China Business Law Podcast

Ying Songhttps://www.linkedin.com/in/ying-song-66742526/Iris Yuanhttps://www.linkedin.com/in/irisjlyuan/Art Dickerhttps://www.linkedin.com/in/art-dicker/  Welcome to another enlightening episode of the China Business Law Podcast! In this episode, co-hosts Art Dicker and Iris Yuan sit down with a special guest, Song Ying, to delve into the intricate world of Anti-Monopoly Law (AML) enforcement in China. As an absolute expert in this field, Ying offers a comprehensive overview of current trends, key cases, and practical advice for companies navigating the complexities of AML. Introduction to Song YingYing is a leading authority on anti-monopoly law, currently an executive partner at AnJie, Ying brings a wealth of knowledge and experience to the podcast.AML Enforcement in China: A Comparative OverviewYing kicks off the discussion by outlining the three main types of behaviors regulated under China's AML:1. Monopoly Agreements: Horizontal and vertical agreements that restrict competition, such as price-fixing, market partitioning, and output restriction.2. Abuse of Dominance: Actions by dominant companies that exploit their market position, including excessive pricing, exclusionary practices, and refusal to deal.3. Merger Control: Pre-transaction filings required for large deals to prevent anti-competitive consolidations.Ying emphasizes the differences between China's approach and that of the EU and the US, noting China's post-regulation stance for monopoly agreements and abuse of dominance, versus its pre-regulation approach for mergers.Key Cases and Their ImpactThe Alibaba and Meituan CasesThese landmark cases highlight the hefty penalties imposed on tech giants for anti-competitive behaviors:Alibaba: Fined approximately $2 billion for exclusive dealing practices.Meituan: Similarly penalized for restrictive dealings.Pharmaceutical Industry FocusYing notes a recent shift in enforcement priorities to the pharmaceutical sector, where excessive pricing and anti-competitive practices have drawn significant attention.Hitachi Metals Case: A Landmark DecisionThe Hitachi Metals case serves as a crucial example of private enforcement actions. Chinese firms accused Hitachi of refusing to license essential patents, sparking a decade-long legal battle. The case underscored the delicate balance between IP rights and anti-monopoly regulations.Gun-Jumping ConcernsCompanies must be cautious about pre-transaction behaviors that might violate AML provisions. Ying discusses recent stricter enforcement against gun-jumping and advises businesses to thoroughly assess their compliance strategies.Practical Advice for CompaniesRisk ManagementTo mitigate AML risks, Ying advises companies to:Collect evidence demonstrating market competition.Document price trends and market entries/exits.Prepare for potential third-party complaints and investigations.Global TransactionsYing underscores the importance of considering China's merger control regime for global deals. Foreign-to-foreign transactions are not exempt, and timely filings are crucial to avoid delays and hefty penalties.# Insights from the China Business Law Podcast: Unpacking Anti-Monopoly Law Enforcement in ChinaWelcome to another enlightening episode of the China Business Law Podcast! In this episode, co-hosts Art Dicker and Iris Yuan sit down with a special guest, Song Ying, to delve into the intricate world of Anti-Monopoly Law (AML) enforcement in China. As an absolute expert in this field, Ying offers a comprehensive overview of current trends, key cases, and practical advice for companies navigating the complexities of AML.Timestamps00:00 Introduction and Guest Welcome00:29 Ying's Background and Expertise03:19 Overview of China's Anti-Monopoly Law03:52 Types of Regulated Behaviors07:15 High-Profile Cases and Penalties14:58 Pharmaceutical Sector Focus30:54 Private Enforcement and Notable Cases34:46 Conditional Approvals and Gun Jumping

我们与全球领先的法律猎头公司Hughes Castell 的大中华区资深法律猎头Vicky 刘彦访谈关于2022年中国大陆整体法律市场状况。 Vicky 谈论了律所在疫情影响下法律业务与招聘业务的整体情况和中资所、外资所的发展趋势；以及in house的市场情况和比较受欢迎的候选人的背景能力。

