China Business Law Podcast: Recent Episodes
Art Dicker, Agnes Wang
The China Business Law Podcast brings you a real world perspective on how business law is applied on the ground in China. Guests include both in-house and law firm professionals. The show has two hosts. Art Dicker is a lawyer residing in China for 13 years with prior experience at Morrison & Foerster Beijing and Asia Pacific General Counsel in Shanghai for Cadence Design Systems. Agnes Wang is a lawyer in China responsible for legal and regulatory matters managing teams across multiple locations.
The Asia-Pacific in-house legal market has changed significantly in recent years. Regional headquarters are becoming more fragmented, companies are controlling costs, and the traditional path from China counsel to regional general counsel is no longer as predictable as it once was.
In this episode of the China Business Law Podcast, Art Dicker speaks with returning guest Sherry Xu, an experienced in-house legal recruiter now based in Singapore, about how legal professionals should navigate this changing environment.
Sherry explains why some senior lawyers may need to reconsider their expectations regarding compensation, titles and geographic scope. In some cases, accepting a lower salary may provide the management experience, broader responsibility or general counsel exposure needed for long-term career development.
The conversation also explores what separates effective in-house lawyers from those who struggle during periods of business transformation. Technical legal knowledge is no longer enough. Lawyers must be able to read people, understand competing stakeholders, manage their emotions and offer practical solutions rather than simply identifying risks.
Art and Sherry discuss the difficult position of regional counsel who must balance their obligations to global legal leadership with the needs of local business teams. They also share practical advice on building credibility with sales teams, prioritizing urgent matters, understanding commercial incentives and becoming a trusted business partner.
For mid-level and senior lawyers considering their next career move, this episode offers a candid look at the realities of today’s legal employment market—and the skills needed to remain valuable in an increasingly uncertain business environment.
Connect with Yuxing
Zhong Lun Law
In this episode of the China Business Law Podcast, we're joined by Yuxing Ye, a senior counsel at Zhong Lun with over 17 years of experience in cross-border mergers and acquisitions (M&A). We discuss his early career, starting from his stint in Singapore, and how the rise of China's economy influenced his return to Beijing and subsequent focus on cross-border M&A. Yuxing details the evolution of China's outbound investments, from high-tech sectors to renewable energy, and the geopolitical and regulatory challenges involved. He also explains the review processes by Chinese regulatory bodies like MOFCOM, NDRC, and SAFE, and the financing strategies for infrastructure and energy projects. Practical aspects of navigating legal and regulatory frameworks in host countries, especially in developing regions, are also covered. Listeners gain a comprehensive understanding of the complexities and strategies in cross-border M&A, particularly in the energy sector.
In this episode of the China Business Law Podcast, we're joined by Ying Zeng, a partner in the Dispute Resolution Practice Group at Han Kun Law Offices. Ying brings extensive experience in commercial dispute resolution in both the US and China. She shares her journey into international arbitration, her role in managing cross-border disputes, and the transformations in legal practices she's witnessed over the years. We delve into the nuances of handling litigation strategies, the evolving landscape of Chinese companies involved in overseas disputes, and the recent developments in enforcing foreign judgments in China. Ying also provides practical advice on choosing between arbitration and litigation and highlights the importance of effective communication between local and foreign counsel in cross-border cases.
Empowering Chinese American Lawyers: A Conversation with Amy ChenWelcome to another insightful episode of the China Business Law Podcast. Today, we are thrilled to have Amy Chen, a prominent legal professional and co-founder of the Chinese American Lawyers Association of Orange County (CALA). In this interview, Amy shares her extraordinary journey in the legal realm and her vision for empowering Chinese American contributions within the legal community.
Meet Amy ChenConnect with Amy
CALA Website
Amy Chen is not just any lawyer; she is a trailblazer in advocating for Chinese American voices within the legal industry. As the president of CALA, she is passionate about creating platforms that connect Chinese American legal professionals and fostering growth within this community. Her legal career spans from major law firms in Hong Kong to influential in-house roles in tech companies.
A Legal Path Influenced by Family and CultureAmy’s legal journey started with an interest in business and China during her college years, which led to an inspiring stint at a law firm in Hong Kong. This experience cemented her decision to pursue law, fueled by both professional aspirations and family legacy—particularly her grandfather's groundbreaking achievements as a lawyer in Europe. Amy studied law at Columbia and began her career at Simpson Thacher before transitioning to pivotal roles in technology firms, including Alibaba during its formative years.
Building Bridges Through CALAThe idea for CALA originated over lunch with a fellow lawyer, where they identified a need for a platform dedicated to addressing Chinese American legal challenges in Orange County. Starting with drafting bylaws, the association quickly evolved with a mission to develop, empower, and elevate the contributions of its members to the legal and civic landscape.
Challenges and Opportunities in the Legal FieldAmy's career has seen significant shifts due to changing US-China relations, pushing her towards advocacy and community-focused efforts. She highlights barriers faced by Chinese American lawyers, such as underrepresentation in the upper echelons of the legal field and societal biases. CALA aspires to tackle these issues through professional development programs, legal education, and community engagement.
Inspiring the Next GenerationFor aspiring lawyers, Amy offers invaluable advice: approach the legal profession with eyes wide open. It's a demanding field that requires a commitment to learning and a skill set that includes relationship-building and staying informed about global and industry-specific trends. Crucially, she stresses the importance of cultivating a network and finding mentors.
Moving Forward: Advocacy and CollaborationWhile still in its infancy, CALA has ambitious plans to delve into advocacy, especially around pressing issues such as immigration and civil rights. The organization is also forging partnerships with other legal bodies and community groups to enhance its impact and outreach.
Join the MissionUnder Amy’s leadership, CALA is on the path towards significant contributions to the legal community and beyond. For those interested in joining or learning more, Amy and CALA welcome engagement through their website at calaoc.org. Together, they are redefining the narrative and presence of Chinese American professionals in law and civic spaces.
Thank you to Amy Chen for sharing her journey and insights. Her story is a powerful reminder of how dedication and community can drive impactful change. If you're interested in learning more about CALA's work or want to get involved, reach out through their website.
Timestamps
00:00 Introduction and Guest Welcome
00:34 Amy Chen's Journey into Law
03:22 Transition to In-House and Tech Industry
04:24 Return to the US and Continued China Focus
09:21 Founding the Chinese American Lawyers Association
16:42 Asian American Representation in Law Firms
17:08 Professional Development Initiatives
18:29 Community Engagement and Civic Involvement
18:41 Addressing Societal Bias and Discrimination
21:32 Cultural Values and Corporate America
25:08 Advocacy and Legal Parameters
26:59 Collaboration with Other Organizations
29:10 Advice for Aspiring Lawyers
33:04 Conclusion and Contact Information
ProducerJacob Thomas
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Innovative Wealth Planning: Legal Perspectives with Henry Ji and Amber GuanWelcome to another insightful episode of the China Business Law Podcast. Today, we are privileged to host two exceptional legal experts, Henry Ji and Amber Guan, from Zhong Lun Law Firm. With their extensive expertise in wealth planning, they provide unique insights into the legal perspectives of managing wealth for high net worth individuals in China.
Meet Our Experts: Henry Ji and Amber Guanguanxin@zhonglun.com
https://en.zhonglun.com/team/henryji.html
Henry Ji, a partner at Zhong Lun, and Amber Guan, a managing associate, are pioneers in the domain of private wealth planning. Both are dually qualified to practice law in China and New York State, USA, bringing a robust international perspective to their practice. Over the past eight years, they've been at the forefront of advising Chinese high-net-worth families and multinational companies on wealth planning.
Emerging Trends in Wealth PlanningIn recent years, the focus of wealth planning in China has shifted from primarily wealth creation to more comprehensive strategies involving family asset protection, governance, and succession planning. Henry highlights the evolution in this field, particularly noting the change during the rapid capital market expansion and IPO activities from 2012 to 2021. Today, families seek integrated structures that address multiple needs like control, tax efficiency, and succession.
Handling Cross-Border Wealth ChallengesAmber elaborates on the complexities of managing cross-border investments and assets. With varying legal systems and regulatory environments, cross-border wealth planning poses unique challenges. The divergence in these frameworks, coupled with China's strict currency controls, makes compliance a sophisticated process requiring coordination among legal, tax, and other professionals.
Ensuring Compliance Amidst ScrutinyIn the face of increasing scrutiny from both Chinese and foreign governments, compliance becomes imperative. Henry and Amber stress the significance of strict adherence to legal and regulatory frameworks to avoid administrative or criminal liabilities. They emphasize the necessity for transparency, proper documentation, and alignment with international tax and reporting standards.
