KPMG adds to Asia legal presence

The KPMG Global Legal Services network is pleased to announce that it has expanded its legal capabilities in Asia Pacific by establishing a new law firm in Hong Kong, known as SF Lawyers.

SF Lawyers is the newest member of the KPMG’s Global Legal Services network. It will initially commence operations with four senior hires and two senior associates joining either now or over the next few months, and with plans for around 20 lawyers in the first year. The four senior hires are Shirley Fu, Rodney Chen, Leo Tian and David Murray, and they will be supported by Alex Ma and Sherman Wong as senior associates. Brief details of the senior hire profiles are included below. An additional launch of legal services in Shanghai is expected in 2019.

Honson To, Chairman of KPMG Asia Pacific and China, says: “We warmly welcome SF Lawyers as the newest member of the KPMG Global Legal Services network, which has grown by 30 percent in 2018 alone, and has significant growth ambitions just beginning to be realised across the Asia Pacific region.”

“With increased global connectivity and the digitalisation of many business functions, SF Lawyers will be uniquely positioned to deliver on the needs of both domestic clients (including going outbound) and multinational clients entering or transacting in the Chinese market. Working in conjunction with KPMG, SF Lawyers will provide clients with legal services in key areas such as M&A and deals, and infrastructure projects. It will also offer technology enabled legal services, while leveraging significant investments in robotics, artificial intelligence and other technologies developed globally and in China through the KPMG Digital Ignition Centre.”

“The firm will also help provide clients with global legal solutions, leveraging our legal services practices across 76 jurisdictions, together with KPMG’s presence in 154 countries around the world”, To adds.

SF Lawyers will be operating in association with KPMG Law in Australia, which is led by Stuart Fuller, the former Global Managing Partner of King & Wood Mallesons.  Fuller has recently moved to KPMG where he occupies the role of Asia Pacific Regional Leader for Legal Services.

Fuller says: “We are excited about the association between KPMG Law in Australia and SF Lawyers in Hong Kong, which is reflective of the increasingly important trade and business flows between the two jurisdictions. We are not trying to be a traditional law firm. Our approach is different, with a focus on offering our clients integrated global legal advice and solutions, where we are able to work seamlessly with existing KPMG clients who are looking for local and multijurisdictional counsel. As someone who has lived and worked in Hong Kong for 6 years, I am proud to see SF Lawyers as the newest entry to the network in Asia.”

Brexit: PM under fire over new Brexit plan

Theresa May will make the case for her new Brexit plan in Parliament later, amid signs that Conservative opposition to her leadership is hardening.

The prime minister will outline changes to the Withdrawal Agreement Bill – including a promise to give MPs a vote on holding another referendum.

But shadow Brexit secretary Sir Keir Starmer said the offer was “too weak”.

Some senior Tories will today ask party bosses for a rule change to allow a no-confidence vote in her leadership.

Environment Secretary Michael Gove defended the PM’s plan, urging MPs to “take a little bit of time and step back” to “reflect” on the detail of the bill – due to be published later today.

Fellow cabinet minister and prominent Brexiteer Andrea Leadsom said she was “looking very carefully at the legislation” and “making sure that it delivers Brexit”.

MPs have rejected the withdrawal agreement negotiated with the EU three times, and attempts to find a formal compromise with Labour have failed.

On Tuesday, the prime minister asked MPs to take “one last chance” to deliver a negotiated exit – or risk Brexit not happening at all.

But several Tory MPs have criticised her plan. Among them, Nigel Evans will today urge party bosses on the 1922 committee to change party rules to allow for an immediate vote of no-confidence in Mrs May.

Because the PM survived such a vote in December, the current rules say she cannot face another for 12 months.

The committee has said ‘no’ to such a change before.

But the Conservative Home website has urged people not to vote for the party in Thursday’s European elections if Mrs May is still in post “by the end of today”.

HONG KONG HK

Hong Kong Dispute Resolution: Plans for 2019 and Beyond?

