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Volume 16 Issue 7, 2019
What we learned
from our 2019 winners
The Thing About… Whistleblower In-House Insights:
Shruti Ajitsaria investigations Andrew Cooke
Head of Fuse on tech Keys to responding We talk to the GC of
innovation in law to a dynamic event Flash Entertainment
| MAGAZINE FOR THE IN-HOUSE COMMUNITY ALONG THE NEW SILK ROAD |
Now in its 21st year, the In-House
Community Congress series is the region’s
original and largest circuit of corporate
counsel events, bringing together over
3,000 corporate in-house counsel and
compliance professionals along the The annual gatherings
of the In-House Community
New Silk Road each and every year.
along the New Silk Road
n Abu Dhabi
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n Beijing
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n Ho Chi Minh City
Do you have a regular dialogue
n Hong Kong
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with your peer In-House Counsel n
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London
Manila
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along the New Silk Road?
n Seoul
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“In-House Community provides a unique combination of best n Yangon
practice sharing, networking, news and technical updates that
all practitioners need in order to meet the competing
pressures of legal coverage, compliance and commerce.
In-House Community empowers the modern lawyer to work
smarter and become a trusted business partner”
Trevor Faure, Global Adviser, Legal Transformation.
Former General Counsel, Ernst & Young Global,
Tyco International, Dell & Apple EMEA.
Join your colleagues at an
In-House Congress near you
FORUMS FOR THE
For more information email us at: In-House Community
congress@inhousecommunity.com www.inhousecommunity.com
Feature contributors
Michael Olver is the managing director of Pacific Strategies & Assessments Group. He
has been a corporate investigator for 14 years and has acted as an investigative
Nick Ferguson – Managing Editor
nick.ferguson@inhousecommunity.com responder on matters in Africa, the Middle East and Asia.
Leo Yeung – Design Manager
leo.yeung@inhousecommunity.com
Wendy Chan – Global Head of Events
wendy.chan@inhousecommunity.com
Rahul Prakash – Publisher
rahul.prakash@inhousecommunity.com Patrick Gearon is head of Charles Russell Speechlys’ Middle East practice, based in
Bahrain. He specialises in all areas of dispute resolution with particular emphasis on
Yvette Tan – Head of Research and
Community Development banking, intellectual property, insolvency, professional negligence and company dis-
yvette.tan@inhousecommunity.com
putes.
Yannie Cheung – Office Administrator
yannie.cheung@inhousecommunity.com
Tim Gilkison – Managing Director
tim.gilkison@inhousecommunity.com
Gareth Mills is a partner at Charles Russell Speechlys in Bahrain. He advises on com-
Patrick Dransfield – Publishing Director
patrick.dransfield@inhousecommunity.com mercial dispute resolution and international arbitrations with particular focus on the
Arun Mistry – Director communications sector. He has special experience in international arbitrations having
represented clients in LCIA, UNICTRAL and ICC Arbitral proceedings across a range
Editorial Enquiries of jurisdictions.
Tel:........................ (852) 2542 4279
editorial@inhousecommunity.com
Advertising & Subscriptions
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rahul.prakash@inhousecommunity.com
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© 2019 Pacific Business Press Limited
and contributors
Opinions expressed herein do not constitute
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CHINA SINGAPORE CANADA MALAYSIA SINGAPORE HONG KONG UNITED KINGDOM
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ISSN 2223-8697
In this issue Volume 16 Issue 7, 2019
In-House Community
Counsels of the Year
2019
27. The winners of this year’s
awards once again set the
benchmark for excellence and
demonstrate that inspiring
leadership is alive and well
among in-house teams in Asia,
the Middle East and Africa
JURISDICTION UPDATES
Key legal developments affecting the In-House Community along the New Silk Road
4 Local content and participation in Ghana’s electricity supply
04 industry
By Araba Attua-Afari and Patience Emieaboe of LEX Africa
6 Settlement of disharmony between laws and regulations through
mediation
By Vincent Ariesta Lie, Towy Aryanosa and Putri Rachelia Azzura of
Makarim & Taira S.
08 8 Revisiting the AMLA in light of transnational money laundering
By Kristian Angelo P Palmares of ACCRALAW
10 The value of a citizen’s participation trial
By Charlina Jean Ahn of Lee International
12 New law on competition takes effect
By Nguyen Thu Huyen of bizconsult
10
14 OFFSHORE UPDATE
Crypto and blockchain fundraising – 2019 market update
By James Twigg and Daniel Lo of Walkers
2 www.inhousecommunity.com
16 THE BRIEFING
Along with the latest moves and jobs, we take a closer look at Luckin
Coffee’s Nasdaq IPO and review our inaugural event in London, as well
as our outbound and Thailand events
12
26 SPOTLIGHT ON CIA (Collections, Investigation & Audit)
Forensic investigations and cross-border matters
Head of forensics, Erick Gunawan, looks at the constant evolution in
data types and volumes, and the ever-tightening data privacy laws and
regulatory intervention
36 IN-HOUSE INSIGHTS
Andrew Cooke 26
We speak to the head of strategy and general counsel for Flash
Entertainment, and our In-House Community Counsel of the Year, about
running an in-house legal team and his outlook for the profession.
SPECIAL FEATURES
40 Whistleblower investigations: Keys to responding to a dynamic event
In-house teams should be prepared for an inevitable increase in
incidents requiring investigation as whistleblower protections grow, 36
writes Michael Olver, Pacific Strategies & Assessments
44 The growth of third-party funders
Growing awareness of litigation funding is making it easier for
businesses to pursue disputes, write Patrick Gearon and Gareth Mills,
Charles Russell Speechlys
46 Q&A
Kirsty Dougan
46
The former head of Axiom and newly appointed Asia managing director
of Vario talks about her new role and the future of NewLaw.
