Message from the Co-Chairs, January 2019
A message from the Co-Chairs of the Asia Pacific Regional Forum, Akil Hirani and Sky Yang.
Message from the Editor, January 2019
A message from the Editor of the Asia Pacific Regional Forum, Ramesh Vaidyanathan.
Arbitrating in Japan: should we consider the JCAA as an administering institution?
A well-known 1991 article, written by Charles Ragan, provided a lengthy critique of arbitrating in Japan and, specifically, before the Japan Commercial Arbitration Association (JCAA). Ragan complained of parochialism, arcane rules and a costly and inefficient process. Having just successfully concluded a JCAA arbitration in 2018, the author compares Ragan's observations from nearly 30 years ago to the state of arbitration in Japan today. The conclusion is that the Japan of today has modern arbitration laws, competent practitioners and JCAA arbitration is well-administered and consistent with international standards.
When will Japan have a casino resort?
In July 2018, a unique Act was passed by the National Diet of Japan that makes the operation of casinos legal when operated in an area designated as MICE facility. Being unique, the Act has a very complicated structure, calling for cooperation amongst the national government and municipal governments, together with the private sector. However, due to political complexity and the magnitude of the businesses concerned, Japan is unlikely to have a casino resort before the mid-2020s.
Hong Kong: asset recovery in the hotbed of Asia-Pacific cybercrime?
Crime rates in Hong Kong have been steadily falling from 14,193 reported incidents of violent crimes in 2009 to 7,662 incidents in 2017. Inversely, cybercrime is on the rise in Hong Kong. The number of technology crime cases increased from 1,506 to 5,567 (approximately 370 per cent) during that same period. Commentators have speculated that this regional trend can be attributed to the fact that the internet was not initially built for commercial use, or that regulators do not have the speed and agility to match that of cybercriminals.
Foreign counsels and Philippine arbitration practice
The practice of law in the Philippines is exclusively for Philippine lawyers. Whether foreign counsels can appear before arbitral tribunals in the Philippines is still a grey area but the Philippines' pro-arbitration policies may allow foreign counsels to engage in a limited practice of law as long as the law involved is that of their home jurisdictions.
Australia to be a major player in a global hydrogen industry by 2030
Hydrogen and fuel cell technologies have been the hot topic in the Australian energy industry in recent months. On 19 December 2018, the Council of Australian Governments Energy Council formally endorsed the development of a hydrogen industry in Australia. The commitment follows the recent publication of three national strategic papers and the findings of the International Energy Agency and the World Energy Council, that Australia could be the world's largest hydrogen producer.
Message from the Co-Chairs, September 2018 - China Working Group
A message from the Co-Chairs of the China Working Group Group, Caroline Berube and David Liu.
IBA APAG International Arbitration Training Day: Introduction to the IBA Soft Law Instruments - China Working Group
The event was presented by the IBA Asia Pacifc Arbitration Group (APAG), with support from the IBA Arbitration Committee, the IBA Asia Pacifc Regional Forum, Shenzhen Lawyers Association (SLA) and Shenzhen Court of International Arbitration (SCIA) on 21 April 2018, in Shenzhen Court of International Arbitration, Shenzhen, China. International practitioners were invited to speak on the topics including IBA Soft Law Instruments relating to international arbitration along with the recent developments in investment treaty arbitration.
Trade wars, WTO crisis and China’s response: reshaping global trade rules - China Working Group
Will 2018 be remembered as the beginning of the demise of the WTO Trade remedies, disputes, frictions, and wars. The global trade order is being reshaped with the WTO at the sidelines. Even worse, the dispute settlement mechanism, the 'crown jewel' of the WTO, may soon stop functioning. This article briefly discusses the trade wars and certain other actions started by the Trump administration, the WTO crisis created by such actions, China's responses to these actions, the resurgence of bilateralism and their impacts on the reshaping of global trade rules.
China to merge antitrust authorities - China Working Group
On 17 March 2018, the Chinese legislature decided on a major restructuring of governmental agencies, with a profound impact on antitrust enforcement in the country. Although there had been discussions and rumours for a while about the restructuring, the extent and significance of the planned reform measures went beyond the expectation of many commentators. It is clear that there will be major changes to the ministries and other institutions under the State Council.
