Legal Caveat on Joining Trade Associations I

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In our ever changing regulatory environment driving by the emergency of new technology that change our lives overnight, it is indeed critical for the government to hear the voices of the industry. It has been a long while joining trade associations in various forms to fulfil such purpose, by way of the platform provided by such trade associations to carry out research, raising common concerns, pointing out joint issues and sharing best industrial practice.

What Can “Life Time Guaranteed” Advertisement Claim Legally Guarantee?

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When you open your television, walk by a bus station or come across any other media, it is more than often to see advertisement pop up to claim that their product or service are “life time guaranteed” in certain respects. This is especially the case when the products are pretty long lasting such as renovation / decoration products or white household electronic products.

In most cases, alongside the eye catching advertisement claim slogan, there will be some explanations / disclaimer printed in a way much smaller font (probably because the advertisement claim is reviewed by the in house legal department before issuance?)

Chinese Recent Efforts to Lower Labour-Related Cost

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Chinese economics is unprecedentedly slowing down and what incurs most anxiety is the failure of previously effective policy to stimulate market demands. In response to such uncertainties from the demand end, how to improve the other end of the economic circle, namely the production end, has become one of the hottest terminology politically and academically. Simply put, if no one is buying your products, you will have to lower your costs if you want to survive the difficult instead of simply winding up your entrepreneurship.

Management of Accrued and Carried Forwarded Annual Leave

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Chinese people are reputable for ““work hard, save hard“ and barely take leaves. Therefore, even though most foreign companies offered way more generous annual leaves entitlements to the Chinese staff beyond the statutory annual entitlements, it is very common that such contractual annual leave entitlements will not be taken in whole during a calendar year.

Most foreign companies in China will have internal policy about such accrued but untaken annual leaves. The routine approach is to provide through internal policy that such untaken annual leaves cannot be carried forward and will be considered forfeited otherwise.

New Safe Harbors for Fixed Re-Sale Price Arrangement under NDRC Guidance of Automobile Anti-Monopoly?

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Since 2014, continuous anti-monopoly enforcement by the Chinese Development and Reform Committee (“NDRC”) in the scale of hundreds of million RMB has raised serious compliance concern among foreign investors, particularly those in the area of trading and distribution. Among others, the landmark enforcement against Mercedes Benz reached the unprecedented amount of RMB 350 million.

Most of such enforcement targeted the very common commercial arrangement that fix or restrict the minimum re-sell price of the distributor to a third party (“Vertical Pricing Restriction”). Vertical Pricing Restriction is explicitly prohibited under Article 14 of PRC Anti-Monopoly Law, unless the exemptions exemptions under Article 15 of PRC Anti-Monopoly Law may apply (“Article 15 Exemptions”).

A Common Misunderstanding About Choice of Governing Law Under PRC Law

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During the negotiation of a cross border transaction between a Chinese party and a People’s Republic of China (“PRC”) subsidiary of a foreign company, it is very common that the foreign company will insist in that the transaction shall be subject to foreign law such as UK law, HK law or US law. Or at least, the foreign company will inquire with their lawyers as to whether foreign law can be chosen as the governing law of the contract. Such request is understandable from a commercial perspective as the foreign law seems to show the foreign party’s commitment to the “well recognized international standard” or “the right thing to do”.

Expansion of China’s Free Trade Zones (FTZ’s)

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Following the economic success of creating an FTZ in Shanghai in 2013, China has decided to expand the Shanghai FTZ and create three more. Tianjin, Guangdong and Fujian have been announced as the three new FTZ’s, each catering to a specific area of business as result of their individual geographic location. In this article, we shall explore the specific areas covered, the area specialties and what the move to increase the amount of FTZ’s means in a wider context.

How Unfair Can It Be Considered “Obvious Unfair” Under PRC Contract Law

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  Under PRC Law (more specifically, Article 54 of PRC Contract Law), a contract may, at the application of the party within the prescribed period of time, be set aside if obvious unfairness can be found when the contract was entered into.   The foregoing statutes of “Obvious Unfairness” alone is so vague that that the PRC judges or arbitrators, as the case may be, appears to have unrestricted discretion to strike down contracts representing the mutual consent of the parties. Following such impression, such general ground is frequently relied upon to challenge the validity of a contract, especially by foreign lawyers in the context of international arbitration in which PRC laws are relevant.   In particular, when it comes to cross border merger and acquisition, it is not uncommon that purchase price would be drastically lower than certain superficial accounting threshold, such as net asset or registered capital. As such purchase price may not make sense for a third party without inside information of the transaction, we can always expect to see arguments based upon “obvious unfair” in such cases.   That said, the “obvious unfair” ground is not as vague as we imagined.   First of all, the […]

Threshold to Bankrupt Your Debtor in China

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When your debtor defaults in your payment, one of the options, probably the most well known one, is to file a petition with court to bankrupt your debtor such that the court can stop all the operation of your debtor, seize whatever is left, turn them into cash and apply the same towards the amount owing to you.

However, this may not be easy in China. Although China has promulgated a western style Bankruptcy Law back to 1 June 2007, most PRC courts had been most reluctant to accept creditors’ applications for insolvency/bankruptcy of enterprises unable to pay their debts as they fell due. That was partially due to other economical, social or even cultural reasons, but technical set back, such as absence of clarity and guidance on the proof of insolvency and the burden of proof, certainly plays a role.

跨境股权质押法律问题初探

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在早年美元任性量宽导致其利率水平(包括与美元实行联系汇率的港元利率水平)远远低于国内水平时,众多中国企业(尤其是房地产企业)的自然人老板们都想方设法从境外融资,融资的其中一个要求就是将国内公司的股权进行质押,以担保该等融资。

随着中国境内利率水平在2015年急剧下降而美元加息渐行渐近,上述境外融资加上国内公司股权质押的商业安排吸引力下降,加上经济环境恶化,上述安排的经济纠纷频发。对于中国企业来说,最关键的问题就在于发生经济纠纷之后,如何在境外债权人不配合的情况下解封股权质押。

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