MCI (P) 041/02/2020 ISSN 0219 – 6875 KDN PPS 1867/10/2015(025605)

PLUS: WE PROFILE THE RISING STARS OF MALAYSIA • M&A DECLINE: HOPE AMIDST THE GLOOM • INDONESIA GETS AN AMENDED MINING ACT ALB LAW AWARDS 2020 SAVE THE DATE! MALAYSIA - August 14* CHINA - September 17 JAPAN - September 24* INDONESIA - October 8 SE ASIA - October 15 KOREA - November 12 PHILIPPINES - November 20 HONG KONG - November 27

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8 Explainer

COVER STORY FEATURES BRIEFS 20 18 the feasibility of 28 3 ALB Singapore’s Malaysia Rising doing business in Talking retail The Briefing Top In-house Teams Stars 2020 Indonesia’s natural The COVID-19 2020 Young lawyers are resources sector. outbreak has added 4 Being a legal hub making great strides an extra layer of Forum for the Southeast in Malaysia’s legal Plus: complexity to China’s Asian region, industry as they - Amended Mining Law: retail industry, 8 Singapore rightfully work on various A Step Forward offering lawyers in Explainer boasts top-quality complex matters. Towards Good these companies lawyers in both the ALB profiles six Governance in yet another 9 private practice and lawyers from the Extractive Industry challenge to tackle. Deals in-house spaces. Malaysian legal General counsel at But this year, as market who have 26 retail companies 12 the impact of made an impact in Deal dip discuss how they Appointments COVID continues the industry. The coronavirus are assisting their to cast a shadow, pandemic has companies in this 14 in-house teams 24 resulted in a drop in ever-evolving market. Q&A are under even A new era of mining M&A transactions greater pressure. Indonesia recently across the Asia- 16 This year’s list ratified a long- Pacific region. League Tables celebrates lawyers anticipated bill Lawyers say that who stand out for amending the while they are still Plus: their innovation, country’s 2009 seeing deals, there - PART ONE: Highlights their leadership Mining Law. are differences in of CIETAC Guidelines qualities and the Lawyers say that both the nature of on Proceeding with value they add to the large-scale the transactions Arbitration Actively and their businesses. revisions to the as well as the deal Properly during the By Elizabeth Beattie law could improve terms and process. COVID-19 Pandemic

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – JULY 2020 1 HEAD OF LEGAL MEDIA BUSINESS, ASIA & EMERGING MARKETS Amantha Chia [email protected]

MANAGING EDITOR Ranajit Dam [email protected]

JOURNALIST Elizabeth Beattie The in-house side continues to grow stronger. [email protected]

Not too long ago, in-house was the “poor cousin” to EDITORIAL ASSISTANT private practice, seen as a safe route for those who Aparna Sai couldn’t quite cut it as external counsel. How times have [email protected]

changed. Today in-house counsel are doing increasingly COPY & WEB EDITOR significant and interesting work, and the Rowena Muniz benefits, including higher pay, better [email protected] hours and a chance to rise to the top of SENIOR DESIGNER a company, means that in-house roles John Agra are sought after like never before. The [email protected] rise of the in-house side – in both impor- TRAFFIC/CIRCULATION MANAGER tance and profile – is one of the most Rozidah Jambari significant developments in Singapore’s [email protected] legal industry. SALES MANAGERS Keeping this in mind, ALB cele- Amy Sim brates Singapore’s best in-house teams. Sales Director, SE Asia, India and Japan (65) 6870 3348 These are corporate legal departments [email protected] who are doing cutting-edge innova- Felix Cheng tive work, assisting their companies Sales Manager (852) 2843 6943 navigate an increasingly treacherous [email protected] regulatory landscape, and also being Krupa Dalal actively involved in the overall growth Sales Manager and prosperity of the business. To them, (91) 22 6189 7087 we offer our congratulations! [email protected] Jeremy Lim Finally, just a reminder that two of Sales Executive our big annual rankings and lists – the (65) 6870 3789 [email protected] RANAJIT DAM ALB Asia 40 Under 40 and ALB Asia M&A Rankings – Managing Editor, are now open for submissions, and we will shortly begin John Guo Sales Executive Asian Legal Business our research for the ALB Asia Top 50. Please reach out (86) 135 2127 6707 Thomson Reuters to Rowena Muniz at the email address listed on this [email protected] page for submission forms and other information. Romulus Tham Delegate Sales Executive (65) 6870 3035 [email protected] Steven Zhao 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 – JULY 2020 WWW.LEGALBUSINESSONLINE.COM THE BRIEFING: YOUR MONTHLY NEED-TO-KNOW

QUOTE UNQUOTE

“THE DECISION IS HONG KONG DETAILS 8% Percentage of NEW POWERS GCs who play an A BRAZEN executive role in their companies, according UNDER CHINA LAW to a study conducted ASSAULT by Gartner, even Hong Kong has released additional though 46 percent ON THE RULE OF LAW.” details of China’s new national claimed that it was security law for the former British their ideal role. Some 59 percent said that Baroness Helena Kennedy QC, director of colony, according to Reuters, saying they simply served the International Bar Association’s Human security forces had overriding as lead attorneys for Rights Institute, criticises the conviction authority to enter and search their corporations. of Philippine journalists Maria Ressa and properties for evidence and stop Reynaldo Santos Jr on retroactive cyber libel charges. people from leaving the city. Hong Kong returned to China on July 1, 1997, under a “one country, two systems” formula guaranteeing IN THE NEWS wide-ranging autonomy and freedoms not enjoyed on the mainland, including an independent WITH LAWYERS WORKING judiciary. But under China’s new FROM HOME, FIRMS PONDER legislation, crimes of secession AI platform Luminance has and sedition will be punishable by NEED TO RENT SPACE integrated with Ansarada, a up to life in prison, Reuters added, software-as-a-service information- stoking concerns of a much more The coronavirus pandemic has governance platform and authoritarian era in a city which has forced lawyers across the U.S. to AI-powered virtual data room been racked by anti-China protests work from home, leading many provider. The move is expected to for the past year. managing partners to ask why improve the due-diligence process firms are paying for all that space, for lawyers under a remote-work reported Reuters. The number of arrangement. law firms signing new or renewing leases was down 75 percent compared to the average number during that same period in 2016- 2019, real estate data company More than 70 firms in the U.S. 70 PERCENT CoStar Portfolio Strategy has have shown support for racial found. And in a recent survey of justice as protests against racism Proportion of female lawyers of colour in the 222 law firm leaders, 72 percent sweep the country. They include U.S. likely to seriously consider leaving the said they expect they will need profession, according to a study conducted by Skadden, Arps, Slate, Meagher & the American Bar Association (ABA). less office space, and 19 percent Flom, Davis Polk & Wardwell, Akin Most report feeling undervalued and said expected that drop to be by Gump and Morrison & Foerster. experiencing barriers to career advancement. more than 25 percent.

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FORUM

The pandemic has so far had a broadly negative impact on businesses across the region, but surprisingly, the period has also seen a number of law firms open in various Asian markets. Their founders say they are BOLD MOVES using this period of upheaval as a time to start afresh, establishing new operations with energy and a determination to do things differently.

YOU OPENED AT A TIME WHEN THE PANDEMIC WAS IN FULL SWING. WHAT HAS YOUR EXPERIENCE BEEN LIKE SO FAR, AND HOW MUCH HAS COVID-19 IMPACTED YOUR WORK?

SARAVANA KUMAR, partner, to be empathetic with our clients whilst we work Rosli Dahlan Saravana Partnership, Malaysia to resolve their legal concerns both with business On Feb. 20, five of us set up our law firm, Rosli partners and in court. Dahlan Saravana Partnership (RDS). We had hardly completed two weeks of practice when my partner, KEVIN BOWERS, partner, Rosli Dahlan, was tested positive for COVID-19. He bowers.law, Hong Kong went on to become the famous Patient #33 — even bowers.law opened its doors for the first time on KUMAR the country’s Prime Minister spoke of his admira- Apr. 1, slap bang in the middle of the COVID-19 tion for Rosli who after his recovery, took the role pandemic. Most other lawyers (and almost of helping other victims. I was tested positive on everyone else I know) thought I was crazy to be Mar. 4, and became Patient #53, and within days, starting a brand new business and implementing a about 15 of us tested positive and were hospitalised. new law firm business model whilst the majority of Our office was closed, and everyone was placed other Hong Kong businesses and most other Hong in quarantine in early March. Of course, we had Kong law firms were shuttered with employees our moments of despair and uncertainty, but we mostly working from home full-time or in rotation. I resumed practice on May 4 with unwavering confi- initially thought that the doomsday predictors were BOWERS dence in the Malaysian economy — and that people spot on as my personal experience of getting the are resilient and will bounce back quickly. We did mechanics and logistics of opening a new law firm not take any austerity measures, like reducing our done on my own during this period was so much staff salary or workforce, and we remain today harder than would usually have been the case. I was the highest-paying law firm in Malaysia with an a bit downcast. However, then came the up-sides: on-going recruitment campaign. Recovering from COVID-19 reenergised us, and we built a successful • the firm’s office rent (in a prime location oppo- firm which focuses on customised quality legal site the High Court) is about 40 percent less services. We are proud that we stayed positive than what it was just six to nine months ago, LUO despite some rival law firms posting viral emails which together with an initial rent-free period almost daily naming and shaming our partners is great for any start-up business; and our firm, attempting to make us look like the • my core practice areas of commercial dispute proverbial leper to be shunned and cast away. For resolution (shareholder, employment, insur- us, the COVID-19 pandemic affected all Malaysians, ance and property disputes), fraud and crisis not just a segment of society. Rather than pointing management are well-suited to the prevailing, fingers or finding faults, we are resolute to over- very challenging, business environment which come the challenges together. We took an active inevitably provokes discord and disagreements role during the consultation processes led by the between business partners and in all aspects government and proposed policies and initiatives to of business life; address the economic challenges that have arisen • the firm’s business model of charging only as a result of Malaysia’s Movement Control Order. fixed, capped and retainer fees across the board Our experience and determination enable us as firm is attractive to both corporate and individual

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clients alike as it provides them with value, certainty and a degree of shared risk - which in such tough times is an attractive proposition, especially when the model encourages legal services to be provided as quickly, efficiently and cost-effectively as possible, which is what any client wants from its lawyers; and • the absence of timesheets is very popular with job applicants.

The firm has encountered COVID-19 related difficul- ties, primarily the General Adjourned Period (GAP) in the Hong Kong Courts from Jan. 29 to May 3 and the consequential backlog, lack of face-to-face meetings, absence of international lawyers and business travellers and general business uncer- tainty, leading to the tightening of legal purse- strings. Overall, however, I can safely say that the positives of opening the firm during such a difficult period in Hong Kong and internationally have by ONE-FIFTH OF MALAYSIA LAWYERS MULL far outweighed the negatives, with the bowers.law team all pulling together in the same direction and CEASING PRACTICE DUE TO COVID working hard to make sure that we come through the challenges as unscathed and as enthusiastic Some 21 percent of Malaysia’s lawyers are contemplating about the future as we possibly can. ceasing practice or closing their law offices due to the impact of the national lockdown instituted as a response to the COVID-19 LUO LING LING, managing director, pandemic. Luo Ling Ling, Singapore A small section of the respondents also said that they I received an unusually large number of messages expected to suffer losses of more than 3 million ringgit and new client queries after announcing on ($700,000) between March and September this year. LinkedIn that I would be establishing a new firm There were some of the results of a survey conducted by — and I was truly overwhelmed. As of writing, the Bar Council Malaysia titled “The Effect of the Movement Control post has around 228,000 views and the number is Order (MCO) on Law Firm Owners of the Malaysian Bar.” still increasing. I had no idea how that happened. According to the survey, 54 percent of the 844 respondents I don’t often post on LinkedIn, so I did not expect said that they were confident that there was no need to make this. Why I am starting my practice? I love the law any changes to their law practices. However, nearly 42 percent and cannot imagine myself doing anything else. of the respondents said they hoped to continue their practice In a large firm, there are too many other kinds of by downsizing or merging. non-law administrative work or business develop- Additionally, the survey discovered that nearly 36 percent ment work which I rather not spend time on. In of respondents indicated they would experience losses of up my firm, I will be able to focus on the type of work to 50,000 ringgit between March and September this year which I like. This was not possible in a large firm while 29.5 percent expected to incur losses of between 100,001 with billing targets, where you are expected to do ringgit and 500,000 ringgit. any piece of work assigned to you. Why now? I was Also, feedback for the Malaysian government’s 260 told that it is an absolute disaster to start on my own billion ringgit ($60.8 billion) PRIHATIN Rakyat Economic now, with COVID-19 slowing down businesses. My Stimulus Package was generally negative, with the respond- boss told me that it would be like “suicide.” Also, if ents averse to taking on additional financial burdens in the I stayed at that firm until December 2020, I would form of loans.“Whether it is in the lack of work available to law receive bonuses for 2019. What then? Since I’ve firms or existing clients cancelling and terminating work and would have served another full year, I might as well requesting refunds of fees paid, the devastating shadow cast by have stayed another few months to get the bonus this pandemic will continue to loom over us for the foreseeable for 2020? That was what I told myself last year, future,” Malaysian Bar president Salim Bashir was quoted as and the year before and every other year before saying in The Star newspaper. that. I know that I am walking away from a stable The survey was conducted from Apr. 10 to Apr. 20. The income and I am forfeiting the bonus that I worked Malaysian government imposed its MCO on Mar. 18 in response so hard for, but if I don’t do it now, then when? to the COVID-19 pandemic.

