in Grab and Tokio Marine company San Miguel Corporation. The offering follows the & Nichido Fire Insurance’s acquisition of Safety Insurance from IAG consolidation of San Miguel Purefoods, leading beer-maker San in Thailand. Miguel Brewery and leading gin-maker Ginebra San Miguel into San Grab was also active as a buyer, acquiring the Southeast Asian Miguel Food and Beverage, the largest consumer company in the operations and assets of Silicon Valley rival Uber in exchange for a Philippines. 27.5% stake. Other notable secondary deals included Naspers’ US$9.8 billion When it comes to themes, there are no stronger associations stake sale in Tencent, which was the biggest secondary share sale than Singapore and real estate investment trusts. It can sometimes in the Hong Kong market to date. seem as though lawyers in the Lion City do nothing but Reits, so it comes as no surprise that the outstanding M&A deal of the year was a merger between two Reits — the US$687.5 million tie-up between ESR-Reit and Viva Industrial Trust by way of a trust scheme of M&A arrangement. Perhaps surprisingly, it is the first such merger to take place. The overall value of M&A in Asia fell slightly during 2018, partly Hong Kong also hosted some interesting Reit activity with as a result of the continued decline in activity from Chinese Spring Reit’s defence of a hostile takeover launched by activist buyers, but the figures would have looked even worse without private equity group PAG Real Estate. It was the first voluntary Walmart’s extraordinary US$16 billion acquisition of a 77% stake in general offer for a Reit in Hong Kong and a rare hostile bid in the Flipkart, India’s biggest e-commerce marketplace, which also city. PAG argued that the Reit’s external manager was inexperienced includes group companies Myntra, Jabong, PhonePe and eBay.in. in the types of assets it had acquired, resulting in poor returns for This was the world’s largest single acquisition in the e-commerce investors, though shareholders were ultimately unconvinced. space and was a standout deal in every respect. Things got hostile in Taiwan too, with Advanced Semiconductor It remains to be seen if Walmart’s deal will make sense in the Engineering’s US$3.35 billion merger with Silicon Precision long run, but some of the other deals we saw during 2018 Industries, though the outcome this time was more successful. It reinforced well-established themes, such as Japan’s continued was a marathon deal that took almost two years to complete after interest in outbound acquisitions, particularly in Southeast Asia. the signing of the merger agreement and was heavily negotiated.
Volume 16 Issue 4, 2019 25 DEALS OF THE YEAR 2018
Although the initial bid was criticised, the result is a company that into neighbouring Cambodia. In 2018, Carlsberg bought an is better equipped to withstand takeover attempts from Chinese additional 25% stake in Cambrew, giving it management control of buyers, thus keeping Taiwan’s industry expertise onshore. All told, the Cambodian brewer of the iconic Angkor Premium Beer. this was perhaps the most complex, interesting and economically significant deal in recent Taiwanese history. In India, we saw significant consolidation in the troubled steel industry, with ArcelorMittal and Japan’s Nippon Steel & Sumitomo PRIVATE EQUITY/VENTURE CAPITAL Metal winning an auction to acquire the debt-laden Essar Steel and rescue it from insolvency, although the deal remains mired in In a year when markets were volatile and sentiment towards controversy as the company’s promoters fight in the courts to China in particular was weak, Ant Financial closed an incredible retain control. Meanwhile, Vedanta bought 90% of Electrosteel series-C funding of US$14 billion — the biggest single-funding round Steels for US$813 million in a deal that was also implemented ever. The deal attracted top-tier names such as Singapore’s state- pursuant to a resolution plan approved by the Indian owned investment funds GIC and Temasek, plus US National Company Law Tribunal, in accordance with private equity firm Warburg Pincus. If a unicorn is an India’s Insolvency and Bankruptcy Code 2016. In a year unlisted VC-backed company with a valuation of In Indonesia, 2018 finally brought to more than US$1 billion, then what is the term conclusion a US$4 billion deal that results in when markets were for one valued at more than US$150 billion? the creation of the country’s largest state- volatile and sentiment It’s tough to compete with a deal like owned holding company. This two-stage that, but other notable deals during the towards China in particular deal has been underway since 2012. In the year included fundraising for Vision Plus second stage, 51 percent of shares in was weak, Ant Financial closed Capital Partners, with two funds totalling Pertamina subsidiary Pertamina Gas an incredible series-C funding US$500 million, consisting of a RMB- owned by Pertamina were transferred to denominated fund II and a US dollar- Perusahaan Gas Negara, with a purchase of US$14bn — the biggest denominated fund II, each at US$250 price of US$1.35 billion. single-funding round million or equivalent amount. PAG Asia Foreign breweries have been competing Capital also formed a new US$6 billion buyout to tap into Vietnam’s market for quite a few ever fund. years now, and that action has recently spilled over In terms of acquisitions, we saw a TPG and
26 www.inhousecommunity.com DEALS OF THE YEAR 2018 DEALS OF THE YEAR 2018 By Nick Ferguson, In-House Community
Carlyle-led investment in Baidu financial services unit Du Xiaoman easier to finance as more international financial institutions Financial for US$1.9 billion, SoftBank Vision Fund’s US$2 billion withdraw from coal deals. Taiwan’s Formosa 1 offshore windfarm investment in Coupang, KKR’s acquisition of Ramky Enviro Engineers project financing is a US$619 million 16-year project to finance the for US$530 million and Standard Chartered Private Equity’s development, construction, commissioning, testing and operation acquisition of Travel Boutique Online from Naspers. of Taiwan’s first commercial-scale offshore wind farm — the first step towards Taiwan achieving its objective of delivering 5.5 gigawatts of energy from offshore wind farm projects by 2025. The financing package is being provided through international and local PROJECTS banks, as well as Denmark’s export credit agency, and will be used to refinance the first phase of the wind farm (8MW that started Given the scale of Asia’s projected infrastructure needs, operations in April 2017) and fund the development of the second governments and sponsors around the region are under pressure to phase (120MW due to be completed in late 2019). come up with billions of dollars to pay for new roads, railways, ports While both of those deals rely on bank financing, capital and power plants — and that typically means structuring projects in markets are also an important avenue if Asia is to meet its a way that allows banks or investors to take part. There are still too infrastructure needs. In Laos, EDL-Generation’s issue of a multi- few bankable projects, but we saw some notable deals in 2018. tranche baht bond raised the equivalent of US$410 million to fund The Macquarie-backed national highway project in India is the the expansion of its hydropower generating capacity. country’s first national road project undertaken on toll, operate and transfer basis. The funding came through three rupee term-loan facilities aggregating to an equivalent of US$853 million, for financing the upfront concession fees payable to the National METHODOLOGY Highways Authority of India, meeting the costs to be incurred for initial improvement works of the project highways, first major Unlike in previous years, we selected our winning deals this maintenance expenditure and for other transaction-related costs. year based on submissions to the Weekly Briefing newsletter that Keeping up with the demand for power is a never-ending we received during the year. To make sure your deals are challenge as Asia’s economies continue to grow. Building more coal- considered for next year’s Deals of the Year, please make sure to fired plants is the quickest and cheapest solution for many send your completed deal announcements to countries, but renewable solutions are gaining ground and can be [email protected].
