CYBER CRIME SPECIAL REPORT

INTERACTIVE EDITION Also in this issue ... • Opportunities in Hong Kong, Shanghai & Singapore • End of service gratuity in the UAE • Revisiting the Indonesian Language Law • HKIAC's new Secretary General MAGAZINE FOR THE IN-HOUSE COMMUNITY ALONG THE NEW SILK ROAD l Volume 13 Issue 10, 2016 Cyber Crime SPECIAL REPORT The thing about … Mark Harris, Founder and CEO of Axiom, discusses corporate law's 'third way' www.inhousecommunity.com

Online, Cloud and e-Resources ... InHouse_AD2014.indd www.inhousecommunity.com The online home of the In-House Community, www.inhousecommunity.com features vital daily legal updates for in-house counsel, company directors and compliance managers, and archived content from ASIAN-MENA COUNSEL contributors. “The In-house Community website provides the window on the development of commercial law, practice and compliance in the growth markets of Asia and the Middle East” Dr Justine Walker, advisor to the British Banking Association

Feature contributors Chris Thomson – Writer-Editor Richard Bell is a dispute resolution partner in Clyde & Co’s Shanghai office. He acts for [email protected] clients in all areas of dispute resolution and has particular experience in joint venture, prop- Brian Chun ­– Design Manager erty development and infrastructure disputes and disputes arising under franchise, distribu- [email protected] tion and importer agreements. Bell frequently acts for clients in cross border arbitration Wendy Chan ­– Regional Head of Events proceedings including LCIA, ICC, DIFC/LCIA, DIAC and ad hoc arbitrations. He also [email protected] assists clients with court proceedings in overseas jurisdictions and has particular experience Gigi Ma – Events Manager in dealing with disputes in difficult jurisdictions and emerging markets. [email protected] Rahul Prakash – Associate Publisher Richard Hudson specialises in litigation and dispute resolution and has extensive experi- [email protected] ence of a broad range of litigation matters, including contentious insolvency, regulatory and Yvette Tan – Community Development Manager investigatory matters, contentious probate, employment, professional indemnity and discipli- [email protected] nary matters, shareholders’ and partnership disputes and major commercial cross-border liti- Yannie Cheung – Office Administrator gation. Hudson regularly advises office holders and creditors in relation to all aspects of [email protected] contentious personal and corporate insolvency matters and companies and individuals in relation to criminal and regulatory investigations and proceedings, disciplinary action and internal investiga- Tim Gilkison – Managing Director tions involving fraudulent employee conduct. [email protected] Patrick Dransfield –­ Publishing Director FIND A LAWYER ... [email protected] Arun Mistry – Director Search by Practice and Industry at www.inhousecommunity.com Editorial Enquiries Tel:........................ (852) 2542 4279 Fax:....................... (852) 2575 0004 [email protected] Advertising & Subscriptions Tel: ....................... (852) 2542 1225 Published 10 times annually by ... AND SEND THEM AN Pacific Business Press Limited Room 2007, C C Wu Building, 302-8 Hennessy Road, Wan Chai, Hong Kong S.A.R. Publishers of • ASIAN-MENA COUNSELTM Magazine and Weekly Briefing • IN-HOUSE HANDBOOKTM Organisers of the • IN-HOUSE CONGRESSTM events Hosts of • www.inhousecommunity.com • www.mycareerinlaw.com Forums for the In-House Community along the New Silk Road © 2016 Pacific Business Press Limited and contributors Opinions expressed herein do not constitute legal advice, and do not necessarily reflect the views of the publishers. ISSN 2223-8697

In this issue Volume 13 Issue 10, 2016 Cyber Crime 19 SPECIAL REPORT 20 Being ‘Verbal’ with cyber crime and data protection Looking at jurisdictions with both longstanding and emerging cyber crime and data privacy laws, we see why arriving late to the party can sometimes be an advantage. 25 Combating the ‘CEO Fraud’ scam How to spot it, and how to get your money back In his article, Richard Hudson, Partner, Litigation & Dispute Resolution at Deacons details the ‘CEO Fraud’ phishing scam and explains measures companies can take to both reduce the risk and mitigate after the fact. 28 Electronic growing pains Cyber security and data protection in the People’s Republic of China Clyde & Co’s Richard Bell looks at China’s approach to cyber security and data protection, noting that China, unlike Singapore and Hong Kong, does not currently have a stand-alone governing law. 18 6 The Briefing 32 We bring you some of the biggest in-house opportunities around Asia, as well as the latest deals and moves along the New Silk Road. There’s also a news story about the HKIAC’s new Secretary General and a write-up of our most recent event in Jakarta. 18 Investigative Intelligence Protect your systems: five cyber-attack realities to guide you. 32 The thing about ... Mark Harris Asian-mena Counsel’s Patrick Dransfield talked to and photographed Mark Harris, Founder and CEO of Axiom, while Mark was briefly in Hong Kong and put to him a series of questions on behalf of the In-House Community. 2 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

36 JURISDICTION UPDATES Key legal developments affecting the In-House Community along the New Silk Road Anti-trust guideline for automotive industry introduces 36 presumed exemption for vertical agreements 39 汽車業反壟斷執法指南提出縱向協議推定豁免 42 By Kevin Xu and Franz Li of Martin Hu & Partners Compulsory licensing of patents in India: a human rights issue as well! By Rahul Beruar and Sarita Rout of Clasis Law Revisiting the Indonesian Language Law By Miftahul Khairi of SSEK Legal Consultants New Minimum Wages from July 2016 By ZUL RAFIQUE & partners Interplay of domestic law on compulsory licensing and international agreements on medicine prices By Harry Gwynn Omar M. Fernan of ACCRA Law Offices The right to be forgotten By Yeun-Sook Suh of Lee International IP & Law Group End of Service Gratuity By Rebecca Ford, Sara Khoja and Samantha Ellaby of Clyde & Co NEW regulation of Vietnam on re-organisation of credit institutions By Tran Duc Toan of Indochine Counsel 45 Asian-mena Counsel Direct Important contact details at your fingertips. About the IN-HOUSE COMMUNITY A mutually supportive community of In-House Counsel helping In-House Counsel and Compliance Professionals meet their ethical, legal and business commitments and responsibilities within their organisations. The In-House Community comprises over 21,000 individual in-house lawyers and those with a responsibility for legal and compliance issues within organisations along the New Silk Road, who we reach through the annual In-House Congress circuit of events, Asian-mena Counsel magazine and Weekly Briefing, and the In-House Community online forum. Empowering In-House Counsel along the New Silk Road since 1998 3 Volume 13 Issue 10, 2016

In-House SENIOR EQUITIES LAWYER HONG KONG 10+ years HEAD OF COMPLIANCE SINGAPORE 10+ years US i-bank seeks a senior equities lawyer to advise on a range of corporate An Asia-based asset manager is looking for a senior compliance person equity derivatives deals. You will be a senior associate / counsel from a to head up its compliance function. Prior experience in regulatory matters top tier law firm or a senior in-house counsel with strong technical skills in relating to more than one of the SFC, MAS & FSA as well as experience in derivatives & equity capital markets. Chinese not required. AC5401 managing a team are essential. AC5845 REGULATORY HONG KONG 8-12 years INSURANCE LEGAL COUNSEL HONG KONG 7-12 years Great opportunity for a senior lawyer with experience in advisory financial Global insurance company seeks a mid to senior level insurance lawyer to services regulatory work to join a regulator. The ideal candidate will be handle non-contentious insurance matters. In-house experience & good familiar with the HK securities & companies legislation. Fluent English & knowledge of insurance products are essential. Strong communication Cantonese essential. Excellent work/life balance on offer. AC5594 skills, fluent English & Cantonese are required. AC5859 TMT/COMMERCIAL HK / SHANGHAI 3-10 years LITIGATION HONG KONG 6-10 years Major player in the technology industry is looking for a commercial lawyer In-house opportunity for a mid-level litigator with experience in general with solid experience in internet, e-commerce / TMT matters & qualified in commercial/financial services litigation. Strong analytical skills & the ability the US or a Commonwealth jurisdiction. An excellent opportunity to step up to understand complex issues are required. Good work/life balance on offer. in the technology field. Fluent Mandarin is essential. AC5546 Fluent written & spoken English & Chinese are essential. AC3989 PRIVATE BANKING COMPLIANCE HONG KONG 10+ years COMPLIANCE/EMPLOYMENT HONG KONG 5+ years Global bank seeks a senior compliance expert or lawyer to manage its US company seeks a mid-level lawyer to handle general compliance issues private banking compliance team. Candidates in similar roles at other & contentious & non-contentious employment matters. Experience gained financial institutions or lawyers with trusts/private wealth experience will be from international law firms/MNCs preferred. Strong communication skills & considered. Experience in financial crimes a bonus. AC5704 fluent English & Chinese are required. AC5769 CORPORATE / COMMERCIAL HONG KONG 5+ years DCM HONG KONG 3-8 years A listed bio-medical technology company is seeking an in-house lawyer An established bank is looking for a DCM legal counsel. You will have with strong experience in commercial contracts & M&A transactions. strong private practice / in-house experience in DCM work & any additional Prior experience with PRC companies & VIE structures would be highly experience in ECM and M&A/PE would be a bonus. Mandarin is essential. advantageous. Mandarin & Cantonese skills are essential. AC5785 Excellent work and friendly environment on offer. AC5374 Private Practice PE PARTNER HONG KONG 10+ years HEAD OF COMPLIANCE HONG KONG 7-12 years Top tier UK firm is looking for a partner level lawyer with solid track record A UK law firm is looking to hire a senior lawyer with strong experience in in PE transactions. Chinese helpful but not essential - more important are corporate matters, in particular listing rules compliance. This role will work quality technical skills/PE deal experience and culture fit. Candidates with closely with the corporate partners & will supervise associates. Chinese transactional in-house experience will also be considered. AC5911 language skills are essential. Competitive pay. AC5569 BANKING & FINANCE PSL HONG KONG 4-15 years CORPORATE PSL HONG KONG 3-6 years A global law firm seeks a professional support lawyer with experience Top UK firm is seeking a corporate lawyer for a PSL role. You should from a top tier banking & finance practice. Experience in the execution have solid HK corporate experience particularly in IPO and M&A matters. of mainstream banking & finance transactions ideal. Excellent spoken & Chinese language skills would be preferred but are not essential. Excellent written English skills essential, Chinese skills preferred. AC5791 work/life balance on offer. AC5612 DCM HONG KONG 3-8 years ASSET FINANCE HONG KONG 4-5 years Reputable UK law firm is seeking a mid-level associate with solid DCM UK firm is seeking a finance lawyer with HK/Commonwealth qualifications. experience and fluent Mandarin language skills. The role will be DCM The role involves a mixture of ship, aviation, trade & general finance matters. focused but offers the opportunity to assist on matters involving structured Able to work on English law documents, excellent English language & debt products & derivatives. AC5900 drafting skills required. Overseas candidates are welcome. AC5915 This is a small selection of our current vacancies. Please refer to our website for a more comprehensive list of openings. Please contact Emily Lewis, [email protected] + 852 2537 7408 or Eleanor Cheung, [email protected] + 852 2537 7416 Karishma Khemaney, [email protected] + 852 2537 0895 or email [email protected] www.lewissanders.com

In-House HEAD OF COMPLIANCE HONG KONG 10+ years LEGAL DIRECTOR - TMT/COMMERCIAL HK 10-15 years A growing financial institution seeks a Head of Compliance to oversee Technology solution provider listed in HK seeks a senior level HK qualified the Group’s securities brokerage & asset management businesses. Prior lawyer with strong IP/technology & corporate commercial experience to compliance experience with major financial institutions in Hong Kong handle legal matters of the group & manage a team of lawyers in China. required. Fluent spoken & written Mandarin & English essential. AC5946 Fluent Mandarin is required. AC5706 FIXED INCOME DERIVATIVES x 2 HK/SINGAPORE 3-10 years COMMERCIAL HONG KONG 5-10 years Global investment bank is seeking two experienced derivatives lawyers to A well-established Hong Kong based conglomerate is looking for a mid join its legal team in the HK or Singapore office. You will have a UK, HK to senior level commercial lawyer. You will have extensive commercial or Singapore qualification & strong experience in fixed income and OTC experience gained in-house or with a top-tier law firm. Fluent Mandarin derivatives and structured products. Chinese not essential. AC5880 language skills are essential. AC4301 COMMERCIAL HONG KONG 5-8 years REGULATORY/ DERIVATIVES HONG KONG 3-9 years US fashion brand seeks a legal counsel with in-house experience to Well-known European financial institution seeks a regulatory/derivatives cover general commercial contracts, employment, IP, finance & corporate lawyer with strong HK/Asia financial services regulatory experience. Prior governance matters. Good communication skills, fluent English, Cantonese exposure to derivatives / structured products matters would be advantageous & Mandarin are required. Good work/life balance on offer. AC5372 but not essential. Excellent work/life balance on offer. AC5672 VP - PRIVATE WEALTH MANAGEMENT HONG KONG 5-8 years VP - M&A HONG KONG 6-8 years Top tier investment bank is looking to hire a mid level lawyer with private An investment bank seeks a M&A lawyer with HK/ US/ E&W/ Commonwealth wealth management / private banking experience gained from private qualification. Experience in public takeovers advantageous. You will provide practice or in-house. Excellent working environment & competitive legal analysis & advise on issues related to the M&A business. Fluent remuneration on offer. AC5073 English & Chinese language skills are essential. AC5956 COMPLIANCE LEGAL COUNSEL SHANGHAI 3-7 years COMMERCIAL HONG KONG 4-6 years US apparel company requires a legal counsel to support its compliance Logistics company seeks a mid-level lawyer to handle general commercial functions in the APAC region. You will handle anti-corruption/anti-bribery contracts, employment, tenancy, compliance & company secretarial & data privacy matters & implement compliance programs. Business level matters. Prior in-house experience is advantageous but not essential. HK Mandarin & strong commercial acumen are essential. AC5881 qualification and fluent Cantonese & Mandarin are required. AC5912 Private Practice DERIVATIVES HONG KONG 2-6 years M&A HONG KONG 2+ years Leading UK firm seeks a junior to mid-level lawyer with solid OTC derivatives Prestigious US firm is looking for a top-tier corporate associate to focus experience & Commonwealth qualification. Chinese skills are not essential purely on M&A and PE transactions. The ideal candidate will be admitted to & overseas candidates are welcome to apply. Junior candidates will also be practice in Hong Kong, have excellent academic credentials and be trained considered. AC4984 at a peer US or UK firm. Chinese language skills are not required. AC5722 FUNDS HONG KONG 2+ years ASSET FINANCE HONG KONG 1-5 years International firm is looking for a junior to mid-level funds lawyer for its Hong Top UK law firm is seeking an asset finance lawyer with at least 1 year’s Kong office. Post-qualification experience with fund formation transactions, experience from a reputable asset finance team. Experience in aviation top tier firm training & strong academics are required. Chinese language and/or ship finance matters is required. Commonwealth & PRC qualification skills are preferred. Open to relocation. AC5830 would be an advantage. Fluent Mandarin is essential. AC5914 ARBITRATION HONG KONG 0-5 years BANKING HONG KONG 0-3 years Reputable UK law firm is looking for a junior/mid-level associate with solid Magic Circle firm seeks a junior associate for its top tier banking team. arbitration experience from a top-tier firm. Strong Chinese language skills This role will focus on leveraged and acquisition finance, as well as general & HK qualification are essential. Candidates with a mixed arbitration & banking. You will have relevant experience & training from a reputable litigation background will also be considered. AC5874 international law firm. Open to relocation. AC5045 This is a small selection of our current vacancies. Please refer to our website for a more comprehensive list of openings. Please contact Lindsey Sanders, [email protected] + 852 2537 7409 or Jenny Law, [email protected] + 852 2537 7448 Chris Chu, [email protected] + 852 2537 7415 or email [email protected] www.lewissanders.com

The Briefing MOVES The latest senior legal appointments around Asia and the Middle East AUSTRALIA Previously she was an associate at two other leading UK/US law firms, respectively (mainly at their Hong Kong office). She started Norton Rose Fulbright has added her practice with one of the top PRC law firms. Lu is a graduate Samantha Kelly as a partner in Sydney. of Peking University (LLB 1996 and LLM, 1999) and Harvard Law She was a senior insurance partner at DLA School (LLM 2001). She is admitted to New York and Hong Kong Piper and predecessor firm DLA Phillips Bars and also qualified to practice in the PRC. Fox. Kellys experience is in the defence of general liability and casualty claims, HONG KONG product liability, environmental liability and defamation. She has acted for top Austral- Samantha Kelly Appleby has added Fiona Chan as a ian and international insurers and compa- partner in the Hong Kong office to further nies, including in class action disputes, general civil litigation and bolster the offshore firms Asia bank- royal commissions, coronial inquests and other bodies of inquiry. ing and finance practice. With extensive experience advising on various offshore CHINA jurisdictions, Chan joins the firm after working approximately five years off- Norton Rose Fulbright has added Paul Wee Ei Don as a shore in Hong Kong. She has also spent Fiona Chan 10 years onshore with the London and banking and finance partner in the Beijing office. He joins the Hong Kong offices of Clifford Chance. Her experience spans the spectrum of banking and finance transactions, including firm after almost eight years in the Beijing office of Clifford bilateral and syndicated lending, project and acquisition finance, asset-backed and property financing, energy and infrastruc- Chance. Don has also worked in leading law firms in Australia ture financing, pre-IPO debt and equity finance, corporate restructuring / pre-insolvency and various forms of credits and Malaysia, and is a published co-author of a 700-page legal and securities. text on syndicated loans and bonds in Malaysia. Fluent in Man- darin, Don is a project finance lawyer who works with large Chinese policy and commercial banks, predominantly on out- bound project and export credit financing across a broad range of sectors with a particular focus on the mining and metals, oil and gas, power and infrastructure sec- Eversheds has added Rachael Shek tors. Over the past several years, he has as a partner in its disputes practice. worked on some of the largest Chinese Joining from Herbert Smith Freehills in outbound financings involving various Hong Kong, Shek is a highly regarded Paul Wee Ei Don jurisdictions from Australia and Angola to dispute resolution specialist who has the Ukraine and Venezuela. advised Chinese state-owned compa- nies, multinational corporates, global Dechert has added Lucy (Qiong) Lu Rachael Shek investment banks and other financial as a national partner in the corporate services providers, manufacturers and team. She will be a resident in the Beijing office. Lu has more than 13 years experi- high net worth individuals. ence handling cross-border transactions in China. Her practice focuses on China INDIA outbound M&As, foreign direct invest- ment into China and other cross-border Lucy (Qiong) Lu Sidley Austin has added Manoj Bhargava as a partner in the transactions involving Chinese entities. She India practice in the Singapore office. He is an accomplished cor- concentrates on PRC-related corporate matters, including M&As, porate finance lawyer with extensive experience advising clients private equity, restructuring and general corporate matters repre- in structuring and executing cross-border senting multinational companies and financial institutions in their transactions involving India. New York M&A and other transactions involving Chinese entities/assets, and India qualified, Bhargava led the India as well as PRC entities in their outbound investments. Lu has practice at his prior firm and has built also worked on some high-profile IPO transactions getting PRC a substantial practice advising clients on companies listed overseas. Her expertise also encompasses areas capital markets, M&A and other corporate such as regulatory compliance and employment matters. Lu most finance matters. Within the last decade, recently served as counsel at Akin Gump Strauss Hauer & Feld. he has advised on over 100 transactions involving international and Indian invest- Manoj Bhargava 6 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

