MCI (P) 041/02/2020 issn 0219 – 6875 KDN PPS 1867/10/2015(025605) IP RANKINGS ASIA’S BEST FIRMS FOR INTELLECTUAL PROPERTY

INDONESIA’S THE REGION’S TOP DECODING CHINA’S INFRASTRUCTURE SECTOR OFFSHORE LAWYERS, AS NEW FOREIGN AT A TIME OF COVID CHOSEN BY CLIENTS INVESTMENT LAW ALB Planning For Disruption Webinar Series 2020 Covers case studies, practical queries from recent calls and requests for advice, and conclusions gleaned from discussions with speaker’s colleagues from around the world.

Containing or delaying the rapid global spread of COVID-19 is a major priority for governments and health services, but it also presents extremely significant challenges for international business especially with regards to business continuity. Join our 4-part webinar series which examines the legal issues, stress points and disputes most likely to arise from supply chain disruption, travel and other restrictions: • Planning for Disruption: Impact for International Business and Contracts: 21 May 2020 • Planning for Disruption: Force Majeure and Contract Risk Management During Crisis: 28 May 2020 • Planning for Disruption: Impact on Key Sectors – Supply Chain, Logistics and Retail: 4 June 2020 • Planning for Disruption: Employer Obligations and Data Privacy Implications: 11 June 2020

THE PRESENTER Malcolm Dowden, Legal Director, Womble Bond Dickinson Malcolm Dowden is a UK-based commercial and regulatory lawyer with more than 25 years' experience of advising international businesses and governments. He is Legal Director at Global100 law firm Womble Bond Dickinson, and is Honorary Professor at Indore Institute of Law, Madhya Pradesh India and a sessional lecturer at the University of Winchester in the UK. PRICING* Part 1 - Impact for International Business and Contracts (21 May 2020): USD$100 Part 2 - Force Majeure and Contract Risk Management During Crisis (28 May 2020): USD$200 Part 3 - Impact on Supply Chain, Logistics and Retail (4 June 2020): USD$300 Part 4 - Employer Obligations and Data Privacy Implications (11 June 2020): USD$200 Part 1, 2, 3 and 4: USD$700 Part 1, 2 and 4: USD$450 *Pricing is excluding 7% GST.

FOR MORE INFORMATION ON THE SEATS AVAILABILITY, PLEASE CONTACT Romulus Tham [email protected] | (65) 6870 3035

PROUDLY PRESENTED B Y CONTENTS

12 Staying the course

A view of almost empty main road amid the spread of coronavirus disease (COVID-19) in Jakarta, Indonesia, March 31, 2020. REUTERS/Willy Kurniawan

COVER STORY FEATURES BRIEFS 18 12 (PDPA) officially who have not 3 ALB IP Rankings Staying the course became law. Echoing only met but also The Briefing 2020 Indonesia’s President General Data exceeded client As Asia becomes a Joko Widodo Protection Regulation expectations. 4 major innovation has prioritised (GDPR) somewhat, Forum hub, and the infrastructure the PDPA regulates 36 filing of patents as one of his key personal data Three become one 5 and trademarks development goals, collection, storage On January 1, 2020, Deals continues at pace, but given the severity and dissemination. the new Foreign law firms specialising of which COVID-19 But while further Investment Law 7 in intellectual has hit Indonesia, regulatory (FIL) of the People’s Explainer property are this focus has been developments are Republic of China finding themselves put on the back required to ensure and its Implementing 10 increasingly in burner somewhat. the law can be Regulations came Appointments demand. In the 2020 While developments fully implemented, into force, formally edition of its annual may have slowed, businesses should replacing the so- 12 list, ALB once again lawyers are conscious be seeking out legal called Three Foreign Q&A picks the top firms these projects help to ensure they Investment Laws for IP work across the are a long-term are compliant now which has a history 13 region. commitment, and — and not dragging of nearly 40 years in League Tables By Maricel Estavillo sooner rather than their heels — say China, marking the and ALB later, the industry lawyers. arrival of a new era of will bounce back. foreign investment. Plus: 28 Compared with - Ajay Sahni & Plus: ALB Offshore Client the old system, Associates profile - Drinking Water Choice List 2020 the new law has Infrastructure in As in other years, brought changes and Indonesia Asian Legal Business breakthroughs to continues its annual many fields of foreign 26 tradition of picking investment, but it Privacy first Asia’s standout also leaves gaps in In May 2019, lawyers from offshore the legislation when Thailand’s Personal law firms. These are it comes to some Data Protection Act legal professionals difficult issues.

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 1 www.surveymonkey.com/r/ALBCovid

HEAD OF LEGAL MEDIA BUSINESS, ASIA & EMERGING MARKETS Amantha Chia [email protected] As an industry, we need to overcome COVID MANAGING EDITOR together. The coronavirus outbreak has upended busi- Ranajit Dam nesses across the region since January and February [email protected] this year, and the legal sector is no different. As the JOURNALIST pace of work slows to crawl for the vast majority of legal Elizabeth Beattie service providers, law firms have been forced into making [email protected]

difficult decisions, from cutting or deferring salaries and EDITORIAL ASSISTANT bonuses, to the outright shedding of jobs. The situation Aparna Sai would be traumatic enough if we had a clear idea of [email protected]

when the effects of the outbreak would recede; as things COPY & WEB EDITOR stand now, it is almost impossible to make a prediction Rowena Muniz of how long this situation will last. What we can assume [email protected] safely, though, is the impact will be felt SENIOR DESIGNER for many months, if not years, to come. John Agra There will be certain positives to draw [email protected] from the experience, no doubt – the TRAFFIC/CIRCULATION MANAGER post-pandemic lawyers will be adept Rozidah Jambari at working both flexibly and remotely, [email protected] as well as the use of technology – but SALES MANAGERS in the short term, the industry is bracing Amy Sim for some pain. Sales Director, SE Asia, India and Japan (65) 6870 3348 In the opinion of this writer, it is [email protected] more important than ever for the various Felix Cheng stakeholders to come together in order Sales Manager (852) 2843 6943 to blunt the impact of COVID on the [email protected] legal industry. Certain governments are Krupa Dalal already doing their part – note the recent Sales Manager announcement from the Singapore (91) 22 6189 7087 Academy of Law that it would provide a [email protected] Jeremy Lim support package of S$1.9 million ($1.35 Sales Executive million) to individuals and law firms. (65) 6870 3789 Lawyers can be quite competitive by [email protected] nature, but now is the time to shelve that John Guo Sales Executive RANAJIT DAM and openly share their challenges, apart from offering (86) 135 2127 6707 Managing Editor, learnings and solutions. To help enable this, ALB’s June [email protected] Asian Legal Business cover story will focus on how we can emerge from this Romulus Tham Thomson Reuters coronavirus pandemic as a stronger, more resilient Delegate Sales Executive (65) 6870 3035 industry. We urge you to join us in this. To participate, [email protected] visit the link on top or contact either myself or Elizabeth Steven Zhao Beattie at the email addresses listed on this page. Account Manager (86) 10 6627 1360 [email protected] Yvonne Cheung Sales Director, Key Accounts and South China (852) 2847 2003 [email protected]

SENIOR EVENTS MANAGER Julian Chiew Asian Legal Business is available by subscription. Please visit www.legalbusinessonline.com for details. Asian Legal Business has an audited average circulation of 11,402 as of 30 September 2016.Copyright is reserved throughout. No part of this publication can be [email protected] reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as Asian Legal Business can accept no responsibility for loss. AWARDS MANAGER MCI (P) 041/02/2020 Caryl Aquino issn 0219 – 6875 KDN PPS 1867/10/2015(025605) [email protected]

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2 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM THE BRIEFING: YOUR MONTHLY NEED-TO-KNOW

SG LAW ACADEMY ROLLS OUT COVID SUPPORT PACKAGE

Number of cases filed over COVID-19 in the The Singapore Academy of Law 795U.S. as of May 4, according to a lawsuit (SAL)has announced a S$1.9 million tracker developed by Hunton Andrews ($1.35 million) support package Kurth and a data services provider. to help both sole practitioners as Number of countries globally that are well as law firms cope with the accessing available remote technology to impact the coronavirus outbreak. 40maintain their justice systems during the COVID-19 pandemic, according to the IN THE NEWS SAL, which has more than 9,000 members, conducted a survey of 400 UK initiative Remote Courts Worldwide. practitioners and in-house counsel in April. The survey found that 83 percent of practitioners reported a The Commonwealth has tapped decrease in new cases and revenue, SIGNIFICANT DIFFERENCES Slaughter and May and Milbank while 75 percent of in-house counsel to help member countries amid saw an increase in workload in areas IN GC PAY ACROSS the coronavirus pandemic. such as crisis management and The COVID-19 Business Law employment issues. COUNTRIES, GENDERS Response Initiative (COBULRI) will offer pro bono guidance U.S.-based leaders of law departments at companies and knowledge to governments QUOTE UNQUOTE of developing countries, earn significantly more than non-U.S. leaders, while men’s particularly on legislative change “It is critical that authorities as nations face the crisis. pay still eclipses women’s pay do not use their powers to at nearly all levels in-house, encroach on fundamental according to a study conducted by human rights, and it is vital legal consultancy Major, Lindsey that legal systems continue to & Africa. The study found that at HFW has launched a global protect citizens from any abuse the CLO and GC level, U.S.-based resource management system of power which may otherwise in-house lawyers earn $503,078 that allows it to efficiently be unseen during the COVID-19 on average, about 30 percent delegate client matters to lawyers crisis in which the international more than the $348,152 for across the firm based on their community is submerged.” their international counterparts. areas of expertise. Matters can be And globally, male legal allocated based on workloads and The International Bar Association reacts to department heads make about areas of expertise, enabling more the arrest of renowned Hong Kong lawyers $501,000 a year, compared to efficient distribution of work. Martin Lee QC and Margaret Ng on April 18. $444,000 for women.

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FORUM FORWARD PLANNING Remote and flexible working arrangements have become a necessity for many businesses as COVID-19 continues to cast a shadow. Now, as such measures become more normal, firms are refining the formula.

COVID-19 has seen the widespread use of flexible and remote working arrangements. What challenges have you as a firm faced in attempting to achieve a seamless transition, and what are your tips for ensuring lawyers are engaged and available when you need them?

Jeremy Shebson, managing partner, HFW family at HFW, and I’ve never seen that more evident We have more than 1,000 colleagues across the than over the past six weeks. Americas, Europe, the Middle East and Asia-Pacific, and we’ve had periods during the outbreak where a Cynthia Chung, partner, Deacons significant number of them are working from home. I recall that I spent pretty much the whole of the That’s been completely unprecedented for us, as I’m last day of the Chinese New Year holiday discussing sure it has been for most law firms. The technology with management committee whether to follow the SHEBSON and systems we had in place allowed us to function government’s recommendation to allow staff to work seamlessly and continue to help our colleagues and from home. As the largest Hong Kong law firm with clients during this challenging time, but it was still 16 different practices, it was not an easy decision. somewhat of a leap in the unknown. From the very We had to balance the business needs of our clients outset, we have been particularly focused on the well- with our staff’s health and safety. Whilst same prac- being – both mental and physical – of our colleagues, tices which deal mostly with offshore clients were clients and everyone in the HFW community. These more palatable to work remotely, other practices are stressful and anxious times for people, and being which require settlement of clients’ money or physical away from colleagues for a prolonged period can feel completion of transactions and exchange of docu- CHUNG isolating – particularly if you’re not used to working ments were not. To maintain the essential operation from home. We’ve therefore made a real effort to of the firm, some of our staff had to go into the office. keep in regular communication and to encourage For those who could work from home, we had to everyone to support each other. We’re doing a huge make sure that our infrastructure could adequately amount of videoconferencing, both internally and support the increased volume of remote access. with clients – just seeing someone’s face can make Confidentiality was also our primary concern. An a real difference at times like these. We were very urgent assessment of the suitability of our software pleased with how quickly the business adapted to the support and cybersecurity was immediately carried new working environment. That’s a real testament out. We also needed to ensure our colleagues have BICKLEY to the hard work and dedication of everyone at the enough support at home to conduct work and set firm, including our lawyers, business services and expectation for work required so that clients’ inter- IT, who have been working around the clock to keep ests are not compromised. For staff who provided everything running smoothly. That’s meant we’ve essential service and had to attend the office, we been able to focus on working with clients across had to ensure that they were provided with protec- our industry sectors and international network to tive gears such as masks and sanitizing products. help them minimise the impact of COVID-19 on their We also allowed them to go to work at flexible hours. business – and to prepare for what’s next. But most of Some groups adopted rosters and shifts to minimise all, we’ve been incredibly proud of how the firm has the number of people being in close working space pulled together. We’ve always had a strong sense of at the same time; others facilitated colleagues of

4 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM BRIEFS the same team to sit on different floors to ensure and share such information on our intranet. This business continuity in the unfortunate event of a helps us understand the real situations faced by our confirmed case. wider network so that we can adjust accordingly. As for our clients, timely communications on our Christopher WH Bickley, partner and operation arrangement have been sent out to give head of Hong Kong, Conyers Dill & Pearman our clients a sense of reassurance. They know that our Our global leadership team has been monitoring team is there for them, which in return allows us to the development of COVID-19 closely and taking provide support and solutions to their businesses and actions to ensure, as a firm, the safety of our people temporary problems that arise during this pandemic. remains our priority as we adjust to a different oper- I must stress that these would not be possible without ating model during this challenging time. We appre- the IT facilities that allow our lawyers to engage as ciate accurate information is crucial to our health normal. Our firm has collective, solid experience in and safety in this fast-moving situation. To ensure dealing with natural disasters and disruptions. We everyone from Conyers can access the latest situ- have acquired the flexible mindset – which allows us ation updates, new policies and precautions from to deal with this complicated situation in a calm and government authorities and public health organi- composed manner, and to remain engaged during sations, a COVID-19 Hub has been set up to store COVID-19.

DEALS

$5.7 BLN $2.1 BLN $1.89 BLN $1.5 BLN Facebook’s purchase of Indorama Ventures’ Prudential’s sale of NTPC’s acquisition of a stake in Jio Platforms acquisition of Korea subsidiary to a stake in THDCIL and Deal Type: M&A Huntsman’s chemical KB Financial NEEPCO Firms: AZB & Partners; unit Deal Type: M&A Deal Type: M&A Davis Polk & Wardwell; Deal Type: M&A Firms: Debevoise & Firms: Cyril Amarchand Fenwick & West; Gibson Firms: AZB & Partners; Plimpton; Kim & Chang; Mangaldas; Trilegal Dunn & Crutcher; Chandhiok & Mahajan; Yulchon Jurisdiction: India Hogan Lovells; Shardul Corrs Chambers Jurisdictions: Korea, Amarchand Mangaldas; Westgarth; Lowenstein U.S. White & Case Sandler Jurisdictions: India, U.S. Jurisdictions: Australia, India, Thailand, U.S.

