OLN

OLN Marketing

Napoleon must be turning in his grave.

by

by French Practice Department

No matter what side of the channel whether North of South of France, Napoleon is generally regarded as having had a rather full and accomplished life. One of his less violent accomplishments was a Napoleonic code which is 1804 passed with a view to give written and accessible law to all citizens and was a major step in replacing the previous patchwork of feudal laws.  At last, one could consult a book about the law which applied to everyone, there was a certain implicitly introduced. Now, of course, the French legal system has morphed into one of the more complex and sometimes quite unpalatable and unfathomable system of laws, decrees, ancillary legislation, rules and procedures. Nowhere is that more obvious than in employment law. Figuring out what is precisely the status of a contracting party appears to be more and more tricky and more and more difficult. Both sides of the Channel, Uber drivers who regarded themselves as independent contractors suddenly found themselves as being employees with of course all the benefits that go with such. In November 2018 a case “Take Eat Easy” court ruled that delivery drivers of Take it Easy, were found to have been in an employment relationship.

Even more recently, in January Uber drivers, no doubt attracted by the basket of benefits to be had as a French employee went to the Paris Court of Appeal. The issue of the case was to decide whether an Uber driver was an employee and therefore protected and with the benefits of French employment law of a freelancer, surprise surprise, following the Take it Easy case law the Paris Court of Appealed that the driver was an employee of Uber.

Now to be registered as an Uber driver the claimant had to obtain a professional driver’s card and register as a freelancer to the French Professional Authorities. After having performed more than 2000 trips for Uber, the drivers Uber account was permanently disabled at the request of Uber management for reasons which are not important here. According to the claimant, however, he was actually an employee of Uber and as such couldn’t be fired from the company this way.

For somebody to be considered an employee under French law, it has to be shown that 1. he was financially compensated, 2. that there was a job to perform, that 3. he was in a subordinate employment relationship, i.e., he took orders from his employer. In the past, the burden of proof to demonstrate the professional subordination was upon the claimant. This has been turned around by showing more than the lack of independence of the driver. Lack of independence is much easier to bring as the driver appears to be subordinated to the Uber app platform, and is therefore considered an employee.

In the decision, the Court pointed out that the driver is forced to register with the French Professional Authorities to become an Uber driver. Besides that, when performing a trip that the Uber platform prohibits Uber drivers to accept, non-Uber passengers, or to directly contact Uber passengers at the end of the trip or to keep any of their details. According to the Court, this, therefore, deprives the drivers of the opportunity to establish contacts and thus develop any personal clientele. In addition, the Court notes that the price is set by Uber without any consultation of the driver. Surprisingly the fact that the driver was able to choose days and hours of work does not in itself exclude a subordinate relationship. 

So is this an isolated case or will it lead to cascading?  Can it lead to tens of thousands of French Uber drivers suddenly finding they are Uber employees with all the benefits such involves?  Are we going to see Uber suddenly finding itself with 20,000 employees?

France has started discussions with online platforms, parliament and trade unions to define a new legal universe adapted to the user’s digital platforms. However, pending this new regulation, it is up to anybody wishing to enter into a commercial relationship with self-employed persons to be extra careful in the contract drafting and performance at the risk of being an employment agreement. Hire smartly, legally.  See a lawyer. Get OLN.

Napoleon as an employer’s armies had a much simpler termination provision.

OLN Ranked in ALB’s 2019 IP Rankings

by

Asian Legal Business (ALB) has released Intellectual Property Rankings 2019 and we are delighted to announce that OLN has been ranked across all categories in China and Hong Kong.

OLN is ranked at Tier 2 for Copyright and Trademarks, and Tier 3 for Patents  in Hong Kong, and continue to hold its ranking at Tier 3 for both categories in China.

Our Intellectual Property team provides practical advice and solutions with our understanding of the latest regulations and practices, the frequent updates of local government policies and branding positions in Chinese-speaking market.

Congratulations again to the OLN Intellectual Property team for getting ranked.

Vera Sung

Angel Luo

Evelyne Yeung

Marine Vanhoucke

Michael Chan 

About ALB and the IP Rankings

Thomson Reuters’s Asian Legal Business magazine provides current analysis and information on law-related issues throughout the Asia region. ALB drew information from firm submissions, interviews, editorial resources and market suggestions to identify and rank the top firms for Intellectual Property in Asia. The rankings were based on the firm’s visibility and profile in the region, the volume, complexity and size of work undertaken, key personnel hires and growth of the practice group, key clients and new client wins, and its presence across Asia and in individual jurisdictions.

Hong Kong Court recognising Japanese insolvency proceedings for the first time in history in Re Kaoru Takamatsu [2019] HKCFI 802, [2019] HKEC 906

by

It is well-settled law in Hong Kong that foreign insolvency proceedings are recognised in Hong Kong provided certain criteria are met. Accordingly, the Hong Kong court is empowered to grant the foreign trustee in bankruptcy or liquidator the powers to administer the company’s affairs in Hong Kong ordinarily vested in such an officeholder under that foreign insolvency regime. The recent Court of First Instance case in Re Kaoru Takamatsu [2019] HKCFI 802, [2019] HKEC 906 was the first case in Hong Kong’s history of a Japanese trustee in bankruptcy applying to the Hong Kong court to seek recognition of the Japanese insolvency proceedings and assistance. In line with the Hong Kong court’s practical approach towards many cross-border insolvency issues, Mr. Justice Harris granted the applicant the rights and powers of a Japanese trustee in bankruptcy ordinarily vested in them in Japan vis-à-vis the company’s assets and affairs in Hong Kong.

