ESAPA Client eNewsletter

Australia

Contributed by Thomson Geer

Australian Foreign Investment Changes - Higher Monetary Thresholds for Certain Investors

By Eugene Fung, Partner; Melanie Mitchell, Special Counsel

There are some recent changes to the Australian foreign investment regime that may provide relief from the need to obtain regulatory approval for some cross border investors.

Under Australia's foreign investment regime, approval is required for acquisitions of land and businesses if the applicable monetary thresholds are exceeded. For investors that are not foreign government investors, the monetary threshold above which approval is required is currently A$310 million for acquisitions of non-sensitive entities, businesses (other than agribusiness) and developed commercial land. Higher monetary thresholds apply before investors from certain free trade agreement countries are required to obtain foreign investment approval for such acquisitions.

Read full article here.

Cambodia

Contributed by DFDL

Key Processes for the Negotiated Trading Method of Securities

By Chris Robinson, Partner & Head of Cambodia Corporate and Commercial Practice; Vansok Khem, Partner & Deputy Head of Cambodia Corporate and Commercial Practice

As the stock exchange market in the country develops, in addition to the regular auction trading method, block trades or special crossings (via the NTM) are also permitted, whereby the buyer and seller of listed shares can directly negotiate and agree upon the conditions of their transaction.

Read full article here.

China

Contributed by Allbright Law Offices

China is to Amend its Cybersecurity Law

By Sharon Shi, Senior Partner; William Shen, Consultant

The Cyberspace Administration of China released the “Decision on Amending the Cybersecurity Law of the People's Republic of China (Draft for Comments)” (the “Draft”) on September 12, 2022, seeking public feedback before September 29, 2022. The Draft proposes to adjust the types and the amount of administrative penalties for violations of cybersecurity protection obligations or for causing damages to network security due to violations. According to the Draft in cases of particularly serious violations, if such enterprises are obliged to conduct cybersecurity multi-level protection scheme (MLPS) assessment but fail to do so, these enterprises may be subject to a fine ranging from RMB1 million yuan up to RMB50 million yuan, or up to five percent of their previous year annual turnover. There is a significant increase of minimum fine to enterprises from RMB50,000 yuan to RMB1 million yuan.

Read full article here.

Hong Kong SAR

Contributed by Eversheds Sutherland

New Stablecoins Regulations in Hong Kong 2023/ 2024

By Rhys McWhirter, Partner; Frankie Tam, Of Counsel; Philip Chow, Registered Foreign Lawyer; Kenny Tam, Associate; Jeff Tian, Registered Foreign Lawyer; Jamie Leung, Associate

On the last day of January 2023, the Hong Kong Monetary Authority (“HKMA”) published the Conclusion of Discussion Paper on Crypto-assets and Stablecoins, summarising their responses to its consultation held last year. Importantly, the HKMA proposes to impose a new regulatory regime for stablecoins by 2023/24.

Read full article here.

Strength, Resilience, and Rebirth - What to Expect in the Year of the Rabbit

The transition from the Year of the Tiger to the Year of the Rabbit marks a good time for us all to take stock of changes and developments over the past 12 months, and look forward to what the new year may bring.

With this in mind, in this annual publication, we consider some of the increasingly important themes over the past year, and discuss their impact, as well as both the risks and the opportunities they may bring. These will range from the increasing cross-boundary inter-connections between Hong Kong and mainland China to the Hong Kong Court’s evolving approach to cross-border restructuring to the increasingly important regulatory and legal issues concerning ESG.

Read full publication here.

India

Contributed by Khaitan & Co

Advertising in the Digital Age: Endorsement Requirements for Celebrities and Influencers

By Harsh Walia, Partner; Shobhit Chandra, Counsel; Tanya Varshney, Associate; Sanjuktha A. Yermal, Associate

In contrast to traditional advertising (which would typically take place through television commercials, radio or print advertisements), advertisements in today’s day and age come in different shapes and forms. In this age of social media, users are vulnerable to covert advertisements and masked endorsements by celebrities and influencers who are promoting certain goods and services without the appropriate disclosures.