Co-hosts Art Dicker and Boon Kim Fam are joined by Henry Van Dyck and George Martin, partners and co-chairs of the FCPA practice at Faegre Drinker. Henry was most recently a federal prosecutor at the U.S. Department of Justice working on FCPA and other global government investigations, while George has been a partner at Faegre and co-chair of the China practice covering FCPA and other matters there. Together we cover some of the most important and relevant topics, including how to continue conducting effective cross border investigations in view of ever evolving data privacy laws in China, and understanding to what extent the DOJ may or may not be amenable to potential limitations in terms of discovery. We also discussed what the latest Monaco memo means for executives and whether a "carrot" approach might be the way forward in assessing the effectiveness of a corporate compliance program. You won't want to miss this episode!

Kim Yapchai is an award winning, experienced, global, C-suite leader with a substantial track record of dealing successfully with complex issues in multi-national, public companies, including Ford, Whirlpool, Masco Corporation, and Tenneco. Hear her give the "secret sauce" to an effective speak up program.

From a "surgeon saving lives" (external counsel) to a "family doctor who knows everything there needs to know about each member of the family" (in-house lawyer), Di Yao, Head of Legal for Google Shanghai speaks to the China Business Law Podcast about his journey from an external counsel to an in-house lawyer. In this episode, Di talks about what prompted him to move from a law firm to an in-house role, how he adds value to a technology company and also what technology companies should be thinking about in terms of their strategy taking into account the evolving regulatory requirements. Many would say when one transitions from a law firm to an in-house role, it might be for work-life balance reasons. Not Di though - he made the switch because he wanted to change the world. And he did, by joining Google in China and becoming a gatekeeper with a difference, providing pragmatic advice and risk assessment in a fast paced technology industry. Di implored audiences to think about what makes a business successful in China and weave this into the strategy, whether or not this relates to intellectual property, data security as well as privacy. He also advocates taking a step back and truly understand the intention of legislature in developing a robust business strategy. In relation to intellectual property, Di also explained that it is no longer enough to think that a product offering delivered a couple of years ago will continue to be relevant, as continuous innovation and creativity are key drivers driving the domestic market and we all have to catch up. China also recognizes the importance of intellectual property protection, so proactive protection, instead of a defensive IP litigation strategy would be a more sustainable approach. “

Happy International Women's Day! The theme for this year's International Women's Day is #Break The Bias. In this episode, guest host Kim speaks to Orianne Dutka, a former attorney who worked in private practice (FCPA investigations), government (education) and not for profit specializing in disability rights before finding her calling in creative writing, and is currently working on a novel as well as a screenplay! An accomplished violinist as well as an ultra-marathon runner, Orianne shared with CBLP her life changing experience in Beijing that enabled her to finally pursue what makes her heart sing. Orianne's entire career path has been nothing short of extraordinary and she has been breaking biases along her journey. In addition, she also shared her personal story on how a supportive community in Huang Shan, Yellow Mountain in China broke the bias by supporting wheelchair users to climb the mountain; also how by constantly self-reflecting and not putting ourselves down we can stop perpetuating some of the biases that exist. We hope you enjoy this episode!

Doreen Jaeger-Soong, Managing Director at Hughes-Castell, one of Asia's leading executive search firms, discusses the paths for lawyers and the choices they must make as they progress through their career in China. We cover both in-house and law firms, international firms and PRC firms, and the pros and cons of switching between the two. Doreen has been an authority on the legal market in China for over 30 years, and she shares those decades of wisdom using real life hypotheticals on what she would recommend for different lawyers at different stages in their careers. You won't want to miss this episode.

We are thrilled to have Craig Katerberg, GC and Head of Corporate Affairs for Budweiser APAC, to discuss (1) how he manages a team of over 120+ people including keeping top talent happy and motivated (2) how his team works across functional units of the company (3) how lawyers can effectively communicate within a company (4) how understanding the company's strategy can make lawyers more effective Craig is a self-described "introvert", hard to believe at first - but after you listen to him speak, you can see it yourself in the thoughtful observations he makes throughout this episode. Enjoy.