50 THE THING ABOUT…
Shruti Ajitsaria
The head of tech innovation space Fuse and a partner at Allen & Overy
talks to Patrick Dransfield about legaltech, entrepreneurship and
London’s role in the future of law
54 ASIAN-MENA COUNSEL DIRECT
Important contact details at your fingertips 50
Asian-mena Counsel is grateful for the continued editorial contributions of:
Volume 16 Issue 7, 2019 3
JURISDICTION UPDATES
AFRICA
Bentsi-Enchill, Letsa & Ankomah
4 Momotse Avenue, Adabraka - Accra
Contact: T: (233) 302 208888 / 220516 / 221171
Kojo Bentsi-Enchill E: kojo.bentsi-enchill@belonline.org
Written By: W: www.belonline.org
Araba Attua-Afari and
Patience Emieaboe
Local content and participation in Ghana’s electricity
supply industry
I n line with the national push for a more struc-
tured approach to increasing local content and
participation, the Regulations came into force on
Restrictions on the transfer of interest/
equity – with certain exceptions (such as a com-
pany engaged in manufacturing), the rights and
Penalties – the penalty for breach of the
Regulations are, for a first offence, a fine of up to
C6,000 (US$1,100) or to or to a term of impris-
December 22, 2017. Prior to the passing of the interests of a Ghanaian citizen under a contract, onment of between one and two years.
Regulations, only the general local content provi- and the equity stake in a company, in the electric- Subsequent offences attract a fine of up to
sions set out in the Ghana Investment Promotion ity supply industry may only be transferred to a C12,000 or a term of imprisonment of between
Centre Act, 2013az (Act 865) applied to the Ghanaian. six months and two years.
electricity supply industry. This newsletter high-
lights some of the local content requirements Partnership – A foreign company must partner Whilst the rationale behind the passing of
introduced by the Regulations. with an indigenous Ghanaian company to pro- the Regulations is commendable, the current
vide goods and services. The levels of participa- form of the Regulations raises concerns. For
Establishment of Electricity Supply tion are set out in the Regulations. instance, the impact of the equity transfer prohi-
Industry Local Content and Local bition on the attractiveness of Ghanaian power
Participation Committee (the Committee) Registration of service providers – All per- projects to foreign sponsors cannot be ignored.
– The Committee established by the Regulations sons service providers in the electricity supply In light of the restrictions on the transfer of local
to oversee the development and of local content industry must register with the Committee by equity, lenders must now reconsider the suitabil-
and participation in the industry, and to monitor March 22, 2018. ity of their security packages as a charge over
the implementation of the Regulations was inau- Ghanaian-held shares of the project company
gurated on May 2, 2019. Exemptions – the Regulations allow for local can only be transferred to another Ghanaian.
content exemptions for the provision engineering The prohibition also imposes a fetter on a
Ghanaian equity participation – the levels and of technical consultancy and maintenance ser- Ghanaian company’s ability to exit the electricity
of local content for certain activities in the elec- vices. The exemptions apply where (i) proprietary supply industry when there is no willing Ghanaian
tricity supply industry range from an initial 15 equipment or technology is needed; or (ii) the buyer.
percent to 80 percent, rising to between 49 service provider or any other entity engaged in any
percent and 100 percent. Service providers activity in the electricity supply industry can show
operating in the industry before the coming into that the expertise required does not exist locally.
force of the Regulations have five years from the
LEX Africa is an alliance of law firms with over
date of the Regulations to comply with the rele- Incentives – tax incentives are available to a
600 lawyers in 25 African countries formed in
vant initial level. All other service providers must company that establishes a plant to manufacture
1993. More information may be found on
be complaint with the initial level requirements or assemble electrical equipment, electrical
www.lexafrica.com.
from the commencement of the activity. appliances or renewable energy.
Empowering In-House Counsel along the New Silk Road
4 www.inhousecommunity.com
THE BRIEFING
INDONESIA
Summitmas I, 16th – 17th Floors, Jl. Jend. Sudirman Kav. 61-62, Jakarta 12190, Indonesia
Tel: (62) 21 5080 8300 / Fax: (62) 21 252 2750
E: vincent.lie@makarim.com
E: towy.aryanosa@makarim.com
By Vincent Ariesta Lie, Towy Aryanosa and E: putri.azzura@makarim.com
Putri Rachelia Azzura E: info@makarim.com
W: www.makarim.com
Settlement of disharmony between laws cluding and reading out the mediation result.
The mediation result can be:
and regulations through mediation (1) an agreement between the parties to be
implemented within 30 calendar days or as
O n February 12, 2019, the Minister of Laws
and Human Rights (MOLHR) issued
Regulation No. 2 of 2019 on The Settlement of
(1) individuals or groups of individuals;
(2) agencies/institutions/ministries/non-ministerial
government institutions/regional governments;
agreed; or
(2) a recommendation from the MOLHR, if (i) the
Relevant Parties were not present in the
Disharmony between Laws and Regulations and hearing(s); (ii) the parties did not reach an
through Mediation (MOLHR Reg 2/2019), which (3) public/private entities. agreement; or (iii) the mediation was ordered
came into effect on February 14, 2019. The application must be submitted in writing by the MOLHR.
MOLHR Reg 2/019 replaces the previous in the Indonesian language, and provide at least The parties must implement the recommen-
regulation on the same subject, MOLHR the following information: dation within 60 calendar days of its receipt.
Regulation No. 32 of 2017 on The Procedure for (1) the applicant’s identity; Otherwise, the recommendation will be submit-
the Settlement of Disputes over Laws and (2) his/her/their date of birth/age; ted to the President of the Republic of Indonesia
Regulations through Non-Litigation. (3) the type of laws and regulations for which within 30 calendar days of the expiry of the imple-
mediation is being applied; mentation time limit. The recommendation will
Scope (4) the grounds for the application; and then be used as a consideration for the program
MOLHR Reg 2/2019 reinstates the non-litigation (5) the matters to be resolved (petition). for the drawing up of the regulation of the minis-
settlement of disharmony issues between laws and ter, non-ministerial institution, non-structural insti-
regulations by introducing mediation. The types of The application must be submitted to the tution, or law or regulation at regional level.
laws and regulations between which disharmony MOLHR with a copy to the DGLR. The DGLR
can be resolved through mediation include: will then assign a Preliminary Assessment Team Comments
(1) Ministerial regulations; — consisting of administrative officials at the This procedure is different from court proceedings
(2) Non-ministerial government institution regula- Directorate for the Litigation of Laws and or judicial review at the Supreme Court or
tions; Regulations — to check the completeness of the Constitutional Court, which rulings are enforcea-
(3) Non-structural institution regulations; and application and then register the application. ble. MOLHR Reg 2/2019 does not provide any
(4) Regional laws and regulations. Otherwise, the application will be returned to the clear and detailed provisions on how to enforce
The above regulations can be submitted for applicants to be completed. A copy of the applica- the mediation result, whether it is a recommenda-
mediation if they vertically and horizontally contra- tion will then be delivered to the parties within tion issued by the MOLHR or an agreement
dict each other and (i) cause disharmony between seven days of the date of its registration. between the parties.
legal norms; (ii) conflicts of authority between In addition, Reg 2/2019 also defines Related In addition, the submission of the MOLHR’s
ministries/institutions; (iii) cause injustice for com- Parties as those who have a direct interest in any recommendation to the President seems unusual,
munities and business actors; or (iv) disrupt the mediation application, either in relation to their as ideally it should be submitted to the authorities
investment climate, business, as well as national rights and/or authorities. which issued the disputed regulations. Further,
and regional economic activities. MOLHR Reg 2/2019 is also silent on how the
Mediation can commence upon receipt of The mediation procedure recommendation should be implemented after
the following: The mediation must be conducted in a public the President has received it.