Volume 16 Issue 4, 2019 27 DEALS OF THE YEAR 2018
From January to December, the Asian-mena Counsel Deals of the Year (Winners & Honourable Mentions.) Congratulations to all the in-house and external counsel who had a hand in making them happen! MONTH DEAL ADVISERS January WINS TMH Telecom Myanmar IPO Allen & Gledhill Bandhan Bank IPO AZB & Partners; Clifford Chance; Cyril Amarchand Mangaldas; HMs Khaitan & Co; Shardul Amarchand Mangaldas
February Republic of Indonesia green sukuk Clifford Chance; Norton Rose Fulbright WINS TLFF sustainability bond HHP Law Firm
March Advanced Semiconductor Engineering merger with Silicon Baker McKenzie; Davis Polk & Wardwell; Simpson Thacher & Precision Industries Bartlett
ChemChina six-tranche bond Commerce & Finance; Davis Polk & Wardell; Jingtian & Gongcheng; Latham & Watkins
WINS Grab acquisition of SE Asian operations of Uber ABNR Counsellors at Law; Allen & Gledhill; Audier & Partners; Gibson, Dunn & Crutcher; Rahmat Lim & Partners; SyCip Salazar Hernandez & Gatmaitan; Vilaf; Weerawong C&P
iQIYI Nasdaq IPO Davis Polk & Wardwell; Han Kun Law Offices; Jingtian & Gongcheng; Skadden, Arps, Slate, Meagher & Flom
HDFC Bank debut masala bond J Sagar Associates
HMs ICICI Securities India IPO Cyril Amarchand Mangaldas; Davis Polk & Wardwell; S&R Associates Naspers stake sale in Tencent Davis Polk & Wardwell; Paul, Weiss, Rifkind, Wharton & Garrison; Webber Wentzel; Werksmans Attorneys April WINS Democratic Socialist Republic of Sri Lanka bond Allen & Overy; FJ&G de Saram; Mayer Brown Bank of China multi-currency bond Clifford Chance; Jingtian & Gongcheng; JunZeJun Law Offices; HMs Linklaters
May NagaCorp high-yield bond DFDL; Freshfields Bruckhaus Deringer; HML Law Group; Latham WINS & Watkins; Maples and Calder Vinhomes IPO Allen & Overy; Latham & Watkins; Vilaf
Alibaba Group strategic investment in ZTO Express Fangda Partners; Ropes & Gray; Skadden, Arps, Slate, Meagher & Flom
IndInfravit Trust J Sagar Associates; Shardul Amarchand Mangaldas & Co HMs Ping An Healthcare and Technology Hong Kong IPO Clifford Chance; Davis Polk & Wardwell; DLA Piper; Grandall Law Firm; Haiwen & Partners; Maples and Calder
TPG, Carlyle-led investment in Du Xiaoman Financial Maples and Calder; Skadden, Arps, Slate, Meagher & Flom
Vision Plus Capital Partners fundraising Skadden, Arps, Slate, Meagher & Flom
June Ant Financial series-C funding Allen & Overy; Clifford Chance; Fangda Partners; Harneys; Kirkland & Ellis; Mayer Brown; Morrison Foerster; Simpson Thacher & Bartlett; Sullivan & Cromwell; White & Case
Astrea IV private equity securitisation Allen & Gledhill
Formosa 1 wind farm project financing Clifford Chance; Lee and Li; Linklaters; Tsar & Tsai
WINS Foxconn A-share IPO Fangda Partners
Mercari Tokyo IPO Nishimura & Asahi; Simpson Thacher & Bartlett; Skadden, Arps, Slate, Meagher & Flom
Pacific Basin Shipping secured reducing revolving credit facility Mayer Brown
Vedanta acquisition of Electrosteel Steels Ashurst
Ascendas-Singbridge Group and Temasek Holdings investment in Allen & Gledhill; WongPartnership Ascendas India Logistics
HMs Japan-Guam-Australia subsea cable financing Rajah & Tann
Toyota investment in Grab Gibson, Dunn & Crutcher
28 www.inhousecommunity.com DEALS OF THE YEAR 2018 DEALS OF THE YEAR 2018 By Nick Ferguson, In-House Community
Asian-mena Counsel Deals of the Year 2018 – Winners & Honourable Mentions (HMs) MONTH DEAL ADVISERS July Bayfront Infrastructure Capital infrastructure project finance Allen & Gledhill; Clifford Chance; Latham & Watkins; Linklaters securitisation
EDL-Generation multi-tranche bond Allen & Overy; LS Horizon
Monnet Ispat & Energy corporate insolvency resolution process Cyril Amarchand Mangaldas; Shardul Amarchand Mangaldas & Co
WINS Pinduoduo Nasdaq IPO Jingtian & Gongcheng; King & Wood Mallesons; Kirkland & Ellis; Maples and Calder; Skadden, Arps, Slate, Meagher & Flom; White & Case
Posco ICT SIAC arbitration proceeding against Hitachi Allen & Gledhill; Mori Hamada & Matsumoto
Xiaomi Hong Kong IPO Clifford Chance; Jingtian & Gongcheng; JunHe; Maples and Calder; Skadden, Arps, Slate, Meagher & Flom
DyStar Global Holdings (Singapore) v Kiri Industries & Ors Allen & Gledhill
IHH Healthcare acquisition of Fortis Healthcare Allen & Gledhill; Cyril Amarchand Mangaldas; Khaitan & Co; L&L Partners; Trilegal
Indus Towers-Bharti Infratel merger AZB & Partners; Bharucha & Partners; Nishith Desai Associates; S&R Associates; Slaughter and May
HMs Piramal Capital and Housing Finance structured investment in J Sagar Associates SAMHI Hotels Group
Standard Chartered Private Equity acquisition of TBO Group from Cyril Amarchand Mangaldas; J Sagar Associates Naspers
UPL acquisition of Arysta LifeScience Cleary Gottlieb Steen & Hamilton; Greenberg Traurig; J Sagar Associates; Jones Day; Platinum Partners
August Carlsberg acquisition of an additional 25% stake in Cambrew Baker McKenzie
India Grid Trust private placement of debt securities Khaitan & Co
Macquarie Asia Infrastructure Investments 2 national highway Bharucha & Partners; Cyril Amarchand Mangaldas; HSA project Advocates
MUFG Bank acquisition of 40% stake in Bank Danamon Allen & Gledhill; Baker McKenzie (Gaikokuho Joint Enterprise); WINS Baker McKenzie Wong & Leow; Herbert Smith; HHP Law Firm; Hiswara Bunjamin & Tandjung; Makes & Partners; Nishimura & Asahi; WongPartnership
Walmart acquisition of Flipkart Allen & Gledhill; Dentons Rodyk; Gibson, Dunn & Crutcher; Gunderson Dettmer Stough Villeneuve Franklin & Hachigian; Hogan Lovells; IndusLaw; Khaitan & Co; Shardul Amarchand Mangaldas; WongPartnership
Adani Transmission acquisition of Reliance Infrastructure’s Mumbai J Sagar Associates Power Division
China Tower Hong Kong IPO Clifford Chance; Freshfields Bruckhaus Deringer
HMs CreditAccess Grameen IPO Clifford Chance; Cyril Amarchand Mangaldas; L&L Partners
KKR acquisition of Ramky Enviro Engineers Cyril Amarchand Mangaldas; Linklegal India Legal Services; Simmons & Simmons; Simpson Thacher & Bartlett; WongPartnership
September Meituan Dianping IPO Davis Polk & Wardwell; Maples and Calder ; Skadden, Arps, Slate, Meagher & Flom WINS NIO New York IPO Grandall Law Firm; Han Kun Law Offices; Latham & Watkins; Maples and Calder; Skadden, Arps, Slate, Meagher & Flom
CDPQ Infrastructures Asia II acquisition of 40% of CLP India Cyril Amarchand Mangaldas; King & Wood Mallesons; Shearman & Sterling; Trilegal
China Re acquisition of Chaucer from The Hanover Insurance Group Debevoise & Plimpton; Sidley Austin
HMs Perusahaan Listrik Negara revolving credit and term loan facility Baker McKenzie Wong & Leow; HHP Law Firm Tokio Marine & Nichido Fire Insurance acquisition of Safety Baker McKenzie Insurance from IAG
Total Access Communication tower dispute with Communications Weerawong C&P Authority of Thailand
Volume 16 Issue 4, 2019 29 DEALS OF THE YEAR 2018
Asian-mena Counsel Deals of the Year 2018 – Winners & Honourable Mentions (HMs) MONTH DEAL ADVISERS October Development Bank of Mongolia bond Allen & Overy; Mayer Brown