$750 MLN $630 MLN $457 MLN $397 MLN Silver Lake’s investment Kookmin Bank’s Berjaya Corporation’s United Hampshire in Jio Platforms purchase of stake sale of Four Seasons U.S. REIT’s IPO Deal Type: M&A in PRASAC Hotel Kyoto Deal Type: IPO Firms: AZB & Partners; Deal Type: M&A Deal Type: M&A Firms: Allen & Gledhill; Shardul Amarchand Firms: Bae, Kim & Lee; Firm: Clifford Chance Clifford Chance Mangaldas Clifford Chance; DFDL Jurisdictions: Japan; Jurisdictions: Jurisdictions: India, U.S. Cambodia; R&T Sok & Malaysia Singapore, U.S. Heng Law Office Jurisdictions: Cambodia, Korea

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 5 BRIEFS INDIA’S NEW FDI RULES THOUGHT TO BE AIMED AT CHINA

India has tightened up its stance on foreign direct investment (FDI), in a policy that is broadly viewed as targeting China. According to the latest changes, investments from an entity in a country that shares a land border with India will now have to undergo a government approval process. The development, which India’s trade ministry has said was to curb “opportunistic takeovers/acquisitions,” has been seen as a pointed move directed at Chinese companies. While there have been existing investment restrictions in place for Bangladesh and Pakistan, these Students wear masks of China’s President Xi Jinping as other waves national flags of India and China, ahead of the informal summit rules widen the number of jurisdic- with India’s Prime Minister Narendra Modi, at a school in Chennai, India, October 10, 2019. REUTERS/P. Ravikumar tions included. Bhutan, Afghanistan, Myanmar and Nepal will also be subject treating investment emanating from Australia will require all foreign invest- to the new restrictions. Hong Kong in the same way as invest- ment proposals to be assessed by a In early April, India’s Economic ment from China,” he adds. review board during the coronavirus Times reported that China’s central bank The existing scale of investment outbreak, while other countries may held a 1.75 percent stake in India’s HDFC has also triggered a broader discus- follow in the future. Bank — the country’s biggest housing sion. A report by research group Gateway Another question mark hovers over mortgage lender. According to the publi- House, cited by Reuters, found Chinese those Chinese investors with existing cation, companies need only to disclose foreign direct investment into India stood investments in the market. “One of the shareholding changes at the end of each at $6.2 billion. Meanwhile, Chinese suggestions we’ve made to the govern- quarter in cases when an investor’s stake investors have also played a significant ment is to address the conundrum of crosses one percent. This leaves ambi- role in a number of Indian companies’ existing investors where any future guity about when exactly the shares had success stories. investment from existing investor that been bought. “A lot of Chinese investors have does not increase their percentage of The changes have prompted a raft put a lot of money in Indian companies, equity, such as a rights issue. Such of additional questions, particularly as including in several ‘unicorns,’” Kakkar investments should be permitted and not COVID-19 casts a gloomy economic says, adding that Chinese investment require specific government approval as shadow, says Vaibhav Kakkar, a partner has been broadly dispersed “whether the restrictions were never meant to apply at L&L Partners. it’s Paytm in the e-commerce space, MG to such investments that do not entail an “As soon as the notification came Motors in automobiles or TikTok”. effective change in ownership or control.” there were a lot of questions on account “A lot of money has come in from “The government certainly recog- of ambiguities, the first of which was China, and of course now everyone is nises that the approval process for finan- whether Hong Kong would be treated concerned about this move from the cial investments emanating from China differently than China,” Kakkar says. government and how it will effect capital which fund the needs of Indian corpo- “In the past, when the government from China in the coming months. But rates need to be fast-tracked, and that had prohibited Chinese investors from we understand where the government is there needs to be a separate mecha- acquiring immovable property in India, coming from,” says Kakkar, adding that nism to handle those applications more they had specifically excluded Hong the government will want to continue quickly,” he adds, noting more gener- Kong and Macau from such restric- to encourage investment, but with a ally, there needs to be further clarifica- tions on account of them being Special sense of “strategic application to prevent tion going forward, and a balance struck Administrative Regions of China. While opportunistic takeovers and keeping with the latest FDI requirements. In the the new notification places a restriction investment in sensitive sectors at bay”. meantime, the questions persist. “We only on China, however, we do under- Australia and Germany have also will need to see how this eventually plays stand that the government will be rolled out similar measures around FDI. out,” he adds.

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EXPLAINER has a significant wholesale book, it must be noted that the narra- tive that retail banking is inherently risk-free may also not be true,” says Dutt. “Credit discipline must be THE FAILURE OF INDIA’S YES BANK imbedded in the DNA of the insti- tution irrespective of the character POSES UNCOMFORTABLE QUESTIONS or quality of its asset book.” WHAT KIND OF REFORMS Yes Bank, which was established circumstances were truly excep- ARE NEEDED TO ENSURE in 2004, was once considered a rising tional and had the RBI not stepped ANOTHER YES BANK star in India’s banking industry. However, in, Yes Bank in all probability DOES NOT HAPPEN? saddled with bad debts and experi- would be staring at bankruptcy – Dutt says that while regulators encing a corporate governance failure, causing significant loss to millions and enforcement agencies have the private bank needed to be bailed out of depositors and investors.” historically viewed “evergreening” by the Reserve Bank of India (RBI) earlier as antithetical to good corporate this year. A closer look at the debacle WHAT LESSONS DOES governance, this view may not reveals lessons that the sector would THE YES BANK SAGA necessarily be shared by all the do well to heed. HAVE FOR INDIA’S lenders. “Most financial scams BANKING INDUSTRY for banks or financial institutions WHAT LED TO THE GOING FORWARD? revolve around the real quality of EXTRAORDINARY Dutt believes that good corpo- the assets versus what is disclosed. RBI INTERVENTION IN rate governance, including credit Section 447 of the Companies Act YES BANK? discipline, is the most important also brings ‘evergreening’ within According to Krishnava Dutt, factor for sustainable growth in the ambit of ‘fraud’, as is seen in managing partner of Argus the banking and financial services the case of IL&FS,” he notes. “The Partners, governance issues had space. “Whilst the RBI regulations dichotomy between ‘bad business been plaguing Yes Bank for some do create mandatory frameworks decision’ and ‘fraud’ has largely time, and these ranged from within which the bank is required seen the judiciary tending towards disputes between the two promoter to conduct its business, it is the the latter. Thus, an issue that begs families to misstatement on the inherent conflict of interest in the a question – does restructuring an quality of assets. “Aggressive business of banking which needs account necessarily need to attract lending may have also added to to be addressed,” he notes. “The regulatory provisioning or whether the stress the bank was facing,” he management remuneration is a more open targeted disclosure says, adding that a much-needed linked to the profit of the bank. regime with appropriate approvals management change was brought The profit of the bank depends for provisioning with respect to in by RBI in 2019 with the appoint- primarily on disbursement or funds restructuring may be explored.” ment of Ravneet Gill as MD & deployed. This leads to innovative He adds that serious govern- CEO. “The new management was financial engineering and ’struc- ment and regulatory intervention tasked with the mission to save the tured solutions’ which oftentimes is needed for building a far more bank by finding eligible investors. are nothing but ‘evergreening.’” active and robust corporate bond Various investors showed interest To ensure credit discipline, market. “A mature corporate bond but ultimately none fructified.” institutions - other than sched- market (with appropriate disclo- However, with the bank “slip- uled commercial banks which sure mechanisms) may eventu- ping fast into ICU,” the RBI had have already such regime - may ally, albeit not absolutely, reduce no other option but to step in by put in place conflict manage- the dependence of corporates on invoking section 45 of the Banking ment and risk management poli- banks for debt capital other than Regulation Act, says Dutt. “Section cies which are more specific, says for working capital requirement,” 45 is invoked under exceptional Dutt. For example, the risk/compli- says Dutt. Finally, far more use of circumstances and gives the RBI ance team can be completely sepa- technology especially by RBI in the power to apply to the central rated from reporting lines to the its supervisory role is an essential government for suspension of busi- MD/CEO and report directly to the requirement. “This shall aid RBI ness by a banking company and to board with their remuneration also in identifying issues and providing prepare schemes of reconstitution not being linked to the profitability directions for corrective or pre- or amalgamation,” says Dutt. “The of the bank. “Although Yes Bank emptive actions,” he concludes.

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“We’ve had such a long bull market potential clients to show them ways they run, that a lot of new participants in the could opportunistically look at down- U.S. LAW FIRMS OFFER distressed investment market don’t have turns within various industries, as well the experience of a downturn, so we’ve as how best to protect their current been inundated with distressed inves- positions,” Shana Elberg, a corpo- ‘BANKRUPTCY 101’ tors asking us to do teach-ins,” he said. rate restructuring partner at Skadden, Some investors want to learn how Arps, Slate, Meagher & Flom, said in an SESSIONS AS bankruptcy works while others are more emailed statement. focused on the nuances of credit agree- Clients should actively monitor ments. There have also been questions their positions and consider their stra- DEFAULTS PROJECTED about how best to take advantage of a tegic options on a continual basis, partic- disruption and how to put cash to work ularly in consultation with advisors that in an effective means, Steel said. can help them either weather the storm TO SKYROCKET Fitch expects $80 billion of lever- or opportunistically take advantage of aged loan default volume in 2020 and the situation, she said. (Reuters) As the economy rattles toward more than $120 billon by the end of 2021. In the coming months, many a recession and defaults are forecast to It is now expecting a 5-6 percent default professionals will continue to lean on skyrocket, investors and company exec- rate for loans in 2020 and an 8-9 percent colleagues and advisors that worked utives are seeking advice on how best to default rate for loans in 2021. The lever- during the 2008 financial crisis. prepare for what could be a prolonged aged loan default rate ended February “A lot of people are looking back downturn. at 2.1 percent. to the ‘08-‘09 recession to see what Moody’s Investors Service and Fitch Moody’s is also forecasting a large happened there and trying to learn from Ratings expect defaults to more than jump in defaults. The list of borrowers those experiences,” said Stephen Zide, double in the next year as the corona- with a grade from the ratings firm of B3, a partner focused on bankruptcy and virus pandemic weighs on businesses, six steps below investment grade, and a restructuring at law firm Kramer Levin with supply chains interrupted and retail negative outlook or lower rose to an all- Naftalis & Frankel. operations closed, pushing companies to time high of 311 companies at the end “I lived through it but for those who fire workers or put them on leave. of March. didn’t, they are trying to understand Investment firms and businesses With defaults already starting to what happened and how things played are preparing for the months ahead, pick up, advisors are encouraging clients out to be helpful for investment decision but after more than 10 years of growth, to be proactive. making (now),” he said. “But this may be many financial professionals have never Before the “outbreak, we had much worse than 2008-2009; the jury lived through a downturn and lack the been actively meeting with clients and is still out.” experience of the great financial crisis to lean on. To prepare, asset managers and company executives are reaching out to law firms and financial advisors for a refresher on restructuring and bankruptcy. According to Leonard Klingbaum, a partner in the finance group at firm Ropes & Gray, there are a lot of clients who have not been through a downcycle and are asking: how does this play out? “It is a first time for a lot of people, so there is some historical education,” he said. “Every downturn is different, but a lot of the playbooks are similar, so we are spending time educating people.” Lawyers at Goodwin Procter have been asked by investors to run ‘Bankruptcy 101’ sessions, about distressed investing and bankruptcy, according to Howard Steel, a partner in the financial restructuring practice at the law firm.

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ORRICK, OSBORNE CLARKE APPOINTMENTS TO CLOSE HK OFFICES U.S. law firm Orrick, Herrington & Sutcliffe and the UK’s Osborne Clarke have announced that they will shutter their offices in Hong Kong. Osborne Clarke will cease opera- tions by June. The firm has had a pres- ence in Hong Kong for over five years, having launched its office there – its MARK COOPER ADDY HERG SHEENA JACOB first foray in Asia – in 2014 after hiring LEAVING LEAVING LEAVING Hogan Lovells Skrine JurisAsia Bird & Bird partners Marcus Vass and JOINING JOINING JOINING John Koh. Initially operating in associ- Latham & Watkins Wong & Partners CMS ation with Koh Vass & Co, the firm had PRACTICE PRACTICE PRACTICE been trading as Osborne Clarke since M&A China Outbound Intellectual Property February last year. LOCATION LOCATION LOCATION Osborne Clarke’s Hong Kong Singapore Kuala Lumpur Singapore office has two partners and two asso- ciates. The firm will refocus its regional growth plans on its Shanghai and Singapore offices, as well as its asso- ciation with Indian firm BTG Legal. Meanwhile, Orrick, which is set to wind down its operations by August, told ALB that the decision had been made a while ago; however, the announcement was delayed because of the COVID-19 outbreak. HELENA KOK LYDIA KONG DONGHO LEE Orrick’s Hong Kong team now LEAVING LEAVING LEAVING comprises of four partners and seven Galaxy Entertainment Navis Capital Partners Herbert Smith Freehills other lawyers and trainees, who advise JOINING JOINING JOINING MdME Lawyers Wong & Partners White & Case on areas including investment funds, PRACTICE PRACTICE PRACTICE M&A and disputes. Employment Competition M&A After losing the entirety of its LOCATION LOCATION LOCATION Hong Kong capital markets practice Macao Kuala Lumpur Seoul in 2017 to Morgan Lewis & Bockius, the firm sought to rebuild in Hong Kong with a focus on technology and innovation. However, it did not see the growth it was looking for. “While our practices in Beijing, Shanghai and Taipei have thrived we, unfortunately, have not been able to grow our team in Hong Kong in a way that aligns with our strategy globally and creates opportunities for cross-office collab- SAMATA MASAGEE TOSHI TSUCHIYA WARANON VANICHPRAPA oration,” Orrick said. Additionally, its LEAVING LEAVING LEAVING litigation and arbitration head in Hong Weerawong, Chinnavat & Partners Orrick, Herrington & Sutcliffe Baker McKenzie Kong, Charles Allen, also left to join JOINING JOINING JOINING U.K. firm RPC last June. DLA Piper Withers DLA Piper PRACTICE PRACTICE PRACTICE The firm, however, said that the Finance Real Estate M&A closure will not affect its other offices LOCATION LOCATION LOCATION in Greater China. Bangkok Tokyo Bangkok

