• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
location iconSuite 503, 5/F, St. George's Building, 2 Ice House Street, Central, Hong Kongphone-icon +852 2868 0696 linkedintwitterfacebook
OLN IP Services
OLN Online
  • ENG
    • 简
    • 繁
    • FR
    • 日本語
Oldham, Li & Nie
OLN IP Services
close-btn
OLN IP Services
Get bespoke and commercially-driven advice to your Intellectual Property
Learn More
OLN IP Services
OLN Online
close-btn
OLN Online
Powered by Oldham, Li & Nie, the law firm of choice for Hong Kong’s vibrant startup and SME community, OLN Online is a forward-looking and seamless addition to traditional legal services – a true disruptor.
Learn More
OLN IP Services
  • About
        • Awards & Rankings
        • Corporate Social Responsibility
  • Practice Areas
        • Canadian Notarization Services
        • Commercial Fraud & Asset Tracing
        • Elder Law Practice Group
        • Financial Service & Regulatory
        • Insolvency & Restructuring Law
        • Japanese Practice
        • Private Client – Estate Planning & Probate
        • Tax Advisory
        • China Practice
        • Corporate & Commercial Law
        • Employment & Business Immigration Law
        • French Practice
        • Insurance Law
        • Notarial Services
        • Regulatory Compliance, Investigations and Enforcement
        • Chinese Notary Services (CAAO)
        • Dispute Resolution
        • Family Law
        • Fund Practice
        • Intellectual Property Law
        • Personal Injury Law
        • Startups & Venture Capital
        • Canadian Notarization Services
        • China Practice
        • Chinese Notary Services (CAAO)
        • Commercial Fraud and Asset Tracing
        • Corporate and Commercial Law
        • Dispute Resolution
        • Elder Law Practice Group
        • Employment and Business Immigration Law
        • Family Law
        • Financial Service and Regulatory
        • French Practice
        • Fund Practice
        • Insolvency & Restructuring Law
        • Insurance Law
        • Intellectual Property Law
        • Japanese Practice
        • Notarial Services
        • Personal Injury Law
        • Private Client – Estate Planning and Probate
        • Regulatory Compliance, Investigations and Enforcement
        • Startups & Venture Capital
        • Tax Advisory
  • People
  • Insights
  • Offices

Suite 503, St. George's Building,
2 Ice House Street, Central, Hong Kong

Tel. +852 2868 0696 | Send Email
linkedin twitter facebook
OLN Blue

OLN

  • About
    • Awards and Rankings
    • Corporate Social Responsibility
  • Awards and Rankings
  • Block Content Examples
  • Careers
  • Client Information & Registration
  • Contact Us
  • Cookie Policy (EU)
  • Globalaw
  • Offices
  • Oldham, Li & Nie
  • OLN and the Community
  • OLN Podcasts
  • People
  • Practice Areas
  • Privacy Policy
  • Review
  • Reviews
  • Standard Terms of Engagement
  • Test Blog
  • The Firm
  • What Others Say
  • About
        • Awards & Rankings
        • Corporate Social Responsibility
  • Practice Areas
        • Canadian Notarization Services
        • Commercial Fraud & Asset Tracing
        • Elder Law Practice Group
        • Financial Service & Regulatory
        • Insolvency & Restructuring Law
        • Japanese Practice
        • Private Client – Estate Planning & Probate
        • Tax Advisory
        • China Practice
        • Corporate & Commercial Law
        • Employment & Business Immigration Law
        • French Practice
        • Insurance Law
        • Notarial Services
        • Regulatory Compliance, Investigations and Enforcement
        • Chinese Notary Services (CAAO)
        • Dispute Resolution
        • Family Law
        • Fund Practice
        • Intellectual Property Law
        • Personal Injury Law
        • Startups & Venture Capital
        • Canadian Notarization Services
        • China Practice
        • Chinese Notary Services (CAAO)
        • Commercial Fraud and Asset Tracing
        • Corporate and Commercial Law
        • Dispute Resolution
        • Elder Law Practice Group
        • Employment and Business Immigration Law
        • Family Law
        • Financial Service and Regulatory
        • French Practice
        • Fund Practice
        • Insolvency & Restructuring Law
        • Insurance Law
        • Intellectual Property Law
        • Japanese Practice
        • Notarial Services
        • Personal Injury Law
        • Private Client – Estate Planning and Probate
        • Regulatory Compliance, Investigations and Enforcement
        • Startups & Venture Capital
        • Tax Advisory
  • People
  • Insights
  • Offices