ESR-Reit merger with Viva Industrial Trust Allen & Gledhill; Dentons & Davidson; Rajah & Tann; Shook Lin & Bok; WongPartnership
Essar Steel auction and acquisition by ArcelorMittal Cyril Amarchand Mangaldas; L&L Partners; Shardul Amarchand Mangaldas & Co WINS Hoan My Medical Corporation dong-denominated corporate bonds Freshfields Bruckhaus Deringer; Russin & Vecchi; Vilaf; YKVN
Papua New Guinea inaugural sovereign bond Dentons; Linklaters
Temasek retail bond Allen & Gledhill; Latham & Watkins
Thai Future Fund IPO Baker McKenzie; Latham & Watkins; Weerawong C&P
Booking.com investment in Grab Sullivan & Cromwell
DHL sale of Greater China supply chain operations to SF Holding Clifford Chance
Haidilao International Holding IPO Clifford Chance; Conyers Dill & Pearman; Drew & Napier; Jingtian & Gongcheng HMs Minsheng Financial Leasing marine container refinancing Stephenson Harwood Mitsubishi UFJ acquisition of Colonial First State Global Asset Baker McKenzie; Baker McKenzie (Gaikokuho Joint Enterprise); Management Sullivan & Cromwell
Opus Group scheme of arrangement and listing in Hong Kong Conyers Dill & Pearman; King & Wood Mallesons
Pune Metro Line III (Hinjewadi-Shivajinagar) Project HSA Advocates; J Sagar Associates
November San Miguel Food and Beverage follow-on offering Latham & Watkins; Milbank, Tweed, Hadley & McCloy ; Picazo, Buyco, Tan, Fider & Santos; SyCip Salazar Hernandez & WINS Gatmaitan Spring Reit hostile takeover defence vs PAG Real Estate Ashurst; Baker McKenzie; Kirkland & Ellis
2.5GW Gulf Sriracha gas-fired combined cycle power plant project King & Spalding
PAG Asia Capital buyout fund formation Kirkland & Ellis
HMs Semen Indonesia acquisition of 80.6% stake in Holcim Indonesia Baker McKenzie Wong & Leow; HHP Law Firm; Latham & Watkins; Tjajo & Partners
SoftBank Vision Fund investment in Coupang Weil December WINS Indonesian Oil and Gas Holding SoE SSEK Zydus Wellness and Cadila Healthcare acquisition of Heinz India Cyril Amarchand Mangaldas; Gibson, Dunn & Crutcher; HMs Khaitan & Co; Shardul Amarchand Mangaldas & Co
Asian-mena Counsel Deals of the Year 2018 – Top Advisers
ASIAN FIRMS WINS HMs INTERNATIONAL FIRMS WINS HMs 1 Allen & Gledhill 9 3 1 Latham & Watkins 8 1
2 Jingtian & Gongcheng 4 2 2 Skadden, Arps, Slate, Meagher & Flom 6 3
3 Cyril Amarchand Mangaldas 3 8 3 Clifford Chance 5 7
4 Shardul Amarchand Mangaldas & Co 3 3 4 Baker McKenzie 5 4
5 WongPartnership 3 2 5 Maples and Calder 5 2
6 Vilaf 3 0 6 Allen & Overy 5 0
7 Khaitan & Co 2 3 7 Davis Polk & Wardwell 4 3
8 HHP Law Firm 2 2 8 Mayer Brown 4 0
9 Weerawong C&P 2 1 9= Kirkland & Ellis 3 1
10 Han Kun Law Offices 2 0 9= Linklaters 3 1
9= Simpson Thacher & Bartlett 3 1
30 www.inhousecommunity.com DEALS OF THE YEAR 2018 SPECIAL FEATURE
Significant changes to UAE’s Civil Procedure Code While the changes are welcome, they put pressure on litigants to plead their cases within relatively short time periods.
By Chatura Randeniya and Nazim Hashim of Afridi & Angell
ignificant changes to the UAE’s Federal may be served by voice or video calls, text Law No 11 of 1992 (the Civil Procedure messages, fax or any other alternative means Code) came into effect on February 16, determined by the Minister of Justice. 2019. These changes were introduced Importantly, Article 5 provides that if the throughS regulations issued under the Civil official language of the defendant is not Arabic, Procedure Code (the Regulations). the plaintiff is required to provide an official The Regulations (in all, 193 articles) translation of the court notice in English. address a wide array of litigation procedures. Some of the Regulations codify practices already observed by the UAE Courts. In this “The efficient conduct of litigation is a recurring article, we set out a high-level overview of some of the Regulations that impact both theme in the Regulations. The Regulations require litigants and practitioners alike. Unless parties to plead their cases as completely as possible otherwise stated, the Article numbers refer to the Regulations. at the hearing before the Case Management Office (ie, before the matter is transferred to a court)” Service of process According to the Regulations, a court may permit a party or its attorney to serve process. Process can be served between 7am and 9pm, unless served electronically, in which case the time limits do not apply. Process
32 www.inhousecommunity.com Significant changes to UAE’s Civil Procedure Code By Chatura Randeniya and Nazim Hashim of Afridi & Angell
Service on parties domiciled abroad may period is 24 hours, which may be reduced to one be effected through “technological means, or hour on the condition that notice is served on private companies and offices, or as otherwise the defendant personally. While Article 18 goes agreed between the parties”, and if service on to carve out an exception for maritime cannot be so effected, process will be served claims, the scope of the exception is currently through diplomatic channels. unclear. Proceedings in the UAE Courts are Registration of cases commenced by filing the plaint and A Statement of Claim/Plaint should include the supporting evidence (electronically or in details of the defendant(s) including person) with the relevant court. information regarding the defendant’s Thereafter, the Case Management Office identification number, which is applicable with of the court will fix the court fee respect to individual defendants. The practice payable, and complete the registration of the Dubai Courts with respect to corporate of the case upon receiving payment defendants is to require a copy of the and completing any documentary defendant’s trade licence at the time of requirements which may be identified registering the case. It is therefore of by the Case Management Office. practical significance that parties have Given that there can be a copies of their counterparties’ ID and/or considerable passage of time licensing documents with them, and between filing the plaint and obtaining such documentation should completing the registration in form part of best practice when some instances, this led to entering into transactions. uncertainty regarding the date on Certain Regulations are evidently which action was commenced, intended to speed up litigation which is an important procedures. Article 18, for example, consideration in determining provides that the period allowed for whether time bars and other the defendant to appear in the time related deadlines under Case Management Office or the law have been complied with. court following registration of the Article 19 clarifies that the case is 10 days, which may be date of registration is deemed reduced to three days. Where to be the date on which the summary claims are concerned case was submitted to the (such as applications for court system, and not the provisional attachment) this date on which the registration of the case is completed.