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But there are many other opportu- nities for firms to modernise, including “shifting from enclosed space and formality” to create spaces that promote a sense of coaching and mentoring within the physical space of the firm, he adds. There’s a balance too when it comes to overhauling spaces and making them more open, that firms will have to navi- gate when reassessing their spaces post- COVID. There must be enclosed meeting spaces for confidentiality reasons, for example, and firms must balance the different work styles and expectations of various staff members. “Focus and concentration is super important in a legal practice and unless you are a partner with an office, this can be hard to achieve in a more open area. POST-PANDEMIC LAW FIRMS WILL BE So, we need plenty of spaces where anyone (regardless of seniority) can go to concentrate,” Salton adds. AGILE AND TECH-FORWARD, AND THEIR While lawyers grow more used to working in non-traditional spaces, it remains to be seen whether offices will OFFICES WILL REFLECT THAT respond by offering more privacy — or making sociable spaces the norm. But we are likely to see design imbibed What will the future of work look greater focus on “synergising aesthetics with greater safety considerations in like? Indeed, what will the office of the with flexibility, functionality, collabora- the future. future look like, particularly in the after- tion, and interaction.” Wang describes the pandemic as math of the pandemic? These are ques- Neil Salton, former principal of prompting law firms to rethink existing tions that law firms, among other busi- Woods Bagot Singapore and managing layouts and functionalities to ensure nesses, will likely be grappling with over director of ChangeWorq, a workplace their teams’ safety is prioritised. She also the coming months and years. And with strategy practice, assists firms with real- predicts that we are likely to see “human- COVID leaving workplaces empty for ising the type of workplace they want motivated” design post-pandemic. prolonged periods, firms using this time to create. Similarly, he has also noticed “This is where the human side of to relook at their needs and options when several ways that law firm workspaces transformation will play an important it comes to workspaces. are changing — and are likely to continue role in shaping the post-COVID work- Cecilia Wang, a Hong Kong- to evolve in the future. place, where empathy and clear commu- based director at design firm M Moser Salton, who takes a particular nication will enable firms to address Associates, says the modern legal work- interest in firms “looking to change and the emotional needs that will ulti- place will need to reflect the “agility” adapt to disruptive times,” considers law mately impact the employee experience, of technology used by clients, staff and firms “interesting examples,” noting that whether it be in the physical workplace, partners in a post-COVID world. they have a variety of needs and require- split between the office and home, or Wang, who works with law firm ments they must balance. entirely remote,” Wang says. clients, has watched as expectations “Some law firms are already “In the end, workplaces will need to and needs have shifted over time, with changing away from the traditional be designed with the human needs at spaces for collaboration and work-life partner office and separate desk-based their heart in such a way that is adapt- balance growing critical. environment for juniors towards a more able enough to accommodate future “Moving away from traditionally layered space strategy where there are drastic changes in both their business cellular and status-symbolising spaces, spaces for client meetings, layered with landscape and the world. As law firms law firms are increasingly leaning a mix of social, informal meeting areas look to reassess their objectives and towards more agile workplaces,” says for lawyers and clients,” Salton tells outlook, their new workplace will adjust Wang, adding that she has noticed a ALB. accordingly,” she adds.

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U.S. TECH GIANTS FACE HARD CHOICES UNDER HONG KONG’S NEW SECURITY LAW

(Reuters) U.S. tech giants face a reck- in Hong Kong in 2010, last year opened Other U.S. internet platforms are oning over how Hong Kong’s security a big new office in the city. also rich with content that is banned in law will reshape their businesses, with It sells more than $5 billion a year mainland China and may now be judged their suspension of processing govern- worth of ad space to Chinese businesses illegal in Hong Kong. ment requests for user data a stopgap and government agencies looking to U.S. video streaming site Netflix, measure as they weigh options, people promote messages abroad, Reuters for example, carries “Joshua: Teenager close to the industry say. reported in January. That makes China vs. Superpower”, a 2017 documentary While Hong Kong is not a signifi- Facebook’s biggest country for revenue on activist Joshua Wong whose books cant market for firms such as Facebook, after the United States. were removed from Hong Kong public Google and Twitter, they have used it as The U.S. internet firms are no stran- libraries last week. a perch to reach deep-pocketed adver- gers to governments demands regarding “Ten Years”, a 2015 film that has tisers in mainland China, where many content and user information, and gener- been criticised by Chinese state media of their services are blocked. But the ally say they are bound by local laws. for portraying a dystopian future Hong companies are now in the cross hairs of The companies have often used a Kong under Chinese Communist Party a national security law that gives China technique known as “geo-blocking” to control, is also available on its platform. authority to demand that they turn restrict content in a particular country Netflix declined to comment. over user data or censor content seen without removing it altogether. Google’s YouTube is a popular to violate the law - even when posted But the sweeping language of Hong platform for critics of Beijing. New York- from abroad. Kong’s new law could mean such meas- based fugitive tycoon Guo Wengui has “These companies have to totally ures won’t be enough. Authorities will no regularly voiced support for Hong Kong reassess the liability of having a presence longer need to get court orders before protesters in his videos. Google did not in Hong Kong,” Charles Mok, a legislator requesting assistance or information, immediately respond to a request for who represents the technology industry analysts said. comment. in Hong Kong, told Reuters. Requests for data about overseas None of these companies has yet If they refuse to cooperate with users would put the companies in an said how they will handle requests from government requests, he said, authori- especially tough spot. Hong Kong to block or remove content, ties “could go after them and ake them “It’s a global law ... if they comply and the risk of being caught in political to court and fine them, or imprison their with national security law in Hong Kong crossfire looms large. principals in Hong Kong”. then there is the problem that they may “The foreign content players have to Facebook, Google and Twitter have violate laws in other countries,” said rethink what they display in Hong Kong,” suspended processing government Francis Fong Po-kiu, honorary president said Duncan Clark, chairman at consul- requests for user data in Hong Kong, of Hong Kong’s Information Technology tancy BDA China. they said, following China’s imposition Federation. “The downside is very big if they get of the new national security law on the While the U.S. social media services U.S. senators on their backs for accom- semi-autonomous city. are blocked in mainland China, they have modating. Any move they make will be Facebook, which started operating operated freely in Hong Kong. heavily scrutinized.”

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EXPLAINER HKEX LAUNCHES GREEN FINANCE PLATFORM

Last year, green bond issuances in sustainable finance may develop WHAT OPPORTUNITIES IS the Asia-Pacific region hit record levels, generally, globally and in partic- STAGE LIKELY TO CREATE raising $18.89 billion. Of that Mainland ular within Asia,” Mark Uhrynuk, FOR LAWYERS? China’s green bond market accounted a corporate partner at Mayer As awareness and interest in for $8.13 billion, according to the Hong Brown, tells Asian Legal Business. green products gains traction, Kong Stock Exchange (HKEX). So when “The initial phase of STAGE and best practices grow more HKEX recently announced that it would will be a website that acts as standardised and guidelines are be launching its Sustainable and Green a source of Data and informa- published, STAGE will provide Exchange (STAGE) platform, it sent tion relating to green and social lawyers in Asia with geograph- a message that Hong Kong plans to bonds, and on the ESG related ically relevant information and cement its position as a green finance products that may be traded on updates — as well as a resource hub. STAGE, which is described as the the stock exchange,” Uhrynuk to direct their clients towards. first of its kind, will be a centralised says, adding that this will later “There could be opportuni- source for Asia-focused sustainable and information on bonds and other ties for lawyers to advise clients green finance information. But while ESG-related products traded on on whether their bonds comply, hopes are high, the platform is still in the Hong Kong Exchange. or how their bonds can comply, its early days. HKEX has also discussed with the applicable international STAGE becoming a place to host standard used in a certain green PRACTICALLY SPEAKING, information that will help inves- bond issuance (which is a require- HOW WILL STAGE tors understand the basics, as ment to be displayed on STAGE),” FUNCTION? well as flagging potential issues says Uhrynuk. In its current form, STAGE is an or challenges to look out for. But as STAGE develops, there online information platform with “One of the things that is also the possibility lawyers will sustainable and green finance STAGE will do — it’s not there be able to use the platform for Asia data and information links yet — will be to help investors due-diligence purposes, as well catering towards issuers and with respect to due diligence, as to provide data. investors. But all eyes are on later and on selecting investments,” “As this platform evolves, it this year, when HKEX plans to Uhrynuk says, but adds that at could go beyond just listing what launch its repository of detailed present there’s little informa- bonds are available, but also data. tion available about this aspect provide data and tools for other “I think there are hopes of the platform or when it will be industry participants — private and dreams concerning how rolled out. However, he believes equity asset managers, inves- this might evolve, and how that “there’s a lot more to come”. tors, as they look to adopt best

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practices on making investment with the Securities and Futures “Green bond issuance in the decisions that are supportive of Commission released a joint region has been active. There’s no broader ESG initiatives,” says statement on its newly estab- doubt there’s been an uptick in Uhrynuk. lished Green and Sustainable activity over the past few years,” Finance Cross-Agency Steering says Uhrynuk about the latest WHAT DOES THE Group. Among its various developments. PLATFORM MEAN FOR focuses, the group aims to But beyond this, STAGE also INVESTORS IN HONG KONG? examine policy and regulatory sends a message about how Recently in Hong Kong, growing issues around green and sustain- the finance hub plans to posi- interest in green and sustain- able finance. tion itself. “STAGE represents a able finance has led to proac- But there are likely more clear indication that Hong Kong tive shows of commitment by developments on the horizon for is really trying to take a leader- financial oversight bodies within Hong Kong as regulations and ship role in devoting the time and the market. In May, the Hong resources ease the investment resources, to lead the Asia region Kong Monetary Authority along process. on these issues,” he adds.

DEALS

$5 BLN $3.9 BLN $2.7 BLN $2.14 BLN Cathay Pacific’s JD.com’s secondary NetEase’s global Bangkok Bank’s recapitalisation plan listing offering of new acquisition of Deal Type: ECM, Loan Deal Type: IPO ordinary shares Bank Permata Firms: Clifford Chance; Firms: Clifford Chance; Deal Type: IPO Deal Type: M&A DLA Piper; Linklaters Shihui Partners; Firms: Davis Polk & Firms: HHP Law Firm Jurisdiction: Hong Kong Skadden, Arps, Slate, Wardwell; JunHe; (Baker McKenzie); Meagher & Flom Skadden, Arps, Slate, Hiswara Bunjamin & Jurisdictions: China, Meagher & Flom; Tandjung; White & Case Hong Kong Zhong Lun Law Firm Jurisdictions: Indonesia, Jurisdictions: China, Thailand, UK Hong Kong

$1.2 BLN $1.2 BLN $993 MLN $752 MLN Alibaba’s acquisition of Mubadala Investment’s Kotak Mahindra Bank’s Abu Dhabi Investment stake in Perennial acquisition of stake in qualified institutional Authority’s acquisition Shenton Holdings Jio Platforms placement of stake in Jio Platforms Deal Type: M&A, Deal Type: M&A Firms: AZB & Partners; Deal Type: M&A Project Financing Firms: AZB & Partners; Clifford Chance; Firms: AZB & Partners; Firm: Allen & Gledhill Davis Polk & Wardwell; Cyril Amarchand Davis Polk & Wardwell; Jurisdictions: China, Nishith Desai Associates; Mangaldas; Shardul Amarchand Singapore Shardul Amarchand S&R Associates Mangaldas & Co. Mangaldas & Co.; Jurisdictions: India, Jurisdictions: India, UAE Skadden, Arps, Slate, Singapore Meagher & Flom Jurisdictions: India, UAE

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PART ONE: Highlights of CIETAC Guidelines on Proceeding with Arbitration Actively and Properly during the COVID-19 Pandemic

Today, COVID-19 has already spread across proceedings.6 Service by courier is a more than 200 countries and regions in the default service of process in CIETAC world. The number of the confirmed cases arbitration. Usually, domestic mails can exceeds 4 million at the time of writing, and be delivered by courier within 3 days, it continues to rise globally.1 On 11 March while international mails can be delivered 2020, the World Health Organization declared by courier within 7 days, depending on its COVID-19 a pandemic.2 distance to Beijing.