Speech at Launch Reception of the Book “International Commercial Arbitration” on 29 October 2021

OLN Marketing

Speech at Launch Reception of the Book “International Commercial Arbitration” on 29 October 2021

November 5, 2021 by OLN Marketing

Good Evening, Ladies and Gentlemen,

It is our great honour to have such a distinguished group of guests from the arbitration community to join us at this book launch reception this evening. It is not easy to plan and organise any activity during Covid and this reception has been postponed since the start of the year when the book was actually published. We are glad to have this event at the end of the HK Arbitration Week 2021. Thank you all for joining us tonight.

I would also like to thank OLN for generously sponsoring this event. Thank you Justin Chow for booking this venue for us. Thank you Philip Kwok for writing the review of the Hong Kong Chapter.

Last but not least, I would like to thank my co-author Amy Lo who gave me the opportunity to update the second edition of the Hong Kong Chapter. Amy is my university senior and we have remained friends since. She has moved to the US so she cannot be with us tonight. 

As she moved to the US, she asked me “Dantes, would you like to update the Hong Kong Chapter of International Commercial Arbitration? There is not much royalty by the way.”  “Sure!” I replied – I had no idea about the workload of this voluntary assignment. Then I spent the next 6 months on reviewing the case authorities in the past 4 years or so and updating the existing state of the law on arbitration.

Arbitration is perhaps the only area of the law that the Court takes a laissez-faire approach.  Because of the well-known guiding policies of pro-arbitration and non-intervention by the Court, there are a lot of interesting developments in arbitration. Whilst these guiding policies provide almost a knee-jerk kind of default explanation to nearly every arbitration case, I have wondered for many years how far these guiding policies could go.

For example, under the Lasmos line of authorities, it is possible as a matter of Hong Kong law to petition to wind up a company on a debt governed by an arbitration clause. There is no automatic stay of the petition. Commentators justified this by reference to pro-arbitration support by the Court. As we all know, winding-up petition is a powerful tool to squeeze payment from debtors. The argument is that no one would use arbitration if winding-up petitions are not available for arbitration-governed contracts.

Fair enough – but one wonders why a Court should wind up a company on a debt governed by arbitration, when the arbitral tribunal could determine that the debt actually does not exist.  So far I have not heard any logical response to that. This is the gist of the article I published in May 2020, and you will receive a copy in a folder when you leave. There are more developments on this issue, and my team member Flora Ng is in the process of drafting an update article on this.

Halliburton is another hot case. In Halliburton, the UK Supreme Court held that an arbitrator has a duty to disclose multiple overlapping appointments with one common party, which may give rise to an appearance of bias. Although the arbitrator in that case failed that duty, the Supreme Court upheld his appointment. Again, commentators explained this by reference to non-intervention and pro-arbitration by the Court.

However, is it not strange that the innocent party was left without any remedy when an arbitrator breached his duty? I thought the legal maxim that “there is no wrong without a remedy” should always prevail. With all due respect, we have identified where Lord Hodge fell into error in his analysis in Halliburton. My team member Davis Hui is drafting an article on this issue.

In the recent case of C v. D, the Hong Kong Court held that the multi-tiered arbitration clause goes to admissibility rather than jurisdiction of the arbitral tribunal, unless otherwise clearly stated. Of course, it might be easily justified by the so-called “pro-arbitration” approach. 

But as we all know, arbitration clause is often added last minute at the end of the deal process, often without much negotiation. The parties have already taken pains to set out the details of the dispute resolution mechanism, i.e. by negotiation/mediation first before arbitration. In these circumstances, I would have thought that the parties’ clear intention is not to go to arbitration unless and until the negotiation/mediation requirement is complied with. It seems impracticably onerous for the Court to require the parties to state explicitly that multi-tiered arbitration clause should go to jurisdiction.

