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Alipay and the impact of e-payment systems resulting in new regulations in China and other jurisdictions - China Working Group

By Yi-An (Ann) Lai. Alipay and the impact of e-payment systems resulting in new regulations in China and other jurisdictions.

China’s restrictions on cross-border transfer of personal information: an update on regulatory policy and practical implications

This article will outline the development of China’s restrictions on the cross-border transfer of personal information (PI export), detailing PI export mechanisms provided by the Personal Information Protection Law. It will also explain the practical implications of the restrictions.

China's regulation of artificial intelligence – progress and challenges

Artificial intelligence (AI) is developing rapidly in China, with the number of patents and the size of the market both ranking highly among countries. However, this rapid development has posed new challenges to the legal framework, ethical norms and social governance, prompting China to continuously adjust and improve the relevant regulatory system.

Mediating Disputes Involving Chinese Parties

Mediation is on the rise internationally as a means to settle disputes in a cost-effective manner. Chinese parties appear to be increasingly interested in mediation as an option. This article examines the evolving landscape of mediation in China and internationally. It considers how mediation for Chinese parties is evolving and whether mediation is a good option for Chinese parties in cross-border disputes. Commercial mediation has seen remarkable growth, bolstered by a supportive PRC judicial system and legislative initiatives encouraging parties to find harmonious ways to resolve disputes. The article analyses the three primary types of mediation in China: people’s mediation, administrative mediation, and commercial mediation. It also looks at mediation rules and proceedings in common law jurisdictions, such as Hong Kong, Singapore, and the United States. The article anecdotally considers the cultural elements, emphasising the Chinese parties’ preference for evaluative mediation styles as a reflection of civil law. Through case studies of international disputes involving Chinese and US parties, the article illustrates the practical dynamics of mediation involving Chinese parties and underscores the importance of cultural sensitivity in international mediation. As Chinese parties continue to go global, mediation is emerging as an attractive option for efficient and cost-effective dispute resolution. This analysis assesses whether the promotion of mediation is yielding tangible outcomes and explores the future of mediation involving Chinese and foreign parties.

Utilising Generative AI in Businesses: Risks and Best Practices

The rise in popularity of generative artificial intelligence (‘generative AI’) has ignited the discussion on whether junior employees can be replaced by it. Some have gone to the extent of questioning whether professionals, such as lawyers, can also be replaced by generative AI. Is it wise to replace junior employees or lawyers with generative AI? What factors should be considered before deploying generative AI tools in your business? To consider these questions, we first need to understand the basic workings of generative AI and what it can offer. Fundamentally, AI is intelligence that is not biological. The general understanding is that machines will be ascribed with this intelligence. These machines have the ability to interpret, learn from and process external data in a way that is similar to the capabilities of the human mind. Generative AI is a type of AI program that generates content from a data set. It uses deep learning, a type of machine learning system that behaves like a neural network to simulate the functions of a human brain. In other words, it can mimic human intelligence by exhibiting analytical skills to create new content. Not only can generative AI be utilised in chatbot programs to create text, but it can also be used in programs that can create images, sound or videos. This article will consider two major forms of generative AI, in the context of risks to businesses: chatbots using generative pre-trained transformer technology programs; and image generating programs.

A Brief Discussion on the Implications, Regulation and Prospects of AI in Dispute Resolution Practice with a Focus on China

The SEC’s tough stance on intermediary institutions: compliance and litigation risks

This article discusses the recent SEC case involving PwC and highlights the wider implications for intermediary institutions providing professional services in a tightened regulatory and enforcement regime in China’s banking and financial sector.

Observations on new trends in Chinese anti-corruption laws and practice

In the Chinese legal system, provisions addressing commercial bribery are dispersed across various legal instruments and judicial interpretations. Among the different legal authorities in China, the core provisions guiding anti-corruption can be found in the Anti-Unfair Competition Law and its draft Amendment (issued in 2022 and still open for public comment); the Criminal Law of China, along with its amendments; and the Supervision Law of China and its accompanying regulations for implementation.

Women in power

In a year of significant elections, Global Insight examines why women are underrepresented as candidates for office in many countries.

IBA Aviation Law Committee: 2024 Annual Conference summary

A summary of the IBA Aviation Law Committee’s activities at the IBA Annual Conference in Mexico City from 15–20 September 2024.

