(中文) 继香港国际仲裁中心（“HKIAC”）于2017年8月29日发表关于第三方资助条款拟作出的相应修订（“HKIAC草案”）后，中国国际经济贸易仲裁委员会香港仲裁中心（“贸仲香港”）也推出了《第三方资助仲裁指引》（“指引”），鼓励涉及第三方资助的仲裁当事人和仲裁员遵循指引进行仲裁程序。第三方资助将允许提供资助的自然人或法人（“资方”）向仲裁当事人（“受资方”）直接或间接提供资金或其他实质性的支持，以期获得仲裁裁决带来的经济利益。自2017年6月14日第三方资助在香港的立法突破以来，第三方资助在香港仲裁中的地位越发重要。

值得注意的是，与纳入商事仲裁规则条款的HKIAC草案不同，贸仲香港的指引并非强制性规范。因此，如果仲裁案件含有第三方资助，仲裁双方及仲裁员并不会被视为当然地适用指引的全部或部分内容。

指引除引言外，由三个部分构成，分别针对寻求资助的仲裁当事人（“求资方”）、受资方和仲裁庭的角色提供相应的建议。

寻求资助的仲裁当事人
指引开篇的条款便是建议求资方以正式的资助仲裁协议形式确立与资助安排有关的条款和条件（第2.1条）。而在订立资助协议之前，指引提出求资方应考虑寻求独立的法律意见（第2.2条），确保法人形式的资方资金系合法设立（第2.3条）且可以满足资助协议的预期需求（第2.4条）。

同时，指引提出求资方应注意按照相应协议的仲裁规则等产生的保密义务与披露义务（第2.5-2.7条）。由于资方可能会要求披露案情资料以决定是否资助，指引提醒求资方在寻求资金时应注意与仲裁案件有关协议或者适用法律中所涉及的保密义务。值得注意的是，贸仲仲裁规则2015年版的保密条款（第38条）现时并未解除第三方资助下仲裁案件的保密义务。这与HKIAC有关第三方资助参与仲裁的保密性修改草案形成对比：草案拟在2013版机构仲裁规则第42条（现调整为45条）保密性（Confidentiality）下的第45.3项中加入(e)项，将向资方寻求第三方资助的披露作为豁免情况。指引还提醒求资方，应考虑与资方达成保密协议，并在必要情况下，咨询相关法律以寻求保护资料的保密性。

指引亦提醒求资人注意败诉时的责任划分（第2.8条）、资方对于仲裁程序的介入和干预意向（第2.9条）以及资助撤回的后果（第2.10条）。

受资方
关于对受资方的规定，指引与HKIAC草案如出一辙地提出了受资方对于资助协议的披露义务。指引中规定，无论是达成了资助协议（第3.1条）还是终止了资助协议（第3.2条），受资方应“毫不延迟”通知贸仲香港仲裁员、仲裁庭和其他各方当事人。然而，指引中并未规定“毫不延迟”的具体内容，甚至在英文版本中对于披露期限未有提及。相较于HKIAC草案中根据香港仲裁条例（第609章）所采纳的15天内书面通知的披露要求，指引对披露义务的规定仍留有诠释的空间。

仲裁庭
不同于HKIAC草案，指引在仲裁庭的权力和义务上给予了一定的篇幅。指引赋予仲裁庭根据案情，邀请或要求受资方披露资助，包括受资方受资助的事实、资方的名称及地址、以及其他相关法律或规则所要求的、或者仲裁庭认为必要的其他资料（第4.1条）。新加坡国际仲裁中心投资仲裁规则（第24（l）条）也有类似条款，但是该规则下的权力仅限于对资助事实、资方身份、资方获得仲裁裁决带来利益的细节以及资方是否承担败诉费用的披露。相比之下，指引下的条款赋予仲裁庭要求披露的权力范围更广，对受资方以外的人员给予保护更多。