You will still hear from us on these interesting developments.

Ladies and gentlemen, this event tonight reminds me of a similar inaugural event I had some 13 years ago, when a group of relatively younger, more enthusiastic and energetic legal professionals formed a group called Denning’s Bench to try to publish periodic articles. Lord Denning of course needs no introduction. To me, Lord Denning is most admirable for his ability to think out of the box, and out of the existing confines of the Stare Decisis, in pursuit of pure logical reasoning. 

Anyway, the 6 Dennings’ Benchers perhaps naïvely believed that we could each publish 2 articles a year so the whole group would have one article per month. Needless to say, we were soon crushed by the reality of private practice. However, I still think that with more peers, this is a doable project. So if you are interested in contributing to the development of the law by writing articles on any topic really, and if you are looking for collaboration, please speak with us!

On that note, thank you once again for coming. I hope you enjoyed this event and we hope to see you again at the Arbitration Week next year.

OLN Launch Reception of the Book International Commercial Arbitration, Dantes Leung with guests

Filed Under: Dispute Resolution, News

Brand Valuation in Hong Kong – Top Tips from the Front Line

November 4, 2021 by OLN Marketing

Benjamin Choi, Intellectual Property Consultant at OLN, explains brand valuation in Hong Kong
  • As a leading commercial hub, Hong Kong is often viewed by foreign brand owners as an ideal gateway into Asia.
  • However, local conditions – from the worth placed on family-run business to the impact of sky-high rents – are often under-estimated or misunderstood.
  • Analysis of successful home-grown brands and some not-so-successful foreign entrants provides invaluable takeaways for those considering taking the plunge.

Brands are a relatively solid form of IP asset compared to a product’s design or artwork. They usually command a higher commercial value to reflect their potential to generate significant future income. However, brands can only be traded when there is a reasonably strong commercial incentive, a guaranteed return and, most important of all, a shared intention between the seller and the buyer.

The owner of a quality brand may not be interested in a buyer’s offer to acquire it for numerous valid reasons (eg, to preserve a family business). Yet there are many ways in which the owner can significantly enhance the status of its brand in terms of operation scale and geographical reach, to ensure that it reaches its full potential.

IP trading utilises brand power to create business opportunities in the market economy. This is where an IP asset is exploited to the fullest extent in order to realise its maximum value and return through acquisition, licensing and/or franchising with the facilitation of IP intermediary services including IP legal advisory, valuation, financing and insurance. IP trading provides a designated channel for rights holders to freely offer their intellectual property to potential buyers, licensees or franchisees.  

Hong Kong is well positioned as a hub for IP origination, generation and trading in Asia. As a leading international commercial centre and tourist hotspot, the region welcomes and sustains leading brands from all over the world by providing an economy capable of supporting, absorbing and trading high-quality, novel and sought-after goods and services.

In November 2013 the Working Group on IP Trading was established to design government-level strategies and policies to support and promote this vision. The group’s aim is to:

  • enhance the Hong Kong IP protection regime;
  • support IP creation and exploitation;
  • foster and enhance IP intermediary services; and
  • promote, educate and facilitate external collaboration efforts.
Finding the right match

IP valuation is a key component in IP trading. Each and every IP asset or brand has its own identity and exclusive features, which account for its value. Valuing a brand is more complex than valuing a piece of art. While brands are just as unique, only brand valuation requires the projection of future income. Art valuations also stand a better chance of finding a reference value through some comparable (eg, records of sales, auctions or art by the same artist). In reality, the number of truly marketable brands is much smaller.

The question is who has the experience and expertise to carry out complex IP valuations? IP and brand valuation services in Hong Kong are unsystematically offered by business consultants, accountants, auditors and IP service providers. Business valuation and appraisal services are not regulated and few existing service providers in the space appear to have professional indemnity cover. Parties to an IP transaction may well be exposed to the risk of inaccurate or unfair pricing formulated by these service providers. Realistically, a good team of valuation experts should include an accountant, a business consultant and an IP legal professional, who can collaborate to assess the brand value from different perspectives.  