Volume 16 Issue 4, 2019 33 SPECIAL FEATURE
Assessment of Case Value acceptable, and the party seeking to deny Assessment of case value is an important documents will also be required to maintain practical consideration, as it has a bearing on that such documents are “invalid” or were not jurisdiction, appeal thresholds, and of course in fact authored by the party to whom they are the court fees payable by a plaintiff. Article 23 attributed to (Article 20). A party that has provides that minor circuits (as set out in denied documents and the court finds that the Article 30(1) of the Civil Procedure Code) will party’s denial was without justification may be have jurisdiction over civil, commercial and subject to a fine of between Dh1,000 to labour claims not exceeding Dh1 million Dh10,000. Importantly, the court may inform (US$272,000) in value (the threshold previously the authorities regulating the legal profession being Dh500,000), and counterclaims asserted in the UAE of the fine, and thus impacts the Chatura Randeniya in such cases irrespective of the value of the advocates having conduct of litigation. Fines counterclaim. Decisions made by the minor for frivolous denials of documents are not new, circuit court in labour cases valued at no more however its codification is a welcome than Dh20,000 and in all other cases valued at development. no more than Dh50,000 may not be subject to The efficient conduct of litigation is a appeal. The current threshold is Dh20,000 for recurring theme in the Regulations. The all types of cases. The threshold (in terms of Regulations require parties to plead their cases value) for appealing a judgment of the Court of as completely as possible at the hearing before Appeal to the Court of Cassation is Dh500,000. the Case Management Office (ie, before the The current threshold is Dh200,000. Article 25 matter is transferred to a court). If the contains provisions for assessing case values in plaintiff or the defendant submits a document various types of disputes. For example, an in a subsequent session which requires the action for the dissolution of a company and court to adjourn the matter, and the court is appointment of a liquidator is valued based on of the view that the document could have been the company’s capital at the time of filing submitted at the first hearing, the court may action. penalise the party submitting the document with a fine between Dh2,000 to Dh5,000. A “While the law and the Regulations provide that the party may however produce documents in response to the defences and/or incidental court may award costs, in practice the UAE Courts demands of the other party without threat of do not award legal costs, except in a token sum” sanction. A court may allow the parties to submit documents, submissions and new evidence, and to amend the relief sought and Conduct of Proceedings assert counterclaims that they were unable to Certain claims may now be disposed of with submit to the Case Management Office. only one hearing by a minor circuit court However, the court at its discretion may deny (Article 22). These claims include civil and such submissions if the court is of the view commercial claims not exceeding Dh100,000 that they could have been made to the Case and claims for wages and salaries not Management Office. exceeding Dh200,000. The Case Management Article 37 provides that a hearing may not Office is required to fix a case which is to be be adjourned more than once for the same disposed of under Article 22 for its first hearing reason attributable to a party in the absence of within 15 days of the date of registration of a valid excuse. Where such a valid excuse the case, and this may be extended only once exists, the second adjournment shall not with an additional 15 days by the judge exceed two weeks. Pursuant to Article 48, supervising the matter. Article 22 does not judgment must be issued within a month of apply to cases in which the State is a party. pleadings being concluded. Denying documents on the basis that they are copies (based on Article 9(2) of the Federal Costs and fines for malicious Law No 10 of 1992) is a position commonly prosecution/defence adopted by parties, particularly defendants. While the law and the Regulations provide that Denying documents simply on the basis that the court may award costs, in practice the UAE they are copies will however no longer be Courts do not award legal costs, except in a
34 www.inhousecommunity.com Significant changes to UAE’s Civil Procedure Code By Chatura Randeniya and Nazim Hashim of Afridi & Angell
token sum. Court fees and expert’s fees are enforce a judgment or order of a foreign court however recoverable by a successful plaintiff. shall be made to an execution judge, and that Article 56 provides that even a party that is the judge is required to make his decision successful on the merits of the case may be within three days. The execution judge is required to bear a portion of the expenses if required to verify the following before issuing that party has, among other things, caused any the decision: “futile expenses” or did not disclose documents • that the UAE Courts do not have exclusive that could have disposed of the matter to its jurisdiction over the matter; opponents. A party that submits a malicious • that the judgment or order has been issued motion, plea or defence may be subject to a by an authorised court under the law of the fine of between Dh1,000 and Dh10,000 (Article relevant foreign jurisdiction; 58). • that the parties to the foreign proceedings Nazim Hashim have been summoned and represented; Payment Orders • that the foreign judgment/order sought to Articles 62 through 68 set out provisions with be enforced is res judicata under the laws of respect to Payment Orders. Payment Orders are the relevant foreign jurisdiction; and not new and the relevant provisions can be • that the foreign judgment/order sought to found in Articles 143 to 149 of the Civil be enforced is not contrary to judgment or Procedure Code. Payment Orders may be order of a UAE court, and is not contrary to applied for by a creditor who has a claim for a the morals and public order of the UAE. fixed amount of money or a movable of a known type and quantity, and where the creditor’s right is confirmed. The Regulations enable the “An application for a Payment Order does not preclude possibility of confirmation by reference to the party from seeking provisional relief under the electronic sources, as well as the option of applying for a Payment Order where the subject relevant provisions of the Civil Procedure Code” of the claim is the execution of a commercial contract, or in case the creditor’s entitlement The provisions of Article 85 are also arises out of a commercial instrument. Pursuant applicable to arbitral awards issued in a foreign to Article 63, the creditor is required to jurisdiction. Article 86 adds that the subject demand payment from the debtor and grant at matter of the foreign arbitral award must be least five days to make payment. If payment is arbitrable according to the laws of the UAE, not received, a Payment Order may be applied and the award must be enforceable in the for. The application must include the details jurisdiction in which it was issued, in order to required of a Statement of Claim/Plaint, and seek enforcement in the UAE. Articles 85 and have the proof of the debt and evidence of the 86 are without prejudice to the provisions of demand for payment attached thereto. The any treaties entered into by the UAE with order should be determined within three days respect to the enforcement of foreign of the application being filed. If the application judgments, orders or awards. The New York is denied, the judge is required to provide Convention is an example of such a treaty. reasons. Prior to the Regulations, there was no requirement for the judge to provide reasons. A Conclusion Payment Order may be appealed within 15 days Overall, the Regulations are directed towards by the debtor, and the court is required to quick and efficient litigation, and will be determine the appeal within a week from the welcomed by parties and practitioners. date of registration. However, they put considerable time pressure An application for a Payment Order does not on litigants, particularly on defendants, to preclude the party from seeking provisional ensure that their respective cases are pleaded relief under the relevant provisions of the Civil fully within relatively short time periods. Procedure Code.
[email protected] Enforcement of foreign judgments and [email protected] awards www.afridi-angell.com Article 85 provides that an application to
Volume 16 Issue 4, 2019 35 SPECIAL FEATURE
The art of deal management
Oliver Mould, head of Asia for Lawyers On Demand, speaks with Nick Tomlinson about his background, career, current role as general counsel for Asia Pacific at Dentsu Aegis Network and the importance of deal management.
