China Adopts Amendment to the Criminal Law to Outlaw Bribery of Foreign Officials

Recent guest bloggers at the National Law Review from Squire Sanders & Dempsey (US) LLP.Nicholas ChanZijie (Lesley) Li, Amy L. Sommers, and  Laura Wang outline some of the recent changes in Chinese law related to bribery of foreign officials

On February 25, 2011 the PRC adopted Amendment No. 8 of the PRC Criminal Law, criminalizing bribery of foreign government officials and “international public organizations” to secure illegitimate business benefits. This amendment goes into effect on May 1, 2011.

The PRC did not have any law addressing cross-border bribery before and this law will be the first law to condemn bribery of foreign officials. This amendment is the PRC’s effort to comply with the United Nations Convention Against Corruption to which the PRC is a signatory.

The amendment was made to Article 164 of the PRC Criminal Law prohibiting entities or individuals from offering bribes to employees of companies and enterprises who are not government officials. With the amendment, it is a criminal act to bribe foreign government officials or international public organizations.

According to this Article 164, if the payor is an individual, depending on the value of the bribes, he or she is subject to imprisonment up to 10 years; if the payor is an entity, criminal penalties will be imposed against the violating entity and the supervisor chiefly responsible and other directly responsible personnel may also face imprisonment of up to 10 years. Penalties may be reduced or waived if the violating individual or entity discloses the crime before being charged. According to the PRC Supreme Procuratorate issued in 2001, individuals offering bribes of more than RMB10,000 and entities offering bribes of more than RMB 200,000 may be prosecuted under Article 164.

Unlike other bribery-related crimes in the PRC, which focus on the receipt by the briber of ”illegitimate benefits,” bribery of foreign officials or international organizations prohibits securing illegitimate business benefits. In advance of the release of judicial interpretation of what may be “illegitimate business benefits,” the current legal understanding of what is “to secure illegitimate benefits” means in other bribery-related crimes may provide a reasonable basis for understanding this amendment.

The law refers to “officials of foreign countries and international public organizations,” but does not define these terms. For example, it is not clear whether international public organization includes foreign non-governmental organizations.

As of this Alert, no judicial interpretation or administrative regulations regarding the implementation of this provision has been promulgated. It is not clear whether foreign companies may also be subject to jurisdiction under the PRC Criminal Law with respect to this new amendment. We will continue to closely monitor future development related to this amendment.

©Squire, Sanders & Dempsey All Rights Reserved 2011

Financial Services Compliance Summit May 25-26 New York, NY

The National Law Review is a proud media sponsor of the IQPC Financial Services Compliance Summit May 25-26 in New York, NY

Rethinking Compliance Strategies to Maximize Business Value

In the aftermath of the financial crisis, financial institutions must adhere to changing regulations and have undergone a dramatic transformation. These changes have caused a drastic shift in business practices, regulatory oversight, and litigation exposure. Companies are spending immense amounts of time, resources and money to ensure that compliance polices are meeting evolving regulatory mandates

The Financial Services Compliance Summit, led by leading legal and compliance professionals, including senior staff at the SEC, FTC and CFTC will offer expert insights on how to improve internal controls across departments.

Highlighted topics include:

  • Key changes in regulations including the Dodd-Frank Wall Street Reform & Consumer Protection Act, and what it means for broker-dealers and investment advisers
  • Compliance challenges facing financial services companies in this new operating environment
  • Advice on the use of social media and the latest on advertising and marketing restrictions
  • SEC, FINRA and CFTC enforcement and examination developments
  • How to use technology to analyze and create an enterprise-wide compliance program

For Registration and Details:

New Ways of Navigating Today’s Legal Market

Recent Business of Law guest blogger at the National Law Review Marcie L. Borgal Shunk of BTI Consulting Group posted some great tips for staying ahead of the legal business development curve.

