ABLJ Editor – ��߲��

Essar Steel judgment �C paving a way to resolution

ABLJ Editor — Thu, 09 Jan 2020 07:42:07 +0000

The Supreme Court of India recently delivered its much awaited decision in the corporate insolvency resolution process of Essar Steel India. Apart from the fact that this has paved a way for resolution of an astounding amount of about US$500 billion owed to the banks and financial institutions, the judgment is significant for having settled several fundamental aspects of resolution under the Indian Insolvency and Bankruptcy Code, 2016.

The judgment reiterates the supremacy of the committee of creditors (constituted of only the financial creditors of a corporate debtor), in commercial decisions including distribution of proceeds proposed in a resolution plan amongst different classes of creditors and stakeholders, subject to compliance with minimum payment provision with respect to the operational creditors and dissenting financial creditors.

Misha
Partner
Shardul Amarchand Mangaldas

In an earlier decision the Supreme Court in K Sashidhar v Indian Overseas Bank, the Supreme Court had already held that the commercial wisdom of the committee of creditors in rejecting a resolution plan and choosing to put the corporate into liquidation cannot be challenged.

Subsequently, however, the National Company Law Appellate Tribunal (NCLAT) while dealing with the resolution plan of Essar Steel India had held that distribution of resolution proceeds is not a commercial decision and can be judicially reviewed from the touchstone of ��equality�� and ��fairness��.

The Supreme Court, in its Essar Steel India judgement, has, however, clarified that the distribution of resolution proceeds is purely a commercial decision and within the authority of the committee of creditors, and cannot be judicially reviewed, whose jurisdiction is circumscribed in the grounds of review specified in section 30(2) of the Code.

No equality among creditors

The Supreme Court held that there is no equality amongst the financial and operational creditors for distribution of resolution proceeds. The court reiterated that financial and operational creditors are two distinct classes of creditors with separate sets of legal rights under the code, and cannot be treated the same while distributing resolution proceeds under a resolution plan.

The court has, however, clarified that the committee of creditors is expected to apply its mind to the requirement and object under the code for ��balancing the interest of all stakeholders��, and as long as the committee of creditors has duly considered such aspects, the discretion as to what and how much to pay to each class/sub-class is with the committee of creditors, which cannot be judicially reviewed.

Differential treatment

The judgment has also upheld permissibility of differential treatment among financial creditors in a resolution plan on the basis of availability and value of security held by different financial creditors. The court in the facts of the case upheld the classification among secured financial creditors on the basis of differential value of security, while recognizing that if during a resolution process the committee of creditors is not permitted to take into account differential rights and status of secured financial creditors on the basis of availability and value of security, the secured financial creditors will be incentivized to vote against the resolution and choose liquidation, where they can enforce their security.

In the process, the court has also upheld the validity of the amendment to the code, which expressly clarified the same. This comes as a huge relief to the banking industry, as otherwise the NCLAT judgment had mandated equal treatment of all the creditors in a resolution plan, hence abrogating age-long universal principles of the protected status of secured creditors.

Treatment of disputed claims

The Supreme Court also accepted the challenge of the committee of creditors to the decision of the NCLAT, holding that disputed claims can be kept outside the resolution process and pursued against the corporate debtor after approval of a resolution plan.

The court clarified that during the process of insolvency resolution, all claims, whether disputed, unmatured or contingent, need to be accounted for and detailed as part of the information memorandum that forms the basis of a resolution plan and, accordingly, can be dealt with, provided for and extinguished in part or full subject to fulfilment of minimum payment clauses for operational or dissenting financial creditors.

Sanctity of timelines

In response to the challenge to the amendment to the code requiring completion of the insolvency resolution process including legal proceedings within a period of 330 days, the court held that this timeline is mandatory except in exceptional circumstances where the process could not be completed within 330 days on account of factors outside the control of the parties and/or on account of tardy judicial process.

The decision of the Supreme Court on each of the above-mentioned aspects brings in necessary clarity in the rules of resolution under the code and is expected to give a fresh boost to insolvency resolution, which had started to suffer on account of contradictory interpretation of the code, judicial uncertainty and delay.

Misha is a partner in insolvency and bankruptcy practice at Shardul Amarchand Mangaldas

Shardul Amarchand Mangaldas & Co
Amarchand Towers, 216 Okhla Industrial Estate
Phase III, New Delhi, 110020, India

Contact details:
Tel: +919818598427
Email: misha@AMSShardul.com

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Preventing TM dilution into a generic name

ABLJ Editor — Tue, 07 Jan 2020 09:14:59 +0000

Trademarks are valuable tools for enterprises to compete in the market. Much competition centres on trademarks, which gives rise to unfair competition or the act of illegal use of others�� trademarks, especially well-known or famous ones.

As direct infringing and/or counterfeiting acts are increasingly being fought, some enterprises are unscrupulously using indirect means to exploit the name brand effect of well-known or famous trademarks. Enterprises with name brands should, in addition to preventing others�� exploitation, be constantly vigilant for the risk of their trademarks becoming generic names.

Brenda Zhao
Senior partner
Corner Stone & Partners

The risk of a trademark becoming a generic name is a common problem for trademark owners. The main reasons include low distinctiveness of the mark, improper use and management by its owner, intentional dilution by competitors, and long-term monopoly of products. A trademark becoming a generic name can result in loss of the trademark��s functions and use, hence cancellation of the mark, so trademark owners should obviously try to prevent this.?

Article 8 of the PRC Trademark Law specifies that a trademark��s essential feature is that it is able to distinguish the goods of a natural person, legal person or other organization from those of others. Obviously, as a distinguishing mark, a trademark is not the same as a name of a good. In some cases, however, enterprises unconsciously use their trademarks as names of goods, which gradually dilutes the distinctiveness of these trademarks and eventually causes them to become the names of goods.

At this point, the trademarks face the risk of cancellation. Under article 49.2 of the Trademark Law, where a registered trademark becomes the generic name in a category of approved goods, any organization or individual may request that the Trademark Office make a decision to cancel the registered trademark.

If an enterprise��s trademark is frequently used to describe a certain category of good or service, it will probably soon be reduced to the generic name for that category of good or service. In particular, both the scope and the frequency of trademark use are on the increase in the internet era. Thus, famous trademarks of enterprises should avoid or reduce the risk of being diluted into generic names.