Income versus market

The classic approaches to IP valuation are:

  • the income method – based on future projected income the IP asset can potentially generate; and
  • the market method – based on observations of actual third-party transactions of comparable intellectual property to determine a price. 

IP value can also be influenced by unforeseen circumstances. Parties get stuck in an IP transaction if they cannot agree on the method of valuation and the variants to be considered. A valuation based on a forecast of future profits that the intellectual property can potentially generate seems fair as the value is determined at the time of the transaction. Once the intellectual property is acquired, the buyer takes all credit or deficits from the actual profit or loss generated by it. 

A valuation based on completed transactions of comparable intellectual property depends heavily on the applicable data and precedents. Every piece of intellectual property or brand is unique, with its own specific history and background. Exclusive features of the asset in question that do not resemble the reference intellectual property should be analysed thoroughly in the valuation process to ensure that the pricing takes them into account.    

Top Hong Kong brands and the stories behind them

Egg tarts or cakes? 
A brand normally takes years, sometimes decades, to build up its goodwill and reputation so as to become attractive and marketable. Marketable brands with the potential to be acquired are not casually advertised or promoted, for obvious reasons.   

Tai Cheong Bakery (‘泰昌餅家’) is a local bakery shop established in 1954 by owner Au Yeung. For 50 years Tai Cheong built up a reputation from its outlet in Central, selling traditional handmade egg tarts and pineapple buns. 

Tai Cheong earned particular notoriety in 1997 when it was widely reported that the last governor of Hong Kong, Christopher Patten, visited the bakery to buy the “best egg tarts in town” before returning to the United Kingdom. 

The bakery suspended business from June to September 2005 when the landlord demanded a 100% rent increase. In November 2005 it reopened with a new branch in Mongkok, where it has operated ever since.

In November 2007 Hong Kong food and beverage chain Tao Heung Group invested over HK$1 million to acquire 20% of shares in Tai Cheong. By March 2009 it held 80% of shares in the bakery and by 2013 it had fully taken it over. Today Tai Cheong has 10 stores throughout Hong Kong, as well as five overseas stores located in Taiwan and Singapore. To a significant extent, it is the brand value in the name Tai Cheong that attracted Tao Heung’s investment of capital and resources. These were then used to upscale Tai Cheong’s production levels, points of sale and marketing initiatives in order to further raise its profile as a well-known Hong Kong brand.

Working in the same sector, Maria’s Bakery (‘超羣餅店’) was established by Maria Lee Tseng Chiu-Kwan in 1966. Unlike Tai Cheong, Maria’s Bakery expanded very quickly, opening more than 60 stores in Hong Kong and branches in China, Taiwan, the United States and Canada within the first five years. The company reached an annual turnover of over HK$100 million in the 1970s. Yet in 1997 Maria’s Bakery went into liquidation due to a capital and management crisis. Shortly afterwards, Hop Hing Group acquired Maria’s Bakery and resumed business in July 1998. It is still going strong today.

Maria’s Bakery has been a well-known brand in Hong Kong for decades and a leading presence in the baked goods market. The liquidation of the bakery chain in 1997 inevitably reduced its brand value significantly. However, Hop Hing showed admirable foresight in acquiring the business and has preserved Maria’s Bakery as a Hong Kong local brand for the past 20 years.

Father and son 
Family is a core value in Chinese culture. It is customary and admirable for a family business to be passed on from generation to generation.

Lee Kum Kee (‘李錦記’) is a legendary Hong Kong brand specialising in oyster and other cooking sauces, with sales in more than 100 countries worldwide. Founder Lee Kum Sheung established the company in Guangdong in 1888, before relocating the office to Macau in 1902 and then moving the headquarters again to Hong Kong in 1932. Lee Kum Kee has always been run as a family business and in 2019 it was reported that the business and assets were worth HK$15 billion.