Tribunals, parties and counsels are facing Yet service by courier are impeded by the greater challenges to mitigate the adverse COVID-19 pandemic. Many enterprises effects of the COVID-19 pandemic on arbitration Wang Chengjie have stopped working. In some cases, such as delay of arbitral proceedings and Vice Chairman & Secretary General courier service companies even stopped obstacles to initiate new arbitration cases. [email protected] delivering mails, and no recipients can be expected to be present at the place In order to proceed with arbitration actively Wang Bihan of business which is probably the only and properly, protect the parties’ legitimate Case Manager mailing address the Claimant can provide. interests, and uphold social fairness and [email protected] Additionally, the control and cancella- justice, on 28 April 2020, China International tion of international flights on account Economic and Trade Arbitration Commission CIETAC of epidemic prevention unavoidably (“CIETAC”) issues its Guidelines on Proceeding 6/F, CCOIC Building, prolongs the delivery of international with Arbitration Actively and Properly during 2 Huapichang Hutong, courier. The time spent for delivery has the COVID-19 Pandemic (Trial) (“Guidelines”), Xicheng District, Beijing 100035 multiplied, resulted in severe delay of the providing detailed guidance to tribunals, T: 010 8221 7788, 6464 6688 arbitral proceedings. parties and counsels to conduct arbitration F: 010 8221 7766, 6464 3500 effectively during the COVID-19 pandemic. E: [email protected] C. Oral Hearing W: www.cietac.org Oral hearings are mandatory in virtually This article will firstly elaborate on the all international arbitration cases.7 Cases challenges in CIETAC arbitration proceedings managed by CIETAC normally need to be during the pandemic. Then, it will examine limit the spread of the virus, but also disrupt examined with oral hearings conducted at the Guidelines by analyzing its legal status international arbitration, including CIETAC CIETAC hearing rooms with the physical and fundamental principles, and the specific arbitration, in every regard, which can be presence of all the participants. However, measures provided therein. briefly summarized from the following aspects. subject to travel restrictions and social distancing policy, the COVID-19 pandemic I. Challenges brought by the COVID-19 A. Case Filing made it impossible to arrange physical Pandemic to CIETAC Arbitration Previously, some parties prefer to submit oral hearings for a certain period. Actually, In 2019, CIETAC accepted 3,333 new their application for arbitration on site CIETAC and its sub-commissions/centers arbitration cases, including 2,716 domestic to CIETAC. CIETAC could receive dozens cancelled 360 oral hearings in total from cases and 617 foreign-related ones, of which of parties at most for case filing service February to April in 2020. 66 were between non-Chinese parties. The at the same time. However, ever since total amount in dispute was about RMB 122 the outbreak of the COVID-19, on-site D. Appraisal billion (around USD 17.25 billion), marking a submission was strictly restricted and the Appraisal is considered to be complicated, record high in its history. The parties involved office facilities of CIETAC were not open time-consuming with a potential high were from 72 countries and regions. There were to the public.5 All these measures prevent cost. With multiple parties to participate, 3,146 cases concluded in 2019.3 By 7 May 2020, CIETAC from providing on-site case filing the same dilemma is present in the the number of cases in process was 2,539. services to satisfy the parties’ need. appraisal proceedings, which has resulted in the delay of arbitral proceedings in a With the outbreak of the COVID-19 pandemic, B. Service of Documents certain number of arbitration cases. measures have been taken to contain the Service of documents can be of consider- spread of the virus worldwide, which covers able importance in arbitration, especially The above-mentioned aspects only cover some almost all the places that the arbitrators and the service of the request for arbitration of the disruption caused by the COVID-19 parties live in.4 Anti-epidemic measures such upon the Respondent, which has a direct pandemic. Given the above, traditional practice as lockdown, self-isolating, social distancing connection to the subsequent annulment, is not sufficient during this special period, and and travel restrictions not only effectively non-recognition or non-enforcement guidance is needed to deal with the challenges.

10 ASIAN LEGAL BUSINESS – JULY 2020 WWW.LEGALBUSINESSONLINE.COM II. Legal Status and Fundamental Principles in any way it deems appropriate.10 The the administrating arbitration institution, The Guidelines are adopted on the basis of the Guidelines further emphasize that, to assist the tribunals, parties and existing CIETAC Arbitration Rules (“Arbitration while taking such measures, the arbitral counsels by all means to proceed with Rules”). tribunal still bears the responsibility to the arbitration efficiently. proceed with the arbitration efficiently, A. Legal Status which is stipulated in the Arbitration Rules CIETAC, therefore, is expected to act The Guidelines are not binding, and do not and is not changed by the pandemic. promptly to communicate with the arbitral constitute a part of the Arbitration Rules.8 tribunals and the parties, and facilitate The Guidelines are not legal provisions Moreover, the duties of independence the exchange of opinions regarding the and do not override any applicable and impartiality are inherent and vital arrangement of arbitration proceedings. national law or arbitration rules chosen aspects of arbitrator’s adjudicatory role,11 Where it is necessary, CIETAC shall by the parties. The arbitral tribunal and which are expressly set forth in Article 35 provide the arbitral tribunals, parties and the parties may follow the Guidelines of the Arbitration Rules. The Guidelines counsels services and guarantee for the subject to any applicable mandatory further strengthen the importance arbitration to be conducted in an efficient rules, in their discretion or agreement, thereof, according to which, no matter manner. to deal with obstacles that may possibly what measures are taken, the arbitral appear in arbitral proceedings during the tribunal shall make sure that the parties iv. Techniques applied shall be COVID-19 pandemic. are given full opportunity to present the of functional-equivalence and case, so as to protect the arbitral awards technology-neutrality. The Guidelines are temporarily in force.9 against potential challenges. The adverse consequences of the The Guidelines are tailored to facilitate COVID-19 pandemic make it more CIETAC arbitration during the COVID-19 ii. Parties shall participate in the arbitral critical than ever that tribunals, parties, pandemic, which are time-based in proceedings in good faith. and counsels give due consideration to nature. The Guidelines are effective during The Guidelines require the parties to case management techniques designed the COVID-19 pandemic, and will cease to participate in the arbitral proceedings in to make arbitration fair and efficient.14 have effect when the pandemic is over. good faith in accordance with Article 9 In light of this, techniques with higher of the Arbitration Rules. The Guidelines efficiency such as online filing system, B. Fundamental Principles further illustrate the “good faith” principle electronic service of documents, virtual It is of vital importance that the basic under the background of the pandemic, hearings are introduced to mitigate the principles of the Arbitration Rules are which request the parties to “try their best effects. However, techniques are merely upheld. By taking effective measures to mitigate the effects of the pandemic on mechanisms to facilitate the arbitral outlined in the Guidelines, which strictly the arbitral proceedings and avoid abuse process, the application of which shall follow the basic principles embodied in of rights, and shall not pursue unreason- only be considered as a way to cater the current Arbitration Rules, arbitral able and unfair procedural rights with for “functional equivalence” between tribunals, parties and CIETAC are able the pandemic as an excuse or impede physical means and electronic means.15 to actively proceed with arbitration to the the arbitral proceedings in bad faith.”12 greatest extent possible. No matter what techniques are applied, it iii. Arbitration Institution shall provide is essential to assure that the utilization i. Arbitral Tribunal shall proceed with necessary service and guarantee. thereof is neutral so as to protect the arbitration fairly and efficiently. Arbitration institution shall guarantee the legitimate rights and interests of the The Guidelines lay emphasis on the stability and functioning of arbitration parties in accordance with the applicable tribunal’s extensive procedural discretion proceedings for the foreseeable future,13 law. granted by Article 35.1 of the Arbitration which plays an important role to facilitate Rules, which allows the arbitral tribunal the arbitral proceedings. To be more To be continued. Part two will be published in to conduct the arbitration proceedings specific, it is necessary for CIETAC, as ALB Asia August 2020 issue.

1 Available at https://covid19.who.int/, last visited on 12 May 2020. 2 Available at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020, last visited on 12 May 2020. 3 See CIETAC 2019 Work Report, available at http://www.cietac.org.cn/index.php?m=Article&a=show&id=16872&l=en, last visited on 12 May 2020. 4 Ahmed Bakry, The COVID-19 Crisis and Investment Arbitration: A Reflection from the Developing Countries, Kluwer Arbitration Blog, April 21, 2020, available at http:// arbitrationblog.kluwerarbitration.com/2020/04/21/the-covid-19-crisis-and-investment-arbitration-a-reflection-from-the-developing-countries/, last visited on 12 May 2020. 5 See Urgent Notice on Work Arrangements during the Prevention and Control of the COVID-19, available at http://www.cietac.org.cn/index. php?m=Article&a=show&id=16453, last visited on 12 May 2020. 6 Gary Born, International Commercial Arbitration (Second Edition), 2nd edition, Chapter 15, pp. 2220-2221. 7 Supra note 6, p. 2264. 8 Article 3 of the Guidelines. 9 Ibid. 10 Article 35.1 of the Arbitration Rules provides that the arbitral tribunal shall examine the case in any way it deems appropriate unless otherwise agreed by the parties. Under all circumstances, the arbitral tribunal shall act impartially and fairly and shall afford a reasonable opportunity to both parties to present their case. 11 Supra note 6, p. 1988. 12 Article 1.2 of the Guidelines. 13 W. Melis, Function and Responsibility of Arbitral Institutions, vol. 13 Comparative Law Yearbook of International Business 107, 109 (1991). 14 ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, § 6. 15 Peter Binder, International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions, 4th edition, p. 643.

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APPOINTMENTS NISHIMURA, ANDERSON MORI ENTER INTO SINGAPORE ALLIANCES Japanese Big Four firms Nishimura & Asahi and Anderson Mori & Tomotsune have entered into formal law alliances (FLAs) in Singapore with local practices, becoming the first YK CHAN JONG YOUL CHOI YONG HO CHOI firms from the North Asian country LEAVING LEAVING LEAVING Paul Hastings Financial Supervisory Service Financial Supervisory Service to do so. JOINING JOINING JOINING Nishimura, Japan’s largest firm Hill Dickinson Yoon & Yang Yoon & Yang by headcount, inked an FLA agree- PRACTICE PRACTICE PRACTICE ment with Bayfront Law. The arrange- Capital Markets Banking and Finance Banking and Finance ment will allow the Japanese firm’s LOCATION LOCATION LOCATION lawyers who are qualified in Singapore Hong Kong Seoul Seoul — Masato Yamanaka, Masataka Sato, Yuji Senda and Tomoro Yoshimoto — to practice under the alliance name Nishimura & Asahi-Bayfront-Law Alliance. Bayfront Law began operations in 2017 and has twelve lawyers, including six directors. It is led by managing director Kesavan Nair. Nishimura & Asahi’s Singapore office was established in 2012. It is HWAN JUN HEO LEX KUO DEREK POON led by co-representatives Yamanaka LEAVING LEAVING LEAVING and Shintaro Uno. The firm has twelve Financial Supervisory Service Latham & Watkins Kirkland & Ellis lawyers, of whom eight are Japanese. JOINING JOINING JOINING Yoon & Yang Baker McKenzie Baker McKenzie Dominant in its domestic market, PRACTICE PRACTICE PRACTICE Nishimura & Asahi has launched Banking and Finance Media and Entertainment Private Equity offices and alliances in Vietnam, LOCATION LOCATION LOCATION Thailand, Indonesia, Myanmar, Seoul Hong Kong Hong Kong Taiwan, China and New York. This year, the firm became the first Japan Big Four firm to establish offices in Europe. Meanwhile, Anderson Mori & Tomotsune entered into an FLA with DOP Law Corporation. This comes some months after AMT estab- lished a presence in Hong Kong with the opening an associated office – Nakamura & Associates – in that city. DOP, formerly known as David AMEET KAUR PURBA JADE TANG LIANG (ALEX) TAO Ong & Partners, was established in LEAVING LEAVING LEAVING 1996. It currently has seven lawyers, Shearn Delamore & Co Oldham Li & Nie Allen & Overy including managing director David JOINING JOINING JOINING Ong. LAW Partnership Hugill & Ip Milbank PRACTICE PRACTICE PRACTICE AMT’s Singapore office, which Intellectual Property Corporate, Commercial Capital Markets was established in 2013, presently LOCATION LOCATION LOCATION has 29 partners. Kuala Lumpur Hong Kong Hong Kong

12 ASIAN LEGAL BUSINESS – JULY 2020 WWW.LEGALBUSINESSONLINE.COM BRIEFS COVID SPARKING SOMETHING OF A BUSINESS CULTURE RETHINK IN JAPAN