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Pauline Wright, president of the Law Council of Australia, says the arrests violate the right to peaceful protest, guar- anteed under Hong Kong’s Basic Law. “The Law Council is deeply concerned that these arrests have taken place well after the 2019 protests in ques- tion, and against the backdrop of the COVID-19 pandemic. The undermining of the rule of law in Hong Kong, as well as the threats to the human rights and civil liberties of its residents, will not go Media mogul and Apple Daily founder Jimmy Lai Chee-ying (C) leaves from a police station after being arrested for illegal assembly during the anti-government protests in Hong Kong, China February 28, 2020. REUTERS/Tyrone Siu unnoticed,” Wright says. Patterson also points to the broader ramifications of the recent developments in Hong Kong. Fitch’s decision to down- grade Hong Kong’s rating shows that ARREST OF PROMINENT LAWYERS IN the city’s reputation as a credible inter- national financial and legal hub “is on a knife-edge,” he says, but adds this is not HONG KONG CASTS UNCERTAINTY directly in response to the recent arrests and is instead a result of the cumulative Last month’s mass arrests are the in largely peaceful marches is a major impact of Hong Kong’s government poli- latest blow to Hong Kong’s autonomy, statement of intent,” says Patterson. cies over recent years. say legal bodies and human rights At the same time, pro-democracy “In the last year we have seen the groups in the city and beyond. But the advocates in Hong Kong say the arrests government bulldoze ahead with the arrests haven’t been the only devel- are compounded by comments made extradition bill despite business objec- opment concerning to pro-democ- from Hong Kong and Macau Affairs tions, ineptly handle protestor grievances racy activists in the city. On April 15, Office (HKMAO), which supported the and thereby spark a spiral of increasingly prominent activists including Martin police response, and commented on violent protest fuelled by police brutality, Lee, founding chair of Hong Kong’s domestic politics. and pursue a campaign of politicised Democratic Party, barrister Margaret These statements breach HKMAO’s prosecutions,” Patterson says. Ng, and founder of One Media Jimmy remit, say pro-democracy activists. The “At each turn, the SAR government Lai, were arrested on illegal assembly Hong Kong government has backed - presumably responding to diktats from charges. The high-profile nature of the the comments, releasing a statement Beijing - continually fail to take actions arrests have led many to speculate that in support. which inspire confidence that they are these are intended to send a broader The Hong Kong Bar Association has able to act in the best interests of the message to protesters. released a statement saying these recent city as a financial centre in the long run,” Jason Y. Ng, convener of the statements are “inconsistent” with past he adds. Progressive Lawyers Group, an advo- comments from the HKSAR Government. Outside of Hong Kong, Jason Y. cacy group that “seeks to defend Hong “On such an important issue and given Ng agrees, the arrests have added to a Kong’s rule of law,” believes that the the plain and obvious meaning of Article growing perception that the city is “no arrests have sent a clear signal to citi- 22 of the Basic Law, the people of Hong longer the free society that foreign states zens that the government will pursue Kong are entitled to a clear, reasoned and businesses once thought it was,” them “with the fullest extent of the law, and properly supported exposition of he says. “Names like Martin Lee and and that it will throw every resource it the legal position. The current uncer- Jimmy Lai are internationally known; has available to it to deter them from tainty contributes to undermining confi- to the overseas observer, their arrest taking to the streets and making their dence in both the CPG’s and the HKSAR for merely participating in a nonviolent voices heard.” Government’s commitment to enshrined rally is as shocking as it is consistent with Johnny Patterson, director of Hong in the Basic Law,” the statement said. the views that the erosion of freedoms in Kong Watch, a UK-headquartered human The arrests and comments have Hong Kong is real and quickening,” he rights organisation, labels the arrests as not escaped global attention. The says, calling the “almost choreographed “shocking.” “Arresting a group of some International Bar Association noted that rounding-up of the city’s leading activ- of the most well-known and highly the “international legal community is seri- ists” an attempt to intimidate ordinary respected activists, including the city’s ously concerned by the arrest of 15 veteran citizens from participating in protests in most senior lawyer, for their participation pro-democracy figures in Hong Kong.” the future.

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 11 BRIEFS

Q&A ‘HKEX AS A WHOLE HAS RISEN TO THE CHALLENGE’ Seasoned capital markets expert Bonnie Y Chan recently rejoined Hong Kong Exchanges and Clearing (HKEX), the parent company of the Hong Kong stock exchange, as head of listing. Chan, who spent nearly a decade at Davis Polk & Wardwell, says that while she might have returned at a difficult time, her team is firmly focused on the future.

ALB: Before your role with Davis Polk, navigate through these challenges while you held a senior role at HKEX. What bearing in mind the interests of inves- brought you back? tors and the need to keep the market CHAN: I had an immensely fulfilling informed. Some listing applicants have time when I served as head of the IPO had their IPO plans disrupted. However, Department at HKEX from 2007-2010. I sense an eagerness to resume activi- During my nine years with Davis Polk ties, and the Listing Division will do our as a private practitioner, I witnessed best to facilitate reinstating the pipe- how Hong Kong’s markets underwent line flow as soon as that is possible and several significant changes as a result of appropriate. policy initiatives championed by HKEX. I consider myself a clear beneficiary of ALB: What are some of the key listing those policy initiatives, many of which trends we’re seeing emerge in Hong became the bedrock of my practice at “My goal is to contribute Kong at the moment? Davis Polk. Now that I have passed the to making Hong Kong’s CHAN: We introduced a very signifi- baton on to the younger partners at the capital markets a cant set of reforms two years ago with firm, I feel that it is the right moment to a number of new chapters added to the return to HKEX and hopefully contribute compelling choice for Listing Rules to enable new economy to the shaping of policies that are funda- issuers and investors companies to list in Hong Kong. We mental to solidify Hong Kong’s position globally. I hope to have seen those reforms bear fruit and as an international financial centre. there is now a meaningful population of achieve this through TMT and biotech issuers listed on HKEX. ALB: 2020 has been an incredibly shaping policies which are I believe this trend will continue, and tough year so far. What have been the accommodating yet fair, we have received many enquiries from big challenges and adjustments for potential issuers and the enthusiasm the team? and by making processes in the market is remarkable. We will CHAN: Indeed, everyone has had to nimble yet thorough.” continue to refine the listing regime so adjust to the constraints of working that Hong Kong remains a leading IPO from home while coming up with solu- BONNIE Y CHAN centre. tions to unprecedented challenges. However, I am very grateful and proud in which we operate to do what we can ALB: Looking longer term, what do to be leading a team that is aware to help others get through these diffi- you want to achieve during your time that their jobs have an important and cult times. in the role? unique purpose, which is to maintain CHAN: My goal is to contribute to making the smooth functioning of Hong Kong’s ALB: What are your key focuses for Hong Kong’s capital markets a compel- markets. In just three months, we have HKEX over the coming months? ling choice for issuers and investors already issued special guidance to the CHAN: I can see a number of key focuses globally. I hope to achieve this through market four times, providing relief and on the regulatory front. Many listed shaping policies which are accommo- advice to the market in light of COVID- issuers will have to take stock of the dating yet fair, and by making processes 19. HKEX as a whole has risen to the impact of COVID-19, and inevitably a nimble yet thorough. I would also like to challenge to keep markets open and number of them may have to respond devote a good part of my time grooming stable while collaborating with all of with more exceptional measures. We will the next generation of leaders for the our stakeholders and the communities endeavour to help these listed issuers Listing Division.

12 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM BRIEFS

NORTH ASIA AND SOUTHEAST ASIA/SOUTH ASIA LEAGUE TABLES

North Asia Announced M&A Legal Rankings North Asia Announced M&A Financial Rankings

No. 1 - Fangda Partners No. 1 - China International Capital Co

10,531.7 Value ($MLN) 22,468.6 Value ($MLN) Deals: 23 / Market Share: 5.1 Deals: 8 / Market Share: 10.8

Value Market Value Market Rank Legal Advisor ($MLN) Deals Share Rank Legal Advisor ($MLN) Deals Share 2 Mori Hamada & Matsumoto 9,149.1 26 4.4 2 Morgan Stanley 15,336.0 16 7.4 3 Davis Polk & Wardwell 7,478.0 4 3.6 3 Nomura 10,992.3 29 5.3 4 Sullivan & Cromwell 7,109.9 5 3.4 4 HSBC Holdings PLC 9,334.1 5 4.5 5 Anderson Mori & Tomotsune 6,876.7 14 3.3 5 Goldman Sachs & Co 8,682.3 10 4.2 6 Norton Rose Fulbright 6,614.1 5 3.2 6 Minsheng Securities Co Ltd 6,689.5 3 3.2 7 Commerce & Finance Law Offices 6,579.7 1 3.2 7 Deloitte 6,605.3 26 3.2 8 Freshfields Bruckhaus Deringer 5,830.9 10 2.8 8 Lianchu Securities Co Ltd 6,579.7 1 3.2 9 Loyens & Loeff 4,074.1 3 2.0 9 Anglo Chinese Corp Finance 6,158.1 1 3.0 10 Nagashima Ohno & Tsunematsu 3,827.8 34 1.8 10 CITIC 6,062.6 23 2.9

(*tie) Based on Rank Value including Net Debt of announced M&A deals (excluding withdrawn M&A) (*tie) Based on Rank Value including Net Debt of announced M&A deals (excluding withdrawn M&A)

Southeast Asia / South Asia Announced M&A Legal Rankings Southeast Asia / South Asia Announced M&A Financial Rankings

No. 1 - Freshfields Bruckhaus Deringer No. 1 - JP Morgan

13,295.9 Value ($MLN) 18,688.9 Value ($MLN) Deals: 4 / Market Share: 17.3 Deals: 6 / Market Share: 24.4

Value Market Value Market Rank Legal Advisor ($MLN) Deals Share Rank Legal Advisor ($MLN) Deals Share 2 Allen & Overy 11,117.2 4 14.5 2 Goldman Sachs & Co 14,414.2 5 18.8 3 Linklaters 10,600.0 2 13.8 3 UBS 10,854.4 3 14.2 4 Davis Polk & Wardwell 10,083.3 4 13.1 4 Barclays 10,739.3 3 14.0 5 AZB & Partners 9,923.0 30 12.9 5 Greenhill & Co, LLC 10,600.0 2 13.8 6 Allen & Gledhill 9,155.4 8 11.9 6 Morgan Stanley 10,127.0 5 13.2 7 WongPartnership LLP 8,056.5 5 10.5 7 Deloitte 8,924.6 5 11.6 8 Hogan Lovells 7,364.7 5 9.6 8 Credit Suisse 8,409.6 4 11.0 9 Cyril Amarchand Mangaldas 7,120.3 35 9.3 9 BofA Securities Inc 6,690.8 4 8.7 10 White & Case LLP 5,690.8 1 7.4 10 Citi 4,280.8 8 5.6

(*tie) Based on Rank Value including Net Debt of announced M&A deals (excluding withdrawn M&A) (*tie) Based on Rank Value including Net Debt of announced M&A deals (excluding withdrawn M&A)

Any North Asia Involvement Announced M&A Activity - Quarterly Trend

Series1 Series2 440 5,000 Transactions of No. 374.3 354.1 324.7 340 4,000 268.4 282.1 280.3 278.7 253.3 244.0 256.2 243.8 254.6 218.1248.2 218.9 229.5 3,000 240 200.6 191.5 201.2 168.0 174.0 177.9 142.7 149.7142.8 160.8 150.2 2,000 114.7 131.9 115.3123.1 140 95.5 93.5 57.9 1,000

Rank Value US$ Billion 40 0 1Q 12 3Q 12 1Q 13 3Q 13 1Q 14 3Q 14 1Q 15 3Q 15 1Q 16 3Q 16 1Q 17 3Q 17 1Q 18 3Q 18 1Q 19 3Q 19 1Q 20

League tables, quarterly trend, and deal list are based on the nation of either the target, acquiror, target ultimate parent, or acquiror ultimate parent at the time of the transaction. Announced M&A transactions excludes withdrawn deals. Deals with undisclosed dollar values are rank eligible but with no corresponding Rank Value. Non-US dollar denominated transactions are converted to the US dollar equivalent at the time of announcement of terms. North Asia includes China, Hong Kong, Japan, South Korea, Taiwan. Data accurate as of 11 May 2020.

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 13 INDONESIA

A general view of a deserted main road during the imposition of large-scale social restrictions by the government to prevent the spread of STAYING THEthe coronavirus disease COURSE (COVID-19) in Jakarta, Indonesia, April 11, 2020. REUTERS/Willy Kurniawan Indonesia’s President Joko Widodo has prioritised infrastructure as one of his key development goals, but given the severity of which COVID-19 has hit Indonesia, this focus has been put on the back burner somewhat. While developments may have slowed, lawyers are conscious these projects are a long- term commitment, and sooner rather than later, the industry will bounce back. BY ELIZABETH BEATTIE

The scale of Jokowi’s infrastructure seaport, airport, economic zone, housing, While most challenges are development plans is ambitious. Defrizal boarder water resources, irrigation, tech- consistent with earlier concerns Djamaris, managing partner of Kudri nology, smelters, energy marine and expressed by lawyers, it is undeniable & Djamaris, says that data obtained agriculture, sea wall program, sector that the outbreak of COVID-19 has had from Komite Percepatan Penyediaan electrical, and aircraft industry growth,” a significant impact on Indonesia’s Infrastruktur Prioritas (Committee he outlines. But while the scale of these ability to currently carry out such for Acceleration Provision of Priority projects is far-reaching, they do face projects. Infrastructure) reveals that Indonesia’s several significant challenges Djamaris “Numerous infrastructure projects government has 245 national strategic says. Chief among these are “land acqui- most likely will be suspended,” says projects grouped into 15 categories. sition, financing, poor preparation on Djamaris. Among these are “the devel- “The 15 sector projects include infrastructure projects, and the outbreak opment of the Kuningan East Ring education infrastructure, road, train, of COVID-19.” Road in West Java, the Jragung Dam in

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Drinking Water Infrastructure in Indonesia

Given the importance of the water resources Hence, other form of entity is not entitled to in Indonesia, the governments of Republic of own or control the water resource for drinking Indonesia just recently issued Law No. 17 of water in Indonesia. 2019 on Water Resources (“Water Resource Law”) to reform the former water resources Partnership for Drinking Water Supply law. Previously, according to Law No. 7 of System 2004 on Water Resources (which has been Since the Water Resource Law has limit nullified by the Constitutional Court of the the rights to utilize the water resource for Republic of Indonesia), the individual or drinking water only to the State, the possible business entities were allowed to obtain mechanism for providing the infrastructure of the rights to exploit and/or utilize water, Adhitya Nugraha, S.H. the drinking water is by way of Public Private including for the purpose to provide the Associate Partnership (“PPP”). drinking water. The Water Resource Law, [email protected] however, provides a stricter requirement as The PPP scheme may be arranged that the the rights of the private sector to exploit and/ Ivan Almaida Baely & Firmansyah Law Firm state/regional owned enterprise to appoint or utilize the water resource are tightly limited Intiland Tower 9th Floor, the private sector to build the drinking water to certain conditions. Jl. Jenderal Sudirman 32, infrastructure in the form of build operate Jakarta Pusat 10220 - Indonesia and transfer contract (“BOT Contract”). In Rights to Use the Water Resources for T: (62) 21 5790 5090 this case, generally the BOT Contract for the Drinking Water in Indonesia F: (62) 21 5790 5080 drinking water infrastructure shall set out According to Article 6 of the Water Resource W: www.iab-net.com a provision that the infrastructure is built Law, the State shall guarantees the public and temporarily owned by state/regional rights to get sufficient quantities of the enterprise for as long as the term of the good quality, hygiene, and safe water on a clearly states that the rights over the water BOT Contract. Further, after the termination sustainable basis and at an affordable price resources for drinking water in order to fulfill of the BOT Contract, the full ownership of to fulfills the daily basis of the people’s the drinking water supply shall be controlled the drinking water infrastructure shall be needs and shall maintain the health and by the State and the license shall only be transferred to the state/regional owned hygiene. Further, the Water Resource Law given to the state/regional owned enterprise. enterprise.

