MCI (P) 003/02/2023 issn 0219 – 6875 KDN PPS 1867/10/2015(025605) INDONESIA’S FIRMS TO WATCH LEADERS DRIVING INNOVATION SE ASIA’S RACE TO NET ZERO
OVERVIEW Asian Legal Business is proud to be back for the ALB Indonesia In-House Legal Summit this 25 October 2023 in Jakarta. This signature event is tailored to bring together leading senior-level corporate counsel, business leaders and private practice lawyers. At the summit you will get an opportunity to interact with the most brilliant minds in the region and keep up-to-date with Indonesia’s emerging legal landscape. TOPIC HIGHLIGHTS • Indonesia Legal Landscape - An Overview • Dispute resolution and Mediation in the Digital Age - Shifting the Paradigm • The Rise of Indonesia’s Workplace Harassment - Spotlight • Competition Regulations in Indonesia - Latest Insights • Indonesia’s PDP Law & Cybersecurity - A year in Review • Data Governance: Mitigating Compliance Risks through Effective Management • Sustainability, Climate Change & Net Zero - ESG Focus • Disruptive Digital Transformation: How to Create Efficiencies and Manage Risks by Designing an Automated Contract Workflow • Journey towards efficiency in corporate legal work FOR SPONSORSHIP OPPORTUNITIES, PLEASE CONTACT: Amantha Chia amantha.chia@tr.com / (65) 6973 8258 FOR SPEAKING OPPORTUNITIES, PLEASE CONTACT: Nafilah Noor nafilah.noor@tr.com / (65) 6973 8921 FOR MORE INFORMATION, KINDLY VISIT www.legalbusinessonline.com/ihs/indoihls2023 PROUDLY PRESENTED BY 25 OCTOBER - PULLMAN JAKARTA INDONESIA THAMRIN CBD ALB INDONESIA IN-HOUSE LEGAL SUMMIT 2023 PRESENTING SPONSORS PANEL SPONSORS Photos from live event that took place in Indonesia In-House Legal Summit 2022 on 19 October at Shangri-la Jakarta
1 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM COVER STORY 18 Asia 40 Under 40 The ALB Asia 40 Under 40 continues its tradition of recognising exceptional legal talent across Asia, selected from 600 outstanding nominees. The lawyers featured on the list represent diverse jurisdictions and practice areas. They were meticulously chosen through a rigorous selection process, evaluating their work, client and colleague recommendations, and their potential for future growth. The list is in alphabetical order and some lawyers have been profiled. FEATURES 14 Arbitration ambitions In recent years, the Japanese government has been enhancing the country’s image as a preferred choice for international arbitration and dispute resolution. The latest steps include modernising the Arbitration Act to match international practice. Lawyers share how effective the legislation can be and what more the government should do to support Japan’s arbitration ecosystem. Plus: - CIETAC 26 In with the new In recent years, more and more law firms have brought on board chief innovation officers to shake things up, with the aim of getting vital competitive advantage in an industry often described as stagnant. Holders of this relatively new title share their vision and action plans on how to bring about effective disruptions to take their organisations forward. 30 ALB Indonesia Firms To Watch 2023 Fuelled by a strong economy and changing regulations, Indonesia’s legal landscape is changing, leading to the emergence of a new breed of innovative law firms that combine local expertise with global perspectives. ALB highlights these leading firms based on their ability to overcome challenges and make significant impact on the market. The firms are listed alphabetically, and some firms have been featured with profiles. 34 The race to net zero ASEAN countries’ commitment to meet ambitious emission targets, including fast-evolving energy regulation, development of carbon trading markets and innovative investment policies in the renewable energy sector, are bringing a new variety of work to lawyers in the region. 38 New York calling The backdoor listing of VinFast and proposed IPO of VNG on U.S. stock exchanges have shed light on new paths for Vietnamese companies to raise capital in a volatile market, but they do not come without their share of stiff regulatory hurdles. BRI EFS 3 The Briefing 4 Forum 5 Deals 6 Explainer 8 Appointments 11 Q&A Plus: - CIETAC CONTENTS 34 The race to net zero Image: Owlie Productions/Shutterstock.com
2 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM Asian Legal Business is available by subscription. Please visit www.legalbusinessonline.com for details. Asian Legal Business has an audited average circulation of 11,402 as of 30 September 2016.Copyright is reserved throughout. No part of this publication can be reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as Asian Legal Business can accept no responsibility for loss. MCI (P) 003/02/2023 issn 0219 – 6875 KDN PPS 1867/10/2015(025605) Thomson Reuters 18 Science Park Drive Singapore 118229 / T (65) 6775 5088 / F (65) 6333 0900 10/F, Cityplaza 3, Taikoo Shing, Hong Kong / T (852) 3762 3269 www.thomsonreuters.com Celebrating the class of 2023 The annual wait is over, and the 40 Under 40 list of outstanding young legal professionals in the Asian region is now here. As always, we showcase a cohort of remarkable lawyers who have already made significant contributions to the legal industry early in their careers. Picked from close to 600 submissions from across the region – a record for this list – these lawyers have truly earned their place in the 40 Under 40. Our editorial team embarked on an extensive and rigorous selection process, meticulously identifying and evaluating legal practitioners under the age of 40, who have demonstrated exceptional