Could the coronavirus pandemic push Japan — a country known for its reliance on fax machines and hand- People wearing protective masks make their way during rush hour on the first working day after the Golden Week holiday amid written resumes — to gravitate to a new, the coronavirus disease (COVID-19) outbreak, at Shinagawa station in Tokyo, Japan, May 7,2020. REUTERS/Kim Kyung-Hoon more digital way of working? Over the past few months, global work culture has been drastically reshaped to adapt meeting has to be face-to-face and it is firms, switching to remote work has been during the pandemic, creating quirks almost rude not to meet or visit in person a fairly seamless experience, helped in along the way. For many businesses, when you want to talk about some- many ways by their companies prioriti- everything meetings to hiring and firing thing very serious. For some, that has sation of technology. has been carried out online. continued even through the COVID-19 “Everybody has laptops provided In Japan, lawyers describe there situation,” Yamada adds. by the company and that laptop has a being something of a divide in the work- George Gibson, head of Tokyo at built-in camera and if you just click on force between those adapting to working Norton Rose Fulbright, notes that in Teams, Skype, WebEx and it automati- flexibly and those expected to carry on many cases several businesses, “espe- cally starts — and we have IT support,” like they did before the pandemic struck. cially SMEs, were not prepared to have Yamada says. But this is a country rooted in tradition. their employees work remotely for an While many Japanese law firms may For example, hanko seals — similar to extended period because it was contrary be considered large within the domestic company chops in Hong Kong — are to traditional business practices in market, some lack infrastructure Yamada a critical step in the business process, Japan.” says, adding that the ones that were able used to officialise documents. They are Additionally, Japan’s reputation for to transform completely were those with also deeply ingrained within Japanese high levels of customer service feeds into infrastructure already place. culture, their use stemming back some client expectations, Gibson notes. Being “The law firms that are remaining 2,000 years. a professional service provider, “we in the physical spaces, offices, they Likewise, face-to-face meetings have a strong belief that to advise and haven’t invested in all the [necessary] have long been considered a non-nego- support our clients effectively, we have technology, so it’s very difficult for them tiable for many traditional companies, to be able to meet in-person and often to work from home without that infra- but within some offices, COVID-19 has at short notice,” he says, but for engage- structure,” Yamada says. triggered reflection around this previ- ments before the lockdown “the shift to Gibson tells ALB that while many ously unquestioned cornerstone of busi- remote working was not as disruptive as workers were unprepared, the COVID-19 ness relationships. initially imagined.” pandemic has forced many industries to “Japanese people definitely do face- But there have been some chal- try out work-from-home arrangements to-face meetings,” says Kaori Yamada, lenges. “Building new connections and regardless. a competition and trade partner at maintaining relationships in Japan is “While challenging in the short Freshfields Bruckhaus Deringer’s Tokyo an iterative process, with staff rotations term, remote working is certainly gaining office. “In Europe where the business occurring on or about Apr. 1 in most large acceptance and is expected to become centres are spread out across the region, corporations, so making courtesy visits or part of Japan’s work culture sooner than people tend to do things over the phone introductions by online methods is not as anticipated. We strongly support and or through email, just to get things done, effective as inviting a client to a coffee, embrace innovation, and look forward but in Japan, most of the businesses are lunch or dinner, which is simply not an to supporting, and adjusting and growing focused in Tokyo.” option at the moment,” Gibson says. with our clients in their transitions to “There is a notion that a proper For both Gibson and Yamada’s increased online working,” Gibson says.

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Q&A

Big Four Singapore firm Drew & Napier has undergone something of a metamorphosis over the past year, with lateral hires, the setting up of a regional network, and a ‘WE INTEND TO KEEP greater emphasis on technology. CEO Cavinder Bull SC talks to Asian Legal Business about the changes, and MOVING FORWARD’ shares plans for what’s ahead. ALB: The past year has seen the require at a very late stage in their deci- firm embrace a new direction. Can sion-making process. By collaborating you take us through some of the key with Vanda Global, we hope to engage developments? with a wider group of businesses at an BULL: As chief executive officer, I aim early stage of their business cycle, to to grow the firm both in size as well as better understand their legal require- capability. This growth is driven by our ments, and be able to efficiently offer a clients’ needs; they want us to do more full suite of legal services to these busi- for them, not just in Singapore but also nesses. By engaging with these busi- in the region. As part of this vision, we nesses in partnership with Vanda Global, added seven people to equity last year. we hope to become their legal advisers Of these, three were home-grown Drew of choice and expand our corporate prac- & Napier lawyers who were promoted. tice across various sectors, including Three more were former Drew & Napier CAVINDER BULL SC technology, fintech, healthcare and life lawyers who came home, and one was a sciences, regulatory and capital markets. lateral hire who I had been working with on various matters for the last four years. of which shares our vision to provide ALB: COVID-19 has made planning Amongst these are a senior counsel, top-quality legal work. The idea is a more challenging, but what’s your one of the top tax lawyers in town, one simple one. We want to be able to help vision for the firm for the coming of the most sought-after construction clients in cross-border situations, but months? lawyers, and the general counsel of we want to do that whilst still working BULL: The COVID-19 pandemic has Ethereum Foundation. We have added with some of the best legal minds in the posed challenges. However, we are an oil and gas capability, strengthened region; hence the vision of developing a incredibly fortunate that we invested in our construction law practice, grown network of “blue chip” law firms. This is a significant IT upgrade across the firm our tax and trusts group, added crypto- very much just the beginning. We intend last year and this has paid dividends currency to our offerings and launched to grow this “firm of firms” to include during this trying time. It has enabled DrewTech, a technology law practice. We premium law practices from several our lawyers to be much more produc- are intent on making Drew & Napier a other jurisdictions. tive than otherwise. My short-term goals platform for all our lawyers to be able to as CEO have been quite simple: (1) we fulfil their professional ambitions. That ALB: Drew recently entered into a need to look after everyone in Drew: will attract and keep talent, to the benefit collaboration with financial advisory lawyer, support staff, trainee; (2) we of our clients. firm Vanda Global. How does it fit in also have to look after our clients by with Drew’s growth strategy in the near maintaining the quality of our work for ALB: As part of its regional growth term? them; and (3) we have to continue with plans, the firm set up Drew Network BULL: The growth strategy of Drew & our growth vision regardless of the times. Asia (DNA). Can you talk about the Napier includes, among other things, By way of example, so far this year we plans for this network? the strategic collaboration with Vanda launched DNA and Drew & Napier’s Data BULL: In March this year, we launched Global. Our corporate clients are in Protection, Privacy and Cybersecurity DNA, a network of premium law firms various stages of their business cycles, Academy, both during the pandemic. We which aims to provide clients with seam- such as the start-up phase, capital and also launched a CSR-service platform, less service for multi-jurisdictional legal fundraising phase, growth and expan- DrewCare, which provides a full suite of matters. Joining us in DNA are Shearn sion through mergers and acquisitions, legal and corporate governance advi- Delamore & Co. from Malaysia and and even looking to list on an exchange. sory for the philanthropic endeavours Makarim & Taira S. from Indonesia, well In many cases, businesses only consider of business corporations. God willing, known and long-established firms, each the type of legal support that they we intend to keep moving forward.

14 ASIAN LEGAL BUSINESS – JULY 2020 WWW.LEGALBUSINESSONLINE.COM BRIEFS

the big international law firm, to the local law firm,” says Bhinder, adding AS EVERSHEDS AND HARRY ELIAS SPLIT, ALLIANCES IN that if Singapore lawyers are only given the “Singapore-centric portion of the SINGAPORE ARE COMING UNDER SCANNER deal,” they are missing out on the whole picture. Eversheds Sutherland and Corporate Counsel Association, tells ALB “That trend that I’ve noticed is Singapore’s Harry Elias Partnership that local firms are being more strategic Singapore lawyers in these sorts of joint recently announced that they were when considering alliances. ventures want more,” he adds. ending their three-year merger with a “I think there is a wider conversation The way the firms work together also joint media release. The statement said going on about what the value propo- trickles into matters such as billing and the firms were parting on “good terms,” sition of that international relationship client experience, says Yadav, adding but those watching on the sidelines in should be,” Yadav says. that an international firm’s commitment Singapore have questioned why the The motivations of why Singaporean to the market, as well as its investment arrangement didn’t work out, suggesting firms are entering into these tie-ups in Singaporean leadership and talent, is that the split is symbolic of changing are also being examined more closely. another barometer of the depth of the expectations in the highly competitive Whether the arrangement will result alliance. market. in genuine collaboration, or whether In this case, “there was a lot of Speaking about what led to the the partnership is motivated purely by potential with the Eversheds brand, two firms parting ways, Stephen gaining an international brand name, are because they’ve got Eversheds Agile or Kitts, managing partner for Eversheds among the questions local firms should Eversheds consulting. I don’t think the Sutherland in Asia tells ALB: “Obviously ask, Yadav believes. Singapore firm really took advantage of Eversheds Sutherland had some Where it can go wrong is when this value proposition. I sensed there was successes during the merger, but expectations don’t quite meet reality. a cultural mismatch,” he notes. Philip (Fong, ex-managing partner of Yadav adds the firm’s D&I efforts Eversheds Harry Elias) and I agreed it will also reveal whether there is an align- was better we part ways.” ment of values. “When I look back on my time as a “There must be better integration. transactional M&A partner, we always The firms that are doing well are not said the hard work with mergers began the firms that have simply parachuted once the ink had dried,” he adds, noting talent into Asia,” suggests Yadav, who “successful integration and alignment says local firms need to carefully weigh is the key to success. After that, it’s all up the partnership they are considering about implementation.” entering into. The announcement comes a “The question I would ask about few months after Taylor Wessing Eversheds is: Were they really committed and RHTLaw ended their eight-year to Singapore?” he adds. association. Eager to put this question to rest, Tie-ups between local and inter- “I think Singapore lawyers are Kitts tells ALB the firm’s stance in no national law firms in Singapore are hungry,” says Baldev Bhinder, managing uncertain terms. now being increasingly scrutinised, director of Blackstone & Gold, an energy “Eversheds Sutherland is committed and the stakes are growing ever higher. and commodities-focused law firm in to Singapore because it is the legal, Successful arrangements must marry Singapore. financial and business hub in Southeast together the processes and work of two “They’re globalised lawyers. There Asia and the regional headquarters for different businesses, while managing are lawyers who studied in the UK and a number of our global key clients. We expectations on both sides. The check- then came back to practice in Singapore. are targeting opportunities to work for list for firms entering into these arrange- They understand global businesses and them on a number of major transactions ments is long — from considerations they want to be part of a global business,” and disputes,” he says. such as cultural fit and compatibility, he says of the attraction of entering into “Mergers are challenging at the to client experience. a joint venture with a global firm. best of times and success relies upon It remains to be seen whether the “But where they might get slightly the long-term commitment of resources, Eversheds-Harry Elias split will dent disillusioned,” Bhinder says, is when they time and, most importantly, goodwill. enthusiasm when it comes to such see that work for Singapore lawyers can Some really good progress was made arrangements, but Dharmendra Yadav, be “very limited.” in Singapore in the period immediately consultant at Alpha Creates and a “The whole point of the joint venture following the merger, when enthusiasm former vice-president of the Singapore must be the transfer of knowledge from carried the day,” he adds.

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NORTH ASIA AND SOUTHEAST ASIA/SOUTH ASIA LEAGUE TABLES

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

Value Market Value Market Rank Legal Advisor ($MLN) Deals Share Rank Legal Advisor ($MLN) Deals Share 1 Fangda Partners 21,120.9 49 7.1 1 Morgan Stanley 20,713.3 25 6.9

2 Mori Hamada & Matsumoto 14,874.8 52 5.0 2 Nomura 14,531.0 38 4.9 3 Davis Polk & Wardwell 14,616.2 9 4.9 3 Deloitte 13,098.4 60 4.4 4 Kirkland & Ellis 11,305.6 17 3.8 4 Goldman Sachs & Co 12,867.8 13 4.3 5 Nagashima Ohno & Tsunematsu 9,522.8 46 3.2 5 China International Capital Co 11,167.6 18 3.7 6 Skadden 9,225.5 12 3.1 6 HSBC Holdings PLC 10,699.1 8 3.6 7 Kim & Chang 8,760.7 60 2.9 7 Somerley 8,478.3 17 2.8 8 Han Kun Law Offices 8,118.3 5 2.7 8 CITIC 7,635.5 53 2.6 9 Anderson Mori & Tomotsune 7,908.7 25 2.6 9 Citi 7,209.1 11 2.4 10 Weil Gotshal & Manges 7,611.1 3 2.5 10 Houlihan Lokey (China) Ltd 6,910.2 3 2.3

(*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. 373.8 354.0 324.7 340 4,000 268.4 279.9 280.3 279.0 253.0 243.8 256.2 243.7 254.6 248.0 218.9 229.7 219.6 197.6 3,000 240 200.6 191.5 168.0 173.9 159.4178.1 149.7142.8 138.6155.1 2,000 115.2123.1 140 93.5 1,000

Rank Value US$ Billion 40 0 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 3Q 20