(1) an application from the parties; or hearing and chaired by the Examining Panel, We anticipate a problem may also arise if the
(2) an order from the MOLHR; in which case, appointed and established by the DGLR. The MOLHR’s recommendation is not in the appli-
MOLHR will assign the Director General of Examining Panel has five members; three from the cant’s favour, as under Article 16 of Reg 2/2019,
Laws and Regulations (DGLR) to conduct the Ministry of Law and Human Rights and two from mediation cannot be applied for if the issues are
mediation without first receiving an application scholars. the same as those which have already been
from any party. The mediation procedure includes: (i) hear- resolved through the mediation under MOLHR,
ings of the testimony of the applicant and Relevant unless the parties (ie the applicant and the relevant
Parties and applications Parties, (ii) experts providing legal opinions, (iii) institutions stated above) agree to make amend-
The following can apply for mediation: providing clarification to the parties and (iv) con- ments to their agreement.
6 www.inhousecommunity.com
Volume 16 Issue 7, 2019 7
JURISDICTION UPDATES
PHILIPPINES
By Kristian Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW)
Angelo P Tel: (63) 2 830 8000
E: kppalmares@accralaw.com
Palmares
W: www.accralaw.com
Revisiting the AMLA in light of transnational ments under Republic Act No. 10927, which
included casinos, including internet-based casinos
money laundering and ship-based casinos, with respect to their cash
transactions related to their gaming operations. On
F or several decades, money laundering has
extended the reach of transnational organised
crime throughout various nations. As seen in pop
“With the rampant money
this note, the AMLC requires casinos to report
transactions over Ps5 million (US$96,000) or
other currency equivalent within five working days.
culture, drug lords and mobsters regularly ship off laundering schemes that This means players should keep their bets and
“dirty money” from their illegal trade into offshore proliferated recently, transactions well under Ps5 million if they do not
bank accounts, thus making such funds appear “clean”. want to be flagged by this rule and reported to the
In a more real and contemporary setting, it the AMLA and its IRR authorities. Casino owners must also yield to com-
was recently reported that more than US$1 billion find relevance now more pliance checks and investigations by the AMLC if
was laundered in Venezuela through a sophisticated they suspect money laundering or terrorism
scheme which involved the embezzlement of funds than ever” financing, at the risk of severe penalties and fees.
from a state-owned oil company and the corre- The 2018 IRR likewise feature new rules on
sponding utilisation of a foreign exchange system to initiate civil forfeiture, asset preservation and freez- the AMLC’s obligation to work in coordination with
convert such funds at a fixed rate for US dollars, ing of properties representing, involving or relating law enforcement agencies in the conduct of its
considerably below the true economic rate. to an unlawful activity or money laundering cases, ascertain beneficial ownership relative to
As the IMF estimates that the amount of offence. Indeed, the state imposes stiff penalties on legal entities, enhancement of customer due dili-
money laundering occurring on a yearly basis could money laundering due to its pernicious effects, gence, national risk assessment and management,
range between 2 and 5 percent of the world’s such as reduced tax revenues and proliferation of and AMLC supervision and compliance checking.
GDP, or somewhere between US$600 billion and underground economies that stifle legitimate busi- Additionally, the AMLC also established guidelines
US$1.5 trillion, various states have taken efforts to nesses and financial institutions. on keeping databases for customer records, report-
curtail money laundering in the form of multina- The Anti-Money Laundering Council (AMLC), ing, registration, to name a few. Adoption of these
tional treaties, regional agreements and local legis- composed of the governor of the BSP as chairman, measures would enable the AMLC to easily enforce
lation. Thus, amid persuasion from the international and the commissioner of the Insurance compliance in the financial and business sectors.
community, the Philippines and many other Commission and the chairman of the Securities Indeed, with the rampant money laundering
nations enacted local laws to curtail such acts. and Exchange Commission as members, is the schemes that proliferated recently, the AMLA and
In response to the recent trends in transna- lead agency tasked with implementing the provi- its IRR find relevance now more than ever.
tional money laundering, the Bangko Sentral ng sions of the AMLA. To date, the AMLC has effi- Whether the current state of our justice system is
Pilipinas (BSP) emphasised the need to strictly ciently carried out its mandate by successfully sufficient to speedily and efficiently rectify the con-
implement the Anti-Money Laundering Act initiating cases for violations of the AMLA and stantly-evolving money laundering concern
(AMLA) of 2001 as means of fortifying the securing successful forfeiture cases relative to remains to be seen. At any rate, there is no ques-
Philippines from money laundering activities. unlawful proceeds thereof. tion that the AMLA and the AMLC’s recent issu-
Under the AMLA, money laundering is a The Philippine stance on money laundering ance of the IRR is a great step forward in addressing
crime wherein the proceeds of an unlawful activity remains just as dynamic more than a decade after transnational money laundering.
are transacted, thus making them appear to have the passage of the AMLA. Recently, the AMLC
originated from legitimate sources. While the approved the 2018 Implementing Rules and The views and opinions expressed in this
AMLA presupposes the commission of a distinct Regulations (2018 IRR) of the AMLA shortly before article are those of the author. This article is
for general informational and educational
unlawful act (eg kidnapping, qualified theft, graft and the Venezuelan expose and in the wake of the
purposes, and not offered as, and does not
corruption), money laundering itself contemplates results of the Second National Risk Assessment, constitute, legal advice or legal opinion.
the entry of dirty money into a legitimate financial where the AMLC led a thorough evaluation of the
institution to give it a semblance of legality. In addi- country’s preparedness against money laundering. (Note: This article first appeared in Business World,
tion to criminal prosecution, the state may also The 2018 IRR incorporated certain amend- a newspaper of general circulation in the Philippines.)