Once an enterprise��s name brand is reduced to a generic name, consumers will equate the brand with a certain category of goods, and this brand will, in turn, lose the function of distinguishability from other brands. This means that the trademark of this name brand will no longer be protected by law, and competitors may use it at will.

Such being the case, the value of the trademark, which the enterprise has struggled to establish, will disappear. In practice, trademark dilution often occurs in two circumstances, where new products come on the market, and they are long used by the public. Many trademarks are not generic names in the beginning, but due to improper use and poor brand maintenance by trademark owners, the distinctiveness of the trademarks diminishes and the trademarks become generic names for goods in the end. Examples include the trademarks “Aspirin”, “��” (Chinese pronunciation ��You Pan��, meaning flash disk), and “Thermos”.

In view of the adverse effect of trademark dilution on trademark owners, and even the possibility of trademark cancellation, trademark owners should take the following precautions to prevent their trademarks becoming generic names.

(1) Use highly distinctive, creative devices and words/characters to register trademarks. Reduce the probability of trademarks becoming generic names.

(2) Trademark owners should use their trademarks in the correct and standard way, and tighten the management of their trademarks at the same time. In an advertisement: use a trademark along with a name for goods if any; avoid directly substituting a name for a good with a trademark name, in sales and in the advertisement; and avoid emphasizing the trademark in the advertisement.

(3) In the use of a trademark, follow the trademark with descriptive words/characters concerning the name for the goods to highlight the attribute of the trademark. Always remember to clearly display the sign of registered trademark, ��?��, on the outer packaging and in related descriptions.

(4) In addition to regulating their actions, enterprises should keep a close watch on the market at all times and carry out market investigations. In the event that their trademarks are in danger of becoming generic names, enterprises should proactively take legal measures to protect their rights in a timely manner, stopping others from using their registered trademarks without permission.

(5) Develop the concept of trademark branding and employ a full trademark development strategy. Register a series of trademarks and defensive trademarks on the basis of the principal mark, facilitate product diversification, and nip any risks in the bud.

(6) Stop in a timely manner competitors�� acts of confusing your registered trademarks with goods names and/or descriptive words/characters, or halt the tendency for consumers to use your trademarks as goods names by giving written notice or placing newspaper/magazine advertisements so as to remove the risk of trademark dilution as soon as possible.

Finally, enterprises should not value trademark registration only but neglect trademark use and management, or value brand promotion only but neglect brand protection. They should make all-round arrangements to ensure their trademarks remain their valuable brand assets.

Brenda Zhao is a senior partner at Corner Stone & Partners

Corner Stone & Partners
1905, Tower B, Tian Yuan Gang Centre,
No. 2 Dongsanhuan North Road, Chaoyang District,
Beijing 100027, China
Website:
Contact details:
Tel: +86 10 84464600 ext. 806
Email: brenda.zhao@cornerstoneip.com.cn

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Considering a start-up business or IPO in Taiwan?

ABLJ Editor — Tue, 07 Jan 2020 08:34:18 +0000

Companies incorporated in the Cayman Islands have long been a popular choice as listing vehicles on most of the world’s major stock exchanges, including the Taipei Exchange (TPEx) and the Taiwan Stock Exchange (TWSE).

Ever since Maples and Calder, the Maples Group��s law firm, acted as the Cayman counsel on the pioneering listing of the first Cayman Islands company on the Taiwan Stock Exchange in 2010, more than 100 Cayman Islands companies have followed suit and listed or registered on the TWSE and TPEx.

Juno Huang
Of counsel
Maples Group

Deals involving Taiwan��s technology and other start-up ventures have long used Cayman Islands companies within their deal structures to take advantage of the myriad benefits associated with the jurisdiction.? This trend has intensified and Cayman Islands incorporated vehicles have increasingly been the jurisdiction of choice for start-up companies and venture capital investments.

Taiwan’s top 10 most promising new technology start-ups, including Appier, CoolBitX, iStaging Corp, UMBO CV and Gogoro �C a Taiwan-based electric scooter company, which is said to be Taiwan��s next technology unicorn �C are all incorporated in the Cayman Islands.

Why are Cayman Islands companies so attractive to Taiwanese start-ups, particularly those with an eye on being listed on stock exchanges in Taiwan or elsewhere?

Here are a few reasons:

- There is no minimum paid up capital requirements, other than an entirely nominal amount;
- The share capital of the company may be denominated into any currency, including New Taiwan dollars;
- Shares can be given a very small par value (e.g. US/NT$0.001 per share), and shares can be issued at any price that is not less than par, the result being that the subscription price for shares can be very cheap. This makes it easy to incentivize employees via flexible employee stock option plans, which provide for shares to be issued to employees upon vesting at a low exercise price;
- Shares can be issued for cash or non-cash consideration. They may be issued in exchange for the shareholder contributing technology, know-how or services, with the only requirement being that the directors believe that the value of such consideration is sufficient to pay the price of the shares, and that this is in the best interests of the company;
- A Cayman Islands company can be incorporated quickly and inexpensively, within one day. The continuing obligations following incorporation are not onerous, for example: only one director is required who does not need to be a resident in the Cayman Islands; it is not necessary to hold annual general meetings of shareholders; and it is not necessary for the company��s accounts to be audited or filed with any authorities in the Cayman Islands;
- Well-recognized legal concepts (including limited liability and separate corporate personality) underpin Cayman Islands companies, and decades of experience and extensive due diligence have demonstrated to investors that these foundations are solid and reliable;
- Cayman Islands law provides a framework that can be adapted to give effect to investors�� requirements, such as bespoke share transfer restrictions (including pre-emption, drag-along and tag-along rights), corporate governance arrangements to protect investor rights (including deadlock resolution and reservation of particular matters for shareholder approval) and tailor-made exit plans (including rights of redemption or repurchase). This enables the constitution of start-up companies to be tailored to reflect the commercial intentions of the parties;
- The flexible nature of Cayman Islands corporate law allows funds to be returned easily to investors, for example, simple dividend rules allow dividends to be distributed out of profits or share premium, subject only to solvency. Similarly, funds can be returned to investors via share redemptions and repurchases, which can be hard-wired into the company��s constitution;
- Exiting upon listing is possible in most of the world��s major stock exchanges. The listing and ongoing requirements of any listing rules across the globe can easily be met within the legislative framework of the Cayman Islands;
- Cayman Islands is a tax-neutral domicile. There are no additional layers of tax or withholding tax in the jurisdiction; and
- No government or regulatory approvals are required in the Cayman Islands in order for a Cayman Islands company to be used as a listing vehicle or as a special purpose vehicle (SPV) in Taiwan or elsewhere. Even if a Cayman company is listed (in Taiwan or elsewhere), Cayman does not impose a double layer of regulation.