Tell us a bit about your background and your through senior lawyers with seven direct reports current remit as general counsel, Asia Pacific, into me. My current remit is primarily focused at Dentsu Aegis Network? on five main areas: commercial and client work, I began my legal career in New Zealand with the data and privacy, mergers and acquisitions, law firm Bell Gully, in the litigation department, compliance and management. working primarily on competition matters and associated regulatory issues with market access, How involved are you in transactions, and the particularly in the telecoms and energy broader strategies associated with them? markets. I made a natural progression into an Since 2009, I have been involved, at some level, in-house role at Vodafone. I left New Zealand in with every acquisition made by DAN in Asia 1997, spent some time in Canada, then Pacific. We tend to average between eight and relocated to Hong Kong in 1998. I joined Hong 12 acquisitions a year, so we have plenty of Kong Telecom and was with that telecoms group experience in managing deals. Many of these under various ownership for 10 years. acquisitions are bolt-on acquisitions of private In 2008, I took some time out, when I was companies, but we do also complete a few entertaining an alternative career in the larger strategic public company acquisitions, for restaurant business and trained at Le Cordon example the acquisition of the Mitchell Bleu in Paris. Following the global financial crisis Communications Group in Australia in 2010. I in 2008, I decided to join Aegis Group in 2009 was also heavily involved with the integration of and I’ve been here ever since. In 2013, Dentsu Aegis and Dentsu. acquired Aegis and formed DAN, which is now In terms of how we operate during the M&A the fourth largest advertising group in the world. process, I work very closely with our M&A director and the C-suite in Asia Pacific. Additionally, we “In 2008, I took some time out, when I was work closely with the group M&A team and the group strategy team in London, with all of our entertaining an alternative career in the transactions required to be approved by the M&A restaurant business and trained at Le Cordon Committee of the DAN Board. This requires a thorough level of preparation and understanding Bleu in Paris” of the target business. Given the demands of M&A transactions, we At DAN, I started as Asia-Pacific legal counsel manage them centrally from regional in Hong Kong in February 2009 before relocating headquarters in Singapore and thus we need to to Singapore in 2010, and now I work as the ensure that we resource our legal function general counsel for Asia Pacific (excluding properly for our various deals. I rely on Will Finn, Japan), running a team of about 35 lawyers and a very capable senior corporate counsel, and we compliance professionals. This team is managed also have other more junior counsel. We also like
36 www.inhousecommunity.com The art of deal management By Oliver Mould of Lawyers On Demand and Nick Tomlinson of Dentsu Aegis Network
to flexibly resource our teams to support an acquisition. We use LOD as it provides us the resource we need, coupled with great billing flexibility, so we can allocate costs to particular deals. Then of course we have preferred counsel we use — our panel. We’ve actually just gone through an RFP [request for proposals] process Nick Tomlinson and we’ve nominated new law firms to our panel focused on M&A for Asia Pacific. This was a very team are ex-Big Four and have significant deal beneficial process for us to do. experience. Further, our panel law firms have established project management capabilities in Did anything surprise you going through the their offering — this is part of the reason we RFP process? were attracted to them. It was quite a surprising process, in a good way. Our in-house legal team doesn’t have project At a broad level, we learned three things. First, management disciplinarians in the traditional incumbency can lead to complacency and this sense. We have lawyers with deal experience but really showed during the pitching. Given we’re no dedicated project management function as an advertising business, pitching is part of our part of the legal team. The legal team isn’t blood, so we are very aware of what works and involved from the very beginning of a deal — we what doesn’t in a pitch. Secondly, we are are typically involved once pricing has been starting to see a whole raft of new technologies agreed and the letter of intent needs to be and structures emerge in the legal services drafted and negotiated. At that point we work market. Thirdly, we saw surprising levels of with our internal M&A team and our panel firms competitive pricing — both overall and in through due diligence, negotiation and execution charging structures, where we have seen a shift to project manage transactions. We are also away from pure hourly billing to charging involved in all facets of legal and compliance structures based on tasks and outcomes. integration. One area of increasing focus for us is a How significant a part does project robust integration process, and to that end we management play in respect of deal activity? are involving our local GCs much earlier on in Project management is a very important part of transactions prior to reaching completion. We getting deals done — I don’t think anyone would are finding this provides a much smoother argue that point, especially when you have process generally, but particularly in relation to multiple continuing transactions at various integration. stages. For us, this management is normally led I believe that M&A is a specialist discipline by our M&A function. All of the people in that that requires a level of experience, but also the
Volume 16 Issue 4, 2019 37 SPECIAL FEATURE
and wait for someone to get back to us. We continually push the momentum to maintain flow. I believe that good M&A requires momentum and if you lose it, you lose energy and doubts can begin to emerge. Saying that, Oliver Mould we’re alive to the fact that too much momentum can give rise to “deal fever” — right touch. This is something we value in terms causing people to lose sight of important issues. of how we view potential M&A hires. But we For example, once through the due diligence don’t look for the same touch in roles around the process, a target might not be as attractive. To region more focused on general commercial keep the balance between momentum and work. Ensuring successful collaboration among thoughtfulness, we build in pause-points to specialists and generalists is a continuing re-evaluate the deal. This is incredibly management challenge where I feel some pride in important. the progress we have made over the past couple of years. Successful transition from a new target How important do you feel collaboration is, to a fully integrated business-as-usual operation both internal and external, to ensure a contributing to our sustainable profit growth is transaction is completed successfully? the holy grail of our M&A approach and the legal Collaboration is crucial in all respects. We need team has a huge part to play in this process. to collaborate with targets and advisers. We also really need advisers to collaborate with each “One area of increasing focus for us is a other. Something I find very frustrating is when bankers, accountants and lawyers get testy with robust integration process, and to that end each other — it’s unproductive. Moreover, legal we are involving our local GCs much earlier advisers who are very adversarial can lose sight of what the client wants to achieve. We look for on in transactions prior to reaching counsel who are collaborative, insightful and completion. We are finding this provides a efficient. This helps us achieve our desired outcomes free of personal prejudices — not much smoother process generally” something that is always easy to achieve. Something I’ve learned over my legal career What are the personal principles you adopt and particularly at DAN is that different markets to ensure successful project management? have very different legal and deal styles. And it’s Focusing on M&A, the overriding principle we quite an art form for us to manage and adopt is the active management of deal understand the different styles. pipelines and process. We don’t like to sit back For most significant negotiations, I or my
38 www.inhousecommunity.com The art of deal management By Oliver Mould of Lawyers On Demand and Nick Tomlinson of Dentsu Aegis Network
“The whole arena of alternative legal provision is an exciting one. Combining lower cost services, better charging structures and the smart use of technology is very compelling”
senior corporate counsel will attend. Then, if example of a new and better approach to the meeting is starting to go off-piste or get managing the cyclical nature of deal work. It overly heated, we can step in and reorient allows us to flex resource up and down discussions. I see my job as very much managing depending on need and further allows us to the room. Over time, you build relationships charge that cost to a specific transaction. with trusted advisers such that you can trust them to do a good job of advocacy without As a general counsel, what are the more resorting to dogmatism. We’re not interested in exciting developments you are seeing from working with big egos. your service providers? Generally, the whole arena of alternative legal To what extent do you take an innovative provision is an exciting one. Combining lower approach towards resourcing for transactions? cost services, better charging structures and the Are there any specific methods and structuring smart use of technology is very compelling. From arrangements you are more frequently using? my GC perspective, I’m interested in the In terms of structuring arrangements, our deals changes and trends across the board — from normally involve entrepreneur-founded, private innovating traditional law firms and new advertising and marketing businesses. Most of alternative legal providers to technology-based those deals rely on some sort of earn-out solutions. Recently, we’ve been piloting artificial arrangement. While there will be an upfront intelligence-based contract review and I believe payment, there is then normally performance- that curated AI will be a likely resource solution based earnings over several years. We are not in in the near future, although early ambitions the business of stepping into asset-heavy have been tempered by the reality of current companies and getting rid of management. We technology. I’m also excited by the move away are in the business of building sustainable from traditional hourly billing towards tasked- growth through growing our client base and our based billing. Firms adopting a mixture of capability pool, and deferred consideration is alternative legal service provision, technology part of aligning incentives in this direction. It is and insight are the most interesting. therefore important to maintain very good relationships throughout the transaction deal process. We have emphasised thoughtful integration engaging the target principals as crucial to transaction success. In respect of innovative approaches to resources, I don’t think that we are on the [email protected] [email protected] bleeding edge of the innovation curve. However, www.lodlaw.com www.dentsuaegisnetwork.com our use and deployment of LOD is a great
Volume 16 Issue 4, 2019 39 ASIAN-MENA COUNSEL Q&A The thing about …
The dean of Peking University School of Transnational Law in Shenzhen discusses the development of legal education in China.