除此之外，指引要求仲裁庭知悉第三方资助后主动考虑对其独立性和公正性的影响，并采取相关措施（第4.2条）。同时，指引迎合国际仲裁的发展，明确允许仲裁庭在审核仲裁费用的保证金申请时考虑第三方资助的存在和程度（第4.3条）。

展望
贸仲香港与HKIAC对第三方资助的关注无疑证明了第三方资助在国际仲裁发展中将会越来越重要。两家国际仲裁机构先后作出的尝试，说明在第三方资助的规管上已经达成了一定的标准，然而，具体的规定管理仍存在一定的差异。贸仲香港本次出台的指引详细地从求资方、受资方和仲裁庭的角度出发，提供建议，是对第三方资助规管的一次良好的尝试。对于求资方的多重提醒也是希望仲裁当事人在第三方资助日渐发展的背景下仍能慎重思考。与此同时，HKIAC草案的公众咨询也广受关注，相信会引发关于第三方资助更多的讨论，帮助实现第三方资助行业的专业化和规范化。

如阁下对指引、HKIAC草案或第三方资助有任何查询或想了解更多详情，请联络本所诉讼及争议排解部门主管徐凯怡律师 。

US to sanction 4 countries for refusing to accept deported immigrants

The US Government will impose visa sanctions on four countries due to their refusal to take back deported immigrants. In reaching this decision, the spokesman of the Department of Homeland Security (“DHS”) said that all countries should begin to meet their obligations to repatriate their own citizen when the US tries to deport them. However, the spokesman refused to name the four countries.

The State Department and the DHS have the power to sanction countries that are uncooperative. In the past 16 years, such power has been used twice: against Guyana in 2001 and Gambia in 2016. Whilst in the past two cases, the State Department only stopped issuing visas to government officials and their families, it is uncertain the extent to which the State Department may impose the sanction on this occasion.

The U.S Immigration and Customs Enforcements have regularly kept a list of countries/jurisdictions that are considered to be uncooperative in deportation. Currently, 12 countries/jurisdictions are on the list, including: China, Hong Kong, Cuba, Vietnam, Laos, Iran, Cambodia, Myanmar, Morocco, South Sudan, Guinea and Eritrea.

If the US Government imposes visa sanctions against these 12 countries/jurisdictions, it may have a serious impact.

(Source: http://www.washingtontimes.com/news/2017/aug/23/4-countries-sanctioned-because-of-refusal-to-accep/)

On 29 August 2017, Deloitte China hosted a cocktail reception at its Hong Kong office in celebration of the firm’s centenary milestone in the China marketplace. Mr. Hank Lo, Ms. Cornelia Chu and Mr. Terence Lau were honored to be there and share in the celebration together with other distinguished guests from the government and business community, including Mrs. Carrie Lam Cheng Yuet-ngor, the Chief Executive of HKSAR.

From Left to right: Mr. Wilson Wong (Director of Big Success Global Holdings Ltd), Mr. Bong Chan (Partner & Southern Region Central Business Development Leader of Deloitte China), Mr. Hank Lo, Ms. Cornelia Chu, Mr. Terence Lau, Mr. Eric Chan (CFO of Pegasus Entertainment Holdings Limited), Ms. Polly Lee (Partner of Deloitte China – Audit & Assurance), Mr. Jim Chung (Tax Partner, Deloitte China) and Mr. Fong Ho Wan (Director, Central Business Development of Deloitte China)

“We’ve worked with Deloitte on a number of successful deals in the past decades. We wish them continued success and growing more business opportunities together,” said Mr. Lo.

Please contact Mr. Hank Lo, Ms. Cornelia Chu or Mr. Terence Lau for any enquiries or further information about this event.
 

On 25-26 August 2017, SW Partner Ms. Sherlynn Chan and Senior Associate Ms. Hazel Wong attended a two-day conference on “Compulsory Mental Health Treatment in Hong Kong: Which Way Forward?” at The University of Hong Kong.