Here, we take a look at market trends and emerging best practices in the dispute resolution space to offer a guide as to what could be top of mind for practitioners in 2019 and beyond

Arbitration

What’s on the horizon? We’ve seen key changes in the evolution of the arbitration arena in Hong Kong, with a host of reforms undertaken to boost efficiency, create clarity, and to align the city’s mechanisms with those of England & Wales, Australia and Singapore. Most notably, the issuance of the Code of Practice for Third Party Funding came into effect on 1 February. This expressly allows for third party funding for arbitration and related matters and this key development irrefutably abolishes the doctrines of champerty and maintenance. What we will expect to see this year is greater clarity and transparency in the Hong Kong panorama as it enables a person or entity who has no interest recognised by law in the arbitration to be a third party funder. The Code, which was published in early December 2018, outlines the practices and standards for third party funders. An advisory body will oversee elements that pertain to funding agreements, confidentiality, conflicts of interest, termination and other related issues.

What you can expect to see: Greater clarity and transparency and a spike in the number of funding agreements as Hong Kong’s landscape aligns itself with forward-thinking jurisdictions. It is likely that these new provisions will make it easier to ensure that strong claims can be pursued; and will allow claimants to hedge their costs. In construction disputes, which are often lengthy and expensive, funding may allow parties to spread risk by not having to bear the whole cost of bringing or defending a claim, and will certainly provide considerable cash flow benefits – the traditional ‘life-blood’ of the construction industry.

DVC’s Anthony Houghton SC and Benny Lo closely examined the impact of the Code at the high-level Think Hong Kong, Think Global event in Tokyo recently.

For more on recent trends on how third party funding is viewed by the courts in a civil claim, refer to the recent Raafat Imam v. Life (China) Company Limited and Others [2018] HKCFI 1852 case featuring DVC’s Clifford Smith SC, Sabrina Ho and Tommy Cheung. The Mongolian Mining and China Solar cases, are cases of third party funding in the insolvency context.

For more on third party funding in the insolvency domain and the interaction between insolvency and arbitration please see Look-Chan Ho’s overview from 2018’s Arbitration Week and Look-Chan Ho and Tommy Cheung‘s presentation on Controlling Costs.

Belt & Road Initiative

Another prominent change to Hong Kong’s landscape in 2019 includes the Belt & Road Initiative.

The Belt & Road Initiative which is made up of a belt of overland corridors and a maritime road of shipping lanes linking over 60 countries will bring about complex investment opportunities bisecting the transport, logistic, maritime, telecommunications and other sectors. With multiple cross-border investors tied together contractually, this will inevitably (and unavoidably) lead to a myriad of disputes impacting international trade, commercial, company & insolvency, intellectual property, construction, telecommunications and other major sectors. Given that arbitration is the most popular and cost-efficient mechanism used to resolve cross-border disputes, Hong Kong is geographically poised to leverage contentions arising from these ventures. DVC has handled numerous enforcement (and setting aside) of awards.

The proposed Greater Bay Area initiative is potentially another landmark infrastructure project that will link Hong Kong, Macau and nine cities in Guangdong Province in order to establish a trading, logistical, manufacturing and technological axis for commercial activity. Another significant change entailed the implementation of the new administered arbitration rules (‘HKIAC Rules’) enacted in Q4 of last year.

What you can expect to see: 2019 and going forward, due to the HKIAC Rules being implemented, we will likely see many gridlocked parties turn to Hong Kong as a seat for these arbitrations.

Trump signs order banning Huawei in US

US President Donald Trump signed an executive order Wednesday that effectively prohibits US companies from using any telecoms equipment manufactured by China’s Huawei.

The executive order, which has been under consideration for a year, cites the International Emergency Economics Power Act, a law enacted in 1977 that gives the president broad power to control trade in response to a national emergency.