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

Value Market Value Market Rank Legal Advisor ($MLN) Deals Share Rank Legal Advisor ($MLN) Deals Share 1 Freshfields Bruckhaus Deringer 13,405.5 7 12.5 1 JP Morgan 21,532.9 11 20.0

2 Allen & Overy 12,667.7 11 11.8 2 Credit Suisse 15,797.4 9 14.7 3 Herbert Smith Freehills 11,818.3 8 11.0 3 Goldman Sachs & Co 15,796.1 8 14.7 4 AZB & Partners 10,850.0 55 10.1 4 UBS 11,618.4 5 10.8 5 Linklaters 10,600.1 2 9.9 5 Barclays 10,739.4 3 10.0 6 Davis Polk & Wardwell 9,336.6 3 8.7 6 Greenhill & Co, LLC 10,600.4 3 9.9 7 Cyril Amarchand Mangaldas 9,299.5 47 8.7 7 Morgan Stanley 9,380.3 5 8.7 8 Allen & Gledhill 9,248.7 13 8.6 8 Deloitte 8,996.3 12 8.4 9 WongPartnership LLP 8,329.6 15 7.8 9 DBS Group Holdings 8,695.8 5 8.1 10 Hogan Lovells 7,370.8 7 6.9 10 BofA Securities Inc 7,017.7 6 6.5

(*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 Southeast Asia / South Asia Involvement Announced M&A Activity - Quarterly Trend*

Series1 Series2

210 1,600 of Transactions No. 176.7 1,400 160 1,200 118.0 1,000 110 84.8 86.1 800 77.3 79.9 74.5 75.2 82.9 75.5 64.0 65.3 68.4 73.6 70.3 73.1 73.6 65.9 70.8 600 53.0 53.6 60 39.1 44.5 47.5 42.1 46.7 41.8 48.4 44.6 400 25.9 200

Rank Value US$ Billion 10 0 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 3Q 20

*League tables, quarterly trends, and deal lists 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: China, Hong Kong, Japan, South Korea, Taiwan; SOUTHEAST ASIA: Singapore, Malaysia, Philippines, Thailand, Vietnam, Brunei, Cambodia, Indonesia, Laos, Myanmar, Timor-Leste; SOUTH ASIA: India, Afganistan, Bangladesh, Bhutan, Maldives, Nepal, Pakistan, Sri Lanka. Data accurate as of 7 July 2020.

16 ASIAN LEGAL BUSINESS – JULY 2020 WWW.LEGALBUSINESSONLINE.COM VIRTUAL MASTERCLASS Ken Adams Drafting Clearer Contracts 30 & 31 July 2020 - 2-Part Webinar 2.00pm to 5.00pm (Dubai time) GMT +4 | 3.30pm to 6.30pm (Mumbai time) GMT +5.30 6pm to 9pm (Singapore / Hong Kong time) GMT +8 | 7pm to 10pm (Japan time) GMT +9

ALB is pleased to present internationally renowned contracts expert Ken Adams for a 2-Part Virtual Masterclass. This hands-on masterclass explores how to draft contracts that express deal terms clearly and effectively, saving you time and money, enhancing your competitiveness, and mitigating risk. Rather than simply lecturing, Ken uses interactive exercises, encouraging participation and addressing practical considerations related to the drafting process. This masterclass is valuable for both junior and senior legal professionals, with tips that apply to all contracts drafted in English, whatever the governing law.

WHAT YOU’LL LEARN • Contract managers • Practical skills from a global industry leader • Anyone who drafts, negotiates, or reviews • The problem with traditional contract contracts language • How efficient contract drafting can benefit SPECIAL OFFER your business Special Discount For The Book • The basics of rigorous contract language "A Manual of Style for Contract Drafting" and layout 6 Public CPD points Each participant can purchase a copy of the latest (3 Public CPD Points Per Day) • Why revising your contract process can edition of Ken Adams’s book, A Manual of Style Practice Area: Corporate / Commercial improve contract language for Contract Drafting at a 30% discount. The Training Level: General SILE Attendance Guidelines: seminar explores issues addressed in detail in Participants who wish to obtain CPD Points are reminded that they WHO SHOULD ATTEND this one-of-a-kind book that has become a valued must comply strictly with the Attendance Policy set out in the CPD Guidelines. For this activity, this includes logging in at the start of the • Lawyers resource for the legal profession. webinar and logging out at the conclusion of the webinar on each day of the activity, and not being away from any part of the webinar for • In-house counsel more than 15 minutes on each day of the activity. Participants who do • Paralegals and managers in law firms and PRICE (inclusive of 7% GST) not comply with the Attendance Policy on any particular day of the activity will not be able to obtain CPD Points for that day of the activity. corporations USD749 Please refer to http://www.sileCPDcentre.sg for more information.

REGISTER Online: https://www.legalbusinessonline.com/kadams2020MB Please contact the following to book your place at this webinar: Amy Sim | T: (65) 6870 3348 | E: [email protected] Krupa Dalal | T: (91) 87 7967 7503 | E: [email protected] Felix Cheng | T: (852) 2843 6943 | E: [email protected] Romulus Tham | T: (65) 6870 3575 | E: [email protected] Jeremy Lim | T: (65) 6870 3789 | E: [email protected] Yvonne Cheung | T: (86) 131 4394 3617 | E: [email protected] John Guo | T: (86) 5669 2037 | E: [email protected]

THIS TWO-PART VIRTUAL MASTERCLASS COVERS:

The state of contract drafting • Why does it matter? • How to use vagueness • Costs and causes of deficient drafting Layout Select Usages • Goals for the program • How to present sections, subsections, • Problematic words and phrases The Front and Back of the Contract and enumerated clauses • Clearer alternatives • Title and introductory clause • Using Adams’s enumeration scheme Drafting as Writing • Function and layout of recitals • Issues of typography • Some general principles of good writing • Traditional recital of consideration Using Defined Terms that apply to contract drafting • Concluding clause • Two kinds of definitions • Role of exhibits and schedules Bringing It All Together • Role of the definition section • Redrafting sample provisions Categories of Contract Language • Using an index of defined terms • Different categories of contract Effecting Change Ambiguity and Vagueness language and their function • The individual • Different kinds of ambiguity • How to distinguish between categories • The organization • How to avoid them

SPEAKER Ken Adams, Author, A Manual of Style for Contract Drafting As the leading authority on contract language, Ken Adams has successfully coached people around the world in drafting clearer contracts. His groundbreaking book A Manual of Style for Contract Drafting has sold tens of thousands of copies internationally since it was first published by the American Bar Association in 2004. The much-expanded fourth edition was published in October 2017. In 2014, the Legal Writing Institute awarded Ken its Golden Pen Award, “to recognize his exemplary work in contract drafting.” As part of its “Legal Rebels” project, in 2009 the ABA Journal—the flagship magazine of the American Bar Association—named Ken one of its initial group of fifty leading innovators in the legal profession. And in 2015 the ABA Journal named Ken’s blog to the Hall of Fame of its “Blawg 100”—its list of the hundred best law blogs. For more information about Ken and his activities, go to www.adamsdrafting.com. MALAYSIA MALAYSIA RISING GOH CHAI LING JAZZMINE KHOO WEI CHING LEE YONG CIEH EDWIN 36, partner, 27, managing partner, 35, partner, Adnan Sundra & Low Jazzmine Khoo & Associates Gan, Lee & Tan (GLT Law)

Goh’s experience Khoo was a protégé of A corporate, commer- includes advising late Dato’ Dr. Arunan cial and technology financial institu- Selvaraj, the founder specialist, Lee is a tions and compa- of Rusmah Arunan & co-founder and the nies on conventional Associates, and like managing partner and Islamic banking him, she specialises of GLT Law. He is and finance trans- in matrimony and also a co-founder actions including family law. Following of CanLaw Asia, a securities borrowing the passing of Dato’ homegrown legal and lending, syndicated and bilateral Arunan, Khoo stepped up to lead the tech startup. Among his notable trans- financing, corporate bonds and sukuk, litigation team at the Kuala Lumpur actions, Lee has advised an airline retail bonds, asset-backed securitisa- branch of Rusmah Arunan. She even- in relation to a proposed decision tion, convertible securities issuances, tually established her own law firm, issued by the Malaysian Competition perpetual securities issuances, project which specialises in matrimonial and Commission under the Competition Act financing transactions, green bonds family law. Among her notable cases, 2010. Lee also advised various multi- transactions and debt restructuring. Khoo represented a mother who wanted national telecommunication compa- Having acted as transaction counsel to protect her two young children born nies and service providers on the regu- in local and cross-border debt capital out of wedlock, aged one year and three latory and licensing requirements of the market issuances involving multi- months old, respectively, from their Malaysian telecommunications industry, currency Regulation S issuances and abusive father who was unwilling to including their respective applications complex structures, Goh has played a support the family. Khoo successfully for various licenses under the Malaysian major role in advising on pioneering and helped the mother gain sole guardian- Communications and Multimedia Act award-winning Malaysian Islamic capital ship, custody, care and control of her 1998. He is a finalist for the Young markets transactions such as ASEAN children. A client of hers says: “Amidst Lawyer of the Year at the ALB Malaysia Green SRI Sukuk and SRI Sukuk. She the apparent chaos and grapples of daily Law Awards 2020. “Edwin’s strong work has also advised on M&A transactions, provides and living for the children in ethics surpass any other lawyers of his which include the drafting and negotia- its entirety culminating from the lack of standing that I have known, met and tion of agreements for the acquisition of contribution of the other half, seeking engaged with. In the interests of working oceangoing drilling platform fabrication the help of a lawyer becomes inevi- commitment and perfection for his yards between large public-listed and table, something most of us will shy clients, he has had, in many instances, government-owned entities.” away from due to the fear of cost and accommodated his weekends for them. Goh commenced her legal career in sincerity. Jazzmine secured a paradigm That itself, is an enduring sacrifice which Malaysia in 2008 with a different local shift in my scepticism of lawyers. She has I believe will provide Edwin with a fast law firm before joining Adnan Sundra & commendably garnered my confidence, track of breadth experience in his career Low in 2011. compatibility and most of all, trust.” progression,” says a client.

18 ASIAN LEGAL BUSINESS – JULY 2020 WWW.LEGALBUSINESSONLINE.COM MALAYSIA

Young lawyers are making great strides in Malaysia’s legal industry as they work on various complex matters. ALB profiles six lawyers from the Malaysian legal market who have made an impact in STARS 2020 the industry. BY APARNA SAI NATALIE OOI WAN QING SHARIZAN SARIF DATO’ FION WONG SOOK LING 32, partner, co-founder, 39, partner, 34, managing partner, Ooi & Ooi Azmi & Associates Shang & Co.

Ooi is a partner and With over 16 years Wong focuses on co-founder of Ooi & of experience in matrimonial and Ooi and specializes the legal industry, family law. Having in dispute resolu- Sharizan special- spent nearly a decade tion. She is a finalist ises in mergers and in the legal industry, for Women Lawyer of acquisitions, and she has co-authored the Year (Law Firm) corporate commer- a handbook on and Young Lawyer of cial matters. Among family law practice in the Year (Law Firm) his notable deals, he Malaysia, including at the ALB Malaysia Law Awards 2020. has advised Selangor State Economic commentary, procedures and forms. Ooi says that she found that all young Development Corporation in a strategic In 2016, Wong was part of the team lawyers face the same challenges at the collaboration for the development of that won the Matrimonial and Family start of their career, although female integrated tourism and commercial Law Firm of the Year award at the ALB lawyers are sometimes seen as objects area in Bernam Jaya with the esti- Malaysia Law Awards. In 2019, she rather than a subject. “So, for others mated cost of 3.6 billion ringgit ($840 successfully submitted and argued on to recognise me for who I am, I real- million). Other clients include Majlis the court’s power in granting custody for ised that I consciously needed to repre- Amanah Rakyat and Tenaga Nasional children in which the court has the rights sent myself as a subject. After all, we Berhad. “Sharizan is tenacious, driven to only grant sole custody and not joint are always treated in the way we treat and hugely passionate for each of the custody in accordance to the reading others,” Ooi says. She adds that she has projects that he undertakes,” says the of s.88 of the Law Reform (Marriage & found that female lawyers have to be firm’s senior partner, Dato’ Azmi Mohd Divorce) Act 1976. In the earlier cases, assertive without being aggressive. She Ali. “He has a keen eye for details which the court had given joint custody, as it says: “I believe that female lawyers are makes sure that no aspect of the trans- had relied on the Singapore cases which generally more collaborative and tend to action is left unturned. His strong referred to the Women Charter Act. That find common ground instead of clashing analytical skills provide the clients with Act gives judges the power to grant head-on. In doing so, we are able to over- multiple negotiation options to ensure joint custody, while the Malaysian Law come pre-existing biases against female that the client always has the upper Reform (Marriage & Divorce) Act 1976 lawyers.” Prior to the launch of Ooi & hand in negotiations. His discipline and only allows sole custody. The distinction Ooi, she worked at Jeff Leong Poon & strong work ethics aspires the team to between Singapore’s Women Charter Wong. “Her work ethic and ability to continuously strive to meet the clients’ Act and Malaysia Law Reform (Marriage deliver different points of view repre- needs, as efficiently as possible, without & Divorce) Act 1976 was ignored by the sents the best of the next generation. I compromising on quality. These qual- Malaysian judges in the High Court and believe that her real and honest opinion ities give great comfort to the clients, Court of Appeal. With Wong’s argument, gives our firm its added advantage,” says and make him a treasured asset to the the previous landmark cases would not Nicholas Ooi, partner at Ooi & Ooi. firm.” be able to stand.