skills, professionalism, and dedication. These individuals exhibit not only legal prowess but also a deep commitment to advancing the legal profession and serving their communities. In this issue, we delve into the profiles of some of these outstanding lawyers, exploring their diverse practice areas, notable achievements, and the impact they have made on the legal landscape. Their stories inspire and exemplify the qualities that define legal excellence and leadership, providing a glimpse into the future of our industry. We extend our heartfelt congratulations to all the esteemed honourees of the ALB 40 Under 40 – Class of 2023. Your accomplishments embody the spirit of legal excellence, and we are excited to witness the remarkable journeys that lie ahead. We hope this issue serves as a source of motivation and pride for the legal community, encouraging further growth and collaboration, and driving the industry towards even greater heights. RANAJIT DAM Managing Editor, Asian Legal Business, Thomson Reuters HEAD OF LEGAL MEDIA BUSINESS, ASIA & EMERGING MARKETS Amantha Chia amantha.chia@thomsonreuters.com MANAGING EDITOR Ranajit Dam ranajit.dam@thomsonreuters.com ASIA JOURNALIST Sarah Wong sarah.wong@thomsonreuters.com ASIA WRITER Nimitt Dixit nimitt.dixit@thomsonreuters.com RANKINGS AND SPECIAL PROJECTS EDITOR Wang Bingqing bingqing.wang@thomsonreuters.com COPY & WEB EDITOR Rowena Muniz rowena.muniz@thomsonreuters.com SENIOR DESIGNER John Agra john.agra@thomsonreuters.com TRAFFIC/CIRCULATION MANAGER Rozidah Jambari rozidah.jambari@thomsonreuters.com SALES MANAGERS Hiroshi Kaneko Japan (81) 3 4520 1192 hiroshi.kaneko@thomsonreuters.com Jonathan Yap Indonesia, Singapore (65) 6973 8914 jonathan.yap@thomsonreuters.com Krupa Dalal India, Middle East, Singapore (91) 22 6189 7087 krupa.dalal@thomsonreuters.com Romulus Tham Southeast Asia (65) 6973 8248 romulus.tham@thomsonreuters.com Steffi Yang South and West China (86) 010 5669 2041 qifan.yang@thomsonreuters.com Steven Zhao China Key Accounts (86) 10 6627 1360 s.zhao@thomsonreuters.com Yvonne Cheung China Key Accounts, Hong Kong and Korea (852) 2847 2003 yvonne.cheung@thomsonreuters.com SENIOR EVENTS MANAGER Julian Chiew julian.chiew@thomsonreuters.com SENIOR EVENTS MANAGER, AWARDS Tracy Li tracy.li@thomsonreuters.com
3 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM THE BRIEFING: YOUR MONTHLY NEED-TO-KNOW U.S. DEALS KEEP LAW FIRMS The hourly billing rate of celebrity litigator David Boies, as revealed by his firm during a class action lawsuit brought by victims of the late financier Jeffrey Epstein against Deutsche Bank. BUSY AMID GLOBAL M&A LULL (Reuters) With worldwide mergers and acquisitions mired in their worst slump in a decade, U.S. dealmaking has emerged as a bright point for law firms that advise on corporate transactions, the London Stock Exchange Group said in its rankings of M&A legal advisers. U.S. dealmaking accounted for a greater share of overall worldwide M&A during the first nine months of 2023 than last year, rising from 42 percent to 44 percent, LSEG said. The total value of globally announced M&A deals in the first three quarters of 2023 was $2 trillion, a 27 percent drop compared to the same period last year, according to LSEG. This year marked the slowest nine-month dealmaking period since 2013. Kirkland & Ellis took the top spot in LSEG’s principal adviser ranking by value of globally announced deals through the third quarter. The Chicago-founded firm worked on about $265 billion worth of deals. Kirkland was also LSEG’s top-ranked legal adviser by value for deals with any U.S. involvement and deals targeting U.S. companies. $2,110 The UK’s Macfarlanes has become the second law firm to announce a deal with AI startup Harvey this year, after a portion of the firm tested out the technology. Allen & Overy earlier said it would use Harvey for some document drafting and research. IN THE NEWS The UK’s Solicitors Regulation Authority has shut Axiom Ince, shortly after the firm filed a notice with the court giving notice of its intention to appoint administrators. The firm had previously told the SRA that it could not continue “in its current format.” “THIS LAWSUIT IS THE MOST RECENT IN [ELON MUSK’S] MISSION TO PROVE THAT CONTRACTS BIND OTHERS, NOT HIM.” QUOTE UNQUOTE U.S. law firm Wachtell, Lipton, Rosen & Katz files a motion in response to X Corp’s lawsuit demanding the return of most of the $90 million in legal fees it received from Twitter before the Musk takeover. (Reuters) Australian law firms finished the second half of fiscal year (FY) 2023 strong, rebounding in the face of softening demand and rising expenses in the first half of the year. That’s among the takeaways from the 2023 Australia: State of the Legal Market Report, which examines Thomson Reuters Financial Insights data from 20 law firms in Australia alongside metrics from more than 230 firms in the United States and the UK. The report found that Australian firms offset the first-half decline in demand with a 6 percent surge in the second half of FY 2023 and solid growth in worked rates, which jumped 5.3 percent year-on-year. Australian firms’ second-half comeback was driven, in part, by the rise of counter-cyclical practices. Counter-cyclical practices, including dispute resolution, and insolvency and restructuring, accounted for one-third of all hours logged. AUSTRALIAN LAW FIRMS RALLY DESPITE EXPENSE GROWTH CHALLENGES 90% - Proportion of small-to-medium-sized law firms in the UK that are optimistic about their financial performance in 2024, according to a survey by NatWest.