Central Java, the Way Sekampung Dam “After this stage, we will assist and what usually happens in practice is in Lampung, the Temef Dam in East our clients to review the Engineering that this issue arises because of the land Nusa Tenggara, the construction of the Procurement and Construction (EPC) owner rejects the value of the compensa- Brebes Ring Road in Central Java, the contracts, cooperation agreement, and tion value or several parties claim to be irrigation network in Baro Raya in Pidie, other related agreements after the client the party entitled to receive compensa- Aceh, revamping the waterfront area in has been appointed in the tender,” he tion for such land acquisition,” he says. Pariaman, West Sumatra, and building says. To mitigate these complex issues, the Sp Tohpati - Tjokroaminoto bridge “In some cases, the process may lawyers need to ensure they conduct due in Denpasar, Bali” he says, following the include land acquisition with commu- diligence around the legality of the land government’s decision to reallocate a nity-landowners and our role in these ownership “and to determine the appro- large part of its budget funds to the situations is either to assist clients in priate compensation value to be given to COVID-19 pandemic relief efforts. mediation with the landowners or to the rightful landowner before the client proceed with court proceedings if there conducts the land acquisition process,” LAND COMPLICATIONS is a dispute in the land acquisition says Baely. When infrastructure projects are fully process,” Baely adds. While such issues are not unusual in progress, lawyers play a critical But for lawyers who are guiding when it comes to infrastructure devel- role in the development process Ivan clients through the process, challenges opment projects, Baely is hopeful that in Baely, managing partner at IABF, says. remain. the future, such problems may be able Primarily, lawyers working on infrastruc- “The biggest challenge that may to be mitigated against. ture development projects are repre- occur during an infrastructure project is “Hopefully in the future the govern- senting and assisting clients engaged in the process of land acquisition,” Baely ment can formulate a regulation to facil- in tenders held by the government. says, adding that there can be clashes itate the process of land acquisition and Lawyers are the ones who ensure that with the land owner, in cases when the the process of handling the dispute in clients can participate in such tenders land is set to be used for infrastructure court so that it doesn’t postpone and following applicable laws and regula- development. protract the infrastructure process,” he tions says Baely. “Based on our past experiences says, adding that these changes will

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 15 INDONESIA make is easier to realise Jokowi’s infra- laws and regulations to accelerate the To mitigate and address these structure development ambitions “as land acquisition process — notably issues, ministries and government soon as possible,” Baely adds. the 2012 Land Acquisition Law — this agencies should be required to synchro- Djamaris also agrees that land improved regulation leads to the perti- nise thematic maps from different acquisitions have posed significant nent question of how these regulations governmental agencies, he says. He issues in government infrastructure are being implemented,” Djamaris adds. cites the main obstacle developing projects. “The projects are often stalled The enforcement of regulations is this policy as “the reluctance of govern- due to people’s refusal to relinquish their a reoccurring theme for lawyers in the ment agencies to collaborate, chiefly land rights, disputes on land ownership, market, as are gaps in tools or initiatives. those that have the authority to issue or where one group claims to be rightful This can also be seen in the Indonesian permits.” owner certain land when settlement is government’s recently launched One This will also likely require some- achieved,” he adds. Map Policy Geoportal (KSP Geoportal). thing of a mindset shift. “The policy is And these aren’t just hypothetical The tool, which is intended to be used also not a merely technical process, it issues. “The Kemayoran – Kampung for project planning aims to offer a more is hugely political therefore it requires Melayu toll road, Sunter-Rawa Buaya, detailed view of land use, to minimise the involvement contestation among Batu Ceper, Pasar Minggu-Casablanca overlapping ownership claims. government agencies and between and the construction of the PLTU Batang, But the Map Policy Geoportal government and wider public partici- Kulon Progo Airport are concrete exam- still has weaknesses that need to be pation or communities,” Djamaris notes. ples of infrastructure development that addressed to meet its design says But other issues remain promi- has faced obstacles in land acquisition,” Djamaris. “Though the government nent for lawyers tackling such projects. Djamaris says. agencies have the authority to make Among these are financing and poor These challenges continue to their sectorial maps, no one standard- preparation around infrastructure persist despite the government being ised map existed, resulting in overlap- projects. These also require solu- proactive in the past with land acquisi- ping and conflicting claims to land,” he tions for projects to run smoothly, they tion laws. “The government has issued adds. believe.

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16 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM INDONESIA

WEATHERING THE STORM These namely include: in Indonesia is lack of intention from Given the challenges that remain, and “Government Regulation No. 1 of investors to conduct business and/ will continue to persist post-COVID-19, 2020 on State Financial Policies and or investment in Indonesia,” Djamaris the easing of bottlenecks in the form of Financial System Stability for Handling says, adding that further reform will future reforms will continue to be impor- the COVID-19 Pandemic and/or in the help to clarify access for investors to tant, lawyers say. “Further reform from Context of Facing Threats that Endanger conduct business and/or investment in the government is required to help the National Economy and/or Financial Indonesia. smooth the infrastructure projects,” System Stability; Minister of Finance But there is hope. In cases where Baely says, adding this should appear Regulation No. 23/PMK.03/2020 on such bottlenecks have been tackled, in the form of a new regulation. Tax Incentives for Taxpayers affected there have been results. “The govern- Djamaris agrees that in the imme- by the Corona Virus Outbreak; ment has realised that permit regula- diate future, action is needed to achieve Minister of Finance Regulation No. tion in Indonesia is complicated and all the priorities set out by Jokowi. He 28/PMK.03/2020 on Provision of Tax has taken action by establishing one adds that this will also be important Facilities on Goods and Services Needed gateway system for permit manage- when it comes to staving off the greater in the Context of Handling Pandemic ment for companies called OSS (Online impacts of COVID-19. COVID-19; Director-General of Taxes Single Submission) system through The government needs to “apply Decision No. Kep-156/PJ/2020 on OJK (Financial Services Authority of emergency regulation in regards to the Taxation Policy Regarding the Spreading Indonesia),” Djamaris says, explaining outbreak of COVID-19 in Indonesia to of Corona Virus Outbreak 2019; and this system is designed to simplify sustain all sectors to be stable,” says many other regulations related to the and clarify the mechanism through Djamaris, adding that the government impact of the outbreak of COVID-19,” which companies obtain certain busi- has “properly handled” the situation Djamaris adds. ness permits in Indonesia. “[They have] by enacting a number of regulations to But further reform of bureau- succeeded in shortening a very compli- combat the outbreak “without too much cracy is needed. “One of the results of cated mechanism for companies to compromising the economy.” the complicated bureaucratic system obtain permit in Indonesia,” he adds.

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HONG KONG PATENTS

TIER 1 • Baker & McKenzie • Bird & Bird IP RANKINGS • Deacons • DLA Piper As Asia becomes a major innovation hub, and the filing of • Hogan Lovells patents and trademarks continues at pace, law firms specialising in • Mayer Brown • Orrick, Herrington & Sutcliffe intellectual property are finding themselves increasingly in demand. TIER 2 In the 2020 edition of its annual list, ALB once again picks the • AWA Asia top firms for IP work across the region. • Barron & Young • CMS • ELLALAN • Fangda Partners BY MARICEL ESTAVILLO AND ASIAN LEGAL BUSINESS • Freshfields Bruckhaus Deringer • Jones Day • Morrison & Foerster • Nixon Peabody With the coronavirus pandemic certain more than half of all PCT applications,” says • Oldham, Li & Nie to pull down global economic prospects from Gurry. • Quinn Emanuel Urquhart & Sullivan this year on, 2019 could go down in history China and Asia’s new dominant role in • Stephenson Harwood as both the last hurrah before the impending global innovation was also highlighted in a • Wilkinson & Grist • Winston & Strawn slump and the prelude to a new era in inno- separate WIPO report on “The Geography • Vivien Chan & Co vation in industries pushed to the fore to of Innovation: Local Hotspots, Global mitigate the unprecedented health crisis. Networks” that was published last year. TIER 3 • Dechert “Last year was the best year we The report finds that while innovation has • Eagle IP have experienced in the course of the become more collaborative and transna- • Morgan, Lewis & Bockius • Norton Rose Fulbright past decade,” was how Francis Gurry, tional, it remains concentrated in a handful • Robin Bridge & John Liu the outgoing director-general of World of countries and even within these countries, • Ropes & Gray Intellectual Property Organization (WIPO), in particular cities and regions. • Squire Patton Boggs describes the 2019 performance of WIPO’s China, Japan, and South Korea were COPYRIGHT/TRADEMARKS services. three of the five countries, along with TIER 1 International patent, trademark, and Germany and the U.S., which accounted for • AWA Asia industrial design applications filed with the most of the patent production and scientific • Baker & McKenzie • Bird & Bird WIPO systems all posted record growths activity from 2015 to 2017. • CMS last year, according to the United Nations “China and the Republic of Korea are • Deacons (UN) agency for IP. Year-on-year interna- largely responsible for the rising share of • DLA Piper • ELLALAN tional patent applications filed with the new areas in knowledge production and • Hogan Lovells Patent Cooperation Treaty (PCT) grew by 5.2 innovation; together, they account for over • Mayer Brown • Orrick, Herrington & Sutcliffe percent to 265,800; international trademark 20 percent of patents registered in the • SIPS applications filed with the Madrid System years 2015–2017, compared to under three • Stephenson Harwood • Wilkinson & Grist grew by 5.7 percent to 64,400; and indus- percent in 1990–1999,” notes the report. • Vivien Chan & Co trial design applications filed with the Hague Patents filed in Asia rose to 48 System grew by 10.4 percent to 21,807. percent from 32 percent since the 2000s, TIER 2 • Dechert For the first time in the long history of while scientific publications increased to • Fangda Partners PCT, China became the biggest user of the 36 percent from 17 percent. “This reflects • Freshfields Bruckhaus Deringer • MinterEllison system last year, WIPO reported. This was a the rise of China and the Republic of Korea • MMLC Group position previously held consistently by the and comes despite the relative decline in • Nixon Peabody United States since the system began oper- Japan’s share of patents and publications,” • Norton Rose Fulbright • Oldham, Li & Nie ations in 1978. China filed 58,990 PCT appli- the report further elaborates while also • Quinn Emanuel Urquhart & cations last year, a 200 percent increase emphasizing the emergence of new global Sullivan • Robin Bridge & John Liu from the 276 applications it filed in 1999. innovation producers, among them India • Rouse HK “China’s rapid growth to become the and Singapore. • Simmons & Simmons top filer of international patent applications A testament to Asia’s rise in the global TIER 3 via WIPO underlines a long-term shift in the IP and innovation scene, a major shift in • Barron & Young locus of innovation towards the East, with leadership at WIPO favouring the Asian • Clifford Chance • Jones Day Asia-based applicants now accounting for group is set to happen this year.

18 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM COVER STORY

• Morrison & Foerster Associates • Makarim & Taira S. • Foley & Lardner • Spruson & Ferguson • ZeusIP • Pulungan, Wiston & Partners • Mayer Brown • Squire Patton Boggs • Prawiranegara • Squire Patton Boggs TIER 3 • Stephenson Harwood • DePenning & DePenning COPYRIGHT/TRADEMARKS INDIA • K&S Partners • Krishna & Saurastri Associates JAPAN DOMESTIC TIER 1 PATENTS • Mason & Associates • Baker & McKenzie • Phoenix Legal PATENTS • Hogan Lovells TIER 1 • Morrison & Foerster • Ajay Sahni & Associates TIER 1 • Orrick, Herrington & Sutcliffe • Anand and Anand • Abe, Ikubo & Katayama • Chadha & Chadha INDONESIA • Anderson Mori & Tomotsune TIER 2 • Khaitan & Co PATENTS • Mori Hamada & Matsumoto • Finnegan, Henderson, Farabow, • K&S Partners • Nagashima Ohno & Tsunematsu Garrett & Dunner • Lakshmikumaran & Sridharan TIER 1 • Nakamura & Partners • Foley & Lardner • L&L Partners • Am Badar & Partners • Oh-Ebashi LPC & Partners • Mayer Brown • Remfry & Sagar • Dwipo Lubis Baskoro & Partners • Morgan, Lewis & Bockius • Squire Patton Boggs • HHP Law Firm TIER 2 TIER 2 • Rouse/Suryomurcito & Co • Abe & Partners • AZB & Partners • SKC Law • Atsumi & Sakai • Beruar & Beruar • Tilleke & Gibbins • Fukami Patent Office MALAYSIA • Cyril Amarchand Mangaldas • Itoh International Patent Office • Fox Mandal & Associates TIER 2 • Nishimura & Asahi PATENTS • IndusLaw • Acemark IP • Ohno & Partners • Khurana & Khurana • AMR Partnership • Onda Techno Intl. Patent Attys. TIER 1 • Rahul Chaudhry & Partners • Barumun International Patent • Ryuka IP Law Firm • LAW Partnership • Singh & Associates • Biro Oktroi Roosseno • Seiwa Patent & Law • Marks & Clerk • Majmudar & Partners • George Widjojo & Partners • Shiga International Patent • Shearn Delamore & Co • Mason & Associates • Hadromi Adnan IP Group Office • Skrine • R.K. Dewan & Co • Inter Patent Office • Soei Intellectual Property Law • Tay & Partners • Samvad Partners • Januar Jahja & Partners • Sugimura & Partners • Wong & Partners • Singh & Singh Lall & Sethi • K&K Advocates • TMI Associates • ZICO IP • Subramaniam, Nataraj & • Pacific Patent Multiglobal Associates • Roosdiono & Partners COPYRIGHT/TRADEMARKS TIER 2 • Christopher & Lee Ong TIER 3 TIER 3 TIER 1 • Rahmat Lim & Partners • ALMT Legal • Assegaf Hamzah & Partners • Anderson Mori & Tomotsune • Raja Darryl & Loh • DePenning & DePenning • Budidjaja International Lawyers • Atsumi & Sakai • Shook Lin & Bok • Fidus Law Chambers • Citius Intellectual Property • Mori Hamada & Matsumoto • Mason & Associates • Lumenta, Sitorus & Partners • Nagashima Ohno & Tsunematsu TIER 3 • Perfexio Legal • Makarim & Taira S. • Nakamura & Partners • Lee Hishammuddin Allen & • RNA IP Attorneys • Pulungan, Wiston & Partners • TMI Associates Gledhill • Saikrishna & Associates • Prawiranegara International • Wong Jin Nee & Teo • ZeusIP Patent & Trademark TIER 2 • SS&R Legal Consultants • Abe, Ikubo & Katayama COPYRIGHT/TRADEMARKS COPYRIGHT/TRADEMARKS • Stephenson Harwood • Fukami Patent Office • Itoh International Patent Office TIER 1 TIER 1 COPYRIGHT/TRADEMARKS • Nishimura & Asahi • LAW Partnership • Ajay Sahni & Associates • Oh-Ebashi LPC & Partners • Lee Hishammuddin Allen & • Anand and Anand TIER 1 • Ohno & Partners Gledhill • AZB & Partners • Assegaf Hamzah & Partners • Onda Techno Int. Patent Attys. • Marks & Clerk • Beruar & Beruar • HHP Law Firm • Ryuka IP Law Firm • Rahmat Lim & Partners • Chadha & Chadha • Inter Patent Office • Seiwa Patent & Law • Shearn Delamore & Co • Cyril Amarchand Mangaldas • Januar Jahja & Partners • Shiga International Patent • Skrine • Fox Mandal & Associates • K&K Advocates Office • Shook Lin & Bok • IndusLaw • Roosdiono & Partners • Soei Intellectual Property Law • Tay & Partners • Khaitan & Co • Rouse/Suryomurcito & Co • Sugimura & Partners • Wong & Partners • K Law/Krishnamurthy & Co • SKC Law • ZICO IP • L&L Partners • Tilleke & Gibbins • Rahul Chaudhry & Partners TIER 2 • Remfry & Sagar TIER 2 JAPAN INTERNATIONAL • Christopher & Lee Ong • Sujata Chaudhri IP Attorneys • Acemark IP PATENTS • Raja Darryl & Loh • Saikrishna & Associates • Am Badar & Partners • Wong Jin Nee & Teo • Singh & Associates • Barumun International Patent TIER 1 • Biro Oktroi Roosseno • Baker & McKenzie TIER 2 • Budidjaja International Lawyers • Finnegan, Henderson, Farabow, • Fidus Law Chambers • Dwipo Lubis Baskoro & Partners Garrett & Dunner PHILIPPINES • Khurana & Khurana • George Widjojo & Partners • Hogan Lovells PATENTS/COPYRIGHT/ • Lakshmikumaran & Sridharan • Hadromi Adnan IP Group • Morgan, Lewis & Bockius TRADEMARKS • Majmudar & Partners • Pacific Patent Multiglobal • Morrison & Foerster • Mason & Associates • Orrick, Herrington & Sutcliffe TIER 1 • R.K. Dewan & Co TIER 3 • Quinn Emanuel Urquhart & • ACCRALAW • RNA IP Attorneys • Assegaf Hamzah & Partners Sullivan • Castillo Laman Tan Pantaleon & • Samvad Partners • Citius Intellectual Property • Ropes & Gray San Jose • Singh & Singh Lall & Sethi • HeruLukito & Partners • Cruz Marcelo & Tenefrancia • Subramaniam, Nataraj & • Lumenta, Sitorus & Partners TIER 2 • Quisumbing Torres