The conference was organized by The Centre of Medical Ethics and Law (CMEL). The Centre was jointly established by the Faculties of Medicine and Law at the University of Hong Kong in 2012. The two-day conference discussed the broad issues in compulsory mental health treatment from a comparative perspective, as well as how these issues manifest themselves in hospital and community mental health practice.

Judge Mark Hinchliffe, Deputy President of the Health, Education and Social Care Chamber of the First-tier Tribunal in England together with professors and specialized doctors from University of Cambridge, University of Oxford, University of Hong Kong, were amongst the prominent panel of speakers at the conference.

“A most inspiring and thought provoking conference”… “I am excited to see the passion and concerns of prominent speakers around the world on such an important, but not often spoken about topic on Mental Health issues. I hope that the Hong Kong community will pay more attention to mental health care for patients and make appropriate revisions to the Mental Health legislation.” said Ms. Sherlynn Chan

Please contact Ms. Sherlynn Chan and Ms. Hazel Wong for any enquiries or further information.

Trump delays new US visa program

President Trump’s administration has delayed a new US visa program that is designed to allow start-up international entrepreneurs to secure government funding. The program was supposed to be effective on July 2017; however it will be postponed until March 2018, subject to the review of Department of Homeland Security.

Normally, there are three ways for businessmen to enter the US: L1A intra-company transfer Visa, E-2 Treaty Investor visa or EB5 Immigrant investor visa. Nevertheless, not everyone can fulfill those criteria; some Indian or Chinese nationals cannot obtain either an E1 or E2 visa, and the new visa program was said to improve the chances of acquiring an investor visa and benefit the country economically.

A group of US investors and business people have already written to Trump to urge him to commence the new visa program, since entrepreneurs’ immigrant plays an important role in creating more job opportunities in the US.

The third “Qianhai Legal forum” was successfully held in Qianhai Shenzhen-Hong Kong Youth Innovation and Entrepreneur Hub on 25 August, 2017, hosted by Shenzhen Lawyers Association and co-organized by Institute of Qianhai International Cooperation Legal Studies and the Joint Venture (Qianhai) between AllBright Law Offices and Stevenson, Wong & Co.

The forum attended by professionals from the legal and other various sectors in Hong Kong and Shenzhen, including distinguished guests Mr. Zheng Dingxiang, Deputy Director General of the Comprehensive Administrative Law Enforcement Bureau and Assistant Commissioner of Legal and Social Construction Promotion Division; Mr. Yang Weiwen, Principal Staff of Human Resources (Talent Affairs) Division; Mr. Xun Kai, Vice Principal Staff of Legal and Social Construction Promotion Division; Mr. Xiong Daikun, Vice-president of Hong Kong, Macau, Taiwan and Foreign Affair Committee of Guangdong Lawyers Association; representative from the host organization, Ms. Meng Di, President of Qianhai Work Committee of Shenzhen Lawyers Association; and representatives from co-organizers, Mr. Chen Fang, Vice President of Institute of Qianhai International Cooperation Legal Studies; Mr. Xie Yongyi, Chief Secretary of Institute of Qianhai International Cooperation Legal Studies; Ms. Heidi Chui, Partner and Head Of Litigation and Dispute Resolution Department of Stevenson, Wong & Co.; Ms. Zita Huang, Business Development Manager (China) of Stevenson, Wong & Co. and Mr. Zong Shicai, Partner and Director of AllBright Law Offices.