4 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM BRI EFS DENNIS FUNG, chief operating officer and chief financial officer, Simmons & Simmons (Asia) In the complex legal landscape we navigate a multitude of risks daily across our Asia offices. - Conflict of interest: Transparency is key, with our policy mandating the prompt disclosure of any personal conflicts of interest, ensuring decisions prioritise clients. - Confidentiality: Client confidentiality is paramount. Our strict guidelines protect sensitive information, disclosed only when mandated by law. - Whistleblowing: A culture of openness prevails, with our whistleblowing policy empowering prompt reporting of unlawful conduct without fear of reprisal, fortifying our firm’s integrity. - Anti-money laundering: Unwavering commitment to anti-money laundering regulations assures clients of diligent transaction handling. - Sanctions: Stringent compliance with sanctions safeguards our reputation and clients’ interests. - Anti-bribery and corruption: We secure business through legitimate means, adhering to anti-bribery and corruption laws worldwide. - Anti-facilitation of tax evasion: Our zerotolerance stance shields against tax evasion, ensuring unwavering honesty and integrity. - Mandatory disclosure: Proactive reporting of relevant arrangements to tax authorities underscores our commitment to transparency. KENNETH GOH, head of risk and compliance, Dentons Rodyk It is critical for us as risk management cuts across nearly all aspects of our firm. From our practice areas to non-practice areas such as IT, human resource, finance and office administration, there are risks, which can result in reputational damage, financial loss, and civil or criminal liability, or professional liability. While the firm has a dedicated risk and compliance team, a firm-wide risk management approach is adopted. There are specially assigned senior partners in the firm, who, together with the chief operating officer, assist the risk and compliance team in dealing with risk management issues. Big-picture risks include: - Money laundering and financing of terrorism: Risk of inadvertently facilitating an illicit transaction is a pervasive risk, and one that must be mitigated by careful client due diligence measures on an ongoing basis. - Sanctions: Non-compliance with sanctions can have serious repercussions. Our anti-money laundering and financing of terrorism policy covers this risk and explains the steps required for compliance with all relevant sanctions regimes. - Cybercrime: Technology is a double-edged sword. The way we work has changed immeasurably for the better because of technology. Yet, it also presents opportunities for bad actors, e.g., through malware or phishing, to gain access to confidential or price-sensitive information. - Data breaches: The risk of disclosing personal data of clients or staff to a third party can happen easily as all it takes is an email with personal data or other sensitive data inadvertently sent to wrong recipient. - Inability to operate in emergencies or disasters: It would be calamitous if we are unable to continue operating because of a natural disaster or other emergency. A business continuity plan is essential to ensure our firm can continue operations. ABHISHEK AMAL SANYAL, chief risk, audit and compliance officer, Khaitan & Co As a type of professional services firm, law firms FORUM TAKE NO CHANCES With threats, including cyber-attacks and data breaches, on the rise, law firms have become increasingly aware of the strategic benefit of internal risk management. Risk management leaders share with ALB on what their firms’ priorities are when tackling potential pitfalls. HOW IMPORTANT IS THE INTERNAL RISK MANAGEMENT FUNCTION IN YOUR FIRM? WHAT ARE THE BIG-PICTURE RISKS CURRENTLY TOP OF MIND OF YOUR INTERNAL RISK MANAGERS? DENNIS FUNG KENNETH GOH ABHISHEK AMAL SANYAL
5 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM BRI EFS not only inherit the risks associated with operating as a professional services firm, but also must bear an additional risk load, which is inherent to providing legal services that are universally taken to be high on the scale of confidentiality, privacy, and sensitivity. Keeping this in mind, the importance of having an internal, integrated, risk management, compliance and internal audit framework at law firms is underscored. The presence of such an internal, integrated framework empowers law firms to control not only their own exposure to financial impact, regulatory scrutiny, and reputational loss, but also control, very importantly, for any adverse impact on the client. The top risks that stand out for law firms today are related to the fairly recent and ongoing adoption of artificial intelligence into the daily fabric of legal work; the protection of client data from an information security and privacy perspective; the ongoing compliance to an ever-evolving and complex regulatory regime (such as for the requirements for prohibition of insider trading, and crossborder requirements for service provisioning); and, the ongoing management of client and vendorrelated risks (such as for anti-money laundering / anti-terrorist funding considerations, and supplierspecific ethics and related service consumption considerations). DEALS $1.5 BLN Vietur Consortium’s winning bid to build a terminal at Long Thanh Airport Deal Type: Projects Firm: Herbert Smith Freehills Jurisdictions: Turkey, Vietnam $1.27 BLN ZG Group’s listing on the Hong Kong Stock Exchange (HKSE) through SPAC merger with Aquila Deal Type: M&A Firms: Allen & Overy; Freshfields Bruckhaus Deringer; JunHe; Kirkland & Ellis; Shihui Partners Jurisdictions: China, Hong Kong $1 BLN Cainiao Smart Logistics Network’s planned listing on HKSE Deal Type: IPO Firms: Fangda Partners; Freshfields Bruckhaus Deringer; Jingtian & Gongcheng; Simpson Thacher & Bartlett Jurisdictions: China, Hong Kong $841 MLN Cheche Group’s SPAC merger with Prime Impact Acquisition I Deal Type: M&A Firms: Goodwin Procter; Han Kun Law Offices; Jingtian & Gongcheng; Wilson Sonsini Goodrich & Rosati; Zhong Lun Law Firm Jurisdictions: China, U.S. $750 MLN Kokusai Electric’s proposed IPO on the Tokyo Stock Exchange Deal Type: IPO Firms: Anderson Mori & Tomotsune; Davis Polk & Wardwell; Nishimura & Asahi; Simpson Thacher & Bartlett Jurisdiction: Japan $680 MLN Glenmark Pharmaceuticals’ sale of Glenmark Life Sciences to Nirma Deal Type: M&A Firms: Khaitan & Co; S&R Associates; Trilegal Jurisdiction: India $541 MLN Creation of Vertex Holdings’ fifth fund targeting SE Asia, India Deal Type: Funds Firm: Baker McKenzie Jurisdictions: Singapore, India $250 MLN KKR’s investment in Reliance Retail Ventures Deal Type: M&A Firms: Cyril Amarchand Mangaldas; Davis Polk & Wardwell; Shardul Amarchand Mangaldas; Simpson, Thacher and Bartlett Jurisdiction: India