The Cayman Islands was an early adopter of both the Foreign Account Tax Compliance Act and Common Reporting Standards, and continues to demonstrate commitment towards increased transparency in the financial services industry by implementing laws to ensure that the jurisdiction remains at the forefront of compliance with global standards.

The Cayman Island’s commitment to implement a global standard to adhere to today��s legal and global regulatory demands, coupled with its strong track record in Asia, means that market participants in Taiwan will continue to look to the Cayman Islands as a jurisdiction of choice for structures across a range of sectors, in particular early stage and venture capital start-up companies.

Juno Huang is an of counsel at Maples Group in Hong Kong.

Maples Group
53/F, The Centre,
99 Queen��s Road Central
Hong Kong

Contact details:
Tel: +852 3690 7431
Email: juno.huang@maples.com

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Ease of doing business in the Philippines

ABLJ Editor — Tue, 07 Jan 2020 07:56:46 +0000

How difficult is it to do business in the Philippines in comparison to other economies?? One way to answer this complex question is to look at the annual ease of doing business ranking issued by the World Bank in its Doing Business 2020 report.

This index ranks almost all of the world��s economies according to how easy it is to do business. It is based on a study of laws, regulations and practices in a given country, taking into account the following factors: starting a business; dealing with construction permits; getting electricity; registering property; getting credit; protecting minority investors, paying taxes, trading across borders; enforcing contracts; and resolving insolvency.

Paula P Plaza
Associate
ACCRALAW

In other words, the rankings are used as an indicator of the simplicity of business laws and regulations, and the level of protection for businessmen and their property rights. As such, the rankings are often cited by legislators as a catalyst for the issuance of new laws and regulations to facilitate ease of doing business.

In the Doing Business 2020 report, the Philippines ranked 95^th out of 190 economies. Although this ranking was a significant improvement from last year��s performance, the Philippines still ranks last among the founding members of the Association of Southeast Asian Nations. Singapore is ranked second, Malaysia 12^th, Thailand 21^st, and Indonesia is in 73^rdplace.

According to the World Bank, it takes an average of 13 procedures to start a business, nine procedures to register property, and 22 procedures to build a physical establishment in the Philippines. Once the business has been set up, the company makes 13 annual tax payments. If a contract is broken and a business needs to resolve a dispute with its customers or suppliers, it takes an average of 962 days to resolve an issue through our courts.

These inefficiencies have long been sought to be corrected by different congresses. Fortunately, the Ease of Doing Business and Efficient Government Service Delivery Act of 2018 was signed and became effective on 17 June 2018. The Implementing Rules and Regulations (IRR) were passed on 17 July 2019.

The IRR seeks to provide simple and straightforward regulations for entrepreneurs, micro, small and medium-sized businesses and ordinary citizens:

All government agencies and offices in the Executive Department, including local government units (LGUs) and government-owned or controlled corporations that issue licences, clearances, or permits (LCPs) to business entities, are covered.
Each agency/office must submit a Citizen��s Charter, which outlines a comprehensive checklist of requirements, step-by-step procedures, and a schedule of fees.
There are prescribed processing times for LCPs �C a maximum of three working days for simple applications, seven working days for complex applications, and 20 working days for applications that require technical evaluations and other conditions, subject to qualifications.
Each agency/LGU must adopt a zero-contact policy where interactions between applicants and government employees are limited. Electronic submission of requests and requirements is preferred.
Upon lapse of the processing time, the submission of complete documents and payment of all fees, the LCP is automatically deemed approved or extended.
The IRR prescribes penalties for: (1) refusal to accept applications/requests and to act on them despite complete submission of documents and payment of fees; (2) failure to give written notice of disapproval; (3) imposition of additional irrelevant requirements or costs; (4) failure to render service during regular working hours and within prescribed processing times; (5) failure or refusal to issue receipts; and (6) colluding with fixers. The penalties range from administrative liability and six months suspension to criminal liability, dismissal and perpetual disqualification to hold public office, imprisonment for up to six years and a fine of not more than US$40,000.
A Unified Business Application Form will be used in processing new applications and renewals. This consolidates all the information for an application such as local taxes and clearances, sanitary permits, zoning clearances and the like. In the same vein, there are streamlined procedures for securing fire safety clearances.
The IRR establishes a National Policy on Anti-Red Tape and Ease of Doing Business. This refers to a comprehensive business registration and regulatory management policy to improve competitiveness and ease bureaucratic and regulatory burdens on businessmen. It also adopts a whole-of-government approach, where agencies focus on providing integrated and streamlined public services.
Finally, the IRR creates an Anti-Red Tape Authority and Advisory Council. Essentially, these bodies implement the IRR and craft policies on business registration and regulatory management.

Any significant improvement in the ease of doing business in the Philippines requires a whole-of-country effort. The efforts by legislators, government agencies and private corporations are a welcome start to improving the business climate. Hopefully, these efforts will significantly reduce the entry barriers to businesses, which, ultimately, will lead to economic efficiencies for the benefit of the ordinary Filipino.

Paula P Plaza is an associate in the Litigation and Dispute Resolution Department of ACCRALAW Offices.

ACCRA Law Offices
22nd Floor, ACCRALAW Tower, 2nd Avenue corner
30th Street, Crescent Park West, Bonifacio Global City,
1635 Taguig, Metro Manila, Philippines

Contact details:
Tel: +63 (2) 830-8000
Email: ppplaza@accralaw.com

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Proposed changes to Philippine design application filings

ABLJ Editor — Tue, 07 Jan 2020 07:35:43 +0000

The Philippine Intellectual Property Office (IPOPHIL) recently extended an invitation to the public for consultation on a number of proposed amendments to existing rules and regulations relating to copyrights, prosecution of patent and trademark applications, inter partes proceedings, increased official fees, and others. One proposed amendment introduces a change in the procedure for obtaining a design registration.

