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Carina Wessels
Executive: Governance, Legal and Compliance, Alexander Forbes Group Holdings
Preeti Balwani
General Counsel at Hindustan Coca-Cola Beverages
Ron Yu
University of Hong Kong, Chinese University of Hong Kong, Hong Kong University of Science and Technology
Stanley Lui
APAC Legal Director, TI Fluid Systems Co-Founder, White Hat Guys
Emi has over 17 years of experience representing clients on complex commercial litigation and international arbitration proceedings under the ICC, LCIA, SIAC and TAI rules. Her expertise includes advising on commercial contracts, shareholder and joint venture disputes, employment, investigations (corruption, fraud and corporate governance) and competition law. Emi is also a professional counsellor, allowing her to comprehend the psychology of dispute resolution. Emi is half-Japanese and is fluent in Japanese.
Nattawut Cherdhirunkorn, Associate, Dispute Resolution, Litigation and Arbitration Practice, Kudun & Partners
Nattawut is an associate active in dispute resolution, litigation, and arbitration practice. He possesses extensive experience advising foreign and Thai clients on commercial disputes, labour disputes, intellectual property disputes, class action disputes and arbitration. He has represented clients as the main litigator in Thai courts and arbitration centers.
Felix Cheung, Associate, Hill Dickinson
Felix specialises in dispute resolution. He handles all aspects of complex commercial and international trade litigation from the Court of First Instance up to the Court of Final Appeal. Felix also has extensive experience conducting HKIAC, ICC, SIAC, UNICITRAL, LME, LMAA and ad hoc arbitration. Felix’s clients are multinational corporations and high net-worth individuals..
Jim James, Consultant, Hill Dickinson
Jim James has 45 years’ experience of litigation and arbitration, gained in Hong Kong and other locations in Asia and in London. His practice spans banking and commerce, construction, insurance, energy, shipping, shipbuilding, aviation and regulatory. He takes appointments as arbitrator and mediator.
Carl Watson General Counsel, Arcadis Asia
Raymond Goh General Counsel, International of China Tourism Group
Sally Dyson Director, Firm Sense
Yosr Hamza Director, Legal Counsel, Gartner
Rebecca Hong Managing Counsel, Intel Corporation Sesto Vecchi Managing Partner, Russin & Vecchi Navrita Kaur Chief Legal Officer, Omesti Group
lawyers collaborate across practices and offices to help the world’s leading commercial, financial and industrial enterprises, as well as institutions, individuals and governments, achieve their strategic objectives.
International law firm Milbank LLP announced in September that it has localised its practice into a Hong Kong law firm under the name “Milbank (Hong Kong) LLP”.
Milbank LLP has practiced in Hong Kong for many years as a registered foreign law firm providing advice on English and New York laws. As a foreign firm, Milbank LLP will cease to practice in Hong Kong, and a new firm, “Milbank (Hong Kong) LLP”, will commence practice as a Hong Kong firm of solicitors.
As a Hong Kong law firm, Milbank (Hong Kong) LLP will be able to broaden the scope of the services that it can offer to its clients, as it will not only be able to practice Hong Kong law, but will also continue to practice and advise on the laws of those other jurisdictions in which Milbank LLP currently practices.
Founded in New York over 150 years ago, Milbank LLP provides innovative legal services to clients around the world. It has offices in Beijing, Frankfurt, Hong Kong, London, Los Angeles, Munich, New York, São Paulo, Seoul, Si ngapore, Tokyo and Washington, DC. Milbank’s
Dentons has combined with leading Indian law firm Link Legal to become the first global law firm to combine with a law firm in India, giving the combined firm first-mover advan tage and a competitive edge in international panel competitions.
Dentons’ unique “polycentric” structure, which is based on a Swiss verein, strives to identify the positive attributes of a partner ship, allowing Dentons to combine with high quality firms in many jurisdictions, respecting the legal and regulatory requirements of each jurisdiction. This has allowed Dentons to grow in what will be 215 offices across 83 countries.
Link Legal is one of the premier Indian firms that is going out into the world, opening an office in New York and examining multiple other locations. As a first-mover, Link Legal represents the many large, fast-growing Indian companies that are globalising, as India becomes the most populous nation in the world in 2023.
The combination with Link Legal will offer an established, physical presence in five of the six largest cities in India: Mumbai, Delhi, Bengaluru, Chennai and Hyderabad. Dentons Link Legal Indian lawyers will represent clients inside India, while Dentons lawyers
will represent Link Legal’s clients outside of India, becoming one firm consistent with the rules and regulations of India.
“In the current geopolitical and economic landscape, India enjoys an important and enviable position. We approached Dentons because we recognised that a combina tion between our firms would help us meet and exceed the needs of our clients who are increasingly becoming global,” said Atul Sharma, Managing Partner of Link Legal. “Importantly, the combination allows us to be both global and local, helping us to connect our clients to leading legal talent around the world while continuing to be wholly owned, controlled and managed by Indian lawyers at Link Legal in India.”
“This is history in the making in India, because this is not a joint venture, not a “best friends” relationship, not a ‘referral agreement’, but a combination as Dentons has done around the world,” said Joe Andrew, Global Chairman of Dentons. “The combina tion in India again makes Dentons not only a first-mover but a first-mover in a market that matters to our clients.”
Goodwin has opened its Singapore office in the city’s central business district. It is the firm’s second location in Asia and the 15th office globally.
The Singapore office, which serves clients raising, deploying and lending capital in
the region and around the world, is chaired by private investment funds partner Greg Barclay. He is joined by private equity partner Abhishek Krishnan, counsel Ananth Lakshman and a team of associates.
Goodwin’s Hong Kong-based lawyers also support the new office and the firm’s clients in Singapore and the wider region. Private investment funds partner Elyn Xing will spend significant time in Singapore over the coming months.
“Singapore is a key hub for the technology, life sciences, real estate, private equity and financial services industries for Southeast Asia and India. Our new office in Singapore is important to our strategy of working with investors and companies in these key sectors,” said Yash Rana, chair of Goodwin’s Asia practice and co-chair of the global Private Equity practice.
The firm’s Hong Kong office opened in 2008 and today includes nearly 50 lawyers and global operations team professionals. The top-ranked practice is consistently recognised for excel lence. The Hong Kong and Singapore offices will work together seamlessly to meet the needs of the firm’s clients.
“Goodwin’s global platform is uniquely posi tioned to serve clients at the busy intersection
of capital and innovation, and Singapore – a magnet for both start-ups and capital flows – is at the heart of this intersection. We are thrilled to launch the office and assist our clients with achieving their strategic objec tives,” said Greg Barclay.
The team brings with it decades of crossborder transaction experience. Barclay’s practice focuses on the formation of and investment into private equity, venture capital, credit, infrastructure, real estate and hybrid funds, as well as other capital-structuring matters across the alternative asset classes, including joint ventures, co-investments, segregated accounts, investment management mandates and complex secondaries/restruc turing transactions.
Krishnan and Lakshman have a broad-based transactional practice with an emphasis on advising companies, sponsors and promoters in cross-border M&A, buyouts, early and late stage venture capital and growth equity investments, PIPEs, joint ventures and other corporate transactions.
Mr. Pranav Mago will be joining Cyril Amarchand Mangaldas as a Director of International Arbitration. He will be initially based in Delhi, and will relocate to Singapore in early 2023.
A graduate of Amity Law School (IP University) in 2010, Mago has previously worked as Head (South Asia) for the Singapore International Arbitration Centre (SIAC). Prior to SIAC, he was
with the International Arbitration and Dispute Resolution team of UK Magic Circle firm Clifford Chance in Singapore, where he worked on several SIAC, ICC, LCIA and ICSID arbitrations and also advised clients on mediation matters.
He has been appointed secretary to the tribunal for SIAC arbitrations. In addition to arbitration matters, he has been part of a team to undertake global investigations of regula tory breaches and has worked on insolvency and restructuring matters.
“I am very excited to be joining CAM and becoming a part of a highly experienced arbitration team, as well as lend a hand in building the Singapore disputes profile for the firm. I am grateful to Mr. Cyril Shroff for entrusting me with this very exciting responsibility. I look forward to using my experience in the field of arbitration, as well as the valuable insight I gained in the field of litigation finance, to contribute to the contin uous growth of the international arbitration practice of the firm,” Mago said.
“Pranav joining us shows our commitment to the growth of our International Arbitration practice. His vast experience will also strengthen our Singapore presence and our capabilities to advise clients on cross border disputes. I welcome him on board and look forward to working with him,” said Cyril Shroff, Cyril Amarchand Mangaldas Managing Partner.
Seyfarth has added partner Stefano Beghi to its international department in Hong Kong. He joins from Gianni & Origoni, where he was a partner for almost 20 years in its Corporate/M&A department. Beghi specialises in M&A and corporate and commercial law. He has significant experience in assisting leading Italian, European and international companies, as well as fami ly-owned businesses, with such matters. Beghi also has extensive experience in handling major transactions in the Middle East and Asia. He brings significant cross-border experience in EMEA. He is sought out by business leaders who are looking for insightful advice on their commercial strategy in inter national markets. In addition to his involve ment in major commercial transactions, Beghi is known for being able to distil the key issues and provide pragmatic advice. Prior to joining Gianni & Origoni, Beghi worked at leading international advisory firms, including Andersen Legal (later Deloitte) and Ernst & Young.
DLA Piper has added Saba Al Sultani as a partner in its Intellectual Property and Technology group, based in Dubai. She joins from Cedar White Bradley, where she was a partner and Head of Trade Marks since 2018, having previously worked at Clyde & Co in Dubai for over seven years. Her appointment further strengthens the firm’s international IP ranks, adding to its growing footprint in the MENA region. Having been in the region for
over eleven years, Al Sultani joins with exten sive experience advising on both contentious and non-contentious IP matters across the entire region. She specialises in all aspects of trade mark, design, copyright and domain name matters, and has acted for some of the world’s biggest and best-known brands, including on major global and multi-jurisdic tional disputes.
K&L Gates has added Iris Leung as a corporate/capital markets partner in its Hong Kong office. She joins from Linklaters Hong Kong. Both US and Hong Kong-qualified, Leung has advised issuers and underwriters on a significant number of landmark listings of Chinese and multinational companies in Hong Kong, as well as in other major global financial markets. She has also advised bulge bracket investment banks and private equity and venture capital funds in innovative capital markets and M&A transactions, and with strategic investments.
Morgan, Lewis & Bockius has further bolstered its global investment management practice with the addition of Divya Thakur as a partner, who will be resident in the Singapore office as of 1 November 2022. She has over 15 years of broad-based industry experience representing institutional investors and managers, with particular focus on Southeast Asia and India. Thakur also advises on operational, management and
compliance issues relevant for both advisers and the funds they manage.
Slaughter and May will add Ralph Sellar as partner in Hong Kong, effective 1 November 2022. Sellar is currently International Counsel in the International Dispute Resolution Group of Debevoise & Plimpton in London, and he was based in the firm’s Hong Kong office from 2015 to 2022. He has acted on a range of commercial and financial services disputes and regulatory matters. His appoint ment will expand the firm’s Disputes and Investigations offering in Asia, and he will be working closely with the firm’s London Disputes and Investigations practice.
Morgan Lewis has continued to expand its global litigation and arbitration capabilities with the addition of Pardeep Khosa. He joins Morgan, Lewis & Bockius as a partner, and Morgan Lewis Stamford as a director, resi dent in the Singapore office. He has a broad practice covering commercial litigation and international arbitration, and corporate crime and investigations. Khosa regularly appears before the Singapore Courts, and has been involved in arbitrations under the major arbitral rules. He has acted for companies, high-net worth individuals, governments and statutory boards in complex and multi-ju risdictional disputes across various sectors, including financial services, energy, construc tion, engineering and infrastructure. Khosa has handled claims involving civil fraud,
and cases concerning corporate and share holder matters, joint ventures, professional negligence and defamation. His practice also covers investigations, regulatory and criminal matters, acting for both individuals and companies.
Withers has continued to build on its range of legal offerings in Tokyo with the addition of corporate partner Kazumitsu Goto , who focuses on inter national and cross-border corporate M&A matters. He joins from TMI Associates, where he was a partner. Goto brings vast experience representing Japanese and international clients in cross-border M&A, among other legal matters. He handles public and private M&A matters for strategic and private equity clients, cross-border joint ventures, and global capital markets trans actions, including advice on financial regu lation. In recent years, Goto has represented several leading Japanese companies and venture capital funds in their investments in and acquisitions of start-ups in Japan and overseas. In addition, he serves as external counsel for multiple early stage businesses, for which he provides advice on compliance matters and on their capital raising activities.