6 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM BRI EFS Image: Vitalii Vodolazskyi/Shutterstock.com EXPLAINER COULD PROPOSED INDIA COMPETITION RULES USHER NEW ERA OF ANTITRUST REGULATION? The Competition Commission of India (CCI), the country’s antitrust regulator, has come out with a draft framework for commitment and settlement of cases, as well as a draft merger control guideline which, when finalised and enforced, are likely to substantially overhaul antitrust regulation in the country. The CCI’s draft regulations for commitments and settlements (also known as S&C regulations) provide a mechanism for companies in the early stages of investigation to close an inquiry by offering behavioural and structural commitments which, when approved by the CCI, need to be carried out in a timebound manner. The intention behind the S&C regulations is to expedite dispute resolution and reduce costs by avoiding an otherwise lengthy investigation process and consequently avoid appellate litigation in courts. Meanwhile, the CCI) is striving to capture notable mergers and acquisitions, especially those that are not widely reported in the digital industry, and has introduced draft regulations aimed at redefining the reporting criteria for such transactions. The primary aim is to identify the Indian connection or significant business operations (SBO) that would necessitate reporting to the CCI. HOW ARE BUSINESSES OPERATING IN INDIA RECEIVING THE S&C REGULATIONS? While businesses have welcomed the draft regulations, some have raised concerns around certain provisions that are likely to de-incentivise companies from availing of its provisions. “Parties will consider the benefit of these mechanisms in reducing the costs of a lengthy inquiry process and a more efficient resolution of potential competition concerns,” says Ravisekhar Nair, the head of competition at Indian law firm Economic Laws Practice. But Nair explains that there are concerns around certain provisions of the S&C regulations that may need more clarification to make them more attractive to parties considering either a commitment or a settlement with the CCI. “These mechanisms were introduced with the objective of effective market corrections, with reduced costs for parties and reduced regulatory burden for the CCI. That said, including certain changes to these regulations, especially concerning confidentiality of information submitted to the CCI, reduction in the extent of the settlement amount, lower application fees, could make these mechanisms more attractive for parties, resulting in more parties opting in for settlement and commitment procedures.” While the S&C regulations have the intent of reducing regulatory burden on the CCI, its new draft CCI (Combination) Regulations (or merger regulations) increase its purview over M&A activity in the country. HOW DO THE NEW MERGER REGULATIONS CHANGE THE CCI’S M&A CONTROL PROCESS? The new merger control regulations will completely overhaul the existing mechanism for notification of transactions with the CCI, giving life to concepts introduced by the Competition (Amendment) Act earlier this year, including ‘deal value threshold’ (DVT) and ‘substantial business operations’ SBO), to cast a wider net over deals that might not otherwise have been notifiable. Under the new proposed regime, the DVT is breached, and a notification is triggered where the value of a transaction exceeds 2,000 crore rupees ($251 million), provided that the target enterprise in question has ‘substantial business operations in India’. “For DVT to apply, a target company must have SBO in India, and the draft regulations have included parameters such as number of users, visitors, subscribers, customers to ascertain whether an entity has SBO in India; however, these terms should be further clarified through examples or u u
7 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM BRI EFS additional guidance from the CCI,” Nair says. The definition of SBO has been introduced given the increase in the number of technology and internet businesses in the country, which often go under the radar in the current regime. “Given the broad parameters for deal value calculation and SBO in India, there will likely be an increase in the number of transactions that may be notified to the CCI in the near future,” Nair says. WHAT STEPS CAN COMPANIES TAKE TO PREPARE FOR THE NEW MERGER REGULATIONS? Businesses looking to undertake M&A in India, particularly tech and internet companies, will have to re-align their calculation of deal value and business operations in the country in line with the proposed merger regulations. “Given some of the ambiguities surrounding the parameters for calculating deal values and SBO in India, one might see parties going back to the drawing board and finding the best way to navigate through some of these unchartered regulatory territories,” Nair says. An increase in notifiable transactions that is likely under the merger regulations, may also extend approval timelines for deals, Nair adds. “The CCI’s track record under the combination regime has been stellar, and CCI has typically approved transactions well within stipulated timelines. However, given the ambiguities around DVT and SBO, a larger number of transactions might be notified to the CCI, since parties may opt to notify transactions where there is a lack of clarity to avoid scrutiny; this, in turn, would likely add to CCI’s existing regulatory burdens and extend approval timelines since CCI’s resources might become fairly stretched due to an increased number of filings.” u WHO’S WHO AT BANKMAN-FRIED’S FRAUD TRIAL (Reuters) Sam Bankman-Fried’s trial places the former billionaire in a Manhattan courtroom alongside prosecutors steeped in financial crimes and political corruption cases, a veteran judge, and former friends and colleagues set to testify against him. Here’s who will play key roles during the trial, which prosecutors say could last up to six weeks: THE DEFENDANT Bankman-Fried, 31, has pleaded not guilty to charges of fraud and conspiracy over the November 2022 collapse of the FTX cryptocurrency exchange he founded three years prior. Prosecutors say he stole billions in FTX customer funds to plug losses at Alameda Research, a crypto hedge fund he owned. The Massachusetts Institute of Technology graduate rode a boom in the values of Bitcoin and other digital assets to an estimated $26 billion net worth and gained influence in Washington by donating millions to U.S. campaigns, before a wave of customer withdrawals led FTX to bankruptcy. THE PROSECUTORS The team of six prosecutors handling the case has been led by Danielle Sassoon and Nicolas Roos. Sassoon is known for prosecuting Lawrence Ray, a man convicted last year of sex trafficking and extorting New York college students. Roos led the prosecutions of former Rudolph Giuliani associates Lev Parnas and Igor Fruman, who were convicted of violating campaign finance laws. He also prosecuted Nikola Corp founder Trevor Milton, who was convicted in 2022 of lying to investors. The team is overseen by Damian Williams, the U.S. Attorney for the Southern District of New York. Williams’ prosecutions of Bankman-Fried and other former high-flying crypto executives such as Celsius’ Alex Mashinsky and TerraLuna’s Do Kwon have solidified his reputation as the top cop for digital assets. THE DEFENSE LAWYERS Mark Cohen and Christian Everdell of law firm Cohen & Gresser are leading Bankman-Fried’s defense. Both previously represented Ghislaine Maxwell, who was convicted in 2021 of recruiting and grooming teenage girls for abuse by Jeffrey Epstein. Cohen previously represented Peter Black, who in 2014 was found by a jury to be not liable on insider trading charges brought by the U.S. SEC. Everdell prosecuted Arthur Budovsky, a co-founder of digital currency firm Liberty Reserve who pleaded guilty in 2016 to helping cyber criminals launder money. THE WITNESSES Three former members of Bankman-Fried’s inner circle - former Alameda chief executive Caroline Ellison, former FTX technology chief Gary Wang and former FTX engineering chief Nishad Singh - are set to testify against him after pleading guilty themselves to fraud charges. Ellison, Bankman-Fried’s onetime romantic partner, met the defendant while they were both traders at Jane Street Capital and moved over to Alameda despite her skepticism about crypto. Bankman-Fried was jailed after sharing with a New York Times reporter some of Ellison’s personal writings from before FTX’s collapse, in which she described feeling hurt about their breakup and overwhelmed at work.