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 19 COVER STORY

• Romulo Mabanta Buenaventura • Ravindran Associates • Stephenson Harwood • Dharmniti Law Office Sayoc & de los Angeles • Robinson • YOU ME Patent & Law Firm • Mayer Brown • SyCip Salazar Hernandez & • YP Lee Mock & Partners Gatmaitan TIER 3 COPYRIGHT/TRADEMARKS • Villaraza & Angangco • Davies Collison Cave • Mayer Brown TIER 1 TIER 2 • Mirandah Asia TAIWAN • Baker & McKenzie • Baranda & Associates • Morgan Lewis PATENTS • Domnern Somgiat & Boonma • Bengzon Negre Untalan. Simply, • Stephenson Harwood • Tilleke & Gibbins IP • Spruson & Ferguson TIER 1 • ZICO IP • Betita Cabilao Casuela • Baker & McKenzie Sarmiento • Finnegan, Henderson, Farabow, TIER 2 • Carag Caballes Jamora & Garrett & Dunner • Apisith & Alliance Somera SOUTH KOREA • Jones Day • Chavalit & Associates • MarksPro PATENTS • Lee and Li • Rouse • Puyat Jacinto & Santos • Saint Island International Patent • Satyapon & Partners TIER 1 & Law Offices • Siam Premier International • Bae, Kim & Lee • Tai E International Patent & Law • Vidon & Partners • Kim & Chang • TIPLO SINGAPORE • Lee & Ko TIER 3 PATENTS • Ropes & Gray TIER 2 • Ananda IP • Shin & Kim • Chen & Lin • Dej – Udom & Associates TIER 1 • Yoon & Yang • Formosan Brothers • Dharmniti Law Office • Allen & Gledhill • Yulchon • Formosa Transnational • Mayer Brown • Amica Law • Tsar & Tsai • Baker & McKenzie Wong & Leow TIER 2 • Winkler Partners • Bird & Bird ATMD • C&S Patent and Law Office • Dentons Rodyk • Dr. Ahn International Patent TIER 3 VIETNAM • Drew & Napier Law Office • Deep & Far PATENTS • Donaldson & Burkinshaw • Finnegan, Henderson, Farabow, • Eiger • JurisAsia Garrett & Dunner • Tsai, Lee & Chen TIER 1 • Lee & Lee • Lee International IP & Law Group • Baker & McKenzie • Marks & Clerk • Royal Patent & Law Firm COPYRIGHT/TRADEMARKS • Pham & Associates • Rajah & Tann • Tilleke & Gibbins TIER 3 TIER 1 • Vision & Associates TIER 2 • AIP Patent & Law Firm • Baker & McKenzie • Davies Collison Cave • AJU Kim Chang & Lee • Chen & Lin TIER 2 • Eversheds Harry Elias • Barun IP & Law • Eiger • Hogan Lovells • Joyce A. Tan & Partners • Central Intellectual Property & • Lee and Li • Indochine Counsel • Gateway Law Corporation Law • Saint Island International Patent • InvestConsult Group • Mayer Brown • Cho & Partners & Law Offices • Rouse ADVERTISEMENT • Morgan Lewis • Kasan IP & Law Firm • Tai E International Patent & Law • SB Law • OC Queen Street • Kim, Choi & Lim • Tsar & Tsai • ZICO Law • Ravindran Associates • Koreana Patent Firm • TIPLO • RHTLaw Asia • Muhann Patent & Law Firm • Winkler Partners TIER 3 • Spruson & Ferguson • Stephenson Harwood • BROSS & Partners • Viering, Jentschura & Partner • Yangjae Law Firm TIER 2 • IPMAX Law • YOU ME Patent & Law Firm • Deep & Far • Phuoc & Partners TIER 3 • Y.P. Lee Mock & Partners • Finnegan, Henderson, Farabow, • Mayer Brown • Cantab IP • 5T International Patent Law Firm Garrett & Dunner • CNP Law • Formosa Transnational COPYRIGHT/TRADEMARKS 台北市中山北路三段27號13樓 業務涵括知識產權之申請、侵權及訴訟 • Mirandah Asia COPYRIGHT/TRADEMARKS • Formosan Brothers 13th Fl., 27 Sec. 3, Chung San N. Rd., Taipei 104, Taiwan, R.O.C. • Jones Day • Stephenson Harwood TIER 1 Phone: 886-2-25856688 Fax: 886-2-25989900/25978989 • WongPartnership TIER 1 • Tsai, Lee & Chen • Baker & McKenzie • Bae, Kim & Lee • BROSS & Partners Email: [email protected] Website: www.deepnfar.com.tw COPYRIGHT/TRADEMARKS • Kim & Chang • Hogan Lovells • Lee & Ko • IPMAX Law Deep & Far is confident to be the best IP firm, TIER 1 • Shin & Kim THAILAND • Tilleke & Gibbins and is prepared to take challenge for verification • Allen & Gledhill • Yoon & Yang PATENTS • Vision & Associates • Amica Law • Yulchon of its competence by receiving from the • Baker & McKenzie Wong & Leow TIER 1 TIER 2 client, e.g. 1) a pending or granted patent for • Bird & Bird ATMD TIER 2 • Baker & McKenzie • Indochine Counsel • Dentons Rodyk • AJU Kim Chang & Lee • Domnern Somgiat & Boonma • InvestConsult Group comments about how it can improve the claims, • Drew & Napier • Finnegan, Henderson, Farabow, • Rouse • Pham & Associates 2) a pending patent specification without the • Donaldson & Burkinshaw Garrett & Dunner • Tilleke & Gibbins • Rouse • Eversheds Harry Elias • KBK Patent Law Office • ZICO IP • SB Law claims for drafting the claims for comparison • Gateway Law Corporation • Lee International IP & Law • ZICO Law with the original claims, or 3) an initial • JurisAsia Group TIER 2 disclosure for preparing a claim set at the same • Lee & Lee • Ropes & Gray • Apisith & Alliance • OC Queen Street • Chavalit & Associates time with the firm the client is currently using so • Rajah & Tann TIER 3 • Satyapon & Partners that the client can compare and find out which • RHTLaw Asia • Barun IP & Law • Siam Premier International • WongPartnership • Central International Law Firm • Vidon & Partners firm can provide the better claims. The claims • Cho & Partners Deep & Far prepares always trap therein all TIER 2 • Jipyong TIER 3 competitors of the clients. • CNP Law • Kim, Choi & Lim • Ananda IP • Joyce A. Tan & Partners • Muhann Patent & Law Firm • Dej – Udom & Associates

20 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM COVER STORY

COUNTRY REPORTS In most cases, the work, from due The U.S. for instance, in its 2019 diligence, to prosecution, or enforce- Special 301 Report that put India on the Hong Kong ment, bundled the territory with neigh- Priority Watch List continued to push for Last December, Hong Kong started bouring Macau and China. In one key reforms in the country’s patent system. accepting and examining filings under account for McDonald’s, DLA Piper “India has yet to take steps to a new patent system which creates a handled IP management for the iconic address long-standing patent issues direct route for applicants of standard American brand in Hong Kong, Macau, that affect innovative industries. patent protection. and Mainland China as it ramped up its Companies across different sectors “The OGP (original grant patent) brand protection strategy in the region remain concerned about narrow patent- system demonstrates the government’s following the divestment of its assets in ability standards, the potential threat of commitment to bringing the local the three territories to CITIC and Carlyle compulsory licensing and patent revo- patent system on par with the main- in a deal reportedly worth $2 billion. cations, as well as overly broad criteria stream patent practices of the interna- In another landmark case handled for issuing such licenses and revocations tional community. It will also facilitate last year, Mayer Brown worked with the under the India Patents Act,” it says. the development of the innovation and Asia Video Industry Association to find IP is of particular importance in technology sector in Hong Kong,” says a solution to copyright infringement in India’s pharmaceutical industry. India’s David Wong, Hong Kong’s director of IP. Internet streaming pending changes in generic drugs industry is the world’s As one of the busier trade hubs in Hong Kong’s copyright regulation. biggest and local manufacturers are the region, Hong Kong was a routine leg either competitors or collaborators of for global law firms managing foreign IP India the world’s top pharmaceutical compa- for multiple jurisdictions in the region. IP is both a source of pride and a matter nies. Naturally, the caseload of top law Passing off and trademark infringe- of contention in India especially with firms in India last year included filings ment cases involving foreign brands some of its trading partners which and litigation cases for both domestic were some of the top cases handled by demand higher level of protection for and foreign pharmaceutical firms. top law firms last year. their exported IPs. Outside pharmaceutical, Anand

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台北市中山北路三段27號13樓 業務涵括知識產權之申請、侵權及訴訟 13th Fl., 27 Sec. 3, Chung San N. Rd., Taipei 104, Taiwan, R.O.C. Phone: 886-2-25856688 Fax: 886-2-25989900/25978989 Email: [email protected] Website: www.deepnfar.com.tw

Deep & Far is confident to be the best IP firm, and is prepared to take challenge for verification of its competence by receiving from the client, e.g. 1) a pending or granted patent for comments about how it can improve the claims, 2) a pending patent specification without the claims for drafting the claims for comparison with the original claims, or 3) an initial disclosure for preparing a claim set at the same time with the firm the client is currently using so that the client can compare and find out which firm can provide the better claims. The claims Deep & Far prepares always trap therein all competitors of the clients.

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 21 COVER STORY

& Anand handled a landmark case for websites and social media platforms, an in-demand market for foreign brands Ferid Allani against the Union of India says partner Kritika Sahni. “With busi- in the region. which could pave the way for software nesses going digital and getting access With its strong consumer market innovation patents, a timely develop- to a global audience, infringers are using and having the fourth largest population ment amidst the rise of AIs and block- more sophisticated techniques such as in the world, IP protection, especially of chain technologies. In its decision, automated bots to create new seller copyright and trademarks, accounted the court for the first time gave a new accounts or social media handles when for a big share in the caseload of IP law interpretation of Section 3(k) of India’s previous ones get delisted or blocked,” firms in Indonesia. Patents Act which excludes algorithms she says. “Another disturbing trend that Based on WIPO data, trademark from getting a patent. emerged was the mushrooming of local filings had been on an increase since In copyright, one of the big trans- startups that steal from patents owned 2015, posting a growth of 59 percent actions handled by AZB & Partners was by larger multinational companies, often in four years. Trademark filings via the Thomas Cook India’s $1.9 million acquisi- not commercialised in India, and receive Madrid system stood at 65,206 in 2018. tion of the ‘Thomas Cook’ brand for India, large seed or pre-series A funding from Patent filings via PCT, meanwhile, were Sri Lanka and Mauritius. This enabled VCs, usually without conducting IP due at 1,451 in the same year. Thomas Cook India to retain the brand diligence. We received many briefs to At the top of the list of concerns of in the three jurisdictions despite Thomas contest pre-grant oppositions against IP holders in the country are the rela- Cook UK entering into liquidation. such infringing patent applications – tively widespread piracy and counter- Ajay Sahni & Associates were in that were often on a fast-track route, feiting. Of late, law firms have handled the top tier in both patents, as well as owing to the applicant’s startup status.” an increasing number of IP disputes on trademarks and copyright. Owing to the Internet and social media. a boom in the eCommerce industry, Indonesia While IP work continued to be the firm received several mandates Despite experiencing a slower economic copyright and trademark-heavy, to initiate enforcement action against growth of 5.02 percent in 2019, Southeast patent protection is gaining ground in counterfeiters on popular eCommerce Asia’s largest economy continued to be Indonesia.

