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Examining Financial Services Liberalization in China: Insights from Yin Ge of Han Kun Law Firm

Welcome 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 Ge

Yin 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 Focus

Yin 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 Clients

Yin 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 Landscape

In 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 Liberalization

One 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 Dilemma

Yin 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 Environment

Art 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 Talent

Yin 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 Liberalization

Looking 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.

Conclusion

This 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

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Jacob Thomas

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Navigating China's Foreign Investment in Telecom Services with Tracey Tang

In 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 Tang

Tracey 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 Participation

Art 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 Challenges

Tracey 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 Implications

Art 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 Ground

As 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 Licenses

The 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 Companies

Art 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 Studies

The 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 Strategy

Tracey 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 Guidance

Art 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 Tang

For 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

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Jacob Thomas

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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.Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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.Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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.Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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.Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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.Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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.Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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… Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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Jacob Thomas

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Tracey Tang

https://www.linkedin.com/in/tracey-tang-9b294920/

Art Dicker

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 Navigating China's New App Filing Requirements: Key Insights from Tracey Tang

Welcome 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 Tang

Tracey 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 Requirements

What’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 Developers

Android 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 Tape

Work 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 Industry

Heavily 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 Future

Anticipating 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.

Conclusion

The 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

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Jacob Thomas

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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.Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

Tim Klatte - https://www.linkedin.com/in/dr-tim-klatte-2358964/

Qiao Peng - https://www.linkedin.com/in/qiao-alice-peng-9110221b2/

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Jacob Thomas

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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）

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Jacob Thomas

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-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

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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/

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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

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Jacob Thomas

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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? Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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.

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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?

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Art Dicker, host of China Business Law Podcast, joined Xnode to give a live webinar about corporate venture capital.Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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 Ying

Ying 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 Overview

Ying kicks off the discussion by outlining the three main types of behaviors regulated under China's AML:

1. Monopoly Agreements: Horizontal and vertical agreements that restrict competition, such as price-fixing, market partitioning, and output restriction.

2. Abuse of Dominance: Actions by dominant companies that exploit their market position, including excessive pricing, exclusionary practices, and refusal to deal.

3. 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 Cases

These 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 Focus

Ying 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 Decision

The 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 Concerns

Companies 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 Management

To 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 Transactions

Ying 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

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Jacob Thomas

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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. 

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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.

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Jacob Thomas

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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.

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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

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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

 

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Jacob Thomas

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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?

 

Producer

Jacob Thomas

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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?

 

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Jacob Thomas

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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.

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Jacob Thomas

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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

Producer

Jacob Thomas

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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

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Jacob Thomas

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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。Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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

 

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Jacob Thomas

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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! Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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.Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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. “Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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!Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts

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.Producer Jacob Thomas Follow Us LinkedIn Apple Podcasts