In this two part interview, Boon Kim Fam talks with Kent Kedl and Tung Jung (TJ) Tan, Partners at Control Risks on have to identify and handle conflicts of interests among employees, vendors, and other business partners. Be prepared to listen to some fantastic stories on fraud and how its uncovered, especially using modern forensic accounting tools combined with years of experience of knowing where to look for problems. And on how services like this in the M&A context don't usually kill deals but instead add value by creating better deals.

In this two part interview, Boon Kim Fam talks with Kent Kedl and Tung Jung (TJ) Tan, Partners at Control Risks on have to identify and handle conflicts of interests among employees, vendors, and other business partners. Be prepared to listen to some fantastic stories on fraud and how its uncovered, especially using modern forensic accounting tools combined with years of experience of knowing where to look for problems. And on how services like this in the M&A context don't usually kill deals but instead add value by creating better deals.

In this two part interview, Art Dicker and guest host Iris Yuan talk with Mavis Tan and Jessica Pyman, Partners at Control Risks based in Hong Kong. On how to prepare for litigation including fit-to-sue analysis, securing evidence, use of experts, and finding pressure points that help lead to a favorable settlement. Mavis and Jessica explain how lawyers can work side-by-side with someone like Control Risks for a more comprehensive and often practical approach to building and implementing an effective litigation strategy.

In this two part interview, Art Dicker and guest host Iris Yuan talk with Mavis Tan and Jessica Pyman, Partners at Control Risks based in Hong Kong. On how to prepare for litigation including fit-to-sue analysis, securing evidence, use of experts, and finding pressure points that help lead to a favorable settlement. Mavis and Jessica explain how lawyers can work side-by-side with someone like Control Risks for a more comprehensive and often practical approach to building and implementing an effective litigation strategy.

Boon Kim Fam talks with Shirley Zhang, Global Compliance Director at Dover Fueling Solutions.  On running a global compliance program out of Shanghai for a multinational company.  On the challenges of “work-life integration” and time management during COVID-19.  And how Shirley and her team manage to stay on top of an ever increasing number of data privacy and other compliance regulations around the world.

No matter your position on Chinese companies being put on a blacklist by the US government, you have to admire the due process these companies still get in court when a rule is challenged. Enter Xiaomi, which recently won a federal lawsuit to get off the black list banning US investors to buy and sell its stock. We talk with Tim O'Toole, Partner at Miller & Chevalier Chartered, who himself has appeared numerous times before the judge in this Xiaomi case. On whether this ruling opens up the floodgates for other Chinese companies to follow suit and challenge their bans.

A joint episode with our sister show "Ganbei" with guest with Xiaohu Ma, Partner at Hui Zhong Law Firm and former partner at Morrison & Foerster. The Variable Interest Entity. Sounds like a boring term an accountant or lawyer might use. Well it is an accounting term, but it’s anything but boring when you know how its used in the real world. It’s the key to how all Chinese internet companies have been structured to go IPO outside of China for the last 20 years. Let’s just say it’s a bit of a clunky workaround to deal with restrictions on foreign investment in the internet space in China, and despite its clunkiness, it’s still going strong today. We’ll get into the notorious Alipay – Softbank – Yahoo story and others where the VIE was center stage in that drama. Check it out with our guest Ma Xiaohu, one of the leading early technology lawyers in China who along with a few others had to come up with all these wonderful structures 20 years ago to enable that first batch of Chinese internet IPOs to happen…

本期我们与复兴集团法务部执行总经理Iris 袁佳丽、FMC亚太区知识产权事务负责人Leo 李灵川进行了Lawyers Unscripted. (Unscripted means free flowing conversation, not overly planned out in advanced.) 10' IP律师业务模块介绍 16' in-house工作的沟通方式 对比与在律所工作的思考方式 30' 时代背景下对职业转变赋予的自由空间 以及新兴行业的发展对于跨领域/跨界人才的需求 41' 客户对外部律师的真实需求 47' MBA对软实力的培养 51' 如何建立对客户的吸引力与信任感 59' 如何看待行业选择

