Trump endorses criminal justice reform legislation

US President Donald Trump on Wednesday announced his support for the FIRST STEP Act, which aims at reforming the prison system to better rehabilitate individuals upon re-entering society.

The Act “uses a targeted approach toward a specific population of Federal prisoners who will eventually be released,” and aims to “promote prisoner participation in vocational training, educational coursework, or faith-based programs, and in turn help them successfully reenter society.” The program would focus on job skills, drug treatment, and education.

FIRST STEP has been deemed “bipartisan” and showed overwhelming support in Congress with a 360–59 in May. Trump delivered remarks about the effect this bipartisan effort will have:

[W]e’re all better off when former inmates can receive and reenter society as law-abiding, productive citizens. And thanks to our booming economy, they now have a chance at more opportunities than they’ve ever had before. … Our pledge to hire American includes those leaving prison and looking for a very fresh start—new job, new life.

Trump also remarked on the wide-rage of support from law enforcement at every level, showing high expectations for the Act’s influence on inmate re-entry.

Pillsbury Adds China-Focused Litigation Partner in New York

As bilateral hostilities between the world’s two largest economies persists, Pillsbury Winthrop Shaw Pittman has recruited a litigation partner in New York who focuses on China-related disputes.

Geoffrey Sant joins from Dorsey & Whitney, where he was a New York partner in the firm’s trial department. Sant mostly helps Chinese companies and executives defend securities class actions and other commercial and employment claims before U.S. courts.

Sant will be a partner in Pillsbury’s New York office and spend “a substantial amount of time in Asia.” Fluent in Mandarin Chinese, he will primarily work out of the firm’s Beijing office and also spend time in Shanghai, Hong Kong and Taipei.

He joined Dorsey & Whitney in 2012 after spending four years with Morrison & Foerster; he became a partner at Dorsey in 2016.

The hire comes at a time when the United States and China are in an escalating battle over trade issues. Multiple rounds of high-level negotiations have taken place, but little progress has been made. Meanwhile, the Trump administration is tightening scrutiny of Chinese companies and individuals on the cybersecurity and intellectual property fronts.

Last week, the Department of Justice indicted a group of Chinese government officials for alleged trade secret theft. Also last week, the Department of Commerce banned all exports to Chinese semiconductor maker Fujian Jinhua Integrated Circuit Co. Ltd. amid intellectual property theft allegations.

Deborah Baum, Pillsbury’s Washington, D.C.-based litigation practice leader, said Sant’s ability to collaborate with Chinese clients and understand complex Chinese laws and documents will help serve the firm’s clients well.

In August, Pillsbury opened an intellectual property-focused Taipei office with trial lawyer Christopher Kao and patent specialist David Tsai. In 2016, it launched a Hong Kong office, led by former Clyde & Co global aviation finance head Paul Jebely, primarily focusing on commercial aircraft and private jets financing work. Sant said the financial services and aviation sectors—focuses for Pillsbury in Asia—are also rapidly expanding aspects of his practice.

The firm’s Beijing office, led by former Paul Hastings partner David Livdahl, was opened in 2014. The Shanghai office, led by IP litigation partner Jack Ko, was launched in 2006.

Macau firm plots regional Greater Bay Area coverage

MdME Lawyers has made history as the first Macau law firm established in Hong Kong following approval from Hong Kong’s Law Society to register as a foreign firm and practice Macau law in Hong Kong.

MdME, which made the announcement on the same day the Hong Kong-Zhuhai-Macau Bridge was opened to the public, bills itself as bridging the gap between the two legal markets by focusing on opportunities that span both markets.

Founded in 2006, with over 25 fee-earners, the full-service firm has represented large corporations operating in Macau across sectors such as finance, gaming, real estate, energy, construction, infrastructure, pharma and telecom.

Gonçalo Mendes da Maia, founding and Managing Partner of MdME said the new Hong Kong office would help the firm achieve its goal to become “a truly regional firm in the Greater Bay Area”.