Yung Kee (‘鏞記’) is a Chinese cuisine restaurant in Hong Kong famous for its roast goose. Established in 1942 by Kam Shui-Fai, the business was inherited by Kam’s daughter and two sons (each with equal shareholdings) after his death in 2004. A dispute between the two sons in 2010 turned into a court action that went all the way to the Court of Final Appeal, with a winding-up ruling issued in 2015. The case was finally settled when the younger son bought out the shares held by the elder son’s estate for an estimated HK$1.2 billion shortly before the winding-up due date of execution. Yung Kee is now wholly owned and operated by Kam Kwan Lai, the younger son of the founder.  

It sounds incredible that a Chinese restaurant operating in a single prime location could be worth an estimated HK$2.4 billion (ie, double the HK$1.2 billion that was paid for half the business), even taking into account the real estate value of the restaurant property and business assets such as kitchenware and luxury ingredients. However, this is partly attributable to the brand name Yung Kee, which carries enormous value. Will the Kam family continue to maintain Yung Kee exclusively as a family business to be inherited by the next generation? It looks as if this could be the plan.   

My place, my rules

Many established Western brands choose Hong Kong as a market to launch their products in Asia. This can be for a whole host of reasons; however, Hong Kong has one significant drawback, which can have a big impact on how products are priced – high rents.

Krispy Kreme is a leading US doughnut brand, which was established in 1937 and has since expanded to numerous big cities around the world. Nevertheless, its experiences in Hong Kong show that not even a globally renowned brand is protection against steep rents. Krispy Kreme’s first Hong Kong store opened in August 2006 at a prime shopping, commercial and tourism location, Causeway Bay. The doughnuts quickly proved popular and six other outlets were soon opened in premium, and thus expensive, locations. Having been by the 2008 global financial crisis, Kristy Kreme declared the voluntary winding up of its Hong Kong business operation in October 2008, with high rental expenses identified as a significant contributing factor.    

However, these rents can sometimes help to boost a brand’s worth in the eyes of consumers. Five Guys is a leading burger brand, also from the United States. Established in 1986, it did not arrive in Hong Kong until 2018. There are now five Five Guys stores evenly spread out in five of the region’s core business zones – namely, Central, Kwun Tong, North Point, Tsim Sha Tsui and Wanchai. The next Five Guys store is due to be located in Causeway Bay right across Times Square, with a reported monthly rent of HK$500,000. 

A basic Five Guys burger sells for HK$75, meaning that this new store would have to sell a minimum of 6,666 burgers every month just to pay the rent, with more burgers needed to cover other costs and operational expenses. However, such is the strength of its brand that customers line up around the block for Five Guys products. The name is a guarantee of the quality of the burgers and the experience offered. For this reason, the prime location may be a worthwhile investment to help cement its reputation as a stellar brand.

Five Guys is a good model for other established or up-and-coming brands that have an eye on Hong Kong as a route into the China and Asia markets.     

Impact of Covid-19

Covid-19 has severely affected brands in various ways over the past 18 months. This should be factored in to any brand valuation, as it means that future income can no longer be accurately projected over the longer term, given that travelling and social distancing restrictions look set to remain in some form for the next six to 12 months. The pandemic is thus further complicating an already complex formula when it comes to assessing brand value.

However, businesses and brands are adapting to changes in consumer spending behaviours and preferences under covid-19. According to a survey conducted by KPMG and gini in November 2020, Hong Kong consumers that are experiencing economic constraints have significantly reduced their spending on luxury and non-essential products, redirecting this to day-to-day essentials such as groceries.

In addition, consumers appreciate a good digital experience and tend to spend on providers capable of offering this. There has also been a marked rise in the use of online channels for retail purchases, with customers continuing to spend on brands and experiences that they trust. Investors are becoming more adept at spotting the brands capable of sustaining and progressing in these unprecedented times and appear keen to seize the opportunity to invest, with a view to growing such brands with an infusion of capital to help them upscale operations and market share.  

The future is bright with the right investment

No two brands will take the same route or end up in the same place. Many local brands have been doing exceptionally well for decades in Hong Kong. Operations may be small – often because of limited or a conservative allocation of resources – but they have great potential. The right investors and a smart strategy can escalate a brand to a new level in the market, helping it to appeal to significantly more consumers.  