8 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM BRI EFS APPOINTMENTS GO FUJIMOTO LEAVING Oh-Ebashi LPC & Partners JOINING Atsumi & Sakai PRACTICE Corporate LOCATION Tokyo PAUL HASWELL LEAVING Seyfarth Shaw JOINING K&L Gates PRACTICE TMT LOCATION Hong Kong KENTA NOBE LEAVING Baker McKenzie JOINING Atsumi & Sakai PRACTICE Corporate LOCATION Tokyo ALISON LEE LEAVING Debevoise & Plimpton JOINING Mayer Brown PRACTICE M&A LOCATION Hong Kong LONG GIA NGUYEN LEAVING Baker McKenzie JOINING Tilleke & Gibbins PRACTICE Real Estate LOCATION Ho Chi Minh City YOUNG SUK PARK LEAVING KL Partners JOINING Shin & Kim PRACTICE Dispute Resolution LOCATION Seoul ANTHONY PATTEN LEAVING King & Spalding JOINING Herbert Smith Freehills PRACTICE Project Finance LOCATION Singapore USHAN PREMARATNE LEAVING Withers KhattarWong JOINING Meritus Law PRACTICE Dispute Resolution LOCATION Singapore FRANS SIHASALE LEAVING Widyawan & Partners JOINING TnP Law Firm PRACTICE M&A, Banking & Finance LOCATION Jakarta U.S. IP BOUTIQUE OPENS IN TOKYO WITH MWE PARTNER HIRE U.S. intellectual property boutique Groombridge, Wu, Baughman & Stone (GWBS) has established an office in Tokyo and hired patent litigator Maxwell Fox from McDermott Will & Emery to lead it. For GWBS, which was set up barely nine months ago, the Tokyo outpost becomes the third office, and its first outside the U.S. In a statement, it said the new office would support Japanese and East Asian clients in industries including life sciences/ bio-pharma, electronics, automotive, chemicals, telecom and consumer products on IP disputes in the U.S. “We are excited to expand our global footprint and establish a presence in Japan. We have been committed to this critical market,” said partner Nicholas Groombridge in the statement. “We will grow and deepen our relationships with world-leading science and technology companies based in Japan and Asia.” Fox has spent the last 17 years in Tokyo and is authorised as a gaikokuho jimu bengoshi (licensed foreign lawyer). He advises on patent cases and represents clients before U.S. District Courts, the International Trade Commission, the Federal Circuit, and the Supreme Court. Fox’s patent expertise spans telecommunications and network security, chemical compounds and manufacturing processes, imaging solutions, digital displays, medical devices and pharmaceutical innovations. GWBS was founded last November by four patent litigators who had previously worked together at Paul, Weiss, Rifkind, Wharton & Garrison, namely Groombridge, Jennifer H. Wu, J. Steven Baughman and Eric Alan Stone. The firm now has 25 lawyers in the U.S., including seven partners.
Legal Corporate and Fiduciary Consulting Beijing British Virgin Islands Cayman Islands Guernsey Hong Kong Ireland Jersey London Luxembourg Shanghai Singapore Tokyo The point of change. We know there is no one-size-fits-all. This is why our sustainable investment and legal experts work with clients on bespoke solutions for turning sustainability and impact goals into action across the investment lifecycle. ogier.com/esg 改变的重点 我们知道没有万能的方案。 因此我们的可持续投资和法律专家为 客户定制所需的咨询及执行方案， 于不同的投资阶段实践可持续发展及 影响力目标。
10 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM BRI EFS Singapore has taken a major step towards becoming Asia’s ESG hub as the island nation is poised to pioneer a set of mandatory climate-related disclosures (CRD) rules for all listed companies from financial year 2025. Singapore’s Sustainability Reporting Advisory Committee (SRAC) recommended that issuers on the Singapore Exchange report their climate impact in line with the standards set by the International Sustainability Standards Board (ISSB). Concurrently, the public is also being consulted on whether similar requirements should be applied to large non-listed companies further down the road. Specifically, non-listed companies with an annual revenue of at least S$1 billion ($730 million) could be subject to CRD from financial year 2027. Following a review in 2027, similar requirements might be extended to cover non-listed companies with an annual revenue of between $100 million and $1 billion by around financial year 2030. Joseph Chun, ESG partner at Shook Lin & Bok, says the proposed CRD rules have catapulted Singapore to the forefront of ESG regulations and green finance development in Asia, especially “it is understood that there are currently no other Asian jurisdictions proposing or implementing mandatory climate reporting for non-listed companies,” says Chun. Under the proposal, all listed companies will be required their Scope 1 emissions – direct emissions caused from companies’ activities, and Scope 2 emissions – those resulting from their production processes. In addition, “companies will be granted at least the same temporary transition reliefs to provide certain information or make certain disclosures, including on its scope 3 greenhouse gas (GHG) emissions,” notes Chun. Scope 3 emissions refer to those under the control of parties outside of the company’s operations on the value chain, including suppliers or customers. He adds that ISSB requirements stated that companies should use “reasonable and supportable information available to them at the reporting date without undue cost or effort” when making certain disclosure requirements. Those include climate-related scenario analysis, identification of climate-related risks and opportunities, determination of anticipated financial effects of a climaterelated risk or opportunity, and measurement of Scope 3 GHG emissions. When it comes to filing, corporates should note that the reports should be filed in a digitally structured format as a separate report or as part of the annual report within the existing statutory timelines for companies to file financial statements. “If more time is required to prepare the report, companies can apply for an extension of time to hold their Annual General Meeting or to file annual returns,” says Chun. The regulatory updates for listed companies in the ESG arena are expected to advance the city-state’s image as a green business powerhouse. But, the implementation process is not without potential challenges. For instance, cost of reporting and assurance, conducting climate-related scenario analysis, determining the anticipated financial effects of a climate-related risk or opportunities and linking this with the company’s financial statements could all present complications for targeted companies, especially with limited resources. Measuring Scope 3 emissions is another tall order, as listed corporates will be required to map their value chain to obtain data from the upstream and downstream activities in the chain, including from entities in and outside Singapore that are not legally required to measure their emissions data and are not doing so voluntarily, according to Chun. “Another potential challenge, at least in the initial years, may be the time constraint of submitting the report within the prescribed statutory timeline,” he adds. To tackle these issues pre-emptively, Chun calls on listed companies to regularly review their supply chain contracts “to ensure that suppliers are obliged to measure and provide relevant climaterelated data to concerned companies and collaborate with these companies on mitigating climate-related risks, capturing climate-related opportunities and achieving climate-related targets”. Companies should also keep abreast of developments in greenwashing liability to manage greenwashing risks that could befall their clients, he adds. Overall, Chun is convinced that the proposed rules could buttress Singapore’s ESG regulatory framework and green credentials in the long run. “This wider adoption of climate reporting aligns with Singapore’s plan to mobilise financing to catalyse Asia’s net-zero transition and decarbonisation activities by easing the data constraint to facilitate green finance flows into Singapore, accelerating the growth of Singapore’s existing ecosystem of carbon services, developing capabilities in our ecosystem for professional services in sustainability reporting and assurance, and lowering compliance costs for climate reporting through economies of scale,” says Chun. SG BOOSTS GREEN CREDENTIALS THROUGH PROPOSED CLIMATE DISCLOSURE RULES Image: SAMMYEK/Shutterstock.com