Asset Protection Strategies for Chinese ClientsFor high net worth individuals, asset protection is a primary concern. Both experts recommend the use of trusts and insurance products as effective mechanisms. They advise on restructuring corporate governance and shareholding arrangements to safeguard personal assets and prevent business liabilities.
Collaboration for Comprehensive Wealth PlanningWealth planning is multifaceted, involving legal advice, financial strategies, and tax implications. Henry and Amber work closely with financial advisors and tax experts to provide comprehensive solutions that are both legally sound and financially strategic. This collaborative approach ensures tailored solutions that align with clients' long-term objectives.
Personalized Wealth Planning StrategiesEvery family is unique, and so are their wealth planning needs. The experts at Zhong Lun prioritize understanding each client's personal, family, and business landscapes to design strategies that are custom-fit. Whether the goal is protecting a family business, facilitating succession, or ensuring regulatory compliance, their approach is highly personalized.
Building Long-Term Client RelationshipsTrust is the cornerstone of successful wealth planning, particularly in the realm of high net worth individuals. Henry and Amber emphasize building long-term relationships through consistent, reliable, and discreet services. They maintain regular communications and reviews to adapt to clients’ evolving needs.
Contacting Zhong Lun for Wealth Planning ExpertiseFor those interested in leveraging the expertise of Henry Ji and Amber Guan in navigating the complexities of wealth planning in China, they welcome inquiries through email. Henry's contact details can be found on the Zhong Lun website, while Amber can be reached at guanxin@zhonglun.com. Their proficiency in legal nuances and dedication to client objectives make them invaluable allies in wealth management.
Timestamps
00:00 Introduction and Guest Welcome
00:26 Guest Backgrounds and Expertise
03:25 Current Trends in Wealth Planning
06:41 Challenges in Cross-Border Wealth Planning
10:17 Ensuring Compliance with Regulations
13:47 Strategies for Asset Protection
16:37 Balancing Legal and Financial Advice
19:58 Succession Planning Concerns
24:26 Personalizing Wealth Planning Strategies
27:20 Building Long-Term Client Relationships
30:33 Conclusion and Contact Information
ProducerJacob Thomas
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Dispute Resolution in China with Andy HanWelcome to another episode of the China Business Law Podcast. In this episode, we are privileged to host Andy Han, a partner at Allbright Law with expertise in cross-border dispute resolution involving China. His insights offer a deep dive into the intricacies of navigating legal disputes in the region.
Introducing Andy HanConnect with Andy
Allbright Law
Andy Han brings over a decade of experience as an attorney in China, specializing in cross-border disputes and transactions such as M&A and Foreign Direct Investment (FDI) projects. His career journey provides him with a unique perspective on the challenges and resolutions in the legal landscape across borders, particularly during pivotal periods such as the COVID-19 pandemic.
The Landscape of Cross-Border Dispute ResolutionDuring the COVID-19 pandemic, Andy aided foreign clients in navigating disputes arising from cross-border transactions, specifically the acquisition of medical supplies from China. He reflects on the spike in such disputes due to the urgent demand for medical products and the subsequent quality issues that arose.
His expertise is not limited to dispute resolution; Andy also emphasizes the importance of drafting robust contracts. He recommends clearly defining dispute resolution clauses within contracts, choosing between litigation or arbitration carefully, based on applicable laws and enforceability.
Choosing Between Arbitration and LitigationA significant part of cross-border contract negotiations involves deciding on dispute resolution mechanisms. In particular, Andy advises against including both litigation and arbitration in a single clause under Chinese law, as this can invalidate the litigation choice. Factors to consider include the nature of the dispute, cultural factors, and language.
For example, in cases with a foreign element, foreign arbitration centers in third countries like Singapore or Hong Kong might be preferred for neutrality. However, if the contract involves purely domestic issues, Chinese arbitration centers or courts are advisable.
Enforcing Arbitration Awards in ChinaAndy shares insights into the enforcement of arbitration awards within China. For domestic awards, enforcement is typically straightforward without the need for additional recognition processes. However, enforcing foreign arbitration awards can be more complex, often involving recognition by Chinese courts under the New York Convention.
Recent trends show improvement in the enforcement of foreign arbitral awards, with a success rate over 90% in certain scenarios. Yet, challenges remain, such as proper notification to respondents in defaults or exceeding the scope of the arbitration agreement.
Practical Advice for Foreign EnterprisesBeyond addressing disputes, Andy stresses the importance of preventive measures. Conducting thorough background checks on potential business partners can preemptively mitigate risks. Additionally, recognizing fully foreign-owned enterprises in China as domestic companies can influence the governance and dispute resolution approaches.
Proactive Measures and Government InitiativesThe Chinese government is increasingly supportive of foreign arbitration centers establishing branches within China, facilitating a more integrated and accessible legal framework. This aligns with broader efforts to attract international business and enhance trust in China’s legal system.
Final Thoughts and Reaching OutAndy Han encourages foreign in-house counsel to carefully consider dispute resolution clauses during negotiations and remain proactive in preventing disputes. For further guidance, Andy can be reached through LinkedIn or his firm's contact details.
Timestamps
00:00 Introduction and Guest Welcome
00:15 Andy's Background in Cross-Border Dispute Resolution
01:59 Key Considerations in Cross-Border Contracts
03:26 Litigation vs. Arbitration in China
07:50 Enforcement of Arbitration Awards in China
18:49 Trends and Practical Advice for Foreign Companies
24:24 Final Thoughts and Contact Information
ProducerJacob Thomas
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Resolving Corporate Conflicts in China with Tim Yiming LiuWelcome to another episode of the China Business Law Podcast! This episode features an insightful discussion with special guest Tim Yiming Liu, a partner at Global Law Office in Shanghai. We dive deep into aspects of cross-border dispute resolution and Tim’s extensive experience in the field, providing listeners with expert knowledge on navigating the complexities of legal disputes involving Chinese and foreign clients.
Introduction to Tim Yiming LiuSend Tim an Email: timliu@glo.com.cn
Tim Yiming Liu is a seasoned partner at Global Law Office in Shanghai, specializing in China domestic and cross-border dispute resolution. His clients include high-profile companies such as ByteDance, Goldman Sachs, Nomura, SoftBank, Lenovo, Nestle, and Amazon, to name a few. With a professional background that spans over two decades, Tim’s expertise lies in resolving disputes from corporate governance, shareholder rights, and complex M&A transactions to liquidation and bankruptcy issues.
Tim’s Journey in Dispute ResolutionTim began his career as a transactional lawyer, engaging in M&A, private equity, and venture capital deals. With changes in the global business landscape, Tim transitioned into dispute resolution, leveraging his cross-border qualifications and his sharp acumen in business law. As someone fluent in both English and Chinese, he adeptly manages Chinese and international client perspectives, offering a unique dual representation advantage in arbitration and litigation.
The Landscape of Cross-Border Legal DisputesDuring the podcast, Art and Tim explore various challenges that arise during cross-border legal disputes. Common cases Tim handles include corporate and commercial disputes, shareholder disagreements, and M&A conflicts. Art delves into how foreign enterprises face litigation challenges in China and how Chinese firms confront unique obstacles in international jurisdictions, highlighting issues such as service of process, discovery, and interim measures.
Challenges with Discovery and Data SecurityArt and Tim explore the discovery process, a crucial yet complex element of cross-border litigation. Chinese companies often struggle with discovery requirements in foreign jurisdictions due to unfamiliarity and cultural differences in legal procedures. The protection of sensitive business data, constrained by China’s stringent cybersecurity and data security laws, often complicates evidence submission in cross-border disputes.
Insights on Attorney-Client PrivilegeThe concept of attorney-client privilege differs notably between jurisdictions like China and the U.S. While U.S. law offers robust protections, Chinese law does not formally recognize such privileges, compelling Chinese firms to adapt by involving U.S. counsel in applicable scenarios to benefit from this protection in cross-border disputes.
Strategies for Dispute Resolution and SettlementTim emphasizes the importance of strategic decision-making in dispute resolution, particularly concerning jurisdiction and enforceability. Chinese courts, especially in metropolitan areas, are adept at handling complex commercial disputes impartially, offering a compelling venue for legal proceedings, depending on asset location and enforceability concerns.
Calculating the Cost and Strategy of SettlementsAn integral part of Tim’s litigation strategy involves continuous assessment of settlement options throughout the legal process. Factors such as litigation cost, potential outcomes, and the overarching business relationship often guide the decision to pursue settlement negotiations, balancing cost efficiency with optimal resolution outcomes.
ConclusionThis episode offers a treasure trove of insights for legal professionals and businesses alike, emphasizing the nuanced landscape of cross-border legal disputes. Tim’s expertise and strategic approach shine a light on the critical considerations for navigating international legal waters effectively.