Orrick has added renewables authority Karthik Kumar as a partner in Singapore. A project development, acquisition and finance advisor with deep experience in renewable energy, Kumar has two decades of experience acting for developers, sponsors, borrowers
and financial institutions on high-profile renewable energy and infrastructure projects in the Asia-Pacific region. He brings a strong focus on the renewable energy sector, with extensive experience in solar, onshore and offshore wind, biomass and waste-to-energy projects, and experience on projects in India, Singapore, Taiwan, Vietnam, Australia, Malaysia, Thailand and China, among other countries. He joins from Jones Day.
Pinsent Masons has added corporate energy and tech nology partner Joni Henry in Sydney, Australia. Henry is a highly experienced corporate and commercial lawyer advising public and private complex M&A, joint ventures, high net worth advisory work and corporate governance, with particular focus on the energy, technology, science and industry sectors. She will boost the firm’s Asia Pacific-based corporate expertise, and will collaborate with teams across the firm’s network advising on domestic Australian and multinational mandates. Henry joins from PwC, where she was a partner for six years leading the corporate advisory group, as well as heading up the accountancy firm’s legal teams in Sydney, Perth and Brisbane.
Mangaldas has added Jian Johnson as a partner in its financing practice to be based out of the Mumbai office. Prior to joining the firm, Johnson worked in the corporate legal group at ICICI Bank for 13 years. He has serviced the project
finance, markets, treasury, strategy, corporate centre and securitisation verticals at ICICI Bank, and advised on several marquee trans actions, including the first IPO of Indian life and general insurers. Johnson’s experience spans the areas of derivatives, financial services M&A, financial regulatory, project finance and securitisation. He graduated from National Law School of India University Bengaluru in 2009.
Baker McKenzie has continued to grow its bench strength and capabilities in Hong Kong by hiring veteran arbitrator Ronald Sum JP as partner. He will bring associates Plato Cheung and Beryl Wu with him. Sum joins from Addleshaw Goddard, where he led its arbitration practice in Asia. His practice covers all areas of dispute resolution, specialising in Chinarelated matters, international arbitration, cross border disputes, complex commercial disputes, sports-related disputes, insurance and reinsurance. Sum is highly regarded in the international arbitration arena, and has acted as both counsel and arbitrator in administered arbitration proceedings in Hong Kong, Mainland China, Singapore, Australia, London and the US.
In addition to being an accredited arbitrator and mediator of various institutions, including the Hong Kong International Arbitration Centre, China International Economic and Trade Arbitration Commission and Shanghai International Economic and Trade Arbitration Commission, he also sits on the Hong Kong Government Advisory Committee on the
Promotion of Arbitration and the Hong Kong Steering Committee on Mediation. He is also an Investor State Mediator under the China and Hong Kong Closer Economic Partnership Agreement. Sum is qualified as a solicitor in Hong Kong, England and Wales, and Australia, and has passed the Greater Bay Area legal professional exam.
Slaughter and May has appointed Benita Yu as Senior Partner of the firm’s Hong Kong office. She will take up the role on October ,1
retirement of the current Hong Kong Senior Partner Peter Brien.
Yu joined the firm in 1994, and has been a Partner since 1996. She is considered one of Hong Kong’s most prominent corporate lawyers, and has represented major corpo rates, Chinese state-owned enterprises, international issuers and leading investment banks with high profile securities, M&A and corporate finance transactions.
Allen & Gledhill has advised Public Utilities Board (PUB) on the establishment of a S$10 billion (US$7b) multicurrency medium term note programme and issue of US$800 million 3.43 percent green notes due 2052. The notes will be used to finance or refinance new or existing eligible green projects under PUB’s Green Financing Framework. Partners Margaret Chin, Fabian Tan and Sunit Chhabra led the firm’s team in the transaction.
Allen & Overy has advised Infinigate Group, a pan-European value-added distributor (VAD) of cybersecurity solutions and a portfolio company of private equity firm Bridgepoint, on its merger with StarLink. This is the latest important step in Infinigate’s expan sion strategy, which will extend its reach to more than 50 countries, with offices in more than 30 countries. Founded in 2005 and based in Dubai, StarLink is a market-leading VAD in cybersecurity, secure cloud and secure networking in the Middle East and Africa. It employs more than 300 people across eleven countries, managing a portfolio of 60 vendors and 1,500 resellers. Headquartered in Rotkreuz, Switzerland, Infinigate offers
state-of-the-art security solutions from more than 60 vendors through its European network of more than 10,000 partners, which includes resellers, integrators and consulting companies. Founded in 1996, Infinigate employs approximately 500 staff with a pan-European business in markets including Germany, Switzerland, Austria, the UK, Sweden, France, the Netherlands, Belgium, Denmark, Finland and Norway. Partners Dr Roman Kasten (Frankfurt) and Dr Nils Koffka (Hamburg), supported by partners David Foster (Dubai), Hugh Hollman (Brussels), Lydia Challen (London) and Robin Harvey (London), led the firm’s team in the transaction.
AZB & Partners is advising Reliance Industries, via its subsidiary Reliance Strategic Business Ventures, on its Rs16.7 billion (US$204m) acquisition of 50.1 percent equity stake in Sanmina SCI India, the Indian arm of Sanmina Corporation. The Competition Commission of India approved the deal on August 1, 2022. Partner Gaurav Bansal is leading the transaction, which is yet to be completed.
Baker McKenzie has advised on the successful offering and listings of Global Depositary Receipts (GDR) on the SIX Swiss Exchange of four Chinese companies GEM, Gotion High-tech, Keda Industrial Group and Ningbo Shanshan. The four companies are the first to issue GDR in the Swiss capital market through the ChinaSwitzerland Stock Connect, after China Securities Regulatory Commission reformed the Stock Connect scheme and the Swiss
regulators recently finalised the revised SIX listing rules in late July 2022. The firm fielded a cross-border team from China, Zurich and London to provide seamless, comprehensive advice in the four land mark transactions. The China team was led by partners Christina Lee and Wang Hang, supported by partner Thomas Tarala. The Zurich team was led by partner Matthias Courvoisier, while the London team was led by partners Adam Farlow and Simon Porter.
Bird & Bird ATMD has acted for East Ventures, a pioneering and leading sector-ag nostic and Indonesia-focused venture capital firm, as the lead investor on the US$26 million Series A fundraising round of Gokomodo, an Indonesian agriculture supply chain platform. This transaction represents one of the largest Series A investment amounts in Indonesia to date, and enables Gokomodo to assist agribusiness companies and farmers in parts of Indonesia, where digital infrastruc ture is lacking, to reach out to their customers through technology. Singapore corporate partner Marcus Chow led the firm’s team in the transaction.
Christopher & Lee Ong, member firm of Rajah & Tann Asia, has advised Culture Convenience Club and Sojitz on establishing the first Tsutaya bookstore in Malaysia. The end-to-end assistance included advising on negotiations with Pavilion Trading Enterprise to establish Tsutaya bookstore as a franchised store, as well as the franchisor and franchisee registration, joint venture agreements, supply agreements
and financing agreements relating to the franchise. Partner Yau Yee Ming led the firm’s team in the transaction.
Clifford Chance has advised Sinosteel Group on the multi-jurisdictional merger control filings for its acquisition of control of Samancor Chrome. The transaction obtained antitrust clearance with conditions in South Africa. Sinosteel is a state-owned enterprise engaged in developing and processing of metallurgical mineral resources, trading and logistics of metallurgical raw materials and products, and related engineering technical service and equipment manufacture. South Africa-based Samancor Chrome is one of the largest ferrochrome producers in the world. Partner Yong Bai led the firm’s team in the transaction, while Bowmans advised on South African law.
Cyril Amarchand Mangaldas has advised abrdn (Mauritius Holdings) 2006 on the secondary trade by abrdn in HDFC Life Insurance. abrdn is one of the promoters of HDFC Life, and has undertaken a multiple share sale after the IPO of the company. As a part of the transaction, abrdn undertook the sale via share sale on the screen-based trading of BSE for approximately Rs24.34 billion (US295.7 $m). The transaction involved a sale by abrdn of 43 million equity shares, with face value of Rs10 (US$0.121) each, of HDFC Life, representing approximately two percent of HDFC Life’s total issued and paid-up equity share capital. BofA Securities India acted as the broker. Capital markets partner Abhinav Kumar, supported by taxation head partner SR Patnaik and partner Kunal Savani, led
the firm’s team in the transaction, which was signed on 13 September 2022 and closed on 15 September 2022.
Dentons Rodyk has successfully represented Singapore-listed PNG Sustainable Development Program (PSDP) before the Singapore Court of Appeal on the dismissal on 15 September 2022 of an appeal against the High Court’s (General Division) decision in Ok Tedi Fly River Development Foundation Ltd and others v Ok Tedi Mining Ltd and others [2021] SGHC 205 to strike out the US$1.5 billion claim on behalf of some 150,000 affected by the environmental damage in Papua New Guinea’s (PNG) Western Province. The claim against PSDP was mounted on the basis that PDSP owed fiduciary duties to the affected communities, having allegedly undertaken to act in their interest. It was also asserted that some US$1.5 billion earmarked for the sustain able development of PNG was held on trust for them. PSDP maintained that its mission was to promote sustainable development for all of PNG, as enshrined in the contracts that the company had entered into with the Independent State of Papua New Guinea and mining company BHP, and remained the exclusive preserve of the contractual counterparties. Litigation practice co-head Mark Seah, supported by partners Andrea Gan and Martin See, led the firm’s team on the matter. TSMP Law, led by partner Adrian Tan and Dr Tang Hang Wu, represented the appellants.
Gide has advised Adeo, the European leader and third largest global player in the home improvement and DIY market, on the sale
of 100 percent of equity in Leroy Merlin Consulting (Beijing), and the transfer of its property in Beijing to Ministorage Investment V, a Hong Kong-registered company operating a self-storage business in Asia. Partners Guo Min and David Boitout led the firm’s team in the transaction.
Harneys has acted as Cayman Islands counsel to AC Ventures on the establishment of its Fund V, which is structured as a Cayman Islands exempted limited partnership. Fund V is a US250 $ million fund for Southeast Asia early stage startups with a focus in the consumer technology, B2B, digital media enablers, fintech and SME sectors. Investors span across Asia, the US, the Middle East and Europe, including Alibaba. Founded in 2014, AC Ventures has a portfolio of over 120 investments in Indonesia and the rest of Southeast Asia, including noteworthy companies Xendit, Carsome, Stockbit, Ula, Shipper and Aruna. Its team is mostly based in Indonesia, but also recently set up offices in Singapore and Malaysia. Asia Head of Funds and Regulatory Maggie Kwok led the firm’s team in the transaction.
JSA has represented Singapore Telecommunications (Singtel) on its sale of an equity stake in Bharti Airtel to Bharti Telecom. Singtel eventually sold approxi mately 3.3 percent of total equity shares of Bharti Airtel for approximately S$2.54 billion (US$1.76b). Bharti Airtel is a public limited company incorporated in India, and its shares are listed and traded on India’s stock exchanges. Bharti Airtel is a global commu nications solutions provider with over 491 million customers in 17 countries across South Asia and Africa. It has four business segments, namely mobile services, home services, digital television services and Information and Communication Technology (ICT) business services. Partner Vikram Raghani, supported by Anand Lakra, led the firm’s team in the transaction.
Khaitan & Co has advised the Lighthouse Canton group on setting up their first venture debt fund in India, which will primarily invest in venture debt instruments and make further investments in such equity and equitylinked instruments of portfolio entities for maximising returns for investors. The fund proposes to raise investments of Rs5.5 billion (US$69m), with an additional green shoe option of accepting Rs5.5 billion (US$69m), totalling to a proposed fund size of Rs11 billion (US$138m). Partners Siddharth Shah and Vivek Mimani led the firm’s team in the transaction.
Kudun and Partners has represented Nature Best Food, the first manufacturer and distributor of seaweed in Thailand, on the approximately β250 million (US$6.6m) sale,
via entire business transfer, of its seaweed processing and distribution business to TS Food Holding, a subsidiary of Thai Sugar Terminal, a provider of rental services for port-warehouses.
