Understand Your Rights. Solve Your Legal Problems
Net neutrality is the principle that Internet Service Providers (ISPs) treat all internet data equally and do not discriminate or charge differently depending on the user, content, website, platform, application or method of communication. Below Andrew Jerrard, Solicitor in Commercial Services at Coffin Mew, explains for Lawyer Monthly.
The principle is intended to stop ISPs intentionally blocking, slowing down or charging money for specific online content. Recent examples of ISPs doing so include:
What are the arguments for and against net neutrality?
Supporters argue that keeping the internet an open-playing field is critical for innovation and investment in technologies, as these are dependent on the ease of entry and equality of data management. Stifling new technologies by requiring businesses and users to pay a premium is not democratic or beneficial to society.
Opponents argue that ISPs need to raise money to invest to improve infrastructure. They point to the pressure of increasing data traffic, reducing speeds for users and greater demand caused by:
They claim that ISPs will be able to make a return on their investment more quickly through premium services and are therefore more likely to roll out improved infrastructure to benefit all customers with improved and better service offerings.
What’s been going on in the US?
In the US, net neutrality has long been a hot topic. There is less competition among ISPs than in the EU and more demand on the Federal Communications Commission (FCC) to intervene and enforce net neutrality.
President Obama enacted rules imposing net neutrality in 2015. After a long-fought legal process, the FCC, headed by Ajit Pai (a former Verizon lawyer appointed by President Trump), voted on and repealed the rules in June 2018, despite a U.S. Senate vote to uphold them.
Leading tech companies such as Google, Microsoft and Netflix have publicly weighed in favouring net neutrality, along with some celebrities including two of the Avengers, Mark Ruffalo and Chris Evans. Several states have passed or intend to pass net neutrality laws, although it is widely anticipated that companies opposed to the principle will file lawsuits to declare the laws invalid.
What is the EU position?
The Regulation on Open Internet Access (EU 2015/2120) grants end users’ access to online content and services without discrimination or interference by ISPs based on location, origin or destination of the information, content, application or service (Article 3(1)) and provides that ISPs shall treat all traffic equally (Article 3(3)).
ISPs may however implement traffic management measures that are transparent, non-discriminatory and proportionate as long as they are not:
There are some exceptions allowing an ISP to disapply net neutrality as necessary, and only for as long as necessary, in order to:
What happens if an ISP breaches the Regulation?
Member states are required to set applicable penalties for a breach. National Regulatory Authorities monitor and enforce the rules in the EU. Ofcom is the UK’s authority.
For example, Three was recently investigated and has confirmed it would withdraw restrictions slowing peer-to-peer and virtual private network traffic for customers roaming in the EU and on the use of handset SIMS in dongles and mifis.
Will Brexit change things?
Possibly – depending on what the Government decides post-Brexit. As EU law is being adopted into national legislation, it is likely that net neutrality will be retained.
Your opinion?
Which side a person takes comes down to their political beliefs and whether they think that big telecoms providers will offer better and more flexible packages to businesses and consumers without net neutrality rules. Net neutrality is positive in ensuring equality, but I would like to see narrowly-worded carve-outs giving priority for data traffic benefitting the public and infrastructure, for example emergency services, accident prevention and transport-flow services.
When asked about additional regulation for Google on Aug. 29, President Trump said “we’re just going to see” before adding he wanted to see “fairness” on the platform.
Lawyer Monthly have the privilege to partner up with Jennifer Ison, an ex-lawyer turned fashion entrepreneur, who will for our future editions give lawyers and corporate professionals tips and guides to looking the best for their meetings and all-important clients.
This month, she shares her unique story and some of her staple pieces for petite women.
I was delighted to be asked by the Editor of Lawyer Monthly to write a fashion column for the magazine. I have worked for most of my career as a lawyer so I thought that I would first explain how this came about, as writing on fashion is not in the normal skillset for a lawyer! That is not to say of course, lawyers are uninterested in fashion. Far from it, not least because the way you dress at work is inextricably bound up with both how you come across to colleagues and clients and just as importantly your self image and confidence. For working women (more so I would say than for men), the choice of clothes can at times seem bewildering - an added stress when it is so important to get the right look for your professional environment. For those of us whose shape or height does not fit into the fashion industry standard ‘norms’, the search for your perfect working wardrobe can be even harder.
As a 5’1” lawyer who started out way back in the 80’s working in the City, this extra challenge was one I was all too familiar with. I found it a real struggle to source clothes for work that would fit. It was not just a question of length, the proportions were all wrong. The choice of work clothing available to me over three decades of working as a lawyer did not get any better. I grumbled off and on about it until finally the idea began to form that instead of just complaining, I could do something about it.
Years spent as a corporate lawyer and then later as an employment lawyer had, not unsurprisingly, left me a little short of knowledge on the ins and outs of the fashion industry but it had taught me that research is key. So in the autumn of 2016, I set about finding out what was needed to run a fashion label, enrolled on a short course at the London College of Fashion entitled “How to set up your own fashion label” and then spent months looking at fashion brands and the type of clothes I wanted to offer. I engaged a branding consultant, firmed up on my ideas for the aesthetics of the brand, sourced a fashion designer and appointed a manufacturing studio in London.
Jennifer Anne (www.jennifer-anne.co.uk) my new label exclusively designed for petite women was launched online in Spring 2017 and has achieved a heart-warming welcome from customers and the press. The Internet has given a fantastic platform for niche brands such as Jennifer Anne to find a route to market without the need for bricks and mortar. Consumers are looking for something special which is not available on the High Street, products that are tailored to them and their needs. There is a clear rise in niche brands with an authentic voice and led by passionate founders who really understand and identify with their core customer base – this is the way forward.
Navy Brookner Blazer £240 and the Navy Smith Trousers £140
Our collection is made in London. Each piece is included after detailed consideration and designed from the very beginning for a smaller frame. Fashion Editor Emily Dawes of YOU Magazine, recently labelled us as “The workwear go to”, which was quite a compliment for such a new brand. What caught her eye in particular was our petite Merino Wool suit - Smith Trousers and Brookner Blazer. The luxury fabric (which comes in grey or navy) was woven in Yorkshire by Joseph H Clissold, a firm with a great heritage that has been producing cloth for over 100 years. The horn rim buttons on the blazer complete the professional look. Not only does it look super smart but is also really comfortable, which is so important when you are putting in those long hours at the office. A trouser suit is such a useful staple in a professional’s work wardrobe and it is easy to change the look with silk shirts or smart tops. For more of a smart casual look, I have taken to wearing the navy blazer with Paige jeans at the weekend.
Carter High Neck Top in Ivory £120 
The Carter High Neck Top [see dropbox for image and insert link on picture to https://jennifer-anne.co.uk/collections/tops/products/petite-ivory-carter-high-neck-top] is a wonderfully versatile and elegant top made from a gorgeous smooth fabric. Its long sleeves and high neck make it a perfect choice when you are looking for a really professional image at the office and will bring a touch of sophistication to any outfit (not just our trouser suit!). The top was picked out earlier this year as ‘a winner’ in the Independent and I was really delighted that Jennifer Anne was named as one of the top high-end petite brands in the UK. If you are looking to add a pop of colour, the top also comes in blue and fuschia, as well as ivory.
