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All rights reserved. LexisNexis® The New Normal Law Guide 2020 Preface The start of a new decade was envisaged to be paved with high hopes and new opportunities. However, over the first half of 2020, the COVID-19 pandemic has adversely impacted the livelihood of many across the world in an unprecedented manner. With social distancing measures and travel restrictions in place, the pandemic has also caused major disruptions to business operations across all sectors and will fundamentally change the way in which business is conducted as the global economy adjust to this new normal. In the legal profession, practitioners and clients had to adapt to new modes of work and interaction with each other as a result of the pandemic. While challenges with adverse implications abound, opportunities to adapt to this new normal have likewise begun across various legal disciplines. A prime example being the Hong Kong courts and other dispute resolution institutions could approach affairs such as remote court hearings and electronic document service with the aid of technology. Through this New Normal Law Guide, LexisNexis, in collaboration with a number of world-class law firms in Hong Kong, seeks to provide the latest insight on a wide variety of legal issues that have arisen as a result of the COVID-19 pandemic and to aid legal professionals in adapting to the new normal. Preface Contents Practice Areas: Page COMMERCIAL Oldham Li & Nie: Coping with frustration: does a commercial tenant have a legal justification to not pay rent in the “new normal”? .................................. 1 CONSTRUCTION Pinsent Masons: Coronavirus: remedies for Hong Kong construction contractors ........................................................................................................ 7 CONVEYANCING Stephenson Harwood: Commercial leasing in Hong Kong ............................ 12 CORPORATE Boase Cohen & Collins: Covid-19 and the question of Force Majeure .......... 16 Dechert: COVID-19 Coronavirus - Reporting Obligations for Hong Kong Public Companies .............................................................................................. 19 Dentons: Directors’ duties amidst the coronavirus outbreak ....................... 25 Hill Dickinson Hong Kong: COVID-19: Time for Hong Kong to update its insolvency law and statutory corporate rescue regime ................................... 29 DATA PROTECTION Hugill & Ip Solicitors: COVID-19: Protecting Your Child’s Data Privacy ....... 37 Kennedys: Recovery from cyber fraud loss in the COVID-19 era ................. 43 Latham & Watkins: Hong Kong Privacy Regulator Responds to Personal Data Privacy Issues Arising From COVID-19 ................................................. 48 Contents Contents Practice Areas: Page DISPUTE RESOLUTION Allen & Overy: Covid–19 coronavirus: how the APAC courts and arbitral institutions have adapted to the challenge ..................................................... 52 Baker McKenzie: Novel coronavirus outbreak – New business disruptions to Hong Kong industries ................................................................................... 58 Gall: Remote Hearings in Hong Kong’s High Court During COVID-19 ........ 62 Hogan Lovells: Hong Kong courts in lockdown – how technology is helping with dispute resolution in the time of COVID-19 ........................................... 67 EMPLOYMENT Bird & Bird: Wrong Place at the Wrong Time – Managing Hong Kong Employee Mobility Issues During COVID-19 .................................................. 75 Howse Williams: Hong Kong: A Guide to Employment Support Scheme ..... 81 Lewis Silkin: Managing your business and employees in Hong Kong during COVID-19 .............................................................................................. 86 Simmons & Simmons: COVID-19 – Legal issues to consider on the return to the workplace ................................................................................................ 90 FAMILY Tanner de Witt: Relocation applications: I want to relocate permanently from Hong Kong with my children but my former spouse will not consent ... 93 Withers: Challenging times: The effect of an economic downturn on divorce settlements ........................................................................................... 99 Contents Contents Practice Areas: Page FINANCIAL SERVICES King & Wood Mallesons: Tips for financial institutions to support customers and thwart criminals benefitting from COVID-19: FATF reports .................... 104 Mayer Brown: COVID-19 – Global Implications for Anti-Money Laundering and Counter-Terrorist Financing ....................................................................... 111 Robertsons Solicitors: Financial Intermediaries and Covid-19 ...................... 121 INSURANCE & PERSONAL INJURY ONC Lawyers: Employee’s rights to claim against the employer for Novel Coronavirus infection .......................................................................................... 124 PUBLIC Denis Chang’s Chambers: The Right to Property and Potential Legal Challenges against Forced Closure of Certain Business Premises amid Public Health Crisis ................................................................................... 128 Contents LexisNexis® The New Normal Law Guide 2020 Commercial Topic: Coping with frustration: does a commercial tenant have a legal justification to not pay rent in the “new normal”? Firm: Oldham Li & Nie Like the rest of the world, Hong Kong is allowed the virus to pass from the building struggling with the impact caused by the sewage system back to the apartments. Coronavirus in different facets. The pandemic is not only taking away lives, but also ravaging The unfortunate tenants of Block E of Amoy the economy without mercy. For business Gardens were faced with a dilemma: given owners, did you rent premises you thought you the situation, was there a legal justification for would be able to afford until the Coronavirus them to terminate the tenancy agreements? changed everything? In view of the prolonged Or should they continue to stay in the premises social distancing and the intermittent lockdowns which seemed to be unsafe for many after the which appear to be the “new normal”, are you expiry of the isolation order? planning to get out of the tenancy agreement by reason of the Coronavirus? In this article, This question went before the District Court we will list out some frequently asked questions of Hong Kong in the case of Li Chun Wing v and provide you with our answers, so that Xuan Yi Xiong [2004] 1 HKLRD 754. In this you might have a grasp of how the rights and case, a tenant of Block E (“T”) terminated the obligations of landlords and tenants may be 2-year rental agreement after the isolation affected as we adjust to a “new normal”. order lapsed, and the landlord (“L”) applied for summary judgment against T for the Q1. Has anyone ever brought a case to Court accrued rent and damages arising from the to terminate the tenancy agreement / get alleged repudiation of the tenancy agreement. out of his/her rental obligations by reason of The question for the Court was therefore a virus outbreak? whether T was entitled to terminate the tenancy agreement. Yes, but in the context of a domestic tenancy. The main argument that T relied on was the In 2003, Hong Kong was devastated by the doctrine of frustration. The general doctrine outbreak of severe acute respiratory syndrome of frustration would kick in when there is a (SARS), which infected 8,096 worldwide and supervening event (without default of either killed 744. Block E of Amoy Gardens (淘大 party and for which the contract makes no 花園), a private housing multi-storey estate sufficient provision) which so significantly in Hong Kong, was unfortunately hard hit in changes the outstanding contractual rights the epidemic as there were 107 people infected and/or obligations from which the parties could there. In view of the severe situation, the reasonably have contemplated at the time of Government imposed a 10-day isolation order its execution such that it would be unjust for on Block E and all the residents therein had the parties to further perform the contract. to be evacuated. Subsequently, scientific The supervening event, however, must not investigations suggested that the U-traps in merely increase the burden of the contracting the sewage systems had been left dry which parties but must be so substantial to discharge Commercial 1 About Author Anna Chan Partner, Oldham Li & Nie Tel: +852 2186