Category: Investment in Emerging Economies

A Do & Don’t List for Co-Employment Concern

Driven by the prevailing strategy of so-called “light asset”, multinational companies are pretty busy with outsourcing everything not considered as their core competitive edges. Among others, outsourcing of human resources gave rise to probably the most significant legal issues, commonly known as the “co-employment” issue.

Such terminology normally refers to the employee of a third party service provider (“3P Employee”) works so closely the company receiving such services (“Company”) that such 3P employees reasonably consider themselves the employees of the Company instead of the third party service provider and thus claims the same level of the benefit level of the Company.

A Case Study of Third Party FCPA Due Diligence Study

There is a normal misconception on operation level of most companies that if a third party agency pays bribery to achieve a goal of the company that you own or manage (“YOUR COMPANY”), it is the third party’s problem as they are simply trying to maintain their own business. This is probably the reason why most FCPA cases are triggered by third party.

Below is to show a hypothetical case study in which how potential FCPA issue arising from suspicious third party action should be dealt with:

A Quick Legal Guideline of Fixing or Controlling Resale Price from Anti-Trust Law Enforcement Perspective: General Position and Basic Concept

  Given the robust anti-trust enforcement and the astonished penalties by reference to the total revenue once violation is committed in China in the last couple of years, anti-trust compliance has certainly climbed to the top of the priority list of most multiple national companies in China. Unfortunately, anti-trust law may be the least intuitive legal subject matter as it in most cases appear to conflict with our natural sense of contract autonomy. In this very complex legal area, it basically cover 4 areas: (1) collusion between competitors horizontally; (2) fixing price between upstream and downstream manufacturers or distributors; (3) abusing dominance market position; and (4) M&A clearance.   M&A clearance is significant one-off legal issue and should normally draw sufficient attention. Horizontal collusion and abusing dominance at least has some room for arguments. However, fixing resale price is in general illegal per se in most jurisdictions and should be strictly managed during ordinary course of business. In that sense, we set out the general position and some basic concepts in this regard and in the following article a more detailed do-and-don’t kind of practical guide dance for the purpose of helping you to achieve full compliance with Chinese anti-trust […]

A Quick Legal Guideline of Fixing or Controlling Resale Price from Anti-Trust Law Enforcement Perspective: Specific Do and Don’t

Following the article we published 2 weeks ago in which we aim to set forth the general position and some basic concepts in the ever changing and non-intuitive subject matter of price fixing of anti-trust laws. This week we take a further step to offer a more detailed “do-and-don’t” practical guidance in a reader-friendly form. We sincerely hope that the following would help to achieve full compliance with Chinese anti-trust laws.

Watch-Out for Using KOL’s Social Media for Advertisement or Promotion

As on-line social media such as Weibo or WeChat (the Chinese counterparts of twitter and Facebook) became an indispensable part of everyone in our era, businesses simply cannot stop using these communication resources to do advertising and product/service promotions. Among others, the so-called “key opinion leaders” which are popular online regardless of whether they are actually leading any public opinions anyhow (“KOL”) is most ideal resources as such KOL draws most eyeballs and what they say in most times look or sound like personal opinions or private discussions of individuals.

Historical Issue of Fire Protection and Legal Position Analysis

“Historical Issue” is a frequently used terminology in the context of PRC operation. However, what does it mean remains to be very foreign to most foreign managers in multinational companies. In a nutshell, the rapid economic development over the 3 decades has given rise to wide spread non-compliance with various prevailing government regulations that failed to sit well with the said economic development. When such non-compliance, which as a matter of fact had its own economic rationale, became too common for the local government to enforce, it will stay there for generations and generations of administration and then became a “historical issue”.

Legal Position of Anti-Smuggling Risks in Processing Trade

To most foreign invested enterprises (“FIE”) that carry out a reasonable compliance standard, smuggling should be a rather remote concept. However, this may not be the case for those FIE that treat Chinese operation as the sourcing site and relies heavily upon the business model of processing trade (in a nutshell, processing trade refers to importation of materials free from Chinese duties and VAT (“Bonded Materials”) to manufacture finish goods and in turn export such finished goods back overseas pursuant to Chinse laws and regulations.

Legal Update on The Specific Internet Advertisement Regulation in China ————Part 1: Overview and Summary

Following the new and most restrictive Chinese Advertisement Law taking effect on 1 September, 2015, which has reshaped the lives of so many brand legal lawyers, the State Administration for Industry and Commerce (“SAIC”) released the Interim Measures for Internet Advertising Supervision and Management (“IAD Measures ”) on July 8, 2016 with a view to regulating the specific area filled with countless issues: the internet advertisement. This time, after September 1, 2016 when the IAD Measures is taken effect, the lives of so many e-commerce industries which ultimately feed on advertisement will also be changed again

Are Buyers’ Sourcing Agreements Free From Anti-Trust Concern?

The strength of anti-trust enforcement of Chinese government (Chinese Development and Reform Committee (“NDRC”) in particular) against price fixing arrangement with distributors has become unprecedented. The amount of penalties has reached hundreds of millions of RMB, not to mention the scary process of investigation such as dawn raid and the corresponding interruption to business.

Legal Caveat on Joining Trade Associations II

Following the article about the general position regarding the legal positon about joining trade associations, we appreciate that the reality that most small or medium size enterprise may not have the necessary resources to follow our tips that decisions regarding joining trade association should be referred to senior legal in-house counsel.

Therefore, we would like to supplement the following list do-and-don’t as the preliminary roadmap for reference:

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