Anna Shirt Dress £198
A shirt dress is another must for your work wardrobe. Our petite Anna Shirt Dress has lovely details with mother of pearl buttons and V-shaped breast pockets. The ¾ length turned back sleeves are so flattering for the smaller woman. Marie Claire Magazine loved our petite blue shirt dress so much that they featured it twice, first in their round up of the very best summer workwear and then again in their focus on chic office wear. As Marie Claire pointed out, the Anna Shirt Dress is one of those great transitional pieces that can be worn right through to spring. If you want to style this dress in a different way then you can you can always add a woven or leather belt. One of our customers called it her ‘travel anywhere dress’ as it is remarkably crease free. If you are on a work trip it can be folded up really small and still look fabulous when you unpack which makes it so practical.
I am well aware that it is early days for my new petite brand but it certainly has been an exciting beginning. It has been richly rewarding creating something from scratch, to take an idea and turn into a reality. Not least because what drove me to take on this challenge was the goal of providing a solution to women like me who needed and wanted to look smart and professional at work and were finding it so difficult to be able to do that. I was well aware what a wonderful boost to your confidence it is, when you can walk into a meeting smartly turned out and feeling good in and about what you are wearing. I know that Jennifer Anne is providing the answer when I continue to receive repeat orders and read the feedback from happy customers, with comments such as, ‘fabulous clothes’, ‘felt so special’, ‘gap in the market for high quality luxurious petite workwear’, ‘delighted to find petite clothes that actually fit’ and ‘truly changed the landscape for young professional petite ladies’. It seems that niche really is the way forward.
Jennifer Ison is an ex-City lawyer turned fashion entrepreneur. She worked for Norton Rose and Baker & McKenzie as a corporate lawyer before setting up a niche employment law firm in Wimbledon. In 2017 Jennifer founded a new fashion label Jennifer Anne, a premium brand of petite womenswear designed and made in London.
With Lee and Li currently being the largest law firm in Taiwan, Lawyer Monthly speak with the Partner of the firm’s Banking and Capital Department, Grace Wang. With Grace and her team ensuring each of their clients are well looked after, their best efforts often provide the best legal services. She speaks below on the differences between onshore and offshore funds, as well as issues she often overcomes.
What are common issues you deal with in relation to funds, in the investment sector? How does your firm overcome this?
Sometimes the clients are not sure whether the regulator would challenge the investment scope or the investment objective and policy of the new fund, when they are applying for the regulator’s approval of such new fund. We assist clients by discussing with the regulator and understanding the regulator’s opinion, so that when the applications are submitted to and reviewed by the regulator, it would be accepted.
You assist onshore and offshore mutual funds: is there any legal difference between the two?
Under Taiwan laws, there is legal difference in several aspects between onshore funds and offshore funds.
Firstly, from the aspect of the establishment process and fund structure, onshore funds are organised and established by a securities investment trust enterprise (SITE) incorporated in Taiwan, under a trust agreement executed between a SITE and the custodian bank. Onshore funds in Taiwan are not structured as a corporate entity and they are not legal persons, whereas we understand many offshore funds are structured as a company (such as UCITS). Secondly, the conditions for an onshore fund to be eligible for registration with a Taiwan regulator are different from the offshore funds’ registration. Thirdly, Taiwanese laws and regulations categorise the onshore funds into several types and prescribe different requirements for each type of fund; while the laws and regulations impose requirements that are generally applicable to all offshore funds.
What are three things clients should know when dealing with the applications of onshore and offshore funds in Taiwan?
Clients should be aware about:
Grace Wang
Partner
Lee and Li
www.leeandli.com
"I am the main partner in the asset management practicing area. Most of my practice focuses on asset management related legal matters (including onshore funds and offshore funds registration and discretionary investment business, applications for asset management licenses, securities investment trust license, securities investment consulting license, discretionary investment approval, regulatory compliance matters for asset management companies and applications for new businesses or products for asset management company.) I also provide advice on issues in relation to asset management business and assist in making regulatory filings and relevant applications. I assist asset management clients during M&A projects, and construct research reports and template contracts in relation to trust and asset management business retained by the self-regulatory association of the asset management business, the trust association, the stock exchange and the securities regulator. I have also handled some derivative legal matters (including structured products and other derivatives) and other banking and securities matters."
Being a full-service law firm, Lee and Li has retained a reputation as being leaders in each of its 28 practice areas performed by experts in each area in its five business departments: the corporate and investment, banking and capital market, litigation and alternative dispute resolution, patent department and trademark department. Asset management related legal practice is part of the capital market practicing areas, where Lee and Li has extensive experience, which covers mainly onshore and offshore mutual funds, securities investment trust business, securities investment consulting business, discretionary asset management business and trust business.
The legal profession is often tagged along with stress, late nights and worrying, which easily impacts your performance at work. How can our lawyers take better care of themselves?
Without a doubt exercise is the often the first go-to cure. There are reaps of benefits which extend further out from being more fit and healthy; a short run or a quick swim can do wonders for your mindset, instantly getting you ready for your long day at work.
But don’t take my word for it. We speak with Patrick Sarch, Partner at one of the top international law firms: White & Case. White & Case have dedicated a proportion of their budgets to wellbeing, where they block book places at Psycle during lunch for their legal team to go and make use of their facilities.
Psycle offers high intensity, low impact, head to toe workouts and fitness classes; with 52 sessions a week across their Ride, Barre, Strength and Yoga concepts, Psycle has become a popular option for busy workers who need a quick intense workout to clear their mind.
White & Case wanted to sign up to try and see an improvement in wellbeing and productiveness of staff in the workplace, which they have seen; therefore, we ponder on the idea to whether law firms should be more proactive in looking after their hard-working lawyers.
We speak with Patrick on how dedicating time to improving health and wellbeing has impacted lawyers at their firm, and with Psycle’s CEO Rhian Stephenson on how you can work towards being a better version of you.
Speaking with Patrick Sarch, Partner at White & Case:
The legal profession has very high instances of people struggling with stress, fatigue and depression. Exercise is one of the very best means of tackling these issues and providing balance to lawyers’ working lives.
Why is tackling wellbeing important to White & Case?
We work in a high octane 24/7 environment where our clients expect immediate, top quality advice. To deliver that in the context of the most challenging circumstances, our lawyers need to be mentally and physically refreshed and resilient. It is also the right thing for an employer, which expects a great deal of its people, to do in order to provide a positive and healthy working environment
How has addressing wellbeing in lawyers affected their work and productiveness?
The legal profession has very high instances of people struggling with stress, fatigue and depression. Exercise is one of the very best means of tackling these issues and providing balance to lawyers’ working lives. It is hard to measure direct productivity gains resulting from wellbeing; wellbeing is increasingly recognised as an important tool in attracting and retaining talent, and in proactively managing issues rather than reacting when problems become apparent. “Attrition” statistics (i.e. lawyers leaving firms, and often the profession) have improved as law firms train their new graduate recruits in resilience. I think the gains that will come as a result of healthier and more engaged lawyers will be even greater, and everyone in the future will wonder why they didn’t do more on this beforehand.