What is the background of the Peking University STL took a detour of sorts in 2012 after the ABA School of Transnational Law, Shenzhen (STL) — refused to extend its accreditation jurisdiction when was it founded and what is its purpose? outside of the US and Puerto Rico, and founding STL was established in 2008 by special authorisation dean Lehman left to establish NYU’s Shanghai of China’s State Council. The founding dean was campus. That’s when I joined STL. We retained STL’s Jeffrey Lehman, a former president of Cornell original purpose of providing an elite graduate-level University and dean of the University of Michigan common law JD education in China, but we Law School. The idea was to establish an American- expanded our mission by reforming and elevating our style law school at China’s leading university that China Law Juris Master [JM] curriculum to include would be accredited by the American Bar Association the “case study” and Socratic questioning methods [ABA]. The goal was to provide China’s top students of instruction typical of American legal education, the option of earning an internationally recognised both of which represent significant innovations in Juris Doctor degree in China, while simultaneously China legal education, and emphasising the new providing an educational model that would help transnational legal and commercial principles likely advance legal education and the legal profession in to emerge from the rapidly expanding economic China. exchange between China and the West. Most recently, we have been adding elements to our curriculum that focus on the legal and “There is keen interest in STL’s commercial traditions of Central and South Asia and the Middle East, all regions of growing importance in approach to legal education both terms of China’s economic engagement. within China and worldwide, and we The evolving economic integration of Shenzhen and Hong Kong, together with Shenzhen’s role as a are beginning to see other law schools gateway for China’s Belt and Road Initiative, offers emulate aspects of our approach” what is probably the world’s most exciting and dynamic legal environment for STL’s unique approach to legal education.
40 www.inhousecommunity.com The Thing About … Philip McConnaughay
Volume 16 Issue 4, 2019 41 ASIAN-MENA COUNSEL Q&A
In a nutshell, STL’s dual Common Law JD-China Law must be prepared to acknowledge, respect and help JM programme, which is unique in China and the find solutions when different traditions and world, has been wildly successful. Demand for STL expectations — even, at times, different notions of graduates among China’s and the world’s leading law truth and justice — are present in a single firms, multinational companies, government offices transaction or dispute. I view this as both an and NGOs is so high we are not able to meet it. We intellectual and ethical responsibility of the have negotiated alternative routes to American bar profession. Yes, I believe STL prepares our students exam access for STL students that do not depend on for this challenge. ABA accreditation. There is keen interest in STL’s approach to legal education both within China and In an era where we are encouraged to worldwide, and we are beginning to see other law countenance multiple careers, your own has schools emulate aspects of our approach. Perhaps included not only being one of the only foreigners most gratifying, STL graduates are becoming leaders to hold a leadership position at Peking University, of China’s growing legal profession, fully equipped but also a senior partner at Morrison & Foerster to handle the sophisticated transactions and (MoFo). How does a career in academia compare disputes increasingly characteristic of China’s to a career in corporate law? advanced internationalised economy, traditionally Well, I have been very fortunate in that both almost exclusively the province of blue-chip Anglo- aspects of my career, practising law and academics, American firms. have been incredibly interesting and rewarding. The thing I enjoyed most about practicing law is the constantly changing problems of significance that “The IBM/Fujitsu arbitration was so lawyers help address. My academic career really has large and complex that we had two dimensions, being professor and teacher, on the one hand, and being a law school leader, on the essentially had to devise our own other. Being a professor provides a unique rules of procedure, applicable law opportunity to think and write about issues independently of the interests of a client, and to and rules of engagement” contribute to the education of future lawyers. I have enjoyed both of these things very much. How has the legal profession changed since you Leading a law school calls upon so many of the skills first graduated? Does STL provide all the training of practice — strategy, negotiation, sometimes required for the ‘modern’ lawyer, or are there adversarial negotiation — in addition to a knowledge areas for improvement? of legal education that it’s almost as if my two The legal profession has undergone multiple changes professions have converged. since I first began practising law, both in the nature of services required and in methods of delivery. The Your work at MoFo included helping to lead the demographics of the profession (thankfully), the rise MoFo team representing Fujitsu in its international of technology and electronic discovery, the use of arbitration with IBM. What was the significance of alternative billing methods, the ability to work and Fujitsu’s eventual victory? partner remotely, and many other aspects of the I’ll mention two aspects of the IBM/Fujitsu profession all have changed quite dramatically. arbitration that I believe have had lasting Although much of the law remains local and significance and that, I should add, were achieved geographically defined and applied, the change I because of the efforts and ingenuity of both parties, view as most fundamental has been the both teams of lawyers, and the arbitrators. The first internationalisation of legal services. The best was the creation of a unique model for the lawyers today are those prepared to contend fairly management and resolution of a complex worldwide and knowledgeably with the interaction between dispute involving multinational parties, the interests different legal systems and traditions, and with the of multiple nations, and no clear applicable law. The often fundamentally different expectations of IBM/Fujitsu arbitration was so large and complex parties from different traditions. Today’s lawyers that we essentially had to devise our own rules of
42 www.inhousecommunity.com The Thing About … Philip McConnaughay
“We need to value very highly in a world of cross- border exchange and disputes those mechanisms and institutions, such as international arbitration and the 1958 New York Convention, that preserve the flexibility to respect and accommodate different legal and commercial traditions and expectations”
Volume 16 Issue 4, 2019 43 ASIAN-MENA COUNSEL Q&A
procedure, applicable law and rules of engagement. ingredient of technological innovation in which It was a unique combination of arbitration, Shenzhen and the Greater Bay Area still lag in mediation and constant negotiation, in which the comparison to California’s Silicon Valley and other parties, arbitrators and lawyers happily shared a US centres of innovation is higher education. The very forward-looking orientation. The process was Greater Bay Area needs more institutions of higher far more about finding solutions than it was about education, and higher education throughout China, imposing blame. The second was the principle of in my view, needs more autonomy if it ever hopes to interoperability and the singular importance of match the creative output of the US. clearly defined interfaces to interoperability. This was a major advance for worldwide consumers and Who was your mentor? producers of high technology. In law practice and client service generally, two senior partners of Morrison & Foerster, the late Bob Your academic writings are diverse and include a Raven and Jim Paras. I’ve never known finer, more thoughtful piece on China’s impact on the Western ethical lawyers with a better understanding of the legal tradition. Can you share some of your profession. thoughts on this topic? I’ll share one. I do not believe in the eventual What advice would you give to a young lawyer convergence of all law and legal practice around the entering the profession? Western legal tradition. We need to value very Be honest. Be ethical. Leave no stone unturned. highly in a world of cross-border exchange and And, underestimate neither the complexity of the disputes those mechanisms and institutions, such as law nor the value of compromise. international arbitration and the 1958 New York Convention, that preserve the flexibility to respect What is your hinterland? and accommodate different legal and commercial I’ll interpret this literally as asking for my favourite traditions and expectations, as well as the new remote area. This is probably the Indian Ocean traditions and expectations likely to emerge from Coast of the Margaret River region of Western their interaction. My views about this are informed Australia. I have many close “second” favourites all both by my years of practice representing non-US over the world, but the Margaret River region parties and interests, and by my experience helping probably tops my list. to establish one of China’s most innovative and successful programmes of legal education. Philip McConnaughay is dean and professor of law of STL and a As one of the seers relating to the exponential vice-chancellor of Peking University’s Shenzhen Graduate School. growth of Shenzhen and the emergence of the Before joining STL, he was founding dean of Penn State University’s Greater Bay Area, how do you see its development law school and School of International Affairs. Prior to joining Penn comparing to Silicon Valley and the original State, he was a professor of law at the University of Illinois, Urbana- Greater Bay Area in California? Champaign, and before that a partner of the international law firm, I’ve been fortunate to be a first-hand witness to the Morrison & Foerster, resident for almost 10 years in Tokyo and Hong emergence of both areas. China has provided a Kong. McConnaughay is the author of numerous scholarly articles modern, interconnected infrastructure for the and edited books concerning international commercial dispute Greater Bay Area — transportation, communications resolution, the regulation of international commerce, and the role and energy — that, in my view, is likely to ensure of arbitration in economic development. He serves on the editorial the eventual expansion of the innovation and board of the Indonesian Journal of International & Comparative Law. development characteristic of Shenzhen throughout As a practising lawyer, McConnaughay was involved in some of the the region. China also is doing an admirable job of major antitrust and intellectual property disputes of the day. He has experimenting with the best approaches to laws and served as an adviser to the government of Indonesia with respect to judicial and regulatory institutions most conducive the drafting of a new national arbitration law, and has been active to sustaining the advanced, innovative, throughout his career in a variety of public interest and internationalised economy of the region. The one pro bono matters.
