The Supreme Court is set to hear the appeal in ‘early December’, the UK government has confirmed.
Hadiputranto Hadinoto & Partners (HHP) has bagged seven awards at the ALB Indonesia Law Awards 2016, including the Indonesia Deal Firm of the Year and the BMW Award for Managing Partner of the Year, which went to Erwandi Hendarta.
The third annual Indonesia Law Awards, presented at a gala dinner at the Hotel Indonesia Kempinski on Oct. 27, also saw SSEK Legal Consultants pick up four gongs, including being named Restructuring and Insolvency Law Firm of the Year. Makes & Partners was honoured as the Boutique Law Firm of the Year, while Allen & Overy picked up the International Deal Firm of the Year award.On the in-house side, Gilang Hermawan of Siemens Indonesia was named as the Assegaf Hamzah & Partners In-House Lawyer of the Year, and Microsoft Indonesia picked up the Lubis Ganie Surowidjojo Award for Indonesia In-House Team of the Year.
This year’s awards had five new categories. Of these, the Rising Law Firm of the Year award went to Siahaan Irdamis Andarumi & Rekan, while Leoni Silitonga of Roosdiono & Partners and Fahrul Yusuf of SSEK were named as the Woman Lawyer of the Year and Young Lawyer of the Year, respectively.
Norton Rose Fulbright will open a European shipping and finance base in Monaco early next year, the firm revealed today.
The office will be led by Greece head Dimitri Sofianopoulos, who will split his time between the two countries.
It will be the firm’s 54th office worldwide and its 13th in Europe. The firm gained permission to open in the principality in September.
Europe, Middle East and Asia managing partner Martin Scott said: “Our shipping and finance practice is widely regarded as a global leader and, as much of its work is derived from businesses located in the principality, it makes sense for us to establish a base there from which to provide an enhanced service to our clients.”
Norton Rose Fulbright joins a small number of international law firms with offices in Monaco. Ince & Co opened in the city in 2011 specialising in shipping, yachts, superyachts and commodities. Gowling WLG’s Monaco offices focuses on private client work, and Hill Dickinson also has an office in the city.
The additional European office signals a renewed period of growth for the firm, which also opened its first base in Vancouver this summer through a merger with local firm Bull Housser & Tupper. The firm also opened in San Francisco this year with a team of 17 lawyers including six partners from Sidley Austin.
The UK Government has been defeated in the landmark Brexit High Court challenge over whether Article 50 can lawfully be triggered without a vote by Parliament.
His verdict read: “The court does not accept the argument put forward by the Government. There is nothing in the text of the 1972 Act to support it.
“In the judgment of the court the argument is contrary both to the language used by Parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers. The court expressly accepts the principal argument of the claimants.
“For the reasons set out in the judgment, we decide that the Government does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union.”
The Government will appeal the decision, with the appeal heading straight to the Supreme Court in early December. The case is understood to have been fast tracked following Prime Minister Theresa May’s pledge to trigger Britain’s exit from the EU next spring.
Successful claimants were represented by Mishcon de Reya and Edwin Coe. Leading the charge was Blackstone Chambers’ Lord Pannick QC as well as Maitland Chambers’ Dominic Chambers QC and Matrix Chambers’ Jessica Simor QC, Helen Mountfield QC and Rhodri Thompson QC.
Representing the UK Government, the Attorney General instructed Blackstone’s James Eadie QC and 11KBW’s Jason Coppel QC.
Bindmans partner Halford, who represented the People’s Challenge group in the claim, said in a statement: “The oversight, control and democratic accountability needed for decisions on Brexit have to match the consequences of those decisions for UK citizens. That is why our constitution empowers Parliament, not the government, to take these decisions.
“The People’s Challenge group and thousands of backers unhesitatingly committed to defending Parliament’s sovereignty. They have prevailed so far and will resist the anticipated government appeal in the Supreme Court.”
The Law Society has also been swift to respond to the groundbreaking verdict. President of the Law Society of England and Wales Robert Bourns said: “The question as to whether the decision to trigger Article 50 is one for the government, using the royal prerogative, or for Parliament through statute is central to this court case. Most commentators assumed that this case – whatever the outcome in the High Court – would be appealed to the Supreme Court so today’s ruling is a step along the road to a final decision.”