The proposed amendment is included in the Revised Implementing Rules and Regulations for Patents, Utility Model and Industrial Designs (IRR), which states:

��Rule 1703. Registration of Utility Model and Industrial Design without Adverse Information. Where the application meets all the formal requirements for registrability as set forth in these Regulations and the Office does not receive any adverse information from the concerned community after the expiration of the 30-day publication period,?the Director shall decide whether or not to register the utility model or industrial design. For this purpose, the Director may issue a registrability report?motu proprio (amendment underscored).

In the current IRR the applicant for industrial design is automatically granted a registration after the lapse of 30 days from the date of publication if no one files an adverse information. The proposed rule change now gives the Director of the Bureau of Patents the power to issue a Registrability Report motu proprio on a formally compliant design application before the registration is granted.? As worded, the proposed amendment gives the director the sole option of issuing a registrability report after the adverse information period.

Mila Federis
Managing partner
Federis & Associates

The amendment also authorizes the director to deny registration outright without issuing a registrability report. It remains to be seen how this rule change, if implemented, will impact the appetite of the community for design protection, or the rate of design filings in the Philippines, which has dramatically increased in recent years.

All the publicly available statistics point to a significant increase in the number of design applications being filed worldwide annually in the past decade. While high-income economies like US, China, Japan, South Korea and Germany lead in the number of increased design filings, recent IPOPHIL statistics show that the trend is no different in the Philippines.

Records show that 1,393 design patent applications were filed in 2017, and 1,522 were filed in 2018. The number of design patent applications filed by foreign or non-resident innovators during the past three years beginning 2016/2017 has increased with 516 applications being filed in 2016, and 666 in 2017. The total applications filed for 2018 was still higher than 2017, with resident applicants�� filings reaching 877, thereby compensating for the slight decrease in applications filed by non-residents at 645 applications.

Everyone recognizes the important role that design plays in the world economy today. There is no longer any disagreement as to the immense value of a great design as a tool used by a company to differentiate its products and services from those of its competitors, for building a brand, and for achieving a competitive edge in the marketplace.

To encourage companies to continue innovating through the use of design, governments must have comprehensive laws that will protect designs, and reasonable application processes that will provide easy access to design protection.

As a notable example, Japan��s government has recently published key changes to its design law. Unlike in the Philippines, design applications in Japan go through substantive examination. Because of the high level of creativity required of designs in Japan, a 15-year term for design protection has been perceived as inadequate because examinations sometimes take time.

The recent change increasing the term of protection from 15 years to 25 years from filing date addresses this concern. All the proposed amendments in Japan are meant to encourage more design filings, because the number of applications in Japan has decreased during this decade.

The term for design protection in the Philippines is 15 years, but because there is no substantive examination the applicant gets to enjoy a long period of protection, as the application is automatically granted registration when formal requirements are complied with, and when no adverse information has been filed within 30 days from date of publication.

With the proposed amendment, the grant of registration becomes uncertain because the director has the power to deny an application with or without a registrability report. While an appeal is available after denial, filing becomes impractical because of the possibility of delays in resolution.

Some opinions have been expressed that the proposed amendment is meant to discourage applicants from filing protection for designs that are not new. Because there is no substantive examination that will involve research for prior art at examination level, the IPOPHIL is concerned that there may be registered designs that do not comply with this requirement.? If this were true, the proposed amendment will be a first step in solving this concern.

Mila Federis is the founder and managing partner of Federis & Associates.

FEDERIS & ASSOCIATES
Suites 2004 and 2005, 88 Corporate Centre
141 Valero St, Salcedo Village
Makati City 1227, PhilippinesContact details:
Tel: +63 2 8896197-98
Email: mfederis@federislaw.com.ph
Fax: +63 2 8896132

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The winners are��

ABLJ Editor — Mon, 06 Jan 2020 08:30:39 +0000

China Business Law Journal presents the results of our inaugural awards for prominent in-house counsel in China. Richard Li reports

For the past 10 years China Business Law Journal has been reporting on the crucial role played by in-house counsel in crafting deals and managing the complex legal structures that underpin the success of their organizations. During this time, the prominence of China-based in-house legal teams has increased markedly, yet the recognition they receive is still not commensurate with the immense contribution they make.

To redress this situation, and meet strong demand for an independent and impartial assessment of the work undertaken by in-house legal teams, China Business Law Journal is proud to present the inaugural CBLJ In-house Counsel Awards. This initiative has been undertaken to raise the profile of in-house counsel and give them much-deserved recognition for their achievements. Unlike lawyers in private practice, in-house counsel are required not only to have first-rate legal acumen, but also to fully understand, and play a leadership role in, the operation of their companies. We hope these awards will encourage the continued development of in-house legal teams and promote awareness within the legal and business professions of the tremendous value they bring to their organizations.

Our methodology

Faced with the challenge of objectively assessing the achievements of in-house lawyers and legal teams at domestic and international companies across China, we conducted an extensive survey of our readers in China and beyond, asking them to nominate the teams and individuals that deserve recognition. We received more than 1,000 nominations from Chinese and foreign private practice lawyers, in-house counsel and senior business executives. After scrutinizing the nominations, we reached out to the shortlisted in-house counsel with a detailed questionnaire about their responsibilities and professional achievements in the past year.

The awards are split into individual and team awards, and then into practice area and industry categories. For teams, practice area categories include: Banking & Finance; Capital Markets; Compliance; Data Protection; Dispute Resolution; Intellectual Property; Mergers & Acquisitions; Restructuring; and Securitization. Team industry categories include: Aviation, Logistics & Shipping; Consumer & Retail; Education; Energy & Natural Resources; Healthcare & Life Sciences; Industrials; Insurance; Internet & E-commerce; Media, Entertainment & Sports; Real Estate & Construction; and Technology & Telecoms.