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The Briefing MOVES SINGAPORE ment banks, large and small Indian companies and multinational Bird & Bird has added Alexander Shep- companies operating in India. He has advised on several ground- breaking transactions, including Indias first qualified institutions herd as partner of the global Tech & placement. Comms group. He will be based in Singa- HSA Advocates has added Aninda Pal as a partner in the Mumbai office. Prior to joining the firm, Pal was a partner at Juris pore to enhance the firm's transactional Corp, before which he worked as a counsel in Trilegal, where he was a senior member of the corporate practice. With over a capabilities in the TMT sector in South decade of experience, he specialises in M&As (in-bound and out- bound), private equity, venture capital, joint ventures, corporate East Asia/the ASEAN region. Shepherd restructurings, regulatory advisory and general corporate. joins from Simmons & Simmons Singa- Alexander Cyril Amarchand Mangaldas has added Shagoofa Rashid pore, where he was a partner in the ICT Shepherd Khan as partner in its Mumbai office. Joining as national head of practice group, and head of the technol- funds, investment and advisory, she has 17 years of experience across structuring funds, managed accounts, fund documentation, ogy, media and telecom sector group in Asia. He relocated to acquisitions / exits / restructuring / joint ventures and strategic ini- tiatives, international taxation and planning, corporate and com- Singapore in 2013 to help establish Simmons & Simmons' office. mercial laws, business advisory, compliance and ethics advisory, audit and finance. Khan has extensively worked as an in-house Prior to this, he was based in Dubai for almost seven years and counsel of leading players in the Indian financial services industry, such as Kotak Bank subsidiary Kotak Investment Advisors Ltd, advised on matters across the Middle East and Africa. Shepherd Tata Sons and IDFC Alternatives Ltd, alternate assets manager of IDFC group. She was also head of real estate funds and interna- is an England and Wales qualified lawyer specialised in the legal, tional tax policy practice teams at Nishith Desai Associates. commercial and regulatory aspects of telecom, IT, technology JAPAN and e-commerce matters. His key area of practice is advising on White & Case has added David Albagli, PhD as a local partner in the global intellectual property practice. He will be based in technology procurement and regulated outsourcings for financial Tokyo. Albagli brings extensive experience on a wide range of IP matters spanning patent litigation, prosecution, opinion work and institutions, investment funds and insurance companies. patent portfolio strategy development, as well as pre-litigation counseling and due diligence investigations. He also advises on Sidley Austin has strengthened its global IP-related transactional matters and has significant hands-on experience as a patent attorney. His work on IP matters focuses project finance and infrastructure practice on pharmaceuticals and biotechnology, and includes chemicals, polymers, medical devices and semiconductors. Albagli is also with the addition of David Gartside, an an experienced scientist with expertise in a wide range of fields, particularly in nucleic acid technologies, chemical synthesis, experienced Asia-based project finance electrochemistry, microfluidics, polymers and biochemistry. He and development lawyer, as a partner in graduated from Princeton University and received his PhD from the Massachusetts Singapore. Gartside advises project spon- Institute of Technology and his JD from the University of California Hastings. Albagli sors / developers, utilities, contractors, is qualified to practice in California and at the US Patent and Trademark Office. He David Gartside commercial lenders, infrastructure funds, is a registered foreign attorney in Japan export credit agencies, multilateral agen- (Gaikokuho Jimu Bengoshi) and a member David Albagli, PhD of the Daiichi Tokyo Bar Association. cies and development banks on major international projects and project financings. He has also counseled clients on acquisitions, restructuring, and asset and trade financings. His experience includes a landmark financial institution portfolio transfer, as well as representing Korean and Japanese trading houses, contractors and financial institutions on joint overseas projects in Asia, the Middle East and Latin America. Hogan Lovells Lee & Lee has added Kent Phillips as a litigation and arbitration partner in Singapore, bringing a wealth of experi- ence in arbitration, the energy sector and Southeast Asia. He will join from Berwin Leighton Paisner where he is the head of arbi- tration. He originally qualified in New Zealand before moving to London in 1998. Phillips has previously handled one of the most significant and high profile cases before the English courts in acting on the Berezovsky litigation. He is experienced as counsel and as arbitrator, particularly in the energy sector (including projects and construction) and also in financial services. AMC 8 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

LEGAL RECRUITMENT FIRM OF THE YEAR ASIA taylorroot.com @TaylorRootLegaL taylor-root

The Briefing DEALS Featured below are some recent headline deals from newbuildings. The consortium of banks across Asia and the Middle East led by ING included KFW IPEX-Bank, OCBC and Standard Chartered Bank. AUSTRALIA runners and the underwriters in respect The VLGCs are four in a series of twelve of JD.coms debut SEC-registered debt VLGC newbuildings in the orderbook of Clifford Chance is advising the offering, consisting of US$500 million of BW LPG. The delivery of the first VLGC shareholders of Right2Drive in respect its 3.125 percent notes due 2021 and is scheduled for 9 May 2016. Madeline of the proposed acquisition by Eclipx US$500 million of its 3.875 percent notes Leong, head of the international finance for net consideration of A$67 million due 2026. JD.com is the largest online team and of the Hong Kong office, led the (US$49.3m). Eclipx is Australia's leader in direct sales company in China. JD.coms transaction. vehicle fleet leasing, fleet management and ADSs currently trade on the NASDAQ diversified financial services in Australia Global Select Market. Partners William Howse Williams Bowers has advised and New Zealand. Right2Drive is a market F Barron and John D Paton led the Altus Capital Ltd as the sponsor and leader in accident vehicle replacement, transaction. Upbest Securities Company Ltd operating in 16 locations across Australia and Altus Investments Ltd as the and New Zealand. Partner Lance Sacks Mayer Brown JSM has advised Dah underwriters in respect of the listing by is leading the transaction. Chong Hong (DCH) in respect of its way of placing of A.Plus Group Holdings acquisition of Li & Fung's consumer Ltd on the Growth Enterprise Market Clayton Utz has advised Perth-based and healthcare distribution business in of the HKSE. The shares commenced ASX and AIM-listed tungsten miner mainland China, Hong Kong, Macau, trading on 19 April 2016. A.Plus Wolf Minerals Ltd in respect of on Taiwan, Thailand, Malaysia, Singapore, Group and its subsidiaries are a Hong its 25 million (US$36.4m) equity facility Philippines, Indonesia and Brunei. The Kong-based financial printing service established with Resource Capital Fund acquisition has a total cash consideration provider in relation to financial reports, VI LP (RCF VI), announced to the market of US$350 million, subject to working announcements, shareholder circulars, on 29 January 2016 and approved by capital adjustments on a cash-free, debt- debt offering circulars, IPO prospectuses Wolf shareholders on 22 April 2016. free basis. The acquisition is expected and fund documents. It is the third financial Perth Corporate Advisory/M&A partner to be completed by June this year. A printing service provider to have listed on Matthew Johnson led the transaction. publicly-listed subsidiary of CITIC, DCH the HKSE so far. Partner Chia Ching Tan is an integrated trading and distribution led the transaction. CHINA company operating in Asia with a focus on Greater China. The company is also INDIA Baker & McKenzie has advised BOE supported by an extensive logistics Technology Group Co Ltd, a joint stock network. Corporate and securities partner Dhir & Dhir Associates has advised the company established in the PRC and Jeckle Chiu led the transaction. consortium of lenders, led by Indian listed on the Shenzhen Stock Exchange, Renewable Energy Development Agency in respect of its share subscription, HONG KONG Ltd for the INR1.95 billion (US$29.3m) through its wholly-owned subsidiary, in financial assistance to Baitarani Power HKSE-listed Varitronix International Ltd. Shearman & Sterling is advising HKSE- Projects Private Ltd for part financing its The subscription involved 400 million listed Phoenix Healthcare in respect proposed 24 MW Lower Baitarani Hydro new shares at an issue price of HK$3.5 of its approximately US$160 million Electric Power Project at Village Singanali, (US$0.45) each, amounting to HK$1.4 acquisition of hospitals of CITIC Medical & Taluk Anandpur, District Keonjhar, State of billion (US$180m) and was completed on Health Group, a wholly-owned subsidiary Odisha. The other consortium members 28 April 2016, making BOE the controlling of CITIC Group Corp, a large scale state- included PFC Green Energy Ltd and IIFCL. shareholder of Varitronix. BOEs three core owned enterprise under the administration Associate partner Girish Rawat led the businesses include display device, smart of the State Council of the PRC. Partner transaction. system and healthcare service. Varitronix Peter Chen is leading the transaction. is principally engaged in the design, Duane Morris & Selvam has acted as manufacture and sale of small-to-medium Watson Farley & Williams has advised US counsel to the President of India in sized liquid crystal displays and related ING Bank NV as global coordinator and respect of the sale of 1.25 billion shares in products worldwide. Shanghai and Hong a mandated lead arranger in respect of the NHPC Ltd for approximately INR27 billion Kong corporate partners Lance Chen and US$221 million KSURE-backed secured (US$405m) in an offer for sale on the stock Christina Lee led the transaction. debt financing to Oslo-listed BW LPG, exchanges in India. The shares were sold in relation to the funding of four VLGC pursuant to Regulation S and Rule 144A Davis Polk has advised the joint book- under the US Securities Act of 1933, as 10 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m



The Briefing DEALS amended. The shares sold represented Delhi-headquartered Hero Groups entry Jucker Public Company Ltd in respect 11.36 percent of the outstanding shares in into the electronics and technology of the 3.2 billion (US$3.7b) bridge facilities NHPC and reduced the President of Indias space. Corporate M&A head Aparajit provided by BNP Paribas, HSBC, Rabobank shareholding to 74.6 percent. NHPC, an Bhattacharya, supported by partner ICBC, Mizuho Bank, Standard Chartered Indian hydropower generation company, Harvinder Singh, led the transaction. Bank, SMBC and Bangkok Bank. The funds is now compliant with the SEBI minimum are for the acquisition of a 58.56 percent public shareholding norms, which mandate JAPAN stake in the Big C Supercenter Plc, a large all public sector companies, except state- Sullivan & Cromwell has represented nationwide retail store, from the France- owned banks, to have at least a 25 percent Sompo Japan Nipponkoa Holdings Inc based Casino Group. This is the largest public shareholding. Edelweiss Securities in respect of its tender offer for the acquisition financing in Thailand in 2016 to Ltd, HSBC Securities and Capital Markets shares of common stock of Message Co date. Partner Passawan Navanithikul led (India) Pvt. Ltd and IDFC Securities Ltd Ltd (Japan) and in Messages subsequent the transaction. managed the offering. Jamie Benson, consolidation as a subsidiary of Sompo head of India practice desk and US Japan Nipponkoa. Tokyo corporate UAE securities law practice, led the transaction partner Keiji Hatano led the transaction whilst Crawford Bayley & Co acted as which was completed on 7 March 2016. Hogan Lovells has advised Kuwait-based Indian counsel. AZB & Partners acted as Sadita Holding Company, as the sellers, Indian counsel to the brokers. SINGAPORE in respect of the sale of Multibrands Allen & Gledhill has advised Oversea- Trading Company, one of the largest HSA Advocates has advised Hero Chinese Banking Corp Ltd as sole lead food and beverage distributors in the Electronix, a subsidiary of The Hero manager and book-runner in respect of Middle East, to Gulf Capital, a major Group, in respect of acquiring a strategic the issue of S$250 million (US$182.6m) alternative investment firm. With an annual stake in Tessolve Semiconductor, the 4.25 percent notes due 2026 by FCL turnover of US$100 million, Multibrands Bangalore-headquartered leading Treasury Pte Ltd under its S$3 billion is one of the leading food and beverage semiconductor engineering services (US$2.2b) multicurrency debt issuance distributors in Saudi Arabia. It distributes company. Hero Electronix will complete programme. Partners Ong Kangxin and more than 50 brands across five main the phased acquisition of significant Sunit Chhabra led the transaction. product categories, through retail chains, majority holding in the company by the hotels, cafes, bakeries and restaurants. end of 2016. Tessolve Semiconductor THAILAND Dubai corporate partner Imtiaz Shah led currently has operations pan-India and Weerawong C&P has represented Berli the transaction. across USA, Singapore, Malaysia and other regions across the globe. Hero Electronix AMC was formed in 2015 and marked the Asian-mena Counsel is grateful for the continued editorial contributions of: 12 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Stand Out With Hughes-Castell In-house Private Practice Legal Director | 10+ yrs pqe | Singapore REF: 13223/AC Dispute Resolution Associate | 6-7 yrs pqe | Beijing REF: 13501/AC AFortune500healthcarecompanyislookingforanM&Alawyerwith10+PQEtotakeon Excellentopportunityfora disputeresolution lawyerto furthertheircareer theLegalDirectorroleforAPAC.YouwillberesponsibleforhandlingcomplexM&Adeals development at this international law firm in Beijing. You will have the independentlyacrosstheregion.YoumustbeSingaporequalifiedwithaproventrackrecord opportunitytohandlecomplexcommercialdisputesinvolvingmultinational inM&Atransactionsandinregulatorycomplianceataregionallevel.Candidateswithgood companies and to work on interesting and high-profile cases. Ideally, you drafting skills and strong litigation management and regional experience are preferred. are overseas qualified with 6-7 years’ PQE in investigation and litigation at international law firms. Candidates with a JD and international experience Legal Director | 10+ yrs pqe | Hong Kong REF: 13407/AC are welcome to apply. You must have fluent English and Mandarin. This fast growing financial services company is seeking a commercial lawyer with 10+ Associate | 4-6 yrs pqe | Hong Kong REF: 13338/AC years’PQEtojoinitsHongKongofficetosupportitsbusinesslines.Youwillberesponsible for providing legal advice on investment transactions, dispute resolutions, commercial This White Shoe law firm is seeking a funds formation lawyer to join contracts, regulatory and licensing matters. You need to be commercially minded and its busy practice in Hong Kong. This role is a unique chance to join have a proactive approach for this leadership role. Extensive legal advisory experience in this prestigious practice constantly ranked at the top of the league financialinstitutionsorlawfirmsisessential.FamiliaritywiththeSFCandrelevantregulatory tables for investment funds. With 4-6 years’ PQE and Common guidelines and legal experience in asset management, M&A and PE experience are Law qualification, you should have an excellent academic record highly desirable. You must have fluent English, Cantonese and Mandarin language skills. and previous private practice experience at White Shoe and/or top-tier law firms. Native-level Mandarin and fluent English skills Regional Compliance Director | 8+ yrs pqe | Shanghai REF: 13524/AC are mandatory. You will ideally be currently based in Hong Kong. Fast-growing technology MNC is seeking a senior compliance lawyer with strong Banking & Project Lawyer | 4+ yrs pqe | Beijing REF: 13385/AC technology and international experience to join its Beijing/Shanghai office. You will primarily be responsible for maintaining compliance best practices and liaising This leading international law firm is seeking a bright lawyer with solid with government entitles as necessary. The ideal candidate must have at least 8 banking experience to join its Beijing office. You will be working closely years’ compliance experience in FCPA and/or anti-corruption rules and regulations, with its banking and projects team advising clients on high-profile and preferably gained in law firms, government entities or an MNC. Familiarity with complex lending transactions in Asia. Your key areas of work include regional import/export control and data privacy laws is highly desirable. Fluency in leveraged finance, corporate acquisition finance and lending transactions. English and Mandarin is essential; an additional regional language is strongly preferred. HK/Common Law/PRC-qualified candidates with 4 years’ PQE in leveraged and acquisition financing with an international law firm are encouraged APACLegalCounsel,IP|7+yrspqe|KualaLumpur REF:13509/AC to apply. Relevant experience gained in the energy, natural resources and infrastructuresectorsishighlydesirable.FluentMandarinskillsareessential. Excellent opportunity for an IP counsel with strong patent experience to take on this regional role of a Fortune 500 company in Kuala Lumpur. You will be responsible Corporate Associate | 3-5 yrs pqe | Hong Kong REF: 13531/AC for providing legal advice and support to its APAC operations on the identification, development and protection of IP assets. You will also be required to manage IP One of the world’s fastest-growing law firms is urgently seeking a disputes in Malaysia and to provide support for global IP disputes. You ideally have mid-level IPO compliance associate to join its thriving Hong Kong a license to practice law in Malaysia or any APAC country with at least 7 years’ team. Candidates must be Hong Kong qualified with experience in relevant PQE, preferably gained in MNCs and law firms. Experience in managing HK IPOs, M&A, regulatory compliance and general corporate work cross-border IP disputes is essential. You must have excellent command of both from an international firm. Solid academics and Mandarin/Chinese written and spoken English and Mandarin. Frequent international travel is required. drafting level language skills are required as well as fluent English. APAC Compliance Counsel | 5+ yrs pqe | Shanghai REF: 13526/AC Asset Finance Associate | NQ-5 yrs pqe | Hong Kong REF: 13520/AC This Fortune 500 MNC is seeking a PRC-qualified lawyer with solid compliance This leading UK law firm is seeking a junior to mid-level PRC-qualified experience to join its Shanghai office, covering its operations in APAC You will primarily lawyer to join its Hong Kong office. You ideally have experience in responsible for implementing the regional compliance program which includes anti- the aviation and/or asset finance along with a general banking and corruption/anti-bribery, antitrust, FCPA, data privacy, gift policies, economic sanctions, finance background. Banking and finance lawyers who are looking to due diligence and compliance training. You ideally have at least 5 years’ PQE in re-focus their experience in the asset finance field are also welcome compliance work at a law firm or an MNC. Fluency in English and Mandarin is essential. to apply. You must have fluent English and native level Mandarin. To find out more about these roles Your privacy and the privacy of others are important. By you supplying us with your personal data, & apply, please contact us at: which includes your CV and/or details of your referees, you have agreed to our collection, use and disclosureofsuchdatatoassistyouinfindingajobnoworinfuture,aswellasformarketingpurposes. T: (852) 2520-1168 You agree that you have obtained appropriate consent to provide to us data from other person(s). E: [email protected] www.hughes-castell.com