Read full article here.

Proposed Amendment to IT Rules 2021 | Online Gaming

By Ganesh Prasad, Partner; Surbhi Kejriwal, Partner; Tanu Banerjee, Partner; Supratim Chakraborty, Partner

On 23 December 2022, the Ministry of Electronics and Information Technology (MeitY) was notified as the nodal ministry for all matters related to the online gaming industry. On the heels of this development, MeitY on 2 January 2023, released the draft amendment (Proposed Amendment) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (IT Rules 2021), to bring in online games and online gaming intermediaries within the ambit of the IT Rules 2021. MeitY has invited feedback on the Proposed Amendment by 17 January 2023.

Read full article here.

Union Budget 2023 – Direct Tax Proposals

Read full proposal here.

Changes in India’s Overseas Investment Framework: Addressing the Round Tripping Dilemma

By Rabindra Jhunjhunwala, Partner; Sushmita Som, Associate

Over the past year, the Government of India (“GOI”) in consultation with the Reserve Bank of India (“RBI”) has overhauled the overseas foreign investment regulatory framework in India as part of its concerted efforts with a view to simplify the regulations governing offshore investments by and into Indian entities, liberalize the regime and promote the ease of doing business in India.

Read full article here.

Indonesia

Contributed by SSEK

Indonesia Introduces Electronic Stamp Duty: A Quick Update for Companies

By Michael S. Carl, Foreign Legal Advisor

The concept of electronic stamp duty (“e-stamp duty”) was introduced in Indonesia by Law No. 10 of 2020 regarding Stamp Duty (bea meterai), which came into effect on January 1, 2021 (“Stamp Duty Law”). The e-stamp duty was introduced to manage stamp duties for electronic documents, as more business was done online. To be clear, our reference to “electronic documents” in this context includes a document that is executed by electronic signature and also a pdf scan copy of a paper document signed with a wet ink signature. Both can be uploaded for e-stamp duty purposes.

The Stamp Duty Law defines a duty stamp (meterai) as a label or strip in patch or electronic form, or other forms with security elements issued by the Government of Indonesia, which is used to pay tax on documents. In general, an e-stamp duty has the same applications as a physical stamp duty.

Read full article here.

Criminal Liability for Corporations Under Indonesia’s New Criminal Code

By Michael S. Carl, Foreign Legal Advisor

Indonesia recently unveiled its new Criminal Code (Kitab Undang-Undang Hukum Pidana or “KUHP”). This article looks specifically at how the new KUHP affects corporations in Indonesia and key provisions of which companies should be aware.

Read full article here.

International

Contributed by Eversheds Sutherland

Competition Authorities Crackdown on Employment Markets: a New Era for Cartels

By Julia Woodward-Carlton, Partner; Peter Harper, Partner; Joshua Shapiro, Partner; Jocelyn Chow, Of Counsel; Martin Bechtold, Partner; Paul Fontes, Partner; Elizabeth Coleman, Partner; Nicola Holmes, Legal Director; Jenny Mann, Principal Associate; Emily Beighton, Associate; Woody Yim, Associate

At the end of last year, the US Department of Justice (DOJ) secured a guilty plea for wage fixing, resulting in its first criminal conviction.

This conviction is built on a foundation first laid by the DOJ and the US Federal Trade Commission (FTC) in October 2016 in joint antitrust guidance issued by the agencies for “human resources professionals.”

Read full article here.

Japan

Contributed by The Tokyo-Marunouchi Law Offices

Japan’s New Law on Workplace “Power Harassment”

By Kengo Ishikawa, Partner; Keith Finch, Foreign Counsel

In recent years the term “power harassment,” referring to workplace bullying, has entered the Japanese vocabulary. The term “power harassment” has evolved from the term “sexual harassment,” which already was known in Japan, and incorporates the concept of someone in a position of authority at the workplace who uses that authority (or “power”) to bully subordinates. Power harassment is a significant issue in Japanese workplaces because of the Japanese system of indefinite employment, or “lifetime” employment, which encourages workers to remain at a single employer throughout their entire careers and so makes it difficult for workers to leave their jobs if they are subjected to bullying in the workplace. Recently several incidents of suicides resulting from power harassment have been widely reported in the news media, thus raising the profile of this social issue.

