Antitrust in Asia has become a key consideration for international businesses operating in the region, according to Freshfields Bruckhaus Deringer (Freshfields). Changes in the region’s competition law landscape in the past five years have seen key regional markets entering the realm of enforcement – particularly Hong Kong and a host of ASEAN members – and existing competition regimes being strengthened at an unprecedented pace. At the same time, enforcement activity has intensified significantly in key markets such as China, Japan and South Korea, with regulators becoming more robust and exploring new targets for future enforcement.

These are among the findings of a new Freshfields publication, Antitrust in Asia: the business impact of fast-evolving competition laws, published today. The report identifies overarching legislative and enforcement trends and provides market-by-market snapshots of the current state of competition law and enforcement in 19 Asian markets, as well as the implications for international businesses.

“Undeniably, the centre of gravity of global competition law enforcement has shifted closer to Asia,” said Alastair Mordaunt, partner and co-head of Freshfields’ Asian antitrust, competition and trade practice. “While there are still huge variations across the region in terms of economic and political development, we are seeing Asian markets take a much more vigorous and sophisticated approach to competition law enforcement, and companies should take notice.”

• New enforcers, greater enforcement. In the short time since its competition law came into force, China has established itself as one of the world’s most active competition law regimes, intervening in global transactions and aggressively pursuing infringements by domestic and foreign companies. Well-established authorities such as the Japan Fair Trade Commission (JFTC) and the Korea Fair Trade Commission (KFTC) have grown increasingly robust. The KFTC imposed total fines of US$760m in 2016, for example – almost double that of the US. In 2017, it imposed a fine of around US$900m on Qualcomm. Singapore and India have also evolved markedly. In Hong Kong, one of Asia’s youngest competition law regimes, the Competition Commission is proving to be a serious enforcer. In the medium term, a number of highly sophisticated competition authorities will likely emerge in Asia.

• Cartels, leniency and whistle-blowers. Cartels remain an enforcement focus in most Asian jurisdictions, including China, Hong Kong, India, Indonesia, Japan, South Korea, Malaysia and the Philippines. Indonesia’s KPPU levied a record fine of approximately US$9m in a poultry cartel case in 2017. Bid-rigging is one of the most commonly targeted types of cartel behaviour. Most Asian jurisdictions have adopted leniency programmes, which have proven to be surprisingly effective in obtaining key evidence to combat cartels, particularly in Japan and South Korea.

• Targeting new theories and adding new tools. As Asian competition authorities become more sophisticated, they are taking on more complex cases, which in turn require enhanced enforcement powers. A number of them have developed a remarkable enforcement record against non-cartel types of antitrust infringements such as abuse of dominance. Some regulators have also demonstrated a strong interest in novel antitrust issues involving the digital economy and intellectual property rights. In 2015, China imposed its largest-ever antitrust fine of RMB6.1bn (approximately US$975m) on Qualcomm for abusing its dominance by charging discriminatory royalties for access to certain standard essential patents (among other issues). More recently, Taiwan fined Qualcomm US$774m in relation to the same issue.  Asian competition authorities are also taking on cases involving other complex theories of harm. The JFTC recently took the unprecedented step of challenging Amazon’s ‘most favoured nation’ clauses in its agreements with retailers.

• Merger control broadening and deepening. Merger control enforcement has become increasingly active in a number of Asian jurisdictions. Of the 1,936 transactions cleared by China’s Ministry of Commerce since 2008, for example, around 70 per cent were reviewed since 2013. Not only are more transactions being reviewed, but the scope of reviews is also broadening: certain Asian regulators have shown willingness to intervene in foreign-to-foreign transactions when their domestic markets or national interests are at stake, sometimes even blocking deals that all other jurisdictions had cleared. Regulators are also monitoring and getting stricter about late and missed filings. The Taiwan Fair Trade Commission, for example, can now fine companies up to US$1.7 million for a missed filing, while Indonesia’s KPPU has in recent years issued a fine of US$600,000 for a late filing against a non-Indonesian company. With enforcement becoming more active and more sophisticated, merger control in Asia has become a key consideration for transacting parties around the globe.