Timestamps
00:00 Introduction and Guest Introduction
01:03 Tim Yiming Liu's Professional Journey
03:25 Common Cases and Disputes
06:45 Challenges in Cross-Border Disputes
10:00 Discovery and Data Compliance
20:20 Attorney-Client Privilege and Legal Strategies
22:26 Litigation and Arbitration Strategies
29:08 Settlement Considerations
34:08 Conclusion and Contact Information
ProducerJacob Thomas
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Chinese Multinationals and US Laws with Li JiOn today’s episode of the China Business Law Podcast we are privileged to speak with Professor Li Ji from the UC Irvine School of Law. Professor Li shares insights from his comprehensive book, "Negotiating Legality: Chinese Companies in the U.S. Legal System," exploring the intricate challenges and strategies of Chinese multinational companies operating in the United States.
Introduction to Professor Li JiRead Negotiating Legality
Professor Li Ji is a respected authority on the legal dynamics faced by Chinese companies in the U.S., having transitioned from a career in corporate tax law to academia, with a focus on compliance and legal risks. His research provides a nuanced understanding of how these companies navigate the U.S. legal environment while maintaining ties to Chinese cultural norms.
The Role and Influence of In-House CounselOne of the key topics of our discussion revolved around the qualifications and influence of in-house counsel at Chinese companies in the U.S. Many companies do not employ full-time in-house counsel due to cost concerns, and those that do often prefer lawyers with Chinese backgrounds to bridge cultural differences effectively. This bicultural fluency aids them in educating headquarters about the legal risks of conducting business in the U.S.
Interaction Patterns with U.S. Legal SystemsChinese companies often face a geopolitical and cultural learning curve when engaging with the U.S. legal system. Professor Li highlights their initial hesitance to escalate disputes due to a normative reluctance to litigate, which may be perceived as a weakness. Over time and through experience, however, these companies adapt to a more U.S.-style cost-benefit analysis.
Litigation and Regulatory ChallengesLitigation, particularly in intellectual property, product liability, and contractual disputes, varies widely based on industry. Chinese multinationals must comprehend the demanding nature of U.S. litigation, notably the expansive discovery process. A combination of internal adaptation and expert external counsel is crucial for successfully navigating these challenges.
Choosing the Right Legal RepresentationThe dual institutional pressures from both Chinese and U.S. norms implicate the selection of legal representation. While large multinationals might partner with major law firms familiar from their home country, smaller firms lean towards cost-effective, flexible solutions. The trust and cultural familiarity are pivotal in building enduring relationships with external counsel.
Adapting to a Changing Geopolitical ClimateIn light of evolving U.S.-China relations, Chinese companies must strategically manage their U.S. operations. This includes structuring businesses to mitigate risks associated with their Chinese identity, such as establishing operations in neutral territories like Singapore or Switzerland.
ConclusionProfessor Li Ji's insights underscore the complexities and dynamic adaptations required by Chinese multinational companies operating in the U.S. legal landscape. His book, "Negotiating Legality: Chinese Companies in the U.S. Legal System," is crucial reading for understanding these transitions. We encourage our listeners to delve into the book for a deeper exploration of these themes.
Timestamps
00:00 Introduction and Guest Welcome
00:58 Professor Li Ji's Background and Career
02:09 Chinese In-House Counsel in the U.S.
03:58 In-House Counsel's Role in Decision Making
08:23 Challenges for Chinese Companies with Outside Counsel
19:09 Litigation and Legal Risks for Chinese Companies
25:00 Navigating U.S. Regulations and Government Interaction
33:58 Conclusion and Book Promotion
ProducerJacob Thomas
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Insights into One of China’s Largest Foreign Investments: A Conversation with Lyon DongWelcome to anotherepisode of the China Business Law Podcast! This time, we're joined by Lyon Dong, an esteemed partner and head of the Cross-Border Transaction Department at Grandall Law Firm. In this episode, we delve into one of the most intricate and monumental legal transactions in recent history: the acquisition by Aramco of a 10% interest in Rongxiang Petrochemical.
Introduction to Lyon DongLyon is a seasoned transaction lawyer with a unique blend of PRC and U.S. legal expertise. With over 16 years in the cross-border M&A field, Lyon leads a team at Grandall that boasts a robust portfolio and client base. His experience and bicultural understanding have made him a pivotal figure in international legal negotiations.
The Aramco Deal: A Case Study in ComplexityThe Aramco purchase of a 10% interest in Rongxiang Petrochemical for over $3 billion was a high-profile, complex transaction. It required navigation through multiple layers of legal structuring and involved significant government approvals.
From Opportunity to ExecutionLyon recounts how the transaction, initially stalling due to communication barriers with local counsel, was revitalized. His team stepped in through a combination of industry connections and sheer luck, and with the backing of their reputable firm.
Government Involvement and Cultural NuancesA significant aspect of this deal was the necessity to align with Chinese governmental interests. This transaction was not just a business maneuver but a diplomatic engagement, demonstrating the strengthening Sino-Saudi relations.
Bridging Cultural Communication GapsLyon emphasizes the importance of bicultural competence in cross-border negotiations. Effective communication transcends language, requiring an understanding of cultural contexts and negotiation styles. This became crucial in aligning both the Saudi and Chinese parties.
Overcoming Unexpected ChallengesThe Role of Luck and ExpertiseLyon openly attributed a portion of his team’s success to luck but made it clear that expertise and preparation were indispensable. Securing the deal required deft handling of unexpected regulatory and logistical challenges.
Government and Regulatory NavigationNavigating the bureaucratic landscape was a formidable challenge. Approval processes from multiple governmental bodies had to be synchronized with commercial interests, underlining the importance of strategic planning and timing.
The Critical Importance of TimelinesThe deal was tightly bound to a timeline dictated by Rongsheng's leadership, emphasizing the pressure to expediently manage multi-jurisdictional regulatory approvals and secure financial transactions.
Conclusions and ReflectionsLyon’s story is a testament to the intricacy and excitement of cross-border M&A transactions. His ability to manage the multifaceted challenges demonstrates why he is a leading figure in this field. This episode serves as an invaluable resource for businesses and legal professionals looking to understand the nuances of international transactions.
If you're seeking the expertise of a seasoned lawyer with a deep understanding of international business law, or you’re just fascinated by high-stakes legal maneuvering, this episode offers a wealth of insights.
Timestamps
00:00 Introduction and Guest Welcome
00:40 Lyon Dong's Background and Career
02:04 The Aramco-Rongxiang Deal: An Overview
03:10 Challenges and Misunderstandings in the Deal
08:33 Negotiation Dynamics and Cultural Differences
14:29 The Role of Government and Regulatory Approvals
31:00 Logistics and Timezone Management
46:36 Understanding the Crude Oil Sales Agreement (COSA)
48:24 Regulatory Challenges and Strategic Planning
49:24 Anti-Monopoly Concerns and Legal Strategies
50:30 Navigating Reporting Obligations
52:26 The Importance of Legal Counsel and Client Communication
01:02:20 National Security Review and Approval Process
01:08:00 Stock Exchange Approval and Final Hurdles
01:25:36 Closing the Deal: Final Steps and Reflections
ProducerJacob Thomas
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Co-hosts Art and Iris talk with Bingtao Li, General Counsel at BASF Shanshan Battery Materials Co., Ltd, a joint venture of BASF in China which specializes in the R&D, production and sales of lithium battery cathode materials. On what it takes to be an effective general counsel in China, especially at a Sino-foreign joint venture. A great episode you won't want to miss.ProducerJacob ThomasFollow UsLinkedInApple Podcasts
China's New Company Law: Impacts and Implications with Expert Camille XuIn this episode of the China Business Law Podcast, guest expert Camille Xu from Yingke Law Firm, provided an in-depth analysis of the significant changes to the China company law. With her vast experience in corporate law, Camille offers critical insights into how these amendments will impact businesses operating in China, particularly foreign-invested enterprises.
Connect with Camille
Visit Yingke
Introducing Camille XuCamille Xu, a seasoned attorney based in Shanghai, has spent over a decade at top-tier European law firms before joining Yingke as a partner. Her expertise lies in assisting foreign companies with their operations in China, covering areas such as corporate, contract, and labor law. Xu brings a nuanced understanding of the recent changes to the company law that are crucial for businesses to navigate effectively.
Major Changes in Capital Contribution RequirementsOne of the pivotal changes discussed during the podcast is the revised capital contribution requirements. Previously, companies were required to make real contributions of capital within a specified time, but the 2013 reforms allowed for subscriptions of capital with flexible deadlines. However, the new law reintroduces a statutory requirement for capital payment within five years, reverting to stricter control measures to curb market chaos and avoid shell companies with unpaid capital posing as substantial entities.