[From Left to Right: Ms. Katy Lai, Mr. Calvin Huang, Mr. Jensen Chang, Ms. Evania Mok, Ms. Zita Huang, Mr. Lawman Li, Ms. Heidi Chui, Mr. Zheng Dingxiang, Mr. Chen Fang, Ms. Meng Di, Mr. Zong Shicai, Ms. Libby Guo, Mr. Yang Weiwen, Mr. Xun Kai, Mr. Xie Yongyi, Mr. Kyle Lo]

Overwhelming Reaction from the Audience
Ms. Heidi Chui, our Partner and Head of Litigation and Dispute Resolution Department, was invited to deliver a keynote address on the topic of “Enforcement of Judgments and Arbitral Awards between the Mainland and Hong Kong: the Latest Development of Judicial Practice and Inspiration”. Ms. Chui shared with the audience her practical strategies on cross-border litigation involving Hong Kong and the Mainland, which was well received by an eager audience. From the judicial practice of parallel proceedings to freezing orders, Ms. Chui offered detailed analysis and workable solutions in maximizing the advantages while minimizing the risks of cross-border litigation and international arbitration. Her analysis with vivid case examples enlightened the forum and fostered an interactive environment with the audience.

To further demonstrate how to resolve disputes effectively through arbitration, a lively mock arbitration was presented by Ms. Chui and her team including Senior Associate Ms. Katy Lai, Associates Mr. Kyle Lo and Ms. Evania Mok, and Trainee Solicitors Mr. Jensen Chang and Mr. Calvin Huang. The mock arbitral hearing displayed a unique cross-examination scene, which was well received with a warm welcome from the audience. Under the common law, the opposing party, during cross-examination, will be given the opportunity to cross-examine a witness with a series of questions, in order to discredit the witness and his oral evidence. Ms. Chui’s team demonstrated a perfect demeanor of barristers with great eloquence, and their battle of wits has immersed the audience completely in the mock arbitral hearing.

Ms. Zita Huang, our Business Development Manager (China), also delivered a keynote speech on “Wealth Inheritance: CRS and Taxation”. With years of experience, Ms. Zita Huang shared feasible wealth management plans in the context of the common reporting standard. Her speech, which was simple but profound, has deepened the audience’s understanding of the topic and promoted active interaction between the speaker and the audience.

The sharing of other guest speakers at the salon was equally engaging. Mr. Zheng Dingxiang fully affirmed the significance of the “Qianhai Legal Salon” in promoting development of the rule of law in Qianhai and Hong Kong. In his welcome remarks, Mr. Zheng gave his thoughts on the comprehensive development and establishment of the rule of law in Qianhai. In his words, as the important strategic platform of promoting a new round of reform and opening up, Qianhai has earnestly implemented the strategic plans of the government at the central, provincial and local levels to become the core engine for the development of Guangdong-Hong Kong-Macao Big Bay Area (GHMBBA), the Guangdong-Hong Kong-Macau in-depth cooperation demonstration zone and the new centre of the Shenzhen city.

Partners of AllBright Law Offices also received great popularity in their sharing sessions. Mr. Lawman Li gave a speech on the topic of “Cross-Border Commercial Cases’ Handling and Cooperation” while Ms. Libby Guo, shared her expertise on the topic of “Cross-Border Family Business’s Cooperation and Innovation”. Both of their speeches have offered the audience a deeper understanding of the relevant issues.

A Fruitful Trip to Qianhai
During our firm’s visit to Qianhai, Mr. Xie Yongyi introduced the history and mission of Institute of Qianhai International Cooperation Legal Studies. Ms. Chui and her team were impressed by the advanced facilities and enormous recognition of excellence received by the Institute and the Guangdong Sincere (Qianhai) Partners & Attornets.

To Seize Opportunities and Deepen Cooperation
The event has enabled our firm to gain firsthand experience of Qianhai’s development. We are grateful to the hospitality and kindness from the leaders of Authority of Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperative Zone and the host organization. It has been an honour for our firm to share ideas with the elites in Qianhai. Ms. Chui said, considering the rapid development, it is conceivable that Qianhai will play a vital role in the integration and economic exchanges between China and Hong Kong. She hopes that Qianhai and Hong Kong will strengthen and deepen their legal service cooperation in the future.

Please contract Ms. Heidi Chui for any inquiry or further information.