• Active international co-operation and co-ordination. Co-operation among competition authorities globally has never been as active as it is today, and Asia is no exception. Over the past few years, Asian competition authorities have been engaging in regular bilateral and multilateral meetings with their foreign counterparts both within and beyond Asia, to discuss general issues in competition law as well as specific cases. As competition authorities in Asia have gained experience, they have become more confident in joining competition authorities in other regions to crack down on multijurisdictional infringements when there is a local connection. Companies can no longer assume that Asian regulators will take a back seat when European or American authorities are involved in a global investigation.

“With competition regimes emerging and strengthening in Asia, companies doing business here will need to invest more resources to ensure compliance with the region’s diverse laws and enforcement practices,” said Kaori Yamada, partner and co-head of Freshfields’ Asia antitrust, competition and trade practice. “Appropriate training, policies, procedures and internal reporting mechanisms can all mitigate the risk of infringement, but in-house legal teams need to keep these under constant review to keep pace with the region’s rapidly evolving landscape.”

(Source: Freshfields)

A District Court judge in California recently wrote in a retrial for the Apple Vs Samsung case surrounding three iPhone 3G patents. The retrial date is set to take place between May 14^th and May 18^th of next year.

The patents in question relate to the "black rectangular front face of a phone with rounded corners," "the rectangular front face of a phone with rounded corners and a raised rim," and "the grid of 16 colourful icons on a black screen."

If Apple win or lose, what is the impact for the IP sphere worldwide? What can we expect from large firms with expensive money worth component production? What kind of reactions will we see in the tech world? Are other sectors impacted? What other legal ramifications exist?

Here, Laurie Heizler, Of Counsel in the IP, Tech & Media team, Barlow Robbins, provides his thoughts on the matter:

“This case is now only about money and how Samsung might minimise the profits they must pay to Apple without a further judicial examination into the way in which accounts of profits are calculated.

“Parties in similar situations are worried that if the Federal District Court leans in favour of a “total profits” award, it would open the floodgates to weak IP infringement claims being brought simply to extort disproportionate settlement awards. However, this fear is somewhat unjustified: account must be taken of the US Supreme Court’s decision last year, rejecting Apple’s argument that it is entitled to an amount totalling the fact that it lost profits every time an infringing Samsung phone was chosen instead of an iPhone.

“If this case isn’t settled before the May 2018 deadline, the Federal Court will have to work out an alternative payment calculation that represents the part of Samsung’s product that has a value on account of the infringement (the remainder being features and functionalities that make the Samsung phone attractive regardless of Apple’s rights).

“Issues relating to account of profits do not often appear in English law reports. However, it was clear from last year’s Jack Wills-v-House of Fraser trade mark case that net profits can be apportioned to relate just to the act of infringement. The principal is entirely reasonable even if the calculation is difficult, possibly never more so in the instance of highly complex products such as mobile phones.”

We would also love to hear more of Your Thoughts on this, so feel free to comment below and tell us what you think!

In light of recent celebrity workplace harassment claims, here Karen Plumbley-Jones, Managing Associate (Practice Development Lawyer) at Bond Dickinson LLP, discusses with Lawyer Monthly harassment in the workplace and the responsibilities of employers. This follows two recently published surveys, one carried out by ComRes for BBC Radio 5 on sexual harassment in the workplace and the other conducted by Opinium Research into workplace culture.

Maybe I've just been lucky, or maybe it's because I've spent the last 27 years employed by law firms with good working environments, but I've never been harassed at work.

According to two surveys published on 25^th October, one carried out by ComRes for BBC Radio 5 on sexual harassment in the workplace and the other conducted by Opinium Research into workplace culture, my experience may not be typical: between a fifth and half of British women have experienced sexual harassment in the workplace. Released the week after numerous sexual harassment and assault allegations started to surface against Harvey Weinstein, the US film producer and former film studio executive, I should not perhaps be shocked by the extent of the problem revealed by these reports.