Filed Under: Intellectual Property

Webinar: Bilingual Practice Risks

October 22, 2021 by OLN Marketing

Our Litigation Partner Dantes Leung and Associate Flora Ng conducted a zoom webinar for other practitioners on the tropic “Unveiling and Managing Risks in Multilingual Contracts”.

The webinar was organized by the In-House Lawyers Committee of the Hong Kong Lawyer under its “In-House Lawyers Training Programme (in collaboration with law firms) 2021” and gathered over 70 members.

Dantes and Flora explained the risks in negotiating, drafting and interpreting multilingual contracts. They also advised on the best practices to prevent the misunderstanding between contractual parties and talked the audience through the techniques and methodologies of successful legal translation.

About Hong Kong Lawyer

Hong Kong Lawyer is the official journal of the Law Society of Hong Kong. It provides news and insights on a variety of legal topics and goes out to every lawyer registered with the Law Society of Hong Kong and members of the Hong Kong Bar Association, corporate and government counsel.

View Article (October 2021 Issue)

Filed Under: Dispute Resolution, News

Book Review – Hong Kong Chapter of the International Commercial Arbitration (2nd Edition)

October 2, 2021 by OLN Marketing

This Book Review was published in ‘The Hong Kong Lawyer – September 2021‘

The Hong Kong Chapter of the International Commercial Arbitration (2nd Edition) was written by Dantes Leung and Amy Lo. This book review is by Philip Kwok, Counsel, LC Lawyers in association with Chen & Co Law Firm.

The book International Commercial Arbitration is a seminal practitioners’ guide to international arbitration. Its newly published 2nd edition consistently provides comprehensive insights into arbitration practice in various popular seats such as England and Wales, U.S., France, Switzerland, Sweden and Hong Kong.

The Hong Kong chapter will be of particular interest to practitioners in Hong Kong. The chapter starts by presenting readers with an overview of Hong Kong legal framework from the beginning of colonial rule through to the present. It then dives deep into the issues that may be encountered at different stages of arbitration, from the drafting of arbitration agreement to the conduct of the arbitration proceedings, to the enforcement of arbitral awards, providing clear and concise guidance through the arbitration process.

Within the HK chapter, I found the section on “the control and enforcement of arbitral awards” most useful. As we all know, an arbitral award needs to be recognised and enforced in order to carry the force of law. Under section 73 of the HK Arbitration Ordinance (“AO”), an award will be final and not subject to challenge generally. The only avenue to challenge an award before the court is set out in article 34 of UNCITRAL Model Law (“ML”) as incorporated by section 81 of the AO without modification. However, if the opt-in provisions of schedule 2 of the AO apply, the award could be challenged on the grounds of serious irregularity or appealed on the basis of a question of law. The Chapter does not just cover the practice, but also clearly provides a detailed procedure framework for each relevant application (e.g. time limits, documents to submit, the court’s consideration of the applications, etc). The remedies given by the court if leave to challenge the award is granted are also explained.

Furthermore, the Chapter introduces the enforcement regime under the AO and sets out the types of awards that are enforceable in Hong Kong, including awards made in Hong Kong, non-convention awards made overseas, convention awards, Mainland awards, Macao awards. It helpfully summarises the enforcement of arbitral awards in a comprehensible way that all the relevant ideas are easy to follow. As such, this section provides a good insight for practitioners who want to have a deeper understanding on how to challenge arbitral awards by taking into account the specific circumstances in each case.

Despite recent political development, the Chapter adds that Hong Kong had not been losing its appeal as an international arbitration centre for commercial disputes. “It should be noted that international arbitration is a dispute resolution mechanism that is not subject to political interference,” the Chapter states, “the fundamentals and infrastructure of the arbitration system in Hong Kong remain intact and world-class.”