For individual awards, practice areas include: Capital markets; Compliance; Data Protection; Dispute Resolution; Intellectual Property; Mergers & Acquisitions; Restructuring; and Securitization. Individual industry categories include: Aviation, Shipping & Logistics; Construction & Infrastructure; Consumer & Retail; Energy & Natural Resources; Financial Services; Healthcare & Life Sciences; Industrials & Chemicals; Internet & E-commerce; Media, Entertainment & Sports; Real Estate; and Technology & Telecoms.

To select the winners, our editorial team then evaluated the responses across several key performance parameters. Our award categories include In-house Team of the Year and General Counsel of the Year, as well as highly commended teams and individuals in key practice areas and industry sectors. We also identify 10 up-and-coming in-house lawyers in our Rising Stars category. We are confident that the results provide an authoritative benchmark of excellence for China��s in-house legal profession, and we offer our whole-hearted congratulations to all the winners.

Performance Parameters

In our survey we asked respondents to rate the teams and individuals on several key performance parameters. We evaluated individual and team nominees on the basis of the following criteria:

Performance parameters for individuals

Legal knowledge

Communication skill

Leadership skills

Creativity/innovation

Breadth of jurisdiction/practice areas/industries

Performance parameters for teams

Legal knowledge

Efficiency/creativity

Team depth and strength

Breadth of jurisdiction/practice areas/industries

Use of technology

Impact and significance

Winner highlights

Given the constraints of space, it is difficult to reveal every important achievement of all the winners. Therefore, we chose to highlight some of the significant achievements of a selection of winners. Meituan Dianping general counsel Song Zhe, who was adjudged the General Counsel of the Year, has built an enviable legal team at Meituan, growing the group from dozens of employees to nearly 100. A highlight of his tenure was the Meituan Hong Kong public offering in September 2018. The deal, which kicked off in March 2018, was successfully completed in a short period of six months. The legal department also released independent privacy policies for all consumer products and services of Meituan to improve technical protection of users�� personal information.

��Song Zhe and his litigation team are able to effectively and rapidly respond to emergencies and protect the interest of the company by active response to litigation, initiation of proceedings and other means, including legalizing new employment modes by judicial decisions and arbitration awards,�� says Andrew Zhang, a Beijing-based senior partner at Commerce & Finance Law Offices. ��In this way, the legal department creates a stable legal environment for the business operations of Meituan.��

Song is also the winner in the Internet & E-commerce industry sector category, and highly commended in the Data Protection, Capital Markets, and M&A categories. His team is also highly commended in the Capital Markets and Internet & E-commerce categories.

Chinese conglomerate JuneYao Group��s legal and compliance team won the In-house Team of the Year award. A notable achievement of the team was providing legal assistance to JuneYao��s cross-shareholding deal with China Eastern Airlines �C the two companies participated in each other��s non-public offering, and JuneYao transferred part of the shares of JuneYao Airlines to China Eastern Airlines.

��Throughout this cross-shareholding project, our team encountered lots of legal issues that are hardly ever encountered by most corporate counsel,�� says Hope Hang, general counsel of JuneYao Group��s legal and compliance team.

��For example, we needed to judge whether such a cross-shareholding with China Eastern Airlines, a giant in the airline industry, meant we needed to do concentration filing according to relevant antitrust regulations,�� she says. Hang is highly commended for her expertise in the Aviation Logistics & Shipping, and Capital Markets categories. The JuneYao team is also highly commended in the Capital Markets, Securitization, Industrials, Education, and Aviation Logistics & Shipping categories.

Lu Yuping, legal director of TOTO (China), is appreciated for his understanding of the sanitary ware industry. ��Lu has developed original and insightful views on the legal matters concerning IP determination and protection in the sanitary ware industry. His open-mindedness and ability to take others�� perspectives enable him to give explicit and persuasive instructions on all legal advice we offer,�� says Simon Tsi, the Beijing-based managing partner of Chang Tsi & Partners.

Lu is a winner in the Intellectual Property category, and highly commended in the Industrials & Chemicals category. His team is also highly commended for their work in Intellectual Property.

Su Wang, the vice-president and head of the legal and IP group of JD.COM, is the winner in the Data Protection category. In May 2018, the EU General Data Protection Regulation (GDPR) came into effect, significantly impacting internet companies running businesses in Europe. Prior to GDPR, the legal and IP group of JD.COM published the first all-round analysis of GDPR in China. In the meantime, the legal and IP group overhauled the overseas e-commerce website of JD.COM for compliance in accordance with GDPR.

Su��s team is the winner in Internet & E-commerce, and is highly commended in Data Protection and Intellectual Property.

Xu Xiaobin, legal director of JA Solar, is the winner in the Energy & Natural Resources and Restructuring award categories. JA Solar privatized and delisted from the Nasdaq in 2018. Its plan of backdoor listing on the A-share market was approved with conditions by the China Securities Regulatory Commission (CSRC) in September 2019. In this line of capital operation, Xu and his team members offered legal support throughout the successful privatization and swiftly dismantled the overseas red-chip structure of JA Solar within three months of the privatization.

In October 2018, Haier Smart Home became the first Chinese company to list on the China Europe International Exchange (CEINEX), in what has come to be known as a D-share offering. This offering worth about �278 million (US$308.4 million) of D-share stocks kicked off the A+D (A and D-share offerings) listing mode.

According to Sibyl Yang, global general counsel and chief compliance officer of Haier Smart Home, ��China and Germany have different securities regulation environments and, therefore, there was no precedence for this IPO on the D-share market, either at the regulation level or the execution level.��

Led by Sibyl Yang, the legal team of Haier was able to tackle many new legal problems encountered in the process. Yang is a winner in the Industrials & Chemicals and Capital Markets categories, and was highly commended for her M&A work.

Shanghai Electric Power��s legal team is a winner in the Energy & Natural Resources category, and Wu Ming, the utility��s chief legal counsel, is the Compliance category winner and is highly commended in the Energy & Natural Resources, Dispute Resolution and M&A categories. Shanghai Electric Power��s legal services sharing centre, officially set up in October 2018, was the first of its kind in central state-owned enterprises. Serving as a law practising platform for in-house legal counsel, the legal services sharing centre further enhances the professionalism and intensification of in-house legal services.