Xu advises companies to reassess and possibly reduce their registered capital to align with their actual business needs, helping to mitigate risks under the new legal framework.
Enhanced Protections for Minority ShareholdersThe updated law aims to reinforce the rights of minority shareholders, notably extending the right to access accounting documents rather than mere account figures. This change enhances transparency and allows minority shareholders to access essential documents such as invoices and contracts, improving their ability to protect their interests.
The law also includes provisions that enable minority shareholders to challenge invalid resolutions and demand timely profit distributions, along with mechanisms for share buybacks in cases of major strategic changes like mergers.
Fiduciary Duties and Corporate GovernanceXu discusses how the revised law strengthens fiduciary duties, emphasizing the responsibilities of directors and senior management to act with loyalty and diligence. Notably, the law introduces the concepts of de facto and shadow directors, ensuring that those exerting control behind the scenes are held accountable.
The amendments aim to curb the frequent practice of appointing nominal directors who lack real authority or understanding of company affairs, thereby protecting the company and its stakeholders from potential misconduct and negligence.
Introduction of the Audit CommitteeTo streamline corporate governance, the new company law allows companies to establish audit committees instead of traditional boards of supervisors. This move is intended to enhance efficiency by involving professionals with accounting and management expertise to oversee corporate operations.
Xu explains that these changes are poised to simplify company structures and improve oversight by relying on professionals already integrated into the company's board.
Employee Representation on the BoardOne of the significant new provisions is the requirement for companies with over 300 employees to include an employee representative on the board. Although still in its early stages, this change is designed to give employees a voice in corporate governance, although the specifics of implementation remain to be detailed.
Flexibility with Share ClassesThe law now permits greater flexibility regarding share classes, aligning more closely with international standards. Companies can issue shares with varying rights concerning dividends, voting, and liquidation, enhancing the attractiveness of investments and facilitating smoother operations for startups and foreign enterprises.
Advising Clients on Compliance and StrategyCamille Xu stresses the importance of revising corporate bylaws in light of the new company law. Companies need to ensure compliance, particularly regarding capital contribution timelines, appointment of management roles, and equity transfer provisions. She emphasizes the need for companies to adapt their internal governance to align with the stringent requirements introduced by the new law.
ConclusionThe comprehensive changes to China's Company Law present both challenges and opportunities for businesses operating in the region. By updating their internal policies and legal strategies to reflect these changes, companies can position themselves for compliance and growth in China's rapidly evolving business landscape. For more in-depth guidance, Camille Xu is available for consultations via email, with her contact details accessible in the podcast show notes for listeners seeking further advice.
Timestamps
00:00 Introduction and Guest Welcome
00:27 Camille Xu's Background and Expertise
01:10 Overview of Changes in Company Law
01:31 Capital Contribution Requirements
04:17 Impact on Small and Foreign Companies
11:48 Protection for Minority Shareholders
19:56 Fiduciary Duties and Legal Responsibilities
26:49 Role of Supervisors and Audit Committees
30:18 Employee Representation on Boards
33:00 Flexibility in Share Classes
37:58 Advising Clients on New Company Law
42:54 Conclusion and Contact Information
ProducerJacob Thomas
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Navigating Arbitration Awards in China: Insights from the China Business Law PodcastWelcome to another episode of the China Business Law Podcast. In this episode, we talk with Yanqi Qiyan, a seasoned partner at Tahota Law Taihe Tai, one of China's premier law firms. We explore the complex terrain of arbitration awards in China and offer invaluable guidance for companies dealing with cross-border legal challenges.
Connect with Yan
Visit Tahota
Email Yan
Meet Yanqi QiyanYanqi Qiyan brings over 15 years of extensive experience in Chinese and international law. Her journey commenced as a law counsel at a US international law firm in China, eventually transitioning to key in-house roles at multinational corporations. Yan's expertise spans international practices, mergers, acquisitions, and general corporate matters, making her an ideal voice on disputes concerning arbitration awards in China.
Understanding China's Stance on Arbitration AwardsOne of the chief topics addressed in this episode is the importance of arbitration awards for foreign companies dealing with Chinese entities. Art and Yan delve into the mechanisms by which arbitration awards can be recognized in China, emphasizing China's participation in the New York Convention. This treaty, unlike the situation with foreign court judgments, ensures a framework for the enforcement of international arbitration awards within China.
China's Legal Framework: An OverviewYan elaborates on China's legal framework for recognizing foreign arbitral awards, highlighting the significance of the Supreme People's Court's notice and the incorporation of these regulations into China's civil procedure law. Five key issues have been addressed within Chinese law to facilitate the implementation of the New York Convention, ensuring clear guidelines for the recognition and enforcement of commercial arbitration awards.
Comparing Arbitration Awards and Court JudgmentsThe podcast contrasts the relatively straightforward process for arbitration awards with the complexities of enforcing foreign court judgments, which rely on bilateral treaties or reciprocal relations. Yan clarifies how the absence of a treaty between countries like the US and China can impact the enforceability of judgments and emphasizes the value of understanding these distinctions for businesses navigating cross-border disputes.
Practical Steps to Enforce a Foreign Arbitration Award in ChinaYan outlines the procedural steps involved in getting an arbitration award recognized in China, including the need to ensure its effectiveness and the importance of having all relevant documents notarized and consularized. The discussion also touches on China's accession to the Hague Convention, simplifying certain processes for Hague member countries.
Potential Pitfalls: Grounds for RefusalWhile the process is generally smooth, certain grounds can lead to the refusal of recognizing a foreign arbitration award. Yan highlights Article 5 of the New York Convention, which lists potential reasons for refusal, such as the invalidity of the arbitration agreement or procedural irregularities.
New Developments: Foreign Arbitration in ChinaA notable development is Shanghai's recent legal ruling that permits foreign arbitration commissions to conduct ad-hoc arbitrations within China. This change could significantly streamline the enforcement process, rendering foreign arbitral awards more akin to Chinese awards in terms of recognition, thus saving time and reducing costs.
Strategic Considerations and the Role of Public PolicyArt and Yan delve into the strategic considerations for companies deciding between arbitration inside or outside China. Important factors include the need for speed, confidentiality, and how public policy could impact the enforceability of awards. Yan offers insights into how China's public policy considerations are seldom invoked but can influence outcomes in cases dealing with issues like weaponry trading or cryptocurrency.
Conclusion: Evolving Landscape and Future OpportunitiesAs the episode concludes, it is clear that the arbitration landscape in China is evolving, offering new opportunities for foreign companies to navigate the complexities of cross-border enforcement more efficiently. Yan's expertise provides a guiding light for companies seeking to protect their interests in the rapidly changing legal environment in China.
If you have questions, feel free to reach out to Yanqi Qiyan through her firm's website or LinkedIn. Her wealth of knowledge and experience remains an invaluable resource for anyone involved in cross-border legal matters with China.
Timestamps
00:00 Introduction and Guest Welcome
00:58 Guest Background and Experience
02:04 Understanding Arbitration Awards in China
02:40 New York Convention and Enforcement
05:37 Practical Steps for Enforcing Arbitration Awards
07:04 Challenges and Grounds for Refusal
12:20 Recent Developments in Arbitration
14:54 Injunctions and Enforcement
17:41 Choosing Between Arbitration and Court
19:24 Enforcing Foreign Arbitration Awards in China
21:06 Preparing for Recognition of Foreign Awards
23:01 Public Policy Considerations in China
24:26 Examples of Denied Awards
25:49 Impact of International Relations on Enforcement
27:33 Chinese Court's Approach to Enforcement
30:11 Remedies for Denied Recognition
31:46 Choosing Arbitration Location
35:31 Conclusion and Contact Information
ProducerJacob Thomas
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Connect with Yin Ge
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Examining Financial Services Liberalization in China: Insights from Yin Ge of Han Kun Law FirmWelcome to another vibrant episode of the China Business Law Podcast! In this episode, host Art Dicker sits down with Yin Ge, a partner at the renowned Han Kun law firm, to discuss the ongoing liberalization of the financial services and asset management industry in China. Yin Ge, with her extensive experience and accolades in the field, shares her expert insights on the evolving regulatory landscape and what it means for both foreign and domestic players.
Introduction to Yin GeYin Ge is a distinguished partner at Han Kun, one of China's leading law firms. With a rich background that includes stints at Clifford Chance and Allen & Overy, and an impressive academic resume featuring Huazhong University of Science and Technology, Wuhan University, and an LL.M. from Cornell, Yin is a powerhouse in the realm of financial law. She has advised various international asset managers, trading houses, financial institutions, and sovereign wealth funds on cross-border investments and regulatory issues in China.