The order does not mention any countries or companies by name. It instead creates a review process that allows the US commerce secretary to review any transactions involving companies that are viewed as posing a security threat to the country, which would include Huawei.

Chinese Foreign Ministry spokesman Geng Shuang said during a daily briefing in Beijing on Wednesday that “for some time, the US has been abusing its national power to tarnish the image of and crack down on specific Chinese companies.” Nevertheless, the United States has been actively pushing other countries not to use Huawei’s equipment in next-generation 5G networks that it calls “untrustworthy.”

Ho Chi Minh City – A City Guide for Legal Professionals

Ho Chi Minh City, commonly known as Saigon, is a city with a rich culture and history. War relics from the devastating Vietnam War that lasted 20 years, and left a profound impact on the country’s economy, can still be found in the city.

From a war torn country to emerging as one of the world’s fastest-growing economies, Vietnam has come a long way. The city whose fall marked the end of the devastating war is now a major commercial and financial hub of Vietnam.  Here is a quick guide to help lawyers and legal professionals effectively navigate this fascinating city during their visits.

Getting around Ho Chi Minh City

Ho Chi Minh City’s metro line is still under construction and there may be crazy traffic and congestion due to the undergoing metro construction at some places. However, you can still get around the city easily.

Taxi: Taxis are one of the easiest and most convenient ways of getting around Ho Chi Minh City. They are easy to hail and inexpensive. You can also book a cab or a motorcycle taxi through the Grab app.

Motorcycle Taxi (Xe Om): Motorcycles dominate the roads of the city and motorcycle taxis are another convenient way of getting around.

Cyclo: The three-wheeled cyclo can be mostly found at popular landmarks, temples, and restaurants. Once a popular mode of transportation, it is not so common anymore and limited to short trips.

Bus: There are more than 100 bus lines and routes around Ho Chi Minh City and these are a great way of exploring the city on budget. If you chose to travel by bus, you may download the Bus Map App to find all the routes and schedules.

Hotels, Restaurants, Shopping and Entertainment

Most of the City’s luxury hotels are located in District 1. Here you’ll also find some stunning boutique hotels reflecting a unique blend of French colonial and contemporary Vietnamese architecture.

The district is also home to some of the best restaurants and shopping centers and malls of the city. Some of the major landmarks of the city are also located in this area. It is a compact district that can be easily explored on foot.

District 1 is vibrant, touristy and bustling with travelers. However if you prefer a quiet and relaxing place, District 2 is the best area to stay for you. It is an upscale neighborhood by the Saigon River, home to a majority of the expats in the city.

It is far from the city centre and tourist attractions but there are hotels that offer complimentary boat shuttle that will take you to the centre of the city in 15 minutes.

Here are a  few places that are worth visiting on a short trip in Saigon.

  • War Remnants Museum
  • Cu Chi Tunnels
  • Reunification Palace
  • Jade Emperor Pagoda
  • Cao Dai Temple
  • Riverboat tour

Ho Chi Minh City Legal Resources

History of the Vietnam legal profession

In 1946 the Vietnamese legal organization was set up under which the lawyers who had a license to practice before 1945 were required to undertake legal education.

In 1986, Vietnam began to open the doors to introduce reform policies, and set up a private legal practice association.  In 1987, the government issued the ordinance on lawyers.

In 2001, the government again revised the ordinance of 1987. Under the new ordinance, Vietnam tried to open up more to the international community, and they began to negotiate and then sign a US bilateral trade agreement.

In 2007, Vietnam joined the World Trade Organization (WTO).

As a result of increased training opportunities, lawyers in Vietnam enjoy a much more advanced access to education and opportunities.  While 99% of Vietnamese lawyers have been trained at the judicial academy, there is an increasing number of Vietnamese lawyers who have trained abroad or are practicing law with international firms in Vietnam.

Foreign Law Firms & Lawyers in Vietnam

Foreign lawyers have been present in Vietnam since early 1990.  At that time, foreign law firms in Vietnam could only open representative offices, but could not practice law.