We look back at some of the timeless jewels of wisdom some of our guests gave last year.  (1)  how lawyers can better communicate with their clients and colleagues(2) how they can become an integrated part of their company's strategic functions,(3) how young students can best prepare for a legal career,(4) how a compliance culture can permeate a company's employee base(5) how to help clients face difficult choices when faced with findings of repeated employee misconduct(6) some of the built in advantages Chinese companies may have when confronting litigation abroad

We interview Amiad Kushner, chair of the litigation practice at Seiden Law Group, a boutique law firm based in New York that specializes in complex commercial litigation, often on behalf of clients based in Europe and Asia. Amiad has a special focus on representing Chinese clients in these matters. Foreign companies sue Chinese companies and often are in disbelief at how little documentation a Chinese company produces during the discovery process. And this may simply be because Chinese companies even on major strategic matters do not have a habit of documenting their decision-making processes. And how do Chinese companies choose their external counsel like Amiad for such complex litigation matters? While one might think Chinese companies make easy targets, we instead have a fascinating in-depth discussion on the technical and cultural challenges of foreign companies bringing suit against Chinese companies around the world.

Tim Klatte - https://www.linkedin.com/in/dr-tim-klatte-2358964/Qiao Peng - https://www.linkedin.com/in/qiao-alice-peng-9110221b2/

4:12: 标准必要专利和公平合理和无歧视原则（FRAND）19:30: 标准必要专利全球许可费率的重要性19:50: 美国：TCL诉爱立信27:50: 英国：康文森无线许可诉华为和中兴36:36: 中国：中兴诉康文森无线许可（最高人民法院）43:00: 战狼精神47:00: 国际化公司的全球化应对策略。51:44: 中国：小米诉交互数字公司（武汉中级人民法院）

-Drafting precise language on product deliverables and specifications-Including dispute resolution language in the contract-Challenges of enforcing a US legal judgement in China-Challenges of collecting evidence and bringing a case directly in China-Alternative means to enforce a judgment-Benefits of arbitration instead of litigation-Specifying damages on breach, e.g. liquidated damages

Why do prices fluctuate so much and how much time do customers typically have to decide on a deal?How can a buyer find other ways to reduce total order costs (e.g. shipping and logistics) beyond price?How does payment work and how much must be paid upfront on orders?How to educate buyers who are inexperienced in buying PPE or buying anything from China?What kind of vetting and other due diligence can be done on manufacturers and trading companies that sell PPE?Cameron Johnson - https://www.linkedin.com/in/cameronjohnsonshanghai/Joel Gallo - https://www.linkedin.com/in/joel-a-gallo-167a6b17/

3:10 介绍怎么选择了IPO业务领域5:30 IPO业务领域的发展趋势 9:30 在美国、香港、大陆上市的区别，以及律师的业务重心26:16 科创板IPO的特殊性，以及律师的业务重心36:50 中概股二次上市42:00 财务问题对企业的影响46:40 IPO业务的律师流程，以及法律层面重要的问题56:50 体育行业经验分享