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MALAYSIA Advocatus Law LLP ABNR (Ali Budiardjo, Nugroho, Reksodiputro) Tel: (65) 6603 9200 2014 2015 2018 Email: [email protected] Tel: (62) 21 250 5125/5136 Azmi & Associates 2017 Contact: Christopher Anand Daniel - Managing Partner Email: [email protected] Tel: (603) 2118 5000 Email: [email protected] [email protected] Email: [email protected] Website: www.advocatus.sg Contacts: Emir Nurmansyah ([email protected]) Contact: Dato’ Azmi Mohd Ali - Senior Partner CMA E IA LDR RES Nafis Adwani ([email protected]) Website: www.azmilaw.com Agus Ahadi Deradjat ([email protected]) BF CM CMA ENR PF Website: www.abnrlaw.com Ella Cheong LLC Tel: (65) 6692 5500 MR BF CM CMA ENR PF Ella Cheong IP Services Sdn. Bhd. Email: [email protected] Tel: (60) 3 2201 1976 Contact: Mr. Soh Kar Liang Assegaf Hamzah & Partners Email: [email protected] Website: www.ellacheong.asia Contact: Mr. Soh Kar Liang 2016 2017 2018 CMA IP LDR REG TMT Jakarta Office: Website: www.ellacheong.asia Tel: (62) 21 25557800 CMA IP LDR REG TMT Eversheds Harry Elias LLP Email: [email protected] Tel: (65) 6535 0550 Contacts: Fikri Assegaf ([email protected]) Email: [email protected] Bono Adji ([email protected]) Raja, Darryl & Loh 2016 2017 2018 Contact: Philip Fong - Managing Partner Eri Hertiawan ([email protected]) Tel: (603) 2694 9999 Email: [email protected] Eko Basyuni ([email protected]) Email: [email protected] Website: www.eversheds-harryelias.com Contact: Dato’ M. Rajasekaran Surabaya Office: CMA IA LDR RE RES Tel: (62) 31 5116 4550 Website: http://www.rajadarrylloh.com MR CMA IP LDR RE TX Contact: Yogi Marsono ([email protected]) Joyce A. Tan & Partners Website: www.ahp.co.id Tel: (65) 6333 6383 MR BF CM CMA LDR PF Trowers & Hamlins LLP 2016 2017 2018 Email: [email protected] Tel: (601) 2615 0186 Contact: Joyce T. Tan - Managing Director Email: [email protected] Website: www.joylaw.com 2016 2017 2018 Lubis Ganie Surowidjojo Contact: Nick White - Partner CMA E IP LDR TMT Tel: (62) 21 831 5005, 831 5025 Website: www.trowers.com Email: [email protected] MR BF CMA ENR IF PF Contacts: Timbul Thomas Lubis, Dr. M. Idwan (‘Kiki’) Ganie, Providence Law Asia LLC 2018 Arief Tarunakarya Surowidjojo, Abdul Haris M Rum, Harjon Tel: (65) 6438 1969 Sinaga, Rofik Sungkar, Dini Retnoningsih, Mochamad Fajar PHILIPPINES Email: [email protected] Syamsualdi and Ahmad Jamal Assegaf. Contact: Abraham Vergis - Managing Director Website: www.providencelawasia.com/ Website: http://www.lgslaw.co.id ACCRALAW (Angara Abello Concepcion CMA IA LDR RE RES MR CMA COM INS LDR PF Regala and Cruz Law Offices) 2016 2017 2018 Tel: (632) 830 8000 SOUTH KOREA Makarim & Taira S. 2016 2017 2018 Email: [email protected] Tel: (62) 21 5080 8300, 252 1272 Contacts: Emerico O. De Guzman, Regina Padilla Geraldez Bae, Kim & Lee LLC 2016 2017 2018 Email: [email protected] Neptali B. Salvanera Tel: (82 2) 3404 0000 Contact: Lia Alizia Website: www.accralaw.com Email: [email protected] Website: www.makarim.com MR CMA E IP LDR TX Contact: Kyong Sun Jung BF CMA E LDR PF Website: www.bkl.co.kr Morales Justiniano Peña & Lumagui MR BF CMA IA LDR RE Tel: (632) 834 2551, (632) 832 7198, Mochtar Karuwin Komar 2016 2017 2018 (632) 833 8534 Cho & Partners 2012 Tel: (62) 21 5711130 Email: [email protected] Email: [email protected], [email protected] Tel: (82-2) 6207-6800 Contact: Mr. Rafael Morales - Managing Partner Email: [email protected] Contact: Emir Kusumaatmadja Website: www.primuslex.com Website: www.mkklaw.net Contacts: Tae-Yeon Cho, Ik Hyun Seo BF CM CMA IP LDR Website: www.cholaw.com AV CMA ENR LDR PF IP LDR SyCip Salazar Hernandez & Gatmaitan Nasoetion & Atyanto 2016 2017 2018 HMP Law Tel: (62) 21 5140 0311 Tel: (632) 9823500, 9823600, 9823700 Tel: (82-2) 772-2700 Email: [email protected] Email: [email protected] Email: [email protected] Contact: Genio Atyanto Contact: Hector M. de Leon, Jr. - Managing Partner Contact: Mr Kyun Je Park Website: www.nacounsels.com Website: www.syciplaw.com Website: www.hmplaw.com BF CM CMA FT TMT MR BF CMA E ENR PF CMA FT LS PF REG
Volume 16 Issue 4, 2019 47 ASIAN-MENA COUNSEL DIRECT
Jipyong 2012 2016 2018 THAILAND VILAF 2017 2018 Tel: (82-2) 6200 1600 Tel: (84) 28 3827 7300, (84) 24 39348530 Email: [email protected] Email: [email protected], [email protected], Chandler MHM Limited 2016 2017 2018 Contact: Haeng-Gyu Lee - Partner [email protected] Tel: (66) 2266 6485 Website: www.jipyong.com Contacts: Vo Ha Duyen, Ngo Thanh tung, Email: [email protected] MR BF COM CMA RE LDR Dang Duong Anh [email protected] Website: www.vilaf.com.vn Contacts: Jessada Sawatdipong, Satoshi Kawai MR Website: www.chandlermhm.com BF CM CMA ENR LDR Kim & Chang 2016 2017 2018 MR BF CMA ENR PF RE Tel: (82-2) 3703-1114 Email: [email protected] Website: www.kimchang.com Kudun and Partners Limited Tel: (66) 2 838 1750 — Law Firms — MR COM BF CMA IP LDR Email: [email protected] MIDDLE EAST [email protected] Lee & Ko 2018 [email protected] Tel: (82-2) 772 4000 [email protected] BAHRAIN Email: [email protected] Contacts: Kudun Sukhumananda - Capital Markets, Contact: Jae Hoon Kim Corporate M&A, Banking & Finance Website: www.leeko.com Chinawat Assavapokee - Tax, Corporate Restructuring, Insolvency Trowers & Hamlins MR CMA BF LDR TX IP Pariyapol Kamolsilp - Litigation / Dispute Tel: (973) 1 751 5600 Resolution Email: [email protected] Website: www.kap.co.th Contact: Louise Edwards - Office Manager Lee International IP & Law Group Website: www.trowers.com 2014 