Read full article here.

Korea

Contributed by Lee & Ko

Proposed Commercial Portrait Right Amendment to the Civil Act of Korea and its Potential Impact on Freedom of Expression

By Chunghwan Choi, Partner; Jai Hyung Lee Senior Foreign Attorney; Heeyoung Lim, Foreign Attorney

The Korean government recently previewed legislation regarding amendments to the Civil Act (the “Proposed Amendment”), which will provide statutory protections for certain rights to a person’s name, image, voice, etc. (the “Commercial Portrait Right”). Currently, the Proposed Amendment is following the process of review, including public comment. If enacted, the Proposed Amendment will likely become effective by the end of this year or early next year.

The present newsletter provides an overview of the Proposed Amendment and touches on some of the implications to the freedom of expression if the Proposed Amendment were to be enacted into law.

Read full article here.

Laos

Contributed by DFDL

Employment and Employee Benefits in Laos: Overview

By Kristy Newby, Partner; Standre Bezuidenhout, Partner

A Q&A guide to employment and employee benefits law in Laos.

This Q&A gives a high-level overview of the key practical issues including: the scope of employment regulation; employment status; background checks; regulation of the employment relationship (including unilateral changes by an employer to the terms and conditions of employment); minimum wage and bonuses; working time, holidays and flexible working; illness and injury of employees; rights created by continuous employment; provisions for fixed-term, part-time and agency workers; discrimination and harassment; termination of employment (including protection against dismissal and protected employees); resolution of disputes between an employee and employer; redundancy/layoff; employee representation and consultation; consequences of a business transfer; employer and parent company liability; employer insolvency; employers' health and safety obligations; taxation of employment income; intellectual property; restraint of trade; relocation of employees; and proposals for reform.

Read full article here.

Malaysia

Contributed by LAW Partnership

Merger Control Landscape in Malaysia: The Proposed Introduction of a Merger Control Regime via Amendments to the Competition Act 2010

By Raphael Tay, Partner; Shivani Sivanesan, Associate; Charmayne Fung, Associate; Malvinderjit Kaur Dhillon, Associate

In contrast with all other ASEAN jurisdictions, Malaysia does not currently have a holistic merger control regime. Instead, industry-specific legislation works to regulate anti-competitive transactions/introduce some form of merger control in those specific industries. For example, the Malaysian Aviation Commission Act 2015 (Act 771) specifically prohibits M&A activity resulting in a “substantial lessening of competition in any aviation service market”.

Here, we discuss the recently-proposed amendments to the Malaysian Competition Act 2010 with specific focus on the merger control framework introduced in these amendments.

Read full article here.

Nepal

Contributed by Pradhan & Associates

Insurance Act 2079 (2022 A.D.)

By Devendra P.N. Pradhan, Managing Partner; Sadikshya Acharya, Trainee Associate

The newly enacted Insurance Act 2079 (2022 A.D.) (“Insurance Act”), which is the primary law governing insurance business in Nepal, received the President’s assent on October 9, 2022 and came into effect on the 31st day of authentication, i.e., November 8, 2022. Insurance Act has repealed prior Insurance Act 2049 (1992 A.D.) (“Prior Insurance Act”).

This Briefing aims to highlight major provisions of Insurance Act primarily applicable to foreign insurance companies in engaging insurance business in Nepal.

Read full article here.