We are joined on our sister show Ganbei by Brian Fleming, Member at leading Washington DC law firm, Miller & Chevalier. Before joining the firm, Brian spent several years at the US Department of Justice working on national security issues related to export control, CFIUS investigations, and other compliance and enforcement efforts on international trade. Brian and Art discuss the recent Executive Orders restricting the use of WeChat and TikTok and the ongoing discussions about a potential sale of TikTok and the concurrent CFIUS investigation. -What is the legal basis behind the TikTok and WeChat Executive Orders? -How will the 45 day time frame and process work for the Commerce Department to identify transactions subject to these orders? -Are US companies' China subsidiaries covered by the order on WeChat? -Will US citizens really fall under this rule and be prevented from using WeChat from a practical perspective, even in China? Can they really enforce this rule on a person-by-person basis? Who is really being targeted by this rule? -Will the app stores like Apple and Google be forced to take down the app? -Why was the Executive Order for WeChat limited to transactions with WeChat and not transactions with Tencent, whereas the order on TikTok was much broader to include all transactions with Bytedance? -How hard will big business be lobbying to get this rule narrowly applied? -Is there a license exemption process for companies to use and what can we learn from the Huawei experience with similar licenses? -Can Tencent and Bytedance appeal these Executive Orders? -What is the status of the CFIUS investigation into Bytedance and its 2017 acquisition of Musical.ly and how does that interplay with the discussions now on banning TikTok? -What is coming next with respect to a potential sale to Microsoft or Twitter? -How have CFIUS investigations driven other companies to be sold when held by Chinese buyers? -How is the Administration using the Executive Order and the CFIUS investigation together as a coherent strategy? -Was it obvious back in 2017 that Bytedance should have made a CFIUS filing for its acquisition of Musical.ly? -How does the acquisition of a lip-synching app like Musical.ly trigger national security concerns? -Can any Chinese company that handles a large amount of personal data on US citizens put in place mitigation measures to that will actually satisfy CFIUS in the current political environment? -Is CFIUS really the right tool to be using to screen foreign companies and especially Chinese companies from doing business with large amounts of data or acquiring sensitive technology in the US?

Joey tells us about his story of moving to the US as a young kid and learning through mentors and internships to find what he loved to do in life.  Art Dicker joins the discussion as well, and Joey and Art discuss how people can make wise career decisions and avoid mistakes when deciding to enter professional fields like finance or law.

2:10 How prior government experience helped Kim in her compliance role today.3:13 What kind of compliance issues are unique to a retail business?4:26 Is the scope of a typical compliance role becoming broader now to cover things like data privacy?8:20 How do you get your message across in training the business teams?12:04 How do you do trainings for 3rd party business partners such as vendors and distributors?13:18 Any differences between working with the business teams in China and in other parts of Asia Pacific?16:38 How to get the senior management to help drive and support the compliance program?21:21 How about empowering middle management who are often the first to encounter problems?23:40 Making your presence felt in the region when the compliance team sits in the regional headquarters.26:38 Is face time still important in a compliance program with the prolific use of video conferencing now?28:20 Business is getting done despite a dramatic reduction in travel and entertainment with clients because of COVID-19.  Will this lead to a permanent reduction in compliance risk to the company?29:05 What do you see as changing trends for compliance in Asia Pacific?

Art Dicker, host of China Business Law Podcast, joined Xnode to give a live webinar about corporate venture capital.

Jeffrey has a decade of experience at JunHe LLP, and specializes in China's employment and sports law. In our first episode co-hosted with the American Chamber of Commerce Shanghai's China Voices podcast, we spoke with Jeffrey about some of the key employment law issues that have arisen for foreigners in China during the COVID-19 pandemic, including if a company can force you to be tested or quarantined and if a company can fire you if you're stuck outside the country. 

A startup has numerous "stakeholders" - investors, advisors and mentors, employees, customers, media, and the government.  We lay out what makes good stakeholders, how they work together, and how there can be potential for conflict.Our panel discussion includes:-Barbara Ex is the founder of Whitespace-Julian Mintzis is a startup investor and CEO of Panda Eagle Group-Helen Han is a startup investor and mentor at Chinaccelerator-Art Dicker is a lawyer and founder of the China Business Law Podcast.This week our show is hosted by Agnes Wang, a lawyer in China and co-creator at the show.

1:58 – How has the legal industry changed in the last few years?8:38 – How “biglaw” came about and how it is hit now in a recession.11:30 – Clients questioning what they’re paying for from firms and how firms will adapt?15:56 – How is this affecting people’s decision to go in-house?21:00 – Law firms integrating into clients and self-disciplining on fees and work scopes.24:20 – How are in-house counsel expanding their roles within companies?32:35 – Are in-house lawyers making themselves obsolete by automating process and increasing efficiencies?40:50 – How people and cultural skills are more important than ever for lawyers especially in-house.45:20 – How in-house lawyers can drive the decision-making process in a big company.51:42 – A call to making change in your legal department and its role in the company.