In 1998, the government issued Decree 92 which allowed a foreign law firms to  practice law in Vietnam.

The year 2006 saw a new law on lawyers allowing foreign law firms to represent their clients in litigation cases, provided the lawyer who attends the trial is a Vietnamese lawyer.

According to the Ministry of Justice, by the end of 2010, Vietnam had 51 branches of foreign law firms.

Vietnam Law & Legal Forum

Published monthly in English by Vietnam News Agency, since September 1994, Vietnam Law & Legal Forum magazine is a reliable resource for those who wish to inquire into Vietnamese laws and policies.

The OFFICIAL GAZETTE  is the English translation of new legal documents printed in the Government Office’s Công Báo. Since September 1994 more than 7,000 legal documents on different domains have been translated into English and published in the Official Gazette.

Vietnam Bar Associations

Following are the two bar associations of Vietnam:

  • Bar Association of Hanoi
  • Vietnam Bar Federation

Top Law Firms in Ho Chi Minh City

Listed below are a few of the top law firms in the Ho Chi Minh City Area:

  • Allens
  • Baker & McKenzie
  • AV Law LLC
  • D.S. Avocats
  • Kevin Chia Partnership
  • Tilleke & Gibbins International, Ltd.

Law Firms in Vietnam

Following are a few of the top law firms in Vietnam:

  • EPLegal
  • LNT & Partners
  • DFDL, Ho Chi Minh City
  • DFDL, Hanoi

Baker McKenzie Named Mainland Europe’s Strongest Law Brand

Leading Global law firm Baker McKenzie has been named Europe’s strongest law brand in the 2018 Acritas Mainland Europe Index.

The Firm received an overall score of 100 – nearly 30 points ahead of the firm that ranked second place – and ranked top for awareness, favourability, top level engagement, multi-jurisdictional deals, multi-jurisdictional litigation, high value usage and inbound usage. The Firm ranked number one in France and Russia, and placed high in Germany, Spain and Italy.

Constanze Ulmer-Eilfort, Baker McKenzie’s Chair of the EMEA region, said: “To be named the top legal brand in Europe is an outstanding endorsement of the work we do and is welcome validation from the European market of the progress we have made. We’ve built our business around investing in our client relationships and innovating to stay relevant to clients so we’re delighted that commitment has been recognised by senior legal buyers across Europe.”

Ranking is based on the responses of 448 senior legal buyers, based in Mainland Europe about their organization’s overall legal needs, and a further 311 senior legal buyers about their international needs in the key jurisdictions of France, Germany, Netherlands, Russia and Spain.

Esteban Raventós, a member of the Firm’s Global Executive Committee, said: “Brands are built upon trust, and in professional services trust is built through excellent service and expertise. We’re pleased to be recognised for the depth of our practice in mainland Europe and our unique ability to deliver global perspectives and local expertise simultaneously.”

The Firm’s European ranking follows Acritas naming Baker McKenzie the strongest global law firm brand in its Global Elite Law Firm Brand Index for the ninth year in a row. In the global survey, the Firm ranked at the top for each of the measures in the Acritas Index – awareness, favourability, consideration for multijurisdictional deals and for multijurisdictional litigation.

HRW condemns Bolivia dismissal of judges

Human Rights Watch (HRW) accused Bolivia on Monday of undermining judicial independence in the country by arbitrarily dismissing nearly 100 judges since 2017 and called for the Organization of American States (OAS) to address the issue.

The organization called for OAS to convene a meeting of its Permanent Council to address the ongoing changes to the Bolivian justice system that are weakening the rule of law, and to “remind Bolivian authorities that judicial independence, including guarantees protecting judges from arbitrary removal, is a key component of any rights-respecting democracy.”

HRW has accused Bolivia’s Magistrates Council, the body that appoints and dismisses judges, of arbitrarily dismissing dozens of permanent judges without cause or an opportunity to contest their dismissals.