The proposed individual income tax reform in China - what you need to know - China Working Group
The Draft Amendment to the Individual Income Tax Law was first reviewed during the 3rd Session of the Standing Committee of the 13th National People's Congress, which closed on 22 June 2018. On 29 June 2018, the Draft Amendment was published on the NPC's official website for a one-month period to receive feedback. In this article, we share the key changes the Draft Amendment proposes and their impact on individuals' income, if approved.
A brief introduction to the recent development of China Depositary Receipts - China Working Group
On 30 March 2018, the State Council of China promulgated the opinions on the pilot programme of China Depositary Receipt. The following promulgated regulations by the China Securities Regulation Commission opened the gate for red-chip companies to get financing from China's stock market. These acts have triggered extensive repercussions. The first half of 2018 has signalled the introduction of many liberalising changes with respect to the Chinese capital market and the promulgation of China Depositary Receipt (CDR)-related regulations should be in the spotlight.
The Arbitration Initiative under the Belt and Road Initiative - China Working Group
The Belt and Road Initiative has offered ample international trade opportunities to Chinese entrepreneurs with over 60 countries in Europe, Africa, Middle East and Asia. However, the BRI has also come with a significant issue in term of practicality: there is no common culture and legal system among the countries in the BRI. This can be a political hindrance to the establishment or initiation of common legal institutions in the event of commercial disputes arising out of cross-border projects or international trade. What, therefore, is the dispute resolution option that these cross-border entrepreneurs could possibly resort to?
Top ten points for Chinese enterprises to bear in mind when they do M&A transactions in India: issues arising from differences - China Working Group
Investments by the Chinese have grown significantly over the past few years, with major players such as Alibaba, Tencent, Baidu and Fosun Group making significant investments in entities in India, such as Paytm, BigBasket and Ola, among others. Such investors seeking to engage in cross-border M&A and originating from China have had to address certain regulatory concerns from both an Indian and Chinese perspective. However, it is important to note that the governments of both these nations have taken positive steps to encourage investment activities and are in the process of establishing systems with the intention of reducing the imposition of onerous compliances on prospective investors.
Venturing into uncharted territory: a discussion of the changes brought by PRC Supervision Law and the challenges that might be faced - China Working Group
On 11 March 2018, the 13th National People's Congress (NPC) representatives adopted a constitutional amendment. Among others, the Amendment listed the Supervisory Commission as a state organ that operates alongside the administrative and judicial institutions. This makes it clear that the Supervisory Commission is an independent political institution. It does not take orders from the executive branch, nor from the judicial branch. In this sense, the establishment of the National Supervisory Commission ( NSC) marked a new era for China's top-level power structure, meaning the State Council, the NSC, the Supreme People's Court plus the Supreme People's Procuratorate.
Restrictions on FDI in Russia and China - China Working Group
Foreign investors in China and Russia enjoy generally national treatment, but, at the same time, there are some restrictions on FDI in Russia and China. Generally, these restrictions are connected with national security.
News corner: Negative List - China Working Group
The Special Administrative Measures on Access of Foreign Investment (Negative List) became effective from 28 July 2018. The List lays out sectors in which foreign investment shall be restricted/prohibited or subject to additional procedures.
Message from the Editor, May 2018
A message from the Editor of the Asia Pacific Regional Forum, Ramesh Vaidyanathan.
Message from the Co-Chairs, May 2018
A message from the Co-Chairs of the Asia Pacific Regional Forum, Akil Hirani and Ameera Ashraf.
Challenges faced by women lawyers in Pakistan
Women in developing countries face several challenges because cultural and structural factors have traditionally safeguarded the interests of men. In order to give fair representation to women lawyers there must be a joint commitment by government and judiciary.
Legal education crisis in Pakistan
The legal education system in Pakistan is in crisis. The Supreme Court has constituted a Committee to propose reforms regarding legal education and access. This article suggests that the relevant stakeholders should take this challenge collectively and implement the forthcoming recommendations by the Supreme Court.