Tony Shang, general manager of the legal department of Agile Group, and his team were clear winners in the Real Estate category for individuals, and Real Estate & Construction category for teams, respectively. What is also notable about Agile��s legal team is its fantastic rate of success in dispute resolution. Shang and his team handled 3,743 new lawsuits or arbitration cases within the whole group between January 2018 and February 2019, with a total value of about RMB1.2 billion (US$171.4 million). Impressively, the legal team won 96.93% of the self-represented cases and 99% of active litigation cases. In 2018, the legal team recovered about RMB249 million for the company through active litigations and saved about RMB80 million for the company in passive litigations.

This outstanding record made Shang the winner in the Dispute Resolution category, and he was also highly commended for his M&A expertise. His team was highly commended in the Securitization category.

Peter Su, general counsel for Tsinghua Tongfang, and his team helped the company in a number of complicated and important transactions, and in executing several strategic partnership agreements, making him the winner in the Mergers & Acquisitions (M&A) category. Some of the notable deals Su and his team led were: Tongfang Financial Holdings�� (a wholly owned subsidiary of Tsinghua Tongfang) acquisition of shares in Guodu Securities; Cool Clouds�� (a wholly owned overseas subsidiary of Tsinghua Tongfang) acquisition of a 27.62% stake in China Medical & Healthcare Group; and Universal Axis�� (a wholly owned overseas subsidiary of Tsinghua Tongfang) investment into Tiancheng International Investment.

Su was also highly commended in the Internet & E-commerce, Healthcare & Life Sciences, and Capital Markets categories.

China Resources Enterprise��s general counsel, David Cheng, and his team swept the Consumer & Retail categories, winning both the individual and team awards. Among their standout deals was the long-term strategic partnership arrangement with Heineken, the second-largest brewer in the world, in August 2018, which involved the transfer of shares, antitrust filings, IP licensing, regulation of a listed company and other legal affairs, and was subject to regulations of China and Hong Kong, and the listing rules of Euronext. A highlight of the deal was how Cheng and his team co-ordinated with various departments in the course of their antitrust review and obtained unconditional approval from China’s State Administration for Market Regulation faster than the market average.

Jiang Jingjing, a Hong Kong-based partner of King & Wood Mallesons, says: ��We have been providing legal services for establishment of the consumer goods US dollar funds of China Resources Enterprises for the past three years. In the process, we have gained a full perspective on the professionalism and dedication of every member of the legal department of the company, and especially Cheng, who as the general counsel replied to emails, attended teleconferences, asked substantial questions and proposed solutions from time to time. Cheng played an irreplaceable role in the smooth closing of the deal.�� Cheng is also highly commended in the Restructuring and Mergers & Acquisitions categories, and his team is highly commended in the Intellectual Property category.

Ma Yihan, vice president and general counsel of Perfect World Investment & Holding Group, won the Media, Entertainment & Sports category and was highly commended in Intellectual Property, while her team was highly commended for their expertise in Media, Entertainment & Sports. The legal department of Perfect World supported the successful organization of the Dota 2 Asia Championship, CSGO Asia Championship and other large-scale e-sports tournaments. Its services concern the intellectual property of the championships and their whole-process operation. According to Ma, legal service for e-sports competitions is a cutting-edge field.

��The Perfect World team is one of the few professional legal teams that are capable of independent legal support to the world��s top e-sport competitions,�� she says. ��It has co-ordinated the introduction, determination, protection, licensing and safeguard of multiple IPs involved in e-sport competitions.

��It has also provided legal support for issues involving venues, competitors, artists, performances, tickets, insurances, and live broadcasting and rebroadcasting in relation to e-sports competitions.��

Under Aaron Shao, the Greater China head of legal at Abbott, the company��s Greater China legal team played a big role in ensuring compliance with China��s new cybersecurity law across different business units in China. This included a huge data-mapping exercise related to how the company collects, processes, stores and transfers data in and out of China. With such early efforts, Abbott’s in-house team set the standard for a robust programme complying with the cybersecurity law �C a model that other multinational companies are following. Their work led Shao and his team to win the Healthcare & Life Sciences category for both individual
and team awards.

Beijing Capital general counsel Shao Li and her team helped enhance the risk prevention and control ability of this infrastructure company. With project companies and investment teams valuing investment more than operations, and valuing pre-contract affairs more than post-contract management, Shao and her team actively pushed forward to establish a legal risk prevention and control mechanism covering the whole life cycle of a project. With this mechanism, legal counsel can participate in the whole process of investment, construction and operation, identify legal risks in each stage, and make layout and plans in advance.

Shao is a winner in the individual Construction & Infrastructure category, and is highly commended in Dispute Resolution and M&A.

The legal department of China Literature, led by general legal counsel Wang Zheng, assisted the company in its acquisition of 100% of equity in New Classics Media. In this acquisition, Wang and his team were required to pay attention not only to legal issues relating to investment but also to those regarding compliance of listed companies. Given that New Classics Media would become a part of China Literature, Wang and his team reviewed the materials in advance and proposed a framework agreement of related-party transaction that was applicable to the target, so as to avoid the problems relating to related-party transactions.

Wang is highly commended in Internet & E-commerce, Intellectual Property, Compliance and Dispute Resolution. His team is highly commended in the Securitization category.

Dong Jianjun, general manager of the legal affairs department at Industrial and Commercial Bank of China (ICBC), and his team successfully handled a number of cross-border major risk events and effectively helped the ICBC mitigate legal and reputation risks. Dong and his team also saved substantial losses and maintained the reputation of the ICBC by directly tackling some litigation cases against the bank and its branches. Their work recovered non-performing assets, overcoming numerous challenges in maintaining the bank’s asset quality and stability. Dong is a winner in the individual Financial Services category, and is highly commended in Dispute Resolution. His team wins the Banking & Finance category, and is highly commended in Capital Markets and Dispute Resolution.

The legal department of Sinochem International Corporation, led by Allen Jiang, won the coveted Mergers & Acquisitions category and is highly commended for their work in the Restructuring and Industrials categories. The team played an important role in the process of all investments, financing and equity sale transactions of Sinochem and its group entities. Some of its top deals included: the outright sale of its subsidiary Sinochem Logistics; the issue of US$300 million worth of five-year overseas bonds; the acquisition of an 80% stake in Junsheng New Energy Science & Technology; and the acquisition of Elix Polymer.