The Briefing EVENT REPORT Jakarta In-House Congress Alongside co-hosts Ashurst; Oentoeng Suria & Partners; “Hot topics and great speakers\" Assegaf Hamzah & Partners; Clyde & Co; Dentons Rodyk & – In-House Congress Jakarta delegate Davidson; and Lubis Ganie Surowidjojo, we hosted our twelfth annual In House Congress Jakarta at the JW Marriott Hotel Association (ICCA); Wulandari Setyaningsih, Legal Director, Jakarta on May 11, 2016. Sanofi Group Indonesia; Joel Hogarth, Partner, Ashurst in associa- tion with Oentoeng Suria & Partners; and Mohamed Idwan Ganie, The 190 in attendance were first treated to 'In-House Law- Managing Partner, Lubis Ganie Surowidjojo. yering: uncovering the relationship between Quality, Cost and Value, and their continuingly changing relationship with External Subsequent practice area workshops included 'Cross-border Counsel'. The discussion was led by DA Partners (a law practice Debt Restructuring for Indonesian Companies'; 'Demystifying and member firm of EY global network) Principal Evangelos Islamic Finance'; 'Disruptive Technology & the Law; and 'Dispute Apostolou, a former regional GC himself, and involved thoughts Resolution Internationalised – Arbitration, Litigation and Media- from Reza P. Topobroto, Director of Legal Affairs, PT Micro- tion Part II'. We would like to thank all whose work helped make soft Indonesia/Supervisory Board, Indonesia Corporate Counsel this event a success as well as the Indonesia chapter of the In- House Community for their attendance and support. A special thanks on behalf of the In-House Community™ to all our speakers, which included: Evangelos Apostolou Joel Hogarth Koh Kia Jeng Principal Partner Partner, Litigation & Arbitration DA Partners (a law practice and Ashurst in association with Practice Group member firm of the EY global Oentoeng Suria & Partners Dentons Rodyk & Davidson LLP network) Zacky Zainal Husein Zhulkarnain Abdul Rahim Eko Basyuni Partner Partner, Litigation & Arbitration Partner Assegaf Hamzah & Partners Practice Group Assegaf Hamzah & Partners Dentons Rodyk & Davidson LLP Patrick Dransfield Adil Hussain Wulandari Setyaningsih Publishing Director Asian-mena Partner Legal Director Counsel and Co-Director Clyde & Co Sanofi Group Indonesia In-House Community Herman Jeremiah Reza P. Topobroto Mohamed Idwan Ganie Partner, Litigation & Arbitration Director of Legal Affairs Managing Partner Practice Group PT Microsoft Indonesia/ Supervisory Lubis Ganie Surowidjojo Dentons Rodyk & Davidson LLP Board, Indonesia Corporate Counsel Association (ICCA) 14 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m



The Briefing NEWS HKIAC welcomes new Secretary General Commencing in September 2016, “I am honoured to be Sarah Grimmer Sarah Grimmer will become the appointed Secretary General Hong Kong International Arbitration Cen- The HKIAC is sure to flourish under tre's (HKIAC's) Secretary General. of the HKIAC. Building on her leadership. Through Sarah, the PCA what has been achieved to looks forward to deepening its ties with Grimmer has been working in interna- date, I am excited to lead the Hong Kong.” tional arbitration for over 14 years and has worked on inter-state, investor-state and centre in its provision of international commercial arbitration. Her dispute resolution services experience includes having worked at two and to ensure its continued major arbitral institutions, most recently dynamism and excellence” working for the Permanent Court of Arbi- tration (PCA) since 2006 and serving as extensive experience in international arbi- assistant counsel at the ICC International tration, we are confident that HKIAC will Court of Arbitration and the international continue to improve and bring the highest arbitration group of Shearman & Sterling level of dispute resolution services to our between 2002 and 2006. users” said Theresa Cheng, Chairman of the HKIAC. Commenting on her new job, Grim- mer said, “I am honoured to be appointed Brooks Daly, Deputy Secretary-Gen- Secretary General of the HKIAC. Building eral of the PCA noted that “it is with on what has been achieved to date, I am great pride and some sadness that the excited to lead the centre in its provi- PCA bids farewell to Sarah. She has been sion of dispute resolution services and instrumental to the PCA’s rapid growth to ensure its continued dynamism and and dynamism over the past ten years. excellence.” “Sarah is the ideal fit to lead HKIAC to the next stage of its growth. With her The best opportunities from the region's best recruiters 16 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Opportunities of the Month … Be it a case of wanting to spice things up or break the pattern, every now and then, it's nice to know there's something else. Whether you do so casually or stringently, take a look below to see what the legal sector can offer you. Senior Legal Counsel (Technology) M&A Lawyer PQE: 8-12 yrs, Singapore PQE: 6-8 yrs, Hong Kong A well-established technology company is looking for a senior legal Global investment bank is seeking an M&A Lawyer with 6+ years' PQE to counsel to head its contracts management department. Reporting to provide legal support to their APAC M&A business. The ideal candidate the head of legal, the lawyer will be responsible for implementing and is HK/US/E&W/Commonwealth qualified and has at least 6 years of managing their contacts management system. You will also support major experience in M&A matters. Experience in public takeovers would be an tenders and contracts across the business. The ideal candidate should advantage. The role will include providing legal analysis and advising on issues have experience in managing or setting up contracts management systems related to the M&A business, drafting and reviewing legal documentation as for the company. [Ref.: IHC 13703] well as assisting on internal policies, procedures and controls. Fluent English and Chinese language skills are essential. [Ref.: PBP5956] Contact: Jason Lee Tel: (65) 6557 4158 Consultant: Jenny Law Email: [email protected] Tel: 2537 7448 Senior Legal Counsel, Payments Email: [email protected] PQE: 7-15 yrs, Singapore VP/Director/Derivatives Lawyer, A global brand name is looking to hire a senior counsel. It is a primary Investment Banking requirement for the candidate to have the ability to research and analyse laws and regulations in APAC which regulate payments. Experience PQE: 8+ yrs, Singapore/Hong Kong dealing with regulators in the region will be highly valued. Only candidates with consumer finance or direct payments experience will be considered. A top tier global investment banking institution with a sizeable legal team Mandarin language is preferred. JLegal Pte Ltd Employment Agency worldwide, in line with their growth plan in the APAC region, is looking Licence No: 08C4187. Benedict Joseph, EA Registration No: R1324716 for experienced derivatives lawyers to join their team in Singapore and [Ref.: JGB – IS 1649] provide support for the APAC division. In this role you will provide legal advice on the full spectrum of APAC derivatives business, liaise with and Contact: Benedict Joseph manage external counsels and act as a legal adviser on certain regional and Tel: (65) 6818 9707 global committees. The ideal candidate for the director level role is a CW qualified lawyer, with a minimum of 8 years' relevant experience working Email: [email protected] in a top tier banking institution or a Magic Circle/Silver Circle/Tier one US law firm. For this role you will need to demonstrate in-depth knowledge Senior Legal Counsel, Technology & Outsourcing of structured products and good understanding of the financial regulatory PQE: 4-8 yrs, Singapore matters across APAC.Candidates with less years' PQE will be considered for a VP level role within the same team. Overseas candidates are welcome Exceptional opportunity for a senior IT/outsourcing lawyer to join the to apply. [Ref.: R/042304] regional team of a global technology multinational. The company is a global player in the IT, consulting and outsourcing services industry, and Contact: Claudia Dumitru Singapore is a key hub as their regional APAC headquarters. Tel: 6407 1205 The successful candidates will play a key role in drafting, reviewing, Email: [email protected] negotiating and structuring a variety of commercial agreements – from complex global partnerships to technology licence and reseller Legal Director agreements, data sharing agreements and vendor contracts. You will PQE: 10+ yrs, Shanghai advise on regional laws and regulations covering IT, intellectual property and privacy. Excellent opportunity for a senior lawyer with at least 5 years’ team management experience to head up the global legal team of a leading The ideal candidate has a strong knowledge of technology law and Hong Kong-listed medical group. Based in Shanghai, you will be responsible 4-8 years of drafting and negotiating experience, with a wide variety for covering a wide range of legal issues including risk management, of technology transactions, in particular outsourcing and professional compliance programmes, business activities, investment projects, IP and services agreements. Candidates with prior experience in IP due diligence dispute resolution work. You ideally are a PRC qualified lawyer with work in M&A and financing transactions or other complex procurement overseas experience/education. Knowledge of commercial corporate law projects are preferred. and excellent people management skills are essential. Fluency in English and Mandarin is mandatory. [Ref.: 13536/AC] Candidates who are adaptable, energetic and have strong leadership capabilities and prior secondment and/or in-house experience are Contact: Carol Yuan preferred. On offer is a dynamic and fast-paced environment that Tel: (82) 21 2206 1200 encourages development opportunities.[Ref.: 203611] Email: [email protected] Contact: Theresa Pang Tel: (65) 64200517 Email: [email protected] Volume 13 Issue 10, 2016 17

Jonathan Fairtlough Managing Director Protect your systems: five cyber-attack realities to guide you You know you’re a target. You’ve been told multiple times by have end point threat monitoring in place can expose you to: various sources that cyber security is necessary to protect your • an attack that lasts longer and is harder to catch company from attacks. • a deeper attack resulting in more data loss So, you decide to be proactive in your security approach and • no early warning signs to prevent an attack make risk-based decisions. And yet, a Google search on the sub- • a type of attack with costly repercussions ject uncovers hundreds of checklists, guidelines and products – all • significant legal and regulatory liability of which claim to solve a different cyber security concern or problem. The risks seem endless, and the solutions impossible to Data loss is a symptom of a bigger problem – investigate wade through. It might seem a daunting task, but here are five The fact that your company has lost data is the symptom of a larger cyber-attack realities that provide a guide to your next step in problem, not the disease itself, and it is important to find the source managing this risk. of the problem. It could be an external hack, employee malfea- sance or poor internal controls allowing for negligence. Data loss There is no turnkey cyber security solution requires an investigation, not just notification regarding the issue There is no one off-the-shelf solution that to affected customers, where this is will protect all of your systems from differ- “The fact that your company required. You need an investigation not ent types of cyber attacks. Cyber security has lost data is the symptom of only to find the source, but also to explain requires an understanding of what your to the regulator (where required) how you company needs to protect, investing the a larger problem, not fixed the problem. time to protect it properly and maintaining the disease itself, and it is The attacker often stays in your system security as an ongoing process. The key to success is to balance the impact and cost of important to find the source after the attack security with the actual risk posed. Kroll of the problem” Always assume that the attacker is still in calls this balancing process ‘incident risk your system. The goal of online attackers is management’. Start off with an assessment to stay within a system for as long as they of the risks in your existing systems and can. If they are driven out, they try to come focus your security accordingly. right back in, often with user accounts they had set up on the system. Attacked networks need to be monitored until all users and Secure your systems from both outside and inside attacks processes are validated. End point threat monitoring is a key part We often see companies build strong IT protections against system of that solution. attacks, but still get breached with some inside help. A good cyber attacker, when faced with defences, does not try to break through Cyber fatigue is real, but not an excuse for inaction them. Instead, the attacker examines your security to uncover It’s easy to become fatigued at the thought of cyber security. With ways to walk right in. The lesson here is that you need to use all so many things to do and learn, you can lose sight of the benefits. tools to safeguard against cyber attacks, with the most important If the process does become too overwhelming, remember this: and must-have safeguards being: each step your company takes to protect itself makes it that much • strong external security more difficult for attackers, who will move on to an easier target • in-place internal monitoring systems – one without as much security in place. Don’t worry about per- fection. Rather, make sure you are hitting the standards, protect- Kroll has worked with numerous companies that invested in prod- ing key systems and planning to learn and grow. The more ucts to block continuous attacks. What we have noted, however, is attempts you make at cyber security, the better your chances are an overall lack of investment in internal monitoring of systems, or at staying protected. what we call ‘end point threat monitoring’. This monitoring involves using software to record user activities within a network [email protected] www.kroll.com and flag any activity that may be indicative of an attack. Failure to 18 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Illustration: www.oweiss.com Cyber Crime SPECIAL REPORT Being ‘Verbal’ with cyber crime and data protection Looking at jurisdictions with both longstanding and emerging cyber crime and data privacy laws, we see why arriving late to the party can sometimes be an advantage. — 20 — Combating the ‘CEO Fraud’ scam How to spot it, and how to get your money back In his article, Richard Hudson, Partner, Litigation & Dispute Resolution at Deacons details the ‘CEO Fraud’ phishing scam and explains measures companies can take to both reduce the risk and mitigate after the fact. — 25 — Electronic growing pains Cyber security and data protection in the People’s Republic of China Clyde & Co’s Richard Bell looks at China’s approach to cyber security and data protection, noting that China, unlike Singapore and Hong Kong, does not currently have a stand-alone governing law. — 28 —

SPECIAL REPORT CYBER CRIME Being ‘Verbal’ with cyber crime and data protection Looking at jurisdictions with both longstanding and emerging cyber crime and data privacy laws, we see why arriving late to the party can sometimes be an advantage. When technology enabled for download of music and years, though, a more robust legal framework regarding it is more recently with regards to 3D printing, IP leg- inevitable. I expect that an almost global notification requirement islation had to catch up with innovation. Technology will slowly come in, driven by US, EU and Australia.” has struck again – a ‘Usual Suspect’ if you will – this time forcing law to accommodate for modernisation in relation to cyber crime Giving his overall thoughts, Yang Xun, Of Counsel in and data privacy. Simmons & Simmons’ Shanghai office remarked “Obviously, the EU leads the data protection legislations. The well accepted data The topic has been tackled already in both the EU and US as protection principles, being information, consent, necessity and well in as numerous jurisdictions throughout Asia, and though security, arise from the EU Data Protection Directive. The newly starting late may be seen as a disadvantage, jurisdictions like promulgated EU Data Protection Regulation, which harmonises Myanmar can view those whose technological status already data protection legislations in European countries and further demands legislation as case studies, whilst their own laws and strengthens the protection especially in the area of implementing cyber industry progress simultaneously. data protection policies, created a model for other jurisdictions to learn from.” On the approaches already taken in both the EU and the US, as well as that of developing Asia, Jonathan Fairtlough, Managing On this, he noted that Hong Kong and Singapore follow the Director at Kroll, noted that “In the US, piracy violations are EU model closely, which “pays more attention to personal pri- punished by lawsuit, either regulatory action or private class vacy, whilst the US pays more attention to national security and action. Breach notification laws provide the impetus for protec- federal power, of which the US Patriot Act is a good example”. tion, as the costs of failure to protect data can be substantial. Privacy is enforced by lawsuit, punished by cost. The US “Similar to the US, China has a strong central government approch requires notice, which has raised the security level of US and historically, China pays less attention to privacy but much companies and US data, but also raised their costs. “All companies should work to “In the EU, regulation and fines are the primary protectors, prevent hacks and it is a modern with individual actions rare. Regulatory actions such as the ‘right GC’s duty to be knowledgeable to be forgotten’ are examples of this approach to privacy – a about the basic principles of data desire by the government to shape the way in which the data can decturity; doing otherwise in be collected and used. This type of approach can blur the lines the Internet age is tantamount between the company and the regulator. Take an example: to sticking your head in Google. Since the right to be forgotten has been implemented, the sand” Google has become a de facto privacy arbiter – its process to remove data is used to decide hundreds of thousands of mini Ronald Yu privacy claims. “Asia is still developing its response to privacy. Regulatory action is common, with limited individual rights of action. In Singapore and Hong Kong, regulators must be notified early. This can have a significant effect in Asia because of the reputa- tion effect. The benefit Asia has is that it can learn from other jurisdictions’ approaches. As this issue will grow over the next 10 20 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Being ‘Verbal’ with cyber crime and data protection By Chris Thomson more to ‘social order’. As a result, even in the data protection ciples of data decturity; doing otherwise in the Internet age is law, we can see a strong ‘footprint’ of government interference. tantamount to sticking your head in the sand. For example, telecommunications service providers are required to verify users’ real identity before providing the relevant ser- “But in doing so, one must not become too mired in the tech- vices so that if the user misuses the telecoms service to infringe nical details – not only because technical worries are often others’ privacy, the government (or court) can step in (proac- ephemeral in that today’s technical headache is often soon tively or upon initiation of litigations) to stop the infringement. replaced by newer threats – but because IT hacks can occur with- For another example, telecoms business operators have the duty out technological wizardry through ‘social engineering’ and to report to the government of significant data leakage, which is because one must keep the bigger picture in mind. still a controversial issue in the EU”, Xun said. “Obviously one solution to preventing Internet-based hacks Speaking on perhaps Asia’s least developed jurisdiction in is to take one’s systems completely offline, but that is impractical terms of privacy law: Myanmar, Kowit Somwaiya, Managing in today’s world. And one could try to build an absolutely bul- Partner at LawPlus, noted that at this time, it’s impossible to say letproof system by spending extraordinary sums. The solution is when Myanmar’s technology and legislation will catch up to that to find a happy middle ground – a system that offers effective of the rest of the world. protection without bankrupting the company.” Somwaiya also stated that Myanmar’s recent regime change A jurisdiction that has notably succeeded recently with will lead to growth in the country’s IT sector, and that “In the five regards to cyber security is Vietnam, where a bank recently foiled decades of military rule that Myanmar endured, there was no a US$1 million cyber heist. Months prior, in February, hackers right of privacy and data protection in the country”. He continued successfully stole US$81 million from Bangladesh Bank at the “The 2008 Constitution of Myanmar provides certain privacy New York Federal Reserve using fraudulent messages – the same protection to be in line with political reform. Section 357 of the method that failed in this case. Most of the money that was stolen Constitution of the Republic of the Union of Myanmar reads: from Bangladesh Bank is still missing. “The Union shall protect the privacy and security of home, prop- erty, correspondence and other communications of citizens under Giving his thoughts, Sesto E. Vecchi, Vietnam-based Partner the law subject to the provisions of this Constitution”.” at Russin & Vecchi noted “Data privacy...requires awareness and visible commitment up and down the management chain so that Conversely, “South Korea maintains some of the strictest staff realise that care is important. It may mean: electronically data privacy and protection regulations in the world”, as was mandated change of individual passwords, say, every three pointed out by Nicholas Park, Co-managing Partner at Lee months; outside review of electronic security; or presentations International IP & Law Group, who continued “I believe this in-house on how to protect data, recognise scams etc.” stems from the fact that there are many high-tech Korean compa- nies including Samsung, LG, Naver, SK and Daum-Kakao that The difference between the two, as Vecchi pointed out, was are actively involved in industries involving data privacy such as the ability of staff to recognise scams. But even big companies in Internet of Things (IoT), the Internet, social media, video games and entertainment”. “There is no question that having preventative systems in place is Giving further background on South Korea’s approach to this almost certainly going to be many, topic, Wonil Kim, Partner at Yoon & Yang remarked “The pri- many times less expensive than mary source of the law governing personal information protection waiting for a crisis to emerge. The in South Korea is the Personal Information Protection Act (PIPA) damage caused by an attack, even if which has been implemented since 2011. The PIPA sets out the it is not directly linked to actual ground rules which apply generally to personal information pro- theft or fraud, could have a tection. In addition to the PIPA, there also exist specific laws that devastating effect on a govern personal information protection in certain sectors and company’s reputation, and industries. For instance, the Promotion of Information and of course, reputation is Communications Network Utilisation and Information Protection directly linked to the value of Act (Communications Network Act) includes personal informa- the company” tion protection provisions applicable in relation to telecommuni- cations services; the Use and Protection of Credit Information Act Richard Dailly contains provisions to protect personal information in the context of financial services; and the Medical Services Act governs per- sonal information protection in healthcare sectors.” Speaking from a different perspective, Ronald Yu, GC at Gilkron (and Lecturer, Faculty of Law, The University of Hong Kong) said “All companies should work to prevent hacks and it is a modern GC’s duty to be knowledgeable about the basic prin- Volume 13 Issue 10, 2016 21