New Zealand

Contributed by Quigg Partners

New Zealand Acquisition Due Diligence: “Unfair” Contract Terms Review

By David Quigg, Partner; Asha Stewart, Partner; Matt Woolley, Senior Associate

A recent New Zealand law change prohibits the inclusion or enforcement of unfair contract terms in certain standard form contracts. In order for a buyer to fully understand the risks involved in acquiring a New Zealand business that uses standard form contracts, the legal due diligence scope should include confirming whether any such contracts include terms that could be prohibited or unenforceable on the basis they are “unfair”. In this briefing, we summarise key aspects of the recent law change, and suggest matters to consider as part of acquisition legal due diligence.

Read full article here.

Pakistan

Contributed by Kabraji & Talibuddin

Islamabad High Court Rules International Carriage by Air Conventions Provide “Yardstick” for Damages in Passenger Claims under Consumer Protection Law

By Maria Ahmad, Partner; Zayna Nazir Khan, Associate

In October 2022, the Islamabad High Court (the IHC) passed a ruling that damages for loss claimed against an airline under the provincial Islamabad Consumer Protection Act 1995 (the Islamabad Consumer Protection Act) can only be quantified in accordance with the mechanism given in the applicable international air carriage conventions under the Carriage by Air Act 2012 (the Carriage by Air Act).

Read full article here.

Singapore

Contributed by GT Law LLC

Singapore Employment Law Updates

By Sze-Hui Goh, Managing Partner; Sharon Teo, Partner

Singapore has recently overhauled its work pass regime significantly. Of the changes made to the regime, it is worthy of noting two (2) key enhancements made: (i) the introduction of a new work pass called the Overseas Networks & Expertise (“ONE”) Pass and (ii) the Complementarity Assessment Framework (“COMPASS”) for Employment Pass (“EP”) applications and renewals. This article addresses both changes in the following paragraphs.

Read full article here.

Taiwan

Contributed by Formosa Transnational

Lawmakers Passed Bill to Restrain Property Speculation

Taiwan's Legislative Yuan passed an amendment for Equalization of the Land Rights Act (平均地權條例, the “Amendment”) on 10 January 2023 in order to restrain speculation in the real estate market and to bring down high housing prices. This includes prohibition of flipping real estate contracts of presale or newly constructed residential units and imposition of steep penalties on market manipulators.

Read full article here.

The MOHW Releases Two Major Benefits to Support Biomedical

The Deputy Minister of the Ministry of Health and Welfare, Mr. Chung-Liang Shih, announced on October 6, 2020, that in order to expedite the legislative process the “Act for the Development of Regenerative Medicine” will be removed from the proposal. This leaves the “ Regulation Governing Regenerative Medicine ” and the “ Regulation Governing Regenerative Medicinal Products” to be reviewed and examined in this session of 2022.

Read full article here.

The FSC Plans to Amend the Threshold for Trust Enterprises' Compulsory Concurrent Discretionary Investment Business

On August 25, 2022, Taiwan's Financial Supervisory Commission (金融監督管理委員會, "FSC") announced that it will be extending the scope for trust enterprises to manage and apply the entrusted assets. It plans to amend the Article 2 of the Regulations Governing the Conduct of Discretionary Investment Business by Securities Investment Trust Enterprises and Securities Investment Consulting Enterprises (證券投資信託事業證券投資顧問事業經營全權委託投 資 業 務 管 理 辦 法 , “ Regulations ” ) by raising the threshold for trust enterprises' compulsory concurrent discretionary investment business (強制信託業申請兼營全權委託投資業務門檻) from NT$10 million to NT$15 million.

Read full article here. 

The Taiwan Stock Exchange (TWSE) Announced New Measures to Stimulate the Taiwan Innovation Board (TIB) Investment

On August 11, the Taiwan Stock Exchange (TWSE) announced three favorable measures hoping to make the Taiwan Innovation Board (TIB) the first choice for innovative companies to list in the Asia-Pacific region, including: relaxing the qualification of legal persons, lowering the threshold of the financial proof for natural persons to NT$5 million, and rewarding securities companies for volunteering as market makers. These measures were enacted in order to expand the number of market participants and liquidity, stimulate the TIB, and enhance market competitiveness.

Read full article here.