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

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

Being a legal hub for the Southeast Asian region, Singapore rightfully boasts top-quality lawyers in both the private practice and in-house spaces. But this year, as the impact of COVID continues to cast a shadow, in-house teams are under even greater pressure. This year’s ALB Singapore In-house Teams list celebrates lawyers who stand out for their innovation, their leadership qualities and the value they add to their businesses. BY ELIZABETH BEATTIE

In an unprecedented year, general “But systems and process improve- counsel globally have been relied upon ment does not bring significant results on to guide their teams and organi- without the right people at the helm,” sations through unsteady waters and Chew adds, noting that the team has ambiguity in the wake of COVID-19. prioritised “and have been very delib- There have been difficult decisions to THE LIST erate in retaining, growing, bringing make, preemptive planning required and and diversifying talent who believe in budgetary restrictions to navigate. Given our ‘purpose’ and theirs.” the challenges of the past few months, Although such change and trans- that some in-house teams have emerged AMAZON - SINGAPORE formation have been difficult, NTU is stronger are all the more impressive. “undoubtedly better positioned today Even before COVID, in-house teams than we were yesterday”, says Chew, had been feeling the pressure. There are DNV GL noting that these changes have held shrinking budgets, rising expectations the university in good stead when the and condensed timelines to grapple with pandemic arrived. and in many cases, GCs are also tack- EASTERN PACIFIC SHIPPING ling the mammoth project of reshaping UNPACKING THE IMPACT OF their teams to meet these challenges COVID-19 head-on. EQUINIX ASIA-PACIFIC It’s impossible to examine the perfor- For Gregory Chew, general counsel mance of in-house teams this year and chief legal officer at Nanyang without considering the ongoing chal- Technological University (NTU), change GLP lenges sparked by the global pandemic. has been the name of the game for the The teams that stood out this year past few years, well before the disrup- were those that innovated and worked tions brought about by COVID-19 came KLOOK collaboratively. about. Wei-Pin Choo, chief legal and “The administration leadership has compliance officer at Razer, Singapore’s changed significantly since the start of NANYANG TECHNOLOGICAL most well-known gaming lifestyle brand, our transformation journey,” Chew tells says that along with many other compa- Asian Legal Business, noting that this UNIVERSITY nies, the firm had to adjust to working was necessary to meet the University’s from home. But the legal and compliance growing ambitions. As well as a “signif- team was somewhat at an advantage. icant transformation” in terms of people RAZER “We didn’t have to be in the office and processes, NTU has rolled out several to access certain equipment or tools the new policies over the past few years. way some of our colleagues had to (e.g. “We have been positively aggres- RGE engineers),” says Choo, and besides, sive in tangentially leveraging new as the global team was undergoing systems brought to the University the same challenges at a similar time, intended for other functions, such as PILMICO INTERNATIONAL “there was a great sense of solidarity and retooling e-signing platforms for elec- shared purpose between us,” he says of tronic contract approval workflows, legal team’s experience of the pandemic over contract matter management through a TELSTRA SINGAPORE the past few months. digital workflow platform intended for This time also provided an opportu- enterprise operations, and electronic nity for Razer to respond directly to the ‘whistleblowing’ software forms instead YUM! ASIA FRANCHISE outbreak. “On the business and CSR side of traditional channels, to name but a of things, we successfully pivoted some few,” he says of the many internal devel- of our know-how and resources to begin opments undertaken by NTU. mask production,” Choo says.

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

“We converted existing produc- noting that this has most likely made the arise in a lock-down situation,” says Choo tion lines and started a mask manu- team even more efficient and effective of Razer. “We’ve made an active effort facturing line in Singapore,” he says, from a technology perspective. to personalise our communications by adding that Razer’s masks are now avail- Xae Hoyy Loh, vice-president, using video as much as possible as a able in vending machines throughout general counsel and compliance officer substitute for face-to-face meetings as Singapore. at Pilmico International, says the past well as to host regular team meetings In addition to illustrating adapt- few months have provided an opportu- online,” he adds. ability and innovation, other attrib- nity to look at the business logistics. “As a global team with members in utes have grown increasingly essential With the firm’s headquarters in various countries and across different for in-house teams over the past few Singapore and manufacturing facili- time zones, we have always made full months. ties situated in various sites throughout use of various tech solutions to enable Choo says the need for cost- the Asia-Pacific region, the firm prizes effective communication. Whilst we able consciousness and efficiency have connectivity. as we are in continuing to perform our been heightened during this time, with “We are used to the running of the respective roles as we work from home, new approaches and strategies being operations team with our management and we realise that with voice and video explored. team offsite. The challenge, however, calls we need to make an extra effort to “On the intellectual property side is within the management team, we ensure that the communication is clear,” of things, for example, we are looking at were all tasked to work from home as says Choo of navigating the work from alternative strategies such as more tech- Singapore implemented the country- home quirks that many teams are navi- gating at present. While technology has enabled much of the team to work seamlessly, Choo believes that sustained remote work is “Over the span of the work-from-home period, not ideal for everyone. “I believe that most of us do look forward to a return to we have completed the rollout of our new internal the office at some point given the value of document management systems. It goes to show daily face-to-face interaction,” he notes. that productivity has not gone down during this period Chew, meanwhile, whose university was called out as an essential service and all our employees still play their part in provider in Singapore, was in something ensuring that work gets done.” of a different position. “We have the benefit of a local — Xae Hoyy Loh, Pilmico International campus community where we could meet and dialogue in person, as opposed to leveraging audio-visual platforms, the communication standard in most global enterprises,” he says. nology sharing and licensing arrange- wide Circuit Breaker where telecommute Additionally, the background of ments, as opposed to more unilateral is mandatory for all. It was challenging change that the university has already and defensive registration strategies,” but essential for us to ensure the safety undertaken helped to establish a strong he explains. of all our employees and we must do base from which to tackle the challenges “Given the state of the global our part to support our government to of COVID-19. economy, we do see companies taking combat the pandemic,” Loh says. “Fortunately the effort and work a closer look at the value of their IP we put in over the last couple of years assets and we see an increase in trans- ADAPTING TO THE prepared us for this unfortunate event, actions involving the sale and acquisition ‘NEW NORMAL’ not only because we had proactively of IP portfolios, M&A transactions or IP Globally, work and internal office culture introduced electronic capabilities to licensing arrangements,” Choo notes. has appeared markedly different during enable our team to remain highly Additionally, COVID had also illus- the COVID pandemic. Office spaces have productive ‘offsite’, but because we trated how much of a priority technology remained empty for months, while teams first understood how to work as a team has become for in-house teams. “Not have gained a more personal view of bonded together by a common purpose,” that we weren’t already doing it but this their colleagues (and their homes). says Chew. period has brought to the fore our reli- The way teams operate has also Loh’s team meanwhile has been ance on tech tools such as e-signing markedly changed over the past few adjusting to telecommuting. Initially, a of legal documents, video and audio months. “We were mindful that a sense major challenge for the team was meet- conferencing solutions etc.,” Choo says, of being disconnected and isolated could ings being held online, with Xae Hoyy

22 ASIAN LEGAL BUSINESS – JULY 2020 WWW.LEGALBUSINESSONLINE.COM COVER STORY noting: “It was not as effective as phys- past few years, explains that throughout Choo says that during difficult ical meetings at first, but we gradually COVID the overall mindset shift that has times, in-house lawyers will have an got used to it.” been cultivated has played a significant opportunity to stand out. But in the longer term, this hasn’t role in how the team operates. “Whenever we enter into a crisis proved overly disruptive. “Over the span “The legal and compliance team situation, there are always clear oppor- of the work-from-home period, we have was traditional in approach and thinking, tunities for lawyers to step up,” he says. completed the rollout of our new internal rather than seeing ourselves as solu- “Our training and expertise prepare document management systems. Our tion providers, or thought leaders. So, us particularly well to deal with chal- initial expectation was to complete this we had to purposefully change mindset lenging situations. We can help address by Q4 of 2020 but we have delivered and talent, transitioning from archetypal risks, allocate resources and trouble- this way before the expected dateline. It roles to agile and purpose-driven ones,” shoot issues. The best in-house lawyers goes to show that productivity has not he says. not only have a solid foundation of gone down during this period and all our This internal shakeup has also legal expertise and experience but also employees still play their part in ensuring changed the way NTU look for talent develop an acute understanding of busi- that work gets done,” Loh notes. going forward and what is prioritised ness needs and priorities. Difficult times While the pandemic has triggered when it comes to seeking talent that like these are an opportunity for such a large setback in some of the firm’s will be able to go the distance. in-house counsel to ‘flex their muscles’ plans to develop and build business in “When we interview prospec- a little and start to play roles beyond the certain jurisdictions, overall the team tive candidates, we say ‘If you’re inter- purely legal one,” he notes. has already witnessed positive changes that Xae Hoyy will look to hold onto in the future. “Although we are now working from home, we are communicating more “The best in-house lawyers not only have a solid often as we make sure to catch up every week to find out and obtain updates as foundation of legal expertise and experience but also compared to the previous once a month develop an acute understanding of business needs and catch up with the team. This is some- priorities. Difficult times like these are an opportunity thing that we will continue after the pandemic,” he says. for such in-house counsel to ‘flex their muscles’ a little The past few months have also and start to play roles beyond the purely legal one” offered him another perspective. “The — Wei-Pin Choo, Razer biggest take away from this experience is one of patience. With many offices (both private and public) being closed due to the pandemic, we have seen processes slowed down in some of the regions and countries which are still developing,” he ested in learning and growing, creating From Loh’s perspective, ongoing adds. sustainable things that don’t exist preparation is important for legal teams today, improving areas that should be to ensure they are always ready for future SHAPING WINNING TEAMS FOR improved for the better of our organi- challenges on the horizon. “We live in an THE FUTURE sation, and above all think of the team age where change happens constantly. Emerging post-COVID, the big question first, then this is the place for you. In We are therefore always planning for is what will the long-term impacts of the return we promise an environment the next big thing,” he says, noting that pandemic be? While these are yet to be where you can make an impact not only the past few months has also shown the seen, there is much speculation about to the higher mission of education which value and strength of teamwork. what further transformation may look in itself helps to shape our leaders of “In this, the team has always like. tomorrow, but a place which you can worked together based on one main Of course, for GCs, change has been proudly call your own because it reso- principle of teamwork. We trust our a constant over the past few years as the nates with your purpose’,” says Chew, colleagues and at the same time, we role increasingly demands these leaders noting that millennials now represent earn the trust of our team members. to step further into the spotlight within the majority of the university’s legal and This will remain the way we collaborate their organisations, and during COVID compliance team. and work together as we achieve our this has only grown more important. Increasingly, companies are looking goals. With the right attitude, we are Chew, who played an essential role for talent with an ability to adapt, and able to weather any storm, together,” in NTU’s internal transformation over the take initiative, and show leadership. Loh notes.

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – JULY 2020 23 ENERGY & RESOURCES

aspects are consistency, clarity, certainty, simple bureaucracy, law enforcement, transparency and inclusion of all stake- holders, says Djauhari: “The aforesaid legal aspects, if applied altogether, will A NEW ERA OF MINING lead Indonesia to achieve the national aim as set out in the constitution, i.e. to Indonesia recently ratified a long-anticipated bill amending the provide greatest benefit for the people.” country’s 2009 Mining Law. Lawyers say that the large-scale For her the key provisions in this revisions to the law could improve the feasibility of doing business amendment include the reform and in Indonesia’s natural resources sector. BY RANAJIT DAM the focus on ease of doing business in mining sector. “It simplifies the licensing system and centralises the authority to issue licensing,” says Djauhari. “The management of mining so far had been constrained by the duel authority of the central and regional government and concerns on the management capacity and competency of the regional govern- ments that have failed to provide condu- cive climate for mining industry. This has been the motivation to shift the mining authority to the central govern- ment.”