SPECIAL REPORT CYBER CRIME established jurisdictions are by no means immune to hacks, as “Training is not just reading the policies was reported on May 12, 2016, when TalkTalk – a telecommuni- to the employees. Life examples are cations provider in England – saw its profits halve when com- more effective to facilitate employees to pared to those of the previous year thanks mainly to a cyber understand the policies and to bring the attack which cost the company ₤42 million. policies into life. It is also advisable to encourage employees to speak out their Myanmar’s telecommunications sector too recently experi- questions and concerns about the enced something similar: “There have been a few recent exam- implementation policy ... . Employees ples of hacks in Myanmar which have resulted in reputation risk. are more willing to accept and follow A recent high profile case (now dismissed) involved an employee the policies when their of a mobule phone operator company giving unauthorised access questions and to communications data to a friend who then accessed a cus- concerns are tomer’s call log. The employee was fired and the company adequately addressed” pressed charges against him with the regional police.” said Somwaiya. Yang Xun Giving his advice, Xun agreed with Benjamin Franklin’s business. For example, the policy may need to reflect the proper view that “An ounce of prevention is worth a pound of cure”, use of WeChat in China and reflect the necessity to use proxy stating that “With the increasingly wide use of and the increasing servers to visit overseas websites. We have come across a number reliance on information technology in business, cyber security of policies prepared by the headquarters in a foreign country and becomes more and more important. In my view, having a well- in a foreign language. These policies are not helpful for protect- developed plan in advance is more more important than actions ing cyber security and for preventing accidents because employ- after a cyber security accident occurs.” ees may have difficulties understanding the policies and these policies are difficult to implement in practice.” Deliberating more specifically, and demonstrating similari- ties between the Chinese approach and that of South Korea, Xun Also discussing prevention plans, Kroll’s Managing Director went on to say “In the finance sector, under the laws of major Richard Dailly stressed that “There is no question that having Asia jurisdictions such as mainland China, Hong Kong and preventative systems in place is almost certainly going to be Singapore, banks and other financial institutions are required to many, many times less expensive than waiting for a crisis to adopt and implement an information security policy and contin- emerge. The damage caused by an attack, even if it is not directly gency policy. linked to actual theft or fraud, could have a devastating effect on a company’s reputation, and of course, reputation is directly “In other business sectors, although it is not a statutory linked to the value of the company. The cost of an attack is going requirement to have a prevention plan, a well-prepared and to include investigators, lawyers, PR consultants, potentially strictly observed prevention plan is still highly advisable. This is engineers and security advisers, just as an initial crisis response. because a company which plans in advance and plans well will Ensuring that all a company’s confidential material is secure, and unlikely suffer from cyber security accidents and even if a cyber handled properly, therefore is critical. This may not just be a security accident happens, it is more ready to stop and remedy question of systems and software, but given that many attacks are the losses from the accident. socially engineered, staff need to be aware that how they behave and what they put in the public domain, for instance on social “Moreover, it is important to note that a prevention plan or a media, may inadvertently give an attacker a helping hand.” cyber security policy needs to be localised and adapted to fit the Giving similar thoughts, Yu explained “With regards to com- “Privacy is an essential part pliance issues, if a company has a good policy of IT governance, of a modern digital then it is less likely to have data privacy issues if good data pri- economy. Privacy is not a vacy policies are integrated into its overall framework of IT luxury, nor a selfish right governance and it studiously adheres to as well as periodically to keep secrets. Rather, it is a protection that allows for free choice” Jonathan Fairtlough 22 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Being ‘Verbal’ with cyber crime and data protection By Chris Thomson reviews and improves on these policies”. “Generally, companies that have On privacy, Dailly’s colleague Fairtlough concluded that established and implemented up-to-date and effective data privacy and protection “Privacy is an essential part of a modern digital economy. programmes are much better positioned Privacy is not a luxury, nor a selfish right to keep secrets. Rather, not only to prevent possible incidents, it is a protection that allows for free choice. Freedom to choose but to recover from any accidents that is what drives modern markets and economies. The freedom to may occur. In the event of an incident, browse, to read, to try something new has created the modern based on our experience, courts also digital economy. The ability of the market to innovate can be generally tend to show leniency on disrupted when people are afraid to use technology for fear of companies that can being monitored, of having what they privately share and view prove that they have being used against them. proactively established and maintained “Yet the act of using the Internet gives up much of what was compliance traditionally private. Much of what we get ‘for free’ is paid for programmes” with data about our use habits. We exchange data about our read- ing choices, browsing history, our interests in exchange for Nicholas Park access to free applications and content. We have become accus- tomed to entertainment on demand from multiple sources. We pay for this with some of our privacy. We give up privacy by using technology.” Xun too weighed in on the issue of privacy: “Privacy issues involving employee personal data often appears when the com- pany is investing a breach of information security policy or investing a possible compliance breach. Especially, we have been instructed to assist in investigations when the company requested “A new company entering the for inspection of employees’ personal device and the employee Myanmar market should invest time declined the request on a personal privacy ground.” and money to: understand contextual risks in the context of Myanmar’s He went on to later state “it is important to prepare and adapt history and the government practice; a company’s policies to fit for the local business. From a substan- use the company procedures to plug tive aspect, the company policy must be prepared by taking into gaps in the Myanmar legal framework; account specific local issues. From a procedural aspect, the com- develop and implement appropriate pany should consider consulting employees during the prepara- policies and procedures to safeguard tion and adaptation of company policy because employees who data privacy; and ensure that work on the frontier have the first-hand information about the its terms and issues they expect the company policy to address.” conditions or privacy policies Xun also believes “it is advisable to give employees some are publically training about the company policies. Training is not just reading available” the policies to the employees. Life examples are more effective to facilitate employees to understand the policies and to bring the Kowit Somwaiya policies into life. It is also advisable to encourage employees to speak out their questions and concerns about the implementation policy, for example, how to manage customers’ requests on trans- ferring business information on WeChat platform and how to distinguish reasonable hospitality from bribery. Employees are more willing to accept and follow the policies when their ques- tions and concerns are adequately addressed.” All of this advice should be noted not just by those currently overcoming these hurdles, but also by those in jurisdictions like Myanmar where “currently there are no separate privacy laws”, yet Somwaiya feels it is prudent to inform that “In practice, the private sector and the government are transitioning from storing information in filing cabinets to electronic databases, Myanmar Volume 13 Issue 10, 2016 23

SPECIAL REPORT CYBER CRIME companies may be finding that data protection requirements are “With the introduction and now necessary if they are involved in the cross-border exchange advancement of new technologies, of commerce and data. personal information will be collected, provided or otherwise “Although the constitution declares that privacy will be pro- processed more extensively. tected under the law, currently there are no separate privacy laws Accordingly, infringement of in Myanmar. There is no legal framework on data protection or personal information will also data privacy. likely increase and grow in scale” “A new company entering the Myanmar market should invest time and money to: understand contextual risks in the context of Wonil Kim Myanmar’s history and the government practice; use the com- pany procedures to plug gaps in the Myanmar legal framework; information will be collected, provided or otherwise processed develop and implement appropriate policies and procedures to more extensively. Accordingly, infringement of personal infor- safeguard data privacy; and ensure that its terms and conditions mation will also likely increase and grow in scale.” However, he or privacy policies are publically available.” also points out that “Taking into account the market potential of big data, over-regulation should be avoided lest it should bring On data privacy in China, Xun explained “The public privacy chilling effects and impede growth in relevant industries”. awareness is improving. In response to such improvement, China has published and begun to implement a series of data protection In Dailly’s mind, “Tone from the top is the most important legislations since 2013. Now, generally speaking, personal data is issue. Companies need to take a zero tolerance attitude towards protected in both commercial and employment scenarios. compliance and anti-corruption issues. Online training is invalu- able for companies, who are spread around the globe, but it is “However, implementation is a big problem in China...his- also important that compliance and risk executives, and GCs, are torically, China does not have a tradition of respecting privacy. on hand, in businesses operating in emerging markets. They need There are a lot of data leakages and, although the government to be seen. But to get local cooperation and compliance, it is penalised a lot of companies for non-compliance of data protec- equally important that a local voice believes in, and buys in to tion rules, at this stage, it focusses on enforcing the data protec- educating local and non-legal staff with the tone from the top tion requirements against serious breaches, such as wilful mantra. So, for instance, an effective compliance regime in an disclosure of personal data and careless management of data risks emerging market has to partially rely on the buy in from trusted (especially during the process of data transfer or commissioned local staff on the ground.” collection or processing of personal data). According to Yu, “Companies must regularly back up their “China’s government has brought the data protection issue data and stay abreast of the latest threats and not just on their onto a national security level. This, on one hand, reflects the servers but also mobile and other devices that connect to their government’s attention on protecting personal data; and on the systems. Investments in good data secutiry are good investments other, suggests that the government shift the focus more onto because good IT safely not only protects users but also a com- public interest in terms of data protection. We speculate that the pany’s valuable IP – or to put it another way, if you think data government will impose restrictions on cross-border data transfer security is expensive, consider the cost of a loss of trade secrets and issue rules on processing personal data, especially in the and pending patent applications.” finance business sector.” In hindsight, it’s obvious that the law needs to be more Not only does teaching about compliance help avoid prob- advanced than the technology it relates to (and for film fans, that lems arising, but, as Park noted, Generally, companies that have Verbal was Keyser Soze). Given Asia, and to a larger extent established and implemented up-to-date and effective data pri- Myanmar’s position – the ability to see the consequences of how vacy and protection programmes are much better positioned not others have approached these issues – they have the chance to only to prevent possible incidents, but to recover from any acci- watch the whole movie before realising too late the antagonist in dents that may occur. In the event of an incident, based on our cyber crime and data privacy. As for the rest, they must hope that experience, courts also generally tend to show leniency on com- their legislation (or police) eventually catches up to the technol- panies that can prove that they have proactively established and ogy (Verbal) that always seems to be one step ahead. maintained compliance programmes.” Park went on to say “We generally recommend that compa- nies handling sensitive data including personal information or financial information designate a person or team of persons as a data privacy and protection manager or team. By working with a law firm, the manager or team can keep up-to-date on the rele- vant regulations and implement the best programme for their organisation including education for relevant staff and security.” As a result, companies should heed Kim’s warning that “With the introduction and advancement of new technologies, personal 24 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Combating the ‘CEO Fraud’ scam By Richard Hudson, Deacons Combating the ‘CEO Fraud’ scam How to spot it, and how to get your money back In this article, Richard Hudson, Partner, Litigation & Dispute Resolution at Deacons details the ‘CEO Fraud’ phishing scam and explains measures companies can take to both reduce the risk and mitigate after the fact. Corporate fraud is nothing new, but the increased use 1. An employee in the company’s account department receives of IT in the corporate environment over the last few an email which appears to have been sent by a CEO or another decades, particularly where financial transactions are higher level employee of the company. In reality, the email concerned, has been accompanied by the rise of a new type of has been sent by the fraudsters, with the CEO’s email address corporate fraud: ‘phishing’ scams, where fraudsters use emails either having been hacked or the email address being similar, and phone calls to attempt to acquire sensitive information or steal but not identical, to the high level employee’s email address money from businesses. and with the difference not being immediately obvious to the recipient. Such emails are not routinely picked up by compa- There are various types of phishing scams in operation around nies’ cyber-attack prevention systems. the world, but particularly prevalent at this time in the author’s experience is the ‘CEO Fraud’ phishing scam. The purpose of this 2. The fraudulent email requests that funds be transferred imme- article is to examine how this scam works, make suggestions as to diately to an account in a different jurisdiction as part of a what might be done to combat it, and look at the steps that should secret project that is being carried out by the company. The be employed to recover stolen money if a company falls victim to recipient is told not to tell anyone else about the transaction. this scam. 3. In some cases, the emails are accompanied by telephone calls The FBI’s Internet Crime Centre estimates that around 7,000 from individuals impersonating the sender of the email, companies were defrauded of more than US$740 million over the urging that the transaction be carried out promptly and last two years as a result of CEO Fraud, although it is possible that reminding the recipient of the email of the need for secrecy. this figure is much higher, given that many companies are reluc- tant to admit being defrauded in this way (see The Bogus Boss 4. Once the email is acknowledged by the recipient, the fraudster Emails Scam Costing Firms Millions, bbc.com, 8 January 2016). will often send further emails checking on the status of the It is believed that the CEO Fraud was invented by Gilbert Chikli, transaction and, if the money is transferred as requested, the a French-Israeli national who was sentenced to seven years’ fraudster may send instructions for further transfers to be car- imprisonment in absentia in France in 2015 having defrauded ried out. The author has seen cases where up to six transfers more than 30 banks and companies out of up to £€9.7 million have been processed by the same company on the basis of during 2005 and 2006 by using the CEO Fraud. Although Mr such emails, followed up by phone calls. Chikli - believed to be based in Israel, out of reach of the French justice system - may now be retired, regrettably, many other 5. Companies in many different jurisdictions have been targeted criminal enterprises seem to have noted Mr Chikli’s success and by the CEO Fraud. The author has acted for clients based in there appear to be a number of criminals or criminal gangs still four different continents and in over 20 different countries operating the CEO Fraud, causing losses to companies worldwide who have fallen victim to this fraud, although it seems to be on a daily basis. particularly prevalent in North America and continental Europe. How does the CEO Fraud work? In the experience of the author, the CEO Fraud is perpetrated 6. The funds are typically transferred between several different against companies in the following way: bank accounts to make recovery difficult. The author has encountered many examples of funds being transferred first to accounts held at banks located in Hong Kong, from which they are transferred to banks located in the PRC, where the Volume 13 Issue 10, 2016 25

SPECIAL REPORT CYBER CRIME money is apparently withdrawn as cash. The accounts in requesting the transfer of monies can significantly reduce the Hong Kong are typically held by recently incorporated Hong chances of becoming a victim of the CEO Fraud. Kong or offshore companies. The directors and shareholders of these companies are either other corporate entities or PRC Recovering stolen funds – who do you call? nationals of whom no trace can ever be found. A company that discovers that it has fallen victim to the CEO 7. Whilst companies of all sizes and all types can fall victim to Fraud has no time to waste: as explained above, the stolen money the CEO Fraud, in the author’s experience a company is more will likely not rest long in the account to which it has been trans- likely to become a victim where: ferred, and if action is not taken quickly is likely to be transferred a. A senior employee has the power to order the transfer of to an account located in a jurisdiction where it is difficult to or freeze or recover stolen monies. funds without needing to involve a second corporate officer; and Applying for and obtaining a Mareva injunction or similar b. The company is small enough that it does not have exten- relief to freeze the stolen monies is one way of trying to ensure sive rules in place regulating the transfer of funds, but at that stolen money is frozen whilst proceedings are brought to the same time is large enough that the accounts depart- recover it, but even if your lawyers work fast, they may be too ment staff do not know the senior staff personally, and late, as the use of electronic banking allows money to be moved therefore is more likely to be fooled when a senior staff to another account faster than an injunction can be obtained to member is impersonated on the telephone. freeze the account. Accordingly, there are other steps that can and Whilst it can safely be assumed that the CEO Fraud is not always should be taken as soon as possible in order to minimise the risk successful, and probably fails more often than not, the potential that stolen money is moved elsewhere: rewards can be enormous. Sums stolen from a particular company 1. Call the banks: effort should be made to contact both the can run into the millions of US dollars. company’s bank and the recipient bank to obtain information Prevention is better than cure about the status of the transfer and the whereabouts of the Whilst no system is completely criminal–proof, companies can monies. It is possible that whilst instructions have been given defend against the CEO Fraud by simply tightening their existing for a transfer, it has not been processed yet and can be procedures or by ensuring that those procedures are always recalled. Further, the company’s bank can be asked to lobby adhered to. For example, instituting a procedure whereby two the recipient bank and ask them to hold the money whilst individuals must always authorise any transfer of funds out of the other measures are taken to freeze it. company over a nominal amount should drastically reduce the Recipient banks are placed in a difficult situation by the chances of the CEO Fraud being carried out successfully as a CEO Fraud: on the one hand, no bank likes to be used as part second person will have to critically examine the transaction in of a fraudulent scheme, and they will co-operate with the question. Further, simple due diligence carried out by accounting authorities to prevent fraud. On the other hand, banks have staff can minimise the risk of the fraud succeeding – a request for contractual duties to their customers, which usually include an invoice in support of a transaction might defeat the fraud. Even the duty to honour any instructions to transfer funds out of a where a fake invoice is provided (as is sometimes the case at the bank account. Given also that it can take time to communicate outset), simple internet searches may reveal that a transaction is the details of a fraud to the right person in a large banking illegitimate by, for example, showing that the company to which organisation and to persuade them to take action, it may be the money is to be transferred does not appear to operate any busi- that a recipient bank can do, or will do, nothing to stop further ness or is using an address which does not exist. Even double transfers of the monies. checking the accuracy of the email address of the senior employee “Whilst no system is completely criminal–proof, companies can defend against the CEO Fraud by simply tightening their existing procedures or by ensuring that those procedures are always adhered to” Richard Hudson 26 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Combating the ‘CEO Fraud’ scam By Richard Hudson, Deacons One possible solution is to point out to the bank any 4. Call your insurers: some (but not all) companies have insur- potential criminal consequences of transferring funds which ance policies which will allow them to make claims to recoup they know or suspect are the proceeds of crime: in many juris- losses suffered by way of a CEO Fraud. These policies should dictions it is a criminal offence to deal with such funds (for be examined to see whether a claim can be made. Insurance example, Section 25 of the Organised and Serious Crimes companies can also provide vital short term assistance in rela- Ordinance criminalises such conduct in Hong Kong). A letter tion to the recovery of funds, as they may know from previous to a bank that sets out details of the fraud, attaches all relevant experience how to ensure that money can be frozen at short paperwork and points out the potential criminal consequences notice or have preferred lawyers in a particular jurisdiction for moving the funds may make a bank pause before honour- which the company can engage. ing transfer instructions received from a fraudster, and buy time to freeze the money by other methods. Recovering stolen funds via civil procedure If a company is able to move fast enough to ensure that funds are 2. Call the police: efforts should be made to contact the police frozen in a particular bank account, work can begin to recover the in both the company’s home jurisdiction and the jurisdiction monies. This involves making a claim against the recipient com- to which the money has been transferred. Whilst the company pany for money had and received, or the local equivalent. In the will likely be able to bring civil proceedings to recover stolen author’s experience, such proceedings are rarely defended – as funds, it should not be forgotten that they have been the vic- anyone bold enough to act for the defendant is likely to face arrest tims of a crime, and the police may well be able to provide – and the money can usually be recovered via a garnishee order useful assistance. For example, the police may have powers to after default judgment is obtained. freeze a bank account much more quickly than if an injunction were obtained via civil proceedings (this can be achieved in Conclusion Hong Kong via the ‘letter of no consent’ procedure), and it is The CEO Fraud has caused significant damage to companies possible that the police may assist in recovering stolen funds worldwide in recent years, but it can be prevented, or money can or even carry out the recovery process themselves. be recovered – the keys are to apply accounts procedures rigor- ously, and to act fast if you become a victim. 3. Call your lawyers: in addition to bringing proceedings to recover stolen funds or an application for injunctive relief to [email protected] freeze the funds in the interim, lawyers can provide vital prac- www.deacons.com.hk tical assistance during the recovery process. For example, in the author’s experience, it is easier to obtain prompt coopera- tion from the police if a face to face report of the crime is made rather than dealing with the matter over the phone or via email: if the company has no presence in the jurisdiction to which the money has been transferred, local lawyers can make such a report on their behalf. Local lawyers may also be able to provide valuable advice in relation to the most effi- cient way to deal with banks who have received stolen funds. In our next issue… Along with the hot topics, we’ll be giving you a look at our recent In-House Community awards ceremony, held in Hong Kong on May 26. We’ll also feature a Q&A with Asia’s “father of arbitration” in The thing about ... Neil Kaplan. If you would like to contribute to our Special Report, or in another area, please contact Rahul Prakash at: [email protected] Volume 13 Issue 10, 2016 27