Savvy law firm leaders can define new ways of navigating today’s legal market by drawing on a combination of proven tactics and innovative best practices including:

  1. Systematic client feedback every 18–24 months
  2. Quarterly in-person meetings with each attorney’s top 5 clients
  3. Client-specific profiles on the firm intranet, replete with preferences from communication-style to level of detail included in invoices
  4. Brief, relevant highlights of anticipated changes and how they impact your clients distributed online, by email or social media
  5. Draft invoices to share with clients before submitting them for payment
  6. Targeting precise areas of growth within your practice (e.g., Securities Litigation with Energy companies or opportunistic mergers in the Telecom industry — read BTI’s Litigation Outlook 2011 and BTI’s Premium Practices Forecast 2011 for more ideas)
  7. Monthly and event-driven client team meetings to discuss changes in client’s goals, objectives and business needs and identify at least one specific growth opportunity

©2011 The BTI Consulting Group Wellesley, MA

New Ways of Navigating Today’s Legal Market

Some more legal marketing best practices quick tips recently posted at the National Law Review by Marcie L. Borgal Shunk of

BTI Consulting Group:

Savvy law firm leaders can define new ways of navigating today’s legal market by drawing on a combination of proven tactics and innovative best practices including:

  1. Systematic client feedback every 18–24 months
  2. Quarterly in-person meetings with each attorney’s top 5 clients
  3. Client-specific profiles on the firm intranet, replete with preferences from communication-style to level of detail included in invoices
  4. Brief, relevant highlights of anticipated changes and how they impact your clients distributed online, by email or social media
  5. Draft invoices to share with clients before submitting them for payment
  6. Targeting precise areas of growth within your practice (e.g., Securities Litigation with Energy companies or opportunistic mergers in the Telecom industry — read BTI’s Litigation Outlook 2011 and BTI’s Premium Practices Forecast 2011 for more ideas)
  7. Monthly and event-driven client team meetings to discuss changes in client’s goals, objectives and business needs and identify at least one specific growth opportunity

©2011 The BTI Consulting Group Wellesley, MA

 

21st SOX Compliance & Evolution to GRC May 3-4 Boston, MA

The National Law Review is proud to be a Media Partner for the upcoming- 21st SOX Compliance & Evolution to GRC conference May 3-4 in Boston, MA. 

The 21st edition of the SOX Compliance & Evolution to GRC Conference will afford SOX practitioners a unique opportunity to review the required blend of compliance and risk-based strategies and methodologies neccessary to meet federal mandates while developing greater efficiency across their GRC footprint.

Attendees will have the opportunity to:

Formulate methodologies to gain greater efficiency through the deployment of a risk-based approach

Ascertain the impact a cross application of controls will have for SOX and greater GRC efforts

Review innovative approaches for the successful launch and maintenance of control self-assessment initiatives

Identify the latest strategies being utilized to ensure that SOX is a continuous process rather than an annual compliance exercise

Realize the necessity of a cross-functional structured training and continuing education curriculum to ensure consistent performance of SOX controls and integrated GRC efforts

Discover proven approaches for the integration of SOX compliance into GRC

Analyze strategies to engage external auditors in the front end to establish common goals and reduce external expenditures

Key Conference Topics Help You Learn How To:

  • Formulate methodologies to gain greater efficiency through the deployment of a risk-based approach
  • Ascertain the impact a cross application of controls will have for SOX and greater GRC efforts
  • Review innovative approaches for the successful launch and maintenance of control self-assessment initiatives
  • Identify the latest strategies being utilized to ensure that SOX is a continuous process rather than an annual compliance exercise
  • Realize the neccessity of a cross-functional structured training and continuing education cirriculum to ensure consistent performance of SOX controls and integrated GRC efforts.
  • Registration, Location & Details…..

    • May 3-4 in Boston, MA
    • For On-Line Registration and for more complete information Please Click Here:

     

     

    Gateway Practices Promise Premium Law Firm Rates for 2011 – and More

    This week’s Business of Law Guest Blogger at the National Law Review is Marcie L. Borgal Shunk of  BTI Consulting Group. I recently had the pleasure of hearing Marcie speak at Dechert’s offices in Philadelphia at a Delaware Valley Law Firm Marketing Group event – and she ‘put a lot of meat on the bones’ concerning what differentiates law firms in the eyes of inside counsel and what forces drive business to one law firm or one lawyer over another.  The following is a  very brief  post by Marcie on what will be the premium rate legal work in 2011 and why legal consumers are willing to pay top dollar for some legal services and not others:

    Gateway Practices are a law firm’s exclusive invitation into an elite club. They not only provide intimate insights into a client’s most sensitive, high-value needs, but also offer priority access to new business opportunities in other areas (such as high-rate, high-growth opportunities). Gateway Practices are, in essence, the equivalent of a hidden shortcut to the king’s treasures.