Indeed, in 2020, the Hong Kong International Arbitration Centre (“HKIAC”) received 318 new cases, which was the greatest number of cases they have had over the past decade. This demonstrates a boost in confidence for the use of arbitration as the method of choice for dispute resolution. Coupled with an increase in the demand for Hong Kong’s arbitration service, we expect arbitrations filed with the HKIAC will continue to be international in nature.
This book is reader-friendly. It explains the arbitration concepts and procedure in a simple and straightforward manner. In addition, a descriptive but not critical style is adopted to present readers with all the related concepts as objectively as possible.

All in all, the style of writing is of a high standard. This book serves as a quick reference tool for international arbitration practitioners. With the increasing adoption of international arbitration service in Hong Kong, this book also provides a very welcome addition to the bookshelves for law students and non-practitioners who have an interest to know more about arbitration in different countries.

September 2021

Filed Under: OLN, News

OLN is Highly Recommended in Asialaw Profiles 2022

October 2, 2021 by OLN Marketing

We are delighted to announce Oldham, Li & Nie has been again ‘Highly recommended’ by Asialaw.

Asialaw Profiles 2022 recognises the firm’s expertise in the following practice areas:

  • Dispute Resolution
  • Corporate and M&A
  • Intellectual Property
  • Labour & Employment
  • Private Client
  • Restructuring and Insolvency
  • Insurance
OLN is Highly Recommended in Asialaw Profiles 2022
About Asialaw

Published online in September each year, Asialaw Profiles provide law firm recommendations and editorial analysis of 28 sectors and practice areas in 23 jurisdictions in the region – from Bangladesh to Vietnam. It is the only guide that focuses exclusively on regional and domestic law firms in the region. Asialaw Profiles 2022 is the 26th annual edition of a publication.

September 2021

Filed Under: OLN, News

A Bit of Certainty During Uncertain Times

September 23, 2021 by OLN Marketing

The pandemic has turned our lives upside down. Not only because of the health consequences of the Coronavirus, but also because if you and your family are used to traveling, this last year and a half has been challenging. 

Whether you are a Hongkonger owning a holiday home in Europe, or a European living and working in Hong Kong, this crisis has shown us that international travel as we know might become more complicated. 

These uncertain times are the opportunity to reflect about our future, particularly when it comes to families owning assets in several countries, parents whose children live abroad, or expats who are considering returning to their home countries. 

Estate planning is a real issue that should not be left for last minute. It is indeed possible to plan ahead to avoid difficulties arising upon death. There are several tools which will give you and your family a bit of certainty about the future.  

OLN can help you secure your assets and plan your inheritance in advance.

The complexity of international estate planning

European inheritance law might become complex when it comes to international families, especially regarding the following aspects: 

  • Forced heirship: most European countries apply a system of reserved heirs, a form of inheritance which mandates how the deceased’s estate is to be disposed of and which tends to guarantee an inheritance for the family of the deceased. Indeed, in Europe you are not allowed to disinherit your children. 
  • Inheritance tax: some European countries are entitled to tax the assets your heirs will receive after your demise. This could particularly apply to immovable assets located in France. 
  • Specific documents: European countries may ask for documents from a national lawyer or Notary for amending the Property Deed of your real estate after the demise of the owner.

The impact of the matrimonial property regime in inheritance law

Many foreign couples got married abroad or even in Hong Kong without drafting a prenuptial or postnuptial agreement.

Depending on the countries involved in your particular situation – nationality of the spouses and heirs, location of the assets – the applicable law to the matrimonial property regime could affect inheritance.

Foreigners living in Europe and Europeans living in Europe and abroad are able to choose the applicable law to their matrimonial property regime. Indeed, European Regulation No. 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes entered in force on 29th January 2019. Article 22 of this regulation allows couples to designate either the national law of one of the spouses, either the law of their habitual residence.

Once the applicable law designated, the spouses will be able to choose their matrimonial property regime. For example, a couple might choose separation of assets. However, under some European laws the spouses might be able to choose another property regime, more protective to the other spouse upon death.

This choice could have an impact on inheritance, since the surviving spouse might be entitled to a significant part of the assets acquired during marriage.

To determine your matrimonial property regime is therefore essential for estate planning.

Choosing the best applicable law to your inheritance

In order to limit the difficulties raised above, the European Union adopted Regulation No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.