www.drewnapier.com • [email protected] • T: +65 6535 0733

22 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM COVER STORY

Last year, the Direktorat Jenderal Japan’s total number of patent similar appearance to GSK’s Diskus. In Kekayaan Intelektual signed an agree- applications declined by 1.78 percent this particular case, the firm was able ment on reinforced partnership with the to 307,969 in 2019. While domestic to convince the court that there was a European Patent Office, the second IP filings were slightly down, international likelihood of confusion despite it being office to do so in Southeast Asia after patent applications grew by 4.6 percent a prescription drug. Malaysia. The agreement is aimed at to 66,968 from the previous year. Patent strengthening bilateral cooperation on registrations totalled 179, 910 last year. Malaysia capacity for searching and examining Following Malaysia’s implementation of applications amid steady growth in Korea its new trademark law last year, a subse- patent filings. Last year, South Korea introduced a new quent increase in filings, especially for Demand for complex patent work law, the Medical Device Industry and non-traditional trademarks is seen. has also started to pour in. Tilleke Innovative Medical Device Support Act, The Trademarks Act 2019 offers & Gibbins handled one for Ping An which is aimed at promoting the devel- protection for shape of goods, pack- Technology, the tech incubator and AI opment of new innovative technologies aging, sound, scent, colour, holograms, R&D arm of China’s largest insurance and creating a new breed of local inno- positioning and sequence of motions company. vative companies. that could be graphically presented to There was no shortage of landmark identify goods and services. The new law Japan cases in South Korea last year, especially has also raised penalty for trademark Despite the relatively sluggish perfor- in healthcare. infringements to RM1 million ($232,070), mance of IP filings in Japan in recent Yulchon successfully repre- a maximum of five years imprisonment, years compared to its East Asian sented GSK in a preliminary injunction or both. counterparts, it remains one of the proceeding in a trademark infringement In 2019, trademark filings in top producers of innovation in the and unfair competition case against a Malaysia were up by 6.6 percent to region and an indispensable market domestic pharmaceutical company 46,530 while registrations dipped by for foreign IP. over its disk-shaped inhaler bearing 43.6 percent to 19,481.Industrial design

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 23 COVER STORY applications by 3.1 percent to 1,904 while number of copyright cases involving trials heard in Singapore, spanning over registrations were down by 16 percent to parties based in other parts of Asia. seven weeks in two tranches,” say Yeo 1,238. Meanwhile, patent applications in One landmark copyright case in and Tang. “The issues in the suit involve 2019 grew by 3.3 percent to 7,743 while Singapore last year was the one handled extremely technical and contentious and registrations fell by 3.8 percent to 4,213. by Allen & Gledhill for Sea Group/ highly complex patent invalidation and Garena. It was touted as the first copy- infringement issues, making it one of the Philippines right case in the city-state relating to the most complex patent infringement case The Philippines saw record growth in mobile game industry. that the Singapore High Court has heard. IP protection filings in 2019, with total Tony Yeo, managing director and There were two patents concerned, both filings increasing by 10 percent from the head of Tier 1 firm Drew & Napier’s IP of which relate to diamonds grown by previous year to 43,000. practice, and Yvonne Tang, a director chemical vapour deposition (CVD).” Being a consumption-driven in the IP practice, say that the depart- They add that the Singapore High economy with strong growth prospects, ment has been kept busy this year as Court delivered its written judgment filings for trademarks last year grew by 2020 brought on a whole new set of on Feb. 7 this year. “The High Court 10 percent to 39,399. Most of the filings challenges. “In light of the COVID-19 agreed with IIa Technologies that one were in the areas of agricultural prod- pandemic, the department had to of Element Six’s patent was neither new ucts and services and pharmaceuticals, quickly adapt to allow for work to nor inventive and ordered for the patent health, and cosmetics. continue seamlessly, first on an alter- to be revoked,” say Yeo and Tang. “As an Industrial design applications native team basis as a business conti- invalid patent is a complete defence to grew by 7 percent to 1,631; utility model nuity measure and subsequently to a infringement, the High Court also found filings increased by 4 percent to 2,228; full work-from-home basis,” they say. that IIa Technologies did not infringe the and patent filings grew by 2 percent “These measures were implemented said patent. As for the other patent, the to 4,024 from 3,962. The top filers for swiftly and efficiently to allow Drew & High Court found that the patent was patent protection were from the U.S., Napier to honour its commitment to our valid and infringed. IIa Technologies Japan, and China. clients to continue to provide excellent has filed an appeal against this finding Like the rest of the developing service regardless of the circumstances and Drew & Napier will represent IIa economies in the region, IP protection like we have done so for the past years. Technologies Pte Ltd at the appeal in the country is hampered by coun- We are grateful for our clients’ continued before the Court of Appeal.” terfeiting and piracy. The caseload of trust and confidence in our work.” Additionally, Tang and her team, the top law firms included conducting Significant milestones for Drew’s senior associate Jaswin Kaur Khosa criminal raid actions for mostly foreign IP practice in 2019-20 included Yeo and associate Edsmond Cheong, also brands. The increasing popularity of the being appointed to the Intellectual successfully represented Adidas in its Internet has also created a new avenue Property of Singapore’s (IPOS) panel appeal against the decision of Principal for counterfeiters and copyright pirates of IP Adjudicators for a two-year term Assistant Registrar of Trademarks, in a to distribute fake products. starting April 2019. “Only a very small trademark opposition commenced in number of leading private practitioners 2016 against a mark filed in Class 25 Singapore are appointed as IP Adjudicators,” say by Lutong Enterprise which resembled In a step aimed at strengthening its posi- Yeo and Tang. “As an IP Adjudicator, Tony an inversion of the iconic Adidas trape- tion as the region’s alternative dispute recently heard a trademark opposition zoid mark. resolution hub for IP, Singapore worked matter at IPOS. The matter is pending with the WIPO Arbitration and Mediation his written judgment.” Taiwan Center to offer reduced rates to busi- Also, a team comprising Yeo and Taiwan, a known technology manufac- nesses and creators who opt for media- fellow director Meryl Koh, and senior turing hub, is seen to be a big winner tion to resolve copyright disputes in the associate Javier Yeo, represented IIa from the U.S.-China trade war. A recent city-state. The previous arrangement Technologies, an industry leader and report by the UN Conference on Trade only covered patents, registered designs, manufacturer of lab-grown diamonds and Development (UNCTAD) estimated and trademarks. with the largest diamond growing facility the amount of windfall to the island from “The goal is for the diverse stake- in the world, in a patent infringement suit the trade tension to reach $4.2 billion. holders in the copyright and creative commenced by Element Six Technologies, The Government of Taiwan industries to gain greater access to a subsidiary of the De Beers Group, in launched last year a program to lure more efficient and cost-effective routes Singapore High Court Suit No. 26 of more Taiwanese companies operating to resolve their copyright disputes, 2016. “The suit includes a counterclaim in the Mainland for at least two years including those relating to collec- by IIa Technologies to invalidate and and are affected by the trade tension to tive management and orphan works,” revoke Element Six Technologies’ patents move back home. The transfers could the Singapore IP Office says. It notes in the Singapore High Court. The suit was give added lift to its technology industry. that there had been an increase in the one of the longest patent infringement Last year, patent applications in

24 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM BROUGHT TO YOU BY AJAY SAHNI & ASSOCIATES Ajay Sahni & Associates 177, Lawyers’ Chambers, Delhi High Court, New Delhi 110003 T +91 11 41032782, 41022982 E [email protected] W www.asahni.co

Ajay Sahni & Associates (ASA) is a boutique corporate law practice focused on intellectual • regular speaker on IP laws at the Institute of Company Secretaries, the Institute of property, innovation and technology. The firm was founded in 1983 with the objective of Chartered Accountants, the Haryana Police Academy and the Export Promotion rendering creative, robust and effective strategic legal advice and representational services. Council of India; and ASA is committed to delivering out-of-the-box, avant garde solutions to complex • formerly appointed as a senior panel counsel in the High Court of Delhi for conducting problems faced by its clients. The team strives to work with its clients as partners, helping central government cases. them manage risk and navigate challenging legal and business landscapes. In addition, Mr Sahni has written extensively on the subject of IP law, including as: ASA has a very strong disputes and enforcement practice with over 100 reported • a revising author of Lal’s Commentary on the Indian Copyright Act, 1957; and judgments in leading law journals and reports to its credit. The firm handles large IP • a co-author of seven volumes of the book titled Cases and Materials on Trademarks portfolios for many Fortune 500 clients (both Indian and international) on the prosecu- and Allied Laws. tion side. It has various awards and listings to its credit, such as the International Client Choice Award (Trademark), World Trademark Review (Leading firm and individual in Firm’s key service offerings enforcement & litigation as well as prosecution & strategy categories), Thomson Reuters Litigation, enforcement and dispute resolution Asian Legal Business IP Rankings (Tier 1 firm for Trademark and Copyright, Tier 2 firm for • Handling civil, criminal and regulatory cases on infringement of patent, trademark, Patent) and Thomson Reuters Asian Legal Business India Rising Stars 2019, among others. copyright, design, trade secrets, unfair competition; commercial mediation and Its members serve on various committees and expert groups in international associa- arbitration tions, as well as government bodies. • IP dawn raids, enforcement cases and domain name disputes ASA works with a sophisticated artificial intelligence and automation based in-house • Dispute strategy, risk assessment, drafting of submissions, preparation of documen- trademark portfolio management system to manage compliances, monitor threats and tation, evidence, witnesses alerts for clients. It is also the first law firm in India to offer blockchain-based IP protec- Prosecution, compliance and audit tion services. • IP prosecution ASA is led by its founder Ajay Sahni, who has been practising IP law since 1983 at • Entry assistance: clearance searches, landscape studies, freedom-to-operate searches the Supreme Court, high courts, district courts and tribunal levels across India. He has • IP audits and health checks argued numerous landmark cases, many of which have been reported in leading law • IP compliance management services reports and journals. His dispute resolution experience covers a wide spectrum of indus- • Cutting-edge tools based on automation and AI for 360-degree IP monitoring, threat tries, including pharmaceutical, retail, infrastructure, real estate, automotive, finance, assessment and compliance management services fast-moving consumer goods, power, telecommunications, education, chemical and Transactional industrial products. • Acquisition and commercialisation of IP assets • IP valuation A strong founder • Technology transactions and licensing Mr Sahni’s experience is evident in the number of key positions he holds or has held: • Safeguarding IP assets in mergers, acquisitions and joint ventures • former vice president at Intellectual Property Attorneys Association, New Delhi; Advisory and public policy • former vice president at Asian Patent Attorneys Association (India Chapter); • Anti-counterfeit investigations, forensics and enforcement strategy • invited by the Rajya Sabha Secretariat (upper house of the Parliament of India) • Customs border protection assistance and strategy and examined as an expert witness by the Parliamentary Standing Committee on • Branding, advertising, marketing, packaging and labelling strategies Commerce in relation to the Trademarks (Amendment) Bill 2007; • Drug and pharma regulatory filings, representation and support • member on the Advisory Board of The Patents and Trademarks Cases, a leading • Data protection and privacy monthly journal of IP case law in India; • Public policy advisory, advocacy and strategic litigation support

Taiwan increased by 2 percent from the filings in 2019 so everything looks quite anti-counterfeiting measures for their previous year to 74,652. Of the total, well from the relevant statistics,” CF clients formed a big part of the work of invention patents were at 48,268; design Tsai, managing partner of Taiwanese law firms in Thailand last year. patents at 8,804; and utility model firm Deep & Far, said. “However, from For the bigger law firms, the work patents at 17,580. the firm’s perspective, 2019 was a hard- covered managing IP portfolio for the The government reported that the ship year because this firm was subject larger Southeast Asia. In one case, ZICO total invention patent applications filed to a last transition period from human- IP did the trademark portfolio manage- by residents at 18,984 in 2019 was the based management to deeply computer- ment in eight countries in Southeast Asia highest in five years due to increases based one by which we have seen various for property and casualty insurer Chubb in the number of applications filed by signs of recovery even at these COVID-19 Limited. corporations, large enterprises and rampant months.” small and medium-sized enterprises. Vietnam In patents, Japanese firms were the top Thailand Vietnam passed a new law last year applicants followed by Chinese firms. IP protection has improved consider- effecting key changes to its IP regula- In addition to patent filings, top ably in Thailand, but a few challenges tion and to make it more aligned with the law firms in Taiwan for IP were kept busy remained, at least that’s according to terms of a new trade agreement it signed handling infringement cases, with some the U.S. in its 2019 Special 301 Report. with 10 countries, the Comprehensive patent-related cases matters of cross- “Concerns remain regarding the and Progressive Agreement for Trans- border litigation. availability of counterfeit and pirated Pacific Partnership (CPTPP). Meanwhile, trademark applications goods, both in physical markets and Among the changes are the longer at 86,794 were the highest since 2001. online,” it says in its unilateral review of grace period for patent applications from “This was due mainly to a 3 percent IP protection of its trading partners. The the date of public disclosure to 12 months increase in resident applications,” the report put Thailand on the watch list with from the previous six months and the government reports. Vietnam in Asia, while China, India, and terms in determining common name of “Some industries have strongly Indonesia were on the priority watch list. goods in applications for geographical backed up either the patent or trademark Indeed, IP protection and deploying indications.

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 25 THAILAND

In May 2019, Thailand’s Personal Data Protection Act (PDPA) “In general, the Act is comparable PRIVACY FIRSTto those of other jurisdictions in terms officially became law. Echoing General Data Protection of content or may in fact be considered Regulation (GDPR) somewhat, the PDPA regulates personal to be more stringent when compared to data collection, storage and dissemination. But while further other jurisdictions that do not currently regulatory developments are required to ensure the law can follow GDPR e.g. Singapore,” Pranat be fully implemented, businesses should be seeking out legal says of Thailand’s approach. help to ensure they are compliant now — and not dragging “This is because the PDPA substan- tially follows GDPR and GDPR is their heels — say lawyers. BY ELIZABETH BEATTIE currently the strongest data protection regime in the world. But the extent of enforcement is yet to be determined as Over the past few years, data expected in due course, lawyers say, the provisions concerning data protec- privacy has become a hot topic in Asia, adding that businesses are advised to tion will come into force on May 27, 2020 and regulation has become a growing begin making themselves familiar with and subordinated legislation has not trend. Last year saw several significant PDPA’s specific requirements, and its been issued yet,” he adds. developments across the region. In India, scope. the country’s Personal Data Protection Pranat Laohapairoj, counsel at GETTING READY FOR PDPA Bill began making its way through Bangkok-based Chandler MHM, tells While certain provisions of PDPA will be the parliamentary process, while in Asian Legal Business that Thailand’s immediately enforceable, other aspects Malaysia, a significant medical leak that Personal Data Protection Act has largely still require supplementary regulations exposed patient data last September mirrored the 2016 European Union further down the line for the PDPA to led to calls for legislative action. At the General Data Protection Regulation be fully or reasonably workable, Pranat same time, the Philippines’ National (GDPR). GDPR, with its stringent explains. Privacy Commission has led a push to requirements, has been something of “Businesses should first under- change the way data is processed, with a global blueprint for data privacy, and take an internal data mapping exercise the commission banning online lenders carries a reputation as a regulation with and conduct a due diligence exercise to for improper personal data use following teeth, and as something of a trendsetter. know how they obtain, store, and process data privacy complaints. “The PDPA was developed and personal data. Thereafter, the necessary Last year, Thailand also joined enacted in response to previous and documents can be crafted to enable the trend, rolling out its Personal Data concurrent enactments of data protec- businesses to continue their operations. Protection Act (PDPA) in May. The act tion laws in other jurisdictions. The intent Training is also highly recommended to offers a one-year grace period for busi- was for Thailand to have comparable law enable the employees of those busi- nesses to become compliant before they so that the standards for data protection nesses, especially those working with face legal enforcement. During this time, would be of an international standard personal data, to be familiar with the the office of the Personal Data Protection and businesses holding data would not law and its requirements. This would Committee, which will be responsible for be negatively impacted due to the lack assist employees in avoiding skirting or the enforcement of PDPA, was launched, of trustworthy law,” Pranat says. breaching the law, which will have mone- while additional rules continue to be As jurisdictions throughout Asia tary and reputational consequences for fleshed out. push to strengthen their data privacy the businesses,” he adds. While PDPA will officially come laws, many are looking to balance GDPR And though it may take some time into force on May 27 this year, further requirements, while also considering and further developments for the legis- developments and guidelines are to be regional approaches. lation to be fully implemented, PDPA

26 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM THAILAND will have immediate consequences. “Businesses should first undertake an internal “The immediate positive impact is that Thailand will be considered to be on par data mapping exercise and conduct a due diligence with other jurisdictions in terms of data exercise to know how they obtain, store, and process protection,” says Pranat, but for busi- personal data. Thereafter, the necessary documents nesses there are likely to be teething problems. can be crafted to enable businesses to continue “The negative impact that most their operations.” — Pranat Laohapairoj, Chandler MHM businesses may face is the additional cost of operation, especially those that deal with a lot of personal data. As more documents, protocols, personnel, phys- ical and electronic mechanisms, and standards of operations are added to businesses are currently of the view that But while some businesses may the operational steps, costs will increase the PDPA will not be fully operational by be taking a ‘wait and see’ approach, for these businesses, and ultimately the May 27, 2020, as many supplementary this is unadvisable says Pranat. “Some end-consumers may feel the impact,” regulations are not yet in place, and are provisions of the PDPA will be imme- Pranat says. not likely in place by then. As a result, diately workable and enforceable But while the act is currently incom- many businesses have not undertaken on May 27, 2020. Therefore, current plete, and will likely require a number the required steps to comply with the approaches by some businesses to of supplementary regulations, it will data protection law. The approach some wait for the supplementary regu- still take time before the law is truly businesses are taking is to wait for the lations to be issued may have both complete. supplementary guidelines to be issued. financial and reputational conse- “This will be a gradual process in This, unfortunately, is a common misun- quences for those businesses,” he the coming years,” Pranat says. “Many derstanding of the legal position.” adds.

