Asia Pacific Our Employment and Benefits group Pacific Employment... · 2 Asia Pacific – our Employment and Benefits group | 2012 3 ... discrimination and personal privacy ... 8

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2012

Asia Pacific Our Employment and Benefits group

© Allen & Overy LLP 2012

Asia Pacific – our Employment and Benefits group | 20122 3

Contents

Asia Pacific – Our Employment and Benefits Group 4

Serving clients in Asia Pacific 5

Our cross-border expertise 6

Our experience 8

Value added services 12

Our team 14

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GLOBAL PRESENCE

AFRICACasablanca

AMERICASNew YorkSão PauloWashington D.C.

ASIA PACIFICBangkokBeijingHanoi Ho Chi Minh CityHong Kong Jakarta*PerthShanghaiSingaporeSydneyTokyo

EUROPEAmsterdamAntwerpAthens**BelfastBratislavaBrusselsBucharest*BudapestDüsseldorfFrankfurtHamburg

IstanbulLondonLuxembourgMadridMannheimMilanMoscowMunich ParisPragueRomeWarsaw

MIDDLE EASTAbu DhabiDohaDubaiRiyadh*

* Associated offices** Representative office



Asia Pacific – Our Employment and Benefits Group

Who we are Our Global Employment and Benefits Group comprises over 180 lawyers in 29 countries across Asia Pacific, Europe, the Middle East and the U.S., and is one of the best-resourced global practices in its field.

In Asia Pacific, we are a team of over 20 lawyers with expertise in workplace and benefits issues across the Asia Pacific region. Our team includes specialists in corporate law, litigation and dispute resolution, executive remuneration and regulatory. We also form part of a market-leading global network of expertise. Close team-working and collaboration within and across offices ensures that we deliver a seamless and integrated service to our clients throughout the Asia Pacific region and internationally.

Where we areOur Asia Pacific Employment and Benefits Group spans offices in Bangkok, Beijing, Hong Kong, Shanghai, Singapore, Sydney, and Tokyo. In countries where we do not have offices, we have strong working relationships with leading local law firms. We supplement these with our own dedicated practice groups who have specialist experience in those jurisdictions, including India, Indonesia, Cambodia, Laos, the Philippines, South Korea and Taiwan. We also routinely advise foreign companies and financial institutions looking to establish, develop or acquire businesses in Asia Pacific.

“Nothing demonstrates the overarching strength of the group more than its multijurisdictional work done through its network of global offices.”Chambers UK

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Serving clients in Asia Pacific

We advise multinational and domestic clients doing business in Asia Pacific on a full range of employment and benefits issues, both local and global, contentious and non-contentious, and advisory and M&A. We assist clients in sensitive matters relating to discrimination and personal privacy as part of our across-the-board employment solution.

Our approach is very much that of a partnership, working in collaboration with clients to develop individual and creative solutions to their workplace and benefits needs. Many of our lawyers are multilingual local nationals who are ideally equipped in terms of cultural understanding, in-country knowledge and language.

China International Law Firm of the YearChambers Asia Pacific Awards for Excellence 2011

ASIA PACIFIC OFFICES

1 BANgKOK2 BEIJINg3 HANOI4 HO CHI MINH CITY

5 HONg KONg6 JAKARTA*7 PERTH8 SHANgHAI

9 SINgAPORE SYDNEY TOKYO

* Associated office

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Our cross-border expertise

Employment terms and policiesOur international team advised a major financial institution on a global review and implementation of its employment contracts and employee handbook in 57 countries, including China, Hong Kong, Indonesia, Japan, Kazakhstan, Korea, Malaysia, Pakistan, the Philippines, Singapore, Taiwan, Thailand, Uzbekistan and Vietnam. We provide cross-jurisdictional expertise on employment contracts and policies on an international scale and from both a legal compliance and best practice perspective.

Workplace issues We help our clients solve workplace and employee relations issues. We provide commercial and strategic risk-managed advice as well as conducting tailored legal/human resources training on key and topical issues. We recently advised a global financial services company on the legality and practicalities of conducting pre-employment checks on its employees in the Asia Pacific region, covering Indonesia, Malaysia, New Zealand, Pakistan, the Philippines, Thailand and Vietnam.