One cannot perform at the top of one’s game for years at a time without being fit, well and happy.
Are there any other positive outcomes from signing up to Psycle that you have noticed?
There was a better team vibe for those who went to Ride or Barre together. The six-week challenge was a great means of binding people of all levels in a collective endeavour. Colleagues have certainly seen me in a different light once they know that I have spent many hours enduring the “barre burn” at the Shoreditch studio!
What are common reasons behind lawyers from avoiding addressing their fitness and lifestyle? Why would you advise them to not ignore their own wellbeing?
One of the key issues for lawyers is our focus on chargeable hours and timesheets, as well as a sedentary working environment and periods of extreme pressure. To get ahead often means being constantly available and putting in extra hours, including at weekends, and one of the first “optional” things to go is time spent exercising and on wellness – which is of course the last thing hard working, office-bound professionals should do. One cannot perform at the top of one’s game for years at a time without being fit, well and happy. That means exercising, having goals and focus on challenges beyond the next conference call or negotiating meetings, which Psycle has really helped us to achieve. Unless you keep these aspects as a part of daily life, you will likely only notice a problem when it is harder to fix it.
What would be your first piece of advice for lawyers looking to make a difference in their lifestyle for the betterment of their wellbeing and work?
I used to work for a partner who told me you have to “make time” to exercise. As a busy associate, I thought “it’s alright for you, you can leave me here doing the work while you swan off to the gym”. Now I am a partner, I have a bit more control (but not much!) over what I am doing hour by hour – but people at all levels should schedule time to exercise and treat it as an important engagement. I found personal training and classes help this, as there is a specific time slot at Psycle, for example, that one is committed to. Planning to find an hour to go to the gym is all too easy to drop when priorities stack up. Of course, you still have to cancel or miss a number of slots, but if you don’t have a plan you have no chance of achieving it.
Speaking with Rhian Stephenson, CEO at Psycle London:
Wellbeing encompasses everything regarding your physical and emotional health. When looking at health it's important to consider a well-rounded picture and ask: what are your valued areas in life and how are you progressing towards this? Are you in balance?
How Can You Achieve Better Wellbeing?
People are often intimidated or scared of approaching exercise as a path to better wellbeing; what ways can they ease their way into it?
The most important thing to do is just start. It's helpful to figure out what your perceived barriers are - often these just arise from irrational fear. So many people think you need to take an all or nothing approach to fitness; the perception is that the only way to be fit is by exercising obsessively and following a diet of deprivation. This often prevents people from starting as it often acts as an easy excuse, but it's just not true. If it's confidence that's holding you back, it's important to remember that the majority of people will be feeling the same way as you. Give yourself a month or so of testing the waters - try different classes, figure out what your goals are and then make a plan to get there. Some people who train with us jump straight into a 6-week transformation programme and some people start by coming once a week - it's important to decide what you think you'll respond best to and then just go for it.
How does wellbeing stretch further than fitness?
Wellbeing encompasses everything regarding your physical and emotional health. When looking at health it's important to consider a well-rounded picture and ask: what are your valued areas in life and how are you progressing towards this? Are you in balance? How does your health and wellbeing contribute to this? Once you can hone in on all of the positive motivators you'll find sticking to a plan - whether it be nutrition, exercise, mindfulness - far easier than if you're doing it solely to lose weight. If you start exercising as a means of stress release, you'll be far more likely to stick to that, than if you're telling yourself you need to lose six pounds.
Sometimes making the smallest changes can have a profound effect on your emotional wellbeing, which in turn will benefit your physical self. For example, after a year of being CEO I was so physically and emotionally exhausted that I couldn't even think straight - I honestly felt like I was going mad! I desperately wanted to train but I couldn't find the energy, so I committed to doing 10 minutes of yoga every morning for one month to see how I felt. By the end of week two I was shocked at how much better I felt - from just 10 minutes. By week three I was sleeping well for the first time in over a year and by week four, I had found the energy to get back into the gym. Stress, pressure, lack of sleep - these things are all so exhausting and have a profound impact on your physical health. Likewise, poor physical health has a negative biochemical effect on your emotional health - so it's essential to see them as two parts of a whole rather than keeping them separated.
Being fit and satisfied with your wellbeing will improve your mood and overall perceived happiness and satisfaction with life. In the workplace this translates to being more motivated and productive.
Moreover, how does this have a positive impact on corporate professionals?
The benefits of wellbeing in the workplace are well studied and hard to ignore. Healthier people make better choices, form better relationships and are less stressed. When you're stressed you make decisions from a fight or flight response, which decreases the ability to use the rational problem-solving part of the brain, so it can actually become a significant performance risk if you're chronically overstressed and overtired. Exercise also boosts creativity, problem solving ability and memory consolidation. Being fit and satisfied with your wellbeing will improve your mood and overall perceived happiness and satisfaction with life. So, in the workplace this translates to being more motivated and productive; energetic people are also able to form good relationships with others, so in essence, you can't really separate your fitness and emotional health from your work life. It will absolutely have an influence.
What was your main aim for Psycle? How have you seen the progression and impact it has on clients?
For me, Psycle is about the transformative power of movement. Once you get into exercise you realise that it's one of the most important and impactful tools you have at your disposal that can help you change your state. It gives you headspace, floods your body with beneficial hormones and neurotransmitters that boost your mood. It can be whatever you need - fun, energetic, relaxing, powerful, challenging. I'm passionate about helping people fall in love with movement and really value their health - and it's been an incredible thing to witness with our clients. Whether people have transformed physically or made it through emotionally challenging events by coming to Psycle, there's something incredible to be said about how much you can really take charge of your mind and body just through exercise. It's quite inspiring.
Do you have a ‘go-to’ activity which you would recommend lawyers, or busy workers to try out once a week?
I always recommend a Ride class at Psycle - for me, it's hands down the most effective way to workout AND get an incredible mental release. But the most important thing is to find a workout that you enjoy and commit to it. If you like all types of workouts - then you can have some fun and play around with what you need. If you're run down and stressed, hit the mat for yoga. If you want an amazing sweat and endorphin rush Ride is great. Strength classes are great if you want to feel more confident and powerful, so it's really about focusing on how you want to feel, rather than what you think you 'should' do. The only pre-requisite I would have is that you get something that can help you properly switch your mind off…that means no phones in the workout! It's as important for your mind as it is for your body.
Once you get into exercise you realise that it's one of the most important and impactful tools you have at your disposal that can help you change your state.
How is this different to joining gym?
Joining the gym is a completely different experience to boutique fitness. Gym sessions are self-led, so you automatically need to have a level of confidence and knowledge to be able to plan an efficient workout. Boutique fitness is fantastic for busy professionals because you're led through a class and don't need to think about what to do - you remain more focused, immersed, and will be able to actually switch your mind off, which is one of the most important parts of exercise in the first place.