2015 2017 CMA CM LDR RES TX BF CMA IF LDR RE Tel: (82 2) 2262 6000 Email: [email protected]. Siam City Law Offices Limited Website: www.leeinternational.com (SCL Law Group) 2016 2017 OMAN CMA IA IP LDR RE Tel: (66) 2 676 6667-8 Email: [email protected] Contact: Chavalit Uttasart SEUM Law Website: www.siamcitylaw.com Trowers & Hamlins Tel: (82-2) 562 3115 BF CMA E RE TX Tel: (968) 2 468 2900 Contacts: Steve Kim - Partner ([email protected]) Email: [email protected] Steve Ahn - Partner ([email protected]) Contact: Louise Edwards - Office Manager Woomi Cha ([email protected]) Weerawong, Chinnavat & Partners Ltd. Website: www.trowers.com Email: [email protected] 2017 2018 BF CMA LDR PF RE Website: www.seumlaw.com Tel: (66) 2 264 8000 Email: [email protected] BF CMA INV REG TMT [email protected] Contacts: Chinnavat Chinsangaram - Senior Partner UAE Shin & Kim 2016 2017 2018 Veeranuch Thammavaranucupt - Senior Partner Tel: (82 2) 316 4114 Website: www.weerawongcp.com Email: [email protected] MR BF CM CMA LDR RES Afridi & Angell 2016 Contact Sinseob Kang - Managing Partner Tel: (971) 4 330 3900 Website: www.shinkim.com VIETNAM Email: [email protected] Contact: Bashir Ahmed - Managing Partner MR COM BF CMA LDR RE Website: www.afridi-angell.com 2015 2018 Indochine Counsel BF CMA LDR RE REG Ho Chi Minh Office: Yoon & Yang LLC 2016 2017 2018 Tel: (82 2) 6003 7000 Tel: (84) 28 3823 9640 Email: [email protected] Email: [email protected] Contacts: Seung Soon Lim, Seung Soon Choi, Jinsu Jeong Contact: Mr Dang The Duc Horizons & Co Website: www.yoonyang.com Hanoi Office: Tel: (971) 4 354 4444 Tel: (84) 24 3795 5261 Email: [email protected] MR COM E IP LDR TX Email: [email protected] Contact: Adv. Ali Al Zarooni Website: www.indochinecounsel.com Website: www.horizlaw.ae CM CMA PF Yulchon LLC 2016 2017 2018 CMA E LDR PF RE Tel: (82-2) 528 5200 Email: [email protected] Russin & Vecchi 2016 2017 2018 Website: www.yulchon.com Ho Chi Minh Office: MR COM CMA IP LDR TX Tel: (84) 28 3824-3026 Trowers & Hamlins LLP 2015 2016 Email: [email protected] Dubai office: TAIWAN Contacts: Sesto E Vecchi - Managing Partner Tel: (971) 4 351 9201 Nguyen Huu Minh Nhut - Partner Email: [email protected] Nguyen Huu Hoai - Partner Contact: Jehan Selim - Office Manager Deep & Far Attorneys-at-Law Hanoi Office: Abu Dhabi office: Tel: (8862) 25856688 Tel: (84) 24 3825-1700 Tel: (971) 2 410 7600 Email: [email protected] Email: [email protected] Email: [email protected] Contact: Mr. C. F. Tsai Contact: Mai Minh Hang - Partner Contact: Jehan Selim - Office Manager Website: www.deepnfar.com.tw Website: www.russinvecchi.com.vn Website: www.trowers.com MR COM CM E IP LDR CMA E IP INS TMT BF CMA LDR PF RES
48 www.inhousecommunity.com Hughes-Castell — Law Firms — Alternative Tel: Hong Kong (852) 2520 1168 — Legal Service — Singapore (65) 6220 2722 NORTH AMERICA Beijing (86) 10 6581 1781 Providers Shanghai (86) 21 2206 1200 CANADA Email: [email protected] Eversheds Sutherland Website: www.hughes-castell.com Tel: (852) 2186 4953 Fasken Martineau Email: [email protected] JLegal Tel: (416) 366-8381 Contact: Mardi Wilson Tel: (65) 6818 9701 Email: [email protected] Website: www.eversheds-sutherland.com Email: [email protected] Contact: Mark Stinson, Primary Contact Website: www.jlegal.com Website: www.fasken.com LOD - Lawyers On Demand BF CMA ENR LDR TMT Tel: (65) 6326 0200 Legal Labs Recruitment Email: [email protected] Tel: Singapore (65) 6236 0166 Contact: Oliver Mould Hong Kong (852) 2526 2981 Meyer Unkovic Scott Website: lodlaw.com Email: [email protected] Tel: (412) 456 2833 Website: www.legallabs.com Email: [email protected] KorumLegal Contact: Dennis Unkovic Tel: 3911 1201 Lewis Sanders Website: www.muslaw.com Email: [email protected] Tel: (852) 2537 7410 CMA IP IA LDR RE Contact: Titus Rahiri Email: [email protected] Website: www.korumlegal.com Website: www.lewissanders.com
Pure — Law Firms — Risk, Investigation Tel: Hong Kong (852) 2499 1611 AFRICA — and Legal — Email: Hong Kong [email protected] Tel: Singapore (65) 6407 1200 Support Services Email: Singapore [email protected] JOHANNESBURG Website: www.puresearch.com IMF Bentham Tel: (65) 6622 5397, (65) 6622 5396 Taylor Root Fasken Martineau Contact: Tom Glasgow - Investment Manager (Asia) Tel: Singapore (65) 6420 0500 Tel: (27) 11 586 6000 Email: [email protected] Hong Kong (852) 2973 6333 Email: [email protected] Website: www.imf.sg Email: [email protected] Contact: Blaize Vance - Regional Managing Partner Website: www.taylorroot.com Website: www.fasken.com Kroll CMA E ENR LDR PF Tel: (852) 2884 7788 Contact: Tad Kageyama: [email protected] — Other Services — Website: www.kroll.com — Arbitration — MEDITATION LegalComet Pte Ltd (LEGALCOMET) Services Tel: (65) 8118 1175 Kadampa Meditation Centre Hong Kong Contact: Michael Lew, Founder & CEO KMC HK is a registered non-profit organisation. We offer Email: [email protected] systematic meditation and study programmes through Beijing Arbitration Commission / Website: www.legalcomet.com drop-in classes, day courses, lunchtime meditations, Beijing International Arbitration Center weekend retreats and other classes. (Concurrently use) Tel: (852) 2507 2237 Mintz Group Tel: (86) 10 85659558 Email: [email protected] Tel: (852) 3427 3717 Email: [email protected] Website: www.meditation.hk Contacts: Jingyi Li Blank Contact: Mr. Terence Xu（許捷） Email: [email protected] Website: www.bjac.org.cn Website: www.mintzgroup.com SPORT & LEISURE
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