8 www.inhousecommunity.comJURISDICTION UPDATES
SOUTH KOREA
Poongsan Bldg. 23 Chungjeongro, Seodaemun-gu, Seoul 03737, Korea
Tel: 82 2 2262 6219 / Fax: 82 2 2273 4605
By Charlina Jean E: cjahn@leeinternational.com
Ahn W: www.leeinternational.com
The value of a citizen’s participation trial ter. In fact, using one’s moral compass and life
experiences to evaluate a given scenario is some-
thing most people do on a daily basis. Expertise in
S ince February 2008, pursuant to the Act on
Citizen Participation in Criminal Trials,
defendants in many types of criminal cases in
“A fundamental
the law is not a necessity; common sense and a
rational mind are considered equally valuable.
If creating a more democratic process is the
Korea have had the right to a “citizen’s participa- assumption of the jury goal, the law should be presented to the people in
tion” trial, where a group of five to nine jurors acts system is that laypersons a way that is clear and easy to understand because
as both finders of fact and rulers on the law (Article the system should be accessible to all citizens
12, section 1). In a traditional trial, a judge or are fully capable of equally. If citizen’s participation trials become
group of judges makes all factual and legal deci- making decisions more widely used, defense attorneys and prose-
sions, in much the same way as would a judge in cutors alike will engage more with an audience
an American bench trial. regarding guilt in a (the jury), and over time perhaps mitigate the air
Under Article 1 of the Act, Korean jury trials criminal matter” of exclusivity that is oftentimes perceived by the
were created to “raise democratic legitimacy” and public.
to inspire more confidence in the judicial process It goes without saying that having a jury sys-
as a whole. While similar to an American jury trial, tem is not a guarantee that justice will prevail, or
a citizen’s participation trial has some striking dif- Historically, in common law jurisdictions, a that a defendant who chooses a traditional trial is
ferences. Under Article 46, the decision of a jury jury trial was believed to increase fairness for the somehow less likely to receive justice. The value
is non-binding. Jurors may request guidance from defendant based on the assumption that members here lies in the defendant being able to choose
the presiding judge if they cannot reach a decision. of the defendant’s community, from whom a jury between the two methods. A flawless judicial
Consensus is not necessarily required. Jurors may would be drawn, knew the defendant’s character system does not and cannot exist because people
even make sentencing recommendations. and could therefore balance the scales of justice create judicial systems and people are not perfect.
In the US, jurors act almost exclusively as for a wayward defendant who was an otherwise Even with a jury’s best intentions, guilty persons
finders of fact. In other words, they are responsi- law-abiding citizen. Of course, this could also have may walk free and innocent defendants put behind
ble for determining the merits of any given mate- the opposite effect and a defendant’s reputation bars, in neither case offering justice to the victim.
rial fact of a case, and ultimately whether a could work against him or her. In either case, a Although inevitably imperfect, a jury system
defendant is culpable enough to be found guilty of jury trial allowed for a more democratic process offers democratic legitimacy to what would other-
the charged offence(s), based on the evidence where a defendant’s fate was not tied to the opin- wise remain an autocratic system. This is the very
provided. Generally, they play no role in matters ion of a single judge. reason why citizen’s participation trials were cre-
related to sentencing. In contrast, a judge is the Detractors of the jury system may argue that ated; to build more confidence in the judicial sys-
arbiter of the law. The judge also controls court- matters regarding the law should be determined tem as it applies to criminal law. Even if an
room proceedings and determines sentencing. by people who are actually trained in the law, i.e. arguably more democratic process like the citi-
For example, a judge decides whether an objec- judges and attorneys. While the sentiment is zen’s participation trial yields a socially or morally
tion is sustained or overruled, and whether evi- understandable, a fundamental assumption of the undesirable result in certain cases, the merits of
dence will be admitted or excluded from jury system is that laypersons are fully capable of the system as a whole are more valuable than any
consideration in a given case trial. making decisions regarding guilt in a criminal mat- single outcome.
Find the Asian-mena Counsel JURISDICTION UPDATES archived at
www.inhousecommunity.com
10 www.inhousecommunity.comJURISDICTION UPDATES
VIETNAM
Hanoi: VNA Building, 20 Tran Hung Dao Street, Hoan Kiem District, Hanoi, Vietnam
Tel: (84) 0 24 3933 2129, Fax: (84) 0 24 3933 2130, Mobile: (84) 91 290 8579
By Nguyen E: huyennt@bizconsult.vn
Thu Huyen E: info-hn@bizconsult.vn
Ho Chi Minh: Room 1103, 11th Floor, Sailing Tower, 111A Pasteur, District 1, Ho Chi Minh City, Vietnam
Tel: (84) 0 28 3910 6559, Fax: (84) 0 28 3910 6560
E: info-hcm@bizconsult.vn
W: www.bizconsult.vn
New law on competition takes effect or sources of supply of goods and services of
parties not participating in the agreements; and
other agreements which have or may have a
V ietnam’s National Assembly passed the new
Law on Competition (New Competition
Law) on June 12, 2018 and it will be taking effect
“There are significant
competition-restraining impact. In addition, the
New Competition Law provides the new term of
“significant market force”, which is a ground to
changes in regulating
on July 1, 2019, 14 years after the implementa- verify “a dominant market position” of an
tion of the Law on Competition 2004. ‘acts in restraint of enterprise, apart from the one of “holding of 30
The New Competition Law governs (i) the percent or more of the market share in the
competition’, which are
acts in restraint of competition, economic relevant market”.