Latham & Watkins has advised SATS on its proposed acquisition of Worldwide Flight Services (WFS), the world’s largest air cargo handling firm, from an affiliate of Cerberus Capital Management. The transaction values WFS at an enterprise value of €2.25 billion (US$2.24b), with an equity purchase price of €1.18 billion (US$1.8b). SATS is Asia’s leading provider of food solutions and gateway services. With operations in over 60 locations and 14 countries across the Asia Pacific, UK and the Middle East, SATS has been listed in Singapore since May 2000. Founded in 1984, WFS is the world’s largest air cargo logistics provider, and one of the leading providers of ground handling and technical services, with annual revenues of €1.8 billion (US$1.8b). Its 32,300 employees serve over 300 customers at 168 major airports in 17 countries on five continents. The combined group is set to become a global leader in the aviation services sector, with more than 200 stations in over 20 countries, covering trade routes responsible for over 50 percent of all global air cargo volume. The proposed transaction is expected to complete in March 2023, subject to receiving the requisite SATS shareholder and regulatory approvals. Following the successful completion of the transaction, WFS will become a wholly-owned subsidiary of SATS. Singapore partner Sharon Lau, supported by partners Michael Sturrock,
Timothy Hia (Singapore), Damara Chambers (Washington DC), Joshua Holian (San Francisco), Luca Crocco (Brussels), Max Hauser (Frankfurt), Rob Moulton (London), Sarah Gadd (London), Jane Greyf (New York), Charles-Antoine Guelluy (Paris), Quentin Gwyer (London), Paul Davies (London), Christopher Norton (Orange County) and Karl Mah (London), led the firm’s team in the transaction.
Maples and Calder has acted as Cayman Islands counsel to Tencent Music Entertainment Group (TME) , a company primarily listed in New York, on its secondary listing, via introduction of its Class A Ordinary Shares, in Hong Kong, which closed on 21 September 2022. TME is the largest
online music entertainment platform in China, in terms of monthly active users, and offers online music and social enter tainment services through its four major product brands – QQ Music, Kugou Music, Kuwo Music and WeSing. Partner Karen Zhang Pallaras led the firm’s team in the transaction, while Davis Polk & Wardwell advised on Hong Kong and US laws, and Han Kun Law Offices advised on Chinese law. The joint sponsors, JP Morgan Securities (Far East) and Goldman Sachs (Asia) , were advised by Freshfields Bruckhaus Deringer as to Hong Kong and US laws, and by CM Law Firm as to Chinese law.
Milbank (Hong Kong) has advised Union Bank of the Philippines on its acquisition, through a highly competitive auction process, of the consumer banking business of Citigroup in the Philippines. The transaction is significant in the development of UnionBank’s retail banking business. In addition to expanding its customer base by approximately one million customers, the investment is anticipated to advance UnionBank’s credit-card and banking business in the higher-end segment of the consumer market. UnionBank is a leading universal bank in the Philippines. Citigroup is the largest foreign commercial bank in the Philippines providing corporate and investment banking services, treasury and trade solutions, markets and securities services, consumer banking services and business process outsourcing services. Hong Kong global corporate partner Neeraj Budhwani and Hong Kong global capital markets partner James Grandolfo led the
firm’s team in the transaction, which was valued at more than US1 $ billion.
Paul Hastings has advised China International Capital Corporation Hong Kong Securities and CMB International Capital, as the joint sponsors and the joint global coordinators, on the global offering and listing of Dingdang Health Technology Group in Hong Kong. Dingdang Health Technology is a service provider in providing express digital
healthcare services in China. The company has been facilitating the transformation and upgrade of China’s healthcare industry by on-demand pharmaceutical retail and medical consultation, primarily with online-to-offline solutions, including operations related to its online platforms, offline smart pharma cies and express delivery service. Global partner and chair of Greater China Raymond Li and corporate partners Vincent Wang and Chaobo Fan led the firm’s team in the transaction.
Pinsent Masons MPillay has advised Ikigai Ventures, a company acquiring target businesses that have a strong positive social impact and/or environmental, social and governance strategy, on its listing in London. Singapore-based Asia Pacific corpo rate head Nicholas Hanna and Singapore corporate co-head Mark Tan led the firm’s team in the transaction.
Rajah & Tann Singapore is acting as Singapore counsel to Keppel Infrastructure Trust on its S191.6 $ million (US133 $m) joint venture with Keppel Renewable Investments to invest S233.6$ million (US162.3 $m) in a diversified portfolio of operational and pipeline onshore wind projects across Norway, Sweden and the UK, sponsored by Fred Olsen Renewables. Partners Danny Lim and Penelope Loh are leading the firm’s team in the transaction.
S&R Associates has represented DSG Consumer Partners, an existing investor in StayVista, a manager of luxury villas and
holiday homes in India for vacation rentals, on the Rs400 million (US$5m) Series B funding round also involving Capri Global and certain existing investors. Partner Prachi Goel led the firm’s team in the transaction.
Simpson Thacher has represented the underwriters on the IPO and Rule 144A and Regulation S offering by Zhejiang Leapmotor Technology. Hong Kong-listed Leapmotor offered approximately 130.8 million H shares in its global offering, prior to the exercise of the underwriters’ overallotment
option. The base offering size is HK$6.279 billion (US$800m). JP Morgan, CICC, Citi and CCB International acted as joint sponsors, overall coordinators, joint global coordi nators, joint book-runners and joint lead managers. Leapmotor is a smart EV company based in China, primarily focusing on the mid- to high-end segment of China’s NEV market. Founded in 2015, Leapmotor is the only pure-play EV company based in China, and one of the few NEV companies in the China market (including domestic and inter national automakers that sell NEVs in China) with a full-suite of R&D capabilities. Hong Kong partners Christopher Wong, Yi Gao and Marjory Ding led the firm’s team in the transaction.
Slaughter and May Hong Kong has advised Hong Kong-listed Tencent Holdings on the secondary listing, via introduction in Hong Kong, of its subsidiary, Tencent Music Entertainment Group (TME). The joint sponsors to TME’s secondary listing are JP Morgan Securities (Far East) and Goldman Sachs (Asia). Listed in Hong Kong since June 2004, Tencent is one of the largest internet companies in the world, offering internet value-added services through the operation of communications and social services, games and other digital content platforms, as well as online advertising, fintech, cloud and other business services for enterprise clients. TME has been listed in New York since December 2018. Hong Kong part ners Peter Brien and Jing Chen led the firm’s team in the transaction.
Trilegal has acted as sole advisor to Prosus and PayU India on securing an unconditional approval from the Competition Commission of India on the proposed acquisition of IndiaIdeas.com (BillDesk). This was an acquirer only filing made by PayU India, with the firm acting as the sole counsel for PayU. This is the largest acquisition in the digital payments sector in India. The combined entity will be India’s largest digital payments entity, and among the top ten online payments providers globally. The CCI issued a show-cause notice with their prima facie competition concerns, and sought an
explanation why a detailed investigation in Phase II should not be undertaken. The firm successfully convinced the CCI to approve the transaction in Phase I without any remedies. This is the first and only instance of the CCI clearing the transaction unconditionally (without any remedies) after issuing a show-cause notice. Partner and competition law national head Nisha Kaur Uberoi, supported by partner Gautam Chawla, led the firm’s team in advising the client. AZB & Partners and Shardul Amarchand Mangaldas represented the seller shareholders on M&A aspects.
Withers has represented MUFG Bank and Crédit Agricole Corporate and Investment Bank Tokyo Branch on their provision of a loan facility to AirTrunk to finance the hyperscale data centre operator’s efforts towards a sustainable future. The facility is the first data centre green loan in Japan, and will be used to finance the development of Airtrunk’s newest hyperscale data centre in Tokyo. AirTrunk’s
latest data centre, named TOK2, will deliver 110MW of capacity in western Tokyo to complement the existing 300MW TOK1 campus that serves eastern Tokyo. As the eighth data centre in AirTrunk’s platform, TOK2 is built across more than 4.6 hect ares of land, and powered by high-voltage substations. Japan partners Gerald Fujii and Naoki Ueyama, supported by partner Steven Wheeler, led the firm’s team in the transaction.
WongPartnership is acting as Singapore counsel to the sellers on the 1.3 € billion (US1.26 $b) acquisition of Worldwide Flight Service by SATS. Managing partner Ng Wai King and partners Alvin Chia, James Choo and Kevin Ho are leading the firm’s team in the transaction.
A full list of latest deals can be viewed online on www.inhousecommunity.com
From London and The Hague, to Singapore and Hong Kong –Liu leverages on his international experience as he forges a new path as independent arbitrator
CAN YOU PLEASE SHARE WITH US A LITTLE OF YOUR BACKGROUND PRIOR TO JOINING THE HONG KONG INTERNATIONAL ARBITRATION CENTRE (HKIAC), AND WHAT YOUR TIME SPENT THERE WAS LIKE?
I started my career at the Singapore International Arbitration Centre. I then did two internships at the High Court of Hong Kong and the Permanent Court of Arbitration in The Hague. After completing the internships, I joined Allen & Overy (A&O)’s Hong Kong office as part of their Global Arbitration Group. During my time at A&O, I was appointed as a member of the HKIAC Rules Revision Committee which was tasked with drafting the 2013 HKIAC Administered Arbitration Rules. With that experience, I joined the HKIAC in 2014 and began my eight years of journey at the institution.
I had a hand in many aspects of HKIAC’s operations including case management super vision, rules drafting, corporate governance and business development. There was no fixed description of my role at the HKIAC and my work every day was different and inter esting. I spearheaded many of the HKIAC’s
initiatives and drafted some of their practice notes and guidelines. It was an invaluable opportunity to gain insights on the institu tion’s internal management and practice and to work with many talented people.
FOUND THE TRANSITION THUS FAR?
CAN YOU TELL US A LITTLE ABOUT YOUR NEW PRACTICE?
Having worked in private practice and arbitral institutions, and acted as tribunal secretary in numerous cases, I wanted to start a new career as an independent arbitrator. I have a lot of expe rience working with very senior and experienced arbitrators and have seen how they manage proceedings and tackle complex issues. I think I now have sufficient experience to run cases and determine disputes as an arbitrator.
I am fortunate to have received a lot of support and blessings from my family, friends and colleagues for my transition into an arbitrator. I have been travelling since I left the HKIAC and enjoying the flexibility of my new role.
I accept appointments as an arbitrator or domain name panelist. I have experience in disputes under a variety of agreements including sale of goods contracts, share purchase agreements, shareholders’ agree ments, joint venture agreements, banking and
financial documentation, manufacturing and distributorship agreements, energy contracts and investment contracts under multiple governing laws. I am able to run proceedings in English, Chinese and both languages.
The COVID-19 pandemic has had a profound impact on international arbitration prac tice. Although the recent relaxation of travel restrictions in most countries may have reduced the impact to some extent, some of the procedural adaptations may outlast the pandemic.
I think the most obvious impact is the wider use of technology in arbitra tion. Various technology tools have been used in response to challenges presented by the pandemic. The most notable change I have seen is the increased use of virtual hearings for more cost-efficiency and greater procedural flexi bility. At the beginning of the pandemic, there was a degree of scepticism towards virtual hearings among some parties, counsel and arbitrators. As the pandemic-related restric tions have forced users to explore alternatives to in-person hearings, there is a clear shift in attitude towards using virtual hearings for both procedural and substantive hearings.
Arbitral institutions, arbitrators and practi tioners have also shown a desire to embrace other technologies including electronic filings, electronic bundles, online document storage and technology-assisted document review. Multiple practice notes and guidelines have been published to encourage the use of technology and to address due process and data protection issues in arbitration.
I expect international arbitration to be more streamlined and paperless with greater use of technology and reduced environmental impact in the years to come.
Against this background, I expect interna tional arbitration to be more streamlined and paperless with greater use of technology and reduced environmental impact in the years to come.
The pandemic has led to business interrup tions in various sectors and given rise to a range of new disputes. I have seen COVID-19 being invoked as the basis for running certain legal arguments or relying on certain contrac tual provisions.
Material Adverse Change (MAC) clauses have been particularly relevant to M&A transac tions. Buyers may seek to invoke the MAC clause to renegotiate certain terms of the contract before completion. There have also been disputes concerning best or reasonable endeavour clauses. A common question arising under such clauses is whether a failure to perform in light of difficult COVID-19 induced conditions is excusable if the contract only requires best or reason able endeavours.
The issue of illegality in the necessary place of performance may also arise in the context of the pandemic. A party may argue that its performance can be excused since perfor mance becomes unlawful under COVID-19 related emergency legislation in the necessary place of performance. COVID-19 has also commonly been invoked as part of force majeure arguments to seek suspension or extension of time for performance or even termination of the contract. In some cases, the doctrine of frustration has been invoked on the basis of a significant change to a mutually agreed state of affairs, without fault on either side, leading to the impossibility of agreed performance or mutual purpose.