However, two things struck me as alarming on reading the survey results:

• The reluctance of victims to report incidents to their employer – two-thirds of the women who experienced harassment and nearly 80% of the men took no action; and
• The failure of employers to take allegations seriously, with one-third of incidents not being followed up and nearly a fifth not even being acknowledged.

Employers are liable for acts of sexual and other harassment carried out by their employees in the course of their employment. The potential compensation is unlimited and the figures can be eye-watering; just two years ago, a woman who worked for a Russian bank was awarded nearly £3.2 million by an employment tribunal after she was bullied and sexually harassed by her manager. What happened to the manager? No action was taken against him and he continued to work for the bank for a year. When he eventually left, he received a payoff of £168,000. These sorts of figures do not take into account the reputational damage that a large claim can wreak or the legal fees and management time that have to be spent on defending a claim.

The number of sex discrimination claims declined sharply from July 2013, when employment tribunal fees were introduced and an individual had to pay £1,200 in order to bring a claim and get it to a hearing. However, fees were abolished by the Supreme Court in July 2017 and we may start to see a rise in claims as a result.

Employers have a defence to a claim if they can show that they took "all reasonable steps" to prevent the harassment taking place. This means much more than just having an anti-harassment policy; employers need to train all staff (including senior managers) on the types of behaviour that are unacceptable, what happens if they breach the policy, and what to do if they are a victim of harassment or harassment is reported to them. The organisation needs to create a culture where harassment is not tolerated and staff can speak out if they are harassed or witness a colleague being harassed. It may be stating the obvious but managers need to take all allegations seriously, which means carrying out a full investigation and taking action against the perpetrator if the allegation is upheld.

I thought that the bad old days of managers either tolerating an employee's harassing behaviour because "we can't afford to lose him", or giving the harasser a generous settlement agreement in order to persuade him to go quietly, were in the past. Sadly, it seems that I was wrong.

So far walkers have raised over £26,000 to support desperately needed free legal advice services.

Walk the Thames is a half or full marathon, following the Thames through the city of London and out to the Surrey countryside. It took place last Saturday, as some people ran it and a few cycled it. People from across the country walked together to support legal advice centres in England or Wales. High Court Judge Sir Charles Haddon-Cave led the runners and Sir Peter Gross Lord Justice of Appeal led the walkers.

The people that the advice centres help include families facing homelessness, elderly people requiring community care, trafficked women and children, disabled people, refugees, people who are facing unemployment and those with mental health problems.

These vulnerable people have suffered most during the recession.

Meanwhile, cuts in civil legal aid and council grants have made access to free legal advice much scarcer. Legal Aid firms in the high street have diminished rapidly, some advice centres have closed and most others have had to severely reduce casework staff.

Lawyers from all parts of the profession recognise the need for legal help for the vulnerable and came together to raise funds. The most senior judges walked side by side with law students; corporate lawyers and QCs with high street solicitors and caseworkers working in front-line advice centres.

Lord Justice Gross at Putney

Organisers expect the walk will raise at least £30,000 in total.

Vicky Ling, Chief Executive of the Trust says: “Free legal advice services change people’s lives, providing them with expert help in their hour of need. LLST work with the charities we fund to ensure every pound raised goes as far as it can to help the most vulnerable.

Thank you to everyone who has supported Walk the Thames thus far, and please do continue to sponsor your friends, colleagues, family members and clients to help us break the fundraising record!”

The walk started at 8.30am at Norton Rose Fulbright's offices (More London Riverside behind City Hall) and the first half marathon finished in Putney. The second half of the marathon began in Putney at 12:30pm. The full marathon and second half marathon finished in Hampton Court.

Sir Charles at the start, Norton Rose Fulbright offices

(Source: London Legal Support Trust)

The Bar Council has responded to the Lord Chancellor’s announcement of a post-legislative review of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012.