‘Lawfare against justice’

The war in Ukraine has brought an awareness of the extremely dire consequences of corruption. Global Insight examines the dangers of leaving legal systems open to abuse by the rich and powerful

The impact of the Covid-19 pandemic on production sharing contracts in Nigeria

This article discusses the impact of the Covid-19 pandemic on the Nigerian oil industry by presenting the current situation and comparing it to other states in the same region.

Pillar Two – analysis of the tax burden faced by affiliates of multinational enterprises from OECD member countries – the definition of corporate taxes and tax benefits (2023)

This panel focused on defining corporate taxes and tax benefits, which is crucial for calculating the effective tax rate within the Organisation for Economic Co-operation and Development’s Pillar Two Model Rules framework.

Challenges enforcing public policies on data protection and competition in digital markets: an Argentinian perspective

By Nadine Bengtsson. Challenges enforcing public policies on data protection and competition in digital markets: an Argentinean perspective

Turkey introduces new tax law

Law No 7440 on the Restructuring of Certain Receivables and the Amendment of Certain Laws, which entered into force after being published in the Official Gazette on 12 March 2023, provides for the restructuring of taxes, insurance premiums, and administrative fines; the settlement of existing and potential disputes; the correction of business records, such as cash, receivables from shareholders, and inventories; and the increase of the tax base for certain taxes.

Specific considerations on the consequences resulting from Spanish income tax laws regarding transactions carried out with countries or territories that have recently been listed as ‘non-cooperative jurisdictions’

This article outlines the significant Spanish tax implications that could arise from transactions undertaken with, or by, persons resident or incorporated in non-cooperative jurisdictions, as enumerated in a recent ministerial order.

Premium conditions for significant foreign investments into Ukraine

Ukraine makes a significant effort to overcome challenges with transparency and stability. One recent solution is the recent law, ‘On State Support to Projects with Significant Investments’. The legislation is aimed at removing bureaucracy and creating investment incentives.

Family foundation: a new legal concept in Poland in the context of M&A transactions

The concept of the family foundation was introduced into Polish law based on the Family Foundations Act (FFA) of 22 May 2023. The concept of family foundation has been introduced as a new legal entity, which aims to manage property and assets in accordance with the founder’s intentions and plans, as well as providing the beneficiaries, who are often the founder’s closest family members, with benefits related to the foundation’s funds.

Structuring and financing investment in cross-border residential real estate

A report on a panel, which discussed and presented slides on the tax and non-tax consequences of inbound and outbound cross border investment in residential real estate through various structures in the following countries: Australia, Italy, Mexico, Switzerland and the United Kingdom.

France’s draft Finance Bill for 2025 - balancing fiscal justice and economic growth

As France faces significant economic challenges characterised by mounting public debt and a record-high deficit, the draft Finance Bill for 2025 is currently being discussed before the French Parliament. The Bill seeks to reduce the public deficit from seven per cent to five per cent of gross domestic product through a €19bn revenue increase, introducing new taxes targeted at high-income individuals and large corporations. The legislative process is complicated by a hung parliament and social crises. Despite the government’s efforts to address all the issues at stake, ongoing political instability raises questions about the efficacy and stability of France’s economic policies.

Environmental compliance: a growing concern in France

A reform of environmental criminal law, aimed at strengthening its response to environmental damage is shortly to be introduced in France. This article provides an assessment of the French legal and regulatory background to address environmental crime and upcoming procedural tools which will allow companies to be proactive when a given misdemeanour is uncovered.

Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd and another

This article, by former Judge President of South Africa’s Competition Appeal Court, Dennis Davis, examines the decision of South Africa’s Constitutional Court in the Mediclinic case, which concerned a proposed merger in the private healthcare sector involving hospitals in relatively small towns. The Constitutional Court overturned the decision of the majority of the Competition Appeal Court, which found that because medical care in Potchefstroom and Klerksdorp did not fall within the same local market, the merger did not give rise to the problem of a substantial lessening of competition in the local market. The article concludes that whilst the Constitutional Court’s emphasis on the role that the Constitution must play in the interpretation of provisions of the Competition Act is to be applauded, and this case will doubtless influence the interpretation of the Competition Act in future litigation, the right to healthcare in section 27 of the Constitution is not a jurisprudential war cry, and its application must still depend on the facts of the case. The decision may invite the Competition Commission to invoke the Constitution, almost without fetter, and reduce the Competition Appeal Court’s jurisdiction considerably so as to render the Competition Commission far less accountable than should be the case in a dispensation based on the rule of law.