Booking a session at a set time and making the commitment in advance is also more motivating. Workouts are easily the first thing you cancel when you have a busy schedule, so knowing that you have a set time slot which you've already paid for will give you more drive to make the time rather than backing out.
Lastly, group energy is so much more motivating and energising than working out solo - it's been proven that people work harder in groups, and there's an instant camaraderie established when you exercise with other people.
We decided to catch up with Selwyn Whitehead, after her engaging article on if bankruptcy is truly the end for businesses. This month, she touches on America’s history with tax, why tariffs were first implemented and how tariffs today will impact her country’s future.
Tariffs and trade: how has this affected (US) businesses so far?
Mightily, but before I go into the details, let me provide some historic context.
A brief history of tariffs and trade policy in the US:
Throughout our history, the US, as well as our predecessor individual colony/states, has waxed and waned between a protectionist and a “free trade” foreign economic policy stance, mostly landing on the side of protectionism, especially from our founding, through and to the end of WWII.
The rationale behind our erecting the initial trade barriers and implementing tariffs was two-fold. Firstly, the founders needed revenue streams to fund our post-founding central government, as had the individual colony-states. And after the War of Independence, the central government also needed the tariff-derived revenues to fund the debt service on the huge war debts we owed to counties such as France that had supported us during the War. Secondly, the founders, especially the faction led by our first US Treasury Secretary, Alexander Hamilton, as laid out in his Report [to Congress] on the Subject of Manufacturers (Hamilton 1791), believed that trade barriers and selectively high or moderate tariffs could and should be used to:
The Hamilton faction believed this approach was necessary to grow the United States into a manufacturing powerhouse that was independent from the control of foreign powers through our sole reliance on the production of goods and services for our domestic consumption, especially defence supplies. As such, they believed this isolationist protectionist posture was a matter of sound national security.
Hamilton also believed these policies would provide diversified employment opportunities for the Americans, promote immigration of new people from diverse backgrounds with new energy and new ideas into the US, and thereby expand the application of science and technology into all sectors of our economy, including agriculture, which was the focus of the anti-Hamilton, pro-Thomas Jefferson faction of our founders. Ultimately, Hamilton’s policies did bring about the desired results and proved to be the catalyst that grew the US to become the largest economy in the world with the highest standard of living.
The US government maintained its tariff-based funding policy until the implementation of the federal income tax in 1913 (the 16th Amendment) and its protectionist trade barrier policy until 1945, when by the end of WWII, we had destroyed the means of production of most of our industrial competitors in Europe and Asia. It was only then that we became “free traders” in any meaningful sense, partially because we had won the war, but more importantly, I believe, out of the recognition that it was only through cooperative mutually beneficial multilateral global trade and commerce would there be a chance to circumvent and stave off another even more disastrous world war in the 20th Century, one that would certainly have been fought with nuclear weapons.
I believe the recent implementations of US tariffs and re-erection of international trade barriers are wrong-headed
Jumping forward to today, I believe the recent implementations of US tariffs and re-erection of international trade barriers are wrong-headed in that their implementation has not been based on sound intellectually-based economic reasoning and therefore have not and will not serve the purposes for which they have been advertised. Inasmuch as these particular tariffs fly in the face of the philosophical, political, and public policy constructs that formed the foundation of Hamilton’s American School of Economics, which was ultimately adopted by the Jefferson faction; that is to say that tariffs should be used selectively to enhance the natural evolution of free markets in order to either: a) fund and/or stabilize our government and promote sound fiscal and banking policy; b) fund and/or protect the growth of our future-focused industries, especially nascent ones with high domestic utility, security and employment potential, such as those that advance the use AI and Industrial IoTs while safeguarding our privacy and the inviolability of our voting booths , and/or, c) fund the implementation of innovative national infrastructures that will increase both domestic and international commerce such as the expansion of 5G-based communications systems, which in turn will lead to full employment in industries that provide high wages for our workers.
These tariffs are harming American producers of goods that world markets currently have a need for and want to buy
Instead, these new tariffs have had the opposite effect. As a result of the implementation of these tariffs and the foreseeable retaliation of the countries towards whom they are targeted, our government has stated that it will soon provide tax-payer funded bailouts to our industries that have been harmed by foreign governments’ retaliation to these tariffs; hardly sound fiscal policy. In essence our government must now fund the mitigation of the harm it has caused by the implementation of tariffs it did not need to implement in the first place. And instead of protecting nascent forward-leaning future-focused American industries, these tariffs are geared towards reviving industries that have passed their prime or at least in their declining economic years. Finally, these tariffs are harming American producers of goods that world markets currently have a need for and want to buy and would buy from us, but for the need their governments perceive to be required in order for these governments to retaliate against us in what appears to be the beginning of a world-wide trade war.
There have been reports international businesses may suffer, or go bankrupt if tariffs change; what is your opinion on this?
Let’s use my home state of California as an example of the negative effects that could be brought to bear upon California businesses with an international reach as a result of these newly enacted tariffs and trade barriers. According to the 2 May 2018 analysis performed by the California Budget and Policy Center, a California-based think tank, California companies, as a whole, are not heavily dependent on the tariffs the Trump Administration has implemented. No strong positive or negative direct impact from the aluminum or steel tariffs on the state are expected, even though individual companies and projects may be affected. However, the same conclusion was not found for the retaliatory tariffs proposed by China. Their analysis found that these tariffs have “significant negative effect” on California companies and workers because of China’s designation as a key export market.
China accounts for $2 billion in exports for California’s agricultural industry, according to the California Farm Bureau Federation. Items like almonds, dairy, wine, cherries, and walnuts were notable exports that were impacted by the tariffs. Furthermore, these markets are not easily replaceable.
As such under this set of facts, many, if not most, of the California small family farmers growing these commodities may be forced into a Chapter 12 bankruptcy to salvage what they can from what may have been a multi-generation investment in the land.
According to the California Department of Food and Agriculture (CDFA), in 2016 California’s agricultural exports totalled $20.04 billion. The top three exports by value in foreign sales in 2016 were almonds worth $4.50 billion, wines worth $1.49 billion, and dairy products worth $1.41 billion. Focusing in on Chinese exports from the Golden State, in 2016 California farmers exported a total of $518.1 million in almonds (11.513…%), $161.0 million in wine (10.8054%), and $126.3 million in dairy products (8.957%) to China. So, the potential loss of $805,400,000.00 or more in sales per year to China will be very bad news for California farmers, especially small family farmers, even if they are fully compensated by the government on what will likely be a one-time basis, if at all, as this “compensation” will do nothing to assure these farmers that they will be able to recommence their exports to China if and when the retaliatory tariffs are lifted because in the interim China has other sources from which to buy these goods. Or worse, the end user consumer in China could acquire (or be instructed by her government to acquire) a change in her tastes for these commodities due to the lack of availabily of the products and no longer want them once their availably from the US returns. As such under this set of facts, many, if not most, of the California small family farmers growing these commodities may be forced into a Chapter 12 bankruptcy to salvage what they can from what may have been a multi-generation investment in the land.