SPECIAL REPORT CYBER CRIME Electronic growing pains Cyber security and data protection in the People’s Republic of China Clyde & Co’s Richard Bell looks at China’s approach to cyber security and data protection, noting that China, unlike Singapore and Hong Kong, does not currently have a stand-alone governing law. Introduction general principle on protecting the freedom and privacy of cor- The protection of data, whether it be personal information or respondence. While the constitution does not provide a cause of trade secrets, and the vulnerability of that data to misuse for action in and of itself, the Tort Law of China gives individuals commercial gain are issues that governments all around the whose civil rights and interests have been infringed the right to world grapple with. China is no exception, and with good make a claim against the infringing party. Such civil rights and reason. At the close of 2015, China had over 680 million active interests include, among other things, the right to privacy. internet users and online retail transactions of over RMB3877.3 billion. By 2020, China’s e-commerce market is predicted to be The state may also bring an action under the Criminal Law, larger than those of the US, the UK, Japan, Germany, and France whereby there are various offences that relate to purchasing, sell- combined1. ing or otherwise acquiring personal information of citizens. With the huge growth in internet subscribers and e-commerce The state also imposes privacy of information through the in China, data protection and cyber security have become increas- Resident ID Card Law, which requires businesses that collect ingly important. In February of this year it was reported that identifying information of citizens contained on identity cards to Taobao, China’s largest online retailer, was the victim of a cyber keep such information confidential. attack during which hackers successfully compromised more than 20 million user accounts linked with the site. This is just one high The Decision on Strengthening Network Information profile example of the many data protection and cyber security Protection (the Act) provides more specific regulations on the col- issues that have arisen in China in recent years. lection and use of the personal data of citizens with companies subject to a range of penalties for failing to comply. In addition, In this article we look at the current state of the law in China the Act gives citizens a right to request their information to be in relation to data protection and cyber security. We also look at deleted and provides a private cause of action for an infringement the future of data protection and cyber security law and discuss of their rights pursuant to the Act. proposed new laws. We then set out ten key questions companies operating in China should ask when considering their data storage Industry specific requirements and e-commerce policies. China has enacted a number of industry-specific regulations that provide additional rules. The most relevant of these regulations Data protection laws in China is the Consumer Rights Law, which imposes obligations on busi- China, unlike other Asia Pacific states such as Singapore and Hong nesses in the collection and handling of consumers’ personal Kong, does not currently have a stand-alone data protection or information, the key requirement being that consumers’ personal cyber security law. Instead, the rules around data protection and information cannot be collected without their consent. There cyber security are fragmented across multiple laws and regula- also exists a significant range of industry-specific regulations tions, with oversight typically left to industry-specific regulators. within the telecommunication, banking, and healthcare sectors. General law requirements The Guidelines At the broadest level, data protection in China is afforded to all In 2013, in response to rapid growth in the use of data and the citizens through the Constitution of China which contains a Internet, the government enacted the Information Security Information Guidance on Protection of Personal Information of 28 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Electronic growing pains: Cyber security and data protection in the PRC By Richard Bell, Clyde & Co Public and Commercial Service Information (the Guidelines). The Ten key questions Guidelines are a set of non-binding guidelines that apply to all private entities and are designed to protect the personal informa- Taking into account the regulatory regime in China, we set out tion of individuals. The Guidelines provide guidance on the col- below ten key questions companies operating in China should lection, processing, transferring and deletion of personal ask themselves when considering data protection and cyber information; how computer networks that handle personal infor- security issues: mation should be maintained; and the appropriate responses to 1. Are you responsible for the protection of personal information? take when information has been mishandled. Chinese regulators have chosen to place the responsibility for While the Guidelines are non-binding, they are significant in data protection on the businesses that collect this data. Under that they are an amalgamation of current regulations and represent the Guidelines, businesses that collect, process and retain the best practice within China. personal information of individuals have a positive duty to provide proper safeguards and protection for this information. Cyber security laws In China This includes auditing internal security systems and having In enacting regulations, China has tended to treat cyber security emergency plans in place in the event that data is leaked, lost, as a distinct issue to that of data protection. Current laws that do damaged, tampered with or improperly used. address cyber security tend to do so in an indirect manner. The 2. What type of information do you handle? first of these, the State Secrets Law, makes it an offence to Not all information is equal and a central tenant of the improperly handle information designated a state secret. In Guidelines is the type of information that is handled. January 2016, China also enacted the Anti-terrorism Law which Information is categorised as either Personal Sensitive is intended to identify people and activities, including those dis- Information or Personal General Information. This categorisa- cussed online that threaten public and government security. tion of information is significant because if the information is Significantly, the Act requires that telecom operators and Internet Personal General Information, the subject of that information service providers give technical support and assistance, including may be deemed to give tacit consent to its collection and use decryption solutions to police and national security authorities. (subject to a number of exceptions). If the information is Personal Sensitive Information express consent is required. The future of data protection and cyber security law The Guidelines provide a number of criteria to assess whether in China information is sensitive which broadly turns on the degree to The most significant development in cyber security is expected to which the information may identify or harm an individual if come with the introduction of a law modelled after the Cyber leaked. All other information that is not sensitive information Security Law of the People’s Republic of China (Draft). The main is considered general information. of objective of the Draft is to preserve national security by ena- 3. How do you collect information? bling the government to have more control over networks and The Guidelines make it a point to note, repeatedly, that infor- data security. If enacted in its present form, the Draft will codify mation should not be arbitrarily collected. The collection of currently scattered Internet censorship rules, provide a compre- information should be done with an informed purpose which hensive regulatory regime for cyber security and impose legal is clearly and specifically stated. In collecting information obligations on network operators and network service providers. there should be a clear method and process and only the minimum amount of information required to achieve the In addition, it is expected the insurance sector will also see the informed purpose should be collected. introduction of specific regulations with the recent release of the Draft Regulation of Information of Insurance Institutions in October 2015. “The main of objective of the Draft is to preserve national security by enabling the government to have more control over networks and data security” Richard Bell Volume 13 Issue 10, 2016 29

SPECIAL REPORT CYBER CRIME 4. Do you tell the user what you are doing? 8. Do you transfer information to a third party or an associ- Some things are best kept secret, but according to the ated entity? Guidelines the fact that you are collecting personal informa- It is common for companies to transfer information internally, tion and what you are doing with that information is not one to a related entity overseas or to a third party. However, the of them. The Guidelines require businesses to be transparent Guidelines put some limitations on this. The Guidelines in their collection of information, such that information is not require that the subject of the information be informed of and collected in a concealed or undisclosed manner, and relevant consent to the transfer to a third party or overseas, even if that matters, as outlined in the Guidelines, are disclosed to the transfer is to a related entity. person whose information is being collected. 5. Do you ask permission first? 9. Do you delete information? It is a primary requirement of the Guidelines that businesses The Guidelines include provisions which provide that where a receive consent to the collection and use of an individual’s personal information. subject of information requests the deletion of their personal Express consent must be received where: information with just reasons, businesses are required to • the information is considered personal sensitive information; delete such information. Moreover, businesses are also • the information is to be transferred to a third party; required to delete information once the informed purpose of • the information is to be transferred overseas, even if that collecting that information has been achieved or the disclosed time limit has elapsed. Where it is necessary to retain the transfer is to a related entity; information beyond this period any identifying details of the • the information is personal sensitive information and it is information must be removed. 10. Have you got a user agreement? to be retained after it has been processed; Risks posed by cyber security issues can be mitigated through • the information is to be retained for a period longer than a correctly drafted user agreement. While that may involve some expense, having a user agreement that is up to date with disclosed to the subject of the information. the law and complies with best practice will often be the best For general information the subject may be deemed to give defense against an action by the regulator or user. tacit consent, except where the information falls under one of Conclusion the above exceptions. China is a huge market for all things related to the Internet and 6. How do you process and manage information? e-commerce. That market is growing, but with that growth comes Although the Guidelines’ rules for the processing of informa- the pain of potential security breaches and cyber crime. tion are not as detailed as other sections they nevertheless stipulate a number of requirements. Primarily, there must be an With increasing requirements for data protection and cyber established system for the processing of personal information security, and increasing industry specific regulation, there is and the information should only be processed for the purposes now a strong basis for companies to review their data protection disclosed and consented to by the subject of that information. and cyber security practices and policies. Companies, particu- In addition, while the information is retained, it must not be larly those operating in multiple jurisdictions, must ensure they assessed by anyone that does not have a connection with the comply with Chinese specific regulations and not simply adopt purpose for which the information is being processed. practices and policies formulated for other markets. In addition, 7. Do you allow the user to check their own information? companies should be aware that data protection and cyber secu- An aspect of the Guidelines which may be considered more rity are no longer issues to address on a one-off basis, but rather related to cyber security is the requirement that a business are ongoing matters that should be continually audited and must keep a record of the personal information they possess updated to ensure compliance. and the status of that information. Correspondingly, the Guidelines also allow a person whose information has been collected the right to request whether the business retains any of their personal information, the contents of the information, and the status of processing that information. Where a person’s personal information is incorrect the Guidelines provide that they have a right to request the correction of that information. Endnote: [email protected] www.clydeco.com 1. SOURCE – Dezan Shira & Associates China Briefing “Logging In: Understanding e-Commerce in China” March 24, 2016, Editors: Jake Liddle and Qian Zhou. 30 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Now in its eighteenth year, the The eighteen annual gatherings In-House Congress is region’s original and of the In-House Community largest circuit of corporate counsel events, along the New Silk Road bringing together almost 3,000 corporate in-house counsel and compliance professionals along the New Silk Road each and every year. Do you have a regular dialogue ■ Abu Dhabi with your peer In-House Counsel ■ Bangkok ■ Beijing along the New Silk Road? ■ Delhi ■ Dubai “In-House Community provides a unique combination of best ■ Ho Chi Minh City practice sharing, networking, news and technical updates that ■ Hong Kong all practitioners need in order to meet the competing ■ Jakarta pressures of legal coverage, compliance and commerce. ■ Kuala Lumpur In-House Community empowers the modern lawyer to work ■ Manila smarter and become a trusted business partner” ■ Mumbai ■ Seoul Trevor Faure, Global Adviser, Legal Transformation. ■ Shanghai Former General Counsel, Ernst & Young Global, ■ Singapore Tyco International, Dell & Apple EMEA. ■ Tokyo Author of “The Smarter Legal Model: more from less” Join your colleagues at an In-HouseFORUMS FOR THE Community In_HouseAD _2016.indd In-House Congress near you www.inhousecommunity.com For more information email us at: [email protected]

Asian-mena Counsel Managing Partner Q&A The thing about … Asian-mena Counsel’s Patrick Dransfield talked to and photographed Mark Harris, Founder and CEO of Axiom, while Mark was briefly in Hong Kong and put to him a series of questions on behalf of the In-House Community. ASIAN-MENA COUNSEL: Please describe Axiom generally w w w. i n h o u s e c o m m u n i t y . c o m and the services that it provides. Mark Harris: Axiom is a recognised leader in the business of law and a leading provider of technology-enabled legal and contracting ser- vices. Our solutions combine legal experience, technology, and data analytics to deliver work in a way that dramatically reduces risk, cost and cycle time. Axiom comprises 1,500 consultants, legal profession- als, process engineers and technologists who serve over half the Fortune 100 across 16 offices and five centres of excellence globally. Since our founding in the year 2000, we have always partnered with our law department clients to find more sensible ways of deliver- ing the highest quality of legal work to their businesses. Early on, we did so by plugging Axiom professionals into clients’ existing infra- structure, handling a range of sophisticated legal work, either onsite or remotely. By eliminating traditional overhead and flattening ‘pyrami- dal’ law-firm economics, we’ve helped clients resource their legal needs far more cost effecitively. With over 800 lawyers in this part of our business alone, ‘second- ments’ are still a critical part of the Axiom brand and business. But we’ve spent the last few years helping clients pioneer a new tech-ena- bled model for contracting, establishing the industrialisation of certain legal processes as a new best practice (using automation, technology, tools and repeatable process to deliver better risk management). AMC: What has been the history of Axiom in Asia and the Middle East? What could a Beijing-based General Counsel approaching Axiom, for example, realistically expect in terms of service offer- ing and coverage? How does this compare to San Francisco? MH: Axiom founded its Hong Kong business in 2010 and was the first alternative legal service provider to enter the market, helping our cli- ents there transform the way legal work is delivered in the region. We now have over 60 legal and compliance professionals in Hong Kong and Singapore, serving the world’s largest multinational companies. 32 ASIAN-MENA COUNSEL

The thing about … Mark Harris HMararriks Volume 13, Issue 10, 2016 33

Asian-mena Counsel Managing Partner Q&A Asia is a critical part of Axiom’s global footprint, which spans boast that we served nine of the 10 largest banks in the world. 15 locations worldwide and provides its clients with access to a Four of the nine dissolved or merged out of existence in a period firm that offers regional expertise on a global scale. A Beijing- of a few weeks. based General Counsel will have access to local professionals who know and understand that market while still being able, We diversified our client base and opened offices in geogra- where appropriate, to tap into our global talent and technology phies to support that diversification. Most importantly, we capital- infrastructure, delivering topical expertise that extends beyond ised on a newfound willingness among General Counsel to break regional borders. (finally and meaningfully) with tradition and find more innovative ways to handle larger volumes of legal work, leading to the launch AMC: You are both the founder and the CEO of Axiom – of our contracts offering. please describe the history of the company from its inception. What was your inspiration? Through our work in contracts, we are challenging the incum- MH: When I was an associate at Davis Polk, I was asked to pre- bent model of legal delivery in a more profound way than ever pare a client’s monthly bill. Putting it together, I realised that one before. The incumbent model is largely artisanal: highly paid, month’s billing was nearly equal to my entire annual salary. From intensively trained specialists attack each task anew without the that point on, I was obsessed with making observations about the help of robust tools or technology. That’s perfect for novel ques- practices inside a law firm that felt inefficient and wasteful. tions of law that are irreducibly complex, but not so effective for the majority of legal work (like contracts) that’s comprised of The question I kept coming back to was: in a world where multiple and recurring transactions. everyone is trying so hard to be efficient, why does the law firm get to be so inefficient? That inefficiency translates into a stagger- AMC: Who has been your mentor – legal or otherwise? ing level of hidden cost to consumers, shareholders and the great MH: I’ve had too many mentors, coaches and helpers to name majority of people who work in the industry. I think that’s wrong just one! I am deeply in debt to great and generous people in all and unnecessary and I’ve been on a mission to change it. directions when it comes to Axiom’s success. In the early days it was difficult to get large companies to It’s incredible how much the world is prepared to help and teach, entrust high-end work to Axiom; 15 years ago, the most common once you make yourself a student. One of my mentors has a great response to entrepreneurial thinking was either outright hostility line about this – he says the world is made up of two kinds: ‘know or complete indifference. Our struggles were rooted in the indus- it alls’ and ‘learn it alls’. I’ve always wanted to be a ‘learn it all’. try’s aversion to risk and change, and a real scepticism about new models. And – in fairness – who the heck were we? We hadn’t AMC: You have personally won a number of awards as an done anything or proven anything, so I can understand the mar- industry disruptor – do you think that the global legal indus- ket’s reluctance. try is truly changing? And if so, are traditional law firms adapting fast enough? Timing compounded these challenges: only months after get- MH: Law firms are change averse by nature (they manage risk for ting started, 9/11 struck; the economy was in a slump and demand a living, after all) and by design. Most law firm partners pay brutal for outside legal services was shrinking. dues for up to 20 years to land atop the pyramid and any invest- ment made comes from the partners’ own pockets. Axiom was saved (narrowly) by a municipal grant targeted at downtown companies in New York City impacted by 9/11. In So while disruptive change is coming (and it is), it’s not January 2003, after knocking on hundreds of doors and experi- coming from the dominant firms. And it probably shouldn’t. As menting with different pricing structures, clients finally began to Richard Susskind says: “it’s hard to convince a bunch of multi- give Axiom a try. millionaires they have the wrong business model!” There’s a great business for the best law firms now and in the future, but the Life was very good for several years but, in August of 2008, industry will segment and focus its resources like all industries the financial system imploded. Investment banks comprised that have gone before us. over two-thirds of our revenue at the time. We liked to proudly “The question I kept coming back to was: in a world where everyone is trying so hard to be efficient, why does the law firm get to be so inefficient?” 34 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