COVID-19 may affect the calculation of damages as well. One question arising there may be that should damages be assessed at the date of the breach, hearing or award, or another date? The determination of the appropriate date for assessing damages may have enor mous financial consequences where a party presents claims based on Net Present Value or Discounted Cash Flow calculations which are highly sensitive to market projections.
Lastly, the pandemic has led to an increase in corporate insolvencies, making it relevant to consider the effect of insolvency on arbitra tions involving insolvent parties.
Fortunately, the pandemic has not affected my work as arbitrator too much, as I launched my arbitrator practice at a time when I could travel again to many places without restrictions and I became used to remote working. While COVID-19 related arguments might have presented “new” challenges to many tribunals at the start of the pandemic, some arbitrators including myself have had
more experience dealing with procedural and substantive issues relating to COVID-19.
I suspect that a possible challenge for me is that some users tend to think of me only for appointments in HKIAC or Hong Kong arbitra tions. While I have handled many such arbitra tions, I also have experience in disputes under other procedural rules (e.g., the ICC, ICSID, LCIA, SIAC and UNCITRAL Rules) and seated in other jurisdictions (e.g., London and Singapore).
I foresee three key trends in Hong Kong arbitration.
More online arbitrations: Hong Kong introduced multiple initiatives to facilitate arbitral proceedings to be conducted online during the pandemic. These include the establishment of eBRAM to provide an online dispute resolution platform, the launch of the Hong Kong Legal Cloud for data storage services, and the HKIAC’s introduction of its virtual hearing services and Case Connect as a centralised online document management system. As Hong Kong continues build to its infrastructure to become a high-tech and innovation hub, we can expect more tech nology tools to be made available to support online arbitrations in Hong Kong. I think these tools are likely to receive acceptance by legal professionals in Hong Kong who have adapted well to working online during the pandemic.
More disputes with Chinese elements: Hong Kong has long served as a premier arbitration centre for China-related disputes and has benefited from several recent measures to strengthen this status. In particular, the arrangement on court-ordered interim measures and the supplemental arrangement
on mutual enforcement of arbitral awards between Hong Kong and Mainland China provide a strong incentive to select Hong Kong as the venue for disputes with Chinese connections. In addition, wholly-owned Hong Kong enterprises (WOKEs) in Qianhai, Shenzhen can now agree to use Hong Kong law in civil and commercial contracts even in the absence of foreign elements under a pilot scheme. It is anticipated that this scheme will be extended to cover the entire Greater Bay Area to enable WOKEs to adopt Hong Kong law and choose arbitration seated in Hong Kong for contracts and disputes without foreign elements. With these arrangements in place and Chinese parties’ general acceptance of Hong Kong as a seat of arbitration, I expect to see more disputes involving Chinese parties or overseas entities controlled by Chinese companies to be arbitrated in Hong Kong.
More funding options: Hong Kong has recently passed a bill to permit certain agreements between clients and their lawyers using outcome-related fee structures for arbi tration and related proceedings. Once the bill becomes law (possibly later this year), lawyers may charge for arbitration-related work on the basis of three types of arrangements, namely, conditional fee agreements, damages based agreements, and hybrid damages based agreements. These new arrangements, together with third party funding which is already permitted in Hong Kong arbitra tion, would provide more funding options and pricing flexibility to users of Hong Kong arbitration.
“It always seems impossible until it’s done”, Nelson Mandela.
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7. FINALLY, DO YOU HAVE ANY MOTTO/ WORDS OF WISDOM THAT YOU HAVE FOUND TO BE MOTIVATIONAL AS YOU’VE FORGED YOUR CAREER PATH THAT YOU WOULD LIKE TO SHARE?
Security is the obvious and primary concern when using email or PDFs to disseminate sensitive board infor mation (for an in-depth discussion, see our e-book on email security). But there are other worrisome consequences that arise when resorting to email and PDFs for board communications. All of which hinder, sometimes to a significant degree, the ability of the board to adequately prepare, remain engaged, and conduct productive board meetings.
In this article, we discuss some of the pitfalls of using email and PDFs for board communi cations, and highlight how board portals can address these.
For purposes of discussion, we can broadly define security as restrictive, controlled access to systems, processes or data. Privacy, on the other hand, has more to do with owning and controlling data.
Email inboxes have always been prone to hacking. Since boards possess mission-critical and sensitive organisational data, they have become prime targets for cybercrimes — such as whaling. Board members are inadvertently
tasked with ensuring that they have adequate digital security measures in place to limit their exposure to these vulnerabilities.
While most personal email providers pride themselves on being secure, there can be ques tions around data ownership and data gover nance. After all, information is stored in servers under another party’s control. In this light, data privacy policies are always worth a second look, especially when it comes to data collection, tracking, transparency, third-party access and determining exactly how information is used.
The best board portals are designed and developed with security considerations from the get-go. It remains in focus across the product’s development lifecycle. Board portals implement multi-defence frameworks to prevent data breaches and protect board communications. Email security can often fall short in this regard.
Board portals, such as Boardlogic, adhere to strict Data Privacy Policies. It serves organisa tions well to determine whether their board
portal providers meet the standards of data privacy-certification bodies. Praxonomy, for instance, is a member of the Verasafe Privacy program. Membership to this program ensures that personal data processed within the Boardlogic application follows external data governance and data security standards set by Verasafe’s Privacy Program Certification Criteria. It requires that participants main tain a specific standard for data privacy and implement best practices pertaining to notice, onward transfer, choice, access, data quality, recourse and enforcement.
(As a side note, pay close attention to where the data centres of board portal providers are located. For Boardlogic, all client data resides in secure data centres in Amsterdam. It was a strategic choice to ensure that client data is protected by GDPR, and any notices served on Praxonomy for the production of data will have to be subject to Dutch law.)
Security and privacy of client data and commu nications are paramount. It’s fair to say that most board portal providers recognise the criticality and importance of the information they hold.
In the UK, the Companies Act (2006) requires boards to maintain meeting minutes for at least a period of 10 years from the date of the meeting.
Retaining PDFs on one’s local drive or storing information on email inboxes are not ideal for document retention purposes. In the event that a device gets lost (or becomes obsolete), board materials and workflows are compro mised. It becomes exponentially difficult to comply with audits and regulatory or legal requirements.
With board portals, boards can adopt and implement an effective document reten tion strategy that meets internal standards and external requirements. Board portals ensure board documents are securely stored, retained or archived for audit, historical tracking, transparency, and compliance purposes. These are not mere housekeeping tasks, but also play into the aspects of good corporate governance.
Multiple and constant exchanges of emails can lead to directors and board members being inundated with information — or “informa tion overload.” Moreover, given the number of emails that go back and forth in between board meetings, there is the risk of pertinent information being overlooked or getting lost. Email and PDFs can disrupt board effi ciency and the board’s ability to locate, review, and organise meeting information.
As a centralised repository for board meeting information, board members can access files and documents necessary for their review at any time and from anywhere. Board portals are a one-stop shop for directors to obtain the materials they need for the board meeting. Gone are the hassles of piecing infor mation found in emails together. The time spent on reviewing and preparing for board meetings is significantly reduced.
Some board portals have in-app messaging functionalities which minimise (or eliminate) the need for email communications. This streamlines communication amongst board members, facilitating better collaboration and decision-making.
Those who have yet to adopt board manage ment software usually resort to disseminating large PDF files as their board book/board packs via email. There are inherent problems to this. First, there is the email security concern. Second, it shifts the monitoring and management of version control of the PDF to board members. Updates made to the board packs can get lost in lengthy email threads. A worst case scenario is that a director invests a good amount of time reviewing the wrong version of the board pack.
One of the key features of board software is the digital board pack. With the digital board pack, updates and changes to board books can be made on-the-fly and these will be reflected instantly. Board members have access to the latest version of the board pack at all times, without multiple PDFs clogging their inboxes.
Emails and PDF use will always be conve nient. But the risks they present for board communications will always outweigh the bene fits. Board portal communications empower boards: administrative and security burdens are minimised and board engagement levels are sustained. Most importantly, a complete focus on board governance duties is restored.
For more, please contact: tim@praxonomy.com
inboxes have always been prone to hacking. Since boards possess mission-critical and sensitive organisational data, they have become prime targets for cybercrimes — such as whaling.
Shenzhen is well-known as one of the most significant engines for developing the Guangdong-Hong Kong-Macao Greater Bay Area (the “GBA”). Bearing in mind the mission of building an international arbitration hub in the GBA, this innovative city has been making the most of “One Country, Two Systems, and Three Jurisdictions” to continuously promote the integration of rules and mechanisms within in this area.
Shenzhen and Hong Kong are two cities in different jurisdictions but connected by a river, both located in the GBA. The Shenzhen Court of International Arbitration (also known as the South China International Economic and Trade Arbitration Commission, here inafter “SCIA”), having a 40-year history, is an international arbitration institution that is rooted and grounded in the GBA. In 2019, the SCIA established the South China International Arbitration Center (Hong Kong) (“SCIAHK”) in Hong Kong. Despite a narrow strip of water that connects two different
jurisdictions, “Bi-City Two Institutions” has been formally set up with a view to promoting cross-border interactions.
Ms. Chan Man-ki, MH, JP, a Hong Kong deputy to the National People’s Congress and a Hong Kong arbitrator of the SCIA, often visited the office of the SCIA at the Shenzhen Stock Exchange to attend case hearings before the outbreak of the COVID-19 pandemic. After concluding the hearing of a case and returning to Hong Kong, she shared her excitement on social media at night, posting the message that “By taking the high-speed rails, it took me only 14 minutes to get to Futian Station in Shenzhen from West Kowloon in Hong Kong. After completing a half-day case hearing at SCIA, I could immediately return to Hong Kong. This is even more convenient than commuting within Hong Kong!”
Arbitration might be the area in which the cooperation between two different juris dictions faces the least obstacles and starts at the earliest. The solid foundation for arbitration cooperation between Shenzhen and Hong Kong could be traced back to
the early 1980s. Mr. Huen Wong, BBS, JP, the former Chairman of the Hong Kong International Arbitration Centre (“HKIAC”) and Chairman of the Inter-Pacific Bar Association, Ms. Elsie Leung Oi-sie, GBM, JP, the first Secretary for Justice of the Hong Kong Special Administrative Region (“HKSAR”), and Mr. Anthony Neoh, QC, SC, JP, former Chairman of the HK Securities and Futures Commission all serve as members of the SCIA’s Council and SCIAHK’s Board of Directors. They are deeply involved in the governance of the SCIA and need to travel between Shenzhen and Hong Kong frequently. Mr. Wong, Ms. Leung, and Mr. Neoh are legal heavyweights in Hong Kong, and all of them have very good reputa tions amongst the international arbitration community. Over the years, they have engaged in handling many Hong Kong-related cases in Shenzhen as arbitrators or as expert witnesses on Hong Kong law.
Ms. Elsie Leung Oi-sie, GBM, JP has always been full of hope, believing that the ShenzhenHong Kong arbitration cooperation is prom ising. She once said, “What we can’t do in Hong Kong or in the Chinese Mainland can be tried on a pilot basis in Shenzhen, where legal services are very good.”
Founded 39 years ago, the SCIA is the first arbitration institution in the GBA. It is also the first Chinese arbitration institution which began appointing overseas arbitra tors. The new Panel of Arbitrators launched by the SCIA in February 2022 includes 1547 arbitrators from 114 countries and regions. Among them, 151 arbitrators are from Hong Kong. The SCIA has gathered many Hong Kong legal professionals. The former Secretaries for Justice of the HKSAR have all served as arbitrators of the SCIA, further promoting the arbitration cooperation between the two cities.
If we can say that the arbitration cooperation between Shenzhen and Hong Kong has started a new era of the “Two-Lane Road”, the SCIAHK will play a brand new role in promoting the rules integration between the two cities.