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 27 OFFSHORE

CHRIS BICKLEY CONYERS DILL & PEARMAN

Christopher Bickley is a partner and head of the Hong Kong office of Conyers Dill & Pearman. He has been with Conyers since 1994. But his advice for career longevity is simple: “Embrace change and when facing challenges, always look for opportunities,” he says. However, that would be easier said than done, given the wide scope of his practice. Bickley’s practice includes all aspects of corporate law with specialist expertise in corporate finance. He is particularly experienced in initial public offers and the listings of shares of companies on the Main Board and the Growth Enterprise Market of The Stock Exchange of Hong Kong, and stock exchanges in other jurisdictions including Australia, London, Singapore, and NASDAQ. His experience extends to debt financings, schemes of arrangements, restructuring exercises, fundraising exercises and private equity investment. Bickley has also advised in several shareholder disputes and offshore contentious matters. In addition, Bickley is the author of Bermuda, British Virgin Islands and Cayman Islands Company Law by Thomson Reuters/Sweet & Maxwell Asia, now in its fourth edition. He advices young lawyers to listen more and turn to their mentors often. “Listen. Listen to your clients, listen to your colleagues. You can learn a lot by just listening,” says Bickley. “And it is always better to involve your advisors sooner rather than later.”

As in other years, Asian Legal Business continues FIONA CHAN its annual tradition of picking Asia’s standout APPLEBY lawyers from offshore law firms. These are legal Fiona Chan is a partner in the corpo- professionals who have not only met but also rate department of Appleby’s Hong exceeded client expectations. Kong office, advising on a full spec- trum of banking and finance, non- To compile this list, ALB surveyed clients of contentious insurance, technology offshore law firms, asking them to recommend and innovation, private client and lawyers who stood out not only for their ability to trust matters relating to the laws of Bermuda, British Virgin Islands and Cayman Islands. provide sound advice, but also their commitment With almost 20 years of offshore and onshore expe- to client service. The names listed here are rience in the Asian market, she leads the banking and in alphabetical order. finance, private client and trusts practices in the Hong Kong office as well as Appleby’s technology and innova- BY ASIAN LEGAL BUSINESS tion group and economic substance working group in Asia.

28 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM Join the Fold 让我们成为您的合作伙伴，与您成就!

Discover the Campbells client experience: innovative solutions, unmatched flexibility and the strength to deliver results. Our clients come first in everything that we do. 凯博律师事务所的客户体验：凯博律师事务所提供创新的解决方案，拥有卓越的灵活性及优秀的执行力，并把客户 利益放在首位！

Campbells is a leading offshore law firm with 50 years of experience advising on Cayman Islands and British Virgin Islands Law. 凯博律师事务所是一家领先的离岸律师事务所，有50年提供开曼群岛及英属维尔京群岛法律服务的经验。

To learn more about the distinct advantages offered by Campbells, please contact: 想多了解凯博律师事务所的独特优势，请联系： Jenny Nip – Partner, Head of PRC Group 聂淑娴律师 – 合伙人，中国部主管 E [email protected] | D +852 3708 3020 | M +852 9280 6185

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Chan cites “a strong will and dedication” as helping and onshore laws and regulations, they also appreciate her keep up with the significant amount of legislative being updated with the latest developments in offshore and regulatory developments in the key international laws and regulations that may affect the clients’ entities. financial centres in recent years. Chan joined Appleby in 2007 and has over 12 years “Continuous professional development is essential of offshore law experience in the areas of corporate and in keeping oneself abreast of changes relating to, among capital markets, banking and asset finance, as well as others, AML, CTF, CRS, FATCA, BEPS, Data Protection, trusts and foundations. and Economic Substance requirements,” she says. Given the whirlwind of recent developments, he And with the COVID-19 pandemic adding to already recommends clients to undertake an internal review of difficult times, she is seeing clients undergoing vigorous their offshore entities and seek advice early on steps to reviews and restructuring their businesses in an effort to be taken for compliance. mitigate the risks and potential losses of the current climate. “For clients with offshore entities, they need to be “Some have chosen to diversify their business, whilst familiar with (and aware of the latest changes to) the some have decided to contract and concentrate on core economic substance requirements implemented in many practices; yet some have taken the opportunity to adopt of the offshore jurisdictions in 2019, including whether new hardware and software, such as the utilisation of their entities are in-scope (and any exceptions), carrying digital technology in production and service delivery out any relevant activities, the tests to be satisfied, and and in the implementation of flexible or agile working notification and reporting requirements, along with many practices,” observes Chan. other regulatory changes,” he says. She encourages them to view this as a welcome He also has tips for legal colleagues looking to make opportunity to reconsider their strategies and opera- and keep clients happy. tions, and to adopt practices that they would otherwise “In addition to having sound technical knowledge not have implemented. in the practice areas specialised in, lawyers should be Considering this current situation, Chan advises her proactive and conscious of the developments in the colleagues in the profession to keep up with the latest market, industry and trends, look for the competitive legal and regulatory developments, market trends and advantage of both their firms and themselves, and focus technological advancements to be able to provide the on areas and services where value can be added,” says best solutions to clients when problems arise. Chan. “Analytical skills and creativity can at times be refined by practices. However, this does not mean that we must work relentlessly around the clock! Striking a MAGGIE KWOK healthy balance between work and personal life is crucial HARNEYS to having a sustainable career as a lawyer,” says Chan. Maggie Kwok is the Asia Head of Funds and Regulatory at Harneys. VINCENT CHAN She has a broad range of experi- APPLEBY ence spanning from fund formation, downstream investments, capital Vincent Chan is counsel in both the markets and corporate finance. corporate and the private client and Her practice has a particular trusts departments of Appleby´s focus on formation, structuring and maintenance of Hong Kong office. various types of open-end and closed-end funds including He describes the offshore legal hedge funds and private equity funds. market as “competitive” when it Kwok says this is very much an industry built on comes to winning work at an attrac- relationships and trust. tive but sustainable fee, as well as maintaining both “Investing time to get to know your clients, their existing relationships with clients and different profes- businesses and objectives and being able to develop sional parties and developing new ones. a strong relationship with them goes a very long way,” “Stepping into the shoes of the clients and trying she says. to understand their real needs and issues is important,” “I’m extremely privileged to be able to act as the he says about finding ways to stay ahead in the field. trusted advisor to many of my clients, whether it be While clients are often busy in running their busi- helping them to navigate a complex transaction, or even nesses, and onshore law firms are often occupied with just brainstorming with them on a potential issue they handling a range of issues such as drafting, negotiation are facing.”

30 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM conyers.com

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She says the secret that underlies this investment That perspective is also what he wants other lawyers is to allow yourself space and time to regroup your to take with them as they grow in their practice. thoughts, rejuvenate your mind, and carry out a talent “Have a sense of humour. Exercise every day. Invest review on an ongoing basis. For her, going for hikes and in yourself. Take the time to hone your skills, learn your being close to nature does the trick. craft and start thinking about business development early Maintaining this clear-headed attitude enables her on as it will pay off. Career paths aren’t always linear, so to support clients in these challenging times. don’t be afraid to take calculated risks,” he recommends. “On a personal level, many of us have been affected “I’m also a strong believer in mental health and well- by the situation and, more than ever, we must pull ness and fortunate to be part of a leadership team who together and support each other at this time. I have encourage and even incentivise our employees to ensure regularly been in touch with my clients and while circum- they have a work-life balance. I think this gives us an stances may be difficult at this point, I am hopeful that additional boost to go above and beyond for our clients.” the situation will improve sooner rather than later, and trust there will be even more opportunities for us to work on together once we come out the other side,” she says. NIGEL MEESON QC And as for those looking up to her, she recommends CONYERS DILL & PEARMAN being “open-minded and ready to explore.” “Be true to yourself and don’t let the herd instinct take charge. Find Nigel Meeson QC is a partner out where your passion lies and run with it,” says Kwok. and head of the Asia Disputes & For Kwok, being successful and fulfilled boils down Restructuring Group (ADRG) in to relationships, be it with others or yourself. “Getting Conyers Dill & Pearman’s Hong a head start when it comes to growing your network, Kong office. finding your niche and building relationships will help, Meeson joined Conyers in 2007 but at the same time, know that there’s time to reinvent to start the litigation practice in the yourself if needed!” Cayman Islands, which he has developed into one of the leading Cayman litigation practices. He names “mindfulness and a sense of perspective” IAN MANN as the key principles that help him to stay on top in this HARNEYS challenging profession. His practice focuses on insolvency and restructuring, Ian Mann is Harneys’ Asia managing trust litigation, corporate and shareholder disputes, insur- partner and a member of litigation, ance, asset tracing and international commercial litiga- insolvency and restructuring group tion. He also accepts appointments to act as leading in Hong Kong. counsel, expert witness, arbitrator and mediator. He swears by “unbridled The ADRG provides Bermudan, British Virgin Islands energy and enthusiasm every single and Cayman Islands litigation advice to clients across day” as his secret for success. Asia, ensuring that they have access to fully coordinated “In an increasingly competitive industry, which like litigation advice and services provided by a seamless every other sector is going through some unprecedented and comprehensive team across multiple jurisdictions challenges, I have found that a combination of leading by and time zones. example and when needed, empowering and entrusting Through these challenging times, he reminds clients my fellow lawyers and business professionals is key to to maintain good relations with their legal advisors. being successful,” says Mann. “Make sure all your outstanding lawyers’ bills have “Having a strong client focus, delivering first- been settled because you may need them to help you at class advice and surrounding yourself with some of the short notice,” says Meeson. brightest, most talented and passionate minds in the Before joining Conyers, he practiced for almost business certainly helps.” 25 years at the Bar in London as one of London’s top Mann specialises in restructuring, insolvency, share- commercial litigators. holder disputes and contentious trusts. According to his His advice to his colleagues in the profession is to firm, he regularly appears on behalf of elite families and find an area they find intriguing. is usually retained. “Be sure that you find the law interesting in its prac- This likely stems from his “quiet, good-humoured tical application to business activities, and be prepared resolve at a time of crisis”, which is incidentally what he to work hard and be underappreciated by clients,” says prescribes for clients during these challenging times. Meeson.

32 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM ogier.com

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both internally and externally. Within teams, flexibility is JENNY NIP key, as well as promoting a diverse and inclusive environ- CAMPBELLS ment,” says Oakes. He adds that a relaxed mood and the ability to laugh Jenny Nip is a partner at the corpo- together certainly do not go astray either, particularly as rate and finance practice group of the challenges posed by the coronavirus are diverse and Campbells’ Hong Kong office. She profound, both for individuals and institutions. is also the head of the firm’s PRC “Within institutions, management and legal teams Group and delivers key services for are faced with issues including financial, risk (reputa- the China practice of the firm. tional, fraud, AML), litigation and regulatory (including Nip specializes in corporate whether the institution can benefit from any assistance transactions including capital market transactions, packages). Some issues have not been seen before and mergers and acquisitions, take-private deals and down- others are more intense than in the past,” he says. stream private equity financing and investment deals. Clients have said that they value Oakes’ “commer- Because of her scope of duty, Nip stays on top of ciality and capacity to cut through a great amount of things by “keeping track of the global market trends complexity and provide straightforward advice”. and changes, remaining in good command of any legal And his career advice is also to the point. updates, understanding and being responsive to the “I would recommend starting your career in an client’s needs.” onshore law firm, preferably one of some size and which She advises her clients to: “Stay tuned in to global covers a number of practice areas. This will likely provide economic changes and the market responses to these a solid understanding of the law and also give an insight changes and to come and talk to me to see if any legal into clients’ needs and demands,” he says. means or measures may help to protect their interests Oakes has seen such firms provide a launching pad or strengthen their legal position,” says Nip. not only into in-house, offshore and niche roles, but also Nip has extensive experience in representing issuers, into a range of public interest areas – including pro-bono, arrangers and investors in connection with pre-IPO anti-discrimination and protection of refugee rights. financings and the listing of BVI and Cayman Islands companies on global stock exchanges, including Hong Kong and New York. NICHOLAS PLOWMAN In addition to her corporate practice, Nip also has OGIER significant expertise in advising international banks, financial institutions, leasing companies and corporations Nicholas Plowman is the practice on bank finance and debt capital market transactions. partner of Ogier in Hong Kong and Nip has a long list of the requirements for success. the head of Ogier’s Investment “Be diligent, innovative and commercial, stay on Funds team in Asia. He acts for a top of any changes in law and their legal implications, wide variety of Asian fund managers maintain integrity at all times, develop a professional in the private equity, long-only and and personal network, be kind to the clients and always hedge fund space. treat them as your close friends,” she says. Plowman’s own way of staying sharp is also what he recommends for other lawyers following his trail. “It is vital to stay on top of the myriad changes ANTHONY OAKES happening in our local market that impact our industry, OGIER in conjunction with the legal changes coming down the pipeline in our offshore jurisdictions. We cannot advise Anthony Oakes is the head of Ogier’s in a vacuum and our clients and referrers expect us to finance practice in Asia and special- understand and consider a host of factors when we are ises in banking, capital markets, providing our advice,” says Plowman. corporate transactions, structured “This is often referred to as ‘being commercial’ and finance and restructuring. is an essential and key ingredient of what we try to do He states that having a great at Ogier.” team is “vital”, particularly in these He tells both clients and fellow lawyers to make the challenging times. “To work remotely is not always best of the current situation. easy and the team has been excellent in maintaining a “The contrary view held by a number of our clients responsive approach and keeping up communication, is this is not just a health crisis, but also a once in a

34 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM OFFSHORE

lifetime opportunity to invest or launch a new busi- He credits his team’s dili- ness, particularly in the asset management space,” gence with helping both him and he says. his clients. “Look for opportunities and don’t be afraid of “Our team is focused on staying change. Look to build your own practice and be as tech- up to date as the business sector nically strong as you possibly can be. Find an area of changes to ensure we can provide the law you enjoy, rather than getting stuck in a rut (or agile responses,” says Searle. worse, in an area you hate) and then finding out it’s too He has spent his entire legal career focusing on late to change.” collective investment schemes in the Cayman Islands, Plowman has been named as one to the top ten the UK and Australia. offshore lawyers in Asia by Asian Legal Business for four His main advice for clients is to consider the legal consecutive years and has also been ranked as one of the implications of any major changes expected to be under- World’s Leading Investment Funds Lawyers in the last taken. four editions of Euromoney’s Expert Guides. Searle was admitted as an attorney in the Cayman Islands in 2003 and became a partner at Campbells in 2007. ROBERT C. SEARLE He is also admitted in Queensland, England & Wales CAMPBELLS (non-practising) and the British Virgin Islands. Prior to joining Campbells, he worked with SJ Berwin, and with Robert C. Searle is a corporate lawyer who is managing Australian law firm McCullough Robertson. partner of Campbells’ Hong Kong office. Searle’s specialty Searle has some simple words of wisdom for those lies in advising on the establishment and restructuring coming after him. of all investment funds. “Work hard and be curious,” he says.