The thing about … Mark Harris “we have been a significant tures, opting in and out of opportunities (rather than being forced driving force in creating a to take them), working flexibly and taking time off as needed. ‘third way’, beyond the simple choice between private practice AMC: After Axiom, what next? and in-house” MH: I can’t see that far out into the future! Along with a great group of people here, I’m on a mission to help this industry That change will be led mostly by pioneering clients who embrace and make the most out of its inevitable future. More and recognise how the application of technology and process can be more, that’s feeling like a life’s work. fundamentally game-changing, delivering massively improved results in risk management and the client experience. AMC: What is your hinterland (i.e. what are your interests outside of Axiom)? How do you control your time so that you My view is that we are migrating from the bespoke paradigm can pursue them? to the industrialisation of certain legal processes and that MH: I’m only recently getting better at managing and dividing my because the empirical results are just so much better, there is no time and it’s still a work in progress. Having talented teammates turning back. that are more than capable of operating independent of my inter- ference is definitely helping! AMC: How does Axiom train its employees to guarantee a consistent and top level of service? My primary interest outside of work is my formative family; MH: Axiom is known for having the most commercially-minded Blythe and I are having a blast spending time with our kids (Olive professionals in the market and our investment in people does not – 7, Freddie – 5), who happen to be the world’s two most hilarious end with getting the right people on board. We offer top-tier busi- people. We ski together in the winters, play at the beach together ness education in addition to the professional education you in the summers. But mostly – and in between – we hang around would expect. Our executive education programme – offered in the house on the weekends and do our best to be lazy. partnership with McKinsey & Co – provides our employees with an MBA-like certification that covers subjects like business strat- We love to entertain and architect social experiments that put egy, risk and effective communication. interesting friends together and I have a semi-obsession with design of all kinds, but especially in the home. AMC: Where do you see Axiom in three years? MH: I see a continued enlargement of Axiom’s global footprint. Mark Harris is the Founder and CEO of Axiom, a recognised We recently opened our sixth international office in Toronto (our leader in the business of law, providing tech-enabled legal, con- sixteenth overall). We are actively making plans to expand our tracts, and compliance solutions to large enterprises. Axiom’s European footprint as well, with a new office in Frankfurt later solutions combine legal experience, technology, and data analyt- this year, and growing and investing further in Asia is of course a ics to deliver work in a way that dramatically reduces risk, cost key priority. and cycle time. The firm comprises 1,500 lawyers, professionals, process engineers and technologists who serve over half the More important than footprint is impact and – in three years’ Fortune 100 across 16 offices and five centres of excellence time – I hope that we are continuing to progress innovation and globally. modernisation in a more evolved legal marketplace. The Financial Times has recognised Axiom as the world’s most AMC: How is Axiom changing the work-life balance of both innovative legal services firm and Harris, specifically, as a “top its employees and its customers (specific examples, please)? ten agent for change”, awarding him its annual Lifetime MH: Axiom has been well recognised for our efforts with clients: Achievement Award. Harris is often referenced as an industry reinventing the law firm via a streamlined cost structure, imple- disruptor and driver of market transformation. To that point, in a menting a flat-fee approach and developing a managed service 2012 New York Times cover story on the evolution of the legal model to help clients manage legal work more effectively. industry, Andrew Ross Sorkin wrote that he is “rewriting the law firm business model”. Forbes has called him a “name you need From the perspective of the Axiom professional, we have been to know” and the ABA has awarded him “legal rebel” honours. a significant driving force in creating a ‘third way’, beyond the In addition to the media accolades, Harris has spoken exten- simple choice between private practice and in-house. Axiom sively on legal innovation and is a past recipient of Ernst & offers a distinctive career proposition designed to ensure that tal- Young’s Entrepreneur of the Year award. Prior to founding ented professionals are able to continue to do blue chip work, but Axiom, Harris practised law at Davis Polk & Wardwell and with a high degree of self determination over their career. clerked on the US Court of Appeals for the Ninth Circuit. He received both his BA and JD from the University of Texas where Axiom professionals experience a wide range of client adven- he served as President of the Texas Cowboys Honorary Service Organisation. He is an Aspen Institute Crown Fellow, class of 2013, and a member of Young Presidents’ Organization (YPO). Volume 13, Issue 10, 2016 35

JURISDICTION UPDATES CHINA By Kevin Xu and Franz Li 8F, Kerry Parkside Office,1155 Fang Dian Road, Shanghai 201204, P. R. China 許江暉和李晢昊 Tel: (86) 21 50101666 / Fax: (86) 21 50101222 E: [email protected] • [email protected] • [email protected] W: www.mhplawyer.com Anti-trust guideline for automotive which will lead to the uncertainty in the industry introduces presumed exemption implementation of the Guideline. for vertical agreements Presumed Exemptions The National Development and Reform “It is burdensome for not only The Guideline highlights the following typical Commission (NDRC) released the the enforcement agencies but Presumed Exemptions in terms of restrictions Anti-trust Guideline for Automotive Industry on territory and customers: (draft for comment) (the Guideline) to the business operators, a. To limit a distributor to conducting sales solicit public opinions. One of the big attrac- economically and technically, to tions of the Guideline is the introduction of precisely implement prohibitions activities within its own business premises the concept of presumed exemption for of vertical monopoly agreements while passive sales or cross-supplies vertical agreements. between distributors is not restricted; and to successfully apply the b. To prohibit a distributor from conducting Presumed exemption for vertical limited exemptions under the active sales to a territory or a specific agreements group of customers which the motor It is burdensome for not only the enforce- safe harbour provision” vehicle supplier has reserved exclusively ment agencies but the business operators, for another distributor; economically and technically, to precisely shares of the supplier and the buyer satisfy c. To prohibit a wholesaler from conducting implement prohibitions of vertical monopoly statutory standards and the vertical agree- direct sales to end users; and agreements and to successfully apply the ments do not contain hardcore restrictions, d. To prohibit a distributor from selling limited exemptions under the safe harbour for example, the restrictions of territory and spare parts to a customer who will use provision. To provide a guide to the enforce- customers, except for certain special situa- such spare parts to manufacture the ment agencies to correctly apply Article 14 tions (such special situations are similar to products same as those of the motor and Article 15 of the Anti-Monopoly Law those Presumed Exemptions in the Guideline vehicle supplier. (the AML) and to help lower the business as further discussed below). operators’ cost in connection with their daily Exceptions to Presumed Exemptions regulatory compliance, the Guideline intro- No appreciable market power As far as a specific case is concerned, pursu- duces the presumed exemption for vertical With respect to the criteria of “no appreci- ant to the Guideline, in the event that there agreements. Generally, certain types of able market power”, the Guideline provides are solid evidences that can prove incon- restrictions on territory and customers set by that if a business operator occupies less than formity of the business operator’s behaviour business operators who have no appreciable 25 percent to 30 percent market shares in with Article 15 of the AML, the enforcement market power (the Presumed Exemptions), the relevant market, it is likely that such agency can still apply Article 14 of the AML. as expressly listed in the Guideline, may be business operator will be deemed to have That is to say, even though a business opera- presumed to fall into the exemption catego- no appreciable market power. However, tor does have no appreciable market power ries under Article 15 of the AML. the Guideline fails to further clarify the and its behaviors fall into the Presumed upper limit of market shares for evaluating Exemptions, it will not necessarily rule out The Presumed Exemption is transplanted whether a business operator has no appre- entirely the likelihood of being deemed as from the concept of block exemption under ciable market power, 25 percent, 30 per- vertical monopoly agreements. In addition, EU competition law. Under the system of cent or any percentage ranging between 25 since the Guideline is a regulatory document block exemption, the exemption provided percent and 30 percent. Moreover, the which has no binding effect upon the courts, for in Article 101(3) of the Treaty on the Guideline keeps silent in terms of market the counterparty affected by the vertical Functioning of the European Union can apply definition and market share calculation, agreement may still bring lawsuit to courts to vertical agreements where the market for remedy, even if the restrictions are deemed to be permissible by enforcement agencies pursuant to the Guideline. 36 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Application of Presumed Exemptions ritory and customer restrictions set by busi- tions but provides that Article 15 of the AML limited to automotive industry ness operators in the automotive industry. can be presumed to apply to the agreement The system of block exemption under EU The Anti-trust Guideline for the Abuse of related to intellectual property rights if it is competition law can apply to all the industrial Intellectual Property Rights (draft for com- concluded by business operators whose mar- sectors. However, the Presumed Exemptions ment) drafted by NDRC does not expressly ket shares satisfy certain standards. in the Guideline will be applicable only to ter- mention the concept of presumed exemp- 汽車業反壟斷執法指南提出縱向 （4）為避免配件被客戶用於生產與汽 協議推定豁免 車供應商相同的產品，限制經銷 商向該類客戶銷售配件。 根據國務院反壟斷委員會的工作計 不具有市場顯著力量 劃，國家發展改革委員會起草了 關於“不具有市場顯著力量”的標准， 需要特別指出的是，《反壟斷法》並未 《關於汽車業的反壟斷指南》（“《指 《指南》給出的解釋是在相關市場上佔 明確規定地域限制與客戶限制是否合 南》”）。其中，縱向協議推定豁免是 有25%-30%以下市場份額的經營者有 法。但是此次《指南》卻對汽車業經營 《指南》的一大亮點。 可能被認定為不具有市場顯著力量。 者設置地域限制和客戶限制在相關市場 《指南》並未規定具體以25%還是30% 份額及縱向協議推定豁免的問題上特別 《反壟斷法》“原則禁止和例外豁免” 亦或是25%-30%之間的某一市場份額 作出細化規定，這些規定明顯較《反壟 制度 比例作為判斷經營者不具有市場顯著力 斷法》更加嚴格。因此，該執法趨勢應 《反壟斷法》第十四條以非窮盡的方式 量的上限。同時，指南並未就相關市場 當引起注意。 列舉了構成縱向壟斷協議需要禁止的幾 界定和份額計算作出更詳細的說明，存 種情形。但是，如果經營者可以証明協 在一定的不明確性。 推定豁免的例外情況 議符合《反壟斷法》第十五條，不會嚴 《指南》進一步規定，根據個案具體 重限制相關市場的競爭，並且能夠使消 情形，如果有証據能夠証明經營者的 費者分享由此產生的利益的，則該協議 行為不符合《反壟斷法》第十五條的 不適用第十四條的禁止性規定。 規定，反壟斷執法機構仍然可以對相 關行為適用《反壟斷法》第十四條。 縱向協議的推定豁免 “《指南》提出了縱向協 也就是說，即使經營者不具有市場顯 為了指導執法機關正確適用《反壟斷 著力量的條件並且其採取的限制屬於 法》第十四條和第十五條並為經營者合 議的推定豁免，從而細化 推定豁免情形，也無法完全排除被認 規工作提供參考，《指南》提出了縱向 定為實施壟斷協議的風險。同時，鑒 協議的推定豁免，從而細化了《反壟斷 了《反壟斷法》中的 於《指南》屬於其他行政規范性文 法》中的“原則禁止和例外豁免” 件，對司法機關沒有約束力，即使執 制度。 “原則禁止和例外豁免” 法機關基於《指南》認定經營者行為 適用第十五條，受影響的當事人仍然 《指南》列出了不具有市場顯著力 制度。” 可以向司法機關提起訴訟尋求救濟。 量的經營者設置的地域限制和客戶限制 所以，《指南》並未創設真正意義上 的若干情形（“推定豁免情形”）可以 推定豁免情形 的安全港，但具有一定的參考價值。 推定適用《反壟斷法》第十五條的例外 適用推定豁免的地域限制和客戶限制的 豁免規定。 情形主要包括： 推定豁免僅適用於汽車業經營者設置的 （1）約定經銷商僅在其營業場所進行 地域限制和客戶限制 這一規定借鑒了歐盟競爭法下集體 歐盟競爭法下的集體豁免制度規定在一 豁免制度（Block Exemption），即隻 經銷活動，但不限制該經銷商的 部統一的歐盟條例中並適用於全部行 要供應方和購買方的市場份額都符合一 被動銷售，也不限制經銷商之間 業，而本文所提到的推定豁免僅適用於 定標准，他們之間達成的縱向協議可以 交叉供貨。 汽車業經營者設置的地域限制和客戶限 推定適用《歐盟運作模式條約》第一百 （2）限制經銷商對汽車供應商為另一 制。在國家發展改革委員會起草的另一 零一條第三款的規定而被豁免，隻要縱 經銷商保留的獨佔地域或專有客 部《關於濫用知識產權的反壟斷指南》 向協議中不包含以限制競爭為目的的核 戶進行主動銷售。 征求意見稿沒有直接提及推定豁免，但 心條款，如供方在協議中限制買方銷售 （3）限制批發商直接向最終用戶進行 規定達成相關知識產權協議的經營者符 商品的地域或者顧客（特定的情形除 銷售。 合一定市場份額條件，推定該知識產權 外，這些特定情形與下文所述的適用推 協議適用《反壟斷法》第十五條。 定豁免情形基本相同）。 推定豁免概念與操作仍屬於壟斷執 法和合規建設的試水階段，后續能否擴 展到全部反壟斷領域值得關注。 Volume 13 Issue 10, 2016 37

JURISDICTION UPDATES INDIA By Rahul Beruar and 14th Floor, Dr Gopal Das Bhawan , 28, Barakhamba Road, New Delhi 110 001 India Sarita Rout Tel: (91) 11 4213 0000 / Fax: (91) 11 4213 0099 E: [email protected] • [email protected] W: www.clasislaw.com Compulsory licensing of patents in India: investments. However, the very statements a human rights issue as well! undermine the judicial process of issuing compulsory licence in India (as seen in the The compulsory licensing regime in India in making life-saving drugs easily accessible NATCO case) which follows the due process has always been embroiled in contro- and available at an affordable price to patients. under the Indian law and TRIPS. Also, it versy, more so when it involves compulsory would not be out of context to note that the licensing of pharmaceutical patents, the lat- The first Indian compulsory licence was United States was one of the first countries to est being a statement US-India Business granted in March 2012 to NATCO for Bayer issue compulsory licence for a patented drug. Council (USIBC) made in its report issued in AG’s anti-cancer drug ‘Nexavar’ (sorafenib Furthermore, TRIPS itself affords several flex- response to the Federal Register Notice (81 tosylate) as NATCO proposed to make the ibilities for contracting parties to mould their F.R. 10513): generic version of the drug available in India domestic laws to accommodate national pri- for Rs. 8,800 as against the patentee BAYER orities and unambiguously provides for com- “Despite compulsory licensing denials, AG’s price of Rs. 2,84,000. pulsory licensing, with just restrictions. Industry continues to be concerned by the potential threat of compulsory licensing. While the above set out a precedent for In this scenario, the statements and The government of India has privately reas- many more compulsory licences to be observations made by the USIBC have led sured [that] it would not use Compulsory to a furore and alarm amongst stake holders. Licences for commercial purposes. USIBC “Under the Indian patent The Ministry of Finance subsequently issued would be further encouraged if the govern- regime, a compulsory licence is a press release on March 22, clarifying that ment of India made a public commitment to granted to a third party … to such reportings are factually incorrect and forego using compulsory licensing for com- produce and market a patented stated that the government is “conscious of mercial purposes and in public emergencies invention without the consent of the need to spur innovation and protect only, which would greatly enhance legal individual rights and retains the sovereign certainty for innovative industries.” the patent holder” right to utilise the flexibilities provided in the international IPR regime”. Under the Indian patent regime, a com- granted in future, the threshold for granting pulsory licence is granted to a third party a compulsory licence remains in satisfying Interestingly, the National Human Rights (read: generic drug manufacturer), to pro- the above parameters. Most of the applica- Commission, India (NHRC) has intervened duce and market a patented invention with- tions for compulsory licences filed so far taking a suo moto action and also issued a out the consent of the patent holder. A could not satisfy the conditions for compul- press release dated April 1, 2016 directing compulsory licence can be granted only sory licence and were rejected on merits, the Union Ministries of Commerce & upon expiration of three years of grant of a thereby demonstrating the robustness of Industries & Health to submit reports in the patent upon satisfaction of any of the follow- Indian Patent Regime and the compulsory matter. The NHRC expressed its concerns ing grounds: licensing mechanism thereunder. over the right to health and right of the peo- a) Reasonable requirements of public with ple to access generic medicines at affordable The USIBC, however, judged this as a prices in the wake of rumours of greater respect to the patented invention not trend of non–issuance of compulsory licences restraint approach being exercised in handing been satisfied; and observed that the rejection of compul- out compulsory licences in India to produce b) Patented invention not being available sory licences so far provide investor certainty cheaper versions of drugs patented with the to the public at a reasonably affordable and predictability that their patents will be American firms. price; or upheld in India. Such observations may hold c) Patented invention is not used in the true and genuine when looked at from the Needless to say, it is crucial to examine territory of India. perspective of development, innovation and each application of compulsory licensing and grant the same while being mindful of striking The TRIPS compliant compulsory licensing a balance between the right to health and regime in India is a very significant provision affordable medicine as well as boost innova- tion and investment in the country. 38 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

INDONESIA By Miftahul 14th Floor, Mayapada Tower, Jl. Jend. Sudirman Kav. 28, Jakarta 12920, Indonesia Khairi Tel: (62) 21 521 2038 / Fax: (62) 21 521 2039 E: [email protected] W: www.ssek.com Revisiting the Indonesian Language Law future court could decide that the Indonesian language must prevail. An additional but Indonesia’s Law No. 24 of 2009 regarding Court decision was still not yet publicly avail- perhaps unavoidable disadvantage from a the National Flag, Language, Emblem and able as of early 2016 and hence a compre- commercial perspective of a dual-language Anthem (the Language Law) was very likely hensive analysis cannot yet be made, document is the additional time and cost not one of the most visited regulations until although it would not be surprising if the incurred to properly translate the agree- the West Jakarta District Court rendered a Supreme Court merely upheld the High ment into Indonesian. Further, as a legal groundbreaking decision in 2013 (i.e. West Court decision without providing a full analy- document is involved and the translation Jakarta District Court Decision No. 451/ sis. Also, as a matter of Indonesian law, the must be accurate, reliance on a translator Pdt.G/2012/PN.Jkt.Bar (Court Decision No. Supreme Court decision is not yet final and might be insufficient, especially when the 451) that immediately multiplied the level of binding because the losing party may resort document is complex. In that case, a lawyer scrutiny by both business players and lawyers to further appeal remedies. It is also to be may be called on to either prepare or of the relevant provision under the Language noted that Indonesia does not follow the review the translation. Law concerning the mandatory use of the stare decisis principle familiar to common Indonesian language in agreements. law systems, so Indonesian courts are not The Indonesian version is very impor- bound by previous court decisions. To obtain tant, especially if any dispute is to be resolved Article 31(1) of the Language as much legal certainty as possible, business in Indonesia. Whatever is said about prevail- Law stipulates: players have chosen to ensure that their ing languages, any court in Indonesia, agreements with an Indonesian party are whether on original jurisdiction or to enforce “The Indonesian Language must be executed only in the Indonesian language or a foreign arbitral award, will naturally read used in a memorandum of under- in the Indonesian language and a foreign the Indonesian version first and one would standing or agreement involving state language, most commonly English. then have to dislodge the court from a posi- institutions, government agencies of tion taken based on the Indonesian version the Republic of Indonesia, Indonesia’s It is inevitable that in cross-border trans- in the event of any inconsistency. private institutions or individual actions the underlying agreement will not be Indonesian citizens.” in the Indonesian language alone, as a for- Finally, in addition to having transaction Court Decision No. 451 ruled that a com- eign party would not be comfortable with a documents in dual languages, the incorpora- mercial agreement with an Indonesian party language it does not understand. Also, it will tion of one or more provisions related to that was not executed in the Indonesian want the language it does understand to be Language Law issues in the underlying language is null and void because it violates the prevailing language. In most cases, the agreement is also a prevalent practice. Article 31(1) of the Language Law. The second language is English, as the prevailing Parties try to remove legal uncertainty by District Court reasoned that the mandatory lingua franca for commercial transactions. formulating provisions that address language requirement to use Indonesian in an agree- The Language Law explicitly allows execu- issues that may arise in the future and safe- ment was a clear and objective element of tion of an agreement in more than one lan- guard their interests against the possible the legality of an agreement under the guage (provided that one of the languages is arguments that could be invoked by their Indonesian Civil Code. the Indonesian language) and does not counterparts to challenge the enforceability In the first quarter of 2014, the High impose an obligation to use the Indonesian of the agreement. Court of Jakarta affirmed the decision of the language as the prevailing language. West Jakarta District Court. The High Court Unfortunately, there is a paucity of other of Jakarta decision was then appealed to the While English is most often chosen as court decisions dealing with this issue and Supreme Court and last year the Supreme the prevailing language, there is a risk in this other provisions under the Language Law. Court issued Decision No. 601 K/ approach, as the Language Law does not Furthermore, as of this date, the implement- PDT/2015, which rejected the appeal and explicitly, or otherwise, provide that a for- ing presidential regulation regarding the upheld the High Court’s affirmation of the eign language will prevail over the Indonesian mandatory use of the Indonesian language in Jakarta decision. Unfortunately, the Supreme version. It is possible, therefore, that a an agreement with an Indonesian party, as mandated by Article 40 of the Language Law, has not been promulgated. Volume 13 Issue 10, 2016 39