    BTI Premium Practices Forecast 2011, based on input from more than 250 corporate counsel, predicts there are 4 Gateway Practices for 2011. These are:

    • Bet-the-Company Litigation
    • Investigations
    • Bankruptcy
    • IP Litigation

    Opportunities in Gateway Practices, however, are not abundantly available. In terms of market size, they are smaller than most other practice areas. Fewer companies have existing matters—for example, just 24.2% of companies have an active bet-the-company litigation at any given time—and the growth prospects for Gateway Practices, most of which are negative, mean competition is intense.

    The only way to win new business in a shrinking practice area is to (1) take work from a competitor, or (2) be first in line for new opportunities.

    Three best practices to position your firm to capture—and keep—this high-powered, top-rate work are:

    1. Be the driving force behind new thinking in how to use legal strategy for business advantage
    2. Take a bullet for your client. Commitment to help is the single most powerful differentiator when hiring for Gateway Practices.
    3. Host regular online or live events which anticipate major risk factors in Gateway Practices

    ©2011 The BTI Consulting Group Wellesley, MA

     

     

     

     

    Risk and Insurance Management Society – RIMS 2011 Annual Conference May 1-5 Vancouver, BC

    FYI from the National Law Review RIMS Risk and Insurance Management Society’s  2011 Annual Conference & Exhibition will gather risk professionals from around the world for a common purpose: to share experiences and gain expertise. Be a part of this community and connect with colleagues, build new relationships and learn from industry experts.

    The RIMS Conference & Exhibition takes place at the Vancouver Convention Centre West in Vancouver, BC – May 1-5.

    View the online program or just the session descriptions.

    Online registration closes April 1st–REGISTER NOW & Save Big over On-Site Registration

    The Six Biggest Mistakes Law Firms Make When They Upgrade Technology

    Recent featured blogger at the National Law Review –  Ben M. Schorr of Roland Schorr & Tower – provides some great insights into common mistakes made by lawfirms when upgrading technology.   

    As an information services professional I’ve spent the past two decades helping law firms with their technology. Over that time I’ve come to identify 6 major mistakes that they tend to make when they install or upgrade new technology.

    #1. They Don’t Have A Goal.

    It’s important before you even consider upgrading your technology to ask this question: What problem are we solving? Too many firms forget what business they’re in and run around installing fancy new systems that don’t address any specific needs. Sometimes they’re talked into it by vendors or consultants; sometimes it’s the brainchild of a computer-savvy associate or staff member. Far too often the result is a lot of money spent for new systems and no increase in productivity. If you don’t have a goal, you’ll never reach it. Back home in Indiana folks say “If you don’t know where you’re going, pull over and stop ’cause you’re there.” This is rarely truer than in technology where you are constantly bombarded with possible routes – in the form of cool toys – but unless you have a destination it makes no sense to even start the car.

    How can I avoid making this mistake?

    Start by identifying the problem. Write it down. Write down the proposed answers. Review the problem (and proposed solutions) with the users and with your information services people (or consultants). Once you have a clearly defined (and agreed upon) problem and solution, set a timetable. Make it realistic. This can be one of the hardest parts of this step because you don’t want to rush things and end up with a hastily implemented, and poorly constructed, solution.  But at the same time you can’t drag your feet too much or the technology will change right out from under you and you may find that your preferred solution has been discontinued in favor of a new and improved (read that “more sophisticated and expensive”) solution.

    #2. They Don’t Talk To Their Users.

    Too many firms get a great idea for a new technology, throw the switch and roll it out to their users without even much warning to the users that it’s going to happen. As a result there is confusion, resentment, fear and a LOSS of productivity.

    How can I avoid making this mistake?