11 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM BRI EFS Q&A ‘OUR GOAL IS TO GIVE OUR CLIENTS HOME ADVANTAGE THROUGH LOCAL EXPERTISE’ In a bid to broaden its presence across Southeast Asia, Singapore Big Four firm Drew & Napier has expanded its regional law network, Drew Network Asia (DNA), to include Thailand’s biggest firm, Tilleke & Gibbins. Sushil Nair, Drew & Napier’s deputy chief executive officer, outlines the strategic focus of DNA and how expansive jurisdictional coverage can translate to enhanced client service. ALB: DNA was established in 2020. Can you talk about how the experience has been so far? How does having a network across Southeast Asian countries align with the overall goals of Drew & Napier? Sushil Nair: Drew Network Asia (DNA) was established with a view to putting together an alliance of Southeast Asian law firms who are existing leaders in their respective jurisdictions. Initially, the firms that comprised the alliance were Drew & Napier of Singapore, Makarim & Taira S. of Indonesia, and Shearn Delamore & Co. of Malaysia in 2020. In 2021, we added a Philippines firm, Martinez Vergara & Gonzalez Sociedad and last month, we added a fifth firm, Tilleke & Gibbins, expanding our regional footprint to 824 fee earners across nine jurisdictions within ASEAN, giving us the capability to service clients throughout the region. Drew & Napier, as a firm, has significant experience in dealing with and managing cross-border transactions and disputes. We were being constantly engaged to work on cross-border transactions, often playing the role of the lead legal advisor, coordinating with other firms across the region and internationally. It made sense for us to develop an alliance, but we were acutely conscious of the need to ensure that the parties we worked with would constitute some of the best legal minds in the region. The DNA member firms all meet this requirement, and we now have the ability to provide seamless access to top legal advisors from the region’s leading firms for our cross-border clients. ALB: What specific strategic focus does DNA bring to the table in terms of legal services within Southeast Asia? How does this strategic focus differentiate DNA from other legal networks or individual law firms operating in the region? Nair: A number of Singapore firms, Drew & Napier included, have seen that looking outward and being in a position to assist clients across borders is essential to the development of legal services within Southeast Asia. ASEAN is an economically linked region, and Singapore is known as a global financial and commercial hub. We recognise the increasing need to service clients across borders, and DNA ensures that the parties we work with constitute some of the best legal minds in the region through our network of “blue-chip” premium law firms. Our locally qualified lawyers across different jurisdictions have significant on-the-ground experience and insights into the ever-evolving business and legal landscape. ALB: With the addition of Tilleke & Gibbins, what do you anticipate will be the most immediate and long-term benefits for both Drew Network Asia and its clients? Nair: Tilleke & Gibbins is the largest independent law firm in Thailand and a top-ranked firm in ASEAN, with more than 230 lawyers and consultants practicing in seven offices across the region. With the addition of Tilleke & Gibbins, DNA and its clients gain access to market-leading legal practitioners providing a full range of legal services across Cambodia, Laos, Myanmar, Thailand and Vietnam, expanding DNA’s coverage to a total of nine jurisdictions within ASEAN – the nine largest by population as well as GDP. This strategic collaboration will support global and regional enterprises as they look to take advantage of the many opportunities across the Southeast Asian region both in the short- and long-term. ALB: What does it take to join the DNA network, and what does Tilleke & Gibbins bring to the table? Nair: DNA looks for partnerships that last. In our selection process, the potential candidate must be a blue-chip firm that matches the network’s standard for excellence in client service and strengthens its mission to provide top-notch legal services across ASEAN. Tilleke & Gibbins has a rich history in Southeast Asia, from its founding in Bangkok in 1890 to its rapid regional growth over the past decade, mirroring the development of the region. The strength of the firm’s legal expertise and client service is regularly lauded by top legal publications, earning the firm a total of 18 Firm of the Year awards in 2023 alone – including three awards from ALB covering all of Southeast Asia. The firm’s reputation and capabilities in ASEAN are perfectly aligned with the other members of the DNA network and will be a vital asset to companies looking to expand across Southeast Asia. SUSHIL NAIR
12 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM International law firms operating in China have been mired in a crisis of confidence following a series of grim news. In the latest signal of market dismay, Magic Circle firm Linklaters and Clifford Chance trimmed associate headcounts in China and Hong Kong as a result of the weaker economic environment. At least 20 junior attorneys were cut at Linklaters, which branded the move as “modest reduction” in response to the “prolonged downturn in the China market”. Clifford Chance was said to have let go of around four associates, citing their failure to meet billing requirements. The developments came just weeks after U.S. capital markets powerhouse Latham & Watkins shrunk its footprint in mainland China, leaving the only lights on at its Beijing office. Latham justified the closing of its Shanghai outpost as a result of the expiry of its lease. The decision also came when Beijing unleashed sprawling anti-espionage and stringent data protection regulations, seemingly compounding the deepening economic woes. Peter Zeughauser, a legal analyst at Zeughauser Group, notes that Latham has had a “grow close or no grow” approach to Shanghai since launching an office there around two decades ago, and will continue to be driven by its own calculus in China. “Their incredibly strong financial performance and their similarly strong international brand indicate that they have consistently, across their platform, been interested in only the most important client work; work that merits their talent pool and for which they can command