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WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 35 FOREIGN INVESTMENT

THREEOn January 1, 2020, the new Foreign BECOME Investment Law (FIL) of the People’s Republic ONE of China and its Implementing Regulations came into force, formally replacing the so-called Three Foreign Investment Laws which has a history of nearly 40 years in China, marking the arrival of a new era of foreign investment. Compared with the old system, the new law has brought changes and breakthroughs to many fields of foreign investment, but it also leaves gaps in the legislation when it comes to some difficult issues. BY HU YANGXIAOXIAO

The legislative history of foreign ment practice, tells Asian Legal Business laws, but the whole legal system covered investment in China can be traced that the “formulation of these three laws many departmental rules and judicial back to 40 years: in 1979, the Law on was closely related to China’s reform and interpretation, many even in the form of Sino-Foreign Equity Joint Ventures was opening up in the late 1970s and early notices. This has led to a certain degree implemented, and in the following years, 1980s. Take the Law on Sino-Foreign of confusion in foreign investment the Law on Foreign-funded Enterprises Joint Ventures as an example, when this administration in China over the past and the Law on Sino-foreign Cooperative law and its Implementing Regulations 30 years. Foreign investment admin- Enterprises were promulgated respec- came into effect, China did not even have istration also involved many different tively. Altogether, they constitute the a complete Company Law. Our legis- regulatory departments: including Three Foreign Investment Laws and lative principle at that time was to first industry and commerce, commission regulate several matters concerning the practice, then promulgate and set up of commerce, foreign administration, entry of foreign investment into China in a law.” taxation, customs, finance and so on.” the past decades. Liu continues: “This means that the Vivian Desmonts, partner and Speaking of the previous foreign laws were very quickly drafted, and they head of Gowling WLG’s Guangzhou investment laws, Jerry Liu, a partner were not very specific. In the subsequent office, points to another issue of the at Global Law Office’sS hanghai office implementation process, we had to patch old laws: “Although the relevant laws and a lawyer with more than a decade them up as we go. There were not a lot have been regularly amended, Sino- of experience in foreign direct invest- of provisions in the foreign investment Foreign Joint-Ventures in China have

36 ASIAN LEGAL BUSINESS – MAY 2020 WWW.LEGALBUSINESSONLINE.COM FOREIGN INVESTMENT been governed since 1979 by specific “It was high time the FIL be wealth of new opportunities, especially rules, which became archaic on many adopted, and national treatment be for employee share ownership of stock matters such as corporate governance, finally granted to Foreign Invested purchase plans.” deadlocks between shareholders, exces- Enterprises in China. This is one of the Liu thinks that there are three main sively powerful for chairmen of the board most important legal reforms of the areas where the new FIL would affect the of directors (i.e. the JV’s legal representa- legal framework for foreign investors business of law firms. tive), administrative hurdles not appli- especially those operating under joint “The first is the prohibition of cable to Chinese domestic companies, ventures,” says Desmonts, summing up forcing foreign investors or foreign- etc.” the changes brought about by the new invested enterprises to transfer tech- law. “Although a few business sectors nology. At the beginning of 2019, the LEVEL PLAYING FIELD remain restricted to foreign investors State Council removed this article by Under such circumstances and after (as included in the negative list), the amending the administrative regula- many rounds of discussion and revision, Implementing Regulations of the FIL tions, but this time it was escalated in the new FIL and the Implementation published in late December 2019 confirm terms of legislation to show potential Regulations were finalised. The new FIEs shall benefit from equal treatment investors what China’s attitude on the law grants quasi-national treatment to with domestic companies in respect forced transfer of technology is. Many foreign investors, implements negative of government subsidies, government multinational companies, especially list management in the field of invest- procurement, intellectual property high-tech companies, are worried ment, and stipulates rules in technology transfer, investment agreements, infor- mation reports, intellectual property rights and other issues. According to Liu, the new law “plays more of a declarative role, “We can see that the number of provisions of the new demonstrating China’s attitude towards Foreign Investment Law is not large, and it only gives granting national treatment and corre- the general direction on many issues. The Company Law sponding protection to foreign inves- tors”. can be directly applied in the future to specific issues in He interprets the formulation and company management, operation and so on. Another the role of the new law from two aspects. background of the new law is to better welcome the “The unification of the former three foreign investment laws has restructured arrival of a new era of foreign investment.” the previous administration mode, and — Jerry Liu, Global Law Office it can be said that one of the main purposes of the new law is to update the old system. We can see that the number of provisions of the new FIL is not large, and it only gives the general direction on many issues. The Company Law can be protection, land supply, tax cuts, quali- about this when they enter China, and directly applied in the future to specific fication licensing, development and we hope to see foreign investors enter issues in company management, opera- application of national standards, HR the Chinese market more freely in the tion and so on. Another background of policies, etc.” future,” he says. the new law is to better welcome the “The second one is the regulation arrival of a new era of foreign invest- IMPACT ON LEGAL WORK of investment agreement. As an experi- ment.” Although considered more as a frame- enced foreign affair lawyer, I have accom- “After 2018, the momentum of work statement, there are still some panied many clients to sign investment foreign investment in China has weak- breakthrough provisions in the new law agreements with industrial parks or local ened. The development of China’s in different areas of foreign investment. governments, in which some preferential economy depends on the three And these changes are bound to have policies have been stipulated, but the ‘carriages:’ foreign direct investment, an impact on the relevant services law validity of such agreements has always exports and the domestic market. If the firms provide. been a problem,” says Liu. “The new law first carriage slows down, it will have an “The FIL brings many major directly recognises the validity of invest- impact on the overall economic develop- changes,” Desmonts tells ALB. “For ment agreements through designated ment. The promulgation of the new law example, it now finally allows Chinese provisions; declares that these agree- is also to a certain extent a response to individuals to directly become share- ments, including the terms on the imple- this situation.” holders of existing FIEs. This opens a mentation of the promises made to the

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – MAY 2020 37 FOREIGN INVESTMENT foreign investors, should be fulfilled to investing in China, especially in terms standing of the Chinese market is gradu- protect the interests of the investors. of IP protection, prohibition of forced ally deepening, which in many cases will This part is very practical. In the past, technology transfers, equal rights with not constitute an obstacle for them to our clients have even litigated and arbi- Chinese partners and level playing field continue to be optimistic and enter the trated in accordance with the investment against Chinese competitors,” says Chinese market.” agreement, but all of them were settled. Desmonts. In the future, such cases would have a Liu points out that the legitimacy INCREASING WORK stronger legal basis.” of natural person shareholder status “The implementation of the FIL as from The third aspect is the increase and the legitimacy of the VIE struc- January 2020 will certainly increase in business from existing FIEs brought ture are top concerns of the clients, the the business volume of our law firm as about by the new FIL. “The existing former has been clearly clarified in the we anticipate not only many renego- foreign-funded enterprises, mainly new law - natural persons of Chinese tiations of JV contracts in the next five Sino-foreign joint ventures, need to nationality can become shareholders of years of legal transition period, but also amend and adjust their corporate foreign-funded enterprises, while the the development of new programs to governance model, which is not a latter is still up in the air. Liu says: “The allow Chinese individuals or employees simple issue of industrial and commer- draft Foreign Investment Law prom- to participate in FIEs’ shareholding,” cial exchanges as it involves a new ulgated by the Ministry of Commerce Desmonts says of the potential increase round of negotiation between foreign in 2015 tried to clarify this issue, but in work brought by the new law. Liu says that as an established law firm serving in the cross-border business field, Global Law Office has a large portion of business in both the outward and inward investment in China. “With the new Foreign Investment Law coming into Therefore, “even though there are fewer force, foreign investment firms begin to receive quasi- provisions in the new law and they are national treatment in China. For foreign investors, quite broad, it still provides a general direction to us and our clients. We are especially those in Sino-foreign joint ventures, this very optimistic about the promulgation amounts to a complete change in the entire legal and implementation of the new law,” framework.” he says. As for the impact of the new FIL on — Vivian Desmonts, Gowling WLG the business of law firms in 2020, taking into account the COVID-19 pandemic, Liu believes that “the development of the pandemic will certainly have a greater impact on cross-border capital and personnel flow while having some impact on the business of law firms as investors and their domestic partners the new law and its Implementation well. But in general, we are cautiously in joint ventures. This include the rene- Regulations ultimately did not provide optimistic that the necessary projects gotiation of shareholder agreements, a straight answer. It is indeed sensitive, will proceed after the pandemic is over.” the interests of minority shareholders, not only to existing listed companies, He goes on to say that “the protective clauses and so on, which will but also to private equity and venture pandemic is a reshuffle of existing produce a considerable amount of addi- capital funds, which play an important businesses, including those online. tional business.” role in China’s economic development. To a certain extent, it will reshape the The development of Chinese enterprises, landscape of foreign investment. The GREY AREAS especially the ones involved in high and pandemic will first promote the financing How will the new law affect the behav- new technologies, needs these external of life science and health care projects, iour of foreign investors? Both Liu and funds. This may not be a problem that especially the R&D and manufacturing Desmonts tell ALB that their firms legislators can solve at a certain stage, of vaccines; online business will also have been advising clients on the draft and its shelving also reflects the wisdom further increase, which includes not only versions of the law since they were of legislation.” online shopping but also the services published a few years ago. “Many of The blanks in the new FIL is bound that provide technical support for online our foreign clients are concerned about to challenge law firms, but Liu also says: shopping, such as artificial intelligence, how the FIL will ensure they actually “Most of the clients with a VIE structure industrial Internet, consumer Internet get equal treatment in practice when are mature companies, and their under- and so on.”

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STEPS TO STRENGTHEN YOUR LAW FIRM IN A CRISIS BY AUDREY RUBIN

Your law firm is dealing with an certain kinds of skills and behaviours that and skills — both oral and written. Better incredible number of headaches right directly result in more and continued communications will support more busi- now. Clients and therefore many law business. Now might be the time to ness and more solid client relationships. firms may be slowing down. Revenue really study whether you are rewarding may be short of target projections; cash the right activities in the right way. Update your policies — Compliant and flow might be jeopardised; and there is current policies, such as Work from a basketful of administrative difficulties Leadership training — You’ve prob- Home policies, are needed at a time associated with remote work. ably been meaning to do this for a like this. So are policies around issues But this time can also be an oppor- long time and may not have found the like employee bonuses for talent refer- tunity to pull ahead of your competitors. time to concentrate on it. With just the rals, parental leave, and use of firm tech- I can suggest things that clients would commuting time you are saving, you nology. These are policies that your firm be impressed with and what would help can develop these plans and start the will need to continue succeeding and grow and strengthen your relationships work via virtual meetings. With strong growing now and in the future. Without with your clients. I also know what oppor- leaders come better teams and more relevant, current policies for guidance, tunities for improvement are out there. client engagement wins. your firm may be acting “like the old days” and thus risk losing business. Profitability — This is when to analyse D&I assessment and improvement — if your RFP responses are winning the Data about your firm’s diversity and Succession planning — Succession business you want. You have the time inclusion status, including retention of planning could not be more relevant. now to assess your pricing to assure your talent, exists within your firm. Use this This is an area where law firms typically margins and profitability are the best time to hire a professional to analyse lag many other professions. As lawyers, they can be. If you are in the market for a your situation and implement some we don’t like to completely quit or retire, new kind of vendor, like an e-discovery or positive changes, so that when busi- and we often think we know better than litigation support vendor, do your search ness picks up again, you are ready for anyone else about our matters and our and fee negotiations now. It should be your clients’ D&I demands. clients. But if we’re learning anything an opportune time, as some litigation is right now, it is that we must have contin- temporarily slowing down. Get your remote working arrangements gency plans in place. Use this time to right — You may already have an oper- work on those plans. Implement proce- Business retention — Reach out to your ations or IT professional at your firm to dures to share clients with the next clients to see how they are — by phone handle the day-to-day issues associated generation of lawyers so that your firm if possible. As I drafted this article, I with remote work. If you don’t, there are can continue to grow and succeed. received a phone call from one of my consultants you can retain to advance vendors to see how I was doing and if your operations through these strange This period of remote work and non- there was any help that I needed. That times. You — the law firm partners and congregating certainly does not mean one-minute outreach meant a lot. It business development professionals — that work stops. But it does create oppor- made me feel that, as a client, my vendor should be concentrating on your clients tunities to come out stronger on the cared about me. And it also resulted in and continuing the work that can be done other side for the firms willing to put in more work for the vendor because I took now. Billings don’t necessarily have to go the effort now. the vendor up on its offer to provide some down in times like these, even though we telecommunications-based services. can’t congregate or go to court. Audrey Rubin is a recognised leader in operational, financial, and cultural Review your compensation plans — You Communications training — This is excellence in the workplace. She may think that compensation plans and especially appropriate now that we must advises law firms and departments on partnership agreements are not busi- communicate in ways that are not face- profitability, D&I, maximising value and ness development matters — but you’re to-face. Hire an advisor to train your resources through process improvement mistaken. Your firm should be rewarding people on better communications tools and practical technology.

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