LAW OFFICES OF SELWYN D. WHITEHEAD
4650 Scotia Avenue, Oakland, California 94605
Phone: 510.632.7444
Fax: 510.856.5180
Email: selwynwhitehead@yahoo.com
Web Site: www.selwynwhitehead.com
Selwyn D. Whitehead Esq. is a San Francisco Bay Area bankruptcy and tax attorney whose practice focuses on helping her clients manage their wealth through effective estate and tax planning and/or manage their debt through debt restructuring or bankruptcy. Selwyn also helps her clients facing foreclosure and represents clients with emotionally and financially “taxing” issues before the Franchise Tax Board, the IRS and the U.S. Tax Court.
Prior to going into private practice, Selwyn managed a group of attorneys and paraprofessionals in Fireman's Fund Insurance Company's Claims Department, where she was responsible for auditing the claims and case handling practices, performance, fees, and expenses of outside defence counsel. And prior to that assignment, she worked for many years as a financial services industry consumer advocate.
In this insightful article, Laura Tainsh, Lead Partner in the Environmental & Waste Team at Davidson Chalmers LLP, Globalaw, and Sean G. Herman, Environmental Attorney, Hanson Bridgett LLP, Globalaw, speak on what laws need to change in order for people to seriously address environmental concerns.
There has been a perceptible shift in the way that environmental issues generally are considered by the wider public over the last year, mostly as a result of the increased attention by mainstream media on issues such as plastic pollution in the marine environment. That shift has brought existing environmental law into sharp focus and may now become a force for change in the way that environmental issues are regulated, at least in the developed world. Whilst meaningful change takes time to bring about and implement, recent events have provided evidence of movement in both the political and regulatory spheres in both the UK and United States. In this article, we examine the forces behind these changes that will impact businesses operating in these jurisdictions.
Many feel that the white paper does not go far enough and leaves too many matters requiring clarification post-Brexit. This likely would include amending or creating new environmental legislation, a big task to wait until post-Brexit to address.
Brexit Remains Evergreen in the UK
From a UK perspective, the most obvious, topical and current example of both the need and the opportunity for change are the ongoing negotiations relating to Brexit which will, to some extent, determine how environmental concerns are regulated in the immediate future.
In early July, the UK Government published its highly anticipated white paper stating its negotiation position on Brexit[1]. After fairly considerable pressure from a number of those in the private, political and public sectors, the white paper includes a commitment to strong environmental protections, starting with the retention of all existing environmental standards imposed under EU law. However, many feel that the white paper does not go far enough and leaves too many matters requiring clarification post-Brexit. This likely would include amending or creating new environmental legislation, a big task to wait until post-Brexit to address. In order to ensure that various existing environmental concerns are properly addressed, all of the following points will need to be further considered and clarified in due course:
EU targets
The UK is currently breaching a number of targets set by the EU in areas such as waste, water and air quality. Whether these breaches will be resolved or effectively dismissed has not yet been clarified.
EU case law
The extent to which the UK will have regard to the remit and decisions of the European Court of Justice going forward is unclear. Environmentalists argue that these decisions are essential to the continuing development of environmental law in the UK.
Energy and Climate Change
How the UK will participate in the energy market post-Brexit has yet to be clarified. This includes whether the UK will leave the Internal Energy Market and how the UK’s technical rules for trading will compare to the EU Emissions Trading System (if indeed different). However, it is worth noting that the UK’s domestic legislative targets on climate change are more ambitious than required under EU law, meaning they are unlikely to change post-Brexit.
In both the UK and US, there is a fundamental need for legal clarity to provide the common ground needed to bring both the regulated community and environmentalists together to allow change.
Circular Economy
The EU officially published its circular economy package, with changes to directives on waste, packaging, landfill and WEEE, in June this year. Despite its impending exit from the EU, the UK has indicated that the measures required under the package will be adopted under domestic law, as there is substantial support across a number of sectors throughout the UK for closed loop and circular procedures to be utilised in relation to the management of natural resources.
Trade
In order to facilitate a continued trading relationship, the UK will need to ensure that with respect to certain goods - such as those which are heavily regulated, including chemicals, electronic equipment and agri-food products -, common environmental rules applicable in the EU are adhered to.
Notwithstanding the important interaction between the UK and the EU on environmental matters post-Brexit, the UK has expressed its commitment to upholding the obligations imposed under the many international agreements to which it is a party. That perhaps does go some way towards satisfying the wider global environmental concerns of domestic citizens, but it is arguable that more specific regulatory action, including both taxes and incentives, as appropriate, will be needed to make government bodies, business and individuals alike directly responsible for their actions.
From the US' perspective, two of the main environmental statutes, the Clean Water and Clean Air Acts, are nearly 50 years out of date.
Shifting Ground in the US
From the US' perspective, two of the main environmental statutes, the Clean Water and Clean Air Acts, are nearly 50 years out of date. Scientific progress since their enactment has widened gaps between our understanding of the environment and the statutes' original textual meaning. Until now, executive agencies have filled these gaps by relying upon regulations. However, as recent failures in water quality and greenhouse gas regulations demonstrate, this approach has shortcomings that demand Congressional action.
The Clean Water Rule
Since 1972, executive agencies have relied upon developments in hydrology to expand the scope of how they enforce the Clean Water Act. This came to a head at the Supreme Court in the 2006 case Rapanos v. United States in which a developer challenged a regulation of certain wetlands. Supreme Court Justice Anthony Kennedy argued that the Clean Water Act may be expanded to regulate waters with a proven "significant nexus" to navigable waters. However, the four conservative justices criticised this approach, forcefully arguing that the original textual meaning of the Act provided no basis for such an expansive interpretation.
The Obama Administration seized upon Justice Kennedy's "significant nexus" test and proposed the Clean Water Rule: a regulation that clarified and expanded the scope of federally regulated waters. The regulated community immediately challenged the regulation by arguing, in part, that it exceeded the Clean Water Act's textual authority. Once in office, President Trump's Administration began repealing the Clean Water Rule under the rationale that regulations must be confined to the statutory text.
The Clean Power Plan
Similarly, executive agencies have relied upon recent developments in climate science to identify and regulate pollutants like greenhouse gases. This came to a head at the Supreme Court in the 2007 case Massachusetts v. Environmental Protection Agency. There, a majority of the Court held that these scientific developments compel the EPA to take steps under the Clean Air Act to regulate greenhouse gases. Justice Kennedy joined the majority opinion, the lone conservative justice to do so. In dissent, the remaining conservative justices again argued that, regardless of the practical need to regulate greenhouse gases, the Clean Air Act's text does not provide the authority to force the EPA to do so.
Following the Massachusetts decision, the Obama Administration adopted regulations like the Clean Power Plan to address greenhouse gas emissions. Again, the regulated community challenged the regulation on the basis that it lacked textual authority and, again, the Trump Administration began repealing the Clean Power Plan under that same rationale.