Meanwhile a Clifford Chance partner said today’s decision heralds further uncertainty for the business world. The firm’s co-chair of public policy Simon Gleeson said: “This is just round one. Whether this tussle continues solely in the courts or also Parliament, in the form of a bill, it will continue to extend uncertainty and make planning and investment tougher for businesses.”
A number US, UK and Dutch heavyweights have won work on Qualcomm’s $47bn (£38.6bn) acquisition of NXP Semiconductors.
Paul Weiss Rifkind Wharton & Garrison advised Qualcomm on the acquisition, with new corporate star Scott Barshay providing M&A advice alongside partner Steve Williams and tax partner Jeff Samuels.
Barshay’s old firm Cravath Swaine & Moore also won work on the deal, providing finance advice from partners Geroge Zobitz and Scott Bennett. Partners Christine Varney and Yonaten Even worked on antitrust matters.
Allen & Overy advised Qualcomm in Amsterdam, with a team led by corporate partner Christiaan de Brauw. Other team members included tax partner Godfried Kinnegim and corporate partner Joyce Leemrijse.
DLA Piper partners Jay Rains, Doug Rein and Jeff Baglio acted as legal counsel to Qualcomm’s board in the US, while Shearman & Sterling advised Qualcomm on competition law aspects of the acquisition. The Brussels team was led by partners Miguel Rato and Stephen Mavroghenis.
Meanwhile, Sullivan & Cromwell partner Stephen Kotran represented Goldman Sachs as Qualcomm’s financial adviser.
Skadden Arps Slate Meagher & Flom was on hand for the target NXP – a Dutch semiconductor manufacturer. Skadden’s team was led by New York partner Allison Schneirov, who was supported by partners Laura Kaufmann Belkhayat, Kenton King and Alexandra McCormack.
Executive compensation and benefits matters were handled by partner Regina Olshan, while partners Maria Raptis and Steven Sunshine advised on antitrust issues. Partners Ingrid Vandenborre and Gavin White worked on EU competition law and tax advice respectively.
Dutch firm De Brauw Blackstone Westbroek also provided M&A advice, with a team led by partners Arne Grimme and Reinier Kleipool. Tax advice was handled by partner Wiebe Dijkstra.
Qatalyst Partners served as NXP’s financial adviser and sought advice from Jones Day London partner Ferdinand Mason, San Francisco partner Steve Hibbard, Cleveland partner James Dougherty and Silicon Valley partner Daniel Mitz.
The deal will see Qualcomm acquire all of shares of NXP for approximately $47bn. The combined company is expected to have revenues of more than $30bn.
Duane Morris has opened its first office in Taiwan through its joint venture with Singapore-headquartered Selvam.
The US firm announced its joint venture with Selvam & Partners in 2011 and has used it as a springboard to grow in Asia.
As well as giving Duane Morris a base in Singapore, the alliance enabled the firm to open an office in Myanmar at the end of 2013.
Just a few months later, Duane Morris & Selvam also received approval to open a representative office in Shanghai.
The latest Taiwan opening has been spearheaded by New York of counsel Richard Thurston, who was general counsel of Taiwan Semiconductor Manufacturing Company before joining Duane Morris.
Managing partner of local IP firm Asia Law Christopher Neumeyer has joined Duane Morris’s Taiwan office as special counsel, while firm consultant Eric Chu will relocate to Taiwan from New York.
The opening in the Taiwanese capital of Taipei was secured following approval from the Ministry of Justice.
Other US firms already in Taiwan include Winston & Strawn and Jones Day.
Trade between Singapore and Australia is strong as the value of two-way goods trade was AUD 16.2 billion in 2015. Both countries took steps to make it even stronger when they completed the 3rd review and signed updates to the Singapore-Australia Free Trade Agreement (SAFTA) on 13 October 2016.
The new agreement captures the most recent developments in trade rules and includes provisions from the ASEAN-Australia-New Zealand Free Trade Agreement (AANZFTA) and the Trans-Pacific Partnership (TPP). It enters into force in 2017, once Singapore and Australia have completed their domestic treaty processes.
