The Court of Appeal in Tadjudin Sunny v Bank of America, National Association (CACV 12/2015) (hereinafter, “Ms. Tadjudin” and “the Bank” respectively) upheld the Court of First Instance’s decision that the Bank, when it terminated Ms. Tadjudin’s employment, was in breach of the implied term of anti-avoidance, in order to avoid her being eligible under the performance incentive programme.

The crux of the case was whether the Court of Appeal would uphold the Court of First Instance’s finding that there existed an implied term of anti-avoidance in Ms. Tadjudin’s employment contract. It was held that the term is necessary to give effect to the common, reasonable expectation of the parties such that the Bank could not exercise its power of termination under the employment contract in order to avoid Ms. Tadjudin being eligible under its performance incentive programme. The Court of Appeal held that without the existence of this term, the performance incentive programme would become illusory and could be easily taken away by the Bank through the termination of Ms. Tadjudin’s employment. Based on the facts and circumstances of this case, it was held that an implied term of anti-avoidance existed in Ms. Tadjudin’s employment contract, but it was not held that an implied term of anti-avoidance existed in all employment contracts.

The Court of Appeal held that Mr John Liptak (an employee of the Bank and Ms. Tadjudin’s supervisor) was an agent of the Bank, and his malice and intention could therefore be attributed to the Bank. It was also noted that the decision to terminate Ms. Tadjudin’s employment was made collectively by the senior management through the manipulation by Mr Liptak, and there was no reason why Mr Liptak’s intention should not be attributed to the directing mind and will of the Bank in this situation.

In summary, this case represents the judiciary taking a more assertive role in addressing the rights between employers and employees. It also serves as a reminder that employers should be careful when dismissing employees especially where discretionary bonuses are involved because termination of employment close to the payment of a bonus may lead to a claim that there is a breach of an implied term of anti-avoidance.

On 23 June 2016, our partners Mr. Willy Cheng, Mr. Eric Lui and Ms. Heidi Chui attended a gala dinner organised by the Association of China-Appointed Attesting Officers Limited to celebrate the 35th anniversary of the establishment of the China-Appointed Attesting Officer (CAAO) system. The gala was held at JW Marriott Hotel Hong Kong.

(From left to right): Mr. Willy Cheng, Ms. Heidi Chui and Mr. Eric Lui

Representatives from the Ministry of Justice PRC attended the gala to celebrate the milestone together with CAAOs and members of China Legal Service (Hong Kong) Limited and the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region. Mr. Rimsky Yuen, SC, the Honorary Secretary for Justice, also attended the gala.

(From left to right): Mr. Willy Cheng, Ms. Heidi Chui and Mr. Rimsky Yuen, SC

Please contact our Mr Willy Cheng, Mr Eric Lui or Ms Heidi Chui for any enquiries or further information about this event.

On 18 June 2016, our partners Mr. Willy Cheng and Mr. Eric Lui attended the opening ceremony of AllBright Law Offices (Zhengzhou), as well as a conference jointly hosted by AllBright Law Offices and Economic Law Studies Association of Henan Law Society. The conference, titled “Economic Transformation and Legal Services”, hosted numerous speakers who shared their insights on how to provide innovative legal services in order to effectively accommodate the rapidly-changing Chinese market and economy.

Please contact our Mr. Willy Cheng or Mr. Eric Lui for any enquiries or further information about this event.

SW acted for the issuer, Guotai Junan International Holdings Limited (1788.hk), as to Hong Kong laws for its issue of USD 300 million subordinated perpetual securities. The placing agent was Guotai Junan Securities (Hong Kong) Limited. The joint subscribers were China Industrial Securities International Brokerage Limited, CNPC Finance (HK) Limited, China Guangfa Bank-China Southern Fund-QDII1-17, Guotai Junan Financial Holdings Limited and SPDB International Investment Management Limited.

Please contact our Mr. Eric Lui or Mr. Hank Lo for any enquiries or further information about this transaction.

On 16 June 2016, our partners Mr. Eric Lui and Ms. Heidi Chui attended the International Commercial Arbitration Symposium co-organised by AllBright Law Offices, the Shanghai International Economic and Trade Arbitration Commission and the Shanghai International Arbitration Center. The Symposium was held at Shanghai Tower.

Renowned practitioners explored various aspects in relation to commercial arbitration, including the interconnection between litigation and arbitration, how antitrust cases can be arbitrated, and the implementation of the Free Trade Zone Arbitration Rules. Mr. Lui and Ms. Chui delivered a seminar on how interim measures in support of PRC arbitral proceedings can be enforced in Hong Kong, and in particular how asset freezing orders and other forms of injunction can be granted by a Hong Kong court in aid of foreign arbitral proceedings.

Please contact our Mr Eric Lui and Ms Heidi Chui for any enquiries or further information about this event.

SW partners Ms. Catherine Por, associates Ms. Stella Cheng and Mr. Calvin Lo attended the 6th LAWASIA Family Law & Children’s Rights Conference from 9 to 11 June 2016 held at Novotel Century Hong Kong Hotel. Experts in the field from all parts of the globe including members from the judiciary, legal practitioners and mediators have came to share and exchange meaningful insights and developments on a wide range of cross border family law and children’s rights issues.

The position of surrogacy in different jurisdictions, impact of alternative dispute resolution of children, ethical issues for family lawyers, modern family concepts across jurisdictions and more were thoroughly discussed and examined through different forums and from multiple perspectives which included judge’s forum, presentations and case studies. Recent hot topics such as same sex relationships were also explored.

Please contact Ms. Catherine Por for any enquiries or further information about this event.

Official Photos from LAWASIA
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