Shawn Zhao, vice president and Greater China general counsel of Schneider Electric, and his team played an important role in helping the company achieve strategic transformation goals such as providing legal support to complex M&A and strategic alliance projects, and being involved in the whole life cycle of transactions including structuring analysis, negotiations, signing, antitrust filing, closing and integration post-closing. Their work covers a wide range of transactions such as cross-border equity acquisition, M&A, loans, asset divestitures, green-field JVs, JV buyouts, and IP licensing. Zhao��s team is a winner in Data Protection, and is highly commended in the Mergers & Acquisitions and Industrials categories.

Electric carmaker NIO��s legal team, led by general counsel Liu Fang, won in the Capital Markets category on the back of their highly successful IPO on the New York Stock Exchange in September 2018. The IPO took only six months from kick-off to listing and raised about US$1.15 billion for the company. It was one of the fastest Chinese concept stocks to list in North America. The NIO legal team is also highly commended in the Industrials category.

Joe Zhou is the managing director and head of legal department of China International Capital Corporation Hong Kong (CICC Hong Kong), which provided significant advice and support in a number of large IPOs, privatization deals and bond offerings in the Hong Kong capital market. Most of the transactions involved complicated structures, and cross-board regulatory issues and risks. Working with business departments, the legal department overcame difficulties and ensured effective risk control management. Zhou��s team is highly commended in the Capital Markets category.

Cheney Xu is the Asia-Pacific and Greater China IP senior counsel at IBM. Xu and his team are responsible for managing all the IP work of IBM in Asia-Pacific. They actively offer advice and suggestions on the formulation of IP policies, and laws and regulations, to legislators in Asia-Pacific countries. Xu and his team most notably provided advice and suggestions on the amendment of the Patent Law in China including revision of guidelines for patent examination and rules on prohibiting abuses of dominant market positions in China. Xu��s team won the Intellectual Property category and was highly commended in the Technology & Telecoms category.

Emerging talent

China Business Law Journal has also made an effort to identify the up-and-coming counsel who have made an impact on the market. Among them, Wang Qianqian, legal counsel at Doublestar Group, was highly appraised by Wang Bo, her supervisor and general counsel of the group. ��In Doublestar��s cross-border acquisition of Kumho Tire, Wang demonstrated outstanding coordination and ability. Using her rich experience in overseas acquisition and professionalism, she actively communicated and positively interacted with the legal teams and made accurate and professional decisions on key issues,�� he says.

Jason Shi, senior counsel of Qualcomm, is another of the young counsel who made a mark with his work in the US$150 million IC test project of the company in the Shanghai Waigaoqiao Bonded Area. Shi and his team played a dominant role in the legal structure design, government review and approval, and equipment import for the project. They integrated legal risk management and daily operation processes of acquired companies, including Atheros, CSR, and RF360. They have been working on the integration after the acquisition of NXP.

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Insolvency rules issued for financial services providers

ABLJ Editor — Fri, 20 Dec 2019 08:21:43 +0000

The presence of insolvency rules for non-financial companies in the form of the Insolvency and Bankruptcy Code, 2016 (IBC), and the lack of similar rules for financial companies led to a peculiar dichotomy. The IBC has been seen in most circles as a progressive move, and despite issues involving implementation is largely considered a success. In contrast, the high-profile collapse of a number of large financial sector entities, and the lack of such rules for financial sector entities has dampened investor and creditor confidence. Recent decisions in various fora have also seen creditors of financial sector entities pulling in different directions, thereby severely affecting potential recovery measures. While the government had introduced the Financial Resolution and Deposit Insurance Bill, 2016, to deal with the winding up of financial sector entities, this was later withdrawn after much controversy.

Sawant Singh
Partner
Phoenix Legal

In exercise of powers under section 227 of the IBC, which enables the government to extend it to insolvency and liquidation proceedings of financial service providers or categories of financial services providers, the Ministry of Corporate Affairs issued the Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority) Rules, 2019, on 15 November. The rules deal with insolvency and liquidation proceedings of financial service providers under the IBC, and extend the application of certain provisions of the IBC, such as on the corporate insolvency resolution process, liquidation process and voluntary liquidation process to financial service providers with some modifications.

The rules prescribe that a corporate insolvency resolution process can be initiated only upon application being made by the appropriate regulator. Such an application will be dealt with in the same manner as an application by a financial creditor. Upon admission, the relevant bench of the National Company Law Tribunal (NCLT) may appoint an administrator based on the recommendation of the appropriate regulator to exercise the powers and functions of an insolvency professional, resolution professional or a liquidator for the purpose of insolvency and liquidation proceedings. The rules also prescribe an interim moratorium from the date of the making of the application until its admission or rejection. This interim moratorium will have the same effect as a moratorium under section 14 of the IBC, including prohibiting the institution or continuation of suits, encumbering any assets, and taking any foreclosure or enforcement action.

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Sawant Singh and Aditya Bhargava are partners in the Mumbai office of Phoenix Legal. Sristi Yadav, an associate, also provided assistance on the article.

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Examining validity of West Bengal��s HIRA Act

ABLJ Editor — Fri, 20 Dec 2019 08:13:42 +0000

The West Bengal Housing Industry Regulation Act, 2017 (HIRA), was notified on 1 June 2018. Section 20 of which established the Housing Industry Regulatory Authority (authority). The statute regulates all projects above 500 square metres or more than eight apartments in total, and section 3 requires them to be registered with the authority. HIRA intends the authority to regulate and promote real estate in West Bengal state in a transparent manner by protecting the interest of consumers.

From the start, it appears that the government contemplated constituting a sub-committee in the central advisory council with the objective of persuading the West Bengal government to adopt the Real Estate (Regulation and Development) Act, 2016 (RERA), in place of its own legislation. However, the Supreme Court recently admitted a plea challenging the constitutional validity of the HIRA and has directed the West Bengal state and the central government to respond (Forum for People��s Collective Efforts (FPCE) and Anor v The State of West Bengal and Anor).

Vikram Wadehra
Partner
Vidhii Partners

The petitioner argues that the central government��s RERA is an exhaustive and complete code and that there is no scope for similar legislation to be enacted in a state, except in circumstances where article 254(2) of the constitution applies. Article 254 recognizes the possibility of repugnancy arising between laws made by state and central legislatures. In such cases the law enacted by the central legislature would prevail. The only exception to this is where the law enacted by the state legislature has received the assent of the president; in that case the law enacted by the state legislature would prevail, unless parliament subsequently enacts any law with respect to the same matter. This would include any law adding to, amending, varying or repealing the law so made by the legislature of the state.