How will this agreement help your business?
The updates create new trade rules for goods, increase opportunities for government contracts, provide greater access to the services sector, facilitate investments, improve mobility for business persons and create rules to facilitate trade in a digital economy. How will this agreement help your business?
· easier claims for preferential treatment by way of clarifying and simplifying the rules of origin and origin certification;
· full schedule of product specific rules of origin including products such as certain electronic machinery, equipment and parts thereof, and certain beverages;
· allows for self-certification and sets origin verification procedures including written requests for information, requests for customs administrations to assist in verification and verification visits;
· new rules and special annexes for the trade of cosmetics, medical devices, and wine and distilled spirits, which are consistent with the TPP.
Updates in the services sector include:
· includes telecommunications and e-commerce TPP provisions to ensure consistency between the trade agreements;
· recognizes Juris Doctor degrees of universities currently listed in SAFTA;
· provides for new access for universities with a graduate model of legal education;
· recognizes the health degrees in physiotherapy, occupation therapy and speech therapy;
· establishes a framework under SAFTA to support mutual recognition of professional qualifications. Priority will be given to arrangements for engineers and accountants;
· provides for cross-border services in investment advice and portfolio management services, and brokerage services for insurance of maritime, aviation and transportation related risk;
· extends the length of stay from 3 months to two years for independent executives and contractual service suppliers;
· extends the length of stay for intra-corporate transferees up to a new maximum stay of 15 years;
· extends the length of stay for individuals offering services relating to installation and servicing of machinery and equipment for up to 3 months;
· allows for spouses and dependents of Singaporeans and Australians to enter as intra-corporate transferees, independent executives and contractual service suppliers.
Updates for investments include:
· updates the existing investor-state dispute settlement (ISDS) and establishes more explicit safeguards that protect the Government’s right to regulate in the public interest including public welfare, health, environment;
· establishes rules to protect government action that may be inconsistent with an investor’s expectations, which is not a breach of the minimum standard of treatment obligation;
· excludes tobacco control measures from ISDS;
· carves out certain government functions from being challenged under ISDS including pharmaceutical and medicare schemes, Therapeutic Goods Administration and Office of the Gene Technology Regulator, foreign investment policy, decisions of the Foreign Investment Review Board, social services including social welfare, public education, health and public utilities and policies related to creative arts, indigenous traditional cultural expressions and other cultural heritage;
· harmonizes investment screening thresholds and rules with the TPP.
Updates for government procurement include:
· modernizes and updates procurement practices including but not limited to establishing transparency for the procurement process and rules for technical specifications so as to avoid unnecessary obstacles to trade;
· facilitates the participation of small and medium enterprises (SME) in government contracts by providing comprehensive procurement-related information in a single electronic portal, making tender documentation available free of charge, conducting procurement by electronic means and consideration of SME subcontracting.
For further information, please contact:
Eugene Lim, Partner, Baker & McKenzie.Wong & Leow
Global investors with aggressive expansion plans often acquire businesses in the host country or buy out units of existing entities which fit in with their strategic ambitions. Such cross border transactions are being increasingly undertaken in India as foreign direct investment is freed from almost all limits, and investors are drawn to India by the availability of skilled low cost resources, and to enter an emerging market with growing demand for goods and services. Among the key issues which an investing company is confronted with, is the tangle of labour and employment laws in India which govern employee rights. Provisions for termination of employment are contained in the Industrial Disputes Act, Shops & Establishment Act of the State in which the establishment is located, Standing Orders Act, and the Service Contracts of employees.
Labour laws referred to above contain restrictions on transfer of employees, redeployment, redesigning employee roles and responsibilities, recalibrating head count numbers and costs. In short, restructuring which involves merger of one unit with another where the original unit loses its identity or becomes part of another entity, or one unit acquires another but the existing unit retains its status as an entity, are all events which lead to change of owner for the employees, or reallocating (transfer) employees between the existing and acquired units, or termination of employment contract, and designing settlement packages, or even re-writing employment agreements within the permissible limits under the local laws.