    Don’t just impose change from the top down or you’ll end up with users who resent and are intimidated by the new technology. Ask them what they need. Ask how they will use it. Have them compose a “wish list”. Observe their procedures. You’ll find that the users will accept the new systems much faster and easier if they have some input into its selection/creation. If you’re in a large firm consider putting together a users group of various staff members. Try to include at least two members of each category (partners, associates, paralegals, support staff, accounting, etc.) and don’t just pick the ones who know a lot about technology. Oftentimes the most valuable input will come from that partner or secretary who is awkward with the computers. Have them meet each month and ask them to talk about how the technology is (or isn’t) working for them. Have them suggest improvements. It’s important that you listen to their input and let you know that you value their contributions.

    #3. They Don’t Do Their Homework (Or Pay The Smartest Kid In Class To Do It For Them).

    I often see firms that buy a solution they don’t understand. What is it? How does it work? Why do we need this again? Many times they see a flashy ad or get a presentation from a salesman and sign the papers in the excitement of the moment.   They don’t clearly understand the problem or how this solution solves it.

    How can I avoid making this mistake?

    Do your research. Visit the Internet sites for the products you’re interested in. Visit the sites of some of their competitors. Read the trade magazines and try to keep a handle on what’s happening in the industry. Talk to the users (see #2) and vendors. Attend demos and seminars. You’ll probably have to start learning about the technology at least 3-4 months before you plan to upgrade or the hill will be too steep to climb. If you can’t (or don’t want to) do the research yourself, find a consultant that you feel comfortable with. Get recommendations from other firms in your area of people they’ve enjoyed working with. Ideally the consultant should be familiar with the solutions you’re interested in, but shouldn’t sell those solutions themselves (that way he has no financial interest in selling you something you don’t need). Never hire a consultant that you don’t trust completely. Your consultant should be able to explain the basics of the relevant technology to you in language you can understand and, most importantly, should be able to clearly explain the expected benefits to you.

    #4. They Don’t Document Everything.

    At one firm I worked for, I discovered that they had an entire floor of the building wired for network cabling but didn’t have a map or any other documentation about the cabling. All they had was plugs in the walls and loose wires in the computer closet. As you can imagine troubleshooting cabling problems became quite an adventure. It’s far too common to ask what kind of hardware is in use and have firms not know for sure.   Documentation failures go well beyond cabling – system configurations, numbers of licenses, software in use…oftentimes goes unrecorded and when it’s time to troubleshoot or upgrade there is not enough information available to make good decisions or accurately foresee potential problems.

    How can I avoid making this mistake?

    The solution is easy, but can be tedious. Insist upon complete documentation from your vendors. Maps of cabling. Labels on everything. When you deploy new equipment keep a file that indicates serial numbers and specifications (RAM, hard drive, processor, operating system, etc.). Often you can get that information from the invoice you received for the machine. Keep a list of what software you have in use, how many licenses you own, and what versions you’re running.  Document the date that the system or application was deployed and from where it was purchased. This documentation can make troubleshooting MUCH easier down the road.

    #5. They Skimp On Training.

    This is a VERY common error. It never fails to surprise me when I see a firm that will spend $50,000 on computer equipment but won’t spend $500 to train the users.

    How can I avoid making this mistake?

    The most important part of your system is the user – upgrade them! Would you fly an airline that advertises that “All of our pilots have driver’s licenses and we have a copy of “Big Planes for Dummies” in every cockpit!” I doubt it…yet many of you are flying your firms with crucial personnel who haven’t had even 20 minutes worth of training in the products that you depend upon to get your work done. Even long after the installation training can be productive. You may think that your assistant knows the ins & outs of your word processor, but what if a 2-hour class could teach him or her new tricks or secrets to get things done faster? If these new tricks saved them just 12 minutes a day that would be an entire HOUR each week that they’d gain. In a month they’d have recouped all of the time invested in the class, twice over. This goes for executives as well, by the way…

    Consider bringing in an outside trainer (or even an inside resource) to do a 1-hour lunchtime training in your conference room.  Try producing an internal e-newsletter with tips and tricks for the products you use (ProLaw, Word, Excel, WordPerfect or whatever).  Encourage your users to have interest and discussions about technology.