Chair of the Bar Andrew Landon QC said: “This long-awaited review offers the Government an important opportunity to take stock of the damage caused by the unprecedented cuts to legal aid that LASPO introduced and to reassess the value of justice to citizens. This review comes not a moment too soon; society has become increasingly aware of the importance of access to justice in underpinning the rule of law and our democratic constitutional arrangements.

“The announcement follows several years of sustained pressure from the Bar Council and many other organisations who work to promote the public interest of our citizens.

“The Bar Council looks forward to engaging constructively with this review and will continue to press for a wide scope which includes the impact of LASPO on society and considers the combined and interactive effect of legal aid cuts with welfare and other civil justice reforms.”

(Source: Bar Council)

Senior legal professionals are jeopardising their future career prospects due to a widespread lack of awareness surrounding new data privacy legislation. That’s according to new global research which reveals that if professionals fail to facilitate their data being stored by search firms, they stand to miss out on crucial career moves and the typical associated salary uplifts when the General Data Protection Regulations (GDPR) come into force in May 2018.

Legal professionals in danger of missing out on crucial career moves

The survey of over 350 global search firms: Unintended Consequences - Why GDPR could move executive careers into the slow lane around the globe was undertaken by GatedTalent, a GDPR compliance enabler for the search sector. It revealed that senior executives typically hear from a search firm at least once a year, while 32% of respondents expect this to happen three to five times a year.  For this to happen, search firms need to store information on executives – and the new GDPR regulation means that to comply with this many agencies will need to significantly alter their current practice.

As Dr Bernd Prasuhn of search firm Ward Howell who was interviewed as part of the research says: “If executives want to make it to C-suite level then they have to be on the radar of executive firms, otherwise it just won’t happen”.

Widespread lack of awareness surrounding GDPR

Despite this, few search firms that took part in the survey believe that professionals are conscious of just how much GDPR will impact their career progression. Jens Friedrich of search firm SpenglerFox, who was interviewed as part of the research, isn’t convinced that executives, who may be relying on an executive search firm to alert them to their next role, are fully aware of how GDPR may affect their career options, particularly as an executive will typically change jobs every 3-4 years. “I think a lot will depend on personal circumstances – whether they are already working in an industry which will be heavily affected, for example, or whether they have themselves been updated by an executive search firm. It will obviously vary from country to country but my feeling is that awareness among executives will be minimal”.

Commenting on the research, Jason Starr, CEO of GatedTalent says: “Our research clearly demonstrates that engagement with search firms plays a key role in the progression of talented and ambitious individuals.  However, few executives seem to realise the effect GDPR may have on their career and salary prospects and that its effects will be felt, not just within, but also outside the boundaries of the European Union – any executive whose information is stored in Europe is covered by these rules, be they European or not.”

“That said, a proactive executive will find that GDPR also poses ample opportunities for executives to forge closer relationships with a select number of search firms and offers the chance to update them with their latest information on current role, seniority and aspirations through platforms such as GatedTalent – the global database of ‘gated talent’, which can only be a good thing if they want to develop their career as effectively as possible.”

(Source: GatedTalent)

Allen & Overy has advised the joint lead managers and joint bookrunners in connection with the offering of USD2 billion sovereign bonds by the Ministry of Finance of the People’s Republic of China.

This is the first foreign currency bond offering by the Ministry of Finance since 2004. The USD2 billion sovereign bond issue consisted of a USD1 billion 5-year tranche and a USD1 billion 10-year tranche.

Commenting on the transaction, Allen & Overy partner Agnes Tsang said: “This capital raising demonstrates the Chinese Government’s commitment to international capital markets and reinforces Hong Kong’s status as a preeminent international financial centre.”

The Allen & Overy team in Hong Kong advised Bank of China, Bank of Communications, Agricultural Bank of China, China Construction Bank, CICC, Citigroup, Deutsche Bank, HSBC, ICBC and Standard Chartered Bank. It was led by Agnes Tsang, with support from lawyers Jaclyn Yeap, Tiffany Tse and Jiayin Yu.