Key Areas of FocusYin begins by examining the particular types of clients she works with, delving into asset management and financial services sectors. Her clients range from large asset managers and sovereign wealth funds to hedge fund managers and trading firms. What stands out in her practice is the diverse nature of asset management in China, which spans secondary and primary markets, and covers distinctive fiduciary duties.
Asset Management ClientsYin explains that her asset management clientele includes major players like BlackRock and sovereign wealth funds, as well as hedge fund managers like Bridgewater and trading firms such as Citadel. These firms operate on both secondary and primary markets, managing investments entrusted by clients in a manner that aligns with both local and international regulations.
Financial Services LandscapeIn the financial services sector, Yin highlights her focus on innovative financial services rather than traditional banking transactions like loans. Her clients include global financial institutions, custodian banks, prime brokers, and financial infrastructure operators. Notably, she advises exchanges, both local and foreign, enhancing their operational frameworks to ensure compliance with local regulations.
Realities of Financial Sector LiberalizationOne of the focal points of the discussion is China's genuine effort to open up its financial sector. Over the past few years, the Chinese government has introduced numerous policies allowing greater foreign participation. For instance, several wholly foreign-owned mutual fund management companies and securities firms have been established, reflecting this liberalization. Yin confirms that this trend is very much real, with the government not only making promises but also delivering on them through the issuance of approvals and licenses.
Navigating the JV vs. WFOE DilemmaYin elaborates on the strategic decisions facing foreign firms—whether to establish wholly foreign-owned enterprises (WFOEs) or joint ventures (JVs). While there is a historical preference for WFOEs to ensure maximum control, she points out that JVs can offer significant advantages, particularly by leveraging local partners' distribution channels and market knowledge. The shift in regulations now allows foreign firms to hold controlling stakes in JVs, which makes this option more attractive than in the past.
Why China is Evolving Its Regulatory EnvironmentArt raises an insightful question about why the Chinese government has opted to liberalize the financial services sector. Yin explains that this shift aligns with China’s goal of becoming a 'nation with a strong financial sector.' The government is keen on attracting foreign capital and expertise, which can elevate domestic standards and integrate China more deeply into the global financial ecosystem.
Importance of Compliance and TalentYin emphasizes that the future of China's financial sector lies in higher quality, transparency, and robust compliance. She predicts that financial regulation will only strengthen, and foreign firms must be prepared to navigate this complex landscape by adhering to stringent compliance measures.
Projections for Future LiberalizationLooking ahead, Yin foresees continued liberalization, albeit within a framework of more rigorous regulation. The emphasis will be on incremental reforms that build on existing structures, ensuring stability while fostering growth and innovation.
ConclusionThis illuminating conversation with Yin Ge sheds light on the transformative changes underway in China's financial services sector. For entities eyeing opportunities in this dynamic market, understanding the evolving regulatory landscape and strategic options is crucial. Yin’s expert insights provide a roadmap for navigating this complex yet rewarding terrain.
Timestamps
00:00 Introduction and Guest Welcome
00:21 Yin Ge's Background and Expertise
01:43 Client Types and Common Issues in Asset Management
03:52 Financial Services and Innovative Programs
05:54 Liberalization of China's Financial Sector
11:58 Joint Ventures vs. Wholly Foreign-Owned Enterprises
16:00 Regulatory Environment and Future Trends
24:26 ESG Standards and Challenges
27:52 FinTech and Blockchain in China
30:07 Future of Financial Services in China
33:30 Conclusion and Farewell
ProducerJacob Thomas
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Navigating China's Foreign Investment in Telecom Services with Tracey TangIn the latest episode of the China Business Law Podcast, host Art Dicker sits down with Tracey Tang, a partner at AnJie Broad, to discuss the potential relaxation of value-added telecom services regulations in China and its implications for foreign internet companies. This conversation is especially timely, given the evolving regulatory landscape and the increasing interest of foreign businesses in the Chinese market.
Introduction to Tracey TangTracey Tang, a well-known partner at AnJie Broad, has extensive experience navigating the complex regulatory environment in China. Her insights into the recent reforms of the value-added telecom services regulations are crucial for understanding what changes may lie ahead.
Overview: The Big Change for Foreign ParticipationArt kicks off by introducing the topic: the latest developments in the reform of telecom service regulations that may allow for more foreign participation. This is a significant change for foreign internet companies interested in investing in China.
Historical Context and Current ChallengesTracey provides an overview of how e-commerce and other value-added telecom services, like internet data centers, content distribution networks, and commercially-oriented websites, have historically fallen under various regulatory categories. She emphasizes the hurdles foreign companies face in obtaining the necessary licenses.
New Guidelines and Potential ImplicationsArt and Tracey discuss the new guidelines anticipated from local governments and how these will impact foreign investment. "Whenever a specific license has been granted, that's the timing we should celebrate,” says Tracey, highlighting that while there is a clear trend toward openness, each license is typically granted on a case-by-case basis.
The Reality on the GroundAs Art notes, China aims to project an image of welcoming foreign investment, but the reality is nuanced. The podcast dives deep into the implications of the potential regulatory changes, particularly concerning the value-added telecom services that have been tightly controlled over the past 20 years.
The Complex Web of LicensesThe duo explore the intricate web of licenses required for internet businesses to operate in China. This includes the distinctions between ICP (Internet Content Provider) licenses and other essential regulatory clearances, and the historical limitations that prevented wholly foreign-owned enterprises from obtaining these licenses.
Practical Advice for Foreign CompaniesArt and Tracey agree on the challenging nature of navigating China’s regulatory environment but offer practical advice for foreign companies. Tracey suggests a "wait and see" approach while remaining proactive by consulting local authorities and being prepared to adapt as new guidelines and pilot programs are rolled out.
Real-World Examples and Case StudiesThe podcast also highlights specific examples, such as the liberalization of app store licenses in pilot areas like the Shanghai Free Trade Zone. Despite the opportunities, there remains caution, as only a few licenses have been granted to foreign companies.
The Dual Structure StrategyTracey introduces the concept of a dual structure where companies maintain their existing structures while also applying for new licenses. This strategy helps mitigate risk and enhances operational flexibility.
Conclusion: Navigating Uncertainty with Expert GuidanceArt wraps up the discussion by emphasizing the importance of understanding both the written regulations and the unwritten rules that influence regulatory decisions in China. He thanks Tracey for her detailed and candid insights, acknowledging the importance of expert guidance for companies looking to enter the Chinese market.
Connect with Tracey TangFor more in-depth consultation, Tracey Tang can be reached through LinkedIn, despite its restriction in mainland China. She actively publishes articles and stays connected with industry professionals and clients.
Timestamps
00:00 Sponsorship Acknowledgements
00:59 Introduction to Telecom Services Reform
01:15 Implications for Foreign Internet Companies
01:24 E-commerce and Licensing Challenges
01:47 Potential Changes and Government Trends
03:07 Regulatory Landscape and Licensing
06:18 Navigating the Complex Regulatory Environment
08:38 Case-by-Case Approach and Pilot Zones
16:13 Foreign Companies and VIE Structures
19:34 Conclusion and Contact Information
ProducerJacob Thomas
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Tracey Tang
https://www.linkedin.com/in/tracey-tang-9b294920/
Art Dicker
https://www.linkedin.com/in/art-dicker/
Navigating China's New App Filing Requirements: Key Insights from Tracey TangWelcome to another insightful episode of the China Business Law Podcast! In this episode, host Art Dicker is joined by Tracey Tang to discuss the recent changes to app filing requirements in China and their implications for foreign companies. Tracey, an expert in TMT (Technology, Media, and Telecom) law, offers a thorough overview of the new regulations, the compliance challenges, and practical advice for navigating this complex landscape.
Introduction to Tracey TangTracey Tang is a seasoned attorney specializing in content licensing and digital entertainment industries. With over 20 years of experience, particularly in China, she provides a wealth of knowledge on the evolving regulatory environment for foreign companies operating in the digital space.
Understanding the New App Filing RequirementsWhat’s New?
As of April 1st, new rules mandate that apps in China must undergo a filing process. An app without a filing number could face significant difficulties on both Apple's App Store and various Chinese Android app stores.
The Implications for Developers
Developers must have a company registration in China, host their app on a China-based server, and ensure the app uses a domain name registered in China to complete this filing. This regulatory move aims to bring more stringent control over app distribution and ensure compliance with local laws.
Key Challenges for Foreign DevelopersAndroid vs. Apple App Stores
While the Android app stores have already started enforcing these rules strictly, Apple's enforcement has been more gradual. This leniency from Apple is not expected to last long, and developers should prepare for stricter compliance checks soon.