Thailand's trademark enforcement and protection systems
Registration of trademark maybe the easiest part, the difficulty is in enforcement. Thailand has always taken counterfeit issues very seriously and a proactive role in what it can do to enforce trademark rights at customs. Thailand is moving fast in this area and coming up with new ways to combat counterfeit products in the market. The introduction of the Intellectual Property Rights Recordation System is being well received and showing signs of being effective. Educating the public is an important aspect in bringing awareness of the importance of brand protection in Thailand. The IP Office and other organisations such as Customs are also playing a big role.
India's proposed code on wages, 2017
The present Indian government has demonstrated its intent and commitment to improving the ease of business in India, promoting economic growth and job creation. Significant among the recent government initiatives are those aimed at simplifying India's unnecessarily complex employment law framework and digitising compliances under various employment laws. This article examines the key features of the new Wage Code and the effect it will have on Indian workers.
Why should Asian companies worry about the extraterritorial reach of the Brazilian anti-corruption enforcement?
At first glance, a public policy enforced by Brazil should not concern companies located in Asia. However, globalisation is making inroads with still unclear consequences for the Asian booming economies. This article looks at some high profile cases of corruption that have occurred in Brazil and warns that the unique combination of legislation and enforcement in Brazil could be a cause for concern for Asian investors.
The workplace regulator in Australia: exploitation and compliance
The Fair Work Ombudsman (FWO) is the Australian regulatory agency responsible for compliance with federal workplace laws. In recent years, the FWO has directed its focus and resources to prevent the exploitation of vulnerable workers, the poor record keeping that allows such practices to occur and the associated accessorial liability of third parties found to be involved in the contravention of the Fair Work Act, 2009. In this article we look at recent examples of how the FWO has pursued employer non-compliance in these areas, and some of the lessons that have emerged.
Policy document on anti-money laundering and counter financing of terrorism - digital currencies (sector 6)
In February, 2018, the Bank Negara Malaysia issued a policy document, Anti-Money Laundering and Counter Financing of Terrorism, which seeks to address certain aspects relating to digital currencies in Malaysia. This article looks at the key factors of the new policy.
Foreign direct investment: recent trends and limitations in the Asia-Pacific region
A report on the session led by the Closely Held and Growing Business Enterprises Committee with the Asia Pacific Regional Forum at the IBA Annual Conference in Sydney.
New challenges from online shopping ecosystems to traditional drafting of distribution agreements - China Working Group, April 2018
The annual November sales of all major online shopping platforms in China are expected to bring record highs, sometimes even on a global level. Foreign brand owners, however, have been comparatively slow in responding to this phenomenon, possibly because the major shopping platforms mostly serve the Chinese market. Further, some foreign brand owners who have participated have come to realise that they have not sufficiently understood the online shopping ecosystems prior to being granted distribution rights.
Shanghai Intermediate People's Court refuses to enforce SIAC arbitral award - China Working Group, April 2018
In August 2017, the Shanghai No 1 Intermediate People's Court denied recognition and enforcement of a SIAC arbitral award on the grounds that the composition of the arbitral tribunal and/or the arbitral procedure was not in accordance with the arbitration agreement of the parties. In the same circumstances, however, the Singapore High Court, in a previously decided case, rejected challenges to both the application of the expedited procedure and the appointment of a sole arbitrator. This articles looks at both decisions.
An introduction of key amendments to the PRC Anti-Unfair Competition Law - China Working Group, April 2018
The amended Anti-Unfair Competition Law (AUCL) of the People's Republic of China was adopted at the 30th session of the Standing Committee of the 12th National People's Congress on 4 November 2017 and took effect on 1 January 2018. The old AUCL was never amended in the 24 years since it was implemented. This article looks at how the revised AUCL makes comprehensive and much needed amendments.
An anniversary review of China's Foreign NGO law - China Working Group, April 2018
More than a year has passed since the introduction of the law on the Management of Activities of Foreign Non-governmental Organisations within China. Based on our experience assisting various foreign NGOs during the past year, as well as observations, analysis and interpretation of our communications with foreign NGOs and the relevant authorities, this article provides an overview of the law.
News corner: taxation law - China Working Group, April 2018
A brief update on the changes to tax laws being implemented in China.