From a European point of view, the applicable law to the succession will be the law of the last domicile of the deceased. However, the regulation allows citizens to choose their national law as the applicable law. A competent lawyer in both jurisdictions will be able to advise you about the best applicable law for your inheritance.

The regulation also creates a “European Certificate of Succession”, an essential document to be drafted by a local authority in order to transfer the ownership of the assets located in Europe to the heirs.

The local authority will need to ensure that the will respects European procedures.

Tools to protect your assets and plan your inheritance

Several tools are available for international estate planning besides drafting a will in Europe and Hong Kong. You could consider donating part of your assets to your children or incorporating a company who will own your real estate for your family.

  • European and Hong Kong wills: an analysis of your situation, the location of your assets and the tax residence of your family members is necessary to assess the suitability of a Hong Kong or European will. In some cases, a European will would be more appropriate. Depending on the case, a Hong Kong will would be needed to complete the European will. In any event, if you own any assets in Europe, it is advisable to take into consideration the tax implications for your heirs before drafting the will.
  • Donation to children during lifetime: in some cases, giving part of our assets to your children during your lifetime would decrease your estate upon death and therefore the tax will be lower. For example, in France parents are allowed to give up to 100.000 € per parent and per child every fifteen years, exempt of tax. 
  • Donation of the real ownership of immovable assets to the children: in some European countries, it is possible to separate the real ownership from the usufruct. One way of decrease your estate before death and to keep the use of the house could be donating the real ownership to your children while the parents keep the usufruct until their death.
  • Incorporation of a Property Company:  some European countries like France provide many ways to limit the inheritance problems for real estate. One of the most popular ones would be creating a “Société Civile Immobilière”, a Property Company owning the real estate instead. Upon demise, the heirs will inherit the shares of the Company and not the real estate itself.
  • Trusts: most Continental European laws do not permit to set up trusts. It is however possible to set up a trust in Hong Kong but legal advice is mandatory to ensure that there will be no consequences for the inheritance of European assets.

An assessment of your particular situation is needed in order to determine the best options international law can offer.

Brexit

I sadly need to remind you that the United Kingdom is not a part of the European Union since January 2021. But for every problem, a solution: our specialized lawyers at OLN can advise you on estate planning in the United Kingdom, Continental Europe and Hong Kong!

September 2021

Filed Under: Financial Service and Regulatory, Private Client – Estate Planning & Probate

  • « Go to Previous Page
  • Page 1
  • Interim pages omitted …
  • Page 15
  • Page 16
  • Page 17
  • Page 18
  • Page 19
  • Interim pages omitted …
  • Page 52
  • Go to Next Page »

Primary Sidebar

This website uses cookies to optimise your experience and to collect information to customise content. By closing this banner, clicking a link or continuing to browse otherwise, you agree to the use of cookies. Please read the cookies section of our Privacy Policy to learn more. Learn more

Footer

OLN logo

Suite 503, 5/F, St. George's Building 2 Ice House Street, Central, Hong Kong

Tel. +852 2868 0696 | Email us
About People Offices OLN IP Services Privacy Policy
Practice Areas Insights Careers OLN Online
About Practice Areas People Insights Offices
Careers OLN IP Services OLN Online Privacy Policy Home
linkedin twitter facebook
OLN logo

© 2025 Oldham, Li & Nie. All Rights Reserved.

Manage Consent
To provide the best experiences, we use technologies like cookies to store and/or access device information. Consenting to these technologies will allow us to process data such as browsing behavior or unique IDs on this site. Not consenting or withdrawing consent, may adversely affect certain features and functions.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage {vendor_count} vendors Read more about these purposes
View preferences
{title} {title} {title}
OLN IP Services

Get bespoke and commercially-driven advice to your Intellectual Property
Learn More
OLN IP Services
OLN Online

Powered by Oldham, Li & Nie, the law firm of choice for Hong Kong’s vibrant startup and SME community, OLN Online is a forward-looking and seamless addition to traditional legal services – a true disruptor.
Learn More
OLN IP Services
Contact Us

Please share the details of your message here.
We will be in touch shortly.

    x