3:50 – Basic product quality and safety due diligence9:40 – Engaging third party inspectors in China11:50 – Engaging third party agents for sourcing product15:55 – Anti-bribery and fraud prevention20:06 – Diligence requests to and background research on your counterparties25:18 – Documenting the terms of the transaction in your contract (and getting a lawyer)30:31 – Identifying red flags and making the decision to walk away from an offer33:55 – Reputational background search on other key players in the transaction

1:45 – What kind of funding environment are we in now?4:08 – Will and how would VC funds try to back out of deals?7:05 – Why VCs may be reluctant to put in more capital to existing portfolio companies.12:15 – Alternatives to VC funding14:48 – Investor veto rights – fundraising, change in business models, redemption threats22:45 – Legal issues for startups trying to reduce costs25:50 – Predictions on what will change post-virus 

1:35 Introduction to the Cybersecurity Law5:00 Which regulators are competing for jurisdiction?7:14 How much adaptions do companies have to make to localize their policies?9:00 How do smaller companies try to comply in a cost-efficient way?15:20 Coming up with a policy doesn’t have to be rocket science.17:20 Where do company policies break down?22:55 Problems of the “ownership” of data policies within big companies25:40 Companies changing data compliance from a cost center to a value proposition28:45 Personal liability on data protection officers and legal representatives within companies 31:18 Will the coronavirus situation impact data collection and data privacy in China? 

3:00 - What is force majeure?5:28 - Are force majeure clauses always in contracts and what’s standard?8:48 - What if the contract is silent on this issue and how does governing law matter?11:26 - Force majeure often doesn’t totally excuse the party to perform the contract14.16 - Chinese trade association issuing force majeure certificates now, what value do these have?17:50 - How should foreign companies be preparing now for Chinese companies potentially using a force majeure clause in their contracts?Bonus questions:23:55 - A lot of parents in China, expats, etc., sending their kids to private schools in China which can’t open.  What can they do?31:18 - What kind of personality do you need to have to handle sticky issues like force majeure cases and compliance issues generally as a lawyer? 

1:15 – How today’s situation compares to Kenny’s time as Legal Director at Kodak China during SARS.4:00 – What other kind of types of crisis can we look to for guidance here?9:25 - How can companies use a crisis management framework to respond?15:08 – The specific role of the legal department in responding.21:58 – Might the Legal Department actually be one of the best equipped BU’s to address long-term issues involved in a crisis like this?29:15 – How crisis can create an opportunity for the Legal Department to show its value in terms of strategy for the company. 30:55 – How Legal Managers can behave like an owner of the business during times like this.

3:00 - The most common disputes with employees at companies.4:00 - How Jon handles disagreements with colleagues/internal clients5:45 - Does a legal training get in the way of good communication?11:15 - Why you should never surprise someone with your decision12:10 - Coaching managers to communicate well on terminations13:45 - How to impart legal concepts using non-legal language16:00 - Lawyers and non-verbal communication mishaps19:20 - Avoiding the temptation to want to look smart with clients21:10 - Talking about the law in terms of fairness not rules22:30 - How company policies can hinder effective decision making27:00 - Handling political correctness, bad jokes, etc within companies

1:05 - Typical termination case profiles1:55 - Dealing with termination cases already in flight4:02 - Handling situations where no clear legal grounds for termination5:50 - How badly should a company pay to make employee go away10:21 - Handling employees who just refuse to go13:15 - Advance preparation for terminating employee16:20 - Performance improvement plans18:10 - Coordinating HQ-local cross-border termination cases23:07 - How can outside counsel offer practical risk assessments27:50 - Enjoying the practice of law in China as an expatriate

1:05 - Basic principles of the law3:40 - Implementing the law on the ground10:30 - Sectors that could come off the "Negative List" in the future15:15 - Impact of new corporate governance rules19:17 - Some JVs being compelled to amend corporate governance  21:30 - Opportunities for VC funds to use more domestic structures24:45 - The law and the future of VIE structures