Restructuring and dismissalsAdvising clients on the employment and benefits implications of cross-border restructurings is at the forefront of our global practice. We have advised a global pharma group on the consequences of a takeover and the ensuing restructuring of its business in over 20 jurisdictions. Our teams are pragmatic and hands-on and routinely communicate directly with workers, employee representatives and regulatory authorities to ensure that restructuring processes are handled commercially but as smoothly as possible.

Executive issuesA key area of our global practice is the structuring of complex and multi-jurisdictional executive contract arrangements, secondment and dual contract arrangements. We are also market leaders in corporate governance issues. The structuring of complex execution arrangements across Hong Kong and PRC, pay structures and terminations are key to our practice and we recently advised a global insurance company on the high-profile termination

of an Asia-based executive, which involved negotiating and structuring a settlement arrangement across multiple jurisdictions.

RegulatoryOur global employment practice works hand in hand with our global regulatory practice and we have market-leading expertise in the full range of regulatory issues which arise in an employment and benefits context. We have regular dealings with key regulatory bodies and advise on developments across jurisdictions. We routinely advise on the employment aspects of regulatory investigations, disciplinary proceedings and related terminations. For example, we advise a number of multinational companies on PRC regulatory requirements in relation to the hiring and remuneration of local PRC employees by their representative offices and on changes in key personnel.

LitigationOur global teams represent a range of multinational companies and financial institutions in employment and benefits litigation. We also advise on prospective litigation and

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contentious issues, which in Asia Pacific routinely involves advising on team moves, senior executive terminations with cross-border implications, and jurisdictional and conflict-of-law issues with other countries in Asia Pacific. In Hong Kong we recently advised a client on prospective litigation to enforce bonus clawbacks, garden leave provisions and restrictive covenants in Hong Kong and Singapore.

Impact of Corporate M&AHandling employee-related issues is a key component, particularly in Asia Pacific, of our M&A capability. We advise on an integrated basis, on all employment-related issues relating to such transactions. An example of the breadth of our capability includes our pivotal role in the Tyco restructuring where we handled the employee consultation and transfer issues in over 80 countries, including 20 across Asia Pacific, and benefits issues in 60 countries.

EquityWe regularly conduct global reviews of employee share plan arrangements to ensure compliance with securities laws, regulatory and tax requirements. We have recently provided advice to multinational companies on setting up stock-based compensation for PRC employees and expatriate employees, using phantom stock rights, stock appreciation rights and traditional stock option plans, the related onshore and offshore tax consequences and registration with the State Administration of Foreign Exchange.

Retirement benefits We advise on cross-border retirement benefit solutions to cut costs and simplify administration for our clients. In Hong Kong, we advise multinational companies on the registration and exemption status of retirement arrangements under the Occupational Retirement Scheme Ordinance, and on the redomiciling of retirement arrangements.

“Clients talk at length about the excellent co-ordination between offices, and pinpoint the firm’s ability to draw in local counsel in countries where it has not physical presence: ‘It handles local law input very well and can put the pieces together to form the wider picture’.”Chambers Global



Our experience

3iOn the transfer of an executive employee as a director of Greater China in respect of multiple employment contracts to be transferred in a global acquisition

A dual listed companyIn relation to its proposed employment restructuring which arose out of it’s decision to undergo a corporate restructuring. This involved a review of the company’s existing employment documentation and employee handbook to ensure that they are in compliance with national and local laws and regulations and that they have taken into consideration the employers’ rights conferred by the PRC Employment Contract Law (2008). Given that there will be substantial change in employment terms and benefits, the company will need to undergo employee consultation processes, which are anticipated to have significant legal and HR ramifications.

A global financial institution – On devising remuneration structures in compliance with the European Directives and the relevant guidelines.

– In relation to its proposal sale of its investment management business in Asia. Employment issues arising of the project is one of the key aspects of the deal and cover 8 jurisdictions.