It is argued that HIRA was neither reserved for consideration of the president nor had the assent of the president ever been obtained. Even more pertinently, RERA was in force before the state of West Bengal enacted HIRA. It is also argued that HIRA is in direct conflict with the earlier enacted RERA. The conflict between the two statutes includes such differences as the sale of open car parking spaces as opposed to garages with walls and roofs, the compounding of offences, which courts should try such offences and the definition of force majeure events. Both HIRA and RERA were enacted with similar objectives, that is to ensure better accountability to consumers and to regulate and promote the real estate sector. The question to be decided is what happens where there is inconsistency or repugnancy.

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Vikram Wadehra is a partner and head of the Kolkata office of Vidhii Partners. Nupur Rathi is an associate at the firm.

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Perils of company buyback in venture capital financing

ABLJ Editor — Fri, 20 Dec 2019 07:47:53 +0000

You just have raised a new round of financing for your company at a rich valuation. It has been a particularly hard and well-fought negotiation with your investors. Before the celebrations can begin, however, you should pause and look closely at the exit waterfall in your shareholders�� agreement.

Companies and founders are required, often on a best-effort basis, to provide an exit to investors by conducting an initial public offer, or facilitating a trade sale (that is finding a willing buyer for investors�� securities) before the expiry of a predetermined period. As fallback, the exit waterfall, among other exit rights, requires the company to buy back investors�� securities, often at the prevailing fair market value. If this sounds innocuous you should think again, this time considering the implications of accounting standards. Under generally accepted accounting principles compulsorily convertible preference shares (a type of financial instrument that a company issues to a non-resident investor) form part of the company��s share capital and are recorded as equity in the balance sheet. This well-established position could now be undone because of the provisions of Indian Accounting Standard 32 (IndAS32).

Siddharth Seshan
Counsel
Samvad Partners

IndAS32 applies to any unlisted company with a net worth of at least ?2.5 billion (US$34.9 million) and a maximum of ?5 billion. If a company meets this threshold in any financial year, compliance with IndAS32 will be mandatory from the following financial year in producing its financial statements. IndAS32 classifies financial instruments into financial liabilities, financial assets or equity instruments. These terms have been comprehensively defined in IndAS32, but the following simple explanations will be sufficient. A financial liability is the existence of a contractual obligation to deliver cash or another financial asset to another entity. An equity instrument means any contract that evidences a residual interest in the assets of an entity after deducting all of its liabilities. Emphasis has been placed on looking at the substance of a financial instrument rather than its form when classifying such a financial instrument as either an equity instrument or financial liability in the company��s balance sheet.

Moreover, financial instruments containing contingent settlement provisions are classified as financial liabilities under IndAS32. In this regard, a company��s obligation to buy back investors�� securities, as specified in the exit waterfall of a shareholders�� agreement, is a contingent settlement provision for two reasons. Firstly, the company has a contractual obligation to deliver cash to investors and to buy back investors�� securities based on the outcome of uncertain future events that are beyond the control of the company and the holders of the financial instruments. Examples would be the completion of an initial public offering, or trade sale, both of which would depend on market conditions among other factors. Secondly, the company does not have an unconditional right to refuse payments to the investors and to buy back their securities.

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Siddharth Seshan is a counsel and Tushar Gogoi is an associate in the Bengaluru office of Samvad Partners.

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Tribunals are here to stay, but with improvements

ABLJ Editor — Fri, 20 Dec 2019 07:33:19 +0000

A constitution bench of the Supreme Court recently delivered its judgment relating to tribunalization of justice. This judgment has put to rest the existentialist challenges to this institutional development, embracing ��tribunals�� as a part of the justice delivery system while recommending ways of strengthening them. The majority opinion was authored by Chief Justice Ranjan Gogoi with justices Dhananjaya Chandrachud and Deepak Gupta giving concurring opinions.

The Supreme Court studied the evolution of tribunals globally and in India. Tribunals emerged around 1873 to deal with technically specialized trade disputes involving monopolistic railway companies. They have spread across sectors due to the need for specialization in complex commercial/technical issues �C offering cheaper, speedier, and more accessible alternative means of dispute resolution. Tribunalization in India began in the 1940s with the Income Tax Appellate Tribunal. Justice Chandrachud described the genesis of tribunals as an answer to the challenges thrown up by the complexities of social and economic offerings.

Amit Kapur
Managing partner
J. Sagar Associates

Certain aspects seem to have eroded the stature and efficacy of tribunals that are quasi-judicial in nature. These include the selection process, terms/entitlements, security of tenure and lack of autonomy (for creating and upgrading infrastructure; hiring of staff; computerization and other facilities). Courts have felt that where the subject matter does not involve any specialized technical expertise and knowledge, tribunals handling disputes? must be staffed with judicial members with standing commensurate to the task at hand. Technical members must be appointed where justifiable but not to reduce the tribunals to sinecure for retiring loyal bureaucrats. In this context, superior courts often looked at tribunals/quasi-judicial authorities as somewhat inferior cousins. Further, due to the absence of a unifying statute, there is a lack of uniformity in over 40 statutory tribunals, commissions and authorities �C each established under different enactments, bringing significant anomalies and distortions.

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Amit Kapur is a joint managing partner at J. Sagar Associates. The author��s views are personal and not attributable to the firm.

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ABLJ Editor – ���߲�����

Essar Steel judgment �C paving a way to resolution

No equality among creditors

Differential treatment

Treatment of disputed claims

Sanctity of timelines

Preventing TM dilution into a generic name

Considering a start-up business or IPO in Taiwan?

Ease of doing business in the Philippines

Proposed changes to Philippine design application filings

The winners are��

Our methodology

Performance Parameters

Winner highlights

Emerging talent

Insolvency rules issued for financial services providers

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Examining validity of West Bengal��s HIRA Act

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Perils of company buyback in venture capital financing

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Tribunals are here to stay, but with improvements

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ABLJ Editor – ��߲��

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