In international economic and trade activities, the parties to international or cross-border disputes generally prefer to resolve such disputes in their home jurisdiction. When the parties are at a deadlock as to the selection of the seat of arbitration, a third place is often a good choice. However, an arrangement that complies with the international prevailing rules is required to enable the third place to be accepted as the seat of arbitration by the parties. The Arbitration Rules of the South China International Arbitration Center (Hong Kong), which came into effect on 1 May 2022, have been formulated by reference to the United Nations Commission on International Trade Law Arbitration Rules and by fully taking into account the latest developments of modern international arbitration rules. Thus, the rules are widely appraised by the domestic and foreign legal communities. Such rules were drafted by Prof. Peter Malanczuk, a well-known German professor and a member of both the SCIA’s Council and the SCIAHK’s Board of Directors. Prof. Malanczuk is the former Chief Professor and Dean of the Department of International Law at the University of Amsterdam. During his long-term work in Hong Kong and Chinese Mainland, he served as the Dean of the School of Law of the City University of Hong Kong, Professor of the Peking University School of Transnational Law, and Adjunct Professor of the Faculty of Law of the University of Hong Kong.
According to Ms. Kan Wai Min, a member of the Legislative Council of Hong Kong and
general counsel of Bank of China (Hong Kong) Limited, the governance model and arbitration rules of the SCIA and the SCIAHK fully reflect the participation of Hong Kong people. The rules have an additional edge because of incorporating the Hong Kong common law, making foreigners have full confidence in choosing China as the seat of arbitration.
“Two-Lane Road for Bi-City Two Institutions” has given birth to the new “Shenzhen & Hong Kong” arbitration model. Through simulta neously conducting hearings in Shenzhen and Hong Kong, cases can be resolved at a speed even faster than that of the high-speed train. Not long ago, the SCIA accepted a cross-border lending dispute with hundreds of millions of dollars in dispute. The claimant was from Chinese Mainland, while the three respondents were from Hong Kong. The arbi tral tribunal was composed of two arbitrators from Hong Kong and one from the Chinese Mainland. The online hearing of the case was jointly held by the SCIA and SCIAHK. Their hearing secretaries provided cross-border simultaneous hearing services. Data shows that there were 19 cases last year which were heard at the SCIA and SCIAHK through the cross-border simultaneous hearing mechanism.
To promote the mechanisms integration within the GBA, the SCIA took the lead in establishing the Guangdong-Hong KongMacao Arbitration and Mediation Alliance (the “Alliance”) in 2013. Consisting of 18 major commercial arbitration and mediation insti tutions in the GBA, the Alliance creates the cross-border commercial dispute resolution model featuring “Hong Kong-Macao Mediation & Shenzhen Arbitration & Cross-border Enforcement”. Arbitration institutions from
Guangdong, Hong Kong, and Macao take turns in chairing the Alliance, being a good example of openness, equality, and transparency of cooperation mechanism.
Cross-border enforcement of arbitral awards is of key importance for the success of interna tional arbitration. In 1989, the SCIA set a prec edent for overseas enforcement of a Chinese arbitral award, following which Chinese arbitral awards go to the world through the “Shenzhen & Hong Kong” model. For now, the SCIA has the largest number of arbitral awards that were successfully enforced by Hong Kong courts when compared to the other arbitration institutions in Chinese Mainland. Last year, 10 arbitral awards rendered by the SCIA were enforced by Hong Kong courts.
The SCIA is reported to be the arbitration institution in the Chinese Mainland which has accepted the largest caseload of Hong Kong-related cases. Since 2019, the SCIA has accepted 849 Hong Kong-related disputes, the total amount of which reached RMB 72.3 billion. The SCIA plays an important role in maintaining the social and economic stability in Mainland China and Hong Kong.
The SCIA once heard an international case involving one party from the Chinese Mainland and the other party from Canada. One party selected an arbitrator from Guangdong and the other party selected an arbitrator from Canada. The presiding arbitrator was Mr. SO Shiu Tsung Thomas, JP, the then President of the Law Society of Hong Kong. The three arbitrators from different jurisdictions conducted the case hearing in English.
It is common to see such arrangements for foreign-related cases accepted by the SCIA. In commercial disputes involving parties from common law countries, Hong Kong professionals as arbitrators are not only preferred by foreign parties, but also often highly recognised by parties from the Chinese Mainland. The SCIA panel includes 151 arbitra tors from Hong Kong, who play a special role in promoting legal cooperation in different jurisdictions.
It is reported that the establishment of the GBA International Arbitration Center (“GBA-IAC”) in Shenzhen on the basis of the SCIA is a part of the comprehensive reform pilot program mandated by the Central Government. At present, the GBA-IAC focuses on strengthening the develop ment of its specialised branches, such as the SCIA Maritime Arbitration Centre, China (Shenzhen) Securities Arbitration
Centre, and China (Shenzhen) Intellectual Property Arbitration Centre, in order to promote the development of key industries in the GBA. Besides, SCIA has established the GBA-IAC Exchange & Cooperation Platform to facilitate cross-border collabora tion. Currently, 8 arbitration and mediation institutions as well as prestigious law firms have joined the platform.
The systems integration process is also the process of integrating people’s minds. It has long been the consensus of the legal, indus trial, and commercial communities in Shenzhen and Hong Kong to improve their rule of law and international business environment through arbitration coopera tion. The China Law and Business Forum is annually held by the SCIA. This Forum has become an important sharing platform for the legal and business communities in the GBA, and a crucial window for Chinese and foreign companies to understand the rule of law and international business environment of the GBA. Last year, Shenzhen and Hong Kong jointly held the 11th China Law and Business Forum to discuss risk prevention and dispute resolution amid the pandemic, helping form professional consensus and resume market confidence.
To bring into play the role of young legal talent in the GBA, the SCIA and SCIAHK have launched a joint internship program in Qianhai, Shenzhen and Hong Kong respec tively, to recruit more young legal profes sionals from Hong Kong, providing more employment opportunities in Shenzhen and Hong Kong. In addition, the SCIA has hosted the FDI Moot Shenzhen since 2020 to cultivate foreign-related legal talent. The FDI Moot Shenzhen 2022 fully covered Hong Kong and Macao teams. The winner of the FDI Moot
Shenzhen will be eligible to compete in the FDI Moot Globals.
Open to the youth, the world, and the future, the arbitration cooperation between Shenzhen and Hong Kong has become a bridgehead for the integration of systems and minds.
(This article is quoted from the first edition of Shenzhen Special Zone Daily on August 2, 2022. It was written by reporter Zhang Yan and translated by Shenzhen Court of International Arbitration with slight adaption.
There are often many reasons cited as to why international arbitration should be the preferred method of dispute resolution for parties: it can be quicker, cheaper, the process is private, the award is final, and the parties have more autonomy over the process. Whilst some of these factors are debatable (especially in highly complex commercial cases), the fact that parties to an arbitration can have more autonomy than in traditional court litigation is usually less controversial. Party autonomy in arbitration is often a significant factor that persuades contractual parties to consider arbitration over other methods of dispute resolution. This is not surprising, as the need to have control and certainty is an innate
human desire that often brings us secu rity and peace.
There is no doubt that Covid has had a detrimental effect on the economy and many businesses. Most people would also agree that it has taken a significant toll on people’s mental health. Social distancing forced people to keep a distance and lose close contact with friends and colleagues. For some people, it meant a loss of social contact and socialising all together, due to fear of catching the virus if they stepped out of the safety of their homes. Lockdowns and school closures meant that more families were stuck at home, glued to their computers for work
or online school and having to navigate the lack of privacy and personal space in their own homes. For working parents, the stress of juggling work from home, not knowing if their job is secure, and supervising their children as they studied online led many to extreme stress and more arguments both with their spouses and their children. Separation and divorce between couples were not uncommon. The unpredictability of when the pandemic would come to an end left many feeling helpless and hopeless.
It is not surprising then that psychologists were recommending people to manage their stress by knowing the facts but not obsessing over the news and doing what they could to prevent the spread of the virus. This is strongly connected to the idea that as humans, we feel a sense of confidence and security when we are able to control certain factors in our lives – for example, controlling our finances by keeping a budget or saving money, can make us feel secure. The converse is also true; when we focus on things that we cannot control, we lose that sense of security, and it often leads us into anxiety.
When supporting people with anxiety, counsellors will often refer to the concept of the “circle of control”. There are 3 circles to consider: the Circle of Control, the Circle of Influence and the Circle of Concern. This first circle consists of things you can control, such as your thoughts, words, actions and behaviour, mindset and decisions. The second circle is your Circle of Influence which includes factors you can influence, such as other people’s feelings or actions and certain outcomes of your actions (e.g., whether you win a sports game or whether your business succeeds). Unlike your Circle of Control, the factors in your Circle of Influence are not directly controllable by you but are affected or influenced by what you control. Finally, there is the Circle of Concern. In this circle, there are factors in our lives that we cannot really control, such as the natural disasters, pandemics, news and the economy. The following diagram illustrates the different circles just described:
The power of recognising the Circle of Control can be illustrated by how people responded to Covid. There were so many uncontrollable factors: the uncertainty of when the pandemic would end, travel restrictions, lockdowns, the timing of when we could be reunited with family or friends abroad and the impact of the pandemic on our future. These factors were in the Circle of Concern. However, by focusing on the inner Circle of Control and taking control of our actions such as sanitising our hands, wearing our masks, arranging remote working and meeting with friends online, many of us were able to manage the myriad of uncertainties and stress levels and adapt to the “new normal”.
We can also apply this concept of Circle of Control to choosing our dispute resolution
mechanism. The fact is that there are many uncertainties related to disputes including the length of the dispute, how much it will cost and what the outcome will be. This can create a lot of stress to the parties involved and it is not surprising that many simply avoid disputes for this very reason. This is where the element of party autonomy comes in to help relieve some of that stress.
Party autonomy is very prevalent in arbitra tion proceedings, even before the dispute commences. In a contractual clause, the parties can agree to resolve any disputes by arbitration and decide how many arbitrators should be appointed, where the arbitra tion should take place and which arbitral institution should administer the arbitra tion. The parties are therefore able to exert a level of control over a future dispute which can give them a sense of security in the event a dispute arises.
The ability to control certain matters in a dispute is psychologically signifi cant. It provides the much-needed confidence and security that the parties need in entering into a contract but also, when a dispute arises they know (to a certain extent) what to expect. A well drafted arbitration clause will enable the parties to refer the matter to arbitration smoothly and usually appoint an arbitrator of their choice to determine their case, a process that is not available in tradi tional court litigation.
Flexibility in the arbitration process also means that party autonomy is prevalent throughout the course of arbitration proceed ings. For example, most arbitral institutional rules provide a mechanism to allow parties to opt for expedited proceedings depending on the amount in dispute and certain other conditions. Many arbitral institutions are constantly seeking to improve their facilities
and processes in order to make arbitrations more efficient and meeting the needs of the parties involved. In the last few years, virtual hearings have become readily available in arbi tration to cater for Covid restrictions whilst virtual court hearings are still uncommon in many jurisdictions (including Thailand).
Virtual hearings have become readily available in arbitration to cater for Covid restrictions whilst virtual court hearings are still uncommon in many jurisdictions (including Thailand).
The following diagram illustrates how arbi tration can affect our circle of control, influ ence and concern:
Notwithstanding the positive attributes of arbitration proceedings, arbitration is still not a common method of dispute resolution in Thailand. There are many reasons for this, but one reason is that there still appears to be a lack of awareness about what arbitration means or entails for commercial entities in
Thailand. As explained above, people crave certainty and stability in times of turmoil or conflict; hence, they often tend to default to the traditional dispute resolution mechanism they are familiar with when they encounter a dispute i.e. the Thai Courts.
That said, positive steps are being taken in Thailand to promote arbitration.
Firstly, there have been developments in the past several years which have made it easier for foreign arbitrators and representatives to work in Thailand. The amendments to the Arbitration Act in Thailand in 20191 enables a foreign arbitrator or representative who has been appointed in arbitrations in Thailand to request a “Certificate” from government agen cies or organisations in Thailand (such as the Thai Arbitration Institute (“TAI”) or Thailand Arbitration Center (“THAC”)). The Certificate allows a foreign arbitrator or representative to obtain a work permit in Thailand and reside in Thailand for a specific period to work on a
specific case. Another positive development is the extension of “Smart Visas” to highly skilled professionals in Alternative Dispute Resolution, including arbitrators and arbitra tion practitioners. A Smart Visa has additional privileges compared to a general visa including an exemption to obtain a work permit and the ability for the Smart Visa’s spouse and children to stay and work in Thailand (with certain conditions).2 These are welcome changes in increasing party autonomy for those wishing to appoint foreign arbitrators or representatives in their arbitrations.