JURISDICTION UPDATES MALAYSIA D3-3-8 Solaris Dutamas, No 1 Jalan Dutamas 1, 50480 Kuala Lumpur, Malaysia Tel: (60) 3 6209 8228 / Fax: (60) 3 6209 8221 E: [email protected] W: www.zulrafique.com.my New Minimum Wages from July 2016 apply to a ‘domestic servant’ as defined under section 2 of the Employment Act Background workers and thus reducing the dependence 1955, section 2 of the Sabah Labour In Malaysia, the National Minimum Wages on foreign labour in Malaysia. Ordinance and section 2 of the Sarawak initiative (the Policy) was first introduced and Labour Ordinance. announced by the Malaysian Prime Minister Following the passage of the Budget in Dato’ Seri Najib Tun Razak in his budget November 2015, the Minimum Wages A domestic servant, as defined, is a per- speech on October 15, 2010. The Policy is Order 2016 (the current Order) was prom- son employed in connection with the work one of the government’s policy instruments ulgated and will come into operation on July of a private dwelling house and not in con- vide the New Economic Model which looks 1, 2016. Under the current Order, the nection with any trade, business, or profes- to rectify the wage-setting mechanism for monthly minimum wages rate payable to an sion carried on by the employer in such low-income workers. employee in Peninsular Malaysia has been dwelling house and includes a cook, house servant, butler, child’s nurse, valet, footman, The Policy raised the basic wages of all “The changes are aimed at gardener, washerwoman, watchman, groom employees to a minimum of MYR900 in increasing the participation of and driver or cleaner of any vehicle licensed Peninsular Malaysia and MYR800 in East local workers and thus reducing for private use. Malaysia (comprising the states of Sabah, Sarawak and the Federal Territory of the dependence on foreign Concerns Labuan), and was extended to foreign work- labour in Malaysia” The raise of minimum wages has caused ers beginning January 1, 2014. Minimum divergent views amongst the market players. wages is basic wages without any allowances increased from MYR900 to MYR1000, while The Malaysian Employers Federation (MEF), or other payments. the monthly rate of minimum wages enjoyed citing grounds like economic slowdown, by employees in East Malaysia is now increased operation cost, and high retrench- The Minimum Wages Order 2012 (the MYR920, from the previous MYR800. Once ment rate, urged the government of Malaysia previous Order) commenced on January 1, the current Order takes effect, the previous to postpone the implementation of the cur- 2013 for employers with more than five Order and its guidelines will be repealed. rent Order. The Malaysian Trades Union employees, and July 1, 2013 for employers Congress (MTUC), on the other hand, with five or fewer employees. At the same Application refuted such claims and viewed that the time, guidelines were issued by the National The application of the current Order is enforcement of the current Order will not Wages Consultative Council in September extended to employees who are paid on the contribute to retrenchment and closure of 2012 to facilitate the enforcement of the basis of piece rate, tonnage, task, trip, or businesses. In fact, they argue that the incre- previous Order. commission. The minimum rate of monthly ment would help employees cope with the wages for such employees is set at a mini- cost of living and also serve as an incentive for Recent developments mum amount of MYR1000 for those in employees to be more productive. In October 2015, the Malaysian Prime Peninsular Malaysia, and MYR920 for Minister (who is also the Finance Minister), in employees in East Malaysia. However, it shall Conclusion his Budget 2016 (the Budget) speech, be noted that the current Order does not Despite disagreements over the introduction revised and announced a higher rate of of a higher rate of minimum wages, optimists minimum wages for employees in Peninsular say that the current Order will boost the Malaysia and East Malaysia. The changes are income of Malaysians and improve the econ- aimed at increasing the participation of local omy of the nation. Find the Asian-mena Counsel JURISDICTION UPDATES archived at inhousecommunitywww. .com 40 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

PHILIPPINES By Harry Gwynn ACCRALAW Tower, 2nd Avenue corner 30th Street Omar M. Fernan Crescent Park West, Bonifacio Global City, 0399 Taguig, Metro Manila, Philippines Tel: (632) 2231-4223 / Fax: (632) 4037007 or (632) 4037008 E: [email protected] W: www.accralaw.com Interplay of domestic law on compulsory determine which medicines are necessary to licensing and international agreements address health crisis and, thus, make medi- on medicine prices cine affordable. The price of pharmaceutical products in sory licence is granted, the grantee may Interplay of domestic law and interna- the Philippines appears to be on the manufacture the patented medicine subject tional agreements high side compared to that in other Asian to the payment of reasonable royalties. Under the IP Code, public interest, in par- countries and countries of similar economic ticular, national security, nutrition, health or status (http://opinion.inquirer.net, 2012). Based on jurisprudence, the amount of the development of other vital sectors of the The cost of research, presence of competi- royalties is typically 2.5 percent of the wholesale national economy are sufficient grounds to tion in the market and patent protection are price of the patented product (G.R. No. grant compulsory licence. However, the among the significant factors influencing the 12187, 1997; G.R. No. 82542, 1988; G.R. TRIPS Agreement limits such scope (Rep. price movement of these products. No. 121267, 2001). This amount is enough to Act No. 8293, 1997). Even with the 2001 establish effective competition in the market. Doha Declaration, it is still doubtful whether Medicines with existing patents in the the Philippines can grant compulsory licence Philippines are likely to be more expensive International agreements on medicines for hypertension – one of the due to the ability of pharmaceutical compa- Under the Trade-Related Aspects of leading causes of death of Filipinos (http:// nies to dictate their prices. Intellectual Property Rights (TRIPS) www.doh.gov.ph, 2016). Hypertension may Agreement, member countries may provide not squarely fall under a situation involving Patent protection grants exclusive rights certain exceptions to the exclusive rights con- public health crisis or be considered an epi- to exploit invention for 20 years (Rep. Act ferred by a patent. Such exceptions, however, demic. In fact, Thailand was heavily criticised No. 8293, 1997). While it gives inventors must neither unreasonably conflict with a for granting a licence for Plavix: an anti- and pharmaceutical companies incentive to normal exploitation of the patent nor unrea- hypertension drug. invest in the research and development of sonably prejudice the patent owner’s legiti- medicine, it may also result in arbitrary pric- mate interests (TRIPS Agreement, 1994). How can the Philippines address the ris- ing of medicine. ing toll of hypertension cases if its hands are Common illnesses such as hypertension tied by its limited budget on health and its The drug Soliris, for example, costs half are not circumstances that allow the grant of commitment to the TRIPS Agreement? a million dollars per year for each patient compulsory licence. When Thailand granted despite a production cost of less than one a compulsory licence for Plavix, a drug to The state has the duty to protect and percent of the selling price (http://www.cbc. prevent heart disease, it was considered to promote the right to health of ca, 2015). It is considered one of the world’s have violated the TRIPS Agreement (http:// its people. Countries such as India single most expensive drugs and is produced www.ip-watch.org, 2007). (http://www.forbes.com, 2013), Brazil by a relatively new player in the pharmaceu- (http://www.worldipreview.com, 2013), and tical industry: Alexion Pharmaceuticals The 2001 Doha Declaration on the Thailand went as far as violating the TRIPS (http://www.forbes.com, 2010). TRIPS Agreement and Public Health relaxed Agreement in order to protect the health of the condition imposed by the TRIPS agree- their citizens. Compulsory licensing ment and allowed countries to determine Compulsory licensing is one way to bring what constitutes a national emergency or Intellectual property protection is indeed down medicine prices by introducing com- other circumstance of extreme urgency. vital to the growth and development of civi- petition in the market. The Intellectual National emergency is understood as a situ- lised society. Likewise, compliance with inter- Property Code allows, under certain circum- ation which involves public health crises, national agreements is imperative. However, stances, the grant of licence to exploit anoth- including those relating to HIV/AIDS, tuber- at a certain point, an individual’s right to life er’s patented invention even without the culosis, malaria and other epidemics. This should be considered paramount. patent owner’s agreement. Once a compul- gives the government ample leeway to (First published in Business World Online on September 15, 2015) Volume 13 Issue 10, 2016 41

JURISDICTION UPDATES SOUTH KOREA By Yeun-Sook Poongsan Bldg. 23 Chungjeongro, Seodaemun-gu, Seoul 03707, Korea Suh Tel: 82 2 2262 6000 / Fax: 82 2 2279 5020 E: [email protected] W: www.leeinternational.com The right to be forgotten One of the issues created by the According to the draft guidelines, when tion, the administrator can block access to Internet concerns the right to delete a user has cancelled his/her account with a the post by various means such as ‘blinding’ what one has posted on the web. web service (including a foreign-based web the post. Users can also request search pro- service that provides Korean language ser- viders (including foreign search services that The Korea Communications Commission vices for a Korean audience), or otherwise is provide Korean language searching) to has recognised that while there are actions remove the users’ posts from search results. and remedies that can be taken concerning “The Korea Communications Upon request, those search providers posts by a third party (such as injunctions), Commission has recognised that should exclude such posts from search regulatory blind spots exist when it comes results and also purge cached search results. to an individuals’ own posts. For example, while there are actions and problems can occur when people cancel remedies that can be taken Administrators and providers can reject their accounts on a website and lose the concerning posts by a third party such requests if such restrictions would access rights to administer their posts. To (such as injunctions), regulatory violate other laws or if there is a strong address these problems and protect the blind spots exist when it comes public interest in providing access to the rights of individuals over their own words, to an individuals’ own posts” post that outweighs the privacy right. while at the same time minimising the nega- Examples would be a statement by a public tive impact that could limit freedom of unable to delete his/her own posts, the user official about public policy, or a news article expression, the Korea Communications should be provided with a procedure to published by the press. Commission has established a draft pro- enable the deletion of posts. Such proce- posal for ‘Guidelines on Access Restrictions dure would involve making a request to the The guidelines also provide procedures by Authors to Their Own Self Censorship’. web service administrator to delete posts for a party to demonstrate that he/she is the and submitting supporting materials to dem- true author of a post and to request re- The draft guidelines acknowledge that onstrate entitlement to the deletion. If the publishing of a deleted post that has been users of websites have a privacy right to web service administrator determines that improperly deleted. restrict access by others to content the the requestor is the actual author of the post users have the privacy right of authors to or otherwise authorised to request the dele- The guidelines will begin to be applied censor their own content. Such rights apply in mid-June of 2016. They will begin as to one’s own posts (including writings, pic- voluntary guidelines for service providers. tures and uploaded videos) and also to the Although they will not be legally binding, it posts of someone who is deceased. (Such will be a meaningful first step in the quest privacy rights could be exercised by surviv- to protect an individual’s privacy right to ing relatives and trustees). be forgotten. Find the Asian-mena Counsel JURISDICTION UPDATES archived at inhousecommunitywww. .com 42 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

UNITED ARAB EMIRATES By Rebecca Ford, Sara Khoja and PO Box 7001, Rolex Tower, Sheikh Zayed Road, Dubai, United Arab Emirates Samantha Ellaby Tel: (971) 4 384 4000 or / Fax: (971) 4 384 4004 E: [email protected] • [email protected] • [email protected] W: www.clydeco.com End of Service Gratuity whereby GCC nationals receive the same treatment with regard to state pension as End of Service Gratuity (Gratuity) is a much depend on the particular details of any they would have had if they worked in their statutory severance pay across most commission or bonus scheme. home country, in accordance with the laws Middle Eastern jurisdictions and one which of their home country. is conceptually analysed as akin to a retire- Gratuity as an inherent ment savings scheme or pension scheme. employee entitlement There are minimum and maximum This article explores some of the common Employers new to the Middle East can earning levels for such pension contributions pitfalls and tricky issues which arise in rela- sometimes be surprised at the inherent and a GCC national is potentially entitled to tion to statutory Gratuity in the United Arab nature of the entitlement to Gratuity. Gratuity on any basic salary earned in excess Emirates (UAE) under Federal Law No.8 of of the maximum earnings level for pension 1980 Regarding the Organisation of Labour Gratuity may be subject to reductions contributions. On a contractual basis, Relations, as amended (UAE Labour Law). where an employee resigns. However, employers should take care not to inadvert- This is, however, a regional issue and many once an employee’s service reaches five ently grant such GCC employees Gratuity of the points flagged below will apply equally years, they will be entitled to their full in addition to contributions into the state across the Middle East. Gratuity payment, notwithstanding that they pension scheme. have resigned. Interaction with pensions Potential pitfalls when “Employers new to the – non GCC nationals calculating Gratuity Middle East can sometimes Under the UAE Labour Law, it is possible The UAE Labour Law sets out a prescriptive be surprised at the inherent for an employer to contribute into a pen- formula for calculating Gratuity. Whilst it nature of the entitlement sion scheme for an employee in lieu of the does not expressly state that this benefit is obligation to pay Gratuity. On termination payable in relation only to service in the to Gratuity” of employment, the employee can choose UAE, this is certainly the accepted position. pension or Gratuity, whichever is more However, many employers often inadvert- No Gratuity is payable where an favourable to them. ently recognise non-UAE employment ser- employee’s employment is terminated for vice through contractual agreement, for one of the reasons set out under Article 120 In our experience, the UAE courts example where an employee is an interna- of the UAE Labour Law. However, this arti- appear to be reluctant to accept that contri- tional transfer from another jurisdiction cle is generally reserved for the most seri- butions into an international pension within the business. It may be possible to ous acts of gross misconduct, often involving scheme are more beneficial to an employee recognise seniority but contractual provi- a criminal element. More commonly, in than Gratuity as the pension benefit will sions should be carefully worded so that the cases of poor performance or misconduct, generally only be received once he reaches Gratuity benefit is not thereby enhanced. employers will terminate on notice for, what the relevant retirement age, whereas is referred to under the UAE Labour Law Gratuity is payable immediately. Another area for consideration is where as, a “valid” reason, in which case the an employee receives commission or bonus employee is entitled to their full Gratuity. Nonetheless, employers may wish to payments during employment. The UAE offer pension benefits as a means of reten- Labour Law provides that Gratuity should Interaction with pensions tion or, increasingly, because it is market be calculated on the basis of remuneration – GCC nationals practice to do so. The risk of having to excluding all benefits in kind and any type of The UAE has in place reciprocal pension provide both Gratuity and the pension ben- allowance. This wording leaves the position arrangements with other GCC countries efit may be mitigated through contractual of commission or bonus payments poten- provisions and the rules of the relevant tially ambiguous and whether or not such scheme should be reviewed and the payments should be taken into considera- administrator or provider of the scheme tion when calculating Gratuity will very consulted to ensure that the rules them- selves can protect the employer as much as possible. Volume 13 Issue 10, 2016 43

JURISDICTION UPDATES VIETNAM By Tran Ho Chi Minh City Office – Unit 305, 3rd Floor, Centec Tower Duc Toan 72-74 Nguyen Thi Minh Khai, Ward 6, District 3, Ho Chi Minh City, Vietnam Tel: (84) 8 3823 9640 / Fax: (84) 8 3823 9641/ Moblie: (84) 932 328 993 E: [email protected] Hanoi Office – Unit 705, 7th Floor, CMC Tower, Duy Tan Street, Cau Giay District, Hanoi, Vietnam Tel: (84) 4 3795 5261 / Fax: (84) 4 3795 5262 E: [email protected] W: www.indochinecounsel.com New regulation of Vietnam on Sequence and procedures re-organisation of credit institutions for re-organisation Circular 36 provides detailed regulations of On December 31, 2015 the State Bank agreements of the contracting parties, application file, sequence and licensing pro- of Vietnam (SBV) promulgated Circular and shall ensure the safety of assets, and cedures required for each form of re- No. 36/2015/TT-NHNN regulating the re- make no adverse impact on the interests organisation of credit institutions. In short, organisation of credit institutions, in the form of the credit institution(s) and other par- Circular 36 regulates three main licensing of merger, consolidation and conversion of ties involved in the re-organisations. steps and its relevant time limit as follows: legal forms of certain types of credit institu- • Re-organisation of credit institutions shall • First, it is required to submit a complete tions, including only commercial banks and comply with the completion law and finance companies (Circular 36). relevant legal regulations. Operational application file to SBV for a written in- scope of a credit institution after re- principle acceptance of the re-organisa- Re-organisation principles organisation must comply with the oper- tion of the credit institution(s) which and conditions ational scope stipulated by law as may be granted by SBV within 60 days Under Circular 36, re-organisation of credit applicable to each type of credit institu- of receipt of the proper application file; institutions shall meet, inter alias, the fol- • Then, within 60 days (or 120 days in lowing key principles and conditions: “In any case of re-organisation, case of conversion of legal form of • Confidentiality of information is credit institution) of receipt of the the credit institution must have a aforesaid in-principle acceptance, it is required, aiming to ensure the stable required to submit a required dossier operation of the credit institution(s) conversion plan approved by its for obtainment of an approval from the prior to the re-organisation plan of the SBV for the re-organisation of credit credit institutions being approved by its competent body and satisfy institution. The SBV, within 30 days of decision-makers. receipt of a complete and valid file, shall • However, within seven business days of requirements in confirm official approval to the re- obtaining an in-principle acceptance from organisation, amendments to the the SBV for a re-organisation plan, the accordance with laws” licence for establishment and operation relevant credit institutions must list at its of the re-organised credit institution(s) offices and disclose on the information tion, and in case of merger and consoli- and registration of the charter, and media of the SBV and in national daily dation of credit institutions, such approve any other items; newspaper or Vietnamese electronic operational scope means the operations • Finally, within 45 days of the effective newspaper, certain required information of the involving credit institutions, if fully date of the letter notifying official (including issuance date of the obtained satisfying the relevant operational condi- approval by the SBV, the re-organised in-principle acceptance, name and char- tions prescribed by law, including but not institution(s) shall conduct procedures ter capital of the involved credits institu- limited to regulations on restrictions, for enterprise registration, disclose tions, as well as the proposed organisation prudential ratios, capital contribution and information and send a report to the and operation form of the post-reorgan- share ownership ratios and conditions SBV when the re-organisation proce- ised credit institution). for conducting banking operations. dures have been completed. • It is strictly prohibited to disperse assets • In any case of re-organisation, the For each step, the credit institution and in any form. Any transfer and sale of credit institution must have a conver- other relevant parties shall fully prepare the assets during the re-organisation process sion plan approved by its competent items and documents complying with the must ensure publicity, transparency and body and satisfy requirements in regulations under Circular 36. compliance of legal regulations and accordance with laws. Circular 36 comes into full force on March 1, 2016. 44 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