Justice Kennedy's Retirement
The Trump Administration's efforts to limit the reach of federal regulations over businesses took a leap forward when Justice Kennedy recently announced his retirement from the Supreme Court. President Trump nominated Judge Brett Kavanaugh as his replacement, which at the time of this article is still pending confirmation. Judge Kavanaugh is a textualist with demonstrable concern for the growth of executive agencies. Had Judge Kavanaugh been on the Supreme Court instead of Justice Kennedy, the Supreme Court would likely have decided the Rapanos and Massachusetts cases differently. Therefore, the legal bases for environmental regulations like the Clean Water Rule and Clean Power Plan appear lost.
Oscillating between diametrically opposed regulatory approaches breeds uncertainty that is neither good for the environment nor businesses, for whom uncertainty often proves to be very costly.
Proposed Solution: Amend the Environmental Statutes
It seems the US cannot rely upon major regulations to alter the prioritisation of environmental issues. President Trump's election was not only a setback for progressive environmental regulation efforts, but it has now changed the Supreme Court such that it may be decades before we next see major regulations like the Clean Water Rule and Clean Power Plan.
Instead of new regulations, Congress needs to update its ambiguous, half-century old environmental statutes to adequately address modern environmental concerns. If textualism will define judicial review in the coming decades, environmental regulations must then be better grounded in Congressionally-sanctioned statutes.
Importantly, updating environmental statutes will benefit the regulated community. Ambiguous environmental laws allow for paradigm shifts depending on who is president as demonstrated by the elections of Obama and Trump. Oscillating between diametrically opposed regulatory approaches breeds uncertainty that is neither good for the environment nor businesses, for whom uncertainty often proves to be very costly.
The Need for Clarity
In both the UK and US, there is a fundamental need for legal clarity to provide the common ground needed to bring both the regulated community and environmentalists together to allow change. The role of environmental lawyers in both jurisdictions is at pivotal point. With change of this significance on the horizon, it is vital that lawyers in this field are ahead of the game and aware of political and policy drivers as well as those which are directly based in regulation.
[1] https://www.gov.uk/government/publications/the-future-relationship-between-the-united-kingdom-and-the-european-union
Laura Tainsh
Lead Partner in the Environmental & Waste Team
Davidson Chalmers LLP, Globalaw
Laura Tainsh is the Lead Partner in the Environmental & Waste Team at Davidson Chalmers LLP, a full-service commercial law firm based in Edinburgh, Scotland. Laura is a Chartered Waste Manager with the Chartered Institution of Wastes Management, the only solicitor in Scotland to have obtained this accolade.
Sean G. Herman
Environmental Attorney
Hanson Bridgett LLP, Globalaw.
Sean is an Environmental Attorney with Hanson Bridgett LLP, a full service law firm based in San Francisco, California. Sean represents private and public clients alike, including manufacturers, retailers, farmers, and governmental entities such as counties, water districts, and waste management authorities.
More than a small handful of Gmail’s 1.4 billion users went into panic mode last month, when the papers headlined that the widely accredited email server allows external companies to ‘read’ their users’ private emails. It was reported that users that connect to third party apps to their Gmail accounts, gave permission for their emails to be read, however, when linking to external services, the conditions state that by accepting you grant permission for Gmail to ‘read, send, delete and manage your email’.
So, did Google do anything wrong? Not really, as they had informed you beforehand to what was occurring, but why was everyone so mad?
A survey from Deloitte[1] revealed that 90% of consumers accept legal terms and conditions without reading them.
Do We Really Read the Conditions?
The outrage felt with Google is likely down to users being unaware, as quite often, people miss conditions that may push them to reconsider signing up.
Late last year a survey from Deloitte[1] revealed that 90% of consumers accept legal terms and conditions without reading them. Their survey which questioned 2000 consumers in the US also showed that people would rather accept possible future consequences by clicking ‘I agree’, in exchange for access to the service they are seeking. And it probably won’t be surprising news that this is more common for younger adults aged 18-24, where 97% avoid reading the hefty lists of conditions.
As Stewart Croft, a Solicitor from QualitySolicitors AcklamBond also states: “Research by communication professors Jonathon Obar of York University in Toronto and Anne Oeldorf-Hirsch of the University of Connecticut showed that only a quarter of people bother to look at Terms & Conditions (T&Cs), with the vast majority spending less than a minute poring over the complex language and conditions set out within. This is concerning given people blindly trust there is nothing unfavourable in the T&Cs, but it’s hardly surprising.”
With most consumers assuming that the worst thing a company will do is sell their email to a third party for them to receive endless amounts of spam mail, those partaking in the survey also believed the language was too long winded and complex, which, we cannot disagree with.
It would take around 86 minutes for you to have any idea to what you are truly signing up for when you click ‘I accept’ on Instagram.
We cannot blame consumers for snoozing the overabundance of mind-numbingly, boring text, as after all, they aren’t expected to be lawyers or analysts with masses of time and brain power to read through the fine lines.
A rather smart artist[2] had a clever way of showcasing the issue: Dima Yarovinsky printed the T&Cs of leading online services – from Instagram to SnapChat -, on A4 paper. The list was long. Dima shared the word length and the average time needed to read the entire T&Cs from back to back; to give insight, it would take around 86 minutes for you to have any idea to what you are truly signing up for when you click ‘I accept’ on Instagram.
The design also makes a difference: when the layout is more ‘inviting’ and enables people to consider their options, some are more inclined to review their options. Rainer Böhme of UC Berkeley and Stefan Köpsell of Dresden’s Technische Universität, tested this out, and their conclusion as reported by The Guardian[3]: “Ubiquitous EULAs [end user license agreements] have trained even privacy-concerned users to click on ‘accept’ whenever they face an interception that reminds them of a EULA.”
T&Cs are more than just a ‘nice to have’, but are a legal necessity.
What Are the Current Requirements?
T&Cs are vital in order to avoid misunderstandings and disagreements, so parties can be fully aware of what they are signing up to and what is expected of them. The contract itself should state basic obligations and clarify what will occur if things were to go wrong[4].
As Stewart shares: “T&Cs are more than just a ‘nice to have’, but are a legal necessity. They set out the required data disclosures, usage rules, limitations and general relationship parameters users must agree to, in order to use the app. Most of the time we can presume nothing unforeseen will happen as a result of not reading the fine print, but there shouldn’t be a reliance on ‘safety in numbers’; when it comes to individual consumer contracts, there is no such thing.
“Well-drafted T&Cs can provide a whole host of benefits for both businesses and users; they set out expectations and rights, and protect other users from general misuse or abuse, but they can also determine liability limitations and stipulate which law applies in the event of a legal dispute.”
Conditions are legally binding, however, the ambiguous nature of online T&Cs has led to problems. More commonly, parties bound to T&Cs are given an opportunity to review what they are signing up for, even if a signature is not required. As we all know, the easiest, least time-consuming and the method that courts general prefer to gain agreement, is a simple click on an ‘I accept’ button. However, things can get a little confusing when companies assume your use of their website as an agreement to the T&Cs, which are hidden away on their website somewhere, or by emailing you their conditions and possible modifications.