According to HRW, President Evo Morales has taken a stance against judicial independence. HRW reports, in “October 2018, for example, he said that judicial independence was a ‘doctrine of North America,’ meaning the United States, and of ‘capitalism.’”

The current three-member council was elected by popular vote in December 2017. Voters chose from a list created by the Plurinational Assembly, the Bolivian legislature, where the Morales administration held a two-thirds majority. The list presented 10 candidates, six of whom had worked for the Morales administration at some point. Even though the mandate regulating the process set out requirements for the assembly to select candidates based on their experience as lawyers, lawmakers reserved substantial discretion to rank candidates based on interviews.

The dismissals were part of a broader justice reform, which started in 2016, led by a nine-member commission. The commission has sweeping powers, which include controlling the appointment of new judges and taking “other actions necessary” to reform the judiciary. Five of the commission’s members are either Morales supporters in the Assembly or government officials he appointed.

HRW also notes that Bolivia is a party to several treaties regarding human rights, “including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights, that require it to safeguard the independence and impartiality of its judiciary.” Additionally, the UN Human Rights Committee, which oversees compliance with the ICCPR, has advised governments that the right to an independent and impartial judiciary is an absolute right, not subject to any exceptions.

According to HRW, in a comment regarding the absolute right of an independent and impartial judiciary, the UN committee has taken the position that “the requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure,” noting that “judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law.”

EU court advisor sides with Airbnb against French restrictions

The European Court of Justice Advocate General submitted an opinion Tuesday siding with Airbnb in a case challenging strict French rules.

The Prosecutor’s Office in Paris France filed an indictment for infringement of Hoguet law (real estate law) concerning real estate agents against Airbnb Ireland. Airbnb Ireland denies acting as a real estate agent and the Court of Justice agreed. The opinion found that Airbnb services fall within the scope of “information society services.” The AG rejected that the Irish company would be covered by the nation’s Hoguet Law because there was not proper notification of the intention to apply French law to the Irish company.

In a press release accompanying the opinion the court said that the AG found that Airbnb is a “service consisting in connecting potential guests with hosts offering short-term accommodation, via a electronic portal, in a situation in which the provider of that service does not exercise control over the essential procedures for the provision of those services, constitutes an information society service.”

The opinion is not binding on the court, but is likely to be adopted.

ECJ rules EU and Canada trade agreement follows EU laws

The European Court of Justice (ECJ) ruled on Tuesday that the Comprehensive Economic and Trade Agreement (CETA) between Canada and the EU follows EU laws. The court decision was requested by Belgium and was focused on the section of CETA that concerns resolution of investment disputes between investors and states.

CETA will establish a Investment Court System (ICS) to handle disputes between investors and states. The system will include a Tribunal, an Appellate Tribunal, and a multilateral investment tribunal. The Tribunal will include 15 members: five from Canada, five from EU member states and five from third countries.

Belgium filed the request for a decision from the ECJ because the ECJ has exclusive jurisdiction over the definitive interpretation of EU law. The ECJ found that CETA did not violate this principle as long as the CETA Tribunals do not attempt to interpret EU laws.

Belgium was also concerned that the Investor-State Dispute Settlement (ISDS) mechanism would violate the EU’s principle of equal treatment in regards to treatment of a suit raised by a Canadian investor against an EU enterprise. The ECJ found that the equal treatment provision is not violated for a non-EU investor making a suit against an EU member state. The ECJ also found that EU law permits annulment of a fine by an EU member state if the CETA Tribunal finds a defect.

The EU Charter of Fundamental Rights also gives the right of access to an independent tribunal, which Belgium believed may be violated by the establishment of the CETA Tribunal. The concern was based on the fees and costs associated with the Tribunal which may make it difficult for small enterprises to bring a claim. The Commission has committed to providing co-financing for small and medium-sized entities before the Tribunal. The ECJ found these commitments to be sufficient to meet EU law.