Divestment of a Unit or Undertaking.
This is a situation in which a running business undertaking is acquired by another company and the ownership of the business changes from the old company to a new company. This may entail simply a sale of assets and purchase by a new company with or without the employees (assuming these to be “workman”) of the transferred undertaking. Where such workmen are not taken over by the new buyer, the old company may continue their service contracts but any redeployment of roles and terms would require consent to be obtained in terms of the ID Act, notices to be given regarding changes in their terms, etc. On the other hand, if the workmen are transferred to the buyer entity, this involves a change of ownership and a new employer for such workers. As judicial norms go, the Supreme Court in India has held that the old employer has to obtain the consent of the affected workers even if there is no change in their terms of service and they are transferred on no less favourable terms.
More significantly, the employee transfer would have to be accompanied by an agreement between the transferor (seller) and the transferee (buyer) under which the seniority or period of service may have to be taken over by the buyer so that there is no interruption of employment for purpose of social security benefits. This will also involve transfer of gratuity funds to the buyer entity and transfer of provident fund accounts of the employees to the new entity.
If the workers do not wish to move over, and the existing employer does not wish to retain them then the workers have to be “retrenched” as redundant under the ID Act and have to be paid compensation, given notice of termination with reason recorded therein, and all their termination benefits have to be paid under appropriate settlement agreements.
There may also be a situation where the transfer of undertaking may involve transfer of workmen on terms less favourable. In this case the workmen who agree to resign from the old employer (seller), and accept to move to the new employer (buyer), would have to be paid retrenchment compensation as provided under the ID Act, and if they have done five years of continuous employment in the seller company, they would have to be paid their gratuity benefits, though the provident fund accounts and balances would have to be transferred to the new employer (buyer). Here a note of caution needs to be sounded for the benefit of the buyer/new employer, as the courts have held that the doctrine of continuing employer mandates that the new employer must take over the service seniority of the employees. Thus, new employers must undertake due diligence to ensure that the appropriate deductions of statutory contributions were made by the old employer and only then take over the accounts. In most cases of mergers (involving sale or transfer of shares), the courts now insist that the buyer would incur the social security obligations as a successor employer.
Determination of the status of employees
Before the separations or transfers as discussed above are carried out or negotiated, it is absolutely necessary to determine the exact status of an employee and whether he/she is a “workman” in terms of the law. There are a number of statutory and judicially defined criteria that have to be applied to the employment agreements or appointment letters to determine the exact status in each case. Further the procedures are also provided for in these statutes. Both the ID Act and the S & E Act of the State concerned provide for notices, grounds of termination simpliciter where permitted, though in most cases only ‘with cause’ termination are permitted. Then, depending upon the industry and strength of the total numbers employed, there are legal requirements of giving simple notice to the government or applying for prior permission to the government in case of large undertakings in certain industrial establishments. Under the ID Act, the procedure to be followed depends on a case to case fact situation of the industry, whether it is in the service sector or in the manufacturing sector.
Where the employees are external resources or “consultants” who were hired for providing services as independent contractors, the procedural requirements and legal conditions for termination are different from those mandated for “workmen”. If these resources have to be terminated as surplus or redundant, their settlement packages, and payment of statutory benefits, if applicable, hinge on the determination of their status.
Redeployment of resources
Acquisitions or mergers also entail redeployment of resources or redesigning of roles. This could involve playing with job titles, descriptions and duties, and service conditions. Often, transfers and relocations may also look inevitable given the need to support some functions and reduce head count in other service verticals. Here again some of the considerations and issues which must be examined prior to implementation are discussed below:-
I. The employees who fall in the category of “workmen” may pose a stickier challenge as the requirements provided for in the legislation would have to be examined and complied with before any program for redesigning or change in terms of service can be implemented. Under the ID Act, the conditions of service of any workman, particularly of any matter specified in the Fourth Schedule, shall not be changed without giving a notice to the workmen likely to be affected by such change. The purpose of this requirement is essentially to ensure that the concerned workmen are notified of the proposed change and if they object to the notice for change, then the employers have to either obtain their consent or negotiate a way out of the workmen’s opposition. Schedule Four contains matters like wages, (reduction of wages would be a bone of contention), contribution paid by the employer to their provident fund or pension fund under any law, compensatory and other allowances, hours of work, leave with wages and holidays, withdrawal of any customary concession or privilege, introduction of new rules of discipline, or alteration of existing rules, etc. The courts in India have ruled that these service conditions cannot be changed without the consent of the affected worker. If the two sides do not agree on a way out, then litigation proceedings can be long and contentious.