their fees. With presently diminished foreign direct investment in China and outbound China work, it’s easy to make a case for consolidating,” says Zeughauser. A senior foreign lawyer based in Japan working in a large U.S. firm, who asked not to be named because of the sensitivity of the information, tells ALB that one of the reckonings that international firms increasingly have is that the vast Chinese market is not as big as it had seemed. “There has been a misunderstanding on the parts of foreign firms entering China over the availability of the pie that is the Chinese legal market,” this Japanbased senior lawyer says. “The substantive and lucrative legal work comes from state-owned businesses. Most of China’s largest companies and the big money thereof are tied to the government. And that portion of work only goes to firms with direct government contact.” They cite King, Wood & Mallesons as the most notable example of foreign firms thriving in both longevity and viability in China “not because they played around the system, but that they have become the system.” “Western law firms need to think very carefully when they enter China and deploy their investment. Unfortunately, most clients have not factored in the corporate governance situation in China regarding the selection of counsel,” they say. In August, Dentons exited China after splitting with its China arm, Beijing-based Dacheng Law Offices. Dentons, the world’s biggest law firm by headcounts, attributed its retreat to the toughening regulatory environment. But the unnamed lawyer, who used to work in a U.S. firm in Shanghai, believes it’s a fundamentally a business decision. “For Dentons, it’s a long-term strategic blunder to tie up with Dacheng in China as they keep on throwing money on that decision, and that money keeps on burning in light of the Sino-U.S. decoupling process and things they are seeing politically. Now they have an excuse to pull out at a time they are increasingly losing the ability to justify a holdout.” Zeughauser highlights a bigger, common problem facing international firms in China at the moment, and that is the rise in sophistication of homegrown Chinese firms. “The quality of the top Chinese firms has increased dramatically over the past two decades to the point that they can now out-compete the top international firms for work and talent in China,” he says. “The lack of attorney-client privilege and other incursions on the western legal practice regulatory norms continue to erode the effectiveness of and the interest in maintaining and growing a mainland practice for the vast majority of international firms.” In Zeughauser’s view, the China market isn’t for everyone, so it’s quintessential for firms to chart their own China strategy, “for Chinese law firms that need best friend relationships, for Chinese clients that need lawyers in foreign jurisdictions, and for foreign clients desirous of penetrating and growing in the Chinese market,” he notes. “The leading Chinese firms are spending time understanding and developing strategies for serving homegrown and foreign clients. Foreign law firms should be doing the same with respect to China. There is a lot of synergy to be had,” he adds. FOREIGN LAW FIRMS RECALIBRATE CHINA STRATEGY AS ENVIRONMENT TOUGHENS BRI EFS Image: lightrain/Shutterstock.com
13 ASIAN LEGAL BUSINESS – OCTOBER 2023 WWW.LEGALBUSINESSONLINE.COM BROUGHT TO YOU BY CIETAC Innovations and Revisions are Made in the New CIETAC Arbitration Rules to Respond to International Trends and Market Developments Arbitration, an internationally recognized dispute resolution method, plays an important role in protecting the legitimate rights and interests of parties, optimizing business environments, and promoting international economic and trade activities. The China International Economic and Trade Arbitration Commission (“CIETAC”) fully respects the fundamental principles of arbitration, independently, fairly and efficiently examines different kinds of arbitration cases based on law, promoting the sound development of arbitration. On September 5, 2023, CIETAC issued a new version of Arbitration Rules (hereinafter “the new Arbitration Rules”) that takes effect from January 1, 2024. The new Arbitration Rules are introduced to meet the development needs of arbitration in the new era. Benchmarked against the high quality international arbitration systems, the new Arbitration Rules summarize the experience of arbitration practices and introduce several innovations and revisions to the current Arbitration Rules. A Look at the Background of the Revision “By revising the Arbitration Rules, CIETAC is adapting to the development of arbitration under the new situation and meeting the needs of domestic and foreign parties for dispute resolution, which can enhance the attractiveness, competitiveness and influence of CIETAC”, Wang Chengjie, Vice Chairman and Secretary General of CIETAC, tells ALB. CIETAC spent two years drafting the new Arbitration Rules by learning from past practices. Closely keeping pace with international arbitration practice, CIETAC revised its existing Arbitration Rules after in-depth research and extensive consultation in order to provide modernized and internationalized arbitration services for commercial subjects. The current Arbitration Rules were implemented on January 1, 2015. In the revised new Arbitration Rules, the number of articles increase from the 84 to 88 and incorporate more than 30 revisions. “The revised version attaches importance to five aspects. First, it highly respects the autonomy of the parties. Second, it grants the arbitral tribunal more rights in procedural matters. Third, it prevents the abuse of arbitration procedural rights by the parties. Fourth, it improves the fairness and legitimacy of arbitration procedures. And last, it enhances the flexibility, efficiency and transparency of arbitration procedures”, Wang says. In addition to improving and adjusting the existing Arbitration Rules, the new Arbitration Rules also incorporate several procedural innovations for the first time. These are also highlights of the revised Arbitration Rules. Highlight I: Informatization Wang notes that the new Arbitration Rules prompt the use of digitalization and artificial intelligence (“AI”) in arbitration procedures. In April 2020, CIETAC issued the Guidelines on Proceeding with Arbitration Actively and Properly during the COVID-19 Pandemic (Trial). It guided the online case filing, electronic delivery of documents, and online hearing, among other things, during COVID-19, and constructed the provisional rules and guidelines for online arbitration. The practice of online arbitration during COVID-19 provided experience for the technical construction and mechanism for online arbitration, while arbitration participants enjoyed the advantages of online arbitration, which gave rise to the normalization of online arbitration post-COVID-19. The new Arbitration Rules strive to make arbitration procedures smarter and more digitalized by regulating different aspects of online arbitration. COVID-19 pushed forward the development of digital and intelligent arbitration services. Information technology is being widely used in serving documents and hearings. “These practices have provided experience for the development of digitalization and intelligence of arbitration in the