    Consider creating a “Trick of the Week” award where the person in your firm who submits the best new trick or tip for using your systems wins some prize – maybe a prime parking space in your lot for the week, an extra-long lunch break on Friday or a box of chocolates.

    #6. They Don’t Follow-Up.

    This comes back to talking to your users. If you don’t look out the window how do you know if you reached your destination? Don’t find out 6 months later that the staff hates the new software or that the new printers don’t work properly.

    How can I avoid making this mistake?

    After the upgrade is in place you need to contact your users and ask them if they’re happy. Try to be there when they first use it to get their initial reaction. Check in with them again the following day. Check in again the next week…and again weekly or bi-weekly for the next month or two. Look back at your written “goal” from #1 and see if you’ve solved your problem. If you didn’t, figure out why and make adjustments. Users will often forgive you if you find and fix problems quickly they often won’t forgive you if you give them a “solution” that doesn’t work and then leave them to deal with it on their own. Many times you’ll find that the problems are really “pilot error” and can be corrected with more (or better) training. Sometimes the problems will be equipment or software problems and finding them in the first days or weeks can mean the difference between getting your vendor to replace the inadequate product with something more suitable and getting stuck with it for the long term.

    Preventing these mistakes takes a little effort but it’s not expensive. What’s expensive is making these mistakes and ending up with a system that you paid considerable money for and that leaves your users frustrated and your productivity down.

    Copyright ©2011 Ronald Schorr

    IQPC’s 11th eDiscovery Summit – April 27-29, 2011 San Francisco, CA – Save Big if Registered Before April 1st!

    The National Law Review is a proud media partner for IQPC’s 11th eDiscovery Summit – April 27-29, 2011 San Francisco, CA

    IQPC’s 11th eDiscovery Summit features hands on sessions and practical instruction to bring back to your eDiscovery teams. You will engage with IT and legal focus groups to candidly discuss anticipated push back issues, observe how different roles within your company approach imminent litigation and put bridging the gap strategies into practice.

    It is no secret that you want to reduce the cost of eDiscovery, yet how do you know if you are paying a reasonable price for ESI processing and review? Do not miss this unique opportunity to learn about outside the box pricing structures and benchmark with your peers to gain a realistic picture of fair pricing for electronic information management.

    Why attend the 11th eDiscovery Summit?

    • United States District Court Judges share their experiences with companies committing costly electronic discovery mistakes
    • Bridge the gap between IT and legal through a practical exercise with IT and legal focus groups
    • Learn practical steps to create a solid cross-functional eDiscovery team fostering communication and effective workflow between departments
    • Gain valuable metrics to assess the repeatability and defensibility of your eDiscovery procedures
    • Maximize the benefits of social networking and cloud computing without compromising security and increasing risk
    • Earn CLE Credits! Find out more

    Registration, Location & Details…..

    • April 27 – 29, 2011 The Hyatt Regency San Francisco, CA

    • Save Big on Registration – if you sign up prior to April 1st
    • For More Information and to Register – Please Click Here:

    Why Companies Want Arbitrators Who Have A Public Profile On LinkedIn And The Internet

    Recently posted on the National Law Review by Michelle Sherman of Sheppard Mullin Richter & Hampton LLP – some things to think about involving social media and arbitrators

    Your company has a dispute with a vendor or customer, and the terms of the agreement between the company and the person you are about to sue provide for binding arbitration. It is common for contracts to have arbitration provisions. Arbitration is viewed as less expensive and more expeditious than litigating a dispute in court. Arbitration provisions also allow the parties to agree that consequential (e.g. down time, finance fees, lost profits) and/or punitive damages cannot be awarded. Arbitration also gives the parties more control in deciding who will adjudicate their dispute, rather than having a judge randomly assigned to your case. There are many positives to arbitrating a dispute.

    The only real downside that comes to mind is that arbitration awards are extremely difficult to set aside. In California, an arbitration award will stand unless the party challenging the decision can show (1) “the award was procured by corruption, fraud, or other undue means”; (2) “the rights of the party were substantially prejudiced by the misconduct of a neutral arbitrator”; or (3) an arbitrator failed to make a timely disclosure of a conflict which would be a ground for disqualification. Cal. Civ. Proc. Code § 1286.2. The Federal Arbitration Act includes similar limited grounds for vacating an award, with “evident partiality or corruption in the arbitrators, or either of them,” being one ground. 9 U.S.C. § 10.