Linklaters acted for The Ministry of Finance of the People’s Republic of China on its first US dollar sovereign bond issuance since 2004. This US dollar bond issuance underlines China’s drive to establish itself as a global player in the international markets as part of its “Going Out” and “Belt and Road” initiatives. Reflecting the international nature of the offering, the US dollar bonds are English law governed, cleared through Euroclear and Clearstream and issued in Hong Kong, helping to cement Hong Kong’s position as the leading international financial centre in China.

Importantly, the transaction provides a new yield curve for pricing future US dollar bonds issued by China’s corporates. Prior to this issuance, there was no official sovereign credit benchmark for corporate US dollar issuances out of China.

Linklaters has been advising on the Ministry of Finance’s bond issuances since 2009. Linklaters is the only foreign institution who has participated in all of the international offerings by the Ministry of Finance since 2009, including its London listed Renminbi bond last year - the first ever Chinese sovereign Renminbi bond issued outside of China.

The Linklaters team on this deal was led by partner William Liu, managing associate Karen Cheng and associates Libin Shi and Kate Yang.

(Source: Allen & Overy + Linklaters)

The French government is planning new legislation to combat sexual violence and harassment including street harassment such as cat-calling.

Criminals are working to out-do authorities on all levels, and one of the most common types of crime is fraud. This is because most of the time it happens right under your nose and before you know it, it's too late. Here Azizur Rahman, Senior Partner at corporate fraud solicitors Rahman Ravelli, talks to Lawyer Monthly about how businesses can prevent fraud and protect themselves from all angles.

In the digital age, the immense scale of multi-layered global trade chains - and the many legitimate trading processes and structures these allow - provide a number of ways for trade-based money laundering (TBML) to be carried out by criminals.

With Organised crimes costing the UK at least £24bn a year, according to the Home Office, it’s a worry that corporates need to heed.

TBML covers the wide range of intricate and complicated schemes used by criminals to disguise the origins of their money and integrate it into the legitimate economy.

“Transnational crime is worth up to £1.5 trillion a year, with the value of global TBML being estimated at hundreds of billions,” according to Romila Chowdhury, Global Strategic Intelligence Lead, Barclays Financial Intelligence Unit.

TBML is now a major concern for governments globally.

The UK recently hosted the first annual anti-corruption summit. World leaders, law enforcement agencies and businesses gathered to discuss ways to find new and more effective ways to tackle the challenges.

Azizur Rahman, Senior Partner at corporate fraud solicitors Rahman Ravelli commented: “Economic crime is ever-evolving as new technologies bring new opportunities and create a complex web for criminals to hide behind. At the same time, the regulatory landscape is also changing; bringing with it numerous challenges that can potentially make things even more complicated for businesses that want to protect themselves from such activity.”

How trade-based money laundering can affect your business

A global economic crime survey by PwC looked into the effect of TBML on businesses and organisations and noted that “the onus is now squarely on the shoulders of the business community to protect itself, and its stakeholders, from economic crime”.

In the financial services sector alone it found that:

-     1 in 5 had experienced enforcement actions by regulators

-     Over 25% were yet to conduct risk assessments across their entire global footprint

-     33% cited issues with data quality that led to only 50% of TBML incidents triggering security alerts

“But,” says Imran Farooqi, Partner at PwC, “it’s not just financial services institutions. Any organisation that facilitates financial transactions – including non-bank money service businesses such as digital/mobile payment services, life insurers and retailers, to name a few – is also coming within the scope of anti-money laundering legislation worldwide.”

Using technology to protect your business

At the top end of the scale, anti-money laundering programmes offer businesses a suite of services and technology that allow you to apply strict customer identification verification and implement automated transaction-monitoring policies and procedures. These digital detectives search for ‘eDNA’ behind transactions and highlight any suspicious signs of criminal fingerprints that are found.

At a simpler level, there are more manual ways to use technology that allow businesses to check for signs of TBML.

