Employees & privilege: dominant purpose, waiver and iniquity

Two recent English decisions highlight the particular challenges when managing legal professional privilege in the context of resolving employee issues.

We consider these decisions and how the principles may apply in Hong Kong and other common law jurisdictions in relation to dominant purpose, waiver and iniquity and the lessons that they provide to employers in the context of employee investigations and disciplinary actions. Continue reading

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Want to know more about the Asian Infrastructure Investment Bank?

AIIB and HKIAC are presenting a joint seminar on the AIIB’s status, policies and projects on 21 February. The seminar, which is supported by Hong Kong’s Department of Justice and the ICC, features:

  • an interview with AIIB’s General Counsel, Gerard Sanders
  • a presentation from AIIB’s head of corporate Law, Peter Quayle, on the international legal status of AIIB and dispute resolution
  • a roundtable discussion on what makes a “shovel-ready” AIIB project involving AIIB’s senior legal consultant, Jennifer Handz

Other speakers include Sarah Grimmer, Secretary General, HKIAC, Wesley Wong SC, Solicitor General, Department of Justice, and representatives from Hong Kong’s legal and banking sectors.

Anita Phillips, a professional support consultant in Herbert Smith Freehills’ Hong Kong disputes practice, will speak at the dispute resolution session. She joins Matthew Gearing QC, chairperson, HKIAC, Peter Quayle, Dr James Ding, commissioner, Inclusive Dispute Avoidance and Resolution Office, Department of Justice and Stephen Revell, senior corporate partner, Freshfields Bruckhaus Deringer. Anita has helped lead global research on redefining dispute resolution and also assists with the ICC’s Belt and Road Commission.

To register for this seminar, please click here.

Date: Feb 21, 2019 (8:30 AM – 12:45 PM)

Venue: HKIAC, 38/F Exchange Square II, 8 Connaught Place, Central, Hong Kong

 

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No U-Turns Ahead: Singapore Court of Appeal holds that commencement of court proceedings may lose you the right to later rely on arbitration agreements

In the recent landmark decision of Marty Ltd v Hualon Corp (Malaysia) Sdn Bhd [2018] SGCA 63, the Singapore Court of Appeal held that the commencement of court proceedings notwithstanding the existence of a binding arbitration agreement and without any explanation or qualification is in and of itself sufficient to constitute a prima facie repudiation of the arbitration agreement. Counterparties who have accepted the court’s jurisdiction would correspondingly be deemed to have accepted the repudiatory breach, and will also no longer be entitled to insist on adherence with the arbitration agreement.

The Singapore Court of Appeal’s decision is noteworthy as it departs from longstanding authority that the mere commencement of litigation proceedings would not constitute repudiation of the arbitration agreement. The Court also provides important guidance to parties to Singapore seated arbitrations on whether (and when) it is appropriate to commence litigation in circumstances where an arbitration agreement exists, and how to react if a counterparty does so.  We analyse the decision below. Continue reading

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HONG KONG’S FUNDING LAW NOW IN FORCE

Hong Kong’s long-awaited legislation permitting third parties to fund arbitrations and related proceedings takes effect today. As heralded in our earlier posts, this is a widely welcomed development in one of the world’s leading arbitral seats, and is expected to generate considerable activity.

If you have questions on the new law, funders’ Code of Practice, or third party funding generally, please contact Justin D’Agostino, Simon Chapman, Dominic Geiser, Briana Young, or your usual Herbert Smith Freehills contact.

 

Justin D'Agostino
Justin D'Agostino
Global Head - Dispute Resolution; Managing Partner - Asia
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+852 2101 4010
Simon Chapman
Simon Chapman
Partner, Hong Kong
Email | Profile
+852 2101 4217
Dominic Geiser
Dominic Geiser
Partner, Hong Kong
Email | Profile
+852 2101 4629
Briana Young
Briana Young
Professional Support Consultant, Hong Kong
Email | Profile
+852 2101 4214

 

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Filed under ADR, Announcements, Arbitration, Funding, Hong Kong

Singapore: Herbert Smith Freehills advises on third-party funded arbitrations and contributes to leading publication on litigation funding

Singapore introduced legislation in 2017 to allow third-party funding in international arbitration and associated proceedings including enforcement and mediation. Our Singapore team is already representing clients in two significant Singapore-seated arbitrations in which the claimants are third-party funded. It is understood that these are amongst the first funded arbitrations in Singapore.

In the light of these exciting developments, Herbert Smith Freehills’ Alastair Henderson, Daniel Waldek and Emmanuel Chua discuss the legal landscape and trends in the Singapore chapter to the 2019 edition of Getting the Deal Through: Litigation Funding.

The Guide provides expert local insight into third-party funding and related laws, and answers key questions in 21 jurisdictions. Topics covered include: (i) whether third-party funding is permitted; (ii) funding options; (iii) fees and interests funders may charge; (iv) conditional or contingency fee agreements: (v) applicable legislative/regulatory provisions; (vi) termination of funding; (vii) after-the-event insurance; (viii) costs of litigation, adverse costs and security for costs; and (ix) disclosure and privilege. The Guide will be of interest to third party funders, lawyers and end-users of dispute resolution processes alike, to understand and navigate the latest developments in this area of the law.

Click here to view this publication.