INCENTIVES FOR INVESTORS According to Djauhari, given the level of complexity faced by miners in Indonesia, the amendment endeavours to offer incentives to investors among others by assuring a steady zoning plan of an already-determined mining area. “Another incentive is also granted for holders of IUP [mining business licence] and IUPK [special mining business In June, Indonesian President and regional government to market licence] to develop downstream facilities Joko “Jokowi” Widodo signed Law No. volatility,” says Eva Armila Djauhari, a by granting an initial 30-years period of 3/2020, about a month after the coun- partner at law firm Armila & Rako. license with 10-years for each extension,” try’s House of Representatives approved Djauhari believes that the amend- she says. Holders of an IUP whose shares the bill on May 12. The law amends ment has the potential to improve the are majorly owned by foreign entities Indonesia’s 2009 legislation governing business outlook in the mining industry. must divest down to 49 percent share coal and mineral mining. The amend- “This is especially important with the ownership directly pursuant to the set ment is aimed at expanding the coun- slowdown of global economy, weak hierarchy. Should it be failed, divest- try’s mining industry, but it has also met commodity prices and protectionism ment may be carried out through the with some criticism over potential soci- practise in many countries,” she notes. Indonesian stock exchange.” oenvironmental impact, as well as lack “For this amendment to be effective, the The amendment also imposes new of transparency. central government should strengthen obligations for mining industry to allo- From the perspective of lawyers, the its resources and infrastructure in cate funds for community development amendment is deserving of applause. anticipation of receiving its expanded program, for conducting yearly explora- “It is consistent with the commitment authority, intensify cooperation and tion program and for a new resilience of the Indonesian government under the coordination among ministerial depart- fund, says Djauhari. “There are also leadership of President Jokowi to ease ments as well as produce comprehen- few provisions to stimulate explora- hurdles faced by the mining industry, sive and clear implementation regula- tion, whereby the government is now ranging from complex bureaucracy, tions.” able to assign business entities a right inconsistencies of regulation at all levels, For the extractive industry in to conduct investigations and research conflict of authorities between central Indonesia, the most important legal in the context of preparing a new mining

24 ASIAN LEGAL BUSINESS – JULY 2020 WWW.LEGALBUSINESSONLINE.COM BROUGHT TO YOU BY ARMILA & RAKO Amended Mining Law: A Step Forward Towards Good Governance in Extractive Industry

Hardship and battle against Covid-19 allocation funds for community development did not dissuade the Indonesia House of program, yearly budget allocation for explora- Representatives (DPR) to swiftly complete tion program and resilience fund. The details the long-awaited revision to the Law No 4 of of the provisions of this law will be regulated 2009 (“Mining Law”). Precisely, the Law No. in the implementation regulation which shall 3 of 2020 concerning the amendment to the be prepared by the government within a year Mining Law has been published and effective of this Amendment. as of 10th June 2020 (“Amendment”). The encouragement and incentives for Ongoing challenges suffered by the the mining industry under the Amendment is industry, inconsistencies, conflict author- aimed to invigorate the uncertain investment ities between central and regional govern- Eva Armila Djauhari climate that has weakened an already glob- ment, market volatility, the state interest Partner ally depressed industry. Not only to achieve and benefit for the country and intention to [email protected] the aforesaid objective, the Amendment is improve governance in extractive industry were also purposed to improve the mining govern- major drives to issue this Amendment. Armila & Rako ance in Indonesia so that the objective to The selected key points under the 12th Floor, Lippo Kuningan manage the mineral and coal resources Amendment to the extent of its consequences Jl. HR. Rasuna Said Kav. B-12 based on the principles of accountable, for to the mining business, include the reform Jakarta 12920, Indonesia the nation’s interest as well as sustainable of the licensing system whereby the system T: (62) 21 2911 0015 and environmental soundness may eventu- is now centralised such that eliminating the E: [email protected] ally be achieved. authority of the regional government. There W: www.armilarako.com While the Amendment is a step forward are also various incentives for mining oper- towards a good mining governance, neverthe- ators and junior mining companies as well less, there remains uncertainties, controver- as the holders of Contract of Work (CoW) and smooth transitioning into the IUPK sies and flaws in the Amendment that might and Coal Contract of Work (CCoW) granted licensing regime. The Amendment also reit- lessen the effectiveness and objective of the in the Amendment. The Amendment gives erate divestiture obligation of foreign owner- law. Hopefully the implementation regulation a lot of highlight on the CoW and CCoW, ship in a mining company down to 49% and to be issued within a year of this law can help therein it grants necessary business certainty impose new obligations to all miners such as the nation accomplishing its mission.

area for auction and subsequently to DESIRE TO IMPROVE ance mechanism which in fact is crucial confer a right to match in the auction.” Additionally, the amendment comes for all stakeholders and may signifi- However, the biggest highlight is from the desire of the state to improve cantly disrupt investment activities in the continuation of Contracts of Work the management of the mining industry this sector.” (CoW) and Coal Contracts of Work by giving greater certainty to busi- Djauhari acknowledges that (CCoW). “The amendment guarantees nesses and benefit for the country, as despite the hard work that has gone the CoW and CCoW an extension to opposed to producing robust mining into creating a conducive law for the continue their mining operations after governance. “As a consequence, a few industry, there remain uncertainties, its expiry without tender by way of components in the mining industry are controversies and flaws in the amend- converting the contract or agreement somewhat overlooked such as the deli- ment, not to mention part of the stake- into Continuation Operation IUPK. This cate issue of complex and vulnerable holders who are dissatisfied with, and conversion also exempts the holder from communities surrounding mining areas felt left out by it - which might impair the rules of maximum mining area as it that often be a material obstacle for the worth of the amendment. “Ideally, may still retain the present mining area the business,” Djauhari notes. “While the law is an instrument of equilibrium in its entirety,” she notes. the amendment recognises the obliga- between the interests of business, Djauhari also points out that the tion to support of sustainable national nation and its people,” she says. “In amendment at this stage is effectively development and therefore imposes reality, it is not an easy document to an outline of principles, rules and laws, obligations for mining industry to write out, particularly in the absence of standards and norms, and as such it allocate funds for community devel- the national mining policy and a long- does not regulate and encompass all opment program and requires manda- term strategy as guiding principles. issues in mining industry exhaustively. tory consultation between the mining Having said that, this effort of search for “The amendment indicates that detail of industry with all levels of govern- better governance and harnessing the the rules to be regulated in the govern- ment and locals, nevertheless there mineral and coal resources for sustain- ment regulations, which shall be issued is no mention as to how to govern this able development deserve an apprecia- within one year of the promulgation of issue nor is there guidance regarding tion and support from all elements of the amendment,” she says. compensation, resettlement, or griev- nation.”

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – JULY 2020 25 M&A

The coronavirus pandemic has resulted in a drop in M&A transactions across the Asia-Pacific region. Lawyers say that while they are still seeing deals, there are differences in both the nature of the transactions DEAL DIP as well as the deal terms and process. BY RANAJIT DAM COVID-19 has certainly taken its includes distressed sales and take- on allocation of risk through tightened toll on dealmaking in Asia. A report from private deals. MAC provisions and reps, warranties and Refinitiv found that M&A transactions “In terms of the nature of the indemnities. Finally, sellers are looking across Asia-Pacific (excluding Japan) transactions, there is greater focus on for increased certainty on a buyer’s had fallen to their lowest in three years distressed assets and privatisations of financing. Whether this is a return to to $29.9 billion across 709 deals in May, undervalued public companies,” says true ‘financing condition’ deals or deals following 855 such deals worth $52.6 David Bulley, a partner at offshore law which involve large reverse break fees if billion in April. firm Appleby who leads the firm’s private the buyer pulls out is to be seen.” The Refinitiv report added that equity, venture capital and M&A team The Refinitiv report also found that overall in the first five months of 2020, in Hong Kong, as well as that office’s the decline in deal value came in spite of the APAC region saw deals worth $249.9 corporate restructuring, distressed debt a slight increase in global M&A activity, billion, a drop of 10 percent year on year, and special situations practice special- which saw deals worth $100.6 billion in and the lowest year-to-date level since ising in Cayman law. “We are also seeing May, up 9 percent from April, a month 2013. However, given how M&A has been reduced PE M&A activity as funds work when transactions fell to their lowest impacted globally, the APACE contri- through the pre-COVID M&A pipeline monthly value since September 2004. bution to overall deal value rose to 28 but struggle to originate new deals due However, the number of deals was signif- percent from 18 percent for the same to COVID travel restrictions. Finally, icantly smaller; in May, global deals were period last year. Worldwide, $903.1 large corporations are increasingly 65 percent lower year-on-year. “In our billion worth of deals were announced focussing on carve-outs as financially experience, deal volume is being driven during the first five months of 2020, a stressed businesses assess their non- by deals between existing stakeholders drop of 43 percent compared to 2019, core assets and divisions.” and by companies looking to carve-out and the lowest such period since 2013. Bulley highlights that there are non-performing assets,” says Bulley. With the outbreak prompting differences not just in the nature of the “Conversely, we are seeing fewer deals governments to impose widespread transactions, but also the deal terms being completed between unrelated measures disrupting business activity, and process. “Focus on due diligence parties.” stock markets have plunged as well. has increased as buyers try to accurately Reuters reported earlier that bankers assess the impact of COVID on a poten- SECTOR FOCUSES and lawyers fear they will continue to tial target, particularly given some of the According to Bulley, there are two see negotiations and deals signed but accounting provisions which companies primary sectors where Appleby is seeing not completed or put on hold as sellers are using, for example EBITDAC [earn- a lot of M&A activity. “The first is health- and buyers reassess business funda- ings before interest, tax, depreciation, care,” he says. “Last year’s top industry mentals. Of the deals that are being amortisation and coronavirus],” he for M&A has seen continued strength. pursued at the moment, a large chunk notes. “There is also a greater focus COVID has created short term demand

26 ASIAN LEGAL BUSINESS – JULY 2020 WWW.LEGALBUSINESSONLINE.COM for medical products, focused attention deals. Working with clients on reviewing Bulley adds that from a deal terms on the sector and created opportunities, and analysing take-private opportuni- perspective, COVID has increased focus particularly in Chinese healthcare where ties has also proportionately increased on due diligence and allocation of risk. consolidation is required.” compared with pre-COVID.” “In the longer term, we expect this The second is technology. “COVID to trend back to pre-COVID levels as has provided further impetus for the LOOKING FORWARD increased competition for assets once acquisition of, or investment in, tech- Bulley feels that while the growth in markets fully open will lead to more nology companies by corporates looking cases of COVID may be slowing in most aggressive buyer-side deal terms being to support their core-business activities. jurisdictions other than the U.S. and dropped,” he notes. Solutions to support logistics, inventory Latin America (and recently a second He believes, however, that the world and supply chains have been a particular outbreak in Germany), business is a long is only at the beginning of the wave of focus,” he notes. way from returning to “normal.” M&A opportunities that will ultimately Bulley says that due to the firm’s “There is also a key question for be created by COVID. “Whilst the client base, other than a slight dip in the businesses of what the new normal will number of cases has been the primary January-February period, Appleby has look like post-COVID as governments focus, the pain from COVID has not yet remained very busy throughout COVID. unwind aggressive stimuli and look to truly been felt in many countries,” says “Currently work is ongoing throughout reduce their fiscal deficits,” he says. “In Bulley. “Further distressed opportunities the transaction cycle including struc- terms of M&A activity, we expect early will be created in the coming months turing of proposed deals (particularly trends to include activity in deals aimed as governments withdraw support for take-privates), ongoing diligence work, at consolidation or vertical integra- business which has negated the need for pre-closing negotiations and post- tion driven by a need for companies to immediate redundancies. This is likely to closing equity co-investments,” he adds. improve and repair their supply chains; cause unemployment to increase signifi- “Given the increasing focus on due dili- and bargain-hunting by PE firms in cantly, hurting consumer-facing indus- gence, this has formed a greater propor- some of the sectors hit hardest by COVID tries and creating further distressed tion of our work compared to pre-COVID including energy and retail.” opportunities.”

Our team of highly regarded, experienced investment fund specialists, possess the commercial aptitude, industry knowledge and legal skills necessary to ensure that our clients’ fund and transaction structures are optimally designed to meet their needs, and the needs of their target investors.