Impact on Foreign Developers
For many foreign developers, the new requirements present a significant hurdle, as they often lack the infrastructure and partnerships in China to meet these new demands. Tracey explains that foreign developers will either need to set up a local entity, which can be time-consuming and costly, or partner with a Chinese company that already meets the regulatory requirements.
Compliance Strategies: Navigating the Red TapeWork with Chinese Partners
One practical approach is to collaborate with a Chinese partner who can navigate the regulatory landscape and manage compliance issues. This partnership can also help expand the app's user base in China.
Set Up Local Entities
For companies keen on maintaining direct control, setting up a wholly foreign-owned enterprise (WFOE) in China is another route. While this provides more control, it comes with higher costs and regulatory scrutiny. Tracey advises that setting up a company is relatively straightforward; the challenges arise in obtaining the necessary licenses and permissions specific to the type of business.
Specific Challenges in the Gaming IndustryHeavily Regulated Sector
The gaming sector faces even stricter regulations. To publish a game in China, companies need an ISBN approval—a process that can only be carried out by a Chinese publisher with an Internet Content Provider (ICP) license. Foreign companies can’t publish games directly and must work with local entities.
Extended Compliance
Tracey highlights that even non-gaming apps can fall into heavily regulated categories, making it crucial to understand the specific requirements for different types of apps.
Preparing for the FutureAnticipating Enforcements
Despite the staggered enforcement, Tracey suggests not to delay compliance efforts. Apple is likely to ramp up enforcement in the near future, and developers should use this time to ensure they are fully compliant.
Long-Term Solutions
Looking ahead, Tracey advises companies to evaluate their long-term strategy in the Chinese market. For some, partnering with a local entity is the best route; for others, especially those with significant operations in China, setting up a local entity might be more beneficial despite the initial hurdles.
ConclusionThe tightening of app filing requirements in China is a significant development for foreign app developers. Tracey Tang provides invaluable insights into navigating these new regulations. Whether through local partnerships or establishing a local presence, compliance is key to sustaining operations in this vital market.
Stay tuned for part two of this episode, where Tracey Tang and Art Dicker delve into the liberalization of the value-added telecom services (VATS) sector in China and explore the various structures available for foreign investors.
Timestamps
00:00 Introduction and Guest Welcome
02:15 Overview of App Filing Requirements
07:13 Challenges for Foreign Developers
07:54 Setting Up a Company in China
11:30 Navigating Regulatory Compliance
13:20 Options for Foreign App Companies
18:14 Current Industry Reactions
25:00 Conclusion and Teaser for Part Two
ProducerJacob Thomas
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Ying Song
https://www.linkedin.com/in/ying-song-66742526/
Iris Yuan
https://www.linkedin.com/in/irisjlyuan/
Art Dicker
https://www.linkedin.com/in/art-dicker/
Welcome to another enlightening episode of the China Business Law Podcast! In this episode, co-hosts Art Dicker and Iris Yuan sit down with a special guest, Song Ying, to delve into the intricate world of Anti-Monopoly Law (AML) enforcement in China. As an absolute expert in this field, Ying offers a comprehensive overview of current trends, key cases, and practical advice for companies navigating the complexities of AML.
Introduction to Song YingYing is a leading authority on anti-monopoly law, currently an executive partner at AnJie, Ying brings a wealth of knowledge and experience to the podcast.
AML Enforcement in China: A Comparative OverviewYing kicks off the discussion by outlining the three main types of behaviors regulated under China's AML:
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Monopoly Agreements: Horizontal and vertical agreements that restrict competition, such as price-fixing, market partitioning, and output restriction.
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Abuse of Dominance: Actions by dominant companies that exploit their market position, including excessive pricing, exclusionary practices, and refusal to deal.
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Merger Control: Pre-transaction filings required for large deals to prevent anti-competitive consolidations.
Ying emphasizes the differences between China's approach and that of the EU and the US, noting China's post-regulation stance for monopoly agreements and abuse of dominance, versus its pre-regulation approach for mergers.
Key Cases and Their ImpactThe Alibaba and Meituan CasesThese landmark cases highlight the hefty penalties imposed on tech giants for anti-competitive behaviors:
- Alibaba: Fined approximately $2 billion for exclusive dealing practices.
- Meituan: Similarly penalized for restrictive dealings.
Pharmaceutical Industry FocusYing notes a recent shift in enforcement priorities to the pharmaceutical sector, where excessive pricing and anti-competitive practices have drawn significant attention.
Hitachi Metals Case: A Landmark DecisionThe Hitachi Metals case serves as a crucial example of private enforcement actions. Chinese firms accused Hitachi of refusing to license essential patents, sparking a decade-long legal battle. The case underscored the delicate balance between IP rights and anti-monopoly regulations.
Gun-Jumping ConcernsCompanies must be cautious about pre-transaction behaviors that might violate AML provisions. Ying discusses recent stricter enforcement against gun-jumping and advises businesses to thoroughly assess their compliance strategies.
Practical Advice for CompaniesRisk ManagementTo mitigate AML risks, Ying advises companies to:
- Collect evidence demonstrating market competition.
- Document price trends and market entries/exits.
- Prepare for potential third-party complaints and investigations.
Global TransactionsYing underscores the importance of considering China's merger control regime for global deals. Foreign-to-foreign transactions are not exempt, and timely filings are crucial to avoid delays and hefty penalties.# Insights from the China Business Law Podcast: Unpacking Anti-Monopoly Law Enforcement in China
Welcome to another enlightening episode of the China Business Law Podcast! In this episode, co-hosts Art Dicker and Iris Yuan sit down with a special guest, Song Ying, to delve into the intricate world of Anti-Monopoly Law (AML) enforcement in China. As an absolute expert in this field, Ying offers a comprehensive overview of current trends, key cases, and practical advice for companies navigating the complexities of AML.
Timestamps
00:00 Introduction and Guest Welcome
00:29 Ying's Background and Expertise
03:19 Overview of China's Anti-Monopoly Law
03:52 Types of Regulated Behaviors
07:15 High-Profile Cases and Penalties
14:58 Pharmaceutical Sector Focus
30:54 Private Enforcement and Notable Cases
34:46 Conditional Approvals and Gun Jumping
我们与全球领先的法律猎头公司Hughes Castell 的大中华区资深法律猎头Vicky 刘彦访谈关于2022年中国大陆整体法律市场状况。Vicky 谈论了律所在疫情影响下法律业务与招聘业务的整体情况和中资所、外资所的发展趋势；以及in house的市场情况和比较受欢迎的候选人的背景能力。
Co-hosts Art Dicker and Boon Kim Fam are joined by Henry Van Dyck and George Martin, partners and co-chairs of the FCPA practice at Faegre Drinker. Henry was most recently a federal prosecutor at the U.S. Department of Justice working on FCPA and other global government investigations, while George has been a partner at Faegre and co-chair of the China practice covering FCPA and other matters there.Together we cover some of the most important and relevant topics, including how to continue conducting effective cross border investigations in view of ever evolving data privacy laws in China, and understanding to what extent the DOJ may or may not be amenable to potential limitations in terms of discovery. We also discussed what the latest Monaco memo means for executives and whether a "carrot" approach might be the way forward in assessing the effectiveness of a corporate compliance program. You won't want to miss this episode!
Kim Yapchai is an award winning, experienced, global, C-suite leader with a substantial track record of dealing successfully with complex issues in multi-national, public companies, including Ford, Whirlpool, Masco Corporation, and Tenneco. Hear her give the "secret sauce" to an effective speak up program.
From a "surgeon saving lives" (external counsel) to a "family doctor who knows everything there needs to know about each member of the family" (in-house lawyer), Di Yao, Head of Legal for Google Shanghai speaks to the China Business Law Podcast about his journey from an external counsel to an in-house lawyer.
In this episode, Di talks about what prompted him to move from a law firm to an in-house role, how he adds value to a technology company and also what technology companies should be thinking about in terms of their strategy taking into account the evolving regulatory requirements.
Many would say when one transitions from a law firm to an in-house role, it might be for work-life balance reasons. Not Di though - he made the switch because he wanted to change the world. And he did, by joining Google in China and becoming a gatekeeper with a difference, providing pragmatic advice and risk assessment in a fast paced technology industry. Di implored audiences to think about what makes a business successful in China and weave this into the strategy, whether or not this relates to intellectual property, data security as well as privacy. He also advocates taking a step back and truly understand the intention of legislature in developing a robust business strategy. In relation to intellectual property, Di also explained that it is no longer enough to think that a product offering delivered a couple of years ago will continue to be relevant, as continuous innovation and creativity are key drivers driving the domestic market and we all have to catch up. China also recognizes the importance of intellectual property protection, so proactive protection, instead of a defensive IP litigation strategy would be a more sustainable approach. “
Happy International Women’s Day! The theme for this year’s International Women’s Day is #Break The Bias. In this episode, guest host Kim speaks to Orianne Dutka, a former attorney who worked in private practice (FCPA investigations), government (education) and not for profit specializing in disability rights before finding her calling in creative writing, and is currently working on a novel as well as a screenplay!