How Companies Can Avoid Disputes
There should be a greater obligation still for apps with any unusual, unreasonable and onerous terms (such as charges for over-usage or in-app purchases) to bring these to the user’s attention to help avoid disputes from unhappy customers.
Where these may not be the traditional form of legally binding contracts, courts are more likely to recognise parties that clicked on an ‘agree’ button in order to continue or begin using the service they signed up for as a legal contract, rather than the buried away T&Cs companies hope their users will locate and read.
Clicking the ‘I agree’ button is not really the sole reason behind making this method more legally viable. It is the fact that the user was given a reasonable opportunity to read the terms and conditions, with little effort needed and that the agreement is not inconspicuous[5].
As EFF[6] (Electronic Frontier Foundation) quite succinctly summarises it, to avoid disputes as much as possible, your T&Cs should:
“All apps should make their T&Cs easily accessible and legible. There should be a greater obligation still for apps with any unusual, unreasonable and onerous terms (such as charges for over-usage or in-app purchases) to bring these to the user’s attention to help avoid disputes from unhappy customers”, says Stewart.
This even extends to radio. As Judith Spilsbury, Head of Special Projects at Radiocentre, said: “According to our research, 72% of radio listeners say they would prefer to read financial terms and conditions in their own time on a website. This should be an urgent incentive for the industry to rethink.
“People tend to listen to the radio at the same time as doing something else - whether that’s cooking, cleaning or driving – so they will simply ‘zone out’ if terms and conditions become too complicated. In fact, we have evidence to prove it – less than 4% of people recall the figures from financial terms and conditions just after hearing an ad on the radio.”
Saving Face and Welcoming Change
Novel long contracts are seldom read by the user, but once they are exposed to a significant, but hidden away sentence signing away their rights, the uproar and backlash falls upon companies.
Ever since the Cambridge Analytica Scandal, users are far more concerned about how much of their data is being shared and if companies are adhering to privacy rights. But this isn’t a new issue. Back in 2012 Instagram had updated their privacy policy, stating that they had the right to sell users' photos to advertisers without notification and even though Instagram dropped the policy after public backlash, the popular app was believed to have lost nearly 50% of its users.
Of course, with a current estimated 800 million users, this unforeseen tiny mistake has not presented too much damage, but it could have easily have gone downhill, especially if users find out the hard way. So we ask, is the legally correct method enough? Novel long contracts are seldom read by the user, but once they are exposed to a significant, but hidden away sentence signing away their rights, the uproar and backlash falls upon companies.
Similar to Facebook’s ‘Who can see this?’ pop up link which explained privacy terms when a user tried to upload a photo, suggestions have been made to alter the design of T&Cs. Showcasing the specific condition when it is of relevance, may keep users better informed.
Perhaps a more traditional method: bullet points. Summarising the main points of T&Cs can cut down reading time and ensure users are aware of the more important parts, but this brings to surface a new problem: what part of the lengthy document do you section out?
Similar to how doctors adhere to an oath which is overseen by a governing body, maybe there should be an industry-wide code which all companies adhere to, as trust between consumers and businesses needs to grow.
Speaking to Sam Moore, Legal Technologist at Burness Paull LLP, it seems like a governing body could be a notion to support. He says: “Consumers don’t have an even bargaining position on app terms – you take them or you leave them. As a minimum then, it must be clear what the consumer is agreeing to. Some of this is about personal responsibility of course, but at the very least the important bits should be front and centre.
“Perhaps it’s time for industry standard formats, along the lines of food labelling, to give the user a graphical clue as to how secure their data is going to be. Who sets such standards? Well that’s potentially an even bigger problem. There is some precedent in the industry however – look at website security certificates, for example. A similar approach may work for apps, but it would require the ‘gatekeepers’ of app stores like Google and Apple to agree a common approach first.”
Or as David Hoffman, Professor at the University of Pennsylvania Law School, who researches the law and psychology of contracts, told The Guardian[7], maybe there should be a code of conduct for digital agreements. Similar to how doctors adhere to an oath which is overseen by a governing body, maybe there should be an industry-wide code which all companies adhere to, as trust between consumers and businesses needs to grow.
As Judith Spilsbury, explains: “Unfortunately, although their original intention of protecting the consumer is right, the long, confusing terms and conditions spiels [at the end of radio ads] are perceived by the majority of consumers as protecting the brand behind the ad, rather than the listeners themselves. This has a knock-on negative effect on brand trust and favourability.”
Should how we present T&Cs change? It seems like a bigger task than we think, however, not as big as reading the entire document Twitter presents prior to signing up, so…why not?
[1] http://uk.businessinsider.com/deloitte-study-91-percent-agree-terms-of-service-without-reading-2017-11
[2] https://www.designboom.com/readers/dima-yarovinsky-visualizes-facebook-instagram-snapchat-terms-of-service-05-07-2018/
[3] https://www.theguardian.com/technology/2017/mar/03/terms-of-service-online-contracts-fine-print
[4] https://www.lexoo.co.uk/blog/7-things-you-should-know-about-terms-and-conditions/
[5] https://termsfeed.com/blog/3-key-legal-cases-on-click-wrap/
[6] https://www.eff.org/wp/clicks-bind-ways-users-agree-online-terms-service
[7] https://www.theguardian.com/technology/2017/mar/03/terms-of-service-online-contracts-fine-print
Danielle L. Hargrove is the Owner of DLH ADR Solutions PLLC, proud United States Air Force veteran and independent provider of neutral services - solely as a mediator, arbitrator, facilitator and hearing officer. She speaks below on her decision to transform her practice and its impact on her life-work balance, as well as the different skill sets required of good mediators and arbitrators.
Tell us how you came to settle on an ADR practice?
As a former litigator, I tended to resolve issues for my clients by working with opposing parties and counsel before litigation became necessary or viable. I think I have a knack for meeting people where they are and helping them find ways to resolve issues in ways that best suit them. One day in 1995, a former opposing counsel asked if I would be willing to serve as a mediator in one of his cases. I’ve been mediating ever since. I began arbitrating commercial and employment matters in 2002, eventually expanding into labour arbitration. I love that I learn new things with each case and the varied parties and industries. With labour arbitration, the arbitrator must not be an advocate. This requirement led to me consider a full-time neutral practice. I do hope to expand my ADR practice internationally.
What personality traits or skill sets make for a good mediator and arbitrator?
The two couldn’t be more different. Whether arbitrating or mediating, it helps to be a good listener. I also attribute my success as a mediator to the following practices:
As the arbitrator, in addition to being a good listener, I strive for my decisions to reflect objectivity, thoughtfulness in considering both parties’ positions, and to provide a fair and just process. It perhaps goes without saying that competence, timeliness, and a judicial temperament and demeanour make good qualities in an arbitrator as well.
Describe a typical day, week or month?
On most days, I work from my home office, reading or studying pleadings and/or writing my decisions. On other days of the week, I travel to hear my cases. My neutral practice allows me to maintain a healthy work-life balance just to my liking.
Who hires you?