HMRC finds a new legal head from Defra

HM Revenue and Customs has appointed a new general counsel, taking on the legal director of the Department for Environment, Food and Rural Affairs (Defra).

Alan Evans will take on the top legal role at HMRC on 1 January 2019, advising on all aspects of tax law and leading its litigation team. He will also be a member of the tax agency’s executive committee.

Evans has built up a legal career spanning 30 years, including his former role as legal director at Defra, as well as stints as legal adviser to the Cabinet Officer and the European Commission.

Evans’ appointment was formally ratified by the Prime Minister Theresa May, following an “extensive” internal and external search.

Evans succeeds Gill Aitken, who stepped down in June to become registrar at the University of Oxford. Mid-June, David Bunting, a former legal director at HMRC and part of the UK Government-wide Border Delivery Group. filled the role on an interim basis while HMRC carried out an open recruitment process for a permanent replacement.

Aitken joined HMRC in 2014 to lead the Solicitor’s Office and legal services, advising HMRC and HM Treasury on all aspects of tax law and leading a large litigation practice safeguarding tax revenues.

HMRC’s chief executive Jon Thompson said he was “delighted” to welcome Evans “at a critical time for the department”. It is currently carrying out wide-ranging preparations for Brexit, including work to ensure it is ready handle the extra customs demands that will be needed in the event of a no-deal departure from the EU.

Latham grabs mandate for Wagamama in £600m sale

Slaughter and May, Latham & Watkins and Linklaters have been drafted in to advise on The Restaurant Group’s planned acquisition of pan-Asian food chain Wagamama’s.

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Int’l law firms clash with HK Law Society

Partners from 15 international law firms in Hong Kong have drafted a letter expressing their concerns over proposed rules from the Law Society that would curtail employment opportunities for foreign lawyers in Hong Kong, and tighten up so-called “loopholes” in the city’s legal market.

The South China Morning Post first broke the story, revealing that the Law Society had sent a letter to consulting firms in early October proposing fresh restrictions on lawyers who qualified outside Hong Kong. Under the new guidelines, they would only be able to offer legal advice on cases that involved the jurisdictions they were registered in. Hong Kong law firms would also have to employ two local lawyers for one foreign lawyer, up from a ratio of one to one.

Hong Kong-based partners from international law firms, including Linklaters, Davis Polk & Wardwell, Latham & Watkins, Paul Hastings, Kirkland & Ellis, and Skadden, Arps, Slate, Meagher & Flom, were among those who signed the joint letter to Melissa Kaye Pang, president of the Law Society, voicing their concerns about the changes. While foreign lawyers are currently prohibited from directly handling Hong Kong cases, law firms based in the special administrative region reportedly sidestep this by employing such lawyers in cases that include foreign elements, and having a local lawyer sign the legal recommendation. This may allow them to avoid being named a “practicing” lawyer, as they are technically only serving in an advisory role.

One of the issues raised following the announcement by the Law Society has been the question of what defines foreign or local lawyers, as one source told SCMP that many “foreign” lawyers in Hong Kong are citizens who have studied law overseas.  Since the story broke, the Law Society has extended the consultation period from Nov. 1 to Dec. 31.

Japan

William Fry takes on new pensions head from Eversheds

William Fry has appointed a new head of pensions, taking partner Ian Devlin from Eversheds Sutherland.

Ian Devlin

Devlin had been at the Dublin office of Eversheds for 18 years, having trained at the firm at the turn of the Millennium.

At Eversheds, he advised employers, pension scheme trustees and pension providers on pension issues. He was formerly a chairman of the Association of Pension Lawyers in Ireland and is currently a member of the DC sub-committee of the Irish Association of Pension Funds.

Devlin replaces William Fry’s former head of pensions, Liam Connellan who has since become head of pensions at ByrneWallace.