concentrations which have or may have a defined as actions that The management of economic concentration
competition-restraining impact on Vietnam’s is another noteworthy change of the New
cause or may cause a
market; (ii) unfair competitive acts; (iii) Competition Law. Unlike the 2004 version of the
competition legal proceedings; (iv) dealing with competition-restraining law, which determines the prohibited economic
breaches of the law on competition; and (v) State concentration by relevant market share ratio,
impact”
administration of competition. presently, economic concentration shall be
The New Competition Law extends the prohibited if it causes the effect or is capable of
scope of its applicable entities that consist of Law, the “acts in restraint of competition” apply causing the effect of significantly restricting
“related domestic and foreign agencies, only to enterprises and consist of “economic competition in the market of Vietnam. The
organisations and individuals”, apart from concentration”, meanwhile, these matters are “significantly restricting competition effect” shall
organisations and individuals conducting business now no longer provided. be also confirmed by the National Competition
and industry and professional associations The approaching method under the 2004 Committee based on specific elements provided
operating in Vietnam. These broadened version of the law to control “agreements in in this New Competition Law. Regarding “the
regulations aim to create the mechanism to settle restraint of competition” is solely based on unfair competitive acts”, the New Competition
anti-competitive acts and/or cases which may be “combined market share”. At present, the New Law does not re-provide and refer to other acts
implemented overseas but have or may have a Competition Law manages these agreements by that are governed under other relevant laws, and
competition-restraining impact on Vietnam’s its nature or ability to have a significant “illegal multi-level sales” are excluded from unfair
market and to control acts relating to competition competition-restraining impact in the market. competitive acts.
of state authorities. This content is to meet the The term “significant competition-restraining One last remarkable point of the New
requirements of economic integration and create impact” is newly provided and shall be Competition Law is to strengthen and ensure the
a fair competition environment for both domestic determined by the National Competition independence of the state administration of
and foreign organisation/individuals. Committee according to market share ratio, competition by having new regulation on the
Pursuant to the New Competition Law, barriers to market access or expansion, restriction National Competition Committee, which is an
there are significant changes in regulating “acts in of research, development and renovation of agency under the Ministry of Industry and Trade,
restraint of competition”, which are defined as technologies, etc. The New Competition Law being in charge of advising and assisting the
actions that cause or may cause a competition- further provides three more types of agreements Minister of Industry and Trade in exercising the
restraining impact, including “practices of in its list of “agreements in restraint of function of state administration of competition;
agreement in restraint of competition, abuse of competition”, including: agreements not to trade carrying out competition legal proceedings and
dominant market position, and abuse of with parties not participating in the agreements; to perform other duties in accordance with the
monopoly position”. Under the 2004 version of agreements to restrain the product sale market laws.
12 www.inhousecommunity.comJURISDICTION
OFFSHORE UPDATE
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Walkers (Singapore) Limited Liability Partnership
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By James Twigg and Daniel Lo
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Crypto and blockchain fundraising – in fundraising volume. To date, there are almost
170 STOs, with ICO Bench reporting that 120
2019 market update have completed and 50 are continuing. The larg-
est STO so far is by tZERO in 2018 raising
E ver since the introduction of bitcoin more
than a decade ago, we have seen the expan-
sion of the cryptocurrency ecosystem, with over
“Amid this cooling period
US$134 million. For STOs to continue to gain
institutional acceptance, key elements of the
critical market infrastructure needs to mature
2,000 cryptocurrencies in existence today and for the crypto community, a such as regulated exchange platforms moving
growing daily. In the race towards cryptocur- into the crypto space or crypto exchanges receiv-
new fundraising method has
rency and blockchain dominance, came the ing regulatory approval and reliable crypto ratings
emergence of a fundraising method for crypto- arisen that many believe and research.
founders to finance their companies, known as
will eventually completely
the initial coin offering (ICO). An ICO is a Looking forward to asset tokenisation
method whereby new projects sell their underly- replace the ICO” In addition to the popularity of STOs, asset
ing crypto tokens/coins in exchange for fiat cur- tokenisation will be a prevalent trend in 2019.
rencies or cryptocurrencies of immediate and Asset tokenisation describes the process of con-
liquid value such as bitcoin and/or ether. the fourth quarter of 2018, according to ICO verting assets into digital tokens on a blockchain,
Bench. Crypto market participants will continue to commonly referred to as a tokenised security
ICOs in review face sustained pressure if they continue to sell ICO offering (TSO). TSOs are tokenising “things”,
As of April 2019, over 3,500 ICOs have tokens/coins to retail investors. Many companies rather than making the token that has the charac-
completed their fundraising, according to CoinLore. have been able to sidestep regulatory scrutiny by teristics of a security such as with STOs. As
In 2017, CB Insights reported that ICOs raised holding ICOs for “accredited investors” only. CoinPip CEO Anson Zeall has written, the
approximately US$6.3 billion, while in 2018 the Interestingly, amid this cooling period for the appeal of TSOs is their applicability to assets that
amount jumped to approximately US$19.2 billion, crypto community, a new fundraising method has cannot be securitised by mainstream finance such
according to Strategy & with some of the biggest arisen that many believe will eventually completely as art, collectables and intangible goods, and
ICOs to date, the top four being: EOS (US$4.1 replace the ICO, commonly referred to as a secu- assets where banks will not securitise. A TSO’s
billion), Telegram (US$1.7 billion), TaTaTu (US$575 rity token offering (STO). attributes mirror that of the underlying asset/
million), and Dragon (US$320 million). It is worth- security, but it does not have the same rights and
while to note that EOS and TaTaTu have both The rise of the STO claims like an STO. The benefits of a TSO include
chosen the Cayman Islands as their domicile, while The STO is similar to an ICO, but is generally a but are not limited to fractional ownership,
Telegram and Dragon have both chosen to domi- more developed and regulated version. The increased liquidity of assets, lower costs and
cile in the British Virgin Islands. underlying tokens/coins entitle the investor with faster settlement.
Despite this growth in ICO activity in 2018, ownership rights, voting rights, dividend rights or
the second half of the year saw a steep decline in some other incentive in exchange for their invest- Conclusion
ICO levels due to increasing regulatory concern ment. Regulation of STOs is based on local As we start to emerge from the crypto-winter of
over fraudulent offerings, leading to what the security laws, including KYC/AML requirements, 2018, we are seeing crypto and blockchain pro-
industry has dubbed the crypto-winter of 2018. In so each jurisdiction is able to leverage their exist- jects place increased attention to the maturing
the first quarter of 2019 there were around half ing securities regulations as their framework for regulatory landscape. The emergence of new
the number of ICO projects that have raised funds STOs. STOs are gaining popularity, which signals fundraising methods such as the STO and TSO is
compared to Q4 2018 and there was also a sharp a shift towards fully regulated securities in the indicative of the declining appeal of ICOs.
decline in the overall amount raised from ICOs crypto space. STOs first appeared in 2017 with Maintaining an continuing dialogue between
compared with previous quarters. However, two STOs raising a total of US$22 million. Fast industry participants and regulators will be vital
average amounts raised per ICO in the first quar- forward to 2018 and STO activity has skyrock- for the adoption of these fundraising methods
ter of 2019 is higher by US$2 million compared to eted to 28 successful STOs and US$442 million going forward.