Background 
The Japanese company Japan Life Co, Ltd (the “Company”) was ordered to be wound up on 1 March 2018 by the District Court of Tokyo, Twentieth Civil Division (the “Tokyo Court”) and Mr Takamatsu Kaoru was appointed Trustee in bankruptcy by the same court on the same day. Mr Takamatsu, being the applicant (the “Applicant”), applied to the Hong Kong Court of First Instance to seek recognition of the Japanese insolvency proceedings and the relevant powers to obtain access to the Company’s bank account records held by two banks in Hong Kong. The application was made by way of written application through the applicant’s Hong Kong solicitors, supported by a letter of request from the Tokyo Court and an affirmation of a Japanese lawyer explaining the Japanese Bankruptcy Code. 

Legal Principles
In the Judgement, the judge made it clear that the Hong Kong court will recognise the foreign insolvency proceedings if the foreign insolvency proceedings are (i) collective insolvency proceedings; and (ii) the foreign insolvency proceedings are opened in the country of incorporation of the company in question. The judge has defined collective insolvency proceedings as “a process of collective enforcement of debts for the benefit of the general body of creditors” in his judgement for another recent court case.

If the above are satisfied, the judge confirmed that standard recognition and assistance by the Hong Kong court will be rendered to the liquidator appointed in a jurisdiction with similar insolvency regimes to Hong Kong, granting substantially similar powers to those the liquidator is empowered in that jurisdiction on the papers.

Decision of the Judge
In his decision, the judge found that although Japan adopts a civil law system, on the evidence, the Company was in collective insolvency proceedings in its place of incorporation. The judge also found that the rights and powers of a trustee in bankruptcy appointed in Japan (by reference to the Japan’s Bankruptcy Act), which extend to inspecting books and documents relating to the bankrupt’s estate, are similar to those of a trustee appointed in Hong Kong. The judge therefore held that it is consistent with established legal principles to grant the Applicant general powers to administer the Company’s affairs, including its assets and seeking documents and information located in Hong Kong.


Conclusion
This particular case serves as the archetypal example where courts in Hong Kong respects and recognises the status of Japanese laws in the area of insolvency and bankruptcy. It undoubtedly serves as a favourable precedent for Japanese liquidators and trustees in bankruptcy facing similar circumstances and needing assistance from the Hong Kong Court. Such decision is a welcoming one. 

OLN provides a full range of legal services catered to our Japanese clients. If you have any questions regarding the above or on any insolvency issues, please contact one of the members of our Japanese Desk.

OLN Ranked by Benchmark Litigation Asia-Pacific 2019

by

OLN ranked “Recommended Firm of 2019” by Benchmark Litigation Asia-Pacific.

Congratulations to our following Practice Areas:

Commercial and Transactions – Tier 3

Family and Matrimonial – Tier 2

Private Client – Recommended

This year, Stephen Peaker has been ranked as Dispute Resolution Star in Family and Matrimonial.

Below is the Benchmark Analysis for our firm:

“Full-service law firm, Oldham Li & Nie is active in commercial and transactions disputes. However, it is particularly lauded for its work in family and matrimonial disputes. The firm’s family law department and probate and estate planning department are led by five partners. Stephen Peaker is a key figure in the family and matrimonial space.

Case highlights include acting on a divorce proceeding involving nearly 30 family trusts in various jurisdictions; acting for Jayjun, a Korean cosmetics brand, in a trademark litigation; and representing Melvin Waxman and Larry Waxman, minority shareholders of a Hong Kong company, in a shareholder dispute.”

About Benchmark Litigation

Benchmark Litigation, the definitive guide to the region’s leading dispute resolution firms and lawyers, was first published in 2008 covering the litigation and disputes markets in the United States and Canada and has broadened its coverage to include Asia – Pacific, Europe and Latin America – becoming a truly global guide.1

OLN Has Been Ranked as Employer of Choice by Asian Legal Business

by

This year OLN has been ranked as one of the three law firms in Hong Kong for the 2019 Employer of Choice, Asia’s Best Law Firms to Work For, by Asian Legal Business. The ALB Employer of Choice Rankings were compiled taking into account responses from more than 2500 private practice lawyers across Asia, ranging from managing partners to paralegals, as well as ALB’s market knowledge. 

The ranking was recently published by ALB magazine April 2019 Asia Edition.

Publication No. 295 of China National Intellectual Property Administration – Change of Official Seals and Formalities for Patent and Trademark Prosecutions

by

On 18 February 2019, China National Intellectual Property Administration (“CNIPA”), formerly known as the State Intellectual Property Office of China (“SIPO”), announced that:

  • Patent Re-examination Board (“PRB”) will be absorbed by Patent Office effective from 1 April 2019; and
  • China Trademark Office of State Administration for Industry and Commerce (“CTMO”), Trademark Review and Adjudication Board (“TRAB”) and Corporation Center for Trademark Examination (“TECC”) will be combined into Trademark Office of China National Intellectual Property Administration (“TMO”) effective from 1 April 2019.

Effective from 1 April 2019, the examination of patent and trademark matters shall be conducted in the name of CNIPA.  The new official seal of CNIPA shall be put into use, so it will replace the previous seals of PRB, CTMO, TRAB and TECC.

For more details, please visit the CNIPA website at http://www.cnipa.gov.cn/zfgg/1135993.htm.

Note 1: The new/updated formality documents published on 1 March of 2019 are substantially the same as previous ones. The slight changes such as from CTMO/TRAB to CNIPA have not affected applicants’ execution so far.

Note 2: Given that the CTMO and TRAB have been incorporated into the CNIPA, the application and granting of trademarks, patents, layout designs of integrated circuits, and GIs is under the independent governance of the CNIPA. So after 1 April 2019, the CNIPA is the defendant/plaintiff in administrative lawsuits in relation to patent and trademark affirmation and authorization.