Secondly, the Thai courts have started to show a more pro-arbitration stance, by upholding arbitral awards and dismissing spurious challenges to the enforcement of arbitral awards. In Thailand, a ground that is often utilised by the losing party to set aside an arbitral award or object to the enforcement of the arbitral award, is that the enforcement of the arbitral award would be contrary to public policy. However, there have been a
number of Supreme Court decisions which have upheld arbitral awards on the bases that intervening with the award would be contrary to the objectives to resolve the dispute by arbitration,3 the arbitral tribunal had discre tion to consider the facts of the case,4 and the court could not repeatedly review the arbitral tribunal’s discretion on the admissibility and weight of evidence.5 The most high-profile case which demonstrated a major movement in terms of pro-arbitration in Thailand is the case between Hopewell Holdings Limited and the Thai Ministry of Transport and the State Railway of Thailand, in which the Supreme Administrative Court reinstated the arbitral award in favour of Hopewell, despite the other parties being a State or State-related entities.6
Thirdly, there has been a lot of effort in recent years by the arbitration bodies in Thailand, including the TAI, THAC and Chartered Institute of Arbitrators (CIArb), in organising activities, seminars/webinars and training to raise awareness and education of arbitra tion in Thailand.
The power and impact of arbitration cannot be understated. In addition to arbitrations enabling parties to have more control over their dispute, another significant advantage – particularly in Thailand – is that foreign arbitral awards are recognised and enforced more readily and easily than foreign court
Endnotes
1 Thai Arbitration Act (No.2) B.E. 2562 (2019)
judgments. There are currently no legislations in Thailand that recognise foreign judgments, nor is Thailand a party to any bilateral or reciprocal enforcement agreements with other countries that enable ease of enforcement of foreign judgments. Therefore, if a party obtains a judgment in a foreign court, that party will need to commence fresh proceed ings again in Thailand and only be able to use the foreign judgment as part of its evidence in those Thai proceedings. In contrast, any foreign arbitral award made in a country that is a contracting state to the Convention on Recognition and Enforcement of Foreign Arbitral Awards (1958) (otherwise known as the New York Convention) can be enforced by the Thai courts under the Arbitration Act B.E. 2545 (2002). A party seeking to enforce an arbitral award can file an application with the Thai courts within three years from the date the award is enforceable. Although such application may be challenged by the opposing party, the legal grounds for the Thai courts to refuse enforcement are limited pursuant to the Arbitration Act7 and we have been seeing some pro-arbitration judgments in the Thai courts, as stated above.
The benefits of arbitration go beyond the parties and can also have a significant impact on the economy. Foreign direct investment (“FDI”) is an important part of Thailand’s economic growth and many foreign investors would prefer arbitration over litigation in the Thai courts. International
2 https://smart-visa.boi.go.th/smart/document/related/7_Announcement_of_the_Office_of_ the_Board_of_Investment_No_Por_12_2561.pdf
3
Supreme Court judgment No. 6411/2560 (2017)
4
Supreme Court judgment No. 1465/2560 (2017)
5
Supreme Court judgment No. 5560-5536/2562 (2019)
6 Supreme Administrative Court Case No. 221-223/2562 (2019)
7 Section 41, 42 and 43 of Thai Arbitration Act B.E. 2545 (2002)
arbitrations that take place in Thailand can attract foreign arbitrators, lawyers and parties to come to Thailand, hence boosting tourism. Jurisdictions such as Singapore and Hong Kong have successfully incorporated arbitration into their ADR mechanism and the number of arbitration cases that go through the Singapore International Arbitration Centre (SIAC) and Hong Kong International Arbitration Centre (HKIAC) far exceed the number of cases that go through the Thai arbitral institutions.
In order for arbitration to be given more prominence in Thailand, several hindrances need to be addressed. First, there needs to be more training of what arbitration is and isn’t amongst law schools, corporations, and practitioners to raise awareness of the potential benefits of including arbitration agreements into contracts. Second, Thailand would benefit from having more experience with international arbitration, especially in light of the increasing FDI into Thailand and recent governmental policies designed to attract more foreigners into Thailand. One way this could be achieved is by welcoming more foreign arbitrators and representa tives to be involved in arbitration cases in Thailand. The easing of immigration restric tions in 2019 as mentioned earlier has been a positive step forward in this regard. Third, in order to improve efficiency and enforce ment of arbitral awards in Thailand, cases concerning enforcement or setting aside of arbitral awards should be assigned to, and determined by, judges who have substantive experience in arbitration.
In conclusion, there are many benefits in resolving disputes through arbitration and this article focused on one such benefit, namely party autonomy in arbitration and how this can have a positive impact on parties
psychologically. Arbitration enables parties to have a sense of control over the dispute and exercise some of the factors in their Circle of Control. This leads to less anxiety and stress, which can be inevitable in a conflict situation.
In terms of arbitration in Thailand, it is hoped that positive trajectory we have seen in recent years including changes to the arbitration law and judicial attitudes will continue. As the economy picks up and FDI is expected to increase in the coming months, it is perhaps an opportune time to start considering arbi tration as the preferred dispute resolution mechanism in Thailand.
For more information, please contact the authors or alternatively, our dispute resolu tion, litigation, and arbitration team members.
Emi has over 17 years of experience representing clients on complex commercial litigation and international arbitration proceedings under the ICC, LCIA, SIAC and TAI rules. Her expertise includes advising on commercial contracts, shareholder and joint venture disputes, employment, investigations (corruption, fraud and corporate governance) and competi tion law. Emi is also a professional counsellor, allowing her to comprehend the psychology of dispute resolution. Emi is half-Japanese and is fluent in Japanese.
Nattawut Cherdhirunkorn,
Nattawut is an associate active in dispute resolution, litigation, and arbitration practice. He possesses extensive experience advising foreign and Thai clients on commercial disputes, labour disputes, intellectual property disputes, class action disputes and arbitration. He has represented clients as the main litigator in Thai courts and arbitration centers.
WHY INTRODUCE OUTCOME RELATED FEE STRUCTURE AGREEMENTS (ORFSA) IN HONG KONG?
Until recently, solicitors in Hong Kong were prohibited from charging outcome related fees in arbitration.
On 17 December 2020, the Outcome Related Fee Structures for Arbitration Sub-committee of the Law Reform Commission (Sub-committee) published a consultation paper proposing changes to the law in Hong Kong to enable lawyers to use Outcome Related Fee Structures (ORFS) for arbitration in Hong Kong and elsewhere, with the objec tive of enabling Hong Kong to compete on a level playing field with other leading arbitral seats where some form of ORFS is permitted, thereby maintaining Hong Kong’s status as one of the world’s premier arbitration venues.
On 15 December 2021, the Law Reform Commission (Commission) released a report on ORFS for Arbitration recommending that Hong Kong law be amended by lifting the prohibition on the use of ORFSA for arbitra tion taking place in and outside Hong Kong and elsewhere.
The Sub-committee believed that such fee arrangements were attractive to clients for many reasons, such as financial management, access to justice and a general idea that lawyers in Hong Kong would be willing to share the risk inherent in arbitrating.
Moreover, after Hong Kong’s close compet itors, London and Singapore, implemented their own version of ORFSA, it was expected that Hong Kong would do the same.
On 30 March 2022, following the Commission’s recommendation, the Arbitration and Legal Practitioners Legislation (Outcome Related Fee Structures for Arbitration) (Amendment) Bill was introduced by the Legislative Council. ORFSA was incorporated into Hong Kong’s arbitration practice2, by amending the Arbitration Ordinance (Cap. 609) and the Legal Practitioners Ordinance (Cap. 159). The Ordinance was enacted on 30 June 2022.
An ORFS may be defined as an agreement between a lawyer and his client under which the lawyer provides services in relation to arbitration proceedings, including any related
1 https://www.deacons.com/2021/02/08/outcome-related-fee-structures/ 2 S.98Y, Arbitration Ordinance (Cap. 609).
litigation (the Proceedings) and receives a financial benefit if these proceedings are successful within the meaning of the agree ment3. Three types of ORFS are permitted by the Ordinance, namely CFAs, DBAs, and Hybrid DBAs. A few definitions:
A. Conditional Fee Agreements (CFAs)4 where (a) the lawyer charges no fee during the course of the Proceedings and is only paid a success fee if the client’s case succeeds (sometimes called a ‘no win, no fee’ agree ment) or (b) the lawyer charges a fee during the course of the Proceedings, either at his usual rate or at a discounted rate, plus a success fee if the client’s case succeeds (called a ‘no win, low fee’ agreement).
B. Damages Based Agreements (DFAs)5 where the lawyer only receives payment if the client is successful, the payment being calculated by reference to the outcome of the Proceedings - for
3 S.98ZB, Arbitration Ordinance (Cap. 609).
4 S.98ZC, Arbitration Ordinance (Cap. 609).
5 S.98ZD, Arbitration Ordinance (Cap. 609).
6 S.98ZE, Arbitration Ordinance (Cap. 609).
example, as a percentage of the sum awarded or recovered.
C. Hybrid Damages Based Agreements (Hybrid DBAs)6 where the lawyer receives both fees for legal services rendered (typi cally at a discounted hourly rate) and an additional fee that is calculated by refer ence to the outcome of the Proceedings - for example, as a percentage of the sum awarded or recovered.
Service providers - Hong Kong’s legal industry
ORFSA, although available only for arbitration and related litigation at this stage, provides greater flexibility to lawyers and clients when agreeing retainers, and this is likely to be welcomed generally.
Firstly, clients can deploy capital more effi ciently. For instance:
• If the client is seeking a ‘low risk’ and ‘less costly’ option in either a win or lose scenario, he may choose the CFA option, in which the lawyer charges a benchmark rate regardless of the outcome and only receives a success fee if the client wins.
• The client will have a better idea of the costs he may incur for budgeting purposes. This will enable the lawyer to better manage his client’s expectations.
Secondly, ORFSA allows clients to miti gate risks by sharing risk with their lawyers. For instance:
• If the lawyer and his client are confident about their chances of winning the proceedings, they may opt for a DBA or hybrid DBA option. Under either option, the client will pay the lawyer a certain percentage of damages, the only difference being no fee (DBA) or low fee (hybrid DBA).
• This allows both the client and lawyer to share in the benefits or risk of the result.
Thirdly, ORFSA promotes access to justice. In contrast to the traditional hourly fee model, ORFSA gives clients a choice where, for example, clients who do not qualify for legal aid but who have insufficient means to finance arbitration should still be able to pursue their
claims. (Note: the flaws in this point are set out in the consultation paper7.)
Since a lawyer who agrees an ORFSA with his client has a direct interest in the outcome of proceedings, the lawyer may find it difficult to give impartial advice without the risk of a conflict of interest, actual or apparent, between him and his client.8
Even if a settlement offer is less favourable than the merits of the case, lawyers may be tempted to press the client to settle to secure his fee entitlement. This may create a ‘wedge between the lawyer and client (and possibly the insurer involved)’. Again there is the risk of a conflict of interest between lawyer and client.
From a practical perspective, by allowing CFAs, DBAs and Hybrid DBAs, Hong Kong will enable arbitration users to benefit from the flexibility of being able to choose the type of fee arrangement that best suits their funding ability. Such fee arrangements can also be combined with third party funding, which is already permitted for arbitration in Hong Kong.
7 HKBA, The Hong Kong Bar Association's Position Paper on Conditional Fees: A Response to the Law Reform Commission's Consultation Paper (2006) [49] https://www.hkba.org/sites/default/files/20060428.pdf
8 https://www.hkreform.gov.hk/en/docs/orfsa_e.pdf
Safeguards can be used to ensure that the scheme is effective and the risk of conflicts of interest is minimised.
It is foreseeable that lawyers and clients will disagree on points which they may not have fully discussed before entering into an ORFSA. To promote certainty and avoid disagreement, the following clauses can be inserted to protect the parties’ respective interests. These provisions specify the terms on which a CFA, DBA, or Hybrid DBA will operate. For example, (a) (Client’s POV) a lawyer or client should be entitled to termi nate the fee agreement prior to the conclusion of the arbitration; (b) (Lawyer’s POV) provide an alternative basis (for example, hourly rate) on which the client should pay the lawyer if his retainer is terminated.
HOW DOES HONG KONG’S ORFSA DIFFER FROM SIMILAR ARRANGEMENTS IN OTHER JURISDICTIONS?
Hong Kong and Singapore
Singapore and Hong Kong are close competi tors. Both are leading international arbitration hubs in Asia. Previously, both have tradi tionally banned outcome related fee struc tures. Both have introduced ORFSA. Yet, there are differences between the two regimes:9
A. Capped CFA Regime (Hong Kong) vs Uncapped CFA Regime (Singapore)
Hong Kong caps the maximum CFA uplift fee at 100% of hourly fees and caps the maximum DBA payments at 50% of the financial benefit obtained by the client to safeguard clients from unfair arrangements.