An accomplished violinist as well as an ultra-marathon runner, Orianne shared with CBLP her life changing experience in Beijing that enabled her to finally pursue what makes her heart sing. Orianne’s entire career path has been nothing short of extraordinary and she has been breaking biases along her journey. In addition, she also shared her personal story on how a supportive community in Huang Shan, Yellow Mountain in China broke the bias by supporting wheelchair users to climb the mountain; also how by constantly self-reflecting and not putting ourselves down we can stop perpetuating some of the biases that exist.
We hope you enjoy this episode!
Doreen Jaeger-Soong, Managing Director at Hughes-Castell, one of Asia’s leading executive search firms, discusses the paths for lawyers and the choices they must make as they progress through their career in China. We cover both in-house and law firms, international firms and PRC firms, and the pros and cons of switching between the two.
Doreen has been an authority on the legal market in China for over 30 years, and she shares those decades of wisdom using real life hypotheticals on what she would recommend for different lawyers at different stages in their careers. You won’t want to miss this episode.
We are thrilled to have Craig Katerberg, GC and Head of Corporate Affairs for Budweiser APAC, to discuss (1) how he manages a team of over 120+ people including keeping top talent happy and motivated (2) how his team works across functional units of the company (3) how lawyers can effectively communicate within a company (4) how understanding the company's strategy can make lawyers more effective
Craig is a self-described "introvert", hard to believe at first - but after you listen to him speak, you can see it yourself in the thoughtful observations he makes throughout this episode. Enjoy.
In this two part interview, Boon Kim Fam talks with Kent Kedl and Tung Jung (TJ) Tan, Partners at Control Risks on have to identify and handle conflicts of interests among employees, vendors, and other business partners. Be prepared to listen to some fantastic stories on fraud and how its uncovered, especially using modern forensic accounting tools combined with years of experience of knowing where to look for problems. And on how services like this in the M&A context don’t usually kill deals but instead add value by creating better deals.
In this two part interview, Boon Kim Fam talks with Kent Kedl and Tung Jung (TJ) Tan, Partners at Control Risks on have to identify and handle conflicts of interests among employees, vendors, and other business partners. Be prepared to listen to some fantastic stories on fraud and how its uncovered, especially using modern forensic accounting tools combined with years of experience of knowing where to look for problems. And on how services like this in the M&A context don’t usually kill deals but instead add value by creating better deals.
In this two part interview, Art Dicker and guest host Iris Yuan talk with Mavis Tan and Jessica Pyman, Partners at Control Risks based in Hong Kong. On how to prepare for litigation including fit-to-sue analysis, securing evidence, use of experts, and finding pressure points that help lead to a favorable settlement. Mavis and Jessica explain how lawyers can work side-by-side with someone like Control Risks for a more comprehensive and often practical approach to building and implementing an effective litigation strategy.
In this two part interview, Art Dicker and guest host Iris Yuan talk with Mavis Tan and Jessica Pyman, Partners at Control Risks based in Hong Kong. On how to prepare for litigation including fit-to-sue analysis, securing evidence, use of experts, and finding pressure points that help lead to a favorable settlement. Mavis and Jessica explain how lawyers can work side-by-side with someone like Control Risks for a more comprehensive and often practical approach to building and implementing an effective litigation strategy.
Boon Kim Fam talks with Shirley Zhang, Global Compliance Director at Dover Fueling Solutions. On running a global compliance program out of Shanghai for a multinational company. On the challenges of “work-life integration” and time management during COVID-19. And how Shirley and her team manage to stay on top of an ever increasing number of data privacy and other compliance regulations around the world.
No matter your position on Chinese companies being put on a blacklist by the US government, you have to admire the due process these companies still get in court when a rule is challenged.
Enter Xiaomi, which recently won a federal lawsuit to get off the black list banning US investors to buy and sell its stock.
We talk with Tim O'Toole, Partner at Miller & Chevalier Chartered, who himself has appeared numerous times before the judge in this Xiaomi case. On whether this ruling opens up the floodgates for other Chinese companies to follow suit and challenge their bans.
A joint episode with our sister show "Ganbei" with guest with Xiaohu Ma, Partner at Hui Zhong Law Firm and former partner at Morrison & Foerster.
The Variable Interest Entity. Sounds like a boring term an accountant or lawyer might use. Well it is an accounting term, but it’s anything but boring when you know how its used in the real world. It’s the key to how all Chinese internet companies have been structured to go IPO outside of China for the last 20 years. Let’s just say it’s a bit of a clunky workaround to deal with restrictions on foreign investment in the internet space in China, and despite its clunkiness, it’s still going strong today.
We’ll get into the notorious Alipay – Softbank – Yahoo story and others where the VIE was center stage in that drama. Check it out with our guest Ma Xiaohu, one of the leading early technology lawyers in China who along with a few others had to come up with all these wonderful structures 20 years ago to enable that first batch of Chinese internet IPOs to happen…
本期我们与复星集团法务部执行总经理Iris 袁佳丽、FMC亚太区知识产权事务负责人Leo 李灵川进行了Lawyers Unscripted. (Unscripted means free flowing conversation, not overly planned out in advanced.)
10' IP律师业务模块介绍 16' in-house工作的沟通方式 对比与在律所工作的思考方式 30' 时代背景下对职业转变赋予的自由空间 以及新兴行业的发展对于跨领域/跨界人才的需求 41' 客户对外部律师的真实需求 47' MBA对软实力的培养 51' 如何建立对客户的吸引力与信任感 59' 如何看待行业选择
We interview Amiad Kushner, chair of the litigation practice at Seiden Law Group, a boutique law firm based in New York that specializes in complex commercial litigation, often on behalf of clients based in Europe and Asia. Amiad has a special focus on representing Chinese clients in these matters.
Foreign companies sue Chinese companies and often are in disbelief at how little documentation a Chinese company produces during the discovery process. And this may simply be because Chinese companies even on major strategic matters do not have a habit of documenting their decision-making processes. And how do Chinese companies choose their external counsel like Amiad for such complex litigation matters?
While one might think Chinese companies make easy targets, we instead have a fascinating in-depth discussion on the technical and cultural challenges of foreign companies bringing suit against Chinese companies around the world.
Tim Klatte - https://www.linkedin.com/in/dr-tim-klatte-2358964/
Qiao Peng - https://www.linkedin.com/in/qiao-alice-peng-9110221b2/
4:12: 标准必要专利和公平合理和无歧视原则（FRAND）
19:30: 标准必要专利全球许可费率的重要性
19:50: 美国：TCL诉爱立信
27:50: 英国：康文森无线许可诉华为和中兴
36:36: 中国：中兴诉康文森无线许可（最高人民法院）
43:00: 战狼精神
47:00: 国际化公司的全球化应对策略。
51:44: 中国：小米诉交互数字公司（武汉中级人民法院）
-Drafting precise language on product deliverables and specifications
-Including dispute resolution language in the contract
-Challenges of enforcing a US legal judgement in China
-Challenges of collecting evidence and bringing a case directly in China
-Alternative means to enforce a judgment
-Benefits of arbitration instead of litigation
-Specifying damages on breach, e.g. liquidated damages
Why do prices fluctuate so much and how much time do customers typically have to decide on a deal?
How can a buyer find other ways to reduce total order costs (e.g. shipping and logistics) beyond price?
How does payment work and how much must be paid upfront on orders?
How to educate buyers who are inexperienced in buying PPE or buying anything from China?
What kind of vetting and other due diligence can be done on manufacturers and trading companies that sell PPE?
Cameron Johnson - https://www.linkedin.com/in/cameronjohnsonshanghai/
Joel Gallo - https://www.linkedin.com/in/joel-a-gallo-167a6b17/
3:10 介绍怎么选择了IPO业务领域
5:30 IPO业务领域的发展趋势
9:30 在美国、香港、大陆上市的区别，以及律师的业务重心
26:16 科创板IPO的特殊性，以及律师的业务重心
36:50 中概股二次上市
42:00 财务问题对企业的影响
46:40 IPO业务的律师流程，以及法律层面重要的问题
56:50 体育行业经验分享
We are joined on our sister show Ganbei by Brian Fleming, Member at leading Washington DC law firm, Miller & Chevalier. Before joining the firm, Brian spent several years at the US Department of Justice working on national security issues related to export control, CFIUS investigations, and other compliance and enforcement efforts on international trade.
Brian and Art discuss the recent Executive Orders restricting the use of WeChat and TikTok and the ongoing discussions about a potential sale of TikTok and the concurrent CFIUS investigation.