14 www.inhousecommunity.comTHE BRIEFING
EVENT REPORTS
Hong Kong In-House-Outbound Forum 2019
P rior to Counsels of the Year Awards in
the evening, the In-House Community
hosted the In-House-Outbound Forum on
investment and an employment law update
from the Philippines. After a short break,
Christopher Gunson, partner from UAE
Emerico O. De Guzman
Managing Partner
ACCRALAW
PHILIPPINES
May 30 at the HKIAC. The forum brought law firm AMERELLER took the stage to talk
together about 50 senior in-house counsel about various legal systems in the Middle Christopher Gunson
in Hong Kong — mostly representing large East and how they have evolved, as well Partner
multinational corporations. Over the course as touching on the Dubai Free Zones and AMERELLER
of two hours, the attendees were updated dispute resolution in the region. The last UAE
on the legal landscape in four jurisdictions, presentation of the forum was given by
Justin Gisz
namely, India, the Philippines, UAE and Viet- Justin Gisz, partner from Vietnam law firm Partner
nam. The forum started with a passionate Frasers Law Company, who gave the attend- Frasers Law Company
presentation on the changing regulatory ees an overview on foreign investment rules VIETNAM
regime and growing opportunities in India in Vietnam, opportunities for investment
by Vaibhav Kakkar, partner at L&L Partners. and some challenges which in-house counsel Vaibhav Kakkar
Partner
Emerico O De Guzman, managing partner may face when doing business in Vietnam.
L&L Partners (formerly
of ACCRALaw, followed with his presenta- Our thanks go to all the speakers and Luthra & Luthra)
tion on recently liberalised areas for foreign co-hosting firms mentioned above. INDIA
16 www.inhousecommunity.comOnline, Cloud and e-Resources ...
www.inhousecommunity.com
The online home of the In-House Community,
www.inhousecommunity.com features vital daily legal
updates for in-house counsel, company directors and
compliance managers, and archived content from
asian-mena Counsel contributors.
2019
Add us to
Your Home Screen
“The In-house Community website provides the
window on the development of commercial law,
practice and compliance in the growth markets of Asia
and the Middle East”
Dr Justine Walker, advisor to
the British Banking AssociationTHE BRIEFING
Inaugural London event for In-House Community TM
B ritain and the City of London can be
described as being in a special place
right now and our inaugural In-House Con-
More than 90 delegates – the majority from
in-house departments – but including leading
barristers, professors of law and company
terparts and the progress of the Chinese
judiciary relating to patent cases. The event
also included a bomb shell from economist
gress event in London on June 3 was con- directors – engaged in topics relating to Michael Taylor that the city of Shenzhen
ceived specifically to address this situation Asia, the Middle East and Africa – and went alone accounted for 8 percent of all global
by bringing the best legal and business minds into some depth regarding the opportunities patent filings in 2016 – and this figure is only
together to help change perspectives and and risks relating to China and especially increasing. The programme ended with vet-
explode myths and misconceptions regard- regarding the Greater Bay Area and the Belt eran general counsel Evangelos Apostolou of
ing the emerging markets of Africa, the & Road Initiative. Of particular note was the Major Lindsey & Africa and Duc Trang shar-
Middle East, India and Greater China. revelation that foreign companies litigating ing their experiences, both good and bad, of
“Bringing It All Back Home – Asia and in China were statistically more likely to the reality of working as an in-house lawyer
the City of London” proved a great success. win their cases than their Chinese coun- in the Middle East and Asia.
Keynote speaker:
Christina Blacklaws, president of the
Law Society of England and Wales
Co-hosts and partnership
organisations:
In-House Community, Law Society of
England & Wales, Institute of Directors,
The China Britain Business Counsel,
American Bar Association
Co-Hosts:
Llinks Law Offices, Major Lindsey &
Africa, Praxonomy, Quinn Emanuel,
Reed Smith, Winston & Strawn
A special thanks on behalf of the In-House Community™
to all our speakers, which included: Bringing It
“A great event and very insightful about the role of in-house counsel in
Asia” – General counsel of a multinational company, based in London
All Back Home
Asia and the City of London
Michael J. Taylor Stefan M. Gannon Amir Singh Pasrich Charles Qin Patrick Zheng
Director Commissioner, Managing Partner Partner Partner
Cold Water Economics Resolution Office I.L.A. Pasrich & Llinks Law Offices Llinks Law Offices
Hong Kong Monetary Company, New Delhi
Authority
Evangelos Apostolou Sir William Blair Kate Vernon Sam G. Williamson Stephen C.