II. Consultants and independent contractors or service providers may have to be moved around with reference to their contracts and terms of engagement. Managerial or supervisory employees who may not be “workmen”, may be a simpler category of resources to redesign, depending on the type of employment contract, its duration, and provisions for termination or renewal. However, even under the law of contract in India, the employer may be required to seek the consent of the affected employee, and may have to consider renegotiation during term, with consent, or where possible look at termination clauses and even voluntary exit provisions in the contract. Providing reasonable settlement packages and statutory benefits as per the law also facilitate exits and separation.
The intention behind the Notice prescribed under Section 9-A appears to be that the “workman”, if aggrieved by the proposed change, are provided an opportunity to raise an Industrial Dispute and approach the appropriate forum/ labour authorities, so that the dispute may be made a reference by the appropriate government (State government) if the “workman” and the employer fail to arrive at an amicable settlement. Section 9A is designed to protect the interests of the “workman”. Where a reference is made at the instance of the employer pursuant to an industrial dispute arising out of a Notice under Section 9A to the detriment of the “workman”, the burden to justify the change lies on the employer. The Supreme Court has observed that a benefit prevailing for long, making it a condition of service, should not be allowed to be interfered with lightly to the prejudice of the workmen in the absence of compelling material. At a practical level, employers may follow the requirements of the Proviso to Section 9A, with a view to securing a settlement with the affected workmen, or the concerned employees, so that they voluntarily agree and subscribe to the proposed changes.
Given that termination of employment poses a host of legal challenges, it is better sometimes to consider softer options like negotiating voluntary exits (instead of terminations), or gradual separation of smaller numbers of employees rather than executing bulk discharge of employees. This option is preferable to more drastic measures but also requires careful drafting of settlement agreements and termination letters which must work around the delicate issue of grounds of removal such that employees are not left feeling aggrieved that the terms of their employment were violated or they were treated unfairly. Separation agreements are more often a work of art than a legal challenge and require adroitly worded documents to protect interests of both the parties.
The complexity of the terrain described above, though daunting, does not mean that the law does not permit restructuring of businesses or optimum employee arrangements, but these have to be devised or worked around given the protection of employee rights under the law.
Skadden is delighted to announce that Chiann Bao, Asia Pacific Counsel in the Skadden Hong Kong office, has been appointed to the Council of the Hong Kong International Arbitration Centre (HKIAC). Chiann previously served as the Secretary-General of HKIAC from 2010 until 2016 before joining Skadden on 30 August 2016.
“We’re delighted that Chiann has been appointed to the HKIAC Council, and will be using her fund of knowledge and experience to assist an institution with which she has such a long association and to which she has given such distinguished service” said Rory McAlpine, Skadden’s Head of Asia Disputes.
HKIAC also announced three other new members to its Council Board, in addition to Chiann: Danny Mok, an arbitrator; Anthony Houghton SC, Barrister and Senior Counsel; and Briana Young of Herbert Smith Freehills.
A historic legal challenge over whether UK Prime Minister Theresa May has the power to start the country’s withdrawal from the European Union (EU) appears to have succeeded, with a government lawyer saying that it is now “very likely” that the procedure will be subject to a parliamentary vote.
A group of claimants led by investment manager Gina Miller and hairdresser Deir Dos Santos initiated the legal proceedings to demand that all elected politicians – and not just the Prime Minister – decide on the triggering of Article 50, which starts a two-year deadline for an EU member to complete its exit from the political bloc.
The three judges presiding over the four-day judicial review, which finished yesterday, have not yet made a formal ruling. The judges reserved their decision in order to “consider the matter” more fully, but said they would deliver their judgment “as quickly as possible”. A decision is expected by the end of the month and would be open to appeal.