Spotlight on Dublin

Brexit has created fresh business opportunities for Irish law firms. In April 2015, William Fry moved to what is dubbed Dublin’s “Silicon Docks”, a formerly derelict area within the Grand Canal Dock. During the green pastures of Ireland’s economic uptick, the area has ripened from a flood of tech employees, including the European headquarters of Google, Facebook and Airbnb.

Barclays, Bank of America, Citigroup and JPMorgan are among the financial institutions that also plan to establish or expand their Irish operations.

Last year, it was announced that Trinity College Dublin is planning to build a technology-focused campus at at the Grand Canal Dock as part of €1bn plans to develop the area as an “innovation district”. The initiative aims to make Dublin ranked among the top 20 most innovative cities in the world by 2030.

One of the key events that rocked Ireland’s legal market in 2017 was the opening of several new offices by international law firms in Ireland, and in particular Dublin. With Brexit looming, firms in the UK have directed their gaze towards Ireland.

The first of the pack to set up shop was Dechert, which launched its Dublin office in July 2010 with the hire of William Fry Declan O’Sullivan.

In May this year, DLA Piper finally confirmed its launch in Dublin, taking on William Fry partner David Carthy. Its launch came hot on the heels of Simmons & Simmons, which officially opened its office the same month.

In June 2017, Pinsent Masons became the first UK firm to announce its plan to launch an office in Dublin since the UK’s Brexit vote, taking on a three partner team from Walkers. Lewis Silkin and US firm Covington & Burling followed shortly after.

Eversheds’ Belfast operation is currently undergoing a period of growth. In August, it released plans to double its headcount to 30 by 2020, with a focus on litigation, real estate, employment and banking. Having originally set up as a satellite office 2015 with just six employees, it now has 15 employees including three partners.

The firm’s Dublin office currently employs 275 people including 34 partners.

It entered the Irish market back in 2005 through an alliance with legacy Irish firm O’Donnell Sweeney. In 2011, the firm, which was known as Eversheds O’Donnell Sweeney, rebranded and dropped O’Donnell Sweeney from its name.

DHH launches a presence in Seattle (双语)

The Opening Ceremony of Beijing DHH Law Firm Seattle Office was held at the Safeco Plaza Building on 4th Avenue in downtown Seattle, which witnessed the establishment of the 47th office of Deheng Law Group as well as the 9th overseas office.

On the opening ceremony, the Seattle office of Beijing DHH Law Firm and DHH Washington D.C. Law Office held the seminar on the recognition and enforcement of U.S. judgments in China, and Chinese judgments in the U.S., as well as on the parallel litigation.

Beijing DHH Law Firm and DHH Washington D.C. Office co-launched the Seattle Initiative calling for both sides to make more efforts to stop any malicious flight of debts and transfer to abroad.

Litigation Funding in Asia – Where are we now?

Last year saw a swathe of reforms and proposed reforms in Asia in relation to litigation and arbitration funding.  In January 2017, Singapore’s parliament passed the Civil Law Amendment Act and the Civil Law (Third Party Funding) Regulations 2017.  Hot on Singapore’s heels, in June 2017, Hong Kong approved the Arbitration and Mediation Legislation (Third Party Funding) Amendment Bill 2017 and supplemented the Arbitration and Mediation Ordinance.  And earlier this year, presumably in an attempt to keep pace with Singapore and Hong Kong, Malaysia announced proposed amendments to its Arbitration Act 2005 to allow third-party funding of arbitration.

In typically proactive fashion, earlier this year the Singapore Institute of Arbitrators carried out a survey of professional litigation funders operating in Singapore, including Woodsford, to ascertain how matters had developed since the change in law. The general consensus amongst funders, and Woodsford’s own experience, is that the number of funding opportunities in Asia is gradually increasing and that, whilst some arbitrations were being funded, many had failed to meet the investment criteria applied by professional litigation funders.  The most significant issue with the opportunities considered by funders to date appears to be ‘recoverability’, as funders struggle to get comfortable with the prospects of enforcement against parties with assets in jurisdictions such as mainland China, India and Indonesia.  However, as parties arbitrating in Asia become more accustomed to the availability of third-party funding and the enforcement prospects in Asian jurisdictions improve, it is likely that significantly more cases will be backed by third-party funders.