In-House Practice Group Associate Member of Partner Partner Mavroghenis
and Advisory Services 3 Verulam Buildings and Quinn Emanuel Quinn Emanuel Partner
EMEA and APAC Professor of Financial Urquhart & Sullivan, Urquhart & Sullivan, Quinn Emanuel
Law and Ethics
Major Lindsey & Africa LLP LLP Urquhart & Sullivan,
Queen Mary University of
London, Centre for LLP
Commercial Law Studies
Xiao Liu Gautam Bhattacharyya Mei Sim Lai OBE DL John N.M. McLean OBE Christina Blacklaws
Partner Partner and India Chairman Vice-Chair President
Quinn Emanuel Business Team Head The British Malaysian The Institute of Directors The Law Society of
Urquhart & Sullivan, Reed Smith Society (IoD) for the City of England and Wales
Hon Secretary and London and
LLP
Chairman Board Member
China Interest Group China Britain Business
Institute of Directors (IoD) Council (CBBC)
Stephen Denyer Dr Justine Walker Brinton M Scott Campbell M Steedman Patrick Dransfield
Director of Strategic Director of Sanctions Managing Partner Managing Partner Publishing Director
Relationships Policy Shanghai Middle East Asian-mena Counsel
The Law Society of UK Finance Winston & Strawn LLP Winston & Strawn LLP and Co-Director,
England & Wales Shanghai Representative In-House Community
Office (US)
18 www.inhousecommunity.com17th annual gathering of the Bangkok
In-House Community
T he most pressing challenges cited by
our In-House Community members
in Thailand this year were “keeping up with
data privacy and cyber security regula-
tions” and “the changes in legal work in an Desarack Teso, Microsoft
increasingly digital world”, so it was apt that
our 17th annual Bangkok In-House Com-
munity Congress on June 5 should open
with a practical presentation by Desarack
Teso, corporate, external & legal affairs
director at Microsoft Thailand on “Meeting
your privacy and security obligations in the
Satoshi Kawai, Managing Partner of
digital era”. Chaired by In-House Com- ing up your lawyers to do more important,
Chandler MHM cuts a cake in celebra-
munity founding director, Tim Gilkison, high-value work), and the importance of tion of the firm’s 15 years support of
Teso then joined a stellar panel including providing the right professional develop- the In-House Congress in Bangkok
Jackson Pek, chief legal officer at AirAsia ment environment to attract and retain the
Group, former in-house counsel and now best talent. The Congress closed with an engaging
a partner at Pisut & Partners, David Law- The Sofitel, Sukhumvit proved a com- session on anti-trust law developments from
rence, V Joseph Tisuthiwongse, a partner fortable venue for a day of vibrant com- Chandler MHM, but not before In-House
at Chandler MHM, and Peter Shelford, munity networking and engaging workshops Community’s Tim Gilkison thanked the firm
country managing partner in Thailand and for our over 130 attendees, including ses- for 15 straight years of support for the In-
co-head of DLA Piper’s Asia insurance sions on director’s liability risks and mitiga- House Community gathering in Thailand,
sector practice, to discuss technology and tion plans presented by Kudun & Partners, inviting the firm’s managing partner, Satoshi
talent management in the legal department, investment and financing opportunities in Kawai, to cut a cake in celebration.
with key discussion takeaways including the Thailand’s EEC, by Chandler MHM, recent Our thanks to all our speakers and
need to understand why you should invest dispute resolution trends and notable cases co-hosting firms for their support of this
in a particular technology (to reduce risk, presented by Pisut and Partners, and changes 17th annual Bangkok In-House Community
save time or eliminate repetitive tasks, free- in Thai labour law presented by DLA Piper. Congress.
A special thanks on behalf of the In-House Community™ to all our speakers, which included:
“The Congress went beyond my expectations” … “I can take [what
I’ve learnt] and apply it to my work” – Bangkok Congress delegate
Jackson Pek David Beckstead Nopamon Thevit Pranat Laohapairoj V. Joseph
Chief Legal Officer Counsel Intralib Counsel Tisuthiwongse
AirAsia Group Chandler MHM Limited Senior Associate Chandler MHM Limited Partner
Chandler MHM Limited Chandler MHM Limited
Komson Peter Shelford Kongkoch Pariyapol Kamolsilp Desarack Teso
Suntheeraporn Country Managing Yongsavasdikul Partner Corporate, External &
Of Counsel Partner Partner Kudun & Partners Legal Affairs Director
DLA Piper (Thailand) DLA Piper (Thailand) Kudun & Partners Limited Microsoft Thailand
Limited Limited Limited
David Lawrence Pisut Rakwong Wayu Tim Gilkison
Partner Founder and Managing Suthisarnsuntorn Founding Director
Pisut & Partners Partner Partner In-House Community
Pisut & Partners Pisut & Partners
Volume 16 Issue 7, 2019 19THE BRIEFING
MOVES
The latest senior legal appointments around Asia and the Middle East
AUSTRALIA
Jones Day has added Shannon Finch as a partner in the firm’s M&A tion, employment and labour disputes, and white-collar crime. Chan is a
practice in Sydney. Finch brings extensive experience in capital markets member of the Law Society of Hong Kong’s Arbitration Committee. He is
transactions, including IPOs, retail bonds, dual-tracks and crowdfund- admitted to the court in Hong Kong and New Zealand, and speaks English,
ing; public mergers, acquisitions and restructures; corporate govern- Cantonese and Mandarin. He qualified as a solicitor in New Zealand in
ance, including matters relating to directors’ duties and shareholder 2007 and in Hong Kong in 2014, and attended the University of Auckland.
activism; and listed entities and securities law. She is a guest lecturer
on securities law and disclosure regulation masters courses at the Uni- Reed Smith has added Mark West as a part-
versity of Sydney and University of NSW. She is also a regular speaker ner in its litigation practice in Hong Kong. West
at equity capital markets, global M&A, hybrids, directors’ duties and has extensive experience in advising and repre-
securities law conferences. senting Hong Kong-listed companies, multina-
tional companies and high net-worth individuals
on a wide array of regulatory investigations,
HONG KONG high-value and complex commercial litigation
Mark West
K&L Gates has hired Guiping Lu as a cor- and arbitration, white collar crimes and fraud
porate and capital markets partner in its Hong investigations, and prosecution defense. Previously co-head of regulatory
Kong office. Lu joins K&L Gates from the Hong at Kennedys in Hong Kong, he is a member of the Law Society of Hong
Kong office of Beijing-based Haiwen & Partners. Kong. He was admitted to the court in Hong Kong in 2002 and in England
His practice is focused on equity and debt capi- and Wales in 2009. West attended the University of Southampton and
tal market deals and cross-border M&A trans- the College of Law in the UK, and the Chinese University of Hong Kong.