Alfred Berg Finland OY, Goldman Sachs(As Bank of China (Hong Kong)’s financial advisors), North Pole, TI Group Plc and WPP Group Plc on the PRC regulatory aspects of their stock option plans

Alitalia, Federal-Mogul, Grand Circle Corporation, Lei Shing Hong and Vantico Ltd.On the drafting of various standard labour contracts for their China-based employees

Alitalia, Grand Circle Corporation and SunGard Data SystemOn the PRC regulatory requirements for the hiring and remuneration of local PRC employees by their representative offices and on the changing of chief representatives and representatives

A NASDAQ listed companyIn relation to its claim against its former employees who engaged in the sale of intellectual property rights protected products in China in competition with them in breach of their confidentiality and non-competing agreements with the company

An international bankAdvising an international bank on an employment dispute with a former employee. The employee was dismissed for making fraudulent expenses claims in connection with corporate roadshows. She was prosecuted but she was acquitted and brought a claim against the Bank in the Labour Tribunal. Her claim was dismissed, which was a successful outcome for the Bank

An international financial services companyIn relation to the equity incentive plan offered to international assignees who are working in China and expatriates whose employment will be localised. We work closely with tax advisors to help structure the equity benefit arrangement for compliance with PRC regulations, including foreign exchange control requirements

An international inter-dealer broker firmIn relation to a claim lodged by one of its former employees challenging the enforceability of a garden leave provision and seeking a bonus payment of not less than HKD16 million including applying for the proceedings to be transferred from the Labour Tribunal to the High Court

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An international inter-dealer broker firmAssisting an international inter-dealer broker firm in claims against at least 5 ex-employees who used to work on firms based Yen Interest Rate Options desk for breach of employment agreement, and other possible claims

Applied MaterialIn relation to termination of an employee and assist in arbitration and settlement proceedings

AstraZeneca In relation to issues arising out of its performance share plan to be offered to employees (including expatriates) working in the PRC

Bristol-Myers Squibb Pharmaceuticals LimitedOn matters relating to the transfer of employment and retirement benefits following the transfer of business in anticipation of the IPO of Mead Johnson in the United States

CalyonOn retirement plan registered under the Occupational Retirement Schemes Ordinance including withdrawal of exemption status and re-domicile of pension plans

Canadian Imperial Bank of CommerceOn the appointment of beneficiary under its Employee Share Purchase Plan

China LifeOn employment issues in Hong Kong including reviewing its standard employment agreement

Christian Dior and GuerlainOn staff handbook review and providing general employment advice

Compagnie Générale des EauxIn relation to its PRC standard form employment contract and dismissal issues

Confidential Client The joint and several liquidators of a company previously listed on the Hong Kong Stock Exchange whose stock trading has been suspended. One of the conditions imposed by the regulator is that a sales team is to be formed. The company was forced to indulge in higher risk recruitment strategies by poaching teams from competitors. Allen & Overy was involved in reviewing the employment contracts of the potential candidates who work in other financial institutions and advised on the recruitment strategies

CV Starr & Co, Inc.– On employment issues in

Hong Kong and the PRC including reviewing its employment contracts and advising on issues relating to transfer of employment and incentive plans

– In connection with its establishment of an employee co-investment and carry interest plan for investment professionals working in China



Davis, Polk & WardwellOn employment issues in Hong Kong including performance review procedures and termination of employment

DBS In relation to RBS’s transfer in phases of employees and customer accounts as a result of RBS’s wind-down of its retail and commercial businesses previously carried on in the PRC. A total of more than 800 permanent employees who worked in different cities, including Shanghai, Beijing, Shenzhen, Chongqing and Chengdu were affected. It also involved temporary staff/direct sales agents employed by third party labour supply providers

GEOn the transfer of PRC employees in the context of an asset acquisition that is part of a larger, global transaction

GroupMOn the enforceability of garden leave provisions and immigration issues

Hong Kong branch of an international bank In relation to the Hong Kong aspects of a global investigation into alleged manipulation of LIBOR rates

Hong Kong Stock Exchange LimitedTo draft pre-IPO and post-IPO share option schemes for employees during its preparation for IPO, including obtaining approval from the SFC

HSBCIn the negotiation of settlement package with an employee seconded to work in Hong Kong

Hunstman In relation to its termination of a key senior executive working in the PRC who abused his position and engaged in inappropriate workplace behaviour and sexual harassment

JPMorgan– On the implementation of equity-

linked incentive plans

– In relation to its proposed change of its severance pay policy. This project covers 15 jurisdictions in Asia Pacific. The advice is coordinated from Hong Kong, with advice being provided by Allen & Overy’s teams in China, Hong Kong, Singapore, Australia, Thailand, Indonesia and Japan and external law firms. In EMEA, our London office assisted in coordinating advice covering 16 jurisdictions

LECG, LLCOn enforcement of restrictive covenants against employees of its competitors and conducting local review of employment contract