post-COVID-19 era. Meanwhile, it showed us faster, more accurate and more economic solutions, which are in line with For the first time, the new Arbitration Rules clarify the effect of pre-arbitral procedures on the filing of arbitration applications. Wang says, “after examining the judicial practice at home and abroad, the new Arbitration Rules make it clear that the pre-arbitral procedures agreed upon in the arbitration agreements do not affect the claimant’s filing of the request for arbitration. This addresses and responds to the existing issues in practice over a long period of time, which is conducive to the timely protection of the legitimate rights and interests of the parties.” Highlight III: Standardization The new Arbitration Rules specify that CIETAC not only can forward the applications for conservatory and interim measures of the parties to the relevant cases accepted by CIETAC to the People’s Courts of mainland China, but also can forward such applications to overseas courts. Considering that the foreign-related cases accepted by CIETAC involve parties from over a hundred countries and regions, arbitration institutions should provide convenient procedural services and structure the rules to enable the parties to apply for overseas conservatory and interim measures so that the parties can proceed with conservatory and interim measures in accordance with the provisions of the relevant foreign laws. So CIETAC amended the provisions on the conservatory and interim measures to make it clear that, if the parties apply for conservatory and interim measures, CIETAC shall transfer the parties’ application to the court with jurisdiction specified by the parties. “In order to properly handle the parties’ applications for conservatory and interim measures and to ensure the People’s Courts to timely make rulings on conservatory and interim measures in accordance with the law, the new Arbitration Rules add the provision to clarify that CIETAC may, upon the request of the parties, forward their applications for conservatory and interim measures to the above courts before the issuance of the notice of arbitration”, says Wang. In addition, the new Arbitration Rules clarify the application of the Guidelines on Evidence of CIETAC in arbitration proceedings. CIETAC’s Guidelines on Evidence properly combines the principles of evidence of civil law and common law systems, which helps the arbitral tribunals and the parties to find and prove the facts of the case by applying the rules of evidence in a more effective and standardized manner. “This rule revision stipulates that the arbitral tribunal may decide to apply or partially apply the Guidelines on Evidence on its own. The arbitral tribunal may determine the application of the rules of evidence based on factors such as whether the disputes have a foreign-related element, the applicable law chosen by the parties in the arbitration agreement, and the seat of arbitration”, says Wang. Highlight IV: Transparency In recent years, third-party funding has been increasingly used and developed in international arbitration. While third-party funding helps the parties to legally defend their rights, it also impacts the impartiality and independence of arbitrators. Therefore, the new Arbitration Rules provides that the parties shall timely disclose the information of the third-party funding to the arbitral tribunal, which will contribute to enhancing the transparency and impartiality of the arbitration procedures. The new Arbitration Rules also lower the fees for domestic cases by stopping to charge for arbitration fees for the portion of disputed amounts exceeding RMB3 billion yuan and thus capping the arbitration fees. Meanwhile, the hourly remuneration of arbitrators is clarified and standard hourly rates of arbitrators are disclosed on CIETAC’s official website to improve transparency. “Overall, the new Arbitration Rules bring in institutional innovation while improving the procedures. The flexibility, fairness, efficiency, and transparency of the arbitration procedures are enhanced, providing a high level of institutional safeguard for the high-quality development of CIETAC arbitration, as well as offering a more internationalized dispute resolution service for Chinese and foreign parties”, Wang concludes. the requirements of arbitration in terms of efficiency, accessibility and low cost. It also conforms to the trend of being green, low carbon and environment-friendly”, says Wang. “The new version summarizes the practices and good impacts of the application of information technology in arbitration proceedings. It stipulates that electronic delivery of arbitration documents is preferred, and the arbitral tribunal has the right to decide on online hearings. In addition, it clarifies that the electronic signature of an arbitrator bears the same effect of a handwritten signature, and that an award can be delivered electronically. These respond to the requirements of the digital era.” Highlight II: Efficiency The new Arbitration Rules improves the system of including multiple contracts in one arbitration case. First, the scope of the rules on multiple contracts in one arbitration are expanded. The new Arbitration Rules allow disputes under multiple related contracts to be filed in a single arbitration. Second, in addition to invoking rules on multiple contracts at the casefiling stage, the new Arbitration Rules also allow the parties to add additional contracts during the arbitration proceedings. Meanwhile, the new Arbitration Rules also make it clear that the decision on jurisdiction can be made by the arbitral tribunal in accordance with the general authorization of the Arbitration Rules after the arbitral tribunal is formed. According to the Arbitration Law of China, when parties have doubt on the validity of an agreement for arbitration, a request can be made to the arbitration commission for a decision, whereas in international arbitration, a more widely accepted practice is “compétence de la compétence”, i.e. an arbitral tribunal has power to decide on questions concerning its own jurisdiction. “This amendment is in line with the current Arbitration Law, while it clarifies the right of the arbitral tribunal to make decisions on jurisdiction, which helps to respond to jurisdictional challenges in a timely and efficient manner. It simplifies procedural management and improves the efficiency”, says Wang. “The new Arbitration Rules incorporate the early dismissal procedure, and improves flexibility and efficiency”, Wang adds. To respond to the concern of the efficiency of arbitration by arbitration users, and to consolidate the advantages of efficiency of arbitration vis-à-vis litigation, the procedure of early dismissal is introduced in the arbitration practice. The new Arbitration Rules add an early dismissal procedure, stipulating that the parties may apply for early dismissal of arbitration claims or counterclaims in whole or in part on the grounds that the claims or counterclaims are manifestly lacking in legal basis or beyond the jurisdiction of the arbitral tribunal before the submission of the statement of defense or the statement of defense to the counterclaims. Wang Chengjie Vice Chairman & Secretary General of CIETAC E: wangchengjie@cietac.org CIETAC W: www.cietac.org
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