Funding in Singapore isn’t exclusively available for arbitration.  Earlier this month, Singapore lawmakers passed the Insolvency, Restructuring and Dissolution Act, which enshrines in statute a liquidator’s or judicial manager’s power to assign the proceeds of an insolvent estate’s claim to a third party.  This provision is said to have been introduced expressly to facilitate third-party funding of such claims.

This legislative change follows the Singapore Court’s decisions in Re Vanguard in 2015, in which the Court permitted funding by former shareholders in an action arising out of an insolvency, and last month in Trikomsel, in which the Court permitted the funding by a third party of investigations and potential claims in the context of a major corporate collapse which cost Singaporean retail investors hundreds of millions of dollars.

Collectively, these changes cement the availability of third party funding for insolvency claims in Singapore and, given the current momentum towards accepting funding as an integral part of the legal landscape in Singapore, it can only be a matter of time before Singapore decides to allow it in respect of all of its court litigation and arbitration.  Perhaps the next step will be to allow it in claims before Singapore’s forward-thinking International Commercial Court.

In Hong Kong, progress has unfortunately not been as impressive.  Although Hong Kong’s lawmakers first commenced the process of allowing third party funding for arbitration before Singapore, in 2013, Hong Kong has long since been left in Singapore’s wake. Although Hong Kong formally passed legislation permitting third-party funding for arbitration in June last year, over a year later the legislation has still not been formally implemented.  As matters stand, therefore, funding of arbitration in Hong Kong remains an offence with civil and even criminal penalties.

Unlike Singapore, the Hong Kong judiciary has on occasion shown itself reluctant to permit third party funding even in circumstances where a case appears to fall within one of the permitted exceptions to the prohibition outlined in the case of Seeberger v Unruh.  In the recent case of Raafat Imam v Life, the claimant sought a declaration from the Hong Kong Court that the funding arrangement he proposed to enter into did not constitute maintenance or champerty or, alternatively, that his claim fell within the access to justice exception identified by the Court in Unruh.  The Hong Kong Court of First Instance denied the application and held that the claimant’s application was effectively for a “declaration of non-criminality to fend off potential or possible criminal prosecution” and that such a declaration could only be made in exceptional circumstances.  The Court further held that such exceptional circumstances are limited to situations where the integrity of criminal proceedings already instituted is questionable or critical life or death situations, and that neither arose in Raafat’s case.

This decision is disappointing and appears to close the door on the ‘access to justice’ exception, which was the product of careful deliberation of competing public policies by Hong Kong’s highest civil Court in Unruh.  Given that there will always be the ‘possibility’ of criminal prosecution as long as champerty and maintenance remains a criminal offence in Hong Kong, and that litigants requiring funding to achieve access to justice are rarely (if ever) likely to fulfil the exceptional circumstances requirement, it is difficult, on the basis of the decision in Raafat, to see how any party will ever be able to avail itself of the ‘access to justice’ exception.  Indeed, the Raafat decision appears to undermine the decision in Unruh and render the ‘access to justice exception’ somewhat nugatory.  Is the ‘exceptional circumstances’ test really what the Court of Final Appeal intended when it devised the access to Justice exception in Unruh?  What if a litigant lacks the financial means to bring a meritorious claim?  Does he or she fall within the access to justice exception or does his or her perfectly good claim founder because he or she is not facing a questionable criminal prosecution or in a life or death situation?

Notwithstanding the position in Hong Kong, the global trend towards the erosion of the archaic doctrines of champerty and maintenance looks set to continue as other Asian jurisdictions, like Malaysia, sit up and take notice of developments in Singapore and Hong Kong, presumably conscious of the need to remain a competitive arbitral venue of choice.