actions, in addition to advising clients on private
equity, pre-IPO, venture capital financing, and Guiping Lu
various U.S. securities law matters. INDIA
Cyril Amarchand Mangaldas has added Richa Roy as a partner in its
King & Wood Mallesons has added Rachel Yu IBC and policy practice. She will be based out of Mumbai. She comes with
as a partner in the dispute resolution practice in an experience of over 12 years in banking and finance, debt restructuring
the Hong Kong office. Yu is a next generation dis- and bankruptcy, public policy, microfinance and social enterprises, private
pute resolution lawyer, who joins from Herbert equity and funds. Roy has served on and contributed to multiple financial
Smith Freehills. She has over 12 years of experi- sector reform committees of the Ministry of Finance, Ministry of Corpo-
ence advising clients, primarily on complex finan- rate Affairs and the RBI. Under the aegis of the Bankruptcy Law Reform
cial disputes. She regularly advises on regulatory Committee, she was instrumental in drafting the corporate insolvency
Rachel Yu
investigations by regulatory and enforcement provisions of the Insolvency and Bankruptcy Code 2016 and the CIRP
authorities, such as the Securities and Futures Commission, the Hong Kong Regulations. She is a 2005 NLSIU Bangalore graduate and a 2017 Oxford
Stock Exchange and the Hong Kong Monetary Authority, and on commer- (MPP) graduate. Roy has worked with ICICI Bank, where she was group
cial disputes, including mis-selling, fraud, injunctions, debt recovery, security head of the international banking legal team. She later moved to AZB &
enforcement, joint venture and shareholders’ disputes. Yu also advises Partners, where she worked for over eight years before attending Uni-
clients on associated PR and internal crisis management strategies. She is versity of Oxford to get her Master’s degree in Public Policy, following
fluent in English, Mandarin and Cantonese. Her clients include Chinese and which she worked on a range of public policy projects in trade policy and
global investment banks, retail banks, private equity funds, asset managers, banking regulation. As an expert, her views are often quoted in the media
brokerages, Chinese listed companies and high net worth individuals. and she has also authored various articles, which have been published in
legal journals and publications.
Reed Smith has added Stephen Chan as a partner in its litigation
practice in the Hong Kong office of Reed Smith DSK Legal has hired senior partners Aparajit Bhattacharya and
Richards Butler. He was previously a dispute Anjan Dasgupta, as well as partners Sharath Chandrasekhar, Nand
resolution partner in the Hong Kong office of Kishore, Aninda Pal and Harvinder Singh from HSA Advocates. The
Oldham, Lie & Nie. Before relocating to Hong hires add practice capability across finance and projects, core corporate
Kong in 2013, Chan was with McVeagh Fleming and M&A, and disputes and tax practices, and will also bring their entire
in New Zealand. He is an experienced advocate, respective teams across offices in New Delhi, Mumbai and Bangalore.
who focuses on commercial litigation, interna- The firm has also added projects partner Geeta Saha, who previously
Stephen Chan
tional arbitration, intellectual property litiga- practised at her own independent firm, to its Mumbai office.
20 www.inhousecommunity.comJAPAN
K&L Gates has added Tsuguhito Omagari speare joins KorumLegal’s Singapore office,
as a corporate / M&A partner in its Tokyo after spending the last three years building
office. He rejoins the firm from local Tokyo the Asia-Pacific corporate practice at Squire
firm Sonderhoff & Einsel. Omagari focuses Patton Boggs in Singapore. With nearly 15
on domestic and cross-border M&As, private years’ experience in corporate transactions,
investment in public entities, private equity, he brings strong legal expertise and a passion
domestic and international joint ventures, real to drive legal innovation, which he sees as
Tsuguhito Omagari Tessa Whittle
estate investment transactions, and various ripe for change. On the other hand, Whittle
other corporate and related regulatory matters. He also advises inter- expands her role in KorumLegal, having previously been a managing
national companies on investing and doing business in Japan. consultant working with one of KorumLegal’s key financial institution cli-
ents for the last 18 months. With over 14 years of experience advising on
corporate, commercial and compliance / regulatory legal matters, she
SINGAPORE will help drive quality legal solutions and legal operations at KorumLegal.
Baker McKenzie Wong & Leow, the
member firm of Baker McKenzie International
in Singapore, has added Kunal Katre as a UAE
local principal in the finance and projects prac- Akin Gump has added Rizwan Kanji as
tice and Xavier Amadei as local principal in a partner in its Dubai office. He joins from
its capital markets practice. Joining from Allen another large international law firm in Dubai,
& Overy, Katre has broad banking experi- where he served as the lead of that firm’s
Kunal Katre
ence spanning a wide range of transactions, global capital markets working group and as
including general syndicated loans, leveraged one of the deputy heads of its financial ser-
and acquisition financing, private equity led vices industry focus group. Kanji’s practice
Rizwan Kanji
sponsor financing, margin lending, structured focuses on debt capital markets, finance and
financings, and P2P loans. His practice focuses securitisations using both conventional and Islamic finance structures.
on matters in South and Southeast Asia, par- Particularly active in the Middle East and Turkey for over a decade
ticularly in India, Indonesia and Malaysia. Katre and, more recently, in Africa, he advises investment banks, financial
is admitted to practise in India and England & Xavier Amadei
institutions, multilateral development banks, sovereign states, insur-
Wales. Amadei, who joins from Linklaters, has ance companies and multinational regional corporations on high-profile
extensive experience acting on cross-border equity and debt offerings, transactions. Well known for his excellent client and technical skills, and
advising investment banks, issuers (including sovereigns) and sharehold- his ability to structure conventional financing, as well as Shari’a- com-
ers throughout the Asia Pacific region. His transactional experience pliant sukuk, Kanji has developed a particular reputation for advising
includes SEC-registered offerings and offerings pursuant to Regulation on “first of its kind” transactions. For example, he advised on the first
S, Rule 144A, as well as other private placements. He has also advised sukuk out of Turkey, the first syndicated Murabaha financing out of
clients on matters of bribery, corruption, fraud and economic sanction Russia, the first “Blue Bond” in the world and the establishment of the
regimes and on the implications of the EU Alternative Investment Fund largest sukuk program to date. He received his LLB from the University
Managers Directive. He is admitted to practise in Hong Kong, Paris and of Leicester and his LLM from Southampton University. He is qualified
New York. in England and Wales.
KorumLegal has expanded its capabilities Ashurst has further strengthened its Middle East oil and gas team
and offerings with the addition of Rob Shake- with the addition of Luke Robottom as a partner in its global projects
speare and Tessa Whittle to their HQ practice, based in Abu Dhabi. Robottom joins from White & Case in Abu
team. Shakespeare joins as general manager Dhabi, where he has been based since 2009. He has extensive experi-
and managing consultant for Southeast Asia, ence advising on the development and financing of major infrastructure,
while Whittle, previously a consultant with power and oil and gas projects, including numerous midstream and
KorumLegal, has expanded her role to head of downstream deals. He also has a strong transactional construction
Rob Shakespeare
legal, as well as managing consultant. Shake- practice. He advises sponsors, owners and lenders, from pre-contract
speare and Whittle, located in Singapore and Hong Kong, respectively, negotiation through contract administration and post-contract dispute
bring extensive private practice and in-house legal experience. Shake- resolution.
Volume 16 Issue 7, 2019 21You can also read