David Greene, senior partner and head of group action litigation at London law firm Edwin Coe, which is representing Dos Santos, dismissed Eadie’s comments as a “sop to the judges”, however. Greene told Law.com that giving parliament a say on the final Brexit deal does not go far enough. “It is correct that the government may not have [changed its stance] had we not pursued the case, so it is a form of victory,” he said. “The proposal from Eadie means however that parliament will be faced with a fait accompli. Even if they get a vote at the end [of Brexit negotiations], if they do not approve the deal, exit will happen in any event at the end of the two-year period [as set out by Article 50].”
It still represents a significant concession by the government, however, with Prime Minister May previously announcing that she would trigger Article 50 by March 2017. Miller’s skeleton argument [PDF] said that triggering Article 50 without an act of parliament would “substantially undermine” constitutional rights, and added that May’s statement put her on a “collision course” with the courts by effectively “pre-empting the outcome of the case”.
May had softened her approach recently by agreeing to demands from rival parties for parliament to hold a “full and transparent debate” of the government’s Brexit plans before the formal exit process begins, but stopped short of pledging a parliamentary vote on EU negotiations or the triggering of Article 50.
Parliament now appears set for what will be a challenging decision, with large numbers of politicians likely to be conflicted between voting based on their own personal beliefs and upholding the result of a democratic referendum, as the majority of UK politicians wanted the country to remain within the EU.
Miller was represented in the case by London-based Mishcon de Reya. The firm instructed a group of heavy-hitting barristers – specialist UK advocates who represent clients in court, typically operating independently from standalone “chambers” instead of law firms – including David Pannick QC of Blackstone Chambers, widely regarded as one of the country’s leading experts on constitutional law. Mishcon’s London headquarters have been targeted by protesters opposed to the legal action.
Eadie was representing the government alongside UK attorney general Jeremy Wright QC.
Miller and Dos Santos were joined in the action by a number of interested parties and interveners, including The People’s Challenge, which has used crowdfunding to finance the case, raising almost £160,000 ($195,000) from around 4,500 supporters.
The People’s Challenge was represented by John Halford, co-head of public law at London law firm Bindmans, which is known for its work on civil liberties and human rights, and Helen Mountfield QC of Matrix Chambers. The crowdfunding was organised by Grahame Pigney, a British expat living in France who is part of the pro-EU campaign group, Say Yes 2 Europe. “The enforced removal of citizenship rights from 65 million people is completely unprecedented in a modern democracy,” Pigney states on the fundraising page.
A separate crowdfunding by Jolyon Maugham QC raised more than £10,000 ($12,000) to pay for legal advice from public law experts.
The claimants secured an early win a fortnight ago, with a High Court judge ruling that the government release its private legal arguments for not consulting parliament on the triggering of Article 50. The documents revealed that government lawyers will argue it is “constitutionally impermissible” for parliament to be given a vote on the Brexit process. “It is a polycentric decision based upon a multitude of domestic and foreign policy and political concerns, for which the expertise of ministers and their officials are particularly well-suited and the courts ill-suited,” the documents state.
The requirement for the UK’s withdrawal from the EU to be subject to an act of parliament has widespread support within the legal industry. More than 1,000 UK attorneys previously wrote to then Prime Minister David Cameron to demand that MPs vote on the triggering of Article 50.
The news that parliament is now likely to vote on the process has led to a rally in the value of UK currency, which rose 1% to $1.23 – its biggest gain in two months. The British pound hit $1.50 immediately before the EU referendum but its value has plummeted since the Brexit vote. It suffered another steep fall earlier this month, when May indicated that the country would withdraw from the European single market as part of a so-called “hard Brexit”.
There are fears that a loss of single market access could result in banks and other companies – including global law firms – shifting business away from London to other European cities. Last week, Russia’s VTB Bank became the first major financial institution to announce that it will relocate its European headquarters from London due to the UK’s decision to leave the EU.
But it emerged on Monday that the government is now considering plans to continue paying billions of pounds into the European Union budget even after the country leaves the political bloc in order to maintain access to the single market for key industries.
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