B. CFA and DBA (Hong Kong) vs only CFA (Singapore)
Hong Kong will permit not only CFAs but also DBAs (i.e., ‘no-win, no-fee’ DBAs) and Hybrid DBAs (i.e., ‘no-win, low-fee’ DBAs). This is consistent with the Sub-committee’s final report finding that concerns around DBAs are largely unfounded in practice and are, in any event, outweighed by the benefits of providing access to justice for parties who cannot other wise afford to pursue their claims. From a practical perspective, by allowing CFAs, DBAs and Hybrid DBAs, Hong Kong will enable arbitration users to benefit from the flexibility of being able to choose the type of fee arrange ment that best suits their funding ability. Such fee arrangements can also be combined with third party funding, which is already permitted for arbitration in Hong Kong.
Preference for ORFSA compared to tradi tional hourly rate charging mechanism
As remarked above, clients can benefit from improved flexibility afforded by ORFSA10. Moreover, with an alignment of expecta tions between the client and the lawyer, the client may be able to save costs in comparison to the traditional hourly charging mechanism. ORFSA may therefore become a popular choice amongst clients for remunerating lawyers.
With three different mechanisms under ORFSA, it is anticipated that some law firms will seek to develop their own preferred
Unlike Singapore’s uncapped CFA regime, 9 http://arbitrationblog.kluwerarbitration.com/2022/04/07/singapores-new-conditional-fee-agreement-regime-an-uplifting-reform/ 10 https://www.thomsonreuters.com/en-us/posts/legal/forum-fall21-transforming-relationships/
terms to suit the needs of particular types of client. For example:
A. CFA: Large international disputes practices may be pioneers in pivoting from the CFA scheme. As they have greater resources than smaller firms they can better shoulder the risk of ‘no fee’ if the client loses. These firms may be able to afford a few losses as they have other revenue streams. At the same time, they can reap potentially large benefits if they win cases. Achieving a win for a client in a case against the odds would reinforce the international prestige of the firm. These firms are likely to be ‘risk takers’.
B. DBA/Hybrid DBA: In contrast to the above, law firms with less capital may not be able to absorb losses to fee income following a loss under a CFA. They are likely to prefer a DBA/Hybrid DBA because they provide a greater degree of security. The gains a law firm can expect from a win are relatively small in comparison to those of the CFA, just as the losses are correspondingly less. It is expected that most firms in Hong Kong will prefer this charging mechanism.
Currently, ORFSA only applies to arbitration and not litigation (except litigation arising in respect of arbitration). Its scope could be extended to litigation and disputes generally to increase the attractiveness of Hong Kong’s ORFSA offering.
The ORFSA Sub-committee invited submis sions on various matters, such as the safeguards for the professional codes of conduct and regulations, whether personal injury claims and other types of claim
should be treated differently, and what the relevant criteria should be for fixing ‘success fees’ under a CFA.11
After the appearance of ORFSA in a number of jurisdictions, it was widely expected that Hong Kong would follow suit. ORFSA is likely to be welcomed by lawyers and clients alike for the freedom of choice it provides; it can be expected to grow in popularity as parties become familiar with the types of ORFSA available and the benefits and risks associate with each. It may also be expected that ORFSA will be enlarged and enhanced in due course.
Felix Cheung, Felix specialises in dispute resolution. He handles all aspects of complex commercial and international trade litigation from the Court of First Instance up to the Court of Final Appeal. Felix also has exten sive experience conducting HKIAC, ICC, SIAC, UNICITRAL, LME, LMAA and ad hoc arbitration. Felix’s clients are multinational corporations and high net-worth individuals.
Jim James has 45 years’ experi ence of litigation and arbitration, gained in Hong Kong and other locations in Asia and in London. His practice spans banking and commerce, construction, insurance, energy, ship ping, shipbuilding, aviation and regulatory. He takes appointments as arbitrator and mediator.
11 https://www.deacons.com/2021/02/08/outcome-related-fee-structures/
In-House Community Magazine sits down with Ban Jiun Ean, and talks to him about coming back to Maxwell Chambers as its Chief Executive, ADR, and the future of the dispute resolution centre in Singapore.
YOU HAVE RECENTLY TAKEN UP THE MANTLE OF CHIEF EXECUTIVE OF MAXWELL CHAMBERS, BUT THIS ISN’T YOUR FIRST TURN AT THE HELM – YOU PREVIOUSLY SERVED AS CE FROM 2010 TO 2015. WHAT HAVE YOU BEEN BUSY WITH WHILE AWAY?
I’ve been on a fairly eclectic journey, spending time developing and running a theatre and arts centre, launching a World War 2-themed board game and several educational card games (one of which is still being used in schools till this day), and writing three young
There is a stronger emphasis on problem solving as opposed to rights-defending, and hybrid dispute resolution clauses like Arb-Med and Arb-Med-Arb are becoming more commonplace.
adult fiction novels. I also ran the Singapore Mediation Centre for three years prior to returning to Maxwell, working to build the mediation scene in Singapore.
LEAVING MAXWELL CHAMBERS IN 2015, AFTER HAVING STEERED THE ORGANISATION FROM INCEPTION TO A GOOD MEASURE OF SUCCESS, WHAT WERE YOUR BIGGEST TAKEAWAYS AND LESSON LEARNED?
One of my biggest lessons learnt was that there is a huge gap between a good idea on paper and a good idea properly executed. There are literally thousands of brilliant ideas sloshing around all over the world, but few of them have been translated into actual products or services that can benefit customers. So I’ve learnt to manage the idea generation phase better and to lean heavily into building teams that are good at execution.
RETURNING IN 2022, WHAT IS YOUR VISION FOR THE FUTURE DIRECTION OF MAXWELL CHAMBERS UNDER YOUR PRESENT LEADERSHIP?
The priority at the moment is to address the challenges thrown up by the pandemic, namely the need for much heavier investment in technology to accommodate large numbers of virtual or hybrid dispute resolution hear ings, with attendant manpower and mainte nance requirements. Even room layouts that were conceived pre-pandemic now have to be reviewed and redone to incorporate the addi tional equipment that will compete for space with the clients and their workspaces. In the longer term, there is a need for Maxwell’s offerings to evolve beyond just providing physical hearing rooms and in-person white-glove services. We need to expand into providing services that transcend our borders, and even, the physical realm entirely. In short, we are working to spin up a digital business in
Maxwell, that is both complementary to our existing physical business, and yet visionary in scope and ambition.
IN YOUR CAREER, YOU WILL HAVE SEEN ALTERNATIVE DISPUTE RESOLUTION DEVELOP FROM MULTIPLE ANGLES – BOTH FROM THE LEGAL PRACTICE PERSPECTIVE AND THE MEDIATION INSTITUTION. IN WHAT WAYS HAS ADR CHANGED MOST IN THE LAST 10 YEARS AND HOW MIGHT IT STILL NEED TO DEVELOP FURTHER?
I think the adversarial nature of dispute resolution has evolved over time as clients becoming increasingly conscious of the cost and business damage done by long, acri monious proceedings. There is a stronger emphasis on problem solving as opposed to rights-defending, and hybrid dispute resolu tion clauses like Arb-Med and Arb-Med-Arb are becoming more commonplace. It still has some ways to go to really be as cost-effective as it can be, though, as the adoption of mediation or hybrid clauses remains uneven from juris diction to jurisdiction.
THE PANDEMIC SAW US MOVE MUCH OF OUR LIVES ONLINE. HAS THIS HAD ANY LASTING EFFECT ON THE ADR HEARING VENUE SCENE?
Most definitely. There is now almost certainly a permanent shift towards procedural or direction-setting meetings taking place online only, even with borders open and interna tional travel permitted in most countries. This is simply due to cost and convenience, given these are shorter and more straightforward meetings. Full trials, however, largely remain in-person, with a hybrid element, such as witnesses being cross-examined online rather than being flown in to the hearing venue. This template appears to offer the best compro mise of all the different considerations of
cost, convenience and carbon-consciousness, weighed against the effectiveness of the experience, and is likely to be the default for the foreseeable future.
WHILE NOT MAKING AN IMPACT IN THE WORLD OF ADR, HOW DO YOU ENJOY SPENDING YOUR TIME?
I spend time with my family watching movies or playing sports, and I frequently play strategy games with friends.
LASTLY, DO YOU HAVE ANY WORDS OF ADVICE YOU HAVE FOUND TO BE TRUE IN YOUR CAREER THUS FAR THAT YOU’D LIKE TO SHARE?
I would encourage people to not wait until they retire to pursue some of their dreams in life. We never know how many days we
have left on this Earth, and regret is the one kind of failure you can most do some thing about. There is a myth that chasing career success and financial security leads to happiness, but it doesn’t as often as it does. Thankfully, a lot of people discovered this during the pandemic, and have re-ori ented their priorities.
For the rest, I would urge them to give some thought to what they really want in life, how they would like their lives to have gone when they are at the end of it looking back, and to live in that way, intentionally.
This article aims to introduce the recent development of the compe tence-competence doctrine in China. The proposed modification of the PRC Arbitration Law seems to have adopted the UNCITRAL Model Law approach, which will bring about a fundamental change in this regime and make Chinese arbitration practice more consistent with interna tional practice.
Under the competence-competence doctrine (also known as “Kompetenz-Kompetenz” or “jurisdiction to decide jurisdiction”), an arbitral tribunal can render a ruling on its own jurisdiction, 1 which gives rise to a series of intriguing questions critical to the efficacy and efficiency of arbitration, one of which is the extent to which a national court may intervene the arbitral tribunal’s competence.
Competence-competence is well established in China. Article 20 of the Arbitration Law of the People’s Republic of China (PRC) provides that an arbitral tribunal has the authority to consider a jurisdictional challenge, but if the respondent chooses to turn to court for a decision before the first oral arbitral hearing, the arbitral tribunal (or the arbitral institu tion) will no longer be vested with jurisdiction to decide its own jurisdiction.
It is interesting to note that Article 20 of the PRC Arbitration Law concerns the “validity of an arbitration clause” rather than the juris diction of an arbitral tribunal, which indicates that legislators at that time 2 regarded the
“validity of arbitration clause” as equivalent to the jurisdiction of the arbitral tribunal. It is worth noting that the Supreme People’s Court has extended the scope of judicial review to the “existence” of an arbitration clause.3 But when the “scope” of an arbitration clause is questioned, in practice, Chinese courts are reluctant to intervene and usually defer to the arbitral tribunal’s decision.
If the respondent chooses to raise the juris dictional challenge to the arbitral tribunal, once the tribunal 4 has decided on its own jurisdiction, the parties can no longer apply for judicial review on this issue, either during the conduct of arbitral proceedings or at the stage of annulment or non-enforcement of the arbitral award.5
It should also be noted that, unlike many other jurisdictions, once the competent court has accepted the application of judicial review of the jurisdiction of the arbitral tribunal (i.e.va lidity of the arbitration agreement, in Chinese arbitration terms), the arbitral proceedings will automatically be suspended until the court renders a positive jurisdictional deci sion, i.e. the arbitral tribunal has jurisdiction (or the arbitration agreement is valid).
Such judicial review over the “validity of an arbitration agreement” is more akin to action for “declaratory relief”. In circumstances where procedures are already pending before the arbitral tribunal, or where the commencement of such is imminent, and the party opposing the tribunal’s jurisdiction
1 Dimolitsa, Antonias, Separability and Kompetenz-Kompetenz, in, van den Berg, Albert Jan (Ed.), (1999) ICCA Congress Series No. 9, p. 217.
2 PRC Arbitration Law was promulgated on October 31, 1994 and came into effect on September 1, 1995.
3 See Xin Jing Enterprise Co. vs. Shenzhen Zhong Yuan Cheng Commercial Investment Holding Co., Ltd. (2019) Zui Gao Fa Min Te No. 2.
4 In China, arbitral insitutions have power to make the jurisdictional rulings, rather than arbitral tribunals. The arbitral insitutions can delegate that authority to the tribunal, but is not required to do so. See, Article 6, CIETAC Arbitration Rules 2015.