    Consequently, companies assume a significant risk when choosing an arbitrator to decide their dispute. Arbitrators also charge rates ranging from $350 – $625 per hour. It behooves the company and its counsel to research the prospective arbitrators before settling on one or a panel of arbitrators. Before the Internet, legal counsel would rely on word of mouth, and seek input from attorneys at their firm. With the Internet and the professional networking site, LinkedIn, there is much more information available.

    On LinkedIn, for example, the potential arbitrators can make their connections available to anyone who is connected to them, which is easy enough to do by accepting a request to connect. This is one way to disclose if they are affiliated with anyone who is a party, witness, or interested party in the action. And, it is an easy way to invite questions if anyone is concerned about a connection, which will not be a problem in most instances. Being “connected” on LinkedIn does not necessarily mean there is a relationship that would “cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial…” Cal. Civ. Proc. Code § 1281.9(a). It is also worth looking at what LinkedIn groups the prospective arbitrators have joined to see if there is anything that would indicate a potential bias in your case. LinkedIn profiles usually include the employment history of the person, and also websites if they have one.

    Information from the Internet has resulted in one judge disqualifying himself when it became public. In the Ninth Circuit, a judge was in the middle of an obscenity trial when the Los Angeles Times broke a story that the judge had an extensive collection of suggestive or explicit images and videos on his personal computer server. It turned out that the server was connected to the Internet, and, through that connection, the images on his personal website had become publicly available. The judge, the Honorable Alex Kozinski, disqualified himself from hearing the obscenity case. Judge Kozinski also declared a mistrial in the case. The newspaper story had raised a suspicion that the court could be biased in favor of the defendants.

    In another case, a motion to vacate an arbitration award was granted because the arbitrator Sean SeLegue did not disclose that his legal practice centered on representing law firms in disputes with their clients, and that he was currently involved in representing a law firm in a fee dispute with it former client. Benjamin, Weill & Mazer v. Kors. The perceived conflict could have been avoided if the arbitrator had disclosed the case. Alternatively, if the party moving to vacate the award had done her due diligence, she would have found numerous Google hits showing the nature of the arbitrator’s practice, including his profile on his law firm’s website, and his membership in the Association of Discipline Defense Counsel, an organization that describes itself as the “bar association for lawyers who represent lawyers and others in disciplinary, admissions and regulatory proceedings before the State Bar of California and the California Supreme Court.” Since Kors was in a fee dispute with her prior counsel, she would have probably asked SeLegue to withdraw as one of three arbitrators if she had known about his potential conflicts. A motion for rehearing has been granted in this case, so the case cannot be cited.

    At a February 2011 conference for arbitrators in Los Angeles, one speaker reportedly told his audience that arbitrators should avoid social networking sites altogether, including LinkedIn because of the risk of perceived conflicts. This advice is misguided and shortsighted. The problem does not rest in having a presence on LinkedIn or the Internet. In fact, this may be one of the best ways for professionals to make themselves known and visible. This is especially true in fields where there is lots of competition, and a wide range of choices. It is unreasonable and unfair to discourage arbitrators, who are drawn from retired judges, law professors, litigators and trial attorneys, from having websites, participating in LinkedIn groups, or taking advantage of the resources on the Internet to market themselves. Also, information on the Internet benefits parties who are trying to find the most suitable arbitrator(s) for their dispute.

    The better wisdom is for arbitrators to immediately disclose to parties who are considering their services where they appear on the Internet (websites, professional associations, blog articles), and invite the parties upfront to connect if they want to see a list of their LinkedIn connections.

    When choosing an arbitrator, remember the Internet and LinkedIn are wonderful resources that can possibly provide more information than word of mouth, and second hand information. The upside is possibly avoiding an arbitration award that will be binding and final, if a better “neutral” had been selected with a little investment of time and knowledge of the Internet.

    Copyright © 2011, Sheppard Mullin Richter & Hampton LLP.