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WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – JULY 2020 27 CHINA GC ROUNDTABLE

TALKINGThe COVID-19 outbreak has added an extra layer of complexity RETAIL to China’s retail industry, offering lawyers in these companies yet another challenge to tackle. General counsel at retail companies discuss how they are assisting their companies in this ever- evolving market. BY HU YANGXIAOXIAO

ALB: What is the current size of your The corporate legal team handles legal team and what services are you all legal issues related to the compa- providing to the company? ny’s business functions, including Elle Hu, legal counsel, Zegna Greater finance, M&A, personnel, ethics and China Region: We have a small legal compliance, treasury and taxation. team at Zegna currently with only two The e-commerce and Sam’s Club legal people – me and a legal assistant, support team was established in 2016 but we provide a full range of legal when Walmart started the digital trans- support for Zegna’s Greater China formation to accelerate its deployment region markets. Although the luxury of omni-channel retail, and effectively sector is cautious in developing digital combine the e-commerce business with marketing and e-commerce platforms, brick-and-mortar stores. Walmart legal we are seeing an obvious trend of going support team mainly supports busi- online, and our job now involves more nesses under Walmart brand, such as legal matters related to e-commerce, commodity procurement, supply chain, and data and privacy compliance. store operations, and crisis management. Ruan Zhijie, general manager of legal Ashley Zhu, legal director, Sephora department, Red Star Macalline: Our China: Including me, our team now has legal department now has a headcount five in-house lawyers with everyone of 51 people. We’re providing legal focusing on a different legal practice support and managing legal risks on area, for example real estate, data all aspects both horizontally and verti- protection and privacy compliance, cally. Horizontal support refers to legal new retail and e-commerce, intellec- team’s geographical coverage, and tual property, corporate issues and vertical support refers to the depth of consumer protection. We share the our services. core values of keeping track of the Hu: External lawyers are reliable Daniel Shih, general counsel and chief latest industry trends, understanding strategic partners, especially when corporate affairs officer, Walmart company’s strategy, and delivering dealing with issues requiring specific China: Walmart China’s legal team is concrete services to better meet the expertise or facing with legislative composed of five teams with over 30 needs of different business scenarios. grey zones. We usually seek advices legal professionals, namely corporate from external lawyers in areas such legal team, e-commerce and Sam’s ALB: In what areas are external as general business risks, litiga- Club legal support team, Walmart lawyers meeting your legal team’s tion and arbitration, anti-counter- legal support team, real estate legal expectations, and in which ones are feiting, antitrust and data privacy. We team and dispute resolution team. they failing to do so? would choose specific partners under

28 ASIAN LEGAL BUSINESS – JULY 2020 WWW.LEGALBUSINESSONLINE.COM CHINA GC ROUNDTABLE

A man wearing a face mask walks past an Apple store in an upmarket shopping district in Beijing as the country is hit by an outbreak of the novel coronavirus, China, March 4, 2020. REUTERS/Thomas Peter considerations of expertise areas and To be frank, in some less developed the resolution of disputes related to fee rates. regions, sometimes it would be very major business transactions. Ruan: External lawyers could provide difficult to find qualified lawyers and Lawyers could create more value effective support to in-house lawyers we have to rely on ourselves to provide for clients if they could give more because we sometimes are stuck remote support, which is not so timely insightful and forward-looking advice. in dilemmas between business and or effective. For example, the prevailing unfair law and they could help us think out Shih: Law firms are our important competition law and the consumer of box. However, we’re also expe- partners. We maintain close rela- protection law mainly deal with riencing the uneven quality of legal tionships with many firms, especially issues in the traditional retail industry. services provided by external lawyers. regarding some newer legal issues and As we’re developing e-commerce

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – JULY 2020 29 CHINA GC ROUNDTABLE business, it’s important if external the frontline. Supermarkets somehow lawyers could furnish us with valuable were becoming as important places as opinions on the legislative trends and hospitals. the risks we might be exposed to in Our legal department has actively those regards. participated in safeguarding the supply Zhu: From my career experiences and chain and supporting store opera- personal preferences, I would advise tions by accelerating the procure- external lawyers to first, provide ment process in a controllable but the best compliance practice in one flexible manner. Now as the COVID-19 specific area on the basis of truly outbreak is slowing down, we started understanding clients’ pain points; to help the company formulate internal and second, provide forward-looking procedures for enhancing the ability to strategic advice on the possibility and respond to crisis, and advancing the future risks of a certain business model. business digitalization, among others. We need external lawyers to have deep “The so-called ‘new retail’ Zhu: During the outbreak, our legal understanding of the industry, espe- is an experimental and team helped on issues like negotiation cially in this era of internet and open- innovative model first of rent reduction, providing compli- source information, external lawyers introduced in China. ance plans for new business models are no longer competitive by simply As in-house counsels, such as live streaming, cross-border selling regulation search results or we need to keep abreast of e-commerce, and cooperation with even risk assessment and analysis. home delivery platforms, for example new business knowledge and Meituan and Eleme. ALB: Given the impact of COVID-19 legislation trend, to help the In my eyes, the more prepared you are outbreak on the retail industry in company navigate business in the era of omni-channel retailing, China, what have your team done to through all the uncertainties.” the more resilient you will be during help your company tackle the chal- crisis like the COVID-19 outbreak. — Elle Hu, Zegna lenges? And what do you learn from this crisis? ALB: What regulatory and compli- Hu: In the era of globalization, the ance challenges has your company supply chain and the market are inter- faced in China over the past one or connected. In the short term, as the two years? How is the legal team retail industry outside China has been tackling them? greatly impacted by the COVID-19 Hu: One of the challenges faced by us outbreak, it’ll also have a negative is consumer’s data protection, which impact on the Group’s performance. In involves a lot of sub-topics, such as the the long run, the integration of online competition and collaboration with the and offline retail business models EU’s GDPR, the ban of facial recog- requires this century-old traditional nition technology, and the boundary brand accelerate its transformation, between big data and personal privacy. which could be even more challenging. “External lawyers could Ruan: We have a special compliance Ruan: As a home and furniture shop- provide effective support to department in Red Star Macalline ping mall operator, we indeed suffered in-house lawyers because who’s responsible for all compliance during the crisis. Faced with the forced we sometimes are stuck in issues, but our legal team is also closures of nearly all malls, we could dilemmas between business assisting from different aspects. On neither collect rents nor help tenants and law and they could one hand, the legal team’s respon- to resume businesses. sible for sending compliance require- The legal team provided support help us think out of box. ments to all the shopping malls and from the following three aspects: However, we’re also business sectors; on the other, we also Firstly, seeking for rent reductions experiencing the uneven need to collect compliance-related for both the malls and the tenants. quality of legal services issues encountered by different sectors Secondly, assisting on the building of provided by external lawyers.” and report them to the compliance e-commerce channel. Finally, assisting department. on the funds providing to the tenants. — Ruan Zhijie, Red Star Macalline Shih: Given that the combination of Shih: During the outbreak, with the online and offline business is an irre- shutting down of nearly all businesses, versible trend, we’ve been working to we could see retailers still working on help business department to achieve

30 ASIAN LEGAL BUSINESS – JULY 2020 WWW.LEGALBUSINESSONLINE.COM CHINA GC ROUNDTABLE business goals and reduce risks, from department better understand the the aspects of consumer protection, changes in regulatory mechanisms, data protection, and personal privacy and design and implement a work- protection. For example, we’ve briefed flow that can effectively handle risks our business department several in multiple processes, even some risks times recently concerning the latest that are not fully aware by the business trends on personal privacy protection department. and we’ve taken concrete moves to Take cross-border e-commerce strengthen this protection. as an example. You have to face a Zhu: Our regulatory and compliance whole different set of regulatory issues focuses include: cross-border data compared with simply doing retailing transmission, cybersecurity and privacy business locally. Besides, there usually protection, and importing products, are data protection problems related to among others. e-commerce models, so our legal team “We are called has to be familiar with data protection ALB: With the rising of e-commerce ‘general counsel’ because laws of different countries/regions, platforms and the ever-evolving we’re expected to be such as GDPR in EU and relevant laws of business models in the retail advising generally on all in the U.S. industry in China, how is your legal corporate issues. Apart from Zhu: Sephora has its own product team helping the company to remain providing legal advices, lines, own membership and own competitive? e-commerce platform, which give our Hu: The so-called “new retail” is an general counsel should also business department a lot of room to experimental and innovative model play the role of ambassador play with different business models. first introduced in China. As in-house of one company’s culture From the legal team’s perspective, this counsels, we need to keep abreast of and value.” could be both challenging and bene- new business knowledge and legis- fiting, for each project is providing — Daniel Shih, Walmart lation trend, to help the company a real scenario to test our business navigate business through all the sense and in depth understanding of uncertainties. the law. Ruan: Red Star Macalline is not a repre- sentative retailer: we mainly provide ALB: How are you planning to develop logistics services and space rather the legal team further? than selling furnitures by ourselves. Ruan: We need to focus on both In the past, we focused more on brick strengthening our expertise as well and mortar stores and now, we have as broadening our skill kit. In-house to create a new type of service which lawyers can never gain enough knowl- combines offline and online channels edge on both law and business. altogether. Besides, we also require lawyers to We’ve explored a lot in this regard keep track of other colleagues’ works, and our legal team is making prepa- “Sephora has its own product and we even have internal rotation rations of our own from three aspects: lines, own membership and system to nurture legal all-rounders. First, the knowledge aspect. In-house own e-commerce platform, Shih: Given the focus of retail enter- lawyers have to keep learning about which give us a lot of room to prises has shifted from opening new the latest business models and play with different business stores to the combination of online legislative updates, so as to provide models. This could be both and offline sales models, our legal precise solutions when the company is department is faced with challenges exploring certain new models. Second, challenging and benefiting, from the transformative changes in the the talent aspect. We have to diversify for each project is providing retail business model. Therefore, we the knowledge and experience back- a real scenario to test our need to be forward-looking, willing to grounds of our talents within the legal business sense and in depth build business acumen, and help push team. And finally, the toolkit aspect. understanding of the law.” forward the robust business develop- We need to adopt new technology tools ment when regulatory rules are vague. to better share core data within the — Ashley Zhu, Sephora In-house lawyers have to learn to whole company. operate in legislative grey zones and Shih: In the era of omni-channel to provide rather risk-free advices to retailing, we need to help the business avant-garde models.

WWW.LEGALBUSINESSONLINE.COM ASIAN LEGAL BUSINESS – JULY 2020 31 THE BACK PAGE

THE TOP 5 THINGS LAW FIRMS HATE ABOUT RFPS BY NANCEY WATSON

Request for proposals (RFPs) is the top reasons why RFPs can frustrate clients that don’t communicate necessary in the legal industry to help law firms include when corporate clients the scoring process and proposal corporate clients decide which law firms do things such as: assessment criteria are putting to select for a panel or certain matters. themselves at a disadvantage. The current COVID-19 pandemic crisis 1. Ask for AFAs but they really don’t Law firms need to know what the has only made this reality more crucial. mean it — Corporate law depart- rating is for fees versus other tech- In my experience, many RFPs are ments that say they want alternative nical factors. The responses to the poorly written, do not provide the infor- fee arrangements (AFAs) but revert selection criteria will give in-house mation law firms need to customise their to hourly rates even when provided departments the best indication of responses, and do not ask the right ques- with detailed AFA proposals top how the strengths of the competing tions — especially in the fee section — to the list of frustrations for many law law firms align with the company’s get corporate law department leaders firms. These AFA requests are often goals. or legal procurement specialists the simply fishing expeditions. And answers they need to make a well- I have seen this tactic more often 5. Neglect to notify law firms that informed decision. Legal departments than you may think. Law firms take were not selected — It is common need to improve not only how they craft a lot of time to involve partners, business etiquette (or should be) the RFP but also how they determine legal project managers, and pricing to notify those law firms that were exactly what they are trying to get out specialists to provide AFAs that they unsuccessful in their bid. It is of the process. believe would be beneficial to the amazing that very often firms are I recently worked with a client on client. Of all the pet peeves of law not notified as to the results of the a proposal for a global panel and was firms, this is a big one. selection process. Even if debriefs shocked to see that it was sent from a top are not permitted (and that infor- Fortune 500 company. The format was 2. Impose unrealistic deadlines — mation should appear in the RFP) poor, the questions were ambiguous, Crazy deadlines that don’t allow a phone call or at least an email is and the fee section did not permit trans- for thoughtful responses or are appreciated as a common cour- parency. I have no idea how the corpo- imposed with the expectation tesy by the bidders that were not ration would have been able to fairly that law firms will drop everything selected. appraise the submissions they would to reply on time. This tactic may receive and then come up with the best indicate to some law firms that a Hopefully, remembering these selection of law firms. specific firm has been pre-selected, top five law firm frustrations will give Now, however, some procurement and that the RFP is being proffered in-house legal teams some insight into and legal operations professionals are simply because it is corporate policy how treating law firms better during the becoming more sophisticated and are to seek three bids. RFP process can end up resulting in a striving to create smartly worded, well- more beneficial outcome for everyone thought-out RFPs. However, I think that 3. Fail to test software or spread- involved. all in-house legal departments would be sheets — Often the RFP software wise to periodically review their proposal or Excel documents included in processes to ensure that they imple- the offering have glitches that are Nancey Watson is president of ment best practices in order to achieve not discovered until the proposal is NL Watson Consulting, and consults a win-win outcome. almost due. This can be a disaster with in-house counsel on developing because pricing information is often request for proposals (RFPs). TOP FIVE REASONS WHY the last information to be added to LAW FIRMS HATE RFPS the bid submission. A version of this piece was The way the RFPs are worded and how published by the Thomson Reuters they solicit answers from law firms can 4. Exclude selection criteria, such as Legal Executive Institute be a challenge for those firms. Some of weighting information — Corporate (www.legalexecutiveinstitute.com).

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