Although the introduction and take-up of funding in Asia thus far has to some degree at least been a ‘slow burn’, the signs for the future are promising.  One by one, the common law jurisdictions in Asia are ridding themselves of the shackles of champerty and maintenance and beginning to appreciate the very significant benefits that third-party funding can bring, both in terms of enabling access to justice and promoting risk- and cost-efficient dispute resolution.

For more information please visit woodsfordlitigationfunding.com or follow on Twitter: @WoodsfordLF or LinkedIn

How Papua New Guinea’s legal market found its feet

Despite its abundance of oil, minerals and renewable resources, Papua New Guinea is considered one of the more challenging frontier markets to invest and operate in due to its climate of social and political upheaval. But this has not scared off international interest, which has only grown in recent years, including within the legal sector. International firms are beginning to set up footholds in the island nation’s capital, and they see a bright future ahead.  

As the host the 2018 APEC Summit this month, all eyes will be on Papua New Guinea, but that is not the only reason the island nation has gained international attention of late. Australia, China, and the U.S. have locked horns over PNG’s sought-after telecommunication infrastructure contract, and mining and energy projects continue to beckon interest and financial investment from around the globe. The island country, located in the Southwestern Pacific Ocean, has also cautiously played the political game, forging diplomatic relations around the region, while developing its debt markets and setting the scene for future growth. The market’s maturing also means more work for the increasingly visible legal sector. In the past few years, international law firms started to proliferate in the capital Port Moresby (population 400,000). In 2016, Norton Rose Fulbright opened an office there and the following year, Australia’s Corrs Chambers Westgarth followed suit. In September this year, Ashurst moved to new premises in Port Moresby. And Australia’s Allens, which is an independent partnership working in alliance with Linklaters, remains a key player.

TIGHTKNIT COMMUNITY Sarah Kuman, a partner at Allens’ PNG office, says operating in a small market with a tightknit community has its advantages – especially for those who are personally invested in the country. Running across clients at corporate breakfasts, shops and “in the departure lounge at the airport” is a regular occurrence in PNG. “On-the-ground knowledge of government processes can be incredibly useful for companies who perhaps, might be entering the market for the first time from very different economies,” she explains. But working in a smaller market can be double-edged sword. “The first, most obvious challenge, in dealing with international clients is that many government processes are not fully automated (including payment methods) and sometimes, foreign clients can find this difficult to comprehend that for example, we still keep a manual land titles register,” Kuman says, adding that this can cause delays and explaining delays and searchability can be “difficult to explain to clients who may be used to searching online or at least using a digitised register.”

‘LUMPY’ WORK Richard Flynn, head of Ashurst’s Port Moresby office, says that the PNG commercial market is growing rapidly from a small base. “Work can be ‘lumpy,’ where we are sometimes running very large matters that stretch our local resources,” he says. “We are investing a lot of time in training our local legal resource of lawyers from the University of Papua New Guinea and the Legal Training Institute. We have recently moved office and have invested heavily in our onshore IT capability because cloud applications are of limited use at present.” Understanding nuances and investing in PNG highlights the importance of establishing a physical presence in PNG says Vaughan Mills, who heads Corrs’ Port Moresby office. Apart from having a visible presence at a time where PNG is attracting global interest in its current major oil, gas and mining projects, an office in the country sends a message the firm is committed to the market and to PNG itself, says Mills. He adds: “It enhances our credibility and shows we are investing in the country and not just simply profit taking.” Flynn agrees. “PNG does not have great communications, so it is critical to be on the ground and able to call locally or visit other parties or regulatory officials,” he says. “On the social front, it is a challenging environment for our people in Port Moresby which has transport, accommodation and crime issues like any other developing city. Though our local presence and investment we can manage these issues in a responsible way and develop our Papua New Guinea people. This is obviously the responsible and sustainable way ahead.”