I am honoured to serve on several neutral administering rosters, to include the American Arbitration Association, the Federal Mediation and Conciliation Service, the National Mediation Board, and the Financial Industry Regulatory Authority. Lawyers or parties to a dispute select neutrals from these rosters, or I am duly appointed through these organisations. Public and private sector entities also select neutrals, through their representatives, as part of their dispute resolution or grievance processes. I am also sometimes selected on an ad hoc basis where the parties mutually agree to have me mediate or arbitrate a case.
Do you prefer mediating or arbitrating?
I can’t say I have a preference. I like exercising the different skill sets equally. I find great fulfilment in facilitating - helping parties hear and be heard. I also enjoy my role as an arbitrator and honest broker. As a neutral, I respect and honour the responsibility entrusted to me by the parties.
Danielle L. Hargrove
Attorney*Mediator*Arbitrator
DLH ADR Solutions PLLC
20079 Stone Oak Pkwy #606
San Antonio, TX 78258
210-313-8811
dlh@hargroveadr.com
Danielle L. Hargrove has been an active mediator since 1996 and arbitrator since 2002, primarily in commercial and labor and employment matters, working in both the non-union and union sectors in private and public employment. Danielle is an experienced neutral who manages the process with professionalism and impartiality. Her decisions are always properly grounded in fact, the law and appropriate case precedent.
With China progressing in every corner, the country has long been the place to keep an eye on, in terms of business and investment. Lisa Li, from Taylor Wessing, speaks on changes in her jurisdiction, what makes a 5star Lawyer and which industry often causes the most challenges in her line of work.
You advise on transactions in a variety of industries. What industry poses the most challenges, when foreign investors undergo acquisitions in China, and why?
The highly-regulated TMT sector.
First of all, a dozen areas are restricted or prohibited for foreign investment, e.g. telecom, online publishing, Internet audio & video programs, online grams, etc. In the next place, industrial specific licenses are required in most cases, which may prove difficult or even impossible to obtain because of high regulatory requirements and/or practical hurdles.
Due to the abovementioned market access restrictions, a number of foreign investors choose to conduct related business in China by entering into cooperation or licensing agreements with, or control through a series of contractual arrangements of, domestic Chinese enterprises holding the requisite regulatory licenses and approvals. However, such structures pose considerable legal and potential risks. Plus, project cooperation between domestic Chinese entities and foreign-invested enterprises in China, or foreign entities and individuals in certain fields (e.g. online publishing, Internet news information services), require prior approval or security review of the Chinese government.
In addition, if a foreign investor’s contemplated acquisition of the actual control of a Chinese enterprise touches upon key technology, the transaction will also be subject to national security review by the Ministry of Commerce, the National Development and Reform Commission together with other authorities. And foreign investors shall not evade the M&A security review through such manoeuvres as nominee shareholding, trust, multi-layer reinvestment, lease, loan, control by agreement, offshore structure, etc.
What three things do you consider before working with a team from various jurisdictions and backgrounds?
In today’s business world, there are an increasing number of cross-border transactions that involve multiple jurisdictions, and we have to often work with teams from various jurisdictions and backgrounds.
Firstly, effective “project management” is essential, which involves many aspects: engagement letter, fee estimation, step plan, timetable, proper allocation of tasks and liabilities, billing and cost control, etc.
Secondly, communication is key to accomplishing successful management of any matter. Communication means listening to understand, as well as passing on information, instructions and thoughts clearly. Regular meetings/conference calls are necessary.
Thirdly, people from different jurisdictions and backgrounds think and approach problems differently, and the laws and business practices vary from jurisdiction to jurisdiction. Respect, being courteous and understanding local ways of doing things are vital. Do not impose ideas, working methods and templates to other jurisdictions. Instead, it would be better to communicate in such a manner: “We propose to do like this, does it work in your jurisdiction?”
You have done a lot of work in the healthcare industry: how have you seen it change in China over the years?
As the Chinese government promotes the “Healthy China” strategic plan, the healthcare industry has developed rapidly, and numerous laws, regulations and policies have come out in recent years. Here are a few highlights:
Currently, overseas investments are classified into three categories, namely “encouraged”, “restricted” and “prohibited”.
What are the latest trends of China Overseas Direct Investment (ODI) regulations?
From the 1990-ties onwards, the regulatory requirements on China ODI had been gradually relaxed. However, in the last two years, we have seen a tightening of the regulatory regime and review practice for China ODI.
Currently, overseas investments are classified into three categories, namely “encouraged”, “restricted” and “prohibited”.
Additionally, National Development and Reform Commission (NDRC), Ministry of Commerce (MOFCOM), People’s Bank of China and State Administration of Foreign Exchange (SAFE) stated in December 2016 that they are closely monitoring the following four phenomena:
The Chinese ODI regulators (i.e. NDRC or its provincial counterpart, MOFCOM or its provincial branch, SAFE and banks) strengthen authenticity and compliance review of ODI deals, and require Chinese investors to provide substantially more documents and information.
Here are my recent newsletter articles on China ODI related topics on the Taylor Wessing website.
What do you think is key to becoming a 5Star Lawyer in Corporate Law?
Above all, to stand out the crowd, one should never stop learning and improving. A corporate lawyer should have a broad spectrum of knowledge: not only corporate law, but also other areas of law; not only legal provisions, but also practices; not only legal, but also other fields, in particular business. On top of acquiring solid technical skills including legal research, legal analysis and legal drafting, an excellent lawyer should also develop strong interpersonal and leadership skills.
Quality legal services should always be client-oriented. And thus, a lawyer should understand the clients, their positions, the business drivers behind a deal, and the clients’ expectations. Identifying legal issues or risks is far from enough. More importantly, an excellent lawyer should be capable of finding legally feasible solutions that can fit into the clients’ business objectives.
Furthermore, committed, dedicated, well-organised, detail-oriented and efficient are all the indispensable qualities to succeed as a lawyer.
Is there anything you would like to add?
Nothing worth having comes easy, strive for it, and efforts will be paid off.
Xiang (Lisa) Li
Associate
Direct +86 10 8593 0228
E-Mail x.li@taylorwessing.com
Taylor Wessing Beijing Representative Office
B-12 Jianguomenwai Avenue, Twin Towers, West Tower Unit 2307
100022 Beijing
I am Ms. LI Xiang, a corporate/M&A associate based in the Beijing office of Taylor Wessing.
I focus on advising multi-national companies and medium-sized enterprises in connection with their M&A in China (including acquisitions of non-listed public companies quoted on the National Equities Exchange and Quotations, state-owned enterprises and private companies), as well as Chinese listed companies and state-owned enterprises on their overseas M&A and investments. I also have experience in capital market, RMB private equity fund formation, private equity investment, etc.
I graduated from Peking University with dual bachelor’s degrees of law and economics, and obtained Master of Laws in Corporate and Financial Law from the University of Hong Kong.
Taylor Wessing is full-service international law firm with 32 offices across Europe, Asia and the US. The firm has around 400 partners and over 1100 lawyers, working with clients from a variety of industries, in particular TMT, life sciences, energy and private wealth.