5 In case an interested party applies to the people's court for determining the arbitration agreement as valid or applies for revoking the arbitration institution's decision after an arbitration institution has made a decision on the validity of an arbitration agreement, the application may not be accepted by the people's court. See, Paragraph 2, Article 13, Interpretation of the Supreme People's Court concerning Some Issues on Application of the Arbitration Law of the People's Republic of China.
may initiate a court proceeding to obtain a declaration as to the arbitration agreement’s (in)validity from the court as defined by the lex arbitri6 or even a foreign court.7
On 30 July 2021, the PRC Ministry of Justice issued a Draft Revision of the PRC Arbitration Law (Draft Revision) for public comments. The Draft Revision seeks to make a number of fundamental changes to the current arbitration regime in China including that of competence-competence in China. Although the Draft Revision is still at the consultation stage and is yet to be formally introduced, in general terms it reflects a pro-arbitration stance, aligns with best inter national practices, and showcases China’s ambition to become a modern arbitration hub.
The new competence-competence is enshrined in Article 28 of the Draft Revision, which provides that the parties must raise a jurisdictional challenge to the arbitral tribunal for decision, and without such “pre-judicial review” procedure, the competent court shall not accept such application. Only when the arbitral tribunal has decided on jurisdictional issues, could either party file an application for judicial review of the arbitrator’s decision with the court.
It is noteworthy that the Draft Revision seems to suggest that the arbitral tribunal rather than the arbitral institution is the right body of competence-competence, bringing Chinese arbitration one step closer to interna tional practice.
The time limit for such application for judicial review is ten days upon receipt of the arbitral tribunal’s decision on its own jurisdiction and the competent court is an intermediate court at the seat of the arbitration. 8 Consistent with international practice, during the judicial review, the arbitral proceedings will not be stayed.
Careful reading of Article 28 of the Draft Revision suggests that the positive juris dictional decision of the court is final and non-appealable, but either party may apply to a higher level court for a second-level review over the negative jurisdictional decision by the arbitral tribunal, i.e. the arbitration agreement in question is held invalid, or the arbitral tribunal is held to have no jurisdiction.
If the approach under Article 28 of the Draft Revision is adopted in the new PRC Arbitration Law, it remains to be seen whether the action for declaratory relief on the validity of the arbitration agreement might come to an end. If so, the dilatory tactics employed by recalcitrant parties accompanied by unneces sary costs could be avoided.
Article 28 of the Draft Revision brings China in conformity with the UNCITRAL Model Law on International Commercial Arbitration (Model Law). Under the Model Law, an arbitral tribunal has the competence to decide its own jurisdiction. 9 In addition, if the tribunal rules as a preliminary question that it has jurisdic tion, the party may request, within thirty days after having received notice of that ruling, the competent court to decide the matter. 10
6 An intermediate people's court, or a special people's court, in the place where the arbitral institution as stipulated in the arbitration agreement is located, or where the arbitration agreement is entered into, or in the place of domicile of the applicant or the respondent, shall have jurisdiction over the case of recognition of the effect of an arbitration agreement. See, Article 2, Provisions of the Supreme People's Court on Several Issues concerning Trying Cases of Arbitration-Related Judicial Review.
7 Dadja Eak, Parallel Proceedings in International Arbitration: a Comparative European Perspective, Wolters Kluwer Law & Business(2014), p.146.
8 Article 28, the Draft Revision of the PRC Arbitration Law.
9 Article 16(1), UNCITRAL Model Law on International Commercial Arbitration (with amendments as adopted in 2006).
10 Article 16(3), UNCITRAL Model Law on International Commercial Arbitration (with amendments as adopted in 2006).
A review of some major arbitration juris dictions shows that they take different approaches and attach weights to distinct competing interests in order to give effect to the competence-competence doctrine.
In France, the courts must decline jurisdic tion over disputes that have already been submitted to arbitration unless the arbitration agreement is manifestly void or not appli cable. 11 The French courts permit only prima facie review as to whether there is a valid arbitration agreement prior to the commence ment of the arbitration.12 It follows that it would not be until the post-award stage that the courts may review whether the tribunal has “wrongly upheld or declined jurisdiction.”13
Unlike the Model Law and the French approach, under German law, the courts are permitted to examine jurisdictional issues before the commencement of the arbitration proceeding. 14 Specifically, it allows the parties to the arbitration agreement to file a request with the court to have it determine the admis sibility or inadmissibility of the arbitration proceedings before the constitution of the arbitral tribunal, 15 which is similar to the action for declaratory relief on the validity of an arbitration agreement under PRC Arbitration Law.
Under U.S. law, the Federal Arbitration Act (FAA) only provides very limited guidance on the competence-competence doctrine. Case
11 Article 1448(1), French Code of Civil Procedure.
law sheds light on the development of this doctrine in the U.S. In short, jurisdictional issues, also called “gateway issues”, including disputes over the existence, validity, and scope of the arbitration agreement, 16 shall be determined by courts, and non-jurisdictional issues are subject to resolution by the arbi tral tribunal.
However, the allocation of jurisdictional competence is not decisive. The U.S. Supreme Court in First Options of Chicago, Inc. v. Kaplan held that where parties agreed to submit a jurisdictional dispute to final resolution by arbitration, then that dispute should be referred to arbitration.17 It was also ruled in First Options that courts should not assume that the parties agreed to arbitrate arbitra bility unless there is “clear and unmistakable” evidence that they did so. 18 As a precedent, First Options was followed by different U.S. courts in several cases, which confirmed that the agreements between parties to finally resolve gateway issues by arbitration are valid. 19 To conclude, the standard of review for the tribunal’s decision on jurisdiction is based on contractual provisions, rather than on legal principles. 20
The interaction of party autonomy and compe tence-competence has also been developed in other jurisdictions. Similarly, English courts permit agreements that grant arbitral tribu nals the power to make the final jurisdictional decision. 21 In contrast, in Germany 22 and
12 Judgement of 7 June 2006, 2007 Rev. arb. 945(French Cour de cassation); Judgement of 15 June 2007, 2007 Rev. arb. 87(Paris Cour d’appel).
13 Franco Ferrari, Limits to Party Autonomy in International Commercial Arbitration, JurisNet LLC (2016), p. 188.
14 Frank-Bernd Weigand, Antje Baumann, Practitioner’s Handbook on International Arbitration, Oxford University Press(2009), para. 7.43.
15 Section 1032(2), German Code of Civil Procedure (ZPO).
16 See, Gary Born, International Commercial Arbitration, Kluwer Law International BV (2014), p.1149.
17 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (U.S. S.Ct. 1995).
18 Ibid
19 See, Gary Born, International Commercial Arbitration, Kluwer Law International BV (2014), p.1125.
20 Franco Ferrari, Limits to Party Autonomy in International Commercial Arbitration, JurisNet LLC (2016), p. 193.
21 See, LG Galtex Gas Co. v. China Nat’l Petroleum Co. [2001] EWCA Civ 788 (English Ct. App.).
22 Stefan Kröll, Recourse against Negative Decisions on Jurisdiction, (2004) 20 Arbitration International 1, pp. 55–72.
France 23, the parties may not exclude the courts from reviewing the arbitral tribunal’s decision on jurisdiction.
Under PRC law, both the PRC Arbitration Law and the Draft Revision are silent on the relationship between party autonomy and the competent-competence doctrine, and it remains an issue to be resolved by judi cial practice.
Another noteworthy development as regards the competence-competence doctrine in the Draft Revision is the court’s review of a negative jurisdiction ruling, i.e. the tribunal decides to decline its own arbitral jurisdiction.
Although many jurisdictions recognise arbi trators’ positive competence-competence, the negative jurisdictional ruling is less explored and addressed. There have been debates on whether a judicial review of negative jurisdic tional decisions should be allowed.
The argument for allowing court review of a negative jurisdictional ruling is that such review helps prevent a party from being denied the right to arbitrate in circumstances where the arbitral tribunal has wrongly decided that it does not have jurisdiction. 24 Moreover, there is something fundamentally unfair about denying claim ants entitlement to court review of negative rulings, given the wide acceptance of the right of respondents to challenge positive rulings in court.25
Although many jurisdictions recognise arbitrators’ positive competence-competence, the negative jurisdictional ruling is less explored and addressed.
The counterargument is that denying recourse against the arbitral tribunal's negative jurisdictional ruling will not leave the aggrieved party's substantive rights and claims in any way extinguished, prejudiced or affected. 26 The parties can still pursue their claims in any other forum where proper jurisdiction can be found.27
Some Model Law jurisdictions such as Scotland and New Zealand, by modifying Article 16 (3) of the Model Law when adopting it, deliberately expanded the scope of review allowing a court to review all rulings on juris diction made by the tribunal as a preliminary question, whether it is positive or nega tive. 28 Singapore also revised its arbitration law in 2012, expressly allowing for judicial review of negative jurisdictional rulings. 29 In some non-Model Law jurisdictions such as England and Wales, 30 a jurisdictional ruling (including a preliminary negative one) is defined as an award and subject to appeal.
By contrast, the current PRC Arbitration Law only expressly provides that Chinese courts may determine the arbitral tribunal's juris diction where the arbitral tribunal rendered a positive jurisdictional ruling. 31 It is silent on
23 See, Gary Born, International Commercial Arbitration, Kluwer Law International BV (2014), p.1116.
24 Paulo Fohlin, A case for a right of appeal from negative jurisdictional rulings in international arbitration governed by the UNCITRAL Model Law, (2008) 10 Asian Dispute Review 113, p.113.
25 Ibid, p. 114.
26 PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA, [2007]1 SLR 597 (R).
27 Lawrence G. S. Boo, Ruling on Arbitral Jurisdiction-Is That an Award, (2007) 3 Asian International Law Arbitration Journal 125, p. 141.
28 Rule 21 (1), Arbitration (Scotland) Act (2010); Section 16 (3), New Zealand Arbitration Act (1996).
29 Section 10, Singapore International Arbitration Act (2012 Amendment).
30 Section 31 (4) (a), English Arbitration Act (1996); Section 16 (2), Indian Arbitration and Conciliation Act (1996).
31 Article 58(1)(2), Arbitration Law of the People’s Republic of China (2017 Amendment).
the scope of authority of the courts to review a negative jurisdictional ruling made by the arbitral tribunal.
Nonetheless, in judicial practice, it appears that Chinese courts would be inclined to review negative jurisdictional rulings, despite the absence of express power to do so under the PRC Arbitration Law.
In Champion Honest (Hong Kong) Limited v Sinopec Group Zhongyuan Oil Prospecting Bureau Foreign Economic and Trade Corporation (Zhongyuan Case), the dispute concerned whether the court had the power to review the involved CIETAC negative jurisdic tional ruling. The Beijing No. 4 Intermediate People's Court held that whilst the ruling was not in the form of an "arbitral award", it had de facto addressed the merits of the case and affected the substantive rights of the parties. Therefore, it fell within the scope of the court’s judicial review of an arbitral award.32
At the time of the Zhongyuan Case, it was unclear whether it was a one-off decision or would provide a back door to challenge a negative jurisdictional ruling. But this was echoed by the Draft Revision which suggests a spearhead of a movement to provide the legal basis for judicial review of negative jurisdic tional rulings. Article 28 of the Draft Revision provides that if the competent court renders a negative ruling on jurisdiction, i.e. the arbi tration agreement in question is held invalid, or the arbitral tribunal is held to have no jurisdiction, either party may apply to a higher level court for a second-level review. It can be inferred from the wording of Article 28 of the Draft Revision, the competent court has jurisdiction to conduct a judicial review over a negative jurisdictional decision by an arbitral tribunal, which will make China one of the few
32
jurisdictions to address negative jurisdictional decisions in their arbitration laws.
With 20 years of experience, Mr Patrick Zheng has established a round reputation in cross-border dispute resolution and international arbitration and litigation. He is qualified to practice law both in China and New York. Mr Zheng is also a panel arbitrator of various arbitration institutions such as CIETAC, SCIA, SIAC, HKIAC, KCAB, KLRCA and etc.
Charles Qin is a partner of Llinks Law Offices. He has been practicing for the past three decades. With rich experience in banking, corporate finance, PE/VC, and asset management, he shifted his practice from transactions to dispute resolution 12 years ago. In addition to counsel and arbitrator work, he has acted as PRC law expert witness before foreign courts or international arbitral tribunals in more than 10 cases. Mr. Qin is currently a panel arbitrator of SCIA, SHIAC, and SAC, a member of the Chartered Institute of Arbitrators.
Wenying Liu graduated from University of International Relations and obtained Master degree of Law. Wenying Liu’s practice area is dispute resolution, including international arbitration and litigation.
Since joining Llinks Law Offices, Wenying Liu has partici pated in processing many domestic and foreign arbitration cases on behalf of clients before international arbitration tribunals, including HKIAC, CIETAC, SCC, and etc.
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