Should you have any questions about third party funding in Singapore, please contact Alastair Henderson, Daniel Waldek or Emmanuel Chua.

 

Alastair Henderson
Alastair Henderson
Managing Partner, Southeast Asia
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+65 68688058
Daniel Waldek
Daniel Waldek
Senior Associate
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+65 68688068
Emmanuel Chua
Emmanuel Chua
Senior Associate
Email | Profile
+65 68688027

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Filed under ADR, Announcements, Arbitration, Singapore

HERBERT SMITH FREEHILLS CONTRIBUTES TO LEADING PUBLICATION ON LITIGATION FUNDING

Hong Kong has recently seen a flurry of legislative activity in relation to third-party funding. The long anticipated law allows third parties to fund arbitrations seated in Hong Kong including related court and mediation proceedings, as well as work done in Hong Kong for arbitrations seated elsewhere. These legislative changes will come into force on 1 February 2019. In the light of these significant changes to the legal landscape, Herbert Smith Freehills’ Simon Chapman, Dominic Geiser, Briana Young and Priya Aswani have contributed the Hong Kong chapter to the 2019 edition of Getting the Deal Through: Litigation Funding.

The Guide provides expert local insight into third-party funding and related laws, and answers key questions in 21 jurisdictions. Topics covered include: (i) whether third-party funding is permitted; (ii) funding options; (iii) fees and interests funders may charge; (iv) conditional or contingency fee agreements: (v) applicable legislative/regulatory provisions; (vi) termination of funding; (vii) after-the-event insurance; (viii) costs of litigation, adverse costs and security for costs; and (ix) disclosure and privilege.

It is hoped that the Guide will be of interest to third party funders, lawyers and end-users of dispute resolution processes alike, to understand and navigate the latest developments in this area of the law.

Click here to view this publication.

 

Simon Chapman
Simon Chapman
Partner, Hong Kong
Email | Profile
+852 2101 4217
Dominic Geiser
Dominic Geiser
Partner, Hong Kong
Email | Profile
+852 2101 4629
Briana Young
Briana Young
Professional Support Consultant, Hong Kong
Email | Profile
+852 2101 4214
Priya Aswani
Priya Aswani
Professional Support Lawyer
Email
+65 6868 8077

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Filed under ADR, Announcements, Arbitration, Class actions, Funding, Hong Kong

Must reasons be given for removing a director: Hong Kong High Court takes a closer look

In Kenneth Yeung Bing Kwong v Mount Oscar Ltd [2018] HKCFI 2763, the Court of First Instance (“Court“) held that a Hong Kong company is not required to give any reasons for the removal of a director.

The Court rejected a contention that such an obligation should be read into the Companies Ordinance (Cap 622) (“CO“), and, in doing so, reviewed the statutory framework under the CO for the removal of a director and the relevant principles of statutory interpretation. Continue reading

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Filed under Corporate, Hong Kong

A significant step towards simpler judicial procedures and reduced re-litigation: Hong Kong and the Mainland sign a broader arrangement to recognise and enforce judgments in civil and commercial matters

On Friday 18 January 2019, Hong Kong and the Mainland reached a milestone by signing the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between the Courts of the Mainland and of the Hong Kong Special Administrative Region (“Arrangement“). When taken together with other similar arrangements that are in train, the Mainland Supreme People’s Court envisages that approximately 90% of judgments of a civil and commercial nature will soon be reciprocally recognised and enforced between Hong Kong and the Mainland. The Arrangement sets out, amongst others, the scope of judgments, jurisdictional grounds, grounds for refusing the reciprocal recognition and enforcement of judgments (“REJ“), and procedural requirements. It will be implemented by local legislation in Hong Kong and take effect after both systems have completed the necessary procedures to enable implementation. Once implemented, the Arrangement will apply to judgments made on or after the commencement date. Continue reading

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Filed under Announcements, China, Hong Kong

Japan and Hong Kong agree arbitration and mediation cooperation

On 9 January 2019, Hong Kong’s Department of Justice and the Ministry of Justice of Japan signed a Memorandum of Cooperation (MoC) to “strengthen collaboration on international arbitration and mediation“. The MoC, a copy of which is available here, provides a general administrative framework for cooperation between Japan and Hong Kong in relation to international arbitration and mediation. Continue reading

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Filed under ADR, Announcements, Arbitration

Hong Kong Court spits out ceviche: “objectionable” Peruvian fisheries business Chapter 11 trustee refused common law assistance

In a highly international cross-border restructuring, the High Court of Hong Kong has refused to assist the New York-based Chapter 11 trustee of a Singaporean subsidiary of the Cayman-incorporated Peruvian business China Fishery Group (“CFG”).

Significantly, the Court held that there was no way that the Chapter 11 proceedings could be recognised given the applicant had no connection to the US. Assistance was also refused on the grounds of public policy as Chapter 11 proceedings had been commenced for the purpose of preventing the enforcement of undertakings made by CFG group companies. This was held to be objectionable and an affront to the Hong Kong Court.

The judgment also reiterated the general principles of common law recognition and assistance to foreign insolvency proceedings and officeholders, but did not consider specifically how the Hong Kong Court would deal with a Chapter 11 recognition application. Continue reading

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Filed under Hong Kong, Insolvency