ASIAN-MENA COUNSEL DIRECT Your ‘at a glance’ guide to some of the region’s top service providers. Indicates an Asian-mena Counsel Firm of the Year. 2013 2014 2015 MR An Asian-mena Counsel Most Responsive Firm of the Year. MR An Asian-mena Counsel Honourable Mention Most Responsive Firm of the Year. One of this firm’s three largest practice areas in this jurisdiction. Indicates a full service firm in this jurisdiction. Practice Area key: E Employment INS Insurance RE Real Estate / Construction ENR Energy & Natural Resources LS Life Sciences REG Regulatory / Compliance INV Alt’ Investment Funds (inc. PE) ENV Environment LDR Litigation & Dispute Resolution RES Restructuring & Insolvency COM Antitrust / Competition IA International Arbitration MS Maritime & Shipping TX Taxation AV Aviation IP Intellectual Property PF Projects & Project Finance TMT Telecoms, Media & Technology BF Banking & Finance IF Islamic Finance (inc. Infrastructure) CM Capital Markets CMA Corporate & M&A — Law Firms — R & T Sok & Heng Law Office LS Horizon (Myanmar) Limited Tel: (855) 23 963 112/113 Tel: (951) 860-3435 Ext. 6001 ASIA Email: [email protected] Email: [email protected] Contact: HENG Chhay Contact: Mr. Sunpasiri Sunpa-a-sa AUSTRALIA Website: kh.rajahtann.com Website: www.lshorizon.com Clyde & Co Brisbane: BF CM CMA RE REG CMA ENR LDR PF RE Tel: (61) 7 3234 3000 Email: [email protected] —————— —————— Melbourne: Tel: (61) 3 8600 7200 Siam City Law Offices Limited Myanmar Legal Services Limited Email: [email protected] (SCL Law Group) Myanmar Legal Services Limited Perth: Cambodia Office: Tel: 951-657792; 951-650740 Tel: (61) 8 6145 1700 Tel: (856) 21 222 732-3 Email: [email protected] Email: [email protected] Email: [email protected] Website: www.myanmarlegalservices.com Sydney: Contact: Varavudh Meesaiyati Contacts: Tel: (61) 2 9210 4400 Website: www.siamcitylaw.com Daw Khin Cho Kyi ([email protected]) Laos Office: Jutharat Anuktanakul ([email protected]) Tel: (856) 21 222 732-3 Email: [email protected] CMA ENR LDR PF RE Contact: Nilobon Tangprasit Email: [email protected] Website: www.siamcitylaw.com Contact: John Edmond, Partner Myanmar Office: Website: www.clydeco.com Tel: (951) 653348-49 Email: [email protected] CHINA ENR INS MS PF RE Contact: Vira Kammee Website: www.siamcitylaw.com Clyde & Co. 2013 2014 2015 —————— Beijing: Tel: (86) 10 5814 3600 LAOS: Email: [email protected] LS Horizon (Lao) Limited Contact: Patrick Zheng, Managing Partner CAMBODIA/LAOS/MYANMAR Tel: (856) 21 217 762, (856) 21 217 768 Chongqing: Email: [email protected] Tel: (86) 23 6380 0769 CAMBODIA: Contact: Mr. Sunpasiri Sunpa-a-sa Email: [email protected] BNG Legal Website: www.lshorizon.com Contact: Carrie Chen, Cambodia Office: Partner (Clyde & Co Westlink JLV) Tel: (855) 23 967 450 / (855) 23 217 510 BF CMA LDR PF RE Shanghai: Email: joseph@bnglegal Tel: (86) 21 6035 6188 Email: [email protected] —————— Email: [email protected] Contact: Joseph M. Lovell Contact: Ik Wei Chong, Website: www.bnglegal.com MYANMAR: Myanmar Office: LawPlus Myanmar Ltd. Partner and Shanghai Chief Representative Tel: (950) 1 441 3432 Tel: (950) 92 6111 7006, (950) 92 6098 9752 Email: [email protected] Email: [email protected] Website: www.clydeco.com Email: [email protected] Contact: Benjamin K. Wagner [email protected] MR ENR INS LS LDR MS Website: www.bnglegal.com [email protected] [email protected] —————— BF CMA IP RE REG Contacts: Kowit Somwaiya East & Concord Partners —————— Prasantaya Bantadtan Tel: (86) 10 6590 6639 Khin Htwe Myint Email: [email protected] HML Law Firm & Consultants Khin Khin Zaw Contact: Mr. Qi Zhou Tel: (855) 23 220 900 Website: www.lawplusltd.com Website: www.east-concord.com Email: [email protected] Contact: Ms. MAO Samvutheary and BF CMA ENR LDR RE —————— Ms. KANG Leap Website: www.hmllawfirm.com Guantao Law Firm Tel: (86-10) 6657 8066 CMA IP LDR RE TX Email: [email protected] Contact: Xu Ling, Partner Website: http://www.guantao.com/ Volume 13 Issue 10, 2016 45

ASIAN-MENA COUNSEL DIRECT MDS & KhanLex LLP INDONESIA Melli Darsa & Co. 2011 2012 2014 Tel: 1 978 903 3574 Email: [email protected] Ali Budiardjo, Nugroho, Tel: (62) 21 2553 2019 [email protected] Reksodiputro 2013 2014 2015 Email: [email protected] Contact: Enkhbat Batsukh, Partner [email protected] Website: http://www.khanlex.mn Tel: (62) 21 250 5125/5136 [email protected] Email: [email protected] [email protected] HONG KONG [email protected] Clyde & Co. 2013 2014 2015 [email protected] [email protected] Contacts: Emir Nurmansyah [email protected] Tel: (852) 2878 8600 Nafis Adwani Contact: Melli Darsa Email: [email protected] Website: www.darsalaw.com [email protected] Website: www.abnrlaw.com Email: [email protected] MR BF CM CMA ENR PF INV BF CM CMA REG Website: www.clydeco.com —————— —————— AV INS MS LDR RE Assegaf Hamzah & Partners Mochtar Karuwin Komar —————— 2013 2014 2015 2010 2011 2015 Hill Dickinson Hong Kong LLP Jakarta Office: Tel: (62) 21 5711130 in association with Laracy & Co. Tel: (62) 21 25557800 Email: [email protected] / [email protected] Tel: (852) 2525 7525 Email: [email protected] Contact: Emir Kusumaatmadja Email: [email protected] Contacts: Fikri Assegaf ([email protected]) Website: www.mkklaw.net Contact: Ms. Calvin Chan Mr. Damien Laracy Bono Adji ([email protected]) Website: www.laracyco.com Eri Hertiawan ([email protected]) AV BF ENR LDR PF Eko Basyuni ([email protected]) CMA IA LDR MS RE Surabaya Office: —————— Tel: (62) 31 5116 4550 —————— Contact: Yogi Marsono ([email protected]) Soemadipradja & Taher Website: www.ahp.co.id Tel: (62) 21 5740088 P.C. Woo & Co. 2013 Email: [email protected] BF CM CMA LDR PF Contact: Tjandra Kerton Tel: (852) 2533 7700 Website: www.soemath.com —————— BF CMA CM ENR LDR Email: [email protected] Kudri & Djamaris Tel: (62) 21 5225453 —————— Email: [email protected] Website: www.pcwoo.com Contact: Fadriyadi Kudri & Defrizal Djamaris SSEK Legal Consultants Website: www.kndlawyers.com BF CM LDR RE RES 2013 2014 2015 —————— INDIA Tel: (62) 21 521 2038, 2953 2000 Anand and Anand 2014 2015 Leks&Co Email: [email protected] Tel: (62) 21 5795 7550 Contact: Rusmaini Lenggogeni (Managing Partner) Tel: (91) 120-4059300 Email: [email protected] Website: www.ssek.com Email: [email protected] Contact: Eddy Leks Blog: Indonesian Insights Contact: Pravin Anand (Managing Partner) Website: www.lekslawyer.com Website: www.anandandanand.com (http://blog.ssek.com/) CMA E LDR RE RES Twitter: @ssek_lawfirm —————— MR BF CMA E ENR PF —————— MR IP LDR Wiyono Partnership Tel: (62) 21 29021288 —————— Lubis Ganie Surowidjojo Email: [email protected] Contact: Wiyono Sari Clasis Law 2013 2014 2015 2013 2014 2015 Website: www.wiyonolaw.com Mumbai: Tel: (62) 21 831 5005, 831 5025 Tel: (91) 22 4910 0000 Email: [email protected] Email: [email protected] Contacts: Timbul Thomas Lubis, Dr. M. Idwan Contact: Mustafa Motiwala, Partner (‘Kiki’) Ganie, Arief Tarunakarya Surowidjojo, Abdul New Delhi: Haris M Rum, Harjon Sinaga, Rofik Sungkar, Dini Tel: (91) 11 4213 0000 Retnoningsih, Mochamad Fajar Syamsualdi and Ahmad MALAYSIA Email: [email protected] Jamal Assegaf. 2011 2012 2015 Website: http://www.lgsonline.com Albar & Partners Tel: (603) 2078 5588 Contact: Vineet Aneja, Partner MR BF CMA LDR PF RES Email: [email protected] Website: www.clasislaw.com —————— Website: www.albar.com.my MR CMA E INS LDR REG BF CM CMA IF LDR —————— Lubis Santosa & Maramis Law Firm —————— Phoenix Legal 2015 2012 2014 Jayadeep Hari & Jamil Tel: (60) 3 2096 1478 Mumbai: Tel: (62) 21 2903-5900 Email: [email protected] Tel: (91) 22 4340 8500 Email: [email protected] Contact: Jayadeep Bhanudevan Email: [email protected] Website: www.lsmlaw.co.id Website: www.jhj.com.my Website: www.phoenixlegal.in Delhi: CMA ENR IP LDR RE BF CMA ENR LDR RE —————— Tel: (91) 11 4983 0000 Makarim & Taira S. 2013 2014 2015 Email: [email protected] Tel: (62) 21 252 1272, 520 0001 Email: makarim&[email protected] Website: www.phoenixlegal.in Contact: Teddy A. Suprijadi BF CMA ENR INS PF Website: www.makarim.com MR BF CMA ENR PF RE 46 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m

Mah-Kamariyah & Philip Koh SyCip Salazar Hernandez & Kim & Chang 2013 2014 2015 Gatmaitan 2011 2015 2014 2015 Tel: (82-2) 3703-1114 Tel: (632) 9823500; 9823600; 9823700 Email: [email protected] Tel: (603) 7956 8686 Website: www.syciplaw.com Email: [email protected] Website: www.kimchang.com Contact: Adrian Koh (Managing Partner) MR BF CMA E ENR PF Website: www.mkp.com.my MR INV COM CMA IP LDR BF CM CMA LDR RE —————— —————— —————— TAN ACUT LOPEZ & PISON Lee International IP & Law Group Law Offices Raja, Darryl & Loh 2013 2014 2015 Tel: (632) 635-3671 2012 2014 2015 Tel: (603) 2694 9999 Email: [email protected] Tel: (82 2) 2279 3631 Email: [email protected] Email: [email protected] Contact: Martin Pison Website: www.leeinternational.com Contact: Dato’ M. Rajasekaran Website: www.talfirm.com Website: http://www.rajadarrylloh.com COM CM CMA IP RE CMA E IP LDR TX MR CMA IP LDR TX TMT —————— Shin & Kim 2013 2014 2015 Shearn Delamore & Co. SINGAPORE Tel: (82 2) 316 4114 Email: [email protected] 2013 2014 2015 Clyde & Co Clasis Singapore Pte Ltd Contact: Sinseob Kang – Managing Partner Website: www.shinkim.com Tel: (603) 2027 2727 2013 2014 2015 Email: [email protected] MR COM BF CMA LDR RE Contact: Robert Lazar - Managing Partner Tel: (65) 6544 6500 Website: www.shearndelamore.com Email: [email protected] —————— Contact: Brian Nash, Partner MR BF CMA IP LDR RE Website: www.clydeco.com Yoon & Yang LLC 2012 2014 2015 —————— AV CMA IA INS PF Tel: (82 2) 6003 7000 Email: [email protected] Messrs Shook Lin & Bok —————— Contacts: Seung Soon Lim; Seung Soon Choi; Jinsu Jeong 2013 2014 2015 Joseph Tan Jude Benny LLP Website: www.yoonyang.com Tel: (65) 6220 9388 Tel: (603) 20311788 Email: [email protected] MR COM E IP LDR TX Email: (603) 20311775/8/9 Contact: K Murali Pany (Managing Partner) Contact: Managing Partner Website: www.jtjb.com —————— Website: www.shooklin.com.my CMA INS LDR MS RE BF IP LDR Yulchon LLC 2013 2014 2015 —————— Tel: (82 2) 528 5200 Email: [email protected] Trowers & Hamlins LLP SOUTH KOREA Website: www.yulchon.com Tel: (601) 2615 0186 2015 Email: [email protected] Bae, Kim & Lee LLC Contact: Nick White, Partner MR COM CMA IP LDR TX Website: www.trowers.com 2013 2014 2015 LDR RE TAIWAN —————— Tel: (82 2) 3404 0000 Email: [email protected] Deep & Far Attorneys-at-Law ZUL RAFIQUE & partners Contact: Sung Jin Kim Website: www.bkl.co.kr 2013 2014 2015 MR BF CMA IA Tel: (603) 6209 8228 Email: [email protected] —————— Tel: (8862) 25856688 Contact: Ms Mariette Peters Email: [email protected] Contact: Mr. C. F. Tsai BF CMA E LDR RE Cho & Partners 2012 Tel: (82-2) 6207-6800 Website: www.deepnfar.com.tw Email: [email protected] COM CM E IP LDR Contact: Tae-Yeon Cho, Ik Hyun Seo Website: www.cholaw.com IP LDR PHILIPPINES —————— THAILAND Angara Abello Concepcion Regala & Jipyong 2012 Chandler & Thong-ek Law Offices Ltd. Cruz Law Offices 2015 Tel: (82-2) 6200 1600 2013 2014 2015 Tel: (632) 830 8000 Email: [email protected] Tel: (66) 2266 6485 Email: [email protected] Contact: Haeng-Gyu Lee (Partner) Email: [email protected] Contact: Neptali B. Salvanera Website: www.jipyong.com [email protected] Website: www.accralaw.com Contacts: Jessada Sawatdipong; COM BF CMA E LDR Niwes Phancharoenworakul MR CMA E IP LDR TX Website: www.ctlo.com —————— MR BF CMA ENR LDR PF Esguerra & Blanco Law Offices 2015 Tel: (632) 840-3413 to 15 Email: [email protected] Contact: Atty. Abelaine T. Alcantara Website: http://bleslaw.com Volume 13 Issue 10, 2016 47

ASIAN-MENA COUNSEL DIRECT LawPlus Ltd. 2012 2014 2015 — Law Firms — Clyde & Co LLP 2013 2014 2015 Tel: (660) 2 636 0662 MIDDLE EAST Fax: (660) 2 636 0663 Dubai Address: BAHRAIN Email: [email protected] Email: [email protected] Tel: (971) 4 384 4000 [email protected] Trowers & Hamlins Contacts: Kowit Somwaiya Tel: (973) 1 751 5600 Abu Dhabi Address: Email: [email protected] Email: [email protected] Prasantaya Bantadtan Contact: Tracey Bulger, Office Manager Tel: (971) 2 644 6633 Website: www.lawplusltd.com Website: www.trowers.com Contact: Jonathan Silver, Partner BF CMA E IP LDR KUWAIT Website: www.clydeco.com —————— Menwer & Associates MR CMA E IA INS LDR Tel: (965) 22942727 LS Horizon Limited Email: [email protected] —————— Contact: Mr Iftekar Hoque 2013 2014 2015 Website: www.menwer.com Conyers Dill & Pearman Tel: (971) 4 428 2900 Tel: (66) 2627 3443 BF CMA LDR PF RE Email: [email protected] Email: [email protected] Contact: Kerri Lefebvre Contact: Mr. Khemajit Choomwattana OMAN Website: www.conyersdill.com Website: www.lshorizon.com Trowers & Hamlins BF CM CMA INV PF MR CM CMA LDR PF RE Tel: 968 2 468 2900 Email: [email protected] —————— Contact: Tracey Bulger, Office Manager Website: www.trowers.com Siam City Law Offices Limited —————— (SCL Law Group) Tel: (66) 2 676 6667-8 Mahmood Hussain Advocates Email: [email protected] Tel: (971) 4 4228410 Contact: Chavalit Uttasart Email: [email protected] Website: www.siamcitylaw.com Contact: Ms. Kokila Alagh (Managing Partner) Website: www.mahmoodhussain.net VIETNAM UAE —————— Indochine Counsel 2015 Afridi & Angell Trowers & Hamlins LLP 2015 Tel: (971) 4 330 3900 Ho Chi Minh Office: Email: [email protected] Dubai office: Tel: (848) 3823 9640 Contact: Bashir Ahmed, Partner Email: [email protected] Website: www.afridi-angell.com Tel: (971) 4 351 9201 Email: [email protected] Contact: Mr Dang The Duc BF CMA LDR RE REG Contact: Jehan Selim, Office Manager Website: www.indochinecounsel.com Hanoi Office: —————— Abu Dhabi office: Tel: (971) 2 410 7600 Tel: (844) 3795 5261 Email: [email protected] Email: [email protected] Al Safar and Partners Advocates and Legal Consultants Contact: Jehan Selim, Office Manager CMA CM PF Website: www.trowers.com Tel: (971) 4 422 1944 ————— Email: [email protected] — Law Firms — Contact: Kavitha S. Panicker LNT & Partners 2015 Website: www.alsafarpartners.com NORTH AMERICA Tel: (84) 8 3821 2357 CMA IA IP LDR RE Email: [email protected] Contact: Nguyen Ha Quyen Hoang —————— Website: http://lntpartners.com Al Tamimi & Company CANADA MR BF CMA IP LDR RE 2013 2014 2015 Fasken Martineau Tel: (416) 366-8381 ————— Tel: (971) 4 364 1641 Email: [email protected] Email: [email protected] Contact: Mark Stinson, Primary Contact LuatViet Advocates & Solicitors Contact: Husam Hourani, Managing Partner Website: www.fasken.com Tel: (848) 38248440 Website: www.tamimi.com Email: [email protected] BF CMA ENR LDR TMT Contact: Mr TRAN Duy Canh MR BF CMA IP LDR RE Website: http://luatviet.com/ — Law Firms — ————— AFRICA Russin & Vecchi 2015 Alsuwaidi & Company Tel: (971) 4 321 1000 HCM City: Email: [email protected] Tel: (848) 3824-3026 Contact: Mr Mohammed Al.Suwaidi, Email: [email protected] Managing Partner Contacts: Sesto E Vecchi – Managing Partner Website: www.alsuwaidi.ae Nguyen Huu Minh Nhut – Partner JOHANNESBURG Nguyen Huu Hoai – Partner CMA IA LDR MS RE Fasken Martineau Hanoi: Tel: (27) 11 586 6000 Tel: (844) 3825-1700 Email: [email protected] Email: [email protected] Contact: Blaize Vance, Contact: Mai Minh Hang - Partner Regional Managing Partner Website: www.russinvecchi.com.vn Website: www.fasken.com CMA E IP INS TMT CMA E ENR LDR PF 48 ASIAN-MENA COUNSEL w w w. i n h o u s e c o m m u n i t y . c o m