Contributed by Lee and Li

Taiwan Amends the Equalization of Land Rights Act

To maintain real property transaction order and curb real estate speculation, the Legislative Yuan passed the draft amendments to the Equalization of Land Rights Act (the “Act”) on January 10, 2023.

Read full article here.

US

Contributed by Eversheds Sutherland

A measured approach | US Cybersecurity and Data Privacy review and update: Looking back on our 2022 articles to help navigate 2023

By Michael Bahar, Partner; Francis Nolan, IV, Partner; Sarah Paul, Partner; Ian Shelton, Partner; Brandi Taylor, Partner; Mary Jane Wilson-Bilik, Partner; Leslie Bender, Senior Attorney; Melissa Fox, Counsel; Deepa Menon, Counsel; Alexander Sand, Counsel; Chris Bloomfield, Associate; Janell Johnson, Associate; Pooja Kohli, Associate; Rachel May, Associate; Jay Patel, Associate; Melanie Ramey, Associate; Tanvi Shah, Associate; Rebekah Whittington, Associate

The past year’s trends in privacy and cybersecurity are intensifying in 2023, with heightened threats, increased regulations, and elevated expectations—as well as new opportunities. To navigate the year ahead, we lay out the articles and lessons of 2022 to help maintain an up-to-date, agile and holistic data strategy.

Read full alert here.

Digital Tax Bytes - Weekly Update

By Robert Chase II, Partner;Charles Kearns, Partner; Caroline Setliffe, Partner; Charles Capouet, Counsel; Jeremy Gove, Associate; Anna Hargett, Associate; Hasnain Valika, Associate

On February 2, 2023, the OECD/G20 Inclusive Framework released a package of technical and administrative guidance on over two dozen topics. The package includes clarity regarding the applicability of the Global Anti-Base Erosion (GloBE) Rules and transition rules for the initial years of global minimum tax. It also includes guidance on Qualified Domestic Minimum Top-Up Taxes (QDMTTs).

Read full article here.

New NIST AI Framework Offers Guidance on Risk Management and Governance for Trustworthy AI Systems

By Mary Jane Wilson-Bilik, Partner; Michael Bahar, Partner; Meghana Shah, Partner; Cynthia Shoss, Partner; Alexander Sand, Counsel; Janell Johnson, Associate

On January 26, 2023, the National Institute of Standards and Technology (NIST) released its AI Risk Management Framework (AI RMF or Framework.) The AI RMF is a resource for organizations designing, developing, deploying, or using artificial intelligence (AI) systems to help manage the risks of AI and promote trustworthy and responsible development and use of AI systems. The Framework is voluntary and flexible – meaning organizations of all sizes and across all sectors can adapt it to their specific use cases.

Read full article here.

Services Ban and EU Import Ban Come Into Effect for Seaborne Russian Petroleum Products

By Ginger Faulk, Partner; Mark Herlach, Partner; Nicholas Hillman, Associate

On February 5, 2023, the G7 announced that the “price cap” on western-backed seaborne trades of Russian-origin petroleum products to third countries would be set at $45 per barrel ($45/bbl) for Discount to Crude petroleum products and $100 per barrel ($100/bbl) for Premium to Crude petroleum products.

Read full article here.

US-India Advance Pricing Resolutions Should Reassure Cos.

By Caroline Setliffe, Partner; Miller Williams, Senior Counsel

Over the past eight years, U.S.-based multinational enterprises (MNEs) have come to the IRS’ Advance Pricing and Mutual Agreement (APMA) Program, seeking bilateral assistance in complying with U.S. and India transfer pricing rules.

Prior to an onsite meeting in December 2022 between the IRS’ APMA Program and Indian tax authority, more than 100 bilateral and renewal APA requests remained under consideration. In this article published by Law360, Eversheds Sutherland attorneys E. Miller Williams and Caroline Setliffe provide a recap of the December meeting and explain why the negotiations were key to the two governments demonstrating to U.S. MNEs that the bilateral APA program works.

Read full article here.