Merck On numerous highly confidential employment matters, including separation of a key member of the senior management from the company, and employment compliance issues following the introduction of the Minimum Wage Ordinance in Hong Kong

Mitsui & CoIn relation to a complaint lodged by one of its employees for discrimination

Mitsui Plastics Trading (HK) LimitedOn employment issues arising out of business reorganization

Mitsui Sumitomo Insurance Company (Hong Kong), LimitedIn relation to employment matters arising out of group reorganization

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NomuraRepresenting as its regional counsel in relation to the employment of ex-Lehman Brothers employees arising out of Nomura’s acquisition of assets in the Asia-Pacific region

Royal Bank of Scotland– On general employment issues

and conducting local review of employment contract

– In successfully defending a labour tribunal claim by a former employee who was summarily dismissed by RBS, following an internal investigation into policy and expenses irregularities. Advice included preparation of witness evidence; communications to the Labour Tribunal and claimant; communications and press strategies and guidance to the company representatives as to the conduct of the hearing

Standard Chartered BankOn employment issues arising out of various business sales and acquisitions including conducting due diligence

Tullett On a High Court litigation in Hong Kong with seven former employees who left as a team to join a competitor. Tullett’s claim for relief includes a damages claim exceeding HKD25m (including unliquidated damages). Tullett was successful in court in obtaining discovery orders against the defendants and the non-party competitor. The application against the non-party competitor decision required the court to determine a novel issue regarding the interpretation of the rule regarding non-party discovery, which had only been implemented with the civil justice reforms in April 2009. The court held in favour of Tullett’s wider interpretation of this rule. Tullett has also managed, outside a court application, to obtain discovery of electronic documents in the form of deleted SMS messages on various mobile phones, which were recovered by forensic analysts

UBSOn employment issues arising out of the outsourcing of business to a supplier

Various multinational clientsOn the handling of complaints lodged by, or whistle blowing letters received from, their employees and acting for them in labour arbitration tribunal proceedings

Veolia Environmental Service Hong Kong LimitedOn matters relating to transfer of employment between associated companies

WPP and the WPP Group of companiesIn relation to personal data audit and termination of employment in respect of members of the senior management



We are able to enhance our relationship with clients through a number of value added services.

Technology and innovationWe have two exclusive online services to assist our clients on cross-border issues. Our “Employment Restructuring Roadmap” summarises the key practical steps to be taken in relation to employees and their representatives on restructurings in 27 countries worldwide, including the PRC, Hong Kong, Singapore, Tokyo and Thailand. In the area of global equity plans, our other online service, “Global Shareweb”, provides an overview of regulatory and other legal issues affecting equity plans in over 45 countries, covering over ten countries in the Asia Pacific region. The services enable clients to identify at a glance what restrictions apply in a particular country and what further action should be taken.

Know-how and trainingOur offices in Bangkok, Beijing, Hong Kong, Shanghai, Singapore, Sydney, and Tokyo keep clients up to speed on local case law and legislative developments via email alerts, bulletins and seminars. Publications such as “Cross-border Alternatives to Redundancy” and webinars such as “Restructuring in China: Challenges and Opportunities” also demonstrate our commitment to disseminating cross-border knowledge to clients in a practical and pragmatic manner.

Value added services

Employment Restructuring Roadmap

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Global Shareweb



Our team

Ji ZouPartner – ShanghaiTel +86 21 3896 [email protected]

Victor HoPartner – ShanghaiTel +86 21 3896 [email protected]

Alan EwinsPartner – Hong KongTel +852 2974 [email protected]

Chris MoorePartner – SingaporeTel +65 6671 [email protected]

Daniel GintingPartner – JakartaTel + 62 21 2995 [email protected]

Simon ClarkePartner – Hong KongTel +852 2974 [email protected]

Susana NgConsultant – Hong KongTel +852 2974 [email protected]

Kevin KeeSenior Associate – Hong KongTel +852 2974 7192 [email protected]

Simon MakinsonPartner – BangkokTel +66 2 263 7603 [email protected]

Dumnern SubpaisarnPartner – BangkokTel +66 2 263 [email protected]

Osamu ItoPartner – TokyoTel +81 3 6438 [email protected]

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© Allen & Overy LLP 2012 I CA1205034

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Asia Pacific Our Employment and Benefits group Pacific Employment... · 2 Asia Pacific – our Employment and Benefits group | 2012 3 ... discrimination and personal privacy ... 8