These include:

1. Conducting internet searches if transactions arouse suspicion;
2. Your buyer should have an online profile of some form if they are legitimate;
3. Online news alerts may raise doubts – suspicious shell companies have often been reported on previously in high-profile financial crime cases;
4. Online street views and maps may reveal inappropriate looking locations;
5. Setting up automatic alerts to flag unusual transactions;
6. From jurisdictions known to be high risk;
7. Exceeding your expected levels;
8. Carrying unusual client profiles;
9. Involving high degrees of complexity;
10. With invoice and payment details that do not match;

TBML: the price of inactivity is just too high to ignore

A passive approach to detecting and preventing economic crime is not enough. The costs are just too high.

Julian Dixon, CEO of anti-money laundering specialist Fortytwo Data, says: “The tentacles of anti-money laundering regulations are reaching deeper into more industries than ever before. Estate agents and casinos are two sectors facing more stringent requirements, thanks to the latest EU money laundering directives. The importance of these checks on your clients should not to be understated and suspicious activity identified in one company can lead to the dismantling of entire criminal networks.”

Legislative and regulatory changes have made it abundantly clear that the responsibility for preventing, protecting and responding to economic crime rests firmly with businesses and organisations.

Put simply, trade-based money laundering can cost you your reputation, your finances and so much more.

In order for the United States to properly capitalize on the full safety and efficiency benefits of drones, a workable regulatory framework to allow safe operations over people is required. Whether drones are being used to respond to natural disasters like hurricanes, or deliver packages, or gather the news, companies need to be able to fly in urban and suburban environments, where people are. Under the current regulatory framework for commercial drone operations in the U.S. (Part 107), drone flights over people are prohibited without a waiver from the FAA.

As of today, the FAA has issued 1,317 Part 107 waivers. Only seven of them (or .005%) allow drone operations over people. While the odds of filing a successful waiver application for operations over people may seem daunting, CNN's new waiver will now open the door to additional approvals for other industry partners.

Here's why. When applying for a Part 107 waiver, applicants need to submit a safety case that demonstrates that the proposed operation under the waiver can be conducted safely. In the context of a waiver for operations over people, the primary concern is the risk posed to exposed people on the ground below where the drone is flying. But how should the risk be assessed, and what factors should be considered? Should the risk to people on the ground depend solely on kinetic energy at impact (i.e., how hard a drone would hit someone if it fell from the sky), or should other factors, like vehicle reliability, the operator's safety history, and ground population density also be considered?

Until recently, the FAA took a worst-case scenario approach to analyzing the risk posed to people on the ground. The problem with this approach is two-fold. First, a kinetic energy injury-based approach will only work if the thresholds adopted are reasonable. Second, a kinetic energy injury-based approach fails to account for the full scope of operational and technical mitigations adopted by many sophisticated commercial entities to help ensure safety.

As part of CNN's pathfinder partnership with FAA, CNN developed an alternative "Reasonableness Approach." Under this approach, the FAA would consider more than just kinetic energy; the agency would also look at pertinent factors like the operator's history of safe operations, internal company safety procedures, and design features of the UAS that enhance safety.

"The Reasonableness Approach is precedent-setting and a critical step forward for the industry," said Emily Avant, senior counsel for CNN. "We are grateful for the assistance of the Hogan Lovells team as we continue to push UAS policy boundaries forward."

"CNN's new waiver represents a very important development for the commercial drone industry at large," said Lisa Ellman, Chair of Hogan Lovells' global UAS practice and Co-Executive Director, Commercial Drone Alliance. "The FAA's willingness to approve reasonable waiver requests is a strong step in the right direction as we seek to bring the benefits of commercial drones to the American people."

"Many of today's most promising and innovative commercial drone operations require the ability to fly over people," said Matt Clark, senior associate in Hogan Lovells UAS practice group. "This waiver creates a powerful precedent that will benefit the entire commercial drone industry."

(Source: Hogan Lovells)