Statutory limitation in Lithuania concerning historical tax losses

The utilisation of historical tax losses by Lithuanian companies might appear very attractive, as the Lithuanian Law on Corporate Income Tax provides that it is generally unlimited in time (for tax losses from general economic activities). The general statutory limitation term for the recalculation of taxes is also quite short, three years. Recent case law from the Supreme Administrative Court has provided the explanation that the statutory limitation term, however, does not apply to situations when the taxpayer wishes to utilise tax losses from earlier periods. Thus, the taxpayer should substantiate and the tax administration could challenge the historical tax losses incurred in the out-of-statutory limitation term periods, if the taxpayer wishes to use them within the open period.

Navigating the intricacies of tax residency in Zambia for corporate entities

This article examines the intricacies surrounding the concept of a ‘place of effective management’ in determining tax residency for foreign corporate entities in Zambia. While Zambia’s Income Tax Act incorporated the concept of a ‘place of effective management’ to align with international practice, the undefined concept creates uncertainty that leaves the concept open to various interpretations. This article further critiques the inadequacy of the guidance provided by Zambia’s tax authority on the concept and compares the concept of a place of effective management with the alternative concept of a ‘head or main office’ in achieving certainty in the determination of the tax residence of corporate bodies.

Indian Supreme Court decision on characterisation of software payments

The Supreme Court of India has recently rendered its decision in Engineering Analysis Centre of Excellence v The Commission of Income Tax & Anr, finding that the amount paid by resident Indian end-users or distributors to non-resident computer software manufacturers or suppliers, as consideration for the resale or use of computer software, cannot be characterised as ‘royalty’ (that is, the use of copyright in the computer software) under Article 12 of the Tax Treaties.

Sports and taxes (2023)

This panel covered several important and current topics on the taxation of professional sports, with a special focus on football. The topics covered included: the international taxation of player transfers and loans; image rights; TV quotas; licensed products and bets; agent remuneration; tax residency issues and incentives; Brazilian ‘anonymous football societies’ and investment opportunities; and tax issues arising from investment structures.

Preparing for the next pandemic

The impact of the Covid-19 pandemic is still reverberating across multiple areas of law, from procurement to employment. Global Insight assesses how the experience will prepare us – and the law – for future pandemics.

Lex Cryptographia: Guidelines for ensuring due process in transnational blockchain-based arbitration [1]

Blockchain-based arbitration is just like traditional arbitration except it takes place on blockchains, such as Ethereum. The arbitration agreement forms part of the smart contract, arbitrators are selected using random numbers extracted from the blocks in the blockchain and the award is also embedded in a self-executable smart contract. There is currently no regulation in transnational blockchain-based arbitration. Any such regulation faces a number of serious challenges, such as how to determine the applicable jurisdiction in a blockchain-based arbitration. This article seeks to address such challenges by suggesting some possible guidelines.

Covid-19’s impact on finance contracts: are there any grounds for the borrower to ease or otherwise mitigate its contractual obligations?

Under various legal constructs, legal systems enable a party to a contract to ease its obligations or otherwise seek a rebalancing of the terms of the contract where an extraordinary and unforeseeable event makes one party’s performance excessively onerous and this results in an unreasonable imbalance in the parties’ obligations. The Covid-19 crisis has increased the interest shown by legal commentators, regulators, legislators and virtually all firms, big and small, in scrutinising the opportunities to benefit from these constructs to suspend or reduce rents in leases, to terminate or reduce committed shipments in supply agreements, to stop or reduce committed investment in franchise agreements and the like. This paper concludes that no such relief would be available to borrowers or obligors under finance agreements.

Monetary claims and ADR under French Law: when must you try out-of-court settlement before issuing a claim?

As a result of the Covid-19 pandemic, from one day to the next the courts were out of the parties’ reach. ADR was thrown into the spotlight in France. However, a 2019 Civil Procedure Reform had just restricted the scope of the parties’ obligation to try out-of-court settlement of low-value monetary claims, thereby confirming the courts’ well-established interpretation of the non-binding nature of ADR.