-What is the legal basis behind the TikTok and WeChat Executive Orders?
-How will the 45 day time frame and process work for the Commerce Department to identify transactions subject to these orders?
-Are US companies' China subsidiaries covered by the order on WeChat?
-Will US citizens really fall under this rule and be prevented from using WeChat from a practical perspective, even in China? Can they really enforce this rule on a person-by-person basis? Who is really being targeted by this rule?
-Will the app stores like Apple and Google be forced to take down the app?
-Why was the Executive Order for WeChat limited to transactions with WeChat and not transactions with Tencent, whereas the order on TikTok was much broader to include all transactions with Bytedance?
-How hard will big business be lobbying to get this rule narrowly applied?
-Is there a license exemption process for companies to use and what can we learn from the Huawei experience with similar licenses?
-Can Tencent and Bytedance appeal these Executive Orders?
-What is the status of the CFIUS investigation into Bytedance and its 2017 acquisition of Musical.ly and how does that interplay with the discussions now on banning TikTok?
-What is coming next with respect to a potential sale to Microsoft or Twitter?
-How have CFIUS investigations driven other companies to be sold when held by Chinese buyers?
-How is the Administration using the Executive Order and the CFIUS investigation together as a coherent strategy?
-Was it obvious back in 2017 that Bytedance should have made a CFIUS filing for its acquisition of Musical.ly?
-How does the acquisition of a lip-synching app like Musical.ly trigger national security concerns?
-Can any Chinese company that handles a large amount of personal data on US citizens put in place mitigation measures to that will actually satisfy CFIUS in the current political environment?
-Is CFIUS really the right tool to be using to screen foreign companies and especially Chinese companies from doing business with large amounts of data or acquiring sensitive technology in the US?
Joey tells us about his story of moving to the US as a young kid and learning through mentors and internships to find what he loved to do in life. Art Dicker joins the discussion as well, and Joey and Art discuss how people can make wise career decisions and avoid mistakes when deciding to enter professional fields like finance or law.
2:10 How prior government experience helped Kim in her compliance role today.
3:13 What kind of compliance issues are unique to a retail business?
4:26 Is the scope of a typical compliance role becoming broader now to cover things like data privacy?
8:20 How do you get your message across in training the business teams?
12:04 How do you do trainings for 3rd party business partners such as vendors and distributors?
13:18 Any differences between working with the business teams in China and in other parts of Asia Pacific?
16:38 How to get the senior management to help drive and support the compliance program?
21:21 How about empowering middle management who are often the first to encounter problems?
23:40 Making your presence felt in the region when the compliance team sits in the regional headquarters.
26:38 Is face time still important in a compliance program with the prolific use of video conferencing now?
28:20 Business is getting done despite a dramatic reduction in travel and entertainment with clients because of COVID-19. Will this lead to a permanent reduction in compliance risk to the company?
29:05 What do you see as changing trends for compliance in Asia Pacific?
Art Dicker, host of China Business Law Podcast, joined Xnode to give a live webinar about corporate venture capital.
Jeffrey has a decade of experience at JunHe LLP, and specializes in China's employment and sports law. In our first episode co-hosted with the American Chamber of Commerce Shanghai's China Voices podcast, we spoke with Jeffrey about some of the key employment law issues that have arisen for foreigners in China during the COVID-19 pandemic, including if a company can force you to be tested or quarantined and if a company can fire you if you're stuck outside the country.
A startup has numerous "stakeholders" - investors, advisors and mentors, employees, customers, media, and the government. We lay out what makes good stakeholders, how they work together, and how there can be potential for conflict.
Our panel discussion includes:
-Barbara Ex is the founder of Whitespace
-Julian Mintzis is a startup investor and CEO of Panda Eagle Group
-Helen Han is a startup investor and mentor at Chinaccelerator
-Art Dicker is a lawyer and founder of the China Business Law Podcast.
This week our show is hosted by Agnes Wang, a lawyer in China and co-creator at the show.
1:58 – How has the legal industry changed in the last few years?
8:38 – How “biglaw” came about and how it is hit now in a recession.
11:30 – Clients questioning what they’re paying for from firms and how firms will adapt?
15:56 – How is this affecting people’s decision to go in-house?
21:00 – Law firms integrating into clients and self-disciplining on fees and work scopes.
24:20 – How are in-house counsel expanding their roles within companies?
32:35 – Are in-house lawyers making themselves obsolete by automating process and increasing efficiencies?
40:50 – How people and cultural skills are more important than ever for lawyers especially in-house.
45:20 – How in-house lawyers can drive the decision-making process in a big company.
51:42 – A call to making change in your legal department and its role in the company.
3:50 – Basic product quality and safety due diligence
9:40 – Engaging third party inspectors in China
11:50 – Engaging third party agents for sourcing product
15:55 – Anti-bribery and fraud prevention
20:06 – Diligence requests to and background research on your counterparties
25:18 – Documenting the terms of the transaction in your contract (and getting a lawyer)
30:31 – Identifying red flags and making the decision to walk away from an offer
33:55 – Reputational background search on other key players in the transaction
1:45 – What kind of funding environment are we in now?
4:08 – Will and how would VC funds try to back out of deals?
7:05 – Why VCs may be reluctant to put in more capital to existing portfolio companies.
12:15 – Alternatives to VC funding
14:48 – Investor veto rights – fundraising, change in business models, redemption threats
22:45 – Legal issues for startups trying to reduce costs
25:50 – Predictions on what will change post-virus
1:35 Introduction to the Cybersecurity Law
5:00 Which regulators are competing for jurisdiction?
7:14 How much adaptions do companies have to make to localize their policies?
9:00 How do smaller companies try to comply in a cost-efficient way?
15:20 Coming up with a policy doesn’t have to be rocket science.
17:20 Where do company policies break down?
22:55 Problems of the “ownership” of data policies within big companies
25:40 Companies changing data compliance from a cost center to a value proposition
28:45 Personal liability on data protection officers and legal representatives within companies
31:18 Will the coronavirus situation impact data collection and data privacy in China?
3:00 - What is force majeure?
5:28 - Are force majeure clauses always in contracts and what’s standard?
8:48 - What if the contract is silent on this issue and how does governing law matter?
11:26 - Force majeure often doesn’t totally excuse the party to perform the contract
14.16 - Chinese trade association issuing force majeure certificates now, what value do these have?
17:50 - How should foreign companies be preparing now for Chinese companies potentially using a force majeure clause in their contracts?
Bonus questions:
23:55 - A lot of parents in China, expats, etc., sending their kids to private schools in China which can’t open. What can they do?
31:18 - What kind of personality do you need to have to handle sticky issues like force majeure cases and compliance issues generally as a lawyer?
1:15 – How today’s situation compares to Kenny’s time as Legal Director at Kodak China during SARS.
4:00 – What other kind of types of crisis can we look to for guidance here?
9:25 - How can companies use a crisis management framework to respond?
15:08 – The specific role of the legal department in responding.
21:58 – Might the Legal Department actually be one of the best equipped BU’s to address long-term issues involved in a crisis like this?
29:15 – How crisis can create an opportunity for the Legal Department to show its value in terms of strategy for the company.
30:55 – How Legal Managers can behave like an owner of the business during times like this.
3:00 - The most common disputes with employees at companies.
4:00 - How Jon handles disagreements with colleagues/internal clients
5:45 - Does a legal training get in the way of good communication?
11:15 - Why you should never surprise someone with your decision
12:10 - Coaching managers to communicate well on terminations
13:45 - How to impart legal concepts using non-legal language
16:00 - Lawyers and non-verbal communication mishaps
19:20 - Avoiding the temptation to want to look smart with clients
21:10 - Talking about the law in terms of fairness not rules
22:30 - How company policies can hinder effective decision making
27:00 - Handling political correctness, bad jokes, etc within companies
1:05 - Typical termination case profiles
1:55 - Dealing with termination cases already in flight
4:02 - Handling situations where no clear legal grounds for termination
5:50 - How badly should a company pay to make employee go away
10:21 - Handling employees who just refuse to go
13:15 - Advance preparation for terminating employee
16:20 - Performance improvement plans
18:10 - Coordinating HQ-local cross-border termination cases
23:07 - How can outside counsel offer practical risk assessments
27:50 - Enjoying the practice of law in China as an expatriate
1:05 - Basic principles of the law
3:40 - Implementing the law on the ground
10:30 - Sectors that could come off the "Negative List" in the future
15:15 - Impact of new corporate governance rules
19:17 - Some JVs being compelled to amend corporate governance
21:30 - Opportunities for VC funds to use more domestic structures
24:45 - The law and the future of VIE structures